author: PER CURIAM.

text:
    Eymarde LAWLER, Plaintiff-Appellant, v. PEORIA SCHOOL DISTRICT NO. 150, An Illinois Local Governmental Entity, Defendant-Appellee.
    No. 15-2976
    United States Court of Appeals, Seventh Circuit.
    Argued July 7, 2016
    Decided September 16, 2016

      Richard L. Steagall, Nicoara & Steagall, Peoria, IL, for Plaintiff-Appellant.

      Stanley B. Eisenhammer,. Hodges, Loiz-zi, Eisenhammer, Rodick & Kohn LLP, Arlington Heights, IL, for Defendant-Ap-pellee.
    Before WOOD, Chief Judge, and BAUER and KANNE, Circuit Judges.
   PER CURIAM.

Eymarde Lawler was diagnosed with post-traumatic stress disorder (“PTSD”) at least five years before School District 150 in Peoria, Illinois, hired her to teach students with learning disabilities. For the next nine years Lawler performed that job satisfactorily and was given tenure, and not until 2010, when her psychiatrist concluded that Lawler had suffered a relapse of her PTSD, did District 150 learn about her impairment After that Lawler was transferred to - a different school to teach children with not only learning disabilities but also severe emotional and behavioral disorders. Both Lawler and her supervisor at the new school thought she was ill-prepared for this new role, but District 150 did not relent. After a year in the hew position, Lawler was rated as “satisfactory,” but then at the start of her second year she was injured by a disruptive student, sending her to the hospital with a concussion and neck injury. Her psychiatrist notified District 150 that this episode and other recent incidents had “retrig-gered” Lawler’s PTSD and that she needed to be transferred to a different teaching environment. District Í50 did not transfer Lawler but instead accelerated her next performance appraisal, rated her as unsatisfactory, and fired her as part of an announced reduction in force that ended with all but “unsatisfactory” teachers being rehired. Lawler then filed this action under the Rehabilitation Act of 1973, see 29 U.S.C. § 794, claiming that District 150 not only failed to accommodate her PTSD but also fired her in retaliation for requesting an accommodation. The district court granted summary judgment for the school district, and in this appeal the principal issue is whether a jury reasonably could find, as Lawler says, that the school district failed to accommodate her PTSD. We conclude that a jury could find for Lawler, and thus we vacate the judgment and remand the case for trial.

Background

Except as noted, the parties agree about the material evidence, which we view in the light most favorable to Lawler, the opponent of summary judgment. See E.E.O.C. v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000).

Dr. Steven Hamon, a clinical psychologist, began treating Lawler in 1994. He diagnosed complex PTSD with accompanying symptoms of dissociation and depression. After five years of treatment, Lawler was hired by District 150 to teach special education classes part time but eventually obtained full-time employment and then tenure. She received annual performance reviews, which included Satisfactory ratings from 2006 through 2011. As of 2011, Lawler’s PTSD was still in remission.

The school district first found out about Lawler’s PTSD during the 2009-2010 school year, after Lawler’s relationship with the principal of her school had deteriorated and she asked to take a leave of absence. Dr. Hamon wrote a letter to Human Resources recommending that Lawler be given a temporary leave of absence followed by a transfer to a different school. Hamon explained that the “conflictual situation” between Lawler, the principal, and other teachers was affecting Lawler’s mental health. Lawler’s request for a leave of absence was granted in May 2010, and she did not return to work until the beginning of the 2010-2011 school year.

That fall Lawler was reassigned to the Day Treatment program at Trewyn School. That program is for children with learning disabilities as well as severe behavioral and emotional disorders. Lawler, who had not been consulted about this assignment, was nervous about her qualifications. Although she was trained to educate students with learning disabilities, she did not have any experience working with students suffering from severe behavioral problems. Before the school year began, Lawler communicated her apprehension to her new supervisor at Trewyn Day Treatment, Mary Camp, who shared her concerns and contacted Human Resources about Lawler’s lack of experience. In response District 150 told Lawler that she had no choice about the Trewyn placement. Lawler made the best of this inflexibility, and by the end of her first year, she had earned a “satisfactory” rating from Camp, who even noted areas of improvement. Camp wrote that Lawler had “been developing interpersonal skills that have been [cited] as weaknesses in the past.” She noted that Lawler had made improvements in managing the classroom, actively engaging students, and using nonverbal means of correcting behavioral problems. She added that Lawler needed to continue improving in these areas.

Lawler was assigned to the same position for 2011-2012, but that school year proved to be a difficult one for her. During the summer her father had passed away unexpectedly, leaving Lawler and her siblings to cope with caring for their disabled mother. And just before school started, Lawler had been at an ice cream shop when a woman pulled up in an SUV and began screaming that her friends had been shot; Lawler went to the SUV to help, saw a man with severe gunshot wounds, and called 911. Then on September 16, a male student in Lawler’s class broke away from a police officer and collided with Lawler, causing her to hit her head against a wall and suffer a concussion. She was taken to the hospital, where she was treated for neck spasms. Her family physician, Dr. Henry Gross, followed up and treated Lawler for neck pain and stiffness as well as headaches. After this incident Dr. Ha-mon, the psychologist, notified Human Resources that the year’s events had “retrig-gered” Lawler’s PTSD. He opined that Lawler needed, and requested on her behalf, a two-week leave of absence and then a transfer to a classroom having fewer students with behavioral and emotional disorders.

Teri Dunn, the Director of Human Resources, received Dr. Hamon’s letter on September 21, 2011, and met with Lawler the same day. Lawler was given a two-week medical leave of absence but not a transfer, and she and Dunn disagree about when and why the decision was made to refuse a transfer. According to Lawler’s deposition testimony, Dunn told her during this meeting that she would not be given a transfer and asked her to complete paperwork relevant only to the medical leave of absence. In contrast, at her deposition Dunn said that she recalls telling Lawler that additional information was needed to process her transfer request and included the necessary forms in a packet of paperwork provided during the meeting. Dunn insisted that only later did she deny the transfer request, and that was because she never received the completed paperwork.

Lawler’s leave of absence started immediately after the meeting with Dunn. Two days later, Lawler sent Dunn an e-mail stating in part: “I am confident that if I return to Day Treatment I’ll be able to do the job I’ve been hired to do. I realize that my request for a transfer is not a guarantee.” Lawler then met with Dr. Hamon, who wrote Human Resources saying that “Lawler may return to work” on October 5, 2011. This letter from the psychologist did not list any work restrictions or allude to his earlier opinion that Lawler should be transferred.

The day she returned to work in October 2011, Lawler used the school’s photocopier to duplicate a letter from Dr. Gross, the family physician, stating that “due to injury at work” Lawler “can no longer participate” in the Day Treatment program. Gross wrote that Lawler should be removed from that program for children with severe behavioral and emotional disabilities and transferred to an environment comparable to where she had worked previously. Lawler inadvertently left the doctor’s note on .the copier, where it was found by Mary Camp. After reading it Camp sent Lawler home with instructions to contact Human Resources. That same day, by Lawler’s account, she met with Teri Dunn and explained that, although she realized Dunn had denied her transfer, she procured the letter to give to her union because she still wanted a different teaching placement. During discovery Dunn denied any recollection of this meeting.

Dr. Gross’s letter would become significant the following February when Lawler received her next (and, as it turned out, last) performance evaluation. In that evaluation, Carolyn Nunn, who replaced Mary Camp as Lawler’s supervisor in October, says that Lawler eventually confessed to her that a friend, not Dr. Gross, had written the letter so that she could be transferred away from Camp. Nunn repeated that accusation in her deposition, but Lawler says it’s a lie. There is no evidence that the letter is a fake, and' the copy produced during discovery appears to have been faxed directly from Dr. Gross’s medical office.

Nunn’s evaluation of Lawler also describes purported problems with unnecessarily abrasive communications, inappropriate interruptions of classes, inappropriate interactions with other employees and students, and inappropriate handling of confidential matters. Nunn says in the evaluation, for example, that on one occasion Lawler “needlessly interrupted instruction” to retrieve a document that she felt was missing from the computer lab’s binder of student sign-in sheets. Another time, according to the evaluation, Lawler interrupted a teacher who was collecting student breakfast orders to get the teacher’s write-up about a student who had reported feeling unsafe with his father (an incident that occurred two months previously). According to the evaluation, Lawler had “upset the teacher for the rest of the day” by interrupting the breakfast preparations and made her “unable to complete her responsibilities clearly.” Yet another example Nunn gives of Lawler’s “inappropriate interactions with other employees” is an incident in which Lawler dispatched another teacher to the office to get assistance in dealing with unruly students after she apparently had told a teaching assistant, who was having an asthma attack, to seek help from another TA. The students, Nunn, says in the evaluation, “perceived this as disrespect for the aide and started yelling at Mrs. Lawler and throwing objects.” The students’ unruliness “could have been avoided,” the evaluation continues, “if Ms. Lawler had shown compassion for the aide’s medical condition.” As an example of Lawler not “handling confidential matters tactfully,” Nunn describes a situation when a security officer found marijuana in a student’s desk and, before the officer could notify Nunn, Lawler had “walked from one end of the building to the other” to find Nunn and tell her “which student’s desk and who was thought to be the rightful owner.”

Ultimately, Nunn rated Lawler’s performance as “unsatisfactory” in that February 2012 evaluation. .This was the first unsatisfactory rating- that Lawler had received in her 14 years with District 150. Other evaluations (typically completed in April or May of each year) had remarked generally that Lawler “would benefit from handling confidential information and difficult situations with her students and colleagues more tactfully in accordance with district policies and practices.” One review, written by Lawler’s supervisor right before Lawler’s transfer, to the Day Treatment program at Trewyn, noted that Lawler’s “greatest obstacle” was “working cooperatively with colleagues” and stated that she had created “so much unnecessary drama” that “no one else wanted to work with her.” Despite these critical comments, however, Lawler always had received “satisfactory” ratings.

