Fiona Feng Chen v. JANET YELLEN, Secretary of the Treasury

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 13, 2023 *
Decided April 17, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21-3110
FIONA FENG CHEN,
Plaintiff-Appellant,
v.
JANET YELLEN,
Secretary of the Treasury,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Western Division.
No. 3:14-cv-50164
Iain D. Johnston,
Judge.
O R D E R
Fiona Chen, a former employee of the Internal Revenue Service, sued the
Secretary of the Treasury under Title VII of the Civil Rights Act of 1964, alleging that
her supervisors subjected her to a hostile work environment on the basis of her race and
* We have agreed to decide this 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NONPRECEDENTIAL DISPOSITION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 FED. R. A PP. P. 32.1

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No. 21-3110 Page 2
national origin and retaliated against her when she complained. The district court
entered summary judgment in favor of the Secretary. We affirm.
Chen, an Asian woman originally from Taiwan, worked for the IRS in Chicago
between 2002 and 2008. Her claims center on her experiences after she joined a group
managed by Rebecca Solano in 2006. In February 2007, in an annual review, Solano
rated Chen’s performance as “outstanding,” giving her a 4.8 on a 5-point scale and a
positive narrative evaluation. By March, however, Chen says Solano’s tone had
changed. Chen, who was the only Asian employee in the group, alleges that during a
meeting regarding employee evaluations, Solano directed aggressive comments and
body language toward Chen when describing how and when an employee’s job would
be terminated. Chen filed a grievance with the National Treasury Employees Union, but
after interviewing other meeting attendees Solano’s supervisor concluded that the
grievance could not be substantiated. Around the same time, Chen requested a
replacement for a defective computer, which she alleges Solano failed to procure.
When Chen transferred to another division later that year—to escape Solano, she
says—Solano conducted a departure evaluation to document Chen’s performance.
Solano gave Chen the same high numerical score as in the prior evaluation, but in the
narrative component explained that Chen had made numerous procedural errors that
caused Solano extra work. For example, on one occasion a taxpayer complained about
Chen’s professionalism, and on another Chen’s spelling and grammar errors in a report
were so substantial that Solano needed to re-write the report.
Chen’s relationship with her new supervisor, Jamy Kilmnick, also soured.
Kilmnick completed Chen’s mid-year review by relying on Solano’s departure
evaluation. Despite Chen’s protests, the union contract required this step because
Kilmnick had not supervised Chen long enough to perform a new evaluation. Chen also
complained that she was asked to finish certain cases for Solano, a request Chen
believes was intended to harass her. Further, Chen says Kilmnick subjected her to more
frequent case-file reviews than non-Asian employees and laughed at her during a
phone call about her work schedule.
In October 2007, Chen filed an administrative complaint with the IRS’s Equal
Employment Opportunity (EEO) office about Solano’s departure rating and other
management issues. That same month, Chen told her union representative that she had
conducted background checks on Kilmnick and his supervisor, that the two were linked
to the same physical address, and that she believed they were engaged in an affair. The
following month, Kilmnick learned of Chen’s actions from the union representative and

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filed a complaint with the Inspector General for Tax Administration, citing concerns for
his personal safety because an employee was inappropriately investigating him. An
agent at the Inspector General’s office gathered information related to Kilmnick’s
complaint and, without conducting a full investigation, referred it to the IRS Employee
Conduct and Compliance Office. Chen resigned from the IRS in 2008.
In 2014, after the EEO complaint was resolved in the IRS’s favor, Chen sued the
Secretary of the Treasury in federal court. She alleged that she had been subjected to a
hostile work environment based on her race and national origin and, when she
complained about her treatment, Kilmnick retaliated against her by filing the complaint
with the Inspector General. During discovery, Chen attempted to introduce the
testimony of an expert witness, Dr. Kyle Brink, who had published extensively on
workplace management. The district court granted the Secretary’s motion to bar
Dr. Brink’s testimony under Federal Rule of Evidence 702 because it was largely based
on Chen’s unsubstantiated allegations, not facts or data. After discovery, the court
entered judgment for the Secretary, finding that Chen had not established a prima facie
case for either claim because she failed to provide evidence that she experienced
harassment, that the alleged harassment was based on her race or national origin, or
that she experienced any adverse actions based on her EEO complaint. Chen now
appeals.
Summary judgment is appropriate where there are no genuine issues of material
fact, and the moving party is entitled to judgment as a matter of law. F ED. R. C IV. P.
56(a); Lesiv v. Ill. Cent. R.R. Co., 39 F.4th 903, 911 (7th Cir. 2022). We construe all
inferences in Chen’s favor, but she is “not entitled to the benefit of inferences that are
supported only by speculation or conjecture.” Boss v. Castro, 816 F.3d 910, 916 (7th Cir.
2016) (citation omitted).
We start with Chen’s hostile-work-environment claim. Chen first argues that the
district court used the wrong standard in granting the Secretary’s summary judgment
motion, pointing to the court’s order denying the Secretary’s motion to dismiss her
complaint. FED. R. C IV. P. 12(b)(6). Chen contends that the court confirmed 26 instances
of harassment in its denial of the Secretary’s motion to dismiss. But she is mistaken: the
court listed 26 instances of harassment that the parties agree that Chen alleged. It did not
find that those instances had occurred. Further, that Chen’s complaint survived
dismissal is not sufficient to demonstrate that she could satisfy her evidentiary burden
at summary judgment. Compare Kaminski v. Elite Staffing, Inc., 23 F.4th 774, 777 (7th Cir.
2022) (explaining that at pleading stage plaintiff need only “allege facts to allow for a

