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Seventh Circuit

Updated to November 5, 2018

Seventh Circuit

EEOC v. CVS Pharmacy, Inc., No. 17-1828 (7th Cir. Nov. 2, 2018). Panel: WOOD, Rovner, Hamilton. Claims on Appeal: Title VII retaliation. Disposition Below: Fee award to employer [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: "The standard of review in the case before us is thus the deferential abuse-of-discretion approach, but in the course of applying that approach, we must assess whether the district court based its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence." At the time the lawsuit was filed, the law was unsettled whether the EEOC was required to conciliate pattern-or-practice cases under Section 707(a) (42 U.S.C. § 2000e-6(a)), so fees were not warranted on the ground that the action was "frivolous, unreasonable, or without foundation." Even if there were a procedural defect, the district court would have been obliged to remand to allow the EEOC to remedy the defect. While an infirm factual foundation can also support a fee award under Christiansburg, the district court did not base its ruling on that ground. "[W]e agree that the EEOC did not act frivolously by arguing that CVS's severance agreement might deter former employees from cooperating with the Commission."

Donley v. Stryker Sales Corp., No. 17-1195 (7th Cir. Oct. 15, 2018). Panel: HAMILTON, Manion, Sykes. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred by accepting the defendant's version of the timeline of discovering violation (taking surreptitious pictures of vendor) and termination decision: "From Donley's point of view, [supervisor] Thompson had originally told her to delete the photographs but had not thought any further response was needed. And Ferschweiler had learned of the Vail incident without taking any action herself. As Donley views the evidence, Ferschweiler and Thompson did not conclude that she should be fired over the Vail incident until after Ferschweiler and/or Thompson had learned that she had engaged in activity protected by Title VII, complaining about another manager's sexual harassment of another employee." Bolstering plaintiff's account is the defendant's EEOC position statement, which declares that Thompson first 'saw the [offending CEO] photographs at the team meeting in Vail.' This, according to the panel, serves both to "contradict[] Stryker's defense in the lawsuit" - that the decision to fire was made before they learned about Donley's harassment complaint" - and to suggest that Thompson did not think Donley's actions warranted her firing, at least initially. Thus, the plaintiff presented a record that supported causation: the suspicious timing of her firing (only six weeks after she filed the complaint); more favorable treatment accorded the alleged harasser, who was also fired for misconduct but was given a severance package; and conflicting explanations by the employer that supported an inference of pretext. 

Dayton v. Oakton Community College, No. 18-1668 (7th Cir. Oct. 11, 2018). Panel: FLAUM, Manion, Sykes. Claims on Appeal: ADEA hiring. § 1983 and state law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: In ADEA challenge to policy not to hire annuitants under disparate impact theory, the burdens of proof and persuasion fall on the employer as to the reasonable factor other than age, but employer need not defend their selection of one policy over a narrower policy. Thus, while evidence showed that a blanket ban on employing annuitants was not the only option available to employer, ADEA did not require employer to show it selected least-discriminatory alternative. Decision only had to be reasonable. Court not required to make findings on each element of the defense ion the EEOC regulation. Moreover, a reasonable factfinder could not infer from the record that the defendants' reasons for adopting the policy were pretextual. "The mere fact that the risk of a several‐thousand‐dollar penalty loomed large is enough, under these circumstances, to require a factfinder to conclude that defendants based the policy on an RFOA." There was additional evidence that adoption of policy was bona fide. "Oakton had already tried the strategy of employing annuitants with the intention of monitoring their earnings to avoid receiving a [statutory] SURS penalty, and that strategy failed." District court correctly required that employer to present actual evidence of reasonableness and did not merely apply a rational basis test.

Barbera v. Pearson Education, Inc., No. 18-1085 (7th Cir. Oct. 12, 2018). Panel: MANION, Barrett, Gettleman. Claims on Appeal: Title VII severance benefits. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion by limiting FRCP37(e)(1) sanction for missing email chain to acceptance of plaintiff's stipulation on what emails said. Court was not unreasonable in declining to find employer intended to deprive her of the emails. Plaintiff did not present a genuine dispute of material fact on prima facie case because she not raise evidence or reasonable inferences sufficient for a reasonable jury to find any similarly situated individuals received better treatment (comparables). Plaintiff points to three men who received severance pay outside the Voluntary Separation Plan. But these three requested severance pay and left company well before plaintiff made her first severance request "sometime in the later part of 2015" but not before September 2015. Circumstances material changed in that time: company had already decided to transition its entire warehouse workforce to another company. Also, none of the three proposed comparators were offered jobs by the new company and there is no evidence it would have offered them jobs. But plaintiff was offered the same position she held at the employer when she transferred. Even if she had survived prima facie case, she would have lost on pretext. Plaintiff alleged shifting explanations, but explanations were actually consistent. 

Frey v. Hotel Coleman, 903 F.3d 671, 130 FEP 1886 (7th Cir. 2018). Panel: ROVNER, Wood, Bauer. Claims on Appeal: Ill. state law retaliation. Disposition Below: Judgment after a jury trial ($142,930.51 compensatory and back pay) [plaintiff]. Outcome on Appeal: Affirmed and remanded for new trial [plaintiff]. Grounds: Under the Illinois Human Rights Act, a retaliation claim does not require an employer/employee relationship between the plaintiff and defendant. Under Title VII, there can be more than one employer. District court erred by not applying Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 378-79 (7th Cir. 1991), the "economic realities" test, to situation where hotel hired agency to run its facility. "Knight instructs that the putative employer's degree of control is the most important and deserving of the most weight. Vaughn Hospitality had control over every aspect of Frey's work environment. It hired and fired her, determined her compensation and other benefits, supervised, scheduled, and trained her, and evaluated her work .... There is no question that Vaughn Hospitality had absolute control of Frey's employment and its conditions. The first, and most important, factor unquestionably points to Vaughn Hospitality as employer." Moreover, "Vaughn Hospitality provided all of the training at the Hotel and that each employee, including Frey, received a 'Vaughn Hospitality Employee Handbook,' which set forth employment policies, benefit programs, and other procedures." Finally, the length of the job commitment and/or expectation favored finding Vaughn Hospitality an employer; it hired the employee as a long-term employee. And if "Vaughn Hospitality is deemed to be Frey's employer, it is also the joint employer of the other employees in the Hotel." That Vaughn Hospitality was not named in state-agency charge not important; defendant waived that argument in the district court, plus it had sufficient notice of the claims against it and was able to participate fully in the proceedings before the court. On remand, district court should reconsider employer status. Court should also reconsider back-pay award; it erred in holding that the plaintiff was limited to her pre-trial order demand, where district court had discretion to make the plaintiff whole, there was no unfair surprise to defendant, and district court failed to exercise discretion and equitable powers. On prejudgment interest, district court erred by failing to apply state law (statute and administrative code provision, 775 ILCS § 5/8A‐104 and 56 Ill. Admin. Code 5300.1145).

EEOC v. Costco Wholesale Co., 903 F.3d 618, 130 FEP 1841 (7th Cir. 2018). Panel: BARRETT, Sykes, Griesbach. Claims on Appeal: Title VII harassment (sex). Disposition Below: Sudgment after a jury trial ($250,000 compensatory damages) [plaintiff]. Outcome on Appeal: Affirmed and remanded for back-pay relief [defendant]. Grounds: Defendant argued that employee's encounters with harassing customer were too mild, as a matter of law, to constitute severe or pervasive harassment. "Costco insists that they were 'tepid' compared to those that we have held insufficiently severe or pervasive to create a hostile work environment." Court, while agreeing that the comments and physical contact were not excessively "vulgar" in isolation, holds that harassment need not be "overtly sexual to be actionable under Title VII" (i.e., "consist of pressure for sex, intimate touching, or a barrage of deeply offensive sexual comments"). What pushed the conduct into the severe or pervasive range was the stalking. "A reasonable juror could conclude that being hounded for over a year by a customer despite intervention by management, involvement of the police, and knowledge that he was scaring her would be pervasively intimidating or frightening to a person 'of average steadfastness.'" While employer attempted to paint employee as unreasonably sensitive to Thompson's conduct, the jury could have found that the conduct was severe enough to support a state-court order, issued on the ground that employee legitimately feared for her safety. And the jury could also have held that Costco's investigation and corrective measures were "unreasonably weak." On the EEOC's cross-appeal, the court upholds the denial of back pay for the post-employment period. The EEOC tried arguing that employee was constructively discharged when employer failed to protect her at work, but the panel holds that this argument fails conceptually: Employee was fired (for being absent) rather than forced to resign, so no claim for constructive discharge could lie. On the other hand, the panel does hold that employee may be entitled to compensation for the period when she was on unpaid medical leave before her termination. "If a reasonable person in [employee] Suppo's shoes would have felt forced by unbearable working conditions to take an unpaid medical leave in September of 2011, then Suppo is entitled to recover backpay for some period of time following the involuntary leave."

Haynes v. Indiana Univ., 902 F.3d 724, 130 FEP 1820 (7th Cir. 2018). Panel: SYKES, Bauer, Barrett. Claims on Appeal: Title VII (race) and § 1981 denial of tenure. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Title VII claim time-barred because charge was not filed for over a year until he learned he was denied tenure. Under §1981, university and the board of trustees immune from monetary damages. Exclusion of three proffered expert reports affirmed as not an abuse of discretion; one of plaintiff's witnesses lacked the specialized knowledge necessary for an opinion on the relative merits of plaintiff's tenure application as compared to anyone else's. Also reasonable to exclude reports only submitted after summary judgment briefing was done. "Haynes never alerted the judge to any problems his experts had in meeting the dispositive-motions deadline until after briefing was complete. Indeed, he earlier sought four extensions of time, requested further discovery under Rule 56(d) of the Federal Rules of Civil Procedure, and moved to enlarge time for expert discovery without once suggesting that the expert reports wouldn't be ready in time for a summary-judgment motion." To prove discrimination in tenure, "plaintiff needs compelling evidence that 'clear discrimination' pervasively infected the final tenure decision." Contention that department chair picked unqualified reviewers and wrote weak recommendation does not show motivation on the basis of race. Favorable reviews likewise do not establish a racial motive. Comment in one reviewer's letter that she wished she could "support and endorse a colleague who is a member of an underrepresented minority" cannot be shown to have poisoned process.

Rowlands v. United Parcel Service - Fort Wayne, 901 F.3d 792, 34 A.D. Cases 1 (7th Cir. 2018). Panel: GETTLEMAN, Flaum, Ripple. Claims on Appeal: 1. ADA reasonable accommodation. 2. ADA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff adequately alleged an accommodation claim by incorporating by reference the EEOC charge that included accommodation language, even if it was not recited in the complaint itself, as per FRCP10(c). Allegations were sufficient to put employer on notice that case included accommodation theory, and were not required to cite the various elements of prima facie case. That physician "cleared [plaintiff] to work without restrictions" did not preclude finding that plaintiff was a qualified person with a disability; knee injuries substantially interfered with her ability to walk, stand, squat and kneel. And plaintiff's informing management of her limitations and that she needed accommodations was sufficient to put employer on notice that it was expected to engage in the interactive process; failure to do so created a genuine dispute about failure to accommodate. 2. Plaintiff presented genuine dispute of material fact that she suffered retaliation by showing that she was fired shortly after she returned to work from knee surgery, that she constantly requested accommodations that were denied up until her discharge, and that UPS' reason for firing her was pretextual. Contention that she was fired for threatening co-worker with a taser, violating company policy, rebutted with evidence that no policy about carrying taser existed. Also evidence that "(1) her employee ID was never reinstated; (2) she was "put under a microscope" and subjected to new rules that applied only to her; (3) she attempted to discuss her limitations with [manager], but was rebuffed repeatedly; (4) [manager] complained that she 'has been a constant pain in my butt' and 'that management has been on me continually about this'; (5) she alone was prohibited from moving her car closer to the building during her breaks; (6) she was denied access to the first-floor bathroom; and (7) [co-worker] violated the Policy by threatening [another employee] in front of [manager, but was not fired]."

O'Brien v. Caterpillar Inc., 900 F.3d 923, 130 FEP 1765 (7th Cir. 2018). Panel: SYKES, Easterbrook, Kanne. Claims on Appeal: ADEA benefits disparate impact. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred in holding that employees failed to make out prima facie case against liquidation of unemployment plan, with retirement-eligible employees only receiving a pro rata share of the fund if they agreed to retire. "[P]laintiffs have specifically identified a cause for the disparate impact: Caterpillar's decision to condition benefits on retirement eligibility, a status strongly correlated with age." Moreover, "[t]hough the liquidation plan is a single event, it applies the same rules to hundreds of employees and causes significant age-based disparities between workers. It is an actionable policy." Plaintiffs also established a disparate impact on employees 55 and over; court recognizes validity of "subgroup" ADEA claims, citing Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61 (3d Cir. 2017). Neither Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), nor Ky. Ret. Sys. v. EEOC, 554 U.S. 135 (2008), held that pension status could not constitute a neutral classification with a disparate impact. Plaintiffs were similarly-situated to younger comparators for all relevant purposes. There were "no inherent differences between the unemployment-plan participants who were eligible to retire and those who were not. They occupied the same factory jobs, were subject to the same compensation plan, and were entitled to the same benefits." Judgment affirmed on ground that plan was supported by reasonable factors other than age (RFOTA); plan "achieved one of Caterpillar's long-standing financial objectives-namely, the elimination of costly unemployment benefits. It also saved money by incentivizing early retirement and reducing administrative expenses, and contributed to labor peace between Caterpillar and the union." Moreover, "decision to treat retirement-eligible employees less favorably allowed it to secure the union's approval while keeping the retirement incentives in place." Although plaintiffs identified a means of carrying out same policy without age impact (distributing funds per capita to all employees), the RFOTA defense does not include such a requirement. 

Koty v. DuPage Cty., 900 F.3d 515 (7th Cir. 2018). Panel: KANNE, Ripple, Brennan. Claims on Appeal: 1. ADA reasonable accommodation. 2. ADA retalation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2.A ffirmed [defendant]. Grounds: 1. Inability to operate one model of squad car not a major life activity. 2. None of the alleged activities, collectively or together, constituted materially adverse actions (assignment to courtroom duty, removal from special duty, assignment to late shift).

Moreland v. Nielsen, 900 F.3d 504, 130 FEP 1770 (7th Cir. 2018). Panel: Per curiam [Kanne, Scudder, St. Eve]. Claims on Appeal: Title VII retalation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Failure to reimburse plaintiff for time and expenses when she testified at a discrimination hearing was not an adverse action, where ALJ, not employer, scheduled hearing out-of-town. While other employees were reimbursed, they were not similarly situated because they had different supervisors. Alternatively, employer had legitimate, non-discriminatory reason for not reimbursing plaintiff (plaintiff was on reserve, not active, duty and was not eligible under pertinent regulation).

Smith v. Rosebud Farm, Inc., 898 F.3d 747, 130 FEP 1733 (7th Cir. 2018). Panel: BARNETT, Bauer, St. Eve. Claims on Appeal: Title VII harassment (same sex) and § 1981 retalation. Disposition Below: Judgment following a jury trial ($2,407,500 reduced to $470,000 compensatory damages, equitable relief under Title VII, and § 1981, $69,761.80 back pay, $19,894.77 in prejudgment interest) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Plaintiff presented sufficient evidence of motivation because of sex on harassment claim by offering direct comparative evidence that only men, and not women, experienced the kind of treatment that he did (grabbing the genitals and buttocks of other men). Although employer contended that it was all-male environment, there was evidence in the record that 6-7 women and 15-16 men interacted daily. Employer forfeited challenge to § 1981 retaliation claim by not preserving it in a FRCP50 motion for judgment as a matter of law. District court did not err in not granting new trial based on plaintiff's closing argument that "In the Middle East terrorists have murdered tens of thousands of people creating chaos in countries not having the order of law" and that employer is a "company that breeds anarchy." Company failed to preserve objection to statements on the grounds of prejudice, and comments were not so outrageous as to warrant new trial in any case.

Hamer v. Neighborhood Housing Servs. of Chicago, 897 F.3d 835 (7th Cir. 2018). Panel: EASTERBROOK, Sykes, Barnett. Claims on Appeal: Title VII and ADEA retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Statement in defendant-appellee's docketing statement that appeal was timely waived argument that notice of appeal was filed too late. Judgment affirmed on ground that plaintiff failed to establish that any of the decisionmakers knew about plan to file EEOC charge.

Robinson v. Perales, 894 F.3d 818, 130 FEP 1701 (7th Cir. 2018). Panel: ROVNER, Hamilton [MANION, dissenting in part]. Claims on Appeal: 1. Title VII and § 1983 harassment (race). 2. Title VII and § 1983 retaliation (plaintiff #1). 3. Title VII and § 1983 retaliation (plaintiff #2). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Judgment following a jury trial (plaintiff wins, but awarded only $1 nominal damages) [plaintiff]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Affirmed [plaintiff]. Grounds: 1. While the district court held that "a few instances of the use of [the n-word] were not significant enough," panel finds genuine dispute of material fact. Supervisor's "multiple uses of the word n‐‐‐‐r in combination with his heightened scrutiny of [plaintiff] and his call to others to take action against [plaintiff] are sufficient to create a triable issue for a jury on whether the harassment was severe or pervasive enough to constitute a hostile work environment." In particular, "this particular epithet can have a highly disturbing impact on the listener," which was increased because the declarant "was a supervisor with direct authority over" the plaintiff. The panel rejects the argument that the impact of the N-word was mitigated because the supervisor was simply quoting other officers and personally disaffirmed such slurs. Harasser "employed apophasis, the rhetorical device of denying one's intention to speak of a subject that is at the same time mentioned or insinuated .... In other words, [supervisor] denied that he was racist or that he used words like 'n‐‐‐‐r' by using the highly objectionable term multiple times as part of his purported denial." And supervisor reportedly used the slur again weeks later in reference to plaintiff seeking an exemption from shaving, plus allegedly ordered increased scrutiny on the plaintiff and solicited false charges. Whether or not the totality of circumstances created a hostile work environment should be weighed by a jury, holds the panel, not construed in the defendant's favor on summary judgment. 2. Plaintiff claimed he was retaliated against for refusing what he considered to be a discriminatory order to write-up false charges against plaintiff and his partner, so "[t]he very next day, [department] served an unfounded Notice of Infraction on [plaintiff]," and a second one two months later. Although both charges were ultimately dropped, it resulted in plaintiff being demoted from his position as watch commander, "not down to the alternate watch commander but all the way down to street sergeant," which among other things reduced his pay. Who made the decision was a contested issue of fact, and the district court erroneously excluded supervisor's own admission as hearsay. FRE801(d)(2)(A) "provides that a statement is not hearsay if the 'statement is offered against an opposing party and ... was made by the party in an individual or representative capacity' .... Both elements are easily met here. [supervisor] is a party and he purportedly made the statement to [plaintiff]." Moreover, the decisionmaker conceded that he consulted the supervisor-harasser before deciding to demote plaintiff," enough to create a genuine dispute of material fact on a "cat's paw" theory. The record also established temporal proximity, the first write-up coming just one day after Spangler refused the supposedly illegal order. 3. Affirms the denial of judgment as a matter of law for defendant at trial. Supervisor tried arguing that "mere heightened scrutiny does not meet the standard for a materially adverse action," but the panel affirms the district court's conclusion "this was not simply a case of heightened scrutiny applied to the employee's performance. The jury was entitled to believe evidence that '[supervisor] actively planned to damage or perhaps even end [plaintiff]'s career as a UIC police officer and that he attempted to enlist others in that effort." Plaintiff appealed what he considered to be an inconsistent verdict finding supervisor but not the university trustees liable for retaliation. Under standard principles of § 1983 liability, supervisor action was directly attributable to the university, which was in turn should have been strictly liable for his actions. Yet jury was not instructed on strict liability and thus there was no basis in the jury charge for the jury to attribute supervisor's actions to the university. Plaintiff's counsel failing to object to the absence of such an instruction ... even when "the jury sent out a note asking about this very issue." Finally, the panel affirms the denial of attorney's fees to plaintiff's lawyer for the trial. Despite that he was prevailing party, the district court was within its broad discretion to deny fees based on the limited outcome. " Court that this was a mere personal victory without any accompanying public benefit.

Oliver v. Joint Logistics Managers, Inc., 892 F.3d 887, 130 FEP 1609 (7th Cir. 2018). Panel: KANNE, Wood, Bauer. Claims on Appeal: 1. § 1981 termination and failure to rehire. 2. § 1981 termination and failure to rehire. 3. § 1981 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 is not "similarly situated" with the more senior comparators he offers, because workplace was governed by a seniority policy. Even if CBA may have allowed management to consider factors other than seniority, "there is no indication in the record that any party-the company, the union's president, or even Oliver himself-believed that the CBA allowed the company to conduct layoffs based on anything but seniority." 2. Employer proffered legitimate, non-discriminatory reason for failure to hire (white employee had several more years of experience as skilled mechanic, according to applications. 3. Because plaintiff never applied for or showed any interest in the mechanic positions that opened after he filed his EEOC complaint, there was no materially adverse action.

Flanagan v. Office of Chief Judge of Circuit Court of Cook County, Ill., 893 F.3d 372, 130 FEP 1650 (7th Cir. 2018). Panel: Per curiam [Bauer, Easterbrook, Kanne]. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Evidence of physical threats against plaintiff, supposedly in retaliation for Title VII suit, either inadmissible hearsay or too inconclusive to create a hostile work environment.

Johnson v. Advocate Health and Hospitals Corp., 892 F.3d 887, 130 FEP 1609 (7th Cir. 2018). Panel: ROVNER, Hamilton [MANION, dissenting in part]. Claims on Appeal: 1. Title VII (race) and § 1981 pay. 2. Title VII (race) and § 1981 promotion. 3. Title VII (race) and § 1981 terminations. 4. Title VII (race) and § 1981 job assignments. 5. Title VII (race) and § 1981 harassment. 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. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. 5. Reversed [plaintiff]. Grounds: 1. Plaintiffs presented insufficient evidence to show that alleged white comparables were similarly situated, e.g., pay records, qualifications or experience, who supervised them, how long they had worked for the hospital, what types of reviews they received, and if they had been subject to any discipline. 2. Plaintiffs either did not apply for promotions, or failed to present evidence of the qualifications of the white candidates. Speculative statements in record that that white employees who received the positions seemed like they may have been less qualified than Black candidates did not create genuine dispute of material fact. 3. Plaintiffs present no evidence about similarly situated white employees were treated more favorably. 4. Plaintiffs present no evidence about similarly situated white employees were treated more favorably. 5. Deposition testimony and sworn declarations in which the plaintiffs testified that they heard racially derogatory language presented genuine dispute of material fact about severe or pervasive harassment: "cleaned like a monkey," the N-word, mocked employee "as if to say African Americans only speak slang," answering "yo," "I'm from the hood," or speak using stereotypical African-American slang when Black employees were around, "black girl ghetto attitude," "a black B. Bi-polar. Crazy," "black wig-wearing witch[ ]," racial jokes. Comments made to non-plaintiffs were also probative ("I don't want any blacks. They're lazy." 'Honey, you're the wrong color.'"). Also evidence of comments made to others that the plaintiffs heard, which are not hearsay because they are not offered for the truth of the matter asserted. "[T]he collective evidence is sufficient to infer that all of these co-workers knew that their supervisors were repeatedly using racist language towards many employees to define the working environment for all of them. And, it is also sufficient to infer that these supervisors were using racist language in a pervasive way to establish racial and hierarchical dominance in the workplace." Hospital and contractor were possibly both plaintiffs' employers for purposes of Title VII: "Aramark supervisors approved overtime, created and changed schedules, approved and denied vacation requests, assigned work, disciplined employees including issuing "Corrective Action Notices," did quality checks, and completed performance reviews; while hospital maintained ultimate control over disciplinary, hiring, and firing actions. For purposes of imputing liability, while employer investigated many of the complaints, held some meetings, and met with some supervisors, it arguably did not terminate or reprimand any of the harassers. Although Advocate held discrimination training sessions, it is undisputed that one of the main alleged perpetrators of the discrimination, did not attend. Even if other managers were themselves sometimes Black, this does not mean that they could not have contributed to a hostile work environment.

Harris v. Allen Cty. Bd. of Comm'rs, 890 F.3d 680 (7th Cir. 2018). Panel: KANNE, Wood, Rovner. Claims on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Board was not "indirect" employer under "economic realities" test. Board had little, if any, authority to control plaintiff's employment; control of Harris's hiring, firing, day-to-day duties, and salary was statutorily delegated to the Allen Superior Court. The payment of his wages and benefits by the county establishes no control over actual work. Various documents related to his employment that appear to identify the Board as his employer likewise included no indicia of control. One board member's close involvement in his disability accommodations and his termination is suggestive of control, but do not actually indicate that the Board decided that the disability could not be accommodated, determined whether he received another job, or elected to terminate him.

Kelber v. CareFusion Corp., 888 F.3d 868, 130 FEP 1469 (7th Cir. 2018). Panel: HAMILTON, Barrow [BAUER, dissenting]. Claims on Appeal: ADEA disparate impact. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: ADEA supports a disparate impact theory for job applicants, noting split in circuits.

Teufel v. The Northern Trust Co., 887 F.3d 799 (7th Cir. 2018). Panel: EASTERBROOK, Wood, Hamilton. Claims on Appeal: ADEA benefit. ERISA claim (not discussed here). Disposition Below: Judgment on the pleadings [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Pension plan formula satisfies safe-harbor of 29 U.S.C. §623(i), where benefits depend on the number of years of credited service and the employee's salary, not on age.

Madlock v.WEC Energy Gp., Inc., 885 F.3d 465, 130 FEP 1394 (7th Cir. 2018). Panel: MANION, Kanne, Rovner. Claims on Appeal: 1. § 1981 discrimination. 2. § 1981 retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Transfer that was intended to be temporary was not materially adverse employment action, despite loss of some responsibilities and placement in cubicle instead of office. Subjective views of plaintiff and co-workers' not probative. 2. No evidence that disciplinary action was inconsistent with how others who had not filed complaints about discrimination were treated; does not account for the fact that management only discovered her error a month before imposing the punishment, or the fact that it was a $10,000 mistake. Though imposed two days after making complaint, record was devoid of evidence that decisionmakers considered or were motivated by complaint. Plaintiff's claim that disciplinary record included events that never happened, i.e., "false peppering," not sustained; manager affirms that everything in the list is supported by records in plaintiff's human resources file.

Skiba v. Ill. Central R.R., 884 F.3d 708, 130 FEP 1369 (7th Cir. 2018). Panel: FLAUM, Sykes, Hamilton. Claims on Appeal: 1. ADEA and Title VII (national origin) retaliation. 2. ADEA and Title VII (national origin) termination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Nothing in plaintiff's complaints about decisiomaker suggests he was protesting discrimination on the basis of age or national origin. Multiple emails to company in 2012 and 2013 do not reference those protected classes at all; plaintiff framed his complaint in general terms: he stated the issue was a mere "personality conflict" and described manager as an "abusive" supervisor who "berat[ed], badger[ed], and disrespect[ed]" his subordinates. 2. Question about age at the hiring stage two years earlier not probative of cause for discharge. Alleged comments about employee's receptiveness to training derived not from plaintiff's age, but that plaintiff "presented as somewhat over‐confident regarding his own knowledge and abilities." Comments about "low energy" not probative; other candidates "more quick in grasping all these different parts of the job." Comment about another candidate being "close to retirement" not shown to be related to age. Description of plaintiff as "later career person" made by individual without decisionmaking authority. Plaintiff also has not adequately shown he was qualified for a majority of the eighty‐two positions for which he supposedly applied; despite which, he was interviewed for a number of openings. Attempts to point to younger comparables fails because evidence consists solely of a table listing the names and ages of the 37 younger employees and the positions for which they were hired, without evidence that they were comparable in all relevant respects. Conflicting impressions about plaintiff's interview skills not probative where plaintiff was applying for markedly different positions with different interviewers. No inference from gaps in records-keeping and alleged failure to retain notes. Evaluation does not change even when record is considered "as a whole." Title VII claim fails because only evidence in record was that plaintiff was American and manager were Canadian.

Guzman v. Brown Cty., 884 F.3d 633 (7th Cir. 2018). Panel: COLEMAN, Wood, Sykes. Claims on Appeal: ADA reasonable accommodation, retaliation, and termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute that employer was unaware of the employee's diagnosis of sleep apnea. Undisputed evidence establishes that plaintiff was fired based on her repeated failures to show up to work on time.

Grussgott v. Milwaukee Jewish Day Sch., 882 F.3d 655 (7th Cir. 2018). Panel: Per curiam [Bauer, Kanne, Barrett]. Claims on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Hebrew teacher at Jewish school was covered by ministerial exception, because (1) school is a religious institution entitled to assert protection under the ministerial exception, and (2) Hebrew teachers at school were expected to follow the religious Tal Am curriculum, and plaintiff taught her students about Jewish holidays, prayer, and the weekly Torah readings and practiced the religion alongside her students by praying with them and performing certain rituals. Court acted within its discretion in not considering declaration of putative expert under FRE702: the declaration conveyed a legal opinion as to whether the ministerial exception applied to plaintiff.

Rodrigo v. Carle Foundation Hosp., 879 F.3d 236, 33 A.D. Cases 1465 (7th Cir. 2018). Panel: ROVNER, Easterbrook, Hamilton. Claims 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. Medical who failed to pass Step 3 examination - prerequisite for obtaining a license to practice medicine in the United States - was not a "qualified individual." 2. Theory that hospital allegedly retaliated by refusing to waive its Step 3 passage requirement is not a retaliation claim, but a discrimination or accommodation claim. Moreover, plaintiff presented no evidence demonstrating that there was a causal connection between his asserted protected activity and either his termination or the refusal to reinstate him.

Ennin v. CNH Industrial America, LLC, 879 F.3d 838 (7th Cir. 2017). Panel: MANION, Easterbrook, Lee. Claims on Appeal: Title VII and ADA termination (race and national origin). FMLA, conspiracy, and Ind. state law claims (not discussed here) Disposition Below: Summary judgment [defendant].  Outcome on Appeal: Affirmed [defendant]. Grounds: By not filing a surreply brief in the district court that was permitted by court rules, plaintiff waived the admissibility of certain evidence that employer attacked as inadmissible. Absent excluded evidence, plaintiff points to no admissible evidence that employer didn't fire him because of incident where he allowed co-worker to enter facility on his ID and did not adjust timesheet to show co-workers time off of premises. ADA claim fails because employee became disabled only after termination, so condition could not have been "because of" disability.

Milligan-Grimstad v. Morgan Stanley Smith Barney, 871 F.3d 49, 533 A.D. Cases 1117 (7th Cir. 2017). Panel: WILLIAMS, Easterbrook, Feinerman. Claims on Appeal: 1. Title VII termination (sex). 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. Plaintiff was legitimately terminated under policy prohibiting fraudulent transfer requests. While it is possible that manager punished her too harshly given the sophistication of the fraudster who duped her, this unrelated to sex discrimination. Male comparable had a clean record, versus two violations on plaintiff's record. Temporal proximity by itself does not rebut legitimate, non-discriminatory reason. Under cat's-paw theory, there was at most speculation that managers who might have harbored gender-animus influenced termination decision, i.e., managers "could have met between the fraud and the firing and ... could have passed their views to [the decision maker] at such a meeting." 2. Allegations create two broad periods of conduct: one lasting from 2003 to some point in 2009 and another lasting from some point in 2011 until termination the following year. Earlier period was time-barred. Assertions that gap between periods is closer not substantiated by record. Remaining non-barred comments were neither severe nor pervasive enough to be actionable on their own.

Lauderdale v. Ill. Dep't of Human Servs., 876 F.3d 904, 130 FEP 992 (7th Cir. 2017). Panel: KANNE, Manion, Miller. Claims on Appeal: ADA Equal Pay Act, Title VII (sex) and § 1983 compensation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Under EPA, agency established as a matter of law that pay disparity was based on factors other than sex: (1) Illinois administrative Code, which sets forth a detailed pay plan for state employees, supported by forms establishing the new position, classifying the new position within the pay plan, and setting the salary range for the new position; (2) prior salary, which the Seventh Circuit regards as a legitimate factor; and (3) budgetary crisis, where employees were having to take furlough days and there was a real risk the school where she worked would close. Under Title VII and § 1983, even though the plaintiff met her burden to establish a male comparable (same supervisor, qualifications and education requirements for both positions were very similar, many of the same duties), plaintiff was unable to rebut same legitimate, non-discriminatory reasons as above. Because claim fails on merits, no need to investigate individual liability under § 1983.

Golla v. Office of the Chief Judge of Cook County, Ill., 875 F.3d 404, 130 FEP 925 (7th Cir. 2017). Panel: BAUER, Manion, Hamilton. Claims on Appeal: Title VII compensation (reverse race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although one Black employee in the Social Services Department performed similar duties and received a higher salary, the evidence did not establish a racial basis. Black employee's salary was set as part of settlement of race-discrimination case in a different department, and employee carried salary into new job. No evidence of motive to maintain disparity for racial reasons. While supervisor allegedly told plaintiff "all my life people have been standing in my way, and they all looked exactly like you [white]" plaintiff presented no evidence that supervisor ever made this statement in reference to plaintiff's pay.

King v. Ford Motor Co., 872 F.3d 833, 130 FEP 787 (7th Cir. 2017). Panel: DIGUILIO, Bauer, Easterbrook. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. FMLA claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: A1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No abuse of discretion by court excluding declaration by witness not disclosed in Rule 26 disclosure. "[I]n the district court, her argument on this point in opposition to sanction] spanned only There sentences: she argued that [the witnesses]'s name had come up in discovery, so Ford knew about him and could have deposed him. She did not cite to the record for those alleged disclosures, though, so the district court was entitled to disregard that [argument]." Plaintiff also failed to suggest alternative lesser sanctions. Title VII claim filed too late, well more than 90 days after EEOC sent right-to-sue letter. Plaintiff claimed that she never received letter, but this was the result of failing to apprise EEOC of change of address. 2. Protected activity consists of her March 2012 EEOC charge and her internal complaints of harassment. (Other allegations were unsubstantiated and at too-high a level of generality.) Plaintiff alleges adverse actions (suspension and firing) that occurred eight months to over a year later. No genuine dispute as to causation. Evidence of four alleged comparable employees did not show that they are similarly situated to her or even that they are outside her protected class. Gaps too long to infer causation. Even if reason for termination itself was false, this alone did not demonstrate that it was pretext for retaliation. In any case, plaintiff did not establish pretext; 5‐Day Quit notice that required plaintiff to either report for work or give the Human Resources Department a satisfactory reason for her continued absence was valid, and plaintiff offered no cause for absence. Although a clerk in the medical department told plaintiff that her paperwork was acceptable, there is no evidence that the medical department ever conveyed such a belief to management.

Frakes v. Peoria school District No. 150, 872 F.3d 545, 33 A.D. Cases 1109  (7th Cir. 2017). Panel: WILLIAMS, Flaum, Easterbrook. Claims on Appeal: Rehabilitation Act interference. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Teacher's preferred pedagogy for teaching disabled children is not a "protected activity" under the Rehabilitation Act. Alternative ground of res judicata was forfeited by employer by not raising it for a year and a half. District court did not abuse discretion by enforcing local summary judgment procedural rule that required opposing party to respond, deeming moving party's numbered allegations admitted.

Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017). Panel: SYKES, Wood, Easterbrook. Claims on Appeal: AD and reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee who was not medically cleared to return to work after exhausting leave was not a "qualified individual," and granting addition al multi-month leave was not a reasonable accommodation. "Intermittent time off or a short leave of absence-say, a couple of days or even a couple of weeks-may, in appropriate circumstances, be analogous to a part-time or modified work schedule." Plaintiff failed to present evidence of an alternative accommodation, i.e., light duty work; no proof that vacancies existed.

Monroe v. Indiana Dep't of Trans., 871 F.3d 49, 33 A.D. Cases 1117 (7th Cir. 2017). Panel: WILLIAMS, Easterbrook, Feinerman. Claims on Appeal: AD and Rehabilitation Act termination. State tort claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute of material facts about pretext. While agency previously gave plaintiff good reviews, these came before it was aware of continued and serious mistreatment of his subordinates. Misstatement in its EEOC position statement that indicated that all the employees who were at the January 24 safety briefing complained about plaintiff the next day; it is not insignificant that seven or eight of eighteen employees went to complain. Whether two managers disclosed disability status to decision maker irrelevant where plaintiff himself had already disclosed the information. that the decision makers discussed plaintiff's statement that he had PTSD during the meeting at which they decided to discharge him does not establish that their stated reason for discharge was a pretext for discrimination. Witness testified that decision makers discussed whether Monroe actually had PTSD, given the fortuitous timing of his disclosure and given Monroe's failure to submit any documentation from a health care provider confirming the diagnosis. Allegedly comparable employees were under different managers, lacked a track record of violations, and were subject to different rules.

Houlihan v. City of Chicago, 871 F.3d 540 (7th Cir. 2017). Panel: KANNE, Easterbrook, Rovner. Claims on Appeal: Title VII, §§ 1981, 1983 termination (reverse race). First Amendment claims (not discussed here). Disposition Below: Judgment following a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No error excluding evidence (under FRE403 and 404(b)) of alleged past race discrimination by city, i.e., testimony that the mayor's guard detail allegedly always had four Black and four Latino officers (evidence was old and concerned other people). Court found that the plaintiffs introduced the evidence primarily for propensity purposes. While jury instruction could have been read to apply sole-basis liability standard, any error was corrected in a follow-up sentence that correctly recited contributing-factor standard.

Grant v. Trustees of Indiana Univ., 870 F.3d 562, 130 FEP 675 (7th Cir. 2017). Panel: WILLIAMS, Wood, Ripple. Claims on Appeal: Termination (race) and retaliation. Constitutional and state tort claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Most arguments waived by not being presented in district court. Despite raising cat's paw theory of liability, plaintiff failed to show that subordinate manifested discriminatory motive or that his input proximately caused the termination. No evidence that decision maker did not believe plaintiff's continuing misrepresentations of his credentials rose to the level of serious personal misconduct worthy of his termination. 

