Humphries, Hedrick G v. CBOCS West, Inc

• Court: Court of Appeals for the Seventh Circuit
• Decided: January 10, 2007
• Docket: 05-4047
• Status: Published

Opinion

In the United States Court of Appeals For the Seventh Circuit ____________

No. 05-4047 HEDRICK G. HUMPHRIES, Plaintiff-Appellant, v.

CBOCS WEST, INC., Defendant-Appellee. ____________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03-C-3765—Charles P. Kocoras, Judge. ____________ ARGUED MARCH 28, 2006—DECIDED JANUARY 10, 2007 ____________

Before EASTERBROOK, Chief Judge, and POSNER and WILLIAMS, Circuit Judges. WILLIAMS, Circuit Judge. Hedrick Humphries filed a suit alleging claims of discrimination and retaliation under Title VII and 42 U.S.C. § 1981 against CBOCS West, Inc., based upon his discharge as an associate manager at one of defendant’s Cracker Barrel restaurants. After dismissing Humphries’s Title VII claims as procedurally barred, the district court granted summary judgment in favor of CBOCS West, Inc. (hereinafter “Cracker Barrel”), holding that Humphries could not establish his prima facie burden of showing that a similarly situated individ- ual in a non-protected class was treated more favorably. 2 No. 05-4047

We reverse the district court’s grant of summary judg- ment as to Humphries’s retaliation claim because Humphries made a sufficient showing under the indirect method to establish a prima facie case of retaliation under section 1981. We affirm the judgment as to Humphries’s discrimination claim because Humphries forfeited this claim by failing to present an adequate argument before the district court.

I. BACKGROUND The following facts are recounted in the light most favorable to Humphries, the non-movant. Humphries, an African-American male, was an associate manager at a Cracker Barrel restaurant in Bradley, Illinois. Associate managers at Cracker Barrel are supervised by a general manager, who in turn is supervised by a district manager. In this case, three general managers cycled through dur- ing Humphries’s three-year tenure: Don Sessions, Steve Cardin and Ken Dowd. His performance during his first two-and-a-half years (roughly February 1999 through mid- July 2001) was generally excellent. For instance, he re- ceived annual merit raises and bonuses, and his supervisor (Sessions) testified that he considered Humphries to be his best associate manager. Circumstances changed for Humphries when Cardin took over (as a temporary re- placement) for Sessions. According to Humphries, Cardin routinely made racially derogatory remarks, such as stating that all African-Americans are “drunk or high on drugs” or that “all Mexicans have a bunch of kids.” Humphries alleges that other employees confirmed Cardin’s inappropriate comments, and told Humphries that Cardin had stated that he was there “for the white people” and was “going to take care of the white people.” Within Cardin’s initial month of being the general manager, he issued Humphries five disciplinary reports, No. 05-4047 3

called Employee Counseling Reports (ECRs). The ECRs covered a wide range of alleged misconduct, including bank deposit shortages and inappropriate use of Gold Cards to provide complaining customers a free meal. Humphries claims that the ECRs were groundless and reflected Cardin’s racial animus. In response, in August or September 2001, Humphries complained to Cardin’s supervisor, district manager William Christensen. Christensen, however, appears not to have conducted any investigation of Humphries’s claims, contrary to Cracker Barrel policies. In September 2001, Ken Dowd became general manager (Cardin returned, as planned, to his store). Shortly there- after, Joe Stinnett, one of Humphries’s fellow associate managers, fired an African-American food server, Venis Green, because she purportedly failed to show up for a shift. Humphries complained to both Dowd and Christensen that Stinnett’s firing of Green was discrimina- tory because, among other things, Green had informed both Humphries and another associate manager that she could not work that shift. Moreover, according to Humphries, a white employee had failed to appear at work on several occasions without notice, but was not fired. Humphries also reminded Christensen of his earlier complaints regarding former-general manager Cardin. According to Humphries, Christensen berated him for “going outside the management group” (i.e., turning to Christensen, rather than Dowd, to complain) and de- manded that Humphries schedule a meeting with Dowd for the following week. This scheduled meeting never occurred because on December 5, 2001 (the day before Humphries’s scheduled meeting with Dowd), Christensen fired Humphries, based upon Stinnett’s complaint that Humphries had left the store safe unlocked during the evening—a charge that Humphries disputes. Humphries also claims that prior to 4 No. 05-4047

his firing (and before his alleged failure to lock the safe), a cashier warned him that he should watch himself because Christensen and Stinnett were “up to something.” After being informed by Stinnett that Humphries had left the safe unlocked, Christensen immediately terminated Humphries—without interviewing him or investigating the incident to determine whether Humphries had actu- ally left the safe open. Humphries subsequently brought claims of discrimina- tion and retaliation under Title VII and section 1981. The district court dismissed Humphries’s Title VII claims due to procedural deficiencies (and Humphries does not ap- peal this determination). The district court also granted summary judgment in favor of Cracker Barrel on Humphries’s section 1981 claims, finding that Humphries failed to establish his prima facie case under either the direct or indirect method. Humphries now appeals.

II. ANALYSIS A. Historical Overview of Retaliation Claims under Section 1981 Before we turn to the merits of this appeal, we must decide whether Humphries’s retaliation claim is cog- nizable under section 1981. Although Cracker Barrel failed to raise this issue in the district court, it now claims that our decision in Hart v. Transit Management of Racine, Inc., 426 F.3d 863 (7th Cir. 2005), precludes Humphries’s retaliation claim. In the normal course, when a party fails to present an argument in the trial court, it forfeits the argument on appeal. See Republic Tobacco Co. v. N. Atl. Trading Co., 381 F.3d 717, 728 (7th Cir. 2004); McKnight v. Gen. Motors Corp., 908 F.2d 104, 107-10 (7th Cir. 1990). At oral argument, counsel for Cracker Barrel explained that he did not raise this issue in the district No. 05-4047 5

court because Hart, which he contended created a change in the law in this circuit, had not yet been issued. Al- though (as we will explain later), we do not believe that Hart changed our jurisprudence regarding section 1981 retaliation claims, we will not penalize Cracker Barrel for failing to raise its argument below.1 Of course, we retain the right to consider forfeited arguments, and may choose to do so “in the interests of justice.” Mass. Bay Ins. Co. v. Vic Koenig Leasing, Inc., 136 F.3d 1116, 1122 (7th Cir. 1998); see also Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746, 749-50 (7th Cir. 1993) (holding that “[i]n the rare case in which failure to pre- sent a ground to the district court has caused no one—not the district judge, not us, not the appellee—any harm of which the law ought to take note, we have the power and the right to permit it to be raised for the first time to us”). In this instance, given that our recent Hart decision

1 We note that there is some confusion in this circuit as to whether an appellee—as opposed to an appellant—who failed to raise to a particular argument in the district court in support of his motion for summary judgment is precluded from raising new arguments in this court to affirm the district court’s ruling. Compare, e.g., Gray v. Lacke, 885 F.2d 399, 409 (7th Cir. 1989) (holding that appellees waived a claim by failing to raise it in the district court), and Baskin v. Clark, 956 F.2d 142, 146 (7th Cir. 1992) (same), with Transamerica Ins. Co. v. South, 125 F.3d 392, 399 (7th Cir. 1997) (“We certainly agree that the failure of an appellee to have raised all possible alternative grounds for affirming the district court’s original decision, unlike an appel- lant’s failure to raise all possible grounds for reversal, should not operate as a waiver. The urging of alternative grounds for affirmance is a privilege rather than a duty.” (quoting Schering Corp. v. Ill. Antibiotics Co., 89 F.3d 357, 358 (7th Cir. 1996))). We need not resolve this question because we choose to review this issue, irrespective of whether Cracker Barrel forfeited the issue or not. 6 No. 05-4047

appears to have created some confusion in the district courts and has already been misapplied in several deci- sions, it is in the interests of justice to clarify the issue of whether retaliation claims are cognizable under section 1981 (and, in so doing, clarify our ruling in Hart). See Amcast, 2 F.3d at 749-50 (reaching issue not raised be- low because it was fully briefed on appeal, rested “entirely on a pure issue of statutory interpretation, as to which the district judge’s view, while it would no doubt be interesting, could have no effect on our review, which is plenary on matters of law[, and] there is no reason to de- fer its resolution to another case. There will be no better time to resolve the issue than now.”); Mass. Bay Ins. Co., 136 F.3d at 1122 (reaching forfeited choice-of-law issue because “we clearly think it is in the interest of justice to insure that district courts conduct choice-of-law analyses when conflicts questions are presented to them”).

