In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 21-3278 DIANE M. TRAHANAS, Plaintiff-Appellant, v.
NORTHWESTERN UNIVERSITY and STEVEN J. SCHWULST, Defendants-Appellees. ____________________
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:15-cv-11192 — John J. Tharp, Jr., Judge. ____________________
ARGUED SEPTEMBER 20, 2022 — DECIDED APRIL 7, 2023 ____________________
Before EASTERBROOK, HAMILTON, and BRENNAN, Circuit Judges. BRENNAN, Circuit Judge. Diane Trahanas worked as a re- search technician in a medical lab. After almost three years, she took medical leave and eventually her employment was terminated. Based on statements made to her by her supervis- ing doctor and coworkers, she sued her former university em- ployer and the doctor. She claimed they created a hostile work 2 No. 21-3278
environment in violation of Title VII and retaliated against her under the Family and Medical Leave Act and the Ameri- cans with Disability Act. She also alleged that, contrary to Il- linois law, the defendants defamed her and intentionally caused her emotional distress. The district court granted sum- mary judgment to the defendants, which we affirm. I. A. Factual Background 1 In June 2012, Trahanas began working as a Research Tech- nologist II in Dr. Steven Schwulst’s laboratory at the North- western University Feinberg School of Medicine. She assisted Schwulst in studying traumatic brain injuries by conducting research experiments on mice. She also helped prepare and present research publications about those experiments. At times, Trahanas “got along very nicely” with Schwulst. But starting in the fall of 2012, Trahanas claims Schwulst started making verbally abusive and demeaning remarks about her work ethic, mental health, and sexual orientation. In her deposition, Trahanas said Schwulst called her a “typi- cal millennial” and “Princess Diana” to imply she was spoiled or entitled. He also made comments like “Diane is off her meds,” “Diane needs psychiatric help,” or “Diane is riding the struggle bus again.” Most frequently, Schwulst commented on what he per- ceived as Trahanas’s sexual orientation. During a
1 Because Trahanas appeals from a grant of summary judgment, we
present the facts in the light most favorable to her and draw all inferences in her favor. Perez v. Staples Cont. & Com. LLC, 31 F.4th 560, 563 n.1 (7th Cir. 2022). No. 21-3278 3
conversation about workout routines, Schwulst said women who exercise too much, like Trahanas, look “manly” and are “lesbians.” Trahanas said Schwulst regularly referred to her as such or as a “softball player,” which Trahanas took as a eu- phemism for a lesbian. He also stated he “hope[d his] baby girl will be a lesbian like Diane” because it would make life easier. Trahanas, a heterosexual woman, told Schwulst on multiple occasions that she was not a lesbian. Trahanas did not report Schwulst’s remarks to Northwestern’s human re- sources department or any other administrative employee at the medical school. Trahanas also contends her lab coworkers made harassing comments to her. Schwulst shared lab space with another re- search scientist, Dr. Harris Perlman. Perlman’s lab manager, Rana Saber, would tell Trahanas to “[s]top messing things up,” blame her for “doing everything wrong,” and implore her to “take [her] meds.” According to Trahanas, Saber and another lab coworker intentionally sabotaged a six-month long research project by giving her an outdated “protocol” used for cell analysis. Trahanas mentioned the protocol inci- dent to Schwulst, but she did not report her coworkers’ con- duct to HR. Notwithstanding the lab environment, Trahanas consist- ently received positive performance reviews from Schwulst. After around two years in the lab, Trahanas spoke with Schwulst about receiving a pay raise and a promotion to Re- search Technologist III. Schwulst was receptive, and he reached out to the human resources department about that possibility. HR recommended not changing Trahanas’s title because her responsibilities remained at the Tech-II level, but Trahanas did receive a 3% merit pay raise. Believing a mistake 4 No. 21-3278
had been made about her promised promotion, Trahanas con- tacted HR. She also expressed her frustration to Schwulst, which prompted him to make additional requests for Tra- hanas to receive a greater increase in pay. Schwulst notified Trahanas that, to secure another raise, he needed to meet with her for a midyear performance review. Tensions escalated during that performance review meeting, and Trahanas cried. Despite the contentious meeting, Trahanas ultimately re- ceived a 15% pay raise. Trahanas also aspired to attend medical school. Based on her strong work performance, Schwulst wrote a positive rec- ommendation letter in support of her medical school applica- tions in October 2014. She applied to 15 medical schools in the 2014–15 application cycle but was accepted to none. Six of those schools invited her to submit secondary