Washington, Chrissie v. IL Dept Revenue ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3818
CHRISSIE WASHINGTON,
Plaintiff-Appellant,
v.
ILLINOIS DEPARTMENT OF REVENUE,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 01-CV-3300—Byron G. Cudmore, Magistrate Judge.
____________
ARGUED OCTOBER 26, 2004—DECIDED AUGUST 22, 2005
____________
Before EASTERBROOK, ROVNER, and SYKES, Circuit
Judges.
EASTERBROOK, Circuit Judge. Between 1984 and 2000,
Chrissie Washington worked from 7 a.m. until 3 p.m.
instead of the standard 9-to-5 schedule at the Illinois
Department of Revenue. The earlier hours allowed her
to care for her son, who has Down syndrome, when he
arrived home. By 1995 Washington had been promoted
to Executive Secretary I. Over the next few years some
of her duties were reassigned to others. Believing that
this was the result of race discrimination, she filed a formal
charge with state and federal officials in June 1999. That
charge, she maintains, led supervisors to rescind the flex-
time schedule on which her son depended.
2 No. 03-3818
A senior manager demanded that she work from 9 to 5
and, when she refused, her position was abolished. She was
assigned to another Executive Secretary I post with
a different supervisor and required to apply anew for a flex-
time schedule. When that accommodation was refused, she
took vacation or sick leave each day from 3 p.m. to 5 p.m.
until those benefits were exhausted. In August 2000 she
took an unpaid leave of absence that lasted until January
2001, when she returned to work for a different supervisor
who allowed her to work a 7-to-3 schedule. She contends in
this suit under Title VII of the Civil Rights Act of 1964 that
the agency moved her to a 9-to-5 schedule in retaliation for
her earlier charge of discrimination. See 42 U.S.C. §2000e-
3(a). The parties agreed to have a magistrate judge resolve
their dispute. See 28 U.S.C. §636(c). He granted summary
judgment for the agency because, he concluded, Washington
had not established even a prima facie case of retaliation.
She could not do so, the judge ruled, because a change of
work hours, while salary and duties remain the same, is not
an “adverse employment action.” See Grube v. Lau Indus-
tries, Inc., 257 F.3d 723, 729 (7th Cir. 2001); Williams v.
Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996).
And without an “adverse employment action” there can be
no violation of Title VII, the court concluded.
Washington wants us to hold that an “adverse employ-
ment action” is unnecessary in retaliation suits, though it is
essential (she allows) in litigation asserting discrimination
with respect to wages, hours, or conditions of employment.
She relies on decisions saying that proof of an “adverse
employment action” is unnecessary in litigation under
§2000e-3(a), which deals with retaliation, because that
section is “broader” than §2000e-2(a), which deals with
discrimination in the terms and conditions of employment.
See, e.g., Firestine v. Parkview Health System, Inc., 388
F.3d 229, 235 (7th Cir. 2004); Herrnreiter v. Chicago
Housing Authority, 315 F.3d 742, 745 (7th Cir. 2002). The
No. 03-3818 3
employer relies on decisions of other panels saying that an
“adverse employment action” is essential to both kinds of
claims. See, e.g., Hudson v. Chicago Transit Authority, 375
F.3d 553, 559-61 (7th Cir. 2004); Little v. Illinois Depart-
ment of Revenue, 369 F.3d 1007, 1011 (7th Cir. 2004); Stone
v. Indianapolis, 281 F.3d 640, 644 (7th Cir. 2002). Decisions
of other circuits likewise can be aligned on each side.
Compare Passer v. American Chemical Society, 935 F.2d
322, 331-32 (D.C. Cir. 1992) (plaintiff need not show an
adverse change in pay or working conditions), with Nelson
v. Upsala College, 51 F.3d 383, 388-89 (3d Cir. 1995), and
Bass v. Orange County, 256 F.3d 1095, 1118 (11th Cir.
2001).
The supposed conflict among panels of this circuit is
illusory (though the conflict among other circuits may
be real). Retaliation may take the form of acts outside
the workplace. The state’s Department of Revenue might
have audited Washington’s tax returns in response to
her complaint to the EEOC, or hired a private detective to
search for a disreputable tidbit that could be used to
intimidate her into withdrawing the complaint. When the
employer’s response does not affect a complainant’s
terms and conditions of employment, it is vain to look for an
adverse “employment” decision.
