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

COLEMAN v. DONAHOE (January 6, 2012)

The United States Postal Service employed Denise Coleman, without incident, for over 20 years until 2005. That was the year her longtime supervisor retired and she was assigned to a new supervisor, William Berry. Coleman and Berry are African-American, the manager who appointed Berry is white. Coleman thought she was passed over because of her gender and she also believe that Berry was treating her poorly. She started making complaints. Over the next few months, she claims that Berry assigned her to disgusting tasks that were not part of her regular work, disciplined her unfairly, and ignored her medical restrictions after a surgery. Coleman entered a psychiatric unit. She complained of depression, anxiety, and insomnia. Her treating psychiatrist wrote that she had "homicidal ideations" when talking about Berry. Coleman was discharged after a few weeks much improved and in stable condition. On the same day she was discharged, however, her treating psychiatrist told Berry that Coleman had made threats on his life. The Postal Service immediately put Coleman on off duty status and, a few weeks later, notified the police. Coleman was fired in January of 2006 for violating the Postal Service's ban on "Violent and/or Threatening Behavior." An arbitrator ordered her reinstatement in late 2007. Coleman filed suit, alleging race and gender discrimination as well as retaliation. Judge Coar (N.D. Ill.) granted summary judgment to the defendant, concluding that Coleman: a) failed to identify similarly situated employees, b) offered no pretext evidence, and c) failed to carry her burden under the direct method. Coleman appeals.

In their opinion, Seventh Circuit Judges Wood, Tinder, and Hamilton reversed and remanded. The Court first addressed the discrimination claims. It did so only under the indirect method. Under the McDonnell Douglas framework, a plaintiff must show that she is a member of a protected class, that she met her employer's expectations, that she suffered an adverse job action, and that a similarly situated individual not in the class was more favorably treated. If she meets that test, the employer then has the burden to establish a nondiscriminatory reason for its conduct. If it can do so, the burden then shifts back for the plaintiff to establish that the stated nondiscriminatory reason is a pretext. The defendants conceded that Coleman met three of the four prima facie prongs -- challenging only the similarly situated prong. The Court noted that the similarly situated analysis is a flexible one and should take into account all factors -- but that a similarly situated employee must be comparable to the plaintiff in all material respects. That usually requires the same supervisor, the same conduct, and the same standards. Here, Coleman's comparators were two white male employees who held a knife to a black colleague’s throat. The two were suspended for seven days. The district court rejected them as comparators because they had different supervisors and different jobs. The Court disagreed with the district court's conclusion. Although the white males had different supervisors, the facility's maintenance operations manager was the decisionmaker in each case. Similarly, although the white males had different job duties, the decisions in this case had nothing to do with their duties. All three were subject to the same Postal Service policy with respect to violence in the workplace. Finally, they were each disciplined for violating the same rule. The Court concluded that the employees were similar enough to survive summary judgment. With respect to pretext, the Court rejected Coleman's request to give the arbitrator’s decision preclusive effect. Not only did the arbitrator not address the same question that the Court addresses, but arbitration decisions in general are not given preclusive effect. Nevertheless, the Court concluded that Coleman satisfied her burden on pretext. Given the arbitrator's conclusion, the context of Coleman's "threats," the decision to terminate her instead of have her undergo a fitness evaluation, and the very selective enforcement evidenced by the comparator analysis is sufficient to defeat summary judgment. The Court turned to the retaliation claims. In order to prevail, Coleman has to show that she engaged in protected activity, suffered an adverse employment action, and that there was a causal connection. Here, the only disputed element is the causal connection. The Court concluded that the combination of the suspicious timing of the Postal Service's conduct and the evidence of pretext were enough to survive summary judgment

Judge Wood wrote separately, concurring in the judgment. Interestingly, Judges Tinder and Hamilton joined in Judge Wood's concurrence. The opinion suggested that, now almost 40 years after McDonnell Douglas, the Supreme Court should simplify the approach that district courts take in addressing employment litigation at the summary judgment stage.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

EATON v. INDIANA DEPARTMENT OF CORRECTIONS (September 9, 2011)

