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

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.

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KANSAS CITY SOUTHERN RAILWAY CO. v. KOELLER (July 27, 2011)

The Sny Island Levee Drainage District has operated a levee and drainage system in central Illinois for over 100 years. The system is designed to protect a 114,000-acre area from Mississippi River flooding. Over 99% of the affected area is agricultural. The rest is residential, commercial, utility, and railroads. The Kansas City Southern Railway Co. and the Norfolk Southern Railway Co. (the "Railroads") own a combined 355 acres. For decades, the District has funded its operations by assessing a per-acre fee for each landowner in the area. For the last 20 years, the fee has been $8.50 an acre. The District found itself in a precarious financial position after it experienced severe flooding in 2008 and a substantial increase in diesel fuel prices. The Commissioners decided they needed a $10 per acre fee increase. They also decided to stop charging the fee on a uniform basis. They decided pipelines, railroads, and utilities were under assessed. They hired an expert in flood protection projects and asked him to calculate the benefits for the non-agricultural properties. The expert did the analysis but he was short on hard data and used questionable methodologies. When the analysis resulted in a number that the Commissioners could not support, they "refined" the numbers. As a result, the assessments for the railroads increased by 4800-8300%. The Commissioners also exempted land within the municipalities, under the supposition that the cost of collecting the small assessments outweigh the benefits. Then they assumed that all the commercial and industrial properties other than the railroads, pipelines, and utilities were within municipal limits. The Commissioners filed a petition for authorization with the County Court, published notices in the local newspapers, and sent notices to landowners. The notice referred to a $10.00 increase per acre but did not mention the benefit-based assessments for railroads, pipelines, and utilities or the exemption for land within municipalities. The Railroads did not object and the court certified the assessment. When they first received their new assessments, the Railroads filed suit under the Railroad Revitalization and Regulatory Reform Act, which prohibits discriminatory taxes against railroads. The District moved to dismiss on Rooker-Feldmangrounds. Judge Scott (C.D. Ill.) denied the Rooker-Feldman motion and ruled that the assessment was a tax under the Act. She denied the preliminary injunction, however, because the Railroads did not submit evidence that their lands’ assessed value exceeded its true market value by 5%. After a bench trial, the court found in favor of the District, again because of the Railroads' failure to submit evidence of their lands' true market value. The Railroads appeal.

In their opinion, Seventh Circuit Judges Bauer, Wood, and Williams reversed and remanded. The Court first rejected the Rooker-Feldman argument. The doctrine only applies to state court "losers." The Railroads were not even present for, much less parties in, the state court proceedings. There is no judgment against them. Furthermore, they are not seeking a review of the state court order. They are asserting an independent federal cause of action under the Act. Two questions were presented to the Court on the merits: whether the assessment was "another tax" under the Act and, if so, whether the tax was an impermissible discrimination. With respect to the first, the Court looked to the statute, the Supreme Court, its own jurisprudence, and its sister circuits' interpretations to conclude that the assessment was a tax. It raises general revenues for use by the entire District. It is not tied to any specific project or landowner. The Court turned to whether it was discriminatory. It first had to decide who to compare the Railroads to: all property owners, other commercial and industrial property owners, or the Railroad's competitors. It recognized that the three other subsections of the section of the Act at issue dealt with different types of taxes but included reference to commercial and industrial taxpayers. Given that the fourth subsection addressed the same kinds of discrimination, the Court concluded the appropriate comparator group is the other commercial and industrial taxpayers. Since the Act does not define discrimination, the Court adopted the ordinary meaning of the word -- a failure to treat persons equally without reasonable distinction. Here, the record establishes that the Commissioners adopted a proportionately heavier tax on the Railroads. The Court cited the "inadvertent" exemption for the properties outside the municipal boundaries, the exemption for the commercial and industrial properties within the municipality, and the questionable methodology. In addressing the appropriate remedy, the Court noted that the Act provides an exemption to the Tax Injunction Act. Notwithstanding the exemption, however, the Court noted that a federal court should act with restraint in such matters. Therefore, an injunction should not enjoin the entire scheme but should eliminate the discriminatory effects by enjoining the 2009 recalculation and allowing the District another shot at a non-discriminatory assessment.

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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.

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TURNER v. THE SALOON (February 8, 2010)

Paul Turner was a waiter at The Saloon restaurant. After working there for several years, Turner and one of his supervisors carried on a sexual relationship that lasted for about nine months. According to Turner, the supervisor retaliated against him after she ended the relationship. He alleges that she changed his table assignments, disciplined him without cause, and sexually harassed him on a number of specific occasions. Turner also alleges that he was discriminated against because of his psoriasis. He wears no underwear as a result of that condition and therefore occasionally exposes himself while changing clothes. He claims that his supervisors failed to accommodate his condition. Instead, he was forced to change in a “vile” men’s room. One day, in the middle of a shift and with no other waiters on duty, Turner left the restaurant to run an errand. When he returned, he was fired. Turner sued the restaurant and several managers for gender and disability discrimination under Title VII and the Americans with Disabilities Act. He also made a claim for overtime. The court granted summary judgment to the defendants. Turner appeals.

