Actionable Claims
42 U.S.C. § 1983, 28 U.S.C. § 1367, Jones and Pressley v. Patrick and Associates Detective Agency, Inc (7th Cir. 2006) Individual liability; Farrell v. Butler University (7th Cir. 2005) Finding of genuine issue of material fact, disparate treatment, disparate impact and adverse employment actions; Walker v. Abbott Laboratories (7th Cir. 2003) At will employment claim under §1981; Washington v. Illinois Department of Revenue (7th Cir. 2005) Discrimination in terms and conditions of employment and adverse employment action; Maalik v. International Union of Elevator Constructors, Local 2 (7th Cir. 2006) and Whittaker v. Northern Illinois University et al. (7th Cir. 2005) Hostile work environment and retaliation; and Ineichen v. Ameritech (7th Cir. 2005) Similarly situated individuals. All of which fall under Title VII, ADEA, § 1331, § 1367, § 1981, and § 1983.
Standard of Review
The law does not require a plaintiff to plead any legal theories, see Thomson v. Washington, 362 F.3d 969, 970-71 (7th Cir. 2004), and particularly since he filed his complaint pro se, he should not be held to the one incorrect theory he did name. Instead, the court should ask whether any set of facts consistent with the complaint would give him a right to recover, no matter what the legal theory. See FED. R. CIV. P. 8(a); Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001).
Whether plaintiff can establish any set of facts consistent with the complaint, which would give him a right to recover, the plaintiff needs to have discovery. Litigants are entitled to discovery before being put to their proof, and treating the allegations of the complaint as a statement of the party's proof leads to windy complaints and defeats the function of Rule 8. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Nance v. Vieregge, 147 F.3d at 590 (7th Cir. 1998); Cook v. Winfrey, 141 F.3d 322 (7th Cir. 1998); Albiero v. Kankakee, 122 F.3d 417, 419 (7th Cir. 1997); Early v. Bankers Life & Casualty Co., 959 F.2d 75, 78-79 (7th Cir. 1992).
A Title VII plaintiff need not set forth allegations of a prima facie case in the complaint. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002). Instead, a plaintiff alleging discrimination in violation of Title VII must only set forth in the complaint “a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. (quoting Fed. R. Civ. P. 8(a)). Swierkiewicz governs complaints in § 1981 discrimination actions. See, e.g., Maduka v. Sunrise Hospital (2004) Nonetheless, the dismissal of a complaint for failure to state a claim is proper if “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); see also Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 765 (3d Cir. 2004).
"All pleadings shall be so construed as to do substantial justice." Fed. R. Civ. P. 8(f). This objective is defeated if excess length becomes a fatal misstep. Prolixity is a bane of the legal profession but a poor ground for rejecting potentially meritorious claims. Fat in a complaint can be ignored, confusion or ambiguity dealt with by means other than dismissal. It takes a lot worse than using 12 pages to set out a claim that could have been stated in 6 pages to justify a dismissal under Rule 8(a). See In re Westinghouse Securities Litigation, 90 F.3d 696, 702-03 (3d Cir. 1996) (600 paragraphs spanning 240 pages); Kuehl v. FDIC, 8 F.3d 905, 905 (1st Cir. 1993) (358 paragraphs, containing 36 repetitive claims, in 43 pages); Michaelis v. Nebraska State Bar Association, 717 F.2d 437, 439 (8th Cir. 1983) (144 paragraphs in 98 pages).
Twelve pages of gibberish is no better than 240, so it may be appropriate to dismiss a short complaint under Rule 8 because it is not "plain". It is even possible to justify dismissal with prejudice if the complaint remains incomprehensible after opportunity to amend. See Charles Alan Wright & Arthur R. Miller, 5 Federal Practice and Procedure sec.1216 (2d ed. 1990) (collecting cases).
Rule 8(a) requires only a “short and plain statement of the claim that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000). The Supreme Court has cautioned that “the Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of the pleading is to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U.S. 41, 48 (1957); see also Luckett v. Rent-A-Center, Inc., 53 F.3d 871, 873 (7th Cir. 1995) (“District judges must heed the message of Rule 8: the pleading stage is not the occasion for technicalities.”).
Wednesday, September 06, 2006
Mixed-Motive Theory, Reverse Discrimination, Similarly Situated Individuals
Illinois recognizes the mixed-motive theory of discharge in retaliatory discrimination cases, a theory which shifts the burden of proof to the employer. Both federal and state, clearly indicates that Illinois does recognize the mixed-motive theory. Moreover, shifting the burden of proof to the employer was not only proper but one of this theory's most unique tenets.
The Illinois Supreme Court analyzed employment discrimination causes brought under the Illinois Human Rights Act according to the "framework set forth in United States Supreme Court decisions addressing claims under Title VII of the Civil Rights Act of 1964." Lalvani v. Illinois Human Rights Comm'n, No. 1-99-3283, slip op. at 26 (July 31, 2001) (our Supreme Court, in Zaderaka, 131 Ill. 2d at 178, adopted the Supreme Court's method of analysis); Livingston, 302 Ill. App. 3d at 152. The principal case laying down this framework is Price Waterhouse v. Hopkins, 490 U.S. 228, 260-61, 104 L. Ed. 2d 268, 295, 109 S. Ct. 1775, 1796 (1989) (O'Connor, J., concurring).
Price Waterhouse originally was a Title VII action with the plaintiff-employee offering specific evidence that gender animus was a motivating, and forbidden, reason in the defendant-employer's decision to terminate her employment. It was in this case that the Court recognized two separate and entirely different methods available to analyze retaliatory discharge cases. The more common method is the three-part pretext analysis as established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).
Under this analysis the plaintiff-employee must first establish a prima facie case, a modest burden since he may do so using indirect evidence. McDonnell Douglas, 411 U.S. at 802, 36 L. Ed. 2d at 677, 93 S. Ct. at 1824. Second, the burden of production, but not of persuasion, shifts to the defendant-employer to articulate, not prove, a legitimate, nondiscriminatory reason for discharge. McDonnell Douglas, 411 U.S. at 802, 36 L. Ed. 2d at 678, 93 S. Ct. at 1824. If the defendant succeeds, the plaintiff must then show that the defendant's reason was merely a pretext or sham. McDonnell Douglas, 411 U.S. at 804, 36 L. Ed. 2d at 679, 93 S. Ct. at 1825.
To this end, the plaintiff retains the ultimate burden of persuasion at all times under the pretext method. Fernandes v. Costa Brothers Masonry, Inc., 199 F.3d 572, 581 (1st Cir. 1999).
The Court recognized an equally effective method, called the mixed-motive theory, which a plaintiff may use in trying to convince the trier of fact that his employer used an impermissible criterion in discharging him. Under this two-part analysis, the plaintiff must first show, through direct proof, that the illegitimate factor had a motivating or substantial role in the employment decision. Price Waterhouse, 490 U.S. at 244, 104 L. Ed. 2d at 284, 109 S. Ct. at 1787. The plaintiff who accomplishes this will prevail, unless his employer can prove that it would have reached the same decision (i.e., still would have fired the plaintiff) had it not considered the impermissible factor. Price Waterhouse, 490 U.S. at 244-45, 252, 104 L. Ed. 2d at 284, 289, 109 S. Ct. at 1787-88, 1792 (legitimate reason "was present" at time of making decision and, "standing alone, would have induced [employer] to make the same decision").
The mixed-motive method differs from the pretext analysis in several respects. Initially, the mixed-motive method can be more difficult for the plaintiff to use. Fernandes, 199 F.3d at 580 (mixed-motive method is restricted to cases where the employee "can demonstrate with a high degree of assurance" that both legitimate and illegitimate reasons were involved); Tyler, 958 F.2d at 1180-81 (burden on the plaintiff is higher in mixed-method approach than pretext approach). Employment discrimination can oftentimes exert itself in subtle ways. Fernandes, 199 F.3d at 580. Yet to use the mixed-motive method, the plaintiff must show " 'direct evidence that decision makers placed substantial negative reliance on an illegitimate criterion in reaching their decision.' " Fernandes, 199 F.3d at 580, quoting Price Waterhouse, 490 U.S. at 277, 104 L. Ed. 2d at 305, 109 S. Ct. at 1805 (the availability of the mixed-motive analysis depends on quality of the plaintiff's evidence).
However, if the plaintiff can present this "more focused proof of discrimination," his cause becomes easier, as he sheds the burden he would otherwise retain under the pretext approach. Tyler, 958 F.2d at 1185-86. And this is why the approach used has an important effect: in the mixed-motive analysis, the burden of persuasion completely shifts away from the plaintiff and to the employer to prove it still would have fired the plaintiff absent consideration of the impermissible motive. Thomas v. National Football League Players Ass'n, 131 F.3d 198, 203 (D.C. Cir. 1997) (this is both a shifting of the ultimate burden of persuasion and the employer's affirmative defense).