Lawler also received two disciplinary write-ups during the 2011-2012 school year. In December 2011, after Lawler had asked to be transferred out of the Day Treatment program at Trewyn, District 150 suspended her for three days on account of an incident that had occurred in September, before she was injured by the unruly student. Lawler was required under 320 ILCS 20/4(a-5) to report suspected child abuse to the Illinois Department of Child and Family Services. Lawler had overheard a student telling another that his father was abusing him, and Lawler immediately reported the conversation to Camp, who was still her supervisor. District 150. does not dispute that Camp told Lawler she need not report the incident to DCFS because the student was a “liar.” Nevertheless, after Nunn had replaced Camp as her supervisor, Lawler also reported the incident to her. Nunn countermanded Camp and told Lawler to call DCFS and make a report, which Lawler did. Lawler also was disciplined in February 2012, two days after the unsatisfactory performance evaluation, because she had “dumped” a disruptive student.out of his desk and used improper restraint techniques.

A couple of weeks after receiving her performance evaluation, Lawler submitted to Human Resources another letter from Dr. Hamon recommending a leave of absence for the remainder of the school year and then reassignment to a different classroom at the start of the new school year. The school district approved a leave of absence through the end of March 2012 but asked Lawler for additional medical documentation before deciding whéther to extend that leave through the end of the year. Lawler provided more documentation from Dr. Hamon and a psychiatrist, Dr. Arun Pinto, substantiating the need for extended leave because of her mental health.

District 150 agreed to extend Lawler’s leave through the end of the school year, but she was not reassigned to a different classroom for the 2012-2013 school year. Instead, District 150 notified Lawler in April 2012 that she and 57 other teachers were being “honorably” discharged as part of a reduction in force. The unsatisfactory evaluation had placed Lawler in “Group 2” of teachers — by statute, the first group to be discharged during a RIF after those teachers who were recently hired, or only part-time. 105 ILCS 5/24-12(b). Although the position that Lawler had held at Trew-yn School became available again in the fall after District 150 concluded that its finances were adequate to reverse the RIF and fill all vacated teaching jobs, Lawler was not rehired. She sued the school district in state court claiming that it had violated the Illinois School Code by not rehiring her, but the state courts concluded that teachers in Group 2 do not have recall rights under the School Code. See Frakes v. Peoria Sch. Dist. No. 150, 382 Ill.Dec. 217, 12 N.E.3d 217 (Ill. App. Ct. 2014).

A couple of weeks before filing that lawsuit, Lawler brought this one in federal court under the Rehabilitation Act, claiming that District 150 had failed to accommodate her PTSD and also had retaliated with the unsatisfactory evaluation because she had asked for an accommodation. In granting summary judgment for District 150 on both claims, the district court reasoned that the school district had sufficiently engaged in an interactive process to accommodate Lawler’s PTSD by permitting a two-week medical leave of absence. The court thought that Lawler’s email saying that she could return to work and Dr. Hamon’s letter approving her return were “fatal” to her assertion that the accommodation was insufficient. And the retaliation claim also failed because Lawler, according to the court, had not demonstrated a causal connection between .her expressed need for an accommodation and the unsatisfactory performance evaluation.

Analysis

As an initial matter District 150 argues that the final judgment in Lawler’s state-court lawsuit precludes her federal claims under the doctrine of res judicata. We disagree. Even.assuming that Lawler could have joined her Rehabilitation Act claims with her claim in state court under the School Code, see Walczak v. Chicago Bd. of Educ., 739 F.3d 1013, 1016-17 (7th Cir. 2014), we conclude that District 150 acquiesced to “claim-splitting.” Federal courts must give a state judgment the same preclusive effect that it would have in state court, see Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Walczak, 739 F.3d at 1016, and one aspect of Illinois’s preclusion doctrine is the rule

against “splitting” a claim between separate lawsuits, which prohibits a plaintiff from suing for part of a claim in one action and then suing for the remainder in another action. See Brown v. City of Chicago, 771 F.3d 413, 414-15 (7th Cir. 2014); Rein v. David A. Noyes & Co., 172 Ill.2d 325, 216 Ill.Dec. 642, 665 N.E.2d 1199, 1206-07 (1996). An exception exists, however, if the defendant acquiesces to claim-splitting, which may occur by not timely objecting. See Rein, 216 Ill.Dec. 642, 665 N.E.2d at 1207; see also Piagentini v. Ford Motor Co., 366 Ill.App.3d 395, 304 Ill.Dec. 106, 852 N.E.2d 356, 363 (2006) (concluding that defendant had acquiesced to claim-splitting by participating in discovery and waiting 3½ years before moving to dismiss second lawsuit on ground of res judicata), vacated on unrelated ground, 228 Ill.2d 552, 319 Ill.Dec. 901, 886 N.E.2d 1025 (2008); Thorleif Larsen & Son, Inc. v. PPG Indus., Inc., 177 Ill.App.3d 656, 126 Ill.Dec. 738, 532 N.E.2d 423, 427 (1988) (concluding that defendant acquiesced to claim-splitting by not objecting to maintenance of separate suits); Restatement (Seoond) of Judgments § 26, cmt. a, at'235 (“The failure of the defendant to object to the splitting of the plaintiffs claim is effective as an acquiescence in the splitting of the claim.”). Even though Lawler filed her state-court complaint within weeks of filing her federal suit, District 150 waited more than 18 months to raise res judicata as a potential affirmative defense in the federal case. District 150 hasn’t given any reason for this delay, nor has it explained why its prolonged inaction should not be treated as acquiescence. What is more, even if we did not interpret District 150’s conduct as acquiescence, the only claim that could plausibly have been barred by the rule against claim-splitting would be Lawler’s contention that, after she had sought an accommodation, District 150 retaliated by giving her the negative performance evaluation that prevented her rehire when the school district reversed its RIF. Lawler’s claim that District 150 failed to accommodate her need for a transfer in September 2011, long before the RIF was announced, has little, if any, overlap with Lawler’s state-court case, which dealt only with whether she was improperly dismissed and whether the School Code obligated the school district to hire her back when the RIF was deemed unnecessary.

So neither of Lawler’s claims was precluded, but in this court she does not discuss — and thus has abandoned — her claim of retaliation. Thus, we consider only her claim that District 150 failed to accommodate her disability. On that claim Lawler argues that the district court erred in granting summary judgment to District 150 because, she asserts, the record includes a material dispute about whether Teri Dunn, the Director of Human Resources, worked with her to accommodate her PTSD. Lawler insists that, during their very first meeting on September 21, 2011, Dunn summarily refused to consider transferring her out of the Day Treatment program at Trewyn. And this action, Lawler contends, constituted a refusal to engage in the interactive process required by statute. Moreover, Lawler continues, if the school district interpreted her follow-up email or Dr. Hamon’s follow-up letter to mean that she no longer sought an accommodation, someone should have asked for clarification. But, Lawler concludes, no one at District 150 followed up until she renewed her request for a transfer later that spring, after her allegedly declining performance already had earned her the negative performance evaluation.

Under the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (and thus, the Rehabilitation Act, see Ozlowski v. Henderson, 237 F.3d 837, 839 (7th Cir. 2001)), both the employer and employee are responsible for engaging in an “interactive process” to find a reasonable accommodation for the employee’s disability. See 29 C.F.R. § 1630.2(o)(3); Spurting v. C & M Fine Pack, Inc., 739 F.3d 1055, 1061 (7th Cir. 2014); Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996). Both parties are required to make a “good faith effort” to determine what accommodations are necessary, but if a breakdown of the process occurs, “courts should attempt to isolate the cause ... and then assign responsibility.” Beck, 75 F.3d at 1135.

According to Lawler’s version of events (which, because this case was decided at summary judgment, must be credited), the school district’s response to her expressed need for a transfer amounted to a refusal to engage in the interactive process. The Director of Human Resources summarily refused to authorize a transfer after reading Dr. Hamon’s letter in which he opined that Lawler should “transfer to another special education job in the District that does not involve [behavioral and emotional disorder] students.” The Director’s outright refusal belies any contention that District 150 made a reasonable attempt to explore possible accommodations, such as looking for open positions in other schools or reducing the number of students with behavioral or emotional disorders in Lawler’s classroom. See Miller v. Ill. Dep’t of Corr., 107 F.3d 483, 486 (7th Cir. 1997) (explaining that employer must “make a reasonable effort to explore the possibilities” after learning of employee’s request for accommodation). The school district simply sat on its hands instead of following-up with Lawler or asking for more information. See E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 803-04 (7th Cir. 2005) (“[A]n employer cannot shield itself from liability by choosing not to follow up on an employee’s requests for assistance, or by intentionally remaining in the dark.”). If the school district had inquired about its long-term employee, it would have learned that many of the interpersonal issues cited by Lawler’s supervisors as performance problems likely were caused by her PTSD. As Dr. Hamon later testified during discovery, Lawler often resorted to interpersonal coping methods like trying to help others or offering them information in order to get close to them when she felt stressed, frightened, or anxious. These behaviors, he explained, signaled her feelings of uncertainty around authority figures, but often were misinterpreted as Lawler being “nosy” and elicited negative feedback from colleagues.

