In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1962
LEROY S. POULLARD,
Plaintiff‐Appellant,
v.
ROBERT A. MCDONALD, Secretary,
United States Department of Veterans Affairs,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 7497 — Joan H. Lefkow, Judge.
____________________
ARGUED DECEMBER 3, 2015 — DECIDED JULY 21, 2016
____________________
Before WOOD, Chief Judge, and MANION and HAMILTON,
Circuit Judges.
HAMILTON, Circuit Judge. Since 2004, plaintiff Leroy
Poullard has worked at the North Chicago Veterans Affairs
Medical Center as a training specialist in the Education De‐
partment. He received a promotion to the GS‐11 pay grade in
2006, but since then, he has received neither a permanent pro‐
motion nor a raise in his pay grade. He brought this suit
2 No. 15‐1962
against the Secretary of the U.S. Department of Veterans Af‐
fairs alleging that this refusal to promote him or increase his
salary constituted discrimination based on sex and race
(Poullard is African‐American). He also says that he was sub‐
jected to unlawful retaliation and a hostile work environment
based on the same lack of pay and recognition, as well as a
number of other incidents.
The district court granted the Secretary’s motion for sum‐
mary judgment, concluding that many of Poullard’s claims
were time‐barred based on his failure to timely exhaust cer‐
tain administrative remedies. On the timely claims, the court
held that Poullard had not suffered an adverse employment
action and that a reasonable jury could not find that the al‐
leged harassment was sufficiently severe or pervasive to sup‐
port a hostile work environment claim. We affirm. Based on
the evidence Poullard has presented, we assume that he may
not have been managed well or fairly. But even when viewed
through a summary judgment lens, that evidence does not
support a claim for unlawful discrimination, retaliation, or
harassment.
I. Factual and Procedural Background
A. Facts Relevant to Summary Judgment
We review the facts that follow in the light most favorable
to Poullard, resolving disputes and drawing all reasonable in‐
ferences in his favor. Liu v. Cook County, 817 F.3d 307, 309 (7th
Cir. 2016), citing Coleman v. Donahoe, 667 F.3d 835, 842 (7th Cir.
2012).
In 2004, plaintiff Leroy Poullard began working as a train‐
ing specialist in the Education Department at what is now
called the Captain James A. Lovell Federal Health Care Center
No. 15‐1962 3
in 2004. In 2006, he received a promotion to grade GS‐11. By
all accounts, he performed his job well, taking on a number of
managerial tasks he says were beyond his grade level and re‐
ceiving very positive evaluations. In October 2006, his perfor‐
mance evaluation called him a “one‐person Education De‐
partment.” He received a number of cash awards in 2006 and
2007 to reward him for the extra work, but he did not receive
a promotion. Believing that this was due to discrimination,
Poullard contacted the Office of Resolution Management in
May 2007 and filed a formal complaint against his then‐super‐
visor, Marianne Semrad, alleging race and sex discrimination
as well as disability discrimination and retaliation. After he
filed the complaint, he received a temporary promotion to GS‐
12, but when it expired, he returned to the GS‐11 level.
We pause here to discuss the administrative process appli‐
cable in this case, which is important to the timeliness of
plaintiff’s claims. Poullard is a federal employee. As a first
step in resolving his claims of unlawful discrimination, he
was required to try to resolve the matter informally by con‐
sulting an Equal Employment Opportunity counselor. 29
C.F.R. § 1614.105(a). The regulations require an employee to
initiate contact with the counselor within 45 days of the alleg‐
edly discriminatory matter. § 1614.105(a)(1). If informal coun‐
seling fails, the employee must then file a formal complaint.
See § 1614.106. Then, if the employee wishes to file a civil ac‐
tion, he may do so either within 90 days of receiving notice of
the agency decision or, if he chooses to appeal to the Equal
Employment Opportunity Commission, within 90 days of the
EEOC’s resolution of his appeal. 42 U.S.C. § 2000e‐16(c). With
respect to the 2007 complaint of discrimination, Poullard both
4 No. 15‐1962
contacted a counselor and filed a timely formal complaint. Af‐
ter a final agency decision against him, he did not file an ac‐
tion in federal court.
Meanwhile, in October 2007, a number of staffing changes
took place in the Education Department. Semrad left her po‐
sition as associate director for facility support, and Mary Ann
Cardinali took over that role. In November 2007, Richard Holt
became the acting chief of the Education Department, and in
July 2008, Dr. Norma Mailand replaced Holt and became the
assistant department head for education and training, a GS‐
13 position. These transitions left Mailand as Poullard’s direct
supervisor and Cardinali as his second‐line supervisor.
Poullard did not apply for the supervisory position that
Mailand eventually received. He did not satisfy the time‐in‐
grade prerequisite of one year in service at the GS‐12 grade.
