Hasan, Syed M. A. v. LABR

Court Case Details
Court Case Opinion

In the

United States Court of Appeals

For the Seventh Circuit


Nos. 04-3030, 04-3157, 04-3836




























Intervening Respondent.


Petition to Review Decision and Order

of Administrative Review Board.

ARB Case No. 03-3030.











et al.,





Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02-C-321—Rudolph T. Randa,

Chief Judge.


Nos. 04-3030, 04-3157, 04-3836
























Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:03-cv-0758-RLY-WTL—Richard L. Young,















Before P

, C

, and W


Circuit Judges.




Circuit Judge. We have consolidated for decision




three appeals, all involving issues of liability for retalia-

tion that concern the applicable legal standard. In the first

case, Syed Hasan’s retaliation claim under the Energy

Reorganization Act, 42 U.S.C. § 5851, filed initially with the

Occupational Safety and Health Administration, was dis-

missed by an appellate board in the Department of Labor.

He charged that an engineering firm, Sargent & Lundy, had

refused to hire him in retaliation for his reporting that the

firm was covering up safety problems at a project on which

Hasan had been working for another firm.

The parties agree that the same standard for establishing

a prima facie case of retaliation that is used in employment

discrimination statutes such as Title VII is appropriate in

Nos. 04-3030, 04-3157, 04-3836


retaliation cases brought under the Energy Reorganization

Act, even though the procedure under that Act is adminis-
trative rather than judicial. The standard is defined in


v. City of Indianapolis Public Utilities Division, 281 F.3d 640 (7th
Cir. 2002); see also

Luckie v. Ameritech Corp., 389 F.3d 708,

Hudson v. Chicago Transit Authority, 375

714 (7th Cir. 2004);

F.3d 552, 559 (7th Cir. 2004). We explained in

Stone that the

plaintiff in a retaliation case has two ways of establishing a

prima facie case. One “is to present direct evidence (evi-

dence that establishes without resort to inferences from cir-

cumstantial evidence) that he engaged in protected activity

(filing a charge of discrimination) and as a result suffered

the adverse employment action of which he complains.” 281
F.3d at 644. The second, “the adaptation of


Douglas [McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)]

to the retaliation context, requires the plaintiff to show that

after filing the charge only he, and not any similarly situated

employee who did not file a charge, was subjected to an ad-

verse employment action even though he was performing

his job in a satisfactory manner. If the defendant presents no

evidence in response, the plaintiff is entitled to summary

judgment. If the defendant presents unrebutted evidence of

a noninvidious reason for the adverse action, he is entitled
to summary judgment. Otherwise there must be a trial.”


The quoted passage articulates the second method of es-

tablishing a prima facie case in a case in which an employee

is fired or otherwise subjected to an adverse employment

action, such as a demotion. But with a slight change of

words, it is equally applicable to a case such as this in which

the plaintiff is complaining about not being hired. His

burden is to show that after filing the charge that he claims

provoked the retaliation, only he, and not any similarly situ-

ated job applicant who did not file a charge, was not hired

even though he was qualified for the job for which he was


Nos. 04-3030, 04-3157, 04-3836

Koszola v. Board of Education, 385 F.3d 1104, 1110


(7th Cir. 2004);

Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir.

2002). It is doubtful whether Hasan was qualified for the job

for which he was turned down, but even if he was, there is

substantial evidence to support the board’s conclusion that

Sargent & Lundy had, and acted on, legitimate,

nonpretextual reasons for turning him down. His petition

for review is therefore denied.

In our third case, which we take up out of order because

it is much like the first, the plaintiff, Watson, an instructor

at a training center, was fired, ostensibly for taking food

intended for the students at the center but really, she claims,

because she’d filed a charge that her manager had sexually

harassed her eight months before. The district court granted

summary judgment for the employer. Watson failed under
both approaches set forth in

Stone. She had tried to prove

discrimination directly, but by the flawed method of

post hoc

ergo propter hoc—after [the charge of sexual harassment] and

therefore because of it. It is true that when one event

invariably follows closely in time and space upon another,

we tend to posit a causal relation, meaning that we are

confident that the next time we observe the first event we’ll

observe the second right afterwards. But besides the space

of four months between the sexual-harassment charge and
Watson’s termination, see

Bilow v. Much Shelist Freed

Denenberg Ament & Rubenstein, P.C., 277 F.3d 882, 895 (7th
Cir. 2001);

Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918-

19 (7th Cir. 2000), and the fact that no evidence was pre-

sented of a pattern of terminations following the filing of

charges, the theft of food that followed the charge was her

second such theft and she had been reprimanded for the

first with no effect. From these facts, which were all that

Watson had, no reasonable jury could infer that her filing

the charge was responsible for her being fired.

