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

LEWIS v. CHICAGO (May 13, 2011)

In 1995, applicants for Chicago's Fire Department took a written examination. The City divided the applicants into three categories, based on their test scores. Applicants scoring 64 or less were rated not qualified. Applicants scoring 89 or more were rated highly qualified. The middle group was rated qualified but told in January of 1996 that they were not likely to be hired. The City hired applicants on 11 different occasions between May 1996 and November 2001. Each time, it chose at random from the well-qualified pool. An applicant in the qualified pool filed a charge of discrimination in March of 1997. The charge claimed that the 89 cut-off had a disparate impact on African-Americans. Several applicants later filed a class-action. Judge Gottschall (N.D. Ill.) concluded that the charge was timely, notwithstanding the fact that it was filed more than 300 days after qualified applicants were told that they were not likely to be hired. She also rejected the City's business necessity defense and awarded relief to the class. On appeal, the Seventh Circuit reversed, concluding that the charge was not timely. The Supreme Court reversed the Seventh Circuit, concluding that the 300-day clock starts anew in disparate impact litigation whenever the employer makes a hiring decision based on the challenged test. The Supreme Court's decision made the charge timely with respect to each hiring event except the first. The Supreme Court remanded for consideration of: a) whether the City preserved an argument that the charge was untimely with respect to the first hiring event, and b) whether the City preserved an argument that the plaintiffs failed to prove disparate impact arising from any particular use of the test.

In their opinion, Chief Judge Easterbrook and Judges Power and Posner affirmed the original district court opinion as modified to eliminate any relief based on the first hiring event. The Court first concluded that the City preserved both arguments identified by the Supreme Court. Since the City preserved its argument that the charge was untimely with respect to the first hiring event, and since the Supreme Court concluded that it was untimely, the Court reversed the District Court with respect to any relief arising from that event. Although the Court concluded that the City preserved its argument that the plaintiffs failed to prove any particular disparate impact, the Court rejected the argument on its merits. First, the City had conceded that the 89 cut-off had a disparate impact. Because each hiring event was a random selection from the well-qualified pool, each event resulted in the same disparate impact as the list as a whole. The Court rejected the City's argument that since it could treat the original creation of the pool as legal (because of the delayed charge), then each use of the pool was legal. In a disparate impact case, which does not require evidence of discriminatory intent during the charging period, the use of the test can be unlawful even if the original creation of the highly qualified pool was not.

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DETATA v. ROLLPRINT PACKAGING PRODUCTS (January 12, 2011)

Sherry DeTata had a rather short career at Rollprint Packaging Products. She was fired after only eight days -- allegedly a few days after she complained about sexual harassment. She sought advice from Jewell Bracko, the Director of the American Civil Rights Trust. Although Bracko wrote a letter to Rollprint on her behalf, his role and relationship with DeTata is not clear on the record. In any event, she filed a charge with the EEOC in December of 2008. The agency issued a right to sue letter on March 2, 2009. Although the letter was addressed to DeTata, it was sent to Bracko. DeTata alleges that Bracko never received it. It was returned to the EEOC as undeliverable. When DeTata later called the agency to inquire about her case, she was told that the letter had been issued but was also told that her file had been lost. The EEOC eventually resent the letter on June 18. Of course, the letter stated that she had 90 days after her receipt of the notice to file a lawsuit. She filed her suit pro se on August 18. Rollprint moved to dismiss on the grounds that she did not meet the 90-day requirement. Judge Pallmeyer (N.D. Ill) held an evidentiary hearing. Based on DeTata's testimony that her conversation with the EEOC occurred in April, the district court granted Rollprint's motion. It concluded that the 90-day period began running when she had actual oral notice. DeTata hired an attorney and filed an amended complaint, which was also dismissed. On a motion for reconsideration, she explained that she misspoke when she stated that the call was in April and that it was really in May. The court denied the motion. DeTata Appeals.

