Kenneth Bourbon v. Kmart Corporation

POSNER, Before MANION and ROVNER, ILANA DIAMOND Circuit Judges. ROVNER,

ILANA DIAMOND Circuit Judge.

Kenneth sued employer, Bourbon Kmart Corporation, under Illinois law for retaliatory discharge, claiming Kmart fired him after he complained that supervi- engaged sor was in dishonest and unethical behavior towards customers. The district summary judgment in favor ery, summary judgment Kmart moved for law allows suits Kmart because tort of ground the Illinois only very under on retaliatory discharge protect circumstances, retaliatory discharge did em Bour- and because limited reported who dishonest or unethi ployees stated that Kmart’s could not show bon rather em protected cal conduct but pretextual. discharge for the reason or ployees reported who criminal conduct affirm. We compensation filed workers’ claims. who I. response, pointed In Bourbon out that his by theft supervisor’s conduct constituted working as an automo- began Bourbon deception under Illinois and thеrefore River, Illinois mechanic at the Wood bile reporting of that conduct came within had January 1995. Bourbon Kmart purview retaliatory discharge of the Kmart locations at two other worked employed tort. The district court incident, was fired from but 1994 without analy shifting burden only one River store after Wood that to Bourbon’s claim and found sis Bourbon, to he was According month. not that le Bourbon could show Kmart’s personnel to the reporting for terminated fоr his gitimate, non-discriminatory reason that his su- on two occasions department McDon pretextual. termination was See un- engaged had dishonest pervisor Green, 411 U.S. Corp. nell towards customers. ethical conduct (1973). Al 93 S.Ct. 36 L.Ed.2d occa- reported he that on one particular, that district court found ternatively, sion, a on a accidentally part broke he if Bourbon met the standard under car, for a pay and offered to customer’s he could not show Instead, su- himself. replacement part in violation of that his termination was customer for the ex- charged the pervisor report public policy clear junkyard part a repair, and used tra unethical, behavior and not ing dishonest occasion, he another repair. effect the On The when he was fired. criminal behavior charged for that a customer was reported summary therefore district court unnecessary replаcement of rack and an in favor of Kmart. Bourbon judgment me- system when another pinion steering appeals. cus- problem. Both misdiagnosed chanic eventually fully reimbursed tomers were II. overcharges. Shortly Kmart for these by incidents, Bourbon’s these reporting after takes issue with the appeal, Bourbon On complain him approached supervisor application court’s district and attitude. performance his work about retaliation, argu- his claim for a month after Bourbon A little more than appropriate ing shifting burden River employment at the Wood began his trial or in the context of motion only at Kmart, Kmart, he was terminated. notwithstanding the verdict. judgment for course, that Bourbon was termi- contended a ma- argues also that there Bourbon and not in performance problems for nated for his dispute regarding the reason terial con- bringing questionable for retaliation only at that сould be resolved termination light. duct to turn, Bour- Kmart, in contends that trial. within does not come in Illinois state bon’s termination sued Kmart Bourbon retaliatory discharge tort be- scope to the court and the case was removed only that he was Bourbon claims the South- cause District Court for United States unethical and dishonest reporting fired for Bourbon’s amend- District of Illinois. ern conduct, any criminal reporting and not complaint charged in that court ed thаt Bourbon Kmart asserts activity. also him in retaliation for that Kmart fired performing satis- no that he was behavior has reporting dishonest unethical fired, he factorily at the time was close of discov- supervisor. At the by his question. out a fact he thus cannot make The that Bourbon have Douglas. wrong case under McDonnell been about whether the conduct was criminal is irrelevant under Illinois law allows claims for re Palmateer, law. See Ill.Dec. taliatory discharge employee when an 880; Belline, N.E.2d 940 F.2d at 188. filing a compensa terminated for workers’ Supreme explained The Illinois Court employee tion claim or because the has .persons good faith acting who have conduct, reported employer’s criminal probable cause to believe crimes have been personnel either to ‍​​‌‌​‌​‌‌​‌​​‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌​​​​​‌​​‌‌​​‌‌​​‌‍law enforcement or to committed should be deterred from company Kelsay itsеlf. See v. Motoro reporting being wrong them the fear of la, Inc., 74 Ill.2d 23 Ill.Dec. Palmateer, fully discharged. 52 Ill.Dec. (1978) (recognizing N.E.2d 353 for the first 13, 421 N.E.2d at 880. Bourbon’s initial retaliatory time the tort discharge when supervisor’s characterization of his conduct an employee asserting was terminated for as change dishonest and unethical does not law); rights compensation under workers’ that, law, the fact under Illinois Bourbon Co., Palmateer v. International Harvester reasonably have believed that the con 13, 85 Ill.2d 52 Ill.Dec. 421 N.E.2d 876 by duct also meets the definition of theft (1981) (expanding retaliatory tort of dis deception. § See 720 ILCS Bour 5/16-1. charge encompass to terminations of em firing bon’s in retaliation for reporting that ployees they who were fired because re likely conduct would therefore meet the ported employer’s criminal conduct to law standard set forth in Palmateer being as authorities); enforcement Petrik v. Mon in violation public clear mandate of Printing Corp., arch 111 Ill.App.3d policy, policy Indeed, against theft. (1982) 352, 444 (recog Ill.Dec. N.E.2d 588 Palmateer, reported by the crime the dis nizing retaliatory discharge employ when charged employee was theft of a screw $2 reports ee criminal conduct supervisors driver, emphasized and the court that it instead of law personnel); enforcement magnitude was not the of the that crime Corр., Belline v. K-Mart mattered but whether the General Assem (7th Cir.1991) retaliatory tort (applying bly had decided that the crime should be discharge employee reports where an un justice resolved resort the criminal an employer). lawful conduct to A valid system. So too with the conduct Bourbon retaliatory discharge claim for requires complained about here. The Illinois Gen (1) showing employee that an has been eral Assembly depriving has decided thаt (2) in discharged; retaliation for the em persons property by of their means of (3) activities; ployee’s that the dis deception law, is a crime under Illinois charge a clear public violates mandate of reporting Bourbon’s of that conduct cannot policy. Hartlein Illinois Power be used as the for reason his termination Ill.2d 176 Ill.Dec. 601 N.E.2d he is otherwise an at-will (1992). “The element of causation is employee. Nor is it determinative that basis, if employer not met has a valid eventually Kmart reimbursed these cus which is not pretextual, discharging for Attorney tomers or that the General re employee.” disputes Id. No one that pursue pur fused to the matter. For the discharged. Bourbon was Kmart disputes poses of Illinois all that matters is discharged that he report was because he conduct, that reported when Bourbon ed overcharges, the customer and also reasonably he supervisоr believed his firing employee maintains that an for re Belline, engaged in unlawful porting activity. unethical conduct falls outside the F.2d at 188. scope of retaliatory discharge. the tort of question case, however, The of whether Bour Bourbon’s fails reporting supervisor’s causation, bon’s of conduct on the element of for he has is within scope of the tort a close demonstrating is insufficient evidence a link regarding Bour supervisor’s supervisors conduct workers reporting his between performance and attitude. As mentioned bon’s work and his termination. above, successfully, of causation is not met That Bourbon had the element and brief basis, ly, has a valid which Kmart employer if the worked two other locations discharging employ pretextual, for coming before to Wood River store is Hartlein, Ill.Dec. 601 N.E.2d performance ee. irrelevant to his there. But has no direct at 728. Bourbon if even we were able to find that there was termi the reason for his

