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Employee Rights and Employment Policy Journal


Volume 1 1997 Number 1

EMPLOYMENT DISCRIMINATION CASES IN THE SEVENTH CIRCUIT

BY
PAUL W. MOLLICA*

[P.63] Judge Richard A. Posner, chief judge of the U. S. Court of Ap-peals of the Seventh Circuit, laments the lack of scholarship into his own branch of the judiciary, the intermediate federal appellate courts. In his 1996 edition of The Federal Courts, Judge Posner remarks that "although those courts publish roughly 100 times as many opinions as the Supreme Court, and although court of appeals judges are more responsive to professional criticism than the lofty eminences of the Supreme Court, the law reviews devote more commentary to Supreme Court decisions than to court of appeals decisions." 1 This imbalance in publication may be irrational, but it is entirely under-standable. There is, foremost, the inherent political interest of cover-ing the nation's most powerful court. And the Supreme Court's glittering docket is more alluring than the mundane mass of circuit court decisions -- the difference between a high couture salon and the bargain racks at Loehmann's. There is also this plus to the analytic scholar: it is more manageable to study and write about the few opin-ions decided by a single collegial body than it is to draw meaningful conclusions from thousands of decisions made by over 150 circuit judges sitting randomly in threes.

But if one wants to study where the law is really made, Judge Posner rightly points to the federal courts of appeals. The orthodox role of appellate courts is to correct trial court errors and to declare [P.64] the law. 2 At the same time, the courts of appeals are powerful, nearly autonomous institutions. They are not bound by each other's prece-dent, except through a weak tradition of deference. 3 Each circuit es-sentially develops its own case law and its own approach to issues not yet reviewed by the Supreme Court. The circuit's opinions telegraph the arguments and cases that will win or lose in that court.

The circuits have, at least in the recent past, enjoyed a clear field to make their own law in the area of employment discrimination. With the decline in the Supreme Court's docket over the last several terms, there has been a precipitous drop in grants of certiorari in cases involving the federal employment discrimination statutes. The high watermark was the famous 1988 term when six such cases were de-cided, 4 which catalyzed Congress into passing the Civil Rights Act of 1991. 5 Perhaps the experience of witnessing a wholesale nullification of its decisions made the justices more quiescent. We are now down to just one or two cases a term, usually granted to clean up circuit con-flicts, seldom of earth-shattering consequence. 6 More than ever, our [P.65] courts of appeals are called upon to enforce, refine and improvise upon this area of the law without Supreme Court guidance (or interference).

This article analyzes the efforts of the U. S. Court of Appeals of the Seventh Circuit to decide appeals in the employment discrimina-tion area, through a study of 267 of its published opinions during the period 1992-1996. The cases are listed in the appendix to this Article. No attempt will be made to discuss, let alone harmonize, all of these decisions; no "Key to All Mythologies" is this. 7 The aim, rather, is to identify and articulate a few of the salient institutional traits of the court: patterns and motifs that recur with some consistency through-out the circuit's case law. Section I presents the dataset and method-ology used for this study and tabulates the appeal outcomes. The tables show that the reversal rate of published opinions for both plain-tiffs and defendants is about 22-23% overall. This equivalency sug-gests Ī at least statistically Ī an absence of systematic bias against plaintiffs. The voting histories of the individual Seventh Circuit judges are also tabulated.

Section II discusses two tendencies of the Seventh Circuit that emerge from a reading of its many employment discrimination opin-ions. Section II. A leads with a discussion of the Seventh Circuit's published summary judgment cases. The numbers reveal that sum-mary judgment appeals currently dominate the court's employment docket, totaling 149 published decisions over the study period -- more than half of the reported cases. As it turns out, too, the reversal rate for these published appeals is very close to the 22-23% average for all employment cases. We conclude, with some reservations noted below, that the Seventh Circuit reviewed the summary judgment appeals even-handedly. The second tendency noted (in II. B) is the court's aversion to bright-line legal rules. The Seventh Circuit, unlike some of its sister circuits, has often resisted such questionable innovations as "pretext-plus," "after-acquired evidence" and other extra-statutory [P.66] defenses used to suffocate otherwise meritorious cases. The article closes with suggestions for future research.

I. A STATISTICAL PROFILE OF THE SEVENTH CIRCUIT'S CASE LAW

A. DATASET OF CASES SURVEYED

This study used as its dataset the 267 opinions involving employ-ment discrimination officially published by the Seventh Circuit from January 1, 1992 to December 31, 1996. 8 By "employment discrimina-tion," this study refers to employment-related cases decided under the chief federal anti-discrimination statutes creating private rights of ac-tion: Title VII of the Civil Rights Act of 1964, 9 the Age Discrimina-tion in Employment Act (ADEA), 10 the Equal Pay Act, 11 the Rehabilitation Act, 12 the Americans With Disabilities Act (ADA), 13 and sections 1981 and 1983 of Title 42. 14 Also included are all cases involving the EEOC as a party, even if strictly speaking the cases did not arise under these statutes. 15

Some cases falling within this dataset are deliberately omitted. The study excludes, for instance, cases concerning workplace discrimi-nation solely on the basis of political affiliation or the exercise of First Amendment rights, for which the Supreme Court has set out an en-tirely different mode of analysis. 16 Vacated and overruled opinions are also omitted. 17 Excluded as well are the cases where the underly-ing cause of action was employment discrimination, but the appeal [P.67] dealt entirely with a collateral issue such as appellate or subject matter jurisdiction. 18

The dataset definition omits other categories of potentially rele-vant caselaw. One significant omission is unpublished opinions. Sev-enth Circuit Rule 53( c)( 1) provides criteria for publication, which for the most part focus on whether the case presents sufficiently close legal or factual issues to be useful precedent to others. 19 Opinions in cases not meeting these criteria are consigned to unpublished limbo under Circuit Rule 53( c)( 2). Westlaw's on-line service counts 167 un-published decisions in the Seventh Circuit during the study period that involved employment discrimination, 20 while conceivably others exist that were never reported to West. In the course of this study, these opinions were examined briefly to determine whether they should be included in the dataset. The opinions are, for the most part, terse ex-planations of the holding (nearly always affirming the district court). 21 A number of these recite episodes of inattention or worse by parties [P.68] or their counsel. 22 Some just affirm on the basis of the district court's opinion. Common to these decisions is that (a) virtually all of the appeals were taken by plaintiffs, and (b) the opinions indicate little or no probability of success.

Except for one instance below (at note 31), the study omits the unpublished decisions from the dataset. First, these opinions tell us little about how the judges of the Seventh Circuit go about deciding cases: their analyses are too slight, the job of drafting the opinions is often entrusted to staff attorneys, and the judges' attention to these decisions is necessarily more limited. Second, to include the unpub-lished decisions would unduly skew the statistics. The reversal rate for plaintiffs would surely plummet (by as much as half) if these cases were counted, but then the only important variable driving the num-bers would be the number of very weak appeals unfortunately taken by plaintiffs and their counsel. 23

Finally, certain areas of employment law were excluded from the study. No ERISA 24 cases were included, which -- while very impor-tant in their own right -- do not share the focus on historically disfa-vored groups of the statutes listed above. For the same reason, the study also excludes state law diversity claims in employment settings, such as breach of contract, infliction of mental distress, or public pol-icy torts. ERISA and state law claims that were joined with federal anti-discrimination claims were, nonetheless, retained in the dataset.

After the dataset was established, the cases were catalogued and categorized by prevailing party (plaintiff or defendant), action by [P.69]ap-pellate court (reversal or affirmance), nature of the district court or-der appealed (dismissal for failure to state a claim, summary judgment, etc.), panel composition, and authors of the panel and sepa-rate opinions. 25 Some judgment calls had to be made under these cat-egories. For instance, the study tallies partial wins in favor of plaintiff, rather than dividing the decision in fractions and allocating some of the victory to both sides. One reason for this approach is the near impossibility, on the opinion alone, of evaluating the percentage of an appeal that should be allocated to each party. And often enough, the value to a plaintiff of a partial win is equal or nearly equal to winning the entire appeal. One such case was Sarsha v. Sears, Roebuck & Co., 26 where the plaintiff appealed summary judgment on his claim of discriminatory termination on the basis of sex and age. The Seventh Circuit affirmed summary judgment on the sex discrimination claim, but reversed the age discrimination claim and remanded it for trial. Both theories entitled the plaintiff to essentially the same relief (the case fell prior to the 1991 amendments to Title VII that allowed for compensatory and punitive damages), so this was a situation where half a loaf was equal to one. 27

Another judgment call came in cases where the parties appealed multiple orders or judgments (for instance, summary judgment and a judgment following a trial); in such instances, the case was slotted under the last order entered. Finally, there was the issue of what to do about so-called "reverse discrimination" cases, those involving white plaintiffs alleging race discrimination. The ordinary political alle-giances in these cases are reversed, with plaintiffs attacking prefer-ences for minority employees and candidates. Nevertheless, to remain consistent, this study tallies white plaintiffs as plaintiffs. 28 [P.70]

B. STATISTICAL REVIEW OF OUTCOMES IN SEVENTH CIRCUIT CASES

Table 1 tallies the raw wins and losses in employment discrimina-tion appeals in the Seventh Circuit based on the published opinions. At first glance, the box score appears to be a rout for the defendant employers: 178 wins to 89 for plaintiffs. But first impressions deceive. Plaintiffs brought 217 of the appeals published by the court (the sum of the "plaintiff wins, reversing" and the "defendant wins, affirming" statistics), or 81.27% of all of published appeals during this period. With an historic reversal rate for civil appeals in the mid-20 percent range, 29 one would expect plaintiffs-appellants to suffer most of the losses. The real story, though, is in the reversal rates. It is here that plaintiffs run neck-and-neck with defendants. Plaintiffs obtained 50 reversals out of 217 total published appeals brought by plaintiffs, a reversal rate of 23.04% for all appeals. Defendant employers, which took fewer appeals, garnered 11 wins out of 50 appeals that they took, a 22.00% reversal rate. A comparison of the parties' respective rever-sal rates is instructive, revealing that neither plaintiffs nor defendants enjoy a decisive advantage in the total outcomes. 30 [P.71]

TABLE 1: RESULTS OF 267 SEVENTH CIRCUIT EMPLOYMENT DISCRIMINATION DECISIONS (1992-96)


Plaintiff wins Defendant wins

Affirming District Court 39 167
Reversing District Court 50 11

TABLE 2: RESULTS OF EMPLOYMENT DISCRIMINATION APPEALS, BY STAGE OF LITIGATION


TOTAL Plaintiff wins, discrict court affirmed Plaintiff wins, district court reversed Defendant wins, district court affirmed Defendant wins, district court reversed
Dismissal 25 0 9 16 0
Miscellaneous Pretrial 7 1 0 4 2
Summary Judgment 149 2 32 115 0
All trials 67 31 1 27 8
Bench trials 30 10 1 19 0
Jury trials 37 21 0 8 8
Post-trial motion 7 0 4 3 0
Post-judgment motion (includes attorney fees) 12 5 4 2 1

A more varied picture develops when the appeals are broken down by the stage of litigation in the district court (Table 2). In the trial category, among published appeals alone, 31 defendants' appeals are more common than plaintiffs' appeals (39 for defendants, 28 for plaintiffs). 32 In the published appeals, defendants were able to get eight jury verdicts reversed in five years, four for insufficiency of the [P.72] evidence 33 and four on other grounds. 34 This rate of appeals by de-fendants after trial should scarcely come as a surprise, because they do not enjoy a right to interlocutory appeals from erroneous district court pretrial decisions and must ordinarily wait until the end of trial to ob-tain review. An acute instance of delay arose in O'Rourke v. Conti-nental Cas. Co., 35 where the defendant had as early as 1990 opposed plaintiff's motion to amend his age discrimination complaint, which alleged discriminatory termination, to add a claim of retaliation. The defendant objected that plaintiff's 1986 EEOC administrative charge made no mention of retaliation and that there had been no concilia-tion over that allegation. The judge first denied plaintiff leave to amend the complaint (in 1991), then granted leave on a motion for reconsideration (in 1992). 36 A trial on the merits ensued, resulting in a verdict for plaintiff only on the retaliation count. Then in 1993, to the plaintiff's great misfortune, the Seventh Circuit sided with the de-fendant and held that the retaliation claim was not within the scope of the charge. 37

The outcome of the summary judgment appeals mirrors the re-versal rate for plaintiffs in appeals generally over the study period. The 32 reversals for plaintiffs in 147 plaintiffs' appeals 38 results in a 21.77% reversal rate. We survey in more detail below (in Section II. A) the growing predominance of the summary judgment decisions on the appellate landscape.

C. VOTING RECORDS OF INDIVIDUAL CIRCUIT JUDGES

Although this article focuses on the Seventh Circuit as an institu-tion, some words are in order about the individual judges who make up the bench Ī the eleven active judges (Richard A. Posner, Walter J. [P.73] Cummings, John L. Coffey, Joel M. Flaum, Frank H. Easterbrook, Kenneth F. Ripple, Daniel A. Manion, Michael S. Kanne, Ilana Dia-mond Rovner, Diane P. Wood, and Terence T. Evans) and three se-nior judges (Richard D. Cudahy, William J. Bauer, and Harlington Wood, Jr.) who were active at the opening of the study period and who, as of 1996, still sat regularly with the court.

TABLE 3: VOTING RECORD OF JUDGES IN EMPLOYMENT DISCRIMINATION CASES (1992-96)



Votes for Plaintiff Aff Rev W C D Votes for Defendant Aff Rev W C D
CUMMINGS19108401393531401
POSNER207121201494721900
COFFEY19910400282431201
FLAUM201191100423831210
EASTERBROOK22715500403811410
RIPPLE146750126240911
MANION1163420453911406
KANNE18513400494631700
ROVNER194830723221700
D. WOOD51440011101500
EVANS33010013121200
BAUER20137200444011312
H. WOOD116540021200410
CUDAHY26713120628251611

W -- Signed Opinion C -- Concurring Opinion D -- Dissenting Opinion

Table 3 sets forth, for each judge, the number of votes each judge cast during study period. In addition to the tallies of votes in favor of employers and employees; the chart also indicates the number of ma-jority and separate opinions each judge signed. (Judges Diane Wood and Evans joined the court in 1995, so their total numbers are small.) Table 4 analyzes these raw numbers to assess each judge's productivity and reversal rate in favor of plaintiffs. Productivity is addressed by the third column of Table 4, "Percentage of Cases Where Judge Wrote Opinion," which is a simple division of columns one and two (# 2/# 1). Assuming no separate opinions and an even division of labor in em-ployment discrimination cases, a court of appeals judge would be ex-pected to write opinions in 33.33% of such cases on which she or he sits; of course, the filing of separate opinions brings the average up a bit. We discover that some judges fall above the average expected [P.74] number of opinions (Judges Posner, Manion, Ripple, Rovner and Cudahy all exceed 40%), while others fall below (Judges Cummings, Easterbrook, Kanne, Bauer and Harlington Wood fall below the ex-pected 33.33% figure), although the difference between the extremes turns out not to be statistically significant. 39

TABLE 4: WRITING AND REVERSAL RATES FOR SEVENTH CIRCUIT JUDGES


1.2.3.4.5.
Total Votes in Employment Discrimination Cases Total Written Opinions (Includes Separate Opinions) Percentage of Cases Where Judge Wrote Opinion (Majority or Separate) Reversal Rate for Plaintiffs (Includes Dissents) Reversal Rate for Defendants (Includes Dissents)
CUMMINGS581831.34%18.18%28.57%
POSNER693246.38%21.66%22.22%
COFFEY471634.04%26.47%30.77%
FLAUM622438.71%19.15%21.43%
EASTERBROOK622032.26%28.30%14.29%
RIPPLE401742.50%21.88%14.29%
MANION562646.43%7.32%53.85%
KANNE672130.88%22.03%37.50%
ROVNER421842.86%40.54%20.00%
D. WOOD16956.25%28.57%50.00%
EVANS16318.75%0.00%25.00%
BAUER641624.62%14.29%18.75%
H. WOOD32928.13%20.00%0.00%
CUDAHY542546.30%40.48%22.22%

Column 4 of Table 4 states the percentage of votes each judge cast in favor of plaintiffs-appellants, including dissents written on plaintiffs' behalf. These rates range widely below and above the 22.85% mean figure calculated from Table 1. By wide margins, Judges Manion and Bauer turned out to be the least likely to cast a vote in favor of plaintiffs-appellants over the study period, while Judges Cudahy and Rovner were the most likely to reverse on behalf of plaintiffs. While these numbers are likely to interest attorneys who practice before the Seventh Circuit, they must be read with caution. [P.75] The commonplaces of appellate decision-making -- that the court works in panels and that opinions are collegial products -- doubtlessly affect the averages. The judge's omission of a separate opinion, for instance, does not necessarily signal agreement with the opinion's analysis or even the result. The numbers even hold a surprise: Judges Easterbrook and Coffey, who are generally perceived as unsympa-thetic to plaintiffs, 40 sport reversal rates in favor of plaintiff-appellants several points above the mean average (Table 4, column 4).

II. CERTAIN TENDENCIES IN THE SEVENTH CIRCUIT'S CASE LAW

Pushed too far, there is a fallacy to the statistical approach set forth above. Not every plaintiff's appeal has a 23% chance of attain-ing reversal, any more than every novel published has an equal chance of winning a Pulitzer Prize. The Seventh Circuit told us 267 times over five years what it takes to win or lose an employment discrimina-tion case before it. Some cases, and some legal approaches, are more likely to prevail than others. A study of the opinions reveals certain tendencies of the Seventh Circuit that distinguish its development of the law. This article focuses on two points. First, the Seventh Circuit's published decisions on summary judgment have overall reflected the same reversal rate for plaintiffs as found over the entire dataset, sug-gesting an evenhandedness by the court on these appeals as well. In some notable instances, though, the court has insisted upon a height-ened sufficiency of the evidence standard on summary judgment that is not mirrored in the trial verdicts for plaintiffs appealed in the same circuit. Second, the Seventh Circuit has avoided the path taken by other courts of appeals during this period of imposing extra-statutory rules and defenses, such as "pretext-plus" and the "after-acquired evi-dence" rule, which have dogged plaintiffs in other courts.

A. THE PREDOMINANCE OF SUMMARY JUDGMENT

1. The Statistics

Still under the sway of the Celotex-Anderson-Matsushita triad of cases decided a decade ago by the U. S. Supreme Court, 41 a truism of [P.76] contemporary civil litigation has been its increased summariness. The Seventh Circuit is no stranger to this trend. Half or more of the court's published opinions in the employment discrimination field concern appeals of summary judgment. Table 5 shows a rising arc of published appeals at the summary judgment stage between 1992 and 1996 relative to the number of published trial appeals. In 1992, the published appeals from summary judgment and trials were in rough parity. By 1995, there were two summary judgment appeals reported for every trial appeal reported. And by 1996, there were nearly four published summary judgment decisions for every published appeal from a trial. 42 This trend proceeds despite the amendment of Title VII to permit jury trials under the 1991 Civil Rights Act. 43

TABLE 5: YEAR-BY-YEAR RESULTS IN SUMMARY JUDGMENT CASES


Total Summary Judgments Appeals Reversal of Summary Judgments Reversal Rate of Summary Judgments (in favor of Plaintiffs) Total Appeals of Trials (and Post-Trial Motions) Ratio of Trials/Post-Trial Motions to Summary Judgment Percentage of Total Appeals Arising on Summary Judgment

199229517.24%211 : 1.3851.79%
199320 ( 44 )526.31%151 : 1.4348.78%
199425 ( 45 )624.00%161 : 1.5649.02%
199521314.29%101 : 2.1046.66%
1996541324.07%141 : 3.8672.97%
TOTAL1493221.77%761 : 1.9655.80%

Table 5 also shows that in 1996, the number of published summary judgment opinions doubled. This jolt can be attributed in part to the rising number of appeals under the ADA, now reaching the courts of appeals for the first time, 46 and to an uptick in sex harassment [P.77]ap-peals. 47 These two categories account for twenty summary judgment appeals in 1996. 48 The Seventh Circuit's reversal rate jumped up a bit from 1995 to 1996, to 24.07%; this is possibly attributable to the year's bumper crop of ADA appeals, which raised novel issues of law. 49 For the entire study period, the overall reversal rate (21.77%) is very close to the 23.04% reversal rate for plaintiffs overall. A change in just two plaintiff's appeals from affirmance to reversal of summary judgment would have brought the reversal rate to 23.45%, matching to the over-all reversal rate for plaintiffs.

2. Varieties of Summary Judgment Appeals

A cottage industry has grown around decrying the expansion of summary judgment to dispose of employment discrimination cases. 50 We will not replow that ground here. It is not the design of this survey to discover whether the Seventh Circuit is reaching the right results in summary judgment decisions. Instead, we pose the question of what kinds of issues are decided on summary judgment. We find four [P.78]vari-eties of appeal presented in the dataset. The first, and least controver-sial, are defaults where the plaintiff simply failed to respond to summary judgment. Second, the courts use summary judgment to re-solve questions of statutory construction where virtually no material facts are in dispute. Third, courts use summary judgment to decide discrete factual issues -- such as whether an action is timely or whether a plaintiff is a "qualified person" under the ADA -- where the field of inquiry is confined to a narrow array of facts. Finally, and most commonly, courts use summary judgment to adjudicate an entire case on the merits.