The Indiana Department of Corrections employed Autumn Eaton as a correctional officer from early 2006 until early 2008.. For her first year, she had watch tour duty, which required her to walk her assigned unit and monitor the inmates. She was reassigned to control room duty in early 2007, a more attractive assignment that did not involve physical contact with inmates. She also had an attractive work schedule. In late 2007, the Department reprimanded her for excessive absenteeism and warned that she could be given a less attractive work schedule. In fact, shortly after the reprimand, she was assigned to a less attractive work schedule. Before the change took place, she took several weeks of FMLA leave. When she returned, she resumed her duties under the attractive schedule. She was later in a car accident and given certain work restrictions by her physician. Although she did not originally disclosed the restrictions to the Department for fear of a schedule reassignment, she eventually did. The Department told her that her schedule would not be changed. In March of 2008, Eaton returned from a vacation to learn that she had been reassigned from the control room back to watch tour duty. In fact, she was assigned to duty in the "worst unit" in the facility. She refused the assignment, insisting that it was inconsistent with her medical restrictions and that she was not capable of doing it. Her supervisor demanded her badge, which she begrudgingly turned over, insisting that she did not want to quit her job. Her mother, also a Department correctional officer, met with Eaton's supervisor. Although the supervisor originally advised Eaton's mother that Eaton could return for her next shift, he later retracted the statement and barred Eaton from the facility. Eaton brought suit under Title VII for gender discrimination. Judge Magnus-Stinson (S.D. Ind.) granted summary judgment to the Department, concluding that she failed to make out a prima facie case under the indirect method because the male comparators she identified were not similarly situated. Eaton appeals.

In their opinion, Seventh Circuit Judges Rovner and Wood and District Judge Gottschall reversed and remanded. The only issue for the Court on appeal is whether a jury could conclude that a similarly situated male employee received more favorable treatment. A similarly situated analysis requires a factual inquiry into whether the employees are similar enough that any differences in the way their employer treated them cannot be attributed to factors other than, in this case, gender. The district court found that the two employees differed in the way they rejected a job assignment and in their disciplinary histories. Although the Court agreed that there were some minor differences in the way the two employees rejected a new job assignment, it concluded that a reasonable fact finder could overlook those differences and find the employees similarly situated. With respect to the employees' disciplinary histories, the Court noted that the record was clear that the Department did not consider Eaton's disciplinary history in terminating her employment. A factor that an employer does not consider in a termination decision cannot be used as a factor to distinguish the employee from a similarly situated employee, regardless of its significance. Therefore, the district court erred in granting summary judgment to the Department.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

RODGERS v. WHITE (September 2, 2011)

The Illinois Secretary of State employed Mark Rodgers as a lawn maintenance worker for over 20 years. He was the only black employee on a 27-person crew. He was fired in 2006 by Donna Fitts, the Department director and a white woman, and Stephen Roth, the personnel director and a white man. The termination arose from two or three incidents. First, a late 2005 Inspector General report concluded that Rodgers and his supervisor, Dave Rusciolelli, who is white, allowed their crewmembers to use state-owned equipment on personal time. The department recommended a 3-day suspension for Rusciolelli and an 18-day suspension for Rodgers, although neither suspension was ever implemented. Second, in early 2006, Fitts discovered that Rogers, Rusciolelli, and a third man, a white crew supervisor, were recording overtime off the books. The Department had imposed a moratorium on overtime. This off-the-books system allowed crewmembers to work overtime in return for later, equivalent personal time off. Third, Rodgers skipped a meeting that Fitts called because he was not told it was mandatory and because Fitts had not approved overtime for the meeting. In mid-2006, Fitts recommended Rodgers' termination. Her termination memorandum cited as grounds only the abuse of state equipment and the improper overtime but her letter to Rodgers also included his failure to attend the meeting. Following arbitration, Rodgers was reinstated with back pay. Nevertheless, he brought suit against the Secretary of State under Title VII and against Fitts and Roth under §§ 1981 and 1983. Chief Judge McCuskey (C.D. Ill.) granted summary judgment to the defendants. He concluded that Rodgers had no direct evidence of discrimination and that, under the indirect method, Rodgers failed to identify a similarly situated coworker. Rodgers appeals.