Moreover, whereas there is only either lawful or unlawful motivation for discharge in pretext cases, there can be both types in mixed-motive cases. Ostrowski v. Atlantic Mutual Insurance Cos., 968 F.2d 171, 185 (1992). Therefore, the plaintiff is not obligated to show that a legitimate reason was the true reason for discharge or that the employer used a pretext. Ostrowski, 968 F.2d at 185. All he must show is that the employer considered some unlawful motive in making its decision.
Illinois state courts, and most critically our very bench, have clearly and consistently recognized what the federal courts have, that the mixed-motive method of analyzing and deciding adverse employment claims is alive and well. Lalvani, slip op. at 26-27 (the "burden of proof is different if the plaintiff proceeds under the direct-evidence approach"); Livingston, 302 Ill. App. 3d at 152 (recognizing two ways an employee may prove discrimination: through presenting direct or indirect evidence); Kenall, 152 Ill. App. 3d at 701 (same); Southern Illinois Clinic, Ltd. v. Human Rights Comm'n, 274 Ill. App. 3d 840, 847 (1995) (same). We have chosen to call this method by an alternative name at times--the dual-motive theory--but its tenets are still the same. City of Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d. 335, 347 (1989); Board of Education, 247 Ill. App. 3d at 460.
And as mentioned above, we too have noted that while the pretext method is more common, the mixed-motive method is no less viable. Southern Illinois Clinic, 274 Ill. App. 3d at 847.Just as in federal law, we have defined mixed-motive cases as those where the employer relies on both legitimate and illegitimate reasons for the employee's discharge. City of Burbank, 128 Ill. 2d at 346-47 (case where the employer advances and relied upon legitimate reasons for discharge is analyzed under mixed-motive theory). The plaintiff-employee must present direct evidence that the defendant-employer considered an illegitimate factor, among others, in deciding to fire him. Board of Education, 247 Ill. App. 3d at 460-61 (the employee's evidence must go beyond inference of discrimination to establish "clear nexus" between impermissible factor and discharge). Once the employee establishes this, the burden of proof then shifts to the employer to show it would still have fired the employee even if it had not considered the illegitimate factor. City of Burbank, 128 Ill. 2d at 346-47; Board of Education, 247 Ill. App. 3d at 461.
The Illinois Supreme Court has set the foundation for one very important concept in the mixed-motive analysis. Again, the employer's motivation for firing the employee is the central issue in these cases. Motive is a question of fact. City of Burbank, 128 Ill. 2d at 345. EEOC v. Pipefitters Ass’n Local 597, 334 F.3d 656, 658 (7th Cir. 2003). To do so, plaintiff must show that (1) he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive working environment that seriously affected his psychological well-being; and (4) there is a basis for employer liability. Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir. 1998).
Reverse Discrimination and Similarly Situated Individuals
In Ineichen v. Ameritech (7th Cir. 2005) this court reports reverse discrimination claims arise where the decisionmakers are of the same sex or race as the alleged victim, see, e.g., Preston v. Wis. Health Fund, 397 F.3d 539 (7th Cir. 2005) The court explained the rationale for the heightened standard in Phelan v. City of Chicago, 347 F.3d 679, 684-85 (7th Cir. 2003) and Mills v. Health Care Service Corp., 171 F.3d 450, 455-57 (7th Cir. 1999): “It is not surprising when women discriminate in favor of women any more than it is surprising when men discriminate in favor of men. But it is surprising, in many though not all cases, when men discriminate against men in favor of women.” Id. at 542 All though Preston involved reverse sex discrimination (male discriminating against male), the same rationale applies equally in other reverse discrimination cases (female discriminating against female, white against white, black against black). Preston also made clear, however, that the examples provided are not exclusive and that “the list is not a closed one.”
To satisfy the “similarly situated” prong of the prima facie case, an employee must be “directly comparable in all material respects.” Sartor v. Spherion Corp., 388 F.3d 275, 279 (7th Cir. 2004) This requires the plaintiff to show not only that the employees reported to the same supervisor, engaged in the same conduct, and had the same qualifications, but also show that there were no “differentiating or mitigating circumstances as would distinguish . . . the employer’s treatment of them.” Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir.
2000).
The Illinois Supreme Court analyzed employment discrimination causes brought under the Illinois Human Rights Act according to the "framework set forth in United States Supreme Court decisions addressing claims under Title VII of the Civil Rights Act of 1964." Lalvani v. Illinois Human Rights Comm'n, No. 1-99-3283, slip op. at 26 (July 31, 2001) (our Supreme Court, in Zaderaka, 131 Ill. 2d at 178, adopted the Supreme Court's method of analysis); Livingston, 302 Ill. App. 3d at 152. The principal case laying down this framework is Price Waterhouse v. Hopkins, 490 U.S. 228, 260-61, 104 L. Ed. 2d 268, 295, 109 S. Ct. 1775, 1796 (1989) (O'Connor, J., concurring).
Price Waterhouse originally was a Title VII action with the plaintiff-employee offering specific evidence that gender animus was a motivating, and forbidden, reason in the defendant-employer's decision to terminate her employment. It was in this case that the Court recognized two separate and entirely different methods available to analyze retaliatory discharge cases. The more common method is the three-part pretext analysis as established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).
Under this analysis the plaintiff-employee must first establish a prima facie case, a modest burden since he may do so using indirect evidence. McDonnell Douglas, 411 U.S. at 802, 36 L. Ed. 2d at 677, 93 S. Ct. at 1824. Second, the burden of production, but not of persuasion, shifts to the defendant-employer to articulate, not prove, a legitimate, nondiscriminatory reason for discharge. McDonnell Douglas, 411 U.S. at 802, 36 L. Ed. 2d at 678, 93 S. Ct. at 1824. If the defendant succeeds, the plaintiff must then show that the defendant's reason was merely a pretext or sham. McDonnell Douglas, 411 U.S. at 804, 36 L. Ed. 2d at 679, 93 S. Ct. at 1825.
To this end, the plaintiff retains the ultimate burden of persuasion at all times under the pretext method. Fernandes v. Costa Brothers Masonry, Inc., 199 F.3d 572, 581 (1st Cir. 1999).
The Court recognized an equally effective method, called the mixed-motive theory, which a plaintiff may use in trying to convince the trier of fact that his employer used an impermissible criterion in discharging him. Under this two-part analysis, the plaintiff must first show, through direct proof, that the illegitimate factor had a motivating or substantial role in the employment decision. Price Waterhouse, 490 U.S. at 244, 104 L. Ed. 2d at 284, 109 S. Ct. at 1787. The plaintiff who accomplishes this will prevail, unless his employer can prove that it would have reached the same decision (i.e., still would have fired the plaintiff) had it not considered the impermissible factor. Price Waterhouse, 490 U.S. at 244-45, 252, 104 L. Ed. 2d at 284, 289, 109 S. Ct. at 1787-88, 1792 (legitimate reason "was present" at time of making decision and, "standing alone, would have induced [employer] to make the same decision").
The mixed-motive method differs from the pretext analysis in several respects. Initially, the mixed-motive method can be more difficult for the plaintiff to use. Fernandes, 199 F.3d at 580 (mixed-motive method is restricted to cases where the employee "can demonstrate with a high degree of assurance" that both legitimate and illegitimate reasons were involved); Tyler, 958 F.2d at 1180-81 (burden on the plaintiff is higher in mixed-method approach than pretext approach). Employment discrimination can oftentimes exert itself in subtle ways. Fernandes, 199 F.3d at 580. Yet to use the mixed-motive method, the plaintiff must show " 'direct evidence that decision makers placed substantial negative reliance on an illegitimate criterion in reaching their decision.' " Fernandes, 199 F.3d at 580, quoting Price Waterhouse, 490 U.S. at 277, 104 L. Ed. 2d at 305, 109 S. Ct. at 1805 (the availability of the mixed-motive analysis depends on quality of the plaintiff's evidence).
However, if the plaintiff can present this "more focused proof of discrimination," his cause becomes easier, as he sheds the burden he would otherwise retain under the pretext approach. Tyler, 958 F.2d at 1185-86. And this is why the approach used has an important effect: in the mixed-motive analysis, the burden of persuasion completely shifts away from the plaintiff and to the employer to prove it still would have fired the plaintiff absent consideration of the impermissible motive. Thomas v. National Football League Players Ass'n, 131 F.3d 198, 203 (D.C. Cir. 1997) (this is both a shifting of the ultimate burden of persuasion and the employer's affirmative defense).
Moreover, whereas there is only either lawful or unlawful motivation for discharge in pretext cases, there can be both types in mixed-motive cases. Ostrowski v. Atlantic Mutual Insurance Cos., 968 F.2d 171, 185 (1992). Therefore, the plaintiff is not obligated to show that a legitimate reason was the true reason for discharge or that the employer used a pretext. Ostrowski, 968 F.2d at 185. All he must show is that the employer considered some unlawful motive in making its decision.
