James Gooden v. Michael v. Neal

States, v. United 459 U.S. Inc. 514, 521, 74 L.Ed.2d 311 point equi- out how the

Allnet is unable to court’s require

ties us to treat district grant stay

refusal to as an abuse of its

discretion. cross-appeals

Cincinnati Bell payment

award a late fee the district

court in the amount of CBT’s filed tariff 6%. simple

states that it is entitled to 18% inter (or interest) per day simple as a

est .0493%

penalty paid timely by for amounts not billing dispute,

customer because when dispute ultimately resolved in CBT’s Because filed tariff

favor. CBT’s controls

the amount of interest due in this see 47 203(c), §

U.S.C. award different from this inappropriate.

amount was The FCC has power to determine that rate to be un

reasonable, does, parties until it but are lawfully

bound filed tariff.

III. affirm the district

We court’s denial of a

stay grant summary in this action and its CBT,

judgment in favor of but vacate the payment

late award and remand this cause

to the district court in order that

modify comply opinion. its order to with this GOODEN, Plaintiff-Appellee,

James NEAL, al.,

Michael V. et Defendants-

Appellants.

No. 92-2524.

United Appeals, States Court of

Seventh Circuit.

Argued Nov. 1993.

Decided Feb. 1994. Denying

Order Reinstatement of

Cross-Appeal Feb. 1994.

Rehearing Suggestion for Rehearing

En Banc Denied March Goldman, House, Oregon

Abraham N. CA Ackerman, (argued), Steven Law Offices of Ackerman, IL, Chicago, plaintiff- Steven for appellee. Toews, Gen., Atty.

Robert G. Office of Chicago, (argued), IL defendants-appel- for lants. LAY† POSNER, Judge,

Before Chief and EASTERBROOK, Judges. Circuit EASTERBROOK, Judge. Circuit As story, James Gooden tells the the truth was more than the warden could bear. Pro- placed to charge moted lieutenant and the internal affairs unit the Danville Cor- August 1986, rectional Center Gooden digging. performance started His won acco- lades, including “employee of the month” award while he was a member of the unit but yet its praise-filled head. The evalua- promotion. tions continued after his Yet af- turning ter up abuses guards, fellow performing their gang favors for leaders (presumably for compensation), he found his superiors unwilling to listen. Despite enough information to start a criminal inves- tigation corruption sup- he —information plied to the local prosecutor nothing hap- — pened prison. within the putting Instead of fire, out the the warden switched off the morning alarm. One in March 1987 Gooden reported for work at only internal affairs be told to keys, “turn in his take his name plate and not come back.” Reassigned ordinary guard duty, he did not take the hint. In January assigned 1988 he was perime- ter duty and required trudge around the † Hon. Lay, Circuit, Donald P. Eighth sitting by designation. cold; marching, discharged discovering speaking when

