In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-2880

MOSES BOYD, JR., et al.,

Plaintiffs-Appellants,

v.

ILLINOIS STATE POLICE, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 98 C 8348—Joan Humphrey Lefkow, Judge.

____________

ARGUED JANUARY 14, 2004—DECIDED SEPTEMBER 30, 2004

____________

Before FLAUM, Chief Judge, and POSNER and WOOD,

Circuit Judges.

WOOD, Circuit Judge. Plaintiffs are 18 of 51 forensic

scientists (to whom we refer as the Scientists) who worked

for the Chicago Police Department (CPD) crime lab until

July 1996, when they were transferred en masse to the

Illinois State Police (ISP). Unhappy with their salaries after

the transfer, the Scientists brought suit under Title VII

alleging that ISP intentionally discriminated against them

in the way that it structured the salary terms for the newly

absorbed group, a majority of which were members of racial

or ethnic minorities. A jury found against the Scientists
2 No. 02-2880

shortly after receiving clarifying instructions from the

district court. The Scientists then filed a Rule 59 motion for

a new trial, which the district court denied.

On appeal, they challenge the jury instructions given by

the district court as well as two other rulings. First, they

claim that the district court erred in granting summary

judgment to ISP on their claim challenging the state’s actions under the legislation regulating their transfer from

the City’s crime lab to ISP’s facility. See 20 ILCS 415/12e.

The Scientists contended that ISP violated the statute

because it failed to consider their years of experience in setting salaries. The district court assumed without deciding

that the statute created a private right of action and then

concluded that ISP complied with all relevant laws because it

did consider the Scientists’ years of experience in determining

compensation levels. Boyd, et al. v. Illinois State Police, et

al., 2001 WL 301150, *7 (N.D. Ill. Mar. 28, 2001).

Second, plaintiff Larry Wilson appeals from the district

court’s decision to grant judgment as a matter of law to ISP on

what Wilson has styled an equal protection retaliation

claim. One year after this lawsuit was filed, Wilson came

across an e-mail from Teresa Kettlekamp, ISP’s Deputy

Director of the Division of Forensic Services, stating that

Wilson’s salary increase should be suspended until further

notice because of this litigation. In light of these events, the

Scientists amended their complaint to allege that ISP had

retaliated against Wilson in violation of Title VII and the

equal protection clause. The jury awarded relief under Title

VII for Kettlecamp’s retaliatory actions. Before the jury

began its deliberations, however, the judge granted judgment

to ISP as a matter of law on Wilson’s equal protection

retaliation claim. When the Scientists challenged this ruling in their Rule 59 motion, the district court again sided

with ISP.

While we part company with some of the district court’s

reasoning, we conclude that any errors it made in the
No. 02-2880 3

instructions were harmless, and that it correctly concluded

that ISP did not violate the transfer statute and did not

violate Wilson’s rights under the equal protection clause.

We therefore affirm.

I

In 1994, ISP began taking steps to merge the operations

of the CPD’s crime lab with those of ISP’s crime lab. On

July 1, 1996, 51 forensic scientists that had been employed

by CPD transferred to the state system. This group consisted

of 24 Caucasians, 22 African-Americans, and five Hispanics.

Of these, six Caucasians, two African-Americans and one

Hispanic were transferred to ISP as supervisors. Prior to

the transfer, over 90% of the forensic scientists at ISP were

Caucasian and there were no minority supervisors. Given

the fact that the CPD lab processed more cases per year

than the seven ISP labs combined, it was also true that

CPD group was more experienced than their ISP counterparts.

The plaintiff Scientists, 18 of the 51 who were transferred,

include seven Caucasians, 10 African-Americans and one

Hispanic. They believe that ISP discriminated against them

on the basis of race because it paid them less than ISP

incumbents with the same formal level of forensic science

experience. Although half of the transferring group was

Caucasian, the Scientists’ theory was that ISP paid them

less because the group as a whole was identifiably minority

and stood in sharp contrast to ISP’s predominately Caucasian workforce.

The evidence at trial showed that ISP set salary levels in

consultation with the Illinois Department of Central

Management Services (CMS), the state agency authorized

to administer the Illinois Personnel Code, 20 ILCS 415/1 et

seq. CMS follows a standard procedure in hiring new state

employees. Each applicant is graded and then placed on an
4 No. 02-2880

interview list if he or she meets the stated job requirements. After the interview process, applicants are ranked

and given conditional offers pending background investigations, polygraph exams, and drug tests. CMS also uses a

standard procedure in setting salaries for new hires. Typically, an applicant is paid up to 10% over her prior salary

and is then slotted into the salary step established by a

collective bargaining agreement closest to, but not exceeding 10%, over her prior salary. State employees automatically advance one step and receive an additional salary

increase on each annual anniversary date of employment.