materials, but she failed to do so by the schools’ deadlines. Trahanas later applied to 11 medical schools in the 2017–18 cycle, including four from the 2014 cycle. Again, none of the medical schools accepted her. Trahanas had been diagnosed with attention deficit hyper- activity disorder, depression, and anxiety in 2007. In the months leading up to February 2015, she reported worsening depressive symptoms. Among multiple stressors, her psychi- atrist noted persistent, high, or increased job stress. Tra- hanas’s symptoms mildly improved by the start of February 2015. But she told her psychiatrist she planned to take time off work because she felt “burnt out.” She did not provide Schwulst or Northwestern with advance notice of her plans to take leave. On February 16, 2015, Trahanas did not report to work. She emailed Schwulst a day later to inform him she was No. 21-3278 5
taking medical leave and would communicate only with the human resources department. After her psychiatrist submit- ted supporting paperwork a few days later, a Northwestern administrator approved Trahanas for twelve weeks of leave under the Family and Medical Leave Act. Schwulst wanted an update on the status of the lab’s cur- rent mice experiments, so he asked an HR employee to reach out to Trahanas on his behalf. While awaiting a response, Schwulst went to find the mice and check the status himself. Believing that Trahanas had started a lab experiment but see- ing no notations on any lab paperwork about its progress, he decided to euthanize the mice. That same day, February 19, Schwulst wrote a letter stating: “I am writing to formally withdraw my prior letter of reference for Ms. Diane Trahanas. I can no longer support her candidacy for admission to med- ical school.” He uploaded the letter to the American Medical College Application Service (“AMCAS”), where he had submitted his initial recommendation letter for Trahanas. The following day, Trahanas responded to the human resources department and indicated she had lost remote access to her work computer. Trahanas’s leave expired in May 2015. She requested Northwestern’s leave administrator to close her leave claim in June, but she did not return to the lab. HR asked Trahanas if she intended to resign or extend her leave. If the latter, North- western needed additional documentation from her doctor. The university further informed Trahanas that failure to re- turn to work or extend her leave would result in termination. Trahanas responded that her doctor was “not allowing [her] to return to work,” but she did not extend leave or return to the lab. Accordingly, Northwestern terminated her 6 No. 21-3278
employment. Trahanas applied for other jobs at Northwest- ern over the next several months. She received one interview but was not hired. B. Procedural Background In 2015, Trahanas sued Northwestern and Schwulst. She brought a hostile work environment claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and a retaliation claim under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101, et seq., against Northwestern. She also brought a claim for retaliation under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601, et seq., against Northwestern and Schwulst. Trahanas additionally sued both defendants for defamation and intentional inflic- tion of emotional distress under Illinois law. In December 2020, the district court granted defendants summary judgment on all claims except the FMLA retaliation claim against Schwulst. The court concluded that Northwest- ern was not liable for creating a hostile work environment under Title VII for two reasons. First, Trahanas did not expe- rience an adverse employment action. Second, she failed to report Schwulst’s and her coworkers’ conduct. Trahanas had alleged that Northwestern retaliated against her for taking FMLA leave in violation of both the FMLA and ADA. Because she provided insufficient evidence, the court granted Northwestern summary judgment on both retaliation claims. Initially, summary judgment was denied for Schwulst on the FMLA retaliation claim because the court found that a reasonable jury could conclude that Schwulst was motivated to withdraw his recommendation letter in part by Trahanas’s decision to take FMLA leave. The district court also ruled that No. 21-3278 7
neither Northwestern nor Schwulst defamed Trahanas be- cause they published no false statements about her. On her claim of intentional infliction of emotional distress, the court did not deem the conduct at issue extreme or outrageous. After Schwulst moved to reconsider, the district court granted him summary judgment on the FMLA retaliation claim in July 2021. The court reasoned that Trahanas had shown no injury and therefore lacked standing, or in the al- ternative she could not recover damages compensable under the FMLA. Trahanas appeals the district court’s grants of summary judgment to Northwestern and Schwulst. 2 II. Analysis “We review de novo a district court’s grant of summary judgment, viewing the facts in the light most favorable to the
