Saturday, April 6, 2013

Breast Cancer Treatment and Fertility


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American Idol: Paul Jolley Not Surprised By Elimination

First Published: March 22, 2013 2:13 PM EDT Credit: FOX

LOS ANGELES, Calif. -- ‘American Idol’ Season 12 contestant Paul JolleyCaption ‘American Idol’ Season 12 contestant Paul JolleyPaul Jolley was eliminated from “American Idol” last night and the singer says he wasn’t shocked to learn he’d be going home.

“I was not surprised to hear my name called tonight,” he told Access Hollywood after the show on Thursday. “I’m telling everyone — I had a moment this morning when I woke up and I realized like, this is what is going to happen.

“So I was already prepared for everything and I’ve realized that it’s only a stepping stone and this is only the beginning and there’s a lot more things that I want to do with my career then just ‘American Idol,’” he added.

PHOTOS: ‘American Idol’ Season 12: Top 10

The Tennessee native performed a slowed version of the Beatles’ classic “Eleanor Rigby” on Thursday’s show and said — though the judges said he didn’t seem connected to the song — he was keenly aware of the heart-breaking, lonely theme of the song and felt he gave it his all.

“I was very pleased with my performance. I felt the emotion, everything that I was singing, every word and every lyric,” he told Access. “I connected with [it] and the reason I rearranged the song the way it was rearranged, with the deep drum, [is because] I wanted that to be the heartbeat.”

PHOTOS: ‘American Idol’: Top 10 Most Shocking Eliminations Over The Years

Adding, “I wanted people to feel the emotion — someone died in this song. During the beginning of the song, everyone feels alone, no one’s ever appreciated and no one should ever feel that way and everyone should know, big or small… that’s why I sang it the way I sang it. I wanted the emotion to come across that way and I feel like I did and I’m very proud of myself.”

He later performed Heart’s “Alone” for the “judges’ save,” but the panel opted not to keep the singer in the competition.

WATCH: Paul Jolley Reacts To Getting The ‘Idol’ Boot

Despite the rejection, Paul said he was appreciative of advice from the judges.

“[Their wisdom] means a lot to me and I understand that everything they’ve told me, they’re not just telling me that just because it’s good for their health. They’re giving me advice that I can grow with and become the better artist – and not only just an artist,” he told Access, adding that he has big plans for his future. “I want to be in movies, I want to be a clothing designer, I want to do everything. You name it, I’m going to do it and put my stamp on it.”

“American Idol” continues next week on Wednesday, on FOX.

-- Erin O’Sullivan

Copyright 2013 by NBC Universal, Inc. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


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How to Protect Yourself From the Cost of Cancer?


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Introducing Product Finder for WooCommerce

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Breast Cancer Partner - Take Care of Yourself


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Let’s talk about the GPL…

03/15/2013

I wanted to write open letter to all of you around MOJO’s stance regarding the GPL. It’s easily become the most debated topic around WordPress themes. If you have spent any time within the “Premium WordPress Theme” space you  know where WordPress stands around themes and the GPL.

Today, we’re now in year 3 of the MOJO marketplaces being live. As we look towards the future of MOJO we’re excited about where we’re headed and we would like to keep our growth trending upward for years to come. As of right now, our current licensing for our WordPress themes and plugins do not match WordPress’ preferred terms.

As a result, we can’t sponsor or speak at WordCamps — and the same now goes for our sellers.  With that being said, it’s time to make some tough decisions for the greater good of MOJO, our sellers and our community.

Since last year, we have been fortunate enough to have discussions with Matt (Thanks for the advice Matt!) about strengthening MOJO’s involvement around WordPress. In short, by switching our theme licensing to be “Full GPL”, we would see huge support from Matt, WordPress and the community. On top of that, getting back the ability to speak and sponsor at WordCamps and not to mention all of the other benefits our sellers will receive from this license change.

We are currently working towards having our licensing change to be fully compliant in regards to WordPress products. With the change we would have all WordPress themes and plugins sold on any MOJO Marketplaces will be licensed under the GPL.

A plus side to this change is we will be introducing new support licenses where we can let our sellers offer three different licensing options. This is an effort to ensure our sellers are receiving money for every person that buys their items and requests support. This will allow you to scale your business within the marketplace more efficiently.

We understand this may come as a shock to you so myself and Brady have our doors (emails) wide open for any questions or concerns. Also, we welcome any feedback on this matter in the comments below. As always, thanks for being a part of MOJO and shaping what this marketplace is today!

Thanks,

J.R. Farr & Brady Nord
Founders of MOJO


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Cancer Overview: Types, Causes, Diagnosis And Treatment


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Hello WooCommerce 2.0!

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Avoiding Cancer - More Than Just Awareness


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Congratulations to our second Black Belt seller!

We are happy to congratulate BrankoCee for becoming our second seller to earn a Black Belt! Hiyaa! BrankoCee brings in the kind of cutting edge items that keeps MOJO a premium marketplace.

The support he offers on his own themes as well as the forums is unparalleled and thats just part of what makes BrankoCee a great seller. His items and generous promoting truly bring people back to the marketplace. He is a ray of sunshine for the MOJO Community!

We couldn’t be more appreciative of all of your hard work. Thank you for selling with the MOJO Marketplace!


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Living With Kidney Cancer


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COLLINS v. AMERICAN RED CROSS

Toy COLLINS, Plaintiff–Appellant, v. AMERICAN RED CROSS, Defendant–Appellee.

No. 11–3345.

Argued Nov. 28, 2012. -- March 08, 2013

Before KANNE, WOOD, and SYKES, Circuit Judges.

Stephen L. Richards, Attorney, Chicago, IL, for Plaintiff–Appellant.Constantinos G. Panagopoulos, Attorney, Ballard Spahr, Washington, DC, for Defendant–Appellee.

Toy Collins worked for the American Red Cross. The Red Cross later fired her after an investigation concluded that Collins committed multiple acts of employee misconduct. Collins sued under Title VII, claiming that she was really fired because of illegal retaliation and discrimination. The district court found that Collins did not present enough evidence to support her claims and granted summary judgment for the Red Cross. We agree with the district court and affirm.

I. Background

Toy Collins first started working with the American Red Cross in 1998 as a paid volunteer with AmeriCorps, a federal community service organization. After her AmeriCorps stint ended in 2000, the Red Cross hired Collins as a full-time employee in its Rockford, Illinois office.

Collins is African–American. In the summer of 2006, Collins called the Red Cross's 24–hour confidential hotline to complain about discrimination: she alleged that her co-workers put tacks on her chair, damaged her property, demanded private information, stole her files, required her to pay business costs from her own pocket, and otherwise harassed and sabotaged her. On August 31, 2006, she filed a racial discrimination charge with the Equal Employment Opportunity Commission (“EEOC”). The EEOC gave her a “right-to-sue” letter on February 26, 2007, but Collins did not sue at that time.

In June 2007, several of Collins's co-workers complained that Collins (1) told others that the Red Cross was out to get minorities; (2) said she could not work with homosexuals; (3) instructed an employee to falsify records; (4) coerced a subordinate into teaching a class for free; and (5) gave out blank certifications for Red Cross courses. The Red Cross assigned Janet Stice, a human resources officer from a different office, to investigate the complaints. Stice interviewed eight witnesses between June 26, 2007, and June 28, 2007. Stice also interviewed Collins, who denied the allegations against her. Ultimately, Stice found all of the allegations against Collins were “[s]ubstantiated.” (R. 77–20 at 8.) Stice compiled her findings in a written report and recommended that Collins be terminated. (Id. at 2–8.) Based on the report, the Red Cross terminated Collins on July 16, 2007. Collins sued under Title VII, alleging that the Red Cross retaliated against her for filing the 2006 EEOC complaint and discriminated against her because of her race. The district court granted summary judgment in favor of the Red Cross, and Collins now appeals.

II. Analysis

Summary judgment is proper where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). We review the district court's entry of summary judgment de novo and view the evidence in the light most favorable to the nonmoving party. Arizanovska v. Wal–Mart Stores, Inc., 682 F.3d 698, 702 (7th Cir.2012). That said, we will not draw inferences “that are supported by only speculation or conjecture.” Harper v. C.R. England, Inc., 687 F.3d 297, 306 (7th Cir.2012). A genuine issue of material fact exists only where there is enough evidence that a reasonable jury could return a verdict in favor of the nonmoving party. Id. Here, Collins raises two Title VII claims: one for retaliation, see 42 U.S.C. § 2000e–3(a), and another for discrimination, see 42 U.S.C. § 2000e–2(a). The district court entered summary judgment in favor of the Red Cross on both claims, and we will address each in turn.

A. Retaliation

Title VII forbids retaliating against an employee “because he has opposed any practice made · unlawful · by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e–3(a). Here, Collins attempts to prove her retaliation claim under the “direct method” of proof. To do so, she must show that (1) she engaged in protected activity under Title VII; (2) she suffered an adverse employment action; and, (3) there is a causal link between her protected activity and the adverse action. See Coleman v. Donahoe, 667 F.3d 835, 859 (7th Cir.2012). The Red Cross rightly concedes that filing an EEOC complaint was a protected activity and that Collins's termination was an adverse employment action. See Arizanovska, 682 F.3d at 703–04. Thus, the only question is whether there was a causal link between the two.

To answer this question, Collins directs us to Janet Stice's report recommending that the Red Cross terminate Collins. The “Disposition” section of the report included a list of allegations that Stice found to be “[s]ubstantiated.” (See R. 77–20 at 8.) One of those conclusions was that Collins “has told others that [the Red Cross] is out to get minorities.” (Id.) According to Collins though, none of Stice's interviews actually substantiated this claim. Thus, Collins concludes, the report must have been referring to Collins's EEOC complaint, and a reasonable jury could find in her favor.

We disagree. Stice's report begins with a list of allegations, one of which was that Collins “told others that [the Red Cross] is out to get minorities.” (Id. at 2.) From there, the report contains several pages of brief summaries of interviews with Collins's co-workers. Following that are several pages of what appear to be rough transcriptions of Stice's interview with Collins. Finally, the last page of the report concludes that the initial allegations are “[s]ubstantiated” and recommends that Collins be terminated.

Read as a whole, we think it clear that Stice's report was not referring to Collins's EEOC complaint when it concluded that Collins “told others that [the Red Cross] is out to get minorities.” (Id. at 8.) The report does not ever mention Collins's nearly year-old EEOC complaint. What it does mention, however, is a series of complaints and allegations about Collins stirring up tensions between her co-workers. According to one interview summary in the report, Collins called one co-worker “a racist” and another co-worker “a lesbian.” (Id. at 3.) A third co-worker said that Collins “is very paranoid about other people” and “thinks that people have conspiracies out to get her.” (Id. at 4.) The transcript of the interview with Collins also provides guidance; it indicates that Stice asked Collins “Did you tell Adrianna, we have to stick together because they are all racist?”; and “[D]id you say that Kathy was a racist?” (Id. at 5–6.) Given this context, we think it clear that the report was concerned with Collins sowing racial tension in the office, not with her EEOC complaint.