Richards v. U.S. Steel, 869 F.3d 557 (7th Cir. 2017). Panel: CHANG, Willliams, Hamilton. Claims on Appeal: Illinois state tort claim (intentional infliction of mental stress). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: While tort claim for mental distress against employer was not necessarily preempted by Illinois Human Rights Act because its filed against an employer, summary judgment is affirmed for failing to state a claim against employer. Illinois common law does not provide strict liability by employer, and there was no evidence that harassment was carried out within the scope of employment. Also, there was insufficient evidence of extreme and outrageous behavior.

Reed v. Freedom Mortgage Co., ., 869 F.3d 543, 130 FEP 639 (7th Cir. 2017). Panel: ROVNER, Posner, Williams. Claims on Appeal: Illinois state law termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Video evidence proffered by plaintiff properly excluded for lack of authentication, where plaintiffs themselves (who recorded the videos) could recall the dates or times that the videos were recorded and conceded that the videos showed only a limited part of the office. Failure of defendant to produce time records in discovery did not warrant negative inference that evidence would be unfavorable to it where there was no evidence that the records were destroyed or withheld in bad faith (noting split in circuits). Plaintiff presented no genuine dispute of material fact about whether similarly situated non-Black employees were treated more favorably under attendance policies. Plaintiff failed to present evidence that white violators had a comparable history of discipline. While plaintiff could be competent to testify about arrival times of co-workers, plaintiff only testified that he had seen these other employees arrive after 8 a.m. an unspecified number of times on dates that he could not recall. There was no evidence of what happened to the other violators.

Mourning v. Ternes Packaging-Indiana, Inc., 868 F.3d 568, 130 FEP 603 (7th Cir. 2017). Panel: Per curiam (Wood, Ripple, Sykes). Claims on Appeal: Title VII termination (sex). FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute of material fact whether plaintiff was fired because of sex. Comparison to male employee fails; although he supposedly worked in a similar managerial position, and supposedly acted more egregiously than she did, there was no evidence that company management was aware of his conduct. Alternatively, no proof of pretext; challenging veracity of complaints by her subordinates not probative where there was no evidence decision makers knew that the complaints were false.

EEOC v. Union Pacific Railroad, 867 F.3d 843, 130 FEP 606 (7th Cir. 2017). Panel: CONLEY, Rovner, Williams. Claims on Appeal: Subpoena enforcement action. Disposition Below: Enforcement granted [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Neither the issuance of a right‐to‐sue letter nor the entry of judgment in a lawsuit brought by the individuals who originally filed the charges against employer bars the EEOC from continuing its own investigation, noting split in circuits. Requested data about the test being administered to become eligible for promotion and the successful and unsuccessful applicants, including computerized personnel information, relevant and might well "cast light on the allegations against the employer."

Nischan v. Stratosphere Quality, LLC865 F.3d 922, 130 FEP 530 (7th Cir. 2017). Panel: KANNE, Posner [MANION, dissenting]. Claims on Appeal: 1. Title VII and Ill. law harassment (sex). 2. Title VII and Ill. law discrimination (sex). 3. Title VII and Ill. law retaliation. State tort claims (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. Plaintiff was not joint employee of auto plant where her employer agency (Stratosphere) assigned her; auto plant lacked role in hiring and could only make recommendations about firing. Though she was removed based on auto plant's request, it is very common for service providers to adhere to their client's wishes on personnel decisions. Most of the responsibility for supervision and training belonged to employer. Plaintiff's manager of auto plant could not be held individually liable under Title VII, and under Illinois law manager was not "joint employer." Manager was not supervisor for purposes of harassment law under Title VII, because he lacked hiring and firing authority or other control; under Illinois law, no strict liability because harasser was not an employee of the employer. Genuine dispute of material fact about co-worker harassment, where attorney was "negligent either in discovering or remedying the harassment." Employer possibly had constructive notice; two Stratosphere employees were in the trailer when manager allegedly sexually assaulted her; at least one of those employees had reporting responsibility. Although plaintiff offered unclear testimony at deposition about who witnessed event, "deponents often misspeak and make mistakes, and competent advocates can expose those errors through skillful cross‐examination at trial." 2. Plaintiff could not show that alleged shunning and ostracizing was "because of" sex. 3. Plaintiff lodged no complaint until after Stratosphere removed her from the lot, so no proof of causation.

Stragapede v. City of Evanston, 865 F.3d 861, 33 A.D. Cases 986 (7th Cir. 2017). Panel: SYKES, Wood, Easterbrook. Claims on Appeal: ADA termination. Disposition Below: Judgment after a jury verdict ($225,000 in compensatory damages, $354,070.72 in back pay) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff].  Grounds: City not entitled to judgment as a matter of law on "essential functions" where jury could have credited doctor's April assessment (based on a personal examination) over the September report (based entirely on information supplied by the City). Jury also could have discounted city witness who testified about performance, but did not personally observe plaintiff's work, and testimony about absences (where the ADA has not established a hard-and-fast rule that no absences from work need be tolerated). City not entitled to direct Thereat defense as a matter of law; employer's good-faith belief that employee could harm self or others insufficient to prove defense, and medical and objective evidence was mixed. Although district court may have erred in excluding prior auto-accident under FRE404(b), error was harmless because the city's direct-Threat defense was predominantly based on doctor's opinions; the single episode of inattentive driving was not important. Because of jury's determination that plaintiff was capable of performing the essential functions of his job did not depend on the presence of a ride-along companion, defense of undue hardship was immaterial. Judge faithfully applied circuit precedent in declining to reduce the back pay award for failure to mitigate; panel rejects suggestion that court overrule cases imposing employer's burden to prove the availability of other comparable employment.

Carson v. Lake County, Indiana, 865 F.3d 526, 130 FEP 499 (7th Cir. 2017). Panel: HAMILTON, Wood, Flaum. Claims on Appeal: ADE and Equal Protection termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although all part-time employees who were terminated on October 1, 2013 were age 65 or older, it was only one factor in decision that was not but-for cause, because four criteria had to be met ((1) age 65 or older, (2) enrolled in Medicare for their primary health insurance coverage, (3) rehired retirees and (4) enrolled in the Aetna supplemental policy). Medicare eligibility does not function as a proxy for age under Hazen Paper. Even if age-65 condition were removed, bottom-line result would be the same. Moreover, there is no showing that plaintiffs were treated less favorably than comparable younger employees; plaintiffs among the small group of rehired retirees who were employed part-time and insured under Medicare and the Aetna supplement. All such employees were fired. Because plaintiffs' case rests on claim of facial discrimination, attempt to recast as disparate impact fails for lack of "facially neutral" policy; alternatively, claim fails under "reasonable factors other than age" defense. Equal Protection claim fails because terminations were rationally related to legitimate interest in to preserving its supplemental insurance plan and to complying with federal law. 

Alamo v. Bliss, 864 F.3d 541, 130 FEP 475 (7th Cir. 2017). Panel: RIPPLE, Manion, Rovner. Claims on Appeal: 1. Title VII and § 1983 harassment (race, national origin). 2. Title VII discrimination (race, national origin). 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. Reversed [plaintiff]. 3. Reversed [plaintiff]. Grounds: 1. District court erred in holding that the behavior was not "severe or pervasive" as a matter of law, based on the complaint alone. The complaint alleged the use of racial slurs, hostile physical contact, and Thereats of violence, which may certainly be part of a hostile work environment. Moreover, even seemingly minor activity can fuel the hostility: "The complaint also makes clear that these slurs were just part of the harassment that Mr. Alamo faced. The complaint also alleges that Mr. Alamo notified Battalion Chief Annis and Lieutenant Bliss of 'several incidents' of his food being thrown out of the fridge or being stolen by co-workers. The defendants characterize these allegations as the sort of 'trivial' incidents not covered by Title VII. But that misunderstands the Supreme Court's standard, which requires that we consider the totality of Mr. Alamo's factual allegations and the work environment in which they happened." Such behavior, taking place where the officers both live and work, could degrade "unit cohesion" vital to firefighting. It also notes that an incident that took place just 24 hours before the plaintiff took medical leave might count as part of the hostile work environment, as "it was far too premature for the district court to conclude that the City could not have taken remedial action." 2. "Detailing" (being forced to move from one assignment to another) plausibly states a materially adverse action. Although it did not result in a loss of pay or position, it did affect plaintiff in other ways: "We believe that it is premature to conclude that excessively 'detailing' Mr. Alamo did not result in an adverse employment action. When evaluated in context with Mr. Alamo's other allegations, these assignments can be construed as a tool to marginalize or stigmatize Mr. Alamo within the Department. It also may be that being 'detailed' made it difficult for Mr. Alamo to continue to perform his job at the same level, or may impact Mr. Alamo's long-term career prospects." The allegations of delaying his return from medical leave, in addition to temporarily costing him income, also could be held to be materially adverse: "He claims that '[f]or each [hurdle] he cleared, a new one appeared, more onerous than the last.' Such a pattern, Mr. Alamo asserts, is consistent with making compliance impossible, and differentiates these allegations from what otherwise might have been a legitimate investigation into Mr. Alamo's medical fitness. The complaint also clearly connects this treatment to Mr. Alamo's protected status, claiming that 'other, non-Latino firefighters have not been subjected' to these types of 'hurdles, obstacles, and challenges in their attempts to return to work after a medical leave of absence.'" 3. Plaintiff plausibly alleged causation between his complaint to the police and the adverse treatment, despite a gap in time caused by the intervening medical leave: "[I]t was not until Mr. Alamo attempted to return to the Chicago Fire Department, when his medical leave was about to expire, that the Department had its first opportunity to retaliate against him for reporting the incident with Captain Stefan."

Lauth v. Covance, Inc., 863 F.3d 708 (7th Cir. 2017). Panel: BAUER, Posner, Sykes. Claims on Appeal: 1. ADEA termination. 2. Title VII retaliation. Cost petition [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 genuine dispute about motivation for termination, where plaintiff's supervisors consistently found his performance (demeanor and communication style) problematic, despite "meets expectations" ratings, and after five years of such reports put plaintiff on a PIP (performance improvement plan). Plaintiff's belief that he was performing his job adequately is not relevant to the question of whether employer itself believed it had a legitimate, non-discriminatory basis to terminate him. Younger co-worker who was also cited for communications skills did not receive similar negative feedback over such a long period of time and proved willing to listen to criticism and improve. 2. In-house hotline call explicitly disclaimed age as the underlying basis for the harassment of which he complained, so was not protected activity. EEOC charges are protected. Negative performance evaluations not "materially adverse," and termination (for reasons stated above) not shown to be causally linked to EEOC charges.

Baines v. Walgreen Co., 863 F.3d 656, 130 FEP 462 (7th Cir. 2017). Panel: HAMILTON, Flaum, Kanne. Claims on Appeal: Title VII and § 1981 retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Testimony of manager who wanted to hire plaintiff admissible, where contested statement by decision maker was not admitted for hearsay purposes, i.e., because it was not a "statement" but a command not to hire plaintiff. Manager's statement in turn admissible as FRE801(d)(2)(D) admission of a party's agent. Plaintiff presented genuine dispute of material fact regarding causal connection based on following circumstantial evidence: (1) All computer records of plaintiff's job application interview disappeared without explanation; (2) decision maker was involved both in handling prior EEOC charges and deciding not to hire plaintiff, and told plaintiff that she "messed up" by filing the charges; (3) decision maker's intervention in hiring decision deviated from Walgreens' normal hiring practice and highly unusual; (4) sharp conflict of testimony on reasons not to hire between one manager and decision maker raises prospect of defendant's reason being a pretext; (5) length of time between charges and failure to rehire was five years, but this did not break chain under "temporal proximity" principle, where other circumstantial evidence substitutes for inference and this was employer's first opportunity to retaliate since plaintiff left.

Sommerfield v. City of Chicago, 863 F.3d 645, 130 FEP 469 (7th Cir. 2017). Panel: WOOD, Posner, Kanne. Claims on Appeal: 1. Title VII discrimination (race, national origin). 2. Title VII retaliation. 3. Title VII attorney's fee. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. $1.5 million in attorney's fees request reduced to $430,000 [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Staffing decision claim was not stated in charge or reasonably related to it, where plaintiff cited only one supervisor's conduct and not actions of other alleged supervisors. 2. Claimed forfeited by inadequate briefing in district court. 3. District court did not abuse discretion in reducing fee award to prevailing plaintiff's counsel (who won $30,000 judgment in discrimination case), where judge supported reduction of unnecessary hours and hourly rate (which reflected poor performance over the years of case). No abuse of discretion to reduce lodestar 50% to reflect "limited success and problematic litigation conduct." Work on the unsuccessful claims properly excluded because they were not "inextricably linked" to his successful claims.

EEOC v. Auto-Zone, Inc., 860 F.3d 564, 130 FEP 332 (7th Cir. 2017). Panel: SYKES, Easterbrook, Kanne. Claims on Appeal: Title VII segregation, 42 U.S.C. § 2000e-2(a)(2) (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Even for claim of limiting, segregating or classifying employees based on race (employee claimed that employer transferred him out of store location in an effort to make it a "predominantly Hispanic" worksite), employees still needed to establish materially adverse employment action. Employee did not suffer loss of income or employment opportunities. Section 2000e-2(a)(2) makes it unlawful to segregate employees by race even if that action has only a tendency to deprive a person of employment opportunities.

Nicholson v. City of Peoria, 860 F.3d 520, 130 FEP 328 (7th Cir. 2017). Panel: MANION, Posner, Kanne. Claims on Appeal: 1. Title VII and § 1983 reappointment (sex). 2. Title VII retaliation ADA reasonable accommodation and termination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No genuine dispute of material fact that evidence to contradict the city's position that male was chosen over plaintiff because of the former's better interview performance. Argument that interview process was a sham not supported by any admissible evidence, only by the feelings of another female officer who was unhappy about being excluded from the selection committee. 2. One-year period between protected activity and alleged retaliation fails to establish temporal proximity. For above reasons, plaintiff also failed to create genuine dispute of material fact on pretext.

Ferrill v. Oak Creek-Franklin Joint school Dist., 860 F.3d 494, 130 FEP 348 (7th Cir. 2017). Panel: SYKES, Posner, Yandle. Claims on Appeal: 1. Title VII and § 1981 reappointment (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. Plaintiff failed to present genuine dispute of material fact on prima facie case about whether her job performance during her two years at school met legitimate expectations, where reviews documented problems creating serious erosion in morale at the school, and plaintiff failed to respond to counselling. 2. Efforts to raise awareness of racial issues at school focused almost entirely on behavior by students and did not concern any employment practice by the school district, so not protected activity under Title VII. Moreover, no evidence of causation where persistent resistance to improving her performance spanned the entirety of her two-year tenure and was confirmed by an independent consultant.

Brown v. Milwaukee Board of school Directors, 855 F.3d 818, 33 A.D. Cases 713 (7th Cir. 2017). Panel: HAMILTON, Bauer, Manion. Claims on Appeal: ADA reasonable accommodation and termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Teacher with severe arthritis could not be reasonably accommodated where she had permanent restriction by her own doctors not to be "in the vicinity of potentially unruly students." (To the extent that plaintiff challenged that, she failed to establish that she engaged in interactive process to clarify restrictions.) All but one of the other jobs plaintiff identified as a reasonable accommodation would have required such proximity, and proximity to students was an essential function of the job of teaching. The lone exception would have been a promotion for which plaintiff was not the most qualified candidate; promotion is not a reasonable accommodation.

Turner v. Hirschbach Motor Lines, 854 F.3d 926, 130 FEP 81 (7th Cir. 2017). Panel: HAMILTON, Posner, Sykes. Claims on Appeal: Title VII (race) and § 1981 hiring. State tort claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute that plaintiff was not hired because of a failed test. Under a cat's paw theory of liability, plaintiff must show causal link between the presumed unlawful animus of manager who did not make the decision, and the decision itself. Record established that employer would not hire someone who fails a drug test and that plaintiff had failed a drug test administered by an independent medical agency. Even if it arguably violate regulation to order a second test, no evidence that decision maker was aware of it.

Hirmiz v. New Harrison Hotel, 865 F.3d 475, 33 A.D. Cases 643 (7th Cir. 2017). Panel: POSNER, Sykes, Hamilton. Claims on Appeal: ADA termination and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute about whether plaintiff is disabled. Plaintiff presented no evidence that alleged sensitivity to electromagnetic voltage caused an impairment that substantially limited the plaintiff in a major life activity. No causal link between complaints about exposure to electromagnetic voltage and termination, and employer had legitimate reason to terminate (falling asleep on the job).

Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339, 130 FEP 1 (7th Cir. 2017) (en banc). Panel: WOOD, Posner, Flaum, Easterbrook, Ripple, Rovner, Williams, Hamilton (POSNER, concurring) (FLAUM, Ripple, concurring) (SYKES, Bauer, Kanne, dissenting). Claims on Appeal: Title VII hiring and termination (sexual orientation). Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: A person who alleges employment discrimination on the basis of sexual orientation states a claim for sex discrimination under Title VII. 

Burton v. Board of Regents of the University of Wisconsin System, 851 F.3d 690, 129 FEP 1818 (7th Cir. 2017). Panel: MANION, Flaum, Williams. Claims on Appeal: 1. Title IX retaliation (sex). 2. Title VII retaliation (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Neither of two proffered adverse actions rises to the level of materiality required by Title VII/IX: (1) supposed criticisms of plaintiff after she reported the note (handed by male professor to female student in class, saying "Call Me Tonight"); and (2) the apparent withdrawal of support for Burton's cybersecurity initiative. Roll-out of new harassment reporting policy not a "reprimand" and in any event did not have consequences for plaintiff's career. 2. Plaintiff subjected to materially adverse employment actions (letter of direction and subsequent complaint to the chancellor). Plaintiff also alleged two materially adverse actions. Two other proffered adverse actions (1) the repeated pressuring to drop the discrimination charges; and (2) Throop's Thereat of discipline in retaliation for the allegedly canceled class) did not cause plaintiff any injury. Summary judgment affirmed on ground that there was insufficient evidence of causation. Six-month gap between complaints and letter of direction. No evidence of pretext (performance issues in letter were factually grounded and not in dispute).

Whitaker v. Wisconsin Department of Health Servs., 849 F.3d 681, 33 A.D. Cases 469 (7th Cir. 2017). Panel: HAMILTON, Bauer, Flaum. Claims on Appeal: Rehabilitation Act termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Regular attendance is an essential function of employment, as a general rule. Plaintiff's responsibilities included answering phone calls, attending in-person meetings with clients, using the Department's internal computer system, and other tasks that required attendance. Regarding the accommodation of leave, plaintiff did not offer any admissible evidence regarding the effectiveness of her course of treatment or the medical likelihood of her recovery. Doctor's note was too vague, and plaintiff's own declaration does not provide sufficient evidence to allow a trier of fact to find that, if the Department had given her addition al unpaid leave, she likely would have been able to return to work on a regular basis.

EEOC v. Flambeau, Inc., 846 F.3d 941, 33 A.D. Cases 394 (7th Cir. 2017). Panel: HAMILTON, Flaum, Manion. Claims on Appeal: ADA medical testing, 42 U.S.C. § 12112(d)(4). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Dismissed as moot [defendant]. Grounds: Regardless of the merits of the challenge to a wellness policy, appeal had to be dismissed because plaintiff could obtain no relief and the case was moot. Plaintiff claimed out-of-pocket expenses, but these were never paid. Conclusory statement in deposition that "when they took my insurance away, and my kids didn't know what's going on, and I couldn't go to the doctor and stuff like that" did not support emotional distress damages as a matter of law. Punitive damages are unavailable because law was (and remains) unsettled about legality of the wellness program. That EEOC had enforcement guidance on the issue was not tantamount to settled law. No injunctive relief possible where employer made its wellness program non-mandatory well before this lawsuit began, and it did so for reasons unrelated to the lawsuit.

David v. City Colleges of Chicago, 846 F.3d 216, 129 FEP 1505 (7th Cir. 2017). Panel: RIPPLE, Flaum, Peterson. Claims on Appeal: 1. Title VII (race, sex) and ADEA pay. 2. Equal Pay Act. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [plaintiff]. Grounds: 1. McDonnell Douglas Corp v. Green survives Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). Failure to process the Job Analysis Questionnaire (JAQ) and the failure to complete the EEO investigation not materially adverse employment action because they the terms and conditions of plaintiff's employment. Neither individual to whom plaintiff compared herself was similarly situated. For one (Reyes), job required relevant college degree and technical experience to oversee the development, implementation, and servicing of the computer systems that plaintiff did not possess. Reyes did not testify, contrary to plaintiff's argument, that she performed the exact same functions plaintiff performed before she retired. The fact that one of plaintiff's job duties eventually found its way to a second person (Rodriguez), hired over one year after plaintiff retired, does not establish that they were similarly situated for purposes of pay. Despite employer's failure to process the JAQ, plaintiff nevertheless received a review of her request for reclassification. Plaintiff does not present evidence that the review of her position could have been accomplished more quickly than it was. Nor was there any evidence that the decision makers had reason to believe that plaintiff's position should be retitled. While one decision maker referred to plaintiff's retirement, no inference of discrimination could be made where plaintiff has not identified any record evidence that explains how retirement eligibility is determined at college. 2. Plaintiff did not perform similar duties in her position or that she had the skills to perform these functions to Reyes.

Gracia v. SigmaTron, International, Inc., 842 F.3d 1010 (7th Cir. 2016). Panel: ROVNER, Flaum, Sykes. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury trial ($57,000 in compensatory damages and $250,000 in punitive damages. ($57,000 reduced to $50,000, to bring the total verdict within the $300,000 Title VII cap) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Sufficient evidence to support the retaliation verdict. "The company contends ... that she was terminated because of her record of tardiness and because she allowed an employee to use unleaded solder on a leaded circuit board." But record established that the company did not rely on tardiness at trial and an executive even testified that he did not consider attendance while deciding to fire plaintiff. Regarding the second reason, there was plenty of reason for the jury to discredit. The company's own witnesses at trial contradicted themselves over whether the incident was reported the incident to management by plaintiff's supervisor, supervisor testified that plaintiff responded appropriately, and the error itself was a fairly minor one that was easily rectified and never a fireable offense. Moreover, the jury could have found that the proximity of the decision (weeks after plaintiff filed an EEOC charge) and that the alleged harasser was involved in the termination raised a further inference of retaliation." Panel upheld the $57,000 compensatory damage award. Plaintiff could testify about her own mental state: "It was hard. I was just depressed. I have always been used to working." Jury could have awarded this sum based on the tenor and sincerity of the testimony, however succinct, and that lay testimony was sufficient to support an award. Also, the number fell well within the range of comparable awards in the Seventh Circuit. There was more in the record to support the award: "that [plaintiff] had worked continuously from the age of sixteen; SigmaTron's own witnesses conceded that, prior to her termination, Gracia had been a spectacular employee at the company; and after her termination, at the height of the recession, Gracia remained unemployed for sixteen months despite her extensive efforts to find another job." Finally, the panel upheld the punitive award. Given the Title VII cap of $300,000 on monetary damages, the ratio of punitive to actual damages "cease[d] to be an issue of constitutional dignity." (Nevertheless, the court holds that the 5:1 ratio "is well within the range we have approved in other cases." The panel also holds that the jury had ample evidence of willfulness. "[T]his standard is met when the employer engages in the act of retaliatory discharge and then makes efforts to hide it, in this case creating a false paper trail that included manufactured details of reports and meetings with Trujillo and other managers in an effort to hide the true nature of the discharge." Finally, it rejects as legally unsupported the argument that the jury could not award more than the plaintiff requested (in closing argument, the lawyer sought $200,000). "Finally, we are aware of no rule prohibiting a jury from awarding more in damages than a plaintiff requests and SigmaTron cites no authority for this claim"

Carlson v. Christian Brothers Servs., 840 F.3d 466, 33 A.D. Cases 61 (7th Cir. 2016). Panel: POSNER, Flaum, Manion. Claims on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Filing of "Complainant Information Sheet" with Illinois Department of Human Rights (with worksharing agreement with EEOC) is not a charge for charge-filing requirement of ADA (adopted by reference from 42 U.S.C. §§ 2000e-5(e)(1)) unless it includes request for relief.

Volling v. Kurtz Paramedic Servs., 840 F.3d 378, 129 FEP 1165 (7th Cir. 2016). Panel: FLAUM, Manion, Hamilton. Claims on Appeal: Title VII and Ill. state law retaliation. State statutory claim (not discussed here). Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiffs adequately pled both an adverse employment action and a causal link between that action and their protected activity. Protected activity may include opposition to discrimination at a different employer. Failure to hire is a materially adverse action; failure to actually apply is excused where it is alleged that the employer's "manner" of publication of open positions may involve the discriminatory absence of publication. Causal link established; alleged retaliatory dis-crimination-purposefully failing to inform plaintiffs of the new hiring process-caused plaintiffs' failure to apply.

Williams v. Office of the Chief Judge of Cook County, 839 F.3d 617, 129 FEP 1119 (7th Cir. 2016). Panel: WILLIAMS, Wood, Bauer. Claims on Appeal: 1. Title VII, §§ 1981 and 1983 termination (race). 2. Title VII, §§ 1981 and 1983 retaliation. State statutory and contract 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 did not present a genuine dispute of material fact on the prima facie case. While a white employee was given several chances to return to work after taking a similar leave, similarly situated employees must be "directly comparable to her in all material respects ... to eliminate other possible explanatory variables." 2. There year gap between complaint and termination defeats causation (lack of temporal proximity).

Lord v. High Voltage Software, Inc., 839 F.3d 556, 129 FEP 1021 (7th Cir. 2016). Panel: SYKES, Easterbrook (ROVNER, dissenting in part). 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 genuine dispute of material fact that jokes by male co-workers that he "had" or "[had taken] care of the audio bug" in reference to a female engineer (the phrase "audio bug" had supposedly sexual connotations) and unwanted physical contact not shown to be directed at him because of sex. 2. Complaints about conduct not protected opposition conduct because behavior did not reasonably amount to sex harassment. Also, no proof of causation: although termination occurred one day after telling employer that he was "close to filing a complaint with the [Illinois Department of Human Resources] and EEOC," any inference regarding suspicious timing defeated by evidence that plaintiff failed to timely report allegations of harassment, fixation on his coworkers' "performance, timeliness, and conduct"; and insubordination. No evidence of shifting explanations.

Cole v. Board of Trustees of Northern Illinois Univ., 838 F.3d 888, 129 FEP 949 (7th Cir. 2016). Panel: HAMILTON, Posner, Kanne. Claims on Appeal: 1. Title VII and § 1983 harassment (race). 2. Title VII and § 1983 discrimination (race). 3. Title VII and § 1983 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. Record does not support a reasonable inference that most of the hostility plaintiff encountered was connected to his race. One exception was discovery of noose and allegedly inadequate investigation. Whether such display could be considered sufficiently severe by itself to constitute harassment, plaintiff failed to impute liability to employer. No evidence that a supervisor was involved in leaving the noose, nor that school failed to take "prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring," Plaintiff underplayed incident (telling investigators that he thought it was a joke). Faced with an incident that lacked any other Threatening overtones, it was reasonable for manager to leave the matter to university police once she had reported it and to forgo addition al action. Supposed existence of another noose and "no blacks allowed" sign, not observed by plaintiff, not a basis for imputing liability where record did not reflect what steps were taken next. 2. Accusations of theft not shown to be motivated by race. Negative experiences plus being the only Black foreman in the department not enough. Demotion occurred at same time as white employee, by the same person and with the same offered justification 3. Ethics complaint submitted to management did not suggest complaint of race discrimination.

Ernst v. City of Chicago, 837 F.3d 788, 129 FEP 968 (7th Cir. 2016). Panel: MANION, Bauer, Kanne. Claims on Appeal: 1. Title VII disparate treatment hiring [sex]. 2. Title VII disparate impact hiring [sex]. Disposition Below: 1. Judgment after a jury trial [defendant]. 2. Judgment after a bench trial [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. District court misinstructed the jury on burden, believing that evidence of hiring statistics must be harnessed to a Title VII "pattern-or-practice" case. Resort to "pattern-or-practice" inferences was unnecessary. Thus, the instruction misfocused the jury on sex as a factor in the specific decisions not to hire the five plaintiffs, rather than the central issue of whether the CFD "had an anti-female motivation for creating its skills test." Court affirms admission of handwritten meeting minutes as FRE803(6) business records, impeachment of city's expert witness with the "evidence that [she] had previously engaged in conduct [with the Chicago Fire Department (CFD)] that reduced the number of jobs for which women qualified," and relevance of use of differential testing standards for paramedic and fire-fighter applicants. 2. Validity test for the physical-skills exam was so methodologically infirm that the CFD failed to prove that the exam was job-related. Under Title VII, "[v]alidity is the extent to which a study accurately measures what it sets out to measure." In relevant part, "[a] criterion-related validity study" as deployed here "measures a study's validity by comparing the assessment-tool results with the criteria." The accepted technical standards for validity are committed to EEOC regulation, 29 C.F.R. § 1607.14(B)(4). The CFD offered designer's test as a "concurrent validity study," where "the researcher takes two measures at the same time," with "one measure (which is known to be valid) [used] to validate the other measure (which needs to be validated)." Errors included: (1) subjects used to design the test were self-selected instead of randomly-selected; (2) Gebhardt admitted that the volunteer subjects "did not represent the skill-set in the general population of Chicago paramedics"; (3) using only a small sample of Chicago applicants, designer rounded the data out with testing results of New York paramedics, without correcting for the finding that Chicago applicants tended, on average, to score above-average; (4) correlation of the test to the lift-and-carry work sample had a "reliability score" of only 0.503; (5) "even if reliability was fully established in this case, validity would be a problem" because "Chicago used the work-sample tests to validate the skills tests-without ever validating the work samples"; (6) CFD failed to establish a need for timed exams; (7) one work sample, the stair-chair push, was not shown to be related to any important function; and (8) another work sample, the stretcher lift, likewise "does not resemble skills learned on the job."

Lawler v. Peoria Sch. Dist. No. 150, 837 F.3d 779, 32 A.D. Cases 1821 (7th Cir. 2016). Panel: Per Curiam [Wood, Bauer, Kanne]. Claims on Appeal: Rehabilitation Act termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute of material fact about whether from plaintiff's "first meeting on September 21, 2011, [district HR director] Dunn summarily refused to consider transferring her out of the Day Treatment" room, a stressful environment for teacher with PTSD. Had "the school district had inquired about [Lawler], it would have learned that many of the interpersonal issues cited by Lawler's supervisors as performance problems likely were caused by her PTSD." Contention that the district reasonably accommodated Lawler's PTSD by granting her request for a 2-week medical leave of absence is deemed "frivolous". "This short-term leave after Lawler's on-the-job injury and hospital visit did not address her psychologist's concern that Lawler's PTSD was aggravated by working with the students having severe behavioral and emotional disorders." Moreover, record reveals that a transfer was feasible; "at least seven openings for special education teachers existed in other schools within District 150 at that time." Finally, while the district argued that plaintiff failed to submit the proper paperwork to request a transfer, district "failed to engage in the interactive process by making that assumption [about the paperwork] without seeking clarification from Lawler or [treating] Dr. Hamon .... A jury reasonably could conclude that District 150's failure to seek clarification from Lawler or her doctors caused the breakdown in the interactive process."

Arrigo v. Link Stop, Inc., 836 F.3d 787 (7th Cir. 2016). Panel: WILLIAMS, Bauer, Kanne. Claims on Appeal: Title VII (pregnancy) and ADA termination. FMLA claim (not discussed here). Disposition Below: Motion to amend denied [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No abuse of discretion to deny amendment (and filing of new action) four months after the deadline for amendment of the pleadings that had been jointly proposed by the parties. Invalid excuse for belated complaint that plaintiff was waiting to exhaust administrative procedures at state civil rights agency; she should have sought a stay of the action to complete exhaustion, then amend. Also, discovery demands would have been different (different witnesses, different damages). Filing a second lawsuit would have simply circumvented denial of leave to amend, and denial of a motion to amend is res judicata.

Lane v. Riverview Hospital, 835 F.3d 691, 129 FEP 844 (7th Cir. 2016). Panel:  HAMILTON, Manion, Williams. Claims on Appeal: Title VII (race) and § 1981 termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Security guard did not present genuine dispute of material fact regarding pretext for his termination, based on his having slapped a patient. District court erred in concluding that comparable white employee who also allegedly assaulted a patient was dissimilar because he had a different manager (this was disputed). But they were not comparable for a more basic reason: plaintiff admitted that he slapped the patient, while white employee denied striking patient, and hospital supervisors who investigated the incident credited his account, as backed up by other witnesses. Discrepancy in accounts that hospital provided to EEOC, even if deliberate, provide no inference of discrimination absent other evidence corroborating unlawful intent. One racial comment came eight months before termination. Other comment was response to question by plaintiff about patient's use of a vile racial epithet against him.

Hillmann v. City of Chicago, 834 F.3d 787 (7th Cir. 2016). Panel: SYKES, Flaum, Manion. Claims on Appeal: ADA retaliation. State statutory claim (not discussed here). Disposition Below: Judgment after a bench trial [defendant]. Grounds: Affirmed [defendant] Findings against plaintiff were not clearly erroneous. Plaintiff offered no evidence from which to infer that City's reasons for including his position in the RIF was pretextual, where RIF was necessitated by a budget shortfall and entailed 300-400 jobs, no one replaced those employees in their jobs, and plaintiff was not singled out (all timekeeping positions in the office were included on the RIF list).

Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 129 FEP 803 (7th Cir. 2016). Panel: EASTERBROOK, Posner, Hamilton. Claims on Appeal: Title VII termination (race, national origin, religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Court overrules all circuit authority since 1990s prescribing either evidence of a "convincing mosaic" or "direct" method of proof. "From now on, any decision of a district court that treats this phrase [convincing mosaic] as a legal requirement in an employment-discrimination case is subject to summary reversal, so that the district court can evaluate the evidence under the correct standard." Instead of deciding whether a particular category of evidence is "direct" or "indirect", court holds that "[e]vidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself-or whether just the 'direct' evidence does so, or the 'indirect' evidence. Evidence is evidence." Thus, district courts must stop separating 'direct' from 'indirect' evidence and proceeding as if they were subject to different legal standards." Opinion should not be taken as overthrowing the burden-shifting, inferential analysis of McDonnell Douglas. Based on record here, "[a] reasonable juror could infer that [the managers] didn't much like Hispanics (or Jews, though Ortiz is not Jewish) and tried to pin heavy losses on Ortiz to force him out the door. A juror also might infer that, because of Ortiz's ethnicity, Werner's managers fired him for using techniques that were tolerated when practiced by other brokers. In the end a jury might not credit Ortiz's evidence and could accept Werner's explanations. But given the conflict on material issues, a trial is necessary. District court also erred in holding that the plaintiff's recounting of what his managers told him was inadmissible hearsay. FRE801(d)(2)(D).

[Vacated for en banc review] Hively v. Ivy Tech Cmty. Coll., No. 15‐1720 (7th Cir. July 28, 2016). Panel: ROVNER, Bauer, Ripple. Claims on Appeal: Title VII hiring (sex). Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Title VII does not apply to claims of sexual orientation discrimination, declining invitation to overrule circuit authority.

Riley v. Elkhart Community schools, 829 F.3d 886, 129 FEP 675 (7th Cir.  2016). Panel: BAUER, Williams, Adelman. Claims on Appeal: Title VII (race and sex), § 1981, and ADEA promotions. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No pro se leniency where plaintiff who was originally not represented retrained counsel who worked for her for There years. Incident occurring before May 12, 2007 were time-barred. Failure to amend complaint to add newly exhausted charge of 2013 promotion forfeited the claim. Section 1981 claim for 2009 promotion fails at prima facie stage because the successful candidate was also black. Cannot prove a prima facie case regarding the 2010 academic dean positions because she never applied for the positions. On one position (Blazer Connection) presented no evidence of how the position offered a significant pay raise, increase in responsibilities, or boost in title, so no adverse action. On remaining claims, there is insufficient evidence to create a genuine dispute about whether failure to promote was a pretext for age, sex, and race discrimination. While plaintiff produced evidence that she has many years of teaching experience, has an administrator's license, and performed well in the past, as evidenced by a Teacher of the Year award, board was entitled to give other factors higher weight (experience as administrator, interview).

Poullard v. McDonald, 829 F.3d 844, 129 FEP 605 (7th Cir. 2016). Panel: HAMILTON, Wood, Manion. Claims on Appeal: 1. Title VII pay and classification (race, sex). 2. Title VII retaliation. 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. Lilly Ledbetter Fair Pay Act did not protect classification decisions (GS11 vs. GS13) from time bar, because it is not a compensation decision. Even if plaintiff presented pay-disparity case, summary judgment would be affirmed on alternative basis that there was no genuine dispute of material fact about identifying a similarly situated woman or white employee treated better. Supervisor was not proper comparator (time-in-grade, level of experience were different). 2. Thereats of unspecified disciplinary action do not constitute adverse actions because they had no effect on his compensation, career prospects, or conditions of employment. Some arguable, offensive racial incidents (reference to monkey, "sugar daddy," reference to hairstyle in photo) not severe enough to be adverse. "[B]efore and after his protected activity, the conditions of his employment remained exactly the same. His classification and pay remained GS‐11, and he continued to be responsible for managerial duties that he believed were beyond his grade." 3. There arguably race-tinged remarks did not rise to the level of severe or pervasive conduct, even if combined with other alleged adverse conduct.