In their opinion, Seventh Circuit Judges Bauer, Cudahy, and Tinder vacated and remanded. The Court agreed with the district court with respect to the direct method. It disagreed, however, with respect to the indirect method. The Court conceded that supervisors generally are not good comparators under the similarly situated analysis. But here, it found Rusciolelli a good comparator. Rodgers and Rusciolelli were accused of the same things, were equally responsible, and were disciplined by the same supervisor. The only substantial difference is the accusation that Rogers failed to attend a meeting but there are at least material fact questions regarding that meeting. Rodgers has therefore identified a similarly situated white individual who was treated more favorably -- summary judgment should not have been granted.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

DIAZ v. KRAFT FOODS GLOBAL (August 8, 2011)

Jose Diaz, Ramon Peña, and Alberto Robles were all Kraft Foods employees in 2008. Diaz and Peña were hourly employees in the shipping department. Robles was a salaried senior technician in the support services department. They all reported to the same supervisor -- Peter Michalec. Diaz and Peña complained that Michalec discriminated against Hispanics. He assigned them the hardest tasks under the most difficult conditions and scrutinized their work much more closely than non-Hispanics. They also identified a number of discriminatory remarks he allegedly made. In late 2008, Kraft announced plans to outsource its shipping department. Diaz and Peña would lose their jobs. At about the same time, Kraft posted openings for two technician and five sanitation positions. Plaintiffs never made it on the list of interested candidates for the technician position. They claim they were not allowed to apply -- Michalec asserts they the simply failed to apply. Kraft hired two non-Hispanics for those positions. Diaz and Peña were on the list for the sanitation positions. Kraft decided to fill those positions based on seniority and neither Diaz nor Peña were selected. Robles has a different complaint. He received the salary of grade 2 employee but asserts that his position is a grade 3 position. Kraft responds that his position is a grade 2 position. Kraft concedes that two other employees in the same position are paid at a higher rate but only because they were transferred from a higher paying position and the company's policy is to allow them to retain their salaries for two years. Plaintiffs brought suit against Kraft under Title VII of the Civil Rights Act of 1964. Judge Guzman (N.D. Ill.) granted summary judgment to the defendants. Plaintiffs appeal.

In their opinion, Seventh Circuit Judges Kanne, Wood, and Sykes affirmed with respect to Robles but reversed and remanded with respect to Diaz and Peña. The Court first addressed the Diaz and Peña claims. Those plaintiffs presented their case under the direct method of proof. The Court disagreed with the district court's application of an inverted “similarly situated employee" approach. The district court had allowed the employer to satisfy its burden by identifying a person within the protected class who was not discriminated against. The fact that Michalec treated another Hispanic well might tend to negate discrimination, but is not enough to meet the employer's burden. The Court noted Michalec's treatment of Diaz and Peña by assigning disfavored tasks, Michalec's role in the hiring processes, and evidence that Michalec told another employee that he chose one candidate because he was white. The Court concluded that there was enough evidence to submit the question of ethnic bias to a jury. The Court turned to the Robles claim. It first noted that the evidence relied on by Diaz and Peña had no bearing on the claim since Robles’ claim arose months earlier. Although the record contained evidence of some insensitive remarks made by Michalec, the Court concluded that there was insufficient evidence to create a triable issue of ethnic bias under the direct method. Under the indirect method, the Court concluded that the higher paid colleagues were not similarly situated because of the company's policy to allow employees to retain a higher salary after a transfer to a lower-paying job.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

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

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

HARVEY v. TOWN OF MERRILLVILLE (July 11, 2011)

The mostly African-American residents of a Merrillville, Indiana subdivision were unhappy with their retention pond. It frequently flooded and they thought it attracted mosquitoes. When town officials considered a subdivision expansion, the residents became even more concerned. They attempted to express those concerns to town officials. They claim that the officials ignored them, subjected them to racial slurs, and were generally less responsive than they were to the white residents of a different subdivision. Several of the residents filed suit pursuant to § 1983 alleging a violation of the Fourteenth Amendment’s equal protection clause. They also brought many state law claims. They named as defendants the Town, the town engineer, and a large number of other town employees. In a December 2, 2010 order, Judge Van Bokkelen (N.D. Ind.) granted summary judgment to the defendants (but failed to mention the engineer) on the ground that plaintiffs failed to identify a similarly situated class. He also declined to exercise supplemental jurisdiction over the state law claims and "remanded" the case to state court. After the engineer sought clarification, the court issued an order the following day pursuant to Rule 60(a) granting summary judgment to the engineer. A few months later, the district court entered Rule 58 judgment as to all defendants. Plaintiffs appealed the December 2 order, but mentioned all defendants. The plaintiffs did not file a notice of appeal with respect to the December 3 order or the later judgment.

