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7th Circuit Affirms Summary Judgment on Title VII Retaliation Claim

On August 22, 2019, the 7th Circuit affirmed the district court’s order of summary judgment in favor of the defendant-employer in a Title VII retaliation lawsuit in which the plaintiff alleged that her former employer terminated her employment in retaliation for her complaints of sexual harassment. Rozumalski v. W.F. Baird & Associates, Ltd., No. 18-3586 (7th Cir. 8/22/2019). In this case it was undisputed that the plaintiff was sexually harassed by her direct supervisor. It was also undisputed that when she reported the sexual harassment to the employer, the employer promptly investigated and terminated the alleged harasser. At issue was whether the employer terminated the plaintiff in retaliation for her role in the alleged harasser’s termination. The 7th Circuit agreed with the district court, that no reasonable jury could find in favor of the plaintiff on her retaliation claims, stating that “while it may be possible for workplace harassment to haunt a victim’s ability to succeed long after the incident, the facts that [the plaintiff] has presented do not support a finding of retaliation.”

The issue on appeal was whether there was sufficient evidence to permit a reasonable jury to find that: (1) the plaintiff engaged in protected activity; (2) she suffered an adverse employment action; and (3) there was a causal connection between the two. Circumstantial evidence may establish the required causal connection. Relevant circumstantial evidence in a retaliation case may include suspicious timing, ambiguous statements of animus, evidence of disparate treatment, or evidence that the employer’s proffered reason for the adverse employment action was pretextual. The key question is whether a reasonable juror could conclude that there was a causal connection between the protected activity and the adverse action. The burden-shifting framework from McDonnell Douglas Corporation v. Green may be used as a method of proof to establish a Title VII retaliation claim. A plaintiff may do so by showing that: (1) she engaged in protected activity; (2) she performed her job according to her employer’s legitimate expectations; (3) despite her satisfactory job performance, the employer took an adverse job action against her; and (4) she was treated less favorably than similarly situated employees who did not engage in protected activity. If the plaintiff establishes these elements, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for the adverse employment action. If it does so, the burden of production returns to the plaintiff to show that the defendant’s proffered reason is pretext for retaliation. The ultimate burden of proof is at all times on the plaintiff in Title VII discrimination, retaliation, and sexual harassment claims.

The plaintiff encountered an insurmountable problem with timing. Negative performance feedback that she received predated any of her complaints of sexual harassment. By the time any decision-maker learned of her complaints, there were already four months of documented performance issues on her record that supported the employer’s legitimate, non-retaliatory reason for her termination. Whether a proffered reason is unfair, wrong, or unreasonable is not relevant to pretext analysis. An inquiry into pretext requires an evaluation of the honesty of the employer’s explanation, not its validity or reasonableness. The plaintiff’s admission that the employer honestly believed that her job performance was deficient was fatal to her retaliation claim.

7th Circuit Affirms Summary Judgment on Title VII Retaliation Claim

On November 29, 2018, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in a Title VII retaliation lawsuit in which the plaintiff, a federal employee, alleged that his employer retaliated against him for filing an EEO complaint. Lewis v. Wilkie, No. 18-1702 (7th Cir. 11/29/2018). The plaintiff’s employment had previously been terminated, but after a successful Equal Employment Opportunity (“EEO”) complaint, he was reinstated to his former position as a cook. He alleged that upon reinstatement, he was subjected to retaliation for his EEO activity through a variety of employment actions. The 7th Circuit agreed with the district court’s conclusion that none of the retaliatory actions alleged by the plaintiff constituted a materially adverse employment action.

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits an employer from retaliating against an employee for opposing or participating in an investigation of an unlawful employment practice. To prevail on a Title VII retaliation claim, a plaintiff must prove that: (1) he engaged in statutorily protected activity; (2) he suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse action. There was no dispute that the plaintiff engaged in statutorily protected activity by filing his EEO complaint. Formal EEOC charges are the most obvious form of protected activity. The plaintiff thus established the first element of his retaliation claim. However, the district court held that the plaintiff did not establish that he suffered a materially adverse employment action. For purposes of Title VII retaliation, a materially adverse job action does not necessarily have to affect an employee’s terms and conditions of employment, but it must be an action that a reasonable employee would find to be materially adverse, such that the employee would be dissuaded from engaging in the protected activity. The U.S. Supreme Court has stated that Title VII “does not set forth a general civility code for the American workplace.” Title VII’s anti-retaliation provision does not protect an employee against petty slights or minor annoyances that often take place at work and that all employees experience. The provision protects an employee not from all retaliation, but from retaliation that produces an injury or harm.

The plaintiff alleged that various incidents involving agency administrative failures, such as failure to provide a locker, a delayed paycheck and a short paycheck, constituted materially adverse actionable retaliation. However, the district court concluded, and the 7th Circuit agreed, that these were simply isolated administrative errors that were resolved and did not cause the plaintiff lasting harm or injury sufficient to dissuade a reasonable employee from engaging in protected activity. They instead represented the type of minor workplace grievances against which Title VII does not protect. The plaintiff also claimed that various actions taken by a supervisor, such as altering his work schedule, reprimanding him for leaving early and questioning him about his whereabouts after he had gone to the restroom, amounted to materially adverse job actions. However, these actions did not cause the kind of harm that would dissuade a reasonable employee from engaging in protected activity. He also alleged that a supervisor’s alleged instruction to his coworkers to monitor him were materially adverse. Again, the district court concluded, and the 7th Circuit agreed, that even if this monitoring did occur, there was no evidence that it caused the plaintiff harm or injury. The knowledge that supervisors are monitoring an employee’s location at work would not dissuade a reasonable employee from engaging in protected activity. Same result for his allegation that a supervisor instructed a coworker to solicit negative information about him from his coworkers. An implicit threat of discipline, which never materializes, is not an actionable adverse employment action. An unfulfilled threat of future discipline may be relevant evidence of a retaliatory intent behind a more concrete adverse job action, but it does not constitute a materially adverse job action in and of itself. Lastly, the plaintiff alleged that his 60-day performance review was an adverse employment action because he was not a probationary employee. But the review was a standard requirement for all employees in new positions, did not result in any injury or harm and, therefore, was not a materially adverse employment action.

It should be noted, however, that the plaintiff did not allege a hostile work environment claim, which is a separate claim that may be predicated upon retaliatory harassment and evaluated under a different legal standard. If the plaintiff had done so, the outcome may have been different.

7th Circuit Affirms Summary Judgment on Title VII Retaliation Claim

On August 14, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant-employer in a Title VII retaliation lawsuit filed by a Cook County correctional officer, who alleged that two County employees subjected her to unlawful racial and sexual harassment, and that division supervisors unlawfully retaliated against her for filing grievances by reassigning her to work alongside one of the alleged harassers. Emerson v. Dart, Sheriff of Cook County, Illinois, et al., No. 17-2614 (7th Cir. 8/14/2018). During the litigation, she posted a threat on a Facebook group that she would sue anyone who testified against her, for which she was sanctioned.

To state a retaliation claim under Title VII, a plaintiff must prove that she engaged in protected activity, suffered an adverse employment action, and that there is a causal connection between the two. While the filing of an internal complaint with an employer may constitute protected activity under Title VII, the complaint must state that the discrimination occurred because of the employee’s sex, race, national origin, or some other protected class. The plaintiff’s second grievance did not constitute protected activity because it did not allege that she was harassed because of her race, sex, or other protected characteristic. Although her first grievance did qualify as protected activity, her retaliation claim based on her first grievance failed because she did not present evidence that the alleged retaliators had actual knowledge of her first grievance and, therefore, she could not establish that they harbored the retaliatory motive necessary for a Title VII retaliation claim.

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