Cullom, Richard v. Brown, Jesse

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1178

Richard Cullom,

Plaintiff-Appellee,

v.

Jesse Brown, Secretary, Department of Veterans

Affairs,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 96 C 1925--Morton Denlow, Magistrate Judge.

Argued September 29, 1999--Decided April 20, 2000

Before Harlington Wood, Jr., Manion, and Evans, Circuit

Judges.

Manion, Circuit Judge. After what appeared to be

a successful period of employment as a civilian

Navy employee, Richard Cullom accepted a position

with the Hines VA Hospital as a staffing

specialist. But he soon became dissatisfied with

his employment situation and over a period of

time he filed several EEO complaints against the

Veterans Administration (VA) for discrimination.

In the hope of avoiding future complaints,

superiors at the hospital ordered Cullom’s

immediate supervisor to overrate him on his

performance evaluations. This did not work.

Cullom ultimately sued the VA for race and

employment discrimination, this time claiming

that by overrating him, it made him ineligible

for a remedial program that supposedly would have

accelerated his advancement to a higher grade.

The district court noted that "the case presents

the novel question of whether Plaintiff was

retaliated against by receiving a favorable work

evaluation while being refused promotion.

Alternatively, the case raises the question of

whether Plaintiff was retaliated against by

reason of Defendant’s failure to provide

Plaintiff with an honest evaluation and the

remedial benefits to which he was then entitled."

Cullom v. Brown, 27 F. Supp.2d 1089, 1090-91

(N.D. Ill. 1998). The district court concluded

that the unwarranted favorable ratings

constituted retaliation in violation of Title

VII, and awarded Cullom $1500 in damages plus

attorney’s fees and costs. We conclude that

giving Cullom a rating higher than he deserved

may have been a poor and even dishonest policy,

but it was not unlawful retaliation. We therefore

reverse.

I. Facts

Richard Cullom is a 55-year-old black man and an

honorably discharged veteran. Prior to coming to

the VA, he had jobs in both the public and

private sectors (including one stint as an EEO

specialist for the United States Army).

Immediately before joining the VA, Cullom worked

as a civilian for the Navy, where he was

eventually promoted to the GS-11 level. While at

the Navy, Cullom was rated "fully successful" at

both the GS-9 and GS-11 levels./1

As the district court noted, Cullom has had a

"rocky employment history with the VA." Id. at

1091. It hired him in September 1990 as a GS-9

staffing specialist on a temporary appointment

(not to exceed one year). Six months into this

assignment, his immediate supervisor, a black

female, thought Cullom’s work was unacceptable

and fired him effective March 21, 1991. Cullom

filed an EEO complaint (his first), alleging that

his supervisor had discriminated against him on

the basis of his sex by depriving him of the

proper training. The VA settled his complaint in

October 1992. Under the settlement, the VA

reinstated Cullom as a full-time GS-9 personnel

staffing specialist, subject to a six-month

probationary period. Significantly, the

settlement "set forth written performance

standards" for him. Id.

Although Cullom’s GS-9 position, even with his

probationary status, had the potential for

promotion to GS-11, Cullom did not perform well.

His immediate supervisor, Dean Lapcewich, was

frequently displeased with his work. When Cullom

requested a series of training opportunities to

assist him in his new position, Lapcewich

established a comprehensive training program for

Cullom and authorized him to attend training

courses. He also assigned Cullom a senior

staffing specialist who could mentor him and

provide him with on-the-job training. But despite

these efforts, Cullom continued to perform poorly

at the GS-9 level.

