In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-3030, 04-3157, 04-3836
SYED M. A. HASAN,
Petitioner,
v.
UNITED STATES DEPARTMENT
OF LABOR,
Respondent,
and
SARGENT & LUNDY, LLC,
Intervening Respondent.
____________
Petition to Review Decision and Order
of Administrative Review Board.
ARB Case No. 03-3030.
KENNETH HARRIS,
Plaintiff-Appellant,
v.
JUDY SMITH, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02-C-321—Rudolph T. Randa, Chief Judge.
2 Nos. 04-3030, 04-3157, 04-3836
JACQUELINE D. WATSON,
Plaintiff-Appellant,
v.
SCOTT MARQUARDT and MANAGEMENT
& TRAINING CORP.,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:03-cv-0758-RLY-WTL—Richard L. Young, Judge.
____________
SUBMITTED FEBRUARY 15, 2005—DECIDED MARCH 14, 2005
____________
Before POSNER, COFFEY, and WOOD, Circuit Judges.
POSNER, Circuit Judge. We have consolidated for decision
three appeals, all involving issues of liability for retalia-
tion that concern the applicable legal standard. In the first
case, Syed Hasan’s retaliation claim under the Energy
Reorganization Act, 42 U.S.C. § 5851, filed initially with the
Occupational Safety and Health Administration, was dis-
missed by an appellate board in the Department of Labor.
He charged that an engineering firm, Sargent & Lundy, had
refused to hire him in retaliation for his reporting that the
firm was covering up safety problems at a project on which
Hasan had been working for another firm.
The parties agree that the same standard for establishing
a prima facie case of retaliation that is used in employment
discrimination statutes such as Title VII is appropriate in
Nos. 04-3030, 04-3157, 04-3836 3
retaliation cases brought under the Energy Reorganization
Act, even though the procedure under that Act is adminis-
trative rather than judicial. The standard is defined in Stone
v. City of Indianapolis Public Utilities Division, 281 F.3d 640 (7th
Cir. 2002); see also Luckie v. Ameritech Corp., 389 F.3d 708,
714 (7th Cir. 2004); Hudson v. Chicago Transit Authority, 375
F.3d 552, 559 (7th Cir. 2004). We explained in Stone that the
plaintiff in a retaliation case has two ways of establishing a
prima facie case. One “is to present direct evidence (evi-
dence that establishes without resort to inferences from cir-
cumstantial evidence) that he engaged in protected activity
(filing a charge of discrimination) and as a result suffered
the adverse employment action of which he complains.” 281
F.3d at 644. The second, “the adaptation of McDonnell
Douglas [McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)]
to the retaliation context, requires the plaintiff to show that
after filing the charge only he, and not any similarly situated
employee who did not file a charge, was subjected to an ad-
verse employment action even though he was performing
his job in a satisfactory manner. If the defendant presents no
evidence in response, the plaintiff is entitled to summary
judgment. If the defendant presents unrebutted evidence of
a noninvidious reason for the adverse action, he is entitled
to summary judgment. Otherwise there must be a trial.” Id.
The quoted passage articulates the second method of es-
tablishing a prima facie case in a case in which an employee
is fired or otherwise subjected to an adverse employment
action, such as a demotion. But with a slight change of
words, it is equally applicable to a case such as this in which
the plaintiff is complaining about not being hired. His
burden is to show that after filing the charge that he claims
provoked the retaliation, only he, and not any similarly situ-
ated job applicant who did not file a charge, was not hired
even though he was qualified for the job for which he was
4 Nos. 04-3030, 04-3157, 04-3836
applying. Koszola v. Board of Education, 385 F.3d 1104, 1110
(7th Cir. 2004); Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir.
2002). It is doubtful whether Hasan was qualified for the job
for which he was turned down, but even if he was, there is
substantial evidence to support the board’s conclusion that
Sargent & Lundy had, and acted on, legitimate,
nonpretextual reasons for turning him down. His petition
for review is therefore denied.
