Marion Gordon was a clerk at FedEx's East Moline Center in October of 2008 when she fell and hurt her wrist. Both the facility and regional managers were aware of her injury soon after it occurred. According to Gordon, the facility manager expressed his view that she would be off work for a long time. The very next day, the two managers were told to eliminate one full-time position at the center. Other than Gordon, the only other two full-time employees were two supervisors, one of whom also supervised another center. The managers decided that they needed to keep both supervisors and agreed to illuminate Gordon's position. When Gordon returned after about a month off, she was terminated. Approximately one month after that, she filed a workers' compensation claim. Gordon brought suit against FedEx, alleging that it retaliated against her for exercising her workers' compensation rights. Judge McDade (C.D. Ill.) granted summary judgment to FedEx. Gordon appeals.

In their opinion, Seventh Circuit Judges Flaum and Kanne and District Judge Chang affirmed. In order to maintain an action for workers' compensation retaliation in Illinois, a plaintiff must prove a causal relationship between exercising a workers' compensation right and her discharge. Here, Gordon's claim filing could not be related to her discharge since it occurred weeks after the fact. But Illinois courts also recognize that merely seeking medical attention qualifies as exercising a workers' compensation right. The record is clear that both managers were aware they Gordon was seeking medical attention. The Court turned to the existence of a causal connection and noted that Gordon's strongest evidence of the connection was the short time period between her injury and FedEx's termination decision. The short time period is not enough, however, to sustain a claim. FedEx presented a legitimate, nondiscriminatory reason for its decision to eliminate Gordon's position. That is enough.

Katherine Puffer worked at Allstate Insurance Company for over 25 years. She was terminated in 2003 as part of a reduction in force. She filed a charge with the EEOC and later a complaint in federal court alleging gender discrimination and retaliation. Her complaint alleged three claims: a) a class claim that Allstate had a "policy or practice" of discriminating against a class of female managerial employees because of their gender, b) a class claim that Allstate paid a class of women lower wages for the same work as men, and c) individual claims of retaliation and Equal Pay Act violations. The first class claim was alleged under both "differential treatment" and "disparate impact" Title VII theories. Magistrate Judge Schenkier (N.D. Ill.) denied class certification. He focused almost exclusively on the differential treatment theory, relegating the disparate impact theory to a footnote. He found that the class failed to satisfy either the commonality or typicality requirement and also concluded that Puffer failed to show that certification was proper under Rule 23 (b)(2) or (b)(3). In doing so, he discounted plaintiff's expert's statistical analysis because it was contrary to the then-recently decided Ledbetter case. Puffer again sought certification after the President signed the Ledbetter Act. The memorandum focused exclusively on a "pattern-or-practice" claim even though she used the term "disparate impact" in her motion. Magistrate Judge Schenkier again denied her motion. Puffer settled her individual claims and several putative class members moved to intervene and appeal.

In their opinion, Seventh Circuit Judges Flaum and Tinder and District Judge Shadid affirmed. The Court noted that, in light of the Supreme Court's decision in Dukes, the plaintiffs did not appeal from the denial of certification for the pattern-or-practice count. They appeal only the Title VII disparate impact claim. The Court explained some differences. A disparate impact claim does not require proof of intentional discrimination. Rather, it focuses on facially neutral treatment that has a more burdensome impact on one group than other. A pattern-or-practice claim, on the other hand, is a claim based on intentional discrimination. Here, the Court concluded that the intervenors stand in the same shoes as the plaintiff and the plaintiff failed to present a disparate impact theory in the district court. The Court cited numerous instances where plaintiff focused her argument on a pattern-or-practice case and not a disparate impact case, including the fact that she did not cite any disparate impact cases in her class certification memorandum. The fact that she mentioned, on a few occasions, that she was alleging both is not enough to avoid waiver. Given that the intentional discrimination claim was the only one adequately argued and the only one decided by the court, it is the only one preserved for appeal – and it was not appealed. The disparate impact claim has been waived.