Collins responds that the report did not do a particularly good job of supporting this conclusion. And Collins is not wrong. For instance, the report indicates that Stice asked if Collins told “Adrianna” that “we have to stick together because they are all racist?” (Id. at 5.) Stice's summary of her interview with “Adriana,” however, does not specifically mention this allegation. (Id. at 3.) Doubtless, then, Stice could have documented her findings more clearly. Nevertheless, at least something in the report suggests that it was concerned with Collins sowing racial tension in the office. Indeed, several parts of the report do. But nothing in the report suggests that it was concerned with Collins's EEOC complaint. And we see no reason why a reasonable jury would reject a proposition supported by some, albeit imperfect, evidence in favor of a proposition supported by no evidence at all.

Thus, we do not think that a reasonable jury could find that the report's conclusions referred to Collins's EEOC complaint. Of course, that does not mean that the report's conclusions were correct. Collins denies making the statements that the report attributes to her, and we must assume, at this stage, that Collins is telling the truth. Stice's report was sloppy, and perhaps it was also mistaken or even unfair. But Title VII does not forbid sloppy, mistaken, or unfair terminations; it forbids discriminatory or retaliatory terminations. See Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1106 (7th Cir.2012). Collins has provided evidence showing, at most, that the report's conclusions were wrong. But she has not provided anything—apart from mere speculation—that the report's conclusions were wrong because of Collins's EEOC complaint. As a result, the Red Cross was entitled to summary judgment.1

B. Discrimination

Collins also claims that the Red Cross racially discriminated against her. Title VII makes it illegal for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” on the basis of race. 42 U.S.C. § 2000e–2(a)(l). Generally speaking, there are two ways of proving such a claim: the “direct” method of proof and the “indirect” method of proof. See Naficy v. Ill. Dep't of Human Servs., 697 F.3d 504, 509 (7th Cir.2012). But cf. Coleman, 667 F.3d at 863 (Wood, J., concurring) (arguing that the direct/indirect distinction is unnecessarily complicated and that “the time has come to collapse all these tests into one”). Under the direct method, a plaintiff must provide either direct or circumstantial evidence that the employer had a discriminatory motivation. Naficy, 697 F.3d at 509. And under the indirect method, a plaintiff must satisfy the well-worn requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Naficy, 697 F.3d at 509.

Collins employs both methods here, and we will start by addressing the indirect method. Under the indirect method, a plaintiff must first establish a prima facie case by providing evidence “that (1) she is a member of the protected class; (2) she met her employer's legitimate job expectations; (3) she suffered an adverse employment action; and (4) similarly situated employees outside of the protected class were treated more favorably.” Id. at 511. If she does so, then the burden shifts to the employer “to introduce a legitimate, nondiscriminatory reason for the employment action.” Id. If the employer meets that burden of production, then the burden shifts back to the plaintiff to provide evidence that the employer's reason was pretextual. Id. at 511–12.

“Normally a court should first determine if a plaintiff has established a prima facie case before subjecting the employer to the pretext inquiry.” Hague v. Thompson Distrib. Co., 436 F.3d 816, 823 (7th Cir.2006). But where, as here, “an employer has cited performance issues as the justification for its adverse action, the performance element of the prima facie case cannot be separated from” the pretext inquiry. Duncan v. Fleetwood Motor Homes of Ind., Inc., 518 F.3d 486, 491 (7th Cir.2008) (per curiam). Thus, we may appropriately begin with pretext. See Senske v. Sybase, Inc., 588 F.3d 501, 507 (7th Cir.2009).

“Pretext means a lie, specifically a phony reason for some action.” Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir.2002) (internal quotation marks omitted). Thus, the question before us “is not whether the employer's stated reason was inaccurate or unfair, but whether the employer honestly believed the reasons it has offered to explain the discharge.” Coleman, 667 F.3d at 852. “It is not the court's concern that an employer may be wrong about its employee's performance, or may be too hard on its employee. Rather, the only question is whether the employer's proffered reason was pretextual, meaning that it was a lie.” Id.

Here, the Red Cross claims that Collins's misconduct, as described in Stice's report, was a legitimate, nondiscriminatory reason for terminating her. Specifically, Stice concluded that Collins had (1) told others that the Red Cross was out to get minorities; (2) said she could not work with homosexuals; (3) instructed an employee to falsify records; (4) coerced a subordinate into teaching a class for free; and (5) gave out blank certifications for Red Cross courses. (R. 77–20 at 8.) Based on these findings, Stice recommended that the Red Cross terminate Collins. (Id.)

Collins argues that Stice's findings were pretextual. In support, she provides only one piece of evidence: the fact that she “denied all of the allegations generated during” the Red Cross's investigation. (Appellant's Br. at 14.) But, as discussed, a plaintiff must show that her employer is lying, not merely that her employer is wrong. See Coleman, 667 F.3d at 852.

As a result, arguing “about the accuracy of the employer's assessment” is a “distraction” in the pretext context; the fact that a statement is inaccurate does not mean that it is a deliberate lie. Jones v. Union Vac. R.R. Co., 302 F.3d 735, 744 (7th Cir.2002). Accordingly, merely denying the employer's allegations, as Collins does here, is not enough to survive summary judgment under the indirect method.

That leaves the direct method. Under this method, Collins must provide either direct evidence or circumstantial evidence that the Red Cross terminated her because of racial animus. See Brown, 700 F.3d at 1105. Direct evidence of discrimination would require something akin to an admission from the Red Cross that it terminated Collins because of her race. See Raymond v. A merit ech Corp., 442 F.3d 600, 610 (7th Cir.2006). Circumstantial evidence, on the other hand, would require Collins to “construct a convincing mosaic” that “allows a jury to infer intentional discrimination by the decisionmaker.” Brown, 700 F.3d at 1105 (internal quotation marks omitted). Collins identifies only one piece of such evidence here: the “apparently false claim that she had told unnamed ‘others' that [the Red Cross] was ‘out to get’ minorities.” (Appellant's Br. at 14.) “This baseless allegation,” she continues, “strongly suggests racial animus as a motive for the termination.” (Id.)

We do not see how. True, the report used the word “minorities,” but never in reference to Collins's status as a minority. And even assuming, as we must at this stage, that the report's allegation was “baseless,” it does not follow that it was racially motivated. Evidence that an employer came to the wrong conclusion might suggest discrimination if the conclusion were incredible on its face or if it were accompanied by other circumstantial evidence. See Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir.2007) (plaintiff “must identify such weaknesses, implausibilities, inconsistencies, or contradictions · that a reasonable person could find them unworthy of credence and hence infer” that the employer was lying). But none of the evidence in this case fits that bill; Stice's conclusions are not facially incredible, and nothing in the record suggests—directly or indirectly—that Stice or the decisionmakers at the Red Cross held any racial animus. And so we are left, at most, with evidence that the Red Cross was wrong. That is not enough to survive summary judgment on a discrimination claim. See Brown, 700 F.3d at 1106 (“Perhaps their supervisors' criticisms were unfair—clearly the plaintiffs feel that they were—but there is no evidence that they were unfair because they were motivated by race, as Title VII forbids.”); Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 603 (7th Cir.2011) ( “although [plaintiff] disagreed with his negative evaluations, that does not mean that the evaluations were the result of unlawful discrimination”); cf. Malacara v. City of Madison, 224 F.3d 727, 731 (7th Cir.2000) (“An employer may hire or refuse to hire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for discriminatory reason.”) (internal quotation marks omitted).

III. Conclusion

We Affirm the district court's entry of summary judgment in favor of the American Red Cross.

FOOTNOTES

1.  The reader may wonder about Collins's alleged comments that Stice's report found to be “[s]ubstantiated.” (R. 77–20 at 8.) For example, according to the report, Collins “told others that [the Red Cross] is out to get minorities” and told one of her coworkers that another co-worker was a racist. (Id. at 3, 8.) Did the Red Cross retaliate against Collins for making these statements? And, if so, would that give rise to a Title VII claim? Interesting questions all, but we need not address them. Collins denies making the statements that Stice's report attributes to her. (See, e.g., Appellant's Br. at 11, 14.) And, needless to say, Collins cannot win a suit based on factual events that she insists never happened.

KANNE, Circuit Judge.


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WooCommerce 2.0 final testing, Release Candidate 1 is here!

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Brain Cancer - Recognising the Symptoms and Understanding the Consequences


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NORTHINGTON v. INTERNATIONAL

Ehnae NORTHINGTON, Plaintiff–Appellant, v. H & M INTERNATIONAL, Defendant–Appellee.

No. 12–1233.

Argued Oct. 26, 2012. -- March 21, 2013

Before EASTERBROOK, Chief Judge, and CUDAHY and TINDER, Circuit Judges.

A. Ware Adams, I, Chicago, IL, for Plaintiff–Appellant.Houston A. Stokes, Littler Mendelson, Chicago, IL, for Defendant–Appellee.

This is a Title VII case involving two issues on appeal: whether in a grant of summary judgment there was any relevant issue of material fact and whether a discovery sanction was properly applied and adhered to by the district court.

Since 2005, Ehnae Northington worked as a lot checker at one of H & M International Transportation's railroad and trucking terminals, Global II. Northington dated an H & M employee, Terrell Maghett. Maghett was also involved in a seven-year relationship with another H & M employee, Shequita Sims. Sims became suspicious of the existence of a relationship between Northington and Maghett and made verbal and physical threats toward Northington. Northington brought certain concerns that she had about Sims' behavior to the terminal manager, Bart Collins. However, Collins was then dating (and has subsequently married) Sims' mother, Tanga Hoskin–Collins, the assistant terminal manager. Collins met with Sims and Northington to attempt to settle their dispute and warned them to keep their personal disputes outside of the workplace.

The conflict between Northington and Sims culminated in Sims' physically assaulting Northington at a gas station, off H & M property. Northington then filed a criminal complaint against Sims. Sims pleaded guilty to battery and the Cook County Circuit Court issued an Order of Special Conditions of Bond or Release (SCOB), which required Sims not to have any unlawful contact with Northington at work. Northington provided the SCOB to the Union, but did not provide a copy to H & M. Additionally, Northington made internal complaints to H & M officers, including H & M's President and Director of Operations. Northington complained that Sims and Hoskin–Collins harassed her, and she complained about the management style of Collins and Hoskin–Collins. Northington did not complain that the harassment was based on her race or gender.

During a safety inspection of Northington's work vehicle, the inspector suspected that Northington was under the influence of drugs due to certain behavior: slow response time, difficulty following conversation and constricted pupils. The inspector spoke to Collins and they agreed that Northington should be tested for drugs based on their “reasonable suspicion,” which was consistent with H & M's policy. Northington and the inspector went to Concentra, a drug testing facility, and Northington provided a urine sample. A Concentra nurse determined that the sample was unusable because it was “too cold.” Concentra procedures required a second urine sample, within three hours, under the direct observation of a Concentra nurse. Northington was instructed to wait in the waiting room until she could donate another sample, but she left Concentra without providing a second sample, despite warnings that such an exit would be considered a “Refusal to Test” and be reported to H & M.

