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

EVERETT v. COOK COUNTY (August 24, 2011)

Cook County, Illinois faced a severe budget crisis in 2006. The County President instructed the Chief of the Bureau of Health to submit budget cut recommendations. One of the Bureau of Health functions was the Cermak Health Services, which provided medical and dental services to Cook County Jail inmates. The budget team identified Cermak’s dental program as a good source of some budget cuts. The Bureau Chief agreed to a recommendation that reduced the number of dentists from five to one. In deciding whom to keep among the five, the County looked for management experience, flexibility, productivity, and skills. The County ultimately chose Dr. Ronald Townsend as the dentist who best met those criteria. One of the five dentists who was not chosen was Dr. Carol Everett, a Caucasian woman who had been with Cermak for almost 25 years. Dr. Everett filed an appeal, which was denied. Everett filed suit under Title VII, alleging ethnicity discrimination, and under § 1983 and the Shakman decree, alleging political discrimination. Judge Kendall (N.D. Ill.) granted summary judgment to the County. Everett appeals.

In their opinion, Seventh Circuit Judges Kanne, Evans (who, due to his death, did not participate in the decision), and Sykes affirmed. The Court first addressed and rejected Everett's spoliation argument that the County destroyed certain documents containing notes concerning the layoffs. First, she did not identify any evidence of bad faith, a requirement before a negative inference is imposed. Second, the record does not support a conclusion that the documents were destroyed to eliminate adverse evidence. On the merits, the Court first addressed her political activity discrimination claim, in which she alleges that the decision to retain Everett was due to his political donations. The Shakman decree and the First Amendment prohibit firing an employee for political reasons. Under both theories, however, the plaintiff must show a causal relationship between the employment decision and the political considerations. Everett relied on procedural irregularities in the process to establish that causal relationship. The Court concluded, however, that her evidence was insufficient to establish such a relationship. Even if such a relationship had been established, however, Everett would still fall short because there is no evidence in the record that the decision-makers were aware of the political activity -- or lack thereof -- of either Everett or Townsend. The Court turned to the ethnicity discrimination claim. It concluded that Everett failed to show pretext. Although she provided some evidence of her possible superiority to Townsend in some areas, it was insufficient to show that the reasons the County gave for selecting Townsend were suspect. At most, they could show that the County made a hurried, poorly researched, and possibly poor decision. That is not enough to show pretext.

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SCHULZ v. GREEN COUNTY (July 20, 2011)

Wisconsin law requires each county in the state to provide defined juveniles services through a juvenile-intake worker. Green County is a small Wisconsin County on the Illinois border. Due to its size, it can employ its juvenile-intake worker through its court system or its Human Services Department. The Green County Circuit Court employed Sheila Schulz as the County's juvenile-intake worker from 1997 to 2008. During that time, she supervised some part-time employees. She was making $26.99 per hour in 2008. As part of a cost-cutting effort, the Green County Board of Supervisors eliminated Schulz's job and created a new job within the Human Services Department with much the same responsibilities, except it did not include supervising other employees. The County hired Schulz to fill that position at an hourly rate of $19.28. Schulz brought suit against the County, alleging that its actions deprived her of a property interest without due process in violation of § 1983. Chief Judge Conley (W.D. Wis.) granted summary judgment to the County. Schulz appeals.

In their opinion, Chief Judge Easterbrook, Circuit Judge Bauer, and District Judge Young affirmed. The Court admitted the general rule that a government employee who can be removed from her position only for cause has a property interest in that position and may not be fired from it without due process. A corollary to the general rule, however, is the reorganization rule. If a government eliminates a position, there is no longer anything in which one can have a property interest. But the Court noted that the reorganization rule might not apply if the reorganization only affects a single person. In that case, the reorganization might simply be a pretext. The record in this case does not support the notion that the County's reorganization was a pretext to fire Schulz. First, the undisputed record shows nothing but that the County reorganized to save money. Second, if the purpose of the reorganization was to get rid of Schulz, the County would not have hired her to fill the new position.