The VA has five ratings for employee

performance: (1) outstanding; (2) highly

successful; (3) fully successful; (4) minimally

successful; and (5) unacceptable. Under the VA’s

Merit Promotion Plan (Merit Plan), promotion is

not guaranteed. An employee must achieve a rating

of at least "fully successful" to be eligible for

promotion and must be in his present position for

at least one year. But simply being eligible does

not make advancement a sure thing. The employee

must also demonstrate the ability to perform the

duties of the next level./2

Lapcewich wanted to rate Cullom "minimally

successful" because he felt his work contained

significant and numerous errors, even after his

substantial formal and informal training. Because

of Cullom’s probationary status, a "minimally

successful" rating would most likely have

resulted in his termination. At a minimum, it

would have caused Cullom to be placed in a

Performance Improvement Program, or "PIP." This

is, in essence, a remedial program for employees

who are not performing up to standards (those who

receive a performance rating below "fully

successful"). It affords sub-par employees the

opportunity to improve or develop skills. But

this "opportunity" is double-edged. Placement in

a PIP also places the employee on probation,

subject to termination. At oral argument, the VA

pointed out that for many employees it is the

last stop before dismissal.

Fearing another EEO complaint if Cullom were to

receive the lower rating, Lapcewich’s supervisor-

-who was required to sign off on employee

evaluations--rejected Lapcewich’s proposed

"minimally successful" recommendation. He instead

directed Lapcewich to overrate Cullom as "fully

successful." Lapcewich rated Cullom accordingly

and did not advise him of the "minimally

successful" level of performance he was really

exhibiting at the GS-9 level. Lapcewich did,

however, meet with Cullom to discuss performance

standards, although Cullom refused to sign a form

indicating that he had received the standards.

The strategy of appeasement, if it can be called

a strategy, did not work. In September 1993,

Cullom filed a second EEO complaint. He alleged

that Lapcewich and other VA managers had

retaliated against him for his prior EEO

complaint by not promoting him to the level that

he had held in the Navy, GS-11. He alleged

Lapcewich knew about his Navy background, yet

"remained completely driven to make me compete

again for the grade I previously had."

In December, while Cullom’s second EEO complaint

was pending, Lapcewich gave Cullom his mid-year

performance review. As before, Lapcewich thought

Cullom was not performing at the GS-9 level. But

again, aware of Cullom’s complaint, higher

supervisors directed Lapcewich to overrate him as

"fully successful." Lapcewich did so, rather than

place Cullom in a PIP on probationary status, as

a lower rating would have required. Again,

Lapcewich did not inform Cullom of his true level

of performance. But he did tell him that he was

making too many mistakes, that his work required

too much review, and that he took too long on a

relatively minor project.

In April 1994, the VA settled Cullom’s second

complaint by agreeing to place him in a nine-

month, off-site program designed to train

"personnel interns" who were usually GS-7s.

Placing Cullom in this program was the idea of

Cullom’s EEO investigator who concluded, after

reviewing Cullom’s personnel file, that the

program would provide Cullom with basic personnel

skills (skills Cullom had contended that he did

not possess due to inadequate training). The

settlement, however, did not mention the

possibility of promotion to GS-11.

After the off-site training got underway,

Lapcewich evaluated Cullom for the most recent

rating period (which had ended shortly before

Cullom’s departure). He concluded that Cullom

still had not been performing at the GS-9 level.

Yet, for at least the third time, Lapcewich’s

superiors rejected his proposed rating of

"minimally successful" and directed him to rate

Cullom "fully successful." The undisputed motive

for overrating Cullom was to placate him so he

would not file another EEO complaint.

At the end of the off-site training in February

1995, the training supervisor concluded that

Cullom had "successfully completed" the intern

program. Although this supervisor thought that

Cullom exhibited a poor attitude and that his

work was worse than that of his (GS-7) training

partner, he nevertheless stated that Cullom would

be "an excellent candidate for placement" at a VA

facility. In April, Cullom returned to the Hines

facility.

In spite of efforts that could generously be

described as trying to give Cullom the benefit of

the doubt (for example, the VA once again

assigned him a mentor), Cullom filed a third EEO

complaint. He demanded performance standards and

a retroactive GS-11 promotion. When Cullom and

the VA were unable to resolve the complaint,

Cullom filed this lawsuit, alleging he was denied

a GS-11 promotion because of his race and in

retaliation for his prior EEO complaints.

