In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1178
Richard Cullom,
Plaintiff-Appellee,
v.
Jesse Brown, Secretary, Department of Veterans
Affairs,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 1925--Morton Denlow, Magistrate Judge.
Argued September 29, 1999--Decided April 20, 2000
Before Harlington Wood, Jr., Manion, and Evans, Circuit
Judges.
Manion, Circuit Judge. After what appeared to be
a successful period of employment as a civilian
Navy employee, Richard Cullom accepted a position
with the Hines VA Hospital as a staffing
specialist. But he soon became dissatisfied with
his employment situation and over a period of
time he filed several EEO complaints against the
Veterans Administration (VA) for discrimination.
In the hope of avoiding future complaints,
superiors at the hospital ordered Cullom’s
immediate supervisor to overrate him on his
performance evaluations. This did not work.
Cullom ultimately sued the VA for race and
employment discrimination, this time claiming
that by overrating him, it made him ineligible
for a remedial program that supposedly would have
accelerated his advancement to a higher grade.
The district court noted that "the case presents
the novel question of whether Plaintiff was
retaliated against by receiving a favorable work
evaluation while being refused promotion.
Alternatively, the case raises the question of
whether Plaintiff was retaliated against by
reason of Defendant’s failure to provide
Plaintiff with an honest evaluation and the
remedial benefits to which he was then entitled."
Cullom v. Brown, 27 F. Supp.2d 1089, 1090-91
(N.D. Ill. 1998). The district court concluded
that the unwarranted favorable ratings
constituted retaliation in violation of Title
VII, and awarded Cullom $1500 in damages plus
attorney’s fees and costs. We conclude that
giving Cullom a rating higher than he deserved
may have been a poor and even dishonest policy,
but it was not unlawful retaliation. We therefore
reverse.
I. Facts
Richard Cullom is a 55-year-old black man and an
honorably discharged veteran. Prior to coming to
the VA, he had jobs in both the public and
private sectors (including one stint as an EEO
specialist for the United States Army).
Immediately before joining the VA, Cullom worked
as a civilian for the Navy, where he was
eventually promoted to the GS-11 level. While at
the Navy, Cullom was rated "fully successful" at
both the GS-9 and GS-11 levels./1
As the district court noted, Cullom has had a
"rocky employment history with the VA." Id. at
1091. It hired him in September 1990 as a GS-9
staffing specialist on a temporary appointment
(not to exceed one year). Six months into this
assignment, his immediate supervisor, a black
female, thought Cullom’s work was unacceptable
and fired him effective March 21, 1991. Cullom
filed an EEO complaint (his first), alleging that
his supervisor had discriminated against him on
the basis of his sex by depriving him of the
proper training. The VA settled his complaint in
October 1992. Under the settlement, the VA
reinstated Cullom as a full-time GS-9 personnel
staffing specialist, subject to a six-month
probationary period. Significantly, the
settlement "set forth written performance
standards" for him. Id.
Although Cullom’s GS-9 position, even with his
probationary status, had the potential for
promotion to GS-11, Cullom did not perform well.
His immediate supervisor, Dean Lapcewich, was
frequently displeased with his work. When Cullom
requested a series of training opportunities to
assist him in his new position, Lapcewich
established a comprehensive training program for
Cullom and authorized him to attend training
courses. He also assigned Cullom a senior
staffing specialist who could mentor him and
provide him with on-the-job training. But despite
these efforts, Cullom continued to perform poorly
at the GS-9 level.
