Jottings By An Employer's Lawyer

Wednesday, July 12, 2006

If You've Ever Been Taken to Task By Judge Posner ...

Then you will have to appreciate his opinion in Sylvester v. SOS Children's Villages Illinois, Inc. (7th Cir. 7/12/06) where in re-examing the prima facie test for retaliation he turns his sometimes caustic pen to an earlier opinion from his own court. The opinion in Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640, 644 (7th Cir. 2002), had a special purpose:
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.
In re-examining the test for retaliation he now notes that Stone contains "misleading dictum," which fortunately the Court in a number of other opinions had "sensibly disregard[ed]."

Rather harsh language about a fellow jurist it seems -- until you remember -- the author of that clarification in Stone was none other than -- Judge Posner.

In addition to that irony, if you practice in the 7th Circuit you need to review today's updated clarification as it may indicate at least a subtle shift in the Court's test for reviewing summary judgments in retaliation, and in all likelihood, discrimination cases as well.


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