According to Poullard, however, after Mailand’s appointment
he continued to perform the extra managerial duties for
which he had previously been responsible, including prepar‐
ing the annual budget and drafting the department’s strategic
plans. Despite the extra work, his classification and compen‐
sation remained at the GS‐11 level.
Poullard repeatedly questioned the department’s refusal
to compensate him for the duties that were beyond his grade
classification, though it is undisputed that he never actually
applied for another promotion. On February 26, 2010, and
again on March 24, 2010, Poullard sent Mailand e‐mails item‐
izing his assigned tasks that he believed were above his grade
level. Mailand directed a VA classification specialist to evalu‐
ate those tasks. The classification specialist concluded that the
tasks were appropriate for a GS‐11 employee, and Poullard
No. 15‐1962 5
did not receive a reclassification or increased pay. Poullard
does not claim that this decision was discriminatory.1
While the dispute about Poullard’s classification and pay
was ongoing, other incidents relevant to his claims occurred.
In October 2008, Cardinali held a meeting of department em‐
ployees. At one point, she ordered that the tape recorder in
the room be turned off and said, “I know people in Washing‐
ton, D.C. and if you file a complaint, they are going to send it
back to me and I’m going to deal with you.” She also said that
management intended to “get the monkeys off their back[s]”
and threw a toy monkey at Poullard, apparently in reference
to a Harvard Business Review article entitled “Management
Time: Who’s Got the Monkey?” In a separate incident, Mai‐
land referred to Poullard as a “sugar daddy.” On a different
occasion, after viewing an older photograph of Poullard taken
when he had had an afro hairstyle, Mailand said that he was
a “better person” than he had been before.
On March 5, 2010, Poullard contacted the Office of Reso‐
lution Management and reported that he had been forced to
perform managerial duties and responsibilities beyond his
GS‐11 grade level. On April 17, he filed a timely formal com‐
plaint. He claimed that Mailand had discriminated against
him by ensuring he had more assignments than other training
1 In a desk audit, an employee’s duties and responsibilities are assessed
“to determine whether, ‘due to the accretion of additional duties and re‐
sponsibilities,’ his position should be ‘reclassified at a higher grade.’”
Poullard v. Shinseki, No. 12 C 7497, 2015 WL 1428105, at *2 (N.D. Ill. Mar.
26, 2015). It is not clear why the VA classification specialist’s assessment
of Poullard’s duties does not qualify as a desk audit, but the parties agree
that Poullard’s 2010 request for a desk audit was denied.
6 No. 15‐1962
specialists and forcing him to perform above‐grade tasks
without compensation or recognition. He also alleged he had
been subjected to a hostile work environment and retaliation,
pointing to the following incidents in addition to the uncom‐
pensated extra assignments and above‐grade tasks:
The meeting in which Cardinali referred to employ‐
ees as monkeys;
The incident in which Mailand called Poullard a
sugar daddy;
A letter of admonishment he received on January
27, 2009, for failing to follow the chain of command
when he asked to meet with Holt about being re‐
quired to perform Mailand’s duties;
Denial of overtime compensation for extra hours in
October 2009;
The incident in which Mailand said that Poullard
was a “better person” than he had been;
A performance review for fiscal year 2009, in which
Poullard received a “Fully Successful” rating (he
believed he should have received a higher rating
based on the extra duties he performed);
An incident on February 26, 2010 in which, after
Poullard requested a meeting with management to
discuss alleged discrimination, Mailand began to
“harass” him by “demanding documents and set‐
ting strict work deadlines”;
Mailand’s refusal to recognize additional hours that
Poullard worked on a monthly basis from October
2009 onward; and
No. 15‐1962 7
Mailand’s repeated threats of disciplinary action in
response to Poullard’s questions about performing
her duties.
In July 2012, the Office of Employment Discrimination Com‐
plaint Adjudication for the VA found that Poullard had failed
to prove discrimination. Poullard did not appeal to the EEOC
but instead filed this civil action in district court on September
19, 2012, alleging race and sex discrimination, hostile work
environment, and retaliation.
B. District Court Proceedings
The Secretary moved for summary judgment, and the dis‐
trict court granted the motion. Poullard v. Shinseki, No. 12 C
7497, 2015 WL 1428105 (N.D. Ill. Mar. 26, 2015). Judge Lefkow
held that all claims arising from events addressed in
Poullard’s first formal complaint were time‐barred by his fail‐
ure to file a civil action after receiving a final decision from
the EEOC on March 26, 2010. Id. at *5. She also held that all
alleged acts of discrimination that occurred before January 19,
2010 (45 days before Poullard contacted a counselor on March
5, 2010) were time‐barred. Id.