Default Appeals: The least controversial application of summary judgment is in cases where plaintiffs fail to respond (or to respond adequately) to the defendants' motion papers. Four of the published appeals during the study period fall into this category. 51

Statutory Construction Appeals: Sometimes appeals present an is-sue of first impression under a statute, where the issue is whether an entire category of conduct is proscribed by statute. These cases turn far less on the facts of the case (which are often not materially con-tested) than on whether the statute covers the practice at all. Such essentially legal determinations often warrant summary judgment be-cause the court, rather then the fact-finder, determines the scope of the statute. Fifteen such appeals appear in the dataset:

  1. EEOC v. Board of Governors of State Colleges and Universi-ties 52 : Collective bargaining agreement that precludes resorting to grievance proceedings after the filing of an EEOC charge or lawsuit violates the anti-retaliation provisions of the ADEA.
  2. Hamilton v. Caterpillar, Inc. 53 : Discrimination against employ-ees ages 40 to 50 in reduction in force in favor of older employ-ees does not violate the ADEA.
  3. Finnegan v. Trans World Airlines, Inc. 54 : Capping employees' vacation days as cost-saving measure does not violate ADEA, even if decision comes almost entirely at expense of employees ages 40 and over.
  4. McCann v. City of Chicago 55 : Fire Department authorized under the ADEA, 29 U. S. C. ¦ 623( j) (1994) to retain retire-ment ages temporarily. [P.79]
  5. EEOC v. State of Ill. 56 : State allowed to retire Special Agents under ADEA, 29 U. S. C. ¦ 623( i) (1994), which temporarily grandfathered in the state mandatory retirement programs in effect as of March 3, 1983.
  6. Roche v. City of Chicago 57 : ADEA authorization of municipal ordinances that impose a retirement age on firefighters did not extend to Chicago ordinance, which did not on its face apply to class of deputy commissioners.
  7. EEOC v. Francis W. Parker School 58 : Private school could use starting salary as a factor in making hiring decisions without violating the ADEA, even though starting salary correlates with job experience and age. 59
  8. EEOC v. State of Ill. 60 : State did not violate ADEA by its fail-ure to repeal pre-act mandatory retirement statute for local school teachers, where state had no effective control over rele-vant terms and conditions of teachers' employment.
  9. Veprinsky v. Fluor Daniel, Inc. 61 : Post-employment retaliation claims actionable under Title VII if they are related in some way to employment.
  10. EEOC v. Harvey L. Walner & Assoc. 62 : EEOC lacks statutory authority to pursue action for injunctive relief where all charges challenging relevant conduct were either untimely or withdrawn.
  11. Eckles v. Consolidated Rail Corp. 63 : It is not a reasonable ac-commodation under the ADA for an employer to renegotiate or violate seniority provisions under a collective bargaining agreement to give a disabled employee a better, less stressful shift.

Rounding out the group, four post-Patterson failure to promote cases fit into this category as well. 64

Single Issue Appeals: A third category of summary judgments is 35 cases where the district court decided a discrete factual issue against plaintiff that disposed of the entire case. Often the issue [P.80] presented is in the form of an affirmative defense, such as a timing issue -- whether plaintiff filed his charge or complaint within the stat-utory period -- or res judicata. Other times, the issue is whether plaintiff meets one element of the statutory definition, such as whether the plaintiff is a "qualified individual" under the ADA. What distinguishes these cases is that the court is not called upon to review all of the potential genuine issues of material facts, but only the facts pertaining to the limited issue presented.

These cases fell into the following categories (with the following totals):

  • Timeliness of charge: 9. 65
  • Claim preclusion/ res judicata: 7. 66
  • "Qualified person" under ADA/ Rehabilitation Act: 4. 67
  • Definition of "employer"/" employee": 4. 68
  • Release/ waiver: 2. 69
  • "Materially adverse employment action" (i. e. whether em-ployer's action was sufficiently detrimental to plaintiff to be ac-tionable): 3. 70
  • Scope of charge: 2. 71
  • Qualified immunity under 42 U. S. C. ¦ 1983 (1994): 1. 72
  • "After acquired" evidence rule: 1. 73 [P.81]
  • Definition of "bona fide private club" under Title VII: 1. 74
  • Discovery issue: 1. 75

Merits Appeals: The largest group of published summary judg-ment appeals is those cases where, based on an overall review of the merits, the court determines that the plaintiff essentially lacks a "fight-ing chance at trial" on liability. 76 Over the study period, there were 95 cases in all (constituting one-third, or 35.58%, of all published ap-peals) and, among those, a total of 18 reversals for plaintiffs, or a 18.95% reversal rate for published merits opinions. 77 Though lower than the 22% reversal rate benchmark generally found in this survey, it is scarcely significant: just three more reversals over five years would have brought us up to 22.10%. As we shall see in the next section, the merits decisions are pregnant with standards and sugges-tions for how far a plaintiff must go to prove her claim before she will be allowed to proceed to trial.

3. Themes Running Through the Summary Judgment Merits Appeals

The merits summary judgment decisions tell us a lot about the court's view of the sufficiency of proof in an employment discrimina-tion case. Five particular points that recur in the cases, expressly or implicitly, are restated below. A plaintiff who has no response to these points faces an uphill road in this circuit. [P.82]

a. A Lack of Candor or Consistency Does Not Amount to Pretext

The Supreme Court affirmed in St. Mary's Honor Center v. Hicks 78 that if an employer gives a false reason for its employment decision, a jury may infer that the fabrication masks the employer's intentional discrimination. 79 The Seventh Circuit has often reminded us of the corollary: that erroneous, inconsistent or even dishonest em-ployment practices do not always add up to pretext. This was the les-son of one of its key cases (outside of the study period), the en banc decision in Visser v. Packer Eng'g Assoc., Inc., 80 in which summary judgment was granted against a former corporate officer (Philip Vis-ser, age 64) who led an unsuccessful stockholder revolt against the employer's CEO (Kenneth Packer). For his role in the campaign, Vis-ser was fired from his job. Visser stressed that the company lacked any legitimate reason for ordering his termination. But the court lo-cated no evidence of pretext lurking in these circumstances. Judge Posner wrote for the Court that "[ i] f the employer offers a pretextĪ a phony reasonĪ for why it fired the employee, then the trier of fact is permitted, although not compelled, to infer that the real reason was age. . . . But there is no indication of pretext here. Packer fired Visser because Visser was disloyal to him." 81 The absence of a legitimate reason for a termination, in other words, does not mean by default that the real reason must be age (or other prohibited classification).

A year after Visser, the court held that an employer's failure to give a timely reason for a plaintiff's termination does not amount to pretext. In McCoy v. WGN Continental Broad. Co. 82 the employer failed to justify its termination of plaintiff before the Illinois Depart-ment of Human Services (the state-level equivalent to the EEOC) on account of plaintiff's poor performance. The court stated that it was "reluctant to give substantial weight to a position taken in adversary proceedings before the Department":

    Myriad factors undoubtedly influence the positions taken in such a forum, as opposed to federal court, including the opportunity and incentives for discovery and thorough internal investigation. This court declines to bind ADEA defendants to the positions they ini-tially assert in state administrative proceedings by rendering any [P.83] dif-ferent position a per se pretext for summary judgment purposes in subsequent proceedings. 83

An employer's failure to preface a termination with procedural safe-guards or other bells-and-whistles won't necessarily add up to pretext either. In Anderson v. Stauffer Chem. Co., 84 written by Judge Coffey, the employer failed to follow its ordinary practice of providing pro-gressive discipline (i. e. gradually increasing penalties for infractions) to the plaintiff before firing him. What's more, the plaintiff had re-cently received a decent review and a ten percent raise, and the only documentation of problems on the job were of recent (and suspect) origin. 85 The court affirmed summary judgment, holding that without some evidence that the job complaints were not genuine, the com-pany's abrupt and unheralded termination decision was not pretextual. 86

Finally, the court has held that if the employer presents multiple reasons for terminating a plaintiff, and the plaintiff successfully knocks down some of the reasons, the employer may still prevail on summary judgment provided that at least one pin is standing. 87 Wolf v. Buss (America) Inc., 88 written by Senior Judge Harlington Wood, provides an object lesson. The plaintiff, a 53-year-old chief service engineer, lost his job during a reduction in force. Buss America advanced no [P.84] fewer that six performance-related criticisms supporting Wolf's termi-nation instead of a 34-year-old staff member: that Wolf complained to the parent company about the subsidiary's operations, other than through channels; that he submitted late service reports; that he was dilatory about obtaining a home telephone; that he was supposedly "arrogant" to customers; that he failed to stay in touch with the office while on the road; and he was prone to talk excessively. 89 While the court forthrightly acknowledged that Wolf presented factual disputes over the genuineness of four of these justifications, the first two rea-sons (the complaints and the late service reports) combined with a downturn in the business gave Buss America all the reason it needed to layoff Wolf. 90 The opinion never dares tell the reader what to make of the possibility that the employer may have fabricated four other reasons in court to support its termination of Wolf. 91 Instead, the court maintained that "the four reasons which [Wolf] has successfully called into question are neither 'so intertwined, ' nor 'so fishy' as to call the remaining two reasons into doubt." 92 More disconcerting, the opinion provides no basis for believing that the two reasons standing alone could have ever supported the RIF decision.

b. Plaintiffs Must Prove That Their Facts Are Not the Product of Chance

The Supreme Court reaffirmed in Hicks that more favorable treatment of comparable employees outside of the protected group, those who are "similarly situated" (e. g. had similar duties, seniority, skills and level of authority), offers some evidence of discrimination. 93 In the Seventh Circuit, though, the existence of comparable employ-ees may be just the start of the inquiry. Plaintiffs may be required to go beyond the individual instances and establish a pattern of worse treatment against the protected group to get past summary judg-ment. 94 As Judge Easterbrook has written, [P.85]

    [c]laims of discrimination are hard to prove one case at a time. An employer can offer some proper explanation for almost any deci-sion. A pattern of treating older (or black, or female) employees worse than others speaks more loudly. The law of large numbers smooths over the quirks and turns of fate that make finding 'the' cause of a particular discharge so hard. 95

In Kuhn v. Ball State Univ., 96 an ADEA termination case, the plaintiff lost summary judgment in the district court in which he attempted a comparison to similarly situated younger employees. The court, again per Judge Easterbrook, wrote: "What a plaintiff in Kuhn's position has to do is subject all of the employer's decisions to statistical analy-sis to find out whether age makes a difference. Our opinions empha-size the need to get beyond a few comparison cases, and we cannot stress this point enough." 97 In short, unless the comparative evidence can be placed in the context of other, corresponding instances of dis-crimination, its probative value is diminished.

c. Employers Have Businesses to Run, Too

The Seventh Circuit, or at least some of its members, worries that as employers restructure their worksites to fend off liability for em-ployment discrimination, the workplace becomes more rigid, less manageable and increasingly burdened with expensive adaptations. The court also struggles with the tension of holding employers liable for co-worker conduct (especially in the harassment arena) that is dif-ficult to monitor. It has explicitly recited these considerations in af-firming summary judgment. We consider three such opinions here (all written by Judge Posner).

Vande Zande v. State of Wis. Dep't of Admin., 98 the first ADA case decided in the Seventh Circuit, the court considered what Con-gress meant by requiring employers to make "reasonable accommoda-tions" to the disabilities of applicants or employees. Here, the plaintiff was a state employee who used a wheelchair due to spinal paralysis. Her tasks were described as essentially clerical and secreta-rial. Her claims were that (1) during an eight-week period when she [P.86] was forced to stay at home (due to pressure ulcers), she should have been allowed to work at home full time, and (2) that the kitchenette units were built two inches too high for her to use comfortably. 99 The court held that under the ADA that "reasonable accommodations" of disabled employees entailed a bottom-line consideration of whether the cost of a proposed accommodation was "disproportionate to the benefit." 100 Even if the employer were flush with cash, "it would not be required to bring about a trivial improvement in the life of a dis-abled employee. If the nation's employers have potentially unlimited financial obligations to 43 million disabled persons, the Americans with Disabilities Act will have imposed an indirect tax potentially greater than the national debt." 101 The court held that both of the proposed accommodations flunked. Productivity at home is "inevita-bly" compromised, especially where the job calls for "team work," rendering the proposed at-home, full time work schedule infeasible. And while conceding that lower shelves could have been installed for under $2000, the availability of alternatives at the worksites (such as sink space in the bathroom to clean out coffee cups), made even this modest expenditure unnecessary "to enable the disabled worker to work in reasonable comfort." 102

Second, there is Galloway v. General Motors Serv. Parts Opera-tions, 103 a sex harassment case. The court found as a matter of law that a coworker's repeated use of the words "bitch" and "sick bitch," targeted at one female employee, failed to rise to actionable harass-ment, on the theory that the word "bitch" fails "to connote some spe-cific female characteristic." 104 Now, one unfamiliar with this case might have thought it to be the fact finder's job to decide, in the set-ting of a trial with live testimony, whether the word "bitch" was suffi-ciently "gendered" to support a claim of harassment. Ms. Galloway probably took this point for granted. 105 Had she anticipated this rul-ing, she might have created a record below that the word "bitch" was used regularly only to describe women at the worksites, or she could have hired a linguistics or other social science expert to create an issue [P.87] of fact about the connotation of the word "bitch." 106 But overriding all of this was the court's alarm that an epithet as common and plastic as "bitch" should stir up litigation against an employer. There must be, in the court's words, a "safe harbor for employers in cases in which the alleged harassing conduct is too tepid or intermittent or equivocal to make a person believe that she has been discriminated against on the basis of her sex." 107

Our final and most striking instance is Troupe v. May Dep't Stores Co., decided in 1994. 108 The employee alleged a violation of the Preg-nancy Discrimination Act (PDA) under Title VII. Lord & Taylor (the employer) terminated Troupe from her sales job the day before her maternity leave was to start, avowedly due to a pattern of tardies asso-ciated (it was uncontested) with her pregnancy. Troupe suffered from unusually severe morning sickness. She received a part-time work schedule, but even with this accommodation she was sick much of the time and arrived late to work (or left early) some 26 times from Janu-ary to June, 1991. These late days were the subject of two warnings by the company. Troupe was placed on probation in March of that year, but she continued to experience attendance problems. On the day she was fired, Troupe testified, her direct supervisor told her that she "was going to be terminated because [the supervisor] didn't think I was coming back to work after I had my baby." 109

A fact-finder faced with this assemblage of facts could, Troupe contended, rationally find liability against Lord & Taylor for preg-nancy discrimination. 110 Summary judgment was nevertheless granted by the district court and affirmed by the Seventh Circuit. The opinion (by Judge Posner) began by correcting the district court, in so far as it held that Troupe was required to prove either the existence of com-parative, non-pregnant employees who were better treated than she (to establish pretext) or else produce "direct" evidence of discrimina-tory intent (essentially, an acknowledgment by the company that it meant to discriminate). The court reminded all concerned that cir-cumstantial evidence -- such as "suspicious timing, ambiguous [P.88]state-ments oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces" 111 -- is another route to establish an inference of discrimination:

    For it is not true that to get over the hurdle of summary judgment a plaintiff must produce the equivalent of an admission of guilt by the defendant. All that is required is evidence from which a rational trier of fact could reasonably infer that the defendant had fired the plaintiff because the latter was a member of a protected class, in this case the class of pregnant women. 112

The court nonetheless affirmed summary judgment finding that plain-tiff failed to meet her burden under either of these standards.

The court's analysis began with the employer's justification: Troupe's tardiness supposedly became intolerable to Lord & Taylor. The court derided Troupe's case as having "only two facts to offer." 113 The first was the "suspicious timing" of Troupe's termination, one day before her leave was to begin. A finder of fact might infer, the court was willing to assume, that if tardiness were the issue it was not sensi-ble for Lord & Taylor to wait six months until the brink of delivery to lower the boom. But the court went on to consider the possibility that the company was driven by a motive to deter others from misbehav-ior, rather than to simply correct Troupe's behavior: "If the company did not fire her, its warnings and threats would seem empty. Employ-ees would be encouraged to flout work rules knowing that the only sanction would be a toothless warning or a meaningless period of pro-bation." 114 Oddly, the court cited no record evidence that (1) these reasons in fact impelled Lord & Taylor to fire Troupe when it did, or (2) that any employee other than Troupe and her supervisor was even aware of the sequence of events (thus blowing a hole in the deterrence theory). Lord & Taylor also knew that Troupe's tardiness was transi-tory -- her work history for the three years before the pregnancy had been "entirely satisfactory" -- making the Seventh Circuit's "deter-rence" dictum even less plausible under the circumstances. 115 None-theless, the Seventh Circuit held that Lord & Taylor's interest in maintaining employee discipline dissipated any discriminatory inference. [P.89]

d. Suspicious Comments By Company Employees Are Not a Trump

The reporters are littered with cases where plaintiffs argued un-successfully that biased comments by bosses, co-workers and others created triable issues of fact about discriminatory intent. As we shall see, the Seventh Circuit reviews these arguments with a hard eye.

We will continue to review Troupe, which was discussed in the prior section. Another fact advanced by plaintiff in opposition to summary judgment was the supervisor's statement to Troupe on the day of her termination, which could amount to an "ambiguous state-ment" or "comment directed at . . . the protected group." 116 A fact finder could infer from the statement that the supervisor, (deemed a decisionmaker, although the opinion leaves her status less than clear) harbored an animus against pregnant employees, reinforced by a ster-eotype that they all bail out of their jobs to stay home with their ba-bies. The court, though, proceeded to read the supervisor's comment straight: "that [Troupe] was terminated because her employer did not expect her to return to work after her maternity leave was up." 117 Does this state of mind violate Title VII, the panel queried? As it turned out for Troupe, the answer was no: the employer was free to fire Troupe simply because in Lord & Taylor's view "she cost the com-pany more [in benefits] than she was worth to it." 118 The court con-cluded that Troupe's failure to round up comparables (i. e. other, non-pregnant employees who were treated better than Troupe with regard to tardies or sick leave) "doomed her case," 119 even though the court itself concluded (just two pages earlier in the opinion) that it was not strictly necessary to prove the existence of comparables in a Title VII case if other, circumstantial evidence creates an inference of discrimination.

Troupe is in line with a series of cases in which plaintiffs offered comments as evidence of discrimination that were held too remote (in time, relationship to plaintiff, etc.) or too ambiguous to bear any pro-bative weight. 120 Notably, in only one case in the study period did a [P.90] plaintiff succeed in reversing summary judgment substantially on the basis of such comments. In Robinson v. PPG Industries, Inc., 121 the court (per Judge Rovner) found that an ADEA plaintiff created a dis-puted issue of material fact about comments supposedly made by plaintiff's immediate superior on repeated occasions that the company shouldn't keep employees on until they reached age sixty-five. The frequency of the comments, their closeness in time to the termination decision (up to and including plaintiff's final day of work) and the work relationship between the plaintiff and the supervisor conjoined to give this evidence its added oomph. 122 The lesson for plaintiffs here is that they should not get fixated on the taunts, slights and other background noise of discrimination; it cuts little ice with the Seventh Circuit.

e. Proving Pretext Is Painstaking Work

What does impress the Seventh Circuit is a close fit between the employer's explanation for its decision and the employee's rebuttal evidence (thus establishing pretext), combined with some other cir-cumstantial evidence of discriminatory intent. Reviewing the 18 re-versals in favor of plaintiffs on summary judgment over the study period, 123 the common denominator among them is (1) the plaintiff's match of detail to defense, simultaneously laying the factual predicate [P.91] to prove disparate treatment by the employer and exposing the weak-nesses of the supposedly neutral explanation of event; and (2) the presentation of other evidence that more directly supports an infer-ence of discrimination.

We see this combination at work in Perdomo v. Browner, 124 an opinion written by Judge Coffey. This was a Title VII racial failure to promote claim. The panel held that Perdomo, a staff attorney at the U. S. Environmental Protection Administration (EPA) who was His-panic, presented a genuine issue of fact as to whether her supervisor honestly believed that she was less qualified than two non-Hispanic candidates for the same jobs. The employee's proof directly con-fronted the EPA's avowed justification that the promotions were based on the "ability of the respective applicants to analyze complex legal matters, the ability to provide legal advice independently, and demonstrated competence in litigation skills." 125 Perdomo presented evidence that, compared to the other candidates, she had better scores, longer agency experience, more commendations and stronger endorsements from the supervisor. The EPA, meanwhile, failed to provide any evidence in response that the non-Hispanic candidates met the analytical and experience qualifications set forth by the agency. Also, to bolster the inference of discrimination, Perdomo presented evidence that Hispanics were segregated in one section of the agency (establishing the non-randomness of the discrimination) and that the section chief snubbed Hispanic professionals (exposing discriminatory intent). 126

Likewise, in Piraino v. Int'l Orientation Resources, Inc., 127 written by Judge Diane Wood, the plaintiff presented both kinds of evidence in her pregnancy discrimination case. The district court granted sum-mary judgment to the employer in that case on the ground that it had a legitimate, non-discriminatory reason to treat plaintiff's absence from her job due to the birth of her child as a voluntary termination. The company pointed to a leave of absence policy that specifically excluded employees (like plaintiff) who had worked less than a year. The panel nonetheless reversed summary judgment. First, the em-ployer's explanation of its policy did not jibe with its many oral repre-sentations that the employee had "not to worry" about losing her job [P.92] before she took leave and that her absence would be "no problem." 128 She raised a genuine issue of material fact about whether leave policy was changed during plaintiff's pregnancy specifically to deny her a right to return to her job and, in effect, to terminate her. The panel concluded that the jury could believe that the employer's prior, un-written policy would have allowed plaintiff to take leave. Even if the written leave policy was facially neutral, as the employer argued, it could violate Title VII if it was adopted for a discriminatory purpose. Also favoring plaintiff was circumstantial evidence that the employer's representatives misrepresented the leave policy to plaintiff and adopted a different written policy to coincide with plaintiff's expected absence, a "suspicious timing" issue. 129

One could draw the conclusion from these reported decisions that the Seventh Circuit hands out its wins only in the easy cases, where the plaintiff offers to prove both pretext and circumstantial evidence of discrimination. But another way to look at the same appeals is that careful advocacy, painstakingly focused on the relevant issues of pre-text and other evidence of discrimination, can push the average case across the line from affirmance to reversal. Whether right or wrong, practitioners in this circuit are well advised to appreciate the Seventh Circuit's rigorous standards and tailor their arguments accordingly.