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RADENTZ v. MARION COUNTY (April 5, 2011)

Prior to 2005, forensic pathologists at Indiana University performed certain services, including autopsies, for the Marion County Coroner's office under a contract. The contract terms were very favorable to the County, in that the University subsidized much of the cost. The contract expired on the last day of 2004, the day before Kenneth Ackles, an African-American chiropractor, became the new Coroner. Notwithstanding the contract expiration, the University continued to provide services at no cost for a few months but it eventually terminated the contract. The Chief Deputy Corner reached out to two of the University's pathologists who had been providing the services, Stephen Radentz and Michele Catellier. Radentz and Catellier formed a limited liability company and entered into a five-year contract with the County to provide forensic pathology services. Under the contract, the pathologists could perform autopsies for other counties, but Marion County had to furnish the supplies for those autopsies. With six months notice, either party could terminate the contract without cause and the County could amend the contract to eliminate permission for other county autopsies. In late 2005, Ackles replaced his deputy with Alfarena Ballew, an African-American woman. Ballew terminated the contract with Radentz and Catellier. They brought suit pursuant to § 1983 against the County, Ackles, and Ballew, alleging that the contract termination was based on race discrimination in violation of the Constitution. Judge Lawrence (S.D. Ind.) granted summary judgment to the defendants. Radentz and Catellier appeal.

In their opinion, Chief Judge Easterbrook and Judges Posner and Rovner reversed and remanded. The Court noted that the district court concluded that plaintiffs had met their prima facie indirect method burden, and that determination is not challenged on appeal. What is at issue is whether the defendants' nondiscriminatory reason given for the contract termination was pretextual. In order to prevail, the plaintiffs must do more than show that the decision was unwise. They must show that it was not honestly believed. There was evidence that Ballew and the County were concerned about the contract costs. Ballew was particularly concerned about the costs the County incurred providing supplies for the other county autopsies. The County received no income from these autopsies. The Court noted that the contract allowed the County to withdraw that permission with six months notice. The County never explained why it gave six months notice to terminate the contract rather than giving the six months notice to withdraw the other county autopsy permission. Their failure to explain their decision casts some doubt on it. The Court noted other evidence that was consistent with a race based decision: the County was satisfied with plaintiffs’ work, the County hired an African-American woman to replace the plaintiffs, Ackles was on record discussing his desire for more African-Americans in the Coroner’s office, the racial demographics of the office were changing, and the new hire provided no economic benefit to the County. On that record, the Court concluded that a factfinder would not have to believe the County. The factual disputes concerning the termination decision preclude summary judgment.

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VAN ANTWERP v. CITY OF PEORIA (December 6, 2010)

Gene Van Antwerp served as a Peoria patrol officer for 18 years. The Police Department announced two vacancies in the Crime Scene Unit, one immediate and one a few months later, in September 2006. Van Antwerp applied. The Department offered the immediate slot to Officer Tuttle. They offered the delayed slot to Van Antwerp. The decision-makers actually believed that Officer Wong was a better candidate but they selected Van Antwerp because Wong was a month shy of the required seniority. A few months later, the Department rescinded Van Antwerp's offer. It reposted the same job several months later and offered it to Wong, who now had the requisite seniority. Although the Department offered no explanation at the time, it later stated that the vacancy was delayed because the incumbent's promotion was delayed. Van Antwerp, who was 50 years old at the time of his application, brought suit against the City of Peoria, alleging that its conduct violated the Age Discrimination in Employment Act (ADEA). Judge McDade (C.D. Ill.) granted summary judgment to the City. Van Antwerp appeals.

In their opinion, Seventh Circuit Judges Posner, Kanne, and Williams affirmed. ADEA makes it illegal to discriminate against a person because of his age. However, in order to prevail on such a claim, the plaintiff must establish that age played a role in and actually motivated the decision. The Court analyzed Van Antwerp's claim under the direct method of proof -- and found it lacking. First, the Court concluded that he offered insufficient evidence of pretext. Even his strongest evidence would not allow an inference that the Department lied. It might allow an inference of error, but that is not enough to show pretext. The Court added that Van Antwerp's claim would fail even if he successfully established pretext. He had to show that the Department's made its decision because of his age. There is actually no evidence in the record that age was the reason the Department rescinded his transfer. The Court briefly considered Van Antwerp's claim under the indirect method. The claim fails under that method both because Van Antwerp waived it and because he was unable to show pretext.

