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Washington v. Ill. Dep't of Revenue

United States Court of Appeals for the Seventh Circuit

October 26, 2004, Argued ; August 22, 2005, Decided

No. 03-3818


 [*659]  EASTERBROOK, Circuit Judge. Between 1984 and 2000, Chrissie Washington worked from 7 a.m. until 3 p.m. instead of the standard 9-to-5 schedule at the Illinois Department of Revenue. The earlier hours allowed her to care for her son, who has Down syndrome, when he arrived home. By 1995 Washington had been promoted to Executive Secretary I. Over the next few years some of her duties were reassigned to others. Believing that this was the result of race discrimination, she filed a formal charge with state and federal officials in June 1999. That charge, she maintains, led supervisors to rescind the flex-time schedule on which her son depended.

A senior manager demanded that she work from 9 to 5 and, when she refused,  [**2]  her position was abolished. She was assigned to another Executive Secretary I post with a different supervisor and required to apply anew for a flex-time schedule. When that accommodation was refused, she took vacation or sick leave each day from 3 p.m. to 5 p.m. until those benefits were exhausted. In August 2000 she took an unpaid leave of absence that lasted until January 2001, when she returned to work for a different supervisor who allowed her to work a 7-to-3 schedule. She contends in this suit under Title VII of the Civil Rights Act of 1964 that the agency moved her to a 9-to-5 schedule in retaliation for her earlier charge of discrimination. See 42 U.S.C. § 2000e-3(a). The parties agreed to have a magistrate judge resolve their dispute. See 28 U.S.C. § 636(c). He granted summary judgment for the agency because, he concluded, Washington had not established even a prima facie case of retaliation. She could not do so, the judge ruled, because a change of work hours, while salary and duties remain the same, is not an "adverse employment action." See Grube v. Lau Industries, Inc., 257 F.3d 723, 729 (7th Cir. 2001); [**3]  Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996). And without an "adverse employment action" there can be no violation of Title VII, the court concluded.

Washington wants us to hold that an "adverse employment action" is unnecessary in retaliation suits, though it is essential (she allows) in litigation asserting discrimination with respect to wages, hours, or conditions of employment. She relies on decisions saying that proof of an "adverse employment action" is unnecessary in litigation under § 2000e-3(a), which deals with retaliation, because that section is "broader" than § 2000e-2(a), which deals with discrimination in the terms and conditions of employment. See, e.g., Firestine v. Parkview Health System, Inc., 388 F.3d 229, 235 (7th Cir. 2004); Herrnreiter v. Chicago Housing Authority, 315 F.3d 742, 745 (7th Cir. 2002). The employer relies on decisions of other panels saying that an "adverse employment action" is essential to both kinds of claims. See, e.g., Hudson v. Chicago Transit Authority, 375 F.3d 552, 559-61 (7th Cir. 2004); Little v. Illinois Department of Revenue, 369 F.3d 1007, 1011 (7th Cir. 2004); [**4]  Stone v. Indianapolis, 281 F.3d 640, 644 (7th Cir. 2002). Decisions of other circuits likewise can be aligned on each side. Compare Passer v. American Chemical Society, 290 U.S. App. D.C. 156, 935 F.2d 322, 331-32 (D.C. Cir. 1992) (plaintiff need not [*660]  show an adverse change in pay or working conditions), with Nelson v. Upsala College, 51 F.3d 383, 388-89 (3d Cir. 1995), and Bass v. Bd. of County Comm'rs, 256 F.3d 1095, 1118 (11th Cir. 2001).

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420 F.3d 658 *; 2005 U.S. App. LEXIS 17977 **; 96 Fair Empl. Prac. Cas. (BNA) 545; 86 Empl. Prac. Dec. (CCH) P42,049


Subsequent History: On remand at, Motion denied by Washington v. Ill. Dep't of Revenue, 2006 U.S. Dist. LEXIS 7067 (C.D. Ill., Feb. 10, 2006)

Prior History:  [**1]  Appeal from the United States District Court for the Central District of Illinois. No. 01-CV-3300. Byron G. Cudmore, Magistrate Judge.


retaliation, adverse employment action, decisions, conditions, discriminatory, vulnerability

Labor & Employment Law, Discrimination, Retaliation, General Overview, Workers' Compensation & SSDI, Administrative Proceedings, Judicial Review, Coverage, Actions Against Employers, Retaliatory Discharge Actions, Actionable Discrimination, Title VII Discrimination, Employment Relationships, At Will Employment, Definition of Employees, Scope & Definitions, Employees & Independent Contractors