In our third case, which we take up out of order because
it is much like the first, the plaintiff, Watson, an instructor
at a training center, was fired, ostensibly for taking food
intended for the students at the center but really, she claims,
because she’d filed a charge that her manager had sexually
harassed her eight months before. The district court granted
summary judgment for the employer. Watson failed under
both approaches set forth in Stone. She had tried to prove
discrimination directly, but by the flawed method of post hoc
ergo propter hoc—after [the charge of sexual harassment] and
therefore because of it. It is true that when one event
invariably follows closely in time and space upon another,
we tend to posit a causal relation, meaning that we are
confident that the next time we observe the first event we’ll
observe the second right afterwards. But besides the space
of four months between the sexual-harassment charge and
Watson’s termination, see Bilow v. Much Shelist Freed
Denenberg Ament & Rubenstein, P.C., 277 F.3d 882, 895 (7th
Cir. 2001); Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918-
19 (7th Cir. 2000), and the fact that no evidence was pre-
sented of a pattern of terminations following the filing of
charges, the theft of food that followed the charge was her
second such theft and she had been reprimanded for the
first with no effect. From these facts, which were all that
Watson had, no reasonable jury could infer that her filing
the charge was responsible for her being fired.
Nos. 04-3030, 04-3157, 04-3836 5
As for the second method of establishing a prima facie
case of retaliation, she failed at the threshold by presenting
no evidence that similarly situated employees (repetitive
food thieves) were treated more leniently than she was.
Hudson v. Chicago Transit Authority, supra, 375 F.3d at 561;
Peele v. Country Mutual Ins. Co., 288 F.3d 319, 330 (7th Cir.
2002); Patterson v. Avery Dennison Corp., 281 F.3d 676, 680
(7th Cir. 2002); Perez v. Texas Department of Criminal Justice,
395 F.3d 206, 213 (5th Cir. 2004); Humenny v. Genex Corp.,
390 F.3d 901, 906 (6th Cir. 2004); Tolen v. Ashcroft, 377 F.3d
879, 882 (8th Cir. 2004). So the judgment for the defendants
in this case is affirmed.
In our second case, the plaintiff, Harris, a state prisoner,
had filed a grievance with the prison authorities in which he
accused one of the guards of having tampered with his
typewriter. The authorities investigated the accusation, found
it to be groundless, and punished Harris for lying about
staff in violation of Wis. Admin. Code § DOC 303.271.
Harris contends that the punishment was in retaliation for
his exercise of a First Amendment right. Prisoners’ griev-
ances, unless frivolous, Herron v. Harrison, 203 F.3d 410, 415
(6th Cir. 2000), concerning the conditions in which they are
being confined are deemed petitions for redress of griev-
ances and thus are protected by the First Amendment. Friedl
v. City of New York, 210 F.3d 79, 87 (2d Cir. 2000); Thaddeus-X
v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999); Bradley v. Hall, 64
F.3d 1276, 1279 (9th Cir. 1995); see also Turner v. Safley, 482
U.S. 78, 84 (1987); Johnson v. Avery, 393 U.S. 483 (1969);
DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000); Babcock v.
White, 102 F.3d 267, 274-75 (7th Cir. 1996). Harris’s claim
fails, however, because the defendants presented uncon-
tradicted evidence that they punished him not because he
tried to exercise free speech but because his accusation was
a lie; and if as we must assume this was their true motive,
6 Nos. 04-3030, 04-3157, 04-3836
there was no retaliation. He alleges other acts of retaliation
as well, such as being transferred to a less desirable cell, but
if retaliatory they were not retaliation for filing a grievance
or engaging in other constitutionally protected activity. His
other claims have insufficient merit to warrant discussion.
The judgment for the defendants in his case too is affirmed.
But we shall take this opportunity to clarify the require-
ments for proving causation in a retaliation case. As is well
settled in the context of employment discrimination, a
plaintiff who complains that he was retaliated against for
exercising his right of free speech need not prove that, had
it not been for that exercise, the adverse employment action
that he is charging as retaliation would not have occurred.