The VA has five ratings for employee
performance: (1) outstanding; (2) highly
successful; (3) fully successful; (4) minimally
successful; and (5) unacceptable. Under the VA’s
Merit Promotion Plan (Merit Plan), promotion is
not guaranteed. An employee must achieve a rating
of at least "fully successful" to be eligible for
promotion and must be in his present position for
at least one year. But simply being eligible does
not make advancement a sure thing. The employee
must also demonstrate the ability to perform the
duties of the next level./2
Lapcewich wanted to rate Cullom "minimally
successful" because he felt his work contained
significant and numerous errors, even after his
substantial formal and informal training. Because
of Cullom’s probationary status, a "minimally
successful" rating would most likely have
resulted in his termination. At a minimum, it
would have caused Cullom to be placed in a
Performance Improvement Program, or "PIP." This
is, in essence, a remedial program for employees
who are not performing up to standards (those who
receive a performance rating below "fully
successful"). It affords sub-par employees the
opportunity to improve or develop skills. But
this "opportunity" is double-edged. Placement in
a PIP also places the employee on probation,
subject to termination. At oral argument, the VA
pointed out that for many employees it is the
last stop before dismissal.
Fearing another EEO complaint if Cullom were to
receive the lower rating, Lapcewich’s supervisor-
-who was required to sign off on employee
evaluations--rejected Lapcewich’s proposed
"minimally successful" recommendation. He instead
directed Lapcewich to overrate Cullom as "fully
successful." Lapcewich rated Cullom accordingly
and did not advise him of the "minimally
successful" level of performance he was really
exhibiting at the GS-9 level. Lapcewich did,
however, meet with Cullom to discuss performance
standards, although Cullom refused to sign a form
indicating that he had received the standards.
The strategy of appeasement, if it can be called
a strategy, did not work. In September 1993,
Cullom filed a second EEO complaint. He alleged
that Lapcewich and other VA managers had
retaliated against him for his prior EEO
complaint by not promoting him to the level that
he had held in the Navy, GS-11. He alleged
Lapcewich knew about his Navy background, yet
"remained completely driven to make me compete
again for the grade I previously had."
In December, while Cullom’s second EEO complaint
was pending, Lapcewich gave Cullom his mid-year
performance review. As before, Lapcewich thought
Cullom was not performing at the GS-9 level. But
again, aware of Cullom’s complaint, higher
supervisors directed Lapcewich to overrate him as
"fully successful." Lapcewich did so, rather than
place Cullom in a PIP on probationary status, as
a lower rating would have required. Again,
Lapcewich did not inform Cullom of his true level
of performance. But he did tell him that he was
making too many mistakes, that his work required
too much review, and that he took too long on a
relatively minor project.
In April 1994, the VA settled Cullom’s second
complaint by agreeing to place him in a nine-
month, off-site program designed to train
"personnel interns" who were usually GS-7s.
Placing Cullom in this program was the idea of
Cullom’s EEO investigator who concluded, after
reviewing Cullom’s personnel file, that the
program would provide Cullom with basic personnel
skills (skills Cullom had contended that he did
not possess due to inadequate training). The
settlement, however, did not mention the
possibility of promotion to GS-11.
After the off-site training got underway,
Lapcewich evaluated Cullom for the most recent
rating period (which had ended shortly before
Cullom’s departure). He concluded that Cullom
still had not been performing at the GS-9 level.
Yet, for at least the third time, Lapcewich’s
superiors rejected his proposed rating of
"minimally successful" and directed him to rate
Cullom "fully successful." The undisputed motive
for overrating Cullom was to placate him so he
would not file another EEO complaint.
At the end of the off-site training in February
1995, the training supervisor concluded that
Cullom had "successfully completed" the intern
program. Although this supervisor thought that
Cullom exhibited a poor attitude and that his
work was worse than that of his (GS-7) training
partner, he nevertheless stated that Cullom would
be "an excellent candidate for placement" at a VA
facility. In April, Cullom returned to the Hines
facility.
In spite of efforts that could generously be
described as trying to give Cullom the benefit of
the doubt (for example, the VA once again
assigned him a mentor), Cullom filed a third EEO
complaint. He demanded performance standards and
a retroactive GS-11 promotion. When Cullom and
the VA were unable to resolve the complaint,
Cullom filed this lawsuit, alleging he was denied
a GS-11 promotion because of his race and in
retaliation for his prior EEO complaints.