In their opinion, Judges Cudahy, Kanne, and Tinder affirmed as modified. The Court first rejected the engineer's arguments that: a) plaintiffs failed to effectively appeal summary judgment in his favor because they did not appeal from the December 3 order or the later judgment, and b) plaintiffs waived their argument as to him by not developing it adequately. With respect to the former, the Court noted that failed attempts to comply with Federal Rule of Appellate Procedure 3  are generally not fatal if the appellee is not harmed. Here, the appellant's identified the engineer by name and even included a copy of the judgment in their brief, which also named him. Their technical noncompliance does not prevent the Court from having jurisdiction. With respect to the latter, the Court acknowledged many deficiencies in the briefing but concluded that plaintiffs addressed the engineer enough to avoid waiver. On the merits, the Court agreed that plaintiffs failed to make out an equal protection claim sufficient to get past summary judgment. To do that, the plaintiffs had to present evidence that they were in a protected class, that they were similarly situated to others in an unprotected class, and that they were treated differently. They did present some evidence of similarities with the residents of another subdivision but they failed to carry the day. There was more evidence of substantial differences between the groups, including subdivision zoning differences and the fact that the other subdivision did not even have a retention pond. In addition, plaintiffs failed to present evidence, other than their pleadings, that the other residents even belonged to an unprotected class. And finally, the record seems to show that the other residents group was actually treated less favorably than the plaintiffs. The district court did err, however, in remanding the case to state court. The case did not originate in state court and cannot be remanded there. The district court should have dismissed without prejudice.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

STINNETT v. CITY OF CHICAGO (JANUARY 4, 2011)

Gregory Stinnett was a black male Ambulance Commander in Chicago's Fire Department. He took the promotional exam for Field Officer in 2000. Based on his score and seniority, he ranked 32nd. Over the next several years, the Department promoted from the list on eight different occasions. By February of 2007, after the Department promoted two white officers, Stinnett's name was next in line and there were vacancies. Unfortunately, promotions for the additional vacancies were not budgeted. By the time of the next promotions in March 2008, the Department had retired the 2000 list and had administered a new exam -- and Stinnett went from 1st to 48th. He brought suit against the City, alleging that its failure to promote him violated Title VII. Judge St. Eve (N.D. Ill.) granted summary judgment to the City. Stinnett appeals.

In their opinion, Seventh Circuit Judges Posner, Tinder, and Hamilton affirmed. Under McDonnell Douglas, the Court noted that Stinnett can survive summary judgment if he shows that he was qualified for a promotion, was denied the promotion, a similarly situated member of another race got the promotion, and the City was unable to articulate a nondiscriminatory reason for its conduct. The district court concluded that Stinnett was not similarly situated to either a) the two white officers who were just ahead of Stinnett on the 2000 list and promoted in February 2007 or b) to all of the officers (some of whom were white) who had been promoted ahead of Stinnett from the 2007 list. The Court disagreed with the former. Stinnett was not claiming that he should have been promoted ahead of the two officers who ranked higher in 2007 -- he was claiming that the City should not have stopped filling vacancies when it got to him on the list. Thus, the Court concluded he was similarly situated to the last two promotions from the 2000 list because they were all eligible for the 2007 promotions. Getting past the similarly situated hurdle was not enough for Stinnett, however. The City's reasons for its behavior -- that it filled the only two budgeted promotions in 2007 and that it needed to update its promotion list from time to time to allow newer employees a chance for a promotion -- was reasonable. The fact that the last two promotions were white males and the next name on the list was that of a black male does not make its behavior suspicious. Also, the record clearly establishes that the Department official who closed down the 2000 list did not know whose name was next.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

