Tomanovich v. City of Indianapolis

Decision Date08 August 2006
Docket NumberNo. 05-1653.,05-1653.
PartiesGeorge TOMANOVICH, Plaintiff-Appellant, v. CITY OF INDIANAPOLIS and INDIANA DEPARTMENT OF TRANSPORTATION, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Mark T. Robbins (argued), Haskin, Lauter, Larue & Gzbbons, Indianapolis, IN, for Plaintiff-Appellant.

Robin C. Clay (argued), Frances Barrow (argued), Office of the Corporation Counsel, Indianapolis, IN, for Defendant-Appellee.

Before POSNER, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

George Tomanovich sued the City of Indianapolis and the Indiana Department of Transportation, alleging that they retaliated against him for engaging in protected activity in violation of Title VII. Tomanovich also alleged that the City blacklisted him in violation of Indiana Code 22-5-3-1. The district court granted the defendants summary judgment. Tomanovich appeals. We affirm.

I.

George Tomanovich first began working for the City of Indianapolis ("the City") in 1976. He left the City's employ in the 1990's, but was rehired in March 2000 as the Natural Resources Manager for the City's Department of Parks and Recreation. In July 2000, Tomanovich transferred to the City's Department of Asset Management, where he worked as a Senior Project Engineer. Tomanovich again changed jobs in July 2001, when he joined the City's Department of Public Works ("DPW") Engineering Division as an Administrator of Construction Services.

In early 2002, Mona Salem became the Deputy Director of the DPW and Tomanovich's direct supervisor. A few months after Salem took over as Tomanovich's boss, he filed an internal complaint against Salem because he believed there was inequity between his salary and the salaries of five other individuals in his section. The City denied the grievance. Tomanovich then filed a second grievance against Salem for harassment. The City also denied this grievance.

On June 3, 2002, Salem issued Tomanovich a written notice of unacceptable performance. In this notice, Salem identified four areas of deficiency, specifically Tomanovich's (1) failure to perform his duties in a satisfactory manner, including untimely completion of his duties, canceling certain meetings, and failing to obtain pre-approval for actions he had taken; (2) failure to conform to established work standards or supervisory orders by not submitting weekly reports; (3) failure to show courtesy and respect to his supervisor and other DPW employees; and (4) failure to exercise good judgment as a manager. Based on these deficiencies, Salem placed Tomanovich on a Performance Improvement Plan.

A little over a month later, on July 10, 2002, Tomanovich filed his first charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). In that charge, Tomanovich alleged that the City was retaliating against him for engaging in protected activity. On August 23, 2002, Salem issued an Updated Notice of Unacceptable Performance to Tomanovich. This notice noted some areas of improvement, but also identified five areas for improvement in his management skills. The notice also warned him that "failure to sustain the expected level of performance may result in termination without additional notice."

While still working for the City, Tomanovich filed suit under Title VII against the City, Salem, and three other employees on September 18, 2002. Tomanovich later failed to attend a November 4, 2002, meeting with Salem at which Salem was to review his performance. Then, on November 12, 2002, the City fired Tomanovich. Tomanovich responded by filing a second charge of discrimination with the EEOC alleging that after he filed his first charge of discrimination, Salem "began intensifying her scrutiny of my work." He further claimed that the City retaliated against him by refusing to consider him for other positions within City government.

On February 4, 2003, Tomanovich applied for the position of Construction Engineer Trainee with the State of Indiana Department of Transportation ("INDOT"). To apply for the position, Tomanovich had to complete a written application which, among other things, required him to authorize INDOT to contact his former employers. For work experience, Tomanovich listed, among other jobs, his most recent employment as Administrator of Construction Services with the City. He stated that the reason for leaving that position was "separation of employment." The "Work Experience" section of the Application noted that "[e]xperience that cannot be confirmed is not acceptable."

At the time that Tomanovich applied for the Construction Engineer Trainee position he was also a candidate for Indianapolis City Council. Not knowing of his candidacy, on March 13, 2003, Stephen Risch of INDOT's Greenfield District Office offered Tomanovich the job of Construction Engineer Trainee. Once the candidacy was discovered, however, INDOT's Chief Legal Counsel Kelly Whiteman concluded that Indiana law prohibited an INDOT employee holding an engineering position from running for elected office. As a consequence, on March 19, 2003, Whiteman rescinded INDOT's offer to Tomanovich by letter, informing him of the statutory prohibition against INDOT engineers running for elected office.

In response, Tomanovich withdrew his candidacy for City Council and, on March 20, 2003, he faxed a copy of his formal withdrawal to Whiteman. The next day INDOT contacted the City to verify Tomanovich's employment history. INDOT'S Human Resources Division Chief, Jane Trout, contacted Barbara Lawrence, whom Tomanovich had listed as his Supervisor at the City, but Lawrence indicated that she could not answer any of Trout's questions about Tomanovich due to pending litigation. Trout then contacted the City's Human Resources Division, but the City refused to provide any information as to Tomanovich's prior employment, other than his dates of employment.

Around this same time, Vaneetta Kumar, a deputy commissioner with INDOT, asked Trout whether INDOT was "hiring someone by the name of Tomanovich." Trout answered in the affirmative and Kumar, who had previously worked for the City, then responded that "there were some issues with that." Trout then sent an email to Risch telling him not to make an offer to Tomanovich, stating "[t]here's problems." A couple of days later, Trout told Risch "[w]e are not going to hire Mr. Tomanovich."

