Hunt, James v. City of Markham

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1331
James Hunt, et al.,
Plaintiffs-Appellants,
v.
City of Markham, Illinois,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 5620--Charles P. Kocoras, Judge.
Argued April 6, 2000--Decided July 11, 2000
Before Posner, Chief Judge, and Flaum and Ripple,
Circuit Judges.
Posner, Chief Judge. Four white police officers
sued the City of Markham, a Chicago suburb,
charging racial and age discrimination in
violation of 42 U.S.C. sec. 1981 and the Age
Discrimination in Employment Act, respectively,
and they now appeal from the grant of summary
judgment for the defendant and the resulting
dismissal of their suit. Unlike most "reverse
discrimination" suits, this one does not arise
out of efforts to redress historic injustices or
mitigate racial tensions; it charges naked
discrimination by a municipal government that is
controlled by blacks, who are a majority of the
local population. The mayor is black, as is a
majority of the city council, over which he
presides, and as are all the members of the board
of fire and police commissioners, whom he
appoints.
Construed as favorably to the plaintiffs as the
record permits, which is the proper standard when
evaluating the grant of summary judgment in favor
of the defendant, the facts are as follows.
During a period stretching from 1993 to sometime
after this suit was filed in 1997, the mayor and
other black officials made repeated racist and
"ageist" comments to or about the plaintiffs,
such as that the city needed "to get rid of all
the old white police officers" and--to one of the
plaintiffs--"when are you going to quit so we can
bring these young black men up?"; "it is the
blacks’ turn to self-govern in Markham, and if
you are white, get out"; "it is our turn; you are
the minority now; you lost, you might as well
move out; we don’t owe you nothing." Once when
the mayor said at a city council meeting, "they
are not worth anything" (referring to the three
plaintiffs, all but Barron, who hold supervisory
positions in the police department), one council
member asked him, "Are you saying this because
they are white, Mr. Mayor?" He replied, "Maybe I
am." There were a number of such comments, and
the defendant’s argument that only the four
comments listed in the complaint, before pretrial
discovery brought others to light, could be
considered in deciding whether to grant summary
judgment is frivolous. The defendant does not
argue, however--which would also be frivolous--
that the City of Markham is not legally
responsible for the discriminatory actions of the
mayor, city council, and board of fire and police
commissioners; for they are the city government.
See, e.g., McMillian v. Monroe County, 520 U.S.
781, 784-85 (1997); Pembaur v. City of
Cincinnati, 475 U.S. 469, 480-84 (1986); West v.
Waymire, 114 F.3d 646, 652 (7th Cir. 1997); Dill
v. City of Edmond, 155 F.3d 1193, 1210-11 (10th
Cir. 1998).
Hunt and Clayton presented evidence that they
were denied raises in 1996 and 1997 on account of
their race and age; Barron that he was denied a
temporary promotion to sergeant for similar
reasons; and Gordon that he was constructively
discharged when he quit after being told by the
chief of police that he would never perform up to
the mayor’s expectations. The district court
rejected Hunt and Clayton’s claim on two grounds:
that none of the derogatory comments was
contemporaneous with the action of the city
council in denying Hunt and Clayton raises or was
shown to have influenced the council’s action,
and that the two were denied raises because of
the city’s parlous financial situation, as were
all other nonunion employees of the city. The
defendant adds a third ground--that the denial of
a raise is not an adverse employment action for
which relief can be granted in a federal suit.
The district court overread language in a number
of our cases to the effect that "stray remarks"
of a derogatory character are not evidence of
actionable discrimination. E.g., Cullen v. Olin
Corp., 195 F.3d 317, 323 (7th Cir. 1999); Cianci
v. Pettibone Corp., 152 F.3d 723, 727 (7th Cir.
1998); Bahl v. Royal Indemnity Co., 115 F.3d
1283, 1293 (7th Cir. 1997); Rush v. McDonald’s
Corp., 966 F.2d 1104, 1116 (7th Cir. 1992). All
that these cases hold--all that they could hold
and still make any sense--is that the fact that
someone who is not involved in the employment
decision of which the plaintiff complains
expressed discriminatory feelings is not evidence
that the decision had a discriminatory
motivation. That is simple common sense. It is
different when the decision makers themselves, or
those who provide input into the decision,
express such feelings (1) around the time of, and
(2) in reference to, the adverse employment
action complained of. E.g., Bellaver v. Quanex
Corp., 200 F.3d 485, 493 (7th Cir. 2000); Pitasi
v. Gartner Group, Inc., 184 F.3d 709, 714-15 (7th
Cir. 1999); Bahl v. Royal Indemnity Co., supra,
115 F.3d at 1293; Cheek v. Peabody Coal Co., 97
F.3d 200, 203 (7th Cir. 1996); Stone v. Autoliv
ASP, Inc., 210 F.3d 1132, 1140 (10th Cir. 2000);
Vance v. Union Planters Corp., 209 F.3d 438, 442
(5th Cir. 2000). For then it may be possible to
infer that the decision makers were influenced by
those feelings in making their decision. This is
such a case. Although the mayor does not vote at
meetings of the city council, he recommends
actions to them, including the denial of the
raises sought by these two plaintiffs. Emanating
from a source that influenced the personnel
action (or nonaction) of which these plaintiffs
complain, the derogatory comments became evidence
of discrimination, as in such cases as Wichmann
v. Board of Trustees, 180 F.3d 791, 801-02 (7th
Cir. 1999) (per curiam), remanded for
reconsideration on other grounds, 120 S. Ct. 929
(2000), and Sheehan v. Donlen Corp., 173 F.3d
1039, 1044 (7th Cir. 1999).