Illinois state courts, and most critically our very bench, have clearly and consistently recognized what the federal courts have, that the mixed-motive method of analyzing and deciding adverse employment claims is alive and well. Lalvani, slip op. at 26-27 (the "burden of proof is different if the plaintiff proceeds under the direct-evidence approach"); Livingston, 302 Ill. App. 3d at 152 (recognizing two ways an employee may prove discrimination: through presenting direct or indirect evidence); Kenall, 152 Ill. App. 3d at 701 (same); Southern Illinois Clinic, Ltd. v. Human Rights Comm'n, 274 Ill. App. 3d 840, 847 (1995) (same). We have chosen to call this method by an alternative name at times--the dual-motive theory--but its tenets are still the same. City of Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d. 335, 347 (1989); Board of Education, 247 Ill. App. 3d at 460.
And as mentioned above, we too have noted that while the pretext method is more common, the mixed-motive method is no less viable. Southern Illinois Clinic, 274 Ill. App. 3d at 847.Just as in federal law, we have defined mixed-motive cases as those where the employer relies on both legitimate and illegitimate reasons for the employee's discharge. City of Burbank, 128 Ill. 2d at 346-47 (case where the employer advances and relied upon legitimate reasons for discharge is analyzed under mixed-motive theory). The plaintiff-employee must present direct evidence that the defendant-employer considered an illegitimate factor, among others, in deciding to fire him. Board of Education, 247 Ill. App. 3d at 460-61 (the employee's evidence must go beyond inference of discrimination to establish "clear nexus" between impermissible factor and discharge). Once the employee establishes this, the burden of proof then shifts to the employer to show it would still have fired the employee even if it had not considered the illegitimate factor. City of Burbank, 128 Ill. 2d at 346-47; Board of Education, 247 Ill. App. 3d at 461.
The Illinois Supreme Court has set the foundation for one very important concept in the mixed-motive analysis. Again, the employer's motivation for firing the employee is the central issue in these cases. Motive is a question of fact. City of Burbank, 128 Ill. 2d at 345. EEOC v. Pipefitters Ass’n Local 597, 334 F.3d 656, 658 (7th Cir. 2003). To do so, plaintiff must show that (1) he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive working environment that seriously affected his psychological well-being; and (4) there is a basis for employer liability. Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir. 1998).
Reverse Discrimination and Similarly Situated Individuals
In Ineichen v. Ameritech (7th Cir. 2005) this court reports reverse discrimination claims arise where the decisionmakers are of the same sex or race as the alleged victim, see, e.g., Preston v. Wis. Health Fund, 397 F.3d 539 (7th Cir. 2005) The court explained the rationale for the heightened standard in Phelan v. City of Chicago, 347 F.3d 679, 684-85 (7th Cir. 2003) and Mills v. Health Care Service Corp., 171 F.3d 450, 455-57 (7th Cir. 1999): “It is not surprising when women discriminate in favor of women any more than it is surprising when men discriminate in favor of men. But it is surprising, in many though not all cases, when men discriminate against men in favor of women.” Id. at 542 All though Preston involved reverse sex discrimination (male discriminating against male), the same rationale applies equally in other reverse discrimination cases (female discriminating against female, white against white, black against black). Preston also made clear, however, that the examples provided are not exclusive and that “the list is not a closed one.”
To satisfy the “similarly situated” prong of the prima facie case, an employee must be “directly comparable in all material respects.” Sartor v. Spherion Corp., 388 F.3d 275, 279 (7th Cir. 2004) This requires the plaintiff to show not only that the employees reported to the same supervisor, engaged in the same conduct, and had the same qualifications, but also show that there were no “differentiating or mitigating circumstances as would distinguish . . . the employer’s treatment of them.” Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir.
2000).
Hostile Work Environment, Retaliation, Individual Liability
Hostile work environment, Retaliation, Individual Liability
The United States Supreme Court, in National R. R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2071-73 (2002), reports hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 348-349 (3d ed. 1996) (hereinafter Lindemann) ("The repeated nature of the harassment or its intensity constitutes evidence that management knew or should have known of its existence").
The "unlawful employment practice" therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) ("As we pointed out in Meritor [Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986),] `mere utterance of an ... epithet which engenders offensive feelings in a employee,' ibid. (internal quotation marks omitted) does not sufficiently affect the conditions of employment to implicate Title VII"). Such claims are based on the cumulative affect of individual acts.
The court goes on to report "We have repeatedly made clear that although [Title VII] mentions specific employment decisions with immediate consequences, the scope of the prohibition `is not limited to "economic" or "tangible" discrimination,' " Harris, [510 U. S., at, 21] (quoting Meritor Savings Bank, FSB v. Vinson, [477 U. S.,] at 64), and that it covers more than `terms' and `conditions' in the narrow contractual sense." Faragher v. Boca Raton, 524 U.S. 775, 786 (1998) (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998)).
As the Court stated in Harris, "the phrase `terms, conditions, or privileges of employment' [of 42 U. S. C. §2000e-2(a)(1)] evinces a congressional intent `to strike at the entire spectrum of disparate treatment of men and women' in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment." 510 U.S. at 21 (some internal quotation marks omitted) (quoting Meritor, 477 U.S. at 64, in turn quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, n. 13 (1978)). "Workplace conduct is not measured in isolation .... "Clark County School Dist. v. Breeden, 532 U.S. 268, 270 (2001) (per curiam).
Thus, "when the workplace is permeated with `discriminatory intimidation, ridicule, and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Harris, 510 U.S. at 21 (internal citations omitted).
The court goes on to say, “In determining whether an actionable hostile work environment claim exists, we look to "all the circumstances," including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23. " A hostile work environment claim is comprised of a series of separate acts that collectively constitute one "unlawful employment practice." 42 U. S. C. §2000e-5(e)(1).
In Whittaker v. Northern Illinois University et al. (7th Cir. 2005) this court reports pursuant to Title VII, “it shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Accordingly, this statute prohibits employers from “requiring people to work in a discriminatorily hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Shanoff v. Ill. Dep’t of Human Servs., 258 F.3d 696, 701 (7th Cir. 2001).
To prevail on his hostile work environment claim, plaintiff must establish that: “(1) he was subjected to unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; (2) the conduct was severe or pervasive enough to create a hostile work environment; (3) the conduct was directed at him because of his sex; and (4) there is a basis for employer liability.” Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 505 (7th Cir. 2004).
To prove “hostile work environment,” the alleged harassment must be “both subjectively and objectively so severe or pervasive as to alter the conditions of her employment and create an abusive working environment.” Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 975 (7th
Cir. 2004). “In determining whether the environment was objectively hostile, a court must consider all of the circumstances, including the frequency and severity of conduct, whether it is threatening and/or humiliating or merely offensive, and whether the harassment unreasonably interferes with an employee’s work.” Id. at 975-76. Indeed, the threshold for plaintiffs is high, as “[t]he workplace that is actionable is one that is ‘hellish.’ ” Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997).
It is well settled that “relatively isolated instances of non-severe misconduct will not support a claim of a hostile environment.” Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir. 1993), and Wolf v. Northwest Ind. Symphony Society, 250 F.3d 1136, 1144 (7th Cir. 2001)
Title VII also prohibits employers from treating employees differently on the basis of sex. See 42 U.S.C. § 2000e- 2(a)(1). To establish a claim of sex discrimination, or disparate treatment, a plaintiff can proceed either directly, by presenting direct and/or circumstantial evidence of the employer’s discriminatory intent, or indirectly, through the burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Wyninger, 361 F.3d at 978. The McDonnell Douglas burden-shifting approach can also be used to establish indirectly a claim of retaliation 42 U.S.C. § 2000e-3(a) provides: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” in violation of 42 U.S.C. § 2000e-3(a).1 See Wyninger v. New
Venture, 361 F.3d 965, 981 (7th Cir. 2004).
To establish a claim of retaliation under the indirect method of McDonnell Douglas, a plaintiff must establish that “(1) after lodging a complaint about discrimination, (2) only he, and not any otherwise similarly situated employee who did not complain, was (3) subjected to an adverse employment action even though (4) he was performing his job in a satisfactory manner.” Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 642 (7th Cir. 2002) “Typically, adverse employment actions are economic injuries.” Markel v. Board of Regents of Univ. of Wis. Sys., 276 F.3d 906, 911 (7th Cir.2002). Of course, “adverse job action is not limited solely to loss or reduction of pay or monetary benefits. It can encompass other forms of adversity as well.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) (quoting Collins v. State of Illinois, 830 F.2d 692, 703 (7th Cir. 1987)). “[T]he adverse action must materially alter the terms and conditions of employment.” Stutler v. Ill. Dept. of Corr., 263 F.3d 698, 703 (7th Cir. 2001).