If the applicant is not covered by a collective bargaining

agreement, or is being hired into a management position,

the 10% rule is applied, but there is no step system. An employee hired under the CMS rules typically does not retain

any benefits from a previous job, like sick days or accrued

vacation.

ISP worked with CMS to establish a variant of this procedure for the transferring forensic scientists. ISP streamlined the application process and permitted the CPD scientists

to carry over their sick days and accrued vacation. In addition, ISP exempted the CPD scientists from the standard

six-month probationary period for new state employees.

Salaries were set using a two-step process. First, ISP classified each CPD scientist as a Forensic Scientist I, II, or III,

based on years of experience. Within these three levels,

which were governed by a union contract, were ten steps of

increasing salary. Second, ISP looked at the CPD scientist’s

current compensation, adding on up to a 10% increase, to

place the scientist on the closest equivalent salary step. To

assure a salary increase, each CPD scientist was then

elevated one step.

ISP considered several proposals before settling on this

procedure. Mike Sheppo, the bureau chief of the ISP

Forensic Sciences Command, and Bruce Vander Kolk, ISP’s

Commander of the Forensic Science Command, testified
No. 02-2880 5

that they persuaded CMS to build in a salary increase for

the forensic scientists using the device of the additional step

after CMS suggested using its standard procedure. Each of

the Scientists received a salary increase of between 1.5% and

11.6% after the transfer. Sheppo and Vander Kolk further

testified that ISP never considered paying the CPD scientists the same salary as an ISP incumbent with the same

years of experience. Although the authorizing legislation

established certain exceptions to the Personnel Code,

Sheppo testified that these exceptions did not give ISP the

latitude to set salaries without regard to CMS guidelines.

At trial, the jury learned that CMS always sets salaries by

reference to an employee’s prior level of compensation, not by

reference to the compensation of an incumbent with equivalent experience. The result of such a rule is that a new hire

may draw a larger salary than a more experienced employee if the new hire’s prior salary was higher than that of

the more experienced employee; conversely, if the new hire’s

former salary was lower, that person would be paid less

than a comparable employee at the state agency. Both

Sheppo and Vander Kolk testified to earning less money

than people who reported directly to them at various stages

of their employment with ISP.

The Scientists, however, thought that ISP had promised

to pay them the same salary as incumbents with equivalent

experience. They pointed to a meeting in November 1994,

during which ISP officials were asked what a CPD employee

with 23 years of experience would earn at ISP, assuming a

current salary at CPD of $43,000. ISP officials stated that

if this person had spent his 23 years of service as an ISP

employee, the salary would be $52,000. Sheppo explained at

trial that this question posed a hypothetical, and at the

time of this meeting ISP had not yet finalized the process

for salary determinations. A handout given to CPD employees at the November 1994 meeting explained that salaries would be based on the “number of years of forensic
6 No. 02-2880

science experience and where [an employee’s] present salary

fits into the state’s pay range.”

After transferring to ISP, the Scientists complained

that their salaries were lower than ISP scientists with

equal or less experience. In light of these complaints, ISP

asked Special Project Coordinator Ron Ewert to investigate

the agency’s salary structure. Ewert interviewed several of

the Scientists and looked at their previous salary levels at

CPD. He concluded that although some discrepancies did

exist, ISP could not address the discrepancies in a manner

that was fair to all employees. Ewert did not recommend

that ISP adjust the salaries of the CPD scientists, and no

adjustments were made.

The Scientists then filed this lawsuit, alleging that their

salaries violated Title VII because ISP intentionally discriminated against them on the basis of race. At trial, they presented the following evidence. First, they told the jury that

in addition to the 51 CPD scientists, ISP hired 85 new

forensic scientist trainees, a group that was overwhelmingly

Caucasian (79 Caucasians, five African-Americans, and one

Hispanic). Second, they alleged that Vander Kolk rejected a

proposal to allow the forensic scientists to receive seniority

credit for their years at CPD because he favored another

proposal that “protects our people,” referring to ISP’s predominately Caucasian employees. Third, they elicited testimony

from Robert Chapman, a CPD scientist who is not a plaintiff in this case, about a meeting Chapman had with CPD

director Robert Stacey after there had been problems with

Chapman’s polygraph test. Stacey, who was also being

moved to ISP, told Chapman that he wanted the lab at ISP

to be “lily white. And realizing what he had said, he

changed that to squeaky clean.” Chapman claims that

Stacey also said that he was going to direct the State Police

to investigate people from certain neighborhoods in Chicago. Fourth, the Scientists claimed that Ewert did not take

their concerns seriously, telling one of the plaintiffs that he
No. 02-2880 7

was not her “ally.” The Scientists told the jury that they

were “humiliated” to discover that they were paid less than

ISP forensic scientists with less experience.