While the lawsuit was pending, Cullom continued

to work as a GS-9, and his supervisors continued

to complain about his performance. His new

supervisor, Claire Hajduk, did not believe that

Cullom had demonstrated the ability to perform

GS-11 work, as the VA’s Merit Plan requires for

promotion. In November 1996, Hajduk nevertheless

convinced her supervisor to sign off on Cullom’s

promotion by stating that she believed it might

finally "jump-start" him to perform better and

because she would then be better able to evaluate

whether he was really unable to do GS-11 work.

Again, when rating time came around, Hajduk (like

Lapcewich before her) did not want to rate Cullom

"fully successful." But because her supervisor

would not allow a lower rating, Hajduk rated

Cullom’s performance as "fully successful" at his

new grade of GS-11.

Finally, in November 1997, Blanche Phillips, a

black female, began supervising Cullom. Cullom

continued to perform poorly in several respects,

and Phillips received numerous complaints about

his work, forcing her to reassign some of his

work. She still gave him a rating of "fully

successful," even though she knew he was

experiencing significant work-related problems.

She testified that Cullom continues to experience

such problems.

The district court dismissed Cullom’s race

discrimination claim, and his retaliation claim

was tried before a magistrate judge. The VA had

no choice but to admit that it did not follow its

normal procedures in rating Cullom, and because

Cullom had received favorable (although

undeserved) ratings, the court concluded that the

VA failed to present a non-retaliatory reason for

denying him an earlier promotion./3 Of course,

its non-retaliatory reason was that he had not

demonstrated that he was capable of performing at

the next level, but that flew in the face of the

series of formal, favorable evaluations he had

received. The district court essentially

concluded that the VA reacted to Cullom’s

litigious nature by "retaliating" against him by

giving him more than he deserved. As the district

court noted, "[b]ut for Plaintiff’s complaints to

the EEOC, he would have received the correct

performance evaluation and would have received

the feedback required in order to achieve

promotion. Instead, as a result of his activity,

he was given false evaluations and was denied a

performance improvement plan [PIP] to improve his

work performance, thereby denying him the

opportunity for promotion." Cullom, 27 F. Supp.2d

at 1096. It concluded that the VA "cannot provide

an employee with satisfactory evaluations and

then deny the same employee a promotion on the

theory that the evaluations are false." Id. at

1097.

The usual case of retaliation in violation of

Title VII occurs when an employee suffers an

adverse job action because he complained about

some form of discrimination. No doubt Cullom

filed numerous EEO complaints. And having his

promotion to GS-11 delayed can be labeled a

material adverse job action. But had VA

supervisors not "retaliated" by giving him, an

incompetent employee, undeserved favorable

treatment and evaluations (and ultimately a

promotion to GS-11), he would have likely been

demoted, placed on probation, and quite possibly

terminated. The question before us, then, is

whether it is a violation of Title VII for an

employer to in effect delay kicking someone

upstairs (with more pay and a higher grade level)

instead of kicking him down and possibly out. A

close examination of the statute reveals that

this undeniably poor policy does not violate the

Act.

II. Discussion

Subsection 3(a) of 42 U.S.C. sec. 2000e "has

been construed to prohibit an employer from

pursuing retaliatory measures . . . against an

employee for exercising his or her rights under

Title VII." Reed v. Shepard, 939 F.2d 484, 492

(7th Cir. 1991)./4 Under the statute, a

plaintiff must establish three basic elements by

a preponderance of the evidence to prove a claim

of retaliation: (1) that he opposed an unlawful

employment practice; (2) that he was the object

of adverse employment action; and (3) that the

adverse employment action was caused by his

opposition to the unlawful employment practice.

Hamann v. Gates Chevrolet, Inc., 910 F.2d 1417,

1420 (7th Cir. 1990) (citing Klein v. Trustees of

Ind. Univ., 766 F.2d 275, 280 (7th Cir. 1985)).

