In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1603

Prem Lalvani,

Plaintiff-Appellant,

v.

Cook County, Illinois, and Robert Coleman,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 2847--Ronald Guzman, Judge.

Argued December 4, 2000--Decided October 15, 2001



  Before Flaum, Chief Judge, and Diane P.
Wood and Williams, Circuit Judges.

  Diane P. Wood, Circuit Judge. Prem
Lalvani worked as a social worker for
Cook County Hospital (CCH) from 1966
until 1996, when he lost his job as part
of an overall reduction in force, or RIF.
Believing he had been unfairly selected
for termination, he fought back with a
lawsuit against Cook County and the
Director of the Social Work Department at
CCH, Robert Coleman, charging unlawful
discrimination, retaliation, and a
variety of other federal and state
claims. The district court granted
summary judgment for the defendants on
all of the federal claims and declined to
retain jurisdiction over the remaining
state law claims. Lalvani has appealed
only the dismissal of his discrimination
claims, his retaliation claim, and his
due process claim. While we agree with
the district court that the defendants
were entitled to summary judgment on the
discrimination and retaliation claims, we
conclude that further proceedings are
necessary on the due process claim, which
we therefore remand.
I

  When Lalvani, a man of Asian-Indian
descent, began working as a social worker
at CCH in 1966, the hospital was under
the authority of Cook County. In 1969,
control of the hospital was transferred
to the Health and Hospitals Governing
Commission (HHGC), pursuant to the County
Hospitals Governing Commission Act, 1969
Ill. Laws 76-32, codified at Ill. Rev.
Stat. ch. 34, para.para. 5011 et seq.
Four years later, in 1973, while CCH was
under HHGC control, CCH promoted Lalvani
to the position of Medical Social Worker
IV. Effective November 30, 1979, the HHGC
was abolished by 1979 Ill. Laws 81-1197,
at which time control over CCH was
returned to Cook County. The latter
statute contained a provision, now
codified at 55 ILCS 5/5-37003,
stipulating that the Cook County Board of
Commissioners was to "have and exercise
all rights, powers and duties heretofore
exercised by the Commission [i.e., HHGC].
. . . All rights, duties, and obligations
of the Commission shall become the
rights, duties and obligations of the
Board of Commissioners." Id. Since 1979,
CCH has remained under the control of
Cook County.

  Between 1979 and his termination in
1996, Lalvani remained in his Social
Worker IV position. In 1989, he applied
for a promotion to a vacant Medical
Social Worker V position, but he was
unsuccessful. He believed the reason was
that the selection committee had decided
in advance to select an African-American
for the position; this belief prompted
him to file a grievance with CCH. CCH
found no merit in the grievance, but
Lalvani pursued it in a race
discrimination complaint filed in 1989
with the Illinois Human Rights Commission
(HRC). To put it mildly, the HRC took its
time in processing the complaint. It was
not until approximately six years later
that the Commission at last scheduled a
hearing on the complaint, which took
place before an administrative law judge
(ALJ) on May 12, 1995. The ALJ ruled in
Lalvani’s favor, finding that CCH’s
failure to promote him had been
discriminatory. In the end, however, he
did not prevail, as the Commission
reversed the ALJ’s ruling in January of
1998.

  According to Lalvani’s evidence, his
relationship with management in the
Social Work Department deteriorated
markedly after he filed his complaint
with the Commission. Prior to that time,
he had been highly praised and had never
been disciplined. Afterwards, between
late 1989 and November 1993, he endured a
long string of setbacks, including
increased work assignments and disparate
treatment with respect to matters such as
discipline, time off, access to
resources, and promotions. During this
period, he filed several successful
grievances against his immediate
supervisors. The final incident during
this period occurred in November 1993,
when Coleman, who was Lalvani’s direct
supervisor, assigned him to a non-
supervisory ward duty position typically
assigned to a Social Worker I. This
required Lalvani to perform functions
normally assigned to employees three rank
levels below his. As far as the record
reveals, all was then quiet until July of
1995, when Coleman filed written
complaints against Lalvani alleging that
he was not satisfactorily performing his
duties. Lalvani challenged the charges
and, rather than pursuing them, Coleman
dropped the matter.

