*1 III. Conclusion district court find that the we
Because dismissing habeas Gildon’s not err
did untimely under 28 U.S.C.
petition the merits of 2244(d), not address
§ we do district The decision
his claim.
court is Affirmed. al., Jr., BOYD, et Plaintiffs-
Moses
Appellants, POLICE, et
ILLINOIS STATE Defendants-Appellees.
al.,
No. 02-2880. Appeals, Court
United States
Seventh Circuit. 14, 2004.
Argued Jan. 30, 2004. Sept.
Decided *2 en masse to the
they were transferred (ISP). Unhappy with Illinois State Police transfer, the Scien- their salaries after *3 alleging brought suit under VII tists intentionally discriminated way them that it structured against newly salary terms for the absorbed majority were members group, of which jury racial or ethnic minorities. A of shortly against after found the Scientists receiving clarifying instructions from the court. then filed a district The Scientists trial, motion which the Rule 59 new court district denied. appeal, they challenge in
On given by the district court as structions First, rulings. as two well other in grant that the court erred claim district summary to ISP on their ing judgment actions challenging claim the state’s under their legislation regulating transfer City’s facility. to ISP’s from crime lab 20 ILCS The Scientists con See 415/12e. that ISP tended violated statute be years failed their cause it to consider experience setting salaries. district deciding assumed court without right of private statute created a action complied and then concluded that ISP it did all relevant laws because consider years experience the Scientists’ de (argued), Despres, Jorge Sanchez compensation termining Boyd, levels. et IL, for Geoghegan, Chicago, Schwartz & al., Police, al. v. Illinois State et 2001 WL Plaintiffs-Appellants. (N.D.Ill. 2001). Mar.28, *7 (argued), Wichern Office Nadine J. Second, plaintiff Larry appeals Wilson Attorney Appeals Divi- General Civil grant from the district court’s decision to IL, sion, Chicago, Defendants-Appellees. judgment as matter of law equal protection has styled what Wilson FLAUM, Judge, and Before Chief claim. year retaliation after this law- One WOOD, DIANE P. Circuit POSNER and filed, came across suit Wilson an e- Judges. Kettlekamp, Depu- mail from Teresa ISP’s WOOD, Judge. Circuit DIANE P. ty Director Division of Forensic Services, stating salary in- that Wilson’s are 18 of 51 forensic scientists Plaintiffs (to Scientists) until suspended crease should be further refer as who whom we litigation. light notice because of this Chicago Department worked for the Police (CPD) events, July crime lab until when of these the Scientists amended complaint allege had sic science experience. ISP. Although half of retaliated Caucasian, Wilson violation the transferring group was equal protection Title VII and the clause. theory Scientists’ paid was that ISP them awarded relief under Title VII less because the group as a whole was for-Kettlecamp’s retaliatory actions. Be- identifiably minority and stood in sharp deliberations, jury began fore the how- contrast to predominately ISP’s Caucasian ever, judge granted judgment to ISP workforce. equal as a matter of law on pro- Wilson’s The evidence at trial showed that ISP tection retaliation claim. When the Scien- set levels in consultation with the challenged ruling tists in their Rule 59 *4 Department Illinois of Central Manage- motion, again the district court sided with (CMS), ment Services agency state ISP. authorized to administer the Illinois Per- part company While we with some Code, sonnel seq. ILCS el CMS 415/1 reasoning, district court’s we conclude that follows a standard procedure hiring new any it errors made the instructions were employees. state applicant Each graded is harmless, correctly and that it concluded and then on an if interview list he placed that ISP did not violate the transfer stat- or job she meets the requirements. stated ute and not rights did violate Wilson’s process, After the interview applicants are equal under the protection clause. We given ranked and pend- conditional offers therefore affirm. ing background investigations, polygraph exams, drug and tests. CMS also uses a I procedure standard in setting salaries for In began taking steps to ISP Typically, new hires. applicant paid is merge operations of the CPD’s crime . up prior to 10% over her salary and is then July lab with those of ISP’s crime lab. On salary step by slotted into the established 1,1996, 51 forensic scientists that had been a bargaining agreement collective closest