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NAIK v. BOEHRINGER INGELHEIM PHARMACEUTICALS (November 22, 2010)

In early 2004, Boehringer Ingelheim Pharmaceuticals hired Prakash Naik, a 53-year-old India native, as a sales representative in its Schaumburg territory outside of Chicago. Naik’s job was to make sales calls on doctors and other medical professionals and promote BIP's products. Naik complained to the company that his manager, Brett Lundsten, made inappropriate comments regarding both his age and his national origin. In early 2005, a regional performance review disclosed that the Schaumburg territory was underperforming. Lundsten began investigating his employees’ sales call activities. He found several irregularities with respect to Naik's call activity, including recorded sales calls at times when the identified medical professional was apparently not available. He investigated further, directly contacting the professionals’ offices. His investigation resulted in a list of at least six occasions on which Naik recorded a sales call with a person who was not present. Lundsten, along with the regional manager and a regional human resources representative, confronted Naik. Naik claimed that he had no recollection of the calls. The company representatives provided him with the details of their investigation and gave him until the following day to provide additional information. When Naik was unable to provide any information to explain the apparent irregularities, BIP terminated his employment. The company replaced him with a 36-year-old non-Indian male. Company records also show that two other employees were fired for falsifying sales calls, two other employees voluntarily resigned after being accused of falsifying sales calls, and that no employee accused of falsifying sales calls was retained. Naik brought suit against the BIP, alleging age discrimination under the Age Discrimination in Employment Act and national origin discrimination under Title VII. Judge Andersen (N.D. Ill.) granted summary judgment to BIP. Naik appeals.

In their opinion, Seventh Circuit Judges Cudahy, Rovner, and Evans affirmed. Naik relies on the indirect, McDonnell Douglas formula for proving discriminatory intent. Two of the four elements of the tests are at issue here -- whether Naik was meeting his employer’s legitimate expectations and whether BIP treated similarly situated employees more favorably. The Court quickly disposed of the legitimate expectations element, concluding that the call record falsification without explanation was adequate evidence of a failure to meet legitimate expectations. The Court also agreed with the district court that Naik failed to establish that any similarly situated employee was treated differently. In fact, the record shows no disparity in the company’s treatment of employees who falsify sales call records. Although Naik fell far short of meeting his burden, the Court added that he also could not have established that BIP's nondiscriminatory reason was pretextual. The company's belief that he falsified his call reports was a legitimate, nondiscriminatory reason for terminating his employment.

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MONTGOMERY v. AMERICAN AIRLINES (November 19, 2010)

Anthony Montgomery has been an American Airlines employee for over 20 years, all but five months of it as a Fleet Service Clerk. It is the events of those five months, however, that matter in this case. Late in 2006, Montgomery asked for and was granted a transfer to a mechanic's position. The collective bargaining agreement required and defined a six-month probationary period, toward the end of which Montgomery would have to pass a tool inspection and qualification test. Montgomery took his test in April of 2007. Two company supervisors and a union representative were present. Montgomery failed the test and was returned to his prior position. Nearly 3 months later, Montgomery complained to American that he was subjected to racial harassment and discrimination during his probationary period. In the initial meeting with a company representative, he never stated that he had complained to his supervisors at the time. The company conducted an investigation and concluded that it could not substantiate the allegations. The results of the investigation were that the test was administered fairly, that the few employees who became mechanics without passing the test fell into different categories, and that any tension in the workplace was not based on race. Montgomery filed suit. He alleged a hostile work environment in violation of § 1981 and Title VII and racial discrimination, also in violation of § 1981 and Title VII, for his return to the clerk position. Judge Der-Yeghiayan (N.D. Ill.) granted summary judgment to American. Montgomery appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Bauer and Kanne affirmed. The Court first addressed the hostile work environment claim, noting that the analysis under the two statutes is the same. The Court found triable issues of fact with respect to three of the four elements of the claim. In order to recover against an employer, however, Montgomery had to establish that American either participated in the harassment or was negligent in finding and correcting it. His only allegation of participation referred to a coworker and thus does not satisfy the participation prong. In order to satisfy the second prong, Montgomery had to establish either that he informed his supervisors of the harassment or that it was so obvious that it amounted to constructive notice. The record does not support either conclusion. The only person he reported his concerns to was his crew chief, a non-management coworker. America cannot be liable for the harassment without clear and direct reporting from the employee. Even if the harassment had been reported, the Court stated that American would have avoided liability because of its prompt and appropriate investigation. The Court turned to the discrimination claim, which Montgomery pursued under both the direct and indirect method of proof. Again, the analysis is the same under both statutes. Under the direct method, Montgomery asserted that non-African-Americans were not required to take the test. The Court rejected this as proof. Even if true, it did not allow the inference of discriminatory motive. Under the indirect method, Montgomery had to establish that similarly situated employees were treated more favorably. He alleged that three individuals became mechanics without passing the test. But the Court concluded that none of the three was similarly situated to Montgomery -- one became a mechanic before the test rule was enforced, one became a mechanic when a recalculation of his probationary time put him past the time limit for taking the test, and Montgomery presented no admissible evidence with respect to the third individual. The Court concluded that Montgomery cannot prevail on his claim that the test requirement was discriminatory. Montgomery also claimed that the test itself was discriminatory. On that claim, the Court concluded that Montgomery simply presented no evidence. Finally, although Montgomery failed to make out a prima facie case, the Court also addressed pretext. It found that American had a legitimate reason for its actions and that Montgomery provided no evidence otherwise.

