Moser v. Indiana Department of Corrections

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 04-1130
RHONDA L. MOSER,
Plaintiff-Appellant,
v.

INDIANA DEPARTMENT OF CORRECTIONS,
CAMP SUMMIT BOOT CAMP, DANIEL RONAY,
individually, and in his capacity as Youth
Service Administrator, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 02 C 491—Robert L. Miller, Jr., Chief Judge.
____________
ARGUED NOVEMBER 4, 2004—DECIDED MAY 5, 2005
____________

Before BAUER, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Rhonda Moser filed this action
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq., against the Indiana Department of
2 No. 04-1130
1
Corrections (“DOC”) for alleged sex discrimination, hostile
work environment and retaliation. The district court granted
the DOC’s motion for summary judgment on the Title VII
claims and dismissed the supplemental state law claims.
Ms. Moser has appealed. For the reasons set forth in the
following opinion, we affirm the judgment of the district
court.

I
BACKGROUND
A. Facts
Ms. Moser began working for the DOC in 1981 at Summit
Farm Work Release, which later became Camp Summit Boot
Camp (“Camp Summit”), a juvenile facility. Ms. Moser
started as a typist and was promoted to a secretarial posi-
tion in 1990. In 1997, her position was reclassified as admin-
istrative assistant, and, in addition to her clerical duties, she
acted as Camp Summit’s affirmative action coordinator. Prior
to her transfer to Westville Correctional Facility (“Westville”)
in 2001, Ms. Moser had received highly positive perfor-
mance evaluations.
In 1997, Daniel Ronay began working at Camp Summit
after he was transferred from his correctional officer posi-
tion at the DOC’s Westville Transitional Unit. In June 2000,

1
The defendants argued before the district court that Camp
Summit Boot Camp, Daniel Ronay and Linda Commons could
not be held liable under Title VII because they were not employ-
ers as defined by the statute. Ms. Moser did not respond to the
defendants’ argument, and, therefore, the district court viewed
her Title VII claims as relating only to the DOC. On appeal,
Ms. Moser has not challenged the district court’s decision.
No. 04-1130 3

another Camp Summit employee, Gloria Thode, filed an in-
ternal sexual harassment complaint against Ronay. At the
direction of Camp Summit’s then-Superintendent Cecil
Davis, Ms. Moser, in her capacity as the affirmative action
coordinator, investigated Thode’s allegations. Ms. Moser
found that the allegations could not be substantiated.
Almost a year later in April 2001, Ms. Moser complained
to Superintendent Davis about Ronay’s behavior.
Superintendent Davis encouraged employees to resolve prob-
lems between each other, and, therefore, Ms. Moser wrote a
letter to Ronay advising him that she had been offended by
certain of his remarks and had felt harassed. In response,
Ronay wrote a letter to Ms. Moser, in which he apologized
but said that he had been offended by some of Ms. Moser’s
behavior as well. According to Ms. Moser, the harassment
stopped after the exchange of letters. R.35, Defendant’s Ex.C
at 251.
Subsequently, in early August 2001, the Chief Investigator
for the DOC’s Office of Internal Affairs, William Plank,
began to investigate Thode’s harassment complaint against
Ronay. As part of his investigation, Plank spoke to
Ms. Moser about her earlier investigation of Thode’s claims.
At that time, Ms. Moser revealed to Plank that she also had
felt sexually harassed by Ronay. Plank referred Ms. Moser’s
claim to the DOC’s central office, and an investigation was
commenced by Jayne Brown, a regional affirmative action
coordinator.
On August 20, 2001, Linda Commons replaced Cecil Davis
as Superintendent of Camp Summit. Two weeks later,
Superintendent Commons held a pre-deprivation hearing
for Ronay related to Thode’s complaint. She concluded that
Ronay had violated DOC policy and, on October 26, issued
him a written reprimand in lieu of a three-day suspension.
4 No. 04-1130