There was also, it is true, evidence that the
city could not afford raises not required by its
union contracts; and Hunt and Clayton (also
Gordon), being supervisors, were not covered by
such a contract. Yet they did receive a raise in
1998--after this suit was filed--even though the
city’s financial situation had not improved. And
they presented evidence that some black
supervisors received not only raises, but also
tuition reimbursements and free use of city cars,
which they did not, during the years in which
they were denied raises.
The evidence that we have summarized created a
triable issue of whether, but for the plaintiffs’
race, they would have received raises or perks,
or both, in 1996 and 1997. But this brings into
view the third ground for the grant of summary
judgment against Hunt and Clayton--that the
denial of a raise (and we suppose a fortiori the
denial of perks) is not an "adverse employment
action." This term is found in innumerable cases
interpreting the federal employment
discrimination statutes, such as the Age
Discrimination in Employment Act, 29 U.S.C.
sec.sec. 621 et seq., the Americans with
Disabilities Act, 42 U.S.C. sec.sec. 12101 et
seq., and Title VII of the Civil Rights Act of
1964, 42 U.S.C. sec.sec. 2000e et seq. See, e.g.,
Conley v. Village of Bedford Park, No. 99-2659,
2000 WL 703806, *4 (7th Cir. May 31, 2000);
Tarshis v. Riese Organization, 211 F.3d 30, 35
(2d Cir. 2000); Spears v. Missouri Dept. of
Corrections & Human Resources, 210 F.3d 850, 853
(8th Cir. 2000) (distinguishing between
"tangible" and "minor" changes in working
conditions). But the plaintiffs’ suit, so far as
it alleges racial rather than age discrimination,
is bottomed instead on 42 U.S.C. sec. 1981, a
Reconstruction-era statute that forbids
contractual discrimination in general rather than
employment discrimination in particular. We
attach no weight to this point, however, because
the plaintiffs have failed to argue that there is
any relevant difference between section 1981 and
the ADEA (the two statutes on which their suit is
based), and because the cases, since the
amendment to section 1981 that superseded
Patterson v. McLean Credit Union, 491 U.S. 164
(1989); see Harrington v. Harris, 118 F.3d 359,
367 n. 8 (5th Cir. 1997), treat the statutes as
completely interchangeable. E.g., Johnson v. City
of Fort Wayne, 91 F.3d 922, 940 (7th Cir. 1996);
Johnson v. University of Cincinnati, No. 98-3016,
2000 WL 726528, *7 and n. 5 (6th Cir. Jun. 1,
2000); Hughes v. Ortho Pharmaceutical Corp., 177
F.3d 701, 704 (8th Cir. 1999); Stewart v.
Rutgers, The State University, 120 F.3d 426, 432
(3d Cir. 1997); Harrington v. Harris, supra, 118
F.3d at 366-68.
The idea behind requiring proof of an adverse
employment action is simply that a statute which
forbids employment discrimination is not intended
to reach every bigoted act or gesture that a
worker might encounter in the workplace. E.g.,
Faragher v. City of Boca Raton, 524 U.S. 775,
787-88 (1998); Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, 81 (1998); Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
Savino v. C.P. Hall Co., 199 F.3d 925, 933 (7th
Cir. 1999); Williams v. Bristol-Myers Squibb Co.,
85 F.3d 270, 274 (7th Cir. 1996). The language of
the statutes is consistent with such an
understanding. They forbid discrimination in
wages, benefits, working conditions, and other
terms and conditions of employment. E.g., Title
VII, 42 U.S.C. sec. 2000e-2(a)(2); Age
Discrimination in Employment Act, 29 U.S.C. sec.
623(a)(1); Americans with Disabilities Act, 42
U.S.C. sec. 12112(a); 42 U.S.C. sec. 1981(b) as
amended by the Civil Rights Act of 1991. Hence
the cases that hold that workplace sexual
harassment is not actionable unless the
harassment is so severe that it can be said to
have altered the plaintiff’s working conditions.
E.g., Faragher v. City of Boca Raton, supra, 524
U.S. at 786; Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742, 752 (1998); Harris v.
Forklift Systems, Inc., supra, 510 U.S. at 21;
Silk v. City of Chicago, 194 F.3d 788, 804 (7th
Cir. 1999).
