Justia U.S. 7th Circuit Court of Appeals Opinion Summaries

A 1994 regulation concerning fall protection in the residential construction industry was subject to a 1999 directive instructing OSHA to not commence enforcement actions against employers using certain systems. The directive included notice of rule-making, soliciting comments on how the regulation should be amended. In 2010 the rule-making closed without amendment to the 1994 regulation. The 1999 directive was rescinded and a new directive issued, authorizing proceedings that may require employers to show, on a case-by-case basis, why they employed fall protection other than described in the 1994 regulation. Employers argued that the 2010 directive constituted an occupational health and safety standard, subject to rule-making procedures. The Seventh Circuit dismissed a petition for review. Although employers using certain systems have not been required to make case-by-case showings since 1999, the 1999 directive did not change the 1994 regulation and was only an exercise of prosecutorial discretion, as was the 2010 directive.

An African-American coroner was elected in 2004. After a contract with Indiana University for pathology services expired, two Caucasian university pathologists formed a company (FP) and contracted to provide services. The new coroner replaced the deputy coroner with an African-American, resulting in a successful claim of reverse discrimination. The new deputy expressed concerns about costs under the FP contract and whether FP used county supplies for outside work allowed by the contract. The county terminated the contract under a six-month notice provision and hired an African-American pathologist without conducting a search or checking references. The change did not save money. FP and the pathologists filed suit under 42 U.S.C. 1983. The district court entered summary judgment for the defendants. The Seventh Circuit reversed and remanded, stating that a reasonable fact-finder would not be compelled to believe that the contract was terminated because of cost. The contract allowed the county to require FP to stop performing outside work, but the defendants chose not to do so despite their statements that they were very satisfied with FP's services. The coroner had made remarks about wanting to replace white workers with African-Americans; although he contracted with FP, it is possible to infer that FP was intended to serve as a "placeholder" for a seamless transition until African-American replacements could be found.