text:
    Mary Pat McDONNELL and Thomas W. Boockmeier, Plaintiffs-Appellants, v. Henry G. CISNEROS, Secretary of Housing and Urban Development, Defendant-Appellee.
    No. 95-1864.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 12, 1996.
    Decided May 20, 1996.

      David P. Schippers (argued), James M. Bailey, Schippers & Bailey, Chicago, IL, for Plaintiff-Appellant.
    Thomas P. Walsh, Matthew D. Tanner (argued), Office of the U.S. Atty. Gen., Civ. Div., Chicago, IL, for Defendant-Appellee.
    Before POSNER, C.J., and BAUER and KANNE, Circuit Judges.
   POSNER, Chief Judge.

These two consolidated suits, brought under Title VII of the Civil Rights Act of 1964, charge sexual harassment by HUD, the plaintiffs’ employer, and also retaliation for complaining about the alleged harassment. The district judge granted HUD’s motion to dismiss for failure to state a claim, so we take as true (of course without vouching for) the facts alleged in the complaint, which are as follows. In July 1993 the Secretary of Housing and Urban Development received an anonymous letter accusing employees in HUD’s Chicago office of job-related sexual misconduct. The particular targets of the accusation were plaintiff Boockmeier, HUD’s Regional Inspector General for Investigations, and plaintiff McDonnell, the Assistant Regional Inspector General for Investigations and thus Boockmeier’s subordinate. Among the lurid charges was that McDonnell was Boockmeier’s “in-house sex slave,” who provided sexual favors to him in exchange for more rapid promotion and other preferential treatment. The plaintiffs believe that the letter, and a follow-up letter that repeated the charges in the original letter, were the work of a disgruntled employee in HUD’s Office of Inspector General who wanted to ruin both plaintiffs’ careers.

After receiving the second letter, HUD began an investigation of the two plaintiffs. Because they were employed in the Inspector General’s office, which would normally conduct such an investigation, HUD retained investigators from the Defense Department. They interviewed the plaintiffs and other employees of the Inspector General’s Office in a hostile and unprofessional manner, indicating to the persons they interviewed their personal belief that the plaintiffs were guilty of the charges made in the anonymous letters. The manner in which the investigation was conducted gave rise to even more lurid rumors, widely circulated within HUD, including rumors of incest and other sexual deviance on the part of Boockmeier and a rumor that Boockmeier was the true father of McDonnell's child. These rumors made the plaintiffs pariahs. Male employees of HUD shunned McDonnell, female employees Bo-ockmeier.

The investigation was completed in November of 1993 and completely exonerated both plaintiffs. Nevertheless they were advised by their superiors not to travel together or meet behind closed doors alone, lest they encourage a “perception” of sexual activity. Both during and after the investigation the plaintiffs complained to their superiors about the manner in which it was being conducted and demanded an investigation to determine the identity of their anonymous denouncer. Their superiors did nothing. On November 29, several weeks after he had filed an informal complaint that the treatment by the investigators constituted a form of sexual harassment forbidden by Title VII, Boockmeier was reassigned to HUD’s Washington office for 90 days, ostensibly to dilute any perception that he had a sexual relationship with McDonnell.

In March' of the following year, after McDonnell had filed and refused to withdraw similar (but formal) complaints on her own behalf, Boockmeier was told that his reassignment to Washington was being made permanent as a punishment for his having failed to control his subordinate — that is, to get McDonnell to drop her complaints. This sequence is the basis of Boockmeier’s claim of retaliation.

McDonnell also claims retaliation, and let us start there. She claims that management ostracized, disdained, and ridiculed her in retaliation for her having filed complaints. We do not doubt that anger, irritation, dirty looks, even the silent treatment, can cause distress and by doing so discourage complaints; and in other contexts even rather petty attempts at humiliation, if sufficient to deter the exercise of a right, have been held to be actionable as infringements of rights, for example the right of free speech. Wallace v. Benware, 67 F.3d 656, 663-64 (7th Cir.1995); Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982); Scott v. Flowers, 910 F.2d 201, 204, 213 (5th Cir.1990); Allen v. Scribner, 812 F.2d 426, 434 n. 17 (9th Cir.), modified, 828 F.2d 1445 (1987). There is, however, a tension in the cases (including the cases of this court) with respect to whether more is required in a retaliation case under Title VII (or under any of the other federal employment discrimination statutes that are modeled on Title VII, such as the Age Discrimination in Employment Act), the more being something that can be described as a “materially adverse employment action.” Flaherty v. Gas Research Institute, 31 F.3d 451, 456 (7th Cir.1994); see also Reed v. Shepard, 939 F.2d 484, 493 (7th Cir.1991); Wu v. Thomas, 996 F.2d 271, 273-74 (11th Cir.1993); cf. Nelson v. Upsala College, 51 F.3d 383, 388-89 (3d Cir.1995). Other cases, notably Passer v. American Chemical Soc’y, 935 F.2d 322, 331 (D.C.Cir.1991), reject this limitation. See also Edwards v. Board of Regents, 2 F.3d 382 (11th Cir.1993). Collins v. Illinois, 830 F.2d 692, 702-04 (7th Cir.1987), another of our cases, straddles the divide, by defining the required adverse job action very broadly. For a helpful review of the case law, see Boyd v. Brookstone Corp. of New Hampshire, Inc., 857 F.Supp. 1568 (S.D.Fla.1994).

No limiting language appears in Title VII’s retaliation provision. 42 U.S.C. § 2000e-3(a). The language of “materially adverse employment action” that some courts employ in retaliation cases is a paraphrase of Title VII’s basic prohibition against employment discrimination, found in 42 U.S.C. §§ 2000e-2(a)(1) and (2). Under these provisions, there is no actionable discrimination without something that can be described as an adverse employment action — “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment,” as subsection 2(a)(1) puts it, or “limit[ing], segregat[ing], or classifyfing] ... employees or applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee,” as subsection 2(a)(2) puts it. The provision regarding retaliation may intentionally be broader, since it is obvious that effective retaliation against employment discrimination need not take the form of a job action. Shooting a person for filing a complaint of discrimination would be an effective method of retaliation, though, as Nelson points out, 51 F.3d at 388, the victim of the retaliation would have other, and more powerful, remedies than a suit under Title VII. This would be a reason for confining the provision to retaliation that takes the form of an adverse job action. How serious the adversity need be is a separate question, also difficult.

We need not try to sort out the tangle here. The complaint shows that there was no causal connection between McDonnell’s filing of the complaints and the alleged retaliation against her, so it becomes irrelevant whether the retaliation reached the level of severity at which the statute is triggered. The allegedly retaliatory conduct was merely the continuation of the conduct giving rise to the complaints. The basis of the complaints was that in response to groundless charges of sexual misconduct HUD subjected McDonnell to ostracism, disdain, and ridicule and that these things continued after her formal exoneration. In other words, nothing changed when she filed her complaints. There was no ratcheting up of the harassment. Therefore the complaints could not have been the cause of the ostracism, disdain, and ridicule of which she complains in the retaliation count.

We can imagine an argument that these things would have petered out but for her complaints, which revitalized them. But the argument is not made. On the contrary, McDonnell’s underlying claim of sexual harassment includes the entire course of humiliation that she was subjected to both before and after she complained of the harassment. The complaints’ incremental effect on the amount or intensity of the humiliation to which she was subjected was by her own account zero.

Booekmeier has a solider retaliation claim, to which we shall return after addressing the underlying claim of sexual harassment. The two types of claim, harassment (or other employment discrimination) and retaliation for complaining about or opposing the harassment, are independent. It is improper to retaliate for the filing of a claim of violation of Title VII even if the claim does not have merit—provided it is not completely groundless. Dey v. Colt Construction & Development Co., 28 F.3d 1446, 1457-58 (7th Cir.1994); Rucker v. Higher Educational Aids Board, 669 F.2d 1179, 1182 (7th Cir.1982). There is nothing wrong with disciplining an employee for filing frivolous complaints.

We do not consider the claims of sexual harassment in this case frivolous, although we agree that it was right to dismiss them. Title VII does not prohibit sexual harassment as such, but it does prohibit discrimination, on grounds of sex, in working conditions. When a female worker is sexually harassed by male coworkers or supervisors, the result is to make the workplace less bearable for her because she is a woman than it is for the men who work beside her and, being male, are not harassed. Meritor Savings Bank v. Vinson, 477 U.S. 57, 66-67, 106 S.Ct. 2399, 2405-2406, 91 L.Ed.2d 49 (1986); Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.1995); Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000 (10th Cir.1996); DeAngelis v. El Paso Municipal Police Officers Ass’n, 51 F.3d 591, 593 (5th Cir.1995); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir.1994). The harassment can be purely verbal. Id. at 1464; Dey v. Colt Construction & Development Co., supra, 28 F.3d at 1456; Wallace v. Texas Tech University, 80 F.3d 1042, 1050 n. 9 (5th Cir.1996); Burns v. McGregor Electronic Industries, 989 F.2d 959, 965 (8th Cir.1993); Ellison v. Brady, 924 F.2d 872, 880 (9th Cir.1991). Unfounded accusations that a woman worker is a “whore,” a siren, carrying on with her coworkers, a Circe, “sleeping her way to the top,” and so forth are capable of making the workplace unbearable for the woman verbally so harassed, and since these are accusations based on the fact that she is a woman, they could constitute a form of sexual harassment. Winsor v. Hinckley Dodge, Inc., supra, 79 F.3d at 1000; Spain v. Gallegos, 26 F.3d 439, 442 (3d Cir.1994); Jew v. University of Iowa, 749 F.Supp. 946, 958 (S.D.Iowa 1990). By a further stretch of the concept a male supervisor for whom life is made unbearable by baseless accusations that he is extorting sexual favors from his subordinates could also be thought a victim of sexual harassment. Such accusations would be based on the fact that he was a man—that is, on the difference in sex between him and the persons he was accused of abusing.

