Date: 10-15-2015

Case Style: John Michael Woods v. City of Berwyn

Case Number: 13-3766

Judge: Williams

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney:

Defendant's Attorney:

Description: When John Woods told a coworker
at the Berwyn Fire Department that “he wanted to
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kill somebody, all of them” and that his children were going
to “go over there” and “tune them up,” referring to his
coworkers and superiors, Fire Department Chief Denis
O’Halloran looked into the statements and eventually recommended
termination. A three-member panel for the
Board of Fire and Police Commissioners conducted a hearing
on O’Halloran’s recommendation. Woods was represented
by counsel, who gave opening and closing statements,
put on witnesses, cross-examined others, made and
won objections, and presented exhibits. After the hearing,
the Board voted to terminate Woods based largely on the
testimony of the co-worker to whom Woods made the
statement. Woods filed a complaint in federal court asserting
discrimination and unlawful retaliation and attempted to
proceed under a cat’s paw theory of liability, which applies
in employment discrimination cases when a biased subordinate
who lacks decision-making power uses the formal decision-maker
as a dupe in a deliberate scheme to trigger a discriminatory
employment action. Under Woods’s theory,
O’Halloran was the discriminatory subordinate who used
the formal decision-maker (the Board) to fire him. However,
based on the full and independent evidentiary hearing and
the Board’s almost complete reliance on the co-worker’s testimony,
any discriminatory animus by O’Halloran cannot be
the basis for the cat’s paw liability. Without that, Woods
cannot make out a prima facie case, and we affirm the grant
of summary judgment.
I. BACKGROUND
Because we are reviewing a grant of summary judgment,
we present the facts and draw all reasonable inferences in
the light most favorable to Woods, the non-moving party.
No. 13-3766 3
Nichols v. Mich. City Plant Planning Dept., 755 F.3d 594, 599
(7th Cir. 2014). Although our decision does not ultimately
turn on the events that Woods alleges were discriminatory,
we present them to give context to Woods’s case.
In January 2010, Berwyn Fire Department Lieutenant
John Woods sustained a back injury from carrying a 350-
pound heart attack victim. Woods was cleared to return to
work in April, but did not return until June because of persistent
pain. Before Woods’s return, Chief O’Halloran and
Assistant Chief Frank Simek sent him two memoranda with
instructions to complete the enclosed Family Medical Leave
Act paperwork. Simek also visited Woods’s home and reiterated
that the FMLA paperwork needed to be signed because
it revolved “around [his] status as a fireman.” Fearing
for his job’s safety, Woods signed the FMLA paperwork.
Upon Woods’s return, O’Halloran informed Woods that
he had three options: he could go on normal retirement, on
duty-related disability, or on a nonduty-related disability.
Woods said he was not interested in any of the options and,
instead, successfully bid on a position as the Fire Department’s
Training Officer. Woods later learned from his friend,
Joe Lotito, that Chief O’Halloran had asked Lotito to put his
own name on the bid list so that O’Halloran would not have
to choose Woods. Woods nonetheless began work, but reported
that the training he received was inadequate. Specifically,
he asserted that he did not get assistance in planning,
that prior lesson plans had been removed just before he
started, and that he was constantly criticized for his work.
One year later, in May 2011, Woods was participating in
an arduous fire burn training exercise on a hot day and told
O’Halloran he was “stoking the fire” to which O’Halloran
4 No. 13-3766
responded “Yeah, it’s a young man’s job, Mike.” Later that
same month, Woods met with Assistant Chief Dick Swade
and Deputy Chief Greg DiMenna who told Woods that they
wanted him to retire or that he would be fired. In a separate
conversation, Woods relayed to Deputy Chief Sam Molinaro
that Woods wanted to remain at his job, but wanted the harassment
to stop.
In a meeting later that month with Chief O’Halloran,
Woods said he wanted to leave the Training Officer’s position
because he was being harassed and not given a fair opportunity
to succeed. O’Halloran posted a bid sheet to find a
