In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐1702
JERRY L. LEWIS,
Plaintiff‐Appellant,
v.
ROBERT WILKIE,
Secretary of Veterans Affairs,
United States Department of Veterans Affairs,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 16‐cv‐1092 — Pamela Pepper, Judge.
____________________
ARGUED SEPTEMBER 27, 2018 — DECIDED NOVEMBER 29, 2018
____________________
Before FLAUM, MANION, and SYKES, Circuit Judges.
MANION, Circuit Judge. Jerry Lewis is an employee of the
United States Department of Veterans Affairs (the “Agency”).
Lewis worked as a cook in the Nutrition and Food Service De‐
partment from December 2008 until September 2009 and then
again from December 2013 until April 2015. The four‐year gap
in employment from 2009 to 2013 occurred because Lewis was
2 No. 18‐1702
terminated and then, after a successful Equal Employment
Opportunity (EEO) complaint, was reinstated to his former
position.
Lewis alleges that upon reinstatement he faced retaliation
from the Agency and two supervisors for his EEO activity.
The district court granted summary judgment to the Agency,
holding in part that none of the alleged retaliatory actions
constituted a materially adverse action. We agree with the dis‐
trict court’s thorough analysis and conclusion and affirm the
judgment.
I. Background
A. Factual Background
In December 2008, the Agency hired Lewis as a cook in the
Nutrition and Food Service Department. In this position,
Lewis was supervised by John Schmidt (the Agency’s chief of
food production) and Jean Wroblewski. In September 2009,
his employment was terminated at the recommendation of
Schmidt and the request of Wroblewski. Lewis filed an EEO
complaint alleging discrimination based on race, age, and re‐
taliation, and a hostile work environment. In September 2013,
the EEO Administrative Law Judge found in favor of Lewis
on the claim of retaliation alone and ordered the Agency to
reinstate Lewis to his former position. The Agency was also
ordered to provide Lewis with a six‐month training period, a
mentor, and weekly meetings between Lewis and the mentor.
Lewis was reinstated in December 2013 to his previous po‐
sition, again reporting to Schmidt and Wroblewski. He ulti‐
mately requested and received a transfer in April 2015 to a
different department after he experienced what he alleges
was unlawful retaliation for his 2009 EEO complaint. Lewis
No. 18‐1702 3
specifically recites eleven incidents that he alleges constituted
retaliation. Ten of these incidents can be grouped in three cat‐
egories: incidents involving Agency administrative failures;
incidents involving his supervisor Schmidt; and incidents in‐
volving his supervisor Wroblewski. The eleventh incident in‐
volved a 60‐day performance review that the Agency re‐
quired him to sign. We discuss each of these incidents below.
1. Incidents Involving Agency Administrative Failures
Lewis alleges three incidents of administrative failures at‐
tributable to the Agency in general rather than any individual
member of management. First, Lewis asserts that the Agency
failed to provide him with a locker upon his return to work.
On his first day back to work, the Agency did not give Lewis
a locker in which to store his personal belongings and cloth‐
ing. He asked Schmidt to assign him a locker, and Schmidt
directed him to request one from facility/building manage‐
ment. When Lewis did so, he was told that none were availa‐
ble.
Schmidt told Lewis he could change into his work uniform
and store his belongings in Schmidt’s office, but Lewis de‐
clined because the office was a cubicle with wide‐open win‐
dows. Schmidt suggested that he simply wear his uniform to
work, but he refused this too, asserting it would be a violation
of the sanitation policy. Schmidt then became frustrated and
told Lewis that he would have to figure out some way to come
to work in his uniform. Either that same day or the next day,
the Agency provided a locker after Lewis brought his com‐
plaint to the Agency’s EEO Program Manager. Lewis alleges
that this difficulty caused him stress, anxiety, and fear.
4 No. 18‐1702
Lewis next alleges that he did not receive a paycheck on
December 20, 2013, the first regularly scheduled payroll date
after his reinstatement. He had returned to work on Decem‐
ber 2, 2013, for three days of training, and then took medical
leave from December 5, 2013, until January 6, 2014. He filed a
complaint of reprisal with the Agency’s Office of Resolution
Management on December 31, 2013, when he did not receive
his first paycheck on December 20. The Agency ultimately re‐
solved this issue and he received the payment in February
2014. Lewis asserts that the delayed paycheck was disrespect‐
ful and manipulative and that it caused him stress.
