Nikkolai Anderson v. Mott Street

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2765
NIKKOLAI A NDERSON ,
Plaintiff-Appellant,
v.
M OTT S TREET,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 20-cv-7721 — Thomas M. Durkin, Judge.
____________________
A RGUED M AY 21, 2024 — DECIDED J UNE 13, 2024
____________________
Before SCUDDER , ST. EVE, and K IRSCH , Circuit Judges.
ST. EVE, Circuit Judge. After Nikkolai Anderson was termi-
nated from her job as a restaurant host, she sued her em-
ployer, Mott Street, for sexual harassment, discrimination,
and retaliation. Because Anderson has not established a tria-
ble issue of material fact as to these claims, the district court
correctly granted summary judgment to Mott Street. We af-
firm.

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2 No. 23-2765
I. Background
Mott Street, an Asian-American restaurant in Chicago, Il-
linois, employed Nikkolai Anderson as a host from Septem-
ber 2015 until her termination in September 2017. Sub-par
performance and inappropriate behavior permeated Ander-
son’s Mott Street tenure. The owners of Mott Street, especially
co-owner and general manager Nate Chung, observed that
Anderson was impatient with guests, gave curt responses,
avoided eye contact, and answered the phone without an ap-
propriate greeting on numerous occasions. In fact, at least
once a month, Anderson had a negative interaction with a
guest that escalated to the point that Chung would have to
intervene. Co-owner, CEO, and executive chef Edward Kim
also noted Anderson’s unprofessional behavior. The two
other co-owners, Victoria and Jennifer Kim, similarly experi-
enced Anderson’s negative attitude and rudeness, which they
reported to Chung and Edward Kim.
Customers noticed Anderson’s attitude, too. Mott Street
received three negative Yelp reviews related to customer vis-
its on November 6 and 13, 2016, all complaining about a rude,
unfriendly host. Concerned about the impact negative re-
views would have on Mott Street’s business, Chung reviewed
the staffing schedule and determined that Anderson was the
only host working those days. Chung and bar manager Mike
Melazzo met with all hosts, including Anderson, to empha-
size Mott Street’s expectation of a friendly and welcoming de-
meanor. This training session apparently did nothing to cor-
rect Anderson’s behavior. In the summer of 2017, Mott Street
received four additional negative Yelp reviews about a rude
host. Again, Chung reviewed the schedule and found that An-
derson hosted on each day of those interactions.

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No. 23-2765 3
Anderson did not comply with other Mott Street rules. She
refused to properly notify Mott Street of her scheduling avail-
ability and preferences, stored personal items in the host
stand, and used personal electronic devices in front of guests.
On one occasion, Chung asked Anderson to leave work for
the day when she used an iPad for personal reasons while
working.
On August 26, 2017, Anderson sent Lola Olateju, recently
promoted to front-of-house manager, an email labeled “Con-
fidential.” In that email, she complained about not receiving
the shifts or the position—server assistant—she preferred.
Anderson also expressed frustration at feeling singled out for
criticism and disrespect. She mentioned gender twice
throughout the email: once to complain that “men at Mott
St[reet] do and say very inappropriate things,” and once to
assert that the environment is “degrading for women.” But
the email did not connect Anderson’s gender to the criticism
she felt she received. To the contrary, Anderson complained
that Mott Street singled her out as an individual, treating her
worse than other women at Mott Street.
Then, on September 20, 2017, Olateju sent Chung an
eighth negative customer review concerning a host at Mott
Street. Again, Chung determined that Anderson hosted on the
date of that customer’s visit. At that time, Chung decided to
fire Anderson due to her negative interactions with all four
owners, her repeated failure to comply with Mott Street rules,
and the negative guest reviews. He informed Anderson of her
termination on September 22, 2017. That same day (the record
is unclear whether it was before or after Chung terminated
Anderson), Anderson sent Olateju another email, again
marked confidential, complaining that men at Mott Street

