In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3131

JOHN GACEK,

Plaintiff-Appellant,

v.

AMERICAN AIRLINES, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 C 3968—Suzanne B. Conlon, Judge.

ARGUED JUNE 9, 2010—DECIDED JULY 15, 2010

Before POSNER, WOOD, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge. A former baggage handler for

American Airlines filed this diversity suit against the

airline for retaliatory discharge in violation of the Illinois

Workers’ Compensation Act, 820 ILCS 305/4(h). The

district court granted summary judgment for the airline,

precipitating this appeal, which involves the applicability of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-

03 (1973), to a suit based on state law but litigated

in federal court.
2 No. 09-3131

The plaintiff sprained the middle finger of his left hand

at work on December 22, 2005, while lifting a bag, and a

doctor at the airport’s medical clinic told him to wear

a splint on the finger and do only light work until he

recovered. Later another doctor at the clinic told him not

to lift anything with his left hand. He called in sick on

December 29 and an airline “attendance manager” phoned

him to find out what was wrong. He didn’t answer or

return the call, though she had left a message. Her supervisor began harboring suspicions of the plaintiff because

it was the holiday season (when workers are tempted

not to work), and so the airline hired a detective agency

to check up on him. He called in sick the following two

days as well, and on the second day was videotaped by

a detective. The videotape showed the plaintiff running

errands over a three-hour period, lifting and carrying

grocery bags with both hands, and not wearing the

splint. Later—but before learning about the surveillance—

the plaintiff told the airline that he had been absent on

December 29 through 31 because of the flu. Later still

he said he hadn’t had the flu but had stayed off work

because his finger was bothering him—a claim in tension with his having been observed lifting and carrying

groceries with both hands and not wearing his splint. So

he was fired.

He didn’t file a workers’ compensation claim till years

later. But when he had first reported the injury a claim

file had been opened by the airline’s administrator of

workers’ claims; and a discharge motivated by such

an injury report is a retaliatory discharge under Illinois
No. 09-3131 3

workers’ compensation law. Hinthorn v. Roland’s of Bloomington, Inc., 519 N.E.2d 909, 913 (Ill. 1988).

It seems unlikely that an airline would fire a baggage

handler merely because he sprained a finger and might

seek workers’ compensation, since worse injuries to

baggage handlers are common. See Sahika Vatan Korkmaz

et al., “Baggage Handling in an Airplane Cargo Hold:

An Ergonomic Intervention Study,” 36 Int’l J. Indus.

Ergonomics 301 (2006); Geoff Dell, “The Causes and Prevention of Baggage Handler Back Injuries: A Survey of

Airline Safety Professionals,” Safety Science Monitor,

http://ssmon.chb.kth.se/vol1/v1i3art3.pdf (visited June 21,

2010). But plausible or not, no reasonable jury could find

that the airline had fired the plaintiff because its claims

administrator had opened a file on the injury rather

than because it believed that he had lied about having

the flu and had disobeyed the doctor’s orders to wear a

splint on the injured finger and not lift anything with

that hand.

We should consider whether this conclusion might be

altered by whether the framework for deciding an employer’s motion for summary judgment in a retaliatorydischarge case governed by Illinois law is supplied by

federal law, which is to say by McDonnell Douglas, or by

state law. The question has arisen repeatedly in this circuit,

see McCoy v. Maytag Corp., 495 F.3d 515, 521-22 (7th Cir.

2007); Carter v. Tennant Co., 383 F.3d 673, 677-78 (7th Cir.

2004); Borcky v. Maytag Corp., 248 F.3d 691, 696 n. 5 (7th Cir.

2001); Bourbon v. Kmart Corp., 223 F.3d 469, 473-77 (7th Cir.

2000) (concurring opinion), but we have ducked it be-
4 No. 09-3131

cause the lawyers ignored it or the answer would not have

changed the outcome. It is time we answered the question.

It is hard on the district judges for the court of appeals to

allow a conflict in the rules that govern summary judgment

to persist. It requires them to choose between the rules

(when they would yield opposing results) without guidance, or, as a matter of prudence, to apply both rules in

every case and hope the outcome will be the same under

both. So let us choose.

In Clemons v. Mechanical Devices Co., 704 N.E.2d 403, 407-

08 (Ill. 1998), the Supreme Court of Illinois rejected the

McDonnell Douglas framework for cases of retaliatory

discharge for making a workers’ compensation claim. Cf.

Jordan v. Clay’s Rest Home, Inc., 483 S.E.2d 203, 207 (Va.

1997). It did so because it was unwilling to “expand

the tort of retaliatory discharge by reducing plaintiff’s

burden of proving the elements of the tort,” one of

which is that the workers’ compensation claim (or potential claim) was the cause of the plaintiff’s being fired. 704

N.E.2d at 408.

In McEwen v. Delta Airlines, Inc., 919 F.2d 58 (7th Cir.

