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

HILL v. POTTER (August 30, 2010)

Carla Hill has been an employee of the United States Postal Service in Hazel Crest, Illinois for several years. In the early 2000s, she filed a number of EEO complaints against her supervisors for discrimination. In late 2002, Hill hurt her back in a work related injury and went on "limited duty" status. Limited duty status employees are paid for a full day's work even if no qualifying work is available. Just as her limited duty status period was about to end, Hill claimed that she reinjured her back and reapplied. Her supervisor, Patrick Kavanaugh, wrote a letter to Dale Schultz of the Office of Workers' Compensation Programs. He communicated his belief that Hill’s injury was not as serious as she claimed. Schultz put Hill on "light duty" status. Light duty status employees are not guaranteed a full day's pay if qualifying work is not available. Hill lost 618 hours of pay while on light duty status -- even while other employees worked in excess of 800 hours of overtime. Hill, who was a letter carrier, also wanted a position as a window clerk. She submitted written applications in 2000 and 2003 and again documented her interest in 2004. Clerk positions became available in 2005, 2006, and 2007. She did not submit written applications at any of those times. On each of those occasions, the Postal Service offered the job to someone who had submitted a written application. Hill brought an action against the Postmaster General, alleging that the lost hours and failure to promote were in retaliation for her protected activities (her EEO complaints). Judge Coar (ND. Ill.) granted summary judgment to the defendant. Hill appeals.

In their opinion, Judges Flaum, Kanne, and Evans affirmed. The Court noted that Hill proceeded under the indirect method of proof -- which requires proof of a statutorily protected activity, a materially adverse job action, satisfactory job performance, and treatment worse than a similarly situated employee. The elements at issue here are whether there was an adverse job action (on the reduction in hours claim) and whether Hill was treated differently from similarly situated employees (on the failure to promote claim). The Court first addressed adverse job action. Although a reduction in hours can be an adverse job action, the reduction here came as a result of her light duty status. It does not amount to an adverse job action without other evidence. The Court rejected Hill's claim that Kavanaugh's letter to Schultz somehow imputed a retaliatory motive to Schultz under a "cat's paw" theory. There was no evidence in the record that the letter had any effect on Schultz -- let alone a dispositive one. Therefore, Hill's light duty assignment itself was not an adverse job action. The Court also concluded that sending her home without pay was also not an adverse job action. Although there was evidence in the record that other employees worked overtime, there was no evidence in the record that that overtime work fell within her work performance limitations. Finally, the Court rejected Hill's failure to promote theory of liability. In order to prevail, she had to establish that she properly applied for the promotion. The Postal Service presented evidence that its unofficial policy required an application in writing -- even though that unofficial policy was inconsistent with the written policy and the Postal Service presented no documentary evidence that supported it. Nevertheless, the Court concluded that Hill had not met her burden of establishing pretext. She failed to come forward with any evidence from which an inference could be drawn that the Postal Service evidence was not credible.

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 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.

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JONES V. CITY OF SPRINGFIELD (January 26, 2009)

The police department of Springfield (the “City”) uses a promotion eligibility list to determine which officers can be promoted to sergeant. The list takes into account written and oral test scores, seniority and military service. The list is typically updated every two years but its life can be extended by a year. A list was due to be updated in October 2003 but was extended a year. At least one reason for the extension was to help one particular black officer (Ralph Harris) obtain a promotion. A few days before the new expiration date, the top three officers on the list were promoted, including Harris. Alan Jones, a white male, was fourth on the list. Once the new list was created, he dropped to twelfth place. He was not promoted until December 2006. Jones sued the City, claiming a violation of Title VII of the Civil Rights Act of 1964. He alleged that he was passed over for promotion because of his race. Jones conceded that there were no open positions but asserts that the City knew there would be a vacancy in a very short time and could have promoted him early – and would have promoted him early if he were black. The district court granted summary judgment to the City. Jones appeals.

In their opinion, Judges Bauer, Posner and Manion affirmed. The Court noted that Jones elected to proceed under both the direct and indirect methods of proof. Under the direct method, the plaintiff must prove that the adverse employment action was taken based on a discriminatory reason. The Court rejected Jones’ argument that he and Harris were similarly situated and Harris was treated more favorably. Since Harris was ranked higher on the list, they were not similarly situated. The Court also rejected Jones’ argument that the jury could have found that the City would have promoted him early had he been black. The Court referred to the absence of any evidence regarding the early promotion practice other than that the practice existed. Under the indirect method, Jones must show that there was an open position. The Court criticized the district court for treating the availability of an open position as part of a pretext argument. The Court emphasized that a plaintiff must make a prima facie case before any pretext argument even arises – and a prima facie case requires proof of an open position. Jones’ inability to show that an open position existed precludes him from establishing a prima facie case.

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