Lang v. Illinois Dept. of Children and Family Ser.

• Decision Date: 17 March 2004
• Docket Number: No. 03-2463.,03-2463.
• Parties: Steven LANG, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

361 F.3d 416

Steven LANG, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Defendant-Appellee.

No. 03-2463.

United States Court of Appeals, Seventh Circuit.

Submitted December 16, 2003.^*

Decided March 17, 2004.

Steven Lang, Chicago, IL, pro se.

John P. Schmidt, Office of the Attorney General, Chicago, IL, for Defendant-Appellee.

Before POSNER, ROVNER, and EVANS, Circuit Judges.

ILANA DIAMOND 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 complained 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.

Lang took "family responsibility" leave from December 1999 until February 7, 2000. When he returned, his problems 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 communications 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 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 supervised 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 numbers 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 whereabouts since March 20.

Soon after Lang returned, DCFS began disciplinary proceedings against him, which culminated in Lang's termination 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., 344 F.3d 680, 686 (7th Cir.2003). To succeed on his retaliation 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, burdenshifting method set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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 approach 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 termination constituted an adverse employment action. Likewise, Lang's union grievance about the racially disparate issuance of cell phones also qualifies as...