1. Section 1981’s Origin in the Civil Rights Act of 1866 The language codified in section 1981 derives from section 1 of the Civil Rights Act of 1866, a Reconstruction- era statute that is generally recognized as the first signifi- cant civil rights legislation enacted by Congress, and is considered the “initial blueprint of the Fourteenth Amend- ment.” Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 389 (1982); see generally Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-37 (1968) (discussing legisla- tive history and historical context of the Civil Rights Act of 1866); Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 711-22 (1989) (same); Patterson v. McLean Credit Union, 491 U.S. 164, 192-200 (1989) (Brennan, J., concurring in part and dissenting in part) (same); Robert J. Kaczorowski, Comment, The Enforcement Provisions of the Civil Rights Act of 1866: A Legislative History in Light of Runyon v. McCrary, 98 Yale L.J. 565 (1989). The No. 05-4047 7

legislative history of the Civil Rights Act of 1866 is complicated—and not without substantial interpretive disagreement. See generally George Rutherglen, The Improbable History of Section 1981: Clio Still Bemused and Confused, 2003 Sup. Ct. Rev. 303. The Civil Rights Act of 1866 was passed pursuant to section 2 of the Thirteenth Amendment, which provided Congress with the legislative power to enforce the Thirteenth Amend- ment’s prohibition on slavery. U.S. Const. amend. XIII, § 2. The Act was a direct response to the so-called “Black Codes,” a series of legislative acts by many southern (and some northern) states in protest of, and as a tacit attack upon, the recently enacted Thirteenth Amendment. The Black Codes imposed onerous legal limitations on newly- freed former slaves in an attempt to circumvent the requirements of the Thirteenth Amendment, and essen- tially continued a pattern of legal enslavement. See Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 70 (1873) (noting that following the passage of the Thirteenth Amendment, “[a]mong the first acts of legislation adopted by several of the States in the legislative bodies which claimed to be in their normal relations with the Federal government, were laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value”); see generally Robert J. Kaczorowski, Congress’s Power to Enforce Fourteenth Amendment Rights: Lessons from Federal Remedies the Framers Enacted, 42 Harv. J. on Legis. 187, 240-46 (2005) (discussing the Black Codes). In response to the states’ attempts to circumvent the requirements of the Thirteenth Amendment, section 1 of the Civil Rights Act of 1866 conferred a series of legal rights, including the right to contract, and to hold and 8 No. 05-4047

convey property, equally to citizens.2 Portions of section 1 are now codified in section 1981, which states, in pertinent part: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and prop- erty as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42. U.S.C. § 1981(a). Other portions of section 1 are now codified in section 1982, which states: All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by

2 In 1870, after ratification of the Fourteenth and Fifteenth Amendments, Congress re-enacted the Civil Rights Act of 1866 (via the Enforcement Act of 1870), and then codified it in sections 1977 and 1978 of the Revised Statutes of 1874. The 1870 re- enactment, which followed passage of the Fourteenth Amend- ment, has caused significant debate regarding whether sec- tions 1981 and 1982 apply to private actors or, instead, are limited to state actors, pursuant to the Fourteenth Amendment. Compare, e.g., Jones, 392 U.S. at 436 (concluding that “it certainly does not follow that the adoption of the Fourteenth Amendment or the subsequent readoption of the Civil Rights Act were meant somehow to limit its application to state ac- tion”), and Runyon v. McCrary, 427 U.S. 160, 168-69 n.8 (1976) (same), with Jones, 392 U.S. at 449-76 (Harlan, J., dissenting) (evaluating the legislative history and concluding that the Act was intended to reach only state actors), and Runyon, 427 U.S. at 195-205 (White, J., dissenting) (same). In any event, it is now well-settled that section 1981 applies to private actors. See Patterson, 491 U.S. at 171-76 (refusing to overturn Runyon’s determination that section 1981 applied to private conduct). No. 05-4047 9

white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. 42 U.S.C. § 1982.

2. Sullivan v. Little Hunting Park, Inc. Leads Courts To Conclude that Section 1981 Protects Against Retaliation The Supreme Court has interpreted section 1981 as providing a broad-based prohibition (and federal remedy) against racial discrimination in the making and enforcing of contracts. See, e.g., Runyon v. McCrary, 427 U.S. 160 (1976); Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459-62 (1975). The issue of what types of adverse actions are subsumed under the “make and enforce contracts” provision in section 1981 is not without complication, particularly with respect to so-called “postformation conduct” (i.e., adverse acts, such as harassment or re- taliation, that occur after an initial contractual relation- ship has been established). Before its decision in Patterson, 491 U.S. 164 (which we shall address below), the Supreme Court had not clearly determined whether section 1981 applied to retaliatory conduct. The closest it came to deciding this issue was in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969). In Sullivan, a Virginia nonprofit corporation, created to operate a community park and playground facilities for the benefit of residents, refused a proposed assignment of a membership interest to an African-American man. Id. at 234-35. The white home- owner who intended to assign his membership interest protested the corporate board’s refusal, and the board expelled him from the corporation. Id. at 235. He, along with the would-be assignee, brought suit under sections 1981 and 1982. Id. The Court initially noted the “broad and sweeping nature of the protection meant to be afforded by § 1 of the Civil Rights Act of 1866, 14 Stat. 27, from 10 No. 05-4047

which § 1982 was derived.” Id. at 237. Relying on the broad protective nature of the Civil Rights Act of 1866, the Court held that the white homeowner had standing to bring a claim under section 1982 (the companion statute to section 1981 pertaining to property rights): We turn to Sullivan’s expulsion for the advocacy of Freeman’s cause. If that sanction, backed by a state court judgment, can be imposed, then Sullivan is punished for trying to vindicate the rights of minori- ties protected by § 1982. Such a sanction would give impetus to the perpetuation of racial restrictions on property. That is why we said in Barrows v. Jackson, 346 U.S. 249, 259, 73 S. Ct. 1031, 1036, 97 L. Ed. 1586, that the white owner is at times “the only effective adversary” of the unlawful restrictive covenant. Under the terms of our decision in Barrows, there can be no question but that Sullivan has standing to maintain this action. Id. at 237. Although the Sullivan court did not explicitly use the term “retaliation” in its decision, it was clear that the white landowner’s basis for standing was that he had suffered retaliation for asserting the rights of another (i.e., he had been “punished for trying to vindicate the rights of minorities”). Id. (And, indeed, as will be discussed further below, the Supreme Court later interpreted Sullivan precisely in this manner in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005).) Following Sullivan, and prior to Patterson, the general consensus among the circuits was that section 1981 broadly prohibited discrimination in all contractual facets of the employment relationship, including “postformation” adverse acts, such as retaliation. See, e.g., Choudhury v. Polytechnic Inst. of New York, 735 F.2d 38, 42-43 (2d Cir. 1984) (retaliation cognizable under section 1981); Goff v. Cont’l Oil Co., 678 F.2d 593, 597-99 (5th Cir. 1982) (same); No. 05-4047 11

Winston v. Lear-Siegler, Inc., 558 F.2d 1266, 1268-70 (6th Cir. 1977) (same); Setser v. Novack Inv. Co., 638 F.2d 1137, 1147 (8th Cir. 1981) (same); London v. Coopers & Lybrand, 644 F.2d 811, 819 (9th Cir. 1981) (same). This court, however, did not definitively decide this issue in the pre- Patterson era. See Malhotra v. Cotter & Co., 885 F.2d 1305, 1313 (7th Cir. 1989) (noting that although “[t]here is a substantial body of court of appeals precedent” holding that section 1981 forbids retaliation, there was “nothing in this circuit”).

3. Patterson v. McLean Credit Union Narrows the Reach of Section 1981 In 1989, the Supreme Court issued its decision in Patterson, which severely curtailed the reach of section 1981 claims. The Patterson court held that section 1981 protections applied exclusively to two types of rights: the right to make contracts and the right to enforce them. 491 U.S. at 176. The first right is violated by a “refusal to enter into a contract with someone, as well as the offer to make a contract only on discriminatory terms.” Id. at 177. Importantly, however, that right “extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment.” Id. at 176. The second right, the right to enforce contracts, “does not . . . extend beyond conduct by an employer which impairs an employee’s ability to enforce through legal process his or her established contract rights.” Id. at 177- 78. Thus, section 1981’s prohibition did not include so- called “postformation” discriminatory conduct of an em- ployer, including the breach of the terms of the contract or imposition of discriminatory working conditions, such as racial harassment. Id. at 178-82. Patterson, however, was silent as to the issue of retaliation. Even though Patterson involved only racial harassment and the term “retaliation” appears nowhere in the opinion, 12 No. 05-4047

