Hedrick G. Humphries v. Cbocs West, Inc.

its recover is entitled to UPS prejudice. UPS it contends a contract force wants, appeal. costs on to use reality, Treiber breached. contract the part the of avoid law to state liability. Its claim carrier’s the

that limits conventional not for

is therefore in Wol contemplated

breach contract we unless prevail cannot Treiber

ens. or enhance “enlargement require

were laws on state based contract] ment [of HUMPHRIES, Hedrick G. agreement.” to the external policies or Plaintiff-Appellant, King 115 S.Ct. 817. (“[W]e hold that at 965 Jewelry, refused appropriately court

the district INC., WEST, Defendant- CBOCS law to use Jewelry to California King allow Appellee. Because liability provision.”). modify the No. 05-4047. service, certain kind compel a it would “ ‘having the effect, would, be a rule this Appeals, Court States United rates, relating to of law and effect force Circuit. Seventh carrier... any routes, air or services Wolens, 1305(a)(1).” March U.S.C.App. Argued Rules of 222-23, 115 S.Ct. 817. 10, 2007. Decided Jan. by the explicitly"preempted are type this 29, 2007. Denied Jan. Rehearing hold, preempted and, equally are ADA we law common analogous federal by the part of fact that one

air bills. al does with insurance deals

contract con insurance UPS’s

ter our conclusion. inter are so contract shipping

tract and its law permit state contract that to

twined the other. it to affect to allow

affect one is a common contract between

The shipping shipper, air packages

carrier court, cannot be in state enforceable

while that is what law. Since by state

rewritten that the do, find we must seeks

Treiber in this theory of contract

state law breach preempted.

case is

Ill reasons, judg- ApfiRM these

For of UPS court in favor the district

ment of claim. We common law

on the federal insofar court’s decision

Modify prej- claim without state law

dismisses theory preempted this

udice. Because dismissing law, judgment

by federal one with changed to be claim must Barnes & (argued), F. Kuenstler

John IL, for Defendant Chicago, Thornburg, Appellee. EASTERBROOK, Judge, Chief

Before WILLIAMS, Circuit POSNER and Judges.

WILLIAMS, Judge. Circuit alleging filed a suit Humphries Hedrick un- discrimination and claims § 1981 against 42 U.S.C. Title VII and der dis- West, upon his based CBOCS at one of manager associate as an charge Barrel restaurants. Cracker defendant’s Title VII Humphries’s dismissing After barred, the district procedurally as claims in favor summary judgment granted court (hereinafter “Crack- West, Inc. of CBOCS could Barrel”), Humphries holding that er facie burden prima his not establish similarly situated individual that a showing treated more class was non-protected in a court’s the district reverse favorably. We to Hum- summary judgment grant Hum- because claim phries’s retaliation showing made a phries sufficient facie prima to establish method indirect 1981. We under section of retaliation case Humphries’s as to judgment affirm Humphries because claim discrimination present failing by this claim forfeited the district argument before adequate court.

I. BACKGROUND are recounted following facts Humphries, favorable light most an African- Humphries, non-movant. managér male, anwas associate American in Brad- Barrel restaurant at Cracker managers Associate ley, Illinois. gen- supervised are Barrel Cracker supervised in turn who Robinson, manager, eral Cur- (argued), M. Krull Angel case, In this manager. district by a IL, for Plaintiff- Chicago, Clayton, ley & through cycled managers general three Appellant. during Humphries’s three-year tenure: cause she purportedly failed to up show for (cid:127) Sessions, Don Steve Cardin and Ken a shift. Humphries complained to both Dowd. performance His during his first Dowd and Christensen that Stinnett’s fir- years two-and-a-half (roughly February ing of Green was discriminatory because, 2001) through mid-July general- among other things, Green had informed ly instance, excellent. For he received both Humphries and another associate annual bonuses, merit raises and and his manager that she could not work that (Sessions) supervisor testified Moreover, that he shift. according to Humphries, Humphries considered to be his best as- a white employee had failed appear manager. sociate , changed Circumstances work on several notice, occasions without for Humphries (as when Cardin took over but was not fired. Humphries also re- a temporary replacement) for Sessions. minded Christensen of his earlier com- According to Humphries, routinely Cardin plaints regarding former-general manager racially made derogatory remarks, such Cardin. According to Humphries, Chris- as stating all that African-Americans are tensen him berated for “going outside the “drunk or drugs” on high or that “all management (i.e., group” turning to Chris- Mexicans have a bunch of tensen, kids.” Hum- Dowd, than rather to complain) phries alleges that other employees con- and demanded that Humphries schedule a firmed comments, Cardin’s inappropriate meeting with Dowd for the following week. and told Humphries that Cardin had stat- This scheduled meeting never occurred ed that he there was “for the peo- white (the because on December day ple” and “going to take care of the before Humphries’s scheduled meeting people.” white Dowd), Christensen fired Humphries,

Within initial Cardin’s month of being upon based Stinnett’s complaint that Hum- general manager, he issued Humphries phries had left the store safe unlocked five disciplinary reports, called Employee during evening charge that Hum- —a (ECRs). Counseling Reports phries ECRs disputes. Humphries also claims covered a range wide of alleged miscon- prior (and that his firing to before his duct, including deposit bank shortages and alleged safe), failure to lock the a cashier inappropriate use Gold provide Cards to warned him that he should watch himself complaining customers free meal. Hum- because Christensen and Stinnett were phries claims that the ground- ECRs were “up to something.” After being informed less and reflected Cardin’s racial animus. Stinnett Humphries had left the response, In in August or September 2001, unlocked, safe immediately Christensen Humphries complained to super- Cardin’s terminated Humphries inter- —without visor, district manager William Christen- viewing him or investigating the incident Christensen, sen. however, appears not to to determine whether Humphries had ac- have any investigation conducted of Hum- tually left the open. safe phries’s claims, contrary to Cracker Barrel Humphries subsequently brought claims policies. of discrimination and Ti- retaliation under

In September 2001, Ken Dowd became tle VII and section 1981. The district (Cardin general manager returned, court Humphries’s dismissed Title VII store). to planned, his Shortly thereafter, (and claims due to procedural deficiencies Stinnett, Joe of Humphries’s one Humphries fellow appeal does not this determi- associate managers, nation). fired an African- The district granted court also server, American food Green, summary Venis be- judgment favor Cracker to course, the'right claims, retain Of we Humphries’s Barrel may arguments, and to establish forfeited failed consider Humphries finding that justice.” either direct case under “in interests of facie do so prima his to choose ap- Humphries now Leasing, method. Koenig or indirect v. Vic Bay Ins. Co. Mass. peals. (7th Cir.1998); v. Detrex Corp. Amcast Indus. see also

