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

BARTON v. ZIMMER, INC. (October 18, 2011)

Zimmer, Inc. sells artificial hips and knees. It employed Bruce Barton as part of its sales force since 1993. Andy Richardson became Barton's supervisor in 2004. Richardson eliminated many of Barton's duties over the course of the next year, most likely due to age discrimination (conceded, for purposes of argument, by Zimmer). Barton complained to Human Resources representative Richard Abel after a negative May 2005 performance review. Able investigated the situation, met with Barton and Richardson, and ultimately recommended that Richardson be fired for his divisive leadership. In the meantime, Barton had been on vacation,FMLA leave, and paid administrative leave. In September, Barton returned and began reporting to Sherri Milton. Barton complained about the assignments he received from Milton and filed an EEOC charge, alleging that the assignments were in retaliation for his earlier EEOC charge against Richardson. After Milton criticized his performance, Barton suffered a mental breakdown. He used up his FMLA leave, as well as his short and long-term disability benefits. The Social Security Administration granted a total disability benefits claim and Burton retired from Zimmer. Barton filed suit against Zimmer for ADEA discrimination and retaliation and FMLA interference. Judge Springmann (N.D. Ind.) granted summary judgment to Zimmer. In part, she concluded that Barton could not prevail on his ADEA claim because he was only seeking front pay, not reinstatement. Barton appeals.

In their opinion, Seventh Circuit Judges Evans (who, as a result of his death, took no part in the decision), Sykes, and Hamilton affirmed. The Court first addressed the Richardson ADEA claim. It disagreed with the district court's conclusion that front pay is not available because of the statute's compensatory damages exclusion. In Pollard, the Supreme Court held, in the context of Title VII, that front pay could be an appropriate substitute for reinstatement if the reinstatement remedy was not viable as a result of psychological injuries caused by the discrimination. The Court assumed that the Pollard Title VII approach would apply in an ADEA case but concluded that Barton was not entitled to it. Here, Barton’s psychological injuries that precluded his reinstatement arose out of the job assignments from Milton, not from Richardson. The Milton job assignments were not the result of any age discrimination. The Court turned to the ADEA retaliation claim. To prevail, Barton was required to show a statutorily protected activity, a materially adverse employment action, and a causal relation between the two. The Court concluded that Barton's challenging new job assignment was probably not a materially adverse employment action but that, even if it was, no reasonable jury could conclude that Milton assigned the task to him in retaliation for his protected activity. The project was important to the company and Barton's work history showed that he was qualified to complete it. Finally, the Court addressed the FMLA interference claim. The FMLA requires employers to restore an employee to his prior or equivalent position upon the termination of leave. It is true that Barton was not returned to his prior position since most of his duties had been eliminated and the few projects he had were completed. The record supports, however, the conclusion that Zimmer assigned him to the same duties he would have had he not taken leave. The FMLA requires no more.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

RABE v. UNITED AIR LINES (February 28, 2011)

United Air Lines hired Laurence Rabe as a flight attendant in 1993. Although United assigned her to fly out of Paris , she signed an employment agreement in Chicago. Pursuant to the terms of the agreement, she was to perform her work on United's aircraft, she was required to join the flight attendants' union in the United States, she agreed that her employment would be governed by United States law, and she agreed that only a United States court would have jurisdiction over any employment claim. Rabe transferred to Hong Kong in 1997. She was on leave between 2002 and 2005, when she returned to Hong Kong. She was fired in 2008 amid allegations that she had misused travel vouchers. Rabe brought suit pursuant to Title VII, the Age Discrimination and Employment Act, and the Illinois Human Rights Act. She alleged that the real reason for her termination was the fact that she was a lesbian. Judge Pallmeyer (N.D. Ill.) dismissed the complaint, concluding that she lacked subject matter jurisdiction because Rabe was a non-citizen working principally outside of the country. The court did not address United's argument that the claims were precluded or preempted by the Railway Labor Act. Rabe appeals.

In their opinion, Chief Judge Easterbrook and Judges Coffey and Hamilton reversed and remanded. The Court first corrected the nature of the issue. Although Title VII and ADEA generally do not protect non-citizens working outside the country, it is not because district courts lack subject matter jurisdiction. The Supreme Court, in Arbaugh, held that Title VII's minimum employee threshold is a merits question, not a jurisdictional one. That same analysis applies here. Therefore, the Court concluded that the district court should have treated United’s argument as a motion to dismiss for failure to state a claim. On that issue, the Court stated that whether Rabe was protected by the statutes was debatable. Her recent employment involved very few flights to or from the United States, but her earlier employment mostly involved United States flights. The Court also noted without deciding that the United States registration of the aircraft on which she worked might be enough to justify statutory protection. Ultimately, though, the Court concluded that United’s motion to dismiss should have been denied for other reasons. United elected to protect itself from the uncertainties associated with international employment by insisting, in the employment agreement, that Rabe's employment was to be governed by United States law. She agreed. Therefore, in addition to her colorable statutory claims, she has state law claims for breach of contract or promissory estoppel. She should have been allowed to proceed on those claims. The Court also decided to address the Railway Labor Act question, although the district court did not. It concluded that the claims were not precluded or preempted because they are not based on the collective bargaining agreement and will not require a construction of that agreement.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