The United States Postal Service hired Craig Steffen as a part-time mail handler in 1987. He injured his back in 1998 and returned to "light-duty" work after taking a few weeks off. He reinjured his back in May of 2003. He worked one week in July but never returned after that. His supervisor unsuccessfully attempted to get him to return to work or document his injury. In fact, he threatened to fire Steffen in early 2005. The union filed a grievance on Steffen’s behalf and the parties entered into a settlement agreement. Under the agreement, Steffen was to return to full-duty work if he was cleared by his physician and passed a fit for duty exam. If he was not able to return to work, he was to apply for disability retirement. The USPS physician concluded that Steffen was not fit for full duty work. Steffen did not return to work, but he did not file for disability retirement either. The USPS fired him in early 2006. Steffen filed suit alleging disability discrimination under the Rehabilitation Act. He alleged that the USPS "regarded him as" disabled. Magistrate Judge Goodstein (E.D. Wis.) granted summary judgment to the USPS. She first concluded that the 2009 amendments to the Americans with Disabilities Act did not apply to the claim since Steffen was fired before they were passed. Using the pre-2009 standard, she concluded that the USPS did not think that his injury limited a major life activity. Although she also concluded that the USPS' requirement that Steffen return without limitations violated the Rehabilitation Act, she concluded that Steffen was not covered by the Act. Steffen appeals.

In their opinion, Seventh Circuit Judges Posner, Flaum, and Manion affirmed. The Court noted that Steffen, as a federal agency employee, brings his claim under the Rehabilitation Act but that the Court looked to the ADA to determine whether the Rehabilitation Act has been violated. The Court agreed with the district court that the 2009 amendments do not apply. First, Circuit authority holds that the amendments do not apply retroactively. Second, the Court rejected Steffen’s argument that, even if they do not apply, they should be viewed as persuasive authority in interpreting the pre-2009 standard. And third, the Court rejected his argument that the amendments should apply to his claim for future relief. The pre-2009 version of the statute controls since he complains of pre-2009 conduct. Under that version, the "regarded as" prong is met only if an employer believes that the employee is substantially limited in a major life activity. Prior to 2009, a major life activity was usually limited to the statutory list of "walking, seeing, hearing," etc. Steffen does not even identify which major life activity he thinks the USPS mistakenly believes is limited. In any event, he failed to prove that the USPS had such a mistaken belief. With respect to "substantially limited," the ADA defines it as unable to perform or significantly restricted. The Court rejected Steffen's argument that a single answer in a USPS representative’s deposition can establish his disability. The statement was merely that she considered him to be disabled. But having a "disability" means different things in the normal use of the word and in the ADA. Also, the representative may have an incorrect understanding of the ADA. And third, having a "disability" does not prove that Steffen suffered a substantial limitation in the major life activity. Finally, the same witness stated that she did not consider Steffen disabled under the ADA. His “regarded as disabled” claim cannot succeed. The Court turned to the argument that the USPS requirement that he return to work without any restrictions is a per se violation. Since Steffen has not established that he is disabled, he does not have standing to argue the per se violation.

Thomas Abner had a checkered history in his first 16 years with the Illinois Department of Transportation. He was the subject of several disciplinary measures, including a 30-day suspension for fighting in 2003. A "last chance agreement" he entered into at the time provided that any future, similar conduct would result in his termination. In July 2005, he was involved in a physical altercation with a coworker and supervisor. IDOT gave him notice that he was being terminated for violating its policies against violence in the workplace. After an administrative hearing, an ALJ concluded that Abner had engaged in the altercation and that he had violated IDOT rules, but recommended that he be suspended for 90 days instead of discharged. A state court overturned that decision and reinstated the discharge. Abner never claimed, either at the administrative hearing or in his briefs to the state court, that IDOT discharged him in retaliation for filing a charge of racial discrimination. Three years later, however, Abner filed a federal court complaint alleging retaliatory discharge. Judge Castillo (N.D. Ill.) dismissed the case on the grounds that the state court's holding that he was discharged for cause precluded Abner from litigating that issue in federal court. Abner appeals.

In their opinion, Seventh Circuit Judges Bauer, Rovner, and Williams affirmed. First, a state court judgment reviewing an administrative finding is entitled to the same preclusive effect as any other judgment rendered by a state court. Second, under Welch, workplace discrimination charges are barred by a state court finding that a discharge was supported by just clause. Illinois applies the rule that a prior judgment precludes the litigation not only of matters actually determined but also matters that could have been raised and determined. Abner could have raised retaliatory discharge as a defense in the administrative and state court proceedings. His failure to do so precludes his federal complaint.

