Alexis Rachwalski v. Todd W. Blanche

the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-2(a)(1). The district court granted the defendants' motion for summary judgment, concluding that Rachwalski failed to establish a triable issue on her sex discrimination claim. Because, upon de novo review, we see no evidence that defendants asked Rachwalski to resign because of her sex, and because her evidence of a hostile work environment is untimely, we affirm.

I

We draw our account from the summary-judgment record, which we view in the light most favorable to Rachwalski, the nonmoving party. See Barnes-Staples v. Carnahan,

88 F.4th 712, 715 (7th Cir. 2023). During her time with the FBI, Rachwalski was employed in an excepted position, see 5 U.S.C. § 2103(a), with a two-year probationary period. Rachwalski began that probationary period in October 2019 at new agent training in Quantico, Virginia, and upon completion was hired as a special agent. Rachwalski was assigned to the Special Operations Group of the FBI's Indianapolis field office.

Several interactions at work during Rachwalski's first few months at the office are relevant to this appeal. Shortly after Rachwalski started, another agent told her that she was not selected for a different unit because that unit's squad members did not want a "big butch lesbian cop" telling them how to run investigations. And Rachwalski's supervisor, Supervisory Special Agent (SSA) Charles O'Neal, interacted with her in ways that made her uncomfortable: He asked about her relationship status and told her that the Indianapolis office was a terrible place to meet a husband; he asked if he could stop by her apartment to sign paperwork and to drop off equipment; and he sent her text messages to socialize during non-work and weekend hours. O'Neal retired in September 2020, and SSA Erin LaBuz eventually replaced O'Neal as Rachwalski's supervisor.

A workplace injury and a new assignment took Rachwalski out of the Special Operations Group entirely starting in late 2020. During a firearms training, Rachwalski injured her shoulder; following surgery in early 2021, she was placed on telework status. And in spring 2021, she was reassigned to the Complex Financial Crimes unit under the supervision of SSA Spencer Brooks. Rachwalski returned to in-person duty in June 2021, and Victoria Madtson was assigned as her training agent. Workplace attire was a subject of conversation, and sometimes conflict, between Rachwalski and her superiors Madtson and Brooks. At one point, Madtson told

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Rachwalski that she should consider wearing a low-cut blouse that showed cleavage to curry favor with an older male Assistant United States Attorney. Madtson also told Brooks that she thought it was inappropriate that Rachwalski wore tennis shoes and ball caps in the office. Brooks agreed and asked Madtson to talk to Rachwalski about her casual work attire. Madtson did, and she reported to Brooks that it did not go well. Thereafter, Rachwalski emailed Brooks to request a copy of the dress code and to ask that, going forward, he address any issues with her in person. Brooks met with Rachwalski the next day to let her know that the email was out of line, but that he would let it go.

Management further disciplined Rachwalski for purportedly disclosing confidential and derogatory information about an FBI applicant. On August 28, 2021, Rachwalski attended a social gathering, where she encountered an applicant she had interviewed in 2020. During and after the gathering, Rachwalski told at least three current agents (including LaBuz) and a retired agent about confidential and personally damaging information that the applicant had relayed during the interview. LaBuz then informed Brooks that Rachwalski had disclosed the information to her, and LaBuz and Brooks brought the matter to the field office's executive management. Management responded by asking Brooks to log Rachwalski's conduct. Brooks complied and created a document that noted Rachwalski's emotional immaturity and lack of judgment in failing to keep the information confidential. The document also stated that Rachwalski failed to respond professionally to concerns about her attire and that she had not met probationary suitability standards. On September 13, 2021, Brooks told Rachwalski that management asked him to document the confidential-information-disclosure incident, which would then be forwarded to FBI headquarters for consideration regarding her continued employment.

