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Tenured Professors Are Not "Similalry Situated" To Non-Tenured Ones

Posted on January 20, 2012 by Michael Rigney

ABUELYAMAN v. ILLINOIS STATE UNIVERSITY (December 13, 2011)

Illinois State University classifies its professors in two ways. First, a professor is ranked either as an assistant professor, an associate professor, or a full professor. The University's expectations of a professor depend on his or her ranking. Professors are also classified as tenured, probationary tenure-track, or nontenure-track. The University conducts fairly rigorous annual evaluations to assess its faculty members’ performance. The University hired Eltayeb Abuelyaman, an Arab Muslim, as a probationary tenure-track associate professor in 2001. The University's evaluation committee gave Abuelyaman low performance scores for several years and elected not to reappoint him in March 2006. Abuelyaman filed a complaint with the EEOC alleging race, religion, and national origin discrimination. He cited several bases for his allegation. First, he complained several times to Dr. Dennis that Dennis' decision to give greater weight to student evaluations disadvantaged foreign born professors. Second, Abuelyaman supported another professor’s complaint that the professor had been discriminated against with respect to his non-renewal. Third, Abuelyaman was involved in the investigation of another professor’s complaint that Dr. Dennis improperly used his authority on a Search Committee to steer the committee to a candidate that Dennis preferred. Abuelyaman filed suit pursuant to Title VII for 1) discrimination, 2) retaliation for backing his fellow professor’s discrimination claims, and 3) retaliation for participating in the Dr. Dennis complaint. Judge Mihm (C.D. Ill.) granted summary judgment to the University on the discrimination claim and the first retaliation claim. He granted a motion for judgment as a matter of law at the close of plaintiff’s case on the second retaliation claim. Abuelyaman appeals.

In their opinion, Seventh Circuit Judges Ripple, Manion, and Sykes affirmed. The Court first addressed and rejected the University's argument that the district court abused its discretion in granting Abuelyaman an extension of time to file the notice of appeal. Abuelyaman’s attorney attempted to file the notice of appeal electronically before the filing deadline and thought she had done so. When she realized, six days later, that her filing had not been successful, she promptly filed a motion for an extension. The district court did not abuse its discretion in finding excusable neglect under Rule 4(a)(5). On the merits, Abuelyaman proceeded under the direct method of proof. His principle argument was that he was treated differently from other, similarly situated faculty members. The Court agreed with the district court that Abuelyaman fell far short of meeting his burden. First, his comparisons to tenured faculty members did not meet the "similarly situated" test. Second, the Court found that the University’s treatment of underperforming non-tenured faculty members was very similar to their treatment of Abuelyaman. With respect to his retaliation claims, Abuelyaman had to show that he was engaged in protected activity and that there was a causal relationship between the activity and his non-renewal. His first claim, that the University retaliated against him for his complaints about discrimination directed at a fellow faculty member, fails both because he did not raise it in time in the district court and because there is no evidence in the record that the decision-makers knew of his involvement in that matter when they decided not to renew his contract. The second claim, that the University retaliated against him for his involvement in the Dennis investigation, fails because Abuelyaman was not engaged in protected activity. The Dennis investigation did not involve any allegations of discriminatory conduct. Abuelyaman’s involvement was therefore not protected under Title VII.

Tags: Opinion by Manion, Appellate Procedure, Civil Rights Act of 1964, Labor & Employment, National Origin Discrimination, Notice Of Appeal, Race Discrimination, Religion Discrimination, Retaliation, Title VII

Supervisor Can Be A "Similarly Situated Employee"

Posted on October 13, 2011 by Michael Rigney

RODGERS v. WHITE (September 2, 2011)

The Illinois Secretary of State employed Mark Rodgers as a lawn maintenance worker for over 20 years. He was the only black employee on a 27-person crew. He was fired in 2006 by Donna Fitts, the Department director and a white woman, and Stephen Roth, the personnel director and a white man. The termination arose from two or three incidents. First, a late 2005 Inspector General report concluded that Rodgers and his supervisor, Dave Rusciolelli, who is white, allowed their crewmembers to use state-owned equipment on personal time. The department recommended a 3-day suspension for Rusciolelli and an 18-day suspension for Rodgers, although neither suspension was ever implemented. Second, in early 2006, Fitts discovered that Rogers, Rusciolelli, and a third man, a white crew supervisor, were recording overtime off the books. The Department had imposed a moratorium on overtime. This off-the-books system allowed crewmembers to work overtime in return for later, equivalent personal time off. Third, Rodgers skipped a meeting that Fitts called because he was not told it was mandatory and because Fitts had not approved overtime for the meeting. In mid-2006, Fitts recommended Rodgers' termination. Her termination memorandum cited as grounds only the abuse of state equipment and the improper overtime but her letter to Rodgers also included his failure to attend the meeting. Following arbitration, Rodgers was reinstated with back pay. Nevertheless, he brought suit against the Secretary of State under Title VII and against Fitts and Roth under §§ 1981 and 1983. Chief Judge McCuskey (C.D. Ill.) granted summary judgment to the defendants. He concluded that Rodgers had no direct evidence of discrimination and that, under the indirect method, Rodgers failed to identify a similarly situated coworker. Rodgers appeals.

In their opinion, Seventh Circuit Judges Bauer, Cudahy, and Tinder vacated and remanded. The Court agreed with the district court with respect to the direct method. It disagreed, however, with respect to the indirect method. The Court conceded that supervisors generally are not good comparators under the similarly situated analysis. But here, it found Rusciolelli a good comparator. Rodgers and Rusciolelli were accused of the same things, were equally responsible, and were disciplined by the same supervisor. The only substantial difference is the accusation that Rogers failed to attend a meeting but there are at least material fact questions regarding that meeting. Rodgers has therefore identified a similarly situated white individual who was treated more favorably -- summary judgment should not have been granted.

Tags: Opinion by Cudahy, Civil Rights Act of 1964, Direct Method Of Proof, Indirect Method Of Proof, Labor & Employment, Similarly Situated, Title VII

Pregnancy Complication Is Not A Substantial Limitation On A Major Life Activity Under The ADA

Posted on October 3, 2011 by Michael Rigney

SEREDNYJ v. BEVERLY HEALTHCARE (August 26, 2011)

Beverly Healthcare hired Victoria Seredynj as activity director at its Golden Living nursing home in Valparaiso, Indiana in 2006. Included within Seredynj's duties were several that were physically strenuous. Other employees frequently helped Seredynj with those duties. Seredynj learned that she was pregnant in January of 2007. She informed her supervisor and continued with her normal tasks. After a few months, however, she developed complications. Her doctor told her not to engage in strenuous activities. Under Beverly's modified work policy, Seredynj was not entitled to any restricted or limited duty. She was therefore told that she would not be allowed to return to work until she was released to full duty. Beverly terminated Seredynj's employment in March. Her attorney soon thereafter requested an Americans with Disabilities Act or Pregnancy Discrimination Act accommodation. Beverly declined. Seredynj filed suit against Beverly alleging gender discrimination under Title VII, pregnancy discrimination under the PDA, disability discrimination under the ADA, and retaliation. Judge Miller (N.D. Ind.) granted summary judgment to Beverly. Seredynj appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judge Bauer and District Judge Young affirmed. The Court first addressed the PDA and Title VII claims. The legal analysis is the same for both. Seredynj proceeded under both the direct and indirect methods of proof. The Court rejected Seredynj's argument that Beverly's modified work policy, which only accommodates ADA-disabled employees, was evidence of discrimination. The PDA only requires that employers treat pregnant employees the same as non-pregnant employees. Beverly’s work policy does just that and is not direct evidence of discrimination. The Court also rejected her argument that Beverly's refusal to accommodate her, given that other employees frequently assisted her with strenuous tasks before her pregnancy, was direct evidence of discrimination,. The Court pointed out that voluntary assistance is materially different than a formal accommodation. The Court concluded that she failed under the direct method. Under the indirect method, Seredynj had the burden to show that a similarly situated non-pregnant employee was treated more favorably. None of the individuals suggested by Seredynj, however, were similarly situated. Her indirect claim must fail. Summary judgment was properly granted on the gender and pregnancy discrimination claims. The court turned to the ADA. It's first inquiry was whether she was disabled under the Act, an issue of first impression in federal appellate courts. Under the Act, a disability is either: a) a physical or mental impairment that substantially limits one or more major life activity, b) a record of such an impairment, or c) being regarded as having such an impairment. The Court addressed each possibility. First, although pregnancy is not an impairment, the Court concluded that a pregnancy with the complications experienced by Seredynj may be an impairment. The Court did not definitively resolve that issue, given its further treatment of the claim. The impairment at issue must substantially limit a major life activity. Generally short-term, temporary conditions do not meet the definition. Here, Seredynj’s condition did not even last as long as her pregnancy and did not affect her ability to conceive again. The Court therefore concluded that Seredynj was not disabled under the first possibility. For the same reasons, Seredynj was not disabled under the record of disability possibility. Finally, the Court stated that the record did not support any belief on Beverly’s part that Seredynj had such an impairment. Summary judgment in Beverly's favor on the ADA claim was therefore appropriate. The Court turned to the retaliation claim, which consisted of Seredynj's claim that Beverly looked for an opportunity to fire her after receiving her attorney’s letter seeking an accommodation. To prevail, Seredynj must prove that she suffered an adverse employment action. Since Beverly terminated her employment before it even received the attorneys letter, she cannot possibly do that -- summary judgment was proper.

Tags: Opinion By Young, ADA, Americans With Disabilities Act, Civil Rights Act of 1964, Disability Discrimination, Disabled, Gender Discrimination, Labor & Employment, PDA, Pregnancy Discrimination, Retaliation, Summary Judgment, Title VII

County Employee's Causation Evidence Falls Short

Posted on September 16, 2011 by Michael Rigney

EVERETT v. COOK COUNTY (August 24, 2011)

Cook County, Illinois faced a severe budget crisis in 2006. The County President instructed the Chief of the Bureau of Health to submit budget cut recommendations. One of the Bureau of Health functions was the Cermak Health Services, which provided medical and dental services to Cook County Jail inmates. The budget team identified Cermak’s dental program as a good source of some budget cuts. The Bureau Chief agreed to a recommendation that reduced the number of dentists from five to one. In deciding whom to keep among the five, the County looked for management experience, flexibility, productivity, and skills. The County ultimately chose Dr. Ronald Townsend as the dentist who best met those criteria. One of the five dentists who was not chosen was Dr. Carol Everett, a Caucasian woman who had been with Cermak for almost 25 years. Dr. Everett filed an appeal, which was denied. Everett filed suit under Title VII, alleging ethnicity discrimination, and under § 1983 and the Shakman decree, alleging political discrimination. Judge Kendall (N.D. Ill.) granted summary judgment to the County. Everett appeals.