In their opinion, Chief Judge Easterbrook and Judges Wood and Evans vacated and remanded. The statute requires the agency to notify a party when it dismisses a discrimination charge but it does not elaborate on either the form or content of that notice. The Court noted that it has consistently held that written notice is required and that the 90-day period does not run until actual receipt of the letter. It also noted, however, that cases from both the 6th and the 11th Circuits held that oral notice was sufficient. In both those cases, the court believed that the plaintiff was at least partially at fault for the delayed actual receipt, which is not the case here. But even if oral notice is sufficient, it must be sufficient notice. The Court held that proper notice must include authorization to institute an action within 90 days and advice regarding the institution of the action, if appropriate. The record does not establish that the oral notice received here met that threshold. Rollprint has the burden to show that the case was filed late -- it has not met that burden. The Court also rejected Rollprint's request to affirm the district court on the grounds that the initial notice sent to Bracko was sufficient. The Court noted that the undisputed facts surrounding that notice were insufficient for it to conclude at this stage that it constituted adequate notice.

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EEOC v. AUTOZONE (December 30, 2010)

John Shepherd was a parts sales manager at AutoZone in Macomb, Illinois. His job duties included pitching in to help with routine cleaning assignments, like mopping the floor. A computerized system assigned the jobs randomly. Shepherd had an old back injury, however, that interfered with his ability to perform these physical tasks. His head would swell, he would get headaches, and he would sweat profusely. He was receiving medical treatment. Notwithstanding the treatment, Shepherd took medical leaves on several locations between 2001 and 2003. After one such leave, he asked to be excused from the mop detail based on his physician’s physical restrictions. AutoZone accommodated his request, but only on occasion. When he returned from his 2003 leave, his physician originally recommended no mopping. He modified that restriction when AutoZone advised Shepherd that he could not return to work with the complete restriction. Shepherd suffered another incident while mopping in September of 2003. Again, he took a medical leave. Although he was authorized to return as early as December of 2003 with no greater restrictions than he had in September, AutoZone did not allow his return. Instead, it kept him on involuntary leave until February of 2005 and then dismissed him. The EEOC filed a complaint on his behalf pursuant to the Americans with Disabilities Act. The complaint alleged that AutoZone failed to accommodate Shepherd's disability between March and September 2003, that AutoZone discriminated against him by refusing to allow him to work after 2003, and that AutoZone's dismissal of him was in retaliation for his filing charges. Magistrate Judge Gorman (C.D. Ill.) granted summary judgment to AutoZone on the failure to accommodate claim, concluding that Shepherd was not disabled within the meaning of the statute between March and September 2003. He did not reach the other claims. The EEOC appeals.

In their opinion, Seventh Circuit Judges Manion, Sykes, and Hamilton reversed and remanded. The ADA requires an employer to make "reasonable accommodations" for the mental or physical limitations of a "qualified individual with a disability." A disability under the ADA is a "physical or mental impairment that substantially limits one or more of the major life activities." The Court concluded that a rational jury could find that Shepherd suffered from a disability in 2003. First, self-care is a major life activity and the record is replete with references to Shepherd's inability to care for himself. He needed help dressing, brushing his hair, bathing, tying his shoes, and brushing his teeth. He certainly had an impairment -- but was it substantial. The implementing regulations require a court to consider the nature, severity, duration, and expected continuing impact of an impairment. Here, the record, particularly on summary judgment, shows that Shepherd required help on an almost daily basis and experienced episodes multiple times a week. The Court had no difficulty in concluding that a reasonable jury could conclude that his impairment was substantial. Finally, the Court rejected AutoZone's contention that medical evidence was required to establish a substantial impairment. Neither the statute nor the regulations require it. The nature of the limitations and the detailed testimony were sufficient to establish the impairment and its scope.

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MARION COUNTY CORONER'S OFFICE v. EEOC (July 27, 2010)