In mid-September 2001, Brown finished her investigation
of Ms. Moser’s complaint against Ronay and reported that
the allegations were founded. However, based on informa-
tion Brown had learned during her investigation, she
advised the Director of DOC’s Affirmative Action Division
that
I am recommending that Ms. Rhonda Moser,
Affirmative Action Coordinator at Camp Summit be
relieved of the Affirmative Action duties. Information
provided revealed that Ms. Moser has not always be-
haved in a professional manner and one that speaks well
for an Affirmative Action Coordinator. She recently was
heard, and admitted to, using the “f” word in the
workplace. Superintendent Commons informed me she
is addressing this issue with Ms. Moser.
R.35, Defendant’s Ex.M at 1. In addition, Brown sent a
memorandum dated October 5, 2001, to Superintendent
Commons, which stated:
During a recent investigation at Camp Summit, it was
revealed that Rhonda Moser, Affirmative Action Coor-
dinator (Administrative Assistant) had neglected to
fulfill the responsibilities as facility AAC as outlined in
AA policy 04-03-108.
It was also learned Ms. Moser’s behavior in the work-
place has been questionable. It was reported and con-
firmed that she was aware of a sexually suggestive gift
that was brought into the facility, participated in some
sort of dance in the conference room and recently used
very vulgar language in the workplace.
For the reasons stated above, it is recommended
Ms. Moser be removed as AAC.
Id. at 2.
No. 04-1130 5

A few days later, on October 8, 2001, Ms. Moser wrote to
Superintendent Commons and offered an explanation for a
number of incidents related to Ms. Moser’s work perfor-
mance. Among other things, Ms. Moser’s letter admitted
that she had not told the truth during her investigation of
Thode’s sexual harassment allegations against Ronay. R.35,
Defendant’s Ex.P at 2. On October 22, Ms. Moser received
notice of a pre-deprivation hearing to address the following
incidents:
1. The use of profanity directed towards Chuck
Linebaugh on September 7, 2001 in which you stated,
“Get the F*** Out of Here, Get the F*** Out.”
2. The questioning of Mary Beth Jurgenson, a witness
in a pre-deprivation meeting, after she left the
Superintendent’s office on October 5, 2001.
3. The contacting of the personal physician of Lorri
Price and telling her doctor that Ms. Price has a
Dr. Jeckyll and Mr. Hyde personality and then ask-
ing the doctor to give Ms. Price “drugs or some
kind of counseling.”
4. Based on information obtained from Jayne Brown,
Northern Region Affirmative Action Coordinator.
Mrs. Brown is recommending that you be relieved
of the Affirmative Action duties at Camp Summit.
Mrs. Brown states, “Ms. Moser has not always be-
haved in a professional manner and one that speaks
well for an Affirmative Action coordinator.”
5. As you were leaving work on October 19, you asked
YSI Patrick Cleary, who was working in the Com-
mand Center, to come to your home for a drink after
his shift ended (10:45 p.m.) You and Mr. Cleary then
carried on a conversation regarding drinking beer
and hard liquor. This conversation took place in the
6 No. 04-1130

hall outside of the Command Post. Other staff and
the students could hear your conversation. In
addition, a parent was in the main entrance waiting
to pick-up their son for a home pass and they too
could hear your conversation.
R.35, Defendant’s Ex.T at 1. The notice explained that
Ms. Moser’s behavior constituted “conduct unbecoming
DOC staff,” in violation of DOC policy. Id. On October 29,
2001, after the pre-deprivation hearing, Superintendent
Commons issued a discipline to Ms. Moser, which pro-
vided:
Based on your own admission and statements from
Chuck Linebaugh, Ms. Mary Beth Jurgenson, Mr. Patrick
Cleary and the Northern District’s Affirmative Action
Coordinator’s recommendation that you be removed as
Affirmative Action Coordinator for Camp Summit, I
find your behavior to be a violation of policy.
....
The serious lack of professionalism exhibited by your
behavior and your removal as Affirmative Action
Coordinator will make it difficult for you to perform the
essential functions of your position as Personnel Direc-
tor and Administrative Assistant to the Superintendent.
Id. at 1-2. Effective the next day, Ms. Moser was removed as
affirmative action coordinator. She was issued a written
reprimand in lieu of a three-day suspension and was trans-
ferred to Westville for a new assignment.

B. District Court Proceedings
The district court granted the DOC’s motion for summary
judgment on all of Ms. Moser’s Title VII claims. In granting
summary judgment on the claim of sex discrimination, the
No. 04-1130 7

court determined that Ms. Moser had not established that
she was meeting the DOC’s legitimate job expectations or
that the incidents for which she was disciplined amounted
to discrimination.
With respect to Ms. Moser’s hostile work environment
claim, the district court took the view that the testimony of
third parties about Ronay’s conduct towards them had less
probative value than evidence of Ronay’s conduct involving
Ms. Moser. In addition, the district court determined that
Ronay’s conduct toward Ms. Moser was not sufficiently
severe or pervasive to create an objectively hostile work
environment.
Finally, the district court entered summary judgment on
the claim of retaliation. In reaching that decision, the court
determined that Ms. Moser’s transfer did not amount to a
material diminution in title, responsibilities or compensa-
tion that would qualify as an adverse employment action
under Title VII. Moreover, the district court decided that no
reasonable jury could infer from the record that Ms. Moser’s
report of sexual harassment was the cause of the disciplin-
ary action.