OPP v. STATES ATTORNEY OF COOK COUNTY (December 29, 2010)

Christine Opp, Edward Barrett, and Leonard Cahnmann were each employed as Cook County Assistant State's Attorneys as of the end of 2006. Each of them was dismissed in the first three months of 2007, ostensibly for budgetary reasons. Each of the three filed suit claiming that his or her dismissal was a violation of the Age Discrimination in Employment Act ("ADEA"). Judges Bucklo, Leinenweber, and Castillo (N.D. Ill.) each granted the defendants' motion to dismiss on the grounds that the plaintiffs were excluded from ADEA coverage because they held policymaking positions. The plaintiffs appeal.

In their opinion, Seventh Circuit Judges Bauer, Sykes, and Hamilton affirmed. ADEA excludes from the definition of "employee" elected officials, anyone on an elected official's staff, or an appointee of an elected official "on the policymaking level." The Court noted that, unlike the Second Circuit, it applies the same test in an ADEA case that it applies in a First Amendment political affiliation case. That test is whether the position authorizes "meaningful input into governmental decision-making." In applying the test, a court should look at the powers inherent in the job rather than any one person’s actual duties. The powers inherent in the position of Assistant State's Attorney are set by state law and have been described in prior decisions of the Court. In fact, an Assistant State's Attorney is a surrogate for the State's Attorney and does have the power to create policy. The plaintiffs therefore hold policymaking positions and are not covered by ADEA.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

VAN ANTWERP v. CITY OF PEORIA (December 6, 2010)

Gene Van Antwerp served as a Peoria patrol officer for 18 years. The Police Department announced two vacancies in the Crime Scene Unit, one immediate and one a few months later, in September 2006. Van Antwerp applied. The Department offered the immediate slot to Officer Tuttle. They offered the delayed slot to Van Antwerp. The decision-makers actually believed that Officer Wong was a better candidate but they selected Van Antwerp because Wong was a month shy of the required seniority. A few months later, the Department rescinded Van Antwerp's offer. It reposted the same job several months later and offered it to Wong, who now had the requisite seniority. Although the Department offered no explanation at the time, it later stated that the vacancy was delayed because the incumbent's promotion was delayed. Van Antwerp, who was 50 years old at the time of his application, brought suit against the City of Peoria, alleging that its conduct violated the Age Discrimination in Employment Act (ADEA). Judge McDade (C.D. Ill.) granted summary judgment to the City. Van Antwerp appeals.

In their opinion, Seventh Circuit Judges Posner, Kanne, and Williams affirmed. ADEA makes it illegal to discriminate against a person because of his age. However, in order to prevail on such a claim, the plaintiff must establish that age played a role in and actually motivated the decision. The Court analyzed Van Antwerp's claim under the direct method of proof -- and found it lacking. First, the Court concluded that he offered insufficient evidence of pretext. Even his strongest evidence would not allow an inference that the Department lied. It might allow an inference of error, but that is not enough to show pretext. The Court added that Van Antwerp's claim would fail even if he successfully established pretext. He had to show that the Department's made its decision because of his age. There is actually no evidence in the record that age was the reason the Department rescinded his transfer. The Court briefly considered Van Antwerp's claim under the indirect method. The claim fails under that method both because Van Antwerp waived it and because he was unable to show pretext.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

RUNYON v. APPLIED EXTRUSION TECHNOLOGIES (August 30, 2010)

Timothy Runyon began working at Applied Extrusion Technologies' (AET) Terre Haute, Indiana plant in 2005 at the age of 45. A few months later, the company hired Troy Corbett, about fifteen years his junior. The two men worked for the same supervisor and had the same job title. Runyon had two fairly serious and heated altercations with coworkers in his first seven months on the job. Then, in February of 2006, Runyon and Corbett got into a heated argument that escalated into a fight. Both men were suspended for three days and instructed to write letters of apology. Runyon's letter focused more on his desire to remain employed and did not address the fight or issue an apology until its fourth and final paragraph. Corbett's letter, on the other hand, opened with an apology and expressed his sincere regret. Because of the earlier two incidents and the content of the letter, AET fired Runyon. It did not fire Corbett. Runyon brought an action against the company based on the Age Discrimination in Employment Act ("ADEA"). Judge McKinney (S.D. Ind.) granted judgment as a matter of law to AET at the close of Runyon's case-in-chief. Runyon appeals.

