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

BROWN v. COUNTY OF COOK (or 25, 2011)

Between 2003 and 2005 (when he retired), Thomas Brown was a sergeant in the Cook County Sheriff’s Office. He was on a list of 16 officers eligible for promotion. Brown never contributed to then-Sheriff Michael Sheahan's campaign, was a Republican (Sheahan was a Democrat), and several years earlier had donated a small amount to Sheahan’s challenger. Brown was never promoted -- only 5 of the 16 were. But Brown filed suit pursuant to § 1983 alleging that he was passed over because of his political affiliation. Judge Coleman (N.D. Ill.) granted summary judgment to the County. Brown appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Posner and Williams affirmed. The Court first noted that the Mount Healthy "motivating factor" analysis remains the appropriate analysis in a First Amendment violation case (citing its Greene decision, released shortly after oral argument). Under that test, Brown had to present evidence that his political affiliation was a motivating factor in not being promoted. The burden would then shift to the County to convince a jury that it was not a "but for" factor. Brown's evidence falls far short of the motivating factor threshold. First, two of the five officers who were promoted had not contributed to Sheahan's campaign. Second, Brown has not controverted the testimony of Sheahan and his deputies that they either did not know Brown or did not know his political affiliation. Third, the fact that Sheahan promoted a female officer who was the subject of a serious misconduct allegation is not relevant to Brown's First Amendment claim. It may have been relevant to a gender discrimination claim, but the district court refused to allow Brown to amend his complaint.

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LINDSEY v. WALGREEN CO. (August 11, 2010)

Katie Lindsey had worked as a Walgreens pharmacist for only a few years when district supervisor Connie Jenkins promoted her to manager. Her management career did not go well or last long. Lindsey admitted to multiple violations of company policy and was demoted to staff pharmacist and transferred to another store. Jenkins warned her that additional violations could result in her discharge. Lindsey claims that she was the target of age-related disparagement at her new assignment, including from her direct supervisor. Shortly after her transfer, Lindsey filled a prescription although she was aware of a potentially serious interaction the drug could have with another medication that the customer was taking. She had to manually override the pharmacy's warning system in order to dispense the drug. Her supervisor reported the incident to Jenkins, who independently reviewed the prescription history, the customer's medical history, and the threat of interaction. Jenkins concluded that Lindsey violated company policy and terminated her employment. Lindsey brought suit under the Age Discrimination in Employment Act (“ADEA”). Judge Leinenweber (N.D. Ill.) granted summary judgment to Walgreens. Lindsey appeals.

In their opinion, Judges Bauer, Ripple, and Kanne affirmed. Lindsey relies principally on the "cat’s paw" theory of recovery, under which the bias of another employee can be attributed to an unbiased decision maker. The Court noted that the record contained evidence of inappropriate age-related remarks by her supervisor but did not include evidence that Jenkins relied on the supervisor or was presented with false or incomplete information. The undisputed evidence is that Jenkins conducted an independent investigation and did not rely solely on information conveyed by the supervisor. Without such evidence, the Court stated that a cat's paw theory could not survive. The Court added that even with such evidence, Lindsey's claim would fail. ADEA requires evidence that age was a determinative factor, not just a motivating factor. Lindsey cannot meet that threshold, given the undisputed evidence that Jenkins fired Lindsey because of her violation of company policy.

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