In their opinion, Seventh Circuit Judges Kanne, Evans (who, due to his death, did not participate in the decision), and Sykes affirmed. The Court first addressed and rejected Everett's spoliation argument that the County destroyed certain documents containing notes concerning the layoffs. First, she did not identify any evidence of bad faith, a requirement before a negative inference is imposed. Second, the record does not support a conclusion that the documents were destroyed to eliminate adverse evidence. On the merits, the Court first addressed her political activity discrimination claim, in which she alleges that the decision to retain Everett was due to his political donations. The Shakman decree and the First Amendment prohibit firing an employee for political reasons. Under both theories, however, the plaintiff must show a causal relationship between the employment decision and the political considerations. Everett relied on procedural irregularities in the process to establish that causal relationship. The Court concluded, however, that her evidence was insufficient to establish such a relationship. Even if such a relationship had been established, however, Everett would still fall short because there is no evidence in the record that the decision-makers were aware of the political activity -- or lack thereof -- of either Everett or Townsend. The Court turned to the ethnicity discrimination claim. It concluded that Everett failed to show pretext. Although she provided some evidence of her possible superiority to Townsend in some areas, it was insufficient to show that the reasons the County gave for selecting Townsend were suspect. At most, they could show that the County made a hurried, poorly researched, and possibly poor decision. That is not enough to show pretext.

Tags: Opinion by Kanne, Shakman Decree, Causation, Civil Rights Act of 1964, Constitutional Law, Ethnicity Discrimination, First Amendment, Labor & Employment, Pretext, Section 1983, Spoliation, Title VII

Seventh Circuit Rejects Inverse Similarly Situated Employee Approach

Posted on September 1, 2011 by Michael Rigney

DIAZ v. KRAFT FOODS GLOBAL (August 8, 2011)

Jose Diaz, Ramon Peña, and Alberto Robles were all Kraft Foods employees in 2008. Diaz and Peña were hourly employees in the shipping department. Robles was a salaried senior technician in the support services department. They all reported to the same supervisor -- Peter Michalec. Diaz and Peña complained that Michalec discriminated against Hispanics. He assigned them the hardest tasks under the most difficult conditions and scrutinized their work much more closely than non-Hispanics. They also identified a number of discriminatory remarks he allegedly made. In late 2008, Kraft announced plans to outsource its shipping department. Diaz and Peña would lose their jobs. At about the same time, Kraft posted openings for two technician and five sanitation positions. Plaintiffs never made it on the list of interested candidates for the technician position. They claim they were not allowed to apply -- Michalec asserts they the simply failed to apply. Kraft hired two non-Hispanics for those positions. Diaz and Peña were on the list for the sanitation positions. Kraft decided to fill those positions based on seniority and neither Diaz nor Peña were selected. Robles has a different complaint. He received the salary of grade 2 employee but asserts that his position is a grade 3 position. Kraft responds that his position is a grade 2 position. Kraft concedes that two other employees in the same position are paid at a higher rate but only because they were transferred from a higher paying position and the company's policy is to allow them to retain their salaries for two years. Plaintiffs brought suit against Kraft under Title VII of the Civil Rights Act of 1964. Judge Guzman (N.D. Ill.) granted summary judgment to the defendants. Plaintiffs appeal.

In their opinion, Seventh Circuit Judges Kanne, Wood, and Sykes affirmed with respect to Robles but reversed and remanded with respect to Diaz and Peña. The Court first addressed the Diaz and Peña claims. Those plaintiffs presented their case under the direct method of proof. The Court disagreed with the district court's application of an inverted “similarly situated employee" approach. The district court had allowed the employer to satisfy its burden by identifying a person within the protected class who was not discriminated against. The fact that Michalec treated another Hispanic well might tend to negate discrimination, but is not enough to meet the employer's burden. The Court noted Michalec's treatment of Diaz and Peña by assigning disfavored tasks, Michalec's role in the hiring processes, and evidence that Michalec told another employee that he chose one candidate because he was white. The Court concluded that there was enough evidence to submit the question of ethnic bias to a jury. The Court turned to the Robles claim. It first noted that the evidence relied on by Diaz and Peña had no bearing on the claim since Robles’ claim arose months earlier. Although the record contained evidence of some insensitive remarks made by Michalec, the Court concluded that there was insufficient evidence to create a triable issue of ethnic bias under the direct method. Under the indirect method, the Court concluded that the higher paid colleagues were not similarly situated because of the company's policy to allow employees to retain a higher salary after a transfer to a lower-paying job.

Tags: Opinion by Wood, Civil Rights Act of 1964, Direct Method Of Proof, Indirect Method Of Proof, Labor & Employment, Similarly Situated, Title VII

History Of Complaints Coupled With Supervisor's "Race Card" Comment Enough To Survive Summary Judgment On Retaliatory Discharge Claim

Posted on August 15, 2011 by Michael Rigney

BURNELL v. GATES RUBBER CO. (July 27, 2011)

Eddie Burnell, an African-American male, worked in Gates Rubber Co.'s tool room from 1993 to 1996. He claims that he was subjected to racial discrimination during this time. After several years elsewhere, he returned to the tool room in 2003. In December of 2006, his supervisor instructed him to perform a task. When he did not do so, the supervisor issued a written warning. Burnell refused to accept the warning, claiming that he did not have time to perform the task. Burnell complained to the plant manager that the warning was inappropriate. His principal excuse was that he did not have time to complete the task. He later added that he had safety concerns. At a later meeting, the plant manager accused Burnell of "playing the race card." The employee relations manager convinced the plant manager not to fire Burnell if he signed a commitment letter. They presented Burnell with a commitment letter that implied that he was guilty of insubordination and dishonesty. He refused to sign the letter. He was fired. Burnell brought suit, alleging Title VII discriminatory discharge and retaliatory discharge claims and a § 1981 discrimination claim. Judge Kapala (N.D. Ill.) granted summary judgment to Gates. Burnell appeals.

In their opinion, Seventh Circuit Judges Kanne, Rovner, and Sykes affirmed in part and reversed and remanded in part. The Court first addressed his Title VII discriminatory discharge claim along with his § 1981 claim, which the Court noted are nearly identical. The Court rejected Burnell's claim under the direct method. Most of Burnell's circumstantial evidence related to the 1993-1996 period. The sum of his circumstantial evidence would not permit a rational jury to make a causal connection between Burnell’s termination and race discrimination. The Court also rejected the claim under the indirect method since he could satisfy neither the “met expectations” nor the "similarly situated" prongs of the test. The Court turned to his Title VII retaliatory discharge claim. Burnell clearly suffered a materially adverse employment action and engaged in statutorily protected activity. In fact, he complained quite regularly about what he felt were discriminatory practices in the workplace. To succeed on his retaliation claim, therefore, he needed only to connect his termination with his complaints. The Court relied almost exclusively on the plant manager's "playing the race card" comment, along with the history of discrimination complaints, to conclude that his claim should have survived summary judgment.

Tags: Opinion by Kanne, Causal Connection, Civil Rights Act of 1964, Direct Method Of Proof, Indirect Method Of Proof, Labor & Employment, Race Discrimination, Section 1981, Title VII

Adverse Employment Action Based On Hostility Generally Does Not Amount To Gender Discrimination

Posted on August 2, 2011 by Michael Rigney

BENUZZI v. BOARD OF EDUCATION (July 21, 2011)

Thirty years ago, the Chicago Public School System hired Jessica Benuzzi, a white woman now in her fifties, as one of its first female custodial assistants. A promotion in 2004 qualified her to be the senior custodian at a large school. She was granted a transfer to a school that was closed and undergoing major renovation -- and was scheduled to be opened as the John J. Pershing West Magnet School in the fall 2005. In March of 2005, however, the Board of Education named Cheryl Watkins as the new Pershing principal. Watkins is an African-American woman in her forties. From their first encounter, the two women did not get along. Over the next several school years, Benuzzi complains that Watkins refused to accommodate her request for a shift change, unfairly reprimanded her on numerous occasions, treated her very roughly, demanded a fitness for duty examination, and suspended her without pay on more than one occasion. Benuzzi filed a gender discrimination charge with the EEOC in October 2006. She updated the charges several times thereafter. She filed suit against Watkins and the Board in June 2009 alleging, among the things, gender discrimination and retaliation under Title VII. A few days after Watkins waived service, she reprimanded Benuzzi again. When Benuzzi wouldn't sign the reprimand, she asked the Board to remove her from the school. The Board refused. Watkins was present at Benuzzi's deposition on February 25, 2010. The very next day, Watkins restricted Benuzzi's presence at Pershing and also issued a Notice of Disciplinary action that referred to nine different instances going back several months. Judge Conlon (N.D. Ill.) granted summary judgment to the defendants. In doing so, she did not consider most of Benuzzi's factual submissions because their length violated a local rule. Benuzzi appeals.

In their opinion, Seventh Circuit Judges Flaum, Wood, and Tinder affirmed in part and vacated and remanded in part. The Court first addressed the district court's ruling on the factual submissions. It emphasized its support for local rules and a district court’s policy to insist upon strict compliance. The rule at issue here is 56.1, which requires that a party opposing summary judgment respond to the movant’s statement of facts in no more than forty "short numbered paragraphs." Benuzzi's filed forty paragraphs but her paragraphs sometimes ran as long as 18 lines. Apparently, the district court considered only four of Benuzzi's paragraphs. The Court expressed some concern about such a strict interpretation of the standard that uses the word "short." Since both sides acquiesced at oral argument to the Court's consideration of the entire record, the court did not need to decide if the 56.1 ruling was an abuse of discretion. On the merits, the Court first addressed her gender discrimination claim. One of the requirements for her to succeed on the claim is to show not only that the reasons for her suspensions were dishonest but that they were, in fact, based on discrimination. Benuzzi presented no evidence that gender bias had any impact on Watkins's decisions. Her gender discrimination claim must fail without that link. The Court turned to her retaliation claim. It quickly concluded that she satisfied the statutorily protected activity element and that her suspension without pay was a materially adverse action. The Court also concluded that the Notice of Disciplinary Action and memorandum restricting her hours could constitute a materially adverse action and left that question for a jury. The Court acknowledged that written warnings are generally not enough to constitute a materially adverse action but noted that the context here (numerous charges, for minor transgressions, going back several months, delivered the day after she was deposed) could lead a jury to conclude otherwise. Finally, the Court considered causation. Again, the Court thought that a jury should decide causation with respect to the Notice of Disciplinary Action. Suspicious timing is frequently not enough to establish causation. But here, where the gap was so short and there were no intervening events, a jury should decide. The Court decided that there was not enough causation evidence to send the retaliation claim to the jury.