II
DISCUSSION
A. Standard of Review
We review a district court’s grant of a motion for summary
judgment de novo, and we view all facts and reasonable
inferences from the record in the light most favorable to
Ms. Moser, the non-moving party. Hall v. Bodine Elec. Co.,
276 F.3d 345, 352 (7th Cir. 2002). Summary judgment is
appropriate if “the pleadings, depositions, answers to inter-
rogatories, and admissions on file, together with the affida-
8 No. 04-1130

vits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

B. Sex Discrimination
Ms. Moser alleges that the DOC disciplined her unfairly
on the basis of her sex. Title VII makes it unlawful for an
employer “to fail or refuse to hire or to discharge any indi-
vidual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions or
privileges of employment, because of such individual’s . . .
sex . . . .” 42 U.S.C. § 2000e-2(a)(1). Both the district court
and the parties have proceeded under the familiar indirect
method of proving discrimination announced in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). The Title VII
plaintiff employing this method has the burden to prove, by
a preponderance of the evidence, a prima facie case of
intentional discrimination. Stockett v. Muncie Indiana Transit
Sys., 221 F.3d 997, 1000 (7th Cir. 2000). To make the
prima facie case, the plaintiff must establish that: (1) she
belongs to a protected class; (2) her performance met her
employer’s legitimate expectations; (3) she suffered an ad-
verse employment action; and (4) similarly situated others
not in her protected class received more favorable treatment.
Id.; Hildebrandt v. Illinois Dep’t. of Natural Res., 347 F.3d 1014,
1030 (7th Cir. 2003). If the plaintiff meets her burden, a
presumption of discrimination arises, and the employer
must articulate a legitimate and non-discriminatory reason
for the employment action. Stockett, 221 F.3d at 1001. Should
the employer meet its burden, the plaintiff must show by a
preponderance of the evidence that the employer’s prof-
No. 04-1130 9

fered reasons were merely a pretext for discrimination. Id.
The ultimate burden of persuasion remains at all times with
the plaintiff. Id.
In the present case, the parties’ dispute centers on whether
Ms. Moser has raised a genuine issue of material fact that
she was performing her job according to the DOC’s legit-
imate expectations. We agree with the district court that Ms.
Moser has not made this prima facie showing. As evidence
that she was performing her work in a satisfactory manner,
Ms. Moser points to her laudable twenty-year performance
record with the DOC before Superintendent Commons’
arrival at Camp Summit. However, critical to our inquiry is
Ms. Moser’s performance at the time of the employment
action. As this court has explained previously, “[a]lthough
in some circumstances, previous employment history may
be relevant and probative in assessing performance at the
time of [the employment action], its limited utility must also
be recognized. Certainly earlier evaluations cannot, by
themselves, demonstrate the adequacy of performance at
the crucial time when the employment action is taken.”
Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d
1106, 1113 (7th Cir. 1998).
With the relevant time frame in mind, we turn to
Ms. Moser’s additional contentions. She does not deny the
incidents that Superintendent Commons cited as the basis
for disciplinary action: using profanity; questioning a co-
worker about a confidential meeting; contacting another co-
worker’s physician; and talking about alcohol. Rather, Ms.
Moser characterizes the incidents as “absurdly minor” and
baseless. Appellant’s Br. at 20. She submits that other Camp
Summit employees commonly used profanity and discussed
drinking, that her former Superintendent had told her to
contact her co-worker’s physician, and that Superintendent
Commons had no basis for believing that Ms. Moser had
known the confidential nature of her co-worker’s meeting.
10 No. 04-1130

The record, however, does not support Ms. Moser’s claim
that her reassignment was not warranted. Ms. Moser ignores
the fact that Jayne Brown, the regional affirmative action
coordinator, recommended that Ms. Moser be removed as
the affirmative action coordinator at Camp Summit. Through
investigating Ms. Moser’s allegations against Ronay, Brown
had learned the following: that Ms. Moser “ha[d] not always
behaved in a professional manner and one that speaks well
for an Affirmative Action Coordinator”; that “Ms. Moser’s
behavior in the workplace has been questionable”; and that
Ms. Moser “had neglected to fulfill the responsibilities as
facility AAC.” R.35, Defendant’s Ex.M at 1-2. On this record,
a rational factfinder could not conclude that Ms. Moser was
meeting her employer’s legitimate expectations. Because
Ms. Moser has failed to establish an element of her prima
facie case of discrimination, the district court’s grant of
2
summary judgment was appropriate.

