Stephen A. Glickman, P.C.
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7th Circuit Reverses Summary Judgment for Employer on Title VII Retaliation Claim

On July 26, 2019, the 7th Circuit reversed the district court’s entry of summary judgment in favor of the defendant-employer in a Title VII retaliation lawsuit, in which the plaintiff, a former temporary employee, alleged that the employer refused to hire him permanently in retaliation for his complaints of discrimination. Stepp v. Covance Central Laboratory Services, Inc., No. 18-3292 (7th Cir. 7/26/2019). Based on the record, a reasonable jury could conclude that the employer refused to promote the temporary employee to permanent status because of and in retaliation for his protected activity of filing a charge of discrimination with the EEOC.

In order to establish a retaliation claim, a plaintiff must demonstrate that his protected activity caused an adverse employment action. The plaintiff’s charge of discrimination constitutes statutorily protected activity. The employer’s refusal to promote him after the expiration of his temporary term of employment constitutes adverse job action. The 7th Circuit no longer recognizes a distinction between direct and indirect evidence in retaliation cases. The plaintiff presented evidence that the employer customarily promotes satisfactory temporary workers to permanent status; and that similarly situated temporary workers who did not engage in protected activity were promoted. The only difference between the plaintiff and the temporary workers who were promoted was his protected activity. In addition, a supervisor had told the plaintiff that the employer refused to make him permanent because the team leader, against whom the plaintiff had filed the charge of discrimination, complained about him. From this evidence, a reasonable jury could find that the employer did not promote the plaintiff in retaliation for his protected activity.

Suspicious timing also supported the plaintiff’s retaliation claim. An interval of only weeks between the protected activity and the adverse job action is brief enough to raise an inference of retaliation. In this case, the plaintiff filed his EEOC charge of discrimination the same month in which the employer refused to make him a permanent employee. When suspicious timing is accompanied by corroborating evidence of retaliation, summary judgment is inappropriate. In addition to the suspicious timing, retaliation could also be inferred from the evidence of disparate treatment. Moreover, the employer’s only proffered explanation for not promoting the plaintiff “buttresses rather than undercuts an inference of retaliation.” If an employer’s proffered reason for an adverse employment action is unworthy of credence, it “can be quite persuasive evidence that the true reason is unlawful.” The employer’s only explanation for its refusal to make the plaintiff permanent was a hiring freeze. However, the freeze occurred two months after the time when he should have been promoted. Thus, the employer’s insistence that it did not promote the plaintiff because of the freeze, under these circumstances, could support a finding that retaliation was the employer’s true motive for not making him permanent. Finally, the supervisor’s statement that the employer did not make the plaintiff permanent because the team leader had complained about him also supports an inference of retaliation. The team leader’s complaint about the plaintiff was so flimsy that a jury could conclude that the plaintiff’s charge of discrimination against the team leader is what “truly irked him,” and motivated the employer to refuse to promote the plaintiff. A plaintiff can cast doubt on an employer’s proffered reason with evidence that the explanation is insufficient to motivate the adverse job action. The combination of evidence in this case warranted reversal of the summary judgment. The case will proceed to a jury trial.

7th Circuit Reverses Summary Judgment for Employer on Title VII Retaliation Claim

On October 15, 2018, the 7th Circuit reversed an order of summary judgment that the district court had entered in favor of the defendant-employer in a Title VII lawsuit in which the plaintiff alleged that her former employer unlawfully terminated her employment in retaliation for her protected activity of filing an internal complaint of sexual harassment with human resources against a manager who had sexually harassed another employee. Donley v. Stryker Sales Corporation, No. 17-1195 (7th Cir. 10/15/2018). The 7th Circuit held that suspicious timing and shifting, inconsistent explanations from the employer raised genuine issues of material fact about the reason for the termination sufficient to preclude summary judgment.

The plaintiff sued her former employer for retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”). She alleged that the defendant fired her in retaliation for reporting the sexual harassment of another employee by a manager. After the plaintiff learned from co-workers that one of the defendant’s managers had sexually harassed a subordinate employee, she filed a formal sexual harassment complaint with the defendant’s director of human resources. The defendant investigated the sexual harassment complaint, which resulted in the termination of the manager, although he received a substantial severance package. Just after the manager was fired, the defendant began an investigation of the plaintiff with respect to an incident that had occurred six weeks earlier. The defendant terminated the plaintiff at the conclusion of its investigation, purportedly for inappropriate conduct and poor judgment in connection with the incident, in violation of its employment policies. Unlike the manager she had complained about, however, she was not offered a severance package. There were two aspect of suspicious timing. The plaintiff was fired only six weeks after she filed her internal complaint of sexual harassment. Additionally, the defendant did not commence its investigation of the incident for which the plaintiff was purportedly terminated until six weeks after the incident, and only after the manager was fired as a result of her internal complaint. The close temporal proximity between her protected activity and termination, as well as the fact that the defendant did not take any disciplinary action against her for the six-week old incident until after she reported the manager for sexual harassment, raised an inference of a retaliatory motivation for her termination. The defendant’s shifting and inconsistent factual accounts and explanations of the plaintiff’s termination and why it began its investigation of the plaintiff also raised an inference of retaliation and supported an inference that the defendant’s proffered reason for the termination was not the real reason for its decision. It is worth noting that the 7th Circuit considered inconsistencies and contradictions between the positions taken by the defendant in its EEOC position statement and the positions it took in federal court. In so doing, the 7th Circuit rejected the defendant’s argument that its EEOC position statement should not be admissible as evidence against it in federal court.

7th Circuit Reverses Summary Judgment for Employer on Title VII Retaliation Claim

On July 12, 2017, the 7th Circuit reversed an order of the district court that granted summary judgment in favor of a defendant employer in a Title VII retaliation case, in which the plaintiff alleged that the defendant intentionally retaliated against her for complaining about employment discrimination in her 2009 EEOC Charge, when it refused to rehire her in 2014. Baines v. Walgreen Co., No. 16-3335 (7th Cir. July 12, 2017). The 7th Circuit stated that, “[t]his appeal provides an example of circumstantial evidence that allows a reasonable inference that an employer acted with unlawful intent.” The circumstantial evidence included evidence that the manager who had handled her earlier EEOC charges intervened in the 2014 decision to not rehire her, and that the manager did so in ways that deviated significantly from the employer’s standard hiring procedures.

The employer offered no explanation for the deviation from its established procedures. In addition, there was evidence that included missing records of the plaintiff’s job application and her interview scores, a decision to hire instead someone less qualified, and dishonest answers from the employer’s decision-makers when asked to explain their decisions. The circumstantial evidence was sufficient to support a causal connection between the protected activity (the EEOC Charge) and the adverse employment action (the failure to rehire). If a jury believes the plaintiff’s evidence, it could reasonably find the employer unlawfully retaliated against her. The defendant argued that the 5-year gap between the protected activity and the adverse job action precluded any causal connection between the two. However, while suspiciously close timing between the protected activity and adverse job action may raise an inference of retaliation, a lengthy gap of time will not defeat a retaliation claim when there is other evidence of retaliation. Particularly damning for an employer are dishonest explanations for the employment decision. Unlawful discrimination or retaliation may be inferred from the falsity of an employer’s stated reasons for an adverse employment action.

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