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

ABUELYAMAN v. ILLINOIS STATE UNIVERSITY (December 13, 2011)

Illinois State University classifies its professors in two ways. First, a professor is ranked either as an assistant professor, an associate professor, or a full professor. The University's expectations of a professor depend on his or her ranking. Professors are also classified as tenured, probationary tenure-track, or nontenure-track. The University conducts fairly rigorous annual evaluations to assess its faculty members’ performance. The University hired Eltayeb Abuelyaman, an Arab Muslim, as a probationary tenure-track associate professor in 2001. The University's evaluation committee gave Abuelyaman low performance scores for several years and elected not to reappoint him in March 2006. Abuelyaman filed a complaint with the EEOC alleging race, religion, and national origin discrimination. He cited several bases for his allegation. First, he complained several times to Dr. Dennis that Dennis' decision to give greater weight to student evaluations disadvantaged foreign born professors. Second, Abuelyaman supported another professor’s complaint that the professor had been discriminated against with respect to his non-renewal. Third, Abuelyaman was involved in the investigation of another professor’s complaint that Dr. Dennis improperly used his authority on a Search Committee to steer the committee to a candidate that Dennis preferred. Abuelyaman filed suit pursuant to Title VII for 1) discrimination, 2) retaliation for backing his fellow professor’s discrimination claims, and 3) retaliation for participating in the Dr. Dennis complaint. Judge Mihm (C.D. Ill.) granted summary judgment to the University on the discrimination claim and the first retaliation claim. He granted a motion for judgment as a matter of law at the close of plaintiff’s case on the second retaliation claim. Abuelyaman appeals.

In their opinion, Seventh Circuit Judges Ripple, Manion, and Sykes affirmed. The Court first addressed and rejected the University's argument that the district court abused its discretion in granting Abuelyaman an extension of time to file the notice of appeal. Abuelyaman’s attorney attempted to file the notice of appeal electronically before the filing deadline and thought she had done so. When she realized, six days later, that her filing had not been successful, she promptly filed a motion for an extension. The district court did not abuse its discretion in finding excusable neglect under Rule 4(a)(5). On the merits, Abuelyaman proceeded under the direct method of proof. His principle argument was that he was treated differently from other, similarly situated faculty members. The Court agreed with the district court that Abuelyaman fell far short of meeting his burden. First, his comparisons to tenured faculty members did not meet the "similarly situated" test. Second, the Court found that the University’s treatment of underperforming non-tenured faculty members was very similar to their treatment of Abuelyaman. With respect to his retaliation claims, Abuelyaman had to show that he was engaged in protected activity and that there was a causal relationship between the activity and his non-renewal. His first claim, that the University retaliated against him for his complaints about discrimination directed at a fellow faculty member, fails both because he did not raise it in time in the district court and because there is no evidence in the record that the decision-makers knew of his involvement in that matter when they decided not to renew his contract. The second claim, that the University retaliated against him for his involvement in the Dennis investigation, fails because Abuelyaman was not engaged in protected activity. The Dennis investigation did not involve any allegations of discriminatory conduct. Abuelyaman’s involvement was therefore not protected under Title VII.

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O'LEARY v. ACCRETIVE HEALTH, INC. (September 21, 2011)

Accretive Health is a Chicago-based firm that provides consulting services to hospitals. It hired Joseph O'Leary in early 2005. Although the firm was initially satisfied with O'Leary's performance, it started having reservations in mid-to-late 2006. It even replaced him at one of the hospitals for which he was responsible at the request of the hospital's CFO. In late 2006, O'Leary learned that one of his female reports had made sexually charged remarks at a company dinner. O'Leary reported the incident to his superiors. At the same time, O’Leary expressed his belief that the same female was treating an African-American subordinate in a harsh manner. A company investigation into the sexual remarks concluded that the employee exercised poor judgment but did not violate any company policy. She was reprimanded. In December of 2006, Accretive terminated O'Leary’s employment. O'Leary brought suit under Title VII and § 1981, alleging that his termination was in retaliation for his actions opposing sexual and racial discrimination. Judge Conlon (N.D. Ill.) granted summary judgment to Accretive. O'Leary appeals.

In their opinion, Seventh Circuit Judges Cudahy and Rovner and District Judge Adelman affirmed. Both Title VII and § 1981 prohibit retaliation against those who oppose the discriminatory practices made illegal by those statutes. The Court first addressed whether O'Leary established that he engaged in protected activity -- that is, that he took some action in opposition to prohibited discrimination. The Court concluded that he did not with respect to the sexual remarks. Given the relatively tame nature of those remarks and the facts that there was only one incident and that no one present felt harassed, O'Leary could not have reasonably believed that they constituted prohibited sexual harassment. The Court concluded that O'Leary did establish that he engaged in protected activity with respect to the employee’s treatment of her African American subordinate. Although the record is not very clear, the Court concluded that a fair reading supports that conclusion. O'Leary testified that he discussed his concern about race discrimination with his superiors, that his concern was based on more than one incident, and that the conduct resulted in the employee’s resignation. Satisfied that O'Leary met the protected activity requirement, the Court considered his claim under both the direct and indirect methods of proof. It easily rejected his claim under the direct method. O'Leary relied almost exclusively on the temporal proximity between his complaint and his discharge. But temporal proximity is rarely enough, by itself, and the timing in this case does not suggest retaliation. With respect to the indirect method, the Court concluded that O'Leary could neither show that he was meeting his employer’s expectations nor that Accretive's stated reasons for firing him were perpetual. Although there are issues of fact with respect to O'Leary's performance, the record contains sufficient undisputed facts to support the conclusion that he was discharged because of his performance.

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BURNELL v. GATES RUBBER CO. (July 27, 2011)

Eddie Burnell, an African-American male, worked in Gates Rubber Co.'s tool room from 1993 to 1996. He claims that he was subjected to racial discrimination during this time. After several years elsewhere, he returned to the tool room in 2003. In December of 2006, his supervisor instructed him to perform a task. When he did not do so, the supervisor issued a written warning. Burnell refused to accept the warning, claiming that he did not have time to perform the task. Burnell complained to the plant manager that the warning was inappropriate. His principal excuse was that he did not have time to complete the task. He later added that he had safety concerns. At a later meeting, the plant manager accused Burnell of "playing the race card." The employee relations manager convinced the plant manager not to fire Burnell if he signed a commitment letter. They presented Burnell with a commitment letter that implied that he was guilty of insubordination and dishonesty. He refused to sign the letter. He was fired. Burnell brought suit, alleging Title VII discriminatory discharge and retaliatory discharge claims and a § 1981 discrimination claim. Judge Kapala (N.D. Ill.) granted summary judgment to Gates. Burnell appeals.