2 In her notice of appeal Trahanas wrote that she appealed the orders
“granting summary judgment to Northwestern … on December 23, 2020[,] … and Stephen J Schwulst … on July 8, 2021.” Because Trahanas did not mention Schwulst in reference to the December 2020 order, North- western and Schwulst argue she failed to appeal the district court’s grant of summary judgment in favor of Schwulst on the defamation and emo- tional distress claims. Under Federal Rule of Appellate Procedure 3(c), a notice of appeal must “designate the judgment—or the appealable order—from which the appeal is taken.” FED. R. APP. P. 3(c)(1)(B). The rule provides that “[a]n ap- peal must not be dismissed for informality of form or title of the notice of appeal, [or] for failure to name a party whose intent to appeal is otherwise clear from the notice.” FED. R. APP. P. 3(c)(7). Trahanas’s intent to appeal the entirety of the district court’s dispositive orders granting summary judgment in favor of the defendants is apparent from the text of her notice. See, e.g., Cooper v. Retrieval-Masters Creditors Bureau, Inc., 42 F.4th 688, 694 (7th Cir. 2022). We therefore consider all claims resolved in both orders on appeal. 8 No. 21-3278
non-moving party.” Fin. Fiduciaries, LLC v. Gannett Co., 46 F.4th 654, 668 (7th Cir. 2022) (quoting Ludwig v. United States, 21 F.4th 929, 931 (7th Cir. 2021)). Summary judgment is ap- propriate when “there is no genuine dispute as to any mate- rial fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A genuine issue of material fact ex- ists when “there is sufficient evidence favoring the nonmov- ing party for a jury to return a verdict for that party.” Brown v. Osmundson, 38 F.4th 545, 549 (7th Cir. 2022) (quoting Ander- son v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But a “mere existence of a scintilla of evidence in support of the [non- movant’s] position will be insufficient” to survive summary judgment. Parker v. Brooks Life Sci., Inc., 39 F.4th 931, 936 (7th Cir. 2022) (quoting Anderson, 477 U.S. at 252). We address in order Trahanas’s Title VII hostile work environment claim, ADA and FMLA retaliation claims, and state law claims. A. Hostile Work Environment Trahanas alleges Northwestern subjected her to a hostile work environment in violation of Title VII. Under Title VII, employers cannot discriminate against employees because of their “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). This prohibition on discrimination also reaches the creation of a “hostile or abusive work environ- ment … permeated with discriminatory intimidation, ridi- cule, and insult.” Alexander v. Casino Queen, Inc., 739 F.3d 972, 982 (7th Cir. 2014). To establish a hostile work environment claim, a plaintiff must show: (1) the work environment was both subjectively and objectively offensive; (2) the harassment was based on membership in a protected class; (3) the conduct was severe or pervasive; and (4) there is a basis for employer No. 21-3278 9
liability. Scaife v. U.S. Dep’t of Veterans Affs., 49 F.4th 1109, 1115–16 (7th Cir. 2022) (citing Casino Queen, 739 F.3d at 982)). Different standards apply in evaluating an employer’s lia- bility for a hostile work environment, depending on whether the alleged harasser is the victim’s supervisor or coworker. Paschall v. Tube Processing Corp., 28 F.4th 805, 813 (7th Cir. 2022). For supervisors, an employer is strictly liable when a “supervisor’s harassment culminates in a tangible employ- ment action.” Vance v. Ball State Univ., 570 U.S. 421, 424 (2013). Absent such action, an employer may raise an affirmative de- fense to avoid liability. Id. But when the harasser is a coworker, “the employer is liable only if it was negligent in controlling working conditions.” Id. We consider Northwest- ern’s liability for the conduct of Trahanas’s supervisor Schwulst as well as of her lab coworkers. 1. Supervisor harassment Northwestern’s liability for Schwulst’s conduct hinges on whether his alleged harassment culminated in a tangible employment action. A tangible employment action is a “sig- nificant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Vance, 570 U.S. at 431 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). Trahanas argues that Schwulst promised her a promotion but failed to follow the appropriate procedures. To the con- trary, Schwulst inquired through the proper channels about promoting Trahanas to a Research Technologist III. Because her work responsibilities lined up with the Research Tech–II position, Schwulst was unsuccessful in getting a title change 10 No. 21-3278