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4 No. 23-2765
“say and do inappropriate things that I find to be very uncom-
fortable” and specifically complaining about gender discrim-
ination and sexual harassment.
After her termination, Anderson sued Mott Street alleging
sexual harassment, sex discrimination, and retaliation under
Title VII of the Civil Rights Act of 1964, as well as intentional
infliction of emotional distress under Illinois state law. Mott
Street later moved for summary judgment and submitted an
accompanying Statement of Material Facts in compliance
with the district court’s local rules. See N.D. Ill. L.R. 56.1. An-
derson submitted a Response to that Statement of Material
Facts but did not submit her own statement of facts.
Anderson relied on her own deposition testimony and the
two emails she sent to Olateju to support her argument that
she experienced unwelcome behavior at Mott Street due to
her gender. Patrons touched her inappropriately “a lot,” and
a coworker grabbed her butt once and hugged her inappro-
priately two or three times. Melazzo called her a “bitch,” and
Chung told her to wear tight, form-fitting clothing because it
looked better on her.
The district court granted summary judgment for Mott
Street on all counts, finding Anderson’s claim for intentional
infliction of emotional distress barred by the statute of limita-
tions and concluding she had not raised triable issues of fact
as to her Title VII allegations. Anderson appealed the district
court’s decision as to her Title VII claims.1
1 Anderson also argues that the district court abused its discretion by
finding her in violation of Local Rule 56.1 and deeming admitted certain
facts in Mott Street’s Statement of Material Facts. Though the district court

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No. 23-2765 5
II. Analysis
We review the district court’s decision to grant summary
judgment de novo, viewing the facts in the light most favora-
ble to Anderson. Brooks v. Avancez, 39 F.4th 424, 433 (7th Cir.
2022). If there is a “genuine dispute as to any material fact,”
summary judgment is not appropriate. See Fed. R. Civ. P.
56(a). But generalized and unsupported allegations cannot
create a genuine dispute. See United Ass’n of Black Landscapers
v. City of Milwaukee, 916 F.2d 1261, 1264–65 (7th Cir. 1990); see
also Tyburski v. City of Chicago, 964 F.3d 590, 597 (7th Cir. 2020)
(“[T]he moving party may succeed by showing an absence of
evidence to support the non-moving party’s claims.”) (quot-
ing Parkey v. Sample, 623 F.3d 1163, 1165 (7th Cir. 2010)).
A. Sexual Harassment
Anderson claims that Mott Street is liable for creating a
hostile work environment involving sexual harassment. See
42 U.S.C. § 2000e-2(a)(1); see also E.E.O.C. v. Costco Wholesale
Corp., 903 F.3d 618, 624 (7th Cir. 2018). An employer violates
Title VII when a plaintiff can establish that: “(1) her work en-
vironment was objectively and subjectively offensive, (2) the
harassment she complained of was based on her gender,
(3) the conduct was so severe or pervasive as to alter the con-
ditions of employment and create a hostile or abusive work-
ing environment, and (4) there is a basis for employer liabil-
ity.” Swyear v. Fare Foods Corp., 911 F.3d 874, 880 (7th Cir. 2018)
acknowledged that it should disregard facts not properly presented under
Rule 56.1, it found any purported violation immaterial because, even con-
sidering all of Anderson’s facts, summary judgment was still warranted.
Because the district court did not ultimately penalize Anderson, we need
not decide whether it would have erred in doing so.

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6 No. 23-2765
(citing Johnson v. Advoc. Health & Hosps. Corp., 892 F.3d 887,
900 (7th Cir. 2018)).
Even construing all material facts in Anderson’s favor, we
find no triable issue of fact on the third element—that the con-
duct was so severe or pervasive as to alter the conditions of
employment. See Passananti v. Cook County, 689 F.3d 655, 667
(7th Cir. 2012). To determine whether harassment is severe or
pervasive, we consider factors such as “the severity of the al-
legedly discriminatory conduct, its frequency, whether it was
physically threatening or humiliating or merely offensive,
and whether it unreasonably interfered with the employee’s
work performance.” Id.
Anderson points to evidence in her deposition that a
coworker touched her inappropriately three or four times,
that Melazzo called her a “bitch,” and that Chung directed her
to wear tight, form-fitting clothing.2 Lacking here is frequency
and severity. These isolated incidents are not “so severe or
pervasive … as to affect the terms and conditions of employ-
ment.” Swyear, 911 F.3d at 881 (quoting Johnson, 892 F.3d at
901). While unfortunate, such “off-color comments, isolated
incidents, teasing, and other unpleasantries” are not enough
for a Title VII sexual harassment claim. Id. (citing Passananti,
689 F.3d at 667). Nor does Anderson put forward any evi-
dence that these incidents interfered with her ability to do her
job.
2 Anderson also claims that patrons touched her inappropriately. But
without any indication that Mott Street recklessly permitted this behavior,
it is not liable for the actions of its customers. See Costco, 903 F.3d at 627.