While the lawsuit was pending, Cullom continued
to work as a GS-9, and his supervisors continued
to complain about his performance. His new
supervisor, Claire Hajduk, did not believe that
Cullom had demonstrated the ability to perform
GS-11 work, as the VA’s Merit Plan requires for
promotion. In November 1996, Hajduk nevertheless
convinced her supervisor to sign off on Cullom’s
promotion by stating that she believed it might
finally "jump-start" him to perform better and
because she would then be better able to evaluate
whether he was really unable to do GS-11 work.
Again, when rating time came around, Hajduk (like
Lapcewich before her) did not want to rate Cullom
"fully successful." But because her supervisor
would not allow a lower rating, Hajduk rated
Cullom’s performance as "fully successful" at his
new grade of GS-11.
Finally, in November 1997, Blanche Phillips, a
black female, began supervising Cullom. Cullom
continued to perform poorly in several respects,
and Phillips received numerous complaints about
his work, forcing her to reassign some of his
work. She still gave him a rating of "fully
successful," even though she knew he was
experiencing significant work-related problems.
She testified that Cullom continues to experience
such problems.
The district court dismissed Cullom’s race
discrimination claim, and his retaliation claim
was tried before a magistrate judge. The VA had
no choice but to admit that it did not follow its
normal procedures in rating Cullom, and because
Cullom had received favorable (although
undeserved) ratings, the court concluded that the
VA failed to present a non-retaliatory reason for
denying him an earlier promotion./3 Of course,
its non-retaliatory reason was that he had not
demonstrated that he was capable of performing at
the next level, but that flew in the face of the
series of formal, favorable evaluations he had
received. The district court essentially
concluded that the VA reacted to Cullom’s
litigious nature by "retaliating" against him by
giving him more than he deserved. As the district
court noted, "[b]ut for Plaintiff’s complaints to
the EEOC, he would have received the correct
performance evaluation and would have received
the feedback required in order to achieve
promotion. Instead, as a result of his activity,
he was given false evaluations and was denied a
performance improvement plan [PIP] to improve his
work performance, thereby denying him the
opportunity for promotion." Cullom, 27 F. Supp.2d
at 1096. It concluded that the VA "cannot provide
an employee with satisfactory evaluations and
then deny the same employee a promotion on the
theory that the evaluations are false." Id. at
1097.
The usual case of retaliation in violation of
Title VII occurs when an employee suffers an
adverse job action because he complained about
some form of discrimination. No doubt Cullom
filed numerous EEO complaints. And having his
promotion to GS-11 delayed can be labeled a
material adverse job action. But had VA
supervisors not "retaliated" by giving him, an
incompetent employee, undeserved favorable
treatment and evaluations (and ultimately a
promotion to GS-11), he would have likely been
demoted, placed on probation, and quite possibly
terminated. The question before us, then, is
whether it is a violation of Title VII for an
employer to in effect delay kicking someone
upstairs (with more pay and a higher grade level)
instead of kicking him down and possibly out. A
close examination of the statute reveals that
this undeniably poor policy does not violate the
Act.
II. Discussion
Subsection 3(a) of 42 U.S.C. sec. 2000e "has
been construed to prohibit an employer from
pursuing retaliatory measures . . . against an
employee for exercising his or her rights under
Title VII." Reed v. Shepard, 939 F.2d 484, 492
(7th Cir. 1991)./4 Under the statute, a
plaintiff must establish three basic elements by
a preponderance of the evidence to prove a claim
of retaliation: (1) that he opposed an unlawful
employment practice; (2) that he was the object
of adverse employment action; and (3) that the
adverse employment action was caused by his
opposition to the unlawful employment practice.
Hamann v. Gates Chevrolet, Inc., 910 F.2d 1417,
1420 (7th Cir. 1990) (citing Klein v. Trustees of
Ind. Univ., 766 F.2d 275, 280 (7th Cir. 1985)).
