Gеorge TOMANOVICH, Plaintiff-Appellant, v. CITY OF INDIANAPOLIS and INDIANA DEPARTMENT OF TRANSPORTATION, Defendants-Appellees.
No. 05-1653.
United States Court of Appeals, Seventh Circuit.
Argued April 12, 2006. Decided Aug. 8, 2006.
457 F.3d 656
The Opposition Aldermen rely on Rosenberger v. Rector and Visitors of University Of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), and Legal Services Corp. v. Velazquez, 531 U.S. 533, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001), but neither case is applicable here. Rosenberger involved the question of viewpoint discrimination within a speech forum created by a student organization fund established by a public university to encourage a diversity of views from private speakers. Rosenberger, 515 U.S. at 834, 115 S.Ct. 2510. Velazquez involved a First Amendment challenge to a particular advocacy restriction in the federal subsidy program that established the Legal Services Corporation to provide funding for indigents’ private civil litigation. Velazquez, 531 U.S. at 536, 121 S.Ct. 1043.
This case involves neither a City-created speech forum nor a generalized City subsidy program for private litigation. Rather, the City agreed to pay the litigation expenses of the aldermen who entered the redistricting litigation in defense of the City‘s remap ordinance. The positions of the City and the Administration Aldermen were thus aligned in the redistricting litigation, and in that sense, the Administration Aldermen‘s “speech” was the City‘s “speech.” The government “speaks” when it acts to “promote its own policies or to advance a particular idea.” Id. at 541, 121 S.Ct. 1043.
The Administration Aldermen‘s defense of the legality of the remap ordinance plainly promoted the City‘s policy; the Opposition Aldermen‘s legal attack on the ordinance did not. Velazquez reiterated that “viewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker.” Id. Rosenberger and Velazquez do not support the Opposition Aldermen‘s free speech claim. Rust, Regan, Harris, and Maher foreclose it.
The judgment of the district court is REVERSED and the case is REMANDED for entry of judgment for the City of Chicago.
Mark T. Robbins (argued), Haskin, Lauter, Larue & Gibbons, Indianapolis, IN, for Plaintiff-Appellant.
Robin C. Clay (argued), Frances Barrow (argued), Office of the Corporation Counsel, Indianapolis, IN, for Defendant-Apрellee.
Before POSNER, RIPPLE, and MANION, Circuit Judges.
George Tomanovich sued the City of Indianapolis and the Indiana Department of Transportation, alleging that they retaliated against him for engaging in protected activity in violation of Title VII. Tomanovich also alleged that the City blacklisted him in violation of
I.
George Tomanovich first began working for the City of Indianapolis (“the City“) in 1976. He left the City‘s employ in the 1990‘s, but was rehired in March 2000 as the Natural Resources Manager for the City‘s Department of Parks and Recreation. In July 2000, Tomanovich transferred to the City‘s Department of Asset Management, where he worked as a Senior Project Engineer. Tomanovich again changed jobs in July 2001, when he joined the City‘s Department of Public Works (“DPW“) Engineering Division as an Administrator of Construction Services.
In early 2002, Mona Salem became the Deputy Director of the DPW and Tomanovich‘s direct supervisor. A few months after Salem took over as Tomanovich‘s boss, he filed an internal complaint against Salem because he believed there was inequity between his salary and the salaries of
On June 3, 2002, Salem issued Tomanovich a written notice of unacceptable performance. In this notice, Salem identified four areas of deficiency, specifically Tomanovich‘s (1) failure to perform his duties in a satisfactory manner, including untimely completion of his duties, canceling certain meetings, and failing to obtain pre-approval for actions he had taken; (2) failure to conform to established work standards or supervisory orders by not submitting weekly reports; (3) failure to show courtesy and respect to his supervisor and other DPW employees; and (4) failure to exercise good judgment as a manager. Based on these deficiencies, Salem placed Tomanovich on a Performance Improvement Plan.
A little over a month later, on July 10, 2002, Tomanovich filed his first charge of discriminаtion with the Equal Employment Opportunity Commission (“EEOC“). In that charge, Tomanovich alleged that the City was retaliating against him for engaging in protected activity. On August 23, 2002, Salem issued an Updated Notice of Unacceptable Performance to Tomanovich. This notice noted some areas of improvement, but also identified five areas for improvement in his management skills. The notice also warned him that “failure to sustain the expected level of performance may result in termination without additional notice.”
