Laura L. Rozumalski v. W.F. Baird & Associates, Ltd.

Laura Rozumalski was sexually harassed

by her direct supervisor, Mark Riedel. That much is undisputed.

Also undisputed is that when Rozumalski reported

the harassment to her employer, W.F. Baird & Associates, Ltd.

(“Baird”), the company responded by swiftly investigating

the incident and firing Riedel. But that is not the end of the

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story. This case is about the aftermath of those events and

how they culminated in Rozumalski’s loss of her own job.

Rozumalski claims that Baird dismissed her in retaliation

for her role in Riedel’s firing, in retaliation for complaining

about her supervisor’s continued friendship with Riedel, or

as a result of sex discrimination. The district court concluded

that no trier of fact could find in her favor. We agree with that

disposition: while it may be possible for workplace harassment

to haunt a victim’s ability to succeed long after the incident,

the facts that Rozumalski has presented do not support

a finding of retaliation. She has similarly failed to create a jury

issue on discrimination. We therefore affirm the district

court’s grant of summary judgment to Baird.

I

Rozumalski started out as a water resources engineer at

Baird’s Madison, Wisconsin, office in 2010. Riedel was her supervisor.

For several years she was generally successful in the

position. Then, at an out‐of‐state work conference in July

2012, Riedel tried to kiss and put his arm around Rozumalski

in front of clients. He tried more of the same the next day at

the airport. Rozumalski reported the behavior to Baird, and

Baird immediately assigned two members of its management

team to investigate: Lars Barber and Jeffrey Bellile. Following

this inquiry, Baird fired Riedel on August 2, 2012, and then

promoted Rozumalski to his former position. Her new supervisor,

Alex Brunton, worked out of the company’s office in

Oakville, Ontario (a suburb of Toronto), and so Barber

stepped in as a local manager responsible for her non‐substantive

supervision.

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Rozumalski thrived in her new position. She received positive

evaluations, and Baird gave her a significantly larger

end‐of‐year bonus for 2012 than it had expected to award. In

the spring of 2013, Rozumalski was promoted again, this time

to the position of Leader of Rivers and Watersheds, a more

complex job with greater responsibility. She remained under

Brunton’s supervision for substantive matters and Barber’s

for local issues.

These background facts are undisputed. What happened

next is not. Rozumalski insists that she received only positive

feedback about her work as Leader of Rivers and Watersheds.

Baird tells a different story. According to Brunton’s testimony,

Rozumalski struggled with her business development

responsibilities and submitted a report that fell grossly below

company standards and required significant reworking. According

to Barber, Rozumalski was consistently tardy, often

arriving at work an hour after most of her colleagues without

excuse.

Rozumalski expected smooth sailing for her December

2013 evaluation since, she recalled, Brunton told her in advance

to expect “all good things.” That is not what happened.

The written documents identified several areas where Rozumalski

needed improvement, including communication,

work quality, business development, and maintaining regular

office hours. The parties dispute the overall tone of her inperson

review. Rozumalski says the in‐person review was far

more critical and dismissive than the written documents reflect.

Baird says the conversation matched the mixed and

(what it characterizes as) the constructive tone of the written

documents.

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Rozumalski was baffled by what she perceived as a sudden

180‐degree shift in Brunton’s assessment of her performance.

Her confusion cleared away a few weeks later, however,

when she learned that when Brunton was in town for

her performance review, he had breakfast with none other

than Mark Riedel. Rozumalski was convinced that her negative

evaluation from Brunton was the result of his breakfast

conversation with Riedel. She promptly brought up this suspicion

verbally with Barber.

Two months after the December evaluation, Rozumalski

received another negative performance review. Brunton and

Barber wrote her a letter dated February 18, 2014, in which

they charged that her work continued to suffer in the areas of

communication, deliverables, and work quality. They provided

specific examples to support these concerns.

Rozumalski continued to complain to Barber about

Brunton. Eventually Barber suggested that she put her complaints

in writing. She did so, in a letter to him dated March

20, 2014, where she explained her suspicion that the relationship

between Brunton and Riedel—and perhaps something

said at the December breakfast—had poisoned Baird’s opinion

of her and led to the sea‐change in its evaluation of her

work. The letter further stated that given the way Riedel “violated”

and “disrespected” her, Rozumalski was uncomfortable

with any continued connections to Baird. She responded

to the criticisms of her performance by suggesting that they

were inaccurate or the result of personal animus on Brunton’s

part. According to Rozumalski, Brunton thwarted her efforts

to do her job by cutting her out of meetings and not communicating

with her. Brunton testified that Barber shared this letter

with him shortly after Barber received it.

