Speech Limitation Based On Speaker's Identity Is A Content Based Restriction

SURITA v. HYDE (December 22, 2011) 

Waukegan, Illinois enacted an ordinance in 2002 pursuant to which the police could impound a vehicle if its driver was caught driving without a license or proof of insurance. The ordinance was very unpopular in the city, particularly among the minority population. At a large rally in 2004, José Surita confronted a city official. The official complained to the Mayor that Surita was very angry and that she feared a physical attack. Two days later, Surita attempted to speak during "audience time" at a City Council meeting. The Mayor refused to let him speak until he apologized to the official. The Mayor did allow others to speak on a variety of topics, including the towing ordinance. Margaret Carrasco also opposed the ordinance. When the Chief of Police heard that she was going to conduct a rally, he sent a police officer to her home to request a meeting. She came to a meeting where she was asked to comply with the City's Assembly Ordinance. A city attorney advised her that she would have to pay a permit fee of $1500 to pay for the extra police officers that the Chief determined would be needed. The City imposed a permit fee requirement on only 2 of 530 events over the last five years, both involving towing ordinance protests. The rally was never held. Chris Blanks also opposed the ordinance. Blanks was organizing a rally to be held in one of the City's parks, which are not covered by the Assembly Ordinance. Nevertheless, when the city attorney learned that Blanks did not have a permit, she sent a police officer to his home with a letter telling him that he was violating the Assembly Ordinance. Blanks cancelled the rally. Surita, Carrasco, and Blanks brought suit against the City, the Mayor, and the Police Chief, alleging First Amendment violations. Judge Shadur (N.D. Ill.) denied the requests for qualified immunity by the Mayor and the Police Chief. The Mayor and the Police Chief appeal.

In their opinion, Seventh Circuit Judges Manion (concurring in part and dissenting in part) and Williams and District Judge Clevert affirmed the qualified immunity denials with respect to Surita's and Carrasco's claims but reversed the denial with respect to Blanks’ claims. The Court first addressed its appellate jurisdiction since no final judgment was entered below. When the district court's summary judgment order is one denying qualified immunity, it is immediately appealable if the appeal can be resolved without resolving a disputed question of fact. The question on qualified immunity is whether the defendants' actions violated a constitutional right that was clearly established at the time. With that foundation, the Court turned to each plaintiff’s claim. With respect to Surita’s claims against the Mayor, the Court first noted that "audience time" is a designated public forum under First Amendment law and that, therefore, any content-based restriction on speech is subject to strict scrutiny. Here, defendants argued that the restriction was not content-based since others spoke out against the ordinance at the same meeting. But restrictions based on the identity of the speaker are content-based as well. Since the restriction was content-based, it had to be narrowly tailored to effectuate a compelling state interest and there was no evidence that it was. It was, in fact, a sanction for Surita’s earlier speech and behavior. The Court therefore concluded that there was a First Amendment violation. The Court then had little difficulty in finding that the constitutional right was well-established. The Court turned to Carrasco's claims against the Chief of Police. The Court first determined that the Chief was involved enough in the conduct to be personally liable. He called the meeting with Carrasco, he sent an officer to her home, and he computed the amount of extra police support that translated into the amount of the fee. There is nothing necessarily wrong with charging a fee even for the use of a traditional public forum -- but it must be content neutral. Under Forsyth County, a content-based flexible fee is unconstitutional. Here it is undisputed that the Chief took content into consideration. He testified that he needed more police support for a rally protesting the ordinance then he would for one in support of the ordinance. There was a constitutional violation and it was clearly established at the time of the meeting. Carrasco also claimed that the Chief retaliated against her for prior speech. The Court concluded that there were genuine issues of material fact with respect to the qualified immunity test in this context and so it could not be determined on appeal. Finally, the Court turned to Blank's claims against the Chief. Here, the Court determined that the Chief was not sufficiently involved in the City's conduct to support personal liability. It was the city attorney, not the Chief of Police, that applied the Assembly Ordinance to Blanks. Although the Chief received copies of the attorney's correspondence to Blanks, that is not enough to establish personal liability.

Judge Manion wrote separately, concurring in the majority's treatment of Surita’s claims and Blank’s claims but disagreeing with its treatment of Carrasco's claims. Judge Manion believed that the record did not support a finding of personal liability with respect to Carrasco’s claims against the Chief. It was the city attorney, not the Chief, that was principally involved in applying the Assembly Ordinance to Carrasco. The undisputed evidence is that the Chief did not know that the city attorney was going to impose the fee.

Tenured Professors Are Not "Similalry Situated" To Non-Tenured Ones

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.

"For Cause" Language In Probationary Employee's Employment Agreement Did Not Create Property Interest

REDD v. NOLAN (November 29, 2011)

Samone Redd was a probationary correctional officer with the Cook County Department of Corrections in May of 2007 when she witnessed an altercation in which a friend was involved. When the friend later complained that she was hit in the face with a beer bottle during the altercation, the Chicago Police investigated. Redd was initially cooperative. The officers investigating the case later found her to be uncooperative and filed a complaint that she was failing to cooperate in an ongoing investigation. Redd alleges that her "failure to cooperate" was simply her refusal to go along with the officer’s request that she lie. The Sheriff’s Department investigated the charges against Redd and eventually sustained several of them. The results of the investigation ended with a recommendation that the Department terminate Redd. On October 31, just 13 days before her probationary employment would end, Redd was told that she would be discharged if she did not resign. She chose to resign. Redd brought suit against the original investigating officer for tortiously interfering with her employment. She also sued the County for First Amendment retaliation, retaliatory discharge, and procedural due process. The City claim was dismissed for failure to state a claim and Magistrate Judge Denlow (N.D. Ill.) granted summary judgment to the County on the remaining claims. Redd appeals.

In their opinion, Seventh Circuit judges Posner, Flaum, and Hamilton affirmed. With respect to the intentional interference claim, the Court noted that Redd alleged that the complaint with the County was made not by the officer, but by an Assistant State's Attorney. Although she tries to create liability on the part of the officer by alleging a conspiracy, she offers no facts to support the allegation. The Court turned to her First Amendment retaliation and state retaliatory discharge claims. It agreed with the district court that Redd presented no evidence from which a jury could conclude that the County's actions were in retaliation for her conduct during the investigation. The Court went on to note that, even in such had been presented, the investigator was not part of the termination decision. Finally, the Court turned to her due process argument. On its face, the argument seemed to lack merit. Redd was still a probationary officer and possessed no protectable property interest in continued employment under Illinois law. But Illinois courts have concluded that a municipal body can afford more protection than required by Illinois law -- all that is required is a "clear policy statement." In Redd's employment agreement, she confirmed that she was "on probation and can be terminated for cause." Notwithstanding the "for cause" language in the terms of her employment, the Court concluded that the phrase was not a sufficiently clear policy statement to provide protection amounting to a property interest. Since she had no protectable property interest, she was entitled to no particular procedures.

Employer's Post-Resignation Statements Are Not Evidence Of Hostile Work Environment Or Discrimination

OVERLY v. KEYBANK NATIONAL ASSOCIATION (November 10, 2011)

Krysten Overly was a financial advisor at KeyBank in central Indiana. Rick Bielecki became her immediate supervisor in early 2007 but their interaction was limited because of his broad regional supervisory obligations. One day, while he was working with her, he observed that she was using procedures that were not in compliance with the Bank's policies. After an investigation, the compliance office recommended her termination. With Bielecki’s and his supervisor’s support, Overly escaped with a warning and a small fine. Overly complained to the Human Resources Department about the disciplinary action as well as some sexist remarks she alleged were made by Bielecki. The Bank reorganized beginning in 2007 and almost tripled the number of financial advisors nationwide. Bielecki added one advisor to Overly's region and realigned branch bank assignments. Overly registered a complaint with KeyBank's CEO. She cited the disciplinary action and the sexist remarks, as well as the loss of territory. The Bank conduct an investigation and concluded that there was no evidence of discrimination or retaliation. Overly submitted her resignation to Bielecki on October 1, 2007. Upon receipt of the resignation, Bielecki applauded, pushed her toward the door, and yelled "Good Riddance Bitch." Overly filed suit alleging hostile work environment, constructive discharge, and gender discrimination. Judge Barker (S.D. Ind.) granted summary judgment in KeyBank's favor. Overly appeals.

In their opinion, Seventh Circuit Judges Evans (who, as a result of his death, took no part in the decision) and Williams and District Judge Conley affirmed. The Court first addressed the hostile work environment claim and concluded that Overly's work conditions did not meet the "severe or pervasive" requirement. Bielecki called her "cutie" five or 10 times, referred to her "pretty face," and made her leave her purse outside of a meeting room. None of this was threatening, it did not occur very frequently, and it did not unreasonably interfere with her work. The Court conceded that adding the disciplinary incidents to the mix might approach the actionable level, but declined to do so because there was no evidence that the discipline was related to her gender. Furthermore, she admitted the noncompliant activities. Likewise, the territory realignment was not shown to be related to gender. The Court acknowledged that there was evidence of gender bias after her resignation. But Bielecki's conduct and remarks after receiving her resignation cannot support a hostile work environment claim. The Court quickly dispensed with her constructive discharge claim since it imposes a higher standard than the hostile work environment claim - which it had just rejected. The Court also rejected the gender discrimination claim, again refusing to consider the resignation remarks as direct or circumstantial evidence of discrimination because of the timing of those remarks. Finally, the Court rejected her Title VII retaliation claim. Her complaint to the Bank does constitute protected activity but there is no evidence in the record of a causal link between the activity and Bielecki's conduct.

Front Pay Unavailable When Reason Reinstatement Was Precluded Was Unrelated To The ADEA Discrimination

BARTON v. ZIMMER, INC. (October 18, 2011)

Zimmer, Inc. sells artificial hips and knees. It employed Bruce Barton as part of its sales force since 1993. Andy Richardson became Barton's supervisor in 2004. Richardson eliminated many of Barton's duties over the course of the next year, most likely due to age discrimination (conceded, for purposes of argument, by Zimmer). Barton complained to Human Resources representative Richard Abel after a negative May 2005 performance review. Able investigated the situation, met with Barton and Richardson, and ultimately recommended that Richardson be fired for his divisive leadership. In the meantime, Barton had been on vacation,FMLA leave, and paid administrative leave. In September, Barton returned and began reporting to Sherri Milton. Barton complained about the assignments he received from Milton and filed an EEOC charge, alleging that the assignments were in retaliation for his earlier EEOC charge against Richardson. After Milton criticized his performance, Barton suffered a mental breakdown. He used up his FMLA leave, as well as his short and long-term disability benefits. The Social Security Administration granted a total disability benefits claim and Burton retired from Zimmer. Barton filed suit against Zimmer for ADEA discrimination and retaliation and FMLA interference. Judge Springmann (N.D. Ind.) granted summary judgment to Zimmer. In part, she concluded that Barton could not prevail on his ADEA claim because he was only seeking front pay, not reinstatement. Barton appeals.

In their opinion, Seventh Circuit Judges Evans (who, as a result of his death, took no part in the decision), Sykes, and Hamilton affirmed. The Court first addressed the Richardson ADEA claim. It disagreed with the district court's conclusion that front pay is not available because of the statute's compensatory damages exclusion. In Pollard, the Supreme Court held, in the context of Title VII, that front pay could be an appropriate substitute for reinstatement if the reinstatement remedy was not viable as a result of psychological injuries caused by the discrimination. The Court assumed that the Pollard Title VII approach would apply in an ADEA case but concluded that Barton was not entitled to it. Here, Barton’s psychological injuries that precluded his reinstatement arose out of the job assignments from Milton, not from Richardson. The Milton job assignments were not the result of any age discrimination. The Court turned to the ADEA retaliation claim. To prevail, Barton was required to show a statutorily protected activity, a materially adverse employment action, and a causal relation between the two. The Court concluded that Barton's challenging new job assignment was probably not a materially adverse employment action but that, even if it was, no reasonable jury could conclude that Milton assigned the task to him in retaliation for his protected activity. The project was important to the company and Barton's work history showed that he was qualified to complete it. Finally, the Court addressed the FMLA interference claim. The FMLA requires employers to restore an employee to his prior or equivalent position upon the termination of leave. It is true that Barton was not returned to his prior position since most of his duties had been eliminated and the few projects he had were completed. The record supports, however, the conclusion that Zimmer assigned him to the same duties he would have had he not taken leave. The FMLA requires no more.

Two Plausible Explanations For Firing Preclude Summary Judgment

EGAN v. FREEDOM BANK (October 6, 2011)

Freedom Bank president Greg Dempsey hired Belinda Egan as a vice president in July 2007. According to her complaint, Egan met with Don Burton, a bank director, at his request several times over the next few months. At one of those meetings in September, Burton told Egan that he thought she should be the next bank president and that the directors had the power to fire anyone on the management team. He then made a sexual advance. Egan left but later discussed the conversation with Dempsey and Human Resources. Burton resigned shortly thereafter. The bank hired Dave Barajas to replace Greg Dempsey as president. According to Dempsey, Barajas told him that he had heard that Egan had done something for which she should have been fired. Barajas took over in December and hired four new employees over the next several months. Then, in February of 2008, Barajas told Egan that he had eliminated her position. Egan brought suit for retaliation, hostile work environment, and gender discrimination. Judge Reinhard (N.D. Ill.) granted summary judgment to the Bank. Egan appeals.

In their opinion, Seventh Circuit Judges Manion, Williams, and Hamilton reversed and remanded. The Court first addressed the retaliation claim, which Egan prosecuted under the direct method of proof. The parties agreed that she engaged in statutorily protected activity and suffered an adverse action. The only issue was whether she introduced sufficient evidence of a causal connection between her report of Burton's sexual advances and her termination. Although the Court found the Bank's explanation plausible, it concluded that it was not the only plausible explanation. Several things supported Egan's contention: Barajas' remark to Dempsey, the fact that Egan’s was the only position eliminated while four other positions were filled, and the fact that there were no complaints about her performance. Since a reasonable jury could conclude that the Bank fired her in retaliation for her complaint, the summary judgment was reversed. The Court affirmed summary judgment on both the hostile work environment (a single sexual overture does not establish hostile work environment)and gender discrimination claims (Egan failed to develop this claim below). Finally, the Court concluded that it lacked jurisdiction over a magistrate judge's sanctions order that Egan challenges. The magistrate judge has only the power to recommend a sanction (since there was no consent to proceed before the magistrate judge). Since the district court judge never addressed the recommended sanction, it is not reviewable on appeal.

Complaint Does Not Amount To Protected Activity Without A Reasonable Belief That Conduct Violated The Law

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.

Record Supports Poor Performance, Not Discrimination, As Reason For Termination

DICKERSON v. BOARD OF TRUSTEES (September 16, 2011)

The Belleville Area Community College District 522 has employed Robert Dickerson, who suffers from a mild mental impairment, as a part-time janitor since 1999. He unsuccessfully applied for full-time positions in 2005, 2006, and 2007. In October of 2007, he complained, both at a Board meeting and to the District's attorney, that he was the victim of discrimination. Less than two months later, the District conducted its first formal evaluation of Dickerson's work performance and gave him an overall Unsatisfactory rating. Dickerson disagreed with the evaluation and filed a union grievance and an EEOC charge. The District conducted a second review six months later and found his performance still Unsatisfactory. Although the District fired Dickerson in September of 2008, it later reinstated him. A union arbitrator ruled that the termination violated the collective bargaining agreement. Dickerson brought suit alleging that the District's failure to promote him, its negative evaluations, and its termination all violated the Americans with Disabilities Act. Judge Murphy (S.D. Ill.) granted summary judgment to the District. Dickerson appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Bauer and Williams affirmed. The ADA makes it illegal to discriminate against a disabled employee because of his disability. The Court addressed Dickerson's discrimination and retaliation claims together. It first concluded that neither claim could survive summary judgment under the direct method of proof. The Court concluded that the record established that it was Dickerson's work performance that was connected to his termination, not any discriminatory or retaliatory intent on the District’s part. The Court also addressed the claims under the indirect method of proof. Under that method, Dickerson had the burden to show that he was meeting the District's legitimate employment expectations. The Court noted that the record was replete with evidence of Dickerson's unsatisfactory work performance. Dickerson failed to create an issue fact with respect to satisfactory performance. Summary judgment was proper.