In order to prove causation, "the plaintiff must

demonstrate that the employer would not have

taken the adverse action ’but for’ the protected

expression." Johnson v. University of Wis.-Eau

Claire, 70 F.3d 469, 479 (7th Cir. 1995); see

also McNutt v. Board of Trustees of Univ. of

Ill., 141 F.3d 706, 709 (7th Cir. 1998) (after

1991 amendments to Civil Rights Act, plaintiff

still required to prove "but for" causation to

establish claim of retaliation). This is the

"ultimate inquiry" in evaluating a Title VII

claim. See Heerdink v. Amoco Oil Co., 919 F.2d

1256, 1261 (7th Cir. 1990). But while Title VII

prevents employers from punishing their employees

for complaining about discrimination, it does not

prevent an employer from unjustifiably rewarding

an employee to avoid a discrimination claim. See

42 U.S.C. sec. 2000e-3(a).

We review the district court’s factual finding

for clear error. Fed. R. Civ. P. 52(a). Brenner

v. Brown, 36 F.3d 18, 19 (7th Cir. 1994). "Our

scrutiny . . . is deferential, but it is not

abject." Carr v. Allison Gas Turbine Div.,

General Motors Corp., 32 F.3d 1007, 1008 (7th

Cir. 1994). "We must distinguish between a

situation in which ’we think that if we had been

the trier of fact we would have decided the case

differently and the situation in which we are

firmly convinced that we would have done so.’"

Turgeon v. Premark Intern., Inc., 87 F.3d 218,

221 (7th Cir. 1996) (emphasis in original)

(quoting Carr, 32 F.3d at 1008).

For an employee to prove retaliation, he must

demonstrate that he has suffered some sort of

adverse employment action. Ribando v. United

Airlines, Inc., 200 F.3d 507, 510 (7th Cir.

1999). But as we have often said, "not everything

that makes an employee unhappy is an actionable

adverse action." Id. at 511 (quoting Smart v.

Ball State Univ., 89 F.3d 437, 441 (7th Cir.

1996)). To be "adverse," the action "must be

’materially’ adverse, meaning more than ’a mere

inconvenience or an alteration of job

responsibilities.’" Id. at 510 (quoting Crady v.

Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d

132, 136 (7th Cir. 1993)).

Cullom variously complains about three "adverse

actions": his receipt of overly generous (and

thus inaccurate) performance evaluations, his

failure to be placed in a PIP (which would entail

probation and remedial training), and the VA’s

failure to promote him more quickly. The first

two can hardly be called "adverse actions."

Overrating an employee may be a misguided way of

avoiding controversy, but it is not an adverse

act, let alone a material one. In fact, when it

comes to performance ratings, most retaliation

claims involve a supervisor underrating a

subordinate for engaging in protected activity.

See Adusumilli v. City of Chicago, 164 F.3d 353,

359 (7th Cir. 1998). Even then, we have held that

negative job ratings, without more, are not

"adverse actions." See Smart, 89 F.3d at 442

("There is little support for the argument that

negative performance evaluations alone can

constitute an adverse employment action.");

accord Silk v. City of Chicago, 194 F.3d 788,

802-803 (7th Cir. 1999) (listing cases);

Gustovich v. AT&T Communications Inc., 972 F.2d

845, 847 (7th Cir. 1992). Given this precedent,

it would be strange to label as an "adverse

action" evaluations that an employee complains

are "too good."

Cullom also claims that his failure to be placed

in a PIP was an adverse action. Recall that such

a placement must be preceded by an unsatisfactory

rating in job performance. True, once demoted to

a PIP, an employee would receive some remedial

training, and a failure to receive training might

be an adverse action. See Pafford v. Herman, 148

F.3d 658, 667 (7th Cir. 1998). But as Cullom

acknowledges, a PIP is a remedial program for

probationary employees. The next step for

employees in PIP could very well be termination,

not promotion. The adversity of an employment

action is judged objectively, and no reasonable

person would call "adverse" an employer’s failure

to demote him to a remedial program and place him

on probation. See Brown v. Brody, 199 F.3d 446,

457 (D.C. Cir. 1999); Doe v. Dekalb County Sch.

