On May 13, 2015, the 7th Circuit reversed the district court’s entry of summary judgment on a Title VII retaliatory discharge claim. Castro, et al. v. DeVry University, Inc., No. 13-1934 (7th Cir. 2015). The plaintiff alleged that the defendant discharged him in retaliation for complaining to its Human Resources Department about racially and ethnically offensive remarks made by his manager. Title VII of the Civil Rights Act of 1964, as amended, makes it unlawful for an employer to take adverse employment action against an employee in retaliation for complaining about an unlawful employment practice. This sort of complaining is referred to as protected activity. To prove a retaliatory discharge case, a plaintiff must establish the following elements: (1) protected activity; (2) adverse job action; and (3) a causal relationship between the two. A variety of circumstantial evidence may support a retaliatory discharge claim.
The timing between the protected activity and adverse job action always comes into play (10 months in this case). Close temporal proximity between the protected activity and the adverse action may raise an inference of retaliatory motivation, but as the time between the two increases, the causal connection weakens. Other evidence must be considered, including evidence of pretext–that the employer’s stated reason for the discharge is pretext to conceal the actual retaliatory motive. Shifting or inconsistent explanations for the discharge may establish pretext, along with a host of other circumstantial evidence. In this case, there was somewhat of a smoking gun. An email between defendant’s managers not only admitted that the plaintiff’s performance had actually been adequate, but also indicated that the plaintiff’s behavior in complaining to H.R. was a reason for his termination. That piece of writing was damning to the defendant because it raised a doubt about the honesty of the defendant’s performance-based justification for its termination decision; and it established that the plaintiff’s protected activity was intertwined with and inseparable from the defendant’s decision to discharge him. This and other circumstantial evidence, including shifting reasons for the termination, are sufficient for a jury to conclude that retaliation motivated the discharge. Thus, summary judgment was inappropriate, and the case will go to trial.