Pregnancy Complication Is Not A Substantial Limitation On A Major Life Activity Under The ADA

SEREDNYJ v. BEVERLY HEALTHCARE (August 26, 2011)

Beverly Healthcare hired Victoria Seredynj as activity director at its Golden Living nursing home in Valparaiso, Indiana in 2006. Included within Seredynj's duties were several that were physically strenuous. Other employees frequently helped Seredynj with those duties. Seredynj learned that she was pregnant in January of 2007. She informed her supervisor and continued with her normal tasks. After a few months, however, she developed complications. Her doctor told her not to engage in strenuous activities. Under Beverly's modified work policy, Seredynj was not entitled to any restricted or limited duty. She was therefore told that she would not be allowed to return to work until she was released to full duty. Beverly terminated Seredynj's employment in March. Her attorney soon thereafter requested an Americans with Disabilities Act or Pregnancy Discrimination Act accommodation. Beverly declined. Seredynj filed suit against Beverly alleging gender discrimination under Title VII, pregnancy discrimination under the PDA, disability discrimination under the ADA, and retaliation. Judge Miller (N.D. Ind.) granted summary judgment to Beverly. Seredynj appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judge Bauer and District Judge Young affirmed. The Court first addressed the PDA and Title VII claims. The legal analysis is the same for both. Seredynj proceeded under both the direct and indirect methods of proof. The Court rejected Seredynj's argument that Beverly's modified work policy, which only accommodates ADA-disabled employees, was evidence of discrimination. The PDA only requires that employers treat pregnant employees the same as non-pregnant employees. Beverly’s work policy does just that and is not direct evidence of discrimination. The Court also rejected her argument that Beverly's refusal to accommodate her, given that other employees frequently assisted her with strenuous tasks before her pregnancy, was direct evidence of discrimination,. The Court pointed out that voluntary assistance is materially different than a formal accommodation. The Court concluded that she failed under the direct method. Under the indirect method, Seredynj had the burden to show that a similarly situated non-pregnant employee was treated more favorably. None of the individuals suggested by Seredynj, however, were similarly situated. Her indirect claim must fail. Summary judgment was properly granted on the gender and pregnancy discrimination claims. The court turned to the ADA. It's first inquiry was whether she was disabled under the Act, an issue of first impression in federal appellate courts. Under the Act, a disability is either: a) a physical or mental impairment that substantially limits one or more major life activity, b) a record of such an impairment, or c) being regarded as having such an impairment. The Court addressed each possibility. First, although pregnancy is not an impairment, the Court concluded that a pregnancy with the complications experienced by Seredynj may be an impairment. The Court did not definitively resolve that issue, given its further treatment of the claim. The impairment at issue must substantially limit a major life activity. Generally short-term, temporary conditions do not meet the definition. Here, Seredynj’s condition did not even last as long as her pregnancy and did not affect her ability to conceive again. The Court therefore concluded that Seredynj was not disabled under the first possibility. For the same reasons, Seredynj was not disabled under the record of disability possibility. Finally, the Court stated that the record did not support any belief on Beverly’s part that Seredynj had such an impairment. Summary judgment in Beverly's favor on the ADA claim was therefore appropriate. The Court turned to the retaliation claim, which consisted of Seredynj's claim that Beverly looked for an opportunity to fire her after receiving her attorney’s letter seeking an accommodation. To prevail, Seredynj must prove that she suffered an adverse employment action. Since Beverly terminated her employment before it even received the attorneys letter, she cannot possibly do that -- summary judgment was proper.

Adverse Employment Action Based On Hostility Generally Does Not Amount To Gender Discrimination

BENUZZI v. BOARD OF EDUCATION (July 21, 2011)

Thirty years ago, the Chicago Public School System hired Jessica Benuzzi, a white woman now in her fifties, as one of its first female custodial assistants. A promotion in 2004 qualified her to be the senior custodian at a large school. She was granted a transfer to a school that was closed and undergoing major renovation -- and was scheduled to be opened as the John J. Pershing West Magnet School in the fall 2005. In March of 2005, however, the Board of Education named Cheryl Watkins as the new Pershing principal. Watkins is an African-American woman in her forties. From their first encounter, the two women did not get along. Over the next several school years, Benuzzi complains that Watkins refused to accommodate her request for a shift change, unfairly reprimanded her on numerous occasions, treated her very roughly, demanded a fitness for duty examination, and suspended her without pay on more than one occasion. Benuzzi filed a gender discrimination charge with the EEOC in October 2006. She updated the charges several times thereafter. She filed suit against Watkins and the Board in June 2009 alleging, among the things, gender discrimination and retaliation under Title VII. A few days after Watkins waived service, she reprimanded Benuzzi again. When Benuzzi wouldn't sign the reprimand, she asked the Board to remove her from the school. The Board refused. Watkins was present at Benuzzi's deposition on February 25, 2010. The very next day, Watkins restricted Benuzzi's presence at Pershing and also issued a Notice of Disciplinary action that referred to nine different instances going back several months. Judge Conlon (N.D. Ill.) granted summary judgment to the defendants. In doing so, she did not consider most of Benuzzi's factual submissions because their length violated a local rule. Benuzzi appeals.

In their opinion, Seventh Circuit Judges Flaum, Wood, and Tinder affirmed in part and vacated and remanded in part. The Court first addressed the district court's ruling on the factual submissions. It emphasized its support for local rules and a district court’s policy to insist upon strict compliance. The rule at issue here is 56.1, which requires that a party opposing summary judgment respond to the movant’s statement of facts in no more than forty "short numbered paragraphs." Benuzzi's filed forty paragraphs but her paragraphs sometimes ran as long as 18 lines. Apparently, the district court considered only four of Benuzzi's paragraphs. The Court expressed some concern about such a strict interpretation of the standard that uses the word "short." Since both sides acquiesced at oral argument to the Court's consideration of the entire record, the court did not need to decide if the 56.1 ruling was an abuse of discretion. On the merits, the Court first addressed her gender discrimination claim. One of the requirements for her to succeed on the claim is to show not only that the reasons for her suspensions were dishonest but that they were, in fact, based on discrimination. Benuzzi presented no evidence that gender bias had any impact on Watkins's decisions. Her gender discrimination claim must fail without that link. The Court turned to her retaliation claim. It quickly concluded that she satisfied the statutorily protected activity element and that her suspension without pay was a materially adverse action. The Court also concluded that the Notice of Disciplinary Action and memorandum restricting her hours could constitute a materially adverse action and left that question for a jury. The Court acknowledged that written warnings are generally not enough to constitute a materially adverse action but noted that the context here (numerous charges, for minor transgressions, going back several months, delivered the day after she was deposed) could lead a jury to conclude otherwise. Finally, the Court considered causation. Again, the Court thought that a jury should decide causation with respect to the Notice of Disciplinary Action. Suspicious timing is frequently not enough to establish causation. But here, where the gap was so short and there were no intervening events, a jury should decide. The Court decided that there was not enough causation evidence to send the retaliation claim to the jury.

Record Does Not Support Employee's Retaliation Claim

SMEIGH v. JOHNS MANVILLE, INC. (June 29, 2011)

For years, Aaron Smeigh was a model employee at Johns Manville. He had a spotless record. That changed in September of 2008. It was then that Smeigh severed his finger at work. While awaiting the arrival of an ambulance, Smeigh told his supervisor that he did not take drugs but that he might not be able to pass a drug test. He said it was because he had recently been in a room where marijuana had been smoked. The supervisor told the plant manager that Smeigh might not pass a drug test. In fact, Smeigh took a drug test at the hospital and it came back negative. The company considered whether Smeigh's statement violated Johns Manville's substance abuse policy. A human resources manager decided that it was. The company decided to allow Smeigh to keep his job if he entered into a Stipulation of Understanding. The stipulation would require him to meet with a counselor, submit to random drug and alcohol tests, and possibly pay for the tests. Smeigh refused to sign the agreement and the company fired him. After the union filed a grievance, the company offered to hire him back if he passed a drug test and agreed to be subject to random drug tests over two years. Again, Smeigh refused. A union secretary cleaned out his locker to separate company property from personal property. Someone apparently stole some of his personal property before it was returned to him. Smeigh brought suit for unlawful discharge in retaliation for filing a workers' compensation claim and for civil conversion under state law. Judge Pratt (S.D. Ind.) granted summary judgment to the company. Smeigh appeals

In their opinion, Judges Flaum, Evans, and Tinder affirmed. Although an employee can recover damages if he has been terminated for filing a workers' compensation claim, he must present evidence that his termination was solely in retaliation for filing such a claim. Here, Smeigh relies on indirect evidence of causation. In fact, he relies almost exclusively on timing. The Court noted the timing is rarely sufficient, by itself, to create a question of fact. In addition, here there is an intervening event -- his refusal to sign the stipulation. The Court noted that the record shows that the company actually submitted the workers’ compensation claim on his behalf, wanted him to sign the stipulation and retain his job, and was willing to reinstate him a few months later. No reasonable jury could find in his favor. The Court also affirmed on the conversion count. In order to prevail on such a claim, a plaintiff must prove criminal intent. Here, company policy required a company employee to clear out a terminated employee's locker, separate company property from personal property, and return the personal property. The record shows that the employee's control over Smeigh's property was authorized or, at least, she had a reasonable belief that it was. In addition, the only defendant is the company and there is no evidence in the record that the company knew that the employee continued to possess Smeigh's property and Smeigh did not argue vicarious liability. The Court chastised Smeigh for even including the conversion count in the appeal without even explaining his rationale for disagreeing with the district court's analysis. Notwithstanding its criticism, the Court declined to impose sanctions.

Title VII Supervisory Status Requires More Than Authority To Direct Daily Activity

VANCE v. BALL STATE UNIVERSITY (June 3, 2011)

Ball State University's Dining Services department has employed Maetta Vance for over 20 years. She was a substitute server from 1989-91, a part-time catering assistant from 1991-2007, and now is a full-time catering assistant. She filed a lawsuit against the University in 2006 alleging Title VII claims of hostile work environment and retaliation. She included several specific allegations of hostile work environment, including: a) co-worker Davis hit her, b) supervisor Kimes made her feel unwelcome, c) co-worker Davis threatened her, d) co-worker McVicker used a racial epithet, e) co-worker McVicker called her a "porch monkey," and f) supervisor Adkins made faces at her. The University responded each time she filed a complaint. It disciplined McVicker for using the epithet. On other occasions, it found no basis for discipline. Her retaliation allegations related to diminished work duties and denial of overtime, and a reassignment to menial tasks in connection with her promotion. Judge Barker (S.D. Ind.) granted summary judgment to the University. Vance appeals.

In their opinion, Judges Bauer, Wood, and Sykes affirmed. The Court first addressed Vance's hostile work environment claim. The elements of that claim are that the work environment is objectively and subjectively offensive, that the conduct was based on race, that it was either severe or pervasive, and that there was employer liability. With respect to employer liability, a plaintiff must either show that the harassment came from supervisors or that the employer was negligent in discovering or fixing the situation. The Court rejected supervisor liability. First, Davis was not her supervisor. Although other circuits have expanded the supervisor term to include persons with authority to direct daily activity, the Seventh Circuit has limited the term to those who have the authority to directly affect the terms and conditions of employment. Second, Adkins was her supervisor but did nothing more than make ugly faces at her. Third, Kimes was her supervisor and may have engaged in sufficient harassment to create employer liability but there was no evidence that his harassment was based on Vance's race. In the absence of supervisor harassment, the Court turned to co-worker harassment. It concluded that Vance could not establish that the University failed to take reasonable steps to discover and correct the harassment. Every time she made a complaint, the University investigated and responded appropriately. The Court turned to the retaliation claim. Ironically, Vance's retaliation claim is based on her promotion. She admitted that she received more pay and benefits but alleged that her responsibilities were diminished. The Court concluded that the promotion was not a materially adverse employment action. Although she may have enjoyed it less, she sought it out knowing that the responsibilities would be different from her prior position. The only other employee occupying the position had similar responsibilities. Finally, the Court rejected her claim that the University retaliated against her by giving her fewer overtime hours. Although she did work fewer overtime hours than her co-worker, the two were not similarly situated. Her co-worker worked more regular hours, was available more often, and took fewer sick days and leaves of absence.

Fact Issues Regarding Employer's View Of Disability Preclude Summary Judgment

MILLER v. ILLINOIS DEPARTMENT OF TRANSPORTATION (May 10, 2011)

The Illinois Department of Transportation hired Darrell Miller in 2002 as part of a bridge crew. The crew, which consisted of five employees, was responsible for a wide variety of tasks. Many of those tasks were performed at ground level, while some were performed at various heights above the ground or water. Miller had some fear of heights and there were a few jobs that he could not perform. For years, the crew worked as a team. IDOT allowed his other crew members to fill in for him on those few occasions when he could not do his assigned task. Other team members also had tasks they could not perform for various reasons and IDOT accommodated those limitations as well. In 2006, Miller was asked to do a task that he considered unsafe. He performed the task but filed a grievance. Just a few weeks later, his crew leader assigned him to a task that resulted in a panic attack. IDOT put him on sick leave. Its examiner diagnosed him with acrophobia and declared him unfit to work on the bridge crew. IDOT began treating Miller as unable to work at any height in excess of 20 feet. Miller filed a grievance and also requested an accommodation identical to that which he had enjoyed in the past. His request was denied and he was ordered to return to work. When he encountered an IDOT personnel manager, he commented to a colleague that he "would like to knock her teeth out." Miller was told to go home and was later discharged for threatening violence against another employee. After an arbitration, he returned to work but without back pay or benefits. Miller filed suit under the Americans with Disabilities Act. He alleged discrimination arising from the refusal to provide accommodation and his termination. He also alleged retaliation. Judge Stiehl (S.D. Ill.) granted summary judgment to IDOT on both counts. Miller appeals.

In their opinion, Judges Posner, Rovner, and Hamilton reversed and remanded. The ADA protects only those individuals with a disability. But disability is defined in the statute as not only having a significant impairment but also being regarded as having such an impairment. A substantial limitation on being able to work qualifies as such an impairment. Since Miller did not claim to be actually impaired, his challenge was to present evidence that IDOT regarded him as substantially limited in his ability to perform a wide range of jobs. The Court noted that the regulations require consideration of several factors, including the nature and severity of the impairment, its duration, and its longer-term impact. The Court concluded that Miller presented sufficient evidence to allow a jury to find that IDOT regarded him as limited in his ability to do a substantial number of jobs. Summary judgment on the discrimination claim was improper. On the reasonable accommodation claim, the Court also found issues of fact that should have gone to the jury. Although working at heights in extreme positions is an essential element of the crew's work, the Court concluded that a reasonable jury could find that it was not an essential element of any individual crew member's work. The Court cited the history of team accommodations in the record. A reasonable juror could also find that Miller's request for an accommodation was reasonable. Finally, on the retaliation claim, the Court found that Miller presented sufficient evidence going to IDOT’s honesty to get to a jury. The Court cited an example of a similar violent outburst that was not disciplined, the agency's general hostility towards accommodations, and the ambiguity of the threat itself.

Teacher Unable To Show Causal Relationship Between Pregnancy And Adverse Employment Actions

SILVERMAN v. BOARD OF EDUCATION (March 21, 2011)

Amy Silverman taught special education at a Chicago public high school during the 2004-2005 school year. Because she was a probationary teacher, her contract was subject to annual renewal. In early 2005, the Board of Education decided to eliminate a special education teacher slot at her school. The principal decided not to renew Silverman's contract. Silverman was pregnant at the time. She complained to the EEOC. A few months later, the Board offered her a position at the same school for the 2005-2006 school year. Silverman accepted the position, although she thought it was a more difficult assignment. The Board did not renew her contract for the 2006-2007 school year. Silverman brought suit under Title VII, alleging that the Board discriminated against her as a result of her gender by not renewing her contract when she was pregnant and also retaliated against her, after she filed an EEOC charge, by offering her a more difficult assignment and, again, not renewing her contract. Judge Manning (N.D. Ill.) granted summary judgment to the Board. Silverman appeals.

In their opinion, Circuit Judges Tinder and Hamilton and District Judge Murphy affirmed. Before addressing the merits, the Court rejected Silverman’s argument that the district court erred by not considering the EEOC's reasonable cause finding. A district court has much discretion in how it treats a reasonable cause determination. On the merits, the Court noted that Silverman chose to proceed under both the direct and indirect methods of proof. Silverman had no direct evidence of discriminatory intent so she attempted to create a "convincing mosaic" of circumstantial evidence under direct method. She attempted to do so almost exclusively with what these she thought was evidence of suspicious timing and her principal’s ambiguous comment regarding her maternity leave. The Court was not convinced. First, suspicious timing is rarely enough by itself. Second, although the principal decided not to renew Silverman's contract shortly after learning of her pregnancy, the Board’s records actually show that the principal decided to renew her contract on two separate occasions after learning of her pregnancy. The decision not to renew only came after the Board decided to eliminate a position. With respect to the indirect method, the Board stipulated to a prima facie case for summary judgment purposes. The only issue on appeal, therefore, was whether the Board articulated a nondiscriminatory reason for its actions and whether that reason was a pretext. The Board did offer such a reason. It argued that Silverman was the weakest of the probationary teachers, based on performance evaluations. Although Silverman disagreed with the evaluations, that is not enough to make the reason a pretext. Silverman raised no issue regarding the honesty of the evaluations, only their accuracy. The Court also rejected Silverman's speculation arising out of the fact that the principal interviewed other candidates for the position that she offered Silverman in 2005. The Court also rejected Silverman's retaliation claim. Under the direct method: a) the offering of a "more difficult" position is not an adverse employment action since the Board was not obligated to offer her any position, b) the negative performance evaluations could amount to an adverse employment action but there is no evidence that they were causally related to the EEOC charge, and c) the Board's 2006 decision not to renew was an adverse employment action but, again, is not causally connected to the charge. Under the indirect method, the Court concluded both that Silverman failed to identify a similarly situated individual and failed to offer sufficient evidence of pretext.