approved. But he did succeed in getting Trahanas a 15% pay increase. While tension surrounded discussions about Tra- hanas’s title and pay, Schwulst’s conduct did not result in a tangible employment action. Further, Schwulst took no part in Trahanas’s decision to leave the lab. Following the expiration of her leave, Trahanas chose not to return to work. She told Northwestern that her doctor was “not allowing [her] to return to work,” but she did not extend her leave. In response, Northwestern released her position. Trahanas’s voluntary decision not to return to work or extend leave does not amount to a tangible employment action. Because Schwulst’s conduct did not culminate in a tangi- ble employment action, Northwestern may raise an affirma- tive defense. Under the Faragher-Ellerth defense 3, an employer may avoid liability by showing: “(1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior;” and “(2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities pro- vided by the employer or to otherwise avoid harm.” Hunt v. Wal-Mart Stores, Inc., 931 F.3d 624, 628 (7th Cir. 2019) (citing Ellerth, 524 U.S. at 765). On the first element, the record shows that Northwestern exercised reasonable care to prevent sexually harassing be- havior. “Prevention can involve proactive steps such as
3 Under this defense, Title VII does not require that employers be held
vicariously liable for a hostile work environment created by a supervisor unless that environment is accompanied by an adverse employment ac- tion. Faragher v. City of Boca Raton, 524 U.S. 775, 805–806 (1998); Ellerth, 524 U.S. at 765. No. 21-3278 11
constructing a reporting system for instances of sexual har- assment.” Id. at 629; see also Shaw v. AutoZone, Inc., 180 F.3d 806, 811 (7th Cir. 1999) (“While not required as a matter of law, … the existence of an appropriate anti-harassment policy will often satisfy this first prong.”). The parties agree that Northwestern maintained a policy prohibiting discrimination and harassment based on protected legal categories, includ- ing sex and sexual orientation. The policy, included in its staff handbook, provided instructions and multiple avenues—in- cluding those outside an employee’s supervisory chain of command—for filing complaints. This anti-harassment policy is sufficient to satisfy the first prong of the Faragher-Ellerth de- fense. Second, Northwestern has established that Trahanas “un- reasonably failed to take advantage of any preventive or cor- rective opportunities provided by the employer or to other- wise avoid harm.” Hunt, 931 F.3d at 628. Trahanas admitted that she received Northwestern’s handbook at the start of her employment. She signed an acknowledgement form, which stated that the handbook included “policies that every em- ployee must know regarding … sexual harassment.” That form provided that Trahanas could reach out to anyone in the Department of Human Resources with questions about the handbook’s policies. Whether Trahanas actually read the handbook is “irrelevant because it is undisputed that she received a copy of the policy and that she was required as a condition of her employment to read and comply with [ ] the policy.” Shaw, 180 F.3d at 811. This amounts to constructive knowledge of Northwestern’s anti-harassment policy. Id. Notwithstanding this knowledge, Trahanas did not report Schwulst’s comments to HR or any other administrative 12 No. 21-3278
employee. She communicated frequently with administrative employees about her compensation, job title, and FMLA leave. But at her deposition she admitted she did not report Schwulst’s behavior to the human resources department. Tra- hanas says she feared that Schwulst would retaliate by not writing her a recommendation letter if she complained. Any “fear of unpleasantness cannot excuse [Trahanas] from using the company’s complaint mechanisms.” Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 391–92 (7th Cir. 2010); Shaw, 180 F.3d at 813 (concluding that “an employee’s subjective fears of confrontation, unpleasantness or retaliation do not allevi- ate the employee’s duty under Ellerth to alert the employer to the allegedly hostile environment”). Trahanas’s failure to alert Northwestern about the allegedly hostile environment created by Schwulst establishes the second prong of the Fara- gher-Ellerth defense. Northwestern has established an affirm- ative defense and therefore is not liable under Title VII for Schwulst’s conduct. 2. Coworker harassment Trahanas also argues that her coworkers’ behavior contributed to creating a hostile work environment. She takes issue with her coworkers “mocking and ridiculing [her] be- cause she is under stress and medical care.” For example, Tra- hanas claims that Saber told Trahanas one time: “dude, take your meds.” She also points to the incident where Saber and another lab coworker—both employees in Perlman’s labora- tory—intentionally sought to sabotage her work by giving her an outdated protocol for cell analysis. Although Trahanas alleges inappropriate behavior by her coworkers, her allegations do not show that Northwestern is liable. To start, the inappropriate behavior Trahanas No. 21-3278 13