District 150 contends that it reasonably accommodated Lawler’s PTSD by granting her request for a 2-week medical leave of absence. That contention is frivolous. This short-term leave after Lawler’s on-the-job injury and hospital visit did not address her psychologist’s concern that Lawler’s PTSD was aggravated by working with the students having severe behavioral and emotional disorders. A few weeks respite from that environment might have given Lawler some relief while she was away, but according to her psychologist, returning to the same position would impede her ability to control her PTSD. An employee is not entitled to the accommodation of her choice, see Swanson v. Vill. of Flossmoor, 794 F.3d 820, 827 (7th Cir. 2015); Cloe v. City of Indianapolis, 712 F.3d 1171, 1178 (7th Cir. 2013), but if Lawler’s job performance really did decline after she returned to the same position despite wanting a transfer, then the school district surely was on notice that more than a two-week break was needed to give Lawler an opportunity to continue working with PTSD (as she had been doing for years before the school district learned of her impairment). See Bultemeyer v. Fort Wayne Comm. Schs., 100 F.3d 1281, 1285-86 (7th Cir. 1996). And a jury could find from the evidence that Lawler’s need for a transfer easily could have been accommodated, since at least seven openings for special education teachers existed in other schools within District 150 at that time. See 42 U.S.C. § 12111(9)(B) (listing reassignment to vacant position as example of reasonable accommodation); Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998) (ADA may require employer to reassign employee to vacant position if available). What was not an option, however, was for the school district to look the other way until Lawler could be fired for poor performance.

Somewhat antithetical to District 150’s argument that it did accommodate Lawler is it’s contention that it was not required to consider Lawler’s request for a transfer because Lawler never completed the necessary paperwork allegedly given to her by Dunn at their meeting on September 21, 2011. But this response suffers from two fatal flaws. For one, it would require that we view the evidence in the light most favorable to the school district rather than Lawler, who testified at her deposition that Dunn turned her down at their first meeting, not later. And Lawler’s testimony highlights the second flaw: The packet of information supposedly given to Lawler— an exhibit produced during discovery by the school district, not Lawler — relates only to medical leave under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601-2654, not the Rehabilitation Act or the ADA. And neither is there anything in that packet about the steps to request an accommodation.

Moreover, even if District 150 did think that Lawler had changed her mind about the need for an accommodation during her two weeks of medical leave, the school district failed to engage in the interactive process by making that assumption without seeking clarification from Lawler or Dr. Hamon. See Spurling, 739 F.3d at 1061-62 (explaining that employer has not engaged in interactive process if it has not sought clarification from employee or doctor when in. doubt about, employee’s continuing desire for accommodation). Dunn said during her deposition that she interpreted Lawler’s e-mail expressing confidence about returning to work as a representation that she could continue performing her job with the Day Treatment program and no longer sought a transfer. Dunn' similarly testified that she interpreted Dr. Hamon’s note approving Lawler’s return to work without mentioning a transfer or other restrictions as indicating that Lawler .no longer needed an accommodation. But Lawler continued to insist on transferring, and the letter from Dr. Gross found its way into the hands of both Lawler’s direct supervisor and Dunn, the Director of Human Resources, after the school district’s receipt of Lawler’s email and Dr. Hamon’s work release, so even If Lawler had not formally submitted the physician’s letter to them, they were on notice that Lawler still wanted her PTSD accommodated by a classroom transfer. See Miller, 107 F.3d at 486-87 (explaining that employer oh notice that employee suffers disability must make reasonable effort to understand what employee’s neéds are even if not clearly communicated to employer); Bultemeyer, 100 F.3d at 1285 (same). A jury reasonably could conclude that District 150’s failure to seek clarification from Lawler or her doctors caused the breakdown in the interactive process.

Accordingly, we VACATE the district court’s judgment, and REMAND for further proceedings.


source: Caselaw Access Project

author: MANION, Circuit Judge.

license: Public Domain

text:
    Stacy ERNST, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, Defendant-Appellee.
    Nos. 14-3783 15-2030
    United States Court of Appeals, Seventh Circuit.
    Argued February 25, 2016
    Decided September 19, 2016

      Susan P. Malone, Joshua Karsh, Marni Willenson, David A. Borgen, Chicago, IL, Byron Goldstein, Raymond Wendell, William C. Jhaveri-Weeks, Oakland, CA, Charles D. Wysong, for Plaintiffs-Appellants.
    Timothy L. Swabb, Cary E. Donham, Allan T.' Slagel, Suzanne M. Loose, Chicago, IL, for Defendant-Appellee.
    Before BAUER, MANION and KANNE, Circuit Judges.
   MANION, Circuit Judge.

After Stacy Ernst and four other women applied unsuccessfully to work as Chicago paramedics, they brought this Title VII gender-discrimination lawsuit against the City of Chicago. These women were experienced paramedics from public and private providers of emergency medical services; they sought employment as paramedics with the Chicago Fire Department, but they did not apply to firefighting positions. All five women were denied jobs because they failed Chicago’s physical-skills entrance exam.

In district court, this Title VII case was split into two parts. The plaintiffs’ disparate-treatment claims went to a jury trial, in which the district court provided an erroneous jury instruction. Their disparate-impact claims were tried in a separate bench trial. This second group of claims turned largely on whether Chicago’s test was based on a statistically validated study of job-related skills. We remand for a new jury trial on the disparate-treatment claims, reverse the bench triaPs verdict on disparate impact because the physical-skills study was neither reliable nor validated under federal law, and affirm the evidentiary rulings below.

Background

The Chicago Fire Department employs several hundred paramedics. When hiring new paramedics, Chicago has not always tested its applicants’ physical skills. From the 1970s through the year 2000, paramedics were hired without any physical test. The hiring process changed in 2000, however, when Chicago implemented a physical-skills test created for it by Human Performance Systems, Inc. Deborah Ge-bhardt, the president of HPS, led this test-creation process.

Gebhardt had previously created a physical test for the Chicago Fire Department’s entry-level firefighters. That test had a disparate impact on women. The plairitiffs argue that Chicago’s decision to rehire Ge-bhardt for the paramedic test, without taking bids from anyone else, reflects Chicago’s desire to reduce the number of women it hired as paramedics.

In this case, Gebhardt tested volunteer Chicago paramedics. These were incumbent paramedics, working for the Chicago Fire Department. Gebhardt tested these study volunteers on physical skills designed to reflect job-related skills. She tested the paramedics on three “work samples” also designed to reflect job-related skills. Then she compared the results from the skills testing with the results from the work-sample testing. Through this process, Gebhardt selected physical skills that, together,' formed Chicago’s physical-skills entry- exam for paramedic applicants. This was a concurrent validation study, as this opinion will later explain.

' Between 2000 and 2009, nearly 1,100 applicants took Gebhardt’s entrance examination. Among these, 800 were men, and 98% of the male applicants passed. Another 300 were women; 60% of female applicants passed. Stacy Ernst, Dawn Hoard, Katherine Kean, Michelle Lahalih, and Irene Res-Pullano took the test in 2004, as licensed paramedics with experience working in other public fire departments or for private- ambulance services.- In their daily work, they moved patients and did so safely. When they .took the Chicago physical-skills examination, however, they all failed.

After they were denied employment based on their exam results, Ernst and her fellow plaintiffs filed suit. They challenged the skills test as discriminatory; they urged that there was .no evidence of Chicago paramedics ever lacking the physical ability to properly care for their patients. Instead, they argued, the test was implanted to keep women out. Ultimately, their suit had two parts. On their disparate-treatment claims, they asked a jury to find that Chicago had a discriminatory motive against women when Chicago implemented its skills test. On their disparate-impact claims, the plaintiffs argued in a bench trial that improper statistical- methods were used to establish the skills test.

The jury instruction on disparate treatment was vigorously debated before both the magistrate judge and the district judge. The plaintiffs urged that their burden on this disparate-treatment claim was to prove illegal purpose: that Chicago had a discriminatory intent or motive for implementing the skills test. When arguing before the magistrate judge, .Chicago claimed that the plaintiffs had to satisfy a but-for test: that Chicago would have hired the plaintiffs if, all other factors being equal, they were male. In responding to this effort, the magistrate judge said, “That is absolutely not what this case is about at all. At all. And you know it.”

The disparate-treatment jury instruction, labeled Jury Instruction 24 at all times in this case, included this language when the magistrate judge settled the instructions:

Plaintiffs contend the City discriminated against them on the basis of sex-in violation of Title VII of the Civil Rights Act of 1964, .as amended. In order to succeed on this claim, Plaintiffs must prove by a preponderance of the evidence that the City intentionally created or used the physical abilities test for the purpose of excluding females or reducing the number of females who would be hired as paramedics by the Chicago Fire Department. The City-denies that it intentionally created or used the physical abilities test to discriminate against female applicants.
It is not enough for Plaintiffs to prove merely that the City knew the physical abilities test would have an adverse impact on female ápplicants. An adverse impact exists where the rate at which fémale applicants pass the test is substantially less than the rate at which male applicants pass. The parties do not dispute that the test had an adverse impact. - ■

As approved by the magistrate judge, Jury Instruction 24 went on to explain that the plaintiffs should prevail if they prove by a preponderance of the evidence that Chicago “intentionally created or used” the skills test to “exclude or reduce” the women hired as paramedics. If the plaintiffs did not prove this, however, Chicago must prevail. There was no problem with the jury instruction on disparate treatment as established at- this point in the litigation.

Chicago was not done urging the but-for test, however, and the City successfully resurrected its argument before, the district judge. After a hearing on the matter, the district judge issued a written order that ruled for the defense. He stated that “[bjecause this is fan individual action, rather than a class action, evidence of a pattern of practice can only be collateral to evidence of specific discrimination against the plaintiffs].’ ” App. 13 (citing Matthews v. Waukesha Cty., 759 F.3d 821, 829 (7th Cir.2014)) (quotation marks in original). Given this reliance on the individual-action analysis, the district judge struck the original contents of Jury Instruction 24. He inserted the pattern instruction on General Employment Discrimination, so that Instruction 24 now read:

Each Plaintiff claims that she was not hired as a Chicago Fire Department Paramedic because of her gender. To succeed on this claim, each Plaintiff must prove by a preponderance of the evidence that she was not hired by the City of Chicago because of her gender. To determine that a Plaintiff was not hired because of her gender, you must decide that the City would have hired the Plaintiff had she been male but everything else had been the same.