While still working for the City, Tomanovich filed suit under Title VII against the City, Salem, and three other employees on September 18, 2002. Tomanovich later failed to attend a November 4, 2002, meeting with Sаlem at which Salem was to review his performance. Then, on November 12, 2002, the City fired Tomanovich. Tomanovich responded by filing a second charge of discrimination with the EEOC alleging that after he filed his first charge of discrimination, Salem “began intensifying her scrutiny of my work.” He further claimed that the City retaliated against him by refusing to consider him for other positions within City government.
On February 4, 2003, Tomanovich applied for the position of Construction Engineer Trainee with the State of Indiana Department of Transportation (“INDOT“). To apply for the position, Tomanovich had to complete a written application which, among other things, required him to authorize INDOT to contact his former employers. For work experience, Tomanovich listed, among other jobs, his most recent employment as Administrator of Construction Services with the City. He stated that the reason for leaving that position was “separation of employment.” The “Work Experience” section of the Application noted that “[e]xperience that cannot be confirmed is not acceptable.”
At the time that Tomanovich applied for the Construction Engineer Trainee position he was also a candidate for Indianapolis City Council. Not knowing of his candidacy, on March 13, 2003, Stephen Risch of INDOT‘s Greenfield District Office offered Tomanovich the job of Construction Engineer Trainee. Once the candidacy was discovered, however, INDOT‘s Chief Legal Counsel Kelly Whiteman concluded that Indiana law prohibited an INDOT employee holding an engineering position from running for elected office. As a consequence, on March 19, 2003, Whiteman rescinded INDOT‘s offer to Tomanovich by letter, informing him of the statutory prohibition against INDOT engineers running for elected office.
In response, Tomanovich withdrew his candidacy for City Council and, on March
Around this same time, Vaneetta Kumar, a deputy commissioner with INDOT, asked Trout whether INDOT was “hiring someone by the name of Tomanovich.” Trout answered in the affirmative and Kumar, who had previously worked for the City, then responded that “there were some issues with that.” Trout then sent an email to Risch telling him not to make an offer to Tomanovich, stating “[t]here‘s problems.” A couple of days later, Trout told Risch “[w]e are not going to hire Mr. Tomanoviсh.”
On March 24, 2003, Tomanovich called Risch and Risch told him his employment with INDOT was still “on hold.” After additional attempts to obtain information on Tomanovich‘s employment with the City failed, on May 15, 2003, Whiteman sent Tomanovich a letter stating that INDOT “performed a routine check of your employment history. Your previous employer, the City of Indianapolis, refused to provide any information other than your dates of employment. Because we are unable to verify any information regarding your job performance, we have decided that no further offers will be forthcoming.”
Tomanovich responded by amending his discrimination complaint. In his amended complaint, in addition to his retaliation claim against the City, Tomanovich added a claim against INDOT for retaliation. Tomanovich also added a claim against the City, alleging that Indianapolis blacklisted him in violation of
II.
On appeal, Tomanovich argues that the district court erred in granting the defendants summary judgment on his retaliation claims. We review a district court‘s grant of summary judgment de novo, viewing all of the facts and drawing all reasonable inferences in favor of the nonmoving party. Lim v. Trs. of Ind. Univ., 297 F.3d 575, 580 (7th Cir.2002). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.
Title VII makes it unlawful “for an employer to discriminate аgainst any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by [Title VII].”
A. The City
1. The Direct Method
Tomanovich argues on appeal that he presented sufficient evidence under the direct method that the City retaliated against him so as to avoid summary judgment. As noted, under the direct method, Tomanovich must prove that he (1) engaged in a statutorily protected activity; (2) suffered an adverse employment action; and (3) that a causal connection exists between the two. Id. at 903.
As to the first element, Tomanovich points to the three charges of discrimination he filed with the EEOC, noting “[o]bviously, the filing of a charge of discrimination satisfies the first element ....” Of course, he is right. See Ajayi v. Aramark Bus. Serv., Inc., 336 F.3d 520, 533 (7th Cir.2003) (holding that there is “no dispute that [the plaintiff] satisfied the first element by filing her EEOC charge“). Therefore, Tomanovich presented sufficient evidence to satisfy the first prong of the direct method.
