NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 11, 2014*
Decided December 19, 2014
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 14‐1597
TIFFANY FABIYI, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11 C 8085
MCDONALD’S CORPORATION,
Defendant‐Appellee. Young B. Kim,
Magistrate Judge.
O R D E R
For 10 years Tiffany Fabiyi had succeeded as a McDonald’s crew member—her
duties included running the cash register, making fries, cleaning the kitchen, mopping
floors, collecting dirty trays, and sweeping the parking lot—but then beginning in 2008
the company grew increasingly critical of her performance. Though apparently still
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2).
No. 14‐1597 Page 2
employed by McDonald’s, she has been on “unpaid leave” since 2011. In this lawsuit
claiming employment discrimination in violation of federal and state law, see 42 U.S.C.
§§ 1981, 2000e‐2(a), 2000e‐3(a), 12112(b), 12203(a); 775 ILCS 5/1‐103(J), 5/2‐102(A), Fabiyi
alleged that McDonald’s falsely accused her of poor performance to mask discrimination
based on race, sex, marital status, and a disability, and then retaliated when she
complained. McDonald’s countered that Fabiyi simply was not doing her job well. The
district court (a magistrate judge, presiding by consent) granted summary judgment for
McDonald’s. The court reasoned that Fabiyi, who relied on the indirect method of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), did not establish a prima facie
case of discrimination or retaliation. We agree with that assessment.
As Fabiyi sees things, discrimination and retaliation are evident from a number of
management decisions. In 2008 she was not selected to train for promotion to “crew
trainer.” From 2010 on she did not receive a raise, and that year she was suspended for a
week. Then beginning in early 2011 her hours were cut, and in June of that year she was
placed on an unpaid leave of absence. Our review focuses on these allegations.
Fabiyi also says that supervisors yelled at and reprimanded her, sometimes in
front of coworkers, but this is not conduct sufficiently adverse to sustain a claim of
discrimination or retaliation. See Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101,
1105–06 (7th Cir. 2012); Hottenroth v. Vill. of Slinger, 388 F.3d 1015, 1029–30 (7th Cir. 2004);
Griffin v. Potter, 356 F.3d 824, 829–30 (7th Cir. 2004). The same is true about Fabiyi’s
allegation that a male coworker “rubbed” her buttocks on two occasions about a year
apart. Though nominally a “swing manager,” the coworker had no ability to affect the
terms or conditions of Fabiyi’s employment, see Rhodes v. Ill. Dep’t of Transp., 359 F.3d
498, 506 (7th Cir. 2004), and in any event McDonald’s promptly investigated the first
incident, and Fabiyi never told the company about the second, see Lucero v. Nettle Creek
Sch. Corp., 566 F.3d 720, 731–32 (7th Cir. 2009). More importantly, a coworker’s offensive
behavior, in order to support a claim of sexual harassment, must be objectively severe or
pervasive enough to create an abusive working environment, see Hilt‐Dyson v. City of
Chicago, 282 F.3d 456, 462–63 (7th Cir. 2002), and these two isolated incidents were not,
see id. at 462–63 (two incidents of unwanted back rubbing); Adusumilli v. City of Chicago,
164 F.3d 353, 361–62 (7th Cir. 1998) (four isolated incidents of unwanted touching of arm,
finger, and buttocks); Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 706–08 (7th Cir. 1995)
(one incident of supervisor rubbing foot against plaintiff’s leg and another where he
grabbed her buttocks); McMiller v. Metro, 738 F.3d 185, 188‐89 (8th Cir. 2013) (kissing
twice on face and trying three times to put arms around plaintiff). Except as necessary
for context, we need not say more about these latter allegations.
No. 14‐1597 Page 3
With that we turn to the evidence. By the time McDonald’s moved for summary
judgment, both of the lawyers recruited by the district court had withdrawn because of
disagreements with Fabiyi over strategy. She responded to the company’s statement of
material facts and offered more facts of her own, but the district court reasoned that most
of her submissions did not include adequate citations to the materials in the record and
disregarded them. See N.D. ILL. CIV. L.R. 56.1(b)(3); Cady v. Sheahan, 467 F.3d 1057, 1060–
61 (7th Cir. 2006) (explaining that party violates Local Rule 56.1 by failing to “adequately
cite the record” when disputing movant’s statement of material facts). We likewise
disregard those submissions. See Patterson v. Ind. Newspapers Inc., 589 F.3d 357, 360 (7th
Cir. 2009) (explaining that we will enforce district court’s choice to demand strict
compliance with local rules governing summary judgment); Fed. Trade Comm’n v. Bay
Area Bus. Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005) (same). Unless otherwise noted,
the following facts are undisputed and presented in the light most favorable to Fabiyi, as
the party opposing summary judgment. See Arizanovska v. Wal‐Mart Stores, Inc., 682 F.3d
698, 702 (7th Cir. 2012); SMS Demag Aktiengesellschaft v. Material Sci. Corp., 565 F.3d 365,
368 (7th Cir. 2009).
