Date: 06-19-2017

Case Style: Autumn Tibbs v. Administrative Office of the Illinois Courts

Case Number: 16-1671

Judge: Hamilton

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Central District of Illinois

Plaintiff's Attorney: John Baker

Defendant's Attorney: Karen L McNaught

Description: Plaintiff Autumn Tibbs worked
as an administrative assistant in the Illinois court system. She
was suspended the day she returned to work after taking
leave under the Family and Medical Leave Act of 1993, 29
U.S.C. §§ 2601 et seq. She was then fired after she chose not to
attend a disciplinary meeting. Tibbs sued the Administrative
Office of the Illinois Courts. She contends that this agency employed
her and that she was fired in retaliation for taking
2 No. 16‐1671
FMLA leave. The district court granted summary judgment
for the agency, reasoning that it never employed Tibbs and
thus could not have discharged her, and that in any event,
there is no evidence of retaliation. We affirm because Tibbs
cannot point to evidence from which a jury could reasonably
infer that any of her supervisors harbored retaliatory animus
against her. We do not resolve the question whether the Administrative
Office employed Tibbs.
I. Factual and Procedural Background
Because we are reviewing a grant of summary judgment,
we accept as true the evidence offered by Tibbs, the non‐moving
party, and she is entitled to the benefit of conflicts and the
evidence and any reasonable inferences in her favor. Whitaker
v. Wisconsin Dep’t of Health Servs., 849 F.3d 681, 682 (7th Cir.
2017). We summarize the facts without vouching for their objective
accuracy, but in light of the applicable summary judgment
standard.
Before she was fired in September 2012, Tibbs worked as
the administrative assistant to the Chief Judge of the Circuit
Court of the Seventh Judicial Circuit, which covers six counties
in Illinois, including Sangamon County where Tibbs
worked. The Chief Judge of the circuit, who serves for two
years, is responsible for the administrative functions of the entire
circuit. Each county also has a Presiding Judge who is responsible
for administrative functions within that county.
When Tibbs was fired, Judge Richard Mitchell was coming to
the end of his two‐year term as Chief Judge of the circuit.
Judge Leslie Graves was the Presiding Judge of Sangamon
County at the time, and she supervised Tibbs’s “day‐to‐day
functions.” Barbara Mabie, the trial court administrator for
the Chief Judge, also supervised Tibbs.
No. 16‐1671 3
Tibbs twice took unpaid leave under the FMLA because of
health issues—first from March to May 2011 and later from
June to August 2012. The day she returned from leave in August
2012, Judge Graves gave her a letter saying she was being
placed on paid administrative leave pending a disciplinary
meeting with Chief Judge Mitchell. This disciplinary letter described
several instances of misconduct. First, the letter noted,
more than a year earlier, in March 2011, Tibbs had tried to
change the assignment schedule for court reporters. Assigning
court reporters was one of Tibbs’s primary responsibilities,
but she had asked the court reporters to keep this new
system “quiet” while she tried it out. The change led to harsh
criticism from one judge and controversy among the courthouse
staff. The disciplinary letter from Judge Graves said
that Tibbs had lacked authority to make the change and accused
her of “insubordination, bringing the Court [into] disrepute
or attempting to discredit the Court; and conduct unbecoming
a judicial employee.”
The second instance of misconduct described in the disciplinary
letter had also occurred a year earlier, when Tibbs was
preparing to return to full‐time status after her first FMLA
leave. Judge Graves had asked Tibbs to meet with her about
returning to work full time, but according to the letter, Tibbs
“disregarded” this instruction and instead contacted Chief
Judge Mitchell about the issue. This action, too, was described
as “insubordination” and “conduct unbecoming a judicial
employee.”
The disciplinary letter also described an incident that had
occurred immediately before Tibbs took her second period of
FMLA leave beginning in May 2012. A former court reporter,
Lynn Ruppert, needed to retrieve notes for transcription from
4 No. 16‐1671
the vault area of the Sangamon County Courthouse. She contacted
Tibbs to gain entry. Ruppert twice looked for the box
containing her notes, and at some point she reported to courthouse