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No. 23-2765 7
Because Anderson cannot show that the conduct was se-
vere or pervasive, the district court properly granted sum-
mary judgment in favor of Mott Street.
B. Sex Discrimination
Anderson also claims Mott Street violated Title VII by dis-
criminating against her on the basis of sex. See § 2000e-2(a)(1).
She relies on the McDonnell Douglas burden-shifting frame-
work, one method of proving employment discrimination un-
der Title VII. See Logan v. City of Chicago, 4 F.4th 529, 536 (7th
Cir. 2021); see also McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). Under that test, to survive a motion for sum-
mary judgment, Anderson must make out the four elements
of a prima facie case: (1) that she is a member of a protected
class; (2) that she performed her job to her employer’s expec-
tations; (3) that she suffered an adverse employment action;
and (4) that one or more similarly situated individuals outside
her protected class received better treatment. Smith v. Chi.
Transit Auth., 806 F.3d 900, 905 (7th Cir. 2015). Regardless of
the framework, we ultimately consider all admissible evi-
dence as a whole “and determine whether a reasonable jury
could find that the plaintiff suffered an adverse action because
of [her] protected characteristics.” Singmuongthong v. Bowen,
77 F.4th 503, 508 (7th Cir. 2023) (citing Tyburski v. City of Chi-
cago, 964 F.3d 590, 598 (7th Cir. 2020)).
If Anderson can identify a “similarly-situated individual[]
of a different protected characteristic [who is] treated differ-
ently,” or a proper comparator, “and the employer’s alleged
reason for the differential treatment is pretextual,” the evi-
dence supports an inference of discrimination. Sing-
muongthong, 77 F.4th at 509. Comparators “must be directly
comparable to the plaintiff in all material respects, but they

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8 No. 23-2765
need not be identical in every conceivable way.” Coleman v.
Donahoe, 667 F.3d 835, 846 (7th Cir. 2012) (cleaned up). “In the
usual case a plaintiff must at least show that the comparators
(1) ‘dealt with the same supervisor,’ (2) ‘were subject to the
same standards,’ and (3) ‘engaged in similar conduct without
such differentiating or mitigating circumstances that would
distinguish their conduct or the employer’s treatment of
them.’” Id. at 847 (quoting Gates v. Caterpillar, Inc., 513 F.3d
680, 690 (7th Cir. 2008)).
Anderson points to Simon DuFour, a male server at Mott
Street, asserting that customers similarly complained about
him, but that Mott Street never reprimanded or terminated
him. In support of this contention, she cites only her own dep-
osition testimony that customers complained to her more
than once about DuFour. Importantly, Anderson does not
present evidence or even allege that management knew about
these customer complaints. She also provides no evidence
that DuFour was comparable to her in all or most respects:
there is no evidence that he was insubordinate, nor did cus-
tomers write negative public reviews about Mott Street due to
DuFour’s behavior. See id. (noting factual dissimilarities that
render comparators improper). Because DuFour is not simi-
larly situated and there is no evidence that Mott Street was
aware of complaints about him, he is not a satisfactory com-
parator.
Even if Anderson could make out a prima facie case for
discrimination under the McDonnell Douglas framework, she
cannot rebut Mott Street’s legitimate reason for firing her.
Once the employer “articulate[s] a legitimate, nondiscrimina-
tory reason for the adverse employment decision,” the plain-
tiff must “provide evidence establishing a genuine dispute

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No. 23-2765 9
about whether the employer’s stated reason was a pretext for
prohibited discrimination.” Smith, 806 F.3d at 905.
Mott Street identified legitimate, nondiscriminatory rea-
sons for the termination. Chung, with input from Edward
Kim, ultimately decided to terminate Anderson based on his
and other owners’ interactions with her, repeated negative
guest reviews, and her failure to comply with restaurant rules
and procedures.
Anderson now must show that the reasons for firing were
pretextual, covering up for a discriminatory reason. That bur-
den requires demonstration by a preponderance of the evi-
dence that the stated reasons for her firing were false, not that
they were unfair or baseless. Brooks, 39 F.4th at 435–36. Ander-
son cannot meet this burden. Her belief that she was perform-
ing satisfactorily does not create a material issue of fact for a
jury to consider. See Lauth v. Covance, Inc., 863 F.3d 708, 715–
16 (7th Cir. 2017). That no one wrote her up or confronted her
with the online reviews does not demonstrate that Mott
Street’s reasons for firing her were pretexts. Mott Street’s em-
ployee handbook does not require progressive discipline, and
it warns that even first-time violations may subject the em-
ployee to termination. See Fane v. Locke Reynolds, LLP, 480 F.3d
534, 541 (7th Cir. 2007) (“[N]o reasonable jury could conclude
that the firm’s failure to follow progressive discipline proce-
dures suggested discrimination. Fane offers no evidence that
the progressive discipline policy was rigorously enforced,
and the policy warns that ‘some situations may be so serious
as to warrant immediate discharge.’”).
Nor does the fact that she received a formal or informal
promotion to “head host” satisfy Anderson’s burden. On its
own, past performance does not call into question the