LABELLA WINNETKA, INC. v. THE VILLAGE OF WINNETKA (December 29, 2010)

LaBella Winnetka operated as a restaurant in Winnetka, Illinois since 1993. It occupies a leased space and renews the lease from time to time. It also has a liquor license. Each year, Winnetka sends it a renewal form. Each year LaBella completes the form and Winnetka renews the license. A fire at the building in early 2007 damaged the roof over the LaBella dining room and forced its closure. The Village refused to allow repairs to the restaurant’s interior until the roof was fixed. It also refused to allow LaBella to reopen the undamaged portion of its leased premises. At the same time, other restaurants, even one operating out of the same building, were allowed to reopen in allegedly similar circumstances. LaBella's most recent liquor license was due to expire in March of 2008. Winnetka never sent a renewal form and terminated the license went LaBella did not file for renewal. LaBella brought suit against the Village and the Village Manager, alleging a violation of its equal protection, substantive due process, and procedural due process rights. The complaint alleged that the benefits bestowed on the other restaurants came about because of their friendships with the Village Manager. Judge Kendall (N.D. Ill.) granted defendants' motion to dismiss. LaBella appeals.

In their opinion, Seventh Circuit Judges Posner, Flaum, and Sykes affirmed. The Court first considered the "class of one" equal protection claim. In order to state such a claim, one must allege treatment different from others "similarly situated." LaBella concedes that the restaurants that were allowed to reopen did not incur the same major fire damage as the LaBella roof. They are therefore not "similarly situated" and the equal protection claim fails. The Court next considered and rejected LaBella's substantive due process claim relating to its property interest in its lease and business. In order to prevail on that claim, LaBella had to show an independent constitutional violation or the inadequacy of state law remedies. It did neither. Finally, the Court rejected LaBella's procedural due process claims related to the liquor license non-renewal. First, to the extent the claim is based on the Village's simple failure to send a renewal form, there was no constitutional deprivation. Second, to the extent the claim is that the Village revoked the license without notice or hearing, the allegations of the complaint fall far short of even the notice pleading requirements of the federal rules. Finally, the claim fails because LaBella does not even allege that it took advantage of post-deprivation remedies or that they were inadequate.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

NAIK v. BOEHRINGER INGELHEIM PHARMACEUTICALS (November 22, 2010)

In early 2004, Boehringer Ingelheim Pharmaceuticals hired Prakash Naik, a 53-year-old India native, as a sales representative in its Schaumburg territory outside of Chicago. Naik’s job was to make sales calls on doctors and other medical professionals and promote BIP's products. Naik complained to the company that his manager, Brett Lundsten, made inappropriate comments regarding both his age and his national origin. In early 2005, a regional performance review disclosed that the Schaumburg territory was underperforming. Lundsten began investigating his employees’ sales call activities. He found several irregularities with respect to Naik's call activity, including recorded sales calls at times when the identified medical professional was apparently not available. He investigated further, directly contacting the professionals’ offices. His investigation resulted in a list of at least six occasions on which Naik recorded a sales call with a person who was not present. Lundsten, along with the regional manager and a regional human resources representative, confronted Naik. Naik claimed that he had no recollection of the calls. The company representatives provided him with the details of their investigation and gave him until the following day to provide additional information. When Naik was unable to provide any information to explain the apparent irregularities, BIP terminated his employment. The company replaced him with a 36-year-old non-Indian male. Company records also show that two other employees were fired for falsifying sales calls, two other employees voluntarily resigned after being accused of falsifying sales calls, and that no employee accused of falsifying sales calls was retained. Naik brought suit against the BIP, alleging age discrimination under the Age Discrimination in Employment Act and national origin discrimination under Title VII. Judge Andersen (N.D. Ill.) granted summary judgment to BIP. Naik appeals.