Finally, Lewis alleges that his pay rate was improperly re‐
duced. On January 3, 2014, he received his first paycheck after
reinstatement, but the amount was approximately $1.50 an
hour less than his payrate. This issue was not resolved until
March 2014. He alleges that dealing with the Agency regard‐
ing this incident caused him stress and frustration, and he tes‐
tified that it felt as though the Agency had a vendetta against
him.
2. Incidents Involving Schmidt
Lewis alleges five incidents that specifically involve his su‐
pervisor Schmidt. First, Schmidt gave Lewis unwarranted
counseling about organizing the freezer. Sometime during the
second week of January 2014, Schmidt confronted Lewis and
accused him of maintaining a disorganized freezer. Accord‐
ing to Lewis, however, the freezer only looked disorganized
because Schmidt ordered too much food. Lewis asserted that
Schmidt had adjusted the quantities on the food order based
on his distrust of Lewis’s judgment, and that the resulting
oversupply caused the disorganization. Although this inci‐
dent led to what Lewis refers to as “unwarranted counseling,”
No. 18‐1702 5
he does not allege that he was otherwise disciplined in con‐
nection with this incident. He alleges that it caused him to be
stressed, fearful, and nervous.
Second, Lewis claims Schmidt altered Lewis’s work
schedule and subsequently threatened to discipline him when
Lewis left early because of the alteration. This incident began
one afternoon when Schmidt instructed Lewis to come to
work at 6:00 a.m. the following day to cover the shift of a
coworker scheduled to work from 6:00 a.m. to 2:30 p.m.
(Lewis’s normal shift was 6:30 a.m. to 3:00 p.m.). Based on
Schmidt’s instruction to come early, Lewis worked from 6:00
a.m. to 2:30 p.m. the next day. The following day, Schmidt
called a meeting with Lewis and a union steward in which he
scolded Lewis for leaving “early” at 2:30 p.m., told him to pay
attention to the schedule and follow it verbatim, and stated
that it “could be a discipline thing” if Lewis left early. Never‐
theless, Lewis received no further discipline as a result of this
incident. Lewis alleges that this event caused him to have dif‐
ficulty concentrating on his work and led him to speak to the
Agency’s EEO program manager to request a department
transfer.
The third incident involving Schmidt relates to the
Agency’s sign‐out procedure. According to this procedure,
whenever an employee leaves the department for any reason
other than lunch or usual work breaks, he is required to sign
out and to sign in upon return. In February 2014, Schmidt in‐
structed Lewis that he was required to sign out whenever he
left the department to attend his weekly mentor meetings or‐
dered by the ALJ. Lewis alleges that Schmidt had not checked
the sign‐out sheet to see if he was already complying with this
6 No. 18‐1702
procedure before instructing him to do so. He asserts that be‐
cause of this incident, he felt stress, anxiety, fear, and lack of
focus. He does not allege that he was disciplined in relation to
this incident.
In the fourth incident Lewis cites, Schmidt questioned
Lewis about his whereabouts after Lewis left the department
to use the restroom. According to the Agency’s policy, em‐
ployees are not required to sign out when leaving the depart‐
ment to use the restroom. In his EEO hearing testimony,
Lewis stated that once he told Schmidt he had only gone to
use the restroom, Schmidt did not question him further.
Lewis does not allege that he was disciplined in relation to
this incident.
Finally, in the fifth incident, on January 14, 2014, Schmidt
called Lewis to meet to discuss Lewis’s request for additional
administrative leave but required a witness to be present be‐
fore he would discuss it with him. Lewis alleges that Schmidt
did not require a witness to be present during conversations
with any other employee. According to Schmidt, he required
a witness because Lewis’s 2009 EEO complaint falsely ac‐
cused him of saying things he never said, and he wanted a
witness to protect himself from false accusations. He testified
that no other employee had ever accused him of saying some‐
thing he did not say.
Once two witnesses were present, Schmidt met with Lewis
and told him that his request for administrative leave had
been denied. Lewis testified that this incident caused him
stress, anxiety, and made him feel like a misfit.