Hatcher v. Southern Illinois Univ., 829 F.3d 531, 129 FEP 561 (7th Cir. 2016). Panel: WILLIAMS, Rovner, Shah. Claims on Appeal: 1. Title VII retaliation. 2. Title VII denial of tenure (sex). First Amendment claim (not discussed here). Disposition Below: 1. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff alleged plausible claim of retaliation for participation in filing an EEOC charge and an adverse employment action (denial of tenure). Causation was pled - short timing between the filing of the charge and Cheng's decision, the fact that the Chancellor declined to act on committee's tenure recommendation, and a lack of other allegations in the complaint which rule out retaliation as a cause for the decision. 2. Although plaintiff was able to point to ways in which tenure process lapsed (allegedly emphasizing negative comments, factual errors in denial record), facts collectively fail to establish that the reason given for denial was a pretext for sex.

Shott v. Katz, 829 F.3d 494, 129 FEP 533 (7th Cir. 2016). Panel: HAMILTON, Kanne, Sykes. Claims on Appeal: § 1981 retaliation. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Allegedly retaliatory acts (refusal to work with professional colleague) cannot plausibly be considered materially adverse. Moreover, decisions about which academic projects to pursue cannot be directed as part of a judicial order without implicating First Amendment protections.

Felix v. Wisc. Dep't of Transp., 828 F.3d 560, 32 A.D. Cases 1576 (7th Cir. 2016). Panel: ROVNER, Wood, Blakey. Claims on Appeal: Rehabilitation Act termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer established as a matter of law that it did not terminate plaintiff solely because of disability when it removed her from work because of dangerous, potentially suicidal even at work in presence of co-workers (she had attempted to cut her wrists, vocally bemoaned the dullness of the knife she had used, repeatedly said that she wanted to die, kicked and screamed). "[W]hen an employee's disability has actually resulted in conduct that is intolerable in the workplace, the direct-Threat defense does not apply: the case is no longer about potential but rather actual dangers that an employee's disability poses to herself and others." Submitting employee to evaluation does not convert qualified-to-work inquiry into a direct-Threat defense. Employer entitled to consider that after this incident, plaintiff was no longer a qualified person with a disability for purposes of her Rehabilitation Act claim. "Insisting that an employer make an immediate decision to fire an employee based on his unacceptable conduct in order to invoke Palmer-without the benefit of a professional opinion as to whether this likely was a one‐time incident or something that was bound to recur-would serve neither employer nor employee." Provider who examined her, at any rate, offered equivocal statements about her fitness to work.

Miller v. Greenleaf Orthopaedic Associates, S.C., 827 F.3d 569 (7th Cir. 2016). Panel: WILLIAMS, Flaum, Hamilton. Claims on Appeal: ADA termination. Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion by (1) denying plaintiff second and third opportunities (during defense case and rebuttal case) to impeach defense witness; (2) excluding plaintiff's written diary entries as "prior consistent statements" under FRE801(d)(1)(B), where one entry was silent on the key question of whether plaintiff told supervisor that she would not be attending jury duty for the rest of the week, and plaintiff was allowed to read the other entry into the record.

Brown v. Smith, 827 F.3d 609, 32 A.D. Cases 1587 (7th Cir. 2016). Panel: WILLIAMS, Bauer, Hamilton. Claims on Appeal: ADA termination. Disposition Below: Judgment after a jury trial ($25,200 in compensatory damages and $65,274.64 in back pay) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Central question was whether holding a commercial driver's license (CDL) was an "essential function" for a street supervisor at the City of Anderson Transit System (CATS). Plaintiff lost his CDL because of his health condition (diabetes), but "[f]or nearly a decade, this development proved irrelevant," because as a mechanic and later a supervisor, he did not have to get behind the wheel. Record showed that supervisors seldom had to drive and substitute drivers could be procured. Jury properly allowed to decide "essential function" issue City waived any challenge to the jury's finding here by not challenging the verdict in a post-trial Rule 50 motion. Even without the City's waiver, verdict on this element was sound. Not only did street supervisors seldom drive buses, but in the unusual instance where a bus had to be moved, replacement drivers with CDLs were easily procured: "Brown and ... another street supervisor ... testified that replacement drivers could generally be secured within 10 minutes, which allowed street supervisors to focus on ensuring that other bus drivers were operating adequately." Jury was properly instructed on "essential function" because it permitted the jury to infer that a duty was not essential if it was not performed very often. Of course, "federal regulations unambiguously state that '[e]vidence of whether a particular function is essential includes, but is not limited to,' time spent performing the function. 29 C.F.R. § 1630.2(n)(3)." Yet the city argued that the time factor was "not relevant" in this case "because the emergencies that would force a street supervisor to drive a bus would infrequently occur." While the city was free to argue this point to a jury, it did not make the time spent driving irrelevant to the inquiry, but only one of several factors the jury could weigh. Jury also has sufficient evidence to find that plaintiff mitigated his damages self-employment - running a truck-driving business "For one, hauling trailers across the country is certainly related to Brown's various positions at CATS, which involved driving, fixing, and supervising the operation of municipal buses. Moreover, during 2012, Brown made 63 trips over 187 days as he worked to establish his business. And he shut down operations not because he became bored with the work, but because he was unable to generate sufficient profits."

Wheatley v. Factory Card and Party Outlet, 826 F.3d 412, 32 A.D. Cases 1457 (7th Cir. 2016). Panel: ROVNER, Williams, Shah. Claims on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine issue of material dispute about employee not being able to perform the essential function of attendance at work, where she was medically restricted to immobilization. Doctor who could have testified on an earlier release from medical restriction properly excluded for failure to disclose witness as expert. While employee stated that she was able to return to work full time if she would have been allowed to use a medical boot, there was no record evidence that the boot was an appropriate treatment for her injury or that it would have allowed her to walk and stand sufficient to perform her job. Even after two months of wearing the medical boot, based on her own testimony she could walk or stand for only a couple of hours at a time, while nurse managing job required more time on her feet. Testimony that she must be on her feet for a "good number of hours" but that there was a "decent amount of time" when she did not need to be on her feet is too general to provide any guidance to a jury. Attending Physician Statement, admissible as a business record (FRE803(6)), indicated longer recovery period.

McCurdy v. Fitts, 826 F.3d 421 (7th Cir. 2016). Panel: EASTERBROOK, Wood, Bruce. Claims on Appeal: § 1983 hiring (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: While state law enforcement agency did not discriminate in not hiring woman officer who failed to pass background check (investigated exactly the same way as other applicants), district court failed to consider alternative theory that keeping her in the deputy's job pending the background check was an instance of sex discrimination, where plaintiff asserted that men were always automatically permitted to transfer immediately.

Roberts v. Columbia College Chicago821 F.3d 855, 129 FEP 77 (7th Cir. 2016). Panel: BAUER, Hamilton, Peterson. Claims on Appeal: ADEA termination. Contract claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Comment by department chair that plaintiff and other older members of the faculty did not fit the "image" that chair desired to create, as he wanted to portray a "young and hip look for the program" (and declarations of other older faculty members) did not support inference of discrimination by direct method, where another administrator made decision to fire plaintiff for plagiarism. Cat's-paw liability rejected where there is no evidence that allegedly biased chair "manipulated" or "decisively influenced" decision to terminate plaintiff's employment, made pursuant to her own investigation into whether to terminate employment, plaintiff did not contest accuracy of report, and no evidence that any other tenured professor of any age was treated differently.

Wells v. Winnebago County, 820 F.3d 864, 129 FEP 7, 32 A.D. Cases 1348 (7th Cir. 2016). Panel: EASTERBROOK, Bauer, Hamilton. Claims on Appeal: Title VII (race) and ADA discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred in holding that County was not plaintiff's employer, and therefore not responsible for complying with federal employment-discrimination statutes. The County hired and paid her, and it was identified on tax forms as her employer. Despite that state employees were involved in decisions and court was a unit of state government, county had responsibility to control working conditions. Summary judgment affirmed on ground that denial of accommodations was not shown to be predicated on race, and she furnished no record evidence supporting contention that her disability (chronic fatigue syndrome) adversely affected her ability to deal with the public in an open setting.

Kuttner v. Zaruba, 819 F.3d 970 (7th Cir. 2016). Panel: SYKES, Easterbrook (POSNER, dissenting). Claims on Appeal: Title VII termination and promotion (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Court ordering January 1, 2006 outer boundary for discovery of personnel records was not abuse of discretion. Reason for imposing time limit was to rein in "overly broad and unduly burdensome" discovery expedition, "perhaps exemplified most starkly by the request for the personnel records of Sheriff Zaruba's wife, who could not possibly have served as a legitimate comparator and was presumably targeted solely for harassment and humiliation." Denial of reconsideration motion There months later and right before discovery cutoff (already extended twice) not abuse of discretion. Protective order against asking witness whether she had ever heard or seen any deputy violate any departmental policy or rule proper. On merits, plaintiff did not identify any similarly situated male employee who received more favorable treatment for comparable infraction (using sheriff's uniform to intimidate debtor). Other misconduct distinguishable because there were no allegations of coercion by the use or appearance of legal authority. Plaintiff never applied to be promoted, so makes no prima facie case for denial of promotion.

Chaib v. Geo Group, Inc., 819 F.3d 337, 128 FEP 1809 (7th Cir. 2016). Panel: PETERSON, Bauer, Hamilton. Claims on Appeal: Title VII (sex, race, national origin) and § 1981 termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff cannot prove claim through direct method; no evidence that person who allegedly harassed plaintiff was involved in decision to terminate. Under burden-shifting method, plaintiff fails to make out prima facie case because (1) she cannot show that she was meeting legitimate job expectations because her undisputed conduct was inconsistent with her statements about the extent of her post-injury impairments, deemed "unbecoming conduct" under its employee conduct standards, and (2) plaintiff fails to identify any other employees who were fairly comparable and were treated more favorably than she was. Even if she made out a prima facie case, employer had legitimate, non-discriminatory reason (deceiving employer about health). Prior racist events did not establish pretext, because employees involved in that activity were not connected to management employees who made termination decision.

Roberts v. City of Chicago817 F.3d 561, 32 A.D. Cases 1179 (7th Cir. 2016). Panel: FLAUM, Ripple, Peterson. Claims on Appeal: ADA hiring. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Applicants in Lewis v. City of Chicago failed to qualify for first-come, first-serve hiring preference under decree. Failure to hire due to delay in medical clearance, even if that delay was caused by their disabilities, not disability discrimination. Open question whether the ADAAA, which changed the statute's causation language from "because of" to "on the basis of," alters substantive standard. No disparate impact due to failure to show policy operated against a class of disabled applicants. No contention that medical screening violated 42 U.S.C. § 12112(d).

Boss v. Castro816 F.3d 910, 128 FEP 1713 (7th Cir. 2016). Panel: REAGAN, Easterbrook, Ripple. Claims on Appeal: 1. Title VII discrimination (race). 2. Title VII retaliation. 3. Title VII and § 1981 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. Defendant [affirmed]. Grounds: 1. Placement on the PIP, being charged AWOL, and inordinately strict application of HUD's telework policy not adverse employment actions. 2. A single reassigned day of flexible worktime, charge of AWOL, downgrade on evaluation from "highly" to "fully successful," and placement on PIP not materially adverse. Moreover, employers adduced evidence showing that plaintiff failed to meet their legitimate expectations, thereby rebutting any presumption that their actions were taken in retaliation for EEOC case. 3. PIP, the AWOL marks, job assignments, and supervisor "criticism" not severe or pervasive.

Liu v. Cook County, 817 F.3d 307, 128 FEP 1692 (7th Cir. 2016). Panel: HAMILTON, Posner, Manion. Claims on Appeal: 1. Title VII and § 1981 termination (sex, race) and retaliation. 2. Title VII and § 1981 harassment). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No genuine dispute that surgeon was suspended and not renewed for failing managing appendicitis as per the accepted standard of care at hospital, resulting in some of her patients experiencing complications. Determinations were affirmed no fewer than six times by different medical committees. Merely continuing to defend on the merits her decisions not to operate on patients with appendicitis did not create genuine dispute; even if plaintiff were ultimately correct that her non-surgical approach to appendicitis treatment will prove to be sound, hospital was entitled to insist that she follow its protocols. Employer had encouraged plaintiff to operate on appendicitis patients or to consult with a colleague if she believed operating was inappropriate in a given case, but she repeatedly refused to comply. No comparable doctor who (1) managed appendicitis non-operatively after explicit instructions not to do so; or (2) caused, or appeared to cause, the complications that plaintiff's treatments appeared to cause. 2. Memo stating that "American surgeons" treat appendicitis with surgery cannot support her theory that national-origin bias motivated the defendants' behavior. Several other comments unconnected in any way to the memoranda and reprimands she received much later 

Formella v. Brennan, 817 F.3d 503, 128 FEP 1525 (7th Cir. 2016). Panel: BAUER, Flaum, Hamilton. Claims on Appeal: 1. Title VII (reverse race) and ADEA transfer and promotion. 2. Title VII and ADEA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Agency waived any timeliness arguments with regard to the denial of the non-competitive transfer by failing to raise below. When overtime pay or premium pay is a significant and expected part of an employee's annual earnings, denial of such pay may constitute an adverse employment action. On reverse-race discrimination claim, plaintiff failed to present "background circumstances" to show that commanding officer (who is white) was inclined to discriminate against plaintiff (who is also white). Plaintiff also failed to produce comparators. Only officer identified who was supposedly allowed to transfer unsupported by record evidence (only plaintiff's own testimony, and he lacked personal knowledge). No evidence whether, in case of alleged comparable, a vacancy had been posted prior to requesting a non-competitive transfer. Regarding promotion, that successful candidate was supposedly "less qualified" (as evidence of pretext) created no genuine dispute where it was undisputed that all candidates were found qualified, and successful candidate scored highest on interview. 2. Requiring employee to use an addition al week of sick leave to obtain a second doctor's note may be materially adverse, but plaintiff failed to show that no direct or circumstantial evidence that rejection of original doctor's note was the result of plaintiff's filing of the EEO complaints.

Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 128 FEP 1539 (7th Cir. 2016). Panel: SHAH, Wood, Rovner. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Insufficient employees to meet 20-employee minimum. Parties disputed status of There employees at services company that was sister business to defendant, who plaintiff contended were joint employees. Under economic-realities test, record silent about whether defendant could have terminated the There employees, directed them in any way, gave them training, or provided them with equipment, or paid them. Employers could not be aggregated, under veil-piercing theory, because there was no evidence that employer divided itself up to evade law, and companies observed formalities of separate organizations. Statements on webpage that organizations were integrated not a contrary admission. Nor was it the affiliate that recommended plaintiff's termination.

Boston v. U.S. Steel Corp., 816 F.3d 455, 128 FEP 1471 (7th Cir. 2016). Panel: FLAUM, Bauer, Sykes. Claims on Appeal: Title VII and ADEA retaliation. State tort claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Prior disqualifications were time-barred or not part of charge. Regarding the one timely, exhausted claim, no record evidence that decision maker was aware of EEOC charge. Using indirect method, no genuine dispute about whether plaintiff was meeting her employer's legitimate expectations or that she was treated less favorably than similarly situated employees. Also fails to offer proof that employer's proffered nondiscriminatory basis for termination (job performance) was a pretext. Cat's-paw theory fails: comment by supervisor ("I'm not going to train somebody so the next time that we ... get laid off, I get laid off. I'm not training a union person for that. I don't care what you filed") ambiguous, lagged 15 months behind filing of EEOC charge, record devoid of evidence of how comparable employees were treated.

EEOC v. Aerotek Inc., 815 F.3d 328, 128 FEP 1478 (7th Cir. 2016). Panel: ROVNER, Kanne, Hamilton. Claims on Appeal: EEOC subpoena enforcement action. Disposition Below: Subpoena enforced [plaintiff]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Subpoena to staffing agency could be directed at information about all 22,000 clients, not just the 62 who were known to have made age-biased requests. Identification of clients will allow EEOC to investigate discriminatory activity that has not been recorded in the agency's database. No undue burden because actual process of producing data imposes little burden; agency maintains a database containing all requested information.

Pickett v. Sheridan Health Care Cntr., 813 F.3d 640 (7th Cir. 2016). Panel: WILLIAMS, Posner, Sykes. Claims on Appeal: Title VII retaliation. Disposition Below: Attorney's fee reduced [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court appropriately applied mandate from Pickett v. Sheridan Health Care Ctr., 664 F.3d 632 (7th Cir.2011). Lodestar of $425/hour did not improperly consider effect of client's contingency fee, and appropriately considered the balance of the evidence. No error to consider disciplinary record, which affects reputation. Requests for partial pre-judgment interest and fees-on-fees were waived.

Deets v. Massman Constr. Co., 811 F.3d 978, 128 FEP 1248 (7th Cir. 2016). Panel: WILLIAMS, Wood, Posner. Claims on Appeal: Title VII and § 1981 termination (reverse-race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: White construction worker contends he was laid-off to help employer keep minority hiring numbers at contractual targets; project superintendent supposedly said "[m]y minority numbers aren't right. I'm supposed to have 13.9% minorities on this job and I've only got 8%," and told co-worker (affidavit) plaintiff was fired "because there was an insufficient number of non‐white workers at the Worksite." Statement was direct evidence of racial motive. Court also erred in disregarding the co-worker affidavit. Could also establish circumstantial case: government agency was out of compliance with goals, agency hired Black oiler after firing plaintiff, and lack-of-work was pretextual because employer knew that crane where plaintiff worked was going back into operation the next day. Mitigation defense to damages only. All members of joint venture could be sued.

Bordelon v. Bd. of Edu. of the City of Chicago, 811 F.3d 984, 128 FEP 1243(7th Cir. 2016). Panel: WILLIAMS, Wood, Posner. Claims on Appeal: ADEA renewal of contract. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff was school principal who was not renewed. Remark by decision-maker that "more or less suggested ... [t]hat it was time for [plaintiff] to give it up" not probative, because it neither directly not in context refers to age, and clear inference was that it referred to declining scores at school where plaintiff worked. Evidence that there was a list of five or six "older black principals to be disciplined" not probative where nearly all possible comparators were in protected-age group, one was significantly younger, other were either unknown or also in disciplinary trouble. Reference to decision-maker wanting someone "younger and brighter" not probative where clear inference was "more education, or maybe she has a field in that position." Conclusory evidence that older candidates were treated relatively worse, even if admissible, lacked specific facts in support. Statement president of the Chicago Principals and Administrators Association not admissible as part admission under FRE801(d)(2)(D), as witness was not decision-maker or authorized to speak by board. Cat's paw fails because plaintiff did not point to evidence "that the biased subordinate actually harbored discriminatory animus against the victim of the subject employment action," plus there was substantial evidence from council having independent reasons for not renewing contract.

Bagwe v. Sedgewick Claims Mgt. Sevs., 811 F.3d 866, 128 FEP 1253 (7th Cir. 2016). Panel: RIPPLE, Flaum, Sykes. Claims on Appeal: 1. § 1981, Title VII, and Ill. state law termination. 2. § 1981, Title VII, and Ill. state law compensation. 3. § 1981, Title VII, and Ill. state law 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 direct method, plaintiff failed to make out circumstantial case. Employee had complaints about her inability to work with others and company earlier had placed her on a PIP, plus "continuing lack of trust" and "continuing excessive emails." No shifting explanations, where employer expressed same complaint in different words (interfering with others; morale low in office). Consistent rationale for termination (ineffective leadership skills) obviates any distinctions in witness testimony about how termination was decided. No evidence that email with list of reasons for termination was solicited to provide after-the-fact support. Plaintiff also failed to present any regularly enforced company policy that employer failed to follow. Record does not support argument that managers knew that plaintiff supposedly got along well with staff. Alleged statement to potential employer that plaintiff was "problem" inadmissible hearsay; no record to support that it was "present sense impression" except other hearsay. Even if admissible, statement does not mention race, retaliation, or anything improper. Treatment of white successor not probative, as he was also fired. Evidence that white and American employees were paid more not probative because it provided not background about other employees whom she sought to compare herself. Comments by supervisors ("old Indian husband," comparing plaintiff unfavorably to another Indian relative) not probative because they were unrelated to work and made in settings outside of the workplace. "Indian bitch" comment, while marginally probative, raises no inference of discrimination where undisputed facts show that employer terminated plaintiff because of interpersonal concerns, and there were There other decision-makers involved in termination. Under indirect method, no comparators identified. 2. Although some claims were time-barred, at least one was not. But no comparators identified and no circumstantial evidence. 3. Assuming that conversation about discrimination was protected activity, no genuine dispute about causation. Comments supposedly singling plaintiff out for retaliation ("not going to be able to stop" manager) occurred prior to their knowing about protected activity and were too generic to imply retaliatory action. PIP not adverse action. In any event, timing of PIP suggests direct relation to plaintiff's confrontation of other employees. Company's investigation of a plaintiff immediately after she makes a complaint is "not suspicious," because the company might well need "to determine whether there was a larger problem." Termination came after numerous complaints from coworkers and plaintiff's placement on a PIP.

Jaburek v. Foxx, 813 F.3d 626, 128 FEP 965 (7th Cir. 2016). Panel: BAUER, Wood, Williams. Claims on Appeal: 1. Title VII promotion (sex, national origin). 2. Equal Pay Act. 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 never applied for promotion, so cannot make out prima facie case. Plaintiff's testimony that she made request for desk audit (when supervisory authorities assess an employee's duties and pay) insufficient to present genuine issue of material dispute where she did not specify when she made this request, nor did she give any detail about what she said and whether her request was a step toward a request for a promotion. Record also lacks evidence that agency promoted anyone else to the position. 2. Alleged male comparators were office in other facilities, and were identified by names and titles, without a description of any "common core of tasks" or any further description of the male employees' duties, hours, background, or qualifications. 3. While plaintiff identified an "adverse employment action," i.e., "to remove [plaintiff] from more challenging duties and confine her more strictly to an administrative role," no evidence that employee had complained of discrimination before reassignment.

EEOC v. AutoZone Inc., 809 F.3d 916, 32 A.D. Cases 803 (7th Cir. 2016). Panel: BAUER, Ripple, Rovner. Claims on Appeal: ADA reasonable accommodation. Disposition Below: Judgment following a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Denial of motion for a new trial on manifest weight of the evidence not abuse of discretion. Record allowed jury to find that employee was not a qualified individual. She was unable to lift more than 15 pounds with her right arm, and job functions included lifting and moving the items at the store, as well as the items brought in by the customers, at least 30‐40 times per day (customer service, arranging store displays, unloading trucks). Lifting requirement was also in job description. Only other employee in store with similar restriction was part‐time employee with a different position. No abuse of discretion in denying EEOC's proposed "team concept" instruction, where record did not show a distribution of labor system in which the "normal course" was for employees to substitute and reassign discrete tasks involving lifting certain heavy items and in exchange other employees did not do discrete tasks that they were unable to do. Also, no prejudice to EEOC: judge allowed agency to make its team concept argument to the jury in its closing arguments, which it then forfeited.

Brown v. UAL Corp., 809 F.3d 361 (7th Cir. 2015). Panel: HAMILTON, Bauer, Posner. Claims on Appeal: ADA termination. Disposition Below: Bankruptcy court denial of motion to reopen company's Chapter 11 bankruptcy [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Court did not abuse discretion when it declined to reopen a complex bankruptcy a full There years after it ended, and the moving party had done nothing to protect his interests for nearly a decade. Although court below erred by not docketing his case as an adversary proceeding, plaintiff offered no reason for waiting so many years to tell the court of its mistake.

Tate v. SCR Medical Transp., 809 F.3d 343, 128 FEP 773, 32 A.D. Cases 729 (7th Cir. 2015). Panel: POSNER, Bauer, Hamilton. Claims on Appeal: Title VII (sex) and ADA harassment and retaliation). Disposition Below: Dismissed under 28 U.S.C. §1915(e)(2)(B)(ii) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff adequately pled Title VII claims. He prepared complaint form supplied to him by the district court, which did not require, or appear to permit, extensive factual detail, providing only six lines for listing "the facts supporting the plaintiff's claim of discrimination." ADA claim fails because plaintiff does not identify disability. Other violations that plaintiff cites-sexual harassment, discrimination on the basis of his sex, and retaliation for engaging in protected activity-are adequately alleged under circuit standards. Court also erred by dismissing before plaintiff had full 21-day period under FRCP15(a)(1) to re-plead without leave of court.

Carothers v. County of Cook, 808 F.3d 1140, 128 FEP 784, 32 A.D. Cases 731 (7th Cir. 2015). Panel: BAUER, Flaum, Manion. Claims on Appeal: 1. ADA termination. 2. Title VII termination (sex, race). 3. Title VII retaliation. State retaliatory discharge 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. Anxiety disorder that prevented employee from interacting with juvenile detainees at place of work did not substantially limit employee in major life activity of working, where there was no record that the anxiety disorder would prevent her from engaging in any other line of occupation. Though plaintiff waived argument, panel also holds that anxiety disorder did not impair her interactions with all children. 2. Comment about "tak[ing] someone to the woodshed," comment about Malcolm X, and prior race discrimination lawsuit did not constitute direct evidence where there was either no racial overtone or it was too remote in time to infer causation. Using indirect method, employee fails to present prima facie case because she was not meeting legitimate expectation of employer by refusing without explanation to submit disability paperwork and she exceeded permissible absences. Also, plaintiff failed to develop record concerning white male alleged to be comparable in absenteeism and disability status (no record of his title, qualifications, or interactions with juveniles. Other asserted comparable lacked absenteeism record. Plaintiff also failed to established that she applied for transfer, so she could not compare herself to white woman who received transfer. 3. Allegation that employer refused to allow plaintiff to take necessary work exam after she filed EEOC charge not supported by any evidence implying causation.

EEOC v. CVS Pharmacy,  Inc.809 F.3d 335, 128 FEP 797 (7th Cir. 2015). Panel: FLAUM, Manion, Rovner. Claims on Appeal: Title VII pattern-or-practice of resistance. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: EEOC obliged to conciliate claims brought under section 707(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e‐6, for pattern-or-practice of resistance to Title VII. Alternatively, EEOC's complaint about company's form release fails on the merits. Agreement makes clear that it does not obstruct the signatory's ability to file a charge with the EEOC. The Agreement stipulates that "nothing" precludes the signatory from "participat[ing]" in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws," and that the signatory may "cooperate with any such agency in its investigation." (EEOC also may not proceed without filing of valid charge, even if claim is pattern-or-practice.)

Dunderdale v. United Airlines, Inc.807 F.3d 849, 32 A.D. Cases 621 (7th Cir. 2015). Panel: BAUER, Rovner [RIPPLE, dissenting]. Claims on Appeal: ADA reasonable accommodation. Disposition Below: Summary judgment [defendant].  Outcome on Appeal: Affirmed [defendant]. Grounds: Employee presented a genuine dispute of material fact about whether he was a qualified person with a disability; there was lifting requirement of 70 lbs, but he could perform the essential functions of the ramp serviceman position because employer transferred him to Matrix position that he held for over five years and only lost due to change in bidding policy, rather than inability to perform the position's tasks. Summary judgment affirmed on ground that under US Airways, Inc. v. Barnett, employer could enforce seniority system. No "special circumstances" warranting the exception, where employer consistently enforced policy. While employer was consistent in its policy of using the Matrix position to accommodate certain employees with disabilities, union members began to question their inability to bid for the position and employer; employer then strictly enforced system Employer could change Matrix position; not obliged to maintain positions or job structures that provide reasonable accommodations if the employer finds, for legitimate business reasons, that the position or job structure should be eliminated. Plaintiff also failed to establish, for other proposed accommodation, that there were any vacancies in no-bid positions. Also, undisputed that employee failed to apply for any other position with employer while he was on leave.

Moreland v. Johnson, 806 F.3d 961, 128 FEP 579 (7th Cir. 2015). Panel: POSNER, Wood, Williams. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment on the pleadings, FRCP12(c) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Although regulation (29 C.F.R. § 1614.107(a)(8)) provides that complaints about agency's processing of complaint must be made during same, underlying proceeding - not a new action - it was error to dismiss second action here. Employee was not expressing "dissatisfaction with the processing of a previously filed complaint," but with failure to pay her travel expenses as witness, while paying expenses of co-workers her were called to testify against her. Moreover, agency had actually finished processing the plaintiff's first complaint when she made her retaliation claim, so regulation did not cover situation. Finally, no exhaustion was required where failure to amend the original charge to reflect a new claim is due to the fault of the EEOC; here, administrative judge told her (as pro se litigant) that she could not raise her retaliation claim in her original charge. Because the EEOC administrative judge directed plaintiff to file a separate complaint and EEOC OFO failed to consolidate her separate complaint with the original, it is the EEOC's fault that the retaliation claim did not become part of the original case.

Smith v. Chicago Transit Authority, 806 F.3d 900, 128 FEP 584 (7th Cir. 2015). Panel: SYKES, Easterbrook, Hamilton. Claims on Appeal: Title VII and § 1981 termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Panel observes that controlling Supreme Court authority compels continued application of separate direct-indirect methods of proof. Plaintiff's contention that an unwritten policy granted EEO Unit exclusive authority to investigate sexual-harassment complaints, while operations departments conducted their own less-rigorous investigations when white employees were accused of harassment, fails because of eight identified cases so handled, four involved black employees and two involved Latinos. Alleged failures in investigative process do not support inference of discriminatory intent. Under direct approach, no prima facie case because there is no evidence of non-black employee treated more leniently in sex harassment investigation; one white manager was identified, but no details given about his supervisor, the results of investigation, or discipline levied.

Hooper v. Proctor Health Care, Inc.804 F.3d 846, 32 A.D. Cases 293 (7th Cir. 2015). Panel: ELLIS, Kanne, Sykes. Claims on Appeal: 1. ADA reasonable accommodation. 2. ADA termination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Failure to reasonably accommodate not alleged in complaint (no citation to 42 U.S.C. § 12112(b)(5), nor factual allegations that would give rise to such a claim such as suggested accommodations). Moreover, there is no genuine issue of material fact that plaintiff did not require accommodations. Plaintiff was cleared to return without accommodations, so claim would also fail on the merits. 2. Regardless of whether claim is evaluated under direct or indirect method, plaintiff establishes no genuine dispute that employer discriminated against him on the basis of his disability. Plaintiff presented no evidence of similarly situated individuals. Nor did plaintiff establish dispute that termination for failure to return to work was pretextual. He was recalled to work on first date that doctor communicated to employer that he was cleared to return, and made multiple attempts to communicate with employee when he did not return. Comment was made four months before the termination decision about bipolar relative, unconnected to decision, not causally related ("stray remark"). "If anything, the evidence shows that Proctor acted quickly to bring Hooper back to work once it learned his bipolar disorder did not pose any harm" to plaintiff.

Huri v. Office of the Chief Judge of the Circuit Court of Cook County804 F.3d 826, 128 FEP 290 (7th Cir. 2015). Panel: REAGAN, Bauer, Sykes. Claims on Appeal: 1. Title VII and § 1983 harassment (religion, national origin). 2. Title VII and § 1983 retaliation. Disposition Below: 1. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. 2. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. District court erred in dismissing case for failure to complete charge-filing requirement. Plaintiff preserved harassment claim despite not mentioning "hostile work environment," where charge mentions harassment. Complaint plausibly state harassment claim by describing protected class (national origin and /or religion); the whom (Plaintiff's supervisors); and the when (from 2002 through the date suit was filed). Plaintiff alleged that she was harassed, and it is certainly within reason to conclude that Defendants, due to garb and appearance knew she was a Muslim and an Arab. Dismissal of individual defendants premature. Qualified immunity is improper where, as here, the asserted right is clearly established at the time the conduct occurred, and alleged conduct violated Equal protection. Defendants failed to argue in district court whether Cook County is a proper party to the lawsuit. 2. Also plausibly alleged  retaliation by citing protected activity by filing EEOC charges and making internal complaints and acts of retaliation (screaming, false disciplinary reports, mistreatment of her daughter, exclusion from social functions, denial of time off).

Woods v. City of Berwyn, 803 F.3d 865, 128 FEP 129 (7th Cir. 2015). Panel: WILLIAMS, Kanne, Hamilton. Claims on Appeal: AD and ADEA termination. FML and state law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No cat's-paw liability, where city board's formal and adversarial procedures and evidence that the board relied on to support its decision to terminate was independent of officer who first recommended plaintiff for termination. While a formal adversarial procedure does not automatically break the chain of causation, here the record shows that the board did not rely on the facts presented by the presumably biased officer. Also, board - not the officer - had the ultimate firing power.

Boutros v. Avis Rent A Car System, LLC802 F.3d 918, 128 FEP 86 (7th Cir. 2015). Panel: SYKES, Wood, Easterbrook. Claims on Appeal: Title VII termination (race). USERRA claim (not discussed here). Disposition Below: Judgment following a jury trial [defendant]. Outcome on Appeal: Affirmed with sanctions [defendant]. Grounds: Plaintiff who was fired for alleged dishonesty and insubordination, in connection with investigation of fire-extinguisher discharge, presented no reversible trial error. Challenge to FRE403 ruling was frivolous; plaintiff did not preserve error, and even if he did that was no error in admitting defense witnesses' non-hearsay statements of why employer decided to terminate plaintiff. Court also gave limiting instruction to prevent any misuse of the evidence.

Rahn v. Northern Illinois Univ. Board of Trustees802 F.3d 918, 128 FEP 86 (7th Cir. 2015). Panel: ROVNER, Wood, Springmann. Claims on Appeal: Title VII hiring (reverse race). Copyright claim (not discussed here) . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Statement by one board member regarding hiring a qualified minority candidate over a white one is not direct evidence that he was not hired because of plaintiff's race, because board member was not involved in decision to remove plaintiff from consideration; nor was there evidence that comment influenced other decision makers. Under indirect method, there was no evidence that contradicted proffered justification (superior qualifications by successful applicant).

Bisluk v. Hamer, 800 F.3d 928, 127 FEP 1729 (7th Cir. 2015). Panel: WILLIAMS, Wood, Posner. Claims on Appeal: Equal Protection transfer (sex). First Amendment claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: While there was some evidence that defendant was critical of plaintiff and she was subject to more scrutiny compared to male employees, there was no genuine dispute that plaintiff did not receive the transfer because she did not submit the proper transfer paperwork or apply for the job. Moreover, plaintiff did not present evidence of a relevant comparator, i.e., male employee who held the same job, was subject to the same standards, was subordinate to the same supervisor, and had comparable qualifications who received a transfer.

Arroyo v. Volvo Group North America, LLC, No. 14-3618 (7th Cir. Oct. 6, 2015). Panel: KANNE, Bauer, Williams. Claims on Appeal: 1. AD and Rehabilitation Act termination. 2. AD and Rehabilitation Act retaliation. 3. AD and Rehabilitation Act reasonable accommodation. USERR 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. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Genuine dispute of material fact where internal emails indicate that (a) management considered disciplining plaintiff for her absences while she was in the hospital in December 2010, even though she emailed company about her PTSD condition; (b) a supervisor joked about plaintiff's absence, writing that she heard rumors plaintiff was actually vacationing in Hawaii; (c) a few weeks earlier, manager complained that plaintiff was "really becoming a pain with all this"; (d) series of disciplinary steps that led to her termination coincided temporally with the onset and diagnosis of PTSD. 2. Statutorily protected activity in which she engaged-her internal complaint, EEOC complaint, and accommodation requests in 2011-all came after employer began disciplining her for her tardiness. 3. No genuine dispute of material fact that employer made numerous accommodations so that plaintiff could cope with PTSD, and was considering other requests and investigating Arroyo's complaints through an interactive process. Plaintiff refused to meet with the HR representative assigned to her case.

Packer v. Trustees of Indiana Univ.800 F.3d 843, 127 FEP 1748 (7th Cir. 2015). Panel: ROVNER, Bauer, Hamilton. Claims on Appeal: 1. Title VII pay and termination (sex). 2. Title VII retaliation. 3. Equal Pay Act. 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. In responding to substantive arguments made by employer in seeking summary judgment, plaintiff failed to support her factual assertions with appropriate citations to relevant portions of the record to pinpoint disputed issues of fact. Deficiencies could not be corrected on appeal. Plaintiff failed to identify (with proper cites) men who supposedly received better pay, raises, promotions, and favorable lab assignments. Plaintiff submitted own affidavit on disparate grant funding, but it failed to establish personal knowledge about what happened to men's funding. Charts supposedly comparing salaries of male and female associate professors do not reveal other relevant factors, such as length of service, and lacked foundation. Remark to a female professor that an early-retirement package was "better than nothing" does not support an inference of bias against female faculty members. Plaintiff also cited no evidence satisfying the elements of a prima facie case of discrimination under McDonnell Douglas. 2. Alleged statement by department chairman that dean wanted her "out of the department" does not make causal link between protected opposition to discrimination and allegedly adverse actions. 3. Plaintiff failed to identify male comparator who supposedly was paid more than she was.

Harden v. Marion County Sheriff's Dep't, 799 F.3d 857, 127 FEP 1600 (7th Cir. 2015). Panel: KENNELLY, Ripple, Rovner. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Accusation of a different person as theft offered to prove that the Sheriff's Department was aware of (and ignored) another suspect, , thus "used only to show notice" and not hearsay. Though it was error to exclude the remark, it is not reversible error because even including the remark does not change the outcome. Temporal proximity alone does not establish causation. Although arguably harassed by superior officers, there is no causal connection between these individual officers and the Internal Affairs investigators and higher‐ups who made the decision to terminate plaintiff. Failure to raise argument regarding non-production of Internal Affairs transcripts until oral argument too late. No reasonable jury could find that the Internal Affairs investigation was unworthy of credence-that is, a "sham" investigation-where there were facts that plausibly supported theory that plaintiff stole $100 (he was only officer in back room, failed to inventory amount of money recovered). Despite differences between criminal investigation (where he was not charged) and Internal Affairs investigation, there is no evidence that the latter was conducted dishonestly. Department followed up leads on another suspect. No evidence of "selective investigation."