When the casé went to the jury, the jurors expressed confusion over this instruction. After deliberating for 90 minutes, they sent a note to the district court: “Question to the Judge regarding instruction 24. Please provide clarification of the sentence, quote: To determine that a plaintiff .was not hired because of her gender, you must decide that the City would have hired the plaintiff had she been male but everything else had been the same.” While the district court and. parties were discussing this, a second note came out: “The jury cannot deliberate further without a response to our question. May we know what the time [is] for a response?” The district court provided this written response, to which the plaintiffs objected: “Reread all instructions. The sentence you are asking to clarify speaks for itself.” Four minutes later, the jury returned a verdict for the defense.

During the bench trial on disparate impact, the district court found it clear that the plaintiffs had established a disparate impact on women. The burden therefore shifted to Chicago, which had to prove that its physical-skills test was job-related and consistent with business necessity. In adopting Chicago’s proposed conclusions of law, the district court concluded that Ge-bhardt’s validation study satisfied Chicago’s burden, The issues at this point in this trial turned on whether Gebhardt’s study satisfied the .law’s technical standards for validity studies, which appear at 29 C.F.R. § 1607.14(B)(4).. The district court wrote that the “[plaintiffs’ arguments attacking Dr. Gebhardt’s job analysis, validation study under the .criterion method, and the process of determining the 935 passing score are unavailing and are rejected.” Dist. Ct. Docket 604 at 2. Accordingly, the burden shifted back to the plaintiffs, who had to, show that Chicago had rejected a substantially equally valid, but less discriminatory, alternative to the skills test. On this, the district court concluded that the plaintiffs offered assertions without evidence. The district court thus entered judgment for Chicago.

The plaintiffs lost both trials.. They now bring this appeal, which centers on three issues. First, they challenge the disparate-treatment jury instruction that the district judge gave in the jury trial. Second, the bench trial on disparate impact yielded a defense verdict on the statistical methods underlying the skills test, and the plaintiffs challenge those methods. Third, the plaintiffs argue cumulative error from a series of evidentiary rulings. We address these issues in turn.

Discussion

The Civil Rights Acts of 1964 and 1991, known collectively for our purposes as Title VII, prohibit two types of discrimination, Ricci v. DeStefano, 557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). First, Title VII prohibits job-related actions that are motivated by intentional discrimination against employees, based on protected employee statuses - such as race or sex. See id. (quoting 42 U.S.C. § 2000e-2(a)(l)). This is known as disparate treatment. Plaintiffs must prove that an employer had a discriminatory motive for taking a job-related action. Id. During the jury trial in this case, the plaintiffs argued that Chicago adopted its physical-skills entrance exam in an effort to reduce or eliminate the number of women it hired as paramedics.

Second, Title VII prohibits employment practices that have a disproportionately adverse impact on employees with protected characteristics, even if the impact is unintended. See id. This is disparate impact. Employers can defend against a disparate-impact claim by demonstrating that the challenged practice is job-related for the employee’s position and consistent with business necessity. 42 U.S.C. § 2000e-2(k)(l)(A)(i). Even if the employer establishes this, however, an employee can still prevail by proving that the employer has rejected an available alternative job practice that (1) results in a less disparate impact, and (2) serves the employer’s legitimate needs. Ricci, 557 U.S. at 578, 129 S.Ct. 2658 (citing 42 U.S.C. §§ 2000e-2(k)(l)(A)(ii), (C)). Chicago does not dispute that its skills test has an adverse impact on women. As Chicago admits,' the passing rate for women is about 60% of the passing rate for men. The parties dispute, however, whether the test is job-related and consistent with business necessity.

When reviewing claims that a business practice is insufficiently related to a business necessity, we bear in mind that “‘[c]ourts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it.’” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 999, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 578, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)).

A. The Disparate-Treatment Claims: Jury Instruction 24

The plaintiffs begin by appealing the jury instruction on their disparate-treatment claims. We review jury instruction challenges de novo. Lewis v. City of Chi. Police Dep’t, 590 F.3d 427, 433 (7th Cir.2009). District courts have substantial discretion in how to precisely word jury instructions, provided that the final result, read as a whole, is a complete and correct statement of the law. Id. We only reverse when jury instructions are so misleading or confusing that they prejudice a party. Id. Though we strive for common-sense readings of jury instructions, and we avoid nitpicking, we also recognize the importance of getting jury instructions right. See id. Even when a party fails to object to a jury instruction, a mistaken instruction is preserved for plain-error, review if it impacts “substantial rights.” Fed. R. Civ. P. 51(d)(2).

In giving Jury Instruction 24, the district judge relied on our ruling in Matthews v. Waukesha County, 759 F.3d 821 (7th Cir.2014). That case is distinguishable. There, Bernadine Matthews applied for employment as an Economic Support Specialist or Supervisor in Waukesha County, Wisconsin. Because she did not satisfy the minimum requirements for either job, she never received a job offer. Matthews eventually sued Waukesha County for racial discrimination. She argued that she should be allowed to bring a Title VII disparate-treatment claim based, not on evidence of racial discrimination against her in particular, but on statistics indicating that racial discrimination exists against blacks in general. This is the argument we rejected in Matthews, where we explained that she “would need to present evidence indicating that racial discrimination was the employer’s standard operating procedure — the regular rather than unusual practice.” Id. at 829. This is why we stated that “ ‘evidence of a pattern or practice can only be collateral to evidence of specific discrimination against the plaintiff.’ ” Id. In Matthews, the plaintiff failed to present any disparate-treatment claim at all.

In contrast, the plaintiffs in this case argue that Chicago created a new standard operating procedure, with the specific intention of reducing or removing women from among its new paramedic hires. They do not rely on generalized claims of statistical bias against women; instead, they argue that there was no legitimate professional or safety need for Chicago to implement this particular skills test. These arguments place Ernst and her fellow plaintiffs in a different category than Matthews. Whether or not they should win, they at least presented a proper disparate-treatment claim, as indicated by the district court’s denial of summary judgment. At trial, the plaintiffs also presented enough evidence to at least support a correct instruction on disparate treatment.

Here, the jury should have been instructed on the plaintiffs’ burden of proving that Chicago was motivated by anti-female bias, when Chicago created the entrance exam that caused these plaintiffs not to be hired. See Ricci, 557 U.S. at 577, 129 S.Ct. 2658. Instead, jurors were instructed on a different burden, which failed to address Chicago’s motive for creating the skills test: “To determine that a Plaintiff was not hired because of her gender, you must decide that the City would have hired the Plaintiff had she been male but everything else had been the same.” This instruction focused on gender as a factor in the specific decisions not to hire these five plaintiffs, without expressly stating the mandatory question: whether Chicago had an anti-female motivation for creating its skills test. The magistrate judge’s version of Instruction 24 more accurately reflected Title VIPs focus on whether there was a discriminatory motive behind Chicago’s conduct. See id.

This legal error would be enough to establish prejudice, but the record goes a step further. It shows that the jurors saw this instruction as the pivotal issue before them, particularly when they sent a note stating that “[t]he jury cannot deliberate further without a response to our question.” Only four minutes after the district judge instructed them to take Instruction 24 at face value, they returned a defense verdict. Under these circumstances, we must remand the disparate-treatment claims for a new trial'with proper instruction, namely, the magistrate judge’s version of Jury Instruction 24.

B. The Disparate-Impact Claims: Validating the Skills Test

Having addressed the jury instruction on disparate treatment, we turn to disparate impact. The district court found no problem with Gebhardt’s job analysis and validity study. It thus entered a verdict for the defense. Because the disparate-impact rulings were made in a bench trial, we review the district court’s legal conclusions de novo and review factual findings for clear error. Bridgeview Health Care Ctr., Ltd. v. Clark, 816 F.3d 935, 937-38 (7th Cir.2016).

To prove a disparate-impact case, a plaintiff must show an adverse impact on employees with a protected characteristic like gender. Chicago concedes that its physical-skills entrance test has an adverse impact on women. The burden thus shifts to Chicago, which must show that its physical-skills testing is job-related for the employee’s position and consistent with business necessity; 42 U.S.C. § 2000e — 2(k)(l)(A)(i). In this case, Chicago relies on Gebhardt’s validity study to establish that its physical-skills test is job-related. Employers are not required to support their physical-skills tests with formal validation studies, which “show[ ] that particular criteria predict actual on-the-job performance.” Watson, 487 U.S. at 998, 108 S.Ct. 2777. When an employer relies on a validity study, however, federal regulations establish technical standards for these studies. See 29 C.F.R. § 1607.14(B)(4).

l. A technical explanation

Before we analyze the federal regulations on validity studies, some technical explanation may be useful. We begin this section by discussing the terms used in federal regulations and Gebhardt’s validity study, in an effort to help readers navigate the complex record we are examining.

Validity is the extent to which a study accurately measures what it sets out to measure. In this case, Gebhardt’s study sought to measure the physical skills of incumbent Chicago paramedics. Her study was valid to the extent that it accurately measured their physical skills.

The type of validity study that Gebhardt chose was a criterion-related validity study. Researchers decide what criteria they use. Here, Gebhardt solicited job-performance ratings from the volunteer paramedics’ supervisors and peers. This was one set of criteria. In addition, Ge-bhardt created work samples, which were supposed to represent on-the-job skills. The work-sample scores were another set of criteria.

