Lang, Steven v. IL Dept Children ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2463
STEVEN LANG,
Plaintiff-Appellant,
v.
ILLINOIS DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 7581—William J. Hibbler, Judge.
____________
SUBMITTED DECEMBER 16, 2003Œ—DECIDED MARCH 17, 2004
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Before POSNER, ROVNER, and EVANS, Circuit Judges.
ROVNER, Circuit Judge. Steven Lang sued his former
employer, the Illinois Department of Children and Family
Services (DCFS), under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., claiming that after he com-
Œ
After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is
submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
2 No. 03-2463
plained about discriminatory practices he was subjected to
“continuing disciplinary charges” and ultimately fired, all
in retaliation for his complaints. The district court granted
summary judgment in favor of DCFS, and Lang appeals.
Because Lang presented sufficient evidence of retaliation,
we vacate the judgment of the district court.
We set out the evidence on summary judgment in the
light most favorable to Lang. See Hardy v. Univ. of Ill. at
Chicago, 328 F.3d 361, 364 (7th Cir. 2003). Lang began
working for DCFS in 1994, serving as both a child welfare
specialist and a case manager. After five years of favorable
performance reviews, he was promoted in May 1999 to the
position of child protective investigator. Lang was assigned
to a team supervised by Karen Beckelman and was one of
six investigators who handled cases involving severe child
neglect and abuse. The responsibilities of members of this
team include handling emergency “mandates,” which are
orders to locate an endangered child and remove him or her
from danger within 24 hours. Because of the urgent nature
of these mandates, the office must be able to contact team
members on short notice. In September 1999 Lang, a union
steward, filed a grievance on behalf of the African-American
members of his team (including himself) claiming that
DCFS was hindering their ability to perform their duties
because it had issued cell phones to the white members of
the team but not to the black members.
That same month, Lang’s performance reviews changed
for the worse. On September 14, a supervisor, Susan Smith,
orally reprimanded him for failing to complete a case within
60 days. On September 20, Lang was absent from work, and
his supervisors recorded this as an unauthorized absence
(UA) on his timesheet. Lang, however, had used authorized
leave that day, and when he alerted his supervisors to this
fact, they removed the UA. Lang was again given a UA on
November 10. But Lang had been at work on that day, and
Smith corrected his timesheet when he notified her of the
error.
No. 03-2463 3
Lang took “family responsibility” leave from December
1999 until February 7, 2000. When he returned, his prob-
lems with his supervisors resumed immediately. On
February 8, Beckelman reported to her supervisor, Mary
Ellen Eads, that Lang’s itinerary for that day showed only
a single case visit between 9:00 a.m. and 10:30 a.m., but
that his timesheet reflected that he had worked until 4:00
p.m. Lang was given another UA. DCFS convened a hearing
on February 15 to review Lang’s activities on February 8.
At the hearing, Lang produced affidavits from his clients
that accounted for his whereabouts for the entire day. Once
again, the UA was removed from his record.
On the day of the February 15 hearing, Lang filed a
charge with the EEOC and the Illinois Department of
Human Rights alleging that Beckelman had discriminated
against him on the basis of his race. He asserted that
Beckelman had refused to approve his requests for overtime
pay and a cell phone, and had contacted his clients several
times to question his activities. After February 15, the
relationship between Beckelman and Lang deteriorated
drastically. Beckelman sent Lang over 30 memoranda and
e-mails between February and April. These written commu-
nications criticized nearly every aspect of Lang’s work,
including his attendance, the timeliness of his work, his use
of time, and the quality of his work product. Beckelman
demanded that Lang provide her with detailed itineraries
for his days, document his activities, and call her every two
hours when he was conducting an investigation out of the
office. She also placed him on formal supervision and began
reviewing his work on a daily basis. Lang responded in
writing to some of these communications, often complaining
that Beckelman was being unrealistic in her expectations
and that her constant requests for documentation were
hampering his ability to perform his duties. He also filed
several union grievances. Lang was again given UAs for
March 13 and March 16. Like the previous three UAs, the
4 No. 03-2463
March 13 absence was later resolved and removed from his
record. Lang says that he was sick on March 16 and called
into the office that day but was unable to reach anyone.
DCFS refused to remove the March 16 absence from Lang’s
record.