However, in his brief, in arguing that he presented sufficient direct evidence of retaliation, Tomanovich also focused on the internal grievance he filed with the City on March 26, 2002, claiming “discriminatory treatment with respect to his pay,” and a “second grievance regarding sexual harassment” on April 25, 2002. Although filing an official complaint with an employer may constitute statutorily protected activity under Title VII, the complaint must indicate the discrimination occurred because of sex, race, national origin, or some other protected class. See Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir.1997). Merely complaining in general terms of discrimination or harassment, without indicating a connection to a protected class or providing facts sufficient to create that inference, is insufficient. Id. (holding that the plaintiff‘s general complaint about management style without raising the subject of sexual harassment fails to constitute protected activity); Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 727 (7th Cir.2003) (affirming the district court‘s grant of summary judgment to the employer on the plaintiff‘s retaliation claim because the plaintiff‘s complaint to his employer “did not invoke any action protected by Title VII“); Miller v. Am. Fam. Mut. Ins., 203 F.3d 997, 1008 (7th Cir.2000) (holding that the plaintiff did not engage in a protected activity where “[h]er complaints instead concеrned a general dis
In this case, in complaining about pay discrimination, Tomanovich did not claim that the discrimination resulted from his national origin or his membership in another protected class. In fact, in his deposition, Tomanovich stated that he did not believe his salary was tied to his national origin or his relationship with Salem. Additionally, while in his brief Tomanovich claims he complained about “sexual harassment,” the record reference Tomanovich cites does not support his characterization of this griеvance as a complaint about sexual harassment. Rather, Tomanovich cites to a single page in his deposition, wherein he stated that he spoke with the City regarding “issues of harassment.” Tomanovich fails to point to any evidence that in complaining to the City he indicated the alleged harassment was based upon his sex or was sexual harassment. Accordingly, neither the March 26, 2002, nor the April 25, 2002, grievance constitutes “protected activities” for purposes of Title VII‘s anti-retaliation provisions. See, e.g., Gleason, 118 F.3d at 1147; Sitar, 344 F.3d at 727; Miller, 203 F.3d at 1008.
As to the second element, Tomanovich points to numerous events that he claims constitute adverse actions, including his placement on a Performance Improvеment Plan on June 3, 2002; his updated notice of unacceptable performance on August 23, 2002; his firing on November 12, 2002; the City‘s subsequent refusal to rehire Tomanovich; and the City‘s refusal to provide INDOT with details of his performance record with the City.
Tomanovich, however, did not file his first charge of discrimination with the EEOC until July 10, 2002, and, thus, the City‘s prior decision to place Tomanovich on a performance plan on June 3, 2002, could not have been retaliatory for the later EEOC filings.2 (And as noted, the internal complaints failed to constitute “protected activities.“) On August 23, 2002, several weeks after Tomanovich filed this first charge with the EEOC, Salem issued to Tomanovich an Updated Notice of Unacceptable Performance. It is questionable whether updating Tomanovich‘s Notice of Unacceptable Performance constituted “a materially adverse action.” See Burlington Northern and Santa Fe Ry. Co. v. White, — U.S. —, 126 S.Ct. 2405, 2415, 165 L.Ed.2d 345 (2006) (holding that to state a retaliation claim, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination“) (internal quotations omitted). Firing Tomanovich, however, clearly constituted a materially adverse action, and the City fired Tomanovich on November 12, 2002, which was after Tomanovich filed his complaint with the EEOC on July 10, 2002, and filed suit on September 18, 2002. The question then is whether Tomanovich satisfied the third prong under the direct method, namely, whether Tomanovich presented direct or circumstantial evidence that a causal con-
Tomanovich claims that the timing of his firing constitutes circumstantial evidence to establish the requisite causal connection, pointing to the proximity between his filing a complaint with the EEOC on July 10, 2002, and filing a lawsuit against the City under Title VII, on September 18, 2002, and his termination on November 12, 2002. However, “suspicious timing alone rarely is sufficient to create a triable issue.” Moser, 406 F.3d at 905. Moreover, while “[t]here is no bright-line rule as to the amount of evidence necessary to survive summary judgment under the direct method, ... it is clear that mere temporal proximity is not enough to establish a genuine issue of material fact.” Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 981 (7th Cir. 2004).