After closing arguments, the parties informed the district

court that there was no dispute with respect to the jury

instructions. The court reminded the jury “not to single out

one instruction alone as stating the law, but must consider

the instructions as a whole” in reaching your verdict. It

then delivered the following agreed-upon instructions: “Your

verdict must be for plaintiffs and against the defendant

Illinois State Police on plaintiffs’ race discrimination claim

if they have proved all of the following elements by the

preponderance of the evidence: First, that defendant ISP

paid the plaintiffs less than other State Police employees

with comparable or less experience. Second, that race was

a motivating factor in defendant’s salary determinations. If

plaintiffs have not proven both of the above elements by a

preponderance of the evidence, your verdict must be for

defendant, and you need not proceed further in considering

this claim.” The district court additionally instructed: “As

used in these instructions you may find that [ ] plaintiffs’s

[sic] race was a motivating factor if the racial composition

of the plaintiff group played [a] part or a role in the defendant’s salary determination to set plaintiffs’s [sic] salaries.

However, the racial composition of plaintiff group need not

have been the only reason for defendant’s salary determination.” The jury verdict form instructed the jurors to find for

the Scientists if they proved by a preponderance of the

evidence that ISP “discriminated against them because of

race in the determination of their salaries.”

During its deliberations, the jury submitted the following

note to the court: “We find that the instructions to the jury

and the question on the jury verdict form ask us to decide

two different things. Do we need [to] decide whether race

was “a” factor or “the” factor in determining salaries? If it

is the factor, does this mean that it is the most important of
8 No. 02-2880

multiple factors? And if it is a factor, how much of a factor

does it have to be?” (emphasis added). Over strong objections from the Scientists’ counsel, the judge sent back a

note instructing the jury as follows: “To be a motivating

factor the forbidden criterion must be a significant reason

for the employer’s action. It must make such a difference in

the outcome of events that it can fairly be characterized as

the catalyst which prompted the employer to take the

adverse employment action and a factor without which the

employer would not have acted.” Shortly after receiving the

court’s response, the jury returned a verdict for ISP on the

Title VII race discrimination claim.

In their motion for a new trial, the Scientists argued that

the district court erred in giving its clarifying instruction

because it misstated the law and undermined the Scientists’

closing argument. During closing arguments, the Scientists’

attorney told the jury that the instructions directed them to

find that “race was a motivating factor” in ISP’s decision to

pay Scientists less than similarly situated Caucasian

employees. On two later occasions in the closing, the

Scientists’ attorney reiterated that race had to be “a factor,

a motivating factor.” ISP responded to the Rule 59 motion,

arguing that the court’s instruction did not misstate the

law, that no prejudice was shown, and that the Scientists

had failed to present evidence showing that race played any

role in the salary determinations. The district court denied

the Scientists’ motion for a new trial.

II

We begin by considering the Scientists’ claim that the

district court’s supplemental instruction so gravely misled

the jury that a new trial is required. When a party challenges

a judge’s decision to give a supplemental instruction, we

review that decision for an abuse of discretion. Akrabawi v.

Carnes Co., 152 F.3d 688, 695 (7th Cir. 1998); United States
No. 02-2880 9

v. Mealy, 851 F.2d 890, 901-02 (7th Cir. 1988). As for the

content of the supplemental instruction, the standard of

review is the same as that for any instructional issue. It is “a

liberal one: we look at jury instructions only to determine

if taken as a whole they were sufficient correctly to inform

the jury of the applicable law. Even if the instruction

contains errors or misguides the jury, the error is reversible

only if a litigant is prejudiced.” Molnar v. Booth, 229 F.3d

593, 602 (7th Cir. 2000) (internal citation omitted).

To win a new trial based on an erroneous jury instruction,

the Scientists must show both that the instructions did not

adequately state the law and that the error was prejudicial

to them because the jury was likely to be confused or

misled. Gile v. United Airlines, Inc., 213 F.3d 365, 375 (7th

Cir. 2000). An erroneous jury instruction could not prejudice the Scientists unless “considering the instructions as a

whole, along with all of the evidence and arguments, the

jury was misinformed about the applicable law.” Susan

Wakeen Doll Co., Inc. v. Ashton Drake Galleries, 272 F.3d 441,

452 (7th Cir. 2001).