3. Conditions and Reservations

We concluded above that the Seventh Circuit's treatment of sum-mary judgment appeals has been reasonably even-handed, at least measured statistically by the published opinions, and we shall see more below that the court has turned back a number of pro-defendant legal arguments in the past five years. Why, then, might there be any lingering question about the impartiality of the Seventh Circuit in em-ployment discrimination cases? First, some judges are more likely to reverse summary judgment than others. Note that out of the 32 rever-sals of summary judgment, 15 of the opinions were either signed or joined by Senior Judge Cudahy 130 or Judge Rovner. 131 It is easy to [P.93] imagine that without these two judges' efforts to police the borders of summary judgment, the reversal rate for plaintiffs would be measura-bly lower. At the other extreme, Judge Manion voted to reverse sum-mary judgment just twice in five years, 132 while affirming summary judgment 24 times.

Second, there's a seismic fault running between the Seventh Cir-cuit's summary judgment cases and its cases affirming trial victories for plaintiffs. In the latter group, the triers of fact appear to apply a more generous standard of proof for plaintiffs than the Seventh Cir-cuit. Here are five examples of cases where plaintiffs succeeded at trial but, paradoxically, might not have survived summary judgment (with the authors of the opinions noted in parentheses):

(a) Pierce v. Atchison, Topeka and Santa Fe Ry. Co. (Judge Flaum): 133 This ADEA case involved a railroad employee (specifi-cally, a Senior Analyst who studied rate changes for the company) who was terminated during a putative reduction in force. 134 His entire proof before the jury, according to the synopsis in the opinion, was that (1) Pierce was 51 years old at termination; 135 (2) he was told that his termination was pursuant to a reduction in force, although the company retained other Senior Analysts and even had a vacancy dur- ing [P.94] the same period; 136 (3) seven others hired by the railroad as Senior Analysts after Pierce's departure were in their twenties; 137 and (4) the supervisors' testimony at trial about the reasons for Pierce's selection was equivocal at best. 138 Often on summary judgment, the Seventh Circuit places little stock on the absence (or weakness) of corroborat-ing evidence of the employer's explanation of its employment deci-sions, 139 but here the jury was evidentially allowed to infer that the lack of a documented explanation was probative.

(b) Dunning v. Simmons Airlines, Inc. (Judge Coffey): 140 In this retaliation case under Section 704 of Title VII, 141 plaintiff's supervisor placed her on an involuntary, unpaid pregnancy leave. Dunning, who worked as a fleet service clerk at O'Hare International Airport, con-tended that she was denied light duty work (often assigned to preg-nant women in that position) in retaliation for her complaint to the company about sex harassment. Her proof of the link between the forced leave and her complaint included (1) that at least four other women were previously assigned light duty work during their pregnancies; and (2) that light duty work existed at the time Dunning was placed on leave. In addition, the district court (in a bench trial) refused to credit the employer's explanation that the supervisor lacked authority to place Dunning on light duty and that even the light duty jobs would require some lifting. 142 Compare this to the summary judgment cases where the employers' explanations of their reasons, though ultimately perhaps in error, were nonetheless held to be genuine as a matter of law. 143 [P.95]

(c) Molnar v. United Technologies Otis Elevator (Judge Bauer): 144 In this ADEA case, the evidence in a nutshell was (1) that Molnar -- an elevator mechanic -- was age 62, was terminated and was replaced by a 41 year old; (2) that he had a good history with the company (established by testimony from co-workers and customers); (3) that one of his admitted job deficiencies (electrical troubleshoot-ing) could have been corrected through training; and (4) the company could not document customer complaints it claimed to have received about Molnar. 145 While again there was no direct evidence of discrim-ination, the court held that the trial evidence supported liability and "easily met" the heightened standard for willfulness entitling plaintiff to double damages. 146 On summary judgment, by contrast, the Sev-enth Circuit has rejected the proffer of co-worker testimony about plaintiff's performance, on the ground that such evidence does not bear on the employer's state of mind. 147

(d) Artis v. Hitachi Zosen Clearing, Inc. (Judge Cudahy): 148 Ar-tis, an African-American who worked for the defendant as a lathe op-erator, claimed that he was not recalled from a layoff on account of race. Affirming a judgment for plaintiff after a bench trial under Title VII, 149 the court held that the judgment was supported by the follow-ing evidence: (1) that plaintiff had a contractual right to be recalled, while the company instead recalled two junior lathe operators who were white; and (2) expert testimony established that Artis could per-form the job that the other two lathe operators were recalled to fill (i. e. work on a specialized lathe machine called a "Poreba"). 150 This verdict was affirmed even though the employer skipped over several white lathe operators in its recall, disrupting the pattern of discrimina-tion that other cases demand of plaintiffs on summary judgment. 151

(e) Giacoletto v. Amax Zinc Co. 152 (Judge Eschbach 153 ): Finally, in an ADEA termination case, the jury was able to infer discrimina-tion [P.96] from the following facts: (1) that plaintiff's supervisor sounded him out about taking early retirement; (2) "that although [plaintiff] had poor interpersonal skills, he was an effective manager neverthe-less" and was kept on 14 years despite his abrasive personality; (3) that a negative evaluation relied upon by the employer could have been fabricated; (4) that Amax failed to follow its procedures for ter-minating employees (including counseling). 154 As the court observed, "[ t] his case illustrates the risk employers take when they make em-ployment decisions based on essentially subjective judgments about qualities such as 'interpersonal skills. ' Although relying on subjective factors is not per se illegal, the jury may, under some circumstances, reasonably consider subjective reasons as pretexts for discrimina-tion." 155 This is quite a different result from the circuit's summary judgment cases that declined to give any weight to the absence of ob-jective standards underlying a termination decision. 156

Only at some pains can these five trial appeals be told apart from their summary judgment cousins. If the essential purpose of summary judgment (against the backdrop of the Seventh Amendment) is to prevent the "[ virtually] no evidence" cases from going to the jury, then it is tough to fathom how Troupe, McCoy and their company flunked while plaintiffs in cases such as Molnar and Giacoletto not only went to trial, but won. We might hypothesize (but leave for an-other survey to study) that some district court and court of appeals judges overestimate their abilities to predict what reasonable jurors might do.

Third, and finally, the rhetoric of the Seventh Circuit's opinions can at times be fiercely anti-plaintiff. The following are illustrative. "In raising this argument [that a proposed early retirement package was evidence of age bias], we suppose that Schultz is trying to teach General Electric a lesson about going the extra mile to help a termi-nated employee, especially when that employee was a lousy one." 157 "Sample was a marginal employee for whom Aldi exhibited an ex-traordinary amount of patience." 158 In an ADA case, the court baldly challenged the plaintiff's good faith: "[ T] here is a clear bright line of [P.97] demarcation between extending the statutory protection to a truly dis-abled individual (so that he or she can lead a normal life) and allowing an individual with marginal impairment to use disability laws as bar-gaining chips to gain a competitive advantage." 159 The court grumbles sometimes even if plaintiffs win. 160

And what private plaintiffs and their attorneys endure is nothing compared to the court's ritual pillorying of EEOC, as illustrated by the following three cases:

  • The Commission lost a pattern-or-practice Title VII trial alleging that a Korean-owned janitorial company discriminated against non-Koreans by maintaining a "word of mouth" recruitment policy. In the appeal, EEOC v. Consolidated Serv. Sys., 161 the court (per Judge Posner) accuses the agency of presenting "a sorry parade of witnesses" and "dragg[ ing] [Consolidated] through seven years of federal litigation at outrageous expense for a firm of its size." 162 The court concluded that "[ i] t would be a bitter irony if the federal agency dedicated to enforcing the antidiscrimination laws succeeded in using those laws to kick [immigrant business owners] off the ladder by compelling them to institute costly systems of hiring." 163
  • In EEOC v. G-K-G, Inc., 164 the court severely criticized the EEOC's intervention into an individual ADEA case (even though it ultimately upheld the EEOC's legal authority to pur-sue the action). The court (through Judge Posner) stated in part: "The Commission's insistence on remaining a plaintiff in a case such as this where it seeks the identical relief as the well-repre-sented individual plaintiff seems especially pointless. . . . [W] e are greatly surprised to find this particular agency, which has long complained of being understaffed and has long been criti-cized for delay, acting as if it were bounteously endowed." 165
  • Finally, there is EEOC v. Chicago Club, 166 a case in which the Commission argued that the defendant did not fall under the bona fide private membership club exemption of Title VII. Judge Kanne wrote for the panel that "we are astounded by the EEOC's decision to pursue this lawsuit in the face of over-whelming evidence of the Club's selective membership admis-sion and restricted guest practices. . . . In the hopes of altering the playing field for all private clubs under Title VII, EEOC [P.98] de-cided to go after the biggest fish in the pond. In the process, it has diminished its reputation and needlessly squandered both its own resources and those of the federal courts." 167 In addition to these salvos against the EEOC's enforcement policies, the court also takes regular potshots at the EEOC's legal strategies. 168

Now, the Commission has no forum equal to the Seventh Circuit in which to air its side of these controversies. What is more, the Sev-enth Circuit's perspective on the EEOC is formed solely by its en-counter with the odd cases that migrate up the appellate channel, a tiny and unrepresentative segment of the agency's work. Judge Pos-ner wrote (somewhat dismissively) in the G-K-G Inc. case that "[ o] f course it is not for judges to tell an administrative agency how to allo-cate its resources." 169 This is literally true: that duty falls to the other two branches of government. And just as attorneys have no direct insight into how the court reaches decisions in particular cases, the Seventh Circuit can only speculate about why the EEOC litigates and appeals certain cases and not others. The Seventh Circuit's abuse of the Commission is all the more gratuitous for its futility, for no matter what the court does or says, the EEOC will continue to press its argu-ments because it could one day prevail in a more hospitable court somewhere else, perhaps even the Supreme Court. 170 Even if some Seventh Circuit judges find the agency's arguments out of synch with the court's own priorities, they could make their point fully and best by just handing the agency its losses, instead of second guessing its administrative priorities. The EEOC's lawyers can draw their own conclusions about whether to bring future actions in this circuit.

In sum, while no one would begrudge the opinion-writers (who often face a dull task) a little bit of cathartic mischief, these instances (and others) of hyperbole, sarcasm and outright insult have a corro-sive effect on the bar, parties and other court observers. What is more, there are seldom such attacks launched against employers and [P.99] their attorneys, which imparts a distinct aroma of bias. 171 All told, it would benefit everyone for the judges, at the end of the process, to trim these excesses from the published opinions.

* * * *

One panel of the court in early 1997 showed a glimmer of recog-nition that this experiment in civil procedure -- shifting the large ma-jority of merits determinations to summary judgment -- has reached its limits. In Wallace v. SMC Pneumatics, Inc., 172 Judge Posner's opin-ion noted, with a hint of understatement, that "[ s] ummary judgment is hardly unknown, or for that matter rare, in employment discrimina-tion cases." 173 Nonetheless, Judge Posner went on to warn district courts against reliance on Rule 56 for docket control:

    The expanding federal caseload has contributed to a drift in many areas of federal litigation toward substituting summary judgment for trial. The drift is understandable, given caseload pressures that in combination with the Speedy Trial Act sometimes make it diffi-cult to find time for civil trials in the busier federal districts. But it must be resisted unless and until Rule 56 is modified (so far as the Seventh Amendment permits) to bring federal practice closer to the practice in the legal systems of Continental Europe, where there is no hard and fast line between pretrial and trial and where proce-dure is more summary and informal than in the United States. We think that summary judgment was properly granted in this case, though our grounds differ from those given by the district judge; but we also think that the case pushes against the outer boundaries of the permissible use of summary judgment under current law. 174

The court's statement, taken seriously, is a constructive step back from summariness. 175 [P.100]

B. THE SEVENTH CIRCUIT'S AVERSION TO BRIGHT LINE RULES

Plaintiffs in the Seventh Circuit benefit from the court's skepti-cism about bright-line rules. Over the study period, the court regu-larly proved unwilling to adopt technical barriers to proof of an employer's motive or intent to discriminate, even while other courts (most often the Fourth and Fifth Circuits) embraced the same argu-ments. Employers baited the court repeatedly with such propositions as the "after-acquired evidence" rule, the bar to post-termination re-taliation claims under Title VII, and the prima facie requirement that an ADEA plaintiff produce comparables under age 40. The Seventh Circuit nearly always refused to bite.

The court's relative generosity about the prima facie standards of proof in discrimination cases was voiced by Judge Flaum in his opin-ion in Loyd v. Phillips Bros., Inc., 176 a case where the district court got tangled up applying the McDonnell Douglas test:

    While Title VII of the 1964 Civil Rights Act, 42 U. S. C. ¦ 2000e et seq. (1994), is rather straightforward on its own terms (" It shall be an unlawful employment practice for an employer . . . to discrimi-nate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin. . . ."), a rather thick judicial gloss, over twenty years deep, has developed, in part to ac-commodate difficult matters of proof in diverse factual settings. Sometimes, however, too rigid adherence to the formulaic prescrip-tions of the appellate courts (which are laid out with particular fac-tual settings in mind and are seldom as generalizable as purported) blocks proper analysis of what should be uncomplicated issues of discrimination. 177

Just how uncomplicated the antidiscrimination analysis can be was il-lustrated by Judge Easterbrook's formulation of an ideal ADEA jury instruction in a 1994 case, Gehring v. Case Corp. 178 : "[ Y] ou must de-cide whether the employer would have fired [demoted, laid off] the employee if the employee had been younger than 40 and everything else had remained the same." 179 The court has continued to urge this as the legal standard for employment discrimination in subsequent opinions. 180 If the Seventh Circuit ever carries the logic of this stan-dard [P.101] out to the prima facie stage, it would sidestep entirely the Mc-Donnell Douglas quadrille that has dominated the scene for nearly a quarter of a century. 181 The only question that a court would ever have to face on liability (aside from affirmative defenses) is whether a rational trier of fact with all of the facts laid out before it could find that the employer or its agents more likely than not discriminated against plaintiff. 182

No cases better exemplify the circuit's allergy to precise formulae of discrimination than two 1994 cases where the court reversed judg-ments for employers after bench trials and ordered entry of judgment for employees: Loyd v. Phillips Brothers, Inc. 183 and Carr v. Allison Gas Turbine Div., Gen. Motors Corp. 184

In Loyd, the plaintiff alleged that the employer failed to promote women bookbinders from the J-2 classification to J-1 (the highest paid group), even though male J-2 bookbinders and even male new hires were regularly invited by the company to become J-1's. The result was a starkly segregated worksite, with women holding down the lower-paying positions. The district court confusingly held that plain-tiff Loyd (a J-2 bookbinder) was not entitled to relief because she had never requested a promotion, 185 even though the gravamen of her complaint was that the company (a) only awarded promotions by invi-tation and (b) never extended invitations to women. The Seventh Cir-cuit saw right through this:

    If the plaintiff alleges that the employer's decision not to approach people of her status was itself illegitimately motivated and shows that but for such a practice she likely would have been approached, then all she must do to complete the chain of causation that would permit an initial inference of discriminatory treatment actually af-fecting her job situation is establish that, had the employer ap-proached her, she would have accepted the offered position. This is not a dramatic tailoring of McDonnell Douglas' second element; in fact it is a logical one, but it is one the district court did not consider. 186
[P.102]

Likewise in Carr, the district court was guilty of giving a hyper-technical application to the circuit's prior case law. The plaintiff, the only female tinsmith at an auto parts plant, was the target of a gro-tesque campaign of sex harassment. 187 The district court credited the plaintiff's account of the harassment, but then held that there could be no liability under the circuit's case law (in particular a 1991 case, Reed v. Shepard 188 ) because the plaintiff herself was known to use coarse language, and thus she supposedly invited her co-workers' crude and abusive behavior on herself. 189 The district court wrote that "the tin-ners' conduct, to the extent it may have constituted sexual harass-ment, was not unwelcome." 190 This explanation struck the panel majority as just "incredible." 191 It blinkered reality for the district court to read the plaintiff's deportment as implied consent to the har-assment. "The asymmetry of positions must be considered. She was one woman; they were many men. . . . . We have trouble imagining a situation in which male factory workers sexually harass a lone woman in self defense as it were; yet that at root is General Motors' character-ization of what happened here." 192 Carr thereby defused a potentially devastating piece of dicta in Reed and restored common sense to the circuit's sex harassment law.

Another instance of the court's flexibility is its treatment of the burden of proof under the ADA about whether the parties have made a good faith effort to adopt a reasonable accommodation. Employers in these cases have sought to place the entire burden on employees to pinpoint the particular accommodations required. The Seventh Cir-cuit, in two 1996 cases, resisted efforts to impose any such strict re-quirement on employees, and indeed went so far as to require employers to demonstrate that they independently and cooperatively investigated options for accommodation of disabled employees.

In the first case, Beck v. University of Wis., 193 the plaintiff was a secretary disabled with osteoarthritis and depression. She took a three month leave for "multiple medical conditions." Upon her re-turn, she was reassigned to a new job, but repetitive typing apparently aggravated her condition. She was again hospitalized for depression, [P.103] then returned to work with doctor letter recommending a reduced schedule. At this point, the assistant dean wrote Beck a memo ex-plaining that he was unclear on what accommodations were necessary for her to return to work. She was moved to new offices, placed on a reduced schedule and given a wrist brace for typing. Within six weeks of returning, Beck was hospitalized for the third time, placed on un-paid leave and eventually terminated for failing to report back to work. She filed a charge and then sued, alleging that the university failed to provide a reasonable accommodation -- in particular, that her new job assignment was a "small, isolated, cold and damp file room," that she was given "nothing to do," and that she was denied an adjustable keyboard which she requested to alleviate the discomfort caused by the typing. 194 The district court granted summary judgment on these claims.

On appeal, the Seventh Circuit affirmed summary judgment be-cause the plaintiff never adequately informed her employer about what accommodations could be made. The opinion, signed by Judge Cummings, noted that "the crux of this dispute is one not clearly an-swered by the ADA: does the employer or the employee bear the ulti-mate responsibility for determining exactly what accommodations are needed?" 195 It held that a disabled employee who has information within her control about her disability has the initial duty to request accommodations. Following that request, as part of an "interactive process," the employer bears a responsibility to review the employee's needs and make its own suggestions for accommodations. 196 If the process breaks down, then the court instructed that district courts should apply concepts of good faith and reasonable effort to assess who is responsible:

    No hard and fast rule will suffice, because neither party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to help the other party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility. 197
[P.104] Here, the court held there was no genuine issue of material fact that plaintiff was to blame for the impasse: she canceled a meeting with the university to discuss her medical condition and refused to sign re-leases to allow her employer to see additional medical information about her disabilities. 198

Applying the same concept of an "interactive process," the Sev-enth Circuit reversed summary judgment in Bultemeyer v. Fort Wayne Community Schools. 199 The plaintiff, a custodian, developed serious mental illnesses which led to extended leaves. When he returned to work, the school system refused to reassign plaintiff to a less stressful position, despite a doctor's advice. To the contrary, the plaintiff's foreman and the school's human resources director told him that he had to take a physical and would not receive special accommodations. Here, where the plaintiff (through his doctor) asked for a "less stress-ful" job, it was the employer's duty to get a clarification from the doc-tor and to ascertain whether less stressful work could be located, even in the absence of a specific request by the employee. The Seventh Circuit held that there was a genuine issue of material fact whether the school was unwilling to engage in the "interactive process" set forth in Beck. 200 Indeed, the employer had flatly told the plaintiff that he would not be accommodated, so a trier of fact could find that re-questing a specific accommodation would have been futile. Further, the employer conceivably failed to live up to its duties. As Judge Harlington Wood wrote, "The employer has to meet the employee half-way, and if it appears that the employee may need an accommo-dation but doesn't know how to ask for it, the employer should do what it can to help." 201

What follows here is half a dozen instances over the study period where the court rejected technical arguments and defenses advanced by employers:

1. Pretext-plus: In the years following McDonnell Douglas Corp. v. Green 202 and Texas Department of Community Affairs v. Bur-dine, 203 the circuits split over the legal significance of a fact-finder's determination that the plaintiff employee (a) proved a prima facie case of discrimination and (b) fully rebutted the employer's proffered [P.105] explanation for the adverse job action. Some circuits held that such findings automatically warranted a verdict for the employee, while others required additional evidence to support a finding of discrimina-tion (which came to be known as the "pretext-plus" standard). 204 Fi-nally, in St. Mary's Honor Center v. Hicks, 205 the Supreme Court cautiously split the difference and held, five to four, that the fact-finder in a discrimination case may find discrimination based solely upon the prima facie case and rebuttal evidence, but is not required to do so.

