Court Does Not Impute Subordinate's Alleged Retaliatory Motive To Decision-Maker
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.
Eva Leavell and her family own or lease hundreds of oil wells in southern Illinois. Most of the permits are in Ms. Leavell’s name -- but at least one is in the name of her husband, Daniel. Beginning in the year 2000 and continuing for several years, the 
Robert McBride was a locomotive engineer for CSX Transportation. After several years as a long-distance engineer, McBride expressed an interest to transfer to a job where he would work more regular hours with fewer nights away from home. In April 2004, he went on a qualifying run with a supervising engineer. Much of the ten-hour shaft involved switching, the process of adding and dropping individual cars from the locomotive. The switching process requires heavy use of the manual brakes. Toward the end of his shift, while operating the brakes, McBride experienced extreme pain in his hand. He has since undergone two surgeries and physical therapy but still experiences pain and numbness. He filed an action for negligence under the Federal Employers' Liability Act. At trial, McBride offered an instruction on causation that would instruct the jury that defendant’s negligence had to play "a part - no matter how small" in bringing about the injury. CSX offered an instruction that included a requirement that defendant’s negligence be a "proximate cause" of the injury. The court used the McBride instruction. The jury found in McBride's favor. CSX appeals.
Jason Bell, 
Angie Ortega was the target of removal proceedings brought by the government in 2001. She asserted as a defense in those proceedings that she was a United States national. While the proceeding was pending, she filed an application for citizenship with the Immigration and Naturalization Service. When her application was denied, she appealed to the Office of Administrative Appeals (AAO). Meanwhile, the Immigration Judge in the removal proceedings dismissed with prejudice, concluding that she had in fact proven her citizenship. Months later, the AAO denied her appeal. She filed a motion to reopen and to reconsider, in which she referred to the ruling of the Immigration Judge. The AAO, four years later, denied her motion. It concluded that her motion was untimely in that it had been filed with the wrong office. It also concluded that it was at best a motion to reconsider rather than a motion to reopen. Although the regulations permit consideration of untimely motions to reopen upon a showing of reasonableness, they do not allow such discretion for a motion to reconsider. Ortega brought an action in federal court seeking a declaration of nationality under 8 U.S.C. §1503(a). On the government's motion, the district court dismissed the action on the ground that her citizenship arose in connection with her removal proceeding and her claim therefore fell within the §1503(a) exclusion. Ortega appeals..jpg)
Safeco Insurance Co. of America ("SICA") and Safeco Insurance Co. Of Illinois ("SICI") are subsidiaries of Safeco Corp. and provide automobile insurance. Although SICI adjusts its own claims only, SICA adjusts its claims and the claims of several other companies owned by Safeco. In 2005, Dr. F. Ryan Bemis, a chiropractor, filed a class action in Illinois state court against SICI and SICA. The complaint included causes of action based on breach of contract, consumer fraud statutes and unjust enrichment. It alleged a scheme by SICA and SICI to reduce medical payments coverage through its use of particular audit software. The Class Action Fairness Act of 2005 (“CAFA”) became effective seven days after the complaint was filed. Bemis later dismissed the statutory and unjust enrichment counts and amended the breach of contract count. In 2009, the state court granted class certification to a class consisting of all persons insured by Safeco insurance companies in 14 different states who had their claims adjusted by the specific software in question. Safeco removed the case to federal court, asserting that the class definition amounted to the commencement of a new action for CAFA purposes. The district court remanded, concluding that the class definition related back to the original complaint. Safeco sought leave to appeal..jpg)
Christine Muro held a Target "Guest Card" for a few years. In late 1999, she paid off the balance and requested that her account be closed. In 2004, Target sent her an unsolicited Visa Card. Muro never used, or even activated, the card. She brought an action under §§ 1637 and 1642 of the Truth in Lending Act (“TILA”). With respect to § 1642, which prohibits the unsolicited issuance of a credit card, the court denied class certification. It concluded that Muro's claims were not typical of the claims of most of the proposed class (because most of the class members had an open “Guest Card” account) and that she had failed to establish numerosity with respect to the claims for which her claims were typical. Muro settled her individual § 1642 claim, reserving the right to appeal the denial of class certification. The court granted summary judgment to Target and denied class certification on the § 1637 claims. Muro appeals.
Triumph Partnerships purchases defaulted debt. Its sister company, Triumph Asset Services ("TAS"), is a debt collection agency. In early 2006, TAS sent letters out to a number of individuals who owed debts purchased by Triumph. The letter notified the recipient that Triumph had purchased the debt and that TAS was attempting to collect it. Sent with the notice was a separate document from Triumph stating that it collected and could share certain information about the debtor. It also provided an opportunity for the debtor to “opt out,” or instruct Triumph not to share certain information. Alice Ruth was one of the recipients of the letter. Ruth brought a class action against Triumph and TAS, alleging that the mailing violated the Fair Debt Collection Practices Act ("FDCPA") in that it made a false statement in connection with the collection of a debt and threatened to take illegal action. The district court granted summary judgment to the defendants, concluding that Ruth was required to present extrinsic evidence to prove that an unsophisticated debtor would consider the notice a communication in connection with the collection of a debt and would view it as a threat to take illegal action. Ruth appeals.