No. 18‐1702 7
3. Incidents Involving Wroblewski
Lewis alleges two incidents involving his supervisor
Wroblewski. First, Lewis alleges that on January 14, 2014,
Wroblewski instructed Lewis’s coworkers to monitor his
whereabouts. He alleges he learned about this when a
coworker, Latoya Dixon,1 told him that Wroblewski had so
instructed her and the department supervisors, and that she
and other coworkers were monitoring his movements within
the department. Lewis did not feel the need to investigate fur‐
ther about why his location was being monitored, testifying
that “[t]his is something they do in [Lewis’s] unit.”
Dixon, on the other hand, stated in her deposition that she
had not been instructed by Wroblewski to monitor Lewis, that
no one told her they were monitoring him, and that she did
not monitor him, but that she knew it was going on and her
personal belief was that Wroblewski wanted Lewis out of the
department because of his 2009 EEO complaint.
Second, Lewis alleges that he learned from various
coworkers that Wroblewski had instructed a coworker, Jason
Borgwardt, to gather negative information about him. Lewis’s
history with Borgwardt is a troubled one. His 2009 EEO com‐
plaint alleged that Borgwardt, along with two other cooks,
had verbally harassed him and intentionally made it difficult
for him to do his job. Another coworker testified that
Borgwardt had more than once stated Lewis should never
have been reinstated and that he had “worked the system.”
1 Throughout the briefs and record, Dixon’s first name is alternately
spelled Latoya, LaToya, or Latonya. We adopt the spelling given by Dixon
in her deposition and used by the district court. (Doc. 15‐6, Tr. of Latoya
Dixon Deposition, at 3.)
8 No. 18‐1702
The testimony regarding the instruction from Wroblewski
to Borgwardt is inconsistent. At the EEO hearing, Borgwardt
stated that Wroblewski was receiving multiple complaints
from employees regarding Lewis’s performance, so she in‐
structed Borgwardt to notify the other cooks that if there were
any more instances of Lewis being negligent in his responsi‐
bilities, they were to let Borgwardt know. Borgwardt claimed
he was instructed to write any such complaints down and
give them to Wroblewski so that she could identify the areas
in which Lewis needed to be retrained. Borgwardt gathered
this information for approximately thirty days and he claimed
that he gave handwritten notes to Wroblewski on roughly five
to six occasions.
Borgwardt testified that he told Schmidt about Wroblew‐
ski’s directive, and that Schmidt disagreed with the directive.
Schmidt initially testified that he had no knowledge of
Wroblewski’s instruction to Borgwardt, but ultimately re‐
called that Borgwardt had mentioned it.
Wroblewski’s testimony was that she did not specifically
recall receiving any complaints about Lewis after his 2013 re‐
instatement. She testified that she never instructed Borgwardt
to gather information about Lewis and that she did not recall
receiving any such information from Borgwardt.
Lewis testified that Borgwardt’s efforts to gather negative
information about him caused him to work in continual fear,
and that he felt stress, anger, and nervousness. He com‐
plained to the Agency’s HR department and requested a de‐
partment transfer, but the Agency did not follow up with his
complaint. As with the other incidents, Lewis does not allege
that Borgwardt’s note‐taking ever led to any discipline, repri‐
mand, or change in his job responsibilities.
No. 18‐1702 9
4. The 60‐Day Performance Review
Finally, Lewis alleges that the Agency subjected him to an
adverse employment action by requiring him to sign a 60‐day
performance review even though Lewis was not a probation‐
ary employee. The performance review is a checklist that ad‐
dresses an employee’s progression on the job. Lewis was
given the same performance review that the Agency required
for any employee in a new position and his review was posi‐
tive. The Agency took no discipline or negative employment
action against him in connection with the review. Neverthe‐
less, because the form used for this review was labeled as a
“probationary evaluation,” Lewis felt it was retaliatory. He
asserts that he felt offended and intimidated by the review.
B. Procedural Background
Lewis filed a new EEO complaint in 2014, alleging each of
the above eleven incidents constituted an adverse action and
caused him stress, anxiety, fear, worry, and nervousness. The
ALJ ruled against him. Lewis then filed this civil action in dis‐
trict court, asserting a Title VII retaliation claim against the
Agency. The complaint did not include a hostile work envi‐
ronment claim.
