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

OVERLY v. KEYBANK NATIONAL ASSOCIATION (November 10, 2011)

Krysten Overly was a financial advisor at KeyBank in central Indiana. Rick Bielecki became her immediate supervisor in early 2007 but their interaction was limited because of his broad regional supervisory obligations. One day, while he was working with her, he observed that she was using procedures that were not in compliance with the Bank's policies. After an investigation, the compliance office recommended her termination. With Bielecki’s and his supervisor’s support, Overly escaped with a warning and a small fine. Overly complained to the Human Resources Department about the disciplinary action as well as some sexist remarks she alleged were made by Bielecki. The Bank reorganized beginning in 2007 and almost tripled the number of financial advisors nationwide. Bielecki added one advisor to Overly's region and realigned branch bank assignments. Overly registered a complaint with KeyBank's CEO. She cited the disciplinary action and the sexist remarks, as well as the loss of territory. The Bank conduct an investigation and concluded that there was no evidence of discrimination or retaliation. Overly submitted her resignation to Bielecki on October 1, 2007. Upon receipt of the resignation, Bielecki applauded, pushed her toward the door, and yelled "Good Riddance Bitch." Overly filed suit alleging hostile work environment, constructive discharge, and gender discrimination. Judge Barker (S.D. Ind.) granted summary judgment in KeyBank's favor. Overly appeals.

In their opinion, Seventh Circuit Judges Evans (who, as a result of his death, took no part in the decision) and Williams and District Judge Conley affirmed. The Court first addressed the hostile work environment claim and concluded that Overly's work conditions did not meet the "severe or pervasive" requirement. Bielecki called her "cutie" five or 10 times, referred to her "pretty face," and made her leave her purse outside of a meeting room. None of this was threatening, it did not occur very frequently, and it did not unreasonably interfere with her work. The Court conceded that adding the disciplinary incidents to the mix might approach the actionable level, but declined to do so because there was no evidence that the discipline was related to her gender. Furthermore, she admitted the noncompliant activities. Likewise, the territory realignment was not shown to be related to gender. The Court acknowledged that there was evidence of gender bias after her resignation. But Bielecki's conduct and remarks after receiving her resignation cannot support a hostile work environment claim. The Court quickly dispensed with her constructive discharge claim since it imposes a higher standard than the hostile work environment claim - which it had just rejected. The Court also rejected the gender discrimination claim, again refusing to consider the resignation remarks as direct or circumstantial evidence of discrimination because of the timing of those remarks. Finally, the Court rejected her Title VII retaliation claim. Her complaint to the Bank does constitute protected activity but there is no evidence in the record of a causal link between the activity and Bielecki's conduct.

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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.

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THOMPSON v. MEMORIAL HOSPITAL OF CARBONDALE (November 3, 2010)

Archie Thompson was a paramedic with the Jackson County Ambulance Service (JCAS), which served the Southern Illinois Regional Emergency System. Memorial Hospital of Carbondale had medical control of the System. Thompson was the only African-American full-time paramedic in the entire System. In late 2003, Thompson handled a diabetic emergency call. He administered an intravenous solution and revived the patient. The patient declined further medical assistance and Thompson left. After he returned to his base, Tim Brumley (Thompson's supervisor) criticized him for not following the proper protocol of calling medical control before leaving the scene of a diabetic emergency. Thompson claimed not to know the protocol. It was not posted at the base or in his ambulance. Brumley also learned, on inquiry, that other paramedics were doing the same thing. Brumley reported his concerns to Paula Bierman, the System Coordinator. Bierman advised the Hospital's Medical Director that Thompson should be disciplined, citing both his “total disregard” for protocol and a then-recent failing test result. A few days later, Bierman prepared a disciplinary report removing Thompson from primary care medical duties and signed Doolittle's initials. Thompson was placed on paid probation for three months, during which time he was under constant supervision. While on probation, he began seeing a counselor. Shortly thereafter, he took a medical leave of absence and eventually decided not to return to work. Thompson filed suit against Memorial Hospital and the ambulance service, alleging race discrimination, hostile work environment, and constructive discharge. Judge Murphy (S.D. Ill.) granted summary judgment to the ambulance service on all claims and to Memorial Hospital on the hostile work environment and constructive discharge claims. A jury heard the race discrimination claim against the Hospital, found in Thompson's favor, and awarded $500,000. The Hospital appeals from the jury verdict -- Thompson cross-appeals from the hostile work environment and constructive discharge summary judgment rulings.

