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7th Circuit Affirms Summary Judgment on Title VII Discrimination, Retaliation and Hostile Work Environment Claims

On October 30, 2018, the 7th Circuit affirmed an order of summary judgment in favor of the defendant-employer in a Title VII lawsuit in which the plaintiff, a former dental assistant at a Veterans Affairs dental clinic, alleged that he was discriminated against based on his gender (male) and race (Hispanic), he was retaliated against for filing EEO complaints, and he faced a hostile work environment. Abrego v. Wilkie, Secretary of Veterans Affairs, No. 17-3413 (7th Cir. 10/30/2018). Under Title VII of the Civil Rights Act of 1964 (“Title VII”), it is unlawful for an employer to discriminate against an employee based on race, color, religion, sex, or national origin. To prevail on a Title VII employment discrimination claim, a plaintiff-employee must prove three elements: (1) she is a member of a protected class; (2) she has been subjected to an adverse employment action; and (3) that the employer took the adverse job action on account of the employee’s membership in the protected class.

The applicable legal standard is whether the evidence, in its totality, would permit a jury to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the employment termination or other adverse employment action. Usually, the burden-shifting approach established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) is used as the method of proof, but that is not the only way for a court to assess circumstantial evidence of discrimination. The 7th Circuit concluded that the plaintiff in this case presented no evidence to support an inference that he was suspended and terminated as a result of race or sex discrimination. Rather, he was suspended and terminated for legitimate, non-discriminatory reasons relating to issues of insubordination. The plaintiff argued that similarly situated employees were treated more favorably, on the theory of disparate treatment–that if an employer takes an action against one employee in a protected class, but not against another outside that protected class, a court may infer unlawful discrimination. However, the proposed comparator employees must be sufficiently similarly situated so that an inference of discrimination from the differential treatment is valid and sound. In this case, the 7th Circuit concluded that the plaintiff’s proposed comparators were not in the same boat as the plaintiff and that therefore, his disparate treatment argument failed. The evidence taken as a whole would not permit a reasonable jury to conclude that the plaintiff’s race or sex caused his suspension and termination.

The plaintiff’s retaliation claim also did not survive summary judgment. To survive a motion for summary judgment on a Title VII retaliation claim, an employee must present sufficient evidence for a reasonable jury to conclude that: (1) she engaged in statutorily protected activity; (2) the employer took a materially adverse employment action against her; and (3) there was a but-for causal connection between the two. The essential question is whether the evidence as a whole permits a reasonable inference that retaliatory motivation caused the adverse employment action. The plaintiff alleged that he was retaliated against for filing three EEO complaints, which constitutes protected activity. However, he failed to present evidence that would permit a reasonable jury to infer that his filing of the EEO complaints caused his suspension and termination. In a Title VII retaliation claim, causation may be established by circumstantial evidence, which includes suspicious timing, a pretextual explanation for the termination, evidence of disparate treatment, or any other evidence from which an inference of retaliatory intent may be drawn. However, the plaintiff failed to present sufficient circumstantial evidence to allow a reasonable jury to conclude that but-for his filing of the EEO complaints, he would not have been suspended or terminated. The evidence indicated that to the contrary, he was terminated for many legitimate, non-retaliatory reasons. He presented no evidence that those reasons were pretextual. And his disparate treatment approach failed because his proposed comparators were not sufficiently similarly situated.

The plaintiff’s final claim, hostile work environment, also failed. He alleged that the VA created a hostile work environment. Title VII makes it unlawful for an employer to require an employee to work in a discriminatory hostile or abusive environment. When the workplace is permeated with discrimination, intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the employee’s employment and create an abusive working environment, Title VII is violated. To survive a motion for summary judgment on a hostile work environment claim, a plaintiff must present evidence that: (1) the work environment was both objectively and subjectively offensive; (2) the harassment was based on the plaintiff’s membership in a protected class or in retaliation for protected activity; (3) the conduct was severe or pervasive; and (4) there is a basis for employer liability. A court considers the totality of the circumstances, including factors such as the frequency of the improper conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee’s work performance. In support of his claim, the plaintiff contended that his supervisors were short tempered, hostile, unfairly critical, and disrespectful, and that he was subjected to excessive monitoring. However, these conditions are not objectively offensive, severe, or pervasive. They do not create a workplace permeated with discriminatory intimidation, ridicule, and insult. The plaintiff also failed to present sufficient evidence that the alleged harassment was based on his race or sex, or in retaliation for filing his EEO complaints. Thus, the district court’s entry of summary judgment on the plaintiff’s hostile work environment claim was also proper.

7th Circuit Affirms Summary Judgment on Title VII Discrimination, Retaliation and Hostile Work Environment Claims

On March 18, 2016, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in a Title VII lawsuit in which the plaintiff sued the U.S. Department of Housing and Urban Development (“HUD”) for workplace discrimination on the basis of race, retaliation for filing prior EEOC charges, and hostile work environment. Boss v. Castro, Secretary of Housing and Urban Development, No. 14-2996 (7th Cir., 3/18/2016). The plaintiff was employed by HUD as a general engineer for nearly a decade. During his employment, he filed one complaint of sex, race and age discrimination with the EEOC, followed by another complaint of race discrimination and retaliation. In his federal lawsuit, the plaintiff claimed that various negative job actions were taken against him in retaliation for his EEOC complaints and because of his race. The district court granted summary judgment on the grounds that the incidents of which he complained did not constitute adverse employment actions, he was not subjected to disparate treatment, and he was not subjected to a hostile work environment.

Title VII prohibits employment discrimination based on a number of protected categories, including race, and makes it unlawful for an employer to retaliate against an employee for complaining about prohibited discrimination. However, without materially adverse employment action, there can be no viable discrimination or retaliation claim. In a discrimination case, a materially adverse employment action includes a significant change in employment status, in terms of income, career prospects, or altered work conditions that are humiliating or degrading. The incidents that the plaintiff complained about–a performance improvement plan, a requirement that he substantiate his time off, and a rescheduled telework day–were not sufficiently adverse employment actions and, therefore, his discrimination claim failed. For a retaliation claim, a materially adverse job action is something that would deter a reasonable employee from making or supporting a charge of discrimination. The matters raised by the plaintiff, including a downgraded performance evaluation without any tangible job consequence, did not meet the adverse employment action standard necessary to support a retaliation claim.

Title VII also prohibits an employer from subjecting an employee to a hostile work environment where: (1) the work environment was both objectively and subjectively offensive; (2) the harassment was based on membership in a protected class or in retaliation for protected activity; (3) the conduct was severe or pervasive; and (4) there is a basis for employer liability. A court will consider hostile work environment claims based on the totality of the circumstances, including factors such as the frequency and severity of the harassment, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee’s ability to perform his or her job. The plaintiff did not satisfy this standard. There was no evidence that alleged racial comments were meant to intimidate him, threaten him, or were severe or pervasive. The workplace did not consist of discriminatory ridicule, intimidation, or insult; and there was no evidence that the plaintiff’s supervisors acted against him for any prohibited reason. It is worth noting that in its decision, the 7th Circuit specifically recognized a cause of action for a hostile work environment based on retaliation.

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