In their opinion, Seventh Circuit Judges Kanne, Rovner, and Sykes affirmed in part and reversed and remanded in part. The Court first addressed his Title VII discriminatory discharge claim along with his § 1981 claim, which the Court noted are nearly identical. The Court rejected Burnell's claim under the direct method. Most of Burnell's circumstantial evidence related to the 1993-1996 period. The sum of his circumstantial evidence would not permit a rational jury to make a causal connection between Burnell’s termination and race discrimination. The Court also rejected the claim under the indirect method since he could satisfy neither the “met expectations” nor the "similarly situated" prongs of the test. The Court turned to his Title VII retaliatory discharge claim. Burnell clearly suffered a materially adverse employment action and engaged in statutorily protected activity. In fact, he complained quite regularly about what he felt were discriminatory practices in the workplace. To succeed on his retaliation claim, therefore, he needed only to connect his termination with his complaints. The Court relied almost exclusively on the plant manager's "playing the race card" comment, along with the history of discrimination complaints, to conclude that his claim should have survived summary judgment.

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LUSTER v. ILLINOIS DEPARTMENT OF CORRECTIONS (July 19, 2011)

Milton Luster is an African American male. In June of 2006, he was a lieutenant with the Illinois Department of Corrections assigned to the Dwight Correctional Center in Dwight, Illinois. On June 6, he and Christine Cole, a white female guard, got into a heated conversation during which Cole called Luster a "bitch." Luster filed an incident report accusing Cole of insubordination. Two days later, Cole filed her own report. In her report, she acknowledged a consensual affair with Luster years earlier and reported that Luster on two occasions had pinned her against the wall and put his mouth on her neck, that he had touched her buttocks, that he made suggestive remarks to her, and that he made unsolicited and uninvited phone calls and visits to her home. The Department began an investigation and put Luster on paid leave. Luster denied all the allegations but two other guards told investigators that they witnessed at least one of the incidents. In his final report, the investigator criticized Cole for the "bitch" remark and for her delay in reporting the harassment but credited her report of the events. The resulting disciplinary proceedings ended with a recommendation that Luster be fired. The warden agreed and suspended Luster without pay. As she was required to do under regulations, she requested the approval of the Illinois Department of Central Management Services for Luster's firing. Lester could have, but did not, file a grievance or administrative appeal. Instead, he resigned. He brought suit against the Department, alleging that he was fired because of his race in violation of Title VII. Judge Mihm (C.D. Ill.) granted summary judgment to the Department. Luster appeals.

In their opinion, Judges Posner, Tinder, and Hamilton affirmed. The Court stated the familiar elements under the indirect method of proof: member of a protected class, meeting the Department's performance expectations, an adverse employment action, and a similarly situated coworker treated more favorably. The first and third elements were not at issue and, here, the second and fourth elements merged. Luster put forward two "similarly situated" employees who he claims were treated more favorably. The Court rejected one of them as a comparator because the admissible evidence established that the accusations against that employee were found to be unsubstantiated. The other employee was an apt comparator. Accusations of physical harassment of a female coworker were found substantiated. That employee was also suspended without pay pending his discharge. Up until that point, the Court noted, he and Luster were treated identically. But the comparator employee, unlike Luster, successfully grieved his termination. The same opportunity was available to Luster. Therefore, he was not treated more favorably than Luster. The Court added that even if it had found a prima facie case, the Department would still prevail because it came forward with a legitimate, nondiscriminatory reason for their treatment of Luster. Luster did not provide sufficient evidence to allow a reasonable jury to conclude that the Department's reason was pretextual.

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ROBERTHENRY DAVIS, SR. v. TIME WARNER CABLE OF SOUTHEASTERN WISCONSIN (July 5, 2011)

Time Warner Cable of Southeastern Wisconsin employs two sales teams. The inside team takes calls from business subscribers and is paid mostly through commissions. The outside team is responsible for landing new customer accounts and is paid principally by salary. In the early 2000s, the inside team was comprised of mostly African Americans and the outside team was comprised of mostly whites. Roberthenry Davis was an African-American member of the inside team. Two women, one African-American and one white, joined the inside team in 2005. The white saleswoman's lack of success created friction on the team and even led to rumors outside the team. The team's manager, a white male, criticized the African-Americans on the team for not being more cohesive. The African-Americans objected to that treatment and Davis complained. In late 2006, Davis erroneously treated a simple service request as a commissionable transaction, even though two of his colleagues disagreed. Time Warner ultimately reversed Davis' treatment of the request and concluded that he had violated employee guidelines. Time Warner fired Davis. After further investigation, however, a human resources manager recommended that the company reinstate Davis with back pay, but with a warning and an improvement plan. Although there was disagreement within the company, Davis was soon reinstated. Davis was unhappy about the way he was treated when he returned and he was also unhappy with a new compensation scheme that reduced commission opportunities for the inside team. Davis filed suit, alleging that Time Warner discriminated against him and retaliated against him when it fired him and when it changed the compensation scheme. Judge Adelman (E.D. Wis.) granted summary judgment to Time Warner on the ground that race was not a motivating factor in the company's actions. Davis appeals.

In their opinion, Judges Flaum, Manion, and Tinder affirmed. The Court addressed each claim (discriminatory firing, retaliatory firing, discriminatory compensation, and retaliatory compensation) separately. With respect to discriminatory firing, the Court agreed with the district court that Davis failed to provide evidence of a causal connection between Time Warner’s conduct and his termination. The Court noted that there was some evidence of his manager's insensitivity, or even bigotry, but no evidence that it was a motivating factor. And there was evidence that Time Warner strictly enforced its guidelines and had fired many employees, both white and African-American, for violations similar to Davis’. Davis' retaliatory firing claim was based on his complaints to his manager about what he perceived as unfair treatment. Again, the Court noted the lack of evidence that it was his complains that led it to his termination. Indeed, the evidence was that the company regularly terminated employees for guidelines violations. Davis classified his discriminatory compensation claim as a disparate treatment claim. In order to succeed on that claim, he had to produce evidence that Time Warner reduced his compensation on account of his race. Here, the revised compensation plan applied to all employees of whatever race on the inside team. That fact, coupled with the fact that a member of the inside team could transfer to the outside team, leads to the inescapable conclusion that the decision was not race-based. Finally, the Court reached the same conclusion with respect to Davis' retaliatory compensation claim. There was no evidence to link his complaints to his manager with the changes in the compensation plan.