2
Moreover, even if Ms. Moser could make a prima facie case of
discrimination, her claim could not avoid summary judgment
because she has not presented sufficient evidence of pretext to
rebut the DOC’s non-discriminatory reasons for her transfer.
Ms. Moser submits that the incidents leading to her discipline
were too minor to have motivated the employment action. She
further argues that Superintendent Commons disciplined her for
minutiae but did not discipline others, such as Daniel Ronay for
his sexual harassment. Again, fatal to Ms. Moser’s assertion of
pretext is Brown’s conclusion that Ms. Moser’s conduct called
into question her ability to serve as an affirmative action co-
ordinator. Furthermore, even if Superintendent Commons had
underestimated Ms. Moser’s maturity and judgment to be trusted
with the duties of an affirmative action coordinator, that does not
demonstrate pretext for purposes of Title VII. See Hudson v.
Chicago Transit Auth., 375 F.3d 552, 562 (7th Cir. 2004) (stating
(continued...)
No. 04-1130 11

C. Hostile Work Environment
Ms. Moser also alleges that Ronay’s jokes and remarks
subjected her to a hostile work environment. “ ‘[A] plaintiff
may establish a violation of Title VII by proving that dis-
crimination based on sex has created a hostile or abusive
work environment.’ ” Cowan v. Prudential Ins. Co. of America,
141 F.3d 751, 755 (7th Cir. 1998) (quoting Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 66 (1986)). To establish the prima
facie case of hostile environment sexual harassment, a
plaintiff must show that: (1) she was subjected to unwel-
come sexual harassment; (2) the harassment was based on
her sex; (3) the harassment unreasonably interfered with her
work performance by creating an intimidating, hostile or
offensive working environment that seriously affected her
psychological well-being; and (4) there is a basis for em-
ployer liability. Hall, 276 F.3d at 354-55.
In the present case, the parties’ dispute focuses on the
third element. To evaluate whether a plaintiff’s work envir-
onment was hostile, we examine all of the circumstances,
such as the “ ‘frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.’ ” Saxton
v. American Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir. 1993)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
We evaluate those factors from both an objective and a
subjective viewpoint:

2
(...continued)
that, even if employer had made the wrong decision, the plaintiff
would need to show that the stated reasons were lies covering a
discriminatory motive).
12 No. 04-1130

“Conduct that is not severe or pervasive enough to
create an objectively hostile or abusive work environ-
ment—an environment that a reasonable person would
find hostile or abusive—is beyond Title VII’s purview.
Likewise, if the victim does not subjectively perceive the
environment to be abusive, the conduct has not actually
altered the conditions of the victim’s employment, and
there is not a Title VII violation.”
Id. (quoting Harris, 510 U.S. at 21-22).
Ms. Moser alleges that Ronay’s remarks were part of his
daily, non-ceasing quest to degrade women at Camp Summit.
Appellant’s Br. at 6-7, 29. Ms. Moser has put forward the
following examples as evidence of Ronay’s harassment: he
spoke down to her and other female employees; he made a
reference to her “tits”; he told several new male employees
to watch out because Ms. Moser likes good-looking men; he
commented on female job applicants’ physical appearance;
he asked Ms. Moser if she had gotten a new set of legs; he
used profanity in his office, which Ms. Moser overheard; he
told a joke about a boy’s anatomy; he made an innuendo
about his penis size when a dimension was mentioned by a
female co-worker; he told others, outside of Ms. Moser’s
presence, that a female co-worker was running a whore-
house; and he said that a female co-worker “just needed a
good f***.” R.35, Defendant’s Ex.A at 3, ¶11; R.35, Ex.C at
182-216. Furthermore, Ms. Moser claims that Ronay’s
behavior interfered with her work performance because his
comments to new male employees made dealing with those
employees more difficult and his comments about female job
applicants made the hiring process humiliating. Appellant’s
Br. at 8-9, 29. Finally, she claims that Ronay’s comments
kept her “on edge and stressed” and made her feel demoral-
ized. Id. at 8.
No. 04-1130 13