A criterion-related validity study measures a study’s validity by comparing the assessment-tool results with the criteria. In this case, the assessment tool is a test of physical skills, Gebhardt would correlate the results of the assessment tool (the skills-test scores) with the results of the criteria (either the job-performance ratings or the work-sample scores). If there is a strong correlation, the assessment tool is validated. From a validated study, Ge-bhardt could conclude that her skills tests accurately assess test-takers for whether they have the physical skills that paramedics learn on the job. In contrast, if there is a weak correlation or no correlation at all, the assessment tool is not validated. From a study that is not validated, Gebhardt would not conclude that her skills testing could assess actual skills learned on the job.

There are two types of criterion-based validity studies: a researcher can conduct a predictive validity study or a concurrent validity study. The predictive approach may be somewhat stronger, as suggested by the fact that federal regulations require courts to conduct additional scrutiny into concurrent validity studies. See 29 C.F.R. § 1607.14(B)(4).

In statistical terms, the difference between predictive and concurrent validity is simply a matter of timeline. College entrance exams like the SAT are examples of predictive studies. In this model, the SAT is administered to high school students, the students who took the SAT attend college, and then their college GPAs are examined. If there is a significant correlation between the students’ SAT scores and their college GPAs, the SAT test is considered valid. In this sense, the SAT scores are tested against the valid college GPAs.

Here, Gebhardt chose to conduct a concurrent validity study when she tested Chicago’s volunteer paramedics and created a physical entrance exam. In a concurrent study, the researcher takes two measures at the same time. The researcher then uses one measure (which is known to be valid) to validate the other measure (which needs to be validated).

First, Gebhardt measured the volunteers’ physical skills by having them perform physical skills that she determined were necessary to the paramedic job: a modified stair-climb, leg lifts, arm-strength tests, and other tests. Gebhardt’s volunteer paramedics had higher scores than the scores of other paramedics in both public-sector and private-sector jobs. The men in her study could handle an average of 281.9 pounds in leg-lift tests, for example, while the men in a study of several hundred paramedics could handle an average of 245.11 pounds in leg-lift tests. Ge-bhardt stated that this disparity between volunteers in her study and volunteers in other studies was “especially” true between the tested female paramedics. In an effort to soften the Chicago paramedics’ unusually high .scores, Gebhardt added scores from another physical test of New York City paramedics. She only used the New York .City data, however, when setting a passing score. She did not use it to validate the Chicago study.

Second, Gebhardt also created a rating instrument that she distributed to the volunteers’ supervisors and peers. Because these volunteers were incumbent Chicago paramedics, she could obtain on-the-job assessments of these volunteers’ abilities from supervisors and peers who also worked in the Chicago Fire Department. On their own, these ratings would be a valid assessment of the volunteers’ job skills. Thus, Gebhardt could compare these supervisor and peer ratings with her skills tests. If the ratings and the test scores yielded comparable assessments of the volunteer paramedics, then Gebhardt could conclude that her skills tests were validated.

The job-performance ratings and the skills-testing scores, however, yielded significantly different assessments of the volunteer paramedics’ on-the-job abilities. Based on supervisor and peer ratings, female paramedics’ performance was not far from male paramedics’ performance: the average female rating was 90% to 98% of the average male rating. If the skills tests were validated by the job-performance ratings, they would have yielded similar results, with no great discrepancy between female and male skills scores. But in Ge-bhardt’s skills test, women performed far less well than men. On the leg-lift test, for example, the average female score was 66.4% of the average male score. This discrepancy would appear to actually invalidate the physical-skills tests.

Rather than setting aside her original skills tests, and creating a new set of tests that might better assess paramedic job skills, Gebhardt provided rationales for setting aside the job-performance ratings. Gebhardt received ratings for 46 out of 52 volunteer participants. In a study-planning letter to the Chicago Fire Department, Gebhardt’s ■ company had stated that a minimum of 110 participants would be necessary to validate this study. Though she had been willing to drop from 110 volunteers to 52, she concluded that she could not go from 52 to 46. Further, when Ge-bhardt set aside the supervisor and peer ratings, she replaced them with work-sample scores, as this opinion will soon explain. But when Gebhardt tested the reliability of her work samples, she had only 7 volunteers in the stretcher lift, 17 volunteers in the stair-chair'push, and 18 volunteers in the lift and carry. For work samples, she was comfortable relying on a far smaller number than 46 volunteers. This calls into question whether going down to 46 volunteers, with the supervisor and peer ratings, was really the problem in the researcher’s mind.

In addition, Gebhardt said that she would have had to drop the modified stair-climb component of her skills test if she accepted the supervisor and peer ratings, and women performed better on this stair-climb than on other skills. This created the appearance of favoring women, by preserving an aspect of the test on which they did well. But because the supervisor and peer ratings also did not validate other skills tests, she would also have had to drop skill tests on which women performed worse than men. The leg-lift, for example, was not validated by the job-performance ratings. The average female score on that skills test was 66.4% of the average male score. Yet Gebhardt ultimately included this skill on Chicago’s entrance exam. Thus, though Chicago only claims that Ge-bhardt dropped the job-performance ratings in order to preserve skills testing on which women performed well, the record conflicts with that narrow version of the facts.

Regardless of the reasons for setting aside the job-performance ratings, Ge-bhardt still needed a concurrent measure to validate her skills tests. Thus, she com-pai-ed the results of the skills tests with the results of her work-sample tests. She designed three work samples with input from the Chicago Fire Department: a lift and carry, a stair-chair push, and a stretcher lift. These work samples were intended to reflect skills that Chicago paramedics learn on the job.

In the lift and carry, a volunteer lifted a piece of equipment, carried it up a set of stairs, put it down, lifted another piece of equipment, carried that down the stairs, and then put that down. This required five timed cycles, with faster times resulting in better scores. In the stair-chair push, the volunteer navigated a stair chair over a ramp, with a dummy seated in the stair chair. Again, faster times resulted in higher scores. In the stretcher lift, volunteers lifted a stimulated stretcher to an arm-locked position, held it for 20 seconds, rested for five seconds, and repeated. The stretcher weighed 90 pounds with the first lift, and 10 pounds was added each time, up to a maximum of 220 pounds. This test continued until the volunteer completed 13 cycles or could no longer lift the stretcher. Volunteers did not receive higher scores for performing this more quickly. Instead, .scores were based on two measures: cycles completed and weight lifted.

When Gebhardt examined the correlation between the skills tests and the three work samples, she found that three of the skills were validated: the modified stair-climb, arm-endurance test, and leg lift. The correlation between these three skills and the three work samples exceeded the .01 level of statistical significance. This means there was a 99% probability that the results would repeat if they were tested again — a statistically rigorous result that exceeds the .05 level required by law. See 29 C.F.R. § 607.14(B)(5).

In addition to testing the validity of her study, Gebhardt tested the reliability of her study. See 29 C.F.R. § 1607.14(C)(5). An assessment tool is considered reliable if it produces consistent results over time. Gebhardt chose the 'test-retest reliability approach, in which a researcher administers a test and then readministers it. If there is a strong correlation between the test and retest, the assessment tool is considered reliable. In technical terms, this process yields what is called a reliability coefficient: a number between 0 and 1. If the reliability coefficient is 1, there is a perfect correlation between the test and the retest. This suggests that the assessment tool is highly reliable because it produces highly consistent results over time. Perfectly repeating results, however, are unusual. If the reliability coefficient is 0, there is no correlation between the test and the retest. This would indicate that the assessment tool is not reliable at all.

In this case, Gebhardt provided test-retest reliability results for the lift and carry (measured by seconds), the stair-chair push (measured by seconds), the stretcher lift (measured by weight), and the stretcher lift again (measured by cycles completed). For the lift and carry, the reliability coefficient was a mere 0.503, indicating about a 50/50 chance that this test is reliable. For the stair-chair push, the reliability coefficient was a moderate 0.743. For the stretcher lift as measured by weight, the reliability coefficient was a robust 0.982. And for the stretcher lift as measured by cycles, the reliability coefficient was 0.978, also indicating strong reliability.

Based on this work by Gebhardt, Chicago implemented a physical entrance exam with three components: the modified stair-climb, arm-endurance test, and leg lift. The passing score was set with this formula, which favored the modified stair-climb on which women did well: (7 • modified stair-climb score) + (2 • arm-endurance score) + (1 • leg-lift score).

2. An analysis of the validity study

With that technical explanation, we turn to our analysis. We consider whether the district court was correct in finding that Gebhardt’s job analysis and physical-skills study satisfied the express federal regulations on validity studies.

In the Title VII context, a validity study examines whether an employer is using an appropriate selection procedure, like Chicago’s physical entrance examination, in its hiring process. See 29 C.F.R. § 1607.5(B). Federal regulations require that the validity study must establish specific criteria, which empirically demonstrate that the selection procedure predicts or significantly correlates with important job-performance elements. 29 C.F.R. § 1607.5(B). In this case, the specific criteria are the physical skills that Gebhardt tested against work samples, to see whether the skills could be validated as job-related skills. She ultimately found three valid.

The technical standards for validity studies are set forth in 29 C.F.R. § 1607.14(B)(4), This section requires that the volunteers in a study’s sample population should, as far as possible, “be representative of the candidates normally available in the relevant labor market for the job.” 29 C.F.R. § 1607.14(B)(4). Representativeness is a fact-sensitive inquiry.

Section 1607.14(B)(4) provides two specific guidelines for determining whether a sample population is representative. First, we must consider whether the individuals in the sample population (here, the volunteer incumbent paramedics) are representative of individuals who are normally available in the Chicago paramedic market. As far as possible, the sample population should also include the races, sexes, and ethnic groups normally available in that job market.