Reservist's Differential Pay Was Not A "Benefit Of Employment"

GROSS v. PPG INDUSTRIES (March 7, 2011)

PPG Industries has employed Eric Gross as an industrial technician since 1997. Gross is a member of the United States Marine Corps Reserve. He was called up for active duty in 2004. Before he left, he met with the PPG's human resources advisor, who explained his benefits. PPG’s policy guaranteed his return to his job and also paid him the differential between his PPG salary and his military salary. PPG computed the salary differential by subtracting his military monthly base pay from his PPG monthly base pay. When Gross returned from deployment, he submitted a complaint regarding the differential calculation. Since Gross was required to work more days per month in the military, he wanted PPG to: a) calculate a daily rate of pay for his military job, and b) subtract from his PPG salary his military salary for only those days he would have worked at PPG. PPG refused to apply that calculation retroactively, but did adopt it prospectively. Gross brought suit against PPG pursuant to the Uniformed Services Employment and Reemployment Act. Judge Stadtmueller (E.D. Wis.) granted PPG summary judgment. Gross appeals.

In their opinion, Judges Cudahy, Rovner, and Evans affirmed. The Court first addressed Gross' argument that the pay calculation violated the Act. Under § 4311, someone in Gross' position cannot be denied a "benefit of employment" because of his service obligations. The Court noted that it has very recently held (opinion and intheiropinion) that § 4311 does not require an employer to provide benefits to military personnel that it does not offer to other employees. Section 4311's purpose is to protect military personnel from discrimination, not to provide preferential treatment. The Court added that Gross would not be entitled to relief even if it accepted his argument that differential pay was a "benefit of employment." PPG did not deny Gross his differential pay. It just did not pay it under Gross' calculations -- nor was it required to. Next, the Court considered and rejected Gross’ retaliation claim. The Act only prohibits an adverse employment action against a person who has sought protection under the Act. Here, there was no adverse employment action. PPG paid Gross under a calculation that it was within its rights to use and denied him no pay. Even if the calculation constituted an adverse employment action, it could not amount to retaliation. All of the calculations and payments under the PPG formula took place before Gross made any complaints. They could not possibly been in retaliation for something that had not yet occurred.

Alcoholism Requires Inpatient Care Or Continuing Treatment To Qualify As An FMLA "Serious Health Condition"

AMES v. HOME DEPOT (January 6, 2011)

Diane Ames had a five-year, incident free employment record with Home Depot when she asked her store manager for the company's assistance with her alcohol problem. She enrolled in the company's employee assistance program and was put on paid leave. She was told that she could return when she had a treatment plan, passed a drug and alcohol test, and obtained return authorization. She did so and returned to work within a month. The following month, however, she was arrested for driving under the influence. When Home Depot found out, it required her to schedule an alcohol treatment evaluation. The company gave her several extensions within which to schedule the evaluation. In the meantime, she sought scheduling accommodations from her manager so she could attend her Alcoholics Anonymous meetings, she provided her manager a treatment note from her physician, and she shared many of her other personal difficulties with her manager. During a regularly scheduled shift on December 23, an assistant manager suspected that she was under the influence of alcohol. She was immediately tested. When the company learned that she tested positive for alcohol, it decided to terminate her for substance abuse. Her manager scheduled a meeting with her on January 2 to notify her. She missed the meeting because she began drinking more and checked herself into a hospital on January 1. Home Depot mailed Ames a letter on January 10 informing her of the termination of her employment. Ames filed suit pursuant to the Family and Medical Leave Act and the Americans with Disabilities Act. Judge Coar (N.D. Ill.) granted summary judgment to Home Depot on those claims. Ames appeals.

In their opinion, Judges Manion, Tinder, and Hamilton affirmed. On her claim under the FMLA that Home Depot interfered with her leave rights, Ames was required to establish (among other things) that she was entitled to leave under the Act. An employee is entitled to live under the FMLA only if she is suffering from a "serious health condition," which is defined as an illness that involves inpatient care or continuing treatment. Substance abuse can qualify as a serious health condition but only if it meets the inpatient care or continuing treatment standard. The record contains no evidence of either. She did check into a hospital, but that was after her employment was terminated. Therefore, no reasonable juror could conclude that she had a serious health condition -- her FMLA interference claim fails. Ames also asserted an FMLA retaliation claim, pursuant to which she had to establish that she engaged in a protected activity, that she suffered an adverse job action, and that there was a causal connection between them. The Court addressed only the causal connection prong. Here, the record contains no evidence that Home Depot's decision to fire Ames was related to any alleged request for FMLA leave – her FMLA retaliation claim fails. Lastly, the Court rejected Ames' ADA claim. In order to prevail on that claim, she had to establish that she had a disability. Alcoholism can be a disability under the ADA but only if it "substantially limits" a major life activity. Ames offered no evidence that her alcoholism even adversely affected her life's activities. In fact, the only evidence on that score was her testimony that it did not affect her performance on the job. Her ADA claim fails.

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Driver's Volatile Manner Of Expressing Safety Concern Crossed The Line

FORMELLA v. UNITED STATES DEPARTMENT OF LABOR (December 10, 2010)

Don Formella has been driving a truck for more than four decades. In late 2005, he started driving for Schnidt Cartage, a small, local transportation company near Chicago. On a February morning in 2006, Formella arrived at work and discovered that he had been assigned to a different truck than he had been driving. Formella inspected the vehicle and discovered missing permits, non-operable lights, and mismatched tires. Formella was particularly concerned about the potential safety hazard of the mismatched tires. Formella complained to the company's vice president, Linda Marcus. Marcus' and Formella's versions of what happened next vary greatly. Formella claims it was a professional exchange, in which he indicated his belief that the truck was not in compliance with federal and state law -- after which Marcus fired him. Marcus, on the other hand claims that Formella was loud and volatile, that she listened to and made arrangements to correct each of his safety complaints -- and that she fired him only after he became more and more agitated and unstable. Other Schnidt employees confirmed several aspects of Marcus' account of the exchange. Formella filed a complaint with the Department of Labor, alleging that Schnidt fired him for in retaliation for his safety complaints, in violation of the Surface Transportation Assistance Act. After an evidentiary hearing, the ALJ found that Schnidt discharged Formella because of his volatile conduct, not in retaliation for his complaints. An administrative review board upheld the decision. Formella seeks review.

In their opinion, Seventh Circuit Judges Kanne, Rovner, and Williams denied review. The Surface Transportation Assistance Act prohibits an employer from taking any disciplinary action against a driver who refuses to drive a vehicle that does not comply with regulations. The statute was amended in 2007 to make it easier for a driver to sustain his burden. Prior to 2007, a driver had to show that his protected conduct was a but-for cause of the discipline. Since the amendment, a driver only has to show that his protected conduct was a contributing factor in the discipline. The employer then must demonstrate by clear and convincing evidence that it would have acted similarly even in the absence of the protected conduct. The ALJ considered the pre-amendment burden, since the amendment took effect after the conclusion of the hearing but before the decision. The Court rejected Formella's argument that it should consider his case under the amended statute. Because he asked neither the ALJ nor the review board to consider the amendments, Formella has forfeited that argument. On the merits, the Court accepted the ALJ's findings regarding Schmidt's reason for termination since they were supported by the record. The Court then noted that this case was, nevertheless, a close one. Employees are given some degree of latitude in expressing their safety complaints to their employers. Here, Formella assaulted no one, threatened no one, and prevented no one from doing his work. He did lose his temper and shout. Although it concluded that reasonable people could differ, the Court found that the review board was neither arbitrary nor illogical in concluding that Formella’s conduct exceeded that latitude. 

Plaintiff's Evidence Fails To Establish Essential Elements Of Her Claim

GOODMAN v. NATIONAL SECURITY AGENCY (September 3, 2010)

Claudette Goodman was hired in August 2004 as a private security guard by the National Security Agency (National). Her initial pay was $8.25 an hour. National assigned her to an overnight shift at a housing complex. For family reasons, Goodman desired a daytime shift. She soon transferred to a different location on the more desirable dayshift. Although she was promoted to supervisor with a raise to $8.75, her employment was not without problems. National had difficulty with its payroll -- paying late, paying less than owed, bouncing checks, etc. In mid-2005, she began suspecting that National paid its male employees more than she. The owner denied it. In any event, in October 2005, she found another job at $10.00 an hour and quit her job at National. She brought suit against National under the Equal Pay Act and Title VII of the Civil Rights Act. Judge Norgle (N.D. Ill.) granted summary judgment to the defendants. Goodman appeals.

In their opinion, Judges Rovner, Sykes, and Tinder affirmed. The Court first addressed her retaliation claims under both statutes. Goodman relied on three acts in support of her claims -- that her hours were reduced, that she was demoted, and that she was reassigned. Unfortunately, the evidence did not fully support the accuracy of her claims. For example, her own testimony was that her hours did not change and that she was never actually reassigned (only threatened). To the extent it did, she failed to establish any harm. Her testimony suffered from inconsistencies and a lack of clarity and was insufficient to support a retaliation claim. Goodman's equal pay claims suffered from the same lack of clarity in the record. She offered the testimony of Michael Moore, a male supervisor, in support of the claim. Upon close examination, and adjusting for confusion about certain dates, the Court concluded that the evidence established that Goodman was in fact paid more than Moore. Obviously, that was fatal to her Equal Pay Act claim.

Isolated Statements, Inconsistent With The Entire Context, Do Not Support A Finding Of Actual Discharge

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.

Co-workers With Less Egregious Policy Violations Are Not "Similarly Situated" To Plaintiff

WEBER v. UNIVERSITIES RESEARCH ASSOCIATION (September 2, 2010)

Katherine Weber had been employed at Universities Research Association (URA) for almost twenty years when she received a negative performance review. She believed the review was unfair and filed a grievance. The grievance was ultimately resolved in her favor and the negative review was removed from her record. Weber claims that a number of bad things began to happen to her after the grievance, ultimately including the elimination of her position in early 2004. She accepted another position with the organization under a new supervisor. Weber had difficulty with her new supervisor from the beginning. She complained that she was the victim of retaliation and that her new supervisor treated her differently than other employees. Her supervisor complained that she was not getting her work completed and became suspicious of her computer usage. URA decided to monitor her Internet usage. The results of its trace showed that Weber spent more than 16 hours in one workweek visiting websites unrelated to her work. Her usage included accessing dog-related sites and her personal e-mail accounts in connection with her dog training business. URA terminated Weber's employment for violating its policies: a) requiring disclosure and authorization of outside employment and b) prohibiting the use of URA computer equipment in connection with outside employment. Weber brought suit pursuant to Title VII for gender discrimination and retaliation. Judge Andersen (N.D. Ill.) granted summary judgment to URA. Weber appeals.

In their opinion, Judges Bauer, Kanne, and Tinder affirmed. The Court first concluded that Weber waived both claims under the direct method of proof by not sufficiently developing them in the district court. Since Weber does not challenge the district court's decision with respect to the retaliation claim under the indirect method, the only other issue before the Court was the discrimination claim under the indirect method. Weber attempted to meet the "similarly situated" element of her prima facie case by identifying a number of male co-workers who had unauthorized outside employment, who accessed the Internet for personal and outside employment use, and who accessed the Internet to view pornography. The Court concluded that Weber did not meet the "similarly situated" element. To meet that requirement, she must identify employees who engaged in similar conduct in the absence of circumstances that would distinguish their conduct from hers. The Court acknowledged that she identified multiple instances of policy violations but distinguished those violators. Weber presented no evidence that the violators had trouble finishing their work or that any of them violated a company policy "with the same reckless abandon" as Weber.

"Cat's Paw" Theory Does Not Apply Where There Is An Independent Decisionmaker

HILL v. POTTER (August 30, 2010)

Carla Hill has been an employee of the United States Postal Service in Hazel Crest, Illinois for several years. In the early 2000s, she filed a number of EEO complaints against her supervisors for discrimination. In late 2002, Hill hurt her back in a work related injury and went on "limited duty" status. Limited duty status employees are paid for a full day's work even if no qualifying work is available. Just as her limited duty status period was about to end, Hill claimed that she reinjured her back and reapplied. Her supervisor, Patrick Kavanaugh, wrote a letter to Dale Schultz of the Office of Workers' Compensation Programs. He communicated his belief that Hill’s injury was not as serious as she claimed. Schultz put Hill on "light duty" status. Light duty status employees are not guaranteed a full day's pay if qualifying work is not available. Hill lost 618 hours of pay while on light duty status -- even while other employees worked in excess of 800 hours of overtime. Hill, who was a letter carrier, also wanted a position as a window clerk. She submitted written applications in 2000 and 2003 and again documented her interest in 2004. Clerk positions became available in 2005, 2006, and 2007. She did not submit written applications at any of those times. On each of those occasions, the Postal Service offered the job to someone who had submitted a written application. Hill brought an action against the Postmaster General, alleging that the lost hours and failure to promote were in retaliation for her protected activities (her EEO complaints). Judge Coar (ND. Ill.) granted summary judgment to the defendant. Hill appeals.

In their opinion, Judges Flaum, Kanne, and Evans affirmed. The Court noted that Hill proceeded under the indirect method of proof -- which requires proof of a statutorily protected activity, a materially adverse job action, satisfactory job performance, and treatment worse than a similarly situated employee. The elements at issue here are whether there was an adverse job action (on the reduction in hours claim) and whether Hill was treated differently from similarly situated employees (on the failure to promote claim). The Court first addressed adverse job action. Although a reduction in hours can be an adverse job action, the reduction here came as a result of her light duty status. It does not amount to an adverse job action without other evidence. The Court rejected Hill's claim that Kavanaugh's letter to Schultz somehow imputed a retaliatory motive to Schultz under a "cat's paw" theory. There was no evidence in the record that the letter had any effect on Schultz -- let alone a dispositive one. Therefore, Hill's light duty assignment itself was not an adverse job action. The Court also concluded that sending her home without pay was also not an adverse job action. Although there was evidence in the record that other employees worked overtime, there was no evidence in the record that that overtime work fell within her work performance limitations. Finally, the Court rejected Hill's failure to promote theory of liability. In order to prevail, she had to establish that she properly applied for the promotion. The Postal Service presented evidence that its unofficial policy required an application in writing -- even though that unofficial policy was inconsistent with the written policy and the Postal Service presented no documentary evidence that supported it. Nevertheless, the Court concluded that Hill had not met her burden of establishing pretext. She failed to come forward with any evidence from which an inference could be drawn that the Postal Service evidence was not credible.

Employer Is Entitled to Judgment Where Record Contains No Evidence of Pretext

CASANOVA v. AMERICAN AIRLINES (August 5, 2010)

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

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

Substantial Evidence Of Pretext Is Enough To Affirm An EEOC Award

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.

Discrimination Claims Are Barred When They Were Either Untimely Or Not Raised In The EEOC Charge

JONES v. RES-CARE, INC. (July 16, 2010)

Tamika Jones, an African-American female, has several complaints about the way she was treated during her employment at Res-Care. She claims she was promoted in both 2003 and 2004 and acquired increased job responsibilities without an increase in compensation -- unlike several non-African-American employees. She claims she had to specially request time off and that she was denied tuition reimbursement -- unlike several non-African-American employees. She claims she was passed over for promotions in April and November of 2005 and June of 2006 – in favor of non-African-American employees. She filed an EEOC charge in August of 2006, referring to the November 2005 failure to promote and the tuition reimbursement treatment. In 2007, while under specific orders not to vary her work schedule without permission, she returned from her honeymoon three days early. She was given corrective action for the incident. She brought suit under Title VII in June of 2007. She filed a second EEOC charge in November of that year, claiming that the corrective action from the honeymoon incident was in retaliation for the first EEOC charge. She also amended her complaint accordingly. Testimony was elicited during discovery that the Executive Director, after an internal investigation established that Jones improperly charged her employer for some lunches, called her either a "rat" or a "fink" and referred to her as "untrustworthy" to another employee. Jones added a state law slander claim. Judge Lawrence (S.D. Ind.) granted summary judgment to Res-Care on all claims. Jones appeals.

In their opinion, Circuit Judges Manion and Williams and District Judge Darrah affirmed. One of the principal issues on appeal was the timing of the acts of discrimination and the content and timing of the EEOC charge. The Court concluded that the retaliation claim was the only claim that was both mentioned in an EEOC charge and occurred within the 180 days prior to the date of the charge. Jones struck out on each of her three attempts around the ruling: Strike 1) the Court rejected Jones' arguments of continuing violation (they were all discrete acts), Strike 2) the Court rejected her equitable tolling argument (she failed to meet the "aware of the possibility" standard), and Strike 3) the Court rejected her “closely related” argument ("part of a pattern" is not enough). On the merits of the honeymoon incident retaliation claim, the Court concluded both that the corrective action imposed did not amount to an adverse employment action and that Jones failed to establish a causal link between the corrective action and the EEOC charge. The Court also agreed with the district court on the defamation count. Indiana law grants a qualified privilege to alleged defamatory statements if they relate to the fitness of employee and are contained in intra-company communications. The privilege can be lost in certain circumstances, including if it was motivated primarily by ill will. The record established that the statements at issue met the definition of qualified privilege and Jones offered no evidence of ill will other than the offensiveness of the terms themselves -- which is not enough.