Analysis is complicated by the fact that a difference in sex is not a necessary condition of sexual activity and hence (most courts think) of sexual harassment. There is plenty of homosexual activity these days (perhaps all days); some of it occurs in the workplace; and some involves the extorting of sexual favors by superiors, or other behaviors that when heterosexual expose employers to liability for sexual harassment in violation of Title VII’s prohibition of sex discrimination. E.g., Hopkins v. Baltimore Gas & Electric Co., 77 F.3d 745 (4th Cir.1996); Morgan v. Massachusetts General Hospital, 901 F.2d 186, 192 (1st Cir.1990). And then there is the specter of the perfectly bisexual harasser—a number 3 on the Kinsey Scale of sexual preference—who by definition is indifferent to the sex of his victims and so engages in sexual harassment without discriminating on the basis of sex. See Barnes v. Costle, 561 F.2d 983, 990 n. 55 (D.C.Cir.1977). With examples like these the government urges us to affirm the dismissal of the plaintiffs’ claim of sexual harassment on the ground that, since the harassment was impartially directed against the male and the female accused of improper sexual activity, there was no discrimination on grounds of sex.

We do not find this class of arguments compelling, and are rather surprised to find the Department of Justice urging them. Although supported by dicta in some cases, id.; Rawinsky v. Bryan Independent School District, 80 F.3d 1006, 1016 (5th Cir.1996); Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir.1986); Henson v. City of Dundee, 682 F.2d 897, 903-04 (11th Cir.1982), such arguments interpret sex discrimination in too literal a fashion. Sexual harassment was brought under the aegis of Title VII’s sex discrimination clause because it makes the workplace difficult for women on account of their sex. There is some homosexual harassment in the workplace and a little bit of sexual harassment of men by women, but these are relatively esoteric practices that do not detract seriously from the fact that sexual harassment is a source of substantial non-peeuniary costs to many working women. It would be exceedingly perverse if a male worker could buy his supervisors and his company immunity from Title VII liability by taking care to harass sexually an occasional male worker, though his preferred targets were female. See Steiner v. Showboat Operating Co., supra, 25 F.3d at 1464.

Although we conclude that a claim of sexual harassment might arise from verbal harassment of a pair of male and female employees falsely accused of sexual hanky-panky in derogation of their duty to their employer, we do not think it can do so in the circumstances detailed at such length in the complaint. The plaintiffs’ employer received a complaint of .job-related sexual misconduct by them. Although the complaint was anonymous, the plaintiffs do not argue that their employer was obliged or even entitled to ignore it. Employers who disregard charges of sex-related misconduct by their employees run a considerable risk of being sanctioned for having tolerated sexual harassment. It behooved HUD to investigate the charges against the plaintiffs, and since the plaintiffs were employed in the department’s investigative arm the department had to turn to another department for investigators. For this reason and to preserve an appearance of impartiality, HUD had to give the bloodhounds a long leash. Police officers, FBI agents, and other persons engaged in the investigation of misconduct, whether criminal or civil, sometimes stray across the indistinct line that separates vigorous from abusive investigation. The Defense Department’s investigators may have done so in this case. The question is whether an investigation of sexual harassment that exceeds the proper limits is itself a form of actionable sexual harassment.

The objections to such an extension of the concept of sexual harassment are both practical and doctrinal. The practical objection is that it places the employer on a razor’s edge. A parallel concern figured in this court’s and the Supreme Court’s decision that state welfare workers, who can be liable under the Constitution for removing children from parental custody without good cause, should not also be liable under the Constitution for failing without good cause to remove children from parental custody. DeShaney v. Winnebago County Dept. of Social Services, 812 F.2d 298, 303 (7th Cir.1987), aff'd, 489 U.S. 189, 203, 109 S.Ct. 998, 1007, 103 L.Ed.2d 249 (1989). The employer who fails to investigate a charge of sexual misconduct will be liable under Title VII, should the charge turn out to be meritorious, for having failed to exercise due care to prevent sexual harassment. E.g., Carr v. Allison Gas Turbine Division, 32 F.3d 1007, 1011-12 (7th Cir.1994); Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 535 (7th Cir.1993); Cortes v. Maxus Exploration Co., 977 F.2d 195, 199 (5th Cir.1992). But if, because the employer wants to demonstrate how seriously he takes such charges, the investigation oversteps the proper bounds, causing humiliation to the targets of the investigation, the employer will, under the interpretation of the law that the plaintiffs urge in this case, also be guilty of sexual harassment.

The law does sometimes place people on a razor’s edge, where they face liability for doing either too much or too little. But here we are being asked to extend the law to bring about this result, and we are reluctant to do this. We are especially reluctant because Congress has made specific provision with respect to the legal remedies of victims of improper investigation by federal officers—which brings us to the doctrinal objection to the extension of accepted principles that the plaintiffs seek. If, as alleged, the investigators in this case told the people whom they were interviewing that the plaintiffs had engaged in job-related sexual misconduct, then, because the statement was false and defamatory, the investigators committed the tort of defamation, for which the plaintiffs could sue them. But the investigators would have a defense of qualified immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 275-78, 113 S.Ct. 2606, 2617-18, 125 L.Ed.2d 209 (1993); Siegert v. Gilley, 500 U.S. 226, 234, 111 S.Ct. 1789, 1794, 114 L.Ed.2d 277 (1991). Since the amendments to the Federal Tort Claims Act made by the Westfall Act, Pub.L. 100-694, in 1988, they would have something even better—a right, upon certification by the Attorney General that they were acting within the scope of their employment, to substitute the United States as the party defendant and the Tort Claims Act for whatever law might otherwise apply. 28 U.S.C. §§ 2679(b)(1), (c), (d)(4); see also Pub.L. 100-694, § 2. The United States is not liable under the Tort Claims Act for defamation by its employees. 28 U.S.C. § 2680(h). One effect of the Westfall Act is therefore to preclude our plaintiffs’ potential defamation claim (which arose after the Act went into effect) against the Defense Department’s investigators.

The plaintiffs’ counsel pointed to the Federal Tort Claims Act’s exclusion of defamation as a reason for wanting to shoehorn the investigators’ misconduct into Title VII. The exclusion weakens rather than strengthens the plaintiffs’ case. When Congress crafts particular remedies for particular wrongs, the presumption is that these are the exclusive remedies and that such limitations as they may embody are not to be circumvented by extending a more generally worded statute over the subject of the more specific one. E.g., Seminole Tribe v. Florida, — U.S.-,-, 116 S.Ct. 1114, 1132, 134 L.Ed.2d 252 (1996); Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 14-15, 101 S.Ct. 2615, 2623-24, 69 L.Ed.2d 435 (1981). The Tort Claims Act makes specific provision for suits arising out of abuses by federal investigators in a proviso to 28 U.S.C. § 2680(h) that conspicuously omits defamation from the list of abuses that can impose liability on the United States under the Act. The plaintiffs are trying to use Title VII, which does not have any specific provision with regard to federal investigators, to amend the Tort Claims Act and circumvent the Westfall Act.

We turn to Boockmeier’s claim of retaliation. The claim, or at least so much of it as survives other objections, alleges retaliation for Boockmeier’s failure to prevent McDonnell and others from filing complaints, rather than for filing his own complaints. Such a claim does not come within the scope of the retaliation provision of Title VII if interpreted literally. That provision merely forbids the employer to “discriminate against any individual ... because he has made a charge ... or participated in any manner in an investigation, proceeding, or hearing under” Title VII. 42 U.S.C. § 2000e-3(a). The reason for this wording, however, so far as we are able to discover (there is no pertinent legislative history), is that in the ordinary case an employer would have no reason to retaliate against someone who did not file a complaint, testify, etc. Generally one retaliates against someone because of something he did rather than because of something someone else did. Not always. There is such a thing as collective punishment. But that possibility is unlikely to have been in the forefront of congressional thinking when the retaliation provision was drafted.

There are two situations, apparently not foreseen by Congress, in which a literal interpretation of the provision would leave a gaping hole in the protection of complainants and witnesses. The first situation, related to our point about collective punishment, is where the employer either does not know who the complainant is and decides therefore to retaliate against a group of workers that he knows includes the complainant, or makes a mistake and retaliates against the wrong person. The second situation, which is this case, is where the employer retaliates against an employee for having failed to prevent the filing of a complaint. Both are cases of genuine retaliation, and we cannot think of any reason (and the government has suggested none), other than pure oversight, why Congress should have excluded them from the protection of section 2000e-3(a). It does no great violence to the statutory language to construe “he has made a charge” to include “he was suspected of having made a charge” and “he allowed a charge to be made.” Wu v. Thomas, 863 F.2d 1543, 1547-48 (11th Cir.1989), goes even further in liberally interpreting section 2000e-3(a) to accomplish its evident purpose, and no case is contrary.

The same provision, moreover, forbids retaliating against an employee “because he has opposed any practice made an unlawful employment practice” by Title VII. Several courts, including our own, hold that assisting another employee with his (in this case her) discrimination claim, as well as other endeavors to obtain the employer’s compliance with Title VII, is protected “opposition conduct.” We said in Rucker v. Higher Educational Aids Bd., supra, 669 F.2d at 1182, that “an a fortiori violation of section 2000e~3(a) is committed when an employee opposes an attempt to discriminate against a fellow employee so successfully that the employer desists from the attempt and then fires the ‘whistle-blower’ for what he has done.” See also EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir.1993); Parker v. Baltimore & Ohio R.R., 652 F.2d 1012, 1019 (D.C.Cir.1981); Novotny v. Great American Fed. Savings & Loan Ass’n, 584 F.2d 1235, 1260-61 (3d Cir.1978). It is true that these are cases of active opposition. Boockmeier’s “opposition” was passive. It consisted only of failing to carry out his employer’s desire that he prevent his subordinates from filing discrimination complaints. Passive resistance is a time-honored form of opposition, however, and it would be very odd to suppose that Congress meant a form of behavior that straddles what the cases, characterizing the dual structure of the retaliation provision, call “opposition” and “participation” conduct to fall between the stools. The result would be that employers could obtain immunity from the retaliation statute by directing their subordinates to take steps to prevent other workers (as by threat of dismissal or other discipline) from complaining about discrimination.

The complaint does not spell out the measures that Booekmeier was expected to take to prevent McDonnell from complaining, but such specificity is not required in a complaint. As McDonnell's direct superior, Bo-ockmeier undoubtedly could harm her career — as his superiors must have known. And there is little doubt that the chain of retaliations would be adverse job actions — if the retaliations forbidden by Title VII are, to recur to an earlier discussion, so limited. Also, the defendant does not argue that Bo-ockmeier’s punitive reassignment was not an adverse job action.

We believe that it was an error to dismiss the part of Boockmeier’s complaint that charges retaliation. With this exception, the judgment is affirmed.