highlights on appeal is not based on her “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Comments about her mental health do not give rise to liability under Title VII. 4 In addition, Northwestern had no knowledge of any al- leged coworker harassment. Recall that an employer is liable for coworker harassment “only when the employee shows that h[er] employer has been negligent either in discovering or remedying the harassment.” Paschall, 28 F.4th at 813 (inter- nal quotation marks omitted). Generally, “[a]n employer’s le- gal duty in co-employee harassment cases will be discharged if it takes ‘reasonable steps to discover and rectify acts of [ ] harassment of its employees.’” Id. (quoting Parkins v. Civ. Con- structors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir. 1998)). But an employer is not liable “when a mechanism to report the har- assment exists, but the victim fails to utilize it.” Id. at 816 (quoting Durkin v. City of Chi., 341 F.3d 606, 612–13 (7th Cir. 2003)). Northwestern took reasonable steps to discover employee acts of harassment by implementing an anti-harassment pol- icy and establishing complaint mechanisms. As with Schwulst, Trahanas admitted in her deposition that she did not report her coworkers’ comments or conduct to North- western. Without knowledge of what Trahanas’s coworkers were doing, Northwestern cannot be held liable for failing to
4 An individual may bring a hostile work environment claim based on
disability under the ADA. Ford v. Marion Cnty. Sheriff’s Off., 942 F.3d 839, 851–52 (7th Cir. 2019). Trahanas’s initial complaint made such a claim. But after the district court dismissed the claim, Trahanas did not reallege it in her second amended complaint, which is the operative complaint on the parties’ motions for summary judgment. 14 No. 21-3278
rectify the problem. Accordingly, Northwestern is not liable under Title VII for any alleged coworker harassment. B. FMLA and ADA Retaliation We next consider Trahanas’s retaliation claims. The FMLA requires certain employers to provide their employees with up to 12 weeks of unpaid leave each year for qualifying health conditions. 29 U.S.C. § 2612(a)(1). And the ADA prohibits em- ployers from discriminating against individuals based on dis- ability. 42 U.S.C. § 12112(a). Both acts “prohibit employers from retaliating against employees who assert their statutory rights.” Freelain v. Vill. of Oak Park, 888 F.3d 895, 900 (7th Cir. 2018) (citing 29 U.S.C. § 2615; 42 U.S.C. § 12203)). The FMLA and ADA “are legally distinct, but in cases claiming unlawful retaliation, the analyses … overlap.” Id. Retaliation claims brought under either act “require three fa- miliar elements: (1) the employee engaged in statutorily pro- tected activity; (2) the employer took adverse action against the employee; and (3) the protected activity caused the ad- verse action.” Id. at 901. To succeed in showing causation, a plaintiff must demonstrate that “the protected conduct was a substantial or motivating factor in the employer’s decision.” Anderson v. Nations Lending Corp., 27 F.4th 1300, 1307 (7th Cir. 2022). 1. Northwestern Trahanas argues that Northwestern unlawfully retaliated against her for taking FMLA leave by terminating her em- ployment and failing to hire her for another position at the No. 21-3278 15
university. 5 Because the analysis for the FMLA and ADA re- taliation claims overlap, we address them together. The par- ties agree that Trahanas “engag[ed] in statutorily protected activity by utilizing FMLA leave” for purposes of her FMLA retaliation claim. Anderson, 27 F.4th at 1307. For this appeal, we assume without deciding that taking FMLA leave consti- tutes a statutorily protected activity under the ADA. 6 Conse- quently, we focus on whether Northwestern took any adverse actions against Trahanas and whether her taking FMLA leave caused those actions. In the retaliation context, an employer’s action is adverse if “the action would have ‘dissuaded a reasonable worker from’ engaging in protected activity.” Freelain, 888 F.3d at 901–02 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). This objective standard is “based on how a reasonable employee might react” in the plaintiff’s circum- stances. Id. at 902. Termination no doubt qualifies as an
5 In her complaint, Trahanas alleged Northwestern retaliated against
her for taking FMLA leave by locking her out of her work computer. The district court addressed whether the computer lockout was an unlawful retaliatory action in its summary judgment order. But Trahanas does not argue that the computer incident was adverse on appeal, so we consider the argument waived. EEOC v. Wal-Mart Stores E., L.P., 46 F.4th 587, 598 (7th Cir. 2022) (explaining that “arguments not raised in an opening brief are waived”). 6 To have engaged in an activity protected by the ADA, the employee
“must have asserted [her] rights under the ADA by either seeking an ac- commodation or raising a claim of discrimination due to [her] disability.” Preddie v. Bartholomew Consol. Sch. Corp., 799 F.3d 806, 814–15 (7th Cir. 2015). The record provides no evidence that Trahanas asserted her rights under the ADA. Nonetheless, we operate under our assumption for con- venience. 16 No. 21-3278