The Agency filed a motion for summary judgment after
discovery, and the district court granted that motion. After
thoroughly recounting the facts and analyzing the law, the
district court held that none of Lewis’s alleged retaliatory
actions constituted a materially adverse action. The district
court also analyzed other elements of the Title VII retaliation
claim and held that Lewis failed to establish causation for ten
of the eleven incidents; failed to identify any similarly‐
situated comparator; and failed to demonstrate that the
10 No. 18‐1702
Agency’s legitimate, non‐discriminatory explanations were
pretextual.
II. Analysis
A district court’s grant of summary judgment is reviewed
de novo, construing all facts and drawing all reasonable infer‐
ences in favor of the party against whom judgment was
granted. Bridge v. New Holland Logansport, Inc., 815 F.3d 356,
360 (7th Cir. 2016). Importantly, “our favor toward the non‐
moving party does not extend to drawing inferences that are
supported by only speculation or conjecture.” Monroe v. Ind.
Dep’t of Transp., 871 F.3d 495, 503 (7th Cir. 2017) (quoting Ar‐
gyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)). A
district court may properly grant summary judgment when
“there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law.” Argyropoulos, 539
F.3d at 732 (citing FED. R. CIV. P. 56(a)). It is the movant’s bur‐
den to demonstrate the absence of genuine issues of material
fact. Spierer v. Rossman, 798 F.3d 502, 507 (7th Cir. 2015). If ac‐
complished, “the burden shifts to the non‐moving party to
come forward with specific facts showing that there is a gen‐
uine issue for trial.” Id.
A. Title VII Retaliation
Title VII prohibits an employer from retaliating against an
employee for opposing or participating in an investigation of
an unlawful employment practice. 42 U.S.C. § 2000e‐3(a); see
also Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th
Cir. 2016). To prevail on a Title VII retaliation claim, the plain‐
tiff must prove that (1) he engaged in an activity protected by
the statute; (2) he suffered an adverse employment action; and
No. 18‐1702 11
(3) there is a causal link between the protected activity and the
adverse action. Lord, 839 F.3d at 563.
Over the years, courts in this Circuit have discussed two
methods through which a claimant may prove a prima facie
retaliation claim: the “direct” method and the “indirect”
method. The direct method requires the plaintiff to simply
present evidence satisfying the elements of the retaliation
claim: (1) he engaged in a protected activity, (2) he suffered
an adverse action, and (3) a causal connection exists between
the activity and the adverse action. Sitar v. Ind. Dep’t. of
Transp., 344 F.3d 720, 728 (7th Cir. 2003).
The indirect method, by contrast, refers to the burden‐
shifting framework established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). That
method allows the plaintiff to establish a prima facie case with‐
out proving a direct causal link by showing that (1) he en‐
gaged in a protected activity, (2) he performed his job duties
according to his employer’s legitimate expectations, (3) he
suffered an adverse action, and (4) he was treated less favora‐
bly than similarly situated employees who did not engage in
protected activity. Sitar, 344 F.3d at 728. If the plaintiff can es‐
tablish his prima facie case with this indirect method, the bur‐
den then shifts to the employer to provide a legitimate, non‐
discriminatory reason for the adverse action. Adusumilli v.
City of Chicago, 164 F.3d 353, 362 (7th Cir. 1998). If the em‐
ployer does so, the burden shifts back to the employee to
prove that the employer’s stated reason is mere pretext. Sitar,
344 F.3d at 728.
In Ortiz v. Werner Enterprises, 834 F.3d 760, 763 (7th Cir.
2016), we cautioned that these two methods are “just means
12 No. 18‐1702
to consider whether one fact … caused another … and there‐
fore are not ‘elements’ of any claim.” We warned district
courts not to split evidence into categories of “direct evi‐
dence” and “indirect evidence,” but to instead evaluate the
evidence as a whole to determine if it “would permit a rea‐
sonable factfinder to conclude that the plaintiff’s race, ethnic‐
ity, sex, religion, or other proscribed factor caused the dis‐
charge or other adverse employment action.” Id. at 764–65.2
We did not reject or alter the McDonnell Douglas burden‐
shifting framework in Ortiz; we simply clarified that there are
not separate classifications of evidence to be evaluated under
different standards, and we eliminated unhelpful surplus
tests. Id. at 766; see also Ferrill v. Oak Creek‐Franklin Joint Sch.