Tags: Opinion by Tinder, Adverse Employment Action, Causation, Civil Rights Act of 1964, Gender Discrimination, Labor & Employment, Retaliation, Title VII

Similarly Situated Employee Was Not Treated More Favorably When He Took Advantage Of Available Grievance Procedure

Posted on July 28, 2011 by Michael Rigney

LUSTER v. ILLINOIS DEPARTMENT OF CORRECTIONS (July 19, 2011)

Milton Luster is an African American male. In June of 2006, he was a lieutenant with the Illinois Department of Corrections assigned to the Dwight Correctional Center in Dwight, Illinois. On June 6, he and Christine Cole, a white female guard, got into a heated conversation during which Cole called Luster a "bitch." Luster filed an incident report accusing Cole of insubordination. Two days later, Cole filed her own report. In her report, she acknowledged a consensual affair with Luster years earlier and reported that Luster on two occasions had pinned her against the wall and put his mouth on her neck, that he had touched her buttocks, that he made suggestive remarks to her, and that he made unsolicited and uninvited phone calls and visits to her home. The Department began an investigation and put Luster on paid leave. Luster denied all the allegations but two other guards told investigators that they witnessed at least one of the incidents. In his final report, the investigator criticized Cole for the "bitch" remark and for her delay in reporting the harassment but credited her report of the events. The resulting disciplinary proceedings ended with a recommendation that Luster be fired. The warden agreed and suspended Luster without pay. As she was required to do under regulations, she requested the approval of the Illinois Department of Central Management Services for Luster's firing. Lester could have, but did not, file a grievance or administrative appeal. Instead, he resigned. He brought suit against the Department, alleging that he was fired because of his race in violation of Title VII. Judge Mihm (C.D. Ill.) granted summary judgment to the Department. Luster appeals.

In their opinion, Judges Posner, Tinder, and Hamilton affirmed. The Court stated the familiar elements under the indirect method of proof: member of a protected class, meeting the Department's performance expectations, an adverse employment action, and a similarly situated coworker treated more favorably. The first and third elements were not at issue and, here, the second and fourth elements merged. Luster put forward two "similarly situated" employees who he claims were treated more favorably. The Court rejected one of them as a comparator because the admissible evidence established that the accusations against that employee were found to be unsubstantiated. The other employee was an apt comparator. Accusations of physical harassment of a female coworker were found substantiated. That employee was also suspended without pay pending his discharge. Up until that point, the Court noted, he and Luster were treated identically. But the comparator employee, unlike Luster, successfully grieved his termination. The same opportunity was available to Luster. Therefore, he was not treated more favorably than Luster. The Court added that even if it had found a prima facie case, the Department would still prevail because it came forward with a legitimate, nondiscriminatory reason for their treatment of Luster. Luster did not provide sufficient evidence to allow a reasonable jury to conclude that the Department's reason was pretextual.

Tags: Opinion By Hamilton, Civil Rights Act of 1964, Indirect Method Of Proof, Labor & Employment, Race Discrimination, Similarly Situated, Title VII

Monkey Metaphors Did Not Create Hostile Work Environment

Posted on June 22, 2011 by Michael Rigney

ELLIS v. CCA OF TENNESSEE (June 9, 2011)

Harriett Ellis, Patricia Forrest, Shavon Jones, and Delores McNeil were all employed as nurses at the Marion County Jail II. They are all also African-American. CCA of Tennessee operates the jail pursuant to a contract with the Marion County Sheriff and employs its entire medical staff. Plaintiffs allege several instances of racial discrimination at the jail: a) a shift change directive that required nurses to rotate among shifts rather than work the same shift, as the plaintiff nurses had been doing, b) the health services administrator's possession of a management book excerpt that compared workplace problems to monkeys, c) a reference to monkeys over the intercom system, d) a coworker who wore clothing with a picture of the Confederate flag, and e) a doctor stating to one of the nurses that the first name of an inmate named Cole must be "black as." The plaintiffs all resigned in late 2006 or early 2007. They all claim they were constructively discharged because they complained about improper or unsafe work practices. They filed suit under Title VII and § 1981, alleging race discrimination and hostile work environment. They also alleged state law retaliatory discharge. Judge Barker (S.D. Ind.) granted summary judgment to the defendants. She also concluded that plaintiff Forrest's claims were precluded by res judicata. Plaintiffs appeal.

In their opinion, Circuit Judges Flaum and Williams and District Judge Herndon affirmed. The Court first addressed the hostile work environment claim. Such a claim must show that the environment was both objectively and subjectively offensive. Here, although the Court assumed that the plaintiffs found the management book offensive, they concluded that no reasonable person would find it so. The monkey in the book is clearly a metaphor for management problems, not people. There is also not enough in the record regarding the monkey comments on the intercom to establish a hostile work environment. Although the court found the Confederate flag and the doctor’s statement offensive, the limited number of incidents does not support a hostile work environment claim. The Court turned to the race discrimination claim. A race discrimination claim requires a material, adverse employment action. The Court rejected each of plaintiffs' three suggestions: a) the shift-change policy does not qualify because it did not include any particular hardship, b) plaintiff Ellis' three-day suspension does not qualify because she was unable to show that CCA's explanation was pretext, and c) they cannot show a constructive discharge since it requires more than hostile work environment. The Court then addressed the Indiana statutory whistleblower claim. In order for an employee to get the protection of the statute, she must report a violation of federal or state law, an ordinance violation, or the misuse of public resources. The reports at issue primarily addressed CCA safety practices. Since the plaintiffs have not identified any violation or misuse, they cannot prevail under the statute. The Court did find the district court's ruling on res judicata erroneous. One of the plaintiffs made similar allegations in an earlier lawsuit. The district court concluded that she should have amended her complaint in that suit to include incidents between its filing and the summary judgment motion. The court was wrong. Res judicata does not bar a second lawsuit based on facts that arose after the first complaint was filed.

Tags: Opinion by Flaum, Adverse Employment Action, Civil Rights Act of 1964, Constructive Discharge, Labor & Employment, Race Discrimination, Res Judicata, Title VII, hostile work environment

Flawed Jury Instruction Does Not Result In Abandoned Claim

Posted on June 8, 2011 by Michael Rigney

MENDEZ v. PERLA DENTAL (May 24, 2011)

Nereida Mendez was a Perla Dental employee. She alleges that she was subjected to severe verbal and physical sexual harassment and even physical abuse. She complained at several levels -- but it only made it worse. She eventually filed a police report concerning the physical abuse. Perla terminated her employment. Mendez brought suit, alleging Title VII claims for gender discrimination, hostile work environment, and retaliation. She also brought state law claims for assault and battery, intentional infliction of emotional distress, and retaliatory discharge. A jury found for Mendez and awarded compensatory and punitive damages. Perla appeals.

In their opinion, Judges Manion, Rovner, and Sykes affirmed. The only issue on appeal is whether the district court had subject matter jurisdiction. Perla argues that the Illinois Human Rights Commission had exclusive jurisdiction of the claim. The Court agreed that the Commission has exclusive jurisdiction of retaliation claims that are based on complaints of sexual harassment. The question is whether Mendez' retaliatory discharge claim was intertwined with her sexual harassment complaints. The answer to that question is found by examining whether the legal duty Perla allegedly violated arises from the Illinois Human Rights Act. Here, Mendez' claim is that she was fired for filing a police report. Defendants agree that such a claim is recognized by Illinois common law, without reference to the Act, but claim that Mendez abandoned that claim during the litigation. The Court rejected Perla’s argument. First of all, there is no factual basis for it. The evidence at trial included reference to the police report. The fact that a jury instruction might not have been complete does not support abandonment. Second, even if Mendez did abandon the claim, subject matter jurisdiction exists because it is decided at the time of the filing of the complaint.

Tags: Opinion by Rovner, Civil Rights Act of 1964, Illinois Human Rights Act, Illinois Human Rights Commission, Jurisdiction, Retaliatory Discharge, Title VII, hostile work environment

Class Action Requiring Individual Hearings Is Inappropriate Under Rule 23(b)(2)

Posted on April 28, 2011 by Michael Rigney

RANDALL v. ROLLS-ROYCE CORP. (March 30, 2011)

Rolls-Royce Corporation sets its employee compensation in three stages. First, it sets up compensation categories with broad pay ranges into which it assigns classes of employees it thinks are of equal value to the company. Second, within each compensation category, it creates narrower pay ranges for each job based on market conditions. Third, the company authorizes supervisors to adjust compensation individually. Female employees of one of the Rolls-Royce's Indiana facilities brought a class action pursuant to the Equal Pay Act and Title VII, alleging that Rolls-Royce engaged in sex discrimination by paying male employees more than female employees and by denying female employees promotions. Judge Barker (S.D. Ind.) denied class certification and granted summary judgment to Rolls-Royce. Plaintiffs appeal.

In their opinion, Judges Posner, Flaum, and Sykes affirmed. The Court noted that the average male employee compensation was approximately 5% higher than female employee compensation in the same compensation categories throughout the complaint period. But is that differential the result of sex discrimination, which would violate Title VII? The company's expert testified that the differential disappeared when adjustments were made for differences in the jobs performed. The plaintiff's expert failed to rebut this testimony. Plaintiffs’ Title VII base pay claim must therefore fail. Their Equal Pay Act claim also fails. Although that claim does not require proof of discrimination, the Court concluded that the district court was correct in finding that the plaintiffs failed to meet the statutory comparator requirement. The named plaintiffs' promotion claims also fail. Again, the company's expert corrected the data to account for male employees with the same title but substantially different responsibilities and found that females are, in fact, much more likely to be promoted that males. Again, plaintiffs failed to rebut the testimony. The Court also affirmed the district court's denial of class certification. It concluded that the named plaintiffs were not adequate class representatives because their promotion claims were weaker than many other class members and because they had a conflict of interest. They are supervisors and have some control over the compensation of both male and female employees. In reaching its conclusion, the Court rejected plaintiffs' attempt to style its action as a Rule 23(b)(2) claim (under which they might avoid the adequacy issues). The request for monetary relief and the need for individual calculations and hearings make the case inappropriate for Rule 23(b)(2) treatment.

Tags: Opinion by Posner, Adequacy, CRA, Civil Rights Act of 1964, Class Actions, Class Certification, Equal Pay Act, Expert Testimony, Labor & Employment, Rule 23(b)(2), Title VII

Paycheck Accrual Rule Applies To Section 1983 Pay Discrimination Claims

Posted on April 21, 2011 by Michael Rigney

GROESCH v. CITY OF SPRINGFIELD (March 28, 2011)

Kevin Groesch, Greg Shaffer, and Scott Allin are all white males, were all police officers in the Springfield, Illinois Police Department, all voluntarily resigned from the department, all sought reemployment with the department, and all were ultimately rehired between 1989 and 1996 as entry-level officers pursuant to City policy. Donald Schluter, on the other hand, is African-American. He also was a Springfield police officer who sought reinstatement after a voluntary resignation. He was rehired in 2000 -- but he was given a retroactive leave of absence and he returned to the force with full credit for his prior years of service. The City policy had not changed but the City Council enacted a special ordinance allowing the exception. The police union challenged the ordinance in state court but it was upheld. The City ignored the white officers' request to be credited with their prior years of service. A state court dismissed, on statute of limitations grounds, the officers’ lawsuit alleging disparate treatment under the Illinois Constitution. The officers then filed race discrimination claims under Title VII in federal court in 2004. Judge Scott (C.D. Ill.) denied the City's motions for summary judgment in late 2006, relying on the "paycheck accrual" rule, under which each department paycheck amounted to a separate discriminatory act. Five months later, however, the Supreme Court decided Ledbetter and rejected the paycheck accrual rule. The district court reversed course and granted the City's motion. The court also ruled that the officers' § 1983 claims were barred by res judicata because they could have been brought in the state court action. The officers appeal.