Preddie v. Bartholomew Consolidated school Corp., 799 F.3d 806, 127 FEP 1617(7th Cir. 2015). Panel: Per curiam (Flaum, Ripple, Williams). Claims on Appeal: 1. ADA reasonable accommodation. 2. ADA retaliation. 3. Title VII, and §§ 1981, 1983, 1985 and 1986. FMLA 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. No genuine dispute that the plaintiff never requested an accommodation, nor met the definition of a qualified individual with a disability under the ADA. Plaintiff's unplanned and sporadic attendance (twenty-There absences) prevented him from performing the essential functions of his teaching position. 2. Requests for his own health-related leave, without more, does not qualify as "protected activity" under the ADA. 3. Plaintiff fail to identify relevant, white employees who were granted medical leaves. Record did not show that other teachers had a comparable record of performance problems. Plaintiff was also not satisfying the employer's reasonable expectations.

Wright v. Illinois Department of Children and Family Services798 F.3d 513, 31 A.D. Cases 1641 (7th Cir. 2015). Panel: RIPPLE, Rovner, Kennelley. Claims on Appeal: ADA medical evaluation, 42 U.S.C. § 12112(d)(4)(A) and constructive discharge. Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: All employees, regardless of whether they have a qualifying disability under the ADA, are protected under medical inquiry subsection. During first trial, jury could have found the evidence submitted at trial was insufficient to establish, as a matter of law, that requiring plaintiff to undergo a fitness-for-duty evaluation was consistent with business necessity. Employees were typically permitted to transfer to desk duty during FFD examinations, while plaintiff for almost two months continued to oversee her normal case load, which included a new sensitive case. Had department if "sincerely believed that [Ms.] Wright was a risk to children," she would have removed her from those cases and "would not have [been] assigned ... a new case." District court did not err in granting new trial based on instructional error. Instruction on constructive discharge "unduly focused on the employee's subjective perception of the employer's actions that allegedly communicated to the employee that dismissal was inevitable." A finding that plaintiff reasonably believed that she would be fired is not the same as a finding that a reasonable employee in employee's position would believe, based on the Department's actions, that she imminently and inevitably would be terminated. Finally, Plaintiff presented no genuine dispute at second trial about constructive discharge. Even under handwriting-on-the-wall theory, plaintiff continues to have burden to prove that her working conditions had become intolerable. Employee does not demonstrate that she was discharged constructively simply when she receives notice of her employer's intent to commence a process that could lead to her discharge and "the employer [did] not undermine the employee's position, perquisites, or dignity in the interim." There was no evidence that Department had planned to fire her, nor that she was given unreasonable duties.

Chicago Teachers Union, Local No. 1 v. Board of Education of the City of Chicago797 F.3d 426, 127 FEP 1495 (7th Cir. 2015). Panel: ROVNER, KAnne, Springmann. Claims on Appeal: Title VII disparate impact layoffs (race). Disposition Below: Class certification denied [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Lawsuit challenging city school board's policy of placing schools on suspension - primarily affecting minority neighborhoods - and firing teaching staff. In the 2012 process, 226 schools in the system were deemed eligible for turnaround under state law based on falling into the lowest academic level, level There (plus some addition al schools that fell into level two were eligible because they were currently on probation). This group was winnowed down to 74 "by removing schools that met the objective criteria of a composite Illinois Standard Achievement Test (ISAT) score," then ten were selected by the Board CEO for turnaround treatment. This process was determined not "on the basis of a written policy or on one particular set of factors," but a variety of factors including "academic performance, performance trends, leadership, whether the school was over or under utilized, proximity to and effect on other schools, school culture, facilities, safety, parent and community input, and input from CPS staff." The list of ten resulted from a series of meetings between the CEO and high-level Board members. Here, "[t]he ten schools were located exclusively on the south and west sides of Chicago where African Americans make up 40.9% of tenured teachers. No schools were selected for turnaround on the north side, where only 6.5% of tenured teachers are African American." District court erred in focusing singularly on the end of the process that involved the most subjective judgment. Because objective criteria largely drove the first two stages, those alone presented a single, common class issue (per Rule 23(a)(2)) that affected the entire class. Even the subjective factors applied at the end of the process conceivably presented common issues suited to class resolution. There were commonalities among even the subjective factors. Unlike Dukes, "where a court could have no way of knowing why each of the thousands of individual managers made distinct decisions regarding promotions and pay in millions of employment decisions .... Here we have one decision-making body, led by a CEO with ultimate authority to recommend schools to the Board, using one set of factors to analyze the need for turnaround in each school." Court erred in denying certification of a Rule 23(b)(2) class to enter declaratory and injunctive relief. The panel holds that the lower court judge misunderstood the relief sought. For the Rule 23(b)(2) class, the union did not seek any form of individualized relief, such as reinstatement or back pay for fired teachers, that might require individualized analysis. It sought a single injunction to end the practice and to monitor future rounds of school shutdowns. It also erred in not certifying a Rule 23(b)(3) class action to award individualized relief. The panel holds that the union established conclusively that the common issues for such relief predominated the individual issues. "One single question would trigger a liability finding for both the 23(b)(2) and 23(b)(3) class: did the policies and process behind the 2012 reconstitution unlawfully discriminate against African-American teachers and staff? And the answer to this question would eliminate the need for repeat adjudication of this question for determinations of damages or individual injunctive relief."

Sweatt v. Union Pacific Railroad Co., 796 F.3d 701, 127 FEP 1329 (7th Cir. 2015). Panel: KANNE, Ripple, TInder. Claims on Appeal: ADE and § 1981 transfer. FELA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court judge's individual procedures for summary judgment were not inconsistent with the local rule 56.1, nor did they deny non-movant a right to submit contested facts. Plaintiff failed to create genuine dispute about existence of relevant comparators for prima facie case. Record reveals no candidates for the Security Officer position-past or present-comparable to plaintiff in all material respects, and yet were treated more favorably than he was (i.e. hired). Plaintiff failed to answer question about arrest record honestly. That some files contain no notation that background check was performed does not establish that the checks were not performed.

Silk v. Moraine Valley Community College, 795 F.3d 698, 31 A.D. Cases 1548 (7th Cir. 2015). Panel: KANNE, Easterbrook, Hamilton. Claims on Appeal: 1. ADA termination. 2. ADEA termination and retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Panel notes in dicta that decision in Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010), requiring but-for proof of causation, may have been superseded by AADA amendment changing "because of" to "on the basis of." Genuine dispute about whether college regarded plaintiff as disabled. College had burden, on issue of whether regarded-as condition was a disability, of proving that the impairment was actually transitory and minor; standard is an objective one. "College has therefore not established that such a heart condition is transitory, because it has provided no evidence as to how long such a condition would last. Likewise, the College has presented no evidence to establish that such a condition could be considered 'minor.'" Plaintiff fails to present genuine dispute of material fact of first failure-to-assign classes because record shows college believed employee was absent during that period. There was genuine dispute regarding second failure to assign classes because of alleged statement by decision maker that "we didn't think [he was] physically capable of handling them." No genuine dispute regarding termination, where record established legitimate, non-discriminatory reason (poor performance), as to which plaintiff only disputes some details rather than college's honest belief. 2. Plaintiff waived ADEA termination claim by not briefing it on appeal. On his retaliation claim, plaintiff does not identify who was responsible for his termination, and thus no evidence that the decision maker was aware of his EEOC charge. Plaintiff also did not present a genuine issue of material fact on pretext, i.e., that school assessed him as a poor performer. Temporal proximity alone (a few weeks) does not create a genuine dispute in this case.

Swanson v. Village of Flossmoor794 F.3d 820, 127 FEP 1272, 31 A.D. Cases 1560 (7th Cir. 2015). Panel: FLAUM, Wood, Easterbrook. Claims on Appeal: 1. Title VII demotion (race, national origin). 2. ADA reasonable accommodation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Racially offensive incidents about which plaintiff complains all occurred years before he filed his EEOC charge on September 14, 2010, thus barred by limitations period. No reasonable inference to be drawn from past derogatory comments that it motivated reassignment; none of the comments were made by commanding officer who made decision. Only allegedly timely activity (told that he would be demoted to patrol division) never took place because he resigned before returning from leave. 2. Providing light duty to employee not reasonable accommodation where employee's doctor note did not recommend "light duty," but rather "part-time" work, which was offered to plaintiff. Moreover, even if "light duty" would have been employee's preferred accommodation, the ADA does not entitle a disabled employee to the accommodation of his choice, but simply a reasonable accommodation in view of employee's limitations and employer's needs. Accordingly, permitting an employee to use paid leave can constitute a reasonable accommodation.

Burks v. Union Pacific RR Co., 793 F.3d 694, 127 FEP 1071 (7th Cir. 2015). Panel: KANNE, Easterbrook, Hamilton. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No evidence that merely speaking to a supervisor about a promotion constitutes an "application" under company procedures, that employee was reasonably misled about whether examination was scheduled for him, or that anyone in management prevented employee from applying to take requisite examination to qualify for promotion. Also no evidence regarding second promotion that there was a vacancy. Plaintiffs also fail to establish causation, where there was nothing more than speculation that responsible managers were aware of the plaintiffs' protected activity.

Shell v. Smith, 789 F.3d 715, 31 A.D. Cases 1282 (7th Cir. 2015). Panel: SPRINGMANN, Kanne, Rovner. Claims on Appeal: ADA reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute of material fact whether it is an essential function of the job of Mechanic's Helper to drive buses to field locations, such that possession of a commercial drivers license is an appropriate job requirement. Plaintiff with hearing and vision problems, not eligible for CDL, performed job for 12 years without CDL. Applying elements of 29 C.F.R. § 1630.2(n)(3), fact-finder could conclude that job description alone does not determine essential-function issue. Description states only that job description states that a Mechanic's Helper "may occasionally drive and deliver buses to various field locations." No evidence that reassignment of this occasional duty to others "impacted the City's ability to provide dependable transit services to its citizens in an efficient or effective manner, or otherwise created a hardship or burden." Declaration that employee who replaced plaintiff is "able" to perform all tasks is not evidence that such tasks are performed are how often. While case law holds that temporary accommodation does not equal an admission that a task is not an "essential function," fact-finder could conclude that continuous performance of job for 12 years is distinguishable.

Miller v. St. Joseph Cnty., 788 F.3d 714, 127 FEP 448 (7th Cir. 2015). Panel: POSNER, Kanne, Darrah. Claims on Appeal: Race discrimination (statutes not specified). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: No evidence from which inference of a racial motive for job assignments can be drawn (history of bias, relative qualifications, etc.) Panel notes that Seventh Circuit does not require proof by "direct" or "indirect" method to avoid summary judgment, but only by sufficient evidence for a jury find that an employer took an adverse action on account of the employee's protected class.

Mintz v. Caterpillar Inc.788 F.3d 673, 127 FEP 317 (7th Cir. 2015). Panel: TINDER, Wood, Williams. Claims on Appeal: 1. Title VII § 1981 denial of bonus (race). 2. Title VII and § 1981 retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1 Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee fails to establish prima facie case: he was not meeting employer's reasonable expectations (high level of grief and past due change orders) and did not identify comparable non-black employee with comparable level of such reports. 2. Nine-month passage of time defeats temporal proximity, and there is no other circumstantial evidence that the complaint of race discrimination caused termination.

Stern v. St. Anthony's Health Center, 788 F.3d 276, 31 A.D. Cases 1149 (7th Cir. 2015). Panel: TINDER, Williams, Hamilton. Claims on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute of material fact that plaintiff's short-term memory disability rendered him unfit for duty as chief psychologist. Because position uniquely combined clinical, supervisory and administrative roles, he could not dispense with any of these without significantly changing the job. Prior year's evaluation not probative of whether he could perform job without accommodations, because cognitive disorder emerged later, while witnesses who vouched for plaintiff's ability to perform lacked personal knowledge about fitness for duty. Proposed accommodations were insufficient. Plaintiff's expert expressed only conditional support for note-taking and other cues ("possible," "likely"), and contingent on eliminating essential duties such as supervising other doctors. ADA did not require that employer switch employees (to allow plaintiff to scale back work). While employer failed to engage in interactive process, process would have been futile in this case. Expert witnesses not required to prove "essential functions" in most cases, though where it involves judging professional services (clinical psychology) it may be more important.

Castro v. DeVry Univ.789 F.3d 359, 127 FEP 1 (7th Cir. 2015). Panel: HAMILTON, Flaum, Manion. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed for one plaintiff [plaintiff]. Grounds: Seventh Circuit does not impose a strict limit on how close or remote in time a retaliatory action has to be to determine causation at the summary judgment stage. Nevertheless, one plaintiff's transfer and the intervening months of delay defeated any inference of discrimination from timing alone. While supervisor supposedly warned her staff not to go "running off to HR" with complaints in the future, the panel holds that the single comment was long remote from the firing decisions, by seven or more months. One plaintiff presented genuine dispute of material fact on causation. Reasons offered for his termination were contradicted by record in the case. Employer proffered (a) inconsistent performance and (b) "volatile behavior" as reasons for termination. Yet it eventually dropped the first reason and a jury could find the second reason incredible because witness testimony belied the employer's accounts of plaintiff's behavior. Court warns that under FRE803(6), "[t]he mere act of producing a document in response to a discovery request based on the content of the document does not amount to an admission of the document's authenticity." Leaving date blank on declaration did not invalidate it. A party declaration may not be stricken or disregarded as inconsistent with deposition testimony unless it contains "contradictions so clear that the only reasonable inference was that the affidavit was a sham designed to thwart the purposes of summary judgment." A plaintiff's own testimony can present a genuine dispute of material fact even about the employer's "honest belief" in its reasons for taking action against an employee.

Rutledge v. Illinois Dep't of Human Serv's, 785 F.3d 258, 31 A.D. Cases 933 (7th Cir. 2015). Panel: POSNER, Flaum, Rovner. Claims on Appeal: Rehabilitation Act termination. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff stated claim that reason given by agency for termination (neglect of resident) was pretext for disability. District court erred in holding that plaintiff who was found 100% disabled by Dep't of Veterans Affairs was unable to perform state job, where standard for veteran's disability was whether condition would render "average person" unfit for work and state agency hired employee notwithstanding knowledge of that condition. Also, determination was made without respect to reasonable accommodation. Plaintiff not necessarily time-barred under two-year borrowed period, where it was unclear from complaint and record whether plaintiff was discharged until shortly before he was sued (if ever).

Hutchens v. Chicago Bd. of Educ., 781 F.3d 366, 126 FEP 928 (7th Cir. 2015). Panel: POSNER, Kanne, Timber. Claims on Appeal: Title VII and § 1983 termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee presented a genuine dispute of material fact regarding pretext: (1) Plaintiff made a fairly persuasive case that - on the straight merits - she had the stronger background of the two candidates for termination (more post-graduate education and teaching certifications; longer tenure with Chicago Public schools, including five years at the esteemed Lincoln Park High school and six years teaching juvenile jail detainees; private sector experience in career coaching; and longer service in the unit). (2) Another manager allegedly used a superior as a cat's paw by misleading him into thinking that the plaintiff was not knowledgeable about the National Board Certification program, when she'd in fact received a National Board Certification - a year before the surviving white employee. (3) Employer's contentions that plaintiff tended to be withdrawn at work, did not volunteer, and had inferior interpersonal skills not documented by written performance evaluations, and witness testimony was rebutted by other evidence on these points. (4) Complaints that plaintiff bickered with co-workers were also belied by the co-workers' own testimony, and found no support in any documents; manager who supposedly fielded the complaints about bickering "did not herself observe bickering; she just listened to complaints about it, apparently making no effort to evaluate the accuracy of the complaints. Hers was thus not the best evidence-in fact was mainly hearsay." (5) Complaints about tardiness unsupported by documents. (6) Documentation such as did exist tended to be supportive of plaintiff. One of her supervisors testified critically about the plaintiff's lack of interpersonal and writing skills, yet wrote "a rave letter of recommendation" to support her job search, which she later testified was essentially true in all respects. (7) The plaintiff also collected "emails by her coworkers to her which indicated that she was cooperative and her work for the Professional Development Unit good." "Remarkably in light of our summary of the record, the district judge, in granting summary judgment said that the honesty of the defendants' beliefs about the relative qualities of [candidates for termination] could not reasonably be questioned. In fact, as our summary of the evidence reveals, there is considerable doubt about the honesty of ... the main witnesses for the defense...."

Simpson v. Beaver Dam Community Hospitals, Inc., 780 F.3d 784, 126 FEP 648 (7th Cir. 2015). Panel: TINDER, Bauer, Rovner. Claims on Appeal: Title VII and § 1981 discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: There was a genuine dispute of material fact about whether Thereat that plaintiff doctor's application for hospital privileges would be rejected, and rejection would be reported to National Practitioner Data Bank (writing was on the wall). Direct method does not apply. (1) Comments about other candidates being a "better fit" or "fitting in," or plaintiff being a "bad actor" or not on "best behavior," does not imply race or discrimination, where employer offered clear and specific concerns about plaintiff's application for privileges. (2) Pointing to similarly situated white doctors who did receive privileges not direct or circumstantial evidence of race discrimination. (3) No evidence that employer lacked legitimate concerns about eligibility, including concern that plaintiff submit to an oral examination; being a licensed doctor was not sufficient by itself for hospital privileges. Negative, anonymous reference was admissible for non-hearsay purpose of establishing effect on process. Existence of positive references did not nullify negative one. Medical malpractice claims against doctor, even if known to non-physician staff during intake of candidate, could reasonably be considered by committee. Committee could also consider academic probation, and angry and aggressive behavior. Cat's paw fails where there was no evidence that doctor who supposedly influenced committee decision to deny privileged harbored a discriminatory motive. Under indirect method, same evidence as above shows that there is no genuine dispute of material fact regarding pretext.

Love v. JP Cullen & Sons, Inc., 779 F.3d 697, 126 FEP 659 (7th Cir. 2015). Panel: FLAUM, Manion, Wood. Claims on Appeal: Title VII termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: General contractor was not indirect employer of subcontractor's employee, where there was no genuine dispute - applying the circuit's five-factor Knight test - that subcontractor directed employee's work (only safety instructions), contractor did not jeopardize his continued employment with subcontractor when it removed him from site, subcontractor paid salary and provided benefits, and plaintiff only worked on contractor's site for eight months.

Carter v. Chicago State Univ., 778 F.3d 651 (7th Cir. 2015). Panel: KANNE, Easterbrook, Hamilton. Claims on Appeal: § 1981 retaliation. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Statement by decision maker, upon reducing plaintiff's salary, that employee "will go and complain" too ambiguous to constitute circumstantial evidence of retaliatory animus. Temporal proximity of seven months insufficiently close to warrant inference of retaliation. Under indirect method, plaintiff does not make out prima facie case because there is no evidence that he was better qualified for position of acting chair; plaintiff failed to present evidence of what the relevant criteria for acting chair were, so simply having better credentials (PhD, etc.) does not establish superior qualifications.

Ledbetter v. Good Samaritan Ministries, 777 F.3d 955, 126 FEP 83 (7th Cir. 2015). Panel: POSNER, Sykes, Hamilton. Claims on Appeal: Title VII and § 1981 retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Termination that occurred one day after employee filed EEOC charge presents genuine dispute of material fact on causation. Assertion that decision was arrived at meeting prior to date that employer discovered about charge-filing presents credibility issue where there is no evidence that meeting occurred other than management witness's affidavits. Affidavit that merely asserts that witness affirms statements in summary-judgment memoranda lacks personal knowledge, FRE602. Credibility issue also presented by fact that crucial meeting date was couched as "at or around" a key date, interrogatory answer was indefinite on date, and employer waited nearly a whole week to communicate decision.

Sklyarsky v. Harvard Maintenance, 777 F.3d 892, 125 FEP 1677 (7th Cir. 2015). Panel: ROVNER, Bauer, Hamilton. Claims on Appeal: Title VII termination (national origin). Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6), and summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Suit against two companies as "employers" was not legally impossible (firms could be joint employers, affiliated or one company might be interfering with the relationship of the other), and district court erred in deciding on claim preclusion grounds because first-filed case had not yet reached final judgment. Despite such errors, judgment affirmed on alternative grounds. On merits, plaintiff conceded that once company played no role in adverse employment actions. Against actual employer, no genuine dispute of material fact that plaintiff was not meeting employer's legitimate employment expectations, i.e., repeated acts of insubordination - five reprimands (including two suspensions) in less than There years. Only evidence of causation that employee presented was suspicious timing between the reprimands, suspension, and his dismissal and the administrative complaints he filed.

EEOC v. Northern Star Hospitality, 777 F.3d 898, 125 FEP 1681 (7th Cir. 2015). Panel: KANNE, Flaum, Manion. Claims on Appeal: Title VII harassment (race) and retaliation. Disposition Below: Judgment after a jury trial ($15,000 compensatory damages, $43,300.50 in back pay and interest, $6,495 to offset the impending taxes, injunctive relief) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Successor liability is the default under Title VII. Under five-factor test, district court within its discretion to hold successor liable in this case where one individual was the sole owner/shareholder of both enterprises; predecessor could have provided relief but no longer can, successor is able to provide relief, and successor essentially carried out same business. Back-pay award may be equitably adjusted to offset tax effect of receiving lump-sum recovery (joining Third and Tenth Circuits).

Ani-Deng v. Jeffboat LLC, 777 F.3d 452, 125 FEP 1694 (7th Cir. 2015). Panel: POSNER, Wood, Easterbrook. Claims on Appeal: Title VII termination and failure to rehire (sex, race, national origin, retaliation). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Only evidence of discriminatory motive was a former employee's affidavit that management "would regularly manipulate the workforce," "would review the seniority list for the different classes of jobs in order to find ways in which to terminate the employment of workers," and had "searched for a way to terminate the employment of" the plaintiff in stages, first by demoting her from welder first class to welder third class "for too many First Aid Visits," which Miller calls "unusual and not a real reason to demote a worker at Jeffboat," the "real reason" being the plaintiff's complaints "about how she was treated as a woman, as an African and as a non-English speaker by those who had supervision over her work." Affidavit, though, lacked foundation of personal knowledge. For example, affidavit does not indicate how a human resources officer would know the "real reason" for demotion of a welder with injury problems.

Greengrass v. Int'l Monetary Systems, Ltd., 776 F.3d 481, 125 FEP 1350 (7th Cir. 2015). Panel: WILLIAMS, Bauer, Rovner. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine issue of material fact whether identifying employee who filed EEOC charge-by name-in 10-K filing with SEC, and referring to charge as meritless, was materially adverse action. Employee's charge was publicized and employee was informed by recruiter that such publicity made her "unemployable." Though over a year separated filing of charge and SEC filing, there was intervening activity by the EEOC to take charge seriously and investigate. Other evidence of pretext was decision to forward charge to alleged harasser, with message "Call me before you explode." Employer had been inconsistent about putting actual name of EEOC charging party in SEC filing.

Ripberger v. Corizon, Inc., 773 F.3d 871, 125 FEP 760 (7th Cir. 2014). Panel: ROVNER, Flaum, Kendall. Claims on Appeal: 1. ADE and Title VII hiring and termination (sex). 2. ADEA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No direct evidence of sex discrimination; 59% of those retrained in process were women. Older employees were retrained as well. Under indirect method for age or sex, plaintiff does not rebut legitimate reason for hiring male (positions were eliminated and agency preferred keeping incumbent employees in place). Events that occurred later (male employee did not get appropriate certifications and was later terminated) not probative of whether employer honestly preferred continuity of care over credentials. 2. Where supervisor said that there "might be a reason for" plaintiff not being retrained, comment was ambiguous about whether this referred to prior participation in co-worker's complaint of discrimination, and person who made comment was not involved in decision. Remark by another employee that plaintiff was not retrained in retaliation for protected activity irrelevant in absence of personal knowledge. Alleged discontinuities in hiring process (not being told where interview was to take place, short interview, etc.) not probative, where there was no evidence tying them to awareness of protected activity. Temporal proximity between appearing at Title VII hearing and learning about not being hired not shown to be other than coincidence. Plaintiff also loses under indirect method.

Parker v. Scheck Mechanical Corp., 772 F.3d 502, 125 FEP 641 (7th Cir. 2014). Panel: HAMILTON, Bauer, Rovner. Claims on Appeal: Title VII and § 1981 termination and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court did not abuse discretion in reopening case and vacating default where employer moved five days after learning about mistake in processing documents with insurer. Court erred in holding that employee only sued "Scheck Mechanical" where complaint includes several references to "Scheck Industrial," and in any event plaintiff would have been allowed to amend complaint to formally name that company as a defendant. Scheck Industrial might be jointly liable on theory that companies were single employer. Employer's own declaration in support of summary judgment equivocal where executive simultaneously represents that companies are separate, yet same executive claims to have personal knowledge of details of plaintiff's termination. Plaintiff may have resort to equitable tolling for reliance on district-court clerk's misinformation about filing.

Whitaker v. Milwaukee Co., 772 F.3d 802, 30 A.D. Cases 1830 (7th Cir. 2014). Panel: RIPPLE, Williams, St. Eve. Claims on Appeal: 1.ADA termination. 2.ADA reasonable accommodation. Disposition Below: 1. Summary judgment[defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. District court erred in not allowing employee to argue "joint employer" relationship between county and state agencies (state agency not a party); plaintiff did not preclude argument by not stating it in the complaint, because plaintiffs do not need to allege legal theories. Summary judgment affirmed on alternative basis that county cannot be made liable under ADA for decision made by state employees who supervised plaintiff. In matter of first impression in circuit, court holds that even under joint employer theory (where one of more companies exert control over different aspects of employment relationship), co-employer cannot be held liable for actions taken by other entity, following decisions of other circuits and EEOC enforcement guidance. 2. Claim waived by not being raised in EEOC charge, and in any event denial of accommodation attributable only to state agency.

Taylor-Novotny v. Health Alliance Medical Plans, Inc., 772 F.3d 478, 125 FEP 646 (7th Cir. 2014). Panel: RIPPLE, Williams, Hamilton. Claims on Appeal: 1. AD and Title VII (race) termination. 2. ADA reasonable accommodation. 3. ADA retaliation. FMLA 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. Employee not a qualified person with disabilities, owing to documented continued tardiness and failure to report accurately her work time. Employer considered it essential function of job, whether performed at office or from home, that employee be accessible at regular times to supervisors, staff, and customers. Under indirect method of proof. Because employee (with multiple sclerosis) was documented as having "very poor energy and stamina" and thus not capable of working a regular schedule no accommodation was possible. Alternatively, owing to persistent and uncorrected tardiness (plus inaccurate accounting of time and missed deadlines) and lack of communication with office, employee was also not meeting employer's legitimate expectations. Alleged comparable employee did not have the long history of tardiness and lack of accountability displayed by plaintiff. 2. Even if employee had established that she were a qualified individual, employer provided accommodations (sought information from her physician about her needs; participated in the interactive process; made several adjustments to physical surroundings. One other accommodation requested by employee-using her badge scans to report her arrival times-not related to any limitation concerning her condition that this accommodation would alleviate. Plaintiff never informed employer about alleged mental fatigue and memory issues, nor was employer constructively on notice. 3. No evidence of suspicious timing that after years of documented tardiness, employer supposedly first began to issue verbal and written warnings in March 2010, around the time that she officially requested AD accommodations. She was disciplined for tardiness as early as 2007. Also employer was informed no later than 2008 of disability when employee sought FMLA relief and employer engaged in interactive process to alleviate fatigue. Emails by management questioning employee's use of FML and her accountability not probative of retaliatory intent; such communications are legitimate administration. Record does no support claim that employee was not kept informed of performance issue that led to her termination.

Widmar v. Sun Chemical Co., 772 F.3d 457, 125 FEP 440 (7th Cir. 2014). Panel: ROVNER, Manion, Hamilton. Claims on Appeal: ADEA termination. State tort claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Affidavit by employee that speculates on the state of mind of the employer fails the standards of FRCP56(e) and FRE602. (Opinion once again states that district courts should not strike employee declarations for being "self-serving.") Employee's recitation, as "direct" evidence, of various instances where manager supposedly blamed him for production errors that were not his fault not probative of whether such accusations were motivated by age. Applying indirect method, employee fails to create a genuine dispute of material fact about whether he was meeting the employer's legitimate expectations. Employer could expect manager like plaintiff to be "proactive" in taking responsibility for production, keeping supervisors informed and work to solve problems. Alternatively, plaintiff did not create a genuine dispute of material fact about pretext: plaintiff's refrain that he was not responsible for failings at plant does not tend to establish that he was blamed for shortcomings because of age. Immaterial that younger employees were assigned his duties, where employee was terminated for performance reasons, rather than as part of a reduction in force. Moreover, record establishes that plaintiff's duties were reassigned to older and younger employees. Plaintiff waived age discrimination claim on denial of severance pay.

Stuart v. Local 727, Int'l Brotherhood of Teamsters, 771 F.3d 1014, 125 FEP 279 (7th Cir. 2014). Panel: POSNER, Rovner, Hamilton. Claims on Appeal: Title VII referrals (sex). Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in holding that member forfeited right to complain about lack of referrals by union by not filing a charge the very first time: "There is no rule that a plaintiff who has been repeatedly discriminated against by her employer cannot challenge any of the discriminatory acts under Title VII unless she files her EEOC charge within 300 days after the first such act." Alternatively, the timing of her action would be protected by the doctrine of equitable estoppel: "By telling the plaintiff to stop inquiring about openings for drivers, because she would be notified of such openings without having to call Local 727's business agent, the agent, on the approach taken by the district judge, placed her in an impossible position: she could infuriate him by continuing to call him to inquire about openings and emphasize her interest in them; she could sue the local prematurely for discrimination (because she didn't at that time know that the Division had an ironclad policy against referring women); or she could simply forgo any remedy under Title VII." The district court also erred in holding that a union's failure to refer cannot violate Title VII, because act makes it unlawful for a union to "fail or refuse to refer for employment any individual" because of the individual's sex. 42 U.S.C. § 2000e-2(c)(2). Court notes its agreement with a decades-long line of cases that applicants may bring Title VII actions for failure to refer or hire even without filing formal applications for every position, provided that they did "everything reasonably possible to make known ... their interest in applying for a job." Case reassigned to new district court judge on remand.

, 771 F.3d 413, 125 FEP 283 (7th Cir. 2014). Panel: POSNER, Flaum, Sykes. Claims on Appeal: § 1981 termination and retaliation. Due process claim (not discussed here). Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Federal suit barred by claim splitting/res judicata. Race harassment and retaliation claims in state court were not identical to § 1981 claim, but arising from the alleged racially motivated discrimination against him by white supervisor, claims were similar enough to constitute a single claim for purposes of res judicata. Voluntary dismissal with leave to refile did not expressly reserve claims that employee sought to file, and notation in docket "Voluntary Dismissal W[ith] Leave to Refile-Allowed" was insufficient to comply with "express reservation" exception.

Brown v. City of Chicago

Kauffman v. Peterson Health Care VII, LLC, 769 F.3d 958, 30 A.D. Cases 1428 (7th Cir. 2014). Panel: POSNER, Wood [MANION, concurring]. Claims on Appeal: ADA reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute of material fact about whether nursing-home hairdresser's pushing the residents' wheelchairs was an "essential function." Defendant contended that wheeling residents occupied 60-65% of the plaintiff's time, while the plaintiff calculated the time as 9%, or fewer than two hours a week on average. Issue is "whether her inability to wheel could reasonably be accommodated by assistance from other staff, as seems to have worked for the other hairdresser after the plaintiff left the nursing home until a replacement was hired." Assuming correctness of plaintiff's estimate, demand on other employees' time, divided over rest of staff, would be trivial. Alleged statement by employer that "we don't allow people with restrictions to work" was, if believed, further evidence of a disability-biased motive. Even employer's contention that supervisor meant "permanent" restrictions did not help the defense, because "it's not true that the fact that a restriction is permanent automatically excuses the employer from making any attempt to accommodate it." Such a policy ("100% healed") is discredited by case law and an EEOC enforcement guidance. Because record was devoid of any valid explanation why other employees could not be engaged to support the plaintiff in this one task, let alone an "interactive process" to locate another alternative, a trial on "reasonable accommodation" was required.

, 769 F.3d 944, 124 FEP 1459, 30 A.D. Cases 1293 (7th Cir. 2014). Panel: ROVNER, Flaum, Kanne. Claims on Appeal: Title VII and ADA termination. Disposition Below: Summary judgment [defendant] . Outcome on Appeal: Affirmed [defendant]. Grounds: Physician who was member of medical practice was "employer," not "employee," where she shared in profits, was shareholder and member of the board of directors (one of 16), was entitled to vote on all issues coming before the board, was not supervised in her work and reported to no other individual in organization, and was subject to the same board-and committee-approved policies as every other physician-shareholder in practice. Existence of "employee" contract and issuance of W-2 insufficient to counteract overwhelming proof of ownership. Award of fees to employer under ADA/Title VII not an abuse of discretion on finding that research would have disclosed that claim of "common law employee" status was frivolous, unreasonable, and without foundation, because undisputed facts demonstrated that physician, as shareholder and full board member, was an employer. Appellate fees denied where there was no evidence of bad faith.

Bluestein v. Central Wisconsin Anesthesiology, S.C.

Moultrie v. Penn Aluminum Intern., LLC, 766 F.3d 747, 124 FEP 719 (7th Cir. 2014). Panel: SYKES, Williams, Hamilton. Claims on Appeal: 1. Title VII demotion (race). 2. Title VII retaliation. LMRA 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 failed to present prima facie evidence that he met employer's legitimate performance expectations (counselled and disciplined on numerous occasions), and that similarly-situated individuals were treated relatively better. 2. No evidence of protected activity or causation, under direct or indirect method.

Muhammad v. Caterpillar, Inc., 767 F.3d 694, 124 FEP 524 (7th Cir. 2014). Panel: ROVNER, Easterbrook, Williams. Claims on Appeal: 1. Title VII harassment (race, 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. Employer reasonably responded with corrective action with co-workers, which all but ended the harassment. Graffiti was cleaned up immediately. Title VII did not require employer to pursue and punish guilty parties. 2. No evidence of causation between complaints of harassment and suspension. Also, no evidence of pretext: employee admitted leaving worksite against rules and can show no similarly situated individual treated more leniently for the same violation.

Malin v. Hospira, Inc., 762 F.3d 552, 123 FEP 1568 (7th Cir. 2014). Panel: HAMILTON, Kanne, Tinder. Claims on Appeal: Title VII retaliation. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff old her boss that she was going to complain about sex harassment by an employee in a different unit; director of other unit told her boss "to do everything in his power to stop Malin from going to Human Resources." (The demand was not hearsay; boss's report to plaintiff was covered by FRE803(1) present sense impression or FRE803(2) excited utterance.) Malin went ahead and lodged her complaint, anyway (and the complaint and investigation led to a warning to alleged harasser). Plaintiff alleged seven year campaign to prevent her from getting any increase in salary grade. On Title VII claim, district court erroneously applied "temporal proximity" rule due to years'-long gap between protected action (complaint about sex harassment) and adverse action (the 2006 reorganization). "[A] long time interval between protected activity and adverse employment action may weaken but does not conclusively bar an inference of retaliation. ... The evidence in this case permits an inference that [director] had a long memory and repeatedly retaliated against Malin between 2003 and 2006. Malin was denied promotions numerous times between 2003 and 2006. During that time, [director] was the final decision-maker on all promotions in the IT department, both at Abbott and after the spin-off at Hospira." Even though other denials of promotion were time-barred, still relevant as background.

Langenback v. Wal-Mart Stores, Inc., 761 F.3d 792, 123 FEP 1577 (7th Cir. 2014). Panel: KANNE, Bauer, Sykes. Claims on Appeal: Title VII promotion and compensation (sex). FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Claim of failure to promote beyond assistant manager fails at prima facie stage, because plaintiff was not meeting employer's reasonable expectations in that position and was fired. On claim that Wal-Mart waited ten years to promote her to assistant manager, plaintiff fails to identify comparable men. One putative comparable was skilled in butchery, qualifying him to manage meat department, while the other had higher educational credentials. Whether under direct or indirect method, plaintiff's claim fails.

Matthews v. Waukesha Cty., 759 F.3d 821, 123 FEP 1193 (7th Cir. 2014). Panel: ROVNER, Flaum, Easterbrook. Claims on Appeal: Title VII, § 1981, and § 1983 hiring (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute of material fact that decision maker was unaware of race of applicant. Affirmative-action form was not sent along with application. Because hiring never proceeded beyond first group of applicants, plaintiff's application was never considered. Alternatively, employer had legitimate, non-discriminatory reason not to hire (other candidates had superior experience). Newspaper stories properly excluded as summary judgment exhibits, where plaintiff made no record about their contents. No cats' paw liability where person who forwarded applications not shown to biased and no evidence such person caused any delay in deliver of plaintiff's application. Statistical evidence of alleged race bias too broad.

Orton-Bell v. State of Indiana, 759 F.3d 768, 123 FEP 1200 (7th Cir. 2014). Panel: MANION, Rovner, Hamilton. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII termination (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. Reserved [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. Sexual encounters that took place out of plaintiff's presence on her work desk not part of hostile work environment, in the absence of any evidence that the employer tolerated the intrusions into her office because of her gender. "Her supervisors' insensitive and inattentive responses were callous mismanagement; but absent evidence that this inaction was based on her sex, it did not violate Title VII." Nonetheless, summary judgment not appropriate on the remaining claims. Sex-suffused workplace presents sufficient evidence of a severe or pervasive environment: "Superintendent Mize, the official formerly in charge of the entire prison, harassed her, ogled her, and ostensibly forbade her from wearing jeans based on his opinion that 'her ass looked so good that it would cause a riot.' Walking through the pat-down area, she says she was searched more thoroughly while men watched and made sexual comments. And she relays that these kind of comments were not rare, but were part of a never-ending barrage." Also sufficient evidence that plaintiff was subjectively offended (despite her own occasional sexual banter) and that the prison could be held liable because she "made repeated complaints about the constant sexual comments, including complaints to the right individuals, but nothing changed." 2. Plaintiff ostensibly terminated for having an affair with senior colleague. Jury could find that the disparate harshness of plaintiff's punishment over male counterpart (Ditmer) was because of sex. She made out a prima facie case of being treated worse than an otherwise male employee: "Although in different branches of the chain of command, Orton-Bell and Ditmer were both fired by the same ultimate supervisor (Finnan) for the same conduct in violation of the same standards." And the efforts by the prison to distinguish the two circumstances, a jury might find, were implausible. A supervising officer with 25 years experience (versus plaintiff's four years) should, if anything, more aware of the rules and less excuse to violate them. "[H]is offense was also worse. Ditmer violated the DOC's standards of conduct while in the sensitive leadership position of Major in Charge of Custody (a para-military leadership role); Orton-Bell was a substance abuse counselor. If there is any dissimilarity, it is that the affair compromised Ditmer's ability to perform his job far more than it compromised Orton-Bell's ability to perform hers. And unlike Orton-Bell, this was not Ditmer's first work affair." Finally, state provided no reason for their disparate treatment. 3. Retaliation claim based on her complaints about the illicit use of her office for sex likewise fall away - complaining about the situation was not a protected activity under Title VII.