replacement. If no one signed up, the position would automatically
go to the lieutenant with the lowest seniority,
Ronald Hamilton, a friend of Woods’s, who did not want the
job.
Woods and Hamilton had a conversation one week later
on June 3. Although Woods claims the conversation focused
on Hamilton’s displeasure with the possibility of being assigned
as a Training Officer, Hamilton’s contemporaneous
notes say:
Sometime during our conversation [Woods]
stated to me that at one time he wanted to kill
somebody, all of them. He stated that his kids
asked him for the addresses, and that they
would go “over there” and “tune them up.”
Mike also stated that with all the stress he is
under that he was thinking of going back to the
psychiatrist. He also said something on the
lines of hurting himself.
No. 13-3766 5
Woods denies threatening harm to himself or anybody
else. According to Woods, Hamilton began screaming at
Woods, saying that Woods messed up his own life and now
was messing up Hamilton’s life.
Hamilton’s version of the conversation was relayed to,
among others, O’Halloran, who asked that the Berwyn police
conduct a well-being check on Woods. Four officers
went to visit Woods, who denied making any threats, and
reported that Woods was calm, polite, and in good spirits.
They concluded Woods was not a threat to himself or others
and left.
O’Halloran ordered Woods to undergo a psychological
evaluation conducted by O’Halloran’s own selected psychologist,
Dr. Anthony DeJoseph, to determine whether
Woods was homicidal or suicidal. The psychologist reported
there was no way of making a definitive determination
whether Woods made the statements to Hamilton, but that
Woods was honest and forthcoming and was not at risk of
harming himself or others. O’Halloran disregarded Dr.
DeJoseph’s report and conducted his own investigation, including
an interrogation of Woods where Woods again denied
making any threats.
On July 21, 2011, O’Halloran issued a Statement of
Charges against Woods and requested that the Berwyn
Board of Fire and Police Commissioners terminate Woods’s
employment. The Statement of Charges relayed the conversation
between Woods and Hamilton in the factual section,
and included charges for conduct unbecoming an officer,
fighting/verbal abuse, violation of Illinois’s disorderly conduct
law (720 Ill. Comp. Stat. § 5/26-1(a)(1)), and false statements
made during O’Halloran’s investigation.
6 No. 13-3766
At the hearing on the Statement of Charges, the Board
heard testimony, opening and closing statements, viewed
exhibits and ruled on objections. Woods was represented by
counsel. One week later, the Board issued a one-page ruling—without
reference to any facts or law—that Berwyn had
met its burden of establishing by a preponderance of evidence
that Woods was guilty of the charges against him and
there was cause for discharge. After twenty-three years with
the Department and at fifty-three years old, Woods was terminated.
He challenged the administrative ruling in state
court and, upon a remand for a more detailed opinion, the
Board issued an eight-page opinion. That opinion has since
been upheld as not arbitrary, capricious or unreasonable by
two courts. See Woods v. City of Berwyn, 11-ch-32916 (Cook
Cnty. Cir. Ct. Oct. 4, 2013); Woods v. City of Berwyn, 13-3450
(Ill. App. Ct. Oct. 29, 2014).
Meanwhile, Woods filed the complaint relevant to this
appeal in which he alleged, among other things, the four
counts on appeal: (1) retaliation under the Family Medical
Leave Act; (2) discrimination under the Americans with Disabilities
Act; (3) discrimination under the Age Discrimination
in Employment Act; and (4) retaliation under Illinois’s
Workers’ Compensation Act. The district court granted
summary judgment on all counts in favor of the City of
Berwyn. Woods appeals.
II. ANALYSIS
Woods argues he has presented sufficient evidence to
raise a genuine issue of material fact as to whether
O’Halloran’s discriminatory animus could be imputed to the
Board, thereby supporting a cat’s paw theory of liability. He
also argues that he presented a genuine issue of material fact
No. 13-3766 7
as to whether the Department’s and O’Halloran’s decisions
to fire him were pretextual.
As noted, we construe all facts and reasonable inferences
in the light most favorable to Woods, the non-movant. Nichols,