Tangible job consequences are adverse employment actions actionable under Title VII.” Longstreet v. Ill. Dep’t of Corrections, 276 F.3d 379, 384 (7th Cir. 2002)
Standards for actionable adverse action for discrimination claims under § 2000e-2(a) and retaliation claims under § 2000e-3(a) are not identical. “Section 2000e-3(a) is ‘broader’ than § 2000e-2(a) in the sense that retaliation may take so many forms, while § 2000e-2(a) is limited to discrimination ‘with respect to [the worker’s] compensation, terms, conditions, or privileges of employment.’ ” Washington v. Ill. Dep’t of Revenue, No. 03-3818, slip op. at 3 (7th Cir. August 22, 2005); see also Herrnreiter, 315 F.3d 742, 746 (7th Cir. 2002) (recognizing that, to be actionable under Title VII, retaliation need not involve “an actual employment action”). In the retaliation context, an employer’s action will be actionable under § 2000e-3(a) if it would have “dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Washington, slip op. at 7.
28 U. S. C. §1367
Title VII of the Civil Rights Act of 1964 makes it unlawful for "an employer ... to discriminate against any [employee] with respect to ... sex," 42 U. S. C. §2000e-2(a)(1), and defines "employer" as "a person ... who has fifteen or more employees," §2000e(b). The Act's jurisdictional provision empowers federal courts to adjudicate civil actions "brought under" Title VII. §2000e-5(f)(3). Title VII actions also fit within the Judicial Code's grant of subject-matter jurisdiction to federal courts over actions "arising under" federal law. 28 U. S. C. §1331. Because Congress has also authorized federal courts to exercise "supplemental" jurisdiction over state-law claims linked to a federal claim, 28 U. S. C. §1367, Title VII plaintiffs may pursue complete relief in federal court. Arbaugh v. Y & H Corp. (2006) Therefore, under 28 U. S. C. §1367, federal courts may exercise "supplemental" jurisdiction over state-law claims linked to a claim based on federal law. Plaintiffs suing under Title VII may avail themselves of the opportunity §1367 provides to pursue complete relief in a federal-court lawsuit. Arbaugh v. Y&H Corp., U.S. 380 F.3d 219 (2006)
For example, the Illinois Human Rights Act states that it is a "civil rights violation" for any employer or employee "to engage in sexual harassment." 775 ILCS 5/2--102(D) (West 1992)). The Act defines sexual harassment as follows: "…any conduct of a sexual nature when submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment." 775 ILCS 5/2--101(E) (West 1992)). 775 ILCS 5/2-101 (E) Sexual Harassment. “Sexual Harassment means … any conduct of a sexual nature... (3) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.
The Illinois Supreme Court has stated that in analyzing employment discrimination cases under the Human Rights Act, Illinois has adopted the "analytical framework" set forth by the United States Supreme Court decisions addressing claims brought under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. Zaderaka v. Illinois Human Rights Comm'n, 131 Ill. 2d 172, 178, 545 N.E.2d 684 (1989).
The Seventh Circuit Court of Appeals has recognized that intentional discrimination can be shown by one of two methods: (1) direct evidence or (2) indirect evidence. The analytical framework for proof of intentional discrimination through indirect evidence established by the United States Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and adopted by the Illinois Supreme Court in Zaderak v. Illinois Human Rights Comm’n, 131 Ill. App. 3d 172 (1989), which involves a three-part analysis. First, the plaintiff must establish by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, a rebuttable presumption arises that the employer unlawfully discriminated against the employee.
The employer must articulate, but not prove, a legitimate, nondiscriminatory reason for its decision to rebut the presumption. The petitioner must then prove by a preponderance of the evidence that the employer's articulated reason was merely a pretext for unlawful discrimination. Zaderaka 131 Ill. App. 3d at 179. A prima facie case for unlawful age discrimination is established by showing by a preponderance of the evidence that: (1) the complainant is a member of a protected class (age 40 or over); (2) the complainant was doing the job well enough to meet his employer's legitimate expectations; (3) he was discharged or demoted; and (4) similarly-situated younger employees were treated materially better. Illinois J. Livingston Co. v. Human Rights Comm'n, 302 Ill. App. 3d 141, 153, 794 N.E.2d 797 (1998).
Intentional discrimination may also be shown by direct evidence pursuant to Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994). Under this approach, a petitioner may establish his case with either direct or circumstantial evidence. Troupe, 20 F.3d at 735-36.
The Troupe court recognized three types of circumstantial evidence that a petitioner could utilize to satisfy his burden of proof: (1) evidence of "suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn"; (2) evidence "whether or not rigorously statistical, that employees similarly situated to the plaintiff other than in the characteristic on which an employer is forbidden to base a difference in treatment received systematically better treatment"; and (3) evidence "the [petitioner] was qualified for the job in question but passed over in favor of (or replaced by) a person not having the forbidden characteristic and that the employer's stated reason for the difference in treatment is unworthy of belief, a mere pretext for discrimination." Troupe, 20 F.3d at 736.
To establish a prima facie case of discrimination, the claimant must show by a preponderance of evidence that: (1) he is a member of a protected class; (2) he was performing satisfactorily; (3) he was discharged despite the adequacy of her work; and (4) a similarly situated employee who was not a member of the protected group was not discharged. Marinelli, 262 Ill. App. 3d at 253. Once a claimant satisfies a prima facie case, the employer must articulate, not prove, a legitimate, nondiscriminatory basis for its action. Alcequeire v. Human Rights Comm'n, 292 Ill. App. 3d 515, 685 N.E.2d 974 (1997).
The United States Supreme Court, in National R. R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2071-73 (2002), reports hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 348-349 (3d ed. 1996) (hereinafter Lindemann) ("The repeated nature of the harassment or its intensity constitutes evidence that management knew or should have known of its existence").
The "unlawful employment practice" therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) ("As we pointed out in Meritor [Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986),] `mere utterance of an ... epithet which engenders offensive feelings in a employee,' ibid. (internal quotation marks omitted) does not sufficiently affect the conditions of employment to implicate Title VII"). Such claims are based on the cumulative affect of individual acts.
The court goes on to report "We have repeatedly made clear that although [Title VII] mentions specific employment decisions with immediate consequences, the scope of the prohibition `is not limited to "economic" or "tangible" discrimination,' " Harris, [510 U. S., at, 21] (quoting Meritor Savings Bank, FSB v. Vinson, [477 U. S.,] at 64), and that it covers more than `terms' and `conditions' in the narrow contractual sense." Faragher v. Boca Raton, 524 U.S. 775, 786 (1998) (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998)).
As the Court stated in Harris, "the phrase `terms, conditions, or privileges of employment' [of 42 U. S. C. §2000e-2(a)(1)] evinces a congressional intent `to strike at the entire spectrum of disparate treatment of men and women' in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment." 510 U.S. at 21 (some internal quotation marks omitted) (quoting Meritor, 477 U.S. at 64, in turn quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, n. 13 (1978)). "Workplace conduct is not measured in isolation .... "Clark County School Dist. v. Breeden, 532 U.S. 268, 270 (2001) (per curiam).
Thus, "when the workplace is permeated with `discriminatory intimidation, ridicule, and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Harris, 510 U.S. at 21 (internal citations omitted).
The court goes on to say, “In determining whether an actionable hostile work environment claim exists, we look to "all the circumstances," including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23. " A hostile work environment claim is comprised of a series of separate acts that collectively constitute one "unlawful employment practice." 42 U. S. C. §2000e-5(e)(1).
In Whittaker v. Northern Illinois University et al. (7th Cir. 2005) this court reports pursuant to Title VII, “it shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Accordingly, this statute prohibits employers from “requiring people to work in a discriminatorily hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Shanoff v. Ill. Dep’t of Human Servs., 258 F.3d 696, 701 (7th Cir. 2001).
To prevail on his hostile work environment claim, plaintiff must establish that: “(1) he was subjected to unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; (2) the conduct was severe or pervasive enough to create a hostile work environment; (3) the conduct was directed at him because of his sex; and (4) there is a basis for employer liability.” Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 505 (7th Cir. 2004).
To prove “hostile work environment,” the alleged harassment must be “both subjectively and objectively so severe or pervasive as to alter the conditions of her employment and create an abusive working environment.” Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 975 (7th
Cir. 2004). “In determining whether the environment was objectively hostile, a court must consider all of the circumstances, including the frequency and severity of conduct, whether it is threatening and/or humiliating or merely offensive, and whether the harassment unreasonably interferes with an employee’s work.” Id. at 975-76. Indeed, the threshold for plaintiffs is high, as “[t]he workplace that is actionable is one that is ‘hellish.’ ” Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997).