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ELLIS v. CCA OF TENNESSEE (June 9, 2011)

Harriett Ellis, Patricia Forrest, Shavon Jones, and Delores McNeil were all employed as nurses at the Marion County Jail II. They are all also African-American. CCA of Tennessee operates the jail pursuant to a contract with the Marion County Sheriff and employs its entire medical staff. Plaintiffs allege several instances of racial discrimination at the jail: a) a shift change directive that required nurses to rotate among shifts rather than work the same shift, as the plaintiff nurses had been doing, b) the health services administrator's possession of a management book excerpt that compared workplace problems to monkeys, c) a reference to monkeys over the intercom system, d) a coworker who wore clothing with a picture of the Confederate flag, and e) a doctor stating to one of the nurses that the first name of an inmate named Cole must be "black as." The plaintiffs all resigned in late 2006 or early 2007. They all claim they were constructively discharged because they complained about improper or unsafe work practices. They filed suit under Title VII and § 1981, alleging race discrimination and hostile work environment. They also alleged state law retaliatory discharge. Judge Barker (S.D. Ind.) granted summary judgment to the defendants. She also concluded that plaintiff Forrest's claims were precluded by res judicata. Plaintiffs appeal.

In their opinion, Circuit Judges Flaum and Williams and District Judge Herndon affirmed. The Court first addressed the hostile work environment claim. Such a claim must show that the environment was both objectively and subjectively offensive. Here, although the Court assumed that the plaintiffs found the management book offensive, they concluded that no reasonable person would find it so. The monkey in the book is clearly a metaphor for management problems, not people. There is also not enough in the record regarding the monkey comments on the intercom to establish a hostile work environment. Although the court found the Confederate flag and the doctor’s statement offensive, the limited number of incidents does not support a hostile work environment claim. The Court turned to the race discrimination claim. A race discrimination claim requires a material, adverse employment action. The Court rejected each of plaintiffs' three suggestions: a) the shift-change policy does not qualify because it did not include any particular hardship, b) plaintiff Ellis' three-day suspension does not qualify because she was unable to show that CCA's explanation was pretext, and c) they cannot show a constructive discharge since it requires more than hostile work environment. The Court then addressed the Indiana statutory whistleblower claim. In order for an employee to get the protection of the statute, she must report a violation of federal or state law, an ordinance violation, or the misuse of public resources. The reports at issue primarily addressed CCA safety practices. Since the plaintiffs have not identified any violation or misuse, they cannot prevail under the statute. The Court did find the district court's ruling on res judicata erroneous. One of the plaintiffs made similar allegations in an earlier lawsuit. The district court concluded that she should have amended her complaint in that suit to include incidents between its filing and the summary judgment motion. The court was wrong. Res judicata does not bar a second lawsuit based on facts that arose after the first complaint was filed.

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. KONICA MINOLTA BUSINESS SOLUTIONS U.S.A. (April 29, 2011)

Konica Minolta Business Solutions hired Elliot Thompson, an African-American male, in early 2005. Konica assigned him to a Tinley Park, Illinois sales team. Thompson believe that he was being discriminated against because of his race and registered a complaint with Konica's Human Resources Department in late October. Konica fired him the very next day, Thompson filed a charge with the EEOC. He alleged that he was subjected to different terms and conditions of employment and was discriminated against on account of his race. Konica initially cooperated with the EEOC investigation. During its investigation, the EEOC learned that Konica had four Chicago area facilities, that only six of its 120 employees were African-American, that all six were assigned to the Tinley Park facility, and that five of the six were on the same sales team. The EEOC issued a comprehensive subpoena, requesting substantial information regarding Konica's hiring history at all four sites. Konica petitioned to revoke the subpoena. The EEOC denied the petition. Judge Manning (N.D. Ill.) granted the EEOC's application for an order enforcing the subpoena. Konica appeals.

In their opinion, Judges Cudahy, Flaum, and Wood affirmed. Although the EEOC has primary authority for enforcing Title VII and must investigate discrimination charges, its authority is limited to evidence relevant to the charge. The Supreme Court adopted a generous relevance standard in Shell Oil. The EEOC need only have a "realistic expectation" that the requested evidence will advance its investigation. Although Thompson's charge did not include any allegations relating to his hiring, the Court had no trouble finding that the EEOC subpoena met the relevance test. Any discrimination in hiring or team assignments would be relevant to the EEOC's investigation of Thompson’s treatment. The Court also concluded that Konica failed to adequately develop its burdensomeness argument.

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GROESCH v. CITY OF SPRINGFIELD (March 28, 2011)

Kevin Groesch, Greg Shaffer, and Scott Allin are all white males, were all police officers in the Springfield, Illinois Police Department, all voluntarily resigned from the department, all sought reemployment with the department, and all were ultimately rehired between 1989 and 1996 as entry-level officers pursuant to City policy. Donald Schluter, on the other hand, is African-American. He also was a Springfield police officer who sought reinstatement after a voluntary resignation. He was rehired in 2000 -- but he was given a retroactive leave of absence and he returned to the force with full credit for his prior years of service. The City policy had not changed but the City Council enacted a special ordinance allowing the exception. The police union challenged the ordinance in state court but it was upheld. The City ignored the white officers' request to be credited with their prior years of service. A state court dismissed, on statute of limitations grounds, the officers’ lawsuit alleging disparate treatment under the Illinois Constitution. The officers then filed race discrimination claims under Title VII in federal court in 2004. Judge Scott (C.D. Ill.) denied the City's motions for summary judgment in late 2006, relying on the "paycheck accrual" rule, under which each department paycheck amounted to a separate discriminatory act. Five months later, however, the Supreme Court decided Ledbetter and rejected the paycheck accrual rule. The district court reversed course and granted the City's motion. The court also ruled that the officers' § 1983 claims were barred by res judicata because they could have been brought in the state court action. The officers appeal.

In their opinion, Judges Bauer, Wood, and Hamilton affirmed in part, reversed in part, and remanded. The Court first noted that Congress enacted the Lilly Ledbetter Fair Pay Act of 2009 during the pendency of the appeal. In effect, the Act reinstated the paycheck accrual rule and also made the reinstatement retroactive to any claim pending on the day of the Supreme Court's decision or later. The City attempted to avoid application of the Act or distinguish the case -- but to no avail. The Court reversed the district court with respect to the Title VII claims relating to the time period after the state court dismissal. Next, although the Act only directly applies to Title VII actions, the Court concluded that the paycheck accrual rule applied to pay discrimination claims under § 1983, as well. Finally, the Court considered the impact of the earlier state court decision. Under Illinois law, res judicata requires a final judgment, an identity of causes of action, and an identity of parties. The district court correctly concluded that res judicata bars recovery for claims that arose before the date of the final judgment. But each individual paycheck after that final judgment supports a separate cause of action and triggers a new statute of limitations. They therefore do not share an identity of causes of action and are not barred by res judicata. The Court emphasized that the state court had never ruled on the merits, therefore not implicating collateral estoppel or issue preclusion.