Affirmed in Pakt, Reversed in Part, and Remanded.


source: Caselaw Access Project

author: CUDAHY, Circuit Judge.

license: Public Domain

text:
    CONTROLLED DEMOLITION, INCORPORATED, Plaintiff-Appellant, v. F.A. WILHELM CONSTRUCTION COMPANY, INCORPORATED, Mansur Development Corporation and Aetna Life Insurance Company, Defendants-Appellees.
    No. 95-2747.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 20, 1996.
    Decided May 20, 1996.

      Donald F. Foley (argued), Mary F. MeFearin, Foley & Pool, Indianapolis, IN, for Plaintiff-Appellant.
    William T. Niemier, John S. Mercer (argued), Wood, Touhy, Gleason, Mercer & Her-rin, Indianapolis, IN, for Defendants-Appel-lees.
    Before CUMMINGS, CUDAHY, and MANION, Circuit Judges.
   CUDAHY, Circuit Judge.

This diversity ease involves various claims which resulted from breaches of contract by general contractors and subcontractors involved in a major construction project. All of the basic liability issues have been resolved. The issues raised on appeal are of importance only for their effect on whether Controlled Demolition, Inc. (CDI) can recover attorney’s fees pursuant to an Indiana statute governing the enforcement of liens. Ind.Code § 32-8-3-14. Specifically, CDI challenges the district court’s grant of summary judgment on a statutory “personal liability” claim against the owner of the property for moneys it was owed by the general contractor, Ind.Code § 32-8-3-9; the grant of summary judgment as to CDI’s attempt to foreclose a mechanic’s lien on the property and the district court’s finding that CDI owed an implied duty to indemnify the general contractor for funds the latter expended to settle mechanic’s liens placed on the property by certain subcontractors. We affirm.

I. Background

F.A Wilhelm Construction Company was hired by Mansur Development Corporation to develop real estate located in Indianapolis, Indiana and owned by Mansur as a site for the corporate offices of Farm Bureau Insurance Company. In August 1990, in aid of its development efforts, Wilhelm entered into two separate contracts with CDI. The first agreement involved the removal of transformers containing PCBs from the premises of the planned Farm Bureau development. The second was a contract for general demolition work. CDI in turn subcontracted -with Donald Lee Twichell, Jr., individually and doing business as DLT, Inc., (collectively, Twichell) to aid in removing the debris caused by the demolition. Twichell rented equipment from K & F Industries, Inc. for use in the project. Some of the rented equipment was owned by Carlisle Equipment Company, Inc. The work was completed in early 1991. However, CDI and Wilhelm became involved in a dispute, details of which are immaterial here, apparently occasioned by Twichell’s failure to complete its subcon-traetual responsibilities in a timely fashion. As a result of the dispute, Wilhelm did not pay CDI the balance due to it under the contract. Various disputes also erupted over the matter between CDI and its subcontractors.

On February 13, 1991, CDI filed two notices with the Marion County Recorder. The first detailed its intent to hold a mechanic’s lien on the property, as allowed by Ind. Code § 32-8-3-3, in the amount of $344,-570.81. The second gave notice of a “personal liability claim” against Mansur, under Ind. Code § 32-8-3-9. This statute “provides that upon notice to the owner by a subcontractor ... of the subcontractor’s claim against the contractor, ... the owner shall be liable to the subcontractor for that elaim up to the amount that the owner owes the contractor.” Coplay Cement Company, Inc. v. Willis & Paul Group, 983 F.2d 1435, 1436 (7th Cir.1993). In other words, this statute gives a subcontractor a direct claim against the owner for a general contractor’s breach of its duty to. pay the subcontractor.

Wilhelm’s project manager, Terry Bareither, responded to these filings by mailing to CDI, on February 23,1991, a certified Notice to Commence Suit, as set out in Ind.Code § 32-8-3-10. The letter stated that CDI was thereby “notified to commence suit within thirty (30) days of receipt of this Notice.” Rec. Doc. 61, Exh. A CDI was also informed in the letter that, as the statute provides, “[fjailure to file suit within thirty (30) days after receipt of this notice shall cause the above identified lien to become null and void.” Id. The original letter contained a typographical error in the statutory reference. CDI therefore responded on February 25,1991, with a letter stating:

Regarding your Notice to Commence Suit, my attorney advises me that .I.C. 23-8-3-10 as listed in your certified mail covers hospital associations. If your intent was to file a legal notice, Terry, I think you will have to refile with appropriate Indiana .Code notation.

Rec. Doc. 61, Exh. C.

Bareither sent a corrected notice on March 3, 1991. CDI did not file suit within thirty days of receiving the corrected notice, nor respond to the notice in any other way. In fact, CDI did not file its suit on the mechanic’s lien until July 26,1991, after it received a Notice to Commence Suit directly from Man-sur, the owner of the real estate. Rec. Doc. 11, Exh. E. That letter, mailed on June 25, 1991, was received by CDI on July 1, 1991.

Contending that Twichell had not met his obligations for the equipment used in the project, Carlisle and K & F also filed mechanic’s hens against the property. While the district court proceedings attending the current suit were ongoing, Wilhelm, pursuant to an obligation to clear hens imposed by its contract with Mansur, settled the claims of Carlisle and K & F. Wilhelm then sought indemnification from CDI for this payment.

The district court dealt with a number of issues during the course of this lawsuit, only some of which are relevant to this appeal. We summarize the court’s relevant actions here. The district court granted summary judgment against CDI on its mechanic’s hen claim (Count VII of its Amended Complaint) and on its claim based on the Indiana personal liability statute (Count VI). Summary judgment on these claims was based on CDI’s failure to respond in a timely fashion to Wilhelm’s Notice to Commence Suit.

At trial, the court rendered judgment on ah breach of contract claims related to the agreements between Wilhelm and CDI, granting CDI’s claim that Wilhelm had breached the PCB contract (Count I) and finding that both Wilhelm and CDI had breached the demohtion contract (Count II and Wilhelm Counterclaim Count I). The result of these findings was that Wilhelm was hable to CDI for $51,325.30 on the PCB contract. Wilhelm and CDI each recovered a judgment resulting from the other’s breach of the demohtion contract, with Wilhelm ha-ble to CDI for $174,802.00 and CDI hable to Wilhelm for $133,254.30. At trial, the district court also found in favor of Wilhelm on the indemnification claim (which was related to the demohtion subcontracts), in the amount of $45,000. Thus Wilhelm received a total judgment against CDI in the amount of $178,254.30. The net result of these decisions was that CDI owed Wilhelm a sum somewhat over $3,000 stemming from the demohtion contract. Ah judgments based on the dispute between CDI and Wilhelm have been satisfied. CDI also was granted a judgment against Twichell for its breach of its contract with CDI, and Twichell was required to indemnify CDI for losses resulting from Twichell’s breach. CDI thus received a judgment against Twichell of $178,254.30— the amount of CDI’s liability to Wilhelm.

On appeal, CDI challenges three decisions of the district court: First, CDI argues that the court erred in finding that it failed to commence suit on the mechanic’s hen in a timely fashion. It contends that Wilhelm was not authorized by the statute to issue the notice to commence suit on behalf of Mansur and, thus that the thirty-day time limit did not begin running until CDI received Man-sur’s letter on July 1, 1991. Second, CDI claims that the district court erred in dismissing its personal liability claim against Mansur since the thirty-day notice provision apphes only to hens. Finally, CDI contends that the district court erroneously found that it had a common law duty to indemnify Wilhelm for its payments to Carhsle and K & F.

II. Analysis

Because CDI received indemnification from Twichell for ah of its liability to Wilhelm and Mansur, it is not immediately apparent what CDI hopes to gain by pursuing this appeal. The answer to that puzzle is found in the attorney’s fees provision of Indiana’s mechanic’s hen statute, which states:

In ah suits brought for the enforcement of any hen under the provisions of this chapter, if the plaintiff or lienholder shah recover judgment in any sum, he shah also be entitled to recover reasonable attorney’s fees ...

Ind.Code § 32-8-3-14.

Thus, if CDI is to recover from Wilhelm any attorney’s fees related to this action, CDI must show that it 1) recovered a judgment; 2) in any sum; 3) in a suit brought for the enforcement of a lien. The district court’s resolution of the lawsuit forecloses CDI’s recovery. The court granted summary judgment against CDI on the mechanic’s lien counts of its complaint (hence there was no successful suit brought for the enforcement of a lien). The court also found that Wilhelm’s recovery from CDI on the demolition contract exceeded that of CDI from Wilhelm. Hence, under Indiana case law, there was no “judgment in any sum.” CDI’s appeal focuses on removing these barriers to its collection of attorney’s fees.

A. Summary Judgment on the Personal Liability Claim (Count VI)

On summary judgment, the district court treated both Counts VI (personal liability under Ind.Code § 32-8-3-9) and VII (foreclosure of mechanic’s hen) of CDI’s complaint as suits to foreclose mechanic’s hens on Mansur’s property. It thus apphed the thirty-day limit on time to commence suit to both counts. This confusion is perhaps not surprising, given that CDI labeled Count VI, “Subcontractor’s Complaint for Foreclosure of Mechanic’s Lien on Proceeds of Contract” and that the statute under which the claim was brought is entitled “Subcontractor’s, journeymen or laborer’s hens; notice; actions.” However, CDI is correct in stating that this subsection of the Indiana Code, while it resides in the middle of the Mechanic’s Lien statute, does not actually deal with hens. This portion of the Indiana Code, instead, creates a right for subcontractors to sue owners of property directly when a general contractor fails to pay them. The subsection does not create a secured interest. Coplay, 983 F.2d at 1436.

However, while CDI thus succeeds in convincing us that the district court erred in granting summary judgment on Count VI, its victory in this regard is insubstantial. As Defendants correctly note, the judgments on CDI’s breach of contract claims against Wilhelm (Counts I & II), now fully satisfied, render Count VI entirely moot. The personal liability statute grants a cause of action by a subcontractor against the owner only so long as the general contractor fails to pay. CDI has now received complete satisfaction of the debt owed to it by Wilhelm. Therefore, no claim against Mansur remains and the district court’s error in dismissing Count VI left no ill effects. In any event, CDI’s argument that the personal liability claim is unaffected by the thirty-day filing limitation simply because the claim is not a hen, proves too much with respect to CDI’s attempt to collect attorney’s fees under § 32-8-3-14. That statute, too, applies only to Hens. The Indiana Supreme Court has held that, since § 32-8-3-9 does not create a Hen, attorney’s fees are not available under § 32-8-3-14 for suits under § 32-8-3-9. McCorry v. G. Cowser Construction, Inc., 644 N.E.2d 550 (Ind.1994), adopting the opinion in McCorry v. G. Cowser Construction, Inc., 636 N.E.2d 1273 (Ind.App. 5 Dist.1994). Thus, even if the district court had aUowed Count VI to proceed, CDI would have garnered no eHgibiHty to coHect attorney’s fees nor would it have recovered any damages in excess of those it has already recovered from Wilhelm.