Bagley is a small-town in southwestern Wisconsin on the banks of the Mississippi River. A huge storm in the summer of 2007 overwhelmed local drainage capacity. The runoff caused debris to collect under the Burlington Northern Railway bridge near the town. The debris blocked the runoff, which backed up and flooded most of the homes in Bagley. Some residents brought suit against the Railroad, alleging faulty design and maintenance. Judge Crabb (W.D. Wis.) dismissed the case, holding that a Wisconsin statute provided the exclusive remedy to the plaintiffs and required a timely notice of claim. Plaintiffs appeal.

In their opinion, Seventh Circuit Judges Bauer, Rovner, and Williams affirmed. The Wisconsin statute prohibits a railroad from impeding the flow of water -- and provides a remedy to an injured landholder if the railroad breaches that obligation. But it requires that the landowner file a claim in order to recover. The Court noted that the statute on its face as well as a Wisconsin appellate court decision confirms that it applies to the plaintiffs in this case. On appeal, plaintiffs argue that the statute does not apply to faulty maintenance and is concerned solely with faulty design or construction. The Court found two problems with that argument. One, plaintiffs do complain about faulty design and construction. Two, and more importantly, because plaintiffs never developed the argument below , they have forfeited it.

Leon Greenblatt and two business associates controlled Loop Corp. Greenblatt also controlled Banco Panamericano. In 2000, Banco gave Loop a $9.9 million line of credit in exchange for a lien on Loop’s assets. Also in 2000, Loop opened a trading account at Wachovia. Unfortunately, Loop's margin-trading activities in the Wachovia account were not very successful. By May 2001, the account was liquidated and Loop still owed Wachovia almost $2 million. Loop also defaulted on the Banco line of credit in 2001. Nevertheless, Banco extended and expanded the line of credit. Loop used the funds for many things, including investments in other companies, but never repaid Wachovia. Wachovia initiated arbitration against Loop and the individual businessman. When the individuals brought suit to enjoin the arbitration against them, Wachovia dropped them from the arbitration and filed counterclaims. Wachovia eventually obtained a judgment from the arbitration for almost $2.5 million. After a bench trial, Judge Kendall (N.D. Ill.) pierced Loop's corporate veil and held the individual defendants personally liable. The court also voided several of Loop's transfers. The individuals appeal.

In their opinion, Seventh Circuit Judges Manion, Tinder, and Hamilton affirmed for the most part and vacated in part. The Court first addressed the veil piercing issue. The Court noted that Illinois permits veil piercing only when the "separate personalities" of the individuals and the corporation no longer exist and where continuing to recognize the corporate existence would result in fraud or promote injustice. With respect to the first prong, the Court rattled off a laundry list of findings that showed that the defendants abused the corporate form, including inadequate capitalization, comingling funds, diverting assets, etc. With respect to the second prong, the Court noted that it requires something less than fraud. Here, continuing to recognize the corporate structure would allow the shareholders to stick Wachovia with the loss from their failed investment after they created the appearance of a company that was able to cover its losses. That is enough to satisfy the second prong. The Court turned to the individual fraudulent transfers. It noted that Wachovia had to prove intent to defraud by clear and convincing evidence. The Court concluded that the district court had sufficient evidence to infer fraudulent intent. It did conclude, however, the district court erred when it found one payment fraudulent that had not been charged in the complaint. Finally, with respect to attorney's fees, the Court found that the underlying contract provided for a fee award and the individuals did not overcome Wachovia’s showing of reasonableness.

Nicholas Rice was arrested for auto theft in March 2003 and taken to the Berrien County, Michigan Jail. He remained in custody until August, although most the time was spent in the Kalamazoo Psychiatric Hospital as a result of his schizophrenia. By the time he was released from the hospital, however, there was a warrant for his arrest stemming from an attempted bank robbery in Indiana. Rice was transferred to the Elkhart County Jail in September of 2003. The jail had a contract with Correctional Medical Services to provide healthcare services to jail inmates. CMS contracted with Oaklawn Psychiatric Center for psychiatric services. Over the course of the next 15 months, Rice a) was committed multiple times to a mental health facility on the petition of a CMS physician because of his behavior and was released on each occasion, b) exhibited inappropriate behavior, c) was pepper-sprayed and restrained after he struck a cellmate in the eye, d) generally did not cooperate with jail staff in keeping himself and his cell clean and taking his medication, e) was frequently showered or cleaned up my jail personnel, and f) was kept in administrative segregation for several months. In December of 2004, Rice died as a result of excessive consumption of water. His estate brought suit under Section 1983 against the jail, CMS, Oaklawn, and a number of individuals. The suit alleged inhumane conditions, excessive force, institutional indifference, deliberate indifference, and state law wrongful death claims. Judge Miller (N.D. Ind.) granted summary judgment to the defendants on the federal claims and dismissed the state claims. After the state claims were refiled under the court's diversity jurisdiction, Judge Lozano (N.D. Ind.) dismissed them on the grounds that Judge Miller's earlier findings precluded recovery. The estate appeals.

