In Their Opinion : Seventh Circuit Court of Appeals Commentary : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

TURNER v. THE SALOON (February 8, 2010)

Paul Turner was a waiter at The Saloon restaurant. After working there for several years, Turner and one of his supervisors carried on a sexual relationship that lasted for about nine months. According to Turner, the supervisor retaliated against him after she ended the relationship. He alleges that she changed his table assignments, disciplined him without cause, and sexually harassed him on a number of specific occasions. Turner also alleges that he was discriminated against because of his psoriasis. He wears no underwear as a result of that condition and therefore occasionally exposes himself while changing clothes. He claims that his supervisors failed to accommodate his condition. Instead, he was forced to change in a “vile” men’s room. One day, in the middle of a shift and with no other waiters on duty, Turner left the restaurant to run an errand. When he returned, he was fired. Turner sued the restaurant and several managers for gender and disability discrimination under Title VII and the Americans with Disabilities Act. He also made a claim for overtime. The court granted summary judgment to the defendants. Turner appeals.

In their opinion, Judges Manion, Rovner, and Sykes reversed and remanded in part in affirmed in part. The Court first addressed the Title VII sexual harassment claim. It concluded that the district court erred in not considering most of the alleged acts of harassment because they occurred outside the limitations period. Under the Supreme Court's decision in Morgan, whether an alleged act of harassment is considered by a court depends on whether the claim is for employment discrimination or for hostile work environment. In an employment discrimination claim, discrete acts outside the limitations period should not be considered. However, in a hostile work environment claim, all acts can be considered as long as one act contributing to the hostile environment took place during the limitations period. Taking all the alleged acts into account, the Court had little difficulty in finding that they were sufficient to survive summary judgment. The Court noted the presence of at least five discrete acts, three of which were aggressively physical. Since the district court did not reach the issue of employer liability, the Court left the issue for remand. The court next addressed Turner's claim that his termination was in retaliation for his complaints about the harassment. The Court concluded that Turner was unable to establish a prima facie case under either the direct or indirect method. It noted a series of at least ten serious reprimands in the eight or nine months preceding his termination as well as the fact that he left his job in the middle of the shift. The serious performance problems as well as the passage of time since his harassment complaint belie a causal connection between the complaint and his termination. The Court summarily rejected Turner's ADA discrimination claim -- his psoriasis is not a disability under the Act since it does not limit any major life activity. The fact that he is not disabled does not preclude his ADA retaliation claim. Since he did raise such a claim with his employer, his employer is not allowed to retaliate. He does not prevail on that claim, however, for the same reasons he could not prevail on his Title VII retaliation claim. Finally, the Court rejected Turner's wage claims as wholly unsupported by the evidence presented.

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COVELL v. MENKIS (February 8, 2010)

The Illinois Deaf and Hard of Hearing Commission (the "Commission") was created several years ago to provide services for and advocate on behalf of the hard of hearing. Gerald Covell served as its Director from 1998 until 2003. In July of that year, the Commissioners terminated him. Covell filed suit under § 1983, alleging that defendants violated both his property and liberty interests. Specifically, he alleged that he was let go without any pre-or post-termination process in violation of a property interest. He also alleges that defendants circulated false information about him, without providing him an opportunity to clear his name, in violation of his liberty interest. The district court granted summary judgment to the defendants, concluding that Covell had no property interest in this position and that he failed to demonstrate that any particular defendant circulated negative information. Covell appeals.

In their opinion, Judges Bauer, Manion and Williams affirmed. The Court first addressed the existence of a property interest. Although a property interest can arise from state law, a person must identify a specific statute, rule, or contract that limits the ability of the state to terminate him. The rules governing Covell's position states that he "shall serve at the pleasure of the Commission." The Court rejected Covell's position that an inconsistent right was somehow incorporated into the regulation by its reference to the Personnel Code. Since he had no property interest, he had no right to due process. With respect to his liberty interest claim, the Court stated that the plaintiff must show that he was stigmatized by publicly disclosed information and that he suffered a tangible loss. Specifically, the plaintiff must show that a named defendant made the public disclosure. Here, Covell contends only that the disclosure was made by someone in the government. Without evidence that the disclosure was made by a named defendant, Covell's claim fails.

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SERWATKA v. ROCKWELL AUTOMATION, INC. (January 15, 2010)

Kathleen Serwatka was an employee of Rockwell Automation. Upon her discharge, she brought suit under the Americans with Disabilities Act (ADA). She alleged that she was discharged because her employer considered her to be disabled. At trial, the jury indicated its belief on a special verdict form that a) Rockwell terminated Serwatka because it believed her to be disabled and b) that Rockwell would have fired her anyway. Treating the verdict as a mixed-motive finding, the court awarded no damages but did grant declaratory and injunctive relief and awarded attorneys fees. Rockwell appeals.

In their opinion, Judges Rovner, Evans, and Van Bokkelen vacated and remanded. The Court began its analysis with the Supreme Court's decision in Price Waterhouse. In that case, the Supreme Court held the an employer could violate Title VII even if an improper motive was not the only motive for a termination decision. It also held, however, that an employer would escape liability if it could prove that it would have made the same decision in the absence of the improper motive. Courts applied that Title VII decision to other anti-discrimination statutes. A few years later, Congress codified the Price Waterhouse holding that an improper motive need not be the only motive for a plaintiff to recover. It provided limited remedies, not an absence of liability, in the situation where the employer proves that it would have made the same decision in the absence of the improper motive. Specifically, it allowed for declaratory relief, injunctive relief, and attorneys fees. The ADA incorporates by reference the mixed-motive remedy provisions of Title VII. It was on this basis that the district court fashioned its relief. While the case was on appeal, however, the Supreme Court issued its opinion in Gross. In Gross, the Supreme Court held, notwithstanding Price Waterhouse, that mixed-motive claims were not allowed under the Age Discrimination in Employment Act (ADEA). The Supreme Court concluded that Congress' decision to specifically incorporate the Price Waterhouse approach into Title VII and not to incorporate it into ADEA indicated its intent not to authorize mixed-motive claims under that statute. The "because of" language of the statute therefore required "but for" causation. Like ADEA, the ADA does not include an expressed mixed-motive provision and it uses the same "because of" language. The Court therefore concluded that an ADA plaintiff must establish that the employer would not have fired her absent the improper motive. The special verdict form below indicates that Serwatka failed to do so. The Court vacated and remanded with instructions to enter judgment in Rockwell's favor.

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LAFARY v. ROGERS GROUP, INC. (January 12, 2010)

Angela LaFary was a field clerk for Rogers Group, Inc. (RGI), a producer of crushed stone. In 2003, she was performing primarily administrative duties but longed for a chance to get into sales. Michael DeMartin, her supervisor, indicated she was on a track to do so. Unfortunately, she got derailed in 2004. In February, she married a man who worked as an independent trucker for the same RGI office. She found out she was pregnant on March 15. On March 24, DeMartin proposed, in an e-mail, to transfer LaFary to another RGI office. He noted business needs as well as a concern about the possible conflict of interest presented by LaFary's marriage. He recommended a transfer based solely on the business needs, however. On April 1, RGI assigned LaFary's husband to work with a different RGI office. In the same month, they transferred LaFary to the same office. Although DeMartin knew she was pregnant when he transferred her, he asserts that he was unaware of her pregnancy at the time of his recommendation. The transfer resulted in a pay increase but may have negatively affected LaFary's opportunities for a sales position. LaFary suffered complications from her pregnancy. She was hospitalized for two weeks in June and never returned. In January of 2005, although LaFary indicated her desire to return, DeMartin informed her that, pursuant to RGI policy, she was terminated because she did not return when her leave expired. LaFary filed an EEOC complaint, alleging sex discrimination. She then brought suit under Title VII. The court granted summary judgment to RGI. LaFary appeals.

In their opinion, Judges Flaum, Wood, and Sykes affirmed. On the claim related to her transfer, the Court noted that the district court found both that it was not an adverse employment action and that LaFary did not establish that DeMartin knew of her pregnancy at the time he proposed her transfer. Although finding the first conclusion a close question, the Court affirmed on the second. LaFary's declaration stated only that DeMartin knew of her pregnancy "shortly after" she became pregnant. It never stated precisely when he knew. In fact, she never presented any competent evidence that DeMartin knew of her pregnancy at the time he recommended her transfer. Thus, she cannot prevail on that claim. With respect to her termination claim, the Court concluded that LaFary never established that a similarly situated individual not in her class was treated more favorably. Having failed to do so, she cannot prevail on the termination claim either.

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LEWIS v. CITY OF CHICAGO (December 21, 2009)

Donna Lewis was an officer in the tactical unit of the Chicago Police Department in 2002 when Lt. Terrence Williams became her supervisor. When she volunteered for a special security detail in Washington DC, Williams took her off the list. Lewis filed a grievance, alleging that it was a gender-based decision. She claims that she was the victim of several instances of retaliation after she filed the grievance. She filed an EEOC charge concerning both the security detail and retaliation. She alleges that the very next day Williams directed her to assist a narcotics team operation. During the operation, another officer accidentally struck her with a sledgehammer, breaking her neck. She is now on permanent disability. She filed suit. Although the court originally granted summary judgment to the defendants, the Seventh Circuit reversed her gender discrimination claim against Williams and the City and the retaliation claim against the City. At trial, a jury found in favor of the defendants. The court denied Lewis' motion for new trial. Lewis appeals.

In their opinion, Judges Evans and Sykes and District Judge Simon affirmed. Lewis raised four categories of error: jury instructions, evidentiary errors, prejudicial closing argument and insufficient evidence. With respect to the seven instruction challenges, the Court found the instructions to be proper or that Lewis either did not object or waived her objection. Likewise, with respect to Lewis' several evidentiary objections, the Court found no error. Specifically, the Court agreed that allowing Lewis to testify regarding the incident in which she suffered a broken neck at the hands of a fellow police officer would have been highly inflammatory. She was allowed to present evidence that she was diverted to a dangerous assignment. The Court also rejected her arguments with respect to the defendants' closing argument and the sufficiency of the evidence.

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PATTERSON v. INDIANA NEWSPAPERS, INC. (December 8, 2009)

Lisa Coffey and James Patterson were both employees in the editorial department of The Indianapolis Star in 2003 when Dennis Ryerson was named editor. Both describe themselves as "traditional Christians" opposed to homosexuality on religious grounds. Both believe that Ryerson's opposing view was somehow responsible for their employment troubles. Neither, however, had particularly stellar employment records. Coffey regularly violated the newspaper's overtime rule. She ultimately left the newspaper when a restructuring left her with the choice of a part-time editorial job or a full-time copy-desk job -- when what she wanted was a full-time editorial job. Patterson's issues were more substantive. His writing was weak and he made frequent, serious mistakes. After many warnings, Patterson was fired. Coffey and Patterson brought suit. They both alleged violations of Title VII for discrimination on the basis of religion. Patterson also alleges age and race discrimination, in violation of Title VII and the Age Discrimination and Employment Act (ADEA), and retaliation for filing an EEOC complaint. Finally both plaintiffs include a claim for negligent infliction of emotional distress. The court granted summary judgment against both plaintiffs. Coffey and Patterson appeal.

In their opinion, Judges Cudahy, Flaum and Sykes affirmed. Although the Court noted the parties' sharply diverging views of the facts in some respects, it ultimately found no reason to resolve them. Both plaintiffs were required to establish that they met their employer's legitimate performance expectations and that they were treated less favorably than a similarly situated employee. With respect to Coffey, the Court concluded that she failed to establish her prima facie case. First, the evidence of her regular violation of the overtime policy was undisputed. Second, she failed to identify any similarly situated employee, much less one who was treated more favorably. Patterson suffered the same fate. All of his discrimination claims (religion, race, and age) and his retaliation claim require that he prove that he was meeting the newspaper's expectations. To the contrary, the record contains his long history of performance problems. Finally, the Court rejected the state law negligent infliction of emotional distress claims. Indiana law requires a "direct physical impact" to recover for emotional distress -- losing a job does not qualify.

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MILAM v. DOMINICK'S FINER FOODS (December 7, 2009)

Ahmad Milam is one of several African-American produce clerks at a Chicago Dominick's grocery store. Each week, Dominick's posts the produce clerks’ schedule of hours for the upcoming week. A more-senior produce clerk is allowed to "claim" the hours of a less-senior clerk. Milam and five other African-American produce clerks filed suit against Dominick's, claiming that it was guilty of race discrimination when it classified two more junior white women as produce clerks but did not include them on the schedule. The court granted summary judgment to Dominick's on the ground that plaintiffs had no evidence of damages. Plaintiffs appeal.

In their opinion, Judges Posner, Kanne and Rovner affirmed. The Court was quite critical of the district court's handling of the case. It noted that one of the women at issue was actually never a produce clerk. Although she had been offered and accepted a promotion to produce clerk, she changed her mind and never was scheduled to work as one. Dominick's presented evidence years ago that the failure to list the second woman on the produce clerk schedule was an innocent mistake. Plaintiffs never challenged the evidence as pretextual. The court should have granted summary judgment to Dominick's. With respect to the eventual order of the district court, the Court agreed that the plaintiffs presented insufficient evidence of either actual or probabilistic injury. The Court conceded that the plaintiffs' probabilistic injury theory was a proper damages theory. It requires, however, evidence of the expected benefit – which was never presented. In the end, the Court termed the case frivolous.

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SENSKE v. SYBASE, INC. (December 3, 2009)

Robert Senske joined Sybase as a Strategic Account Manager in 2002. He was 55 years old at the time. For two years, Senske's performance was marginal at best in most areas. He did outperform his financial goal in 2004, but only because he got partial credit for two large deals on which he had little input or contribution. He was particularly criticized for excessive tardiness and incomplete paperwork completion. In early 2005, he was put on a performance improvement plan. He was told to improve his business skills, to be more responsive, and to complete his paperwork in a timely manner. Instead of showing improvement, Senske's performance deteriorated during the performance improvement period -- and he was fired. Senske sued Sybase under the Age Discrimination in Employment Act, alleging that he was fired as a result of his age. The district court granted summary judgment to Sybase. Senske appeals.

In their opinion, Judges Bauer, Kanne and Evans affirmed. Instead of enumerating the elements of a prima facie case under the indirect method, the Court proceeded directly to address the question of pretext. If Senske is unable to show that Sybase's stated reasons for his termination are pretextual, he also would not be able to establish that he was meeting his employer's legitimate expectations. The Court reviewed, in some detail, the evidence in the record of Senske's history of performance and Sybase's stated reasons for his termination. The Court concluded that Senske failed to present any evidence that the reasons given by Sybase for his termination were not sincere.

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FORD v. MINTEQ SHAPES AND SERVICES (November 24, 2009)

Dennis Ford has been employed as a forklift operator for Minteq for many years. Throughout those years, he has been the only African-American employee at his facility. In 2007, Ford brought a race discrimination claim against Minteq. He complained that a coworker referred to him as "black man," that a supervisor called him a guerrilla, that he was not allowed to bring his grandchildren to a holiday party and that he was retaliated against for seeking outside medical attention for an on-the-job injury. The district court granted summary judgment to Minteq. Ford appeals.

In their opinion, Judges Bauer and Wood affirmed. The Court noted that Ford's racial harassment claim required proof of an abusive work environment. The factors to be considered in determining whether the employer's conduct is severe and pervasive are the frequency and severity of the conduct, whether it is physically threatening and whether it interferes with the complainant's job. The Court concluded that Ford's complaints, individually and in the aggregate, did not rise to that level. Specifically with respect to the "black man" comments, the fact that Ford complained only once and never followed up with his employer on that complaint would not allow a reasonable juror to find that it rose to the level of harassment. The Court also concluded that Ford failed to present sufficient evidence on his disparate pay and retaliation claims to reach a jury.

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SCRUGGS v. GARST SEED CO. (November 20, 2009)

Dayna Scruggs worked for Garst Seed Company as a Research Technician. Curtis Beazer became her supervisor in 1995. Scruggs and Beazer did not get along. In fact, Beazer did not get along with a number of people. He made many derogatory remarks directed at Scruggs, several of them with a gender bias. In 2004, company management decided to demote or sever Beazer. Before they could do so, however, Garst was purchased by a competitor. New management decided to eliminate Scruggs' position. Scruggs filed an EEOC charge in December 2004 in response. In 2005, Scruggs applied for a Research Assistant position as part of the restructuring. New management did not hire Scruggs -- instead selecting the incumbent (a man) in the Research Assistant position with Garst. Scruggs filed a lawsuit, alleging retaliation and hostile work environment. The district court granted summary judgment against Scruggs. Scruggs appeals.

In their opinion, Judges Bauer, Wood and Williams affirmed. Scruggs' retaliation claim had two prongs -- that her technician position was eliminated and that the company failed to hire her for the Research Assistant position. Instead of addressing the elements of her retaliation claim, the Court went directly to the company's reasons for its actions. If Scruggs cannot create a material issue of fact with respect to whether the reasons were pretextual, she loses. The Court concluded the Scruggs failed to raise an issue of fact with respect to either the elimination of her technician position or her failure to be hired for the assistant position. Her technician position was eliminated as part of a restructuring and the company's decision to hire someone else for the assistant position was based on their evaluation of qualifications. Summary judgment was appropriate. With respect to the hostile work environment claim, the Court considered that the occasional inappropriate comments, which were not physically threatening, by someone who made such comments to males and females alike did not rise to the level of comments that alter the terms and conditions of employment.

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O'NEAL v. CITY OF CHICAGO (November 17, 2009)

Brenda O'Neal was a Chicago police officer. After ten years on the force, she was promoted to sergeant in 2001. In 2002, Neil sued the Chicago Police Department (CPD), alleging that a then-recent transfer violated Title VII. The district court granted summary judgment against her -- the Seventh Circuit affirmed. Since that lawsuit, the CPD has transferred her ten times into a total of seven different units of the department. O'Neal filed another lawsuit in 2007, alleging that the transfers amounted to discrimination and retaliation. The district court again granted summary judgment against her. O'Neal appeals.

In their opinion, Judges Bauer, Wood and Williams affirmed. The Court first emphasized that it would consider only the last two transfers because of the timing of O'Neal's EEOC complaint and that it would not consider the transfers as a whole because O'Neal failed to make the argument. One of the elements of O'Neal's retaliation claim is that the adverse action taken by the department must be causally connected to her protected activity. Here, her protected activity includes her 2002 lawsuit and a 2006 grievance. The Court concluded that there was insufficient evidence of a causal connection under either the direct or indirect methods of proof. Specifically, with respect to the indirect method, O'Neal failed to rebut the department's evidence that she was not meeting its legitimate expectations. The Court stated that her gender discrimination claim failed for the same reasons.

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BUTLER v. ROUND LAKE POLICE DEPARTMENT (October 27, 2009)

Patrick Butler was a sergeant on the police force of a small community north of Chicago. Beginning in 2003, Butler's health began to deteriorate rapidly. He experienced fatigue, night blindness and trouble breathing. In May of 2004, he was diagnosed with chronic obstructive pulmonary disease. After a short time off, his physician permitted him to return to the force on "light duty." Because of the size of the force and the number of sergeants, no light duty assignment was available. The village advised Butler that he could return to work only when he had clearance to work any possible assignment. Shortly thereafter, Butler applied for a disability pension. He testified at his pension hearing that his physical condition prevented him from performing the required duties of his job. Three physicians also completed certificates of disability for Butler. The pension board found him disabled and awarded him disability benefits. He then brought suit against the village under the Americans with Disabilities Act. The district court granted summary judgment to Round Lake.

In their opinion, Judges Posner, Manion and Evans affirmed. In order to succeed on an ADA claim, the Court stated that one must show that he can "perform the essential functions" of his job. Under the doctrine of judicial estoppel, a party cannot prevail in one proceeding and then deny the very ground on which he prevailed in a subsequent proceeding. Here, Butler's sworn testimony that his physical condition prevented him from performing his job would appear to negate an element of his ADA claim. Although the Court noted that a disability pension claim (based on one's inability to perform one's job) and an ADA claim (based on one's ability, at least with accommodation, to perform one's job) are not necessarily mutually exclusive, they do require a satisfactory explanation of their consistency. For example, the passage of time or a change in one's disability can render seemingly inconsistent positions consistent. Here, however, Butler offered no explanation -- his ADA claim must fail.

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LONG v. TEACHERS’ RETIREMENT SYSTEM (October 23, 2009)

The Illinois Teachers’ Retirement System (“TRS”) manages the pension benefits of Illinois’ retired teachers. For almost two decades, Julie Long received favorable performance reviews at her job there. During the mid-2000s, however, her performance deteriorated. She missed a lot of work, made a number of errors in processing data, and failed to conduct required training. TRS’ personnel manager, Gina Larkin, met with Long and her immediate supervisors in late 2005. Larkin learned of Long’s performance problems and her absences. She suggested that Long might be eligible for FMLA leave. Long applied for and took intermittent FMLA leave from October – January 2006. Larkin met with Long’s supervisors again and learned that Long’s performance and attendance issues remained uncorrected. Larkin recommended to Jon Bauman, the Executive Director, that Long be fired. Bauman, after reviewing Long’s evaluations and speaking with her supervisor, decided to fire her. Long brought suit, alleging that her termination was in retaliation for taking FMLA leave. The district court granted summary judgment to TRS. Long appeals.

In their opinion, Chief Judge Easterbrook, Judge Sykes and District Judge Kendall affirmed. The FMLA does not allow an employer to discriminate against an employee for taking FMLA leave. Here, two of the three elements of a claim of discrimination – protected activity and adverse employment action --- are not disputed. The issue on appeal is whether there is a causal connection between the two. In order to do that, stated the Court, Long had to produce evidence that the decisionmaker acted with an unlawful purpose. Bauman had the only authority to fire a TRS employee. The record shows that Bauman not only did not act discriminatorily – he did not even know about Long’s FMLA leave. While the “cat’s paw” doctrine sometimes imputes a subordinate’s intent to a supervisor, the “singular influence” requirement of that doctrine does not exist here. The Court also rejected Long’s arguments that discriminatory intent could be inferred from TRS’ failure to follow its own disciplinary policy (the Court concluded that it did follow it) and from the sudden decline in her performance evaluations (the Court noted that the decline in evaluations prior to the protected activity does not support the inference.)  

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BRUNKER v. SCHWAN'S HOME SERVICE (October 22, 2009)

Frank Brunker was employed as a Route Manager for Schwan's Home Service, a home-delivery food service company. Brunker sold and delivered the company's products to its customers. Beginning in early 2003, Brunker began experiencing shaking, dizziness, headaches, etc. -- later to be diagnosed as multiple sclerosis. On his doctor's advice, he took two months disability leave, returned to light duty for one month, and then returned to unrestricted work. Several months later, he decided to take some time off for additional tests and evaluation. Around that time, he was disciplined on several occasions for failure to run a route, failure to adhere to a dress code, and writing a check with insufficient funds. When Brunker returned with his diagnosis of multiple sclerosis, the company fired him for unsatisfactory performance, but backdated his termination to the day before he left. Brunker brought suit under the Americans with Disabilities Act. The court granted summary judgment to Schwan's. Brunker appeals.

In their opinion, Judges Cudahy, Flaum and Rovner affirmed in part, vacated and reversed in part and remanded. On the merits, the Court first addressed the issue of whether Brunker created a genuine issue of fact as to whether he was "disabled." Under the ADA, one is "disabled" if one has an impairment which substantially limits a major life activity -- or if one is regarded as having such an impairment. The Court agreed with the district court that Brunker failed to show a substantial limitation on a major life activity -- the evidence showed only an intermittent or occasional impairment. However, the Court concluded that the evidence, including the discipline and the backdating of his termination, was sufficient to show that Schwan's regarded Brunker as disabled. Thus, the Court remanded the discrimination claim for additional proceedings. The dismissal of the failure to accommodate claim, however, was affirmed by the Court. The Court found no issue of fact with respect to Schwan's offering of an accommodation. The Court also resolved numerous discovery and sanction disputes.

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GUNVILLE v. WALKER (October 9, 2009)

Robert Gunville and Richard Oakley had both worked for the Illinois Department of Corrections for over twenty years, all during Republican administrations, when a Democratic governor was elected in 2003. Both were laid off within months of the new administration’s inauguration. Gunville was an active member of the Republican Party while Oakley had a record of voting in Republican primaries. Gunville and Oakley brought suit, alleging a violation of their First Amendment rights. They also allege a violation of their Fourteenth Amendment rights as a result of their placement on a reemployment list for only their last county of employment. The district court granted summary judgment to the defendants. Gunville and Oakley appeal.

