Autumn Tibbs v. Administrative Office of the Illinois Courts

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

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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.

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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

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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

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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

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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

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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.

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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).

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.