Here, more than four months elapsed between the time that Tomanovich filed his complaint with the EEOC and his firing. This court has held a temporal connection of four months failed to establish a causal connection between a protected activity and an adverse action. See, e.g., Longstreet v. Ill. Dep‘t. of Corr., 276 F.3d 379, 384 (7th Cir.2002) (holding that even had plaintiff shown an adverse action, a four-month proximity was insufficient to establish a causal connection); see also Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 919 (7th Cir.2000) (holding that a three-month gap alone could not reasonably support a causal connection for a retaliation claim). Although only two months expired between Tomanovich‘s lawsuit and his firing, in this case the City had placed Tomanovich on a performance plan in June, noting several performance problems. While the City updated Tomanovich‘s performance problems in August, which is after he filed his first complaint with the EEOC, there is nothing suspicious about this timing. Before Tomanovich filed his complaint with the EEOC, the City informed Tomanovich that it would update the Notice, indicating areas of notable improvement as well as areas which still required attention. Under these circumstances, this is not the rare case in which temporal proximity, without more, established a causal connection. See Moser, 406 F.3d at 905 (explaining that “numerous incidents brought [employee‘s] professionalism and ability ... into question” and thereby undermined any inference of suspicious timing); Juarez v. Ameritech Mobile Commc‘n, Inc., 957 F.2d 317, 321-22 (7th Cir.1992) (holding that the “timing of the complaints, standing alone, d[id] not create a genuine issue as to a causal connection” when plaintiff “presents no evidence to suggest that [those] who complained of her deficient performance were lying or that their motives in making those complaints were improper“).3
Tomanovich also claims that the City retaliated against him by refusing to re-hire him and then by failing to provide INDOT with details concerning his
2. The Indirect Method
Alternatively, Tomanovich asserts that he presented sufficient evidence of retaliation under the indirect method. As noted above, to prove retaliation under the “indirect method, the plaintiff must establish a prima facie case of retaliation by showing that: (1)[ ]he engaged in a statutorily protected activity; (2)[ ]he met the employer‘s legitimate expectations; (3)[ ]he suffered an adverse employment action; and (4)[ ]he was treated less favorably than similarly situated employees who did not engage in statutorily protected activity.” Moser, 406 F.3d at 903.
The district court concluded that Tomanovich failed to establish a prima facie case of discrimination under the indirect method because he did not show that he was treated less favorably than others who had not engaged in statutorily protected activity. On appeal, the City argues that Tomanovich also failed to establish a prima facie case of retaliation because Tomanovich was not meeting the City‘s legitimate expectations. The evidence supports both conclusions. First, the City presented evidence that Tomanovich did not meet its legitimate expectations in several respects, including through his insubordinate conduct. For instance, the City points out that Tomanovich was insubordinate by refusing to stay for the entire meeting Salem held on June 3, 2002, to review his performance. Tomanovich does not claim otherwise. Tomanovich also admits that he refused to attend a November 4, 2002, meeting with Salem to review his performance. Tomanovich claims he decided it was best not to attend the meeting so as to avoid a confrontation. That, however, was not Tomanovich‘s decision to make, and his admission to the conduct at issue prevents him from establishing that he was meeting the City‘s legitimate expectations. See, e.g., Hague v. Thompson Distrib. Co., 436 F.3d 816, 824 (7th Cir.2006) (holding that the defendant is entitled to summary judgment because the рlaintiff admitted the conduct which the employer proffered as its reason for terminating the plaintiff).
To establish a prima facie case of retaliation, Tomanovich also needed to present evidence that a similarly situated employee who had not engaged in statutorily protected activity was treated more favorably. Moser, 406 F.3d at 903. On appeal, Tomanovich points to Mario Mazza, who worked for the City‘s DPW engi-
3. State Blacklisting Claim
Tomanovich also sued the City for blacklisting under
(a) A person who, after having discharged any employee from his service, prevents the discharged employee from obtaining employment with any other person commits a Class C infraction and is liable in penal damages to the discharged employee to be recovered by civil action; but this subsection does not prohibit a person from informing, in writing, any other person to whom the discharged employee has applied for employment a truthful statement of the reasons for the discharge.
