7th Circuit Affirms Summary Judgment on Title VII Sex Discrimination and Retaliation Claims

On December 14, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant-employer in a Title VII sex discrimination and retaliation lawsuit. Terry v. Gary Community School Corporation, No. 18-1270 (7th Cir. 12/14/2018). The plaintiff worked as a teacher and a Principal for thirty-five years. The defendant closed the elementary school where the plaintiff had served as Principal due to declining enrollment, and reassigned her to serve as the Assistant Principal at another elementary school. She considered this a demotion. In addition, the defendant also selected a male employee over the plaintiff for a separate promotion, even though the plaintiff had earned the highest ranking of all the applicants from the interviewers. In her lawsuit, the plaintiff alleged sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).

Title VII makes it unlawful for an employer to discriminate against any employee on the basis of sex. To survive summary judgment and proceed to trial, a plaintiff must present evidence that would permit a reasonable jury to conclude that the defendant-employer took a materially adverse employment action against her because of her sex. The court must consider all of the evidence as a whole. The plaintiff argued that the defendant discriminated against her on the basis of her sex by demoting her to Assistant Principal and by failing to promote her because of her sex. If she established the elements of these claims, the burden shifts to the employer to present a legitimate and nondiscriminatory reason for the adverse job action, and if it does so, the burden shifts back to the plaintiff to establish pretext.

The plaintiff alleged that the demotion from Principal to Assistant Principal constitutes an adverse employment action because it resulted in a lesser title, diminished job responsibilities, and less prestige. An employer’s employment action is materially adverse if it is more disruptive than a mere inconvenience or an alteration of job responsibilities. A change in pay and benefits is materially adverse, for instance. Other examples of materially adverse employment actions include termination of employment, preventing an employee from using the skills she developed and in which she is trained, such that those skills atrophy and her long-term career prospects are reduced, or changing an employee’s work conditions in a way that subjects her to a humiliating hostile work environment. The lower court found that while the title of Principal is more prestigious than that of Assistant Principal, many of the duties and required skills of principals and assistant principals are the same. The 7th Circuit concluded that she did not present any evidence that the transfer severely diminished her job responsibilities, that her long-term career prospects were hampered by the change, or that the new work environment was humiliating. Thus, the 7th Circuit agreed that the transfer of the plaintiff from Principal to Assistant Principal was not a materially adverse employment action. Moreover, even if it were, there was no evidence of a discriminatory purpose behind the transfer, and the plaintiff did not present enough evidence to raise any factual issue that the defendant’s reason was pretextual.

The 7th Circuit also ruled against the plaintiff on her failure to promote claim. An employer’s decision to not promote an employee is discriminatory when the employee establishes that she was a member of a protected class, she was qualified and applied for the position, the employer rejected her application, and the employer promoted someone outside of her protected class to the position, who was not more qualified than the employee. The defendant did not dispute that the plaintiff can establish these elements, but instead argued that the non-promotion decision was not sex-based, and that it selected the male candidate because of his experience. The plaintiff contended that the defendant’s proffered reason was pretext for gender discrimination. The 7th Circuit disagreed with her argument, that a suspicious chronology of events in connection with the selection process raised an inference of pretext. The chronology alone was insufficient to raise an issue as to whether the defendant’s reason for its decision was disingenuous.

The plaintiff’s retaliation claim also did not survive. A Title VII retaliation claim occurs when an employee engages in protected activity and the employer takes an adverse job action against the employee because of her protected activity. It was undisputed that the plaintiff engaged in protected activity by filing a charge of discrimination with the EEOC, and that the defendant took an adverse employment action against her by not renewing her contract. At issue was the existence of the required causal connection between the plaintiff’s protected activity and the non-renewal of her contract. The plaintiff contended that the defendant terminated her employment in retaliation for her protected activity of filing her EEOC charge. The defendant terminated her less than one month after she received her right-to-sue notice from the EEOC. She argued that this temporal proximity, in conjunction with the longevity of her tenure and her consistently positive performance evaluations supports an inference of retaliation. The defendant argued that the undisputed evidence established that it was required to close schools due to declining enrollment, which in turn caused the downsizing that led to the plaintiff’s employment termination. The 7th Circuit held that given the reasonable, non-suspicious explanations for the timing between the protected activity and adverse job action, there was insufficient evidence to create a genuine dispute of material fact as to whether the defendant unlawfully retaliated against the plaintiff.

On June 20, 2017, the 7th Circuit affirmed an order of summary judgment in favor of a defendant employer in a federal lawsuit in which the former employee plaintiff alleged that the employer discriminated against her on the basis of her sex, female, and retaliated against her on account of her prior complaints of employment discrimination, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). Nicholson v. City of Peoria, Illinois, et al., No. 16-4162 (7th Cir. June 20, 2017). In this case the plaintiff, a Peoria police officer, alleged that she was not reappointed to a certain position because of her sex, in violation of Title VII. The 7th Circuit, in its opinion, reiterated that it has “entirely done away with the distinction between ‘direct’ and ‘indirect’ evidence and methods of proof for Title VII discrimination claims….Evidence is evidence. Relevant evidence must be considered and irrelevant evidence disregarded, but no evidence should be treated differently from other evidence because it is labeled ‘direct’ or ‘indirect’.” The proper legal standard at the summary judgment stage for a Title VII employment discrimination claim “is simply whether the evidence would permit a reasonable factfinder to conclude that [the plaintiff’s] sex caused her reassignment.”

The record lacked any evidence to contradict the employer’s position that the other officer was chosen over the plaintiff because of her better interview performance. Absent any admissible evidence that suggested that the employer’s explanation was a pretext for sex discrimination, the employer was entitled to summary judgment on the gender discrimination claim. The plaintiff also alleged that her reassignment was retaliation for having made claims of discrimination in the past. To survive summary judgment on a claim of unlawful retaliation, the plaintiff must produce sufficient evidence for a jury to conclude that: (1) she engaged in statutorily protected activity; (2) the defendants took a materially adverse employment action against her; and (3) there was a but-for causal connection between the two. The plaintiff’s claim that she didn’t keep the position she desired because she had made complaints of discrimination against the Department also failed. There was no evidence that the selection committee chose the other officer over the plaintiff in retaliation for her prior discrimination claims. The timing–more than a year between her protected activity and the adverse job action–instead of raising an inference of retaliation, actually weakened her retaliation claim. Thus, the plaintiff did not present any admissible evidence that would permit a reasonable jury to conclude that she was reassigned to patrol because of her gender or her prior complaints of discrimination.