On appeal, neither party challenges the adequacy of the

original instructions given by the court. What is at issue

here is the court’s supplemental instruction telling the jury

that the Scientists’ race needed to serve as “the catalyst

which prompted the employer to take the adverse employment action, and a factor without which the employer would

not have acted.” We agree with the Scientists that this was

error. The term “catalyst” does not appear anywhere in the

text of Title VII and has never been used by the Supreme

Court in any of its decisions interpreting Title VII. See also

Gehring v. Case Corp., 43 F.3d 340, 343-44 (7th Cir. 1994)

(criticizing the district court for using the phrase “determining

factor” in jury instructions because such a phrase is not

used in the Age Discrimination in Employment Act (ADEA)).

It appears that the district court may have borrowed language from Foster v. Arthur Andersen, LLP, 168 F.3d 1029,
10 No. 02-2880

1033-34 (7th Cir. 1999), in crafting its supplemental instruction, a case considering the phrase “because of disability”

under the Americans with Disabilities Act (ADA), 42 U.S.C.

§ 12112(a). But the ADA standard may not be the same as

Title VII’s. We use this opportunity to remind the district

courts that jury instructions should not be patched together

from snippets of appellate opinions taken out of context, but

should rely first on the language of the statute. Desert

Palace v. Costa, 539 U.S. 90, 98 (2003) (starting with the

statutory text of Title VII in evaluating whether the jury

instructions at issue were proper); Akrabawi, 152 F.3d at 694

(suggesting that district courts “might be better advised” to

rely on the statutory language in Title VII in framing jury

instructions). Simple instructions are normally the best. See

Gehring, 43 F.3d at 344.

Title VII makes it unlawful for an employer “to discriminate

against any individual . . . , because of such individuals’s race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1) (emphasis added). In 1991, Congress amended Title

VII, adding that “an unlawful employment practice is

established when the complaining party demonstrates that

race . . . was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42

U.S.C. § 2000e-2(m). Although the statute does not define

“motivating factor,” logically there is a difference between

a motivating factor, and a single factor that is the precipitating force (one definition of catalyst) for an action. The

initial instruction to which the parties agreed correctly

stated that “race was a motivating factor if the racial composition of the plaintiff group played a part or a role in the

defendant’s salary determination to set plaintiffs’s [sic]

salaries. However, the racial composition of plaintiff group

need not have been the only reason for defendant’s salary

determination.” The judge should have referred the jury

back to these instructions, which adequately stated the law.

Mealy, 851 F.2d at 902.
No. 02-2880 11

The court’s supplemental instructions, which told the jury

that race had to be “the catalyst” instead of “a motivating

factor” in ISP’s salary decisions, were wrong because they

placed a heavier burden on the Scientists than Title VII

requires. Even so, however, the Scientists can prevail only

if the error was prejudicial, and we conclude that it was not.

The evidence of discrimination is simply too thin on this

record to warrant a new trial, even if proper instructions

had been given. Crabtree v. Nat’l Steel Corp., 261 F.3d 715,

722-23 (7th Cir. 2001) (finding that any error in jury

instructions would have been harmless “considering the

overwhelming evidence” showing no age discrimination

against plaintiff); Gile, 213 F.3d at 375 (suggesting that

incorrect jury instructions resulted in harmless error when

it was not clear that the jury would have decided differently

on proper instructions); see also Renz v. Grey Adver., Inc.,

135 F.3d 217, 224 (2d Cir. 1997) (employer’s evidence that

it discharged plaintiff because of poor performance “is so

strong that a correct charge on the plaintiff’s standard of

proof in her ADEA claim would not have made a difference

to the verdict”).

The evidence presented at trial, which we have described

already, failed to show that race was ever considered as a

factor in setting the Scientists’ salaries. ISP worked in consultation with CMS to create a standardized hiring procedure for the CPD scientists. Neither Ewert, who the

Scientists believed was unsympathetic to their complaints,

nor Stacey, who referred to the ISP crime lab as “lily white,”

played any role in determining their salaries. Finally,

Vander Kolk’s reference to “protecting our people,” taken in

context, simply does not lead to an inference that the

Scientists were discriminated against on the basis of race.

Vander Kolk was referring to ISP employees as a whole, not

Caucasians in particular, when he rejected a particular

personnel proposal. The Scientists did not present sufficient

evidence to show that race was a factor in ISP’s decision to
12 No. 02-2880

set salaries, let alone a motivating factor. And since it was

not shown to be a factor at all, we have no need to delve

into mixed motive analysis. Because the Scientists cannot

demonstrate prejudice from the supplemental instructions,

they are not entitled to a new trial.

III

We turn then to the heart of the Scientists’ case on the

merits: the question whether ISP created a discriminatory

system in the way that it integrated the CPD personnel into

its own ranks. The Illinois legislature enacted 20 ILCS

415/12e to facilitate the integration of the CPD forensic

scientists into the state of Illinois’s system. Subsection (a)

of the statute provided that the ISP could “enter into an intergovernmental agreement with the City of Chicago with

respect to the hiring, classification, compensation, merit

and fitness, and conditions of employment of former employees” of the Chicago Police Department lab. Id. at 12e(a).

