The full case caption appears at the
end of this opinion. Manion, Circuit Judge. After what appeared to bea successful period of employment as a civilianNavy employee, Richard Cullom accepted a positionwith the Hines VA Hospital as a staffingspecialist. But he soon became dissatisfied withhis employment situation and over a period oftime he filed several EEO complaints against theVeterans Administration (VA) for discrimination.In the hope of avoiding future complaints,superiors at the hospital ordered Cullom’simmediate supervisor to overrate him on hisperformance evaluations. This did not work. Cullom ultimately sued the VA for race andemployment discrimination, this time claimingthat by overrating him, it made him ineligiblefor a remedial program that supposedly would haveaccelerated his advancement to a higher grade.The district court noted that “the case presentsthe novel question of whether Plaintiff wasretaliated against by receiving a favorable workevaluation while being refused promotion. Alternatively, the case raises the question ofwhether Plaintiff was retaliated against byreason of Defendant’s failure to providePlaintiff with an honest evaluation and theremedial benefits to which he was then entitled.”Cullom v. Brown, 27 F. Supp.2d 1089, 1090-91(N.D. Ill. 1998). The district court concludedthat the unwarranted favorable ratingsconstituted retaliation in violation of TitleVII, and awarded Cullom $1500 in damages plusattorney’s fees and costs. We conclude thatgiving Cullom a rating higher than he deservedmay have been a poor and even dishonest policy,but it was not unlawful retaliation. We thereforereverse. I. Facts Richard Cullom is a 55-year-old black man and anhonorably discharged veteran. Prior to coming tothe VA, he had jobs in both the public andprivate sectors (including one stint as an EEOspecialist for the United States Army).Immediately before joining the VA, Cullom workedas a civilian for the Navy, where he waseventually promoted to the GS-11 level. While atthe Navy, Cullom was rated “fully successful” atboth the GS-9 and GS-11 levels.
[FOOTNOTE 1] As the district court noted, Cullom has had a”rocky employment history with the VA.” Id. at1091. It hired him in September 1990 as a GS-9staffing specialist on a temporary appointment(not to exceed one year). Six months into thisassignment, his immediate supervisor, a blackfemale, thought Cullom’s work was unacceptableand fired him effective March 21, 1991. Cullomfiled an EEO complaint (his first), alleging thathis supervisor had discriminated against him onthe basis of his sex by depriving him of theproper training. The VA settled his complaint inOctober 1992. Under the settlement, the VAreinstated Cullom as a full-time GS-9 personnelstaffing specialist, subject to a six-monthprobationary period. Significantly, thesettlement “set forth written performancestandards” for him. Id. Although Cullom’s GS-9 position, even with hisprobationary status, had the potential forpromotion to GS-11, Cullom did not perform well.His immediate supervisor, Dean Lapcewich, wasfrequently displeased with his work. When Cullomrequested a series of training opportunities toassist him in his new position, Lapcewichestablished a comprehensive training program forCullom and authorized him to attend trainingcourses. He also assigned Cullom a seniorstaffing specialist who could mentor him andprovide him with on-the-job training. But despitethese efforts, Cullom continued to perform poorlyat the GS-9 level. The VA has five ratings for employeeperformance: (1) outstanding; (2) highlysuccessful; (3) fully successful; (4) minimallysuccessful; and (5) unacceptable. Under the VA’sMerit Promotion Plan (Merit Plan), promotion isnot guaranteed. An employee must achieve a ratingof at least “fully successful” to be eligible forpromotion and must be in his present position forat least one year. But simply being eligible doesnot make advancement a sure thing. The employeemust also demonstrate the ability to perform theduties of the next level.