Notwithstanding the Hicks decision, the "pretext-plus" contro-versy stubbornly persisted; the focus of the inquiry simply shifted. The second wave of cases queried whether, under any circumstances, a district court could enter summary judgment or judgment as a mat-ter of law for a defendant when the plaintiff proved her prima facie case and created a genuine issue of material fact about the employer's proffered justifications. At least three circuits (the First, Fifth and Eighth) have expressly authorized district courts to grant such mo-tions whenever it is determined that the proof of pretext alone does not support a finding of discrimination. 206 This standard arose despite the Supreme Court's apparent endorsement in Hicks of allowing such straight pretext cases to be decided by the jury. 207

The Seventh Circuit has rejected the pretext-plus model of proof that has reemerged in the post-Hicks era. 208 The court announced within a year of the Hicks decision that it would not require a plaintiff on summary judgment to present evidence beyond proof of the prima facie case and rebuttal of the employer's proffered justification for the [P.106] adverse job action. In Anderson v. Baxter Healthcare Corp., 209 written by Judge Kanne, the court surveyed the competing views on "pretext-plus" versus "pretext-only" in the wake of Hicks. It held that the Hicks decision approved submission of straight pretext cases to the fact-finder in all instances, stating that "for summary judgment pur-poses, the non-moving party . . . has a lesser burden" of establishing a triable issue of fact than "pretext-plus" requires. 210 The panel also found that any suggestion in Hicks that plaintiff must present evidence of discrimination beyond the prima facie case and disproof of the em-ployer's proffered explanation was nonbinding dicta. 211 After Ander-son, the Seventh Circuit reversed summary judgment in four pretext cases during the study period. 212

2. Prima facie test for ADEA plaintiff when replacement is age forty or over: At least two circuits held during the study period that age discrimination plaintiffs could only prevail under the indirect (pre-text) method of proof if they were replaced by persons younger than forty. 213 Well before the Supreme Court unanimously discredited this spurious application of the McDonnell Douglas test in the O'Connor decision, 214 the Seventh Circuit had already decisively rejected it. 215 In a 1994 decision, Kralman v. Illinois Department of Veterans' Af-fairs, 216 the court relied on decisions by the majority of other circuits and a relevant EEOC regulation to find that a plaintiff who was 71 years old could spell out a prima facie ADEA case by showing that he was replaced by a 46-year-old. 217 Indeed, the Seventh Circuit has gone the extra step and applied O'Connor to the race discrimination field, holding that an employee replaced by someone of her race may still state a prima facie case. 218 [P.107]

3. After-acquired evidence: Another defense argument that en-joyed a brief but energetic existence was that a plaintiff who, it was later discovered, engaged in misconduct on the job and who might have been fired had the misdeeds come to light was equitably barred from pursuing a discrimination lawsuit. The Supreme Court held in McKennon v. Nashville Banner Publishing Co. 219 that discovery of such facts could not bar liability and could bar relief only from the date of discovery. Before this resolution, though, the circuits were about evenly split about whether such after-acquired evidence strictly barred a lawsuit or simply limited the relief available. 220 The Seventh Circuit tussled with the issue over several opinions before finally set-tling on limiting the remedy only. 221 In Kristufek v. Hussman Food Service Co., 222 the court held that when allegations of fraudulent con-duct on the job arise after the employee's termination, "[ t] he after discovered alternate reason comes too late" to justify that decision. 223 In separately reviewing the remedy, the court remanded the award with an instruction (like the rule adopted in McKennon) to end the running of back pay from the date that the alleged fraud was discovered. 224

4. Retaliation: Each of the antidiscrimination statutes contains provisions prohibiting employers from retaliating against those who press their rights (such as by filing a charge with the EEOC or bring-ing a lawsuit). The Seventh Circuit has been especially generous in the field of antiretaliation, allowing a variety of such claims to be [P.108] brought. 225 Judge Diane Wood's perceptive comments in Knox v. State of Indiana 226 are illustrative:

    [A] dverse actions can come in many shapes and sizes. No one would question the retaliatory effect of many actions that put the complainant in a more unfriendly working environment: actions like moving the person from a spacious, brightly lit office to a dingy closet, depriving the person of previously available support services (like secretarial help or a desktop computer), or cutting off chal-lenging assignments. . . . The law deliberately does not take a 'laun-dry list' approach to retaliation, because unfortunately its forms are as varied as the human imagination will permit. 227

The Seventh Circuit now finds itself in direct conflict on this point with the Fifth Circuit, which recently held in Mattern v. Eastman Ko-dak Co. 228 that only retaliation in "ultimate employment decisions" (i. e. hiring, firing, promotions) are actionable, rather then the more exquisite types of claims described by Judge Wood in Knox.

There was, for a while, an issue about whether post-termination retaliation was actionable under these sections, such as when a former employer provides false or misleading information about the plaintiffs to prospective employers. Because the antiretaliation statutes gener-ally refer to "employers," an argument made the rounds that only cur-rent, not past, "employers" could be held liable. Initial indications in two cases 229 were that the Seventh Circuit would not recognize post-retaliation claims. But faced squarely with the issue in Veprinsky v. Fluor Daniel, Inc., 230 the circuit recognized these claims (in an opinion written by Judge Rovner), provided that the retaliation related in some way to the plaintiff's current or prospective employment. Within a year of Veprinsky, the Supreme Court in Robinson v. Shell Oil Co. 231 authorized post-termination retaliation claims, reversing a Fourth Circuit decision to the contrary.

5. Tender back: Under common law contract principles, courts generally require a plaintiff seeking to rescind a release to tender back any consideration received as a precondition to suit. The Supreme [P.109] Court, in Hogue v. Southern Ry. Co. 232 rejected such a requirement in the context of putative settlements under the Federal Employers' Lia-bility Act. 233 There is presently a split in the circuits about whether tender back of severance benefits is a precondition to challenging pu-tative releases of age discrimination claims 234 (which releases, since 1990, have been governed by the terms of the Older Worker Benefits Protection Act, or OWBPA). 235 In Oberg v. Allied Van Lines, 236 writ-ten by Judge Flaum, the Seventh Circuit sided with the age discrimina-tion plaintiffs and held that it would not require tender back of benefits, relying largely on the Supreme Court's analysis in Hogue. 237 This issue is now before the Supreme Court, in a case originating from the Fifth Circuit. 238

6. Estoppel of ADA Claims: Employers now routinely press an argument in ADA cases that former employees who apply for Social Security Disability Insurance, Supplemental Social Security Income or state disability benefits automatically forfeit their right to obtain relief for disability discrimination. The predicate for this defense is that ap-plicants for public disability benefits must, in some fashion, declare [P.110] under penalty of perjury that they are totally or permanently disabled and unable to work. Such a declaration, it is argued, judicially or eq-uitably estops the former employee from claiming to be a "qualified individual" who "can perform the essential functions of the job" within the meaning of the ADA. 239 At least two circuits so far have been sold on the logic of this approach. 240

The Seventh Circuit rejected this approach twice during the study period. In Overton v. Reilly, 241 a Rehabilitation Act case, the district court granted summary judgment to the employer (the Environmental Protection Agency) based on a finding of the Social Security Admin-istration (SSA) that plaintiff was entitled to disability benefits. On appeal, the Seventh Circuit reversed and held that SSA's determina-tion of total disability did not preclude plaintiff being "qualified" to work under the ADA. 242 Judge Cudahy's opinion noted, as other courts had seemingly ignored, that "SSA may award disability benefits on a finding that the claimant meets the criteria for a listed disability, without inquiring into his ability to find work within the economy." 243 In other words, the definitions of disability under the Social Security Act and the ADA are not precisely coterminous, and a finding for plaintiff by the SSA does not foreclose a fresh look for possible dis-crimination under the ADA. Following Overton came Weiler v. Household Finance Corp., 244 written by Judge Manion, which reiter-ated the conclusion that, "[ b] ecause the ADA's determination of disa-bility and a determination under the Social Security disability system diverge significantly in their respective legal standards and statutory intent, determinations made by the Social Security Administration concerning disability are not dispositive findings for claims arising under the ADA." 245 Both Overton and Weiler leave it to the fact [P.111] finder to assess the weight to give to a determination or application for benefits. 246

* * * *

Naturally, the case law does not tilt all one way; sometimes the court backpedals into formalism. For instance, prior to the Supreme Court's decision in Harris v. Forklift Systems, Inc., 247 the Seventh Cir-cuit required proof in sex harassment cases that the harassment caused "anxiety and debilitation." 248 In another more recent exam-ple, the Seventh Circuit has shown some attraction to the so-called "same actor" inference, by which a court may infer that a deci-sionmaker who hired or promoted an employee in the first instance would not harbor a discriminatory animus against the same employee later on (at least over a short enough period). 249 But the tendency of such cut-and-dried rules in the Seventh Circuit, as this section has shown, is to eventually fall into decrepitude. Or, as the court itself once put it, the judges of the circuit may "flirt" with such a rule but ordinarily will not adopt it. 250

CONCLUSION

The Seventh Circuit, judging from its published opinions, has achieved a rough equivalence in its approach to employment discrimi-nation [P.112] cases. At the bottom line, the statistics reveal no significant difference in the reversal rates for plaintiffs and defendants. In gen-eral, the Seventh Circuit has left the door open wider than other cir-cuits at the prima facie stage, rejecting presumptions and rules that would weed cases out at an early stage. At the same time, the court has been hard on the merits at the summary judgment stage.

This study is but a modest first step toward an empirical approach to studying the work of the courts of appeals. Efforts to expand and refine this approach -- by adding more sophisticated variables, for instance -- could provide a far more useful basis for tracing the cur-rents of the law than the impressionistic method most of us now fol-low of reading the advance sheets. There are certainly other directions in which to take this research; four come immediately to mind.

1. This study confined itself solely to the Seventh Circuit, where the author regularly practices. It would be very useful to compare the Seventh Circuit's pattern of decisions with those of other circuits. (This was done only on an anecdotal basis above in section II. B.) It is widely assumed, at least by attorneys who regularly represent employ-ees, that the Fourth and Fifth Circuits have been the most hostile to plaintiffs in the recent past, while the Second and Ninth Circuits have been the most hospitable. Empirical research could confirm or refute this hallway talk.

2. This study omits any consideration of how district courts re-act to published courts of appeals decisions. The feedback between the two levels of the federal judiciary is worthy of study.

3. A more systemic examination would include a sample of the underlying briefs and records. Some plaintiffs' attorneys worry about a lack of fidelity by the Seventh Circuit to the facts in these appeals, and that their clients' stories are getting short shrift. The losing appel-lant naturally feels scorned, because rationally she wouldn't have taken the appeal if there were not at least some facts in her favor. And appellate judges whose only contact with the case is a cold record and a half-hour of oral argument -- if that -- will never catch every nu-ance of every case, as the attorneys who lived with the case for years would wish. Judges may even get facts wrong through sheer error, though perhaps not enough to warrant rehearing where the result would ultimately be the same. On the outer fringes, the case has even been made for a judicial craft that is not strictly bound by the record, which uses facts more like a pallet than a template. Even Justice Car-dozo [P.113] finessed the record now and again to support a legal outcome. 251 But we would take pause if a judge bent every record the same way in each case.

4. This study treats the various statutory causes of action as fun-gible. Another study might examine the differing appellate outcomes, if any, between different causes of action (e. g. age versus race discrim-ination) to see if the judges have a higher acceptance of some kinds of cases. There are some reports that juries are more generous in some kinds of cases than others, and judges are human, too; perhaps they are swayed by some of the same considerations as juries. There is some evidence in the case law that there are genuine differences. In 1996, for instance, there were five cases where courts rejected the plaintiffs' principal discrimination claims but allowed trials on retalia-tion claims. 252 Perhaps judges believe that retaliation really does hap-pen, or at least that it is a more plausible explanation for employer misbehavior than raw, irrational discrimination. [P.114]