In their opinion, Judges Bauer, Wood, and Hamilton affirmed in part, reversed in part, and remanded. The Court first noted that Congress enacted the Lilly Ledbetter Fair Pay Act of 2009 during the pendency of the appeal. In effect, the Act reinstated the paycheck accrual rule and also made the reinstatement retroactive to any claim pending on the day of the Supreme Court's decision or later. The City attempted to avoid application of the Act or distinguish the case -- but to no avail. The Court reversed the district court with respect to the Title VII claims relating to the time period after the state court dismissal. Next, although the Act only directly applies to Title VII actions, the Court concluded that the paycheck accrual rule applied to pay discrimination claims under § 1983, as well. Finally, the Court considered the impact of the earlier state court decision. Under Illinois law, res judicata requires a final judgment, an identity of causes of action, and an identity of parties. The district court correctly concluded that res judicata bars recovery for claims that arose before the date of the final judgment. But each individual paycheck after that final judgment supports a separate cause of action and triggers a new statute of limitations. They therefore do not share an identity of causes of action and are not barred by res judicata. The Court emphasized that the state court had never ruled on the merits, therefore not implicating collateral estoppel or issue preclusion.

Tags: Opinion By Hamilton, Civil Rights, Civil Rights Act of 1964, Labor & Employment, Paycheck Accrual Rule, Race Discrimination, Res Judicata, Section 1983, Seventh Circuit Court Of Appeals, Title VII

Teacher Unable To Show Causal Relationship Between Pregnancy And Adverse Employment Actions

Posted on April 14, 2011 by Michael Rigney

SILVERMAN v. BOARD OF EDUCATION (March 21, 2011)

Amy Silverman taught special education at a Chicago public high school during the 2004-2005 school year. Because she was a probationary teacher, her contract was subject to annual renewal. In early 2005, the Board of Education decided to eliminate a special education teacher slot at her school. The principal decided not to renew Silverman's contract. Silverman was pregnant at the time. She complained to the EEOC. A few months later, the Board offered her a position at the same school for the 2005-2006 school year. Silverman accepted the position, although she thought it was a more difficult assignment. The Board did not renew her contract for the 2006-2007 school year. Silverman brought suit under Title VII, alleging that the Board discriminated against her as a result of her gender by not renewing her contract when she was pregnant and also retaliated against her, after she filed an EEOC charge, by offering her a more difficult assignment and, again, not renewing her contract. Judge Manning (N.D. Ill.) granted summary judgment to the Board. Silverman appeals.

In their opinion, Circuit Judges Tinder and Hamilton and District Judge Murphy affirmed. Before addressing the merits, the Court rejected Silverman’s argument that the district court erred by not considering the EEOC's reasonable cause finding. A district court has much discretion in how it treats a reasonable cause determination. On the merits, the Court noted that Silverman chose to proceed under both the direct and indirect methods of proof. Silverman had no direct evidence of discriminatory intent so she attempted to create a "convincing mosaic" of circumstantial evidence under direct method. She attempted to do so almost exclusively with what these she thought was evidence of suspicious timing and her principal’s ambiguous comment regarding her maternity leave. The Court was not convinced. First, suspicious timing is rarely enough by itself. Second, although the principal decided not to renew Silverman's contract shortly after learning of her pregnancy, the Board’s records actually show that the principal decided to renew her contract on two separate occasions after learning of her pregnancy. The decision not to renew only came after the Board decided to eliminate a position. With respect to the indirect method, the Board stipulated to a prima facie case for summary judgment purposes. The only issue on appeal, therefore, was whether the Board articulated a nondiscriminatory reason for its actions and whether that reason was a pretext. The Board did offer such a reason. It argued that Silverman was the weakest of the probationary teachers, based on performance evaluations. Although Silverman disagreed with the evaluations, that is not enough to make the reason a pretext. Silverman raised no issue regarding the honesty of the evaluations, only their accuracy. The Court also rejected Silverman's speculation arising out of the fact that the principal interviewed other candidates for the position that she offered Silverman in 2005. The Court also rejected Silverman's retaliation claim. Under the direct method: a) the offering of a "more difficult" position is not an adverse employment action since the Board was not obligated to offer her any position, b) the negative performance evaluations could amount to an adverse employment action but there is no evidence that they were causally related to the EEOC charge, and c) the Board's 2006 decision not to renew was an adverse employment action but, again, is not causally connected to the charge. Under the indirect method, the Court concluded both that Silverman failed to identify a similarly situated individual and failed to offer sufficient evidence of pretext.

Tags: Opinion By Hamilton, Civil Rights Act of 1964, Direct Method Of Proof, Indirect Method Of Proof, Labor & Employment, Retaliation, Title VII

Suspicious Timing, In The Proper Context, Can Support An Inference Of Causation

Posted on March 18, 2011 by Michael Rigney

LOUDERMILK v. BEST PALLET CO. (February 18, 2011)

Kevin Loudermilk, an African-American male, worked as a laborer at the Best Pallet Co. He came to believe that the company treated its Hispanic employees more favorably. He claims that he complained without success. He even talked about filing an EEOC charge. One day, he took some pictures of his work area. A supervisor, Dan Lyons, directed him to stop. Loudermilk again voiced his concerns about the discriminatory work environment. Lyons told him to put it in writing. When Loudermilk handed Lyons his written complaint the next day, Lyons immediately fired him. Loudermilk brought suit under Title VII, alleging that Best Pallet fired him for opposing its discriminatory practices. Judge Reinhard (N.D. Ill.) granted summary judgment to Best Pallet. He concluded that Loudermilk's only evidence, the timing of his discharge vis-à-vis the written complaint, was insufficient to establish causation. Loudermilk appeals.

In their opinion, Chief Judge Easterbrook and Judges Wood and Evans reversed and remanded. The Court rejected the district court's conclusion for several reasons. First, the court did not look at the evidence in the light most favorable to Loudermilk. Second, the several different reasons the company put forth for its actions (it told the EEOC that Loudermilk was let go as part of a reduction in force, it first told the court that Loudermilk resigned, and it later told the court that he was fired for taking pictures) could support an inference of pretext. Third, the Court rejected the notion that timing, by itself, can never support an inference of causation. It depends on the context. Here, the termination came immediately after a protected act. The Court concluded that the context could support a causation inference.

Tags: Opinion by Easterbrook, Causation, Civil Rights Act of 1964, Discrimination, Inference, Labor & Employment, Title VII

Court Reinstates "Cat's Paw" Jury Verdict

Posted on March 4, 2011 by Michael Rigney

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).

Tags: Opinion By Hamilton, Cat's Paw, Civil Rights Act of 1964, Closing Argument, Jury Instruction, Labor & Employment, Motion For Judgment As A Matter Of Law, Race Discrimination, Title VII

Res Judicata Bars Suit Under Different Legal Theory

Posted on February 17, 2011 by Michael Rigney

CZARNIECKI v. CITY OF CHICAGO (January 21, 2011)

For a few months in late 2006 in early 2007, Wojciech Czarniecki was a probationary police officer with the Chicago Police Department. He alleges that Assistant Deputy Superintendent Tobias made several negative references to his Polish ancestry in a discussion about Czarniecki's use of exam study guides. He alleges that his dismissal followed shortly thereafter and that another Polish probationary officer was dismissed at about the same time. He brought suit under § 1983 against the City and Tobias, alleging national origin discrimination in violation of the 14th Amendment. The district court granted summary judgment to the City. Shortly before trial, the court granted Czarniecki's motion to dismiss his claim against Tobias without prejudice - but conditioned the dismissal on a requirement that he seek her permission if he ever wanted to refile it. Czarniecki appealed that order because of its refiling condition, then sought permission to refile and appealed that order when the court denied permission on the grounds that his first appeal deprived her of jurisdiction. A few months later, Czarniecki filed a new complaint alleging national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, naming only the City. Judge St. Eve (N.D. Ill.) dismissed the complaint on res judicata grounds. Czarniecki appeals.

In their opinion, Seventh Circuit Judges Bauer, Flaum, and Hamilton consolidated the three appeals, affirmed the res judicata dismissal, and dismissed the other appeals as moot. The Court noted the three familiar ingredients of federal res judicata (federal res judicata applies when the earlier judgment was in federal court): a final decision, a dispute arising out of the same operative facts, and the same parties. The Court found that the three requirements were met here. There is no dispute that the earlier decision against the City was final, the parties are the same (the fact that Tobias is not a defendant in the second suit is of no consequence), and the claim arises from the same operative facts. The fact that he sets forth a new theory of liability, even with different proof requirements, does not change the res judicata result. The Court also rejected Czarniecki's argument that res judicata should not apply because he lacked a "right to sue” letter at the time of his first complaint and could not have brought a Title VII claim. The Court concluded that Czarniecki had several ways in which he could have dealt with that situation -- splitting his claims was not one of them. Finally, the Court dismissed as moot Czarniecki's two other appeals since both only dealt with his ability to refile.

Tags: Opinion By Hamilton, Civil Procedure, Civil Rights Act of 1964, Constitutional Law, Labor & Employment, Mootness, National Origin Discrimination, Res Judicata, Section 1983, Title VII

Plaintiff Does Not Overcome General Rule That Suspicious Timing Is Not Enough To Establish Causal Connection

Posted on February 3, 2011 by Michael Rigney

LEITGEN v. FRANCISCAN SKEMP HEALTHCARE (January 13, 2011)

From 1993 to 2006, Dr. Christine Leitgen was a physician in the Department of Obstetrics and Gynecology at a hospital owned by Franciscan Skemp Healthcare. She was one of the busiest and highest paid doctors in the department. She also served as chair of the Department from 1999 to 2004. The Hospital distributed the revenue it received for deliveries equally among the physicians in the department, regardless of the number of deliveries each performed. Since the female physicians usually performed more deliveries, they were generally unhappy about the Hospital's compensation scheme. Leitgen herself complained to the Department chair several times. The issue came up while Leitgen herself was the Department chair, as well. She chose not to address the issue for fear that it would affect morale. Leitgen and another female physician complained to Dr. Sandy, Leitgen's successor as chair. She claims that she identified the flaws in the compensation system as gender discrimination. The issue was discussed several times at department meetings but never voted on -- and never changed. Leitgen complained to the Hospital's CFO in August and September of 2006. Again, she alleges that she framed the issue as one of gender discrimination. Throughout her employment, Leitgen's was the subject of numerous complaints from both staff and patients. In fact, as early as 2003, one of the Hospital's managers recommended that she be fired. In her March 2006 performance review, Leitgen was told that she had shown "some improvement" in the area. In July of 2006, a nurse complained that Leitgen humiliated her in front of the patient. The complaint prompted Sandy to consider discipline. The complaints continued through September. In early September, Sandy and Leitgen's supervisor began to prepare a termination recommendation. The collected information about all the complaints. Sandy made a recommendation to the executive committee that Leitgen be terminated on October 31, 2006. On November 14, Leitgen was told to resign or be fired. She resigned the following day. She brought suit under Title VII of the Civil Rights Act, claiming that her termination was in retaliation for her complaints about gender discrimination. Judge Crabb (W.D. Wis.) granted summary judgment to the defendants. Leitgen appeals.