employed by CPD transferred to the state to, 10%, exceeding prior but not over her system. group This consisted 24of Cauca- salary. employees automatically State ad- sians, African-Americans, and five His- step vance one and receive an additional these, panics. Caucasians, Of six two Afri- salary anniversary increase on each annual Hispanic can-Americans and one were employment. date of If applicant supervisors. transferred to ISP as Prior a bargaining covered collective transfer, over 90% of the forensic agreement, being or is hired into a man- scientists at were ISP Caucasian and there agement position, applied, the 10% rule is minority supervisors. were no Given the system. An step employee but there is no processed fact the CPD lab more typically hired under the CMS rules does per year cases than the seven ISP labs any previous not retain benefits from a combined, it group was also true that CPD job, days like sick or accrued vacation. experienced was more than their ISP counter-parts. worked with a ISP CMS to establish procedure variant of this the transfer- Scientists, 18 of the 51 who ring scientists. streamlined forensic ISP transferred, were include seven Cauca- application process permitted sians, 10 African-Americans and one His- carry CPD scientists to over their sick panic. They believe ISP discrimi- addition, days and accrued vacation. nated them on the basis of race paid exempted because it them less than ISP incum- ISP the CPD scientists from the bents the same formal level of foren- probationary period with standard six-month directly money reported who people were than Salaries employees. new state First, employ- stages ISP at various of their two-step process. a to them using
set as a Forensic scientist classified each CPD ment ISP. III, I, II, years on or based Scientist however, Scientists, thought levels, these three experience. Within pay them the same promised had ISP contract, by a union governed which were equivalent expe- salary incumbents with increasing salary. Sec- steps ten
were meeting in No- They pointed to rience. scientist’s ond, at the CPD looked officials during vember adding up compensation, current with 23 employee what a CPD were asked increase, on the the scientist place 10% ISP, earn at years experience would salary step. To assure equivalent closest salary current at CPD of assuming increase, scientist each CPD $43,000. stated that this ISP officials step. one then elevated years service as spent had his 23 person proposals before several ISP considered salary would be employee, the an ISP Sheppo, Mike settling procedure. on this $52,000. trial explained at Sheppo Forensic Sci- chief of the ISP the bureau and at question posed hypothetical, *5 Kolk, Command, Bruce Vander and ences yet meeting ISP had not the time of this the Forensic Science ISP’s Commander salary process determina- finalized Command, they persuaded that testified employees given A handout to CPD tions. salary increase for the to build in a CMS meeting explained at the November 1994 using the device of the scientists forensic “num- would be based on the that salaries using suggested CMS step additional after experience years of forensic science ber of of the procedure. Each Scien- its standard salary present employee’s] and where [an salary increase of between tists received a range.” pay fits into the state’s Shep- after the transfer. 1.5% and 11.6% that ISP, Kolk further testified po transferring and Vander the Scientists After sci- paying the CPD considered ISP never were that their salaries lower complained incum- salary as an ISP entists the same expe- or less equal than ISP scientists with years experience. the same bent with complaints, light rience. of these ISP estab- authorizing legislation Although the Ron Project Coordinator Special asked to the Personnel exceptions lished certain salary investigate agency’s Ewert Code, excep- that these Sheppo testified several of structure. Ewert interviewed the latitude to set give ISP tions did previous at and looked Scientists regard guidelines. to CMS salaries without concluded that salary levels at CPD. He trial, always jury that CMS At learned exist, did ISP although discrepancies some employee’s to an by sets salaries reference in a discrepancies could not address by compensation, not refer- prior level of employees. all manner that was fair to compensation of an incumbent ence to the adjust recommend that ISP Ewert did not experience. The result equivalent scientists, and no of the CPD the salaries that a new hire draw such a rule