Hans Rapold v. Baxter International, Incorpo
| HANS J. RAPOLD |
| BAXTER INTERNATIONAL, INCORPORATED |
| 11-2715 |
| July 27, 2011 |
| U.S. Court of Appeals, Seventh Circuit |
| Other Contract Actions |
Docket Report
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| Filing 48 Filed order from the Supreme Court DENYING the Petition for Writ of Certiorari. 13-287. [48] [6528306] [11-2715] (SM) [Entered: 11/04/2013 02:17 PM] |
| Filing 47 Filed notice from the Supreme Court of the filing of a Petition for Writ of Certiorari. 13-287. [47] [6512576] [11-2715] (AM) [Entered: 09/04/2013 01:37 PM] |
| Filing 46 Mandate issued. No record to be returned. [46] [6492461] [11-2715] Date updated: 06/11/2013 (RS) [Entered: 06/11/2013 08:49 AM] |
| FOR COURT USE ONLY: Certified copy of 01/30/2013 Final Order with Mandate sent to the District Court Clerk. [6492474-2] [6492474] [11-2715] (RS) [Entered: 06/11/2013 09:03 AM] |
Filing 45
ORDER: Appellant Hans J. Rapold Petition for Rehearing and Petition for Rehearing Enbanc is DENIED. The opinion of this court issued on January 30, 2013 is amended as follows: Page 13, line 27, motivating factor was should be motivating factor instruction was; Page 16, line 30, inappropriate, given that should be inappropriate:; Page 17, line 2, at least partially true. should be at least partially trueand Baxter maintained at all times that Dr. Rapolds national origin played no role in its decision.; Page 17, line 3, agreed and concluded should be agreed. It concluded; Page 18, line 3, the following should be added after the citation to Smith, 602 F.3d at 333": ([A]n employee who is discharged for perceived discriminatory reasons will surely always believe the employer lacked a legitimate reason for the termination, and the mixed-motive framework does not require the plaintiff to concede that the employers stated reason was legitimate. That is why we have juries.); Page 18, beginning on line 25 the sentence beginning For that reason should be deleted. The remainder of the page (lines 26-30) should likewise be deleted. Page 19, lines 1 through 27 (ending with (quoting 42 U.S.C. 2000e-2).) should also be deleted; Instead, the following should be inserted beginning on page 18, line 25, at the sentence concluding from the outset. : See Price Waterhouse v. Hopkins, 490 U.S. 228, 247 n.12 (1989) (Nothing in this opinion should be taken to suggest that a case must be correctly labeled as either a pretext case or a mixed-motives case from the beginning in the District Court; indeed, we expect that plaintiffs often will allege, in the alternative, that their cases are both.) (plurality opinion); see also Smith, 602 F.3d at 332. As the plurality in Price Waterhouse noted, [a]t some point in the proceedings, of course, the District Court must decide whether a case involves mixed motives. 490 U.S. at 247 n.12 (emphasis added). The problem here is that the district courts conclusion was premised on its erroneous belief that a mixed-motive factor instruction was appropriate only if Dr. Rapold conceded that his behavior motivated, at least in part, Baxters decision. Such a concession is unnecessary. Instead, once either party requests a motivating factor instruction, the district court should simply determine whether the evidence supports the instruction. See Desert Palace, 539 U.S. at 101 ([I]n order to obtain an instruction under 2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that . . . national origin was a motivating factor for any employment practice.) (quoting 42 U.S.C. 2000e-2)).; Page 19, line 27, the sentence beginning But this language should be deleted. All of lines 27-31 on page 19 should be deleted; Page 20 should be deleted in its entirety; Page 21, lines 1-7 should be deleted. Line 8 should be deleted