II. ANALYSIS Cir.1993) 746, 749-50 Corp., Retaliation Overview Historical rare case'in which A. (holding “[i]n Section Claims district to the present ground to failure one—mot district has caused no court this merits of turn we Before harm us, appellee any not the judge, whether Hum- decide must appeal, we — note, un cognizable take ought claim is the law phries’s of which Bar Although Cracker permit right der section power and have the in the district us”)'. raise this issue failed to rel first time for the to be raised our decision court, claims that it now instance, our Hart recent given Racine, Management v. Transit Hart con have created some to appears decision (7th Cir.2005), precludes 426 F.3d al courts has district the fusion nor claim. retaliation Humphries’s decisions, in several ready misapplied been present fails to course, party when mal clarify to justice interests it is in the court, it forfeits in the trial argument an cog are retaliation claims of whether issue Republic appeal. See argument on (and, in so do nizable under section Co., Trading N. Atl. v.Co. Tobacco Hart). Am- ruling in clarify our ing, (7th Cir.2004); v. McKnight F.3d F,3d not (reaching issue cast, at- 104, 107-10 F.2d Corp., Motors Gen. fully it was briefed because below raised Cir.1990). counsel (7th argument, At oral “entirely pure on a issue rested on appeal, did that he explained Barrel for Cracker toas which statutory interpretation, the district court this issue not raise , no while would judge’s district view Hart, contended created which he because have no effect could interesting, doubt be circuit, not law in had change in the this matter's review, plenary is which on our (as ex Although we will yet issued. been its defer no reason to law[, is there and] that Hart later), believe do not we plain will be There case. to another resolution sec regarding jurisprudence changed our than to resolve issue time no better claims, not we will tion 1981 Co., now.”); Bay Ins. Mass. failing to raise for Barrel penalize Cracker issue choice-of-law (reaching forfeited argument below.1 its of an ("We agree the failure certainly in this confusion there is some 1. We note that possible all alternative appellee to have raised appellee opposed whether to an circuit as —as orig- affirming the court’s grounds district par for to a to raise appellant an failed —who decision, appellant's an failure unlike sup inal argument district court in in the ticular reversal, should grounds for possible summary judgment is raise all for port motion of his urging of alter- operate as a The waiver. this not raising arguments in precluded from new privilege is a grounds affirmance ruling. native court’s the district court affirm Corp. Sobering v. duty.” (quoting Lacke, than rather 885 F.2d e.g, Gray v. Compare, (7th Co., 89 F.3d Ill: Antibiotics 1989) appellees (7th (holding that waived Cir. ques- this Cir.1996))). resolve We need failing it in the district to raise a claim issue, 142, 146 to review Clark, choose because court), Baskin forfeit- Cracker Barrel irrespective of whether 1992) (same), (7th Ins. Transamerica Cir. Cir.1997) not. South, ed issue or Co. v. clearly because “we think it is in the inter- Congress with legislative power to en- justice est of to insure that district courts force the Thirteenth prohibi- Amendment’s Const, analyses conduct choice-of-law when con- slavery. tion on amend. them”). questions flicts are presented to XIII, § 2. The Act was a response direct Codes,” to the so-called “Black a series of 1. Section Origin 1981’s in the Civil (and legislative by many acts southern Rights Act of 1866 . northern) some of, states in protest and as language codified section 1981 a tacit upon, attack recently enacted derives from section 1 of the Civil Rights Thirteenth Amendment. The Black Codes Act of a Reconstruction-era statute imposed onerous legal limitations on new- generally recognized as the first ly-freed former attempt slaves significant rights legislation civil enacted circumvent the requirements of the Thir- by Congress, and is considered the “initial Amendment, teenth and essentially contin- blueprint of the Fourteenth Amendment.” pattern ued a legal enslavement. See Ass’n, Bldg. Gen. Contractors Inc. v. Cases, (16 Slaughter-House Wall.) 83 U.S. Pennsylvania, 458 U.S. 102 S.Ct. 36, 70, (1872) 21 L.Ed. 394 (noting that (1982); 73 L.Ed.2d 835 generally see following the passage of the Thirteenth Co., H. Mayer Jones Alfred Amendment, “[ajmong the first acts of leg- 409, 422-37, 20 L.Ed.2d 1189 adopted by islation several of the States in (1968) (discussing legislative history and the legislative bodies claimed to be historical context of the Civil Act of in their normal relations with the Federal 1866); Dist., Jett v. Indep. Dallas Sch. government, were laws which imposed 701, 711-22, U.S. 2702, 109 S.Ct. 105 upon the colored race onerous disabilities (1989) (same); L.Ed.2d 598 Patterson v. burdens, and and curtailed rights their in Union, McLean Credit 491 U.S. 192- pursuit life, the of liberty, property and to 2363, 105 (1989) 109 S.Ct. L.Ed.2d 132 such an extent that their freedom was of (Brennan, J., concurring in part and dis value”); little see generally Robert J. Kac- senting (same); in part) Robert J. Kaczo zorowski, Congress’s Power to Enforce rowski, Comment, The Provi Enforcement Fourteenth Rights: Amendment Lessons sions. the Civil Act Rights 1866: A of of Federal Remedies the Framers En- from Legislative History Light in Runyon v. of acted, 42 Harv. J. on Legis. McCrary, (1989). 98 Yale L.J. 565 The (2005)' Codes). (discussing the Black legislative history of Rights the Civil Act of 1866 is complicated not without —and In response to the attempts states’ interpretive substantial disagreement. to circumvent the requirements generally of George the Rutherglen, The Im Amendment, Thirteenth probable History 1 section of Section 1981: Clio Civil Confused, Rights Still Bemused and Act of 1866 Sup.Ct. conferred a series Rev. legal 303. The Civil Rights rights, Act including of 1866 the right to con passed pursuant tract, to section of the and to hold convey and property, Amendment, Thirteenth which provided equally to citizens.2 Portions of section 1 2. In after ratification Fourteenth which passage of the followed Fourteenth n Amendments, and Amendment, Fifteenth Congress re-en- significant has caused debate re- (via acted the Civil Act of 1866 garding whether sections 1981 and ap- 1870), Enforcement or, Act of ply instead, and then private codified to actors are limited to it in actors, sections 1977 and 1978 of the pursuant Revised state to the Fourteenth reenactment, Statutes of 1874. Jones, Compare, Amendment. e.g., “make and enforce under the subsumed in section codified are now not in 1981 is section provision contracts” part: states, pertinent with re- particularly complication, without jurisdiction of persons All within conduct” “postformation spect to so-called right have same shall States United or acts, as harassment (i.e., such adverse make Territory to and every State retaliation, an initial con- occur after sue, contracts, parties, to be and enforce established). has relationship been tractual equal and evidence, the full and to give Patterson, 491 U.S. Before its decision proceedings and of all laws benefit L.Ed.2d 109 S.Ct. property and persons security of below), (which the Su- address shall citizens, shall be and enjoyed white clearly determined had preme Court penal- pains, subject punishment, to like retaliatory applied section whether licenses, of ev- taxes, and exactions ties, deciding The closest came conduct. kind, no other. ery and to Hunt- v. Little in Sullivan this issue was 1981(a). portions Other § 42 U.S.C. Park, Inc., 90 S.Ct. ing in section codified are now Sullivan, (1969). 24 L.Ed.2d which states: created nonprofit corporation, Virginia shall States United All citizens playground and community park operate every and State right, same have the residents, re- for the benefit facilities citizens enjoyed by white Territory, as is of a member- assignment a proposed fused sell, lease, inherit, purchase, thereof to man. an African-American ship interest prop- personal and hold, convey real 234-35, The white S.Ct. 400. Id. erty. assign his intended to who homeowner corpo- protested membership interest 1982. U.S.C. refusal, ex- the board rate board’s Park, Hunting Little 2. Sullivan v. Id. at corporation. from the him pelled To Conclude Courts Inc. Leads He, with the along Retal- Against 1981 Protects Section under sec- brought suit assignee, would-be iation initial- Id. The Court and 1982. tions 1981 sec- interpreted has Court Supreme The nature sweeping “broad and ly the noted pro- by broad-based providing 1981 as be afforded tion meant to protection (and 1866,14 racial remedy) against Stat. Act of Rights § hibition federal 1 of the Civil enforcing and Id. making § the was derived.” 27, which 1982 discrimination from See, v. the broad e.g., Runyon 237, Relying on 400. contracts. at 90 S.Ct. 2586, Rights Act of 160, 49 the 96 nature of Civil protective 427 S.Ct. McCrary, U.S. white home- 1866, that (1976); Ry. Ex- Court held the the 415 Johnson L.Ed.2d 459-62, bring a claim 454, standing to had 421 owner U.S. Agency, press (the to sec- statute (1975). companion 1982 1716, 295 44 L.Ed.2d 95 S.Ct. rights): property to pertaining tion are 1981 actions of adverse types of what issue concluding that history legislative ing and 436, (concluding the that "it 2186 at S.Ct. only state ac- intended to reach was adoption of the Act the certainly follow that does not 195-205, 96 tors), at Runyon, 427 U.S. subsequent and or the the Fourteenth Amendment (same). J., (White, dissenting) In S.Ct. 2586 meant Act were readoption of Civil the event, that section any is now well-settled ac- application to state its to limit somehow Patterson, 160, private actors. to applies tion”), McCrary, 427 Runyon U.S. 171-76, (refusing 2586, at 109 S.Ct. L.Ed.2d n. 96 S.Ct. sec- 449-76, that Runyon’s Jones, determination to (same), overturn (1976) 392 U.S. at conduct). private J., (evaluat- applied to (Harlan, dissenting) 88 S.Ct. 1981) (same). expulsion court, however, We turn to Sullivan’s for the This did not advocacy If of Freeman’s cause. that definitively decide this issue in pre- the sanction, by a judg- backed state court Patterson era. See Malhotra v. Cotter & ment, imposed, can be then Sullivan is Co., Cir.1989) punished trying for to vindicate the (noting that although is a “[t]here substan rights protected by of minorities body tial appeals precedent” court of give impetus Such a sanction would holding that section 1981 forbids retalia perpetuation the of racial restrictions on tion, circuit”). there “nothing in this property. why That is said Bar- Jackson, 249, 259, rows v. 346 U.S. 3. Patterson v. McLean Credit Union 97 L.Ed. that the Narrows the Reach of Section 1981 only white owner is at times “the effec- Supreme Court issued its adversary” tive of the unlawful restric- Patterson, decision in which severely cur tive covenant. Under the terms of our tailed the reach of section 1981 claims. Barrows, decision in there can no be The Patterson court held that section 1981 question standing but Sullivan has protections applied exclusively to two to maintain this action. types rights: right to make con Id. at Although, S.Ct. 400. tracts and right to enforce them. 491 Sullivan court not explicitly did use the 176, 109 U.S. at S.Ct. 2363. right The first decision, term “retaliation” in its it was by is violated a “refusal to enter into a clear that' the white landowner’s basis for someone, contract with as well as the offer standing was that he had suffered retalia- only make contract discriminatory asserting tion for rights of another terms.” Id. at 109 S.Ct. 2363. Im (i.e., “punished he had been' trying portantly, however, right “extends minorities”). rights vindicate the Id. only contract, to the formation of a but not (And, indeed, as will be discussed further problems may arise later from the below, interpret- Court later conditions of continuing employment.” Id. precisely ed Sullivan in this manner in 109 S.Ct. 2363. right, The second Birmingham Jackson v. Board Edu- right contracts, to enforce “does not cation, ... beyond extend conduct an employer (2005).) L.Ed.2d 361 impairs employee’s ability to en Sullivan, Following prior to Patter force through legal process his or her es son, general among consensus the cir rights.” 177-78, tablished contract Id. cuits was that broadly prohib section 1981 Thus, 109 S.Ct. 2363. prohi section 1981’s ited discrimination all contractual facets bition did not “postforma include so-called employment relationship, including tion” discriminatory conduct of an employ acts, “postformation” adverse such as re er, including the breach of the terms of the See, taliation. e.g., Choudhury Polytechnic v. imposition contract or of discriminatory York, In st. New 735 F.2d 42- conditions, working such as racial harass (2d Cir.1984) (retaliation 43 cognizable un Patterson, however, ment. Id. at 178-82. 1981); Co., der section v. Conti Oil Goff was silent as to the issue of retaliation. (5th Cir.1982) (same); 678 F.2d 597-99 Inc., though Even only Winston v. Patterson involved ra- Lear-Siegler, 558 F.2d (6th Cir.1977) cial (same); 1268-70 harassment and the term “retaliation” Set Co., 1137, 1147 ser v. Novack appears Inv. 638 F.2d nowhere in opinion, several (8th Cir.1981) (same); London Coopers including v. interpreted circuits— one— (9th Lybrand, & 644 F.2d 819 Cir. Patterson as precluding retaliation claims