security that the box was missing. Tibbs herself later
found the box, but in an unusual location in the vault and with
the words “jury commission” written on the side visible to
onlookers. The other side of the box had Ruppert’s name and
the case number on it. Tibbs concluded that the box had been
recycled and simply misplaced. Tibbs used a marker to line
through the words “jury commission” and then showed Ruppert
where she had found the box in the vault. They then put
the box “back up on the shelf the way that it should have been
in the first place.”
The disciplinary letter said that Tibbs had committed misconduct
by failing to notify anyone that a box was missing
from the vault and by taking Ruppert to the vault without authorization.
Judge Graves apparently had told Tibbs several
days earlier that another employee, Sandra Merrill, not Tibbs,
was to “handle all of the vault requests” going forward. The
letter also said that Tibbs had reshelved the box improperly
“in such a way as to further inhibit its discovery.”
Finally, the disciplinary letter said that Tibbs had “repeatedly
attempted to undermine” her supervisor’s authority by
“making disparaging comments” to co‐workers. Neither the
comments nor the recipients of them have been disclosed.
The letter invited Tibbs to respond to the allegations at a
meeting with Chief Judge Mitchell and others. The letter also
said that Tibbs could respond in writing, but it warned that
the meeting would proceed with or without her. Tibbs wrote
Chief Judge Mitchell saying she would not attend. In that letter,
she did not address the accusations against her. After she
No. 16‐1671 5
had skipped the meeting and not refuted the allegations,
Chief Judge Mitchell discharged her.
Tibbs then brought this suit. The only claim relevant on
appeal is her claim against the Administrative Office of the
Illinois Courts. Tibbs described the Administrative Office as
“an agency of state government that has the responsibility of
providing administrative assistance to the courts of the State
of Illinois,” and she characterized it as her employer. She alleged
that the Administrative Office had retaliated against her
for using FMLA leave.
The court granted the Administrative Office’s motion for
summary judgment for two reasons. First, the court found
that the Administrative Office had not actually employed
Tibbs and was not otherwise responsible for terminating her
employment. Second, the court found that even if the agency
did control and terminate Tibbs’s employment, she had not
offered sufficient evidence to support an inference that she
was fired to retaliate against her for using FMLA leave.
II. Analysis
On appeal Tibbs argues that, despite the district court’s
contrary view, a jury could find that the Administrative Office
employed her. She also asserts that the timing of her discharge
and her disagreements with the official explanation are evidence
from which a jury could find that the agency retaliated
against her. The Administrative Office responds that, even if
it was one of Tibbs’s employers, it was not responsible for her
discharge or any retaliatory motive behind it. Instead, the
agency argues, Chief Judge Mitchell, whom Tibbs did not sue,
had sole authority to fire her. The Administrative Office also
6 No. 16‐1671
contends that Tibbs lacks evidence that she was fired in retaliation
for taking FMLA leave.
As noted above, because we are reviewing a grant of summary
judgment, we accept as true the evidence offered by
Tibbs, the non‐moving party, and we give her the benefit of
conflicts in the evidence and all reasonable inferences in her
favor. Whitaker, 849 F.3d at 682. We turn first to the issue of
retaliatory intent. To survive summary judgment on her claim
of retaliation under the FMLA, Tibbs had to point to evidence
supporting a reasonable inference that she was fired because
she took protected leave. See Preddie v. Bartholomew Consol.
School Corp., 799 F.3d 806, 819 (7th Cir. 2015). The principal
evidence she offered in support of her claim was the timing.
She was suspended immediately upon returning from the
FMLA leave.
That timing is suspicious, of course. The problem is that
suspicious timing alone is rarely enough by itself. A plaintiff
must ordinarily present other evidence that the employer’s
explanation for the adverse action was pretext for retaliation.
Harden v. Marion County Sheriff’s Dep’t, 799 F.3d 857, 864‐65
(7th Cir. 2015); Simpson v. Office of Chief Judge of Circuit Court