  In 1996, Cook County engaged in a
substantial reduction in force under
which it eventually laid off 500
employees county-wide, some of whom
worked at CCH. CCH department heads such
as Coleman were given strict payroll bud
get limits to observe and were instructed
to reorganize staffing as necessary to
meet their departmental service
requirements. Coleman decided to
eliminate the only two Social Worker IV
positions in his department, along with
an Administrative Assistant IV position.
At the same time, he chose to retain four
vacant Social Worker II positions, and he
created a new Assistant Director position
for the Department. This reorganization
did not reduce the Social Work
Department’s total salary expenditures,
but it obviously reshuffled the content
of the jobs. Asked to explain the
reorganization at his deposition, Coleman
said, "I went by what type of
organizational structure do we need in
place to best be able to meet our
obligation to patient care."

  After Coleman and the other department
heads made their decisions, letters went
out informing the unlucky employees who
had been targeted to lose their jobs. On
December 7, 1996, the 30-year veteran
Lalvani received a letter from Barbara
Penn, the CCH Director of Human
Resources, bluntly telling him that his
position had been eliminated "due to a
decrease in budgeted funds for certain
departments." The letter went on to say
that if his position was Civil Service
certified he might be entitled to certain
bumping and recall rights and that he
should direct any questions to the
Department of Human Resources. Lalvani
followed that advice and sent a letter
requesting clarification of his rights.
Penn responded in a return letter that
"[y]our position, a Medical Social Worker
IV, was not covered by a collective
bargaining agreement with the County or
Civil Service Certified. Therefore, you
do not have . . . bumping rights to the
next lower grade nor recall rights. In
addition there were no other employees
least [sic] senior to you in your job
classification that were not affected in
the reduction in force."

  Lalvani was sure that Coleman had
manipulated the reorganization of the
Department so that he could rid himself
of Lalvani. His suspicions were
reinforced when Marcia Saliga, the other
Social Worker IV who lost her job in the
reorganization, told him that Coleman
approached her shortly after the layoff
letters went out and apologetically
explained that her position had to be
eliminated because otherwise CCH could
not have terminated Lalvani. Under
Illinois law, had a Social Worker IV
position remained, Lalvani would have
been entitled to bump Saliga because he
was the more senior of the Social Worker
IV employees. See 55 ILCS 5/3-14024.

  In the litigation that followed, Lalvani
asserted three theories that are relevant
to this appeal. First, he claimed that
his termination in December of 1996 was
discriminatory, in violation of 42 U.S.C.
sec.sec. 1981 and 1983 and Title VII, 42
U.S.C. sec. 2000e et seq. Second, he
asserted that he was selected for the RIF
as a means of retaliating against him for
his filing the discrimination complaint
in 1989, in violation of Title VII, 42
U.S.C. sec. 2000e-3(a). Finally, he
asserted that the County authorities
violated his due process rights when they
dismissed him, in violation of 42 U.S.C.
sec. 1983.


II
  Because the district court dismissed all
of the claims at issue in this appeal on
summary judgment, our review is de novo,
and we take the facts and reasonable
inferences in the light most favorable to
the non-moving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). We affirm if the record, taken in
that light, shows that there is no
genuine issue of material fact and that
the moving party is entitled to judgment
as a matter of law.


  A.   Ethnicity Discrimination

  Lalvani’s claim here is straightforward:
he contends that Coleman fired him (by
eliminating his Social Worker IV
position) because of his Asian-Indian
ethnicity. He has no direct evidence to
back up this assertion, and thus, like
many others, he must use the burden-
shifting method first articulated in
McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). A prima facie case of
race or ethnicity discrimination under
sec. 1981 is predicated on the same
elements as an ethnicity discrimination
claim under Title VII, and we thus
analyze these two aspects of his case
together. As plaintiff, Lalvani had to
produce evidence that: (1) he was a
member of a protected class; (2) he was
qualified for the job in question or was
meeting his employer’s legitimate
performance expectations; (3) he suffered
an adverse employment action; and (4) the
employer treated similarly situated
persons not in the protected class more
favorably. Taylor v. Canteen Corp., 69
F.3d 773, 779 (7th Cir. 1995).