(b) An employer that discloses information about a current or former employee is immune from civil liability for the disclosure and the consequences proxi-
mately caused by the disclosure, unless it is proven by a preponderance of the evidence that the information disclosed was known to be false at the time the disclosure was made.
The district court granted the City summary judgment on this supplemental state law claim, concluding that Tomanovich failed to present any admissible evidence that the City had provided INDOT with false information. On appeal, Tomanovich does not claim that the City provided INDOT with false information; instead he merely incorporates the arguments he made for reversal of his Title VII retaliation claim. However, without evidence that the City provided INDOT with false information, the City was entitled to summary judgment on Tomanovich‘s blacklisting claim.
B. INDOT
Tomanovich also sued INDOT for retaliation, claiming that INDOT refused to hire him in retaliation for filing EEOC charges against his former employer, the City. As with his claim against the City, Tomanovich аttempts to establish his retaliation claim against INDOT under both the direct and indirect methods.
1. Direct Method
Tomanovich argues that he presented sufficient evidence to avoid summary judgment on his retaliation claim under the direct method because he established a causal connection between his Title VII complaint and INDOT‘s refusal to hire him. As proof, Tomanovich points to the statements made by Lawrence (who worked for the City) that the City could not answer any of INDOT‘s questions beyond Tomanovich‘s dates of employment, due to pending litigation. Lawrence, however, never indicated that the pending litigation involved Title VII, and Title VII only prohibits retaliation for opposing a practice made unlawful under Title VII.
2. Indirect Method
Tomanovich also argues that he presented sufficient evidence under the indirect method. Again, to establish a prima facie case of retaliation under the indirect method, Tomanovich must show that he: (1) engaged in a statutorily protected activity; (2) met the employer‘s legitimate expectations; (3) suffered a materially adverse action; and (4) was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Moser, 406 F.3d at 903. However, proof of retaliation under the indirect method presupposes that the decision-maker knew that the plaintiff engaged in a
Moreover, even had Tomanovich presented evidence that INDOT knew of his EEOC complaint, he nonetheless failed to establish a prima facie сase. Specifically, Tomanovich did not establish that a similarly situated employee who did not engage in statutorily protected activity was treated more favorably. Tomanovich argues otherwise, pointing to a statement by INDOT‘s Legal Counsel, Kelly Whiteman, that she had never encountered problems gaining information from an applicant‘s previous employer. This evidence, however, does not show that INDOT treated Tomanovich differently than applicants who had not filed a charge of discrimination. Rather, this evidence shows that INDOT made several attempts to verify Tomanovich‘s employment record. Tomanovich also argues that Risch‘s testimony that, in thirty years of working for INDOT, he had never been required to withdraw an offer of employment, shows that he was treated less favorably than similarly situated employees. This testimony, however, does not establish that the other applicants were similarly situated. Moreover, in this case, INDOT presented evidence that it withdrew its offer to Tomanovich because it only learned after having made the offer that Tomanovich was a candidate for City Council and under Indiana law could not be hired as an engineer. Tomanovich did not identify any other applicant who was barred by Indiana law from holding a position, but was nonetheless hired. Tomanovich also failed to present evidence of other applicants who werе hired by INDOT even though INDOT could not confirm details of their prior employment. Therefore, Tomanovich did not show that INDOT treated a similarly situated applicant, who had not engaged in protected activity, more favorably.
Furthermore, even if Tomanovich had established a prima facie case, INDOT presented evidence of legitimate non-discriminatory reasons for withdrawing its job offer and not hiring Tomanovich. Specifically, INDOT presented evidence that it withdrew its employment offer only after learning that Tomanovich was a candidate for public office and barred by state law from working as an engineer. INDOT further presented evidence that after Tomanovich withdrew his candidacy for city council, it did not hire him because it was unable to confirm details about his job performance in his previous position. Tomanovich failed to present any evidence that these proffered reasons were pretextual. Accordingly, Tomanovich‘s retaliation claim against INDOT cannot succeed under the indirect method, and the district court properly granted INDOT summary judgment.
III.
Although the City fired Tomanovich after he had filed a complaint with the EEOC, Tomanovich failed to present sufficient evidence under the direct method of a causal connection between Tomanovich‘s protected activities and his firing, or the City‘s subsequent refusal to provide INDOT details on Tomanoviсh‘s work histo-