several circuits—including this one—interpreted Patterson as precluding retaliation claims under section 1981 because such employer behaviors purportedly involved now-unprotected postformation conduct. See, e.g., Gonzalez v. Home Ins. Co., 909 F.2d 716 (2d Cir. 1990); Carter v. South Cent. Bell, 912 F.2d 832, 838-41 (5th Cir. 1990); McKnight v. Gen. Motors Corp., 908 F.2d 104, 107-10 (7th Cir. 1990); Courtney v. Canyon Television & Appliance Rental, Inc., 899 F.2d 845, 849 (9th Cir. 1990); Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1535 & n.17 (11th Cir. 1990); Gersman v. Group Health Ass’n, Inc., 931 F.2d 1565 (D.C. Cir. 1991); see also Foley v. Univ. of Houston Sys., 355 F.3d 333, 339 (5th Cir. 2003) (noting that Patterson “marked a dramatic change in § 1981 juris- prudence”); but see Hicks v. Brown, 902 F.2d 630, 635-38 (8th Cir. 1990) (holding that Patterson did not address retaliation claims and should not be read as foreclosing such claims under section 1981). In the immediate after- math of Patterson, we decided Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir. 1989), in which we observed that “Patterson might be thought to foreclose any suggestion that retaliation could be actionable under” section 1981. Malhotra, 885 F.2d at 1312. Specifically, we noted that “retaliation and discrimination are separate wrongs. A white person who opposes discrimination against blacks and is fired in retaliation for doing so is not being discrimi- nated against because of his race . . . .” Id. (citations omitted). At the same time, we also observed that “it can be argued that someone who retaliates against a person who has a claim of employment discrimination that might be actionable under section 1981 . . . is interfering with the person’s ability to make or enforce contracts on the same footing with white persons and such interference could be thought itself a violation of section 1981.” Id. at 1313 (citations omitted) (emphasis in original). Of particu- lar note here, we did not decide whether Patterson defini- No. 05-4047 13

tively precluded retaliation claims, and even hinted that such claims “may well survive Patterson.” Id. In a concurring opinion in Malhotra, Judge Cudahy concluded that Patterson did not preclude retaliation claims.3 Specifically, Judge Cudahy observed that there was “little parallel between harassment and retaliation. Hence, the refusal of Patterson to countenance harass- ment claims under section 1981 has only the most super- ficial application to claims for retaliation.”4 Id. at 1314 (Cudahy, J., concurring); see also Hicks, 902 F.2d at 635- 38 (holding that Patterson applied solely to the unique context of racial harassment and did not preclude retalia- tion claims). And, in prescient comments that anticipated the Supreme Court’s result in Jackson, 544 U.S. 167, Judge Cudahy stated: A prohibition against retaliation is a necessary adjunct to the anti-discriminatory provision itself. If an em- ployee may be fired for complaining of discrimination,

3 See also Mozee v. Am. Commercial Marine Serv. Co., 940 F.2d 1036, 1053 (7th Cir. 1991) (suggesting that Patterson may not have foreclosed all retaliation claims). 4 Judge Cudahy also noted that “to the limited extent Patterson is relevant here, it would appear to support the recognition of a cause of action for retaliatory conduct” because the Patterson court recognized that section 1981’s right to “enforce contracts” prohibits efforts to “impede access to the courts or obstruct nonjudicial methods of adjudicating disputes about the force of binding obligations.” Malhotra, 885 F.2d at 1314 n.1 (citations omitted). “Clearly, when an employer punishes an employee for attempting to enforce her rights under section 1981, this conduct ‘impairs the employee’s ability to enforce her contract rights.’ ” Id. This is an intriguing argument, but one that we need not re-visit in light of our conclusion that retaliation claims are now covered under section 1981’s “make and enforce con- tracts” provision. 14 No. 05-4047

his right not to be discriminated against is surely vitiated. . . . The recognition of a right of action for retaliation under section 1981 is simply another application of a straightforward syllogism: if an employee is granted certain substantive rights against his or her employer, the employer may not punish the employee’s assertion of those rights, since this would allow the employer to take away a right to protection conferred by statute. Id. at 1314-15. Judge Cudahy’s view in Malhotra did not carry the day in this circuit during the brief post-Patterson era. Shortly thereafter, we issued our McKnight decision, where we, like most other circuits, interpreted Patterson as foreclos- ing section 1981 coverage of retaliation claims. See McKnight, 908 F.2d at 107-08; see also Von Zuckerstein v. Argonne Nat’l Lab., 984 F.2d 1467, 1471-72 (7th Cir. 1993); McCarthy v. Kemper Life Ins. Co., 924 F.2d 683, 688 (7th Cir. 1991). But see Hicks, 902 F.2d at 635-38 (holding that Patterson did not foreclose retaliation claims). In McKnight, the plaintiff brought suit under section 1981 and Title VII, claiming that his employer had discrimi- nated against him based on his race and had fired him in retaliation for complaining about the discrimination. McKnight, 908 F.2d at 107-08. Although we noted that “Patterson was a racial-harassment case rather than a discharge case,” we nonetheless held that Patterson’s “wide-ranging reexamination of section 1981 indicated (as it seems to us) that claims of racially motivated dis- charge are not actionable under that statute.” Id. at 108. Judge Fairchild, however, concurred and dissented in part from the majority’s opinion, because, in his view, Patterson “did not expressly assert that a racially dis- criminatory termination would not be a violation of § 1981.” Id. at 117. Instead, he reasoned that the analysis No. 05-4047 15

in Patterson was limited to the narrow issue of whether a change in the conditions of employment following the formation of the employment contract (specifically, racial harassment)—but not a termination—violated section 1981. Id. As a result, Judge Fairchild concluded that the right to make contracts established in section 1981 protected “the right to continue to work, in the face of racially discriminatory termination”—a result unaltered by Patterson. Id. But see Rivers v. Roadway Express, Inc., 511 U.S. 298, 312 (1994) (noting that “Patterson did not overrule any prior decision of this Court; rather, it held and therefore established that the prior decisions of the Courts of Appeals which read § 1981 to cover discrimina- tory contract termination were incorrect.” (emphasis in original)).

4. The Civil Rights Act of 1991 Supercedes Patterson Whether the majority opinion in McKnight or Judge Cudahy’s or Judge Fairchild’s reading of Patterson was correct is now irrelevant because Patterson’s influence was short-lived. Unhappy with the result issued in Patterson, Congress legislatively superceded the Patter- son decision by enacting the Civil Rights Act of 1991. See Rivers, 511 U.S. at 305-06, 305 n.5 (noting that the Civil Rights Act of 1991 was based on Congressional and Presidential disapproval of the Patterson decision); Walker v. Abbott Labs., 340 F.3d 471, 475 (7th Cir. 2003) (noting that “Congress, however, quickly responded [to Patterson] with the Civil Rights Act of 1991, which, inter alia, overruled Patterson”). The legislative history of the Civil Rights Act of 1991 makes clear that Congress was dis- satisfied with the Supreme Court’s narrow reading of section 1981, which strongly curtailed claims that had been cognizable in the pre-Patterson period. See Rivers, 511 U.S. at 306 n.6 (citing S. Rep. No. 101-315, pp. 12-14 16 No. 05-4047

(1990)). Among other things, Congress added subsection (b) to section 1981, which made clear that section 1981 was to be read broadly to include all aspects of the contractual relationship between parties, including the postforma- tion conduct, which Patterson had concluded was not actionable under section 1981: For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. 42 U.S.C. § 1981(b). And the legislative history pertain- ing to this subsection confirms that Congress intended retaliation to be included under this provision. See An- drews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1411 n.12 (11th Cir. 1998) (citing H.R. Rep. No. 40(I), 102d Cong., 1st Sess. 92 (1991), as reprinted in 1991 U.S.C.C.A.N. 549, 630, which states, in part, “[t]he list set forth in subsec- tion (b) is intended to be illustrative rather than exhaus- tive. In the context of employment discrimination, for example, this would include, but not be limited to, claims of harassment, discharge, demotion, promotion, transfer, retaliation, and hiring.” (emphasis added)). The Civil Rights Act of 1991 led several circuits to reverse course (again) and to allow retaliation claims under section 1981. See Foley v. Univ. of Houston Sys., 355 F.3d 333, 339 (5th Cir. 2003); Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998); Andrews, 140 F.3d at 1412-13; see also Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 259 (8th Cir. 1996) (listing the elements for a prima facie case of retaliation under section 1981). For instance, in Andrews, the Eleventh Circuit noted that prior to Patterson, circuits interpreting section 1981’s “make and enforce contracts” provisions had held that it “encom- passed an employee’s claims for an employer’s race-based No. 05-4047 17

retaliation during the employment contract.” 140 F.3d at 1410. It observed that while Patterson “drew into question many circuit court decisions recognizing post-hiring discrimination claims under section 1981,” the Civil Rights Act of 1991 reversed whatever limits Patterson placed on imposing liability for postformation conduct. Id. at 1410-12. As a result, the Eleventh Circuit concluded that retaliation claims remained viable under section 1981. Id. at 1412.