  The district court found that Lalvani
satisfied the first three elements of the
prima facie case but failed to provide
any evidence under the fourth part that
similarly situated persons not in his
protected class were treated more
favorably. We agree. Lalvani did not
identify a single CCH employee (Social
Worker IV or otherwise) who was in a
similar position and was not terminated
during the RIF. Because he has not even
attempted to make such a showing, we need
not decide who actually was "similarly
situated" for this purpose. The only
obvious candidate in the record is
Saliga, a Caucasian woman, and she was
terminated, too. The district court
properly determined that all of Lalvani’s
arguments regarding Coleman’s stated
desire to get rid of him go to the
question of pretext, an issue we do not
reach until Lalvani has made out his
prima facie case.

  On appeal, Lalvani argues that he
satisfied the fourth element of the prima
facie case by pointing to open positions
in the Social Work Department for which
he was qualified but to which he was not
transferred after the elimination of his
position. But here he is mixing apples
and oranges. The "open position" cases to
which Lalvani cites involve allegations
of a failure to hire, promote, or
properly bump. See, e.g., Mills v. Health
Care Serv. Corp., 171 F.3d 450 (7th Cir.
1999). In such cases, a plaintiff can
often raise an inference of
discrimination by pointing to positions
left unfilled. Lalvani’s complaint only
alleges that "[i]n terminating Plaintiff
Prem Lalvani each Defendant . . .
intentionally discriminated against
Plaintiff Prem Lalvani on the basis of
his race, color, and national origin."
Nowhere in his complaint does Lalvani
allege that Cook County or Coleman
discriminated against him in failing to
hire him for one of the open Social
Worker II positions, and he cannot amend
his complaint on appeal. We acknowledge
that in cases involving economically
motivated RIFs we have held that
plaintiffs can point to empty positions
as evidence of pretext, see, e.g., Smith
v. Cook County, 74 F.3d 829 (7th Cir.
1996), but in these cases the plaintiff
is still required to identify similarly
situated individuals who were treated
more favorably. Id. at 831. Lalvani did
not. The district court therefore
properly granted summary judgment to the
defendants on these claims.


  B.   Title VII Retaliation

  Lalvani also argues that even if his
ethnicity was not a factor in his
termination, retaliation was.
Specifically, he claims that CCH (through
Coleman) fired him in retaliation for his
filing of the complaint with the Illinois
Human Rights Commission in 1989. Again
lacking any direct evidence of
retaliatory intent, Lalvani is left with
the McDonnell Douglas burden-shifting
method. In order to state a prima facie
case of retaliation under Title VII, a
plaintiff must present sufficient
evidence that: (1) he engaged in
statutorily protected activity; (2) he
suffered an adverse employment action;
and (3) there is a causal link between
the protected expression and the adverse
action. Adusumilli v. City of Chicago,
164 F.3d 353, 362 (7th Cir. 1998). If the
plaintiff is able to make out a prima
facie case, the defendant must articulate
a legitimate business reason for the
adverse employment action. If the
defendant does so, the plaintiff must
present evidence that the defendant’s
proffered explanation is pretextual.
  The district court found that Lalvani’s
retaliation claim foundered on the
element of causation, and we agree.
Inretaliation cases, time is often an
important evidentiary ally of the
plaintiff. When an adverse employment
action follows close on the heels of
protected expression, and the plaintiff
can show that the person who decided to
impose the adverse action knew of the
protected conduct, the causation element
of the prima facie case is typically
satisfied. See Sanchez v. Henderson, 188
F.3d 740, 747 n. 4 (7th Cir. 1999);-Hunt-
Golliday v. Metropolitan Water
Reclamation Dist., 104 F.3d 1004, 1014
(7th Cir. 1997). As the district court
pointed out, however, it works the other
way, too. As the time separating the
protected conduct and the adverse
employment action grows, the causal
inference weakens and eventually time
becomes the plaintiff’s enemy. Lalvani’s
is the latter type of case.