395 who retaliates argued that someone employer be such 1981 because section who has a claim of em- now-unpro against person involved purportedly behaviors See, e.g., might ac- conduct. discrimination be ployment postformation tected Co., 909 F.2d ... Home Ins. is interfer- tionable under section Gonzalez Bell, (2d Cir.1990); v. South Cent. ability Carter to make or ing person’s with the (5th Cir.1990); 832, 888-41 footing 912 F.2d same contracts on the enforce Corp., 908 F.2d Motors McKnight v. Gen. could and such interference persons white (7th Cir.1990); Courtney v. 104, 107-10 a violation of section thought be itself Rental, Appliance & Canyon omitted) (em- Television (citations Id. at 1313 1981.” (9th Cir.1990); Inc., F.2d note original). particular Of phasis Inc., Contracting, v. Burke Sherman here, whether Patterson we did not decide (11th Cir.1990); & n. 17 F.2d claims, retaliation definitively precluded Ass’n, Health Group Gersman “may well even hinted that such claims ” (D.C.Cir.1991); Foley v. also see F.2d 1565 Id. survive Patterson. 333, 339 Sys., 355 F.3d Houston Univ. of Malhotra, concurring opinion In a Cir.2003) (5th (noting that Patterson that Patterson Cudahy concluded Judge ju §in change “marked dramatic Spe claims.3 retaliation preclude did not Brown, 902 but see Hicks v. risprudence”); Cudahy Judge observed cifically, (8th Cir.1990) (holding harass parallel “little between there was not address retaliation Patterson did Hence, refusal retaliation. ment and as foreclos not be read claims and should to countenance harassment of Patterson 1981). In claims under ing such only 1981 has claims under section Patterson, we aftermath of immediate application to claims for superficial most Co., 885 F.2d v. Cotter & decided Malhotra J., (Cudahy, at 1314 con retaliation.”4 Id. (7th Cir.1989), in which we observed Hicks, 902 F.2d at 635- curring); see also to fore might thought be that “Patterson solely applied (holding that Patterson could any suggestion that retaliation close racial harassment unique context of 1981. Malho under” section be actionable claims). retaliation preclude and did not tra, Specifically, we F.2d at 1312. anticipat And, comments that prescient and discrimination that “retaliation noted Jackson, result Court’s ed who wrongs. person A white separate are 1497, 161 L.Ed.2d against blacks discrimination opposes Cudahy stated: Judge doing so is not in retaliation for is fired retaliation is a nec- against A prohibition of his against because being discriminated ” omitted). anti-discriminatory adjunct to the (citations essary At the race.... Id. may be employee If an itself. time, provision that “it can also observed same obligations.” binding Mal about the force Commercial Marine also v. Am. 3. See Mozee 1991) (citations Co., hotra, omit Cir. at 1314 n. 1 Serv. may ted). employer punishes not have fore (suggesting that Patterson "Clearly, when an claims). closed all attempting her employee to enforce 'im rights this conduct under section Cudahy "to the limit- Judge also noted that ability her employee's to enforce pairs the here, it would is relevant ed extent Patterson " intriguing rights.' This is an Id. contract support recognition of cause appear to the a re-visit in argument, that we need not but one retaliatory because conduct" of action for retaliation claims light conclusion that of our recognized section 1981’s court Patterson "make section 1981's covered under are now prohibits efforts right to "enforce contracts” provision. and enforce contracts” courts or obstruct “impede access to the adjudicating disputes nonjudicial methods discrimination, complaining fired for criminatory termination would not be a right against Instead, § his not to be discriminated violation of 1981.” Id. at 117. surely analysis he reasoned that the in recognition vitiated.... The Patterson was limited to the right of action for retaliation narrow issue of whether change in the employment conditions of simply applica- 1981 is another following the employment formation straightforward tion of a syllogism: if an harassment)— (specifically, contract racial employee is granted certain substantive but not a termination —violated section rights against his or her employer, the result, 1981. Id. As a Judge Fairchild employer may punish not employee’s concluded that right to make contracts assertion of rights, those since this in protected established section 1981 “the would employer away allow the to take right work, to continue to in the face of right protection by conferred statute. racially discriminatory termination” —a re- Id. at 1314-15. sult unaltered Patterson. Id.But see Judge Cudahy’s view Malhotra did Roadway Rivers v. Express, carry day during this circuit 298, 312, 128 L.Ed.2d 274 post-Patterson brief Shortly era. thereaf (1994) (noting that ‘Patterson did not ter, decision, McKnight we issued our any prior Court; overrule decision of this we, where like most other inter circuits^ rather, it held and therefore established preted Patterson as foreclosing section prior that the decisions of the Courts of coverage claims. See Appeals which read 1981 to cover dis- 107-08; McKnight, 908 F.2d.at see also criminatory contract termination were in- Lab., Von Zuckerstein v. Argonne Nat’l ” correct. (emphasis original)). Cir.1993); 984 F.2d 1471-72 McCarthy Kemper Companies, Ins. Life 4. Rights The Civil Act Super- of 1991 (7th Cir.1991). But see cedes Patterson g Hicks, 902 F.2d at (holdin Whether the majority opinion in Patterson did not foreclose retaliation McKnight or Judge Cudahy’s Judge or claims). In McKnight, plaintiff reading Fairchild’s of Patterson was cor- brought suit under section 1981 and Title rect is now irrelevant because Patterson’s VII, claiming employer that his had dis influence was Unhappy short-lived. against criminated him based on his race Patterson, the result issued in Congress and had fired him in retaliation for com legislatively superceded the Patterson de- plaining about discrimination. by enacting cision Rights the Civil Act of McKnight, 908 F.2d at Although 107-08. Rivers, 1991. 305-06, 511 U.S. at we noted that “Patterson was a racial- 5,n. (noting S.Ct. 1510 that the Civil harassment case discharge rather than a Rights Act of 1991 Congres- was based on case,” we nonetheless held that Patterson’s sional and disapproval Presidential “wide-ranging reexamination of section decision); Patterson Walker v. Abbott (as us) 1981 indicated it seems to that Labs., (7th Cir.2003) racially claims of motivated discharge are (noting however, “Congress, quickly not actionable under that statute.” Id. at responded [to Patterson ] with the Civil 1991, which, Rights alia, Act of inter over- however,

Judge Fairchild,, Patterson”). concurred and ruled legislative history dissented part from the majority’s opin- of the Civil Act of 1991 makes clear ion, because, view, in his Patterson “did that Congress was dissatisfied with the not expressly racially assert that a dis- Court’s narrow reading of section Care, 163 F.3d Legal Serv. claims that strongly curtailed which Andrews, (2d Cir.1998); 140 F.3d at 1412- pre-Patterson in the cognizable had been Anheuser-Busch, 13; Barge also Rivers, n. see at 306 See period. (list- (8th Cir.1996) 101-315, F.3d (citing S.Rep. No. of prima for a case (1990)). ing the elements things, other Among pp. facie 1981). in- (b) under section For added subsection Congress Andrews, stance, in the Eleventh Circuit that section made clear which Patterson, circuits in- prior noted broadly to include all as- to be read was and en- 1981’s “make terpreting section relationship be- contractual pects that it provisions had held force contracts” including postformation parties, tween claims for an “encompassed employee’s conduct, had concluded Patterson which during race-based retaliation employer’s 1981: under section not actionable contract.” 140 F.3d employment section, the term of this purposes For that while Patterson 1410. It observed includes contracts” “make and enforce many circuit court de- question into “drew modification, making, performance, recognizing post-hiring discrimina- cisions contracts, and termination and 1981,” under section the Civil tion claims benefits, privileges, enjoyment of all lim- whatever Rights Act of 1991 reversed terms, of the contractual conditions liability imposing placed Patterson its relationship. Id. at 1410-12. postformation for conduct. 1981(b). legislative And the 42 U.S.C. result, concluded the Eleventh Circuit As con- to this subsection history pertaining un- claims remained viable that retaliation intended retaliation Congress firms at 1412. section 1981.Id. der An- See provision. under this be included Hosp., 140 F.3d Lakeshore Rehab. drews v. Is Humphries’s Retaliation Claim B. Cir.1998) (11th (citing 1411 n. 12 Section 1981 Cognizable Under 40(1), 1st Cong., 102d Sess. H.R.Rep. No. 1981 Protects 1. We Hold Section (1991), reprinted as Against Retaliation states, 549, 630, which U.S.C.C.A.N. (b) set forth subsection

