Marion County Coroner ’ S Office v. Equal Employment Opportunity Commission

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3595
M ARION C OUNTY C ORONER ’ S O FFICE ,
Petitioner,
v.
E QUAL E MPLOYMENT O PPORTUNITY C OMMISSION ,
Respondent,
and
J OHN L INEHAN ,
Intervening Respondent.
Petition for Review of an Order of the
Equal Employment Opportunity Commission.
No. 1120080001
A RGUED J UNE 3, 2010—D ECIDED J ULY 27, 2010
Before M ANION , E VANS , and S YKES , Circuit Judges.
E VANS , Circuit Judge. The chief deputy coroner of
Marion County, Indiana, John Linehan, a white male, was
stripped of certain duties and ultimately fired by the
coroner, Dr. Kenneth Ackles, an African-American male.

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2 No. 09-3595
Marion County is located in central Indiana and includes 1
the city of Indianapolis. According to its website, the coroner’s
office “serves all those who die in Marion County, their families
and other associated agencies in the investigation of unusual
and unexplained deaths, resulting in timely and accurate
completion of the Coroner’s Verdict and death certificates.”
Marion County Coroner’s Office, http://www.indy.gov/
eGov/County/Coroner/Roles/Pages/strat-plan.aspx (last visited
June 14, 2010).
After hearing testimony from fourteen witnesses, an
Equal Employment Opportunity Commission (EEOC)
administrative law judge (ALJ) found that the coroner’s
office took action against Linehan based on his race and
in retaliation for an internal complaint that Linehan
filed against Ackles. Linehan was awarded front and
back pay, attorney’s fees, and $200,000 in compensatory
damages. The EEOC affirmed in all material respects.
The coroner’s office now petitions for review, arguing
that the findings of discrimination and retaliation were
erroneous and that, even if they were not, the compensa-
tory damages award was excessive under the circum-
stances.
The Marion County coroner is an elected, part-time
position. By contrast, the chief deputy coroner, who1
reports directly to the coroner, is a non-elected position
charged with the day-to-day management of the coroner’s
office. Among other things, the chief deputy coroner is
responsible for supervising and disciplining employees
and preparing the office’s budget. He also works with
the coroner on hiring and firing decisions.

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No. 09-3595 3
In November 2004, Ackles, a chiropractor by trade,
was elected coroner. At that time, Linehan and
Alfarena Ballew, an African-American deputy coroner,
both sought the position of chief deputy coroner. Ackles
chose Linehan for the job because he was currently
serving as the interim chief deputy, and Ackles wanted
to maintain continuity in the office. Ackles and Linehan
were sworn in as coroner and chief deputy coroner,
respectively, in January 2005.
Soon after, Ackles met with Linehan to discuss his
(Ackles’) agenda. During their conversation, Ackles said
that he “really needed to find a way to get more African-
Americans into the Coroner’s Office,” especially as dep-
uties. Ackles asked Linehan to determine how to execute
this plan. Linehan contacted the city’s legal office and
learned that deputy coroners could not be removed
without cause. Nevertheless, a city/county council mem-
ber who had been on Ackles’ campaign committee regu-
larly sent Linehan resumes and encouraged him to hire
more African-American staff.
In February 2005, Ackles was informed about a salary
increase for Linehan’s position. Ackles later testified that
he had not been told about the raise previously. Linehan
testified, however, that Ackles had reviewed the budget
and approved of the raise, which Linehan had proposed
while serving as the interim chief deputy coroner.
In March 2005, Linehan recommended the termination
of a white deputy coroner, Bill Morris. Morris had been
disciplined by the previous chief deputy coroner
and recently suspended for failing to properly handle

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4 No. 09-3595
and preserve key evidence from a crime scene in a case
involving the FBI. Ackles agreed with the recommenda-
tion at the time but later testified that he could not
clearly recall the specific incident prompting Morris’
firing. When asked whether such conduct could warrant
termination, however, Ackles agreed that it could.
In June or July 2005, Linehan recommended disciplining
Ballew for multiple performance issues. On one occasion,
it took Ballew over an hour to arrive at the scene of a
homicide, although office policy required that she
respond within thirty minutes. During her absence, the
victim was left lying in the street, with her friends and
family watching. On another occasion, Ballew took more
than two hours to arrive at a hospital where a child was
dying. The family wanted to donate the child’s organs,
but because Ballew arrived late, the organs were no
longer usable. On that occasion, Linehan offered to send
another deputy, but Ballew assured him that she would
be “right there.” Despite these incidents, Ackles told
Linehan not to discipline Ballew.
Ballew’s problems continued the next month when,
despite arriving thirty minutes late for a mandatory
staff meeting, she prepared a time sheet indicating that
she had arrived on time. Linehan wanted to discipline
Ballew, but Ackles once again stopped him from filing
a written report. When Ballew continued to arrive late
to meetings and crime scenes, however, Linehan prepared
a written reprimand with the assistance of the human
resources office (and without Ackles’ knowledge). Linehan
later testified that he normally did not submit pro-