The relationship between Beckelman and Lang reached
a boiling point when Lang was absent from work the entire
week of March 20. Lang’s uncle had become seriously ill,
and Lang went to Michigan to care for him. Beckelman
issued him UAs for the entire week because she says he
never called to report his absence. Lang claims that he
called Beckelman’s office on Monday, but that neither
Beckelman nor her secretary answered her phone. Instead
Lang reached Theresa Purchase, a co-worker also super-
vised by Beckelman, and he asked her to tell Beckelman
of his emergency. He also called Rick Navarro, a Labor
Relations Liaison in the personnel department, to inform
him that he expected to be absent all week. Lang produced
telephone records showing that he called the phone num-
bers for both Beckelman and Navarro on March 20. But
Beckelman claims that Lang never properly reported his
emergency and, on March 22, she sent a certified letter to
his home address demanding that he explain his where-
abouts since March 20.
Soon after Lang returned, DCFS began disciplinary pro-
ceedings against him, which culminated in Lang’s termina-
tion on July 13 for accumulating six unauthorized absences:
March 16 and March 20 through 24. Lang appealed his
termination to the Illinois Civil Service Commission, which
upheld DCFS’s finding that Lang had six unauthorized
absences, but reduced his discipline to a 90-day suspension.
That decision was issued in March 2001, eight months after
Lang had been fired and three months after he had filed
this suit. He did not return to work at DCFS.
We review a grant of summary judgment de novo.
Volovsek v. Wis. Dep’t of Agric., Trade & Consumer Prot.,
No. 03-2463 5
344 F.3d 680, 686 (7th Cir. 2003). To succeed on his retal-
iation claim via the direct method, Lang would need to
show that he engaged in statutorily protected activity, that
DCFS subjected him to an adverse employment action, and
that the two events had a causal connection. See Sitar
v. Ind. Dep’t of Transp., 344 F.3d 720, 728 (7th Cir. 2003);
Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640,
644 (7th Cir. 2002). The district court held that Lang could
not rely on the direct method to prove retaliation for his
February 15 charge of discrimination because DCFS had
already begun disciplining him before that date. The court
also analyzed Lang’s claims under the indirect, burden-
shifting method set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Haywood v. Lucent Techs.,
Inc., 323 F.3d 524, 531 (7th Cir. 2003). The district court
concluded that Lang’s claims failed even under this ap-
proach because he had not established a prima facie case—
specifically, he had not shown that he was meeting DCFS’s
legitimate expectations or that he had been treated less
favorably than similarly situated employees.
Under the direct method, Lang may rely either on direct
evidence or circumstantial evidence that would allow a jury
to infer intentional discrimination by DCFS. Rogers v. City
of Chicago, 320 F.3d 748, 753-54 (7th Cir. 2003). The
parties do not dispute that Lang engaged in protected
activity by filing his charge with the EEOC, or that his ter-
mination constituted an adverse employment action. Like-
wise, Lang’s union grievance about the racially disparate
issuance of cell phones also qualifies as protected conduct
because he “opposed” an allegedly racially discriminatory
practice by DCFS. See Worth v. Tyer, 276 F.3d 249, 265 (7th
Cir. 2001) (“statutorily protected” activity not limited to
filing of EEOC charge). Instead DCFS asserts that Lang
produced no evidence under the direct method that would
establish a causal link between his discrimination com-
plaints and his termination. We disagree.
6 No. 03-2463
Lang points to the short lapse of time between when he
filed his complaint with the EEOC and when he began
receiving negative reviews from Beckelman. Although a
short period of time between the filing of a charge of dis-
crimination and an allegedly retaliatory action is rarely
enough by itself to create a triable issue, Stone, 281 F.3d at
644, the timing of events “is often an important evidentiary
ally of the plaintiff.” Lalvani v. Cook County, 269 F.3d 785,
790 (7th Cir. 2001). Close temporal proximity provides
evidence of causation, Haywood, 323 F.3d at 532, and may
permit a plaintiff to survive summary judgment provided
that there is also other evidence that supports the inference
of a causal link, see Hunt-Golliday v. Metro. Water Reclama-
tion Dist., 104 F.3d 1004, 1015 (7th Cir. 1997) (pre-Stone
case where close timing coupled with other factors estab-
lished prima facie case of retaliation).
The district court reasoned that “the timing of the disci-
pline is not suspicious at all” because Lang had already
been cited for performance and attendance violations prior
to the filing of his EEOC charge on February 15. This per-
spective, however, focuses on too short of a time span by
failing to consider events starting in September 1999. See
Sitar, 344 F.3d at 728 (court may need to examine events
over longer period of time). Lang had a five-year record of
positive performance reviews (including four months under
Beckelman’s supervision) until he complained to his union
that black employees were not issued cell phones like their
white counterparts. The same month he filed that griev-
ance, Lang began receiving “unauthorized absences” that
proved to be unjustified. DCFS charged Lang with the first
two UAs of his career on September 20 and November 10.