755 F.3d at 599. Summary judgment should be granted if
there is a genuine issue of material fact. Id. However, we
need not draw inferences that are supported by “only speculation
and conjecture.” Id. (internal quotation omitted). A factual
dispute is only “genuine” “if a reasonable jury could
find for either party.” Id. (internal quotation omitted).
Woods admits that he cannot show that the direct decision-maker,
the Board, acted with discriminatory animus.
Instead, he relies on the “cat’s paw” theory of liability. We
were the first circuit to use the phrase “cat’s paw” when discussing
a subordinate using her superior to commit a discriminatory
act in the employment discrimination context.
See Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). As
the Supreme Court noted, the phrase comes from one of Aesop’s
Fables in which a monkey induces a cat, by flattery, to
extract roasting chestnuts from the fire. Staub v. Proctor Hosp.,
562 U.S. 411, 415 n.1 (2011). The duped cat burns its paws
while getting the chestnuts, and the monkey takes them,
leaving the cat with nothing. Id. In the employment discrimination
context, the cat’s paw theory of liability applies when
“a biased subordinate who lacks decision-making power uses
the formal decision-maker as a dupe in a deliberate
scheme to trigger a discriminatory employment action.”
Matthews v. Waukesha Cnty., 759 F.3d 821, 828 (7th Cir. 2014)
(internal citations omitted); see also Staub, 562 U.S. at 419
(applying cat’s paw theory to Uniformed Services Employment
and Reemployment Rights Act).
8 No. 13-3766
In Staub, an appeal from one of our decisions, the Supreme
Court adopted the cat’s paw theory of liability and
held that it is based on tort-law concepts of proximate causation.
562 U.S. at 420. In that case, the alleged biased subordinate
submitted a disciplinary warning for Staub’s purported
violation of a company rule, which Staub alleged was false
and motivated by discriminatory animus. Id. at 413–15. Two
other co-workers stated that Staub was unreliable and, based
on that information and a review of Staub’s personnel file, a
supervisor fired him. Id. While we found there was no liability
since the subordinate was not the “singular influence” in
the firing, the Supreme Court reversed our decision. Id. at
415–16, 422–23. The decision in Staub changed the law in this
circuit. Here, we do not attempt to outline a universal
framework for post-Staub cases. The application of Staub
principles in this case is limited to these facts.
The Court stated that under a cat’s paw theory there
must be “some direct relation between the injury asserted
and the injurious conduct alleged” that is neither “too remote,
purely contingent, or indirect.” Id. at 419 . The ultimate
decision-maker’s exercise of judgment alone does not
render the subordinate’s discriminatory animus “remote” or
“purely contingent,” but instead creates an additional proximate
cause. Id. In other words, just because someone else
has to make the ultimate termination decision does not remove
the subordinate’s discriminatory animus as a proximate
cause.
However, the Court noted there are acts that can change
the subordinate’s discriminatory animus from a proximate
cause to a cause that is too remote to support cat’s paw liability.
As the Court said, even if there is an independent inves-
No. 13-3766 9
tigation, “the supervisor’s biased report may remain a causal
factor if the independent investigation takes it into account
without determining that the adverse action was, apart from the
supervisor's recommendation, entirely justified.” Id. at 421 (emphasis
added). If the ultimate decision-maker does determine
whether the adverse action is entirely justified apart
from the supervisor’s recommendation, then the subordinate’s
purported bias might not subject the employer to liability.
This is consistent with our previous holdings that “the
chain of causation can be broken if the unbiased decisionmaker
conducts a meaningful and independent investigation
of the information being supplied by the biased employee.”
Schandelmeier-Bartels v. Chi. Park Dist., 634 F.3d 372, 383 (7th
Cir. 2011). To hold otherwise would be to rule that whenever
a discriminatory subordinate makes an allegation or institutes
a charge and the plaintiff-employee is fired, there are
no steps the ultimate decision-maker could ever take to
break that chain of proximate causation. That cannot be so.