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plausible inference” that she suffered a hostile work environment based on protected
status), with Paschall v. Tube Processing Corp., 28 F.4th 805, 813–14 (7th Cir. 2022)
(explaining that to get past summary judgment plaintiff must provide evidence from
which a reasonable jury could reach the same conclusion).
Chen next argues that the court erred when it concluded that she failed to
demonstrate that the alleged harassment was based on her race or national origin. She
points to Solano’s departure evaluation, which she believes reflected cultural bias, and
her phone call with Kilmnick, insisting that he must have laughed at her because of her
accent. But Chen provides no evidence to support her speculation. Her subjective belief
that the complained-of conduct had a racial or national origin-related character or
purpose is insufficient to create a genuine issue of material fact. See Paschall, 28 F.4th
at 814. Moreover, Chen admitted in her deposition that she believed that Solano created
a hostile work environment for all employees. Chen asserts that she was affected more
severely by Solano’s overbearing style because she is an immigrant. But no evidence
suggests that Solano was aware of Chen’s immigration status, much less that her actions
were motivated by animus toward individuals born outside of the United States.
Even if Chen could demonstrate that her supervisors’ conduct was based on a
protected status, we agree with the district court that it was not so severe or pervasive
that it altered the conditions of her employment. Nothing in the record suggests that the
conduct created a workplace “permeated with discriminatory intimidation, ridicule,
and insult.” Abrego v. Wilkie, 907 F.3d 1004, 1015 (7th Cir. 2018) (citation omitted).
As to her retaliation claim, Chen argues that the court wrongly concluded that
she failed to provide evidence that Kilmnick’s complaint to the Inspector General
constituted an adverse employment action. An action is materially adverse when it
would dissuade a reasonable worker from making or supporting a charge of
discrimination. Boss, 816 F.3d at 918. Materially adverse actions include diminishing
financial terms of employment and subjecting an employee to “humiliating, degrading,
unsafe, unhealthful” or otherwise negative alterations in work environment. See Alamo
v. Bliss, 864 F.3d 541, 552 (7th Cir. 2017). But Chen has pointed to no evidence that
Kilmnick’s complaint affected her income or otherwise negatively changed any other
condition of her work. Indeed, Chen admitted in her deposition that she was not aware
of Kilmnick’s complaint to the Inspector General until after she resigned. She repeatedly
asserts that the complaint exposed her to criminal liability, but the investigation referral
form and the investigator’s deposition reveal that it did not. The informal investigation
focused solely on the propriety of Chen’s workplace conduct.

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Chen also argues that the court erred by concluding that Kilmnick’s complaint
was not causally linked to her EEO complaint. But Chen points to no evidence, as she
must, that links the two complaints. See Chatman v. Bd. of Educ. of Chi., 5 F.4th 738, 748
(7th Cir. 2021). Chen relies only on the timing between the complaints. But suspicious
timing is not enough to create a triable issue by itself. Igasaki v. Ill. Dep’t of Fin. & Pro.
Regul., 988 F.3d 948, 959, 960 (7th Cir. 2021). The court also properly declined to credit
Chen’s unsupported speculation that Kilmnick lied about his motivations for contacting
the Inspector General—that Chen’s investigation and allegations caused concern for his
safety and reputation—and Chen points to no evidence that his explanation was
pretextual. See id. at 959.
Chen also contends that the district court erred in excluding the expert testimony
of Dr. Brink. We disagree. The court thoroughly addressed the requirements of Federal
Rule of Evidence 702 and Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579 (1993), and
did not abuse its discretion in barring Dr. Brink’s testimony, see Kirk v. Clark Equip. Co.,
991 F.3d 865, 872 (7th Cir. 2021). Dr. Brink’s testimony was largely based on allegations
and not “sufficient facts or data.” FED. R. EVID. 702(b). Specifically, the court found that
Dr. Brink relied on the allegations in Chen’s original complaint filed in 2014—not the
operative complaint filed in 2018. In any event, allegations in a complaint are not
evidence, and “an anemic and one-sided set of facts casts significant doubt on the
soundness of [his] opinion.” Smith v. Ill. Dep’t of Transp., 936 F.3d 554, 558–59 (7th Cir.
2019).
We have reviewed Chen’s other arguments, and none has merit.
AFFIRMED.

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