Dist., 145 F.3d 1441, 1449 (11th Cir. 1998).

On the contrary, most employees would claim that

being placed in such a remedial program is an

adverse action. See Adusumilli, 164 F.3d at 358-

59, 363. And we have suggested that being placed

on probation could also be an adverse action. See

Smart, 89 F.3d at 442 (while negative evaluations

alone did not constitute an adverse action, if

plaintiff "had been, as she alleges, put on

probation, we might have a different case before

us."). Thus, if anything, the VA’s overly

generous job evaluations saved Cullom from

suffering two potentially "adverse actions,"

demotion and probation. Obviously, there is some

flexibility in defining an "adverse act." See

Ribando, 200 F.3d at 510. But we are not so

flexible that we will bend over backwards and

define as adverse a situation where an employer

overrates an employee, thus preventing the

employee from being placed on probation in a

remedial program that frequently leads to

termination.

Cullom leans heavily on Vaughn v. Edel, 918 F.2d

517 (5th Cir. 1990), a case of race

discrimination where the employer, out of fear of

a discrimination claim, overrated the plaintiff

(whose performance nevertheless deteriorated, and

who was eventually fired). In terms of an

"adverse action," however, Vaughn differs in two

critical respects and will not support Cullom.

First, Ms. Vaughn’s employer did not give her any

indication, either formally or informally, of her

unsatisfactory performance. Id. at 520 (Ms.

Vaughn was "not in any way formally criticized or

told anything regarding these problems"); id. at

522 ("Had her dissatisfied supervisors simply

counseled Vaughn informally, such counseling

would inevitably have indicated to Vaughn that

her work was deficient."). Second, and as a

result, it did not afford her the opportunity to

improve her performance. Id. ("Texaco did not

afford Vaughn the same opportunity to improve her

performance . . . as it did its white

employees.").

By contrast, notwithstanding his inflated

evaluations, the VA frequently advised Cullom

that his work was deficient. See Cullom, 27 F.

Supp.2d at 1091 ("Throughout the course of his

supervision of Plaintiff, Lapcewich expressed

displeasure with the quality of Plaintiff’s work

and periodically returned Plaintiff’s work with

its deficiencies highlighted."). Further, it gave

him written performance standards (id.), met with

him to discuss these standards (id. at 1092),

granted his request for a tailor-made training

program (id. at 1091), allowed him to take

seminars (id. at 1092), gave him additional,

nine-month off-site training (id.), provided him

mentors on two occasions (see, e.g., id. at

1094), and closely supervised his work (see,

e.g., id.). The VA, then, was not excluding

Cullom "from its efforts to improve efficiency"

in contravention of Title VII. Contrast Vaughn,

918 F.2d at 523. By affording Cullom particular

training and guidance, the VA actually gave him a

better chance to improve his performance. This

"special treatment" gave Cullom the opportunity

to improve his skills without having to bear the

stigma and risk the negative consequences

(probation and possible termination,

respectively) that would have accompanied a PIP.

We now turn to Cullom’s remaining claim of an

adverse action--the VA’s failure to promote him

sooner. Of course, because a failure to promote

affects the rate of pay and the accrual of leave,

denying Cullom an earlier promotion was not only

adverse, it was materially adverse. Thus, it

qualifies as an "adverse action" for purposes of

Title VII (and the VA concedes as much). See

Williams v. Pharmacia, Inc., 137 F.3d 944, 948

(7th Cir. 1998). The question is whether the

district court clearly erred in finding that

Cullom "established a causal link between his

protected expression in filing EEO complaints and

his failure to be promoted." Cullom, 27 F.