In their opinion, Judges Manion, Rovner, and Sykes reversed and remanded in part in affirmed in part. The Court first addressed the Title VII sexual harassment claim. It concluded that the district court erred in not considering most of the alleged acts of harassment because they occurred outside the limitations period. Under the Supreme Court's decision in Morgan, whether an alleged act of harassment is considered by a court depends on whether the claim is for employment discrimination or for hostile work environment. In an employment discrimination claim, discrete acts outside the limitations period should not be considered. However, in a hostile work environment claim, all acts can be considered as long as one act contributing to the hostile environment took place during the limitations period. Taking all the alleged acts into account, the Court had little difficulty in finding that they were sufficient to survive summary judgment. The Court noted the presence of at least five discrete acts, three of which were aggressively physical. Since the district court did not reach the issue of employer liability, the Court left the issue for remand. The court next addressed Turner's claim that his termination was in retaliation for his complaints about the harassment. The Court concluded that Turner was unable to establish a prima facie case under either the direct or indirect method. It noted a series of at least ten serious reprimands in the eight or nine months preceding his termination as well as the fact that he left his job in the middle of the shift. The serious performance problems as well as the passage of time since his harassment complaint belie a causal connection between the complaint and his termination. The Court summarily rejected Turner's ADA discrimination claim -- his psoriasis is not a disability under the Act since it does not limit any major life activity. The fact that he is not disabled does not preclude his ADA retaliation claim. Since he did raise such a claim with his employer, his employer is not allowed to retaliate. He does not prevail on that claim, however, for the same reasons he could not prevail on his Title VII retaliation claim. Finally, the Court rejected Turner's wage claims as wholly unsupported by the evidence presented.

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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.

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BLOCH v. FRISCHHOLZ (November 13, 2009)

The Blochs have owned and occupied several units in the Shoreline Towers condominium building in Chicago for years. The Blochs are Jewish – each of them has, for years, displayed a mezuzah on the doorpost of his or her unit. In 2001, the Board of Managers of the Condo Association enacted a new rule that prohibited the placement of "objects of any sort" outside any unit in the building. For several years, enforcement of the rule was generally limited to the removal of clutter. In 2004, however, the Association begin to interpret the rule to include a mezuzah (as well as wreaths, crucifixes, political posters, etc.). Despite repeated appeals and attempts to educate the Board on the religious significance of a mezuzah, the practice continued. The Blochs filed suit, seeking relief under the Fair Housing Act (FHA) and 42 U.S.C . § 1982. The district court granted summary judgment to the defendants. A panel of the Seventh Circuit affirmed, with one dissent. The Blochs sought rehearing en banc.

In their opinion, Chief Judge Easterbrook and Judges Bauer, Posner, Kanne, Wood, Evans, Sykes and Tinder affirmed in part and reversed and remanded in part. The Blochs asserted three separate FHA theories -- the Court addressed each in turn. Under § 3604(a), it is unlawful to "refuse to sell or rent" or to "refuse to negotiate for the sale or rental" or to "otherwise make unavailable" a dwelling to a person because of religion. Referring to its decision in Halprin, the Court stated that the FHA is generally concerned with access to housing and does not support a claim of discrimination arising after a purchase. Although the Court thought the section might support a constructive eviction claim, it concluded that the Blochs could not maintain such a claim since they never vacated the premises. The Court affirmed with respect to § 3604(a). Section 3604(b) prohibits discrimination based on religion against any person in the terms or conditions of the sale or rental of a dwelling. The Court concluded that one of the terms and conditions of the Blochs' purchase of a condominium unit was their agreement to be governed by the Condo Association and its Board of Managers. Although § 3604(b) does not address isolated discriminatory conduct of neighbors, the Court concluded that it did prohibit the Association from discriminating against the Blochs in its enforcement of its rules. The Blocks could rely on § 3604(b) if they produced sufficient evidence of discrimination. Thirdly, the Court considered § 3617 of the FHA. That section makes it unlawful to "coerce, intimidate, threaten, or interfere" with any person's exercise or enjoyment of any right granted by other sections of the FHA. The Court concluded, effectively overruling part of Halprin, that the interference could occur post-purchase. Like their claim under § 3604(b), the Court concluded that the Blochs could pursue a claim under § 3617 if there were sufficient evidence of discriminatory intent. On the issue of discriminatory intent, the Court concluded that the combination of facts and inferences on the record was sufficient to allow a jury to conclude that the conduct of the Association was intentionally discriminatory toward the Blochs because of their religion.