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No. 09-3595 5
The record is conflicting regarding the janitor’s race. The ALJ 2
said that he was African-American; the EEOC said that his
race was unknown; and the coroner’s office’s discovery re-
sponses said that he was white.
posed disciplinary actions to the coroner for approval. He
did so initially in Ballew’s case, however, to avoid the
appearance of bias, as she had applied for the position
of chief deputy coroner.
Shortly thereafter, an anonymous letter was sent to
members of the city/county council accusing Linehan of
“double dipping” or “ghost employment”—that is, billing
the coroner’s office for time spent working elsewhere.
Indeed, Linehan was working as a paramedic on his
days off. But outside employment was permitted, and
Linehan had previously disclosed this information. In
response to Ackles’ questions about the letter, Linehan
gave him written documentation demonstrating the
validity of his hours. Ballew later admitted to authoring
the anonymous letter.
Around the same time, Linehan discovered that $3,000
was missing from a property locker. When he contacted
the city’s legal office, Linehan was told to immediately
file a police report. Although Ackles told him not to file
the report, Linehan eventually did so at the urging of the
legal office. Additional property was also found missing,
but everything eventually turned up in a janitor’s closet.2
Ackles directed Linehan not to take any disciplinary
action against the janitor and forbade Linehan from
contacting the police again. Nevertheless, Ackles later

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6 No. 09-3595
testified that, under those circumstances, disciplining the
janitor was proper.
In early November 2005, Ballew failed to attend another
mandatory meeting. When Linehan confronted her,
Ballew yelled at him, called him a liar, threatened him,
and accused him of mistreating African-American staff.
Ballew also claimed that she had received permission
from Ackles to skip the meeting. Linehan attempted to
contact Ackles but was unable to reach him. When Linehan
finally spoke to Ackles, he had already discussed the
matter with Ballew. Ackles told Linehan that he could no
longer discipline Ballew without his (Ackles’) permission.
Troubled by the incident, on November 14, 2005,
Linehan filed a complaint with the human resources
office, alleging a hostile work environment. Later that
day, Ackles told Linehan that he was “going to make
a change in chief deputies” but did not provide an ex-
planation. During the same conversation, and on several
other occasions, Ackles told Linehan to get his hostile
work environment complaint “taken care of.” Ackles also
said that he wanted a smooth transition to the next
chief deputy coroner and that Linehan was to continue
performing his duties until the transition occurred.
Linehan continued to receive the same pay, although
he was stripped of responsibility for supervising em-
ployees. The office staff were later informed that Linehan
would no longer be chief deputy coroner. They were told
to consult Keith Conaway, a white deputy coroner, re-
garding runs and Ballew regarding death certificates.
Linehan’s understanding was that he would become a
deputy coroner once he was removed as chief deputy.

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No. 09-3595 7
Linehan subsequently left on a previously scheduled
vacation. Just prior to his departure, he received a call
from a reporter about an investigation into the ghost
employment allegations. Linehan called the city’s legal
office, but it too was unaware of any investigation.
While he was away, however, a news story came out
quoting Ackles as saying that Linehan was being investi-
gated. Upon returning to work, Linehan discussed the
ghost employment allegations with Ackles and expressed
disappointment that he told the media about a non-
existent investigation. Linehan also discovered papers in
his office left by Ballew, including a list of tasks she
intended to undertake as chief deputy coroner, a plan to
review the office’s pathology contract, and a copy of the
anonymous letter accusing Linehan of ghost employment.
On December 2, 2005, Linehan received a letter from
Ackles terminating his employment. The letter stated that
Linehan’s “termination for this position of Chief Deputy
Coroner is effective immediately” but provided no expla-
nation as to why he was being fired. Ackles later testified
that he took action against Linehan because he (Ackles)
had “lost confidence and trust” in Linehan, citing
among other things Linehan’s “nit-picking” of certain
employees, his mishandling of the investigation into
the missing funds, and his failure to inform Ackles
about the raise.
Conaway took over Linehan’s duties on an interim
basis. A few weeks later, however, Ackles named Ballew
as Linehan’s permanent replacement. Linehan later testi-
fied that, due to several discriminatory and retaliatory

