In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2768
H ARRIETT E LLIS, et al.,
Plaintiff-Appellants,
v.
CCA OF T ENNESSEE LLC, doing business as
C ORRECTIONS C ORPORATION OF A MERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cv-254—Sarah Evans Barker, Judge.
A RGUED JANUARY 10, 2011—D ECIDED JUNE 9, 2011
Before F LAUM and W ILLIAMS, Circuit Judges, and
H ERNDON, District Judge.
F LAUM, Circuit Judge. The plaintiffs in this case are
former nurses who worked in the health care unit of a
Hon. David R. Herndon, Chief Judge of the Southern
District of Illinois, sitting by designation.
2 No. 10-2768
privately run jail. They maintain that their employer,
defendant CCA of Tennessee LLC (“CCA”), subjected
them to racial discrimination and a hostile work environ-
ment, in violation of Title VII of the Civil Rights Act of
1964 and 42 U.S.C. § 1981. They also allege that their
employment relationship ended when CCA construc-
tively terminated their employment for complaining
about problems at the jail, in violation of a state whistle-
blower law. The district court granted CCA’s motion
for summary judgment. We affirm.
I. Background
The plaintiffs are Harriett Ellis, Patricia Forrest,
Shavon Jones, and Delores McNeil. All of the plaintiffs are
African-American, and they all worked as nurses at a
medium-security correctional facility known as Marion
County Jail II. Four more plaintiff-nurses below did not
appeal from the district court’s summary judgment
order, and so we omit them from our discussion. (Would
that plaintiffs had done the same. Instead, their brief
regularly refers to all of the nurses collectively, despite
the individual nature of their legal claims and despite
the fact that half their number have dropped out of the
suit.) The jail where plaintiffs worked is managed and
operated by defendant CCA, pursuant to a contract
between it and the Marion County Sheriff. To staff the
jail’s medical unit, CCA employs a doctor, psychologists,
and nurses. The staff operates under the supervision of
a health services administrator.
During their tenure with CCA, plaintiffs maintain that
they endured several incidents of race-based discrimina-
No. 10-2768 3
tion and were subjected to a hostile work environment.
The first incident is an early-2005 change that CCA made
to the jail’s staffing policy. Prior to 2005, nurses at the
jail worked in one of three permanently assigned shifts.
All of the plaintiffs, or all but one—the record is not
clear—, worked on the first of those shifts, the day shift.
Tension arose among the shifts. Plaintiff Forrest’s dep-
osition put the situation in context:
Q. You said everybody was talking about the fact
that the first shift people thought second and third
shifts were slackers, right?
A. Well, we complained about that they didn’t
get some of the work done that we know they
should have gotten done.
***
Q. And that was a commonly held belief by first-
shift people?
A. Yes. And I’m sure the second shift felt the same
way about—in nursing, I don’t care what it is . . . each
shift is going to complaint about the other shift . . . . It
was common in that facility for everybody to be
complaining about the next shift.
There were also allegations that nurses on the first
shift—that is, plaintiffs—were racists. To respond to the
tension among the shifts, CCA’s regional director of
health services, Mary Garner, announced in early 2005
that all nurses would be assigned to rotating shifts on
a month-to-month basis. That means that all nurses at
various times had to work on all three shifts, and the
4 No. 10-2768
policy was executed such that the same nurses would
not always work with one another. That makes sense;
imagine that A and B work together in Week 1 and respect
one another’s work ethic. During a subsequent week
when the two do not work together, A is less likely to
complain that B is a poor worker and more likely to
chalk up uncompleted tasks to a busy shift or some
other irregularity.
Although the effect of the shift-change policy was to
split up a predominately black shift, plaintiffs do not
point to evidence that the change was made for discrim-
inatory reasons. Indeed, the policy applied to all nurses.
Rather, plaintiffs focus on how the change made them
feel. Again, plaintiff Forrest: “[T]he reason we were
upset about it is because of the fact that day-shift nurses
were mostly black, and [Garner] . . . was splitting us up. . . .