Court Finds Sufficient Evidence of Retaliation to Uphold Jury Verdict

PICKETT v. SHERIDAN HEALTH CARE CENTER (June 25, 2010)

Danielle Pickett was employed as a housekeeper at the Sheridan Health Care Center in Zion, Illinois. In 2005 and 2006, she was the victim of several incidences of inappropriate remarks and touching by nursing home residents. Although the Center responded to her complaints, the promised response never quite succeeded. In a June 2006 meeting with several Center staff members, the Center agreed to reassign Pickett from cleaning residents' rooms, although, according to Pickett, the Center's VP of Operations suggested that Pickett invited the inappropriate conduct. The next morning, Pickett had a very emotional conversation with the Center's Administrator. According to Pickett, the Administrator said some things that indicated that her job may be in jeopardy. The meeting ended with Pickett still upset and in tears. Instead of resuming her assigned tasks, she left the Center. She called the Administrator the next day to ask if she still was employed. He consulted with the VP of Operations and advised Pickett that she no longer had a job. Beginning about a month later, after Picket filed an EEOC claim, the Center offered on several occasions to reinstate Pickett. She refused several such offers but eventually returned to the Center in January of 2007. She brought suit against the Center for sexual harassment and for retaliatory firing under Title VII. Judge Pallmeyer (N.D. Ill) granted summary judgment to the Center on the harassment claim. The retaliation claim went to trial. The jury found for Pickett and awarded $15,000 in compensatory and $50,000 in punitive damages. The court awarded back pay and injunctive relief. The Center appeals.

In their opinion, Judges Flaum, Kanne, and Evans affirmed. The Court first rejected the Center's argument that Pickett could not prevail on the retaliation claim because she could not prevail on the harassment claim. In order to prevail on retaliation, a plaintiff need only show statutorily protected conduct, adverse action, and a causal link. The Court found that there was sufficient evidence of each of those elements in the record -- the jury was entitled to find in Pickett's favor. Each of the Center's other arguments was also rejected: a) counsel’s "send some message" language in closing argument was not improper, b) the compensatory damage award was not excessive and did not require corroborating evidence from a third party, and c) the court did not abuse its discretion in allowing the punitive award to stand in light of the evidence that supported a conclusion that the Center knew it might be retaliating when it terminated Pickett's employment.

Court Does Not Impute Subordinate's Alleged Retaliatory Motive To Decision-Maker

 POER v. ASTRUE (May 27, 2010)

Darrell Poer has been an attorney in the Social Security Administration's (SSA) Office in Indianapolis for years. In 2003, he testified on behalf of two female African-American employees in a suit against Allen Kearns, the Hearing Office Director. In 2005, a more senior attorney position opened in the Indianapolis office. Poer applied for the position. Under the applicable procedures used by the office, a) the HR Department processed applications and made a list of the best qualified candidates, b) they forwarded the list of candidates to Administrative Law Judge (ALJ) de la Torre for his recommendation, and c) ALJ de la Torre forwarded her recommendation to ALJ Lillios, who is the decision-maker. In addition, the practice of the office was to cancel a vacancy if fewer than three qualified candidates existed. At the time of the 2005 vacancy, severe budget cuts prohibited moving employees from one region to another and severely limited relocation expenses. The list of candidates for the 2005 promotion included Poer and two other candidates, one from inside the region and one from outside the region. ALJ de la Torre received the candidate list from Kearns and understood from Kearns that Poer was the only candidate from within the region – and therefore the only viable candidate. The vacancy expired without a selection. Kearns advised the region office: "no FTEs available." Kearns represented himself to Poer as the selecting official and told Poer that he was not selected because he was the only candidate on the list. Poer filed suit, alleging that the SSA failed to promote him in retaliation for his testimony against Kearns. Judge Barker (S.D. Ind.) granted summary judgment to the SSA, concluding that no decision-maker was even aware of Poer's testimony and that there was no evidence of Kearns significantly influencing the promotion decision. Poer appeals.

In their opinion, Judges Ripple, Manion, and Williams affirmed. At least for purposes of the summary judgment motion, the SSA conceded that Poer engaged in protected activity and suffered an adverse job action -- two of the three requirements under the direct method of proof in a Title VII claim of retaliation. The third requirement, a causal connection between the two, was the only issue for the court. Since it was undisputed that the decision-makers were unaware of Poer's protected activity, Poer had to succeed in imputing the alleged retaliatory motive of Kearns to the decision-makers to establish a causal connection. The Court noted that it has imputed such motives when the non-decision-maker has concealed information or fed false information to the decision-maker. Here, the evidence supports an inference that Kearns provided false information to ALJ de la Torre. However, the evidence also establishes that the false information had no impact on ALJ de la Torre's decision not to fill the vacancy. Whether the other two candidates came from outside the region, as mistakenly believed by de la Torre, or came from outside Indianapolis, as is the truth, ALJ de la Torre's decision would have been the same. Because of the relocation expense restrictions, Poer was the only viable candidate and could not have been promoted under agency policy. His retaliation claim fails.

Causal Connection Is Not Established In A Title VII Retaliation Claim

LEONARD v. EASTERN ILLINOIS UNIVERSITY (May 26, 2010)

For almost 20 years, Robert Leonard worked in a janitorial position at Eastern Illinois University. Leonard was of Native American descent and was very outspoken and active on those issues. In particular, Leonard was very critical of the use by the University of Illinois (since discontinued) of a Native American mascot called “Chief Illiniwek.” In March 2005, Leonard applied for a promotion. He interviewed before a panel of six supervisors, two of whom wore shirts picturing Chief Illiniwek. Although the University of Illinois basketball team was scheduled to play a collegiate championship game that very night, Leonard was offended by the shirts and believed them to be a statement regarding Leonard's criticism of the mascot. Neither Leonard nor any other applicant was promoted as a result of the March 2005 interviews. In April, Leonard complained to the school's Office of Civil Rights. As a result of his complaint, the supervisors were requested not to wear clothing depicting the Chief Illiniwek when dealing with Leonard. In October of 2005, Leonard and seven others applied for another promotion. They all interviewed before the same six supervisors without incident. The University promoted the three applicants who scored the highest -- Leonard was seventh of the eight. Leonard brought suit against the University under Title VII. He alleged that the University failed to promote him in retaliation for his earlier complaint. Judge McCuskey (C.D. Ill.) granted summary judgment to the University. Leonard appeals.

In their opinion, Judges Bauer, Evans, and Tinder affirmed. Leonard had proceeded in the trial court under the direct method of proof, which requires him to prove, among other things, a causal connection between a protected activity and an adverse job action. The Court found no such evidence. There was no evidence that the supervisors reacted negatively to his complaint or that the results of the scoring showed any bias. All six supervisors scored Leonard in the bottom half of the candidates. A causal link cannot be inferred from "suspicious timing" because of the six-month gap between the complaint and the interviews. The Court also rejected Leonard's attempt to use 10-year-old statements of allegedly anti-Native American bias to support an inference of retaliation.

FMLA Plaintiff Presents Enough Evidence Of Interference And Retaliation To Survive Summary Judgment

GOELZER v. SHEBOYGAN COUNTY (May 12, 2010)

Dorothy Goelzer began her employment with Sheboygan County, Wisconsin in 1986. In 1999, she became the full-time assistant to Adam Payne, the Administrative Coordinator for the County. For several years, she received consistently favorable performance reviews. Her health deteriorated beginning in 2002. She used over 300 hours of FMLA leave in 2002, over 175 hours in 2003, and almost 100 hours in 2004. Although her health improved in 2005, she continued to take intermittent FMLA leave to care for her mother. Her significant use of FMLA leave was noted negatively in each of her performance reviews and salary discussions during this time. In May of 2006, Goelzer requested two months of FMLA leave for a foot surgery. Although the County approved her request on August 8, she was fired on September 8. Payne had been promoted to the new position of County Administrator on August 15 and, for the first time, had been given the power to fire Goelzer. Goelzer filed an action against the County and Payne. She alleged violations of the FMLA for the County's failure to restore her to her position and for discrimination. The district court granted summary judgment to the defendants. Goelzer appeals.

In their opinion, Judges Bauer, Wood, and Williams reversed. The Court noted two fundamental principles of the FMLA: the right to be restored to one's position (or an equivalent one) upon return from a leave and the right not to be discriminated against for using leave. The only contested issue in Goelzer's interference claim was whether she was terminated to prevent her from being reinstated. Although Payne's stated rationale was his desire for a greater skill set, the Court concluded that there was sufficient evidence for a jury to decide in Goelzer’s favor. That evidence included the many references by Payne over the years to her use of sick leave. The Court next addressed the retaliation claim, which differs from the interference claim by requiring proof of discriminatory intent. Again, the Court concluded that the record supported two possible explanations for Payne's decision to terminate Goelzer. Goelzer was entitled to have a jury select one.

Insubordinate Employee Fails To Satisfy The "Meets Legitimate Job Expectations" Prong

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.

Illinois Firefighter Has A Property Interest In Employment After One Year Anniversary, Notwithstanding Lengthy Leave

KODISH v. OAKBROOK TERRACE FIRE PROTECTION DISTRICT (May 10, 2010)

Brian Kodish began work as a full-time firefighter and paramedic for Oakbrook Terrace in June of 2003. The Illinois Fire Protection Act prohibits the termination of a firefighter without just cause after the firefighter has "held that position for one year." In March of 2004, Kodish went on leave for a knee surgery. While he was out, he received a letter indicating that the District was going to extend his 12-month probationary period for 90 days. Although the evaluations he had received in his first nine months contained some positive remarks, Kodish was evaluated as "fair" in most categories. He was criticized for a lack of motivation, poor communication skills, and an inability to follow authority. Kodish returned from leave on July 24. On August 11, the District Board decided to terminate his employment. He filed suit against the District under § 1983, alleging a violation of his due process rights. He also alleged that he was fired in retaliation for speaking out on union issues. The district court granted summary judgment to the defendants. Kodish appeals.

In their opinion, Chief Judge Easterbrook and Judges Ripple and Rovner reversed. The Court first addressed the existence of a property right, a prerequisite for the federal due process claim. Of course, Kodish had passed his one-year anniversary before he was fired -- but, because of his four-month leave, he only actually worked a little over ten months. The Court looked to Illinois law to determine whether Kodish was protected. No Illinois court has interpreted the "held that position" language of the Act. The Court looked to Illinois decisions with respect to analogous statutes and concluded that the Illinois Supreme Court would read the plain language of the Act to impose a simple twelve-month employment requirement for the creation of the property interest. The Court rejected defendants' other arguments based on the Illinois Municipal Code and the District’s own Wage and Benefit Policy as either in applicable (in the case of the Code) or not controlling (in the case of the Policy) -- and reversed the district court's conclusion that Kodish had no property interest in continued employment. The Court then addressed Kodish's First Amendment claim. It quickly concluded that Kodish met two of the three requirements of the claim -- that the speech was protected speech and that he suffered a deprivation. In addressing the third requirement -- whether he would have been terminated but for his speech -- the Court reviewed his mixed employment evaluations as well as the evidence of the fire chief's opinion of Kodish's speech. The Court disagreed with the district court's conclusion that the only reasonable conclusion for his discharge was his employment record. Although the Court found that theory "plausible," it also found the alternate theory -- that he was fired for his speech -- one that a reasonable jury could adopt. In concluding that the First Amendment claim should have survived summary judgment, the Court also concluded that Kodish presented sufficient evidence that the fire chief's animus should be attributed to the District under either the "singular influence" or the "motivating factor" test.

De-deputization And Transfer Do Not Amount To Constructive Discharge

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.

Mixed-Motive Liability Theory Is Improper Under The LMRDA

SERAFINN v. LOCAL 722 (March 12, 2010)

Mark Serafinn is a member of Local 722 of the International Brotherhood of Teamsters. In fact, he served three terms as its president. Serafinn is also a member of the Teamsters for a Democratic Union ("TDU"), a large and active dissident group opposed to the current international leadership. Serafinn alleges that the presidents of the union and the joint council, which is a group of leaders from locals in the same region, colluded to have internal disciplinary charges brought against him. The joint council suspended Serafinn and ordered restitution. Serafinn brought an action against both the local union and the joint council under the Labor Management Reporting and Disclosure Act. He alleged that the actions taken against him were taken without due process in retaliation for his exercise of free speech and assembly rights, all in violation of the Act. The district court granted summary judgment to the joint council. The claim against the local union proceeded to a jury trial, where Serafinn was awarded $50,000 in compensatory damages and $55,000 in punitive damages. After trial, the court denied a motion by Serafinn for relief from the summary judgment granted to the joint council on the grounds of newly discovered evidence. The court also awarded attorneys fees to Serafinn, but in a lesser amount than requested. The union local appeals. Serafinn cross appeals.

In their opinion, Judges Bauer, Evans, and Tinder affirmed. The Court first addressed the local's contention that the district court should have given a mixed-motive instruction. The district court had instructed the jury that Serafinn's exercise of free speech had to be a "but for" cause, not just a motivating factor. In that situation, the Court stated, a mixed-motive instruction would be inappropriate. The Court noted that some courts have approved of mixed-motive liability theories in cases under the Act but that the Supreme Court's decision in Gross overruled that approach. The Court then addressed the local's challenge to a limiting instruction with respect to a witness’ misdemeanor convictions. Although the convictions may be admissible for some purposes, Rule 609 prohibits their admission to attack general character for truthfulness. Here, the lower court properly allowed the convictions into evidence for some purposes but erred when it allowed the jury to consider them for improper impeachment purposes. Nevertheless, the Court found no prejudice from the error and declined to order a new trial. Addressing Serafinn's cross-appeal, the Court concluded that his "new evidence" was simply cumulative. Finally, the Court found no abuse of discretion in the district court's consideration and decision with respect to the award of attorney's fees.

Acts Of Harassment Occuring Outside The Limitations Period Should Be Considered In A Hostile Workplace Claim If Any Act Falls Within The Period

TURNER v. THE SALOON (February 8, 2010)

Paul Turner was a waiter at The Saloon restaurant. After working there for several years, Turner and one of his supervisors carried on a sexual relationship that lasted for about nine months. According to Turner, the supervisor retaliated against him after she ended the relationship. He alleges that she changed his table assignments, disciplined him without cause, and sexually harassed him on a number of specific occasions. Turner also alleges that he was discriminated against because of his psoriasis. He wears no underwear as a result of that condition and therefore occasionally exposes himself while changing clothes. He claims that his supervisors failed to accommodate his condition. Instead, he was forced to change in a “vile” men’s room. One day, in the middle of a shift and with no other waiters on duty, Turner left the restaurant to run an errand. When he returned, he was fired. Turner sued the restaurant and several managers for gender and disability discrimination under Title VII and the Americans with Disabilities Act. He also made a claim for overtime. The court granted summary judgment to the defendants. Turner appeals.

In their opinion, Judges Manion, Rovner, and Sykes reversed and remanded in part in affirmed in part. The Court first addressed the Title VII sexual harassment claim. It concluded that the district court erred in not considering most of the alleged acts of harassment because they occurred outside the limitations period. Under the Supreme Court's decision in Morgan, whether an alleged act of harassment is considered by a court depends on whether the claim is for employment discrimination or for hostile work environment. In an employment discrimination claim, discrete acts outside the limitations period should not be considered. However, in a hostile work environment claim, all acts can be considered as long as one act contributing to the hostile environment took place during the limitations period. Taking all the alleged acts into account, the Court had little difficulty in finding that they were sufficient to survive summary judgment. The Court noted the presence of at least five discrete acts, three of which were aggressively physical. Since the district court did not reach the issue of employer liability, the Court left the issue for remand. The court next addressed Turner's claim that his termination was in retaliation for his complaints about the harassment. The Court concluded that Turner was unable to establish a prima facie case under either the direct or indirect method. It noted a series of at least ten serious reprimands in the eight or nine months preceding his termination as well as the fact that he left his job in the middle of the shift. The serious performance problems as well as the passage of time since his harassment complaint belie a causal connection between the complaint and his termination. The Court summarily rejected Turner's ADA discrimination claim -- his psoriasis is not a disability under the Act since it does not limit any major life activity. The fact that he is not disabled does not preclude his ADA retaliation claim. Since he did raise such a claim with his employer, his employer is not allowed to retaliate. He does not prevail on that claim, however, for the same reasons he could not prevail on his Title VII retaliation claim. Finally, the Court rejected Turner's wage claims as wholly unsupported by the evidence presented.

