7th Circuit Affirms Race Discrimination Judgment Against Marion County Coroner's Office

The 7th Circuit Court of Appeals today issued an opinion upholding a judgment in favor of former Chief Deputy Coroner John Linehan in his race discrimination claim against the Marion County Coroner's Office during the troubling one-term tenure of Kenneth Ackles. The Court, however, remanded the case for further review of the compensatory damage award of $200,000, finding it was excessive. An administrative law judge for the EEOC found in Linehan's favor previously and awarded him his lost wages and compensatory damages. On appeal, the EEOC in Washington affirmed the ALJ's opinion in full and the Marion County Coroner's Office appealed the decision to the 7th Circuit Court of Appeals. I'll update with more information later. Hat tip to the Indiana Law Blog.


UPDATE: Here's a factual summary of the case discussed in today's decision by the three judge panel.

In November 2004, Ackles, a chiropractor by trade, was elected coroner. At that time, Linehan and Alfarena Ballew, an African-American deputy coroner, both sought the position of chief deputy coroner. Ackles chose Linehan for the job because he was currently serving as the interim chief deputy, and Ackles wanted to maintain continuity in the office. Ackles and Linehan were sworn in as coroner and chief deputy coroner, respectively, in January 2005.

Soon after, Ackles met with Linehan to discuss his (Ackles’) agenda. During their conversation, Ackles said that he “really needed to find a way to get more African-Americans into the Coroner’s Office,” especially as deputies. Ackles asked Linehan to determine how to execute this plan. Linehan contacted the city’s legal office and learned that deputy coroners could not be removed without cause. Nevertheless, a city/county council member who had been on Ackles’ campaign committee regularly sent Linehan resumes and encouraged him to hire more African-American staff . . .

In June or July 2005, Linehan recommended disciplining Ballew for multiple performance issues. On one occasion, it took Ballew over an hour to arrive at the scene of a homicide, although office policy required that she respond within thirty minutes. During her absence, the victim was left lying in the street, with her friends and family watching. On another occasion, Ballew took more than two hours to arrive at a hospital where a child was dying. The family wanted to donate the child’s organs, but because Ballew arrived late, the organs were no longer usable. On that occasion, Linehan offered to send another deputy, but Ballew assured him that she would be “right there.” Despite these incidents, Ackles told Linehan not to discipline Ballew.

Ballew’s problems continued the next month when, despite arriving thirty minutes late for a mandatory staff meeting, she prepared a time sheet indicating that she had arrived on time. Linehan wanted to discipline Ballew, but Ackles once again stopped him from filing a written report. When Ballew continued to arrive late to meetings and crime scenes, however, Linehan prepared a written reprimand with the assistance of the human resources office (and without Ackles’ knowledge). Linehan later testified that he normally did not submit proposed disciplinary actions to the coroner for approval. He did so initially in Ballew’s case, however, to avoid the appearance of bias, as she had applied for the position of chief deputy coroner. Shortly thereafter, an anonymous letter was sent to members of the city/county council accusing Linehan of "double dipping” or “ghost employment”—that is, billing the coroner’s office for time spent working elsewhere. Indeed, Linehan was working as a paramedic on his days off. But outside employment was permitted, and Linehan had previously disclosed this information. In response to Ackles’ questions about the letter, Linehan gave him written documentation demonstrating the validity of his hours. Ballew later admitted to authoring the anonymous letter . . .

In early November 2005, Ballew failed to attend another mandatory meeting. When Linehan confronted her, Ballew yelled at him, called him a liar, threatened him, and accused him of mistreating African-American staff. Ballew also claimed that she had received permission from Ackles to skip the meeting. Linehan attempted to contact Ackles but was unable to reach him. When Linehan finally spoke to Ackles, he had already discussed the matter with Ballew. Ackles told Linehan that he could no longer discipline Ballew without his (Ackles’) permission.

Troubled by the incident, on November 14, 2005, Linehan filed a complaint with the human resources office, alleging a hostile work environment. Later that day, Ackles told Linehan that he was “going to make a change in chief deputies” but did not provide an explanation. During the same conversation, and on several other occasions, Ackles told Linehan to get his hostile work environment complaint “taken care of.” Ackles also said that he wanted a smooth transition to the next chief deputy coroner and that Linehan was to continue performing his duties until the transition occurred. Linehan continued to receive the same pay, although he was stripped of responsibility for supervising employees. The office staff were later informed that Linehan would no longer be chief deputy coroner. They were told to consult Keith Conaway, a white deputy coroner, regarding runs and Ballew regarding death certificates. Linehan’s understanding was that he would become a deputy coroner once he was removed as chief deputy.

Linehan subsequently left on a previously scheduled vacation. Just prior to his departure, he received a call from a reporter about an investigation into the ghost employment allegations. Linehan called the city’s legal office, but it too was unaware of any investigation. While he was away, however, a news story came out quoting Ackles as saying that Linehan was being investigated. Upon returning to work, Linehan discussed the ghost employment allegations with Ackles and expressed disappointment that he told the media about a nonexistent investigation. Linehan also discovered papers in his office left by Ballew, including a list of tasks she intended to undertake as chief deputy coroner, a plan to review the office’s pathology contract, and a copy of the anonymous letter accusing Linehan of ghost employment.