In order to prove causation, "the plaintiff must
demonstrate that the employer would not have
taken the adverse action ’but for’ the protected
expression." Johnson v. University of Wis.-Eau
Claire, 70 F.3d 469, 479 (7th Cir. 1995); see
also McNutt v. Board of Trustees of Univ. of
Ill., 141 F.3d 706, 709 (7th Cir. 1998) (after
1991 amendments to Civil Rights Act, plaintiff
still required to prove "but for" causation to
establish claim of retaliation). This is the
"ultimate inquiry" in evaluating a Title VII
claim. See Heerdink v. Amoco Oil Co., 919 F.2d
1256, 1261 (7th Cir. 1990). But while Title VII
prevents employers from punishing their employees
for complaining about discrimination, it does not
prevent an employer from unjustifiably rewarding
an employee to avoid a discrimination claim. See
42 U.S.C. sec. 2000e-3(a).
We review the district court’s factual finding
for clear error. Fed. R. Civ. P. 52(a). Brenner
v. Brown, 36 F.3d 18, 19 (7th Cir. 1994). "Our
scrutiny . . . is deferential, but it is not
abject." Carr v. Allison Gas Turbine Div.,
General Motors Corp., 32 F.3d 1007, 1008 (7th
Cir. 1994). "We must distinguish between a
situation in which ’we think that if we had been
the trier of fact we would have decided the case
differently and the situation in which we are
firmly convinced that we would have done so.’"
Turgeon v. Premark Intern., Inc., 87 F.3d 218,
221 (7th Cir. 1996) (emphasis in original)
(quoting Carr, 32 F.3d at 1008).
For an employee to prove retaliation, he must
demonstrate that he has suffered some sort of
adverse employment action. Ribando v. United
Airlines, Inc., 200 F.3d 507, 510 (7th Cir.
1999). But as we have often said, "not everything
that makes an employee unhappy is an actionable
adverse action." Id. at 511 (quoting Smart v.
Ball State Univ., 89 F.3d 437, 441 (7th Cir.
1996)). To be "adverse," the action "must be
’materially’ adverse, meaning more than ’a mere
inconvenience or an alteration of job
responsibilities.’" Id. at 510 (quoting Crady v.
Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d
132, 136 (7th Cir. 1993)).
Cullom variously complains about three "adverse
actions": his receipt of overly generous (and
thus inaccurate) performance evaluations, his
failure to be placed in a PIP (which would entail
probation and remedial training), and the VA’s
failure to promote him more quickly. The first
two can hardly be called "adverse actions."
Overrating an employee may be a misguided way of
avoiding controversy, but it is not an adverse
act, let alone a material one. In fact, when it
comes to performance ratings, most retaliation
claims involve a supervisor underrating a
subordinate for engaging in protected activity.
See Adusumilli v. City of Chicago, 164 F.3d 353,
359 (7th Cir. 1998). Even then, we have held that
negative job ratings, without more, are not
"adverse actions." See Smart, 89 F.3d at 442
("There is little support for the argument that
negative performance evaluations alone can
constitute an adverse employment action.");
accord Silk v. City of Chicago, 194 F.3d 788,
802-803 (7th Cir. 1999) (listing cases);
Gustovich v. AT&T Communications Inc., 972 F.2d
845, 847 (7th Cir. 1992). Given this precedent,
it would be strange to label as an "adverse
action" evaluations that an employee complains
are "too good."
Cullom also claims that his failure to be placed
in a PIP was an adverse action. Recall that such
a placement must be preceded by an unsatisfactory
rating in job performance. True, once demoted to
a PIP, an employee would receive some remedial
training, and a failure to receive training might
be an adverse action. See Pafford v. Herman, 148
F.3d 658, 667 (7th Cir. 1998). But as Cullom
acknowledges, a PIP is a remedial program for
probationary employees. The next step for
employees in PIP could very well be termination,
not promotion. The adversity of an employment
action is judged objectively, and no reasonable
person would call "adverse" an employer’s failure
to demote him to a remedial program and place him
on probation. See Brown v. Brody, 199 F.3d 446,
457 (D.C. Cir. 1999); Doe v. Dekalb County Sch.