Second, in a concurrent validity study like this one, we must examine whether the test focuses on specific skills or knowledge that are the “primary” focus of skills or knowledge that Chicago paramedics learn on the job. 29 C.F.R. § 1607.14(B)(4). We note that Title VII regulations do not provide for employers to implement a general physical fitness test. Instead, Title VTI regulations look for a physical skills test. These skills must specifically relate to skills that Chicago paramedics learn in their jobs. Of course, physical skills may bear a close relationship to physical fitness, but the entry exam may not merely examine generalized strength.

With these federal regulations on validity studies, we first examine whether the volunteer paramedics in Chicago’s study are representative of individuals who are normally available in the Chicago job market. See 29 C.F.R. § 1607.14(B)(4). The plaintiffs object to the fact that Gebhardt asked existing Chicago paramedics to volunteer, rather than randomly selecting study participants. This self-selection presr ents an obvious concern: when an employer asks its employees to volunteer for testing, the strongest employees are most likely to volunteer. Any study results may thus be skewed, instead of representing the general population. Yet as Gebhardt explained, people cannot be forced into studies. There are ways to see that, even with volunteer participants, a study offers legitimate insights into the general population. On its own, the fact that Gebhardt worked with volunteers is not a basis for setting aside her study results. ■

By Gebhardt’s own testimony, however, these volunteer paramedics did not represent the skill-set in the general population of Chicago paramedics. Gebhardt testified that the Chicago volunteers performed better than public-sector and private-sector paramedics normally perform. In her formal report on this study, Gebhardt forthrightly stated that “the Chicago- EMS personnel were found to be above average. This was especially true for the women.”

Because she was concerned that the' results of her Chicago study might not be representative, she combined her data on 52 Chicago paramedics with a comparable data-set on 87 New York City paramedics. As Gebhardt’s study report stated, and Chicago affirms in its brief, she did this “[t]o avoid artificially inflating the passing score.” Appellee Br. at 10. In other words, the New York paramedics presumably had lower scores than the Chicago paramedics, which helped draw the average score toward a more normal performance level. For the combined Chicago and New York City scores to result in a truly normal or average score, however, the New York City paramedics’ scores would have to be significantly lower than normal, There is no evidence — nor would we expect — that the New York City paramedics perform at a lower skill level than paramedics who are “normally available in the [Chicago] labor market.” 29 C.F.R. § 607.14(B)(4).

With 52 Chicago paramedics and 87 New York City paramedics, Gebhardt had a total sample population of 139 paramedics. And with this small sample size, the 52 Chicago paramedics constituted 37% of the total sample population. About four in ten paramedics, in the overall sample population, were still from Chicago. This is still a sufficiently high percentage for Chicago paramedics to pull up the average scores and skew the overall results. Chicago does not explain why it believes that, by adding 87 New York scores, the problem of abnormally high scores was resolved. Perhaps this is a problem that could be resolved by comparing the combined Chicago and New York results with the studies that Ge-bhardt considered, when she concluded that the Chicago volunteer paramedics had abnormally high scores, and showing that the combined results are comparable.- But the record does not indicate that even the combined sample population represents the general paramedic population.

Second, because this is a concurrent validity study, 29 C.F.R. § 1607.14(B)(4) requires us to examine whether the test focuses on primary skills learned on the job. In this case, the entrance exam tests three skills: the modified stair-climb, arm endurance, and leg lift. These skills were validated by correlating each skill' with all three work samples: the lift and carry, stair-chair push, and stretcher' lift. There is a statistically significant correlation between these physical skills and these work samples. In this, the study is fine.

On the issue of reliability, however, the lift and carry poses a problem its reliability score is only 0.503. That is a 50/50 chance of reliability. Federal regulations direct that reliability, in validity studies like this one, “should be a matter of concern to the .user.” - 29 C.F.R. § 1607.14(B)(5). This is particularly true when the reliability of this lift and carry is equivalent to the proverbial coin toss: heads, it is reliable; tails, it isn’t. Further, there was no apparent effort to separate the lift and carry from the rest of the study. Because each of the three skills (modified stair-climb, arm endurance, and leg lift) was validated by correlating it against all three work samples (lift and carry, stair-chair push, and stretcher lift), the unreliability of this lift and carry undermines all three skills that Chicago tests in its physical entrance exam. “All tests must be statistically examined for evidence of reliability before the test developer can establish the validity of the test.” Gillespie v. Wisconsin, 771 F.2d 1035, 1041 (7th Cir.1985). Given the lack of reliability in her study, the test developer in this case cannot establish the validity of her study.

Even if reliability was fully established in this case, validity would be a problem. The plaintiffs legitimately question whether the work samples themselves are a valid measure of job skills. The problem here is that Chicago used the work-sample tests to validate the skills tests — without ever validating the work samples. As a result, we cannot conclude that these work samples reflect “the primary focus of’ paramedic skills learned on the job. 29 C.F.R. § 1607.14(B)(4).

Chicago “would have this court And job-relatedness on the basis of a high correlation between the results of two separate testing practices, neither of which by itself has been validated according to accepted methods. We cannot accept this flawed argument.” Guardians Ass’n of N.Y.C. Police Dep’t, Inc. v. Civil Serv. Comm’n of the City of New York, 633 F.2d 232, 244 (2d Cir.1980). In this case, Chicago created a skills test and a work-sample test, found a strong correlation between the skills test and the work-sample test, and thus concluded that the skills test is a good measure of job-related skills. As the plaintiffs argue, this is a statistical form of self-affirmation. There is no evidence that the work-sample test, which Chicago used to validate the. skills test, is a proper validation of job skills. On the contrary, we question whether the work samples actually test the skills that Chicago paramedics learn on the job, as expressly required by the language of Section 1607.14(B)(4).

Gebhardt surveyed Chicago paramedics about on-the-job situations when creating her study. Paramedics indicated that, when getting to patients, they carry equipment between 10-and 100 feet about 73% of the time. If they carry equipment upstairs, they climb one or two floors about half the time, and climb three or four floors about a third of the time.

Paramedics reported that their patients weighed less than 150 pounds about 24% of the time. Patients weighed 160 to 200 pounds about 40% of the time; 210 to 250 pounds about another 22% of the time; and 260 or more pounds about 14% of the time. Chicago paramedics further reported that, if a patient had to be carried on paramedic equipment, the distance traveled was less than 100 feet about 80% of the time.

Gebhardt also found that, when patients were moved into ambulances, they were in wheeled stretchers about 27% of the time and in stair chairs about 68% of the time. On the record, the use of stair chairs in Chicago appears limited. According to Ge-bhardt’s findings, stair chairs' are used for transporting patients into ambulances, usually through the side door. She did not indicate that they were ever used past this point. According to the plaintiffs’ evidence at trial, “they don’t have ramps at [Chicago] hospitals, and you never push a person into a hospital on a stair chair.” See Dist. Ct. Docket 554-4 at 665; see also Dist. Ct. Docket 557-1 at 226 (“stair chairs are not to be used to transport patients from the ambulance to the hospital' under the relevant EMS System Policies and Procedures” and- “[p]atients need to be on the stretcher or sometimes secured on the ambulance bench”).

Given these actual on-the-job skills, it is difficult to see how all three work samples test job-related skills, much less skills that are a “primary” focus of skills that Chicago paramedics learn on the job. See 29 C.F.R. § 1607.14(B)(4). We address the work samples in turn, by comparing the work-sample skills with the skills that paramedics actually use.

To begin with, the lift and carry seems reasonably job-related: it tests paramedics’ ability to carry equipment up and down stairs. The plaintiffs object to the timed nature of this test. In the context of disparate-impact litigation, the Eighth Circuit has cast doubt on the value of timed physical-skills testing; As it said, “where hiring is contingent upon test performance, applicants tend to work as fast as possible during .the test in order .to outperform the competition.” E.E.O.C. v. Dial Corp., 469 F.3d 785, 739, 742-43. (8th Cir.2006). And as Gebhardt’s. pwn study, report recognized, “physical test cutoff scores should be set at the minimum acceptable level,” not at the maximum level, because the goal is to identify people with sufficient physical skills. Further, faster performance is-not always the most careful performance. We can see where some speed, though not excessive speed, may be job-related for paramedics who answer time-sensitive emergency calls. But in staying faithful to the record, we do not have the information necessary to analyze and reach a conclusion' on the appropriateness of this timed test. Regardless of how appropriate it was to time the lift and carry, this work sample did not prove reliable. And an unreliable assessment tool cannot be validated. Gillespie, 771 F.2d at 1041.

Next, the stair-chair work sample focuses on pushing a stair chair through a course and over a ramp. The plaintiffs also object to the timed nature of this test, but again, we lack the information needed to reach a conclusion on timing. We do recognize that stair chairs are, as their name suggests, designed to be carried up and down stairwells. The record indicates that there are no ramps leading into Chicago hospitals. Even if there were ramps, Chicago paramedics may not transport patients into hospitals using stair chairs. The record does not indicate that the stair chairs in the work sample were transported for the same distances as stair chairs in real paramedic situations, which casts doubt on this work sample, too. We do not conclude, however, that the stair-chair work sample is necessarily unrelated to on-the-job skills.

Moving to the final work sample, we must conclude that the stretcher lift does not resemble skills learned on the job. Real paramedics raise a stretcher and then move. We question why paramedics in the work sample have their arms “locked.” Regardless, when paramedics transport a real patient, they do not cycle the patients laden stretcher up and down, and the record shows that they typically travel less than 100 feet. It is hard to imagine paramedics requiring nearly four-and-a-half minutes to cross 100 feet. Yet the record indicates that paramedics in the stretcher-lift sample had a different task: they had to complete 13 cycles up and down, which requires a total of 4 minutes and 20 seconds to complete, even with rest times omitted.