B. Summary Judgment on the Mechanic’s Lien Claim (Count VII)

The district court’s grant of summary judgment on CDI’s attempt to foreclose its mechanic’s Hen was premised on its conclusion that CDI forfeited its right to sue on that Hen when it failed to respond in a timely fashion to Wilhelm’s Notice to Commence Suit. CDI argues that it bore no responsibility to respond to Wilhelm’s letter because Wilhelm lacked authority to provide the required notice. The statute in question states:

The owner of property upon which a mechanic’s Hen has been taken, or any person or corporation having an interest therein, including mortgagees and Henholders, may notify, in writing, the owner or holder of the Hen to commence suit thereon and if he fails to commence such suit within thirty (30) days after receiving such notice, the Hen shaH be null and void ...

Ind.Code § 32-8-3-10.

The district court found that, as a general contractor which “was responsible for seeing that Hens filed against the project were cleared” and which “had the right to file a Hen on the property,” Wilhelm qualified as a “person or corporation having an interest [in the property].” Additionally, the district court found that Wilhelm was Mansur’s agent and, thus, could equally well be deemed to have filed the notice on Mansur’s behalf.

The question of the standing of a general contractor to issue notice under § 32-8-3-10 apparently is one of first impression. CDI has, therefore, relied heavily on policy arguments suggesting that general contractors should not be allowed to send notices on an owner’s behalf. The governing consideration in these arguments is the danger that the general contractor, whose interests are often adverse to those of the owner, will undermine the owner’s ability to resolve its disputes with lienholders. In this regard, CDI cites a general policy of the law to discourage litigation. Lafayette Tennis Club, Inc. v. C.W. Ellison Builders, Inc., 406 N.E.2d 1211, 1214-15 (Ind.App. 3 Dist.1980).

CDI also argues that, since the examples given in the statute of “person[s] having an interest therein” are mortgagees and lien-holders, the statute should be construed to require that persons authorized to give notice have a recordable interest in the property. It contends that the statutory omission of agents in the list of authorized notice givers should be understood to imply that the Indiana legislature did not intend for agents of the owner to have the power to issue the required notice. Alternatively, CDI argues that there was insufficient proof of the required agency relationship in this case.

The defendants argue that Wilhelm had authority to issue the Notice to Commence Suit, even independent of its agency relationship to Mansur, because of its status as a potential lienholder (because of the right it would have had to file a lien against the property had Mansur failed to make payment to Wilhelm).

We doubt that the Indiana statute extends so far as to provide “potential” lienholders a right to issue a Notice to Commence Suit. We also agree with CDI that there might be cases in which an owner might not wish to grant a general contractor the right to foreclose liens on its property. We need not assess the general validity of either of these arguments, however, for, in this case, we conclude that Wilhelm had a right to issue the Notice to Commence Suit under the terms of its contract with Mansur.

First, we reject CDI’s argument that, in order to issue a Notice to Commence Suit, the issuer itself must have a recordable interest in the property. We see no indication that ordinary principles of agency were not intended to apply in construing the statute. The issuance of legal notice is commonly undertaken by agents (in many cases, attorneys), and CDI does not persuade us that an exception to this ordinary practice was intended here. (Indeed, a corporation has no alternative but to issue notice through the hand of an agent.)

We also see no reason to confine the owner’s choice of agent for the task. It may be, as CDI suggests, that many owners prefer not to grant power to a general contractor to issue a Notice to Commence Suit upon hens against the property which the contractor is developing. Here, however, the district court found (and CDI does not dispute) that “Wilhelm was responsible for seeing that hens filed against the project were cleared.” Dist.Ct. Nov. 10, 1992 Op., CDI App. at 8. Further, the uncontested affidavit of Wilhelm’s Project Manager, Bareither, states that Wilhelm had a contractual obhgation to indemnify Mansur against all hens filed by CDI and to maintain an escrow account containing funds sufficient to cover any mechanic’s hens filed against the property. Bareither Aff., Rec. Doc. 63.

We therefore conclude that, in this case, Wilhelm had the authority to issue a Notice to Commence Suit on CDI’s hens. Its contract with Mansur gave it the duty to clear hens from the property and the financial responsibility for any hens which were not cleared. This contractual arrangement was Mansur's specific choice, thus obviating any need for us to decide whether owners generally would be at risk if general contractors were deemed by implication to be their agents for the purpose of issuing such notices. Further, we think it likely that Wilhelm’s contractual obligation to indemnify Mansur with respect to CDI’s mechanic’s hen was sufficient to grant it an independent right to issue the required notice. Finally, as a point of equity, we note, as did the district court, that CDI registered no complaint against having been served notice by Wilhelm at the time it received Wilhelm’s letter. Instead, CDI simply pointed out a typographical error and stood by.

Because we agree with the district court that Wilhelm had standing to issue the Notice to Commence Suit under § 32-8-3-10 and because CDI did not commence suit within thirty days of receipt of Wilhelm’s notice, we affirm the district court’s grant of summary judgment as to Count VII of CDI’s Amended Complaint.

C. Implied Indemnify

CDI finally contends that the district court erred in concluding that it had an implied duty to indemnify Wilhelm with respect to its settlement of the mechanic’s liens taken out by K & F and Carlisle. Before turning to this issue, we note that, given our affirmance of the district court’s dismissal of CDI’s attempt to foreclose its mechanic’s lien, CDI would not be entitled to attorney’s fees, even if we found that the district court had erred in its decision on the indemnify claim. We also note that CDI prevailed in its claims for indemnification and breach of contract against Twichell (which was responsible for the filing of mechanic’s liens by K & F and Carlisle), so that it has already recovered a judgment requiring Twichell to reimburse it for the cost of its indemnification of Wilhelm.

In any event, as the defendants point out, the issue of implied indemnity is not properly before this court. CDI failed to comply with Federal Rule of Appellate Procedure 10(b)(3) which requires that:

Unless the entire transcript is to be included, the appellant shall, within the 10-day time provided in paragraph (b)(1) of this Rule 10, file a statement of the issues the appellant intends to present on the appeal, and shall serve on the appellee a copy of the order or certificate and of the statement. An appellee who believes that a transcript of other parts of the proceedings is necessary shall, within 10 days after the service of the order or certificate and the statement of the appellant, file and serve on the appellant a designation of additional parts to be included.

Fed.R.App.Proc. 10(b)(3).

CDI’s Statement of Issues on Appeal, Rec. Doc. 239, stated only its intent to challenge the district court’s summary judgment decisions as to Counts VI and VII of its Amended Complaint. The purpose of Rule 10 is to ensure that each of the opposing parties has the opportunity to place before the appellate court those portions of the record which it deems relevant to the appeal. The defendants did not have that opportunity-

Under Indiana law of implied indemnity, “[a] person who, without fault, has been compelled to pay damages because of the wrongful conduct of another primarily liable may recover from such other for expenditures properly made in the discharge of such liability.” Dist.Ct. Nov. 10, 1992 Op., CDI App. at 11, citing I.L.E. Indemnity § 5. From the limited record before us we do know that, under Article 11.2.6 of the contract between CDI and Wilhelm, CDI was responsible to pay for “all materials, equipment and labor used in, or in connection with, the performance of this Subcontract.” Rec. Doc. 11, Exh. B. There was no clear error in the district court’s determination that CDI was liable to Wilhelm for any failure by Twichell to pay K & F or Carlisle for use of equipment for the project.

Beyond this, however, CDI’s argument that the district court incorrectly decided the implied indemnify issue relies on claims that Wilhelm was not compelled to pay K & F and Carlisle, CDI Br. at 37; that the district court failed “to adjudicate the amount of debt, if any, owed by Twichell to K & F and Carlisle and the reasonableness of such amount,” CDI Br. at 33; and that “there has not been any determination that the forty-five thousand ($45,000.00) paid by Wilhelm to K & F and Carlisle was appropriate for the services rendered by them on this project.” CDI Br. at 35. The defendants complain that, because they were not notified that this issue would be raised on appeal, they were denied the opportunity to respond to these arguments by citing to relevant portions of the trial transcript.

CDI’s only response to this Rule 10 argument is to point to various items in the record which it claims supports its version of events. This response misses the point of Rule 10 entirely. The point of Rule 10 is to give notice to the adverse party of issues which will be raised on appeal. Having been given notice of the issues which will be raised, the adverse party can ensure that parts of the transcript which it deems supportive of its case will appear in the record on appeal. The fact that CDI can list items in the record which arguably advance its cause does nothing to cure the effects of its Rule 10 violation. We therefore decline to review the district court’s ruling on the implied indemnity issue, the outcome of which, in any event, has no bearing on the attorney’s fees question which motivates this appeal.

III. Conclusion

In conclusion, we affirm the district court’s summary judgment on CDI’s mechanic’s lien claim (Count VII). Though we find that the district court erred in granting summary judgment on the personal liability claim (Count VI), we conclude that this claim has been rendered moot by the judgment and satisfaction of the breach of contract claims between Wilhelm and CDI. We find that the issue of implied indemnity is not properly before us on appeal, CDI having failed to comply with Rule 10(b)(3). The Rule requires that, unless the entire transcript forms part of the record on appeal, the opposing party be given notice of the issues to be raised on appeal, so as to provide opportunity for that party to supplement the record with those portions of the transcript it deems relevant. CDI did not list implied indemnity in its statement of issues, nor did it place the entire trial transcript into the appellate record. Therefore, CDI has waived the opportunity to advance its arguments on this issue.

AFFIRMED.

      . On the same count of its complaint, CDI also recovered a judgment against Twichell related to another project. This judgment is irrelevant here.

      . According to the undisputed assertion of the defendants' counsel at oral argument, this contract was on public file and, therefore, available to CDI.


author: DIANE P. WOOD, Circuit Judge.

text:
    Gina PIRAINO, Plaintiff-Appellant, v. INTERNATIONAL ORIENTATION RESOURCES, INC., Defendant-Appellee.
    No. 95-2491.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 8, 1995.
    Decided May 21, 1996.