is adjustments were made. salary experienced than a more em- larger lawsuit, then filed this The Scientists prior salary hire’s ployee the new that their salaries violated alleging experienced more higher than that of the intentionally discrimi- VII because if the hire’s conversely, new employee; of race. against them on the basis nated lower, salary person former trial, following they presented the evi- At comparable than a em- paid less would be First, jury they told the dence. agency. Sheppo at the state Both ployee scientists, the 51 earning less addition to CPD and Kolk testified to Vander trainees, motivating forensic scientist factor in salary hired 85 new defendant’s de- overwhelmingly Caucasian group that was If plaintiffs terminations. have not proven (79 Caucasians, African-Americans, five both of the above prepon- elements Second, they Hispanic). alleged and one evidence, your derance of the verdict must rejected a proposal that Vander Kolk defendant, you be for pro- need not allow the forensic scientists to receive se- ceed further in considering this claim.” years at niority credit for their CPD be- The additionally district court instructed: proposal cause he favored another “As used in these you may instructions “protects people,” referring our to ISP’s find- that plaintiffs’s [ ] [sic] race was a predominately employees. Caucasian motivating factor if the racial composition Third, they testimony elicited from Robert plaintiff group played part [a] or Chapman, a CPD scientist who is not a role in the defendant’s determina- case, plaintiff meeting about a tion to plaintiffs’s set [sic] salaries. How- Chapman had with CPD director Robert ever, composition the racial Stacey problems after there had been with group need not have been the reason Chapman’s polygraph Stacey, test. who for defendant’s salary determination.” ISP, being Chap- was also moved told jurors verdict form instructed the man that he the lab at ISP to be wanted to find the Scientists if proved by for* “lily realizing white. And what he had . preponderance of the evidence that ISP said, changed squeaky he that to clean.” “discriminated them because of Chapman Stacey said that claims also race the determination of their salaries.” going he was to direct the State Police to deliberations, During sub- investigate people neighbor- from certain *6 following mitted the note to the court: Fourth, in Chicago. hoods the Scientists “We find that the instructions to jury the claimed that Ewert did not take their con- question jury and the on the verdict form seriously, telling plaintiffs cerns one of the ask us to things. decide two different Do “ally.” that he not her The Scientists we [to] need decide whether race was ‘a’ jury they told the were “humiliated” determining factor or ‘the’ factor in sala- they paid to discover that were less than factor, If ries? it is the does this mean experi- ISP forensic scientists with less important that it is the most multiple ence. factor, factors? And if it is a how much of arguments, After the in- closing parties (emphasis a factor does it have to be?” formed the district court that there was no added). objections strong Over from the dispute respect jury with instruc- counsel, judge Scientists’ the sent back a tions. court jury reminded the “not note instructing jury the as follows: “To single out one instruction alone as stat- motivating be a factor the forbidden crite- law, ing the but must consider the 'instruc- significant rion must be a reason the reaching your tions as a whole” in verdict. It employer’s action. must make such a It then following delivered the agreed- difference the outcome of events that it upon instructions: “Your verdict must be fairly catalyst can be characterized as the plaintiffs the defendant prompted employer which the to take the Illinois plaintiffs’ State Police on race dis- employment adverse action and a factor proved crimination claim if have all of employer without which the would not following by preponder- the elements the Shortly receiving have acted.” after First, ance of the evidence: that defendant jury response, court’s returned a ver- paid the plaintiffs less than other employees State Police dict for ISP on the Title race discrimi- comparable.or VII Second, experience. less that race was a nation claim. trial, that the instructions did must show both for a new the Sci- their motion court erred the law and that the argued adequately that the district not state