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SCHANDELMEIER-BARTELS v. CHICAGO PARK DISTRICT (February 8, 2011)

Cathleen Schandelmeier-Bartels, a Caucasian, began working for the Chicago Park District in early 2006. She reported to Andrea Adams (an African-American) who reported to Alonzo Williams (an African-American) who reported to Megan McDonald (a Caucasian). [Taking the facts in a light most favorable to Smith] During the summer of 2006, Schandelmeier-Bartels was supervising summer camp. One day, she heard what she thought was the sound of flesh being struck and a child's screams. Upon investigation, she came upon a young African-American child who had been suspended from summer camp. The child's aunt was kneeling over him with her arm raised and a belt in her hand. The child was crying and had visible welts on his arm. When Schandelmeier-Bartels told the aunt to stop, the aunt and the child left. Schandelmeier-Bartels reported the incident to Adams. Adams stated that what happened was acceptable discipline in their culture. Schandelmeier-Bartels reported the incident to the Illinois Department of Children and Family Services and, on their advice, to the police. The next morning, Adams, in the company of the child's aunt, confronted Schandelmeier-Bartels. Adams screamed at her, criticized her for sending the police to the aunt’s house, repeated her statement about the acceptability of that type of discipline in her culture, and ordered Schandelmeier-Bartels out of her office. Adams immediately sent a memo to McDonald complaining of Schandelmeier-Bartels’ poor performance. She recounted several examples, including failure to supervise, failure to report an emergency, and poorly written incident reports. The last example she gave was the incident with the young child. The Park District fired Schandelmeier-Bartels by the end of the day. Schandelmeier-Bartels filed suit for race discrimination under Title VII. A jury awarded her $200,000 in compensatory damages. Judge Coar (N.D. Ill.) granted the Park District’s motion for judgment as a matter of law. He concluded that Adams' racial animus did not affect the termination decision. Schandelmeier-Bartels appeals. The Park District cross-appealed the court's conditional denial of its motion for a new trial (although the Court pointed out that the cross-appeal was unnecessary).

In their opinion, Judges Manion, Williams, and Hamilton affirmed in part and reversed in part. The Court first addressed Schandelmeier-Bartels’ appeal. It noted that the case was based on a "cat's paw" theory. There was evidence of a racial animus on the part of Schandelmeier-Bartels’ supervisor but not on the part of the decision-maker. The Court noted the lack of consistency in recent cases regarding what is necessary to bridge that causal gap. Is evidence that the biased employee exerted "singular influence" over the decision-maker required or will something less suffice? The Court concluded that it need not resolve that issue since it found that a reasonable jury could have found for Schandelmeier-Bartels even under the more stringent test. Viewing the evidence in a light most favorable to Schandelmeier-Bartels, the jury could have found that Adams' input was decisive and that neither McDonald nor the human resources representative conducted an independent investigation. The Court thus reinstated the jury's verdict on liability. It turned to the Park District’s motion for a new trial. First, it rejected the argument that the district court should have modified a jury instruction in response to a jury question during deliberations. The objection came too late in the proceedings and, given the entirety of the instructions, there was no plain error. Second, the Court addressed the admittedly improper suggestion by plaintiff’s counsel during closing argument that an important e-mail actually had been created after the fact. Although the suggestion was without merit and even baseless, the Court noted that closing argument remarks rarely require a new trial. This remark was no different -- it was not an abuse of discretion for the district court to deny the new trial. Finally, the Court addressed the amount of the compensatory damage award. Although the Court found a rational connection between the evidence and a significant compensatory damage award, it concluded that the evidence did not support the $200,000 award. It relied on similar cases from the circuit to reduce the award to $30,000 (noting that, but for the district court judge’s retirement, it would have remanded the issue to him for redetermination).

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ESTATE OF DOROTHY DAVIS v. WELLS FARGO BANK (January 12, 2011)

In 1999, Dorothy Davis lived in a single-family home in Kankakee, Illinois. She was a widow, she was elderly, and she was African-American. A man approached her and offered to make some repairs to her home – and get a new home loan to pay for them. She ended up borrowing almost $90,000 from Mortgage Express and paying over $30,000 in settlement charges. She sued Mortgage Express. A jury found (apparently in Mortgage Express’ absence) in her favor. The court entered judgment for over $135,000 – a judgment she has since been unable to collect. Before Mortgage Express went out of business, it transferred her loan. The loan is now held by Wells Fargo Bank and serviced by Litton Loan Servicing. Wells Fargo and Litton have continued their attempts to collect on the loan. They proposed a modification, demanded payment, and pursued a foreclosure action. Davis, and now her estate, sued Wells Fargo and Litton. She asserted fraud and unconscionability claims under state law, race discrimination claims under both the Fair Housing Act and the Equal Credit Opportunity Act, and a claim for violating the Home Ownership and Equity Protection Act. Judge Aspen (N.D. Ill.) dismissed all of the claims except the FHA claim, on which he granted summary judgment to the defendants. The Estate appeals.

In their opinion, Seventh Circuit Judges Evans, Sykes, and Hamilton affirmed. The Estate’s biggest problem lies in the statutes of limitations, which vary from one to five years. There are only three acts that occurred within even the longest of those periods that could support the Estate's claims: Litton's modification proposal, Wells Fargo's failure to tell Davis that it had acquired the mortgage, and Litton's payoff demand. The Court addressed each of the claims in that light. With respect to unconscionability, the allegations must relate to the formation of the contract. None of the allegations within the limitations periods do so -- the claim was properly dismissed. With respect to fraud, a plaintiff must show reliance. The only possible allegation within the limitations period relating to fraud is Wells Fargo's failure to advise Davis of the loan transfer. Assuming that could amount to a fraudulent omission, Davis never alleged that she relied on it -- the claim was properly dismissed. With respect to the Home Ownership and Equity Protection Act, that statute requires lenders to make certain disclosures in connection with a loan. None of the allegations within the limitations period trigger the disclosure requirements -- the claim was properly dismissed. With respect to the Equal Credit Opportunity Act, the Court stated that that Act prohibits race discrimination against an "applicant," which is further defined as a person who receives an "extension of credit." The Court concluded that Litton's offer to modify the loan, which occurred within the limitations period, was an "extension of credit." Davis further alleged that the offer was racially discriminatory. The Court therefore concluded that the claim should have survived a motion to dismiss. The Court nevertheless affirmed the district court. It found that the defendants would have prevailed on summary judgment for the same reason they did on the FHA claim. Davis simply failed to put forth evidence of discrimination. Finally, the Court considered that FHA claim, the only claim that survived a motion to dismiss in the district court. Davis was given the opportunity, on summary judgment, to come forward with evidence that the defendants discriminated against her on the basis of race. Again, she was limited to conduct occurring within the limitations period. That "evidence" consisted of a) two unsigned and undated affidavits, which the court struck because they did not comply with the rules, b) the declarations of two former Wells Fargo employees, which the court struck because Davis never disclosed the declarants during discovery, and c) Davis' testimony that she believed she was the victim of race discrimination. Davis waived any complaint regarding the affidavits or declarations because she failed to raise any meaningful opposition to the district court’s reasoning on appeal. Her unsubstantiated personal beliefs are simply insufficient to support her claim.