B. Humphries’s Retaliation Claim Is Cognizable Under Section 1981 1. We Hold that Section 1981 Protects Against Retalia- tion This is the first opportunity we have had since the enactment of the Civil Rights Act of 1991 to re-visit the issue of whether section 1981 forbids all retaliatory discharge claims.5 Cracker Barrel contends that our decision in Hart has already foreclosed retaliation claims under section 1981. See Hart, 426 F.3d at 866. This is incorrect. Unfortunately, Hart has already been cited for this inaccurate proposition. See Williamson v. Denk & Roche Builders, Inc., No. 04 C 4051, 2006 WL 1987808, at *4 (N.D. Ill. July 11, 2006) (citing Hart for the proposi- tion that “the Seventh Circuit has made clear that a retaliation claim is not viable under Section 1981”);

5 In Von Zuckerstein v. Argonne Nat’l Lab., 984 F.2d 1467, 1472 n.2 (7th Cir. 1993) we noted that the Civil Rights Act of 1991 had “overruled” Patterson, but nonetheless applied the holding of Patterson because the Civil Rights Act of 1991 did not have retroactive reach. We also noted, however, that, as a result, “this case represents one of the few in which we still apply the Patterson standards.” Id. 18 No. 05-4047

Franklin v. U.S. Steel Corp., No. 2:04 CV 246, 2006 WL 905914, at *2 (N.D. Ind. Apr. 7, 2006) (same); Welzel v. Bernstein, 436 F. Supp. 2d 110, 117 (D.D.C. 2006) (citing Hart for the proposition that this circuit, unlike other circuits, precludes retaliation claims under section 1981). Our analysis in Hart was limited to the narrow issue of whether an individual who was not the subject of dis- crimination could assert claims of retaliation for com- plaining about the discrimination of others.6 We held that section 1981 did not protect against retaliation in such circumstances. Hart, 426 F.3d at 866. But Hart has no application to the facts here, where the plaintiff is plainly asserting retaliation stemming from discriminatory acts targeting him. (And, as we shall see below, even Hart’s limited holding is no longer good law in light of the Supreme Court’s Jackson decision.) Thus, the issue before us is whether section 1981, as amended by the Civil Rights Act of 1991, applies to claims of retaliation. We hold that it does. The plain text of the statute, as amended in 1991, makes clear that section 1981 encompasses the “termination of contracts,” and there can be no doubt that a retaliatory discharge is indeed a termination of the employment contract.7 Indeed, the Supreme Court subsequently interpreted the amended provisions of section 1981 as protecting against “discrimi- natory contract terminations.” Rivers, 511 U.S. at 302

6 Our decision in Hart was initially issued as an unpublished order, but, upon motion to publish it filed by a member of the bar, the order was converted to a published opinion. 7 The at-will nature (i.e., no formal written contract and no specific terms of employment) of the plaintiff ’s employment here does not preclude the plaintiff from relying on section 1981’s provisions pertaining to contracts. See Walker, 340 F.3d at 475-77 (holding that at-will employees can state claims under sec- tion 1981). No. 05-4047 19

(stating that “Section 101 of that Act provides that § 1981’s prohibition against racial discrimination in the making and enforcement of contracts applies to all phases and incidents of the contractual relationship, including dis- criminatory contract terminations”). Now, it may be that, strictly speaking, a discriminatory “termination of con- tract” is not the same thing as a retaliatory discharge—for instance, analytically, retaliation need not have a discrimi- natory intent behind it. See Malhotra, 885 F.2d at 1312; Jackson, 544 U.S. at 185-87 (Thomas, J., dissenting). But the Civil Rights Act of 1991 dispensed with this height- ened degree of formalism, and the legislative history confirms that Congress intended retaliation to be included within section 1981. See Andrews, 140 F.3d at 1411 n.12. As a result, whatever concerns Patterson raised about the postformation nature of retaliatory discharges evapo- rated with the passage of the Civil Rights Act of 1991. See id.; Rivers, 511 U.S. at 306 n.6. But see Rivers, 511 U.S. at 309 n.8 (noting that the “legislative history of the 1991 Act reveals conflicting views about whether § 101 would ‘restore’ or instead ‘enlarge’ the original scope of § 1981”) and id. at 305 (“A legislative response does not necessarily indicate that Congress viewed the judicial decision as ‘wrongly decided’ as an interpretive matter. Congress may view the judicial decision as an entirely correct reading of prior law—or it may be altogether indifferent to the decision’s technical merits—but may nevertheless decide that the old law should be amended, but only for the future.”).

2. Our Holding Is Consistent with Jackson v. Birming- ham Board of Education, which Affirmed Sullivan’s Continuing Validity Even if the statute were unclear on this issue—after all, the specific word “retaliation” still does not appear in 20 No. 05-4047

section 19818—and without turning to the pertinent legislative history, the Supreme Court’s recent decision in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) compels the same result. In Jackson, the male coach of a girls’ high school basketball team sued the Birmingham Board of Education under Title IX of the Education Amendments of 1972, claiming that the Board retaliated against him for complaining about sex discrimi- nation in the high school’s athletic program. Id. at 171. Title IX prohibits sex discrimination by recipients of federal education funding, but, like section 1981, it con- tains no express mention of “retaliation.” Id. at 173. Instead, Title IX simply prohibits “discrimination.” The Supreme Court, however, determined that Title IX’s proscription on discrimination necessarily subsumed (and implied) acts of retaliation, which it viewed as simply different forms of discrimination: Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX’s private cause of action. Retaliation is, by defini- tion, an intentional act. It is a form of “discrimination” because the complainant is being subjected to dif- ferential treatment. Moreover, retaliation is discrimi- nation “on the basis of sex” because it is an inten- tional response to the nature of the complaint: an allegation of sex discrimination. We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this

8 Cf. 42 U.S.C. § 2000e-3(a) (Title VII) (providing that it is an “unlawful employment practice” for an employer to retaliate against an employee because he has “opposed any practice made an unlawful employment practice by [Title VII], or be- cause he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.”). No. 05-4047 21

constitutes intentional “discrimination” “on the basis of sex,” in violation of Title IX. Id. at 173-74 (citations omitted) (emphasis in original). The Jackson court relied heavily on its prior decision in Sullivan, 396 U.S. 229, where it held that section 1981’s companion statute, section 1982, which prohibits dis- crimination with respect to property rights, contained an implied prohibition against retaliation. Jackson, 544 U.S. at 176. Specifically, the Jackson court interpreted Sullivan as holding that section 1982’s general prohibition on racial discrimination, which, like section 1981, makes no men- tion of retaliation, nonetheless covered “retaliation against those who advocate the rights of groups protected by that prohibition.” Id. The Jackson court also observed that the statutory objective of preventing discrimination would be severely hampered if retaliatory practices were not also banned: “If recipients were permitted to retaliate freely, individuals who witness discrimination would be loathe to report it, and all manner of Title IX violations might go unremedied as a result.” Id. at 180 (citing Sullivan, 396 U.S. at 237). “Indeed, if retaliation were not prohibited, Title IX’s enforcement scheme would unravel.” Id. Thus, the Jackson court appears to have jettisoned our prior observation that “retaliation and discrimination are separate wrongs.” Cf. Malhotra, 885 F.2d at 1312; see Jackson, 544 U.S. at 185-87 (Thomas, J., dissenting) (noting that “[a] claim of retaliation is not a claim of discrimination on the basis of sex” and that “[r]etaliation therefore cannot be said to be discrimination on the basis of anyone’s sex, because a retaliation claim may succeed where no sex discrimination ever took place”). Instead, at least for the purpose of interpreting broad statutory discrimination prohibitions that omit specific retaliation provisions, the Supreme Court has determined 22 No. 05-4047

that retaliation is simply a different form of discrimina- tion, and one that is included within broad-based prohibi- tions of discrimination. See Jackson, 544 U.S. at 175 (distinguishing between the structure of Title VII, which includes express retaliation provisions, and Title IX’s “implied” cause of action). Moreover, the Jackson court noted that a statute targeting discrimination would necessarily be undercut if retaliatory acts evaded its purview. Id. at 180. And although Jackson directly tar- geted Title IX, there is no meaningful analytic distinction that renders the conclusion in Jackson inapplicable to section 1981.9 That is, like Title IX, section 1981 broadly prohibits discrimination (although only Title IX, enacted roughly a century after section 1981, contains the more contemporary term of “discrimination”), fails to list specific discriminatory practices, and omits specific ref- erences to retaliation. See id. at 175-76.