up to the sentence beginning Taken in context; In place of these deletions (page 19, line 27 through page 21, line 8) the opinion should be modified as follows: Beginning on page 19, line 27, immediately following the sentence ending (quoting 42 U.S.C. 2000e-2) the opinion should read: The correct question then is whether Dr. Rapold presented sufficient evidence that his national origin played some part in Baxters decision. Framed thus, it is a close question whether Dr. Rapold was entitled to a motivating factor instruction. As detailed above, Dr. Rapold introduced at trial several instances in which Hunt referred to so-called European cultural differencesfrom attributing difficulties with Dr. Rapold to culture to stating that perhaps someone could work with him who understood the Germanic approach, which she described as an autocratic, hierarchical management style. The problem with Dr. Rapolds argument, however, is that when presented in context, none of these instances support an inference that Hunt or Baxter held any discriminatory animus against Germans, Europeans, or Dr. Rapold himself. Shortly after Dr. Rapold began his consultancy, he exhibited a pattern of rude, arrogant, and authoritarian behavior. Instead of terminating the consultancy immediately, Baxter and Hunt in particular posited that perhaps Dr. Rapolds inappropriate behavior could be explained by his cultural background and that with a little effort he could adjust his behaviors to conform with Baxters legitimate business expectations. That is to say, there is no evidence in the record suggesting Hunt or anyone else at Baxter posited that because Dr. Rapold was Germanic he was arrogant and rude; rather, the evidence supports only the conclusion that Dr. Rapold revealed himself to be arrogant and rude, and Hunt speculated that his cultural background could provide one explanation for his inappropriate behavior. Thus, we are hard-pressed to see how the motivating factor instruction would have made a difference here: the evidence shows that Baxter responded to Dr. Rapolds conduct, not to any preexisting notion of how German or European employees behave. Even were we to assume that the district court erred by denying Dr. Rapolds request for the instruction, such an error would be harmless given the overwhelming evidence that Baxter withdrew his job offer based solely on his unacceptable behavior. Cf. United States v. Vallone, 698 F.3d 416, 464 (7th Cir. 2012) (Even if we were persuaded that it was an abuse of discretion for the court not to give the instruction, any error in refusing to give it was harmless, given the overwhelming evidence showing that the defendants appreciated the illegality of their conduct.). Our review of the evidence convinces us that Dr. Rapold was not entitled to judgment in his favor either with or without the mixed-motive instruction. Page 21, line 15, tendencies, the testimony establishes Hunts attempt to help Dr. Rapold succeed at Baxter even as she should be tendencies or demonstrating that Baxters view of those traits as immutable, the testimony establishes Hunts optimism that Dr. Rapold could conform to the culture at Baxter even as she Page 21, line 26 delete the sentence The district court was therefore within its wide discretion to conclude that the evidence painted an either or picture that did not lend itself to the mixed-motive instruction. Page 22, line 1 and 2 we are confident should be it is apparent from the record.[45] [6490345] [11-2715] (FP) [Entered: 06/03/2013 09:55 AM]
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| Filing 44 Filed Answer to Petition for Rehearing and Petition for Rehearing Enbanc by Appellee Baxter International, Incorporated, per order. [44] [6468515] Paper copies due on 03/07/2013. [11-2715] (BS) [Entered: 03/04/2013 02:13 PM] |