adverse action. In fact, the FMLA expressly prohibits dis- charging an employee for exercising FMLA rights. 29 U.S.C. § 2615(a)(2); see also Anderson, 27 F.4th at 1307 (concluding that an employee “experienced an adverse action when she was terminated from her position”). The same goes for a failure to hire. See Vance, 570 U.S. at 431 (defining a tangible employ- ment action to include “hiring [or] failing to promote”). Ac- cordingly, we address whether a causal link exists between Trahanas’s protected activity and Northwestern’s release of her employment and subsequent failure to hire her for other posts at the medical school. Viewing the facts in favor of Trahanas, she cannot show that her FMLA leave played a motivating factor in Northwest- ern’s decision to terminate her employment. Trahanas could have chosen to return to her position in Schwulst’s lab follow- ing her leave. Northwestern had held the position open, and Schwulst expected her return. But Trahanas informed North- western she would not come back to work, so Northwestern terminated her position. In a letter sent to Trahanas in June 2015, Northwestern stated: “Since you have not returned to work nor have you re-opened your [extended sick time] claim, your position with Northwestern University has been terminated.” FMLA leave was not a motivating factor in Tra- hanas’s termination. Northwestern released her position be- cause she neither returned to work nor reopened her leave claim. Similarly, Trahanas provides no evidence tending to show that her decision to take FMLA leave was a substantial or motivating factor in Northwestern’s decision not to offer her another position. After her FMLA leave expired, Trahanas ap- plied to other positions at Northwestern without success. No. 21-3278 17
There is no evidence that those making hiring decisions for these jobs knew she had taken FMLA leave. “[A] superior can- not retaliate against an employee for a protected activity about which he has no knowledge.” Stephens v. Erickson, 569 F.3d 779, 788 (7th Cir. 2009). Without knowledge of Tra- hanas’s FMLA leave, hiring decisionmakers at Northwestern could not have retaliated against her for that leave. Because Trahanas failed to raise a genuine issue of material fact on causation, the district court properly granted summary judg- ment to Northwestern on the FMLA and ADA retaliation claims. 2. Schwulst Trahanas also claims Schwulst retaliated against her for taking FMLA leave by withdrawing his letter recommending her for medical school. She contends the withdrawal de- stroyed her dream of attending medical school, her goal of be- coming a doctor, and her professional reputation. Schwulst responds he withdrew his recommendation based on ethical concerns that Trahanas failed to document the status of an ex- periment involving mice before she took leave. The district court first denied Schwulst summary judgment on the claim because a reasonable jury could find Trahanas’s FMLA leave was a motivating factor in Schwulst’s decision to withdraw his recommendation. On reconsideration, the district court dismissed the claim against Schwulst because Trahanas failed to allege an injury and thus had no standing. In the alterna- tive, the court granted Schwulst summary judgment because Trahanas had not suffered damages compensable under the FMLA. Trahanas has standing to bring her FMLA retaliation against Schwulst because in her complaint she alleged an 18 No. 21-3278
actual, concrete, and particularized injury in fact—damage to her professional reputation and the denial of her medical school applications. This court therefore has jurisdiction over Trahanas’s claim. After discovery Trahanas failed to establish that she suffered an injury in fact. So, her claim fails on the merits, not for lack of standing. See Bell v. Hood, 327 U.S. 678, 682 (1946) (“If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.”); United States v. Von Vader, 58 F.4th 369, 371 (7th Cir. 2023). The FMLA allows employees to recover for “wages, sal- ary, employment benefits, or other compensation” or “any ac- tual monetary losses” that result from an employer’s FMLA violation. 29 U.S.C. § 2617(a)(1)(A)(i)(I), (II). The statute also authorizes courts to provide appropriate equitable relief, such as “employment, reinstatement, and promotion.” Id. at § 2617(a)(1)(B). But unlike Title VII and the ADA, “FMLA damages don’t include emotional distress and punitive dam- ages.” Arrigo v. Link, 836 F.3d 787, 798 (7th Cir. 2016). To sur- vive summary judgment, a plaintiff must “come forward with evidence from which a jury could conclude that [s]he suffered damages attributable to one of these adverse actions for which the FMLA provides relief.” Hickey v. Protective Life Corp., 988 F.3d 380, 388 (7th Cir. 2021). Trahanas fails to show she suffered damages from Schwulst’s alleged retaliation. Schwulst uploaded his second letter withdrawing his support of Trahanas’s medical school candidacy to AMCAS on February 19, 2015. Of the fifteen schools Trahanas applied to in the 2014–15 cycle, nine rejected her application prior to February 19. Five of the remaining six No. 21-3278 19
