Washington v. Illinois Dept. of Revenue

• Decision Date: 22 August 2005
• Docket Number: No. 03-3818.,03-3818.
• Citation: 420 F.3d 658
• Parties: Chrissie WASHINGTON, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF REVENUE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

420 F.3d 658

Chrissie WASHINGTON, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF REVENUE, Defendant-Appellee.

No. 03-3818.

United States Court of Appeals, Seventh Circuit.

Argued October 26, 2004.

Decided August 22, 2005.

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 552, 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.1991) (plaintiff need not 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 treatment violate Title VII's prohibition on religious discrimination? Courts have resisted the idea that federal law regulates matters of attitude or other small affairs of daily life—not just because of the maxim de minimis non curat lex (the law does not bother with trifles), see Wisconsin Department of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231, 112 S.Ct. 2447, 120 L.Ed.2d 174 (1992), but because almost every worker feels offended or aggrieved by many things that happen in the workplace, and sorting out which of these occurred because of race, sex, religion, national origin, or a complaint about any of these would be an impossible task. Even in an all-white, all-male, labor force where all workers share one religious faith, everyone feels put upon or slighted occasionally; if these cannot be attributed to discrimination, neither can most of the other disappointments people encounter at work.

Thus the Supreme Court has held that, although any "tangible employment action"—lower pay or another "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits", Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)—may be treated as "discrimination," only a "severe or pervasive" change in the daily "conditions" of employment may be treated as discriminatory. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Congress could make any identifiable trifle actionable, but the undefined word "discrimination" does not itself command judges to supervise the minutiae of personnel management. Even the definition of "tangible employment action" in Ellerth uses "significant" three times, reminding us that life's little reverses are not causes of litigation.

These considerations underlie decisions such as Williams and Grube, which hold that a lateral transfer that does not affect pay (or significantly affect working conditions) cannot be called discriminatory. See also Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir.1996); Brown v. Brody, 199 F.3d 446, 457 (D.C.Cir.1999). Such changes may cause upset as workers must adjust their schedules but do not hurt the pocketbook. Many of our decisions restate this as the principle that transfers normally are not "adverse employment actions." The Supreme Court likely would say that a transfer is a "tangible employment action" (it is an official decision by the employer) but that the change is not "significant." Grube, Williams, and Smart are the principal authorities on which the district court relied in ruling against Washington: she was moved from one Executive Secretary I position to another, without loss of pay or promotion opportunities.

Although the anti-retaliation rule in § 2000e-3(a) is broader than the anti-discrimination rule in § 2000e-2(a) in the sense that it extends beyond pay and other tangible employment actions, nothing in § 2000e-3(a) says or even hints that the significance or materiality requirement has been dispensed with. Retaliation is a kind of "discrimination" under Title VII, and the Supreme Court has treated materiality or significance as integral to "discrimination" rather than to anything that § 2000e-2(a) has and § 2000e-3(a) lacks. Spearman v. Ford Motor Co., 231 F.3d 1080, 1086 (7th Cir.2000), and Heuer v. Weil-McLain, 203 F.3d 1021, 1023 (7th Cir.2000), say, or at least assume, that if the supposedly retaliatory acts occurred at work, the court asks whether the employer's action is severe enough to be an "adverse...