1990), another diversity case, we had held years earlier

that if the rule in Illinois was, as the plaintiff argued in

that case, that a plaintiff in a retaliatory-discharge case

could defeat summary judgment however weak his

prima facie case, nevertheless the McDonnell Douglas

rule would govern. The employer in McEwen presented

evidence of a lawful reason for the discharge, and the

plaintiff did not rebut it. That defeated her case under

McDonnell Douglas. But it would have done so under
No. 09-3131 5

Illinois procedural law as well, since the evidence, uncontradicted as we said, precluded an inference of retaliation. We know from the Clemons decision, decided after

McEwen, that the Illinois rule is not as was argued to us

in McEwen. More important, the passage we quoted

from Clemons makes clear that the rule adopted in that

case (rejecting McDonnell Douglas) is grounded in substantive rather than procedural principles—in a desire

as we said to assimilate retaliatory discharge to other

torts. And so in the post-Clemons case of McCoy v.

Maytag Corp., supra, 495 F.3d at 522, we treated the applicability of McDonnell Douglas to diversity cases governed by the Illinois law of retaliatory discharge as open.

(“We leave the decision regarding ‘ “what the prima

facie case of retaliation is in the Seventh Circuit” ’ for

another day.” Id.)

Snead v. Metropolitan Property Ins. & Casualty Co., 237

F.3d 1080 (9th Cir. 2001), is similar to McCoy. Although

the court discussed at length the applicability of the

McDonnell Douglas test to a case governed by Oregon

law, it was for the purpose of showing that, since the

application of McDonnell Douglas yielded the same

result that applying Oregon’s test would have done,

there could be no objection to applying the federal

rule. See id. at 1090-94. Unanswered was the question

whether, if a state adopts a procedural rule that differs

from the federal procedural rule, and does so for reasons

of substantive policy (in the present case, to bring

about uniformity in proving tort cases), the federal

courts are required to apply the state rule in a case gov-
6 No. 09-3131

erned by state substantive law if applying the state

rule rather than the federal one might alter the outcome

of the litigation.

Suppose McDonnell Douglas were applicable to this

case; then a worker who had filed a workers’ compensation claim, and who had proved that his work was otherwise satisfactory and that he (and no worker who

didn’t file such a claim) was fired, would be entitled to

summary judgment unless the employer advanced a

reason for having fired him that the worker could not

show was merely a pretext. Borcky v. Maytag Corp., supra,

248 F.3d at 697 n. 6; Bourbon v. Kmart Corp., supra, 223

F.3d at 473. The plaintiff would thus have won without

ever directly confronting the question whether his filing

a workers’ compensation claim was the cause of his

being fired, even though such a showing would be necessary in any other tort case.

The concurring opinion in Bourbon v. Kmart Corp., supra,

223 F.3d at 475-77, pointed out that some cases of retaliatory discharge have required proof of causation while

purporting to apply the McDonnell Douglas framework.

See also Stone v. City of Indianapolis Public Utilities Division,

281 F.3d 640, 642-44 (7th Cir. 2002). We can put that

complication to one side, though it helps explain why

the choice of standards will rarely affect the outcome of

a case. We know that Illinois requires proof of causation,

and that can make a difference. For suppose that in a

case governed by McDonnell Douglas the employer fails

to offer any reason for having fired the plaintiff. An

inference would arise that the reason was the unlawful
No. 09-3131 7

one alleged by the plaintiff. Yet in some cases the reason

might be unknown to the employer (the actual firing

having been done by a subordinate who may have left

the company or be unwilling to cooperate in its investigation) or the employer might be unwilling to reveal the

real reason because it would disclose an illegal or

unethical or otherwise embarrassing practice (nepotism,

for example, or blackmail) though one unrelated to

the discrimination alleged in the suit. Wallace v. SMC

Pneumatics, Inc., 103 F.3d 1394, 1399 (7th Cir. 1997). Then

the plaintiff would win under McDonnell Douglas

without more, but under the Illinois rule he would have

to prove that the alleged discrimination was the cause

of his being fired. So the choice between the federal

McDonnell Douglas approach and the state Clemons approach may make a difference in at least some cases

governed by Illinois law, and it is a difference that

will favor plaintiffs if McDonnell Douglas is applied in

preference to Clemons.

Under the Erie doctrine, federal courts in diversity

cases (and any other cases in which state law supplies the

rule of decision) apply state “substantive” law but federal “procedural” law. E.g., Gasperini v. Center for Humanities, 518 U.S. 415, 427 (1996); Mayer v. Gary Partners & Co.,

29 F.3d 330 (7th Cir. 1994); Esfeld v. Costa Crociere, S.P.A.,

289 F.3d 1300, 1306 (11th Cir. 2002). A substantive law is

one motivated by a desire to influence conduct outside

the litigation process, such as a desire to deter accidents,

while a procedural law is one motivated by a desire

to reduce the cost or increase the accuracy of the litigation process, regardless of the substantive basis of the
8 No. 09-3131

particular litigation. Thomas v. Guardsmark, LLC, 487 F.3d

531, 537 (7th Cir. 2007); Barron v. Ford Motor Co., 965 F.2d

195, 199 (7th Cir. 1992); Sims v. Great Am. Life Ins. Co.,

469 F.3d 870, 882-83 (10th Cir. 2006). If an ostensibly

procedural rule of state law is confined to a particular

substantive area of law, this suggests that it probably

was motivated by substantive concerns and therefore

should be applied by the federal court in a case governed by state law. Bourbon v. Kmart Corp., supra, 223 F.3d

at 475 (concurring opinion); Herremans v. Carrera Designs,

Inc., 157 F.3d 1118, 1123 (7th Cir. 1998); S.A. Healy Co. v.