In their opinion, Seventh Circuit Judges Flaum, Rovner, and Evans (who, as a result of his death, took no part in the decision). The Court first addressed the conditions of confinement claim. The gist of that claim is that Rice lived in very unsanitary conditions, mostly of his own cause. He refused to bathe himself or attend to the most basic of hygiene necessities. Jail personnel intervened on occasion, sometimes even having to forcibly remove him from his cell to shower him. On other occasions, however, they turned their back on the unsanitary conditions. Under the due process clause, a pretrial detainee has a right to be kept under humane conditions. The test is whether the conditions deprive the prisoner of minimal necessities and whether jail officials were deliberately indifferent. The Court disagreed with the district court's conclusion that the estate could not recover on this claim because the conditions were created by Rice himself. It found that fact to be relevant but not dispositive of the claim and concluded that material disputes of fact required a trial. The Court also concluded that the "minimal necessities" inquiry also presented disputed questions of fact. The Court then: a) affirmed the district court's conclusion that the estate failed to carry its burden on the administrative segregation claim, b) affirmed the district court's conclusion that the excessive force claim based on the pepper spray and restraints failed because the force was not excessive, was applied in good faith, and caused no injury, and c) affirmed the district court's disposition of the failure to act claim since the record did not show that jail officials failed to respond to a substantial risk of injury. The Court next addressed the question of whether Rice's treating physician at Oaklawn was a state actor in his role as an employee of a facility contractually obligated to provide psychiatric services to inmates. The Court found it unnecessary to resolve the issue but expressed its doubts over the district court's conclusion that the position was not a state actor because there was a court-ordered commitment. On the "laundry list" of policy or custom claims, the Court agreed with the district court that the estate presented insufficient evidence of a policy or custom that caused any harm to Rice. On the deliberate indifference claims against the jail guards and supervisors, the Court concluded that the defendants, although possibly exhibiting a general recklessness with respect to the inmates' safety, were not subjectively aware of the risk that Rice would engage in the excessive water drinking. On the deliberate indifference claims relating to the CMS employees, the Court again noted the fact that Rice died as a result of a compulsion to drink large amounts of water, a risk that no one was aware of. On the deliberate indifference claims relating to the CMS physician, the Court concluded that it was a closer case but that the estate had, at best, made out a negligence case. Finally, the Court addressed the state law claims which had been dismissed on collateral estoppel grounds. The district court had concluded that foreseeability of an injury was an element of the wrongful death claim and that Judge Miller had concluded that the death as a result of compulsive water drinking was not foreseeable. The Court disagreed and reversed. Under federal common law, an issue will not be given preclusive effect unless it was actually and necessarily decided in the prior action. In the estate's federal claims, it was only necessary to show that the defendants disregarded a known risk, not a foreseeable one. Therefore, the ruling on the federal claims do not preclude the state law claims.

Flynn Hanners was a Master Sergeant with the Illinois State Police in early 2008 when he sent out on his State Police computer an e-mail account describing, in a supposedly humorous way, sixteen Barbie dolls. Each doll was a caricature of a woman from a distinct Springfield, Illinois neighborhood. The department began an investigation. Hanners admitted sending the e-mail and acknowledged that it was an improper use of his State Police account. All of the recipients were interviewed. No one was willing to file a complaint attesting to the fact that he had been offended. The investigation concluded that the e-mail contained derogatory references to several categories of people, presented demeaning stereotypes, and violated several State Police policies. Hanners turned down an offer that would have reduced his disciplinary suspension to 10 to 15 days and instead appeared before the Disciplinary Review Board. The Board recommended and the Director imposed a 30-day suspension. The State Police also considered the e-mail incident during Hanner's 2008 promotional rating exercise. His immediate supervisor, even considering the incident, scored him at 68. After pressure from several other officers in the chain of command, however, she lowered it to a 54. The evaluation was upheld through a chain-of-command challenge. Hannerss filed suit alleging that he was both suspended and graded unfairly on account of his race. Chief Judge McCuskey (C.D. Ill.) granted summary judgment to the defendants. Hanners appeals.