[FOOTNOTE 2] Lapcewich wanted to rate Cullom “minimallysuccessful” because he felt his work containedsignificant and numerous errors, even after hissubstantial formal and informal training. Becauseof Cullom’s probationary status, a “minimallysuccessful” rating would most likely haveresulted in his termination. At a minimum, itwould have caused Cullom to be placed in aPerformance Improvement Program, or “PIP.” Thisis, in essence, a remedial program for employeeswho are not performing up to standards (those whoreceive a performance rating below “fullysuccessful”). It affords sub-par employees theopportunity to improve or develop skills. Butthis “opportunity” is double-edged. Placement ina PIP also places the employee on probation,subject to termination. At oral argument, the VApointed out that for many employees it is thelast stop before dismissal. Fearing another EEO complaint if Cullom were toreceive the lower rating, Lapcewich’s supervisor–who was required to sign off on employeeevaluations–rejected Lapcewich’s proposed”minimally successful” recommendation. He insteaddirected Lapcewich to overrate Cullom as “fullysuccessful.” Lapcewich rated Cullom accordinglyand did not advise him of the “minimallysuccessful” level of performance he was reallyexhibiting at the GS-9 level. Lapcewich did,however, meet with Cullom to discuss performancestandards, although Cullom refused to sign a formindicating that he had received the standards. The strategy of appeasement, if it can be calleda strategy, did not work. In September 1993,Cullom filed a second EEO complaint. He allegedthat Lapcewich and other VA managers hadretaliated against him for his prior EEOcomplaint by not promoting him to the level thathe had held in the Navy, GS-11. He allegedLapcewich knew about his Navy background, yet”remained completely driven to make me competeagain for the grade I previously had.” In December, while Cullom’s second EEO complaintwas pending, Lapcewich gave Cullom his mid-yearperformance review. As before, Lapcewich thoughtCullom was not performing at the GS-9 level. Butagain, aware of Cullom’s complaint, highersupervisors directed Lapcewich to overrate him as”fully successful.” Lapcewich did so, rather thanplace Cullom in a PIP on probationary status, asa lower rating would have required. Again,Lapcewich did not inform Cullom of his true levelof performance. But he did tell him that he wasmaking too many mistakes, that his work requiredtoo much review, and that he took too long on arelatively minor project. In April 1994, the VA settled Cullom’s secondcomplaint by agreeing to place him in a nine-month, off-site program designed to train”personnel interns” who were usually GS-7s.Placing Cullom in this program was the idea ofCullom’s EEO investigator who concluded, afterreviewing Cullom’s personnel file, that theprogram would provide Cullom with basic personnelskills (skills Cullom had contended that he didnot possess due to inadequate training). Thesettlement, however, did not mention thepossibility of promotion to GS-11. After the off-site training got underway,Lapcewich evaluated Cullom for the most recentrating period (which had ended shortly beforeCullom’s departure). He concluded that Cullomstill had not been performing at the GS-9 level.Yet, for at least the third time, Lapcewich’ssuperiors rejected his proposed rating of”minimally successful” and directed him to rateCullom “fully successful.” The undisputed motivefor overrating Cullom was to placate him so hewould not file another EEO complaint. At the end of the off-site training in February1995, the training supervisor concluded thatCullom had “successfully completed” the internprogram. Although this supervisor thought thatCullom exhibited a poor attitude and that hiswork was worse than that of his (GS-7) trainingpartner, he nevertheless stated that Cullom wouldbe “an excellent candidate for placement” at a VAfacility. In April, Cullom returned to the Hinesfacility. In spite of efforts that could generously bedescribed as trying to give Cullom the benefit ofthe doubt (for example, the VA once againassigned him a mentor), Cullom filed a third EEOcomplaint. He demanded performance standards anda retroactive GS-11 promotion. When Cullom andthe VA were unable to resolve the complaint,Cullom filed this lawsuit, alleging he was denieda GS-11 promotion because of his race and inretaliation for his prior EEO complaints. While the lawsuit was pending, Cullom continuedto work as a GS-9, and his supervisors continuedto complain about his performance. His newsupervisor, Claire Hajduk, did not believe thatCullom had demonstrated the ability to performGS-11 work, as the VA’s Merit Plan requires forpromotion. In November 1996, Hajduk neverthelessconvinced her supervisor to sign off on Cullom’spromotion by stating that she believed it mightfinally “jump-start” him to perform better andbecause she would then be better able to evaluatewhether he was really unable to do GS-11 work.Again, when rating time came around, Hajduk (likeLapcewich before her) did not want to rate Cullom”fully successful.” But because her supervisorwould not allow a lower rating, Hajduk ratedCullom’s performance as “fully successful” at hisnew grade of GS-11. Finally, in November 1997, Blanche Phillips, ablack female, began supervising Cullom. Cullomcontinued to perform poorly in several respects,and Phillips received numerous complaints abouthis work, forcing her to reassign some of hiswork. She still gave him a rating of “fullysuccessful,” even though she knew he wasexperiencing significant work-related problems.She testified that Cullom continues to experiencesuch problems. The district court dismissed Cullom’s racediscrimination claim, and his retaliation claimwas tried before a magistrate judge. The VA hadno choice but to admit that it did not follow itsnormal procedures in rating Cullom, and becauseCullom had received favorable (althoughundeserved) ratings, the court concluded that theVA failed to present a non-retaliatory reason fordenying him an earlier promotion.