entists clarifying instruction because giving prejudicial to them because the error was the law and undermined it misstated likely to be confused or misled. jury was During clos- closing argument. Inc., Scientists’ Airlines, 213 F.3d v. United Gile attorney the Scientists’ ing arguments, Cir.2000). jury in- An erroneous jury that the instructions directed told the prejudice the Scientists struction could motivating a to find that “race was them “considering the instructions as a unless pay Scientists factor” ISP’s decision whole, evidence and along with all similarly em- than situated Caucasian less arguments, jury was misinformed in the On two later occasions ployees. applicable about the law.” Susan Wakeen attorney reiterated closing, Scientists’ Galleries, Co., Inc. Drake Doll v. Ashton factor, motivating that race had to be “a (7th Cir.2001). to the Rule 59 responded factor.” chal appeal, party On neither motion, court’s instruction arguing in adequacy original lenges the law, prejudice that no did not misstate given by structions the court. What is at shown, had and that the Scientists in supplemental issue here is the court’s showng that present failed to evidence telling struction the Scien any role in the determi- played race catalyst as “the nations. The district court denied Sci- tists’ race needed serve trial. employer entists’ motion for new to take the prompted action, employment and a factor adverse
II employer without which the would not begin by considering the Sci agree We have acted.” We with the Scientists sup entists’ claim that the district court’s “catalyst” The term that this was error. gravely misled the plemental instruction so anywhere in the appear does not text required. that a new trial is When has never been used Title VII and challenges judge’s give decision to party any of its decisions in Supreme Court instruction, we review that supplemental *7 Gehring also v. terpreting Title VII. See Akra decision for an abuse of discretion. (7th Corp., Case 43 F.3d 343-44 Cir. (7th Co., bawi v. 152 F.3d 695 Carnes 1994) for (criticizing the district court us Cir.1998); Mealy, v. 851 United States “determining factor” in ing phrase (7th Cir.1988). 890, 901-02 As for F.2d jury phrase because such a is instructions supplemental the content of the instruc Age in in Em not used Discrimination tion, review is the same as the standard of (ADEA)). ployment appears Act It that any issue. It is “a instructional may district court have borrowed lan jury one: we look at instructions liberal Andersen, guage from Foster v. Arthur only to determine if taken as a whole LLP, 1029, 1033-34 168 F.3d Cir. correctly jury were sufficient to inform 1999), crafting supplemental in instruc if applicable of the law. Even the instruc tion, considering phrase a “be case misguides jury, tion contains errors or disability” cause under Americans only if a litigant the error is reversible (ADA), 42 with Disabilities Act U.S.C. Booth, prejudiced.” Molnar v. 229 F.3d 12112(a). § ADA But the standard (7th Cir.2000) (internal 593, 602 citation the same as Title use be VII’s. We omitted). to remind the district opportunity jury instructions should not be on an courts that
To win a new trial based
instruction,
together
snippets
appel-
from
jury
patched
erroneous
the Scientists
context,
on
than Title
re-
but
den
the Scientists
VII
taken out of
opinions
late
so, however,
language
quires.
of the
Even
the Scientists
rely first on the
should
Costa,
if
prevail only
prejudi-
539 U.S.
can
the error was
Desert Palace
statute.
cial,
90, 98,
Title VII
in harmless error when it was not
resulted
any individ-
“to discriminate
ployer
clear that
would- have decided
race,
...,
ual
because
such individuals’s
(cid:127) instructions);
differently
proper
see
sex,
color,
origin.”
national
religion,
or
Adver., Inc.,
Grey
also Renz v.
added).
2000e-2(a)(l) (emphasis
§
U.S.C..
Cir.1997)
(2d
(employer’s
evidence
VII,
add-
Congress
amended
poor
discharged plaintiff
that it
because
employment practice
that “an unlawful
ing
strong
“is so
that a correct
performance
complaining party
is established when
proof
charge
plaintiffs
on the
standard
race ... was a motivat-
demonstrates that
a
in her ADEA claim would not have made
any employment practice,
factor for
ing
verdict”).
difference to the
though other factors also motivated
even
2000e-2(m).
§
practice.”
U.S.C.
trial,
at
presented
The evidence
does not define “mo-
Although the statute
already, failed to show
we have described
factor,”
tivating
logically there is
differ-
as a factor
that race was ever considered
factor,
motivating
ence between
setting
salaries.