No. 18‐3586 5

At Barber’s suggestion, on April 14, 2014, Rozumalski sent

a revised version of her March 20 letter to Barber, Brunton,

and Bellile, who had taken over Barber’s managerial role. On

May 1, 2014, Brunton, Bellile, Barber, and Matt Clark (another

Baird manager) sent a letter to Rozumalski acknowledging

her letters but disagreeing with some of the facts and inferences

she had drawn. The May 1 letter reaffirmed the earlier

criticisms of Rozumalski’s performance. It warned that further

debate about her performance would be counterproductive

and informed Rozumalski that she was being placed on

an Employee Improvement Plan (EIP) to help her with her

performance issues. Brunton admits that Rozumalski’s complaints,

specifically her negative attitude and inability to admit

to her performance issues, played a part in the decision to

put her on an EIP.

On May 5, 2014, Rozumalski sent what would be her final

letter to Baird management. This time, her letter did more

than vaguely suggest that a relationship between Riedel and

Brunton lay at the source of her struggles at Baird. It explicitly

alleged that Brunton was retaliating against her for reporting

Riedel’s sexual harassment, and it branded her placement on

the EIP “punishment” for continuing to “speak[] up” about

the suspected ties between Brunton’s criticisms of her performance

and the July 2012 harassment.

Rozumalski’s EIP set forth several strict requirements, including

that she maintain regular office hours and inform Bellile

if she was going to leave the office other than for her normal

lunch break. On June 23, Rozumalski skipped lunch and

instead took what turned out to be a 90‐minute break in the

middle of the afternoon to get her nails done. She did not tell

Bellile that she was leaving the premises. While she was gone,

6 No. 18‐3586

something came up that Brunton claimed needed her immediate

attention. Bellile was unable to locate her, though according

to Rozumalski he did not try to call her on her cell

phone or email her. No matter. Her unauthorized absence in

violation of the strict terms of her EIP led Bellile to decide that

she had to go. Baird fired her effective June 25, 2014.

II

Rozumalski followed up with this lawsuit, in which she

asserts that Baird retaliated and discriminated against her in

violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C.

§§ 2000e‐3(a), 2000e‐2(a)(1). Because this appeal reaches us

from a grant of summary judgment in Baird’s favor, our job is

to take a fresh look at the record.

We begin with Rozumalski’s retaliation theory. We must

decide whether, construing all the facts in her favor, there is

enough evidence to permit a reasonable jury to find that “(1)

she engaged in protected activity; (2) she suffered an adverse

employment action; and (3) a causal connection exists between

the two.” King v. Ford Motor Co., 872 F.3d 833, 841 (7th

Cir. 2017).

As she is entitled to do, Rozumalski relies on circumstantial

evidence to “supply the causal link … from which a jury

may infer intentional discrimination.” Greengrass v. Int’l Monetary

Sys. Ltd., 776 F.3d 481, 486 (7th Cir. 2015). Relevant circumstantial

evidence may include “suspicious timing, ambiguous

statements of animus, evidence other employees were

treated differently, or evidence the employer’s proffered reason

for the adverse action was pretextual.” Id. The key question

is whether a reasonable juror could conclude that there

was a causal link between the protected activity or status and

No. 18‐3586 7

the adverse action. Ortiz v. Werner Enterprises Inc., 834 F.3d

760, 765–66 (7th Cir. 2016).

A

Rozumalski’s first theory of retaliation revolves around

the December 2013 breakfast between Riedel and Brunton.

The relevant protected activity allegedly related to that event

was her initial report of Riedel’s harassment 17 months earlier,

in July 2012. Rozumalski suggests that at this breakfast,

either Brunton learned about the harassment complaint for

the first time from Riedel and it prompted him to retaliate

against the woman who got his friend fired, or Riedel—angry

about his firing for harassment—told Brunton negative things

about Rozumalski that poisoned his opinion of her.

We begin with the first variant: that Brunton learned about

the reason for Riedel’s firing at the breakfast. At their depositions,

Riedel testified that he did not recall the breakfast, and

Brunton testified that he remembered it but that Rozumalski’s

name did not come up. Brunton—who unlike Barber and Bellile

did not participate in the investigation into Riedel’s harassment—

also said that he did not know about Rozumalski’s

harassment complaints against Riedel until months later,

when she explicitly mentioned them in her May 2014 letter.