In their opinion, Judges Manion, Rovner and Sykes affirmed. In first addressing their First Amendment claim, the Court noted that there was no dispute that their speech was constitutionally protected and that they suffered a deprivation. The issue on appeal was whether the layoff came as a result of their political affiliation. In order to establish the unlawful motivation, the plaintiffs must first establish that the defendants knew of their political affiliation. After concurring with the district court's hearsay ruling on one particular statement, the Court concluded that there was a complete absence of evidence that the persons deciding which jobs to eliminate knew of plaintiffs' political affiliations. The Court came to the same conclusion with respect to the Fourteenth Amendment claims. The due process clause does not provide an opportunity to challenge the meaning of a regulation, the relief plaintiffs sought. To the extent that plaintiffs assert political retaliation, the due process argument suffers from the same complete absence of evidence as the First Amendment claim.

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EKSTRAND v. SCHOOL DISTRICT OF SOMERSET (October 6, 2009)

Renae Ekstrand had been teaching successfully at Somerset Elementary School for several years when the school reassigned her to an interior classroom without natural light. Ekstrand had a disorder which limited her ability to function in an artificial light environment. She told the principal of her condition. She repeatedly requested a transfer to a room with natural light, two of which were available. The school addressed some of her concerns but refused to change her room assignment. Her condition deteriorated to the point where she had to seek medical attention and took a medical leave of absence. She continued to request a room reassignment during her leave. Ultimately, she left the school and brought an action pursuant to the Americans with Disabilities Act. The district court granted summary judgment to Somerset. Ekstrand appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Evans (concurring) reversed in part and affirmed in part. On the failure to accommodate claim, the Court stated that Ekstrand had to provide evidence that she had a disability, that the school was aware of the disability and that the school failed to reasonably accommodate her. The Court found evidence in the record that she was disabled and that the school was aware of her disability. The principal issue on appeal was whether the school accommodated her disability. The Court noted that a request for accommodation requires significant communication between the parties, particularly when the disability is a mental one. The Court found that the school did reasonably accommodate Ekstrand's disability in the early stages of their communication. During that time, Ekstrand identified a number of conditions in her classroom that exacerbated her depression but never provided direct evidence of the necessity of natural light. However, the court did find a time in November when Ekstrand's psychologist identified natural light as a key to her improvement. Once it was so advised, the Court concluded that the school could have given Ekstrand a room with natural light at a reasonable cost. The Court therefore disagreed with the lower court's finding that no reasonable jury could find in Ekstrand's favor. On the constructive discharge claim, the Court agreed with the district court that Ekstrand failed to show that her working conditions were so intolerable that her resignation was an appropriate response.

Judge Evans concurred in the judgment but wrote separately. He expressed his doubt whether Ekstrand could demonstrate that she was a "qualified individual" under the ADA given her condition and the fact that she was a first grade teacher. He suggested that the district court address that issue on remand.

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MCGOWAN v. DEERE & CO. (September 11, 2009)

William McGowan, an African-American male, had over 20 years of employment at Deere & Company when he injured his back. He eventually underwent surgery. He returned to work with a 25-pound weight restriction imposed by the company doctor. His surgeon and physical therapist both cleared him, on separate occasions, to return to work with less onerous restrictions. The weight restriction prevented him from returning to his prior job and also disqualified him from two other positions. McGowan brought an action under Title VII and § 1981, complaining of Deere's refusal to reinstate him and refusal to select him for the other positions. The district court granted summary judgment to Deere. McGowan appeals.

In their opinion, Judges Flaum and Williams and District Judge Lawrence affirmed. The Court first noted that the elements and proof necessary for Title VII and § 1981 are essentially identical. McGowan proceeded under the indirect approach, in which he had to prove, among other things, that other persons similarly situated but not in his protected class were treated more favorably. The similarly situated test, said the Court, is a flexible test. The purpose is to identify a sufficient number of common factors between the claimant and others in order that a meaningful comparison can be made. The critical comparators here are job duties and weight restrictions. The court concluded that McGowan did not provide sufficient evidentiary basis for either job duties or weight restrictions on the employees that the proffered as similarly situated. He therefore failed to make a prima facie case. Alternatively, the Court concluded that McGowan failed to produce any evidence that Deere's stated reasons for its decisions were discriminatory.

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DARCHAK v. CITY OF CHICAGO BOARD OF EDUCATION (September 3, 2009)

Anna Darchak, a native of Poland, worked for several years in the Chicago public school system as a teacher of English as a Second Language. In 2005, she was hired as a full-time teacher at the Princeton Alternative Center on a one-year contract. It was not a good year. Almost immediately, Darchak complained that Hispanic students were being treated more favorably than Polish students. Darchak alleges that Princeton's principal made several disparaging remarks in reference to Darchak's heritage. Later in the year, the principal assigned Darchak to a classroom with a large number of Spanish speaking students. Darchak complained – and she received a negative evaluation. The principal chose not to renew Darchak's contract at the end of the year. Darchak filed suit, alleging retaliatory discharge, First Amendment retaliation under § 1983, and national origin discrimination under Title VII. The district court granted summary judgment to the defendants. Darchak appeals.

In their opinion, Judges Cudahy, Ripple and Wood affirmed in part and reversed in part. The Court addressed each claim in turn. First, with respect to the state law claim of retaliatory discharge, the Court stated that Darchak had to demonstrate that she was discharged, that the discharge was retaliatory, and that the discharge violated a clear mandate of public policy. The Court concluded that the claim failed on both the first and third elements. First, Darchak was not discharged -- her one-year contract was not renewed. Second, the public policy relied on by Darchak -- equal education -- has never been recognized by Illinois courts as support for a retaliatory discharge claim. With respect to her First Amendment retaliation claim, the Court concluded that the Board of Education was not liable under Monell. Although Darchak alleged that the principal was a final policymaker, the Court stated that Illinois law makes the Board the final policymaker. The Court agreed that the Board's adoption of the principal's recommendation could be a basis for liability but only if they adopted the retaliatory basis as well. The Court found no evidence of that. Finally, with respect to the Title VII national origin discrimination claim, the Court noted that she put forth both a direct and an indirect case. The Court rejected her indirect method approach because she could not demonstrate pretext with respect to the Board's reasons for nonrenewal. On her direct method, however, the court found that Darchak presented sufficient circumstantial evidence to reach a jury. The evidence of derogatory remarks followed shortly by a disciplinary notice from the principal follow later by the nonrenewal establish a prima facie case. The fact that Darchak's testimony is uncorroborated and self-serving does not change that result, as the district court believed. The testimony is based on her first-hand experience and deserves to be considered. The Court concluded that the evidence raised a question of intent that had to go to the jury.

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 PRINCE v. STEWART (September 2, 2009)

The Chicago Teachers Union fired Earl Prince from his job. Prince filed an administrative discrimination charge. He then brought an action pro se for employment discrimination under Title VII before he received any response from the Illinois Department of Human Rights or the EEOC. The district court dismissed the complaint because Prince had not yet received a right-to-sue letter. Several months later, after Prince had received the letter, the district court granted his motion to reopen the case. The court vacated the order, however, a few days later at Prince's request. Months later, on the last day to sue, Prince again moved to reopen the case. This time, the judge turned him down -- and it was too late to file a new complaint. Prince appeals.

In their opinion, Judges Posner, Coffey and Manion reversed and remanded. The Court recognized Prince's mistake when he followed up the first order reopening his case with a request to reinstate the dismissal. He was simply going to be out of the jurisdiction for a short time and need not have worried about his temporary unavailability. However, the Court also recognized that no one was prejudiced by his mistake. If the second motion to reopen was filed in a timely fashion, the Court could not see any reason why it should not have been granted. The Court concluded that the district court’s lulling of the pro se litigant into believing that he did not have to refile his complaint amounted to equitable tolling.

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WATERS v. CITY OF CHICAGO (September 2, 2009)

Daniel Waters was a painter in the Chicago Department of Transportation (CDOT). In 2000, he refused a request by his supervisor to participate in a political campaign. At about the same time, he twice contacted local investigative journalists. On one occasion, he complained about a bridge that he thought was in such a state of disrepair that it was a danger to the public. On the other occasion, he complained that the City was making some improvements to a piece of property and that it did not own. Several of his superiors were unhappy with his conduct. He was transferred into a job working for a supervisor for whom he had worked before several times. Their relationship was strained, at best. Within a matter of weeks, Waters had several run-ins with his supervisor and was reported multiple times for violent behavior. A deputy commissioner recommended his firing. The department did not act on the recommendation. Department policy required that Waters be given an opportunity to respond to the charges of violence before any discipline was handed out. Waters provided his side of the story -- but the department ruled that his conduct amounted to violence in the workplace. The deputy commissioner resubmitted his recommendation. A pre-termination hearing was held. Commissioner Rice, who held the only authority to fire, terminated Waters. Waters sued the City under § 1983, alleging First Amendment retaliation. A jury awarded Waters $225,000 in damages and the court awarded more than $1 million in back pay, front pay and pension benefits. The City appeals.

In their opinion, Judges Manion, Rovner and Tinder vacated, reversed and remanded. The Court stated that, under Monell, a city can be liable for a constitutional deprivation but only if it resulted from a policy or practice, or that the injury was caused by someone with final policymaking authority. Waters relied on the latter prong. Final policymaking authority comes from state and local law, though. Here, said the Court, local law gives policymaking authority to the City Council, which has delegated it to the Commissioner of Human Resources. Although the Court recognized that department commissioners do have some authority to execute existing policy, they do not have policymaking authority. Since Commissioner Rice had no such authority, municipal liability cannot be based on her actions. The Court went on to note that Waters presented no evidence that Rice’s termination was in retaliation for his exercise of his First Amendment rights. Even if she had policymaking authority, the absence of that evidence would have defeated his claim.  

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MACH v. WILL COUNTY SHERIFF (September 1, 2009)

Michael Mach was a Will County Deputy Sheriff assigned to the traffic division. For years, he maintained a satisfactory performance record. That changed after 2003. Because of budget pressure, the department notified the deputies in the traffic division that they could be temporarily assigned to the patrol division. Mach and other deputies were not happy. He started acting out, failing to follow directives, disregarding instructions, and neglecting his duties. After reprimands and warnings, he was permanently transferred to the patrol division. Mach brought an action pursuant to the Age Discrimination in Employment Act (ADEA). In addition to his transfer, he stated five other grounds for his claim. In response to the defendants’ opening briefing on summary judgment, he abandoned all five of those other grounds. The court granted summary judgment to the Sheriff and also awarded fees of 5/6 of the costs of preparing the summary judgment motion, reflecting effort that went into attacking the "worthless" claims. Mach appeals.

In their opinion, Judges Bauer, Flaum and Kanne affirmed. On the merits, Mach relied on the direct method of proof, which required him to produce evidence that he was transferred because of his age. The Court noted an absolute lack of evidence in the record supporting any such inference. His poor job performance was well documented by the department. The only circumstantial evidence of age discrimination was one stray comment made by an individual who had no influence on the transfer decision. Mach's ADEA claim fails. With respect to the fee award, the Court noted a prior holding that ADEA does not preclude an award of fees to a prevailing defendant if a plaintiff litigates in bad faith. Here, the Court concluded that the district court did not abuse its discretion in ruling that Mach litigated the five claims in bad faith. The Court noted its belief that such sanctions would be rare -- here the district court explicitly held that the five claims were "worthless."

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ROBY v. CWI, INC. (August 27, 2009)

Misty Roby was a cashier at a CWI retail store. For months, she experienced sexual-harassment by a store supervisor, Joe Schiavone. Notwithstanding the fairly frequent and offensive behavior, she did not report it. Only after another supervisor overheard a comment she made to a coworker and specifically asked her about it did she report the conduct. The store manager immediately reported it to Human Resources, which conducted an investigation. The company reorganized the store schedule so as to minimize the times Roby and Schiavone worked together. As a result of the investigation, Schiavone received a written warning. Roby was informed of the results of the investigation. Several weeks later, when Roby complained about having to close the store with Schiavone, she was allowed to go home and stay home until the store manager returned from vacation. Although the company told her that they could not accommodate her desire to never be scheduled at the same time as Schiavone, they kept her on the schedule and expected her to come to work. She simply never returned. Instead, she brought an action under Title VII alleging the sexual harassment and also alleging that she was retaliated against for her complaints. The district court granted summary judgment to CWI. Roby appeals.

In their opinion, Judges Flaum, Williams and Lawrence affirmed. In order to prevail on a hostile work environment claim, the Court noted that Roby had to demonstrate employer liability. Here, because Schiavone is a supervisor, the company is strictly liable if there was a tangible adverse employment action. If not, however, the company may assert an affirmative defense that they used reasonable care in trying to prevent the harassment and that Roby failed to take advantage of corrective opportunities. The Court found no tangible employment action. The record presented insufficient support for an actual discharge or for the degree of intolerable working conditions necessary to establish a constructive discharge. Although Roby continued to have to work with Schiavone, CWI made an effort to minimize their contact. Without a tangible employment action, the Court found that the company met its burden on the affirmative defense. It conducted an effective investigation and disciplined Schiavone. Roby, on the other hand, failed to report the behavior when it first occurred and did not take advantage of the company’s anti-harassment policy. With respect to Roby's retaliation claim, she must establish the presence of a material adverse employment action. The Court found no such evidence in the record.

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MIDDLETON v. CITY OF CHICAGO (August 24, 2009)

From 1960 until 1989, Charles Middleton served in the Air Force. On two occasions in the early 1990s, he applied for positions with the City of Chicago. He was not hired for either position. In 2007, Middleton sued the City pursuant to the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). He alleged that the City refused to employ him on account of his military service. The district court applied the four year "catch-all" statute of limitations in 28 U.S.C. § 1658 (a) and dismissed his complaint. Middleton appeals.

In their opinion, Judges Kanne, Rovner and Wood affirmed. The Court considered not only the application of § 1658 (a) to the claim but also the provisions of the Veterans' Benefits Improvement Act (VBIA), enacted after the appeal. Section 1658 was enacted in 1990. Its purpose, said the Court, was to minimize the borrowing of state statutes of limitations for federal causes of action. It provided a four-year statute of limitations for any federal claim brought under a later-enacted statute, if the statute had no expressed limitations period. USERRA was enacted four years later and contained no expressed statute of limitations. The Court concluded, based on the plain meaning of the statute, that the four-year limitations applied. In doing so, it rejected the Middleton's arguments that: 1) the section did not apply because USERRA was simply an amendment of an earlier-enacted statute, and 2) the legislative history indicated Congress' intent that no statute of limitations apply. The Court turned its attention to the VBIA. The VBIA eliminates any limitations period for a USERRA cause of action. The Court noted the "well-established" rule that a statute should not be applied retroactively unless Congress' intent is clear. Nothing in the statute addresses retroactivity. The Court concluded that the statute should not be given retroactive effect. Finally, the court rejected Middleton's argument that the VBIA was merely a clarification of existing law.

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COFFMAN v. INDIANAPOLIS FIRE DEPARTMENT (August 20, 2009)

Tonya Coffman worked as a firefighter in Indianapolis for a few years without incident. In 2003, however, several of her coworkers began to express concern about her ability to drive safely because of her height (she is less than 5 feet tall). The department conducted a series of safety evaluations, which she passed. The concerns continued -- another round of evaluations followed. Her coworkers’ concerns expanded beyond safe driving into issues concerning her mood and interactions with others. Eventually, the department recommended a fitness-for-duty evaluation and a transfer to limited-duty status. The evaluation resulted in an individual therapy referral and more fitness evaluations. After one of those evaluations, she was approved for light duty and eventually returned to full active duty. Coffman sued the department and several individuals under Title VII. She alleged that the driving tests and fitness evaluations were gender discrimination and harassment. She also brought a claim alleging that the medical examinations violated the ADA. The district court granted summary judgment against Coffman on all claims. Coffman appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Rovner affirmed. The Court first addressed her Title VII claim under the direct method of proof. Coffman asserted that the record established a "convincing mosaic" of evidence from which a jury could conclude that she was the victim of gender discrimination. To the contrary, the Court found an absence of any evidence in the record that the driving evaluations, the fitness evaluations or her reassignments occurred, even in part, because of her gender. Her failure to do so illustrates the correctness of the district court summary judgment ruling. On her hostile work environment claim, the court concluded that the conduct of the department did not amount to degrading or hostile behavior. In fact, the Court noted that much of the conduct she complains of was accompanied by offers of support and guidance. In addition, as with the discrimination claim, Coffman failed to create a causal link between the alleged hostile behavior and her gender. With respect to the ADA claim, the Court noted that the statute prohibits a covered employer from requiring a medical examination unless it is shown to be job related and a business necessity. Based on the special work environment of a fire department and its responsibility to the public at large, as well as the fact that the department experienced two suicides in the preceding months, the Court concluded that the examinations were consistent with the requirements of the statute.

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DEAR v. SHINSEKI (August 20, 2009)

Deborah Dear, an African-American woman, had impressive educational and employment credentials when she was hired by a Veterans Affairs hospital in 2004. She continued to do well and received positive evaluations for a few years. In 2006, however, her supervisor discovered that the morale in her department was very low and staff members were complaining about Dear’s supervision. The supervisor also witnessed Dear engage in inappropriate discipline. Another supervisor asked Dear to develop and submit a plan for improving the situation. Dear did develop and submit a plan -- but it was late and failed to address many of the issues. Dear was temporarily reassigned to a non-supervisory position with a decrease in salary. She was replaced by a white woman. Dear filed an EEO complaint alleging race discrimination. Several days later, she was permanently reassigned to a staff nurse position. Dear filed a lawsuit pursuant to Title VII, alleging race discrimination, retaliation and hostile work environment. The district court granted summary judgment to the defendant. Dear appeals.

In their opinion, Judges Cudahy, Ripple and Wood affirmed. The Court addressed Dear’s discrimination claim under the indirect method of proof. The parties did not dispute that Dear was in a protected class and that her reassignment was an adverse employment action. The Court addressed the other two elements: whether she was meeting her employer's legitimate expectations and whether she identified a similarly situated employee who was treated more favorably. The Court concluded that she met neither element. With respect to meeting expectations, Dear relied on her impressive education and employment history. While those may be relevant, the Court emphasized that it must look to her performance at the time of the adverse employment action. The record contained several instances of her failure to meet expectations at the time of her reassignment. Dear also failed to meet her burden of identifying a similarly situated employee who was treated differently. The same two shortcomings prevent her from avoiding summary judgment on her retaliation claim. Finally, with respect to her hostile work environment claim, the Court noted that there was little support in the record for her contention that the environment was hostile to African-Americans.

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DURABLE MANUFACTURING CO. v. UNITED STATES DEPARTMENT OF LABOR (August 18, 2009)

Congress has specified a process under which an employer is allowed to obtain a visa for an alien worker. Before the government can issue a visa to such an alien, it must have issued a labor certification. A labor certification is a statement by the Secretary of Labor that there are insufficient qualified workers available to perform specific work and that the hiring of an alien to perform the work will not adversely affect wages and working conditions. In the past, labor certifications were generally valid indefinitely. The regulations were amended, effective July 2007, to provide that a labor certification was only valid for 180 days from the date of the certification. A number of employers who had received labor certifications and the aliens who were to be hired filed suit, alleging that the agency acted beyond its authority in amending the regulation or, alternatively, that it should not have been applied retroactively. The district court granted summary judgment to the government. The employers and aliens appeal.

In their opinion, Judges Manion, Rovner and Tinder affirmed. The Court looked to both the language of the statute and its purpose in order to determine whether the agency acted within its authority in amending the regulation. Here, the statute actually requires the Secretary of Labor to certify the labor supply "at the time of" the visa application. The earlier version of the regulation did not address this temporal requirement -- the amendment does. The amended regulation also promotes the purposes of the statutory scheme by ensuring that the visa determinations are based on current labor market indicators. The Court concluded that the agency was within its authority in promulgating the amendment. With respect to the argument that the amendment was an illegal retroactive rulemaking, the Court concluded that the amendment did not, in fact, have retroactive application. Under the Supreme Court's decision in Landgraf, an amendment only has retroactive effect if it "would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Some of the certifications at issue were not approved until after the effective date of the amendment -- the amendment had no retroactive application with respect to them. With respect to the applications that were approved prior to the amendment, the plaintiffs possessed a right -- the right to a certification of "indefinite" validity. Their right was to a certification that was valid until the agency fixed a different period of validity. The amendment did nothing more and thus does not operate retroactively.

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DAUGHERTY v. WABASH CENTER, INC. (August 14, 2009)

Michael Daugherty worked for Wabash Center, Inc. for seven years. He had an excellent employment record. He was promoted on several occasions and always received positive reviews. Things changed in 2006. He started having trouble with his coworkers and his staff. He was given a written reprimand for abusive e-mails and unacceptable management style. Permission for a month-long vacation was revoked. Daugherty immediately visited his doctor and requested two weeks FMLA leave from the Center. His request was granted. In his absence, the Center discovered that he had used the Center's credit card to make at least five unauthorized purchases. It also discovered that he had failed to follow through on some key responsibilities. When Daugherty was due back from his leave, the Center presented him with a corrective action plan -- which he refused to sign. He instead requested additional medical leave. The Center granted his request but asked that he not access the network while on leave and asked him for his keys and passwords. He refused. After further analysis revealed that he had deleted thousands of files while on leave, the Center fired him. Daugherty filed suit, alleging a violation of the FMLA. The court granted summary judgment to the Center. Doherty appeals.

In their opinion, Judges Posner, Kanne and Sykes affirmed. Under the FMLA, the Court stated, an employee is not entitled to any right he or she would otherwise not be entitled to absent the leave. The FMLA does not prohibit an employer from terminating an employee's employment during FMLA leave if it discovers misconduct that justifies the termination. Here, Daugherty admitted most, if not all, of the misconduct. The Center did not violate the FMLA by failing to reinstate Daugherty. The Court also rejected the Daugherty's alternative claim that the Center retaliated against him for taking leave. The undisputed evidence in the record is that the Center fired Daugherty for multiple instances of misconduct. Finding no factual dispute, the Court affirmed the summary judgment for the Center. 

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PORTER v. ERIE FOODS INTERNATIONAL (August 7, 2009)

Tremeyne Porter, an African-American man, was an employee of a temporary placement agency. He was assigned to work the third shift at Erie Foods, a food production facility. He was the only African-American on the shift. After a few weeks without incident, things changed. One night, co-workers showed him a rope noose hanging on a piece of machinery. His supervisor ordered its removal, although she then proceeded to hang it on the bulletin board in her office, in plain view of the entire staff. She conducted an investigation as to its origin, unsuccessfully. The next night, a human resources representative held a meeting with the entire shaft. He advised the workers that harassment would not be tolerated. He later met privately with many of the shift workers as well as the shift supervisor. Porter was asked several times if he knew who was responsible for the news. He said he did not. In another incident, a co-worker showed Porter a noose. Porter felt threatened and did not disclose the identity of the culprit. Porter declined an offer to move to a different shift. Porter's supervisor continued to investigate, asking other shift supervisors if they had heard anything. Porter reported the incidents to the local police, identifying individuals, but asked that nothing be done. Porter left Erie Foods after about a month. He provided the company a statement with additional information about the incidents, including the identity of the worker who had handed him the noose. That worker was fired. Porter brought an action under Title VII, alleging hostile work environment and constructive discharge for engaging in a protected activity. The district court granted summary judgment to Erie Foods. Porter appeals.

In their opinion, Judges Posner, Ripple and Rovner (concurring) affirmed. With respect to the hostile work environment claim, the Court noted the elements of the claim: that Porter was the subject of harassment, that it was based on race, that it was so severe or pervasive so as to alter his working conditions, and that there is a basis for employer’s liability. The Court found the first three elements met. With respect to employer liability, however, the Court noted that an employer can avoid liability if it takes prompt and appropriate action that is likely to prevent a recurrence of the conduct. The Court concluded that Erie Foods had done just that -- the noose was taken down, there was an immediate inquiry, supervisors were informed, human resources met with the entire shift, the anti-harassment policy was reiterated, and individual meetings were held with many of the workers. The Court also noted that Porter’s own lack of cooperation hindered the investigation. Porter had a responsibility to provide his employer with additional information if he is to expect his employer to be able to respond effectively. On the record, the Court found Erie Foods not liable. On the constructive discharge claim, the Court explained that an employee must show working conditions “so intolerable” that any reasonable person would resign. Again, based on Erie Foods’ reasonable response to the initial incident and Porter’s failure to bring the additional incidents to the company’s attention, the Court concluded that Porter failed to establish a constructive discharge. Since there is no constructive discharge, Porter’s retaliation claim fails.