It is well settled that “relatively isolated instances of non-severe misconduct will not support a claim of a hostile environment.” Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir. 1993), and Wolf v. Northwest Ind. Symphony Society, 250 F.3d 1136, 1144 (7th Cir. 2001)
Title VII also prohibits employers from treating employees differently on the basis of sex. See 42 U.S.C. § 2000e- 2(a)(1). To establish a claim of sex discrimination, or disparate treatment, a plaintiff can proceed either directly, by presenting direct and/or circumstantial evidence of the employer’s discriminatory intent, or indirectly, through the burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Wyninger, 361 F.3d at 978. The McDonnell Douglas burden-shifting approach can also be used to establish indirectly a claim of retaliation 42 U.S.C. § 2000e-3(a) provides: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” in violation of 42 U.S.C. § 2000e-3(a).1 See Wyninger v. New
Venture, 361 F.3d 965, 981 (7th Cir. 2004).
To establish a claim of retaliation under the indirect method of McDonnell Douglas, a plaintiff must establish that “(1) after lodging a complaint about discrimination, (2) only he, and not any otherwise similarly situated employee who did not complain, was (3) subjected to an adverse employment action even though (4) he was performing his job in a satisfactory manner.” Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 642 (7th Cir. 2002) “Typically, adverse employment actions are economic injuries.” Markel v. Board of Regents of Univ. of Wis. Sys., 276 F.3d 906, 911 (7th Cir.2002). Of course, “adverse job action is not limited solely to loss or reduction of pay or monetary benefits. It can encompass other forms of adversity as well.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) (quoting Collins v. State of Illinois, 830 F.2d 692, 703 (7th Cir. 1987)). “[T]he adverse action must materially alter the terms and conditions of employment.” Stutler v. Ill. Dept. of Corr., 263 F.3d 698, 703 (7th Cir. 2001).
Tangible job consequences are adverse employment actions actionable under Title VII.” Longstreet v. Ill. Dep’t of Corrections, 276 F.3d 379, 384 (7th Cir. 2002)
Standards for actionable adverse action for discrimination claims under § 2000e-2(a) and retaliation claims under § 2000e-3(a) are not identical. “Section 2000e-3(a) is ‘broader’ than § 2000e-2(a) in the sense that retaliation may take so many forms, while § 2000e-2(a) is limited to discrimination ‘with respect to [the worker’s] compensation, terms, conditions, or privileges of employment.’ ” Washington v. Ill. Dep’t of Revenue, No. 03-3818, slip op. at 3 (7th Cir. August 22, 2005); see also Herrnreiter, 315 F.3d 742, 746 (7th Cir. 2002) (recognizing that, to be actionable under Title VII, retaliation need not involve “an actual employment action”). In the retaliation context, an employer’s action will be actionable under § 2000e-3(a) if it would have “dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Washington, slip op. at 7.
28 U. S. C. §1367
Title VII of the Civil Rights Act of 1964 makes it unlawful for "an employer ... to discriminate against any [employee] with respect to ... sex," 42 U. S. C. §2000e-2(a)(1), and defines "employer" as "a person ... who has fifteen or more employees," §2000e(b). The Act's jurisdictional provision empowers federal courts to adjudicate civil actions "brought under" Title VII. §2000e-5(f)(3). Title VII actions also fit within the Judicial Code's grant of subject-matter jurisdiction to federal courts over actions "arising under" federal law. 28 U. S. C. §1331. Because Congress has also authorized federal courts to exercise "supplemental" jurisdiction over state-law claims linked to a federal claim, 28 U. S. C. §1367, Title VII plaintiffs may pursue complete relief in federal court. Arbaugh v. Y & H Corp. (2006) Therefore, under 28 U. S. C. §1367, federal courts may exercise "supplemental" jurisdiction over state-law claims linked to a claim based on federal law. Plaintiffs suing under Title VII may avail themselves of the opportunity §1367 provides to pursue complete relief in a federal-court lawsuit. Arbaugh v. Y&H Corp., U.S. 380 F.3d 219 (2006)
For example, the Illinois Human Rights Act states that it is a "civil rights violation" for any employer or employee "to engage in sexual harassment." 775 ILCS 5/2--102(D) (West 1992)). The Act defines sexual harassment as follows: "…any conduct of a sexual nature when submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment." 775 ILCS 5/2--101(E) (West 1992)). 775 ILCS 5/2-101 (E) Sexual Harassment. “Sexual Harassment means … any conduct of a sexual nature... (3) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.
The Illinois Supreme Court has stated that in analyzing employment discrimination cases under the Human Rights Act, Illinois has adopted the "analytical framework" set forth by the United States Supreme Court decisions addressing claims brought under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. Zaderaka v. Illinois Human Rights Comm'n, 131 Ill. 2d 172, 178, 545 N.E.2d 684 (1989).
The Seventh Circuit Court of Appeals has recognized that intentional discrimination can be shown by one of two methods: (1) direct evidence or (2) indirect evidence. The analytical framework for proof of intentional discrimination through indirect evidence established by the United States Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and adopted by the Illinois Supreme Court in Zaderak v. Illinois Human Rights Comm’n, 131 Ill. App. 3d 172 (1989), which involves a three-part analysis. First, the plaintiff must establish by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, a rebuttable presumption arises that the employer unlawfully discriminated against the employee.
The employer must articulate, but not prove, a legitimate, nondiscriminatory reason for its decision to rebut the presumption. The petitioner must then prove by a preponderance of the evidence that the employer's articulated reason was merely a pretext for unlawful discrimination. Zaderaka 131 Ill. App. 3d at 179. A prima facie case for unlawful age discrimination is established by showing by a preponderance of the evidence that: (1) the complainant is a member of a protected class (age 40 or over); (2) the complainant was doing the job well enough to meet his employer's legitimate expectations; (3) he was discharged or demoted; and (4) similarly-situated younger employees were treated materially better. Illinois J. Livingston Co. v. Human Rights Comm'n, 302 Ill. App. 3d 141, 153, 794 N.E.2d 797 (1998).
Intentional discrimination may also be shown by direct evidence pursuant to Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994). Under this approach, a petitioner may establish his case with either direct or circumstantial evidence. Troupe, 20 F.3d at 735-36.
The Troupe court recognized three types of circumstantial evidence that a petitioner could utilize to satisfy his burden of proof: (1) evidence of "suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn"; (2) evidence "whether or not rigorously statistical, that employees similarly situated to the plaintiff other than in the characteristic on which an employer is forbidden to base a difference in treatment received systematically better treatment"; and (3) evidence "the [petitioner] was qualified for the job in question but passed over in favor of (or replaced by) a person not having the forbidden characteristic and that the employer's stated reason for the difference in treatment is unworthy of belief, a mere pretext for discrimination." Troupe, 20 F.3d at 736.
To establish a prima facie case of discrimination, the claimant must show by a preponderance of evidence that: (1) he is a member of a protected class; (2) he was performing satisfactorily; (3) he was discharged despite the adequacy of her work; and (4) a similarly situated employee who was not a member of the protected group was not discharged. Marinelli, 262 Ill. App. 3d at 253. Once a claimant satisfies a prima facie case, the employer must articulate, not prove, a legitimate, nondiscriminatory basis for its action. Alcequeire v. Human Rights Comm'n, 292 Ill. App. 3d 515, 685 N.E.2d 974 (1997).
Discrimination in Terms and Conditions/Adverse Employment Actions
Discrimination in terms and conditions of employment and adverse employment action
In Washington v. Illinois Department of Revenue (7th Cir. 2005) this court reports Title VII does not define “discrimination,” the key term not only for §2000e-2(a) but also for §2000e-3(a), as the latter section treats retaliation as a form of discrimination. Lack of a definition leaves unresolved the question how important a difference must be to count as “discrimination.”
The Washington Court goes on to say, the Supreme Court has held that, although any “tangible employment action”—lower pay or another “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998)—may be treated as “discrimination,” only a “severe or pervasive” change in the daily “conditions” of employment may be treated as discriminatory. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)
The materiality requirement is built into the word “discrimination” and thus must apply to the anti-retaliation rule in §2000e-3(a), whether the supposedly retaliatory acts occur in or out of the workplace. Now “material” is one of those protean words that resist further definition. This holds open some potential to say that an act that would be immaterial in some situations is material in others. As we remarked in Herrnreiter, 315 F.3d at 746, the sort of response deemed immaterial to self-interested charges could be material to others, and thus could be deemed discriminatory. To recapitulate: “discrimination” entails a requirement that the employer’s challenged action would have been material to a reasonable employee, which means that the same requirement applies to §2000e-3(a), the anti-retaliation clause, as well as the other provisions in Title VII that use the word “discrimination.” An employer’s action is not material under §2000e-3(a) if it would not have dissuaded a reasonable worker from making or supporting a charge of discrimination. Id.