prison in snow prosecutor criminal posted guard unheated tower. about conduct he was to an persons provide guards, responsible other then the refused After the assistant warden tour in these events violated the first amendme him winter coat for his with a nt.†† tower, right, If Warden Neal is another correctional officer refused to Goo- prison, showing busybody den is who him a an irascible roiled let him back into the prisoners hampered the the -work of forbidding entry prison memo his into other employees, sending quit. pris then to the Gooden Gooden unescorted. (thus equivalent inducing on’s of Siberia him story, the As Neal tells James Warden quit) to is supportable—for, more if the even anyone Gooden more than could bear. was poor public methods warden used were sea, job to left Promotion a desk Gooden administration, discharge mo a constructive defensive, edgy, example a textbook of by tivated speech considerations other than Principle. wrongdoing He saw in Peter does not violate first St. amendment. Cf. events the most innocuous and committed — Hicks, Mary’s Honor Center v. U.S. barging sin the bureaucrat’s cardinal of into -, 2742, (1993); 113 S.Ct. 125 L.Ed.2d 407 employee’s jurisdiction despite another a di- Associates, Engineering Visser v. Packer respect rect to the division of authori- order (en Inc., (7th Cir.1991) 655, 924 F.2d 658-60 overwrought he ty. got He so couldn’t banc); Department Benzies v. Illinois of joke. guard take a Another circulated a (7th Health, Cir.1987). F.2d Mental 810 146 canceling memo in Gooden’s name Christ- matters, judge jury As the district saw mas. became livid and started test- Gooden § 42 this action under U.S.C. 1983 to ing prison’s typewriters in an all of the at- choose between two stories. Gooden was prankster—as tempt identify if he either out of a whistleblower forced because Papers trying Pumpkin were to use the speech or his a bureaucrat frazzled over out Chambers find whether Whittaker was possi- head. There was least one more telling Alger truth about Hiss. So the bility: lawyer little of each. Defendants’ job warden last returned Gooden he charge asked for a based on Mt. guard. had done well: Normal rotation had City School Board v. District Education of marching through sleet. him Doyle, 429 U.S. 97 S.Ct. 50 L.Ed.2d (1977). overlap: The tales some judge have Goo- 471 He wanted tell that, incident, den deny typewriter does not even if the defendants retaliated telling and the speech, they prevail they warden concedes Gooden to Gooden’s if keep where, his nose out of some resignation areas Goo- would have forced his for reasons says, den By large, he smelled a rat. speech. planned unrelated to his Counsel however, both the stories their legal argument closing. make a dual-motive implications diametrically are opposed. judge give If The declined to right, Gooden constructively and he jurors was instruction and told the that if Goo- †† judgment trict public employees motion whether, cation, lic concern within affirmative Cir. claims raised and resolved before has succeeded in Greenberg v. Cir. correct. Cf. Feldman v. 1991); Defendants Fed.3d-22 1986), 1993). judges Benson v. for directed verdict and if so how as a comes too late. The claim of official U.S. defense, do Kmetko, We therefore need not decide not matter are the first time Allphin, deny act many Pickering Pickering trial, which speech 922 F.2d 382 favorably Bahn, far, we have held that dis law, ordinarily 786 F.2d 268 on a (now reports Although v. Board the concession is 12 F.3d 730 immunity, see Fed.R.Civ.P. in mid-trial matter of on of crime 20 L.Ed.2d motion for cases, immunity (7th is raised it is an which Edu pub (7th (7th Cir. see by tion ments of immunity munity it off the trial 50(a)), R.Civ.P. during E.g., arose in Cir. raised for the raised cused defendants F.2d 1992); (7th rooted in the facts of a case McGeev. (7th during trial see before or 50(b). post-trial practice. Cir. as an Cir.1988) Thronson v. Rakovich 1387-90 may 1986); agenda. motions. Defendants failed to list Bauer, trial. first issue Defendants did not be "renewed” after trial. Fed. during time (en (7th Cir.1984). McKinnon 956 F.2d v. A What is Meisels, banc), motion Wade, after trial; pretrial procedural That is too late. trial; but more, properly Berwyn, order, may subject 733-34 rely F.2d it a conten must require on taking made first (7th im ex be words, or, put it in other that it “motivating factor” speech was den’s factor’ — ‘motivating [employer’s] The was a factor’ in the a verdict in his favor. return were to $375,000. decision” then the shifts to the em- burden so, awarding damages of jury did “by preponderance of ployer to establish $200,000 in added almost judge later have reached the the evidence that would response post-trial In to a attorneys’ fees. ... even in the absence of the same decision judge wrote: “If the motion the protected conduct.” Id. at motivating speech factor and a consti- (footnote omitted). The district court’s violation, the fact that the defen- tutional is a protected speech conclusion that when any- they did would have done what dants hap- “motivating factor” what would have protect- way, being motivated without “not pened in the absence of that germane question speech, is not ed question liability” germane to the is ac- liability.” Although defendants relied heavi- may cordingly The district court untenable. Healthy, judge did not cite or ly on Mt. Healthy have confused the standards Mt. opinion. that discuss litigation with establishes for constitutional that an The district court’s conclusion employ- in some other kinds of the standards employer violates the first amendment when 2000e-2(m) § litigation. ment See 42 U.S.C. speech “motivating factor” even if “the is a 1991). (added by Rights Act of Cf. Civil would have done what did defendants Transportation Management v. NLRB anyway” approach Supreme an tracks Corp., 462 U.S. disapproved Healthy. in The dis Court Mt. (1983); v. L.Ed.2d 667 Price Waterhouse that a “[i]f court in that case concluded trict Hopkins, 490 U.S. reason, e.g., exercise of First non-permissible may be the L.Ed.2d 268 Whatever part a rights, played substantial statutes, rights case under labor civil [employment]— not to in the decision renew Healthy approach litiga- establishes permissible in the face of other even amendment. tion under the first grounds decision not stand”. 429 —the argument question arose At oral 284, 97 S.Ct. at 574. The Court U.S. at to cases in is limited whether replied: basing employer an concedes its deci which solely A rule of causation which focuses part protected speech. Although in on sion played protected conduct a on whether in Mt. employer made such concession otherwise, in em- part, [an “substantial” or rationale de Healthy, nothing in the Court’s place ... could an em- ployment] decision Indeed, employer’s pends fact. if the on that position ployee in a better as a result vital, why one wonders concession were constitutionally protected the exercise of plaintiff that the bears the initial Court said occupied had than he would have conduct protected speech that is a proving burden of nothing. difficulty with the he done motivating in this circuit factor. Decisions by the District Court is rule enunciated approach to cir apply since Mt. its require reinstatement in it would employers took the cumstances which perhaps dramatic and abra- cases where a denying that tack as Neal: same Warden inevitably is on the minds sive incident adversely employee’s they reacted ... and responsible for the decision those that, jury nonethe insisting if the speech play in that decision— does indeed role, speech played less concludes been if same decision would have even the produced have other considerations would the incident not occurred. reached had E.g., anyway. Rakovich the same decision principle at stake is suf- The constitutional (7th Cir.1988) Wade, 850 F.2d 1188-99 employee if an ficiently vindicated such banc) (en pre (concluding that defendant if position than he had placed in no worse a plaintiff Healthy because under Mt. vailed in the conduct. engaged speech protected not established factor); Greenberg motivating v. Kmet 97 S.Ct. at 575. The Court was Cir.1988) (en (7th ko, 840 F.2d 474-75 burden-shifting approach: if the devised a banc) give (directing court to a Mt. district by of the preponderance shows in a case which the Healthy instruction evidence “that his a ‘substantial conduct was speech plaintiffs uphill fight defendants considered but fendants will an on this speech by protected record, denied that the even properly jury, with a instructed Constitution). . they are jury’s but entitled have the deci- questions on sion the factual rather than Many do not want Mt. defendants ours. prefer to ask an Healthy instructions question jury. espe This is either-or Gooden raised state-law claim under when, cially Greenberg so and Ameri jurisdiction. supplementary Illinois en can Union v. States Postal Workers United courages reports of crime Service, and forbids em Postal F.2d n. 28 (D.C.Cir.1987), ployers against taking retaliate employees concedes who employee’s adverse action the basis of reports. 415/19c.l; on make 20 ILCS Pal speech but contends that the was not Co., mateer v. International Harvester first amendment. Mt. Ill.2d 52 Ill.Dec. 421 N.E.2d 876 something Healthy of a in such misfit (1981); Belline v. K-Mart Corp., (although Greenberg circumstances relied on (7th Cir.1991). The district court re it). When, however, plaintiff says that moved this claim jury’s from the consider speech, the adverse decision was on based on a ation motion Gooden that the court says and the defendant that the decision was make, encouraged him to believing that else, something on based should be light was redundant of the first amend told if it what to do concludes that the em shows, opinion ment theories. As this how ployer Healthy gives had both motives. Mt. ever, the court’s belief is To pre incorrect. jury the that essential information. under vail state law Gooden did not have to The evidence was not so overbalanced reports that establish his were that the error In can called harmless. speech, and of retaliatory the tort discharge structional error of this be harm kind would developed precisely in Illinois has not only less if the evidence so favored Gooden way same as governed by constitutional torts by that a preponderance could find a Healthy. State and federal theories are of the evidence the constructive dis distinct; Gooden win could under one and charge was attributable to matters other under any lose the other. At new trial Goo- protected speech. judge, than The district den therefore have the opportunity who case jury, submitted the did not present both if he theories desires. lopsided. think the so evidence Gooden had going lot a for him—the and letters Reversed and awards Remanded. removal, praise,