Poullard argued that at least some of his claims were ren‐
dered timely by the Lilly Ledbetter Fair Pay Act of 2009,
which provides that an “unlawful employment practice” oc‐
curs each time a person is paid pursuant to a discriminatory
compensation decision or practice. 42 U.S.C. § 2000e‐
5(e)(3)(A). It further allows an aggrieved person to recover
back pay for up to two years preceding a charge’s filing
“where the unlawful employment practices that have oc‐
curred during the charge filing period are similar or related
8 No. 15‐1962
to unlawful employment practices with regard to discrimina‐
tion in compensation that occurred outside the time for filing
a charge.” Id. at § 2000e‐5(e)(3)(B). Poullard argued he could
assert a discrimination claim based on disparate pay extend‐
ing back two years before he filed the charge.
The district court rejected Poullard’s attempt to frame his
claim as a challenge to a discriminatory compensation prac‐
tice, holding that the “gravamen” of the claim was failure to
reclassify him at a higher grade level—in essence, for failure
to promote. Poullard, 2015 WL 1428105, at *6. Noting that sev‐
eral courts have held that a decision regarding promotion
does not qualify as a “compensation decision,” the court
found that the Fair Pay Act did not save his core claims. Id. at
*6–7.
This left Poullard with significantly fewer viable claims.
His core disparate treatment claims were limited to only acts
after the cutoff date of January 19, 2010. The district court de‐
termined that none of the events after January 19 constituted
an adverse employment action and granted summary judg‐
ment to the Secretary on that basis. Id. at *9. The court likewise
held that Poullard had not identified an adverse employment
action upon which to base his retaliation claims. Id. at *9–10.
Finally, the district court found that the Secretary was entitled
to judgment as a matter of law on the hostile work environ‐
ment claim, holding that Poullard’s evidence did not show
that his work environment was permeated with harassment
“so severe and [sic, should be ‘or’] pervasive” as to alter his
conditions of employment. Id. at *11.
No. 15‐1962 9
II. Analysis
We review de novo the grant of summary judgment to the
Secretary, resolving all factual disputes and drawing all rea‐
sonable inferences in Poullard’s favor, as mentioned above.
Liu, 817 F.3d at 309. Summary judgment is appropriate when
there is no genuine dispute of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). We first address Poullard’s core disparate treatment
claims of race discrimination and then turn to his retaliation
and hostile work environment claims.2
A. Disparate Treatment
As the district court held, many of Poullard’s claims of dis‐
parate treatment fail because they arose outside the applica‐
ble limitations periods. On appeal, Poullard does not chal‐
lenge the district court’s conclusion that any disparate treat‐
ment claims based on events occurring before January 19,
2010, 45 days before he contacted a counselor, are time‐
barred. See Lapka v. Chertoff, 517 F.3d 974, 981 (7th Cir. 2008)
2 Poullard has failed to preserve his claims for sex discrimination on ap‐
peal. He did not separately address the sex discrimination theory or point
to any evidence suggesting animus on the basis of sex, and as the govern‐
ment points out, Poullard in fact testified that he did not believe the per‐
ceived discrimination was due to his sex. Poullard’s briefs refer to
“race/sex” discrimination in tandem with one another, suggesting he did
not intend to give up the theory, but that is not enough to preserve his
claims on appeal. Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012)
(arguments may be waived on appeal “if they are underdeveloped, con‐
clusory, or unsupported by law”). In any event, his sex discrimination
claims are no stronger than his claims for race discrimination, which fail
for reasons explained below.
10 No. 15‐1962
(because counseling requirement serves an important func‐
tion by giving agencies a chance to resolve a complaint infor‐
mally, “we bar claims if the forty‐five day requirement is not
satisfied and there is no occasion for equitable tolling”). Nor
does he challenge the conclusion that his failure to bring suit
within 90 days of the resolution of his first administrative
complaint bars any claims based on those events. See 42
U.S.C. § 2000e‐16(c).
Poullard seeks to save his claim that he was forced to per‐
form work above his grade level without commensurate pay
and recognition. As noted above, the district court character‐
ized that claim as a failure‐to‐promote claim and rejected it
because the record contains no evidence that Poullard applied
for a promotion after the cutoff date of January 19, 2010, or
that a promotion for which he had previously applied was de‐
nied after that date. Poullard argues that this was error and
that the claim actually challenges a discriminatory compensa‐
tion decision.
How to characterize Poullard’s claim has practical conse‐
quences. We need not repeat the well‐known history of the
Lilly Ledbetter Fair Pay Act of 2009, Pub. L. 111‐2, 123 Stat. 5.
See Groesch v. City of Springfield, 635 F.3d 1020, 1024 (7th Cir.