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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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THOMPSON v. MEMORIAL HOSPITAL OF CARBONDALE (November 3, 2010)

Archie Thompson was a paramedic with the Jackson County Ambulance Service (JCAS), which served the Southern Illinois Regional Emergency System. Memorial Hospital of Carbondale had medical control of the System. Thompson was the only African-American full-time paramedic in the entire System. In late 2003, Thompson handled a diabetic emergency call. He administered an intravenous solution and revived the patient. The patient declined further medical assistance and Thompson left. After he returned to his base, Tim Brumley (Thompson's supervisor) criticized him for not following the proper protocol of calling medical control before leaving the scene of a diabetic emergency. Thompson claimed not to know the protocol. It was not posted at the base or in his ambulance. Brumley also learned, on inquiry, that other paramedics were doing the same thing. Brumley reported his concerns to Paula Bierman, the System Coordinator. Bierman advised the Hospital's Medical Director that Thompson should be disciplined, citing both his “total disregard” for protocol and a then-recent failing test result. A few days later, Bierman prepared a disciplinary report removing Thompson from primary care medical duties and signed Doolittle's initials. Thompson was placed on paid probation for three months, during which time he was under constant supervision. While on probation, he began seeing a counselor. Shortly thereafter, he took a medical leave of absence and eventually decided not to return to work. Thompson filed suit against Memorial Hospital and the ambulance service, alleging race discrimination, hostile work environment, and constructive discharge. Judge Murphy (S.D. Ill.) granted summary judgment to the ambulance service on all claims and to Memorial Hospital on the hostile work environment and constructive discharge claims. A jury heard the race discrimination claim against the Hospital, found in Thompson's favor, and awarded $500,000. The Hospital appeals from the jury verdict -- Thompson cross-appeals from the hostile work environment and constructive discharge summary judgment rulings.

In their opinion, Judges Kanne, Evans, and Williams affirmed in all respects except with respect to the amount of damages. The Court dispensed with the cross-appeal in relatively short order. To be successful, a hostile work environment claim must contain evidence of severe and pervasive harassment -- so much so that it changes the conditions of employment. The test is even higher for a constructive discharge claim. The Court concluded that the evidence here did not reach that level. With respect to the Hospital's appeal, the Court noted that it raised several arguments that were improperly preserved below. First, the Hospital argues that Thompson was not its employee. But it admitted below that this was a factual question and it never presented the issue to the jury. Second, the Hospital argues that the jury should not have heard testimony of the racial comments Bierman made because she was not the decision maker. But the evidence is relevant if she exerted significant influence over the decision maker. Here, the district court made a threshold determination that there was enough evidence on that issue to go to the jury and the Hospital did not seek an instruction on the point. Third, the Hospital argued that the probation was not an adverse employment action. But, although probation is not always an adverse employment action, the district court ruled that whether it was here was a factual question. The Hospital did not argue the point the jury or ask for an instruction. Having decided not to press these issues before the jury, the Hospital cannot rely on them now. Finally, the Court did believe that the $500,000 award was excessive. There was testimony of Thompson's depression and anxiety that his therapist characterized as "severe." But the adverse employment action was only placement on probationary status with no change in compensation. After reviewing awards in similar cases, the Court landed on a remittitur to $250,000.

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FINCH v. PETERSON (September 10, 2010)

In 1978, the Indianapolis Police Department and the United States Department of Justice entered into a consent decree designed to correct racial discrimination in the Department. The long-range goal of the decree was to increase the number of African-Americans to the point where it reflected the racial composition of the workforce in the city. In part, it provided that assignments, transfers, and promotions were to be based on appropriate criteria without regard to race. Now fast forward almost 30 years to 2006. That year, the Department promoted 11 lieutenants to captain. To prepare for the promotions, the Department screened, tested, and ranked each applicant. Instead of promoting the highest-ranked applicants, however, the Department promoted three African-Americans who ranked as low as 26th. Three white applicants, all of whom ranked in the top 10, brought suit pursuant to Title VII, § 1981, and § 1983. Magistrate Judge Lynch (S.D. Ind.) rejected the individual defendants' argument that they were entitled to qualified immunity because their actions were required by the consent decree and denied their motion for judgment on the pleadings. The defendants appeal.

In their opinion, Judges Flaum, Williams, and Sykes affirmed. The Court first confirmed its jurisdiction under the collateral-order doctrine. Even in the absence of a final judgment, a decision denying qualified immunity on an issue of law is immediately appealable. On the merits, the Court recited the familiar two questions raised by a qualified immunity analysis -- was a constitutional right violated and was the right sufficiently well-established to put the defendants on notice. The Court rejected the defendants' only argument that their race-based promotion decisions did not violate the Constitution -- that is, that the consent decree required them. Although it conceded that the consent order had general goals of increasing the number of African-American captains, the Court pointed to the several, very specific provisions of the order requiring race-neutral decisions. Other provisions of the consent decree (e.g., requiring sufficient African-American representation in an applicant pool) were designed to allow the department to reach its general goal without engaging in race-based promotions. The Court also rejected the defendants' only argument with respect to the "sufficiently well-established" prong because it also relied on the premise that the consent order required them to promote the African-Americans.

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CHAPIN v. FORT-ROHR MOTORS (September 3, 2010)

Trent Chapin is a used-car salesman. For years, he has worked on and off for Larry Kruse at several different dealerships owned by Bob Rohrman. In early 2004, Kruse hired him at Rohrman's Mid-States Motors in Fort Wayne, Indiana. Within weeks, however, Kruse was replaced by a Pakistani Muslim. The new manager fired Chapin within a month. In June, Kruse became the manager of Rohrman's newly opened Fort-Rohr dealership, also in Fort Wayne. He hired Chapin again as a used-car salesman. Chapin filed an EEOC charge in February of the following year. He alleged that Mid-States had discriminated against him on the basis of race. When Kruse found out about it, he was very upset. He met with Chapin and made it very clear to him that he needed to withdraw the EEOC charge if he wanted to keep his job. Although Chapin indicated at the meeting that he would withdraw the charge, he did not -- and he did not return to work. Kruse tried to contact Chapin on several occasions after the meeting. They finally met again in March. Kruse made it clear at that meeting that he had not intended to fire Chapin and that he still had a job. Chapin told him that he would return to work when he was finished with a painting project. The dealership followed up that meeting with several letters to Chapin stating that he was still employed and was expected to be at work. Chapin filed suit under Title VII, alleging racial discrimination against Mid-States and retaliation against Fort-Rohr. A jury found against him on his discrimination claim but found in his favor on the retaliation claim, awarding $1.1 million in compensatory and punitive damages. Fort-Rohr appeals.