Judge Rovner concurred. She agreed with the majority that a reasonable juror could find that the company acted reasonably. She disagreed, however, with the majority’s treatment of the act of Porter’s supervisor displaying the noose, even if innocently, on her bulletin board for hours. Since Porter never complained of that conduct, however, he is not entitled to complain that the company failed to respond to it or correct it.

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NEMSKY v. CONOCOPHILLIPS COMPANY (August 3, 2009)

George Nemsky had been an engineer at ConocoPhillips’ Wood River Refinery for over twenty years and had a solid reputation. He was represented by Local 399 of the International Union of Operating Engineers (the Union). In 2004, ConocoPhillips adopted a substance abuse policy which provided for random drug and alcohol testing. It also provided that any employee who had a confirmed positive test result would be terminated. Although the Union filed a collective grievance over the company's adoption of the policy as well as an unfair labor practice charge, it eventually entered into a Memorandum of Agreement with the company in which it agreed not to grieve a termination under the policy. In 2006, Nemsky was selected for a random drug and alcohol test shortly after he used solvent to remove cement from his shoes. The test came back as a confirmed positive. ConocoPhillips terminated Nemsky's employment. The Union indicated its intent to arbitrate his termination. Nemsky filed an action against the Union and ConocoPhillips with the NLRB, complaining that the Union and ConocoPhillips never arbitrated his termination. Nemsky filed suit against both ConocoPhillips and the Union. Nemsky alleged that ConocoPhillips breached the Collective Bargaining Agreement and that the Union had breached its duty of fair representation. The district court granted summary judgment to defendants. Nemsky appeals.

In their opinion, Judges Flaum, Wood and Tinder affirmed. The Court identified Nemsky's claim as a "hybrid 301" action. In such an action, Nemsky must prevail on both his claim that the company breached the Collective Bargaining Agreement and his claim that the Union breached its duty of fair representation. The Court first addressed the fair representation claim. In order to prevail on that claim, the Court noted that Nemsky must show that the Union’s conduct was arbitrary or discriminatory or in bad faith. Nemsky argued that the Union acted arbitrarily in agreeing to the Memorandum of Understanding. The Court concluded otherwise. The Union’s unfair labor practice charge had been dismissed and no other union in the country had been successful in challenging the company's policy. The Court did, however, note that there was evidence that the Union failed to arbitrate Nemsky's termination after he filed his charges. The Court concluded that that was enough to preclude summary judgment on the fair representation aspect of Nemsky's claim. With respect to the company's breach however, the Court concluded that the Union’s agreement to the Memorandum of Understanding defeated any allegation that Nemsky's termination was a breach of the Collective Bargaining Agreement. Since he was required to prevail on both aspects of the hybrid claim, the Court affirmed the lower court's ruling.

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SMITH v. DUFFEY (August 3, 2009)

Jack Smith sold his company and its intellectual property to Dade Behring, Inc. He received, as part of the consideration, options to purchase 20,000 shares of Dade Behring stock. He soon left the employ of the company. He agreed to accept $1.4 million in cash, while retaining his options. A few months later, the company entered bankruptcy. Smith's options were extinguished as part of its reorganization. Smith sued several officers of the company, alleging that they had a duty to disclose at the time of this termination agreement the fact that the company would soon enter bankruptcy. The district court dismissed his fraud claim for failure to state a cause of action. Smith appeals.

In their opinion, Judges Cudahy, Posner and Kanne affirmed. The Court stated that when the fraud alleged is the failure to disclose something, the plaintiff must establish the presence of a duty. A duty can arise in a fiduciary relationship. In the absence of relationship, it can arise when silence would be misleading because of some other statement made by the defendant. Here, the Court concluded that the defendants did not say anything that lulled Smith into thinking the company was doing well. In fact, the Court noted that the defendants advised Smith that the company was in trouble and was seeking an "exit strategy." The Court concluded that Smith's claim was without merit.

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VALENTINO v. SOUTH CHICAGO HEIGHTS (July 30, 2009)

Sandra Valentino worked for the Village of South Chicago Heights for several years. In 2001, she became suspicious of Mayor David Owen's hiring practices. She was aware that the Village employed many of the mayor's friends and family members. She believed that many of these employees were on a “ghost payroll,” i.e., being paid for work they did not perform. She shared her concerns with William Bramanti, a former village employee who quit as a result of a dispute with the mayor. Bramanti submitted a FOIA request to the village for employee time records. At the same time, Valentino began to make copies of the daily employee sign-in sheets. In February of 2003, Bramanti accused the mayor publicly of ghost payrolling. The very next business day, the Village Administrator searched Valentino's desk, found the copies, and fired Valentino when she arrived for work. Valentino filed a § 1983 action against the Village, the mayor and others. She alleged retaliation in violation of her First Amendment rights. The district court granted summary judgment to the defendants. Valentino appeals.

In their opinion, Judges Rovner, Evans and Williams reversed and remanded. The Court first looked to whether Valentino's speech was constitutionally protected, i.e., whether she spoke as a private citizen on a matter of concern. The Court found it "well-established" that speech which protests government waste is entitled to constitutional protection. Although the Court recognized that Valentino had a private interest in determining whether she was receiving proper compensation, it concluded that her speech was protected since she was not motivated solely by those personal interests. The Court next addressed whether there was evidence that the protected speech was a motivating factor in her termination. The Court found the circumstantial evidence -- knowledge of her relationship with Bramanti, the search of her desk, the search and firing the day after Bramanti's public accusations, and a comment by the mayor threatening her employment -- sufficient to take that issue to a jury. That same evidence, as well as the fact that the sign-in sheets were on public display and were simply copied by Valentino, was enough for the Court to conclude that a jury could also find the village's stated reason for her termination pretextual. Thus, the Court reversed the summary judgment for the defendants. With respect to the Monell claim, the Court stated that the Village could be liable for the constitutional violation if it was caused by an individual with final policymaking authority. The question for the Court was whether Owens had final authority on matters of hiring and firing. The Court concluded that the evidence was conclusive that Mayor Owen made personnel decisions for the village without any meaningful oversight, and thus had final authority. The Court reversed the district court with respect to the village's liability under Monell. Finally, the Court rejected defendants' argument that the Illinois Tort Immunity Act immunized them. That Act immunizes village officials from certain discretionary policy decisions. The decision to fired Valentino was not a policy decision -- the defendants are not entitled to immunity.

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MARTINO v. MCI COMMUNICATIONS SERVICES, INC. (July 28, 2009)

MCI hired Guy Martino in 2005 at the age of 54. He was hired as a business solutions consultant and provided support to the company's sales force. Although he was not directly responsible for sales, he did receive commissions on the sales to which he was assigned. Martino was assigned to and received commissions for one blockbuster deal in mid-2005. Other than that one deal, however, Martino's performance was generally lacking. In fact, even the lead salesman on the large deal was quite critical of his individual contribution. MCI merged with Verizon in early 2006. As a result, Steve Rumstein, his group head, was asked to come up with a list of individuals least likely to be strong contributors in the future. Rumstein identified six employees, including Martino. He based his selection on geography, ability, credibility with sales staff and sales performance. With respect to ability, Rumstein focused on a new service being offered by Verizon with which Martino was not well-versed. The five employees on the list other than Martino ranged in age from 33 to 45. Rumstein submitted the list to Ed Franklin, his superior. Franklin decided to fire Martino for all the same reasons that led to his inclusion on the list. Martino brought an action under the Age Discrimination in Employment Act (ADEA). The district court granted summary judgment to MCI. Martino appeals.

In their opinion, Judges Cudahy, Evans and Tinder affirmed. The Court noted that the sole evidence of age discrimination was Martino's allegations that his direct supervisor, Bob Gross, sometimes use "old-timer" to describe him. Under the direct method of proof, Martino relied on the cat's paw theory since Gross was not the decision maker. The Court rejected the theory: there was weak evidence of discriminatory intent to begin with, there were two layers of bias-free decisions, and Rumstein and Franklin both considered a host of legitimate factors. The Court concluded that Martino did not come close to the "singular influence" standard necessary to establish a cat's-paw case. With respect to the indirect method, the Court concluded that Martino failed with respect to two of the elements: that he met the company's performance expectations and that the company treated similarly situated employees under 40 more favorably. First, the record was replete with evidence of Martino's performance limitations. Second, a number of younger employees were let go along with Martino. Although the company did keep several employees under 40, the Court had no trouble concluding that they were not similarly situated.

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CASNA v. CITY OF LOVES PARK (July 24, 2009)

From 1996 through 2003, Mary Casna worked for the City of Loves Park in two different positions. Though she had a serious hearing impairment, it did not interfere with her performance. In her second job, Casna and one of her superiors did not enjoy a good working relationship. The City transferred her to a temporary police clerk position for six months in order to evaluate her performance in a less volatile atmosphere. Casna's hearing impairment became an issue. In one particular episode, Casna explained to her supervisor, Kay Elliot, that she had not heard her make a request. Elliot snapped: "How can you work if you cannot hear?" Casna accused Elliot of being discriminatory. Elliot consulted with her supervisor and prepared a written performance evaluation, even though Casna was only two months into the job. At the police chief's request, and based on the negative evaluation, the Mayor fired Casna. Casna brought suit against the City, the Mayor and the Police Chief. She alleged that she was fired in retaliation for her complaints of discrimination. She also alleged that the City violated Due Process by discharging her without a hearing. The district court granted summary judgment to defendants. Casna appeals.

In their opinion, Judges Manion, Rovner and Sykes reversed and remanded. On the due process claim, the Court stated that Casna must establish a property interest that is guaranteed by the Constitution but found in Illinois law. Relying on Illinois’ civil service statute, the Court concluded that her first position was exempt but that her second job was not exempt (although the resolution appointing her said it was). Although the Court agreed that a temporary position (her third job) is normally exempt, the Court also concluded that the City could not transfer Casna out of a protected job into an unprotected job and then fire her without process. The Court also rejected the City’s reliance on the requirement that a protected employee obtain her job through the civil service process. Since it was the City that wrongfully tried to make the second position exempt, the Court held that it was estopped from relying on that requirement. Casna is entitled to prove her damages, if any, arising from the lack of process. The Court also reversed the lower court on the retaliation claim. It concluded that Casna’s single statement to Elliot complaining of discrimination, though informal, was sufficient to amount to “protected activity.” Finally, although the Court cautioned that suspicious timing is rarely enough to establish a triable issue on causation, it concluded that it did here, where the police chief recommended her termination the day after the protected activity.  

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HOBBS v. CITY OF CHICAGO (July 21, 2009)

Kelly Hobbs was an African-American woman employed by the City of Chicago's Department of Transportation since 1989. She began her employment as a truck driver and was promoted to Lot Supervisor in 2000. She applied for a Foreman position in both 1997 and 2000and was rejected both times in favor of white males. She filed a charge of gender and race discrimination in January of 2005, shortly after she found out that another white male had been promoted to Acting Foreman. She complains that, after her discrimination charges were filed, she was disciplined on several occasions, her car was vandalized and her job duties were changed. In 2006, she brought suit against the City, alleging race and gender discrimination and retaliation claims against the City under Title VII, race discrimination and retaliation claims against the individual defendants under § 1981, and a hostile work environment claim against the City. The district court granted summary judgment to the defendants on all claims. Hobbs appeals.

In their opinion, Judges Bauer, Kanne and Williams affirmed. The Court considered the Title VII and § 1981 race and gender discrimination claims together. Under the indirect method of proof, the Court concluded that Hobbs failed to establish she was passed over in favor of a person similarly or less qualified than she. The record showed that the male was more qualified, at least with respect to those skills that were part of the job qualifications. Hobbs also failed to show that the City's reasons for promoting him were pretextual. The Court admitted that the process by which he was promoted was somewhat questionable and may suggest favoritism, but did not prove discrimination. Her retaliation claims failed as well. She failed to show a materially adverse job action and she failed to establish a causal connection between her charges and the discipline imposed on her. The Court was troubled by her charge of automobile vandalism and the City's failure to investigate it, but concluded that the mere fact that it occurred after she filed charges was not enough to survive summary judgment. Finally, the Court concluded that the same facts upon which she based her retaliation claim were similarly insufficient to rise to the "severe or pervasive" threshold of hostile work environment.

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UNITED STATES v. ROLLS-ROYCE CORPORATION (June 30, 2009)

Curtis Lusby was an engineer at Rolls-Royce Corp. He became suspicious that the company was falsely certifying that one of its aircraft engines met government specifications so he informed his superiors. He claims that the company fired him for doing so. He brought suit under the False Claims Act, alleging that the company punished him for preparing to bring an action under the statute. The parties jointly dismissed the suit in 2003. However, two months earlier, Lusby had filed a qui tam action under seal. The court dismissed the action for failure to plead fraud with particularity and because of the claim preclusion effect of the earlier lawsuit. Lusby appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed in part and reversed in part. The Court first addressed claim preclusion. It noted its 2007 decision in Cole. In Cole, the Court held that a person who did not prevail on a Title VII claim cannot later bring both a personal and qui tam claim under the False Claims Act. Here, however, Lusby disputes one of the elements of claim preclusion -- that the cases involve the same parties (Cole conceded the issue). The Court noted that the United States is not an actual party to a qui tam suit unless it intervenes. It is, however, the real party in interest. In addition, the Court identified several procedural requirements for qui tam litigation that would make it very difficult to bring a personal claim in the same suit. The Court concluded that the resolution of an employee's personal suit does not preclude a later qui tam suit. With respect to the particularity issue, the Court stated that the complaint contained quite specific allegations of fraud. It rejected Rolls-Royce's argument that a specific allegation of the details of the invoices was required. The Court did affirmed the lower court with respect to Lusby's allegations that Rolls-Royce committed fraud during the earlier settlement negotiations.

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STEPHENS v. ERICKSON (June 30, 2009)

Lesley Stephens, an African American, has worked for the City of Chicago since 1979, except for a disability leave from 1988-1993. He has been a truck driver, an acting foreman, and an accident adjuster, all within the Department of Fleet Management. He filed a lawsuit against the City in 1997, alleging that it engaged in racially discriminatory hiring and promotion practices. Shortly after he settled the lawsuit in 2004, Stephens applied for four promotions. He was passed over each time. He again brought suit, alleging violations of § 1981 and Title VII. He claims that the City retaliated against him for his earlier lawsuit and his complaints of discrimination. The district court granted summary judgment to the City. Stephens appeals.

In their opinion, Judges Kanne, Wood and Sykes affirmed. The Court stated that it would apply the same elements to the claims under § 1981 and Title VII. Stephens chose to establish his retaliation claim under the direct method of proof. The principal issue on appeal was the causal connection between Stephens' protected activity and the City's failure to promote him. The Court set out the promotion procedure in detail – and stated that Stephens produced no evidence that any of the several employees who interviewed him for the promotions even knew of the earlier lawsuit or his prior complaints of discrimination. The Court noted that in each case, the City interviewed several applicants, rated the applicants on the same criteria, and recommended the applicant with the highest score. The Court also rejected Stephens' argument that the head of the department retaliated against him by pre-selecting his preferred candidate by choosing him for an "acting" position, leading the interviewers to a predetermined selection. Nothing in the record linked the department head to any of the interviews or any of the interviewers. The Court concluded that Stephens simply had not produced evidence sufficient to create an inference of retaliation. The Court also concluded that the retaliation allegations other than failure to promote (menial job assignments, intimidation, segregation, etc.) would not dissuade a reasonable employee from making a charge of discrimination and were therefore not "materially adverse" and actionable.

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FARR v. ST. FRANCIS HOSPITAL AND HEALTH CENTERS (June 29, 2009)

David Farr was a respiratory therapist at St. Francis Hospital. In 2000, he was the only male among the seven respiratory therapists in his department. There was a single computer in the department for the use of all the therapists. Although the hospital policy was for each therapist to log on with a unique password before each use, the practice was quite different. Typically, the first user of the day logged on with his or her password and all later users piggybacked on that login. When one of the therapists discovered inappropriate material on the computer, the hospital conducted an investigation. It found that: a) pornographic and hacking sites were accessed at the computer, b) Farr was logged on to the computer at the time the sites were accessed, and c) that Farr was the only one working on one particular day when a substantial amount of the activity took place. Farr eventually admitted that he was responsible for visiting some of the sites and that the others may have been generated by a computer virus during his use of the computer. The hospital terminated Farr's employment. Farr sued the hospital, alleging gender discrimination and a breach of implied covenant of fair dealing based on the employee handbook. The court granted summary judgment to the hospital. Farr appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Evans affirmed. Although Farr asserted that he could prove his claim by both the direct and indirect methods, the Court disagreed. Neither test resulted in a conclusion that Farr was the victim of gender discrimination. In fact, the Court stated, the hospital's investigation convinced it that he was the one responsible. He even admitted he accessed the inappropriate sites. Nothing in the record showed that the hospital's reasons were pretextual. The Court also affirmed with respect to the state law claims. Farr's covenant of fair dealing claim is inconsistent with Indiana law. His defamation claim fails because the hospital's report was privileged, in that it was used during the grievance proceedings that he himself initiated. 

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KASTEN v. SAINT-GOBAIN PERFORMANCE PLASTIC CORP. (June 29, 2009)

Kevin Kasten worked at one of Saint-Gobain's facilities in Wisconsin. In 2006, Kasten received three warnings regarding his use of the on-site time clock. The third warning included a statement that it was the last step of the disciplinary process and that another violation could result in further discipline, up to termination. Kasten alleges, and Saint-Gobain denies, that he verbally complained about the legality of the time clock’s location about the same time he received the third warning. He alleges that his complaints consisted of a) telling his supervisor, b) telling a human resources representative, c) telling a lead operator and d) telling the lead operator he was considering a lawsuit. Saint-Gobain suspended Kasten after his fourth violation and later terminated his employment. Kasten alleges, and Saint-Gobain denies, that he also complained about the legality of the clock’s placement at a meeting regarding his suspension. Kasten brought an action under the Fair Labor Standards Act, alleging that he was terminated in retaliation for his complaints. The court granted summary judgment to Saint-Gobain. Kasten appeals.

In their opinion, Judges Bauer, Flaum and Kapala affirmed. Kasten alleges that Saint-Gobain violated the FLSA when it terminated him after he "filed any complaint." The Court focused on two issues: whether the FLSA's use of the term "complaint" includes informal, intra-company complaints not formally filed with any body and whether it includes wholly verbal complaints. The district court had answered the first question yes but the second question no. With respect to the intra-company complaint issue, the Court relied on the plain language of the statute and the majority of other appellate courts to conclude that "any complaint" includes internal complaints. If then decided, however, that purely verbal complaints are not protected. The Court relied again on the plain language of the statute and the use of the word "file," which connotes the use of a writing, and the fact that Congress used broader language (i.e., “opposed any practice”) in analogous provisions of other statutes.

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 UNITED FOOD AND COMMERCIAL WORKERS v. ILLINOIS-AMERICAN WATER COMPANY (June 26, 2009)

Glenn Williams was a wastewater treatment operator for Illinois-American Water Company ("IAWC"). IAWC discovered that Williams was operating without a required Illinois EPA license. Because it was Williams' second offense, it was punishable by termination. Instead of firing Williams, however, IAWC offered him a Last Chance Agreement ("LCA"). Under the LCA, Williams was suspended without pay for 30 days, he was required to obtain his license within six months, and he was required to repay the extra compensation he received as a result of IAWC's belief that he was licensed properly. The LCA also provided that failure to comply would result in Williams' immediate termination and any disputes regarding the agreement would be resolved through the collective bargaining agreement’s arbitration procedure. The United Food and Commercial Workers Union, which represented Williams, filed a grievance contesting the LCA's validity. When Williams failed to make repayment arrangements, IAWC terminated his employment. The union filed a second grievance. The grievances were consolidated and brought before an arbitrator. The arbitrator ruled against the union on the validity of the LCA but ordered Williams reinstated. He concluded that the termination was improper because of the pending, good faith challenge to the LCA itself. On review, the district court confirmed the arbitration award. The union appeals.

In their opinion, Judges Posner, Kanne and Wood affirmed. The Court identified its limited role in reviewing arbitrator's awards. As long as an arbitrator bases his decision on an interpretation of the agreement, the court will enforce the award. Here, the arbitrator confronted a situation that he thought was not covered by the agreement. One provision gave IAWC the absolute right to terminate Williams' employment. Another provision gave the union the right to challenge the validity of the LCA. The arbitrator concluded that the agreement contained an implied term – that Williams' employment could not be terminated during the pendency of a good faith grievance over the validity of the agreement itself. Since his award was based on an interpretation of the agreement, the Court affirmed.

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HALLINAN v. FRATERNAL ORDER OF POLICE OF CHICAGO LODGE NO. 7 (June 25, 2009)

Shawn Hallinan and Wayne Harej were Chicago police officers and members of the police union, the Fraternal Order of Police of Chicago Lodge No. 7 (the Union). They led an effort to unseat the Union’s president and his organization in early 2005. During the course of the campaign, they discovered that the president had underreported his income. They reported the matter to the Attorney General and discussed it publicly. The president was, nevertheless, reelected. The Union soon suspended, and then expelled, the two men from the Union. At the Union's request, the City of Chicago converted the two men into "fair-share payers." Fair-share payers are those members of the Police Department who are not Union members and do not pay Union membership dues but who contribute a "fair-share" for the Union's continued representation of them in matters concerning their wages, hours and working conditions. Hallinan and Harej brought an action against the Union under section 1983 alleging violations of the First and Fourteenth Amendments. The court dismissed the action for plaintiffs’ failure to plead state action. Plaintiffs appeal.

In their opinion, Judges Rovner, Wood and Sykes affirmed. The allegations of constitutional violations in the complaint, noted the Court, are actionable only against conduct of the government -- not against private conduct. Unions, of course, are not government actors. A deprivation of a constitutional right may be actionable against a private actor in certain limited circumstances. The Court noted several examples: when the state compels the action, when the private actor is only nominally private, when the state delegates its function to a private actor, etc. Here, the state action alleged is that the Union is the sole collective bargaining unit for the Chicago Police. However, the acts complained of were not taken in concert or in agreement with the City. They were exclusively internal actions. The Court concluded that there was not enough evidence of entanglement by the City to give rise to state action. Although the Court agreed with the district court that the claim should be dismissed for failure to allege state action, it corrected the district court’s categorization of it as a lack of subject matter jurisdiction. An absence of a proper allegation of state action is simply a failure to plead an essential element of the claim.

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BODENSTAB v. COUNTY OF COOK (June 22, 2009)

Dr. Philip Bodenstab was an anesthesiologist at Cook County Hospital from 1993 until 2002. In February of 2002, Bodenstab, recently diagnosed with cancer, had a telephone conversation with a friend during which he threatened to kill his supervisor and co-workers. The friend contacted theFBI and Chicago police. The FBI and police contacted the director of the hospital and told him that the threats were credible. The hospital suspended Bodenstab with pay. Over the next several months, Bodenstab went through a series of assessments, evaluations and treatments. After his discharge from treatment and evaluation by the hospital's own psychiatrist, the hospital conducted a pre-disciplinary hearing on the major infraction of threatening to kill coworkers. The hearing officer concluded that the infraction warranted discharge. The hospital fired him. Bodenstab brought an action against Cook County and several individuals seeking to overturn the administrative decision and bringing affirmative allegations that his discharge violated the Americans with Disabilities Act, the First Amendment and due process. The district court granted summary judgment to the defendants. Bodenstab appeals.

In their opinion, Chief Judge Easterbrook and Judges Flaum and Manion affirmed. The Court rejected each of Bodenstab's arguments in turn. The ADA disparate treatment claim failed because Bodenstab presented no evidence challenging the sincerity of the hospital's belief that he threatened to harm his co-workers. Even if they were mistaken, the Court held that Bodenstab could not show pretext if they reasonably believed the threats. The ADA failure to accommodate claim failed because there is no obligation to accommodate conduct -- and conduct was the reason Bodenstab was fired. The First Amendment claim failed for the same reason the ADA disparate treatment claim failed. Bodenstab was fired because he threatened to kill coworkers -- not because of his speech -- and Bodenstab introduced no evidence otherwise. The Court next rejected Bodenstab's common-law certiorari claim to review the administrative decision on the merits. That claim presents the question of whether the record contains any evidence which fairly tends to support the findings -- it does. Finally, the Court concluded that Bodenstab was afforded adequate notice and a pre-termination hearing that complied with the mandates of due process.