Scientists’
precipitating
that is the
force
single factor
to create
worked in consultation
CMS
(one
catalyst)
an action.
definition of
hiring
for the
procedure
a standardized
parties
initial
to which the
instruction
Ewert, who the
scientists. Neither
CPD
“race,
correctly
agreed
stated
unsympathetic to
believed was
Scientists
composition
factor
the racial
motivating
Stacey,
nor
who referred
complaints,
played
part
or a
plaintiff group
white,”
“lily
played
crime lab as
determina-
role
the defendant’s
Fi-
determining
their salaries.
any role
*8
plaintiffs’s
salaries. How-
[sic]
tion to set
“protect-
to
nally, Vander Kolk’s reference
ever,
composition
plaintiff
the racial
of
context, simply
in
ing
people,”
our
taken
only
reason
group need not have been
does not lead to an inference
salary
for defendant’s
determination.”
discriminated
Scientists were
judge
should have referred
Kolk was refer-
the basis of race. Vander
instructions,
adequate-
back to these
whole, not
employees as a
ring to ISP
ly
Mealy,
the law.
be a factor analysis. motive Because the years setting compensation into mixed of service prejudice demonstrate cannot Scientists levels. instructions, supplemental
from the
question
an issue raises a
When
to a new trial.
are not entitled
statutory interpretation,
propri
of
or the
ety
summary judgment,
of
the standard of
Ill
Sports
novo.
review
de
APS
Collect
to the heart of the
turn then
We
ibles,
Time, Inc.,
Sports
Inc. v.
question
Scientists’ case on the merits: the
Cir.2002).
624, 628
“Illinois law states
discriminatory sys
whether ISP created
unambiguous,
clear and
stat
‘[w]here
way
integrated
it
tem the
the CPD
utory language must
be enforced
enact
into its own ranks. The Illinois
personnel
ed, and a court
from
depart
20
legislature enacted
ILCS 415/12e
plain language
Weinberg City
....’”
v.
of
integration
facilitate the
of
CPD foren
(7th Cir.2002)
1029,
Chicago, 310 F.3d
scientists into the state of Illinois’s
sic
(quoting People
ex rel. Devine
v.
(a)
system.
pro
Subsection
of the statute
$30,700.00
Currency,
United
States
vided that
the ISP could “enter into an
142,
781,
Ill.2d
262 Ill.Dec.
766 N.E.2d
intergovernmental
agreement with the
(2002)).
plain language
of
City Chicago
respect
hiring,
of
explicitly provide
the statute does not
for a
classification,
fit
compensation, merit and
action,
ness,
private right
very likely
of
and it is
employment
and conditions of
of for
employees”
Chicago
mer
De
cannot
implied
Police
one
be
under Illinois
12e(a).
partment
lab.
Id. at
DaRosa,
Subsection
Metzger
law.
209 Ill.2d
(b)
provisions
some of the
listed
such
(2004).
Ill.Dec.
805 N.E.2d
agreement
encompass, including
should
va
view, however,
In our
the district court’s
accrual,
leave,
cation
and background
sick
analysis
implied rights
unnecessary
of
12e(b)(l)-(6).
Id. at
At
checks.
issue here
to resolve this dispute.
provision stating:
is the
“The employee’s
In Noyola v. Bd.
Educ.
of
of
period
Chicago
of service as a
Police De
City
Chicago, 179 Ill.2d
partment employee shall be considered for
(1997),
Ill.Dec.