Collins requested that Mary Hayes, Vice President of Human Resources, terminate Northington's employment based on her refusal to test. Hayes conducted an investigation, reviewed by two other H & M officers, and these three officers concluded that Northington had refused to take a reasonable suspicion drug test, under procedures provided by Concentra, and that situation warranted termination. Effective May 2, 2008, Northington was terminated by H & M due to her refusal to test. The three H & M officers were unaware of Northington's criminal complaint against Sims.

Northington filed suit, claiming that her termination was in retaliation for a series of complaints against Sims and in violation of Title VII. The district court granted H & M's motion for summary judgment, finding that Northington failed to establish her retaliation claim because she did not establish that she had participated in protected activity under Title VII. Northington appeals the district court's decision granting summary judgment.

In the lower court, Northington filed a motion for sanction for failure to produce electronically stored information on the basis that H & M had failed to preserve the contents of relevant email accounts. Collins and Hoskins–Collins were no longer employed by H & M by September 2008 and their accounts were remotely wiped. In January 2010, H & M moved its email system to another vendor. During this transition, Sims' account was deemed inactive and deleted. H & M should have preserved these accounts. The district court found that H & M's conduct was negligent but not willful and (1) ordered H & M's counsel to conduct another search for documents; (2) assessed H & M reasonable costs and fees; (3) deemed specific facts admitted at trial; and (4) precluded H & M from making certain arguments at trial.1 Northington argues on appeal that this sanction precluded the award of summary judgment.

The district court had jurisdiction in this matter pursuant to 28 U.S.C. § 1331 (2006). As an appeal from the district court's final order, this court has jurisdiction under 28 U.S.C. § 1291 (2006). We review a district court's grant of summary judgment de novo. O'Rourke v. Palisades Acquisition XVI, LLC, 635 F.3d 938, 941 (7th Cir.2011). Summary judgment is proper when the record shows that there is no genuine dispute of any material fact. Fed.R.Civ.P. 56(a). The district court did not err by granting summary judgment in favor of H & M. Further, the discovery sanction entered against H & M does not preclude summary judgment.

I.

Northington filed internal complaints and a criminal complaint regarding Sims' treatment of her. Title VII protects those actions only if the complaints arose from harassment based on a protected factor. See 42 U.S.C. § 2000e–3(a) (2006). A plaintiff can establish retaliation using a direct or indirect method of proof. To establish a Title VII violation under the direct method, a plaintiff must show that she (1) engaged in statutorily protected activity; (2) she suffered an adverse employment action taken by the employer; and (3) there was a causal connection between the two. Kodl v. Bd. of Educ. Sch. Dist. 45, 490 F.3d 558, 562 (7th Cir.2007). Under the indirect method, a plaintiff must show that she (1) engaged in statutorily protected activity; (2) met the employer's legitimate expectations; (3) suffered an adverse employment action; and (4) was treated less favorably than similarly situated employees who did not engage in a statutorily protected activity. Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 859 (7th Cir.2008); Kodl, 490 F.3d at 562.

An employee engages in a protected activity by either: (1) filing a charge, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under Title VII or other employment statutes; or (2) opposing an unlawful employment practice. Vague and obscure “complaints” do not constitute protected activity. See Andonissamy v. Hewlett–Packard Co., 547 F.3d 841, 850–51 (7th Cir.2008). The record demonstrates that Sim's behavior toward Northington did not involve Northington's race or gender; rather, it was personal and based on Northington's involvement with Maghett. There is nothing in the record which indicates that Sims, who is of the same race and gender as Northington, was motivated by anything but personal conflict. Because the harassment itself was not a purported violation of Title VII, Northington's complaints do not qualify as alleging a protected activity. The district court properly held that Northington's retaliation claim fails as a matter of law.

Thus, the district court's analysis of H & M's motion for summary judgment correctly concluded that protected activity was not involved. None of Northington's alleged protected activities (filing internal complaints and filing a criminal complaint) qualified as such. These involve simply personal conflicts.

II.

The remaining matter of the discovery sanction is easily dismissed. Northington contends that the discovery sanction requires application of an adverse inference and therefore precludes summary judgment for H & M. She argues that the sanction allows an adverse inference that the negligent destruction of electronically stored information indicates the lost information contained evidence of Title VII violations. However, the sanction only prevents H & M from inferring an absence of discrimination from the lack of evidence. The Magistrate specifically noted that H & M did not destroy the evidence in bad faith, which is a required element for allowing this kind of adverse inference. See Fass v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir.2008). Accordingly, the discovery sanction entered against H & M does not preclude summary judgment.

Northington's Title VII retaliation claim fails because she was not engaged in a protected activity. The district court did not err in granting summary judgment for H & M.

Affirmed.

FOOTNOTES

1.  The Order mandated the follow instruction to a jury or judge in a bench trial: “At trial, the jury be instructed that beginning in July 2008, the defendant had a duty to preserve all electronically stored information, including emails, concerning plaintiff's allegations but did not do so. In addition, the defendant is barred from arguing that the absence of discriminatory statements is evidence that no such statements were made.”

CUDAHY, Circuit Judge.


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MOJO. GPL. It’s Official.

A few weeks ago I broke down our plans to move MOJO toward going full GPL. When writing that post and pushing the publish button, the team was nervous. Personally, I didn’t know what to expect but the response so far has been extremely positive.

Of the 424 WordPress themes listed on the marketplace, 250 have accepted the new terms and those items will remain active on the site. For the remaining items, they will only become deactivated. If you’re a seller of those items you can simply login and accept the terms and you’re item will become re-activated.

I’m pleased that after only a few weeks we have had a majority of our sellers moving forward with us. Also, now that we can say this change is official, I’m excited about having MOJO Themes see some new exposure by placing our banner on the home page of WordPress.org.

Thanks to everyone for all the support and patience around this change! With this move, I’m excited about the future around MOJO and where we’re headed next! ;)


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BRACEY v. GRONDIN


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Grief - A Universal Human Experience


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Stomach Cancer Signs and Symptoms - When to Seek Cancer Treatment?


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Meet the super-est store around

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COLLINS v. AMERICAN RED CROSS

Toy COLLINS, Plaintiff–Appellant, v. AMERICAN RED CROSS, Defendant–Appellee.

No. 11–3345.

Argued Nov. 28, 2012. -- March 08, 2013

Before KANNE, WOOD, and SYKES, Circuit Judges.

Stephen L. Richards, Attorney, Chicago, IL, for Plaintiff–Appellant.Constantinos G. Panagopoulos, Attorney, Ballard Spahr, Washington, DC, for Defendant–Appellee.

Toy Collins worked for the American Red Cross. The Red Cross later fired her after an investigation concluded that Collins committed multiple acts of employee misconduct. Collins sued under Title VII, claiming that she was really fired because of illegal retaliation and discrimination. The district court found that Collins did not present enough evidence to support her claims and granted summary judgment for the Red Cross. We agree with the district court and affirm.

I. Background

Toy Collins first started working with the American Red Cross in 1998 as a paid volunteer with AmeriCorps, a federal community service organization. After her AmeriCorps stint ended in 2000, the Red Cross hired Collins as a full-time employee in its Rockford, Illinois office.

Collins is African–American. In the summer of 2006, Collins called the Red Cross's 24–hour confidential hotline to complain about discrimination: she alleged that her co-workers put tacks on her chair, damaged her property, demanded private information, stole her files, required her to pay business costs from her own pocket, and otherwise harassed and sabotaged her. On August 31, 2006, she filed a racial discrimination charge with the Equal Employment Opportunity Commission (“EEOC”). The EEOC gave her a “right-to-sue” letter on February 26, 2007, but Collins did not sue at that time.

In June 2007, several of Collins's co-workers complained that Collins (1) told others that the Red Cross was out to get minorities; (2) said she could not work with homosexuals; (3) instructed an employee to falsify records; (4) coerced a subordinate into teaching a class for free; and (5) gave out blank certifications for Red Cross courses. The Red Cross assigned Janet Stice, a human resources officer from a different office, to investigate the complaints. Stice interviewed eight witnesses between June 26, 2007, and June 28, 2007. Stice also interviewed Collins, who denied the allegations against her. Ultimately, Stice found all of the allegations against Collins were “[s]ubstantiated.” (R. 77–20 at 8.) Stice compiled her findings in a written report and recommended that Collins be terminated. (Id. at 2–8.) Based on the report, the Red Cross terminated Collins on July 16, 2007. Collins sued under Title VII, alleging that the Red Cross retaliated against her for filing the 2006 EEOC complaint and discriminated against her because of her race. The district court granted summary judgment in favor of the Red Cross, and Collins now appeals.

II. Analysis

Summary judgment is proper where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). We review the district court's entry of summary judgment de novo and view the evidence in the light most favorable to the nonmoving party. Arizanovska v. Wal–Mart Stores, Inc., 682 F.3d 698, 702 (7th Cir.2012). That said, we will not draw inferences “that are supported by only speculation or conjecture.” Harper v. C.R. England, Inc., 687 F.3d 297, 306 (7th Cir.2012). A genuine issue of material fact exists only where there is enough evidence that a reasonable jury could return a verdict in favor of the nonmoving party. Id. Here, Collins raises two Title VII claims: one for retaliation, see 42 U.S.C. § 2000e–3(a), and another for discrimination, see 42 U.S.C. § 2000e–2(a). The district court entered summary judgment in favor of the Red Cross on both claims, and we will address each in turn.

A. Retaliation

Title VII forbids retaliating against an employee “because he has opposed any practice made · unlawful · by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e–3(a). Here, Collins attempts to prove her retaliation claim under the “direct method” of proof. To do so, she must show that (1) she engaged in protected activity under Title VII; (2) she suffered an adverse employment action; and, (3) there is a causal link between her protected activity and the adverse action. See Coleman v. Donahoe, 667 F.3d 835, 859 (7th Cir.2012). The Red Cross rightly concedes that filing an EEOC complaint was a protected activity and that Collins's termination was an adverse employment action. See Arizanovska, 682 F.3d at 703–04. Thus, the only question is whether there was a causal link between the two.

To answer this question, Collins directs us to Janet Stice's report recommending that the Red Cross terminate Collins. The “Disposition” section of the report included a list of allegations that Stice found to be “[s]ubstantiated.” (See R. 77–20 at 8.) One of those conclusions was that Collins “has told others that [the Red Cross] is out to get minorities.” (Id.) According to Collins though, none of Stice's interviews actually substantiated this claim. Thus, Collins concludes, the report must have been referring to Collins's EEOC complaint, and a reasonable jury could find in her favor.

We disagree. Stice's report begins with a list of allegations, one of which was that Collins “told others that [the Red Cross] is out to get minorities.” (Id. at 2.) From there, the report contains several pages of brief summaries of interviews with Collins's co-workers. Following that are several pages of what appear to be rough transcriptions of Stice's interview with Collins. Finally, the last page of the report concludes that the initial allegations are “[s]ubstantiated” and recommends that Collins be terminated.