In their opinion, Seventh Circuit Judges Cudahy, Rovner, and Evans affirmed. Naik relies on the indirect, McDonnell Douglas formula for proving discriminatory intent. Two of the four elements of the tests are at issue here -- whether Naik was meeting his employer’s legitimate expectations and whether BIP treated similarly situated employees more favorably. The Court quickly disposed of the legitimate expectations element, concluding that the call record falsification without explanation was adequate evidence of a failure to meet legitimate expectations. The Court also agreed with the district court that Naik failed to establish that any similarly situated employee was treated differently. In fact, the record shows no disparity in the company’s treatment of employees who falsify sales call records. Although Naik fell far short of meeting his burden, the Court added that he also could not have established that BIP's nondiscriminatory reason was pretextual. The company's belief that he falsified his call reports was a legitimate, nondiscriminatory reason for terminating his employment.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

MONTGOMERY v. AMERICAN AIRLINES (November 19, 2010)

Anthony Montgomery has been an American Airlines employee for over 20 years, all but five months of it as a Fleet Service Clerk. It is the events of those five months, however, that matter in this case. Late in 2006, Montgomery asked for and was granted a transfer to a mechanic's position. The collective bargaining agreement required and defined a six-month probationary period, toward the end of which Montgomery would have to pass a tool inspection and qualification test. Montgomery took his test in April of 2007. Two company supervisors and a union representative were present. Montgomery failed the test and was returned to his prior position. Nearly 3 months later, Montgomery complained to American that he was subjected to racial harassment and discrimination during his probationary period. In the initial meeting with a company representative, he never stated that he had complained to his supervisors at the time. The company conducted an investigation and concluded that it could not substantiate the allegations. The results of the investigation were that the test was administered fairly, that the few employees who became mechanics without passing the test fell into different categories, and that any tension in the workplace was not based on race. Montgomery filed suit. He alleged a hostile work environment in violation of § 1981 and Title VII and racial discrimination, also in violation of § 1981 and Title VII, for his return to the clerk position. Judge Der-Yeghiayan (N.D. Ill.) granted summary judgment to American. Montgomery appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Bauer and Kanne affirmed. The Court first addressed the hostile work environment claim, noting that the analysis under the two statutes is the same. The Court found triable issues of fact with respect to three of the four elements of the claim. In order to recover against an employer, however, Montgomery had to establish that American either participated in the harassment or was negligent in finding and correcting it. His only allegation of participation referred to a coworker and thus does not satisfy the participation prong. In order to satisfy the second prong, Montgomery had to establish either that he informed his supervisors of the harassment or that it was so obvious that it amounted to constructive notice. The record does not support either conclusion. The only person he reported his concerns to was his crew chief, a non-management coworker. America cannot be liable for the harassment without clear and direct reporting from the employee. Even if the harassment had been reported, the Court stated that American would have avoided liability because of its prompt and appropriate investigation. The Court turned to the discrimination claim, which Montgomery pursued under both the direct and indirect method of proof. Again, the analysis is the same under both statutes. Under the direct method, Montgomery asserted that non-African-Americans were not required to take the test. The Court rejected this as proof. Even if true, it did not allow the inference of discriminatory motive. Under the indirect method, Montgomery had to establish that similarly situated employees were treated more favorably. He alleged that three individuals became mechanics without passing the test. But the Court concluded that none of the three was similarly situated to Montgomery -- one became a mechanic before the test rule was enforced, one became a mechanic when a recalculation of his probationary time put him past the time limit for taking the test, and Montgomery presented no admissible evidence with respect to the third individual. The Court concluded that Montgomery cannot prevail on his claim that the test requirement was discriminatory. Montgomery also claimed that the test itself was discriminatory. On that claim, the Court concluded that Montgomery simply presented no evidence. Finally, although Montgomery failed to make out a prima facie case, the Court also addressed pretext. It found that American had a legitimate reason for its actions and that Montgomery provided no evidence otherwise.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

EGONMWAN v. COOK COUNTY SHERIFF'S DEPARTMENT (April 22, 2010)

Iyare Egonmwan was a black male jail guard at the Cook County Jail. In 2001, he was transferred into the women's division. The following year, the female superintendent of the division disciplined him for conduct that had occurred prior to his transfer. Several days later, Egonmwan accused the superintendent of sexual harassment. The claim was investigated and determined to be unfounded. In 2003, during a general investigation into allegations of sexual misconduct between guards and prisoners, a female detainee informed the investigators that she and at least one other prisoner had had a sexual encounter with Egonmwan. Although Egonmwan was acquitted of criminal charges in 2004, an administrative hearing board terminated his employment in January of 2005 for violation of institutional rules. Egonmwan brought suit against, among others, Cook County and the Sheriff's Department. He alleged § 1981 race discrimination and § 1983 gender and race discrimination. The district court granted summary judgment to the defendants. Egonmwan appeals.

