In the
United States Court of Appeals
For the Seventh Circuit

No. 01-3210

Alfred L. Stone,

Plaintiff-Appellant,

v.

City of Indianapolis Public Utilities
Division, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 98 C 190--David F. Hamilton, Judge.

Submitted December 18, 2001--Decided February 19, 2002



  Before Posner, Manion, and Rovner, Circuit
Judges.

  Posner, Circuit Judge. The plaintiff in
this employment discrimination suit
appeals from the grant of summary
judgment for the defendants. As explained
in an unpublished order issued today,
none of the plaintiff’s claims has any
merit, and summary judgment was therefore
properly granted. We limit this published
opinion to a question on which
clarification is needed. It is the proper
standard for summary judgment when a
plaintiff claims that he was retaliated
against for complaining about employment
discrimination. Two formulations are
found in our cases, both adaptations of
the ubiquitous McDonnell Douglas test for
summary judgment in discrimination cases.
See McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). One is that the
plaintiff is entitled to summary judgment
if he shows that (1) after lodging a
complaint about discrimination, (2) only
he, and not any otherwise similarly
situated employee who did not complain,
was (3) subjected to an adverse
employment action even though (4) he was
performing his job in a satisfactory
manner; unless (5) the defendant presents
evidence of a reason (good or bad,
provided only that it is not one that the
law forbids) for the adverse action.
Hiatt v. Rockwell Int’l Corp., 26 F.3d
761, 767-68 (7th Cir. 1994); McEwen v.
Delta Air Lines, Inc., 919 F.2d 58, 59
(7th Cir. 1990). The other formulation of
the prima facie case of retaliation
requires, in addition, (6) proof of a
"causal link" between the protected
expression in which the plaintiff engaged
(as by filing a complaint about an
unlawful act by his employer) and the
adverse employment action of which he is
complaining. E.g., Miller v. American
Family Mutual Ins. Co., 203 F.3d 997,
1007 (7th Cir. 2000); Sauzek v. Exxon
Coal USA, Inc., 202 F.3d 913, 918 (7th
Cir. 2000); Byers v. Dallas Morning News,
Inc., 209 F.3d 419, 427 (5th Cir. 2000);
Jones v. Washington Metropolitan Area
Transit Authority, 205 F.3d 428, 433
(D.C. Cir. 2000).

  Cases that employ the second formula go
on to say that after the plaintiff has
made his prima facie case, the defendant
can defeat it by producing evidence that
the motive for firing or taking other
adverse employment action against the
plaintiff was not retaliatory, unless the
plaintiff is able to come back and show
that the alleged nonretaliatory motive
was actually pretextual. That is
McDonnell Douglas-speak, all right, but
it is out of place. If the plaintiff has
produced evidence that he was fired
because of his protected expression, he
has gone beyond McDonnell Douglas by
producing actual evidence of unlawful
conduct-- evidence that the firing was in
fact retaliation for his complaining
about discrimination. The fact that the
defendant may be able to produce evidence
that the plaintiff was fired for a lawful
reason just creates an issue of fact:
what was the true cause of the discharge?
Evidence, though not conclusive, that the
cause was retaliation should be enough to
entitle the plaintiff to a jury trial
unless the defendant can produce
uncontradicted evidence that he would
have fired the plaintiff anyway, in which
event the defendant’s retaliatory motive,
even if unchallenged, was not a but-for
cause of the plaintiff’s harm. Price
Waterhouse v. Hopkins, 490 U.S. 228, 244-
45 (1989); Miller v. Illinois Dept. of
Corrections, 107 F.3d 483, 484 (7th Cir.
1997); Visser v. Packer Engineering
Associates, Inc., 924 F.2d 655, 658 (7th
Cir. 1991) (en banc); Brown v. East
Mississippi Electric Power Ass’n, 989
F.2d 858, 862 (5th Cir. 1993).

