On January 26, 2016, the 7th Circuit affirmed summary judgment on race and national origin discrimination as well as retaliation claims alleged under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), the Civil Rights Act of 1866 (“Section 1981”), and the Illinois Human Rights Act (“IHRA”). Bagwe v. Sedgwick Claims Management, No. 14-3201 (7th Cir., 1/26/2016). The plaintiff alleged that the employer paid her a comparatively low salary on account of her race and national origin, and terminated her for discriminatory and retaliatory reasons. Title VII makes it unlawful for an employer to discriminate against an employee because of his or her race, color, religion, sex, or national origin. Section 1981 makes it unlawful for an employer to discriminate on the basis of race or national origin when making and enforcing contracts. The IHRA makes it unlawful for an employer to take adverse job action against an employee on the basis of unlawful discrimination or citizenship status.

The plaintiff argued that there was enough circumstantial evidence for a jury to conclude that she was terminated because of her race and national origin. She raised evidence of pretext, comparative evidence, and anecdotal evidence of derogatory remarks. She claimed that the employer’s stated reason for her termination, alleged poor leadership skills, was just pretext for discrimination and retaliation, which essentially means that the proffered reason is unworthy of belief. To establish pretext, a plaintiff must identify weaknesses, implausibility, inconsistencies or contradictions in the employer’s reason that render it unworthy of credence. It is not enough that the reason is mistaken or a product of poor business judgment. The reason must be contrived or phony to amount to pretext. One way of establishing pretext is by demonstrating that the employer has given shifting explanations for the employment decision in question. Another way is by showing that the employer attempted to justify a discharge after the fact, which can suggest a discriminatory motive. An employer’s failure to follow its own policies or procedures may also establish pretext. The plaintiff argued that the employer’s reason was unworthy of belief because she met her objective performance goals. However, the 7th Circuit concluded that even if that were the case, the employer’s reason, which involved her management style, as opposed to her objective goals, was not pretext for discrimination or retaliation.

The plaintiff also attempted to buttress her case with comparative evidence of similarly situated employees not in her protected classes receiving systematically better treatment. Comparative evidence of disparate treatment is usually used in the indirect burden shifting method of proof, but it can also be relevant under the direct method of proof. Whether employees are similarly situated is often a bone of contention in employment law litigation. In this case, the 7th Circuit concluded that the plaintiff did not establish that the other employees were similarly situated to her.

The plaintiff also contended that derogatory remarks related to her protected classifications were evidence of discriminatory intent. Comments or remarks can raise an inference of discrimination when they are made by the decision-maker, around the time of the adverse employment decision, and in reference to the employment action. The context of the remark is also important. The 7th Circuit concluded that some of the comments were unrelated to work and made outside of the workplace, while another was a “closer call,” but was not enough in itself to support a claim of discrimination under the direct method of proof.

The 7th Circuit reached the same result under the indirect method of proof, because the plaintiff did not identify similarly situated employees not in her protected classes who were treated more favorably than her and, therefore, she could not establish a prima facie case of discrimination.