In their opinion, Seventh Circuit Judges Ripple and Rovner and District Judge Feinerman affirmed. The Court first addressed Hanners’ claims under the direct method of proof. In order to prevail with only circumstantial evidence under the direct method, a plaintiff must present the familiar "convincing mosaic" of circumstantial evidence that points to a discriminatory reason for the employer's challenged conduct. In other words, evidence from which a rational juror could infer that the employer's conduct was on account of the plaintiff's membership in a protected class. The Court concluded that Hanners' evidence did not accomplish that. Although he submitted a list of other State Police employees who had been disciplined, he failed to show that they were non-Caucasian or that they had engaged in similar misconduct. The record contains no evidence of even a single instance of discriminatory behavior on the part of the defendants. The fact that some defendants were upset by the e-mail's content does not amount to evidence of discriminatory animus. Hanners is correct that significant, unexplained deviations from human resources practices can be probative circumstantial evidence of discrimination. Although there were some deviations from standard practices here, they were minor and irrelevant to the charges against Hanners.

In 2002, DNA evidence exonerated Alejandro Dominguez from a crime for which he was convicted in 1990. He brought suit against the City of Waukegan in 2004, alleging both state and federal claims. Since Waukegan had insurance against these types of claims, it notified its carriers. However, it had different carriers in 1989 (the year of the arrest) and 2002 (the year of exoneration). Both carriers refused to defend, pointing the finger at each other. The district court dismissed his wrongful arrest claim as untimely since a wrongful arrest claim accrues on the date of the arrest. The wrongful conviction claims, which accrue upon exoneration, were tried to a jury. He received a verdict of approximately $9 million against an individual Waukegan police officer. American Safety, the 2002 carrier, eventually brought a declaratory judgment action against Waukegan, which then brought the other carrier into the suit. Judge Kendall (N.D. Ill.) concluded that American Safety’s policy did apply and that it had to indemnify Waukegan for the verdict as well as its legal fees in defending the action. The insurance companies appeal.

In their opinion, Seventh Circuit Chief Judge Easterbrook, Circuit Judge Bauer, and District Judge Shadid affirmed. The Court noted that the district court relied on McFatridge in reaching its conclusion. McFatridge held that the “occurrence” in malicious prosecution claim coverage is the exoneration since there is no claim until the plaintiff is exonerated. The Court, in that case, noted that an Illinois appellate court decision reached the same result and the Illinois Supreme Court has never spoken on the subject. The Court rejected the insurance companies’ argument that McFatridge was decided erroneously, while at the same time recognizing that it is the minority view. The Court added its view that the result was the right result for policy reasons. It also refused to certify the question to the Illinois Supreme Court. The Court turned to American Safety’s other challenges. First, it rejected the notion that American Safety’s duty to defend did not arise until the City paid its deductible. Next, it rejected the argument that the refusal to defend was not unreasonable because McFatridge had not yet been decided. The Illinois case had been on the books for years and American Safety could have filed a declaratory judgment action instead of simply refusing to defend. Finally, the Court rejected American Safety’s argument that the award of fees should be treated as damages rather than costs since the City had been dismissed as a party and was incurring them as part of its obligation to defend the officer. But the policy also covers the individual officer as well as the city so the fees are “costs” under Section 1988 and not damages.

Late in his freshman year at Southern Door County High School, Derek Hannemann was expelled for violating the school district’s weapons policy. He was conditionally reinstated the following school year so long as he engaged in no further gross misconduct. In May of his sophomore year, the school district decided to reinstate the permanent expulsion because of several additional instances of misconduct. Hannemann enrolled in a neighboring high school but continued to frequent Southern Door County’s weight room and grounds. After a confrontation with a teacher in the weight room the following May, the school district sent Hannemann a letter informing him that he was “no longer to enter upon the property of the Southern Door County School district for any purpose effective immediately.” Hannemann filed suit pursuant to § 1983, alleging that the ban violates his rights to procedural due process. Judge Griesbach (E.D. Wis.) entered summary judgment for the defendants. Hannemann appeals.