schools considered her application withdrawn before that date because she did not submit secondary materials. The sole remaining school, Florida Atlantic University, labeled her ap- plication as “Withdrew Before Accepted” by April 1, 2015. Trahanas cannot recall whether she submitted secondary ma- terials to Florida Atlantic University. Her lack of recollection does not create a genuine dispute of material fact about whether that university considered her application and de- nied it due to Schwulst’s letter. See Tinder v. Pinkerton Sec., 305 F.3d 728, 735–36 (7th Cir. 2002) (concluding that a plaintiff’s lack of recollection did not create a genuine issue of material fact). A reasonable juror could not conclude, based on this ev- idence, that Schwulst’s second letter contributed to her rejec- tion. Trahanas reapplied to four of the same schools in the 2017–18 cycle. Northwestern and Schwulst, through an expert witness, offered evidence that AMCAS does not retain letters of recommendation submitted in earlier application cycles and that medical schools only consider letters written for the application cycle in which they are submitted. Trahanas claims that conversations she had with admissions personnel at various medical schools led her to believe otherwise. But her bare allegations, without more, do not create genuine dis- putes of material fact. No evidence in the record supports Tra- hanas’s argument that any of the four schools to which she reapplied had access to or relied upon the letters Schwulst submitted in 2015. Because Trahanas fails to show that any medical school rejected her based on Schwulst’s withdrawal of his recommendation, Schwulst is entitled to summary judgment on the FMLA retaliation claim. 20 No. 21-3278
C. State Law Claims 1. Defamation Trahanas’s defamation claim against Northwestern and Schwulst is based on the letter Schwulst wrote rescinding his initial letter of recommendation. The entire letter reads: “I am writing to formally withdraw my prior letter of reference for Ms. Diane Trahanas. I can no longer support her candidacy for admission to medical school.” To establish defamation under Illinois law, a plaintiff must show “the defendant made a false statement about the plain- tiff, the defendant made an unprivileged publication of that statement to a third party, and that this publication caused damages.” L. Offs. of David Freydin, P.C. v. Chamara, 24 F.4th 1122, 1129 (7th Cir. 2022) (quoting Solaia Tech., LLC v. Specialty Publ’g Co., 852 N.E.2d 825, 839 (Ill. 2006)). If a statement’s “de- famatory character is obvious and apparent on its face,” it is considered defamation per se, and damages are presumed. Bd. of Forensic Document Exam’rs, Inc. v. Am. Bar Ass’n, 922 F.3d 827, 831–32 (7th Cir. 2019) (quoting Tuite v. Corbitt, 866 N.E.2d 114, 121 (Ill. 2006)). Illinois recognizes “words that impute a person lacks ability or otherwise prejudices that person in her or his profession” as defamatory per se. Solaia Tech., 852 N.E.2d at 839. Defamatory statements “may enjoy constitutional protec- tion as an expression of opinion.” Id. Whether “a statement is a factual assertion that could give rise to a defamation claim” or an opinion protected by the First Amendment “is a ques- tion of law.” Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 882 N.E.2d 1011, 1022 (Ill. 2008). In making that legal de- termination, courts consider “whether the statement has a No. 21-3278 21
precise and readily understood meaning; whether the state- ment is verifiable; and whether the statement’s literary or so- cial context signals that it has factual content.” Solaia Tech., 852 N.E.2d at 840. The constitution protects a defamatory state- ment “only if it cannot be reasonably interpreted as stating actual fact.” Id. Schwulst’s letter contains non-actionable, constitutionally protected statements of opinion. The statements do not have precise and readily understood meanings. There are numer- ous reasons why Schwulst may have withdrawn his recom- mendation. Without additional details, the letter cannot be understood as “precise.” Cf. Hopewell v. Vitullo, 701 N.E.2d 99, 104 (Ill. 1998) (“‘[I]ncompetent’ is an easily understood term, [but] its broad scope renders it lacking the necessary detail for it to have a precise and readily understood meaning.”). More fundamentally, the letter does not contain state- ments that can be objectively verified as true or false. Schwulst’s retraction of support implies “undisclosed and un- assumed facts that support [his] opinion.” Id. But based on the letter alone, medical schools have no factual basis from which to verify why Schwulst retracted his recommendation, mak- ing it too ambiguous and indefinite to constitute a statement of fact. The vaguer and more generalized the “opinion[,] the more likely the opinion is non-actionable as a matter of law.” Id. at 104, 105 (holding that the alleged defamatory statement, “fired because of incompetence,” was “too vague and general to support an action for defamation as a matter of law”). Be- cause Schwulst’s letter does not contain a verifiable factual statement about Trahanas, her defamation claim against him fails. With no liability for Schwulst, Northwestern cannot be held vicariously liable. 22 No. 21-3278