Even assuming that Ms. Moser perceived her work envi-
3
ronment as hostile or abusive due to Ronay’s behavior,
her claim cannot withstand summary judgment because, on
this record, a reasonable person likely would not have
found the Camp Summit work environment to be hostile
within the meaning of Title VII. Ms. Moser contends that the
district court failed to place enough weight on the testimony
of other DOC employees about comments Ronay had made
to them—remarks that did not involve Ms. Moser and that
Ms. Moser did not hear. However, our court has considered
such “second-hand” harassment, although relevant, to be
less objectionable than harassment directed at the plaintiff.
See, e.g., McKenzie v. Milwaukee County, 381 F.3d 619, 624 (7th
Cir. 2004). Certainly, Ronay’s behavior was inappropriate,
and it likely impacted adversely on the work environment
at Camp Summit and would have made a reasonable
employee uncomfortable. Nonetheless, the handful of
comments of a sexual nature that Ronay made to Ms. Moser,
apparently in the context of headless jokes, as opposed to
serious or threatening comments, simply does not rise to the
level of harassment our court has held actionable. See, e.g.,
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (noting
that Title VII is not a code of general civility and simple
teasing, offhand comments and isolated incidents that are
not extremely serious do not amount to actionable harass-
ment); Savino v. C.P. Hall Co., 199 F.3d 925, 933 (7th Cir.
1999) (stating that “sporadic use of abusive language,
gender-related jokes, and occasional teasing are fairly

3
Ms. Moser’s own testimony suggests that she did not find her
work environment at Camp Summit to be hostile. For instance,
she stated: “I probably would have continued [to work at Camp
Summit until I retired] because I really liked it there. I enjoy a
small facility . . . . I enjoyed the personnel, and all aspects of what
I was doing there . . . .” R.35, Defendant’s Ex.C at 46.
14 No. 04-1130

commonplace in some employment settings and do not
amount to actionable harassment” (internal quotation marks
and citation omitted)); Baskerville v. Culligan Int’l Co., 50 F.3d
428, 431 (7th Cir. 1995) (finding no actionable harassment
when the employer did not threaten the plaintiff, did not
touch her, did not expose himself or show dirty pictures, and
did not invite her explicitly or impliedly to have sex with
him or to go out on a date with him). Accordingly, summary
judgment was appropriate on Ms. Moser’s hostile work
environment claim.

D. Retaliation Claim
Ms. Moser contends that she was reassigned to Westville
in retaliation for her complaints against Ronay. Title VII
prohibits employers from punishing employees for com-
plaining about discrimination or other practices that violate
Title VII. 42 U.S.C. § 2000e-3(a). A plaintiff may prove
retaliation by using either the direct method or the indirect,
burden-shifting method. Sitar v. Indiana Dep’t of Transp., 344
F.3d 720, 728 (7th Cir. 2003). The direct method requires the
plaintiff to show that: (1) she engaged in statutorily pro-
tected activity; (2) she suffered an adverse employment
action taken by the employer; and (3) a causal connection
between the two. Id. Under the alternative indirect method,
the plaintiff must establish a prima facie case of retaliation
by showing that: (1) she engaged in a statutorily protected
activity; (2) she met the employer’s legitimate expectations;
(3) she suffered an adverse employment action; and (4) she
was treated less favorably than similarly situated employees
4
who did not engage in statutorily protected activity. Id. If

4
This court has clarified that, at the summary judgment stage,
a plaintiff seeking to prove retaliation under the indirect method
(continued...)
No. 04-1130 15

the plaintiff establishes the prima facie case, the burden
shifts to the employer to present evidence of a non-discrimi-
natory reason for its employment action. Id. If the employer
meets its burden, the burden shifts back to the plaintiff to
demonstrate that the employer’s reason is pretextual. Id. Ms.
Moser has not presented sufficient evidence under either of
the two recognized approaches.
5
Beginning with the second element of the direct case, an
adverse employment action “might be indicated by a termi-
nation of employment, a demotion evidenced by a decrease
in wage or salary, a less distinguished title, a material loss
of benefits, significantly diminished material responsibilities,
or other indices that might be unique to a particular situ-
ation.” Crady v. Liberty Nat’l Bank & Trust Co. of Indiana, 993
F.2d 132, 136 (7th Cir. 1993). Although Ms. Moser’s transfer
did not change her title, salary or benefits, she submits that
the discipline amounted to an adverse employment action
because her duties have diminished in importance, chal-
lenge and variety. Ms. Moser complains that she was placed
in the lowest possible clerical job. She further claims that she