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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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CREWS v. CITY OF MT. VERNON (June 2, 2009)
 

Ryan Crews is a member both of the Mount Vernon Police Department and the Army National Guard and has been so for years. His work obligations to the department and the military frequently conflict. Since 1997, however, the department has allowed Crews to adjust his work schedule by moving any weekend department shifts that conflict with his guard exercises to the regular workweek. Thus, Crews was paid for a full week's work without using vacation or other time-off. Between 2000 and 2003, the department offered the same arrangement to three additional guard members hired as police officers. Non-guard members had no comparable opportunities to reschedule workdays. When the department hired two more guard members in 2006, the department rescinded the policy. The additional guard members in the department made implementation of the policy too costly. Crews brought an action against the City under the Uniformed Services Employment and Reemployment ct ("USERRA"), alleging that the rescission of the policy denied him a benefit of employment. The district court granted summary judgment to the City, ruling that § 4316(b) did not require the City to provide scheduling benefits not generally available to members of the department not in the National Guard. Crews appeals.

In their opinion, Judges Manion, Evans and Tinder affirmed. The Court noted that USERRA contains a general anti-discrimination provision in § 4311 as well as the § 4316 requirement that service members who are on leave to fulfill their obligations are entitled to benefits generally afforded other employees on similar leave. Addressing § 4316, the Court held that Crews was entitled only to equal treatment, not to the preferential treatment the policy afforded. The Court further held, however, that § 4311 could also apply. The Court found some basis for Crews' claim in the statute's "any benefit of employment" language. It concluded, however, that the better interpretation of the statute is that a "benefit of employment" is one afforded military and non-military employees alike. Thus, Crews could not prevail under § 4311, either.

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LUCERO V. NETTLE CREEK SCHOOL CORPORATION (May 29, 2009)

Sharon Lucero, a female Hispanic, was hired by the Nettle Creek School Corporation in 2001 to teach English at the Hagerstown Junior - Senior High School (the "School"). The School served students in grades 7 through 12 in the same building. Lucero was informed, at the time of her hire, that she could be assigned to teach English at any of the grade levels. For her first two years, Lucero taught 7th and 8th grade English, respectively. For the third year, the School assented to her request to teach 12th grade English. The year progressed quite differently than her prior years of service. The principal criticized her performance, the students complained of her teaching style, and the parents complained of her grading policies, to name just a few of her problems. In addition, two specific incidents late in the year stood out. In one, a student showed a photograph in class of a partially naked classmate. In another, a group of students left several Playboy magazines in her classroom. The students involved in these two incidents were all suspended. After the school year, the School hired a new English teacher, a white male. The school assigned the new teacher to 12th grade English and reassigned Lucero to 7th grade English. Lucero sued the School, challenging her reassignment under theories of retaliation, discrimination, hostile work environment and breach of contract. The district court granted summary judgment to the School. Lucero appeals.

In their opinion, Judges Bauer, Flaum and Evans affirmed. The Court addressed each of Lucero’s legal theories in turn. With respect to her retaliation claim, the Court noted that she was required to establish that she suffered a materially adverse employment action. The Court addressed the reassignment in light of the Supreme Court's decision in Burlington Northern. Burlington Northern tells us that a court should apply an objective standard for assessing whether the reassignment might have dissuaded a reasonable person from making a charge of discrimination. Here, Lucero was reassigned to teach the same subject in the same building under the same conditions. The Court concluded that her reassignment was not a materially adverse action. The Court similarly found that Lucero failed to demonstrate a materially adverse employment action with respect to her discrimination claim, albeit under a different test. Since her compensation and work conditions were unchanged, Lucero attempted to establish that her reassignment was an adverse employment action by asserting that it would negatively impact her career prospects. The Court found that she failed to submit adequate evidence of a negative career impact and upheld the lower court on the discrimination claim. Next, the Court concluded that Lucero's allegations of hostile work environment failed as a matter of law. Although depicting inappropriate behavior, the Court concluded that they were isolated incidents, were not related to her gender or national origin, and did not support employer liability. Finally, the Court summarily rejected Lucero's breach of contract claims.

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SANDOVAL v. CITY OF CHICAGO (March 30, 2009)

Juan Sandoval and Sidney Pennix were Chicago police officers. They were also in the military reserve and on active duty in El Salvador and Iraq, respectively. When Chicago scheduled the examination for candidates for sergeant, Sandoval and Pennix requested an opportunity sit for the test. Chicago accommodated their requests by offering them the opportunity to take the test in, respectively, San Salvador and Frankfurt. They both took the test, passed and were placed on the eligibility list. They then filed suit pursuant to the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). They both allege that they should have been offered locations closer to where they were stationed and also seek compensation for the transportation cost to the testing locations. The district court granted summary judgment to the City of Chicago. Sandoval and Pennix appeal.