897 Cronson, equal protection guaranteed by him of “as Madden v. (citing at 86 N.E.2d by wilfully Ill.Dec. 501 N.E.2d the Fourteenth Amendment re- 114 Ill.2d (1986)). only granted A be taliating against writ will due to his involve- Wilson clear, affirma “can show in At present the Scientists ment case.” the close of relief, duty a clear of the right evidence, judgment tive moved for as act, authority in the and clear defendant to claim, arguing matter of law on this that comply the writ.” Lew defendant to had not shown a difference relief Wilson (cita is, 1, 710 at 813 238 Ill.Dec. N.E.2d under a Title VII and an equal available omitted). tions claim. protection retaliation ISP asserts , recog- that law Seventh Circuit does not ask for manda- The did Scientists equal protection nize an retaliation claim relief, it too late now for them mus and is alleged. on the that has facts Wilson Moreover, on this record there is try. remedy. extraordinary no basis for (cid:127) initially The district court denied ISP’s undisputed material facts demonstrate motion, during but later it reconsidered an period of did “consider” their granted off-the-record conference and Chicago Depart- Police service with the judgment as a matter of law in ISP’s favor. process establishing two-step ment in the day,- court denied following Wil- The district court compensation levels. equal protec- son’s motion to reinstate the did not violate correctly found that ISP argued claim. had that it was a tion Wilson 12e(b)(3) authorizing legisla- Section logical prece- extension of Seventh Circuit tion. permit such a claim. When dent Wilson trial, again the court raised the issue after IY denied the Rule 59 motion for the “reasons year one after this lawsuit on the record.” The lower court’s stated filed, Larry filled Wilson reasons, however, found are nowhere to be supervisor’s and reviewed the supervisor in the record. e-mail, job. required by At that Typically, we will reverse for a being time Wilson was considered 59 motion to alter or denial of Rule supervi- and immediate increase his. judgment amend a abuse an increase. Wilson sor had recommended Energies, Inc. v. Shell discretion. Dersch Kettlekamp in his read an e-mail from (7th Cir.2002). Co., 846, 855 stating any account sala- Oil 314 F.3d supervisor’s suspend- what the claim ry precisely increase for Wilson should be That is Scientists litiga- until further notice due to this assert that the dis happened ed here: quickly court, amended wrong legal tion. The Scientists by applying trict retaliation complaint to add two rule, necessarily its discretion. abused (7th brought claims. The first was under Gallitano, Khan v. 180 F.3d Kett- jury. Although Cir.1999). VII and went the district Our review of explain the e- lekamp attempted novo. interpretation court’s of the law de by discussions with prompted mail was States, Id.; see also Koon v. United counsel, found in Wilson’s legal 81, 100, 135 L.Ed.2d U.S. S.Ct. $25,000 compensato- favor awarded (1996) (if applies a court an erroneous ry damages. law, “by definition” it abuses view of the discretion). any may affirm on We titled, “42 claim U.S.C.
The second Omoseg supported by the record. ground Discriminatory Re- Intentionally § 1983— Wells, 668, 677 Cir. com- bon taliation.” asserted Wilson 2003). presents, this claim deprived Because plaint Kettlekamp’s actions *10 898 law, question plaintiff bypass we need to the elaborate “ad- VII
straightforward
procedures
by
court
to
it for the district
ministrative
created
not remand
applicable
Id.
to
(procedures
its rationale.
statute
retali-
provide
any
ation claims as to
other claims under
Kettlecamp
claims
re
Wilson
VII),
court,
go directly
Title
and
against
filing
him for
a lawsuit
taliated
through
illogical expedient
equating
rights
equal pro
under the
violation of his
against
person
filing
discrimination
out,
correctly points
tection clause. As ISP
charges of sex discrimination to sex dis-
free from retaliation
right
to be
Yatvin,
crimination itself.”
840 F.2d at
the First Amendment
vindicated under
be
Yatvin,
419.
plaintiff
Like the
Wilson
VII,
equal protection
not the
or Title
but
Kettlecamp
has not asserted that
retaliat-
Indianapolis-Mar
v.
clause. Grossbaum
against
ed
him on
protected
the basis of a
Auth.,
1287,
County Bldg.
100 F.3d
ion
membership
trait or because of his
in a
(7th Cir.1996) (“We
imply,
1296 n. 8
do not
class,
particular
but
because of his
however,
un
that retaliation claims arise
participation in
litigation.
this
This is
That
Equal
der the
Protection Clause.
harm that he could redress under either
general right
clause does not establish
Amendment,
Title VII or the First
but not
retaliation.”);
Lacke,
Gray
be free from
v.
protection
the equal
Gray,
clause.
