Theresa Bisluk v. BRIAN HAMER , LAINIE KROZEL , PAT WELCH, JESSICA NUNES, and ROD R. BLAGOJEVICH

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3365
T HERESA BISLUK ,
Plaintiff‐Appellant,
v.
BRIAN HAMER , LAINIE KROZEL , P AT WELCH,
J ESSICA NUNES, and R OD R. BLAGOJEVICH,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 09 CV 3080 — Richard Mills, Judge.
____________________
A RGUED J UNE 1, 2015 — D ECIDED SEPTEMBER 9, 2015
____________________
Before WOOD, Chief Judge, and P OSNER and WILLIAMS,
Circuit Judges.
WILLIAMS, Circuit Judge. Theresa Bisluk, a conservative
who votes Republican, was a special agent working in Chi‐
cago for the Illinois Department of Revenue’s Liquor Control
Commission under former Illinois Governor Rod Blago‐
jevich’s Democratic administration. She purchased a home
in southern Illinois and asked her employer about transfer‐

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2 No. 14‐3365
ring duty assignments from Chicago to southern Illinois, but
she ultimately failed to submit a transfer request or apply for
the job. And she did not get a position. She sued several
state officials alleging that she was denied a transfer to
southern Illinois because of her political association in viola‐
tion of the First Amendment and because of her gender in
violation of the Equal Protection Clause of the Fourteenth
Amendment.
We find that Bisluk did not present sufficient evidence
that she was discriminated against based on her political af‐
filiation or gender. The undisputed evidence shows that
Bisluk did not receive the transfer because she did not sub‐
mit the proper transfer paperwork or apply for the job.
Therefore, we affirm the district court’s grant of summary
judgment.
I. BACKGROUND
As a division of the Illinois Department of Revenue, the
Liquor Control Commission (the “Commission”) is a state
agency. It enforces laws regarding the manufacture, distribu‐
tion, and sale of alcohol and liquor. In 1996, Bisluk began
working for the Commission as a Special Agent I (“Agent
I”). She, like all Agents Is, took an exam to qualify for the
position. Her assigned geographical territory consisted of
Cook County, Illinois, which includes Chicago, and its sur‐
rounding counties.
In addition to Agent Is, the Commission employs Special
Agent IIs (“Agent IIs”). Agent Is and Agent IIs perform the
same enforcement functions, but Agent IIs have additional
responsibilities as supervisors who train, oversee, and re‐

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No. 14‐3365 3
view the work of Agent Is. The union that represents Agent
Is is different from the union that represents Agent IIs.
The defendants held leadership positions and played a
role in employment decisions at the Department of Revenue.
Brian Hamer was Director of the Department of Revenue,
and Pat Welch, the Deputy Director, oversaw Agents Is and
Agent IIs. Lainie Krozel was the Chief of Staff, and part of
Krozel’s responsibilities included staffing vacant positions in
the Commission. Senior managers notified Krozel when they
had vacant positions. Jessica Nunes was the Assistant Hu‐
man Resources Director. She approved electronic personnel
action requests (“ePARs”), which are internal forms required
for all vacancy postings and transfers. All employment deci‐
sions of the Commission were ultimately approved by the
office of former Illinois Governor Rod Blagojevich pursuant
to one of his executive orders.
Bisluk describes herself as a pro‐life conservative, who
votes Republican, but is not officially a member of a political
party. She has always voted Republican. She also worked for
a Republican politician in her youth and donates money to
Republican politicians.
As an employee, Bisluk was favorably regarded by her
supervisors, but Welch was more critical of her and other
female agents. Eric Wisette, Bisluk’s supervisor until May
2009, and George Gottlieb, who supervised Bisluk after Wi‐
sette retired, regarded Bisluk as a “fully satisfactory employ‐
ee” or a “fully competent agent.” Welch, who supervised
Wisette and Gottlieb during the relevant period, would con‐
tact them about various aspects of Bisluk’s work perfor‐
mance. He wanted them to issue reprimands to her. Wisette
and Gottlieb believed Welch’s criticism of Bisluk was base‐

