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Seventh Circuit


Goodman v. National Security Agency, Inc., No. 09-2043 (7th Cir. Sept. 3, 2010). Panel:  TINDER, Rovner, Sykes. Claims on Appeal:  1. Title VII and EPA compensation (sex). 2. Title VII and EPA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Payroll evidence establishes that one comparable male who replaced employee in the job was actually paid less initially than plaintiff; two other putative comparators were insufficiently developed in the record to establish their duties, tenure and other relevant factors. 2. Shift-change and reclassification from site supervisor to shift supervisor not shown to be adverse employment action; plaintiff did not lay foundation that it would cause her inconvenience with respect to child care. Record failed to establish that she was reassigned at all. Her deposition fails to establish that there was ever a change in her employment (and in fact, her direct testimony is that no change occurred).

Chapin v. Fort-Rohr Motors, Inc., No. 09-1347 (7th Cir. Sept. 3, 2010). Panel:  WILLIAMS, Flaum, Sykes. Claims on Appeal:  Title VII retaliation. Disposition Below: Judgment after a jury trial ($100,000 compensatory damages, $1,000,000 punitive damages) [plaintiff]. Outcome on Appeal:  Reversed [defendant]. Grounds: Plaintiff as a matter of law failed to establish that he was subjected to actual or constructive discharge. After an altercation at work about his having filed an EEOC charge - during which he was told that if he wanted to work on the floor, he would need to withdraw the charge - he was thereafter repeatedly asked to return to work. Moreover, one "Thereat and raised voices would not rise to the level of a hostile work environment, and so it also cannot be the basis for [plaintiff]'s constructive discharge claim"; moreover, there was nothing to indicate that a firing here was an imminent and inevitable event. Leaving open for possible future case a claim that "we do not foreclose the possibility that a plaintiff could argue that a singular Thereat of termination had the impact of dissuading a reasonable worker from supporting a discrimination complaint, which might act as the necessary adverse action underlying his retaliation claim."

Weber v. Universities Research Association, Inc., No. 08-1957 (7th Cir. Sept. 2, 2010). Panel:  KANNE, Bauer, Tinder. Claims on Appeal:  Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Employee waived "direct method" of proof. Under "indirect" burden-shifting method, employee - fired for violating company computer-use policies (spending up to 16 hours a week on personal business) and running an outside business without approval - did not establish that she was meeting the employer's reasonable expectations or (alternatively) that similarly situated men (who made personal use of computers and/or ran outside businesses) were treated better. Men in violation of company rules did not reach the scale of abuse that the plaintiff did in time and loss of productivity.

Runyon v. Applied Extrusion Technologies, Inc., No. 09-3015 (7th Cir. Aug. 30, 2010). Panel:  WOOD, Posner, Flaum. Claims on Appeal:  ADEA termination. Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Between two employees who fought and offered apology letters as ordered by management, older employee did not -as a matter of law - establish that he was terminated (and the younger employee saved) because of age. Tenor of younger employees letter was sincere, while the plaintiff's letter was defensive and conditional. Plaintiff also had a longer history of serious conflicts; evidence of post-termination fight by younger employee was irrelevant (FRE401) to employer's motive. No error in analyzing case differently on summary judgment papers and on JMOL (law-of-the-case does not apply to interlocutory decisions while case is pending, and the Gross decision intervened); nor was it proper to analyze the case at this stage under the burden-shifting method, as the case had been tried and the McDonnell Douglas sequence of steps falls away.

Hatmaker v. Memorial Medical Center, No. 09-3002 (7th Cir. Aug. 30, 2010). Panel:  POSNER, Easterbrook, Evans. Claims on Appeal:  Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Fact that particular prong of anti-retaliation section was not cited in complaint is not waiver of such a legal argument. For purposes of the Title VII anti-retaliation section, an employee's participation in a purely internal EEO investigation prior to the filing of any charge is not "participation," which pertains only to official proceedings. Alternatively, there is a good-faith requirement even for "participation" (noting split in circuits) and employee herself denied that there was any Title VII violation in manager's occasional remarks that struck her as sexist. Claim falls short of "opposition" clause for the latter reason (i.e., no good-faith claim of violation).

Hill v. Potter, No. 09-2815 (7th Cir. Aug. 30, 2010). Panel:  KANNE, Flaum, Evans. Claims on Appeal:  ADEA and Rehabilitation Act retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Claim fails on prima facie case. Because the OWCP (an independent agency) placed the employee on light duty due to injury, the reduction of hours attendant to that classification does not constitute an adverse action. no evidence to infer that OWCP acted as a rubber-stamp. Moreover, there is no evidence that addition al hours of work were available for which she was qualified, or even that she had applied for such overtime. On claim for failure to promote, there is no evidence that the employee applied for the promotions in writing under the procedures provided. No triable issue of fact about whether the policy was a subterfuge.

Xodus v. Wackenhut Corp., No. 09-3082 (7th Cir. Aug. 27, 2010). Panel:  BAUER, Rovner, Hamilton. Claims on Appeal:  Title VII hiring (religion). Disposition Below: Judgment following a bench trial [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: District court did not clearly err in making credibility determination that Rastafarian employee never articulated to the hiring manager that his dreadlocks were worn for religious reasons; the record, weighed in favor of the prevailing defendant, showed at most that the employee communicated that the dreadlocks were related to his "beliefs." Evidence of prior consistent statement (EEOC intake questionnaire) excluded; employee did not preserve objection with offer of proof.

Gross v. Town of Cicero, Ill., No. 06-4042 (7th Cir. Aug. 27, 2010). Panel: TINDER, Cudahy, Williams. Claims on Appeal:  § 1983 First Amendment retaliation. Constitutional and state law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Sending letter to mayor complaining about sex harassment of daughter is not protected by the First Amendment because it is not a "public concern"; even if employee was aware of other instances of harassment and took actions to help the same woman file charge with the EEOC, this was not communicated to the mayor. Retaliating against the employee for the daughter's filing the EEOC charge also not protected under the First Amendment.

Berry v. Chicago Transit Authority, --- F.3d ----, 109 FEP 1831 (7th Cir. Aug. 23, 2010). Panel:  ROVNER, Kanne, Tinder. Claims on Appeal:  1. Title VII harassment (sex). 2. Title VII retaliation and discrimination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. A single act can create a hostile environment if it is severe enough, and instances of uninvited physical contact with intimate parts of the body are among the most severe types of sexual harassment. Co-worker's grabbing and physically lifting employee could be found to be severe. Panel also points to sufficient evidence in the record to support a possible finding that the agency was negligent in responding. Conflict in testimony; plaintiff testified that manager sabotaged the investigation. "[His] eagerness to disregard the truth, she asserts, is reflected in his assurance that he didn't care what really happened because Berry was 'a pain in the butt,' his prediction that she would lose her job if she filed charges, and his promise that he was going to do 'whatever it takes to protect CTA.'" 2. On discrimination claim, there was no record of an adverse employment action; employee could not prove that manager refused to place her on injured-on-duty status. Plaintiff forfeited retaliation claim by not raising it in her complaint.

Lindsey v. Walgreen Co., --- F.3d ----, 109 FEP 1718 (7th Cir. Aug. 11, 2010). Panel:  Per curiam [Bauer, Ripple, Kanne]. Claims on Appeal:  ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Employee who worked at pharmacy and override database's drug interaction warning in violation of company policy, and who had previously been warned about this rule, could not show that she was singled out because of age. Although employee who reported her had previously complained about her being "old" and "slow," manager who made decision carried out an independent investigation of violation. Even if age bias was a factor in the decision, employee could only show at most that it was a "motivating" factor, which is not enough under Gross, which foreclosed use of mixed-motive liability.

Marion County Coroner's Office v. EEOC, --- F.3d ----, 109 FEP 1510 (7th Cir. July 27, 2010). Panel:  EVANS, Manion, Sykes. Claims on Appeal:  Title VII demotion and termination (reverse race). Disposition Below: Judgment after an EEOC proceeding ($200,000 compensatory damages) [plaintiff]. Outcome on Appeal: Liability affirmed but damages remitted to $20,000 [plaintiff]. Grounds: Government Employee Rights Act (GERA), 42 U.S.C. § 2000e-16a to 16c, covers any "individual chosen or appointed . . . to serve the elected official on the policymaking level." Such employees may obtain relief though an administrative hearing before an ALJ, with review by the EEOC, and administrative review before the U.S. Courts of Appeals. Panel affirms (as supported by substantial evidence) finding that manager "Ackles' stated reason for taking action against Linehan - namely, that Ackles had 'lost confidence and trust' in Linehan - was pretextual." The finding was adequately based on Ackles' "lack of credibility, combined with his stated preference for employing African-Americans and his actions taken in furtherance of that goal." EEOC continued to have jurisdiction under GERA, holding that Linehan remained an "individual chosen or appointed . . . to serve the elected official on the policymaking level" even though he was demoted shortly before he was fired outright. Panel holds that a $200,000 compensatory damage award was unsupported by the record. "The testimony on Linehan's suffering was extremely brief and only indicated that Linehan had undergone '[w]eekly' therapy sessions for '[s]everal month' for '[s]ituational depression.'" Remittitur to $20,000 ordered to keep the award "within rational limits."

Chaney v. Plainfield Healthcare Center, --- F.3d ----, 109 FEP 1377 (7th Cir. July 20, 2010). Panel:  WILLIAMS, Rovner, Sykes. Claims on Appeal:  1. Title VII harassment (race). 2. Title VII termination (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Segregation of black plaintiff from some white patients was severe or pervasive harassment. One patient refused assistance from black certified nurse's assistant; the assignment sheets stated, verbatim, that the patient "Prefers No Black CNAs." Employer's practice of honoring racial preferences of residents was accompanied by racially-tinged comments and epithets from co-workers (e.g., called a "black bitch"; asked why center "'. . . keep[s] on hiring all of these black niggers? They're not gonna stay anyway"). Center's efforts to curb harassment were ineffective; while the most vulgar statements ceased, plaintiff was still segregated and co-worker remarks continued to offend plaintiff. Suggestion that patient-preference policy was privileged by state patient's rights law rejected; Title VII does not recognize BFOQ for race and any such interpretation of state law is preempted by federal law. Medicare law did not sanction policy of patient racial preference. Separating black employee from bigoted white patients was not a reasonable measure to prevent harassment: center "never corrected the principle source of the racial hostility in the workplace-its willingness to accede to a patient's racial preferences. The hostility that Chaney described came from daily reminders that Plainfield was employing her on materially different terms than her white co-workers." 2. GIMF about whether termination for allegedly using offensive word in front of patient was actually motivated by race. Manager had resolved to fire plaintiff within 24 hours of receiving complaint, a decision he reached without considering another employee's investigation and evidence that the complaint was unfounded. Manager declined to interview plaintiff or co-worker who was present when alleged misconduct occurred. Center's explanation also changed during the litigation; shifting justification for an employment action can itself be circumstantial evidence of an unlawful motive. White CNA was also not punished for comparable misconduct (failing to answer a patient call); the "similarly situated co-worker inquiry is a search for a substantially similar employee, not for a clone."

Jones v. Res-Care, Inc., --- F.3d ----, 109 FEP 1383 (7th Cir. July 16, 2010). Panel:  DARRAH, Manion, Williams. Claims on Appeal:  1. Title VII discrimination (race). 2. Title VII retaliation. State law claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Claims not included in charge could not be added to case; not evidence in record that equitable tolling applied. 2. Employee's subjective feeling of "tension" in the workplace alone is not an adverse action; also no evidence of a causal link.

Pickett v. Sheridan Health Care Center, 610 F.3d 434, 109 FEP 1061 (7th Cir. 2010). Panel: FLAUM, Kanne, Evans. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury verdict ($15,000 compensatory, $50,000 punitive) [plaintiff]. Outcome on Appeal:  Affirmed [plaintiff]. Grounds: Plaintiff, who worked in a nursing home, complained to employer that the residents made lewd comments when she cleaned their rooms, and in one instance a resident cornered and groped her. After unsuccessful efforts to resolve the situation, employee was charged with abandoning her job when she left meeting and did not return to work. Jury held for plaintiff on retaliation claim. District court did not err in denying judgment as a matter of law. It was unnecessary for the employee to establish the employer's liability for harassment in order to prove a claim of retaliation. "The case came down to a choice between trusting Zeller [the manager] or Pickett. If the jury favored Zeller's version of the events, it would have found that Pickett walked out on her job in violation of written policy after an entirely neutral conversation with her boss. As such, Sheridan would not be liable under Title VII because it fired the appellee for breaking the rules, not for protected expression. The trier of fact here chose to go the other way, but the this choice too was supported by the weight of the evidence. The jurors were entitled to believe Pickett's testimony." Statement in closing argument that jury has "to send some message to this employer that they shouldn't do this kind of thing again" was not prejudicial. Concerning damages, employee not required to establish emotional distress with corroborating evidence from a third party. Plaintiff testified that she was very upset by how employer treated her, felt embarrassed talking to her children, and nearly became homeless as a result of her discharge. This evidence supported jury award of $15,000, which is well within the $200,000 cap set out in 42 U.S.C. § 1981a(b)(3)(C) Reviewing punitive damage award, panel rejects argument that it "extend Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), to mandate a one-to-one ratio between compensatory and punitive damages in this case. The logic of Baker does not apply to this Title VII case."

Poer v. Asrtue, 606 F.3d 433, 109 FEP 682 (7th Cir. 2010). Panel: RIPPLE, Manion, Williams. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Employee participated as a witness in EEO hearings of two co-workers. Decision not to promote employee, while adverse, was not (as a matter of law) motivated by retaliation. Lack of evidence of causal link between protected activity and adverse action. decision maker was unaware of the employee's testimony. Manager who was aware of testimony provided some input into decision, but in the end the decision maker did not rely on it (instead, decision not to fill position was based on inadequate number of eligible applicants), so the "Non decision maker's" motive could not be imputed to the agency. Non decision maker also offered administrative support in promotion process, such as preparation of "well qualified certificate" of eligible candidates, but no evidence that he used these duties to influence the decision. Employer not guilty of proffering shifting reasons, where explanations for decision were consistent with the principal explanation (lack of budget). That agency should have made more efforts to secure relocation expenses is not evidence of motive.

Leonard v. Eastern Illinois University, 606 F.3d 428, 109 FEP 545 (7th Cir. 2010). Panel: TINDER, Bauer, Evans. Claims on Appeal: Title VII promotion (Native American). Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: No evidence that panel that made decision not promote plaintiff was opposed to his campaign to abolish the team mascot (Chief Illiniwek). Standardized interview forms showed that supposedly pro-Chief members ranked him comparably to other members of the Committee. Six-month gap between employee submitting complaint and denial of promotion too long to infer causal link. Ambiguous comments about ethnicity from years prior to failure to promote were at most "stray remarks" made years previous.

Everroad v. Scott Truck Systems, Inc., 604 F.3d 471, 109 FEP 353 (7th Cir. 2010). Panel: ROVNER, Easterbrook, Bauer. Claims on Appeal: 1. Title VII and ADEA termination (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant] 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. District court did not err in declining to consider alleged transcriptions of audio-taped conversations, where the actual taped-conversation were not tendered to the district court, and the transcriptions themselves are largely incomplete and incomprehensible. Treating employer's explanation for the termination decision (insubordination) as legitimate, non-discriminatory reason rather than a challenge to the prima facie case, plaintiff failed to establish pretext. Contention that young, male employees who committed insubordination were not terminated was unsupported by record. No evidence in record that managers considered other employees' behavior to be defiant in the same way as plaintiff's behavior. (Panel casts doubt on district court's addition al reason that alleged comparables' misbehavior also occurred a year earlier, not at the same time as plaintiff.) 2. Lateral move to comparable position was not materially adverse. Also, no evidence that decision makers were aware that plaintiff had any complaints about alleged gender-based comments. Termination was an adverse action, but there was no evidence of a causal link; over one year passed between complaint about alleged harassment and decision to fire, and there was no evidence to establish link.

Egonmwan v. Cook County Sheriff's Dept., 602 F.3d 845, 109 FEP 83 (7th Cir. 2010). Panel: EVANS, Cudahy, Sykes. Claims on Appeal: 1.§ 1983 termination (sex). 2.§§ 1981 and 1983 termination (race). First Amendment and state tort claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Assertion that superintendent of woman's jail was using investigation into sexual contact between male sheriffs and female inmates as a vehicle to implement all-female correctional staff was did not support discrimination claim. Superintendent did not make decision to charge plaintiff criminally with the misconduct or to terminate him. Remarks that she wanted to replace all of the men were made long before the decision to terminate plaintiff, and when the transition finally occurred, the male sheriffs were not terminated, but transferred to other divisions. 2. Twenty employees of different races were all ensnared in the same investigation. One white officer allegedly treated more favorably was not similarly situated; that he was not criminally charged was not an employment decision (it was made by States Attorney), and in any event he was accused of contact with a former (not current) inmate. Fact that he was acquitted of sex charges does not mean that employer lacked good-faith cause to fire him on same allegations.

Swearnigen-El v. Cook County Sheriff's Dept., 602 F.3d 852, 109 FEP 74 (7th Cir. 2010). Panel: EVANS, Wood, Sykes. Claims on Appeal: 1. Title VII and § 1983 termination (sex). 2. Title VII, §§ 1981 and 1983 termination (race). 3. Title VII retaliation. First Amendment and state tort claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. No adverse employment action. Employee claimed that he was constructively discharged, but the primary "adverse" actions were owing to his being arrested and incarcerated because of allegations of illegal sexual contact with a prisoner, which did not involve terms and conditions of employment and were not carried out by the employer. Two days' paid leave was not adverse. Alternatively, there was no evidence of a discriminatory motive. Although sheriff was engaged in converted jail to female-only policy, this occurred only after the plaintiff resigned. 2. Twenty employees of different races were all ensnared in the same investigation. One white officer allegedly treated more favorably was not similarly situated; that he was not criminally charged was not an employment decision (it was made by States Attorney), and in any event he was accused of contact with a former (not current) inmate. 3. Retaliation claim not presented in EEOC charge. Holowecki does not change result because even intake questionnaire lacks retaliation allegations.

Gratzl v. Office of the Chief Judges, 601 F.3d 674, 22 A.D. Cases 1865 (7th Cir. 2010). Panel: MANION, Bauer, Williams. Claims on Appeal: ADA and Rehabilitation Act reasonable accommodation and discrimination. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Employee with incontinence did not establish that she "qualified individual with a disability," because - assuming that her condition substantially limited the major life function of elimination of waste - essential function of job of court reporter was ability to rotate through courts and perform in-court services. Although plaintiff had previously been allowed to serve in a control-room capacity, the court eliminated that job. Alternatively, plaintiff rejected proposed reasonable accommodations (assigning her to courtrooms closest to bathrooms, not assigning her to jury trials, establishing a signal she could use with judge to take a short break). Restructuring workplace or reinstating old, eliminated control-room position was not a reasonable accommodation.

Stockwell v. City of Harvey, 597 F.3d 895, 108 FEP 1153 (7th Cir. 2010). Panel: RIPPLE, Williams, Tinder. Claims on Appeal: Title VII promotion (reverse race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court held that plaintiffs failed to make out prima facie case, where they could not prove that similarly or less-qualified non-white candidates were treated better in process. Court affirms on alternative ground that plaintiffs did not present genuine issue of material fact about pretext. Employer was allowed to go outside of process and recruit candidate with superior qualifications to plaintiffs. Different plaintiff-candidates scored weakly for negative attitude, appearance (failure to wear dress uniform to interview), resistance to change, dishonesty, vandalism of fire station property, and the belief that one candidate had already expressed his intention to retire in a year or two.

Budde v. Kane County Forest Preserve, 597 F.3d 860, 22 A.D. Cases 1710 (7th Cir. 2010). Panel: BAUER, Manion, Tinder. Claims on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Police chief who was terminated after DUI incident and had his driver's license suspended was not a "qualified individual with a disability" (e.g., he violated workplace rules and could not drive a police vehicle).

Turner v. The Saloon, Ltd., 595 F.3d 679, 108 FEP 673 (7th Cir. 2010). Panel: SYKES, Manion, Rovner. Claims on Appeal: 1. Title VII harassment (sex). 2. ADA termination and reasonable accommodation. 3. ADA and Title VII retaliation. FLSA claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. District court erred in failing to consider discrete acts of discriminatory conduct that occurred prior to 300 days from plaintiff's EEOC filing. Considering all related incidents, plaintiff presented a genuine issue of material fact whether conduct was subjectively and objectively severe or pervasive (five instances of explicit sexual harassment, There of which involve physical contact. That plaintiff is male, and had previous consensual relationship with the supervisor would not preclude jury from finding liability. Even a single incident of physical grabbing may create a hostile work environment; "Turner's claim that [supervisor] Lake grabbed his penis through his pockets is probably severe enough on its own to create a genuine issue of material fact." Acts of retaliation incident to a harassment complaint may also contribute to the hostile work environment: "Turner claims that Lake punished him for refusing her sexual advances by assigning him to less profitable tables and by reprimanding him in front of other employees. These allegations, taken together, create a genuine issue of material fact on Turner's hostile-workplace claim." Remand needed because district court did not rule on the remaining issue of whether the employer in this case may be liable for the supervisor's behavior under Faragher/Ellerth. 2. Plaintiff with psoriasis not "substantially limited" in the major life activity of walking; pain and limp alone was not sufficient where objectively the employee continued to engage in recreational sports, bicycling and walking. 3. Plaintiff fa led to present a genuine issue of material fact about retaliation either under direct or indirect method. Gap between complaint to employer about harassment and termination was too long (two months for disability, ten months for harassment) to imply retaliatory motive on its own. In between, he had received at least ten reprimands for a variety of work rule infractions, and was fired after abandoning a shift. Under indirect method, plaintiff fails to make out prima facie case because his performance was so deficient that he was not meeting legitimate job expectations.

Serwatka v. Rockwell Automation, Inc., No. 08-4010 (7th Cir. Jan. 15, 2010). Panel: ROVNER, Evans, Van Bokkelen. Claims on Appeal: ADA termination. Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: ADA does not incorporate the "mixed-motive" liability section of Title VII, 42 U.S.C. § 2000e-2(m), so jury verdict that determined that disability was only a motivating, not but-for factor did not support liability against employer.

LaFary v. Rogers Group, Inc., 591 F.3d 903, 108 FEP 97 (7th Cir. 2010). Panel: WOOD, Flaum, Sykes. Claims on Appeal: 1. Title VII/PDA transfer. 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant].  Grounds: 1. Plaintiff failed to establish that manager knew about her pregnancy before making decision to transfer her. Her own declaration fails to pin down a date, and contradicts her lack of knowledge at her deposition. 2. Plaintiff failed to identify a comparable employee upon whom to base a prima facie case. Only comparable employee (who remained out beyond 180 days but was rehired) was rehired at a time where the company was prospering, and because he had special skills that the plaintiff did not possess. Failure to rehire plaintiff came when company was in economic distress.

Lewis v. City of Chicago Police Dept., 590 F.3d 427 (7th Cir. 2009). Panel: SIMON, Evans, Sykes. Claims on Appeal: Title VII discriminatory assignment (sex) and retaliation. Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Jury charge was not made inaccurate by unintentional inclusion of word "also," which according to plaintiff implied that she had to prove her discrimination claim as a pre-condition to retaliation liability. Jury was not misinformed: it heard closing arguments that corrected the misimpression and the charge as a whole was correct. Moreover, plaintiff waived error at trial under FRCP 51(b)(2). Misprinted verdict form including wrong claim as to individual officer defendant was promptly corrected by court wand was not error. District court did not err in submitting question of "materially adverse action" to jury on discrimination claim, where defendant presented evidence contesting whether the failure to assign plaintiff to temporary duty in Washington D.C. had any effect on her career. Instruction was also correct for retaliation claim and was consistent with Burlington Northern. Instruction correctly required the jury to find intentional discrimination. Plaintiff waived issue about whether mixed-motive instruction should have been given where her tendered instruction was inadequate statement of law, then abandoned request at jury instruction conference. Exclusion of "pretext" instruction was not error. Objection to failure of district court to give general instructions (burden of proof, weight of evidence etc.) waived and not plain error. District court did not err in excluding reference to an injury that the plaintiff suffered in a forced entry to a home, i.e., being accidently hit with a sledgehammer and sustaining a broken neck (FRE 403). Denial of request for neck surgery for injury not probative of retaliation where there was no evidence that decision maker in medical unit knew about plaintiff's discrimination complaint. District court did not err in excluding evidence of prior investigations by employer and EEOC, which just stated conclusions, under FRE 403 for risk of confusion. Failure to remedy retaliation (by disciplining superior officer) did not state a separate retaliation claim. Statements by other officer who were the plaintiff's co-workers to "watch her back" not probative because not associated with a decision maker. Evidence of alleged discrimination by other supervisory personnel properly excluded. Plaintiff not unduly prejudiced by missing-witness closing argument (and plaintiff failed to object). Sufficient evidence supported verdicts on both claims .

Patterson v. Indiana Newspapers, Inc., 589 F.3d 357, 107 FEP 1697 (7th Cir. 2009). Panel:  SYKES, Cudahy, Flaum. Claims on Appeal:  1. Title VII job assignment (religion) (plaintiff #1). 2. ADEA and Title VII termination (religion, race) (plaintiff #2). Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee who was transferred from editorial writing to copy editing may have suffered an adverse employment action, but failed to demonstrate a genuine issue of material fact that she was meeting the newspaper's legitimate expectations (she had violated that company's overtime policy) or that employees without her conservative Christian religious beliefs would have been treated differently. Transfer itself did not constitute "constructive discharge"; did not make conditions unbearable. 2. Plaintiff failed to show that he was performing to employer's legitimate expectations (long history of errors).

Milam v. Dominick's Finer Foods, Inc., 588 F.3d 955, 107 FEP 1569 (7th Cir. 2009). Panel:  POSNER, Kanne, Rovner. Claims on Appeal:  Title VII/§ 1981 shift assignment claim (race). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: No discrimination occurred where white clerks who were supposedly promoted over black plaintiffs, where one white woman was erroneously listed in company records as a produce clerk, and the other white woman was accidently allowed to work hours that could have been assigned to the plaintiffs, before erro in scheduling was corrected. Court notes that plaintiffs would have had difficulty proving damages in any case, because they did not work any hours during the shifts in question, and plaintiffs presented no evidence of probabilistic damages.

Milwaukee Deputy Sheriffs' Ass'n v. Clarke, 588 F.3d 523, 107 FEP 1571 (7th Cir. 2009). Panel:  WILLIAMS, Bauer, Cudahy. Claims on Appeal:  § 1983 Establishment Clause. Disposition Below:  Summary judgment for plaintiff [plaintiff]. Outcome on Appeal:  Affirmed [plaintiff]. Grounds: Mandatory attendance by deputies at ministry meeting showcasing outside, proselytizing group in workplace, specifically endorsed by Sheriff and in connection with discussion of promotions to the rank of Captain violated Establishment Clause rights of employees. Free Exercise clause did not require that sheriff give group access.

Senske v. Sybase, Inc., 588 F.3d 501, 107 FEP 1583 (7th Cir. 2009). Panel:  EVANS, Bauer, Kanne. Claims on Appeal:  ADEA termination. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Plaintiff sales manager failed to present genuine issue of material fact about whether the reasons proffered by the employer for termination (failure to act as "team player," to complete paperwork, to correct tardiness or to respond to client complaint) were pretextual. The manager's high numbers in 2004 did not insulate him from termination in 2005, most of which was driven by a single transaction on which he contributed very little. That two other older managers were fired around the same time is not "direct evidence" of discrimination where there was no evidence that the reasons for their terminations were false.

Ford v. Minteq Shapes and Services, Inc., 587 F.3d 845, 107 FEP 1446 (7th Cir. 2009). Panel:  BAUER, Wood [Williams, recused]. Claims on Appeal:  1. Title VII harassment (race). 2. Title VII compensation (race). 3. Title VII retaliation. Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Plaintiff failed to establish severe or pervasive harassment where he was called "black man" and "black African-American," subjected to an affirmative-action remark, called a "gorilla," and barred from bringing family members to the company Christmas party. 2. Although there was a white employee with the same title who was paid more, plaintiff did not present evidence about their respective responsibilities, and thus did not make out prima facie case. 3. Seeking medical treatment is not a protected activity.

Scruggs v. Garst Seed Co., 587 F.3d 832, 107 FEP 1449 (7th Cir. 2009). Panel:  WILLIAMS, Bauer, Wood. Claims on Appeal:  1. Title VII retaliation. 2. Title VII harassment (sex). Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Decision to eliminate position held by employee was made before she engaged in protected activity (i.e., filing EEOC complaint). Although employee was not rehired after filing charge, employee failed to establish that hits was pretextual, because the employee who was selected had more experience as a research assistant. 2. Conduct was not severe or pervasive; most comments were related to the employee's work habits or alleged lack of sophistication, rather than gender, and were directed at male employees as well.

O'Neal v. City of Chicago, 588 F.3d 406, 107 FEP 1350 (7th Cir. 2009). Panel: BAUER, Wood, Williams. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Eight of ten reassignments time-barred, thought they may serve as background evidence. It was protected activity to file a Title VII lawsuit and grieve retaliation claim, but not to complain to commander that lieutenant tolerated insubordination where there was no mention of discrimination. Reassignments were adverse action, because they were repetitive and negatively affected opportunities for advancement. But there was insufficient evidence of causation based on lieutenant's remark that plaintiff officer was a "complainer" and "dating a gang banger." By indirect evidence, officer failed to show she was working up to employer's legitimate expectations (insubordination, confrontational behavior, inability to conduct street operations).

Butler v. Village of Round Lake Police Dept., 585 F.3d 1020, 22 A.D. Cases 833 (7th Cir. 2009). Panel: EVANS, Posner, Manion. Claims on Appeal: ADA termination and reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee judicially estopped by prior testimony in pension board hearing that chronic obstructive pulmonary disease rendered him permanently disabled. Moreover, plaintiff failed to present evidence that he could have performed essential functions of police officer.

Brunker v. Schwan's Home Service, Inc., 583 F.3d 1004, 22 A.D. Cases 737 (7th Cir. 2009). Panel: ROVNER, Cudahy, Flaum. Claims on Appeal: 1. ADA "regarded as" termination. 2. ADA reasonable accommodation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant].  Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. District court abused discretion by denying discovery into the performance history of other employees who had supposedly committed rule infractions, on the ground that the employer advanced a different reason for the employee's termination (failure to service customers). An employer accused of discrimination cannot limit discovery simply by restricting during litigation its stated reasons for an adverse action. Employee presented evidence that employer's may have asserted reasons for firing him other than the one it relied on during litigation. "An employer's shifting explanations are evidence that its stated reasons did not truly motivate the adverse action and that an impermissible one actually did." Court also erred in denying motion to compel former supervisor who had accused employee of dishonesty, to explain what dishonest conduct resulted in supervisor's own discharge. This would constitute, conceivably, a specific instance of character for truthfulness, FRE608(b). Information requested about company's anti-discrimination training was relevant to the question of punitive damages. "The record contains adequate evidence to support a theory that Schwan's regarded Brunker as being disabled in the major life activities of walking, caring for himself, and speaking. For example, the day before he left for the Mayo Clinic, Schwan's issued Brunker multiple 'corrective action reports,' including a dress-code violation, suggesting that Schwan's did not believe that Brunker was able to care for himself because of his apparent condition. Furthermore, Schwan's disciplined him even though other employees were not cited for similar violations. As for Schwan's motive for firing Brunker, Schwan's fired Brunker immediately after he returned from treatment, but Schwan's backdated the termination notice to before he left for the clinic, evidently hoping to avoid the impression that his apparent condition influenced Schwan's decision to terminate him." Sanctions against plaintiff of $4,423 for pursuing discovery vacated. 2. Plaintiff never requested specific accommodations sought in litigation; alternatively, employer offered significant accommodations that plaintiff did not accept.

Ekstrand v. school Dist. of Somerset, 583 F.3d 972, 22 A.D. Cases 645 (7th Cir. 2009). Panel: BAUER, Easterbrook [EVANS, concurring]. Claims on Appeal: 1. ADA reasonable accommodation. 2. ADA constructive discharge. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff school teacher with seasonal affective syndrome was a qualified individual (even while she was on leave) because she could have performed the job with the accommodation of being moved to another, brighter classroom: She presented evidence that she ceased being a qualified individual with a disability no earlier than between November 30, 2005 and January 3, 2006, not on November 14, 2005, as the district court found. Moreover, she may have remained a qualified individual later still because Ekstrand presented evidence that the school district was responsible for aggravating her disability. Genuine issue of material fact about interactive process. Despite her repeated requests for a transfer, the record reflects that the school failed to respond. Little hardship would have been imposed in providing employee an available classroom with more light. Had the school district accommodated plaintiff with new room, it would have experienced costs associated with switching the items in the two rooms and with performing any necessary readjustments specific to the teachers' respective curricula. 2. Failure to provide accommodation was not so severe that it would have given a reasonable employee no alternative to quitting. school had in fact provided other accommodations other than moving employee to room with more natural light.

McGowan v. Deere & Co., 581 F.3d 575, 107 FEP 225 (7th Cir. 2009). Panel: LAwreNCE, Flaum, Williams. Claims on Appeal:  Title VII promotion (race). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds:  Plaintiff fails to make out a prima facie case because he fails to present evidence showing that similarly situated employees were treated better with respect to pulling, lifting or pushing requirements; plaintiff only offered his opinion about two other employees' restrictions in an affidavit without corroboration with evidence supported by personal knowledge. Alternatively, there is no evidence that reason given by the employer (that employee could not meet 25-lb lifting requirement) was not honestly, even if mistakenly, believed. Record revealed that there was a medical basis for the restriction in the file. Possible racial motive by company motive not proven on record and in any event not communicated to decision makers.

Fredricksen v. United Parcel Service, Co., 581 F.3d 516, 22 A.D. Cases 551 (7th Cir. 2009). Panel: ROVNER, Evans, Tinder. Claims on Appeal:  ADA harassment and retaliation. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds:  ADAAA not retroactive. Employee fails to establish either that he was disabled or regarded-as disabled. Fatigue that impairs his ability to walk was not sufficiently severe to rise to a substantial limitation, compared to general population. Employee failed to present medical evidence to support self-assessment; at most, he testified that he got winded while shopping or climbing stairs. Same problem with major life activity of breathing; no medical evidence, combined with weak self-assessment that does not compare the plaintiff to the population at large. Nor was there evidence that employer regarded his as substantially limited in the major life activity of working; even if "aircraft mechanic" constituted a "broad range of jobs," where employer continued to assign him to planes. Disciplinary actions did not imply belief that plaintiff could not carry out job functions.

Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622, 107 FEP 129 (7th Cir. 2009). Panel: CUDAHY, Ripple, Wood. Claims on Appeal:  Title VII termination (national origin). First Amendment and Ill. state law claims (not discussed here). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds:  District court erred in assuming that evidence proffered by the plaintiff (excerpts of her own deposition) was worthy of no weight because it was "self serving." Plaintiff testimony based on first-hand experience admissible if it presents specific facts, even if that testimony may be less plausible than the opposing litigant's conflicting testimony. District court also erred in holding that there was no causal connection between non-renewal of the plaintiff and remarks by principal ("[Hispanic students] are better than Polish and deserve more than Polish people. . . . [I]f you don't want to do whatever I tell you to do, you can leave my school," "'I brought you to this school and you stupid Polack pushed the teachers against me."). The bare fact that plaintiff was not fired immediately after principal allegedly made these remarks does not destroy the potential causal connection. The structure of the school year dictated the employment timetable, and principal may not have been able to recommend nonrenewal of contract any earlier than she did. In any event, There to four months between a remark and an employment action is not so long as to defeat the inference of a causal nexus. Even if school board advances valid reasons for decision not to renew, in mixed-motive Title VII case jury could still grant verdict on liability to the plaintiff.

Prince v. Stewart, 580 F.3d 571, 107 FEP 293 (7th Cir. 2009). Panel: POSNER, Coffey, Manion. Claims on Appeal:  Title VII and ADEA termination. Disposition Below:  Denial of Fed. R. Civ. P. 60 relief [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds:  Although plaintiff re-filed his action 97 days after EEOC sent new right to sue letter, there was genuine issue of material fact about when employee received the letter; on the employee's testimony, he filed complaint on the 90th day from receipt.