Subsection (b) listed some of the provisions such an agreement should encompass, including vacation accrual, sick

leave, and background checks. Id. at 12e(b)(1)-(6). At issue

here is the provision stating: “The employee’s period of

service as a Chicago Police Department employee shall be

considered for purposes of determining the appropriate level

of compensation.” Id. at 12e(b)(3).

As we have explained, ISP used a two-step process to set

compensation levels, first categorizing each employee as a

Forensic Scientist I, II, or III based on years of forensic

science experience, and then moving each employee one step

up from their current salary according to state personnel

guidelines. The Scientists wanted more, arguing before the

district court that ISP’s two-step process violated the statute because ISP did not appropriately “consider” a CPD employee’s years of service as mandated by Section 12e(b)(3).

The district court assumed arguendo that the statute created
No. 02-2880 13

a private right of action and concluded that ISP did not

violate the statute because it had, in fact, considered years

of service in setting compensation levels.

When an issue raises a question of statutory interpretation, or the propriety of summary judgment, the standard

of review is de novo. APS Sports Collectibles, Inc. v. Sports

Time, Inc., 299 F.3d 624, 628 (7th Cir. 2002). “Illinois law

states that ‘[w]here clear and unambiguous, statutory language must be enforced as enacted, and a court may not depart from its plain language . . . .’ ”Weinberg v. City of

Chicago, 310 F.3d 1029, 1035 (7th Cir. 2002) (quoting People

ex rel. Devine v. $30,700.00 United States Currency, 766

N.E.2d 1084, 1089 (Ill. 2002)). The plain language of the

statute does not explicitly provide for a private right of action, and it is very likely that one cannot be implied under

Illinois law. Metzger v. DaRosa, 805 N.E. 2d 1165, 1168 (Ill.

2004). In our view, however, the district court’s analysis of

implied rights was unnecessary to resolve this dispute.

In Noyola v. Bd. of Educ. of the City of Chicago, 688 N.E.

2d 81 (Ill. 1997), the Illinois Supreme Court explained that

a court should look for an implied right of action only when

a plaintiff attempts to use a statutory enactment as the

predicate for a tort action. Id. at 86. If a plaintiff instead sues

to force a public official to comply with the requirements

imposed by a statute, as is the case here, the appropriate

vehicle is a writ of mandamus, provided that the requirements

for the writ have been satisfied. Id.; Lewis E. v. Spagnolo,

710 N.E. 2d 798, 813-14 (Ill. 1999). Mandamus is appropriate only when a public officer has failed to perform an

official duty that involves no exercise of discretion on the

part of the official. Noyola, 688 N.E. 2d at 86 (citing Madden v. Cronson, 501 N.E. 2d 1267 (Ill. 1986)). A writ will be

granted only if the Scientists “can show a clear, affirmative

right to relief, a clear duty of the defendant to act, and clear

authority in the defendant to comply with the writ.” Lewis,

710 N.E. 2d at 813 (citations omitted).
14 No. 02-2880

The Scientists did not ask for mandamus relief, and it is

too late now for them to try. Moreover, on this record there

is no basis for this extraordinary remedy. The undisputed

material facts demonstrate that ISP did “consider” their

period of service with the Chicago Police Department in the

two-step process establishing compensation levels. The

district court correctly found that ISP did not violate

Section 12e(b)(3) of the authorizing legislation.

IV

In 1999, one year after this lawsuit was filed, plaintiff

Larry Wilson filled in for a supervisor and reviewed the

supervisor’s e-mail, as required by the job. At that time

Wilson was being considered for a salary increase and his

immediate supervisor had recommended an increase. Wilson

read an e-mail from Kettlekamp in his supervisor’s account

stating that any salary increase for Wilson should be

suspended until further notice due to this litigation. The

Scientists quickly amended their complaint to add two retaliation claims. The first was brought under Title VII and

went to the jury. Although Kettlekamp attempted to explain

that the e-mail was prompted by discussions with legal

counsel, the jury found in Wilson’s favor and awarded $25,000

in compensatory damages.