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4 No. 14‐3365
less and unwarranted. They noticed Welch’s criticism was
never directed at male agents or agents whom performed
worse than Bisluk. Wisette and Gottlieb agreed that Bisluk’s
performance was equal to or exceeded the performance of
the male agents they supervised.
Welch apparently paid very close attention to Bisluk. In
the fall of 2007, Welch asked another Agent II who knew, but
did not supervise Bisluk, to tail her and suggested that she
might be engaged in misconduct. He also told the Agent II
that he knew where Bisluk came from and that Lou Casper,
a prominent member of the local Republican Party, was
“her guy and had supported her.” The Agent II refused to
follow Bisluk.
Bisluk had lived in Chicago her entire life. But for a long
time, she dreamed of purchasing land in southern Illinois to
cultivate grapes and operate a winery after retiring from
state government. She took steps to make that dream a reali‐
ty in 2007. After learning that David Fournie, an Agent II
working in southern Illinois, intended to retire in March
2007, Bisluk put her Chicago property on the market. She
sold it in January 2007 and bought a home and land in
southern Illinois in March 2007.
Also aware of Fournie’s imminent retirement, the De‐
partment of Revenue began the process to fill Fournie’s va‐
cancy. On March 8, 2007, Hamer signed off on an Agent II
job description that stated that one quarter of the Agent II’s
time would be spent as a lead worker overseeing Agent Is
engaged in investigations concerning the enforcement of Il‐
linois liquor laws; assigning reviewing, and controlling the
work of Agent Is; and training new staff, among other re‐
sponsibilities.

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No. 14‐3365 5
On March 15, 2007, Welch originated a vacancy request
form to fill the position created by Fournie’s departure. The
vacancy request stated that there was only one Agent II in
the territory. It also stated the importance of filling the posi‐
tion due to the potential non‐compliance of liquor estab‐
lishments and lost revenue that may result if the position
were not filled. The form also indicated that Welch expected
the position to be filled with an Agent II. The request was
approved on the afternoon of March 28, 2007.
The previous day, March 27, 2007, Bisluk sent a hand‐
written letter to Eric Wisette, her supervisor, requesting a
transfer to the position created by Fournie’s departure. That
same day, Wisette emailed the letter to Welch and another
employee. On the morning of March 28, 2007, Welch for‐
warded the email to Nunes and asked her to respond to
Bisluk. Nunes responded to Welch stating, in part:
I will send her a formal response, but unfortunately she
does not have any rights to just request a transfer. We
will proceed with filling the vacancy through the con‐
tract … and transfer requests are filled last. She must al‐
so have an official Request For Transfer … on file.
Nunes responded to Bisluk via email stating that Nunes
had received Bisluk’s letter requesting a transfer. Nunes
stated that the relevant bargaining agreement required
Bisluk to submit an official transfer request (RPS‐65) to the
personnel office. Nunes added that because transfer requests
are the last step in filling the position, Bisluk should affirma‐
tively apply for the position by submitting a bid form and an
application for the position (CMS‐100) during the posting
period for the vacancy.

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6 No. 14‐3365
Sometime before the Fournie position was posted, Bisluk
filled out a transfer request form and submitted it to the De‐
partment of Revenue, but the form was incomplete. It was
undated, unsigned, and does not indicate the requested
work location or position title. Bisluk also contacted Nunes’s
office and asked if she could be informed when it posted the
position. Nunes told Bisluk that she should check the Illinois
Department of Central Management Services website be‐
cause the vacancy would be posted there. Bisluk began
checking the website weekly and continued to do so until
she learned the Department of Revenue had filled Fournie’s
position.
It was not until October 18, 2007, that the Department of
Revenue posted the vacancy announcement for the Fournie
position. The posting period ended October 31, 2007. Bisluk
did not apply for the position. The Department of Revenue
requested a candidate eligibility list for Special Agent IIs af‐
ter the posting period closed. No one was on the eligibility
list, so the Department of Revenue requested that an exam
be administered to create a list of eligible candidates. The
test was administered in January 2008. Bisluk did not take
that Agent II exam and did not have an eligible Agent II ex‐
am score on file. The Department interviewed eligible can‐
didates around March 2008. After the candidate with the
highest score turned down the offer, the Department hired
Becky McClure, a Democrat, who had the second highest
score.
After the Department of Revenue filled the Fournie posi‐
tion, several other positions in southern Illinois became
available. Bisluk did not submit any (or the appropriate) ap‐
plication for these positions.