In their opinion, Judges Rovner, Sykes, and Tinder affirmed. As Leitgen proceeded under the direct method of proof, she was required to establish that she engaged in protected conduct, that she suffered an adverse employment action, and that there was a causal connection. In order to establish protected conduct, she need not prove that the Hospital’s compensation system was discriminatory, but she must prove that she had a reasonable and good faith belief that it was. At this summary judgment stage, the Court concluded that there was sufficient evidence that she had such a belief and that her conversation with the CFO was therefore protected conduct. With respect to the causal connection, however, the Court concluded otherwise. In order for her to meet that requirement, she must show that her complaints were a "substantial or motivating factor" in the Hospital's decision. Her reliance on the temporal proximity between the communication with the CFO and her termination did not persuade the Court. First, suspicious timing is almost never enough. Second, her conversation with the CFO was not the first time she raised the complaint. Third, the conversation was not even the first time she raised the complaint outside her department. Fourth, Sandy and Leitgen's supervisor began their discipline discussions before Leitgen's meeting with the CFO. Leitgen failed to establish the required causal connection and summary judgment was appropriate.

Tags: Opinion by Rovner, Causal Connection, Civil Rights Act of 1964, Direct Method Of Proof, Gender Discrimination, Labor & Employment, Temporal Proximity, Title VII

Promotion Candidate Was Similarly Situated To Higher Ranked Candidates

Posted on January 21, 2011 by Michael Rigney

STINNETT v. CITY OF CHICAGO (JANUARY 4, 2011)

Gregory Stinnett was a black male Ambulance Commander in Chicago's Fire Department. He took the promotional exam for Field Officer in 2000. Based on his score and seniority, he ranked 32nd. Over the next several years, the Department promoted from the list on eight different occasions. By February of 2007, after the Department promoted two white officers, Stinnett's name was next in line and there were vacancies. Unfortunately, promotions for the additional vacancies were not budgeted. By the time of the next promotions in March 2008, the Department had retired the 2000 list and had administered a new exam -- and Stinnett went from 1st to 48th. He brought suit against the City, alleging that its failure to promote him violated Title VII. Judge St. Eve (N.D. Ill.) granted summary judgment to the City. Stinnett appeals.

In their opinion, Seventh Circuit Judges Posner, Tinder, and Hamilton affirmed. Under McDonnell Douglas, the Court noted that Stinnett can survive summary judgment if he shows that he was qualified for a promotion, was denied the promotion, a similarly situated member of another race got the promotion, and the City was unable to articulate a nondiscriminatory reason for its conduct. The district court concluded that Stinnett was not similarly situated to either a) the two white officers who were just ahead of Stinnett on the 2000 list and promoted in February 2007 or b) to all of the officers (some of whom were white) who had been promoted ahead of Stinnett from the 2007 list. The Court disagreed with the former. Stinnett was not claiming that he should have been promoted ahead of the two officers who ranked higher in 2007 -- he was claiming that the City should not have stopped filling vacancies when it got to him on the list. Thus, the Court concluded he was similarly situated to the last two promotions from the 2000 list because they were all eligible for the 2007 promotions. Getting past the similarly situated hurdle was not enough for Stinnett, however. The City's reasons for its behavior -- that it filled the only two budgeted promotions in 2007 and that it needed to update its promotion list from time to time to allow newer employees a chance for a promotion -- was reasonable. The fact that the last two promotions were white males and the next name on the list was that of a black male does not make its behavior suspicious. Also, the record clearly establishes that the Department official who closed down the 2000 list did not know whose name was next.

Tags: Opinion by Posner, McDonnell Douglas, Civil Rights Act of 1964, Labor & Employment, Nondiscriminatory Reason, Seventh Circuit Court Of Appeals, Similarly Situated, Title VII

"Subtle Indicia Of Distaste" Does Not Satisfy Direct Case Proof Requirement

Posted on December 15, 2010 by Michael Rigney

GRIGSBY v. LAHOOD (December 6, 2010)

Brian Grigsby worked with for the FAA at the Indianapolis Center from 1991 until 1997. He entered as part of a learning program while he finished his degree and continued as a developmental Air Traffic Controller. In that role, he was trained and certified as a radar associate and was in the middle of his radar controller training when he asked for a transfer. Although he never made a formal complaint, it appears that Grigsby requested a transfer to escape hostile comments from his coworkers directed at his then-recent discovery of and pride in his Native American heritage. The FAA granted his transfer request. From 1997 until 2005, Grigsby worked at and became fully certified at the Terre Haute, Indiana automated center. Unfortunately, the FAA privatized the Terre Haute Center in 2005 and eliminated Grigsby's job. Grigsby applied for each of several different vacancies at the Indianapolis Center. On several occasions, he met with the Assistant Air Traffic Manager at the center. He alleges that, at their last meeting, she "bristled" and abruptly ended their meeting when he mentioned that he was Native American. The FAA did not offer Grigsby any of the positions. Each of the successful candidates was a Certified Professional Controller and was familiar with the technology at the Indianapolis Center, which had changed drastically since Grigsby's transfer. Grigsby brought a claim against the FAA pursuant to Title VII of the Civil Rights Act, alleging Native American origin discrimination. Judge Young (S.D. Ind.) granted summary judgment to the FAA. Grigsby appeals.

In their opinion, Seventh Circuit Judges Posner, Kanne, and Wood affirmed. The Court addressed the claim under both the direct and indirect methods. It first rejected the claim under the indirect method because Grigsby's only evidence, direct or circumstantial, of discriminatory animus is the alleged reaction of the assistant manager to his statement regarding his heritage. Such "subtle indicia of distaste" falls short of establishing a case under the direct method of proof. With respect to his indirect proof case, the Court concluded that he could not prevail for several reasons. First, he was not qualified for the positions. Each position required a certified controller familiar with the Indianapolis Center operations -- Grigsby was neither. Next, even if he was qualified, he failed to show that the positions were filled by candidates with similar or less qualification.Each of the successful candidates was a Certified Professional Controller. Even if his qualifications were similar, which he alleges, each of the successful candidates was also operationally current at the Indianapolis Center. Again, Grigsby was neither. Finally, even if he met his prima facie case, he failed to show that the FAA's reason was pretext. The FAA has shown a legitimate reason for its decisions. Grigsby's allegations of pretext are not supported by the record. Grigsby also sought to proceed under a mixed-motive theory, as well. That theory of liability also requires proof of discrimination, direct or circumstantial. He has none and his mixed-motive theory fails as well.

Tags: Opinion by Kanne, Civil Rights Act of 1964, Direct Method Of Proof, Indirect Method Of Proof, Labor & Employment, National Origin Discrimination, Prima Facie Case, Seventh Circuit Court Of Appeals, Title VII

Employer Not Liable For Hostile Work Environment Claim Where Employee Never Brought Complaints To Supervisor's Attention

Posted on November 23, 2010 by Michael Rigney

MONTGOMERY v. AMERICAN AIRLINES (November 19, 2010)

Anthony Montgomery has been an American Airlines employee for over 20 years, all but five months of it as a Fleet Service Clerk. It is the events of those five months, however, that matter in this case. Late in 2006, Montgomery asked for and was granted a transfer to a mechanic's position. The collective bargaining agreement required and defined a six-month probationary period, toward the end of which Montgomery would have to pass a tool inspection and qualification test. Montgomery took his test in April of 2007. Two company supervisors and a union representative were present. Montgomery failed the test and was returned to his prior position. Nearly 3 months later, Montgomery complained to American that he was subjected to racial harassment and discrimination during his probationary period. In the initial meeting with a company representative, he never stated that he had complained to his supervisors at the time. The company conducted an investigation and concluded that it could not substantiate the allegations. The results of the investigation were that the test was administered fairly, that the few employees who became mechanics without passing the test fell into different categories, and that any tension in the workplace was not based on race. Montgomery filed suit. He alleged a hostile work environment in violation of § 1981 and Title VII and racial discrimination, also in violation of § 1981 and Title VII, for his return to the clerk position. Judge Der-Yeghiayan (N.D. Ill.) granted summary judgment to American. Montgomery appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Bauer and Kanne affirmed. The Court first addressed the hostile work environment claim, noting that the analysis under the two statutes is the same. The Court found triable issues of fact with respect to three of the four elements of the claim. In order to recover against an employer, however, Montgomery had to establish that American either participated in the harassment or was negligent in finding and correcting it. His only allegation of participation referred to a coworker and thus does not satisfy the participation prong. In order to satisfy the second prong, Montgomery had to establish either that he informed his supervisors of the harassment or that it was so obvious that it amounted to constructive notice. The record does not support either conclusion. The only person he reported his concerns to was his crew chief, a non-management coworker. America cannot be liable for the harassment without clear and direct reporting from the employee. Even if the harassment had been reported, the Court stated that American would have avoided liability because of its prompt and appropriate investigation. The Court turned to the discrimination claim, which Montgomery pursued under both the direct and indirect method of proof. Again, the analysis is the same under both statutes. Under the direct method, Montgomery asserted that non-African-Americans were not required to take the test. The Court rejected this as proof. Even if true, it did not allow the inference of discriminatory motive. Under the indirect method, Montgomery had to establish that similarly situated employees were treated more favorably. He alleged that three individuals became mechanics without passing the test. But the Court concluded that none of the three was similarly situated to Montgomery -- one became a mechanic before the test rule was enforced, one became a mechanic when a recalculation of his probationary time put him past the time limit for taking the test, and Montgomery presented no admissible evidence with respect to the third individual. The Court concluded that Montgomery cannot prevail on his claim that the test requirement was discriminatory. Montgomery also claimed that the test itself was discriminatory. On that claim, the Court concluded that Montgomery simply presented no evidence. Finally, although Montgomery failed to make out a prima facie case, the Court also addressed pretext. It found that American had a legitimate reason for its actions and that Montgomery provided no evidence otherwise.