Supp.2d at 1095. According to the district court,

that link was the VA overrating Cullom as "fully

successful": he had already filed several EEO

complaints, and VA supervisors hoped to avoid

future filings by giving him inflated ratings.

Id. at 1096. For two reasons, the district court

erroneously concluded that this link showed that

Cullom’s EEO filings caused him not to be

promoted earlier.

First, the district court held that under the

Merit Plan Cullom’s fully successful performance

ratings entitled him to a promotion. Id. Thus, it

concluded, the fact that the VA did not promote

him earlier must have been because it was

retaliating against him for filing EEO

complaints. Id. at 1096-1097. This conclusion is

clearly erroneous. As the district court earlier

found (see n.2 supra), there is no entitlement to

promotion based solely on a job rating. Under the

Merit Plan, a "fully successful" rating is merely

a threshold requirement; an employee who does not

satisfy this minimum criterion is not even

eligible for promotion. If he does satisfy it, he

then has to have shown that he can perform at the

next level.

Promotion to the next higher grade in a career-

ladder is not guaranteed and is dependent on the

employee meeting all statutory and regulatory

requirements (i.e. minimum qualifications, time-

in-grade, etc.), the employee’s demonstration of

the ability to perform the duties of the next

higher graded position as determined by the

supervisor, and availability of work at the next

higher grade. No employee is eligible to receive

a career-ladder promotion if the employee has a

performance rating of record or special

performance rating of record of less than fully

successful.

Id. at 1096 (emphasis added) (setting out

relevant part of Merit Plan). Clearly, Cullom was

not performing up to par when he received his

inflated ratings, let alone up to GS-11 standards

(the district court even credited the VA’s

testimony that Cullom has exhibited significant

performance problems throughout his tenure). Id.

at 1091-1093. Given his performance history, the

district court clearly erred in holding that

Cullom’s formal ratings, by themselves, showed

that he was performing at the GS-11 level, that

he was thereby entitled to promotion, and thus

"but for" his EEO complaints, he would have been

promoted sooner. See Adusumilli, 164 F.3d at 363-

364 (holding that no rational jury could find

causation based on favorable performance

evaluations because they are "makeweight

evidence" and of "little significance" when there

is so "dramatic a discrepancy between evaluation

and performance").

While this error alone is sufficient to reverse,

we should address the more perplexing error in

this case. In order to find retaliation, the

district court had to string together a series of

events linking Cullom’s EEO filings to the delay

in his promotion. The district court attempted to

do this, but it misconstrued the last event in

the series:

But for Plaintiff’s complaints to the EEOC, he

would have received the correct performance

evaluation and would have received the feedback

required in order to achieve promotion. Instead,

as a result of his activity, he was given false

evaluations and was denied a performance

improvement plan [PIP] to improve his work

performance, thereby denying him the opportunity

for promotion.

Cullom, 27 F. Supp.2d at 1096. Recall, though,

that the "adverse action" is not Cullom’s failure

to be placed on probation in a PIP (for missing

out on this particular "opportunity for

promotion" under these circumstances does not

qualify as an adverse action); instead it is

Cullom’s failure, in fact, to be promoted

earlier. The district court’s causation analysis

thus should have continued further.

The proper chain is as follows: had it not been

for Cullom’s prior EEO activity, he would have

received accurate (lower) evaluations and been

placed in a PIP, and if he had been placed on

probation in such a program, he would have

successfully completed it and developed the

skills necessary to perform at the (next) GS-11

level. It is the last part of this chain that is

the weak link. Nothing in the record shows that

had Cullom been placed in a PIP, he would have

successfully completed it. The evidence, if

anything, indicates just the opposite: Cullom did

not even positively distinguish himself in

performing GS-7 duties at the off-site intern

training program and, for over four years, had

considerable difficulty performing GS-9 duties,

despite the substantial formal and informal

guidance and training he had received. Because

there is not substantial evidence that Cullom

would have successfully completed a PIP, he did

not establish that had he been placed on

probation in this program, he would have, after a

most circuitous route, been promoted earlier. See

Willis v. Marion County Auditor’s Office, 118

F.3d 542, 547 (7th Cir. 1997) (plaintiff failed

to produce evidence to establish causation).