In their opinion, Judges Flaum, Williams, and Sykes reversed and remanded. Title VII makes it illegal for an employer to take an adverse employment action against an employee for filing an unfair employment charge. The Court addressed both of Chapin's “adverse employment action” theories -- that he was actually discharged or that he was constructively discharged. On the former, the Court concluded that no rational juror could have found that Chapin was actually discharged at the first meeting with Kruse. The Court conceded that the exchange at the first meeting, in a vacuum, could support an argument for discharge, particularly if he filed suit the next day. Kruse was angry, raised his voice, and told Chapin that he would not have a job unless he withdrew the charge (which Chapin did not). However, the Court emphasized that the question must be addressed not in isolation but in the context of all subsequent interaction. All of the dealership's conduct after that short meeting is inconsistent with an actual discharge. In fact, Chapin's own testimony is that he was not fired at that meeting but that he would have been fired had he returned without withdrawing the charge. There was no actual discharge. With respect to the constructive discharge argument, the Court again concluded that no reasonable juror could find for Chapin. Two forms of constructive discharge are recognized in this Circuit and both require intolerable working conditions. In the first, an employee resigns because of discriminatory harassment -- that does not apply here. In the second, an employer acts in such a way as to communicate to a reasonable employee that he or she will be terminated. Again, Chapin may have had such a belief immediately after the first meeting but such a belief would have been corrected almost immediately in response to subsequent events and communications. Chapin simply decided not to return to work -- the Court refused to speculate on what would have happened had he decided otherwise.

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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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CHANEY v. PLAINFIELD HEALTHCARE CENTER (July 20, 2010)

Brenda Chaney, an African-American female, worked at the Plainfield Healthcare Center as a nursing assistant for three months in the summer of 2006. Plainfield's policy (possibly undertaken in a good faith belief that it was required by law to do so) was to acquiesce in its residents' racial preferences. Accordingly, every daily assignment sheet noted that particular residents preferred no African-American nursing assistants. Chaney also was the target of a number of derogatory racial comments during her employment. Plainfield did take corrective action when instances of racial remarks were reported. In September of 2006, Chaney and a coworker both refused to come to the aid of a resident. A nurse reported the incident and also reported that Chaney used profanity when she ultimately did respond. Although the unit supervisor's investigation and knowledge of Chaney led her to be skeptical of that charge, the director of nursing decided to fire Chaney. She was informed that the reason for her termination of employment was her use of profanity. Chaney brought an action under Title VII alleging a hostile work environment and an unlawful termination. Judge Barker (S.D. Ind.) granted summary judgment to Plainfield. Chaney appeals.

In their opinion, Judges Rovner, Williams, and Sykes reversed and remanded. The Court had "no trouble" concluding that Chaney's work environment was objectively offensive. It relied not only on the overt derogatory comments and the more subtle remarks supported by the record, but also the fact that the daily assignment sheet contained the racial restrictions. The Court rejected Plainfield's argument that its policy was reasonable and necessary to comply with law. Although recognizing that gender discrimination may sometimes be allowed to accommodate privacy interests, the Court stated that the same is not true for racial discrimination. The Court also concluded that Indiana law did not require the policy and, even if it did, federal law would trump the requirement. On a practical level, the Court recited a number of options an employer has when faced with racial hostilities. With respect to the discharge claim, the Court concluded that a reasonable jury could find that Plainfield's decision to fire Chaney was motivated by race. It relied on Plainfield's shifting justification for its action, the unusual way in which the incident investigation was conducted and concluded, and the absence of any disciplinary action with respect to the other nursing assistant involved in the incident.

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EVERROAD v. SCOTT TRUCK SYSTEMS (May 10, 2010)

David Scott owned and operated Scott Truck Systems, a commercial trucking company. Sherry Hantzis, his wife, was its general manager. In 2004, on Hantzis’ recommendation, Scott hired 51-year-old Diana Everroad as a dispatcher. Things did not go very well -- her supervisor complained, two large customers complained, and she had several run-ins with her coworkers. On the other hand, she was the target of several gender-based derogatory comments from those coworkers, one of which came during a conversation she secretly recorded. Within months, Scott and Hantzis created a new job for Everroad as a "data administrator." The hours and the pay were identical to her dispatcher job, but she had to share an office. Her officemate had a habit of making lengthy personal phone calls. Everroad’s complaints resulted in a meeting with Scott, Hantzis, and the officemate in an attempt to resolve the conflict. The meeting lasted a long time and became very tense. Everroad again secretly recorded much of the meeting. There was shouting, crying, eye-rolling, and accusations -- but the meeting did end with some constructive proposals. Scott and Hantzis were upset with Everroad's conduct during the meeting and considered it insubordinate. They were still considering their options when, upon arrival at the office the next morning, Everroad ignored Hantzis' greeting and overreacted to Scott's greeting. Scott terminated her employment at the end of that workday. Everroad sued Scott Truck for gender discrimination and retaliation under Title VII and for age discrimination and retaliation under the Age Discrimination in Employment Act (ADEA). The district court granted summary judgment to Scott Truck. Everroad appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Rovner affirmed. The Court first rejected Everroad's complaint that the district court erred in refusing to consider the transcripts of her secretly recorded conversations. First, Everroad never actually submitted the tapes themselves, only the transcripts. Second, the Court found the transcripts demonstrated that the conversations were, in large part, incomprehensible. Addressing the merits, the Court accepted as fact that Everroad could establish that she was a member of a protected class and that she suffered an adverse employment action for both the gender and age discrimination claims. The Court nonetheless rejected her discrimination claims: a) because of her insubordination, she was unable to meet the job performance prong of the test and she was unable to identify a similarly situated employee (i.e., another insubordinate employee), and b) she was unable to present evidence undermining the sincerity of Scott's nondiscriminatory reason for terminating her (her insubordination). The Court also rejected her retaliation claims: a) her claim that she was transferred because of her complaints about some derogatory comments fails because she never raised it in the district court, the transfer was not an adverse employment action, and there was no evidence that she complained to Scott or Hantzis, and b) her claim that she was terminated for complaining about a different derogatory remark fails because the remark was made a year prior to her termination and she presented no evidence establishing a causal connection between the two.

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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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SWEARNIGEN-EL v. COOK COUNTY SHERIFF'S DEPARTMENT (April 22, 2010)

Swearnigen-El was a black male guard in the women's division at the Cook County Jail. He had a run-in with the head of the division, who wanted the correctional staff in the women's division to be comprised totally of women. Swearnigen-El thought that belief was discriminatory and he reported his concerns to other supervisors. Shortly thereafter, Swearnigen-El found himself in trouble when a female prisoner's allegations that male guards were engaged in sexual activity with female prisoners launched an investigation. The Sheriff's Police conducted the initial investigation, followed by an investigation by the State's Attorney’s office. Several prisoners reported that Swearnigen-El was having sex with a female prisoner. The prisoner herself admitted the activity. Swearnigen-El was de-deputized and transferred for violating a General Order that forbids "activities unbecoming" an employee. He was later charged with sexual misconduct and suspended with pay. Before he had a termination hearing with the merit board, Swearnigen-El resigned. After he was acquitted of the criminal charges, he filed a complaint alleging gender discrimination, race discrimination, Title VII retaliation, First Amendment retaliation, malicious prosecution, and intentional infliction of emotional distress. The district court dismissed the Title VII retaliation claim and granted summary judgment to the defendants on all other claims. Swearnigen-El appeals.