of the odd manner of his appear trumped- accumulation of what to be LAY, Judge, dissenting. Circuit up charges justify after March 1987 to as signing guard, a regular lieutenant as a respectfully I must dissent. (a testimony of founding Charles Newman The vacation judgment of the and remand Criminology) editor of that Gooden behaved a multiple degrees for new trial create of appropriately nothing person and that in his unfairness. In the immediate a defen- nel file investigation or the records of his reaps gain by claiming dant error in the trial otherwise, reflected and own testi Gooden’s prem- court’s refusal to instruct on a factual mony that one of the defendants told him employers ise involved in the case. For that he “starting had been banished for however, general, victory certainly is a make waves within institution.” But the Pyrrhic Assuming majority’s one. un- defendants testified that viewed Goo- precedented ruling withstands further re- insubordinate, den’s behavior erratic view, employment involving cases the First prison enough military is like a institu employers, every Amendment will jurors require tion that could believe that subor case, to proving dinate assume the burden of viewed as troublemaker is on the (and way employment out no matter what their he said no decisions were not based accurate). matter whether the view is employees’ De- on the their exercise of First 930 op has the action, employee finally the flows new rule1 rights. This employer’s expla show that Supreme portunity Court’s of misapplication McDonnell merely pretext. See District nation Healthy City School rulings in 802-04, 274, 93 S.Ct. Douglas, 411 U.S. Doyle, 429 U.S. v. Education

Board of Hicks, (1977), 1824-25; Center v. Mary’s Honor Price St. 471 50 L.Ed.2d S.Ct. 97 - -, - - - 113 S.Ct. 109 490 U.S. Hopkins, U.S. v. Waterhouse (1993). (1989), The em Texas 125 L.Ed.2d L.Ed.2d persuasion at all Community v. Bur of ployee retains the burden Department Affairs of — at-, Hicks, 113 S.Ct. dine, 101 S.Ct. U.S. U.S. times. See Douglas (1981), merely the bur employer McDonnell has The at 2747. L.Ed.2d has Green, employee 411 U.S. production once Corp. den of employ prima facie case. L.Ed.2d established actions prove that its have to does not er employer is ac- Regardless of whether nondis legitimate, motivated were employee retaliating against an cused Burdine, 450 U.S. criminatory See reasons. right of free of the her exercise or at 1094. demoting an firing or speech, or gender, or one or her race of his because employ- arise when an cases Mixed-motive These sce- is involved. factual scenarios two employ- considerations er admits that commonly to as referred become narios have example, protected speech, or ee’s race or “dual” motive “mixed” “pretext” and decision, but employer’s in the played a trier implicated, cases. Where other, claims that because nothing” an “all or is faced with of fact considerations, would legitimate employee claims example, the For situation. any- decision employment the same reached protect- result of her she fired as a first addressed way. Such a situation was reasons, for racial while ed Healthy City in Mt. Supreme Court that such factors employer contends Doyle, v. District Board Education School of or firing. One the nothing to do with 274, 568, L.Ed.2d 471 S.Ct. 429 U.S. truth, fact telling the and the trier of other is (1977). Healthy public school Mt. involved must choose. discharged he had been teacher who claimed speech rights free under exercising his governed by Pretext cases are the McDon refusing In to rehire the First Amendment. Douglas/Burdine nell framework. See Green, teacher, deci- the school board based its Douglas Corp. v. 411 U.S. McDonnell 792, 1817, (1973); phoned a on two incidents: the teacher 93 S.Ct. 36 L.Ed.2d 668 sion matter, Community about a school Dep’t Texas v. Bur radio station of Affairs dine, 248, 1089, gestures fe- teacher made obscene towards 450 U.S. 101 S.Ct. at 97 S.Ct. at male students. See id. L.Ed.2d 207 Under McDonnell finding Douglas/Burdine, made a of has the bur 573-74. The district court establishing prima phone den of facie then fact that the call to the radio station “ ‘clearly protected by the Amend- presenting has the burden of a was First ” legitimate, 283, nondiscriminatory S.Ct. at 574. reason for its ment.’ Id. Waterhouse, Hopkins, light 1. Prior Price In Waterhouse v. 490 U.S. Price 490 U.S. at 247 n. 12. 1775, distinction, (1989), Supreme 104 L.Ed.2d 268 Court's this court applied Healthy City recognized questionable Seventh Circuit Mt. whether School that it was now Doyle, Healthy apply political District Board Education v. 429 U.S. Mt. to all discrimi- of (1977), acknowledged perhaps 50 L.Ed.2d 471 to all nation cases and political First Healthy applies only political affiliation cases. See to mixed-motive cases, Svetanoff, Doug- McMillian 190 n. 3 discrimination and McDonnell (7th (Flaum, 1989) J.). Waterhouse, pretext political Cir. In applies Price discrimi- las/Burdine McMillian, Supreme applied Court the Mt. nation cases. 878 F.2d at 190 n. 3. case; thus, day framework to a Title VII The McMillian court left for another clearly today is not question, limited to First Amendment cases. decision on this court this Supreme cases, See distinguished id. The Court reaches conclusion that Mt. be untenable cases, pretext tween Healthy applies Doug where the McDonnell to all First Amendment applies, regardless las/Burdine framework and mixed-mo of whether involve or cases, id.; tive Healthy applies. where Mt. See mixed motive.