On March 24, 2003, Tomanovich called Risch and Risch told him his employment with INDOT was still "on hold." After additional attempts to obtain information on Tomanovich's employment with the City failed, on May 15, 2003, Whiteman sent Tomanovich a letter stating that INDOT "performed a routine check of your employment history. Your previous employer, the City of Indianapolis, refused to provide any information other than your dates of employment. Because we are unable to verify any information regarding your job performance, we have decided that no further offers will be forthcoming."

Tomanovich responded by amending his discrimination complaint. In his amended complaint, in addition to his retaliation claim against the City, Tomanovich added a claim against INDOT for retaliation. Tomanovich also added a claim against the City, alleging that Indianapolis blacklisted him in violation of Indiana Code 22-5-3-1.1 The City and INDOT moved for summary judgment. The district court granted their motions. Tomanovich appeals.

II.

On appeal, Tomanovich argues that the district court erred in granting the defendants summary judgment on his retaliation claims. We review a district court's grant of summary judgment de novo, viewing all of the facts and drawing all reasonable inferences in favor of the nonmoving party. Lim v. Trs. of Ind. Univ., 297 F.3d 575, 580 (7th Cir.2002). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

Title VII makes it unlawful "for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a). This type of discrimination is commonly called "retaliation." "A plaintiff may prove retaliation by using either the direct method or the indirect, burden-shifting method." Moser v. Ind. Dept. of Corr., 406 F.3d 895, 903 (7th Cir.2005). Under the direct method, a plaintiff must show that "(1) he engaged in statutorily protected activity; (2) he suffered an adverse action taken by the employer; and (3) [there was] a causal connection between the two." Id. To prove retaliation under the "indirect method, the plaintiff must establish a prima facie case of retaliation by showing that: (1)[ ]he engaged in a statutorily protected activity; (2)[ ]he met the employer's legitimate expectations; (3)[ ]he suffered an adverse employment action; and (4)[ ]he was treated less favorably than similarly situated employees who did not engage in statutorily protected activity." Id. "If the plaintiff establishes a prima facie case, the burden of production shifts to the employer to present evidence of a non-discriminatory reason for its employment action." Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir.1998). "If the employer meets its burden, the burden shifts back to the plaintiff to demonstrate that the employer's reason is pretextual." Moser, 406 F.3d at 904. Tomanovich asserts on appeal that he presented sufficient evidence to avoid summary judgment under both the direct and indirect methods. We consider each defendant and each method of proof in turn.

A. The City
1. The Direct Method

Tomanovich argues on appeal that he presented sufficient evidence under the direct method that the City retaliated against him so as to avoid summary judgment. As noted, under the direct method, Tomanovich must prove that he (1) engaged in a...

To continue reading

Request your trial
565 cases
  • Anderson v. The Foster Group
    • United States
    • U.S. District Court — Northern District of Illinois
    • October 16, 2007
    ... ... City of Indianapolis Pub. Utils. Div., 281 F.3d 640 (7th Cir.2002). To establish a prima facie case ... His job loss readily qualifies as an adverse employment action. See Tomanovich v. City of Indianapolis, 457 F.3d 656, 664 (7th Cir.2006) (stating that Plaintiffs firing, which ... ...
  • Bayless v. Ancilla Domini Coll., Case No. 3:08–CV–484 JD.
    • United States
    • U.S. District Court — Northern District of Indiana
    • February 15, 2011
    ...Dr. Bayless' request for a meeting can not be said to constitute protected activity under the ADEA. See e.g. Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir.2006) ( “Merely complaining in general terms of discrimination ... without indicating a connection to a protected class......
  • Jones v. Nat'l Council of Young Men's Christian Associations of U.S.
    • United States
    • U.S. District Court — Northern District of Illinois
    • June 18, 2014
    ...claim is to proceed, it must be based on his termination, which clearly was an adverse employment action. See Tomanovich v. City of Indianapolis, 457 F.3d 656, 664 (7th Cir.2006). Relying on “suspicious timing,” Jones argues that “[d]rawing all inferences in [his] favor, a jury could determ......
  • Giwa v. City of Peoria
    • United States
    • U.S. District Court — Central District of Illinois
    • January 8, 2013
    ...(7th Cir.2010) (two months); Argyropoulos v. City of Alton, 539 F.3d 724, 734 (7th Cir.2008) (seven weeks); Tomanovich v. City of Indianapolis, 457 F.3d 656, 665 (7th Cir.2006) (two months); EEOC v. Yellow Freight System, Inc., 253 F.3d 943, 952–53 (7th Cir.2001) (en banc) (six weeks). The ......
  • Request a trial to view additional results
1 books & journal articles
  • Race and national origin discrimination
    • United States
    • James Publishing Practical Law Books Federal Employment Jury Instructions - Volume I
    • April 30, 2014
    ...to a protected class or providing facts sufficient to create that inference, is insufficient. Tomanovich v. City of Indianapolis , 457 F.3d 656, 663 (7th Cir. 2006). Eighth: An employee’s underlying discrimination charge need not be meritorious for the related activity to be protected under......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT