On December 11, 2017, the 7th Circuit affirmed an order of summary judgment in a sex discrimination lawsuit in which the plaintiff alleged that her former employer fired her on the basis of her gender, in violation of Title VII. Milligan-Grimstad v. Morgan Stanley, et al., No. 16-4224 (7th Cir. 12/11/2017). The 7th Circuit agreed with the district court, that the defendant terminated the plaintiff on the basis of her job performance. To survive a motion for summary judgment in a Title VII employment discrimination case, a plaintiff must present evidence that would permit a reasonable jury to conclude that the plaintiff’s race, ethnicity, sex, religion or other proscribed factor caused the discharge. In this case, the plaintiff failed provide a sufficient evidentiary basis for a jury to conclude that her sex influenced the decision to terminate her employment.
The plaintiff contended that three factors suggested that she was terminated because of her sex: (1) misapplication of company policy; (2) disparate treatment; and (3) suspicious timing. Each position was rejected by the district court and the 7th Circuit. As long as the plaintiff’s gender did not influence the termination decision, the decision would not violate Title VII, even if it was made by misapplying company policy. The plaintiff’s contention that the defendant did not terminate similarly situated male employees for similar conduct also failed. Whether an employer’s treatment of one employee suggests that it discriminated against another employee depends on whether the two employees engaged in similar conduct under similar circumstances without differentiating circumstances. The male co-worker identified by the plaintiff had no comparable disciplinary history and, therefore, the defendant’s decision to retain him after he engaged in similar conduct did not suggest that it fired the plaintiff because of her gender. Moreover, the defendant fired another male co-worker, who did have a disciplinary history, for the same conduct, which bolstered its position that it terminated the plaintiff for legitimate, non-discriminatory reasons. The plaintiff’s suspicious timing argument was also of no avail. Under certain circumstances, suspicious timing may reveal a discriminatory intent, but not where there are reasonable, non-suspicious explanations for the timing of the termination, as there were in this case.