ADA Mixed-Motive Plaintiff Must Now Prove That Her Employer Would Not Have Fired Her But For The Disability

SERWATKA v. ROCKWELL AUTOMATION, INC. (January 15, 2010)

Kathleen Serwatka was an employee of Rockwell Automation. Upon her discharge, she brought suit under the Americans with Disabilities Act (ADA). She alleged that she was discharged because her employer considered her to be disabled. At trial, the jury indicated its belief on a special verdict form that a) Rockwell terminated Serwatka because it believed her to be disabled and b) that Rockwell would have fired her anyway. Treating the verdict as a mixed-motive finding, the court awarded no damages but did grant declaratory and injunctive relief and awarded attorneys fees. Rockwell appeals.

In their opinion, Judges Rovner, Evans, and Van Bokkelen vacated and remanded. The Court began its analysis with the Supreme Court's decision in Price Waterhouse. In that case, the Supreme Court held the an employer could violate Title VII even if an improper motive was not the only motive for a termination decision. It also held, however, that an employer would escape liability if it could prove that it would have made the same decision in the absence of the improper motive. Courts applied that Title VII decision to other anti-discrimination statutes. A few years later, Congress codified the Price Waterhouse holding that an improper motive need not be the only motive for a plaintiff to recover. It provided limited remedies, not an absence of liability, in the situation where the employer proves that it would have made the same decision in the absence of the improper motive. Specifically, it allowed for declaratory relief, injunctive relief, and attorneys fees. The ADA incorporates by reference the mixed-motive remedy provisions of Title VII. It was on this basis that the district court fashioned its relief. While the case was on appeal, however, the Supreme Court issued its opinion in Gross. In Gross, the Supreme Court held, notwithstanding Price Waterhouse, that mixed-motive claims were not allowed under the Age Discrimination in Employment Act (ADEA). The Supreme Court concluded that Congress' decision to specifically incorporate the Price Waterhouse approach into Title VII and not to incorporate it into ADEA indicated its intent not to authorize mixed-motive claims under that statute. The "because of" language of the statute therefore required "but for" causation. Like ADEA, the ADA does not include an expressed mixed-motive provision and it uses the same "because of" language. The Court therefore concluded that an ADA plaintiff must establish that the employer would not have fired her absent the improper motive. The special verdict form below indicates that Serwatka failed to do so. The Court vacated and remanded with instructions to enter judgment in Rockwell's favor.

Failure To Prove Employer's Knowledge Of Pregnancy Defeats Discrimination Claim

LAFARY v. ROGERS GROUP, INC. (January 12, 2010)

Angela LaFary was a field clerk for Rogers Group, Inc. (RGI), a producer of crushed stone. In 2003, she was performing primarily administrative duties but longed for a chance to get into sales. Michael DeMartin, her supervisor, indicated she was on a track to do so. Unfortunately, she got derailed in 2004. In February, she married a man who worked as an independent trucker for the same RGI office. She found out she was pregnant on March 15. On March 24, DeMartin proposed, in an e-mail, to transfer LaFary to another RGI office. He noted business needs as well as a concern about the possible conflict of interest presented by LaFary's marriage. He recommended a transfer based solely on the business needs, however. On April 1, RGI assigned LaFary's husband to work with a different RGI office. In the same month, they transferred LaFary to the same office. Although DeMartin knew she was pregnant when he transferred her, he asserts that he was unaware of her pregnancy at the time of his recommendation. The transfer resulted in a pay increase but may have negatively affected LaFary's opportunities for a sales position. LaFary suffered complications from her pregnancy. She was hospitalized for two weeks in June and never returned. In January of 2005, although LaFary indicated her desire to return, DeMartin informed her that, pursuant to RGI policy, she was terminated because she did not return when her leave expired. LaFary filed an EEOC complaint, alleging sex discrimination. She then brought suit under Title VII. The court granted summary judgment to RGI. LaFary appeals.

In their opinion, Judges Flaum, Wood, and Sykes affirmed. On the claim related to her transfer, the Court noted that the district court found both that it was not an adverse employment action and that LaFary did not establish that DeMartin knew of her pregnancy at the time he proposed her transfer. Although finding the first conclusion a close question, the Court affirmed on the second. LaFary's declaration stated only that DeMartin knew of her pregnancy "shortly after" she became pregnant. It never stated precisely when he knew. In fact, she never presented any competent evidence that DeMartin knew of her pregnancy at the time he recommended her transfer. Thus, she cannot prevail on that claim. With respect to her termination claim, the Court concluded that LaFary never established that a similarly situated individual not in her class was treated more favorably. Having failed to do so, she cannot prevail on the termination claim either.

Union Grievance Is Not Protected Speech When It Concerns a Matter of Purely Private Interest

BIVENS v. TRENT (January 6, 2010)
 

In his position as an officer in the Illinois State Police, Jimmy Bivens was responsible for the operations of an indoor firing range. He performed his job well. He greatly improved the conditions at the range and was commended for his work. After a few months of working at the range, however, Bivens began to feel quite ill. He was concerned that his symptoms were related to lead exposure at the range. Blood tests revealed highly elevated levels of lead. Bivens filed a union grievance, alleging unsafe working conditions. Within days, the range was tested and closed for remediation. Bivens' blood lead levels returned to normal within a few weeks and he returned to work. He only worked for one week, however, claiming that he continued to experience health problems. The State Police arranged for independent examinations by a neurologist and psychiatrist. Both found Bivens' health to be normal and approved his return to work. The State Police terminated Bivens' disability benefits. Bivens brought suit pursuant to §1983, alleging that his superiors violated the First Amendment by retaliating against him for filing the union grievance. The district court granted summary judgment to the defendants on the ground that his speech was not protected because it was part of his official duties. Bivens appeals.

In their opinion, Judges Posner, Manion and Evans affirmed. One of the several elements of Bivens' §1983 claim is that he engaged in speech protected by the Constitution. The Court agreed with the district court that Bivens had an obligation, as part of his job, to report his concerns about lead contamination. It also agreed that any such reports to his superiors would not be protected under the Supreme Court's Garcetti decision. Here, however, the speech was not through Bivens' chain of command but as a union grievance. The Court was unwilling to conclude, because of the availability of an alternative holding, that the union grievance could not be protected speech. To be protected, the speech must also address a matter of public concern. The Court looked to the content, the context and the form to determine whether the speech addressed a matter of public concern. The court concluded that the context -- Bivens' own illness -- and the form -- an internal union grievance -- were more consistent with the vindication of a private, rather than a public, interest. Although the content referenced a subject of potential public interest, the Court concluded that Bivens was not attempting, by his speech, to bring this safety issue into the open. Being purely private, the speech was not protected and retaliation claim fails. 

Highly Inflammatory Evidence Properly Excluded At Trial

LEWIS v. CITY OF CHICAGO (December 21, 2009)

Donna Lewis was an officer in the tactical unit of the Chicago Police Department in 2002 when Lt. Terrence Williams became her supervisor. When she volunteered for a special security detail in Washington DC, Williams took her off the list. Lewis filed a grievance, alleging that it was a gender-based decision. She claims that she was the victim of several instances of retaliation after she filed the grievance. She filed an EEOC charge concerning both the security detail and retaliation. She alleges that the very next day Williams directed her to assist a narcotics team operation. During the operation, another officer accidentally struck her with a sledgehammer, breaking her neck. She is now on permanent disability. She filed suit. Although the court originally granted summary judgment to the defendants, the Seventh Circuit reversed her gender discrimination claim against Williams and the City and the retaliation claim against the City. At trial, a jury found in favor of the defendants. The court denied Lewis' motion for new trial. Lewis appeals.

In their opinion, Judges Evans and Sykes and District Judge Simon affirmed. Lewis raised four categories of error: jury instructions, evidentiary errors, prejudicial closing argument and insufficient evidence. With respect to the seven instruction challenges, the Court found the instructions to be proper or that Lewis either did not object or waived her objection. Likewise, with respect to Lewis' several evidentiary objections, the Court found no error. Specifically, the Court agreed that allowing Lewis to testify regarding the incident in which she suffered a broken neck at the hands of a fellow police officer would have been highly inflammatory. She was allowed to present evidence that she was diverted to a dangerous assignment. The Court also rejected her arguments with respect to the defendants' closing argument and the sufficiency of the evidence.

Discrimination Claims Fail In The Face Of Substantial Evidence Of Failure To Meet Expectations

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.

Failure To Pursue Complaint Regarding Racial Comments Forecloses Hostile Environment Conclusion

FORD v. MINTEQ SHAPES AND SERVICES (November 24, 2009)

Dennis Ford has been employed as a forklift operator for Minteq for many years. Throughout those years, he has been the only African-American employee at his facility. In 2007, Ford brought a race discrimination claim against Minteq. He complained that a coworker referred to him as "black man," that a supervisor called him a guerrilla, that he was not allowed to bring his grandchildren to a holiday party and that he was retaliated against for seeking outside medical attention for an on-the-job injury. The district court granted summary judgment to Minteq. Ford appeals.

In their opinion, Judges Bauer and Wood affirmed. The Court noted that Ford's racial harassment claim required proof of an abusive work environment. The factors to be considered in determining whether the employer's conduct is severe and pervasive are the frequency and severity of the conduct, whether it is physically threatening and whether it interferes with the complainant's job. The Court concluded that Ford's complaints, individually and in the aggregate, did not rise to that level. Specifically with respect to the "black man" comments, the fact that Ford complained only once and never followed up with his employer on that complaint would not allow a reasonable juror to find that it rose to the level of harassment. The Court also concluded that Ford failed to present sufficient evidence on his disparate pay and retaliation claims to reach a jury.

Plaintiff Fails To Create Issue Of Fact With Respect To Employer's Non-Discriminatory Reasons For Actions

SCRUGGS v. GARST SEED CO. (November 20, 2009)

Dayna Scruggs worked for Garst Seed Company as a Research Technician. Curtis Beazer became her supervisor in 1995. Scruggs and Beazer did not get along. In fact, Beazer did not get along with a number of people. He made many derogatory remarks directed at Scruggs, several of them with a gender bias. In 2004, company management decided to demote or sever Beazer. Before they could do so, however, Garst was purchased by a competitor. New management decided to eliminate Scruggs' position. Scruggs filed an EEOC charge in December 2004 in response. In 2005, Scruggs applied for a Research Assistant position as part of the restructuring. New management did not hire Scruggs -- instead selecting the incumbent (a man) in the Research Assistant position with Garst. Scruggs filed a lawsuit, alleging retaliation and hostile work environment. The district court granted summary judgment against Scruggs. Scruggs appeals.

In their opinion, Judges Bauer, Wood and Williams affirmed. Scruggs' retaliation claim had two prongs -- that her technician position was eliminated and that the company failed to hire her for the Research Assistant position. Instead of addressing the elements of her retaliation claim, the Court went directly to the company's reasons for its actions. If Scruggs cannot create a material issue of fact with respect to whether the reasons were pretextual, she loses. The Court concluded the Scruggs failed to raise an issue of fact with respect to either the elimination of her technician position or her failure to be hired for the assistant position. Her technician position was eliminated as part of a restructuring and the company's decision to hire someone else for the assistant position was based on their evaluation of qualifications. Summary judgment was appropriate. With respect to the hostile work environment claim, the Court considered that the occasional inappropriate comments, which were not physically threatening, by someone who made such comments to males and females alike did not rise to the level of comments that alter the terms and conditions of employment.

Failure To Even Contest Evidence Of Not Meeting Employer's Expectations Defeats Title VII Claim

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.

FMLA Retaliation Claim Fails Where Decisionmaker Was Not Aware Of Leave When He Fired Employee

LONG v. TEACHERS’ RETIREMENT SYSTEM (October 23, 2009)

The Illinois Teachers’ Retirement System (“TRS”) manages the pension benefits of Illinois’ retired teachers. For almost two decades, Julie Long received favorable performance reviews at her job there. During the mid-2000s, however, her performance deteriorated. She missed a lot of work, made a number of errors in processing data, and failed to conduct required training. TRS’ personnel manager, Gina Larkin, met with Long and her immediate supervisors in late 2005. Larkin learned of Long’s performance problems and her absences. She suggested that Long might be eligible for FMLA leave. Long applied for and took intermittent FMLA leave from October – January 2006. Larkin met with Long’s supervisors again and learned that Long’s performance and attendance issues remained uncorrected. Larkin recommended to Jon Bauman, the Executive Director, that Long be fired. Bauman, after reviewing Long’s evaluations and speaking with her supervisor, decided to fire her. Long brought suit, alleging that her termination was in retaliation for taking FMLA leave. The district court granted summary judgment to TRS. Long appeals.

In their opinion, Chief Judge Easterbrook, Judge Sykes and District Judge Kendall affirmed. The FMLA does not allow an employer to discriminate against an employee for taking FMLA leave. Here, two of the three elements of a claim of discrimination – protected activity and adverse employment action --- are not disputed. The issue on appeal is whether there is a causal connection between the two. In order to do that, stated the Court, Long had to produce evidence that the decisionmaker acted with an unlawful purpose. Bauman had the only authority to fire a TRS employee. The record shows that Bauman not only did not act discriminatorily – he did not even know about Long’s FMLA leave. While the “cat’s paw” doctrine sometimes imputes a subordinate’s intent to a supervisor, the “singular influence” requirement of that doctrine does not exist here. The Court also rejected Long’s arguments that discriminatory intent could be inferred from TRS’ failure to follow its own disciplinary policy (the Court concluded that it did follow it) and from the sudden decline in her performance evaluations (the Court noted that the decline in evaluations prior to the protected activity does not support the inference.)  

Defendants' Lack Of Knowledge Of Plaintiffs' Political Affiliation Precludes First Amendment Retaliation Claim

GUNVILLE v. WALKER (October 9, 2009)

Robert Gunville and Richard Oakley had both worked for the Illinois Department of Corrections for over twenty years, all during Republican administrations, when a Democratic governor was elected in 2003. Both were laid off within months of the new administration’s inauguration. Gunville was an active member of the Republican Party while Oakley had a record of voting in Republican primaries. Gunville and Oakley brought suit, alleging a violation of their First Amendment rights. They also allege a violation of their Fourteenth Amendment rights as a result of their placement on a reemployment list for only their last county of employment. The district court granted summary judgment to the defendants. Gunville and Oakley appeal.

In their opinion, Judges Manion, Rovner and Sykes affirmed. In first addressing their First Amendment claim, the Court noted that there was no dispute that their speech was constitutionally protected and that they suffered a deprivation. The issue on appeal was whether the layoff came as a result of their political affiliation. In order to establish the unlawful motivation, the plaintiffs must first establish that the defendants knew of their political affiliation. After concurring with the district court's hearsay ruling on one particular statement, the Court concluded that there was a complete absence of evidence that the persons deciding which jobs to eliminate knew of plaintiffs' political affiliations. The Court came to the same conclusion with respect to the Fourteenth Amendment claims. The due process clause does not provide an opportunity to challenge the meaning of a regulation, the relief plaintiffs sought. To the extent that plaintiffs assert political retaliation, the due process argument suffers from the same complete absence of evidence as the First Amendment claim.

Municipal Liability Cannot Be Based On Retaliatory Firing By Department Head Who Did Not Have Final Policymaking Authority

WATERS v. CITY OF CHICAGO (September 2, 2009)

Daniel Waters was a painter in the Chicago Department of Transportation (CDOT). In 2000, he refused a request by his supervisor to participate in a political campaign. At about the same time, he twice contacted local investigative journalists. On one occasion, he complained about a bridge that he thought was in such a state of disrepair that it was a danger to the public. On the other occasion, he complained that the City was making some improvements to a piece of property and that it did not own. Several of his superiors were unhappy with his conduct. He was transferred into a job working for a supervisor for whom he had worked before several times. Their relationship was strained, at best. Within a matter of weeks, Waters had several run-ins with his supervisor and was reported multiple times for violent behavior. A deputy commissioner recommended his firing. The department did not act on the recommendation. Department policy required that Waters be given an opportunity to respond to the charges of violence before any discipline was handed out. Waters provided his side of the story -- but the department ruled that his conduct amounted to violence in the workplace. The deputy commissioner resubmitted his recommendation. A pre-termination hearing was held. Commissioner Rice, who held the only authority to fire, terminated Waters. Waters sued the City under § 1983, alleging First Amendment retaliation. A jury awarded Waters $225,000 in damages and the court awarded more than $1 million in back pay, front pay and pension benefits. The City appeals.

In their opinion, Judges Manion, Rovner and Tinder vacated, reversed and remanded. The Court stated that, under Monell, a city can be liable for a constitutional deprivation but only if it resulted from a policy or practice, or that the injury was caused by someone with final policymaking authority. Waters relied on the latter prong. Final policymaking authority comes from state and local law, though. Here, said the Court, local law gives policymaking authority to the City Council, which has delegated it to the Commissioner of Human Resources. Although the Court recognized that department commissioners do have some authority to execute existing policy, they do not have policymaking authority. Since Commissioner Rice had no such authority, municipal liability cannot be based on her actions. The Court went on to note that Waters presented no evidence that Rice’s termination was in retaliation for his exercise of his First Amendment rights. Even if she had policymaking authority, the absence of that evidence would have defeated his claim.  