of Will County, 559 F.3d 706, 713–14 (7th Cir. 2009). The critical
question is simply whether the inference of unlawful intent is
reasonable (at summary judgment) or correct (at trial). See
Loudermilk v. Best Pallet Co., 636 F.3d 312, 315 (7th Cir. 2011)
(occasionally “an adverse action comes so close on the heels
of a protected act that an inference of causation is sensible”).
Answering that question calls for some factual context. Id.
The Administrative Office introduced evidence that Tibbs
was fired for facially legitimate reasons: ignoring Judge
Graves’s instruction not to handle vault requests from court
No. 16‐1671 7
reporters, going over Judge Graves’s head about returning to
work full time, and creating a new assignment schedule for
court reporters without the authority to do so. Tibbs argues
that these reasons are phony and thus are pretexts to cover
the Administrative Office’s true retaliatory motives.
Pretext “involves more than just faulty reasoning or mistaken
judgment on the part of the employer; it is [a] lie, specifically
a phony reason for some action.” Burton v. Bd. of Regents
of the Univ. of Wis. Sys., 851 F.3d 690, 698 (7th Cir. 2017)
(quoting Harden, 799 F.3d at 864). We have recognized that an
employer’s explanation for discharging a worker may sometimes
be “fishy enough to support an inference that the reason
must be discriminatory.” Loudermilk, 636 F.3d at 315 (reversing
summary judgment where employer claimed it fired plaintiff
for taking photographs at workplace to support his claims of
discrimination); see also Stalter v. Wal‐Mart Stores, Inc., 195
F.3d 285, 289–91 (7th Cir. 1999) (reversing summary judgment
where employer claimed it fired plaintiff for “theft,” consisting
of eating a handful of taco chips from an open bag left in
the employee break room).
Merely disagreeing with an employer’s reasons does not
meet this standard. A plaintiff must point to “evidence tending
to prove that the employer’s proffered reasons are factually
baseless, were not the actual motivation for the discharge
in question, or were insufficient to motivate” the termination.
Carter v. Chicago State Univ., 778 F.3d 651, 659 (7th Cir. 2015),
quoting Tank v. T‐Mobile USA, Inc., 758 F.3d 800, 808 (7th Cir.
2014). Where multiple reasons are given, as in this case, the
plaintiff faces a greater challenge. Showing that just one reason
was a pretext may not be enough. See Simpson v. Beaver
8 No. 16‐1671
Dam Cmty. Hosps., Inc., 780 F.3d 784, 798 (7th Cir. 2015); Bodenstab
v. County of Cook, 569 F.3d 651, 659 (7th Cir. 2009); Fischer
v. Avanade, Inc., 519 F.3d 393, 403 (7th Cir. 2008).
Tibbs has failed to offer evidence sufficient to support an
inference that any reason was false. First she asserts that she
was never told not to accompany court reporters to the courthouse
vault. But at her deposition, she acknowledged that she
had accompanied Lynn Ruppert to the vault after being told
by Judge Graves that, going forward, Sandra Merrill would
“handle all of the vault requests.” The following exchange
then took place:
Q. But you took Lynn down to the vault after
you had notification on May the 25th
that Sandra was supposed to comply
with those requests—
A. I did.
Q. —to go down to the vault?
A. I did, and I shouldn’t have.
Thus, Tibbs’s own understanding of the instructions from
Judge Graves was she did not have authority to take Ruppert
into the vault. By conceding that she should not have done so,
Tibbs admitted misconduct. She asserts that the new policy
limiting her access to the vault did not take effect until June 1,
after she had taken Ruppert to the vault, pointing to an e‐mail
announcing that the new policy would take effect on that
date. But that e‐mail changes nothing about her testimony.
That the policy did not become “official” until June 1 does not
mean that Tibbs could ignore Judge Graves’s instructions directly
to her a few days earlier. Tibbs herself agreed that she
should not have done so.
No. 16‐1671 9
Tibbs has not argued on appeal that any of the other reasons
given for firing her was false. Those reasons—her failed
attempt at assigning court reporters to a new rotation a year
earlier, her decision to speak with Chief Judge Mitchell instead
of Judge Graves about returning to work, also a year
earlier, and her alleged “disparaging comments” seeking to
undermine supervisors—could be viewed as mistaken or unfair.
Keeping in mind the summary judgment standard, we
must acknowledge that Tibbs had not been disciplined before