In their opinion, Judges Wood, Evans, and Sykes affirmed. The Court first upheld summary judgment on all gender and race discrimination claims because there was no adverse employment action. Swearnigen-El was de-deputized and transferred after a internal investigation demonstrated evidence of misconduct. His pay was not affected and there was no evidence that the conditions were intolerable. The Court concluded that no reasonable jury could find a constructive discharge under those circumstances. Alternatively, the Court found that Swearnigen-El a) failed to establish sufficient evidence of race or gender discrimination to create a triable issue, and b) was not meeting his legitimate job expectations. Next, the Court considered the First Amendment retaliation claim. The principal speech at issue was Swearnigen-El's disagreement with his superior regarding the staffing of the women's division and his subsequent complaints to other officials that her actions constituted discrimination. The Court concluded that the speech was not protected -- Swearnigen-El was speaking not "as a citizen" but as a public employee under Garcetti. Again, the Court came to the alternative conclusion that no reasonable juror could find the defendants' actions pretextual. On the claim of malicious prosecution, the Court found sufficient evidence of misconduct after the investigation to establish probable cause. Since the absence of probable cause is an element of a malicious prosecution claim, Swearnigen-El's claim must fail. Finally, the Court agreed that there was no "outrageous" conduct that would amount to an intentional infliction of emotional distress claim and upheld the district court's dismissal of the Title VII retaliation claim on the ground that Swearnigen-El failed to include it in his EEOC charge.

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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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PATTERSON v. INDIANA NEWSPAPERS, INC. (December 8, 2009)

Lisa Coffey and James Patterson were both employees in the editorial department of The Indianapolis Star in 2003 when Dennis Ryerson was named editor. Both describe themselves as "traditional Christians" opposed to homosexuality on religious grounds. Both believe that Ryerson's opposing view was somehow responsible for their employment troubles. Neither, however, had particularly stellar employment records. Coffey regularly violated the newspaper's overtime rule. She ultimately left the newspaper when a restructuring left her with the choice of a part-time editorial job or a full-time copy-desk job -- when what she wanted was a full-time editorial job. Patterson's issues were more substantive. His writing was weak and he made frequent, serious mistakes. After many warnings, Patterson was fired. Coffey and Patterson brought suit. They both alleged violations of Title VII for discrimination on the basis of religion. Patterson also alleges age and race discrimination, in violation of Title VII and the Age Discrimination and Employment Act (ADEA), and retaliation for filing an EEOC complaint. Finally both plaintiffs include a claim for negligent infliction of emotional distress. The court granted summary judgment against both plaintiffs. Coffey and Patterson appeal.

In their opinion, Judges Cudahy, Flaum and Sykes affirmed. Although the Court noted the parties' sharply diverging views of the facts in some respects, it ultimately found no reason to resolve them. Both plaintiffs were required to establish that they met their employer's legitimate performance expectations and that they were treated less favorably than a similarly situated employee. With respect to Coffey, the Court concluded that she failed to establish her prima facie case. First, the evidence of her regular violation of the overtime policy was undisputed. Second, she failed to identify any similarly situated employee, much less one who was treated more favorably. Patterson suffered the same fate. All of his discrimination claims (religion, race, and age) and his retaliation claim require that he prove that he was meeting the newspaper's expectations. To the contrary, the record contains his long history of performance problems. Finally, the Court rejected the state law negligent infliction of emotional distress claims. Indiana law requires a "direct physical impact" to recover for emotional distress -- losing a job does not qualify.

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MILAM v. DOMINICK'S FINER FOODS (December 7, 2009)

Ahmad Milam is one of several African-American produce clerks at a Chicago Dominick's grocery store. Each week, Dominick's posts the produce clerks’ schedule of hours for the upcoming week. A more-senior produce clerk is allowed to "claim" the hours of a less-senior clerk. Milam and five other African-American produce clerks filed suit against Dominick's, claiming that it was guilty of race discrimination when it classified two more junior white women as produce clerks but did not include them on the schedule. The court granted summary judgment to Dominick's on the ground that plaintiffs had no evidence of damages. Plaintiffs appeal.

In their opinion, Judges Posner, Kanne and Rovner affirmed. The Court was quite critical of the district court's handling of the case. It noted that one of the women at issue was actually never a produce clerk. Although she had been offered and accepted a promotion to produce clerk, she changed her mind and never was scheduled to work as one. Dominick's presented evidence years ago that the failure to list the second woman on the produce clerk schedule was an innocent mistake. Plaintiffs never challenged the evidence as pretextual. The court should have granted summary judgment to Dominick's. With respect to the eventual order of the district court, the Court agreed that the plaintiffs presented insufficient evidence of either actual or probabilistic injury. The Court conceded that the plaintiffs' probabilistic injury theory was a proper damages theory. It requires, however, evidence of the expected benefit – which was never presented. In the end, the Court termed the case frivolous.

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MCGOWAN v. DEERE & CO. (September 11, 2009)

William McGowan, an African-American male, had over 20 years of employment at Deere & Company when he injured his back. He eventually underwent surgery. He returned to work with a 25-pound weight restriction imposed by the company doctor. His surgeon and physical therapist both cleared him, on separate occasions, to return to work with less onerous restrictions. The weight restriction prevented him from returning to his prior job and also disqualified him from two other positions. McGowan brought an action under Title VII and § 1981, complaining of Deere's refusal to reinstate him and refusal to select him for the other positions. The district court granted summary judgment to Deere. McGowan appeals.

In their opinion, Judges Flaum and Williams and District Judge Lawrence affirmed. The Court first noted that the elements and proof necessary for Title VII and § 1981 are essentially identical. McGowan proceeded under the indirect approach, in which he had to prove, among other things, that other persons similarly situated but not in his protected class were treated more favorably. The similarly situated test, said the Court, is a flexible test. The purpose is to identify a sufficient number of common factors between the claimant and others in order that a meaningful comparison can be made. The critical comparators here are job duties and weight restrictions. The court concluded that McGowan did not provide sufficient evidentiary basis for either job duties or weight restrictions on the employees that the proffered as similarly situated. He therefore failed to make a prima facie case. Alternatively, the Court concluded that McGowan failed to produce any evidence that Deere's stated reasons for its decisions were discriminatory.

