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

SCHANDELMEIER-BARTELS v. CHICAGO PARK DISTRICT (February 8, 2011)

Cathleen Schandelmeier-Bartels, a Caucasian, began working for the Chicago Park District in early 2006. She reported to Andrea Adams (an African-American) who reported to Alonzo Williams (an African-American) who reported to Megan McDonald (a Caucasian). [Taking the facts in a light most favorable to Smith] During the summer of 2006, Schandelmeier-Bartels was supervising summer camp. One day, she heard what she thought was the sound of flesh being struck and a child's screams. Upon investigation, she came upon a young African-American child who had been suspended from summer camp. The child's aunt was kneeling over him with her arm raised and a belt in her hand. The child was crying and had visible welts on his arm. When Schandelmeier-Bartels told the aunt to stop, the aunt and the child left. Schandelmeier-Bartels reported the incident to Adams. Adams stated that what happened was acceptable discipline in their culture. Schandelmeier-Bartels reported the incident to the Illinois Department of Children and Family Services and, on their advice, to the police. The next morning, Adams, in the company of the child's aunt, confronted Schandelmeier-Bartels. Adams screamed at her, criticized her for sending the police to the aunt’s house, repeated her statement about the acceptability of that type of discipline in her culture, and ordered Schandelmeier-Bartels out of her office. Adams immediately sent a memo to McDonald complaining of Schandelmeier-Bartels’ poor performance. She recounted several examples, including failure to supervise, failure to report an emergency, and poorly written incident reports. The last example she gave was the incident with the young child. The Park District fired Schandelmeier-Bartels by the end of the day. Schandelmeier-Bartels filed suit for race discrimination under Title VII. A jury awarded her $200,000 in compensatory damages. Judge Coar (N.D. Ill.) granted the Park District’s motion for judgment as a matter of law. He concluded that Adams' racial animus did not affect the termination decision. Schandelmeier-Bartels appeals. The Park District cross-appealed the court's conditional denial of its motion for a new trial (although the Court pointed out that the cross-appeal was unnecessary).

In their opinion, Judges Manion, Williams, and Hamilton affirmed in part and reversed in part. The Court first addressed Schandelmeier-Bartels’ appeal. It noted that the case was based on a "cat's paw" theory. There was evidence of a racial animus on the part of Schandelmeier-Bartels’ supervisor but not on the part of the decision-maker. The Court noted the lack of consistency in recent cases regarding what is necessary to bridge that causal gap. Is evidence that the biased employee exerted "singular influence" over the decision-maker required or will something less suffice? The Court concluded that it need not resolve that issue since it found that a reasonable jury could have found for Schandelmeier-Bartels even under the more stringent test. Viewing the evidence in a light most favorable to Schandelmeier-Bartels, the jury could have found that Adams' input was decisive and that neither McDonald nor the human resources representative conducted an independent investigation. The Court thus reinstated the jury's verdict on liability. It turned to the Park District’s motion for a new trial. First, it rejected the argument that the district court should have modified a jury instruction in response to a jury question during deliberations. The objection came too late in the proceedings and, given the entirety of the instructions, there was no plain error. Second, the Court addressed the admittedly improper suggestion by plaintiff’s counsel during closing argument that an important e-mail actually had been created after the fact. Although the suggestion was without merit and even baseless, the Court noted that closing argument remarks rarely require a new trial. This remark was no different -- it was not an abuse of discretion for the district court to deny the new trial. Finally, the Court addressed the amount of the compensatory damage award. Although the Court found a rational connection between the evidence and a significant compensatory damage award, it concluded that the evidence did not support the $200,000 award. It relied on similar cases from the circuit to reduce the award to $30,000 (noting that, but for the district court judge’s retirement, it would have remanded the issue to him for redetermination).

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HILL v. POTTER (August 30, 2010)

Carla Hill has been an employee of the United States Postal Service in Hazel Crest, Illinois for several years. In the early 2000s, she filed a number of EEO complaints against her supervisors for discrimination. In late 2002, Hill hurt her back in a work related injury and went on "limited duty" status. Limited duty status employees are paid for a full day's work even if no qualifying work is available. Just as her limited duty status period was about to end, Hill claimed that she reinjured her back and reapplied. Her supervisor, Patrick Kavanaugh, wrote a letter to Dale Schultz of the Office of Workers' Compensation Programs. He communicated his belief that Hill’s injury was not as serious as she claimed. Schultz put Hill on "light duty" status. Light duty status employees are not guaranteed a full day's pay if qualifying work is not available. Hill lost 618 hours of pay while on light duty status -- even while other employees worked in excess of 800 hours of overtime. Hill, who was a letter carrier, also wanted a position as a window clerk. She submitted written applications in 2000 and 2003 and again documented her interest in 2004. Clerk positions became available in 2005, 2006, and 2007. She did not submit written applications at any of those times. On each of those occasions, the Postal Service offered the job to someone who had submitted a written application. Hill brought an action against the Postmaster General, alleging that the lost hours and failure to promote were in retaliation for her protected activities (her EEO complaints). Judge Coar (ND. Ill.) granted summary judgment to the defendant. Hill appeals.

In their opinion, Judges Flaum, Kanne, and Evans affirmed. The Court noted that Hill proceeded under the indirect method of proof -- which requires proof of a statutorily protected activity, a materially adverse job action, satisfactory job performance, and treatment worse than a similarly situated employee. The elements at issue here are whether there was an adverse job action (on the reduction in hours claim) and whether Hill was treated differently from similarly situated employees (on the failure to promote claim). The Court first addressed adverse job action. Although a reduction in hours can be an adverse job action, the reduction here came as a result of her light duty status. It does not amount to an adverse job action without other evidence. The Court rejected Hill's claim that Kavanaugh's letter to Schultz somehow imputed a retaliatory motive to Schultz under a "cat's paw" theory. There was no evidence in the record that the letter had any effect on Schultz -- let alone a dispositive one. Therefore, Hill's light duty assignment itself was not an adverse job action. The Court also concluded that sending her home without pay was also not an adverse job action. Although there was evidence in the record that other employees worked overtime, there was no evidence in the record that that overtime work fell within her work performance limitations. Finally, the Court rejected Hill's failure to promote theory of liability. In order to prevail, she had to establish that she properly applied for the promotion. The Postal Service presented evidence that its unofficial policy required an application in writing -- even though that unofficial policy was inconsistent with the written policy and the Postal Service presented no documentary evidence that supported it. Nevertheless, the Court concluded that Hill had not met her burden of establishing pretext. She failed to come forward with any evidence from which an inference could be drawn that the Postal Service evidence was not credible.

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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.

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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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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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