93J The district determined, ployer. and the In a situation, mixed-motive the em court of appeals agreed, that the teacher’s ployer has admitted it illegit considered exercise his right free played a factors, imate thus put fair to substantial in the board’s refusal heavier burden on the employer compared him, rehire and ordered that the teacher be to the pretext situation, where the employer reinstated. As a reinstatement, result of the any denies wrongdoing. See Price Water the teacher would receive tenure. The house, 490 U.S. at 109 S.Ct. at 1801 school board was denied the opportunity to (O’Connor, J., concurring) (employer should that, show because of other conduct engaged not be “entitled to the presumption same by teacher, it would have refused to good faith where there is direct evidence that rehire the teacher even if he had spoken it has placed substantial reliance on factors on the radio. See id. at 576. whose consideration is forbidden Title The rule enunciated the district court had VII”). the effect of enabling someone who was The majority acknowledges the facts in- about fired job retain his or her volved in Mt. Healthy, but reasons that the simply by exercising also his or her right of consideration by the school permis- board speech. free The Supreme Court did not sible and impermissible factors was not of “place wish to an employee in a posi- better importance to the Mt. Healthy decision.2 as a tion result of the exercise of constitu- According to the majority, the Supreme tionally protected conduct than he would Court rely did not on the mixed-motive situa- have occupied had he done nothing,” id. at tion in developing the Mt. Healthy frame- 97 S.Ct. at and reasoned that such work. This reading of Mt. Healthy ignores employee “ought able, not to be by engag- plain language of the case. If Mt. ing conduct, prevent his employer Healthy had situation, involved a pretext assessing performance his record and Supreme likely Court would not have re- reaching a decision not to rehire on the basis versed. It was precisely because the school of that record.” 97 S.Ct. at 575. board admitted that it phone considered the For this reason Supreme Court held call to the station, radio but argued that it that where mixed motives are implicated, would have reached the decision not to rehire once an employee has shown that or her the teacher even phone call, without the constitutionally protected speech was a “sub- the Court reversed the ease. If question stantial” “motivating factor” in the ad- had simply been whom to believe between verse treatment of the employee by the em- the school teacher, board and the there ployer, the burden shifts to the employer to would have been no need for newa trial. prove “by preponderance a of the evidence that it would have reached the same decision In Mt. the Court indicated that as to employee] [the even in the absence of the long-term consequences of tenure are so protected conduct.” Id. at 97 S.Ct. “significant” it that not could approve a rule Thus, at 576. where mixed motives are in- that prevent would the school board that volved, the persuasion, burden of simply not “considered constitutionally protected con- production, burden of shifts to the em- duct deciding in not to teacher], rehire [the 2. This Supreme one, overlooks the Court's discussion the conversation with radio station finding. of the district court's clearly protected The district court the First Amendment. A following made the aspect may conclusions on engage this court not any of in limitation of First the case: rights Amendment based on 'tact' —that is not say to” that the 'tactfulness' is irrelevant " ‘1) reason, non-permissible If a e.g., exer- other issues in this case.’" cise of First rights, played Amendment a sub- Healthy, 284-85, 429 U.S. at 97 S.Ct. at 574- stantial in the decision not to renew— added). (emphasis 75 The district court further " in permissible even grounds— the face of other fact, stated '[i]n that as this Court sees it and (citations omitted). the decision not stand finds, both the Superintendent Board and the " '2) non-permissible A play reason did a were faced awith situation in which there did part. substantial That is clear the letter exist in fact independent from reason ... any of of First Superintendent immediately following the rights thereof, or exercise to not decision, Board’s which stated two reasons—the extend tenure.’" Id. at 97 S.Ct. at 575.