Kenneth Ackles, an African-American male, was elected Marion County, Indiana coroner in November 2004. Two deputy coroners -- white male John Linehan and African-American female Alfarena Ballew -- sought the position of chief deputy coroner. The chief deputy coroner is responsible for the day-to-day management of the office. Ackles chose Linehan because he was currently serving in that position on an interim basis. Very early on, Ackles made it clear to Linehan that he wanted to increase the number of African-American employees (particularly deputies) in the office. The relationship between Ackles and Linehan did not go well: Ackles complained that Linehan received a salary increase without his knowledge, Ackles and Linehan disagreed over disciplining Ballew, Ackles instructed Linehan not to report Ballew's tardiness, Ackles told Linehan not to file a police report concerning a missing $3000, and Ackles instructed Linehan not to discipline the janitor who allegedly took the $3000. Finally Linehan filed a hostile work environment complaint with the human resources department. On that very day (November 14), Ackles told Linehan that he was going to make a change in the chief deputy position but that Linehan was to continue performing his duties. Some of those duties were later reassigned but Linehan continued to receive the same salary. A few weeks later (December 2), Linehan received a letter terminating his employment. Although the letter provided no reason for the termination of employment, Ackles testified later that he had "lost confidence and trust" in Linehan. Ackles named Ballew the new permanent chief deputy coroner. Shortly thereafter, Ackles and Ballew canceled an outsourcing contract for autopsies and hired directly several of the company's employees. They hired only African-Americans -- none of the white employees were offered positions. Linehan filed an EEO charge against the coroner's office. He alleged race, sex, and age discrimination as well as retaliation for protected activity. His charge was processed administratively at the EEOC pursuant to the Government Employee Rights Act (GERA). The ALJ found that Ackle's testimony was incredible (among other things), that his reason for terminating Linehan's employment was pretextual, and that Linehan was demoted and fired on account of his race and in retaliation for his complaint. The ALJ awarded front and back pay, attorney's fees, and compensatory damages in the amount of $200,000. The EEOC affirmed. The Coroner's Office petitions for review.

In their opinion, Judges Manion, Evans, and Sykes granted in part, denied in part, vacated in part, and reversed and remanded. The Court noted, under GERA, that it should uphold the decision of the EEOC if it is supported by substantial evidence. Here, the heart of the case is the pretext analysis. Although the Court admitted that this analysis looks only to whether the employer’s explanation was "honestly believed," it nevertheless found a wealth of evidence that the "lost confidence and trust" rationale was pretextual. It cited the testimony concerning the discipline of Ballew, the janitor theft, and Linehan’s raise in support of its conclusion. Next, it considered the issue of the EEOC’s jurisdiction. GERA applies only to policymaking employees chosen by an elected official. The coroner’s office argued that Linehan was not a policymaking employee when he was fired because of the November 14 demotion. The Court rejected the argument. Linehan was certainly stripped of some duties before he was fired but he was never formally demoted, he continued to receive his salary, and the December 2 letter advised that he was being terminated from the position of “Chief Deputy Coroner.” Finally, the Court addressed the $200,000 award of compensatory damages. The Court concluded that the award bore no rational relation to the very scant evidence of Linehan’s suffering and was excessive compared to similar cases. It offered a remittitur of $20,000 or a new hearing on damages.

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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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 PRINCE v. STEWART (September 2, 2009)

The Chicago Teachers Union fired Earl Prince from his job. Prince filed an administrative discrimination charge. He then brought an action pro se for employment discrimination under Title VII before he received any response from the Illinois Department of Human Rights or the EEOC. The district court dismissed the complaint because Prince had not yet received a right-to-sue letter. Several months later, after Prince had received the letter, the district court granted his motion to reopen the case. The court vacated the order, however, a few days later at Prince's request. Months later, on the last day to sue, Prince again moved to reopen the case. This time, the judge turned him down -- and it was too late to file a new complaint. Prince appeals.

In their opinion, Judges Posner, Coffey and Manion reversed and remanded. The Court recognized Prince's mistake when he followed up the first order reopening his case with a request to reinstate the dismissal. He was simply going to be out of the jurisdiction for a short time and need not have worried about his temporary unavailability. However, the Court also recognized that no one was prejudiced by his mistake. If the second motion to reopen was filed in a timely fashion, the Court could not see any reason why it should not have been granted. The Court concluded that the district court’s lulling of the pro se litigant into believing that he did not have to refile his complaint amounted to equitable tolling.

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NATIONAL CASUALTY COMPANY v. FORGE INDUSTRIAL STAFFING INC. (June 3, 2009)

Forge Industrial Staffing, Inc. is an employee staffing company. It has insurance coverage through National Casualty Company (NCC) that insurers it, among other things, from intentionally discriminating against its employees. When several of Forge's former employees brought anti-discrimination charges before the EEOC, NCC agreed to defend Forge but reserved the right to deny coverage later. Given NCC's reservation of rights and the exclusion in the policy of coverage for punitive damages or claims arising from Forge’s intentional or reckless disregard of the law, Forge requested independent counsel. NCC refused. After Forge hired its own counsel, NCC brought a declaratory judgment action to resolve the issue. The district court found no actual conflict and concluded that NCC did not have to pay for Forge’s own counsel. Forge appeals.

