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

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.

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

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

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

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

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

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

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