2011). Under the Fair Pay Act, an unlawful employment prac‐
tice occurs not only when a discriminatory compensation de‐
cision or other practice is first adopted or when an individual
first becomes subject to that decision or practice, but also
“when an individual is affected by application of a discrimina‐
tory compensation decision or other practice, including each
time wages, benefits, or other compensation is paid, resulting
in whole or in part from such a decision or other practice.” 42
U.S.C. § 2000e‐5(e)(3)(A) (emphasis added). If the Fair Pay Act
No. 15‐1962 11
applies to Poullard’s claim, it is timely if at least one unlawful
employment practice—including the receipt of a single
paycheck—occurred during the 45 days preceding his consul‐
tation with the counselor. Furthermore, under 42 U.S.C.
§ 2000e‐5(e)(3)(B), Poullard could recover up to two years of
back pay so long as the unlawful practice occurring during
the charge filing period is “similar or related to” the unlawful
compensation practices that occurred outside that period.
This is a new question for us. Other circuits have held that
what qualifies as a “discriminatory compensation decision or
other practice” within the meaning of the Fair Pay Act is nec‐
essarily limited. E.g., Daniels v. United Parcel Service, Inc., 701
F.3d 620, 630 (10th Cir. 2012) (Fair Pay Act “did not create a
‘limitations revolution for any claim somehow touching on
pay’”), quoting Almond v. Unified School District No. 501, 665
F.3d 1174, 1182 (10th Cir. 2011); Noel v. Boeing Co., 622 F.3d 266,
275 (3d Cir. 2010) (“We recognize that many employment‐re‐
lated decisions, not simply pay‐setting decisions, ultimately
have some effect on compensation. But to include these myr‐
iad employment decisions within the ‘other practice’ lan‐
guage of the [Fair Pay Act] would weaken Title VII’s adminis‐
trative exhaustion requirement.”); Schuler v. Pricewaterhouse‐
Coopers, LLP, 595 F.3d 370, 375 (D.C. Cir. 2010) (background of
the Fair Pay Act “strongly suggests the statute is directed at
the specific type of discrimination involved in [Ledbetter v.
Goodyear Tire & Rubber Co., 550 U.S. 618 (2007)] and not to
other unspecified types of discrimination in employment”).
More specifically, cases like Daniels, Noel, and Schuler tie the
effects of the Fair Pay Act to a very specific type of claim: that
the employer is “paying different wages or providing differ‐
ent benefits to similarly situated employees.” Daniels, 701 F.3d
12 No. 15‐1962
at 630–31, quoting Schuler, 595 F.3d at 374; see also Noel, 622
F.3d at 273–74.
Poullard agrees that a pure failure‐to‐promote claim
would not fall into the ambit of the Fair Pay Act. He also con‐
cedes that he did not apply for a promotion after January 19,
2010, so if his claim is for failure to promote, it is, as the district
court held, untimely. See Hill v. Potter, 625 F.3d 998, 1003 (7th
Cir. 2010) (failure to promote can be adverse action, “but the
plaintiff must first show that she properly applied for the po‐
sition”). We must decide whether Poullard’s claim is in fact a
disparate‐pay claim, as he contends.
Citing Almond, Poullard argues that the key to a successful
claim for pay disparity “is a showing that the employer dis‐
criminatorily paid the employee too little for the position he
or she occupies.” 665 F.3d at 1181. That, Poullard argues, has
always been his complaint: Mailand was paid at the GS‐13
level, while he was paid at the GS‐11 level for doing Mailand’s
managerial work. Poullard points to various places in his EEO
complaint alleging that he was forced to perform tasks unre‐
lated to his training specialist position “without proper com‐
pensation,” “without compensation/recognition,” and so on.
His complaint in the district court also alleges that the depart‐
ment’s “failure to fairly compensate plaintiff for the actual
work duties he performed” constituted a continuing violation
of Title VII, and his memorandum in opposition to summary
judgment characterized his claim as one for disparate pay, at
least in part.
On the other hand, some of Poullard’s allegations point to
a failure‐to‐promote claim instead. He alleged in his com‐
plaint that similarly situated employees were “routinely
No. 15‐1962 13
granted desk audits, competitive promotion and advance‐
ment when compelled to perform duties and responsibilities
beyond their grade level.” And in the summary judgment
briefing, he contended he was entitled not only to back pay as
a remedy but also “to permanent placement as a GS‐13 retro‐
active to 2008,” citing a failure‐to‐promote case from the
Fourth Circuit in support.
We are inclined to give Poullard the benefit of the doubt
on this question. As the plaintiff, he was free to frame his com‐
plaint as he chose, and though he could have been clearer, we
see no reason he could not have at least tried to bring a pay‐
disparity claim instead of, or in addition to, a failure‐to‐pro‐
mote claim. The problem is that even if we treat this as a pay‐
disparity case and thus give Poullard the benefit of the Fair
Pay Act’s extended limitations period, he has not presented
enough evidence to survive summary judgment.
Whether a plaintiff uses the direct, indirect, or “convinc‐
ing mosaic” methods of proof, the fundamental question at
the summary judgment stage is simply whether a reasonable
jury could find prohibited discrimination. See Bass v. Joliet
Public School District No. 86, 746 F.3d 835, 840 (7th Cir. 2014).