In their opinion, Judges Cudahy, Williams and Tinder affirmed. The Court noted that Illinois law provides a broad duty to defend as well as a right to direct the defense. Only if an actual conflict exists does the insured have a right to have the insurer pay for independent counsel. The Court looked to the allegations of the complaint and the terms of the policy to determine whether an actual conflict existed. An actual conflict exists if the underlying complaint contains two mutually exclusive theories of liability, only one of which is covered by the policy. Here, the Court held that neither the possibility of punitive damages in future litigation nor the policy exclusion of willful conduct created an actual conflict. The possibility of punitive damages was too speculative. With respect to the policy exclusion, there were no allegations of willful conduct and there were no allegations which would preclude coverage if resolved a certain way. Thus, the requirements for independent counsel were not met.

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TEAL v. POTTER (March 20, 2009)

Joanne Teal had been employed by the U. S. Postal Service for almost 20 years when, during an altercation, she struck her supervisor's hand. Although the Postal Service attempted to discharge her, a grievance arbitrator determined that she should be suspended instead. Before she could be reinstated, however, Teal had to demonstrate her physical and mental fitness to resume her duties. For over eight months, the Postal Service went to great lengths to accommodate Teal's needs in scheduling the examinations. Finally, in July of 2003, the Postal Service advised Teal that they were terminating her employment. In the meantime, Teal filed an EEOC complaint in January of 2003, complaining that the original termination of her employment was discriminatory. Teal sued the Postal Service pursuant to the Rehabilitation Act. The district court concluded that she had failed to exhaust her administrative remedies and granted summary judgment to the Postal Service.

In their opinion, Judges Posner, Rovner and Evans vacated and remanded. The Court that the Rehabilitation Act, like Title VII of the Civil Rights Act, requires a plaintiff to exhaust administrative remedies before bringing an action. Additionally, a plaintiff cannot complain of conduct that was not the subject of an EEOC charge. Here, Teal's EEOC charge complained of discrimination prior to her original discharge in March of 2002. The district court complaint, on the other hand, complains of her July 2003 dismissal. The 2003 dismissal was based on Teal's noncompliance with the conditions of her reinstatement, not the incident with her supervisor. The Court concluded that Teal had failed to exhaust her administrative remedies. The Court remanded the case for a dismissal without prejudice.

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EEOC v. LEE’S LOG CABIN (February 2, 2009)

Korrin Stewart was diagnosed as HIV-positive when she was just fourteen years old. Shortly thereafter, she learned that it had actually developed into AIDS. At the age of eighteen, she applied for a wait-staff position at Lee’s Log Cabin (“Lee’s”). Lee’s found out that Stewart was HIV+. In fact, the manager wrote the notation “HIV+” on her application. The EEOC filed suit when Lee’s did not hire Stewart. Shortly before trial, the EEOC presented affidavits from Stewart and her doctors describing how AIDS affected her daily activities. The district court rejected the affidavits because the EEOC had never pleaded the presence of AIDS and, the court found, AIDS and HIV-positive were not synonymous. The court granted summary judgment for Lee’s. The panel of the Seventh Circuit affirmed. The Court thought that the EEOC “complicated the inquiry” by attempting to refashion its claim as AIDS claim late in the case. The Court called it a “major alteration” of the EEOC’s case. Relying on significant symptomatic differences at different stages of the disease, the Court thought it was highly relevant whether Stewart was HIV-positive or had AIDS. The EEOC sought rehearing and rehearing en banc.

In their opinion, the full Court denied the petition.

Judge Williams, joined by Judges Rovner, Wood and Evans dissented. Judge Williams echoed the content of her dissent to the panel opinion. She thought that the majority imposed a higher pleading threshold on individuals with complex, multi-level diseases. Such a requirement is inconsistent with the notice pleading requirement. The exact stage of a disease, including HIV, is an irrelevant detail, and should not be a pleading requirement. Judge Williams also disagreed with the majority’s alternate ground – that an employer has to have specific knowledge of how far an employee’s disability has advanced to be liable. It should be enough if the employer knows about the existence of the impairment, even if unaware of its specific stage.