Dist., 145 F.3d 1441, 1449 (11th Cir. 1998).
On the contrary, most employees would claim that
being placed in such a remedial program is an
adverse action. See Adusumilli, 164 F.3d at 358-
59, 363. And we have suggested that being placed
on probation could also be an adverse action. See
Smart, 89 F.3d at 442 (while negative evaluations
alone did not constitute an adverse action, if
plaintiff "had been, as she alleges, put on
probation, we might have a different case before
us."). Thus, if anything, the VA’s overly
generous job evaluations saved Cullom from
suffering two potentially "adverse actions,"
demotion and probation. Obviously, there is some
flexibility in defining an "adverse act." See
Ribando, 200 F.3d at 510. But we are not so
flexible that we will bend over backwards and
define as adverse a situation where an employer
overrates an employee, thus preventing the
employee from being placed on probation in a
remedial program that frequently leads to
termination.
Cullom leans heavily on Vaughn v. Edel, 918 F.2d
517 (5th Cir. 1990), a case of race
discrimination where the employer, out of fear of
a discrimination claim, overrated the plaintiff
(whose performance nevertheless deteriorated, and
who was eventually fired). In terms of an
"adverse action," however, Vaughn differs in two
critical respects and will not support Cullom.
First, Ms. Vaughn’s employer did not give her any
indication, either formally or informally, of her
unsatisfactory performance. Id. at 520 (Ms.
Vaughn was "not in any way formally criticized or
told anything regarding these problems"); id. at
522 ("Had her dissatisfied supervisors simply
counseled Vaughn informally, such counseling
would inevitably have indicated to Vaughn that
her work was deficient."). Second, and as a
result, it did not afford her the opportunity to
improve her performance. Id. ("Texaco did not
afford Vaughn the same opportunity to improve her
performance . . . as it did its white
employees.").
By contrast, notwithstanding his inflated
evaluations, the VA frequently advised Cullom
that his work was deficient. See Cullom, 27 F.
Supp.2d at 1091 ("Throughout the course of his
supervision of Plaintiff, Lapcewich expressed
displeasure with the quality of Plaintiff’s work
and periodically returned Plaintiff’s work with
its deficiencies highlighted."). Further, it gave
him written performance standards (id.), met with
him to discuss these standards (id. at 1092),
granted his request for a tailor-made training
program (id. at 1091), allowed him to take
seminars (id. at 1092), gave him additional,
nine-month off-site training (id.), provided him
mentors on two occasions (see, e.g., id. at
1094), and closely supervised his work (see,
e.g., id.). The VA, then, was not excluding
Cullom "from its efforts to improve efficiency"
in contravention of Title VII. Contrast Vaughn,
918 F.2d at 523. By affording Cullom particular
training and guidance, the VA actually gave him a
better chance to improve his performance. This
"special treatment" gave Cullom the opportunity
to improve his skills without having to bear the
stigma and risk the negative consequences
(probation and possible termination,
respectively) that would have accompanied a PIP.
We now turn to Cullom’s remaining claim of an
adverse action--the VA’s failure to promote him
sooner. Of course, because a failure to promote
affects the rate of pay and the accrual of leave,
denying Cullom an earlier promotion was not only
adverse, it was materially adverse. Thus, it
qualifies as an "adverse action" for purposes of
Title VII (and the VA concedes as much). See
Williams v. Pharmacia, Inc., 137 F.3d 944, 948
(7th Cir. 1998). The question is whether the
district court clearly erred in finding that
Cullom "established a causal link between his
protected expression in filing EEO complaints and
his failure to be promoted." Cullom, 27 F.
Supp.2d at 1095. According to the district court,
that link was the VA overrating Cullom as "fully
successful": he had already filed several EEO
complaints, and VA supervisors hoped to avoid
future filings by giving him inflated ratings.
Id. at 1096. For two reasons, the district court
erroneously concluded that this link showed that
Cullom’s EEO filings caused him not to be
promoted earlier.
First, the district court held that under the
Merit Plan Cullom’s fully successful performance
ratings entitled him to a promotion. Id. Thus, it
concluded, the fact that the VA did not promote
him earlier must have been because it was
retaliating against him for filing EEO
complaints. Id. at 1096-1097. This conclusion is
clearly erroneous. As the district court earlier
found (see n.2 supra), there is no entitlement to
promotion based solely on a job rating. Under the
Merit Plan, a "fully successful" rating is merely
a threshold requirement; an employee who does not
satisfy this minimum criterion is not even
eligible for promotion. If he does satisfy it, he
then has to have shown that he can perform at the
next level.
Promotion to the next higher grade in a career-
ladder is not guaranteed and is dependent on the
employee meeting all statutory and regulatory
requirements (i.e. minimum qualifications, time-
in-grade, etc.), the employee’s demonstration of
the ability to perform the duties of the next
higher graded position as determined by the
supervisor, and availability of work at the next
higher grade. No employee is eligible to receive
a career-ladder promotion if the employee has a
performance rating of record or special
performance rating of record of less than fully
successful.
Id. at 1096 (emphasis added) (setting out
relevant part of Merit Plan). Clearly, Cullom was
not performing up to par when he received his
inflated ratings, let alone up to GS-11 standards
(the district court even credited the VA’s
testimony that Cullom has exhibited significant
performance problems throughout his tenure). Id.
at 1091-1093. Given his performance history, the
district court clearly erred in holding that
Cullom’s formal ratings, by themselves, showed
that he was performing at the GS-11 level, that
he was thereby entitled to promotion, and thus
"but for" his EEO complaints, he would have been
promoted sooner. See Adusumilli, 164 F.3d at 363-
364 (holding that no rational jury could find
causation based on favorable performance
evaluations because they are "makeweight
evidence" and of "little significance" when there
is so "dramatic a discrepancy between evaluation
and performance").
While this error alone is sufficient to reverse,
we should address the more perplexing error in
this case. In order to find retaliation, the
district court had to string together a series of
events linking Cullom’s EEO filings to the delay
in his promotion. The district court attempted to
do this, but it misconstrued the last event in
the series:
But for Plaintiff’s complaints to the EEOC, he
would have received the correct performance
evaluation and would have received the feedback
required in order to achieve promotion. Instead,
as a result of his activity, he was given false
evaluations and was denied a performance
improvement plan [PIP] to improve his work
performance, thereby denying him the opportunity
for promotion.
Cullom, 27 F. Supp.2d at 1096. Recall, though,
that the "adverse action" is not Cullom’s failure
to be placed on probation in a PIP (for missing
out on this particular "opportunity for
promotion" under these circumstances does not
qualify as an adverse action); instead it is
Cullom’s failure, in fact, to be promoted
earlier. The district court’s causation analysis
thus should have continued further.
The proper chain is as follows: had it not been
for Cullom’s prior EEO activity, he would have
received accurate (lower) evaluations and been
placed in a PIP, and if he had been placed on
probation in such a program, he would have
successfully completed it and developed the
skills necessary to perform at the (next) GS-11
level. It is the last part of this chain that is
the weak link. Nothing in the record shows that
had Cullom been placed in a PIP, he would have
successfully completed it. The evidence, if
anything, indicates just the opposite: Cullom did
not even positively distinguish himself in
performing GS-7 duties at the off-site intern
training program and, for over four years, had
considerable difficulty performing GS-9 duties,
despite the substantial formal and informal
guidance and training he had received. Because
there is not substantial evidence that Cullom
would have successfully completed a PIP, he did
not establish that had he been placed on
probation in this program, he would have, after a
most circuitous route, been promoted earlier. See
Willis v. Marion County Auditor’s Office, 118
F.3d 542, 547 (7th Cir. 1997) (plaintiff failed
to produce evidence to establish causation).