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ROTH v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY (June 5, 2009)

The plaintiffs, Bonnie and Connie Roth, were insurance agents. Each had an agency agreement with American Family Mutual Insurance Company. The agreement provided that it could be terminated for "undesirable performance" only with six months notice and an opportunity to correct. It also provided that it could be terminated without notice if an agent engaged in "dishonest, disloyal or unlawful" conduct. One of the agents signed an applicant's name on a insurance policy application at the applicant’s request. The other signed the name of a different agent on a policy certification, also with authorization. American Family terminated their agency agreements. The Roths brought suit for breach of contract. The district court granted summary judgment to American Family. The Roths appeal.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed. The Court considered whether signing another's name is "dishonest" under the agreement. The Court appreciated that neither agent gained personally by her conduct and that a typical element of dishonesty is theft. However, the Court went on to consider other meanings of dishonesty, including breach of trust and deceitful behavior. The Court concluded that the act of signing another’s name without any indication of authority was deceptive and fit within the agreement’s provision allowing termination without notice.

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CREWS v. CITY OF MT. VERNON (June 2, 2009)
 

Ryan Crews is a member both of the Mount Vernon Police Department and the Army National Guard and has been so for years. His work obligations to the department and the military frequently conflict. Since 1997, however, the department has allowed Crews to adjust his work schedule by moving any weekend department shifts that conflict with his guard exercises to the regular workweek. Thus, Crews was paid for a full week's work without using vacation or other time-off. Between 2000 and 2003, the department offered the same arrangement to three additional guard members hired as police officers. Non-guard members had no comparable opportunities to reschedule workdays. When the department hired two more guard members in 2006, the department rescinded the policy. The additional guard members in the department made implementation of the policy too costly. Crews brought an action against the City under the Uniformed Services Employment and Reemployment ct ("USERRA"), alleging that the rescission of the policy denied him a benefit of employment. The district court granted summary judgment to the City, ruling that § 4316(b) did not require the City to provide scheduling benefits not generally available to members of the department not in the National Guard. Crews appeals.

In their opinion, Judges Manion, Evans and Tinder affirmed. The Court noted that USERRA contains a general anti-discrimination provision in § 4311 as well as the § 4316 requirement that service members who are on leave to fulfill their obligations are entitled to benefits generally afforded other employees on similar leave. Addressing § 4316, the Court held that Crews was entitled only to equal treatment, not to the preferential treatment the policy afforded. The Court further held, however, that § 4311 could also apply. The Court found some basis for Crews' claim in the statute's "any benefit of employment" language. It concluded, however, that the better interpretation of the statute is that a "benefit of employment" is one afforded military and non-military employees alike. Thus, Crews could not prevail under § 4311, either.

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LUCERO V. NETTLE CREEK SCHOOL CORPORATION (May 29, 2009)

Sharon Lucero, a female Hispanic, was hired by the Nettle Creek School Corporation in 2001 to teach English at the Hagerstown Junior - Senior High School (the "School"). The School served students in grades 7 through 12 in the same building. Lucero was informed, at the time of her hire, that she could be assigned to teach English at any of the grade levels. For her first two years, Lucero taught 7th and 8th grade English, respectively. For the third year, the School assented to her request to teach 12th grade English. The year progressed quite differently than her prior years of service. The principal criticized her performance, the students complained of her teaching style, and the parents complained of her grading policies, to name just a few of her problems. In addition, two specific incidents late in the year stood out. In one, a student showed a photograph in class of a partially naked classmate. In another, a group of students left several Playboy magazines in her classroom. The students involved in these two incidents were all suspended. After the school year, the School hired a new English teacher, a white male. The school assigned the new teacher to 12th grade English and reassigned Lucero to 7th grade English. Lucero sued the School, challenging her reassignment under theories of retaliation, discrimination, hostile work environment and breach of contract. The district court granted summary judgment to the School. Lucero appeals.

In their opinion, Judges Bauer, Flaum and Evans affirmed. The Court addressed each of Lucero’s legal theories in turn. With respect to her retaliation claim, the Court noted that she was required to establish that she suffered a materially adverse employment action. The Court addressed the reassignment in light of the Supreme Court's decision in Burlington Northern. Burlington Northern tells us that a court should apply an objective standard for assessing whether the reassignment might have dissuaded a reasonable person from making a charge of discrimination. Here, Lucero was reassigned to teach the same subject in the same building under the same conditions. The Court concluded that her reassignment was not a materially adverse action. The Court similarly found that Lucero failed to demonstrate a materially adverse employment action with respect to her discrimination claim, albeit under a different test. Since her compensation and work conditions were unchanged, Lucero attempted to establish that her reassignment was an adverse employment action by asserting that it would negatively impact her career prospects. The Court found that she failed to submit adequate evidence of a negative career impact and upheld the lower court on the discrimination claim. Next, the Court concluded that Lucero's allegations of hostile work environment failed as a matter of law. Although depicting inappropriate behavior, the Court concluded that they were isolated incidents, were not related to her gender or national origin, and did not support employer liability. Finally, the Court summarily rejected Lucero's breach of contract claims.

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RYL-KUCHAR v. CARE CENTERS, INC.(May 11, 2009)

Kathleen Ryl-Kuchar began working as a dishwasher at Care Centers, Inc. (“CCI”) at the age of 15. Seventeen years later, she held the salaried position of dietary consultant. Ryl-Kuchar became pregnant with triplets in 2002. She continued working on site until May of 2003, at which time she began working from home. She performed her normal duties with the blessing of CCI management, although her total hours dropped below 35 hours a week. With the help of her family, Ryl-Kuchar returned to work full-time shortly after she gave birth. Her return was short-lived, however. She soon commenced FMLA leave and never returned, deciding instead to resign. In mid-November, CCI’s employee benefits arm determined that Ryl-Kuchar had become a part-time employee in June and had therefore lost her eligibility for medical benefits. It retroactively canceled her health insurance effective the month before she delivered the triplets. Ryl-Kuchar brought an action under the FMLA, arguing that CCI interfered with her right to health insurance and retaliated against her for her decision to take FMLA leave. The jury awarded her damages. CCI appeals from the district court's denial of its motion for judgment notwithstanding the verdict.

In their opinion, Judges Flaum, Evans and Williams affirmed. The Court noted the heavy burden necessary to overturn a jury verdict. It reviewed the evidence – CCI’s inconsistent positions, the timing of its decision, and its concern about rising health care costs -- and found it sufficient to support the jury’s conclusion that Ryl-Kuchar met her burden of proof on both the retaliation and interference claims. The Court remanded for calculation of a fee award.

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MADDEN v. ROLLS ROYCE CORP. (April 29, 2009)

Rick Madden, a member of the U.S. Air Force Reserve, was hired as a temporary employee at Rolls-Royce Corporation. He represented, falsely, that he was a graduate of Purdue's engineering program. He did not impress his supervisor with his skills. At the end of the temporary period for which she had been hired, Rolls-Royce let him go. He then applied for a job with Data Systems and Solutions (DS&S), without success. Madden brought suit against Rolls-Royce and DS&S, alleging that both violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) by discriminating against him on the basis of his military service. The district court granted summary judgment to the defendants. Madden appeals.

In their opinion, Judges Bauer, Posner and Rovner affirmed. Even if a plaintiff under USERRA establishes that his military service was a motivating factor in his discharge or failure to be hired, the defendant is given the opportunity, and the burden, to show that its actions would have been taken even in the absence of military obligations. Here, the defendants’ evidence is compelling and barely contested. Madden’s performance at Rolls-Royce was unsatisfactory. The company was not going to retain him when it had to lay off someone and his co-worker was a better performer. With respect to DS&S, the Court concluded that the company surely would have checked his record and his resume before offering him a job. His poor performance at Rolls-Royce and his resume fraud would justify its refusal to hire.

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WINSLEY v. COOK COUNTY (April 22, 2009)

Marsalette Winsley, an African-American woman, worked for the Cook County Department of Public Health. In December 2003, she was a Family Case Manager, which required her to drive to her clients' homes. In early 2004, she was injured in a car accident. After a leave of absence, she was approved to return to work part-time, conditioned on minimal driving. For more than three years, the County attempted to accommodate her limitations, assigning and reassigning her to different tasks at different locations. Winsley took several more leaves of absence during that time. Her supervisors evaluated her poorly during those years for her problems with attendance and timeliness. Eventually, in May of 2007, Winsley's supervisor asked for improvement in her timeliness and absenteeism rates. Winsley quit her job without notice and never returned. She filed an action alleging that the County violated the Americans with Disabilities Act ("ADA") and Title VII and engaged in retaliation. The district court granted summary judgment to the County on all counts. Winsley appeals.

In their opinion, Judges Bauer, Ripple and Wood affirmed. The Court stated that the ADA requires that the claimant have a disability - defined as "a physical or mental impairment that substantially limits one or more major life activities." Although the statute does not contain a definition of "major life activity," an EEOC regulation does. The Court noted that driving, Winsley’s only potential impairment, is neither on the list nor does it share much in common with the items on the list (e.g., walking, seeing, hearing, breathing, etc.). The Court therefore concluded that driving did not qualify as a major life activity. The Court recognized that Winsley's inability to drive could impair a different major life activity (e.g., working), but concluded that she did not meet her burden of establishing a genuine issue of material fact on that claim. Therefore, her ADA claim failed. With respect to her Title VII claim, the Court concluded that she failed to meet her burden for several reasons: a) her only direct proof were her own bare assertions, b) she was unable to identify a similarly situated employee, and c) she was unable to rebut the County’s evidence that she was not meeting its legitimate expectations. Finally, with respect to her retaliation claim, the Court concluded that her evidence fell far short of the "hostile and abusive working environment" standard.

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CONSTRUCTION AND DESIGN CO. v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES (April 21, 2009)

Construction and Design Co. (CDC), a small construction company with three employees, is organized as a Subchapter S Corporation. As such, its income is taxed directly to its shareholders. CDC petitioned to obtain a visa to add a Ukrainian carpenter to its staff. The Department of Homeland Security denied the petition, ruling that CDC could not afford the proposed $50,000 salary for the carpenter. The district court affirmed. CDC and the alien appeal.

In their opinion, Judges Posner, Flaum and Wood affirmed. In order to obtain a visa, an employer must demonstrate to the Department of Labor that no U.S. citizen is qualified to do the work and must satisfy the Department of Homeland Security that it can afford the proposed salary of the alien. The Court pointed out that tax returns, relied on by the government, are not reliable indicators of a company's ability to afford another employee, particularly with respect to a Subchapter S company. Tax considerations can frequently influence the way income is treated. Nevertheless, the employer has the burden of proof with respect to its ability to pay. Here, the company's gross receipts in the year in question were only $400,000, the alien was already working for CDC in a temporary capacity for $23,000 less than his proposed permanent salary, there was no evidence of new business or a new contract with which to pay the new salary, and there was very little cushion in the company’s expenses. Although the Court hypothesized several scenarios under which the hiring might make economic sense, the employer never established an evidentiary record that met its burden.

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INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150 v. WARD (April 16, 2009)

Local 150 represents over 22,000 union members in Illinois, Indiana and Iowa. Joseph Ward was its treasurer 1986 until 2007. In 1994, the president of the local asked Ward to purchase property adjacent to the local’s headquarters. Instead of purchasing the property for the union, however, Ward participated in the purchase of the property by an investment group. The group sold the parcel several years later at a substantial profit. Local 150 filed a complaint against Ward, alleging violations of § 501 of the Labor-Management and Reporting Disclosure Act of 1959 (the “Act”) and breaches of fiduciary duty. The district court dismissed the complaint, concluding that § 501 does not allow a labor union to bring a private cause of action. Local 150 appeals.

In their opinion, Judges Kanne, Williams and Sykes reversed and remanded. The Court started with the language of the Act. Section 501(a) imposes fiduciary duties, including a duty of loyalty, on a union’s officers and agents. Section 501(b) creates a federal cause of action for individual union members. Damages recovered under § 501 (b) inure to the benefit of the union itself. Before a union member may sue, she must make a demand that the union take appropriate action and then must receive the court’s permission, on a showing of good cause, to proceed. The Act is silent on a union’s ability to bring an action. On that threshold question, the Court first found no express cause of action under a plain reading of the Act. With respect to whether the Act contains an implied cause of action, the Court noted a split of authority between the Ninth in Eleventh Circuits. Relying on the Supreme Court’s holding in Alexander, the Court concluded that its task was to determine whether Congress intended to create both a private Right and a private remedy. The Court's analysis of the text and structure of § 501 led it to conclude that Congress did intend to create both a federal right and a federal remedy for a union.

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COLE v. STATE OF ILLINOIS (April 7, 2009)

Dynetta Cole was a receptionist for the State of Illinois. Her first year on the job was marked with many complaints about her performance, attendance and personality. After she was injured in a car accident, she took FMLA medical leave. She returned to work on a part-time basis after several weeks. Her performance and attendance issues continued. Cole’s supervisors ultimately presented her with an "employee improvement plan." The plan identified her attitude, her attendance and her performance as targeted areas for improvement. The plan required her to communicate more frequently about her schedule, become more aware of her tone and plan her daily schedule more efficiently. Her supervisors told Cole that she would be fired if she did not sign the plan. Cole refused to sign the plan -- Cole was fired. Cole brought suit against the State and her supervisors alleging retaliation for exercising her FMLA rights. The district court granted summary judgment to the defendants. Cole appeals.

In their opinion, Judges Manion, Evans and Tinder affirmed. The FMLA, stated the Court, makes it unlawful to terminate an employee for using FMLA leave. Cole chose the direct method of proof which required either an admission of discrimination or a "convincing mosaic" of circumstantial evidence that would allow the jury to infer discrimination. The Court agreed with the district court that Cole presented no evidence to suggest that her termination was anything more than her supervisors’ response to her refusal to sign the plan. Although her termination followed shortly after her leave, the Court noted that proximity in time by itself is rarely enough to create a material fact dispute. The court also rejected Cole's argument that the improvement plan itself constituted an adverse employment action. An adverse employment action must be one that would dissuade a reasonable employee from exercising her rights under the FMLA. Here, the improvement plan was merely her employer’s reasonable approach to improve her attitude and performance.

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SMART v. LOCAL 702 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (April 7, 2009)

Ronald Smart’s non-union electrical company was awarded a contract to perform electrical work at a sports complex. He claims that Local 702 threatened the owner of the sports complex and coerced him to replace Smart’s company with union electricians. Smart brought an action against the local under the Illinois Antitrust Act. He also brought state law unwarranted prosecution and malpractice claims against the union’s lawyers (claims arising from earlier legal actions against Smart by the union). The district court dismissed the antitrust claim, concluding that it was preempted by the National Labor Relations Act. It also dismissed the state law claims, holding that the malpractice claim could not be brought against a lawyer who had never represented Smart and that the unwarranted prosecution claim required that he prevailed in the underlying litigation (he did not). Smart appeals

In their opinion, Judges Ripple, Kanne and Tinder affirmed in part, reversed in part and remanded. The Court first addressed its jurisdiction. The Court observed that there was an apparent lack of diversity and lack of a federal question in the complaint. Although the union raised a federal preemption defense, federal preemption does not normally provide a basis for asserting jurisdiction. One exception to that rule is the "complete preemption" doctrine. When an area is completely preempted by federal law and Congress substitutes a federal cause of action, a claim purportedly based on state law is considered a federal claim. Here, the Court first concluded that Smart's state antitrust claim was preempted by federal law. Next, it noted that Congress provided a cause of action in 29 U.S.C. § 187 with respect to injuries resulting from a secondary boycott. The Court found "ample evidence" that Congress intended to convert state common-law antitrust complaints into federal claims. The Court therefore concluded that § 187 completely preempted Smart’s state law antitrust claim and provided an exclusive federal remedy. The Court remanded that part of the case to the district court for further proceedings. The Court agreed with the lower court's analysis of the state law unwarranted prosecution and malpractice claims.

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HAMPTON v. FORD MOTOR COMPANY (April 6, 2009)

Collette Hampton worked the night shift Ford's Chicago assembly plant. In the summer of 2004, she allegedly experienced sexual harassment and discrimination on her job. She filed a charge of discrimination in late 2005. While awaiting a resolution of her charge, she learned that Ford was offering a buyout package to eligible employees. The program was system wide, with the goal of reducing Ford's hourly workforce. The buyout came with a lump sum payment of $100,000 in exchange for a waiver of "all rights or claims" against Ford and a promise "not to institute any proceedings of any kind" against Ford. Hampton, knowing that she was scheduled to be laid off in 2006 anyway, applied for the package. She received a written description of the program, was invited to an informational meeting, and was instructed to consult with the company or her union if she had any questions. Hampton received and cashed Ford's check and left Ford's employ. Meanwhile, however, after she applied for the program and signed the release but before she received the check, she brought an action against Ford, alleging sexual discrimination and harassment in violation of Title VII. The district court granted summary judgment to Ford, holding that Hampton had released her Title VII claims as a matter of law. Hampton appeals.

In their opinion, Judges Kanne, Evans and sites affirmed. The Court first addressed Hampton’s argument that she never intended to waive her Title VII claims. The Court found no ambiguity in the waiver language. Relying on the principle, that an unambiguous contract must be enforced as written, the Court concluded that both the waiver language and the covenant language covered and barred her Title VII claims. Next, the Court addressed Hampton’s argument that her waiver was not knowing and voluntary. The Court agreed that the release of a federal right must be knowing and voluntary but concluded that Hampton failed to present enough evidence in support of her assertion. The Court relied on Hampton’s education, the clarity of the document, the time she had to consider it, her concurrent representation by counsel and the explanations provided or offered in concluding that her waiver was knowing and voluntary.

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RUJAWITZ v. MARTIN (April 2, 2009)

Mark Rujawitz was an at-will employee of theIllinois Department of Transportation (IDOT) for thirteen years. When he violated an injunction requiring him to keep his distance from his ex-girlfriend, IDOT fired him. A disciplinary panel reviewed the discharge and recommended a lesser level of discipline. Rujawitz was reinstated and his discipline was changed to a suspension without pay. Rujawitz brought a § 1983 action against the secretary of IDOT, alleging that he was denied his substantive due process rights. The district court dismissed the complaint on the ground that Rujawitz had no property right in continued employment. Rujawitz appeals

In their opinion, Judges Bauer, Posner and Rovner affirmed. In order to establish a due process claim, the court stated, Rujawitz had to demonstrate a constitutionally protected property interest. The Court looked to state law for that determination. The Court could locate no ordinance, law or employment agreement that changed Rujawitz's status from an at-will employee to one with an expectation of continued employment. The Court rejected Rujawitz 's position that the presence and use of the disciplinary procedures established a property interest protectable under the Fourteenth Amendment.

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SANDOVAL v. CITY OF CHICAGO (March 30, 2009)

Juan Sandoval and Sidney Pennix were Chicago police officers. They were also in the military reserve and on active duty in El Salvador and Iraq, respectively. When Chicago scheduled the examination for candidates for sergeant, Sandoval and Pennix requested an opportunity sit for the test. Chicago accommodated their requests by offering them the opportunity to take the test in, respectively, San Salvador and Frankfurt. They both took the test, passed and were placed on the eligibility list. They then filed suit pursuant to the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). They both allege that they should have been offered locations closer to where they were stationed and also seek compensation for the transportation cost to the testing locations. The district court granted summary judgment to the City of Chicago. Sandoval and Pennix appeal.

In their opinion, Chief Judge Easterbrook and Judges Kanne and Evans affirmed. The Court focused on the language of USERRA. It provides that a person serving in the military may not be denied a benefit of employment because of that service. In other words, said the Court, the Act requires an employer to treat persons on active duty the same as other employees. Here, Sandoval and Pennix seek an accommodation - not equal treatment. Chicago treated Sandoval and Pennix the same as it would have treated any other employee who was on leave for a non-military reason. The City did not violate USERRA.

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SMITH v. THE HOPE SCHOOL (March 30, 2009)

Tanum Smith was an aide at the Hope School, a residential facility for developmentally disabled children. On two different occasions in 2006, Smith was injured by students. After the second incident, Smith took some time off and received medical attention. Although an independent medical examination approved her return to work without restrictions, her primary care physician restricted her to light-duty and to assignments that did not require her to interact with the school's residents. The school assigned Smith to its dietary department so that she would not interact with residents. Later, she complained that a student approached her in the kitchen. She informed the school that she was leaving and would not return until the school provided her with a safe work environment. There is significant disagreement in the record over what happened next. What is not disputed is that Smith was absent from work many days and, when she submitted her FMLA paperwork, she had altered the physician’s certification form to add a diagnosis for "previous depression." The school found out about the alteration, denied her request for FMLA leave, and began disciplinary proceedings because of her absences. Ultimately, Hope School terminated Smith's employment because of the absences. Smith brought this action alleging that the school interfered with her FMLA rights and that they terminated her employment in retaliation for requesting FMLA leave. The district court granted summary judgment to Hope School. Smith appeals.

In their opinion, Judges Flaum, Williams and Kapala affirmed. The Court first addressed her interference claim. In order to prevail, the Court indicated that she must demonstrate that she was eligible for FMLA protection, that she was covered, that she was entitled to leave, that she provided notice, and that her employer denied her benefits. Here, the only issue is whether an employer can deny FMLA leave because an employee submits false paperwork. The Court agreed with the district court that an employer can deny a request for FMLA leave when an employee adds a diagnosis to the physician’s certification form without the physician's knowledge. The Court concluded that her retaliation claim was closely linked to the interference claim. Because Hope School was entitled to deny her request for leave, they were entitled to terminate her employment on account of her unexcused absences.

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HEITMANN v. CITY OF CHICAGO (March 25, 2009)

The City of Chicago and the police officers' union have agreed to a procedure for police officers to take compensatory time off in lieu of overtime pay. Under the Fair Labor Standards Act, a public employee who has accrued compensatory time off and has requested to use it is permitted to "use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency." Several officers with accumulated compensatory time off brought a suit against the City. They contend that they should be allowed to take a particular days of their own choosing unless their absence at that time would result in a shortage of available officers. Conversely, the City contends that it is the department's choice. In their view, an officer may submit a generic request for compensatory time off. The City then decides what days, if any, to allow. The magistrate judge below concluded that the City had no set procedure. The lack of procedure failed to ensure the rights of the officers. He issued a detailed injunction specifying the process the City must use in response to future applications. The City appeals.

In their opinion, Chief Judge Easterbrook and Judges Rovner and Williams vacated the injunction and remanded. As an initial matter, the Court noted that the Fair Labor Standards Act only allows injunctions in suits by the Secretary of Labor and only when the remedy at law is inadequate. Here, any failure of the City to honor the officers' time off rights is compensable by money. The unavailability of an injunction, however, does not mean that the officers are not entitled to a remedy. The Court concluded that the statutory language was not clear and included such open-ended words as "reasonable" and "undue." But the Court looked to an agency regulation that does address the issue. The agency's approach is not unreasonable and is thus entitled to deference under Chevron. The regulation defines "reasonable period" and "unduly disrupt" - and it does so in the same way that the officers do. The Court vacated the injunction and remanded for an award of non-injunctive relief to be determined by the magistrate judge.

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STAUB v. PROCTOR HOSPITAL (March 25, 2009)

Vincent Staub was a technologist at Proctor Hospital - and also a member of the Army reserves. Although he managed to balance the two obligations for years, things began to deteriorate in 2000. One of his supervisors was clearly irritated with him because of his reserve obligations. She was very vocal about her dislike of the reserve and her desire to “ get rid of him." Staub, unfortunately, already had a checkered employment history at the hospital. In January 2004, she gave Staub a written warning. She accused him of failing to assist other members of the hospital staff and of leaving his work area. As a result, Staub was instructed to keep his supervisors advised of his whereabouts and schedule at all times. A few months later, a similar incident occurred. Staub was fired immediately by the Vice President of Human Resources. She fired Staub for not only failing to follow the earlier warning, but also for his past issues. Although Staub filed a grievance insisting that the original incident was fabricated by his colleague who did not like him, the HR VP did not investigate. Staub filed an action against the hospital under the Uniformed Services Employment and the Reemployment Rights Act (USERRA). The jury found for Staub and awarded damages. The district court denied Proctor’s motion for judgment as a matter of law or for a new trial. Proctor appeals.

In their opinion, Judges Manion, Evans and Tinder reversed and remanded. The Court stated that USERRA prohibits adverse action based on military status. In order to recover, however, a plaintiff must show that the decision-maker, and not just any coworker, harbored the animus. Here, the HR VP was the decision-maker. There is no evidence in the record that she harbored any animosity against Staub or his military responsibilities. Realizing this, Staub relies on the “cat's paw” theory. Under this approach, the discriminatory animus of a non-decisionmaker is imputed to a decisionmaker when the non-decisionmaker exerts singular influence over the decisionmaker to cause the adverse employment action. The Court emphasized that the employer is not liable unless the decisionmaker relies exclusively on the information provided and fails to conduct any investigation. Here, the Court found that the evidence did not support that conclusion. The evidence was clear that the decisionmaker did not rely exclusively on any information provided by other employees. In fact, the Court criticized the district court for even sending the issue to the jury. Instead, the Court suggested an approach whereby the trial judge makes a threshold determination on whether a reasonable jury could find this exclusive influence before even admitting into evidence the animus of a non-decisionmaker.