Read as a whole, we think it clear that Stice's report was not referring to Collins's EEOC complaint when it concluded that Collins “told others that [the Red Cross] is out to get minorities.” (Id. at 8.) The report does not ever mention Collins's nearly year-old EEOC complaint. What it does mention, however, is a series of complaints and allegations about Collins stirring up tensions between her co-workers. According to one interview summary in the report, Collins called one co-worker “a racist” and another co-worker “a lesbian.” (Id. at 3.) A third co-worker said that Collins “is very paranoid about other people” and “thinks that people have conspiracies out to get her.” (Id. at 4.) The transcript of the interview with Collins also provides guidance; it indicates that Stice asked Collins “Did you tell Adrianna, we have to stick together because they are all racist?”; and “[D]id you say that Kathy was a racist?” (Id. at 5–6.) Given this context, we think it clear that the report was concerned with Collins sowing racial tension in the office, not with her EEOC complaint.

Collins responds that the report did not do a particularly good job of supporting this conclusion. And Collins is not wrong. For instance, the report indicates that Stice asked if Collins told “Adrianna” that “we have to stick together because they are all racist?” (Id. at 5.) Stice's summary of her interview with “Adriana,” however, does not specifically mention this allegation. (Id. at 3.) Doubtless, then, Stice could have documented her findings more clearly. Nevertheless, at least something in the report suggests that it was concerned with Collins sowing racial tension in the office. Indeed, several parts of the report do. But nothing in the report suggests that it was concerned with Collins's EEOC complaint. And we see no reason why a reasonable jury would reject a proposition supported by some, albeit imperfect, evidence in favor of a proposition supported by no evidence at all.

Thus, we do not think that a reasonable jury could find that the report's conclusions referred to Collins's EEOC complaint. Of course, that does not mean that the report's conclusions were correct. Collins denies making the statements that the report attributes to her, and we must assume, at this stage, that Collins is telling the truth. Stice's report was sloppy, and perhaps it was also mistaken or even unfair. But Title VII does not forbid sloppy, mistaken, or unfair terminations; it forbids discriminatory or retaliatory terminations. See Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1106 (7th Cir.2012). Collins has provided evidence showing, at most, that the report's conclusions were wrong. But she has not provided anything—apart from mere speculation—that the report's conclusions were wrong because of Collins's EEOC complaint. As a result, the Red Cross was entitled to summary judgment.1

B. Discrimination

Collins also claims that the Red Cross racially discriminated against her. Title VII makes it illegal for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” on the basis of race. 42 U.S.C. § 2000e–2(a)(l). Generally speaking, there are two ways of proving such a claim: the “direct” method of proof and the “indirect” method of proof. See Naficy v. Ill. Dep't of Human Servs., 697 F.3d 504, 509 (7th Cir.2012). But cf. Coleman, 667 F.3d at 863 (Wood, J., concurring) (arguing that the direct/indirect distinction is unnecessarily complicated and that “the time has come to collapse all these tests into one”). Under the direct method, a plaintiff must provide either direct or circumstantial evidence that the employer had a discriminatory motivation. Naficy, 697 F.3d at 509. And under the indirect method, a plaintiff must satisfy the well-worn requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Naficy, 697 F.3d at 509.

Collins employs both methods here, and we will start by addressing the indirect method. Under the indirect method, a plaintiff must first establish a prima facie case by providing evidence “that (1) she is a member of the protected class; (2) she met her employer's legitimate job expectations; (3) she suffered an adverse employment action; and (4) similarly situated employees outside of the protected class were treated more favorably.” Id. at 511. If she does so, then the burden shifts to the employer “to introduce a legitimate, nondiscriminatory reason for the employment action.” Id. If the employer meets that burden of production, then the burden shifts back to the plaintiff to provide evidence that the employer's reason was pretextual. Id. at 511–12.

“Normally a court should first determine if a plaintiff has established a prima facie case before subjecting the employer to the pretext inquiry.” Hague v. Thompson Distrib. Co., 436 F.3d 816, 823 (7th Cir.2006). But where, as here, “an employer has cited performance issues as the justification for its adverse action, the performance element of the prima facie case cannot be separated from” the pretext inquiry. Duncan v. Fleetwood Motor Homes of Ind., Inc., 518 F.3d 486, 491 (7th Cir.2008) (per curiam). Thus, we may appropriately begin with pretext. See Senske v. Sybase, Inc., 588 F.3d 501, 507 (7th Cir.2009).

“Pretext means a lie, specifically a phony reason for some action.” Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir.2002) (internal quotation marks omitted). Thus, the question before us “is not whether the employer's stated reason was inaccurate or unfair, but whether the employer honestly believed the reasons it has offered to explain the discharge.” Coleman, 667 F.3d at 852. “It is not the court's concern that an employer may be wrong about its employee's performance, or may be too hard on its employee. Rather, the only question is whether the employer's proffered reason was pretextual, meaning that it was a lie.” Id.

Here, the Red Cross claims that Collins's misconduct, as described in Stice's report, was a legitimate, nondiscriminatory reason for terminating her. Specifically, Stice concluded that Collins had (1) told others that the Red Cross was out to get minorities; (2) said she could not work with homosexuals; (3) instructed an employee to falsify records; (4) coerced a subordinate into teaching a class for free; and (5) gave out blank certifications for Red Cross courses. (R. 77–20 at 8.) Based on these findings, Stice recommended that the Red Cross terminate Collins. (Id.)

Collins argues that Stice's findings were pretextual. In support, she provides only one piece of evidence: the fact that she “denied all of the allegations generated during” the Red Cross's investigation. (Appellant's Br. at 14.) But, as discussed, a plaintiff must show that her employer is lying, not merely that her employer is wrong. See Coleman, 667 F.3d at 852.

As a result, arguing “about the accuracy of the employer's assessment” is a “distraction” in the pretext context; the fact that a statement is inaccurate does not mean that it is a deliberate lie. Jones v. Union Vac. R.R. Co., 302 F.3d 735, 744 (7th Cir.2002). Accordingly, merely denying the employer's allegations, as Collins does here, is not enough to survive summary judgment under the indirect method.

That leaves the direct method. Under this method, Collins must provide either direct evidence or circumstantial evidence that the Red Cross terminated her because of racial animus. See Brown, 700 F.3d at 1105. Direct evidence of discrimination would require something akin to an admission from the Red Cross that it terminated Collins because of her race. See Raymond v. A merit ech Corp., 442 F.3d 600, 610 (7th Cir.2006). Circumstantial evidence, on the other hand, would require Collins to “construct a convincing mosaic” that “allows a jury to infer intentional discrimination by the decisionmaker.” Brown, 700 F.3d at 1105 (internal quotation marks omitted). Collins identifies only one piece of such evidence here: the “apparently false claim that she had told unnamed ‘others' that [the Red Cross] was ‘out to get’ minorities.” (Appellant's Br. at 14.) “This baseless allegation,” she continues, “strongly suggests racial animus as a motive for the termination.” (Id.)

We do not see how. True, the report used the word “minorities,” but never in reference to Collins's status as a minority. And even assuming, as we must at this stage, that the report's allegation was “baseless,” it does not follow that it was racially motivated. Evidence that an employer came to the wrong conclusion might suggest discrimination if the conclusion were incredible on its face or if it were accompanied by other circumstantial evidence. See Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir.2007) (plaintiff “must identify such weaknesses, implausibilities, inconsistencies, or contradictions · that a reasonable person could find them unworthy of credence and hence infer” that the employer was lying). But none of the evidence in this case fits that bill; Stice's conclusions are not facially incredible, and nothing in the record suggests—directly or indirectly—that Stice or the decisionmakers at the Red Cross held any racial animus. And so we are left, at most, with evidence that the Red Cross was wrong. That is not enough to survive summary judgment on a discrimination claim. See Brown, 700 F.3d at 1106 (“Perhaps their supervisors' criticisms were unfair—clearly the plaintiffs feel that they were—but there is no evidence that they were unfair because they were motivated by race, as Title VII forbids.”); Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 603 (7th Cir.2011) ( “although [plaintiff] disagreed with his negative evaluations, that does not mean that the evaluations were the result of unlawful discrimination”); cf. Malacara v. City of Madison, 224 F.3d 727, 731 (7th Cir.2000) (“An employer may hire or refuse to hire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for discriminatory reason.”) (internal quotation marks omitted).

III. Conclusion

We Affirm the district court's entry of summary judgment in favor of the American Red Cross.

FOOTNOTES

1.  The reader may wonder about Collins's alleged comments that Stice's report found to be “[s]ubstantiated.” (R. 77–20 at 8.) For example, according to the report, Collins “told others that [the Red Cross] is out to get minorities” and told one of her coworkers that another co-worker was a racist. (Id. at 3, 8.) Did the Red Cross retaliate against Collins for making these statements? And, if so, would that give rise to a Title VII claim? Interesting questions all, but we need not address them. Collins denies making the statements that Stice's report attributes to her. (See, e.g., Appellant's Br. at 11, 14.) And, needless to say, Collins cannot win a suit based on factual events that she insists never happened.

KANNE, Circuit Judge.


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SIMMONS v. GILLESPIE


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American Idol Results: Who Went Home?

First Published: March 21, 2013 9:23 PM EDT Credit: FOX

The ‘American Idol’ Season 12 Top 9Caption The ‘American Idol’ Season 12 Top 9 LOS ANGELES, Calif. -- “American Idol” has eliminated another contestant.

(SPOILER! This story contains the results of Thursday’s “Idol.”)

Season 12 singer Paul Jolley gave his best, performing Heart’s “Alone” for the “judges’ save,” but the panel opted not to keep the singer in the competition.

PHOTOS: ‘American Idol’ Season 12: Top 10

“Unfortunately… it’s not unanimous, no,” judge Randy Jackson said, when show host Ryan Seacrest asked him to share the group’s decision.

“Good luck baby,” Randy added.

PHOTOS: ‘American Idol’: Top 10 Most Shocking Eliminations Over The Years

Things weren’t so bad for Paul. Earlier in the broadcast, Ryan revealed that Dresden, Tenn., had honored their star with a day in his honor — “Paul Jolley Day.”

“I got my own day,” Paul said as he shrugged off his elimination. “I think I’m [doing] pretty great.”

WATCH IT NOW: Phillip Philips: It Was ‘Terrifying’ Being On The ‘Idol’ Stage Again

Paul’s exit served as a close call for Devin Velez and Amber Holcomb, who had joined him in the Bottom 3.

“American Idol” continues next week on Wednesday, on FOX.

Copyright 2013 by NBC Universal, Inc. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


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Sales of specialty incandescent bulbs decline despite exemption from efficiency standards

April 2, 2013 Graph of annual light bulb sales, as explained in the article text
Source: U.S. Energy Information Administration, based on Department of Energy (DOE) and the National Electricity Manufacturers Association (NEMA).
Note: EISA is the Energy Independence and Security Act of 2007.

Most specialty light bulb types, like three-way bulbs and appliance bulbs, are exempted from congressionally-legislated energy efficiency standards. But recent shipment data show that sales of these exempt incandescent lamps have declined. This effect points to broader lighting market transformation beyond the target of the original legislation, which was the more common general service bulbs.

The Energy Independence and Security Act of 2007 (EISA) established energy efficiency standards for most general service lamps that produce between 310 and 2,600 lumens of light output, essentially covering incandescent lights using between about 40 and 150 watts of power. Several specialty incandescent bulbs are exempted from the legislation and continue to be available in the marketplace, such as three-way lamps, appliance lamps, shatter-resistance lamps, and rough-service lamps, like those used in garage door openers.