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DEAR v. SHINSEKI (August 20, 2009)

Deborah Dear, an African-American woman, had impressive educational and employment credentials when she was hired by a Veterans Affairs hospital in 2004. She continued to do well and received positive evaluations for a few years. In 2006, however, her supervisor discovered that the morale in her department was very low and staff members were complaining about Dear’s supervision. The supervisor also witnessed Dear engage in inappropriate discipline. Another supervisor asked Dear to develop and submit a plan for improving the situation. Dear did develop and submit a plan -- but it was late and failed to address many of the issues. Dear was temporarily reassigned to a non-supervisory position with a decrease in salary. She was replaced by a white woman. Dear filed an EEO complaint alleging race discrimination. Several days later, she was permanently reassigned to a staff nurse position. Dear filed a lawsuit pursuant to Title VII, alleging race discrimination, retaliation and hostile work environment. The district court granted summary judgment to the defendant. Dear appeals.

In their opinion, Judges Cudahy, Ripple and Wood affirmed. The Court addressed Dear’s discrimination claim under the indirect method of proof. The parties did not dispute that Dear was in a protected class and that her reassignment was an adverse employment action. The Court addressed the other two elements: whether she was meeting her employer's legitimate expectations and whether she identified a similarly situated employee who was treated more favorably. The Court concluded that she met neither element. With respect to meeting expectations, Dear relied on her impressive education and employment history. While those may be relevant, the Court emphasized that it must look to her performance at the time of the adverse employment action. The record contained several instances of her failure to meet expectations at the time of her reassignment. Dear also failed to meet her burden of identifying a similarly situated employee who was treated differently. The same two shortcomings prevent her from avoiding summary judgment on her retaliation claim. Finally, with respect to her hostile work environment claim, the Court noted that there was little support in the record for her contention that the environment was hostile to African-Americans.

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ANTONETTI v. ABBOTT LABORATORIES  (April 21, 2009)

Five technicians employed by Abbott Laboratories left in the middle of their shift one Saturday and went to breakfast. On the following Monday, Scott Antonetti (a white male), Jerald Fuhrer (a white male), Cindy Nadiger (a white female) and Marvin Gloria (a Filipino male) each told a supervisor that he or she had not taken a meal break. Relying on these statements, the supervisor overrode Abbott’s payroll system so that they would be paid as if they had not taken an unpaid break. Juan Luna (a Hispanic male), the fifth employee, did not work on Monday and did not have any communication that day with the supervisor regarding his Saturday shift. Nevertheless, the supervisor overrode the payroll system for Luna as well.

A few months later, Abbott began to investigate instances of employees leaving their weekend shifts for meals. When asked, Luna admitted that the five of them had left Abbott’s campus on that Saturday for breakfast. When the investigators questioned the other four, they stated they did not remember going to the off-site breakfast that day. Because working the Saturday overtime shift and leaving Abbott’s premises in the middle of a shift was unusual, the investigators found it implausible that the four employees did not remember going off-site for a meal during a Saturday overtime shift. In addition, they could remember other details about the Saturday overtime shift. Furthermore, one of them later changed his story and confessed, supposedly on behalf of all of them, to attending the off-site breakfast. Antonetti, Fuhrer, Nadiger and Gloria were terminated for time card fraud. Luna was not terminated. Antonetti, Fuhrer and Nadiger filed suit, claiming they were terminated on account of their race (Caucasian) and national origin (United States). Nadiger also claimed that she was terminated in retaliation for her complaints of sex discrimination. Gloria did not file suit. The district court entered summary judgment in favor of Abbott, finding the plaintiffs could not establish a prima facia case of race or national origin discrimination. The plaintiffs appealed.

In their opinion, Judges Bauer, Posner and Williams affirmed. The Court first addressed the elements necessary to present a prima facie case of discrimination under both Title VII and 42 U.S.C. § 1981. The Court stated that plaintiffs must prove that: 1) they are members of a protected class; 2) they were performing their jobs satisfactorily; 3) they suffered an adverse employment action; and 4) similarly situated employees outside of their protected class where treated more favorably. Focusing on the fourth element of the discrimination claim, the Court found that the non-terminated employee, Luna, was not similarly situated to the plaintiffs for two reasons. First, Luna never told his supervisor that he did not take a break on the Saturday in question. Second, and most importantly, Luna told the truth when he was approached by the investigator about the off-site meal. Since the plaintiffs could not point to a similarly situated employee who was treated more favorably, their claim failed.

Addressing Nadiger’s Title VII claims that she was terminated in retaliation for her past and possible future complaints of sex discrimination in relation to being denied a promotion, the Court stated that there must be a causal link between her complaints of sex discrimination and her termination. The Court found that even if Abbott was partially motivated by Nadiger’s complaints of sex discrimination, it would have nonetheless fired her for time card fraud. Since Abbott had an independent and legitimate reason for firing Nadiger, her separate claim fails as well.

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JACKSON v. CITY OF CHICAGO (January 13, 2009)

George Jackson was a carpenter in the Public Works Department in the City of Chicago from 1987 until 2003, when he was promoted to foreman. In 2004, the City announced the availability of two jobs as general foreman of general trades – one each in the Departments of Transportation and General Services. Jackson applied for both jobs. He was offered neither. The City promoted Michael Blake to the Department of Transportation job. Blake had more experience as a carpenter, had more experience estimating the material and manpower needs of a project, and significantly outscored Jackson on a written test of communication skills. The City promoted Kevin O’Gorman to the Department of General Services job. O’Gorman received the highest combined score for the interview and work sample. Jackson did not even submit a work sample. Jackson brought an action against the City. He alleged race and age discrimination under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. The court granted summary judgment to the City. Jackson appeals the Title VII race discrimination judgment.

In their opinion, Judges Kanne, Evans and Sykes affirmed. The Court noted that Jackson was proceeding under the indirect method of proof. The first requirement of that indirect method is to establish a prima facie case of discrimination. The Court recited the elements of the prima facie case: a) he is a member of a protected class, b) he is qualified for the position, c) he was rejected, and d) the position was given to a person not in the protected class who was less or similarly qualified. Thus, if a job is given to a better qualified individual, the plaintiff’s case must fail. The Court concluded that both promotions were awarded to better qualified individuals. Jackson argued that his qualifications suffered in comparison to the others because the City had discriminated against him in the past by denying him training opportunities. The Court rejected Jackson’s approach. First, Jackson never filed an EEOC charge involving training opportunity discrimination, a prerequisite to a Title VII action. Second, to the extent Jackson argued that the discrimination in training opportunities was not an independent claim but merely support for his primary claim, the Supreme Court’s recent decision in Ledbetter v. Goodyear disposes of that theory. The 2004 acts were not discriminatory. Under Ledbetter, a new violation does not occur at the time of later non-discriminatory acts, even if they have adverse effects resulting from past discrimination.

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