In Maalik v. International Union of Elevator Constructors, Local 2 (7th Cir. 2006) this court reports when the grievance concerns terms and conditions of employment, only the employer is liable. Title VII, 42 U.S.C. §2000e-2(a), imposes the duty of providing nondiscriminatory terms and conditions of employment on employers only. Section 703(d) provides: “It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.”
Title VII makes both employers and unions liable for their own conduct, not that of employees or members. Thus when line employees engage in discrimination, employers are not automatically liable; only if they know (or ought to know) what is going on and choose to do nothing (or select ineffectual steps when better ones are available) are they liable. See, e.g., Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 759 (1998) (explaining the circumstances under which an employer’s feckless responses to intentional misconduct by an employee means that the misconduct is attributed to the firm); Faragher v. Boca Raton, 524 U.S. 775 (1998). As in Goodman and Indiana Bell, however, turning a blind eye to members’ or employees’ discrimination is not reasonable.
In Washington v. Illinois Department of Revenue (7th Cir. 2005) this court reports Title VII does not define “discrimination,” the key term not only for §2000e-2(a) but also for §2000e-3(a), as the latter section treats retaliation as a form of discrimination. Lack of a definition leaves unresolved the question how important a difference must be to count as “discrimination.”
The Washington Court goes on to say, the Supreme Court has held that, although any “tangible employment action”—lower pay or another “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998)—may be treated as “discrimination,” only a “severe or pervasive” change in the daily “conditions” of employment may be treated as discriminatory. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)
The materiality requirement is built into the word “discrimination” and thus must apply to the anti-retaliation rule in §2000e-3(a), whether the supposedly retaliatory acts occur in or out of the workplace. Now “material” is one of those protean words that resist further definition. This holds open some potential to say that an act that would be immaterial in some situations is material in others. As we remarked in Herrnreiter, 315 F.3d at 746, the sort of response deemed immaterial to self-interested charges could be material to others, and thus could be deemed discriminatory. To recapitulate: “discrimination” entails a requirement that the employer’s challenged action would have been material to a reasonable employee, which means that the same requirement applies to §2000e-3(a), the anti-retaliation clause, as well as the other provisions in Title VII that use the word “discrimination.” An employer’s action is not material under §2000e-3(a) if it would not have dissuaded a reasonable worker from making or supporting a charge of discrimination. Id.
In Maalik v. International Union of Elevator Constructors, Local 2 (7th Cir. 2006) this court reports when the grievance concerns terms and conditions of employment, only the employer is liable. Title VII, 42 U.S.C. §2000e-2(a), imposes the duty of providing nondiscriminatory terms and conditions of employment on employers only. Section 703(d) provides: “It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.”
Title VII makes both employers and unions liable for their own conduct, not that of employees or members. Thus when line employees engage in discrimination, employers are not automatically liable; only if they know (or ought to know) what is going on and choose to do nothing (or select ineffectual steps when better ones are available) are they liable. See, e.g., Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 759 (1998) (explaining the circumstances under which an employer’s feckless responses to intentional misconduct by an employee means that the misconduct is attributed to the firm); Faragher v. Boca Raton, 524 U.S. 775 (1998). As in Goodman and Indiana Bell, however, turning a blind eye to members’ or employees’ discrimination is not reasonable.
At-Will Employment: Contractual Claim under Section 1981
At Will Employment Contractual claim under § 1981
In Domino’s Pizza, Inc. et al., v. McDonald (2006) the United States Supreme Court reports “consistent with this Court's case law, and as required by the statute's plain text, a plaintiff cannot state a §1981 claim unless he has (or would have) rights under the existing (or proposed) contract that he wishes "to make and enforce." The statute, originally enacted as §1 of the Civil Rights Act of 1866, now protects the equal right of "all persons" to "make and enforce contracts" without respect to race, §1981(a), and defines "make and enforce contracts" to "include the making, performance, modification, and termination of contracts, and the enjoyment of all benefits ... of the contractual relationship," §1981(b).”
Personal liability for actions taken on behalf of the corporation attaches only when the officer or director is alleged to have taken part in the wrongful act initially giving rise to the corporation's liability. See Musikiwamba v. Essi, Inc., 760 F.2d 740, 753 (7th Cir. 1985) (discussing principles of officer and director liability in context of employment discrimination case); see also National Acceptance Co., 94 Ill. App. 3d at 707, 418 N.E.2d at 1117 ("Although a corporate officer is not generally liable for breach of contract, his status does not shield him from liability for tortious acts from which the breach proximately resulted.”))
In McKnight v. GMC this court took the view that “employment at-will is not a state of nature but a continuing contractual relationship . . . A contract for employment at-will may end abruptly but it is a real and continuing contract nonetheless.” 908 F.2d 104, 109 (7th Cir. 1990) In Walker v. Abbott Laboratories (7th Cir. 2003) the court acknowledges that two other circuits had ruled that at-will employees could state claims under § 1981, see Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018-19 (4th Cir. 1999); Fadeyi v. Planned Parenthood Ass’n of Lubbock, Inc., 160 F.3d 1048, 1049-50 (5th Cir. 1998) Since, three more circuits decided that at-will employees could bring claims under § 1981. See Skinner v. Maritz, 253 F.3d 337, 342 (8th Cir. 2001); Lauture v. Int’l Bus. Machs., 216 F.3d 258, 260 (2d Cir. 2000); Perry v. Woodward, 199 F.3d 1126, 1133 (10th Cir. 1999). These courts have found that at-will employment, though capable of being terminated by either party at any time, is nonetheless a contractual relationship.
The Court’s review of § 1981’s statutory language reveals no intent by Congress to give the word “contract” in § 1981 any specialized meaning; thus, they must assume that the ordinary meaning was intended. See Lauture, 216 F.3d at 261; Spriggs, 165 F.3d at 1018. According to the Second Restatement of Contracts, a contract is “a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” RESTATEMENT (SECOND) OF CONTRACTS § 1(1981). Several courts have recognized that under this definition, at-will employment creates a contract because the employer promises to pay the employee for certain work and the employee accepts the offer by beginning work. See, e.g., Skinner, 253 F.3d at 340 “Employer offered, either implicitly or explicitly, to pay plaintiff for performance of services. Plaintiff accepted that offer by performance.”; Lauture, 216 F.3d at 261 “Plaintiff’s promise to work for employer, as consideration for employer’s promise to pay her, was a contract.”; Spriggs, 165 F.3d at 1018 “Plaintiff’s performance of the assigned job duties was consideration exchanged for employer’s promise to pay. The parties’ actions thus created a contractual relationship.”
The lack of a fixed duration of employment does not make the relationship any less contractual. As we noted in McKnight, at-will employees, though capable of losing or quitting their employment at any time, are not totally without enforceable contractual rights: “Wages, benefits, duties, working conditions, and all (but one) of the other terms are specified and a breach of any of them will give the employee a cause of action for breach of contract.” 908 F.2d at 109. As another court noted, in all at-will employment relationships, employees maintain “the right to treat the employer’s failure to pay for work done by the employee prior to termination of the employment relationship as a breach of contract.” Skinner, 253 F.3d at 341-42.
Moreover, the Restatement contemplates that at-will employment relationships are contractual even though they lack a term of duration. See RESTATEMENT (SECOND) OF CONTRACTS § 33 cmt. d, illus. 6 (1981); see also Spriggs, 165 F.3d at 1018.
Some federal courts have looked to the state-law definition of “contract” to cast further light on whether at-will employees have sufficient contractual rights to maintain § 1981 claims. See, e.g., Skinner, 253 F.3d at 340 (finding that under Missouri law the plaintiff’s at-will employment “had all the essential elements of a valid contract”); Fadeyi, 160 F.3d at 1050 (same under Texas law). Walker contends that Illinois law recognizes at-will employment relationships as contractual, and Abbott makes no argument to the contrary.
From our review of the case law, it does appear that Illinois courts generally treat at-will employment relationships as contractual in nature. See, e.g., Fellhaver v. Geneva, 568 N.E. 2d 870, 878 (Ill. 1991) (recognizing employment at will as a contract for employment with an indefinite duration); cf. Callis, Papa, Jackstadt, and Halloran. P.C. v. Norfolk & W. Ry., 748 N.E. 2d 153, 161 (Ill. 2001) (“The relationship between the law firm and [employee] is a contractual, at-will relationship. Until such a relationship is terminated, the at-will contract is of value to the law firm.”).
Finally, a finding that at-will employees cannot state a § 1981 claim would appear to contravene Congress’s intention in the Civil Rights Act of 1991 to “restore the broad scope of Section 1981 to ensure that all Americans may not be harassed, fired or otherwise discriminated against in contracts because of their race.” H.R. REP. NO. 102-40 (II), at 2 (1991). Congress’s intent to secure protection of all employees is further evident in its explicit disapproval of the way in which the Supreme Court in Patterson limited § 1981’s application. See S. Rep. No. 101-315, at 14 (1990) (finding “a compelling need for legislation to overrule the Patterson decision and ensure that federal law prohibits all race discrimination in contracts”).