In their opinion, Seventh Circuit Judges Flaum and Rovner and District Judge Castillo affirmed. The Court considered whether the ban violated a liberty interest. The Supreme Court has recognized the “stigma plus” test for a liberty deprivation based on reputation. Under that test, there must be an injury resulting from defamation as well as “an alteration of legal status.” Although the Court determined that Hannemann waived the argument by not making it in the district court, it also concluded that the argument failed on the merits. Hannemann neither identified any defamatory statements made by the District nor established any alteration in his legal status. He alleges that he has been deprived of his right, as a member of the public, to have access to school property. But members of the public do not possess that constitutional right. Hannemann also argued that the ban interfered with his right to intrastate travel. Even if such a right exists, the Court concluded that the ban could not violate it. The ban has not limited his ability to move from place to place or to get from one location to another. The inability to access a particular public place is not an infringement of intrastate travel. Finally, the Court noted that Hannemann was correct in his challenge to the district court’s alternative basis of qualified immunity because qualified immunity does not bar declaratory or injunctive relief. Since he loses on the merits, however, the district court error is irrelevant. 

Falcon Holdings owned and operated over 100 Church’s Chicken restaurants. Aslam Khan was a 40% owner of Falcon — Sentinel Capitol Partners II and others owned the rest. A number of restaurant managers allege that they accepted lower salaries in return for Khan’s promise that he would own 100% of Falcon one day and that he would provide 50% of its equity to the store managers. Kahn became 100% owner in 2005 but provided no reward to his managers. In fact, he denies that he made the promise. Judge Guzman (N.D. Ill.) denied the claim of three of the managers on the grounds that they had not adequately estimated damages. The managers appeal.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Circuit Judge Bauer and District Judge Shadid vacated and remanded. The plaintiffs’ damages theory was simple—the price Khan paid Sentinel implied that Falcon was worth $48 million, half of which is $24 million. The $24 million, when divided among the 20 managers, equals $1.2 million apiece. The Court disagreed with the district court’s rejection of that theory. First, the district court said that the value of the whole could not be implied from the price paid for a part. But, what a willing buyer will pay is the “gold standard of evaluation,” said the Court. Khan does not assert that he overpaid Sentinel and, if he underpaid, the plaintiffs have underestimated their damages—that is no reason to dismiss the case. The second reason the district court rejected the damage estimate was that it depended on how much Khan could borrow. Again, the Court noted that the plaintiffs have only underestimated their damages if Khan’s ability to borrow artificially kept the price down. Notwithstanding its disagreement with the district court, the Court did identify its own concern with the damage estimate. The promise alleged by the plaintiffs is not that Khan promised them 50% of Falcon’s value, but that he promised 50% of its equity. Assuming that Khan borrowed significant amounts to finance his purchase of the outstanding ownership, 50% of the company’s equity does not equal 50% of its value. But the record is silent on the details of the transaction and the defendants had not asked the Court to affirm on that ground. The Court also pointed out that might be unreasonable to assume that Khan’s promise, even if made, meant that he was going to turn over the equity without any terms or conditions. The Court noted that that it would have serious tax and structural disadvantages. If, as is more likely, the promise (if proven) would have entailed other terms and conditions, the contract may be too indefinite to enforce. But again, defendants do not seek affirmance on those grounds. Finally, the Court rejected the defendants’ argument that the judgment should be affirmed because plaintiffs quantified their damages too late in the proceedings. Defendants asked for no relief in the district court on that issue and have shown no injury.