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.
Brian French and his siblings (“French”) are the beneficiaries of the trust set up by their father. Wachovia Bank (the “Bank”) is the trustee of the French Trust. French sued the bank, alleging in Count I that the Bank breached its duties and in Count II that the bank provided false information with respect to life insurance policies. On the Bank's motion to compel arbitration, the court determined that only Count II was subject to arbitration. The court ordered the parties to arbitrate Count II and stayed proceedings with respect to Count I. French moved to amend the complaint to dismiss Count II and to lift the stay with respect to Count I. The court granted the motion on October 23. However, in response to an inquiry from the Bank, French denied that they had abandoned the Count II claims. On December 21, the Bank reasserted its request to compel arbitration on Count II and to stay Count I. The court denied the motion. The Bank appeals.
In 2004, a state court entered a dissolution order in the divorce proceedings of Frank Gallo and Gillian Emery. Gallo had a bankruptcy proceeding pending at the time. The divorce court awarded a Sanibel Island, Florida property to Emery but required her to pay $125,000 to the bankruptcy trustee. Gallo transferred his interest in the Sanibel Island property to Emery but Emery made no payments to the trustee. Gallo filed a lis pendens against the Sanibel Island property. Several months later, Emery obtained an order quieting title and sold the property for $490,000. In a subsequent Gallo bankruptcy proceeding, Emery filed a proof of claim for slander of title, alleging that she lost an opportunity to sell the Sanibel Island property because of the lis pendens notice. The bankruptcy court denied Emery's proof of claim and issued an order directing her to pay the amount of the state court dissolution order. Emery appeals.
Several police officers, after a report of his involvement in a minor disturbance, arrested Charles Stainback. They asked Stainback to put his hands behind his back. Instead of doing so, he asked that he not be handcuffed. All he said was that he thought it would hurt. The officers handcuffed him anyway. Stainback was handcuffed in a police vehicle for approximately 20 minutes. During that time, he complained that the handcuffs were hurting him and asked for them to be removed. Stainback alleges that he required medical treatment as a result of the episode. He sued the officers, alleging the use of excessive force. The lower court concluded that the officers were entitled to qualified immunity because the amount of force was reasonable under the circumstances. The court granted summary judgment to the police officers. Stainback appeals.
In 1994, a student sued East Moline School District (the "District"). The District made a claim against the Illinois School District Agency (the "Agency"), an Illinois school cooperative formed for the purpose of providing insurance to its members. The Agency's third-party administrator, the Martin Boyer Company (“MBC”), processed and allowed the claim. The Agency paid for the District's defense until a new third-party administrator, two years later, determined that the claim was not covered. The District settled the student's lawsuit and sued the Agency to recover its defense costs. The District alleged a) a violation of the Illinois Insurance Code, b) waiver, and c) estoppel. The Agency prevailed. The Agency then sued MBC to recover the amount it had paid the district in defense costs due to MBC’s initial erroneous determination of coverage. The Agency also made a claim for the same injury under an errors and omissions policy issued by Pacific Insurance Company. The Agency sued when Pacific denied the claim, seeking both the costs of defending the District's lawsuit and the cost of pursuing MBC for reimbursement. The court ordered Pacific to reimburse the Agency approximately $100,000 for defending against the District’s Illinois Insurance Code claim but not for defending against the waiver and estoppel claims. It also granted summary judgment to Pacific on the MBC claim. On a first appeal, the Seventh Circuit vacated the summary judgment on estoppel and remanded for the court to consider whether the estoppel claim was equitable, which was covered, or contractual, which was not covered. On remand, the court concluded that the District raised both equitable and contractual estoppel. The Agency was therefore entitled to reimbursement on the estoppel claim. At about the same time, the Agency prevailed in its case against MBC and received over $700,000. On Pacific's motion, the court concluded that the judgment fully compensated the Agency for its losses and granted summary judgment to Pacific. The Agency appeals. Pacific then moved to amend the court's initial $100,000 award on the ground that the first appeal somehow vacated that award. The court granted the motion. The Agency appeals.