part, list “[t]he we opportunity the first This is rather than illustrative intended to be of the Civil had since the enactment have employment In the context exhaustive. to re-visit the issue Act of 1991 Rights in- discrimination, example, this would retaliatory all section 1981 forbids whether to, clude, limited claims not be but con Barrel discharge claims.5 Cracker demotion, harassment, pro- discharge, already in Hart has that our decision tends retaliation, motion, transfer, hiring.” claims under section foreclosed retaliation added)). (emphasis Hart, at 866. This is 1981. See Unfortunately, Hart has al incorrect. of 1991 led several Rights Act The Civil propo cited for this inaccurate ready been (again) and to reverse course circuits Roche v. Denk & See Williamson section 1981. sition. claims under allow retaliation Builders, Inc., 04 C 2006 WL No. Sys., 355 Houston Foley v. Univ. 2006) (cit- (N.D.Ill. July (5th *4 Cir.2003); Hawkins v. Lab., retroac- Rights did not have Act of 1991 Argonne Civil Nat’l In Von Zuckerstein that, noted, however, Cir.1993) We also reach. tive 1472 n. result, the few in represents one of “this case 1991 had Civil Act of noted that the Patterson, apply Patterson standards.” ap we still but nonetheless "overruled” Id. holding because the plied the of Patterson ing proposition Hart for the that “the provides § Sev that Act prohibition that 1981’s enth Circuit has made clear against that retalia racial discrimination the making tion claim is not viable under Section and enforcement of applies contracts to all 1981”); Franklin v. Steel Corp., U.S. phases No. and incidents of the contractual 2:04 CV 2006 WL at *2 relationship, including discriminatory con (N.D.Ind. 2006) (same); Apr.7, terminations”). Welzel v. Now, tract that, it may be Bernstein, (D.D.C. 110, 117 F.Supp.2d strictly speaking, a discriminatory “termi 2006) (citing proposition Hart for the nation of contract” is not the thing same as circuit, circuits, precludes unlike other a retaliatory instance, discharge ana —for 1981). retaliation claims under lytically, retaliation need not have a dis analysis Our in Hart was limited to the criminatory intent behind it. See Malho narrow issue of whether an individual who tra, 1312; Jackson, 885 F.2d at at U.S. subject was not the of discrimination could 185-87, 125 (Thomas, J., S.Ct. 1497 dis assert claims of retaliation for complaining senting). But the Rights Civil Act of 1991 about the discrimination of others.6 We dispensed with this heightened degree of held that protect section 1981 did not formalism, and legislative history con against such circumstances. Congress firms that intended retaliation to Hart, 426 866. But Hart no has be included within section 1981. See An here, application to the facts where the drews, 140 result, F.3d at 1411 n. 12. As a plaintiff plainly asserting retaliation whatever concerns Patterson raised about stemming discriminatory from acts target postformation retaliatory nature of dis (And, ing below, him. as we shall see even charges evaporated with passage Hart’s limited holding longer good is no Rights id.; the Civil Act of 1991. See law in light of the Court’s Jack Rivers, 6, 114 306 n. S.Ct. 1510. decision.) son Rivers, But see 511 U.S. at 309 n. S.Ct. 1510 (noting that the

Thus, “legislative his the issue before us is wheth tory of the 1991 Act reveals conflicting er section by as amended the Civil § views about whether would Act of ‘restore’ applies to claims of or instead ‘enlarge’ the original scope retaliation. We hold that does. The 1981”) (“A statute, and id. at plain text of S.Ct. 1510 as amended legislative response necessarily makes clear that does not section 1981 encom passes contracts,” Congress indicate that judicial “termination of viewed the decision ‘wrongly there can be no retaliatory doubt that a decided’ as an inter discharge pretive Congress may is indeed a termination matter. of the view the employment Indeed, judicial contract.7 decision entirely the Su as an correct preme subsequently Court interpreted reading prior may law—or it be alto provisions gether amended of section pro 1981 as indifferent to the decision’s techni tecting against “discriminatory contract cal may merits —but nevertheless decide Rivers, terminations.” 511 U.S. at amended, the old law should be but future.”). S.Ct. 1510 (stating that “Section 101 only for the initially ment) Our decision Hart was plaintiff's issued as employment here does order, but, unpublished upon motion to preclude plaintiff relying from on sec- publish bar, it filed a member of the provisions tion pertaining 1981's to contracts. published order was opinion. converted to a Walker, 340 F.3d at (holding employees at-will can state claims under sec- (i.e., 7. The at-will nature no formal written 1981). specific contract and employ- no terms of complaint: response to the nature with Holding Is Consistent

