Tamica J. Smithson v. LLOYD J. AUSTIN III, United States Secretary of Defense

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 18, 2023*
Decided September 25, 2023
Before
DIANE P. WOOD, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-1306
TAMICA J. SMITHSON,
Plaintiff-Appellant,
v.
LLOYD J. AUSTIN III, United States
Secretary of Defense,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:21-cv-02193-JRS-MJD
James R. Sweeney II,
Judge.
O R D E R
Tamica Smithson, an African American teacher with the United States
Department of Defense, appeals the summary judgment rejecting her claims of
discrimination, retaliation, and a hostile work environment under Title VII of the Civil
* 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NONPRECEDENTIAL DISPOSITION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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No. 23-1306 Page 2
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et
seq. We affirm.
Smithson teaches at the Department of Defense Education Activity, which
provides schooling for children of military families. She has several medical conditions,
including attention-deficit hyperactivity disorder, intracranial hypertension, and
migraines.
As relevant to this appeal, Smithson points to three incidents in which she
maintains that coworkers touched her without consent. First, in 2019, a coworker
approached her from behind her desk while she was teaching and then leaned a hip
against her shoulder. Second, in 2020, another coworker hugged her—an act that she
considered to be an assault and harassment. Third, in 2022, a male coworker, while
complimenting her on her blouse, touched the fabric at her wrist. Smithson later
testified that she believed each of these incidents was motivated by her race and
disability, as well as retaliation for grievances and complaints she had filed in the past
relating to discrimination and reasonable accommodation.
Smithson also complains of developments that occurred in August 2021, soon
after she had been reassigned to teach at the Department’s virtual school. Early in the
school year, she was removed from her former school’s email distribution list, allegedly
causing her to miss important communications. Additionally, her government-issued
computer at the former school was given to another teacher. And she was not provided
with key-fob access to the former school, as had been customary for those teaching
virtually during the COVID-19 pandemic. Each of the issues appears to have been
resolved within a week or two (even if the key-fob issue was not resolved entirely to
Smithson’s satisfaction), but Smithson maintains that two of her white, male colleagues
assigned to the former school were not subjected to such treatment.
The district court granted the Department’s motion for summary judgment,
concluding that Smithson had not offered evidence sufficient for a jury to conclude that
she had been subjected to objectively severe or pervasive harassment or that the
complained-of conduct was attributable to any of her protected characteristics or
activities. The court also concluded that Smithson did not adduce sufficient evidence to
infer that she had been subjected to an adverse employment action.

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No. 23-1306 Page 3
We review the district court’s summary judgment determination de novo,
viewing all facts and reasonable inferences in the light most favorable to Smithson.
See Wince v. CBRE, Inc., 66 F.4th 1033, 1040 (7th Cir. 2023).
Smithson first challenges the district court’s ruling on her claim of hostile work
environment, asserting that she offered sufficient evidence to show that “performance
of her job was made more difficult when compared to her colleagues.” But to succeed
on a claim for discrimination based on a hostile environment, a plaintiff must
demonstrate that the harassment was severe or pervasive to a degree that interfered
with her work performance, see Brooks v. Avancez, 39 F.4th 424, 441 (7th Cir. 2022), and
the actions cited by Smithson do not rise to this level.
Smithson next argues that the district court overlooked evidence of disability
discrimination and retaliation from fall 2021. She highlights the testimony from her
former school principal that she was supposed to remain on the email distribution list
after her reassignment to the virtual school. Smithson believes that her disabilities and
prior complaints prompted her removal from this list.
But speculation about her colleagues’ ill motives is too conclusory to create an
issue of material fact. See Johnson v. Advoc. Health & Hosp. Corp., 892 F.3d 887, 899
(7th Cir. 2018). In any case, the cited actions (her removal from the distribution list, the
loss of her government-issued computer, and the lack of key-fob access to her former
school) do not suggest that she suffered an adverse employment action, which is an
element of a discrimination and retaliation claim under Title VII. See Kinney v. St. Mary’s
Health, Inc., 76 F.4th 635, 648 (7th Cir. 2023) (Title VII retaliation); Chatman v. Bd. of Ed. of
City of Chicago, 5 F.4th 738, 746 (7th Cir. 2021) (Title VII discrimination). An employment
action is adverse only if it materially changes the terms and conditions of employment
in a manner that reduces compensation or benefits, inhibits career advancement, or is
otherwise “more disruptive than a mere inconvenience or an alteration of job
responsibilities.” Alamo v. Bliss, 864 F.3d 541, 552 (7th Cir. 2017). Smithson has not
explained how the actions she identifies were anything more than mere inconveniences.
Even if we assume that her ability to perform her job was compromised by the
identified actions (coupled with her alleged disabilities), Smithson’s evidence does not
suggest that the defendants sought to exploit her particular circumstances.
Cf. Washington v. Ill. Dep’t of Revenue, 420 F.3d 658, 662 (7th Cir. 2005) (removing
employee from flex-time schedule that she used to care for disabled son was adverse
employment action).
AFFIRMED

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