Milwaukee Metropolitan Sewerage Dist., 60 F.3d 305, 310

(7th Cir. 1995), and cases cited there; CRST Van Expedited,

Inc. v. Werner Enterprises, Inc., 479 F.3d 1099, 1111 (9th

Cir. 2007); Trierweiler v. Croxton & Trench Holding Corp.,

90 F.3d 1523, 1539-41 (10th Cir. 1996).

McDonnell Douglas, unlike the rule that places the

burden of proving an affirmative defense on the defendant, is not a general rule of procedure, applied regardless of the nature of the case. Initially it was limited

to cases of employment discrimination (which includes

retaliatory discharge, since employment discrimination

just means basing an employment decision on an

unlawful ground), though it has since been adapted for

use in other types of discrimination case as well. Elkhatib

v. Dunkin Donuts, Inc., 493 F.3d 827, 829-30 (7th Cir. 2007)

(racial discrimination against a franchisee); Kormoczy

v. Secretary of HUD, 53 F.3d 821, 823-24 (7th Cir. 1995)

(housing discrimination based on family status); Lindsay

v. Yates, 498 F.3d 434, 438-39 (6th Cir. 2007) (racial discrimination in housing); Lindsey v. SLT Los Angeles, LLC, 447
No. 09-3131 9

F.3d 1138, 1144-45 (9th Cir. 2006) (refusal, on racial

grounds, to enter into a contract); Christian v. Wal-Mart

Stores, Inc., 252 F.3d 862, 867-73 (6th Cir. 2001) (racial

discrimination in treatment of a customer); MercadoGarcia v. Ponce Federal Bank, 979 F.2d 890, 893 (1st Cir.

1992) (racially motivated denial of credit). It’s designed

to make it easier for plaintiffs to withstand summary

judgment in discrimination cases, in the belief that “a

discrimination suit (unlike, for instance, an action for

negligence or breach of contract), puts the plaintiff in

the difficult position of having to prove the state of mind

of the person making the employment decision. Furthermore, unlike some other torts, in which state of mind

can be inferred from the doing of the forbidden act,

the employer’s state of mind cannot be inferred solely

from the fact of the adverse employment action . . . .

To make matters somewhat easier for plaintiffs in employment discrimination suits, the Supreme Court, in

McDonnell Douglas Corp. v. Green, developed a presumption that supplemented—but did not replace—the traditional framework.” Wright v. Southland Corp., 187 F.3d

1287, 1289-90 (11th Cir. 1999) (citations and footnote

omitted); see also United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983); Stone v. City

of Indianapolis Public Utilities Division, supra, 281 F.3d at

643; Collier v. Budd Co., 66 F.3d 886, 890 (7th Cir. 1995);

Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th

Cir. 1997).

Illinois, however, doesn’t want to give plaintiffs in

retaliatory discharge cases governed by state law that

leg up; it doesn’t want to modify the conventional princi-
10 No. 09-3131

ples of tort law. That is a substantive judgment, one that

a state is free to make in areas governed by state law,

whether we think it wise or unwise. In most cases

of employment discrimination the state and federal

standards for summary judgment will be materially the

same and the federal judges’ greater familiarity with the

McDonnell Douglas doctrine will provide a compelling

reason to apply it. But when a retaliatory discharge

case governed by Illinois law is litigated in a federal

court, the federal court must apply the standard of the

state law to a motion for summary judgment, and not the

federal standard, because the standards are materially

different and the difference is rooted in a substantive

policy of the state.

We are confirmed in this conclusion by the Supreme

Court’s very recent decision in Gross v. FBL Financial

Services, Inc., 129 S. Ct. 2343 (2009). The question was

whether the rule of Price Waterhouse v. Hopkins, 490 U.S.

228 (1989), shifting the burden of proving causation in

Title VII cases from plaintiff to defendant, should also

govern cases under the Age Discrimination in Employment Act. The Supreme Court in Gross said no, thus

treating the burden-shifting rule not as a substantively

neutral rule of procedure but as a rule limited to a particular statute, in that case Title VII. McDonnell Douglas

has a broader domain of applicability, at least as understood by the lower federal courts, but still a domain

defined by a substantive category, namely discrimination.

So the plaintiff in this case could not have prevailed

merely by proving that the reasons given by the airline
No. 09-3131 11

for firing him were unworthy of belief; and in any event

he presented no credible evidence that they were.

AFFIRMED.

7-15-10