You got eight black nurses, so let’s break them up so
they don’t have the, you know, the power.”
Plaintiffs also point to a second incident of alleged
racial discrimination. In April 2006, the health services
administrator, Carmen Copely, left her position at the jail.
Following Copely’s departure, a six-page excerpt from
a book about management was found in her office. See
Kenneth Blanchard, William Oncken, Jr., and Hal
Burrows, T HE O NE M INUTE M ANAGER M EETS THE
M ONKEY 5, 55, 68, 82, 94, 112 (1989). The book likens
monkeys to workplace problems, as in “there is a monkey
on my back.” The point of the book is to teach managers
to empower subordinates to solve problems—manage
their own monkeys—rather than effectively morph into
subordinates themselves. Id. at 29-30.
No. 10-2768 5
Nothing about the excerpt from Copely’s office could
reasonably convey a contrary impression. Here are the
contents. Page 1 consists of a man sitting at his desk
and looking rather harried. The cause is evident, for a
monkey is perched on the man’s shoulders, and several
others are making rather a nuisance of themselves; they
are fussing with papers in the man’s in-box, tipping over
his trash can, and warring over a telephone. Pages 2
through 4 of the excerpt contain management aphorisms,
one per page. Page 2 reads, “The more you get rid of your
people’s monkeys, the more time you have for your
people.” The aphorism on page 3 reads, “All monkeys
must be handled at the lowest organizational level con-
sistent with their welfare!” Someone has under-
lined the printed words “lowest organizational level”
and listed employee-groups within the jail—mental
health, doctors and physician assistants, clerks, and
nurses. The fourth page’s aphorism admonishes
managers to “[p]ractice hands-off management as much
as possible and hands-on management as much as neces-
sary.” Here, someone has underlined “hands-off” and
“hands-on.” The fifth page contains a summary of “four
rules for monkey management.” Each of the rules
explains how managers should supervise their people
in addressing workplace challenges. The sixth page is
bereft of primates or people and is geared toward pro-
moting effective time-management. Even without the
context provided by the book, it is clear from the
excerpt that monkeys are workplace challenges,
and that people—non-metaphorically referred to as
“people”—are not being compared to monkeys. Within
6 No. 10-2768
the book’s construct, bosses have people, and everyone
has monkeys.
Plaintiffs feel the excerpt and marginalia are racist,
and they seem to maintain that the excerpt’s discovery
helped spark a hostile work environment. The latter
notion is conceptually sound, as writings may be used
in ways unintended by authors. See, e.g., Salil Tripathi,
Enraged by Madonna and Nicole, N EW S TATESMAN 28
(Sept. 20, 1999) (discussing the objection of Hindus to the
use of a verse from the Bhagavadgita in Stanley Kubrick’s
Eyes Wide Shut). One can easily imagine that other em-
ployees in a workplace might hijack the anthropo-
morphic monkey management sketch and use it for
racist ends. See Aman v. Cort Furniture Rental Corp., 85 F.3d
1074, 1082 (3d Cir. 1996) (observing that it “has become
easier to coat various forms of discrimination with the
appearance of propriety” because the threat of liability
takes that which was once overt and makes it subtle).
Of course, the potential for expropriation does not estab-
lish that the material is racist. Cf. id. at 1083 (reasoning
that the use of “code words,” when combined with other
evidence, could support an inference of racial animus).
Plaintiffs claim that there was more in this case: they
say that the nurses were referred to as monkeys over the
jail’s intercom by two different CCA employees. Plain-
tiffs’ characterization, however, is unsupported by the
record evidence that they cite. The evidence indicates
that two employees used the word monkeys when they
made comments over the jail’s intercom. However, the
record does not indicate that the word was used to refer
to nurses or any subset of nurses (e.g., plaintiffs, as op-
No. 10-2768 7
posed to all of the workers at that jail), nor does the rec-
ord put the statements in any kind of meaningful context.