The second claim was titled, “42 U.S.C. §1983—

Intentionally Discriminatory Retaliation.” Wilson asserted

in the complaint that Kettlekamp’s actions deprived him of

equal protection “as guaranteed by the Fourteenth Amendment by wilfully retaliating against Wilson due to his involvement in the present case.” At the close of evidence, ISP

moved for judgment as a matter of law on this claim,

arguing that Wilson had not shown a difference in relief

available under a Title VII and an equal protection retaliation claim. ISP asserts that Seventh Circuit law does not

recognize an equal protection retaliation claim on the facts

that Wilson has alleged.
No. 02-2880 15

The district court initially denied ISP’s motion, but later

it reconsidered during an off-the-record conference and

granted judgment as a matter of law in ISP’s favor. The

following day, the court denied Wilson’s motion to reinstate

the equal protection claim. Wilson had argued that it was

a logical extension of Seventh Circuit precedent to permit

such a claim. When Wilson raised the issue again after

trial, the court denied the Rule 59 motion for the “reasons

stated on the record.” The lower court’s reasons, however,

are nowhere to be found in the record.

Typically, we will reverse the denial of a Rule 59 motion

to alter or amend a judgment only for an abuse of discretion. Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846,

855 (7th Cir. 2002). That is precisely what the Scientists

claim happened here: they assert that the district court, by

applying the wrong legal rule, necessarily abused its discretion. Khan v. Gallitano, 180 F.3d 829, 837 (7th Cir. 1999).

Our review of the district court’s interpretation of the law

is de novo. Id.; see also Koon v. United States, 518 U.S. 81,

100 (1996) (if a court applies an erroneous view of the law,

“by definition” it abuses its discretion). We may affirm on

any ground supported by the record. Omosegbon v. Wells,

335 F.3d 668, 677 (7th Cir. 2003). Because this claim presents a straightforward question of law, we need not remand

it for the district court to provide its rationale. Id.

Wilson claims that Kettlecamp retaliated against him for

filing a lawsuit in violation of his rights under the equal

protection clause. As ISP correctly points out, the right to

be free from retaliation may be vindicated under the First

Amendment or Title VII, but not the equal protection clause.

Grossbaum v. Indianapolis-Marion County Bldg. Auth., 100

F.3d 1287, 1296 n.8 (7th Cir. 1996) (“We do not imply,

however, that retaliation claims arise under the Equal

Protection Clause. That clause does not establish a general

right to be free from retaliation.”); Gray v. Lacke, 885 F.2d

399, 414 (7th Cir. 1989) (“Gray’s right to be free from retalia-
16 No. 02-2880

tion for protesting sexual harassment and sex discrimination is a right created by Title VII, not the equal protection

clause.”); Vukadinovich v. Bartels, 853 F.2d 1387, 1391-92

(7th Cir. 1988) (plaintiff’s equal protection claim alleged

“only that he was treated differently because he exercised

his right to free speech” and thus was “a mere rewording of

plaintiff’s First Amendment-retaliation claim”); see Watkins

v. Bowden, 105 F.3d 1344, 1354 (11th Cir. 1997); Bernheim

v. Litt, 79 F.3d 318, 323 (2d Cir. 1996); Ratliff v. DeKalb

County, 62 F.3d 338, 340-41 (11th Cir. 1995); Thompson v.

City of Starkville, 901 F.2d 456, 468 (5th Cir. 1990).

Yatvin v. Madison Metro. Sch. Dist., 840 F.2d 412 (7th Cir.

1988) is illustrative. Yatvin claimed that her equal protection rights were violated when her employer retaliated

against her for filing charges of sex discrimination. We found

this argument weak because “retaliating against a person

for filing charges of sex discrimination is not the same as discriminating against a person on grounds of sex . . . .” Id. at

418-19. We explained that Congress would not have wanted

a Title VII plaintiff to bypass the elaborate “administrative

procedures created by the statute (procedures as applicable

to retaliation claims as to any other claims under Title VII),

and go directly to court, through the illogical expedient of

equating discrimination against a person for filing charges

of sex discrimination to sex discrimination itself.” Yatvin, 840

F.2d at 419. Like the plaintiff in Yatvin, Wilson has not

asserted that Kettlecamp retaliated against him on the

basis of a protected trait or because of his membership in a

particular class, but only because of his participation in this

litigation. This is a harm that he could redress under either

Title VII or the First Amendment, but not the equal

protection clause. Gray, 885 F.2d at 414.

Wilson makes passing reference to Olech v. Willowbrook,

160 F.3d 386 (7th Cir. 1998), aff’d Village of Willowbrook v.

Olech, 528 U.S. 562 (2000) and Esmail v. Macrane, 53 F.3d

176 (7th Cir. 1995), which authorize a “class of one” equal
No. 02-2880 17

protection claim if the state actor has intentionally treated

the plaintiff differently from those similarly situated and no

rational basis is offered for the difference in treatment.

Wilson has not brought forth facts to sustain a “class of one”

claim, and so we reject that approach as well on this record.

Although we do not have the benefit of the district court’s

rationale, we conclude on our de novo review that judgment as

a matter of law was properly granted to ISP.

