In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1852

Regina McGuire,

Plaintiff-Appellant,

v.

City of Springfield, Illinois,

Defendant-Appellee.

Appeal from the United States District Court
for the Central District of Illinois.
No. 99-3130--Richard Mills, Judge.

Argued January 15, 2002--Decided February 11, 2002


  Before Flaum, Chief Judge, and Coffey and
Easterbrook, Circuit Judges.

  Easterbrook, Circuit Judge. Turned down
in 1986 for a position as an "operator"
in Springfield’s Department of Public
Utilities, Regina McGuire complained to
the Illinois Department of Human Rights
that she had been the victim of sex
discrimination. After considering her
claim for an entire decade (!), the idhr
entered an order in 1996 directing
Springfield to place her in its training
program for the operator’s position, and
to grant her back pay and seniority
retroactive to 1987 if she completed the
program successfully. The City put
McGuire into the program as instructed,
and she washed out in May 1998, at the
end of an extended probationary period as
Operator Trainee III. In this suit under
Title VII of the Civil Rights Act of
1964, McGuire contends that this decision
represents retaliation against the
exercise of her right to complain to the
idhr, in violation of 42 U.S.C. sec.2000e-
3(a). The district court granted summary
judgment in Springfield’s favor. 133 F.
Supp. 2d 1095 (C.D. Ill. 2001).

  As the district judge saw things,
McGuire’s release from the training
program in 1998 was too remote from her
charge of discrimination in 1987 to allow
an inference that the former was a
response to the latter. Often we have ob
served that timing may offer a clue to
causation (or its absence) when an
employee charges retaliation: a short gap
may suggest a causal link, while a long
one undercuts an inference of causation.
See Lalvani v. Cook County, 269 F.3d 785,
790-91 (7th Cir. 2001); Horwitz v. Board
of Education, 260 F.3d 602, 612-17 (7th
Cir. 2001). Here the delay was
exceedingly long. But the reason a long
wait often implies no causation--that
supervisors out to punish someone likely
do so at an early opportunity after the
event, while delay makes an intervening
cause more likely--does not apply.
Springfield removed McGuire from the
training program at an early opportunity.
Not the first; it could have dismissed
her at stage I or II rather than allowing
her to progress to Trainee III; but the
dismissal still came before the end of
the program. Passage of time was not
necessarily a sign of forbearance; it
does not signal that the employer
remained satisfied with the employee’s
work despite the charge of
discrimination. Instead the delay
reflects molasses in the administrative
process. Because the idhr took a decade to
issue its order, the City had no earlier
opportunity to remove McGuire from the
training program.

  A causal link between the charge of
discrimination and the employer’s action
need not demonstrate unlawful
retaliation, however. Suppose that the
idhr had ordered Springfield to pay
McGuire $100,000 in back pay in lieu of
placing her in the training program, and
that the City had done so. There would be
a causal chain: charge leading to
decision leading to payment. Yet the
payment could not be labeled
"retaliation" for the charge, kicking off
another round of complaint. "Consequence"
yes; "retaliation" no. An employer’s
action can be called "retaliation" only
if it makes the employee worse off on
account of the protected activity.
Forking out $100,000 in damages does not
make an employee worse off--even if the
employee really wanted a larger award. To
generalize, a series of events that an
employee would pay to avoid might
sensibly be called "retaliation," while a
series of events that an employee would
pay to enjoy cannot be deemed
retaliatory. Cf. Henn v. National
Geographic Society, 819 F.2d 824 (7th
Cir. 1987). McGuire would have paid for
the opportunity to receive training (and
the big back-pay award plus super-
seniority at the end if she succeeded);
she received wages during training and
does not contend that she took a pay cut
or gave up other valuable opportunities
to participate. That she did not obtain
all of the benefits she anticipated does
not demonstrate retaliation. She remains
better off than she was before she filed
a charge of discrimination.

  Another monetary example makes the
point. Suppose once again that the idhr
had required Springfield to pay McGuire
$100,000, but this time the City failed
to do so, writing a check for $25,000 but
refusing on account of a budget shortfall
(or even dissatisfaction with the idhr’s
decision) to pay the remainder. Could
this be deemed "retaliation" for the
original charge of discrimination and
support a judgment under sec.2000e-3(a)?
We don’t see how. McGuire would be better
off than before (to the tune of $25,000);
and if the City failed to carry out the
idhr’s instructions, that would be a
violation of the idhr’s order, not of
federal law. Similarly, if the National
Labor Relations Board orders an employer
that has resisted unionization at every
turn to bargain collectively with its
workers, and the employer engages in
surface bargaining that collapses without
producing a collective bargaining
agreement, this obstinacy could not be
thought "retaliation" against the union
for filing an unfair-labor-practice
charge.

  Failure to pay a judgment or comply with
an injunction entered by a court or
agency cannot usefully be called
"retaliation for filing the complaint";
nor is slow payment or even nonpayment a
separate violation of federal law. See
Evans v. Chicago, 10 F.3d 474 (7th Cir.
1993) (en banc). It is just a reason to
enforce the judgment in supplemental
proceedings. So too here. McGuire should
have complained to the idhr if she
believed that the City had undermined the
idhr’s order by dismissing her from the
training program without adequate cause.
At oral argument McGuire’s lawyer said
that he had complained to the idhr
andfollowed up with a suit in state
court, which has stayed proceedings
pending the outcome of the federal case.
What counsel did not explain is why he
split McGuire’s theories in this fashion,
exposing her to a defense of claim
preclusion (res judicata) once the first
case reaches judgment. See Rogers v.
Desiderio, 58 F.3d 299 (7th Cir. 1995);
Durgins v. East St. Louis, 272 F.3d 841
(7th Cir. 2001). Her state-law theory
could have been presented in federal
court under the supplemental
jurisdiction. But it was not, and there
is no substantial federal claim. McGuire
is a beneficiary of the idhr’s order, and
that the benefit could (or even should)
have been greater does not amount to
retaliation for initiating the
proceedings.

Affirmed