On December 2, 2005, Linehan received a letter from Ackles terminating his employment . . .

Conaway took over Linehan’s duties on an interim basis. A few weeks later, however, Ackles named Ballew as Linehan’s permanent replacement . . .

After Linehan left, Ackles and Ballew cancelled the coroner’s office’s contract with Forensic Pathology Associates (FPA), a company that performed autopsies for the county. They ultimately hired one non-FPA pathologist and four FPA support staff, all of whom were African-American, and declined to hire any FPA pathologists or other support staff, all of whom were white. During this time, a receptionist overheard Ackles and Ballew discussing the pathology contract. Ackles “was kind of laughing and said, ‘I will put my people where they belong.’ ” Ballew was “kind of laughing back” and responded, " ‘We’re in charge?’ and he said, ‘Yup.’ ”

Here is the Court's reasoning in today's opinion for affirming the EEOC's determination that the Marion County Coroner's Office discriminated against Linehan because of his race:

The EEOC determined that Ackles’ stated reason for taking action against Linehan—namely, that Ackles had “lost confidence and trust” in Linehan—was pretextual. Substantial evidence supports this finding. For example, Ackles testified that he lost confidence and trust in Linehan because he was “nit-picking” certain employees, including Ballew and the janitor. Putting aside the fact that Ackles’ so-called disagreements with Linehan about Ballew were the very basis for Linehan’s race discrimination claim, a wealth of evidence supported Linehan’s decision to discipline her, which he did only once. Furthermore, Ackles admitted that Linehan did not have the ability to fire employees, casting doubt on Ackles’ assertion that he feared Linehan would terminate Ballew. And as for the janitor, the evidence showed that Linehan found missing property in the janitor’s closet. Ackles himself acknowledged that, under those circumstances, it would be proper to discipline the janitor. The EEOC therefore could have reasonably found that these reasons were insufficient to motivate the employment action.

Relatedly, the coroner’s office also claims that Ackles disapproved of Linehan’s handling of the investigation into the missing funds. As we pointed out at oral argument, however, it is hard to see how Linehan’s handling of the investigation—which included contacting the city’s legal office and following its instructions to file a police report—could be worthy of disapproval . . .
 
Ackles also testified that he was dissatisfied with Linehan’s raise. The EEOC found his testimony incredible, however, because Ackles reviewed the budget providing for the raise when he was elected. Moreover, as Ackles knew, Linehan prepared the budget when he was serving as the interim chief deputy coroner. At that time, Linehan could not have known that he would be in the position of chief deputy coroner the following year . . .

The point is that there was enough evidence to demonstrate that Ackles’ stated reason for taking action against Linehan was pretextual. Ackles’ lack of credibility, combined with his stated preference for employing African-Americans and his actions taken in furtherance of that goal, was sufficient for the EEOC to find that Linehan was subjected to race discrimination.

Here's the Court's ruling that Linehan's award of $200,000 in compensatory damages was excessive:

The final issue is whether the compensatory damage award of $200,000 was acceptable. In reviewing these determinations, we typically ask: (1) whether the award is “monstrously excessive”; (2) whether there is no rational connection between the award and the evidence; and (3) whether the award is comparable to those in similar cases. Fox v. Hayes, 600 F.3d 819, 845 (7th Cir. 2010). “An award for nonpecuniary loss can be supported, in certain circumstances, solely by a plaintiff’s testimony about his or her emotional distress.” Tullis v. Townley Engineering & Manufacturing Co., Inc., 243 F.3d 1058, 1068 (7th Cir. 2001).

That said, the evidence here does not come close to supporting the $200,000 award for compensatory damages. The testimony on Linehan’s suffering was extremely brief and only indicated that Linehan had undergone “[w]eekly” therapy sessions for “[s]everal months” for “[s]ituational depression.” Nor are the underlying facts of Linehan’s case—to sum up, he was fired from a political post because of his race and in retaliation for filing an internal complaint after a few verbal altercations with his superior—so extraordinary as to warrant such an award. Cf. Neal v. Honeywell, Inc., 191 F.3d 827, 832 (7th Cir. 1999) . . .

When asked at oral argument what Linehan’s award should be, the coroner’s office’s counsel replied, “Zero.” While we agree that the amount is excessive under the circumstances, surely some measure of compensatory damages for emotional distress is warranted. Based on our review of the evidence and comparable cases, we believe that a remittitur to $20,000 would keep the award within rational limits. If the respondents do not consent to the remittitur, there will be a new hearing on the issue.

For the foregoing reasons, the petition for review is DENIED IN PART and GRANTED IN PART. The compensatory damages award is VACATED, and the matter is REMANDED to the EEOC for proceedings consistent with this opinion.

In the interest of disclosure, I have represented several plaintiffs in race discrimination claims against the Marion County Coroner's office, along with my co-counsel, Jeff McQuary. Two of those cases brought by former employees were settled by the coroner's office for $100,000. A third case involves the former forensic pathology firm and the doctor-owners of that firm. Judge William Lawrence dismissed that case on the Coroner's Office motion for summary judgment, and the case has been appealed to the 7th Circuit Court of Appeals where it is currently pending.

To see my earlier post on the EEOC decision, click here. To see my earlier post on the ALJ's decision, click here.