evidence question performance, at least a as to reporting of the over nation was his he cannot show that his employer’s stated him, No one admitted to charges. terminating reason for him pretextual. example, being that he was fired for Indeed, that he evidence has to Rather, Kmart that it ter reason. claims pretext demonstrate is the close relation in minated Bourbоn’s reporting time between his of the over mechanic, incompetent an and the charges and his have termination. We company presented documentation temporal proximity held alone is not with work. problems it had Bourbon’s enough prove pretext. See Roberts lack of direct evidence is not Bourbon’s (7th Cir.1999).1 Broski, determinative, retaliato however. correctly The district court therefore en brought in federal court ry dischаrge cases summary in judgment tered favor of analyzed burden-shifting the may using be Kmart. presented Douglas. in McDonnell method Affirmed. Corp., 26 F.3d See Hiatt v. Rockwell Int’l (7th Cir.1994). 761, 767 To establish POSNER, Judge, concurring. Circuit method, using this Bour prima case facie protected that he was in a bon must show join panel’s opinion sepa I the but write class, performing job that he satis his rately to for future consideration an flag factorily, that he was nevertheless the sub (ignored ‍​​‌‌​‌​‌‌​‌​​‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌​​​​​‌​​‌‌​​‌‌​​‌‍by parties, the henсe issue materially employment adverse ject of a waived) implicit following that in the action, and that others outside the class opinion: in “Illinois retaliato sentence the Hiatt, 26 favorably. were treated more ry discharge brought in cases federal F.3d at 767-68. If Bourbon can establish burden-shifting may analyzed using be the case, Kmart his must then Douglas method McDonnell nondiscriminatory a legitimate, articulate Green, 792, [Corp. v. U.S. S.Ct. for his termination. The burden reason (1973)]” 1817, (emphasis 36 L.Ed.2d 668 then shifts back to Bourbon to show added). support proposition, of this the proffered nothing Kmart’s reason is more Corp., opinion cites Hiatt v. Rockwell Int’l pretext unlawful discrimination. than Cir.1994), which in 26 F.3d Id. Lines, cites McEwen v. Delta Air turn (7th Cir.1990). Inc., Neither least 919 F.2d 58 Bourbon’s fails First, any authority proposition for the this method. he case cites regards using two than citation of showing per has no evidence that he was other Hiatt’s McEwen. only for the result is a forming job given tо Kmart’s satisfaction. The reason his statement in McEwen that since reports performance All of his his short regulates nega Kmart were standard stay at Wood River customers, tive, merely proof, procedural the order it is complaints by co- detailing Broski, intervening event was the dis- chronology where the 1. As we noted in can no, disabled. Bourbon has support inference that a dis- closure that she is sometimes an Kmart's criticism of charge discriminatоry. example, when claim here because For such throughout praise consistent his one month employee day an and is him was receives one Broski, laundry 186 F.3d at tenure at store. See confronted with a list of criticism next, pretext 995 n. 3. she be able to establish (2000), literally within the mean 147 L.Ed.2d 105 cor- rather than substantive rect, and it therefore ing misunderstanding. of the Erie doctrine is an invitation to diversity Ordinarily, as federal- if all a in a governs plaintiff cases as well discrimina- though the tion question cases. So even Su case could show was he was rejected preme expressly qualified job Court of Illinois for a or reten- promotion, tion) Douglas to application passed but was over in favor of a (sex, retaliatory-discharge cases in person religion, of a different race etc.), opponent Clemons Mechanical Devices would be entitled to summary judgment, Ill.2d Ill.Dec. 704 N.E.2d because no reasonable (1998), 407-08 should such a case wander jury could infer from these bare facts that diversity likely into federal court virtue of the it was than more not the em- jurisdiction apply ployer’s the court should McDon action was invidious. Under showing nell to it. this bare compels summary judgment plain- for the assumed, sister have to the Our circuits produces tiff unless the defendant evidence law, contrary, that state not federal of a noninvidious reason for the action gоverns burden-shifting ap standard retaliation, complained Applied of. plicable to cases which the rule of deci logic of the McDonnell standard sion than E.g., is state rather federal. compel summary judgment would for the