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No. 14‐3365 7
Bisluk filed a complaint in federal district court alleging
that Welch and Krozel, among others, violated the First
Amendment by not transferring her based on her political
affiliation. It also alleged that Welch violated the Fourteenth
Amendment by not doing so because of her sex. Each de‐
fendant below moved for summary judgment, and the dis‐
trict court granted the motions. Bisluk appeals the order
granting summary judgment as to Welch and Krozel.
II. ANALYSIS
On appeal, Bisluk argues that the district court erred by
granting Welch’s and Krozel’s motions for summary judg‐
ment as to her First Amendment and Equal Protection
claims. We disagree and discuss each claim in turn. We re‐
view the district court’s decision granting summary judg‐
ment de novo and construe all facts in favor of Bisluk. See
Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009).
A. Summary Judgment Was Appropriate on Bisluk’s
First Amendment Claim.
Bisluk argues that Welch and Krozel violated her First
Amendment rights. She contends Welch’s awareness of
Bisluk’s political affiliation and the animus he directed to‐
ward her would permit a reasonable jury to conclude that
Bisluk’s affiliation was at least one reason why she did not
receive favorable consideration of her transfer request. She
further contends that although Krozel was not aware of her
affiliation with the Republican Party, there is evidence that
Krozel turned a blind eye to the manner in which the De‐
partment of Revenue only filled vacancies with those loyal
to the Blagojevich administration, which is sufficient for lia‐
bility.

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8 No. 14‐3365
The First Amendment prohibits discrimination against
public employees based on the employees’ political associa‐
tion. Elrod v. Burns, 427 U.S. 347, 356 (1976); see also Rutan v.
Republican Party of Ill., 497 U.S. 62, 79 (1990) (finding that a
public employee’s affiliation with a political party is protect‐
ed under the First Amendment). Deciding whether to trans‐
fer a government employee based on political affiliation vio‐
lates the First Amendment, with certain exceptions for poli‐
cymaking positions. Rutan, 497 U.S. at 71–72 & n.5. To make
out a prima facie claim for a violation of this First Amend‐
ment right, Bisluk must present evidence that (1) her con‐
duct was constitutionally protected, and (2) her protected
conduct was a motivating factor in the challenged employ‐
ment action. See Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir.
2004); see also Mt. Healthy City. Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977).
Motivating factor causation splits the burden between the
parties on summary judgment. Peele v. Burch, 722 F.3d 956,
960 (7th Cir. 2013). A “plaintiff has the initial burden to pro‐
duce evidence that his speech was at least a ‘motivating fa‐
vor’ in the employer’s decision to take adverse action against
him.” Id. Defendants may rebut that evidence by demon‐
strating that they would have taken the same action even if
the protected conduct had not occurred. Id.
Bisluk failed to provide sufficient evidence to establish
her First Amendment claim. Bisluk’s Republican Party affili‐
ation is constitutionally protected conduct, which satisfies
the first element of her claim. However, Bisluk cannot estab‐
lish her claim because there is no causal link between
Bisluk’s failure to receive a transfer and her association with
the Republican Party. Bisluk did not receive a transfer be‐

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No. 14‐3365 9
cause she did not apply for the relevant positions. This fact
alone defeats her claim. A party cannot state a claim for re‐
fusal to honor a transfer request due to political affiliation if
she did not submit a transfer request or application for the
relevant position as required by the employer. Bisluk knew
that the position would be posted for a limited period. She
also knew of the formal procedure by which she could apply
or submit a transfer request and that she was required to do
so to be considered for the Fournie position and other vacant
positions to which she wanted to be transferred. Nonethe‐
less, she failed to follow either procedure and that is the rea‐
son she did not receive a transfer. Thus, her claim fails.
Further, there is no evidence that Welch or Krozel had a
role in selecting the people to fill the relevant positions. The
evidence shows that the Department of Revenue initially re‐
viewed the eligibility list to determine qualified candidates.
Because there were no eligible candidates when the posting
closed, an Agent II exam was administered. Those who took
the Agent II exam were considered for the Fournie position.
The Department offered the position to people based on
their test scores. Bisluk did not take the Agent II exam with
the others who were considered for the Fournie position nor
did she have an eligible exam score on file. Again, Bisluk did
not receive the transfer because she did not take the steps to
be considered for the position.
While there is no evidence that Krozel was even aware of
Bisluk’s political affiliation, there is some evidence to suggest
that Welch harbored some discriminatory animus toward
her because of her political views. However, because Bisluk
failed to formally request a transfer to or apply for the rele‐
vant positions, this evidence carries no weight. See Brown v.