2. Our allegation Board an of sex discrimination. We Birmingham Jackson of Education, Affirmed Sulli- funding recipient that when a conclude which Validity Continuing against person van’s because he retaliates discrimination, this con- complains of sex on this were unclear if the statute Even “on stitutes intentional “discrimination” all, specific word “retalia- issue—after sex,” in of IX. basis of violation Title appear does not still tion” leg- turning pertinent to the without —and (citations 173-74, 125 Id. at S.Ct. ' re- Court’s history, islative omitted) original). (emphasis Birmingham decision Jackson cent heavily on its court relied The Jackson Education, 167, 544 U.S. Board of Sullivan, 229, 90 (2005) 396 U.S. prior decision compels 1497,161 L.Ed.2d S.Ct. Jackson, where it held male L.Ed.2d S.Ct. result. the same statute, sec high companion school basketball 1981’s girls’ of a that section coach of Edu- Birmingham Board prohibits sued the which discrimination team Title IX of the Education property rights, cation contained respect- claiming that of Amendments against retaliation. implied prohibition an complain- him for against Board retaliated Jackson, 176, 125 1497. 544 U.S. at S.Ct. high in the discrimination ing about sex interpreted the Jackson -court Specifically, 171, 125 Id. at program. athletic school’s 1982’s holding that section Sullivan prohibits IX sex discrim- 1497. Title S.Ct. discrimina prohibition on racial general of federal education by recipients ination which, tion, makes no like section but, it contains like section funding, retaliation, nonetheless covered of mention Id. at mention of “retaliation.” express no who advocate the against “retaliation those Instead, Title IX 125 S.Ct. by prohibi that groups protected rights The Su- simply prohibits “discrimination.” court also ob Id. The Jackson tion.” however, Court, that determined preme objective pre statutory that the served on discrimination proscription Title IX’s severely would be venting discrimination (and implied) acts necessarily subsumed not retaliatory practices if were hampered retaliation, dif- simply it viewed as permitted recipients “If were also banned: of discrimination: ferent forms witness freely, who to retaliate individuals person because against Retaliation it, report loathe to would be discrimination sex dis- complained has person that might IX of Title violations and all manner form of intention- crimination is another Id. at as a result.” go unremedied encompassed by discrimination al sex Sullivan, (citing 396 U.S. at action. Re- cause of private Title IX’s 400). “Indeed, if retaliation 90 S.Ct. definition, is, by an intentional taliation enforce Title IX’s prohibited, were a form of “discrimination” act. It is unravel.” Id. scheme would ment complainant being sub- because Thus,'the to have appears court Jackson treatment. More- jected to differential “re- jettisoned prior our observation over, “on the is discrimination separate are and discrimination it is an intentional taliation because basis sex” VII], VII) has made 2000e-3(a) (Title or because he (pro- [Title tice 42 U.S.C. 8. Cf. testified, assisted, participated in employment charge, or viding is an “unlawful against employer proceeding, to retaliate practice” investigation, for an any in an manner any “opposed employee he has because hearing.”). or prac- employment practice an unlawful made Malhotra, 1312; F.2d at wrongs.” specific discriminatory to list practices, Cf. Jackson, 185-87, see specific and omits references to retaliation. (Thomas, J., dissenting) (noting 175-76,125 See id. at S.Ct. 1497. is not a claim of “[a] claim of retaliation Indeed, the fact that Title IX omitted discrimination on the basis of sex” and that retaliation, any mention though of even therefore cannot be said to “Retaliation 1972, years was enacted in eight after Title anyone’s be discrimination on the basis of specific VII and its inclusion of retaliation sex, may because a retaliation claim suc- provisions, did not trouble the Jackson ceed where no sex discrimination ever took court nor lead it to Congress conclude that Instead, place”). purpose at least for the must have intended to exclude retaliation interpreting statutory broad discrimina- from coverage. Title IX’s See id. To the prohibitions specific tion that omit retalia- contrary, the Court looked to its Sullivan provisions, Supreme tion has Court (which years decision was issued three be- simply determined that retaliation is a dif- IX) passage fore the of Title and concluded discrimination, ferent form and one that it provided “a valuable context for prohibitions is included within broad-based 176, understanding” Title IX. Id. at Jackson, discrimination. U.S. Specifically, S.Ct. 1497. the Court stated 175, (distinguishing at 125 S.Ct. 1497 be- only “it is not appropriate but also realistic VII, the structure of Title tween. to presume Congress was thoroughly express provisions, retaliation includes and familiar with and that it expect- [Sullivan ] action). “implied” Title IX’s cause of ed its enactment Title [of IX] to be inter- Moreover, the court Jackson noted that a preted conformity with (quot- Id. [it].” targeting statute discrimination would nec- Chi, ing Cannon v. Univ. U.S. essarily if retaliatory be undercut acts (1979)). 99 S.Ct. 60 L.Ed.2d 560 purview. evaded its Id. at Thus, the foundation of the Jackson de- although directly 1497. And Jackson tar- IX, squarely cision is built geted upon the Court’s meaningful Title there is no prior analytic determination in distinction that renders con- Sullivan that sec- tion 1 of Rights clusion in the Civil Act of inapplicable Jackson to section 1866 was is, IX, 1981.9 intended as prohibition That like Title section 1981 a broad on discrim- broadly prohibits (although discrimination ination that contained an implied cause of IX, Id.; only roughly Sullivan, Title action century enacted for retaliation. see (“A after section contains the more con- 396 90 S.Ct. 400 narrow “discrimination”), temporary term of fails construction of language colleague argues 9. Our in dissent that the on behalf of a black lessee in Sullivan was analysis particularized in Jackson was to Title race.”). discrimination on the basis of There- applicable IX and thus to our discussion fore, reasoning depend upon Jackson's did not Jackson, disagree. of section 1981. We IX, unique features to Title and Jackson has large part upon Court relied in implications involving for cases section 1982 Sullivan, concerning a case section 1982. companion and its statute —section 1981. See, Jackson, e.g., 544 U.S. at 125 S.Ct. Moreover, upon Jackson Court’s reliance ("Congress just enacted Title IX three continuing Sullivan affirms Sullivans validi- decided, years after Sullivan was and accord- ty. Irrespective impression of our of Sulli- ingly provides that decision valuable context method, then, interpretive van’s we are bound statute.”); understanding for id. at by holding. holding, part, its That leads us ("Retaliation S.Ct. 1497 ad- Jackson’s (as every to conclude has circuit to address vocacy rights girls’, of the basketball question) cogni- that a retaliation claim is team in this case is discrimination on the zable under section 1981. sex, just advocacy basis of as retaliation for that retaliation claims uniformly conclude with the broad quite inconsistent would be protection cognizable are under section 1981. See nature of sweeping 339; Hawkins, § 1 of Foley, afforded the Civil 355 F.3d at to be meant Andrews, 1410-11; 693; from which Act of Stat. 140 F.3d at Rights derived.”). there can be And only § 1982 was at 259. Not is this Barge, 87 F.3d examination of that Sullivan’s Rights no doubt Act of compelled by result the Civil implied prohi- respect section 1982 corresponding Supreme Court readily to its applies bitions authority, but it is also the sensible result. statute, given companion section 1981 allows unfettered To hold that simply are carve- 1981 and 1982 sections circumven- retaliation is to invite wholesale section of the Civil outs of the same (and undermining) of the eventual 1866, sharing identical historical Act of statute, in- perverse and it would create See, e.g., Bldg. and concerns. Gen. origins employer complain- for the to fire centives Ass’n, Pennsylvania, Inc. v. Contractors possible thereby to limit quickly ants as 375, 384, 102 73 S.Ct. (or avoid) entirely damages under section (1982) (noting leg- the shared L.Ed.2d 835 (not- See, Goff, at e.g., 678 F.2d section 1981 and history between islative that “Section 1981 would become ing 1982); Runyon, “companion” section its employer if an could fire an meaningless 170-71, (noting 96 S.Ct. 2586 at U.S. his employee attempting to enforce Jones, holding in 392 U.S. at that the statute”). rights under that This is not to pertaining section 88 S.Ct. 2186 issue, insignificant as section 1981 dam- necessarily given implicated than ages often have more teeth those history); Tillman legislative their shared available under Title VII. Ass’n, Inc., Recreation v. Wheaton-Haven observing no traction in There is 431, 440, 93 S.Ct. U.S. back-up competing or provides Title VII (1973) (holding light that “[i]n L.Ed.2d 403 statutory regime plaintiff. gen- to the See interrelationship” between of the historical IMBS, Inc., 368 F.3d erally Randolph 1982, there was no rea- sections 1981 and Cir.2004) (7th (noting signifi- differently the sections son to construe in the two overlap cant and differences solely the basis that the defendant schemes). Although the sub- statutory see also Winston v. private party); procedural inconsis- overlap and stantive 1266, Lear-Siegler, Title between section 1981 and VII tencies Cir.1977) (6th that “in view of (holding in Patter- concerns animated the Court’s being 1981 and 1982 derived both Sections son, par- Congress is not bothered and in Rights Act of 1866 from Civil Johnson, 421 statutory scheme. See allel in- similarity language in and view of the (“ legisla- 1716 ‘[T]he U.S. at tent, apply not to no reason is seen a con- history of Title VII manifests tive in interpreting Sec- rationale Sullivan intent to allow an individual gressional 1981”); v. Eastman Kodak DeMatteis (2d Cir.1975) rights under independently his Co., pursue 312 n. 9 state (same). applicable Title and other both VII particular, Con- federal statutes.’ and Aligned and Holding Is Sensible 3. Our available gress noted ‘that the remedies Weight Authority with the are co-ex- individual under Title VII right to sue with the indiv[i]dual’s tensive join the other circuits Accordingly, we Rights provisions of the Civil post- this issue in the that have addressed that the and Act of U.S.C. Act of 1991 of whom Civil era—all Division, procedures augment Cir.1997), each other and two 103 F.3d 956 ”) mutually (quoting Al- are not exclusive.’ which held that a employee white who Co., 415 exander v. Gardner-Denver U.S. opposed racially derogatory co-worker’s H.R.Rep. 94 S.Ct. 1011 and No. 92- bring remark could not a section 1981 Patterson, (1971)); at 19 see also retaliation claim because he did not con- 201-12, (Brennan, 109 S.Ct. 2363 tend that the employer “discriminated (cit- J., concurring dissenting part) and (i:e., against him because he was white” ing discussing legislative history indi- discrimination). did not claim direct Id. at cating Congress intended to maintain decision, however, 961. The Little cited no “separate, section 1981 and Title VII as authority for this proposition, nor did it distinct, independent”); Randolph, provide reasoning for this declaration.10 at 732. Nor is it our role likely placed Id. We too much reliance on attempt to harmonize these statutes or Little, given holding squarely that its run's particular seek to channel causes of action against Court’s Sullivan de- Congress toward one or the other statute. cision, as well as subsequent the Court’s unmistakably provided sepa- has for two Jackson, decision which further solidi- redress, instances, rate regimes many Sullivan, holding. fied Sullivan’s discriminatory identical practices 400; Jackson, U.S. at 90 S.Ct. employment context. The resolution of 173-74, 1497; U.S. at 125 S.Ct. see also any resulting inefficiencies from the exis- Seldin, Worth v. U.S. n. (but different) parallel quite tence of two (1975) 45 L.Ed.2d (citing statutory regimes that cover similar for proposition Sullivan the that sections harms, but contain differing procedural re- 1981 and are examples “excep- quirements, periods, limitations and reme- parties tions” that allow putative “to raise dies, Congress, resides with not us. rights parties,” including of third such sit- party uations where a “punished” is for 4. We Overturn Hart to the Extent entering relationship into a contractual that it Conflicts with Sullivan and protected with an individual Jackson the statute). Jackson, which was issued after must' briefly We now return to Little, appeal but while the Hart Hart, where we held that employ a white pending, made clear that prohib- Sullivan alleged ee who that he suffered retaliation its “retaliation against those who advocate supporting for charge his co-worker’s rights groups protected” by section discrimination could not maintain such a Jackson, 1 of the Civil Act of 1866. claim because “encompasses section 1981 Thus, 544 U.S. at 125 S.Ct. 1497. only racial discrimination on account of the Sullivan stands for proposition that a plaintiffs race and pro does not include a “white owner could maintain his pri- own against hibition retaliation opposing for ra Hart, § vate cause of action under if cial discrimination.” he 426 F.3d at could holding, solely ‘punished try- 866. In so we show that he was for relied on the ” ing rights Eleventh Circuit’s decision in to vindicate the Little v. of minorities.’ Technologies, United Carrier Transicold Id. at 176 n. 125 S.Ct. 1497. Aside from addition, the Eleventh Circuit subse- aon section 1981 retaliation claim based on 10. quently may allegations hinted that they refusing Little its conflict with were fired for Multipurpose, participate decision in Jackson v. employer’s Motel 6 in an discrimination Inc., (11th Cir.1997), Andrews, against 130 F.3d 999 non-white See customers. employees proceed held that a class of could 140 F.3d at 1412 n. 14. Jackson, advocating for tiff has suffered retaliation conflicting with Sullivan minority view Little decision plainly rights protected of those under section Jackson, great weight among 179-80, the circuits: 1981. who suffer authority is that individuals 1497. the racial discrimi- opposing