Sexual-Harassment Plaintiff Cannot Establish A Tangible Employment Action When She Simply Stopped Reporting For Work

ROBY v. CWI, INC. (August 27, 2009)

Misty Roby was a cashier at a CWI retail store. For months, she experienced sexual-harassment by a store supervisor, Joe Schiavone. Notwithstanding the fairly frequent and offensive behavior, she did not report it. Only after another supervisor overheard a comment she made to a coworker and specifically asked her about it did she report the conduct. The store manager immediately reported it to Human Resources, which conducted an investigation. The company reorganized the store schedule so as to minimize the times Roby and Schiavone worked together. As a result of the investigation, Schiavone received a written warning. Roby was informed of the results of the investigation. Several weeks later, when Roby complained about having to close the store with Schiavone, she was allowed to go home and stay home until the store manager returned from vacation. Although the company told her that they could not accommodate her desire to never be scheduled at the same time as Schiavone, they kept her on the schedule and expected her to come to work. She simply never returned. Instead, she brought an action under Title VII alleging the sexual harassment and also alleging that she was retaliated against for her complaints. The district court granted summary judgment to CWI. Roby appeals.

In their opinion, Judges Flaum, Williams and Lawrence affirmed. In order to prevail on a hostile work environment claim, the Court noted that Roby had to demonstrate employer liability. Here, because Schiavone is a supervisor, the company is strictly liable if there was a tangible adverse employment action. If not, however, the company may assert an affirmative defense that they used reasonable care in trying to prevent the harassment and that Roby failed to take advantage of corrective opportunities. The Court found no tangible employment action. The record presented insufficient support for an actual discharge or for the degree of intolerable working conditions necessary to establish a constructive discharge. Although Roby continued to have to work with Schiavone, CWI made an effort to minimize their contact. Without a tangible employment action, the Court found that the company met its burden on the affirmative defense. It conducted an effective investigation and disciplined Schiavone. Roby, on the other hand, failed to report the behavior when it first occurred and did not take advantage of the company’s anti-harassment policy. With respect to Roby's retaliation claim, she must establish the presence of a material adverse employment action. The Court found no such evidence in the record.

Impressive Credentials, Work Experience And Job Evaluations Are Not Enough To Demonstrate That An Employee Is Meeting Her Employer's Legitimate Expectations At The Time Of An Adverse Employment Action

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.

An Employer Need Not Reinstate An Employee On FMLA Leave Before Firing Him

DAUGHERTY v. WABASH CENTER, INC. (August 14, 2009)

Michael Daugherty worked for Wabash Center, Inc. for seven years. He had an excellent employment record. He was promoted on several occasions and always received positive reviews. Things changed in 2006. He started having trouble with his coworkers and his staff. He was given a written reprimand for abusive e-mails and unacceptable management style. Permission for a month-long vacation was revoked. Daugherty immediately visited his doctor and requested two weeks FMLA leave from the Center. His request was granted. In his absence, the Center discovered that he had used the Center's credit card to make at least five unauthorized purchases. It also discovered that he had failed to follow through on some key responsibilities. When Daugherty was due back from his leave, the Center presented him with a corrective action plan -- which he refused to sign. He instead requested additional medical leave. The Center granted his request but asked that he not access the network while on leave and asked him for his keys and passwords. He refused. After further analysis revealed that he had deleted thousands of files while on leave, the Center fired him. Daugherty filed suit, alleging a violation of the FMLA. The court granted summary judgment to the Center. Doherty appeals.

In their opinion, Judges Posner, Kanne and Sykes affirmed. Under the FMLA, the Court stated, an employee is not entitled to any right he or she would otherwise not be entitled to absent the leave. The FMLA does not prohibit an employer from terminating an employee's employment during FMLA leave if it discovers misconduct that justifies the termination. Here, Daugherty admitted most, if not all, of the misconduct. The Center did not violate the FMLA by failing to reinstate Daugherty. The Court also rejected the Daugherty's alternative claim that the Center retaliated against him for taking leave. The undisputed evidence in the record is that the Center fired Daugherty for multiple instances of misconduct. Finding no factual dispute, the Court affirmed the summary judgment for the Center. 

Prompt And Appropriate Action By Employer, Combined With Employee's Own Lack Of Cooperation, Shields Employer From Liability In Title VII Suit

PORTER v. ERIE FOODS INTERNATIONAL (August 7, 2009)

Tremeyne Porter, an African-American man, was an employee of a temporary placement agency. He was assigned to work the third shift at Erie Foods, a food production facility. He was the only African-American on the shift. After a few weeks without incident, things changed. One night, co-workers showed him a rope noose hanging on a piece of machinery. His supervisor ordered its removal, although she then proceeded to hang it on the bulletin board in her office, in plain view of the entire staff. She conducted an investigation as to its origin, unsuccessfully. The next night, a human resources representative held a meeting with the entire shaft. He advised the workers that harassment would not be tolerated. He later met privately with many of the shift workers as well as the shift supervisor. Porter was asked several times if he knew who was responsible for the news. He said he did not. In another incident, a co-worker showed Porter a noose. Porter felt threatened and did not disclose the identity of the culprit. Porter declined an offer to move to a different shift. Porter's supervisor continued to investigate, asking other shift supervisors if they had heard anything. Porter reported the incidents to the local police, identifying individuals, but asked that nothing be done. Porter left Erie Foods after about a month. He provided the company a statement with additional information about the incidents, including the identity of the worker who had handed him the noose. That worker was fired. Porter brought an action under Title VII, alleging hostile work environment and constructive discharge for engaging in a protected activity. The district court granted summary judgment to Erie Foods. Porter appeals.

In their opinion, Judges Posner, Ripple and Rovner (concurring) affirmed. With respect to the hostile work environment claim, the Court noted the elements of the claim: that Porter was the subject of harassment, that it was based on race, that it was so severe or pervasive so as to alter his working conditions, and that there is a basis for employer’s liability. The Court found the first three elements met. With respect to employer liability, however, the Court noted that an employer can avoid liability if it takes prompt and appropriate action that is likely to prevent a recurrence of the conduct. The Court concluded that Erie Foods had done just that -- the noose was taken down, there was an immediate inquiry, supervisors were informed, human resources met with the entire shift, the anti-harassment policy was reiterated, and individual meetings were held with many of the workers. The Court also noted that Porter’s own lack of cooperation hindered the investigation. Porter had a responsibility to provide his employer with additional information if he is to expect his employer to be able to respond effectively. On the record, the Court found Erie Foods not liable. On the constructive discharge claim, the Court explained that an employee must show working conditions “so intolerable” that any reasonable person would resign. Again, based on Erie Foods’ reasonable response to the initial incident and Porter’s failure to bring the additional incidents to the company’s attention, the Court concluded that Porter failed to establish a constructive discharge. Since there is no constructive discharge, Porter’s retaliation claim fails.

Judge Rovner concurred. She agreed with the majority that a reasonable juror could find that the company acted reasonably. She disagreed, however, with the majority’s treatment of the act of Porter’s supervisor displaying the noose, even if innocently, on her bulletin board for hours. Since Porter never complained of that conduct, however, he is not entitled to complain that the company failed to respond to it or correct it.

Village Employee's Speech Of Public Importance Becomes Unprotected Private Speech Only When It Is Solely Motivated By The Employee's Personal Interest

VALENTINO v. SOUTH CHICAGO HEIGHTS (July 30, 2009)

Sandra Valentino worked for the Village of South Chicago Heights for several years. In 2001, she became suspicious of Mayor David Owen's hiring practices. She was aware that the Village employed many of the mayor's friends and family members. She believed that many of these employees were on a “ghost payroll,” i.e., being paid for work they did not perform. She shared her concerns with William Bramanti, a former village employee who quit as a result of a dispute with the mayor. Bramanti submitted a FOIA request to the village for employee time records. At the same time, Valentino began to make copies of the daily employee sign-in sheets. In February of 2003, Bramanti accused the mayor publicly of ghost payrolling. The very next business day, the Village Administrator searched Valentino's desk, found the copies, and fired Valentino when she arrived for work. Valentino filed a § 1983 action against the Village, the mayor and others. She alleged retaliation in violation of her First Amendment rights. The district court granted summary judgment to the defendants. Valentino appeals.

In their opinion, Judges Rovner, Evans and Williams reversed and remanded. The Court first looked to whether Valentino's speech was constitutionally protected, i.e., whether she spoke as a private citizen on a matter of concern. The Court found it "well-established" that speech which protests government waste is entitled to constitutional protection. Although the Court recognized that Valentino had a private interest in determining whether she was receiving proper compensation, it concluded that her speech was protected since she was not motivated solely by those personal interests. The Court next addressed whether there was evidence that the protected speech was a motivating factor in her termination. The Court found the circumstantial evidence -- knowledge of her relationship with Bramanti, the search of her desk, the search and firing the day after Bramanti's public accusations, and a comment by the mayor threatening her employment -- sufficient to take that issue to a jury. That same evidence, as well as the fact that the sign-in sheets were on public display and were simply copied by Valentino, was enough for the Court to conclude that a jury could also find the village's stated reason for her termination pretextual. Thus, the Court reversed the summary judgment for the defendants. With respect to the Monell claim, the Court stated that the Village could be liable for the constitutional violation if it was caused by an individual with final policymaking authority. The question for the Court was whether Owens had final authority on matters of hiring and firing. The Court concluded that the evidence was conclusive that Mayor Owen made personnel decisions for the village without any meaningful oversight, and thus had final authority. The Court reversed the district court with respect to the village's liability under Monell. Finally, the Court rejected defendants' argument that the Illinois Tort Immunity Act immunized them. That Act immunizes village officials from certain discretionary policy decisions. The decision to fired Valentino was not a policy decision -- the defendants are not entitled to immunity.

Speech, Though Tangentiallly Related To Abuse Of Public Resources, Is Not Protected Speech When It Was Spoken For Purely Personal Reasons

MILWAUKEE DEPUTY SHERIFF'S ASSOCIATION v. CLARKE, JR. (July 21, 2009)

In mid-2005, possibly in response to public criticism of his use of police officers as escorts, Milwaukee County Sheriff Clarke posted a message on the department bulletin board: "If you are afraid or have lost your courage, you may go home, otherwise you will ruin the morale of others." Michael Schuh, a veteran police officer, was offended. He submitted a statement to the union newsletter: "If you are afraid or you have lost your courage and need two deputies and a sergeant to escort you every time you fly in and out of the airport and patrol deputies to drive by your house when you're out of town you should resign and go home! Then you would lift the morale of this whole department (a.k.a. office)." A few days later, Sheriff Clarke assigned Schuh to a newly-created patrol in the most dangerous part of the town -- in full uniform, without a partner, and without a car. At about the same time, Sheriff Clarke issued a revised departmental confidentiality policy. The policy required employees to keep "official agency business" confidential and not to speak on behalf of the department. Officer Schuh and the union brought suit, alleging violations of state law as well as First Amendment retaliation under § 1983. The suit also challenged the confidentiality policy as an unlawful prior restraint. The district court granted summary judgment to Sheriff Clarke on the federal claims. Schuh and the union appeal.

In their opinion, Judges Kanne, Rovner and Evans affirmed. The Court applied the three-step First Amendment retaliation analysis. The only step in dispute was whether Schuh's speech was constitutionally protected. To be protected, the speech must be of public concern. The Court considered the content, form and context of Schuh's statement. The Court noted that the form, a union newsletter, and the content, the Sheriff's abuse of department resources, could weigh in favor of constitutional protection. The context of the statement, however, led the Court in a different direction. The Court concluded that the context of the speech showed that it was a purely private matter. It did not focus on the fiscal repercussions of the Sheriff's conduct but rather on the personal impact of his original statement. Since the speech is not protected, Schuh's retaliation claim fails. With respect to the prior restraint claim, the Court first looked to whether the confidentiality policy applied to protected speech – i.e., the speech of a citizen on a matter of public concern. Since the policy on its face applied only to "official agency business," the Court concluded that it must apply only to speech related to an employee's professional duties. Since it did not regulate protected speech, it was not an unlawful prior restraint.

Evidence In The Record That The Promoted Employee Was Better Qualified Than Plaintiff Defeats Her Gender And Race Discrimination Claim

HOBBS v. CITY OF CHICAGO (July 21, 2009)

Kelly Hobbs was an African-American woman employed by the City of Chicago's Department of Transportation since 1989. She began her employment as a truck driver and was promoted to Lot Supervisor in 2000. She applied for a Foreman position in both 1997 and 2000and was rejected both times in favor of white males. She filed a charge of gender and race discrimination in January of 2005, shortly after she found out that another white male had been promoted to Acting Foreman. She complains that, after her discrimination charges were filed, she was disciplined on several occasions, her car was vandalized and her job duties were changed. In 2006, she brought suit against the City, alleging race and gender discrimination and retaliation claims against the City under Title VII, race discrimination and retaliation claims against the individual defendants under § 1981, and a hostile work environment claim against the City. The district court granted summary judgment to the defendants on all claims. Hobbs appeals.

In their opinion, Judges Bauer, Kanne and Williams affirmed. The Court considered the Title VII and § 1981 race and gender discrimination claims together. Under the indirect method of proof, the Court concluded that Hobbs failed to establish she was passed over in favor of a person similarly or less qualified than she. The record showed that the male was more qualified, at least with respect to those skills that were part of the job qualifications. Hobbs also failed to show that the City's reasons for promoting him were pretextual. The Court admitted that the process by which he was promoted was somewhat questionable and may suggest favoritism, but did not prove discrimination. Her retaliation claims failed as well. She failed to show a materially adverse job action and she failed to establish a causal connection between her charges and the discipline imposed on her. The Court was troubled by her charge of automobile vandalism and the City's failure to investigate it, but concluded that the mere fact that it occurred after she filed charges was not enough to survive summary judgment. Finally, the Court concluded that the same facts upon which she based her retaliation claim were similarly insufficient to rise to the "severe or pervasive" threshold of hostile work environment.

City's Failure To Promote (Four Times) Is Not Actionable Where Interview Process Was Reasonable And Fair

STEPHENS v. ERICKSON (June 30, 2009)

Lesley Stephens, an African American, has worked for the City of Chicago since 1979, except for a disability leave from 1988-1993. He has been a truck driver, an acting foreman, and an accident adjuster, all within the Department of Fleet Management. He filed a lawsuit against the City in 1997, alleging that it engaged in racially discriminatory hiring and promotion practices. Shortly after he settled the lawsuit in 2004, Stephens applied for four promotions. He was passed over each time. He again brought suit, alleging violations of § 1981 and Title VII. He claims that the City retaliated against him for his earlier lawsuit and his complaints of discrimination. The district court granted summary judgment to the City. Stephens appeals.

In their opinion, Judges Kanne, Wood and Sykes affirmed. The Court stated that it would apply the same elements to the claims under § 1981 and Title VII. Stephens chose to establish his retaliation claim under the direct method of proof. The principal issue on appeal was the causal connection between Stephens' protected activity and the City's failure to promote him. The Court set out the promotion procedure in detail – and stated that Stephens produced no evidence that any of the several employees who interviewed him for the promotions even knew of the earlier lawsuit or his prior complaints of discrimination. The Court noted that in each case, the City interviewed several applicants, rated the applicants on the same criteria, and recommended the applicant with the highest score. The Court also rejected Stephens' argument that the head of the department retaliated against him by pre-selecting his preferred candidate by choosing him for an "acting" position, leading the interviewers to a predetermined selection. Nothing in the record linked the department head to any of the interviews or any of the interviewers. The Court concluded that Stephens simply had not produced evidence sufficient to create an inference of retaliation. The Court also concluded that the retaliation allegations other than failure to promote (menial job assignments, intimidation, segregation, etc.) would not dissuade a reasonable employee from making a charge of discrimination and were therefore not "materially adverse" and actionable.

An Employer's Retaliation For An Employee's Wholly Verbal Complaints Is Not Actionable Under The Fair Labor Standards Act

KASTEN v. SAINT-GOBAIN PERFORMANCE PLASTIC CORP. (June 29, 2009)

Kevin Kasten worked at one of Saint-Gobain's facilities in Wisconsin. In 2006, Kasten received three warnings regarding his use of the on-site time clock. The third warning included a statement that it was the last step of the disciplinary process and that another violation could result in further discipline, up to termination. Kasten alleges, and Saint-Gobain denies, that he verbally complained about the legality of the time clock’s location about the same time he received the third warning. He alleges that his complaints consisted of a) telling his supervisor, b) telling a human resources representative, c) telling a lead operator and d) telling the lead operator he was considering a lawsuit. Saint-Gobain suspended Kasten after his fourth violation and later terminated his employment. Kasten alleges, and Saint-Gobain denies, that he also complained about the legality of the clock’s placement at a meeting regarding his suspension. Kasten brought an action under the Fair Labor Standards Act, alleging that he was terminated in retaliation for his complaints. The court granted summary judgment to Saint-Gobain. Kasten appeals.