  McDonnell Douglas is designed to give
the plaintiff a boost when he has no
actual evidence of discrimination (or
retaliation) but just some suspicious
circumstances. If he can prove that his
protected expression caused him to be
fired, he doesn’t need McDonnell Douglas
and it gives him nothing. But this may
depend on the precise meaning of "causal
link." Again we find divergent
formulations in the cases. If it means,
as we have been assuming thus far and as
we have held in a number of cases, Dunn
v. Nordstrom, Inc., 260 F.3d 778, 784
(7th Cir. 2001); Basith v. Cook County,
241 F.3d 919, 933 (7th Cir. 2001); Cullom
v. Brown, 209 F.3d 1035, 1040 (7th Cir.
2000); King v. Preferred Technical Group,
166 F.3d 887, 892 (7th Cir. 1999);
Johnson v. City of Fort Wayne, 91 F.3d
922, 939 (7th Cir. 1996), and Klein v.
Trustees of Indiana University, 766 F.2d
275, 280 (7th Cir. 1985), that the
plaintiff must present evidence that had
it not been for his protected expression
he would not have been fired (or suffered
whatever other adverse action of which he
is complaining), then the situation is as
we have described it and McDonnell
Douglas has no proper role to play in a
federal retaliation suit. But the Fifth
and Eleventh Circuits have held that all
that "causal link" signifies in this
context is that the protected expression
and the adverse action "were not wholly
unrelated," so that something less than
proof that the plaintiff wouldn’t have
suffered an adverse employment action had
he not engaged in the protected
expression--something less, that is, than
proof of but-for causation--will suffice
to complete the prima facie case. Fierros
v. Texas Dept. of Health, 274 F.3d 187,
191 (5th Cir. 2001); Pennington v. City
of Huntsville, 261 F.3d 1262, 1265-66
(11th Cir. 2001); Bass v. Board of County
Commissioners, 256 F.3d 1095, 1119 (11th
Cir. 2001); Long v. Eastfield College, 88
F.3d 300, 305 n. 4 (5th Cir. 1996);
Simmons v. Camden County Board of
Education, 757 F.2d 1187, 1189 (11th Cir.
1985) (per curiam). Some of our cases
repeat this definition. See, e.g.,
Horwitz v. Board of Education, 260 F.3d
602, 613 (7th Cir. 2001); Sauzek v. Exxon
Coal USA, Inc., supra, 202 F.3d at 918;
Vanasco v. National-Louis University, 137
F.3d 962, 969 (7th Cir. 1998); Hunt-
Golliday v. Metropolitan Water
Reclamation District, 104 F.3d 1004, 1014
(7th Cir. 1997). All our cases, however--
and this is true of the Fifth and
Eleventh Circuit cases as well--are ones
in which the plaintiff was proceeding
under McDonnell Douglas, and we have
explained why we think that a plaintiff
so proceeding need not show even an
attenuated causal link.

  The concept of "not wholly unrelated" is
both obscure and, as we just suggested,
superfluous. It should be jettisoned. The
plaintiff in a retaliation case should
have two (and only two) distinct routes
to obtaining/preventing summary judgment.
One, the more straightforward, the one
that is unrelated to McDonnell Douglas,
is to present direct evidence (evidence
that establishes without resort to
inferences from circumstantial evidence)
that he engaged in protected activity
(filing a charge of discrimination) and
as a result suffered the adverse
employment action of which he complains.
If the evidence is uncontradicted, the
plaintiff is entitled to summary
judgment. If it is contradicted, the case
must be tried unless the defendant
presents unrebutted evidence that he
would have taken the adverse employment
action against the plaintiff even if he
had had no retaliatory motive; in that
event the defendant is entitled to
summary judgment because he has shown
that the plaintiff wasn’t harmed by
retaliation.

  The question of how much evidence the
plaintiff must present to establish a
triable issue that the adverse employment
action of which he complains was
retaliatory is not susceptible of a
general answer. But we remind that mere
temporal proximity between the filing of
the charge of discrimination and the
action alleged to have been taken in
retaliation for that filing will rarely
be sufficient in and of itself to create
a triable issue. See Bilow v. Much
Shelist Freed Denenberg Ament &
Rubenstein, P.C., 2001 WL 1381076, at *9
(7th Cir. Nov. 7, 2001); Pugh v. City of
Attica, 259 F.3d 619, 630 (7th Cir.
2001); Contreras v. Suncast Corp., 237
F.3d 756, 765 (7th Cir. 2001); Sauzek v.
Exxon Coal USA, Inc., supra, 202 F.3d at
918; Gleason v. Mesirow Financial, Inc.,
118 F.3d 1134, 1136, 1147 (7th Cir.
1997); but cf. Lalvani v. Cook County,
269 F.3d 785, 790 (7th Cir. 2001);
Hoffman-Dombrowski v. Arlington Int’l
Racecourse, Inc., 254 F.3d 644, 653-54
(7th Cir. 2001). This is the rule in
other circuits as well, see Cardenas v.
Massey, 269 F.3d 251, 264 (3d Cir. 2001);
Little v. BP Exploration & Oil Co., 265
F.3d 357, 363-64 (6th Cir. 2001); Bradley
v. Widnall, 232 F.3d 626, 633 (8th Cir.
2000), though not uniformly. See Lovejoy-
Wilson v. Noco Motor Fuel, Inc., 263 F.3d
208, 224 (2d Cir. 2001); Bass v. Board of
County Commissioners, supra, 256 F.3d at
1119; Dowe v. Total Action Against
Poverty, 145 F.3d 653, 657 (4th Cir.
1998).

  The second route to summary judgment,
the adaptation of McDonnell Douglas to
the retaliation context, requires the
plaintiff to show that after filing the
charge only he, and not any similarly
situated employee who did not file a
charge, was subjected to an adverse
employment action even though he was
performing his job in a satisfactory
manner. If the defendant presents no
evidence in response, the plaintiff is
entitled to summary judgment. If the
defendant presents unrebutted evidence of
a noninvidious reason for the adverse
action, he is entitled to summary
judgment. Otherwise there must be a
trial.

  Because this opinion creates a new rule
for the adjudication of retaliation
cases, it has been circulated to the full
court in advance of publication under 7th
Cir. R. 40(e). No judge in regular active
service voted to hear the case en banc.