      Lisa Kane (argued), Kane & Associates, Chicago, IL, for Plaintiff-Appellant.
    Samuel G. Levin, Siegel, Lynn & Capitel, Northbrook, IL, Bradley B. Falkof (argued), Amy McKeever Toman, James A Reiman, Barnes & Thornburg, Chicago, IL, for Defendant-Appellee.
    Before KANNE and DIANE P. WOOD, Circuit Judges, and SKINNER, District Judge.

       The Honorable Walter Jay Skinner, Judge of the United States District Court for the District of Massachusetts, sitting by designation.

   DIANE P. WOOD, Circuit Judge.

International Orientation Resources, Inc. (“IOR”) is a company that provides cross-cultural training to American families and individuals who are relocating overseas and to foreign families and individuals moving to the United States for extended stays. Their human relations expertise, however, did not save them from at least one internal employment problem at the company. Gina Piraino, one of IOR’s cross-cultural trainers during the latter part of 1990, claims that she was fired in violation of the Pregnancy Discrimination Amendment to Title VII, 42 U.S.C. § 2000e(k), commonly referred to as the Pregnancy Discrimination Act (PDA). Because we conclude that Piraino demonstrated that there were genuine issues of material fact requiring a trial, we reverse the district court’s summary judgment for IOR and remand for further proceedings.

I

Piraino initially applied for a position as a cross-cultural trainer at IOR in July 1990. Fran Perlman, the Director of Human Resources, Stephanie Derderian, the Director of Training, and Noel Kreicker, the President, all interviewed her for the position. At the time of the interview, she was four months pregnant, but she neither mentioned this fact nor did any of the IOR representatives learn of it in any other way. IOR offered Piraino the job on August 2, 1990; she promptly accepted and began work on August 6th.

In September 1990, Piraino disclosed her pregnancy to Kreicker, Perlman and Derde-rian. The initial responses she received were relatively positive. Derderian told her “not to worry,” and that “she [Derderian] didn’t see that it would be a problem.” Kreicker’s response was similar, “Well, I’m sure this won’t be a problem. We have been through this before.” Perlman also said that there shouldn’t be a problem, that the company would work it out, and that IOR would put something in writing. None of these officials said anything about any IOR policy (written or unwritten) that was already in existence, even though IOR had a practice of advising applicants about its policies and benefits. In Piraino’s ease, Perlman had told her about IOR’s vacation, sick leave and personal day policies when she offered Piraino the job, and Perlman reviewed the IOR employee handbook with Piraino on her first day of work. In neither conversation did the subject of an unwritten leave of absence or maternity leave policy come up. Instead, when Piraino told Kreicker that she “did not expect [a] paid leave of absence” and asked what the company had in mind, Kreicker said only “Don’t worry. We will work it out. There’s no problem.”

On November 15, 1990, as Perlman had promised, IOR issued its Leave of Absence Policy, effective immediately. The Policy had the following to say on the subjects of unpaid leaves of absence and maternity leave:

Unpaid Leaves of Absence
Under certain circumstances, you may be eligible for a leave of absence. The length and conditions of the leave depends [sic] upon:
1. your length of service with IOR
2. the reason for requesting leave
1. Leaves of absence may be granted to employees who have been with the company for a minimum of one year.
For employees that have been with the company for less than one year, efforts will be made to place the returning employee into the same or similar position if possible. During any period of leave, IOR reserves the right to fill, alter, or eliminate a vacant position if required by business needs. If a position which is vacant due to an approved leave of absence is filled, IOR will make a reasonable effort to offer the employee an equivalent position when he or she is ready to return....
2. Types of Leave
* sis * * * *
Maternity Leave
Upon completion of a minimum of one year with the company, employees may request up to six weeks leave for maternity.... Upon completion of four weeks leave, it is the responsibility of the employee to notify the department manager as to the date of return to work or request additional leave. Failure to notify will be considered as giving notice of voluntary resignation. IOR will hold a position open for a period of six weeks. If at four weeks, an extension is requested and granted beyond the original six weeks leave, IOR reserves the right to fill, alter or eliminate a vacant position if required by business needs.

When Piraino received this policy, she concluded that she would not be able to return to work for IOR under its terms.

Some time in December, Perlman told Pi-raino that Piraino was under no obligation to report back to IOR on a particular date after her child was bom, and that she could “reapply” for a position with IOR when she was ready to return to work. Piraino’s last day of work was December 30, 1990 — the same day as the baby was bom. On December 31, 1990, she notified Perlman of the birth of the baby, and she called Perlman on the first business day of January 1991 to ask whether she needed to submit any kind of written notice for a leave of absence. Perlman responded, “You don’t need to do anything. You have voluntarily quit. If you want, you can reapply.” On February 15,1991, Piraino visited IOR’s offices with her new baby. Pi-raino recalled that she asked Derderian whether a position was available and that Derderian said no; Derderian has no memory of the conversation. Although Piraino did not formally reapply for employment at IOR, she telephoned Derderian in late February or early March 1991 to see if a position had become available during the interim. She was told that one had not.

In the meantime, IOR experienced a downturn in business beginning in the final quarter of 1990 and continuing into the spring of 1991. Although the magnitude of the slowdown is disputed, it is undisputed that IOR reported annual losses for 1990 and 1991. In mid-December 1990, after it was clear that Piraino would be gone for the birth of her baby (and thereafter, pursuant to the November 15 policy), IOR promoted two employees, Linda Hamby and Barbara McDaniel, to the position of part-time trainer. The parties dispute whether Hamby’s and McDaniel’s prior jobs had been clerical or professional, but it is clear that the two women received additional job responsibilities including some or all of those that Pirai-no had performed. In April 1991, IOR hired Patrick Coughlin to develop its business programs. Again, although the parties dispute the precise scope of his job, they agree that he conducted the kind of adult training program Piraino had done in addition to performing his marketing tasks.

II

On September 13, 1991, Piraino filed a complaint with the Equal Opportunity Employment Commission. The Commission issued a right to sue letter, which Piraino received on January 1, 1994. Piraino, in compliance with the statutory time limits, filed a complaint in the district court alleging that IOR violated the PDA On May 24, 1995, the district court granted IOR’s motion for summary judgment. That court concluded that Piraino had to prove her claim of pregnancy discrimination through the use of circumstantial evidence, rather than direct evidence. Before that court, as here, Piraino relied on the timing of IOR’s adoption of its unpaid leave of absence policy to show the existence of discrimination. The district court found that IOR had presented “undisputed testimony” that it had “an informal, unwritten leave of absence policy in effect for four years prior to November 1990,” and that the November 15,1990, written policy simply memorialized the prior unwritten policy. The court found in addition that no inference of discriminatory intent was possible even if there had been no earlier policy, because the November 15 policy was non-diseriminatory on its face.

The court then considered Piraino’s claim under the now-classic burden-shifting method of proof established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later cases. It found that Piraino had established her prima facie case, noting that IOR conceded the first three elements: she was pregnant, her performance met IOR’s expectations, and she lost her job. For purposes of summary judgment, drawing all reasonable inferences in Piraino’s favor, the court also found that IOR effectively replaced Piraino, first by assigning training responsibilities to Hamby and McDaniel in December 1990, and then by hiring Coughlin in April 1991. Based on its earlier conclusion about the leave of absence policy, however, the court concluded that IOR had established legitimate, nondiscriminatory reasons for its actions that Piraino could not refute. The court believed that Piraino “voluntarily resigned” when she took her leave of absence, and that IOR’s business needs were insufficient to rehire her in February 1991. It therefore granted IOR’s motion for summary judgment.

III

We review the grant of a summary judgment de novo, taking the record in the light most favorable to the party opposing the motion. Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.1994). As we have often noted before, we apply this standard with particular care in employment discrimination cases, where intent and credibility are crucial issues. Id.

The PDA provides that “[w]omen affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to do work.” 42 U.S.C. § 2000e(k). As this Court noted in Troupe v. May Department Stores, 20 F.3d 734, 738 (7th Cir.1994), this does not impose an affirmative obligation on employers to offer maternity leave or to take other steps to assist pregnant workers, but it does require the employer to treat the employee as well as it would have if she were not pregnant. The question for us is therefore whether Piraino presented enough evidence to warrant a trial on her claim that she was intentionally discharged and then denied reinstatement because of her pregnancy and in violation of the Act.

At the outset, we address a rather surprising claim that counsel for IOR advanced at oral argument: namely, that this case isn’t about pregnancy discrimination at all because by the time the events in question occurred (the discharge and the refusal to reinstate) Piraino was not pregnant any more. Counsel pointed out, correctly enough, that pregnancy does not last forever, and IOR’s actions in early 1991 unquestionably occurred after the birth of Piraino’s baby — ergo, no pregnancy discrimination. This theory simply does not accurately reflect Piraino’s theory, which asserts in essence that, upon learning of her pregnancy in September 1990, IOR set out to find a way to dismiss her. IOR did so, Piraino continues, either by crafting its leave of absence policy so that she could not qualify, or by implementing its policy to accomplish her discharge, or both. This is therefore not a case in which the claim relates only to an employer’s refusal to hire (or reinstate) a mother with a young child, without a hint of any role that the earlier pregnancy played in the decision. Whether it succeeds or fails, it is clear that Piraino’s claim alleges pregnancy discrimination.

A plaintiff can prove pregnancy discrimination with either direct or circumstantial evidence of discriminatory intent. Troupe, 20 F.3d at 736. See also Mojica v. Gannett Co., 7 F.3d 552, 561 (7th Cir.1993) (en banc), cert. denied, — U.S. -, 114 S.Ct. 1643, 128 L.Ed.2d 363 (1994). Here, as the district court found, Piraino’s “direct” evidence was not enough to raise a genuine issue of fact about the existence of intentional discrimination. Her claims of her supervisors’ “cold attitude” toward her and an increase in her workload do not directly allege, and thus cannot directly prove, discriminatory intent. As is usually the case, she must rely instead on circumstantial evidence. In Troupe, this Court identified three types of circumstantial evidence of intentional discrimination: (1) a mosaic of evidence which, taken together, would permit a jury to infer discriminatory intent; (2) comparative evidence showing that employees similarly situated to the plaintiff other than in the protected characteristic received systematically better treatment; and (3) pretext evidence, where the plaintiff is qualified for and fails to receive the desired treatment, and the employer’s stated reason for the difference is unworthy of belief. Troupe, 20 F.3d at 736. See also Hill v. Burrell Communications Group, Inc., 67 F.3d 665, 669 (7th Cir.1995).