Subsequent to the incident involving the management
excerpt, one of the plaintiffs observed workers at the
jail wearing clothing emblazoned with symbols of the
confederacy. Specifically, in September 2006, plaintiff
Ellis observed a jail employee wearing a T-shirt that
contained a representation of a confederate flag on it.1
The employee was not one of Ellis’s supervisors nor did
the employee supervise any other plaintiff. Ellis re-
ported the incident, and the record appears to be silent
as to what response, if any, was made by CCA. On a
separate occasion, too, Ellis observed a different em-
ployee wearing a shirt decorated with the confederate
flag. That employee also was not a supervisor of
Ellis or other nurses, and the response of management
is under-specified in the record (although it appears
limited disciplinary action was taken).
The final incident related to discrimination that plain-
tiffs highlight is an encounter that plaintiff Jones had
with a doctor at the jail. The timing of the event has not
been made clear. At some point, Jones was talking with
a doctor about an inmate at the jail whose last name
was Cole. Jones asked what the inmate’s first name
was, and the doctor replied either that the first name
was “black as coal” or that it was “black ass coal.” Jones
filed a complaint against the doctor after the incident,
1
Another of the nurses who did not appeal the district court’s
summary judgment ruling also saw the employee in question.
8 No. 10-2768
and management gave a copy of the complaint to the
doctor. The doctor apologized to Jones but in doing so
told her that she should let the doctor know directly if
he said anything offensive. Jones, apparently unhappy
that the written complaint was turned over to the
doctor, filed another complaint alleging that she was
experiencing a hostile work environment. (The response,
if any, to the follow-up complaint is not included in
the record.)
The discrimination that plaintiffs contend they suffered
was not the cause of their departure from CCA. Rather,
they say they were constructively discharged for
being whistleblowers. Plaintiffs contend they were re-
taliated against after complaining about privacy viola-
tions, improper alterations of medical records, improper
handling of inmate complaints, and medication errors.
Their briefing is less than clear as to precisely what re-
taliatory acts CCA undertook, and the matter has not
been teed up by the parties. Plaintiff Ellis says that she
was suspended for reporting (internally) another nurse’s
medical errors. Plaintiff Jones was given a “disgusted
look” by health services administrator Copely at one
point. Those are the only specific alleged incidents of
retaliation that plaintiffs highlight (or we perceive),
although plaintiffs also contend that the 2005 shift-
change policy was an act of retaliation.
Eventually, plaintiffs decided they could no longer
work at the jail. In September 2006, plaintiff Jones
resigned her employment, stating in a written commu-
nication to the health services administrator that the
No. 10-2768 9
decision was due to “intolerable working conditions.”
Plaintiffs Ellis and Forrest resigned a few weeks later.
Plaintiff McNeil resigned the following January; her
resignation letter relied primarily on professional viola-
tions that she observed, indicating that she would put
her nursing license in jeopardy if she remained. She
also stated that she experienced “racial and discrim-
inatory conditions.”
After they quit, plaintiffs filed suit and their operative
complaint comprised twelve counts. CCA moved for
summary judgment, pursuant to Rule 56 of the Federal
Rules of Civil Procedure. In its order granting that
motion, the district court concluded that plaintiffs failed
to create jury-triable issues on their claims of federal
employment discrimination and state-law retaliatory
discharge. (The district court granted summary judgment
on the other claims, and plaintiffs do not appeal those
rulings.) In addition, the district court ruled that plaintiff
Forrest’s lawsuit was barred by the doctrine of claim
preclusion, also known as res judicata.
II. Discussion
Under Rule 56 of the Federal Rules of Civil Procedure,
a court “shall grant summary judgment if the movant
shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A summary judg-
ment motion is appropriately granted “against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and
10 No. 10-2768
on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To
survive summary judgment, a non-movant must be able
to show that a reasonable jury could return a verdict in
its favor—metaphysical doubt as to the material facts
does not create a genuine issue for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). Our review is de novo: we accord no
deference to a district court’s determination that the
requirements of Rule 56(a) have been met. Clifford v. Crop
Prod. Servs., Inc., 627 F.3d 268, 271 n.5 (7th Cir. 2010). The
same holds true for the district court’s determination (or
apparent determination) that some of plaintiff Forrest’s
case is barred on claim preclusion grounds. Remer v.