All he need prove is that his speech was a “motivating fac-
tor” in the employer’s decision to take the adverse action.
Mt. Healthy City School District Board of Education v. Doyle,
429 U.S. 274, 287 (1977); Spiegla v. Hull, 371 F.3d 928, 941-42
(7th Cir. 2004); Smith v. Dunn, 368 F.3d 705, 708 (7th Cir.
2004); Washington v. County of Rockland, 373 F.3d 310, 320-21
(2d Cir. 2004); Lewis v. City of Boston, 321 F.3d 207, 218-19
(1st Cir. 2003); Arnett v. Myers, 281 F.3d 552, 560 (6th Cir.
2002). If the employee leaps that hurdle, the burden shifts to
the employer to show that he would have taken the action
anyway, even if his heart had been pure. See, besides the
cases just cited, McGreal v. Ostrov, 368 F.3d 657, 672 (7th Cir.
2004); Duffy v. McPhillips, 276 F.3d 988, 991 (8th Cir. 2002);
Anderson v. Burke County, 239 F.3d 1216, 1219 (11th Cir.
2001). We cannot think of a reason why a stricter standard
for proof of causation should apply when the plaintiff is a
prisoner rather than an employee. A prisoner has less
freedom of speech than a free person, but less is not zero,
and if he is a victim of retaliation for the exercise of what
free speech he does have, he should have the same right to
a remedy as his free counterpart. Cf. Turner v. Safley, supra,
482 U.S. at 84.
Nos. 04-3030, 04-3157, 04-3836 7
But what exactly is a “motivating factor”? The cases, be-
ginning with Mt. Healthy, tend to treat the term as if it were
self-evident. Perhaps it is, but some amplification may be
helpful.
A motivating factor is a factor that weighs in the defen-
dant’s decision to take the action complained of—in other
words, it is a consideration present to his mind that favors,
that pushes him toward, the action. See Boyd v. Illinois State
Police, 384 F.3d 888, 895 (7th Cir. 2004); Ostad v. Oregon Health
Sciences University, 327 F.3d 876, 884-85 (9th Cir. 2003);
Merkle v. Upper Dublin School Dist., 211 F.3d 782, 795 (3d Cir.
2000). It is a, not necessarily the, reason that he takes the
action. Its precise weight in his decision is not important.
We can distinguish three cases: (1) The improper reason,
such as the plaintiff’s having exercised his right of free
speech, weighed so heavily in the defendant’s mind that
he would have punished the plaintiff even if there was no
legitimate reason to do so. (2) The improper reason may
have tipped the balance: the defendant had a legitimate
reason to punish the plaintiff, but it was too weak a one to
have triggered the action; it was the additional, improper
reason that made the difference. (3) The improper reason
may have been present to the defendant’s mind as some-
thing favoring the action he took, but have weighed so
lightly in comparison with other factors that it exerted no
influence at all on his decision.
In any of these cases, once having demonstrated the pres-
ence of an improper motive the plaintiff will have made out
his prima facie case of causation; that is Mt. Healthy. In the
second case, the defendant has no rebuttal: the plaintiff has
proved that had it not been for the improper motive, the
defendant would not have taken the action against the
plaintiff. In the third case, the defendant has a good re-
buttal: he would for sure have acted even if he had not had
8 Nos. 04-3030, 04-3157, 04-3836
the improper motive. In the first case, the defendant may
have a good rebuttal, for he may be able to show that he had
a legitimate reason for the action that was so compelling that
it would have caused him to take the same action even if he
had not harbored the improper motive. Nieves v. Board of
Education, 297 F.3d 690, 693 (7th Cir. 2002); Gooden v. Neal, 17
F.3d 925 (7th Cir. 1994); Pennington v. City of Huntsville, 261
F.3d 1262, 1268-69 (11th Cir. 2001); Matima v. Celli, 228 F.3d
68, 80-81 (2d Cir. 2000). If he can prove this, he is not liable
despite his impure heart.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-14-05