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10 No. 14‐3365
Cty. of Cook, 661 F.3d 333, 337 (7th Cir. 2011) (“If all that’s
charged is discrimination on political grounds, any nonpolit‐
ical ground the defendant can prove would have caused the
discrimination regardless of the presence of political hostili‐
ty will preclude liability.”) Therefore, we affirm the district
court’s grant of Welch’s and Krozel’s motion for summary
judgment as to the First Amendment claim.
B. Summary Judgment Was Appropriate on Bisluk’s
Equal Protection Claim.
Bisluk also contends that Welch violated the Equal Pro‐
tection Clause of the Fourteenth Amendment by discriminat‐
ing against her based on sex.
To survive summary judgment, Bisluk must put forth di‐
rect or indirect proof of discrimination to create a triable is‐
sue of fact as to whether gender discrimination motivated
her employer’s decision not to transfer her. See Rudin v. Lin‐
coln Land Cmty. Coll., 420 F.3d 712, 719–20 (7th Cir. 2005);
Bruno v. City of Crown Point, Ind., 950 F.2d 355, 361 (7th Cir.
1991). Using the direct method, Bisluk must offer evidence
that shows or creates an inference that Welch intentionally
discriminated against her because of her gender. See Harper
v. Fulton Cty., Ill., 748 F.3d 761, 765 (7th Cir. 2014). Under the
indirect method, Bisluk must show that: “(1) she is a woman,
(2) she suffered an adverse employment action, (3) she was
meeting [her employer’s] legitimate business expectations,
and (4) a similarly situated man was treated more favora‐
bly.” Weber v. Univs. Research Ass’n, Inc., 621 F.3d 589, 593
(7th Cir. 2010). To determine whether two employees are
similarly situated, “a court looks at all the relevant factors,
which most often include whether the employees (i) held the
same job description, (ii) were subject to the same standards,

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No. 14‐3365 11
(iii) were subordinate to the same supervisor, and (iv) had
comparable experience, education, and other qualifications,”
if the employer considered these factors when filling the po‐
sition. Ajayi v. Aramark Bus. Servs., 336 F.3d 520, 532 (7th Cir.
2003).
As for direct proof of discrimination, there is some evi‐
dence from which a reasonable juror could infer that Welch
harbored discriminatory animus toward Bisluk because of
her sex, as he was more critical of women and her in particu‐
lar. However, there is insufficient evidence of a causal link
between the animus and Bisluk’s failure to receive a transfer.
The evidence merely shows that Welch was critical of Bisluk,
and she was subject to more scrutiny by Welch as compared
to male employees. Similar to the First Amendment claim,
this claim fails because there is undisputed evidence that
Bisluk never applied for a transfer. Welch could not have
denied her a transfer in violation of the Fourteenth Amend‐
ment if she never applied for one. There is no evidence that
even suggests that if she were a man, she would have re‐
ceived the position under these circumstances.
Bisluk’s failure to apply for the position or submit a for‐
mal transfer request is fatal to her claim under the indirect
method of proof as well. Nonetheless, we will analyze the
elements of the indirect method for the sake of complete‐
ness. Bisluk is a woman, and there is evidence that she was
meeting her employer’s expectations, but there is insufficient
evidence supporting the remaining elements of her claim.
First, she did not suffer an adverse employment action. See
Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 744–45 (7th
Cir. 2002) (finding a transfer without a reduction in pay or
other benefits based on an employee’s purely subjective

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12 No. 14‐3365
preference for one position over another is not an adverse
employment action); see also Steinhauer v. DeGolier, 359 F.3d
481, 483 (7th Cir. 2004) (noting the same analysis governs
claims of sex discrimination under Title VII and § 1983). To
the extent that her failure to be transferred to a position in
southern Illinois is contrary to her desires, it is not the type
of employer act that is subject to liability under § 1983. See
Herrnreiter, 315 F.3d at 744–45.
Further, Bisluk did not present evidence of a relevant
comparator. There is no evidence of a male employee who
held the same job, was subject to the same standards, was
subordinate to the same supervisor, and had comparable
qualifications that received a transfer to an Agent II position
after failing to submit a formal transfer request, apply for the
position, or take the Agent II exam. Bisluk admits as much,
but contends it is not fatal to her claim. She is simply wrong.
Because Bisluk failed to make out a prima facie case as to her
Fourteenth Amendment claim, the district court’s grant of
summary judgment in favor of Welch on this claim was not
in error.
III. CONCLUSION
The judgment of the district court is A FFIRMED.

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