Susan King was employed as a business manager for Acosta Sales and Marketing, a food broker, for six years. When she quit, she brought suit against her former employer, alleging a hostile work environment for women in violation of Title VII and unequal pay for women in violation of Title VII and the Equal Pay Act. Judge Gettleman (N.D. Ill.) granted summary judgment to the employer on both counts. King appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Posner and Wood affirmed in part, reversed in part, and remanded. The Court first addressed the hostile work environment claim. The district court had addressed that claim in two parts: whether there were hostile working conditions in the 300 days immediately prior to the EEOC charge and whether acts prior to that date could be attributed to Acosta. That was error. Under Morgan, it does not matter when the individual acts of an ongoing employment practice occurred if the practice continues into the 300-day period. Notwithstanding the error, the Court concluded that a remand was not necessary. Almost all of the acts constituting the alleged hostile work environment were the result of one coworker who quit almost 2 years before the EEOC charge. Although there were a few episodes after that, the Court concluded that they were not severe or pervasive enough to sustain a hostile work environment charge. The Court turned to the unequal pay claim. It found significant differences between the pay for the male managers and for the female managers, both in terms of starting salary and raises. The district court erred in its approach to these claims. It had concluded that Acosta had satisfied its burden by articulating education and experience as explanations for the differences in pay and that King had not shown that that explanation was pretext. The Court first noted that this burden-shifting approach only applies under Title VII. Under the Equal Pay Act, the defense that the difference in pay is the result of a factor other than gender is an affirmative defense on which the defendant has both the burden of production and persuasion. Second, the Court concluded that the differences could not be explained by Acosta’s education and experience claim. Education and experience might account for differences in starting salaries but the males at Costa received substantially greater increases in pay after hire as well. A reasonable juror could conclude that the reason for the differences was indeed sex discrimination. Both the Title VII and the Equal Pay Act claim must be remanded for trial.

It was New Year’s Eve 2007 and Shannon McComas, an Indianapolis police officer, was attending a party at Durty Nelly’s Pub & Eatery. A fight broke out around 3:00 a.m. When the dust cleared, several persons were wounded and a security guard was killed. Detective Edward Brickley was one of the responding detectives. He interviewed several witnesses, recovered a gun, and viewed the bar’s surveillance video before he spoke with McComas. McComas made several statements that were inconsistent with the surveillance video and information that Brickley had obtained from other witnesses. When Brickley told McComas that he had seen the video and that McComas’ statement was inconsistent with it, McComas changed his story. Shortly thereafter, the police arrested McComas and charged him with murder and assisting a criminal. Charges of providing false information were later added. Eventually, the state dropped all charges. McComas brought an action against Brickley for false arrest pursuant to § 1983. Judge Barker (S.D. Ind.) denied Brickley’s motion for summary judgment on qualified immunity grounds. Brickley appeals.

In their opinion, Seventh Circuit Judges Bauer, Posner, and Wood reversed and remanded. The Court first addressed its jurisdiction since summary judgment denials are generally not appealable. One exception to that general rule allows appellate jurisdiction of a denial of qualified immunity—but only to the extent it involves issues of law. The Court noted that there were many factual disputes in the case but none of them were relevant to the qualified immunity question. The test for qualified immunity is whether the allegations amount to a constitutional violation when viewed in the light most favorable to plaintiff and whether the right at issue was clearly established at the time of the alleged violation. Here, the Court only addressed the “clearly established” prong. When looking at an allegation of wrongful arrest, the question is whether the officer had “arguable probable cause.” The Court found an absence of probable cause for the murder charge. However, since Brickley is entitled to qualified immunity if he had arguable probable cause for either charge, the Court turned to the assisting a criminal charge. Under Indiana law, one is guilty of assisting a criminal if one “harbors, conceals, or otherwise assists” another person. Given the evidence on the surveillance tapes and McComas’ original lies about his involvement in the fracas, the Court concluded that Brickley had arguable probable cause for the assisting a criminal charge. The Court added that Brickley had probable cause to arrest McComas with the false informing charge, even though that charge was not brought until later. An arrest is reasonable if there is probable cause to believe any crime has been or is being committed, even if it is not included in the original charge. In Indiana, one commits the crime of false informing if he gives false information in the investigation of a crime. Clearly, McComas had probable cause to believe that Brickley had done that.

After fifteen years as a teller, the Lafayette Bank promoted Julie Smith to branch manager in 1995. The Bank began receiving complaints from both customers and employees about Smith’s negative attitude and behavior in 2004 and 2005. Her performance reviews reflected her poor performance and noted that she needed to improve. In mid-2006, in order to avoid termination, Smith wrote a commitment letter promising to improve. Within weeks of writing the letter, the Bank received more complaints about her behavior and terminated her employment. Several months later, she filed a charge with the EEOC alleging a violation of the Age Discrimination in Employment Act. She later brought suit against the Bank pursuant to the ADEA alleging retaliation. Judge DeGuilio (N.D. Ind.) granted summary judgment to the Bank. Smith appeals.