Piraino’s argument falls most comfortably into the first of these three categories: evidence of “suspicious timing, ambiguous statements oral or written, ... and other bits and pieces from which an inference of discriminatory intent might be drawn.” Troupe, 20 F.3d at 736. She asserts that IOR did not have any particular leave of absence policy prior to the November 15,1990 written statement, and she has offered concrete support for her assertion through her own deposition testimony and that of Derderian, Kreicker and Perlman. It is not disputed that Perl-man briefed Piraino on IOR’s vacation, sick leave and personal day policies at the time of the job offer, without saying anything about unpaid leaves of absence or maternity leave. Perlman reviewed the IOR employee handbook with Piraino on her first day of work, and not a word was said about either subject again, nor was anything included in the employee handbook. Furthermore, the responses Piraino received in September 1990 from the responsible IOR officials when she disclosed her pregnancy contained no reference to any unwritten policy, at a time when the relevance of any such policy had surely become apparent. To the contrary, Derderi-an, Kreicker and Perlman all used words that a jury could find indicated that the response to Piraino’s pregnancy would be ad hoc, not based upon some undisclosed “policy.”

This Court was faced with a similar situation in Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035 (7th Cir.1993), in a case brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. In Sarsha, the plaintiff claimed that he had been fired as a result of age and gender discrimination, while Sears alleged that it had fired him for violating an unwritten policy prohibiting employees from dating one another. Like IOR here, Sears tried to defend its summary judgment on the ground that the record was clear that the alleged policy existed. Sarsha showed, however, that Sears had no written policy prohibiting employee dating, and he presented substantial evidence in response to Sears’ motion for summary judgment that, if believed by a jury, would have shown that there was no unwritten policy either. This was enough, the Court found, to establish a genuine issue of material fact about the alleged policy: “[Wjhen the existence of a uniform policy or practice is in doubt, it cannot serve as a reason for discharging [the plaintiff].” Sarsha, 3 F.3d at 1040.

Insofar as IOR relies on the existence of a policy regarding unpaid leave and maternity leave that was in existence prior to the November 15, 1990 written policy, we conclude that Sarsha controls the outcome here. We cannot say whether a jury would believe Rreicker’s and Perlman’s testimony that an unwritten policy existed, or whether it would infer from the course of events and statements made to Piraino that IOR concocted a new policy that excluded Piraino for discriminatory reasons. All we can say is that Pirai-no came forward with enough evidence to defeat the summary judgment motion on this ground, and that the case must go forward through the next stages. (As we noted in Sarsha, this decision does not and cannot constrain the district judge with respect to any possible ruling on a motion for judgment as a matter of law at trial, because such a motion would have to be considered in light of the evidence actually produced at the trial.)

IOR also argued that Piraino “voluntarily quit” her job, both to show that she was not subject to an adverse employment action by reason of pregnancy and to distinguish her from other non-pregnant employees who, Kreicker testified, used the alleged unwritten policy prior to November 1990. Since the existence of an unwritten policy prior to November 15 is in dispute, IOR cannot rely on its alleged terms to prove that Piraino’s December 30 departure indisputably amounted to a “voluntary” resignation. Both the terms under which she left and her expectations, taken in the light most favorable to her, show that she thought she was taking a leave of absence. A jury could find that her call to Perlman in early January 1991 asking whether she needed to submit a written notice for a leave indicated clearly that she did not believe she had voluntarily resigned. Indeed, nothing in the November 15 policy itself would have alerted her to such draconian consequences for her brief absence. Although the policy appears to create an entitlement to an unpaid leave of absence and a maternity leave for employees who have worked for the company for a minimum of one year, the Unpaid Leave section also addresses the rights of employees who have been with the company for less than one year. It is striking that it does not say that any effort on the part of such an employee to take even a brief unpaid leave will be considered the equivalent of a “voluntary resignation.” Instead, it says that “[f]or employees that have been with the company for less than one year, efforts will be made to place the returning employee into the same or similar position if possible.” The only mention of “voluntary resignation” occurs in the maternity leave section, where it states that a failure to notify the company of the expected date of return to work will be considered as giving notice of voluntary resignation.

The evidence suggests that Piraino was not guilty of keeping IOR in the dark about her intentions to return to work. She called Perlman the day after her child was bom; she called again a few days later to make sure her paperwork was in order; she visited IOR six weeks after the birth; and she called again a few weeks later. Naturally, these events were affected by IOR’s position that she in fact had resigned, but at this stage we are required to look at the events as Piraino sees them. Viewed this way, IOR cannot escape a trial on the ground that Piraino’s actions amounted to a voluntary resignation from the company.

Finally, both IOR and the district court emphasize the facial neutrality of the leave of absence policy adopted on November 15. Far from treating pregnancy more unfavorably than other conditions that might necessitate an unpaid leave, it singles out maternity leave for a guaranteed period of a full six weeks leave, with no risk of having the employee’s position permanently filled with a replacement worker. If the policy itself is unobjectionable, then why should IOR suffer because of the timing of its adoption?

The answer to that question goes to the heart of the issue in a discrimination case. Facial neutrality is not enough to prevent a finding of discrimination, if the adoption of the policy was designed to discriminate against Piraino herself on the basis of her pregnancy. Here, Piraino has alleged just such a disparate treatment case. Her allegations could fit within both the first and the third types of proof identified in Trowpe. Using the “mosaic” approach, Piraino could show that IOR’s allegation that it had an unwritten policy regarding leave was untrue, that the timing of the adoption of the written policy was designed to take care of her case, and that other statements would support a jury finding of intentional discrimination on the basis of her pregnancy. Using the “pretext” approach, she could argue that IOR’s stated reason for firing her (or for construing her actions as a “voluntary resignation”) — its unwritten and written policy — was a pretext for its action, and that it really adopted the policy at the time it did only as a smokescreen or excuse for firing a pregnant employee. In either of these cases, we agree with the district court that Piraino satisfactorily established her prima facie ease, for the reasons stated by that court. Although IOR takes issue with the district court’s conclusion that the facts construed most favorably to Piraino show that IOR sought a replacement for Piraino, we agree with the district court that the evidence relating to Hamby, McDaniel and Coughlin was enough to establish the prima facie case.

The district court’s judgment for IOR is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.


author: FAGG, Circuit Judge.

text:
    Richard S. ZEITVOGEL, Appellant, v. Paul DELO, Appellee.
    No. 94-2976.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 10, 1995.
    Filed Feb. 28, 1996.
    Rehearing and Suggestion for Rehearing En Banc Denied May 1, 1996.

      Susan M. Hunt, Kansas City, MO, argued (Elena M. Franco, on the brief), for appellant.
    Frank A. Jung, Asst. Atty. Gen., Jefferson City, MO, argued for appellee.
    Before: FAGG, HENLEY, and BOWMAN, Circuit Judges.
   FAGG, Circuit Judge.

Richard S. Zeitvogel is on death row in Missouri for murdering Gary Wayne Dew in 1984. Zeitvogel appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 (1988), and we affirm.

Zeitvogel killed Dew while they were cellmates in the maximum security area of the Missouri State Penitentiary., A prison guard responding to a flashing emergency light over their cell found Dew dead on a mattress on the floor, and Zeitvogel alone with the body in the locked cell. Zeitvogel told the guard, “I killed my cellie.” During Zeitvo-gel’s trial for murdering Dew, the State of Missouri presented evidence that Zeitvogel strangled Dew from behind with a plastic-covered wire, then waited about three hours before activating the emergency light to summon help. Zeitvogel admitted killing Dew, but attempted to show he choked Dew with a sheet in self-defense after Dew attacked him. The jury rejected Zeitvogel’s self-defense theory and convicted Zeitvogel of capital murder.

At the penalty phase of the trial, the State introduced certified copies of Zeitvogel’s earlier convictions for capital murder, rape, armed robbery, assault, and jail break and escape. State witnesses explained Zeitvogel had received the earlier murder and assault convictions for fatally stabbing a fellow inmate and threatening a prison guard. Zeit-vogel presented no mitigating evidence at the penalty phase. His attorney made a plea for mercy and argued Dew had provoked Zeitvo-gel by assaulting him. After finding the presence of three aggravating circumstances, the jury returned a verdict recommending the death penalty. The district court denied Zeitvogel’s posttrial motions and sentenced Zeitvogel to death.

Zeitvogel unsuccessfully challenged his conviction and sentence on direct appeal, see State v. Zeitvogel, 707 S.W.2d 365 (Mo.) (en banc), cert. denied, 479 U.S. 871, 107 S.Ct. 243, 93 L.Ed.2d 168 (1986), and in Missouri postconviction proceedings, see Zeitvogel v. State, 760 S.W.2d 466 (Mo.Ct.App.1988), cert. denied, 490 U.S. 1075, 109 S.Ct. 2089, 104 L.Ed.2d 652 (1989). Zeitvogel then filed this habeas petition in the district court, raising thirty-two grounds for relief. While Zeitvo-gel’s federal habeas petition was pending, Zeitvogel filed a motion for state habeas relief and the Missouri Supreme Court denied the motion. See Zeitvogel v. Delo, No. 73714 (Mo. Apr. 30, 1991). Back in the federal district court, Zeitvogel moved for an evidentiary hearing and for the appointment of experts to help him present his claims. Concluding as a matter of law that all Zeitvo-gel’s claims were either procedurally barred or meritless, the district court denied Zeitvo-gel’s petition without holding a hearing or appointing experts. After the district court later refused to alter or amend the judgment, Zeitvogel brought this appeal.

Zeitvogel mainly contends the State’s failure to disclose certain hospital and prison records containing evidence of Zeitvogel’s low intelligence, learning disabilities, and epilepsy caused by organic brain damage (collectively “mental deficiencies”) violated Bra dy v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Ms trial counsel was ineffective in not obtaining and presenting evidence of these mental deficiencies during the guilt and penalty phases of Ms trial. Zeitvogel now wants a federal hearing to present the evidence and expert testimony about its legal significance.

Zeitvogel failed to present and preserve these contentions in state court. Zeitvogel failed to raise Ms Brady claim and his guilt-phase ineffective assistance claim in state court proceedings as Missouri law requires. See LaRette v. Delo, 44 F.3d 681, 687 (8th Cir.), cert. denied, — U.S. -, 116 S.Ct. 246, 133 L.Ed.2d 172 (1995). Although Zeitvogel raised Ms penalty-phase ineffective assistance claim and presented some supporting evidence in the state post-conviction hearing, Zeitvogel failed to present the additional supporting evidence that he now wants us to consider. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 8-12, 112 S.Ct. 1715, 1719-21, 118 L.Ed.2d 318 (1992) (petitioner must fully develop the supporting facts during the state court hearing); Battle v. Delo, 64 F.3d 347, 354 (8th Cir.1995) (same), cert. denied — U.S.-, 116 S.Ct. 1881, 135 L.Ed.2d 176 (1996). Because Zeitvogel failed to present Ms claims and additional supporting evidence in state court, we may not consider them in tMs federal habeas proceeding unless Zeitvogel shows both cause for Ms failure and resulting prejudice, or that a fundamental miscarriage of justice would otherwise result because he is actually innocent of capital murder or the death penalty. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2564-65, 115 L.Ed.2d 640 (1991); Keeney, 504 U.S. at 11, 112 S.Ct. at 1721; Joubert v. Hopkins, 75 F.3d 1232, 1244 (8th Cir.1996); Nave v. Delo, 62 F.3d 1024, 1032 (8th Cir.1995), cert. denied — U.S. -, 116 S.Ct. 1837, 134 L.Ed.2d 940 (1996).

We need not address the miscarriage of justice exception in tMs case because Zeitvo-gel did not assert actual innocence in Ms habeas petition, see Charron v. Gammon, 69 F.3d 851, 857 n. 6 (8th Cir.1995), and did not develop an actual innocence argument in Ms appellate brief, see Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir.1994). Instead, Zeit-vogel relies on the cause and prejudice exception to excuse Ms procedural default. The district court held tMs exception does not apply because Zeitvogel cannot show prejudice. In our view, Zeitvogel cannot show cause for Ms state court default; thus, we need not decide whether Zeitvogel suffered actual prejudice. Oxford v. Delo, 59 F.3d 741, 748 (8th Cir.1995), cert. denied — U.S.-, 116 S.Ct. 1361, 134 L.Ed.2d 528 (1996); see also Auman v. United States, 67 F.3d 157, 161-62 (8th Cir.1995) (Court of Appeals can affirm on any ground supported by record).

To establish cause, Zeitvogel must show something beyond the control of postconviction counsel, like State interference, actually prevented postconviction counsel from raising the claims and presenting the evidence in state court. Coleman, 501 U.S. at 753, 111 S.Ct. at 2566-67. Zeitvogel argues the State’s failure to produce the hospital and prison records requested by Zeitvogel’s trial attorney prevented his postconviction attorney from obtaining a sufficient factual basis to raise the defaulted Brady and guilt-phase ineffective assistance claims, and from presenting the additional evidence supporting the penalty-phase ineffective assistance claim. The unproduced records are Fulton State Hospital psycMatrie reports about Zeitvogel from 1975, Missouri State Pemtentiary Hospital records discussing Zeitvogel’s 1984 hospital stay, and a 1983 Missouri Department of Corrections re-classification analysis. Zeitvogel suggests postconviction counsel could not know the State failed to produce these documents because the documents were not uncovered until after the postconviction proceedings were finished, and posteonvietion counsel needed the documents to learn of Zeitvogel’s mental deficiencies and to show that trial counsel should have presented evidence at the guilt and penalty phases based on the deficiencies.

The State’s failure to produce the records does not excuse Zeitvogel’s procedural default. Lack of production by state officials is not cause excusing procedural default if the information the officials failed to pro-duee is reasonably available through other means. Barnes v. Thompson, 58 F.3d 971, 975 (4th Cir.), cert. denied, — U.S. -, 116 S.Ct. 435, 133 L.Ed.2d 350 (1995). When a petitioner can obtain the information contained in unprodueed documents through a reasonable and diligent investigation, the State’s failure to produce documents is not cause. Id.; see McCleskey v. Zant, 499 U.S. 467, 497-98, 111 S.Ct. 1454, 1471-73, 113 L.Ed.2d 517 (1991). Here, postconvietion counsel knew the records existed and the information contained in them was either known or reasonably available through means other than State production.

Postconvietion counsel knew the State had hospital and prison records about Zeitvogel. A psychiatrist who examined Zeitvogel before the postconvietion hearing, Dr. A.E. Daniel, told postconvietion counsel that Fulton State Hospital and the Missouri State Penitentiary Hospital had medical records about Zeitvogel from the 1970s and 1980s, and counsel acknowledges in his affidavit that he believed the state hospitals had all Zeitvogel’s psychiatric records. The re-classification analysis is just a standard prison record from Zeitvogel’s prison file, and it is common knowledge that prisons routinely keep records about inmates. Shaw v. Delo, 971 F.2d 181, 184 (8th Cir.1992), cert. denied, 507 U.S. 927, 113 S.Ct. 1301, 122 L.Ed.2d 690 (1993). Postconvietion counsel also knew much of the information about Zeitvogel’s mental deficiencies and general history contained in the unprodueed records because Zeitvogel’s mother told postconvietion counsel about Zeitvogel’s epilepsy, brain damage, and learning disabilities before the postcon-viction hearing. See Barnes, 58 F.3d at 975.

Postconvietion counsel could have obtained the state hospital and prison records if he had acted reasonably and diligently, but he made no effort to obtain them. Rather than requesting the records from the hospitals or Zeitvogel’s prison file, postconvietion counsel sent the Missouri Department of Corrections a vague letter asking for “the psychiatric report from [Zeitvogel’s] evaluation at the Missouri State Penitentiary.” In response to counsel’s letter, the State sent counsel one document, an updated psychiatric evaluation of Zeitvogel, conducted to give a current assessment of Zeitvogel’s condition. Post-conviction counsel should have immediately realized the updated evaluation was not one of the state hospital records Dr. Daniel had mentioned, because it was dated after counsel's letter requesting Zeitvogel’s records. Further, the updated evaluation confirmed counsel's belief that the State had other relevant records, because the evaluation referred to reports from earlier examinations of Zeit-vogel. The State did not tell counsel it had no other records on Zeitvogel, but sent the current evaluation with a cover letter stating, “We hope this information will suffice.” Postconvietion counsel took no steps to obtain more records. Zeitvogel’s appointed ha-beas counsel made the effort and obtained them “pretty easily” by filing a simple application for an order authorizing counsel’s access to the records.

If postconvietion counsel had acted reasonably and diligently, he could have raised the Brady and guilt-phase ineffective assistance claims, developed and presented the evidence contained in the unprodueed records and expert testimony based on them, and called family members and others acquainted with Zeitvogel in the state postconvietion hearing. In anticipation of the hearing, postconvietion counsel had Zeitvogel examined by Dr. Daniel. Although Dr. Daniel decided Zeitvogel did not have any mental impairment affecting his criminal behavior, Dr. Daniel’s opinion letter also stated Zeitvogel’s history suggested epilepsy and if counsel could confirm Zeit-vogel was epileptic, a neurological examination might be helpful. Postconvietion counsel knew from Zeitvogel’s mother that Zeitvogel had epilepsy, but did not consult a neurologist. Postconvietion counsel could have obtained the unprodueed records mentioned by Dr. Daniel several months before the post-conviction hearing and asked the doctor to re-evaluate Zeitvogel, or could have developed other expert testimony about the significance of the evidence in the records. Instead, postconvietion counsel told the court Dr. Daniel’s opinion was not helpful because the doctor said Zeitvogel’s epilepsy had no effect on ZeitvogePs criminal conduct. Rather than presenting expert testimony about Zeitvogel’s mental health, the postconvietion attorney agreed with the State prosecutor’s assessment that Zeitvogel had no psychiatric defects at the time of trial.

In our view, the blame for Zeitvogel’s procedural default falls squarely on Zeitvo-gel’s posteonvietion counsel rather than the State. At the time of the posteonvietion hearing, posteonvietion counsel either had or reasonably could have had a sufficient factual basis to assert the defaulted Brady and guilt-phase ineffective assistance claims, and could have presented the additional evidence supporting the penalty-phase ineffective assistance claim. See McCleskey, 499 U.S. at 498, 111 S.Ct. at 1472-73; Barnes, 58 F.3d at 975. Posteonvietion counsel knew about the records the State failed to produce, knew much of information they contained, and could have obtained the records if had he acted reasonably and diligently. Had counsel obtained the records, he could have developed any necessary expert testimony at the postconviction hearing. Indeed, in their habeas pleadings, Zeitvogel’s habeas counsel recognize posteonvietion counsel knew of .Zeitvogel’s mental deficiencies but failed to investigate and present them at the posteonvietion hearing. It is well-established that the ineffectiveness of state posteonvietion counsel cannot excuse procedural default. Sidebottom v. Delo, 46 F.3d 744, 751 (8th Cir.), cert. denied, — U.S. -, 116 S.Ct. 144, 133 L.Ed.2d 90 (1995). Posteonvietion counsel himself admits that after he interviewed Zeit-vogel and Zeitvogel’s mother, he realized “a reasonably competent [trial] defense . would [have] involve[d] investigation of [Zeit-vogel’s epilepsy and related deficiencies].” Nevertheless, posteonvietion counsel did not raise or fully develop the supporting facts for the now-defaulted ineffective assistance claims based on trial counsel’s failures during the guilt and penalty phases. We thus conclude the State’s failure to produce the hospital and prison records is not cause for Zeitvo-gel’s procedural default.

Besides the State’s failure to produce records, Zeitvogel contends the State’s issuance of execution warrants during his posteonvietion proceedings is cause for his default. Posteonvietion counsel obtained several stays of execution for Zeitvogel. Each time the Missouri Supreme Court granted a stay, the court postponed Zeitvo-gel’s execution for about thirty days and issued a new warrant for his execution, as the court commonly does in death penalty eases. Issuance of the warrants furthered the court’s legitimate interest in ensuring Zeitvogel’s posteonvietion proceeding was moving forward and was not being used solely as a delay tactic. Nevertheless, Zeit-vogel contends the warrants interfered with his ability to investigate and present claims at the posteonvietion hearing, because post-conviction counsel was forced to spend a great deal of his time on obtaining stays. Zeitvogel has failed to show the warrants prevented him from raising and presenting any claim in the posteonvietion proceedings, however. LaRette, 44 F.3d at 687.