Several guests at the Chicago Sheraton Hotel were injured while on 
Marsalette Winsley, an African-American woman, worked for the Cook County Department of Public Health. In December 2003, she was a Family Case Manager, which required her to drive to her clients' homes. In early 2004, she was injured in a car accident. After a leave of absence, she was approved to return to work part-time, conditioned on minimal driving. For more than three years, the County attempted to accommodate her limitations, assigning and reassigning her to different tasks at different locations. Winsley took several more leaves of absence during that time. Her supervisors evaluated her poorly during those years for her problems with attendance and timeliness. Eventually, in May of 2007, Winsley's supervisor asked for improvement in her timeliness and absenteeism rates. Winsley quit her job without notice and never returned. She filed an action alleging that the County violated the Americans with Disabilities Act ("ADA") and Title VII and engaged in retaliation. The district court granted summary judgment to the County on all counts. Winsley appeals.
Ronald Smart’s non-union electrical company was awarded a contract to perform electrical work at a sports complex. He claims that Local 702 threatened the owner of the sports complex and coerced him to replace Smart’s company with union electricians. Smart brought an action against the local under the Illinois Antitrust Act. He also brought state law unwarranted prosecution and malpractice claims against the union’s lawyers (claims arising from earlier legal actions against Smart by the union). The district court dismissed the antitrust claim, concluding that it was preempted by the National Labor Relations Act. It also dismissed the state law claims, holding that the malpractice claim could not be brought against a lawyer who had never represented Smart and that the unwarranted prosecution claim required that he prevailed in the underlying litigation (he did not). Smart appeals.jpg)
Kevin Cracco was a truck terminal manager at Vitran Express. In late 2006, he was hospitalized with a serious health condition and went on FMLA leave. Cracco's duties were performed by other employees during his absence. The replacement employees discovered a host of problem’s during Cracco’s absence: damaged freight, safety lapses and general disorganization. Vitran's further investigation also discovered falsified freight records. The company terminated Cracco's employment upon his return from leave. Cracco filed suit, alleging that the company violated his FMLA rights. The district court entered a default order when Vitran failed to respond. The court later vacated the default and granted summary judgment to Vitran. Cracco appeals.
Lisa Leger suffered from osteoarthritis for years. Prior to 1990, she underwent three different arthroscopic procedures but was able to hold a job and engage in a rehabilitative exercise program. However, in 1990, she stopped working for WGN-TV and went on short-term disability. She began receiving long-term disability benefits in December 1990. She continued to receive benefits through 2005. During that time, she continued to have pain and problems with her knees and underwent multiple additional surgeries. The plan administrator reviewed her benefits in 2005 and requested updated information. Her treating physician advised that she was essentially unable to walk. The plan administrator's medical review concluded that she had significant osteoarthritis but that she was not precluded from sedentary work. A vocational rehabilitation consultant identified several employment positions for which she was qualified. The plan administrator therefore terminated her benefits in October of 2005. Leger appealed and provided additional medical information. The plan administrator arranged for another review of the file. That review highlighted some inconsistencies in her records. For example, the records indicated that she could not sit for more than 30 minutes at a time but she nevertheless was wheelchair bound. The plan administrator upheld the decision to terminate her benefits. Leger brought an action pursuant to ERISA’s section 1132 (a)(1)(b) to reinstate her benefits. The lower court granted summary judgment to the plan, stating that it advanced a reasonable explanation for its decision to terminate the benefits. Leger appeals.
Eugene Fischer is in prison. In a proceeding in the district court, the Government moved to renew a forfeiture judgment against him. The court granted the Government’s request by an order entered on November 5, 2008. Fischer asserts that he never was served with a copy of the order and only discovered its existence when he received a copy of the docket sheet in January 2009. His time for appeal having long ago run, Fischer filed a petition for mandamus seeking permission to file a notice of appeal from the November order.
In 1992, Amoco Chemical Company (“Amoco”) and Catalyst Resources, Inc. (“CRI”) entered into a long-term supply agreement for polypropylene catalyst. CRI agreed to build a facility for production of the catalyst – Amoco agreed to fund it over time with its purchase commitments. The contract was quite long and detailed. Article 17 was a Right of First Refusal – it provided that neither CRI nor its parent could dispose of CRI or the plant without first giving Amoco a right to purchase. Article 17 did not apply to a disposition to another company wholly owned by CRI’s parent. Article 19 dealt with assignments. It provided that neither party could assign the agreement without the consent of the other. Article 19 permitted an assignment, without consent, by Amoco to any company owned 50% or more by its parent and by CRI to any company owned 100% by its parent. Both companies underwent significant changes over the following fifteen years. Among the many changes on the Amoco side was its sale by its then parent in 2005 to INEOS US Intermediate Holding Company. The company was renamed INEOS Polymers (“INEOS”). Meanwhile, on the CRI side, the assets were sold in 1993 to Mallinckrodt and sold again in 1998 to Engelhard. On both occasions, Amoco waived its Article 17 right of first refusal. In 2006, BASF acquired Engelhard and renamed it BASF Catalysts (“BASF”). INEOS advised BASF and Engelhard that the transaction triggered its Article 17 right of first refusal. BASF disagreed. INEOS brought an action, alleging breach of contract and tortious interference. The district court dismissed the complaint. It held that the sale of Amoco to INEOS was an assignment to a party not owned 50% or more by Amoco’s parent and thus triggered Article 19. INEOS was, therefore, an impermissible assignee of the contract and could not sue to enforce it. INEOS appeals.
Congress enacted the Agricultural Marketing Agreement Act of 1937 (“AMAA”) to regulate the milk producing industry. The AMAA establishes a minimum uniform price for milk in a particular region without regard to its end use. The Department of Agriculture (“USDA”) promulgates milk marketing orders in the different regions. The marketing orders identify the plants and handlers that are regulated. They also determine whether a particular supply of milk is included in the calculation of the blended price for the milk and whether a particular supply receives that price. A diversion limit is the maximum amount of milk a handler can divert to a plant not participating in the program and still be entitled to the blended price. In early 2005, the USDA began a rulemaking addressed at reducing the diversion limit standards. White Eagle Cooperative, a cooperative of milk producers, opposed the amendment. The USDA conducted a hearing in March and issued a interim rule on an emergency basis in July. The interim rule did reduce the diversion limits and became effective in October. A similar final rule was issued in 2006. White Eagle filed a complaint in federal district court. White Eagle alleged that the USDA: a) violated due process by allowing employees of the program administrator to participate in the rulemaking process, b) violated the Regulatory Flexibility Act (“RFA”) by failing to do the proper analysis and support its certification, c) violated the Administrative Procedure Act (“APA”) by failing to support its emergency rule, d) improperly delegated rulemaking authority, e) violated the AMAA by considering end use in its rulemaking, and f) violated the APA by making a decision without adequate record support. The district court granted summary judgment to the USDA. White Eagle appeals.
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..jpg)
David Johnson obtained a certificate of purchase for a tax-delinquent piece of land in Cook County (the “County”). The certificate allowed him to acquire the property by following certain notice requirements and by then petitioning the court. He complied with the notice requirements. Before he petitioned the court, the County realized that its determination of delinquency was in error. The County and Johnson agreed to an order, entered by the court, declaring the tax sale in error and directing the cancellation of the certificate and return of the purchase price. Notwithstanding the order, Johnson petitioned the state court for a deed. Johnson later filed suit in federal court. He alleged that the County’s failure to issue the deed violated his constitutional rights and the Interstate Land Sales Full Disclosure Act, as well as various other state statutory and common laws. The court granted defendant’s motion to dismiss, ruling that the complaint sought review of a state court decision in violation of the Rooker-Feldman doctrine and that jurisdiction was barred by the Tax Injunction Act (“TIA”). Johnson appeals.
In 1996, Llwellyn Greene-Thapedi filed a tax return for tax year (“TY”) 1992. The government challenged her reported tax liability. Ultimately, the U.S. Tax Court determined that she owed an additional ≈$10,000. In December 1997, the IRS assessed a deficiency for the amounts owed plus interest and asserts that it sent Green-Thapedi a notice of deficiency. Green-Thapedi claims that she never received the notice. When the U.S. threatened to levy assets, Green-Thapedi paid the ≈$10,000 and interest through December 1997 but refused to pay the additional interest on the ground that she did not receive the notice. She also brought suit in tax court to recover a ≈$10,000 overpayment on her tax for TY1999. While her suit was pending, the government applied the TY1999 overpayment to the claimed TY1992 deficiency. Green-Thapedi brought an action in federal district court to recover the TY1999 overpayment. The district court stayed the action pending the outcome in the tax court. The tax court held that her TY1999 claim was moot because the government had credited her claimed overpayment to TY1992. The government moved to dismiss in the district court for Green-Thapedi’s failure to exhaust administrative remedies in that she never made a refund claim with the IRS. The district court denied the motion. It held that Green-Thapedi’s petition in the tax court constituted an informal claim for refund. Green-Thapedi then amended her complaint to add a claim for a refund of ≈$10,000 for TY1992. The court below found that the government properly calculated Green-Thapedi’s taxes and penalties and found that Green-Thapedi did not present sufficient evidence to rebut the government’s position on the notice. Green-Thapedi appeals..jpg)
Spurlino Materials (“Spurlino”) produces and sells concrete. In 2005, several employees began a union representation effort. Spurlino management allegedly campaigned heavily against the union. Notwithstanding those efforts, the company employees voted to be represented by the union. The NLRB certified the union and it began negotiating its first contract with Spurlino in early 2006. The parties continued to negotiate through early 2007, but were unable to agree on contract terms (and apparently still have not). Attendance at union meetings declined during this period, possibly because of fears of retaliation by Spurlino. Spurlino management allegedly continued an intense harassment campaign against the union.