To meet his burden, Poullard relies on the so‐called indirect
method of proof adapted from McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under that method, he must first
offer evidence of a prima facie case of disparate treatment,
which requires evidence that: (1) he was a member of a pro‐
tected class; (2) he was meeting his employer’s legitimate ex‐
pectations; (3) he suffered an adverse employment action (i.e.,
unequal pay); and (4) the employer treated a similarly situ‐
ated person outside the protected class more favorably. See
Cullen v. Indiana University Board of Trustees, 338 F.3d 693, 703–
14 No. 15‐1962
04 (7th Cir. 2003). In the disparate‐pay context, this inquiry
boils down to a showing of equal work for unequal pay, with
the protected class as the distinguishing factor. E.g., Daniels,
701 F.3d at 630–31; Schuler, 595 F.3d at 374.
Poullard’s case falters at step four of the prima facie case,
identifying a similarly situated employee who was treated
better. In the district court, Poullard argued that he had iden‐
tified two similarly situated training specialists who were
paid the same as he was, at the GS‐11 level, but were not as‐
signed extra managerial tasks—in essence, an argument of
equal pay for unequal work, rather than unequal pay for
equal work. He has not renewed this argument on appeal. In‐
stead, he argues for the first time that Mailand, his direct su‐
pervisor from 2008 onward, is an appropriate comparator for
his prima facie case.
It is well established that arguments not presented to the
district court are waived on appeal. Puffer v. Allstate Ins. Co.,
675 F.3d 709, 718 (7th Cir. 2012). Poullard did not preserve the
argument that Mailand was an appropriate comparator
simply because his district court brief mentioned her. He did
not identify her as a comparator or argue that she was simi‐
larly situated. See Fleishman v. Continental Casualty Co., 698
F.3d 598, 608 (7th Cir. 2012) (the “waiver doctrine charges liti‐
gants with raising the arguments they present on appeal in
the district court, not just the facts on which their appellate
arguments will rely”).
Even if Poullard had previously identified Mailand as a
potential comparator, the argument fails on the merits. The
similarly‐situated inquiry is a flexible one, but we frequently
consider whether the employees in question had the same job
description, were subject to the same standards, had the same
No. 15‐1962 15
supervisor, and had comparable experience, education, and
other qualifications. Boumehdi v. Plastag Holdings, LLC, 489
F.3d 781, 791 (7th Cir. 2007), citing Bio v. Federal Express Corp.,
424 F.3d 593, 597 (7th Cir. 2005). On summary judgment, we
must accept as true Poullard’s evidence that he performed a
number of managerial duties that ought to have been done by
Mailand, but that fact is not enough to make Poullard and
Mailand sufficiently comparable “in all material respects.”
Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.
2002). Mailand was Poullard’s supervisor, for one thing. This
fact alone makes it difficult to conclude that two employees
are similarly situated. Id.; see also Cullen, 338 F.3d at 700 (dif‐
ference in number of supervisees was factor showing posi‐
tions were dissimilar). On this record, there is also no dispute
that Poullard did not satisfy the time‐in‐grade requirement—
a year at the GS‐12 level—for the position Mailand held. This
difference in experience further undermines Poullard’s (late)
attempt to use Mailand as a comparator. The evidence that
Mailand delegated many managerial duties to Poullard is not
enough to render her comparable to him in all material re‐
spects, at least not given the rest of the record in this case.
Poullard’s claim for disparate pay fails on this basis.
Poullard does not seek to revive any other disparate treat‐
ment claims on appeal, and we agree that, due primarily to
the timing problems, no other such claims appear viable. A
successful disparate treatment claim requires some materially
adverse employment action. Nichols v. Southern Illinois Univer‐
sity–Edwardsville, 510 F.3d 772, 779 (7th Cir. 2007). Most of the
arguably adverse events Poullard identifies occurred outside
the 45‐day window that preceded his contact with the coun‐
selor. Poullard was refused a desk audit in February and
March 2010, but he does not argue that those refusals were
16 No. 15‐1962
discriminatory, or that the denial of a desk audit alone (as op‐
posed to the denial of the accretion‐of‐duties promotion that
a successful desk audit might yield) amounted to a materially
adverse employment action. In fact, Poullard stated explicitly
in his opening brief that he “does not allege the Agency dis‐
criminated against him by denying him an ‘accretion‐of‐du‐
ties’ promotion.” The district court correctly granted the Sec‐
retary summary judgment on Poullard’s disparate treatment
claims.
