7th Circuit Affirms Summary Judgment on Race Discrimination and Retaliation Claims

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.

2018-03-28T00:00:00-05:00March 28th, 2018|Tags: , , |

7th Circuit Affirms Summary Judgment on Race Discrimination and Retaliation Claims

On August 31, 2017, the 7th Circuit affirmed an order of summary judgment in favor of an employer in a federal lawsuit in which the plaintiff, a tenured university professor, alleged that the university discriminated against him because of his race, retaliated against him for complaining about discrimination, denied him due process of law, defamed him, and breached an employment contract created by an employee handbook. Grant v. Trustees of Indiana University, et al., No. 16-1958 (7th Cir. 8/31/2017). The question on summary judgment is whether the defendants have shown that there is no genuine dispute as to any material fact and are entitled to judgment as a matter of law. On appeal, the appellate court resolves all factual disputes and draws all reasonable inferences in favor of the non-moving party. However, he is only entitled to the benefit of inferences supported by admissible evidence, not those supported only by speculation or conjecture.

The 7th Circuit stated that as the “put up or shut up” moment in a lawsuit, summary judgment requires the non-moving party to respond to the moving party’s motion by identifying specific, admissible evidence showing that there is a genuine dispute of material fact for trial. A genuine issue of material fact sufficient to preclude summary judgment exists when there is sufficient evidence favoring the non-moving party to permit a trier of fact to make a finding for the non-moving party on any issue for which he bears the burden of proof. The plaintiff in this case did not meet that burden. He failed to cite admissible evidence of discrimination or retaliation. He argued that one person had a discriminatory motive that he imputed on the actual decision-maker to influence her decision to terminate his employment. This is the so-called “cat’s paw” theory of liability in employment discrimination cases. Under the “cat’s paw” theory of liability, when a biased subordinate who lacks decision-making authority uses a formal decision-maker as a dupe in a deliberate scheme to trigger a discriminatory employment action, the biased subordinate’s actions constitute evidence of discrimination. But this theory requires the plaintiff to demonstrate that the subordinate actually harbored a discriminatory animus against him, which he has not done. His conclusory, self-serving statements were not enough without specific evidence. He also failed to show that the subordinate’s input was a proximate cause of his employment termination. Thus, his “cat’s paw” theory failed. The plaintiff also argued that the defendant’s stated reasons for his termination were just pretext for employment discrimination. However, he offered no admissible evidence that the defendant’s proffered nondiscriminatory reasons were a lie to mask unlawful discrimination. When it comes to pretext, the question is not whether the employer’s stated reason was inaccurate or unfair, but whether the employer honestly believed the reason it has offered for the adverse employment action. The court is not a “super personnel department that second-guesses employers’ business judgments.” The plaintiff offered no evidence that the decision-maker did not honestly believe the reasons for his termination. Thus, the district court properly granted summary judgment on the plaintiff’s discrimination and retaliation claims.

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