Weekly Case Digests - November 5 - November 9, 2018.

Byline: WISCONSIN LAW JOURNAL STAFF

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Curtis K. Hall v. Nancy A. Berryhill

Case No.: 17-2628

Officials: BAUER, KANNE, and SCUDDER, Circuit Judges.

Focus: ALJ Error Disability

While loading chemicals onto a truck, Curtis Hall felt a sharp pain in his back. This back pain formed the basis of his application for disability insurance benefits. An administrative law judge denied his application, and a district court upheld that determination. On appeal, Hall contends that the ALJ improperly discounted his treating physician's opinion and discredited his own testimony. Because substantial evidence supports the ALJ's decision, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Kelley Donley v. Stryker Sales Corporation

Case No.: 17-1195

Officials: MANION, SYKES, and HAMILTON, Circuit Judges.

Focus: Title VII Violation Retaliation Claim

Kelley Donley sued her former employer, Stryker Sales Corporation, for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e3. She argues that Stryker fired her in retaliation for filing an internal complaint against a sales manager who had sexually harassed another employee. The district court granted summary judgment for Stryker, finding that Donley did not offer evidence supporting a causal link between her harassment complaint and Stryker's decision to fire her. Applying the familiar standard for summary judgment, we must give Donley as the non-moving party the benefit of conflicts in the evidence and any reasonable inferences in her favor. Under that standard, we find a genuine issue of material fact about the reason Stryker fired her. We therefore reverse the judgment and remand for trial.

Our account of the facts here does not vouch for the objective truth of every detail but applies the summary-judgment standard to the evidence, and there are some key disputed facts. In 2010, Donley began working as the corporate-accounts director for Stryker, a medical-equipment manufacturer and retailer. She repeatedly failed to submit her expense reports, however, and was demoted to clinical manager.

On appeal, Donley argues that the suspicious timing of the investigation could convince a reasonable factfinder that Thompson and Ferschweiler decided to fire her in retaliation for filing the internal complaint. She has offered evidence that both Thompson and Ferschweiler knew about the photo- graphs before the August 2014 investigation. Neither took any disciplinary action against her until after she reported the other manager for sexual harassment. She points to Stryker's response to her EEOC charge. Stryker said that Thompson saw the photographs at the team meeting in Vail. That evidence is helpful to Donley, both in contradicting Stryker's defense in the lawsuit and also in suggesting that Thompson did not think Donley's actions in Vail warranted her firing, at least initially.

Stryker counters that the EEOC statement should not be admissible as evidence against it. Stryker contends that this court has been "reluctant to give substantial weight to a position taken in adversary proceedings before the Department [of Human Services]." See McCoy v. WGN Cont'l Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992). In McCoy an employer accused of age discrimination asserted conflicting positions in administrative proceedings and federal court. We concluded that the discrepancy was not evidence of "per se pretext" be- cause parties in administrative forums are influenced by different factors and incentives that may not exist in federal court. Id. at 37374.

While such comparisons often present factual issues for juries to decide, we agree with Stryker that in this case, Donley and the fired regional sales manager were too different fort his comparison to defeat summary judgment, at least on the record now before us.Donley and the sales manager reported to different supervisors and were subject to different standards. The manager occupied a more senior position than Donley. Without additional information about the nature and circumstances of the sexual-harassment complaint, the outcome of the internal investigation, and other mitigating and aggravating factors, we could not say that Donley and the sales manager engaged in misconduct of similar gravity so as to justify the comparison.

For these reasons, we REVERSE the grant of summary judgment for defendant and REMAND for further proceedings consistent with this opinion.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Solomon Smith, Jr.,

Case No.: 16-3575

Officials: WOOD, Chief Judge, and SYKES and HAMILTON, Circuit Judges

Focus: Sentencing Supervised Release

Solomon Smith pleaded guilty to two counts of filing fraudulent federal tax returns. His appeal concerns only the supervised release portion of his sentence. He objects to two discretionary conditions imposed by the judge: one that forbids "excessive use" of alcohol, and one that obliges him to submit to visits from his probation officer at any reasonable time. Those visits may occur at his home, workplace, or any reasonable location that the officer designates. Smith, a teetotaler who stands convicted of tax fraud, views those conditions as unwarranted by his crime or character and ill-suited to the purposes of supervised release. He also asserts that a ban on excessive alcohol use is impermissibly vague.

Although there may be some substance to Smith's complaints, the procedural history of this case complicates matters. After taking time to review the visitation condition, Smith's attorney told the district court that it was reasonable. In so doing, the attorney waived Smith's present objection that the court failed to provide an adequate rationale in support of the condition. As for the alcohol condition, a procedural error by the district court creates a problem, but one that we can fix on appeal. At Smith's sentencing hearing, the district court purported to adopt, by reference to the presentence investigative report (PSR), a condition forbidding "excessive use" of alcohol. Importantly, the PSR explicitly defined the term "excessive use" to mean use that produces a blood alcohol concentration (BAC) in excess of 0.08%. Perhaps not coincidentally, that is the level used by the State of Illinois for purposes of its driving laws. See 625 ILCS 5/11-501(a)(1). But that objective benchmark was not mentioned in either the court's oral pronouncement of the sentence or its later written judgment.

The limitation in the PSR thus fell by the wayside, and the undefined term "excessive use" that is currently in the judgment is both vague and, for a non-drinker, unjustified without some explanation. Nonetheless, we conclude that remand is unnecessary, because we find no other reversible error in the conditions of supervised release and we can amend the judgment so that the definition of "excessive use" reflects the court's evident intent to incorporate the BAC of 0.08%. We affirm the district court's judgment as corrected.

Affirmed

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