9 Our colleague in dissent argues that the analysis in Jackson was particularized to Title IX and thus not applicable to our discussion of section 1981. We disagree. In Jackson, the Supreme Court relied in large part upon Sullivan, a case concerning section 1982. See, e.g., Jackson, 544 U.S. at 176 (“Congress enacted Title IX just three years after Sullivan was decided, and accordingly that decision provides valuable context for under- standing the statute.”); id. at 177 (“Retaliation for Jackson’s advocacy of the rights of the girls’ basketball team in this case is discrimination on the basis of sex, just as retaliation for advocacy on behalf of a black lessee in Sullivan was discrim- ination on the basis of race.”). Therefore, Jackson’s reasoning did not depend upon features unique to Title IX, and Jackson has implications for cases involving section 1982 and its com- panion statute—section 1981. Moreover, the Jackson Court’s reliance upon Sullivan affirms Sullivan’s continuing validity. Irrespective of our impression of Sullivan’s interpretive method, then, we are bound by its holding. That holding, in part, leads us to conclude (as has every circuit to address the question) that a retaliation claim is cognizable under section 1981. No. 05-4047 23

Indeed, the fact that Title IX omitted any mention of retaliation, even though it was enacted in 1972, eight years after Title VII and its specific inclusion of retalia- tion provisions, did not trouble the Jackson court nor lead it to conclude that Congress must have intended to exclude retaliation from Title IX’s coverage. See id. To the contrary, the Court looked to its Sullivan decision (which was issued three years before the passage of Title IX) and concluded that it provided “a valuable context for under- standing” Title IX. Id. at 176. Specifically, the Court stated “it is not only appropriate but also realistic to presume that Congress was thoroughly familiar with [Sullivan] and that it expected its enactment [of Title IX] to be inter- preted in conformity with [it].” Id. (quoting Cannon v. Univ. of Chi., 441 U.S. 677, 699 (1979)). Thus, the foundation of the Jackson decision is built squarely upon the Court’s prior determination in Sullivan that section 1 of the Civil Rights Act of 1866 was in- tended as a broad prohibition on discrimination that contained an implied cause of action for retaliation. Id.; see Sullivan, 396 U.S. at 237 (“A narrow construction of the language of § 1982 would be quite inconsistent with the broad and sweeping nature of the protection meant to be afforded by § 1 of the Civil Rights Act of 1866, 14 Stat. 27, from which § 1982 was derived.”). And there can be no doubt that Sullivan’s examination of section 1982 with respect to implied prohibitions on retaliation readily applies to its companion statute, section 1981, given that sections 1981 and 1982 are simply carve-outs of the same section of the Civil Rights Act of 1866, sharing identical historical origins and concerns. See, e.g., Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 384 (1982) (noting the shared legislative history between section 1981 and its “companion” section 1982); Runyon, 427 U.S. at 170-71 (noting that the holding in Jones, 392 U.S. at 437 pertaining to section 1982 necessarily impli- 24 No. 05-4047

cated section 1981, given their shared legislative history); Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 410 U.S. 431, 440 (1973) (holding that “[i]n light of the historical interrelationship” between sections 1981 and 1982, there was no reason to construe the sections differently solely on the basis that the defendant was a private party); see also Winston v. Lear-Siegler, Inc., 558 F.2d 1266, 1270 (6th Cir. 1977) (holding that “in view of both Sections 1981 and 1982 being derived from the Civil Rights Act of 1866 and in view of the similarity in language and intent, no reason is seen not to apply the rationale of Sullivan in inter- preting Section 1981”); DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 312 n.9 (2d Cir. 1975) (same).

3. Our Holding Is Sensible and Aligned with the Weight of Authority Accordingly, we join the other circuits that have ad- dressed this issue in the post-Civil Rights Act of 1991 era—all of whom uniformly conclude that retaliation claims are cognizable under section 1981. See Foley, 355 F.3d at 339; Hawkins, 163 F.3d at 693; Andrews, 140 F.3d at 1410-11; Barge, 87 F.3d at 259. Not only is this result compelled by the Civil Rights Act of 1991 and correspond- ing Supreme Court authority, but it is also the sensible result. To hold that section 1981 allows unfettered retalia- tion is to invite wholesale circumvention (and eventual undermining) of the statute, and it would create perverse incentives for the employer to fire complainants as quickly as possible to thereby limit (or entirely avoid) damages under section 1981. See, e.g., Goff, 678 F.2d at 598 (noting that “Section 1981 would become meaningless if an employer could fire an employee for attempting to enforce his rights under that statute”). This is not an insignificant issue, as section 1981 damages often have more teeth than those available under Title VII. No. 05-4047 25

There is no traction in observing that Title VII provides a back-up or competing statutory regime to the plaintiff. See generally Randolph v. IMBS, Inc., 368 F.3d 726, 732 (7th Cir. 2004) (noting the significant overlap and differ- ences in the two statutory schemes). Although the sub- stantive overlap and procedural inconsistencies between section 1981 and Title VII animated the Court’s concerns in Patterson, Congress is not bothered by this parallel statutory scheme. See Johnson, 421 U.S. at 459 (“ ‘[T]he legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.’ In particular, Congress noted ‘that the remedies available to the individual under Title VII are co-extensive with the indiv[i]dual’s right to sue under the provisions of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and that the two procedures augment each other and are not mutually exclusive.’ ” (quoting Alexander v. Gardner-Denver Co., 415 U.S. at 48 and H.R. Rep. No. 92- 238, at 19 (1971)); see also Patterson, 491 U.S. at 201-12 (Brennan, J., concurring and dissenting in part) (citing and discussing legislative history indicating that Congress intended to maintain section 1981 and Title VII as “sepa- rate, distinct, and independent”); Randolph, 368 F.3d at 732. Nor is it our role to attempt to harmonize these statutes or seek to channel particular causes of action toward one or the other statute. Congress has unmistak- ably provided for two separate regimes to redress, in many instances, identical discriminatory practices in the employment context. The resolution of any inefficiencies resulting from the existence of two parallel (but quite different) statutory regimes that cover similar harms, but contain differing procedural requirements, limitations periods, and remedies, resides with Congress, not us. 26 No. 05-4047

4. We Overturn Hart to the Extent that it Conflicts with Sullivan and Jackson We must now briefly return to Hart, where we held that a white employee who alleged that he suffered retalia- tion for supporting his co-worker’s charge of discrimina- tion could not maintain such a claim because section 1981 “encompasses only racial discrimination on account of the plaintiff ’s race and does not include a prohibition against retaliation for opposing racial discrimination.” Hart, 426 F.3d at 866. In so holding, we relied solely on the Eleventh Circuit’s decision in Little v. United Technologies, Carrier Transicold Division, 103 F.3d 956 (11th Cir. 1997), which held that a white employee who opposed a co-worker’s racially derogatory remark could not bring a section 1981 retaliation claim because he did not contend that the employer “discriminated against him because he was white” (i.e., did not claim direct discrimination). Id. at 961. The Little decision, however, cited no authority for this proposition, nor did it provide reasoning for this declara- tion.10 Id. We likely placed too much reliance on Little, given that its holding runs squarely against the Supreme Court’s Sullivan decision, as well as the Court’s subse- quent decision in Jackson, which further solidified Sullivan’s holding. See Sullivan, 396 U.S. at 237; Jackson, 544 U.S. at 173-74; see also Warth v. Seldin, 422 U.S. 490, 514 n.22 (1975) (citing Sullivan for the proposition that sections 1981 and 1982 are examples of “exceptions” that allow parties “to raise putative rights of third parties,”

10 In addition, the Eleventh Circuit subsequently hinted that Little may conflict with its decision in Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999 (11th Cir. 1997), which held that a class of employees could proceed on a section 1981 retaliation claim based on allegations that they were fired for refusing to participate in an employer’s discrimination against non-white customers. See Andrews, 140 F.3d at 1412 n.14. No. 05-4047 27

including such situations where a party is “punished” for entering into a contractual relationship with an individual protected under the statute). Jackson, which was issued after Little, but while the Hart appeal was pending, made clear that Sullivan prohibits “retaliation against those who advocate the rights of groups protected” by section 1 of the Civil Rights Act of 1866. Jackson, 544 U.S. at 176. Thus, Sullivan stands for the proposition that a “white owner could maintain his own private cause of action under § 1982 if he could show that he was ‘punished for trying to vindicate the rights of minorities.’ ” Id. at 176 n.1. Aside from conflicting with Sullivan and Jackson, the Little decision is plainly the minority view among the circuits: the great weight of authority is that individuals who suffer retaliation for opposing the racial discrimina- tion suffered by others have standing to assert retaliation claims under section 1981.11

11 See, e.g., Des Vergnes v. Seekonk Water Dist., 601 F.2d 9, 14 (1st Cir. 1979) (holding that corporation had standing to bring section 1981 claim and that “to invoke § 1981 or § 1982 one need not be a member of the racial class protected by the statute and one need not even be able to identify any specific member of the class who suffered or may suffer discrimination”); DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 312 (2d Cir. 1975) (white plaintiff could bring section 1981 claim based upon allegation that his employer “ ‘forced’ him into retirement solely because he had sold his house to a black person”); Liotta v. Nat’l Forge Co., 629 F.2d 903, 906-07 (3d Cir. 1980) (summary judgment inappropriate where material issues of fact remained regarding section 1981 claim brought by plaintiff who claimed he was discharged for supporting rights of African-American co- workers); Fiedler v. Marumsco Christian Sch., 631 F.2d 1144, 1149 (4th Cir. 1980) (white student protected under section 1981 from retaliation by school because of her association with a black schoolmate); Pinkard v. Pullman-Standard, a Div. of Pullman, (continued...) 28 No. 05-4047

