ight of Circumstantial Evidence
	Harvey v. Office of Banks and Real Estate, 377 F.3d 698, 707, 94 FEP Cases 550 (7th Cir. 2004), affirmed the judgment on a jury verdict for plaintiffs. Citing Costa, the court stated: “Most of the evidence that Harvey and King presented was circumstantial in nature, but that fact alone says nothing about the soundness of the jury’s verdict.”
Retaliation
Retaliation for Complaints Against Others
	Flowers v. Columbia College Chicago, 397 F.3d 532, 533–34, 95 FEP Cases 237 (7th Cir. 2005), reversed the Rule 12(b)(6) dismissal of plaintiff’s Title VII retaliation claim, holding that Title VII protects an employee who complains of discrimination by a third party. Here, plaintiff was employed by defendant but was assigned to work with the Chicago School System under a contract between it and defendant. The court rejected defendant’s argument that Title VII protects only employees who file a complaint against their employers:
	If the College were right, then any firm could opt out of Title VII by adopting a holding-company structure. Suppose that Acme Industries were to create two subsidiaries: Acme Personnel and Acme Operations. Acme Personnel would hire and pay all employees; Acme Operations would carry on the firm’s production using employees from Acme Personnel. On the College’s legal view, Acme Operations could engage in religious (and other) discrimination with impunity, because it would not be the “employer,” while Acme Personnel could fire anyone who complained about discrimination at Acme Operations, because the complaint would not concern Acme Personnel’s conduct. That reductio ad absurdum can be avoided by reading § 2000e–3(a) to mean what it says. No employer may retaliate against someone who makes or supports a charge of discrimination against any employer. 
Retaliatory Harassment 
	Noviello v. City of Boston, 398 F.3d 76, 89 (1st Cir. 2005), reversed the grant of summary judgment to the Title VII defendant on plaintiff’s claim of retaliatory harassment. Recognizing the split among the Circuits, the court held: “The weight of authority supports the view that, under Title VII, the creation and perpetuation of a hostile work environment can comprise a retaliatory adverse employment action under 42 U.S.C. § 2000e-3(a).” (Citations omitted.)
	Smith v. Northeastern Illinois University, 388 F.3d 559, 567 n.5, 94 FEP Cases 1295 (7th Cir. 2004), affirmed the grant of summary judgment and the judgment on a jury verdict for the Title VII racial harassment defendants. The court stated: “The creation of a hostile work environment can be a form of retaliation.”
	Baker v. John Morrell & Co., 382 F.3d 816, 830 (8th Cir. 2004), affirmed the judgment on a jury verdict for the Title VII and Iowa Human Rights Act sexual harassment and retaliation plaintiff, including the awards of $839,470 in compensatory damages, $33,314 in back pay, $38,921 in front pay, $650,000 in punitive damages (remitted to $300,000), and $174,927 in attorneys’ fees and costs, a total of $1,386,632. The court upheld the jury’s finding that plaintiff’s female supervisor, Kathi Brown, retaliated against her for having filed her complaint with the Iowa Civil Rights Commission by creating a retaliatory hostile environment severe enough to qualify as an adverse employment action: “Here, Baker presented evidence showing Brown became antagonistic towards her because the ICRA complaint reflected badly on Brown’s job performance. In response, Brown limited Baker’s bathroom and other breaks, added to her job duties, refused to provide her necessary job assistance, repeatedly yelled at her for making mistakes, withheld privileges allowed to other employees, and attempted to dissuade her from making further complaints. We are satisfied these retaliatory changes in working conditions constituted significant and material disadvantages sufficient to support the retaliation claim.” 