APPENDIX: SEVENTH CIRCUIT EMPLOYMENT DISCRIMINATION CASES

  1. Timms v. Frank, 953 F. 2d 281 (7th Cir. 1992)
  2. Davidson v. Indiana-American Water Works, 953 F. 2d 1058 (7th Cir. 1992)
  3. Giacoletto v. Amax Zinc Co., 954 F. 2d 424 (7th Cir. 1992)
  4. Partee v. Metropolitan School District of Washington Town-ship, 954 F. 2d 454 (7th Cir. 1992)
  5. EEOC v. Gurnee Inns, Inc., 956 F. 2d 146 (7th Cir. 1992)
  6. Reise v. Board of Regents of the University of Wisconsin Sys-tem, 957 F. 2d 293 (7th Cir. 1992)
  7. Juarez v. Ameritech Mobile Communications, Inc., 957 F. 2d 317 (7th Cir. 1992)
  8. McCoy v. WGN Continental Broad. Co., 957 F. 2d 368 (7th Cir. 1992)
  9. Auriemma v. Rice, 957 F. 2d 397 (7th Cir. 1992)
  10. EEOC v. Board of Governors of State Colleges and Universi-ties, 957 F. 2d 424 (7th Cir. 1992)
  11. Smith v. BMI, Inc., 957 F. 2d 462 (7th Cir. 1992)
  12. EEOC v. Century Broad. Corp., 957 F. 2d 1446 (7th Cir. 1992)
  13. Tyson v. Jones & Laughlin Steel Corp., 958 F. 2d 756 (7th Cir. 1992)
  14. Castleman v. Acme Boot Co., 959 F. 2d 1417 (7th Cir. 1992)
  15. King v. General Elec. Co., 960 F. 2d 617 (7th Cir. 1992)
  16. Lindsey v. Baxter Healthcare Corp., 962 F. 2d 586 (7th Cir. 1992)
  17. Kizer v. Children's Learning Center, 962 F. 2d 608 (7th Cir. 1992)
  18. Mozee v. American Commercial Marine Serv. Co., 963 F. 2d 929 (7th Cir. 1992)
  19. Hamilton v. Komatsu Dresser Indus., Inc., 964 F. 2d 600 (7th Cir. 1992)
  20. Konowitz v. Schnadig Corp., 965 F. 2d 230 (7th Cir. 1992)
  21. Fiorenzo v. Nolan, 965 F. 2d 348 (7th Cir. 1992)
  22. Anderson v. Stauffer Chemical Co., 965 F. 2d 397 (7th Cir. 1992)
  23. Eddleman v. Switchcraft, Inc., 965 F. 2d 422 (7th Cir. 1992)
  24. Colosi v. Electri-Flex Co., 965 F. 2d 500 (7th Cir. 1992)
  25. Schultz v. Serfilco, Ltd., 965 F. 2d 516 (7th Cir. 1992)
  26. Luddington v. Indiana Bell Telephone Co., 966 F. 2d 225 (7th Cir. 1992) [P.115]
  27. Price v. Marshall Erdman & Assoc., 966 F. 2d 320 (7th Cir. 1992)
  28. Prochotsky v. Baker & McKenzie, 966 F. 2d 333 (7th Cir. 1992)
  29. Rush v. McDonald's Corp., 966 F. 2d 1104 (7th Cir. 1992)
  30. Taylor v. Western and Southern Life Ins. Co., 966 F. 2d 1188 (7th Cir. 1992)
  31. Hamilton v. Caterpillar, Inc., 966 F. 2d 1226 (7th Cir. 1992)
  32. Artis v. Hitachi Zosen Clearing, Inc., 967 F. 2d 1132 (7th Cir. 1992)
  33. Finnegan v. Trans World Airlines, Inc., 967 F. 2d 1161 (7th Cir. 1992)
  34. Hughes v. Derwinski, 967 F. 2d 1168 (7th Cir. 1992)
  35. McCann v. City of Chicago, 968 F. 2d 635 (7th Cir. 1992)
  36. Washington v. Lake County, 969 F. 2d 250 (7th Cir. 1992)
  37. Smith v. Great American Restaurants, Inc., 969 F. 2d 430 (7th Cir. 1992)
  38. Banas v. American Airlines, 969 F. 2d 477 (7th Cir. 1992)
  39. Selan v. Kiley, 969 F. 2d 560 (7th Cir. 1992)
  40. Daugherity v. Traylor Brothers, Inc., 970 F. 2d 348 (7th Cir. 1992)
  41. Reed v. Amax Coal Co., 971 F. 2d 1297 (7th Cir. 1992)
  42. Gustovich v. AT& T Communications, Inc., 972 F. 2d 845 (7th Cir. 1992)
  43. Snider v. Consolidation Coal Co., 973 F. 2d 555 (7th Cir. 1992)
  44. McKnight v. General Motors Corp., 973 F. 2d 1366 (7th Cir. 1992)
  45. Reidt v. County of Trempealeau, 975 F. 2d 1336 (7th Cir. 1992)
  46. Samuelson v. Durkee/ French/ Airwick, 976 F. 2d 1111 (7th Cir. 1992)
  47. Bell v. Purdue University, 975 F. 2d 422 (7th Cir. 1992)
  48. Pressley v. Haeger, 977 F. 2d 295 (7th Cir. 1992)
  49. Overton v. Reilly, 977 F. 2d 1190 (7th Cir. 1992)
  50. United States v. City of Chicago, 978 F. 2d 325 (7th Cir. 1992)
  51. Council 31, AFSCME v. Ward, 978 F. 2d 373 (7th Cir. 1992)
  52. Lever v. Northwestern University, 979 F. 2d 552 (7th Cir. 1992)
  53. Byrne v. Board of Education, 979 F. 2d 560 (7th Cir. 1992)
  54. Fisher v. Transco Services-Milwaukee, Inc., 979 F. 2d 1239 (7th Cir. 1992)
  55. McWright v. Alexander, 982 F. 2d 222 (7th Cir. 1992)
  56. Hudak v. Jepson of Illinois, 982 F. 2d 249 (7th Cir. 1992)
  57. United States v. Board of Education, Dist. 230, 983 F. 2d 790 (7th Cir. 1993) [P.116]
  58. O'Rourke v. Continental Cas. Co., 983 F. 2d 94 (7th Cir. 1993)
  59. Von Zuckerstein v. Argonne National Laboratory, 984 F. 2d 1467 (7th Cir. 1993)
  60. Heck v. City of Freeport, 985 F. 2d 305 (7th Cir. 1993)
  61. Kristufek v. Hussmann Foodservice Co., 985 F. 2d 364 (7th Cir. 1993)
  62. EEOC v. State of Illinois, 986 F. 2d 187 (7th Cir. 1993)
  63. Tobey v. Extel/ JWP, Inc., 985 F. 2d 330 (7th Cir. 1993)
  64. Gusman v. Unisys Corp., 986 F. 2d 1146 (7th Cir. 1993)
  65. Pack v. Marsh, 986 F. 2d 1155 (7th Cir. 1993)
  66. EEOC v. Consolidated Service Systems, 989 F. 2d 233 (7th Cir. 1993)
  67. Billish v. City of Chicago, 989 F. 2d 890 (7th Cir. 1993)
  68. Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F. 2d 333 (7th Cir. 1993)
  69. Bush v. Commonwealth Edison Co., 990 F. 2d 928 (7th Cir. 1993)
  70. Harriston v. Chicago Tribune Co., 992 F. 2d 697 (7th Cir. 1993)
  71. Farrand v. Lutheran Brotherhood, 993 F. 2d 1253 (7th Cir. 1993)
  72. Hong v. Children's Memorial Hosp., 993 F. 2d 1257 (7th Cir. 1993)
  73. Crady v. Liberty National Bank, 993 F. 2d 132 (7th Cir. 1993)
  74. EEOC v. Illinois Department of Employment Security, 995 F. 2d 106 (7th Cir. 1993)
  75. Eirhart v. Libbey-Owens-Ford Co., 996 F. 2d 837 (7th Cir. 1993)
  76. Eirhart v. Libbey-Owens-Ford Co., 996 F. 2d 846 (7th Cir. 1993)
  77. Townsend v. Indiana University, 995 F. 2d 691 (7th Cir. 1993)
  78. Herrmann v. Cencom Cable Associates, Inc., 999 F. 2d 223 (7th Cir. 1993)
  79. Partington v. Broyhill Furniture Industries, Inc., 999 F. 2d 269 (7th Cir. 1993)
  80. Wright v. Runyon, 2 F. 3d 214 (7th Cir. 1993)
  81. Monaco v. Fuddruckers, Inc., 1 F. 3d 658 (7th Cir. 1993)
  82. Sarsha v. Sears, Roebuck & Co., 3 F. 3d 1035 (7th Cir. 1993)
  83. Serlin v. Arthur Andersen & Co., 3 F. 3d 221 (7th Cir. 1993)
  84. Rennie v. Dalton, 3 F. 3d 1100 (7th Cir. 1993)
  85. Pilditch v. Board of Education of the City of Chicago, 3 F. 3d 1113 (7th Cir. 1993)
  86. Moskowitz v. Trustees of Purdue University, 5 F. 3d 279 (7th Cir. 1993)
  87. Mojica v. Gannett Co., 7 F. 3d 552 (7th Cir. 1993) (en banc) [P.117]
  88. Mayall v. Peabody Coal Co., 7 F. 3d 570 (7th Cir. 1993)
  89. Rogers v. Sugar Tree Products, Inc., 7 F. 3d 577 (7th Cir. 1993)
  90. Unterreiner v. Volkswagon of America, Inc., 8 F. 3d 1206 (7th Cir. 1993)
  91. Hayden v. La-Z-Boy Chair Co., 9 F. 3d 617 (7th Cir. 1993)
  92. McNabola v. Chicago Transit Authority, 10 F. 3d 501 (7th Cir. 1993)
  93. Saxton v. American Telephone and Telegraph Co., 10 F. 3d 526 (7th Cir. 1993)
  94. EEOC v. Harris Chernin Inc., 10 F. 3d 1286 (7th Cir. 1993)
  95. Oberg v. Allied Van Lines, Inc., 11 F. 3d 679 (7th Cir. 1993)
  96. Oxman v. WLS-TV, 12 F. 3d 652 (7th Cir. 1993)
  97. Rodgers v. Western-Southern Life Ins. Co., 12 F. 3d 668 (7th Cir. 1993)
  98. Anderson v. Baxter Healthcare Corp., 13 F. 3d 1120 (7th Cir. 1994)
  99. Lenoir v. Roll Coater, Inc., 13 F. 3d 1130 (7th Cir. 1994)
  100. Deveraux v. City of Chicago, 14 F. 3d 328 (7th Cir. 1994)
  101. Darnell v. Target Stores, 16 F. 3d 174 (7th Cir. 1994)
  102. Chambers v. American Trans Air, Inc., 17 F. 3d 998 (7th Cir. 1994)
  103. Burick v. Edward Rose & Sons, 18 F. 3d 514 (7th Cir. 1994)
  104. Randle v. Bentsen, 19 F. 3d 371 (7th Cir. 1994)
  105. Hughes v. Brown, 20 F. 3d 745 (7th Cir. 1994)
  106. Troupe v. May Department Stores Co., 20 F. 3d 734 (7th Cir. 1994)
  107. Kresock v. Bankers Trust Co., 21 F. 3d 176 (7th Cir. 1994)
  108. Young v. Northern Illinois Conference of United Methodist Church, 21 F. 3d 184 (7th Cir. 1994)
  109. Fedro v. Reno, 21 F. 3d 1391 (7th Cir. 1994)
  110. Kirk v. Federal Property Management Corp., 22 F. 3d 135 (7th Cir. 1994)
  111. Kralman v. Illinois Department of Veterans Affairs, 23 F. 3d 150 (7th Cir. 1994)
  112. Robinson v. PPG Industries, Inc., 23 F. 3d 1159 (7th Cir. 1994)
  113. Roche v. City of Chicago, 24 F. 3d 882 (7th Cir. 1994)
  114. Loyd v. Phillips Bros., Inc., 25 F. 3d 518 (7th Cir. 1994)
  115. Fleming v. United States Postal Service, 27 F. 3d 259 (7th Cir. 1994)
  116. EEOC v. Elgin Teachers Assoc., 27 F. 3d 292 (7th Cir. 1994)
  117. Brill v. McDonald's Corp., 28 F. 3d 633 (7th Cir. 1994) [P.118]
  118. Dey v. Colt Construction & Development Co., 28 F. 3d 1446 (7th Cir. 1994)
  119. Watson v. Amedco Steel, Inc., 29 F. 3d 274 (7th Cir. 1994)
  120. EEOC v. Consolidated Service Systems, 30 F. 3d 58 (7th Cir. 1994)
  121. Flaherty v. Gas Research Institute, 31 F. 3d 451 (7th Cir. 1994)
  122. White v. Bentson, 31 F. 3d 474 (7th Cir. 1994)
  123. Cheek v. Western and Southern Life Ins. Co., 31 F. 3d 497 (7th Cir. 1994)
  124. Timm v. Mead Corp., 32 F. 3d 273 (7th Cir. 1994)
  125. Carr v. Allison Gas Turbine Division., General Motors Corp., 32 F. 3d 1007 (7th Cir. 1994)
  126. Vore v. Indiana Bell Telephone Co., 32 F. 3d 1161 (7th Cir. 1994)
  127. Brye v. Brakebush, 32 F. 3d 1179 (7th Cir. 1994)
  128. Adler v. Espy, 35 F. 3d 263 (7th Cir. 1994)
  129. Brenner v. Brown, 36 F. 3d 18 (7th Cir. 1994)
  130. Schultz v. General Electric Capital Corp., 37 F. 3d 329 (7th Cir. 1994)
  131. Molnar v. United Technologies Otis Elevator, 37 F. 3d 335 (7th Cir. 1994)
  132. Futrell v. J. I. Case, 38 F. 3d 342 (7th Cir. 1994)
  133. EEOC v. O & G Spring & Wire Forms Specialty Co., 38 F. 3d 872 (7th Cir. 1994)
  134. EEOC v. G-K-G Inc., 39 F. 3d 740 (7th Cir. 1994)
  135. Alexander v. Gerhardt Enterprises, Inc., 40 F. 3d 187 (7th Cir. 1994)
  136. Dombeck v. Milwaukee Valve Co., 40 F. 3d 230 (7th Cir. 1994)
  137. Bristow v. Drake Street, Inc., 41 F. 3d 345 (7th Cir. 1994)
  138. EEOC v. Francis W. Parker School, 41 F. 3d 1073 (7th Cir. 1994)
  139. Downes v. Volkswagon of America, Inc., 41 F. 3d 1132 (7th Cir. 1994)
  140. Robbins v. Bentsen, 41 F. 3d 1195 (7th Cir. 1994)
  141. Cliff v. Board of School Commissioners, 42 F. 3d 403 (7th Cir. 1994)
  142. Courtney v. Biosound, Inc., 42 F. 3d 414 (7th Cir. 1994)
  143. Doe v. R. R. Donnelley & Sons, 42 F. 3d 439 (7th Cir. 1994)
  144. Hutchison v. Amateur Electronic Supply, Inc., 42 F. 3d 1037 (7th Cir. 1994)
  145. Jones v. Merchants National Bank & Trust Co., 42 F. 3d 1054 (7th Cir. 1994) [P.119]
  146. Chakonas v. City of Chicago, 42 F. 3d 1132 (7th Cir. 1994)
  147. Rand v. CF Industries, Inc., 42 F. 3d 1139 (7th Cir. 1994)
  148. Gehring v. Case Corp., 43 F. 3d 340 (7th Cir. 1994)
  149. Vande Zande v. State of Wisconsin Department of Administra-tion, 44 F. 3d 538 (7th Cir. 1995)
  150. Harper v. Godfrey Co., 45 F. 3d 143 (7th Cir. 1995)
  151. Bisciglia v. Kenosha Unified School Dist. No. 1, 45 F. 3d 223 (7th Cir. 1995)
  152. Koelsch v. Beltone Electronics Corp., 46 F. 3d 705 (7th Cir. 1995)
  153. Cherry v. American Telephone and Telegraph, 47 F. 3d 225 (7th Cir. 1995)
  154. Lonsdorf v. Seefeldt, 47 F. 3d 893 (7th Cir. 1995)
  155. Johnson v. Runyon, 47 F. 3d 911 (7th Cir. 1995)
  156. Roper v. Peabody Coal Co., 47 F. 3d 925 (7th Cir. 1995)
  157. Hedberg v. Indiana Bell Telephone Co., 47 F. 3d 928 (7th Cir. 1995)
  158. Brzostowski v. Laidlaw Waste Systems, Inc., 49 F. 3d 337 (7th Cir. 1995)
  159. EEOC v. Laborers' International Union, 49 F. 3d 304 (7th Cir. 1995)
  160. Baskerville v. Culligan International Co., 50 F. 3d 428 (7th Cir. 1995)
  161. Stoner v. Wisconsin Department of Agriculture, Trade and Consumer Protection, 50 F. 3d 481 (7th Cir. 1995)
  162. Russell v. Acme-Evans Co., 51 F. 3d 64 (7th Cir. 1995)
  163. Hamm v. Runyon, 51 F. 3d 721 (7th Cir. 1995)
  164. Russell v. Delco Remy Division of General Motors Corp., 51 F. 3d 746 (7th Cir. 1995)
  165. Ashkin v. Time Warner Cable Corp., 52 F. 3d 140 (7th Cir. 1995)
  166. DeLuca v. Winer Industries, Inc., 53 F. 3d 793 (7th Cir. 1995)
  167. Luckett v. Rent-A-Center, Inc., 53 F. 3d 871 (7th Cir. 1995)
  168. Ammerman v. Sween, 54 F. 3d 423 (7th Cir. 1995)
  169. EEOC v. AIC Security Investigations, Ltd., 55 F. 3d 1276 (7th Cir. 1995)
  170. Sanders v. Venture Stores, Inc., 56 F. 3d 771 (7th Cir. 1995)
  171. Roth v. Lutheran General Hosp., 57 F. 3d 1446 (7th Cir. 1995)
  172. Quinones v. City of Evanston, 58 F. 3d 275 (7th Cir. 1995)
  173. Graehling v. Village of Lombard, 58 F. 3d 295 (7th Cir. 1995)
  174. Sirvidas v. Commonwealth Edison Co., 60 F. 3d 375 (7th Cir. 1995) [P.120]
  175. Sample v. Aldi Inc., 61 F. 3d 544 (7th Cir. 1995)
  176. Dunning v. Simmons Airlines, Inc., 62 F. 3d 863 (7th Cir. 1995)
  177. EEOC v. Quad/ Graphics Inc., 63 F. 3d 642 (7th Cir. 1995)
  178. Despears v. Milwaukee County, 63 F. 3d 635 (7th Cir. 1995)
  179. Thelen v. Marc's Big Boy Corp., 64 F. 3d 264 (7th Cir. 1995)
  180. Siefken v. Village of Arlington Heights, 65 F. 3d 664 (7th Cir. 1995)
  181. Pierce v. Atchison, Topeka and Santa Fe Ry. Co., 65 F. 3d 562 (7th Cir. 1995)
  182. Collier v. Budd Co., 66 F. 3d 886 (7th Cir. 1995)
  183. Perdomo v. Browner, 67 F. 3d 140 (7th Cir. 1995)
  184. Hill v. Burrell Communications Group, Inc., 67 F. 3d 665 (7th Cir. 1995)
  185. EEOC v. State of Illinois, 69 F. 3d 167 (7th Cir. 1995)
  186. Umpleby v. Potter & Brumfield, Inc., 69 F. 3d 209 (7th Cir. 1995)
  187. Taylor v. Canteen Corp., 69 F. 3d 773 (7th Cir. 1995)
  188. Hennessy v. Penril Datacomm Networks, Inc., 69 F. 3d 1344 (7th Cir. 1995)
  189. Tyler v. Runyon, 70 F. 3d 458 (7th Cir. 1995)
  190. Johnson v. University of Wisconsin-Eau Claire, 70 F. 3d 469 (7th Cir. 1995)
  191. Gadsby v. Norwalk Furniture Corp., 71 F. 3d 1324 (7th Cir. 1995)
  192. Matthews v. Rollins Hudig Hall Co., 72 F. 3d 50 (7th Cir. 1995)
  193. Williams v. Banning, 72 F. 3d 552 (7th Cir. 1995)
  194. Americanos v. Carter, 74 F. 3d 138 (7th Cir. 1996)
  195. Smith v. Cook County, 74 F. 3d 829 (7th Cir. 1996)
  196. Beck v. University of Wisconsin, 75 F. 3d 1130 (7th Cir. 1996)
  197. Doll v. Brown, 75 F. 3d 1200 (7th Cir. 1996)
  198. Clay v. Fort Wayne Community Schools, 76 F. 3d 873 (7th Cir. 1996)
  199. Wolf v. Buss (America) Inc., 77 F. 3d 914 (7th Cir. 1996)
  200. Miller v. Runyon, 77 F. 3d 189 (7th Cir. 1996)
  201. Bratton v. Roadway Package System, Inc., 77 F. 3d 168 (7th Cir. 1996)
  202. EEOC v. Our Lady of Resurrection Med. Center, 77 F. 3d 145 (7th Cir. 1996)
  203. Brew-Parrish v. Board of Trustees of Southern Illinois Univer-sity, 78 F. 3d 320 (7th Cir. 1996)
  204. Kuhn v. Ball State University, 78 F. 3d 330 (7th Cir. 1996) [P.121]
  205. Galloway v. General Motors Service Parts Oper., 78 F. 3d 1164 (7th Cir. 1996)
  206. Kennedy v. Chemical Waste Management, Inc., 79 F. 3d 49 (7th Cir. 1996)
  207. Melendez v. Illinois Bell Telephone Co., 79 F. 3d 661 (7th Cir. 1996)
  208. Weisbrot v. Medical College of Wisconsin, 79 F. 3d 677 (7th Cir. 1996)
  209. Kusak v. Ameritech Information Systems, Inc., 80 F. 3d 199 (7th Cir. 1996)
  210. Carson v. Bethlehem Steel Corp., 82 F. 3d 157 (7th Cir. 1996)
  211. Fuka v. Thomson Consumer Electronics, 82 F. 3d 1397 (7th Cir. 1996)
  212. Mills v. First Federal Sav. & Loan Ass'n, 83 F. 3d 833 (7th Cir. 1996)
  213. DeVito v. Chicago Park Dist., 83 F. 3d 878 (7th Cir. 1996)
  214. McDonnell v. Cisneros, 84 F. 3d 256 (7th Cir. 1996)
  215. Piraino v. International Orientation Resources, Inc., 84 F. 3d 270 (7th Cir. 1996)
  216. Williams v. Bristol-Myers Squibb, Co., 85 F. 3d 270 (7th Cir. 1996)
  217. Bohac v. West, 85 F. 3d 306 (7th Cir. 1996)
  218. Stewart v. County of Brown, 86 F. 3d 107 (7th Cir. 1996)
  219. EEOC v. Chicago Club, 86 F. 3d 1423 (7th Cir. 1996)
  220. Turgeon v. Premark Int'l Inc., 87 F. 3d 218 (7th Cir. 1996)
  221. Veprinsky v. Fluor Daniel, Inc., 87 F. 3d 881 (7th Cir. 1996)
  222. Wittmer v. Peters, 87 F. 3d 916 (7th Cir. 1996)
  223. Adler v. Glickman, 87 F. 3d 956 (7th Cir. 1996)
  224. Ost v. West Suburban Travelers Limousine, Inc., 88 F. 3d 435 (7th Cir. 1996)
  225. Dranchak v. Akzo Nobel Inc., 88 F. 3d 457 (7th Cir. 1996)
  226. Vitug v. Multistate Tax Commission, 88 F. 3d 506 (7th Cir. 1996)
  227. Schmidt v. Methodist Hosp. of Indiana, Inc., 89 F. 3d 342 (7th Cir. 1996)
  228. Stringel v. Methodist Hospital of Indiana Inc., 89 F. 3d 415 (7th Cir. 1996)
  229. Smart v. Ball State University, 89 F. 3d 437 (7th Cir. 1996)
  230. Rabinovitz v. Pena, 89 F. 3d 482 (7th Cir. 1996)
  231. Kratville v. Runyon, 90 F. 3d 195 (7th Cir. 1996)
  232. Waid v. Merrill Area Public Schools, 91 F. 3d 857 (7th Cir. 1996)
  233. Johnson v. City of Fort Wayne, Ind., 91 F. 3d 922 (7th Cir. 1996) [P.122]
  234. Homeyer v. Stanley Tulchin Assoc. Inc., 91 F. 3d 959 (7th Cir. 1996)
  235. EEOC v. Harvey L. Walner & Assoc., 91 F. 3d 963 (7th Cir. 1996)
  236. Miranda v. Wisconsin Power & Light Co., 91 F. 3d 1011 (7th Cir. 1996)
  237. Whalen v. Rubin, 91 F. 3d 1041 (7th Cir. 1996)
  238. McKenzie v. Illinois Department of Transportation, 92 F. 3d 473 (7th Cir. 1996)
  239. Soignier v. American Board of Plastic Surgery, 92 F. 3d 547 (7th Cir. 1996)
  240. Bombard v. Fort Wayne Newspapers, Inc., 92 F. 3d 560 (7th Cir. 1996)
  241. Helland v. South Bend Community School Corp., 93 F. 2d 327 (7th Cir. 1996)
  242. Knox v. State of Indiana, 93 F. 3d 1327 (7th Cir. 1996)
  243. Majeske v. Fraternal Order of Police, 94 F. 3d 307 (7th Cir. 1996)
  244. EEOC V. United Parcel Service, 94 F. 3d 314 (7th Cir. 1996)
  245. Wohl v. Spectrum Mfg. Inc., 94 F. 3d 353 (7th Cir. 1996)
  246. Eckles v. Consolidated Rail Corp., 94 F. 3d 1041 (7th Cir. 1996)
  247. Ortiz v. John O. Butler Co., 94 F. 3d 1121 (7th Cir. 1996)
  248. Gile v. United Airlines Inc., 95 F. 3d 492 (7th Cir. 1996)
  249. Emmel v. Coca-Cola Bottling Co., 95 F. 3d 627 (7th Cir. 1996)
  250. Wagner v. The NutraSweet Co., 95 F. 3d 527 (7th Cir. 1996)
  251. Noreuil v. Peabody Coal Co., 96 F. 3d 254 (7th Cir. 1996)
  252. Bryson v. Chicago State University, 96 F. 3d 912 (7th Cir. 1996)
  253. Zimmerman v. Cook County Sheriffs Dep't, 96 F. 3d 1017 (7th Cir. l996)
  254. EEOC v. CNA Insurance Cos., 96 F. 3d 1039 (7th Cir. 1996)
  255. Cheek v. Peabody Coal Co., 97 F. 3d 200 (7th Cir. 1996)
  256. Kelly v. Municipal Courts of Marion County, 97 F. 3d 902 (7th Cir. 1996)
  257. Feliberty v. Kemper Corp., 98 F. 3d 274 (7th Cir. 1996)
  258. Testerman v. EDS Technical Products Corp., 98 F. 3d 297 (7th Cir. 1996)
  259. Geier v. Medtronic, Inc., 99 F. 3d 238 (7th Cir. 1996)
  260. Denisi v. Dominick's Finer Foods, Inc., 99 F. 3d 860 (7th Cir. 1996)
  261. Bultemeyer v. Fort Wayne Community Schools, 100 F. 3d 1281 (7th Cir. 1996) [P.123]
  262. Alexander v. Rush North Shore Medical Center, 101 F. 3d 487 (7th Cir. 1996)
  263. Pasqua v. Metropolitan Life Insurance Co., 101 F. 3d 514 (7th Cir. 1996)
  264. Weiler v. Household Finance Corp., 101 F. 3d 519 (7th Cir. 1996)
  265. EEOC v. Mitsubishi Motor Mfg. of America, Inc., 102 F. 3d 869 (7th Cir. 1996)
  266. Cochrum v. Old Ben Coal Co., 102 F. 3d 908 (7th Cir. 1996)
  267. Merriweather v. Family Dollar Stores of Indiana Inc., 103 F. 3d 576 (7th Cir. 1996)

FOOTNOTES

* Partner, Meites, Frackman, Mulder & Burger, Chicago, Illinois. B. A., 1983, University of Chicago; J. D., 1986, DePaul University College of Law. The author thanks his partners for their support of this project and his family Ī Susan Carton, Leo Carton Mollica and Vincent Carton Mollica Ī for their love and patience during its completion. Thanks go also to Stewart J. Schwab and Thomas R. Meites, who provided many helpful comments on earlier drafts of this article; Len Cupingood, who aided in the statistical analysis; and to our firm's paralegal, Susan Pracejus who helped compile the statistical data and tables. The author worked on the following cases in the dataset reviewed in this article: Wagner v. NutraSweet Co., 95 F. 3d 527 (7th Cir. 1996); Eirhart v. Libbey-Owens-Ford Co., 996 F. 2d 846 (7th Cir. 1993); Eirhart v. Libbey-Owens-Ford Co., 996 F. 2d 837 (7th Cir. 1993); Finnegan v. Trans World Airlines, Inc., 967 F. 2d 1161 (7th Cir. 1992).

1. RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 336 (1996) (hereinafter FEDERAL COURTS).

2. THOMAS E. BAKER, RATIONING JUSTICE ON APPEAL: THE PROBLEMS OF THE U. S. COURTS OF APPEALS 16 (1994) (hereinafter RATIONING JUSTICE).