Rozumalski concedes the latter point: she admitted in paragraph

73 of her response to Baird’s proposed findings of fact

that “Dr. Brunton did not learn of the reasons for Mr. Riedel’s

termination from Baird, or of the existence of the July 2012

Complaint, until May 5, 2014.” Brunton thus could not have

retaliated against Rozumalski for the July 2012 harassment

complaints until May 2014 at the earliest. By that time, how8

No. 18‐3586

ever, Brunton’s concerns about her work were long documented

and she was already on an EIP. The only adverse employment

action that follows May 2014 is her dismissal.

Another concession, which appears in paragraph 106 of

the same document, finishes off this argument. Rozumalski

admits that Brunton had nothing to do with the decision to

sack her and that “Bellile made the termination decision on

his own.” If Brunton played no role in the adverse employment

action, his discriminatory animus is irrelevant. At a minimum,

the person with discriminatory animus must influence

the ultimate employment decision enough to be a “proximate

cause” of that action, see Staub v. Proctor Hosp., 562 U.S. 411,

422 (2011); normally, outside of the “cat’s‐paw” context, that

person must be the decisionmaker, see Schandelmeier‐Bartels v.

Chicago Park Dist., 634 F.3d 372, 378–80 (7th Cir. 2011). Unless

Brunton’s alleged animus somehow influenced Bellile—a

connection Rozumalski has not made—her complaints

against Brunton are beside the point.

Rozumalski does turn to the cat’s‐paw theory in another

version of events she suggests for the December 2013 breakfast

between Riedel and Brunton. She argues that Riedel still

held a grudge against her for getting him fired, and so he said

negative things about her performance to Brunton. (In other

words, Riedel used Brunton to “punish” Rozumalski for getting

him fired.) She suggests that Riedel’s comments soured

Brunton’s opinion of her at a crucial moment before a performance

evaluation and then snowballed.

The district court refused to consider this theory because

it found that Rozumalski waived it. We agree with this assessment.

In footnote seven of her district‐court brief, Rozumalski

said:

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Laura’s claim for retaliation does not stem from her reporting

the July 2012 assault. Rather, Laura claims that

Defendant unlawfully retaliated and discriminated

against her for reporting her belief that Brunton was

retaliating against her due to his friendship with

Riedel, her assailant.

This is not enough to alert the district court to her intent to

use a cat’s‐paw theory. “It is a well‐settled rule that a party

opposing a summary judgment motion must inform the trial

judge of the reasons, legal or factual, why summary judgment

should not be entered,” and if she loses the motion, she cannot

make novel points on appeal. Domka v. Portage County, 523

F.3d 776, 783 (7th Cir. 2008) (internal quotations and citations

omitted). We apply waiver even if “the issue may have been

before the district court in more general terms,” still holding

a party to its responsibility to make “a specific argument.”

Fednav Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d 834, 841 (7th Cir.

2010). A cat’s‐paw theory based on the idea that Riedel took

revenge on Rozumalski through Brunton is not the same as a

theory that Brunton retaliated in response to Rozumalski’s

complaints in spring 2014. Rozumalski “has changed h[er]

theory after losing below and that prevents us from considering

it.” United States v. Ritz, 721 F.3d 825, 828 (7th Cir. 2013).

B

Rozumalski’s second retaliation theory is that she engaged

in protected activity in spring 2014 when she complained both

orally and in writing about Brunton. Her complaints to Barber

throughout that period alleged discriminatory conduct prohibited

by Title VII, and so, she reasons, any poor treatment

by Baird that resulted from those reports violates Title VII.

10 No. 18‐3586

It does not matter whether the alleged discriminatory conduct

reported—in this case Brunton’s behavior—“was in fact

a violation of the statute,” as long as Rozumalski’s actions

were “based on a good‐faith and reasonable belief” that she

was “opposing unlawful conduct.” O’Leary v. Accretive Health,

Inc., 657 F.3d 625, 631 (7th Cir. 2011). Baird says that Rozumalski

cannot claim her actions were protected activity because

her suspicions about Brunton were objectively unreasonable.

We need not resolve that dispute, however, since this retaliation

claim fails for the same reasons as the previous one: the

timing does not add up, and Rozumalski’s admissions preclude

it.

The burden‐shifting framework from McDonnell Douglas

Corporation v. Green can be a helpful way of organizing the

evidence in a Title VII case. 411 U.S. 792, 802 (1973). See Ferrill

v. Oak Creek‐Franklin Joint Sch. Dist., 860 F.3d 494, 499 (7th Cir.