At management's direction, Brooks also prepared a ten-page termination report, titled "Removal of Probationary Employee for Lack of Suitability," detailing Rachwalski's performance issues. The report stated that management did not have trust in Rachwalski's ability to serve as a special agent. It highlighted Rachwalski's "lack of judgment, specifically regarding her carelessness sharing personal interview information to others in the office, and her failure to ask for assistance when appropriate and readily accept guidance when given." According to the report, Rachwalski "failed to change her attitude," "failed to maintain confidential information on multiple occasions," and was "resistant to guidance." The report noted multiple occasions where Rachwalski refused to accept feedback from supervisors, including her sharp response to the feedback about her attire; she took "a minor correction … and

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turned it into a significant issue." And it explained that, more than once, Rachwalski

"failed to use good judgment" when interacting with other agencies, including by making agency personnel feel that the FBI was "better than the people at the other agency."

On October 8, 2021, management told Rachwalski that she had not passed her probationary period. She was offered the chance to resign rather than face termination, and she took it.

After first proceeding under the FBI's internal Equal Employment Opportunity processes, Rachwalski filed this suit on November 29, 2023. She alleged, as relevant here, that the FBI constructively discharged her and subjected her to a hostile work environment on the basis of her sex, in violation of Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-2(a)(1).¹

The district court granted the defendants' motion for summary judgment. Concerning Rachwalski's sex discrimination claim, the court determined that any claims arising from actions that occurred before September 3, 2021 (that is, actions that took place 45 days before she initiated EEO contact on October 18, 2021, see 29 C.F.R. § 1614.105) were time barred. Accordingly, the court reasoned, Rachwalski's hostile- work-environment claim failed because the evidence concerning her interactions with O'Neal was untimely and bore no relation to any employment actions that occurred after O'Neal was replaced as Rachwalski's supervisor. And, the court continued, Rachwalski failed to establish a prima facie case of discrimination concerning her constructive discharge claim because she failed to meet the FBI's legitimate expectations.

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II

We review de novo the district court's grant of summary judgment. Sinha v. Bradley Univ., 995 F.3d 568, 573 (7th Cir. 2021). Summary judgment is appropriate where

"there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." F ED. R. CIV. P. 56(a).

A

On appeal, Rachwalski first asserts that there was a triable issue of fact as to whether she was constructively discharged because of her sex. She argues that the district court did not fully analyze or address her claim of constructive discharge, because there was "virtually no discussion or examination of the evidence." She also contends that the court applied the wrong legal test for constructive discharge because it determined only that she failed to show that working conditions made her situation unbearable. In Rachwalski's view, the court should have considered that constructive discharge can also occur when "the handwriting was on the wall and the axe was about to fall." See Fischer v. Avanade, Inc., 519 F.3d 393, 408-09 (7th Cir. 2008) (citation modified). She asserts that a jury could find that she was constructively discharged because of her sex because there was an "inherent 'fishiness'" in the FBI's proffered reason for firing her. See Coleman v. Donahoe, 667 F.3d 835, 855 (7th Cir. 2012). Specifically, she states that there was no meaningful investigation of the confidential- information-disclosure incident and that there was a rush to force her into resigning. In discrimination cases under Title VII, "when a defendant moves for summary judgment, the singular question for the district court is whether the plaintiff has introduced evidence that would permit a reasonable factfinder to conclude that the plaintiff's … sex … caused the discharge or other adverse employment action." Igasaki

v. Ill. Dep't of Fin. & Pro. Regul., 988 F.3d 948, 957 (7th Cir. 2021) (citation modified). All evidence of discrimination, whether direct or circumstantial, "belongs in a single pile and must be evaluated as a whole." Ortiz v. Werner Enters., Inc., 834 F.3d 760, 766 (7th Cir. 2016).

One way of establishing employment discrimination under this holistic approach is through the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the plaintiff must "make a prima facie case of discrimination, at which point the burden shifts to the employer to offer a nondiscriminatory motive, and, if the employer does so, the burden shifts back to the

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plaintiff to show that the employer's stated reason was a pretext." Igasaki, 988 F.3d at 957 (citation modified). To establish a prima facie case of discrimination, the plaintiff must show: (1) she belongs to a protected class; (2) she met her employer's legitimate expectations; (3) she suffered an adverse employment action; and (4) another similarly situated employee outside of her protected class received better treatment from her employer. Id.

