On February 11, 2015, the 7th Circuit affirmed summary judgment on an FMLA retaliation claim. Carter v. Chicago State University, et al., No. 13-3367 (7th Cir., 2-11-2015). The plaintiff, an Associate Professor, alleged that he was not promoted to a Department Chair position in retaliation for taking a leave of absence under the Family and Medical Leave Act. It is unlawful for an employer to retaliate against an employee for taking an FMLA leave, but the employee must prove a causal connection between the leave and adverse job action to succeed on an FMLA retaliation claim. Close timing between the leave and adverse action, coupled with other evidence, may raise an inference of retaliation. But a seven-month delay between the protected activity and employment action, without other evidence, militates against a retaliation claim, by breaking the causal chain.
This case also involves a peculiar pretext issue. When asked why he did not appoint the Professor to the open position, the decision-maker evidently replied “no reason;” I just appointed the other person. However, this was not found to be pretext for retaliation because the plaintiff failed to establish that the reason (or non-reason, in this case) was unworthy of belief. To demonstrate pretext in an employment discrimination or retaliation case, the employee must prove that the employer’s proffered reason for the challenged employment decision was phony.
It should be noted that under the indirect burden-shifting method of proof, once the employee meets the elements of his or her discrimination or retaliation claim, the burden shifts to the employer to proffer or produce a legitimate, non-discriminatory or non-retaliatory reason; and, if the employer does so, the burden shifts back to the employee to prove that the employer’s stated reason is pretext for discrimination or retaliation. If the employer fails to come forward with any reason or explanation for the employment action in question, the employee is not required to prove pretext. Thus, when the employer’s stated reason is “no reason,” the employer has actually failed to offer any reason; and the employee shouldn’t have to prove pretext.