Determinations of Actionable Conduct 
	Eliserio v. United Steelworkers of America Local 310, 398 F.3d 1071, 95 FEP Cases 421 (8th Cir. 2005), reversed the grant of summary judgment to the Title VII and § 1981 harassment and retaliation claims. The Hispanic plaintiff crossed a picket line during a strike, and resigned from Local 310. He thereafter became the target of graffiti referring to him as a “rat” and using racial slurs such as “Taco Bob” and “Ratserio.” Divisional chairman Steve Vonk asked Firestone to remove plaintiff from his work area, and the company demoted plaintiff. The court stated that the nature of the prima facie case is different when the defendant is a union: “Because unions often do not have the authority to subject a represented employee to an adverse employment action, we have held that any meaningful adverse action is sufficient when the retaliation defendant is a union.” Id. at 1079 (emphasis in original; citation omitted). The court held that Vonk’s complaint to Firestone was “a meaningful adverse action.” Id.  
Causation 
	Eliserio v. United Steelworkers of America Local 310, 398 F.3d 1071, 1079, 95 FEP Cases 421 (8th Cir. 2005), reversed the grant of summary judgment to the Title VII and § 1981 harassment and retaliation claims. The Hispanic plaintiff crossed a picket line during a strike, and resigned from Local 310. He thereafter became the target of graffiti referring to him as a “rat” and using racial slurs such as “Taco Bob” and “Ratserio.” Local 301 Divisional chairman Steve Vonk asked Firestone to remove plaintiff from his work area, and the company demoted plaintiff. The court stated that a temporal connection can establish a causal link, although generally this is not sufficient by itself. It continued:
	Eliserio repeatedly complained of racial harassment from early 2001, when the graffiti began to appear, until Vonk’s complaint in September 2001. This temporal connection supports an initial inference of causation. In addition, Vonk admitted that as a result of Eliserio’s complaints of racial harassment to Firestone, he was forced to devote significant time to investigating and attempting to remedy the ongoing graffiti situation. Vonk stated that as a result of his uncompensated overtime work on union business, he often was forced to forgo opportunities for paid overtime. A reasonable jury could infer that Vonk’s attempt to have Eliserio removed from his area was motivated by Vonk’s desire to avoid the drain on his time caused by Eliserio’s continuing complaints of racial harassment. This inference would provide the necessary causal link between Eliserio’s complaints of racial harassment and Vonk’s complaint to Firestone. Therefore, we conclude that Eliserio presents a prima facie case of retaliation.
Comparators 
	Miller-El v. Dretke, __ U.S. __, 125 S. Ct. 2317, 2325–28 (2005), reversed the denial of habeas corpus and held that petitioner had shown racial discrimination in the prosecutor’s peremptory challenges by clear and convincing evidence. The Court cited Reeves v. Sanderson Plumbing Products, id. at 2325, underscoring the relevance of this decision to employment law. The Court relied heavily on comparators: 
	More powerful than these bare statistics, however, are side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve. If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step. Cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147, 82 FEP Cases 1748 (2000) (in employment discrimination cases, “[p]roof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive”). While we did not develop a comparative juror analysis last time, we did note that the prosecution’s reasons for exercising peremptory strikes against some black panel members appeared equally on point as to some white jurors who served.
The Court then discussed in detail two sets of comparisons. “The prosecution used its second peremptory strike to exclude Billy Jean Fields, a black man who on voir dire expressed unwavering support for the death penalty,” id. at 2326, and who stated that the possibility of rehabilitation would not lead him to vote against the death penalty. The Court focused not only on comparisons of the substance of the responses of Fields and of white venire members who were not struck, but also on differences in prosecutor James Nelson’s questioning of Fields, and his questioning of white venire members 
	Fields was struck peremptorily by the prosecution, with prosecutor James Nelson offering a race-neutral reason: 
“[W]e . . . have concern with reference to some of his statements as to the death penalty in that he said that he could only give death if he thought a person could not be rehabilitated and he later made the comment that any person could be rehabilitated if they find God or are introduced to God and the fact that we have a concern that his religious feelings may affect his jury service in this case.” Id., at 197 (alteration omitted).