  The protected conduct that Lalvani
thinks lay behind his termination in
December of 1996 occurred seven
yearsearlier, in 1989. By itself, this
time lag casts serious doubt on his
retaliation claim. Apparently recognizing
this, Lalvani argues that we should
measure the elapsed time not from when he
filed the complaint, but from the time
Coleman and other CCH managers were
called to testify regarding his
discrimination charge before the ALJ in
May of 1995. Assuming for purposes of
argument that this is the appropriate
moment to start the clock running,
Lalvani is still short of the mark. He
was not terminated until a year and a
half after that hearing, well beyond the
time that would allow a reasonable jury
to conclude that his termination was
causally related to the May 1995 hearing.
See Filipovic v. K & R Express Sys.,
Inc., 176 F.3d 390 (7th Cir. 1999) (four
months negates causal inference);
Davidson v. Midelfort Clinic, 133 F.3d
499 (7th Cir. 1998) (no causal inference
where employee was terminated five months
after filing EEOC complaint, even though
complaint was still pending); Paluck v.
Gooding Rubber Co., 221 F.3d 1003 (7th
Cir. 2000) (no causal inference after a
year).

  We acknowledge that temporal proximity
is only evidence of causation, not a
separate element of the prima facie case,
and thus there will be cases in which a
plaintiff can demonstrate causation
despite a substantial time lag, see
Woodson v. Scott Paper Co., 109 F.3d 913
(3d Cir. 1997). This, however, is not one
of them. Other than pure speculation that
Coleman was biding his time, awaiting an
opportunity to punish Lalvani for forcing
him to go before the ALJ, Lalvani offers
nothing to support a causal connection
between the hearing and his ultimate
termination. The district court thus
properly granted summary judgment on
Lalvani’s retaliation claim.


  C.   Due Process

  Lalvani last argues that he was
terminated without the process to which
he was entitled under the Fourteenth
Amendment to the Constitution. The
district court concluded that Lalvani did
not have a property interest in his job,
and thus that CCH could terminate him at
will. Alternatively, the court found that
even if Lalvani did have a property
interest in his job, he received all the
process he was due because he was
terminated pursuant to a RIF.

  In evaluating Lalvani’s due process
claim, we must first decide whether
Lalvani had a protected property interest
in his position; if so, we then turn to
the question whether he received the
process he was due. See Hamlin v. Vauden
berg, 95 F.3d 580, 584 (7th Cir. 1996).
Not all government employees have a
property interest in their jobs. A
property interest exists only where the
government employee has a "legitimate
claim of entitlement" to his job.
McMillian v. Svetanoff, 878 F.2d 186, 191
(7th Cir. 1989). Such a claim of
entitlement is typically rooted in
statutory or contractual language
indicating that the employee cannot be
terminated but for cause. See Bishop v.
Wood, 426 U.S. 341, 344 (1976).

  Employees of Cook County who have Civil
Service status cannot be fired except for
cause and thus have a property interest
in their jobs. See 55 ILCS 5/3-14023.
Under the Civil Service rules that were
in effect in Cook County in 1996, that
status apparently did not extend to
Social Worker IV employees like Lalvani.
For purposes of argument we assume this
to be the case because Lalvani concedes
it, and it is of no further relevance to
our analysis. Lalvani claims, in fact,
that his status was determined earlier,
while CCH was under the control of HHGC.
As of the time Cook County re-assumed
control over the Hospital in 1979,
Lalvani claims, he had Civil Service
status as an employee of HHGC. Nothing in
the transfer of corporate authority from
HHGC back to the County, he continues,
stripped him of that protection.

  Lalvani placed sufficient evidence into
the record to create a disputed issue of
fact as to whether or not he attained
Civil Service status while CCH was under
HHGC control. The statute governing HHGC
provided that "[a]ll appointments and
promotions to positions [except certain
administrative positions] shall be made
solely on the basis of merit and fitness,
to be ascertained insofar as practical by
competitive examination or other accepted
techniques of personal [sic]
administration based on merit
principles." Ch. 34, para. 5026, sec. 16.
Merit or career employees, in turn, could
not be "discharged, demoted or suspended
for a period of more than 30 days, except
for cause and upon written charges," and
they had to have an opportunity to be
heard. Id. Attached to Lalvani’s motion
for partial summary judgment were several
evaluation forms covering the period from
10/18/72 through 10/18/76, all of which
had the "career" employee box checked off
(as opposed to "temporary"). Another
form, showing his promotion from Medical
Social Worker III to Medical Social
Worker IV indicates that he was under the
"merit" pay plan. This evidence was
enough to raise at least a genuine issue
of fact regarding his employment status
during the HHGC years.