In 2008, Fabiyi wanted to become a “crew trainer.” She asked to be trained for that
position, but crew trainers must be available to work as needed (including evenings and
weekends), a condition that Fabiyi was unwilling to meet. She was not selected or
trained for the position, which prompted her to call McDonald’s “business integrity
line,” a complaint hotline, in March 2009. The following week Fabiyi received an overall
rating of “good” on her performance evaluation, but after that she was reprimanded five
times in eight months for insubordination, unexcused absences, leaving during her shift,
refusing to work the fry station, and shorting her cash register. Meanwhile, a
human‐resources manager investigated Fabiyi’s hotline complaint and in October 2009
concluded that she was not trained as a crew trainer because she did not meet the
availability requirements.
Fabiyi called the hotline again in January 2010 complaining that a supervisor had
berated her for requesting a performance review. She soon received that review, which
rated her overall performance as “needs improvement.” McDonald’s bases wage
increases on performance reviews, and Fabiyi’s rating made her ineligible. She was not
happy and called the hotline a third time, accusing management of withholding a raise
because of her sex. She also complained again about not being trained as a crew trainer,
which she attributed to being black. Two days after this call, Fabiyi’s register admittedly
was short, and she was reprimanded. The following month, in February 2010, a
No. 14‐1597 Page 4
human‐resources manager concluded after investigating that Fabiyi did not receive a
raise because of subpar performance, not as a result of discrimination or retaliation.
Three months later, in May 2010, Fabiyi was suspended for a week after
accumulating three unexcused absences. This time she not only called the hotline
alleging discrimination, but also filed an administrative charge of race and sex
discrimination and retaliation with the Illinois Department of Human Rights. Later that
month she called the hotline again and reported (for the first and only time) that the
swing supervisor had touched her buttocks. Just hours after making that call she was
sent home for arguing with a coworker at the front counter. The director of human
resources investigated the alleged touching but could not substantiate the incident,
which the swing manager denied.
Fabiyi received another “needs improvement” rating in July 2010. Later in the
month a supervisor assigned her to clean the lobby and parking lot, but she refused on
the basis of “seniority,” even though McDonald’s does not allocate tasks by seniority.
Fabiyi was reprimanded, yet in October 2010 she again refused to clean the lobby and
parking lot, this time saying that these tasks were for janitorial staff. When a supervisor
asked if a medical condition prevented her doing as asked, she responded in the
negative.
Fabiyi called the hotline again in December 2010 to complain generally that she
was being discriminated against. Her hours were reduced beginning in January 2011,
which her supervisor said was partly because of her “needs improvement” ratings.
McDonald’s uses computer software to schedule workers based on availability,
anticipated sales, and performance ratings. The human‐resources director investigated
again, and in February 2011 rejected Fabiyi’s claim of discrimination.
In April 2011 Fabiyi filed a second administrative complaint with the Illinois
Department of Human Rights, this one resurrecting her May 2010 accusation against the
swing manager (and also saying there had been a second, unreported incident on an
unspecified date). Two days later Fabiyi received another “needs improvement” rating,
which again kept her from receiving a raise and led to a further reduction in hours.
Then in June 2011 Fabiyi refused for a third time to clean the lobby and parking
lot. Her reason on this occasion was that the assignment should be given to a new hire.
She was reprimanded and sent home after being told that documentation was required if
she thought that a medical condition prevented her from doing the assigned cleaning.
No. 14‐1597 Page 5
She immediately called the hotline and said she had told her supervisor that her back
pain prevented her from doing the work that had been requested. The following day an
operations consultant discussed the reprimand with Fabiyi. When she told the
consultant about her back pain, he also requested documentation. When two weeks later
she brought a note from an emergency room doctor saying that she should not bend over
a heavy mop and should avoid bending over the fry station for more than 30 minutes, a
human‐resources manager requested more information about these restrictions,
including their duration. Meanwhile, Fabiyi was placed on unpaid leave until her doctor
could verify that she was able to perform the essential functions of her job. Fabiyi later
brought a second note from her personal physician explaining, not that she could
perform the essential functions of a McDonald’s crew member, but instead that she
suffered from chronic back pain and could not engage in heavy lifting or excessive
bending. The doctor supplied another note in August, this one asserting that, for the next
three months, Fabiyi should bend only as tolerated and not lift more than 10 pounds. He
provided additional notes in January and March 2012, each renewing these restrictions
for another three months. As he would later admit during his deposition, however, the
doctor had no clinical basis for these restrictions. When the final three‐month period
ended, Fabiyi ignored requests from human‐resource’s personnel for updates. After this
Fabiyi did not return to McDonald’s (she took a job as a bus driver at a higher wage), but
when deposed she insisted that she would like to return.