[FOOTNOTE 3] Of course,its non-retaliatory reason was that he had notdemonstrated that he was capable of performing atthe next level, but that flew in the face of theseries of formal, favorable evaluations he hadreceived. The district court essentiallyconcluded that the VA reacted to Cullom’slitigious nature by “retaliating” against him bygiving him more than he deserved. As the districtcourt noted, “[b]ut for Plaintiff’s complaints tothe EEOC, he would have received the correctperformance evaluation and would have receivedthe feedback required in order to achievepromotion. Instead, as a result of his activity,he was given false evaluations and was denied aperformance improvement plan [PIP] to improve hiswork performance, thereby denying him theopportunity for promotion.” Cullom, 27 F. Supp.2dat 1096. It concluded that the VA “cannot providean employee with satisfactory evaluations andthen deny the same employee a promotion on thetheory that the evaluations are false.” Id. at1097. The usual case of retaliation in violation ofTitle VII occurs when an employee suffers anadverse job action because he complained aboutsome form of discrimination. No doubt Cullomfiled numerous EEO complaints. And having hispromotion to GS-11 delayed can be labeled amaterial adverse job action. But had VAsupervisors not “retaliated” by giving him, anincompetent employee, undeserved favorabletreatment and evaluations (and ultimately apromotion to GS-11), he would have likely beendemoted, placed on probation, and quite possiblyterminated. The question before us, then, iswhether it is a violation of Title VII for anemployer to in effect delay kicking someoneupstairs (with more pay and a higher grade level)instead of kicking him down and possibly out. Aclose examination of the statute reveals thatthis undeniably poor policy does not violate theAct. II. Discussion Subsection 3(a) of 42 U.S.C. sec. 2000e “hasbeen construed to prohibit an employer frompursuing retaliatory measures . . . against anemployee for exercising his or her rights underTitle VII.” Reed v. Shepard, 939 F.2d 484, 492(7th Cir. 1991).