Mach v. Will County Sheriff, 580 F.3d 495, 107 FEP 134 (7th Cir. 2009). Panel: KANNE, Bauer, Flaum. Claims on Appeal:  ADEA transfer. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds:  Reason for action (poor job performance) was well known and throughly documented: employee engaged in insubordination, failed to improve work after warning and a suspension. Comment that employee should have been transferred to lesser patrol duties because he was nearing retirement made by non-decision maker. Common-law "bad faith" exception supported award of attorneys' fees to employer affirmed; no abuse of discretion where five out six claims were purely meritless by the time of summary judgment.

Roby v. CWI, Inc., 579 F.3d 779, 107 FEP 7 (7th Cir. 2009). Panel: LAwreNCE, Flaum, Williams. Claims on Appeal:  1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds:  1. Employee failed to show tangible job action involving supervisor, where employee was not actually or constructively discharged, but simply failed to returned to work after scheduled leave. No evidence that she was required to continue to work with alleged harasser, and company did what it could to separate the two as much as possible. Employee also told to report all future incidents. Employer also prevails as a matter of law on its Faragher/Ellerth affirmative defense, because it investigated complaint, disciplined alleged harasser and warned that future infractions would lead to termination. Insufficient evidence to infer that employer was previously aware of harassment. Waiting five months to complain about harassment was unrasonable2. Plaintiff fails to present prima facie case of adverse action by being removed from work schedule, during time when employee made no effort to return to work or call in.

Coffman v. Indianapolis Fire Dept., 578 F.3d 559, 106 FEP 1793 (7th Cir. 2009). Panel: ROVNER, Easterbrook, Posner. Claims on Appeal:  1. Title VII certification requirement (sex). 2. Title VII harassment (sex) 3. ADA medical testing. Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds:  1. "Sex plus" theory - that she was discriminated against as a "short woman" - fails, because plaintiff cna point to no evidence that driving evaluations, fitness for duty evaluations, suspension and reassignment to light duty was motivated impart because of sex.2. Job criticism, performance evaluations and psychological evaluations not objectively severe or pervasive.3. Psychological testing was consistent with business necessity and job related, where there had recently been two fighter suicides and plaintiff's co-workers thought that she did not seem like herself. Assessment showed inability to make decisions or even to perform routine tasks, which could impair her performance in an emergency situation and pose a Thereat to herself, co-workers and the general public.

Dear v. Shinseki, 578 F.3d 605, 106 FEP 1802 (7th Cir. 2009). Panel: WOOD, Cudahy, Ripple. Claims on Appeal:  1. Title VII demotion (race) and retaliation.  2. Title VII harassment (race). Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds:  1. Under indirect theory, employee failed to make out prima facie case on element of meeting legitimate expectations, where at the time of her demotion she had failed to comply with supervisor's directive to deal with resulting low morale. Also, there is no comparable employee; individuals indicated in record were either lower-level individuals or employed in an entirely different capacity.2. Although charge did not specifically identify harassment theory, the claim implicates same conduct and individuals as the other claims, thus it is preserved. Nevertheless, criticisms aimed at plaintiff were not shown to be motivated by race; one of the supervisors herself was African-American.

Laouini v. CLM Freight Lines, Inc., 106 FEP 1798 (7th Cir. 2009). Panel: FLAUM, Kanne, Wood. Claims on Appeal:  Title VII termination (race and national origin). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: Employee presented a genuine issue of material fact about timely filing of charge where he filed by fax (as permitted by the district office) on final day of deadline, but "received stamp" is dated four days later. Fax confirmation generated by sender's machine presents rebuttable presumption, or at least genuine issue of material fact, that fax was received by the intended recipient. 9 Although confirmation does not prove the content of the charge, attorney who sent fax prepared affidavit that fax included charge an cover sheet. (Dictum that attorney might have to serve as fact witness, prohibited by rules of professional conduct.) That EEOC regulations do not expressly authorize fax filing does not contravene local district offices' invitation to use fax. EEOC employee who prepared memo to file did not disaffirm that charge arrived in the district office on time, simply that file did not contain faxed charge, with could have been misplaced or discarded.

Porter v. Erie Foods Intern., Inc., 576 F.3d 629, 106 FEP 1806 (7th Cir. 2009). Panel: RIPPLE, Posner, [ROVNER, concurring]. Claims on Appeal:  Title VII harassment (race) and retaliation. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds:  Liability for co-worker harassment could not be imputed to the employer where the employee only reported single incident to management (display of noose), and management took immediate steps to remove the noose, counsel employee's co-workers, investigate the incident and offer plaintiff a transfer to a different part of the plant. This was reasonable enough to prevent future harm. Plaintiff thus did not fully avail himself of preventative or remedial measures. Subjective fears that company would handle investigation poorly insufficient basis for not reporting violations. One action taken by HR - temporarily placing the noose on office bulletin board - was ill-advised. Although there is no evidence in the record that HR employee's motives were in any way unlawful, this action, apparently taken to remind herself to report the matter to her seniors, also demonstrated a lack of recognition of the powerful message of racial hatred that a noose evokes. However, this misstep stands in contrast to HR employee's otherwise diligent actions to bring the harassment to an end. Co-worker harassment likewise cannot be attributed to company for purposes of constructive discharge, where company did take corrective steps.

Martino v. MCI Communications Services, Inc., 574 F.3d 447, 106 FEP 1489 (7th Cir. 2009). Panel: EVANS, Cudahy, Tinder. Claims on Appeal:  ADEA termination. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds:  Employee fired during a reduction in force. Immediate supervisor made occasional remarks that plaintiff was an "old-timer" but this does not constitute direct evidence of discrimination, where supervisor was not the decision maker, and he did not exercise "singular influence" over decision (i.e., cat's-paw theory). decision makers did two levels of independent analysis of the employee's performance. Evidence of non-decision maker who allegedly made age-biased comments after plaintiff was fired also not direct evidence. By indirect method, employee cannot make out prima facie case. Employee did not meet legitimate expectations, where supervisors documented that they did not think he was a team player, was not available and did not take active role in process, and that after merger, focus of company changed and employee's skill set became obsolete. Moreover, there is no evidence of age-based discrimination where younger and protected age employees are both being fired, and even though some younger employees were retrained, record showed they were not similarly situated because plaintiff's inadequate performance stood out. Court also notes "same actor" inference, where same supervisor accused of age bias was the one who hired him two years earlier. Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), requires "but-for" causation.

Casna v. City of Loves Park, 574 F.3d 420, 22 AD Cases 129 (7th Cir. 2009). Panel: ROVNER, Manion, Sykes. Claims on Appeal:  ADA retaliation. § 1983 due process claim (not discussed here). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds:  Plaintiff presented genuine issue of material fact about protected activity and causation. Manager who doubted employee's hearing impairment snapped, "How can you work if you cannot hear?" Employee, who testified that she felt Threatened by this comment, countered, "Aren't you being discriminatory?" Manager refused to speak further with employee and hurried off to consult with chief, who instructed manager to prepare a written evaluation of employee. Employee's comment was protected opposition to discrimination. One-day gap between the statement and the recommendation that she be terminated early constituted sufficient evidence, by way of "temporal proximity," of a causal connection.

Hobbs v. City of Chicago, 573 F.3d 454, 106 FEP 1384 (7th Cir. 2009). Panel: WILLIAMS, Bauer, Kanne. Claims on Appeal:  1. Title VII and § 1981 promotion (sex, race). 2. Title VII and § 1981 retaliation. 3. Title VII and § 1981 harassment. Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds:  1. Employee fails to make out genuine issue of material fact on existence of similarly situated employees. Employee who was promoted to Acting Foreman was known for his work ethic, had experience with snow-removal program, and more experience as a driver. Plaintiff's superior educational and computer credentials were not part of the job qualifications for Foreman. If city deviated from written job qualifications, that would only excuse the employee's failure to apply for the job, and would not exempt her from demonstrating her superior qualifications. Employee also fails to establish pretext; no evidence that city did not believe successful candidate had the right credentials for the job. Reaffirms case law that employee must establish both that the employee's explanation is a lie and the real reason is discrimination. Assertion that plaintiff was better qualified insufficient; plaintiff would have to be clearly better qualified to present genuine issue of fact. Plaintiff also lack testimony or personal knowledge of race/sex-biased comments or hiring practices. At worst, the evidence reveals favoritism in decision, but that is not the same is race or sex discrimination. 2. No adverse actions in job assignments that were withing the employee's job duties, feeling intimidated by while male co-workers and being required to produce a valid commercial driver's license. Failure to investigation vandalism to plaintiff's car might be materially adverse, but commissioner (who did not investigate accusation) was not aware of the EEOC charge filed by plaintiff. 3. Alleged incident of vandalism and having co-workers congregate outside office not severe or pervasive.

Stephens v. Erickson, 569 F.3d 779, 106 FEP 1036 (7th Cir. 2009). Panel: KANNE, Wood, Sykes. Claims on Appeal:  Title VII retaliation. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds:  No genuine issue of material fact about causal link between prior lawsuit/discrimination complaints and failure to promote. Interviewers involved in decision were not shown to be aware of protected activity. Interview process not slanted, and interviewers cited specific reasons for not preferring plaintiff. No evidence that one figure in process who knew about complaints controlled, influenced or even played a role in the promotions. While the record suggested that the job was already essentially given to the winning candidate before the end of the process, this does not show that the employee suffered retaliation; there were two other unsuccessful candidates who were equally aggrieved. Alleged intimidation and isolation not sufficiently adverse. Reassignment to photographing vehicles and sending them for repair not materially adverse, in spite of being less desirable to plaintiff; duties were within job description, differed minimally from his old duties and did not prevent him from using his skill and expertise. Comment by administrative assistant that commissioner was upset with the plaintiff's complaints was not admissible as a party admission (FRE801(d)(2)(D)) because declarant was not involved in promotion process and making such declarations was not within his job duties. Other statements tendered by plaintiff, even if admissible, were not probative of retaliation.

Farr v. St. Francis Hosp. and Health Centers, 570 F.3d 829, 106 FEP 1046 (7th Cir. 2009). Panel: EVANS, Easterbrook, Bauer. Claims on Appeal: Title VII termination (reverse sex). State law claims (not discussed here). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds:  Although employee was only male in the department, there was no evidence that he was singled out for misuse of his office computer to visit pornographic websites. No evidence that other employees committed same violation

Bodenstab v. County of Cook, 569 F.3d 651, 21 A.D. Cases 1836 (7th Cir. 2009). Panel: MANION, Easterbrook, Flaum. Claims on Appeal:  ADA termination and retaliation. First Amendment, due process and state law claims (not discussed here). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds No pretext in decision to fire employee who Threatened to kill co-workers and supervisor. Even if Thereats were spurred by the mental disability, employer would not be required to accommodate it.

Lucero v. Nettle Creek school Corp., No. 08-2943 (7th Cir. May 29, 2009). Panel: FLAUM, Bauer, Evans. Claims on Appeal:  1. Title VII and Title IX retaliation. 2. Title VII, Title IX and §1981 discrimination. 3. Title VII and Title IX hostile work environment. State contract claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Reassignment from 12th grade to 7th grade class room not shown to be materially adverse. Primary evidence was affidavits of teachers who claimed that treatment of plaintiff dissuaded them from making complaints, but record established that same teachers had continued to make complaints anyway. No loss in pay, benefits or privileges. Personal belief that 12th grade assignment was superior was purely subjective impression. 2. Transfer out of senior AP class (that arguably requires more training) and into 7th grade class with occasional floater duties not a materially adverse employment action.3. Occasional incidents involving students who said inappropriate things in class not shown to severe or pervasive, or to be targeted at the employee because of race or sex. Alternatively, employer adequately investigated the complaints and took corrective action.

Winsley v. Cook County, 563 F.3d 598, 106 FEP 12 (7th Cir. 2009). Panel: RIPPLE, Bauer, Wood. Claims on Appeal: 1. ADA discrimination. 2. Title VII discrimination (race). 3. ADA and Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Driving not a major life activity under the ADA in its own right. Though the inability to drive might interfere with the major life activity of working, employee failed to demonstrate tath her inability to drive foreclosed her from a class or broad range of jobs. 2. No evidence that any similarly situated individual was compelled to drive to visit clients; white employee whom she named not demonstrated to have comparable disability. Alternatively, employee's absentee record established that she did not meet the employer's legitimate expectations.3. Employee established no adverse action (allegation of harassment not demonstrated to rise to "severe or pervasive" standard), nor identification of comparable employee.

Antonetti v. Abbott Labs, 563 F.3d 587, 106 FEP 17 (7th Cir. 2009). Panel: BAUER, Posner, Williams. Claims on Appeal: 1. Title VII/§ 1981 termination (race, national origin). 2. Title VII/§ 1981 retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employees fired for theft of time did not identify person who was treated better and thus did not make out prima facie case; only other employee implicated in investigation told the truth and did not try to hide fact that he left work. 2. Even if Abbott was partially motivated by employee's complaints in its termination decision, it would have fired him without such motivation because of the underlying time-card fraud and dishonesty.

Brooks-Ngwenya v. Indianapolis Public schools, 564 F.3d 804 (7th Cir. 2009). Panel: Per Curiam(Posner, Williams, Tinder). Claims on Appeal: Title VII/EPA pay discrimination (sex). Copyright claim (not discussed here). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Summary judgment affirmed on grounds of res judicata, based on settlement and dismissal of prior suit.

Hampton v. Ford Motor Co., 561 F.3d 709, 105 FEP 1670 (7th Cir. 2009). Panel: KANNE, Evans, Sykes. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Release that was part of severance agreement was enforceable under ordinary contract theory and as "knowing and voluntary" under Title VII. Harassment claim accrued prior to signing of release; employee did not have to wait until EEOC issued right to sue before claim accrued. Employee was sophisticated and had attorney during process and language in release was clear. In any event, employee did not "tender back" consideration to challenge release.

Teal v. Potter, 559 F.3d 687, 21 A.D. Cases 1153 (7th Cir. 2009). Panel: ROVNER, Posner, Evans. Claims on Appeal: Rehabilitation Act failure to accommodate and discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Vacated with mandate to dismiss without prejudice [defendant]. Grounds: Employee failed to exhaust July 2003 dismissal on her claim with the EEOC; charge only concerned discriminatory acts alleged between March and December 2002. Dismissal was entirely different, separate and distinct form earlier conduct. Panel notes, in any event, that record conclusively establishes that employee was terminated for failure to follow arbitration order.

Greene v. Potter, 557 F.3d 765, 105 FEP 1089 (7th Cir. 2009). Panel: BAUER, Ripple, Evans. Claims on Appeal: Title VII denial of overtime (sex) Judgment as a matter of law [defendant] Affirmed [defendant] District court did not err in granting JMOL before all of the evidence was presented on plaintiff's case-in-chief, where it was apparent that plaintiff could not prove claim. Assuming that employee met prima facie burden of proving that she was denied significant Sunday overtime relative to male employee, agency rebutted with evidence that there was far greater need for overtime on Mondays/Fridays. Possible violations of negotiated, written overtime policy not probative of pretext for sex discrimination. At most, evidence established that supervisor manipulated policy to benefit his friends, not because of sex.

Nagle v. Village of Calumet Park, 554 F.3d 1106, 105 FEP 749 (7th Cir. 2009). Panel: WILLIAMS, Flaum, Evans. Claims on Appeal: 1. Title VII (reverse race) and ADEA suspension and demotion. 2. Title VII and ADEA retaliation. First Amendment retaliation (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Although comments by decision makers made months before or after the adverse decision might be admissible by the "direct method," this case does not reach that Threshold. Chief who supposedly referred to some officers as "those old white motherfuckers" 15 time over a There year period, combined with a statement that the employee might be getting too old for the job (after a prisoner escape), not enough to establish intent, because it was not shown to influence any personnel decisions. Trivial changes in job assignments (strip mall patrol, manning evidence locker) not adverse employment actions. Plaintiff lacks comparative evidence showing that assignment and other decisions fell adversely on older whites. Employee's suspension not a "sham" where an investigation revealed that the officer actually may have failed to perform duty by entering a home to conduct arrest. Chief who made remarks was also not involved in decision to suspend plaintiff. Employee failed to put on adequate record of ages of alleged comparators, who may or may not by substantially younger. Under indirect, pretest burden-shifting method, officer failed to proffer "background circumstances" against older white officer. 2. No materially adverse actions. No evidence that assignment to strip mall patrol was punitive, or that other officers who refused that duty were not punished. Changing court date for officer was also a mere inconvenience. Unserved suspension not an adverse action. Suspension that was served (even though later reversed, with back pay restored) was adverse, but officer did not establish causation, as person who made decision was not shown to be aware of EEOC charge, and run up to suspension occurred before notice of charge was served on village.

Jones v. City of Springfield, Ill., 554 F.3d 669, 105 FEP 491 (7th Cir. 2009). Panel: MClaims on Appeal: Title VII promotion (reverse race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: White officer presented insufficient evidence under direct method to show that if he had bee black, he would have been promoted. Evidence that a black officer was promoted and that race might have been a positive factor does not establish that race was, conversely, a negative factor in denying him a promotion. Although "early" promotions (before vacancies officially existed) occurred in the department, he did not show that it was used to promote only black officers. Under indirect, burden-shifting pretext analysis, there was no evidence of a vacancy and hence no evidence he was treated differently because of race, so no prima facie case. Vacancy only existed after expiration of the promotion eligibility list.

EEOC. v. Watkins Motor Lines, Inc., 553 F.3d 593, 105 FEP 364 (7th Cir. 2009). Panel: EASTERBROOK, Evans, Tinder. Claims on Appeal: EEOC enforcement action under Title VII. Disposition Below: Dismissed on subject matter jurisdiction grounds, FRCP 12(b)(1) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Two provisions of Title VII itself authorize district courts to adjudicate subpoena-enforcement actions filed by the EEOC. 42 U.S.C. §§ 2000e-5(f), -8(c) and 28 U.S.C. §1345. District court's belief that the EEOC should not have investigated or sued does not detract from the fact that it asked court to enforce its subpoena. Filing of a valid charge conferred authority on the EEOC under 29 C.F.R. § 1601.10.to perform the investigation, regardless of the charging-party's latter-day attempts to withdraw: "[Withdrawing a charge does not mean that a valid charge was never filed. Watkins does not contend, and the district court did not find, that Jackson's charge was invalid when filed. All Shell Oil requires is a valid charge. Once one has been filed, the EEOC rather than the employee determines how the investigation proceeds."

Jackson v. City of Chicago, 552 F.3d 619 (7th Cir. 2009). Panel: EVANS, Kanne, Sykes. Claims on Appeal: Title VII (race) and ADEA promotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee could not complain of discrimination in two promotions, where the employees who lost out scored lower than the other applicants on pen-and-paper tests, and other candidates were not shown to have received superior training opportunities. The training opportunities occurred outside of 300 day charge-filing period.

Lloyd v. Swifty Transportation, Inc., 552 F.3d 594, 21 A.D. Cases 675 (7th Cir. 2009). Panel: ROVNER, Cudahy, Ripple. Claims on Appeal: 1. ADA promotion. 2. ADA discipline and retaliation. 3. ADA pay. 4. ADA harassment. FMLA and state contract claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Earlier promotion claims time-barred because he filed suit more than 90 days after receiving right to sue. For non-time barred claims, employee failed to establish that he was qualified for the job (lacked proper attitude) or that there was a vacancy. 2. Written reprimands without other consequences were not adverse employment actions. As for one suspension, employee failed to present genuine issue of material fact about causation or to establish comparable infractions (loading gas from wrong supplier) by non-disabled employees. 3. No evidence that employee was paid less than comparable drivers, employee received regular raises and at least ten employees were paid less than he. 4. Identified incidents (bothering employee while he was on the phone, someone kicked car, was teased once about prosthetic, supervisor visited his home to tell him about suspension) not severe or pervasive.

Hasan v. Foley & Lardner LLP, 552 F.3d 520, 104 FEP 1793 (7th Cir. 2008). Panel: RIPPLE, Coffey, Manion. Claims on Appeal: Title VII termination (race, national origin, religion, color). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Law firm associate of Indian heritage, and Muslim, claims that he was singled out for discharge in the wake of the 9/11 terrorist attacks. Applying the "direct method" of proof, panel finds that the employee presented a genuine issue of material fact about whether race, religion or national origin motivated his termination. Record evidence included "[partners] Simon's and Hagerman's anti-Muslim comments, [department chair] Mason's warning to [managing partner] Jaspan about Mr. Hasan's religion, the suspicious timing of the downturn in his hours and evaluations following September 11, one partner's testimony that Foley fired no other associates for economic reasons and did well financially in 2001 and 2002, the Business Law Department's treatment of its other Muslim associates and Foley's shifting justifications for firing Mr. Hasan." Racially-disparaging comments by putative non-decision makers (here, two law partners) may still be relevant. Partner who said that Muslims should be "kicked out" does not need to be direct supervisor, especially in context of meeting where partner's words incited anti-Muslim and other charged commentary by other partners. That 9/11 comments occurred a year before termination does not render the comment irrelevant, in view of its severity, plus its timing coincided with drastic decline in associate's work. Although e-mail and phone call between partners discussing associate's religion could be evidence of employer paying attention to EEO law, it is at best ambiguous and should be evaluated by fact-finder. Treatment of other Muslims at firm also relevant, and need not be linked to how comparable non-Muslims were treated, which is not essential to the "direct method" of proof. Record also presented genuine issue of material fact about justification for employer's decision to terminate employee, where it changed its reasons in mid-litigation from performance to lack of work, and both reasons were only weakly supported by the record.

King v. City of Madison, 550 F.3d 598, 21 A.D. Cases 608 (7th Cir. 2008). Panel: WOOD, Ripple, Tinder. Claims on Appeal: ADA and Rehabilitation Act failure to accommodate. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee was accommodated as far as CBA allowed; employee lacked right to bump another employee and failed to obtain vacancy outside her unit because she was not the most qualified candidate.

Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 104 FEP 1253 (7th Cir. 2008). Panel: FLAUM, Williams, Sykes. Claims on Appeal: 1. Title VII and § 1981 harassment (national origin). 2. Title VII and § 1981 retaliation. FMLA and tort claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Even assuming that the remarks were numerous enough to be deemed pervasive there was no basis for imputing liability to the employer. Person who recommended discipline had no authority to carry it out (it was subject to investigation by HR), and thus was not "supervisor" for purposes of vicarious liability. Notion that HR was "cat's paw" fails as a matter of law; aggregating supervisors works only when no one supervisor possesses all of the authority. Negligence theory (for co-workers) fails because employer had no timely notice of harassment occurring. Reference in complaint to employee's immigrant status not probative of "national origin." 2. E-mail complaint about harassment due to immigrant status not a protected activity; it is not the same as national origin discrimination. Also, it is doubtful that retaliatory termination is within scope of charge that alleged national origin harassment. The conduct is different in both cases.

Amrhein v. Health Care Service Corp., 546 F.3d 854, 104 FEP 929 (7th Cir. 2008). Panel: BAUER, Wood [ROVNER, dissenting]. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee terminated for placing call to disclose supposedly confidential information to a customer representative and for insubordination related to a meeting about changing policy concerning scheduling days off. That manager said "if [the plaintiff] wanted to choose all of [her] days [off], then [she] should not have complained [about discrimination] in the first place," and that the plaintiff had "open[ed] up a can of worms" was not direct proof of retaliation. No genuine issue of material fact about Title VII retaliation. Several-month delay between the employee's Thereat to file an EEOC charge and her termination (deemed to begin with the December 2004 Thereat to file a discrimination complaint) vitiated causation. Balance of circumstantial evidence insufficient to warrant an inference of retaliation, because she supposedly could not identify any comparable employees, i.e., with the same history of violations of work rules.

Chaudhry v. Nucor Steel-Indiana, 546 F.3d 832, 104 FEP 848 (7th Cir. 2008). Panel: WILLIAMS, Bauer, Flaum. Claims on Appeal: 1. Title VII compensation (race, national origin, religion). 2. Title VII discrimination (race, national origin, religion). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff].  Grounds: 1. After Ledbetter, claim that employee was denied raise in 2003 was time-barred. 2. Claim that employee was denied opportunities to visit customers, a prerequisite to obtaining raises, arose afresh each time he was denied an opportunity, so incidents within the 300-day period were on their face timely. Complaint alleged that denials were adverse because they affected eligibility for raises. Motion to amend to add section 1981 claim remanded.

Tate v. Executive Mgt. Services, 546 F.3d 528, 104 FEP 737 (7th Cir. 2008). Panel: WILLIAMS, Bauer, Posner. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Panel holds as a matter of law that employee engaged in no protected activity when he fought with former supervisor, with whom he had a sexual affair. Though recognizing an apparent split in the circuits about whether resisting harassment is a protected activity, the panel concluded that employee -- by his own testimony -- had not considered the affair, or its backfiring aftermath, to be "sex harassment," but only a personal matter.

EEOC v. Lee's Log Cabin, 546 F.3d 438, 21 A.D. Cases 97 (7th Cir. 2008). Panel: SYKES, Kanne [WILLIAMS, dissenting]. Claims on Appeal: ADA hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: EEOC filed complaint alleging that the defendant failed to hire claimant for restaurant server's job "because it learned that she was HIV positive." By the time the parties briefed summary judgment, though, the EEOC had switched to describing claimant's condition as "AIDS." The district court considered this to be a "gross departure" from the agency's original theory, disregarded the agency's declarations (by Stewart and her attorney) and dismissed the case. Affirming, the panel holds that "[g]iven the symptomatic variances in the different stages of this disease, whether an ADA claimant was HIV-positive or had full-blown AIDS at the time of the alleged discrimination is highly relevant to this foundational aspect of the claim." EEOC had no right to amend pleading at summary judgment stage under FRCP 15(b), which applied to trial, and no abuse of discretion to disregard declarations. In the alternative, summary judgment affirmed on ground that claimant is not a qualified individual because she could not meet the lifting requirement.

Magyar v. St. Joseph Regional Med. Ctr., 544 F.3d 766, 104 FEP 449 (7th Cir. 2008). Panel: WOOD, Williams [POSNER, dissenting]. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff presented genuine issues of material fact about participating in a protected activity, establishing a causal link to the adverse action and the employer's defense that plaintiff's job would have been eliminated anyway. Complaint to second-level supervisor about inadequacy of first-level supervisor's investigation was a protected act; jury could find that the original complaint of harassment and follow-up were protected opposition and part of one continuous process to which plaintiff resorted (second complaint was to ensure that the institution do something about sexual harassment). Jury could find that employee had objective, good faith belief that she was opposing unlawful practice when man old enough to be her father dropped in her lap unasked and whispered in ear "you're beautiful." Uncontested that posting plaintiff's job to fill it with new employee was materially adverse. Genuine issue of material fact about causal link, where jury could find that although act of harassment occurred ten months earlier, clock was restarted when employee made renewed complaint about the slowness of the investigation and she suffered first adverse action nine days later. Jury could find that while second-level supervisor said that she did not object to employee taking complaint to legal, statement was ambiguous and employee testified that supervisor's tone was defensive and accusatory. Employer not entitled to summary judgment on defense that position was eliminated for business reasons; although job restructuring might have occurred, that did not establish as a matter of law that the plaintiff's position would have been eliminated, when it would have occurred, or that she would have been blacklisted from applying for anything else.

Germano v. Intl Profit Assoc., 544 F.3d 766, 104 FEP 449 (7th Cir. 2008). Panel: WOOD, Bauer, Williams. Claims on Appeal: ADA hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Evidence of telecommunications relay service (TRS) phone call, assisted by a third party (termed a "CA") erroneously excluded under FRE 801(d)(2)(D). Panel analogizes such communications to the use of interpreters. Employee presented genuine issue of material fact regarding prima facie burden-shifting case. Genuine issue of material fact that employee was qualified (had education background, employer originally extended interview, no evidence that relevant work experience was a factor in hiring). Also evidence of circumstances establishing that disability was determining factor in failure to hire, because of suspicious timing of withdrawal of interview (immediately after it discovered that applicant was deaf), and shifting explanations. Manager replied, in response to the applicant's inquiry about whether it was not hiring him because of his deafness, that Honestly, the decision makers did discuss the topic of your hearing, but felt this was an obstacle that was not insurmountable. Simply stated, other candidates [sic.] experience better fit the needs of our clients."

Davis v. Indiana State Police, 541 F.3d 760, 104 FEP 347 (7th Cir. 2008). Panel: EASTERBROOK, Kanne, Wood. Claims on Appeal: ADEA hiring. Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: State trooper who left the force at age 42 and tried to return two months later, only to have the department bar his return because of his age (the maximum hire-age under state policy was age 40). Complaint was dismissed for failure to state a claim because the district court believed that the decision was entirely subsumed by the law-enforcement exemption under 29 U.S.C. § 623(j)(2), that decisions "pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter" are beyond the ADEA. Panel reverses, holding that although age-40 cut-off policy was "bona fide," in the sense that it was the "real rule" (even if its application was harsh or irrational), former trooper may pursue theory that the failure to rehire him was not "pursuant to a . . . . plan" at all (because relevant section of code may have conferred discretion on superintendent and board), and therefore not exempt under this section. Trooper not required to anticipate this affirmative defense in complaint.

Delarama v. Ill. Dep't of Human Services, 541 F.3d 681, 104 FEP 339 (7th Cir. 2008). Panel: CUDAHY, Posner, Rovner. Claims on Appeal: Title VII discrimination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Entry of absences in employee record as "unauthorized" not an adverse action, having no effect on terms and conditions of employment.

Argyropoulos v. City of Alton, 539 F.3d 724, 104 FEP 248 (7th Cir. 2008). Panel: TINDER, Ripple, Rovner. Claims on Appeal: Title VII retaliation. § 1983 claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Secret tape-recording of conference during harassment investigation, in violation of state eavesdropping law, was not a "protected activity" for purposes of retaliation section and was legitimate reason for employer to terminate the employee. Thus, city's admission that the tape recording motivated the employee's termination was not "direct" evidence of retaliation. Using indirect method, employee did not show that she was working to employer's legitimate expectations (intense criticisms of her performance) and could not point to comparable employee who engaged in similar misconduct (surreptitiously recording her superiors. Moreover, employer's justification for employee's arrest and termination (the tape recording) not shown to be pretextual, where "common sense" suggests that disclosure of the tape-recording activity is what lead to the adverse actions. Although employee might have had a meritorious defense to the tape-recording (i.e., where person believes that another party to the conversation is about to commit or has committed a criminal offense against the person), that does not mean that he actions were not subject to prosecution.

Lucas v. PyraMax Bank, FSB, 539 F.3d 661, 104 FEP 131 (7th Cir. 2008). Panel: ROVNER, Easterbrook, Ripple. Claims on Appeal: 1. Title VII termination (sex). 2. Title VII retaliation. FMLA and ERISA claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No evidence that employee met the employer's legitimate expectations (employee was considered unapproachable, unproductive and incapable of answering questions for staff). 2. Disciplinary record that lead to termination was already manifest before employee complained about sex discrimination, therefore no causation.

Henry v. Milwaukee County, 539 F.3d 573, 104 FEP 140 (7th Cir. 2008). Panel: RIPPLE, Rovner [EASTERBROOK, concurring]. Claims on Appeal: 1. Title VII shift assignment. 2. Title VII harassment/retaliation. Disposition Below: 1. Judgment after a bench trial [defendant]. 2. Judgment after a bench trial [defendant]. Outcome on Appeal: 1. Reversed and rendered for plaintiffs [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. County failed to establish BFOQ defense as a matter of law in support of new shift policy that required same-sex guards for all shifts juvenile detainment facility , which meant that female guards had far fewer opportunities to work the night shift. Employer, under BFOQ, obliged to present objective evidence that gender-specific policy was valid, i.e., that essence of business would otherwise be undermined. Despite that correctional officials are ordinarily credited with substantial deference in fashioning personnel policies, in this case the county did not show that policy was product of reasoned decision-making process. None of the rationales advanced by county established that same-sex night-shift policy was reasonably necessary to advance correctional goals (privacy of inmates, juveniles' safety and security, rehabilitation/mentoring). Each of the justifications lacked hard data in support, were based entirely on the judgment of the director, or could be met by other improvements in the facility that the county never studied or considered (thus, county did not establish that same-sex policy was "reasonably necessary" compared to alternatives).2. Events were not sufficiently severe to constitute adverse action or hostile work environment (women told not to wear sweaters, door slamming, missing/mutilated time cards, early morning phone calls and unfavorable shifts). Also no causal link between this behavior and complaints of sex discrimination.

Tyson v. Gannett Inc., 538 F.3d 781, 104 FEP 12 (7th Cir. 2008). Panel: COFFEY, Bauer, Rovner. Claims on Appeal: Title VII and §1981 forced leave (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee with lifting restriction - who was forced to take five-month leave - was unable to establish that white employee who was allowed to work with same restriction was similarly situated. White employee had greater seniority and, under collective bargaining agreement, was able to select job functions that allowed him to work within his restrictions.

Hall v. Forest River, Inc., 536 F.3d 615, 103 FEP 1547 (7th Cir. 2008). Panel: MANION, Bauer, Flaum. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to present sufficient evidence of causation for denial of promotion. Evidence was that plaintiff had longer tenure in job than successful candidate, but tenure was not shown to be superior qualification. Employee also admitted at trial that successful candidate was not less qualified, though it is not required that the employee be better qualified to succeed on retaliation claim. Temporal connection not established, where promotion decisions were already in the pipes before employee engaged in protected activity. Supervisor's questions about whether plaintiff intended to support other employees' claims of harassment not probative, where there is nothing questionable about manager asking about details of claimed harassment. Off-site encounter with another manager who asked about allegations of harassment not probative because he was no involved in decision. No contradiction between employer's letter to EEOC and discovery responses.

Caskey v. Cologate-Palmolive Co., 535 F.3d 585, 103 FEP 1441 (7th Cir. 2008). Panel: BAUER, Ripple, Williams. Claims on Appeal:  1. Title VII termination (sex). 2. Title VII retaliation. FMLA and state law claims (not discussed here). Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds:1. Plaintiff, disciplined for involvement in defective run of pet food, failed to make out prima facie case where men who worked on the same evening held different jobs or had different supervisors. Employee also failed to establish that proffered reason (unsafe behavior, defective product) was pretext. 2. Vague "pattern" of termination of other women terminated for complaining about harassment not "direct" proof of claim. By indirect evidence, no proof of similarly situated individual who was treated better.

Faas v. Sears, Roebuck & Co., 532 F.3d 633, 103 FEP 1241 (7th Cir. 2008). Panel:  KANNE, Flaum, Tinder. Claims on Appeal:  ADEA termination. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to present genuine issue of material fact that younger store managers with a "comparable set of failings" were treated relatively better. Plaintiff had extensive record of poor management. Out of the dozen managers in region, two older managers topped the list; of the four worst, one (who was not significantly older) was not disciplined because he had been at the store for less than a year. Destruction of "Leadership Overviews" said to include ages was not worthy of adverse inference; judge was within discretion to conclude that there was no evidence of bad faith.

Hall v. Nalco Co., 534 F.3d 644, 103 FEP 1345 (7th Cir. 2008). Panel:  SYKES, Ripple, Rovner. Claims on Appeal:  Title VII/PDA termination. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Secretary who took off time from work for in vitro fertilization (IVF) treatments lost her job in an office consolidation. Summary judgment record reflected that the decision maker took the IVF treatment directly into account in making the decision, stating termination "was in [employee's] best interest due to [her] health condition," she had "missed a lot of work due to health," and was recorded in notes as "absenteeism - infertility treatments." District court erred in analyzing that because infertility is a gender-neutral condition, it could not serve as the basis for a Title VII sex discrimination claim. Under PDA, Congress has defined adverse actions motivated by pregnancy and related conditions as "sex" discrimination, including child-bearing capacity. IVF treatments are given only to women. Contrary to the district court's conclusion, "Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity."