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NORMAN-NUNNERY v. MADISON AREA TECHNICAL COLLEGE (November 8, 2010)

Elvira Jimenez brought a race discrimination lawsuit in 2000 against Madison Area Technical College and three of its employees (Carol Bassett, Jackie Thomas, and William Stryker). Her lawyer was Willie Nunnery. The suit was dismissed as frivolous -- Nunnery was sanctioned and lost his law license for a period of time because of his involvement in the case. On two separate occasions in the following few years, Judy Norman-Nunnery applied for positions at the College. Norman-Nunnery is an African-American woman and is married to Willie Nunnery. In 2002, she made it through an initial screening but was not interviewed. In 2005, she was encouraged to apply for a different position by the College's minority recruiter and Eugene Fujimoto, its Diversity Coordinator. Carol Bassett screened the 77 applicants for minimum qualifications. Norman-Nunnery and 45 others advanced. At that point, a five-person selection committee chaired by Jackie Thomas developed a weighted scoring system with five criteria. Each committee member separately scored the remaining 46 candidates. The College selected the top 10 to interview. Norman-Nunnery was not in the top 10. In fact, only one minority candidate made the list. Under the College’s diversity policy, it added the next two highest-scoring minority candidates to the interview list. Norman-Nunnery was not one of those two, either. Fujimoto met with Basset, Thomas, and William Stryker to discuss why Norman-Nunnery did not make the cut. They told him that she did not score well on two of the five criteria. Although he advised Bassett, Thomas, and Stryker that her resume may not have accurately reflected her experience, they chose not to add her to the interview list. A white woman was hired for the job. Norman-Nunnery filed suit against the College as well as Bassett, Stryker, and Thomas. She alleged violations of Title VII, the 1st and 14th amendment, and § 1981 for discriminating against her on account of her race and her association with her husband. Judge Crabb (W.D. Wis.) granted summary judgment to the defendants on the ground that no rational jury could conclude that race or marital status was the motivation for the defendants' actions. Norman-Nunnery appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Rovner affirmed. The Court first addressed Norman-Nunnery's argument that she was entitled to a spoliation inference due to the unexplained loss of a number of documents relevant to her claim. It concluded that she was not. To be entitled to an inference that the missing documents would support her claim, she must show that the documents were intentionally destroyed in bad faith in order to hide adverse information. Here, the files were lost before any claim was made and there is no evidence that they were intentionally destroyed in order to cover up harmful evidence. The Court cited the fact that the office in which they were located had moved twice, that the filing system was haphazard, and that in fact most of the documents relevant to the claim were not lost. Without evidence of a bad-faith motive, Norman-Nunnery is not entitled to a favorable inference. On the merits, Norman-Nunnery proceeded under both the direct and indirect approaches. Her only claimed direct evidence, however, once the inference was rejected, is an unscientific study that concluded that the College's selection process favored internal candidates. Since most internal candidates were not minorities, the process therefore favored non-minorities. The Court stated that such a study cannot, by itself, meet the standard for a discrimination claim and rejected the claim under the direct method. In reviewing a case like this under the indirect method, the analysis of the prima facie case and the defendants' non-discriminatory reason response frequently overlap. Norman-Nunnery must show that she was qualified and that defendants rejected her in favor of someone of like qualifications. The defendants, on the other hand, assert as their non-discriminatory reason that Norman-Nunnery was not as qualified as those interviewed and as the individual who was hired. The undisputed facts in this case established that the defendants applied the same criteria to all applicants and made their decision based on the applicants' qualifications. Summary judgment on her race discrimination claim was appropriate. For much the same reason, the Court rejected her claim that she was discriminated against because of her husband. There was some evidence that at least some of the defendants knew who her husband was and continued to have negative feelings about him. There was no evidence, however, that the defendants made their hiring decisions because of him.