885
Cir.1989)
(7th
399,
(“Gray’s
414
885 F.2d
F.2d at 414.
right
pro
to be free from retaliation for
testing sexual harassment and sex discrim
passing
makes
reference
Wilson
VII,
(7th
right
Willowbrook,
ination is a
created
Title
to Olech v.
protection rights were violated when her V employer filing retaliated her for reasons, For these judg- we Afferm charges of sex discrimination. found We ment of the district court. argument “retaliating weak because against a person filing charges of sex POSNER, Judge, concurring Circuit discrimination is not the same as discrimi judgment opinion and the of the court. nating against person grounds sex ” .... explained Id. at 418-19. We I agree despite that we should affirm Congress would not have supplemental wanted the error instruction. *11 point way drafting To the to the of an jury may have been fact that The instruction, instruction, decisively by intelligible consider the follow- influenced length of its deliberations suggested by ing cases: (2 hours) given the instruction
before plaintiff proves 1. that the defen- (8 minutes), important. is not and after plaintiffs of dant is hostile members not have been allowed The case should sex, ethnicity, (religion, race etc.—I’ll use jury; jury no could go to the reasonable “race” to’ stand for all the forbidden . in case. have violation found period. grounds), is to My writing separately reason plaintiff proves 2. The that the defen- job judges district to do a better urge dant, hostility, because of that would have “motivating factor” presenting the issue of (or fired taken other adverse action original jury to a than was 'done in against) him had even he been satisfac- instruction, instruction though even tory ’in worker the sense that had he been the law. It be un- did not misstate “right” of the face he would have been jury think that instructions are realistic to retained. very jury; principal to the their important in importance may placing lie bounds plaintiff proves thing 3. The the same lawyers say jury in what the can presents as in 2 but the defendant case Still, pains some closing arguments. any- evidence that it would have fired him jury to make instructions should be taken race, way, regardless of his because he was Gehring we said in v. Case clear. As unsatisfactory employee. an (7th Cir.1994), in Carp., 43 F.3d 4. The defendant would not have fired the use of the term “deter- disapproving plaintiff for his race alone or for his mining factor” in instructions cases alone; it was some combina- performance law, age discrimination “What under performance tion of racé and that caused should, can, to know be needs firing. performance marginal; His Jury in- expressed simple language.” edge. him over In pushed his race language structions should turn the (though not words that would other words judicial is opinions, statutes and jurors), meaningful 'to most race and be readership generally lay not drafted with a necessary performance were each condi- mind, language poses into concrete neither was a discharge, tions of the but jurors An in- lay decisions for to make. In case race is a sufficient condition. “motivating struction that uses the term condition; 3, performance in case sufficient factor” does not do this. is a sufficient condition. try original instruction did to ex- the defendant is entitled case “you may plain- find that plain the term: “motivating to be a fac judgment, because factor’ if the ‘motivating tiffs’ race was a some, hostility have even tor” racial has to composition plaintiff group racial attenuated, effect; to motivate is to anif. or a in the defendant’s played part role [a] influence, provide impetus to action. salary plaintiffs’ to set sala- determinations Insurers, American Stopka v. Alliance However, composition racial ries. (7th Cir.1998); Cham F.3d plaintiff group need not have been the Air, Inc., 17 v. American Trans F.3d bers reason for defendant’s determi- Cir.1994); Sony Parker say something plays nations.” But to Entertainment, Inc., F.3d Pictures part “a or a role” about decision (2d Cir.2001). Plenty peo complaining which the is sorts with- prejudices of various ple harbor illuminating. *12 900 (7th Cir.1987); Heckler, acting
out on them. Title VII does not 664 Germane (7th prejudice 366, Cir.1986); forbid as such. Price Water- 804 F.2d 368 Mano 228, 262, house v. 490 109 Hopkins, U.S. University College haran v. Columbia (1989) (concur 1775, 104 S.Ct. L.Ed.2d 268 590, Physicians Surgeons, & 842 F.2d ring opinion). (2d Cir.1988). words, if 594-95 other injured plaintiff any the would have been 2, plaintiff proved
In ease
the
has
so,
way,
anything;
he could not recover
motivating
factor.
if no
race was
Even
produced
once the defendant
might
other factor that
have influenced a
some evi
plaintiff
decision to fire
present,
possibility,
were
dence of this
the burden of
he would have been fired.
If,
negating it
plaintiff.
rested on the
therefore,
3,
my
as in
case
the defendant
Case 8 is where the 1991
to
amendment
presented
race,
evidence that
while a suffi
“motivating
VII
inserted
factor”
firing
cient condition for the
of the plain
§
into the statute
42
bites.