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VENDETTI v. COMPASS ENVIRONMENTAL, INC. (MARCH 24, 2009)

Ronald Vendetti was an accountant in Stone Mountain, Georgia. His employer was acquired by Compass Environmental, Inc. ("Compass"), which was located in Chicago. Vendetti negotiated an employment agreement that provided that: a) he could continue to be located near Stone Mountain, b) he was entitled to one year severance if Compass relocated him, c) he could terminate the agreement with one year severance on 30 days notice for a material breach, and d) he could terminate the agreement without severance on 90 days notice for no cause. Within months, Vendetti's duties necessitated occasional travel to Chicago, to which Vendetti did not object. Later, Compass asked Vendetti to be in Chicago for two weeks of every month for the "indefinite future." Vendetti sent a 30-day notice letter, asserting the position that the company's request violated the agreement’s “location clause”. When Compass refused to provide severance, Vendetti brought an action for breach of contract. The district court granted summary judgment to Vendetti, holding that Compass violated the agreement. Compass appeals.

In their opinion, Judges Bauer, Posner and Rovner reversed. The Court disagreed with the district court in many respects -- most importantly with respect to whether there was a violation of the location clause in the agreement. The Court concluded that business travel, at least to a point not reached here, did not constitute relocation as that term was used in the agreement. In reaching its conclusion, the Court noted: a) relocation was not defined in the agreement, b) it must have been obvious to Vendetti at the time he signed the agreement that travel to Chicago would be required, c) the company paid for all Vendetti’s travel expenses, and d) there were better ways to provide a party a veto over business travel. Since Vendetti did not identify any triable issues of fact, the Court not only reversed the district court's award of summary judgment to Vendetti but also reversed its denial of summary judgment to Compass.

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SIMPSON v. OFFICE OF THE CHIEF JUDGE OF THE CIRCUIT COURT OF WILL COUNTY (March 23, 2009)

Laura Simpson was the Director of the River Valley Juvenile Detention Center. In late 2002, Simpson began a period of paid sick leave. During her leave, the county auditor released a report that concluded that Simpson engaged in misconduct. The auditor recommended that she be fired. The report, which was initiated before Simpson went on leave and was initially focused on another county employee, concluded that Simpson a) allowed a psychologist under her authority to defraud the county, b) maintained an improper relationship with a juvenile detainee, and c) acted negligently in handling an attempted suicide. The Chief Judge fired Simpson. Simpson brought an action for interference with her FMLA rights and for retaliation. The district court granted summary judgment for the defendants. Simpson appeals.

In their opinion, Judges Ripple, Kanne and Tinder affirmed. On the interference claim, the Court noted that the only element in dispute was whether the defendants denied Simpson a benefit of the FMLA. The FMLA does not require an employer to reinstate an employee after leave if he would have terminated her regardless of whether she took the leave. The Court concluded that Simpson failed to provide any evidence that the termination of her employment was related to her leave. The Chief Judge relied on the conclusions contained in the audit report and its recommendation to terminate Simpson's employment. The Court addressed Simpson’s FMLA discrimination claim under both the direct and indirect methods. The Court concluded that the evidence did not support a retaliation claim, for much the same reason that it did not support an interference claim.
 

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TEAL v. POTTER (March 20, 2009)

Joanne Teal had been employed by the U. S. Postal Service for almost 20 years when, during an altercation, she struck her supervisor's hand. Although the Postal Service attempted to discharge her, a grievance arbitrator determined that she should be suspended instead. Before she could be reinstated, however, Teal had to demonstrate her physical and mental fitness to resume her duties. For over eight months, the Postal Service went to great lengths to accommodate Teal's needs in scheduling the examinations. Finally, in July of 2003, the Postal Service advised Teal that they were terminating her employment. In the meantime, Teal filed an EEOC complaint in January of 2003, complaining that the original termination of her employment was discriminatory. Teal sued the Postal Service pursuant to the Rehabilitation Act. The district court concluded that she had failed to exhaust her administrative remedies and granted summary judgment to the Postal Service.

In their opinion, Judges Posner, Rovner and Evans vacated and remanded. The Court that the Rehabilitation Act, like Title VII of the Civil Rights Act, requires a plaintiff to exhaust administrative remedies before bringing an action. Additionally, a plaintiff cannot complain of conduct that was not the subject of an EEOC charge. Here, Teal's EEOC charge complained of discrimination prior to her original discharge in March of 2002. The district court complaint, on the other hand, complains of her July 2003 dismissal. The 2003 dismissal was based on Teal's noncompliance with the conditions of her reinstatement, not the incident with her supervisor. The Court concluded that Teal had failed to exhaust her administrative remedies. The Court remanded the case for a dismissal without prejudice.

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CRACCO v. VITRAN EXPRESS, INC. (March 17, 2009)

Kevin Cracco was a truck terminal manager at Vitran Express. In late 2006, he was hospitalized with a serious health condition and went on FMLA leave. Cracco's duties were performed by other employees during his absence. The replacement employees discovered a host of problem’s during Cracco’s absence: damaged freight, safety lapses and general disorganization. Vitran's further investigation also discovered falsified freight records. The company terminated Cracco's employment upon his return from leave. Cracco filed suit, alleging that the company violated his FMLA rights. The district court entered a default order when Vitran failed to respond. The court later vacated the default and granted summary judgment to Vitran. Cracco appeals.

In their opinion, Judges Ripple, Manion and Sykes affirmed. The Court first affirmed the district court's order vacating the default. It found Vitran’s statement in its motion that Cracco was fired for cause sufficient to meet the liberal meritorious defense requirement of Rule 55. The Court also rejected Cracco's argument that the district court improperly deemed admitted a paragraph of Vitran’s Rule 56.1 statement of material facts. The paragraph contained multiple statements relating to the problems discovered at the terminal during Cracco’s leave. The Court conceded that the lower court could have required Vitran to unbundle the allegations. It concluded that the court did not abuse its discretion in requiring Cracco to respond to the paragraph, however. The Court then addressed the summary judgment ruling. With respect to the direct method of proof, Cracco attempted to establish a causal connection between his protected activities and his termination. He relied on the fact that he was terminated immediately upon his return from leave. The Court rejected the argument, concluding that the discovery of the performance problems during his leave negated any inference of causal connection. The Court concluded that Cracco was unable to establish two prongs of the indirect method of proof test: a) that he met his employer’s expectations and b) that he was treated less favorably than a similarly situated employee. Finally, because Cracco presented no evidence that he would have retained his job had he not taken FMLA leave, his interference claim failed as well.

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HARP v. CHARTER COMMUNICATIONS, INC. (March 16, 2009)

Mary Harp was a supervisor in the audit department at Charter Communications, Inc. ("Charter"). She was responsible for ensuring that Charter’s outside contractors performed the services for which they were retained. In early 2004, she concluded that one of Charter’s outside contractors sought payment for services it did not perform. Harp was unhappy with the way Charter treated the situation. She complained to the company that her direct supervisor violated the company's ethics code by authorizing full payment to the contractor. Shortly thereafter, the entire audit department was eliminated as part of a reduction in force. Harp brought an action against Charter under the Sarbanes-Oxley Act, alleging that her termination was in retaliation for her whistle-blowing. The district court granted summary judgment to Charter. Harp appeals.

In their opinion, Judges Ripple and Rovner affirmed (Tinder dissenting). In order to prevail, the Court noted that Harp had to prove a) that she engaged in protected activity, b) that Charter knew she was engaged in protected activity, c) that she suffered an unfavorable personnel action, and d) that the protected activity was a contributing factor in the personnel action. In order to meet the “protected activity” element, Harp must have actually believed that her supervisor’s conduct was unlawful and her belief must have been reasonable. The Court concluded that Harp's allegation that her supervisor authorized full payment to a contractor for services not performed had no subjective or objective basis for belief. The Court noted that Harp relied on conversations with a coworker in coming to her conclusion and that her own conduct was inconsistent with the belief. Thus, Harp was unable to establish even the first element of the test. The Court added that her claim would fail even if she met that element. The fact that the entire department was eliminated as part of a reduction in force would prevent her from establishing that her complaint was a contributing factor in her termination.

Judge Tinder dissented. Judge Tinder agreed with the legal test laid out in the majority opinion but disagreed with the majority's analysis and application of the facts to the law. He believed that Harp had a subjective belief that the company was a victim of fraud at the time she submitted her complaint and that her complaint could be reconciled with her deposition testimony. He also thought the circumstances behind the reduction in force were questionable enough to allow Harp to proceed with her complaint. For example, Charter argued that the reduction in force was necessary to save $800,000 a month -- yet the salaries of the entire department amounted to less than $200,000 per month. Also, Harp's severance form indicated that she would not be eligible for rehire -- a fact Judge Tinder thought atypical of a reduction in force. Finally, Charter began rehiring for the audit department within two months of the reduction. Judge Tinder thought that Harp had presented enough evidence to allow her claim to go to the jury.

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CLEAR CHANNEL OUTDOOR, INC. v. INTERNATIONAL UNIONS OF PAINTERS AND ALLIED TRADES (March 12, 2009)

Clear Channel Outdoor ("CCO ") owns and maintains hundreds of billboards in and around Milwaukee. Patrick Rogney was a CCO crew chief. In April of 2003, Rogney was working with a crew on a billboard in Milwaukee. They were on a platform about 18 feet off the ground. At some point, he disconnected his safety harness from the cable. A company official, conducting a field inspection, observed Rogney at work without the connected harness. After observing for about eight minutes, he notified the operations manager by phone. CCO suspended Rogney that afternoon, and later discharged him. The union filed a grievance, alleging that the termination was without good cause. Pursuant to the collective bargaining agreement, the parties submitted the matter to an arbitrator. After an evidentiary hearing, the arbitrator determined that Rogney's discharge was without just cause and that an appropriate penalty was a six-month suspension without pay. The arbitrator interpreted "just cause" to require CCO to not only consider whether an offense allowing termination was committed but also to consider whether termination was warranted under the circumstances. CCO brought an action to vacate the arbitrator's award. The district court confirmed the arbitrator's decision. CCO appeals.

In their opinion, Judges Rovner, Wood and Williams affirmed. The Court emphasized its limited role in reviewing a labor arbitrator's decision -- only to determine whether the arbitrator exceeded the powers delegated to him. Here, the Court looked to whether the arbitrator's decision had a plausible foundation in the terms of the collective bargaining agreement. The Court noted that it did not necessarily agree with the arbitrator's construction of the contract. In fact, the collective bargaining agreement gave CCO discretion to fire an employee for a violation of the very safety rule that Rogney violated. Nevertheless, the Court concluded that the arbitrator "without question" interpreted the agreement. Since his decision drew its essence from the agreement, the Court let it stand and affirmed the district court.

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VOUGHT v. THE STATE OF WISCONSIN TEAMSTERS JOINT COUNCIL NO. 39 (March 10, 2009)

Daniel Vought and Daniel Alexander were business agents for their local union. James Newell was its Secretary – Treasurer. In mid-2003, Newell fired Robert Russell from his position as a union business agent for allegedly misrepresenting the nature of the union’s health plan. The termination was reversed by the union’s Executive Board. Charges and countercharges were exchanged between Newell and Vought on the one hand and three of the union’s other board members . The matter was submitted to the Joint Council. The Council decided against Newell and removed him as a union officer and suspended him from union membership or employment. His replacement fired Vought the next day. After Alexander showed his support for Vought in later disciplinary proceedings, union leadership showed its displeasure by making his job more unpleasant. He soon resigned. Alexander and Vought brought an action under the Labor Management Reporting and Disclosure Act (“LMRDA”), alleging that they were forced out of their jobs in retaliation for identifying union impropriety. The District Court dismissed Vought’s claim on the merits and Alexander's on the ground that he failed to exhaust union remedies. Vought and Alexander appeal.

In their opinion, Judges Manion, Evans and Tinder affirmed. The Court first indicated its agreement with the lower court’s conclusion on exhaustion. It agreed with Alexander that exhaustion is not required when it would have been futile. Nevertheless, it concluded that the lower court did not abuse its discretion in deciding that a union hearing would not have been an empty formality for Alexander. With respect to the LMRDA claim, the Court cited Supreme Court and Seventh Circuit precedent supporting the proposition that the act does not restrict the freedom of a union leader to choose a staff with compatible views. The union leaders in the cited cases were all elected, and the union leader who terminated Vought was not. The Court did not view that distinction as one that would support a different conclusion.

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UNITED AIR LINES, INC. v. AIR LINE PILOTS ASSOCIATION (March 9, 2009)

United Air Lines, Inc. ("United") and the Air Line Pilots Association ("ALPA"), the collective bargaining representative for the pilots, have a long and contentious history of labor negotiations. The events of September 11, 2001 put additional pressure on that relationship. Their current collective bargaining agreement was negotiated in 2003 and amended in 2004 and 2005. In late 2006, ALPA attempted to reopen contract negotiations. According to United, ALPA took a number of coordinated measures in an attempt to pressure United. United sued ALPA in July of 2008 under Section 2, First of the Railway Labor Act (“RLA”). Shortly thereafter, ALPA agreed to direct its members not to engage in the disruptive activities. The district court, after an evidentiary hearing, granted United's request for a preliminary injunction. ALPA appeals.

In their opinion, Judges Rovner, Wood and Sykes affirmed. The Court addressed the four main issues on appeal: a) that the claim was barred by the six-month statute of limitations, b) that ALPA had made reasonable efforts under the RLA, c) that United failed to satisfy the requirements of Section 6 of the Norris-LaGuardia Act ("NLGA"), and d) that United failed to satisfy the requirements of Section 7 of the NLGA. With respect to the statute of limitations, the Court noted that the RLA borrows the six-month statute of limitations from the National Labor Relations Act. Although the court agreed that the conduct of ALPA began long before the suit was filed, it concluded that the action was not time-barred. ALPA engaged in unlawful action both before and during the six-month period and their actions created new injuries within the six-month period. The Court found no merit in ALPA'S argument that it made reasonable efforts to halt its members’ unlawful conduct. It relied on the district court's thorough findings of fact and accorded them substantial deference. With respect to the Section 6 requirement -- that United is required to prove that ALPA participated in or ratified the unlawful conduct -- the Court again relied heavily on the thorough findings of fact by the district court. It concluded that United’s statistical evidence, in combination with ALPA's coded communications, were sufficient to meet its burden. Finally, the Court rejected ALPA’s argument that the injunction was not necessary to prevent a violation of Section 2, First of the RLA. The Court conceded the general prohibition in the NLGA barring injunctions against labor unions, but noted an exception when there is a specific violation of a provision of the RLA. Even though ALPA had entered into an agreement to voluntarily cease its wrongful conduct, the district court found that it's conduct was inconsistent with its agreement. The Court concluded that the lower court was within its discretion to find that an injunction was the only way to ensure compliance with the RLA.

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GREENE v. POTTER (March 5, 2009)

Mary Alice Greene worked for the post office. She worked five days a week and was allowed to volunteer for overtime on her days off. Each quarter, the post office generated a list of employees who wanted overtime. The assignments were supposed to rotate according to seniority, but the post office was not required to schedule an employee for more than one overtime shift a week. Greene’s off days were Sunday and one weekday. She always requested overtime on both of her off days, although she preferred Sunday overtime. During a two-year period, Greene was offered 22 overtime shifts, only five of which were Sundays. Greene brought an action against the post office for gender discrimination. She claimed that her supervisor favored his male friends to the detriment of the female employees in scheduling the more desirable Sunday overtime. During Greene's case-in-chief, the court granted the post office's motion for judgment as a matter of law. Greene appeals.

In their opinion, Judges Bauer, Ripple and Evans affirmed. The Court first addressed Greene's argument that the entry of judgment in the middle of her case-in-chief was improper. The Court noted that FRCP 50 allows a court to grant a motion for judgment as a matter of law once "a party has been fully heard." The Court recognized that the common practice may be to wait until a party has concluded its case-in-chief. Nevertheless, it concluded that it is proper to enter judgment prior to the close of the plaintiff's case if it has become apparent that the plaintiff cannot prove her case. Here, on the merits, Greene relied on the indirect method of proving illegal discrimination. The Court assumed, for purposes of the appeal, that Greene could have satisfied the elements of the indirect method. It proceeded to address whether Greene presented a genuine issue regarding the post office’s reason for its actions. In order to prevail, Greene had to show that the post office reasons were a pretext for gender discrimination. Greene presented evidence that her supervisor did not schedule overtime according to the post office's policies. The evidence in fact demonstrated that the supervisor manipulated the system to benefit a few of his friends. Greene’s evidence showed conclusively that there was a nondiscriminatory reason for her supervisor's decisions. Since her own evidence that was submitted and that she planned to submit actually defeated her claim, the court acted properly in entering judgment as a matter of law during her case-in-chief.
 

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ANTONETTI v. ABBOTT LABORATORIES  (April 21, 2009)

Five technicians employed by Abbott Laboratories left in the middle of their shift one Saturday and went to breakfast. On the following Monday, Scott Antonetti (a white male), Jerald Fuhrer (a white male), Cindy Nadiger (a white female) and Marvin Gloria (a Filipino male) each told a supervisor that he or she had not taken a meal break. Relying on these statements, the supervisor overrode Abbott’s payroll system so that they would be paid as if they had not taken an unpaid break. Juan Luna (a Hispanic male), the fifth employee, did not work on Monday and did not have any communication that day with the supervisor regarding his Saturday shift. Nevertheless, the supervisor overrode the payroll system for Luna as well.

A few months later, Abbott began to investigate instances of employees leaving their weekend shifts for meals. When asked, Luna admitted that the five of them had left Abbott’s campus on that Saturday for breakfast. When the investigators questioned the other four, they stated they did not remember going to the off-site breakfast that day. Because working the Saturday overtime shift and leaving Abbott’s premises in the middle of a shift was unusual, the investigators found it implausible that the four employees did not remember going off-site for a meal during a Saturday overtime shift. In addition, they could remember other details about the Saturday overtime shift. Furthermore, one of them later changed his story and confessed, supposedly on behalf of all of them, to attending the off-site breakfast. Antonetti, Fuhrer, Nadiger and Gloria were terminated for time card fraud. Luna was not terminated. Antonetti, Fuhrer and Nadiger filed suit, claiming they were terminated on account of their race (Caucasian) and national origin (United States). Nadiger also claimed that she was terminated in retaliation for her complaints of sex discrimination. Gloria did not file suit. The district court entered summary judgment in favor of Abbott, finding the plaintiffs could not establish a prima facia case of race or national origin discrimination. The plaintiffs appealed.

In their opinion, Judges Bauer, Posner and Williams affirmed. The Court first addressed the elements necessary to present a prima facie case of discrimination under both Title VII and 42 U.S.C. § 1981. The Court stated that plaintiffs must prove that: 1) they are members of a protected class; 2) they were performing their jobs satisfactorily; 3) they suffered an adverse employment action; and 4) similarly situated employees outside of their protected class where treated more favorably. Focusing on the fourth element of the discrimination claim, the Court found that the non-terminated employee, Luna, was not similarly situated to the plaintiffs for two reasons. First, Luna never told his supervisor that he did not take a break on the Saturday in question. Second, and most importantly, Luna told the truth when he was approached by the investigator about the off-site meal. Since the plaintiffs could not point to a similarly situated employee who was treated more favorably, their claim failed.

Addressing Nadiger’s Title VII claims that she was terminated in retaliation for her past and possible future complaints of sex discrimination in relation to being denied a promotion, the Court stated that there must be a causal link between her complaints of sex discrimination and her termination. The Court found that even if Abbott was partially motivated by Nadiger’s complaints of sex discrimination, it would have nonetheless fired her for time card fraud. Since Abbott had an independent and legitimate reason for firing Nadiger, her separate claim fails as well.

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ZERENTE v DELUCA (February 9, 2009)

Maria Zerente was employed by the City of Chicago Heights from 1995 until 2003, during the two terms of Mayor Ciambrone. Several candidates vied for the mayoral position in 2003, after Ciambrone announced that he would not run for reelection. Anthony DeLuca won on a fiscal responsibility platform. DeLuca hired Dan Proft as Chief of Staff. They both concluded that one of the City’s biggest fiscal problems was a bloated workforce. They fired seventeen employees and did not fill another seventeen open positions. Proft also came to believe that Zerente’s department was underperforming. DeLuca fired Zerente and replaced her with the man who had been his campaign treasurer. Zerente brought a § 1983 action against DeLuca and Proft, alleging that her firing was due to her political affiliation. The district court granted summary judgment to DeLuca and Proft. Zerente appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Sykes affirmed. The Court laid out the elements of a prima facie case of political discrimination – constitutionally protected conduct and evidence that the conduct was a substantial and motivating factor in the firing decision. Zerente established the first prong with evidence of her support of Ciambrone, her involvement in the primary campaign of a DeLuca opponent, and her decision to remain neutral in the general election. The Court held that she failed to meet the second prong, however. She presented no evidence that DeLuca or Proft were even aware of her political activity. Her fallback position that it was her political inactivity (i.e., her neutrality during the general election) that resulted in her firing also fails. Although her neutrality is protected, she brought forth no evidence, other than that her replacement was not neutral, to establish that her neutrality was a motivating factor. That her replacement was involved in DeLuca’s campaign simply does not support her claim.

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AKANDE v. GROUNDS (February 9, 2009)

Adetunji Akande was employed by the Illinois Department of Corrections. He served as a clinical casework supervisor in the clinical services division at the Robinson Correctional Facility (“RCF”). His job was subject to the Illinois Personnel Code. The Code provided that he could not be fired or demoted except for cause. The division was responsible for counseling and disciplinary activity at RCF. The division was run by a clinical services supervisor. The casework supervisors were intermediate managers. Their responsibilities included: resolving and reporting on serious disciplinary matters, supervising the delivery of services by the correctional counselors, evaluating correctional counselors, and performing other like duties. As of late 2003, Akande was the only supervisor. A new warden, Randall Grounds, arrived in early 2004. He came to doubt Akande’s job performance, particularly as it related to inputting disciplinary reports. He instructed Akande to personally input all data at the end of each day. Akande delegated the task. Grounds repeated his instructions. Akande continued to delegate the task. Ground referred Akande for discipline. His position that he was allowed to delegate the assigned tasks notwithstanding Grounds’ instructions was rejected. He received oral and written reprimands and a three-day suspension. In early 2004, Grounds removed Akande’s supervisory responsibilities. Shortly thereafter, Grounds presented Akande with a formal memorandum of responsibilities stating that all data entry for serious discipline was the supervisor’s responsibility. Akande left RCF with a “headache,” went on disability and never returned. Akande brought this action, alleging that he was effectively eliminated from his position, in which he had a property interest. The court granted summary judgment to defendants, holding that they were entitled to qualified immunity. Akande appealed.

In their opinion, Judges Flaum, Wood and Williams affirmed. The Court identified the threshold question as whether Akande has been deprived of a constitutionally protected property interest. The Court agreed that state law gave Akande a property right not to be removed from his job or demoted without cause. Under the Illinois Code, “demotion” is defined as the assignment of an employee to a job of a lower grade because of the employee’s performance in the higher grade job. Here, Akande was not terminated, not told to leave, not assigned to a different job – his duties were simply altered. Therefore, he was not deprived of a property interest. Since he failed to show the deprivation of a property interest, the Court did not need to the “clearly established” prong of the qualified immunity test.

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NAGLE v. VILLAGE OF CALUMET PARK (February 4, 2009)

William Nagle, a white male in his fifties, is a police officer with the Village of Calumet Park and has been for almost thirst years. He has been active in union matters for most of that time. The Village hired a new Police Chief (Davis, a black male in his fifties) and Assistant Chief (Rockett, a white female in her forties) in 2002. Nagle claims that Davis discriminated against him on racial and age bases. The incidents he complains of include: a) Davis asked Nagle when he was going to retire, b) Davis referred to Nagle and his peer group on several occasions as “old white mother f*****s,” c) Davis selectively disciplined Nagle in comparison to younger officers, d) Davis said he might be getting “too old” for the job, e) Davis suspended Nagle for failing to assist another officer but did not discipline another officer for the same conduct, and f) Davis reassigned Nagle to duties that Nagle considered undesirable. Nagle also contends that Davis discriminated against him because of his speech. Nagle had spoken up publicly at a meeting in opposition to Davis’ manpower reduction plans. Davis later criticized him for doing so. A few days later, Nagle was suspended for violating a new sick-leave policy. Nagle filed charges with the EEOC. A few weeks later, Davis again suspended Nagle, this time for preparing a union grievance while on-duty. The suspension was overturned and Nagle was paid for the time. He nevertheless filed a second EEOC charge alleging that his suspension was on account of his age and race and in retaliation for the earlier EEOC charge. After being suspended again for violating the sick-leave policy, Nagle filed a third charge alleging that that suspension and an earlier reassignment were made due to his age and race and in retaliation for his complaints. Nagle brought an action, alleging age discrimination under ADEA and race discrimination and retaliation under Title VII. He also brought a § 1983 action, alleging a violation of the First Amendment. The court granted summary judgment for defendants on all counts. Nagle appeals.