retaliation standing to by others have nation suffered of Re- Humphries C. Presented Claim claims under section assert retaliation taliation Sufficient to Survive Sum- 1981.11 mary Judgment result, it is clear that our decision As a Turning to the merits of Hum- scrutiny under Sul- in Hart cannot survive phries’s claim under livan, Jack- by the Court expanded generally applied have the same Moreover, son. out-of-step decision is our prima facie to discrimination requirements in the vast with the outcomes reached brought claims under Title VII and section outside of our circuit. majority of cases See, e.g., Dep’t Alexander v. Wis. 1981. holding our Accordingly, we overrule Servs., Family Health & now hold Hart on this limited issue.12 We (7th Cir.2001) (applying same standard a cause of plaintiff may maintain plain- Title VII and section 1981 discrimination action under section where See, satisfy protected Vergnes can in order to e.g., v. Seekonk Water American Des (1st 1979) claims[,]” Dist., (holding requirement but rather Cir. status of his corporation standing bring section plaintiff's advocacy had on behalf of minorities § and that "to invoke 1981 or 1981 claim allege was sufficient to retaliation under sec be a member of the 1982 one need not 1981); Lear-Siegler, Winston v. protected by class the statute and one racial (6th Cir.1977) (white plaintiff identify any specific need not even be able standing had under section 1981 for claim may the class who suffered or member of employer objected fired him because he discrimination”); v. Eastman suffer DeMatteis discriminatory discharge of an African- 306, Cir.1975) Co., (2d 511 F.2d 312 Kodak co-worker); v. Total Petro American Skinner (white plaintiff bring claim could section 1981 leum, Inc., (10th Cir. 859 F.2d 1446-47 employer upon allegation based that his 1988) (white employee helping Afri fired for " solely because 'forced' him into retirement file an EEOC claim can-American co-worker person”); a he had sold his house to black 1981); a claim under section see could state Co., Forge 629 F.2d 906- Liotta v. Nat’l J., Malhotra, (Cudahy, 885 at also F.2d 1316 (3d 1980) (summary judgment inap Cir. person concurring) (noting "a white who propriate of fact re where material issues rights discharged espousing for the of mi brought regarding section 1981 claim mained employer the act norities could establish that discharged plaintiff who claimed he was (as discriminatory required to ed with intent supporting rights co of African-American 1981); a claim under section state Sch., workers); Fiedler v. Marumsco Christian another, at discrimination was directed racial (4th (white Cir.1980) 631 F.2d directly plaintiff, at the is irrele rather than protected student under section 1981 from vant, suffering plaintiff since it is the who is by school because of her associa employer’s due to the racial discrimination” schoolmate); v. tion with a black Pinkard citing other cir Sullivan and cases from Pullman-Standard, Pullman, a Div. of support). cuits (5th 1982) Cir. Unit B 678 F.2d (retaliatory discharge claim allowed under prior opinion a overrules 12. Because plaintiff 1981 where evidence showed case, advance of it has been circulated in discharged advocacy for lawful of minori was regu- publication judges court in to all of this ty rights); and union Johnson v. Univ. of Cincinnati, Cir.2000) pursuant to Seventh Circuit (6th lar active service 215 F.3d 40(e). majority favor a rehear- Rule A did not (holding clear under "well-settled” that it was overruling question ing of alleged en banc on the plaintiff "need not have law that a Hart, 426 F.3d 863. upon race an Afri- discrimination based his claims); opposing employ must that after City Wayne, v. Fort show Johnson (“Al- (7th Cir.1996) Ind., he, discriminatory practice only F.3d er’s and Title VII differ though section 1981 any similarly employee not situated who they proscribe, types discrimination, of discrimination complain did and elements of the proof the methods subjected materially action adverse identical.”); essentially Randle v. case are though performing job he was his even Telecomms., Inc., 876 F.2d LaSalle satisfactory Sylvester manner. See (7th Cir.1989) (“It settled that is well Ill., Inc., Villages SOS Children’s proof applicable the methods and order (7th White, Cir.2006); treatment under disparate to a claim of Thus, the indirect “method of estab equally availing under Title VII are lishing prima requires proof facie case Patterson, 1981.”); 491 U.S. at see also similarly employees both of situated and of (applying McDonnell job plaintiffs performing his satisfacto Douglas framework to section 1981 rily.” Sylvester, 453 F.3d at 902. claims). to apply We see no reason differ- Under the district court’s view requirements ent between the statutes (which, naturally, Barrel Cracker echoes claims. Fo- regard to retaliation appeal), Humphries’s prima facie case ley, (approving n. 8 because, reasons, among failed other he claims applied same standard to retaliation present did not sufficient evidence to meet 1981);

under Title VII and section see also similarly requirement under situated Labor, 400 Dep’t Hasan v. According indirect method.13 (7th Cir.2005) (applying Ti- Barrel, similarly compa Cracker situated retalia- prima requirements tle'VII facie supervisors, rators must have the same brought Energy under the Re- cases duties, job work per same same Act); organization I.B.M. Larimer histories, formance and must have en Cir.2004) Corp., 370 F.3d gaged the same bad conduct as the (applying prima require- Title VII facie words, plaintiff. they other must be ERISA). claim under ments to retaliation and, essentially plaintiff, identical to the To overcome Barrel’s Cracker view, Humphries’s Cracker Barrel’s summary judgment, Humphries motion for Dowd, fail comparators, two Stinnett and may proceed under either the direct or that test. indirect v. Ind. Dep’t methods. See Sitar similarly view of our Cracker Barrel’s (7th Transp., 344 F.3d 728 Cir. of in- requirement rigid situated is too and 2003) (citing City Indianapolis Stone v. of requirement (7th flexible. This “should be Div., Pub. 281 F.3d 640 Cir. Util. applied mechanically inflexibly.” or Hull 2002)). method, Hum- Under the direct Trailers, LLC, (1) Stoughton v. 445 F.3d phries present must direct evidence of (7th Cir.2006). True, (2) 952 we have some- statutorily protected.activity; a mate similarly require- times stated the situated rially employ adverse action taken er; (3) ment in the “must” terms Cracker a causal connection between Id.; argues, Barrel but more sensitive read- Burlington the two. Northern & —White, U.S. -, ing of our cases indicates that we have Ry. Santa Fe Co. v. 2405, 2415, similarly 126 often stated that the situated re- 165 L.Ed.2d 345 (2006). method, quirement “normally showing Under the indirect he entails a Humphries requirements 13. We need not decide whether because he meets the of the enough has method. evidence under the direct method indirect

405 619). Put a way, purpose dealt with the different employees the two subject similarly to the same requirement were of the situated is to supervisor, same standards, engaged variables, had similar con confounding eliminate such as differentiating or miti roles, histories, such differing performance duct without or distinguish circumstances as would gating decision-making personnel, helps employer’s treatment their conduct or the independent isolate the critical variable: Kimberly-Clark Corp. of them.” Radue v. complaints about discrimination. (7th Cir.2000) (em 612, 617-18 219 F.3d Hull, 445 F.3d at 951-52. added); v. Bd. Trs.

phasis see also Keri of important sight It is not to lose of the (7th Univ., Purdue 458 F.3d of aspect inquiry. common-sense of this It is Potter, Cir.2006); 400 F.3d Ezell unyielding, requirement not an inflexible (7th Cir.2005); McDonald v. 1049-50 Vill. requires mapping near one-to-one be- (7th Winnetka, F.3d Cir. of employees always tween can —distinctions Auth., 2004); Transit Lucas v. Chi. job in particular per- be found duties or (7th Cir.2004); Appelbaum F.3d or nature of formance histories Dist., Sewerage v. Milwaukee Metro. See, Ezell, alleged transgressions. e.g., (7th Cir.2003); Peters v. F.3d Now, may 400 F.3d at 1050. be that the Co., Operating Renaissance Hotel similarity necessary may vary degree (7th Cir.2002); Snipes v. Ill. F.3d potential accordance with the size (7th Carr., Dep’t Cir. as well as to the comparator pool, extent Co., 2002); Country Peele v. Mut. Ins. cherry-picks plaintiff which the would-be (7th Cir.2002). 319, 330 In other F.3d comparators, see Ind. Harbor Crawford words, emphasized that the simi we have Co., (7th R.R. Belt larly inquiry is a flexible one that situated Cir.2006), the fundamental issue re- but factors, “all the number considers relevant sig- mains whether such distinctions are so context of the depends of which they comparison nificant that render the Radue, case.” 219 F.3d at “As words, effectively In useless. other factors, employee an need not the relevant inquiry simply asks whether there are suf- him complete identity comparing show key commonalities on the variables ficient but he employee, self to the better treated plaintiff between the and the would-be similarity.” must show substantial Id. comparator type compari- to allow the 618; Bd. Trs. see also Goodwin v. that, together taken with the other son Ill., Cir. Univ. of evidence, jury prima facie would allow Ezell, 2006); 400 F.3d at 1050. of discrimination or re- reach inference addition, pro our case law does not need not plaintiff taliation —recall that the any “magic determining vide formula for prove anything stage. at this similarly whether someone is situated.” Establishing prima a case should facie Police, Chavez v. Ill. State requirement: “the not be such an onerous Cir.2001) (7th (discussing similarly the plaintiffs prima evidence on the facie case protec requirement equal situated the overwhelming need not be or even des- context). Instead, apply courts should rather, the need prevail; plaintiff tined to inquiry factual a “common-sense” —essen only ‘some evidence from which present tially, enough features are there common took ad- employer can infer that the one the individuals to allow a mean between against plaintiff action the on the v. verse ingful comparison? (citing Id. Freeman Dist., statutorily proscribed criteri- basis of Madison Metro. Sch. 231 F.3d ” (7th Cir.2000) Radue, Quanex Corp., Bellaver v. 200 F.3d and 219 F.3d on.’ Cir.2000) (7th addition, policy. v. of Cracker Barrel In (quoting Leffel (7th Servs., Humphries 113 F.3d evidence that Valley presented Fin. Stin- Cir.1997) (also (the noting prima that the facie nett’s termination of Green immediate applied rigidly”)); not be burdens “should precursor Humphries’s event connected to Cmty. v. Dep’t termination) (under see also Tex. impermissible Affairs Burdine, 248, 253, 101 policy, only general Cracker Barrel man- (1981) (“The burden of L.Ed.2d 207 agers, managers, not associate can fire disparate facie case of establishing prima employees). anything, If the record tends onerous.”). prima treatment is not “The suggest Humphries generally that per- case, prong, its fourth specifically facie than In slightly formed better Stinnett. identify the are meant to situations where addition, Humphries presented evidence employer, ... if by ‘actions taken the the Stinnett also left safe unlocked. unexplained, likely than not are more Specifically, Humphries testified that Stin- impermissible based on consideration of (and Dowd) routinely nett left the safe ” Co., factors.’ v. Budd 66 F.3d Collier very unlocked—the basis for which Hum- (7th Cir.1995) (quoting Allen fired, phries was and one Hum- Diebold, Inc., Cir. phries hotly disputes. 1994)). inquiry But method of estab Douglas lished was “never McDonnell Cracker Barrel seeks to distin mechanized, rigid, intended to or ritualistic.” be guish grounds Stinnett that he left Waters, Corp. Fur nco Const. fie., the safe during daytime unlocked 57 L.Ed.2d hours) Humphries business whereas left it (1978). all, After our intention in es fie., during nighttime unlocked over tablishing similarly require situated night). This is distinction without much plaintiffs ment was to the “boost” provide Although arguments difference. can be Douglas the McDonnell framework greater potential made as to relative harm Stone, intended. See leaving the safe unlocked at night, the contrary issue remains that it was legal policy back

With policy Cracker Barrel to leave the safe mind, drop we now turn to the would-be any unlocked and point unattended dur It comparators this case. is clear that ing day. importantly, the 24-hour More comparator. Stinnett was a sufficient He argument Cracker Barrel’s here reflects manager position held the same associate precisely type argument of formalistic duties, Humphries, with the same in carry day at summary should cluding responsibility ensuring the safe judgment. Humphries required was not was locked at all times. He shared the identity wrongful to show an conduct: (Dowd) supervisor same and same ultimate Ezell, “the (Christensen). law is not this narrow.” decisionmaker Like Hum- enough F.3d at 1050. It was to show phries, past negative Stinnett had received “similar —not evaluations, identical' —conduct” and this performance including low rat surely qualifies under that standard. Id. ings protection” categories. on “asset addition, sight To find otherwise is to lose of Humphries presented competent (both big-picture, testimony perspective. common-sense his own and that of a coworker) Thus, titles, duties, job that Hum- terms of work Stinnett —-like supervisor, phries performance a to and work histo used so-called Gold Card —had ries, pay Humphries for a meal that a had com Stinnett and have more customer about, plained apparently similarity. single than sufficient A compa- contravention (and do; numerosity required.14 is not rator will elaborate less favorable to- Cracker Goodwin, Ezell, Barrel) See, 619; e.g., 442 F.3d at documentary record of Hum- phries’s 400 F.3d at 1050. complaints. Finally, there was ev- idence in tending the record that show also Cracker Barrel contends that transgressions similar were not sufficient legitimate it established that it had a rea similarly to fire other employees situated firing Humphries, son for and that Hum- complain who did not of discrimination. phries failed to show that the reason that Menard, Inc., generally Curry provided discharge Cracker Barrel for his (7th Cir.2001) F.3d (holding that a lie). (i.e., pretext a See Forrester v. showing similarly that employees situated Rauland-Borg Corp., 453 F.3d 417-19 were treated differently may be enough to (7th Cir.2006) (discussing general require pretext). establish pretext). ments to establish On these is say This is not to that merely pointing to sues, agree with the district court’s an employer’s shoddy investigatory efforts determination that replete record is pretext. sufficient to establish Errone with contested material facts pertaining to (but believed) ous reasons for terminating Humphries’s performance and the work employee are not pretex- tantamount to nature of Christensen’s beliefs when he Forrester, tual reasons. See 453 F.3d at Humphries. terminated anAs initial mat 419; Revenue, Dep’t Little v. Ill. ter, Humphries that contends he did not Cir.2004). But, unattended, leave the safe and the evi here, under the circumstances there was implicating comprised solely dence him is sufficient other circumstantial evidence in testimony very from Stinnett —the support the record to a reasonable infer Humphries targeted individual in his final Humphries by ence that was “set-up” Stin- complaint of discrimination. And there is (in nett tandem with Dowd and Christen testimony in the record that a co-worker sen), Sylvester, see 453 F.3d at Stinnett and acting observed Dowd differ that purported his act of leaving bad (less ently deferentially) toward Hum- safe justify unlocked was a fabrication to phries just prior to firing, his and that this sense, firing. his In this the quality of co-worker warned specifically Humphries investigation may Christensen’s have some about Stinnett and Dowd because she be on bearing the truthfulness of Cracker lieved that their indicated behavior proffered Barrel’s reasons for terminating they “up something were to harm Hum- short, Humphries. these are the sort of addition, phries.” In prior firing Hum- disputed factual jury issues should phries, appears that Christensen con sort out. ducted no investigation veracity into the note, Stinnett’s claim. remand, He did not interview Humphries As final Humphries; simply he credited Stinnett’s only will have his claim of retaliation. We story. Finally, timing Humphries’s agree with the district determina- court’s (forfeited firing is suspicious: he was fired one week tion he waived would be the term) complained after he Christensen about better claim his discrimination discriminatory practices day prior devoting only argument one skeletal re- Dowd, meeting which, to a scheduled sponse to Cracker Barrel’s motion for presumably summary judgment. Although would have created a more Humphries 14. Because we requisite conclude the Stinnett was an whether Dowd fits the criteria. adequate comparator, we need not address dealing with that all federal statutes sion his well-devel- incorporate to attempt did prohibit relation retalia- employment retalia- to the pertaining oped arguments tion. overlap claim, is substantial and there require- facie prima regard to principal three rea- gave The Justices claims, he did the two between ments (1) in The for their decision Jackson. sons however, Hum- appeal, nothing more. On ambi- has sufficient word “discrimination” first time for the phries addresses reading that includes an permit guity Bar- and Cracker replacement, issue of his 173-74, at anti-retaliation norm. U.S. arguments as a series of rel outlines 1497.(2) IX was enacted in Title 125 S.Ct. and warn- reprimands why Humphries’s became norms after anti-retaliation materially adverse ings do not constitute common, making it to resolve the sensible argu- these actions. None employment reading. in favor of this ambiguity court by the district were reached ments 1497.(3) Lack of an 125 S.Ct. U.S. briefing in the nor flushed out —this make it would too anti-retaliation norm raising parties on why we insist precisely to under- easy programs for educational Given pertinent arguments all below. in Ti- rules principal mine the substantive for retalia- claim is one Humphries’s core anyone who tried by getting tle IX rid tion, applying in our inequity little there is 180-81, 125 U.S. at to enforce them. 544 particular rule to typical forfeiture S.Ct. 1497. claim. applies to 42 of these None reasons subject today’s deci- § U.S.C. III. CONCLUSION (1) does “discriminate” sion. The word reasons, we ReveRse foregoing For the pro- § that statute appear in 1981. What summary judg- grant of the district court’s the same that all have vides is citizens on Hum- defendant in favor of the ment contracts. How right to make enforce claim, Affirm phries’s retaliation ambiguity in that resolves can a decision in favor of the summary judgment grant of apply “discriminate” other the word discrimination Humphries’s defendant (2) language? Sec- statutes with different claim, proceed- further and we Remand 1866, long in enacted before tion 1981 was opinion. in with this ings accordance created. The anti-retaliation norms were “retaliatory discharge” first mention of EASTERBROOK, Judge, Chief came any appellate opinion federal dissenting part. Winer, Inc., F.2d 370 NLRB v. Arthur (7th Cir.1952), the first use in Jackson Supreme Court held Scrivener, Education, NLRB v. Supreme Court was Birmingham, Board of 31 L.Ed.2d 79 1497, 161 L.Ed.2d 361 405 U.S. S.Ct. U.S. S.Ct. (1972).(3) anti-retaliation norm (2005), Lack Title IX the Education § not hinder enforcement of 1981 would forbids edu- of 1972—which Amendments laws, is a because there real rights federal civil receive programs cational in Title rule VII on account of anti-retaliation discriminating from funds 1681(a) judi- Rights Act of U.S.C. sex, § Civil 29 U.S.C. —allows 2000e-3(a). why one reason That’s “discriminate.” to define the word ciary Title IX of the distinguished curtail authority to Jackson The Court used that Act. Title of the 1964 Act from VII of discrimination steps reports that make Today 1497. Cf. Garcetti v. U.S. costly employees. to students and — Ceballos, -, the conclu- this court attributes Jackson