The record does not support Zeitvogel’s assertion that his posteonvietion counsel was too busy handling execution warrants to discover and raise the defaulted claims or develop the additional evidence. It is relatively easy to move for a stay in Missouri. Zeitvo-gel’s posteonvietion counsel merely had to obtain a certificate from the posteonvietion court stating additional time was needed to prepare the case, and then present the certificate to the Missouri Supreme Court, which routinely granted Zeitvogel’s motions for stays. In his brief, Zeitvogel describes two occasions when his counsel had difficulty tracking down a judge to sign the necessary certificate, but the record shows counsel brought the close calls on himself by dashing to the courthouse at the last minute. Post-conviction counsel states in his affidavit, without providing any specifics, that his heavy workload made moving for stays especially burdensome. Even if posteonvietion counsel had limited time to spend on Zeitvo-gel’s case, Zeitvogel’s mother, Dr. Daniel, and the State gave posteonvietion counsel ample information about potential claims and available evidence, but posteonvietion counsel failed to follow through on the information handed to him on a silver platter.

Zeitvogel’s efforts to blame his procedural default on the State fañ as a matter of law. Thus, the district court properly refused to conduct an evidentiary hearing on the issue of cause, Oxford, 59 F.3d at 748, and on Zeitvogel’s defaulted Brady claim and his defaulted guilt-phase ineffective assistance claim, Pollard v. Delo, 28 F.3d 887, 888-89 (8th Cir.), cert. denied, — U.S. -, 115 S.Ct. 518, 130 L.Ed.2d 423 (1994). For the same reason, Zeitvogel is not entitled to a federal hearing to supplement the postcon-viction court’s record on his penalty-phase ineffective assistance claim. Battle, 64 F.3d at 354-55; Sidebottom, 46 F.3d at 750-51. Given that the district court properly refused to conduct an evidentiary hearing, we reject Zeitvogel’s contention that the district court should have appointed experts and investigators to help Zeitvogel present his claims.

Because Zeitvogel’s contentions are aimed at obtaining a federal hearing and supplementing the record from his state postcon-viction hearing, we do not believe Zeitvogel has asked us to review his penalty-phase ineffective assistance claim based solely on the limited evidence Zeitvogel raised during the state postconviction hearing. Instead, Zeit-vogel argues we should consider evidence outside the state postconviction record, and we have held we cannot. Even' if Zeitvogel had asked us to review his penalty-phase ineffective assistance claim based only on the state postconviction record, we would reject the claim because the state postcon-viction record does not show Zeitvogel was prejudiced by trial counsel’s failure to inform the jury about Zeitvogel’s mental deficiencies. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). At the postconviction hearing, Zeitvogel’s mother testified about Zeitvogel’s mental deficiencies. Zeitvogel, 760 S.W.2d at 471. Contrary to Zeitvogel’s contention, the state court that conducted the postconviction hearing and the Missouri Court of Appeals recognized that evidence about a defendant’s mental deficiencies may be mitigating. See id. In Zeitvogel’s case, however, “[t]he mitigating value of the evidence ... [was] speculative at best. Evidence presented at the [postconviction] hearing indicated [Zeitvogel’s] epilepsy could have no effect on his criminal behavior. No evidence was presented at the hearing to explain how his learning disabilities or brain damage could have affected his criminal behavior. [Zeitvogel] failed to establish how any of this evidence could have influenced the decision of the jury.” Id. Moreover, any mitigating force the evidence had was outweighed by damaging testimony that Ze-itvogel “exhibited rebellious and anti-social behavior in his childhood.” See id. In sum, considering only the evidence in the postcon-viction record, we would deny the penalty-phase ineffective assistance claim, and as we have already stated, any deficiencies in the postconviction record rest with Zeitvogel’s posteonvietion counsel, ante at 280-81.

Having disposed of the main thrust of Ze-itvogel’s appeal, we turn to his remaining contentions. At trial, Zeitvogel’s counsel presented the testimony of inmates Chester Bettis and Charles Stevenson to support Ze-itvogel’s claim that he killed Dew in self-defense. Bettis and Stevenson testified Dew and Zeitvogel were fighting in their cell on the day of Dew’s murder and Dew threatened to kill Zeitvogel. Zeitvogel now argues his trial counsel was ineffective for not calling several additional inmates to testify in support of Zeitvogel’s self-defense claim. Zeitvogel raised this ineffective assistance claim during his state postconviction proceedings, but postconviction counsel did not call the additional inmates as witnesses.

To show counsel was ineffective, Zeitvogel must show his attorney’s actions prejudiced him, that is, a reasonable probability that the jury would have reached a different verdict had it heard the additional testimony. Foster v. Delo, 39 F.3d 873, 877 (8th Cir.1994), cert. denied, — U.S.-, 115 S.Ct. 1719, 131 L.Ed.2d 578 (1995). We have reviewed the trial attorney’s testimony at the postconviction hearing and agree with the postconviction court that the additional inmates could have done little more than rehash the testimony given by Bettis and Stevenson. See Zeitvogel, 760 S.W.2d at 468, 470. Zeitvogel argues the inmates who did not testify could have strengthened his self-defense claim by testifying Dew had a motive to attack Zeitvogel: Dew believed Zeitvogel had informed prison authorities about Dew’s attack on another inmate in the prison chapel, and Dew wanted to get back at Zeitvogel for snitching on him. We will not consider this factual argument, however, because it was not presented to the state court. Flieger v. Delo, 16 F.3d 878, 884-85 (8th Cir.), cert. denied, — U.S.-, 115 S.Ct. 355, 130 L.Ed.2d 309 (1994). During the postconviction hearing, Zeitvogel’s postconviction counsel did not present any evidence about Dew’s motive to attack Zeitvogel, the chapel inci--dent, or any testimony from the inmates about revenge. Indeed, the prisoners’ affidavits discussing Dew’s motive are dated nearly seven years after the state postconviction hearing. We conclude Zeitvogel has not shown his trial counsel’s failure to call the additional witnesses prejudiced him. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Foster, 39 F.3d at 877.

Zeitvogel next contends the trial court violated due process by requiring Zeit-vogel to remain shackled while in the courtroom. Although Zeitvogel has complained of the shackling in other ways, Zeitvogel did not raise this due process argument in the state or district court, so we need not consider it. Jones v. Caspari, 975 F.2d 460, 461 (8th Cir.), cert. denied, 506 U.S. 924, 113 S.Ct. 345, 121 L.Ed.2d 261 (1992). The argument is meritless, anyway. The trial court acted well within its discretion in deciding restraints were necessary to prevent Zeitvogel from escaping and to protect others in the courtroom. At the time of trial, Zeitvogel had murder, rape, and assault convictions and had escaped from state custody once before. See Gilmore v. Armontrout, 861 F.2d 1061, 1071 (8th Cir.1988), cert. denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989). Further, the trial court’s decision to require restraints did not prejudice Zeitvogel. Even without seeing the shackles, the jury would have learned from the trial evidence that Zeitvogel was an inmate. See Estelle v. Williams, 425 U.S. 501, 507, 96 S.Ct. 1691, 1694-95, 48 L.Ed.2d 126 (1976). After all, Zeitvogel killed Dew in the maximum security area of the Missouri State Penitentiary. Because the trial court’s ruling requiring restraints was clearly proper, we reject Zeitvogel’s contention that trial counsel was ineffective for not objecting to the ruling. This ineffective assistance claim is procedurally barred as well because Zeit-vogel abandoned the claim during his state court appeal from the denial of postconviction relief. Nave, 62 F.3d at 1030.

Zeitvogel next challenges the penalty-phase jury instructions. Jury instruction eighteen stated Zeitvogel would not be eligible for the death penalty unless the jury found the existence of at least one of three aggravating circumstances, including that Zeitvogel had a substantial history of serious assaultive convictions, and that at the time of Dew’s murder, Zeitvogel had an earlier capital murder conviction. Zeitvogel contends this instruction improperly listed these two separate aggravating circumstances when only one was authorized by the controlling Missouri statute, Mo.Bev.Stat. § 565.012.2 (Supp.1983). See Zeitvogel, 707 S.W.2d at 368. During Zeitvogel’s direct appeal, however, the Missouri Supreme Court held all the aggravating circumstances were properly given under Missouri law. Id. We defer to the Missouri Supreme Court’s interpretation of its state law. Baker v. Leapley, 965 F.2d 657, 659 (8th Cir.1992).

Instructions eighteen and nineteen both mention Zeitvogel’s earlier murder conviction, and Zeitvogel argues this “duplication” violates the Eighth Amendment. We disagree. Instruction eighteen narrowed the class of capital murderers eligible for the death penalty. See Zant v. Stephens, 462 U.S. 862, 878, 103 S.Ct. 2733, 2743, 77 L.Ed.2d 235 (1983). Instruction nineteen instructed the jury to consider all the evidence in deciding whether Zeitvogel should actually receive the death penalty. The jury was entitled to consider Zeitvogel’s criminal record in making its sentencing determination. Id. at 888, 103 S.Ct. at 2748-49.

Because instructions eighteen and nineteen were proper, Zeitvogel’s trial counsel was not ineffective for failing to object to them. Further, Zeitvogel never raised this ineffective assistance issue in the Missouri courts. Habeas relief is not warranted in any event because the alleged error did not infect the entire trial and render it fundamentally unfair, nor was the alleged error a fundamental defect resulting in a complete miscarriage of justice. Baker, 965 F.2d at 659; Kennedy v. Delo, 959 F.2d 112, 118 (8th Cir.), cert. denied, 506 U.S. 857, 113 S.Ct. 168, 121 L.Ed.2d 116 (1992).

Finally, Zeitvogel contends the Missouri Supreme Court did not adequately review his sentence to ensure its proportionality to sentences imposed on defendants in similar eases, in violation of the Eighth and Fourteenth Amendments. The Missouri Supreme Court reviewed Zeitvogel’s sentence during his direct appeal, however, and addressed and decided the proportionality issue in its opinion. Zeitvogel, 707 S.W.2d at 370-71. Under our recent decisions, this is the end of our inquiry. See LaRette, 44 F.3d at 688; Foster, 39 F.3d at 882; Murray v. Delo, 34 F.3d 1367, 1376-77 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 2567, 132 L.Ed.2d 819 (1995).

In conclusion, Zeitvogel’s contentions fail. Because Zeitvogel cannot show cause for his procedural default, Zeitvogel is not entitled to a federal evidentiary hearing on his main claims. Zeitvogel’s remaining contentions are proeedurally barred or meritless. We thus affirm the district court’s denial of Zeit-vogel’s habeas petition.