U.S.C.
2000e-
tiff,
necessary
was not a
condition —be
Palace,
Costa,
2(m); see Desert
Inc. v.
539
anyway,
cause he would have been fired
90,
2148,
U.S.
128 S.Ct.
the defendant carries this it es course, jurors Of should not be bur- capes but, having pay damages by vir dened with terms like “sufficient condi- amendment, tue of the 1991 pay still has to (or “necessary tion” or condition” for that plaintiffs attorney’s fees and is also “catalyst”) matter or introduced to the subject to declaratory injunctive relief. complex meanings § 2000e-5(g)(2)(B); They U.S.C. “cause.” Kennedy v. Newman, Ltd., Schoenberg, simply plaintiff Fisher & 140 should be told (7th Cir.1998); F.3d Borgo prove fired, v. must that he would have been (D.C.Cir. Goldin, 204 F.3d n. race, because of his even he had been (not satisfactory necessarily worker a su- 2000). worker, perlative but a worker who would case, In an ordinary tort and Title VII have been retained had he been of a differ- prior amendment, cases as well to the 1991 race), ent but that if pres- the defendant plaintiff would have had to prove not ents evidence to show the plaintiff only a legal duty by breach of the defen- anyway, regardless would have been fired dant but also that had it not been for that race, his because he was an unsatisfac- breach the would not have been injured. McQuillen E.g., tory employee, it is the v. Wisconsin defendant’s burden Council, Education Ass’n prove preponderance other white. Under the facts assumed and infor- precise more This is evidence. “motivating factor” the black will be fired but not 'case than talk about mative part white, or a something “played his deficiencies are not because and whether fired; action. in the defendant’s enough get role” alone one one must be *13 “wrong” race as well. It is a clear of the argues that in this case The defendant with conse- case of racial discrimination' ap- is factor” amendment “motivating employer An doesn’t have to quences. case, and in a “mixed motive” only plicable ' marginal' employees, or for that retain and case. The Second “pretext” this was a ones; but he cannot use superior matter accepted argu- have Third Circuits those he re- race to differentiate between Pennsyl- v. ment. Watson Southeastern only and those he fires. The differ- Authority, 207 F.3d tains Transportation vania (3d Cir.2000); 2 that if Fields v. New this cáse and case is 214-20 ence between n worker, & Mental Retardation plaintiff were a better he York State Office Disabilities, Developmental despite been retained the de- might have (2d Cir.1997); Supreme Court hostility, racial and so there is fendant’s in the Desert Palace to address it declined in which he contributed to his own sense at 94 n. 123 S.Ct. See 539 U.S. case. this, But it should be made downfall. jungle through cut try Let me 2148. jury, legal significance. has no clear to put If a decides verbiage. defendant 1; plaintiff wins So: defendant wins just (actually partial de- on the defense with an goes and 3 fense, against damages but a defense proving the burden of placing instruction relief) have that he would against other relation on the an absence of a causal he makes the plaintiff anyway,' fired defendant. or, as I would case mixed motives case a jury!), not to a be- say (though prefer clearer, a case dual
cause it is a little race, He performance. also causes: but instead, argues he it case 3. But
makes firing he had for only
that the reason performance, this means poor broke; complete he wants going
he is defense, that is all that partial not the one CHICAGO, Plaintiff- CITY OF allows, and he can 1991 amendment Appellant, only if the absolution
obtain that performance plaintiffs that the convinced HOLDINGS, him; COMCAST CABLE firing only reason L.L.C., al., et Defendants- If at all. picture was not race Appellees. convinced, falls performance jury is not left with picture, and we are out of the No. 03-3815. plain- in the factor case which the Appeals, case 2. States Court dismissal is race: . United tiffs Seventh Circuit. the most troublesome. seem Case plain- clear that the Actually perfectly it is Sept. 2004. Argued it. can see tiff should win We 1, 2004. Decided Oct. employees of two comparing the situation job, doing the same employer, same is black and subpar but one equally both