3. The Seventh Circuit has referred to this deference as an "interest," rather than a rule. United States v. Hill, 48 F. 3d 228, 232 (7th Cir. 1995). See also Colby v. J. C. Penney Co., 811 F. 2d 1119, 1123 (7th Cir. 1987) (deference to other courts not automatic because "the parties in cases before us are entitled to our independent judgment"). Section II. B discusses a number of recent circuit splits in the employment discrimination area. The independent circuit system in place today, of course, was not inevitable. A statute, rule or convention could have required that every lower federal court be bound by the first circuit (or first three circuits) that decided a particular issue. See FEDERAL COURTS, supra note 1, at 381. This would resemble the rule, followed by all of the circuits today, that a three-judge panel may not overrule a decision of a former panel in the same circuit. See, e. g., 7th Cir. R. 40( e). The rule prevents intracircuit con-flicts and fosters judicial collegiality. Perhaps it would defy human nature as we know it for a court of Article III judges to subordinate their power and judgment to decide an issue of law solely because another court fortuitously reached it first.

4. Public Employees Retirement Sys. of Oh. v. Betts, 492 U. S. 158 (1989); Independent Fed. of Flight Attendants v. Zipes, 491 U. S. 754 (1989); Patterson v. McLean Credit Union, 491 U. S. 164 (1989); Lorance v. AT & T Technologies, Inc., 490 U. S. 900 (1989); Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989); Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). See also Martin v. Wilks, 490 U. S. 755 (1989).

5. P. L. 102-166. See section 3 of the Act, with a finding that one purpose of the Act was to "respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination." See also Landgraf v. USI Film Prods., 511 U. S. 244, 250-51 (1994) (inventorying the prior case law af-fected by the new Act).

6. In the 1993 term, the only employment discrimination cases were the duo of Landgraf v. USI Film Prods., 511 U. S. 244 (1994) and Rivers v. Roadway Express, Inc., 511 U. S. 298 (1994), holding that the Civil Rights Act of 1991 applied prospectively only, and Harris v. Forklift Sys., Inc., 510 U. S. 17 (1993), ruling that a plaintiff need not demonstrate serious psychological harm to prove sex harassment under Title VII. In the 1994 term, the solitary case was McKennon v. Nashville Banner Publ'g Co., 513 U. S. 352 (1995), which greatly limited the reach of the so-called "after-acquired evidence" rule in an ADEA case. In the 1995 term, there was only O'Connor v. Consolidated Coin Caterers Corp., 116 S. Ct. 1307 (1996), holding that an ADEA plaintiff was not required to prove as part of a prima facie case that she was replaced by a person under age 40. In the 1996 term, there were EEOC v. Metro. Educ. Enter., Inc., 117 S. Ct. 660 (1997) setting the rules for counting the "employees" of an enterprise for the jurisdictional mini-mum of 15 under Title VII and Robinson v. Shell Oil Co., 117 S. Ct. 843 (1997), deciding that post-termination retaliation is actionable under Title VII. (We disregard here cases that touch upon related concerns, e. g. labor relations, taxation of remedies, punitive damages, affirmative action programs for public contractors). Except for Landgraf-Rivers, these cases each resolved splits between the circuits and each was decided unanimously.

7. Mr. Casaubon's ill-starred encyclopedia in GEORGE ELIOT, MIDDLEMARCH, Bk. I, Ch. VII at 41 (Norton 1977). He died before completing it.

8. The author developed the dataset over several years by reviewing all of the Seventh Circuit's opinions published in West Publishing's Federal Reporter and culling the cases meeting the definition set forth above. The author also reviewed the BNA's Fair Employment Practices Reporter and the Seventh Circuit's PACER electronic bulletin board as a backup against acci-dental exclusion of relevant caselaw.

9. 42 U. S. C. ¦¦ 2000e-2000e-17 (1994).

10. 29 U. S. C. ¦¦ 621-634 (1994).

11. 29 U. S. C. ¦ 206( d) (1994).

12. 29 U. S. C. ¦¦ 791, 794 (1994).

13. 42 U. S. C. ¦¦ 12101-12213 (1994).

14. 42 U. S. C. ¦¦ 1981, 1983 (1994). The only section 1983 cases reviewed here are those involving employment discrimination.

15. See, e. g., EEOC v. Quad/ Graphics, Inc., 63 F. 3d 642 (7th Cir. 1995) (action to enforce subpoena); EEOC v. Consolidated Serv. Sys., 30 F. 3d 58 (7th Cir. 1994) (holding that Equal Access to Justice Act does not apply against EEOC in Title VII case); EEOC v. Illinois Dep't of Employment Sec., 995 F. 2d 106 (7th Cir. 1993) (enforcement of administrative subpoena); EEOC v. Gurnee Inns, Inc., 956 F. 2d 146 (7th Cir. 1992) (post-judgment collection action).

16. For recent examples, see, e. g., Board of County Comm'rs v. Umbehr, 116 S. Ct. 2342 (1996) and O'Hare Truck Serv., Inc. v. City of Northlake, 116 S. Ct. 2353 (1996).

17. Ellerth v. Burlington Indus., Inc., 102 F. 3d 848 (7th Cir. 1996), vacated for rehearing en banc, 70 F. E. P. Cases (BNA) 1810 (7th Cir. 1997), aff'd in part & rev'd in part, slip op., No. 96-1361 (7th Cir. Aug. 12, 1997) (en banc); EEOC v. Ilona of Hungary, Inc., 97 F. 3d 204 (7th Cir. 1996), vacated and remanded on rehearing, 108 F. 3d 1569 (7th Cir. 1997); EEOC v. Metro. Educ. Enters., Inc., 60 F. 3d 1225 (7th Cir. 1995), rev'd, 117 S. Ct. 660 (1997).

18. See, e. g., Matos v. Richard A. Nellis, Inc., 101 F. 3d 1193 (7th Cir. 1996) (district court had subject matter jurisdiction over collection of Title VII judgment); Neukirchen v. Wood County Head Start, Inc., 53 F. 3d 809 (7th Cir. 1995) (successful ADEA plaintiff may not execute on federal funds for Head Start program to satisfy judgment); Williams-Guice v. Board of Educ., 45 F. 3d 161 (7th Cir. 1995) (complaint not timely served after district court's denial of in forma pauperis petition); Otis v. City of Chicago, 29 F. 3d 1159 (7th Cir. 1994) (en banc) (order held final for appellate jurisdiction purpose, despite that district court did not enter Rule 58 order); Nelson v. City Colleges of Chicago, 962 F. 2d 754 (7th Cir. 1992) (denial of Rule 60 motion to reinstate affirmed where plaintiff's counsel defaulted by failing to respond to summary judgment or to inform plaintiff of motion).

19. The rule provides that "[ a] published opinion will be filed when the decision

    (i) establishes a new, or changes an existing rule of law;
    (ii) involves an issue of continuing public interest;
    (iii) criticizes or questions existing law;
    (iv) constitutes a significant and non-duplicative contribution to legal literature
      (A) by a historical review of the law,
      (B) by describing legislative history, or
      (C) by resolving or creating a conflict in the law;
    (v) reverses a judgment or denies enforcement of an order when the lower court or agency has published an opinion supporting the judgment or order; or
    (vi) is pursuant to an order of remand from the Supreme Court and is not rendered merely in ministerial obedience to specific directions of that Court.

    20. This number derives from a search done in Westlaw's Seventh Circuit database using the following terms: (ADA "TITLE VII" ADEA "REHABILITATION ACT" "SECTION 1981") AND DATE (AFTER 1/ 1/ 92 AND BEFORE 1/ 1/ 97) AND UNPUBLISHED.

    21. Judge Frank M. Coffin of the First Circuit describes per curium orders as "brief opin-ion[ s] applying well-known law in a routine way to run-of-the-mill facts." FRANK COFFIN, THE WAYS OF A JUDGE: REFLECTIONS FROM THE FEDERAL APPELLATE BENCH 137 (1980). This description aptly fits the Seventh Circuit's unpublished opinions. There are exceptions. See, e. g., Rooks v. Girl Scouts of Chicago, 95 F. 3d 1154 (7th Cir. 1996); Wittwer v. Maclean Hunter Pub. Co., 73 F. 3d 365 (7th Cir. 1995) (thorough review of plaintiff's ADEA claim); Richards v. Gen-eral Servs. Admin., 72 F. 3d 132 (7th Cir. 1995), cert. denied, 117 S. Ct. 243 (1996) (dissent by Judge Ripple from affirmance of grant of motion to dismiss).

    22. See, e. g., White v. St. Francis Hosp. & Health Ctr., 91 F. 3d 147 (7th Cir. 1996) (counsel's failure to appear at oral argument); Beasley v. Indiana Bell Tel. Co., 79 F. 3d 1160 (7th Cir. 1996) (waiver of apparently key arguments on appeal); Whitehead v. A. M. Int'l, Inc., 99 F. 3d 1142 (7th Cir. 1996) (affirming dismissal by district court for failure to prosecute).

    23. This is not to overlook the controversy over the use of unpublished opinions by the federal courts of appeals. Recent literature includes RATIONING JUSTICE, supra note 2, at 121-35 (critical of practice); FEDERAL COURTS, supra note 1, at 162-75 (questioning whether unpub-lished opinions actually conserve judicial effort); Martha J. Dragich, Will the Federal Courts of Appeals Perish If They Publish? Or Does the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat, 44 AM. U. L. REV. 757 (1995) (rhetorical title question says it all); Elizabeth M. Horton, Selective Publication and the Authority of Precedent in the United States Courts of Appeals, 42 U. C. L. A. L. REV. 1691 (1995) (approving practice with reser-vations). Moreover, empirical researchers have observed that the conventional focus on pub-lished appellate opinions can distort the study of actual patterns of litigation, such as the volume and nature of federal caseloads. Peter Siegelman & John J. Donohue III, Studying the Iceberg From Its Tip: A Comparison of Published and Unpublished Employment Discrimination Cases, 24 LAW & SOCIETY REV. 1134 (1990). Theodore Eisenberg & Stewart J. Schwab, What Shapes Perceptions of the Federal Court System, 56 U. CHI. L. REV. 501 (1989). This article seeks not especially to comment on the flow of litigation, but rather on the development of the law on one appellate bench, about which the published opinions are the best primary evidence.

    24. Employee Retirement Income Security Act, 29 U. S. C. ¦¦ 1001-1461 (1994).

    25. Each of these categories was ascertainable from the face of the opinion. This study disregards certain obvious, but highly subjective variables out of necessity. For instance, there was no way to tell from the opinions alone about the competency of the attorneys or the close-ness of the case. These factors demand a different kind of study (interviewing the attorneys, reading the records and work product, etc.).

    26. 3 F. 3d 1035 (7th Cir. 1993).

    27. See also McDonnell v. Cisneros, 84 F. 3d 256 (7th Cir. 1996) (various alternative claims remanded back to district court on appeal of Rule 12( b)( 6) dismissal); Dey v. Colt Constr. & Dev. Co., 28 F. 3d 1446 (7th Cir. 1994) (summary judgment on sex harassment and retaliation claims reversed, but summary judgment on Equal Pay Act affirmed); Loyd v. Phillips Bros., Inc., 25 F. 3d 518 (7th Cir. 1994) (reversing summary judgment on non-promotion claim, but affirming related Equal Pay Act summary judgment); United States v. Board of Educ., Dist. 230, 983 F. 2d 790 (7th Cir. 1993) (striking down substantial part of maternity leave policy); Hughes v. Derwin-ski, 967 F. 2d 1168 (7th Cir. 1992) (summary judgment reversed on race and sex claims, affirmed on retaliation).

    28. In fact, white plaintiffs lost most of their appeals. In the five year study period, there have been thirteen such cases -- white plaintiffs won two (McNabola v. Chicago Transit Auth., 10 F. 3d 501 (7th Cir. 1993); Billish v. City of Chicago, 989 F. 2d 890 (7th Cir.) (en banc), cert. denied, 510 U. S. 908 (1993)) and lost eleven (Majeske v. Fraternal Order of Police, 94 F. 3d 307 (7th Cir. 1996); Whalen v. Rubin, 91 F. 3d 1041 (7th Cir. 1996); Wittmer v. Peters, 87 F. 3d 916 (7th Cir. 1996), cert. denied, 117 S. Ct. 949 (1996); Carson v. Bethlehem Steel Corp., 82 F. 3d 157 (7th Cir. 1996); Americanos v. Carter, 74 F. 3d 138 (7th Cir. 1996), cert. denied, 116 S. Ct. 1853 (1996); Hill v. Burrell Comm. Group, Inc., 67 F. 3d 665 (7th Cir. 1995); Vore v. Indiana Bell Tel. Co., 32 F. 3d 1161 (7th Cir. 1994); Pilditch v. Board of Educ. of the City of Chicago, 3 F. 3d 1113 (7th Cir. 1993), cert. denied, 510 U. S. 1116 (1994); Auriemma v. Rice, 957 F. 2d 397 (7th Cir. 1992); Reise v. Board of Regents of the Univ. of Wisc. Sys., 957 F. 2d 293 (7th Cir. 1992)).

    29. A study of the Seventh Circuit's appeals over the period 1982-87 revealed that, overall, appellants won 27.3% of the time, with a 26.1% rate for appeals classified as "Jobs-Civil Rights." Daniel Kessler, Thomas R. Meites, & Geoffrey Miller, Explaining Deviations from the Fifty Per-cent Rule: A Multimodal Approach to the Selection of Cases for Litigation, 25 J. OF LEGAL STUDIES 233, 250-52 (1996). Thomas Baker cites a 25% historical reversal figure in his study. RATIONING JUSTICE, supra note 2, at 26.

    30. The data in Table 1 were analyzed using a chi-square test to assess the statistical signifi-cance of the difference in the reversal rates. Such a test is appropriate to analyze a dichotomous variable (such as wins versus losses here) and is considered accurate when the expected value of each element is at least five, which it is here. DAVID W. BARNES AND JOHN M. CONLEY, STATIS-TICAL EVIDENCE IN LITIGATION, CH. 5 (1986). Given a mean reversal rate of 22.85% for all parties in all reported decisions, the chi-square value was calculated as 0.0251, which significance value (p-value) is close to 0.88. In other words, the probability that the variance between the reversal rates is the product of chance is close to 88%.

    31. Looking at the database of the 167 unpublished decisions (see note 20), there were 21 trial appeals, of which only four were taken by defendant. This higher incidence of unpublished plaintiffs' appeals may reflect a publication bias against reporting trial appeals in which defend-ants' judgments are affirmed. Factoring in the unpublished opinions, we find 43 appeals by de-fendants, 45 by plaintiffs. Of the four defendant unpublished appeals located, incidentally, one resulted in a reversal. Marcing v. Fluor Daniel Co., 66 F. E. P. Cases (BNA) 1120 (7th Cir. 1994) (district court erred in applying mitigation defense).

    32. While again observing that this article concentrates only on published opinions, subject to possible selection bias and publication bias, the reader will note that plaintiffs prevailed most often in trials before juries while defendants tended to do better in bench trials. A study of trial results in federal civil cases (using a 1970-1989 database) found that in the category "Civil Rights-Jobs," plaintiffs had a 39% win rate before juries, but only a 20% win rate before judges. Kevin M. Clermont & Theodore Eisenberg, Trial By Jury or Judge: Transcending Empiricism, 77 CORNELL L. REV. 1124, 1175 app. A (1992). The authors noted that because this category was dominated by cases under Title VII, which at the time did not allow jury trials, they could not reliably draw any conclusions about the relative difficulty of plaintiffs prevailing before juries and judges. Id. at 1135.

    33. Kusak v. Ameritech Info. Sys., Inc., 80 F. 3d 199 (7th Cir. 1996); Baskerville v. Culligan Int'l Co., 50 F. 3d 428 (7th Cir. 1995); Pilditch v. Board of Educ. of the City of Chicago, 3 F. 3d 1113 (7th Cir. 1993), cert. denied, 510 U. S. 1116 (1994); King v. General Elec. Co., 960 F. 2d 617 (7th Cir. 1992).

    34. Umpleby v. Potter & Brumfield, Inc., 69 F. 3d 209 (7th Cir. 1995) (instruction issue); Dombeck v. Milwaukee Valve Co., 40 F. 3d 230 (7th Cir. 1994) (tossing out jury verdict because Civil Rights Act of 1991 was held non-retroactive); Mojica v. Gannett Co., Inc., 7 F. 3d 552 (7th Cir. 1993) (en banc), cert. denied, 511 U. S. 1069 (1994) (declaring Civil Rights Act of 1991 pro-spective only); O'Rourke v. Continental Cas. Co., 983 F. 2d 94 (7th Cir. 1993) (scope of EEOC charge).

    35. 983 F. 2d 94 (7th Cir. 1993).

    36. Id. at 96.

    37. Id. at 97-98.

    38. The reason we count 147 summary judgment cases instead of 149 is because the court affirmed two district court decisions in favor of plaintiffs: Roche v. City of Chicago, 24 F. 3d 882 (7th Cir. 1994); Oberg v. Allied Van Lines, Inc., 11 F. 3d 679 (7th Cir. 1993), cert. denied, 511 U. S. 1108 (1994).

    39. The percentage of cases in which judges wrote opinions was consistent with a common overall percentage. Analysis of the data in Table 4 shows an F-probability of 0.085. Since this probability exceeds a commonly used standard of 0.05, there is not enough evidence to claim significant variation.

    40. Jeffrey W. Stempel, Two Cheers for Specialization, 61 BROOK. L. REV. 67, 128 n. 155-56 (1995); Chicago Council of Lawyers, Evaluation of the United States Court of Appeals for the Seventh Circuit, 43 DEPAUL L. REV. 673, 731-36 (1994).

    41. Celotex Corp. v. Catrett, 477 U. S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U. S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U. S. 574 (1986).

    42. This divide between summary judgment and trial appeals is apparently not unique to employment cases. For 1996, among the Seventh Circuit's published non-habeas civil cases, West CD-ROM Libraries identifies some 230 appeals of summary judgments versus 39 appeals of trials.

    43. 42 U. S. C. ¦ 1981a( c) (1994).

    44. This includes Oberg v. Allied Van Lines, Inc., 11 F. 3d 679 (7th Cir. 1993), in which the court affirmed summary judgment for plaintiffs on defendant's counterclaim.

    45. This includes Roche v. City of Chicago, 24 F. 3d 882 (7th Cir. 1994), in which plaintiffs won summary judgment and that decision was affirmed.

    46. Cochrum v. Old Ben Coal Co., 102 F. 3d 908 (7th Cir. 1996); Weiler v. Household Fin. Corp., 101 F. 3d 519 (7th Cir. 1996); Bultemeyer v. Fort Wayne Community Sch., 100 F. 3d 1281 (7th Cir. 1996); Gile v. United Airlines, Inc., 95 F. 3d 492 (7th Cir. 1996); Eckles v. Consol. Rail Corp., 94 F. 3d 1041 (7th Cir. 1996); Bombard v. Fort Wayne Newspapers, Inc., 92 F. 3d 560 (7th Cir. 1996); Soignier v. American Bd. of Plastic Surgery, 92 F. 3d 547 (7th Cir. 1996), cert. denied, 117 S. Ct. 771 (1997); Miranda v. Wisconsin Power & Light Co., 91 F. 3d 1011 (7th Cir. 1996); Schmidt v. Methodist Hosp. of Ind., Inc., 89 F. 3d 342 (7th Cir. 1996); Stewart v. County of Brown, 86 F. 3d 107 (7th Cir. 1996); DeVito v. Chicago Park Dist., 83 F. 3d 878 (7th Cir. 1996); Kennedy v. Chem. Waste Mgmt., Inc., 79 F. 3d 49 (7th Cir. 1996); Beck v. University of Wis. Bd. of Regents, 75 F. 3d 1130 (7th Cir. 1996).

    47. Pasqua v. Metropolitan Life Ins. Co., 101 F. 3d 514 (7th Cir. 1996); Zimmerman v. Cook County Sheriff's Dep't, 96 F. 3d 1017 (7th Cir. l996); Bryson v. Chicago State Univ., 96 F. 3d 912 (7th Cir. 1996); McKenzie v. Illinois Dep't of Transp., 92 F. 3d 473 (7th Cir. 1996); EEOC v. Harvey L. Walner & Assoc., 91 F. 3d 963 (7th Cir. 1996); Kratville v. Runyon, 90 F. 3d 195 (7th Cir. 1996); Galloway v. General Motors Serv. Parts Operations, 78 F. 3d 1164 (7th Cir. 1996).

    48. Exactly why the number of appeals decided by the court shot up so in 1996 is beyond the scope of this study. One possibility is sheer coincidence. Another is that the 1991 Act, which provided for juries and makes these cases richer (creating legal remedies for the first time), lowered the threshold for filing discrimination actions and for taking appeals. A third possibility is that district courts (perhaps responding to a rise in discrimination cases) have recently leaned even more heavily on summary judgment, precipitating more appeals under the de novo standard.

    49. Three of the thirteen reversals of summary judgment decisions in 1996 involved ADA reasonable accommodation claims. Bultemeyer v. Fort Wayne Community Sch., 100 F. 3d 1281 (7th Cir. 1996) (which party bears burden of proof in showing that employer took reasonable steps to accommodate disabled employees); Feliberty v. Kemper Corp., 98 F. 3d 274 (7th Cir. 1996) (whether employer bears some burden, separate from employee's own request, to assess reasonableness of accommodation); Gile v. United Airlines, Inc., 95 F. 3d 492 (7th Cir. 1996) (whether failure to reassign employee violated reasonable accommodation standard). A fourth appeal involved an issue of the ADA's definition of "employer." DeVito v. Chicago Park Dist., 83 F. 3d 878 (7th Cir. 1996). The first ADA case decided by the Seventh Circuit in a published opinion was in 1995. Vande Zande v. State of Wis. Dep't of Admin., 44 F. 3d 538 (7th Cir. 1995).

    50. See, e. g., Frank J. Cavaliere, The Recent "Respectability" of Summary Judgments and Directed Verdicts in Intentional Age Discrimination Cases: ADEA Case Analysis Through the Supreme Court's Summary Judgment "Prism", 41 CLEV. ST. L. REV. 103 (1993); Ann C. McGin-ley, Credulous Courts and the Tortured Trilogy: The Improper Use of Summary Judgment in Title VII and ADEA Cases, 34 B. C. L. REV. 203 (1993).

    51. Adler v. Glickman, 87 F. 3d 956 (7th Cir. 1996); Flaherty v. Gas Research Inst., 31 F. 3d 451 (7th Cir. 1994); Chambers v. American Trans Air, Inc., 17 F. 3d 998 (7th Cir. 1994); Schulz v. Serfilco, Ltd., 965 F. 2d 516 (7th Cir. 1992).

    52. 957 F. 2d 424 (7th Cir. 1992).

    53. 966 F. 2d 1226 (7th Cir. 1992).

    54. 967 F. 2d 1161 (7th Cir. 1992).

    55. 968 F. 2d 635 (7th Cir. 1992).

    56. 986 F. 2d 187 (7th Cir. 1993).

    57. 24 F. 3d 882 (7th Cir. 1994).

    58. 41 F. 3d 1073 (7th Cir. 1994), cert. denied, 115 S. Ct. 2577 (1995).

    59. This case has been interpreted as sounding the death knell of disparate impact cases under the ADEA, although even the Seventh Circuit has not entirely closed the door on this theory. See Noreuil v. Peabody Coal Co., 96 F. 3d 254, 259 (7th Cir. 1996) (stating ADEA dispa-rate impact theory is "still-unresolved").

    60. 69 F. 3d 167 (7th Cir. 1995).

    61. 87 F. 3d 881 (7th Cir. 1996).

    62. 91 F. 3d 963 (7th Cir. 1996).

    63. 94 F. 3d 1041 (7th Cir. 1996), cert. denied, 115 S. Ct. 2577 (1995).

    64. Under this category, we would include Jones v. Merchants Nat'l Bank & Trust Co. of Indianapolis, 42 F. 3d 1054 (7th Cir. 1994); Cliff v. Board of Sch. Comm'rs of the City of Indian-apolis, Ind., 42 F. 3d 403 (7th Cir. 1994); Luddington v. Indiana Bell Tel. Co., 966 F. 2d 225 (7th Cir. 1992); Partee v. Metropolitan Sch. Dist. of Washington Township, 954 F. 2d 454 (7th Cir. 1992) (whether under Patterson v. McLean Credit Union, 491 U. S. 164 (1989), a failure to pro-mote on account of race was actionable under 42 U. S. C. ¦ 1981 (1994)).

    65. Plaintiffs prevailed in Johnson v. Runyon, 47 F. 3d 911 (7th Cir. 1995). Defendants pre-vailed in Soignier v. American Bd. of Plastic Surgery, 92 F. 3d 547 (7th Cir. 1996), cert. denied, 117 S. Ct. 771 (1997); Bohac v. West, 85 F. 3d 306 (7th Cir. 1996); Miller v. Runyon, 77 F. 3d 189 (7th Cir. 1996); Thelan v. Marc's Big Boy Corp., 64 F. 3d 264 (7th Cir 1995); Unterreiner v. Volkswagen of Am., Inc., 8 F. 3d 1206 (7th Cir. 1993); Moskowitz v. Trustees of Purdue Univ., 5 F. 3d 279 (7th Cir. 1993); Hamilton v. Komatsu Dresser Indus., Inc., 964 F. 2d 600 (7th Cir. 1992); Davidson v. Indiana-Am. Water Works, 953 F. 2d 1058 (7th Cir. 1992).

    66. Plaintiffs prevailed in Waid v. Merrill Area Pub. Sch., 91 F. 3d 857 (7th Cir. 1996); Brye v. Brakebush, 32 F. 3d 1179 (7th Cir. 1994); EEOC v. Harris Chernin, Inc., 10 F. 3d 1286 (7th Cir. 1993); Herrmann v. Cencom Cable Assoc., Inc., 999 F. 2d 223 (7th Cir. 1993). Defendants pre-vailed in Majeske v. Fraternal Order of Police Local Lodge No. 7, 94 F. 3d 307 (7th Cir. 1996); Kratville v. Runyon, 90 F. 3d 196 (7th Cir. 1996); Prochotsky v. Baker & McKenzie, 966 F. 2d 333 (7th Cir. 1992).

    67. Plaintiff prevailed in Overton v. Reilly, 977 F. 2d 1190 (7th Cir. 1992). Defendants pre-vailed in Cochrum v. Old Ben Coal Co., 102 F. 3d 908 (7th Cir. 1996); Bombard v. Fort Wayne Newspapers, Inc., 92 F. 3d 560 (7th Cir. 1996); Schmidt v. Methodist Hosp. of Ind., Inc., 89 F. 3d 342 (7th Cir. 1996).

    68. Plaintiffs prevailed in DeVito v. Chicago Park Dist., 83 F. 3d 878 (7th Cir 1996); Burick v. Edward Rose & Sons, 18 F. 3d 514 (7th Cir. 1994). Defendants prevailed in Hayden v. La-Z-Boy Chair Co., 9 F. 3d 617 (7th Cir. 1993); Heck v. City of Freeport, 985 F. 2d 305 (7th Cir. 1993).

    69. Plaintiff prevailed in Wagner v. NutraSweet Co., 95 F. 3d 527 (7th Cir. 1996); Oberg v. Allied Van Lines, Inc., 11 F. 3d 679 (7th Cir. 1993).

    70. Plaintiff prevailed in Bryson v. Chicago State Univ., 96 F. 3d 912 (7th Cir. 1996). Defend-ant prevailed in Smart v. Ball State Univ., 89 F. 3d 437 (7th Cir. 1996); Crady v. Liberty Nat'l Bank and Trust Co. of Ind., 993 F. 2d 132 (7th Cir. 1993).

    71. Defendants prevailed in Noreuil v. Peabody Coal Co., 96 F. 3d 254 (7th Cir. 1996); Cheek v. Western and Southern Life Ins. Co., 31 F. 3d 497 (7th Cir. 1994).

    72. Defendant prevailed in Fiorenzo v. Nolan, 965 F. 2d 348 (7th Cir. 1992).

    73. Defendant prevailed in Washington v. Lake County, Ill., 969 F. 2d 250 (7th Cir. 1992).

    74. Defendant prevailed in EEOC v. Chicago Club, 86 F. 3d 1423 (7th Cir. 1996).

    75. Plaintiff prevailed in Gile v. United Airlines, Inc., 95 F. 3d 492 (7th Cir. 1996).

    76. Shager v. Upjohn Co., 913 F. 2d 398, 403 (7th Cir. 1990) (dubbed the "practical" test for summary judgment).

    77. Bultemeyer v. Fort Wayne Community Sch., 100 F. 3d 1281 (7th Cir. 1996) (ADA rea-sonable accommodations claim); Feliberty v. Kemper Corp., 98 F. 3d 274 (7th Cir. 1996) (ADA reasonable accommodations claim); Wohl v. Spectrum Mfg., Inc., 94 F. 3d 353 (7th Cir. 1996) (ADEA termination claim); EEOC v. United Parcel Serv., 94 F. 3d 314 (7th Cir. 1996) (Title VII religious discrimination claim); Johnson v. City of Fort Wayne, Ind., 91 F. 3d 922 (7th Cir. 1996) (Title VII and Section 1981 race claim); Williams v. Bristol-Myers Squibb Co., 85 F. 3d 270 (7th Cir. 1996) (ADEA retaliation claim); Piraino v. Int'l Orientation Resources, Inc., 84 F. 3d 270 (7th Cir. 1996) (Pregnancy Discrimination Act claim); Perdomo v. Browner, 67 F. 3d 140 (7th Cir. 1995) (Title VII failure to promote race claim); Collier v. Budd Co., 66 F. 3d 886 (7th Cir. 1995) (ADEA termination claims); Courtney v. Biosound, Inc., 42 F. 3d 414 (7th Cir. 1994) (ADEA failure to hire claim); Dey v. Colt Constr. & Dev. Co., 28 F. 3d 1446 (7th Cir. 1994) (Title VII sex harassment and retaliation claims); Robinson v. PPG Indus., Inc., 23 F. 3d 1159 (7th Cir. 1994) (ADEA termination claim); Sarsha v. Sears, Roebuck & Co., 3 F. 3d 1035 (7th Cir. 1993) (ADEA termination claim); Townsend v. Indiana Univ., 995 F. 2d 691 (7th Cir. 1993) (Title VII sex harassment) ; Billish v. City of Chicago, 989 F. 2d 890 (7th Cir. 1993) (en banc) (reverse race discrimination claim), cert. denied, 510 U. S. 908 (1992); Fisher v. Transco Services-Milwaukee, Inc., 979 F. 2d 1239 (7th Cir. 1992) (ADEA termination claim); Council 31, AFSCME v. Ward, 978 F. 2d 373 (7th Cir. 1992) (Title VII race termination claim); Hughes v. Derwinski, 967 F. 2d 1168 (7th Cir. 1992) (Title VII race and sex promotion claims).

    78. 509 U. S. 502 (1993).

    79. Id. at 511.

    80. 924 F. 2d 655 (7th Cir. 1991).

    81. Id. at 657.

    82. 957 F. 2d 368 (7th Cir. 1992).

    83. Id. at 373-74.

    84. 965 F. 2d 397 (7th Cir. 1992).

    85. Id. at 402.

    86. Id. at 404. Undocumented criticisms or generally favorable performance evaluations ordinarily raise no inference of discrimination. See, e. g., Rand v. CF Indus., Inc., 42 F. 3d 1139, 1146 (7th Cir. 1994) (favorable performance evaluation from January 1990 does not help plaintiff terminated in December 1990); Gustovich v. AT& T Comm., Inc., 972 F. 2d 845, 849 (7th Cir. 1992) (rejecting, as evidence of pretext, generally, favorable reviews and absence of specific criti-cisms in personnel files); Rush v. McDonalds Corp., 966 F. 2d 1104, 1117 (7th Cir. 1992) (sudden production of written objections to absenteeism immediately before termination creates no in-ference of discrimination); Colosi v. Electri-Flex Co., 965 F. 2d 500, 502-3 (7th Cir. 1992) (no records mentioning plaintiff's alleged shortcomings). But see Wohl v. Spectrum Mfg., Inc., 94 F. 3d 353, 358 (7th Cir. 1996) (absence of documentary evidence of performance deficiencies probative of pretext).

    87. See Sample v. Aldi Inc., 61 F. 3d 544, 549 (7th Cir. 1995) ("[ i] f at least one reason re-mains unquestioned which, standing alone, would have caused Aldi to take the challenged ac-tion, then summary judgment was proper"); Russell v. Acme-Evans Co., 51 F. 3d 64, 69 (7th Cir. 1995) (noting that the employer "offered several independent reasons, backed up by affidavits" for its challenged decisions, "[ t] he fact that some of these reasons were successfully called into question by Russell's deposition or affidavit does not defeat summary judgment if at least one reason for each of the actions stands unquestioned"); Hong v. Children's Memorial Hosp., 993 F. 2d 1257, 1263-64 (7th Cir. 1993) (where plaintiff only raises issue of fact about one disciplinary memorandum, other memoranda left unrebutted nonetheless supported termination decision); Colosi v. Electri-Flex Co., 965 F. 2d 500, 503 (7th Cir. 1992) (even if one of the defendant's affidavits on summary judgment was arguably perjurious, eight remaining affidavits more than adequately support decision to terminate). See also Timm v. Mead Corp., 32 F. 3d 273, 276 (7th Cir. 1994) (employer's shifting explanation of reason for termination not proof of pretext).

    88. 77 F. 3d 914 (7th Cir. 1996).

    89. Id. at 920.

    90. Id. at 923.

    91. This same apprehension moved Judge Rovner to file a dissent. Id. at 924 (Rovner, J. dissenting). In some rather breathtaking dicta in another case, the court once stated that it was willing to assume for purposes of summary judgment that an employer fabricated memoranda complaining about plaintiff's performance, and yet even then it would not be evidence of pretext if the complaints were substantially true. Anderson v. Stauffer Chemical Co., 965 F. 2d 397, 402 (7th Cir. 1992).

    92. Wolf, 77 F. 3d at 923 (citing Russell, 51 F. 3d at 70).

    93. 503 U. S. at 507.

    94. See, e. g., EEOC v. Our Lady of the Resurrection Med. Ctr., 77 F. 3d 145, 151 (7th Cir. 1996) (comparative evidence dispositive on summary judgment only if it shows "systematically more favorable treatment toward similarly situated employees not sharing the protected charac-teristic" quoting Loyd v. Phillips Bros., Inc., 25 F. 3d 518, 522 (7th Cir. 1994)); Troupe v. May Dep't Stores Co., 20 F. 3d 734, 736 (7th Cir. 1994) (plaintiff's evidence should establish that "em-ployees similarly situated . . . other than in the characteristic (pregnancy, sex, race, or whatever) on which an employer is forbidden to base a difference in treatment received systematically better treatment"); Bush v. Commonwealth Edison Co., 990 F. 2d 928, 931 (7th Cir. 1993) (no systemic racial pattern to discipline).

    95. Gusman v. Unisys Corp., 986 F. 2d 1146, 1148 (7th Cir. 1993).

    96. 78 F. 3d 330 (7th Cir. 1996).

    97. Id. at 332 (citations omitted).

    98. 44 F. 3d 538 (7th Cir. 1995).

    99. Id. at 544-45.

    100. Id. at 542.

    101. Id.

    102. Id. at 545-46.

    103. 78 F. 3d 1164 (7th Cir. 1996).

    104. Id. at 1168.

    105. So too (at one time) did the court, as noted in this line from Lindsey v. Baxter Health-care Corp., 962 F. 2d 586, 588 (7th Cir. 1992): "In this age of sensitivity to the relations between the sexes in the workplace, one is hardly surprised that Lindsey should have been passed over for promotion after calling a female supervisor a 'bitch' . . . ."

    106. See 78 F. 3d at 1168 (while the word "bitch" may carry sexist connotations, the record reveals "very little indication" that it did so here). One should not blame Ms. Galloway too hard for her strategic decisions, though, as she represented herself pro se in the district court and on appeal. The EEOC appeared as amicus and participated at argument.

    107. Id.

    108. 20 F. 3d 734 (7th Cir. 1994). Troupe has been cited no fewer than 18 times by the court as of the time this article was written, mostly in other summary judgment appeals.

    109. Id. at 736.

    110. Troupe was not entitled to a jury, because the events predated the 1991 Civil Rights Act, but the same facts repeated today could be tried before a jury. 42 U. S. C. ¦1981a( c) (1994).

    111. Id. at 736.

    112. Id. at 737.

    113. Id.

    114. Id.

    115. Id. at 735.

    116. Id. at 736.

    117. Id. at 737.

    118. Id. at 738. The law is now changed under the ADA: such a termination today would conceivably run afoul of the anti-discrimination and reasonable accommodation provisions of that statute. Section 510 of ERISA (which prohibits terminations to deprive employees of ER-ISA plan benefits) might also be implicated. 29 U. S. C. ¦ 1140 (1994).

    119. Id. at 739.

    120. See, e. g., Geier v. Medtronic, Inc., 99 F. 3d 238, 242 (7th Cir. 1996) (when she married, supervisor told her to have "all the kids you would like" except during the winter, because supervisor did not want to cover the territories at that time of year; comment held not to be linked to termination decision); Testerman v. EDS Technical Prod. Corp., 98 F. 3d 297, 302 (7th Cir. 1996) (use of terms like "old man" or "pops" to refer to plaintiff and company's references to plaintiff's worksites as "Old" Data Center, to plaintiff as "senior" staff, and to plaintiff's duties as involving "antiquated technologies" held not pejorative in context); Mills v. First Federal Sav. & Loan Ass'n, 83 F. 3d 833, 841-42 (7th Cir. 1996) (court rejected as direct evidence in ADEA case that (a) supervisor warned plaintiff that employer was out to get rid of her because she may not be able to keep up with the regulations; (b) another supervisor defended plaintiff by saying she would have a hard time finding other work "because of her age"); Fuka v. Thomson Con-sumer Elec., 82 F. 3d 1397, 1403 (7th Cir. 1996) (no direct inference of discrimination from the following comments: (a) supervisor preferred "young people fresh out of college" because more experienced people are harder to "mold," (b) same supervisor said "I don't want older people, [I] want young people we can mold," (c) looking at applications, another supervisor said "Look-ing at the graduation date, this one has to be at least 50 or more. We'll pass on that one."); Hill v. Burrell Comm. Group, Inc., 67 F. 3d 665, 669 (7th Cir. 1995) (in reverse discrimination Title VII action, alleged statement in 1991 that personnel "found a minority candidate to replace [plaintiff]" did not establish that reasons for terminating plaintiff were discriminatory); Hong v. Children's Memorial Hosp., 993 F. 2d 1257, 1264-65 (7th Cir. 1993) (comments that Asian em-ployee should "move back to Korea" and "learn to speak English" not direct evidence); Lindsey v. Baxter Healthcare Corp., 962 F. 2d 586 (7th Cir. 1992) (" good old boys" comment was inno-cent idiom).

    121. 23 F. 3d 1159 (7th Cir. 1994).

    122. Id. at 1164-66. See also Hennessy v. Penril Datacomm Networks, Inc., 69 F. 3d 1344 (7th Cir. 1995) (after trial on the merits, plaintiff verdict affirmed; derogatory remarks about plain-tiff's pregnancy interfering with her career credited by jury).

    123. See supra note 77.

    124. 67 F. 3d 140 (7th Cir. 1995).

    125. Id. at 146.

    126. Id.

    127. 84 F. 3d 270 (7th Cir. 1996).

    128. Id. at 272.

    129. Id. at 274-75.

    130. Feliberty v. Kemper Corp., 98 F. 3d 274 (7th Cir. 1996); EEOC v. United Parcel Serv., 94 F. 3d 314 (7th Cir. 1996); Waid v. Merrill Pub. Area Schs., 91 F. 3d 857 (7th Cir. 1996); Collier v. Budd Co., 66 F. 3d 886 (7th Cir. 1995); Courtney v. Biosound, Inc., 42 F. 3d 414 (7th Cir. 1994); Council 31, AFSCME v. Ward, 978 F. 2d 373 (7th Cir. 1992); Overton v. Reilly, 977 F. 2d 1190 (7th Cir. 1992). Judge Cudahy was also on the panel in Perdomo v. Browner, 67 F. 3d 140 (7th Cir. 1995); Townsend v. Indiana Univ., 995 F. 2d 691 (7th Cir. 1993); and Fisher v. Transco Servs. -Milwaukee, Inc., 979 F. 2d 1239 (7th Cir. 1992). See also Judge Cudahy's partial or full dissents in EEOC v. Francis W. Parker Sch., 41 F. 3d 1073 (7th Cir. 1994); Colosi v. Electri-Flex Co., 965 F. 2d 500 (7th Cir. 1992); Fiorenzo v. Nolan, 965 F. 2d 348 (7th Cir. 1992).

    131. Veprinsky v. Fluor Daniel, Inc., 87 F. 3d 881 (7th Cir. 1996); Dey v. Colt Constr. & Dev. Co., 28 F. 3d 1446 (7th Cir. 1994); Robinson v. PPG Industries, Inc., 23 F. 3d 1159 (7th Cir. 1994). Judge Rovner was also on the panel in Brye v. Brakebush, 32 F. 3d 1179 (7th Cir. 1994) and EEOC v. Harris Chernin, Inc., 10 F. 3d 1286 (7th Cir. 1993). See also Judge Rovner's full or partial dissents in Wolf v. Buss (America) Inc., 77 F. 3d 914 (7th Cir. 1996); Unterreiner v. Volk-swagen of Am., Inc., 8 F. 3d 1206 (7th Cir. 1993); Harriston v. Chicago Tribune Co., 992 F. 2d 697 (7th Cir. 1993).

    132. One was a reverse discrimination case. Billish v. City of Chicago, 989 F. 2d 890 (7th Cir.) (en banc) (Chicago Fire Department's affirmative action program not proven on summary judgment to meet strict scrutiny standard), cert. denied, 510 U. S. 908 (1993). The other presented a fairly straight-forward statutory construction issue. EEOC v. Board of Governors of State Colleges and Universities, 957 F. 2d 424 (7th Cir. 1992) (collective bargaining agreement that precludes resort to grievance mechanism after filing EEOC charge violates ADEA anti-retaliation section as a matter of law). Judge Manion also dissented from reversing summary judgment in Veprinsky v. Fluor Daniel, Inc., 87 F. 3d 881 (7th Cir. 1996) and Courtney v. Bi-osound Inc., 42 F. 3d 414 (7th Cir. 1994).

    133. 65 F. 3d 562 (7th Cir. 1995).