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10 No. 23-2765
legitimacy of Mott Street’s reason for firing her or create an
inference of discriminatory intent. See Igasaki v. Ill. Dep’t of Fin.
& Pro. Regul., 988 F.3d 948, 959 (7th Cir. 2021). In short, she
has identified no facts giving rise to a reasonable inference
that the stated reasons for her firing were false, or that some
other reason for firing her existed.
Because she cannot identify an appropriate comparator
nor raise a triable issue of fact as to Mott Street’s stated rea-
sons for firing her, Anderson may not proceed to trial. View-
ing the evidence as a whole, no reasonable jury could find that
Anderson’s termination was an act of sex discrimination.
C. Retaliation
Lastly, Anderson contests the district court’s grant of sum-
mary judgment on her retaliation claim. Title VII “prohibits
employers from discriminating against an employee ‘because
he has opposed any practice made an unlawful employment
practice by this subchapter.’” Id. (quoting 42 U.S.C. § 2000e-
3(a)). Anderson asserts that she complained about sexual har-
assment and Mott Street fired her for it.
“To prevail on a Title VII retaliation claim, the plaintiff
must prove that (1) she engaged in an activity protected by
the statute; (2) she suffered an adverse employment action;
and (3) there is a causal link between the protected activity
and the adverse action.” Giese v. City of Kankakee, 71 F.4th 582,
590 (7th Cir. 2023) (cleaned up). “When the plaintiff estab-
lishes a prima facie case of retaliation, an employer may pro-
duce evidence which, if taken as true, would permit the con-
clusion that it had a legitimate non-discriminatory reason for
taking the adverse employment action.” Robertson v. Wis.
Dep’t of Health Servs., 949 F.3d 371, 378 (7th Cir. 2020). If Mott

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No. 23-2765 11
Street can meet this burden, Anderson must show that its rea-
sons for termination were pretextual. See id. When evaluating
pretext, we focus on whether Mott Street honestly believed
the stated reason for firing. Id.
The parties do not dispute that Anderson suffered an ad-
verse employment action when Mott Street fired her on Sep-
tember 22, 2017. But even if Anderson can show a protected
activity, she cannot show a causal connection between that act
and her firing, nor is she able to produce evidence showing
that Mott Street’s stated reason for firing her was pretextual.
Anderson relies on her August 26 and September 22 emails
to Olateju as protected activity.3 Only her September 22 email
comes close to being protected. The August 26 email’s gender
references are too general and unconnected to her complaints
to rise to the level of protected activity. See McHale v.
McDonough, 41 F.4th 866, 872 (7th Cir. 2022). Anderson admit-
ted as much in her deposition, acknowledging that “there was
nothing specific as far as ‘sexual harassment’ or ‘discrimina-
tion’ in the August 26th email.”
Even assuming Anderson’s September 22 email was a pro-
tected act, we find no causal connection between it and her
firing. The decisionmaker—Nate Chung—must be aware of
the protected activity to establish a causal connection. See
3 For the first time on appeal, Anderson also claims that she engaged
in protected activity by complaining verbally to Olateju. By not presenting
this argument to the district court and not citing evidence to substantiate
the claim, she has waived it. Homoky v. Ogden, 816 F.3d 448, 455 (7th Cir.
2016) (noting that a party waives arguments not presented to the district
court); see also Greenbank v. Great Am. Assurance Co., 47 F.4th 618, 629 (7th
Cir. 2022) (noting that a party waives undeveloped arguments).

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12 No. 23-2765
Cervantes v. Ardagh Grp., 914 F.3d 560, 566 (7th Cir. 2019). But
Anderson sent the email to Olateju, not Chung, and Olateju
did not show Chung the email until two days after Ander-
son’s termination. Anderson identifies no evidence suggest-
ing Chung was aware of this email any earlier or that Olateju
was the driving force behind her termination.
* * *
Even if a causal connection had existed, for the reasons
stated above, Anderson has not shown that Mott Street’s rea-
sons for firing her were pretextual. The district court properly
granted summary judgment on her retaliation claim.
III. Conclusion
For these reasons, the judgment of the district court is
AFFIRMED.

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