Hunt et al v. City of Markham

• Decision Date: 11 July 2000
• Docket Number: No. 99-1331,99-1331
• Citation: 219 F.3d 649
• Parties: (7th Cir. 2000) James Hunt, et al., Plaintiffs-Appellants, v. City of Markham, Illinois, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 649

219 F.3d 649 (7th Cir. 2000)

James Hunt, et al., Plaintiffs-Appellants, v. City of Markham, Illinois, Defendant-Appellee.

No. 99-1331

In the United States Court of Appeals For the Seventh Circuit

Argued April 6, 2000

Decided July 11, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 5620--Charles P. Kocoras, Judge. [Copyrighted Material Omitted] Before Posner, Chief Judge, and Flaum and Ripple, Circuit Judges.

Posner, Chief Judge.

Four white police officers sued the City of Markham, a Chicago suburb, charging racial and age discrimination in violation of 42 U.S.C. sec. 1981 and the Age Discrimination in Employment Act, respectively, and they now appeal from the grant of summary judgment for the defendant and the resulting dismissal of their suit. Unlike most "reverse discrimination" suits, this one does not arise out of efforts to redress historic injustices or mitigate racial tensions; it charges naked discrimination by a municipal government that is controlled by blacks, who are a majority of the local population. The mayor is black, as is a majority of the city council, over which he presides, and as are all the members of the board of fire and police commissioners, whom he appoints.

Construed as favorably to the plaintiffs as the record permits, which is the proper standard when evaluating the grant of summary judgment in favor of the defendant, the facts are as follows. During a period stretching from 1993 to sometime after this suit was filed in 1997, the mayor and other black officials made repeated racist and "ageist" comments to or about the plaintiffs, such as that the city needed "to get rid of all the old white police officers" and--to one of the plaintiffs--"when are you going to quit so we can bring these young black men up?"; "it is the blacks' turn to self-govern in Markham, and if you are white, get out"; "it is our turn; you are the minority now; you lost, you might as well move out; we don't owe you nothing." Once when the mayor said at a city council meeting, "they are not worth anything" (referring to the three plaintiffs, all but Barron, who hold supervisory positions in the police department), one council member asked him, "Are you saying this because they are white, Mr. Mayor?" He replied, "Maybe I am." There were a number of such comments, and the defendant's argument that only the four comments listed in the complaint, before pretrial discovery brought others to light, could be considered in deciding whether to grant summary judgment is frivolous. The defendant does not argue, however--which would also be frivolous-- that the City of Markham is not legally responsible for the discriminatory actions of the mayor, city council, and board of fire and police commissioners; for they are the city government. See, e.g., McMillian v. Monroe County, 520 U.S. 781, 784-85 (1997); Pembaur v. City of Cincinnati, 475 U.S. 469, 480-84 (1986); West v. Waymire, 114 F.3d 646, 652 (7th Cir. 1997); Dill v. City of Edmond, 155 F.3d 1193, 1210-11 (10th Cir. 1998).

Hunt and Clayton presented evidence that they were denied raises in 1996 and 1997 on account of their race and age; Barron that he was denied a temporary promotion to sergeant for similar reasons; and Gordon that he was constructively discharged when he quit after being told by the chief of police that he would never perform up to the mayor's expectations. The district court rejected Hunt and Clayton's claim on two grounds that none of the derogatory comments was contemporaneous with the action of the city council in denying Hunt and Clayton raises or was shown to have influenced the council's action, and that the two were denied raises because of the city's parlous financial situation, as were all other nonunion employees of the city. The defendant adds a third ground--that the denial of a raise is not an adverse employment action for which relief can be granted in a federal suit.

