Jason Smith v. City of Chicago

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 6, 2023*
Decided January 12, 2023
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-1734
JASON SMITH,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 18 C 8075
Gary Feinerman,
Judge.
O R D E R
Jason Smith sued the City of Chicago and three of his former colleagues, alleging
that they fired him because he complained of racial discrimination and then defamed
him. The district court entered summary judgment for the defendants. Because Smith
* This appeal is successive to case nos. 20-2556 and 21-1431 and is being decided
under Operating Procedure 6(b) by the same panel. We have agreed to decide the case
without oral argument because the briefs and record adequately present the facts and
legal arguments, and oral argument would not significantly aid the court. F ED. R. A PP .
P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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lacks evidence that the defendants knew about his protected activity or said anything
false about him, we affirm.
Smith worked as a probation officer for Cook County for over 15 years, and the
relationship was tumultuous. He accused the County several times of racial
discrimination, including in grievances he filed on behalf of his union and in a charge
he filed with the Illinois Department of Human Rights. A year and a half after filing that
charge, Smith accepted a job at the City of Chicago. At first, rather than tell the County
about his City job, he sought and received approval for an educational leave. But soon
after, according to Smith, he told his County boss that he was quitting and mailed a
resignation letter to the County. The County says it never received any notice of his
resignation. Smith later certified to the City that he did not have any other jobs.
While believing that Smith was still employed by the County on educational
leave, the County learned that Smith had another job. To show the City that Smith had
two jobs, the County sent Karlo Flowers, a City employee, Smith’s email requesting the
educational leave. Smith believes that, in this email, he referenced one of his prior
complaints of racial discrimination. He had written that another probation officer “was
granted a ten hour work shift despite the fabricated information created and submitted
to the Illinois Human Rights Commission … stating no probation officer has ever had a
ten hour work shift” and that a “directive [was] submitted from the Office of the Chief
Judge to remove the fabricated document inserted into [Smith’s] personnel file.”
Both employers fired Smith. The County fired him because, as far as it knew,
Smith had never resigned and was on a leave of absence. At the City, Flowers explained
to Sydney Roberts, the head of the police accountability office, that the County just fired
Smith for having two jobs. Roberts then fired Smith for the same reason.
Afterward, Smith applied to the Transportation Security Administration. It asked
James Murphy-Aguilu, Smith’s supervisor at the City, why Smith no longer worked
there. Murphy-Aguilu responded that “my understanding is [Smith] was terminated”
because “he had failed to disclose secondary employment, however, please refer to
Karlo Flowers if you need a more detailed description of the termination.”
Smith sued several defendants. In another appeal, we affirmed the district court’s
partial judgment in favor of County and union officials. See Smith v. Evans, et al.,
2022 WL 205414 (7th Cir. 2022). This appeal concerns Smith’s claims against the City,
Flowers, Roberts, and Murphy-Aguilu. Smith asserted that he was fired in retaliation

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No. 22-1734 Page 3
for the complaints of racial discrimination he made while he was at the County, in
violation of both Title VII of the Civil Rights Act of 1964 and the Illinois Civil Rights
Act. He also asserted that Murphy-Aguilu defamed him. The district court entered
summary judgment for the defendants, concluding that a jury could not find that they
knew about Smith’s protected activity or that Murphy-Aguilu defamed him.
Smith insists that summary judgment was improper. We begin with his claims of
retaliation under Title VII and the Illinois Civil Rights Act. In doing so, we acknowledge
that the Illinois Supreme Court has not clarified whether the latter Act covers retaliation
claims. Compare Ill. Native Am. Bar Ass’n v. Univ. of Ill., 856 N.E. 2d 460, 469
(Ill. App. 2006) (Hoffman, J., concurring) (“The [Illinois] Civil Rights Act … does not
grant a right of action to a person who experiences retaliation”), with Weiler v. Vill. of
Oak Lawn, 86 F. Supp. 3d 874, 889–90 (N.D. Ill. 2015) (“[A]n individual can bring a claim
for retaliation under ICRA.”). But we need not reach that question because Smith’s
retaliation claim would fail either way. The key inquiry is whether a jury could find that
the City fired Smith because of his protected activity. See Lesiv v. Ill. Cent. R.R. Co.,
39 F.4th 903, 911 (7th Cir. 2022). A jury could not do so here.
Smith maintains that Roberts, the decisionmaker at the City, fired him because he
had accused the County of racial discrimination. He contends that Roberts must have
learned about his protected activity from the email that the County sent to Flowers
(which references an Illinois human-rights agency) or from Murphy-Aguilu (who Smith
says knew about grievances that Smith filed for the union).
Smith’s claim fails at the outset because a reasonable jury could not conclude that
Roberts knew about his protected activity. The email was not sent to Roberts, she
swears that she had no knowledge of complaints that Smith made while at the County,
and Flowers testified that he did not understand the email to reference any complaint of
discrimination. Moreover, a jury could not disbelieve Flowers because Smith’s email
did not appear to refer to a complaint that Smith filed. Smith’s references—to the work
schedule of another employee, “fabricated information … submitted to the Illinois
Human Rights Commission,” and a document that was “inserted” into his personnel
file—all conveyed that another person filed a charge.
Likewise, a jury could not infer that Murphy-Aguilu told Roberts that Smith had
filed complaints of racial discrimination for his union. Murphy-Aguilu testified that he
knew Smith was in a union, not that he knew Smith had complained on behalf of the
union. In any case, no evidence suggests that Murphy-Aguilu spoke to anyone about

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Smith’s protected activity, and Smith’s speculation to the contrary cannot preclude
summary judgment. See Weaver v. Speedway, LLC, 28 F.4th 816, 820 (7th Cir. 2022).
Smith also contends that Roberts’s reason for firing him was pretextual. His
argument rests on his belief that the reason for his discharge (undisclosed secondary
employment) was incorrect because he had resigned from the County when he told the
City that he had no other jobs. But a jury could not infer that Roberts lied about
thinking that Smith had another job, even if that understanding turned out to be
inaccurate. See Robertson v. Dep't of Health Servs., 949 F.3d 371, 378 (7th Cir. 2020). Smith
needs evidence that Roberts did not believe her proffered reason, see id., and he lacks
any. The only thing that Roberts knew when she fired Smith was that the County had
just fired him for having two jobs; no one gave her any reason to think otherwise.
Smith’s defamation claim fares no better. Defamation under Illinois law requires
a false statement. Hadley v. Doe, 34 N.E.3d 549, 557 (Ill. 2015). And a jury could not find
that Murphy-Aguilu’s statement was untrue. He said that it was his understanding that
Smith was fired for having two jobs, not that Smith in fact had two jobs. Even if Smith
had resigned from the County, he lacks evidence suggesting that Murphy-Aguilu knew
this or believed that Smith was fired for a different reason than having a second job. In
any case, because the statement was made to an employer, it was conditionally
privileged under Illinois law. See Quinn v. Jewel Food Stores, Inc., 658 N.E.2d 1225, 1234
(Ill. App. 1995). This means that Smith must show that Murphy-Aguilu knew the
statement was false or recklessly disregarded whether it was false. See Coghlan v. Beck,
984 N.E.2d 132, 147 (Ill. App. 2013). Smith has not done so.
AFFIRMED

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