Dist., 860 F.3d 494, 499 (7th Cir. 2017) (“Nothing in Ortiz …
displaced the burden‐shifting analysis established in
McDonnell Douglas.”). In the wake of Ortiz, “[t]he McDonnell
Douglas framework is just ‘a formal way of analyzing a
discrimination case when a certain kind of circumstantial
evidence—evidence that similarly situated employees not in
the plaintiff’s protected class were treated better—would
permit a jury to infer discriminatory intent.” Ferrill, 860 F.3d
at 499–500. The district court in this case outlined the
complicated history of the case law on this point and then
proceeded to evaluate the evidence as a whole. Lewis v.
2 Although Ortiz dealt generally with employment discrimination
claims, we have applied its holding in the context of retaliation claims as
well. See, e.g., Rowlands v. United Parcel Service–Fort Wayne, 901 F.3d 792,
801 (7th Cir. 2018); Lord, 839 F.3d at 563.
No. 18‐1702 13
McDonald, No. 16‐cv‐1092‐pp, 2018 WL 1135555, at *10–11
(E.D. Wis. Feb. 28, 2018).
There is no dispute that Lewis engaged in statutorily pro‐
tected activity by filing his 2009 EEO complaint. Indeed, we
have said that formal EEOC charges are “the most obvious
form of statutorily protected activity.” Coleman v. Donahoe, 667
F.3d 835, 859 (7th Cir. 2012) (quoting Silverman v. Bd. of Educ.,
637 F.3d 729, 740 (7th Cir. 2011), overruled on other grounds by
Ortiz, 834 F.3d 760 (7th Cir. 2016)). Thus, Lewis has demon‐
strated the first element of his claim. The district court, how‐
ever, held that Lewis did not show he suffered a materially
adverse action. Additionally, the district court held that even
if Lewis had suffered an adverse action, he did not establish a
causal connection for many of the incidents, did not identify
a similarly situated employee, and did not rebut the Agency’s
non‐discriminatory explanations. We begin by addressing the
lack of a materially adverse action.
B. No Materially Adverse Action
Lewis first disputes the district court’s holding that he
failed to demonstrate any materially adverse action. For Title
VII retaliation purposes, a materially 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.’” Poullard v.
McDonald, 829 F.3d 844, 856 (7th Cir. 2016) (quoting Roney v.
Ill. Dep’t of Transp., 474 F.3d 455, 461 (7th Cir. 2007)).
The Supreme Court has cautioned that “it is important to
separate significant from trivial harms,” and that Title VII
“does not set forth ‘a general civility code for the American
14 No. 18‐1702
workplace.’” Burlington N. and Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006) (quoting Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 80 (1998)). Title VII’s anti‐retaliation
provision does not protect an employee against “petty slights
or minor annoyances that often take place at work and that all
employees experience.” Id.; see also Poullard, 829 F.3d at 857.
The provision “protects an individual not from all retaliation,
but from retaliation that produces an injury or harm.”
Burlington N., 548 U.S. at 67. Considering this, we held in
Poullard that an employer’s unfulfilled “threats of unspecified
disciplinary action” did not constitute adverse actions,
though such threats “may well be relevant evidence of
retaliatory intent behind a more concrete adverse action.”
Poullard, 829 F.3d at 856–57.
The district court completed a fact‐intensive review of
Lewis’s eleven alleged retaliatory actions and found that none
constituted a materially adverse action.3 We agree.