Petts v. Rockledge Furniture LLC, 534 F.3d 715, 103 FEP 1348 (7th Cir. 2008). Panel:  TINDER, Ripple, Sykes. Claims on Appeal:  Title VII termination (sex). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No direct evidence of sex discrimination where (1) employee points to remark about employee "acting like a man" that was made one year prior and unconnected to termination; (2) nothing inherently discriminatory about single reference to employee as "mother" of the store; (3) conclusory and non-specific allegations about remarks alleged to have been made by managers; (4) undated sexist remarks made well before termination.; (5) doubts about economic justification for reduction. Under indirect method, question presented was what kind of proof was required for final element. Court applies mini-RIF requirement where her duties were absorbed by others; some duties were absorbed by other women. Alternatively, employee loses because employer had valid, non-discriminatory reason - cost-saving measure, where addition al position that was saved from elimination was occupied by more experienced male. No shifting, inconsistent reasons in record.

Mobley v. Allstate Ins. Co., 531 F.3d 539, 20 A.D. Cases 1349 (7th Cir. 2008). Panel:  FLAUM, Easterbrook [WOOD, dissenting in part] . Claims on Appeal: 1. ADA reasonable accommodation. 2. ADA termination. 3. ADA retaliation. Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Employee with essential tremor and nocturnal myoclonus narcolepsy had difficulty staying awake and as accommodation was given private space and limited assignments (working on injury files) to help with focus. Plaintiff was qualified individual during time she was assigned to private room and scored "meets expectations." Need to prove interactive process mooted by fac that employee received accommodation. Employer not required to provide all requested accommodations (such as doctor's recommendation of a private room). Several requested accommodation not shown to be effective remedy for her limitations. 2. Fails prima facie test where she did not show she was meeting employer's reasonable expectations at the end of her employment where her ratings in performance evaluations declined. 3. No causal connection between requested further accommodations and being assigned out of private room, where months separated the two events.

Hancock v. Potter, 531 F.3d 474, 103 FEP 1162 (7th Cir. 2008). Panel: FLAUM, Manion ,Tinder. Claims on Appeal: 1. Title VII discrimination (sex). 2. Rehabilitation Act discrimination. 3. Title VII retaliation. 4. Title VII and Rehabilitation Act harassment. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant] . Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Summary judgment affirmed based on absence of adverse employment actions (other than general hostility and reduced work assignments, due to lack of work within medical restrictions) and lack of comparables.2. Work-related back injury that temporarily limited her ability to perform certain job duties and short-term absences not a disability. Plaintiff also points to no comparables.3. No inference of retaliation where employee drew negative performance evaluations from same supervisor before and after 1999 protected activity. Prior 1998 grievance was not protected activity; filed this grievance because her supervisor was "disrespectful towards her." Also, plaintiff did not identify a similarly situated non-complaining employee.4. Claim was not in complaint and not presented until summary judgment, therefore forfeited.

Bellino v. Peters, 530 F.3d 543, 20 A.D. Cases 1315 (7th Cir. 2008). Panel: FLAUM, Wood, Evans. Claims on Appeal: 1. Rehabilitation Act reasonable accommodation. 2. Rehabilitation Act retaliation. 3. Rehabilitation Act harassment. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Where employee rejected the accommodation offered (to transfer to a different position that allowed more sitting), claim fails as a matter of law, where employee admitted in deposition that the transfer would have been a reasonable accommodation.2. Plaintiff cannot establish his prima facie case because he has not pointed to a single similarly situated individual. The only actual name offered by employee was co-worker, who was given administrative duties when she had requested them. Record shows that the agency gave her these duties despite the fact that she had filed EEO complaints against it.3. Combining substantive claim of retaliation with miscalculation of pay and refusal to assign to administrative duties does not constitute harassment.

Lewis v. City of Chicago, 528 F.3d 488, 103 FEP 705 (7th Cir. 2008). Panel: POSNER, Easterbrook, Bauer. Claim on Appeal: Title VII disparate treatment hiring (race). Disposition Below: Judgment following a bench trial [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Challenge to use of written test for hiring should have been filed within 300 days of learning the test results (in which many individuals were classified as "well qualified" and blacks were disproportionally rated only as "qualified"), not when hires were actually announced. Discovery rule does not apply. Discrimination was complete when tests were scored, and no later than when mayor announced that the results were "disappointing" from the perspective of improving diversity. Application of accrual rule justified by intervening neutral event (announcement of test results). Continuing violation doctrine does not apply, because there is no accumulation of acts that blossoms into a wrongful injury. No equitable tolling because validation of test by expert (and delay in responding to request for report) did not obscure fact that test results disproportionately disfavored blacks. Unavailability of evidence about an employer's possible defenses does not support tolling.

Tamayo v. Blagojevich, 526 F.3d 1074, 103 FEP 847 (7th Cir. 2008). Panel: RIPPLE, Posner, Tinder. Claims on Appeal: Title VII, EPA and § 1983 pay (sex) and retaliation. First Amendment claim (not discussed here). Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed in part [plaintiff]. Grounds: Staffer to Illinois Gaming Board (IGB) sued Board, Ilinois Dep't of Revenue (IDOR), and individual defendants. Employee sufficiently alleged sex discrimination in pay and did not plead herself out of court. In light of Bell Atlantic v. Twombly, employee was required to establish plausible basis for claim. for discrimination claims, notice pleading requires allegations that employer instituted specified adverse action against plaintiff on the basis of her sex. Against that standard, district court erred in dismissing case. Complaint alleged that she was fired both for sex discrimination and because she was not cooperating with governor's attempts to control an independent gaming board. Employer has enough notice about nature of claim; gender is alleged at least a motivation factor. Legal inconsistency between First Amendment motive and gender motive is permitted. Issue about whether IDOR was "employer" (because it had control over IGB personnel decisions, particularly compensation) was likewise adequately alleged. Under EPA, employee may have multiple employers. IDOR alleged to have exercised control over IGB budget, which was relevant to employee's pay discrimination claim (because IDOR controlled salary, which was challenged adverse employment action). IGB was properly dismissed as Title VII defendant because it was neither named in the EEOC charge, nor was it alleged to have had adequate notice. Individual defendants alleged to have violated clearly established equal protection right against sex discrimination.

Filar v. Board of Educ. of City of Chicago, 526 F.3d 1054, 103 FEP 729, 20 A.D. Cases 1100 (7th Cir. 2008). Panel: FLAUM, Rovner, Sykes. Claims on Appeal: 1. ADEA reassignment. 2. ADA reasonable accommodation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Bilingual Polish-language instructor at age 69 was replaced by younger, tenure-track instructors at school and required to accept daily substitute assignments. Under indirect method of proof, Threshold argument presented about whether the two younger teachers (ages 39, 42) could be regarded as "comparables" for purposes of the prima facie case by a "common sense inquiry." The district court had been persuaded that because the two teachers were tenure-track, they were materially different from plaintiff and were thus not valid comparables. But as the record revealed, the different categories (with their increasing degrees of job security) themselves were manipulable by the principal. Even though younger employees were regarded as having greater seniority, jury could find that they were placed in senior positions specifically to deprive plaintiff of advancement. Timing of reclassification was possibly motivated by knowledge that school was losing a board-funded position. Employee was qualified but not advanced to tenure-track positions at same time that younger teachers were advanced. school board also argued that principal, as the "same actor" who hired employee at age 62, was unlikely to victimize her because of her age. But the panel responded that such an "inference" violates the premise of summary judgment that the record be construed in the light most favorable to the non-movant. 2. Relief that would have allowed plaintiff (who had arthritic hip) preferential treatment to school within a close walk from public transportation (or assign to one location) would have violated CBA and would have been unreasonable because it would have limited employee to just four schools for reassignment.

Dargis v. Sheahan, 526 F.3d 981, 20 A.D. Cases 998 (7th Cir. 2008). Panel: MANION, Bauer, Williams. Claims on Appeal: ADA failure to reinstate. Due process and state law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Correctional officer who had stroke and returned with restrictions (including no physical contact with prisoners) was unable to perform essential functions of job, as inmate contact is compulsory duty for most positions at jail and employees must be able to rotate among different positions, especially in an emergency situation. Although other officers were placed on duty in position where they would have no inmate contact, there was no record evidence that comparables had to avoid all inmate contact (as did plaintiff). Although plaintiff initiated interactive process, his disabilities were so severe that no reasonable accommodation was possible.

Miller v. American Airlines, Inc., 525 F.3d 520, 103 FEP 268 (7th Cir. 2008). Panel: WILLIAMS, Posner, Wood. Claims on Appeal: ADEA job assignment. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Claim that flight engineers, whose jobs were eliminated were entitled to positions with comparable pay under collective bargaining agreement after normal retirement age of 65 was subject to arbitration under Railway Labor Act. Construction of CBA by arbitrator under RLA upheld. Plaintiffs' claim was dependent upon the phrase "normal flight engineer retirement date" in contract, which fell into purview of grievance and arbitration procedure. Arbitrator's interpretation of this phrase to mean that plaintiffs were entitled to flight engineer pay only until the normal flight engineer retirement date and his subsequent conclusion that such pay was not required to continue following this date vitiated ADEA claims. On facial challenge to CBA, that employees were denied a benefit available to employees under age 65, court found that allegation was not included in charge (therefore not exhausted) and was inconsistent with the plaintiffs' allegations that defendant failed to do something that contract required.

Ellis v. United Parcel Service, Inc., 523 F.3d 823, 103 FEP 129 (7th Cir. 2008). Panel: EVANS, Wood, Bauer. Claims on Appeal: Title VII and §1981 termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Manager fired for violating anti-fraternization policy by marrying hourly employee does not state a claim for race discrimination. Although manager was black and hourly employee was white, there was no evidence that interracial relationship was motivating factor for termination. Some who made dubious remarks about the relationship, with racial overtones, were not in chain of decision makers. While other employees were not fired for same offense (they were given choice to resign), no other evidence indicated that employees involved in same-race fraternization got better treatment under the same manager.

Williams v. Airborne Express, Inc., 521 F.3d 765, 103 FEP 195 (7th Cir. 2008). Panel: KANNE, Cudahy, Evans. Claims on Appeal: Title VII termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee fired for starting fight with manager failed to prove that he was meeting employer's legitimate expectations or to identify similarly-situated employee outside of protected group, where he was fired for gross insubordination (tried to pick fight after termination and failed to produce identification on demand) and had already (in past year) been discipline twice for insubordination. He therefore could not make out prima facie case.

Garg v. Potter, 521 F.3d 731, 20A.D. Cases 705 (7th Cir. 2008). Panel: KANNE, Bauer, Williams. Claims on Appeal: Rehabilitation Act termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee could not make out prima facie case, where employee with allergies failed to show that she performed essential functions of job with accommodation (being moved to a different shift), where employee continued to miss work without leave for months and failed to appear at medical examination when demanded.

Maclin v. SBC Ameritech, 520 F.3d 781, 102 FEP 1839, 20 A.D. Cases 712 (7th Cir. 2008). Panel: RIPPLE, Sykes, Tinder. Claims on Appeal: Title VII retaliation, denial of promotion. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Not being able to sit for more than two hours at a time not a substantial limitation on the major life activity of sitting. 2. No adverse action in (1) being denied discretionary raise (candidate who was successful achieved much higher ranking); (2) smaller pay raise (claim abandoned on appeal; alternatively, no proof of prima facie case or pretext); or (3) change in title and duties that did not affect responsibilities, pay, benefits or opportunities for advancement.

Abdullahi v. Prada USA, 520 F.3d 710, 102 FEP 1537 (7th Cir. 2008). Panel: POSNER, Flaum, Evans. Claims on Appeal: 1. § 1981 discrimination and retaliation. 2. Title VII retaliation, constructive discharge. Outcome Below: 1. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 2. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. "Iranian" constitutes a "racial" classification for purposes of § 1981, under Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987). 2. District court erred in holding that there could be no claim for post-employment retaliation. Robinson v. Shell Oil Co., 519 U.S. 337 (1997).

Metzger v. Illinois State Police, 519 F.3d 677, 102 FEP 1744 (7th Cir. 2008). Panel: MANION, Ripple, Wood. Claims on Appeal: Title VII retaliation, denial of promotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Argument that bureau chief sabotaged employee’s job audit by outside agency by saying he would never promote her and that her self-evaluation of her duties was “grandiose” was waived on appeal; alternatively, no evidence that these sentiments were communicated to individuals who made final decision on appeal of agency’s denial of reclassification.  Reconsidered decision rested on ample uncontested grounds about employee’s duties. Alternative theory that bureau chief’s communication was by itself an adverse action rejected.  Evaluations without any adverse consequences are not actionable and no evidence that chief’s statement about employee’s self-evaluation was false. Failure to promote claim fails because agency produced legitimate, non-discriminatory reason (employee who received promotion was sworn officer while plaintiff was not). Absence of job description not probative of pretext as there was independent evidence of that requirement. Although employee disputed need to have sworn officer in position, it was within employer’s judgment to require it.

 

 Atanus v. Perry, 520 F.3d 662, 102 FEP 1655 (7th Cir. 2008). Panel:  RIPPLE, Manion, Wood . Claims on Appeal: 1. Title VII and ADEA discipline (race, color, religion, sex, national origin).  2. Title VII harassment (race, color, religion, sex, national origin). 3. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds:  1. Employee with history of quarrelsome behavior received ten-day suspension and letter of instruction for having argument with her supervisor, during which she said that “Christians would not act in this manner,” and “if he were a person of God” he would not have suspended her  No evidence that employees outside of employee’s various claimed protected groups behaved in a similar manner but were treated better; thus employee failed to make out prima facie case.  Alternatively, employee failed to show that reasons for disciplinary actions were pretextual. Letter of instruction not shown to be adverse action because it was merely a caution and had no consequences in her job.  Also individuals who allegedly received less-harsh letters of instruction not shown to be similarly situated.2. Alleged hostile work environment claim rejected where only conduct asserted (be spoken to loudly and unprofessionally at a single meeting) is not severe or pervasive.3.  Record did not reveal that transfer between GS-11 positions was adverse action, in absence of evidence of changes in location, work performed or restriction of opportunities for promotion.

 

Fischer v. Avanade, 519 F.3d 393, 102 FEP 1666 (7th Cir. 2008). Panel: FLAUM, Posner, Rovner . Claims on Appeal: 1. Title VII promotion (sex).  2. Title VII retaliation, constructive discharge. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds:  1. Employee set out history of denial of promotions in 10/03, 5/04 and 10/04 but only last promotion was subject of timely charge.  Employee presented genuine issue of material fact on fourth element of prima facie case, that successful male candidate was comparably qualified (experience, skill level, similar duties).  That male candidate had higher rating in review in previous evaluation period does not disprove that employees were otherwise similarly situated. Employee also presents genuine issue of material fact on pretext. Employer’s reasons included candidates’ present availability, interest in the region, experience managing a major project and overall ability to handle position.  Employee failed to demonstrate that she was clearly more qualified for the position, but such proof is not required. Employee presented sufficient evidence that decision-maker had long ago set male candidate on track for promotion, that same supervisor had previously expressed  reservations about male employee’s performance, that he dismissed concerns of sex bias that plaintiff raised earlier (after which the supervisor criticized her “people skills”), and that others (at supervisor’s suggestion) streamlined male candidate’s path to promotion. Employee’s prior failures to be promoted, though time-barred, were admissible as background evidence. Employer also submitted seven declarations by defense witnesses who had previously been deposed, who gave unaccountably fuller accounts of their reasons for not recommending employee, and failure for employer to have offered such reasons prior to summary judgment was further probative of credibility.2. No evidence that employer’s behavior was severe enough to constitute constructive discharge (an audit, negative performance reviews and compelled transfer).  No evidence that employee faced imminent termination or that transfer manifested dead-end path towards termination

 

Lapka v. Chertoff, 517 F.3d 974, 102 FEP 1253 (7th Cir. 2008). Panel: CUDAHY, Easterbrook, Sykes. Claims on Appeal: 1. Title VII harassment (sex).  2. Title VII retaliation. Privacy Act claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds:  1.  Employee alleged that she was raped during month-long training out-of-town by co-worker, and that upon return to her job, co-worker and his brother started patrolling the halls of her workplace visiting people who they knew.  Claim was timely because some acts of alleged harassment occurred within 45-day window of 29 C.F.R. § 1614.105(a)(1). Employee also established that assault off work grounds but with repercussions at work was  actionable, rape was because of sex and severe, and presence of assailant in workplace exacerbated problem. Summary judgment affirmed on ground that employer too appropriate corrective measures (investigated claim of rape but found it inconclusive; visits by alleged assailant and his brother were monitored and eventually curtailed). Failure to remind co-worker that he was under protective order to avoid plaintiff not significant, as there was no evidence co-worker sought to contact employee and he already knew about protective order.2.  Assignment of more time-consuming cases, adjustment of performance rating from “outstanding” to “excellent,” and move to building across street were not materially adverse.

 

Duncan v. Fleetwood Motor Homes of Indiana, Inc., 518 F.3d 486, 102 FEP 1249 (7th Cir. 2008). Panel: Per Curiam (Bauer, Kanne, Rovner). Claims on Appeal:  ADEA demotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds:  Summary judgment erroneously entered where (1) employer conceded that employee made out prima facie case of age discrimination, including that he was meeting its legitimate expectations when he was removed from his job (material handler); (2) that he was in fact performing all of the functions of job;  and (3) employer presented a “legitimate, non-discriminatory” reason for demotion (that employee could not pass lifting requirements for material handler position) that it acknowledged later in the litigation was false, hence not meeting its burden of production under indirect method of proof.  Alternatively, evidence that he was able to perform job without restrictions and that employer was aware of this fact when it removed him from his job makes out genuine issue of material fact concerning pretext.  In addition, employee presented evidence of comment from production manager that older workers were costing the company a lot of money.  Employer’s argument that job description with lifting requirements was prepared by outside consultant, immunizing employer from discriminatory motive invalid; there was no foundation that consultant actually prepared document or ever investigated employee’s work duties. 

 

DeWitt v. Proctor Hospital, 517 F.3d 944, 102 FEP 1199 (7th Cir. 2008). Panel: EVANS, Cudahy [POSNER, concurring]. Claims on Appeal:  1. Title VII termination (sex).  2. ADEA termination. 3. ADA association discrimination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Reversed [defendant]. Grounds:  1.  Alleged male comparable who had racked up medical expenses under self-insured plan but was not fired only ran up $4114 in bills, in contrast to $173,712 for plaintiff.2. No evidence that she was replaced in job by substantially younger employee; replacement was in fact 10 years younger. 3.  Claim under 42 U.S.C. § 12112(b)(4) that employee was terminated because her “association” with  spouse -- who incurred terrific medical expenses fighting prostate cancer and Threatened to reach sel-insured cap of $250,000 -- could be proved by direct method.  Employee’s supervisor regularly pestered employee about the medical bills and suggested hospice placement as a far cheaper “alternative.”  That other employees also incurred high expenses was not determinative of issue, where spouses expenses were expected to continue to grow.  Although employer would have continued to be responsible for expenses under COBRA coverage, that would end after 18 months. Fact that it continued to offer benefits even during period when employee reported part-time did not establish that employee would have willingly abandoned benefits.

 

Tubergen v. St. Vincent Hospital & Health Care Center, Inc., 517 F.3d 470, 102 FEP 1261 (7th Cir. 2008). Panel: FLAUM, Kanne, Rovner. Claims on Appeal:  ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds:  Physician laid off in reduction in force did not establish claim by direct method where one executive called for eliminating the “old guard,” where remark in context refers to incumbent employees rather than older employees.  Although younger administrators were considered automatically for employment in new organization, that was also true of plaintiff, who decided not to apply. Consequences for executive directors were not similarly situated and therefore not probative.  Many younger directors were also terminated in same RIF.  Hence, employee did not present prima facie case; alternatively, employers plan to eliminate old structure and consolidate functions for cost-saving and efficiency was legitimate, non-discriminatory reason and not pretextual. 

 

Warren v. Solo Cup Co., 516 F.3d 627, 102 FEP 1265 (7th Cir. 2008). Panel: SYKES, Kanne [ROVNER, dissenting]. Claims on Appeal:  1. Equal Pay Act. 2. Title VII compensation (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds:  1.  Assuming that employee satisfied prima facie burden, employer made out affirmative defense of factors other than sex (male was found more skilled at computers, and had bachelor’s and masters’ degrees; employee conceded that she was “mediocre” with computers and was a high schooll graduate).2.  Plaintiff failed to make out prima facie case because she was not similarly situated to male employee in experience with computers and education.  That another woman was denied same job taken by same male employee who had computer training not probative of wage disparity. 

 

Benders v. Bellows & Bellows, 515 F.3d 757, 102 FEP 1072 (7th Cir. 2008). Panel: EVANS, Easterbrook, Kanne. Claims on Appeal: 1. Title VII retaliation. 2. Title VII harassment (sex). ERISA, state law tort claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff] 2. Affirmed [defendant]. Grounds: 1. Genuine issue of material fact about the timing of the decision to terminate employee, to support inference that protected activity (filing charge) caused the termination. Although partner in firm (with whom employee carried on a five-year affair) told employee that she should start looking for another job in May 2003, she was only fired in April 2004, two months after filing her charge. Contested issue of fact whether new employee, who assumed some of the plaintiff's duties as office administrator, actually replaced her prior to April 2004. EEOC questionnaire in January 2004 not inconsistent; she did not admit that she was terminated at that time. Absence of formal process or clear evidence of a decision to terminate makes issue one for the jury. Employee also presented direct or circumstantial evidence of causation (was told 3 days after filing charge that she would not get severance because of her "awful EEOC charge" and she was fired five days later. Also there was evidence that reasons given for termination (poor performance, insubordination) were pretextual: employee presented testimony disputed specifics of allegations, that partner was the cause of difficult working conditions, that alleged alternation never occurred. 2. Negative repercussions and discomfort from consensual affair and aftermath not actionable as harassment.

Gates v. Caterpillar, Inc., 513 F.3d 680, 102 FEP 609 (7th Cir. 2008). Panel: ROVNER, Flaum, Evans. Claims on Appeal: 1. Title VII retaliation. 2. Title VII termination (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant] 2. Affirmed [defendant]. Grounds: 1. Employee cannot establish claim by direct method. Relationship between alleged protected activity (complaints about her job position relative to male employees) and suspension and termination too tenuous. At time of termination, co-workers were complaining about her, supervisors believed she was violating electronics-use policy and she was failing to make work goals. Regarding protected activities, series of complaints that were only weakly gender related may not have constituted protected activity. Employee was at fault for having omitted mention of gender-related comment during deposition; although introduction of remark in affidavit did not contradict deposition, to allow it belatedly could have same effect on litigation as allowing contradictory remark. "Glass ceiling" comments was too ambiguous in context of entire conversation to warrant inference of gender. No prima facie case under indirect method; employee was not meeting employer's legitimate expectations. 2. Evidence that There males were treated more lightly on electronics use violations (unauthorized use of Internet) immaterial, as they reported to a different supervisor, had not been accused of telephone abuse and did not engage in repeat violations after suspension. Alternatively, employee would have been unable to establish pretext.

Nichols v. Southern Illinois University-Edwardsville, 510 F.3d 772, 102 FEP 519 (7th Cir. 2007). Panel: MANION, Flaum, Sykes. Claims on Appeal: 1. Title VII assignment (race). 2. Title VII denial of temporary upgrades to sergeant (race). 3. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Four officers claimed that they were disproportionally assigned to the University's East St. Louis campus because of their race. But assignment to the East St. Louis campus instead of Edwardsville did not constitute a materially adverse employment action. Plaintiffs argued that they preferred the work at the Edwardsville campus, that claim could not be squared with evidence that There out of the officers requests assignment o that campus and that there was no evidence that their assignment to the East St. Louis campus impacted their salary, perks, or opportunities for future advancement. Moreover, there was no evidence of a racial motive. Statement by chief that it had been suggested that the school assign more black officers to predominantly black campus fails to constitute direct evidence of the Department's alleged discriminatory motive because the Department's command staff, and ultimately Chief Harrison, are solely responsible for assigning Department officers to the two campuses, and suggestion to assign by race was never adopted. Although There of the plaintiffs offered statistical proof that they were assigned to East St. Louis more often, this would have been the result of the plaintiffs' own requests for assignment there. 2. There officers claimed that they were denied temporary upgrades to sergeant because of their race. Plaintiffs did not offer evidence other than their own subjective impressions to make out prima facie case that they were equally or more qualified than the two white officers whom Department upgraded to sergeant. 3. There officers claimed that they suffered retaliation for making complaints of racial discrimination. But termination decision was made by Merit Board, based on evidence of misconduct (including making false accusations against other officers), rather than by decision makers who had alleged motive to retaliate. No evidence to support prima facie case that any similarly situated employee made numerous baseless allegations against fellow Department employees and was not terminated by the Merit Board. One officer who complained of being placed on administrative leave with pay during investigation (and written notice he received requiring him to appear at disciplinary hearings held in response to the letter he had sent to the University's president) could not show that such action constituted a materially adverse action.

Simple v. Walgreen Co., 511 F.3d 668, 102 FEP 515 (7th Cir. 2007). Panel: POSNER, Wood, Williams. Claims on Appeal: Title VII/§ 1981 promotion (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in finding no genuine issue of material fact about the employer's intent in not promoting assistant manager to store in Pontiac. Unnecessary to channel facts of record into either direct or indirect method; when a plaintiff in a discrimination case has direct evidence of discrimination as well as the indirect evidence required to make out a prima facie case under McDonnell Douglas he does not have to show that either approach, taken in isolation from the other, makes out a prima facie case - he can combine them." Record established that employee had four years' experience as assistant manager, successful white candidate had only two years, and employer furnished inconsistent reasons for decision. Manager who recommended plaintiff's promotion had also testified "I may have stated that Pontiac was possibly not ready to have a black manager. It is well known in this area that some of the smaller, outlying towns have some very racist tendencies, and I was simply trying to make [the plaintiff] feel better because my feeling was he may not have been very happy working there." Plaintiff also testified that the same manager told him that "race was a factor" in the decision. Statements were admissions under FRE 801(d)(2)(D) because manager was consulted on promotion.

Bright v. Colgate-Palmolive, 510 F.3d 766, 102 FEP 529 (7th Cir. 2007). Panel: EASTERBROOK, Flaum, Williams. Claims on Appeal: Title VII harassment (sex). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in instructing jury that it could not consider anything that happened to plaintiff before March 29, 2002, approximately 300 days before she filed her charge (when the company disciplined 11 men for possessing pornography at the plant). Court holds that under National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). it is "inappropriate to draw lines by time. . . or by the particular method that the men used to make working conditions worse for the women than for themselves. So it is not possible to rule out reliance on a particular kind of evidence (such as the pornographic pictures) or a particular time during which the hostile environment was manifest." One defendant, Colgate-Palmolive, dismissed because as a parent corporation it was not liable for subsidiary's violation.

Peirick v. Indiana University-Purdue University Indianapolis Athletics Dept., 510 F.3d 681, 102 FEP 353 (7th Cir. 2007). Panel: WILLIAMS, Flaum, Manion. Claims on Appeal: 1. Title VII termination. 2. ADEA termination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds:1. Female, 53-year-old tennis coach was terminated and replaced by male tennis coach's 23-year-old sister, allegedly for unprofessional conduct (unsafe driving, abusive language, leaving student behind on a road trip, allegedly pitting team members against administration in spat about the use of a tennis facility). Using the indirect method, plaintiff presented a genuine issue of material fact both on the prima facie element of identifying similarly situated men who were treated better, and the issue of pretext. Employee was able to identify There male sports coaches as valid comparators. Although plaintiff was an hourly employee, and two of her comparators were appointed salaried employees, comparison was valid where there was evidence in the record that the employer itself disregarded those designation when it came to imposing progressive discipline if the employee was considered "valuable" and there was misunderstanding among school's witnesses about what those designations meant. The There males all received progressive discipline for performance issues; plaintiff did not. The infractions of at least two of the male coaches were sufficiently comparable to make out a prima facie case (alleged verbal abuse of team members; lack of organization and leadership and admission that his students used alcohol on a trip). One was renewed, while the other was allowed to resign. All were sufficiently serious misconduct that fact-finder could hold that they ought to be treated comparably. Regarding pretext, it was undisputed that the plaintiff shined in the majority of expectations (team performance, meeting budget, academic excellence of team members. Jury could disbelieve school's rejoinder that falling short on professional conduct was enough reason not to renew her contract without applying progressive discipline (school gave different reason for termination, "new, different direction" until EEOC charge was filed; delayed responding to complaints; did not warn her; other coaches and several team members contradicted school's account of plaintiff's behavior). 2. ADEA claim barred by Eleventh Amendment; board of trustees of state university is draped in same immunity as the school itself.

Grossman v. South Shore Public school Dist., 507 F.3d 1097, 101 FEP 1815 (7th Cir. 2007). Panel: POSNER, Flaum, Wood. Claims on Appeal: Title VII non-renewal of contract (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Public school guidance counselor whose contract was not renewed was fired not because of her Lutheran religious beliefs, but for her conduct that conflicted with the school's curriculum (throwing out birth control literature, replacing it with literature preaching abstinence, praying with students).

Dorsey v. Morgan Stanley, 507 F.3d 624, 101 FEP 1805 (7th Cir. 2007). Panel: FLAUM, Ripple, Wood. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to present genuine issue of material fact about causation, using direct method, by proving that staff complaints about her performance as branch manager occurred within days of plaintiff complaining to New York about alleged sex harassment by her direct supervisor, where employee failed to link the supervisor to the complaints.

EEOC v. V&J Foods, Inc., 507 F.3d 575, 101 FEP 1676 (7th Cir. 2007). Panel: POSNER, Flaum, Williams. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. District court erred in finding that employer, a fast-food franchise operator, proved Faragher/Ellerth defense as a matter of law. Jury could find that mechanism was not reasonably calculated to allow ordinary teen girl (such as plaintiff) to complain about harassment. Employment circumstances included consideration of special known vulnerabilities of workforce, including age and experience. Complaint procedures pointed to titles of executives that were confusing, phone line did not lead to individual who could help with harassment complaint, complaint in this case would have had to been made to harasser, "comment" line phone number not self-evident method to report harassment. All employer needed to do was set up a single phone line directly to an HR representative. Employer failed to establish that incremental cost of such a system would have been unduly burdensome. 2. Employee was fired after mother went to workplace to complain about the harassment. While pure interloper might not have protection under Title VII opposition clause, use of an agent to press a complaint (such as a lawyer or parent) and consequences resulting from such complaints may be imputed to employee. (Noting split in circuits about whether co-worker advocates are covered under this section.)

Hentry v. Jones, 507 F.3d 558, 101 FEP 1578 (7th Cir. 2007). Panel: WILLIAMS, Easterbook, Kanne. Claims on Appeal: Title VII termination (reverse race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee police officer failed to introduce evidence that he was treated less favorably than similarly-situated officers who were not white. Plaintiff was videotaped assaulting a prisoner, leaked to TV news. Under indirect method, employee failed to make out prima facie case. Other non-white officers who were disciplined but not terminated had denied committing violence and there was no corroboration. Other officers committed lesser offenses (drawing a "smiley face" on a prisoner, failing to report an incident), or were reacting to Thereats, in contrast to plaintiff. Plaintiff had not offered any evidence that the employer's expectations were tailored to race, as the plaintiff's misconduct was more egregious than that of the employees to whom he pointed. Under direct method, no suspicious circumstances between police chief's alleged political ambitions and desire to make example of officer after publicity. Jury's conclusion during earlier suit that the City of Milwaukee and Jones discriminated against seventeen white male police lieutenants on the basis of race or gender when they did not receive promotions to captain not relevant to termination for cause claim.

Coolidge v. Consolidated City of Indianapolis, 505 F.3d 731, 101 FEP 1425 (7th Cir. 2007). Panel: WILLIAMS, Posner, Flaum. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant] 2. Affirmed [defendant]. Grounds: 1. Single exposure to pornography in crime lab, left by former employee and uncovered a year after he left, not severe or pervasive.2. Refusal to promote not retaliatory where successful candidate (but not plaintiff) had experience credentials for job. Termination and reprimands (for removing property from crime lab and failure to perform blood sample test from rape kit exam) constituted adverse actions, but plaintiff could not point to similarly-situated employee who did not complain but was treated better.

Bannon v. University of Chicago, 503 F.3d 623, 101 FEP 1228 (7th Cir. 2007). Panel: WILLIAMS, Evans ,Sykes. Claims on Appeal: 1. Title VII promotion (national origin). 2. Title VII harassment. 3. Title VII constructive discharge (national origin). State law tort claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Judgment on the pleadings [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. While several claims were time-barred, one from September 2002 was not. Nonetheless, two-month gap between application process and promotion was not materially adverse. nine-day delay in transmitting recommendation to promote plaintiff not material.2. Hostile work environment claim fails for lack of proof that employee was subjectively offended by behavior (employee socialized with alleged harasser outside office, called him a "great boss", very lengthy delay in reporting behavior).3. Because hostile work environment claim failed, it could not form behavior egregious enough to support constructive discharge. Also, no evidence that claim was tied to ethnicity in any way.

Adelman-Reyes v. St. Xavier Univ., 500 F.3d 662, 101 FEP 937 (7th Cir. 2007). Panel: SYKES, Easterbrook, Rovner. Claim on Appeal: Title VII denial of tenure (religion). State law tort claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Negative recommendation of one dean, who allegedly described plaintiff as "liberal union-oriented Jew" and complained that plaintiff missed school events because of Jewish holidays washed out by the rest of the review process (multiple levels of independent review). Any inference from two comments insufficient to withstand evidence of independent decision-making process.

Brown v. Ill. Dep't of Nat'l Resources, 499 F.3d 675, 101 BNA 693 (7th Cir. 2007) . Panel: MANION, Easterbrook, Wood. Claims on Appeal: 1. Title VII promotion (race). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Ledbetter caused some claims to be time-barred. On failure to promote, employee failed to present prima facie case because none of the four white employees were comparable (lacked negative evaluations or complaints by clients, had greater experience than plaintiff). Same reasons that made plaintiff not similarly situated also constitute legitimate, non-discriminatory reasons for non-promotions. Employee's positive self-assessment is irrelevant.2. EEOC complaint filed February 2000; negative evaluation April 2000. Employee had already received negative evaluation prior to filing of charge.

Burger v. Int'l Union of Elevator Operators Local No. 2, 498 F.3d 750, 101 FEP 780 (7th Cir. 2007). Panel: KANNE, Posner, Williams. Claims on Appeal: ADEA expulsion. LMRA claim (not discussed here). Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Affirmed on liability, remanded for new trial on damages [plaintiff]. Grounds: District court did not err in denying motion for judgment as a matter of law. Jury could find that union retaliated against the plaintiff for filing EEOC charge complaining of age discrimination in apprentice program. He was denied reduced-fee card at the next opportunity after complaint. Evidence in record included admissions by leadership that they meant to punish him. On remedy, district court entered judgment on inconsistent jury verdict form that awarded twice as much on LMRA claim as ADEA claim (even though both were based on same injury), and either theory contradicted plaintiff's theory of damages. On the other hand, union's theory that damages are inconsistent with the evidence also rejected; award could be supported on theory that employee had to borrow money to buy full-fee card or that he was retaliated against with the purpose of driving him from the union.

Squibb v. Memorial Medical Center, 497 F.3d 775, 19 A.D. Cases 961 (7th Cir. 2007). Panel: RIPPLE, Wood, Evans. Claims on Appeal: 1. ADA termination. 2. ADA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee failed to present genuine issue of material fact that back injury substantially limited her in major life activities of working (did not qualify under "class of jobs," because there were nursing jobs that met her physical limitations); sleeping (generalized assertions unsupported by other evidence); caring for oneself (can perform most personal tasks, though with some difficulty); sitting and walking (needed breaks every 30 minutes); or sexual relations (uncorroborated, and unclear how employer would accommodate such a disability). No liability under "regarded as" category because no evidence that employer belief that she was substantially limited. 2. Eight-month to two-year gap between protected activity and adverse action defeats inference of retaliation. Interim assignment to undesirable position in between does not support inference. Applying indirect method of proof, employee could not locate similarly situated individual treated more favorably who did not file charge and did not show that she was currently meeting employer's reasonable expectations about attendance.