Nos. 04-3030, 04-3157, 04-3836


As for the second method of establishing a prima facie

case of retaliation, she failed at the threshold by presenting

no evidence that similarly situated employees (repetitive

food thieves) were treated more leniently than she was.
Hudson v. Chicago Transit Authority, supra, 375 F.3d at 561;
Peele v. Country Mutual Ins. Co., 288 F.3d 319, 330 (7th Cir.

Patterson v. Avery Dennison Corp., 281 F.3d 676, 680

(7th Cir. 2002);

Perez v. Texas Department of Criminal Justice,

Humenny v. Genex Corp.,

395 F.3d 206, 213 (5th Cir. 2004);

390 F.3d 901, 906 (6th Cir. 2004);

Tolen v. Ashcroft, 377 F.3d

879, 882 (8th Cir. 2004). So the judgment for the defendants

in this case is affirmed.

In our second case, the plaintiff, Harris, a state prisoner,

had filed a grievance with the prison authorities in which he

accused one of the guards of having tampered with his

typewriter. The authorities investigated the accusation, found

it to be groundless, and punished Harris for lying about

staff in violation of Wis. Admin. Code § DOC 303.271.

Harris contends that the punishment was in retaliation for

his exercise of a First Amendment right. Prisoners’ griev-
ances, unless frivolous,

Herron v. Harrison, 203 F.3d 410, 415

(6th Cir. 2000), concerning the conditions in which they are

being confined are deemed petitions for redress of griev-
ances and thus are protected by the First Amendment.


v. City of New York, 210 F.3d 79, 87 (2d Cir. 2000); Thaddeus-X
v. Blatter
, 175 F.3d 378, 391 (6th Cir. 1999); Bradley v. Hall, 64
F.3d 1276, 1279 (9th Cir. 1995); see also

Turner v. Safley, 482

U.S. 78, 84 (1987);

Johnson v. Avery, 393 U.S. 483 (1969);

DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000); Babcock v.
, 102 F.3d 267, 274-75 (7th Cir. 1996). Harris’s claim

fails, however, because the defendants presented uncon-

tradicted evidence that they punished him not because he

tried to exercise free speech but because his accusation was

a lie; and if as we must assume this was their true motive,


Nos. 04-3030, 04-3157, 04-3836

there was no retaliation. He alleges other acts of retaliation

as well, such as being transferred to a less desirable cell, but

if retaliatory they were not retaliation for filing a grievance

or engaging in other constitutionally protected activity. His

other claims have insufficient merit to warrant discussion.

The judgment for the defendants in his case too is affirmed.

But we shall take this opportunity to clarify the require-

ments for proving causation in a retaliation case. As is well

settled in the context of employment discrimination, a

plaintiff who complains that he was retaliated against for

exercising his right of free speech need not prove that, had

it not been for that exercise, the adverse employment action

that he is charging as retaliation would not have occurred.

All he need prove is that his speech was a “motivating fac-

tor” in the employer’s decision to take the adverse action.
Mt. Healthy City School District Board of Education v. Doyle,
429 U.S. 274, 287 (1977);

Spiegla v. Hull, 371 F.3d 928, 941-42

(7th Cir. 2004);

Smith v. Dunn, 368 F.3d 705, 708 (7th Cir.

Washington v. County of Rockland, 373 F.3d 310, 320-21


(2d Cir. 2004);

Lewis v. City of Boston, 321 F.3d 207, 218-19

Arnett v. Myers, 281 F.3d 552, 560 (6th Cir.

(1st Cir. 2003);

2002). If the employee leaps that hurdle, the burden shifts to

the employer to show that he would have taken the action

anyway, even if his heart had been pure. See, besides the
cases just cited,

McGreal v. Ostrov, 368 F.3d 657, 672 (7th Cir.

Duffy v. McPhillips, 276 F.3d 988, 991 (8th Cir. 2002);


Anderson v. Burke County, 239 F.3d 1216, 1219 (11th Cir.

2001). We cannot think of a reason why a stricter standard

for proof of causation should apply when the plaintiff is a

prisoner rather than an employee. A prisoner has less

freedom of speech than a free person, but less is not zero,

and if he is a victim of retaliation for the exercise of what

free speech he does have, he should have the same right to
a remedy as his free counterpart. Cf.