[FOOTNOTE 4] Under the statute, aplaintiff must establish three basic elements bya preponderance of the evidence to prove a claimof retaliation: (1) that he opposed an unlawfulemployment practice; (2) that he was the objectof adverse employment action; and (3) that theadverse employment action was caused by hisopposition to the unlawful employment practice. Hamann v. Gates Chevrolet, Inc., 910 F.2d 1417,1420 (7th Cir. 1990) (citing Klein v. Trustees ofInd. Univ., 766 F.2d 275, 280 (7th Cir. 1985)).In order to prove causation, “the plaintiff mustdemonstrate that the employer would not havetaken the adverse action ‘but for’ the protectedexpression.” Johnson v. University of Wis.-EauClaire, 70 F.3d 469, 479 (7th Cir. 1995); seealso McNutt v. Board of Trustees of Univ. ofIll., 141 F.3d 706, 709 (7th Cir. 1998) (after1991 amendments to Civil Rights Act, plaintiffstill required to prove “but for” causation toestablish claim of retaliation). This is the”ultimate inquiry” in evaluating a Title VIIclaim. See Heerdink v. Amoco Oil Co., 919 F.2d1256, 1261 (7th Cir. 1990). But while Title VIIprevents employers from punishing their employeesfor complaining about discrimination, it does notprevent an employer from unjustifiably rewardingan employee to avoid a discrimination claim. See42 U.S.C. sec. 2000e-3(a). We review the district court’s factual findingfor clear error. Fed. R. Civ. P. 52(a). Brennerv. Brown, 36 F.3d 18, 19 (7th Cir. 1994). “Ourscrutiny . . . is deferential, but it is notabject.” Carr v. Allison Gas Turbine Div.,General Motors Corp., 32 F.3d 1007, 1008 (7thCir. 1994). “We must distinguish between asituation in which ‘we think that if we had beenthe trier of fact we would have decided the casedifferently and the situation in which we arefirmly convinced that we would have done so.’”Turgeon v. Premark Intern., Inc., 87 F.3d 218,221 (7th Cir. 1996) (emphasis in original)(quoting Carr, 32 F.3d at 1008). For an employee to prove retaliation, he mustdemonstrate that he has suffered some sort ofadverse employment action. Ribando v. UnitedAirlines, Inc., 200 F.3d 507, 510 (7th Cir.1999). But as we have often said, “not everythingthat makes an employee unhappy is an actionableadverse action.” Id. at 511 (quoting Smart v.Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996)). To be “adverse,” the action “must be’materially’ adverse, meaning more than ‘a mereinconvenience or an alteration of jobresponsibilities.’” Id. at 510 (quoting Crady v.Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d132, 136 (7th Cir. 1993)). Cullom variously complains about three “adverseactions”: his receipt of overly generous (andthus inaccurate) performance evaluations, hisfailure to be placed in a PIP (which would entailprobation and remedial training), and the VA’sfailure to promote him more quickly. The firsttwo can hardly be called “adverse actions.”Overrating an employee may be a misguided way ofavoiding controversy, but it is not an adverseact, let alone a material one. In fact, when itcomes to performance ratings, most retaliationclaims involve a supervisor underrating asubordinate for engaging in protected activity.See Adusumilli v. City of Chicago, 164 F.3d 353,359 (7th Cir. 1998). Even then, we have held thatnegative job ratings, without more, are not”adverse actions.” See Smart, 89 F.3d at 442(“There is little support for the argument thatnegative performance evaluations alone canconstitute an adverse employment action.”);accord Silk v. City of Chicago, 194 F.3d 788,802-803 (7th Cir. 1999) (listing cases);Gustovich v. AT&T Communications Inc., 972 F.2d845, 847 (7th Cir. 1992). Given this precedent,it would be strange to label as an “adverseaction” evaluations that an employee complainsare “too good.” Cullom also claims that his failure to be placedin a PIP was an adverse action. Recall that sucha placement must be preceded by an unsatisfactoryrating in job performance. True, once demoted toa PIP, an employee would receive some remedialtraining, and a failure to receive training mightbe an adverse action. See Pafford v. Herman, 148F.3d 658, 667 (7th Cir. 1998). But as Cullomacknowledges, a PIP is a remedial program forprobationary employees. The next step foremployees in PIP could very well be termination,not promotion. The adversity of an employmentaction is judged objectively, and no reasonableperson would call “adverse” an employer’s failureto demote him to a remedial program and place himon probation. See Brown