On January 12, 2015, the 7th Circuit reversed the entry of summary judgment on a Title VII retaliation claim. Greengrass v. International Monetary Systems, Ltd., No. 13-2901 (7th Cir., 1-12-2015). The plaintiff alleged that her former employer retaliated against her for filing a charge of employment discrimination and sexual harassment with the U.S. Equal Employment Opportunity Commission by naming her in the litigation section of a publicly available SEC filing, in which it labeled her charge as meritless. The district court granted summary judgment in favor of the company on the basis that the plaintiff failed to establish a causal connection between her EEOC filing and the alleged retaliation. The 7th Circuit found that the plaintiff established a claim for retaliation. She engaged in protected activity by filing her charge; the company took adverse employment action by naming her in its SEC filing; and there was enough evidence for a jury to conclude that the company did so because of her charge.
The plaintiff filed her charge of discrimination on January 20, 2008. She alleged sex discrimination, national origin discrimination, and retaliation. In July 2008, the company received a notice about the plaintiff’s charge, in which the EEOC requested information about other sexual harassment claims against the company. Around January 12, 2009, the company received a notice that the EEOC intended to interview witnesses in connection with the plaintiff’s claim. On April 6, 2009, in its next SEC filing, the company identified the plaintiff and her charge in the pending litigation section of the report. It stated that the plaintiff had filed a sexual harassment complaint…but the company believes the claim to be meritless.
On September 28, 2010, the plaintiff filed another charge, in which she alleged that the company retaliated against her because of her previous charge by naming her in its SEC filing. After the plaintiff received a Notice of Right to Sue, she filed a lawsuit in federal court, in which she alleged that the company had retaliated against her in violation of Title VII of the Civil Rights Act of 1964. A plaintiff may prove retaliation under Title VII with the direct or indirect method. Under the direct method, the plaintiff must demonstrate that: (1) she engaged in protected activity; (2) she was subjected to an adverse employment action; and (3) there was a causal connection between the two. Filing a charge of discrimination is protected activity. Listing an employee’s name as a litigant in publicly available filing is adverse employment action. An employee’s decision to file a charge could be negatively viewed by prospective employers. The specter of being publicly identified as an employee who sued her employer could deter an employee from filing a charge. Post-termination retaliation that harms an employee’s employment prospects is unlawful.
Causation is usually the pivotal issue in a retaliation case. To establish a casual connection between the protected activity and adverse job action, a plaintiff must demonstrate that the employer would not have taken the adverse action but for the protected activity. Direct evidence, such as an admission, is rare. A plaintiff may show causation with circumstantial evidence from which retaliation may be inferred, such as suspicious timing, ambiguous statements, disparate treatment or pretext. Suspicious timing exists when an adverse job action occurs soon after the protected activity. Even though the plaintiff had filed her first charge 14 months before the SEC filing, the company did not receive the EEOC’s notice to interview witnesses until only three months before its filing. A reasonable jury could conclude that the company decided to retaliate against the plaintiff upon receipt of the witness interview notice, when it realized that the EEOC was ramping up her claim. The three-month time-interval between the notice and filing was close enough to be suspicious under the circumstances.
There was also evidence of a retaliatory animus. A company email revealed disdain for the EEOC process and animus against the plaintiff for filing her complaint. Animus could also be inferred from the company’s decision to forward the plaintiff’s complaint to her alleged harasser.
Evidence of pretext also weighed into the 7th Circuit’s analysis. Pretext may be established though weaknesses, inconsistencies or contradictions in an employer’s proffered reasons for its employment decision, which support an inference that the reasons are unworthy of belief. Shifting policies or explanations can demonstrate pretext, as evidence that the employer is dissembling the facts. Multiple shifts in the company’s SEC filing policy raised doubt about the company’s reasons for its employment decision. Thus, the 7th Circuit concluded that summary judgment was inappropriate.