In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3131
JOHN G ACEK,
Plaintiff-Appellant,
v.
A MERICAN A IRLINES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 3968—Suzanne B. Conlon, Judge.
A RGUED JUNE 9, 2010—D ECIDED JULY 15, 2010
Before P OSNER, W OOD , and H AMILTON, Circuit Judges.
P OSNER, Circuit Judge. A former baggage handler for
American Airlines filed this diversity suit against the
airline for retaliatory discharge in violation of the Illinois
Workers’ Compensation Act, 820 ILCS 305/4(h). The
district court granted summary judgment for the airline,
precipitating this appeal, which involves the applica-
bility of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
03 (1973), to a suit based on state law but litigated
in federal court.
2 No. 09-3131
The plaintiff sprained the middle finger of his left hand
at work on December 22, 2005, while lifting a bag, and a
doctor at the airport’s medical clinic told him to wear
a splint on the finger and do only light work until he
recovered. Later another doctor at the clinic told him not
to lift anything with his left hand. He called in sick on
December 29 and an airline “attendance manager” phoned
him to find out what was wrong. He didn’t answer or
return the call, though she had left a message. Her super-
visor began harboring suspicions of the plaintiff because
it was the holiday season (when workers are tempted
not to work), and so the airline hired a detective agency
to check up on him. He called in sick the following two
days as well, and on the second day was videotaped by
a detective. The videotape showed the plaintiff running
errands over a three-hour period, lifting and carrying
grocery bags with both hands, and not wearing the
splint. Later—but before learning about the surveillance—
the plaintiff told the airline that he had been absent on
December 29 through 31 because of the flu. Later still
he said he hadn’t had the flu but had stayed off work
because his finger was bothering him—a claim in ten-
sion with his having been observed lifting and carrying
groceries with both hands and not wearing his splint. So
he was fired.
He didn’t file a workers’ compensation claim till years
later. But when he had first reported the injury a claim
file had been opened by the airline’s administrator of
workers’ claims; and a discharge motivated by such
an injury report is a retaliatory discharge under Illinois
No. 09-3131 3
workers’ compensation law. Hinthorn v. Roland’s of Bloom-
ington, Inc., 519 N.E.2d 909, 913 (Ill. 1988).
It seems unlikely that an airline would fire a baggage
handler merely because he sprained a finger and might
seek workers’ compensation, since worse injuries to
baggage handlers are common. See Sahika Vatan Korkmaz
et al., “Baggage Handling in an Airplane Cargo Hold:
An Ergonomic Intervention Study,” 36 Int’l J. Indus.
Ergonomics 301 (2006); Geoff Dell, “The Causes and Pre-
vention of Baggage Handler Back Injuries: A Survey of
Airline Safety Professionals,” Safety Science Monitor,
http://ssmon.chb.kth.se/vol1/v1i3art3.pdf (visited June 21,
2010). But plausible or not, no reasonable jury could find
that the airline had fired the plaintiff because its claims
administrator had opened a file on the injury rather
than because it believed that he had lied about having
the flu and had disobeyed the doctor’s orders to wear a
splint on the injured finger and not lift anything with
that hand.
We should consider whether this conclusion might be
altered by whether the framework for deciding an em-
ployer’s motion for summary judgment in a retaliatory-
discharge case governed by Illinois law is supplied by
federal law, which is to say by McDonnell Douglas, or by
state law. The question has arisen repeatedly in this circuit,
see McCoy v. Maytag Corp., 495 F.3d 515, 521-22 (7th Cir.
2007); Carter v. Tennant Co., 383 F.3d 673, 677-78 (7th Cir.
2004); Borcky v. Maytag Corp., 248 F.3d 691, 696 n. 5 (7th Cir.
2001); Bourbon v. Kmart Corp., 223 F.3d 469, 473-77 (7th Cir.