In their opinion, Judges Flaum, Evans and Williams affirmed. The Court first addressed Nagle’s race and age discrimination claims. The Court noted the lack of direct evidence of discriminatory intent. But the direct method of proof also allows a plaintiff to rely on circumstantial evidence. That evidence could include a) suspicious timing, b) ambiguous statements or conduct directed at the protected group, c) evidence of better treatment of those outside the group. or d) evidence that a qualified employee was passed over in favor of a person outside the group. The Court refused to disregard Davis’ race and age-based remarks simply because they were not close in time to the complained of discrimination. A determination must be made on all the facts. Here, Nagle tried to buttress his claim by showing that Davis generally hired non-white or non-male applicants and that he treated non-white and non-male officers better. The Court found that Nagle failed to produce enough evidence on either point. In addition, most of Nagle’s complaints did not refer to adverse employment actions. None of the reassignments he complained of changed the terms or conditions of his employment or affected his career prospects. The Court concluded that Davis’ comments were the only evidence under the direct method and insufficient to establish a prima facie case, given their lack of proximity to the complained-of conduct. The Court addressed Nagle’s claims under the indirect method. Under that method, among other things, a plaintiff must show adverse employment actions and that similarly situated individuals were treated better. The Court’s analysis of these same issues under the direct method show the lack of claim under the indirect method. The Court proceeded to address Nagle’s retaliation claim, again under a direct and indirect method. Nagle failed to carry the day on his retaliation claim because, on most, he failed to prove that he suffered materially adverse employment decisions and on one other, he failed to prove that Davis even knew of his EEOC charge when Davis suspended him. Finally, with respect to Nagle’s First Amendment claim, the Court found the record sparse with respect to the particulars of the speech. Without more information about content, form, and relationship of the speech to his job as a police officer and his role as a union representative, the Court was unable to determine whether his speech was protected.

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BALTZELL v. R&R TRUCKING (February 4, 2009)

"Skeeter" Baltzell worked for Ensign-Bickford Company (“Ensign”) as a truck loader. R&R Trucking (“R&R”) had a contract with Ensign to provide specialized tractor-trailers and drivers. Baltzell was the victim of an unfortunate accident in May 2000, when one of his Ensign co-workers backed up and crushed him between the trailer and the dock. Baltzell was severely injured in the accident and still requires constant care. Baltzell filed a claim with the Illinois Workers’ Compensation Commission and he and his wife filed this lawsuit. The Baltzells claimed damages arising from Baltzell’s injuries and his wife’s loss of consortium, naming R&R and the manufacturers of the tractor and trailer. The defendants brought contribution claims against Ensign. The jury awarded almost $14 million dollars and allocated fault 30% to Ensign and 70% to the other three defendants. Ensign moved to waive its workers’ compensation lien and to dismiss the contribution claims. The court denied its motion. Ensign appeals.

In their opinion, Judges Bauer, Evans and Williams reversed and remanded. The Court first reviewed Illinois’ workers compensation scheme (in relevant part): a) an employer compensates an employee for injuries on the job regardless of fault, b) an employee cannot sue an employer for the injuries, c) an employee can sure a third party who may be at fault, d) the third party can seek contribution from an employer, e) an employer has a lien on third party recovery, and f) the lien is the amount of recovery less the amount equal to the employer’s pro rata share of the common liability (up to its workers’ compensation obligation). It is possible under this scheme for the employer to be liable for more than its workers compensation obligation, a result disfavored by the workers’ compensation policy. Illinois has provided two safeguards. First, the Illinois Supreme Court in Kotecki v. Cyclops Welding Corp. capped an employer’s contribution liability at its workers’ compensation liability. Second, to allow for the possibility that an employer would rather be liable under the workers’ compensation statute than for contribution, even if the amount is the same, Illinois allows an employer to waive its lien on third party recovery and be protected from contribution. Here, the court below did not allow Ensign to waive its lien. The court believed that Ensign’s delay in waiving until it knew the amount of the verdict and the jury’s assessment of its share frustrated the purposes of the Contribution Act. Ensign could have decided not to waive if the jury found its share of fault low or non-existent. The Court appreciated the lower court’s concern but noted that the Illinois Supreme Court in LaFever v. Kemlite Co. had approved the very strategy employed by Ensign. The Court also rejected the distinction that LaFever dealt with a situation where the employer had completed its compensation payments. The court should have allowed the waiver. The Court did agree with defendants that they are entitled, vis-a-vis Baltzell, to a setoff for the payments already received by Baltzell from Ensign. It declined, however, to either grant a setoff for estimated future payments or to order some form of trust to distribute the future payments. It did recommend that the parties voluntarily set up a mechanism to distribute future payments to the defendants according to their shares of liability

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EEOC v. LEE’S LOG CABIN (February 2, 2009)

Korrin Stewart was diagnosed as HIV-positive when she was just fourteen years old. Shortly thereafter, she learned that it had actually developed into AIDS. At the age of eighteen, she applied for a wait-staff position at Lee’s Log Cabin (“Lee’s”). Lee’s found out that Stewart was HIV+. In fact, the manager wrote the notation “HIV+” on her application. The EEOC filed suit when Lee’s did not hire Stewart. Shortly before trial, the EEOC presented affidavits from Stewart and her doctors describing how AIDS affected her daily activities. The district court rejected the affidavits because the EEOC had never pleaded the presence of AIDS and, the court found, AIDS and HIV-positive were not synonymous. The court granted summary judgment for Lee’s. The panel of the Seventh Circuit affirmed. The Court thought that the EEOC “complicated the inquiry” by attempting to refashion its claim as AIDS claim late in the case. The Court called it a “major alteration” of the EEOC’s case. Relying on significant symptomatic differences at different stages of the disease, the Court thought it was highly relevant whether Stewart was HIV-positive or had AIDS. The EEOC sought rehearing and rehearing en banc.

In their opinion, the full Court denied the petition.

Judge Williams, joined by Judges Rovner, Wood and Evans dissented. Judge Williams echoed the content of her dissent to the panel opinion. She thought that the majority imposed a higher pleading threshold on individuals with complex, multi-level diseases. Such a requirement is inconsistent with the notice pleading requirement. The exact stage of a disease, including HIV, is an irrelevant detail, and should not be a pleading requirement. Judge Williams also disagreed with the majority’s alternate ground – that an employer has to have specific knowledge of how far an employee’s disability has advanced to be liable. It should be enough if the employer knows about the existence of the impairment, even if unaware of its specific stage.

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EEOC v. WATKINS MOTOR LINES (January 23, 2009)

Watkins Motor Lines (“Watkins”) experienced three episodes of employee-on-employee murder or attempted murder. It decided it would no longer employ persons who had been convicted of a crime of violence. A few months after Watkins adopted its new policy, Lyndon Jackson applied for a job. Jackson had a criminal record. Watkins declined to hire him for that reason. Jackson filed a complaint with the EEOC. The EEOC initiated an investigation. It sought to determine whether the policy had a disparate impact on minorities and, if so, whether it was a business necessity. In April 2005, the EEOC issued a subpoena to Watkins. Watkins and Jackson reached a settlement in January 2006, contingent on the EEOC abandoning the investigation. Jackson withdrew his charge – but the EEOC pressed on. It sought to enforce the subpoena in the district court. The court dismissed the EEOC’s action for lack of subject-matter jurisdiction. The court concluded that no valid charge was pending because the EEOC should have allowed Jackson to settle and withdraw his charge. The EEOC appeals.

In their opinion, Chief Judge Easterbrook and Judges Evans and Tinder reversed and remanded. Once an EEOC charge is filed, the agency determines the direction of the investigation. A charge can be withdrawn only with the consent of the agency and only when it will not defeat the purposes of Title VII. Here, the Court noted that a valid charge was filed and that the agency sought to continue the investigation even after Jackson wanted to withdraw. The agency did not commit error when it decided to continue the investigation of Watkins’ employment policy for the benefit of other applicants. The Court analogized the situation to those in which a representative class plaintiff settles with the defendants or in which settling parties want to vacate earlier judicial decisions in their case. The Supreme Court has rejected those arguments in Deposit Guaranty National Bank v. Roper, United States Parole Commission v. Geraghty, and U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership. Watkins’ argument that forcing the EEOC to accept Jackson’s withdrawal will facilitate his settlement ignores the interests of the unrepresented persons. Watkins and Jackson are free to settle – and the EEOC is free to continue its investigation.

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JONES V. CITY OF SPRINGFIELD (January 26, 2009)

The police department of Springfield (the “City”) uses a promotion eligibility list to determine which officers can be promoted to sergeant. The list takes into account written and oral test scores, seniority and military service. The list is typically updated every two years but its life can be extended by a year. A list was due to be updated in October 2003 but was extended a year. At least one reason for the extension was to help one particular black officer (Ralph Harris) obtain a promotion. A few days before the new expiration date, the top three officers on the list were promoted, including Harris. Alan Jones, a white male, was fourth on the list. Once the new list was created, he dropped to twelfth place. He was not promoted until December 2006. Jones sued the City, claiming a violation of Title VII of the Civil Rights Act of 1964. He alleged that he was passed over for promotion because of his race. Jones conceded that there were no open positions but asserts that the City knew there would be a vacancy in a very short time and could have promoted him early – and would have promoted him early if he were black. The district court granted summary judgment to the City. Jones appeals.

In their opinion, Judges Bauer, Posner and Manion affirmed. The Court noted that Jones elected to proceed under both the direct and indirect methods of proof. Under the direct method, the plaintiff must prove that the adverse employment action was taken based on a discriminatory reason. The Court rejected Jones’ argument that he and Harris were similarly situated and Harris was treated more favorably. Since Harris was ranked higher on the list, they were not similarly situated. The Court also rejected Jones’ argument that the jury could have found that the City would have promoted him early had he been black. The Court referred to the absence of any evidence regarding the early promotion practice other than that the practice existed. Under the indirect method, Jones must show that there was an open position. The Court criticized the district court for treating the availability of an open position as part of a pretext argument. The Court emphasized that a plaintiff must make a prima facie case before any pretext argument even arises – and a prima facie case requires proof of an open position. Jones’ inability to show that an open position existed precludes him from establishing a prima facie case.

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ESTATE OF SUSKOVICH v. ANTHEM HEALTH PLANS (January 22, 2009)

Anthony Suskovich was a computer programmer and analyst. From 1996 until his unfortunate and sudden death in 2006, he provided services to WellPoint. WellPoint retained Suskovich on many projects with limited duration, although frequently one project rolled over into another. He billed WellPoint on an invoice, was paid by the hour, and his income was reported on a 1099. WellPoint adopted a preferred vendor program around 2000 under which it could only avail itself of Suskovich’s services if they were provided by a preferred vendor. Suskovich began a relationship with Trasys. Suskovich would send an invoice to WellPoint, which in turn would refer them to Trasys for payment to Suskovich. Suskovich’s income was still reported on a 1099. In 2001, Suskovich signed an “independent contractor” agreement. Suskovich worked on many different projects, sometimes on more than one at once. He usually worked at WellPoint’s offices with a computer supplied by WellPoint. In 2005, WellPoint informed Suskovich that they would not be using him anymore and asked him to train a replacement. Later, Suskovich and WellPoint had discussions about the possibility of Suskovich becoming an employee of WellPoint but nothing ever came of them. Before his death, the IRS began an investigation of Suskovich for not filing tax returns. The investigation led to his filing of returns for several years in which he listed himself as self-employed. He still had remaining tax liability when he died. His estate brought an action against WellPoint and Trasys, seeking a declaratory judgment that Suskovich was an employee of WellPoint and Trasys and for compensation under the Fair Labor Standards Act (“FLSA”), benefits under ERISA, and tax indemnity. The district court granted summary judgment for the defendants, holding that Suskovich was an independent contractor. The Estate appeals.

In their opinion, Judges Cudahy, Flaum and Sykes affirmed. First, the Court held that the district court did not give improper weight to the “independent contractor” agreement. The Court held that the court below properly followed the law of the Circuit that parties can define their relationship as long as the other factors do not lead to the opposite conclusion. The district court gave primary weight to the contract but did consider and weigh other factors. Next, the Court held that the district court properly resolved the ambiguity in the contract by considering the language of the contract as well as extrinsic evidence. The Court proceeded to the meat of the appeal – whether Suskovich was an independent contractor or an employee. The Court decided to approach the question under the 10-factor Restatement test, even though the asserted claims have different tests. ERISA claims use a 12-factor common law test. FLSA claims use a broader 6-factor test. The Supreme Court has held that the ERISA test is similar to the Restatement test and the Estate relied on the Restatement test. The Court evaluated and weighed the ten factors: a) extent of control, b) whether the worker is engaged in a distinct occupation, c) whether the type of work is generally done without supervision, d) skill required, e) who supplies the tools and workplace, f) length of employment, g) whether the payment is by time or job, h) whether the work is the regular business of the employer, i) the parties’ belief, and j) whether the principal is in business. The Court concluded that only two factors weighed at all in Suskovich’s favor: who supplied the tools and whether the work was the regular part of the business. The former is a relatively unimportant factor and the latter only favors Suskovich as against Trasys. All of the other factors weighed against Suskovich. The district court was correct in awarding summary judgment to WellPoint and Trasys.

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JACKSON v. CITY OF CHICAGO (January 13, 2009)

George Jackson was a carpenter in the Public Works Department in the City of Chicago from 1987 until 2003, when he was promoted to foreman. In 2004, the City announced the availability of two jobs as general foreman of general trades – one each in the Departments of Transportation and General Services. Jackson applied for both jobs. He was offered neither. The City promoted Michael Blake to the Department of Transportation job. Blake had more experience as a carpenter, had more experience estimating the material and manpower needs of a project, and significantly outscored Jackson on a written test of communication skills. The City promoted Kevin O’Gorman to the Department of General Services job. O’Gorman received the highest combined score for the interview and work sample. Jackson did not even submit a work sample. Jackson brought an action against the City. He alleged race and age discrimination under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. The court granted summary judgment to the City. Jackson appeals the Title VII race discrimination judgment.

In their opinion, Judges Kanne, Evans and Sykes affirmed. The Court noted that Jackson was proceeding under the indirect method of proof. The first requirement of that indirect method is to establish a prima facie case of discrimination. The Court recited the elements of the prima facie case: a) he is a member of a protected class, b) he is qualified for the position, c) he was rejected, and d) the position was given to a person not in the protected class who was less or similarly qualified. Thus, if a job is given to a better qualified individual, the plaintiff’s case must fail. The Court concluded that both promotions were awarded to better qualified individuals. Jackson argued that his qualifications suffered in comparison to the others because the City had discriminated against him in the past by denying him training opportunities. The Court rejected Jackson’s approach. First, Jackson never filed an EEOC charge involving training opportunity discrimination, a prerequisite to a Title VII action. Second, to the extent Jackson argued that the discrimination in training opportunities was not an independent claim but merely support for his primary claim, the Supreme Court’s recent decision in Ledbetter v. Goodyear disposes of that theory. The 2004 acts were not discriminatory. Under Ledbetter, a new violation does not occur at the time of later non-discriminatory acts, even if they have adverse effects resulting from past discrimination.

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LLOYD v. SWIFTY TRANSPORTATION (January 9, 2009)

Gerald Lloyd is a truck driver. Unfortunately, Lloyd lost much of his left leg in a motorcycle accident. Fortunately, he adapted fairly well to a prosthetic leg. He does experience some difficulties with the lining and develops occasional infections. He was able to get a limb waiver from the State of Indiana to return to his career as a truck driver. Swifty Transportation (“Swifty”) hired Lloyd as a night-shift driver in June 2008. Swifty delivers gasoline in its fleet of twelve trucks. Each truck has one lead driver on the day shift and two night-shift drivers. The lead drivers are generally paid more and have some additional responsibilities. In 2001, Swifty filled a lead-driver position without interviewing Lloyd, even though Lloyd had expressed his interest in the job. Lloyd filed an EEOC charge, alleging that Swifty denied him the job because of his disability. Swifty and Lloyd resolved the charge. Lloyd agreed not to bring suit. Swifty agreed to notify and interview Lloyd for any open lead-driver position. On three later occasions, Swifty filled open lead-driver positions with other applicants. In June 2003, they interviewed Lloyd but hired a more experienced driver. Lloyd filed a second EEOC complaint. In January 2004, Swifty again filed a lead driver position with a more experienced driver, this time without interviewing Lloyd. Lloyd was disciplined for the first time in January 2005 – for loading gasoline from the wrong supplier. Lloyd filed his third EEOC complaint. Subsequent to his last EEOC complaint, Lloyd was disciplined twice more. In May 2005, Lloyd resigned. He filed a complaint, alleging that Swifty a) failed to promote him, disciplined him, and paid him less than others, all on account of his disability and in retaliation for his EEOC charges and taking FMLA leave, b) created a hostile work environment, and c) breached the settlement agreement by not interviewing him for every job opening. The court granted summary judgment to Swifty.

In their opinion, Judges Cudahy, Ripple and Rovner affirmed. The Court concurred with the district court’s holding that Lloyd’s claims regarding the 2001 and 2003 openings were time-barred and that his FMLA claims were barred because Lloyd did not establish that Swifty had more than fifty employees. With respect to the ADA promotion claims, the Court noted that Lloyd proceeded under the “indirect” method of proof. That requires proof that a) he is disabled, b) he was meeting Swifty’s legitimate expectations, c) he suffered adverse employment action, and d) similarly situated employees without a disability were treated more favorably. The Court concluded that Lloyd never even established that he was a “qualified individual” under the ADA – i.e., that he was actually qualified to be a lead driver. Swifty established that a lead driver needed mechanical knowledge and a positive attitude. The uncontradicted testimony was that Lloyd had a negative attitude. With respect to the claims arising from Swifty’s discipline of Lloyd, the Court stated that the written reprimand was not an adverse employment action, the suspension came after and was unrelated to his final EEOC charge, and Lloyd had no personal knowledge that similarly situated drivers were not disciplined. The Court also affirmed the grant of summary judgment on Lloyd’s lower pay, hostile work environment, and breach of contract claims.

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HANSEN v. BOARD OF TRUSTEES (December 23, 2008)

Hamilton Southeastern High School (“HSHS”) hired Dmitri Alano as a teacher and assistant band director in 1988. Prior to his hiring, the Hamilton Southeastern School Corporation (“HSSC”) conducted its normal pre-hire process, which included an application and questionnaire, interviews, reference checks, and license and background checks. Alano began a sexual relationship with a student in 2000. The student concealed the relationship from her family and friends. A couple of years after the relationship ended, the student revealed the relationship to her therapist. Her parents and the police were informed. HSHS suspended Alano; he ultimately resigned. The student’s parents (the Hansens) brought federal claims under Title IX and 42 U.S.C. § 1983 and several state law claims against Alano and HSSC. The court granted summary judgment on two of the seven counts with respect to Alano. The court granted summary judgment on all seven counts with respect to HSSC and entered a Rule 54 (b) final judgment. The Hansens appeal the dismissal of the Title IX claim and the state law claims.

In their opinion, Chief Judge Easterbrook and Judges Kanne and Tinder affirmed. The Court first addressed the Title IX claim. In order for the Hansens to establish a Title IX claim against HSSC for Alano’s conduct, it must prove that an official with authority to adopt corrective measures either had actual knowledge of the teacher’s misconduct or was deliberately indifferent. The Court concluded that the evidence did not establish that any HSSC official had such knowledge. The Court next rejected the Hansens’ claim that the district court should have declined to exercise jurisdiction over the state law claims once it had dismissed the federal claims. The Court found that the district court properly exercised jurisdiction in the first place – the claims are all based on a common set of facts. The court’s discretion under 28 U.S.C. § 1367(c) was never triggered since it maintained jurisdiction over the federal claim against Alano. Even if it had, the lower court considered a balance of the proper factors (judicial economy, convenience, fairness, comity).

The Court considered the state law claims in two categories: direct claims against HSSC for its own negligence and respondeat superior claims under which HSSC could be responsible for Alano’s conduct. On the former, the Court noted that Indiana does recognize a cause of action for the negligent hiring, supervision or retention of an employee. Although the Court noted the confusion over whether Indiana applies an “actual knowledge” or a “knew or should have known” standard, it did not matter. Hansen failed to satisfy even the lesser standard. On the respondeat superior claims, the Court stated that HSSC would be responsible for the tortious acts of Alano if they were committed within the scope of his employment. Indiana courts have held that an employee’s sexual misconduct is within the scope of his employment only when the employment itself involves extensive physical contact. Alano’s duties did not involve any physical contact. The respondeat superior claims must fail as well. Finally, the Court held that Indiana does not recognize a non-delegable duty for the safekeeping of its students.

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520 SOUTH MICHIGAN AVENUE ASSOC. v. SHANNON (December 15, 2008)

520 South Michigan Avenue Assoc. does business as The Congress Plaza Hotel & Convention Center (“Congress Hotel”) in Chicago, Illinois. It employs approximately 130 room attendants (the employees who clean guest rooms). Unite Here Local 1 union (“Unite Here”) represents these employees. Congress Hotel and Unite Here had a collective bargaining agreement (“CBA”) that expired in 2002. Congress Hotel has agreed to abide by the expired CBA while the parties negotiate a new one. During the negotiations, the Illinois legislature passed the Hotel Room Attendant Amendment (the “Attendant Amendment”) to the One Day Rest in Seven Act. In relevant part, the Attendant Amendment: a) mandates two 15-minute break periods and a 30-minute meal period each day, b) provides a penalty of three times an employee’s wages for a daily violation, c) creates a rebuttable presumption that any adverse employer action after an employee’s exercise of rights under the section constitutes retaliation, and d) provides for an award of attorney’s fees and costs to a prevailing party in an enforcement action. The Attendant Amendment applies only to employees in Cook County, Illinois. Congress Hotel filed suit for a permanent injunction prohibiting enforcement of the Attendant Amendment. It argued that the Attendant Amendment was preempted by the National Labor Relations Act (“NLRA”). The district court granted the motions of the Illinois Department of Labor and Unite Here to dismiss the case. Congress Hotel appeals.

In their opinion, Judges Manion, Kanne and Tinder reversed and remanded. The Court noted that preemption can be either express or implied. Since the NLRA contains no express preemption provision, the question is whether the state statute conflicts with federal law or frustrates a federal scheme, or whether Congress intended to occupy the field. The Court identified two different NLRA preemption doctrines from Supreme Court cases. The Court stated that Congress, in approaching collective bargaining and unions, took a multi-pronged approach. It prohibited some conduct; it protected some conduct; and it specifically left some conduct to the forces of the free market. Garmon preemption seeks to prevent conflict between local regulation and the NLRA’s scheme of regulation. In contrast, Machinists preemption seeks to prevent local regulation of conduct that Congress intended not to be regulated. The Court first addressed Machinists preemption. Three propositions have been established by the Supreme Court in its post-Machinists cases of Metropolitan Life and Fort Halifax: a) the NLRA is more concerned with an equitable bargaining process than its substantive terms, b) the NLRA does not preempt a state law that regulates a mandatory subject of bargaining, and c) the NLRA does not preempt a state law that establishes a minimum labor standard that does not intrude upon the bargaining process. The Court went on to address the defendants’ argument that the Attendant Amendment is simply a minimum labor standard. The Court decided that it is not because: a) it is not a statute of general application (it applied to only one job in one industry in one county), b) it did not provide a low-threshold (i.e., minimum) standard but rather established a term of employment that would be hard to bargain for, and c) it included provisions creating a cause of action, shifting the burden of proof and creating a presumption of retaliation that interfered with and overrode the dispute resolution mechanisms already in place. Since the Court thus found the statute preempted by the Machinists doctrine, it did not reach the Garmon doctrine or consider the Congress Hotel’s equal protection or due process arguments.