Pantoja v. American NTN Bearing Mfg. Corp., 495 F.3d 840, 101 FEP 235 (7th Cir. 2007). Panel: WOOD, Easterbrook, Williams. Claims on Appeal: 1. Title VII/§ 1981 discrimination (race, national origin). 2. Title VII/§ 1981 retaliation. 3. Title VII/§ 1981 harassment (race, national origin). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. McDonnell Douglas pretext method of proof does not require, in a termination case, proof at the prima facie stage that one or more persons similarly-situated in all pertinent respects were not terminated; it is sufficient that the employer seeks a replacement for the employee. Also, in situation where employer's "legitimate expectations" may be tainted with discrimination, such as when they are applied in a disparate manner, then evidence of such taint substitutes for the "legitimate expectations" prong. Here employee attempted to show that Latinos but not whites were punished for causing spills, but record showed that plaintiff was also fired for not seeking permission to leave worksite. Timecard violations were not comparable. Negative performance evaluation not an adverse employment action. 2. Section 1981 does provide a cause of action for retaliation. Complaints to HR about perceived discrimination constitute protected activities. Termination was certainly an adverse action, while there was a genuine issue of material fact whether job warnings were also adverse actions for purposes of retaliation. Genuine issue of material fact also presented about causation, where there was ambiguity about whether warnings were issued prior to the protected activity. Employee's own testimony about when he began complaining to HR was admissible. Record presented swearing contest between supervisor and employee (and co-worker) on timing of complaints. Evidence that employer had begun to form poor opinion of employee prior to his complaints properly relates to the employer's burden of production of legitimate, non-discriminatory reason. Other evidence supports inference of retaliation (long delays in issuing warnings, that he was warned on spills while management had stopped giving out such warnings, termination decision was made one day after managers learned of EEOC charge being filed. Genuine issue of material fact presented on pretext (shifting reasons for decision). 3. Only a few isolated instances of racial comments not severe or pervasive.

EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 101 FEP 212 (7th Cir. 2007). Panel: CUDAHY, Bauer [FLAUM, concurring]. Claims on Appeal: Title VII retaliation. Disposition Below: Dismissed for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: EEOC's original complaint alleged that employee was fired for filing an EEOC charge claiming "that his employer . . . fired him when he reported a sexual affair between his supervisor and another employee." District court dismissed the complaint without prejudice on the ground that the report was not a protected activity: favoring a subordinate because of a sexual relationship does not violate Title VII. Upon repleading, EEOC alleged that employee "opposed conduct in the workplace that he objectively and reasonably believed in good faith violated Title VII by reporting the conduct to Concentra's Director of Human Resources." Rule 8 and Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), require plaintiffs to plead with enough specificity to give the defendant fair notice of the claim and plausibly suggest that party has a right to relief. Although district court was correct to dismiss first complaint, it could not dismiss second complaint on same ground because it did not allege the paramour theory. Citation to charge did not incorporate its allegations by reference, Fed. R. Civ. P. 10(c). Panel affirmed dismissal of the complaint on the first ground -- that the complaint was too vague. Party "alleging illegal retaliation on account of protected conduct must provide some specific description of that conduct beyond the mere fact that it is protected." The panel found, as did the district court, that "the EEOC's amended complaint fails to provide the notice required by Rule 8(a)(2); it must further specify the 'conduct in the workplace' that Horn reported." Court distinguished between pleading retaliation and discrimination claims; while "[p]eople have reasonably clear ideas of how a racially biased person might behave, and a defendant responding to an allegation of racial bias can anticipate the sort of evidence that may be brought to bear and can investigate the claim (by inquiring if any decision-making employees have a background of making racially insensitive comments and the like). An allegation of retaliation for some unspecified act does not narrow the realm of possibility nearly as much. Further, once a plaintiff alleging illegal discrimination has clarified that it is on the basis of her race, there is no further information that is both easy to provide and of clear critical importance to the claim." Complaint must allege "easily provided, clearly important" facts.

Jennings v. Illinois Dept. of Corrections, 496 F.3d 764, 101 FEP 249 (7th Cir. 2007). Panel: BAUER, Flaum [CUDAHY, concurring]. Claims on Appeal: Title VII suspension (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Mexican-American correctional officer was fired for smuggling and trading cigars with prisoners. Warden and major at prison referred the matter to an "Employee Review Board," which investigated the matter and recommended suspension, and the Illinois Department of Central Management Services (CMS) (a separate state agency) approved the discharge. Although there was evidence that warden and major frequently trafficked in anti-Mexican slurs (complaining about their work ethic, that affirmative action had gotten out of hand, that in the South "they had different ways of handling those types of people," etc.). Such evidence might ordinarily have supported at least an inference that national origin was a motivating factor in the discharge. Summary judgment affirmed on the ground that CMS, not the warden, made the termination decision, "which broke any connection between [superior officers'] improper motivations and the ultimate outcome, absolving IDOC of liability." Warden and major not shown to exercise any influence over decision to suspend employee and against offering last-chance agreement. Alternatively, no evidence of pretext.

South v. Illinois Environmental Protection Agency, 495 F.3d 747, 101 FEP 147 (7th Cir. 2007). Panel: RIPPLE, Evans, Sykes. Claims on Appeal: Title VII retaliation . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to identify similarly-situated persons, in support of prima facie case, who refused to sign medical releases and submit to medical examination.

Lewis v. City of Chicago, 496 F.3d 645, 101 FEP 139 (7th Cir. 2007). Panel: KANNE, Wood, Williams. Claims on Appeal: 1. Title VII/§ 1981 discrimination (sex). 2. Title VII/§ 1981 retaliation. 3.§ 1983 discrimination (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. Employee presented direct evidence that the police department refused to send her to perform relief duty in Washington, DC for IMF conference. Lieutenant - involved in making decision - said "it was going to be a working trip, and he thought it would be dangerous and that [she] would thank him for it later." Statement was admission of party-opponent (FRE 801(d)(2)). Refusal to send "lone female" owing to accommodations, while some officers were allowed to individual rooms, is circumstantial evidence of sex discrimination. Loss of overtime pay and experience working at large event, which could have turned into more opportunities, presents genuine issue of material fact about "adverse employment action." 2. Assignment on dangerous duties beyond the level of treatment previously received presented genuine issue on materially adverse action. Temporal proximity, combined with lieutenant's practice of making assignments over the police radio, evidence of causation. 3. No proof of express or widespread policy to hold city. liable.

Salas v. Wisconsin Dept. of Corrections, 493 F.3d 913, 101 FEP 11 (7th Cir. 2007). Panel: FLAUM, Easterbrook, Ripple. Claims on Appeal: 1. Title VII/§ 1983 termination (national origin). 2. Title VII retaliation. Due process and First Amendment claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Because timeliness of charge is an affirmative defense, district court erred in holding (where in evidence was in dispute) that summary judgment ought to be granted where the employee failed to prove filing of charge in December 2004. Identifying one's self in charge as Hispanic was sufficient to preserve claim for national origin (ancestor's place of origin or physical, cultural or linguistic characteristic of national origin, citing 29 C.F.R. § 1606.1. Although employee was able to identify other employees whose behavior was more egregious who were not fired, employee failed to establish that they were in the same office, so claim failed at prima facie stage. 2. No evidence that employer was aware of employee's participation in EEOC investigation before firing him.

Bernier v. Morningstar, Inc., 495 F.3d 369, 101 FEP 1 (7th Cir. 2007). Panel: WOOD, Easterbrook, Posner. Claims on Appeal: 1. Title VII harassment (same-sex). 2. Title VII retaliation . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No basis for employer liability for co-worker harassment where employee did not report incident of staring to human resources, but only communicated directly with putative harasser by way of an anonymous instant message (and then failed to tell the employer the truth about the IM when confronted about it). 2. Sending anonymous IM not a protected activity.

Huff v. Sheahan, 493 F.3d 893, 100 FEP 1800 (7th Cir. 2007). Panel: RIPPLE, Easterbrook, Manion. Claims on Appeal: Title VII harassment (race, sex). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in instructing jury on co-worker negligence standard of liability, without giving jury alternative to find that her supervisor's harassment culminated in a tangible employment action against her, which would have resulted in strict liability. Record included evidence that supervisor in sheriff's office denied her case leads critical to her career advancement and denied her a transfer. Sheriff's office conferred sufficient authority on supervisors to take tangible actions affecting her employment with the sheriff's office to warrant supervisor instruction. Plaintiff also established prejudice. While jury found against individual § 1983 liability against same officers for harassment, that does not preclude liability against sheriff's office under Title VII, which provides for liability for employer's failure to correct a hostile work environment regardless of intent. Jury was instructed to find intentional sex and race harassment under the § 1983 claims. Thus, jury's verdict on § 1983 did not foreclose possible Title VII liability for the employer.

Hossack v. Floor Covering Assoc. of Joliet, Inc., 492 F.3d 853, 100 FEP 1617 (7th Cir. 2007). Panel: COFFEY, Kanne, Williams. Claims on Appeal: Title VII termination (sex). Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Two co-workers were engaged in extra-marital affair, but only the female co-worker was terminated. Uncontested evidence in record establishes that company did not terminate employees for involvement in extramarital affairs, but terminated female employee when (1) her husband began issuing Thereats that he would commit violence at the worksite (when the affair came to light) and (2) male co-worker was high-performing salesman that the employer did not want to move out of the store. These reasons were not demonstrated to be a pretext for sex discrimination.

Sims-Fingers v. City of Indianapolis, 493 F.3d 768, 100 FEP 1473 (7th Cir. 2007). Panel: POSNER, Easterbrook, Kanne. Claims on Appeal: Equal Pay Act and Title VII pay discrimination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Female park manager accused city of paying male park managers more. Summary judgment affirmed at the prima facie stage because the plaintiff never identified "equal" work. Park facilities are simply too different from one another to present comparable management responsibilities. The closest male manager (Robinson) that the plaintiff could point to managed a park 17 times larger than hers, and which had a pool and generated income. Pay differential between the plaintiff and Robinson less than 2 percent, so no inference could be drawn that her work and his are so far equal that it should be inferred that he was overpaid relative to her. The absence of comparable duties also fatal to the Title VII claim.

Griffin v. Sisters of St. Francis, Inc., 489 F.3d 838, 100 FEP 1416 (7th Cir. 2007). Panel: Per Curiam [Kanne, Wood, Evans]. Claim on Appeal: 1. Title VII/PDA termination (father) 2. Title VII/PDA termination (mother). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. PDA does not protect against discrimination in basis of "reproductive rights," and thus did not cover father who was allegedly fired because his fiancee (both in residence at a farm employer) became pregnant. Act protects against gender discrimination and treats pregnancy as a proxy for gender. Although men may have standing to claim discrimination related to pregnancy (e.g., disparate benefits), associational claim was not "because of sex." 2. Employee was not required to prove that she was pregnant at the time of her termination, and presented a genuine issue of material fact whether employer perceived during the summer of her termination that she was pregnant (second trimester, wearing maternity clothes, another agent of the employer may have known she was pregnant). Although she was not replaced in position, termination might be treated as a reduction-in-force of one. Summary judgment affirmed on ground that employee was employed to work on commercial accounts, this work ended and employee was let go, thus employee did not establish prima facie case. That she was performing general farm work at time was not evidence of pretext.

Perez v. State of Illinois, 488 F.3d 773, 100 FEP 1254 (7th Cir. 2007). Panel: MANION, Posner, Sykes. Claim on Appeal: 1. Title VII termination (race, national origin). 2. Title VII promotion (race, national origin). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Police captain fails to establish prima facie case because he cannot show individual similarly situated to himself. Employee had been fired (later grieved down to a 60-day suspension) for committing sex harassment; only other employee punished under same rule, but plaintiff was higher-ranked officer, and other employee engaged in single, consensual kiss. 2. Promotion denied on test results, which showed other candidate was more qualified. No evidence of pretext. Employee points to no discrimination in the administration of the test, calculation of score, or possible awareness by test-administrator of prior internal affairs investigation of the officer.

Kodl v. Board of Education Dist. 45, No. 06-3306 (7th Cir. June 4, 2007). Panel: BAUER, Easterbrook, Wood. Claim on Appeal: 1. ADEA/Title VII transfer (sex). 2. ADEA/Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. school teacher fails to establish prima facie case because she cannot show individual similarly situated to herself. Although two younger and male employees allegedly committed a comparable infraction (secretly tape-recording co-worker), the co-workers denied the charge (supported by aninvestigation), while the plaintiff admitted the violation. 2. Workplace grievances did not specify discrimination and thus were not a "protected act," and employee failed to present evidence other than temporal proximity to establish causation.

Boumedhi v. Plastag Holdings, LLC, 489 F.3d 781, 100 FEP 1377 (7th Cir. 2007). Panel: FLAUM, Manion, Wood. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII constructive discharge (sex). 3. Title VII discrimination (denial of raise). (sex) 4. Title VII retaliation. 5. Equal Pay Act. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. 5. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. 4. Reversed [plaintiff]. 5. Reversed [plaintiff]. Grounds: 1. District court erred in finding that employee did not present genuine issue of material fact on severe/pervasive harassment. Comments need not be expressly sexual in nature; anti-female remarks also support hostile environment claim. No fewer than 18 sexual or sexist remarks and other behavior (staring at pregnant body, remark that women should only work in "flower shops," etc.) enough to present triable issue of fact. 2. Triable issue of fact about whether same behavior, and employer's repeated failure to respond to complaints, constituted grounds for constructive discharge. Employee need not apprehend physical endangerment to present constructive discharge claim. 3. Denial of raise and underpayment for completed work constitute materially adverse employment actions. Employee established triable issue of fact that she was the only woman (and only employee) not paid for skipping lunch, routinely shorted in her paycheck, and denied a raise. Difference in title ("press operator" v. feeder) not determinative between male an female where they worked at same machine, produced the same output and worked the same shift. Genuine issue of material fact whether employer's explanation was pretext (denial of raise based on review given by alleged harasser; shorting of paycheck because plaintiff did not seek prior approval for hours even though other employees who violated the same policy were paid anyway). 4. Genuine issue of material fact whether performance review, prepared by same individual employee charged with harassment, was retaliatory; events followed very closely in time with first meeting about harassment and employee was warned that she'd be scrubbing floors if she "didn't watch it." Evidence that she was warned during her annual review not to make further complaints. Also, evidence was the shorting of paychecks grew worse after she complained about harassment. 5. Employee presented prima facie case that she was paid $2 less an hour than comparable male employee, and presented genuine issue of material fact regarding performance review (tainted by harassment allegation) and seniority (did not fully cancel out $2 difference).

Williams v. Excel Foundry & Machine, 489 F.3d 309, 19 A.D. Cases 481 (7th Cir. 2007). Panel: WILLIAMS, Posner, Ripple. Claim on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Inability to stand more than 30-40 minutes at a time and inability to balance one leg not substantial limitation in the major life activity of standing.

Ammons-Lewis v. Metropolitan Water Reclamation Dist. of Greater Chicago, 488 F.3d 739, 100 FEP 1407 (7th Cir. 2007). Panel: ROVNER, Bauer, Cudahy. Claim on Appeal: Title VII/§ 1983 harassment (sex). Disposition Below: Judgment following a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No reversible error in judge's decisions during trial: (1) failure to excuse four jurors (and excuse a fifth juror more quickly), because employee waived objection at trial and there was no plain error; (2) admission of photograph of employee with alleged harasser that was not disclosed before trial, where judge determined that city did not intentionally delay production of copy, employee was given ample to time to review its contents, photograph was admissible impeachment evidence because employee denied social relationship with the harasser, and what was depicted was ambiguous; (3) failure of city to disclose full name of one witness in pre-trial order, where the employee had enough information to figure out who the individual was, and argument was waived; and (4) employee did not object to bifurcated form of co-worker/supervisor jury instruction on harassment (FRCP51(d)(2)), and instruction was accurate.

Issacs v. Hill's Pet Nutrition, 485 F.3d 383, 100 FEP 705 (7th Cir. 2007). Panel: EASTERBROOK, Bauer, Williams. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employer contended that the employee did not suffer one single campaign of harassment by co-workers, but two separate events in different parts of the plant (Packaging and Stretchwrap). Breaking up the harassment into separate events leads to a defense that the more recent harassment cannot be linked to the prior events for a continuing violation under Morgan . But court finds that events were related where events occurred under single chain of command. Company's failure to take action after employee complained repeatedly to supervisors and management-level personnel about how the men were treating her presented genuine issue of material fact on due care for liability.

Dillard v. Starcon Int'l Inc., 483 F.3d 502, 100 FEP 824 (7th Cir. 2007). Panel: SYKES, Easterbrook, Kanne. Claims on Appeal: Title VII settlement agreement. Disposition Below: Settlement enforced [defendant]. Outcome for Appeal: Affirmed [defendant]. Grounds: Employee entered into "knowing and voluntary" settlement as governed by federal law. Contract was formed under state law by oral exchange of promises, even though it was not committed to writing and some terms were not agreed to, because disagreements that cropped up later were confined to non-material terms (dispute over at-will status, requirement that he take exam, desire to remain in Chicago area, penalty provision for beach). Nor did evidence that parties continued to negotiate terms after reaching basic agreement render those terms material.

Bombaci v. Journal Community Publishing Group, 482 F.3d 979, 100 FEP 632 (7th Cir. 2007). Panel: FLAUM, Bauer, Williams. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome for Appeal: Reversed [plaintiff]. Grounds: In co-worker harassment case, employee presented genuine issue of material fact regarding negligence by company in dealing with employee's complaints. Court agreed that employee's report to the dispatcher on floor of printing press that she was being harassed did not satisfy employer's policy of reporting to a "supervisor," where dispatcher had no authority to effect terms of employment sufficient to remedy harassment; dispatcher's duties were ministerial (assigning duties to drivers, distributing paychecks, etc.). Also, there was no evidence that direct supervisor was on constructive notice of harassment, where the plant was very loud and supervisor ordinarily sat in his office with the door closed, and there was no evidence that the supervisor was in fact aware of harassment. But employee presented evidence, though contested, that the dispatcher told her that she had passed a complaint along to the supervisor, and that the supervisor's only response was to ask the dispatcher to take care of it. No effort was made to contact alleged victim. Statement may be admissible under FRE801(d)(2) as party-admission.

Barricks v. Eli Lilly & Co., 481 F.3d 556, 100 FEP 526 (7th Cir. 2007). Panel: WILLIAMS, Bauer, Rovner. Claims on Appeal: 1. ADEA compensation. 2. Title VII compensation (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome for Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Record did not disclose the ages of other employees in plaintiff's unit who got raise, hence she failed to make out prima facie case. 2. Although employee was able to locate at least one male who was also deemed a low performer but who received a raise (thus arguably making out prima facie case), employee failed to establish pretext in light of unwritten policy not to award raises of $20 or less, which is all that she would have been entitled to under company's formula for setting raises. She did not establish that policy was a fabrication. Argument that different managers described the raise policy differently did not establish pretext, where there was no fundamental inconsistency in its explanations. Alleged interference with co-worker witness who intended to sign affidavit to support opposition to summary judgment did not show pretext, where affidavit on its face was cumulative of other evidence and would not have made a difference. Allegedly inappropriate behavior by supervisor not relevant to setting of raise.

Yuknis v. First Student, Inc., 481 F.3d 552, 100 FEP 385 (7th Cir. 2007). Panel: POSNER, Easterbrook, Evans. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome for Appeal: Affirmed [defendant]. Grounds: Two incidents of alleged supervisor harassment (story of how manager's teenage daughter saw watched him walk out of the shower naked; suggestive remark about an Avon product called "Sensual Moments") do not constitute hostile work environment. Other behavior (manager allegedly having an affair with a co-worker, use of the term "fat ass," viewing of pornography, wagering, unauthorized sale of Avon product, manager describing that he witnessed his female cat being "raped") was not sex harassment. Although the behavior was offensive to plaintiff, the plaintiff was neither the target of the behavior, nor was she in the "target area" (protected class was vilified collectively). Panel disaffirms use of term "second-hand harassment" to describe latter category. It is not to say that some of the behavior raised by plaintiff could not, under the right context, be relevant depending context.

EEOC v. Schneider Nat'l Inc., 481 F.3d 507, 19 A.D. Cases 100 (7th Cir. 2007). Panel: POSNER, Bauer, Williams. Claims on Appeal: ADA failure to hire. Disposition Below: Summary judgment [defendant]. Outcome for Appeal: Affirmed [defendant]. Grounds: Employee truck driver with neurocardiogenic syncope, a condition which (while treatable) can lead to fainting, was not "regarded as" disabled. Although condition does not disqualify employee from DOT standards, employer had recent prior experience with another driver with the same condition who drove one of the company's trucks off of a bridge and died. This lead company to adopt a "zero tolerance" standard for that condition. Although risk of fainting was relatively small, and employer could not know whether it caused the fatal crash, employer was entitled to make determination of how much risk it was willing to take. Here, company was concerned that a repetition of prior crash could lead to a lawsuit and punitive damages, and the probability of one driver in fleet having this condition and fainting while driving was not insignificant. Employer can set higher safety standard than required by federal law. Risk-averseness is a valid justification for such a safety regulation. Alternatively, company did not regard employee as suffering substantial limitation in "major life activity" of work, because at most to regarded condition as disqualifying employee from one kind of job (driving heavy rigs). Employer had offered "non-driving" jobs; there was no evidence that employer had truck driving positions other than over-the-road commercial jobs. Absence of other vacancies in truck-driving jobs does not imply that employer did not think employee could not have filled other truck- driving position.

Brewer v. Bd. of Trustees of the Univ. of Ill., 479 F.3d 908, 100 FEP 161 (7th Cir. 2007). Panel: CUDAHY, Bauer, Wood. Claims on Appeal: 1. Title VII termination (race). 2. Title VII retaliation. Title VI claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome for Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee was university student fired from work-study program. Skipping over prima facie case (which was probably deficient because employee presented no evidence of similarly situated individual was not black), employer presented legitimate, non-discriminatory reasons for termination (alleged fabrication of parking permit). Comments by program director about race of employee were positive and non-incriminating. Alleged comments by direct supervisor, which were direct slurs, not probative of direct method where manager was not decision-maker and did not exercise "singular influence" over decision to fire student. Failure of manager to offer exonerating evidence (that she allegedly approved of the employee's fabrication, or that it was an honest mistake) but that was too attenuated basis to infer discrimination. Decision-maker, in any case, did not rely on manager's account but performed independent investigation of parking tag incident. Possible influence over adverse action by subordinate not enough to impute Title VII liability. 1. Employee failed to make out prima facie case by finding similarly situated employee who did not complain of racist behavior by manager, and was not subjected to adverse action.

Baptist v. City of Kankakee, 481 F.3d 485, 100 FEP 65 (7th Cir. 2007). Panel: SYKES, Flaum, Kanne. Claims on Appeal: Title VII settlement agreement. Disposition Below: Settlement enforced [defendant]. Outcome for Appeal: Affirmed [defendant]. Grounds: Plaintiffs who entered in settlement agreement on advise of counsel presumed to have entered into knowing and voluntary settlement barring evidence of fraud or duress. That employees suffered misgivings about lawyer collecting $67,000 fee while they received only non-monetary relief not basis for invalidating settlement. Adequacy or propriety of counsel's advice irrelevant to "knowing and voluntary" inquiry. Record showed that counsel discussed settlement in great detail over two days, gave plaintiffs opportunity to give input and details were presented in court with plaintiffs' assent. Agreement was enforceable in spite of claim that employees received no consideration, because employer committed itself to reform of hiring and promotions and to pay their lawyer's fee.

Fane v. Locke Reynolds, LLP, 480 F.3d 534, 100 FEP 6 (7th Cir. 2007). Panel: FLAUM, Manion, Sykes. Claim on Appeal: 1. Title VII/§1981 unequal pay and workload. 2. Title VII/§1981 termination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No quantitative evidence of extra workload by paralegal, or that such extra work as was alleged amounted to "adverse employment action." No evidence that reasons given for starting salary and raises was pretextual (based on prior salaries, experience and performance evaluations). 2. Employee did not make out prima facie case, where she was not meeting legitimate expectations (had confrontational communications with co-workers and was insubordinate to law firm partner) and could not point to white employees similarly situated who were treated better (different jobs, different supervisors, different degree of severity). plaintiff also failed to show that the reasons given for termination were pretextual; no inconsistency in reasons given (rudeness, insubordination, failure to regulate behavior) or in failing to follow progressive discipline (not required by firm policy).

Baylie v. Federal Reserve Bank of Chicago, 476 F.3d 522, 99 BNA 1310 (7th Cir. 2007). Panel : EASTERBROOK, Posner, Wood. Claim on Appeal: Title VII promotion (race, sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Two employees failed to present genuine issue of material fact by relying on statistical report previously prepared for de-certified class action. Such reports tend to be less probative in individual cases, because they fail to establish that the particular employees in the case would have more likely than not obtained the promotion. Employees also failed to identify proper comparable employees who obtained promotions.

Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 99 FEP 1189 (7th Cir. 2007) . Panel: KANNE, Flaum,, Evans. Claim on Appeal: ADEA termination . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Under direct method of proof, inference of discrimination not presented by isolated comments about employee's appearance after a stroke, worry that laying off too many employees over 40 would be a problem, another age-related comment by manager while evaluating an employee and large percentage of persons 40 and over laid off by employer. Statistical evidence lacked adequate context. Plaintiff failed under indirect method to establish prima facie case because employee's job was eliminated and duties reabsorbed.

Jackson v. County of Racine, 474 F.3d 493, 99 FEP 1025 (7th Cir. 2007) . Panel: WOOD, Easterbrook, Ripple. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Court rejects district court's original ground for dismissal, that the supervisor's alleged behavior toward four female employees (in the county Child Support Division) was not severe or pervasive enough to constitute harassment. At least two of the plaintiffs had established that their supervisor, day to day, kissed, grabbed, touched and commented on their appearance. Panel disaffirms suggestion "that a working environment must be 'hellish' before a Title VII suit can succeed. The Supreme Court's decision in Harris [v. Forklift Sys.] establishes that something short of the Ninth Ring may violate the statute . . . We trust that in the future counsel will avoid the use of a single, overwrought word like 'hellish' to describe the workplace and focus on the question whether a protected group is experiencing abuse in the workplace, on account of their protected characteristic, to the detriment of their job performance or advancement." Employer prevails on alternative ground that county had taken reasonable steps to prevent or correct any harassment; once harassment was reported (four months into the offensive behavior), the supervisor suffered a demotion and cut in pay as punishment.

Alexander v. City of Milwaukee, 474 F.3d 437, 99 FEP 961(7th Cir. 2007) . Panel: RIPPLE, Posner, Flaum. Claim on Appeal: Title VII/§ 1981/§ 1983 promotion (reverse race). Disposition Below: Judgment after a jury trial; compensatory awards of $9,500 to $50,000 and a $102,000 punitive damage per plaintiff apportioned equally to each of the six defendants; back and front pay [plaintiffs]. Outcome on Appeal: Affirmed as to liability, reversed as to damages [plaintiffs]. Grounds: The record established that of the 41 persons promoted to captain by the department chief, some women and minorities were promoted more quickly than comparable white males. Although the city had operated under a consent decree governing hiring of officers, there was no decree concerning promotions. On appeal, the panel affirms liability. It denies qualified immunity to the commissioners and chief and made and approved the promotions, finding that the Equal Protection rights of the officers were clearly established under Croson and Adarand at the time of the promotions. Moreover, though the parties allowed the widening diversity in the officer ranks was a compelling interest in law enforcement, the informality and lack of accountability of the chief's promotion system lacked "narrow tailoring." The city was found liable separately, both under Monell (because the Commissioners set city policy) and Title VII (as the employer). Regarding the remedy, panel holds that district court mishandled the "lost chance" doctrine that prevails in the Seventh Circuit in competitive promotion cases such as this one. It was not probable that all of the seventeen would have been elevated, and the jury should have been instructed to determine how the officers would have fared against the qualified pool of promotion candidates as a whole, and apportion the award of damages based on the probability of success. Instead, the judge allowed the jury to award damages based on the erroneous instruction that "percentage chance that each Plaintiff would have been promoted to captain of police . . . keeping in mind other qualified Plaintiffs" on each date of discrimination. This case was not distinguishable from Biondo v. City of Chicago , 382 F.3d 680 (7th Cir. 2004), on ground that employees produced evidence of their qualifications (rather than mere interest) in promotions. Instructional error also caused jury to miscalculate compensatory awards, as employees did not suffer equal losses and must take into account applicability probability of promotions. The district court was also held to err (1) in not allowing overtime and flextime paid to the officers as an offset against back pay, because these sources of income were not available to captains; (2) the calculation of front pay, which is limited to the first unimpeded promotional opportunity; and (3) the failure to appropriately apportion punitive damages among the defendants according to relative fault.

Roney v. Ill. Dep't of Transportation, 474 F.3d 455, 99 FEP 1044 (7th Cir. 2007) . Panel: WILLIAMS, Easterbrook, Flaum. Claim on Appeal: 1. Title VII retaliation. 2. Title VII constructive discharge and harassment (national origin). Disposition Below: 1. Summary judgment [defendant] 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant] 2. Affirmed [defendant]. Grounds: 1. The employee's demotion claim was time-barred under Morgan. Although employee contended that he was not fully cognizant of the retaliatory motivation for the demotion, he had written a letter to his supervisor at the same time stating that he knew about the discrimination. The allegations that were timely-charged were not otherwise materially adverse (being assigned to inspect painting operations, placement on a "performance plan," being denied an "exceptional performance merit raise," being Threatened with termination, two disciplinary actions, denied a state vehicle, report to police about allegedly Threatening letter, alleged denial of unemployment benefits). 2. Behavior was not so intolerable that it amounted to a hostile work environment or constructive discharge.

Yong-Qian Sun v. Board of Trustees, 473 F.3d 799, 99 FEP 897 (7th Cir. 2007) . Panel: FLAUM, Wood, Evans. Claim on Appeal: Title VII denial of tenure. First Amendment claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: The district court -- upon granting a third set of sanctions against defense counsel, for failing to answer discovery -- struck the pleadings of all defendants, defaulted them, and ordered a damages-only trial for the employee. On a motion to vacate the default, though finding no "good cause" to vacate the default, the district court granted the defendants relief owing to the interest in "having cases decided on the merits and . . . that sanctions lesser than default may be appropriate in this case." The Seventh Circuit affirms the order on the alternate ground that the original default itself was an abuse of discretion under Fed. R. Civ. P. 55(a). "Instead of entering a default, punishing the defendants and giving the plaintiff a windfall, the district court should have imposed increased monetary sanctions against the attorneys who had caused the discovery delays." On the merits of the case, the court holds that a racial comment by a single member of the Promotion and Tenure Committee (named Greene) and a track record of promoting only white candidates -- though ordinarily deemed circumstantial of discrimination -- could not be imputed to the defendants. "The numerous levels of review, particularly those conducted by independent and University-wide committees broke any connection between Greene's possible discriminatory motive and the ultimate decision." Under the pretext method of proof. moreover, "the University's proffered reason is nondiscriminatory, as it identifies weaknesses in Sun's dossier related to funding, scholarship, and supervision of graduate students."

Humphries v. CBOCS West, Inc., 474 F.3d 387, 99 FEP 872 (7th Cir. 2007) . Panel: WILLIAMS, Posner [EASTERBROOK, dissenting]. Claims on Appeal: § 1981 retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Court holds that an employee may state a claim for retaliation under 42 U.S.C. § 1981, overruling Hart v. Transit Mgt. of Racine, 426 F.3d 863 (7th Cir. 2005). Court also finds that the district court erred in finding that employee did not meet prima facie burden by establishing existence of a similarly situated employee. Opinion notes that while some circuit opinions made it appear that this requirement is compulsory, the case law generally allows a degree of flexibility at the prima facie stage to determine which employees meet the standard. Restated, the standard is "whether there are sufficient commonalities on the key variables between the plaintiff and the would-be comparator to allow the type of comparison that, taken together with the other prima facie evidence, would allow a jury to reach an inference of discrimination or retaliation." Employee presented genuine issue of material fact that plaintiff and comparator manager, though on different shifts, both committed the same alleged infraction (leaving the safe unlocked). Similar B not identical B conduct was enough. There was also evidence of pretext. Although employer claimed that termination was supported by fact that plaintiff left the safe unlocked, circumstances suggested that the situation was a set-up: the only witnesses was an employee named in the employee's complaints of racial discrimination, that another witness (a coo-worker) observed the witness and manager involved in furtive behavior just prior to the firing indicating that they were "up to something to harm Humphries," that the manager did not conduct an investigation into the veracity of the witness's claim, and the firing occurred a week after the racial discrimination complaint and a day before the plaintiff was supposed to meet with another manager.

Kampmier v. Emeritus Corp., 472 F.3d 930, 99 FEP 755 (7th Cir. 2007) . Panel: FLAUM, Easterbrook, Williams . Claims on Appeal: 1. ADA discrimination, reasonable accommodation and retaliation. 2. Title VII (sex) termination. 3. Title VII retaliation. 4. Title VII (sex) harassment. ERISA and state law claims (not discussed here) . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Reversed [plaintiff]. Grounds: 1. Employee failed to establish genuine issue that her physical impairment (endometriosis) was a disability; no evidence that her condition limited her ability to engage in major life activities. Also no evidence that the employer had a record of her prior surgeries or procedures or that the employer regarded her as disabled. She also failed to identify, under the indirect burden-shifting model, a similarly-situated non-disabled employee treated differently. 2. She likewise failed to identify, under the indirect burden-shifting model, a similarly-situated male employee treated differently. 3. No evidence of retaliation presented where (a) four months separated complaints about supervisor harassment from termination for cause and (b) she failed to identify a similarly-situated employee who had not made an EEO complaint treated differently. 4. Employee alleges "same sex" female-on-female harassment, identifying alleged harasser/supervisor as a lesbian. The harassment took the form of regular physical handling of employee by supervisor (two-armed hugs every other day, lap-sitting at least ten times and numerous gropings), together with many sex-charged comments by supervisor (about the supervisor's sexual conquests and her carnal interest in employee). The court held that (1) a jury could find the above-conduct sufficiently severe to constitute harassment; (2) the district court erred in holding that the employee was not subjectively offended as a matter of law (with disputed evidence that the employee had complained through There supervisors and asked supervisor herself to "knock it off"); and (3) there was also a triable issue of fact about whether the employer could satisfy its affirmative defense under Faragher/Ellerth when the employee made repeated complaints but the employer took no steps to restrain supervisor's behavior.

Pruitt v. City of Chicago, 472 F.3d 925, 99 FEP 737(7th Cir. 2006) . Panel: EASTERBROOK, Cudahy, Manion. Claims on Appeal: Title VII/§ 1981 harassment (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Court did not err in finding that proposed Rule 23 class of fewer than 40 employees allegedly harassed by the same foreman over 20 years was not sufficiently numerous to make joinder impracticable. As for 10 name plaintiffs, district court did not err in finding grounds for laches, as allowed by Nat'l R.R. Passenger Corp. v. Morgan: harassment claim began no later than 1981 (unreasonable delay) and prejudice resulted from delay (witnesses moved from district, became ill or died; records were destroyed). Employer not required to prove detrimental reliance on delay. While district court erred in finding that application of laches compelled termination of the entire suit, and panel held that equity permitted court to carve out more recent events for litigation while finding earlier events time-barred, plaintiffs waived that contention in the district court by taking an "all-or-nothing" position.

Burnett v. LFW Inc., 472 F.3d 471, 18 A.D. Cases 1536 (7th Cir. 2006). Panel: WILLIAMS, Bauer, Rovner. Claims on Appeal: ADA termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred in holding that employee failed to provide adequate notice of his condition to this employer. Summary judgment affirmed on alternative ground that employee did not present a genuine issue of material fact regarding whether he was disabled (i.e. undiagnosed prostate cancer, leading to frequent urination and restrictions on strenuous physical activity). Proof of disability is individualized; the simple fact of the diagnosis of an impairment is not enough on its own to prove disability. Employee did not show that he was substantially limited in any major life activity. Even assuming that employee identified a "work" as a major life activity, there was no evidence that he was (or employer regarded him as) limited in performing a class or broad range of jobs.