The district court overread language in a number of our cases to the effect that "stray remarks" of a derogatory character are not evidence of actionable discrimination. E.g., Cullen v. Olin Corp., 195 F.3d 317, 323 (7th Cir. 1999); Cianci v. Pettibone Corp., 152 F.3d 723, 727 (7th Cir. 1998); Bahl v. Royal Indemnity Co., 115 F.3d 1283, 1293 (7th Cir. 1997); Rush v. McDonald's Corp., 966 F.2d 1104, 1116 (7th Cir. 1992). All that these cases hold--all that they could hold and still make any sense--is that the fact that someone who is not involved in the employment decision of which the plaintiff complains expressed discriminatory feelings is not evidence that the decision had a discriminatory motivation. That is simple common sense. It is different when the decision makers themselves, or those who provide input into the decision, express such feelings (1) around the time of, and (2) in reference to, the adverse employment action complained of. E.g., Bellaver v. Quanex Corp., 200 F.3d 485, 493 (7th Cir. 2000); Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714-15 (7th Cir. 1999); Bahl v. Royal Indemnity Co., supra, 115 F.3d at 1293; Cheek v. Peabody Coal Co., 97 F.3d 200, 203 (7th Cir. 1996); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir. 2000); Vance v. Union Planters Corp., 209 F.3d 438, 442 (5th Cir. 2000). For then it may be possible to infer that the decision makers were influenced by those feelings in making their decision. This is such a case. Although the mayor does not vote at meetings of the city council, he recommends actions to them, including the denial of the raises sought by these two plaintiffs. Emanating from a source that influenced the personnel action (or nonaction) of which these plaintiffs complain, the derogatory comments became evidence of discrimination, as in such cases as Wichmann v. Board of Trustees, 180 F.3d 791, 801-02 (7th Cir. 1999) (per curiam), remanded for reconsideration on other grounds, 120 S. Ct. 929 (2000), and Sheehan v. Donlen Corp., 173 F.3d 1039, 1044 (7th Cir. 1999).

There was also, it is true, evidence that the city could not afford raises not required by its union contracts; and Hunt and Clayton (also Gordon), being supervisors, were not covered by such a contract. Yet they did receive a raise in 1998--after this suit was filed--even though the city's financial situation had not improved. And they presented evidence that some black supervisors received not only raises, but also tuition reimbursements and free use of city cars, which they did not, during the years in which they were denied raises.

The evidence that we have summarized created a triable issue of whether, but for the plaintiffs' race, they would have received raises or perks, or both, in 1996 and 1997. But this brings into view the third ground for the grant of summary judgment against Hunt and Clayton--that the denial of a raise (and we suppose a fortiori the denial of perks) is not an "adverse employment action." This term is found in innumerable cases interpreting the federal employment discrimination statutes, such as the Age Discrimination in Employment Act, 29 U.S.C. sec.sec. 621 et seq., the Americans with Disabilities Act, 42 U.S.C. sec.sec. 12101 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec.sec. 2000e et seq. See, e.g., Conley v. Village of Bedford Park, No. 215 F.3d 703, 708-09 (7th Cir. 31, 2000); Tarshis v. Riese Organization, 211 F.3d 30, 35 (2d Cir. 2000); Spears v. Missouri Dept. of Corrections & Human Resources, 210 F.3d 850, 853 (8th Cir. 2000) (distinguishing between "tangible" and "minor" changes in working conditions). But the plaintiffs' suit, so far as it alleges racial rather than age discrimination, is bottomed instead on 42 U.S.C. sec. 1981, a Reconstruction-era statute that forbids contractual discrimination in general rather than employment discrimination in particular. We attach no weight to this point, however, because the plaintiffs have failed to argue that there is any relevant difference between section 1981 and the ADEA (the two statutes on which their suit is based), and because the cases, since the amendment to section 1981 that superseded Patterson v. McLean Credit Union, 491 U.S. 164 (1989); see Harrington v. Harris, 118 F.3d 359, 367 n. 8 (5th Cir. 1997), treat the statutes as completely interchangeable. E.g., Johnson v. City of Fort Wayne, 91 F.3d 922, 940 (7th Cir. 1996); Johnson v. University of Cincinnati, 215 F.3d 561, 571 and n. 5 (6th Cir. Jun. 1, 2000); Hughes v. Ortho Pharmaceutical Corp., 177 F.3d 701, 704 (8th Cir. 1999); Stewart v. Rutgers, The State University, 120 F.3d 426, 432 (3d Cir. 1997); Harrington v. Harris, supra, 118 F.3d at 366-68.

The idea behind requiring proof of an adverse employment action is simply that a statute which forbids employment discrimination is not intended to reach every bigoted act or gesture that a worker might encounter in the workplace. E.g., Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Savino v. C.P. Hall Co., 199 F.3d 925, 933 (7th Cir. 1999); Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996). The language of the statutes is consistent with such an understanding. They forbid discrimination in wages, benefits, working conditions, and other terms and conditions of employment. E.g., Title VII, 42 U.S.C. sec. 2000e-2(a)(2); Age Discrimination in Employment Act, 29 U.S.C. sec. 623(a)(1); Americans with Disabilities Act, 42 U.S.C. sec. 12112(a); 42 U.S.C. sec. 1981(b) as amended by the Civil Rights Act of 1991. Hence the cases that hold that workplace sexual harassment is not actionable unless the harassment is so severe that it can be said to have altered the plaintiff's working conditions. E.g., Faragher v. City of Boca Raton, supra, 524 U.S. at 786; Burlington Industries, Inc. v. Ellerth, 524...