2000) (concurring opinion), but we have ducked it be-
4 No. 09-3131
cause the lawyers ignored it or the answer would not have
changed the outcome. It is time we answered the question.
It is hard on the district judges for the court of appeals to
allow a conflict in the rules that govern summary judgment
to persist. It requires them to choose between the rules
(when they would yield opposing results) without guid-
ance, or, as a matter of prudence, to apply both rules in
every case and hope the outcome will be the same under
both. So let us choose.
In Clemons v. Mechanical Devices Co., 704 N.E.2d 403, 407-
08 (Ill. 1998), the Supreme Court of Illinois rejected the
McDonnell Douglas framework for cases of retaliatory
discharge for making a workers’ compensation claim. Cf.
Jordan v. Clay’s Rest Home, Inc., 483 S.E.2d 203, 207 (Va.
1997). It did so because it was unwilling to “expand
the tort of retaliatory discharge by reducing plaintiff’s
burden of proving the elements of the tort,” one of
which is that the workers’ compensation claim (or poten-
tial claim) was the cause of the plaintiff’s being fired. 704
N.E.2d at 408.
In McEwen v. Delta Airlines, Inc., 919 F.2d 58 (7th Cir.
1990), another diversity case, we had held years earlier
that if the rule in Illinois was, as the plaintiff argued in
that case, that a plaintiff in a retaliatory-discharge case
could defeat summary judgment however weak his
prima facie case, nevertheless the McDonnell Douglas
rule would govern. The employer in McEwen presented
evidence of a lawful reason for the discharge, and the
plaintiff did not rebut it. That defeated her case under
McDonnell Douglas. But it would have done so under
No. 09-3131 5
Illinois procedural law as well, since the evidence, uncon-
tradicted as we said, precluded an inference of retalia-
tion. We know from the Clemons decision, decided after
McEwen, that the Illinois rule is not as was argued to us
in McEwen. More important, the passage we quoted
from Clemons makes clear that the rule adopted in that
case (rejecting McDonnell Douglas) is grounded in sub-
stantive rather than procedural principles—in a desire
as we said to assimilate retaliatory discharge to other
torts. And so in the post-Clemons case of McCoy v.
Maytag Corp., supra, 495 F.3d at 522, we treated the ap-
plicability of McDonnell Douglas to diversity cases gov-
erned by the Illinois law of retaliatory discharge as open.
(“We leave the decision regarding ‘ “what the prima
facie case of retaliation is in the Seventh Circuit” ’ for
another day.” Id.)
Snead v. Metropolitan Property Ins. & Casualty Co., 237
F.3d 1080 (9th Cir. 2001), is similar to McCoy. Although
the court discussed at length the applicability of the
McDonnell Douglas test to a case governed by Oregon
law, it was for the purpose of showing that, since the
application of McDonnell Douglas yielded the same
result that applying Oregon’s test would have done,
there could be no objection to applying the federal
rule. See id. at 1090-94. Unanswered was the question
whether, if a state adopts a procedural rule that differs
from the federal procedural rule, and does so for reasons
of substantive policy (in the present case, to bring
about uniformity in proving tort cases), the federal
courts are required to apply the state rule in a case gov-
6 No. 09-3131
erned by state substantive law if applying the state
rule rather than the federal one might alter the outcome
of the litigation.
Suppose McDonnell Douglas were applicable to this
case; then a worker who had filed a workers’ compensa-
tion claim, and who had proved that his work was other-
wise satisfactory and that he (and no worker who
didn’t file such a claim) was fired, would be entitled to
summary judgment unless the employer advanced a
reason for having fired him that the worker could not
show was merely a pretext. Borcky v. Maytag Corp., supra,
248 F.3d at 697 n. 6; Bourbon v. Kmart Corp., supra, 223
F.3d at 473. The plaintiff would thus have won without
ever directly confronting the question whether his filing
a workers’ compensation claim was the cause of his
being fired, even though such a showing would be neces-
sary in any other tort case.