As part of EISA, Congress required the Department of Energy (DOE) to evaluate and publish annual sales estimates of some of the exempt lighting types, starting in 2010. If sales in a given year are double the expected value (based on shipment data from 1990 to 2006), that exempt light type would then be subject to regulatory action.

For most of these exempt types, sales have been lower than expected. Indeed, sales began declining well in advance of the legislation's effective date, which began with brighter bulbs in January 2012 and will be phased in through January 2014.

Although not part of the DOE analysis, the reduced sales of these incandescent specialty bulbs could be attributable to market transformation to more efficient lighting, like compact fluorescent (CFL) and light-emitting diode (LED) bulbs. Several manufacturers offer CFL three-way bulbs to replace incandescent three-way bulbs. LEDs, which do not require filaments or glass enclosures, can be used in applications where shatter-proof or vibration-durable lights are needed.

More information about these exempt lighting types is available on DOE's website.


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GAKUBA v. BRIEN

Peter GAKUBA, Plaintiff–Appellant, v. Charles O'BRIEN, et al., Defendants–Appellees.

No. 12–3345.

-- March 25, 2013

Before POSNER, WOOD, and TINDER, Circuit Judges.

Peter Gakuba, Orland Park, IL, pro se.

Peter Gakuba appeals the district court's dismissal of his civil-rights lawsuit against law enforcement personnel and others who participated in a criminal investigation of him that led to sexual abuse charges, which remain pending. Because the district court should have stayed some of his claims and allowed others to proceed, we vacate and remand.

In 2006 a runaway teenager accused Gakuba of kidnapping and raping him in Rockford, Illinois. Gakuba alleges that investigating police barged into his Rockford hotel room without a warrant and seized his wallet and other unspecified items. The police acted after obtaining Gakuba's video rental records from Hollywood Video to corroborate the accuser's story that he had spent time watching videos in Gakuba's room. Gakuba was charged in Winnebago County Circuit Court with three counts of aggravated sexual abuse; those charges remain pending. See 720 ILCS 5/12–16(d) (2006).

In 2012 Gakuba filed a complaint in the Eastern Division of the Northern District of Illinois under 42 U.S.C. § 1983, alleging that police officers and state prosecutors violated his civil liberties by searching his hotel room, seizing his belongings, detaining him, and abusing the judicial process by attempting to revoke his pretrial bond to dissuade him from filing a civil suit. He also sought damages under the Video Privacy Protection Act (VPPA), 18 U.S .C. § 2710. (He asserts that he did not learn that Hollywood Video disclosed his rental records until a pretrial hearing in 2011.)

The district court dismissed the suit without prejudice, granting Gakuba leave to amend his complaint if the pending indictment in his criminal case concluded in his favor. The court advised Gakuba that certain claims against some of the defendants would be barred on immunity grounds, and that any refiling of the case should be made in Rockford (the Western Division of the Northern District of Illinois), the site of his allegations. (We note that although the district court could have transferred the case to the Western Division, see 28 U.S.C. § 1404(a), venue would be proper in either division, see id. § 1391(b)(2); Graham v. UPS, 519 F.Supp.2d 801, 809 (N.D.Ill.2007); 14D Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3809 (3d ed.2007). Divisional venue was abolished by the Judicial Improvements and Access to Justice Act of 1988, Pub.L. No. 100–702, Title X, § 1001(a), Nov. 19, 1988, 102 Stat. 4664.) The court denied Gakuba's postjudgment motions to reconsider and his request for leave to appeal in forma pauperis.

On appeal Gakuba asserts that his pending state criminal case does not prevent him from asserting his § 1983 claims, which arise out of the defendants' conduct in investigating or prosecuting his case (he also clarifies that he is not raising a claim of malicious abuse of process). At first glance, one might ask whether Gakuba's claims are barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). But Heck does not apply absent a conviction. See Wallace v. Kato, 549 U.S. 384, 393–94, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007); Evans v. Poskon, 603 F.3d 362, 363 (7th Cir.2010).

It is Younger v. Harris, 401 U.S. 37 (1971), with which we must be concerned. Younger holds that federal courts must abstain from taking jurisdiction over federal constitutional claims that may interfere with ongoing state proceedings. See SKS & Assocs., Inc. v. Dart, 619 F.3d 674, 677 (7th Cir.2010). Gakuba's claims of damages resulting from illegal searches, seizures, and detentions meet that description: they involve constitutional issues that may be litigated during the course of his criminal case, see Simpson v. Rowan, 73 F.3d 134, 138 (7th Cir.1995); Gilbertson v. Albright, 381 F.3d 965, 968 (9th Cir.2003) (en banc ); Carroll v. City of Mount Clemens, 139 F.3d 1072, 1075 (6th Cir.1998). Deciding those issues in federal court could undermine the state court proceeding, see Simpson, 73 F.3d at 138. Because monetary relief is not available to him in his defense of criminal charges, however, and because his claims may become time-barred by the time the state prosecution has concluded, the district court should have stayed rather than dismissed Gakuba's civil-rights claims. See Simpson, 73 F.3d at 138–39; see also Green v. Benden, 281 F.3d 661, 667 (7th Cir.2002); D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir.2004); Habich v. City of Dearborn, 331 F.3d 524, 533 n. 4 (6th Cir.2003).

Gakuba also continues to press his contention that Hollywood Video violated the VPPA when it turned over his video rental records to the police. The Act makes “video tape service providers” civilly liable to their customers if they disclose their rental information under certain circumstances. See 18 U.S.C. § 2710(b)-(c); Sterk v. Redbox Automated Retail, LLC, 672 F.3d 535, 538 (7th Cir.2012). According to Gakuba's complaint, Hollywood Video appears to qualify as such a service provider, see 18 U.S.C. § 2710(a)(4); Daniel v. Cantrell, 375 F.3d 377, 383 (6th Cir.2004), and its employees knowingly disclosed his rental information to the police without a warrant, see 18 U.S.C. § 2710(b)(1), (b)(2)(C); Daniel, 375 F.3d at 381. Therefore, the district court should not have dismissed Gakuba's VPPA claims against Hollywood Video.

The judgment of the district court is Vacated and the action is Remanded for further proceedings consistent with this opinion.

WOOD, Circuit Judge.


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UNITED STATES v. ANCHOR MORTGAGE CORPORATION

UNITED STATES of America, Plaintiff–Appellee, v. ANCHOR MORTGAGE CORPORATION and John Munson, Defendants–Appellants.

Nos. 10–3122, 10–3342, 10–3423.

Argued Oct. 31, 2012. -- March 21, 2013

Before EASTERBROOK, Chief Judge, and WILLIAMS and SYKES, Circuit Judges.

Eric S. Pruitt, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.Peter Andjelkovich, Andjelkovich & Associates, Chicago, IL, for Defendants–Appellants.

After a bench trial, a district judge found that Anchor Mortgage Corporation and its CEO John Munson lied when applying for federal guarantees of 11 loans. 2010 U.S. Dist. Lexis 81298 (N.D.Ill. Aug. 11, 2010). The False Claims Act provides substantial penalties for fraud in dealing with the United States and its agencies. 31 U.S.C. § 3729(a)(1). The district court imposed a penalty of $5,500 per loan, plus treble damages of about $2.7 million.

Defendants' lead argument on appeal is that they did not have the necessary state of mind—either actual knowledge that material statements were false, or a suspicion that they were false plus reckless disregard of their accuracy. See 31 U.S.C. § 3729(b)(1)(A). The district court inferred knowledge, and that finding stands unless clearly erroneous. Fed.R.Civ.P. 52(a)(6); Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

Anchor submitted two kinds of false statements: first, bogus certificates that relatives had supplied the down payments that the borrowers purported to have made, when it knew that neither the borrowers nor any of their relatives had made down payments (falsity meant that the borrowers and their families had no equity in the properties, with correspondingly little reason to repay the loans; borrowers who could not afford down payments also were less likely to have the means to repay); second, Anchor represented that it had not paid anyone for referring clients to it, but in fact it paid at least one referrer (Casa Linda Realty).

Appellants ask us to ignore the bogus-certificate frauds on the ground that CEO Munson did not know about their falsity. But the district judge found that Alfredo Busano, head of one of Anchor's branch offices, knew what was going on. Corporations such as Anchor “know” what their employees know, when the employees acquire knowledge within the scope of their employment and are in a position to do something about that knowledge. See, e.g., Prime Eagle Group Ltd. v. Steel Dynamics, Inc., 614 F.3d 375 (7th Cir.2010). Busano acquired this knowledge as part of his duties at Anchor, and he could have rejected any loan application that had false information about the down payment. Instead he certified to the federal agency that the information was true. Busano's knowledge was Anchor's knowledge.

As for the referral fees: Munson says that he thought them proper because federal regulations permit compensation of a joint venture in which a mortgage broker has an interest. Munson testified that he thought that such a “controlled business arrangement” (the regulatory term at the time) had been established. But Munson conceded that the final paperwork was not signed and that the payments were made to Casa Linda Realty, not the separate entity that Anchor and Casa Linda had discussed creating. Since Munson knew that no “controlled business arrangement” was in existence, the district court did not commit a clear error in finding that Munson knew that the statements to the federal agency were false.

This brings us to damages. One question is whether the district judge should have awarded double damages under § 3729(a)(2) rather than treble damages under § 3729(a)(1). The statute requires treble damages unless “the person committing the violation · furnished officials of the United States responsible for investigating false claims violations with all information known to such person about the violation within 30 days after the date on which the defendant first obtained the information” (§ 3729(a)(2)(A)). Munson reported some false claims that Anchor had submitted, and he contends that this calls for double damages.

Yet the statute does not cap damages for every violation just because any violation has been reported. Subparagraph (A) refers to “the violation”; each must be assessed separately. That's an implication of the definite article (“the”) and the inescapable consequence of the temporal reference. Double damages are permissible when the defendant tells the truth “within 30 days after the date on which the defendant first obtained the information”. Coming clean 29 days after submitting one false claim does not mitigate the penalty for other false claims that had been submitted months earlier.

The United States gave Munson and Anchor credit for self-reporting: it did not seek any penalty for the frauds he reported. The 11 claims on which the district court awarded treble damages were among Anchor's false claims that Munson never reported or attempted to correct. The agency discovered the falsity after a large fraction of Anchor's clients defaulted and an investigation turned up problems. Munson did not furnish “all information” about any of these 11 claims, so the district court was required to treble rather than double the damages.

But treble what? The hanging paragraph at the end of § 3729(a)(1) says that the award must be “3 times the amount of damages which the Government sustains because of the act of that person.” The district judge added the amounts the United States had paid to lenders under the guarantees and trebled this total. Then he subtracted any amounts that had been realized, by the date of trial, from selling the properties that secured the loans. For example, the Treasury paid $131,643.05 on its guaranty of a particular loan. Three times that is $394,929.15. The real estate mortgaged as security for that loan sold for $68,200. The judge subtracted the sale price from the trebled guaranty; the result of $326,729.15 represented treble damages. To this the judge added the $5,500 penalty, for a total of $332,229.15. The process was repeated for the other parcels.