4
(...continued)
need not show even an attenuated causal link between the pro-
tected activity and the adverse employment action. Mannie v.
Potter, 394 F.3d 977, 984 (7th Cir. 2005) (citing Stone v. City of
Indianapolis Pub. Util. Div., 281 F.3d 640, 643-44 (7th Cir. 2002)).
5
Relying on Durkin v. City of Chicago, 341 F.3d 606 (7th Cir. 2003),
the DOC claims that Ms. Moser did not engage in statutorily
protected conduct because she did not complain about Ronay’s
sexual harassment through the DOC’s formal complaint process.
Appellee’s Br. at 29. The DOC has waived this argument by not
raising it before the district court. See Williams v. REP Corp., 302
F.3d 660, 666 (7th Cir. 2002) (a party waives any argument that it
did not make to the district court).
16 No. 04-1130

no longer was able to interact with the DOC’s central office
and other outside entities, to help employees with their
insurance and payroll problems or to work with the stu-
dents at Camp Summit. However, any lateral job transfer by
definition alters an employee’s responsibilities and work
conditions, and not every change that makes an employee
unhappy is actionable. O’Neal v. City of Chicago, 392 F.3d
909, 913 (7th Cir. 2004). A subjective preference for the
former position, without more, does not demonstrate an
adverse employment action. Ms. Moser offers no evidence
to support her assertion that her clerical duties at Westville
are a material reduction in responsibility from her duties at
Camp Summit.
Ms. Moser continues, however, by arguing that the disci-
pline amounted to an adverse employment action because
it ruined her reputation and diminished her chances for
transfer or promotion. Appellant’s Br. at 35. The district court
gave little weight to this argument because Ms. Moser’s
discipline had been removed from her file. Ms. Moser points
us to the affidavit of Shirl Meyer, part of DOC’s personnel
staff, who stated that “[a] DOC employee is not permitted
to transfer for 3 years after a discipline. The reality within
the DOC is that a discipline of any kind damages the
reputation of an employee, and that employee’s career
opportunities within the DOC greatly diminish.” R.35, Tab
L at ¶ 7. These circumstances, viewed most favorably to Ms.
Moser, may suggest a materially adverse employment
action. Even so, we need not decide the issue here, because
Ms. Moser has failed to prove the third element of her prima
facie case, causation.
To prove this element, Ms. Moser must show that the
DOC would not have taken the adverse employment action
“but for” her protected activity. Wells v. Unisource Worldwide,
Inc., 289 F.3d 1001, 1008 (7th Cir. 2002). Ms. Moser maintains
that the short period of time (about one month) between
No. 04-1130 17

Superintendent Commons’ arrival at Camp Summit and the
initiation of the disciplinary process requires an inference of
retaliation. However, suspicious timing alone rarely is
sufficient to create a triable issue. See Stone v. City of India-
napolis Pub. Util. Div., 281 F.3d 640, 644 (7th Cir. 2002). Ms.
Moser further suggests that Ronay was a favored employee
who “squire[d]” and “manipulated” Superintendent
Commons into retaliating against Ms. Moser. Appellant’s
Br. at 5-6, 37-38. As the district court recognized, however,
at the summary judgment stage courts are not required “ ‘to
draw every conceivable inference from the record, . . . only
reasonable ones.’ ” R.43 at 21-22 (quoting Gleason v. Mesirow
Fin. Inc., 118 F.3d 1134, 1139 (7th Cir. 1997)). Ms. Moser’s
speculation that Ronay manipulated Superintendent
Commons raises no more than a metaphysical doubt as to
whether the DOC would have disciplined Ms. Moser had
she not complained about Ronay. Indeed, as we noted
earlier in this opinion, numerous incidents brought
Ms. Moser’s professionalism and ability to serve as an
affirmative action coordinator into question. Therefore, this
record does not suggest a causal link between Ms. Moser’s
reassignment and her protected expression.
Ms. Moser’s retaliation claim also cannot prevail under
the indirect method. Again, the record does not support that
Ms. Moser was meeting the DOC’s legitimate expectations.
In addition, Ms. Moser has not attempted to show that the
DOC treated more favorably a similarly situated employee
who did not engage in protected activity. For all of these
reasons, summary judgment properly was granted on the
retaliation claim.

Conclusion
Accordingly, we affirm the judgment of the district court.
AFFIRMED
18 No. 04-1130

A true Copy:
Teste:

_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—5-5-05