                             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 ac-
tions 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 set-
ting 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 rul-
ing 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 counter-
parts.
    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 Cauca-
sian 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 require-
ments. After the interview process, applicants are ranked
and given conditional offers pending background investiga-
tions, polygraph exams, and drug tests. CMS also uses a
standard procedure in setting salaries for new hires. Typi-
cally, 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 ex-
ceeding 10%, over her prior salary. State employees auto-
matically 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 em-
ployee 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 pro-
cedure for the transferring forensic scientists. ISP stream-
lined the application process and permitted the CPD scientists
to carry over their sick days and accrued vacation. In addi-
tion, 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 clas-
sified 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 scien-
tists 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 equiva-
lent experience. The result of such a rule is that a new hire
may draw a larger salary than a more experienced em-
ployee 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 em-
ployees at the November 1994 meeting explained that sal-
aries 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 discrim-
inated against them on the basis of race. At trial, they pre-
sented 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 predomi-
nately Caucasian employees. Third, they elicited testimony
from Robert Chapman, a CPD scientist who is not a plain-
tiff 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 Chi-
cago. 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 defen-
dant’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 determina-
tion.” 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 objec-
tions 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 preju-
dice 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 employ-
ment 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 lan-
guage from Foster v. Arthur Andersen, LLP, 168 F.3d 1029,
10                                                  No. 02-2880

1033-34 (7th Cir. 1999), in crafting its supplemental instruc-
tion, 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. § 2000e-
2(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 prac-
tice, 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 precipi-
tating 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 com-
position 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 con-
sultation with CMS to create a standardized hiring pro-
cedure 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 in-
tergovernmental agreement with the City of Chicago with
respect to the hiring, classification, compensation, merit
and fitness, and conditions of employment of former employ-
ees” of the Chicago Police Department lab. Id. at 12e(a).
Subsection (b) listed some of the provisions such an agree-
ment 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 stat-
ute because ISP did not appropriately “consider” a CPD em-
ployee’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 interpreta-
tion, 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 lan-
guage must be enforced as enacted, and a court may not de-
part 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 ac-
tion, 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 appropri-
ate 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 Mad-
den 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 re-
taliation 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 Amend-
ment by wilfully retaliating against Wilson due to his in-
volvement 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 retal-
iation 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 discre-
tion. 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 dis-
cretion. 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 pre-
sents 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 discrimina-
tion 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 protec-
tion 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 dis-
criminating 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 min-
utes), 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 impor-
tant 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 lan-
guage.” 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 some-
thing 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 instruc-
tion, 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 un-
satisfactory 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 moti-
vating 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 in-
serted “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 instruc-
tion 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 defen-
dant 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. Southeast-
ern 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 de-
fense, not the partial one that is all that the 1991 amend-
ment 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
