Hester v. Ind. State Dep't of Health

• Decision Date: 09 August 2013
• Docket Number: No. 12–3207.,12–3207.
• Citation: 726 F.3d 942
• Parties: Paul HESTER, Plaintiff–Appellant, v. INDIANA STATE DEPARTMENT OF HEALTH, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

726 F.3d 942

Paul HESTER, Plaintiff–Appellant,

v.INDIANA STATE DEPARTMENT OF HEALTH, Defendant–Appellee.

No. 12–3207.

United States Court of Appeals,Seventh Circuit.

Argued June 6, 2013.

Decided Aug. 9, 2013.

James D. Masur, II, Attorney, York & Associates, Indianapolis, IN, for Plaintiff–Appellant.

Betsy M. Isenberg, Attorney, Office of the Attorney General, Indianapolis, IN, for Defendant–Appellee.

Before POSNER, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Until mid–2009, Paul Hester was employed by the Indiana State Department of Health (the Department). The Department was not satisfied with Hester's work, however, and so it terminated his employment. Hester believes that this action was motivated by his gender, race, or age. Initially, he sued the Department in Indiana state court, alleging violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, and Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e–2000e–17, but the Department removed the action to federal court. The district court granted summary judgment for the Department on all claims. It concluded that Indiana was immune from liability for private damages under the ADEA, and it found that Hester had failed to identify enough evidence to permit a trier of fact to find that the Department discharged Hester because of a protected characteristic.

We agree with the district court that Hester's evidence could not support a finding that the Department's action was motivated by race or gender. Hester conceded at oral argument in this court that the record contains no more evidence of age discrimination than of race or gender bias. His age-based claim has thus dropped out of the case. This means that we have no occasion to delve into the interesting questions of sovereign immunity that have occupied the parties in their briefing, although we outline them briefly.

I

Hester (who is white, male, and at the time he lost his job, in his mid–50s) began working as a microbiologist at the Department's immunology laboratory in 1994. It appears that his tenure was uneventful until 2007, when he was reprimanded for failing to report test results on time. Later that year, Hester applied for the position of Bench Supervisor. Lixia Liu interviewed him for that slot, but in the end she chose Rich DuFour, another white male, for the job. In 2008, Hester told DuFour (then his supervisor) that the lab was using an incorrect procedure for syphilis tests. (Hester thought that the lab should be using a “moistened chamber” for conducting the tests, and it was not doing so.) While DuFour did not respond directly to Hester's complaint, it appears that the Department has since modified its standard operating procedure and now follows the protocol Hester had identified.

At the end of 2008, DuFour left the position of Bench Supervisor. Hester again applied for the position and was again interviewed for it by Liu. This time Liu awarded the position to a white female in her mid-twenties, Jessica Gentry, who had been working in the lab for four years. Liu explained that she chose Gentry for several reasons: Gentry was one of the top performers in the lab; Liu had more confidence that Gentry's test results would be returned on time; and Liu was concerned that Hester did not have a good working relationship with other employees.

In April 2009, Hester's supervisors met with him for a performance appraisal, at which he received a document entitled “Work Improvement Plan, Notice of Substandard Performance.” The form listed a number of Hester's “performance deficiencies.” In particular, it said, he “[did] not meet expectations”; he “need[ed] improvement” in “job knowledge”; and he had “competency in only one of four testing areas ... due to hesitance in cross-training.” It recommended that Hester “work to improve knowledge retention and putting new knowledge into routine use,” develop “more thorough understanding of instruments ... and ... use of [standard operating procedures],” and “embrace more opportunities for learning and ... attain[ ] knowledge related to daily functions.” Hester was also reminded that he had failed to satisfy the Department's request that he attend training to gain proficiency in hepatitis C and syphilis testing.