Both proved to be unfounded. After Lang returned to work
following his extended family responsibility leave, he re-
ceived yet another UA on his second day back. Like the
previous two, this UA also proved to be baseless and it was
removed from his record after a hearing. After that hearing
No. 03-2463 7
(and Lang’s filing of the charge with the EEOC the same
day), his supervisor immediately began issuing frequent
written reprimands of his work—something she had never
done before. From there, the working relationship between
Lang and Beckelman collapsed completely, ultimately
resulting in Lang’s termination.
Viewed in this light, the timing of Lang’s discipline is
extremely suspicious. DCFS had never criticized Lang’s
attendance or performance during the five previous years of
his employment. Yet in September 1999, the same month
he complained about the racially disparate issuance of cell
phones on his team, his supervisors began falsely citing him
for attendance policy violations. Then, almost immediately
after he filed his discrimination complaint with the EEOC,
Beckelman began issuing frequent written criticisms of his
work. Twice Lang complained about his supervisors’
conduct; after his first complaint he was repeatedly cited for
unjustified attendance violations, and after his second
complaint he received immediate and extensive written
criticism from Beckelman.
Moreover, Lang’s evidence raises the inference that
Beckelman was setting him up to fail by enforcing depart-
ment policies against him in an unreasonable manner after
February 15. See Herrnreiter v. Chicago Hous. Auth., 315
F.3d 742, 746 (7th Cir. 2002). For example, Lang sent
Beckelman an e-mail complaining about one case she re-
ported as late in which she required him to contact a par-
ticular man before closing the file. He wrote that it was
impossible to comply with her demands because it was well-
documented that the man was in the Philippines and was
unreachable, even with the assistance of a Chicago police
detective. In another case reported as late, Lang complained
that Beckelman refused to approve overtime so that he
could visit a family in the evening because he had been
unable to reach anyone during the day. He says this made
8 No. 03-2463
it impossible to complete the case because he could not
conduct the required interview.
The district court noted that Lang received an extremely
negative annual performance review from Beckelman in
June 2000. But this almost universally negative evaluation
could demonstrate either that Lang was not performing his
job adequately or that Beckelman was continuing a pattern
of retaliation against him by holding him to unrealistic
standards. This is not an issue that can be resolved on a
motion for summary judgment. Likewise, we note that there
is a question as to when Beckelman learned of the charge
Lang filed with the EEOC on February 15. The district
court said it was undisputed that Beckelman did not learn
of it until March 27, and thus could not have retaliated
against him for it before that date. But Lang presented a
memorandum, dated February 10, that said he was going to
file a charge against Beckelman for racial discrimination.
Furthermore, he claims that he sent a copy of the charge to
her by certified mail on February 29. Moreover, Eads
testified in her deposition that EEOC complaints are
delivered to her, and that her regular business practice
would have been to forward the complaint to Beckelman. As
we must construe the evidence in the light most favorable
to Lang at this stage of the proceedings, we must assume
that Beckelman was aware of the EEOC charge as early as
February 10.
Finally, we note that there is a dispute as to whether
Lang adequately reported his absences for the week of
March 20. On March 22, Beckelman sent Lang a certi-
fied letter demanding that he explain his absences, but
two e-mail messages from that week suggest that she had
learned almost immediately of the reason for Lang’s
absence. One e-mail, apparently between two personnel em-
ployees, says that Beckelman had called to inquire about
what type of leave Lang should use for the week. In another
e-mail, a union representative wrote to Lang about resched-
No. 03-2463 9
uling a meeting; the union representative wrote that
Beckelman had told her on March 20 that Lang would be
absent “for a few days.” These messages suggest that Lang’s
calls on March 20 served their intended purpose and that
Beckelman knew, as regulations require, that Lang had an
emergency.
Lang has presented enough circumstantial evidence of a
causal link between his protected activity and DCFS’s
actions to survive summary judgment. Taken together, the
extremely short lapse of time between Lang’s complaints
and the increased discipline he faced, the baseless at-
tendance violations, evidence that Beckelman was holding
him to unrealistic standards, and his previous five-year
flawless employment record raise the inference of causation.
Because we hold that Lang presented enough evidence of
retaliation to defeat summary judgment under the direct
method, we need not address whether his claim would
suffice under the McDonnell Douglas indirect burden-
shifting method.
VACATED AND REMANDED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-17-04