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EEOC v. WATKINS MOTOR LINES (January 23, 2009)

Watkins Motor Lines (“Watkins”) experienced three episodes of employee-on-employee murder or attempted murder. It decided it would no longer employ persons who had been convicted of a crime of violence. A few months after Watkins adopted its new policy, Lyndon Jackson applied for a job. Jackson had a criminal record. Watkins declined to hire him for that reason. Jackson filed a complaint with the EEOC. The EEOC initiated an investigation. It sought to determine whether the policy had a disparate impact on minorities and, if so, whether it was a business necessity. In April 2005, the EEOC issued a subpoena to Watkins. Watkins and Jackson reached a settlement in January 2006, contingent on the EEOC abandoning the investigation. Jackson withdrew his charge – but the EEOC pressed on. It sought to enforce the subpoena in the district court. The court dismissed the EEOC’s action for lack of subject-matter jurisdiction. The court concluded that no valid charge was pending because the EEOC should have allowed Jackson to settle and withdraw his charge. The EEOC appeals.

In their opinion, Chief Judge Easterbrook and Judges Evans and Tinder reversed and remanded. Once an EEOC charge is filed, the agency determines the direction of the investigation. A charge can be withdrawn only with the consent of the agency and only when it will not defeat the purposes of Title VII. Here, the Court noted that a valid charge was filed and that the agency sought to continue the investigation even after Jackson wanted to withdraw. The agency did not commit error when it decided to continue the investigation of Watkins’ employment policy for the benefit of other applicants. The Court analogized the situation to those in which a representative class plaintiff settles with the defendants or in which settling parties want to vacate earlier judicial decisions in their case. The Supreme Court has rejected those arguments in Deposit Guaranty National Bank v. Roper, United States Parole Commission v. Geraghty, and U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership. Watkins’ argument that forcing the EEOC to accept Jackson’s withdrawal will facilitate his settlement ignores the interests of the unrepresented persons. Watkins and Jackson are free to settle – and the EEOC is free to continue its investigation.

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LLOYD v. SWIFTY TRANSPORTATION (January 9, 2009)

Gerald Lloyd is a truck driver. Unfortunately, Lloyd lost much of his left leg in a motorcycle accident. Fortunately, he adapted fairly well to a prosthetic leg. He does experience some difficulties with the lining and develops occasional infections. He was able to get a limb waiver from the State of Indiana to return to his career as a truck driver. Swifty Transportation (“Swifty”) hired Lloyd as a night-shift driver in June 2008. Swifty delivers gasoline in its fleet of twelve trucks. Each truck has one lead driver on the day shift and two night-shift drivers. The lead drivers are generally paid more and have some additional responsibilities. In 2001, Swifty filled a lead-driver position without interviewing Lloyd, even though Lloyd had expressed his interest in the job. Lloyd filed an EEOC charge, alleging that Swifty denied him the job because of his disability. Swifty and Lloyd resolved the charge. Lloyd agreed not to bring suit. Swifty agreed to notify and interview Lloyd for any open lead-driver position. On three later occasions, Swifty filled open lead-driver positions with other applicants. In June 2003, they interviewed Lloyd but hired a more experienced driver. Lloyd filed a second EEOC complaint. In January 2004, Swifty again filed a lead driver position with a more experienced driver, this time without interviewing Lloyd. Lloyd was disciplined for the first time in January 2005 – for loading gasoline from the wrong supplier. Lloyd filed his third EEOC complaint. Subsequent to his last EEOC complaint, Lloyd was disciplined twice more. In May 2005, Lloyd resigned. He filed a complaint, alleging that Swifty a) failed to promote him, disciplined him, and paid him less than others, all on account of his disability and in retaliation for his EEOC charges and taking FMLA leave, b) created a hostile work environment, and c) breached the settlement agreement by not interviewing him for every job opening. The court granted summary judgment to Swifty.

In their opinion, Judges Cudahy, Ripple and Rovner affirmed. The Court concurred with the district court’s holding that Lloyd’s claims regarding the 2001 and 2003 openings were time-barred and that his FMLA claims were barred because Lloyd did not establish that Swifty had more than fifty employees. With respect to the ADA promotion claims, the Court noted that Lloyd proceeded under the “indirect” method of proof. That requires proof that a) he is disabled, b) he was meeting Swifty’s legitimate expectations, c) he suffered adverse employment action, and d) similarly situated employees without a disability were treated more favorably. The Court concluded that Lloyd never even established that he was a “qualified individual” under the ADA – i.e., that he was actually qualified to be a lead driver. Swifty established that a lead driver needed mechanical knowledge and a positive attitude. The uncontradicted testimony was that Lloyd had a negative attitude. With respect to the claims arising from Swifty’s discipline of Lloyd, the Court stated that the written reprimand was not an adverse employment action, the suspension came after and was unrelated to his final EEOC charge, and Lloyd had no personal knowledge that similarly situated drivers were not disciplined. The Court also affirmed the grant of summary judgment on Lloyd’s lower pay, hostile work environment, and breach of contract claims.