2. Intentional infliction of emotional distress Finally, Trahanas brings state-law claims against North- western and Schwulst for intentional infliction of emotional distress. Illinois sets a “high bar” for intentional infliction of emotional distress claims. Richards v. U.S. Steel, 869 F.3d 557, 566 (7th Cir. 2017). A plaintiff must show that: (1) the defend- ant’s conduct was extreme and outrageous; (2) the defendant intended that his conduct would cause severe emotional dis- tress, or knew that there was at least a high probability that the conduct would inflict severe emotional distress; and (3) the conduct did in fact cause severe emotional distress. Id. (citing Feltmeier v. Feltmeier, 798 N.E.2d 75, 80 (Ill. 2003)). To qualify as outrageous, the conduct “must be so extreme as to go beyond all possible bounds of decency and be regarded as intolerable in a civilized society.” Richards, 869 F.3d at 566 (quoting Feltmeier, 798 N.E.2d at 80). “[M]ere insults, indigni- ties, threats, annoyances, petty oppressions, or other triviali- ties” do not suffice. Id. Regarding severity, the distress inflicted must be “so severe that no reasonable person could be expected to endure it.” Lifton v. Bd. of Educ. of City of Chi., 416 F.3d 571, 579 (7th Cir. 2005); see also Schweihs v. Chase Home Fin., LLC, 77 N.E.3d 50, 63 (Ill. 2016). Liability for emotional distress “is even more constrained in the employment context.” Richards, 869 F.3d at 567. The “everyday job stresses resulting from discipline, personality conflicts, job transfers or even terminations” do not give rise to emotional distress claims, otherwise “nearly every em- ployee would have a cause of action.” Naeem v. McKesson Drug Co., 444 F.3d 593, 605 (7th Cir. 2006) (quoting Graham v. Commonwealth Edison Co., 742 N.E.2d 858, 867 (Ill. 2000)). To obtain relief in the employment context, an employee must No. 21-3278 23
show that an employer “clearly abuses the power it holds over an employee in a manner far more severe than the typical dis- agreements or job-related stress caused by the average work environment.” Id. Viewing the evidence in Trahanas’s favor, her emotional distress claims fail. To begin, it is unclear what conduct Tra- hanas challenges as extreme and outrageous. She notes that, according to her psychiatrist, she experienced worsening de- pression and anxiety related symptoms during the time she worked in the lab due to “multiple stressors,” including “[i]ncreased job stress” and her “boss [ ] not being support- ive.” Trahanas also points to the performance review meeting with Schwulst, where she became upset and cried. Otherwise, Trahanas fails to highlight other distressing conduct in sup- port of her claim. Lack of support from a boss and a tense performance re- view do not constitute extreme and outrageous conduct. Alt- hough Trahanas became upset after meeting with Schwulst, that did not produce more than the “job-related stress caused by the average work environment.” Id. Indeed, “personality conflicts and questioning of job performance are unavoidable … [and] frequently, they produce concern and distress.” Rich- ards, 869 F.3d at 567. But because the meeting did not go “well beyond the parameters of the typical workplace dispute,” it cannot be classified as extreme and outrageous. Lewis v. School Dist. No. 70, 523 F.3d 730, 747 (7th Cir. 2008). The same is true for Trahanas’s claim that Schwulst did not support her. Any perceived lack of support by Schwulst does not amount to a clear and severe “abuse of power” over Trahanas. Naeem, 444 F.3d at 605. 24 No. 21-3278
After Trahanas had taken FMLA leave, her psychiatrist recommended that she “not … return to her previous job” be- cause the high-stress work environment would “likely lead to psychiatric decompensation.” For Trahanas, this provides ev- idence of the intentional emotional distress Schwulst and Northwestern caused. Although Trahanas provides evidence of emotional distress, she must still establish that Schwulst and Northwestern’s conduct was extreme and outrageous and that Schwulst and Northwestern intentionally sought to inflict emotional distress. She does neither, so her emotional distress claims against Schwulst and Northwestern fail. * * * For the reasons stated above, we AFFIRM the district court’s grant of summary judgment to Northwestern and Schwulst on all claims.