Burlington Area Sch. Dist., 205 F.3d 990, 998 (7th Cir.
2000). Nonetheless, we may affirm on any basis fairly
presented in the record. In re Airadigm Communications,
Inc., 616 F.3d 642, 652 (7th Cir. 2010).
Although the district court correctly determined that
there was no genuine issue of material fact related to
plaintiffs’ legal claims, the district court erred with
respect to its claim preclusion ruling. That error, how-
ever, was harmless, and we therefore affirm the district
court’s judgment.
A. Hostile Work Environment
We will start with plaintiffs’ hostile work environment
claims. The claims were brought under Title VII of the
No. 10-2768 11
1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., and 42
U.S.C. § 1981. In seeking to establish the existence of a
hostile work environment, plaintiffs must show that
their work environment was both objectively and subjec-
tively offensive—that is, “one that a reasonable person
would find hostile or abusive, and one that the victim
in fact did perceive to be so.” See Faragher v. City of Boca
Raton, 524 U.S. 775, 787 (1998). In determining whether
an environment is sufficiently hostile to support a
claim, the Supreme Court has instructed us to cast a
wide net and consider the totality of the circumstances.
The circumstances include “the frequency of the discrim-
inatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive ut-
terance; and whether it unreasonably interferes with an
employee’s work performance.” Faragher, 524 U.S. at 787-
88 (quotation marks omitted). To qualify as a hostile
work environment, the conduct at issue must be severe
or pervasive enough to cause psychological injury, al-
though Title VII “comes into play before the harassing
conduct leads to a nervous breakdown.” Harris v. Forklift
Sys., Inc., 510 U.S. 17, 22 (1993). In addition to showing
that the environment was sufficiently serious, the plain-
tiff must show that the harassment was based on mem-
bership in a protected class, Cerros v. Steel Techs., Inc., 288
F.3d 1040, 1045 (7th Cir. 2002), and also that there is a
basis for imputing liability to the plaintiff’s employer.
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998).
Plaintiffs have not created a genuine dispute for
trial. They maintain that “[v]erbal and written derogatory
references to ‘monkeys,’ confederate flag garb, skin-
12 No. 10-2768
color comments, and disparate discipline and treatment
based on race are not the characteristics of a civil, non-
discriminatory work environment hospitable to African-
Americans.” We agree with the notion, but it is not sup-
ported by record evidence in this case.2
As to the materials excerpted from T HE O NE M INUTE
M ANAGER M EETS THE M ONKEY, we will take as a given
that plaintiffs found the material subjectively hostile.
Their case founders on the objective component—that
is, what a reasonable person would find offensive or
hostile. The book is plainly directed at management
concerns, and the metaphor employed by the book (mon-
keys represent workplace problems) is unlikely to cause
confusion. Compare, e.g., Patrick White, The Key in “Ulys-
ses,” 9 JAMES JOYCE Q. 10 (Fall 1971). Moreover, the man-
agement book is a spin-off of a classic article that was
first published in the Harvard Business Review in 1974.
See William Oncken, Jr., and Donald L. Wass, Manage-
ment Time: Who’s Got the Monkey?, 99 H ARV . B US. R EV. 178
(1999) (reprinting the article as a “classic” and noting that
2
As we noted at the outset, plaintiffs unhelpfully treated
themselves as one person throughout much of their briefing,
just as they did before the district court. In the context of a
hostile work environment claim, secondhand harassment is
less severe than firsthand harassment. Peters v. Renaissance
Hotel Operating Co., 307 F.3d 535, 552 (7th Cir. 2002). For the
sake of our ease only, we have generally indulged plaintiffs’
fiction that the nurses were effectively a single entity, but
we underscore that the briefing gambit should be avoided
by litigants.