B. Retaliation
Poullard also contends that his employer retaliated against
him for trying to exercise his rights under Title VII. See 42
U.S.C. § 2000e‐3(a). As with disparate‐treatment claims, a
plaintiff may prove a retaliation claim through either the di‐
rect or indirect methods of proof, though in recent years we
have questioned the value of the formal distinction between
those methods. See Castro v. DeVry University, Inc., 786 F.3d
559, 564 (7th Cir. 2015) (collecting cases). Under the direct
method of proof, Poullard must show that: (1) he engaged in
protected activity, (2) he suffered an adverse employment ac‐
tion, and (3) there was a causal connection between the two.
Id. Under the indirect method, he must first show two of the
same elements required by the direct method: protected ac‐
tivity and an adverse employment action. Silverman v. Board
of Education, 637 F.3d 729, 742 (7th Cir. 2011). To complete his
prima facie case and move on to the issue of pretext, he would
also need to offer evidence that he met the department’s legit‐
imate expectations and that he was treated less favorably than
similarly situated employees who did not engage in protected
activity. Id. Under either method, the core question is the
No. 15‐1962 17
same: “could a reasonable trier of fact infer retaliation?” Cas‐
tro, 786 F.3d at 564.
Poullard engaged in protected activity when he filed his
2007 EEO complaint. The Secretary argues that Poullard has
not offered evidence of a materially adverse action. In the re‐
taliation context, the challenged adverse action need not be
one that affects the terms and conditions of employment, but
it “must be one that a reasonable employee would find to be
materially adverse such that the employee would be dis‐
suaded from engaging in the protected activity.” Roney v. Illi‐
nois Dep’t of Transportation, 474 F.3d 455, 461 (7th Cir. 2007),
citing Burlington Northern & Santa Fe Railway Co. v. White, 548
U.S. 53, 62–65, 68 (2006).
Poullard contends that several events qualify as adverse
actions under this standard: (1) Cardinali’s threatening state‐
ment during the October 2008 staff meeting; (2) Mailand’s
threat of disciplinary action when he continued to question
her about performing her duties; (3) a letter of admonishment
in 2009 when he complained of being forced to perform Mai‐
land’s managerial duties; (4) racially offensive conduct by
Mailand and Cardinali; and (5) Poullard’s continued perfor‐
mance of Mailand’s duties without proper compensation. We
address these points in turn.
First, Cardinali’s and Mailand’s threats of unspecified dis‐
ciplinary action do not constitute adverse actions, at least not
in this context. “Federal law protects an employee only from
retaliation that produces an injury,” Stephens v. Erickson, 569
F.3d 779, 790 (7th Cir. 2009), and by themselves, these threats
did not. They had no effect on Poullard’s compensation or ca‐
reer prospects. While we do not doubt that the possibility of
discipline can be stressful, we have previously held that this
18 No. 15‐1962
kind of threat is not enough to support a claim for retaliation.
See Nagle v. Village of Calumet Park, 554 F.3d 1106, 1120 (7th Cir.
2009) (“a suspension without pay that is never served does
not constitute an adverse employment action” for retaliation
purposes), quoting Whittaker v. Northern Illinois University, 424
F.3d 640, 647 (7th Cir. 2005); Ajayi v. Aramark Business Services,
Inc., 336 F.3d 520, 531 (7th Cir. 2003) (disparate impact claim;
no adverse employment action where employee was in‐
formed of impending demotion but never actually demoted);
see also Dunn v. Washington County Hospital, 429 F.3d 689, 692–
93 (7th Cir. 2005) (“dark hints of future adverse employment
action” were not themselves adverse employment actions for
Title VII retaliation purposes). Poullard suggests that the 2009
letter of admonishment he received is proof that harm flowed
from the threats, but he does not explain what effect if any
that letter had on his compensation, career prospects, or con‐
ditions of employment.3
3 Our cases on unfulfilled threats have not always appeared consistent.
For example, we have left open “the possibility that a plaintiff could argue
that a singular threat of termination had the impact of dissuading a rea‐
sonable worker from supporting a discrimination complaint.” Chapin v.
Fort‐Rohr Motors, Inc., 621 F.3d 673, 681 n.2 (7th Cir. 2010); cf. Dunn, 429
F.3d at 692 (“Talk is cheap; unless Dunn knew that Coy had sabotaged the
career of other nurses, his statements would not have dissuaded reasona‐
ble persons from protecting their own rights under the statute and thus
cannot violate Title VII.”). We think this is simply a reflection of the Su‐
preme Court’s instruction that “the significance of any given act of retali‐
ation will often depend upon the particular circumstances. Context mat‐
ters.” Burlington Northern, 548 U.S. at 69. Here, Poullard does not explain
why the unfulfilled threats of discipline he received were significant
enough in context to rise to the level of a materially adverse action, and
we see no basis for that conclusion in the record.
No. 15‐1962 19
Admittedly, there is a tension between this outcome and
the purposes underlying Title VII retaliation claims. “The an‐
tiretaliation provision seeks to prevent employer interference
with ‘unfettered access’ to Title VIIʹs remedial mechanisms.”