Cf. Polland v. Chertoff, 494 F.3d 1174, 1181 (9th Cir. 2007) (rejecting
argument that “any time a biased employee … sets in
motion the process that leads to an adverse employment action,
the employer would be liable, even if the employer then
conducted an entirely independent inquiry and decisionmaking
process insulated from the animus of the biased employee”).
Woods takes the position that because O’Halloran recommended
his termination and issued the Statement of
Charges, the Board’s full-scale hearing into those Charges
still does not insulate the Department’s decision because the
Charges set the wheels in motion for his termination. However,
Woods’s position is contrary to the Court’s statement
that a determination apart from the biased subordinate’s
10 No. 13-3766
recommendation can break the chain of causation. Staub, 562
U.S. at 420–21. Here, the Board’s formal and adversarial procedures
and the evidence that the Board relied on to support
its decision to terminate Woods broke the chain of causation.
The Board conducted a full trial with attorneys, opening
statement and closing arguments, direct and crossexamination
of witnesses, including Woods, objections and
the introduction of evidence. The hearing included decisions
made by the Board that went Woods’s way and others that
did not. Indeed, the Board did not just take the Statement of
Charges at face value, thereby delegating its fact-finding to
the potentially biased O’Halloran. Rather, the Board conducted
its own fact-finding proceeding. These facts weigh in
favor of finding that the Board’s hearing broke the causal
chain. See Lacks v. Ferguson Reorganized Sch. Dist. R-2, 147 F.3d
718, 725 (8th Cir. 1998) (finding that the school board’s hearing
consisting of testimony from the plaintiff and fifteen other
witnesses and a review of other documentary and video
evidence was an independent investigation sufficient to
break causation). Nonetheless, this hearing procedure does
not automatically negate the influence of the potentially biased
O’Halloran. See Staub, 562 U.S. at 420–21.
We note that because the unbiased decision-maker could
possibly rely on facts provided by the biased supervisor, a
formal adversarial procedure does not automatically break
the chain of causation. See Staub, 562 U.S. at 420–21. But, if
the employer’s procedure “results in an adverse actions for
reasons unrelated to the supervisor’s original biased action
…, then the employer will not be liable. Id. at 42. In this case,
the hearing broke the chain of causation because the record
shows that the Board did not rely on the facts presented by
No. 13-3766 11
the presumably biased O’Halloran. Instead, the Board relied
on testimony from Hamilton, who did not harbor any discriminatory
animus. The Board found in its eight-page opinion
“Lt. Hamilton’s testimony about his conversation with
Lt. Woods on June 3, 2011” was credible based on Hamilton’s
“demeanor while testifying” and that Hamilton “had no motive
or basis for lying and that his actions immediately following
his conversation with Lt. Woods were consistent with
his testimony.” All of the citations for the Board’s findings
regarding the conversation are to Hamilton’s testimony, and
it found that the threats were cause for termination.
O’Halloran did not even testify as to the contents of the conversation,
nor could he since he was not present during the
conversation. In other words, the Board made its determination
without relying on any of O’Halloran’s statements or
actions. This shows the Board was not an unwitting dupe
and did not rely on O’Halloran to reach its decision.
O’Halloran might have instituted the action, but once the
Board began its hearing, it determined that the “adverse
employment action was, apart from the supervisor’s recommendation,
entirely justified.” Staub, 562 U.S. at 421. Had the
Board relied on O’Halloran’s statements or failed to independently
determine whether the conversation with Hamilton
happened, this might be a different case. But that is not
what happened here since the Board did conduct an independent
hearing and therefore broke the chain of causation.
See, e.g., Staub, 562 U.S. at 421(“[I]f the employer’s investigation
results in an adverse action for reasons unrelated to the
supervisor’s original biased action … then the employer will
not be liable.”) Lobato v. N.M. Env’t Dept., 733 F.3d 1283, 1294