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CASANOVA v. AMERICAN AIRLINES (August 5, 2010)

Bruce Casanova, an American Airlines baggage handler, reported an on-the-job injury to his supervisor toward the end of his shift on a Monday. The injury, however, is alleged to have occurred the preceding Friday. His supervisor sent him to the medical center and reported his injury to the firm that handles workers compensation claims for the airline. The medical staff instructed Casanova not to use his arm pending further examination. His supervisor was suspicious: Casanova claimed to be in too much pain to debrief her on the injury but had waited 72 hours to even report it and had worked most of a full shift in the meantime. She also noticed him using his left hand, apparently without pain. The airline decided to put him under surveillance. He was observed using his left arm frequently. American demanded an "Article 29F" hearing, an employer inquiry proceeding pursuant to the collective bargaining agreement. Casanova failed to cooperate at the hearing, answering "I don't recall" most questions. He did affirmatively deny any use of his left arm after the injury. Casanova also refused to provide a written explanation of the injury. American fired Casanova for lying and insubordination. Casanova brought suit, claiming that his discharge was in retaliation for his claim for workers' compensation benefits. At trial, a jury awarded over $1 million (mostly punitive damages). Judge Guzmán (N.D. Ill.) denied American's post trial motions. American appeals.

In their opinion, Chief Judge Easterbrook and Judges Kanne and Sykes reversed. The Court concluded that the district court erred in finding that Casanova prevailed because the injury (and his implied future claim for workers' compensation benefits) was a but-for cause of the later discharge. The injury claim was, in fact, a necessary condition of Casanova's discharge -- but it was not a sufficient condition. The record is clear that American fired Casanova for his lying and insubordination. Casanova did not even try to offer evidence suggesting that American's reason was pretextual. Instead, he attacked American’s use of the Article 29F procedure. Without any material dispute on an absence of pretext, America was entitled to judgment as a matter of law.

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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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EGONMWAN v. COOK COUNTY SHERIFF'S DEPARTMENT (April 22, 2010)

Iyare Egonmwan was a black male jail guard at the Cook County Jail. In 2001, he was transferred into the women's division. The following year, the female superintendent of the division disciplined him for conduct that had occurred prior to his transfer. Several days later, Egonmwan accused the superintendent of sexual harassment. The claim was investigated and determined to be unfounded. In 2003, during a general investigation into allegations of sexual misconduct between guards and prisoners, a female detainee informed the investigators that she and at least one other prisoner had had a sexual encounter with Egonmwan. Although Egonmwan was acquitted of criminal charges in 2004, an administrative hearing board terminated his employment in January of 2005 for violation of institutional rules. Egonmwan brought suit against, among others, Cook County and the Sheriff's Department. He alleged § 1981 race discrimination and § 1983 gender and race discrimination. The district court granted summary judgment to the defendants. Egonmwan appeals.

In their opinion, Judges Cudahy, Evans, and Sykes affirmed. The Court first affirmed the summary judgment on the gender discrimination claim. Egonmwan proceeded under the direct method but presented only a few isolated remarks by the women's division superintendent. The Court noted that isolated remarks may be sufficient to establish a discriminatory motive, but they must be made by the decision-maker, at the time of the decision, and regarding the decision. Here, the Court doubted (but did not decide) that the superintendent could be considered the decision-maker. It upheld the summary judgment because of the seven to ten month lag between the remarks and the action and the fact that the remarks did not refer to Egonmwan's termination. With respect to the race discrimination claim, the Court concluded that Egonmwan was unable to show that similarly situated non-blacks were treated more favorably or that the defendants' reasons for his termination were not legitimate.

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STOCKWELL v. CITY OF HARVEY (March 12, 2010)

Jason Bell, Harvey's fire chief, decided to hire a Deputy Chief and three Assistant Chiefs. Chief Bell wrote down traits that he considered desirable (competence, loyalty, dedication, and confidence) and unacceptable (selfishness, complaining, dishonesty, and undermining authority). Anyone with ten years of service on the Fire Department could apply and a sign-up sheet was posted. Nine members of the department indicated an interest in the Assistant Chief position -- eight of the nine also indicated an interest in the Deputy Chief position. Three of the nine were African-American (Buie, Tyler, and Patterson). Before any interviews, Chief Bell offered the Deputy Chief position to a white fireman who had not applied - he declined. Each of the nine candidates was then interviewed and evaluated in several categories. Chief Bell ranked the candidates based on several factors, including the interview evaluation scores. The three African-Americans all scored in the top four. The fourth candidate withdrew his name from consideration. The African-Americans all received promotions. The next highest scorer was Rich Stockwell. Chief Bell did not offer Stockwell a promotion, based on his belief that Stockwell was nearing retirement. The fourth promotion was given to a white candidate who had not applied for the position. Rich Stockwell and three other white firemen brought an action under Title VII against the City of Harvey for race discrimination. The district court granted summary judgment to the City. The firemen appeal.