In their opinion, Judges Kanne, Evans, and Williams affirmed in all respects except with respect to the amount of damages. The Court dispensed with the cross-appeal in relatively short order. To be successful, a hostile work environment claim must contain evidence of severe and pervasive harassment -- so much so that it changes the conditions of employment. The test is even higher for a constructive discharge claim. The Court concluded that the evidence here did not reach that level. With respect to the Hospital's appeal, the Court noted that it raised several arguments that were improperly preserved below. First, the Hospital argues that Thompson was not its employee. But it admitted below that this was a factual question and it never presented the issue to the jury. Second, the Hospital argues that the jury should not have heard testimony of the racial comments Bierman made because she was not the decision maker. But the evidence is relevant if she exerted significant influence over the decision maker. Here, the district court made a threshold determination that there was enough evidence on that issue to go to the jury and the Hospital did not seek an instruction on the point. Third, the Hospital argued that the probation was not an adverse employment action. But, although probation is not always an adverse employment action, the district court ruled that whether it was here was a factual question. The Hospital did not argue the point the jury or ask for an instruction. Having decided not to press these issues before the jury, the Hospital cannot rely on them now. Finally, the Court did believe that the $500,000 award was excessive. There was testimony of Thompson's depression and anxiety that his therapist characterized as "severe." But the adverse employment action was only placement on probationary status with no change in compensation. After reviewing awards in similar cases, the Court landed on a remittitur to $250,000.

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CHAPIN v. FORT-ROHR MOTORS (September 3, 2010)

Trent Chapin is a used-car salesman. For years, he has worked on and off for Larry Kruse at several different dealerships owned by Bob Rohrman. In early 2004, Kruse hired him at Rohrman's Mid-States Motors in Fort Wayne, Indiana. Within weeks, however, Kruse was replaced by a Pakistani Muslim. The new manager fired Chapin within a month. In June, Kruse became the manager of Rohrman's newly opened Fort-Rohr dealership, also in Fort Wayne. He hired Chapin again as a used-car salesman. Chapin filed an EEOC charge in February of the following year. He alleged that Mid-States had discriminated against him on the basis of race. When Kruse found out about it, he was very upset. He met with Chapin and made it very clear to him that he needed to withdraw the EEOC charge if he wanted to keep his job. Although Chapin indicated at the meeting that he would withdraw the charge, he did not -- and he did not return to work. Kruse tried to contact Chapin on several occasions after the meeting. They finally met again in March. Kruse made it clear at that meeting that he had not intended to fire Chapin and that he still had a job. Chapin told him that he would return to work when he was finished with a painting project. The dealership followed up that meeting with several letters to Chapin stating that he was still employed and was expected to be at work. Chapin filed suit under Title VII, alleging racial discrimination against Mid-States and retaliation against Fort-Rohr. A jury found against him on his discrimination claim but found in his favor on the retaliation claim, awarding $1.1 million in compensatory and punitive damages. Fort-Rohr appeals.

In their opinion, Judges Flaum, Williams, and Sykes reversed and remanded. Title VII makes it illegal for an employer to take an adverse employment action against an employee for filing an unfair employment charge. The Court addressed both of Chapin's “adverse employment action” theories -- that he was actually discharged or that he was constructively discharged. On the former, the Court concluded that no rational juror could have found that Chapin was actually discharged at the first meeting with Kruse. The Court conceded that the exchange at the first meeting, in a vacuum, could support an argument for discharge, particularly if he filed suit the next day. Kruse was angry, raised his voice, and told Chapin that he would not have a job unless he withdrew the charge (which Chapin did not). However, the Court emphasized that the question must be addressed not in isolation but in the context of all subsequent interaction. All of the dealership's conduct after that short meeting is inconsistent with an actual discharge. In fact, Chapin's own testimony is that he was not fired at that meeting but that he would have been fired had he returned without withdrawing the charge. There was no actual discharge. With respect to the constructive discharge argument, the Court again concluded that no reasonable juror could find for Chapin. Two forms of constructive discharge are recognized in this Circuit and both require intolerable working conditions. In the first, an employee resigns because of discriminatory harassment -- that does not apply here. In the second, an employer acts in such a way as to communicate to a reasonable employee that he or she will be terminated. Again, Chapin may have had such a belief immediately after the first meeting but such a belief would have been corrected almost immediately in response to subsequent events and communications. Chapin simply decided not to return to work -- the Court refused to speculate on what would have happened had he decided otherwise.

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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.

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

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

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

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

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

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

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

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

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