1. Incidents Involving Agency Administrative Failures
With respect to the three incidents of the Agency’s admin‐
istrative failures (the failure to provide a locker, the delayed
3 Importantly, Lewis’s complaint asserts only a claim of retaliation,
and not a hostile work environment claim. A hostile work environment
claim provides a remedy under Title VII when “the workplace is perme‐
ated with discriminatory intimidation, ridicule, and insult, that is suffi‐
ciently severe or pervasive to alter the conditions of the victim’s employ‐
ment and create an abusive working environment.” Alexander v. Casino
Queen, Inc., 739 F.3d 972, 982 (7th Cir. 2014). Although a hostile work en‐
vironment may stem from retaliatory harassment, see Hobbs v. Chicago, 573
F.3d 454, 464 (7th Cir. 2009), it is a separate claim from retaliation. Since
Lewis did not assert this claim, the district court was not faced with the
question of whether the aggregate effect of all eleven incidents constituted
No. 18‐1702 15
paycheck, and the short paycheck), the district court correctly
concluded that these were simply isolated administrative er‐
rors that were resolved. These actions did not cause Lewis
lasting harm or injury sufficient to dissuade a reasonable em‐
ployee from engaging in protected activity. Although frus‐
trating, these incidents were isolated events and represent the
kind of minor workplace grievances against which Title VII
does not protect. See Burlington N., 548 U.S. at 68. These inci‐
dents do not rise to the level of materially adverse actions.
2. Incidents Involving Schmidt
Regarding the five incidents involving Schmidt, these also
do not rise to the level of materially adverse actions. Four of
these incidents (when Schmidt told Lewis to keep the freezer
organized, altered Lewis’s schedule and then reprimanded
him for leaving early, told Lewis he needed to sign out for
mentor meetings, and questioned Lewis about his wherea‐
bouts after he had gone to the restroom) amount to Lewis be‐
ing falsely accused or receiving unneeded instructions from
Schmidt. These incidents may have resulted in annoyance and
frustration, but they did not cause the kind of harm that
would dissuade a reasonable employee from engaging in pro‐
tected activity. Lewis received no further discipline nor suf‐
fered any lasting detriment related to any of these incidents.
The most significant of these four incidents was the repri‐
mand and threat of discipline after Lewis left work “early”
following Schmidt’s alteration of his work shift. The record,
a “sufficiently severe or pervasive” hostile environment, but simply
whether any of the alleged retaliatory incidents, considered inde‐
pendently, constituted an adverse action. See Boss v. Castro, 816 F.3d 910,
917–18 (7th Cir. 2016) (explaining that a “totality of the circumstances” ap‐
proach is limited to hostile work environment claims).
16 No. 18‐1702
however, shows that this issue was taken no further, and
Lewis was not disciplined.
One incident involving Schmidt does stand out from the
others: Schmidt’s requirement that a witness be present dur‐
ing his conversation with Lewis about his administrative
leave request. By Schmidt’s own admission, this requirement
was directly linked to Lewis’s 2009 EEO activity. Further‐
more, Lewis alleges that Schmidt only placed this require‐
ment on him, thus treating him differently than all other em‐
ployees. A supervisor requiring a witness to be present dur‐
ing a conversation with an employee may well be inconven‐
ient and even embarrassing for that employee. However, the
purpose of the meeting between Schmidt and Lewis was
simply for Schmidt to convey to Lewis that his request for fur‐
ther administrative leave was denied. Those facts do not pre‐
sent a circumstance in which the witness requirement would
dissuade a reasonable employee from exercising his rights.
3. Incidents Involving Wroblewski
The district court recognized that the first incident involv‐
ing Wroblewski, namely Lewis’s allegation that Wroblewski
instructed Lewis’s coworkers to monitor him, does not have
substantial factual support, even construing the facts in the
light most favorable to Lewis. Lewis alleged that his
coworker, Latoya Dixon, told him that Wroblewski had in‐
structed her and others to monitor Lewis’s whereabouts.
However, Dixon testified that Wroblewski never asked her to
monitor Lewis and she never did. While she believed the
Agency and its management were out to get Lewis because of
his EEO activity, she did not provide a basis for this belief.
The district court properly determined that there was no evi‐
dence supporting the allegation that Wroblewski instructed
No. 18‐1702 17
anyone to monitor Lewis’s location or that anyone actually
did so. Furthermore, even if this monitoring did occur, there
is no evidence it caused Lewis harm or injury. He was not dis‐
ciplined in connection with the alleged monitoring. The
knowledge that supervisors are monitoring one’s location
while at work would not dissuade a reasonable employee
from engaging in protected activity.