In their opinion, Judges Ripple, Williams, and Tinder affirmed. The Court described the prima facie case and burden shifting analyses under the McDonnell Douglas indirect method of proof. It then proceeded to decide the case under the pretext requirement, assuming a prima facie case. In order to prevail, the Court stated, a plaintiff must establish that the non-discriminatory reason given by an employer was dishonest and that the real reason reflected a discriminatory intent. Even an unreasonable decision is not actionable if the decision-maker believed it. The Court reviewed the record with respect to each plaintiff and found legitimate and non-discriminatory reasons not to promote each: a) Bell testified that DeYoung had a reputation for being negative and Chief Bell had a belief that he might undermine management, b) Bell testified that he thought Ciecierski was dishonest and not trustworthy, c) Bell testified that Gary Stockwell did a lot of complaining and would not support the department, and d) Bell testified that he believed that Rich Stockwell was nearing retirement and not committed to the department for a long term. In light of Chief Bell's testimony, the Court concluded that none of the plaintiffs could establish a genuine issue of fact with respect to pretext.

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SENSKE v. SYBASE, INC. (December 3, 2009)

Robert Senske joined Sybase as a Strategic Account Manager in 2002. He was 55 years old at the time. For two years, Senske's performance was marginal at best in most areas. He did outperform his financial goal in 2004, but only because he got partial credit for two large deals on which he had little input or contribution. He was particularly criticized for excessive tardiness and incomplete paperwork completion. In early 2005, he was put on a performance improvement plan. He was told to improve his business skills, to be more responsive, and to complete his paperwork in a timely manner. Instead of showing improvement, Senske's performance deteriorated during the performance improvement period -- and he was fired. Senske sued Sybase under the Age Discrimination in Employment Act, alleging that he was fired as a result of his age. The district court granted summary judgment to Sybase. Senske appeals.

In their opinion, Judges Bauer, Kanne and Evans affirmed. Instead of enumerating the elements of a prima facie case under the indirect method, the Court proceeded directly to address the question of pretext. If Senske is unable to show that Sybase's stated reasons for his termination are pretextual, he also would not be able to establish that he was meeting his employer's legitimate expectations. The Court reviewed, in some detail, the evidence in the record of Senske's history of performance and Sybase's stated reasons for his termination. The Court concluded that Senske failed to present any evidence that the reasons given by Sybase for his termination were not sincere.

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FARR v. ST. FRANCIS HOSPITAL AND HEALTH CENTERS (June 29, 2009)

David Farr was a respiratory therapist at St. Francis Hospital. In 2000, he was the only male among the seven respiratory therapists in his department. There was a single computer in the department for the use of all the therapists. Although the hospital policy was for each therapist to log on with a unique password before each use, the practice was quite different. Typically, the first user of the day logged on with his or her password and all later users piggybacked on that login. When one of the therapists discovered inappropriate material on the computer, the hospital conducted an investigation. It found that: a) pornographic and hacking sites were accessed at the computer, b) Farr was logged on to the computer at the time the sites were accessed, and c) that Farr was the only one working on one particular day when a substantial amount of the activity took place. Farr eventually admitted that he was responsible for visiting some of the sites and that the others may have been generated by a computer virus during his use of the computer. The hospital terminated Farr's employment. Farr sued the hospital, alleging gender discrimination and a breach of implied covenant of fair dealing based on the employee handbook. The court granted summary judgment to the hospital. Farr appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Evans affirmed. Although Farr asserted that he could prove his claim by both the direct and indirect methods, the Court disagreed. Neither test resulted in a conclusion that Farr was the victim of gender discrimination. In fact, the Court stated, the hospital's investigation convinced it that he was the one responsible. He even admitted he accessed the inappropriate sites. Nothing in the record showed that the hospital's reasons were pretextual. The Court also affirmed with respect to the state law claims. Farr's covenant of fair dealing claim is inconsistent with Indiana law. His defamation claim fails because the hospital's report was privileged, in that it was used during the grievance proceedings that he himself initiated. 

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