In their opinion, Judges Bauer, Flaum and Kapala affirmed. Kasten alleges that Saint-Gobain violated the FLSA when it terminated him after he "filed any complaint." The Court focused on two issues: whether the FLSA's use of the term "complaint" includes informal, intra-company complaints not formally filed with any body and whether it includes wholly verbal complaints. The district court had answered the first question yes but the second question no. With respect to the intra-company complaint issue, the Court relied on the plain language of the statute and the majority of other appellate courts to conclude that "any complaint" includes internal complaints. If then decided, however, that purely verbal complaints are not protected. The Court relied again on the plain language of the statute and the use of the word "file," which connotes the use of a writing, and the fact that Congress used broader language (i.e., “opposed any practice”) in analogous provisions of other statutes.

Employee Is Unable to Show Pretext When the Record Supports the Defendant's Honest, Even If Mistaken, Belief That the Employee Threatened His Co-workers

BODENSTAB v. COUNTY OF COOK (June 22, 2009)


Dr. Philip Bodenstab was an anesthesiologist at Cook County Hospital from 1993 until 2002. In February of 2002, Bodenstab, recently diagnosed with cancer, had a telephone conversation with a friend during which he threatened to kill his supervisor and co-workers. The friend contacted theFBI and Chicago police. The FBI and police contacted the director of the hospital and told him that the threats were credible. The hospital suspended Bodenstab with pay. Over the next several months, Bodenstab went through a series of assessments, evaluations and treatments. After his discharge from treatment and evaluation by the hospital's own psychiatrist, the hospital conducted a pre-disciplinary hearing on the major infraction of threatening to kill coworkers. The hearing officer concluded that the infraction warranted discharge. The hospital fired him. Bodenstab brought an action against Cook County and several individuals seeking to overturn the administrative decision and bringing affirmative allegations that his discharge violated the Americans with Disabilities Act, the First Amendment and due process. The district court granted summary judgment to the defendants. Bodenstab appeals.

In their opinion, Chief Judge Easterbrook and Judges Flaum and Manion affirmed. The Court rejected each of Bodenstab's arguments in turn. The ADA disparate treatment claim failed because Bodenstab presented no evidence challenging the sincerity of the hospital's belief that he threatened to harm his co-workers. Even if they were mistaken, the Court held that Bodenstab could not show pretext if they reasonably believed the threats. The ADA failure to accommodate claim failed because there is no obligation to accommodate conduct -- and conduct was the reason Bodenstab was fired. The First Amendment claim failed for the same reason the ADA disparate treatment claim failed. Bodenstab was fired because he threatened to kill coworkers -- not because of his speech -- and Bodenstab introduced no evidence otherwise. The Court next rejected Bodenstab's common-law certiorari claim to review the administrative decision on the merits. That claim presents the question of whether the record contains any evidence which fairly tends to support the findings -- it does. Finally, the Court concluded that Bodenstab was afforded adequate notice and a pre-termination hearing that complied with the mandates of due process.

A Teaching Reassignment To Teach The Same Subject In The Same School Under The Same Conditions To A Different Grade Does Not Meet The Burlington Northern Test Of Materially Adverse Employment Action

LUCERO V. NETTLE CREEK SCHOOL CORPORATION (May 29, 2009)

Sharon Lucero, a female Hispanic, was hired by the Nettle Creek School Corporation in 2001 to teach English at the Hagerstown Junior - Senior High School (the "School"). The School served students in grades 7 through 12 in the same building. Lucero was informed, at the time of her hire, that she could be assigned to teach English at any of the grade levels. For her first two years, Lucero taught 7th and 8th grade English, respectively. For the third year, the School assented to her request to teach 12th grade English. The year progressed quite differently than her prior years of service. The principal criticized her performance, the students complained of her teaching style, and the parents complained of her grading policies, to name just a few of her problems. In addition, two specific incidents late in the year stood out. In one, a student showed a photograph in class of a partially naked classmate. In another, a group of students left several Playboy magazines in her classroom. The students involved in these two incidents were all suspended. After the school year, the School hired a new English teacher, a white male. The school assigned the new teacher to 12th grade English and reassigned Lucero to 7th grade English. Lucero sued the School, challenging her reassignment under theories of retaliation, discrimination, hostile work environment and breach of contract. The district court granted summary judgment to the School. Lucero appeals.

In their opinion, Judges Bauer, Flaum and Evans affirmed. The Court addressed each of Lucero’s legal theories in turn. With respect to her retaliation claim, the Court noted that she was required to establish that she suffered a materially adverse employment action. The Court addressed the reassignment in light of the Supreme Court's decision in Burlington Northern. Burlington Northern tells us that a court should apply an objective standard for assessing whether the reassignment might have dissuaded a reasonable person from making a charge of discrimination. Here, Lucero was reassigned to teach the same subject in the same building under the same conditions. The Court concluded that her reassignment was not a materially adverse action. The Court similarly found that Lucero failed to demonstrate a materially adverse employment action with respect to her discrimination claim, albeit under a different test. Since her compensation and work conditions were unchanged, Lucero attempted to establish that her reassignment was an adverse employment action by asserting that it would negatively impact her career prospects. The Court found that she failed to submit adequate evidence of a negative career impact and upheld the lower court on the discrimination claim. Next, the Court concluded that Lucero's allegations of hostile work environment failed as a matter of law. Although depicting inappropriate behavior, the Court concluded that they were isolated incidents, were not related to her gender or national origin, and did not support employer liability. Finally, the Court summarily rejected Lucero's breach of contract claims.

Evidence Of Retaliatory Motive Was Not Overwhelming But Was Sufficient To Affirm A Jury Award For FMLA Retaliation And Interference

RYL-KUCHAR v. CARE CENTERS, INC.(May 11, 2009)

Kathleen Ryl-Kuchar began working as a dishwasher at Care Centers, Inc. (“CCI”) at the age of 15. Seventeen years later, she held the salaried position of dietary consultant. Ryl-Kuchar became pregnant with triplets in 2002. She continued working on site until May of 2003, at which time she began working from home. She performed her normal duties with the blessing of CCI management, although her total hours dropped below 35 hours a week. With the help of her family, Ryl-Kuchar returned to work full-time shortly after she gave birth. Her return was short-lived, however. She soon commenced FMLA leave and never returned, deciding instead to resign. In mid-November, CCI’s employee benefits arm determined that Ryl-Kuchar had become a part-time employee in June and had therefore lost her eligibility for medical benefits. It retroactively canceled her health insurance effective the month before she delivered the triplets. Ryl-Kuchar brought an action under the FMLA, arguing that CCI interfered with her right to health insurance and retaliated against her for her decision to take FMLA leave. The jury awarded her damages. CCI appeals from the district court's denial of its motion for judgment notwithstanding the verdict.

In their opinion, Judges Flaum, Evans and Williams affirmed. The Court noted the heavy burden necessary to overturn a jury verdict. It reviewed the evidence – CCI’s inconsistent positions, the timing of its decision, and its concern about rising health care costs -- and found it sufficient to support the jury’s conclusion that Ryl-Kuchar met her burden of proof on both the retaliation and interference claims. The Court remanded for calculation of a fee award.

Driving Is Not A "Major Life Activity" Under The Americans With Disabilities Act

WINSLEY v. COOK COUNTY (April 22, 2009)

Marsalette Winsley, an African-American woman, worked for the Cook County Department of Public Health. In December 2003, she was a Family Case Manager, which required her to drive to her clients' homes. In early 2004, she was injured in a car accident. After a leave of absence, she was approved to return to work part-time, conditioned on minimal driving. For more than three years, the County attempted to accommodate her limitations, assigning and reassigning her to different tasks at different locations. Winsley took several more leaves of absence during that time. Her supervisors evaluated her poorly during those years for her problems with attendance and timeliness. Eventually, in May of 2007, Winsley's supervisor asked for improvement in her timeliness and absenteeism rates. Winsley quit her job without notice and never returned. She filed an action alleging that the County violated the Americans with Disabilities Act ("ADA") and Title VII and engaged in retaliation. The district court granted summary judgment to the County on all counts. Winsley appeals.

In their opinion, Judges Bauer, Ripple and Wood affirmed. The Court stated that the ADA requires that the claimant have a disability - defined as "a physical or mental impairment that substantially limits one or more major life activities." Although the statute does not contain a definition of "major life activity," an EEOC regulation does. The Court noted that driving, Winsley’s only potential impairment, is neither on the list nor does it share much in common with the items on the list (e.g., walking, seeing, hearing, breathing, etc.). The Court therefore concluded that driving did not qualify as a major life activity. The Court recognized that Winsley's inability to drive could impair a different major life activity (e.g., working), but concluded that she did not meet her burden of establishing a genuine issue of material fact on that claim. Therefore, her ADA claim failed. With respect to her Title VII claim, the Court concluded that she failed to meet her burden for several reasons: a) her only direct proof were her own bare assertions, b) she was unable to identify a similarly situated employee, and c) she was unable to rebut the County’s evidence that she was not meeting its legitimate expectations. Finally, with respect to her retaliation claim, the Court concluded that her evidence fell far short of the "hostile and abusive working environment" standard.

Summary Judgment Was Proper In FMLA Retaliation Case Where Plaintiff Presented No Evidence Of Discriminatory Intent

COLE v. STATE OF ILLINOIS (April 7, 2009)

Dynetta Cole was a receptionist for the State of Illinois. Her first year on the job was marked with many complaints about her performance, attendance and personality. After she was injured in a car accident, she took FMLA medical leave. She returned to work on a part-time basis after several weeks. Her performance and attendance issues continued. Cole’s supervisors ultimately presented her with an "employee improvement plan." The plan identified her attitude, her attendance and her performance as targeted areas for improvement. The plan required her to communicate more frequently about her schedule, become more aware of her tone and plan her daily schedule more efficiently. Her supervisors told Cole that she would be fired if she did not sign the plan. Cole refused to sign the plan -- Cole was fired. Cole brought suit against the State and her supervisors alleging retaliation for exercising her FMLA rights. The district court granted summary judgment to the defendants. Cole appeals.

In their opinion, Judges Manion, Evans and Tinder affirmed. The FMLA, stated the Court, makes it unlawful to terminate an employee for using FMLA leave. Cole chose the direct method of proof which required either an admission of discrimination or a "convincing mosaic" of circumstantial evidence that would allow the jury to infer discrimination. The Court agreed with the district court that Cole presented no evidence to suggest that her termination was anything more than her supervisors’ response to her refusal to sign the plan. Although her termination followed shortly after her leave, the Court noted that proximity in time by itself is rarely enough to create a material fact dispute. The court also rejected Cole's argument that the improvement plan itself constituted an adverse employment action. An adverse employment action must be one that would dissuade a reasonable employee from exercising her rights under the FMLA. Here, the improvement plan was merely her employer’s reasonable approach to improve her attitude and performance.

Employer Is Entitled To Deny FMLA Leave To An Employee Who Alters Certification Form To Add A Diagnosis Without The Physician's Knowledge

SMITH v. THE HOPE SCHOOL (March 30, 2009)

Tanum Smith was an aide at the Hope School, a residential facility for developmentally disabled children. On two different occasions in 2006, Smith was injured by students. After the second incident, Smith took some time off and received medical attention. Although an independent medical examination approved her return to work without restrictions, her primary care physician restricted her to light-duty and to assignments that did not require her to interact with the school's residents. The school assigned Smith to its dietary department so that she would not interact with residents. Later, she complained that a student approached her in the kitchen. She informed the school that she was leaving and would not return until the school provided her with a safe work environment. There is significant disagreement in the record over what happened next. What is not disputed is that Smith was absent from work many days and, when she submitted her FMLA paperwork, she had altered the physician’s certification form to add a diagnosis for "previous depression." The school found out about the alteration, denied her request for FMLA leave, and began disciplinary proceedings because of her absences. Ultimately, Hope School terminated Smith's employment because of the absences. Smith brought this action alleging that the school interfered with her FMLA rights and that they terminated her employment in retaliation for requesting FMLA leave. The district court granted summary judgment to Hope School. Smith appeals.

In their opinion, Judges Flaum, Williams and Kapala affirmed. The Court first addressed her interference claim. In order to prevail, the Court indicated that she must demonstrate that she was eligible for FMLA protection, that she was covered, that she was entitled to leave, that she provided notice, and that her employer denied her benefits. Here, the only issue is whether an employer can deny FMLA leave because an employee submits false paperwork. The Court agreed with the district court that an employer can deny a request for FMLA leave when an employee adds a diagnosis to the physician’s certification form without the physician's knowledge. The Court concluded that her retaliation claim was closely linked to the interference claim. Because Hope School was entitled to deny her request for leave, they were entitled to terminate her employment on account of her unexcused absences.

Employer Is Not Liable For Retaliation Under The "Cat's Paw" Theory Unless The Decisionmaker Is Wholly Dependent On A Non-Decisionmaker

STAUB v. PROCTOR HOSPITAL (March 25, 2009)

Vincent Staub was a technologist at Proctor Hospital - and also a member of the Army reserves. Although he managed to balance the two obligations for years, things began to deteriorate in 2000. One of his supervisors was clearly irritated with him because of his reserve obligations. She was very vocal about her dislike of the reserve and her desire to “ get rid of him." Staub, unfortunately, already had a checkered employment history at the hospital. In January 2004, she gave Staub a written warning. She accused him of failing to assist other members of the hospital staff and of leaving his work area. As a result, Staub was instructed to keep his supervisors advised of his whereabouts and schedule at all times. A few months later, a similar incident occurred. Staub was fired immediately by the Vice President of Human Resources. She fired Staub for not only failing to follow the earlier warning, but also for his past issues. Although Staub filed a grievance insisting that the original incident was fabricated by his colleague who did not like him, the HR VP did not investigate. Staub filed an action against the hospital under the Uniformed Services Employment and the Reemployment Rights Act (USERRA). The jury found for Staub and awarded damages. The district court denied Proctor’s motion for judgment as a matter of law or for a new trial. Proctor appeals.

In their opinion, Judges Manion, Evans and Tinder reversed and remanded. The Court stated that USERRA prohibits adverse action based on military status. In order to recover, however, a plaintiff must show that the decision-maker, and not just any coworker, harbored the animus. Here, the HR VP was the decision-maker. There is no evidence in the record that she harbored any animosity against Staub or his military responsibilities. Realizing this, Staub relies on the “cat's paw” theory. Under this approach, the discriminatory animus of a non-decisionmaker is imputed to a decisionmaker when the non-decisionmaker exerts singular influence over the decisionmaker to cause the adverse employment action. The Court emphasized that the employer is not liable unless the decisionmaker relies exclusively on the information provided and fails to conduct any investigation. Here, the Court found that the evidence did not support that conclusion. The evidence was clear that the decisionmaker did not rely exclusively on any information provided by other employees. In fact, the Court criticized the district court for even sending the issue to the jury. Instead, the Court suggested an approach whereby the trial judge makes a threshold determination on whether a reasonable jury could find this exclusive influence before even admitting into evidence the animus of a non-decisionmaker.

Psychologist's Section 1983 Claim Against City Fails When He Is Unable To Present Evidence Linking City's Decision With Reports Of His Connection To A Conservative Group

CAMPION, BARROW AND ASSOCIATES, INC. v. CITY OF SPRINGFIELD (March 24, 2009)

Dr. Michael Campion, through his firm, provided psychological evaluations. His clients included the City of Springfield. The services were provided pursuant to a contract executed in 2000 and automatically renewed annually. Timothy Davlin became mayor in 2003. Davlin was quite vocal in his criticism of psychological evaluations but continued the services on the advice of a city attorney. Beginning in mid-2004, several articles in the local newspaper criticized Dr. Campion for his involvement with a conservative group and his failure to disclose that involvement on his resume. An alderman reacted to the articles by pressuring Davlin to replace Dr. Campion. In mid-2005, the City Council unanimously approved a contract with a different psychologist. Although the city did not terminate the contract with Dr. Campion, it began referring all evaluations to the new psychologist. Dr. Campion brought an action against the city pursuant to § 1983, alleging that the city violated his First Amendment rights. The district court granted summary judgment to the city, concluding that Campion had not demonstrated that his speech was a motivating factor in the city's decision. Campion appeals

In their opinion, Judges Manion, Wood and Williams affirmed. The Court noted that the only issue before it was whether Campion produced enough evidence that his protected activity was a factor in the city's decision. The Court rejected Campion's argument that it was the mayor, not the City Council, that actually had the power to act. Illinois law authorizes only the City Council to enter into contracts. The evidence here supports the fact that it was the Council that acted. The Court concluded that there was a lack of evidence indicating that the City Council was retaliating against Campion because of his speech or associations.

Absence Of Evidence Linking Her Termination To Her Leave Dooms FMLA Interference Plaintiff

SIMPSON v. OFFICE OF THE CHIEF JUDGE OF THE CIRCUIT COURT OF WILL COUNTY (March 23, 2009)

Laura Simpson was the Director of the River Valley Juvenile Detention Center. In late 2002, Simpson began a period of paid sick leave. During her leave, the county auditor released a report that concluded that Simpson engaged in misconduct. The auditor recommended that she be fired. The report, which was initiated before Simpson went on leave and was initially focused on another county employee, concluded that Simpson a) allowed a psychologist under her authority to defraud the county, b) maintained an improper relationship with a juvenile detainee, and c) acted negligently in handling an attempted suicide. The Chief Judge fired Simpson. Simpson brought an action for interference with her FMLA rights and for retaliation. The district court granted summary judgment for the defendants. Simpson appeals.