Section 2000e-3(a) is “broader” than §2000e-2(a) in the
sense that retaliation may take so many forms, while
§2000e-2(a) is limited to discrimination “with respect to [the
worker’s] compensation, terms, conditions, or privileges of
employment”. This is why we said in Herrnreiter and
similar decisions that retaliation need not entail an adverse
employment action. 315 F.3d at 745-46. Passer, which
Washington particularly likes, dealt with a claim that
cancellation of a professional meeting was retaliatory; that’s
a good example of action that may inflict injury without
changing pay or working conditions. But it does not follow
from the fact that retaliation may be found in events away
4 No. 03-3818
from the employer’s premises that every unwelcome
response is forbidden retaliation. To explain why this is so,
we start with the question why an “adverse employment
action” ever matters, for that phrase is not in Title VII
itself. It is a judicial gloss on the word “discrimination,” and
courts must take care not to confuse the gloss with the
statute.
Title VII does not define “discrimination,” the key term
not only for §2000e-2(a) but also for §2000e-3(a), as the
latter section treats retaliation as a form of discrimination.
Lack of a definition leaves unresolved the question how
important a difference must be to count as “discrimination.”
Suppose a supervisor regularly smiles or nods when a
member of his own religious faith walks by, but does
not change expression when an adherent of another
faith passes through the office. Does this difference in
treatment violate Title VII’s prohibition on religious
discrimination? Courts have resisted the idea that federal
law regulates matters of attitude or other small affairs of
daily life—not just because of the maxim de minimis non
curat lex (the law does not bother with trifles), see Wiscon-
sin Department of Revenue v. William Wrigley, Jr., Co., 505
U.S. 214, 231 (1992), but because almost every worker feels
offended or aggrieved by many things that happen in the
workplace, and sorting out which of these occurred because
of race, sex, religion, national origin, or a complaint about
any of these would be an impossible task. Even in an all-
white, all-male, labor force where all workers share one
religious faith, everyone feels put upon or slighted occasion-
ally; if these cannot be attributed to discrimination, neither
can most of the other disappointments people encounter at
work.
Thus the Supreme Court has held that, although any
“tangible employment action”—lower pay or another “sig-
nificant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly
No. 03-3818 5
different responsibilities, or a decision causing a significant
change in benefits”, Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 761 (1998)—may be treated as “discrimina-
tion,” only a “severe or pervasive” change in the daily
“conditions” of employment may be treated as discrimina-
tory. See Oncale v. Sundowner Offshore Services, Inc., 523
U.S. 75 (1998); Meritor Savings Bank, FSB v. Vinson, 477
U.S. 57 (1986). Congress could make any identifiable trifle
actionable, but the undefined word “discrimination” does
not itself command judges to supervise the minutiae of
personnel management. Even the definition of “tangible
employment action” in Ellerth uses “significant” three
times, reminding us that life’s little reverses are not causes
of litigation.
These considerations underlie decisions such as Williams
and Grube, which hold that a lateral transfer that does
not affect pay (or significantly affect working
conditions) cannot be called discriminatory. See also Smart
v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996);
Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999). Such
changes may cause upset as workers must adjust their
schedules but do not hurt the pocketbook. Many of our
decisions restate this as the principle that transfers nor-
mally are not “adverse employment actions.” The Supreme
Court likely would say that a transfer is a “tangible employ-
ment action” (it is an official decision by the employer) but
that the change is not “significant.” Grube, Williams, and
Smart are the principal authorities on which the district
court relied in ruling against Washington: she was moved
from one Executive Secretary I position to another, without
loss of pay or promotion opportunities.
Although the anti-retaliation rule in §2000e-3(a) is
broader than the anti-discrimination rule in §2000e-2(a) in
the sense that it extends beyond pay and other tangible
employment actions, nothing in §2000e-3(a) says or even
hints that the significance or materiality requirement has
6 No. 03-3818
been dispensed with. Retaliation is a kind of “discrimina-
tion” under Title VII, and the Supreme Court has treated
materiality or significance as integral to “discrimination”
rather than to anything that §2000e-2(a) has and §2000e-
3(a) lacks. Spearman v. Ford Motor Co., 231 F.3d 1080,
1086 (7th Cir. 2000), and Heuer v. Weil-McLain, 203 F.3d
1021, 1023 (7th Cir. 2000), say, or at least assume, that
if the supposedly retaliatory acts occurred at work, the
court asks whether the employer’s action is severe
enough to be an “adverse employment action.” Likewise if
failure to smile at work would not be a form of discrimina-
tion (because not a severe or pervasive change in working
conditions), so too a failure to smile after work (say, when
the supervisor meets an employee at school or church) could
not be deemed discriminatory, and thus could not be a form
of forbidden retaliation.