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ANDONISSAMY v. HEWLETT-PACKARD CO. (November 7, 2008)

Sanjay Andonissamy, a French citizen of Indian ancestry, began his employment with Hewlett-Packard (“HP”) in April of 2001. He was in the country on an HP-sponsored H-1B visa. [The following is Andonissamy’s version of the story – HP’s version differs greatly] After the events of September 11, 2001, Ken Smith, Andonissamy’s supervisor, began to make derogatory racial, ethnic, and nationalist remarks to and about Andonissamy. Andonissamy frequently complained to Smith’s supervisor. Smith placed Andonissamy on remedial performance plans, allegedly in retaliation for Andonissamy’s complaints about Smith. Andonissamy began taking medication for anxiety and depression in 2002. He was being treated, but his physician never placed him on any restricted work schedule. Andonissamy’s condition worsened in early 2003 after the deaths of his brother and nephew. In May of 2003, Smith made a false report to the company implicating Andonissamy as a security threat. HP fired Andonissamy on June 23, 2003. On September 16, Andonissamy filed an EEOC complaint alleging national origin discrimination. The EEOC dismissed his complaint and issued a right to sue letter. Andonissamy filed a complaint in federal court in April of 2004. In addition to his complaints of national origin discrimination under Title VII and 42 U.S.C. § 1981, Andonissamy added a Family and Medical Leave Act count. In November of 2005, Andonissamy added Smith as a defendant on an assault count. The district court dismissed Smith and granted summary judgment to HP. Andonissamy appeals.

In their opinion, Judges Flaum, Williams, and Sykes affirmed. The Court first addressed Andonissamy’s Title VII hostile work environment claim. In order to survive summary judgment, Andonissamy had to show that a) he was subjected to unwelcome harassment, b) the harassment was based on his national origin, c) it was severe and pervasive enough to amount to a hostile and abusive environment, and d) there exists a basis for employer liability. The Court did not address the first three elements because it found no basis for employer liability. An employer can be vicariously liable for the conduct of a supervisor but can only be liable for the conduct of a co-worker if the company was negligent in discovering or remedying the harassment. A supervisor for purposes of Title VII is the person with the ability to affect the terms and conditions of the plaintiff’s employment. Smith, although he was Andonissamy’s “supervisor” in the sense that he directed his performance, was not a Title VII supervisor. There was no evidence that Smith was able "to hire, fire, promote, demote, discipline or transfer" Andonissamy. In order to hold HP liable for the acts of Smith as co-worker, Andonissamy had to establish that he complained or that the discrimination was so pervasive that HP’s knowledge could be inferred. Although Andonissamy did complain to Smith’s supervisor, he did not specifically complain about national origin discrimination. The Court agreed with the district court that Andonissamy therefore did not make out a Title VII claim. With respect to his companion § 1981 claim, the Court stated that a plaintiff can proceed under the direct or indirect method. The direct method requires evidence that an adverse employment action was based on the plaintiff's national origin. The Court found no such evidence in the record. Under the indirect method, a plaintiff must establish, among other elements, that he was meeting his employer’s legitimate performance expectations. The Court noted that the record contained numerous references to Andonissamy’s performance problems. The Court concluded that Andonissamy was therefore unable to establish a § 1981 claim under either method.

Andonissamy’s retaliation claim could also be established under the direct or indirect method. The indirect method for retaliation, like discrimination, contains an element that Andonissamy was meeting HP’s performance obligations. The Court rejected Andonissamy’s indirect method for establishing his retaliation claim for the same reason it rejected it for his discrimination claim. Under the direct method, Andonissamy had to establish that: a) he engaged in statutorily protected activity, b) his employer took an adverse employment action, and c) there was a causal connection between the two. The Court held that his complaints to HP did not include complaints of national origin discrimination. He was thus unable to establish the statutorily protected activity element. The Court concluded that he failed to establish a retaliation claim under either method. With respect to the FMLA count, the Court noted that Andonissamy never asked for any leave and did not exhibit any dramatic changes in behavior that would have put HP on notice of a need for leave. The Court agreed with the district court that Andonissamy failed to meet his burden under the FMLA.