No. 10-2768 13
it “has been one of the publication’s two best-selling
reprints ever”). In Gregory v. Widnall, the Ninth Circuit
concluded that a hostile work environment claim did
not raise a jury issue where supervisors had received a
“single drawing of a monkey on a memo . . . accompanied
by the verbal explanation that it was intended to
remind [supervisors] not to ‘get the monkey off their
back’ by passing their responsibilities to others.” 153
F.3d 1071, 1074-75 (9th Cir. 1998). That conclusion is
sound. The mere presence of T HE O NE M INUTE
M ANAGER M EETS THE M ONKEY at the jail not only fails
to create a hostile work environment under our case
law, e.g., Coolidge v. Consolidated City of Indianapolis, 505
F.3d 731, 734 (7th Cir. 2007) (ruling that “brief and not
particularly severe” exposure to pornography depicting
necrophilia did not create a hostile work environment at
a crime lab), it fails to tend to establish a hostile work
environment. Similarly, the stray comments over the
jail intercom do not help plaintiffs’ case, at least not on
the record before us. It appears only that the word
monkey was used over the intercom, but plaintiffs have
provided no context. The word might have been used to
mock the jail’s administrators, to refer to all workers
collectively, or for some other purpose altogether. The
vague record evidence tells us only that the word was
uttered; no other inference is reasonable. To be sure, we
agree with the statement of one of our sister circuits that
“[t]o suggest that a human being’s physical appearance
is essentially a caricature of a jungle beast . . . is degrading
and humiliating in the extreme.” Green v. Franklin Nat’l
Bank of Minneapolis, 459 F.3d 903, 911 (8th Cir. 2006). A
14 No. 10-2768
reasonable trier of fact, however, could not conclude
that such a suggestion was made in this case.
That leaves plaintiffs with two incidents of an em-
ployee wearing clothing marked by the confederate
flag, as observed by plaintiff Ellis, and a doctor’s
offensive statement to plaintiff Jones that an inmate
named Cole’s name was “black ass coal” or “black as
coal.” 3 The Supreme Court teaches that isolated in-
cidents, unless “extremely serious,” will not support a
hostile work environment claim. Faragher, 524 U.S. at
778. That makes sense, because in order to be actionable
under the pertinent statutes, isolated incidents must be
so severe that they “amount to discriminatory changes
in the terms and conditions of employment.” Id. (quota-
tion marks omitted); see also 42 U.S.C. 2000e-2(a)(1); 42
U.S.C. § 1981(b). Although we do not appear to have
decided the matter previously, we agree that displays
of confederate flags in the workplace may support a
hostile work environment claim. See Watson v. CEVA
Logistics U.S., Inc., 619 F.3d 936, 938-39 & n.2 (8th Cir.
2010). Nonetheless, in situating plaintiffs’ allegations
among the case-law guideposts, their limited number
of claims are insufficiently severe to support a hostile
work environment claim. Compare Whittaker v. N. Ill.
3
Plaintiffs also bring claims based on discrete acts of discrimi-
nation, and they rely on these incidents in support of their
hostile work environment claims. Yet, as we discuss below,
the record evidence does not support plaintiffs’ characteriza-
tion, and so we omit the discrete acts of discrimination from
our discussion here.
No. 10-2768 15
Univ., 424 F.3d 640, 645 (7th Cir. 2005) (“An objectively
hostile work environment will not be found where most
of the conduct that forms the basis of a plaintiff’s claim
consists of derogatory statements made by supervisors
or co-workers out of her hearing, and the rest is isolated
and not particularly severe.”) (quotation marks and
alterations omitted); Dandy v. United Parcel Serv., Inc., 388
F.3d 263, 271-72 (7th Cir. 2004) (unambiguously racial
and offensive epithets did not create a genuine issue,
given that epithets were used once, long in the past); and
Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 552
(7th Cir. 2002) (handful of offensive comments, most of
which were by fellow employees over a year-and-a-
half period, were not sufficient to raise a jury issue), with
Lapka v. Chertoff, 517 F.3d 974 (7th Cir. 2008) (“[A]ssaults
within the workplace create an objectively hostile work
environment for an employee even when they are iso-
lated.”); and Loughman v. Malnati Org., Inc., 395 F.3d 404,
407-08 (7th Cir. 2005) (genuine issue for jury based on
inappropriate comments and “serious physical viola-
tions”). Even indulging plaintiffs’ imprecise briefing,
which treats all plaintiffs the same, the incidents they
cite do not entitle them to a trial.