Tags: Opinion by Kanne, Civil Rights Act of 1964, Direct Method Of Proof, Employer Liability, Harassment, Indirect Method Of Proof, Labor & Employment, Pretext, Race Discrimination, Section 1981, Similarly Situated, Title VII, hostile work environment

Lost Documents Do Not Support A Spoliation Inference Without Bad Faith Evidence

Posted on November 10, 2010 by Michael Rigney

NORMAN-NUNNERY v. MADISON AREA TECHNICAL COLLEGE (November 8, 2010)

Elvira Jimenez brought a race discrimination lawsuit in 2000 against Madison Area Technical College and three of its employees (Carol Bassett, Jackie Thomas, and William Stryker). Her lawyer was Willie Nunnery. The suit was dismissed as frivolous -- Nunnery was sanctioned and lost his law license for a period of time because of his involvement in the case. On two separate occasions in the following few years, Judy Norman-Nunnery applied for positions at the College. Norman-Nunnery is an African-American woman and is married to Willie Nunnery. In 2002, she made it through an initial screening but was not interviewed. In 2005, she was encouraged to apply for a different position by the College's minority recruiter and Eugene Fujimoto, its Diversity Coordinator. Carol Bassett screened the 77 applicants for minimum qualifications. Norman-Nunnery and 45 others advanced. At that point, a five-person selection committee chaired by Jackie Thomas developed a weighted scoring system with five criteria. Each committee member separately scored the remaining 46 candidates. The College selected the top 10 to interview. Norman-Nunnery was not in the top 10. In fact, only one minority candidate made the list. Under the College’s diversity policy, it added the next two highest-scoring minority candidates to the interview list. Norman-Nunnery was not one of those two, either. Fujimoto met with Basset, Thomas, and William Stryker to discuss why Norman-Nunnery did not make the cut. They told him that she did not score well on two of the five criteria. Although he advised Bassett, Thomas, and Stryker that her resume may not have accurately reflected her experience, they chose not to add her to the interview list. A white woman was hired for the job. Norman-Nunnery filed suit against the College as well as Bassett, Stryker, and Thomas. She alleged violations of Title VII, the 1st and 14th amendment, and § 1981 for discriminating against her on account of her race and her association with her husband. Judge Crabb (W.D. Wis.) granted summary judgment to the defendants on the ground that no rational jury could conclude that race or marital status was the motivation for the defendants' actions. Norman-Nunnery appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Rovner affirmed. The Court first addressed Norman-Nunnery's argument that she was entitled to a spoliation inference due to the unexplained loss of a number of documents relevant to her claim. It concluded that she was not. To be entitled to an inference that the missing documents would support her claim, she must show that the documents were intentionally destroyed in bad faith in order to hide adverse information. Here, the files were lost before any claim was made and there is no evidence that they were intentionally destroyed in order to cover up harmful evidence. The Court cited the fact that the office in which they were located had moved twice, that the filing system was haphazard, and that in fact most of the documents relevant to the claim were not lost. Without evidence of a bad-faith motive, Norman-Nunnery is not entitled to a favorable inference. On the merits, Norman-Nunnery proceeded under both the direct and indirect approaches. Her only claimed direct evidence, however, once the inference was rejected, is an unscientific study that concluded that the College's selection process favored internal candidates. Since most internal candidates were not minorities, the process therefore favored non-minorities. The Court stated that such a study cannot, by itself, meet the standard for a discrimination claim and rejected the claim under the direct method. In reviewing a case like this under the indirect method, the analysis of the prima facie case and the defendants' non-discriminatory reason response frequently overlap. Norman-Nunnery must show that she was qualified and that defendants rejected her in favor of someone of like qualifications. The defendants, on the other hand, assert as their non-discriminatory reason that Norman-Nunnery was not as qualified as those interviewed and as the individual who was hired. The undisputed facts in this case established that the defendants applied the same criteria to all applicants and made their decision based on the applicants' qualifications. Summary judgment on her race discrimination claim was appropriate. For much the same reason, the Court rejected her claim that she was discriminated against because of her husband. There was some evidence that at least some of the defendants knew who her husband was and continued to have negative feelings about him. There was no evidence, however, that the defendants made their hiring decisions because of him.

Tags: Opinion by Rovner, McDonnell Douglas, Civil Rights Act of 1964, Direct Method Of Proof, First Amendment, Fourteenth Amendment, Indirect Method Of Proof, Labor & Employment, Pretext, Spoliation, Title VII

Consent Order's Goal Of Increasing African-American Promotions Did Not Require Race-Based Decisions

Posted on September 28, 2010 by Michael Rigney

FINCH v. PETERSON (September 10, 2010)

In 1978, the Indianapolis Police Department and the United States Department of Justice entered into a consent decree designed to correct racial discrimination in the Department. The long-range goal of the decree was to increase the number of African-Americans to the point where it reflected the racial composition of the workforce in the city. In part, it provided that assignments, transfers, and promotions were to be based on appropriate criteria without regard to race. Now fast forward almost 30 years to 2006. That year, the Department promoted 11 lieutenants to captain. To prepare for the promotions, the Department screened, tested, and ranked each applicant. Instead of promoting the highest-ranked applicants, however, the Department promoted three African-Americans who ranked as low as 26th. Three white applicants, all of whom ranked in the top 10, brought suit pursuant to Title VII, § 1981, and § 1983. Magistrate Judge Lynch (S.D. Ind.) rejected the individual defendants' argument that they were entitled to qualified immunity because their actions were required by the consent decree and denied their motion for judgment on the pleadings. The defendants appeal.

In their opinion, Judges Flaum, Williams, and Sykes affirmed. The Court first confirmed its jurisdiction under the collateral-order doctrine. Even in the absence of a final judgment, a decision denying qualified immunity on an issue of law is immediately appealable. On the merits, the Court recited the familiar two questions raised by a qualified immunity analysis -- was a constitutional right violated and was the right sufficiently well-established to put the defendants on notice. The Court rejected the defendants' only argument that their race-based promotion decisions did not violate the Constitution -- that is, that the consent decree required them. Although it conceded that the consent order had general goals of increasing the number of African-American captains, the Court pointed to the several, very specific provisions of the order requiring race-neutral decisions. Other provisions of the consent decree (e.g., requiring sufficient African-American representation in an applicant pool) were designed to allow the department to reach its general goal without engaging in race-based promotions. The Court also rejected the defendants' only argument with respect to the "sufficiently well-established" prong because it also relied on the premise that the consent order required them to promote the African-Americans.

Tags: Opinion by Sykes, Civil Rights Act of 1964, Consent Decree, Constitutional Law, Labor & Employment, Qualified Immunity, Race Discrimination, Section 1981, Section 1983, Title VII

Plaintiff's Evidence Fails To Establish Essential Elements Of Her Claim

Posted on September 24, 2010 by Michael Rigney

GOODMAN v. NATIONAL SECURITY AGENCY (September 3, 2010)

Claudette Goodman was hired in August 2004 as a private security guard by the National Security Agency (National). Her initial pay was $8.25 an hour. National assigned her to an overnight shift at a housing complex. For family reasons, Goodman desired a daytime shift. She soon transferred to a different location on the more desirable dayshift. Although she was promoted to supervisor with a raise to $8.75, her employment was not without problems. National had difficulty with its payroll -- paying late, paying less than owed, bouncing checks, etc. In mid-2005, she began suspecting that National paid its male employees more than she. The owner denied it. In any event, in October 2005, she found another job at $10.00 an hour and quit her job at National. She brought suit against National under the Equal Pay Act and Title VII of the Civil Rights Act. Judge Norgle (N.D. Ill.) granted summary judgment to the defendants. Goodman appeals.

In their opinion, Judges Rovner, Sykes, and Tinder affirmed. The Court first addressed her retaliation claims under both statutes. Goodman relied on three acts in support of her claims -- that her hours were reduced, that she was demoted, and that she was reassigned. Unfortunately, the evidence did not fully support the accuracy of her claims. For example, her own testimony was that her hours did not change and that she was never actually reassigned (only threatened). To the extent it did, she failed to establish any harm. Her testimony suffered from inconsistencies and a lack of clarity and was insufficient to support a retaliation claim. Goodman's equal pay claims suffered from the same lack of clarity in the record. She offered the testimony of Michael Moore, a male supervisor, in support of the claim. Upon close examination, and adjusting for confusion about certain dates, the Court concluded that the evidence established that Goodman was in fact paid more than Moore. Obviously, that was fatal to her Equal Pay Act claim.

Tags: Opinion by Tinder, Civil Rights Act of 1964, Equal Pay Act, Gender Discrimination, Labor & Employment, Retaliation, Sufficiency of the Evidence, Summary Judgment, Title VII

Nursing Home's Accession To Residents' Racial Preferences Created Hostile Environment

Posted on July 23, 2010 by Michael Rigney

CHANEY v. PLAINFIELD HEALTHCARE CENTER (July 20, 2010)

Brenda Chaney, an African-American female, worked at the Plainfield Healthcare Center as a nursing assistant for three months in the summer of 2006. Plainfield's policy (possibly undertaken in a good faith belief that it was required by law to do so) was to acquiesce in its residents' racial preferences. Accordingly, every daily assignment sheet noted that particular residents preferred no African-American nursing assistants. Chaney also was the target of a number of derogatory racial comments during her employment. Plainfield did take corrective action when instances of racial remarks were reported. In September of 2006, Chaney and a coworker both refused to come to the aid of a resident. A nurse reported the incident and also reported that Chaney used profanity when she ultimately did respond. Although the unit supervisor's investigation and knowledge of Chaney led her to be skeptical of that charge, the director of nursing decided to fire Chaney. She was informed that the reason for her termination of employment was her use of profanity. Chaney brought an action under Title VII alleging a hostile work environment and an unlawful termination. Judge Barker (S.D. Ind.) granted summary judgment to Plainfield. Chaney appeals.

In their opinion, Judges Rovner, Williams, and Sykes reversed and remanded. The Court had "no trouble" concluding that Chaney's work environment was objectively offensive. It relied not only on the overt derogatory comments and the more subtle remarks supported by the record, but also the fact that the daily assignment sheet contained the racial restrictions. The Court rejected Plainfield's argument that its policy was reasonable and necessary to comply with law. Although recognizing that gender discrimination may sometimes be allowed to accommodate privacy interests, the Court stated that the same is not true for racial discrimination. The Court also concluded that Indiana law did not require the policy and, even if it did, federal law would trump the requirement. On a practical level, the Court recited a number of options an employer has when faced with racial hostilities. With respect to the discharge claim, the Court concluded that a reasonable jury could find that Plainfield's decision to fire Chaney was motivated by race. It relied on Plainfield's shifting justification for its action, the unusual way in which the incident investigation was conducted and concluded, and the absence of any disciplinary action with respect to the other nursing assistant involved in the incident.

Tags: Opinion by Williams, Civil Rights Act of 1964, Discriminatory Discharge, Employer Liability, Hostile Environment, Labor & Employment, Race Discrimination, Title VII

Discrimination Claims Are Barred When They Were Either Untimely Or Not Raised In The EEOC Charge

Posted on July 21, 2010 by Michael Rigney

JONES v. RES-CARE, INC. (July 16, 2010)

Tamika Jones, an African-American female, has several complaints about the way she was treated during her employment at Res-Care. She claims she was promoted in both 2003 and 2004 and acquired increased job responsibilities without an increase in compensation -- unlike several non-African-American employees. She claims she had to specially request time off and that she was denied tuition reimbursement -- unlike several non-African-American employees. She claims she was passed over for promotions in April and November of 2005 and June of 2006 – in favor of non-African-American employees. She filed an EEOC charge in August of 2006, referring to the November 2005 failure to promote and the tuition reimbursement treatment. In 2007, while under specific orders not to vary her work schedule without permission, she returned from her honeymoon three days early. She was given corrective action for the incident. She brought suit under Title VII in June of 2007. She filed a second EEOC charge in November of that year, claiming that the corrective action from the honeymoon incident was in retaliation for the first EEOC charge. She also amended her complaint accordingly. Testimony was elicited during discovery that the Executive Director, after an internal investigation established that Jones improperly charged her employer for some lunches, called her either a "rat" or a "fink" and referred to her as "untrustworthy" to another employee. Jones added a state law slander claim. Judge Lawrence (S.D. Ind.) granted summary judgment to Res-Care on all claims. Jones appeals.