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HASAN v. FOLEY & LARDNER (December 15, 2008)

Zafar Hasan is a Muslim of Indian descent. In 2000, he joined the law firm of Foley & Lardner (“Foley”) as an associate. (The following are facts construed in a light most favorable to Hasan.) During his first year at the firm, he received mostly positive reviews and maintained high billable hours. The events of September 11, 2001 changed Hasan’s standing in the firm. Hasan’s billable hours dropped considerably and he received much less positive reviews. At a meeting in October of 2002, Foley decided to fire Hasan. The firm notified Hasan in December that he was being terminated. He filed suit in 2004, alleging that Foley violated Title VII of the Civil Rights Act. The district court granted Foley’s motion for summary judgment. Hasan appeals.

In their opinion, Judges Coffey, Ripple and Manion reversed and remanded. The Court noted that Hasan proceeded under the “direct method” of proving discrimination. Under the direct method, a plaintiff must present evidence, direct or circumstantial, that points to a discriminatory reason for the action of the employer. Courts accept three types of circumstantial evidence in a direct method case. Hasan relies on two types: a) suspicious timing, ambiguous statements, or comments directed at others in the same group, and b) evidence that the employer’s stated reasons for its conduct is not worthy of belief. Hasan’s evidence included: a partner’s anti-Muslim comments, suspicious timing in Hasan’s downturn in billable hours, the financial health of the firm, Foley’s treatment of other Muslim associates, and a changing justification for Foley’s conduct once it located Hasan’s performance reviews. The Court disagreed with the district court’s treatment of some of the evidence. It concluded, for example, that: a) evidence of an anti-Muslim comment by a partner who was not Hasan’s supervisor was valid nonetheless because the partner attended the meeting at which Foley decided to terminate Hasan (and, in fact, may have instigated the decision), b) evidence of an anti-Muslim remark made a year before the decision to terminate may nonetheless be valid circumstantial evidence when it was made at about the time when Foley began to assign work elsewhere, which in turn became a stated reason for his termination, and c) evidence regarding Foley’s treatment of other Muslims is not per se irrelevant but may be relevant depending on how closely tied it is to Hasan’s circumstances. The Court rejected Foley’s argument that Hasan failed to produce evidence of its treatment of similarly situated employees. The direct method of proof does not require such evidence. Finally, the Court noted that Foley initially claimed that it fired Hasan for poor performance but changed its stance when early, positive performance reviews were discovered and produced. They then claimed that Hasan was fired because the firm did not have enough work to keep all associates busy. The Court held that a reasonable jury could have believed both reasons to be pretext. The Court held that the totality of the evidence and possible inferences precluded summary judgment for Foley and remanded to the district court.

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KING v. CITY OF MADISON (December 4, 2008)

Gail King was a city bus driver in Madison, Wisconsin (“City”). She developed some health issues and became unable to work. After she took a six-month unpaid disability leave, the City placed her on layoff status. If she became able to return to work during the layoff period, her collective bargaining agreement gave her the right to a) displace the most junior employee in her bargaining unit with an equal or lower job classification, b) fill a vacant position within her bargaining unit for which she was qualified, or c) compete for any vacant positions in other bargaining units. When she received doctor’s permission to return to work, it was qualified by a requirement that she not drive a bus. Based on her seniority and job classification, however, driving a bus was the only job which she could choose by right. King did apply for several vacant positions outside her unit but she was found not to be most qualified and was not selected. The City terminated King after two years of leave, a remedy they were entitled to under the collective bargaining agreement. King brought this action under the Americans with Disabilities Act (“ADA”). She alleged that the City failed to accommodate her disability. The district court granted summary judgment to the City. It held that King’s medical condition did not substantially limit her major life activity and she was therefore not a qualified individual with a disability. Additionally, it held that the City provided reasonable accommodation. King appeals.

In their opinion, Judges Ripple, Wood and Tinder affirmed. The Court stated the requirements of an ADA claim. To prevail, King had to establish that she is a qualified individual with a disability, that the City was aware of her disability, and that the City failed to accommodate her disability. The Court addressed only the accommodation prong. Although an employer can accommodate a disabled person by reassigning her to a different job, an employer need not do so if it would violate a “legitimate, nondiscriminatory” policy of the employer. The City’s collective bargaining agreement is such a policy. The City complied with the policy in a neutral manner and was not in violation of the ADA.

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POWERS v. RICHARDS December 2, 2008

Robert Powers was employed by the State of Illinois in 2002 as Deputy Director of the Department of Central Management Services. Powers is alleged to have been part of a scheme to help certain state employees keep their jobs. The employees had been appointed to their jobs for four-year terms. During those terms, they could not be fired but for cause. Instead of allowing their terms to expire shortly after the election of a new governor and risk being replaced, these employees voluntarily resigned before the election. They were then reappointed to new four-year terms. Powers signed the personnel forms that were necessary for the scheme to succeed. Powers did not have the authority to sign the forms and did so knowing that the Director would not. In October of 2002, Powers took a new job as Executive Secretary of the Civil Service Commission (“Commission”). The role of the Commission is to hear appeals of state employees regarding discharges and discipline, modify personnel rules, and investigate personnel violations. Powers’ role as Executive Secretary included drafting rules and regulations, making recommendations regarding resolution of disputes, and interpreting the Personnel Code, among others. When a new governor took office in January of 2003, he began an investigation into the late appointments. The governor’s office concluded that Powers was involved in the scheme and referred its findings to the Commission. The Commission suspended Powers and authorized its Chairman to conduct a hearing. The Chairman was authorized to fire Powers if he did not produce exculpatory evidence at the hearing. The Chairman notified Powers of his rights and held a hearing. The Chairman recommended that Powers be fired – and he was. Powers received a post-deprivation hearing before an ALJ. The ALJ concluded that the firing was warranted. Powers brought suit under 42 U.S.C. § 1983. He alleged that his firing was a deprivation of his right to association because it was on account of his party affiliation. He also alleged a lack of pre-deprivation procedural due process. The defendants conceded, for purposes of summary judgment, that Powers was fired because he was a Republican. The district court granted summary judgment to all defendants. Powers appeals.

In their opinion, Judges Manion, Rovner, and Evans affirmed. The Court stated that the First Amendment does not prohibit a firing based on party loyalty if that loyalty is necessary to properly perform the job. The considerations in determining that necessity include whether the position allows for meaningful input into government decision-making and involves political discretion. The Court reviewed Powers’ job description to decide whether the position was such a position. The Court recited the job’s numerous responsibilities and concluded that they did include broad discretion to make policy, interpret the law, and speak on behalf of the Commission. The position is therefore one into which an incoming administration can appoint someone of its own party. With respect to Powers’ procedural due process argument, the Court noted that when a person is afforded a full post-deprivation hearing, a pre-deprivation hearing satisfies due process if it includes notice, an explanation of the evidence, and an opportunity to be heard. Since Powers concedes that he had all that is required, he cannot prevail. Finally, the Court was not persuaded by Powers’ unsupported claim that the Commission had already decided to fire him before the hearing.

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BREGIN v. LIQUIDEBT SYSTEMS, INC. (November 19, 2008)

Donald Bregin was employed as an accounts receivable collector for North American Van Lines, Inc. (“NAVLI”) until the late 1990s. Later, he was a consultant for SIRVA , NAVLI’s parent. In this role, Bregin was involved in NAVLI’s efforts to outsource its collection services. In fact, Bregin took part in negotiations that resulted in a contract between NAVLI and Liquidebt Systems, Inc. (“LSI”), under which LSI would perform those collection services. Bregin was also instrumental in determining the standards under which LSI’s performance would be measured. The parties agreed that SIRVA would evaluate LSI’s performance on how quickly receivables were collected. LSI stood to gain or lose $150,000 depending on whether it was able to show a 10% increase compared to prior years.  LSI hired Bregin away from SIRVA to head up LSI’s delivery of services to NAVLI. Before Bregin left SIRVA, he authored a report that concluded that SIRVA’s accounts receivable were overstated because they included amounts that should be refunded to customers. LSI was not able to meet the agreed performance goal. Bregin believed that SIRVA’s accounting practices were to blame. He reported his concerns to LSI’s management. LSI’s president had Bregin’s complaints evaluated to determine their validity. He discovered that LSI was performing so poorly that it would be subject to the penalty even if SIRVA changed its accounting practices. Bregin was removed from the SIRVA account but initially kept on at LSI. He was eventually fired in December of 2003. Bregin brought suit under Indiana law against LSI and SIRVA, alleging that LSI fired him in retaliation for his reporting the SIRVA accounting practices and that SIRVA tortiously interfered with his employment. The district court granted summary judgment to LSI and SIRVA. Bregin appeals.

In their opinion, Judges Posner, Flaum, and Evans affirmed. The Court noted that the Indiana Supreme Court has recently affirmed its adherence to the employment-at-will doctrine. Under the employment-at-will doctrine, an employer and employee can each terminate an employment relationship for any (or no) reason. The Court observed that Indiana did recognize some narrow exceptions. Bregin relied on the McClanahan exception, based on a case in which the Indiana Supreme Court allowed a cause of action for a truck driver who was fired when he refused to haul an illegal load. The act would have subjected him to personal criminal liability. The Court concluded that Bregin’s claim did not fit the exception. Bregin did not identify any criminal act he was asked to perform. Bregin also asked the Court to recognize a new exception for “whistle-blowers.” The Court rejected his request, noting that an Indiana appellate court had rejected the exception in 1980 in a case in which a “vigorous dissent” raised the same argument for the exception.

With respect to Bregin’s allegation that SIRVA tortiously interfered with his employment, the Court was critical of Bregin’s vague articulation of his claim. The Court conceded that SIRVA complained to LSI about Bregin. It also noted, however, that LSI was not meeting its performance goals and was unresponsive to SIRVA’s requests for information. SIRVA’s complaints to LSI were therefore justified and did not support a claim of tortious interference. In addition, LSI’s president testified that he alone made the decisions to remove Bregin from the SIRVA account and to fire him. Bregin cannot make out a case of tortious interference.

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ANDONISSAMY v. HEWLETT-PACKARD CO. (November 7, 2008)

Sanjay Andonissamy, a French citizen of Indian ancestry, began his employment with Hewlett-Packard (“HP”) in April of 2001. He was in the country on an HP-sponsored H-1B visa. [The following is Andonissamy’s version of the story – HP’s version differs greatly] After the events of September 11, 2001, Ken Smith, Andonissamy’s supervisor, began to make derogatory racial, ethnic, and nationalist remarks to and about Andonissamy. Andonissamy frequently complained to Smith’s supervisor. Smith placed Andonissamy on remedial performance plans, allegedly in retaliation for Andonissamy’s complaints about Smith. Andonissamy began taking medication for anxiety and depression in 2002. He was being treated, but his physician never placed him on any restricted work schedule. Andonissamy’s condition worsened in early 2003 after the deaths of his brother and nephew. In May of 2003, Smith made a false report to the company implicating Andonissamy as a security threat. HP fired Andonissamy on June 23, 2003. On September 16, Andonissamy filed an EEOC complaint alleging national origin discrimination. The EEOC dismissed his complaint and issued a right to sue letter. Andonissamy filed a complaint in federal court in April of 2004. In addition to his complaints of national origin discrimination under Title VII and 42 U.S.C. § 1981, Andonissamy added a Family and Medical Leave Act count. In November of 2005, Andonissamy added Smith as a defendant on an assault count. The district court dismissed Smith and granted summary judgment to HP. Andonissamy appeals.

In their opinion, Judges Flaum, Williams, and Sykes affirmed. The Court first addressed Andonissamy’s Title VII hostile work environment claim. In order to survive summary judgment, Andonissamy had to show that a) he was subjected to unwelcome harassment, b) the harassment was based on his national origin, c) it was severe and pervasive enough to amount to a hostile and abusive environment, and d) there exists a basis for employer liability. The Court did not address the first three elements because it found no basis for employer liability. An employer can be vicariously liable for the conduct of a supervisor but can only be liable for the conduct of a co-worker if the company was negligent in discovering or remedying the harassment. A supervisor for purposes of Title VII is the person with the ability to affect the terms and conditions of the plaintiff’s employment. Smith, although he was Andonissamy’s “supervisor” in the sense that he directed his performance, was not a Title VII supervisor. There was no evidence that Smith was able "to hire, fire, promote, demote, discipline or transfer" Andonissamy. In order to hold HP liable for the acts of Smith as co-worker, Andonissamy had to establish that he complained or that the discrimination was so pervasive that HP’s knowledge could be inferred. Although Andonissamy did complain to Smith’s supervisor, he did not specifically complain about national origin discrimination. The Court agreed with the district court that Andonissamy therefore did not make out a Title VII claim. With respect to his companion § 1981 claim, the Court stated that a plaintiff can proceed under the direct or indirect method. The direct method requires evidence that an adverse employment action was based on the plaintiff's national origin. The Court found no such evidence in the record. Under the indirect method, a plaintiff must establish, among other elements, that he was meeting his employer’s legitimate performance expectations. The Court noted that the record contained numerous references to Andonissamy’s performance problems. The Court concluded that Andonissamy was therefore unable to establish a § 1981 claim under either method.

Andonissamy’s retaliation claim could also be established under the direct or indirect method. The indirect method for retaliation, like discrimination, contains an element that Andonissamy was meeting HP’s performance obligations. The Court rejected Andonissamy’s indirect method for establishing his retaliation claim for the same reason it rejected it for his discrimination claim. Under the direct method, Andonissamy had to establish that: a) he engaged in statutorily protected activity, b) his employer took an adverse employment action, and c) there was a causal connection between the two. The Court held that his complaints to HP did not include complaints of national origin discrimination. He was thus unable to establish the statutorily protected activity element. The Court concluded that he failed to establish a retaliation claim under either method. With respect to the FMLA count, the Court noted that Andonissamy never asked for any leave and did not exhibit any dramatic changes in behavior that would have put HP on notice of a need for leave. The Court agreed with the district court that Andonissamy failed to meet his burden under the FMLA.

Finally, the Court addressed Andonissamy’s assault claim against Smith. The assault claim was added to the case after the statute of limitations on the claim had expired. Andonissamy argued that the claim related back to the original claim and was thus permissible under FRCP 15(c). The Court affirmed the dismissal, stating that a claim against a new defendant relates back only when there is a case of mistaken identity. Since Smith supervised Andonissamy for years, that cannot be the case here.

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TRIGILLO v. SNYDER (October 31, 2008)

The Illinois Department of Corrections (“Department”) created a new position in 1999 dedicated to procurement matters. The Department hired Tracy Trigillo, an attorney, into the position. Her responsibilities included managing the Department’s contracting, purchasing, leasing, and inventories. She advised department officials on legal matters. She also was responsible for ensuring that contracts were properly bid and in compliance with the Illinois Procurement Act. From early in her employment, Trigillo had concerns about the Department’s procurement practices. She frequently advised her superiors of her concerns, with little effect. In late 2000, she drafted a report that summarized many of her concerns. The report was addressed to the Department of Central Management Services (“CMS”), an agency that provided procurement support to other state agencies. Trigillo also sent the report to the state Attorney General (“AG”). The report contained some allegations of misconduct, although it was principally addressed to policy disputes. Also in 2000, one of Trigillo’s staff members told her that Department officials had rigged the bid of a contract to benefit a friend of the governor. Although the incident predated Trigillo’s tenure in the Department, she was responsible for monitoring an extension of the contract. She reported the information to the FBI but did not advise her superiors that she had done so. When her term of employment was up for renewal in late 2001, the Department chose not to renew. Although she had received acceptable performance reviews during her tenure, her supervisor stated that her approach to procurement principles was “over-zealous” and that she was not a team player. Trigillo brought an action under 42 U.S.C. § 1983, alleging that she was non-renewed in retaliation for her reports of misconduct. The district court granted summary judgment to the defendants. The court separated her speech into three categories. The court held that: a) her routine communications with her superiors were part of her normal job duties and not as a citizen speaking out on matters of public interest, b) her CMS report referred principally to policy disputes and, to the extent it did raise matters of public interest, the Department’s interest in effective operations outweighed Trigillo’s interest as a citizen, and c) her report of misconduct to the FBI was constitutionally protected but there was no evidence that the person who decided not to renew her contract knew about it. Trigillo appeals.

In their opinion, Judges Rovner, Evans, and Williams affirmed. The Court first observed that the district court entered judgment just prior to the Supreme Court’s decision in Garcetti v. Ceballos. Garcetti reaffirmed the limitations imposed by the First Amendment on a public employer’s ability to restrict the “liberties employees enjoy in their capacities as private citizens.” The role of the Court is to determine whether the speech is that of an employee doing her job or that of a private citizen reporting on a matter of public interest. Garcetti requires an inquiry into whether the speech in question relates to the employee’s official obligations, even the more general ones. Trigillo conceded on appeal that her routine communications did not meet the Garcetti standard. The Court addressed the other two categories. The Court rejected defendants’ argument that the CMS report was per se “official” because it was required by statute. The Court noted that the statutory duty was very broad and applied to all employees. Instead of looking at a broad duty, the Court looked at the speech at issue and the responsibilities of the employee. The Court held that the CMS report did not meet the Garcetti standard. The report: a) made no “accusations”, b) sought “guidance” on procurement issues, c) was written on Department letterhead, d) was signed by Trigillo in her official capacity, and e) offered her group’s resources to any investigation. The Court held that the report fit squarely within Trigillo’s responsibilities of managing the procurement practices of the Department. With respect to the FBI report, the Court agreed with the district court that Trigillo had presented no evidence that the decision-maker even knew that she made the report. It could not have been the reason for her non-renewal.

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MAHER v. CITY OF CHICAGO (October 31, 2008)

Jerome Maher, a Naval Reservist, went to work for the City of Chicago in 1990. Although he alleges that he was promised an “assistant commissioner” position, his initial position involved managing accounts receivable and developing a computer system in the Aviation Department. In February of 1991, Maher was called to active duty. He alleges that his supervisor was displeased. Upon Maher’s return in September of the same year, he was named “Director of Revenue” at an increased salary. He alleges that his supervisor continued to criticize and threaten his employment because of his military obligations. He also was forced to report to a former subordinate. Maher filed, but later withdrew, a formal complaint with the Department of Labor. He alleged that he had been denied advancement and subjected to humiliation because of his military service. After an internal reorganization in 1993, Maher was named “Manager of Finance.” He received another salary increase and a larger staff. Maher alleged that his office was unusable for a week and that other supervisors harassed and were critical of him and his service. The Navy again called Maher to active duty from August 1996 to May of 1997. The City initially refused to assign Maher to his former duties upon his return. Following complaints and meetings, Maher was given his former responsibilities in July of 1997, although two former staff members were reassigned to work for his supervisor. In January, 1998, the City transferred Maher to its Landside Operations, a division of the Aviation Department that handles ground transportation at the city’s airports. In this position, Maher developed a high-speed rail system and an intermodal facility, operated the parking facilities, and supervised snow removal. Maher sued the City in 2003. He alleged that he suffered adverse employment consequences as a result of his military service on three separate occasions: a) when the City did not give him an assistant commissioner title in 1991, b) when the City named him Manager of Finance in 1993 but again did not give him an assistant commissioner title, and c) when the City transferred him to the Landside Division in 1998. He alleged a violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). The magistrate judge granted summary judgment to the City on the 1991 and 1993 claims, concluding that Maher produced no evidence that he was hired as an assistant commissioner and produced insufficient evidence that the City’s actions were motivated solely by his military commitment. The magistrate also ruled that laches barred the 1991 action. Maher’s 1998 claim went to trial. The magistrate ruled that evidence of the 1991 and 1993 claims could not be presented at that trial. After one hung jury, a second jury found for the City. Maher appeals: a) the summary judgment on the 1991 claim, b) the exclusion of evidence of the 1991 and 1993 claim from the jury, and c) the jury verdict on the 1998 claim.

In their opinion, Judges Manion, Wood, and Williams affirmed. On the 1991 claim, the Court noted that Maher challenged only the magistrate’s laches ruling. He did not challenge the magistrate’s alternative holding that there were no genuine issues of material fact and the City was entitled to judgment as a matter of law. When a lower court provides more than one independent ground for a holding, the appellant’s failure to challenge one of them is a waiver of any claim of error with respect to the entire holding. Notwithstanding the Court’s finding of a waiver, it did also address the laches argument on the merits. The Court agreed with the magistrate. Laches requires an unreasonable lack of diligence and prejudice. Maher points to both his Department of Labor complaint and his internal complaints as evidence of his due diligence. The Court noted that the Department of Labor complaint was withdrawn eleven years before the suit was filed. One informal complaint was made five years into that eleven year period. The Court found that the two complaints did not amount to reasonable diligence. The Court also found prejudice to the City. The person who hired Maher testified that he had very little recollection of the circumstances of Maher's hiring.

The Court next addressed the magistrate’s exclusion of the evidence of the 1991 and 1993 incidents at the second trial of the 1998 incident. The Court found that the magistrate did not abuse his discretion. Neither incident was relevant to any alleged adverse employment action in 1998 and both took place before the 1998 decision-maker was in charge.

Finally, Maher challenged the sufficiency of the evidence at the 1998 trial. The Court concluded that Maher’s challenge was procedurally defective. Maher did not file either a FRCP 50(a) or 50(b) motion, both of which are required before challenging the sufficiency of the evidence on appeal. Maher conceded as much at oral argument. Nevertheless, the Court proceeded to analyze his argument under the “heavy burden” of a sufficiency of the evidence challenge. Under the USERRA, Maher must establish that he suffered an adverse employment action motivated at least in part by his military service. The Court found against Maher on both points. Maher relied on the facts that he lacked a staff, was not using his CPA qualifications, had a supervisor with less college education, and was responsible for snow removal. The Court held that none of these establish the existence of an adverse employment action. In his new position, he was responsible for large-scale projects involving hundreds of millions of dollars and handled millions of dollars of billing. An adverse employment action must be more disruptive than just a change in responsibilities. Maher also did not establish that a reasonable juror must have found that hostility toward his service was the reason for his transfer. Maher relied on the promotions of others ahead of him, but the person who transferred Maher to Landside was not the same person who promoted the others. When different decision –makers are involved, said the Court, one should not conclude that the difference in their actions was the result of discrimination. The jury had the opportunity to make the inferences that Maher argued – but it didn’t. They were not required to on the record in the case.

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BELL v. DAIMLERCHRYSLER CORP. (October 29, 2008)

In the late 1970s through 1980, DaimlerChrysler Corp. (“Chrysler”) laid off hundreds of workers at its New Castle, Indiana plant. The workers were members of the United Auto Workers (“the union”). The union and Chrysler were parties to a collective bargaining agreement and over seventy side letters. The side letters were collected in a so-called “Book of Letters.” The agreement between Chrysler and the union provided laid-off workers a preference over other applicants for job openings at any Chrysler facility within fifty miles of their former work locations. Later side letters expanded the area of preference to any opening within the same state as the employee’s last work location. From 1984 to 1987, Chrysler hired over seven hundred workers at its Kokomo, Indiana plant. It did not offer these jobs to the workers who had been laid off from the New Castle plant. In 2002, Local 371 of the union filed two grievances charging that Chrysler violated their labor agreements by not offering the Kokomo jobs to the laid-off workers. The grievances were filed pursuant to a multiple-step procedure defined by the labor agreements. Chrysler denied the grievances as untimely. Local 371 continued to pursue the grievances to the Appeal Board step of the procedure. At that step, the national union representative decide to withdraw the grievances. The basis for his withdrawal was twofold. First he believed that they were untimely. Second, they also presented significant proof problems due to the deaths and retirements of many necessary witnesses. A local or an individual union member can appeal a grievance withdrawal within thirty days. No appeal was taken of the withdrawal. Two groups of Chrysler employees filed suit in federal court pursuant to section 301 of the Labor Management Relations Act. They alleged that Chrysler breached its obligations under the labor agreements. After the two suits were consolidated, the district court granted summary judgment to Chrysler. The court held that the plaintiffs failed to exhaust their administrative remedies. The plaintiffs appeal.

In their opinion, Judges Flaum, Rovner, and Sykes affirmed. The Court noted the hybrid nature of a section 301 suit. Chrysler and the union have agreed to resolve their disputes privately. Union members must avail themselves of that process, up to and including binding arbitration. In a section 301 suit, the union member complains of an employer’s violation of the labor agreement but also complains of the union’s breach of its duty of fair representation with respect to that violation. A member cannot generally bring a section 301 suit until she has first exhausted all her available administrative appeals. There is no dispute in the case that the plaintiffs failed to exhaust available appeals. The Court noted that the Supreme Court, in Clayton v. UAW, has identified situations where that failure can be excused. They are: a) futility – where the union has displayed such hostility to the grievance that further appeals appear futile, b) inadequacy – where the procedure cannot lead to reinstatement of the grievance or result in full relief, and c) undue delay – where exhaustion of all appeals will result in undue delay. The plaintiffs take the position that futility and inadequacy excuse their failure to exhaust.