Further, stretchers are usually carried by at least two paramedics and/or wheeled, while the stretcher-lift work sample requires one paramedic to carry all the weight alone. At the beginning of the stretcher-lift work sample, paramedics are lifting 90 pounds alone. This is the equivalent of carrying a 180-pound patient in tandem. By the end of this lift work sample, the paramedic is lifting 220 pounds alone. This is the equivalent of carrying a 440-pound patient in tandem, immediately after carrying 12 other patients who were increasingly heavy. There may be situations when paramedics transport more than a dozen patients in rapid succession, where most of the patients are atypically heavy individuals, but this is not within the scope of “primary” EMS skills. See 29 C.F.R. § 607.14(B)(4). For this work sample, the simulated job skills and real job skills are different in description.

In comparing the skills that Chicago paramedics learn on the job with the skills that Gebhardt’s three work samples require, we must conclude that these are two different sets of skills. Even if they were the same, the work-sample skills are more taxing than real on-the-job skills. Gebhardt has test subjects cycling abnormally heavy stretchers up and down for 4 minutes and 20 seconds, for example, even with rest times omitted. In contrast, paramedics usually transport relatively lighter stretchers across a distance of 100 feet or less, which should, require substantially less than 4 minutes. And as one of our sister circuits has affirmed, plaintiffs should prevail on their disparate-treatment claim when a physical-skills entrance exam is “significantly more difficult than the actual job workers performed at the plant.” Dial, 469 F.3d at 739, 742-43. The difficulty of these work samples also undermines Chicago’s argument that these work samples represent real skills that Chicago paramedics learn on the job.

In this case, at least two out of three work samples are not valid. The validity of the three skills that are tested in Chicago’s entrance examination, however, depends on all three work samples being valid. This undermines the entire physical-skills entrance test that Chicago administers.

The physical entrance exam that resulted from this study of volunteer paramedics risks cementing unfairness into Chicago’s job-application process. Unfairness is defined this way: when women characteristically obtain lower scores on the physical entrance exam than men, and the score differences “are not reflected in differences in a measure of job performance,” the entrance exam is unfair. See 29 C.F.R. § 1607.14(B)(8)(a). We recognize that, in itself, there is nothing unfair about women characteristically obtaining lower physical-skills scores than men. But the law clearly requires that this difference in score must correlate with a difference in job performance.

To guard against this unfairness, the law requires that the physical' exam must validly test job-related skills. We recognize that, if men‘and women have adequate physical skills- together, patients can benefit from coed paramedic teams. The minimum requirement is adequacy, not superiority. See Lanning v. Se. Pa. Transp. Auth., 308 F.3d 286, 287 (3d Cir.2002) (affirming that, in a disparate-impact claim, “a discriminatory cutoff score on an entry level employment examination must be shown to measure the minimum qualifications necessary for. successful performance of the job”). Perhaps mixed-gender teams could offer: patients a more diverse combination of physical and psychological care than single-gender teams. A female paramedic might fit into a space where a male paramedic does not; a female victim might be helped by having a female paramedic on the team. And in this case, the' validated testing of job-related skills simply is not there: it is not enough to show a strong correlation between two tests that Chicago created concurrently. To validate the other test, at least one test must itself be a valid measure of job skills.

Accordingly, on this detailed review of the record, we conclude that there is clear error in the factual conclusions reached below. Under the federal requirements for validity studies articulated in -29 C.F.R. § 1607.14(B)(4), clear problems arise with the job analysis, the reliability of this validity study, and the validation of Chicago’s validity study. Chicago failed to establish that its physical-skills . entrance test reflects “‘important elements of job performance.’ ” Dial, 469 F.3d at 743 (quoting 29 C.F.R. § 607i5(B)). And this lack of connection between real job skills and tested job skills is, in the end, fatal to Chicago’s case. Thus, the plaintiffs should have prevailed on their Title VII disparate-impact claims.

C. Disparate Treatment and Impact: Evidentiary Rulings

Finally, the defendants object to evidentiary rulings made below. We address these briefly, bearing in mind that the standard of review for evidentiary rulings is abuse of discretion, and we affirm the evidentiary rulings appealed here. See Bradley v. Work, 154 F.3d 704, 708-09 (7th Cir.1998).

First, during the disparate-treatment trial, the district court admitted hand-written committee notes under the business-records exception. These notes were written by Deputy Fire Commissioner Derrick Jackson during a Chicago Fire Department committee discussion about physical-injuries that Chicago’s paramedics sustained on the job. First Deputy Commissioner ■ Charles Stewart authenticated the handwriting as Jackson’s. He further testified that, as part of its regular business practices, the Chicago Fire Department maintains committee-meeting notes like Jackson’s notes.

Meeting minutes properly fall within the business-records ’exception. United States v. Borrasi, 639 F.3d 774, 779 (7th Cir.2011). Federal Rule of Evidence 803(6) requires, among other things, that these notes must be made during or near the time of the meeting by someone with knowledge. The notes must also be maintained in the regular course of business. The disputed evidence satisfies Rule 803’s requirements. The plaintiffs rely on United States v. Borrasi, however, where we excluded evidence of a committee report that was discussed in committee minutes. See id. at 779-80.

In Borrasi, we concluded that “[t]hose reports and any statements therdfrom are hearsay, as each comprises statements written by [individuals] not testifying before the court that [a party] wished to introduce for the truth of the matters asserted.” Id. Borrasi is distinguishable. There, the moving party sought to admit a report-through the committee notes. Here, Chicago sought to admit evidence of what was discussed in the committee meeting itSélf. This'was proper.

Though the plaintiffs object to Chicago admitting the evidence through Stewart, saying that Stewart never attended the meeting in question and could not be cross-examined about the meeting, Stewart’s role was simply to authenticate the business-record evidence. If the plaintiffs wished to cross-examine Jackson, they could have subpoenaed him as a witness. The district court did not abuse its discretion. ...

Second, during the disparate-treatment trial, the plaintiffs sought to admit evidence that Gebhardt had previously engaged in conduct that reduced the number of jobs for which women qualified. The district court would not let them offer evidence that Gebhardt’s work adversely affected women. It allowed Gebhardt to provide this compelling testimony, however, regarding the purpose of her entire career:

Question: What is the purpose in your mind of your entire career with respect to developing and validating physical abilities tests for physically demanding jobs?
Answer: Well, it’s to actually give women a shot at a physically demanding job. And it occurred when I first started doing this, I was doing a project for AT&T. And women wanted to work in what’s called the outside craft positions. They were working clerical, and the pay was a lot better for outside craft.
One of the things I saw was that the women could do the jobs.And I also saw in my early years that employers said: Oh, well we want to get women into these jobs.
So what happens is they just put them in the jobs.the men were like: Oh, it’s nice you’re here.
And then they became resentful of the fact that some of the women — not all, but some — could not handle the physical demands.
So what we had was when we started putting in the physical abilities tests, we found that one, the women could meet the physical demands and they were much more accepted by their peer— male peers when they could actually perform the tasks. And that was a good thing because in the early years, they got a bad attitude towards it.
So to suggest that I would discriminate against women is absurd because I’ve spent most of my life trying to make sure that women are successful in these jobs.

Dist. Ct. Docket 554-9 at 26-27. With the defense offering this evidence about the purpose of Gebhardt’s “entire career,” the plaintiffs should also be allowed to offer evidence that rebuts her testimony. Only permitting evidence on one side of this equation would be unfairly prejudicial. The plaintiffs do not provide specific explanations, however, of what they tried to admit into evidence and why the district court ruled against them. As a result, the objection is undeveloped and is thus waived for purposes of the first jury trial.

Third, the plaintiffs sought to admit evidence that the Chicago Fire Department offers more pretest training to its firefighter applicants than its paramedic applicants. Once again, however, the plaintiffs offer a generalized objection. They do not claim that the two tests are comparable. Nor do they explain why the Chicago Fire Department should approach two tests in the same way. On the face of the matter, it' is reasonable for an employer to have different hiring practices for different positions. Again, this objection is undeveloped, and we find that it is waived for the first jury trial.

The remaining objections appear to be against evidentiary rulings made during the bench trial on disparate impact. Because we conclude that the concurrent validity study was not validated, we do not address these rulings.

Conclusion

The disparate-treatment claims are REMANDED for a new trial, with directions to read the original version of Jury Instruction 24. The disparate-impact trial verdict is REVERSED, with instructions to enter judgment in the plaintiffs’ favor. Finally, the evidentiary rulings below are AFFIRMED.

      . The factual statements in this opinion are drawn from the record presented on appeal; they should not be read as binding factual findings when the plaintiffs’ disparate-treatment claim is retried before a jury.

      . We recognize that the court is not a statistical expert, yet we must also acknowledge that the law mandates statistical discussion in this case. We therefore note that the terms described here are drawn from federal regulations, the parties' briefs, trial testimony, Ge- ■ bhardt’s statistical report as it appears in the record, and other studies. Our use of technical terms is also consistent with the use of these terms in previously issued court rulings. See, e.g., Watson, 487 U.S. at 998, 108 S.Ct. 2777 ("formal ‘validation studies’ show[ ] that particular criteria predict actual on-the-job performance.”); Guardians, 633 F.2d at 244 (“Criterion-related validity studies correlate test scores with job performance.”).

      , The remaining skills were not validated by the work samples. Gebhardt s.et those skills aside.

      . These criteria are deemed "relevant to the extent that they represent critical or important job duties, work behaviors or work outcomes as developed from the review of job information.” 29 C.F.R. § 1607.5(B)(2). The possibility of bias must also be considered when choosing and applying these criteria. 29 C.F.R. § 1607.5(B)(2).