  The next question relates to what rights
went along with the attainment of "merit"
or "career" status under the HHGC and
whether Cook County was obligated to
recognize those rights. As it happens, an
earlier decision of this court has
already considered that issue. In Carston
v. Cook County, 962 F.2d 749 (7th Cir.
1992), a group of long-time security
officers for Oak Forest Hospital brought
suit alleging that they had achieved
Civil Service or "career" status under
the HHGC and that Cook County was
required to recognize that status. We
affirmed summary judgment in favor of the
security officers. Carston first held
that under the HHGC merit system, those
who attained Civil Service or career
status had a right to be discharged only
for cause and thus had "a protect[ed]
property interest in continued
employment, which is protected by the due
process clause." Id. at 752. CCH has not
challenged this part of the Carston
holding, and we see no reason to disturb
it.

  Carston then considered whether Cook
County was required to recognize the
Civil Service status that the security
officers had attained while working for
HHGC. The answer was yes. As we have
already noted, part of the statute that
abolished the HHGC and returned control
over Oak Forest Hospital to Cook County
provides in relevant part that "[a]ll
rights, duties and obligations of the
[HHGC] shall become the rights, duties
and obligations of the [Cook County]
Board of Commissioners." Ill. Rev. Stat.
ch. 34, para. 5020, now codified at 55
ILCS 5/5-37003. In Carston, we concluded
that among the obligations that Cook
County acquired from the HHGC is the
obligation to respect the Civil Service
protections of HHGC career employees.
Cook County advanced a number of theories
against that conclusion at the time, all
of which we rejected, and reject again
today.

  The district court was naturally aware
of Carston, but it concluded that Carston
did not apply to Lalvani because the
deprivation suffered by the Carston
plaintiffs occurred before January 1,
1990, the date upon which the Illinois
statute governing layoffs of Cook County
employees became effective. With respect,
we think the district court misconstrued
the relation between the two laws. The
layoff statute is now codified at 55 ILCS
5/3-14024. When it was passed, it did not
amend Ill. Rev. Stat. ch. 34, para. 5020
(the law transferring the rights and
obligations of HHGC to Cook County). To
the contrary, section 5/3-14024 merely
recodified an identical earlier Illinois
law, Ill. Rev. Stat. ch. 34, para. 1119
(1979), which was on the books when
paragraph 5020 was enacted. The transfer
of authority statute, paragraph 5020, was
thus enacted against the background of an
existing layoff statute for Cook County
employees, and the two continue to
coexist to this day. The re-codification
of the Cook County layoff statute had no
impact on the legal significance of
paragraph 5020 and did nothing to alter
the applicability of the holding in
Carston to Lalvani’s situation.

  Assuming that Lalvani can persuade a
jury that he obtained career employee
status while working under the HHGC,
Carston resolves in Lalvani’s favor the
question of whether he had a protected
property interest in his employment and
whether Cook County could deprive him of
that employment without due process. The
only remaining question is whether
Lalvani received all the process that
would have been due in connection with
his termination. This is a question of
federal law, see Shango v. Jurich, 681
F.2d 1091, 1101 (7th Cir. 1982), resolved
by applying the balancing test
articulated in Mathews v. Eldridge, 424
U.S. 319 (1976). If he did, the County is
entitled to prevail; if not, further
proceedings are needed.

  The flexible approach to due process
adopted in Mathews requires us to weigh
the significance of the private interest
at issue and the risk of an erroneous
deprivation of that interest under the
procedures employed by the state, against
the probable benefits of any additional
procedural protections and the state’s
interest in avoiding the fiscal and
administrative burdens that those
additional protections would impose. Id.
at 335. Lalvani had a substantial
interest in his continued employment.
Brock v. Roadway Express, Inc., 481 U.S.
252, 263 (1987) (employee’s interest in
retaining job "substantial"), and the
process he actually received was minimal
at best. Without prior notice of any
kind, Lalvani received a letter stating
that his position was to be eliminated
within the month. He was invited to
inquire by letter regarding any post-
termination rights he might have. He sent
a letter and received a reply indicating
that he had no post-termination rights
other than those shared by the general
public.