Reeves v. Jewel Food Stores, 759 F.3d 698, 30 A.D. Cases 323 (7th Cir. 2014). Panel: KANNE, Tinder, Hamilton. Claims on Appeal: ADA reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: While plaintiff did not waive claim in EEOC charge (charge complained of disability discrimination, which implicates accommodation, 42 U.S.C. §12112(b)(5)(A), summary judgment affirmed on alternative ground that parents of employee with Down's syndrome not press on issue of providing job-coach after theft incident; tentative request for accommodation does not imply a request for accommodation for later, more serious infractions.

Tank v. T-Mobile USA, Inc., 758 F.3d 800, 123 FEP 903 (7th Cir. 2014). Panel: WILLIAMS, Bauer, Easterbrook. Claims on Appeal: 1. § 1981 termination (race, national origin). 2. § 1981 retaliation. 3. § 1981 pay. 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 circumstantial evidence that reasons for termination (investigation of billing practices, complaints about management style, hiring of contractor that had been placed on no-hire list) were suspicious; motivated by complaints that did not originate from manager who plaintiff complained discriminated against him. Plaintiff offered no evidence of departures from company procedure for investigating complaints. Alleged discriminatory remarks about Indian heritage occurred more than a year before relevant events. Comment by manager, "why do you think there's so much hostility or resentment from that team?," not demonstrated to be biased, and person who made remark was not decision maker. 2. Above facts did not constitute "direct" proof of retaliatory motive, and even under indirect method there was no proof of pretext. Reasons for termination were not baseless: evidence that plaintiff exhibited favoritism to one employee, tolerated and facilitated conflict, was insubordinate and permitted hiring of contractor even after that contractor was fired. No evidence of shifting explanation. Other employee who committed alleged infractions did not commit multiple violations, and had not been previously investigated. No evidence that complaints of discrimination motivated termination. 3. Plaintiff presents no evidence of comparable non-Indians; compensation was affected by many factors (position, experience, education, qualifications, accomplishments, geography), and none of the other regional VPs were comparable to plaintiff.

Carlson v. CSX Transportation Inc., 758 F.3d 819, 123 FEP 893 (7th Cir. 2014). Panel: HAMILTON, Wood, Williams. Claims on Appeal: 1. Title VII promotion (sex). 2. Title VII retaliation. Disposition Below: 1. Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. 2. Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. While acknowledging the recent Supreme Court decisions boosting the use of Rule 12(b)(6) motions to dismiss as a screen for implausible claims (Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)), district court erred in demanding the pleading of evidence. Concerning the discrimination claims of repeated denials of substitute yardmaster jobs, Title VII complaint is governed directly by the Supreme Court's decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). Plaintiff not required to include allegations-such as the existence of a similarly situated comparator-that would establish a prima facie case of discrimination under the 'indirect' method of proof. Because "she alleged which positions she sought and was denied, and she attributed the denial to sex discrimination," she satisfied the standard for pleading a Title VII case. Also alleged that men were allowed to become substitute yardmasters without meeting the same conditions imposed on her, and that CSX offered shifting explanations for her failure to obtain transfer to a vacancy. 2. Despite of Univ. of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), "[t]he requirement of but-for causation in retaliation claims does not mean that the protected activity must have been the only cause of the adverse action. Rather, it means that the adverse action would not have happened without the activity." Long gap between the protected activity and adverse action does not render retaliation implausible as a matter of law: "no bright-line timing rule can be used to decide whether a retaliation claim is plausible or whether it should go to a jury. Other factors can always be relevant." Thus, the facts of this case might support causation notwithstanding a gap in time: "Carlson has alleged that the resolution of her 2007 lawsuit in 2009 sparked animosity right away and that all of her attempts to advance at CSX since then have been thwarted. She has described an ongoing campaign of retaliation, and her claims must be viewed through that lens." Concerning the allegation that she was constructively demoted by being hounded out of the training program, the district court erred by finding Carlson's allegations too conclusory: "The conditions Carlson described in her complaint may not ultimately qualify as intolerable, but we cannot say so definitively at the pleading stage, which (we stress again) is before any evidence is required." Panel bypasses whether RLA preemption issue is jurisdictional (which presents a split in the circuits), but holds in any event that Title VII claims were not preempted, because it did not require interpretation of collective bargaining agreement.

Hutt v. AbbVie Products LLC, 757 F.3d 687, 123 FEP 1208 (7th Cir. 2014). Panel: TINDER, Flaum, Easterbrook. Claims on Appeal: 1. ADEA termination. 2. ADEA retaliation. State wage 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. Asking for birthdate early in employment relationship and subsequent hostility to plaintiff, not direct proof of age animus. No evidence of comparable employees who were younger. Plaintiff waived indirect method by not briefing it, but summary judgment would have been appropriate on this basis anyway. 2. No causal connection between filing of EEOC charge and warning status, where she was already on warning for ten months before filing charge. No evidence of comparator.

Spaine v. Community Contacts, Inc., 756 F.3d 542, 123 FEP 664 (7th Cir. 2014). Panel: HAMILTON, Flaum, Williams. Claims on Appeal: § 1981 harassment and termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee not judicially estopped from bringing action by Chapter 7 bankruptcy filing, where plaintiff filed affidavit stating that she orally informed bankruptcy judge of claim on the record, told trustee after bankruptcy closed (who was then unwilling to reopen petition), and then herself opened the bankruptcy to list her claim as an estate asset. Trustee abandoned lawsuit, so plaintiff had standing to continue action. No evidence that plaintiff's intentionally concealed claim.

Nichols v. Michigan City Plant Planning Dept., 755 F.3d 594, 123 FEP 478 (7th Cir. 2014). Panel: WILLIAMS, Sykes, Hamilton. 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. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No genuine dispute of material fact about whether harassment of plaintiff (temporary hire as janitor) was severe or pervasive. Single utterance of the n-word and "boy" insufficient, and remaining four incidents (some of which were not directed at him, and did not involve Thereats) insufficient. One incident (leaving purse out where it could be seen by him) purely speculatively related to race. 2. Under direct method, no cat's paw liability based on one manager's input because there was no dispute that ultimate decision maker terminate plaintiff based on their belief that plaintiff was behaving strangely and district wanted permanent employee in plaintiff's role. Under indirect method, no evidence of similarly-situated employees.

Huang v. Continental Cas. Co., 754 F.3d 447, 123 FEP 507 (7th Cir. 2014). Panel: ROVNER, Flaum, Easterbrook. Claims on Appeal: Title VII and § 1981 termination (national origin, race) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute of material fact that plaintiff was fired for refusing to accept "pager duty" (being available on call during weekends), thus not meeting employer's legitimate expectations. No evidence that employees who were not Chinese were treated better. Moreover, no evidence of protected conduct because prior complaints to employer did not concern race or national origin discrimination.

Garofalo v. Village of Hazel Crest, 754 F.3d 428, 123 FEP 229 (7th Cir. 2014). Panel: TINDER, Easterbrook, Kanne. Claims on Appeal: 1. Title VII (race) and §§ 1981, 1983, and 1985 constructive discharge. 2. Title VII (race) and §§ 1981, 1983, and 1985 promotion. State law contract 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. Failure to be promoted not sufficient to support claim of constructive discharge. No further evidence of intolerable conditions after promotion was denied. 2. Employer did not waive mixed-motive defense by not pleading it in answer, where it was raised at other times during the litigation and fully briefed on summary judgment. Entry of settlement with one plaintiff, with consent decree stipulating that plaintiff was the most qualified candidate, not preclusive of other plaintiffs' claims. While there was evidence that one candidate (the one who settled) was held back because he is white, in favor of black candidate, that evidence does not - under the direct method - support the other plaintiffs' claims, where there is no evidence concerning their circumstances. While other plaintiffs made out prima facie case of discrimination under indirect method, they did not create genuine dispute of material fact over pretext (village supplied evidence that two candidates respectively lacked leadership skills and had a "volatile and unstable personality."

Whitfield v. Int'l Truck and Engine Corp., 755 F.3d 438, 123 FEP 241 (7th Cir. 2014). Panel: CUDAHY, Wood, Rovner. Claims on Appeal: Title VII and § 1981 hiring (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: With the 1998 application, the entry was first discovered by Navistar's electrical foreman, Jones: "While returning the file to Navistar with notice of Whitfield's clearance, Jones opened Whitfield's folder and saw that the word 'black' was written on the application's cover sheet. Surprised, Jones asked Navistar's Human Resources manager, Jeff Thatcher, why the word appeared on the file. Thatcher could not explain why the cover sheet was there and said it must have been a mistake." Five white electricians were hired ahead of Whitfield. Also, record of harassment: "symbols of racial hatred (including nooses), photos of racially hostile graffiti and racially offensive slogans scrawled around the Plant," plus evidence that management did not punish the white employees carrying out the harassment, and that blacks were excluded from the skilled trades. Despite the apparent pertinence of this evidence to the question of Navistar's racial motivation, the district court excluded such evidence at trial. Court holds that the application with the word "black" on it offered reason enough to think that race was a factor in the employee's termination. It rejected district court's attempt to hypothesize a valid explanation for the jotting (i.e., that it was "Affirmative action" purposes). District court also erred by ignoring "rather extensive evidence of the racially hostile environment within which this cover page was attached to Whitfield's personnel file." District court also erroneously weighed employer having hired - in the interim - one black electrician, even though she herself had been hired only after eleven white electricians were hired ahead of her, and was the very first black electrician hired in decades. Plaintiff presented further indirect evidence of discrimination, including his superior credentials over the white electricians who were hired, and that the reasons given for not hiring Whitfield were unsupported by the record. Furthermore, the district court erred in considering Navistar's reasons because it never identified who decided not to hire Whitfield. "Navistar was never able to identify the individual who made the final decision to not hire Whitfield. Thus, it is impossible for the court to conclude that the reason he was not hired was due to either the errors in his resume or lack of PLC experience." Plaintiff had more relevant experience than many of the white electricians hired during the relevant time period. District court also ignored evidence that Whitfield possessed such PLC experienced, while white electricians who were hired did not. District court's exclusion of the background evidence of racial harassment and systemic exclusion of blacks from the skilled trades was likely abuse of discretion.

Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 29 A.D. Cases 1518 (7th Cir. 2014). Panel: KANNE, Easterbrook, Rovner. Claims on Appeal: 1. ADA reasonable accommodation. 2. ADA discrimination. 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 denying plaintiff addition al brief to respond to declaration that defendant erroneously did not file with original motion for summary judgment, where local rules did not provide for such a brief and plaintiff was not prejudiced. Employer did accommodate legally blind employee by assigning him solely to serving food to customers, which did not require reading small print. Employer not required to provide employee's preferred accommodation. 2. No evidence that plaintiff was singled out for cell-phone violation at work; no evidence that non-disabled employees were not disciplined for the same violations. Reduction of hours and denial of other duties not shown to be connected to disability; comment by manager that "I will place you wherever I want" not evidence of animus against disability. Under indirect method, plaintiff failed to show he was meeting employer's reasonable expectations or (alternatively) to rebut pretext: missed inordinate amount of work, shoved trash can at manager). Also, no evidence of comparable employees.

Averhart v. Sheriff of Cook County, Ill., 752 F.3d 1104, 122 FEP 1685 (7th Cir. 2014). Panel: Per Curiam (Posner, Flaum, Easterbrook). Claims on Appeal: Title VII termination (race, sex) and retaliation. Disposition Below: Dismissed [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Merit Board of sheriff's office was not proper defendant because they were not plaintiff's employer, and claim against sheriff's office directly was filed nearly ten years after limitations period expired. Order for rule to show cause why sanctions should not be entered under FRAP38.

Campbell v. Forest Preserve Dist. of Cook County, Ill., 752 F.3d 665, 122 FEP 1417 (7th Cir. 2014). Panel: TINDER, Posner, Lawarence. Claims on Appeal: § 1981 termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: § 1981 does not provide private right of action against public employer.

Hnin v. TOA (USA), LLC, 751 F.3d 499, 122 FEP 989 (7th Cir. 2014). Panel: ST. EVE, Ripple, Williams. Claims on Appeal: 1. Title VII (national origin) 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. Plaintiff was not subject to disparate disciplinary termination (for alleged sexual harassment), where non-Chinese comparables were also fired (in one instance, just one day after investigation); any prior warnings given to those employees were for less serious offenses. Explanation for termination not pretextual, even if conduct did not specifically rise to actionable sex harassment, where employer could take protective measures against possible future harassment, there was evidence of other misconduct (interviews with co-workers about intimidation), and plaintiff's defiant behavior during investigation was a further reason for termination. Company not obliged to follow progressive discipline where offenses were serious ones. 2. Twelve months between protected activity and termination too remote to infer retaliation.

Baker v. Macon Resources, Inc., 750 F.3d 674, 122 FEP 789 (7th Cir. 2014). Panel: Per curiam (Wood, Sykes, Hamilton). Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine issue of material dispute about whether employee was fired for neglecting duty to inform state inspector general of physical abuse of patient, where 56-year-old plaintiff was fired while 39-year-old co-worker was only suspended. While plaintiff had supposedly witnessed event while younger co-worker merely heard about it, both were equally responsible to report what they knew under employer policy. Explanation inconsistent with disciplinary policy, inspector general report and other testimony. Also facts support inference of selective enforcement. No inference can be drawn in favor of employer because manager who made decision was himself in the protected age group.

Gosey v. Aurora Medical Center, 749 F.3d 603, 122 FEP 665 (7th Cir. 2014). Panel: Per curiam (Wood, Sykes, Hamilton). Claims on Appeal: 1. Title VII promotion (race). 2. Title VII harassment (race). 3. Title VII termination (retaliation, 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. Reversed [plaintiff]. Grounds: 1. Evidence that successful candidate was more qualified uncontested on summary judgment. 2. No evidence that being made to work off-the-clock or being disparaged by boss was motivated by race. 3. Where employer contended that sole reason for discharge was that plaintiff had accumulated four tardies, employer's own records established that she was only tardy two out of the four days claimed, and on every day employer claims she was tardy, she clocked in within the grace period. Trier of fact could find that reason for termination was not simply mistaken, but false.

Harper v. Fulton Cnty., Ill., 748 F.3d 761, 122 FEP 522 (7th Cir. 2014). Panel: MANION, Easterbrook, Sykes. Claims on Appeal: § 1983 compensation (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Declarations of female board member and female clerk that "male members" of board "held a bias against women in authority" did not prove by "direct method" that her salary was lower than male counterpart because of sex. Male board members were not identified and not shown to have been involved in compensation decision; overall, declarations were speculative and conclusory. Under indirect method, county proffers seven justifications for denying plaintiff pay raises (disciplinary incident, performance related reasons, believed not to work full-time, that she brought suit against the county, etc.). Plaintiff disputes some of these justifications but does not create a genuine dispute that the board did not believe them. Male who received pay raises not comparable because he had a history of commendable performance. Board was not required to present evidence that all ten board members were motivated by the same considerations in voting to approve compensation decisions.

Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 122 FEP 2432 (7th Cir. 2014). Panel: WOOD, Flaum, Tinder. Claims on Appeal: Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Claims concerning reassignment of duties time-barred and, in any event, supported by legitimate non-discriminatory reasons (time study). Court observes that no inference in favor of district can be drawn from fact that decision maker was same gender as plaintiff. No evidence that termination for job abandonment was discriminatory or in any way pretextual. Attorney ordered to show cause why he should not be sanctioned under FRAP38 for filing a frivolous appeal.

Chai v. State of Indiana, 744 F.3d 974, 121 FEP 1351 (7th Cir. 2014). Panel: KAPALA, Flaum, Hamilton. Claims on Appeal: 1. Title VII discrimination (sex, national origin). 2. Title VII harassment (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. No evidence that employee received less training than she was otherwise entitled to receive. Refusal to transfer employee to lower-security facility was not sufficiently adverse, where plaintiff presented to objective evidence that working conditions were better there. Poor performance evaluation, without more, not materially adverse. Moreover, plaintiff failed to identify male or non-foreign staff who were treated relatively better. 2. Employer took effective corrective measures after each complaint of harassment by co-workers and - in one case - an inmate. After such measures, those individuals did not harass plaintiff. 3. Failure to train/transfer and performance evaluation not tied in any way to complaints of discrimination. Reprimand, though perhaps arguably connected to harassment complaints (cited as one reason for the disciplinary action), nevertheless not an adverse action.

Andrews v. CBOCS West, Inc., 743 F.3d 230, 121 FEP 1187 (7th Cir. 2014). Panel: SYKES, Bauer, Flaum. Claims on Appeal: Title VII (race, sex), § 1981 and ADEA discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No materially adverse employment action, where employee was deemed to have resigned by failing to return to work, and only then administratively separated from the company.

Wilson v. Cook Cnty., 742 F.3d 775, 121 FEP 1077 (7th Cir. 2014). Panel: GRIESBACH, Manion, Sykes. Claims on Appeal: 1. § 1983 harassment (sex). 2. Title VII harassment (sex). Due Process and state law tort (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. There incidents of failure to take effective corrective action did not constitute establish policy or custom of ignoring harassment complaints. 2. While a plaintiff need not necessarily establish that she was currently an employee to have standing under Title VII to challenge failure to hire, here there was no evidence that county was hiring anyone, hence no unlawful employment practice.

Adams v. City of Indianapolis, 742 F.3d 720, 121 FEP 948 (7th Cir. 2014). Panel: SYKES, Posner, Williams. Claims on Appeal: 1. Title VII disparate impact promotion, 2007-09 (race). 2. Title VII and § 1983 disparate treatment promotion, 2007-09 (race). 3. Title disparate impact promotion, 2010-11 (race). Disposition Below: 1. Judgment on the pleadings, Rule 12(c) [defendant]. 2. Summary judgment [defendant]. 3. Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. District court did not apply excessive summary judgment standard; plaintiffs were not required to present evidence, but simply to allege facts that would support a plausible claim of disparate impact. Attaching EEOC charges did not convert motion to summary judgment. Charges are deemed incorporated into pleadings. Some claims properly dismissed on timing grounds; promotions are discrete actions on which time runs from date violation occurs. While the district court erroneously held that allegations of disparate treatment and failure to allege "facially neutral" policy negated a claim of impact, dismissal upheld on alternative ground that complaint failed to allege plausible case. Complaint fails to allege (1) facts that testing caused relevant and statistically significant disparity between black and white applicants for promotion; (2) which parts of the promotion policy plaintiffs are attacking; (3) racial composition of applicant pool or relevant workforce. District court did not abuse discretion in denying leave to amend complaint for a second time where FRCP16 schedule for filing amendments expired six months earlier and there was no good cause for lifting; alternatively, amendment would be futile because proposed amendments did not remedy deficiencies in disparate impact claim. 2. Plaintiff presented no evidence that city was aware of the disparate impact and continued to use test. 3. Suit barred by claim or issue preclusion, because allegations concern same promotion process

Zayas v. Rockford Memorial Hosp., 740 F.3d 1154, 121 FEP 766 (7th Cir. 2014). Panel: CUDAHY, Wood, Rovner. Claims on Appeal: 1. ADE and Title VII (national origin) termination. 2. Title VII (national origin) harassment. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Replacement by younger, white employee (and single derogatory comment by co-worker) not sufficient proof under "direct method" to establish biased motive. Failed to make out prima facie case because (1) recently disciplinary actions for insubordination showed that she was not currently meeting employer's legitimate expectations and (2) no evidence that others significantly younger or not Puerto Rican were treated differently for disrespectful written communications. 2. Comment that people in the U.S. needed to learn English, by co-worker two years before decision, even if combined with other hostile acts, fails to constitute severe or pervasive harassment.

Green v. American Federation of Teachers, 740 F.3d 1104, 121 FEP 619 (7th Cir. 2014). Panel: EASTERBROOK, Flaum, Griesbach. Claims on Appeal: Title VII union duty of fair representation, 42 U.S.C. § 2000e-2(c) and -3(a) (race). Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Prima facie claim of Title VII liability does not depend on alleging a union's contractual or statutory duty to the employee (such as a duty of fair representation under the LMRA) extrinsic to Title VII itself.

Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 29 A.D. Cases 17 (7th Cir. 2014). Panel: KANNE, Bauer, Hamilton. Claims on Appeal: ADA termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee with narcolepsy began to exhibit a pattern of decreased consciousness and alertness, for which she received several disciplinary warnings. Plaintiff's doctor informed the employer then that her lapses were possibly owing to suspension of medication that she used to avoid passing out. Plaintiff's physician filled out the company's paperwork, writing that plaintiff needed "periods of scheduled rest"; plaintiff was then fired without further consultation. Vice President of Human Resources testified in a deposition that the doctor's notation did not sway him: "I don't believe that the doctor is in a position to make that determination. It is his opinion." Genuine issue of material fact whether the termination had actually been made on April 15, 2010, when employer knew about disability. Under Seventh Circuit authority, a termination does not occur until the employer gives "unequivocal notice of termination" - a non-tentative decision, and clear notice to the employee. Here, plaintiff "was technically suspended pending a termination decision on April 15, not terminated outright. Indeed, [a human resources manager] informed Spurling that she could present new information that may be 'relevant to our deliberation,' which she did." There was also a genuine dispute of material fact about the company's failure to accommodate. "Rather than collaborate with Spurling or her doctor to find a reasonable accommodation, C&M chose to turn a blind eye and terminate her. It did not seek further clarification from either Spurling or her doctor and disregarded the medical evaluation altogether."

Walczak v. Chicago Bd. of Educ., 739 F.3d 1013, 121 FEP 506 (7th Cir. 2014). Panel: SYKES, Bauer, Hamilton. Claims on Appeal: ADEA termination. Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: State-court judicial review of hearing-officer's decision on termination claim preclusive of ADEA claim. Not inequitable to apply rule against claim-splitting where school board supposedly acquiesced to dual-track litigation by not moving to stay or objecting to state court proceeding. No indication that board consented. Plaintiff could have filed federal claim in state proceeding 60 days after filing charge.

Alexander v. Casino Queen, Inc., 739 F.3d 972, 121 FEP 511 (7th Cir. 2014). Panel: FLAUM, Hamilton, Kapala. Claims on Appeal: 1. Title VII and § 1981 discrimination (race). 2. Title VII and § 1981 harassment (race). 3. Title VII and § 1981 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. Reversed [plaintiff]. Grounds: 1. District court did not err in refusing to consider testimony from depositions taken in another case, where plaintiffs did not file them in docket. Discriminatory floor reassignments can constitute adverse employment actions because of the relative importance that tips had for cocktail waitresses, given their compensation structure and the alleged frequency of these reassignments. District court erred in holding that loss of tip-income was "speculative" because it is based solely on the plaintiffs' testimony: "Alexander and Rogers worked at Casino Queen for 18 and 15 years respectively, providing a basis for their statements (in the record) that they were reassigned up to twice per week, that these reassignments often took them to completely different and less lucrative areas of the casino floor, and that these reassignments hurt them financially." Plaintiffs identified sufficiently comparable white servers who received better assignments, who held the same position; where same manager supervised and assigned work to all cocktail waitresses, and was responsible for discipline for all cocktail waitresses; where CBA "govern[ed] the terms and conditions of employment of all Casino Queen Cocktail Waitresses"; and the white waitresses' relevant conduct was similar. Plaintiffs presented sufficient evidence to make a genuine issue of material fact out of the employer's explanation for the reassignments, i.e., "that floor reassignments were done in a race‐neutral fashion according to various preexisting floor plans." Management had never shown them the floor plans, and - in any case - "it is quite difficult to imagine that prearranged, race‐neutral plans would produce reassignments whereby African‐American cocktail waitresses 'almost always' received low‐tip areas while white waitresses consistently benefited." 2. Alleged pattern of unfair disciplinary write-ups and assignments, and close supervision, not established to be severe or pervasive, or because of race. 3. Loss of tip income was sufficiently adverse to support retaliation claim. Otherwise, claim mirrored discrimination claim.

Gaines v. K-Five Const. Corp., 742 F.3d 256, 121 FEP 285 (7th Cir. 2014). Panel: DARROW, Manion, Sykes. Claims on Appeal: Title VII termination (national origin) and retaliation. Federal/state retaliation and FLSA claims (not discussed here). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Failure to raise "direct method" in summary judgment papers waives that method of proof. There proffered non-minority employee not comparable to plaintiff, because (1) committing a few-minute misstatement of time not comparable to deliberately misattributing a statement about safety inspection of truck; (2) no evidence was provided about infractions by second candidate; (3) plaintiff also had background of allegedly insubordinate remarks, on top of misstatements.

EEOC v. Mach Min., LLC, 738 F.3d 171, 121 FEP 327 (7th Cir. 2013). Panel: HAMILTON, Wood, Kanne. Claims on Appeal: Title VII hiring (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Alleged failure to reasonably conciliate a claim with an employer does not pose an affirmative defense to a claim filed by the EEOC in court (noting split with other circuits).

Gogos v. AMS Mechanical Systems, Inc.,737 F.3d 1170, 28 A.D. Cases 1775 (7th Cir. 2013). Panel: Per Curiam (Cudahy, Rovner, Williams). Claims on Appeal: ADA termination. Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff sufficiently alleged disability under ADAAA by stating that blood-pressure spike and loss of vision were attributable to underlying hypertension, substantially limiting the major life activities of circulation and vision whenever spikes occurred. Episodic impairments covered by ADA and 29 C.F.R. § 1630.2(j)(1)(vii).

Reynolds v. Tangherlini, 737 F.3d 1093, 121 FEP 338 (7th Cir. 2013). Panel: SYKES, Flaum, Tinder. Claims on Appeal: 1. Title VII and ADEA retaliation. 2. ADEA promotion. Whistleblower Protection Act claim (not discussed here). Disposition Below: 1. Summary judgment [defendant] 2. Judgment after a bench trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff did not exhaust retaliation claims. While citing alleged "harassment" in his charge, plaintiff failed to follow up with facts despite repeated requests by EEO officer for more details. Nor was claim like or reasonably related to the discrimination claim. Under ADEA, employee can give 30-day notice of intent to sue as alternative, but plaintiff failed to do so in this case. 2. Case raises issue of whether standard of proof for liability under ADEA for federal sector (29 U.S.C. § 633a) is motivating factor, based on Ford v Mabus, 629 F.3d 198 (D.C. Cir. 2010), rather than determining factor. Unnecessary to decide standard because even under lower standard, plaintiff would lose (district court made findings under both standards). Younger employee who was selected was deemed to have stronger interpersonal skills. Failure to interview plaintiff not probative of discriminatory motive because other candidates were not interviewed. No abuse of discretion in denying leave to amend complaint to conform to proof at trial under FRCP15(b)(2), where agency did not consent to try retaliation claim. Introduction of defense evidence tangentially related to retaliation is not consent.

Ortony v. Northwestern University, 736 F.3d 1102 (7th Cir. 2013). Panel: EASTERBROOK, Bauer, Posner. Claims on Appeal: ADEA termination. Disposition Below: Judgment on the pleadings, FRCP12(c) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Professor's agreement in 2007 to teach four years, then resign in 2012, started running limitations period in 2007 (when professor knew firmly that he would be required to leave at a date certain in the future), not when he was later reminded of contract in 2011

Brumfield v. City of Chicago, 735 F.3d 619, 28 A.D. Cases 1328 (7th Cir. 2013). Panel: SYKES, Flaum, Tinder. Claims on Appeal: AD and Rehabilitation Act termination. Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: 1. Noting split in circuits, court holds that Title II of ADA does not apply to employment discrimination cases; such claims must be brought under Title I. In this case, employee waived Title I claim by failing to challenge the district court's ground for dismissing the complaint (i.e., claim preclusion). Because employee did not allege that she was terminated "by reason of disability," but merely because of behavior which she contends was caused by a disability, Rehabilitation Act claim cannot stand. Moreover, employer owed her no accommodation because - despite her mental disabilities - employee did not identify accommodation that was tailored to assisting employee to perform any essential function of her job.

Lavalais v. Village of Melrose Park, 734 F.3d 629, 120 FEP 661 (7th Cir. 2013). Panel: TINDER, Posner, Hamilton. Claims on Appeal: 1. Title VII and §1983 denial of transfer (race). 2. Title VII harassment (race). Disposition Below: 1. Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. 2. Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Failure to grant request to be transferred off midnight shift addressed a materially adverse employment action, because employee (a sergeant) was not able to exercise any of his officer's authority on the overnight shift. Claim was adequately alleged in complaint and preserved in the EEOC charge. Claims against individual superiors may also continue. 2. Claim not preserved in EEOC charge.

Johnson v. General Board of Pension & Health Benefits of the United Methodist Church, 733 F.3d 722, 120 FEP 673 (7th Cir. 2013). Panel: HAMILTON, Posner, Tinder. Claims on Appeal: 1. Title VII and § 1981 promotion (race). 2. Title VII and § 1981 termination (race). 3. Title VII and § 1981 harassment (race). 4. Title VII and § 1981 retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Plaintiff could not bring claim on promotions when she did not apply. For those promotions where she did apply, plaintiff did not rebut proffered reason (that she lacked leadership and interpersonal skills). 2. Employer proffered legitimate, non-discriminatory reason that employee secretly recorder co-worker conversations in violation of employer policies and Illinois law. Although employer itself apparently accidently recorded some of its phone calls, it was uncontested that the recordings were purely accidental. 3. Showing employee a single video with fleeting male nudity in it was not severe or pervasive. 4. Assertion that defense witnesses perjured themselves is not a basis for reopening verdict, where witness credibility was evaluated by jury. Employer did not err in excluding evidence of how phone recording system worked (FRE403), hearsay statements by client and customers about her performance. District court erred in instructing jury without proving partes with opportunity to read and object to charge under FRCP51(b), but error was harmless, because charge was substantially accurate in its definitions of retaliation and "materially adverse action." FRCP60(b) motion on judicial bias properly denied.

Mullin v. Temco Machinery, Inc., 732 F.3d 772, 120 FEP 494 (7th Cir. 2013). Panel: FLAUM, Wood, Bauer. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: While a plaintiff may ordinarily avoid summary judgment by either the direct or indirect method of proof, regardless of the route chosen, what matters is the bottom-line demonstration "that a rational jury could conclude that the employer took the adverse action against the plaintiff because he is a member of a protected class." Panel holds that there was "ample circumstantial evidence" of age bias for genuine dispute of material fact. (1) "[A] highly experienced and relatively successful salesman was fired at precisely the time the company hired two 'very inexperienced' men who had never been in sales." (2) "Temco went to great lengths to emphasize how 'old' its employees are. For instance, Baylog testified that Mullin was 'at the age where he should have been in his prime ... . [I]t's the best time in a salesperson's life [--] between say 45 and 65 is their most productive years. Those are the people you search out and try to hire.'" (3) Deposition admission by the CEO that the company hired a new replacement salesman in his 20s because "he was a young individual" and, though inexperienced, "our thought process on him was he was a young guy, give him a shot [to] drive around the state showing fire trucks and learn the business." (4) "[E]ach of Temco's alleged reasons for firing Mullin is either genuinely contested, seemingly inaccurate, or both. Certain of Temco's alleged reasons raise potential credibility issues, which a jury should resolve." For instance, while claiming financial reasons for firing Mullin, the company at the same time hired two other inexperienced sales associates as replacements, whose combined salaries well exceeded what Mullin received in salary at the time he was terminated. Moreover, Mullin's alleged acts of absenteeism or disobedience were repeatedly contested by other witnesses. Supposedly disappointed customers actually submitted affidavits in support of Mullin.

Williams v. Milwaukee Health Servs., 732 F.3d 770, 28 A.D. Cases 1069 (7th Cir. 2013). Panel: POSNER, Rovner, Tinder. Claims on Appeal: Rehabilitation Act termination. Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in holding that employee had to file or exhaust administrative charge with EEOC. That employee had other suits on file at state court concerning same issue was not basis for dismissal; it is a concern for the state courts.

Perez v. Thortons, Inc., 731 F.3d 699, 120 FEP 1 (7th Cir. 2013). Panel: HAMILTON, Stadtmueller [RIPPLE, dissenting]. Claims on Appeal:Title VII termination (sex, national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee fired for charging $127 of candy bars to herself for $12 creates a genuine dispute of material fact about discriminatory motive, where male non-Hispanic (also the General Manager) was treated more lightly for inventory control violation where he put his own money in till to cover shortfall (thus arguably covering up a much larger act of theft). General manager's violation - while it may not have caused a direct loss to the company - was "deceptive, done secretly and without the consent of a supervisor," the opposite of the plaintiff's alleged violation. Record showed that same executives were involved in both decisions. Even though plaintiff supposedly "admitted" that there was a different decision maker in local rule 56.1 summary judgment statement, where employer itself presented contradictory statements in its 56.1 statement about who the decision maker was. Inference of discrimination may be drawn from fact that two executives were involved in both decisions; designating one each as nominally responsible for the respective decisions does not free them from involvement in both decisions. Employee contended that manager gave her permission to charge herself discount as was not informed of policy that discounts above $25 required an auditor as witness. Same general manager told plaintiff one year earlier that he did not want to work with a woman, and that women "always have something to do with their kids or they have a period." Fact that same executive hired and then terminated employee ("same actor") is only inference to be weighed, not determinative. That executive, despite being informed of General Manager's sexist remarks, still assigned her to that the same General Manager. Sexist comments may not be "stray remarks" given string of events suggesting that General Manager was singling out plaintiff. Same evidence would establish potential liability under direct and indirect methods, though boundary between these methods of proof is "eroding."

Bates v. City of Chicago, 726 F.3d 951 (7th Cir. 2013). Panel: MANION, Wood, Barker. Claims on Appeal: 1. Title VII, §§ 1981 and 1983 demotion (race). 2. §§ 1981 and 1983 individual liability (race). Disposition Below: 1. Summary judgment [defendant]. 2. Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff failed to establish prima facie case, because there was no evidence that there were similarly-situated non-black firefighters who were not demoted. Plaintiff was wrong to limit universe to seven District Chiefs, when same decision maker made 30 appointments, and there was no racial pattern to the decisions. Alternaitvely, plaintiff failed to present genuine dispute over proffered reason (differences in management style). Small inconsistencies in explanations were not material enough to support pretext. decision maker was himself black with a background in advocating for black firefighters. 2. "Active involvement" in decisions not enough for liability. Any error in dismissing claims at complaint stage not material because on summary judgment, court found insufficient evidence of racial animus.

Hester v. Indiana State Dep't, 726 F.3d 942, 119 FEP 874 (7th Cir. 2013). Panel: WOOD, Posner, Rovner. Claims on Appeal: Title VII and ADEA promotion and termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to present genuine dispute of material fact over reasons why he was not promoted and eventually terminated. In dicta, court addresses split in circuits about whether removal to federal court waives any immunity it would have enjoyed in state court

Johnson v. Koppers, Inc., 726 F.3d 910, 119 FEP 673 (7th Cir. 2013). Panel: BAUER, Sykes, Hamilton. Claims on Appeal: Title VII and § 1981 termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Even if employee's immediate supervisor supplied false report of verbal abuse, it did not cause employee's termination under cat's-paw approach where termination was for physical altercation between employee and supervisor reported independently by a third party. Employee cannot prevail by indirect method, where employee was terminated for insubordination due to fight. Other participant in fight was not terminated but did not have prior record of a verbal altercation, such as employee here had (so not comparable). Employer's decision further supported by independent investigation showing that employee had been "out of control" and subject to prior warning for the same kind of behavior.

Morgan v. SVT, LLC, 724 F.3d 990, 119 FEP 884 (7th Cir. 2013). Panel: WOOD, Posner, Williams. Claims on Appeal: Title VII (race, sex) and § 1981 termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee has no specific obligation to channel proof into direct/indirect method of proof, or to prove a "mosaic" of evidence, to avoid summary judgment. It is only necessary for the employee to present sufficient evidence for a fact-finder to conclude that the employer acted on account of a protected classification. "Direct" method shall be deemed the default method of proof in employment discrimination cases. Plaintiff in this case did not set forth sufficient evidence to present a genuine dispute over whether he was fired on account of race specifically because of reporting a white manager for theft, where employee reported no other white employee who was treated relatively better with the same disciplinary record.

Hill v. Tangherlini, 724 F.3d 965, 119 FEP 677 (7th Cir. ). Panel: WILLIAMS, Posner, Easterbrook. Claims on Appeal: Title VII termination (race) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Panel announces that prior case law holding that employee could not submit his or her own "self-serving" in opposition to summary judgment is overruled. Summary judgment affirmed on ground that (1) prima facie case was not met (employee was not meeting legitimate expectations because of There instances where he lost temper); (2) plaintiff identified no employees with comparable behavior who were treated better; (3) despite that employee challenged agency's account of his outburst, there was no evidence that employer was lying about the reasons it fired him. Retaliation claim also fails on grounds of causation (eight months separated EEOC charge from termination).

Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 119 FEP 680 (7th Cir. 2013). Panel: HAMILTON, Sykes, Stadtmueller. Claims on Appeal: Title VII reasonable accommodation (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Nigerian employee's request for five weeks' leave time to attend his father's funeral overseas presents genuine dispute of material fact whether employee sought a religious accommodation. One disputed issue was whether the employee clearly indicated a religious purpose for the voyage, where he said that "if he failed to lead the burial rites, he and his family members would suffer at least spiritual death." Court holds that "multiple references to spiritual activities and the potential consequences in the afterlife provided sufficient notice to Heartland that Adeyeye was making a religious request." Jury could also find that for employee to observe his religion appropriately, it was necessary for him to participate in the burial ceremonies. Employee seeking to establish religious brief will not be held to rigorous examination of sincerity or consistency of belief. Plaintiff also presented genuine issues of material fact about (1) whether the failure to accommodate caused plaintiff's termination (he was fired for being absent during his trip to Nigeria); and (2) undue burden, where employer had high turnover and a log of part-time employees who could have filled in during employee's absence. It is not a reasonable accommodation to require someone to quit and reapply for a job.

Benes v. A.B. Data, Ltd., 724 F.3d 752, 119 FEP 509 (7th Cir. 2013). Panel: EASTERBROOK, Posner, Williams. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute of material fact that engaging in outburst during EEOC sponsored mediation - breaking into employer's room and yelling "you can take your proposal and shove it up your ass and fire me and I'll see you in court" - was not protected activity under Title VII. Moreover, termination for such a reason would not dissuade a reasonable worker for making of supporting a charge of discrimination.

Lambert v. Peri Formworks Systems, Inc., 723 F.3d 863, 119 FEP 510 (7th Cir. 2013). Panel: WOOD, Posner, Hamilton. Claims on Appeal: 1. Title VII and § 1981 harassment (sex, race). 2. Title VII and § 1981 retaliation and discrimination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Genuine dispute of material fact in co-worker harassment case whether employee could reasonably expect yard leads to report harassment complaints that he made on site. Yard lead testified that he heard harassing statements or that employee complained about them (references to black employee animals, solicitations to "suck my dick"). Company had no anti-harassment policy at time, so it was logical that employee would make complaints to next-level supervisor. References to black workers as "donkeys" and "gorillas," and plaintiff particularly as "nigger," sufficiently severe or pervasive for jury to find they created a hostile work environment. 2. No rational jury could find that employee's termination was motivated by race or retaliation, where he failed alcohol test and company otherwise enforced "zero tolerance" for safety reasons. No similarly situated employees identified.

Hobgood v. Illinois Gaming Bd., 722 F.3d 1014, 119 FEP 177 (7th Cir. 2013). Panel: HAMILTON, Bauer, Williams. Claims on Appeal: Title VII retaliation. First Amendment (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute of material fact whether plaintiff was terminated for assisting plaintiff in Title VII in retaliation action. Causation could be proved under "direct method," using a "convincing mosaic" of circumstantial evidence. (Court notes that "When considering whether a plaintiff has met his burden through a presentation of circumstantial evidence that amounts to a 'convincing mosaic,' parties and judges too often lose sight of the purpose of these rhetorical tools. The ultimate question the parties and the court always must answer is whether it is more likely than not that the plaintiff was subjected to the adverse employment action because of his protected status or activity. To answer that question, the individual 'bits and pieces' presented by the plaintiff must be put into context and considered as a whole.") Here, circumstantial evidence included (1) general counsel statement, before his investigation had even begun, that Gaming Board "wants discharge to be considered as the first option"; (2) Board initiated investigations only after learning that plaintiff had been assisting outside person in Title VII litigation and after already cleared of wrongdoing by the State Police and the State's Attorney's office; (3) general counsel says "Let's get past the point of whether you did it or not. We know you did it."; (4) defendants did not sincerely believe that the investigation against plaintiff and his eventual termination were warranted by his unprotected activity (allegedly taking unconsented recordings of private conversation), where general counsel ordered broad review of any alleged misdeeds and studied pleadings in Title VII lawsuit.

Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 119 FEP 177 (7th Cir. 2013). Panel: HAMILTON, Bauer, Sykes. Claims on Appeal: Title VII harassment (sex) and retaliation. Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Under relaxed standards for pro se filers, complaint stated a claim for sex harassment (that she was harassed by supervisor, and that manager would not intervene with harasser because they were both male and he wanted to help him like a brother). Plaintiff also pled a retaliation claim (she complained about harassment and had her hours cut). Plaintiff's two amended complaints related back to first complaint, so no limitations issues blocked the claims.

Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 118 FEP 1097 (7th Cir. 2013). Panel: WILLIAMS, Easterbrook, Rovner. Claims on Appeal: Title VII/PDA termination (pregnancy). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds. Employee presented genuine dispute of material facts about whether pregnancy motivated termination, where (1) employee was asked when There months pregnant whether she was "quitting" after she gave birth; (2) supervisor piled more duties on employee, scrutinized her work more heavily, and set schedules that interfered with child care; (3) co-worker testified that same supervisor said that she had enough trouble with two children and "if I were you I would have an abortion"; (4) employee was terminated two weeks after supervisor learned of pregnancy for processing admission of patient who was already dead, when she was ordered to carry this admission out by the manager; (5) employer offered four different, shifting explanations for termination, and the proffered reason contradicts the Disciplinary Action Form (so the jury could find so ludicrous that employer could not plausibly believe it); and (6) employer never fully explained what it is that the employee supposedly did wrong.

Rapold v. Baxter Int'l, Inc., 708 F.3d 867, 117 FEP 129 (7th Cir. 2013). Panel: ROVNER, Easterbrook, Tinder. Claim on Appeal: Title VII hiring (national origin). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion by failing to give a mixed-motive charge under 42 U.S.C. § 2000e-2(m). The choice of mixed-vs-single-motive jury charge is left the judge's determination as to which instruction most closely fits the record, a decision that is reviewable on appeal only for abuse of discretion. The record contained evidence that the decision maker expressed hostility towards his European origins (Rapold's behavior may be attributable to a "European attitude about working that included a desire not to 'stress themselves for a job'"; "'European cultural differences will need to be addressed'"; referred to 'Germanic' attitude"). District court noted both pre-trial and at the jury instruction conference that a mixed-motive instruction was inappropriate because by denying any wrongdoing on his part, plaintiff presented case in which the jury could either believe him or the defense, not some combination of the two. Moreover, any error in giving the instruction was harmless. The jury was entitled to conclude that the remarks about the plaintiff's European origins were "little more than an attempt to give Dr. Rapold the benefit of the doubt in the face of increasingly unprofessional behavior," in short, to cut him a break because he is European. Finally, plaintiff not entitled to judgment as a matter of law on the trial record, finding that the jury's verdict was rational.

May v. Chrysler Group, 716 F.3d 963 (7th Cir. 2013). Panel: TINDER, Bauer, Kanne. Claims on Appeal: § 1981 and Title VII harassment (race, national origin, religion). Disposition Below: Judgment after a jury trial ($709,000 compensatory damages, remitted to $300,000; $3.5 million punitive damages vacated) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds. Plaintiff endured graffiti on notes (including death Thereats) for There years. Jury had sufficient evidence to conclude that Chrysler did not "promptly and adequately" respond to the harassment; when employee first complained, employer only met with sixty employees in two short meetings, after which the graffiti incidents and death Thereats accelerated. In first year, plant had only interviewed employee, held a meeting and hired an investigator; it did not interview potential perpetrators suggested by employee or install cameras (employer challenged feasibility of cameras, but had in fact used a camerat one site to capture employee destroying property; one such camera could have been trained on employee's tool chest, where Threatening notes had been left). Fact that union president had pushed back that he would grieve any termination associated with surveillance did not excuse failure to make effort to step harassment. Evidence that employee himself may have been perpetrator was for jury to weigh. District judge did not err in vacating punitive damages, where record did not support finding of "reckless indifference": employer had policy, and used several graduated steps to abate harassment that eventually resulted in fewer harassing incidents and eventual cessation.

Basden v. Professional Transportation Inc, 714 F.3d 1034 (7th Cir. 2013). Panel: COLEMAN, Ripple, Rovner. Claims on Appeal: ADA termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds. Former employee with MS was unable to create genuine issue of material fact about whether she was a qualified individual with a disability where, even with medication, employee had not shown that she would be able to return to a full-time schedule.

Dookeran v. County of Cook, Illinois, 719 F.3d 570, 118 FEP 205 (7th Cir. 2013). Panel: SYKES, Manion [HAMILTON, dissenting]. Claims on Appeal: Title VII non-renewal (race, national origin) and retaliation. Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds. While district court had jurisdiction notwithstanding Rooker-Feldman (employee did not seek collateral review of state court's decisions), dismissal affirmed on claim preclusion ground, where employee could have presented his Title VII claims in state court and thus had full and fair opportunity to litigate. Although Illinois Supreme Court had only recently confirmed that federal civil-rights claims could be brought in circuit court, prior contrary authority in intermediate appellate courts was against unambiguous statutory language and Seventh Circuit authority, so employee should have attempted to raise all such claims in state court.

Smiley v. Columbia College Chicago, 714 F.3d 998, 118 FEP 219 (7th Cir. 2013). Panel: WILLIAMS, Rovner, Young. Claims on Appeal: Title VII and § 1981 non-renewal. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds. Employee terminated after investigation that she subjected student to hostile work environment did not present genuine dispute of material fact that colleagues were treated less harshly when they were accused of harassment. Other incidents did not involve comparable conduct (different supervisor; complaint was unfounded; incident took place outside of workplace), or else led to same disciplinary decision. Allegation that employer did not do fuller investigation does not establish pretext, where it was not shown that further interviews would have made it more likely that employee would be vindicated. No abuse of discretion striking affidavit about hearsay testimony that was not in admissible form.

Martino v. Western & Southern Financial Group, 715 F.3d 195, 118 FEP 1 (7th Cir. 2013). Panel: WILLIAMS, Posner, Sykes. Claims on Appeal: Title VII termination (religion). State tort claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds. No genuine dispute of material fact that reason proffered for termination (failure to document citizenship for I-9 form) was pretextual. Other employee to whom employee compared himself (1) not shown to be in or outside protected group; (2) had a longer track record of authorized work and persuaded employer that he would be able to locate documentation. For second employee, no evidence that company was unaware of any violation of moonlighting rule. No suspicious timing to termination (days after being requested to comply with documentation request), where employer had actually been requesting the same information for a month.

Majors v. General Electric Co., 714 F.3d 527, 118 FEP 47 (7th Cir. 2013). Panel: MILLER, Easterbrook, Hamilton. Claim on Appeal: 1. ADA transfer. 2. Title VII retaliation. 3. Title VII constructive discharge. 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 was not a qualified individual. Lifting objects weighing more than twenty pounds is an essential function of the purchased material auditor position. The only accommodation employee proposed was to have a material handler lift the heavy objects for her, but having another employee perform a position's essential functions is not a reasonable accommodation. Because she was not a qualified individual, there was no need for interactive process and no need to address whether reason for not giving position was pretextual. 2. Because second EEOC charge was filed 311 days after her first EEOC charge was filed, employee's retaliation claim was limited to employer conduct during the 300-day period before the second EEOC charge was filed, i.e., from June 3, 2009 forward. Alleged denial of opportunity to work "lack of work" Fridays not supported by record, where other co-workers were treated equally or worse. Other quality control inspectors under different supervision not comparable. Employer also offered legitimate, non-discriminatory explanation ("lack of work" hours were being reduced for budgetary reasons). No evidence of pretext in employer's explanation that the distribution of overtime hours is equalized under the CBamong employees within a job classification, and the quality control inspectors with the most overtime hours had a different job classification than plaintiff. 3. Early retirement offer was not coercive.

Cloe v. City of Indianapolis, 712 F.3d 1171, 27 A.D. Cases 1324 (7th Cir. 2013). Panel: KANNE, Tinder [HAMILTON, concurring]. Claim on Appeal: 1. ADA discrimination. 2. ADA reasonable accommodation. 3. ADA 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. Reversed [plaintiff]. Grounds: 1. Employer contended that the employee quit and was not fired. Failure to offer any legitimate, non-discriminatory explanation for termination forfeited defense of this claim on summary judgment and warranted a trial. 2. No genuine dispute of material fact, where reasonable accommodations were met in two cases (for a nearby parking space and a local computer printer), while her request for a proofreader was not shown to clearly be related to a disability. 3. Employer failed to present evidence about who actually made the decision to terminate employee, yet there was evidence that her direct supervisor resented her health-related absences. A week before a disciplinary suspension, "[the employee] had a meeting with [manager] Winfield and Janna Mays in which [she] told Winfield and Mays that [she] had to leave early because [she] had a doctor's appointment. Winfield and Mays expressed anger at [Cloe] for having to leave early. Within a week after this incident, when Winfield's supervisor Mays returned from her honeymoon, [Cloe] was written up for the [April 9, 2009 demolition]." Supervisors likewise made remarks suggesting that they believed employee was exaggerating her condition. One administrator allegedly commented that "you are fine. I have a friend who has MS and does everything." Manager said that employee's medical condition "was not serious and did not affect [her] ability to work." also, disciplinary actions tended to occur mere weeks or even days after employee's health related absences from the office.

Hall v. City of Chicago, 713 F.3d 325, 117 FEP 1423 (7th Cir. 2013). Panel: FLAUM, Wiood, Hamilton. Claim on Appeal: Title VII harassment. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute of material fact whether supervisor's conduct was designed to ostracize employee from the rest of her division. Employee claimed that she was assigned to review useless videotapes, her colleagues were forbidden from speaking to her, she was prohibited from Division meetings, her efforts to take on more work were suppressed, and supervisor subjected her to occasional verbal outbursts as well as one minor physical altercation. Regarding subjective harassment, employee showed that she, on several occasions, reported supervisor's conduct to her supervisors, the EEOC, her union, and the police, all of which suggest she interpreted the acts as harassing. As to whether harassment was based on sex, employee presented evidence that she was only woman plumber in division, and evidence of hostility because of gender: supervisor's alleged comment, in reference to plaintiff, that "he ought to slap that woman sitting out there" and "I could slap that woman and get a promotion." Hostile work environment did not culminate in a tangible employment action ("the reassignment to menial 'make work' reviewing of videotapes, i.e. reassignment with significantly different responsibilities"), because she was assigned this work at the outset of her work in the Division. Yet there is genuine dispute of material fact over whether employer can make out Faragher/Ellerth defense. City took years to respond to employee's complaints, and city did not present evidence of codified harassment policy.

Collins v. American Red Cross, No. 11-3345 (7th Cir. Mar. 8, 2013). Panel: BAUER, Rovner, Williams. Claim on Appeal: 1. Title VII retaliation. 2. Title VII termination (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No inference of retaliation from termination report that stated, among other reasons, that employee "told others that [the Red Cross] is out to get minorities." Report did not mention nearly year-old EEOC complaint, yet does support a series of complaints and allegations about employee stirring up tensions between her co-workers. While report did not always adequately support reasons, there is no way in which report can be understood to support termination on grounds of opposing race discrimination. 2. Employer proffered legitimate, nondiscriminatory reasons for terminating employee, i.e., that she (1) told others that the Red Cross was out to get minorities; (2) said she could not work with homosexuals; (3) instructed an employee to falsify records; (4) coerced a subordinate into teaching a class for free; and (5) gave out blank certifications for Red Cross courses. That employee denied all of these allegations did not mean that employer did not rely on these reasons. Use of allegation about "minorities" in report did not provide direct method of proving a racial motive.

Vaughn v. Vilsack, , No. 11-3673 (7th Cir. Mar. 8, 2013). Panel: RIPPLE, Flaum, Williams. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee claimed change in work hours, his exclusion from participating in the GS-11 rotation and the denial of overtime were related to the September 2007 settlement of his Title VII suit. Employee was not meeting reasonable expectations, though, because there was significant evidence that he was engaged in sex harassment of female colleague. Even if employee made out prima facie case, there is insufficient evidence of pretext. Employee knew about allegations of harassment, did not deny them, and reports by co-workers corroborated charges. Overtime properly denied to employee where it would have placed him in contact with employee who complained about his harassing behavior. Transfer to the new department does not raise any inference of pretext because the status quo remained unchanged after the reassignment.

Alam v. Miller Brewing Co., 709 F.3d 662, 117 FEP 653 (7th Cir. 2013). Panel: BAUER, Rovner, Williams. Claim on Appeal: Title VII and §1981 retaliation. Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6)  [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer Miller Brewer properly dismissed because it was not named in EEOC charge; employee fails to plausibly allege exception to rule that employer be in charge under Eggleston. Plaintiff alleged no facts that he was employee of affiliate company, only that he was seeking independent contractor relationship with it. Section 1981 waived in district court.

Teruggi v.The CIT Group/Capital Finance Inc., 709 F.3d 654, 117 FEP 773 (7th Cir. 2013). Panel: WILLIAMS, Bauer, Rovner. Claim on Appeal: ADA, ADE and Ill. state law termination. State tort claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to present sufficient evidence to create claim by direct method, e.g., "frustration over CIT's decisions to interview him after offering the senior vice president position to [another candidate], to monitor his email account for nearly a year without informing him, and to discharge him for what he believes is an inconsequential violation of company policy." None established comparison to younger or non-disabled persons. Comments about plaintiff being "old" or asking about retirement plans were made eighteen months before termination.

EEOC v. AutoZone, Inc., 707 F.3d 824, 27 A.D. Cases 801 (7th Cir. 2013). Panel: MANION, Sykes, Hamilton. Claim on Appeal: ADA reasonable accommodation. Disposition Below: Judgment after a jury trial ($100,000 in compensatory damages, $200,000 in punitive damages, and $115,000 in back pay) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: On remand from EEOC v. AutoZone, Inc., 630 F.3d 635 (7th Cir. 2010). Employee with back injury, aggravated by repetitive motion, continuously assigned employee floor-mopping activities. Because of disabling pain, he was not permitted to return to work, ultimately terminated. First jury's verdict in the discrimination case, finding that the employee was not a "qualified individual" at the time of his involuntary medical leave and termination, did not preclude the second jury from finding liability for ADA reasonable accommodation, because the two juries were considering different periods. District court did not abuse its discretion by admitting the EEOC's expert witness, a treating physician whose opinions were formed for diagnosis rather than litigation, despite that the EEOC did not submit his written report under Fed. R. Civ. P. 26(a)(2)(B). Medical evidence of the employee's pain supported the $100,000 compensatory damage award. Punitive damage award met the ADA statutory and due-process standards. Indeed, while the company had standards for granting medical accommodations. Court holds that company can be held liable for manager's conduct as an agent, because he enjoyed "the authority and discretion to make decisions about employees' accommodations." Under due-process test, jury could have found the employer's behavior sufficiently reprehensible (indifference to pain, repeated and unreasoned failure to reassign the work, the employee's economic vulnerability), the ratio of actual to punitive damages was 1:1, and Congress already determined that an award in this range were acceptable under the 1991 Title VII amendments providing for punitive damages. Affirms most of the injunctive relief. Because relief was authorized on a finding of liability (42 U.S.C. § 2000e-5(g)(1); 42 U.S.C. § 12117(a)), courts put the burden on the employer to prove that the discrimination is unlikely to continue. The magistrate judge ordered that employer "(1) comply with the reasonable-accommodations requirement of the ADA for employees in the Central District of Illinois; (2) to notify the EEOC of any employee who requests an accommodation during the next There years in the Central District of Illinois; and (3) to maintain complete records of its responses to such accommodation requests." Remand of one aspect of part (1) of the order, requiring that some temporal limit be placed on it. Such "follow-the-law" injunctions are not favored generally, and require evidence "suggest[ing] that the proven illegal conduct may be resumed." In this case, the standard was met by proof of "AutoZone's inaction over eight years" that "convince[d] the judge that compliance with the law will not be forthcoming without an obey-the-law injunction." Yet without a temporal limit, the company would remain indefinitely subject to contempt remedies for violations of the ADA, without the benefit of administrative and conciliation protections.

James v. Hyatt Regency Chicago, 707 F.3d 775 (7th Cir. 2013). Panel: BAUER, Rovner, Randa. Claim on Appeal: ADA reasonable accommodation. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee's visual impairment prevented from performing essential functions of job and he was not medically cleared to return to work for ten months. Reassigning lifting and bending over to other employees would not be reasonable. Court did not abuse discretion in denying motion to compel and sanctioning employee's counsel for repetitive motions on essentially the same discovery.

Begolli v. Home Depot USA, 701 F.3d 1158, 116 FEP 1057 (7th Cir. 2012). Panel: POSNER, Flaum, Kanne. Claim on Appeal: Title VII hiring (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: The 180/300 day period prescribed by Title VII is not an "exhaustion" requirement; no administrative proceeding need be conducted before the employee can file suit. "The filing deadline is just a defense in a Title VII suit, and there is no reason to distinguish it from other defenses and therefore exclude it from the jury trial." Accordingly, the date when the Title VII claim accrued in this case (i.e., when the first employee knew of the violation) is simply another issue for the jury, rather than a dispute for the bench to resolve.

Brown v. Advocate South Suburban Hosp., 700 F.3d 1101, 116 FEP 1059 (7th Cir. 2012). Panel: KANNE, Posner, Sykes. Claim on Appeal: 1. Title VII discrimination (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. Employer failed to document assertion that non-African American employees received transfers and more desirable shifts. Under direct method, no inference can be drawn from allegation that employer was lazy about responding to race discrimination complaints (not supported by record) or pushed back that plaintiff was a "troublemaker," "cry baby," or "spoiled child" (disagreeing with someone does not imply discrimination). 2. Events were either not material adverse (mocking of employees, performance evaluation that was never shared with employee and had no tangible effect) or not shown to be cause by protected activity (managers who denied transfers were not shown to be aware of discrimination complaints).

EEOC v. Thrivent Financial for Lutherans, 700 F.3d 1044, 27 A.D. Cases 129(7th Cir. 2012). Panel: TINDER, Cudahy, Rovner. Claim on Appeal: ADA medical records, 42 U.S.C. § 12112(d). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer must "already kn[o]w something [i]s wrong with the employee before initiating the interaction in order for that interaction to constitute a 42 U.S.C. § 12112(d)(4)(B) inquiry." Moreover, the duty under the ADA to maintain confidentiality over medical information as a result of "medical examinations and inquiries" is limited to health-related questions, not merely performance-related questions. Because the employee apparently never informed the employer of his migraines (the record indicates that the employer had not suffered such a debilitating headache in six years), the employee's volunteering of the medical information - in response to an inquiry about his absence from work - did not fall into the category of protected "medical examinations and inquiries."

Porter v. City of Chicago, 700 F.3d 944, 116 FEP 705 (7th Cir. 2012). Panel: BAUER, Posner, Wood. Claim on Appeal: .1 Title VII reasonable accommodation (religion). 2. Title VII discrimination (religion). 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. Offering employee a change to a different watch to accommodate church attendance was reasonable, where it did not affect tangible aspects of job and employee merely subjectively disapproved of plan and failed to pursue it. 2. Employee fails to show why change in group and issuance of counseling session were materially adverse. Occasional jibes (being called "church girl") not pervasive enough to be considered harassment. 3. Even assuming that transfer to Friday/Saturday days-off group was materially adverse, transfer occurred nearly a year after last accommodation.

Fleishman v. Continental Cas. Co., 698 F.3d 598, 116 FEP 400 (7th Cir. 2012). Panel: FLAUM, Sykes, Tinder. Claim on Appeal: 1. ADEA termination. 2. ADA termination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No inference of age discrimination from comment (made 10 months before termination, by non-decision maker) that the company wanted to "get him"; an offer of early retirement and medical benefits at the outset of an extended illness; and putative pattern of older employees leaving group. Effort to prove claim though McDonnell Douglas waived. 2. Aneurism not shown to substantially limit plaintiff in any major life activity or that anyone at employer regarded his health as substantially limiting.

Anderson v. Donahoe, 699 F.3d 989 (7th Cir. 2012). Panel: FLAUM, Sykes, Tinder. Claim on Appeal: 1. Rehabilitation Act retaliation. 2. Rehabilitation Act discrimination and reasonable accommodation. 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. Employee failed to establish genuine issue of material fact on whether EEO filings caused delay in making accommodation to asthmamd Threatened discipline, where 13 month period elapsed between protected activity and decision, and there is no evidence that other similarly situated who did not engaged in protected activity were treated better. 2. Employee waived these claims by failing to plead them in second amended complaint.

Povey v. City of Jeffersonville, Ind., 697 F.3d 61926 A.D. Cases 1633 (7th Cir. 2012). Panel: COLEMAN, Ripple, Rovner. Claim on Appeal: 1. ADA reasonable accommodation and 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 not regarded as substantially limited in major life activity of work, where supervisor's statement that employees inability to use right hand concerned specific duties of animal shelter, rather than a broad class of jobs. 2. Temporal proximity of third complaint of harassment with termination (There weeks) insufficient by itself to raise inference of retaliation.

Naficy v. Ill. Dep't of Human Serv., 697 F.3d 504, 116 FEP 97 (7th Cir. 2012). Panel: ROVNER, Manion, Hamilton. Claim on Appeal: 1. Title VII reassignment (race, 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. Preference ofr Spanish-speaking candidate for vacant Spanish-speaking position is not direct evidence of discrimination against Iranian employee; no evidence that Spanish fluency was not a bona fide requirement for position. Claim that she was not permitted to exercise bump rights while another employee was allowed to bump junior employee contradicted by record that other employee occupied vacant position and did not bump. Allegedly disparaging remarks made supervisor not "direct" evidence where supervisor had no input into reassignment. Using McDonnell Douglas burden-shifting test, employee fails to make out prima facie case because there is no similarly-situated employee who was treated relatively better during layoffs. Spanish-speaking coworker qualified for vacancy, while other co-worker opted-out of bumping process. 2. Charges filed in 2005 and 2009 lack temporal proximity to 2010 reassignment. Treatment of co-workers during layoff (above) motivated by legitimate, non-discriminatory reasons. Fact that supervisor knew about two charges did not establish causation where she was no involved in reassignment decisions.

McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 115 FEP 1668 (7th Cir. 2012). Panel: SYKES, Tinder, DeGuilio. Claim on Appeal: Title VII and § 1981 compensation (race). Disposition Below: Dismissal for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Retention-bonus program for brokers when employer was acquired by bank - based on production credits - was an exempt, production-based compensation system under Title VII, 42 U.S.C. § 2000e-2(h), even if it continued alleged disparities in earnings in broker earnings based on race. Use of production credits as metric for productivity was valid. Provision not limited to "piecework" production systems. Statute does not require production-based system to be "bona fide," and even if it did it would not change result because system indisputably measured production. To establish intent to discriminate, plaintiff has burden of establishing that retention bonus system itself was adopted with the purpose of discriminating on the basis of race. Complaint was conclusory about intent. Lilly Ledbetter Fair Pay Act does not change result because it concerns only timing and accrual, and does not change the substance of a Title VII compensation claim. Challenge to underlying acts of discrimination that cause alleged racial disparities in earnings properly dismissed because it was already the subject of other litigation.

EEOC v. United Airlines, Inc., 693 F.3d 760, 26 A.D. Cases 1431 (7th Cir. 2012). Panel: CUDAHY, Kanne, Sykes. Claims on Appeal: ADA termination. Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Court overrules EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), and Mays v. Principi, 301 F.3d 866 (7th Cir. 2002), that held employers had no duty to place employees who were losing their current positions due to disability into vacant positions for which they are otherwise qualified. The court holds that this interpretation of the ADA was superseded by the Supreme Court decision, U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), and that employers may have a duty to transfer.

Hoppe v. Lewis Univ., 692 F.3d 833, 26 A.D. Cases 1286 (7th Cir.  2012). Panel: WILLIAMS, Easterbrook, Tinder. Claims on Appeal:  1. ADA reasonable accommodation. 2. ADA, § 1981 and 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 erred in holding that employee could not perform essential job functions, where no evidence or argument was presented on that issue, and employee contested assertion that she could not perform functions of communicating with students and colleagues, plus employer admitted that she could perform essential functions in the answer it filed in district court. But summary judgment affirmed on alternative ground that employee failed to respond to requests for information about requested accommodations for adjustment disorder and employer offered to move employee to other office (which she declined to do). 2. Being moved from teaching duties in one course was not demonstrated to be material adverse action, but employer waived this point. Summary judgment affirmed on alternative point that there was no proof of causation (i.e., over two-year gap between protected activity of filing charges and adverse actions, and no evidence that decision-maker was in fact aware of protected activity). Also no evidence of pretext in response to legitimate, non-discriminatory explanation (that employee lacked credentials to teach topic).

Feldman v. Olin Corp., 692 F.3d 748, 26 A.D. Cases 1305 (7th Cir. 2012). Panel: WOOD, Easterbrook, Flaum. Claims on Appeal:  1.ADA termination. 2. ADA retaliation. Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Employee presented contested issue about whether he was disabled in the major life activity of sleeping. Record contained sufficient evidence for a jury to so conclude, "including medical evidence from his treating physicians and the results of a sleep study. He did not rely solely on his own say-so, although his deposition testimony and the records he kept from 2005 to 2007 documenting his sleeping difficulties bolstered the medical evidence. . . . even though some evidence indicates that Feldman is able to do things like go to movies and attend church, other evidence shows that Feldman has significantly reduced his social activities because of his pain and sleeping difficulties." Also contested issue concerning employee's ability to work overtime is an "essential function" of Feldman's employment: overtime is not listed as a required job feature in the written job descriptions, while it is for other jobs, and discovery indicates that overtime is rarely worked by bag house operators. Though employer argued that plaintiff was not permitted to bump junior employees currently holding the straight-time positions, record suggests that employer treated him as being on 'curtailment,' a status that gave him right under the applicable collective bargaining agreement to bump junior employees. Even when employment practices generally require bidding before being awarded a position, employers may be required to bypass procedural requirements like bidding in order to meet their obligations under the ADA of providing reasonable accommodations. 2. Eight-month gap between charge-filing date and adverse action dispels adverse inference; no evidence that decision-makers were aware of charge. Appeal to sanction award against plaintiff counsel waived, but panel remands denial of sanctions against defense firm for filing an FRCP 11 motion without safe-harbor under FRCP 11(c)(2), thus multiplying litigation.

ON CERT TO U.S. SUPREME COURT - Levin v. Madigan, 692 F.3d 607, 115 FEP 1281 (7th Cir. 2012). Panel: KANNE, Bauer, Posner. Claims on Appeal:  § 1983 termination. Disposition Below:  Qualified immunity denied [plaintiff]. Outcome on Appeal:  Affirmed [plaintiff]. Grounds: State employees who are age 40 and over enjoy only limited rights under the federal ADE against age discrimination, Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000), holds that states are immune under the Eleventh Amendment from money damages under the ADEA, the only cognizable relief being equitable (such as reinstatement). Moreover, policy-making staff are exempt from ADEA protections (29 U.S.C. §630(f)), and plaintiff here was a Senior Assistant Attorney General held excluded from relief under the ADEA. Section 1983 relief can coexist with federal statutes covering the same substantive claim (e.g., Title IX). While several circuits have held availability of relief under ADEA bars § 1983 claims, Seventh Circuit splits from these decisions. Although age is not a suspect classification, states may not discriminate on that basis if such discrimination is not "rationally related to a legitimate state interest."

Bolden v. Walsh Contr. Co., 688 F.3d 893, 115 FEP 1153 (7th Cir. 2012). Panel:  EASTERBROOK, Posner, Flaum. Claims on Appeal:  § 1981 and Title VII (race) harassment and overtime. Disposition Below:  Class certification granted [plaintiff]. Outcome on Appeal:  Reversed [defendant]. Grounds: Rule 23(b)(2) class vacated. Employees who had worked at employer most recently in 2002 could represent a group only from the same time period. Class should not have been defined by reference to violation ("because of their race"), which renders the class indeterminate until judgment is entered. Court could not bracket together all 262 worksites into one case: superintendents and foremen varied by site, and there were no complaints against most of them; conditions varied from site to site. Statistical evidence by employees improperly aggregated all of the sites, did not control for variables other than race. No region-wide policy in dispute, and after Dukes the mere grant of discretion to superintendents does not constitute such a policy. Harassment suit not manageable as it would require a trial for each site, broken down further by time, because crews were repeatedly switched out, and single-site cases themselves fail numerosity.

Magnus v. St. Mark United Methodist Church, 688 F.3d 331, 26 A.D. Cases 1029 (7th Cir. 2012). Panel:  TINDER, Bauer, Sykes. Claims on Appeal:  AD association termination, 42 U.S.C. § 12112(b)(4). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Because there is no requirement to reasonably accommodate employees under this section, church was not obliged to accommodate parent's need to periodically be out of the workplace to care for disabled child, such as excusing employee from fair share of weekend duties.... Apparent timing of termination (one day after arriving late to work from taking care of daughter) not probative of disability discrimination where decision to fire employee had been made before then. Persistent difficulties with attendance and work performance provided legitimate, non-discriminatory reason for discharge. Recent raise did not signal approval of employee's performance, because all full-time employees received same raise.

Hanson v. Caterpillar Inc., 688 F.3d 816, 26 A.D. Cases 1034 (7th Cir. 2012). Panel:  KANNE, Rovner, Williams. Claims on Appeal:  ADA termination. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Employee not a "regarded as" disabled, as employer made several attempts to place her in position within medical restrictions, company believed she could perform a wide variety of jobs within her restrictions, and single comment made by manager after she had already been fired was not probative of earlier period.

Passananti v. Cook County, 689 F.3d 655, 115 FEP 956 (7th Cir. 2012). Panel:  HAMILTON, Manion, Sykes. Claims on Appeal:  1. Title VII harassment (sex). 2. § 1983 termination. 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. Affirmed [defendant]. Grounds: Plaintiff worked as deputy director of program to help transition non-violent, pre-trial jail detainees into employment and drug treatment. Harassment from manager took the form of persistent, vituperative language ("bitch," "stupid bitch"); manager also treated other women in program this way. Manager accused plaintiff of violating rules about how to treat program participants who cheated on drug tests, and of having had sexual contact with a participant. Plaintiff prevailed at trial on her claims ($4.1 million: $4 million in compensatory damages against county; $70,000 in compensatory and $30,000 in punitive damages against manager). In granting judgment as a matter of law, district court erred in its application of a prior circuit decision, Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164 (7th Cir. 1996), which was understood to hold (in the context of summary judgment) that the use of the word "bitch" was simply too mild, common and ambiguous in our current culture to constitute harassment. Here, though, "there was no contextual evidence here that undermined the reasonable interpretation, that Sullivan's repeated and hostile use of 'bitch' to address and demean Passananti was based on her sex. No addition al proof was necessary to allow a jury to find that Sullivan used the word 'bitch' as a gender-specific term and that its impact was to degrade women in general and Passananti in particular." Jury could have found comments were based on gender, especially when combined with the false imputation of plaintiff having sexual contact with a program participant. Employer did not establish the Faragher/Ellerth affirmative defense by making a timely complaint that was never investigated, and - to boot - the jury found that the county lacked an effective policy to remedy harassment. Because case was tried only under Title VII, plaintiff could collect the $70,000 against the county only; punitive damage verdict could not stand against a government agency. 2. Record supported only the conclusion that her job was eliminated for purely budgetary reasons. Harasser was gone, and employee does not claim or offer evidence that anyone else in the department harbored any gender-based animus toward her.

Blasdel v. Northwestern Univ., 687 F.3d 813, 115 FEP 837 (7th Cir. 2012). Panel:  POSNER, Bauer, Hamilton. Claims on Appeal:  Title VII denial of tenure. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Woman associate professor of neurology not granted tenure. Comments made during the period plaintiff sought to extend tenure period about "demands associated with raising two young boys," "demands of a family" affecting productivity, and being "a woman scientist who reproduced" were made in context of supporting candidacy (also stay remarks about plaintiff having an "emotional need to be heard," "combative," "scary!"). Court applies same-actor doctrine that person who made "reproduced" comment supported plaintiff being hired originally. Both reviewers who recommended against tenure furnished legitimate, non-discriminatory reason (lack of productivity). No evidence of pattern of votes against female candidates. Error in appeal process does not imply sex discrimination. Grant of tenure to male candidates during same period does not imply discrimination where they were not in competition for the same position and there was ample support for the male candidates' promotion (at least equal, or superior, to plaintiff in productivity).

Milligan v. Board of Trustees of Southern Illinois Univ., 686 F.3d 378, 115 FEP 758 (7th Cir. 2012). Panel:  FEINERMAN, Rovner [RIPPLE, dissenting]. Claims on Appeal:  1. Title VII harassment (sex). 2. ADA, § 1981 and Title VII retaliation. Title IX 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. Allegations that professor (who was not supervisor) engaged in inappropriate touching. Plaintiff accountable in part for delay in investigation by declining to attend meeting on the same day; employee was immediately moved and harasser warned to stay away (later supported with official letter of reprimand training). Although employer allegedly discourage plaintiff from pursuing claim (harasser was allegedly suffering from dementia), record indisputably established that complaint process continued. Although university did not completely prevent all contact between plaintiff and harasser, physical separation of employees was reasonably calculated to prevent further incidents. Employee forfeited argument that employer should have taken greater case in light of prior incidents of harassment; in any event, prior incident was more than ten years prior, about telling inappropriate jokes, and reprimand letter was given at that time. Other incidents informally reported to employer after 2005 never investigated because victims declined to pursue the complaints. Failure to fully follow employer's harassment policy not probative of whether actual corrective measures meet the standards of Title VII. 2. Termination from stockroom job two months after making complaint of harassment not sufficient by itself to raise an inference of retaliation by temporal proximity. Further adverse events thereafter are immaterial where there was no evidence that decision-makers knew about harassment complaints.