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8 No. 09-3595
Two FPA pathologists, along with FPA itself, subsequently 3
filed a complaint accusing the county, Ackles, and Ballew of
reverse race discrimination regarding the termination of their
contract. The defendants’ motion for summary judgment in
that case was recently granted, and the plaintiffs have ap-
pealed. See Radentz v. Marion County, No. 1:07-cv-1161, 2010 WL
503025 (S.D. Ind. Feb. 8, 2010), appeal docketed, No. 10-1523 (7th
Cir. Mar. 4, 2010).
actions, he sought “[w]eekly” treatment for “[s]everal
months” for “[s]ituational depression.”
After Linehan left, Ackles and Ballew cancelled the
coroner’s office’s contract with Forensic Pathology Associ-
ates (FPA), a company that performed autopsies for the
county. They ultimately hired one non-FPA pathologist
and four FPA support staff, all of whom were African-
American, and declined to hire any FPA pathologists or
other support staff, all of whom were white. During3
this time, a receptionist overheard Ackles and Ballew
discussing the pathology contract. Ackles “was kind of
laughing and said, ‘I will put my people where they
belong.’ ” Ballew was “kind of laughing back” and re-
sponded, “ ‘We’re in charge?’ and he said, ‘Yup.’ ”
In February 2006, Linehan filed an EEO charge against
the coroner’s office, alleging discrimination on the basis
of race, sex, and age and retaliation for prior protected
activity. He claimed that the coroner’s office took action
against him on November 14, 2005, when he was
relieved of certain duties as chief deputy, and on Decem-
ber 2, 2005, when his employment was terminated.

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No. 09-3595 9
As its title suggests, GERA extends workplace discrimina- 4
tion rights to certain government employees exempted by
Title VII. See Bd. of County Comm’rs v. EEOC, 405 F.3d 840, 843
(10th Cir. 2005); Brazoria County v. EEOC, 391 F.3d 685, 689
(5th Cir. 2004).
The ALJ denied Linehan’s claim that his demotion con- 5
stituted retaliation because he found that Ackles decided to
demote Linehan before he filed his internal complaint. The
ALJ also found insufficient evidence of sex and age discrimina-
tion.
Linehan was protected by the Government Employee
Rights Act (GERA) because, as chief deputy coroner, he4
was an “individual chosen or appointed” by a state or
local official (here, the coroner) “to serve the elected
official on the policymaking level.” See 42 U.S.C. § 2000e-
16c(a). As a result, his charge was processed through
an administrative proceeding before the EEOC. See id. at
§ 2000e-16c(b)(1).
After hearing all of the evidence, the ALJ determined
that Ackles’ testimony was incredible, vague, and contra-
dictory. He also found that the reasons Ackles gave
for taking action against Linehan were pretextual. The
ALJ concluded that Linehan was demoted on the basis
of his race, and terminated on the basis of his race and
in retaliation for his internal complaint against Ackles. 5
The EEOC affirmed in all relevant respects, finding that:
(1) substantial evidence supported the ALJ’s conclusion
that Ackles’ reasons for taking action against Linehan
were pretext for race discrimination; (2) the EEOC had
jurisdiction over the retaliation claim because Linehan

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10 No. 09-3595
remained in a policymaking position until his termina-
tion; and (3) the compensatory damage award was not
“monstrously excessive.”
Pursuant to GERA, we uphold the EEOC’s order unless
it was: “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not consistent with law; (2) not made con-
sistent with required procedures; or (3) unsupported by
substantial evidence.” 42 U.S.C. § 2000e-16c(d). “Substan-
tial evidence” is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). It is
more than a scintilla but less than a preponderance. Id.
The first issue is whether there was substantial evidence
of race discrimination. Although the coroner’s office
expended considerable ink in its briefs arguing about
the prima facie case, at oral argument, its counsel accu-
rately conceded that, at this juncture, the “heart” of the
matter is the finding of pretext. See generally United
States Postal Service Board of Governors v. Aikens, 460 U.S.
711, 713-15 (1983) (criticizing the parties’ focus on the
prima facie case after a trial on the merits); Scruggs v.
Garst Seed Co., 587 F.3d 832, 838 (7th Cir. 2009) (noting
that courts can proceed directly to the pretext inquiry
where, as here, the defendant offered a nondiscrim-
inatory reason for its action). When conducting a pretext
analysis, we ask only whether the employer’s explana-
tion was “honestly believed.” Argyropoulos v. City of
Alton, 539 F.3d 724, 736 (7th Cir. 2008). An employee
may demonstrate that his employer’s reason was
pretextual by showing that the reason had no basis in
fact or was insufficient to motivate the employment