As a result, it is clear that our decision in Hart cannot survive scrutiny under Sullivan, as expanded by the Court in Jackson. Moreover, our decision is out-of-step with the outcomes reached in the vast majority of cases outside of our circuit. Accordingly, we overrule our hold- ing in Hart on this limited issue.12 We now hold that a plaintiff may maintain a cause of action under section

11 (...continued) Inc., 678 F.2d 1211, 1229 (5th Cir. Unit B 1982) (retaliatory discharge claim allowed under section 1981 where evidence showed plaintiff was discharged for lawful advocacy of minority and union rights); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 575 (6th Cir. 2000) (holding that it was clear under “well-settled” law that a plaintiff “need not have alleged discrimination based upon his race as an African American in order to satisfy the protected status requirement of his claims[,]” but rather plaintiff ’s advocacy on behalf of minorities was sufficient to allege retaliation under section 1981); Winston v. Lear-Siegler, Inc., 558 F.2d 1266, 1270 (6th Cir. 1977) (white plaintiff had standing under section 1981 for claim that employer fired him because he objected to discriminatory discharge of an African- American co-worker); Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1446-47 (10th Cir. 1988) (white employee fired for helping African-American co-worker file an EEOC claim could state a claim under section 1981); see also Malhotra, 885 F.2d at 1316 (Cudahy, J., concurring) (noting that “a white person who is discharged for espousing the rights of minorities could establish that the employer acted with discriminatory intent (as required to state a claim under section 1981); that the racial discrimina- tion was directed at another, rather than directly at the plaintiff, is irrelevant, since it is the plaintiff who is suffering due to the employer’s racial discrimination” and citing Sullivan and cases from other circuits in support). 12 Because this opinion overrules a prior case, it has been circulated in advance of publication to all judges of this court in regular active service pursuant to Seventh Circuit Rule 40(e). A majority did not favor a rehearing en banc on the question of overruling Hart, 426 F.3d 863. No. 05-4047 29

1981, where the plaintiff has suffered retaliation for advocating the rights of those protected under section 1981. See Jackson, 544 U.S. at 179-80.

C. Humphries Presented a Claim of Retaliation Sufficient to Survive Summary Judgment Turning to the merits of Humphries’s retaliation claim under section 1981, we generally have applied the same prima facie requirements to discrimination claims brought under Title VII and section 1981. See, e.g., Alexander v. Wis. Dep’t of Health & Family Servs., 263 F.3d 673, 682 (7th Cir. 2001) (applying same standard to Title VII and section 1981 discrimination claims); Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 940 (7th Cir. 1996) (“Al- though section 1981 and Title VII differ in the types of discrimination they proscribe, the methods of proof and elements of the case are essentially identical.”); Randle v. LaSalle Telecomms., Inc., 876 F.2d 563, 568 (7th Cir. 1989) (“It is well settled that the methods and order of proof applicable to a claim of disparate treatment under Title VII are equally availing under § 1981.”); see also Patterson, 491 U.S. at 186 (applying McDonnell Douglas framework to section 1981 claims). We see no reason to apply dif- ferent requirements between the statutes with regard to retaliation claims. See Foley, 355 F.3d at 340 n.8 (approv- ing of the same standard applied to retaliation claims under Title VII and section 1981); see also Hasan v. U.S. Dep’t of Labor, 400 F.3d 1001, 1003-04 (7th Cir. 2005) (applying Title VII prima facie requirements to retaliation cases brought under the Energy Reorganization Act); Larimer v. I.B.M. Corp., 370 F.3d 698, 702 (7th Cir. 2004) (applying Title VII prima facie requirements to retalia- tion claim under ERISA). To overcome Cracker Barrel’s motion for summary judgment, Humphries may proceed under either the 30 No. 05-4047

direct or indirect methods. See Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 728 (7th Cir. 2003) (citing Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640 (7th Cir. 2002)). Under the direct method, Humphries must pre- sent direct evidence of (1) a statutorily protected activ- ity; (2) a materially adverse action taken by the employer; and (3) a causal connection between the two. Id.; Burling- ton Northern & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415 (2006). Under the indirect method, he must show that after opposing the employer’s discriminatory prac- tice only he, and not any similarly situated employee who did not complain of discrimination, was subjected to a materially adverse action even though he was performing his job in a satisfactory manner. See Sylvester v. SOS Children’s Villages Ill., Inc., 453 F.3d 900, 902 (7th Cir. 2006); White, 126 S. Ct. at 2415. Thus, the indirect “method of establishing a prima facie case requires proof both of similarly situated employees and of the plaintiff ’s performing his job satisfactorily.” Sylvester, 453 F.3d at 902. Under the district court’s view (which, naturally, Cracker Barrel echoes on appeal), Humphries’s prima facie case failed because, among other reasons, he did not present sufficient evidence to meet the similarly situated requirement under the indirect method.13 According to Cracker Barrel, similarly situated comparators must have the same supervisors, the same job duties, the same work performance histories, and must have engaged in the same bad conduct as the plaintiff. In other words, they must be essentially identical to the plaintiff, and, under Cracker Barrel’s view, Humphries’s two comparators, Stinnett and Dowd, fail that test.

13 We need not decide whether Humphries has enough evidence under the direct method because he meets the requirements of the indirect method. No. 05-4047 31

Cracker Barrel’s view of our similarly situated require- ment is too rigid and inflexible. This requirement “should not be applied mechanically or inflexibly.” Hull v. Stoughton Trailers, LLC, 445 F.3d 949, 952 (7th Cir. 2006). True, we have sometimes stated the similarly situated requirement in the “must” terms that Cracker Barrel argues, but a more sensitive reading of our cases indicates that we have often stated that the similarly situated requirement “normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar con- duct without such differentiating or mitigating circum- stances as would distinguish their conduct or the em- ployer’s treatment of them.” Radue v. Kimberly-Clark Corp. 219 F.3d 612, 617-18 (7th Cir. 2000) (emphasis added); see also Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 644 (7th Cir. 2006); Ezell v. Potter, 400 F.3d 1041, 1049-50 (7th Cir. 2005); McDonald v. Vill. of Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004); Lucas v. Chi. Transit Auth., 367 F.3d 714, 733 (7th Cir. 2004); Appelbaum v. Milwaukee Metro. Sewerage Dist., 340 F.3d 573, 580 (7th Cir. 2003); Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 546 (7th Cir. 2002); Snipes v. Ill. Dep’t of Corr., 291 F.3d 460, 463 (7th Cir. 2002); Peele v. Country Mut. Ins. Co., 288 F.3d 319, 330 (7th Cir. 2002). In other words, we have emphasized that the similarly situated inquiry is a flexible one that considers “all relevant factors, the number of which depends on the context of the case.” Radue, 219 F.3d at 617. “As to the relevant factors, an employee need not show complete identity in comparing himself to the better treated em- ployee, but he must show substantial similarity.” Id. at 618; see also Goodwin v. Bd. of Trs. of Univ. of Ill., 442 F.3d 611, 619 (7th Cir. 2006); Ezell, 400 F.3d at 1050. In addition, our case law does not provide any “magic formula for determining whether someone is similarly 32 No. 05-4047

situated.” Chavez v. Ill. State Police, 251 F.3d 612, 636 (7th Cir. 2001) (discussing the similarly situated requirement in the equal protection context). Instead, courts should apply a “common-sense” factual inquiry—essentially, are there enough common features between the individuals to allow a meaningful comparison? Id. (citing Freeman v. Madison Metro. Sch. Dist., 231 F.3d 374, 382-83 (7th Cir. 2000) and Radue, 219 F.3d at 619). Put a different way, the purpose of the similarly situated requirement is to eliminate confounding variables, such as differing roles, performance histories, or decision-making personnel, which helps isolate the critical independent variable: complaints about discrimination. See Hull, 445 F.3d at 951-52. It is important not to lose sight of the common-sense aspect of this inquiry. It is not an unyielding, inflexible requirement that requires near one-to-one mapping between employees—distinctions can always be found in particular job duties or performance histories or the nature of the alleged transgressions. See, e.g., Ezell, 400 F.3d at 1050. Now, it may be that the degree of similarity necessary may vary in accordance with the size of the potential comparator pool, as well as to the extent to which the plaintiff cherry-picks would-be comparators, see Crawford v. Ind. Harbor Belt R.R. Co., 461 F.3d 844, 845- 46 (7th Cir. 2006), but the fundamental issue remains whether such distinctions are so significant that they render the comparison effectively useless. In other words, the inquiry simply asks whether there are sufficient commonalities on the key variables between the plaintiff and the would-be comparator to allow the type of compari- son that, taken together with the other prima facie evidence, would allow a jury to reach an inference of discrimination or retaliation—recall that the plaintiff need not prove anything at this stage. No. 05-4047 33

