Kimberly Flanagan v. Office of the Chief Judge of the Circuit Court of Cook County, Illinois

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1927
KIMBERLY F LANAGAN,
Plaintiff-Appellant,
v.
OFFICE OF THE C HIEF J UDGE OF THE C IRCUIT
C OURT OF C OOK C OUNTY, ILLINOIS, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 8849 — Joan B. Gottschall, Judge.
____________________
A RGUED A PRIL 24, 2018 — D ECIDED J UNE 15, 2018
____________________
Before BAUER , EASTERBROOK , and KANNE , Circuit Judges.
P ER C URIAM. Kimberly Flanagan says that two coworkers
threatened her life because she previously had sued their
shared employer—the Cook County Adult Probation Depart-
ment—for discrimination and retaliation. She brought the
present action against the Department, asserting retaliation
under Title VII, 42 U.S.C. § 2000e-3(a), based on the hostile

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2 No. 16-1927
work environment engendered by that supposed murder at-
tempt. The district court entered summary judgment for the
defendants. Because the threat to Flanagan was too oblique
for a jury to conclude that she was subjected to severe or per-
vasive harassment, we affirm.
Flanagan is a probation officer with the Cook County
Adult Probation Department, which operates under the Chief
Judge of the Circuit Court of Cook County. She previously
sued the Office of the Chief Judge for discrimination and re-
taliation, and she won at trial in 2007 on her retaliation claim.
While an appeal in that case was pending, a series of
events unfolded that, Flanagan believes, show that two of her
coworkers tried to kill her. As she recounts, late one evening
at the office (the date is unclear), her colleague Cheryl Ander-
son overheard the Department’s human-resources director,
Donna Vaughan, tell Flanagan’s deputy chief, Phillipe Loi-
zon, something like “I want to bring some bodily harm to Kim
Flanagan.” Vaughan instructed Loizon “to figure out a way
to get [Flanagan] alone and away from her partner,” and Loi-
zon replied “I’m going to do it.” Sometime later, Anderson
told Flanagan, and also wrote down, what she had overheard.
Flanagan provides scant detail, but she believes that the
following events show that Loizon attempted to seclude and
kill her on March 13, 2008. That day Loizon radioed for Flana-
gan to join him and another department supervisor at an
Adult Probation Department facility to question a proba-
tioner regarding a potential tip. After the questioning, Loizon
and the probationer left the facility through the back door.
The other supervisor then locked the front door and escorted
Flanagan toward the back. While near the back door, Flana-
gan overheard Loizon say (to whom is not clear), “Do it to her

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No. 16-1927 3
when she gets out the door.” But nothing further happened,
and Flanagan soon left on her own. Flanagan regarded these
events as threatening, so she promptly filed a discrimination
and retaliation charge with the Equal Employment Oppor-
tunity Commission.
That EEOC charge, Flanagan says, prompted Loizon to
threaten her. The following month he approached her in the
office parking lot, exchanged words with her, and then
warned, "I could hit you and nobody would give a fuck.” He
then walked away. Sometime later, Loizon yelled in the of-
fice—and Flanagan believes regarding her—“Oh, here she
goes again with a new f’ing charge,” and “I’m so sick of eve-
rybody. [T]hese fucking lawsuits.”
In 2010 Flanagan brought this action against her employer.
She asserted claims of retaliation under Title VII based pri-
marily on the events in 2008.
The district judge entered summary judgment for the de-
fendants. Regarding the incident at the probation facility, the
judge determined that Vaughan’s and Loizon’s statements
were inadmissible hearsay, and that “hearsay problems
prove[d] fatal to Flanagan’s claim” because she could not oth-
erwise show a threat on her life. And Loizon’s statements in
the parking lot, the judge continued, did not rise to the level
of retaliatory conduct.
On appeal Flanagan argues that Vaughan’s and Loizon’s
statements are not hearsay and that a jury could find that her
coworkers tried to kill her in retaliation for litigating against
their employer. As evidence of a murder plot and attempt, she
points to Anderson’s account that Vaughan instructed Loizon
to seclude her and that Loizon agreed to “do it.” Flanagan also

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4 No. 16-1927
highlights Loizon’s command outside of the facility to “do it
to her when she gets out the door.”
We first consider whether the district court properly ex-
cluded these statements as hearsay. Commands are not state-
ments submitted for their truth and so are not hearsay. F ED.
R. EV. 801(a); Baines v. Walgreen Co., 863 F.3d 656, 662 (7th Cir.
2017). And statements of a declarant’s state of mind (motive,
intent, or plan) are not excluded under the hearsay rule. FED.
R. EV. 803(3). Therefore, Vaughan’s instruction to Loizon to
“get her alone,” Loizon’s statement that he was “going to do
it,” and Loizon’s command to “do it to her” are admissible.
But Flanagan’s testimony about what her colleague Anderson
told her, and Anderson’s written account of events, were
properly ignored because they suffer from a double hearsay
problem: they are statements of what Anderson said Vaughan
and Loizon had said.
We turn next to the merits. To prove a retaliatory hostile
work environment, Flanagan must show that (1) her work en-
vironment was both objectively and subjectively offensive; (2)
the harassment was in retaliation for protected behavior; (3)
the conduct was severe or pervasive; and (4) there is a basis
for employer liability. Boss v. Castro, 816 F.3d 910, 920 (7th Cir.
2016). Litigating under Title VII is a protected activity.
See 42 U.S.C. § 2000e-3(a).
A jury could not find that Flanagan was subjected to a hos-
tile work environment. Flanagan argues that Loizon created a
hostile environment when she overheard him say at the pro-
bation facility to “Do it to her when she gets out the door.”
But bearing in mind the circumstances, Loizon’s threat is too
oblique to be considered severe: it is not clear whom he was
asking to do what and to who. See Smith v. Ne. Ill. Univ.,

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No. 16-1927 5
388 F.3d 559, 568 (7th Cir. 2004) (threat posed was not suffi-
ciently severe to support retaliatory hostile work environ-
ment). Moreover, Flanagan walked away unharmed twenty
to thirty minutes later, casting doubt on whether she ever was
in danger at all.
Loizon’s parking-lot statements, considered with the ear-
lier events, also do not demonstrate retaliation. Flanagan said
that she felt threated by Loizon’s declaration that “[he] could
hit [her] and nobody would give a fuck,” but this lone com-
ment before he walked away is best characterized as an
“empty threat” rather than “a seriously contemplated decla-
ration of an intent to do harm.” See Smith, 388 F.3d at 568;
see also Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673, 679
(7th Cir. 2010) (“One threat and raised voices would not rise
to the level of a hostile work environment.”).
AFFIRMED

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