377 F.3d 698 (7th Cir. 2004), 02-3501, Harvey v. Office of Banks and Real Estate

Docket Nº:02-3501, 03-1416.
Citation:377 F.3d 698
Party Name:Renard J. HARVEY, and Robbie Clark, as personal representative of Ralph King, deceased, Plaintiffs-Appellees, v. OFFICE OF BANKS AND REAL ESTATE and William A. Darr, in his official capacity as Commissioner of the Office of Banks and Real Estate, Defendants-Appellants.
Case Date:July 26, 2004
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 698

377 F.3d 698 (7th Cir. 2004)

Renard J. HARVEY, and Robbie Clark, as personal representative of Ralph King, deceased, Plaintiffs-Appellees,


OFFICE OF BANKS AND REAL ESTATE and William A. Darr, in his official capacity as Commissioner of the Office of Banks and Real Estate, Defendants-Appellants.

Nos. 02-3501, 03-1416.

United States Court of Appeals, Seventh Circuit

July 26, 2004

Argued Sept. 3, 2003.

Page 699

[Copyrighted Material Omitted]

Page 700

Jennifer Kay Soule (argued), Soule, Bradtke & Lambert, Chicago, IL, for Plaintiffs-Appellees.

Paula Giroux (argued), Joseph M. Gagliardo, Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Deborah L. Ahlstrand, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellants.

Page 701

Before RIPPLE, ROVNER, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Renard J. Harvey, Ralph King, Brian Robinson, and Dennis Wells, all African-Americans, were employees of the State of Illinois's Office of Banks and Real Estate (OBRE). In this suit, they claimed that they had been subject to unlawful racial discrimination and retaliation on the job, in violation of Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Wells was dismissed from the case at the close of the plaintiffs' evidence and the jury found against Robinson. Harvey and King prevailed at trial on most of their claims. The jury found that OBRE had discriminated against Harvey on the basis of race when it demoted him from a top management position. King prevailed on three claims: the jury found that he had been discriminated against on two separate occasions when he failed to receive a promotion and that OBRE retaliated against him after he complained about race discrimination in the agency's promotion practices. OBRE appeals from these findings, contending that there is insufficient evidence to support the verdict in favor of Harvey and King. We affirm.



Because the issues on appeal turn almost exclusively on what evidence was before the jury, our review of the facts is necessarily detailed. We present them in the light most favorable to the jury's verdict. Roy v. Austin, 194 F.3d 840, 842 (7th Cir. 1999). On June 1, 1996, a merger of two Illinois state agencies--the Office of Savings and Residential Finance and the Office of Banks and Trusts--created OBRE, an entity that oversees the regulation and licensure of, among other things, state-chartered banks and trust companies, savings banks and loan associations, mortgage bankers and brokers, and real estate brokers and salespersons. The agency is headquartered in Springfield and has offices in Chicago.

At the times relevant to this litigation, Jack Schaffer served as the Commissioner of OBRE. Below Schaffer were Assistant Commissioners who headed the agency's four bureaus. Assistant Commissioner Jay Stevenson ran the Bureau of Residential Finance, which has two divisions: Mortgage Banking, where Harvey worked, and Thrift Regulation. Assistant Commissioner Scott Clarke headed the Bureau of Banks and Trusts Companies, which oversees state-chartered and commercial banks. The Bureau examines the information systems of banks through its Information Services section, where King worked until his death in September 1999. (King's executor, Robbie Clark, is pursuing this litigation on his behalf.) Assistant Commissioner Robert Thompson ran the Bureau of Administration, which houses the agency's human resources and equal employment opportunity personnel. Finally, Assistant Commissioner Chris McAuliffe headed the Bureau of Real Estate Professions, which regulates various entities and persons involved in real estate transactions.

OBRE employees are classified by the Illinois Department of Central Management Services (CMS), the state agency that administers the Personnel Code. In 1993-1994, CMS created a new two-tiered scheme for the classification of management titles within state agencies. Persons holding a position classified as a Senior Public Service Administrator (SPSA) are appointed to a renewable four-year term. These term appointments are intended for top management jobs that involve "major administrative responsibilities" and "policy

Page 702

making" duties. ILL. ADMIN. CODE tit. 80, § 302.800. In 1997, the top salary for SPSAs was approximately $96,000. By contrast, a Public Service Administrator (PSA) is not subject to the term appointment process; as of 1997 the top salary for a PSA was approximately $65,000. Testimony at trial supported the conclusion that the SPSA classification accords higher status, prestige, rank, and career opportunities. CMS also administers the regulations governing reclassification of job positions. The Personnel Code states that each agency head must report to CMS "any significant changes in the duties of every position within the agency." ILL. ADMIN. CODE tit. 80, § 301.20. Once CMS is notified of the change, it undertakes "a survey, audit, or such other investigation as may be deemed necessary ... to determine the proper allocation" of a position. Id.