v. Brody, 199 F.3d 446,457 (D.C. Cir. 1999); Doe v. Dekalb County Sch.Dist., 145 F.3d 1441, 1449 (11th Cir. 1998). On the contrary, most employees would claim thatbeing placed in such a remedial program is anadverse action. See Adusumilli, 164 F.3d at 358-59, 363. And we have suggested that being placedon probation could also be an adverse action. SeeSmart, 89 F.3d at 442 (while negative evaluationsalone did not constitute an adverse action, ifplaintiff “had been, as she alleges, put onprobation, we might have a different case beforeus.”). Thus, if anything, the VA’s overlygenerous job evaluations saved Cullom fromsuffering two potentially “adverse actions,”demotion and probation. Obviously, there is someflexibility in defining an “adverse act.” SeeRibando, 200 F.3d at 510. But we are not soflexible that we will bend over backwards anddefine as adverse a situation where an employeroverrates an employee, thus preventing theemployee from being placed on probation in aremedial program that frequently leads totermination. Cullom leans heavily on Vaughn v. Edel, 918 F.2d517 (5th Cir. 1990), a case of racediscrimination where the employer, out of fear ofa discrimination claim, overrated the plaintiff(whose performance nevertheless deteriorated, andwho was eventually fired). In terms of an”adverse action,” however, Vaughn differs in twocritical respects and will not support Cullom.First, Ms. Vaughn’s employer did not give her anyindication, either formally or informally, of herunsatisfactory performance. Id. at 520 (Ms.Vaughn was “not in any way formally criticized ortold anything regarding these problems”); id. at522 (“Had her dissatisfied supervisors simplycounseled Vaughn informally, such counselingwould inevitably have indicated to Vaughn thather work was deficient.”). Second, and as aresult, it did not afford her the opportunity toimprove her performance. Id. (“Texaco did notafford Vaughn the same opportunity to improve herperformance . . . as it did its whiteemployees.”). By contrast, notwithstanding his inflatedevaluations, the VA frequently advised Cullomthat his work was deficient. See Cullom, 27 F.Supp.2d at 1091 (“Throughout the course of hissupervision of Plaintiff, Lapcewich expresseddispleasure with the quality of Plaintiff’s workand periodically returned Plaintiff’s work withits deficiencies highlighted.”). Further, it gavehim written performance standards (id.), met withhim to discuss these standards (id. at 1092),granted his request for a tailor-made trainingprogram (id. at 1091), allowed him to takeseminars (id. at 1092), gave him additional,nine-month off-site training (id.), provided himmentors on two occasions (see, e.g., id. at1094), and closely supervised his work (see,e.g., id.). The VA, then, was not excludingCullom “from its efforts to improve efficiency”in contravention of Title VII. Contrast Vaughn,918 F.2d at 523. By affording Cullom particulartraining and guidance, the VA actually gave him abetter chance to improve his performance. This”special treatment” gave Cullom the opportunityto improve his skills without having to bear thestigma and risk the negative consequences(probation and possible termination,respectively) that would have accompanied a PIP. We now turn to Cullom’s remaining claim of anadverse action–the VA’s failure to promote himsooner. Of course, because a failure to promoteaffects the rate of pay and the accrual of leave,denying Cullom an earlier promotion was not onlyadverse, it was materially adverse. Thus, itqualifies as an “adverse action” for purposes ofTitle VII (and the VA concedes as much). SeeWilliams v. Pharmacia, Inc., 137 F.3d 944, 948(7th Cir. 1998). The question is whether thedistrict court clearly erred in finding thatCullom “established a causal link between hisprotected expression in filing EEO complaints andhis failure to be promoted.” Cullom, 27 F.Supp.2d at 1095. According to the district court,that link was the VA overrating Cullom as “fullysuccessful”: he had already filed several EEOcomplaints, and VA supervisors hoped to avoidfuture filings by giving him inflated ratings.Id. at 1096. For two reasons, the district courterroneously concluded that this link showed thatCullom’s EEO filings caused him not to bepromoted earlier. First, the district court held that under theMerit Plan Cullom’s fully successful performanceratings entitled him to a promotion. Id. Thus, itconcluded, the fact that the VA did not promotehim earlier must have been because it wasretaliating against him for filing EEOcomplaints. Id. at 1096-1097. This conclusion isclearly erroneous. As the district court earlierfound (see n.2 supra), there is no entitlement topromotion based solely on a job rating. Under theMerit Plan, a “fully successful” rating is merelya threshold requirement; an employee who does notsatisfy this minimum criterion is not eveneligible for promotion. If he does satisfy it, hethen has to have shown that he can perform at thenext level. Promotion to the next higher grade in a career-ladder is not guaranteed and is dependent on theemployee meeting all statutory and regulatoryrequirements (i.e. minimum qualifications, time-in-grade, etc.), the employee’s demonstration ofthe ability to perform the duties of the nexthigher graded position as determined by thesupervisor, and availability of work at the nexthigher grade. No employee is eligible to receivea career-ladder promotion if the employee has aperformance rating of record or specialperformance rating of record of less than fullysuccessful. Id. at 1096 (emphasis added) (setting outrelevant part of Merit Plan). Clearly, Cullom wasnot performing up to par when he received hisinflated ratings, let alone up to GS-11 standards(the district court even credited the VA’stestimony that Cullom has exhibited significantperformance problems throughout his tenure). Id.at 1091-1093. Given his performance history, thedistrict court clearly erred in holding thatCullom’s formal ratings, by themselves, showedthat he was performing at the GS-11 level, thathe was thereby entitled to promotion, and thus”but for” his EEO complaints, he would have beenpromoted sooner. See Adusumilli, 164 F.3d at 363-364 (holding that no rational jury could findcausation based on favorable performanceevaluations because they are “makeweightevidence” and of “little significance” when thereis so “dramatic a discrepancy between evaluationand performance”). While this error alone is sufficient to reverse,we should address the more perplexing error inthis case. In order to find retaliation, thedistrict court had to string together a series ofevents linking Cullom’s EEO filings to the delayin his promotion. The district court attempted todo this, but it misconstrued the last event inthe series: But for Plaintiff’s complaints to the EEOC, hewould have received the correct performanceevaluation and would have received the feedbackrequired in order to achieve promotion. Instead,as a result of his activity, he was given falseevaluations and was denied a performanceimprovement plan [PIP] to improve his workperformance, thereby denying him the opportunityfor promotion. Cullom, 27 F. Supp.2d at 1096. Recall, though,that the “adverse action” is not Cullom’s failureto be placed on probation in a PIP (for missingout on this particular “opportunity forpromotion” under these circumstances does notqualify as an adverse action); instead it isCullom’s failure, in fact, to be promotedearlier. The district court’s causation analysisthus should have continued further. The proper chain is as follows: had it not beenfor Cullom’s prior EEO activity, he would havereceived accurate (lower) evaluations and beenplaced in a PIP, and if he had been placed onprobation in such a program, he would havesuccessfully completed it and developed theskills necessary to perform at the (next) GS-11level. It is the last part of this chain that isthe weak link. Nothing in the record shows thathad Cullom been placed in a PIP, he would havesuccessfully completed it. The evidence, ifanything, indicates just the opposite: Cullom didnot even positively distinguish himself inperforming GS-7 duties at the off-site interntraining program and, for over four years, hadconsiderable difficulty performing GS-9 duties,despite the substantial formal and informalguidance and training he had received. Becausethere is not substantial evidence that Cullomwould have successfully completed a PIP, he didnot establish that had he been placed onprobation in this program, he would have, after amost circuitous route, been promoted earlier. SeeWillis v. Marion County Auditor’s Office, 118F.3d 542, 547 (7th Cir. 1997) (plaintiff failedto produce evidence to establish causation). Moreover, even if the record somehow showed thatCullom would have successfully completed aremedial PIP, that would have at bestrehabilitated Cullom’s GS-9 skills. There wascertainly no assurance, and likely littleprobability, that this more elementary trainingwould have caused him to develop GS-11 skills.Thus the district court incorrectly had topresume that by being placed in a GS-9 PIP,Cullom would have developed GS-11 skills. Thisalso was clear error. As to causation, then, theevidence gives no indication that had Cullom beenrated accurately (as performingunsatisfactorily), he would have likely beenpromoted sooner. Cullom thus has not provenretaliatory discrimination under Title VII. III. Conclusion The district court concluded that the VAoverrated Cullom out of concern that if it gavehim the lower rating he deserved, he would, ineffect, “retaliate” against it by filing anotherEEO complaint. Cullom, 27 F. Supp.2d at 1097(“one can say that Plaintiff may have used theEEO complaint system as an offensive weapon and athreat”). As a policy matter, the VA’s behavioris indefensible. It certainly would have beenbetter if the VA had had the fortitude to rateCullom accurately (although in doing so it wouldhave probably been risking another EEOcomplaint). But Title VII liability does not turnon ill-advised personnel decisions. Mechnig v.Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7thCir. 1988). And while honesty may be, as thedistrict court put it, “the best policy,” it isnot for a federal court to say that for jobevaluations it is “the required policy.” Cullom,27 F. Supp.2d at 1090 (emphasis added). SeeWallace v. SMC Pneumatics, Inc., 103 F.3d 1394,1398 (7th Cir. 1997) (performance evaluations”serve a variety of purposes, only one of whichis objective evaluation. They are also morale-builders and motivators.”). Thus overratingCullom so he would not be placed on probation,while giving him substantial training andoversight, was not “retaliatory” discriminationunder Title VII. For the foregoing reasons, the judgment of thedistrict court is REVERSED and this case is REMANDEDfor the district court to enter judgment in favorof the defendant. :::FOOTNOTES:::
FN1 “GS” refers to the “government scale” pay levels”for VA employees paid on salary instead of a perhour basis.” Hughes v. Derwinski, 967 F.2d 1168,1170 n.1 (7th Cir. 1992).
FN2 The district court found that “[t]ypically, anemployee can be promoted to the next level afterfully successfully performing at the previouslevel for the prescribed time period. Forinstance, although not automatic, a GS-9 can bepromoted to GS-11 following a one-year period offully successful performance as a GS-9. Inaddition to spending a year at the previousgrade, an employee must also demonstrate theability to perform the duties of the next highestgrade.” Id. at 1096 (emphasis added).
FN3 An employee can establish his employer’s intentto retaliate either directly or indirectly (thelatter way by using the McDonnell Douglas burden-shifting method). Miranda v. Wisconsin Power &Light Co., 91 F.3d 1011, 1015 (7th Cir. 1996).Cullom proceeded under the McDonnell Douglasframework. After trial, the various presumptionsand burdens of the framework fall out, and thefact-finder is left with determining whether theplaintiff has established the ultimate issue ofintentional retaliation. United States PostalServ. Bd. of Governors v. Aikens, 460 U.S. 711,713-716 (1983); St. Mary’s Honor Ctr. v. Hicks,509 U.S. 502, 510-511 (1993). The district courthere erred in sticking with McDonnell Douglasafter trial, but its findings are clear, andCullom was able to present his case; thus, we canreview whether he established the ultimate issue.Contrast Aikens, 406 U.S. at 717 (case had to beremanded due to district court’s requirement thatplaintiff use only direct evidence to provediscriminatory intent).
FN4 “It shall be an unlawful employment practice foran employer to discriminate against any of hisemployees or applicants for employment . . .because he has opposed any practice made anunlawful employment practice by this subchapter,or because he has made a charge, testified,assisted, or participated in any manner in aninvestigation, proceeding, or hearing under thissubchapter.” 42 U.S.C. sec. 2000e-3(a).
Cullom v. Brown In the United States Court of Appeals For the Seventh Circuit No. 99-1178 Richard Cullom, Plaintiff-Appellee, v. Jesse Brown, Secretary, Department of VeteransAffairs, Defendant-Appellant. Appeal from the United States District Courtfor the Northern District of Illinois, Eastern Division. No. 96 C 1925–Morton Denlow, Magistrate Judge. Argued September 29, 1999–Decided April 20, 2000 Before Harlington Wood, Jr., Manion, and Evans, CircuitJudges.