Rachwalski's argument that she was constructively discharged because of her sex²fails to make it out of the gate because she cannot make out a prima facie case of sex discrimination. She did not meet the FBI's legitimate performance expectations as detailed in the ten-page termination report prepared by Brooks. The report comprehensively details Rachwalski's performance issues, which extended far beyond the confidential-information-disclosure incident that Rachwalski contends was wrongly handled. It states that Rachwalski showed poor judgment on multiple occasions in interacting with other agencies, refused to accept feedback from her supervisors, and failed to act professionally. These deficiencies, especially considering Rachwalski's probationary status, constitute reasonable and nondiscriminatory grounds for her discharge.

Even if we were to assume that Rachwalski could make out a prima facie case of sex discrimination, and we examine whether the termination report was pretext for sex discrimination, Rachwalski fails to show that the real reason for her discharge was sex. She argues that the timing of her discharge was "fishy" because it came after a "rush to judgment" following the confidential-information-disclosure incident. But the timing was not fishy at all. She was discharged more than a month after the incident and, more importantly, close to the end of her two-year probationary period. And although Rachwalski put forward evidence of uncomfortable and/or sexist comments and behavior by agents superior to her (including O'Neal and Madtson), her interactions with O'Neal ceased long before her discharge—O'Neal retired in September 2020, more than a year before her discharge—and there is no evidence that his actions or Madtson's

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comment about showing cleavage played any role in her termination. Indeed, the record shows that the decisionmakers in her discharge (executive management) were neither aware of nor engaged in any such behavior. All the evidence supports the conclusion that the FBI discharged her for consistently failing to meet probationary standards.

B

Rachwalski also argues that she established a triable issue of fact that she was subjected to a hostile work environment. She asserts that the district court failed to consider all relevant evidence by concluding that any evidence concerning O'Neal was time barred and severed from her timely claims.

To establish a hostile work environment under Title VII, Rachwalski needed to present evidence that the workplace was "permeated with discriminatory intimidation, ridicule, and insult, that [was] sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment." Scaife v. U.S. Dep't of Veterans Affs., 49 F.4th 1109, 1115 (7th Cir. 2022) (citation modified). Specifically, Rachwalski must show that (1) the environment was both subjectively and objectively offensive; (2) the harassment occurred because she was a member of a protected class;

(3) the conduct was severe or pervasive; and (4) there is a basis for employer liability. Alexander v. Casino Queen, Inc., 739 F.3d 972, 982 (7th Cir. 2014). Evidence must be considered holistically, "keeping in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created thereby may exceed the sum of the individual episodes."

Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993). But because the acts undergirding Rachwalski's hostile-work-environment claim took place entirely outside the limitations period, the claim is untimely. Federal regulations provide that "[a]n aggrieved person must initiate [EEO] contact … within 45 days of the date of the matter alleged to be discriminatory." 29 C.F.R. § 1614.105(a)(1). Claims concerning discriminatory acts that occurred more than 45 days before EEO contact are therefore untimely, and Rachwalski concedes that she did not timely initiate EEO contact regarding O'Neal's actions. True, acts that fall outside of the relevant period may be considered so long as at least one of the discriminatory acts occurred within the time frame. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117-18 (2002). But the only cognizable evidence that Rachwalski presents concerning a hostile work environment on the basis of her sex is her interaction with O'Neal. She contends that she

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faced "repeated attacks" from Brooks concerning her shoulder injury and that her discharge was "premised on an unstated basis and undisclosed allegations," but these actions cannot plausibly be construed as harassment that occurred because of her sex. It follows that any actions undergirding Rachwalski's hostile-work-environment claim ceased—at the latest—in September 2020 when O'Neal retired, a year before Rachwalski initiated EEO contact.

AFFIRMED

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