With this background in mind, we turn first to Harvey's case. In 1976, Harvey began his employment with the Office of the Commissioner of Savings and Residential Finance, one of OBRE's predecessor agencies. Although he started out in a trainee position, Harvey steadily rose through the ranks. In 1989, he joined the Mortgage Banking division of the agency, which was charged with the examination, licensing, and supervision of regulated entities in the mortgage industry. Harvey's work, which he performed under the supervision of William Kaddatz, involved licensing. In 1991, Kaddatz gave Harvey a stellar evaluation and requested that he be promoted to an assistant supervisor position. The agency declined to follow Kaddatz's recommendation. The following year, the deputy commissioner and general counsel of the agency, Paula Hiza, seconded the promotion request and observed that Harvey was a "talented and reliable manager." Hiza commented favorably on Harvey's "professionalism, breadth of knowledge, and experience" and urged the agency to promote him. Once again, however, Harvey was not promoted. In June 1993, Kaddatz again gave Harvey high marks on his evaluation and repeated the request for a promotion by saying "it is my understanding that Mr. Harvey is finally going to be promoted to [] assistant supervisor."

In 1993, Schaffer became Commissioner of the agency, now renamed the Office of Savings and Residential Finance. He selected Dea Brennan to serve as Director of Mortgage Banking and requested that she reorganize the division. Brennan promoted Harvey in July 1993 to the position of Manager of Licensing, which was classified as an SPSA appointment. Harvey's four-year term was thus scheduled to run from 1993 until 1997. After Brennan's initial favorable action, the relationship between Harvey and Brennan began to sour almost immediately. A few weeks after assuming his new post, Harvey sent Brennan a memo expressing concern with what he perceived to be her micro-management of his job duties. In this memo, Harvey complained that Brennan was frustrating his ability to manage his employees and that he felt "relegated to the position of a clerk." At about the same time, Harvey missed a day of work because of flooding at his house. In accordance with new personnel procedures that she had recently issued, Brennan demanded that Harvey bring documentation to her from his plumber. Harvey complained to Commissioner Schaffer, who told him to "placate" Brennan by bringing in a note. Harvey acquiesced and brought in a receipt from his plumber.

Although Brennan conceded that she had a "hands-on" management style, she

Page 703

seemed particularly invested in monitoring Harvey. Other Mortgage Banking employees testified that Brennan had a "personal vendetta" against Harvey and that she kept him on a "shorter leash" than anyone else. It is clear from the cantankerous e-mails presented to the jury that Brennan butted heads with Harvey over everything from work assignments to vacation time.

In 1994, Commissioner Schaffer issued a Request for Proposals (RFP) seeking external consultants to help him improve agency operations. He hired a consultant named Alan Drazek, who recommended that the Mortgage Banking division name Harvey as the Manager of Supervision. The person in this position was responsible for issuing communications to regulated entities addressing shortcomings raised during their examination or licensing processes. Prior to her promotion as Director, Brennan had served as Manager of Supervision with SPSA rank.

In a January 1995 memorandum, Commissioner Schaffer at last adopted Drazek's recommendation and announced that Harvey would become the Manager of Supervision in the Mortgage Banking division. Harvey retained his SPSA designation when this job change occurred. Sometime in 1995, Donald Keane was appointed to fill the Manager of Licensing job that Harvey had vacated. Brennan called a meeting to introduce Keane, a Caucasian, to the licensing staff, who were all African-Americans. Two staff members present at that meeting, Karen Weaver-Harris and Jean Mukwaya, told the jury that Brennan had introduced Keane to them as their "overseer." Although Harvey was not present at this meeting, both Mukwaya and Weaver-Harris confided to him that they felt Brennan's use of this word was racially hostile, as it evoked the image of slaves on a plantation.

Unsurprisingly in light of this inauspicious start, Keane had a difficult time working with his staff and went to Harvey for advice. When Harvey told Keane about the "overseer" comment, which Keane claims he did not recall, Keane immediately went to Brennan, who in turn called her supervisor...

To continue reading