In their opinion, Chief Judge Easterbrook and Judges Kanne and Evans affirmed. The Court focused on the language of USERRA. It provides that a person serving in the military may not be denied a benefit of employment because of that service. In other words, said the Court, the Act requires an employer to treat persons on active duty the same as other employees. Here, Sandoval and Pennix seek an accommodation - not equal treatment. Chicago treated Sandoval and Pennix the same as it would have treated any other employee who was on leave for a non-military reason. The City did not violate USERRA.

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SIMPSON v. OFFICE OF THE CHIEF JUDGE OF THE CIRCUIT COURT OF WILL COUNTY (March 23, 2009)

Laura Simpson was the Director of the River Valley Juvenile Detention Center. In late 2002, Simpson began a period of paid sick leave. During her leave, the county auditor released a report that concluded that Simpson engaged in misconduct. The auditor recommended that she be fired. The report, which was initiated before Simpson went on leave and was initially focused on another county employee, concluded that Simpson a) allowed a psychologist under her authority to defraud the county, b) maintained an improper relationship with a juvenile detainee, and c) acted negligently in handling an attempted suicide. The Chief Judge fired Simpson. Simpson brought an action for interference with her FMLA rights and for retaliation. The district court granted summary judgment for the defendants. Simpson appeals.

In their opinion, Judges Ripple, Kanne and Tinder affirmed. On the interference claim, the Court noted that the only element in dispute was whether the defendants denied Simpson a benefit of the FMLA. The FMLA does not require an employer to reinstate an employee after leave if he would have terminated her regardless of whether she took the leave. The Court concluded that Simpson failed to provide any evidence that the termination of her employment was related to her leave. The Chief Judge relied on the conclusions contained in the audit report and its recommendation to terminate Simpson's employment. The Court addressed Simpson’s FMLA discrimination claim under both the direct and indirect methods. The Court concluded that the evidence did not support a retaliation claim, for much the same reason that it did not support an interference claim.
 

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HASAN v. FOLEY & LARDNER (December 15, 2008)

Zafar Hasan is a Muslim of Indian descent. In 2000, he joined the law firm of Foley & Lardner (“Foley”) as an associate. (The following are facts construed in a light most favorable to Hasan.) During his first year at the firm, he received mostly positive reviews and maintained high billable hours. The events of September 11, 2001 changed Hasan’s standing in the firm. Hasan’s billable hours dropped considerably and he received much less positive reviews. At a meeting in October of 2002, Foley decided to fire Hasan. The firm notified Hasan in December that he was being terminated. He filed suit in 2004, alleging that Foley violated Title VII of the Civil Rights Act. The district court granted Foley’s motion for summary judgment. Hasan appeals.

In their opinion, Judges Coffey, Ripple and Manion reversed and remanded. The Court noted that Hasan proceeded under the “direct method” of proving discrimination. Under the direct method, a plaintiff must present evidence, direct or circumstantial, that points to a discriminatory reason for the action of the employer. Courts accept three types of circumstantial evidence in a direct method case. Hasan relies on two types: a) suspicious timing, ambiguous statements, or comments directed at others in the same group, and b) evidence that the employer’s stated reasons for its conduct is not worthy of belief. Hasan’s evidence included: a partner’s anti-Muslim comments, suspicious timing in Hasan’s downturn in billable hours, the financial health of the firm, Foley’s treatment of other Muslim associates, and a changing justification for Foley’s conduct once it located Hasan’s performance reviews. The Court disagreed with the district court’s treatment of some of the evidence. It concluded, for example, that: a) evidence of an anti-Muslim comment by a partner who was not Hasan’s supervisor was valid nonetheless because the partner attended the meeting at which Foley decided to terminate Hasan (and, in fact, may have instigated the decision), b) evidence of an anti-Muslim remark made a year before the decision to terminate may nonetheless be valid circumstantial evidence when it was made at about the time when Foley began to assign work elsewhere, which in turn became a stated reason for his termination, and c) evidence regarding Foley’s treatment of other Muslims is not per se irrelevant but may be relevant depending on how closely tied it is to Hasan’s circumstances. The Court rejected Foley’s argument that Hasan failed to produce evidence of its treatment of similarly situated employees. The direct method of proof does not require such evidence. Finally, the Court noted that Foley initially claimed that it fired Hasan for poor performance but changed its stance when early, positive performance reviews were discovered and produced. They then claimed that Hasan was fired because the firm did not have enough work to keep all associates busy. The Court held that a reasonable jury could have believed both reasons to be pretext. The Court held that the totality of the evidence and possible inferences precluded summary judgment for Foley and remanded to the district court.

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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.

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