The concurring opinion in Bourbon v. Kmart Corp., supra,
223 F.3d at 475-77, pointed out that some cases of retalia-
tory discharge have required proof of causation while
purporting to apply the McDonnell Douglas framework.
See also Stone v. City of Indianapolis Public Utilities Division,
281 F.3d 640, 642-44 (7th Cir. 2002). We can put that
complication to one side, though it helps explain why
the choice of standards will rarely affect the outcome of
a case. We know that Illinois requires proof of causation,
and that can make a difference. For suppose that in a
case governed by McDonnell Douglas the employer fails
to offer any reason for having fired the plaintiff. An
inference would arise that the reason was the unlawful
No. 09-3131 7
one alleged by the plaintiff. Yet in some cases the reason
might be unknown to the employer (the actual firing
having been done by a subordinate who may have left
the company or be unwilling to cooperate in its investiga-
tion) or the employer might be unwilling to reveal the
real reason because it would disclose an illegal or
unethical or otherwise embarrassing practice (nepotism,
for example, or blackmail) though one unrelated to
the discrimination alleged in the suit. Wallace v. SMC
Pneumatics, Inc., 103 F.3d 1394, 1399 (7th Cir. 1997). Then
the plaintiff would win under McDonnell Douglas
without more, but under the Illinois rule he would have
to prove that the alleged discrimination was the cause
of his being fired. So the choice between the federal
McDonnell Douglas approach and the state Clemons ap-
proach may make a difference in at least some cases
governed by Illinois law, and it is a difference that
will favor plaintiffs if McDonnell Douglas is applied in
preference to Clemons.
Under the Erie doctrine, federal courts in diversity
cases (and any other cases in which state law supplies the
rule of decision) apply state “substantive” law but fed-
eral “procedural” law. E.g., Gasperini v. Center for Humani-
ties, 518 U.S. 415, 427 (1996); Mayer v. Gary Partners & Co.,
29 F.3d 330 (7th Cir. 1994); Esfeld v. Costa Crociere, S.P.A.,
289 F.3d 1300, 1306 (11th Cir. 2002). A substantive law is
one motivated by a desire to influence conduct outside
the litigation process, such as a desire to deter accidents,
while a procedural law is one motivated by a desire
to reduce the cost or increase the accuracy of the litiga-
tion process, regardless of the substantive basis of the
8 No. 09-3131
particular litigation. Thomas v. Guardsmark, LLC, 487 F.3d
531, 537 (7th Cir. 2007); Barron v. Ford Motor Co., 965 F.2d
195, 199 (7th Cir. 1992); Sims v. Great Am. Life Ins. Co.,
469 F.3d 870, 882-83 (10th Cir. 2006). If an ostensibly
procedural rule of state law is confined to a particular
substantive area of law, this suggests that it probably
was motivated by substantive concerns and therefore
should be applied by the federal court in a case gov-
erned by state law. Bourbon v. Kmart Corp., supra, 223 F.3d
at 475 (concurring opinion); Herremans v. Carrera Designs,
Inc., 157 F.3d 1118, 1123 (7th Cir. 1998); S.A. Healy Co. v.