	Thus, Nelson simply mischaracterized Fields’s testimony. He represented that Fields said he would not vote for death if rehabilitation was possible, whereas Fields unequivocally stated that he could impose the death penalty regardless of the possibility of rehabilitation. Perhaps Nelson misunderstood, but unless he had an ulterior reason for keeping Fields off the jury we think he would have proceeded differently. In light of Fields’s outspoken support for the death penalty, we expect the prosecutor would have cleared up any misunderstanding by asking further questions before getting to the point of exercising a strike.
	If, indeed, Fields’s thoughts on rehabilitation did make the prosecutor uneasy, he should have worried about a number of white panel members he accepted with no evident reservations. Sandra Hearn said that she believed in the death penalty “if a criminal cannot be rehabilitated and continues to commit the same type of crime.” Id., at 429. Hearn went so far as to express doubt that at the penalty phase of a capital case she could conclude that a convicted murderer “would probably commit some criminal acts of violence in the future.” Id., at 440. “People change,” she said, making it hard to assess the risk of someone’s future dangerousness. “[T]he evidence would have to be awful strong.” Ibid. But the prosecution did not respond to Hearn the way it did to Fields, and without delving into her views about rehabilitation with any further question, it raised no objection to her serving on the jury. White panelist Mary Witt said she would take the possibility of rehabilitation into account in deciding at the penalty phase of the trial about a defendant’s probability of future dangerousness, 6 Record of Voir Dire 2433 (hereinafter Record), but the prosecutors asked her no further question about her views on reformation, and they accepted her as a juror. Id., at 2464–2465. Latino venireman Fernando Gutierrez, who served on the jury, said that he would consider the death penalty for someone who could not be rehabilitated, App. 777, but the prosecutors did not question him further about this view. In sum, nonblack jurors whose remarks on rehabilitation could well have signaled a limit on their willingness to impose a death sentence were not questioned further and drew no objection, but the prosecution expressed apprehension about a black juror’s belief in the possibility of reformation even though he repeatedly stated his approval of the death penalty and testified that he could impose it according to state legal standards even when the alternative sentence of life imprisonment would give a defendant (like everyone else in the world) the opportunity to reform. 
Id. at 2327–28 (footnotes omitted).
	The unlikelihood that his position on rehabilitation had anything to do with the peremptory strike of Fields is underscored by the prosecution’s response after Miller-El’s lawyer pointed out that the prosecutor had misrepresented Fields’s responses on the subject. A moment earlier the prosecutor had finished his misdescription of Fields’s views on potential rehabilitation with the words, “Those are our reasons for exercising our ... strike at this time.” Id., at 197. When defense counsel called him on his misstatement, he neither defended what he said nor withdrew the strike. Id., at 198. Instead, he suddenly came up with Fields’s brother’s prior conviction as another reason for the strike. Id., at 199.
Id. at 2328. The Court continued, emphasizing that comparators need not be identical for the comparison to have probative force:
	In sum, when we look for nonblack jurors similarly situated to Fields, we find strong similarities as well as some differences.6 But the differences seem far from significant, particularly when we read Fields’s voir dire testimony in its entirety. Upon that reading, Fields should have been an ideal juror in the eyes of a prosecutor seeking a death sentence, and the prosecutors’ explanations for the strike cannot reasonably be accepted. . . .
__________
	6 The dissent contends that there are no white panelists similarly situated to Fields and to panel member Joe Warren because “‘“[s]imilarly situated” does not mean matching any one of several reasons the prosecution gave for striking a potential juror—it means matching all of them.’” . . . None of our cases announces a rule that no comparison is probative unless the situation of the individuals compared is identical in all respects, and there is no reason to accept one. Nothing in the combination of Fields’s statements about rehabilitation and his brother’s history discredits our grounds for inferring that these purported reasons were pretextual. A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters.
Id. at 2329. The Court next addressed the prosecution’s strike of Joe Warren, a black venire member. The State did not strike white venire members who expressed the same views as Warren. Id. at 2329–30. The State urged that it struck Warren when it still had a number of peremptory challenges left, and did not strike whi