The Work Improvement Plan required Hester to demonstrate perfect accuracy in syphilis and Ortho ECi testing within 30 days, or else he would face termination. (Ortho ECi is a proprietary immunodiagnostic system. See http:// www. orthoclinical. com/ en- us/ localehome/ whoweare/ Pages/ Overview History. aspx (last visited Aug. 8, 2013).) In May 2009, Hester passed the syphilis examination, but he recorded one sample on the Ortho ECi test inaccurately. A second performance appraisal report for the period between April 24 and May 24, 2009, found that Hester did not meet expectations in the areas of “job knowledge” and “communication.” That report noted that Hester failed satisfactorily to complete the Ortho ECi testing “despite the fact that he was given extensive hands-on training[,] ... much longer and more extensive training than anyone else in the Serology Lab required.” It also noted he “displayed a reluctance to read or consult the written test procedures, and he refused to take notes or write down many key facts that he seemed to have a difficult time remembering.” When he was instructed to take notes, he refused to do so because he did not want them to become a “crutch.” On June 9, the Department provided Hester with a 30–day notice of the termination of his job.

Hester was a merit employee, and under state law he could be fired only for just cause. The State Employees Appeals Commission (SEAC) rejected Hester's challenge to the Department's action. He appealed to the Marion Superior Court, which initially remanded Hester's case, instructing SEAC to correct evidentiary and procedural errors in the proceeding. The Department filed a motion addressing these errors, and the Superior Court suspended the remand pending its decision on that motion. These proceedings were ongoing at the time of the district court's decision.

Meanwhile, Hester filed this parallel suit in state court alleging that the Department's decision not to promote him to Bench Supervisor and to fire him violated Title VII and the ADEA. The Department removed the suit to federal court. In granting summary judgment for the Department, the district court held that Indiana was immune from suit under the ADEA pursuant to Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). The court found that Indiana waived its immunity from suit by removing the case to federal court, but it found that the state could nonetheless assert immunity from liability in a private damages claim under the ADEA, as the state would have been immune from a comparable claim in state court. The court also concluded that Hester's suit could not survive summary judgment in any event, because he lacked evidence that race or gender, rather than shortcomings in performance, motivated the Department's decisions. Even if the Department were mistaken in believing that it had cause to discharge Hester on competency grounds, that type of complaint is properly addressed through the wrongful termination proceedings ongoing in state court; it says nothing about unlawful discrimination once pretext is ruled out.

II

A

We review the district court's grant of summary judgment de novo, construing all evidence in the light most favorable to Hester. We will affirm if there are no genuine issues of material fact and, on the basis of the uncontested facts, the Department is entitled to judgment as a matter of law. Finally, “summary judgment may be granted based on any ground that finds support in the record, so long as the non-moving party had an opportunity to submit affidavits or other evidence and contest the issue.” Williams v. U.S. Steel, 70 F.3d 944, 947 (7th Cir.1995); see also Slaney v. The Int'l Amateur Athletic Fed'n, 244 F.3d 580, 597 (7th Cir.2001) (“[A]n appellate court can affirm the district court's dismissal based on any ground supported by the record, even if different from the grounds relied upon by the district court.”).

B

Rather than beginning with the Department's sovereign immunity defense, as the district court did, we proceed directly to the points that we believe resolve this appeal in the most straightforward manner. We are entitled to do so because the state's sovereign immunity does not automatically destroy the subject-matter jurisdiction of the federal courts, particularly in a case (such as ours) that does not rest on diversity jurisdiction. See Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998). In order to move beyond summary judgment on his discrimination claims, Hester had to submit evidence showing that the Department's adverse actions were motivated by his gender, race, or age, rather than his unsatisfactory performance. “[T]he plaintiff one way or the other must present evidence showing that ... a rational jury could conclude that the employer took that adverse action on account of her protected class, not for any non-invidious reason.” Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir.2012) (Wood, J., concurring); Pitasi v. Gartner Grp., Inc., 184 F.3d 709, 714 (7th Cir.1999) (age discrimination claim); Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 674–75 (7th Cir.2012) (race discrimination claim). We consider first his allegations of race or gender discrimination.

Hester may prove this by evidence, direct or circumstantial, that would allow a trier of fact to find that he was in a protected group, that he suffered an adverse employment action, and that the adverse action was caused by his protected status. In the alternative, he may use the well-worn “indirect,” burden-shifting method of proof recognized in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668...