409 (2006) 1981(a), § (holding 164 689 that there the text of L.Ed.2d which Hum- un- general phries’s § is no anti-retaliation doctrine claim rests. When 1981 1983). § der U.S.C. Title VII have different but overlapping (as do, provisions they for example, with today not question issue respect damages), judiciary then the employer may an whether fire worker See, e.g., must enforce both. Branch v. discrimination, whether protested who but Smith, 254, 273, 1429, 538 U.S. 123 S.Ct. employee may present an a claim of retali- (2003); 155 L.Ed.2d Ag Sup- J.E.M. though timely ation even he failed to file a ply, Inc. v. Pioneer Hi-Bred Internation- in charge engage under Title VII and con- al, Inc., 124, 141-14, 534 U.S. 122 S.Ct. turning By ciliation to court. add- before 593, (2001); Randolph 151 L.Ed.2d 508 v. ing § an anti-retaliation rule to IMBS, Inc., (7th Cir.2004). 368 F.3d 726 majority ancillary does not craft an doc- But the fact overlapping systems may that necessary to make the principal trine norm justify creating coexist does not incompati- (as Jackson)', in in- work the Court did bility, .majority today. as the does Section components stead it demolishes of Title 1981 does not contain anti-retaliation Congress thought necessary that VII deciding rule. When whether to add such expedite disputes the resolution of and re- § a rule to we must consider the many solve of them out of court. effect that this step would have on Title disgrun- is not the first that a This time That’s holding VII. Patterson. § has turned to employee tled 1981 after missing litigation the deadline for my To the colleagues extent treat in Title VII. The Court held Patterson v. legislation the 1991 discarding all of Union, McLean Credit U.S. 109 Patterson, they follow an approach that (1989), S.Ct. L.Ed.2d rejected v. Roadway Rivers Ex § possible 1981 should be construed when press, U.S. S.Ct. Today, to avoid conflict with Title VII. (1994), Landgraf 128 L.Ed.2d 274 however, majority exactly does what Products, USI Film § It Patterson forbids. reads 1981 to have (1994). 1522, 128 Legis S.Ct. L.Ed.2d 229 VII, the same substantive content as Title lation not does “overrule” decisions of the periods but without features as short such Court; Supreme adopt new statutes new employees of limitations that find incon- rules but place existing leave norms way venient. That’s not a sound to treat legislation Nothing does not touch. statute, already beyond extended far justifies the Civil Act of 1991 read original meaning. Runyon its (amend ing § broadly 1981 more than its McCrary, 427 U.S. ed) or undermining parts text of Title VII (1976); Fairman, L.Ed.2d 415 Charles VI that remain in force. The Court demon History Supreme Court the Unit- Pizza, strated this in Domino’s Inc. v. ed States: Reconstruction and Reunion McDonald, (Part One) (1971); 1207-60 Ger- (2006), 163 L.Ed.2d 1069 which unanimous Clio, Casper, Mayer: hard Jones v. Be- ly reversed a decision that had invoked the Muse, Sup.Ct. mused and Confused judges’ public policy views of wise to ex process Rev. Patterson holds that the 89.. tend Pizza shows that Domino’s judicial stop. extension must Patterson cannot be treated as defunct. reach,

Congress can add to a law’s and The has cited Patterson Court in 1991 it favorably Landgraf did so—but the 1991 revision 24 decisions since these, change does mention “retaliation” or and Rivers. Of Domino’s Pizza is them “more statutes make supplement Patter- it uses because most salient See, v. Bo e.g., J.I. Case Co. methodology to construe effective.” interpretive son’s 426, 1555, rak, 12 84 S.Ct. Act 377 U.S. the Civil § as amended 1981 Ash, (1964). v. 422 But Cort 423 L.Ed.2d of 1991. 2080, 26 66, 45 L.Ed.2d 95 S.Ct. U.S. declaring the up that My colleagues end and since (1975), that approach, abandoned (the context, history 1981, its § its text of interpreta has the the Court lashed 1970s like an anti-retaliation anything of absence statutory text. closely “[N]o to tion more 1866), function, and the effect norm in its at all costs. pursues purposes its legislation operation the of reading on of an inventive values will or competing what Deciding they The rule Title all are irrelevant. VII achievement of not be sacrificed the will any in moorings no has impute to Jackson of objective very is the essence particular a that’s Yet provenance. or statute’s text it frustrates rather legislative choice—and with says; it dealt not at all what Jackson legislative simplisti intent than effectuates Title operation of language and the actual that whatever furthers the cally to assume justify language-and- a IX and does not objective must be primary statute’s of all federal interpretation history-free States, 480 Rodriguez v. United law.” likely think it that I do statutes. not 1391, 522, 525-26, 94 107 S.Ct. U.S. Court, that statuto insists Supreme (1987) original). in (emphasis 533 L.Ed.2d if inconven followed even ry language be that, say It is anachronistic to because Arlington Cen e.g., jarring see, ient or — —— freewheeling in a “inter- engaged Murphy, U.S. Sullivan District v. tral School 1982, may today § take 2463, 165 of we -, 2455, pretation” 526 L.Ed.2d 126 S.Ct. might § as well 1981. One Allapattah v. liberties with (2006); Corp. Exxon Mobil “every 2611, that 546, 125 proposition cite Borak for the Services, Inc., S.Ct. 545 U.S. (2005); remedy” a so that courts right implies 2625-27, 502 Dodd 162 L.Ed.2d of ac- 353, today private right create a States, S.Ct. should U.S. United than those that (2005); every statute other Tyler v. tion for 2478, 162 L.Ed.2d 5, Supreme Court addressed Cort Cain, 656, n. 121 S.Ct. 533 U.S. (2001) ac its successors. 150 L.Ed.2d 632 —would I approach. appreci cept an such atextual majority’s tack. The is the Yet that every “the to make law temptation ate the that, ig- Sullivan argument goes because be,” is not Su it can but that best §of and drafted language nored the statutory mode preme Court’s current statute, version of “improved” Domino’s Pizza shows interpretation, as today § for to do the same are free § particular. 1981in re- The Court neighbor. its Borak proceed otherwise. pre- quires that us approach it Perhaps was 14(a) § Ex- Securities dealt with the Court decided vailed when 78n(a). Park, Inc., 1934,15 § It change Hunting Act U.S.C. v. Little Sullivan “interpreting” that freewheeling 386 was L.Ed.2d U.S. § (1969). with 1982. Yet law as majority in Sullivan held Sullivan change interpre- held that the U.S.C. Court has litigation plaintiff applies Cort tive announced in complain re- method standing § 1982 has about Ex- all sections the Securities taliation, concluded other and Jackson In- change Piper Act. See component have had substantive must Chris-Craft dustries, read, piece is of too. So Sullivan (1977) (§ 14(e)); Touche Ross judges may L.Ed.2d holding decisions

other Redington, 442 point & Co. v. 99 S.Ct. was a the Court made in Jackson-. (1979) (§ 17(a)). 61 L.Ed.2d 82 Bo IX Title was enacted in and Con- rak and similar decisions from the 1960s gress may anticipated well have that Sulli- overruled, have not been have been but we van-like construction would follow. 544 in no uncertain they told terms that must U.S. at legisla- S.Ct. 1497. The Indeed, in Virginia be extended. tors who voted for 1981 in 1866 would Bankshares, Sandberg, Inc. v. 501 U.S. not anticipated any judicial have such lib- erties, however; 115 L.Ed.2d 929 § and when 1981 was (1991), apply the Court declined to Borak amended in decisions such as Cort 14(a) § to a portion that had not been and Rodriguez and Patterson had an- in involved Borak. So that case has been approach. nounced a textual So when a single limited to a sentence of one subsec question arises in 2006 meaning about the then, Why, may tion. the method of Sulli of this legislation, job our is to 1866/1991 applied van be to other sections of the apply interpretive pre- norms that Act despite Civil of 1866 interven in today, vailed not to take ing precedent? an ambiguous decision from 1969 and see how far can run with it.

There has been a change interpre- sea today— tive method between Sullivan and Section 1981 does offer opening one for (cid:127) only and Patterson not exemplifies the a claim in the nature of retaliatory dis- § change applies but also it to 1981. In charge. Suppose Cracker Barrel regu- rely 1989 the Justices were invited to on larly employees fired' black protest who Sullivan as a interpretation model discrimination in the workplace, but not They §of declined. Less than a protesting employees. white Then it Pizza, year ago, Domino’s the Court might appropriate be to conclude that reiterated interpretive Patterson’s stance. black persons do not enjoy the same Sullivan, contrast, did not receive a right persons as white to contract with my mention. Yet colleagues do not men- Cracker Barrel. But Humphries does Why tion Domino’s bypass Pizza. argument. not make such an For all understanding Court’s 2005 shows, this record Cracker Barrel fires § 1981 in favor of a understanding every eomplainer, regard without to the § respect 1982? We must superiors’ our subject of complaint. employer An judicial decision to call a extrapola- halt to everyone that treats same this re- tion; Domino’s Pizza rather than Sullivan § spect complies with judg- so the exemplifies judicial the appropriate role. ment should be affirmed. Sullivan, By relying my on in- colleagues

dulge assumption if some reme- —that good,

dies are then more must be better— support today’s Supreme has no

Court.

Now if 1981 had been enacted while

the freewheeling approach of Sullivan was force, it might appropriate well be

adopt goal-driven reading. To use the

interpretive years tools of the last 30 passed days

unravel a statute in earlier up legislature.

would be to cross That

Case Details

Case Name: Hedrick G. Humphries v. Cbocs West, Inc.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 29, 2007

Citation: 474 F.3d 387

Docket Number: 05-4047

Court Abbreviation: 7th Cir.