(10th Cir. 2013) (“[I]f the employer independently verifies
the facts and does not rely on the biased source—then there
12 No. 13-3766
is no subordinate bias liability” (internal citation omitted));
Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826, 836-37
(6th Cir. 2012) (finding no liability where office conducted
independent investigation including seven witness interviews
and found a violation of four work rules—only one
relying on the biased party’s report—each of which would
have supported termination); cf. McKenna v. City of Philadelphia,
649 F.3d 171, 178-79 (3d Cir. 2011) (affirming jury verdict
in favor of employee when record of disciplinary hearing
failed to show employee could call witnesses on his behalf
or cross-examine biased supervisor, and also failed to
show the content of the testimony of the other witnesses
aside from biased party).
Woods further argues the Board was not independent
and, in fact, did O’Halloran’s bidding and so any appearance
of impartiality was phony. He points to statements by
O’Halloran that only O’Halloran could fire him, that
O’Halloran ran the Department rather than the Board, and
the fact that O’Halloran was “not aware of” and could not
“recall any” occurrences when the Board rejected any proposed
discipline in the past ten years. However, Woods’s
theory is not sufficient to raise a genuine issue of fact that
the Board just rubber-stamped O’Halloran’s recommendation
in this case. First, it is clear from its practice that the
Board did have the ultimate firing power; otherwise the
hearing would not have been necessary. Second,
O’Halloran’s statement about the Board’s previous adoption
of management’s recommendations related to all members of
management, not just his own, and represented under five
recommendations over ten years. We decline to infer that,
based on that few recommendations over that period, the
Board rubber-stamps all of O’Halloran’s recommendations.
No. 13-3766 13
We would be more inclined to accept this theory if there was
any evidence that the Board did not conduct full hearings in
those cases, that those decisions were without merit, or that
they relied entirely on the Statement of Charges without any
other support. Cf. Schandelmeier-Bartels, 634 F.3d at 381 (finding
that a jury could conclude that the employer’s investigation
was irrelevant because biased employee was the sole
source of nearly all pertinent information relied upon in the
decision to terminate the plaintiff). Without more, we cannot
infer that the Board rubber-stamps every recommendation
made by management. But most importantly, for the reasons
discussed, Woods has failed to present a genuine issue of
material fact that the Board was rubber-stamping
O’Halloran’s recommendation in this case.
Our conclusion is further supported by the absence of a
similarly situated individual. To be a sufficiently similar
comparator, the individual ordinarily should have dealt
with the same supervisor, been subject to the same standards,
and engaged in similar conduct of comparable seriousness.
Coleman v. Donahoe, 667 F.3d 835, 847 (7th Cir. 2012).
Woods failed to propose the name of any firefighters who
engaged in conduct that involved serious threats or violence
like Woods, who were brought before the Board, and were
not terminated by the board upon hearing evidence of such
conduct.
Finally, Woods argues that with all reasonable inferences
and the evidence looked at in the light most favorable to
him, he did not make the statements Hamilton attributes to
him. Though that could be true, we do not need to determine
whether or not Woods made those statements to find
that the independent hearing broke the chain of causation
14 No. 13-3766
between O’Halloran and the termination decision. It is sufficient
under the cat’s paw theory that the Board found
Woods made those statements and that the Board was not
subject to O’Halloran’s control. Because Woods cannot prevail
under his cat’s paw theory, and he advocates no other
theory of liability, his claims must fail.1

* * *

1 Because Woods failed to establish a prima facie case of liability, we
do not need to address his arguments on the issue of pretext. See Harper
v. C.R. England, Inc., 687 F.3d 297, 311 (7th Cir. 2012).

Outcome: For these reasons, we AFFIRM the judgment of the district
court.

Plaintiff's Experts:

Defendant's Experts:

Comments: