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

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.

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

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

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

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

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

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

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MOORE v. VITAL PRODUCTS (May 25, 2011)

Raymond Moore delivered and installed medical equipment for Vital Products. He claims that other Vital employees, including his supervisor, exposed him to sexual paraphernalia and pictures and made unwelcome sexual remarks. Vital suspended Moore for poor performance in January of 2005. On February 16, shortly after his return from the suspension, Moore injured his back. He has not worked at Vital since. Vital sent a COBRA notice to Moore on February 21. The contents of the letter suggested that Moore was no longer employed at Vital. Moore filed an EEOC charge on December 7, 2005. The charge included allegations of hostile work environment based on race and gender but did not include allegations of unlawful discharge. Moore brought suit pursuant to Title VII, alleging a hostile work environment, discriminatory discharge, and retaliatory discharge. He also alleged retaliatory discharge under the Illinois Workers' Compensation Act. Magistrate Judge Schenkier (N.D. Ill.) granted summary judgment to Vital but denied its request for sanctions. Moore appeals -- Vital cross-appeals the denial of sanctions and seeks sanctions on appeal.

In their opinion, Chief Judge Easterbrook and Judges Kanne and Wood affirmed in part, reversed in part, and remanded. The Court first affirmed the dismissal of the hostile work environment claim. Since Moore filed his EEOC charge on December 7, he must present evidence of a hostile work environment within the 300-day window, or after February 10. He failed to present any evidence of hostile work environment between February 10 and February 16, his last day on the job. The Court next affirmed the dismissal of his Title VII discriminatory discharge claim. A Title VII plaintiff can only bring claims that were included in his EEOC charge, or at least reasonably related to the contents of the charge. Moore did not include in his EEOC charge any allegations relating to his discharge. In fact, he stated in his charge that he was on medical leave, not discharged. The Court reversed, however, summary judgment on the Illinois Workers' Compensation Act claim. It is not clear whether Moore: a) is an employee on leave, b) abandoned his job in February 2005, or c) was discharged. The Court found genuine issues of fact with respect to Moore's status and, if he was discharged, whether the discharge was motivated by his intention to file a workers' compensation claim. Finally, the Court affirmed the district court's sanctions ruling and declined to impose its own.

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MENDEZ v. PERLA DENTAL (May 24, 2011)

Nereida Mendez was a Perla Dental employee. She alleges that she was subjected to severe verbal and physical sexual harassment and even physical abuse. She complained at several levels -- but it only made it worse. She eventually filed a police report concerning the physical abuse. Perla terminated her employment. Mendez brought suit, alleging Title VII claims for gender discrimination, hostile work environment, and retaliation. She also brought state law claims for assault and battery, intentional infliction of emotional distress, and retaliatory discharge. A jury found for Mendez and awarded compensatory and punitive damages. Perla appeals.

In their opinion, Judges Manion, Rovner, and Sykes affirmed. The only issue on appeal is whether the district court had subject matter jurisdiction. Perla argues that the Illinois Human Rights Commission had exclusive jurisdiction of the claim. The Court agreed that the Commission has exclusive jurisdiction of retaliation claims that are based on complaints of sexual harassment. The question is whether Mendez' retaliatory discharge claim was intertwined with her sexual harassment complaints. The answer to that question is found by examining whether the legal duty Perla allegedly violated arises from the Illinois Human Rights Act. Here, Mendez' claim is that she was fired for filing a police report. Defendants agree that such a claim is recognized by Illinois common law, without reference to the Act, but claim that Mendez abandoned that claim during the litigation. The Court rejected Perla’s argument. First of all, there is no factual basis for it. The evidence at trial included reference to the police report. The fact that a jury instruction might not have been complete does not support abandonment. Second, even if Mendez did abandon the claim, subject matter jurisdiction exists because it is decided at the time of the filing of the complaint.

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HUGHES v. UNITED AIR LINES (February 8, 2011)

United Airlines and its flight attendant union agreed that flight attendants retain seniority for only three years while on medical leave. When Constance Hughes' three-year deadline was near, United asked her to return to work. She received medical clearance and completed her requalification training. Unfortunately, a few days before her first assigned flight, she fell and injured herself so severely that she could not perform her duties. United terminated her employment. Hughes brought suit in Illinois state court, alleging that her discharge was in retaliation for filing a workers' compensation claim. Notwithstanding the complaint’s state law basis, United removed to federal court on federal question grounds. It contended that the Railway Labor Act completely preempts the field. Judge Bucklo (N.D. Ill.) agreed, based on the Seventh Circuit’s Graf decision, denied the motion to remand, and dismissed the complaint. Hughes appeals.

In their opinion, Chief Judge Easterbrook and Judges Cudahy and Posner vacated and remanded with instructions to remand to Illinois state court. The Court first distinguished between the "misleadingly named" doctrine of complete preemption and ordinary preemption. Ordinary preemption is an affirmative defense that must be raised in the court where the litigation was filed. Complete preemption, on the other hand, is not a defense. It is a theory under which federal law so controls a field that a state law claim is not possible. The Court turned to its own and the Supreme Court's jurisprudence on the issue. In Graf, the Court held that a retaliatory discharge case like Hughes' against an employer covered by the Railway Labor Act was completely preempted. It extended that principle to other employers the following year in Lingle. The Supreme Court reversed the Lingle decision, however, holding that a retaliatory discharge claim is preempted only if it requires construction of a collective bargaining agreement. The Supreme Court then extended that principle to a Railway Labor Act employer in Hawaiian Airlines. The Court concluded that Lingle and Hawaiian Airlines controlled and that Graf had to be overruled. Without diversity of citizenship, the case must be remanded to the state court. That is the appropriate forum for United to raise its claim of ordinary preemption on the ground that Hughes' claim requires interpretation and construction of the collective bargaining agreement.

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GACEK v. AMERICAN AIRLINES (July 15, 2010)

John Gacek was a baggage handler for American Airlines. In December of 2005, he suffered a severe sprain to a finger on his left hand. The doctor advised him to wear a splint and to avoid lifting anything with that hand. Gacek called in sick on December 29, 30, and 31. He failed to answer or return a phone call from American on the 29th. Its suspicions aroused because of the inability to reach Gacek and the holiday timing, American hired a detective to conduct surveillance. Gacek was videotaped running errands and generally using his hands to lift and carry objects. Gacek first told American that he had the flu -- he later changed his story and asserted that he called in sick because his finger was bothering him. American fired him. He brought an action under the Illinois Workers' Compensation Act for retaliatory discharge. Judge Conlon (N.D. Ill.) granted summary judgment to American. Gacek appeals.

In their opinion, Judges Posner, Wood, and Hamilton affirmed. Although the Court quickly concluded that no reasonable jury could decide that the reason for American's action was the opening of the claim file as opposed to lying about having the flu and disobeying doctor's orders, it decided to address a recurring issue that it had previously ducked. That issue is whether the summary judgment framework in this case is provided by Illinois law or by federal law (that is, McDonnell Douglas). In the 1998 Clemons case, the Illinois Supreme Court specifically rejected McDonnell Douglas in the context of a state workers' compensation retaliatory discharge claim. It's stated rationale was that it did not want to reduce the plaintiff’s burden of proving its case. The Court noted that the application of the Illinois test could result in a different outcome. Illinois requires proof of causation, whereas a McDonnell Douglas plaintiff could potentially prevail without such proof. The Court then addressed whether, under Erie, the Illinois test is a substantive or procedural rule in order to determine whether it should be applied in a diversity case. Although recognizing that the rule was ostensibly procedural, the Court concluded that it was nevertheless substantive under Erie and should be applied in the case. It based its conclusion on the fact that the test applies to a discrete area of substantive law and was motivated by substantive concerns. Illinois simply chose not to provide the McDonnell Douglas advantage to state retaliatory discharge plaintiffs -- the federal courts must honor that policy choice and apply it in diversity cases. Here, Gacek is unable to establish causation since he presented no credible evidence that American's stated reasons for firing him were not credible.

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DARCHAK v. CITY OF CHICAGO BOARD OF EDUCATION (September 3, 2009)

Anna Darchak, a native of Poland, worked for several years in the Chicago public school system as a teacher of English as a Second Language. In 2005, she was hired as a full-time teacher at the Princeton Alternative Center on a one-year contract. It was not a good year. Almost immediately, Darchak complained that Hispanic students were being treated more favorably than Polish students. Darchak alleges that Princeton's principal made several disparaging remarks in reference to Darchak's heritage. Later in the year, the principal assigned Darchak to a classroom with a large number of Spanish speaking students. Darchak complained – and she received a negative evaluation. The principal chose not to renew Darchak's contract at the end of the year. Darchak filed suit, alleging retaliatory discharge, First Amendment retaliation under § 1983, and national origin discrimination under Title VII. The district court granted summary judgment to the defendants. Darchak appeals.

In their opinion, Judges Cudahy, Ripple and Wood affirmed in part and reversed in part. The Court addressed each claim in turn. First, with respect to the state law claim of retaliatory discharge, the Court stated that Darchak had to demonstrate that she was discharged, that the discharge was retaliatory, and that the discharge violated a clear mandate of public policy. The Court concluded that the claim failed on both the first and third elements. First, Darchak was not discharged -- her one-year contract was not renewed. Second, the public policy relied on by Darchak -- equal education -- has never been recognized by Illinois courts as support for a retaliatory discharge claim. With respect to her First Amendment retaliation claim, the Court concluded that the Board of Education was not liable under Monell. Although Darchak alleged that the principal was a final policymaker, the Court stated that Illinois law makes the Board the final policymaker. The Court agreed that the Board's adoption of the principal's recommendation could be a basis for liability but only if they adopted the retaliatory basis as well. The Court found no evidence of that. Finally, with respect to the Title VII national origin discrimination claim, the Court noted that she put forth both a direct and an indirect case. The Court rejected her indirect method approach because she could not demonstrate pretext with respect to the Board's reasons for nonrenewal. On her direct method, however, the court found that Darchak presented sufficient circumstantial evidence to reach a jury. The evidence of derogatory remarks followed shortly by a disciplinary notice from the principal follow later by the nonrenewal establish a prima facie case. The fact that Darchak's testimony is uncorroborated and self-serving does not change that result, as the district court believed. The testimony is based on her first-hand experience and deserves to be considered. The Court concluded that the evidence raised a question of intent that had to go to the jury.

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