Ekstrand v. school Dist. Of Somerset, 683 F.3d 826, 26 AD Cases 641 (7th Cir. 2012). Panel:  BAUER, Easterbrook, Shadid. Claims on Appeal:  ADA reasonable accommodation. Disposition Below:  Judgment following a jury trial [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Jury could have found that employee was a qualified person with a disability (seasonal affective disorder, a form of depression) and that school failed to reasonably accommodate her (by assigning her to a better ventilated room with more natural light).

Arizanovska v. Wal-Mart Stores, Inc., 682 F.3d 698, 115 FEP 270 (7th Cir. 2012). Panel:  BAUER, Easterbrook, Chang. Claims on Appeal:  1. Title VII/PDA discrimination (pregnancy, national origin). 2. Title VII retaliation. State law 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. Claim that employer forced employee experiencing spotting during pregnancy to take unpaid leave of absence does not meet prima facie case (no similarly-situated comparative employees; employee was treated the same way as non-pregnant employee with medical restrictions). 2. Although being placed on unpaid leave is an adverse action, no evidence that filing of EEOC charge motivated decision, where it was exactly prescribed in the company's "Accommodation Policy" and consistently enforced with all employees.

Harper v. C.R. England, Inc., 687 F.3d 297, 115 FEP 290 (7th Cir. 2012). Panel: RIPPLE, Rovner, Coleman. Claims on Appeal: Title VII and § 1981 retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: There warnings and being placed on probation not a materially adverse action and, in any event, not temporally related to complaint of racial discrimination. Termination is materially adverse, but four-month gap between complaint and termination precludes inference of retaliation from temporal proximity alone. Moreover, record establishes that management investigated the complaint of harassment, and while some comments by a manager (that employee had to grow a thicker skin and asking him what he hoped to gain by filing a complaint) suggest retaliation, that manager was not involved in decision to fire. Using indirect method of proof, employee did not establish prima facie case. He failed to locate comparable employee with attendance record like plaintiff (i.e., already on probation for attendance problems) who was treated more favorably. Moreover, because of extreme absenteeism, he was not performing to employer's expectations. Alternatively, employee did not establish that reason given for termination (absenteeism) was a pretext. Record did not reflect shifting reasons. Despite there being a genuine issue of material fact about whether the employer properly counted certain days against the employee incorrectly, there was no dispute that the employer's reason for terminated him was attendance. Even using Coleman v. Donhoe concurrence approach yields the same result.

Smith v. Bray, 681 F.3d 888, 115 FEP 81 (7th Cir. 2012). Panel: HAMILTON, Ripple, Myerscough. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff claims that he endured serious racist harassment from his immediate supervisor and was fired for complaining about it. Because employer is bankrupt, employee sues the individuals allegedly responsible for the alleged wrongs. Smith settled against his former supervisor who committed harassment. He continued suit against human resources manager Bray, who plaintiff says conspired with alleged harasser to retaliate against him in violation of § 1981. Employee asserts that Bray ignored his complaints about the harassment and persuaded her bosses to terminate him to retaliate for lodging them. An HR executive who participates in an allegedly retaliatory act against an employee that complained about race discrimination may be liable for damages under § 1981 under CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008). Court notes the "cat's paw" case law holding that an employer may be held liable where a subordinate causes the decision maker to take an adverse action against the employee. Cat's paw theory will support entity liability for retaliation under Title VII, § 1981, and § 1983, except when the defendant is a municipal corporation and the biased or retaliatory subordinate is not a policy-maker. It will also support liability for subordinate with a retaliatory motive under §1981 for causing the employer to retaliate against another employee. Plaintiff presented a genuine issue of material fact whether the HR intentionally caused the allegedly retaliatory termination of the employee, where she was substantially involved at every stage of his workplace controversies: his discrimination complaints, his disciplinary issues, his disability-leave application, and the decision to terminate him. Employee advanced an argument on appeal that blatantly retaliatory statements by the harasser could be admitted against the executive under the co-conspirator hearsay exception. Plaintiff was deprived of an opportunity to present the issue in the district court, because the employer only objected to the admissibility of the statements in its reply brief, which the employee then had no right to answer. Court could consider the new argument on appeal where there was no evidence in the record that the employee had an opportunity to make the argument in the district court. It rejects the notion that the employee could have sought leave to present the argument in a sur-reply brief. Summary judgment affirmed because there was insufficient proof of a retaliatory motive imputable to the HR executive herself. While recognizing that employees in an enterprise can conspire to retaliate in violation of § 1981, there still needs to be evidence of an improper purpose, not merely evidence that the employees communicated about the adverse decision Plaintiff presented no evidence that the HR executive shared the supervisor's alleged unlawful purpose.

Cortezano v. Salin Bank & Trust Co., 680 F.3d 936, 115 FEP 77 (7th Cir. 2012).Panel: WOOD, Cudahy, Posner. Claims on Appeal: Title VII termination (national origin). State law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant].  Grounds: Alienage is not protected under Title VII. Termination because the employee was in the U.S. unlawfully does not violate Title VII.

Jajeh v. County of Cook, 678 F.3d 560, 114 FEP 1441 (7th Cir. 2012). Panel: KANNE, Sykes, Hamilton. Claims on Appeal: 1. Title VII harassment (religion, national origin). 2. § 1981 and 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 adequately plead harassment theory. District court excluded employee's declaration because it was unsworn under 28 U.S.C. § 1746. Assuming that employee's declaration complied with FRCP 56(c)(4), he would still have lost on the merits. Harasser was co-worker with no supervisory authority, and letters of complaint did not put employer on notice of the nature of the alleged harassment, so there was no basis for imputing liability. 2. Employee's layoff at same time as 200 other doctors five months after last complaint did not raise inference of retaliation. Although there are admissions in the record that plaintiff's supervisor wanted him to be fired, there is no inference that the motive was retaliatory. No cat's-paw liability; person accused of manipulating events to cause plaintiff's termination in fact had tried to protect plaintiff's department from layoffs, and had no way of knowing that employee was being selected for termination in any case. The RIF was motivated by need to save money, which was accomplished even if some of plaintiff's duties were reassigned to a new full-time person. Record established that hospital took seniority into account. Failure to recommend plaintiff for rehire motivated by supervisor's pre-existing belief that plaintiff was a difficult employee.

Hicks v. Forest Preserve District of Cook Co., Ill., 677 F.3d 781, 114 FEP 1281 (7th Cir. 2012). Panel: MANION, Williams, Tinder. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury trial ($30,000 compensatory damages) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Two plaintiffs (Hicks and Hernandez) - maintenance mechanics for the Forest Preserve District (FPD) - filed charges with the EEOC, alleging that their supervisor (Thompson) singled them out for worse treatment, such as giving them more -damaged vehicles and filing false disciplinary reports. In the ensuing period, Hicks participated in the investigation of Hernandez's charge. Thompson issued dozens of write-ups against Hicks for various alleged work-rule violations. Hicks told that owing to the many complaints about his performance, the only way he could avoid termination was to accept a demotion to a "serviceman II" title, with a dramatic reduction in pay (from $29.62/hr. to $20.43/hr.). Hicks accepted the demotion but filed a fresh charge alleging retaliation. "Joseph Hruska, the intermediate supervisor between Hicks and Thompson. In his affidavit, Hruska stated that as soon as he began working at the Central Garage, Thompson told him that there were two employees - Hicks and Hernandez-who 'needed to be fired' because they had filed charges of discrimination against Thompson. Hruska further stated that two management level employees-Richard Wagner (the superintendent) and Richard Bon (a manager)-also told him, on multiple occasions, that the FPD wanted to 'get rid of' Hicks and Hernandez for filing charges against the FPD." Cour rejects employer's argument that Hicks did not suffer an "materially adverse action," because he supposedly accepted the demotion voluntarily: Court rejects the employer's argument that the 22 months that elapsed from Hicks' cooperation in the investigation to his forced demotion broke the chain of causation. Although temporal remoteness can vitiate causation, here there was other evidence that tended to support an inference of retaliation: "Hruska testified that Thompson told him that Hicks and Hernandez needed to be fired because they had filed charges of discrimination against Thompson, and this constitutes direct evidence that Hicks was demoted because he engaged in a protected activity." Facts adhered to the "cat's paw" model recently adopted by the Supreme Court in Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011), because the avowed decision-maker (named Sanchez-Bass) and the other officials relied on Thompson's reports. Jury charge not erroneous. The employer complained that the instruction was based on the Ninth Circuit's model instructions, disregarded Seventh Circuit law, and - most importantly - failed to describe the adverse action at issue in the case. "There is no evidence that the jury was misled or confused, the FPD is not entitled to a new trial." Affiirms the reinstatement order, over the employer's suggestion that the order would place Hicks once again under Thompson's supervision: "While the relationship between Hicks and Thompson may be acrimonious, Hicks specifically requested reinstatement, and we have ruled that mutual dislike between an employer and an employee is not a satisfactory reason to deny reinstatement."

Dass v. Chicago Board of Ed., 675 F.3d 1060, 114 FEP 1288 (7th Cir. 2012). Panel: MYERSCOUGH, Easterbrook, Hamilton. Claims on Appeal: Title VII and §1981 non-renewal (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee avowedly relied only on direct method to prove claim. Principal allegedly told teacher she should look for a job "on the North Side where most of the Indian kids go." Comment was not material because made ten months before non-renewal decision Same principal resisted her grievance to be rehired (when she was laid-off because erroneously classified as temporary), assigned her to a more difficult class to manage and placed her under observation There times in one day. Of these actions, the only one that is materially adverse is termination (transfer from third to seventh grade was at most subjectively injurious). Ample evidence decision was based on inability to control class.

Blue v. Int'l Brotherhood of Electrical Workers Local Union 159, 676 F.3d 579, 114 FEP 1210 (7th Cir. 2012). Panel: WOOD, Rovner, Williams. Claims on Appeal:  Title VII retaliation. Disposition Below:  Judgment after a jury trial ($202,396 damages) [plaintiff]. Outcome on Appeal:  Affirmed [plaintiff]. Grounds: Union-employer waived all but an appeal from FRCP60 relief. Challenge to admission of evidence at this stage requires proof of significant probability of substantial injustice, which was not proven here; indeed, admission of partial file from civil rights agency was relevant to causation issue. Evidence at trial, even just the plaintiff's testimony alone, was sufficient to support the verdict.

Puffer v. Allstate Ins. Co., 675 F.3d 709, 114 FEP 1025 (7th Cir. 2012). Panel: FLAUM, Tinder, Shadid. Claims on Appeal:  Title VII pay and promotion (sex). Disposition Below: Class certification denied [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: District court did not abuse discretion in denying certification. Denial of certification of disparate impact issue waived because issue was supposedly not fully developed in district court, therefore not preserved as a basis for appeal. Alternatively, claim of disparate impact was insufficiently supported on the merits to warrant certification.

Abner v. Ill. Dep't of Transp., 674 F.3d 716, 114 FEP 961 (7th Cir. 2012). Panel: ROVNER, Bauer, Williams. Claims on Appeal: Title VII retaliation. Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Judicial review of state administrative decision on termination was claim preclusive of Title VII claim of retaliatory discharge.

Steffen v. Donhoe, No. 11-2664 (7th Cir. Mar. 21, 2012). Panel: FLAUM, Posner, Manion. Claims on Appeal: Rehabilitation Act termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Under pre-amended ADA definition of "regarded as" disabled (which applies to this case), he failed to show how is employing agency regarded him is substantially limited in the major life activities (if they count as MLAs) of bending, stooping, climbing, reaching and twisting. Though employer admitted believing that employee was "receiving accommodations for a disability," in a deposition, the colloquial use of the term "disability" does not necessarily equate with the statutory standard. decision maker testified that she did not know the extent of his injuries and intended that he return to work. Because employee did not demonstrate himself to fall within standard of "disability," he lacked standing to challenge "100% healed" policy. Notes split in circuits about whether application of a 100% healed policy may be circumstantial evidence that an employer regards that employee as substantially limited in the major life activity of working.

Hanners v. Trent, 674 F.3d 683, 114 FEP 965 (7th Cir. 2012). Panel: RIPPLE, Rovner, Feinerman. Claims on Appeal:  §§ 1981 and 1983 discipline (reverse race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Employee's promotion grade knocked down and employee was suspended due to his involvement in circulating sexist/racist email. Comparison to 18 other individuals given lighter penalties for workplace infractions did not produce "direct method" evidence of race discrimination, where other individuals are not identified by race, nor are they shown to be similarly situated (nature of work violation, seriousness of violation). No circumstantial evidence that he was selected out for punishment due to being white. Deviation from typical policy for investigating charges (filing of intake form) not shown to have racial animus, and such deviations were permitted when an employee's supervisor (as opposed to co-worker) commences the process.

King v. Acosta Sales and Marketing, Inc., No. 11-3617 (7th Cir. Mar. 13, 2012). Panel: EASTERBROOK, Posner, Wood. Claims on Appeal:  1. Title VII and EPA compensation (sex). 2. Title VII harassment (sex). Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds:  1. While education and experience factors might account for the disparate salaries for employees first coming in the door, it should not count not afterwards: "Changes in salary at most firms depend on how well a person perform at work. Education and experience may predict on-the-job performance, but the prediction affects the starting wage, just as scores on the LSAT predict grades in law school and thus affect the probability of admission." Pure chance distribution, while a "factor other than sex," untenable where "actual distribution is not random": every man was paid more than all but one woman, and men received greater raises. Under the Equal Pay Act, the burden to establish that such factors actually account for the difference in salaries is on the employer, making application of the McDonnell Douglas test inapposite: "A concurring opinion in Coleman v. Donhoe, 667 F.3d 835 (7th Cir. 2012), observed that the burden-shifting approach may cause more confusion than can be justified by its benefits. Today's case illustrates one form that confusion can take." 2. Most severe or pervasive events involved one manager who admittedly ceased harassing employee by 2004; remaining events (one remark every four to six months) insufficient to establish a hostile work environment.

Smith v. Lafayette Bank & Trust Co., 674 F.3d 655, 114 FEP 901 (7th Cir. 2012). Panel: YOUNG, Rovner, Williams. Claims on Appeal:  ADEA retaliation. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Retaliation claim on There instances of correspondence with administrators fails because none were protected activity: (1) employee's March 7, 2003 complaint inquiring about the formula used to calculate a contribution to her pension plan; (2) her September 2005 complaint about cutbacks to her branch staff; and (3) her March 2006 complaint regarding issues with her 401(k) contributions.

Good v. Univ. of Chicago Med. Cent., 673 F.3d 670, 114 FEP 903 (7th Cir. 2012). Panel: HAMILTON, Kanne, Sykes. Claims on Appeal:  Title VII and §1981 termination (reverse race). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: District court erred under direct method, in evaluating comparable employees, in rejecting two such employees because they were managerial instead of supervisory, where all of the employee shared a common decision maker. Summary judgment affirmed on alternative basis that no inference could be drawn that termination (with no option to accept demotion) was improperly motivated, especially where performance history (i.e., poor attitude) was essentially not contested and employee was replaced by another employee of the same race. Under indirect McDonnell Douglas method, employee fails to present "background circumstances" for why white employee might be the target of discrimination, for prima facie case is not met.

Cook v. IPC Int'l Corp., 673 F.3d 625, 114 FEP 909 (7th Cir. 2012). Panel: POSNER, Wood, Sykes. Claims on Appeal:  Title VII termination (sex) and retaliation. Disposition Below:  Judgment after a jury trial [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: District court erred by charging the jury to find single decision maker, where two different supervisors were involved, must be funnelled through a "cat's paw" framework per Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), or else the employee must prove the existence of a "sole decision maker." Defendant security company employed a supervisor who made sexually offensive comments to other women in plaintiff's presence, said he wanted to have an all-male staff, and exhibited favoritism toward his male subordinates. The plaintiff complained to him repeatedly about plaintiff's behavior. He refused to change his ways, began giving her negative evaluations and accused her in communications to the defendant's headquarters of serious misconduct. The regional manager (and alleged harasser's immediate superior), eliminated her job and sought to repost her to another shopping center, but before she could begin alleged harasser fired her. District court charged the jury that it was required to identify "the decision maker."

Hayes v. City of Chicago, 670 F.3d 810, 114 FEP 801 (7th Cir. 2012). Panel: KANNE, Williams, Hamilton. Claims on Appeal:  Title VII termination (race). Disposition Below:  Judgment on the pleadings, Rule 12(c) [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Judicial review of Police Board decision on termination was claim preclusive of Title VII claim of race discrimination.

McReynolds v. Merrill Lynch, 672 F.3d 482, 114 FEP 710 (7th Cir. 2012). Panel: POSNER, Wood, Hamilton. Claims on Appeal:  Title VII pay and promotion disparate impact (race). Disposition Below:  Class certification denied [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: Appeal held timely under Fed. R. Civ. P. 23(f). District court abused discretion by not certifying class of African-American brokers challenging, on disparate impact grounds, delegation of discretion over decisions that influence assignment of Financial Advisors to 135 "Complex Directors. "Case challenges company's "teaming" policy and its "account distribution" policy. (The teaming policy permits brokers in the same office to form teams. Account distributions are transfers of customers' accounts when a broker leaves and his clients' accounts must therefore be transferred to other brokers.) After Wal-Mart Stores v. Dukes, plaintiffs tailored their request for class certification to certification of select legal issues (FRCP23(c)(4)) and for entry of injunctive relief to end the practice (FRCP 23(b)(2)). District court erroneously found that holding that the employees' claims were insufficiently common to bracket together into a single case. Allegation that employer fostered teaming-up opportunities meant - according to the plaintiffs - that African-American brokers tended to get shut out of business. Allegation has enough common to warrant at least limited class certification; "district judge exaggerated the impact on the feasibility and desirability of class action treatment of the fact that the exercise of discretion at the local level is undoubtedly a factor in the differential success of brokers, even if not a factor that overwhelms the effect of the corporate policies on teaming and on account distributions." Rule 23(c)(4) allows challenge to the two policies as can most efficiently be determined on a class-wide basis, consistent with the rule just quoted."

Keeton v. Morningstar, Inc., 667 F.3d 877, 114 FEP 269 (7th Cir. 2012). Panel: ROVNER, Manion, Tinder. Claims on Appeal: 1. § 1981 and Title VII pay (race). 2. § 1981 and 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 abuse discretion in declining to allow plaintiff to file a belated response to summary judgment instanter, where it previously granted two months to respond to the motion and then a second chance to get the opposition on file. Legitimate reasons for pay disparities include paying market rates and superior performance reviews. 2. Pre-suit complaint about unwarranted surveillance by co-workers was not based on race. Post-suit, no adverse action where employer (without consequences) investigated plaintiff's alleged misuse of software.

Harris v. Warrick County Sheriff's Dep't, 666 F.3d 444, 114 FEP 266(7th Cir. 2012). Panel: SYKES, Easterbrook, Flaum. Claims on Appeal: § 1981 and Title VII pay (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Use of nicknames (Calvin, Tubbs, Cowboy Troy, Urkle) and screening of clips from movie "Blazing Saddles" by detectives not evidence of racial hostility or bias. No evidence that white permanent hires were similarly situated to him with respect to discipline. Allegations of insubordination, violation of standard operating procedure and lack of commitment were more serious than complaints of subpar performance against white deputies.

EEOC v. Management Hospitality of Racine, Inc., 666 F.3d 422, 114 FEP 145 (7th Cir. 2012). Panel: YOUNG, Easterbrook, Bauer. Claims on Appeal: Title VII harassment (sex). Disposition Below: Judgment after a jury trial ($1,000 and $4,000 compensatory award, and $100,000 punitive damages) [plaintiff]. Outcome on Appeal: Affirmed except as to one defendant, punitive damages remanded [plaintiff]. Grounds: Hostile work environment took the form of comments, required to credit, as evidence that the employee was not subjectively offended by the behavior, a screen shot from one of the employee's social-networking pages of a sexually-explicit joke. "As the district court observed, 'sharing jokes with friends in an online community is vastly different than being propositioned for sex by a supervisor at work.'" Regarding the employer's defense under Faragher/Ellerth that it supposedly had an effective anti-harassment policy, court holds that "a rational jury could have found that the policy and complaint mechanism were not reasonably effective in practice," because the managerial employees did not carry out their duties (often ignoring employee complaints), delayed investigations for months, and in fact were themselves possibly engaged in harassing behavior. Managers also testified that they were not given the training required under the company's own procedure. The anti-harassment policy was also reported to employees without identifying a point person to receive complaints, and in a confusing poster that mostly concerned other kinds of emergencies, such as tornadoes and poisoning. Not suited to teen employees. The panel also affirms that, in spite of the confusing reporting chain, the two teen employees made reasonable efforts to complain. Employee might reasonably decline to make repeated complaints when the first one failed to get any tangible result. Though employee could have reported complaints to a higher level, within a few weeks the harasser was already gone. Punitive damages affirmed; jury could find that the employer did not engage in good faith efforts to prevent harassment. Among other things, the record revealed that the anti-harassment policy actually discouraged complaints, because it warned employees of "severity of knowingly making a false accusation of discrimination or harassment." This language was apparently added after the company owner was personally sued for harassment. Moreover, employer did not giver responsible manager addition al training about harassment and managers did not comply with policy. No error in verdict form with special verdict form pertaining to damages. Evidence of other incidents of harassment by same manager relevant to and admissible for rebutting Faragher/Ellerth defense (FRE401 and 403). Liability against personnel company that performed HR functions for employer reversed, ordering a new trial as to that defendant. That defendant received no notice that it would have to defend against a "control" theory in the post-trial motions, i.e., that it so controlled the employment relationship that it is appropriate to regard it as the de facto employer. Finally, as a result of the reversal, an injunction against that defendant (requiring the company to adopt new anti-harassment procedures) was also dissolved and the punitive damage award remanded (because the remaining employer in the case employed fewer than 100 employees).

Coleman v. Donahoe, 667 F.3d 835,114 FEP 160 (7th Cir. 2012). Panel: HAMILTON, Wood, Tinder [WOOD, concurring, joined by Tinder and Hamilton]. Claims on Appeal: 1. Title VII termination (race, 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. Genuine issue of material fact whether employee identified comparable employees. Employee was placed on leave, then terminated for expressing homicidal thoughts in psychotherapy, then communicated to manager (plaintiff later reinstated after arbitration, without back pay). "[T]he proposed comparator must be similar enough to permit a reasonable juror to infer, in light of all the circumstances, that an impermissible animus motivated the employer's decision. Here, Coleman's two white, male co-workers were disciplined by the same decision maker, subject to the same code of conduct, and disciplined more leniently for violating the same rule as she." Same comparators could be used to demonstrate pretext, as well. Evidence of selective application of the rule against violence and Thereats to plaintiff undercuts employer's assertion that it was just neutrally enforcing its "no tolerance" policy. District court erred in unreasonably narrowing the inquiry of who was similarly situated to Coleman for purposes of McDonnell Douglas. Plaintiff identified white male employees who committed actual assaults (one with a knife), but the district court waved these comparators aside because they had a different supervisor and occupied different titles. Regarding the former, the court finds more important whether the same decision-maker (not the same supervisor) was involved, and in this case the employees shared an operations manager who was involved in both decisions. As to the latter, the record showed that a single set of work rules and disciplinary standards applied across the workplace regardless of job title. Differences in titles were thus less relevant to this determination. The violations were also, at least arguably, of comparable seriousness under UPS's own rules; that they did not break the rule in precisely the same manner as plaintiff does not mean that summary judgment was appropriate. By directly Threatening another employee with a knife in the workplace, the white male employees engaged in conduct that appears, at least for purposes of summary judgment, at least as serious as plaintiff's private statement in psychotherapy. Honest belief pertains only to pretext stage - at the prima facie stage, issue is objective comparators, not whether employer honestly believed that individuals were not comparable. The court also notes that district courts have too often demanded addition al proof of bias in the third, "pretext" stage of the case, and this too is error: "a discrimination plaintiff may employ . . . comparator evidence to discharge her burden at the pretext stage as well as to satisfy the fourth element of her prima facie case." Arbitration ward of reinstatement was not evidence of pretext - award was not issue preclusive, and in any event did not address whether employer honestly believed there was a Thereat. Nonetheless, arbitrator's findings that plaintiff did not actually violate the work rule about Thereats to others and there was no plausible Thereat are probative. Also in support of the employee's "pretext" argument, the court takes notice of the special context of any alleged Thereat, in a private psychotherapy session; if the employer honestly believed that the employee sought a Thereat to her boss, in the ordinary course it would have sought a fitness-for-duty evaluation, not simply cut the employee loose. 2. Causation demonstrated in part through temporal proximity: employer began to load unpleasant duties on the employee within a month of her making EEO complaints, culminating in her suspension and termination. Evidence that supported pretext for discrimination claim also supports pretext for retaliation claim.

Power v. USF Holland, 667 F.3d 815, 25 A.D. Cases 931 (7th Cir. 2011). Panel: MANION, Posner, Cudahy. Claims on Appeal: ADA termination/reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed[defendant]. Grounds: No genuine issue of material fact that employee was (or was regarded as) substantially limited in the major life activity of working. Evidence did not establish that employee was unable to drive trucks. Lifting limitation at most affected dock work, which was more limited than a "class of jobs" as required by case law. Did not prove that most truck driving also required dock work. Mere limitation upon specific kinds of driving not a significant limitation. Under pre-ADAAA standard, employer did not "regard" plaintiff as substantially limited in the major life activity of working. Rejects argument (noting split in circuits) that "100% healed" policy was necessarily proof of a "regarded as" violation. Employer could elect to weed out employees with impairments, provided that they don't rise to perceived disabilities. Safety-sensitive positions might warrant extra scrutiny of impairments. No evidence that employee considered employee to be unable to perform for employees other than itself. Dicta suggests that 100% healed test would likely not pass muster under ADAAA

Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 114 FEP 76 (7th Cir. 2011). Panel: FLAUM, Kanne, Wood. Claims on Appeal: Title VII retaliation. Disposition Below: Reduced attorney fee award (from $131.665 to $70,000)[defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in considering the amount of fees that lawyer had already earned under contingency fee agreement and flat fee in determining lodestar. Panel expressed reservations about a contract that appeared to "unfairly take advantage of" the client by requiring her to pay There kinds of fees, but contingent fee that an attorney earns from his client and the statutory fee that an attorney recovers from the losing party represent distinct entitlements. Lodestar rate must be measured solely by the reasonable market rate; there is no judicial discretion under the lodestar method to reduce that rate "by a factor that has no bearing on the prevailing market rate. Decision creates split with Eighth Circuit case law that permits a district court to use its "supervisory powers" to police statutory fees awarded to an attorney who also has a contingency fee, to prevent a windfall. The district court also erred in relying in part, without notice to the parties, on evidence of a table of customary attorney's rates in common use in the D.C. Circuit, the "Laffey Matrix," and a table of the Consumer Price Index (CPI) to set the lodestar amount. Failure to notify the parties that it intended to exercise judicial notice and consult the Laffey Matrix and CPI violated the notice requirements of FRE201(e). Parties were entitled to rebut those tables with other data. D.C. and Third Circuits have permitted district courts to rely in part on this table as evidence of reasonable and customary rates. Attorney furnished affidavits from There local practitioners who averred that a $592.50 rate was market rate for a lawyer of his experience; the affiants' rates themselves ranged from $450 to $700. Court essentially upholds the district court judge's finding that the affidavits did not support the lawyer's rate, though with reservations. The panel notes that this particular practitioner had received a lower rate (even adjusted for inflation) in a number of prior cases, which was a relevant factor. Moreover, neither the affiants nor the lawyer himself presented evidence that they had actually billed and been paid at the hourly rates stated in their papers. District court abused its discretion by (1) discrediting the affidavits to the extent that the testifying practitioners did not use contingency fees, and (2) knocking down the hourly rate based on "plaintiff's failure to introduce evidence of fee awards in contested cases that approach the rate requested here." District court's opinion, absent the impermissible factors, does not reflect how the court reached a $400/hour rate. Zeroing-out co-counsel award was error as well, because the judge did not make a finding on the lawyer's reasonable market rate, did not adequately explain its decision (which reversed a prior order allowing the fee), may have relied on an erroneous belief that the fee to co-counsel had already been paid, and mistakenly believed that the law "requires a party in a fee-shifting case to have prepaid the fees incurred by an outside firm as a precondition for recovery." In light of the many factual disputes, District court erred by not granting the plaintiff's counsel motion for a testimonial hearing.

Abuelyaman v. Illinois State Univ., 667 F.3d 800, 114 FEP 1 (7th Cir. 2011). Panel: MANION, Ripple, Sykes. Claims on Appeal: 1. Title VII non-renewal (race, religion, national origin). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Judgement as a matter of law and after a jury trial[defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds:1. District court did not abuse discretion by finding excusable neglect for failure to file a timely notice of appeal, where attorney believed that the notice was filed electronically, but it was not owing to a technical failure at the court's end. Plaintiff associate professor could not use tenured professors as comparable employees, for purposes of making claim under "direct method," where the university held them to different performance standards. Non-tenured professors with comparable rankings were either not renewed or improved after counseling. Alleged comment made by reviewing professor on committee about how hard it was to hear one Middle Eastern professor, and another complaining how difficult it was to set up a meeting with someone around his worship schedule, was ambiguous at most. Affidavit of reviewing professor was purely conclusory about alleged biases of committee. That the employee showed some improvement in his final evaluation did not cast doubt on the explanation that his overall track record was poor. 2. Employee waived first argument (that he was not renewed for opposing discrimination against another faculty member) but not adequately presenting it in the district court, and there is no evidence of causation anyway. Other incident lacked evidence of a protected activity - although plaintiff opposed unfair treatment of another faculty member, he did not indicate that the complaint concerned discrimination and hence was not protected activity.

Overly v. KeyBank Nat'l Assoc., 662 F.3d 856, 113 FEP 1345 (7th Cir. 2011). Panel:  CONLEY, Williams [Evans, deceased]. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII discrimination (sex). 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. Being referred to as "cutie" 5-10 times, with other mild statements, not sufficiently severe or pervasive to constitute harassment. Although a claim that plaintiff was falsely accused of work-rule violation might have made a difference in this analysis, this latter fact is properly disregarded because there was no genuine issue of material that the employee violated the rule and discipline was not gender-related. Evidence that one male sales-person benefitted from sales reorganization did not prove that decision (or temporary loss of access to customer information)was gender-based, when all other representatives, male and female, were equally disadvantaged. Harassing events that occurred after employee left company not relevant to determining hostile work environment Allegedly hostile events described above not sufficient to support constructive discharge claim. 2. For claim of discrimination in territory assignments, pay, benefits and opportunity, statement by boss when she resigned, "good riddance bitch," not direct or circumstantial evidence of prior acts being motivated by sex. 3. Reassignment of territories and denial of access to new clients occurred across the board, not just to employee, so no evidence of causation.

Makowski v. Smith Admundson LLC, 662 F.3d 818, 113 FEP 1351 (7th Cir. 2011). Panel: YOUNG, Rovner, Williams. Claims on Appeal: Title VII/PDA termination (pregnancy). FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Evidence that HR director told plaintiff that she was "let go because of the fact that [Makowski] was pregnant and . . . took medical leave"; that she believed "'believed that there were [sic] a group of people that were discriminated against because they were pregnant or because they took medical leave"; "it might be a good idea to speak with a lawyer [as there] might be a possibility of a class action"; and that male fired on the same day was deliberately chosen because "outside counsel suggested labeling both . . . terminations as part of a reduction in force" was admissible as party admissions, Federal Rule of Evidence 801(d)(2)(D), and district court erred by excluding. For an employee's statement to constitute an admission of the employer, "she need not have been personally involved in the disputed employment action, 'but her duties must encompass some responsibility related to 'the decision making process affecting the employment action.' ' . . . Involvement in the process leading up to the employment action at issue is enough to make an employee's statement an admission." HR director had the requisite level of involvement in the process. "O'Gara's duties as Human Resources Director at the Firm included regular consultations regarding decisions to eliminate positions and terminate employees in order to ensure compliance with federal anti-discrimination laws, making her a part of the firing process. . . . she was asked to confer with outside labor and employment counsel regarding the decision to terminate Makowski." Such evidence was sufficient to prove discrimination under direct method, if credited.

Palka v. City of Chicago, 662 F.3d 428 (7th Cir. 2011). Panel: SYKES, Ripple, Kanne. Claims on Appeal: 1. § 1983 termination (reverse race). 2. Title VII termination. Disposition Below: 1. Summary judgment [defendant] 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No evidence of Monell policy or custom. Declining to endorse custom-or-policy of inaction theory from Sixth Circuit. Statistical evidence of hiring is ambiguous and too small a sample to evaluate. Supervisor at police academy not a "final decision maker,' because hiring decisions are filtered through a commander. "Ratification" theory requires that ratifier share discriminatory motive, and there was no such evidence presented here. No jurisdiction to consider interlocutory order concerning defendant who was already voluntarily dismissed. 2. No exceptions to res judicatapply to defense against Title VII action where employees lost a prior § 1983 claim. Even if they were waiting for Title VII right-to-sue letters, there were alternatives open to plaintiffs to preserve Title VII claim (ask EEOC for accelerated right-to-sue letters, seek a stand-still agreement from employer, reach agreement with employer not to raise res judicata to later-filed suit, wait to file § 1983 claim, request that court stay § 1983 to await RTS letters).

Barton v. Zimmer, Inc., 662 F.3d 448, 113 FEP 929 (7th Cir. 2011). Panel: SYKES, Hamilton [Evans, deceased]. Claims on Appeal: 1. ADEA termination. 2. ADEA retaliation 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. Even if evidence, if credited, presents genuine issue of material fact about discriminatory motive, employee has no remedy under ADEA because he was not fired, did not have his pay reduced and cannot be reinstated to work because he has become totally disabled. 2. A Thereat to remove the employee from a selling-skills class and assignment to a project disfavored by the employee not materially adverse.

Egan v. Freedom Bank, 659 F.3d 639, 113 FEP 801 (7th Cir. 2011). Panel: WILLIAMS, Manion, Hamilton. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine issue of material fact about causation, where record included evidence that a departing executive informed the incoming president that the plaintiff, who complained about harassment, "had done something that she should have been fired for." Combined with the absence of any other reason for Egan's termination, record provided sufficient basis for a jury to hear and decide the case. It also holds that the employer's proffered explanation - that there was a financial incentive to eliminate some middle management positions - was belied by the bank's hiring shortly thereafter of four more executives.

Huon v. Johnson & Bell, Ltd., 657 F.3d 641, 113 FEP 636 (7th Cir. 2011). Panel: WOOD, Posner, Rovner. Claims on Appeal: Title VII and ADEA discrimination. Disposition Below: Stay of proceedings [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in granting Colorado River abstention on ground that employee's tort claim against same defendant was still proceeding in state court. Cases are not parallel (judgment on defamation and interference with prospective economic advantage would not preclude discrimination claim).

O'Leary v. Accretive Health Inc., 657 F.3d 625, 113 FEP 481 (7th Cir. 2011). Panel: ROVNER, Cudahy, Adelman. Claims on Appeal: Title VII and § 1981 retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee did not oppose a practice prohibited by either Title VII or § 1981 with respect to one manager who engaged in a single instance of mild, sexually-charged remarks. On the other hand, with respect to another manager, the employee could reasonably believe that repeated incidents of singling out and criticizing African-American co-worker did constitute racial harassment. Regarding pretext, while employee presented evidence in rebuttal of some of the criticisms of his performance (declarations by supervisors who denied having made critical remarks about the employee attributed to them), remarks by CFO were not rebutted. Employee did not depose CFO to make record of factual disputes; although he sought leave to do so, district court did not err in denying leave when the employee had already taken 13 depositions. Because of persistent record of criticisms of plaintiff's performance in the record, disputes about whether these criticisms were ever communicated to the employee did not create genuine issue of material fact about whether the employer honestly believed them.

Dickerson v. Board of Trustees of Community College Dist. No. 522, 657 F.3d 59525 A.D. Cases 193 (7th Cir. 2011). Panel: WILLIAMS, Easterbrook, Bauer. Claims on Appeal: ADA promotion, termination and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee's performance evaluation showing unsatisfactory performance in There of seven categories demonstrates that employee failed to prove "reasonable expectations" for prima facie case.

Eaton v. Indiana Department of Corrections, 657 F.3d 551113 FEP 386 (7th Cir. 2011). Panel: GOTTSCHALL, Rovner, Wood. Claims on Appeal: Title VII termination (sex).  Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in holding that employee had not identified suitable comparator. Employer shifted its story in the course of the litigation. It repeatedly argued in district court that plaintiff (a female correctional officer) refused an assignment and quit, but argued "for the first time on appeal that it fired [plaintiff] based on her disciplinary history and her refusal of an assignment, and further claims that differences between [plaintiff's] and [male comparable] Curtis's disciplinary history prevent Curtis from being an appropriate comparator." Curtis answered to the same lieutenant as plaintiff, and like plaintiff refused an assignment to a new unit. When asked to turn in his belt and badge, male said he quit and left premises but was allowed to return to work forty-five minutes later, while plaintiff was not allowed to return at all. If anything, male comparator was more blameworthy. District court also credited the prison's argument that Eaton had a past history of discipline for absenteeism, while Curtis did not. Court finds this distinction irrelevant where - as here - the employer did not actually weigh that factor at the time of the decisions: "Factors never considered by the employer cannot provide any insight as to whether the employer's decision was motivated by discriminatory intent." Court remands the case with the issue of pretext unresolved. "Although the parties argue the issue of pretext, the district court did not decide that issue, and the record below - containing no evidence of who made the decision to terminate [plaintiff] or why - does not permit the issue of pretext to be resolved by this court."