The Court first addressed plaintiffs' inadequacy argument. The plaintiffs argued that Chrysler should not be allowed to rely on one of the side letters because: a) Chrysler failed to raise it until its reply brief, and b) the collective bargaining agreement contained an integration clause. The Court rejected the arguments. It stated that: a) Chrysler’s reference to the side letter was in response to plaintiffs’ argument and properly appeared in their reply, and b) the plaintiffs could have filed a surreply to Chrysler’s reply, if they wanted an opportunity to address the document. The Court further held that the plaintiffs waived the integration clause argument by not raising it in the district court. The Court also rejected plaintiffs' argument that they are excused from further appeals because the appeals could not have provided them with full relief. The second Clayton factor of inadequacy excuses exhaustion only if neither reinstatement nor full relief is possible. Further appeals could have resulted in a reinstatement of the grievance. Plaintiffs’ final argument on the inadequacy factor is that they did not even know of the existence of the side letter. The Court conceded that plaintiffs did lack knowledge of the side letter. The Court concluded, however, that there was an insufficient record to excuse them from that knowledge. They knew of the existence of several side letters and made no showing that, with due diligence, they could not have discovered the letter.

With respect to the futility factor, the plaintiffs simply rely on one union representative’s comment that the appeal was a “dead issue” and the general lack of support or direction they received from the union. The Court noted that it had “repeatedly rejected” those kinds of statements as demonstrating the pervasive hostility required by the first Clayton factor. The district court did not abuse its discretion in granting summary judgment.

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KAY V. BOARD OF EDUCATION (October 27, 2008)

Gail Kay taught in the Chicago public school system. After she retired in 1994, she brought a § 1983 action against the Board of Education (“Board”). She alleged that the Board penalized her on account of her speech. The parties settled the litigation in 1996 and her case was dismissed. In the settlement, the Board offered to rehire Kay into an available future position. In 1997, she was offered an opportunity to return to her former school. She taught for seven more years – yet she never received another paycheck. After retiring again in 2004, she brought suit against the Board in federal court to enforce the 1996 settlement, alleging that her seven years of teaching without pay was a breach of the settlement. The district court dismissed the case on its own accord for “lack of venue” because Kay was governed by a collective bargaining agreement that required arbitration. Kay appeals.

In their opinion, Chief Judge Easterbrook and Judges Sykes and Tinder vacated the judgment of the court and remanded with instructions to dismiss for lack of subject matter jurisdiction. First, the Court listed several reasons why the court erred in dismissing the suit because of the collective bargaining agreement’s arbitration clause: a) only the union and employer can invoke the clause, b) a settlement of a dispute is not arbitrable as a claim arising under the agreement, c) a collective bargaining agreement cannot require the arbitration of civil rights claims, and d) the Board cannot compel arbitration with a volunteer, which they claim is Kay’s status. The panel also criticized the court below for acting independently, without benefit of the views of the parties.

Although the Court held that the lower court erred in dismissing the complaint, it identified (and asked for supplemental briefing on) a different problem. The Supreme Court’s decision in Kokkonen v. Guardian Life Ins. Co. makes clear that the vehicle for enforcement of a settlement of a federal case is a contract claim, which cannot be brought in federal court unless it qualifies independently under diversity principles. Apart from a settlement, a state’s wage-payment statute is the proper vehicle for a claim for unpaid wages. Kay conceded that she has no federal claim to enforce the settlement or for unpaid wages. She asserted, however, a claim that the Board’s failure to abide by the settlement is further retaliation for her assertion of constitutional rights. The only assertion of rights she maintains, however, are those that pre-dated the settlement. The Court noted that the Board’s failure to pay cannot be deemed a revived retaliation claim under Kokkonen. Finally, the panel did consider whether the Kokkonen rule applied in the context of a state actor defendant. It held that the Constitution does not require a state actor to keep its promise; it only requires some process before depriving a person of property. Kay’s opportunity to litigate her case in state court is process enough.  

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AMRHEIN v. HEALTH CARE SERVICE CORP.  (October 20, 2008)

Kitsy Amrhein was a group specialist in Health Care Service Corp.’s (“HCSC”) Springfield office. Her principal duty was to service employers that have Blue Cross/Blue Shield Insurance. Amrhein and Scott Redpath became group specialists at the same time. In addition to Amrhein and Redpath, the group consisted of six other women. The group all reported to Benner, who reported to Marquedant, who reported to Woods. In late 2002, Amrhein became convinced that Redpath was performing at a lower level than she but receiving preferred treatment. She made her opinion known to others, including Benner, and continued to do so throughout 2003. HCSC disciplined Amrhein twice in 2003, once for disclosing competitive information and once for excessive personal phone use. After the discipline for the telephone use, things started to heat up.

• Amrhein, Brenner, and Marquedant met in early December to discuss the telephone issue. At that meeting, Amrhein first said that she was considering filing an EEOC complaint.
• In December, Marquedant initiated a human resources investigation in response to an Amrhein e-mail complaint. In January of 2005, Amrhein met with Marquedant and the human resources representative. The human resources representative reported that the investigation revealed no evidence of gender discrimination towards Amrhein. Again, Amrhein said she was going to file an EEOC complaint.
• In January, Marquedant monitored a phone conversation where Amrhein revealed what Marquedant believed was confidential information.
• In early February, Woods asked her supervisor for help in dealing with Amrhein. She referred to Amrhein as a “huge challenge,” “disruptive,” and “costing a huge amount of time and resources.”
• At a meeting in February regarding personal time, Amrhein complained about her inability to use some accrued time. Marquedant told Amrhein that she had opened a “can of worms” and that she should not have “made the complaint.” Witnesses stated that Amrhein became very argumentative with Marquedant, but Amrhein denies it.

HCSC terminated Amrhein on March 1 for her insubordination at the February meeting and the improper confidential information disclosure in January. Amrhein brought an action pursuant to Title VII of the Civil Rights Act of 1964. She alleged that HCSC discriminated against her on the basis of gender and that HCSC retaliated against her because of her complaints about the discrimination. The district court granted summary judgment for HCSC. Amrhein appeals.

In their opinion, Judges Bauer and Wood affirmed. Judge Rovner dissented. Amrhein did not appeal the judgment on the discrimination itself so the Court addressed only the retaliation claim. The majority observed that an employee can establish discrimination for opposing an unlawful business practice in two ways. In the first (the direct method), she must show a) a statutorily protected activity, b) the employer’s materially adverse action, and c) a causal connection. The majority concluded that Amrhein’s circumstantial evidence was insufficient to support an inference that her termination was related to her threat to file an EEOC complaint. The Court agreed that the timing of events can provide that inference, but found that the almost three month period between Amrhein’s first “threat” to file a complaint and her termination was too attenuated to do so. In the second (the indirect method), an employee can show a) a protected activity, b) her performance meeting legitimate employment expectations, c) an adverse employment action, and d) less favorable treatment than a similarly situated employee who did not engage in the protected activity. The Court concluded that Amrhein did not identify a similarly situated individual. Such an individual need not be identical, but must be comparable in material respects. None of the three individuals suggested by Amrhein had comparable disciplinary histories. The Court added that even if Amrhein had met her indirect method burden, there was ample evidence to support HCSC’s proffered reasons for the termination.

Judge Rovner dissented, admitting that it was a close case. She focused on the statements of Woods and Marquedant in February, just before the decision to terminate. She believed that they implied a retaliatory intent and that the Court should treat the case as a mixed motive case. In such a case, the employer must prove that it would have made the same decision had it not considered the protected activity. Judge Rovner noted that mixed motive cases are rarely summary judgment cases. Because of the questions of fact regarding whether HCSC would have fired Amrhein absent their unlawful motive, she would remand the case for trial.

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CHAUDHRY v. NUCOR STEEL  (October 15, 2008)

Subhash Chaudhry has worked at Nucor, which manufactures rolled steel sheets, since 1988. In 2007, he worked as a Quality Control Inspector (“QCI”). [The following are allegations of the complaint, taken as true.] His responsibilities included inspecting the rolled steel sheets produced at the temper mill. Nucor increased the pay grades of some QCIs in 2003, but not those, like Chaudhry, who worked at the temper mill. Chaudhry’s complaints fell on deaf ears. Chaudhry complained that some of his co-workers made fun of him and called him names. Those complaints were ignored as well. Chaudhry also tried to improve his salary through a program in which QCIs who attended a training session and made four customer visits in a year could qualify for a pay grade increase. Chaudhry frequently asked for opportunities to make a customer visit.  Nucor controlled the visits and never gave him such an opportunity. On July 28, 2006, Chaudhry filed a charge of discrimination with the EEOC. He alleged that Nucor’s failure to give him the pay raise that they gave other QCIs amounted to discrimination against him on account of his race, religion, and national origin in violation of Title VII of the Civil Rights Act of 1964. He further stated that Nucor had prevented him from making customer visits and qualifying for a pay grade increase. In a later letter to the EEOC, he complained of the harassment. On February 7, 2007, Chaudhry filed suit alleging that Nucor violated Title VII by: a) raising the salaries of other QCIs whose jobs required less effort, b) informing other QCIs of customer visit opportunities, and c) failing to control the employees’ harassment of him. Nucor initially answered the complaint. A few months later, however, the Supreme Court decided Ledbetter. Nucor, relying on Ledbetter, asked the district court to dismiss the complaint. The court agreed and dismissed the pay discrimination claim. It also dismissed the harassment claim, holding that it was not a part of the EEOC charge and Chaudhry’s letter did not expand the scope of the charge. The court then dismissed the case and entered final judgment (the same day) without addressing the customer visit charge. Chaudhry attempted to amend his complaint to add a § 1981 claim. Nucor objected because judgment had already been entered. In his reply, Chaudhry asked the court to treat his motion as a motion to amend the judgment. The court apparently did so but treated the date of the reply brief as the date of the motion and denied it as untimely. Chaudhry appeals.

In their opinion, Judges Bauer, Flaum, and Williams reversed and remanded. The Court began its analysis with Title VII and Ledbetter. Before filing a Title VII complaint, an employee must file a charge with the EEOC. The charge must be filed within 300 days of the alleged unlawful employment practice. The alleged unlawful employment practice, under Ledbetter, is the single, discrete unlawful act at issue, even if the effects of the act continue with each paycheck. The Court agreed with the conclusion of the district court that the discrete act with respect to the raise claim was Nucor’s June, 2003 decision to give raises to the other QCIs. Since Chaudhry did not file his charge within 300 days of that date, the district court correctly dismissed this claim.

With respect to the customer visit claim, however, the same analysis produced a different result . The Court observed that Chaudhry’s EEOC charge and complaint alleges that Nucor denied him a raise every year by preventing him from participating in customer visits. Each of those decisions was a new violation. Since Chaudhry filed his charge within 300 days of the last of those acts, his customer visit claim is not time-barred by Ledbetter. The Court also rejected Nucor’s claim that its alleged failure to notify Chaudhry of a customer visit opportunity was not a materially adverse employment decision. The failure to notify deprived Chaudhry of compensation which he would have earned, at least as the complaint reads, but for the failure.

The Court commented on the pleading amendment dispute as well, although the remand eliminated any need to decide the issue. The Court criticized the district court, referring to its actions in entering judgment on the same day it granted the motion to dismiss as “unorthodox” and its handling of the motion to reopen as “hyper-technical.”

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LINEBACK v. SPURLINO MATERIALS  (October 8, 2008)

Spurlino Materials (“Spurlino”) produces and sells concrete. In 2005, several employees began a union representation effort. Spurlino management allegedly campaigned heavily against the union. Notwithstanding those efforts, the company employees voted to be represented by the union. The NLRB certified the union and it began negotiating its first contract with Spurlino in early 2006. The parties continued to negotiate through early 2007, but were unable to agree on contract terms (and apparently still have not). Attendance at union meetings declined during this period, possibly because of fears of retaliation by Spurlino. Spurlino management allegedly continued an intense harassment campaign against the union.

Spurlino historically used a seniority-based dispatch procedure. Spurlino sent out each of its drivers in order of seniority until each had been given one assignment. The rest of the assignments for each day were dispatched in order of each driver’s return from his or her original assignment.  In December of 2005, Spurlino was awarded a large contract to provide concrete for the construction of a new football stadium for the Indianapolis Colts. A separate labor agreement covered the stadium project. Stadium contractors paid higher wages under the separate agreement than Spurlino normally paid its employees. Thus, Spurlino drivers preferred the stadium work over other Spurlino assignments. The union alleges that Spurlino used the opportunities provided by the stadium contract to retaliate and discriminate against the leaders of the union movement. It claims that Spurlino a) manipulated the seniority dispatch system to keep the union leaders from the preferred jobs at the stadium, b) changed the way work was assigned when it built a temporary, portable plant, and c) instituted a thirteen-factor performance review to discriminate against union leaders. In August of 2006, the union filed a series of unfair labor practice charges against Spurlino. They were consolidated into an NLRB complaint that alleged that Spurlino: a) discriminated against union leaders because of their activities, b) changed pre-existing work assignment policies without negotiation, and c) implemented an evaluation procedure without negotiation. The ALJ commenced a hearing. During a hearing recess, in May of 2007, the NLRB requested injunctive relief from the district court pending a final Board decision. In June, the court entered an order enjoining Spurlino from a) retaliating against union members, b) acting unilaterally to change the terms and conditions of employment, c) refusing to bargain in good faith, and d) interfering with employees’ exercise of their rights. Spurlino appeals. Shortly after Spurlino’s appeal, the ALJ issued its order. It concluded that Spurlino had discriminated against union leaders and had unilaterally changed the terms and conditions of employment. That order is on appeal before the NLRB.

In their opinion, Judges Bauer, Ripple, and Manion (concurring) affirmed. The Court noted that the National Labor Relations Act authorizes injunctive relief, pending resolution of an NLRB claim, in “just and proper” circumstances. The factors are the same as those that apply to injunctive relief in other contexts: a) no adequate remedy at law, b) irreparable harm that outweighs harm to the employer, c) the public interest, and d) likelihood of success on the merits. The Court addressed each in turn. NLRB proceedings are frequently slow, potentially allowing time for employers to “chill” union activities. Especially in the case of new union representation, there is a risk that no remedy at law will adequately address the harm. On the issue of irreparable harm, the lower court had clear evidence of Spurlino’s hostility toward the union and continued discrimination toward the union and its leaders. The public interest was served by an order prohibiting an unfair labor practice. The district court had found “strong showings” of likelihood of success on the discrimination and unilateral changes in the terms of employment charges and “at least a substantial showing” on the good faith bargaining charge. The Court concluded that the district court considered the right factors and it found no error in its evaluation of them. It did not abuse its discretion.

The Court next addressed the scope of the injunction entered by the district court. Spurlino argued that each of the four paragraphs of the injunction was overbroad. The Court addressed each paragraph in turn under the FRCP 65(d) requirement that injunctions be specific and “describe in reasonable detail” the acts enjoined. The Court also noted that a court may enjoin acts a) which are similar to acts it has found to be unlawful and b) whose commission, if not enjoined, can fairly be anticipated from the defendant’s past conduct. Spurlino argued that paragraphs 1 and 2 were overbroad. Paragraph 1 enjoins retaliation against “all” union members, even though the complaint alleges retaliation against a few named leaders. Paragraph 2 enjoins “all” unilateral actions to change terms and conditions of employment, though the complaint’s allegations were less broad. The Court relied on the district court’s finding of a “continuous and deliberate” effort by Spurlino to undermine the union in holding that these paragraphs were not overbroad. Paragraph 3 enjoins Spurlino from refusing to bargain in good faith. The complaint’s allegation of refusal to bargain was limited to the portable plant. The Court also upheld this paragraph, relying on the district court’s finding that Spurlino engaged in a pattern of refusals to bargain and that further refusals were likely to occur, if not enjoined. Paragraph 4 of the injunction broadly enjoined Spurlino from “in any like manner interfering with, restraining, or coercing employees’ exercise of their rights.” The Court observed that the provision was similar to a provision struck by the Supreme Court in NLRB v. Express Pub. Co.. However, it relied on the addition of the word “like,” not present in the Express injunction, to uphold the paragraph as within the power of the court to enjoin related unlawful acts.

Judge Manion concurred. He wrote separately to emphasize that the injunction against refusing to bargain in good faith does not enjoin “any” refusals to bargain. It only enjoins refusals that are similar to the refusals alleged by the NLRB and found by the district court.

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TATE v. EXECUTIVE MANAGEMENT SERVICES  (October 10, 2008)

Alshafi Tate started working for Executive Management Services (“EMS”) as a commercial building cleaner in August, 2002. Dawn Burban was his immediate supervisor. Tate alleges, and Burban denies, that he and Burban began a long, consensual sexual relationship almost immediately. Tate also alleges, and Burban denies, that when he tried to end the relationship in late 2003, Burban threatened that he would lose his job if he did so. They both agree that they had a heated argument in Burban’s office in January 2004. Tate claims that it occurred when he finally insisted that he was ending the relationship. Burban claims it resulted from Tate’s refusal to perform a proper work assignment. Burban called her supervisor, who told Burban to tell Tate to go home. Burban also called her district manager and reported Tate for insubordination. Tate tried to reach both the supervisor and district manager the next day to relate his side of the story. Instead, he was told he was fired for insubordination. Tate filed suit, alleging both sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964. The jury found for EMS on the sexual harassment claim and in Tate’s favor on the retaliation claim. The district court denied EMS’ FRCP 50(b) motion on the retaliation claim. EMS appeals.

In their opinion, Judges Bauer, Posner, and Williams reversed. The Court laid out the elements of Tate’s Title VII retaliation action: a) a statutorily protected activity, b) the employer’s adverse action, and c) a causal relationship. To show he engaged in protected activity, the Court stated that Tate had to show a reasonable belief that he opposed a practice that violated Title VII. There is a split in the circuits on the issue of whether the rejection of a supervisor’s sexual advances could amount to protected activity. The Court decided that it did not have to take a position on the issue. Instead, it found no evidence that Tate actually believed Burban’s conduct was unlawful. The Court recognized that Tate protested Burban’s actions. But it found that the evidence supported the conclusion that his protests were personal, not because he believed that Burban’s behavior was unlawful. Title VII exists to protect employees from retaliation for protesting discrimination they, in good faith, believe they have suffered. Tate does not meet the protected activity element.

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BURRUS V. STATE LOTTERY COMMISSION  (October 6, 2008)

Indiana created the State Lottery Commission of Indiana (the “Commission”) in 1989 to operate lottery games in the state. The legislature set it up to operate as a “separate body politic and corporate” from the rest of state government. The legislature authorized up to $18 million in start up costs. The Commission only used $6 million and repaid that within the year. The lottery has been quite successful. It has generated over $3 billion in profits since its inception. The governor appoints the director and five commissioners who operate the lottery. The Commission has the authority to sue and be sued. It operates independently of the state, although it is heavily regulated by the state.  The Commission deposits all of its revenue into a fund separate from the state’s general revenue fund. The funds are first used to pay for the prizes and operating costs. Each quarter, the remaining funds are disbursed to the credit of the state teachers’ retirement fund ($7.5 million) and the pension relief fund ($7.5 million). Any quarterly surplus is transferred to a fund which is used to support local and state capital projects.

Between January and May of 2005, seven employees of the Commission were fired. They all sued the Commission under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. Each alleged that he or she was fired as a result of his or her race. The Commission moved to dismiss the § 1981 claims on the grounds of sovereign immunity. The district court denied the motion. The Commission appeals.

In their opinion, Judges Bauer, Ripple, and Manion affirmed. The appeal raised only one issue – whether the Eleventh Amendment shields the Commission from the §1981 claims. The Court began with the basic proposition that unconsenting states, and their agencies, are immune from federal lawsuits under the Eleventh Amendment. Here, the parties simply disagreed over whether the Commission is a state agency. The Court listed the two factors that generally determine that issue. The first, and most important, is the degree of financial autonomy from the state. The other factor is the general legal status of the entity. The Court observed that the Commission’s complete lack of financial reliance on the state and the total lack of responsibility by the state for any of the Commission’s obligations strongly weighed against finding the Commission to be an agency of the state. While it is true that a judgment against the Commission would deprive the state of revenues it otherwise would have received but for the judgment, the panel noted that the Supreme Court had rejected that “state-benefit” theory of financial dependence.

The second prong of the test, general legal status, also supports the Court’s conclusion that the Commission is not an agency of the state. The Court pointed to a number of factors to support its conclusion: a) it sets its own budget, b) it controls its day-to-day operations, c) it sues in its own name, and d) it enters into contracts in its own name. The fact that the governor appoints the commissioners was given little weight by the Court given the Commission’s financial independence. Finally, the Court noted that the fact that the lottery is the subject of much state regulation does not change the result that the Commission is not an agency of the state and not immune from suit.

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EEOC v. LEE’S LOG CABIN  (October 6, 2008)

Korrin Stewart was diagnosed as HIV-positive when she was just fourteen years old. Shortly thereafter, she learned that it had actually developed into AIDS. At the age of eighteen, she applied for a server position at Lee’s Log Cabin (“Lee’s”). She was aware that the job had a 25-30 pound lifting requirement. Nevertheless, she stated on her application that she could lift no more than 10 pounds and that there were no accommodations that would allow her to perform that requirement of the job. After some time went by without a response from Lee’s, Stewart visited the restaurant and spoke with Zastrow, an assistant manager. In response to Zastrow’s question, Stewart admitted that she was the same person who had alleged that a prior employer had fired her when the employer learned that she was HIV-positive. Stewart also saw a copy of her application, on which appeared the notation “HIV+.” Lee’s did not offer the position to Stewart, ostensibly on the ground that she had no server experience and could not meet the lifting requirement. The EEOC filed suit, alleging that Lee’s violated the Americans With Disabilities Act (“ADA”). The EEOC alleged that Lee’s failed to hire Stewart because it learned that she was HIV-positive. About one month before trial, in response to Lee’s motion for summary judgment, the EEOC presented affidavits from Stewart and her doctors describing how AIDS affected her daily activities. The EEOC presented no separate evidence that HIV affected her daily activities. The district court refused to consider the affidavits because the EEOC had never pleaded the presence of AIDS. Without the affidavits, there was no evidence in the record of the effect of HIV on Stewart’s daily activities. The court granted summary judgment for Lee’s, also noting that a) there was no evidence that Lee’s knew Stewart had AIDS, and b) there was a question whether she met the “qualified individual” element of the statute because of the lifting requirement. EEOC appeals.

In their opinion, Judges Kanne and Sykes affirmed, Judge Williams dissenting. The majority started with the fundamentals. The ADA prohibits employment discrimination “against a qualified individual with a disability because of the disability.” Whether an individual is disabled is an individual inquiry into whether the impairment “substantially limits” the individual’s major life activities. The Court commented that the EEOC “complicated” the inquiry by attempting to refashion its claim as an AIDS claim late in the case. The Court called it a “major alteration” of the EEOC’s case. The Court focused on the Supreme Court’s Bragdon decision and its description of the development of the disease. Noting that there are significant symptomatic differences at different stages of the disease, the Court thought that whether Stewart was HIV-positive or had AIDS was highly relevant to the case. Once the Court concluded that the district court had not abused its discretion in disallowing the affidavits, it had little difficulty agreeing with the proposition that the record was devoid of evidence of the effect of HIV on Stewart’s major life activities.

The Court went on to address, as an alternative ground for affirming summary judgment, the issue of whether Stewart was a “qualified individual.” A “qualified individual” is a person who can perform the essential functions of the job, either with or without reasonable accommodations. The Court held that Stewart was not a “qualified individual,” given her statement in her application that she could not meet the lifting requirement of the job, even with an accommodation.

Judge Williams dissented. She pointed out that HIV and AIDS are not different conditions. Rather, AIDS is simply the final stage of a single disease – HIV. Different stages of the disease are also not necessarily accompanied by different symptoms. Stewart never ceased being HIV-positive. The evidence of the effect of AIDS on Stewart’s daily activities also described the effect of HIV on her activities. Judge Williams compared it to a cancer patient progressing through different stages of the disease. She believed that the EEOC had sufficiently presented evidence that Stewart’s disease substantially limited her major life activity. She also believed that there were questions of fact with respect to the “qualified individual” issue. There was a dispute as to whether the lifting requirement was truly an essential function of the job. Stewart’s testimony that her lifting restriction was temporary also raised a question of fact with respect to her application answers. 

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