420 F.3d 658 (7th Cir. 2005), 03-3818, Washington v. Illinois Dept. of Revenue

Docket Nº:03-3818.
Citation:420 F.3d 658
Party Name:Chrissie WASHINGTON, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF REVENUE, Defendant-Appellee.
Case Date:August 22, 2005
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 658

420 F.3d 658 (7th Cir. 2005)

Chrissie WASHINGTON, Plaintiff-Appellant,



No. 03-3818.

United States Court of Appeals, Seventh Circuit.

August 22, 2005

Argued October 26, 2004

Appeal from the United States District Court for the Central District of Illinois. No. 01-CV-3300 – Byron G. Cudmore, Magistrate Judge.

Page 659

John A. Baker (argued), Baker, Baker & Krajewski, Springfield, IL, for Plaintiff-Appellant.

Nadine J. Wichern (argued), Office of the Attorney General, Chicago, IL, for Defendant-Appellee.

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.

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 Industries, 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 employment 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 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 Department 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

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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 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...

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