Finally, the Court addressed Andonissamy’s assault claim against Smith. The assault claim was added to the case after the statute of limitations on the claim had expired. Andonissamy argued that the claim related back to the original claim and was thus permissible under FRCP 15(c). The Court affirmed the dismissal, stating that a claim against a new defendant relates back only when there is a case of mistaken identity. Since Smith supervised Andonissamy for years, that cannot be the case here.

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CHAUDHRY v. NUCOR STEEL  (October 15, 2008)

Subhash Chaudhry has worked at Nucor, which manufactures rolled steel sheets, since 1988. In 2007, he worked as a Quality Control Inspector (“QCI”). [The following are allegations of the complaint, taken as true.] His responsibilities included inspecting the rolled steel sheets produced at the temper mill. Nucor increased the pay grades of some QCIs in 2003, but not those, like Chaudhry, who worked at the temper mill. Chaudhry’s complaints fell on deaf ears. Chaudhry complained that some of his co-workers made fun of him and called him names. Those complaints were ignored as well. Chaudhry also tried to improve his salary through a program in which QCIs who attended a training session and made four customer visits in a year could qualify for a pay grade increase. Chaudhry frequently asked for opportunities to make a customer visit.  Nucor controlled the visits and never gave him such an opportunity. On July 28, 2006, Chaudhry filed a charge of discrimination with the EEOC. He alleged that Nucor’s failure to give him the pay raise that they gave other QCIs amounted to discrimination against him on account of his race, religion, and national origin in violation of Title VII of the Civil Rights Act of 1964. He further stated that Nucor had prevented him from making customer visits and qualifying for a pay grade increase. In a later letter to the EEOC, he complained of the harassment. On February 7, 2007, Chaudhry filed suit alleging that Nucor violated Title VII by: a) raising the salaries of other QCIs whose jobs required less effort, b) informing other QCIs of customer visit opportunities, and c) failing to control the employees’ harassment of him. Nucor initially answered the complaint. A few months later, however, the Supreme Court decided Ledbetter. Nucor, relying on Ledbetter, asked the district court to dismiss the complaint. The court agreed and dismissed the pay discrimination claim. It also dismissed the harassment claim, holding that it was not a part of the EEOC charge and Chaudhry’s letter did not expand the scope of the charge. The court then dismissed the case and entered final judgment (the same day) without addressing the customer visit charge. Chaudhry attempted to amend his complaint to add a § 1981 claim. Nucor objected because judgment had already been entered. In his reply, Chaudhry asked the court to treat his motion as a motion to amend the judgment. The court apparently did so but treated the date of the reply brief as the date of the motion and denied it as untimely. Chaudhry appeals.

In their opinion, Judges Bauer, Flaum, and Williams reversed and remanded. The Court began its analysis with Title VII and Ledbetter. Before filing a Title VII complaint, an employee must file a charge with the EEOC. The charge must be filed within 300 days of the alleged unlawful employment practice. The alleged unlawful employment practice, under Ledbetter, is the single, discrete unlawful act at issue, even if the effects of the act continue with each paycheck. The Court agreed with the conclusion of the district court that the discrete act with respect to the raise claim was Nucor’s June, 2003 decision to give raises to the other QCIs. Since Chaudhry did not file his charge within 300 days of that date, the district court correctly dismissed this claim.

With respect to the customer visit claim, however, the same analysis produced a different result . The Court observed that Chaudhry’s EEOC charge and complaint alleges that Nucor denied him a raise every year by preventing him from participating in customer visits. Each of those decisions was a new violation. Since Chaudhry filed his charge within 300 days of the last of those acts, his customer visit claim is not time-barred by Ledbetter. The Court also rejected Nucor’s claim that its alleged failure to notify Chaudhry of a customer visit opportunity was not a materially adverse employment decision. The failure to notify deprived Chaudhry of compensation which he would have earned, at least as the complaint reads, but for the failure.

The Court commented on the pleading amendment dispute as well, although the remand eliminated any need to decide the issue. The Court criticized the district court, referring to its actions in entering judgment on the same day it granted the motion to dismiss as “unorthodox” and its handling of the motion to reopen as “hyper-technical.”

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