In their opinion, Seventh Circuit Judges Rovner and Williams and District Judge Young affirmed. Smith proceeded under both the direct and indirect methods of proof. The Court noted that both methods require proof that Smith engaged in protected activity. That means that she had to complain about age-based discrimination. The only complaints she cites as protected activity involved general complaints about her pension plan calculation, cutbacks at the branch office, and issues with her 401(k) contributions. None of the activity cited by Smith involved objections to discrimination based on age. Therefore, they are not protected activity and cannot form the basis for a retaliation claim. Although her EEOC charge is protected activity, she did not file her charge until months after her termination. The Bank obviously could not have known about it at the time they fired her.

In 2004, the University of Chicago Medical Center employed Barbara Good, a Caucasian woman, as a lead technologist in its Radiology Department. Good’s mid-2007 performance review was poor. Pursuant to the Center’s policy, Good’s supervisors (both Caucasian) prepared a performance improvement plan. At the time, Good offered to accept a demotion to a staff technologist position. Her performance did not improve sufficiently over the next 90 days. She repeated her offer to accept a demotion but one of her supervisors told her (incorrectly) that the Center had changed its policy. The Center terminated Good’s employment in late 2007. Good brought suit pursuant to Title VII, alleging that the Center discriminated against her on account of her race. Judge Guzman (N.D. Ill.) granted summary judgment to the Center. Good appeals.

In their opinion, Seventh Circuit Judges Kanne, Sykes, and Hamilton affirmed. Good proceeded under both the direct and indirect methods of proof. Under the direct method, Good relied solely on circumstantial evidence. Circumstantial evidence is enough to survive summary judgment, but only if the evidence points to a discriminatory reason for the termination. Here, although Good identified three similarly situated individuals who had been allowed to accept a demotion and avoid termination, the record contains no evidence that the decisions were based on race. The same is true with her supervisor’s incorrect explanation about the demotion policy. Even if she was attempting to mislead Good, there is no evidence that it was based on race. Good cannot prevail under the direct method. The indirect method for a reverse race discrimination case requires, among other things, “’background circumstances’ that demonstrate that a particular employer has ‘reason or inclination to discriminate invidiously against whites’ or evidence that ‘there is something “fishy” about the facts at hand.’” the record contains no evidence that the Center has a racial bias. Good cannot prevail under the indirect method.

Crestwood, Illinois, a suburb outside of Chicago, uses both Lake Michigan and its own wells as sources for the water it supplies to its residents. A number of residents brought suit in state court against Crestwood and various past and current officials, alleging that it continued to provide well water to village residents after learning that it was contaminated with perchlorethylene, a common dry cleaning solvent. The residents seek damages for their health injuries. The State of Illinois also brought suit against Crestwood seeking a site inspection and remediation. Two of the Village’s insurers brought suit for a declaratory judgment that they had no duty to defend or indemnify because of their policies’ pollution exclusions. Judge Kendall (N.D. Ill.) granted summary judgment to the insurers. The plaintiffs appeal.

In their opinion, Seventh Circuit Judges Posner, Wood, and Hamilton affirmed. The pollution exclusions exclude from coverage certain injuries arising out of the release of pollutants. The Court easily concluded that a literal reading of the policies would exclude coverage for the alleged harms. But it also concluded that a literal reading would exclude other harms that should not be excluded – harms that would not be characterized as pollution incidents. The Illinois Supreme Court has limited the pollution exclusion to “traditional environmental pollution.” Instead of a literal reading, the Court looked to the reasons for the exclusion, insurance’s affect on behavior, and the exclusion’s history to determine where to draw the line between coverage and non-coverage. Typical tort cases that might incidentally involve contaminants (e.g., a traffic accident resulting from spilled contaminants that would have similarly occurred had the spill involved non-contaminants) fall outside the exclusion. The Crestwood case, on the other hand, is a case about groundwater contamination. Groundwater contamination litigation is one of the concerns that gave rise to the pollution exclusion. The facts that the Village defendants did not originate the contaminant and that the perchlorethylene level was below environmental regulatory standards are irrelevant.