V

For these reasons, we AFFIRM the judgment of the district

court.

POSNER, Circuit Judge, concurring in the judgment and

the opinion of the court. I agree that we should affirm

despite the error in the supplemental instruction. The fact

that the jury may have been influenced decisively by that

instruction, as suggested by the length of its deliberations

before the instruction was given (2 hours) and after (8 minutes), is not important. The case should not have been

allowed to go to the jury; no reasonable jury could have

found a violation in this case.

My reason for writing separately is to urge district judges to

do a better job of presenting the issue of “motivating factor”

to a jury than was done in the original instruction, even

though that instruction did not misstate the law. It may be

unrealistic to think that jury instructions are very important to the jury; their principal importance may lie in
18 No. 02-2880

placing bounds on what the lawyers can say to the jury in

their closing arguments. Still, some pains should be taken to

make jury instructions clear. As we said in Gehring v. Case

Corp., 43 F.3d 340, 344 (7th Cir. 1994), in disapproving the

use of the term “determining factor” in jury instructions in

cases under the age discrimination law, “What the jury

needs to know can, and should, be expressed in simple language.” Jury instructions should turn the language of statutes

and judicial opinions, which is generally not drafted with a

lay readership in mind, into language that poses concrete

decisions for lay jurors to make. An instruction that uses the

term “motivating factor” does not do this.

The original instruction did try to explain the term: “you

may find that plaintiffs’ race was a ‘motivating factor’ if the

racial composition of the plaintiff group played [a] part or

a role in the defendant’s salary determinations to set

plaintiffs’ salaries. However, the racial composition of the

plaintiff group need not have been the only reason for

defendant’s salary determinations.” But to say that something plays “a part or a role” in the decision about which the

plaintiff is complaining is not illuminating.

To point the way to the drafting of an intelligible instruction, consider the following cases:

1. The plaintiff proves that the defendant is hostile to

members of the plaintiff’s race (religion, sex, ethnicity,

etc.—I’ll use “race” to stand for all the forbidden grounds),

period.

2. The plaintiff proves that the defendant, because of that

hostility, would have fired (or taken other adverse action

against) him even if he had been a satisfactory worker in

the sense that had he been of the “right” race he would have

been retained.

3. The plaintiff proves the same thing as in case 2 but the

defendant presents evidence that it would have fired him

anyway, regardless of his race, because he was an unsatisfactory employee.
No. 02-2880 19

4. The defendant would not have fired the plaintiff for his

race alone or for his performance alone; it was some

combination of race and performance that caused the firing.

His performance was marginal; his race pushed him over the

edge. In other words (though not words that would be

meaningful to most jurors), race and performance were each

necessary conditions of the discharge, but neither was a

sufficient condition. In case 2, race is a sufficient condition;

in case 3, performance is a sufficient condition.

In case 1, the defendant is entitled to judgment, because

to be a “motivating factor” racial hostility has to have some,

even if an attenuated, effect; to motivate is to influence, to

provide an impetus to action. Stopka v. Alliance of American

Insurers, 141 F.3d 681, 688 (7th Cir. 1998); Chambers v.

American Trans Air, Inc., 17 F.3d 998, 1004 (7th Cir. 1994);

Parker v. Sony Pictures Entertainment, Inc., 260 F.3d 100,

107-08 (2d Cir. 2001). Plenty of people harbor prejudices of

various sorts without acting on them. Title VII does not

forbid prejudice as such. Price Waterhouse v. Hopkins, 490

U.S. 228, 262 (1989) (concurring opinion).

In case 2, the plaintiff has proved that race was a motivating factor. Even if no other factor that might have

influenced a decision to fire the plaintiff were present, he

would have been fired.

Case 3 is where the 1991 amendment to Title VII that inserted “motivating factor” into the statute bites. 42 U.S.C.

§ 2000e-2(m); see Desert Palace, Inc. v. Costa, 539 U.S. 90

(2003). The amendment entitles the plaintiff to an instruction that the defendant bears the burden of persuading the

jury that the fact that the plaintiff was an unsatisfactory

employee would have induced the defendant to fire him even

if the defendant would have fired him anyway because of his

race had he been a satisfactory employee, and thus even if

“a discriminatory intent entered into the decision to fire

him.” Miller v. Illinois Dept. of Corrections, 107 F.3d 483,

484-85 (7th Cir. 1997); Weston-Smith v. Cooley Dickinson
20 No. 02-2880

Hospital, Inc., 282 F.3d 60, 64 (1st Cir. 2002). If the defendant carries this burden, it escapes having to pay damages

but, by virtue of the 1991 amendment, still has to pay the

plaintiff’s attorney’s fees and is also subject to declaratory

and injunctive relief. 42 U.S.C. § 2000e-5(g)(2)(B); Kennedy

v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 723

(7th Cir. 1998); Borgo v. Goldin, 204 F.3d 251, 255 n. 6

(D.C. Cir. 2000).