Establishing a prima facie case should not be such an onerous requirement: “the plaintiff ’s evidence on the prima facie case need not be overwhelming or even des- tined to prevail; rather, the plaintiff need present only ‘some evidence from which one can infer that the employer took adverse action against the plaintiff on the basis of a statutorily proscribed criterion.’ ” Bellaver v. Quanex Corp., 200 F.3d 485, 493 (7th Cir. 2000) (quoting Leffel v. Valley Fin. Servs., 113 F.3d 787, 793 (7th Cir. 1997) (also noting that the prima facie burdens “should not be applied rig- idly”)); see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (“The burden of establishing a prima facie case of disparate treatment is not onerous.”). “The prima facie case, and specifically its fourth prong, are meant to identify situations where the ‘actions taken by the employer, . . . if unexplained, are more likely than not based on consideration of impermissible factors.’ ” Collier v. Budd Co., 66 F.3d 886, 890 (7th Cir. 1995) (quoting Allen v. Diebold, Inc., 33 F.3d 674, 678 (6th Cir. 1994)). But the method of inquiry established by McDonnell Douglas was “never intended to be rigid, mechanized, or ritualistic.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). After all, our intention in establishing the similarly situated requirement was to provide plaintiffs the “boost” that the McDonnell Douglas framework intended. See Stone, 281 F.3d at 643. With this legal and policy backdrop in mind, we now turn to the would-be comparators in this case. It is clear that Stinnett was a sufficient comparator. He held the same associate manager position as Humphries, with the same duties, including responsibility for ensuring the safe was locked at all times. He shared the same supervisor (Dowd) and same ultimate decisionmaker (Christensen). Like Humphries, Stinnett had received past negative performance evaluations, including low ratings on “asset protection” categories. In addition, Humphries presented 34 No. 05-4047

competent testimony (both his own and that of a co- worker) that Stinnett—like Humphries—had used a so- called Gold Card to pay for a meal that a customer had complained about, apparently in contravention of Cracker Barrel policy. In addition, Humphries presented evidence that Stinnett’s termination of Green (the immediate precursor event connected to Humphries’s termination) was impermissible (under Cracker Barrel policy, only general managers, not associate managers, can fire employees). If anything, the record tends to suggest that Humphries generally performed slightly better than Stinnett. In addition, Humphries presented evidence that Stinnett also left the safe unlocked. Specifically, Humphries testified that Stinnett (and Dowd) routinely left the safe unlocked—the very basis for which Humphries was fired, and one which Humphries hotly disputes. Cracker Barrel seeks to distinguish Stinnett on the grounds that he left the safe unlocked during the daytime (i.e., business hours) whereas Humphries left it unlocked during the nighttime (i.e., overnight). This is a distinction without much difference. Although arguments can be made as to relative greater potential harm of leaving the safe unlocked at night, the issue remains that it was contrary to Cracker Barrel policy to leave the safe un- locked and unattended at any point during the 24-hour day. More importantly, Cracker Barrel’s argument here reflects precisely the type of formalistic argument that should not carry the day at summary judgment. Humphries was not required to show an identity of wrongful conduct: “the law is not this narrow.” Ezell, 400 F.3d at 1050. It was enough to show “similar—not identi- cal—conduct” and this surely qualifies under that stan- dard. Id. To find otherwise is to lose sight of the big- picture, common-sense perspective. Thus, in terms of job titles, work duties, supervisor, and work performance histories, Stinnett and Humphries have more than suffi- No. 05-4047 35

cient similarity. A single comparator will do; numerosity is not required.14 See, e.g., Goodwin, 442 F.3d at 619; Ezell, 400 F.3d at 1050. Cracker Barrel also contends that it established that it had a legitimate reason for firing Humphries, and that Humphries failed to show that the reason that Cracker Barrel provided for his discharge was pretext (i.e., a lie). See Forrester v. Rauland-Borg Corp., 453 F.3d 416, 417-19 (7th Cir. 2006) (discussing general requirements to establish pretext). On these issues, we agree with the district court’s determination that the record is replete with contested material facts pertaining to Humphries’s work performance and the nature of Christensen’s beliefs when he terminated Humphries. As an initial matter, Humphries contends that he did not leave the safe unat- tended, and the evidence implicating him is comprised solely of the testimony from Stinnett—the very individual Humphries targeted in his final complaint of discrimina- tion. And there is testimony in the record that a co-worker observed Stinnett and Dowd acting differently (less deferentially) toward Humphries just prior to his firing, and that this co-worker specifically warned Humphries about Stinnett and Dowd because she believed that their behavior indicated that they were “up to something to harm Humphries.” In addition, prior to firing Humphries, it appears that Christensen conducted no investigation into the veracity of Stinnett’s claim. He did not interview Humphries; he simply credited Stinnett’s story. Finally, the timing of Humphries’s firing is suspicious: he was fired one week after he complained to Christensen about discriminatory practices and one day prior to a scheduled meeting with Dowd, which, presumably would have

14 Because we conclude the Stinnett was an adequate comparator, we need not address whether Dowd fits the requisite criteria. 36 No. 05-4047

created a more elaborate (and less favorable to Cracker Barrel) documentary record of Humphries’s complaints. Finally, there was evidence in the record tending to show that similar transgressions were not sufficient to fire other similarly situated employees who did not complain of discrimination. See generally Curry v. Menard, Inc., 270 F.3d 473, 479 (7th Cir. 2001) (holding that a showing that similarly situated employees were treated differently may be enough to establish pretext). This is not to say that merely pointing to an employer’s shoddy investigatory efforts is sufficient to establish pretext. Erroneous (but believed) reasons for terminating an employee are not tantamount to pretextual reasons. See Forrester, 453 F.3d at 419; Little v. Ill. Dep’t of Revenue, 369 F.3d 1007, 1012-13 (7th Cir. 2004). But, under the circumstances here, there was sufficient other circum- stantial evidence in the record to support a reasonable inference that Humphries was “set-up” by Stinnett (in tandem with Dowd and Christensen), see Sylvester, 453 F.3d at 905, and that his purported bad act of leaving the safe unlocked was a fabrication to justify his firing. In this sense, the quality of Christensen’s investigation may have some bearing on the truthfulness of Cracker Barrel’s proferred reasons for terminating Humphries. In short, these are the sort of disputed factual issues that a jury should sort out. As a final note, on remand, Humphries will have only his claim of retaliation. We agree with the district court’s determination that he waived (forfeited would be the better term) his discrimination claim by devoting only a skeletal argument in response to Cracker Barrel’s motion for summary judgment. Although Humphries did attempt to incorporate his well-developed arguments pertaining to the retaliation claim, and there is substantial over- lap with regard to the prima facie requirements be- tween the two claims, he did nothing more. On appeal, No. 05-4047 37

however, Humphries addresses for the first time the issue of his replacement, and Cracker Barrel outlines a series of arguments as to why Humphries’s reprimands and warnings do not constitute materially adverse em- ployment actions. None of these arguments were reached by the district court nor flushed out in the briefing—this is precisely why we insist on parties raising all pertinent arguments below. Given that Humphries’s core claim is one for retaliation, there is little inequity in applying our typical forfeiture rule to this particular claim.

III. CONCLUSION For the foregoing reasons, we REVERSE the district court’s grant of summary judgment in favor of the defen- dant on Humphries’s retaliation claim, we AFFIRM the grant of summary judgment in favor of the defendant on Humphries’s discrimination claim, and we REMAND for further proceedings in accordance with this opinion.

EASTERBROOK, Chief Judge, dissenting in part. The Supreme Court held in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), that Title IX of the Education Amendments of 1972—which forbids educa- tional programs that receive federal funds from discrimi- nating on account of sex, 29 U.S.C. §1681(a)—allows the judiciary to define the word “discriminate.” The Court used that authority to curtail steps that make reports of discrimination costly to students and employees. Today 38 No. 05-4047

this court attributes to Jackson the conclusion that all federal statutes dealing with the employment relation prohibit retaliation. The Justices gave three principal reasons for their decision in Jackson. (1) The word “discrimination” has sufficient ambiguity to permit a reading that includes an anti-retaliation norm. 544 U.S. at 173-74. (2) Title IX was enacted in 1972, after anti-retaliation norms became common, making it sensible to resolve the ambiguity in favor of this reading. 544 U.S. at 176. (3) Lack of an anti- retaliation norm would make it too easy for educational programs to undermine the principal substantive rules in Title IX by getting rid of anyone who tried to enforce them. 544 U.S. at 180-81. None of these reasons applies to 42 U.S.C. §1981, the subject of today’s decision. (1) The word “discriminate” does not appear in §1981. What that statute provides is that all citizens have the same right to make and enforce contracts. How can a decision that resolves ambiguity in the word “discriminate” apply to other statutes with different language? (2) Section 1981 was enacted in 1866, long before anti-retaliation norms were created. The first mention of “retaliatory discharge” in any federal appel- late opinion came in NLRB v. Arthur Winer, Inc., 194 F.2d 370 (7th Cir. 1952), and the first use by the Supreme Court was NLRB v. Scrivener, 405 U.S. 117 (1972). (3) Lack of an anti-retaliation norm in §1981 would not hinder enforce- ment of civil rights laws, because there is a real anti- retaliation rule in Title VII of the Civil Rights Act of 1964. See 42 U.S.C. §2000e-3(a). That’s one reason why Jackson distinguished Title IX of the 1972 Act from Title VII of the 1964 Act. 544 U.S. at 175. Cf. Garcetti v. Ceballos, 126 S. Ct. 1951 (2006) (holding that there is no general anti- retaliation doctrine under 42 U.S.C. §1983). The question at issue today is not whether an employer may fire a worker who protested discrimination, but No. 05-4047 39