| Filing 43 Filed Response answer by Appellee Baxter International, Incorporated to Petition For Rehearing En Banc. [43][6468424] [11-2715]--[Edited 03/04/2013 by FP to reflect that this is answer to rehearing enbanc.] (Saibert, Frank) [Entered: 03/04/2013 11:30 AM] |
| Filing 42 Sent clerk's copy of request to Appellee Baxter International, Incorporated requesting 30 copies of their answer to the Petition for Rehearing and Petition for Rehearing Enbanc filed by Appellant Hans J. Rapold on 02/13/2013. Answer to Petition for Rehearing due for Appellee Baxter International, Incorporated by 03/05/2013. [6465242] [11-2715] (CMD) [Entered: 02/19/2013 03:39 PM] |
| Filing 41 Filed Petition for Rehearing and Petition for Rehearing Enbanc by Appellant Hans J. Rapold. Paper copies due on 02/19/2013 [41] [6463976] [11-2715] (RS) [Entered: 02/13/2013 10:55 AM] |
| Filing 40 Submitted petition for rehearing enbanc by Brian R. Holman for Appellant Hans J. Rapold. [40] [6463942] [11-2715] (Holman, Brian) [Entered: 02/13/2013 10:26 AM] |
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Filing 39
ORDER: Final judgment filed per opinion. With costs: yes. [39] [6460433] [11-2715] (AD) [Entered: 01/30/2013 11:30 AM]
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| Filing 38 Filed opinion of the court by Judge Rovner. AFFIRMED. Frank H. Easterbrook, Chief Judge; Ilana Diamond Rovner, Circuit Judge and John Daniel Tinder, Circuit Judge. [38] [6460429] [11-2715] (AD) [Entered: 01/30/2013 11:29 AM] |
| Filing 37 Case argued by Brian B. Holman for Appellant Hans J. Rapold and Mr. John T. Ruskusky for Appellee Baxter International, Incorporated. [37] [6365865] [11-2715] (GW) [Entered: 01/12/2012 10:34 AM] |
| Filing 36 Case heard and taken under advisement by panel: Frank H. Easterbrook, Chief Judge; Ilana Diamond Rovner, Circuit Judge and John Daniel Tinder, Circuit Judge. [36] [6365863] [11-2715] (GW) [Entered: 01/12/2012 10:34 AM] |
| Filing 35 Disclosure Statement filed by Attorney John T. Ruskusky for Appellee Baxter International, Incorporated. [35] [6363920] [11-2715]--[Edited 01/05/2012 by JLC. Added Attorney John T. Ruskusky for Appellee Baxter International, Incorporated, in case 11-2715, for purposes of oral argument and per the filing of this disclosure statement.] [35] [6363920] [11-2715] (Saibert, Frank) [Entered: 01/05/2012 12:36 PM] |
| Filing 34 Received argument confirmation from John T. Ruskusky for Appellee Baxter International, Incorporated. [34] [6363846] [11-2715] (Saibert, Frank) [Entered: 01/05/2012 10:35 AM] |
| Filing 33 Received argument confirmation from Brian R. Holman for Appellant Hans J. Rapold. [33] [6363820] [11-2715] (Holman, Brian) [Entered: 01/05/2012 10:08 AM] |
| Filing 32 Argument set for Thursday, January 12, 2012, at 10:00 a.m in the Main Courtroom, Room 2721. Each side limited to 15 minutes. [32] [6359999] [11-2715] (RS) [Entered: 12/16/2011 03:59 PM] |
| Filing 31 NOTICE: Attorney Brian B. Holman for Appellant Hans J. Rapold will not be available for oral argument 01/16/2012 through 01/23/2012. [31] [6359495] [11-2715] (Holman, Brian) [Entered: 12/15/2011 10:07 AM] |
| Filing 30 NOTICE: Attorney Frank J. Saibert for Appellee Baxter International, Incorporated will not be available for oral argument January 4-6, 10, 12-13 or 19 and February 7-8. [30] [6359150] [11-2715] (Saibert, Frank) [Entered: 12/14/2011 11:24 AM] |
| Filing 29 NOTICE: Attorney Brian B. Holman for Appellant Hans J. Rapold will not be available for oral argument 12/05/2011-12/9/2011. [29] [6354789] [11-2715]--[Edited 11/23/2011 by AB] (Holman, Brian) [Entered: 11/23/2011 02:52 PM] |
| Filing 28 Appellant's reply brief filed by Appellant Hans J. Rapold. Paper copies due on 11/25/2011. Electronically Transmitted. [6353701][28] [11-2715] (GW) [Entered: 11/18/2011 04:12 PM] |