Moreover, even if the record somehow showed that

Cullom would have successfully completed a

remedial PIP, that would have at best

rehabilitated Cullom’s GS-9 skills. There was

certainly no assurance, and likely little

probability, that this more elementary training

would have caused him to develop GS-11 skills.

Thus the district court incorrectly had to

presume that by being placed in a GS-9 PIP,

Cullom would have developed GS-11 skills. This

also was clear error. As to causation, then, the

evidence gives no indication that had Cullom been

rated accurately (as performing

unsatisfactorily), he would have likely been

promoted sooner. Cullom thus has not proven

retaliatory discrimination under Title VII.

III. Conclusion

The district court concluded that the VA

overrated Cullom out of concern that if it gave

him the lower rating he deserved, he would, in

effect, "retaliate" against it by filing another

EEO complaint. Cullom, 27 F. Supp.2d at 1097

("one can say that Plaintiff may have used the

EEO complaint system as an offensive weapon and a

threat"). As a policy matter, the VA’s behavior

is indefensible. It certainly would have been

better if the VA had had the fortitude to rate

Cullom accurately (although in doing so it would

have probably been risking another EEO

complaint). But Title VII liability does not turn

on ill-advised personnel decisions. Mechnig v.

Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th

Cir. 1988). And while honesty may be, as the

district court put it, "the best policy," it is

not for a federal court to say that for job

evaluations it is "the required policy." Cullom,

27 F. Supp.2d at 1090 (emphasis added). See

Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394,

1398 (7th Cir. 1997) (performance evaluations

"serve a variety of purposes, only one of which

is objective evaluation. They are also morale-

builders and motivators."). Thus overrating

Cullom so he would not be placed on probation,

while giving him substantial training and

oversight, was not "retaliatory" discrimination

under Title VII.

For the foregoing reasons, the judgment of the

district court is REVERSED and this case is REMANDED

for the district court to enter judgment in favor

of the defendant.

/1 "GS" refers to the "government scale" pay levels

"for VA employees paid on salary instead of a per

hour basis." Hughes v. Derwinski, 967 F.2d 1168,

1170 n.1 (7th Cir. 1992).

/2 The district court found that "[t]ypically, an

employee can be promoted to the next level after

fully successfully performing at the previous

level for the prescribed time period. For

instance, although not automatic, a GS-9 can be

promoted to GS-11 following a one-year period of

fully successful performance as a GS-9. In

addition to spending a year at the previous

grade, an employee must also demonstrate the

ability to perform the duties of the next highest

grade." Id. at 1096 (emphasis added).

/3 An employee can establish his employer’s intent

to retaliate either directly or indirectly (the

latter way by using the McDonnell Douglas burden-

shifting method). Miranda v. Wisconsin Power &

Light Co., 91 F.3d 1011, 1015 (7th Cir. 1996).

Cullom proceeded under the McDonnell Douglas

framework. After trial, the various presumptions

and burdens of the framework fall out, and the

fact-finder is left with determining whether the

plaintiff has established the ultimate issue of

intentional retaliation. United States Postal

Serv. Bd. of Governors v. Aikens, 460 U.S. 711,

713-716 (1983); St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 510-511 (1993). The district court

here erred in sticking with McDonnell Douglas

after trial, but its findings are clear, and

Cullom was able to present his case; thus, we can

review whether he established the ultimate issue.

Contrast Aikens, 406 U.S. at 717 (case had to be

remanded due to district court’s requirement that

plaintiff use only direct evidence to prove

discriminatory intent).

/4 "It shall be an unlawful employment practice for

an employer to discriminate against any of his

employees or applicants for employment . . .

because he has opposed any practice made an

unlawful employment practice 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. sec. 2000e-3(a).