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

O'NEAL v. CITY OF CHICAGO (November 17, 2009)

Brenda O'Neal was a Chicago police officer. After ten years on the force, she was promoted to sergeant in 2001. In 2002, Neil sued the Chicago Police Department (CPD), alleging that a then-recent transfer violated Title VII. The district court granted summary judgment against her -- the Seventh Circuit affirmed. Since that lawsuit, the CPD has transferred her ten times into a total of seven different units of the department. O'Neal filed another lawsuit in 2007, alleging that the transfers amounted to discrimination and retaliation. The district court again granted summary judgment against her. O'Neal appeals.

In their opinion, Judges Bauer, Wood and Williams affirmed. The Court first emphasized that it would consider only the last two transfers because of the timing of O'Neal's EEOC complaint and that it would not consider the transfers as a whole because O'Neal failed to make the argument. One of the elements of O'Neal's retaliation claim is that the adverse action taken by the department must be causally connected to her protected activity. Here, her protected activity includes her 2002 lawsuit and a 2006 grievance. The Court concluded that there was insufficient evidence of a causal connection under either the direct or indirect methods of proof. Specifically, with respect to the indirect method, O'Neal failed to rebut the department's evidence that she was not meeting its legitimate expectations. The Court stated that her gender discrimination claim failed for the same reasons.

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MACH v. WILL COUNTY SHERIFF (September 1, 2009)

Michael Mach was a Will County Deputy Sheriff assigned to the traffic division. For years, he maintained a satisfactory performance record. That changed after 2003. Because of budget pressure, the department notified the deputies in the traffic division that they could be temporarily assigned to the patrol division. Mach and other deputies were not happy. He started acting out, failing to follow directives, disregarding instructions, and neglecting his duties. After reprimands and warnings, he was permanently transferred to the patrol division. Mach brought an action pursuant to the Age Discrimination in Employment Act (ADEA). In addition to his transfer, he stated five other grounds for his claim. In response to the defendants’ opening briefing on summary judgment, he abandoned all five of those other grounds. The court granted summary judgment to the Sheriff and also awarded fees of 5/6 of the costs of preparing the summary judgment motion, reflecting effort that went into attacking the "worthless" claims. Mach appeals.

In their opinion, Judges Bauer, Flaum and Kanne affirmed. On the merits, Mach relied on the direct method of proof, which required him to produce evidence that he was transferred because of his age. The Court noted an absolute lack of evidence in the record supporting any such inference. His poor job performance was well documented by the department. The only circumstantial evidence of age discrimination was one stray comment made by an individual who had no influence on the transfer decision. Mach's ADEA claim fails. With respect to the fee award, the Court noted a prior holding that ADEA does not preclude an award of fees to a prevailing defendant if a plaintiff litigates in bad faith. Here, the Court concluded that the district court did not abuse its discretion in ruling that Mach litigated the five claims in bad faith. The Court noted its belief that such sanctions would be rare -- here the district court explicitly held that the five claims were "worthless."

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