The materiality requirement is built into the word “dis-
crimination” and thus must apply to the anti-retaliation
rule in §2000e-3(a), whether the supposedly retaliatory acts
occur in or out of the workplace. Now “material” is one of
those protean words that resists further definition. This
holds open some potential to say that an act that would be
immaterial in some situations is material in others. For
example, suppose that the employee’s charge of discrimina-
tion is designed to obtain a $10,000 annual raise. Moving
that employee in response from a 100-square-foot cubicle to
a 70-square-foot one, or to one with a metal rather than a
wooden desk, would not be a material change in the condi-
tions of employment, because petty bureaucratic nastiness
does not dissuade a reasonable person from seeking a
substantial increase in income. If instead of seeking money
for himself the employee supported a colleague’s charge of
discrimination, however, this sort of response might induce
the employee to withhold support; it takes less to deter an
altruistic act than to deter a self-interested one. As we
remarked in Herrnreiter, 315 F.3d at 746, the sort of
No. 03-3818 7
response deemed immaterial to self-interested charges
could be material to others, and thus could be deemed
discriminatory. But as in Herrnreiter it is unnecessary to
pursue this possibility further; Washington’s charge of
discrimination was self-interested rather than altruistic,
and though she did not file it to improve her financial lot
she does not contend that this should matter.
To recapitulate: “discrimination” entails a requirement
that the employer’s challenged action would have been
material to a reasonable employee, which means that
the same requirement applies to §2000e-3(a), the anti-
retaliation clause, as well as the other provisions in Title
VII that use the word “discrimination.” An employer’s
action is not material under §2000e-3(a) if it would not have
dissuaded a reasonable worker from making or supporting
a charge of discrimination. By and large a reassignment
that does not affect pay or promotion opportunities lacks
this potential to dissuade and thus is not actionable. But
“by and large” differs from “never.”
Suppose an employer knows that a particular worker has
a nervous condition or hearing problem that makes him
miserable when exposed to music for extended periods.
Many people find music soothing and welcome its addi-
tion to the workplace. But if an employer sought to retaliate
for a charge of discrimination by exploiting this vulnerabil-
ity, moving him from a quiet office to one where Muzak
plays constantly, that could be a material change if not,
indeed, a constructive discharge, even under the high
standard of Pennsylvania State Police v. Suders, 542 U.S.
129 (2004). Catbert, the Evil Director of Human Resources
in the comic strip Dilbert, delights in pouncing on employ-
ees’ idiosyncratic vulnerabilities. Perverse cleverness that
is funny when limited to newsprint readily could be seen as
discrimination when used to discomfit real people.
This record suggests that the Illinois Department of
Revenue may have a Catbert in its management, seeking
8 No. 03-3818
out devices that would be harmless to most people but
do real damage to select targets. What Washington
alleges—that her job was abolished and that she was then
placed in a “new” Executive Secretary I position—would for
most people be no different from a change of supervisors, a
step that would not be discriminatory under Ellerth and the
Supreme Court’s other decisions. But because Washington
was assigned to a “new position” rather than just a new
supervisor, she had to reapply for a flex-time schedule. The
approval she had received in 1984 covered only her “old”
position, and the Department insisted that she work a
normal 9-to-5 schedule at her “new” job. What the Depart-
ment effectively did, then, was assign her a new supervisor
and change her hours. Again this would not be materially
adverse for a normal employee—but Washington was not a
normal employee, and Catbert knew it. She has a vulnera-
bility: her son’s medical condition. Working 9-to-5 was a
materially adverse change for her, even though it would not
have been for 99% of the staff. In practical effect the change
cut her wages by 25%, because it induced her to use leave
for two hours per day (her salary remained the same,
but her vacation and sick leave drained away, which is
an effective reduction in salary). When her leave ran out,
her pay fell to zero for five months, until she found a
supervisor willing to let her go at 3.
At this stage of the litigation a court must indulge all
reasonable inferences in Washington’s favor. A jury could
find that the Department set out to exploit a known vulner-
ability and did so in a way that caused a significant (and
hence an actionable) loss. To say this is not to say that
Washington necessarily has a good claim. Perhaps
she responded unreasonably to the change in hours; if
she had other options to care for her son without an (effec-
tive) reduction in pay, then the change in working hours
would not be material. Or perhaps the Department may be
able to show that it had a non-retaliatory justification.
No. 03-3818 9
Suppose, for example, that little work was available for
Washington to do during the hours of 7 to 9 a.m., before
others arrived, and that the time between 9 a.m. and 3 p.m.
(six hours less a lunch break) was not enough to handle the
office’s business, so that Washington left work for others to
finish. That would be a nondiscriminatory reason for
moving Washington to a different post and changing her
schedule. Perhaps other considerations supported the
change; or perhaps whoever was responsible did not know
of Washington’s family situation. (There is no statutory
obligation to seek out idiosyncratic vulnerabilities and avoid
taking steps that cause injury; §2000e-3(a) is not an
accommodation requirement. See Brown, 199 F.3d at 457.
An employer that is oblivious to the costs its decisions
create cannot be using these costs to retaliate.) Assessment
of these possibilities lies ahead. The district court’s judg-
ment is reversed, and the case is remanded for trial.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-22-05