Defendants propose a different approach. Like the district judge, they start with $131,643.05, but they immediately subtract the $68,200 that the United States realized from the collateral. The net loss is $63,443.05. Treble that, and the result is $190,329 .15. Add $5,500 for a total of $195,829.15. Repeat for the other parcels. We call defendants' preferred approach the “net trebling” method, and the district court's (which the United States endorses) the “gross trebling” method.

Section 3729(a) calls for trebling “the amount of damages which the Government sustains”. That's an unfortunate expression, because “damages” usually represents the amount a court awards as compensation. That makes § 3729(a) circular. The word for loss usually is “injury” or “damage”—or just “loss.” The United States has not argued that the use of “damages” rather than “damage” or “injury” or “loss” has any significance, however. So we must decide whether to use net loss or gross loss.

The United States maintains that Anchor and Munson have not preserved this question for appellate resolution. We conclude that they have. Their lawyer raised the subject in arguments to the district judge at the close of the evidence (pages 337–38 of the trial transcript). Counsel asked the judge to use net trebling, though he did not cite a case. A legal point is not forfeited by omission of the best authority. See, e.g., Elder v. Holloway, 510 U.S. 510, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994). As we discuss below, defendants needed to track down a footnote in a 1976 opinion to find their best authority. Eventually they did this, and Elder holds that we can consider the decision's import.

The False Claims Act does not specify either a gross or a net trebling approach. Neither does it signal a departure from the norm—and the norm is net trebling. The Clayton Act, which created the first treble-damages action in federal law, 15 U.S.C. § 15, has long been understood to use net trebling. The court finds the monopoly overcharge—the difference between the product's actual price and the price that would have prevailed in competition—and trebles that difference. See, e.g., Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). A gross trebling approach, parallel to the one the district court used in this suit, would be to treble the monopolist's price, then subtract the price that would have prevailed in competition. If there is a reason why the courts should use net trebling in antitrust suits and gross trebling in False Claims Act cases, it can't be found in § 3729—nor does the United States articulate one.

Basing damages on net loss is the norm in civil litigation. If goods delivered under a contract are not as promised, damages are the difference between the contract price and the value of what arrives. If the buyer has no use for them, they must be sold in the market in order to establish that value. If instead the seller fails to deliver, the buyer must cover in the market; damages are the difference between the contract price and the price of cover. If a football team fires its coach before the contract's term ends, damages are the difference between the promised salary and what the coach makes in some other job (or what the coach could have made, had he sought suitable work). Mitigation of damages is almost universal.

With neither statutory language nor any policy favoring gross trebling under § 3729(a), the Department of Justice has relied exclusively on one decision: United States v. Bornstein, 423 U.S. 303, 96 S.Ct. 523, 46 L.Ed.2d 514 (1976). The Court held in Bornstein that third-party payments are subtracted after doubling, rather than before. (At the time, doubling rather than trebling was standard under § 3729.) The United States had contracted with Model Engineering for radio kits, each of which was to contain tubes that met military specifications. Model purchased the tubes from United National Labs, which represented that they were mil-spec parts. But United Labs shipped tubes that it knew did not comply with the specifications. Model incorporated them into the kits. When the United States discovered the fraud, it sued United Labs and two of its officers. Model was not liable under the False Claims Act, but it was liable for simple breach of contract, and it paid the United States an amount per tube that Model thought would prevent loss to the United States. The question in Bornstein was whether the money the United States received from Model would be subtracted before doubling the price that United Labs had charged for the fraudulently labeled tubes. The Court held that Model's payments should not inure to United Labs' benefit and wrapped up: “the Government's actual damages are to be doubled before any subtractions are made for compensatory payments previously received by the Government from any source.” 423 U.S. at 316.

Although the Department of Justice maintains that this language specifies a gross trebling approach, we do not read it so. Instead it sounds like a conclusion that “damages” depend on the acts of the person committing the fraud. Any doubt is resolved by footnote 13, which is attached to the word “source” in the language quoted above: “The Government's actual damages are equal to the difference between the market value of the tubes it received and retained and the market value that the tubes would have had if they had been of the specified quality. C. McCormick, Law of Damages § 42, p. 137 (1935).” Thus if mil-spec tubes were worth $40 apiece, but the tubes United Labs furnished were worth only $25, then the “actual damages” per tube were $15. That's what should have been doubled. Footnote 13 in Bornstein unambiguously uses the contract measure of loss, supporting a net trebling approach.

The brief for the United States contends that note 13 is dictum. Maybe so. The question presented was whether third-party payments should be subtracted before doubling, not whether the market price should be subtracted from the contract price before doubling. But a court of appeals should not ignore pertinent statements by the Supreme Court. Footnote 13 was not an offhand remark. Having rejected the court of appeals' approach in Bornstein, the Court told it how to do the job right on remand. The footnote uses the common law's established approach to determining damages; it is not as if some law clerk were off on a lark and the Justices missed the error.

Appellate decisions since Bornstein generally use a net trebling approach. See, e.g., United States ex rel. Feldman v. Gorp, 697 F.3d 78, 87–88 (2d Cir.2012); United States v. United Technologies Corp., 626 F.3d 313, 321–22 (6th Cir.2010); United States v. Science Applications International Corp., 626 F.3d 1257, 1279 (D.C.Cir.2010); Commercial Contractors, Inc. v. United States, 154 F.3d 1357, 1372 (Fed.Cir.1998). Feldman holds that the United States got no value at all from a fraudulently obtained research grant, so there was nothing to subtract, but that does not detract from the fact that the court adopted a net approach. On the gross trebling side is United States v. Eghbal, 548 F.3d 1281, 1285 (9th Cir.2008), a case much like this one in which the court refused to subtract (before trebling) the value of collateral the United States seized and sold. Eghbal relies on Bornstein but does not mention note 13; we do not find it persuasive.

The district judge must recalculate the award using the net trebling approach. If any of the real estate remains unsold, the parties should address how its value is to be determined. The district court assumed that real estate in a lender's or guarantor's inventory has no value at all, so there is nothing to subtract in either a gross or a net approach. That cannot be right. Courts routinely determine the value of real property that is off the market—valuation for estate—tax purposes is one example, and valuation in condemnation proceedings is another. The United States' loss is the amount paid on the guaranty less the value of the collateral, whether or not the agency has chosen to retain the collateral. The damages should not be manipulated through the agency's choice about when (or if) to sell the property it receives in exchange for its payments.

The judgment is affirmed to the extent it finds Anchor and Munson liable, but it is reversed to the extent it adopts the gross trebling approach. The case is remanded with instructions to recalculate the award under the net trebling approach.

EASTERBROOK, Chief Judge.


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Healthy Hollywood: Get Movin’ Monday – Katharine McPhee’s Bold Rules!

First Published: March 18, 2013 1:38 PM EDT Credit:

NEW YORK, N.Y. -- Women’s Health Kat McPhee CoverCaption Women’s Health Kat McPhee Cover“I’m most daring about things I’m really passionate about,” reveals Katharine McPhee, the star of NBC’s “Smash” in the April issue of Women’s Health magazine.

Katharine shares with the magazine her tips on finding success in the aggressive showbiz world. “There are those people who are bold at industry parties, who go up to big producers and directors and introduce themselves, and I’m not really like that. I’m really kind of shy, and I’m not the best self-promoter.”

Instead, Katharine lets her talent speak for itself, adding, “You get one opportunity to audition. I like fighting for things in the traditional way – by being as prepared as I possibly can.”

The actress/singer‘s career launched after she was runner-up on “American Idol” back in 2006. The 28-year-old says competing on the reality show was the boldest thing she’s ever done. But, she’s somehow managed to conquer her fears and release 2 albums and is working on a third. “I’ve wanted to have a fun record for so long, and it is fun! I’m not a serious person at all, and people who know me [know] I’m so goofy, and I want that to come out in the music,” adds McPhee.

One thing Katharine is serious about is exercise. She’s in amazing shape. Just check out her enviably flat belly on the April cover of Women’s Health. “My tips for sneaking in a workout are ankle weights. I’ve been actually caught on set wearing ankle weights. With paparazzi photos it’s really not that attractive so I try to do it in private. It’s great waiting around my trailer, I’ll do some like, leg things, and get the muscles going, and wastes some good time,” reveals Katharine.

For more on Katharine, check out Women’s Health magazine.

-- Terri MacLeod

Copyright 2013 by NBC Universal, Inc. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


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SIMMONS v. GILLESPIE

Gregory SIMMONS, Plaintiff–Appellant, v. Timothy GILLESPIE, et al., Defendants–Appellees.

No. 12–3381.

Argued Feb. 26, 2013. -- March 19, 2013

Before EASTERBROOK, Chief Judge, and ROVNER and WILLIAMS, Circuit Judges.

Shane M. Voyles, Policemen's Benevolent Labor Committee, Springfield, IL, for Plaintiff–Appellant.Michael P. Murphy, Heplerbroom, LLC, Springfield, IL, for Defendants–Appellees.

The Board of Fire and Police Commissioners for Pekin, Illinois, determined that Gregory Simmons, an officer of the city's police department, had disobeyed an order. It suspended him without pay for 20 days. A state court affirmed the board's decision, but a court of appeals reversed after concluding that the chief of police lacked authority to issue the order in question. Simmons v. Pekin Police and Fire Commission, No. 3–08–0944 (Ill.App.3d Dist. Oct. 13, 2009) (unpublished). Michael Campion, a psychologist, had concluded that Simmons was unfit for duty. Simmons told the chief that he had been evaluated by other psychologists who thought him able to serve. The chief ordered Simmons to ensure that these other psychologists provided Campion with their conclusions, supported by evaluations and data. The appellate court held in a divided decision that, as a matter of Illinois law, the chief could require an officer to provide no more than a psychologist's bottom line; since the chief had asked for facts and reasons, his order was unlawful, the court held.

Simmons then sued under 42 U.S.C. § 1983, contending that the due process clause of the fourteenth amendment requires the city to make up the pay he lost as a result of the board's decision. He did not contend that the Constitution of its own force forbids suspensions or requires back pay. See Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997); FDIC v. Mallen, 486 U.S. 230, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988). Instead he maintained that state law entitles him to back pay. The district court dismissed the complaint, see Fed.R.Civ.P. 12(b)(6), holding that Illinois requires back pay only when the board rules in an officer's favor, see 65 ILCS 5/10–2.1–17, while here the favorable ruling came from a court. See Simmons v. Gillespie, 2012 U.S. Dist. LEXIS 132224 (C.D.Ill. Sept. 17, 2012).

The parties' briefs in this court debate whether the district judge correctly understood § 5/10–2.1–17. But there are at least two antecedent inquiries: first, does the Rooker–Feldman doctrine prevent a federal court from addressing this question?; second, does a state actor's misapplication of state law violate the due process clause of the federal Constitution?