      . These are not the only legal issues that Section 1607.14(B)(4) requires courts to consider, but we conclude that these are the only issues that apply in the case before us. Ge-bhardt added scores from a New York City paramedic study to the scores from her Chicago paramedic study. If she used the New Xork data to help validate the Chicago data, we would be required to conduct an additional inquiry into questions like whether the samples are comparable in terms of actual jobs performed. 29 C.F.R. § 1607.14(B)(4), There is no indication, however, that she used the New York data to validate the Chicago study results. Instead, it appears that she only combined the New York and Chicago data for the purpose of setting a passing score on the final physical-skills test. And we do not reach the question of whether Gebhardt set an appropriate passing score. Thus, we do not conduct additional inquiries into the other issues raised by Section 1607.14(B)(4), such as actual jobs performed in New York.

      . The researcher's method of selecting volunteers will have significant implications for how representative a sample population is, and the record does not address how Ge-bhardt’s volunteers were chosen, but human participants must be willing participants in any event, This is a principle to which the sciences, social and otherwise, have hewn closely since the Belmont Report was issued in 1979, The Belmont Report was largely a response to reports that people were abused in biomedical experiments during the Second World War. It established three major principles for studying humans: respect for persons (protecting individual autonomy), beneficence (promoting individual wellbeing), and justice (rendering what individuals deserve). Under these guidelines, when a person participating in a study is capable of giving informed consent, the scientist Conducting the experiment ' should not proceed without it. See Nat'l Comm’n for the Protection of Human Subjects of Biomedical & Behavioral Research, The Belmont Report (Apr. 18, 1979), http:// www.hhs.gov/ohrp/fegulations-and-policy/ belmont-report/index.html#xbasic.

      . The plaintiffs also challenge the passing score established for this skills test, by arguing that there is no appropriate statistical basis’ for setting the cut-off score. Because this particular test is not validated, however, we do not address the statistics behind the passing score.
      Chicago did not carry its burden of proof on the test-validation issue, so we also do not reach the parties' arguments regarding less-discriminatory alternatives to the test.


author: POSNER, Circuit Judge.

text:
    Michael HUGHES, Plaintiff-Appellant, v. James DIMAS, et al., DefendantsAppellees.
    No. 16-1818
    United States Court of Appeals, Seventh Circuit.
    Submitted June 24, 2016
    Decided September 19, 2016
    Michael Hughes, Rushville, IL, Pro Se.
    Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.
   POSNER, Circuit Judge.

An Illinois state court ruled that Michael Hughes was a sexually violent person who suffers from a mental disorder that creates a substantial risk that unless confined he is apt to commit further sexual violence. And so the court ordered him to be civilly committed, pursuant to the state’s Sexually Violent Persons Commitment Act, 725 ILCS 207/1-99, in the Rushville Treatment and Detention Facility, a state facility where he is to remain “for control, care and treatment” until he “is no longer a sexually violent person.” See id. 207/40. In this suit under 42 U.S.C. § 1983, Hughes claims that the state has improperly curtailed his liberty, in violation of the Fourteenth Amendment, by employing staff at Rushville who are unable to provide him with the care and treatment without which he’ll never be eligible for release. Because the Department of Human Services, which operates Rushville, has contracted with Liberty Healthcare Corporation to provide sex-offender treatment to detainees there, Hughes, names as defendants Liberty Healthcare along with eleven persons, including James Dimas, the Secretáry of the Department of Human Services, Rush-ville’s clinical director, and five therapists employed by the facility.

The Supreme Court has suggested that a civilly committed sex offender is constitutionally entitled to “immediate release upon a showing that [he] is no longer dangerous or mentally impaired.” Kansas v. Hendricks, 521 U.S. 346, 368-69, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); see also Allen v. Illinois, 478 U.S. 364, 369-74, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986). But who is to make that showing? Illinois allows only persons licensed under the Sex Offender Evaluation, and Treatment Provider Act to treat Rushville’s civil detainees and determine whether and when they’ve improved to the point where they can be released without danger to the public. 225 ILCS 109/40; 725 ILCS 207/55(a)-(b). The Act imposes civil and criminal penalties on unlicensed persons who attempt to provide sex-offender treatment. 225 ILCS 109/90,160.

The district judge dismissed Hughes’ complaint primarily on the grounds that, the Constitution doesn’t require Rushville to comply with state statutes and that anyway a state statute is not enforceable in federal court. But this reasoning misconceives the basis of the suit. As indicated in the cases cited earlier, the Supreme Court understands the Fourteenth Amendment to require that civil detainees receive treatment for the disorders that led to their confinement and be released when they’ve improved enough no longer to be dangerous. Illinois has decided to permit only persons licensed under the state’s Sex Offender Evaluation and Treatment Provider Act to make that evaluation. 225 ILCS 109/40; 725 ILCS 207/55(a)-(b). That decision can be understood as a response to doubts increasingly raised about the constitutional adequacy of the treatment provided to civilly detained sex offenders. See Lucy Massopust & Raina Borrelli, “ ‘A Perfect Storm’: Minnesota’s Sex Offender Program — More Than Twenty Years Without Successful Reintegration,” 41 William Mitchell Law Review 706 (2015); Douglas G. Smith, “The Constitutionality of Civil Commitment and the Requirement of Adequate Treatment,” 49 Boston College Law Review 1383 (2008); Karsjens v. Jesson, 109 F.Supp.3d 1139, 1172 (D. Minn. 2015). But the bare record of the district court proceeding leaves unresolved whether Rushville is providing the plaintiff (and other'persons detained at the facility) with treatment by licensed professionals who alone have the authority to determine the detainees’ right to be released. We note for example that Liberty Healthcare Corporation, which furnishes the clinical treatment personnel at Rushville, does not require that all of them be licensed. See Liberty Healthcare Corporation, “Counselor — sex offender treatment • program,” www.glassdoor.com/job-listing/counselor-sex-offender-treatment-program-liberty-healthcare-JV_IC112 8554_KO0,40_KE41,59.htm?jl=1942076790 (visited Sept.- 16, 2016). The suit having been dismissed prematurely, the judgment of the district court is

REVERSED AND REMANDED.


text:
    Kevin A. WILLIAMS, Plaintiff-Appellant, v. Sharon HANSEN, et al., Defendants-Appellees.
    No. 15-2236
    United States Court of Appeals, Seventh Circuit.
    Submitted August 18, 2016
    Decided September 20, 2016
    Rehearing Denied October 17, 2016
    Kevin A. Williams, Pro Se.
    Timothy M. Maggio, Attorney, Office of the Attorney General, Chicago, IL, for Defendants-Appellees.

      Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
   POSNER, Circuit Judge.

The plaintiff, Kevin Williams, who is serving a 65-year prison sentence for murder and for concealing the murder and is incarcerated at Pontiac Correctional Center, an Illinois maximum-security state prison, ordered a death certificate from the county clerk’s office — the death certificate of the woman, Traci Todd, whom he’d murdered. Members of the prison’s staff confiscated the certificate (which had arrived at the prison accompanied by an unsigned note that read: “There is a place in hell waiting for you [i.e., Williams] as you must know you will reap what you have sowed!” (the accompanying note was also confiscated, although there is no indication that Williams wants it). The reason given for confiscating the certificate was that “Williams could not have the death certificate because it posed a threat to the safety and security of the institution and would negatively impact Inmate Williams’ rehabilitation.”

The confiscation precipitated this suit by Williams under 42 U.S.C. § 1983 against the staff members involved in the confiscation, as well as against the prison warden at the time and the director of the state prison system. Williams contends that by confiscating the certificate without even giving him a chance to read it, the defendants had infringed the First Amendment. The judge dismissed some of the defendants at the outset of the case; their dismissal was justified because they hadn’t been involved in the decision to confiscate the certificate. Summary judgment for defendant Hansen was justified on the same ground. The judge granted summary judgment for the other defendants on a different ground: that their confiscating the certificate had decreased the risk that inmates would retaliate against “boasting inmates” like Williams, and also had protected Todd’s family because the death certificate might include information identifying members of the family.

Although “prisoners have protected First Amendment interests in both sending and receiving mail,” Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999), a prison can confiscate an inmate’s mail if confiscation “is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). But the prison must present “some evidence to show that the restriction is justified.” King v. Federal Bureau of Prisons, 415 F.3d 634, 639 (7th Cir. 2005); see also Brown v. Phillips, 801 F.3d 849, 854 (7th Cir. 2015). The defendants’ brief argues that the “place in hell” note that accompanied the certificate threatened violence against Williams; yes, but violence in hell, not in the prison; no prison official suggested that the note portended violence in the prison. Again without any supporting statement by a prison official, the defendants argue that Williams could use the death certificate as a “trophy,” which would increase tension within the prison and decrease his chances for rehabilitation. A prison does have a legitimate safety concern about “boasting inmates” carrying around trophies of their victims. But Williams asserted in his deposition and affidavit that he had ordered the death certificate for use in state post-conviction proceedings rather than to save as a trophy of his crime, and the defendants have presented no contrary evidence to support their assumption that Williams wanted a trophy. And the prison could have avoided this controversy in the first place by holding on to the death certificate except for the short time needed to include it (or indeed just a xerox copy of it) in Williams’s court filing.

The remaining defendants argue however that even if Williams has stated a claim for relief, they are insulated from liability because the right that he asserts was not clearly established when they violated it. Ashcroft v. Al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). Wrong. The right of a prison inmate to read the mail he receives, provided that his reading it would not infringe the prison’s legitimate interests, is, as noted above, clearly established.

The judgment of the district court is affirmed with regard to the dismissal of the defendants not involved in the confiscation of the death certificate, but is otherwise reversed and the case remanded for further proceedings consistent with this opinion.