Burlington Northern, 548 U.S. at 68, quoting Robinson v. Shell
Oil Co., 519 U.S. 337, 346 (1997). If an employer threatens an
employee with discipline based on her previous protected ac‐
tivity and thereby deters her from using those mechanisms,
the purpose of Title VII’s anti‐retaliation provision has been
frustrated—but because the unfulfilled threat may not itself
be actionable, the employer suffers no consequences. On the
other hand, the anti‐retaliation provision “protects an indi‐
vidual not from all retaliation, but from retaliation that pro‐
duces an injury or harm.” Id. at 67. We do not doubt that
threats of future discipline can cause stress or worry, but so
too can “petty slights or minor annoyances that often take
place at work and that all employees experience,” which the
Supreme Court has excluded from the bounds of materially
adverse actions. Id. at 68.
We must emphasize, however, that an unfulfilled threat of
discipline for protected activity, if not actionable itself, may
well be relevant evidence of retaliatory intent behind a more
concrete adverse action. See, e.g., Volovsek v. Wisconsin Dep’t of
Agriculture, Trade and Consumer Protection, 344 F.3d 680, 688
(7th Cir. 2003) (pre‐Burlington Northern; supervisors’ discus‐
sion of how to “get rid of” an employee was not adverse ac‐
tion for retaliation purposes but could be relevant to motive).
For example, if Poullard had been threatened with discipline
if he filed another complaint, had done so anyway, and were
later disciplined, the threat could be evidence of retaliatory
intent and thus a causal connection. Likewise, if an employer
20 No. 15‐1962
offered a legitimate, non‐discriminatory reason for the disci‐
pline, the earlier threats might serve as evidence of pretext.
That is not this case, however. Poullard does not seek to use
the threats to show cause or pretext with respect to a different
adverse action. The threats themselves were not materially
adverse actions, so Poullard’s retaliation theory based on the
threats of discipline fails.
The alleged racially offensive conduct is a somewhat dif‐
ferent matter. Harassment can constitute a materially adverse
action for retaliation purposes, but as we have said, “not eve‐
rything that makes an employee unhappy is an actionable ad‐
verse action.” Chaib v. Indiana, 744 F.3d 974, 982 (7th Cir. 2014)
(citation and quotation marks omitted); see also Hilt‐Dyson v.
City of Chicago, 282 F.3d 456, 466 (7th Cir. 2002) (harassment
must be serious enough to be “actionable” to constitute mate‐
rially adverse action). The question is still whether the racially
offensive conduct Poullard alleges is serious enough to dis‐
suade a reasonable employee from engaging in protected ac‐
tivity.
Only three incidents Poullard described have even a tenu‐
ously arguable connection to race: (1) the meeting in October
2008, when Cardinali threw a toy monkey at Poullard and
said that management intended to “get the monkeys off the
backs of management”; (2) the incident in October 2008 when
Mailand referred to Poullard as a “sugar daddy”; and (3) Mai‐
land’s comment in November 2009 that Poullard was a “better
person” than before, apparently with reference to an older
photograph in which Poullard had an afro hairstyle. On the
spectrum of offensive conduct, these statements fall at best on
the less severe end. Cf. Cerros v. Steel Technologies, Inc., 288 F.3d
1040, 1047 (7th Cir. 2002) (“an unambiguously racial epithet
No. 15‐1962 21
falls on the ‘more severe’ end of the spectrum”), citing Rodgers
v. Western‐Southern Life Insurance Co., 12 F.3d 668, 675 (7th Cir.
1993). The first remark in particular, which could be very trou‐
bling out of context, actually referred to a well‐known Har‐
vard Business Review article about the value of delegation,
entitled “Management Time: Who’s Got the Monkey?” See
William Oncken, Jr. & Donald L. Wass, Management Time:
Who’s Got the Monkey?, Harvard Business Review, Nov.–Dec.
1999, available at https://hbr.org/1999/11/management‐time‐
whos‐got‐the‐monkey (describing article as “one of the pub‐
lication’s two best‐selling reprints ever”). The other two re‐
marks were at worst mild and ambiguous. They do not sup‐
port a reasonable inference of discriminatory animus, nor are
they overtly hostile in any objective sense.
The alleged harassment was also not “an incessant part of
the workplace environment,” Jackson v. County of Racine, 474
F.3d 493, 499 (7th Cir. 2007). Poullard points to just three ques‐
tionable incidents over fourteen months. We do not mean to
minimize the negative effects Poullard says these incidents
had on his life. But the test is an objective one. On this record,
no reasonable jury could find the alleged harassing conduct
was severe enough to dissuade a reasonable employee from
exercising his Title VII rights. It was not actionable retaliation.