In their opinion, Circuit Judges Manion and Williams and District Judge Darrah affirmed. One of the principal issues on appeal was the timing of the acts of discrimination and the content and timing of the EEOC charge. The Court concluded that the retaliation claim was the only claim that was both mentioned in an EEOC charge and occurred within the 180 days prior to the date of the charge. Jones struck out on each of her three attempts around the ruling: Strike 1) the Court rejected Jones' arguments of continuing violation (they were all discrete acts), Strike 2) the Court rejected her equitable tolling argument (she failed to meet the "aware of the possibility" standard), and Strike 3) the Court rejected her “closely related” argument ("part of a pattern" is not enough). On the merits of the honeymoon incident retaliation claim, the Court concluded both that the corrective action imposed did not amount to an adverse employment action and that Jones failed to establish a causal link between the corrective action and the EEOC charge. The Court also agreed with the district court on the defamation count. Indiana law grants a qualified privilege to alleged defamatory statements if they relate to the fitness of employee and are contained in intra-company communications. The privilege can be lost in certain circumstances, including if it was motivated primarily by ill will. The record established that the statements at issue met the definition of qualified privilege and Jones offered no evidence of ill will other than the offensiveness of the terms themselves -- which is not enough.

Tags: Opinion By Darrah, Civil Rights Act of 1964, Continuing Violation, EEOC Charge, Equitable Tolling, Labor & Employment, Retaliation, Title VII, Untimely

Court Finds Sufficient Evidence of Retaliation to Uphold Jury Verdict

Posted on July 1, 2010 by Michael Rigney

PICKETT v. SHERIDAN HEALTH CARE CENTER (June 25, 2010)

Danielle Pickett was employed as a housekeeper at the Sheridan Health Care Center in Zion, Illinois. In 2005 and 2006, she was the victim of several incidences of inappropriate remarks and touching by nursing home residents. Although the Center responded to her complaints, the promised response never quite succeeded. In a June 2006 meeting with several Center staff members, the Center agreed to reassign Pickett from cleaning residents' rooms, although, according to Pickett, the Center's VP of Operations suggested that Pickett invited the inappropriate conduct. The next morning, Pickett had a very emotional conversation with the Center's Administrator. According to Pickett, the Administrator said some things that indicated that her job may be in jeopardy. The meeting ended with Pickett still upset and in tears. Instead of resuming her assigned tasks, she left the Center. She called the Administrator the next day to ask if she still was employed. He consulted with the VP of Operations and advised Pickett that she no longer had a job. Beginning about a month later, after Picket filed an EEOC claim, the Center offered on several occasions to reinstate Pickett. She refused several such offers but eventually returned to the Center in January of 2007. She brought suit against the Center for sexual harassment and for retaliatory firing under Title VII. Judge Pallmeyer (N.D. Ill) granted summary judgment to the Center on the harassment claim. The retaliation claim went to trial. The jury found for Pickett and awarded $15,000 in compensatory and $50,000 in punitive damages. The court awarded back pay and injunctive relief. The Center appeals.

In their opinion, Judges Flaum, Kanne, and Evans affirmed. The Court first rejected the Center's argument that Pickett could not prevail on the retaliation claim because she could not prevail on the harassment claim. In order to prevail on retaliation, a plaintiff need only show statutorily protected conduct, adverse action, and a causal link. The Court found that there was sufficient evidence of each of those elements in the record -- the jury was entitled to find in Pickett's favor. Each of the Center's other arguments was also rejected: a) counsel’s "send some message" language in closing argument was not improper, b) the compensatory damage award was not excessive and did not require corroborating evidence from a third party, and c) the court did not abuse its discretion in allowing the punitive award to stand in light of the evidence that supported a conclusion that the Center knew it might be retaliating when it terminated Pickett's employment.

Tags: Opinion by Flaum, Civil Rights Act of 1964, Compensatory Damages, Damages, Labor & Employment, Punitive Damages, Retaliation, Sexual Harassment, Title VII

Court Does Not Impute Subordinate's Alleged Retaliatory Motive To Decision-Maker

Posted on June 10, 2010 by Michael Rigney

POER v. ASTRUE (May 27, 2010)

Darrell Poer has been an attorney in the Social Security Administration's (SSA) Office in Indianapolis for years. In 2003, he testified on behalf of two female African-American employees in a suit against Allen Kearns, the Hearing Office Director. In 2005, a more senior attorney position opened in the Indianapolis office. Poer applied for the position. Under the applicable procedures used by the office, a) the HR Department processed applications and made a list of the best qualified candidates, b) they forwarded the list of candidates to Administrative Law Judge (ALJ) de la Torre for his recommendation, and c) ALJ de la Torre forwarded her recommendation to ALJ Lillios, who is the decision-maker. In addition, the practice of the office was to cancel a vacancy if fewer than three qualified candidates existed. At the time of the 2005 vacancy, severe budget cuts prohibited moving employees from one region to another and severely limited relocation expenses. The list of candidates for the 2005 promotion included Poer and two other candidates, one from inside the region and one from outside the region. ALJ de la Torre received the candidate list from Kearns and understood from Kearns that Poer was the only candidate from within the region – and therefore the only viable candidate. The vacancy expired without a selection. Kearns advised the region office: "no FTEs available." Kearns represented himself to Poer as the selecting official and told Poer that he was not selected because he was the only candidate on the list. Poer filed suit, alleging that the SSA failed to promote him in retaliation for his testimony against Kearns. Judge Barker (S.D. Ind.) granted summary judgment to the SSA, concluding that no decision-maker was even aware of Poer's testimony and that there was no evidence of Kearns significantly influencing the promotion decision. Poer appeals.

In their opinion, Judges Ripple, Manion, and Williams affirmed. At least for purposes of the summary judgment motion, the SSA conceded that Poer engaged in protected activity and suffered an adverse job action -- two of the three requirements under the direct method of proof in a Title VII claim of retaliation. The third requirement, a causal connection between the two, was the only issue for the court. Since it was undisputed that the decision-makers were unaware of Poer's protected activity, Poer had to succeed in imputing the alleged retaliatory motive of Kearns to the decision-makers to establish a causal connection. The Court noted that it has imputed such motives when the non-decision-maker has concealed information or fed false information to the decision-maker. Here, the evidence supports an inference that Kearns provided false information to ALJ de la Torre. However, the evidence also establishes that the false information had no impact on ALJ de la Torre's decision not to fill the vacancy. Whether the other two candidates came from outside the region, as mistakenly believed by de la Torre, or came from outside Indianapolis, as is the truth, ALJ de la Torre's decision would have been the same. Because of the relocation expense restrictions, Poer was the only viable candidate and could not have been promoted under agency policy. His retaliation claim fails.

Tags: Opinion by Ripple, Causation, Civil Rights Act of 1964, Direct Method Of Proof, Failure to Promote, Labor & Employment, Retaliation, Title VII

Causal Connection Is Not Established In A Title VII Retaliation Claim

Posted on June 9, 2010 by Michael Rigney

LEONARD v. EASTERN ILLINOIS UNIVERSITY (May 26, 2010)

For almost 20 years, Robert Leonard worked in a janitorial position at Eastern Illinois University. Leonard was of Native American descent and was very outspoken and active on those issues. In particular, Leonard was very critical of the use by the University of Illinois (since discontinued) of a Native American mascot called “Chief Illiniwek.” In March 2005, Leonard applied for a promotion. He interviewed before a panel of six supervisors, two of whom wore shirts picturing Chief Illiniwek. Although the University of Illinois basketball team was scheduled to play a collegiate championship game that very night, Leonard was offended by the shirts and believed them to be a statement regarding Leonard's criticism of the mascot. Neither Leonard nor any other applicant was promoted as a result of the March 2005 interviews. In April, Leonard complained to the school's Office of Civil Rights. As a result of his complaint, the supervisors were requested not to wear clothing depicting the Chief Illiniwek when dealing with Leonard. In October of 2005, Leonard and seven others applied for another promotion. They all interviewed before the same six supervisors without incident. The University promoted the three applicants who scored the highest -- Leonard was seventh of the eight. Leonard brought suit against the University under Title VII. He alleged that the University failed to promote him in retaliation for his earlier complaint. Judge McCuskey (C.D. Ill.) granted summary judgment to the University. Leonard appeals.

In their opinion, Judges Bauer, Evans, and Tinder affirmed. Leonard had proceeded in the trial court under the direct method of proof, which requires him to prove, among other things, a causal connection between a protected activity and an adverse job action. The Court found no such evidence. There was no evidence that the supervisors reacted negatively to his complaint or that the results of the scoring showed any bias. All six supervisors scored Leonard in the bottom half of the candidates. A causal link cannot be inferred from "suspicious timing" because of the six-month gap between the complaint and the interviews. The Court also rejected Leonard's attempt to use 10-year-old statements of allegedly anti-Native American bias to support an inference of retaliation.

Tags: Opinion by Tinder, Causation, Civil Rights Act of 1964, Evidence, Labor & Employment, Retaliation, Title VII

Insubordinate Employee Fails To Satisfy The "Meets Legitimate Job Expectations" Prong

Posted on May 24, 2010 by Michael Rigney

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.

Tags: Opinion by Rovner, ADEA, Age Discrimination in Employment Act, Civil Rights Act of 1964, Gender Discrimination, Labor & Employment, Race Discrimination, Retaliation, Title VII

De-deputization And Transfer Do Not Amount To Constructive Discharge

Posted on May 6, 2010 by Michael Rigney

SWEARNIGEN-EL v. COOK COUNTY SHERIFF'S DEPARTMENT (April 22, 2010)

Swearnigen-El was a black male guard in the women's division at the Cook County Jail. He had a run-in with the head of the division, who wanted the correctional staff in the women's division to be comprised totally of women. Swearnigen-El thought that belief was discriminatory and he reported his concerns to other supervisors. Shortly thereafter, Swearnigen-El found himself in trouble when a female prisoner's allegations that male guards were engaged in sexual activity with female prisoners launched an investigation. The Sheriff's Police conducted the initial investigation, followed by an investigation by the State's Attorney’s office. Several prisoners reported that Swearnigen-El was having sex with a female prisoner. The prisoner herself admitted the activity. Swearnigen-El was de-deputized and transferred for violating a General Order that forbids "activities unbecoming" an employee. He was later charged with sexual misconduct and suspended with pay. Before he had a termination hearing with the merit board, Swearnigen-El resigned. After he was acquitted of the criminal charges, he filed a complaint alleging gender discrimination, race discrimination, Title VII retaliation, First Amendment retaliation, malicious prosecution, and intentional infliction of emotional distress. The district court dismissed the Title VII retaliation claim and granted summary judgment to the defendants on all other claims. Swearnigen-El appeals.