Regarding Lewis’s allegation that Wroblewski instructed
Borgwardt to solicit negative information about Lewis (and
only about Lewis) from Lewis’s coworkers and that
Borgwardt did so for a period of 30 days, he contends that the
district court applied the wrong standard in analyzing this al‐
legation. Namely, Lewis argues that the district court improp‐
erly relied upon Hottenroth v. Village of Slinger, 388 F.3d 1015,
1030 (7th Cir. 2004), which stated “it is well established that
unfulfilled threats that result in no material harm cannot be
considered an adverse employment action under Title VII.”
The district court concluded that the facts showed at most an
implicit threat of discipline that never materialized, “which is
not enough to constitute an adverse employment action un‐
der Seventh Circuit law.” Lewis, 2018 WL 1135555, at *15.
Lewis acknowledges that Hottenroth involved a Title VII retal‐
iation claim but asserts that Hottenroth relies on a line of cases
dealing with Title VII discrimination claims, not retaliation.
See Ajayi, 336 F.3d 520, 531 (citing Traylor v. Brown, 295 F.3d
783, 788 (7th Cir. 2002)). Lewis argues that the district court
thus applied the Title VII discrimination standard for adverse
action rather than the proper standard in a retaliation context.
This argument is unavailing.
First and foremost, regardless of the cases it cited, Hotten‐
roth was a Title VII retaliation case, as Lewis acknowledges.
18 No. 18‐1702
He points to no precedent contradicting Hottenroth or holding
that unfulfilled threats resulting in no material harm can be
adverse actions in a Title VII retaliation context. He instead
supports his argument by reciting the Burlington Northern
standard—that an action is materially adverse if it would
likely dissuade a reasonable employee from engaging in pro‐
tected activity—and argues that Wroblewski’s instruction to
Borgwardt meets that standard. See Burlington N., 548 U.S. at
67–68. But the district court also stated this standard in its dis‐
cussion of adverse actions in a Title VII retaliation claim. See
Lewis, 2018 WL 1135555, at *11 (citing Poullard, 829 F.3d at
856). Lewis’s argument that the district court failed to apply
the correct standard is without merit.
Moreover, even setting aside Hottenroth and the cases it re‐
lied upon, there is ample precedent in this Circuit and in Su‐
preme Court case law supporting the proposition that an ad‐
verse action in the Title VII retaliation context must produce
a material injury or harm, and that unfulfilled threats do not
meet that standard. See, e.g., Burlington N., 548 U.S. at 67 (stat‐
ing the anti‐retaliation provision “protects an individual not
from all retaliation, but from retaliation that produces an in‐
jury or harm”); Poullard, 829 F.3d at 856–57 (holding threats of
unspecified future discipline were not materially adverse ac‐
tions); Stephen v. Erickson, 569 F.3d 779, 790 (7th Cir. 2009) (af‐
firming “[f]ederal law protects an employee only from retali‐
ation that produces an injury”); Dunn v. Wash. Cty. Hosp., 429
F.3d 689, 692 (7th Cir. 2005) (holding statements implying an
No. 18‐1702 19
employer would do what he could to impede the plaintiff’s
career did not cause any injury and were not adverse actions).
In Poullard, we held that an employer’s threats of unspeci‐
fied discipline having no effect on the plaintiff’s compensa‐
tion or career prospects and producing no injury were not ad‐
verse actions:
While we do not doubt that the possibility of discipline
can be stressful, we have previously held that this kind
of threat is not enough to support a claim for retalia‐
tion. … We do not doubt that threats of future disci‐
pline 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 ma‐
terially adverse actions.
Poullard, 829 F.3d at 856–57 (first citing Nagle v. Vill. of Calumet
Park, 554 F.3d 1106, 1120 (7th Cir. 2009), and then quoting Bur‐
lington N., 548 U.S. at 68).
The district court correctly determined that Wroblewski’s
and Borgwardt’s conduct constituted, at most, an implicit
threat of future discipline, but resulted in no injury or harm
greater than stress and worry, and thus did not constitute an
adverse action. While this kind of unfulfilled threat of disci‐
pline “may well be relevant evidence of retaliatory intent be‐
hind a more concrete adverse action,” it does not constitute a
materially adverse action in and of itself. Id. at 857.