2017). A plaintiff wishing to pursue a retaliation claim may

therefore do so by showing that “(1) she engaged in a statutorily

protected activity; (2) she performed her job according to

her employer’s legitimate expectations; (3) despite her satisfactory

job performance, the employer took an adverse action

against her; and (4) she was treated less favorably than similarly

situated employees who did not engage in statutorily

protected activity.” Sitar v. Indiana Dep’t of Transp., 344 F.3d

720, 728 (7th Cir. 2003). If the plaintiff establishes those elements,

the burden shifts to the defendant to articulate a legitimate

reason for the adverse action. Id. If it does so, the burden

of production returns to the plaintiff to show that the defendant’s

reason is pretextual. Id. The ultimate burden of persuasion

is at all times on the plaintiff. Id.

No. 18‐3586 11

Rozumalski would like to apply that framework to her

case. But she immediately runs into trouble doing so. Even if

we assume that she engaged in a statutorily protected activity,

she has an insurmountable problem with timing. The negative

performance feedback she received in December 2013

predates any of her complaints, verbal or written. She verbally

complained to Barber about Brunton and Riedel sometime

before February 18, 2014, but Barber did not pass those

complaints along to others. The February 18 letter, though

signed by Barber, documents Rozumalski’s continued performance

deficiencies in areas of her job supervised by Brunton.

At that point, because of Barber’s silence, Brunton knew nothing

about the complaints. Barber forwarded the March 20 letter

along to Brunton, and all relevant decisionmakers saw the

subsequent letters that were addressed to the wider management

group. Putting all of this together, by the time anyone

other than Barber—most notably Brunton—learned of her

complaints, there were already four months of documented

performance issues on her record.

Even if we thought that Rozumalski managed to eke out a

prima facie case of retaliation, she still cannot prevail, because

she made another critical concession. Title VII forbids retaliation,

not wrongful or even unreasonable employment actions.

The only thing that matters is thus whether a trier of fact could

find that Baird did not believe the reason it provided—in

other words, that its stated reason was pretextual. We have

said that “[a]n inquiry into pretext requires that we evaluate

the honesty of the employer’s explanation, rather than its validity

or reasonableness.” Hill v. Tangherlini, 724 F.3d 965, 968

(7th Cir. 2013). In paragraph 59 of her response to Baird’s proposed

findings of fact, Rozumalski concedes that “Baird believes

that Plaintiff’s work continued to suffer from various

12 No. 18‐3586

deficiencies through the first quarter of 2014.” In other words,

Baird’s reasons were not pretextual, and it must prevail.

III

Rozumalski also asserted that Baird discriminated against

her on the basis of her sex in violation of Title VII. The district

court granted summary judgment for Baird on this claim, too.

Once again using the burden‐shifting approach, Rozumalski

tried to present a prima facie case of discrimination by showing

“(1) she is a member of a protected class, (2) her job performance

met [the employer’s] legitimate expectations, (3) she

suffered an adverse employment action, and (4) another similarly

situated employee not in the protected class was treated

more favorably. Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir.

2012) (internal citations omitted). This time, Rozumalski

stumbles on the need to point to an adequate comparator.

Determining whether other employees are similarly situated

requires a “‘flexible, common‐sense’ examination of all

relevant factors.” Id. at 846 (quoting Henry v. Jones, 507 F.3d

558, 564 (7th Cir. 2007)). While the comparability of other employees

is a context‐dependent question often suitable for a

jury, when the facts of a case suggest that no reasonable jury

could see enough commonality for a meaningful comparison

between the employees, summary judgment is appropriate.

Id. at 846–47. Employees must be similar “in all material respects,”

including engaging in identical or comparable misconduct,

in order to reveal whether differential treatment is

occurring. Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 365–

66 (7th Cir. 2009).

No. 18‐3586 13

Rozumalski contends that Riedel and Brunton are similarly

situated employees, but each one differs from Rozumalski

in critical ways. Riedel’s alleged misconduct, inappropriate

physical conduct, was quite different from Rozumalski’s

alleged performance issues. Moreover, unhelpfully to Rozumalski,

it was resolved by his firing. The performance deficiencies

that she alleges Brunton exhibited (missed deadlines

and unreliability) are more like her problems, but the record

is lacking critical details about Brunton. We know nothing

about the specifics of his alleged performance issues, when

they occurred, or who knew about them. Rozumalski’s brief

spends only a paragraph on this argument. Though she may

escape waiver of this point, she cannot avoid a finding that

the record lacks enough evidence to permit a jury to find in

her favor. Rozumalski finally suggests that she was the only

employee put on an EIP in company history, but without evidence

that other employees had similar alleged performance

problems and yet were not put on an EIP, that contention does

little for her. Without an adequate comparator, Rozumalski’s

prima facie case collapses, and thus summary judgment was

appropriate on her Title VII discrimination claim.

We AFFIRM the judgment of the district court.