The district court concluded that a jury could not reasonably find from this
evidence that Fabiyi was subjected to discrimination or retaliation. As the court
explained, she did not dispute that her unavailability for evening and weekend shifts
made her ineligible when she sought training and promotion to crew trainer in 2008.
Similarly, the court reasoned, Fabiyi’s undisputed, ongoing failure to meet McDonald’s
legitimate performance expectations explains the absence of raises beginning in 2010 and
her suspension that same year. Moreover, the court continued, Fabiyi lacks evidence that
any coworker with like performance issues was receiving more hours when hers started
to decline in 2011. As for Fabiyi’s claim of retaliation, the court concluded that the
temporal proximity between her complaints and the alleged adverse actions was too
tenuous to suggest a causal link, and that Fabiyi had not presented evidence showing
that her supervisors knew about her protected activity. And finally, the court reasoned, a
jury could not find for Fabiyi on her claim of disability discrimination because she did
not introduce evidence that she could perform the essential functions of her job as a crew
member even with reasonable accommodation.
No. 14‐1597 Page 6
On appeal Fabiyi criticizes her appointed lawyers, but their performance is not
ground for reversal in this civil case. See Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir.
2001). Otherwise, despite listing many issues in her brief, she does little more than insist
that she submitted significant evidence of race, sex, and disability discrimination and
retaliation without providing us an “articulable basis for disturbing the district court’s
judgment.” Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001); see FED. R. APP. P.
28(a)(8)(A); Ball v. City of Indianapolis, 760 F.3d 636, 645 (7th Cir. 2014).
As we read her brief, Fabiyi essentially argues that the district court erred in not
crediting her evidence. She specifically points to her calls to the hotline, an (allegedly
false) Equal Employment Opportunity report written by a human‐resources manager,
affidavits from McDonald’s supervisors and human‐resources employees documenting
Fabiyi’s performance shortcomings, the comparators she named in her complaint,
satisfactory performance evaluations from her first ten years at McDonald’s and a
positive evaluation from the employer that hired her after she last worked for the
restaurant. Whatever the strength of these materials, we have already noted that the
district court was entitled to enforce Local Rule 56.1 by accepting McDonald’s statement
of material facts, since Fabiyi’s response did not adequately cite to the evidentiary
materials she submitted or any others in the record. In any event, there is little in the
materials Fabiyi discusses that seems helpful to her. Her calls to the hotline were
allegations of discrimination and retaliation, but these conclusory allegations were not
evidence that create a disputed issue of material fact. The affidavits from the
McDonald’s employees recount her performance inadequacies, not successes. She does
list names and what appear to be hourly wages of coworkers, but this effort to identify
comparators was lacking essential details about race, sex, and performance from which a
jury reasonably could conclude that Fabiyi was treated differently from similarly
situated employees outside of her protected classes. And, finally, the district court did
take into account Fabiyi’s favorable ratings in prior years, but this information, like the
positive evaluation from Fabiyi’s next employer, does not place in dispute any of the
evidence McDonald’s submitted about 2008 through 2012.
One other point from Fabiyi’s brief bears mention. She disagrees with the district
court’s conclusion that a jury could not reasonably base a finding of retaliation on the
timing of her many allegations of discrimination relative to the company’s adverse
actions. In the district court, Fabiyi asserted that her suspension, five months after she
had complained about being denied a raise, was retaliatory. She said the same about the
reduction in hours seven months after she had filed her first administrative complaint
with the Illinois Department of Human Rights, and about her placement on unpaid leave
No. 14‐1597 Page 7
three months after filing her second administrative complaint. “In egregious cases,
suspicious timing alone might create a triable issue on causation,” but “it rarely does.”
Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 389–90 (7th Cir. 2012). Here, the district
court was correct; these intervals of three, five, and seven months between Fabiyi’s
complaints and the alleged retaliation do not alone create a material issue of fact about
whether Fabiyi’s complaints were the cause. See Argyropoulos v. City of Alton, 539 F.3d
724, 734 (7th Cir. 2008) (seven‐week interval alone insufficient); O’Leary v. Accretive
Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011) (60‐day interval alone insufficient); but
see Magyar v. Saint Joseph Reg’l Med. Ctr., 544 F.3d 766, 772–73 (7th Cir. 2008) (nine‐day
interval plus tone of supervisor’s statements sufficient); Lang v. Ill. Dep’t of Children &
Family Servs., 361 F.3d 416, 419–20 (7th Cir. 2004) (one‐month interval and evidence that
discipline for absences was fabricated was sufficient).
We have reviewed Fabiyi’s remaining contentions and conclude that none merits
specific discussion. Accordingly, the judgment of the district court is AFFIRMED.