B. Other Race-Based Claims
Plaintiffs’ other race-based claims, alleging discrete
acts of discrimination, fare no better. They proceed under
the indirect method of proof announced in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). The indirect
method is a summary judgment filtering device that
16 No. 10-2768
allows a plaintiff to make out a prima facie case of dis-
crimination. The burden then shifts to the defendant to
advance a non-discriminatory explanation for its con-
duct, and shifts back to the plaintiff to adduce evi-
dence that the defendant’s explanation is a lie.
To make out a prima facie case of racial discrimina-
tion under the indirect method of proof, plaintiffs must
(among other things) identify an adverse employment
action. McGowan v. Deere & Co., 581 F.3d 575, 578 (7th
Cir. 2009) (burden-shifting analysis generally works the
same under Title VII and § 1981). To qualify as adverse
means materially adverse, “not merely an inconvenience
or a change in job responsibilities.” Griffin v. Potter, 356
F.3d 824, 829 (7th Cir. 2004); see also Davis v. Town of
Lake Park, 245 F.3d 1232, 1238-39 (11th Cir. 2001) (noting
that courts have talked about materiality in different
ways but noting that to qualify as a change to “terms,
conditions, or privileges” of employment within Title
VII’s meaning requires an impact on plaintiff’s job “in
a real and demonstrable way”). In other words, the
change needs to be significant, although exactly what
that means will vary on the facts of a given case.
Herrnreiter v. Chicago Housing Authority, 315 F.3d 742,
744 (7th Cir. 2002) (discussing three types of adverse
actions that have supported claims).
Plaintiffs point to four actions on appeal that they
say were materially adverse: (1) the 2005 shift-change
policy, (2) a three-day suspension received by plaintiff
Ellis, (3) restrictions on “lunch break associations,” and
(4) their constructive discharge. We can jettison plain-
No. 10-2768 17
tiffs’ cryptic lunch plaints with basically no discussion
because the allegations were made by, and relate
to, nurses who did not appeal from the district court’s
summary judgment ruling. The other claimed adverse
actions are properly before us, but do not support
viable claims.
The 2005 shift-change policy does not qualify as materi-
ally adverse on these facts. See Washington v. Ill. Dep’t of
Revenue, 420 F.3d 658, 662 (7th Cir. 2005) (plaintiff could
maintain a retaliation suit based on shift changes
given that the defendant knew the plaintiff’s son had
a medical condition so that a 9-to-5 schedule “was a
materially adverse change for her, even though it would
not have been for 99% of the staff”). A change in shift
assignments will not normally be sufficient to qualify as
an adverse employment action, unless it is accompanied
by some other detriment. E.g., Grube v. Lau Indus., Inc.,
257 F.3d 723, 728 (7th Cir. 2001) (no adverse employment
action where change in shift was not accompanied by
a reduction in pay or significantly diminished job re-
sponsibilities). With respect to plaintiffs Ellis, Forrest,
and Jones, they do not point to any “objective hard-
ship” that indicates that the change might qualify as
materially adverse. Herrnreiter, 315 F.3d at 744. And
only on appeal have plaintiffs contended that family
considerations made the shift-change materially adverse
for plaintiff Ellis. They never made that argument to
the district court, and so the issue has been waived.
Tully v. Barada, 599 F.3d 591, 594 (7th Cir. 2010).
Likewise, Ellis cannot prevail on her claim of discrimina-
tion based on her three-day suspension, an incident she
18 No. 10-2768
also points to in her state-law retaliation claim. Ellis and
Forrest were both punished for investigating a third
nurse’s medication errors. The nurse in question felt
harassed, and the parties dispute whether Ellis was told
that higher-ups, not Ellis, would address the matter.