932 complaints about its text for discrimination trier prove attempting fact of from Id. at skills. interpersonal plaintiffs [the conduct such apart quite from not he would at 1783. was record teacher’s] Id. at 286 any event.” in rehired have been Supreme importance Of critical Thus, contrary the ma- added). (emphasis applied to be deciding the standard in Court restructuring in reasoning, the Court jority’s that it was was the fact Waterhouse Price in the fact that consider proof did of burden 240 n. See id. at situation. a mixed-motive ra- The motive. mixed had a (comparing Price Wa n. 109 S.Ct. Healthy was that: of Mt. tionale Fe Trail v. Santa to McDonald terhouse solely focuses which causation [a] rule Co., 282 n. U.S. Transportation played conduct whether on (1976), 2574, 2580, 49 L.Ed.2d 96 S.Ct. otherwise, in a deci- “substantial” part, did that “McDonald out pointed the Court rehire, place could sion difference This mixed motives. of the not involve a result position as a better in Water- distinguishing con- constitutionally protected [Price in decisive exercise ”). involving ‘pretext.’ occupied he from those ] than he would house duct prin- opinion constitutional stat nothing- plurality The done Brennan in Justice if sufficiently vindicated at stake ciple ed: in no worse placed employee is such an be taken Nothing opinion in this in engaged if he had than position correctly that a case must suggest conduct. “pretext” case or as either labeled 575. 97 S.Ct. beginning from the case “mixed-motives” Healthy and interprets majority The Court; indeed, expect we District from all other to be distinct speech cases free in the allege, will alter- plaintiffs often §or Title cases VII employment under native, Discov- are both. that their cases comport does not categorization This kind necessary before will be ery often Healthy arose in Although Mt. logic. with legitimate know whether both can plaintiff Amendment, has of the First the context played a considerations illegitimate situa First Amendment limited to not been At some against her. part in the decision Hop Indeed, Waterhouse tions. Price course, the proceedings, point in the kins, U.S. par- decide whether Court must District (1989), case in a mixed-motive L.Ed.2d motives. mixed ticular case involves discrimination, Supreme volving gender that was analysis same applied Court n. 12. at 1788 247 n. Id. at Healthy.3 plaintiff developed in Mt. concurrence Similarly, Justice White she de claimed that Price Waterhouse clear that Court has made that “[t]he stated accounting firm be partnership in an nied eases, present such as ‘mixed-motives’ The district gender cause of discrimination. cases such one, are different partners’ re that some found pre In Burdine. Douglas and McDonnell marks, plaintiff, stemmed evaluating illegal either cases, is whether ‘the issue text stereotypes. gender Id. impermissible both, the ‘true’ motives, were but not legal 235-36, 109 The at 1782-83.4 district at S.Ct. Id. at decision.’” behind the motives found, however, the account court also that v. Trans (quoting NLRB 1796 at interper ing emphasized legitimately firm U.S. Corp., 462 Management portation pre- as a sonal and had fabricated skills plain partner example, described one Village Arlington Heights 4. For 3. See Metro also " "macho," suggested take 'a she another tiff as politan Corp., 270 n. Dev. 429 Hous. U.S. " school,' told her that a third charm course (1977) (in 555, 566, 97 50 L.Ed.2d 450 S.Ct. partnership she should improve for her chances day as Mt. handed the same decision down " femininely, femininely, talk more more 'walk Healthy Healthy stan the Court found the Mt. make-up, have her femininely, wear more dress ” applicable dard claim racial discrimina jewelry.’ Price Water styled, and wear hair house, rezoning proposal). tion in the denial of (quot S.Ct. at 1782 490 U.S. opinion). ing district court 5, 103 2469, 2473 5, S.Ct. n. n. The Appeals L.Ed.2d Second Circuit Court of has (1983)). similarly recognized pretext analysis that developed in Douglas McDonnell Bur- relevant mixed- The distinction is between fa is not limited to Title VII but “is cases cases, pretext motive not between dis fully applicable to constitutional claims where involving crimination the First Amendment improper issue is whether an motive types and all other of discrimination. The Senkowski, existed.” Howard v. F.2d Appeals recognized D.C. Circuit Court of this (2d Cir.1993). Similarly, 27 n. mixed-mo distinction in American Postal Workers Un analysis applies tive also in non-constitutional ion, AFL-CIO v. United States Postal Ser settings. (citing, e.g., Id. at 26 n. 1 Price (D.C.Cir.1987) vice, [hereinafter Waterhouse, 490 U.S. at 109 S.Ct. at plaintiff postal employ The ]. APWU was 1787-89; Transportation NLRB v. Manage writing ee who was fired after an article in a 393, 403, 103 Corp., ment 462 U.S. newsletter, in which he stated that he union (1983) (National 76 L.Ed.2d 667 Labor petitions had read third class mail and found Act)). Relations Congressman mailed a United States The Howard court was faced with the (anti- seeking support “right to work” question type analysis of what apply union) legislation. Id. at 297. The Postal challenge prosecutor Batson where the plaintiff Service contended that it fired the per- conceded that race was a factor in his allegedly violating regula Postal Service decisions, emptory challenge but indicated regarding reading mail. The district tions significant. that other factors were more found, agreed, the D.C. Circuit The applied trial court the McDonnell merely the Postal reason Service’s Douglas/Burdine framework, pretext found pretext; plaintiff plausible offered a ex prosecutor legitimate that the had articulated planation of his statements in the newsletter explanations pretextual, which were not column, but the Postal Service fired the concluded that the individual had not estab- plaintiff spot” “on the without further investi purposeful lished pros- discrimination gation. Id. at 311. ecutor. Id. at 25-26. The Second Circuit decided, however, that because Howard in- The D.C. Circuit reasoned that because motive, Healthy analysis volved mixed a Mt. situation, pretext APWU involved a the full should been used instead. The critical Healthy appropriate.5 test was not The distinction, it, as the Second Circuit sees plaintiff APWU court held that the had to pretext whether a or mixed-motive situation prove speech was a moti- pretext analysis involved: the Burdine vating factor the Postal Service’s decision applies all-or-nothing when “the issue is the to fire him. Id. at 310-11. The court did question impermissible of whether or not an not, however, proceed to shift the burden to challenged consideration motivated ac- the Postal Service to show that it would have tion,” Healthy/Price whereas the Mt. Water- plaintiff pro- fired the absence of his applies house framework mixed-motive speech. tected The D.C. Circuit reasoned scenarios. Id. at 27. significance that the of the fact pretext, motive, faced, and not mixed recently was involved “is that The Second Circuit in a context, in this the court is not asked to argument reach labor that Mt.