In their opinion, Judges Cudahy, Evans, and Sykes affirmed. The Court first affirmed the summary judgment on the gender discrimination claim. Egonmwan proceeded under the direct method but presented only a few isolated remarks by the women's division superintendent. The Court noted that isolated remarks may be sufficient to establish a discriminatory motive, but they must be made by the decision-maker, at the time of the decision, and regarding the decision. Here, the Court doubted (but did not decide) that the superintendent could be considered the decision-maker. It upheld the summary judgment because of the seven to ten month lag between the remarks and the action and the fact that the remarks did not refer to Egonmwan's termination. With respect to the race discrimination claim, the Court concluded that Egonmwan was unable to show that similarly situated non-blacks were treated more favorably or that the defendants' reasons for his termination were not legitimate.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

REGET v. LA CROSSE (February 8, 2010)

John Reget has operated an auto restoration and body shop business in La Crosse, Wisconsin for several decades. For almost as long, he and the City have been at odds. In 1980, the City condemned his building and gave him the funds to relocate and remodel his current building. In the early 1990s, the City cited Reget a number of times for ordinance violations pertaining to junk dealers. All the citations were ultimately dismissed. In the mid-1990s, the City threatened to rezone the area of Reget's current building. The move would have forced Reget to relocate yet again. The City backed down -- but only after Reget promised to comply with the ordinances, build a fence, and limit his nighttime operations. Both sides claim the other failed to live up to its bargain. Reget filed a lawsuit alleging a violation of his Equal Protection rights as a result of the City's selective enforcement of its ordinances. The district court granted summary judgment to the City. Reget appeals.

In their opinion, Chief Judge Easterbrook and Judges Williams and Sykes affirmed. The Court noted that Reget's Equal Protection claim was of the class-of-one variety. For such a claim to prevail, a plaintiff must prove that he or she has been treated differently than others similarly situated and that no rational basis exists for such differentiation. The Court concluded that he failed to identify a similarly situated business with respect to any of his claims of discriminatory treatment.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

SRAIL v. VILLAGE OF LISLE (December 7, 2009)

The Oak View subdivision was built in the 1950s. Since its earliest days, a private utility company has provided its residents with water. The Village of Lisle developed its municipal water system in 1967. The municipal system has grown as developers have donated water mains serving new projects. Lisle also purchased a private water utility in 1980. Although both the municipal system and the Oak View system receive their water from the DuPage Water Commission, the Oak View system has insufficient pressure for firefighting. Residents of Oak View sued the Village, alleging that the Village violated the Equal Protection Clause by providing municipal water to some residents and not others. The court granted summary judgment to the Village. The residents appeal.

In their opinion, Judges Ripple, Kanne and Sykes affirmed. The Court first noted that the residents are not members of a suspect class and they do not allege an infringement of a fundamental right. Therefore, the Court's review is on the rational basis test. Although the Court identified issues with the plaintiffs' status as a "class of one" and with an illegitimate animus requirement, it found it unnecessary to reach either issue. Citing the Supreme Court's decision in Engquist, the Court stated that government activity which involves discretionary decision-making based on a number of objective criteria need not treat all persons equally. The Village's decisions over the years to build and extend its system were based on individual assessments made at those times. There is no clear standard that the Village used and that the Court could use to judge any departures therefrom. The Court concluded that it was doubtful that the residents' claim would survive the Engquist test. The Court went on, however, and concluded that the residents failed to establish an equal protection violation. First, they were unable to establish the existence of an appropriate comparator. Second, the cost of extending the system, the apparent lack of interest on the part of most residents, and the Village's desire to avoid competition with the private utility amounted to a rational basis for its conduct.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

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

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link