The defendant’s best case on the meaning of
adverse employment action is Miller v. American
Family Mutual Ins. Co., 203 F.3d 997, 1006 (7th
Cir. 2000), which held that the denial of a bonus
was not such an action within the meaning of
Title VII. See also Rabinovitz v. Pena, 89 F.3d
482, 488-89 (7th Cir. 1996); Harrington v.
Harris, supra, 118 F.3d at 366. Since a bonus is
like a raise, the defendant asks us to rule that
the denial of a raise cannot be an adverse
employment action either. But there is a
difference between a bonus and a raise. Bonuses
generally are sporadic, irregular, unpredictable,
and wholly discretionary on the part of the
employer. Raises are the norm for workers who
perform satisfactorily. When there is inflation,
raises are necessary to keep the worker’s wages
from falling in real terms. The rate of inflation
in the United States is no longer high, but it is
positive, so that denying a raise to an employee
means cutting his wage in real terms. And raises
are the norm quite apart from inflation. They
reward the increased productivity that comes with
experience on the job, satisfy expectations for a
rising standard of living, and combat the "last
period" problem (the incentive for a worker to
slack off as he approaches retirement) by making
it costly to the worker to be fired (because he
will lose a wage made generous by steady raises).
A bonus, too, is an incident of the employment
relation, rather than something unrelated to it,
something only adventitiously connected with the
workplace. But the denial of a bonus is
inherently ambiguous, as well as less damaging to
the employee because he didn’t count (or at least
should not have counted) on it. Problems of proof
and the principle de minimis non curat lex
combine to place such denials beyond the reach of
the employment discrimination statutes, or so at
least our cases hold. The denial of a raise is
more likely to reflect invidious motivation than
the denial of a bonus, after alternative
explanations based on the worker’s performance or
the employer’s financial situation are excluded--
and there is evidence here, as we have seen, that
may exclude them. We conclude that the "bonus"
rule of Miller does not extend to raises. See
also Gupta v. Florida Bd. of Regents, No. 98-
5392, 2000 WL 633024, *14 (11th Cir. May 17,
2000); Gumbhir v. Curators of University of
Missouri, 157 F.3d 1141, 1144 (8th Cir. 1998).
As for plaintiff Barron, the defendant points
out that he flunked the test for sergeant the
only three times that he took it. This would be
dispositive if he were seeking a permanent
promotion to sergeant, but he is not; he is
seeking a temporary promotion, with the raise
that would come automatically with it. The denial
of a promotion is an adverse employment action,
see, e.g., Burlington Industries, Inc. v.
Ellerth, supra, 524 U.S. at 761; Ribando v.
United Airlines, Inc., 200 F.3d 507, 511 (7th
Cir. 1999); Wallace v. SMC Pneumatics, Inc., 103
F.3d 1394, 1397 (7th Cir. 1997); Allen v.
Michigan Dept. of Corrections, 165 F.3d 405, 410
(6th Cir. 1999), and the defendant does not argue
that the denial of a temporary promotion is like
denying a bonus. It is not. Some of the temporary
promotions to sergeant made by the City of
Markham have lasted as long as five years.
A temporary promotion does not require passing
the sergeant’s test--or anything else. The city
gave such a promotion to a black patrolman after
he was released from prison for having, while a
police officer, violated the civil rights of a
resident of Markham. It is a triable issue
whether Barron’s "offense" of failing the
sergeant’s test three times was worse, and if it
is not, an inference of racial discrimination
from the derogatory comments that litter the
record would not be unreasonable.
That leaves only the question whether Gordon was
constructively discharged. The term "constructive
discharge" refers to the situation in which an
employer, without firing an employee, makes his
working conditions so miserable that it drives
him to quit. See, e.g., Tutman v. WBBM-TV,
Inc./CBS, Inc., 209 F.3d 1044, 1050 (7th Cir.
2000); Simpson v. Borg-Warner Automotive, Inc.,
196 F.3d 873, 877 (7th Cir. 1999); Spears v.
Missouri Dept. of Corrections & Human Resources,
supra, 210 F.3d at 854. The defendant argues that
since Gordon was treated no worse than Hunt and
Clayton, and they haven’t resigned, the
conditions couldn’t have been that bad for
Gordon. That is a non sequitur. Just as a person
who is totally disabled in a medical and legal
sense may nevertheless work, out of desperation,
Jones v. Shalala, 21 F.3d 191, 192-93 (7th Cir.
1994), so a person may out of desperation or
simple stubbornness cling to his job despite
provocations that would cause the average person
to quit in disgust. A person who is told
repeatedly that he is not wanted, has no future,
and can’t count on ever getting another raise
would not be acting unreasonably if he decided
that to remain with this employer would
necessarily be inconsistent with even a minimal
sense of self-respect, and therefore intolerable.
We are mindful of Smith v. Bath Iron Works Corp.,
943 F.2d 164, 167 (1st Cir. 1991), which suggests
without quite holding that no claim of
constructive discharge can be lodged if the
employee did not actually quit, but it does not
appear to have been argued there that
extraordinary circumstances may have held the
employee (in this case Hunt and Clayton) to his
job who otherwise would have been reasonable in
quitting.
Reversed.