Given these inclusive intentions, we find it difficult to believe that Congress would have sought to exclude from § 1981’s protections the large portion of the employees in this country who work under at will employment contracts. As other courts have noted, excluding at-will employees from § 1981 protection “would be to allow use of the ubiquitous at-will doctrine as leverage to incite violations of our state and federal laws.” Fadeyi, 160 F.3d at 1052 (quotation omitted); see also Skinner, 253 F.3d at 340 n.1; Lauture, 216 F.3d at 264.
In Domino’s Pizza, Inc. et al., v. McDonald (2006) the United States Supreme Court reports “consistent with this Court's case law, and as required by the statute's plain text, a plaintiff cannot state a §1981 claim unless he has (or would have) rights under the existing (or proposed) contract that he wishes "to make and enforce." The statute, originally enacted as §1 of the Civil Rights Act of 1866, now protects the equal right of "all persons" to "make and enforce contracts" without respect to race, §1981(a), and defines "make and enforce contracts" to "include the making, performance, modification, and termination of contracts, and the enjoyment of all benefits ... of the contractual relationship," §1981(b).”
Personal liability for actions taken on behalf of the corporation attaches only when the officer or director is alleged to have taken part in the wrongful act initially giving rise to the corporation's liability. See Musikiwamba v. Essi, Inc., 760 F.2d 740, 753 (7th Cir. 1985) (discussing principles of officer and director liability in context of employment discrimination case); see also National Acceptance Co., 94 Ill. App. 3d at 707, 418 N.E.2d at 1117 ("Although a corporate officer is not generally liable for breach of contract, his status does not shield him from liability for tortious acts from which the breach proximately resulted.”))
In McKnight v. GMC this court took the view that “employment at-will is not a state of nature but a continuing contractual relationship . . . A contract for employment at-will may end abruptly but it is a real and continuing contract nonetheless.” 908 F.2d 104, 109 (7th Cir. 1990) In Walker v. Abbott Laboratories (7th Cir. 2003) the court acknowledges that two other circuits had ruled that at-will employees could state claims under § 1981, see Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018-19 (4th Cir. 1999); Fadeyi v. Planned Parenthood Ass’n of Lubbock, Inc., 160 F.3d 1048, 1049-50 (5th Cir. 1998) Since, three more circuits decided that at-will employees could bring claims under § 1981. See Skinner v. Maritz, 253 F.3d 337, 342 (8th Cir. 2001); Lauture v. Int’l Bus. Machs., 216 F.3d 258, 260 (2d Cir. 2000); Perry v. Woodward, 199 F.3d 1126, 1133 (10th Cir. 1999). These courts have found that at-will employment, though capable of being terminated by either party at any time, is nonetheless a contractual relationship.
The Court’s review of § 1981’s statutory language reveals no intent by Congress to give the word “contract” in § 1981 any specialized meaning; thus, they must assume that the ordinary meaning was intended. See Lauture, 216 F.3d at 261; Spriggs, 165 F.3d at 1018. According to the Second Restatement of Contracts, a contract is “a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” RESTATEMENT (SECOND) OF CONTRACTS § 1(1981). Several courts have recognized that under this definition, at-will employment creates a contract because the employer promises to pay the employee for certain work and the employee accepts the offer by beginning work. See, e.g., Skinner, 253 F.3d at 340 “Employer offered, either implicitly or explicitly, to pay plaintiff for performance of services. Plaintiff accepted that offer by performance.”; Lauture, 216 F.3d at 261 “Plaintiff’s promise to work for employer, as consideration for employer’s promise to pay her, was a contract.”; Spriggs, 165 F.3d at 1018 “Plaintiff’s performance of the assigned job duties was consideration exchanged for employer’s promise to pay. The parties’ actions thus created a contractual relationship.”
The lack of a fixed duration of employment does not make the relationship any less contractual. As we noted in McKnight, at-will employees, though capable of losing or quitting their employment at any time, are not totally without enforceable contractual rights: “Wages, benefits, duties, working conditions, and all (but one) of the other terms are specified and a breach of any of them will give the employee a cause of action for breach of contract.” 908 F.2d at 109. As another court noted, in all at-will employment relationships, employees maintain “the right to treat the employer’s failure to pay for work done by the employee prior to termination of the employment relationship as a breach of contract.” Skinner, 253 F.3d at 341-42.
Moreover, the Restatement contemplates that at-will employment relationships are contractual even though they lack a term of duration. See RESTATEMENT (SECOND) OF CONTRACTS § 33 cmt. d, illus. 6 (1981); see also Spriggs, 165 F.3d at 1018.
Some federal courts have looked to the state-law definition of “contract” to cast further light on whether at-will employees have sufficient contractual rights to maintain § 1981 claims. See, e.g., Skinner, 253 F.3d at 340 (finding that under Missouri law the plaintiff’s at-will employment “had all the essential elements of a valid contract”); Fadeyi, 160 F.3d at 1050 (same under Texas law). Walker contends that Illinois law recognizes at-will employment relationships as contractual, and Abbott makes no argument to the contrary.
From our review of the case law, it does appear that Illinois courts generally treat at-will employment relationships as contractual in nature. See, e.g., Fellhaver v. Geneva, 568 N.E. 2d 870, 878 (Ill. 1991) (recognizing employment at will as a contract for employment with an indefinite duration); cf. Callis, Papa, Jackstadt, and Halloran. P.C. v. Norfolk & W. Ry., 748 N.E. 2d 153, 161 (Ill. 2001) (“The relationship between the law firm and [employee] is a contractual, at-will relationship. Until such a relationship is terminated, the at-will contract is of value to the law firm.”).
Finally, a finding that at-will employees cannot state a § 1981 claim would appear to contravene Congress’s intention in the Civil Rights Act of 1991 to “restore the broad scope of Section 1981 to ensure that all Americans may not be harassed, fired or otherwise discriminated against in contracts because of their race.” H.R. REP. NO. 102-40 (II), at 2 (1991). Congress’s intent to secure protection of all employees is further evident in its explicit disapproval of the way in which the Supreme Court in Patterson limited § 1981’s application. See S. Rep. No. 101-315, at 14 (1990) (finding “a compelling need for legislation to overrule the Patterson decision and ensure that federal law prohibits all race discrimination in contracts”).
Given these inclusive intentions, we find it difficult to believe that Congress would have sought to exclude from § 1981’s protections the large portion of the employees in this country who work under at will employment contracts. As other courts have noted, excluding at-will employees from § 1981 protection “would be to allow use of the ubiquitous at-will doctrine as leverage to incite violations of our state and federal laws.” Fadeyi, 160 F.3d at 1052 (quotation omitted); see also Skinner, 253 F.3d at 340 n.1; Lauture, 216 F.3d at 264.
Employment: Supplemental Jurisdiction - Individual Liability
Supplemental Jurisdiction and Defendants Individual Liability
28 U.S.C. §1331 states, the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1367 (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
42 U.S.C. § 1983 Civil Action for Deprivation of Rights states, “Every person who, under color of any statute, ordinance, regulation…of any State or Territory…causes to be subjected, any citizen of the United States…of the deprivation of rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law….” This court can correct me, but I believe the defendants claim they are acting correctly under all statutes governing laws of discrimination, and therefore, would be acting under the color of the statues, ordinances, and regulations.
In Jones and Pressley v. Patrick and Associates Detective Agency, Inc. (7th Cir. 2006) the court reports “Pratts’ actions were within the scope of his employment. That question is governed by state law, and Illinois courts typically decide scope-of-employment issues in line with the principles outlined in the Restatement of Agency. See, e.g., Wright v. City of Danville, 675 N.E.2d 110, 118 (Ill. 1996); Pyne, 543 N.E.2d at 1308; Davila v. Yellow Cab Co., 776 N.E.2d 720, 727 (Ill. App. Ct. 2002). To wit: “(1) Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master, and (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.” Restatement §228.
In Higbee v. Sentry Insurance Co. (7th Cir. 2006) the court defined a supervisor for purposes of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. definition of “supervisor.” See Rhodes v. Ill. Dep’t of Transp., 2 No. 04-1502 359 F.3d 498, 506 (7th Cir. 2004) (explaining that “a supervisor is someone with the power to directly affect the terms and conditions of the plaintiff’s employment” (emphasis in original) (citing Parkins v. Civil Constructors of Ill.,Inc., 163 F.3d 1027, 1034 (7th Cir. 1998); Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002)).