    134. This case included a lengthy discussion of whether the plaintiff signed a knowing and voluntary release. Id. at 567-72. The case was remanded for more findings on this issue (although visiting Judge Paul H. Roney of the Eleventh Circuit dissented here and would have affirmed the court's decision throwing out the release). The panel unanimously affirmed the district court's findings on liability. After remand, the court affirmed a jury verdict that the release was not knowing and voluntary. Pierce v. Atchison, Topeka and Santa Fe Ry. Co., 110 F. 3d 431 (7th Cir. 1997).

    135. Id. at 566.

    136. Id.

    137. Id. at 573.

    138. Id.

    139. See, e. g., Rand v. CF Indus., Inc., 42 F. 3d 1139, 1145 (7th Cir. 1994) (failure to document or communicate performance problems not probative of pretext); Gustovich v. AT& T Commu-nications, Inc., 972 F. 2d 845, 849-50 (7th Cir. 1992) (post-termination evaluations placed in per-sonnel to amplify criticism of terminees not probative of discrimination). See also McCoy v. WGN Continental Broad. Co., 957 F. 2d 368, 373 (7th Cir. 1992) (employer's failure to present objections to plaintiff's performance at proceeding before Illinois Department of Human Serv-ices does not foreclose employer's reliance on those reasons in subsequent ADEA case).

    140. 62 F. 3d 863 (7th Cir. 1995).

    141. Section 704 makes it unlawful "for an employer to discriminate against any of his em-ployees or applicants for employment . . . because he has opposed any practice made an unlawful practice by [Title VII]." 42 U. S. C. ¦ 2000e-3( a) (1994).

    142. Id. at 869-72.

    143. Kralman v. Illinois Dep't of Veterans' Affairs, 23 F. 3d 150, 157 (7th Cir. 1994) (even if employer was incorrect in assuming that other applicant for job should receive preference as disabled veteran, this does not rebut genuineness of reason); Lenoir v. Roll Coater, Inc., 13 F. 3d 1130, 1134 (7th Cir. 1994) (" one-sided" investigation of employee misconduct that may very well have reached wrong result still did not detract from genuineness of employer's reasons for termination).

    144. 37 F. 3d 335 (7th Cir. 1994).

    145. Id. at 336-37.

    146. Id. at 337 (citing 29 U. S. C. ¦ 626( b) (1994)).

    147. See, e. g., Helland v. South Bend Community Sch. Corp., 93 F. 3d 327, 330 (7th Cir. 1996); Rabinovitz v. Pena, 89 F. 3d 482, 487 (7th Cir. 1996); Anderson v. Baxter Healthcare Corp., 13 F. 3d 1120, 1124 (7th Cir. 1994).

    148. 967 F. 2d 1132 (7th Cir. 1992).

    149. A jury was convened to decide a related section 1981 race discrimination claim, but the district court dismissed this claim after the jury's deliberations. Id. at 1136-37.

    150. Id. at 1139.

    151. See supra section II. A. 3. b.

    152. 954 F. 2d 424 (7th Cir. 1992).

    153. Judge Eschbach, although seated on the Seventh Circuit, was on senior status during the study period, so his judicial output was not separately reviewed for this article in ¦ I. C.

    154. Id. at 426-27.

    155. Id. at 427-28.

    156. Testerman v. EDS Technical Prods. Corp., 98 F. 3d 297, 304 (7th Cir. 1996) (subjective comparison of employees during reduction in force); Robinson v. PPG Industries, Inc., 23 F. 3d 1159, 1164 (7th Cir. 1994) (subjective ranking of employees for termination); Konowitz v. Schnadig Corp., 965 F. 2d 230, 234 (7th Cir. 1992) (no written guidelines for reduction in force).

    157. Schultz v. General Elec. Capital Corp., 37 F. 3d 329, 335 (7th Cir. 1994) (Bauer, J.).

    158. Sample v. Aldi Inc., 61 F. 3d 544, 551 (7th Cir. 1995) (Bauer, J.).

    159. Roth v. Lutheran Gen. Hosp., 57 F. 3d 1446, 1460 (7th Cir. 1995) (citation omitted) (Coffey, J.).

    160. Partington v. Broyhill Furniture Indus., Inc., 999 F. 2d 269, 272 (7th Cir. 1993) (" weak" case); Price v. Marshall Erdman & Assoc., Inc., 966 F. 2d 320, 322 (7th Cir. 1992) (" thin" case).

    161. 989 F. 2d 233 (7th Cir. 1993).

    162. Id. at 237-38.

    163. Id. at 238.

    164. 39 F. 3d 740 (7th Cir. 1994).

    165. Id. at 744 (citations omitted).

    166. 86 F. 3d 1423 (7th Cir. 1996).

    167. Id. at 1437.

    168. See, e. g., EEOC v. Harvey L. Walner & Assoc., 91 F. 3d 963, 972 (7th Cir. 1996) (faulting EEOC for offering no "coherent argument" for its interpretation of 42 U. S. C. ¦2000e-5( f) (1994)); EEOC v. State of Illinois, 69 F. 3d 167, 168-69 (7th Cir. 1995) (referring to EEOC suit as "curious" and its principal argument in support "audacious"); EEOC v. AIC Sec. Investigations, Ltd., 55 F. 3d 1276, 1282 (7th Cir. 1995) (calling EEOC's and private plaintiff's argument "Chicken Little-esque"); EEOC v. Elgin Teachers Assoc., 27 F. 3d 292, 293 (7th Cir. 1994) (choice of defendant union "peculiar").

    169. 39 F. 3d at 744.

    170. Besides which, the Seventh Circuit could be wrong. See EEOC v. Metropolitan Educ. Enterprises, 117 S. Ct. 660 (1997) (unanimously reversing the Seventh Circuit's method of count-ing employees for the jurisdictional minimum under Title VII).

    171. A rare instance was McCoy v. WGN Continental Broad. Co., 957 F. 2d 368, 370 (7th Cir. 1992), where the panel suspected that defendant's counsel might have answered questions at oral argument falsely about whether certain arguments were raised during an administrative proceed-ing. The panel referred a transcript of the attorney's answers to "the appropriate disciplinary body" for fact finding. See also Carr v. Allison Gas Turbine Div., Gen. Motors Corp., 32 F. 3d 1007, 1012 (7th Cir. 1994) (ridiculing the "mighty" General Motors for failing to control a harass-ment situation run riot at one of its plants).

    172. 103 F. 3d 1394 (7th Cir. 1997).

    173. Id. at 1396.

    174. Id. at 1397 (citations omitted).

    175. One pair of observers predicts that a tide against summary judgment in the courts of appeals may come in response to the recent availability of jury trials under Title VII and the ADA. While it may have been tolerable (though incorrect) for judges to rely on summary judg-ment as an expeditious substitute for bench trials in weak cases, the advent of jury trials makes this course less palatable (at least for the courts of appeals). RICHARD T. SEYMOUR AND BAR-BARA BERISH BROWN, EQUAL EMPLOYMENT LAW UPDATE 34-609 (1996).

    176. 25 F. 3d 518 (7th Cir. 1994).

    177. Id. at 521.

    178. 43 F. 3d 340 (7th Cir. 1994), cert. denied, 115 S. Ct. 2612 (1995).

    179. Id. at 344.

    180. See Fuka v. Thomson Consumer Elec., 82 F. 3d 1397 (7th Cir. 1996); Kuhn v. Ball State Univ., 78 F. 3d 330 (7th Cir. 1996); Umpleby v. Potter & Brumfield, Inc., 69 F. 3d 209 (7th Cir. 1995).

    181. It has been argued that formalistic application of McDonnell Douglas unnecessarily hin-ders plaintiffs' efforts to prove their claims and should be abandoned. See, e. g., Deborah C. Malamud, The Last Minuet: Disparate Treatment After Hicks, 93 MICH. L. REV. 2229, 2311-24 (1995).

    182. See, e. g., James Joseph Duane, The Four Greatest Myths About Summary Judgment, 52 WASH. & LEE L. REV. 1523, 1604 (1996) (suggested formulation of summary judgment standard).

    183. 25 F. 3d 518 (7th Cir. 1994).

    184. 32 F. 3d 1007 (7th Cir. 1994).

    185. 25 F. 3d at 522 (citing Box v. A& P Tea Co., 772 F. 2d 1372 (7th Cir. 1985), cert. denied, 478 U. S. 1010 (1986)).

    186. Id. at 523.

    187. Details are collected at Carr, 32 F. 3d at 1009-10.

    188. 939 F. 2d 484 (7th Cir. 1991).

    189. 32 F. 3d at 1010-11 (citing Reed, 939 F. 2d at 486-87).

    190. Id. at 1011.

    191. Id. Judges Posner and Rovner voted to reverse, while Judge Coffey (the author of Reed v. Shepard) dissented.

    192. Id. at 1011.

    193. 75 F. 3d 1130 (7th Cir. 1996).

    194. Id. at 1133.

    195. Id. at 1134.

    196. Id. at 1135 (citing 29 C. F. R. ¦ 1630.2( o)( 3) (1995)).

    197. Id.

    198. Id. at 1136-37.

    199. 100 F. 3d 1281 (7th Cir. 1996).

    200. Id. at 1285.

    201. Id.

    202. 411 U. S. 792 (1973).

    203. 450 U. S. 248 (1981).

    204. For a survey of the pre-Hicks case law, see Catherine J. Lanctot, The Defendant Lies and the Plaintiff Loses: The Fallacy of the "Pretext-Plus" Rule in Employment Discrimination Cases, 43 HASTINGS L. J. 57 (1991).

    205. 509 U. S. 502 (1993).

    206. Rothmeier v. Investment Advisers, Inc., 85 F. 3d 1328, 1335-37 (8th Cir. 1996); Rhodes v. Guiberson Oil Tools, 75 F. 3d 989, 992-95 (5th Cir. 1996) (en banc); Woods v. Friction Materials, Inc., 30 F. 3d 255, 260 n. 3 (1st Cir. 1994).

    207. In Hicks, the majority stated that "[ t] he factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination." 509 U. S. at 511. The circuits' cases imposing a higher standard of proof under Hicks gave this language, at best, a cribbed reading. Rothmeier, 85 F. 3d at 1335; Rhodes, 75 F. 3d at 993; Woods, 30 F. 3d at 260-61 n. 3.

    208. This would appear to place the Seventh Circuit in the mainstream on this issue. See, e. g., Combs v. Plantation Patterns, 106 F. 3d 1519, 1535-36 (11th Cir. 1997) (citing support for position from eight other circuits); Sheridan v. E. I. DuPont de Nemours & Co., 100 F. 3d 1061, 1067-68 & n. 7 (3d Cir. 1996) (en banc) (citing majority of circuits as having adopted less restric-tive standard under Hicks).

    209. 13 F. 3d 1120 (7th Cir. 1994).

    210. Id. at 1123-24.

    211. Id. at 1124 n. 3. Anderson was quickly reaffirmed in Robinson v. PPG Indus., Inc., 23 F. 3d 1159, 1163 (7th Cir. 1994) and a year later in Collier v. Budd Co., 66 F. 3d 886, 893 n. 11 (7th Cir. 1995).

    212. Wohl v. Spectrum Mfg., Inc., 94 F. 3d 353 (7th Cir. 1996); Perdomo v. Browner, 67 F. 3d 140 (7th Cir. 1995); Collier v. Budd Co., 66 F. 3d 886 (7th Cir. 1995); Courtney v. Biosound, Inc., 42 F. 3d 414 (7th Cir. 1994).

    213. O'Connor v. Consolidated Coin Caterers Corp., 56 F. 3d 542 (4th Cir. 1995), rev'd, 116 S. Ct. 1307 (1996); LaPointe v. United Auto Workers Local 600, 8 F. 3d 376 (6th Cir. 1993).

    214. O'Connor v. Consolidated Coin Caterers Corp., 116 S. Ct. 1307 (1996).

    215. Roper v. Peabody Coal Co., 47 F. 3d 925 (7th Cir. 1995); Kralman v. Illinois Dep't of Veterans' Affairs, 23 F. 3d 150 (7th Cir. 1994); Mayall v. Peabody Coal Co., 7 F. 3d 570 (7th Cir. 1993).

    216. 23 F. 3d 150 (7th Cir. 1994).

    217. Id. at 154-56.

    218. Carson v. Bethlehem Steel Corp., 82 F. 3d 157 (7th Cir. 1996) (per curiam).

    219. 513 U. S. 352 (1995).

    220. Before McKennon, the circuits split over whether the existence of such after-acquired evidence formed a defense to liability or just a limit to remedies. Cases treating after-acquired evidence as a defense included Welch v. Liberty Machine Works, Inc., 23 F. 3d 1403 (8th Cir. 1994); Dotson v. United States Postal Service, 977 F. 2d 976 (6th Cir. 1992); and Summers v. State Farm Mutual Auto. Ins., 864 F. 2d 700 (10th Cir. 1988). Cases treating it as a limit to remedies include Mardell v. Harleysville Life Ins. Co., 31 F. 3d 1221 (3d Cir. 1994); EEOC v. Farmer Bros., 31 F. 3d 891 (9th Cir. 1994); Wallace v. Dunn Constr. Co., 968 F. 2d 1174 (11th Cir. 1992), opinion vacated pending rehearing en banc, 32 F. 3d 1489 (11th Cir. 1994). In Wallace v. Dunn Constr. Co., 62 F. 3d 374 (11th Cir. 1995) (en banc), decided after the Supreme Court's decision in Mc-Kennon, the en banc court reached the same result.

    221. Kristufek v. Hussman Food Service Co., 985 F. 2d 364 (7th Cir. 1993); Reed v. Amax Coal Co., 971 F. 2d 1295 (7th Cir. 1992); Washington v. Lake County, 969 F. 2d 250 (7th Cir. 1992); Smith v. General Scanning, Inc., 876 F. 2d 1315 (7th Cir. 1989).

    222. 985 F. 2d 364 (7th Cir. 1993).

    223. Id. at 369.

    224. Id.

    225. In 1996, for instance, there were five cases where courts rejected the plaintiffs' principal discrimination claims but allowed trials on retaliation claims. Merriweather v. Family Dollar Stores, 103 F. 3d 576 (7th Cir. 1996); Knox v. State of Indiana, 93 F. 3d 1327 (7th Cir. 1996); Veprinsky v. Fluor Daniel, Inc., 87 F. 3d 881 (7th Cir. 1996); McDonnell v. Cisneros, 84 F. 3d 256 (7th Cir. 1996); Williams v. Bristol-Myers Squibb Co., 85 F. 3d 270 (7th Cir. 1996).

    226. 93 F. 3d 1327 (7th Cir. 1996).

    227. Id. at 1334.

    228. 104 F. 3d 702 (5th Cir. 1997).

    229. Reed v. Shepard, 939 F. 2d 484 (7th Cir. 1991); Koelsch v. Beltone Elec. Corp., 46 F. 3d 705 (7th Cir. 1995).

    230. 87 F. 3d 881 (7th Cir. 1996).

    231. 117 S. Ct. 843 (1997), rev'g 70 F. 3d 325 (4th Cir. 1995) (en banc).

    232. 390 U. S. 516 (1968). The Court held that in an FELA case, an employer could not require return of a settlement amount (in that case, just $105.00) as a precondition of suit. Tender back, the Court reasoned, would interfere with the railroad employees' right to recover just compensation for their injuries. Id. at 518.

    233. The Eleventh Circuit made a forceful case for rejecting tender under the ADEA:

      The Court in Hogue found that a tender requirement would deter meritorious chal-lenges to releases in FELA lawsuits. The same deterrence factor applies to ADEA claims. Forcing older employees to tender back their severance benefits to regain their jobs would have a crippling effect of the ability of such employees to challenge releases obtained by misrepresentation or duress. Such a rule would, in our opinion, encourage egregious behavior on the part of employers in forcing certain employees into early retirement for the economic benefit of the company. The ADEA was specifically designed to prevent such conduct, and we reject a tender requirement as a prerequisite to instituting a challenge to a release in an ADEA case.
    Forbus v. Sears, Roebuck & Co., 958 F. 2d 1036, 1041 (11th Cir.), cert. denied, 506 U. S. 955 (1992).

    234. Compare Long v. Sears Roebuck & Co., 105 F. 3d 1529 (3d Cir. 1997); Raczak v. Amer-itech Corp., 103 F. 3d 1257 (6th Cir. 1997); Forbus v. Sears, Roebuck & Co., 958 F. 2d 1036 (11th Cir.), cert. denied, 506 U. S. 955 (1992) (all rejecting tender back under the ADEA) with Blistein v. St. John's College, 74 F. 3d 1459, 1466-67 (4th Cir. 1996); Wamsley v. Champlin Refining & Chemicals, Inc., 11 F. 3d 534, 539 (5th Cir. 1993), cert. denied, 514 U. S. 1037 (1995) (requiring tender back under the ADEA).

    235. 29 U. S. C. ¦ 626( f) (1994).

    236. 11 F. 3d 679, 685 (7th Cir. 1993), cert. denied, 511 U. S. 1108 (1994).

    237. Tender back is still required for other kinds of discrimination claims, because the OWBPA applies only to ADEA claims. Fleming v. United States Postal Service, 27 F. 3d 259, 260-62 (7th Cir. 1994), cert. denied, 513 U. S. 1085 (1995). But the Seventh Circuit has also held, as an exception to the rule, that no tender back is required where the plaintiff claims that a release lacks consideration or was obtained through fraud or misrepresentation. Pierce v. Atchi-son, Topeka and Santa Fe Ry. Co., 65 F. 3d 562, 572 n. 2 (7th Cir. 1995).

    238. Oubre v. Entergy Operations, Inc., 112 F. 3d 787 (5th Cir. 1996), cert. granted, 117 S. Ct. 1466 (1997).

    239. 42 U. S. C. ¦¦ 12111( 8), 12112( a) (1994).

    240. See Budd v. ADT Sec. Sys., Inc., 103 F. 3d 699, 700 (8th Cir. 1996) (per curium); Rissetto v. Plumbers & Steamfitters Local 343, 94 F. 3d 597, 600-06 (9th Cir. 1996); McNemar v. Disney Store, Inc., 91 F. 3d 610, 618-19 (3d Cir. 1996). Note, too, that plaintiffs may not use favorable determinations by SSA as a sword. Robinson v. Neodata Serv., Inc., 94 F. 3d 499, 502 n. 2 (8th Cir. 1996) (plaintiff may not use Social Security determination in her favor to establish irrebut-table presumption that she is totally disabled; determination was, at most, "evidence for the trial court to consider").

    241. 977 F. 2d 1190 (7th Cir. 1992).

    242. Id. at 1196.

    243. Id. at 1195.

    244. 101 F. 3d 519 (7th Cir. 1995).

    245. Id. at 523.

    246. See also Blanton v. Inco Alloys Int'l, Inc., 108 F. 3d 104 (6th Cir. 1997) (genuine issue of material fact whether plaintiff could work, despite his applying for SSI, workers compensation and disability retirement).

    247. 510 U. S. 17 (1993).

    248. Saxton v. AT& T Co., 10 F. 3d 526, 533 (7th Cir. 1993).

    249. See, e. g., EEOC v. Our Lady of the Resurrection Med. Ctr., 77 F. 3d 145 (7th Cir. 1996); Rand v. CF Indus., Inc., 42 F. 3d 1139, 1147 (7th Cir. 1994). Other circuits citing this inference in support of defendants include Brown v. CSC Logic, Inc., 82 F. 3d 651 (5th Cir. 1996); Buhrmaster v. Overnight Transp. Co., 61 F. 3d 461 (6th Cir. 1995), cert. denied, 116 S. Ct. 785 (1996); Lowe v. J. B. Hunt Transport, Inc., 963 F. 2d 173 (8th Cir. 1992); and Proud v. Stone, 945 F. 2d 796 (4th Cir. 1991). Yet there are too many occasions to doubt the inference for it to carry much predictive value, such as where: (1) a decision maker was initially unaware of the employee's protected traits (especially religion, pregnancy or disability, which may not be obvious); (2) a putative decision maker was a cat's paw of a higher-placed supervisor; (3) the climate at the company changed over time, becoming less tolerant (for instance) of older employees or people who need to take disability leave; or (4) a decision maker was a discriminator, but hired a minority unwill-ingly due to office politics, legal obligations or the like. And where does such an inference stop? Since supervisors are just agents of their employers, why not a "same company" inference Ī that an employer that hires blacks, women or older people wouldn't discriminate in firing them? To state the proposition belies its absurdity: it would eviscerate the protections of anti-discrimi-nation law. But see Wolf v. Buss (Am.) Inc., 77 F. 3d 914 (7th Cir.), cert. denied, 117 S. Ct. 175 (1996)( employee was hired by company at age 50, indicative of lack of age discriminatory intent by employer).

    250. Robinson v. PPG Indus., Inc., 23 F. 3d 1159, 1163 (7th Cir. 1994) (rejecting heightened standard of proof in reduction in force cases).

    251. RICHARD A. POSNER, CARDOZO: A STUDY IN REPUTATION 38-39, 55, 137 (1990) (not-ing and criticizing Cardozo's suppression of facts in Palsgraf v. Long Island R. Co., 248 N. Y. 339, 162 N. E. 99 (1928)); Scott C. Idleman, A Prudential Theory of Candor, 73 TEX. L. REV. 1307 (1995) (arguing the case against strict candor in judicial opinions).

    252. See supra note 225.

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