In their opinion, Judges Posner, Flaum, and Wood affirmed. The Court stated that Runyon was wrong in approaching the appeal as if it were a McDonnell Douglas indirect proof analysis. That burden-shifting approach is only appropriate at summary judgment, not after a plaintiff has had an opportunity to present his entire case at trial. The question at that time is whether he presented enough evidence to allow a rational factfinder to rule in his favor. On that question, Runyon must fail. He presented insufficient evidence to carry his burden that his age rather than his behavior was the real reason for his discharge.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

LINDSEY v. WALGREEN CO. (August 11, 2010)

Katie Lindsey had worked as a Walgreens pharmacist for only a few years when district supervisor Connie Jenkins promoted her to manager. Her management career did not go well or last long. Lindsey admitted to multiple violations of company policy and was demoted to staff pharmacist and transferred to another store. Jenkins warned her that additional violations could result in her discharge. Lindsey claims that she was the target of age-related disparagement at her new assignment, including from her direct supervisor. Shortly after her transfer, Lindsey filled a prescription although she was aware of a potentially serious interaction the drug could have with another medication that the customer was taking. She had to manually override the pharmacy's warning system in order to dispense the drug. Her supervisor reported the incident to Jenkins, who independently reviewed the prescription history, the customer's medical history, and the threat of interaction. Jenkins concluded that Lindsey violated company policy and terminated her employment. Lindsey brought suit under the Age Discrimination in Employment Act (“ADEA”). Judge Leinenweber (N.D. Ill.) granted summary judgment to Walgreens. Lindsey appeals.

In their opinion, Judges Bauer, Ripple, and Kanne affirmed. Lindsey relies principally on the "cat’s paw" theory of recovery, under which the bias of another employee can be attributed to an unbiased decision maker. The Court noted that the record contained evidence of inappropriate age-related remarks by her supervisor but did not include evidence that Jenkins relied on the supervisor or was presented with false or incomplete information. The undisputed evidence is that Jenkins conducted an independent investigation and did not rely solely on information conveyed by the supervisor. Without such evidence, the Court stated that a cat's paw theory could not survive. The Court added that even with such evidence, Lindsey's claim would fail. ADEA requires evidence that age was a determinative factor, not just a motivating factor. Lindsey cannot meet that threshold, given the undisputed evidence that Jenkins fired Lindsey because of her violation of company policy.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

EVERROAD v. SCOTT TRUCK SYSTEMS (May 10, 2010)

David Scott owned and operated Scott Truck Systems, a commercial trucking company. Sherry Hantzis, his wife, was its general manager. In 2004, on Hantzis’ recommendation, Scott hired 51-year-old Diana Everroad as a dispatcher. Things did not go very well -- her supervisor complained, two large customers complained, and she had several run-ins with her coworkers. On the other hand, she was the target of several gender-based derogatory comments from those coworkers, one of which came during a conversation she secretly recorded. Within months, Scott and Hantzis created a new job for Everroad as a "data administrator." The hours and the pay were identical to her dispatcher job, but she had to share an office. Her officemate had a habit of making lengthy personal phone calls. Everroad’s complaints resulted in a meeting with Scott, Hantzis, and the officemate in an attempt to resolve the conflict. The meeting lasted a long time and became very tense. Everroad again secretly recorded much of the meeting. There was shouting, crying, eye-rolling, and accusations -- but the meeting did end with some constructive proposals. Scott and Hantzis were upset with Everroad's conduct during the meeting and considered it insubordinate. They were still considering their options when, upon arrival at the office the next morning, Everroad ignored Hantzis' greeting and overreacted to Scott's greeting. Scott terminated her employment at the end of that workday. Everroad sued Scott Truck for gender discrimination and retaliation under Title VII and for age discrimination and retaliation under the Age Discrimination in Employment Act (ADEA). The district court granted summary judgment to Scott Truck. Everroad appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Rovner affirmed. The Court first rejected Everroad's complaint that the district court erred in refusing to consider the transcripts of her secretly recorded conversations. First, Everroad never actually submitted the tapes themselves, only the transcripts. Second, the Court found the transcripts demonstrated that the conversations were, in large part, incomprehensible. Addressing the merits, the Court accepted as fact that Everroad could establish that she was a member of a protected class and that she suffered an adverse employment action for both the gender and age discrimination claims. The Court nonetheless rejected her discrimination claims: a) because of her insubordination, she was unable to meet the job performance prong of the test and she was unable to identify a similarly situated employee (i.e., another insubordinate employee), and b) she was unable to present evidence undermining the sincerity of Scott's nondiscriminatory reason for terminating her (her insubordination). The Court also rejected her retaliation claims: a) her claim that she was transferred because of her complaints about some derogatory comments fails because she never raised it in the district court, the transfer was not an adverse employment action, and there was no evidence that she complained to Scott or Hantzis, and b) her claim that she was terminated for complaining about a different derogatory remark fails because the remark was made a year prior to her termination and she presented no evidence establishing a causal connection between the two.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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."

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link