| Filing 27 Submitted appellant reply brief by Brian R. Holman for Appellant Hans J. Rapold. [27] [6353665] [11-2715] (Holman, Brian) [Entered: 11/18/2011 03:28 PM] |
| Filing 26 Appellee's brief filed by Appellee Baxter International, Incorporated. Electronically Transmitted. [6350540][26] [11-2715] (AB) [Entered: 11/04/2011 09:51 AM] |
| Filing 25 Re-Submitted appellee brief by Frank J. Saibert for Appellee Baxter International, Incorporated. [25] [6350497] [11-2715] (Saibert, Frank) [Entered: 11/03/2011 05:02 PM] |
| Filing 24 Re-Submitted appellee brief by Frank J. Saibert for Appellee Baxter International, Incorporated. [24] [6350484] [11-2715]--[Edited 11/04/2011 by RS the brief is a scanned PDF] (Saibert, Frank) [Entered: 11/03/2011 04:08 PM] |
| Filing 23 Submitted appellee brief by Frank J. Saibert for Appellee Baxter International, Incorporated. [23] [6350414] [11-2715]--[Edited 11/04/2011 by RS the brief is a scanned PDF] (Saibert, Frank) [Entered: 11/03/2011 02:29 PM] |
| Filing 22 Appellant's brief filed by Appellant Hans J. Rapold. Paper copies due on 10/13/2011. Electronically Transmitted. [6343378][22] [11-2715] (RS) [Entered: 10/06/2011 08:41 AM] |
| Filing 21 Submitted appellant brief by Brian R. Holman for Appellant Hans J. Rapold. [21] [6343153] [11-2715] (Holman, Brian) [Entered: 10/05/2011 01:39 PM] |
| Filing 20 Supplemental record on appeal filed per order. Contents of record : 1 vol. of loose pleadings. [20] [6335024] [11-2715] (RT) [Entered: 09/06/2011 08:51 AM] |
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Filing 19
Order issued GRANTING Stipulated Motion to Supplement Record on Appeal. The clerk of this court shall file the tendered Joint Exhibit 9 (which is attached as Exhibit 2 to the Stipulated Motion to Supplement Record on Appeal) as a supplement to the record on appeal. [ # 18 ] AIN [19] [6334944] [11-2715] (AD) [Entered: 09/02/2011 03:08 PM]
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| Filing 18 Joint motion filed by Appellant Hans J. Rapold and Appellee Baxter International, Incorporated to supplement Record on Appeal. [6334879] [11-2715]--[Edited 09/02/2011 by SM - Correct version of doc# 17 in Native PDF format.] (Saibert, Frank) [Entered: 09/02/2011 01:42 PM] |
| Filing 17 Joint motion filed by Appellant Hans J. Rapold and Appellee Baxter International, Incorporated to correct Record on Appeal. [6334831] [11-2715]--[Edited 09/02/2011 by SM - This is a Scanned PDF; a Native PDF must be submitted.] (Saibert, Frank) [Entered: 09/02/2011 12:06 PM] |
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Filing 16
ORDER: Pursuant to Circuit Rule 33, briefing will proceed as follows: Appellant's brief due on or before 10/05/2011 for Hans J. Rapold. Appellee's brief due on or before 11/04/2011 for Baxter International, Incorporated. Appellant's reply brief, if any, is due on or before 11/18/2011 for Appellant Hans J. Rapold. JB [6333031] [11-2715] (JLC) [Entered: 08/26/2011 04:05 PM]
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Filing 15
ORDER: This Court has received 1 electronic file, document no. 94, under seal from the district court. All documents filed in this Court, except those required to be sealed by statute or rule are considered public. Pursuant to 7th Circuit Operating Procedure 10(b), documents sealed in the district court will be maintained under seal in this Court for 14 days, to afford time to request the approval required by section (a) of this operating procedure. Absent a motion from a party these sealed documents will be placed in the public record on 09/06/2011. Motion shall be filed by 09/02/2011 [15] [6331283] [11-2715] (RT) [Entered: 08/19/2011 01:54 PM]
