7th Circuit Affirms Summary Judgment in Title VII Retaliatory Failure-to-Promote Case

On July 13, 2015, the 7th Circuit affirmed summary judgment in favor of the defendant employer in a lawsuit in which the plaintiffs alleged that they were denied promotion in retaliation for their protected activity of opposing race discrimination, in violation of Title VII. Burks, et al. v. Union Pacific Railroad Company, No. 14-2707 (7th Cir. July 13, 2015). Title VII of the Civil Rights Act of 1964, as amended, prohibits an employer from taking tangible, materially adverse employment action against an employee in retaliation for his or her statutorily protected activity of opposing an unlawful employment practice. Voicing opposition to or complaining about employment discrimination based on race constitutes protected activity. The failure to promote an employee constitutes adverse employment action. An employee may prove a claim for retaliatory failure-to-promote through the direct or indirect method of proof.

Under the direct method, the plaintiff may prove retaliation through “smoking gun” evidence, usually some sort of admission of retaliatory intent, or through a combination of circumstantial evidence. Under the indirect method, the plaintiff must establish that he or she: (1) engaged in protected activity; (2) applied and was qualified for the position; (3) was rejected for the position; and (4) the employer gave the position to another employee who did not engage in protected activity and was not better qualified than the plaintiff. The employer, in turn, is required to state a legitimate, non-retaliatory reason for its employment decision; and then the employee must prove that the employer’s stated reason is just pretext for retaliation.

The plaintiffs contended that they were denied the opportunity to take a test that was required in order to be considered for promotion, in retaliation for their complaints of discrimination. However, the plaintiffs failed to produce evidence that they were actually denied the opportunity to take the promotion test. Accordingly, summary judgment was appropriate, and the plaintiffs’ retaliation claims will not proceed to a jury trial.