In their opinion, Judges Ripple, Kanne and Tinder affirmed. On the interference claim, the Court noted that the only element in dispute was whether the defendants denied Simpson a benefit of the FMLA. The FMLA does not require an employer to reinstate an employee after leave if he would have terminated her regardless of whether she took the leave. The Court concluded that Simpson failed to provide any evidence that the termination of her employment was related to her leave. The Chief Judge relied on the conclusions contained in the audit report and its recommendation to terminate Simpson's employment. The Court addressed Simpson’s FMLA discrimination claim under both the direct and indirect methods. The Court concluded that the evidence did not support a retaliation claim, for much the same reason that it did not support an interference claim.
 

Whistle-Blower's Inability To Demonstrate Both Objective and Subjective Belief That Supervisor Acted Unlawfully Defeats Her Retaliation Claim

HARP v. CHARTER COMMUNICATIONS, INC. (March 16, 2009)

Mary Harp was a supervisor in the audit department at Charter Communications, Inc. ("Charter"). She was responsible for ensuring that Charter’s outside contractors performed the services for which they were retained. In early 2004, she concluded that one of Charter’s outside contractors sought payment for services it did not perform. Harp was unhappy with the way Charter treated the situation. She complained to the company that her direct supervisor violated the company's ethics code by authorizing full payment to the contractor. Shortly thereafter, the entire audit department was eliminated as part of a reduction in force. Harp brought an action against Charter under the Sarbanes-Oxley Act, alleging that her termination was in retaliation for her whistle-blowing. The district court granted summary judgment to Charter. Harp appeals.

In their opinion, Judges Ripple and Rovner affirmed (Tinder dissenting). In order to prevail, the Court noted that Harp had to prove a) that she engaged in protected activity, b) that Charter knew she was engaged in protected activity, c) that she suffered an unfavorable personnel action, and d) that the protected activity was a contributing factor in the personnel action. In order to meet the “protected activity” element, Harp must have actually believed that her supervisor’s conduct was unlawful and her belief must have been reasonable. The Court concluded that Harp's allegation that her supervisor authorized full payment to a contractor for services not performed had no subjective or objective basis for belief. The Court noted that Harp relied on conversations with a coworker in coming to her conclusion and that her own conduct was inconsistent with the belief. Thus, Harp was unable to establish even the first element of the test. The Court added that her claim would fail even if she met that element. The fact that the entire department was eliminated as part of a reduction in force would prevent her from establishing that her complaint was a contributing factor in her termination.

Judge Tinder dissented. Judge Tinder agreed with the legal test laid out in the majority opinion but disagreed with the majority's analysis and application of the facts to the law. He believed that Harp had a subjective belief that the company was a victim of fraud at the time she submitted her complaint and that her complaint could be reconciled with her deposition testimony. He also thought the circumstances behind the reduction in force were questionable enough to allow Harp to proceed with her complaint. For example, Charter argued that the reduction in force was necessary to save $800,000 a month -- yet the salaries of the entire department amounted to less than $200,000 per month. Also, Harp's severance form indicated that she would not be eligible for rehire -- a fact Judge Tinder thought atypical of a reduction in force. Finally, Charter began rehiring for the audit department within two months of the reduction. Judge Tinder thought that Harp had presented enough evidence to allow her claim to go to the jury.

Employee Who Was Truthful During Misconduct Investigation Not "Similarly Situated" To Terminated Employees

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.

Specific Discriminatory Remarks, Without Other Evidence Of Intent, Are Insufficient To Establish a Prima Facie Case Of Race Discrimination

NAGLE v. VILLAGE OF CALUMET PARK (February 4, 2009)

William Nagle, a white male in his fifties, is a police officer with the Village of Calumet Park and has been for almost thirst years. He has been active in union matters for most of that time. The Village hired a new Police Chief (Davis, a black male in his fifties) and Assistant Chief (Rockett, a white female in her forties) in 2002. Nagle claims that Davis discriminated against him on racial and age bases. The incidents he complains of include: a) Davis asked Nagle when he was going to retire, b) Davis referred to Nagle and his peer group on several occasions as “old white mother f*****s,” c) Davis selectively disciplined Nagle in comparison to younger officers, d) Davis said he might be getting “too old” for the job, e) Davis suspended Nagle for failing to assist another officer but did not discipline another officer for the same conduct, and f) Davis reassigned Nagle to duties that Nagle considered undesirable. Nagle also contends that Davis discriminated against him because of his speech. Nagle had spoken up publicly at a meeting in opposition to Davis’ manpower reduction plans. Davis later criticized him for doing so. A few days later, Nagle was suspended for violating a new sick-leave policy. Nagle filed charges with the EEOC. A few weeks later, Davis again suspended Nagle, this time for preparing a union grievance while on-duty. The suspension was overturned and Nagle was paid for the time. He nevertheless filed a second EEOC charge alleging that his suspension was on account of his age and race and in retaliation for the earlier EEOC charge. After being suspended again for violating the sick-leave policy, Nagle filed a third charge alleging that that suspension and an earlier reassignment were made due to his age and race and in retaliation for his complaints. Nagle brought an action, alleging age discrimination under ADEA and race discrimination and retaliation under Title VII. He also brought a § 1983 action, alleging a violation of the First Amendment. The court granted summary judgment for defendants on all counts. Nagle appeals.

In their opinion, Judges Flaum, Evans and Williams affirmed. The Court first addressed Nagle’s race and age discrimination claims. The Court noted the lack of direct evidence of discriminatory intent. But the direct method of proof also allows a plaintiff to rely on circumstantial evidence. That evidence could include a) suspicious timing, b) ambiguous statements or conduct directed at the protected group, c) evidence of better treatment of those outside the group. or d) evidence that a qualified employee was passed over in favor of a person outside the group. The Court refused to disregard Davis’ race and age-based remarks simply because they were not close in time to the complained of discrimination. A determination must be made on all the facts. Here, Nagle tried to buttress his claim by showing that Davis generally hired non-white or non-male applicants and that he treated non-white and non-male officers better. The Court found that Nagle failed to produce enough evidence on either point. In addition, most of Nagle’s complaints did not refer to adverse employment actions. None of the reassignments he complained of changed the terms or conditions of his employment or affected his career prospects. The Court concluded that Davis’ comments were the only evidence under the direct method and insufficient to establish a prima facie case, given their lack of proximity to the complained-of conduct. The Court addressed Nagle’s claims under the indirect method. Under that method, among other things, a plaintiff must show adverse employment actions and that similarly situated individuals were treated better. The Court’s analysis of these same issues under the direct method show the lack of claim under the indirect method. The Court proceeded to address Nagle’s retaliation claim, again under a direct and indirect method. Nagle failed to carry the day on his retaliation claim because, on most, he failed to prove that he suffered materially adverse employment decisions and on one other, he failed to prove that Davis even knew of his EEOC charge when Davis suspended him. Finally, with respect to Nagle’s First Amendment claim, the Court found the record sparse with respect to the particulars of the speech. Without more information about content, form, and relationship of the speech to his job as a police officer and his role as a union representative, the Court was unable to determine whether his speech was protected.

Person Who Directs Employee's Performance is Not a Supervisor Under Title VII if He Does Not Have Authority to Affect the Terms and Conditions of Employment

ANDONISSAMY v. HEWLETT-PACKARD CO. (November 7, 2008)

Sanjay Andonissamy, a French citizen of Indian ancestry, began his employment with Hewlett-Packard (“HP”) in April of 2001. He was in the country on an HP-sponsored H-1B visa. [The following is Andonissamy’s version of the story – HP’s version differs greatly] After the events of September 11, 2001, Ken Smith, Andonissamy’s supervisor, began to make derogatory racial, ethnic, and nationalist remarks to and about Andonissamy. Andonissamy frequently complained to Smith’s supervisor. Smith placed Andonissamy on remedial performance plans, allegedly in retaliation for Andonissamy’s complaints about Smith. Andonissamy began taking medication for anxiety and depression in 2002. He was being treated, but his physician never placed him on any restricted work schedule. Andonissamy’s condition worsened in early 2003 after the deaths of his brother and nephew. In May of 2003, Smith made a false report to the company implicating Andonissamy as a security threat. HP fired Andonissamy on June 23, 2003. On September 16, Andonissamy filed an EEOC complaint alleging national origin discrimination. The EEOC dismissed his complaint and issued a right to sue letter. Andonissamy filed a complaint in federal court in April of 2004. In addition to his complaints of national origin discrimination under Title VII and 42 U.S.C. § 1981, Andonissamy added a Family and Medical Leave Act count. In November of 2005, Andonissamy added Smith as a defendant on an assault count. The district court dismissed Smith and granted summary judgment to HP. Andonissamy appeals.

In their opinion, Judges Flaum, Williams, and Sykes affirmed. The Court first addressed Andonissamy’s Title VII hostile work environment claim. In order to survive summary judgment, Andonissamy had to show that a) he was subjected to unwelcome harassment, b) the harassment was based on his national origin, c) it was severe and pervasive enough to amount to a hostile and abusive environment, and d) there exists a basis for employer liability. The Court did not address the first three elements because it found no basis for employer liability. An employer can be vicariously liable for the conduct of a supervisor but can only be liable for the conduct of a co-worker if the company was negligent in discovering or remedying the harassment. A supervisor for purposes of Title VII is the person with the ability to affect the terms and conditions of the plaintiff’s employment. Smith, although he was Andonissamy’s “supervisor” in the sense that he directed his performance, was not a Title VII supervisor. There was no evidence that Smith was able "to hire, fire, promote, demote, discipline or transfer" Andonissamy. In order to hold HP liable for the acts of Smith as co-worker, Andonissamy had to establish that he complained or that the discrimination was so pervasive that HP’s knowledge could be inferred. Although Andonissamy did complain to Smith’s supervisor, he did not specifically complain about national origin discrimination. The Court agreed with the district court that Andonissamy therefore did not make out a Title VII claim. With respect to his companion § 1981 claim, the Court stated that a plaintiff can proceed under the direct or indirect method. The direct method requires evidence that an adverse employment action was based on the plaintiff's national origin. The Court found no such evidence in the record. Under the indirect method, a plaintiff must establish, among other elements, that he was meeting his employer’s legitimate performance expectations. The Court noted that the record contained numerous references to Andonissamy’s performance problems. The Court concluded that Andonissamy was therefore unable to establish a § 1981 claim under either method.

Andonissamy’s retaliation claim could also be established under the direct or indirect method. The indirect method for retaliation, like discrimination, contains an element that Andonissamy was meeting HP’s performance obligations. The Court rejected Andonissamy’s indirect method for establishing his retaliation claim for the same reason it rejected it for his discrimination claim. Under the direct method, Andonissamy had to establish that: a) he engaged in statutorily protected activity, b) his employer took an adverse employment action, and c) there was a causal connection between the two. The Court held that his complaints to HP did not include complaints of national origin discrimination. He was thus unable to establish the statutorily protected activity element. The Court concluded that he failed to establish a retaliation claim under either method. With respect to the FMLA count, the Court noted that Andonissamy never asked for any leave and did not exhibit any dramatic changes in behavior that would have put HP on notice of a need for leave. The Court agreed with the district court that Andonissamy failed to meet his burden under the FMLA.

Finally, the Court addressed Andonissamy’s assault claim against Smith. The assault claim was added to the case after the statute of limitations on the claim had expired. Andonissamy argued that the claim related back to the original claim and was thus permissible under FRCP 15(c). The Court affirmed the dismissal, stating that a claim against a new defendant relates back only when there is a case of mistaken identity. Since Smith supervised Andonissamy for years, that cannot be the case here.

Public Employee's Report of Her "Concerns" Fit Within Her Job Responsibilities and Was Not Protected Speech Under Garcetti

TRIGILLO v. SNYDER (October 31, 2008)

The Illinois Department of Corrections (“Department”) created a new position in 1999 dedicated to procurement matters. The Department hired Tracy Trigillo, an attorney, into the position. Her responsibilities included managing the Department’s contracting, purchasing, leasing, and inventories. She advised department officials on legal matters. She also was responsible for ensuring that contracts were properly bid and in compliance with the Illinois Procurement Act. From early in her employment, Trigillo had concerns about the Department’s procurement practices. She frequently advised her superiors of her concerns, with little effect. In late 2000, she drafted a report that summarized many of her concerns. The report was addressed to the Department of Central Management Services (“CMS”), an agency that provided procurement support to other state agencies. Trigillo also sent the report to the state Attorney General (“AG”). The report contained some allegations of misconduct, although it was principally addressed to policy disputes. Also in 2000, one of Trigillo’s staff members told her that Department officials had rigged the bid of a contract to benefit a friend of the governor. Although the incident predated Trigillo’s tenure in the Department, she was responsible for monitoring an extension of the contract. She reported the information to the FBI but did not advise her superiors that she had done so. When her term of employment was up for renewal in late 2001, the Department chose not to renew. Although she had received acceptable performance reviews during her tenure, her supervisor stated that her approach to procurement principles was “over-zealous” and that she was not a team player. Trigillo brought an action under 42 U.S.C. § 1983, alleging that she was non-renewed in retaliation for her reports of misconduct. The district court granted summary judgment to the defendants. The court separated her speech into three categories. The court held that: a) her routine communications with her superiors were part of her normal job duties and not as a citizen speaking out on matters of public interest, b) her CMS report referred principally to policy disputes and, to the extent it did raise matters of public interest, the Department’s interest in effective operations outweighed Trigillo’s interest as a citizen, and c) her report of misconduct to the FBI was constitutionally protected but there was no evidence that the person who decided not to renew her contract knew about it. Trigillo appeals.

In their opinion, Judges Rovner, Evans, and Williams affirmed. The Court first observed that the district court entered judgment just prior to the Supreme Court’s decision in Garcetti v. Ceballos. Garcetti reaffirmed the limitations imposed by the First Amendment on a public employer’s ability to restrict the “liberties employees enjoy in their capacities as private citizens.” The role of the Court is to determine whether the speech is that of an employee doing her job or that of a private citizen reporting on a matter of public interest. Garcetti requires an inquiry into whether the speech in question relates to the employee’s official obligations, even the more general ones. Trigillo conceded on appeal that her routine communications did not meet the Garcetti standard. The Court addressed the other two categories. The Court rejected defendants’ argument that the CMS report was per se “official” because it was required by statute. The Court noted that the statutory duty was very broad and applied to all employees. Instead of looking at a broad duty, the Court looked at the speech at issue and the responsibilities of the employee. The Court held that the CMS report did not meet the Garcetti standard. The report: a) made no “accusations”, b) sought “guidance” on procurement issues, c) was written on Department letterhead, d) was signed by Trigillo in her official capacity, and e) offered her group’s resources to any investigation. The Court held that the report fit squarely within Trigillo’s responsibilities of managing the procurement practices of the Department. With respect to the FBI report, the Court agreed with the district court that Trigillo had presented no evidence that the decision-maker even knew that she made the report. It could not have been the reason for her non-renewal.

Employee's Protest of Supervisor's Conduct for Personal Reasons Does Not Support a Title VII Retaliation Claim

TATE v. EXECUTIVE MANAGEMENT SERVICES  (October 10, 2008)

Alshafi Tate started working for Executive Management Services (“EMS”) as a commercial building cleaner in August, 2002. Dawn Burban was his immediate supervisor. Tate alleges, and Burban denies, that he and Burban began a long, consensual sexual relationship almost immediately. Tate also alleges, and Burban denies, that when he tried to end the relationship in late 2003, Burban threatened that he would lose his job if he did so. They both agree that they had a heated argument in Burban’s office in January 2004. Tate claims that it occurred when he finally insisted that he was ending the relationship. Burban claims it resulted from Tate’s refusal to perform a proper work assignment. Burban called her supervisor, who told Burban to tell Tate to go home. Burban also called her district manager and reported Tate for insubordination. Tate tried to reach both the supervisor and district manager the next day to relate his side of the story. Instead, he was told he was fired for insubordination. Tate filed suit, alleging both sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964. The jury found for EMS on the sexual harassment claim and in Tate’s favor on the retaliation claim. The district court denied EMS’ FRCP 50(b) motion on the retaliation claim. EMS appeals.

In their opinion, Judges Bauer, Posner, and Williams reversed. The Court laid out the elements of Tate’s Title VII retaliation action: a) a statutorily protected activity, b) the employer’s adverse action, and c) a causal relationship. To show he engaged in protected activity, the Court stated that Tate had to show a reasonable belief that he opposed a practice that violated Title VII. There is a split in the circuits on the issue of whether the rejection of a supervisor’s sexual advances could amount to protected activity. The Court decided that it did not have to take a position on the issue. Instead, it found no evidence that Tate actually believed Burban’s conduct was unlawful. The Court recognized that Tate protested Burban’s actions. But it found that the evidence supported the conclusion that his protests were personal, not because he believed that Burban’s behavior was unlawful. Title VII exists to protect employees from retaliation for protesting discrimination they, in good faith, believe they have suffered. Tate does not meet the protected activity element.