Woodward, Perry v. 1141- 199 F.3d lodging who showed that after (10th Cir.1999); Norville v. Is Staten (but discrimination, complaint about he University Hospital, land 196 F.3d similarly otherwise situated employee (2d Cir.1999); Payne Corp., v. Norwest complain) who did not was fired or other- Cir.1999); 1073-74 subjectеd wise an adverse Carpenter Mortgage v. Federal Nat’l action even performing Ass’n, (D.C.Cir.1999); job manner, unless, in a satisfactory again, Co., 696, Raytheon Mullin v. 164 F.3d 699 the defendant a noninvidious (1st Cir.1999); King v. Herbert J. Thomas reason for the action. Hiatt Rockwell (4th 192, Hospital, Memorial 159 F.3d 198 767; Corp., supra, Int’l 26 F.3d at McEw- Cir.1998); Minnesota, Dept. Lee v. State of Lines, Inc., en v. Delta Air supra, 919 (8th Commerce, 1130, 157 F.3d 1133 of given by F.2d at 59. Without the boost Cir.1998); Grocer, Nichols v. Lewis 138 plaintiff McDonnell the in a such 563, Cir.1998); F.3d 565-66 Olson establish, cаse to part would have as of his General Electric Astrospace, 101 F.3d prima facie case and thus before the defen- (3d Cir.1996); Pierce v. Common any explanation, dant had burden of a wealth Ins. 40 F.3d n. Life lodging causal connection between the (6th Cir.1994). These cases not do discuss complaint being ‍​​‌‌​‌​‌‌​‌​​‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌​​​​​‌​​‌‌​​‌‌​​‌‍the and his fired. issue; they merely the choice of law take Douglas for that the McDonnell And so the Illinois court concluded in purposes; standard is substantivе for Erie that to Doug Clemons follow McDonnell nor have I illuminating scholarly found in retaliatory-discharge las an Illinois case discussions of the issue. But I am inclined “would, essence, expand in tort of re to think that position per better taliatory discharge by reducing plaintiffs instinct) haps the of these other circuits is proving burden of the elements of the tort. correct. Because expand we refuse to the tort of To Douglas retaliatory discharge, describe the McDonnell we plaintiffs decline merely prescribing adopt standard as the order invitation to the three-tier allocation proof allocation of burdens of of method in retaliatory discharge common, see, production, though e.g., cases.” 235 Ill.Dec. 704 N.E.2d at 408. Products, Plumbing Reeves v. Supreme Sanderson In like vein the U.S. Court re - Inc., U.S. -, 2097, 2106, cently S.Ct. found “substantive” a New York rule, Douglas unlike for exam damages review of regulating law state while the statute “con- ple summary awards the rule that a motion for ... instruction procedural a tainted] judgment supported by need not be evi manifestly substan objective [wa]s State’s dence, Catrett, Corp. v. 477 U.S. Celotex Humani Gasperini v. Center tive.” for 317, 322-24, 106 2548, 91 L.Ed.2d 265 S.Ct. ties, Inc., 116 S.Ct. 518 U.S. (1986), is not a rule of federal general (1996). rejecting L.Ed.2d 659 procedure; it is for and to tailored limited cases, for retaliation Douglas cases, in emphasized discrimination as we objective of the Illinois likewise Wayne Foundry Corp., Diaz v. Fort substantive,” namely to “manifestly was (7th Cir.1997). part F.3d 711 It is retaliatory “expand[ing] the tort of avoid discrimination, which is law of substantive. Healy it in S.A. discharge.” put Or as Sewerage Metropolitan v. Milwaukee Co. But there is a rather considerable com (7th Cir.1995), Dist., “the The McDonnell stan plication. designed to goals are state’s substantive — apply dard that we most of our retalia shape conduct outside the courtroom really tion cases is not the McDonnell accuracy just improve the or lower the not logical adaptation standard. The judicial process though the cost of the — retaliation, procedural.” means are adaptation we assumed Hiatt a rule practical way A to decide whether McEwen and that have led the Su procedural law is substantive or of state reject preme Court of Illinois to its use is to ask of the Erie doctrine purposes retaliatory cases under the Illinois law of a particular rule is limited to whether the is, discharge, as I have to enti suggested, across the applies substantive area or judgment if summary tle the former, likely to If the it is reflect board. lodging complaint he shows that after to which the federal policy, substantive discrimination, he, not other about defer, and if latter to court should be similarly employees wise situated who did procedural concеrns that product purely subjected an adverse complain, may differ between federal and properly action E.g., Herremans v. Carrera state courts. Inc., satisfactory man performing job