Rodgers v. White, 657 F.3d 511 (7th Cir. 2011). Panel: CUDAHY. Bauer, Tinder. Claims on Appeal: Title VII, and §§ 1981, 1983 termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in finding that plaintiff failed to identify suitable comparable employee. Plaintiff, only black employee in a crew of more than 27 lawn-maintenance workers was terminated for two alleged rule infractions: that he "(1) allowed abuse of state equipment and then failed to cooperate with the Inspector General's investigation, and (2) improperly recorded overtime and refused to assist her effort to rectify the problem." In both instances, though, plaintiff's supervisor - who is white and who allegedly participated in the same activity, jointly with plaintiff - was spared, i.e., though eventually demoted to yard work, he was not fired. There was sufficient evidence under the McDonnell Douglas burden-shifting method of proof to present a genuine issue of fact. For comparative purposes, a supervisor can be considered "comparable" i.e, "when uneven discipline is the basis for a claim of discrimination, the most-relevant similarities are those between the employees' alleged misconduct, performance standards, and disciplining supervisor." Genuine issue of material fact whether plaintiff's infractions were more severe than supervisor's; "[t]he Inspector General's information [on the misuse of equipment] came from a single employee who accused both [plaintiff and supervisor] of endorsing private use of state equipment, and both men denied the accusation." And on the timekeeping violations, common-sense suggests that the supervisor, if anything, ought to be held to higher account; "at most, [plaintiff] shared responsibility for the perceived paperwork errors, since he and [his supervisor] jointly submitted the December time slips" and admitted that "timekeeping and attendance records were solely his responsibility." The defendants proffered a third reason for plaintiff's termination - that he skipped out on an after-hours meeting called by a superior - but the panel holds that there is a genuine issue of material fact about whether that reason was worthy of credence, in light of the fact that plaintiff had not been informed that the meeting was mandatory and superior admitted that she had no authority to call the meeting in the first place.

Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 113 FEP 104 (7th Cir. 2011). Panel: YOUNG, Easterbrook, Bauer. Claim on Appeal: 1. Title VII/PDA termination (race). 2 . ADA termination. 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. Denial of accommodation of light-duty work for non-work related injuries is not direct evidence of discrimination, because it applies to pregnancy and other conditions equally. Fact that co-workers and supervisors used to assist employee prior to pregnancy but declined to grant accommodation is not direct evidence of discrimination, because assistance is a courtesy while accommodations require formal arrangements. Fact that certain physically strenuous activities she was required to perform were not listed as "essential functions" in job description was not direct evidence. No evidence that supervisor only commenced plan to fire employee when she learned about pregnancy; decision was already in the works. Evidence of alleged comparable employees who were allowed accommodations and not fired were either not established by admissible evidence or other factors motivated the decision. 2. Employee's evidence may support inference that her pregnancy constituted a disability because it was not a function of a normal pregnancy, i.e., physiological disorder leading to cramping, spotting and risk of miscarriage. Summary judgment affirmed on ground that employee failed to show that the impairment significantly limited her in major life activity. Condition was of limited duration and no evidence of long-term limitations as a result of pregnancy. No record-of-disability claim for same reason. Employer did not regard plaintiff as disabled (no evidence that it misperceived her condition or harbored stereotype of pregnancy). 3. When employee first engaged in protected activity (seeking accommodation), employer had already terminated her because she ran out of vacation and sick time.

Everett v. Cook County, 655 F.3d 723,113 FEP 9 (7th Cir. 2011). Panel: KANNE, Sykes (Evans, deceased). Claims on Appeal: Title VII and § 1983 termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No evidence that memos about plaintiff's termination, tossed out by a decision maker during a routine office cleaning before a change of jobs, was spoliation. No evidence of pretext where candidate who was retrained was found most qualified for position based on desire to lead, productivity, administrative experience, skill and flexibility. Evidence of report from years earlier that indicated that plaintiff was more productive than the candidate selected not probative of pretext where there is no evidence the decision maker saw it and it did not rebut overall the honest belief decision maker manifested. Employee also fails, under McDonnell Douglas burden-shifting test adopted for reverse-race cases to show background circumstances why she would have been selected for termination over African-American. 

Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 112 FEP 1697 (7th Cir. 2011). Panel: WOOD, Kanne, Sykes. Claims on Appeal: 1. Title VII hiring (race). 2. Title VII compensation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. There was sufficient evidence in the record to prove their claims by the "direct method," i.e., "direct or circumstantial evidence that would permit a jury to infer that discrimination motivated an adverse employment action." Record revealed that manager in charge of hiring supposedly had a penchant for favoring white employees: he would send Latinos (including plaintiffs outside to scrub parking lots, clean sewers, and tend to other disliked tasks "as often as possible" during the cold winter months; followed them around during the day, timing their breaks and scrutinizing their work; and made racist statements (that he got his job because he's white; said "I'm white and I'm right"; Latinos are "dummies" and "stupid"). Also, evidence that when open hiring process produced only Latino candidates, manager re-opened the process, drew up his own list of candidates and hired two whites. One Latino that was retrained was given less-desirable night shift, told by manager that day shift was awarded to another candidate because "he's white just like him, and he had a family to take care [of]." Fact that one Latino was hired does not mitigate other evidence of race-conscious hiring. "Title VII would have little force if an employer could defeat a claim of discrimination by treating a single member of the protected class in accordance with the law." Individual plaintiffs were raising their own disparate treatment claims, not a broad-based pattern or practice claim. 2. No evidence of comparable whites who were paid better, nor evidence that salaries were set on the basis of race.

Yancick v. Hanna Steel Corp., 653 F.3d 532, 112 FEP 1537 (7th Cir. 2011). Panel: TINDER, Wood, Williams. Claims on Appeal: § 1981 harassment. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion by refusing to accept plaintiff's opposition papers that were filed late under the court's order. Co-worker who was hostile to plaintiff not shown to have racial motivation by slurs, epithets or other overtly race related behavior. Employee complained to immediate supervisor only about general hostility, not race. No evidence that any alleged hostility was subjectively offensive (plaintiff testified that he was not intimidated by the behavior and "loved" his job). Nor were the co-worker's occasional racial comments sufficiently severe or pervasive to constitute harassment. Although employee asserts that co-worker assaulted him by dropping a heavy coil on his foot, there is no evidence from which an inference can be drawn that the incident was deliberate. Lay testimony that witnesses believed incident was racially motivated (FRE701) lacked foundation because declarants did not witness incident in question. In any event, evidence suggested more strongly that dropping of coil was the product of negligence. Plaintiff also failed to avail himself of company's identified anti-harassment policy (complaining to general manager or director of human resources); complaint to line supervisor did not comply with policy and, moreover, complaints were not specifically racial.

Burnell v. Gates Rubber Co., 647 F.3d 704, 112 FEP 1441 (7th Cir. 2011). Panel: KANNE, Rovner, Sykes. Claims on Appeal: 1. Title VII termination (race) 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant] 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant] 2. Reversed [plaintiff]. Grounds: 1. No evidence that similarly situated employees were treated better. Manager's comment that employee, in supposedly resisting work assignment, was playing the "race card" did not constitute "direct" evidence of discrimination. 2. While employee had not complained about race discrimination when he refused the tool "turn down" assignment (and was terminated after refusing to sign disciplinary letter), genuine issue of material fact whether employer perceived the complaint as racially based in view of employee's long history of complaining about racial discrimination. Manager accused employee of playing the "race card" in supposedly refusing to accept responsibility for not carrying out a direction. Court reminds that temporal proximity is only "evidence of causation, not a separate element of the prima facie case, and thus there will be cases in which a plaintiff can demonstrate causation despite a substantial time lag."

Luster v. Illinois Dep't of Corrections, 647 F.3d 652, 112 FEP 1444 (7th Cir. 2011). Panel: HAMILTON, Posner, Tinder. Claims on Appeal: Title VII disciplinary suspension (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant] . Grounds: No genuine issue of material fact that a non-African American employee charged with physical abuse of a sexual nature was treated more lightly. Plaintiff listed two white comparators, but for the first there was no admissible evidence that the employee actually committed the violation (indeed, the charge was found not substantiated), and the second received the same 30-day suspension. Hence employee did not establish prima facie case. Alternatively, there is no evidence that the reason given by the employer for the suspension (assault on co-worker) was pretextual; investigation, if not perfect, was reasonable enough for superior officer to manifest an honest belief that employee committed the violation.

Benuzzi v. Board of Education of the City of Chicago, 647 F.3d 652, 112 FEP 1444 (7th Cir. 2011). Panel: TINDER, Flaum, Wood. Claims on Appeal: 1. Title VII suspension (sex) 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff complained that district court abused discretion in striking parts of her Local Rule 56.1 statement of facts as being excessively long; court notes that district court probably ought to have allowed employee to restate facts in revised submission, that because both sides agreed that all factual submissions ought to be considered the dispute is moot. On the merits, the There disciplinary suspensions lacked tangible job consequences, so plaintiff did not present prima facie case. Alternatively, employee fails to establish any gender-based reason for actions. 2. Employee received a "Notice of Disciplinary Action," which is the first step towards formal disciplinary proceedings, one day after plaintiff's own deposition in her discrimination case. The notice referenced nine separate incidents dating back four months. Employee also received an hours-reduction notice. Genuine issue of material fact whether the post-deposition disciplinary actions may have been materially adverse to the plaintiff. While written warnings, standing alone, do not constitute materially adverse actions, the sweeping Notice of Disciplinary Action citing petty misdeeds that allegedly occurred months ago, coupled with the unexplained memorandum restricting her access to school building, could constitute an adverse action. Also a genuine issue of material fact whether the record strongly hinted that the disciplinary actions were motivated by retaliation for employee commencing her discrimination lawsuit. "The incredibly short span of time separating Benuzzi's deposition, at which [manager] was present, from her receipt of two arguably adverse documents authored by [manager] might reasonably give rise to the inference that the events were linked."

Davis v. Time Warner Cable of Southeastern Wisc., LP, No. 10-1423 (7th Cir. July 5, 2011). Panel: TINDER, Flaum, Manion. Claims on Appeal: 1. Title VII and § 1981 termination (race). 2 .Title VII and § 1981 retaliation. 3. Title VII and § 1981 compensation (race) and 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 sought to prove that his termination (later revoked) was motivated by race using the "direct method," i.e., evidence demonstrating the probability that race was a motivating factor in his termination. While there is some evidence in the record that the manager was hostile to blacks (a "Clebonics" sign, singling out a black manager as "too urban," telling group that "I'm being told that . . . I'm allowing my blacks to get away with murder"), there was no evidence that this was related to reason for termination (investigation that showed that employee violated work rules). There was no dispute that the employee engaged in a disputed transaction arguably prohibited by company guidelines and manager undertook series of interviews to get to the bottom of a possible violation. No evidence that employee did not have an opportunity to refute the allegations. 2. While informal complaints to manager of racial discrimination are a protected activity, there is insufficient evidence that the termination was motivated by those complaints. Management's discovery of the disputed transaction occurred in between employee's complaints of discrimination and termination, and breaks chain of causation. 3. New sale s compensation plan that was adopted after employee's return to business was applied to all current members of the group, regardless of race or prior complaints of discrimination.... Performance improvement plan alone is not adverse action.

Ellis v. CCA of Tennessee, No. 10-2768 (7th Cir. June 9, 2011). Panel: FLAUM, Williams, Herndon. Claims on Appeal: 1. Title VII and § 1981 harassment (race). 2 .Title VII and § 1981 discrimination and constructive termination (race). State law whistleblower 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. Eight plaintiffs - all African-American nurses working in a prison - alleged, among other things, that the hospital administration deliberately split up the black nurses into different shifts to limit contact between them. Attempting to give this a racial context, plaintiffs pointed to an excerpt of a management theory book found in the supervisor's office, Kenneth Blanchard, William Oncken, Jr., and Hal Burrows, THE ONE MINUTE MANAGER MEETS THE MONKEY (1989). Plaintiffs contended that the title and contents suggested that the manager looked upon employees as "monkeys." While such a writing could be used for racially hostile purposes, it is assumed that plaintiffs found the material subjectively hostile, it fails objective component-that is, what a reasonable person would find offensive or hostile. Comment "black as coal" or "black ass coal" not sufficiently severe. Presence of Confederate flag insignia in the workplace may also be deemed racially hostile, but that the two instances of co-workers wearing such images (seen by only some of the plaintiffs) also flunks the "objectively hostile" standard. 2. Shift change policy was not materially adverse because it caused no objective hardship. There-day suspension is materially adverse, but plaintiff failed to show that white employee would have been treated better. Totality of events was not sufficiently severe to warrant finding of constructive discharge.

Vance v. Ball State Univ., 646 F.3d 461, 112 FEP 582 (7th Cir. 2011). Panel: WOOD, Bauer, Sykes. 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. Hostile behavior by two supervisors not shown to be motivated by race. One putative supervisor lacked hiring/firing-type authority over plaintiff, as required under Seventh Circuit law to impute harassment directly to employer As to co-workers, employer undertook prompt corrective action with each complaint, investigating each complaint and disciplining co-workers for each incident when it was determined to be well-founded.2. Reassignment that amounted to a promotion and delivery of verbal warning for getting angry at a co-worker not materially adverse. Claim of loss of overtime opportunities fails because employee fails to identify any similarly situated individuals.

Moore v. Vital Products, Inc., 641 F.3d 253, 112 FEP 513 (7th Cir. 2011). Panel: KANNE, Easterbrook, Wood. Claims on Appeal:  1. Title VII harassment (race, sex). 2. Title VII termination (race, sex). 3. Title VII retaliation. State statutory 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. Harassment claim was untimely filed before EEOC. Charge was filed within 300 days of employee's final six days at work, but the plaintiff was not actually attending work during those six days.2. Employee failed to claim discriminatory termination in EEOC charge, nor was the claim like or reasonably related the harassment and retaliation claims that were in the charge.3. No evidence that employee engaged in a protected activity prior to be being terminated.

Lewis v. City of Chicago, 643 F.3d 201, 112 FEP 429 (7th Cir. 2011). Panel: EASTERBROOK, Bauer, Posner. Claims on Appeal:  Title VII disparate impact hiring. Disposition Below: Remand from U.S. Supreme Court [plaintiff]. Outcome on Appeal:  Affirmed [plaintiff]. Outcome on Appeal:  City's concession that use of cutoff score of 89 was not justified meant that every use of that list, where city selected at random from applicants above the cut-off score, created a new claim; no difference between contesting the list as a whole and contesting each use of the list. First use of list was untimely, though, and plaintiffs could not get relief as to that group.

Miller v. Illinois Dep't of Transportation, 643 F.3d 190, 24 A.D. Cases 1025 (7th Cir. 2011). Panel: HAMILTON, Posner, Rovner. Claims on Appeal:  1. ADA regarded-as discrimination. 2. ADA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds:  1. Plaintiff presented evidence that employer considered him substantially limited in the major life activity of working, despite that he had shown for four years that he could perform all essential tasks with accommodations. Applying 29 C.F.R. § 1630.2(j)(3)(ii), court holds that - even under the prior version of the ADA (before the liberalizing amendments of the ADAAA) - "it is not necessary for an employee to show that the employer consciously conducted the same sort of full statutory analysis that a trial judge or jury would conduct in a case of actual impairment. An employer who is irrationally and illegally overreacting to a perceived disability is unlikely to carry out consciously the full ADanalysis." Employer's subjective state of mind relevant. To prove such a state of mind, court analogizes to the deliberate indifference standard of the Eighth Amendment (Farmer v. Brennan, 511 U.S. 825 (1994)), and holds that such proof may be "addressed through circumstantial evidence, including reasonable inferences based on the evidence of the employer's perceptions of [worker's] impairments." Thus, according to the record, despite providing accommodations for four years, employer ordered plaintiff on non occupational disability leave and exaggerated modest effects of the acrophobia, even after two psychiatrists cleared him for work without any significant restrictions. Genuine issues of material fact concerning whether working above 25 feet was an essential function of the job (applying 29 C.F.R. § 1630.2(n)(3)), noting that not every member of the crew necessarily had to be able to perform all tasks.2. Sufficient evidence of pretext for a trial. Jury could find that the alleged "Thereat" against co-worker was not a genuine Thereat, "or that even if IDOT properly construed it as such, its decision to terminate Miller was a disingenuous overreaction to justify dismissal of an annoying employee who asserted his rights under the ADA." addition ally, there had been another IDOT employee who, after a genuinely violent outburst, was not fired.

EEOC v. Konica Minolta Business Solutions U.S.A. Inc., 639 F.3d 366, 112 FEP 97 (7th Cir. 2011). Panel: WOOD, Cudahy, Flaum. Claims on Appeal:  EEOC enforcement action. Disposition Below: Order enforcing subpoena [plaintiff]. Outcome on Appeal:  Affirmed [plaintiff]. Grounds: Agency subpoenaed documents from employer accused of concentrating its few African-American employees in a single location, a suburb outside of Chicago with a strong minority population. Supreme Court, in EEOC v. Shell Oil Co., 466 U.S. 54, 62 (1984) (citing 42 U.S.C. § 2000e-5(a)), set a low Threshold for investigation of a charge: "The agency must have 'a realistic expectation rather than an idle hope' that the information requested will advance its investigation of the charge," a "standard of relevance is broader than the standard embodied in the Federal Rule of Evidence 401." Scope of the charging party's complaint was not too narrow to support systemic discovery of the company's hiring practices. Employee complained about compensation and termination, as well as retaliation for making a complaint of discrimination to the company's human resources department. The employer contended that this charge did not implicate its hiring practices, but the pattern of hiring was still relevant.

Randall v. Rolls-Royce Corp., 637 F.3d 818, 111 FEP 818 (7th Cir. 2011). Panel: POSNER, Flaum, Sykes. Claims on Appeal: Title VII pay and promotion, and Equal Pay Act (sex). Disposition Below: Class certification denied and summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiffs failed to demonstrate that company's practice of setting salaries by classifying employees in job bands, then resetting in range by "prevailing market wages" discriminated on the basis of sex. Although analysis of salaries overall established average base pay for men overall was 5% higher than women, there was no evidence that disparity was caused by sex discrimination. Equal Pay Act claim fails because there is no evidence of male and female employees meeting the "equal work" requirement. Plaintiff's expert report that attributed base-pay difference to discrimination was unreliable (e.g., data set included workers hired after beginning of study period, which may have thrown off calculation of base pay). Defense expert corrected for jobs performed in each category, and established that women were promoted more quickly than men. Class certification properly denied. Representative plaintiffs' adequacy undermined by very weak claims, and as former managers they also have a potential conflict with female subordinates, for whom they may have set salaries. Also, case could not be certified under Rule 23(b)(2) because monetary relief, whether denominated equitable or legal, would dominate (would require 500 individual actions, one for each class member). Where damages are concerned, Rule 23(b)(3) is more suitable unless the recovery is mechanically computable. Judge did not err in denying leave for other plaintiffs to intervene to serve as class representatives under Rule 24 after the court already denied; the request came too late.

Groesch v. City of Springfield, 635 F.3d 1020, 111 FEP 1441 (7th Cir. 2011). Panel: HAMILTON, Bauer, Wood. Claims on Appeal: Title VII and §1983 compensation (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: White officers who were rehired at entry-level seniority and pay challenged city ordinance that allowed an African-American officer to be reinstated at his original level; ordinance made specific reference to needing "diversity" in the force. In the wake of the intervening (and retroactive) passage of the Lilly Ledbetter Pay Act of 2009, district court's grant of summary judgment based on superseded decision in Ledbetter required. Each paycheck that the white officers received that was at a rate lower than it would have been if they had been allowed to reenter at their prior seniority and pay creates a new claim. City cannot benefit from statutory exemption of seniority systems from Title VII, where in this instance it is not the policy that is being challenged, where it is the distribution of seniority that is being applied in a discriminatory fashion. Ledbetter Act applies equally to gender and race claims. Ledbetter Act also requires the Court to reexamine the circuit's pay-discrimination case law under § 1983. Claim commenced not with passage of special ordinance but with the city's failure two years later to abide by the plaintiffs' request to also get prior service credit. Prior litigation by officers' union challenging the ordinance was not entirely claim preclusive, where it did not end in a ruling on the merits of the claim (dismissed on statute of limitations grounds), but all claims prior to the entry of judgment in the state case are precluded.

Kotwica v. Rose Packing Co., 637 F.3d 744, 24 A.D. Cases 513 (7th Cir. 2011). Panel: CUDAHY, Rovner, Adelman. Claims on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to establish that she was a qualified person with a disability. She denied that a hip injury and surgery that followed actually impaired her ability to engage in the major life activity of working, and there was no "record of" impairment, as the work record established only that she had surgery, not that it impaired her ability to work other than briefly. There was also no evidence that the employee was "regarded as" disabled, because her lifting restrictions would at most prevent her from carrying out the duties of a general laborer. The record indicated that her employer believed she could carry out the duties of many other jobs even with her limitation. ADA does not require employer to reconfigure the original job to eliminate tasks that are beyond the employee's limitation. Employee also failed to establish that there were any vacancies available at the company for which she was qualified.

Lee v. Cook County, Ill., 635 F.3d 969, 111 FEP 1457 (7th Cir. 2011). Panel: EASTERBROOK, Cudahy, Posner. Claims on Appeal: Title VII promotions (race). Disposition Below: Dismissed for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Where original judge dismissed 12 individual Title VII claims for misjoinder, with leave to refile separately within 40 days, plaintiffs' options were to either refile as ordered or appeal. Original filing that was dismissed did not toll the limitations period. By the time the original judge ruled, the 300 days had already expired on the plaintiffs' right-to-sue letters. Cases were untimely in any event because lawyer waited until long after 40 days allowed by the order to refile, depriving employees of any equitable tolling. Noting in dicta that original judge erred in dismissing the case, as under Rule 20(a)(1)(B), multiple plaintiffs can join their actions in a single suit when "any question of law or fact common to all plaintiffs will arise in the action." A judge can sever, but not dismiss, misjoined claims (Rule 21), which results in the creation of new independent claims. Also, district court may not extend a statute of limitations on its own. Defendants did not waive the limitations defense because it was in its answer

Silverman v. Board of Education of the City of Chicago, 637 F.3d 729, 111 FEP 1461 (7th Cir. 2011). Panel: HAMILTON, Tinder, Murphy. Claims on Appeal: 1. Title VII termination (pregnancy). 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 abuse its discretion by excluding EEOC determination in the employee teacher's favor; such determinations, which require consideration of the evidence before the EEOC when it made its decision, "rarely add much" to the review de novo. Parties' stipulation as to plaintiff meeting her prima facie case did not preclude defendant from challenging her argument under the "direct method, "as to which there is no prima facie case. Comment that "I only took one week for maternity leave. But you, honey, should take as long as you want to" was not evidence of disapproval of employee taking leave. No claim that statement was mad sarcastically or facetiously. Employer's allegedly shifting testimony about when it first learned that the employee was pregnant was ambiguous, where employee herself testified about different dates. No suspicious timing where initial decision to renew employee's contract was made after employer learned about the employee's pregnancy. Under indirect method, plaintiff failed to rebut employer's legitimate, non-discriminatory reason (that budgetary concerns required elimination of position, employee was probationary, and she was the least effective teacher, i.e., her classes were consistently rowdy and inattentive). Plaintiff did not raise genuine issue of material fact with minor alleged inconsistencies in employer's reasons. Mere disagreement about the employer's assessment of her performance is insufficient to raise genuine issue of fact, and plaintiff failed to establish that the employer's reason had "no basis in fact." There is also undisputed fact that employer observed one of the employee's classes long before learning that she was pregnant. No inference can be drawn from the fact that the employer offered employee a new, arguably lesser position (which she accepted). 2. Under direct method of proof, employer's offer to rehire employee to teach autistic students was not an adverse action, because the employee was already terminated and school was not obliged to rehire. Negative evaluations might constitute adverse actions, and non-renewal of contract certainly does, but there was no evidence that her filing of EEOC complaint caused those events. Under indirect method, employer's assessment of plaintiff's performance which predated the EEOC charge was not shown to be unworthy of belief.

Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 111 FEP 865 (7th Cir. 2011). Panel: EASTERBROOK, Wood, Evans. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Where supervisor allegedly told employee about complaint of discrimination to "put it in writing," then fired him on the spot, this constitutes direct evidence of retaliation, even if supervisor denied actually looking at the paper. Plaintiff also may have been engaged in protected activity when he took pictures to gather evidence for his claim, even if employer claimed that there was a no-photography rule. Inference of causation proper based on timing alone. Anti-retaliation section does not have "vagueness" exception.

Schandelmeier-Bartels v. Chicago Park District, 634 F.3d 372, 111 FEP 739 (7th Cir. 2011). Panel: HAMILTON, Manion, Williams. Claims on Appeal: Title VII termination (reverse race). Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Reversed; jury verdict for plaintiff reinstated but with damages reduced from $200,000 to $30,000 [plaintiff]. Grounds: White employee witnessed an aunt physically disciplining a child at a camp where she worked, and was advised by her African-American supervisor that "this the way we discipline children in our culture." After employee reported incident to police, supervisor became angry and repeated the "culture " comment. The supervisor then sent a "last straw" memo to the park district human resources director complaining about the employee's performance and she was fired. Employee established at trial that the supervisor harbored a racial animus against the employee and, under a "cat's paw" theory. Jury received proper instruction on liability issue. Without regard to what the proper standard of stringency might be for causation on "cat's paw," jury could have found that only the supervisor's view mattered in final determination to terminate employee. decision maker was several levels above employee and had no independent opportunity to evaluate employee. There was negative information in the file about the employee prior to the incident that led to termination, but no evidence that the higher level supervisor had acted on it. Evidence of e-mails up to that time is equivocal at most. Another, higher-level supervisor involved in decision also was involved, but testimony established that the higher-level supervisor had spoken with employee's direct supervisor and jury could infer reliance on the latter's views. There was also no evidence of an independent investigation of the employee's performance. Court also affirms denial of motion for new trial. Issue of jury being confused by apparent inconsistency between jury instruction (which referred to a specific August 1, 2006 date) and the verdict for (which did not). Defendant did not timely object to inconsistency, and on plain error analysis, instruction did not mislead jury into ignoring parts of the record that occurred earlier than that date. Closing-argument comment by plaintiff's counsel that one of the defendant's exhibits might have been fabricated was objected to, which should have been sustained. But it is not reversible error where jury was otherwise admonished that lawyer argument was not evidence. Award of $200,000 compensatory damages was excessive; although plaintiff testified to being "disturbed," "devastated," and "upset," she found work 10 days later, and did not testify to enduring emotional or physical ill-effects; $30,000 is the most that the record could support.

Joren v. Napolitano, 633 F.3d 1144, 111 FEP 612 (7th Cir. 2011). Panel: Per curiam [Rovner, Evans, Williams]. Claims on Appeal: Rehabilitation Act termination. Disposition Below: Dismissed for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Aviation and Transportation Security Act, which applies to airport screeners, by its terms precludes the application of the Rehabilitation Act to screeners under 49 U.S.C. § 44935(f).

Sutherland v. Wal-Mart Stores, Inc., 632 F.3d 990, 111 FEP 495 (7th Cir. 2011). Panel: KANNE, Cudahy, Flaum. Claims on Appeal: Title VII harassment (sex). State tort claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine issue of material fact that employer could not be held liable for co-worker harassment, where prior to the assault, the last complaint against the harasser was years prior, with no behavior rising to harassment after two verbal warnings. Employer did not delay unreasonably; it commenced investigation on the day that she complained, reprimanded the harasser and separated them.

Czarniecki v. City of Chicago, No. 09-1485 (7th Cir. Jan. 21, 2011). Panel: HAMILTON, Bauer, Flaum. Claims on Appeal: Title VII termination (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine issue of material fact that the plaintiff's first lawsuit under 42 U.S.C. § 1983, which was dismissed without prejudice but was abandoned by the claimant, was preclusive of claim under Title VII. Although employee did not have right-to-sue letter for Title VII when he first sued under section 1983, employee could have delayed commencing first suit or sought a stay while awaiting the right-to-sue.

Leitgen v. Franciscan Skemp Healthcare, Inc., No. 09-1496 (7th Cir. Jan. 13, 2011). Panel: ROVNER, Sykes, Tinder. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee presented genuine issue of material of fact about whether she was engaged in a protected activity, i.e., she had a good-faith, objectively reasonable belief that she was complaining about gender discrimination in compensation where she challenged how hospital compensated doctors for delivering babies. Summary judgment affirmed on the ground that plaintiff failed to establish causal relationship between her meeting secretary of the hospital compensation committee and decision to terminate her. While there was evidence that the hospital began to prepare for the employee's termination within days of the meeting, the plaintiff had been complaining about the practice for years before that, inside and outside of her department, without adverse action being taken against her. Also, lead-up actions to the termination decision (counseling and discipline for abuse of staff) occurred long before her meeting with the secretary. Although hospital did not abide by it usual practice of furnishing written notices, plaintiff did not deny that she had been repeatedly warned orally about her performance.

DeTata v. Rollpoint Pkg. Prod., No. 10-1596 (7th Cir. Jan. 12, 2011)). Panel: WOOD, Easterbrook, Evans. Claims on Appeal: Title VII retaliation and harassment (sex). Disposition Below: Dismissed for failure to state a claim, FRCP 12(b)(6) [defendant] Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in holding that employee failed to file complaint within 90 days of receipt of right-to-sue letter. Although plaintiff became aware because of a phone call that the letter was misdelivered by the EEOC to another person (who was listed in the file as her representative), phone call did not trigger 90-day period; it was not written notice under the statute, and even is phone call could be held to commence limitations, this phone call failed under 29 C.F.R. § 1601.28(e) to warn plaintiff of 90-day period, advise her of her right to sue or provide a copy of the charge. Mailing to alleged representative also failed to trigger period, where it was contested whether that individual was the plaintiff's legal representative and there was no evidence that it was ever delivered to that representative in any case (it was returned undelivered).

Ames v. Home Depot Inc., No. 09-4151 (7th Cir. Jan. 6, 2011)). Panel: MANION, Tinder, Hamilton. Claims on Appeal: ADA termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No evidence that plaintiff's alcoholism substantially limited her in any major life activity. Moreover, there was no evidence of pretext (she was terminated for coming to work under the influence of alcohol) or failure to accommodate (she was allowed to adjust schedule to attend AA meetings).

Stinnett v. City of Chicago, 630 F.3d 645, 111 F.3d 167 (7th Cir. 2011). Panel: POSNER, Tinder, Hamilton. Claims on Appeal: Title VII promotion (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although as a general rule white Ambulance Commanders who were ahead of plaintiff on promotion list were not "similarly situated," plaintiff could make argument comparing himself to the two closest Ambulance Commanders on the list, where plaintiff challenges decision to cut off hiring between them and plaintiff; challenge is to the cut-off, where all There were eligible for promotion. City proffered non-discriminatory reason (list was abandoned at that point because it became obsolete). Fact that list was abandoned at time black candidate would have been promoted attributable to chance, where there was no evidence that either list was compiled in a racially-biased fashion and Commissioner who made decisions did not know race of persons on list.

EEOC v. AutoZone, Inc., 630 F.3d 635, 23 A.D. Cases 1841 (7th Cir. 2010). Panel: HAMILTON, Manion, Sykes. Claims on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Agency presented genuine issue of material fact about whether employee was disabled. There was evidence that back injury limited major life activity of caring for oneself (need assistance brushing hair, bathing, brushing teeth and dressing. Any ambiguity about when the disability began must be construed in favor of the non-movant. Under 29 U.S.C. § 1630.2(j)(1) definition of "substantially limited," the duration of the condition was episodic but permanent, occurring four to five times a week, which a jury could find substantially limiting. Medical testimony not necessary to prove existence of disability or defeat summary judgment, where employee and spouse could testify from personal knowledge about limitations, i.e., specific activities and instances that caused pain.

Opp v. Office of the State's Attorney, 630 F.3d 616, 111 FEP 1 (7th Cir. 2010). Panel: BAUER, Sykes, Hamilton. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assistant state's attorneys are appointees on the policymaking level, and thus excluded from the ADEA definition of "employee" at 29 U.S.C. § 630(f). Assistants are, by statute, surrogates for the state's attorney who make policy decisions, e.g., to prosecute or dismiss a case.

Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 110 FEP 1685 (7th Cir. 2010). Panel: KANNE, Posner, Williams. Claims on Appeal: ADEA denial of transfer. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee presented no genuine issue of material fact on age bias, where he presented no evidence rebutting explanation that position did not become available as anticipated. Apparent conflict of deposition testimony on the scheduled departure of the person holding the job resolved by testimony that employee had verbally informed superiors of intended retirement but the agency was sloppy in not following up the incumbent employee's plans. Employee proceeded only on "direct method," and waived "indirect method" on appeal.

Grigsby v. LaHood, 110 FEP 1681 (7th Cir. Dec. 6, 2010). Panel: KANNE, Posner, Wood. Claims on Appeal: Title VII hiring (race, national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Evidence that interviewing supervisor became uneasy after plaintiff said that he was Native American does not constitute direct evidence of discrimination. Under indirect method, employee failed to make out prima facie case because he lacked necessary certification for the various vacancies available, or that the positions were filled by persons with similar or lower qualifications outside of his protected group. Alternatively, lack of necessary certification was legitimate, non-discriminatory reason. No evidence that the certification requirement was invented after the fact. No direct or circumstantial evidence of racial motive on which to base a mixed-motive argument

Naik v. Boehringer Ingelheim Pharmaceuticals, Inc., 110 FEP 1443 (7th Cir. Nov. 22, 2010). Panel: EVANS, Cudahy, Rovner. Claims on Appeal: Title VII (national origin) and ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to meet legitimate expectations or establish that similarly situated employees were treated better were plaintiff was terminated for misconduct (i.e., falsifying sales call records). Alternatively, employer had same reason as legitimate, non-discriminatory reason for termination.

Montgomery v. American Airlines, Inc., 626 F.3d 382, 110 FEP 1345 (7th Cir. 2010). Panel: KANNE, Easterbook, Bauer. Claims on Appeal: 1. Title VII and §1981 harassment (race). 2. Title VII and §1981 demotion (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant] 2. Affirmed [defendant]. Grounds: 1. For purposes of imputing liability to employer, only allegation that a supervisor participated in the harassment was a crew chief, whom court decides does not have supervisory authority. As for co-worker harassment, employee failed to make formal complaints to supervisors identified in company's anti-harassment policy. Verbal complaints were of general unfairness and did not put employer on notice about specific racial issues. No evidence of constructive knowledge. When plaintiff finally did complain, prompt action was taken and harassment came to an end. 2. Evidence that plaintiff was only African-American on site, and the only employee who had to pass tool inspection and qualification tests, do not support "direct method" of proof. Using indirect method, employee fails to make out prima facia case because he does not identify similarly situated employees (one was governed by a different supervisor who relaxed rule, one benefitted from a revised rule, and one did not get to skip test at all). Allegation that test was administered unfairly to him unsupported by the record; evidence overwhelmingly was that the plaintiff simply failed the test.

Norman-Nunnery v. Madison Area Technical College, 625 F.3d 422, 110 FEP 1121 (7th Cir. 2010). Panel: ROVNER, Easterbrook, Bauer. Claims on Appeal: 1. Title VII hiring (race, racial association). 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 spoliation inference on missing application papers where papers disappeared before dispute commenced, there was no evidence that documents were deliberately lost, and no evidence of bad faith. While there was a genuine issue of material fact that decision-makers knew race of employee, plaintiff fails to present a genuine issue of material fact on pretext. No direct-method proof, e.g., no evidence of bad faith in losing documents, statistical evidence of disparity in hiring insignificant. Under indirect method, employee presented no genuine issue of material fact in using numerical evaluations 2. No evidence that she was treated less favorably because of her marriage to white husband.

Thompson v. Memorial Hospital of Carbondale, 625 F.3d 394, 110 FEP 1129 (7th Cir. 2010). Panel: WILLIAMS, Kanne, Evans. Claims on Appeal: 1. § 1981 disciplinary probation. 2. Title VII harassment and constructive discharge (race). Disposition Below: 1. Judgment entered after a jury trial ($500,000) [plaintiff]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. New arguments that plaintiff lacked contractual relationship with defendant and did not suffer materially adverse employment action waived when not presented to jury. Comments that were rejected as basis of harassment claim still admissible as evidence of racial intent. Defendant waived opportunity for making limiting instruction. Employer waived opportunity to make cat's-paw instruction. At any event there was sufficient evidence for jury to find that employee he made racial utterance also supplied employer with false information and wrote the report that it used to demote him. Other racial remark by a different employee was admissible for impeachment of credibility, FRE806. Jury could find that reimposition of disciplinary period for employee, leading to unpleasant work duties, could be materially adverse. Substantial award for emotional distress could be supported by plaintiff and his counsellor, including evidence of mental disorder (depression, anxiety), but remittitur from $500,000 to $250,000 appropriate. 2. A few racially insulting remarks over years not severe or pervasive, nor sufficiently unbearable as to constitute constructive discharge.

Finch v. Peterson, 622 F.3d 725, 110 FEP 260 (7th Cir. 2010). Panel: SYKES, Flaum, Williams. Claims on Appeal: Title VII, §1981 and §1983 promotion (reverse race). Disposition Below: Qualified immunity denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: 1978 consent decree did not confer qualified immunity , because decree did not direct officials to take race into account in promotion decisions, and indeed directed just the opposite.

Goodman v. National Security Agency, Inc., 621 F.3d 651, 110 FEP 134 (7th Cir. 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., 621 F.3d 673, 110 FEP 129 (7th Cir. 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., 621 F.3d 589, 110 FEP 138 (7th Cir. 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., 619 F.3d 735, 110 FEP 147 (7th Cir. 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, 619 F.3d 741, 110 FEP 143 (7th Cir. 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: ADE 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., 619 F.3d 683, 110 FEP 1 (7th Cir. 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., 619 F.3d 697 (7th Cir. 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, 618 F.3d 688, 109 FEP 1831 (7th Cir. 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. Reversed [plaintiff]. 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., 615 F.3d 873, 109 FEP 1718 (7th Cir. 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, 612 F.3d 924, 109 FEP 1510 (7th Cir. 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, 612 F.3d 908, 109 FEP 1377 (7th Cir. 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., 613 F.3d 665, 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 line 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: AD 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. AD 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. ADE 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: LawareNCE, 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: LawareNCE, 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. AD 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 su

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