In an ordinary tort case, and in Title VII cases as well

prior to the 1991 amendment, the plaintiff would have had

to prove not only a breach of a legal duty by the defendant

but also that had it not been for that breach the plaintiff

would not have been injured. E.g., McQuillen v. Wisconsin

Educational Ass'n Council, 830 F.2d 659, 664 (7th Cir. 1987);

Germane v. Heckler, 804 F.2d 366, 368 (7th Cir. 1986);

Manoharan v. Columbia University College of Physicians &

Surgeons, 842 F.2d 590, 594-95 (2d Cir. 1988). In other

words, if the plaintiff would have been injured anyway, he

could not recover anything; so, once the defendant produced

some evidence of this possibility, the burden of negating it

rested on the plaintiff. If, therefore, as in my case 3, the

defendant presented evidence that race, while a sufficient

condition for the firing of the plaintiff, was not a necessary

condition—because he would have been fired anyway, for a

reason that would not violate discrimination law—the

plaintiff would have the burden of persuading the jury that

he would not have been fired had it not been for his race.

In other words, there are two different senses of “cause”

in case 3. Racial hostility caused the defendant to fire the

plaintiff in the sense that it supplied the impetus to the

defendant’s action, but in an equally good sense did not

cause the plaintiff to lose his job because he would have lost

it even if the defendant had not been induced to fire him by

racial hostility.

Of course, jurors should not be burdened with terms like

“sufficient condition” or “necessary condition” (or for that

matter “catalyst”) or introduced to the complex meanings of
No. 02-2880 21

“cause.” They should be told simply that the plaintiff must

prove that he would have been fired, because of his race,

even if he had been a satisfactory worker (not necessarily a

superlative worker, but a worker who would have been

retained had he been of a different race), but that if the

defendant presents evidence to show that the plaintiff would

have been fired anyway, regardless of his race, because he

was an unsatisfactory employee, it is the defendant’s burden

to prove this by a preponderance of the evidence. This is more

precise and informative than talk about “motivating factor”

and whether something “played a part or a role” in the

defendant’s action.

The defendant in this case argues that the “motivating

factor” amendment is applicable only in a “mixed motive”

case, and this was a “pretext” case. The Second and Third

Circuits have accepted the argument. Watson v. Southeastern Pennsylvania Transportation Authority, 207 F.3d 207,

214-20 (3d Cir. 2000); Fields v. New York State Office of

Mental Retardation & Developmental Disabilities, 115 F.3d

116, 121-24 (2d Cir. 1997); the Supreme Court declined to

address it in the Desert Palace case. See 539 U.S. at 94 n. 1.

Let me try to cut through the jungle of verbiage. If a

defendant decides to put on the defense (actually just a

partial defense, a defense against damages but not against

other relief) that he would have fired the plaintiff anyway,

he makes the case a case of mixed motives or, as I would

prefer to say (though not to a jury!), because it is a little

clearer, a case of dual causes: race, but also performance.

He makes it case 3. But if instead he argues that the only

reason he had for firing the plaintiff was poor performance,

this means he is going for broke; he wants a complete defense, not the partial one that is all that the 1991 amendment allows, and he can obtain that absolution only if the

jury is convinced that the plaintiff’s performance was the

only reason for firing him; that race was not in the picture

at all. If the jury is not convinced, performance falls out of
22 No. 02-2880

the picture, and we are left with a case in which the only

factor in the plaintiff’s dismissal is race: case 2.

Case 4 may seem the most troublesome. Actually it is

perfectly clear that the plaintiff should win it. We can see

this by comparing the situation of two employees of the same

employer, doing the same job, both equally subpar but one

is black and the other white. Under the facts assumed in

case 4, the black will be fired but not the white, because his

deficiencies are not alone enough to get one fired; one must

be of the “wrong” race as well. It is a clear case of racial

discrimination with consequences. An employer doesn’t have

to retain marginal employees, or for that matter superior

ones; but he cannot use race to differentiate between those he

retains and those he fires. The only difference between this

case and case 2 is that if the plaintiff were a better worker,

he might have been retained despite the defendant’s racial

hostility, and so there is a sense in which he contributed to

his own downfall. But this, it should be made clear to the

jury, has no legal significance.

So: defendant wins 1; plaintiff wins 2 and 4, and 3 goes to

the jury with an instruction placing the burden of proving

an absence of a causal relation on the defendant.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-30-04