Timmons v. General Motors Corp., 469 F.3d 1122, 18 A.D. Cases 1281 (7th Cir. 2006). Panel : SYKES, Bauer, Kanne. Claim on Appeal: ADA forced leave. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Customer Activities Manager with MS was placed on leave after medical exam requiring travel and driving restrictions. Assuming that plaintiff is a qualified person with a disability, summary judgment was appropriate because there was no genuine issue of material fact about whether employee (1) was meeting employer's reasonable expectations (evidence that he did not report to work often enough, skipped meetings, did not return customer calls and turned over job duties to associate); (2) was subjected unlawfully to medical exam under 42 U.S.C. § 12112(d)(4)(A) (administered after employee was observed having difficulty driving and had a work place accident with his automatic scooter). Court holds that forced leave, even with pay, is an adverse employment action.

Merillat v. Metal Spinners, Inc., 470 F.3d 685, 99 FEP 577 (7th Cir. 2006) . Panel: RIPPLE, Bauer, Rovner. Claim on Appeal: 1. Title VII (sex) and ADEA termination. 2. Equal Pay Act. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Where employee evaluations were inconclusive about plaintiff's performance and she had recently received a merit raise, she presented genuine issue of material fact about meeting her employer's expectations. Under "mini-RIF" examination applied by circuit, relevant inquiry in prima facie case was whether employee's tasks were absorbed by persons outside protected group, which she also demonstrated. Nevertheless there was insufficient evidence that reasons for discharge were pretextual (automation of position was undisputed by employee; alleged superiority of younger male incumbent in working with co-workers, educational background and willingness to operate within new business strategy were within employer's "honest belief"). Evidence that younger male incumbent had better rapport with manager who made decision than plaintiff not evidence of age/sex discrimination or that employer ordered her to remove "remove the cartoon lampooning the differences between male and female salaries" not evidence of age/sex-based animus. 2. Though casting doubt on "market force" defense relied upon by employer, employee failed to present a genuine issue of material fact on prima facie case (level of responsibility different between plaintiff and comparable male; 29 C.F.R. § 1620.17(a)) or affirmative defense of factor other than sex (difference in male counterpart's education, experience and market forces at the time of his hire).

Szymanski v. Cook Co., 468 F.3d 1027, 99 FEP 417 (7th Cir. 2006). Panel: EVANS, Bauer, Easterbrook. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Furnishing references by former supervisor that describe the employee as "good," but not "excellent," not an adverse action. addition ally, there was no evidence that (except for the references) the supervisor had any further contact with hospital where employee was applying to work.

Adams v. City of Chicago, 469 F.3d 609, 99 FEP 327 (7th Cir. 2006). Panel: MANION, Flaum [WILLIAMS, dissenting]. Claims on Appeal: Title VII disparate impact promotion (race, national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Because the 1994 promotion examination was conceded (by the city) to have a disparate impact when applied in 1997, but where the minority officers conceded the test to be job-related and consistent with business necessity, the only issue was whether the officers could present valid, less-discriminatory method of allocating the promotions. The officers proposed, as an alternative, allocating 30% of the promotions for "merit" selection (i.e. on-the-job performance, as rated by their supervisors), the method eventually selected by the city in 1998. The district court abused discretion by excluding proof of the 1998 system under Fed. R. Evid. 407, which bars evidence of subsequent measures to prove liability. Proving alternative promotional methods often requires looking forward or backward in time at the company's personnel practices. But majority finds that despite the relevance of the city's experience with the 1998 merit promotions, the record revealed no evidence that this method could have been used in 1997. When the consultant created the 1994 examination, on which the 1997 promotions were based, city had never considered merit for promotions to sergeant in the 100 years after written exams were instituted for the police officers. The parties concurred that as of February 22, 1997, the date of the contested promotions, "the City had never developed, and had never had developed for it, a mechanism or procedure for merit promotions to the rank of police sergeant that had ever been validated."

Erickson v. Wisconsin Dept. of Corrections, 469 F.3d 600, 99 FEP 334 (7th Cir. 2006). Panel: EVANS, Rovner, Sykes . Claims on Appeal: Title VII and '1983 harassment (sex). Disposition Below: Judgment following a jury trial [plaintiff]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee, a female payroll worker, was raped by an inmate who was cleared by the DOC to work as a janitor. Eight days before the rape, Ms. Erickson in person warned the prison warden, assistant superintendent, sections chiefs and human resources about the inmate's bizarre behavior (fiddling around with a vacuum while staring at the plaintiff) and said she was worried for her personal security. None of these responsible figures, according to the trial record, took any action on her complaints prior to the rape. Negligence held to be correct standard for harassment by non-employees. Defendant not entitled to judgment as a matter of law on ground that employer cannot be held liable for a hostile work environment unless it was previously placed on specific notice of actual prior acts of sex harassment. In this setting, warning employer of potential sex harassment was enough, and employer had addition al information about the workplace environment indicating danger to unattended female employees. That inmate could have been plotting specifically non-sexual crime did not impeach jury's finding that inmate's behavior indicated intent to commit sex crime.

Luks v. Baxter Healthcare Corp., 467 F.3d 1049, 99 FEP 166 (7th Cir. 2006). Panel: ROVNER, Easterbrook, Williams . Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Proposed chain of circumstantial inferences (i.e., manager who insisted over direct supervisor's protest to put several employees on performance plans; documents furtively placed and removed from files; allegedly unreasonable criticisms of performance) insufficient to establish age discrimination by the direct method, because they reveal only that the manager wanted to terminate certain employees, not age motivation. Statements about wanting to get rid of "good old boys," references to "old timers" and the "old guy," and looking for "higher energy" employees to innocuous and attenuated from termination decision to constitute evidence following the direct method. Under indirect method, even assuming plaintiff satisfied prima facie burden, plaintiff only established a disagreement about the quality of plaintiff's performance and evidence that lower level figures (who were not similarly situated) were not terminated were insufficient to establish pretext.

Nair v. Nicholson, 464 F.3d 766, 99 FEP 14 (7th Cir. 2006). Panel: POSNER, Easterbrook, Rovner. Claims on Appeal: 1. Title VII harassment (national origin). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. While claims based on foreign citizenship are not covered by Title VII, claims based on foreign origin may be. Nevertheless, the claim presented here involved harassment by co-workers who were also foreign-born, and there was no evidence that their hostility was motivated by her ethnic origin (Indian). 2. Harassment by co-workers motivated by the employee's complaints to the EEO office were not equivalent to protected activity; complaints were not about national origin discrimination. In any case, harassment by co-workers was not attributable to the employer because the plaintiff failed to show a failure to observe due care.

Burks v. Wisconsin Dept. of Transp., 464 F.3d 744, 99 FEP 17 (7th Cir. 2006). Panel: RIPPLE, Bauer, Wood. Claims on Appeal: 1. Title VII and '1983 termination (race). 2. Rehabilitation Act termination. 3. Title VII and Rehabilitation Act retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant].2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Under indirect method, employee fails to show There employees she identified were comparable. One was below her in the organization, one was her supervisor, and the third was deficient in only one of the several skills criticized by her employer. Plaintiff also failed to establish that she performed to her employer's reasonable expectations. Co-workers' affidavits generally commenting on her performance, prior performance evaluation and productivity report do not present a genuine issue of material fact on this issue. Employee also failed to establish pretext. Although "same actor" inference may not have applied, because there was a possible issue of material fact about the supervisors' lack of discretion in the hiring decision, reasons for termination (deadline problems, failure to follow up with local officials, lack of initiative, lack of personal responsibility) not rebutted. 2. Plaintiff's inability to sit/stand for extended periods and hearing/vision disabilities did not substantially impair any major life activity. Record lacked evidence of symptoms or medical testimony regarding effect on sleeping, walking, sitting, seeing or hearing. 3. Under direct or indirect method, employee fails to present prima facie case of retaliation, where there is no evidence (aside from poor reviews received months after her EEO complaints) to raise inference of causation.

Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 98 FEP 1716 (7th Cir. 2006). Panel: WILLIAMS, Flaum, Sykes. Claims on Appeal: ADEA, Title VII, and '1981 termination (national origin). State tort claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: Comment that employee was "too old, too Polish and too stupid" for job in sleep lab not direct proof of discrimination; no evidence that statements were proximate to termination decision. Assuming that employee met her prima facie case via the indirect method, employee failed to show that the reasons for her termination (failed to document results of sleep test, endangered a patient by not contacting medical personnel, and not documenting reasons for terminating test). Even if she could make out genuine issue of material fact as to one of the issues (employee presented evidence that the she could not have been aware of a computer glitch that posed a problem in the study), she could not rebut other reasons.

Paz v. Wauconda Healthcare and Rehabilitation Centre, LLC, 464 F.3d 659, 98 FEP 1448 (7th Cir. 2006). Panel: BAUER, Posner, Williams. Claims on Appeal: Title VII termination (national origin, pregnancy) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds: Employee could present genuine issues of material fact about her termination with her own deposition testimony, showing that there were sharp disagreements about whether employee abandoned her job or was fired. Employee's testimony was corroborated by time sheets, work schedules and co-worker testimony (e.g. evidence that her name had already been scratched off the time sheet before she reported for work). Record also contained direct evidence of supervisor's animus (supervisor's remarks about Mexicans, supervisor's comments and treatment of employee when she learned about her pregnancy, suggestions that plaintiff should get abortion, routine of giving less-desirable tasks to Latinos, bizarre string of trivial complaints about employee's performance). Extreme comments (e.g. "Mexicans cause problems and come to the United States to take jobs from American people") may suffice to make out direct proof even if made months before, in so far as it fits into a mosaic of other evidence. Question of whether supervisor had power to fire plaintiff was a question of apparent, rather than actual authority. Supervisor was garbed in authority (e.g. she made the hiring decision, evaluated her, assigned her work schedule, oversaw her work schedule).

Phelan v. Cook County, 463 F.3d 773, 98 FEP 1601 (7th Cir. 2006). Panel: WILLIAMS, Coffey, Evans. Claims on Appeal: 1. Title VII (sex) termination. 2. Title VII (sex) harassment. 3. Title VII retaliation. 4. '1983 termination. First Amendment claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. 4. Affirmed [defendant]. Grounds: 1. District court erred in interpreting employee's charge and complaint to cover events in only one worksite. Thus the claims were exhausted before the EEOC and were timely. Employee presented a genuine issue of material fact using the direct method of proof. Four-month termination was adverse employment action actionable under Title VII. Reinstating employee with back pay did not change the result. Genuine issue of material fact that employer was motivated by gender (i.e. stream of insulting comments from supervisors/co-workers, physical assault by several co-workers, body-slammed into a desk, retaliatory remarks when she complained about the treatment to human resources, instructed by supervisor to stop making reports to HR, remarks that she is in a "man's world" and it's "no place for a woman," Threatened with termination). Further evidence supporting inference of discrimination include choice of one accused supervisor to make termination decision about the plaintiff, suspicious timing on failure to grant medical leave after assault, and subsequent internal evaluation showing that employee should not have been terminated. Race summary judgment affirmed (employee called "stupid white woman," but no adverse employment action related to comment. 2. Finding genuine issue of material fact regarding the status of two alleged harassers as "supervisors" for purposes of Faragher: one who was responsible for performance evaluations, had power to call a disciplinary hearing, and had a say in who the hearing officer would be; the other who was a Human Resources Officer who had the power to adjudicate and decide disciplinary matters. Splitting supervisory authority between two employees did not deprive them of supervisor status. Even if the standard were negligence rather than strict liability, employee was still entitled to a trial, because of a factual dispute about the efficacy of the remedial step (transferring the employee to a different worksite), as harassment allegedly continued. Record revealed that even though the plaintiff was subjected to extensive verbal abuse by male employees, and employer did not respond to complaints. Faragher only applies where no adverse employment action takes place, and here the employee was terminated. 3. Genuine issue of material fact under direct method, where various employees warned plaintiff that she could be fired for making complaints and first adverse action came within two months of her complaints about harassment. 4. Although a § 1983 claim may be based on a practice directed entirely against the only woman in a workplace, here the separate incidents do not cohere into a single policy.

Thanongsinh v. Board of Educ., 462 F.3d 762 (7th Cir. 2006). Panel: RIPPLE, Posner, Kanne. Claims on Appeal: Title VII, and '1981 demotion (race and national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds: Under indirect method of proof, plaintiff custodian presents genuine issues of material fact about whether (1) he was meeting the employer's legitimate expectations; (2) he identified similarly situated individuals; (3) the employer's explanation was pretext. On point (1), the board could not rely on a certification test that the plaintiff failed where evidence established that the test was applied in a discriminatory fashion, and other extrinsic evidence (contemporaneous work reviews) showed he was doing his job well. That he also failed an exam retake might be attributable to employee's reasonable belief that the exam was corrupted by bias. Because the test may have been corrupted, the issue of qualifications would have to be reserved to the third stage of the analysis. On point (2), while one of the whites he identified was not comparable, another employee was similarly situated. The district court abused its discretion in denying admissibility of a scoring sheet. Document was admissible as an FRE803(6) business record, and the unidentified handwritten notes on the score sheet could be treated as part of the record because the board maintained custody of the sheet and only persons with primary access could have written on it. Although employee did not present testimony by the person who created the document, it can be authenticated through the custodian (FRE902(11) or FRE902(12)). But at the summary judgment stage, such authentication need not be obtained provided that the document has "sufficient indicia of trustworthiness to be considered reliable," such as here where the defendant admitted in discovery that the document was authentic and relied on the same document on summary judgment. Score sheet also admissible as a party admission, FRE801(d)(2)(A). On point (3), if the avowed reason the employee was demoted was the test result, and the test result is tainted by race bias, then that reason is not a "legitimate, non-discriminatory reason." Evidence included test administrator's statement that "he could not understand" the employee's accent and the employee "should learned better English." Though this evidence was presented in the form of an affidavit by the plaintiff, it was not materially different from the employee's deposition and supported by other facts in the record. Comments were close enough to the event to avoid being labeled as "stray remarks." Section 1981 claim against agents also survives summary judgment; administration of exam, if racially discriminatory, violated his right to enter into contract.

Sublett v. John Wiley & Sons, Inc., 463 F.3d 731 (7th Cir. 2006). Panel: WOOD, Easterbrook, Manion. Claims on Appeal: 1. Title VII (race) promotion. 2. Title VII (race) promotion. 3. Title VII (race) performance review. 4. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. District court did not abuse discretion by skipping over limitations argument in favor of merits of pretext, because the parties were afforded a sufficient opportunity to brief this issue (including plaintiff's leave to file a sur-reply). Under indirect method, assuming plaintiff made out prima facie case, there is not enough evidence to support pretext. Employer was honestly mistaken in believing that plaintiff had a conflict with an another employee. Although employer cannot remedy discrimination simply by a post hoc reversal of the adverse decision, it is evidence of good faith that as soon the mistake was corrected, the employee scored a later promotion. 2. Employee fails to present genuine issue of material fact regarding similarly-situated employees; successful candidates were undeniably superior in experience and education. Claim on addition al promotion fails because employee never applied for it. alternatively, there was no proof of racial bias (e.g. stray remarks). 3. Even if performance evaluations could constitute adverse employment action, there is no evidence of false or inaccurate statements in the reports other than employee's denials. 4. Employee did not point to employees who were directly comparable in all material respects. In any event, there was no evidence that her performance evaluations materially declined before and after she made her EEO complaint.

Anders v. Waste Management of Wisc., Inc., 463 F.3d 670, 98 FEP 1459 (7th Cir. 2006). Panel: BAUER, Wood, Sykes. Claim on Appeal: 1. Title VII, § 1981 and Wis. state law termination. 2. ADA and Wis. state law termination. FMLA claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. District court did not abuse discretion in disregarding employees statement of contested and uncontested facts that did not comply with the local rule. District court did not expand scope of record on appeal by going outside defendant's arguments or proposed findings. Employee with record of disciplinary citations in record who was fired when he walked off the job, drove 30 miles to confront is managers and assaulted an employee failed to present genuine issue of material fact about meeting his employer's reasonable expectations or being treated differently from similarly situated employees. Employer presented four witnesses substantiating employee's Threatening behavior; employee failed to develop record as to four supposed comparable employees who are white. 2. Alleged panic disorder that triggered his aggressive behavior was short-term and intermittent only, and therefore not an impairment as defined by ADA, or a handicap under state law.

Cassimy v. Board of Educ. of the Rockford Pub. Sch., 461 F.3d 932, 18 A.D. Cases 647 (7th Cir. 2006). Panel: WOOD, Flaum, Kanne. Claim on Appeal: 1. ADA discrimination and reasonable accommodation. 2. ADA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee school administrator did not present genuine issue of material fact about whether episodic depression was a substantial limitation on the major life activity of working, where evidence showed only minimal impairment in that activity, which lifted when he transferred to another district. Moreover, impairment was not permanent or long-term, where diagnosis was "situational" anxiety and depression. No evidence of regarded-as discrimination, where board was aware of diagnosis but did not overreact to illness. 2. Reclassification of administrator to teacher was adverse action that affected salary. But employee failed to produce proof by the direct method of retaliatory motive, and presented no genuine issue of material fact by the indirect method. Only alleged comparable employee who received better treatment was ill with cancer and died some time later. Allegedly suspicious timing explained by state's statutory deadline for reclassification decisions.

Crawford v. Indiana Harbor Belt R.R. Co., 461 F.3d 844, 98 FEP 1398 (7th Cir. 2006) . Panel: POSNER, Bauer, Kanne . Claims on Appeal: Title VII termination (race and sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine issue of material fact on prima facie element of plaintiff being treated relatively worse than comparable men. Employee was only woman in workforce as brakeman, fired as a disciplinary action for safety infractions. Other employees outside protected group need only be "sufficiently comparable to [plaintiff] to suggest she was singled out for worse treatment." Employee failed to compare herself with male employees with comparable length of service, overall safety and absentee records, and supervisors (who it was presumed enjoyed discretion in issuing reprimands).

EEOC v. Target Corp., 460 F.3d 946, 98 FEP 1356 (7th Cir. 2006) (7th Cir. Aug. 23, 2006) . Panel: CUDAHY, Kanne, Rovner . Claims on Appeal: 1. Preservation of records under 42 U.S.C. § 2000e-8(c). 2. Title VII hiring (race) . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: .

Keri v. Board of Trustees of Purdue Univ., 458 F.3d 620, 98 FEP 1295 (7th Cir. 2006). Panel: KANNE, Manion, Rovner. Claims on Appeal: Title VII and '§ 1981, 1983 termination/non-renewal (race, national origin), and retaliation. Ind. tort claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Non-tenured instructor fails to meet prima facie burden because he fails to show he was working up to the employer's reasonable expectations (ample evidence of widespread complaints from students and supervisors; opinion of Chancellor and There different individuals supports determination). Tenured professors were not "similarly situated" for purposes of comparison for prima facie case. Panel adopts the district court opinion.

Yindee v. CCH Inc., 458 F.3d 599, 18 A.D. Cases 417 (7th Cir. 2006). Panel: EASTERBROOK, Posner, Wood. Claims on Appeal: ADA termination and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although infertility is a disability within meaning of ADA, no accommodation requested by employee related to that disability and employer showed no signs of considering that disability in making its termination decision. No evidence that vertigo, which affected her ability to drive, was an aspect of the infertility. Even if plaintiff made out prima facie retaliation claim, employee failed to make out genuine issue of material fact on pretext. Employer's reason for termination was employee's lack of productivity. This reason was not rebutted by showing that employee turned up for work (either by telecommuting or otherwise) for requisite number of hours each week.

Tomanovich v. City of Indianapolis, 457 F.3d 656, 98 FEP 1206 (7th Cir. 2006). Panel: MANION, Posner, Ripple. Claims on Appeal: Title VII retaliation. State statutory claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to establish retaliation either under the direct or indirect method. Court finds that while employee's filing of an EEOC charge was a protected activity, filing of grievance that did not specify discrimination was not protected. Four month period between charge and termination did not raise inference through temporal proximity. Alleged comparable employee not shown to have committed work violations as significant as plaintiff's and decision was not made by the same supervisor.

Minor v. Centocor, Inc., 457 F.3d 632, 98 FEP 934 (7th Cir. 2006). Panel: EASTERBROOK, Flaum, Posner. Claims on Appeal: Title VII (sex) and ADEA discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Application of new policy requiring sales staff to visit their accounts twice a month, which allegedly caused the plaintiff to increase her working hours from 50-55 to 70-90 hours a week, not wound to be discriminatory where work rule applied to all employees and increases in work hours were attributable to the employee's own transportation decisions.

Patton v. Keystone RV Company, 455 F.3d 812, 98 FEP 937 (7th Cir. 2006) . Panel: KANNE, Wood, Sykes. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee presented genuine issue of material fact about severe or pervasive harassment. Allegedly, supervisor regularly exploited his authority as plant quality control manager to station himself near plaintiff. Supervisor had already raised the alleged rumor of a sexual affair between himself and plaintiff. He leered at and stalked the plaintiff, and touched her inappropriately. Most serious incident was when he slid his hand under plaintiff's shorts, up her inner thigh, while commenting that her legs were smooth. His hand went as far as her underwear. On other occasions, he put his hand on her calf and put his arm on her back with his hand near her neck. He then placed his face quite close to her ear and told her to meet him for a drink. Court notes that supervisor's groping under plaintiff's shorts might be sufficient alone to create an abusive working environment. But it was not the sole act. Court found same behavior sufficient to present a genuine issue of material fact about constructive discharge. "[A] reasonable fact finder could agree with Patton's fear that her supervisor was an obsessed man who based on previous acts showing no regard for Patton's right to control who could touch intimate areas of her bodyCwas capable of, and desirous of, physically assaulting her in a serious way. We need not conclude that a rape or other assault was likely, but only whether a reasonable fact finder could find that Patton should have quit immediately to protect herself."

Doe v. Oberweis Dairy, 456 F.3d 704, 98 FEP 958 (7th Cir. 2006) . Panel: POSNER, Kanne, Wood. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Although a complainant must cooperate with the EEOC, including by participating in a fact-finding conference with Commission staff (29 C.F.R ' 1601.15(c)), failure to comply does not bar a subsequent civil action. Court notes split with Tenth Circuit (Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304 (10th Cir. 2005)). Panel cast doubt on the commonly-repeated assumption that "exhaustion" is a precondition to a civil action against a private employer under Title VII, contrasting a private-sector employee's duties to true exhaustion required of federal employees under Title VII, 42 U.S.C. § 2000e-16. The court held that for purposes of evaluating the "welcomeness" of sexual intercourse under Title VII sex harassment law, the state law "age of consent should thus be the rule of decision in Title VII cases." Alleged consensual conduct might bear on emotional distress, however. "Workplace" harassment can take place after a shift and off the premises, under the right conditions. While the acts of harassment at the shop leading up to the sex (as summarized above) may or may not have been sufficiently severe or pervasive to fix Title VII harassment liability, the sex definitely transgressed the line. Test for non-work activity whether the harassment was "an episode in a relationship that began and grew in the workplace." Whether the shift supervisor in this case was a "supervisor" for purposes of Faragher-Ellerth -- imposing vicarious liability on the employer, subject to an affirmative defense -- was an issue of fact for the jury. The panel noted that "[h]e had supervisory responsibility in the sense of authority to direct the work of the scoopers, and he was even authorized to issue disciplinary write-ups, but he had no authority to fire them. He was either an elevated coworker or a diminished supervisor." Panel stated that if "forced to choose," it would be inclined to conclude he was a supervisor, as he was often the only supervisor in the shop, and his personnel recommendations would most likely be followed, even if he lacked the power individually to carry them out. Notes tension with cases in the same circuit requiring that a "supervisor" carry actual hiring, firing or comparable authority (e.g., Hall v. Bodine Electric Co., 276 F.3d 345, 355 (7th Cir. 2002)). Even if the shift supervisor were deemed a co-worker, the fact that he had charge of (minor) teenage employees meant that the employer had an enhanced duty of due care to prevent possible sexual contact. "An employer of teenagers is not in loco parentis, but he acts at his peril if he fails to warn their parents when he knows or should know that their children are at substantial risk of statutory rape by an older, male shift supervisor in circumstances constituting workplace harassment." While the employer was entitled in discovery to obtain the employee's psychotherapy records, it was barred for obtaining portions of the records that referred exclusively to her mother and sister.

Treadwell v. Office of the Illinois Sec'y of State, 455 F.3d 778, 98 FEP 956 (7th Cir. 2006). Panel: RIPPLE, Posner, Coffey. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee points to no evidence, direct or circumstantial, of a causal connection between the statutorily protected activity his filing of discrimination complaints and the adverse employment action his transfer to the warehouse. Only evidence of similarly-situated employees revealed that a co-worker who did not complain of discrimination was treated the same way. Employee's co-worker never had filed an EEOC complaint, and yet was subject to the same adverse employment action that plaintiff had suffered. Both were transferred to the same warehouse, where they both were subjected to the same working conditions, treatment from supervisors and low-level work assignments.

Smith v. Castaways Family Diner, 453 F.3d 971, 98 FEP 847 (7th Cir. 2006) . Panel: ROVNER, Flaum, Sykes . Claims on Appeal: Title VII discrimination (sex, race, national origin) and retaliation . Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds: Under Clackamas Gastroenterology Assocs. v. Wells , 538 U.S. 440 (2003), district court erred in counting as "employers" (when counting the fifteen-employee minimum under 42 U.S.C. § 2000e(b)) managers who had no ownership interest in the restaurant, but who exercised day-to-day management of the operation and (in one case) shared in profits and losses. "Employers" include only business owners and operators (i.e. principals, including shareholders, partners, directors and officers), not their agents.

Sylvester v. SOS Children's Villages Illinois, Inc., 453 F.3d 900, 98 FEP 701 (7th Cir. 2006) . Panel: POSNER, Coffey, Ripple . Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds: Court repudiates suggestion in Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640 (7th Cir. 2002), that a retaliation case required "direct evidence" instead of the more-typical order of proof under McDonnell Douglas. Reaffirms that circumstantial evidence was also admissible to establish causation. Court also backed off suggestion in Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994), must take form of a "mosaic"; adequate circumstantial evidence may assure a trial. On the merits, the employee was one of several women who co-signed a letter complaining about the male CEO and his repeated use of the word "bitch." At a meeting of the board of directors with a lawyer who serves on the board, board decided at once to terminate two co-signers who had checkered employment histories. The board also decided that Sylvester -- whose performance did not justify immediate termination -- would be reprieved, but she was directed to meet the CEO the next day to meet with West (after the firings were announced). Because employee challenged CEO's candor in the aftermath of the termination, she herself was fired for alleged insubordination. Court found circumstances sufficient to present a genuine issue of material fact about causation (prompt firing of other complaining employees, plaintiff's performance specifically raised in meeting about the letter, CEO who was subject of letter immediately met with and fired plaintiff).

Tartt v. Northwest Community Hospital, 453 F.3d 817, 98 FEP 714 (7th Cir. 2006) . Panel: KANNE, Posner, Ripple. Claims on Appeal: Title VII termination. Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant] . Outcome on Appeal: Affirmed [defendant] . Grounds: Employee filed two separate Title VII actions naming different arrays of defendants, allowed one to come to judgment first (dismissed because the district court thought it duplicative of the parallel suit) and failed to timely appeal the adverse ruling. The second suit was dismissed for failure to state a claim and want of prosecution. While the district court granted the employee leave to reinstate the first suit, the employer successfully moved to dismiss it on res judicata grounds owing to the judgment in the second case. District court did not err in dismissing on this ground.

Cannon-Stokes v. Potter, 453 F.3d 446, 18 A.D. Cases 201 (7th Cir. 2006) . Panel: EASTERBROOK, Coffey, Sykes. Claims on Appeal: Rehabilitation Act reasonable accommodation and retaliation. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: A debtor in Chapter 7 bankruptcy who fails to list a legal claim in her petition forfeits that claim after the bankruptcy ends, by operation of judicial estoppel.

Forrester v. Rauland -Borg Corp., 453 F.3d 416, 98 FEP 546 (7th Cir. 2006) . Panel: POSNER, Easterbrook, Wood. Claims on Appeal: Title VII termination (sex) . Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: Court disaffirms dicta in prior cases that pretext may be demonstrated where employer's explanation was "insufficient to motivate," where such circumstances more properly fall into the category of not actually motivating the employment decision. Allegation that investigation of infraction (sex harassment) was shoddy irrelevant to question of whether that ground was pretextual.

Randolph v. Indiana Regional Council of Carpenters & Millwrights, 453 F.3d 413 (7th Cir. 2006) . Panel: POSNER, Wood, Evans . Claims on Appeal : Title VII and ADEA discrimination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds: Plaintiff challenged whether the union's failure to place the employee on an "out-of-work" list was motivated by discrimination or (as the union argued) simply that plaintiff had never asked to placed on the list to begin with. Plaintiff presented genuine issue of material fact with her own testimony (that she did, in fact, ask to placed on the list), and phone records showing several calls that she placed to the union office. The union challenged the phone record entries, arguing that "all but the last call were very short, one of them lasting, according to her own records, for only 50 seconds, which, the union argues, is too short for her to have asked to be put on the list. That is obviously wrong, and though it might persuade a gullible juror, it cannot eliminate a triable issue." Plaintiff's own testimony if admissible will normally suffice to establish a genuine issue of material fact, "e.g., that "she made a phone call and said thus-and-so in the ensuing conversation, or left a message on an answering machine (the union had an answering machine) that said thus-and-so").

Valentine v. City of Chicago, 452 F.3d 670, 98 FEP 622 (7th Cir 2006) . Panel: FLAUM, Evans, Williams . Claims on Appeal : 1. Title VII harassment (sex). 2. '1983 harassment (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds : 1. Employee presented genuine issue of material fact on contested points. Employer was not on notice about one of her co-worker's harassment until September 25, 2002. Nevertheless, for second defendant, there was a genuine issue of material fact whether he was "supervisor" who had power to transfer employee between lots, based on admission by city during litigation. Genuine issue of material fact about Faragher defense, where employee contends that she reasonably believed that harasser was correct person under city's anti-harassment policy to contact, and her complaints that other harasser "put his hands on her" in male-dominated setting triggered policy. Alleged conduct meets "severe or pervasive" standard (by several co-workers, six touching combined with numerous verbally harassing statements; regular propositioning; comments on appearance; crotch rubbing; simulate masterbation with cookie crumbs), despite that it was a rough work environment. Evidence that behavior was so frequent and aimed directly at employee supported inference. Genuine issue of material fact whether harassment was subjectively hostile (anxiety, inability to concentrate, depression, need to transfer). 2. Genuine issue of material fact whether employees who were arguably her supervisor acted under color of state law. While one supervisor failed to act with the requisite intent to discriminate (when he ordered employee's transfer to a different yard), for a second employee there was a genuine issue of material fact whether based on his knowledge of the harassment and failure to act (e.g., plaintiff approached him ten times, took only light action with co-worker harasser, complained that employee was bringing "heat" on the agency, yelled and Threw chair when agency began to demand the names of witnesses). Insufficient evidence of city policy or custom to hold city liable.

Scaife v. Cook County, 446 F.3d 735, 98 FEP 1 (7th Cir. 2006). Panel: KANNE, Posner, Sykes. Claims on Appeal: 1. Title VII/'1981/'1983 discipline (race). 2. Title VII/'1981/'1983 discipline (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds :1. Employee fails to make out prima facie case where he fails to demonstrate that alleged white comparable employees were similarly situated (e.g., frequency of tardiness, identity of supervisors, how they were treated). Employee failed to present time records into evidence; conclusory statement in affidavit not enough to present genuine issue of material fact. Even assuming that suspensions were adverse actions, no evidence to show that they were wrongfully motivated. 2. Indirect claim fails for same reason as above (absence of evidence regarding alleged white comparables. Evidence that employee's former supervisor expressed racially discriminatory beliefs about black employees irrelevant because he was not the decision maker. Causation vitiated by evidence that employee, despite notice, failed to contest any of the suspensions at hearings, and suspensions were affirmed on grounds that employee defaulted.

Smith v. Potter, 445 F.3d 1000, 97 FEP 1854 (7th Cir. 2006). Panel: COFFEY, Easterbrook, Evans. Claim on Appeal: Title VII termination (race and sex). Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Plaintiff federal employee failed to exhaust administrative remedies prior to filing civil action, because she failed to contact EEO counselor within 45 days of the Postal Service's unequivocal notification of her dismissal, under 29 C.F.R. § 1614.105(a)(1). Period not lengthened by pendency of grievance. Informal phone call to EEO counselor not a "contact" within the regulation because agency had procedure for written complaints. Employee's declaration that she had placed a phone call to her counselor was unsubstantiated, and affidavits by acquaintances who she supposedly told about making the contact at the time constituted inadmissible hearsay (and were not admissible as prior consistent statements). No equitable estoppel allowed, where plaintiff had no evidence that her employee misled her about filing deadline. or that she relied upon any such representation. District court did not err in refusing to defer to EEOC's prior finding that employee's claim was timely, where parties are entitled to de novo review of all issues.

Davis v. Wisconsin Dep't of Corrections, 445 F.3d 971, 97 FEP 1673 (7th Cir. 2006). Panel: SYKES, Easterbrook, Evans. Claim on Appeal: Title VII/§ 1983 disciplinary demotion (race) . Disposition Below : Judgment after a jury trial [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Court reaffirms that on review of denial of judgment as a matter of law under Rule 50, the reviewing court considers only "the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Demotion recommended by the human resources director (defendant Kathryn Long) and imposed by the warden (defendant Thomas Karlen). Employee, an African-American sergeant, stood accused by a female social worker of sex harassment. Long concluded in a memorandum that Davis violated Work Rule 13, deemed (according to the memo) a "category B" violation. The DOC's internal procedures prescribed only a written reprimand for a one-time category B violation. Two white sergeants who were likewise charged with category B violations (one for repeated acts of unprofessionalism, the other for defacing staff identification photographs) earned no more than a suspension and a reprimand. Davis was demoted instead. Employer's contention that write up was inaccurate and department intended to record a more serious "category C" offense in the Davis memo (which had also been reviewed by Karlen), was credibility issue and jury could conclude that infraction was insufficient under the prison's standards to support demotion of employee. Defendants' evidence consisted of their own testimony that they took Davis's conduct seriously, that they thought it was a category C violation, and that the DOC memo contained a typographical error, based on witness testimony that was not disinterested.

Scheerer v. Potter, 443 F.3d 916, 17 AD Cases 1345 (7th Cir. 2006). Panel: WILLIAMS, Flaum, Rovner. Claim on Appeal: Rehabilitation Act reasonable accommodation. Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee with Type 2 diabetes failed to demonstrate that he was substantially limited in the major life activities of walking (briefly had to wear a protective boot for a period of time), eating (weight reduction diet only), sleep (intermittent disrupted sleep), and sexual activity (required limited medical assistance, and no notion that employer could reasonably accommodate that particular disability).

Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 97 FEP 1385 (7th Cir. 2006) . Panel: POSNER, Kanne, Sykes. Claim on Appeal: ADEA termination. Disposition Below: Dismissed under Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Church organist's suit barred by the "ministerial exception." Noting conflict with Hankins v. Lyght , 438 F.3d 163 (2d Cir. 2006), which held that the federal Religious Freedom Restoration Act vitiated the common-law ministerial exception to the ADEA.

Mlynczak v. Bodman, 442 F.3d 1050, 97 FEP 1377 (7th Cir. 2006). Panel: WOOD, Posner, Ripple. Claims on Appeal: 1. Title VII promotion (reverse race and sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1 Affirmed [defendant]. 2. Affirmed [defendant]]. Grounds: 1. Four white male plaintiffs challenged promotion of minority women under aegis of affirmative actions programs. Remarks by managers that they would tend to favor hiring of minorities and women and that one white candidate was "screwed" not direct evidence of discrimination, either made by non-decision makers or too weak to draw inference of discrimination. Existence of affirmative action policy itself is not proof of intentional discrimination unless there is a link to the challenged decision; here, the affirmative action policy was only used to widen recruitment pool, not to make promotion selections. Nothing inherently discriminatory in expanding promotion pool beyond local office. Reliance on comparative qualifications required plaintiffs to show that they were clearly superior, which plaintiffs did not demonstrate. Evidence of one minority candidate's actual performance in the job was not relevant to actual promotion decision. 2. Shunning by co-workers, leaking of unflattering memo by one plaintiff and reduction of performance ratings not adverse actions.

Velez v. City of Chicago, 442 F.3d 1043, 97 FEP 1390 (7th Cir. 2006) . Panel: FLAUM, Bauer, Ripple. Claim on Appeal: 1. Title VII harassment (national origin). 2. Title VII demotion (national origin). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Alleged harasser was not "supervisor" for purposes of Faragher/Ellerth, because as exempt employees plaintiffs reported directly to fire commissioner instead of through chain of command, and thus were not under commander of Chicago Fire Department Public Education Unit. Thus, court applied co-worker liability standard for harassment, and there was no genuine issue of material fact about due care; employees never reported instances of national origin harassment and there was no basis for city to know. 2. Evidence of alleged direct evidence, presented in plaintiff affidavit that contradicted deposition, properly excluded. No evidence that employee's performance of job met employer's legitimate expectations; external investigation established that plaintiffs misappropriated and mishandled project funds, failed to attend required meetings and did not perform other required job functions.

Goodwin v. Board of Trustees of the Univ. of Illinois, 442 F.3d 611, 97 FEP 1281 (7th Cir. 2006) . Panel: FLAUM, Williams, Sykes. Claim on Appeal: Title VII/§ 1983 demotion (sex and race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff was demoted (supposedly for Threatening retaliation against a subordinate employee), grieved demotion and was restored to work, but in an office job without supervisory responsibilities or opportunities for overtime (worth an estimated $10,000 to $15,000). Genuine issue of material fact about element of prima facie case concerning similarly situated employee; white male was only given warning for making a vulgar and Threatening comment to a coworker, while plaintiff was demoted. Employee also established that up until the challenged event, she had a satisfactory work record. Evidence of pretext included statement by individual who investigated the alleged misconduct that employee was "trying to be more than what [she is]" and that "people" didn't like her because she was a strong black female. Subordinate's accusation also not adequately examined, and Merit Board found accusation not credible. Merit Board decision does not collaterally estop agency from presenting defense to pretext because it did not incorporate the hearing officer's finding of facts (which weighed credibility determinations against the agency's witnesses). Rather, upon review, the Board held only that the hearing officer conducted the hearing in compliance with the law and that the agency failed to meet its burden of establishing just cause for termination.

Raymond v. Ameritech Corp., 442 F.3d 600, 97 FEP 1308 (7th Cir. 2006) . Panel: KANNE, Cudahy, Sykes. Claim on Appeal: ADEA/Title VII (sex) termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee filed response to summary judgment incomplete and after date set by court. Date of mailing does not constitute service under Fed. R. Civ. P. 5(e). Fed. R. Civ. P. 5(d) default rule about filing within "reasonable time" after service does not apply when court has set a firm date. District court judge did not abuse discretion under Fed. R. Civ. P. 6(b) to extend deadline for filing, where deadline for response to summary judgment had already been extended once and it had expressly denied another extension. Court did not abuse discretion by failing to find excusable neglect under Rule 6(b), where late filing and service impaired time for reply, deadline had already passed, case was already 15 months old, counsel evidently squandered time at the beginning of the schedule and had 48 total days to file. On the merits, employee never identified comparable male employee for prima facie case; only male on performance plan still outranked plaintiff.

Higbee v. Sentry Ins. Co., 440 F.3d 408, 97 FEP 929 (7th Cir. 2006) . Panel: KANNE, Bauer, Posner. Claim on Appeal: Title VII harassment (sex). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff waived objection to "supervisor" instruction for Faragher/Ellerth defense; no plain error in its use.

Mattenson v. Baxter Healthcare Corp., 438 F.3d 763, 97 FEP 839 (7th Cir. 2006). Panel: POSNER, Bauer, Wood. Claim on Appeal: ADEA termination. Disposition Below: Judgment after a jury trial ($500,000 back pay, doubled for willfulness; no front pay) [defendant]. Outcome on Appeal: Reversed [defendant]. Grounds: District court in close case committed abuse of discretion and reversible error when it refused to allow employer to present evidence that employee was placed on performance plan in 1996, where it helped explain context for second performance plan imposed on employee at the time of his termination. Other errors below included (1) use of burden-shifting instruction; (2) instructing that employer had burden of presenting a "reasonable" factor other than age; (3) instruction that implies that only alternative to legitimate reason for termination was pretext; (4) exposure of in-house counsel's work notes over objection to work product, Fed. R. Civ. P. 26(b)(3), where notes included many sensitive predictions and statements about impending litigation over the employee's termination (but evidence of pre-planned severance may be admissible); (5) plaintiff's cross-examination of in-house counsel, FRE403; and (6) application of crime-fraud exception to putative work product. Evidence of emotional toll on employee/family admissible even without emotional distress damages under ADEA, where it bolstered evidence of constructive discharge. Evidence of background comments by supervisors were admissible over FRE403 objection and were not on their face "stray remarks." "Culture" type evidence must be pervasive. Higher-place VP executives, as in this case, may present some evidence of a company-wide age animus. Front pay properly denied where employee failed to demonstrate mitigation by application for work at 23 firms; employee not entitled to full income to age 65.

EEOC v. Sidley Austin LLP, 437 F.3d 695, 97 FEP 743 (7th Cir. 2006). Panel: POSNER, Easterbrook, Wood. Claim on Appeal: ADEA demotion. Disposition Below: Denial of partial summary judgment [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: EEOC has standing to obtain ADEA relief for partners who did not file charges with agency, overruling EEOC v. North Gibson school Dist., 266 F.3d 607 (7th Cir. 2001).

Kolupa v. Roselle Park Dist., 438 F.3d 713, 97 FEP 643 (7th Cir. 2006) . Panel: EASTERBROOK, Manion, Kanne. Claims on Appeal: Title VII discrimination/ reasonable accommodation (religion). Disposition Below: Rule 12(b)(6) dismissal for failure to state a claim [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in holding that plaintiff alleging disparate treatment had to allege how other employees treated more favorably were similarly situated. Dismissal could not be affirmed on alternative ground that employee impliedly conceded absence of animus by manager, because he did not allege discriminatory motivation. Silence in a complaint is not a concession. Plaintiff was also not required to allege each of the supposedly discriminatory warnings he received. Some claims, though, could be dismissed on the grounds that they were outside of the scope of the EEOC charge.

Maalik v. Int'l Union of Elevator Constructors, Local 2, 437 F.3d 650, 97 FEP 646 (7th Cir. 2006) . Panel: EASTERBROOK, Manion, Wood. Claims on Appeal: Title VII training (sex, race). Disposition Below: Judgment after a bench trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Union refused to give plaintiff a mechanics permit to obtain training. District court erred in holding that only an employer could beheld liable under Title VII for failure to train. Distinguishes EEOC v. Pipefitters Local 597, 334 F.3d 656 (7th Cir. 2003), because liability in this case was based on '703(d), 42 U.S.C. § 2000e-2(d), which is specific to training. Under this section, union could be held liable for deliberately taking no steps to assist plaintiff to get her permit.

Hague v. Thompson Distribution Corp., 436 F.3d 816, 97 FEP 545 (7th Cir. 2006) . Panel: MANION, Easterbrook, Sykes. Claims on Appeal: Section 1981 termination (reverse discrimination). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Adhering to "background circumstances" gloss on first element of McDonnell Douglas prima facie case for white employees, panel finds that whites who are fired from a black-owned business met test (noting split with Third Circuit on heightened standard). Nevertheless, employer made out argument that the five employees, who were terminated during their probationary period, did not meet the company's reasonable expectations (under the second prong of the prima facie test). Employees variously terminated for (1) cursing and allowing a supplier to remove a boiler; (2) low sales; (3) insubordination; (4) incompetent bookkeeping; and (5) pricing and other policy errors with vendors. Though there was a lack of paper work concerning the reasons for these decisions, one would not expect a small business to keep such record, Likewise, complaints that employer failed to provide any written job descriptions, conduct performance reviews, provide them with information about their performance problems or furnish reason for termination also does not constitute evidence of pretext. Plaintiffs' lawyer also misstated facts about workforce racial composition in oral argument.

Johal v. Little Lady Foods, Inc., 434 F.3d 943, 97 FEP 376 (7th Cir. 2006). Panel: EVANS, Coffey, Easterbrook. Claims on Appeal: Title VII termination (race, color, national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Evidence of prior job performance no probative of employer's view of current performance when duties and supervision change. Elimination of job not pretextual explanation where plaintiff's duties were split with There incumbent employees. Circumstantial evidence not probative where employee fails to locate comparative white employees, establish relative qualifications of other employees, or pinpoint inconsistencies in explanations. Statement of facts by plaintiff struck in part for failure to comply with Local Rule 56.1

Farfaras v. Citizens Bank & Trust, 433 F.3d 558, 97 FEP 391 (7th Cir. 2006). Panel: FLAUM, Ripple, Sykes. Claims on Appeal: Title VII termination. State law tort claims against individuals (not discussed here). Disposition Below: Judgment after a jury trial; $50,000 compensatory damages; $300,000 against individual defendants; $9314.48 lost wages, $436,766.75 attorneys fees and costs [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Comments concerning female employee's Greek ancestry admissible in sex discrimination case, where references to her ethnicity were intertwined with sexually harassing statements (e.g., "most beautiful Greek woman that he's ever met"). In view of egregiousness of sex-biased statements, admitting evidence of ethnicity not unduly prejudicial. In support of emotional distress damages, lay witness may describe employee as "depressed." Compensatory damages neither excessive nor duplicative of punitive damages. Employer could not revive unleaded mitigation defense by Fed. R. Civ. P. 15(b), where judge found that only question relevant to mitigation during trial was ambiguous and did not trigger "implied consent." Attorneys fees affirmed.

Moranski v. General Motors Corp., 433 F.3d 537, 97 FEP 97 (7th Cir. 2005). Panel : WILLIAMS, Posner, Sykes. Claims on Appeal : Title VII discrimination (religion). Disposition Below : Dismissal under Fed. R. Civ. P. 12(b)(6). Outcome on Appeal : Affirmed [defendant]. Grounds: Employer's policy to recognize and provide resources to employee "affinity groups" (e.g. disabilities, African-Americans, women), except for political and religious groups, not a violation of Title VII, as it neither privileges nor discourages particular religious expression.

Dunn v. Washington County Hospital, 429 F.3d 689, 96 FEP 1647 (7th Cir. 2005). Panel: EASTERBROOK, Sykes [ROVNER, dissenting in part]. Claims on Appeal: 1. Title VII harassment (sex). 2. Equal Protection harassment (sex). 3. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds:1. Employer may be held liable for harassment by independent contractor if it fails to take action after it is on notice of the harassing conditions. Employer control over the contractor is irrelevant to Title VII liability, which is direct rather than derivative. 2. No evidence that hospital intentionally set out to ratify or encourage harassing behavior by physician independent contractor, nor was his alleged harassment a form of state action. 3. Unfulfilled Thereats of retaliation by physician independent contractor do not constitute adverse employment action. Incident of assault and battery by same doctor, while arguably an adverse action, could not be attributed to the employer (which only discovered the incident at the time the plaintiff quit). Action by non-agent could not be deemed constructive discharge, and in any event was not sufficiently severe to support claim.

Wernsing v. Dep't of Human Services, 427 F.3d 466, 96 FEP 1153 (7th Cir. 2005). Panel: EASTERBROOK, Evans, Sykes. Claims on Appeal: Equal Pay Act. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Reaffirming circuit precedent that uniform policy that sets lateral hire salary at their current salary and a raise does not violate EPA because it is a "factor other than sex," and employer need not furnish an "acceptable business reason" for this policy (noting conflict with Second, Sixth, Ninth and Eleventh Circuits).

Cardoso v. Robert Bosch Corp., No. 04-4026 (7th Cir. Oct 14, 2005). Panel: KANNE, Easterbrook, Sykes. Claims on Appeal: Title VII compensation (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Statement by manager that plaintiff was paid less "because you're Brazilian" not direct evidence because record did not establish genuine issue of material fact that manager was a decision-maker or influenced pay decision. Using indirect method, assuming plaintiff met prima facie case, employer proffered valid non-discriminatory reasons for setting other senior sales staff salaries higher than plaintiff's pay (skills, experience, education and work performance). No evidence that employer contrived to set titles differently to deprive plaintiff of higher compensation. Plaintiff's declaration substantially contradicted by his deposition. Plaintiff's rebuttal did not create genuine issue of material fact about whether employer honestly believed reasons.

Johnson v. ExxonMobil Corp., 426 F.3d 887, 96 FEP 1171 (7th Cir. 2005). Panel: FLAUM, Manion, Evans. Claims on Appeal: ADA and ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: ADA and ADEA termination. Plaintiff judicially estopped under Cleveland by SSDI application, where he received benefits based on false statement of his disability, and plaintiff offered no explanation for inconsistency other than bald error. Sua sponte dismissal of ADEA claim by summary judgment on the eve of trial upheld where plaintiff was given opportunity to explain what kind of evidence he intended to present at trial, which turned out to be insufficient.

Hart v. Transit Management of Racine, Inc., 426 F.3d 863, 96 FEP 1195 (7th Cir. 2005). Panel: Per Curiam [Wood, Williams, Sykes]. Claims on Appeal: 1. § 1981 retaliation. 2. § 1981 discrimination. Hybrid claim under LMRA and NLRA (not discussed here). Disposition Below: 1. Dismissal under Rule 12(b)(6) [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Section 1981 does not provide for claim of retaliation (siding with Eleventh Circuit), so dismissal for failure to state a claim under Rule 12(b)(6) is affirmed. 2. District court erred in dismissing discrimination claim where plaintiff claimed he was denied overtime because of race. Plaintiff met prima facie case by showing that white employees were advantageously shifted to job classifications with superior overtime opportunities under the collective bargaining agreement (with the union's connivance), which was circumstantial evidence of discrimination where defendants lacked an valid non-discriminatory reason for the decision.

Whittaker v. Northern Illinois Univ., 424 F.3d 640, 96 FEP 982 (7th Cir. 2005) . Panel: WILLIAMS, Cudahy, Evans. Claim on Appeal: 1. Title VII and § 1983 harassment (sex). 2. Title VII and § 1983 discrimination (sex) and retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Plaintiff failed to prove severe or pervasive harassment. Most of the explicit and derogatory sexual statements uttered about plaintiff were made outside her presence, other instances were few and sporadic, and there was no touching or propositioning. 2. Written reprimands, without other consequences, not an adverse employment action. Although plaintiff was placed on There-days unpaid suspension (an adverse employment action), she resigned before she ever had to serve it out. Notes that standard for adverse action in retaliation context is broader, but this case still falls short.

Ballance v. City of Springfield, 424 F.3d 614, 96 FEP 988 (7th Cir. 2005) . Panel: WILLIAMS, Rovner, Wood. Claim on Appeal: Title VII termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Title VII termination (race, reverse discrimination). While white police officer C who was terminated for lying during an internal affairs interview, after he was accused of domestic violence C made out prima facie case, court affirms summary judgment because plaintiff failed to create a genuine issue of material fact about pretext. For prima facie case, plaintiff using indirect method of proof established "background circumstances" to show inference that employer discriminated against non-minority; city had commissioned law firm to investigate department's employment practices, and the report concluded that women and minorities received preferences. Evidence of favorable citations supported inference that plaintiff performed to employer's reasonable expectations. Plaintiff also identified African-American officer who was also accused of domestic violence who was not terminated; department's contention that plaintiff committed more brutal battery immaterial. Department presented legitimate, non-discriminatory explanation (plaintiff had prior record of discipline and obstructed an internal affairs investigation), supported by multiple, corroborating witnesses and plaintiff's evasive demeanor under interrogation.

Bio v. Federal Express Corp., 424 F.3d 593, 96 FEP 907 (7th Cir. 2005) . Panel: WOOD, Flaum, Easterbrook. Claim on Appeal: Title VII and § 1981 discipline and termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to present prima facie case where he was unable to identify similarly situated, non-African-American who was not disciplined or terminated for the same infractions. Individual outside of protected class must be "directly comparable . . . in all material respects." Final warning letter (after two "performance reminders" regarding uncompleted projects) charged plaintiff with insubordination, because he refused to submit to a "personal performance agreement" as a condition of continued employment; no other employee was comparable. White employee who allegedly committed similar mistakes to plaintiff had only been working for employer for eight months, while plaintiff had worked there for four years. Company waited much longer to criticize plaintiff for the same deficiencies, and white employee was terminated after receiving There warnings just as plaintiff was.

Byrd v. Illinois Dep't of Public Health, 423 F.3d 696, 96 FEP 812 (7th Cir. 2005). Panel: ROVNER, Evans, Sykes. Claim on Appeal : Title VII retaliation. Disposition Below : Judgment following a jury trial ($15,090 lost wages, $82,500 emotional distress) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds : District court erred in instructing jury that "If the decision makers in this case regarding Lester Byrd's salary and/or There day suspension acted as the conduit for another employee's prejudice, the innocence of the decision makers cannot relieve the Illinois Department of Public Health from legal responsibility." The court failed to instruct the jury that the causal link could be broken if higher-up decision makers took action against plaintiff for independent reasons untainted by any illegal motive of manager who ran his section (who record showed regularly indulged in racial rants). Because facts in the record could have shown that Byrd's evaluations and disciplinary actions might have been decided independently of manager, the error was not harmless. Court declined to enter judgment as a matter of law for the agency, because record showed that agency regularly solicited advice from the manager and he was involved in evaluation process. Moreover, there was evidence that agency superiors were aware of EEOC charge and began to escalate scrutiny of plaintiff's conduct coincidental with its filing.

Deloughery v. City of Chicago, 422 F.3d 611, 96 FEP 768 (7th Cir. 2005) . Panel: RIPPLE, Bauer, Kanne. Claim on Appeal : Title VII retaliation. First Amendment claim (not discussed here). Disposition Below : Judgment following a jury trial ($250,000 emotional distress, reduced by judge to $175,000; $18,000 back pay; $282,000 front pay; instatement to captain within 120 days) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Following a jury trial, court entered judgment for plaintiff on Title VII claim, while jury found no liability for First Amendment claim. Verdicts were not inconsistent, because jury could have found that termination was motivated by plaintiff participating in (i.e. filing) agency EEO charges, while it was not motivated by her "opposition to discrimination." City's challenge to instructions comes too late; it was waived at trial. Though second plaintiff in same trial lost the same claim, court found that claims could be reconciled by looking at employer's separate responses to both employees, and plaintiff's conduct had more direct effect on superintendent. Remittitu to $175,000 also upheld over city's objection that total amount should have been smaller still; employee could prove emotional distress on her own testimony, without expert; district court was in best position to evaluate the testimony; and though on the high end, it was within range of other awards for emotional distress affirmed by circuit.

Farrell v. Butler Univ., 421 F.3d 609, 96 FEP 667 (7th Cir. 2005). Panel: WILLIAMS, Evans [FLAUM, concurring in the judgment]. . Claim on Appeal : Title VII compensation (sex). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Title VII compensation, disparate treatment and impact (sex). Plaintiff challenged annual academic award that conferred a cash award. Timely to bring claim more that 300 days after plaintiff first lost out, because she had no reason to suspect that sex discrimination may have been a factor until year two (when men won both years). Though a close question, court concludes that award is more akin to a raise (which is actionable) than a bonus (which is deemed not an adverse employment action). While plaintiff established prima facie case, she could not rebut proffered explanation (tath her service to the school and overall performance was not as strong as other candidates). Plaintiff's subjective assessment of her own relative qualifications was not relevant. Plaintiff lacked standing to advance disparate impact claim, where plaintiff in fact met the academic criteria for the award and was considered with other candidates.

Venezia v. Gottlieb Memorial Hospital, Inc., 421 F.3d 468, 96 FEP 561 (7th Cir. 2005). Panel: WOOD, Kanne, Williams. Claim on Appeal: Title VII harassment (sex). Disposition Below: Rule 12(b)(6) dismissal for failure to state a claim [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Married couple, each spouse presenting a claim of harassment because of sex, may join their claims in the same complaint. Alleged harassment involved different employees at the same employer, but had common issues of fact (e.g., employer's anti-harassment policy) which were sufficient for joinder under Fed. R. Civ. P. 20(a). Husband alleged numerous instances of harassment attributable to supervisor and co-workers, while wife's claims involved just co-workers. Allegations were sufficient to state claim under Fed. R. Civ. P. 8(a).

Rudin v. Lincoln Land Community College, 420 F.3d 712 (7th Cir. 2005). Panel: RIPPLE, Posner, Sykes. Claim on Appeal: 1. Title VII hiring (race). 2. Title VII hiring (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds : 1. Reverse discrimination and sex blamed for plaintiff's failure to obtain full-time, tenure-track position. Black male was hired for position after interview process, ranking of candidates and submission of decision to president of school and college board. Regarding race discrimination claim, there was no direct evidence of race discrimination (i.e. evidence of what the employer said about the decision at issue). But there was sufficient circumstantial evidence to present a genuine issue of material fact about the college's motivation. The employer self-consciously added a minority candidate to the pool, according to a policy intended to expand minority hiring, and the chair of the department admitted on several occasions that the college was placing pressure on him to furnish a minority. Moreover, the college did not follow its ordinary procedures in its hiring process (screening committee did not meet, rankings of candidates were ignored). Finally the college offered shifting explanations of its decision to hire the black male candidate. 2. Regarding the sex discrimination claim, plaintiff presented indirect, McDonnell Douglas burden-shifting proof. Employer conceded prima facie case, but contended that successful candidate was the best qualified. Panel confirms that in this circuit, it is sufficient for pretext for plaintiff to present genuine issue of material fact about the credibility of the employer's proffered justification. Plaintiff offered same reasons as above, plus her own superior qualifications, which were deemed sufficient to present a genuine issue of material fact on sex.

Washington v. Illinois Dep't of Revenue, 420 F.3d 658, 96 FEP 545 (7th Cir. 2005) Panel: EASTERBROOK, Rovner, Sykes. Claim on Appeal : Title VII retaliation. Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : After the employee filed a charge, she was assigned away from a job that allowed her flex-time. While retaliation claims need not entail an adverse "employment" action (i.e. tangible employment actions), because retaliatory conduct may occur outside the employment setting, the challenged action must still be material to a reasonable employee. The materiality concept is built into the concept of discrimination, and Title VII defines retaliation as a form of "discrimination." (Court observed in an aside that actions to retaliate against persons who participate in another employee's charge as a witness may be deterred by lesser acts.) An employer's action is not material is it would not have dissuaded a reasonable employee from making or supporting a charge of discrimination. Although reassignments would not ordinarily be deemed material, if unaccompanied by loss of pay or promotion opportunities, in this case the manager may have been preying on the employee's unique circumstances (i.e., the reassignment meant that the employee, with a developmentally disabled child, either had to make alternative arrangements for care or lose time and income at work). At trial, one issue would be whether the decision-maker was aware of the employee's particular vulnerability.

Mendenhall v. Mueller Streamline Co., 419 F.3d 686, 96 FEP 496 (7th Cir. 2005). Panel: KANNE, Rovner, Wood. Claim on Appeal: 1. Title VII harassment (race) 2. Title VII retaliation. Disposition Below: 1. Judgment as a matter of law [defendant]. 2. Judgment as a matter of law [defendant]. Outcome on Appeal: 1. Reversed [plaintiff] 2. Reversed [plaintiff]. Grounds: 1. District court erred in holding that employee could not maintain hostile work environment case in the absence of a race discrimination claim (that was dismissed on summary judgment before trial). Decision to deny summary judgment on harassment was law of the case when it transferred from original district court judge to new judge for trial. 2. District court erred at trial by entering JMOL before plaintiff had "been fully heard on the issue," where employee's counsel stated that he wanted to continue to present evidence, in spite of adverse ruling on admissibility of ethnic slurs, on belief that employee intended to take interlocutory appeal.

Isbell v. Allstate Insurance Co., 418 F.3d 788, 95 FEP 321 (7th Cir. 2005). Panel: MANION, Cudahy, Evans. Claim on Appeal: 1. ADEA retaliation. 2. ADEA termination. ERISA claim and contract counterclaim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: Employee sales agent who refused to sign release and was terminated did not suffer retaliation; all agents lost their jobs, regardless of the release, when Allstate eliminated their positions. Termination did not violate ADEA where various studies that supposedly implied that younger agents performed better than older ones referred principally to the difference between mostly-younger independent contractors and mostly-older employee agents. Moreover, challenge policy affected all agents C younger and older Cthe same way (i.e., they were all terminated and all offered the opportunity to return to organization as independent contractors)

Hernandez v. HCH Miller Park Venture, 418 F.3d 732, 95 FEP 327 (7th Cir. 2005). Panel: MANION, Bauer, Ripple. Claim on Appeal: Title VII discrimination and retaliation (sex). Disposition Below: Judgment entered following a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Title VII discrimination and retaliation (sex). Exclusion of evidence of condition of toilets at construction site, including sexually-offensive graffiti, not abuse of discretion. Plaintiff failed to make offer of proof that graffiti was sexually harassing, and filed to associate it with a company employee or management (where hundreds of subcontractors also worked). Also no evidence that toilets for women were maintained in worse condition than men's toilets. Toilet evidence was not predicate for retaliation, where complaint about condition of toilets with our more could not reasonably be considered a complaint about sex discrimination under Title VII. No error in instruction that stated that "[I]f you find that the defendant's [sic] sex was a motivating factor in the defendant's actions regarding the terms and conditions of plaintiff's employment, the plaintiff is entitled to your verdict, even if you find that the defendant's conduct was also motivated by a lawful reason." "Terms and conditions" is a fair substitute for "employment practice." District court not obliged to give exact same instruction as approved in Desert Palace.

EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 16 A.D. Cases 17 (7th Cir. 2005). Panel: FLAUM, Kanne, Williams. Claim on Appeal: ADA reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: ADA reasonable accommodation. District court did not violate mandate from first appeal (EEOC v. Sears, Roebuck & Co., 233 F.3d 432 (7th Cir. 2000)) by reconsidering whether plaintiff was a qualified person with a disability in light of intervening Toyota Motors decision by Supreme Court. Employee with neuropathy (nerve damage caused by diabetes) presents genuine issue of material fact whether she is "disabled" for purposes of ADA, because she was, under terms of EEOC regulation interpreting ADA language "substantially limits," "significantly restricted" (29 C.F.R. § 1630.2(j)(1)) in the major life activity of walking. Court could rely on EEOC regulation notwithstanding Toyota Motors because Supreme Court itself cited to this section. Evidence in the light most favorable to employee shows that she could not walk further than one city block without numbness, and she reached point where walking even twenty feet caused discomfort. Employee also presented genuine issue of material fact regarding reasonable accommodation. Employer's suggestions may not be reasonable where (1) use of reserved parking place did not reduce walking distances, and (2) use of shortcut through stockroom was barred by department manager, who yelled at employee when she tried to use it. Material fact about whether employee was sufficiently aware of disability to trigger interactive process, where supervisors at There levels knew of condition, she provided doctor's notes disclosing limitations and she specifically requested accommodation. Material issue presented on breakdown of interactive process (29 C.F.R. § 1630.2(o)(3)), where employer simply denied employee's requests, did not request information from employee and did not suggest alternatives.

Reschny v. Elk Grove Plating Co., 414 F.3d 821, 96 FEP 113 (7th Cir. 2005). Panel: BAUER, Posner, Easterbrook. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Right-to-sue letter to plaintiff's former lawyer had never reached the addressee, because the firm was closed. But plaintiff and her attorneys failed to update their addresses, and she waited a year and-a-half before inquiring of the EEOC about the status of her claim. This negligence brought the constructive receipt doctrine into play and started running the 90-day limitation period. Requirement under 29 C.F.R. § 1614.605(d) that employee and counsel should both receive notice was not in effect at the time of the misdelivery.

Shafer v. Kal-Kan Foods, Inc., 417 F.3d 663, 95 FEP 351 (7th Cir. 2005) . Panel : EASTERBROOK, Bauer, Sykes. Claim on Appeal : 1. Title VII retaliation. 2. Title VII harassment (sex) . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Retaliation claim fails where managers making termination decision were unaware of prior discrimination complaint some eight months prior. 2.Alleged harassment by co-worker (bullying language, sexual innuendo, four assaults and batteries), followed up by plaintiffs' oral complaint to human resources and belated report to a supervisor, not attributable to employer: harassment stopped after reported to supervisor, no evidence that employer had foreknowledge of risk that co-worker would assault other employees. Also problematic that harassment was based on sex, because co-worker had history of abusing employees generally. Events were not pervasive. Employer did not provide plaintiff less protection because he is male.

Darnell v. Thermafiber, Inc., 417 F.3d 657, 16 A.D. Cases 1709 (7th Cir. 2005) . Panel : BAUER, Flaum, Williams. Claim on Appeal : ADA hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer could conclude that applicant with insulin-dependent diabetes was "direct Thereat" in safety-sensitive job based on single urine sugar level test, where physician's interview revealed employee's poor compliance with regimen; both parties' experts agreed that condition was not under control; associated conditions (unconsciousness, confusion and impaired judgment) were too serious in job that involved lifting heavy objects, using mechanical equipment and climbing ladders; that heat of plant would likely exacerbate conditions, and that accommodations (meal and water breaks) would not mitigate Thereat. Injury could be considered likely to occur.

Walker v. Abbott Laboratories, 416 F.3d 641, 96 FEP 294 (7th Cir. 2005). Panel : POSNER, Bauer, Easterbrook. Claim on Appeal : Title VII promotion (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff applying for promotion admitted that his all-around qualifications for a higher salary grade were inferior to successful white candidate. That employer did not follow minimum qualifications strictly in hiring successful candidate was not evidence of race discrimination. Moreover, employer made case that it was necessary to raise white candidate to higher salary grade to retain him, while that was not an issue with plaintiff. Notes that court need not run case through McDonnell Douglas examination if record as a whole demonstrates that employee could not prevail.

Gore v. Indiana University, 416 F.3d 590, 96 FEP 169 (7th Cir. 2005). Panel: WOOD, Bauer, Easterbrook. Claim on Appeal: Title VII hiring (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Male plaintiff presents no background circumstances that male candidates would tend to suffer discrimination in reverse discrimination case. Other male candidate was hired into lecturer position first; hiring committee was gender-balanced.

Culver v. Gorman & Co., 416 F.3d 540, 96 FEP 301 (7th Cir. 2005). Panel: CUDAHY, Posner, Williams. Claim on Appeal : Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff presented genuine issue of material fact under direct method of proof about whether her termination was motivated by retaliation. Circumstantial evidence included (1) that only 72 hours elapsed between complaint and termination; (2) her favorable annual review, given the same day she complained about the raise and by the same manager who terminated her; and (3) the manager's alleged warning to the employee that she was "making a mistake" taking her complaint to another manager. Whether employer honestly believed employee committed insubordination during the same There-day period presented triable issue of fact. Supervisor failed to mention one incident entirely in his deposition, he previously gave vague explanations for his decision to fire plaintiff ("issues," "performance issues"), he gave her a good review There days before the termination, plaintiff's behavior and demeanor during meeting with her supervisor was a contested issue of fact, and the employer's explanation was first presented in the summary judgment motion. Employer's alternative explanation (that it fired plaintiff preemptively because the manager thought she was about to quit) also presents a genuine issue of material fact; plaintiff testified that she had said she planned to stay and did not Threaten to quit.

Rozskowiak v. Village of Arlington Heights, 415 F.3d 608, 96 FEP 90 (7th Cir. 2005). Panel: BAUER, Easterbrook, Evans. Claim on Appeal: Title VII and § 1981 termination (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No direct evidence of discrimination presented by sergeant repeatedly Threatening plaintiff that he would be fired because he was a "stupid Polack"; decision maker is the chief of police, and sergeant had limited input into termination decision (i.e. sergeant authored report that accurately identified plaintiff's performance deficiencies). addition al derogatory comments by police commander were not related to termination; they were not communicated to decision makers. No circumstantial evidence that termination decision was made on any basis other than the performance report. Plaintiff lacked indirect, pretextual proof of discrimination. He did not make out prima facie case, because he did not identify anyone not of Polish descent who was similarly situated (i.e. patrol officers with civilian complaints).

Geldon v. South Milwaukee school Dist., 414 F.3d 817, 96 FEP 109 (7th Cir. 2005). Panel: EVANS, Williams [CUDAHY, concurring in the judgment]. Claim on Appeal: 1. Title VII failure to hire (sex). 2. Title VII failure to hire (sex). Disposition Below : 1. Summary judgment [defendant]. 2. Judgment following a jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Identifying just one failure-to-hire incident in EEOC charge was not like or reasonably related to second, unidentified incident, so she failed to administratively exhaust her second claim. 2. Grant of summary judgment on second claim did not prejudice plaintiff at trial; despite not being able to try both claims to jury, she could have introduced evidence of time-barred incident as background evidence. Plaintiff did not appeal evidentiary issue.

Jackson v. City of Chicago, 414 F.3d 806, 16 A.D. Cases 1601 (7th Cir. 2005). Panel: RIPPLE, Wood, Evans. Claim on Appeal: ADA and Rehabilitation Act discrimination and reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff police officer with fibromyalgia was not qualified person with a disability because she could not perform an essential function of her job (using a firearm) with or without accommodation. Plaintiffs experts opined that she could be discharged from disability, but only to light duty work. Moreover, plaintiff failed to participate in interactive process by refusing to answer questions about her disability or furnish medical documentation about her condition

Brummett v. Sinclair Broadcast Group, Inc., 414 F.3d 686, 95 FEP 1865 (7th Cir. 2005). Panel: RIPPLE, Wood, Sykes. Claim on Appeal: Title VII compensation (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Account executive could not establish prima facie case of discrimination because he failed to establish that similarly-situated white employees were treated differently. Non-minority account executives were different and not comparable (plaintiff had different compensation contract than white counterparts; one white counterpart had superior performance, another quit before his probationary period ended).

Racicot v. Wal-Mart Stores, Inc., 414 F.3d 675, 95 FEP 1880 (7th Cir. 2005). Panel: BAUER, Easterbrook, Wood. Claim on Appeal: 1. Title VII discrimination (sex). 2. Title VII harassment (sex). 3. ADEA harassment. 4. Title VII and ADEA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Time barred by filing of charge over one year after last alleged event. 2. Limited number of uncouth actions not severe or pervasive. 3. Complaints that plaintiff was too old to do heavy lifting of boxes not severe or pervasive. 4. No evidence that other accused of alleged integrity violations were treated differently.

Conner v. Illinois Department of Natural Resources, 413 F.3d 675, 95 FEP 1833 (7th Cir. 2005). Panel: KANNE, Flaum, Sykes. Claim on Appeal: Title VII pay and promotion (race) . Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to plead temporary assignment pay claim, even though it was included in her EEOC charge attached to the complaint. District court did not abuse discretion in striking those portions of plaintiff's response to summary judgment. Plaintiff never formally sought leave to amend the complaint to add the claim. Denial of promotion claim was beyond the scope of the EEOC charge.

Nanda v. Moss, 412 F.3d 836, 95 FEP 1783 (7th Cir. 2005). Panel: WILLIAMS, Cudahy, Rovner. Claim on Appeal: Section 1983 termination (sex). Disposition Below: Qualified immunity denied [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds: Dean of school who accepted recommendation of head of department not to renew plaintiff's contract in 1998 did not enjoy qualified immunity, where the evidence on summary judgment showed that he acted with deliberate indifference to complaints by plaintiff and others about sex and ethnic discrimination by department head, and investigation by the faculty senate. That dean subsequently investigated claim in 1999, appointing female faculty member to conduct review, did not insulate prior conduct. The right against sex discrimination in faculty appointments was clearly established in 1998.

Beamon v. Marshall & Ilsey Trust Co., 411 F.3d 854, 95 FEP 1797 (7th Cir. 2005). Panel: SYKES, Easterbrook, Manion. Claim on Appeal: 1. Title VII discrimination (race). 2. Title VII retaliation (race). 3. Title VII harassment (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Claims of various events that occurred in 1999 not equitably tolled by delay in receiving performance evaluation. Employee had sufficient information to be aware that race was at least one possible factor in decisions (absence of other valid reasons, replaced and passed over in favor of white candidates), and had already complained internally to employers EEO officer before the 300 day limitation expired. No evidence on timely claims that similarly situated whites were treated differently. Negative performance evaluation notan adverse employment action. No evidence that management "capped his career" below vice president level. 2. Even if employee was stalled in career advancement, and this fact alone constituted harassment, there was no evidence that the events were "because of race." No abuse of discretion awarding $10,000 in transcription and copying costs.

Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 16 A.D. Cases 1441 (7th Cir. 2005) . Panel: EVANS, Flaum, Williams. Claim on Appeal: 1. ADA failure to promote. 2. ADA testing . Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed and summary judgment entered for plaintiff [plaintiff]. Grounds : 1. Court did not abuse discretion in denying Fed. R. Civ. P. 60 relief to argue new theory why claim was not time- barred. Moreover, the record revealed that there were no promotions awarded during the 300 days before plaintiff filed a charge. 2. Employer violated medical inquiry provisions under 42 U.S.C. § ' 12112(d) by using Minnesota Multiphasic Personality Inventory (MMPI) to evaluate candidates for promotion. Parties deemed the tests to be "pre-employment." Employer did not argue that test was job-related an consistent with business necessity. MMPI was a medical examination with in the definition of the ADA, citing ADA Enforcement Guidance by EEOC. It was not material to defense that results were not evaluated by doctor, because use of the test itself tended to screen out persons with mental disabilities.

Ineichen v. Ameritech, 410 F.3d 956, 95 FEP 1537 (7th Cir. 2005). Panel: MANION, Evans, Sykes. Claim on Appeal: Title VII termination (race, sex) . Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: White employee failed to establish heightened "background circumstances" tending to show employer has predisposition against white employees. Evidence that African-American employees were treated more leniently in disciplinary matters was insufficient; alleged comparable employees engaged in different kinds of behavior. Plaintiff moreover failed to rebut evidence of legitimate, non-discriminatory reason for termination (i.e. violation of Code of Business Conduct). On related association claim (that she dated a black man), Seventh Circuit has not yet decided whether such facts state a claim (while noting that Fifth, Sixth and Eleventh Circuits had already done so), but finding in any event that there was no evidence that manager viewed relationship negatively, except for ambiguous response that could have applied equally to age-spread between plaintiff and man who she was dating. Attempt to introduce prior inconsistent statement against manager through summary judgment affidavit too late, where it was inconsistent with prior deposition testimony.

Grimm v. Alro Steel Corp.., 410 F.3d 383, 95 FEP 1542 (7th Cir. 2005). Panel: EVANS, Bauer, Easterbrook. Claim on Appeal: ADEA termination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Although there was some issue about whether terminated employees were meeting the employer's legitimate expectations during reduction in force, court concludes that summary judgment can rest on failure to identify significantly younger, similarly situated employees who replaced them. Other younger workers in same unit were also discharged. Once employer had decided to reorganize, it could legitimately select replacement workers from other plants based on its relationship with the unions representing those workers. Older workers were within group of replacement employees.

Rooney v. Koch Ari, LLC, 410 F.3d 376, 16 A.D. Cases 1372 (7th Cir. 2005). Panel: WOOD, Easterbrook, Manion. Claim on Appeal: ADA constructive discharge. Disposition Below: Summary judgment [defendant] . Outcome on Appeal: Affirmed [plaintiff]. Grounds : Plaintiff failed to show that back injury constituted disability, because after recovery period he was able to perform tasks central to most people's lives. No evidence that there was a record of impairment (medical records available to employer indicate that he could perform all major life activities. Nor was plaintiff regarded as disabled: record indicated that employee believed be could perform all functions of customer support position. Even if plaintiff met the statutory definition of disability, he admitted to medical restrictions that prevented him from performing the essential functions of his job (performing on-site inspections). That employer later learned that plaintiff lacked valid drivers' license was after-acquired evidence that could only affect damages. Evidence of different accommodations employer attempted to provide conclusively contradicted constructive discharge claim.

Blise v. Antaramian, 409 F.3d 861, 95 FEP 1459 (7th Cir. 2005). Panel: MANION, Wood, Williams. Claim on Appeal: Section 1981 promotion. Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Although plaintiff presented prima facie case that she was denied promotion in favor of a white female, she cannot show that the reason given by the employer (that white candidate outranked her on scored application process) was pretextual. Plaintiff had argued that white candidate did not meet various minimum qualification, but there was no fact issue that the employer did not honestly believe that she was qualified. No proof that subjective interview process was mask for racial bias.

EEOC v. Caterpillar, Inc., 409 F.3d 831, 95 FEP 1371 (7th Cir. 2005). Panel: POSNER, Easterbrook, Rovner. Claim on Appeal: Title VII pattern-or-practice . Disposition Below : Summary judgment denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: EEOC decision to expand claim in litigation beyond the scope of the original charge not judicially reviewable

Opsteen v. Keller Structures, Inc., 408 F.3d 390, 16 A.D. Cases 1281 (7th Cir. 2005). Panel: EASTERBROOK, Bauer, Rovner . Claim on Appeal: ADA termination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: Plaintiff who applied for ERISA and SSA benefits, upon application prepared by spouse claiming total and permanent disability, not a "qualified individual." He could not explain under Cleveland v. Policy Management that physician previously diagnosed him as unable to return to work owing to cognitive deficits cause by injury. Professional views did not indicate that this condition was temporary. Mental shortcomings would make his eventual return to work too dangerous for himself and colleagues. Employee not expected to furnish permanent part-time work as accommodation.

Waite v. Board of Trustees of Illinois Community College, 408 F.3d 339, 95 FEP 1225 (7th Cir. 2005). Panel: KANNE, Cudahy, Evans . Claim on Appeal: 1. Title VII suspension (national origin). 2. Title VII termination (national origin). Disposition Below: 1. Judgment entered after a jury trial ($15,000) [plaintiff]. 2. Summary judgment [defendant] . Outcome on Appeal: 1. Affirmed [plaintiff]. 2. Affirmed [defendant]. Grounds : 1. Plaintiff (a Jamaican national) was suspended, allegedly for not completing work on a contract which, had it been late, could have cost the employer $500,000. Plaintiff showed that another non-Jamaican committed an even more serious error with a contract, delaying payment to state, and was not punished. Jury could have found supervisor not credible, by exaggerating problems with contract. Supervisor (African-American) also accused plaintiff during arbitration of claim of having "plantation mentality," a pointed insult directed at Caribbeans by American blacks. Although supervisor did not make actual decision to suspend plaintiff, she supplied information to decision maker that may have affected the decision. 2. Plaintiff failed to rebut legitimate, non-discriminatory reasons for termination, insubordination (failure to prepare a report and conduct food reviews).

Walker v. Mueller Industries, Inc., 408 F.3d 328, 95 FEP 1258 (7th Cir. 2005). Panel: ROVNER, Posner, Ripple. Claim on Appeal: 1. Title VII and section 1981 harassment (race). 2. Title VII and section 1981 retaliation. Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Plaintiff (who is white) sued supervisor and employer for failing to respond to his complaints about harassment of African-Americans. Assuming that a majority-race plaintiff can state a claim for being subjected to harassment "because of race" against a minority, he did not prove that he was objectively, personally aggrieved by third-party harassment. Plaintiff forfeited claim to "association" with African-Americans. 2. None of the acts alleged by plaintiff (assignment to undesirable duties, disciplinary warnings, denial of lead person position) were "adverse employment action." Even if they were, plaintiff could not prove causation (some events predated his racial complaints and EEOC charge) or disprove legitimate reasons for decision (performance-related). Retaliatory harassment claim fails because alleged misconduct (supervisor spied on him, sang nursery rhymes to irritate him; co-workers called him names and Threatened him) were not severe enough to constitute a hostile work environment.

Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 16 A.D. Cases 1185 (7th Cir. 2005). Panel: COFFEY, Flaum, Evans. Claim on Appeal: ADA termination. Disposition Below : Judgment after a bench trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Plaintiff had congenital glaucoma, blind in one eye and limited vision in other. District court granted plaintiff summary judgment on intent. (Supervisor admitted vision issue at time of termination; during deposition, he testified that "Well I can't make him see. And that is the problem.") But at trial, court found that plaintiff was not a "qualified individual" because he performed his work at the cheese factory recklessly, and exhibited poor attitude in correcting performance unrelated to his disability (e.g., insubordination, abuse of company time). Adaptive techniques for plaintiff ro perform job more safely were not properly "accommodation," as they required no modification of working conditions. Allowing co-worker to check plaintiff's work and requiring co-workers to give plaintiff "verbal cues" on the factory floor were unreasonable, because it meant turning over essential functions of job to others and did not respond to his other job performance issues. No error in (1) excluding expert witness report that was not timely disclosed, Fed. R. Civ. P 26(a)(2); and (2) including previously undisclosed evidence, purely for impeachment value, Fed. R. Civ. P. 26(a)(1).

Moser v. Indiana Dep't of Corrections, 406 F.3d 895, 95 FEP 1237 (7th Cir. 2005). Panel: RIPPLE, Bauer, Kanne. Claim on Appeal: 1. Title VII discrimination (sex). 2. Title VII harassment (sex). 3. Title VII retaliation (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds : 1. Plaintiff was not performing her work in a satisfactory manner at the time she was reassigned away from her duties, for purposes of prima facie test, where uncontested evidence established that she used profanity and talked about drinking alcohol at work, made inappropriate inquiries into private matters, and neglected her job responsibilities. 2. Incidents of "second-hand" harassment suffered by others and half-dozen sexual comments directed at plaintiff not severe or pervasive. 3. Reassignment was arguably not an adverse employment action, where she did not suffer loss of title, salary or benefits, and disciplinary action had been removed from files. Nevertheless, plaintiff could not show that individual who ordered transfer decision was influenced in any way by complaints by plaintiff of another manager.

Nese v. Julian Nordic Constr. Co., 405 F.3d 638, 16 A.D. Cases 1121 (7th Cir. 2005). Panel: EVANS, Ripple, Williams. Claim on Appeal: ADA compensation/termination. Disposition Below: Dismissal of case on immunity grounds [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : Employer not shown to have regarded employee with epilepsy as disabled, for purposes of prima facie case under ADA, where only evidence was whited-out evaluation form and explanation that employee's pace as carpenter was not up to that of peers. Although Sixth Circuit apparently collapses prima facie and pretext examination into same stage in "regarded as" case, Seventh Circuit does not agree. For employer to provide different explanation for employment decision than what is in records is not, by itself, pretext. No evidence that employer believed employee was substantially limited in the major life activity of working. He had recently been hired by supervisor who knew about his disability (same actor).

West v. Ortho-McNeil Pharmaceutical Corp., 405 F.3d 578, 95 FEP 961 (7th Cir. 2005). Panel: POSNER, Ripple, Rovner. Claim on Appeal: Title VII termination (race). Disposition Below : Judgment as a matter of law [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : Court abused discretion by excluding evidence of racial epithets allegedly used by manager, under National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), because they occurred more than 300 days before plaintiff filed charge. Evidence should have been admitted as background for managers intent.

Takle v. University of Wisconsin Hospital, 402 F.3d 798, 16 FEP 993 (7th Cir. 2005). Panel: POSNER, Ripple, Rovner. Claim on Appeal: ADA discrimination. Disposition Below: Dismissal of case on immunity grounds [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : Hospital, formerly owned and operated by the state university, was not state entity entitled to sovereign immunity under Eleventh Amendment, where state legislature authorized spin-off of hospital as an "independent, non-profit" institution, and did not fund entity; state control was limited to appointment of board of directors (diffused among different public officials) and state ownership of real estate.

Ezell v. Potter, 400 F.3d 1041, 95 FEP 689 (7th Cir. 2005). Panel: ROVNER, Flaum, Posner. Claims on Appeal: 1. Title VII harassment (race, sex). 2. Title VII disciplinary action (race, sex). 3. ADEA disciplinary action. Disposition Below: 1. Summary judgment (defendant). 2. Summary judgment (defendant). 3. Summary judgment (defendant). Outcome on Appeal: 1. Affirmed (defendant). 2. Reversed (plaintiff). 3. Reversed (plaintiff). Grounds: 1. Although plaintiff questionably presented claim in his administrative charge, summary judgment affirmed on ground that supervisor's occasional verbal outbursts about older, white workers were severe enough for hostile work environment. 2. "Letter of Removal" against postal employee may constitute "adverse employment action," even though it was withdrawn before it ever took effect as a result of Ezell's challenge to his termination through the union grievance procedure." Court noted that the short duration of the adverse action was relevant to the degree of damage the plaintiff suffered. Court also challenged district court's treatment of pretext analysis under McDonnell Douglas. District court erred in holding that plaintiff who compared himself to "similarly situated" employees accused of misconduct was required to identify employees who committed the same infraction he was charged with (manipulating the time records), and not other kinds of misconduct. (Plaintiff's comparators had been accused of a different -- though serious -- offense, misplacing mail.) Panel held that "other employees must have engaged in similar -- not identical -- conduct to qualify as similarly situated." Supervisor may have also doctored time records for other employees. 3. Supervisor's admission that her plan was to get rid of older carriers and replace them with younger, faster carriers was direct evidence of intent. Same supervisor who made comment recommended plaintiff's termination to superiors.

Hasan v. U.S. Department of Labor , 400 F.3d 1001 (7th Cir. 2005). Panel: POSNER, Coffey, Wood. Claims on Appeal: Title VII retaliation. Energy Reorganization Act and First Amendment claims (not discussed here). Disposition Below: Summary judgment (defendant). Outcome on Appeal: Affirmed (defendant). Grounds: Court states test for motivating factor in consolidated appeal of There cases: "A motivating factor is a factor that weighs in the defendant's decision to take the action complained of C in other words, it is a consideration present to his mind that favors, that pushes him toward, the action. . . . It is a, not necessarily the, reason that he takes the action. Its precise weight in his decision is not important. It is a, not necessarily the, reason that he takes the action. Its precise weight in his decision is not important." Four month delay between harassment claim and disciplinary action fails to prove causation; and absence of comparators dooms indirect pretext method of proof.

Torry v. Northrop Grumman Corp., 399 F.3d 876, 95 FEP 539 (7th Cir. 2005). Panel: POSNER, Manion, Wood . Claims on Appeal: Title VII (race) and ADEA termination. Disposition Below: Summary judgment (defendant). Outcome on Appeal: Affirmed (defendant). Grounds: Although employer pursued frivolous argument on appeal (that plaintiff failed to plead race discrimination in complaint and was therefore precluded from pursuing it on appeal B court analyzes Fed. R. Civ. P. 15(b) and doctrine of "constructive amendment" B plaintiff's claim was properly dismissed because she failed to rebut legitimate, non-discriminatory reason for termination (economically motivated RIF). She had no evidence that she was denied opportunity to bump under company policy owing to race or age.

Cerros v. Steel Technologies, Inc., 398 F.3d 994, 95 FEP 542 (7th Cir. 2005). Panel: D. WOOD, Easterbrook, Williams. Claims on Appeal: Title VII hostile work environment (racial/national origin). Disposition Below: Judgment after bench trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Prior decision: Cerros v. Steel Technologies, Inc., 288 F.3d 1040 (7th Cir. 2002). After remand of original decision C which vacated judgment in defendant's favor for further proceedings C district court adopted prior findings, and appended new findings that contradicted her prior ruling on severe or pervasive conduct (e.g., judge softened findings on severity and pervasiveness, concerning frequency of racist graffiti and use of slurs such as spic and "brown boy"). Findings on plaintiff's efforts to notify employer and employer's efforts to remedy the harassment also contradictory. Panel also finds legal error. District court (1) may have required harassment to be severe and pervasive; (2) appeared to demand significant number of harassing events, despite that even one severe event may be sufficient; (3) misjudges severity of insults; (4) placed excessive weight on plaintiff's supposed inability to show supervisory complicity in harassment. District court also misjudged application of Ellerth/Faragher defense: (1) employee not required to follow company reporting mechanisms if he takes other reasonable steps to "adequately alert" employer; (2) implementation of an anti-harassment policy alone not relevant to whether took adequate steps to remedy harassment; (3) absence of investigation relevant to failure of policy to meet standard of prompt and appropriate corrective action. Case remanded for new trial and ordered reassigned to different judge. Counsel's statements at oral argument regarding personal knowledge of company's remedial effort conflict with ethical obligation not to serve as advocate-witness (Model Rule 3.7).

Kupstas v. City of Greenwood, 398 F.3d 609, 16 AD Cases 808 (7th Cir. 2005). Panel: FLAUM, Easterbrook, Williams. Claims on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court granted summary judgment that plaintiff with lifting restrictions could not perform essential functions of truck driver/laborer position. Judgment affirmed on alternative theory that plaintiff did not show he regarded by employer as "disabled" under the Act. Employer did not consider plaintiff substantially limited in the major life activity of working when it in fact reinstated him to duty after his restrictions were upgraded. Class of jobs from which plaintiff was restricted (e.g., raking or shoveling 2 hours continuously, 4 hours a day, and 55-60- pound lifting restriction) was narrow, and plaintiff offered no evidence that employer perceived him as restricted in other tasks. City's offer to accommodate plaintiff's restriction, or to relocate him in other city employment, not an admission that employee was disabled.

Solon v. Kaplan, 398 F.3d 629, 95 FEP 289 (7th Cir. 2005). Panel: FLAUM, Bauer, Williams. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Partner in law firm was "employer," not "employee," under 42 U.S.C. § 2000e(f), according to standards set by Supreme Court in Clackamas Gastroenterology (e.g., could only be voted out of partnership, owned one-quarter share, trustee of 401(k)). Claims that other partners regularly flouted partnership rules were unsubstantiated or immaterial.

Banos v. City of Chicago, 398 F.3d 889, 95 FEP 431 (7th Cir. 2005). Panel: EVANS, Easterbrook, Kanne. Claims on Appeal: Title VII race promotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Minority police sergeants claimed that There-step promotion process had disparate impact on minority candidates. District court did not abuse discretion by denying plaintiffs leave to withdraw admissions under Fed. R. Civ. P. 36(b), in which plaintiffs admitted the validity of the written qualifying test and the assessment exercise under Title VII. Withdrawing admissions would not likely affect the outcome of the case, given the case law in this area, and would prejudice the defendant by allowing plaintiffs to revive a claim abandoned years earlier.

Preston v. Wisconsin Health Fund, 397 F.3d 539, 95 FEP 234 (7th Cir. 2005). Panel: POSNER, Manion, Rovner. Claim on Appeal: Title VII reverse discrimination termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Replacement of male director of clinic with CEO's paramour not sex discrimination, where CEO would have presumably treated female director the same way. Bare fact that he was replaced by woman and more women than men received large raises insufficient to prove sex discrimination. Discrimination in favor of women ordinarily, though not invariably, concern affirmative action plans or traditional "women's work" such as nursing. No special circumstances here imply discrimination.

Flowers v. Columbia College Chicago, 397 F.3d 532, 95 FEP 237 (7th Cir. 2005) Panel: EASTERBROOK, Ripple, Evans. Claims on Appeal: Title VII retaliation claim. Disposition Below: Rule 12(b)(6) dismissal for failure to state a claim [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee may state a claim against an employer for retaliatory termination for filing a charge against a different employer. That employee may have misidentified employer in his charge does not affect its status as a "protected activity." In dicta, court suggests that plaintiff may have correctly identified employer, where he was loaned out from college to public school to serve as a counselor, school refused to provide a religious accommodation, and plaintiff filed charge against school (on borrowed servant or joint employer theory).

Jordan v. City of Gary, Indiana, 396 F.3d 825, 95 FEP 136 (7th Cir. 2005). Panel: COFFEY, Bauer, Posner. Claims on Appeal: 1. ADEA and Title VII promotion (sex). 2. ADEA and Title VII discipline (sex). 3. ADEA and Title VII constructive discharge (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Plaintiff failed to present sufficient circumstantial evidence under direct method to raise inference of discrimination. Although two other women in their 60's were reassigned, denied budgeted salary increases and otherwise mistreated, these actions took place against a backdrop of reorganization that also disadvantaged employees under age 40. Plaintiff also failed to make out prima facie case on promotion claim (two alleged comparables were respectively within plaintiff's protected class or didn't have disciplinary demerits). Even if plaintiff made out prima facie case, persons who were promoted were at least equal in criteria for promotion to plaintiff (e.g. management skills). 2. On discipline claim, plaintiff failed to identify comparable employee (only employee identified was her superior who was promoted over her), and plaintiff also failed to show that each of There disciplinary actions were unfounded and therefore pretextual. 3. Plaintiff was terminated formally, so constructive discharge claim did not lie.

Mannie v. Potter, 394 F.3d 977, 16 A.D. Cases 641 (7th Cir. 2005). Panel: ROVNER, Wood, Sykes. Claims on Appeal: 1. Rehabilitation Act discrimination. 2. Rehabilitation Act harassment. 3. Rehabilitation Act discrimination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Evidence that manager viewed EEOC charge negatively was insufficient to establish direct proof of intent. Moreover, plaintiff failed to establish adverse employment action regarding work hours (i.e. she was always scheduled for sufficient hours) or that others similarly situated were treated differently than plaintiff. 2. Assuming that harassment claims may be made under Rehabilitation Act, plaintiff did not witness most of the alleged harassing events, and those that she did witness were insufficiently severe and too isolated to sustain a hostile work environment claim. Nor did plaintiff establish that the harassment affected a term or condition of employment. 3. Exclusion at trial of alleged discriminatory statements by supervisor made There years prior to claim affirmed on relevance grounds.

Loughman v. Malnati Organization, Inc., 395 F.3d 404, 95 FEP 92 (7th Cir. 2005). Panel: EVANS, Posner, Manion. Claims on Appeal: Title VII sex harassment. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff was repeatedly propositioned by co-workers and forcibly grabbed on There occasions (once in walk-in cooler, where an employee grabbed her chest and tried to put his hand down her pants). District court erred in finding, while evaluating duty of due care, that employer maintained effective sex harassment policy as a matter of law, where C considering severity of incidents C plaintiff presented genuine issue of fact that employer should have done more than talk to co-workers after first attack. Although employer spoke to male employees some 10-20 times about how to treat women employees, jury could decide that the time for issuing warnings had expired and other disciplinary steps ought to be taken. Managers comment that harassment was inevitable because co-workers were Latinos was evidence that employer thought efforts to prevent harassment would be futile. Plaintiff's account was also corroborated by other harassment victims. Severity of incidents were sufficient to prove "hostile work environment."

O'Neal v. City of Chicago, 392 F.3d 909, 94 FEP 1821 (7th Cir. 2004). Panel: FLAUM, Manion, Williams. Claims on Appeal: Title VII/§ 1981, 1983 race and sex transfer. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Reassignment from administrative sergeant in the Narcotics Unit to the position of >beat sergeant' in one of the districts not adverse employment action, where plaintiff failed to prove that the transfer either (1) had a material effect (such as a loss of compensation -- lost of flex time and vacation pay were not enough) or (2) compromised plaintiff's future in the force (that is, negatively affected her reputation in the department or changed her reporting status.

Branham v. Snow, 392 F.3d 896, 16 A.D. Cases 454 (7th Cir. 2004). Panel: RIPPLE, Cudahy, Rovner. Claims on Appeal: Rehabilitation Act failure to promote. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee, an IRS revenue agent, sought promotion to a position as criminal investigator. He had diabetes which, while under medical control, placed constraints on his diet (e.g. "never free to eat whatever he pleases because he risks both mild and severe bodily reactions"). Panel found that diabetes, even when under control, may constitute a disability when it substantially limits the major life function of eating (reversing the district court's contrary holding). Summary judgment on affirmative defense of "direct Thereat" reversed. Panel reiterated Circuit law that burden of proof on "direct Thereat" was on employer. The record, viewed in the light most favorable to the employee, established that the employee had never suffered a hypoglycemic episode on the job, that the symptoms of his condition were not incapacitating, and there was no objective evidence that they would pose a risk to the employee or others.

Filipovich v. K&R Express System, Inc., 391 F.3d 859, 94 FEP 1564 (7th Cir. 2004). Panel: WOOD Bauer, Posner. Claims on Appeal: ADEA termination and retaliation. Disposition Below: Judgment following a jury trial ($1,500 in back pay plus $126,423 in punitive damages, remitted to $25,000) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Plaintiff was a dockman who unsuccessfully sought promotion to a driving position. When he lost the promotion, and after he filed an EEOC charge alleging age discrimination, he became the subject of disciplinary actions (including suspensions) for improper loading of freight. A jury found for plaintiff on both claims The trial judge granted judgment as a matter of law on the age discrimination claim, but upheld the retaliation verdict. On age claim, although the jury could have believed that the company denied plaintiff training that would have enabled him to qualify for the promotion, the plaintiff failed to identify any younger employee who received training. On the retaliation claim, the employer's chief defense was a sheaf of manifest sheets signed by the plaintiff, indicating errors in loading and unloading freight. The plaintiff's response -- that the manifest sheets were simply fraudulent -- was unproven by record evidence.

Hunt-Golliday v. Metropolitan Water Reclamation District of Greater Chicago, 390 F.3d 1032, 16 A.D. Cases 360 (7th Cir. 2004). Panel: KANNE, Posner, Williams. Claims on Appeal: ADA and Title VII termination. Disposition Below: Dismissal under Rule 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Decision to discharge plaintiff pursuant to state court order affirming Civil Service Board's termination decision not motivated by discrimination.

Stepney v. Naperville school Dist. 203, 392 F.3d 236, 94FEP 1473 (7th Cir. 2004). Panel: FLAUM, Manion, Williams. Claims on Appeal: Title VII/ADA transfer (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff school bus driver suffered loss of seniority under collective bargaining agreement (thus affecting compensation) when he accepted temporary transfer to non-driving position in different bargaining unit following return to work from disability leave. Claim accrued when transfer occurred, more than 300 days before charge was filing, rendering claim untimely. Time was not extended by (1) informal efforts to resolve objection to loss of seniority; (2) continuing violation based on failure to remedy an unlawful condition; or (3) Bazemore -type challenge to allegedly discriminatory pay system.

McGoffney v. Vigo County Division of Family and Children, Family and Social Services Administration, 389 F.3d 750, 94 FEP1485 (7th Cir. 2004). Panel: FLAUM, Bauer, Posner. Disposition Below: Title VII promotion (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Plaintiff's EEOC charge held to cover only one instance of non-promotion, because, despite apparent references to multiple incidents in charge, date box on form indicated only a single denial of promotion on "7-7-00," and made no mention of 1999 incidents.

Luckie v. Ameritech Corp., 389 F.3d 708, 94 FEP1351 (7th Cir. 2004). Panel: BAUER, Easterbrook, Manion. Claims on Appeal: 1. Title VII harassment (race). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Events were not specifically racial in purpose or based on race (comment that supervisor wanted to "change the complexion" of the department, calling plaintiff a dunce, criticisms of her performance), nor were they severe or pervasive. 2. Plaintiff unable to establish that supervisor who placed plaintiff on performance plan and later fired her knew about her complaints of racial discrimination. Moreover, even under indirect method of proof, plaintiff was unable to show that she was performing up to employer's legitimate expectations.

Cigan v. Chippewa Falls school Dist., 388 F.3d 331, 16 A.D. Cases 193 (7th Cir. 2004). Panel: EASTERBROOK, Wood, Evans. Claims on Appeal: ADA constructive discharge. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Supervisor's notice of intention to recommend against renewal of 30-year veteran teacher's employment not a constructive discharge, where outcome of process was uncertain. In any event, employer did not "regard" plaintiff as disabled; only such evidence was employer's furtive attempts at initiating "interactive process," which did not imply that employer in fact conceived of plaintiff as "disabled." Court notes circuit split over whether employer who regards employee as disabled must offer such employee reasonable accommodation.

Butts v. Aurora Health Care, Inc., 387 F.3d 921, 94 FEP 1217 (7th Cir. 2004). Panel: EVANS, Williams, Sykes. Claims on Appeal: Title VII promotion (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Defendant's affidavits that set out factual basis for pertinent evaluation (that all six candidates selected for promotion were superior to plaintiff) admissible on summary judgment, and rebutted prima facie case, as well as establishing that decision was not pretextual. Denial of leave to amend complaint after appointment of counsel on basis of undue delay not an abuse of discretion.

Smith v. Northeastern Illinois Univ., 388 F.3d 559, 94 FEP 1295 (7th Cir. 2004). Panel: WILLIAMS, Bauer, Wood. Claims on Appeal: 1. Title VII and § 1981 harassment(race). 2. Title VII and § 1981 retaliation. 3. Title VII and § 1981 discrimination (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. In multi-plaintiff case, one plaintiff's work environment to be objectively hostile where C although the word "nigger" was used C slur was heard only once by plaintiff, and other alleged incidents she did not witness. Impact of so-called "second-hand harassment" not as great on persons who did not hear it directly, where a plaintiff is not the intended target of the statements. 2. In retaliation-by-hostile-work-environment claim, alleged addition al events did not create a "hostile work environment.: (1) supervisor intimidated employee when he gave her a ride home in March 1997, inquiring about a complaint lodged against him and saying that he "was going to do something about it"; (2) one plaintiff received an anonymous cryptic letter slipped under her office door in November 1997, which she found Threatening; and (3) in February 1998, supervisor pointed to two plaintiffs at a meeting saying "those two will be losing their homes." 3. No new trial for plaintiffs. Their arguments were undeveloped on appeal and district court did not abuse discretion at trial by admitting collateral witness with plaintiffs' assent.

Herron v. DaimlerChrysler Corp., 388 F.3d 293, 94 FEP 1219 (7th Cir. 2004). Panel: MANION, Bauer, Easterbrook. Claims on Appeal: 1. § 1981 adverse evaluation, denial of raise (race). 2. Title VII and § 1981 retaliation. 3. Title VII and § 1981 harassment(race). 4. Title VII and § 1981 constructive discharge (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Although negative evaluation that led to denial of automatic raise may be adverse employment action, plaintiff's entire record, including past disciplinary record for behavior problems, showed he was not meeting employer's reasonable expectations. Co-workers impressions and prior year's evaluation by another supervisor do not cast doubt on employer's honest belief. Alternatively, employer's non-discriminatory reasons behind its evaluation not rebutted by plaintiff. 2. No adverse employment action in (1) a two-month delay by DaimlerChrysler in the payment of certain overtime; (2) his transfers between various departments and shifts; (3) DaimlerChrysler's refusal to pay him for his absence on January 13-14, 1999. Moreover, company records indicate that plaintiff's appraisal was lowered more than a month before he made any complaints. 3. Transfers, a late overtime payment, his salary, and difficulties with managers not shown to be racially motivated, and in any event were not objectively hostile. 4. Circumstances not intolerable where plaintiff left voluntarily several months after filing his last EEOC complaint and after having secured a comparable job elsewhere.

Sartor v. Spherion Corp., 388 F.3d 275, 94 FEP 1153 (7th Cir. 2004). Panel: SYKES, Easterbook, Evans. Claims on Appeal: Title VII and '1981 termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Under direct method of proof, fact that the sole black employee at a particular management level was not retrained during RIF does not furnish direct evidence that the company was motivated to fire her because of her race. Under indirect method, white employees who were retrained were not directly comparable in all material respects (e.g., one had more experience, the other was involved with a product line that the company believed was of future importance to the company's financial security).

Dandy v. United Parcel Service, Inc., 388 F.3d 263, 94 FEP 1156 (7th Cir. 2004). Panel: WILLIAMS, Flaum, Wood. Claims on Appeal: 1.§ 1981 harassment (race and sex). 2. Title VII and § 1981 promotion (race and sex). 3. § 1981 pay (race and sex). 4. Title VII and § 1981 retaliation Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Owing to Jones v. R.R. Donelley decision and pendency of class action (later dismissed), § 1981 claim period continued back to 1994-97. No evidence of racially charged comments after the limitations period commenced; use of the words "lazy," "tiger," and "ignorant" not shown to be gender or race-based. Use of racial epithets were isolated and occurred more than ten years before suit began, insufficient to constitute hostile work environment.2. Title VII claims stretch back only to 1999. Plaintiff filed complaint more than 90 days after receiving her right-to-sue letter on her first two charges; sh can only rely on her third charge filed in 2000. Plaintiff failed that she was qualified for any promotion during this period. Fact the white males were promoted during same period did not create contested issue of fact about how plaintiff was rated (she was classed a "B" under the company's promotion system, which placed her behind "A"s in priority for open promotions) or about candidates she claimed were "similarly situated."3. No proof regarding similarly-situated white male employees (e.g. relative salaries, qualifications, experience, tenure, or education).4. Denial of lateral transfers were not "adverse employment action."

Firestone v. Parkview Health System, Inc., 388 F.3d 229, 94 FEP 1164 (7th Cir. 2004). Panel: WILLIAMS, Kanne, Rovner Claims on Appeal: Title VII retaliation claim. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff (a recently-converted Catholic) took flack from her supervisor about her religion, and plaintiff in turn criticized her boss's sexual orientation to a co-worker (in an after-hours conversation that, following the normal gravitational force of office back-chat, arced back to the supervisor). The conflict between boss and subordinate pitched over the plaintiff's performance evaluation. Plaintiff, believing the evaluation to be tainted by religious prejudice, complained to HR. The employer subsequently placed plaintiff on leave -- citing the plaintiff's off-hour comments against her boss's sexual orientation as violating the company's anti-bias policy -- and told her to use her vacation time look elsewhere in the company for a different job. Because the company could not offer her a comparable job, she was eventually terminated. On this record, the panel found genuine issues of material fact about whether plaintiff (1) engaged in a protected activity (complaining about her job evaluation); (2) endured an adverse job action (removal from work, with no offer to return to a comparable position); (3) identified similarly-situated employees (her supervisor and two other employees were not disciplined under the anti-bias policy that plaintiff was charged with violating, despite that they had arguably committed the same wrongs); and (4) established pretext (the employer's explanation of the above-events was critically under-documented and inconsistent, even in the briefing for summary judgment).

Hottenroth v. Village of Slinger, 388 F.3d 1015 (7th Cir. 2004). Panel: COFFEY, Ripple, Kanne. Claims on Appeal: 1. Title VII retaliation. 2. Title VII harassment (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Title VII retaliation and sex harassment claims. Retaliation claim broke into four distinct events. (1) Plaintiff informed by supervisor that she would not recommend her for journeyman card (occurred There months before plaintiff filed her first sex discrimination complaint, record lacks evidence that supervisor in fact carried out that Thereat before plaintiff's termination, and withholding of recommendation is not an adverse employment action). (2) Plaintiff's termination (termination was not an adverse employment action, or alternatively was not motivated by retaliation, as it was admittedly caused by plaintiff's insubordination and erratic behavior). (3) Refusal to create new position (not an adverse employment action). (4) Failure to train (waived by plaintiff's failure to present to district court; alternatively, not an adverse employment action). 2. Harassment claim was not within scope of EEOC charge because charge nowhere recites specific evidence of a hostile work environment.

Olson v. Northern FS, Inc ., 387 F.3d 632, 94 FEP 1099 (7th Cir. 2004). Panel: EVANS, Easterbrook, Sykes. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee (a crop salesman) with 41 years in the company was replaced summarily with a 22-year-old with no prior experience, who suffered (by the company's admission) "substandard" productivity. The plaintiff's supervisor once told him (five months before his separation) that his age (59) was hurting him in the industry. The district court found this remark insufficiently direct to warrant a trial. Panel holds that the entire record presented a genuine issue of material fact about pretext.

Miles v. State of Indiana, 387 F.3d 591, 94 FEP 1105 (7th Cir. 2004). Panel: RIPPLE, Manion, Williams. Claims on Appeal : Title VII retaliation. Disposition Below: Judgment for plaintiff after a jury trial, but injunctive relief and front pay denied [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Plaintiff sergeant prevailed before jury on claim that he was retaliated against after complaining of racial discrimination ($50,000 compensatory verdict), but district court denied injunctive relief other than to reassign plaintiff supervisory duties. Judgment affirmed. Because special jury interrogatory was ambiguous about basis for verdict (whether jury found reassignment, failure to promote or both were motivated by retaliation), district court in its discretion could conduct . Other injunctive relief requested (posting of anti-retaliation policy, bar on future retaliation) mooted by change in command lack of evidence of continuing retaliation.

Koszola v. Board of Education of the City of Chicago, 385 F.3d 1104, 94 FEP 897 (7th Cir. 2004). Panel: WOOD, Ripple, Manion. Claims on Appeal: Title VII hiring (reverse discrimination). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Title VII reverse discrimination hiring. Where employee twice admitted in district court statement of uncontested fact that she could not identify comparable minority candidates who were hired, although she also submitted counter-statement and affidavit that did identify such candidates, district court was within its discretion to credit admission over contradictory counterstatement. Alleged admission by principal that school was "forced" to hire minority teacher lacked foundation (i.e., identity of speaker or other underlying facts). Indirect prima facie case fails because plaintiff could not identify minority candidates more favorably treated.

Kriescher v. Fox Hills Golf Resort and Conference Center, 384 F.3d 912, 94 FEP 1007 (7th Cir 2004). Panel : ROVNER, Flaum, Manion. Claims on Appeal : Title VII (sex) and ADEA harassment and termination. Disposition Below : Summary judgment (defendant). Outcome on Appeal: Affirmed (defendant). Grounds: Occasional lewd acts at the worksite (which plaintiff herself did not witness) did not create environment uniquely hostile to women or persons over 40. On termination claim, plaintiff failed to identify persons similarly situated who were not terminated despite violating the same work rules.

Boyd v. Illinois State Police, 384 F.3d 888, 94 FEP 839 (7th Cir. 2004). Panel: WOOD, Flaum [POSNER, concurring]. Claims on Appeal: Title VII and section 1983 discrimination (race) and retaliation. Disposition Below: Summary judgment and judgment as a matter of law (defendant). Outcome on Appeal: Affirmed (defendant). Grounds: Eighteen plaintiffs were forensic scientists challenging decision to transfer them from Chicago Police Department (CPD) to Illinois State Police (ISP), leading to reduced compensation. While judge erred in giving jury supplemental instruction during deliberation (in Desert Palace mixed-motive case) that race had to be "catalyst which prompted the employer to take the adverse employment action, "error was harmless because plaintiffs failed to show that race was ever a factor in setting their salaries. Challenge to method of integrating the CPD officers into ISP under state law and credits for service not discriminatory. Only way to enforce state law directly against public official would be mandamus action, was not undertaken here. Right to be free from retaliation not directly actionable under equal protection, although it can be pursued under First Amendment or Title VII.

Franklin v. City of Evanston, 384 F.3d 838, 94 FEP 921 (7th Cir. 2004). Panel: CUDAHY, Posner, Rovner. Claims on Appeal: Equal Protection and '§ 1981, 1983 termination (race). Due process claims (not discussed here). Disposition Below: Summary judgment and judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff (African-American employee) claimed he was fired under policy of firing employees with arrest records or (alternatively) marijuana possession charges (plaintiff was arrested but never prosecuted for possession offense). Apart from the fact that plaintiff failed to establish this policy, plaintiff could not make claim of disparate impact under equal protection, which requires proof of discriminatory intent. Disparate treatment fails because plaintiff could not identify other white employee who was not terminate under comparable circumstances. Comparison to white employee with DUI charge not valid because (1) other African-American employees with DUI in background were not terminated, and (2) different supervisors were involved.

Holmes v. Potter, 384 F.3d 356, 94 FEP 737 (7th Cir. 2004). Panel: BAUER, Flaum, Evans. Claims on Appeal: Title VII discrimination and retaliation (race). Breach of settlement agreement (not discussed here). Disposition Below: Summary judgment (defendant). Outcome on Appeal: Affirmed (defendant). Grounds : Use of term "saved grade" in preexisting settlement agreement with agency did not require Postal Service to confer upon plaintiff a non-competitive transfer; district court could find that extrinsic evidence (USPS policies, testimony of another employee) established that plaintiff was required to submit an application and compete for transfer. Regarding denial of transfer, although plaintiff met prima facie burden for discrimination and retaliation, decision makers were entitled to consider addition al factors in candidates' backgrounds not specifically listed in vacancy announcement. Other minority applicants for job not selected were not clearly superior to white finalists. Jury demand for trial against U.S. properly denied on sovereign immunity basis.

Lust v. Sealy, Inc., 383 F.3d 580, 94 FEP 645 (7th Cir. 2004). Panel: POSNER, Bauer, Williams. Claims on Appeal: Title VII promotion. Disposition Below: Judgment after a jury trial; $100,000 compensatory and $1,000,000 punitive damages (capped at $273,000 punitive, $27,000 compensatory damages); $1,500 back pay [plaintiff]. Outcome on Appeal: Affirmed [plaintiff], but punitive award remitted to $150,000. Grounds: Plaintiff was not promoted into the first Key Account Manager's job available in Chicago office; younger male was promoted first. Finding of discrimination supported by record, including sexist remarks by manager (e.g. "it's a blonde thing," querying why she needed promotion if her husband could take care of her). Manager told her that he didn't consider recommending her for promotion because she had kids and he didn't think she'd want to relocate her family. Manager's attitude relevant because he caused male to be hired by not recommending plaintiff (rejecting causation analysis of Fourth Circuit). Evidence that employer rushed plaintiff into another promotion might violate FRE407 (remedial measures). Fact that main customer in Chicago was staffed by foul-talking men not a legitimate, non-discriminatory reason to deny plaintiff assignment to that office. District court erred in striking defense witness's clarification of testimony on redirect examination on relevance grounds, but exclusion was not prejudicial. "Blonde" remarks were admissible over stray- remarks objection. Redirect question about whether decision maker would have hired plaintiff if her manager had recommended her can be excluded as calling for speculation. Memos written by decision maker explaining his reasons for denying promotion were inadmissible hearsay, not covered by spontaneity exceptions (FRE803(1-(3)) or as business records (FRE803(6)). On damages, when faced with uncapped verdict amount, judge should determine maximum awardable compensatory damages, subtract that from $300,000 and denote the rest as punitives. Due process limits on punitive damage awards do not apply to Congressionally-capped damages. Here, though $273,000 punitive damages are excessive because company took prompt steps to remedy the discriminatory denial of the promotion.

Biondo v. City of Chicago, 382 F.3d 680, 94 FEP 513 (7th Cir. 2004). Panel: EASTERBROOK, Manion [WILLIAMS, concurring]. Claim on Appeal: Title VII promotion (reverse race discrimination). Disposition Below: Judgment after a jury trial [plaintiffs]. Outcome on Appeal: Liability affirmed [plaintiffs], but damages vacated. Grounds: Current and former white firefighters and engineers challenged lieutenant promotions up to 1991. City did not establish compelling need for assigning 29% of promotions to blacks and Latinos (to avoid disparate impact of written exam in promotions under federal regulation 29 C.F.R. § 1607.4), where City did not claim that plan was otherwise supported by remedial purpose or quest for diversity. Civil Rights Act of 1991 also forbid the use of such dual lists after 1991. City could have created bands reflecting the standard error of measurement and selected randomly from those bands, rather than using test in strict rank-order by test scores. Damage awards, on the other hand, were clearly erroneous because juries found that most of the plaintiffs were sure to be promoted, even though most in fact failed to achieve subsequent advancement through competitive processes. District court ought to have applied "loss of a chance" method to handle probabilistic damages. Record also lacks any evidence comparing plaintiffs to other firefighters who received promotions. At most, the record would support six promotions out of the group (and, coincidently, six plaintiffs did eventually receive such promotions, though deferred). Awards for mental distress (ranging up to $232,000) were also excessive, using $300,000 cap under 1991 Civil Rights Act as a datum. Twelve-year front pay award also excessive.

McKenzie v. Milwaukee County, 381 F.3d 619, 94 FEP 532 (7th Cir. 2004). Panel: ROVNER, Ripple, Kanne. Claim on Appeal: Title VII (and Equal Protection) sex harassment and demotion claims. First Amendment retaliation claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Plaintiff was a sheriff's deputy. "Second-hand" harassment that occurred with other women and unfriendly behavior toward plaintiff did not amount to objectively hostile work environment. Overbearing supervision of plaintiff not shown to be motivated by sex, where same boss treated men the same way. Alleged discriminatory transfer (which deprived her of undercover assignments) not a materially adverse employment action, where sheriff's deputies were regularly reassigned and pay, title and benefits did not change; alternatively, plaintiff did not identify a male officer treated more favorably.

McPherson v. City of Waukegan, 379 F.3d 430, 94 FEP 247 (7th Cir. 2004). Panel: CUDAHY, Posner, Rovner. . Claim on Appeal : Title VII sex harassment and constructive discharge. ). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Defendant supervisor's conduct escalated from occasional crude comments, to placing his hands on and inside of her blouse, to sexual assault. Plaintiff did not officially complain to the city, but (through a friend who was related to the village mayor) word was related to the government and the supervisor was forced to resign. (He later plead guilty in criminal proceedings to attempted criminal assault.) She received 30 days paid leave, was rebuffed in her attempt to obtain 90 days and resigned. Court found that hostile work environment did not exist until physical touching first occurred (comments were not severe or pervasive under Circuit's Baskerville standard). As to the touchings and assault, plaintiff failed to present a genuine issue of material fact regarding either constructive discharge or the Faragher/Ellerth affirmative defense. Under the Supreme Court's decision in Suders, harassment would have to be so egregious that plaintiff would be compelled to resign, and because supervisor departed under fire immediately, plaintiff had no evidence that the hostile work environment would continue. That village also packed up plaintiff's belongings and filled her position temporarily does not present triable issue, because these steps were in response to her extended and unauthorized absence (and village had tried to get plaintiff to come back to work). As for affirmative defense, plaintiff only complained belatedly, there was no evidence that defendant was on constructive notice of events (which occurred essentially behind closed doors), and employer maintained effective anti-harassment policy. Tort claims preempted by Illinois Workers Compensation Act or covered by Illinois Tort Immunity Law.

Harvey v. Office of Banks and Real Estate, 377 F.3d 698, 94 FEP 550 (7th Cir. 2004). Panel: ROVNER, Ripple, D. Wood. Claims on Appeal: Title VII demotion, failure to promote and retaliation (race). Disposition Below: Judgment after a jury trial; $300,000 compensatory damages and $4170 back pay for plaintiff Harvey, $100,000 compensatory damages and $30,000 back pay for plaintiff King [plaintiffs]. Outcome on Appeal: Affirmed [plaintiffs]. Grounds: Defendant challenge only sufficiency to the evidence and excessive damages. Judgments will not be reversed on ground that plaintiffs failed to make out prima facie case, because trial moots such a challenge. Plaintiff Harvey demonstrated at trial that decision to demote him was taken in defiance of normal practice, that comparable white employees concurred that the job reclassification (which did not reduce pay) constituted a real demotion in responsibility, comparable white employees were not reclassified, the supervisor had history of making derogatory racial remarks and that the non-discriminatory reasons advanced by the defendant were unsubstantiated, oddly timed or contradictory. In plaintiff Clarke's case, jury considered not only plaintiff's relative qualifications for new position (against white candidate), but other background evidence (lack of credibility in explanations, deviation from agency policy to promote white employee at lower level over plaintiff). Damages upheld; each plaintiff presented sufficient objective evidence that they suffered mental distress (e.g. treatment for depression and other physical ailments, humiliation inflicted by supervisors), and damages were within range of comparable verdicts in circuit.

Sembos v. Philips Components, 376 F.3d 696, 94 FEP 83 (7th Cir. 2004). Panel: MANION, Ripple, D. Wood. Claim on Appeal: ADEA termination. Breach of contract and promissory estoppel (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Plaintiff, who was absorbed into newly-merged entity and eventually terminated, failed to show that he was qualified for any of the eight open positions for which he applied. Alleged admission by manager not probative where manager did not specify which position plaintiff was "overqualified" to fill. Even if plaintiff survived prima facie stage, plaintiff could not rebut legitimate, non-discriminatory reason (proffered by two hiring managers) that plaintiff lacked qualifications based on credentials and relevant work experience. Conclusory statements by plaintiff that he could be qualified for positions in another division with addition al training does not create a genuine issue of material fact on pretext. Plaintiff also failed to apply for 89 other positions, so no inference of discrimination presented. Purported age-biased statements not attributable to decision makers.

Hudson v. Chicago Transit Authority, 375 F.3d 552, 94 FEP 151 (7th Cir. 2004) . Panel: BAUER, Easterbrook, Ripple. Claim on Appeal: 1. Title VII promotion (race). 2. Title VII retaliation. Breach of contract (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Plaintiff did not present prima facie case for two promotions because he did not apply for jobs and did not demonstrate that the job posting was deliberately misleading. For other promotions, defendant stated that those who were promoted demonstrated greater flexibility and dedication to job than plaintiff, and plaintiff did not meet standard for proving that his qualifications were substantially greater than the successful candidates. 2. Negative and allegedly retaliatory comments by managers were too vague and remote in time to constitute direct evidence; under pretext method, plaintiff failed to point to others similarly situated who were treated more favorable with respect to promotions.

Gusewelle v. City of Wood River, 374 F.3d 569, 94 FEP 159 (7th Cir. 2004) . Panel: BAUER, Easterbrook, Kanne. Claim on Appeal: ADEA termination. Due process claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal Affirmed [defendant]. Grounds: Plaintiff mechanic, who was terminated by village when it learned that he was not abiding by its residency requirement, was not allowed to reapply for job on promise that he would resume full-time residency there and was replaced by 25-year younger individual. Assuming that plaintiff met the prima facie case, plaintiff raised no issue of pretext, where (1) there was no record that the decision-makers had previously known about plaintiff's residency violation; (2) when it learned about the violation, the village retrained a third-party investigator to check out the story before it charged him with a violation; (3) any violation of the residency requirements by ordinance mandated termination; (4) although defendant challenged the village's charge, there was a valid basis for the village to conclude that plaintiff was in violation; (5) plaintiff's statements to the village about his residency were misleading.

Tice v. American Airlines,373 F.3d 851 (7th Cir. 2004). Panel: POSNER, Easterbrook, Kanne. Claim on Appeal: ADEA failure to transfer. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Affirming decision of System Board of Adjustment that pilots who became ineligible to fly owing to age-60 FAA requirement had no right under collective bargaining agreement to occupy flight officers' seats, where airline consistently followed "up or out" policy in order to use flight officer seat for training future pilots. See also Tice v. American Airlines, 288 F.3d 313 (7th Cir. 2002).

Larimer v. International Business Machines Corp., 370 F.3d 698, 15 A.D. Cases 1070, (7th Cir. 2004). Panel: POSNER, Bauer, Easterbrook. Claim on Appeal: ADA termination claim; ERISA claim (not discussed here). Disposition Below Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff contended under "association" section (42 U.S.C. § 12112(b)(4)) that he was fired because his twin daughters were born premature with serious medical conditions. Court rejects indirect pretext method of proof under this section (noting arguable split with Tenth Circuit), opting instead for tripartite standard that employer may be liable under this section if it commits adverse employment action because of (1) expense (cost of treatment to employer); (2) disability by association (e.g. family member has communicable disease or genetic disorder that might have been transmitted to plaintiff); or (3) distraction (employer presumes that employee will be less attentive at work because of taking care of a family member's disability). None of these scenarios applied to the present case. Court notes in dicta that daughters may not be "disabled" under ADA because their present health condition was good.

Little v. Illinois Dept. of Revenue, 369 F.3d 1007, 93 FEP 1555 (7th Cir. 2004). Panel: MANION, Posner, Ripple. Claim on Appeal: Title VII race termination and retaliation; First Amendment retaliation claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff served as Revenue Special Agent for state aboard riverboat casino. Employer investigated plaintiff for engaging in an altercation with a casino employee; he was terminated based on finding that plaintiff lied during the investigation, but then reinstated by arbitrator (without back pay) on grounds that he had cooperated with investigation and had 15 years of service with the agency. Using indirect pretext method of proof, plaintiff failed (1) on his prima facie case to find employees punished by the same decision maker; and (2) to establish pretext, because asserted reason for termination (the investigative report) furnished agency's honest belief that plaintiff had engaged in misconduct. In particular, the plaintiff refused to answer investigator's question about contradiction between plaintiff's contention that altercation lasted mere seconds and surveillance videotape revealing a 14-minute meeting between plaintiff and casino employee. Although plaintiff contended that two managers did not honestly believe the report, neither was either functionally or formally a decision maker with respect to plaintiff's termination

Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 15 A.D. Cases 961 (7th Cir. 2004). Panel: MANION, Flaum, Williams. Claim on Appeal: ADA termination claim. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not err in striking plaintiff's expert report, where proposed expert (retrained to evaluate whether plaintiff engineer could continue to perform essential functions of job with certain lifting and related medical restrictions) did not review plaintiff's deposition testimony, did not offer opinion on whether plaintiff could repair several pieces of machinery and did not acquaint herself with several pieces of machinery (or witness them being repaired) during her plant tour. District court did not abuse discretion in striking half of plaintiff's responses to employer's statement of uncontested facts for failure to comply with local rules (e.g., plaintiff impermissible submitted addition al facts, failure to provide citations to the record). On the merits, plaintiff failed to show that he could perform the essential functions of his job. At most, his restrictions only allowed him to perform about half of the duties called for in his regular job; defendant not require to create new, lighter-duty position for plaintiff as maintenance "troubleshooter." Employer satisfied interactive process by meeting face-to-face with employee, and was not required to include employee's attorney or other persons.

Davis v. Con-Way Transp. Central Express, Inc., 368 F.3d 776, 93 FEP 1409 (7th Cir. 2004). Panel: KANNE, Easterbrook, Manion. Claim on Appeal: 1. Title VII termination. 2. Title VII retaliation Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Evidence that manager was overheard saying that he needed to "find a way to get rid of [plaintiff]" did not constitute direct evidence because it was made nine months before termination and manager was not decision maker; although that manager did recommend termination, manager's superiors made independent decision to terminate plaintiff based on economic considerations. Using indirect, pretext method, defendant conceded prima facie case but defended termination decision as part of economic decision based on turndown in business; nine other employees in same unit were terminated at the same time. Plaintiff's rebuttal (that economic reasons for termination were bogus, and that management disregarded seniority and rehire rights) did not cast doubt on employer's honest belief that it needed RIF, and that seniority only operated by job category rather than job unit. Alleged racial harassment at job unit not material to management's purely external decision to fire him. 2. Evidence that members of upper management referred to plaintiff as "problem child" or "problem person" not material because they were ambiguous statements (not clearly relating to complaints of discrimination) and were made by persons who had no input into termination decision. Under indirect method, plaintiff flunked prima facie case (failed to identify comparable) and again failed to demonstrate pretext regarding the termination decision.

Katerinos v. U.S. Dept. of Treasury, 368 F.3d 733, 93 FEP 1304 (7th Cir. 2004): Panel: KANNE, Posner, Easterbrook. Claim on Appeal: 1. Title VII "reverse discrimination" constructive discharge. 2. Title VII retaliation. Disposition Below 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Stayed. Grounds: 1. Plaintiff (a white male) failed to demonstrate special background circumstances supporting "reverse" discrimination inference. 2. Timely filing of Rule 59(e) motion by plaintiff deprived court of appellate jurisdiction over retaliation claim.

Hoffman v. Caterpillar, Inc ., 368 F.3d 709, 15 A.D. Cases 894 (7th Cir. 2004): Panel: KANNE, Posner, Easterbrook. Claim on Appeal: ADA failure to train. Disposition Below: Judgment after a jury verdict [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Motion in limine that limited both side's experts to testify only about the ability of one-armed employee generally to operate high-speed scanner (and not the plaintiff in particular) not an abuse of discretion, where jury could view videotape of plaintiff actually operating machinery and expert testimony would not be helpful to jury. Alternatively, plaintiff failed to properly disclose videotape as basis for expert's opinion under Rule 26(a)(2)(B): defendant would have been prejudiced because disclosure came first day of trial, upset defendant's cross-examination strategy (predicated of expert's never having viewed plaintiff operating machine), and defendant would have had to retool its own expert testimony accordingly. Evidence of employer's productivity standards not erroneous, as it was relevant (and not unduly prejudicial) to issue of whether plaintiff could meet those standards. Failure to give missing witness instruction for employer's expert not error; employer's explanation for not producing expert (i.e. court's in limine order restricted testimony and rendered it superfluous) entirely reasonable. District court did not err in failing to recuse himself based on alleged ex parte contact and conduct at trial. Challenge to failure to instruct on punitive damages moot. See also Hoffman v. Caterpillar, Inc. , 256 F.3d 568 (7th Cir. 2001).

Lucas v. Chicago Transit Authority , 367 F.3d 714 (7th Cir. 2004). Panel: RIPPLE, Bauer, Easterbrook. Claim on Appeal: 1. Title VII 1997 race harassment, retaliation and discrimination claims. 2. Title VII 2001 race discriminatory discipline and retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. 1997 claims held time-barred. No equitable estoppel based on availability of internal review processes and management's reversal of internal recommendation that the evidence supported a claim of discrimination. Although plaintiff claimed that he learned about management's reversal in 2002, alleged discriminatory act had already occurred years earlier, and management's unwillingness to reverse action was not separate claim. No continuing violation; 1997 alleged events were either discrete acts; or (in the case of alleged harassment) were either based on undated, unspecific assertions or were unconnected to altercation in 2001. 2. Plaintiff proceeds by indirect, pretext method of proof. In discriminatory discipline cases, employee need not prove that he met employer's expectations, but must show that similarly-situated employees outside of protected group were treated more favorably. In each instance, plaintiff failed to meet this prima facie burden. That supervisor allegedly expressed racial animus against plaintiff was not material where discipline decision was made by another manager, and supervisor's input in decision was indirect. In addition, not all of the acts of discipline were "adverse employment actions."

Buie v. Quad/Graphics, Inc., 366 F.3d 466, 15 A.D. Cases 790 (7th Cir. 2004) . Panel: MANION, Flaum, D. Wood. Claim on Appeal: ADA/FMLA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff, who had AIDS, was suspended and terminated because of (1) absenteeism, following a "last chance agreement"; and (2) an altercation with a co-worker (severe enough to lead to a disorderly conduct conviction in state court), who plaintiff believed turned him into management on a work-rule violation. On summary judgment district court properly excluded evidence in plaintiff's affidavit of events that occurred after imposition of "last chance agreement" (on grounds of relevance), but erred in excluding evidence that he was ordered not to return to work within a week of the employer learning about his infection with AIDS. (District court also erred in holding that plaintiff could not rely on "self-serving" affidavit.) Nonetheless, plaintiff's substantive rights were not prejudiced because (1) the decision to fire him was substantially under way before he told employer about his disability; and (2) among the four comparable employees identified by plaintiff, There were supervised by other foremen and the fourth was the co-worker plaintiff argued with who the employer reasonably believed was not the aggressor.

Tart v. Illinois Power Co., 366 F.3d 461 (7th Cir. 2004) . Panel: ROVNER, Flaum, Bauer. Claim on Appeal: Title VII/'1981 race discrimination and retaliation claims. Disposition Below: Judgment as a matter of law/conditional grant of new trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Two African-American gas journeymen were reassigned to new duties during same period when they complained about employment discrimination. Jury found for plaintiffs. District court erred in directing a verdict for defendant. Viewing facts most favorably to plaintiffs, conditions of reassigned positions (to two-man trucks, digging ditches outdoors during winter under white supervisors who they previously trained) were objectively inferior to previous jobs on one-man truck and in meter shop (which were more independent, involved customer contact and skilled work, allowed access to computers and were stationed indoors), even though title and remuneration remained the same. Thus jury could have found that reassignment was adverse employment action. (Decision throughly surveys circuit law on this issue.) District court also erred in adopting employer's view that reassignments took place the day before plaintiffs complained about discriminatory discipline: supervisor had Threatened to watch plaintiffs closely after made filed complaints to human resources, and was reversed on disciplinary decisions by union and human resource manager. Supervisor also refused to reverse reassignment decisions after plaintiffs complained to human resources and subjected plaintiffs to 5-7 month "training" period. District court also failed to construe record in light most favorable to plaintiffs in concluding that original complaints to human resources were not about racial discrimination, an issue on which there was conflicting evidence. Jury could also have rejected employer's proffered explanation for reassignment (that one-man trucks were being phased out), because company in fact continued to use one-man trucks and evidence to the contrary came from interested witnesses whose testimony the jury could have rejected. Moreover, employer's own human resources manager concluded that the reassignments were punitive and race-based.

Bean v. Wisconsin Bell, Inc., 366 F.3d 451, 93 FEP 1116 (7th Cir. 2004). Panel: POSNER, Flaum, D. Wood. Claim on Appeal: Title VII race suspension and termination claim. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: African-American sales representative was suspended ten days for insubordination (among other things, refusing to conduct sales calls with her supervisor on the phone), and upon return to work abandoned a counseling session with management and a union representative, which the company deemed a resignation. Suspension held not to be discriminatory; plaintiff could identify no white employee with comparable misconduct who had been treated less severely. (Case remanded on employer's state law contract counterclaim, that plaintiff had to return $14,500 payment to employer because she resigned in less than two years' time; issue is whether plaintiff engaged in "constructive resignation" by refusing counseling and leaving conference room.)

Minch v. City of Chicago, 363 F.3d 615, 92 FEP 942 (7th Cir. 2004). Panel: ROVNER, Posner, Manion. Claim on Appeal: ADEA mandatory retirement program. Disposition Below: Denial of motion to dismiss for failure to state a claim, Rule 12(b)(6) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Municipality could reimpose age-63 retirement on firefighters under amendment to ADEA, 29 U.S.C. § 623(j). Plaintiffs failed to state a claim that mandatory retirement was imposed as subterfuge to violate other substantive provisions of act (e.g as act of retaliation or to discriminate against older employees in wages). Evidence of age stereotyping by city council in isolation does not support finding of subterfuge.

Williams v. Waste Management of Illinois, Inc., 361 F.3d 102, 93 FEP 1054 (7th Cir. 2004). Panel: KANNE, Manion, Evans. Claim on Appeal: Title VII/§ 1981 racial harassment, discrimination and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Co-worker harassment claim fails because employer was not negligent in discovering harassment (plaintiff did not immediately report harassment and only admitted it to his supervisor when approached twice), and took effective measures to end harassment (immediate verbal warning). Plaintiff contended that part of solution (requiring plaintiff to take breaks at a different location from harassers) prejudiced him, but was unable to demonstrate any material disadvantage. Even if employer did not take every step available to it under company policy to stop harassment, the measures taken did in fact bring the harassment to an end. No constructive discharge where actions allegedly taken by co-workers against plaintiff (e.g. inflicting negligent injury while changing a tire, improperly tightened bolt on equipment) were not shown to be racially motivated and plaintiff failed to complain to management in any event. Discrimination argument (that white woman's sex harassment complaints were taken more seriously than his race discrimination complaint) fails because plaintiff points to no adverse employment action.

Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 93 FEP 776 (7th Cir. 2004). Panel: KANNE, Flaum, Easterbrook. Claim on Appeal: Title VII sex harassment, discrimination, termination and retaliation. Disposition Below: Summary judgment [defendant] Outcome on Appeal: Affirmed [defendant]. Grounds: Exclusion of alleged incident involving other female employee properly excluded under FRE403 where evidence involved employee in different unit with different supervisor. Co-worker harassment claim fails because plaintiff cannot establish, for the most part, that vulgar language was directed at her because of sex; men complained of their behavior as well. Plaintiff also failed that she was subjected to comparatively more difficult working conditions. As for one harasser's remarks and behavior that was objectively targeted at plaintiff, plaintiff created genuine issue of material fact over whether the behavior was severe (e.g. "crude and shocking" sexual proposition by phone, harasser then allegedly locked her in room with other men and subjected her to conversation about oral sex). But employer cannot be held liable because it took prompt and effective remedial action: it took report, sent plaintiff home with pay, counseled harasser, and investigated complaint. With regard to discrimination, prima facie case fails because plaintiff could not locate comparable male employee hired on full-time (instead of probationary basis); alleged comparable males had more experience. Plaintiff could not establish adverse employment action regarding alleged disparate treatment in training and eligibility for overtime. Concerning termination, the only comparable males (with performance deficiencies) were also fired , so prima facie claim fails; alternatively, employer had legitimate non-discriminatory reason to terminate plaintiff (i.e. during probationary period, plaintiff was believed to have caused production line delays). For above-reasons, plaintiff also could not establish retaliatory motives for these actions.

Lang v. Illinois Department of Children and Family Services, 361 F.3d 416, 93 FEP 716 (7th Cir. 2004). Panel: ROVNER, Posner, Evans. Claim on Appeal: Title VII retaliation (discipline and termination). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff presented genuine issue of material fact by evidence under direct method of proof that after five years of positive performance reviews (including four months under present supervisor), string of frequent and often baseless disciplinary citations only began after plaintiff complained that cell phones were being issued only to white employees. Disciplinary actions particularly followed plaintiff's complaint about his supervisor's selective enforcement of the work rules against him (supporting theory that supervisor was setting him up to fail). Also questions of fact presented about when supervisor first learned of plaintiff's discrimination complaint and whether plaintiff adequately reported his absences (the avowed reason why he was terminated).

Cooper-Schut v. Visteon Automotive Services, 361 F.3d 421, 93 FEP 705 (7th Cir. 2004). Panel: BAUER, D. Wood, Williams. Claim on Appeal: Title VII race and sex harassment and constructive discharge. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although events described were conceivably severe or pervasive, company could not be held liable for co-worker harassment where many of the plaintiff's complaints were work-related disputes, rather than sex- or race-tinged insults, and plaintiff did not report them as racially or sexually motivated. Other incidents were not reported at all. On those occasions when plaintiff did report a racial or sexist remark, the company investigated them and counseled co-workers. No constructive discharge because conditions were not intolerable. District court properly admitted certain hearsay evidence only for limited purposes.

Garcia v. Village of Mt. Prospect, 360 F.3d 630, 93 FEP 446 (7th Cir. 2004). Panel: KANNE, Cudahy, Ripple. Claim on Appeal: Title VII/§ 1981 discrimination and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Summary judgment affirmed on grounds of claim preclusion, because plaintiff pursued duty-related disability benefits against police board in state administrative proceedings and subsequent appeal.

Mattson v. Caterpillar, Inc., 359 F.3d 885, 93 FEP 486 (7th Cir. 2004). Panel: FLAUM, Posner, D. Wood. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee who undertakes protected activity that is unreasonable and meritless, with a bad faith purpose, obtains no protection under anti-retaliation section.

Rhodes v. Illinois Dep't of Transportation, 359 F.3d 498, 93 FEP 491 (7th Cir. 2004). Panel: MANION [ROVNER and CUDAHY, specially concurring]. Claim on Appeal: Title VII sex discrimination, harassment and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff fails to establish prima facie case of discrimination, because challenged events (route change, assignment to road crew for There days, temporarily assigned truck with no heat, etc.) not adverse employment actions. Alleged harassment was not by supervisor, because individuals cited by plaintiff had no authority to alter the terms and conditions of plaintiff's own employment (although they did manage her work assignments). Agency not liable for harassment because it made a prompt and effective response to only complaint plaintiff made, and there was no record that the harassment was so pervasive and obvious that agency should have been on constructive notice. As for retaliation (plaintiff was incorrectly marked absent on her final day of employment), plaintiff's failure to follow instructions about reporting absence was a legitimate, non-discriminatory reason for that action.

Steinhauer v. DeGolier, 359 F.3d 481, 93 FEP 429 (7th Cir. 2004). Panel: MANION, Flaum, Easterbrook. Claim on Appeal: Title VII/§ 1983 sex discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff, a probationary employee, fails to make out prima facie case for discriminatory termination because (1) he was replaced by someone in the same protected group (male) and (2) female employee who was not fired for same offense as plaintiff was not probationary, and therefore not comparable. Evidence of alleged anti-male hostility by female manager did not create genuine issue of material fact when same manager criticized and belittled female employees, hired and retrained male staff, and record showed at most that she wanted to replace selected managers who were males, not replace them because of sex. Panel also applied same-actor inference; manager had hired plaintiff herself six months earlier.

Hrobowski v. Worthington Steel Co., 358 F.3d 473, 93 FEP 385 (7th Cir. 2004). Panel: MANION, D. Wood, [RIPPLE, concurring]. Claim on Appeal: Title VII/§ 1981 race harassment claim. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: While finding that plaintiff created genuine issue of material fact about severe or pervasive behavior (frequent use of the word "nigger"), plaintiff failed to argue in his opening brief on appeal, as required by Fed. R. App. P. 28(a)(9)(A), that the employer bore liability for co-worker harassment (e.g. negligent in failing to adopt a prompt and effective remedy). Record revealed no basis either that (1) plaintiff reported harassment or (2) employer was on constructive knowledge of harassment

Allen v. Int'l Truck and Engine Corp., 358 F.3d 469 (7th Cir. 2004). Panel: EASTERBROOK, Bauer, Kanne. Claim on Appeal: Title VII race harassment. Disposition Below: Class certification denied [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in denying Fed. R. Civ. P. 23(b)(2) certification for injunctive relief in case involving alleged plant-wide racial harassment for class of 350 employees. That each class member might have individual liability and relief issues to present to a jury does not transgress Seventh Amendment or inherently pose a manageability problem. On remand, court mandated certify an injunctive class and to reconsider whether there are common damages issues that could be certified as well.

EEOC v. Severn Trent Services, Inc., 358 F.3d 438, 93 FEP 251 (7th Cir. 2004). Panel: POSNER, Easterbrook, Kanne. Claim on Appeal: Title VII investigation under 42 U.S.C. § 2000e-5(f)(2). Disposition Below: Preliminary injunction [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: District court erred by enjoining employer from enforcing non-disparagement provision in consulting agreement against witness (a former employee), without entering findings under Fed. R. Civ. P. 65(d) and in light of EEOC's ability to subpoena the witness's testimony notwithstanding the agreement. Record was unclear whether parent company had or waived any right to enforce the agreement formally entered into with subsidiary/affiliate. Terms of injunction were too imprecise to enforce.

Griffin v. Potter, 356 F.3d 824, 93 FEP 277 (7th Cir. 2004). Panel: KANNE, Bauer, Posner. Claim on Appeal: ADEA discrimination and Title VII retaliation claims. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff did not suffer adverse employment action when agency changed her shift, transferred her to another facility, disciplined her, substituted a less-favorable evaluation, issued warning letters, assigned her addition al and more difficult work, refused her annual leave during peak periods and denied her a parking permit for four days. Supervisor's alleged hostility insufficiently severe or pervasive. Plaintiff forfeited claim to lost raises totaling $20,000 by not raising it until her response to summary judgment.

Kramer v. Banc of America Securities, LLC, 355 F.3d 961, 15 A.D. Cases 141 (7th Cir. 2004). Panel: MANION, Ripple, Williams. Claim on Appeal: ADA retaliation case. Disposition Below: Judgment after a bench trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Holding as matter of law that 42 U.S.C. § 1981a(a)(2) does not allow compensatory and punitive damages or a jury trial for retaliation claims under the ADA. District court did not err in allowing defendant to withdraw consent to jury shortly before trial.

Flannery v. Recording Industry Assoc. Of America, 354 F.3d 632, 93 FEP 65 (7th Cir. 2004). Panel: RIPPLE, Rovner, D. Wood. Claim on Appeal: ADA/ADEA termination and retaliation claims. Disposition Below: Dismissal under Rule 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in holding that termination claim was time-barred where parties disagreed about the date when plaintiff termination became final and plaintiff received unequivocal notice. Although plaintiff noted the earlier date of termination in his EEOC charge, it was not inherently inconsistent for him to allege in his complaint that the termination claim accrued at a later date, as both dates were stated in the charge and plaintiff did not admit that the earlier date triggered the limitations period. Moreover, claim would not accrue until employer communicated clear intention to terminate employee, which did not occur until later date. On retaliation claims, plaintiff stated claim that former employer retaliated against him by breaching a post-employment consulting agreement with him after he filed his EEOC charge, which would affect his future employment prospects by denying him access to potential contacts in the industry.

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