There is no question that the suspension could qualify
as an adverse employment action. However, plaintiffs
fail to show that CCA’s explanation is pretext. Under
the indirect method of proving a discrimination claim,
a plaintiff first establishes a prima facie case of discrim-
ination (an adverse employment action is one of the
elements, and we will assume the others). After the
plaintiff makes out a prima facie case, the burden shifts
to the employer to articulate a non-discriminatory ex-
planation for its conduct. If the employer does so, the
burden shifts back to the plaintiff to show that the ex-
planation is pretextual. Germano v. Int’l Profit Ass’n, Inc.,
544 F.3d 798, 807 (7th Cir. 2008). Here, the district court
reviewed the record evidence and concluded that “CCA
has established that its practice was to discipline
Caucasian employees as well as African American em-
ployees for similar activities . . . . Plaintiffs are left
merely to speculate as to the reasons they were dis-
ciplined, stating that they ‘believe’ their discipline was
pretextual without ever providing a factual foundation
for that belief.” App. 30. We agree.
Finally, plaintiffs’ constructive discharge claim cannot
succeed. Establishing constructive discharge is more
difficult than establishing a hostile work environment.
Thompson v. Mem’l Hosp. of Carbondale, 625 F.3d 394, 401-02
(7th Cir. 2010). The failure of the latter thus dooms the
former. Id.
No. 10-2768 19
C. State Law Whistleblower Actions
Plaintiffs maintain that they were intimidated, re-
taliated against, and had their employment construc-
tively terminated for following their professional
nursing ethical obligations by complaining about safety
practices at the jail. According to them, CCA’s conduct
violated IC 22-5-3-3 (the “Act”), a statutory whistle-
blower provision. CCA contends that plaintiffs’ whistle-
blower claims cannot move forward because plain-
tiffs fail to point out a violation of law, which is a pre-
requisite to a claim under the statute, and because plain-
tiffs failed to submit written complaints to an appro-
priate state agency or official. We evaluate the argu-
ments on a nearly clean slate; Indiana Courts have
had limited occasion to interpret the Act. Coutee v.
Lafayette Neighborhood Housing Servs., Inc., 792 N.E.2d
907, 912 (Ind. Ct. App. 2003). While concerns over federal-
ism lead us to tread lightly when interpreting matters
of state law, the task before us is relatively simple and
Indiana courts look to basic tools of statutory interpreta-
tion, see, e.g., Estate of Moreland v. Dieter, 576 F.3d 691,
695 (7th Cir. 2009) (“In Indiana, the lodestar of statu-
tory interpretation is legislative intent, and the plain
language of the statute is the best evidence of that in-
tent.”) (quotation marks and alterations omitted). Our
task is to “deduce, as closely as possible, how the Indiana
Supreme Court would rule.” Hinc v. Lime-O-Sol Co., 382
F.3d 716, 720 (7th Cir. 2004). We agree with CCA that
plaintiffs do not point to a violation of law on which to
hang their whistleblower claims. Because that resolves
20 No. 10-2768
the matter, we decline to reach the parties’ arguments
regarding the Act’s writing requirement.
As ever with matters of statutory interpretation, we
start with the Act’s language. The Act protects em-
ployees from certain forms of retaliation, where their
employers are under public contract.4 In pertinent part,
the provision at issue provides:
(a) An employee of a private employer that is under
public contract may report in writing the existence of:
(1) a violation of a federal law or regulation;
(2) a violation of a state law or rule;
(3) a violation of an ordinance of a political sub-
division (as defined in IC 36-1-2-13); or
(4) the misuse of public resources;
concerning the execution of public contract first to
the private employer, unless the private employer
is the person whom the employee believes is com-
mitting the violation or misuse of public resources. In
that case, the employee may report the violation
or misuse of public resources in writing to either
the private employer or to any official or agency
4
Proscribed forms of retaliation include termination of em-
ployment. IC 22-5-3-3(b). We assume without deciding that
Indiana Courts would allow for a whistleblower action to be
maintained under the code based on a constructive discharge
theory. See Tony v. Elkhart County, 851 N.E.2d 1032, 1040 (Ind.