  The district court concluded that the
minimal process that Lalvani received was
more than sufficient given that CCH
terminated him as part of a RIF. But the
mere intonation of the acronym "RIF" does
not have such a sweeping constitutional
effect. It is true that even public
employees with a property interest in
their jobs can be terminated without
full-blown due process hearings if they
are properly terminated during a RIF that
is not implemented through individualized
decisions about whom to fire. UDC Chairs
Chapter, American Assoc. of University
Professors v. Board of Trustees, 56 F.3d
1469, 1474 (D.C. Cir. 1995) (explaining
that lay-offs are less stigmatizing
because "the individual characteristics,
qualifications or reputations of the
[employees] are not at issue"). At the
same time, however, a government employer
cannot avoid its procedural obligations
if it is picking specific individuals for
lay-off or termination, nor can it use a
RIF to conceal a for-cause dismissal and
thereby deprive a career employee of the
procedural protections to which he would
otherwise be entitled. See Misek v. City
of Chicago,783 F.2d 98, 100 (7th Cir.
1986). The district court appears to have
taken as an established fact that Coleman
did not use the RIF as an opportunity to
terminate Lalvani without showing cause,
but that is precisely the question
Lalvani was entitled to explore in an
appropriate hearing.

  While no reasonable jury could conclude
on this record that Coleman’s decision to
terminate Lalvani was motivated by
Lalvani’s ethnicity or his having filed a
discrimination complaint in 1989, there
are other kinds of "cause" that are still
relevant to a career employee. Here,
there is substantial evidence that
Coleman was dissatisfied with Lalvani’s
performance as an employee. The record
reveals numerous run-ins between the two
after Coleman became Lalvani’s supervisor
in 1991. Over time, Coleman progressively
reduced Lalvani’s supervisory duties and
assigned him tasks usually reserved for
lower ranking social workers. Coleman
filed disciplinary charges against
Lalvani for 1) failure to follow policies
and procedures; 2) delayed discharge
planning; 3) poor job performance; and 4)
negligence in the performance of duties.
These charges were never proven, because
Coleman dropped them. Lalvani has
evidence that it was Coleman’s (perhaps
unsupported) dissatisfaction, rather than
the organizational demands created by the
County’s belt-tightening, that led
Coleman to recommend the elimination of
his position. As mentioned earlier,
Marcia Saliga, the other Social Worker IV
who was terminated during the RIF,
testified in detail to a conversation
with Coleman on December 10, 1996.
According to her affidavit testimony,
Coleman apologized for her lay-off and
"he told me that I was being ’laid off
because of Lalvani’, and that ’he (Mr.
Lalvani) was the one that the
administration was after.’ Mr. Coleman
also said that ’they (the administration)
could not get rid of him (Mr. Lalvani)
without getting rid of me, also.’" A jury
may choose to disbelieve this testimony,
but on summary judgment we are not
entitled to do so. Based on this
testimony and the uncontradicted evidence
in the record that Coleman was
dissatisfied with Lalvani’s job
performance, a reasonable jury could
conclude that Coleman used the RIF as
pretext for the termination of a career
employee without providing Lalvani an
opportunity to rebut the allegations of
bad performance.

  At least since Cleveland Board of
Education v. Loudermill, 470 U.S. 532,
546 (1985), it has been established that
in most cases a public employee with a
protectible property interest in his or
her job who faces for-cause termination
"is entitled to oral or written notice of
the charges against him, an explanation
of the employer’s evidence, and an
opportunity to present his side of the
story." That process--particularly at the
pre-termination stage--may be truncated,
but it must retain its meaningfulness.
The letter Lalvani received did not meet
even the minimal standards that apply
when a post-termination procedure is
available, see, e.g., Gilbert v. Homar,
520 U.S. 924, 929 (1997); Schacht v.
Wisconsin Dept. of Corrections, 175 F.3d
497, 503 (7th Cir. 1999), much less when
no such hearing is offered.

III

  For the foregoing reasons, we affirm the
district court’s grant of summary
judgment on Lalvani’s discrimination and
retaliation claims, but we Remand his due
process claim for further proceedings
consistent with this opinion.