The Rooker–Feldman doctrine takes its name from Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Those decisions hold that only the Supreme Court of the United States may set aside a state court's decision in civil litigation. The doctrine concerns the federal courts' subject-matter jurisdiction, so it must be raised even if the parties do not mention it (as neither side did in this litigation). At oral argument a judge asked Simmons's lawyer whether the goal of this suit is to set aside the decision of the state's appellate court, which did not specify that Simmons is entitled to back pay. Counsel gave an affirmative answer yet insisted that the Rooker–Feldman doctrine is irrelevant. Both propositions cannot be true simultaneously.

Although Simmons wants relief that the state judiciary did not provide (apparently it was never asked), that does not imply that the federal suit seeks to annul the state decision. The principal difference between claim preclusion (res judicata), which does not affect federal jurisdiction, and the Rooker–Feldman doctrine, which does, is that the latter doctrine deals with situations in which the state court's decision is the source of the harm that the federal suit is designed to redress. See GASH Associates v. Rosemont, 995 F.2d 726, 728 (7th Cir.1993), approved by Skinner v. Switzer, –––U.S. ––––, ––––, 131 S.Ct. 1289, 1297, 179 L.Ed.2d 233 (2011), and Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 293, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005).

Simmons does not contend that the state court's decision caused him injury; he complains, rather, that the decision was not favorable enough. He does not want us to set it aside; that would knock out the victory on which he now relies. Defendants could have raised a defense of preclusion but chose not to do so. Simmons split his claim, presenting to state court a demand for one kind of relief and to federal court a demand for a different kind of relief. The law of preclusion forbids that maneuver, but it is an affirmative defense-and defendants seem indifferent to its benefits. Simmons has filed at least three suits. The third, in state court, also sought relief beyond what the 2009 decision provided. In that suit, as in this second one, the defendants forfeited the defense of preclusion. The state judiciary deemed the third suit untimely. Simmons v. Pekin, 2012 Ill.App. Unpub. LEXIS 2060 (3d Dist. Aug. 23, 2012). And by not bringing that decision to our attention, defendants have forfeited any defense of preclusion it might have afforded. Why the defendants are willing to undergo three suits rather than insist on their entitlement to peace following the initial decision is a mystery, but not one we need puzzle out.

Nor need we consider what § 5/10–2.1–17 means. That would have been an issue for the state judiciary, had Simmons presented it to them-which he did not. The Constitution does not require states to ensure that their laws are implemented correctly. Archie v. Racine, 847 F.2d 1211, 1215–18 (7th Cir.1988) (en banc), collects decisions to that effect. For more recent decisions see, e.g., Castle Rock v. Gonzales, 545 U.S. 748, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005); Goros v. Cook County, 489 F.3d 857 (7th Cir.2007); Avila v. Pappas, 591 F.3d 552 (7th Cir.2010).

The due process clause of the fourteenth amendment does require a state to afford an opportunity for a hearing before depriving someone of a property right created by state law. See, e.g., Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). We assume that § 5/10–2.1–17 creates a property interest in back pay. But Simmons does not want a hearing. He wants money. That's what the due process clause does not guarantee; the federal entitlement is to process, not to a favorable outcome.

Illinois offered Simmons ample process. He had a full hearing before being suspended. After the board ruled that he had been insubordinate, he enjoyed judicial review. Cf. United States v. James Daniel Good Real Property, 510 U.S. 43, 53, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993); Parratt v. Taylor, 451 U.S. 527, 538–41, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (the opportunity to litigate in state court is all the process due for a state actor's unauthorized departure from requirements of state law), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Simmons could have asked the state's appellate court to award back pay, but he did not. He could have asked the state's appellate court to remand to the board so that it could make the finding that would have entitled him to back pay even on the defendants' understanding of § 5/10–2.1–17, but he did not do that either. The due process clause does not permit a litigant to disdain his opportunities under state law and then demand that the federal judiciary supply a remedy.

The district judge should not have used a § 1983 suit to resolve a claim that rests entirely on a proposition of state substantive law. But no harm has been done. Simmons is not entitled to a federal remedy, so the judgment is

AFFIRMED.

EASTERBROOK, Chief Judge.


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American Idol: Another Contestant Is Sent Home

First Published: April 4, 2013 9:18 PM EDT Credit: FOX

Burnell Taylor, Candice Glover, Angie Miller, Amber Holcomb, Janelle Arthur, Lazaro Arbos and Kree HarrisonCaption Burnell Taylor, Candice Glover, Angie Miller, Amber Holcomb, Janelle Arthur, Lazaro Arbos and Kree Harrison LOS ANGELES, Calif. -- “American Idol” has waved goodbye to another contestant.

(SPOILER: This story contains the results of Thursdays “Idol.”)

PHOTOS: ‘American Idol’ Judges Over The Years

Burnell Taylor was eliminated after he couldn’t convince the judges to save him with one final performance.

The young man had been in the Bottom 2 with country cutie Janelle Arthur, 23.

WATCH IT NOW: Idol To Access: Devin Velez Performs The Power Of One (Change The World)

Before the elimination news, Mariah told Burnell and Janelle that the person who would end up going home wasn’t leaving on a low note.

“Whoever goes home tonight is coming back for the tour – to me that’s a very big deal,” Mariah said. “And regardless, you both know you can sing, and you have star quality and I want you to know that I love you both dearly and you have given everything to this competition.”

Lazaro Arbos, 21, is the lone male left in the competition.

PHOTOS: Reality Stars In Their Swimsuits

Copyright 2013 by NBC Universal, Inc. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


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BRACEY v. GRONDIN

Larry BRACEY, Plaintiff–Appellant, v. James GRONDIN, et al., Defendants–Appellees.

No. 12–1644.

Argued Feb. 27, 2013. -- March 15, 2013

Before FLAUM, SYKES, and TINDER, Circuit Judges.

Christopher W. Carmichael, Holland & Knight LLP, Chicago, IL, Mark P. Maciolek, Mnm Law Office, Madison, WI, for Plaintiff–Appellant.Robert B. Bresette, Francis X. Sullivan, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants–Appellees.

Larry Bracey sued several corrections officers for the use of excessive force under the Eighth Amendment. Prison security cameras captured the incident, but the footage was ultimately erased when the cameras recorded over it about three days later. Bracey now appeals from the district court's denial of his motion requesting recruitment of counsel and its denial of his motion for spoliation sanctions. We affirm.

I. Background

A. Factual Background

Bracey, an inmate at the Wisconsin Secure Program Facility, suffered an injury in an altercation with corrections officers on July 29, 2005. The confrontation began when Bracey refused to exit his cell as requested by corrections officers executing a random search. Bracey ultimately relented when more officers arrived. They placed him in hand restraints and transferred Bracey to a holding cell.

Bracey's antics resumed upon arrival at the holding cell, however, when he prohibited the officers from removing the restraint on his left hand. (Officers had already removed his right hand from the restraints.) After several minutes of trying to talk Bracey into compliance, the officers pulled Bracey's restrained hand through the holding cell door to immobilize him and safely removed the final restraint. As a result, Bracey injured his forearm. The wound bled, soiling one officer's uniform.

After completion of the search and en route back to his regular cell, Bracey again became intransigent, repeatedly turning his head backward toward the officers in violation of prison policy.1 He then, according to defendants, “aggressively jerked” his head toward Officer Eric Hunt, who responded with reactionary force by pinning Bracey against a nearby doorway. Bracey struggled, and the officers ultimately brought him down to the floor. After reapplying restraints, officers moved Bracey to a more secure part of the prison. This struggle inflicted a bump and quarter-sized bruise on Bracey's head.

Prison security cameras were positioned to record both incidents. These cameras operate on a loop, continuously recording information until their memory becomes full, which usually takes about three days. At that point, the cameras record over the oldest material. Prison policy at the time required download and preservation of security video only in certain situations. These situations did not include an officer's use of reactionary force unless the prisoner assaulted staff.

Two days later on August 1, Bracey filed an inmate complaint claiming Hunt “viciously attacked” him. During the investigation of this complaint, Bracey notified the prison that tapes of the incident probably exist. Bracey suggests he mentioned the recordings in his August 1 complaint, explaining that the “Offender Complaint included allegations · that the incident was recorded on the Prison's video recording system.” In truth, Bracey did not explain the existence of the tapes until August 3, when the Inmate Complaint Examiner (“ICE”) interviewed him and took his written statement. The ICE dismissed the complaint and forwarded Bracey's statement to the warden for processing.

Also on August 1, the Security Director Designee received incident and conduct reports documenting the July 29 incident. After reviewing those reports, the designee found the staff's response adequate and did not download the video for preservation.

B. Procedural History

Bracey filed this lawsuit in 2010 alleging that corrections officers used excessive force in violation of his Eighth Amendment rights. He also alleged spoliation in defendants' failure to download and preserve the video from the prison security cameras. After filing his complaint, Bracey requested the court's assistance in recruiting counsel. 28 U.S.C. § 1915(e)(1). The district court concluded Bracey had made adequate efforts to find his own attorney but found the allegations sufficiently straightforward and Bracey sufficiently competent to handle the case himself. It denied the motion.

Proceeding pro se, Bracey requested information relating to the destruction of the videotapes. After prison officials referred to certain prison policies in responding to Bracey's interrogatories, Bracey requested the policies themselves. The prison refused, and the district court denied Bracey's motion to compel, citing the need to preserve prison security.

As trial approached, Bracey sought sanctions for spoliation of the video recording. Shortly thereafter, Bracey secured his own counsel, who renewed Bracey's request for spoliation sanctions. The district court ultimately denied this motion, refusing the adverse inference instruction because none of the individual defendants were involved in the decision not to preserve the video.

Bracey lost at trial. He now appeals both the denial of his motion to recruit counsel and the denial of his motion for spoliation sanctions.

II. Discussion

A. The District Court Did Not Abuse Its Discretion in Denying Bracey's Request for Counsel

District courts may ask an attorney to represent a litigant unable to pay for his own lawyer. § 1915(e)(1). To qualify, the indigent litigant must make reasonable efforts at finding counsel himself. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir.2007) (en banc). If the litigant comes up short, then the district court must decide whether “given the difficulty of the case,” the plaintiff is “competent to try it himself.” Id. (citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)). Importantly, the district court must consider both halves of this equation—the difficulty of the case and the competence of the litigant. Id. at 660. When reviewing the district court's determination on complexity and competency, we consider the reasonableness of the district court's conclusion in light of the evidence as it stood at the time of the district court's decision. Id. at 659.

We review denials of § 1915(e) motions for an abuse of discretion. Id. at 658. Thus, we affirm unless the district court has applied the wrong legal standard (or made other errors of law), made clearly erroneous factual findings, or rendered a clearly arbitrary decision without any support in the record. Id. Even then, an appellate court can only reverse when the absence of counsel prejudiced the litigant, which requires “a reasonable likelihood that the presence of counsel would have made a difference in the outcome of the litigation.” Id. at 659 (emphasis in original). The government does not challenge the district court's conclusion that Bracey made reasonable attempts to obtain counsel himself, and Bracey does not challenge the district court's findings regarding the quality of his pro se representation. Instead, Bracey emphasizes “the difficulties [he] faced as a prisoner attempting to gather evidence.”

