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

GRIGSBY v. LAHOOD (December 6, 2010)

Brian Grigsby worked with for the FAA at the Indianapolis Center from 1991 until 1997. He entered as part of a learning program while he finished his degree and continued as a developmental Air Traffic Controller. In that role, he was trained and certified as a radar associate and was in the middle of his radar controller training when he asked for a transfer. Although he never made a formal complaint, it appears that Grigsby requested a transfer to escape hostile comments from his coworkers directed at his then-recent discovery of and pride in his Native American heritage. The FAA granted his transfer request. From 1997 until 2005, Grigsby worked at and became fully certified at the Terre Haute, Indiana automated center. Unfortunately, the FAA privatized the Terre Haute Center in 2005 and eliminated Grigsby's job. Grigsby applied for each of several different vacancies at the Indianapolis Center. On several occasions, he met with the Assistant Air Traffic Manager at the center. He alleges that, at their last meeting, she "bristled" and abruptly ended their meeting when he mentioned that he was Native American. The FAA did not offer Grigsby any of the positions. Each of the successful candidates was a Certified Professional Controller and was familiar with the technology at the Indianapolis Center, which had changed drastically since Grigsby's transfer. Grigsby brought a claim against the FAA pursuant to Title VII of the Civil Rights Act, alleging Native American origin discrimination. Judge Young (S.D. Ind.) granted summary judgment to the FAA. Grigsby appeals.

In their opinion, Seventh Circuit Judges Posner, Kanne, and Wood affirmed. The Court addressed the claim under both the direct and indirect methods. It first rejected the claim under the indirect method because Grigsby's only evidence, direct or circumstantial, of discriminatory animus is the alleged reaction of the assistant manager to his statement regarding his heritage. Such "subtle indicia of distaste" falls short of establishing a case under the direct method of proof. With respect to his indirect proof case, the Court concluded that he could not prevail for several reasons. First, he was not qualified for the positions. Each position required a certified controller familiar with the Indianapolis Center operations -- Grigsby was neither. Next, even if he was qualified, he failed to show that the positions were filled by candidates with similar or less qualification.Each of the successful candidates was a Certified Professional Controller. Even if his qualifications were similar, which he alleges, each of the successful candidates was also operationally current at the Indianapolis Center. Again, Grigsby was neither. Finally, even if he met his prima facie case, he failed to show that the FAA's reason was pretext. The FAA has shown a legitimate reason for its decisions. Grigsby's allegations of pretext are not supported by the record. Grigsby also sought to proceed under a mixed-motive theory, as well. That theory of liability also requires proof of discrimination, direct or circumstantial. He has none and his mixed-motive theory fails as well.

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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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