the third analysis; apply if to both and mixed-mo- plaintiff] [the 'shows that his was con- tive situations. See Holo-Krome Co. v. (2d Cir.1992). stitutionally protected NLRB, and that it was a sub- 954 F.2d 108 or motivating stantial factor in the decision pre- court discussed the differences between him, cases, prevail.” to fire he must Id. at 311 n. text and mixed-motive and then turned 28. rights litigation. to the standards used in civil case, rather, 5. plaintiff] The D.C. Circuit stated that "this [the unlike it asserts that it did fire Healthy, Mt. is not a 'dual motive’ case. The solely permissible plain- [the for the reason that Postal Service does not contend that -would regulations.” tiff] violated Postal Service Id. at plaintiff] permissible [the have fired for a reason (citations omitted). 311 n. 28 protected speech; even in the absence of his to causation proof not as will did ditional burden of The Second Circuit 110. See id. employ- be transferred to the already to have been the framework between distinguish stage.6 rights pleading First Amendment er at the and in civil used applies rather, Burdine cases; it stated that majority that the district court The states Healthy mixed- to pretext cases Healthy the Mt. standard. did not discuss The Holo-Krome court Id. cases. motive aware, clearly howev The district position that Mt. NLRB’s criticized er, belated claim of mixed of the defendant’s to both mixed-motive apply Healthy should pointed out to The district court motive.7 “The Board’s insis- labor cases: pretext they had not tried the the defendants that need not be approaches two tence that the Judge basis. Baker case on a mixed-motive they reality ignores distinguished shifting part of Mt. the burden ruled analysis determines pretext different: are apply.8 There exists a basic Healthy did not was; actually dual true motivation what the every apply courts in principle that district the em- analysis determines what motivation in Judges do not instruction conference: been if the im- would have ployer’s conduct proof legal principles factual struct on where present.” had not been motivation proper See, e.g., support the claim is absent. Inc., Tools, F.2d v. Klein Farrell to shift the burden majority’s decision Cir.1989) (error (10th federal law under employer, every First persuasion no evidence give instruction when there is insupportable. It is in- Co., it); I, & support DM Inc. v. Deere why speech free cases will comprehensible (Fed.Cir.1986) (although prof F.2d proof on the always place the burden jury may be valid as fered instruction legitimacy of dis- employers to show given proposition, it cannot be abstract employment adverse deci- charge or other produced at trial no evidence was where race, gender, age, or na- sions. Yet when it); Leaseways, relating to see also General decision, employment into the tionality enter Ass’n, Leasing Truck Inc. v. National placed persuasion will not be the burden of (7th Cir.1987) (instructions 716, 725 F.2d plaintiff unless the can employer on the light allegations of “in of the must be viewed employer had a mixed motive prove that opening closing argu complaint, majori- Under the reaching its decision. record”); Rogers ments and the evidence of up ends benefits ty’s approach, Mt. (7th Indus., Inc., v. ACF by placing him or her in a ing plaintiff Cir.1985) theory its (party is entitled to have employees, simply other position better than presented to the if there was of the case to the First the claim made relates because it). support evidence to protect- than some other Amendment rather try this case on a The defendants did consequence As a further of to- ed status. opening decision, basis. From the mixed-motive day’s it seems that in all First trial, throughout they is relieved of statement Amendment cases they either did not know or did showing pretextuality; urged that the tra- the burden of rule, plead any majority's defendants did not "affirmative all First Amendment proof 7. The 6. Under employ although speech may cases transfer the burden have been a defense” that have made er to show that the would plaintiff, motivating of the factor in the treatment employment ab the same decision even discharge notwithstand- would have occurred Thus, conduct. at the sence pleading ing employee's of his free exercise stage, long vio as First Amendment rights. The first time the defendants raised alleged, already will lations are burden have Healthy claim was in the instruction confer- transferred, pretext cases. is con even This in Price Wa- close of all of the evidence. ence trary terhouse, guidance Justice Brennan's recognized where he that it responded request Judge Baker to counsel’s immediately apparent be whether a case involves by stating: instruction "I the full Mt. discovery may or mixed motive and that hypothetical disagree all those discus- don’t with necessary plaintiff for the to make this deter proper the law. Given facts and evi- sions of Waterhouse, 490 U.S. at 247 mination. See Price but, might application, in this dence case, discoveiy n. S.Ct. at 1788 n. 12. Now that it does not." I rule longer necessary, already no for the has burden employer. transferred to the judgment in defendants’ favor going to the state’s duced without that Gooden was not care simply opportunity denied second trial. attorney. The defendants attorney state’s disclosure Gooden’s on their deci- any impact whatsoever presented this as The defendants