Designs, Cir.1998); Healy S.A. Co. v. Milwaukee ner, presents unless the defendant evi Dist., Sewerage supra, 60 Metropolitan for the dence of a noninvidious reason at 310. It was on this basis that we F.3d adverse action. But most cases this in Harbor v. suggested Ins. Co. Continen prima and circuits hold that the fa- other (7th Corp., tal Bank 922 F.2d 364 retaliation under McDonnell cie case of Cir.1990), of “mend the that the doctrine Douglas requires requires proof of more— hold,” estoppel, a was substantive type of protected a “causal link” between the ex purposes for Erie insofar as it was limited (as pression plaintiff engaged which the cases, just parol the to contract like evi by filing complaint about an unlawful act rule, be might dence which otherwise employ the adverse employer) ‍​​‌‌​‌​‌‌​‌​​‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌​​​​​‌​​‌‌​​‌‌​​‌‍procedure. of of thought a rule “Rules complaining. ment action of which he is parol such as the interpretation, contract Mutual E.g., Family Miller v. American rules, evidence and four-corners are (7th Cir.2000); F.3d 1007 Ins. 203 substantive, deemed because of their effect USA, Inc., 202 F.3d v. Exxon Coal Sauzek contracting parties on the conduct of out (7th Cir.2000); Byers v. Dallas courtroom, the the rules side News, Inc., 209 Morning F.3d through limiting kinds оf operate the evi (5th Cir.2000); Washington Met Jones Int'l, that are admissible.” AM Inc. dence Authority, Associates, Inc., ropolitan Area Transit Graphic Management (D.C.Cir.2000). (7th Cir.1995). The F.3d F.3d plaintiff proper