the action leading to her firing. Assigning court reporters was
part of her job, and, according to the Administrative Office
itself, she supposedly was employed by Chief Judge Mitchell,
not Judge Graves. But the role of judges and juries is not to
exercise our own judgment about management decisions and
reasons. It is to decide whether the stated reasons were or
could reasonably be found dishonest. Mere disagreement
about the reasons given for Tibbs’s discharge does not support
an inference of pretext, particularly where Tibbs declined
even to participate in the disciplinary process.
Tibbs did not dispute the testimony that Chief Judge
Mitchell—who ultimately decided to fire her—“honestly believed”
that each reason listed in the disciplinary letter supported
her discharge. He confirmed by affidavit that he fired
Tibbs for those reasons, that he did so independently, and that
he made the decision only after Tibbs had declined to participate
in the disciplinary process. It is not enough for Tibbs to
argue that Chief Judge Mitchell was wrong in his assessment
of her performance. She needs to point to facts showing that
his explanation is unworthy of belief. See Burton, 851 F.3d
at 698; Harden, 799 F.3d at 864. The district court correctly concluded
that Tibbs failed to raise a genuine issue of fact about
pretext.
10 No. 16‐1671
The second issue in this appeal is whether the Administrative
Office could be held responsible on Tibbs’ claim under
the FMLA. Only “employers” and those acting on their behalf
face liability for retaliation under the FMLA. 29 U.S.C.
§ 2615(a) (creating liability for “employers” who interfere
with FMLA rights); § 2611(4)(A)(ii)(I) (defining “employer” to
include “any person who acts, directly or indirectly, in the interest
of an employer”); see also 29 C.F.R. § 825.220(c) (explaining
that FMLA’s prohibition against interference encompasses
retaliation for taking valid leave); Lewis v. School Dist.
#70, 523 F.3d 730, 741 (7th Cir. 2008) (same). The Administrative
Office argues that Chief Judge Mitchell, and not the
agency, employed Tibbs. The Administrative Office also argues
that even if it was one of Tibbs’s employers, it was not
responsible for the decision to fire her because Chief Judge
Mitchell made that decision of his own accord.
This debate seems to miss the point that, no matter what
person or agency Tibbs reported to, she was employed by the
State of Illinois. The Administrative Office points to one opinion
of this court indicating in dicta in a footnote that the state
agency that employed the plaintiff, rather than the state itself,
is the proper defendant in suit claiming employment discrimination.
See Holman v. Indiana, 211 F.3d 399, 401 n.1 (7th Cir.
2000) (indicating that Title VII plaintiff could sue only Indiana
Department of Transportation and not State of Indiana). In
support of this comment, which addressed an issue not disputed
in Holman, the footnote cited Hearne v. Board of Education
of the City of Chicago, 185 F.3d 770, 777 (7th Cir. 1999),
which held that Chicago teachers employed by the local board
of education could not sue the Governor, the State of Illinois,
or the Illinois Educational Labor Relations Board under Title
No. 16‐1671 11
VII because none was plaintiffs’ employer. The Hearne decision
distinguished between local and State government entities,
not the much finer difference between a State and its
agencies. We will not wrestle this issue to the ground in this
appeal, where the decision does not depend on it. We hope
that plaintiffs, defendants, and district courts might handle
such issues about State agency employees so that such technicalities
will seldom if ever be decisive. If they do become decisive,
we will deal with the problem then.1

* * *

1 Even if the FMLA does require such fine distinctions, we would be
inclined in this case to find that the Administrative Office was Tibbs’ sole
employer. The Administrative Office admitted to employing Tibbs in its
answer and never attempted to withdraw that admission through amendment.
See Crest Hill Land Dev., LLC, v. City of Joliet, 396 F.3d 801, 805 (7th
Cir. 2005) (concession in answer is binding judicial admission that “has
the effect of withdrawing the question” from dispute for purposes of summary
judgment).

Outcome: The judgment of the district court in favor of the Administrative
Office of the Illinois Courts on Tibbs’s claim of FMLA
retaliation is
AFFIRMED.

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