Complexities anticipated (or arising) during discovery can justify a court's decision to recruit counsel. Id. at 655; see also Santiago v. Walls, 599 F.3d 749, 764 (7th Cir.2010). Bracey argues largely that the district court failed to consider the complexities involved in the investigation of the alleged spoliation of the videotapes. According to him, the district court's order makes no explicit mention of the spoliation issue when considering the complexity of the case. Thus, he continues, the district court decided his request for counsel without giving “significant weight” to this “very important factor.” Santiago, 599 F.3d at 763.

True, the district court's order denying the request for counsel did not explicitly comment on the spoliation issue, and the district court knew that issue existed when it ruled on the request.2 But neither did the district court's analysis completely ignore discovery: “At the preliminary pretrial conference, plaintiff will be given the opportunity to ask questions he has about litigating his case and he will be instructed about how to use discovery techniques available to all litigants under the Federal Rules of Civil Procedure so that he can gather the evidence he needs to prove his case.” Given the deferential standard of review, this language suffices to show the district court considered the complexity of spoliation-related discovery in this case, particularly when the district court had previously reserved that spoliation issue for discovery. Moreover, while we have recognized cases involving medical expert testimony or state of mind requirements as legally complex, see Santiago, 599 F.3d at 761, we have found no case in this circuit identifying spoliation as a complex legal issue supporting recruitment of counsel. In fact, other circuits have not found an abuse of discretion in denying counsel in cases also involving spoliation. See Jennings v. Bradley, 419 F. App'x 594 (6th Cir.2011) (non-precedential); Rhodes v. Robinson, 399 F. App'x 160 (9th Cir.2010) (non-precedential); see also Brown v. Hertz, 437 F. App'x 496, 500 (7th Cir.2011) (non-precedential) (rejecting necessity of counsel to make county employees “more responsive to discovery requests”). Thus, we conclude that the district court did not abuse its discretion in its consideration of the complexity of the case.

Bracey does not directly challenge his competence to litigate the case.3 He does, however, suggest that a lawyer would have allowed him access to certain prison policies by permitting “attorneys' eyes only” review. This deficiency, though, relates not to Bracey's competency but merely to his status as a prison inmate. For this reason, Bracey's situation differs from the litigant's posture in Santiago v. Walls. In that case, the litigant's inability to investigate his claim after his transfer to a different prison—and the district court's failure to consider this fact—resulted in the court's abuse of discretion in denying the § 1915 request. Santiago, 599 F.3d at 762–63. Unlike the circumstances in Santiago, unique to that prisoner alone,4 all inmates confront the discovery restrictions facing Bracey: internal prison policies have relevance in nearly every prison lawsuit alleging the excessive use of force.5 Thus, if the need to access otherwise inaccessible documents requires recruitment of counsel, recruitment would result in nearly all such cases. Section 1915 does not impose that burden.

Other considerations support the district court's decision as well. The district court offered Bracey instruction on discovery in federal court. And Bracey could always have renewed his request for counsel when confronted with the difficulties of obtaining prison security documents. Of course, a district court need not spontaneously revisit an earlier ruling on a § 1915 motion, but nothing prevents a pro se litigant from again requesting counsel later in a proceeding. See Santiago, 599 F.3d at 764 (noting court can “question · whether the language of the district court in disposing of the [§ 1915 motion] impermissibly prevented [the pro se litigant] from making later requests [for counsel]”). More importantly, when Bracey did eventually obtain counsel, he could have requested a continuance and asked to reopen discovery. He did not. While the court may have denied that request, if pro se discovery so hampered his case and if attorney-assisted discovery would have yielded significant benefits, one would expect Bracey to at least advance such a position.

In short, the district court knew of Bracey's spoliation allegations when concluding Bracey could handle the case himself. Bracey received pro se support and training resources. After all that, Bracey still could have requested counsel later in the proceeding or asked the court to reopen discovery, yet he chose not to pursue that course of action. On these facts, we find no abuse of discretion in denying Bracey's first and only request for counsel under § 1915(e). Because the district court did not abuse its discretion in evaluating the complexity of the case and Bracey's competence as a pro se litigator, we need not address the issue of prejudice.

B. The District Court Did Not Abuse Its Discretion in Declining to Issue an Adverse Inference Instruction

In this circuit, when a party intentionally destroys evidence in bad faith, the judge may instruct the jury to infer the evidence contained incriminatory content. Faas v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir.2008). When considering the propriety of such an adverse inference instruction, “[t]he crucial element is not that the evidence was destroyed but rather the reason for the destruction.” Park v. City of Chicago, 297 F.3d 606, 615 (7th Cir.2002) (quoting S.C. Johnson & Son, Inc. v. Louisville & Nashville R.R. Co., 695 F.2d 253, 258 (7th Cir.1982)); see also Norman–Nunnery v. Madison Area Tech. Coll., 625 F.3d 422, 428 (7th Cir.2010). A party destroys a document in bad faith when it does so “for the purpose of hiding adverse information.” Faas, 532 F.3d at 644 (quoting Rummery v. Ill. Bell Tel. Co., 250 F.3d 553, 558 (7th Cir.2001)). We review a district court's denial of an adverse inference instruction for abuse of discretion, Park, 297 F.3d at 615, but “ ‘bad faith’ is a question of fact like any other,” Mathis v. John Morden Buick, Inc., 136 F.3d 1153, 1155 (7th Cir.1998). Bracey requested an adverse inference instruction regarding the destroyed videotape, which the district court denied. He now raises two arguments on appeal. Both lack merit.

First, Bracey suggests that the district court abused its discretion by denying the motion prematurely. According to Bracey, he lacked access to the evidence necessary to show spoliation, preventing the district court from making the fact-intensive inquiry a spoliation motion requires and resulting in an inherently arbitrary decision. This argument attempts to shift the burden of proof. As the moving party, Bracey must establish the defendants destroyed the videotapes in bad faith. Rummery, 250 F.3d at 558 (denying adverse inference instruction when moving party “offered no evidence, other than his own speculation, that [the documents] were destroyed to hide” incriminatory evidence). On the evidence available, he has not done so. The mere fact that some evidence remained unavailable to him does not lessen his burden of proof.6

Second, Bracey argues the merits of the spoliation motion, challenging the district court's finding that “defendants are just not in any way responsible for the destruction of the film.” According to Bracey, defendants had a duty to preserve the video so its destruction compels issuing an adverse inference instruction. Simply establishing defendants' duty to preserve, however, is not enough: Bracey must also show destruction in bad faith. Assuming—without deciding—that defendants had a duty to preserve the tapes, bad faith requires destruction “for the purpose of hiding adverse information.” Faas, 532 F.3d at 644. Bracey asserts only that a prison security officer reviewed his complaint. He makes no assertion that any prison official actually viewed the relevant video (or deliberately avoided watching the video for fear of what it contained). Without having seen the video, no prison official could have known the tapes potentially contained adverse information and, without that knowledge, could have destroyed the tapes for the purpose of hiding adverse information. In this regard, Mathis v. John Morden Buick, Inc. is instructive. In that case, the owner of the defendant car dealership intentionally destroyed documents that he had a legal obligation to preserve. Mathis, 136 F.3d at 1155. Nevertheless, his opponent did not show bad faith—that the owner had destroyed the documents “for the purpose of hiding adverse information”—so no adverse inference instruction could issue. Id. at 1155–56; see also Trask–Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681–82 (7th Cir.2008) (affirming denial of spoliation sanction where no evidence of bad faith); Park, 297 F.3d at 615–16 (affirming denial of spoliation sanction when records destroyed under routine record expungement policy); Coates v. Johnson & Johnson, 756 F.2d 524, 551 (7th Cir .1985) (affirming denial of spoliation sanction when records destroyed under routine procedures). Nothing in any of Bracey's filings shows defendants destroyed the video because of any damaging content it may have contained. Without that showing, Mathis forecloses Bracey's entitlement to an adverse inference instruction.

We recognize that a number of district courts have issued adverse inference instructions in situations similar to Bracey's. See Kounelis v. Sherrer, 529 F.Supp.2d 503, 519–21 (D.N.J.2008); LaJocies v. City of N. Las Vegas, No. 2:08–cv–606–GMN–GWF, 2011 WL 1630331, at *3–5 (D.Nev. Apr.28, 2011); Peschel v. City of Missoula, 664 F.Supp.2d 1137, 1143–44 (D.Mont.2009). That other trial courts have reached different conclusions on similar facts, however, does not amount to an abuse of discretion by the district court in this case. Indeed, discretion by its very nature permits different judges to reach different—but reasonable—conclusions on the same set of facts. Some circuits have adopted less stringent standards than we require for issuing an adverse inference instruction. Compare Park, 297 F.3d at 615 (requiring intentional destruction in bad faith), with Adkins v. Wolever, 692 F.3d 499, 504–05 (6th Cir.2012) (requiring only negligent destruction and a duty to preserve), and Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir.1993) (bad faith not required for adverse inference instruction). Simply establishing a duty to preserve evidence or even the negligent destruction of evidence does not automatically entitle a litigant to an adverse inference instruction in this circuit. Bracey has not made the requisite showing of bad faith, and we cannot conclude that the district court abused its discretion in declining to issue an adverse inference instruction.

Finally, in his reply, Bracey asks the court to reopen discovery so he can pursue evidence surrounding the destruction of the videotapes. He made no such motion after trial counsel entered his appearance before the district court and has not raised this request until his reply brief so that argument is waived. See Coleman v. Hardy, 690 F.3d 811, 818 (7th Cir.2012) (argument not raised before district court waived); Dye v. United States, 360 F.3d 744, 751 n. 7 (7th Cir.2004) (argument first raised in reply brief waived). Given his prior opportunities to make these requests and the civil nature of Bracey's claims, neither do the interests of justice require reopening discovery in his case.

In short, Bracey bears the burden of showing defendants had a duty to preserve the videotape and destroyed that video in bad faith. That burden has not been met.

III. Conclusion

For these reasons, we Affirm the district court's denial of Bracey's request for the recruitment of counsel and its denial of Bracey's request for an adverse inference instruction.

FOOTNOTES

1.  Inmates must face forward during escort to prevent incidents of spitting, lunging, and head-butting of corrections officers.

2.  Bracey initially raised his allegations of spoliation as a stand-alone count in the complaint. Wisconsin does not recognize spoliation as an independent tort, however, so the district court dismissed that count, describing spoliation as an issue for discovery.

3.  When evaluating a plaintiff's competence, district courts should normally consider the plaintiff's literacy, communication skills, education level, and litigation experience. Pruitt, 503 F.3d at 655. The plaintiff's intellectual capacity and psychological history are also relevant. Id.

4.  Santiago itself recognized the uniqueness of the litigant in that case: “[A]lthough the principles of law we articulate are well-established, our precise holding is limited to the facts and circumstances found in the record of this litigation. In that sense, our holding, like a special railroad fare, is limited ‘to this day and this train only.’ “ 599 F.3d at 766 (emphasis in original).

5.  Among the potentially relevant questions such policies might answer are: When are corrections officers authorized to use force? How much force is authorized in certain situations? What preliminary measures must officers take before resorting to force?

6.  We note also that Bracey has not appealed the district court's denial of his motion to compel production of the prison security policies that Bracey believes will provide the evidence supporting his spoliation argument.

FLAUM, Circuit Judge.


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