On March 14, 2018, the 7th Circuit affirmed an order of summary judgment in a Section 1981 lawsuit in which the plaintiff alleged race discrimination and retaliation. Madlock v. WEC Energy Group, Inc., No. 17-1278 (7th Cir. 3/14/2018). The plaintiff alleged that she was transferred from one section of her employer to another as a result of racial discrimination. She also alleged that the employer retaliated against her by disciplining her after she filed an internal discrimination complaint against her former supervisor. The 7th Circuit stated that “[w]e recently cleaned out the ‘rat’s nest of surplus tests’ that plagued our case law on the subject of race discrimination.”
The inquiry now is whether the evidence would permit a reasonable fact-finder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action. An adverse employment action is some quantitative or qualitative change in the terms or conditions of an employee’s employment that is more than a mere subjective preference. These changes can involve an employee’s current wealth, her career prospects, or changes to work conditions that include humiliating, degrading, unsafe, unhealthy, or otherwise significant negative alteration in the workplace. However, not everything that makes an employee unhappy is an actionable adverse employment action. A transfer involving no reduction in pay and no more than a minor change in working conditions does not constitute an actionable adverse job action. In this case, the plaintiff’s transfer did not involve any pay cut, loss of benefits, or diminished job title. While a nominally lateral transfer that significantly reduces an employee’s career prospects by preventing her from using her skills and experience may constitute a materially adverse employment action, those factors were not present in this case. And her arguments that co-workers perceived the transfer as humiliating, and the equivalent of a demotion, were unavailing. The subjective perception of others that an action is humiliating is insufficient, on its own, to raise the action to the level of an adverse employment action. The transfer effected no material change in the plaintiff’s employment and, therefore, was not an adverse employment action. Absent the required element of an actionable adverse employment action, the plaintiff’s discrimination claim failed.
To prevail on a retaliation claim under the direct method of proof, a plaintiff must demonstrate that: (1) she engaged in protected activity; (2) she suffered a materially adverse employment action; and (3) there was a causal link between the protected activity and adverse job action. Alternatively, under the indirect method of proof, a plaintiff must show that: (1) she engaged in protected activity; (2) she suffered a materially adverse employment action; (3) she was meeting her employer’s legitimate job expectations; and (4) she was treated less favorably than similarly-situated employees who did not engage in protected activity. If the plaintiff establishes these elements under the indirect method, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for the subject employment action. Then the burden shifts back to the plaintiff to prove that the employer’s proffered reason is pretext for retaliation. In this case, the plaintiff’s retaliation claim failed under the indirect method because she did not identify a similarly-situated co-worker who did not engage in protected activity and was treated more favorably than her by the employer under similar circumstances. Valid comparators must be directly comparable in all material respects. The plaintiff’s retaliation claim also failed under the direct method because she did not establish a causal connection between her protected activity and any alleged adverse job action.