Moreover, even if the record somehow showed that
Cullom would have successfully completed a
remedial PIP, that would have at best
rehabilitated Cullom’s GS-9 skills. There was
certainly no assurance, and likely little
probability, that this more elementary training
would have caused him to develop GS-11 skills.
Thus the district court incorrectly had to
presume that by being placed in a GS-9 PIP,
Cullom would have developed GS-11 skills. This
also was clear error. As to causation, then, the
evidence gives no indication that had Cullom been
rated accurately (as performing
unsatisfactorily), he would have likely been
promoted sooner. Cullom thus has not proven
retaliatory discrimination under Title VII.
III. Conclusion
The district court concluded that the VA
overrated Cullom out of concern that if it gave
him the lower rating he deserved, he would, in
effect, "retaliate" against it by filing another
EEO complaint. Cullom, 27 F. Supp.2d at 1097
("one can say that Plaintiff may have used the
EEO complaint system as an offensive weapon and a
threat"). As a policy matter, the VA’s behavior
is indefensible. It certainly would have been
better if the VA had had the fortitude to rate
Cullom accurately (although in doing so it would
have probably been risking another EEO
complaint). But Title VII liability does not turn
on ill-advised personnel decisions. Mechnig v.
Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th
Cir. 1988). And while honesty may be, as the
district court put it, "the best policy," it is
not for a federal court to say that for job
evaluations it is "the required policy." Cullom,
27 F. Supp.2d at 1090 (emphasis added). See
Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394,
1398 (7th Cir. 1997) (performance evaluations
"serve a variety of purposes, only one of which
is objective evaluation. They are also morale-
builders and motivators."). Thus overrating
Cullom so he would not be placed on probation,
while giving him substantial training and
oversight, was not "retaliatory" discrimination
under Title VII.
For the foregoing reasons, the judgment of the
district court is REVERSED and this case is REMANDED
for the district court to enter judgment in favor
of the defendant.
/1 "GS" refers to the "government scale" pay levels
"for VA employees paid on salary instead of a per
hour basis." Hughes v. Derwinski, 967 F.2d 1168,
1170 n.1 (7th Cir. 1992).
/2 The district court found that "[t]ypically, an
employee can be promoted to the next level after
fully successfully performing at the previous
level for the prescribed time period. For
instance, although not automatic, a GS-9 can be
promoted to GS-11 following a one-year period of
fully successful performance as a GS-9. In
addition to spending a year at the previous
grade, an employee must also demonstrate the
ability to perform the duties of the next highest
grade." Id. at 1096 (emphasis added).
/3 An employee can establish his employer’s intent
to retaliate either directly or indirectly (the
latter way by using the McDonnell Douglas burden-
shifting method). Miranda v. Wisconsin Power &
Light Co., 91 F.3d 1011, 1015 (7th Cir. 1996).
Cullom proceeded under the McDonnell Douglas
framework. After trial, the various presumptions
and burdens of the framework fall out, and the
fact-finder is left with determining whether the
plaintiff has established the ultimate issue of
intentional retaliation. United States Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
713-716 (1983); St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 510-511 (1993). The district court
here erred in sticking with McDonnell Douglas
after trial, but its findings are clear, and
Cullom was able to present his case; thus, we can
review whether he established the ultimate issue.
Contrast Aikens, 406 U.S. at 717 (case had to be
remanded due to district court’s requirement that
plaintiff use only direct evidence to prove
discriminatory intent).
/4 "It shall be an unlawful employment practice 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 this subchapter,
or because he has made a charge, testified,
assisted, or participated in any manner in an
investigation, proceeding, or hearing under this
subchapter." 42 U.S.C. sec. 2000e-3(a).