whether an employee may present a claim of retaliation even though he failed to file a timely charge under Title VII and engage in conciliation before turning to court. By adding an anti-retaliation rule to §1981, the majority does not craft an ancillary doctrine necessary to make the principal norm work (as the Court did in Jackson); instead it demolishes components of Title VII that Con- gress thought necessary to expedite the resolution of disputes and resolve many of them out of court. This is not the first time that a disgruntled employee has turned to §1981 after missing the deadline for litiga- tion under Title VII. The Court held in Patterson v. McLean Credit Union, 491 U.S. 164 (1989), that §1981 should be construed when possible to avoid conflict with Title VII. Today, however, the majority does exactly what Patterson forbids. It reads §1981 to have the same sub- stantive content as Title VII, but without features such as short periods of limitations that employees find incon- venient. That’s not a sound way to treat this statute, already extended far beyond its original meaning. See Runyon v. McCrary, 427 U.S. 160 (1976); Charles Fairman, VI History of the Supreme Court of the United States: Reconstruction and Reunion 1864-88 (Part One) 1207-60 (1971); Gerhard Casper, Jones v. Mayer: Clio, Bemused and Confused Muse, 1968 Sup. Ct. Rev. 89. Patterson holds that the process of judicial extension must stop. Congress can add to a law’s reach, and in 1991 it did so—but the 1991 revision does not mention “retaliation” or change the text of §1981(a), on which Humphries’s claim rests. When §1981 and Title VII have different but overlap- ping provisions (as they do, for example, with respect to damages), then the judiciary must enforce both. See, e.g., Branch v. Smith, 538 U.S. 254, 273 (2003); J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S. 124, 141-44 (2001); Randolph v. IMBS, Inc., 368 F.3d 40 No. 05-4047

726 (7th Cir. 2004). But the fact that overlapping systems may coexist does not justify creating incompatibility, as the majority does today. Section 1981 does not contain an anti- retaliation rule. When deciding whether to add such a rule to §1981, we must consider the effect that this step would have on Title VII. That’s the holding of Patterson. To the extent that my colleagues treat the 1991 legisla- tion as discarding all of Patterson, they follow an approach that was rejected in Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994), and Landgraf v. USI Film Products, 511 U.S. 244 (1994). Legislation does not “overrule” decisions of the Supreme Court; new statutes adopt new rules but leave in place existing norms that the legislation does not touch. Nothing in the Civil Rights Act of 1991 justifies reading §1981 more broadly than its (amended) text or undermining parts of Title VII that remain in force. The Court demonstrated this in Domino’s Pizza, Inc. v. McDon- ald, 126 S. Ct. 1246 (2006), which unanimously reversed a decision that had invoked the judges’ views of wise public policy to extend §1981. Domino’s Pizza shows that Patterson cannot be treated as defunct. The Supreme Court has cited Patterson favorably in 24 decisions since Landgraf and Rivers. Of these, Domino’s Pizza is the most salient because it uses Patterson’s interpretive methodology to construe §1981 as amended by the Civil Rights Act of 1991. My colleagues end up declaring that the text of §1981, its context, its history (the absence of anything like an anti- retaliation norm in 1866), its function, and the effect of an inventive reading on the operation of Title VII all are irrelevant. The rule they impute to Jackson has no moor- ings in any statute’s text or provenance. Yet that’s not at all what Jackson says; it dealt with the actual language and operation of Title IX and does not justify a language- and-history-free interpretation of all federal statutes. I do No. 05-4047 41

not think it likely that the Supreme Court, which insists that statutory language be followed even if inconvenient or jarring—see, e.g., Arlington Central School District v. Murphy, 126 S. Ct. 2455, 2463 (2006); Exxon Mobil Corp. v. Allapattah Services, Inc., 125 S. Ct. 2611, 2625-27 (2005); Dodd v. United States, 545 U.S. 353 (2005); Tyler v. Cain, 533 U.S. 656, 663 n.5 (2001)—would accept such an atextual approach. I appreciate the temptation to make every law “the best it can be,” but that is not the Supreme Court’s current mode of statutory interpretation, as Domino’s Pizza shows for §1981 in particular. Perhaps it was the approach that prevailed in 1969, when the Court decided Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969). The majority in Sullivan held that a plaintiff in litigation under 42 U.S.C. §1982 has standing to complain about retaliation, and Jackson concluded that it must have had a substantive component too. So read, Sullivan is of a piece with other decisions holding that judges may supplement statutes to make them “more effective.” See, e.g., J.I. Case Co. v. Borak, 377 U.S. 426 (1964). But Cort v. Ash, 422 U.S. 66 (1975), abandoned that approach, and since the 1970s the Court has lashed interpretation more closely to statutory text. “[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice—and it frustrates rather than ef- fectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.” Rodriguez v. United States, 480 U.S. 522, 525- 26 (1987) (emphasis in original). It is anachronistic to say that, because Sullivan engaged in a freewheeling “interpretation” of §1982, we may today take liberties with §1981. One might as well cite Borak for the proposition that “every right implies a remedy” so 42 No. 05-4047

that courts should today create a private right of action for every statute other than those that the Supreme Court addressed in Cort and its successors. Yet that is the majority’s tack. The argument goes that, because Sullivan ignored the language of §1982 and drafted an “improved” version of the statute, we are free to do the same today for §1981, its neighbor. The Supreme Court requires us to proceed otherwise. Borak dealt with §14(a) of the Securities Exchange Act of 1934, 15 U.S.C. §78n(a). It was as freewheeling in “interpreting” that law as Sullivan was with §1982. Yet the Court has held that the change of interpretive method announced in Cort applies to all other sections of the Securities Exchange Act. See Piper v. Chris-Craft Industries, Inc., 430 U.S. 1 (1977) (§14(e)); Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) (§17(a)). Borak and similar decisions from the 1960s have not been overruled, but we have been told in no uncertain terms that they must not be extended. Indeed, in Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083 (1991), the Court declined to apply Borak to a portion of §14(a) that had not been involved in Borak. So that case has been limited to a single sentence of one subsection. Why, then, may the method of Sullivan be applied to other sections of the Civil Rights Act of 1866 despite intervening precedent? There has been a sea change in interpretive method between Sullivan and today—and Patterson not only exemplifies the change but also applies it to §1981. In 1989 the Justices were invited to rely on Sullivan as a model for the interpretation of §1981. They declined. Less than a year ago, in Domino’s Pizza, the Court reiterated Patterson’s interpretive stance. Sullivan, by contrast, did not receive a mention. Yet my colleagues do not mention Domino’s Pizza. Why bypass the Supreme Court’s 2005 understanding of §1981 in favor of a 1969 understand- No. 05-4047 43

ing of §1982? We must respect our superiors’ decision to call a halt to judicial extrapolation; Domino’s Pizza rather than Sullivan exemplifies the appropriate judicial role. By relying on Sullivan, my colleagues indulge an assump- tion—that if some remedies are good, then more must be better—that has no support on today’s Supreme Court. Now if §1981 had been enacted while the freewheeling approach of Sullivan was in force, it might well be ap- propriate to adopt a goal-driven reading. To use the interpretive tools of the last 30 years to unravel a statute passed in earlier days would be to cross up the legislature. That was a point the Court made in Jackson: Title IX was enacted in 1972, and Congress may well have antici- pated that Sullivan-like construction would follow. 544 U.S. at 176. The legislators who voted for §1981 in 1866 would not have anticipated any such judicial liberties, however; and when §1981 was amended in 1991, decisions such as Cort and Rodriguez and Patterson had announced a textual approach. So when a question arises in 2006 about the meaning of this 1866/1991 legislation, our job is to apply the interpretive norms that prevailed in 1866, 1991, and today, not to take an ambiguous decision from 1969 and see how far we can run with it. Section 1981 does offer one opening for a claim in the nature of retaliatory discharge. Suppose Cracker Barrel regularly fired black employees who protest discrimina- tion in the workplace, but not protesting white employees. Then it might be appropriate to conclude that black persons do not enjoy the same right as white persons to contract with Cracker Barrel. But Humphries does not make such an argument. For all this record shows, Cracker Barrel fires every complainer, without regard to the subject of the complaint. An employer that treats everyone the same in this respect complies with §1981, so the judgment should be affirmed. 44 No. 05-4047

A true Copy: Teste:

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