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| Filing 14 Filed electronic transcript of proceedings held on 11/05/09, 01/18/11, 01/25/11, 01/26/11, 01/27/11, 01/28/11, 02/25/09. [14] [6330996] THIS TRANSCRIPT IS FOR INTERNAL COURT USE ONLY. Remote electronic access to the transcript is ONLY available through the District Court's PACER system. [11-2715] (DP) [Entered: 08/18/2011 02:04 PM] |
| Filing 13 Original record on appeal filed electronically. Contents of record : 17 vol.of pleadings; 1 sealed document. [13] [6330994] [11-2715] (DP) [Entered: 08/18/2011 01:57 PM] |
| Filing 12 Filed Seventh Circuit Transcript Information Sheet by Appellant Hans J. Rapold. [12] [6330881] [11-2715] (CMD) [Entered: 08/18/2011 10:41 AM] |
| Filing 11 Filed Notice of Filing by Appellee Baxter International, Incorporated. [11] [6329444] [11-2715] (Saibert, Frank) [Entered: 08/11/2011 04:25 PM] |
| Filing 10 Disclosure Statement filed by Attorney Frank J. Saibert for Appellee Baxter International, Incorporated. [10] [6329443] [11-2715] (Saibert, Frank) [Entered: 08/11/2011 04:23 PM] |
| Filing 9 Filed Seventh Circuit Transcript Information Sheet by Appellee Baxter International, Incorporated. [9] [6329394] [11-2715] (Taylor, Jill) [Entered: 08/11/2011 03:05 PM] |
| Filing 8 Filed Seventh Circuit Transcript Information Sheet by Appellant Hans J. Rapold. [8] [6328745] [11-2715] (Holman, Brian) [Entered: 08/09/2011 02:29 PM] |
| Filing 7 Amended docketing statement filed by Appellant Hans J. Rapold. Prior or Related proceedings: No. [7] [6328740] [11-2715] (Holman, Brian) [Entered: 08/09/2011 02:22 PM] |
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Filing 6
ORDER: Pursuant to Circuit Rule 33, briefing will proceed as follows: Appellant's brief due on or before 09/26/2011 for Hans J. Rapold. Appellee's brief due on or before 10/26/2011 for Baxter International, Incorporated. Appellant's reply brief, if any, is due on or before 11/09/2011 for Appellant Hans J. Rapold. JB [6328513] [11-2715] (KH) [Entered: 08/08/2011 03:56 PM]
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| Filing 5 Notification of Circuit Rule 33 conference issued. The conference will be conducted in Room 1120, Friday, August 26, 2011 at 2:00 p.m. JB. [5] [6328511] [11-2715] (KH) [Entered: 08/08/2011 03:54 PM] |
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Filing 4
Order: Appellant shall file a complete statement of jurisdiction that includes the omitted information. The statement is due on or before August 11, 2011. DW [4] [6327773] [11-2715] (AD) [Entered: 08/04/2011 03:13 PM]
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| Filing 3 Docketing statement filed by Appellant Hans J. Rapold. Prior or Related proceedings: No. [3] [6327430] [11-2715] (Holman, Brian) [Entered: 08/03/2011 04:50 PM] |
| Filing 2 Disclosure Statement filed by Attorney Brian Holman for Appellant Hans J. Rapold. Edited by ATM to reflect addition of Attorney Holman. [2] [6327418] [11-2715] (Holman, Brian) [Entered: 08/03/2011 04:30 PM] |
| Filing 1 Private civil case docketed. Fee paid. Docketing Statement due for Appellant Hans J. Rapold by 08/03/2011. Transcript information sheet due by 08/10/2011. Appellant's brief due on or before 09/06/2011 for Hans J. Rapold. Record on Appeal from Northern District of Illinois, Eastern Division due by 08/17/2011. [1] [6325671] [11-2715] (CMD) [Entered: 07/27/2011 03:20 PM] |
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| Plaintiff / appellant: HANS J. RAPOLD | |
| Represented By: | Brian R. Holman |
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| Defendant / appellee: BAXTER INTERNATIONAL, INCORPORATED | |
| Represented By: | Frank J. Saibert |
| Represented By: | John Ruskusky |
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