In their opinion, Judges Wood, Evans, and Sykes affirmed. The Court first upheld summary judgment on all gender and race discrimination claims because there was no adverse employment action. Swearnigen-El was de-deputized and transferred after a internal investigation demonstrated evidence of misconduct. His pay was not affected and there was no evidence that the conditions were intolerable. The Court concluded that no reasonable jury could find a constructive discharge under those circumstances. Alternatively, the Court found that Swearnigen-El a) failed to establish sufficient evidence of race or gender discrimination to create a triable issue, and b) was not meeting his legitimate job expectations. Next, the Court considered the First Amendment retaliation claim. The principal speech at issue was Swearnigen-El's disagreement with his superior regarding the staffing of the women's division and his subsequent complaints to other officials that her actions constituted discrimination. The Court concluded that the speech was not protected -- Swearnigen-El was speaking not "as a citizen" but as a public employee under Garcetti. Again, the Court came to the alternative conclusion that no reasonable juror could find the defendants' actions pretextual. On the claim of malicious prosecution, the Court found sufficient evidence of misconduct after the investigation to establish probable cause. Since the absence of probable cause is an element of a malicious prosecution claim, Swearnigen-El's claim must fail. Finally, the Court agreed that there was no "outrageous" conduct that would amount to an intentional infliction of emotional distress claim and upheld the district court's dismissal of the Title VII retaliation claim on the ground that Swearnigen-El failed to include it in his EEOC charge.

Tags: Opinion by Evans, Garcetti, Civil Rights Act of 1964, Constructive Discharge, EEOC, First Amendment, Gender Discrimination, Intentional Infliction Of Emotional Distress, Labor & Employment, Malicious Prosecution, Probable Cause, Protected Speech, Race Discrimination, Retaliation, Section 1981, Section 1983, Title VII

Title VII Reverse Race Discrimination Claim Fails In Face Of Fire Chief's Honest Belief That Plaintiffs Were Ill-Suited For Promotion

Posted on March 19, 2010 by Michael Rigney

STOCKWELL v. CITY OF HARVEY (March 12, 2010)

Jason Bell, Harvey's fire chief, decided to hire a Deputy Chief and three Assistant Chiefs. Chief Bell wrote down traits that he considered desirable (competence, loyalty, dedication, and confidence) and unacceptable (selfishness, complaining, dishonesty, and undermining authority). Anyone with ten years of service on the Fire Department could apply and a sign-up sheet was posted. Nine members of the department indicated an interest in the Assistant Chief position -- eight of the nine also indicated an interest in the Deputy Chief position. Three of the nine were African-American (Buie, Tyler, and Patterson). Before any interviews, Chief Bell offered the Deputy Chief position to a white fireman who had not applied - he declined. Each of the nine candidates was then interviewed and evaluated in several categories. Chief Bell ranked the candidates based on several factors, including the interview evaluation scores. The three African-Americans all scored in the top four. The fourth candidate withdrew his name from consideration. The African-Americans all received promotions. The next highest scorer was Rich Stockwell. Chief Bell did not offer Stockwell a promotion, based on his belief that Stockwell was nearing retirement. The fourth promotion was given to a white candidate who had not applied for the position. Rich Stockwell and three other white firemen brought an action under Title VII against the City of Harvey for race discrimination. The district court granted summary judgment to the City. The firemen appeal.

In their opinion, Judges Ripple, Williams, and Tinder affirmed. The Court described the prima facie case and burden shifting analyses under the McDonnell Douglas indirect method of proof. It then proceeded to decide the case under the pretext requirement, assuming a prima facie case. In order to prevail, the Court stated, a plaintiff must establish that the non-discriminatory reason given by an employer was dishonest and that the real reason reflected a discriminatory intent. Even an unreasonable decision is not actionable if the decision-maker believed it. The Court reviewed the record with respect to each plaintiff and found legitimate and non-discriminatory reasons not to promote each: a) Bell testified that DeYoung had a reputation for being negative and Chief Bell had a belief that he might undermine management, b) Bell testified that he thought Ciecierski was dishonest and not trustworthy, c) Bell testified that Gary Stockwell did a lot of complaining and would not support the department, and d) Bell testified that he believed that Rich Stockwell was nearing retirement and not committed to the department for a long term. In light of Chief Bell's testimony, the Court concluded that none of the plaintiffs could establish a genuine issue of fact with respect to pretext.

Tags: Opinion by Ripple, Civil Rights Act of 1964, Labor & Employment, Pretext, Prima Facie Case, Race Discrimination, Reverse Race Discrimination, Title VII

ADA Mixed-Motive Plaintiff Must Now Prove That Her Employer Would Not Have Fired Her But For The Disability

Posted on February 19, 2010 by Michael Rigney

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.

Tags: Opinion by Rovner, ADA, ADEA, Age Discrimination in Employment Act, Americans With Disabilities Act, Civil Rights Act of 1964, Civil Rights Act of 1991, Labor & Employment, Mixed-Motive, Remedy, Retaliation, Title VII

Failure To Prove Employer's Knowledge Of Pregnancy Defeats Discrimination Claim

Posted on February 12, 2010 by Michael Rigney

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.

Tags: Opinion by Wood, Civil Rights Act of 1964, FMLA, Gender Discrimination, Labor & Employment, Retaliation, Similarly Situated, Title VII

Highly Inflammatory Evidence Properly Excluded At Trial

Posted on February 2, 2010 by Michael Rigney

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.

Tags: Opinion By Simon, Civil Rights Act of 1964, Gender Discrimination, Jury Instruction, Labor & Employment, Retaliation, Title VII

Discrimination Claims Fail In The Face Of Substantial Evidence Of Failure To Meet Expectations

Posted on January 29, 2010 by Michael Rigney

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.

Tags: Opinion by Sykes, ADEA, Age Discrimination in Employment Act, Civil Procedure, Civil Rights Act of 1964, Labor & Employment, Race Discrimination, Retaliation, Summary Judgment, Title VII

Failure To Pursue Complaint Regarding Racial Comments Forecloses Hostile Environment Conclusion

Posted on January 27, 2010 by Michael Rigney

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.

Tags: Opinion by Bauer, Civil Rights, Civil Rights Act of 1964, Disparate Pay, Evidence, Labor & Employment, Retaliation, Title VII, hostile work environment

Plaintiff Fails To Create Issue Of Fact With Respect To Employer's Non-Discriminatory Reasons For Actions

Posted on January 25, 2010 by Michael Rigney

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.

Tags: Opinion by Williams, Civil Rights Act of 1964, Gender Discrimination, Labor & Employment, Retaliation, Title VII, hostile work environment

Failure To Even Contest Evidence Of Not Meeting Employer's Expectations Defeats Title VII Claim

Posted on January 22, 2010 by Michael Rigney

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.

Tags: Opinion by Bauer, Civil Rights Act of 1964, Discrimination, Labor & Employment, Proof, Retaliation, Title VII

Insufficient Details Of Work Restrictions And Job Duties Fails "Similarly Situated" Requirement

Posted on December 23, 2009 by Michael Rigney

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.

Tags: Opinion By Lawrence, CRA, Civil Rights Act of 1964, Evidence, Labor & Employment, Race Discrimination, Section 1981, Similarly Situated, Title VII

Evidence Of Discriminatory Intent Based On First-Hand Experience, Even If Uncorroborated And Self-Serving, Is Enough To Get A Discrimination Claim To The Jury When It Is Coupled With An Adverse Job Action

Posted on December 17, 2009 by Michael Rigney

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.

Tags: Opinion by Cudahy, CRA, Civil Rights Act of 1964, Constitutional Law, First Amendment, Labor & Employment, National Origin Discrimination, Retaliatory Discharge, Section 1983, Title VII

Sexual-Harassment Plaintiff Cannot Establish A Tangible Employment Action When She Simply Stopped Reporting For Work

Posted on December 10, 2009 by Michael Rigney

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.

Tags: Opinion By Lawrence, Civil Rights Act of 1964, Labor & Employment, Retaliation, Sexual Harassment, Title VII

City's Failure To Promote (Four Times) Is Not Actionable Where Interview Process Was Reasonable And Fair

Posted on October 9, 2009 by Michael Rigney

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.

Tags: Opinion by Kanne, Civil Rights Act of 1964, Evidence, Labor & Employment, Materially Adverse Employment Action, Retaliation, Section 1981, Title VII

Without Evidence Of Pretext, Employer's Firing Is Non-Discriminatory When Employee Admits To The Conduct At Issue

Posted on October 2, 2009 by Michael Rigney

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.

Tags: Opinion by Evans, Civil Rights Act of 1964, Defamation, Gender Discrimination, Implied Covenant Of Fair Dealing, Labor & Employment, Pretext, Title VII

Employee Who Was Truthful During Misconduct Investigation Not "Similarly Situated" To Terminated Employees

Posted on May 5, 2009 by Matthew Luzadder

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.

Tags: Opinion by Bauer, Civil Rights Act of 1964, Labor & Employment, Race Discrimination, Retaliation, Title VII

Failure to Promote Was Not Discriminatory When Plaintiff Failed to Show Existence of an Open Position or Evidence Supporting an Early Promotion Requirement

Posted on April 1, 2009 by Michael Rigney

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.

Tags: Opinion by Manion, Civil Rights Act of 1964, Failure to Promote, Labor & Employment, Title VII

Employee's Termination Three Months After Threat of EEOC Complaint Does Not Give Rise to Inference of Retaliation

Posted on October 24, 2008 by Michael Rigney

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.

Tags: Opinion by (dissenting) Rovner, Opinion by Bauer, Civil Rights Act of 1964, Discrimination, Dissenting Opinion, Labor & Employment, Title VII

Employee's Allegation That Employer Denied Him a Raise Every Year Survives Ledbetter Challenge

Posted on October 23, 2008 by Michael Rigney

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.”

Tags: Opinion by Williams, Civil Procedure, Civil Rights Act of 1964, EEOC, Labor & Employment, Ledbetter, Title VII

In Their Opinion
Kelley Drye & Warren LLP

Chicago
333 West Wacker Drive
26th Floor
Chicago, IL 60606
Phone (312) 857-7070
Fax (312) 857-7095

New York
101 Park Avenue
New York, NY 10178-0002
Phone (212) 808-7800
Fax (212) 808-7897
Alt Fax (212) 808-7898

Washington, DC
Washington Harbour, Suite 400
3050 K Street, NW
Washington, DC 20007-5108
Phone (202) 342-8400
Fax (202) 342-8451

Los Angeles
10100 Santa Monica Blvd.
23rd Floor
Los Angeles, CA 90067
Phone (310) 712-6100
Fax (310) 712-6199

Stamford
400 Atlantic Street
Stamford, CT 06901
Phone (203) 324-1400
Fax (203) 327-2669

Parsippany
200 Kimball Drive
Parsippany, NJ 07054
Phone (973) 503-5900
Fax (973) 503-5950

Brussels
106 Avenue Louise
Brussels, 1050
Belgium
Phone (32)(2) 646-1110
Fax (32)(2) 640-0589

Seventh Circuit Court of Appeals commentary from Chicago lawyer & attorney Michael E. Rigney of Kelley Drye & Warren Law Firm, offering insights and analysis related to 7th Circuit Court opinions and Illinois federal courts.