sions. properly district court and the eliminating prong the third instructed

so Healthy.

of circumstances, depriving the

Under ordering a new the verdict and

plaintiff of America, judgment UNITED STATES totally unwarranted. The trial is Plaintiff-Appellee, court, based on the ver- of the district dict, be affirmed. GANT, Defendant-Appellant. Maurice V.

ORDER No. 93-2129. 92-2524 & 92-2601 Nos. Appeals, United States Court of Feb. 1994. Seventh Circuit. to reinstate his Gooden asks the court Argued Dec. 1993. was dis

cross-appeal, No. which prosecution on the date missed for want of Decided Feb. appeal, principal No. panel decided The motion is denied. 92-2524. prose- insists that he did indeed

Gooden by including cross-appeal, Point IV

cute the brief, But the brief pages

in his 48-49. cap- in the only

carries docket No. 92-2524 of Plaintiff-

tion and is described: “Brief caption

Appellee.” The lists Gooden as There no evidence in

“Plaintiff-Appellee.” body Gooden caption of the brief that pursuing appeal No. 92-2601.

Moreover, motion con Gooden’s cross-appeal the function of the

tends that up argument any retrial

was to set pendent

should include the claims under the was nei

jurisdiction. Taking cross-appeal necessary pur for this appropriate

ther nor judg

pose. Only party aggrieved by may appeal,

ment and Gooden was 100% He entitled to make clear

successful. any terms of remand position about the cross-appeal.

without the need for a

Although appeal stays No. 92-2601

dismissed, the court directs each side to bear partly costs. Gooden was indeed

its own

successful, only obtaining favorable fending off the

terms of remand but also argument immunity which, defendants’ — it, adopted pro- would have

had the

Case Details

Case Name: James Gooden v. Michael v. Neal

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 7, 1994

Citation: 17 F.3d 925

Docket Number: 92-2524

Court Abbreviation: 7th Cir.