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No. 09-3595 11
action. Davis v. Wisconsin Department of Corrections, 445
F.3d 971, 977 (7th Cir. 2006).
The EEOC determined that Ackles’ stated reason for
taking action against Linehan—namely, that Ackles had
“lost confidence and trust” in Linehan—was pretextual.
Substantial evidence supports this finding. For example,
Ackles testified that he lost confidence and trust in
Linehan because he was “nit-picking” certain employees,
including Ballew and the janitor. Putting aside the fact
that Ackles’ so-called disagreements with Linehan
about Ballew were the very basis for Linehan’s race
discrimination claim, a wealth of evidence supported
Linehan’s decision to discipline her, which he did only
once. Furthermore, Ackles admitted that Linehan did not
have the ability to fire employees, casting doubt on
Ackles’ assertion that he feared Linehan would terminate
Ballew. And as for the janitor, the evidence showed that
Linehan found missing property in the janitor’s closet.
Ackles himself acknowledged that, under those circum-
stances, it would be proper to discipline the janitor. The
EEOC therefore could have reasonably found that these
reasons were insufficient to motivate the employment
action.
Relatedly, the coroner’s office also claims that Ackles
disapproved of Linehan’s handling of the investigation
into the missing funds. As we pointed out at oral argu-
ment, however, it is hard to see how Linehan’s handling
of the investigation—which included contacting the
city’s legal office and following its instructions to file
a police report—could be worthy of disapproval. But
in any event, the EEOC found that Ackles never testi-

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12 No. 09-3595
The coroner’s office attempts to refute the evidence on this 6
point by arguing that Ackles hired Linehan, a white male, and
replaced him with Conaway, another white male. But as we
previously discussed, Ackles hired Linehan because he was
already performing the chief deputy duties, and Ackles
(continued...)
fied that Linehan’s handling of the investigation contrib-
uted to Ackles’ loss of confidence or trust in Linehan.
This explanation could accordingly be dismissed.
Ackles also testified that he was dissatisfied with
Linehan’s raise. The EEOC found his testimony incredible,
however, because Ackles reviewed the budget providing
for the raise when he was elected. Moreover, as Ackles
knew, Linehan prepared the budget when he was
serving as the interim chief deputy coroner. At that time,
Linehan could not have known that he would be in the
position of chief deputy coroner the following year. The
coroner’s office now argues that Ackles was upset not
because of the raise itself but because he heard about the
raise from someone other than Linehan. Considering that
Ackles reviewed the budget when he took office, this
reason too is unconvincing.
Like the EEOC, we need not address every piece of
evidence in the record. See Terry v. Astrue, 580 F.3d 471,
477 (7th Cir. 2009). The point is that there was enough
evidence to demonstrate that Ackles’ stated reason for
taking action against Linehan was pretextual. Ackles’
lack of credibility, combined with his stated preference
for employing African-Americans and his actions
taken in furtherance of that goal, was sufficient for6

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No. 09-3595 13
(...continued) 6
wanted continuity in the office. And as for Conaway, he
only took over on an interim basis for a few weeks until
Ballew was permanently installed.
the EEOC to find that Linehan was subjected to race
discrimination.
The next issue is whether the EEOC had jurisdiction
over Linehan’s retaliation claim. To repeat, the parties
agree that, until November 14, 2005, Linehan was an
“individual chosen or appointed . . . to serve the elected
official on the policymaking level” and therefore covered
by GERA. See 42 U.S.C. § 2000e-16c(a)(2). The coroner’s
office argues that the EEOC lacked jurisdiction over
Linehan’s retaliation claim, however, because he was
no longer a policymaking employee when he was fired
on December 2, 2005. The resolution of this issue turns
on the significance of the events of November 14.
On that day, Ackles told Linehan that he was “going to
make a change in chief deputies.” (Emphasis added.)
Ackles also said that Linehan was to continue
performing his duties until the transition occurred. Al-
though the office staff were told to consult other deputies
regarding certain matters, and Linehan was stripped of
responsibility for supervising employees, he continued to
receive the same pay and retained other policymaking
duties. Furthermore, the letter that Linehan received
on December 2 stated that his “termination for this posi-
tion of Chief Deputy Coroner is effective immediately.”
(Emphasis added.) Thus, it was reasonable for the EEOC