Milwaukee Metropolitan Sewerage Dist., 60 F.3d 305, 310
(7th Cir. 1995), and cases cited there; CRST Van Expedited,
Inc. v. Werner Enterprises, Inc., 479 F.3d 1099, 1111 (9th
Cir. 2007); Trierweiler v. Croxton & Trench Holding Corp.,
90 F.3d 1523, 1539-41 (10th Cir. 1996).
McDonnell Douglas, unlike the rule that places the
burden of proving an affirmative defense on the de-
fendant, is not a general rule of procedure, applied re-
gardless of the nature of the case. Initially it was limited
to cases of employment discrimination (which includes
retaliatory discharge, since employment discrimination
just means basing an employment decision on an
unlawful ground), though it has since been adapted for
use in other types of discrimination case as well. Elkhatib
v. Dunkin Donuts, Inc., 493 F.3d 827, 829-30 (7th Cir. 2007)
(racial discrimination against a franchisee); Kormoczy
v. Secretary of HUD, 53 F.3d 821, 823-24 (7th Cir. 1995)
(housing discrimination based on family status); Lindsay
v. Yates, 498 F.3d 434, 438-39 (6th Cir. 2007) (racial discrim-
ination in housing); Lindsey v. SLT Los Angeles, LLC, 447
No. 09-3131 9
F.3d 1138, 1144-45 (9th Cir. 2006) (refusal, on racial
grounds, to enter into a contract); Christian v. Wal-Mart
Stores, Inc., 252 F.3d 862, 867-73 (6th Cir. 2001) (racial
discrimination in treatment of a customer); Mercado-
Garcia v. Ponce Federal Bank, 979 F.2d 890, 893 (1st Cir.
1992) (racially motivated denial of credit). It’s designed
to make it easier for plaintiffs to withstand summary
judgment in discrimination cases, in the belief that “a
discrimination suit (unlike, for instance, an action for
negligence or breach of contract), puts the plaintiff in
the difficult position of having to prove the state of mind
of the person making the employment decision. Further-
more, unlike some other torts, in which state of mind
can be inferred from the doing of the forbidden act,
the employer’s state of mind cannot be inferred solely
from the fact of the adverse employment action . . . .
To make matters somewhat easier for plaintiffs in em-
ployment discrimination suits, the Supreme Court, in
McDonnell Douglas Corp. v. Green, developed a presump-
tion that supplemented—but did not replace—the tradi-
tional framework.” Wright v. Southland Corp., 187 F.3d
1287, 1289-90 (11th Cir. 1999) (citations and footnote
omitted); see also United States Postal Service Bd. of Gover-
nors v. Aikens, 460 U.S. 711, 716 (1983); Stone v. City
of Indianapolis Public Utilities Division, supra, 281 F.3d at
643; Collier v. Budd Co., 66 F.3d 886, 890 (7th Cir. 1995);
Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th
Cir. 1997).
Illinois, however, doesn’t want to give plaintiffs in
retaliatory discharge cases governed by state law that
leg up; it doesn’t want to modify the conventional princi-
10 No. 09-3131
ples of tort law. That is a substantive judgment, one that
a state is free to make in areas governed by state law,
whether we think it wise or unwise. In most cases
of employment discrimination the state and federal
standards for summary judgment will be materially the
same and the federal judges’ greater familiarity with the
McDonnell Douglas doctrine will provide a compelling
reason to apply it. But when a retaliatory discharge
case governed by Illinois law is litigated in a federal
court, the federal court must apply the standard of the
state law to a motion for summary judgment, and not the
federal standard, because the standards are materially
different and the difference is rooted in a substantive
policy of the state.
We are confirmed in this conclusion by the Supreme
Court’s very recent decision in Gross v. FBL Financial
Services, Inc., 129 S. Ct. 2343 (2009). The question was
whether the rule of Price Waterhouse v. Hopkins, 490 U.S.
228 (1989), shifting the burden of proving causation in
Title VII cases from plaintiff to defendant, should also
govern cases under the Age Discrimination in Employ-
ment Act. The Supreme Court in Gross said no, thus
treating the burden-shifting rule not as a substantively
neutral rule of procedure but as a rule limited to a par-
ticular statute, in that case Title VII. McDonnell Douglas
has a broader domain of applicability, at least as under-
stood by the lower federal courts, but still a domain
defined by a substantive category, namely discrimination.
So the plaintiff in this case could not have prevailed
merely by proving that the reasons given by the airline
No. 09-3131 11
for firing him were unworthy of belief; and in any event
he presented no credible evidence that they were.
A FFIRMED.
7-15-10