Turner v. Safley, supra,

482 U.S. at 84.

Nos. 04-3030, 04-3157, 04-3836


But what exactly is a “motivating factor”? The cases, be-

ginning with

Mt. Healthy, tend to treat the term as if it were

self-evident. Perhaps it is, but some amplification may be


A motivating factor is a factor that weighs in the defen-

dant’s decision to take the action complained of—in other

words, it is a consideration present to his mind that favors,
that pushes him toward, the action. See

Boyd v. Illinois State

Police, 384 F.3d 888, 895 (7th Cir. 2004); Ostad v. Oregon Health
Sciences University
, 327 F.3d 876, 884-85 (9th Cir. 2003);
Merkle v. Upper Dublin School Dist., 211 F.3d 782, 795 (3d Cir.

2000). It is a, not necessarily the, reason that he takes the

action. Its precise weight in his decision is not important.

We can distinguish three cases: (1) The improper reason,

such as the plaintiff’s having exercised his right of free

speech, weighed so heavily in the defendant’s mind that

he would have punished the plaintiff even if there was no

legitimate reason to do so. (2) The improper reason may

have tipped the balance: the defendant had a legitimate

reason to punish the plaintiff, but it was too weak a one to

have triggered the action; it was the additional, improper

reason that made the difference. (3) The improper reason

may have been present to the defendant’s mind as some-

thing favoring the action he took, but have weighed so

lightly in comparison with other factors that it exerted no

influence at all on his decision.

In any of these cases, once having demonstrated the pres-

ence of an improper motive the plaintiff will have made out
his prima facie case of causation; that is

Mt. Healthy. In the

second case, the defendant has no rebuttal: the plaintiff has

proved that had it not been for the improper motive, the

defendant would not have taken the action against the

plaintiff. In the third case, the defendant has a good re-

buttal: he would for sure have acted even if he had not had


Nos. 04-3030, 04-3157, 04-3836


the improper motive. In the first case, the defendant

have a good rebuttal, for he may be able to show that he had

a legitimate reason for the action that was so compelling that

it would have caused him to take the same action even if he
had not harbored the improper motive.

Nieves v. Board of

Education, 297 F.3d 690, 693 (7th Cir. 2002); Gooden v. Neal, 17
F.3d 925 (7th Cir. 1994);

Pennington v. City of Huntsville, 261

Matima v. Celli, 228 F.3d

F.3d 1262, 1268-69 (11th Cir. 2001);

68, 80-81 (2d Cir. 2000). If he can prove this, he is not liable

despite his impure heart.

A true Copy:



Clerk of the United States Court of

Appeals for the Seventh Circuit


Referenced Cases

  1. Lou Ann Merkle v. Upper Dublin School District Upper Dublin Township Police Department Margaret Thomas Clair Brown
  2. David H. Ostad v. Oregon Health Sciences University
  3. 95 Cal. Daily Op. Serv. 6644 v. Frank Hall
  4. Perez v. TDCJ Inst Division
  5. David Duffy v. L. Jane McPhillips
  7. Alfred L. Stone v. City of Indianapolis Public Utilities Division
  8. Diane Smith v. Stephanie Dunn
  9. Robert Hudson v. Chicago Transit Authority
  10. Rose Nieves v. Board of Education of the City of Chicago
  11. Nancy Spiegla v. Major Eddie Hull
  12. Patricia Peele v. Country Mutual Insurance Co.
  13. Moses Boyd, Jr. v. Illinois State Police
  14. Curtis Sauzek and Julian Koski v. Exxon Coal Usa, Inc.
  15. James Gooden v. Michael v. Neal
  16. Anthony Dewalt v. Lamark Carter
  17. Kathleen Koszola v. Board of Education of the City of Chicago
  18. Valerie Bennett v. Mary Roberts
  19. Officer James T. McGreal v. Eric Ostrov
  20. John C. Babcock v. R.L. White and G. McDaniel
  21. Colette Luckie v. Ameritech Corporation
  22. Kim Patterson v. Avery Dennison Corporation
  23. Sharon Swarsensky Bilow v. Much Shelist Freed Denenberg Ament & Rubenstein, P.C.
  24. Walter Friedl v. City of New York
  25. Evan Washington v. County of Rockland
  26. Lekunutu Matima v. Andrea E. Celli
  27. McDonnell Douglas Corp. v. Green
  28. Johnson v. Avery
  29. Turner v. Safley
  30. Mt. Healthy City Bd. of Ed. v. Doyle
  31. Issac Lydell Herron v. Jimmy Harrison
  32. Gary Arnett v. Gary T. Myers
  33. Thaddeus-X and Earnest Bell, Jr. v. Blatter
  34. Sandra Humenny v. Genex Corporation
  35. Lewis v. City Of Boston