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14 No. 09-3595
At oral argument, we questioned the coroner’s office’s 7
construction of the statute in question, which would result in
the splitting of claims that arose three weeks apart. The office’s
counsel replied that the statute only needed “reading,” not
construction. We disagree that the plain language of the
statute points directly to a conclusion in this case. Rather,
we conclude that the EEOC’s finding here was reasonable.
to conclude that, although he previously had been
stripped of certain duties, Linehan continued to be em-
ployed as chief deputy coroner, and therefore on the
policymaking level, until he was fired. 7
The final issue is whether the compensatory damage
award of $200,000 was acceptable. In reviewing these
determinations, we typically ask: (1) whether the award
is “monstrously excessive”; (2) whether there is no
rational connection between the award and the evidence;
and (3) whether the award is comparable to those in
similar cases. Fox v. Hayes, 600 F.3d 819, 845 (7th Cir. 2010).
“An award for nonpecuniary loss can be supported, in
certain circumstances, solely by a plaintiff’s testimony
about his or her emotional distress.” Tullis v. Townley
Engineering & Manufacturing Co., Inc., 243 F.3d 1058, 1068
(7th Cir. 2001).
That said, the evidence here does not come close
to supporting the $200,000 award for compensatory
damages. The testimony on Linehan’s suffering was
extremely brief and only indicated that Linehan had
undergone “[w]eekly” therapy sessions for “[s]everal
months” for “[s]ituational depression.” Nor are the under-

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No. 09-3595 15
lying facts of Linehan’s case—to sum up, he was fired
from a political post because of his race and in retalia-
tion for filing an internal complaint after a few verbal
altercations with his superior—so extraordinary as to
warrant such an award. Cf. Neal v. Honeywell, Inc., 191
F.3d 827, 832 (7th Cir. 1999) (“Had Neal merely lost
her job as a result of the discrimination, we would
think $200,000 excessive, even though Neal suffered
ostracism, a year-long depression, and upheaval in her
life. But Neal’s claim is out of the ordinary, given the
threats of physical injury.”); Avita v. Metropolitan Club of
Chicago, Inc., 49 F.3d 1219, 1229-30 (7th Cir. 1995) (finding
award of $21,000 excessive for a plaintiff who was still
“deeply distressed” years after incurring a retaliatory
discharge).
In an attempt to justify the amount awarded, Linehan
and the EEOC rely heavily on our decisions in Farfaras
v. Citizens Bank & Trust of Chicago, 433 F.3d 558 (7th Cir.
2006), and Deloughery v. City of Chicago, 422 F.3d 611 (7th
Cir. 2005). Farafaras, in which we upheld an award of
$200,000, is readily distinguishable as it involved “re-
peated physical and verbal harassment” and multiple
witnesses who testified about the plaintiff’s distress.
Farafaras, 433 F.3d at 566. Deloughery, in which we up-
held a remittitur from $250,000 to $175,000, involved a
plaintiff who, unlike Linehan, did not seek professional
help after she was denied a promotion. Nevertheless, the
plaintiff testified that she was devastated by not being
promoted, detailed several obstacles that she had over-
come in her life, and explained the dramatic impact of
her employer’s decision on herself and her family. A co-

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16 No. 09-3595
worker also testified about the “demoralizing impact” of
the employment action on the plaintiff. Deloughery, 422
F.3d at 615. In short, the evidence in Farafaras and
Deloughery provided a much stronger basis for a $200,000
award than the evidence here.
When asked at oral argument what Linehan’s award
should be, the coroner’s office’s counsel replied, “Zero.”
While we agree that the amount is excessive under the
circumstances, surely some measure of compensatory
damages for emotional distress is warranted. Based on
our review of the evidence and comparable cases, we
believe that a remittitur to $20,000 would keep the
award within rational limits. If the respondents do not
consent to the remittitur, there will be a new hearing on
the issue. See Fox, 600 F.3d at 846.
For the foregoing reasons, the petition for review is
D ENIED IN P ART and G RANTED IN P ART . The compensatory
damages award is V ACATED , and the matter is R EMANDED
to the EEOC for proceedings consistent with this opinion.
7-27-10

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