Ct. App. 2006) (discussing the requirements for a constructive
retaliatory discharge claim under the common law).
No. 10-2768 21
entitled to receive a report from the state ethics com-
mission under IC 4-2-6-4(b)(2)(G) or IC 4-2-6-4(b)(2)(H).
If a good faith effort is not made to correct the
problem within a reasonable time, the employee
may submit a written report of the incident to any
person, agency, or organization.
IC 22-5-3-3(a). The protections of the Act do not attach
unless and until the employee files a “written report of
the [complained of] incident to any person, agency, or
organization.” IC 22-5-3-3(b).
In this case, plaintiffs filed internal reports primarily
about safety practices at CCA. However, plaintiffs have
not told us what state or federal laws were violated by
the conduct they observed. The Act by its terms covers
violations of federal laws or regulations, state laws or
rules, and ordinances, as well as the misuse of public
resources. IC 22-5-3-3(a)(1)-(4). A whistleblower has to
complain about such a violation or misuse of public
resources before the Act’s protections are triggered.
Here, plaintiffs point out no violation of a state law or
rule, or anything else within the Act’s ambit. Instead,
they rely on their obligations as practical nurses, under
848 Ind. Admin. Code 2-3-2(10) (standards for prac-
tical nurses), to report to their bosses or state officials
unprofessional conduct that may jeopardize patient
safety. Ironically, by filing a report, plaintiffs ensured
that there was no violation of state law, and they have
not argued that the subject matter of their complaints
fell within the coverage of the Act. Therefore, summary
judgment on the plaintiffs’ whistleblower claims was
appropriate.
22 No. 10-2768
D. Claim Preclusion
We do agree with plaintiffs that the district court erred
with respect to its claim preclusion ruling. Although the
parties have not done much to clarify matters, some of
plaintiff Forrest’s allegations were made in an earlier
(unsuccessful) federal lawsuit. The district court
appeared to rule that all of Forrest’s second lawsuit was
barred under the doctrine of claim preclusion, also
known as res judicata. The district court, relying on dicta
from Zurich Capital Markets Inc. v. Coglianese, 383 F. Supp.
2d 1041, 1047 n.2 (N.D. Ill. 2005), reasoned that Forrest
could have amended her complaint in the earlier suit to
allege conduct that occurred between the time when she
filed suit and the time when CCA moved for summary
judgment. That conclusion did not accurately reflect
our case law.
The preclusive effect of a federal court decision is a
matter of federal common law. Taylor v. Sturgell, 553 U.S.
880, 891 (2008). The federal rule is that claim preclu-
sion generally does not bar a subsequent lawsuit for
issues that arise after the operative complaint is filed.
See Doe v. Allied-Signal, Inc., 985 F.2d 908, 914-15 (7th Cir.
1993) (“[P]laintiffs need not amend filings to included
issues that arose after the original suit is lodged.”); Spiegel
v. Cont’l Ill. Nat’l Bank, 790 F.2d 638, 646 (7th Cir. 1986); see
also 18 Wright, Miller, & Cooper, FEDERAL P RACTICE AND
P ROCEDURE § 4409, at 213 (2d ed. 2002) (“Most cases
rule that an action need include only the portions of the
claim due at the time of commencing that action, fre-
quently observing that the opportunity to file a supple-
No. 10-2768 23
mental complaint is not an obligation.”); id. at 213-16
(noting that an unsuccessful attempt to amend a com-
plaint requires “careful analysis to determine whether
the attempt was rejected on grounds that should
preclude a later attempt to resurrect the matters ex-
cluded from the first action”).
That does not end matters, however. Plaintiffs do not
argue that Forrest’s claims differ on the merits from the
rest of the plaintiffs’ claims. The district court’s error on
claim preclusion was harmless. See Fed. R. Civ. P. 61.
In addition, we note that, on the facts and arguments
presented, the district court did an admirable job of
addressing the many issues in the case.
III. Conclusion
For the reasons set forth above, the judgment of the
district court is A FFIRMED.
6-9-11