Hilt‐Dyson, 282 F.3d at 463, 465–66 (though employee consid‐
ered incidents demeaning and degrading, conduct was not se‐
vere enough to constitute actionable harassment and could
not support claim for retaliation); see also Burlington Northern,
548 U.S. at 68–69 (standard for judging harm in Title VII retal‐
iation context must be objective).
22 No. 15‐1962
Finally, Poullard argues that the failure to compensate him
at a higher level for the work he was performing was a mate‐
rially adverse action and that his continued GS‐11 classifica‐
tion has disadvantaged him in applications for jobs both in‐
side and outside the department. The denial of a promotion
can be an adverse action for purposes of a retaliation claim.
Malin v. Hospira, Inc., 762 F.3d 552, 558 (7th Cir. 2014); Volovsek,
344 F.3d at 688. But as Poullard concedes, he never sought a
promotion. He requested a desk audit in 2010, which was de‐
nied, but Mailand testified that she had Poullard’s concerns
evaluated by a classification specialist, who reported that in
his opinion Poullard’s classification was appropriate so he did
not receive the audit.4
These facts hint at the basic problem with Poullard’s pay‐
discrimination theory of retaliation. Both before and after his
protected activity, the conditions of his employment re‐
mained exactly the same. His classification and pay remained
GS‐11, and he continued to be responsible for managerial du‐
ties that he believed were beyond his grade. His theory that
the pay disparity was a “continuing form of retaliation” is
nothing more than his discrimination claim recast. It is a poor
fit when, as far as this record shows, the administrative com‐
plaints Poullard filed changed nothing about the compensa‐
tion‐related terms and conditions of his employment in the
4 This evidence is admissible for its effect on Mailand, whose state of mind
is relevant, though not for the truth of the specialist’s statement that
Poullard’s classification was actually appropriate. See Fed. R. Evid.
801(c)(2); Cooper‐Schut v. Visteon Automotive Systems, 361 F.3d 421, 430 (7th
Cir. 2004) (testimony as to what plaintiff had been told by another em‐
ployee was properly treated as hearsay and admitted only “for the effect
that it had on its listener.”).
No. 15‐1962 23
department. Nor has he presented anything more than spec‐
ulation that the refusal to increase his pay was due to his pro‐
tected activity. There is no suspicious timing—there is no “ac‐
tion,” only a pattern of inaction that began before he filed his
complaint and continued afterward. There are no suspicious
remarks connecting the department’s pay decisions to
Poullard’s complaint, and Poullard has pointed to no similarly
situated comparators who received a pay raise or a desk audit
and did not engage in protected activity. On this record, a rea‐
sonable trier of fact could not infer that the refusal to pay
Poullard at a GS‐13 level was retaliatory. Castro, 786 F.3d at
564. The district court properly granted summary judgment
to the defendant on the retaliation claims.
C. Hostile Work Environment
Finally, Poullard argues that he was subjected to a racially
hostile work environment. To survive summary judgment on
this claim, Poullard must present evidence sufficient for a rea‐
sonable jury to find that (1) the environment was both subjec‐
tively and objectively offensive; (2) the harassment he suf‐
fered was based on his membership in a protected class; (3)
the conduct was severe or pervasive; and (4) there is a basis
for employer liability. Alexander v. Casino Queen, Inc., 739 F.3d
972, 982 (7th Cir. 2014), quoting Mendenhall v. Mueller Stream‐
line Co., 419 F.3d 686, 691 (7th Cir. 2005).
We have explained above why the three arguably race‐
tinged remarks did not rise to the level of severe or pervasive
conduct. Poullard asks us to consider those remarks in com‐
bination with all the other conduct of which he complains—
the pay disparity, the letter of admonishment, the threat from
24 No. 15‐1962
Cardinali that she “knew people in Washington,” and so on.5
But even taking those additional facts into account, we agree
with the district court that Poullard has not shown that the
alleged harassment was severe or pervasive enough to rise to
the level of a hostile work environment. Cf. Herron v. Daim‐
lerChrysler Corp., 388 F.3d 293, 303 (7th Cir. 2004) (employee’s
complaints “about transfers, a late overtime payment, his sal‐
ary, and difficulties with managers” were “normal workplace
friction,” not harassment); Patton v. Indianapolis Public School
Board, 276 F.3d 334, 339 (7th Cir. 2002) (no hostile work envi‐
ronment claim where employee alleged that her supervisor
“treated her in a rude, abrupt, and arrogant manner, ignored
her work‐related suggestions and failed to keep her informed
about changes at work”).
The judgment of the district court is AFFIRMED.
5 We can consider events outside the Title VII filing period for purposes
of a hostile work environment claim, so long as “an act contributing to the
claim occurs within the filing period.” National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101, 117 (2002); see also Turner v. The Saloon, Ltd., 595 F.3d
679, 684–85 (7th Cir. 2010) (applying Morgan’s continuing violation doc‐
trine to hostile work environment claim).