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

EGAN v. FREEDOM BANK (October 6, 2011)

Freedom Bank president Greg Dempsey hired Belinda Egan as a vice president in July 2007. According to her complaint, Egan met with Don Burton, a bank director, at his request several times over the next few months. At one of those meetings in September, Burton told Egan that he thought she should be the next bank president and that the directors had the power to fire anyone on the management team. He then made a sexual advance. Egan left but later discussed the conversation with Dempsey and Human Resources. Burton resigned shortly thereafter. The bank hired Dave Barajas to replace Greg Dempsey as president. According to Dempsey, Barajas told him that he had heard that Egan had done something for which she should have been fired. Barajas took over in December and hired four new employees over the next several months. Then, in February of 2008, Barajas told Egan that he had eliminated her position. Egan brought suit for retaliation, hostile work environment, and gender discrimination. Judge Reinhard (N.D. Ill.) granted summary judgment to the Bank. Egan appeals.

In their opinion, Seventh Circuit Judges Manion, Williams, and Hamilton reversed and remanded. The Court first addressed the retaliation claim, which Egan prosecuted under the direct method of proof. The parties agreed that she engaged in statutorily protected activity and suffered an adverse action. The only issue was whether she introduced sufficient evidence of a causal connection between her report of Burton's sexual advances and her termination. Although the Court found the Bank's explanation plausible, it concluded that it was not the only plausible explanation. Several things supported Egan's contention: Barajas' remark to Dempsey, the fact that Egan’s was the only position eliminated while four other positions were filled, and the fact that there were no complaints about her performance. Since a reasonable jury could conclude that the Bank fired her in retaliation for her complaint, the summary judgment was reversed. The Court affirmed summary judgment on both the hostile work environment (a single sexual overture does not establish hostile work environment)and gender discrimination claims (Egan failed to develop this claim below). Finally, the Court concluded that it lacked jurisdiction over a magistrate judge's sanctions order that Egan challenges. The magistrate judge has only the power to recommend a sanction (since there was no consent to proceed before the magistrate judge). Since the district court judge never addressed the recommended sanction, it is not reviewable on appeal.

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

O'LEARY v. ACCRETIVE HEALTH, INC. (September 21, 2011)

Accretive Health is a Chicago-based firm that provides consulting services to hospitals. It hired Joseph O'Leary in early 2005. Although the firm was initially satisfied with O'Leary's performance, it started having reservations in mid-to-late 2006. It even replaced him at one of the hospitals for which he was responsible at the request of the hospital's CFO. In late 2006, O'Leary learned that one of his female reports had made sexually charged remarks at a company dinner. O'Leary reported the incident to his superiors. At the same time, O’Leary expressed his belief that the same female was treating an African-American subordinate in a harsh manner. A company investigation into the sexual remarks concluded that the employee exercised poor judgment but did not violate any company policy. She was reprimanded. In December of 2006, Accretive terminated O'Leary’s employment. O'Leary brought suit under Title VII and § 1981, alleging that his termination was in retaliation for his actions opposing sexual and racial discrimination. Judge Conlon (N.D. Ill.) granted summary judgment to Accretive. O'Leary appeals.

In their opinion, Seventh Circuit Judges Cudahy and Rovner and District Judge Adelman affirmed. Both Title VII and § 1981 prohibit retaliation against those who oppose the discriminatory practices made illegal by those statutes. The Court first addressed whether O'Leary established that he engaged in protected activity -- that is, that he took some action in opposition to prohibited discrimination. The Court concluded that he did not with respect to the sexual remarks. Given the relatively tame nature of those remarks and the facts that there was only one incident and that no one present felt harassed, O'Leary could not have reasonably believed that they constituted prohibited sexual harassment. The Court concluded that O'Leary did establish that he engaged in protected activity with respect to the employee’s treatment of her African American subordinate. Although the record is not very clear, the Court concluded that a fair reading supports that conclusion. O'Leary testified that he discussed his concern about race discrimination with his superiors, that his concern was based on more than one incident, and that the conduct resulted in the employee’s resignation. Satisfied that O'Leary met the protected activity requirement, the Court considered his claim under both the direct and indirect methods of proof. It easily rejected his claim under the direct method. O'Leary relied almost exclusively on the temporal proximity between his complaint and his discharge. But temporal proximity is rarely enough, by itself, and the timing in this case does not suggest retaliation. With respect to the indirect method, the Court concluded that O'Leary could neither show that he was meeting his employer’s expectations nor that Accretive's stated reasons for firing him were perpetual. Although there are issues of fact with respect to O'Leary's performance, the record contains sufficient undisputed facts to support the conclusion that he was discharged because of his performance.

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

DICKERSON v. BOARD OF TRUSTEES (September 16, 2011)

The Belleville Area Community College District 522 has employed Robert Dickerson, who suffers from a mild mental impairment, as a part-time janitor since 1999. He unsuccessfully applied for full-time positions in 2005, 2006, and 2007. In October of 2007, he complained, both at a Board meeting and to the District's attorney, that he was the victim of discrimination. Less than two months later, the District conducted its first formal evaluation of Dickerson's work performance and gave him an overall Unsatisfactory rating. Dickerson disagreed with the evaluation and filed a union grievance and an EEOC charge. The District conducted a second review six months later and found his performance still Unsatisfactory. Although the District fired Dickerson in September of 2008, it later reinstated him. A union arbitrator ruled that the termination violated the collective bargaining agreement. Dickerson brought suit alleging that the District's failure to promote him, its negative evaluations, and its termination all violated the Americans with Disabilities Act. Judge Murphy (S.D. Ill.) granted summary judgment to the District. Dickerson appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Bauer and Williams affirmed. The ADA makes it illegal to discriminate against a disabled employee because of his disability. The Court addressed Dickerson's discrimination and retaliation claims together. It first concluded that neither claim could survive summary judgment under the direct method of proof. The Court concluded that the record established that it was Dickerson's work performance that was connected to his termination, not any discriminatory or retaliatory intent on the District’s part. The Court also addressed the claims under the indirect method of proof. Under that method, Dickerson had the burden to show that he was meeting the District's legitimate employment expectations. The Court noted that the record was replete with evidence of Dickerson's unsatisfactory work performance. Dickerson failed to create an issue fact with respect to satisfactory performance. Summary judgment was proper.

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

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.

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

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.

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

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.

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

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.

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

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.

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

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

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

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

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

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.

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

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.

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

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.

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

 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.

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