If this means the must McDonnell has no role to protected expres- that his present evidence in a federal play retaliation suit. But the retaliate, caused-the defendant to then sion Fifth and Eleventh Circuits have held Douglas really regulate does McDonnell link” signifies аll that “causal in this con just allocation of proof the order of protected expression text is that the and has no substan- production burdens of wholly the adverse action “were not unre plaintiff since the implications, tive would lated,” something and that this means that much in a prove have to as retaliation case than that the proof plaintiff less wouldn’t Douglas had never been if McDonnell (or have been fired suffered other adverse heard of. But it would be better then to action) engaged had he protect Douglas al- drop reference to McDonnell is, expression proof, ed than —less cases such as Miller and together, (what for” call philosophers “but causation say, very it go confusingly on to as Sauzek condition) necessary suffice com —will me, plaintiff seems to that after the has plete prima Long case. v. East facie case, made defendant College, 88 F.3d 305 n. 4 field by producing can defeat it evidence that Cir.1996); County Simmons v. Camden the motive for the adverse Education, Board retaliatory, action the plain- was not unless (11th Cir.1985). And some of our cases tiff is able to come back and show that the definition, accept e.g., this Sauzek v. Exx alleged nonretaliatory actually motive was USA, Inc., 918; supra, on Coal 202 F.3d at pretextual. Douglas- That is McDonnell Hunt-Golliday v. Metropolitan Water Rec right, plаce.' all it If speak, but is out of District, 1004, 1014 lamation produced has evidence plaintiff that he Cir.1997) yet without attempting to dis — protected expres- was fired because of his Johnson, tinguish King, and Klein or to sion, gone beyond he has explain wholly what “not unrelated” Douglas by producing actual evidence of Hunh-Golliday, means. Sauzek and conduct, unlawful and that should be actually required wholly (despite our “not enough jury. him to a get language) proof unrelatеd” of a causal re designed give lation, 918-19; 202 F.3d at 104 F.3d at boost when he has no actual evidence 1014-15, Johnson, while a case that recites retaliation) just discrimination but test, accepts the stricter a mere coinci suspicious some circumstances. If he can in timing expressly rejected by dence — prove retaliation with that his evidence prove pro Sauzek as sufficient to that the expression protected fact the cause expression tected employ and the adverse fired, being of his he doesn’t need McDon- unrelated,” wholly ment action were “not gives nothing. nell and it him required 919—-as F.3d complicating picture, Further how causal link! 91 F.3d at 939. ever, disagreement maybe sheer —or Someday we’ll have to decide what the link” muddle—as to what “causal means. prima facie case of retaliation is means, far, If it as I have assumed thus Seventh But it Circuit. whatever is has no King and as we held in v. Tech Preferred (7th relation to McDonnell which is Group, nical F.3d Cir. 1999); meaning not about the link.” of “causal City Wayne, Johnson Fort of issue, however, The Erie Cir.1996), may turn on that F.3d and Klein v. meaning. requirement If the proving University, Trustees Indiana F.2d Cir.1985), plain- cause is so attenuated as to give ‍​​‌‌​‌​‌‌​‌​​‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌​​​​​‌​​‌‌​​‌‌​​‌‍tiff a present winning must boost toward his case that he evidence that had it not been protected expression, ordinary for his would have under rules of he would not pleading production, hаve been fired suffered whatever oth then there is a er action complains), adverse of which he conflict with substantive state then the situation is as I it: inaptly have described what federal courts call the proving Douglas standard way retaliation give must retaliation prima law. If the by state governed

ease law under federal of retaliation

facie case calling logical I what am

is instead Douglas, requir-

adaptation all, then of causation

ing no evidence way in a clearly give it must more In either by state law. governed

case have to be and McEwen would Hiatt

event case Only prima if the facie

reexamined. requires law under federal

of retaliation in the usual causal relation

proof of a attenuation,

sense, no con- is there without law, at least and federal

flict between state Illinois, proof. such requires which Douglas” the “McDonnell

Only then would

standard, misnamed though thoroughly of cau- require proof interpreted

when case, make out a

sation to to state retaliation cases

properly apply courts.

litigated federal HENRY, Petitioner-Appellant,

Lewis Warden, PAGE, Stateville

James Center, Re

Correctional

spondent-Appellee.

No. 00-1164. Appeals, States Court

United Circuit.

Seventh

Argued June Aug.

Decided

Case Details

Case Name: Kenneth Bourbon v. Kmart Corporation

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 4, 2000

Citation: 223 F.3d 469

Docket Number: 98-2433

Court Abbreviation: 7th Cir.