Material Facts, Disparate Treatment, Disparate Impact, Adverse Employment Action
In Farrell v. Butler University (7th Cir. 2005) the court reports when determining whether a genuine issue of material fact exists, we consider evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Material facts are facts that “might affect the outcome of the suit” under the applicable substantive law. See Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 248 (1986). A dispute over material facts is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
This court goes on to report, disparate treatment Title VII prohibits employers from discriminating against employees on the basis of sex or gender. 42 U.S.C. § 2000e-2(a)(1). Claims of discrimination under Title VII for disparate treatment can be proven either through direct or indirect evidence. O’Regan v. Arbitration Forms, Inc., 246 F.3d 975, 983 (7th Cir. 2001). To state a prima facie case of “disparate treatment” gender discrimination under Title VII, in the present matter, a male plaintiff must show that he: (1) is a member of a protected class, (2) is performing his job satisfactorily, (3) suffered an adverse employment action, and (4) was treated less favorably than at least one similarly-situated female colleague. Lim v. Trus. of Ind. Univ., 297 F.3d 575, 580 (7th Cir. 2002); Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1012 (7th Cir. 2000)
The 7th Circuit has adopted a generous definition of the phrase “adverse employment action.” See Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003); see also Haugerud v. Amery Sch. Dist., 259 F.3d 678, 691 (7th Cir. 2001). In some cases, it is apparent that an employee has suffered an adverse employment action, for example, “when an employee is fired, or suffers a reduction in benefits or pay.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996). However, “adverse job action is not limited solely to loss or reduction of pay or monetary benefits. It can encompass other forms of adversity as well.” Collins v. State of Ill., 830 F.2d 692, 703 (7th Cir. 1987).
Farrell reports under a disparate impact theory, an employer is held liable when a facially neutral employment practice disproportionately impacts members of a legally protected group.
Reidt v. County of Trempealeau, 975 F.2d 1336, 1340 (7th Cir. 1992) (citing Dothard v. Rawlinson, 433 U.S. 321, 329 (1977)). Specifically, Title VII prohibits “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” O’Regan v. Arbitration Forms, Inc., 246 F.3d 975, 986 (7th Cir. 2001) This Court has adopted a liberal standard for reviewing the scope of an EEOC charge and has held that “all claims of discrimination are cognizable that are ‘like or reasonably related to the allegations of the charge and growing out of such allegations.’ ” Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir. 1985)
In Walker v. Abbott Laboratories (7th Cir. 2003) this court reports the Civil Rights Statutes provide two separate methods to challenge an employer’s intentional discrimination § 1981 and Title VII. See Runyon v. McCrary, 427 U.S. 160, 174 n.11 (1976) (recounting that the legislative history of the Civil Right Act of 1964 reveals that Title VII and § 1981 were meant to provide alternative remedies to civil-rights violations). Section 1981 provides that “all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a) (2003). Congress did so by adding § 1981(b) to the act, which states: “For purposes of this section, the term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b) (2003).
In Patterson v. McLean Credit Union, the Supreme Court took a narrow view of the phrase “make and enforce contracts,” holding that it meant § 1981’s protections extended only to the formation of a contract and not to conduct occurring after the contract was made. 491 U.S. 164, 176-77 (1989). Congress, however, quickly responded with the Civil Rights Act of 1991, which, inter alia, overruled Patterson, see H.R. REP. NO. 102-40 (II), at 2 (1991), reprinted in 1991 U.S.S.C.A.N. 694, 695, by providing a broad definition of the phase “make and enforce contracts.” Therefore, § 1981 now prohibits discrimination in a contractual relationship beyond the mere formation of the contract. There is no dispute, however, that even as amended § 1981’s protections still center on contractual rights and that proof of a contractual relationship is necessary to establish a § 1981 claim. See Perry, 199 F.3d at 1132; Gonzalez, 133 F.3d at 1034.
28 U.S.C. §1331 states, the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1367 (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
42 U.S.C. § 1983 Civil Action for Deprivation of Rights states, “Every person who, under color of any statute, ordinance, regulation…of any State or Territory…causes to be subjected, any citizen of the United States…of the deprivation of rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law….” This court can correct me, but I believe the defendants claim they are acting correctly under all statutes governing laws of discrimination, and therefore, would be acting under the color of the statues, ordinances, and regulations.
In Jones and Pressley v. Patrick and Associates Detective Agency, Inc. (7th Cir. 2006) the court reports “Pratts’ actions were within the scope of his employment. That question is governed by state law, and Illinois courts typically decide scope-of-employment issues in line with the principles outlined in the Restatement of Agency. See, e.g., Wright v. City of Danville, 675 N.E.2d 110, 118 (Ill. 1996); Pyne, 543 N.E.2d at 1308; Davila v. Yellow Cab Co., 776 N.E.2d 720, 727 (Ill. App. Ct. 2002). To wit: “(1) Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master, and (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.” Restatement §228.
In Higbee v. Sentry Insurance Co. (7th Cir. 2006) the court defined a supervisor for purposes of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. definition of “supervisor.” See Rhodes v. Ill. Dep’t of Transp., 2 No. 04-1502 359 F.3d 498, 506 (7th Cir. 2004) (explaining that “a supervisor is someone with the power to directly affect the terms and conditions of the plaintiff’s employment” (emphasis in original) (citing Parkins v. Civil Constructors of Ill.,Inc., 163 F.3d 1027, 1034 (7th Cir. 1998); Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002)).
Material Facts, Disparate Treatment, Disparate Impact, Adverse Employment Action
In Farrell v. Butler University (7th Cir. 2005) the court reports when determining whether a genuine issue of material fact exists, we consider evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Material facts are facts that “might affect the outcome of the suit” under the applicable substantive law. See Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 248 (1986). A dispute over material facts is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
This court goes on to report, disparate treatment Title VII prohibits employers from discriminating against employees on the basis of sex or gender. 42 U.S.C. § 2000e-2(a)(1). Claims of discrimination under Title VII for disparate treatment can be proven either through direct or indirect evidence. O’Regan v. Arbitration Forms, Inc., 246 F.3d 975, 983 (7th Cir. 2001). To state a prima facie case of “disparate treatment” gender discrimination under Title VII, in the present matter, a male plaintiff must show that he: (1) is a member of a protected class, (2) is performing his job satisfactorily, (3) suffered an adverse employment action, and (4) was treated less favorably than at least one similarly-situated female colleague. Lim v. Trus. of Ind. Univ., 297 F.3d 575, 580 (7th Cir. 2002); Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1012 (7th Cir. 2000)
The 7th Circuit has adopted a generous definition of the phrase “adverse employment action.” See Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003); see also Haugerud v. Amery Sch. Dist., 259 F.3d 678, 691 (7th Cir. 2001). In some cases, it is apparent that an employee has suffered an adverse employment action, for example, “when an employee is fired, or suffers a reduction in benefits or pay.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996). However, “adverse job action is not limited solely to loss or reduction of pay or monetary benefits. It can encompass other forms of adversity as well.” Collins v. State of Ill., 830 F.2d 692, 703 (7th Cir. 1987).
Farrell reports under a disparate impact theory, an employer is held liable when a facially neutral employment practice disproportionately impacts members of a legally protected group.
Reidt v. County of Trempealeau, 975 F.2d 1336, 1340 (7th Cir. 1992) (citing Dothard v. Rawlinson, 433 U.S. 321, 329 (1977)). Specifically, Title VII prohibits “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” O’Regan v. Arbitration Forms, Inc., 246 F.3d 975, 986 (7th Cir. 2001) This Court has adopted a liberal standard for reviewing the scope of an EEOC charge and has held that “all claims of discrimination are cognizable that are ‘like or reasonably related to the allegations of the charge and growing out of such allegations.’ ” Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir. 1985)
In Walker v. Abbott Laboratories (7th Cir. 2003) this court reports the Civil Rights Statutes provide two separate methods to challenge an employer’s intentional discrimination § 1981 and Title VII. See Runyon v. McCrary, 427 U.S. 160, 174 n.11 (1976) (recounting that the legislative history of the Civil Right Act of 1964 reveals that Title VII and § 1981 were meant to provide alternative remedies to civil-rights violations). Section 1981 provides that “all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a) (2003). Congress did so by adding § 1981(b) to the act, which states: “For purposes of this section, the term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b) (2003).
In Patterson v. McLean Credit Union, the Supreme Court took a narrow view of the phrase “make and enforce contracts,” holding that it meant § 1981’s protections extended only to the formation of a contract and not to conduct occurring after the contract was made. 491 U.S. 164, 176-77 (1989). Congress, however, quickly responded with the Civil Rights Act of 1991, which, inter alia, overruled Patterson, see H.R. REP. NO. 102-40 (II), at 2 (1991), reprinted in 1991 U.S.S.C.A.N. 694, 695, by providing a broad definition of the phase “make and enforce contracts.” Therefore, § 1981 now prohibits discrimination in a contractual relationship beyond the mere formation of the contract. There is no dispute, however, that even as amended § 1981’s protections still center on contractual rights and that proof of a contractual relationship is necessary to establish a § 1981 claim. See Perry, 199 F.3d at 1132; Gonzalez, 133 F.3d at 1034.
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