On July 21, 2016, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in a lawsuit in which a federal employee alleged that his lack of promotion or salary increase was discriminatory on the basis of his race and sex, that he was subjected to unlawful retaliation for complaining about it, and that he was subjected to a hostile work environment. Poullard v. McDonald, Secretary, U.S. Department of Veterans Affairs, No. 15-1962 (7th Cir. 7/21/2016). In the Title VII disparate-pay context, the question is whether a plaintiff may show equal work for unequal pay based on his or her protected class. The federal employee’s pay discrimination claim failed because he did not identify a similarly situated employee outside of his protected classes who was paid more for the same work. It was difficult for the plaintiff to argue that his supervisor was similarly situated, especially where the supervisor had more work experience and a higher grade level.
The plaintiff also contended that his employer retaliated against him for exercising his protected rights under Title VII when he filed his EEO complaint. In the retaliation context, the requisite adverse employment action does not have to affect the terms and conditions of employment, but it must be harsh enough to dissuade a reasonable employee from engaging in protected activity. Unfulfilled threats of unspecified disciplinary action do not constitute adverse job action for purposes of a retaliation claim. However, an unfulfilled threat of discipline for protected activity may constitute relevant evidence of retaliatory intent behind a more concrete adverse action.
Harassment may constitute a materially adverse action for purposes of a retaliation claim if the offensive conduct is serious enough to discourage an employee from complaining about an unlawful employment practice. The incidents in question were not severe or pervasive enough to support a reasonable inference of a retaliatory animus for the plaintiff’s retaliation claim or to establish a hostile work environment for his racially hostile work environment claim.