4. The 60‐Day Performance Review
Finally, regarding the 60‐day performance review, Lewis
alleges that this constituted an adverse action because he was
not a probationary employee, and therefore should not have
20 No. 18‐1702
been treated like one. Lewis, however, was not singled out by
this requirement because every employee who changes jobs
or is promoted at the Agency is required to complete such a
performance review. Lewis’s performance review results
were positive. Furthermore, the ALJ’s order resulting from
Lewis’s 2009 EEO case required the Agency to provide Lewis
with retraining and mentoring.
Lewis may have disliked the performance review, but “not
everything that makes an employee unhappy is an actionable
adverse action.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th
Cir. 1996). The review was a standard company requirement
for employees in new positions and did not result in any in‐
jury or harm to Lewis. The review was not likely to dissuade
a reasonable employee from exercising his rights, and thus the
district court properly concluded that this did not constitute
an adverse action.
C. No Causal Link, Similarly Situated Comparators, or
Demonstration of Pretext
Although the district court’s holding that Lewis failed to
demonstrate any materially adverse action was dispositive,
the court went further and held that Lewis also failed to
demonstrate a causal link between his protected activity and
nearly all of the alleged retaliatory actions;4 that he failed to
identify any similarly‐situated employee; and that he failed to
demonstrate the Agency’s legitimate, non‐discriminatory ex‐
planations were pretextual. Lewis argues that each of those
4 Regarding Schmidt’s requirement that a witness be present during
his conversation with Lewis, the district court held that “there is a causal
connection, but no adverse employment action.” Lewis, 2018 WL 1135555,
at *16.
No. 18‐1702 21
conclusions was wrong. He also argues that the district court
confused the direct and indirect methods of proof by requir‐
ing him to identify a similarly‐situated employee and demon‐
strate pretext rather than separately analyzing his claim un‐
der the direct method of proof which requires neither.
Because we are affirming the district court’s holding on
the dispositive issue that none of the alleged retaliatory
actions constituted a materially adverse action, we need not
reach an analysis of the questions of causal connection,
similarly‐situated employees, or pretext. We do note,
however, that Lewis’s assertion that the district court
confused the direct and indirect methods of proof and failed
to separately analyze his claim under the direct method is a
misrepresentation of the district court’s opinion and a
misunderstanding of our holding in Ortiz.
The district court very clearly set forth this Circuit’s case
law regarding the two methods, and then followed Ortiz’s di‐
rective to analyze the evidence as a whole to determine
“whether the evidence would permit a reasonable factfinder
to conclude that the plaintiff’s [protected activity] caused the
… adverse employment action.” Ortiz, 834 F.3d at 765. For a
reasonable factfinder to find in Lewis’s favor, the evidence
would have to establish either a causal connection between
Lewis’s protected activity and the adverse action he suffered
or else support an inference of retaliatory motive. Sitar, 344
F.3d at 728; c.f. Ferrill, 860 F.3d at 499–500 (describing the
McDonnell Douglas burden‐shifting framework in a discrimi‐
nation claim context as a means to analyze evidence support‐
ing an inference of discriminatory intent). The district court
assumed only for the sake of argument that Lewis had suf‐
fered a material adverse action. The court determined that
22 No. 18‐1702
Lewis had not presented evidence of a causal connection for
any of the alleged retaliatory actions save one (the witness re‐
quirement). The court then proceeded to analyze whether
Lewis had identified a similarly situated employee or rebut‐
ted the Agency’s non‐discriminatory explanations as pre‐
textual. Both elements (similarly situated employees and pre‐
text) are necessary for a factfinder to infer a retaliatory motive
under the McDonnell Douglas framework. Sitar, 344 F.3d at
728.
The district court’s method was an appropriate way to
conduct the analysis in light of Ortiz, where we were “con‐
cerned about the proposition that evidence must be sorted
into different piles, labeled ‘direct’ and ‘indirect,’ that are
evaluated differently.” Ortiz, 834 F.3d at 766. We instructed
instead that “all evidence belongs in a single pile and must be
evaluated as a whole.” Id. The district court did exactly that.
III. Conclusion
For the reasons stated above, we AFFIRM the decision of
the district court.