7th Circuit Affirms Summary Judgment on Section 1981 Employment Discrimination and Retaliation Claims

On June 19, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant employer in a federal lawsuit in which the plaintiff, former employee alleged that the defendant laid him off and failed to rehire him because of his race and in retaliation for his EEOC charge.  Oliver v. Joint Logistics Managers, Inc., No. 17-1633 (7th Cir. 6/19/2018).  The plaintiff sued his former employer under Section 1981 of the Civil Rights Act of 1866, alleging that it discriminated against him when it laid him off and when it hired another applicant to fill an open position.  He also alleged that the employer retaliated against him because he filed a charge of discrimination with the EEOC.  The 7th Circuit concluded that the plaintiff failed to present essential evidence in support of each of his claims.

The plaintiff is an African-American who was hired by the defendant as a truck driver.  He alleged that the defendant discriminated against him when it laid him off from its transportation unit and when it did not hire him for a mechanic position that was posted.  He also alleged that the defendant retaliated against him by not hiring him for mechanic positions that had opened after he filed his EEOC charge.  Section 1981 of the Civil Rights Act of 1866 protects the rights of all persons to make and enforce contracts regardless of race.  To survive summary judgment on a Section 1981 discrimination claim, a plaintiff must either provide enough evidence to permit a reasonable factfinder to conclude that the plaintiff's race caused the discharge or other adverse employment action, or employ the burden-shifting framework in McDonnell Douglas Corp. v. Green.  The plaintiff could not establish a prima facie case that he was laid off because of his race.  He presented no adequate comparator employees who were treated more favorably.  The only potential comparators he offered had more seniority than him under the defendant's system; and since seniority was the only factor the defendant considered when reducing its workforce, the more senior comparators were not similarly situated.  There was no allegation that other factors influenced the layoffs.  The plaintiff also failed to demonstrate that the defendant hid a discriminatory motive when it failed to hire him for the mechanic position and instead hired a white employee with equal seniority.  To establish a prima facie case of discrimination in the failure-to-hire context, a plaintiff must demonstrate that: (1) he was a member of a protected class; (2) he was qualified for and applied to an open position; (3) he was rejected; and (4) the employer filled the position by hiring someone outside the protected class, or left the position open.  The defendant claimed that it did not hire the plaintiff because it believed that the other job candidate was more qualified.  As long as the employer can point to reasonably specific facts that explain how it formed its opinion, it has met its burden to offer a legitimate, nondiscriminatory reason for the adverse job action, in this case, for not hiring the plaintiff.  The burden then shifts to the plaintiff to demonstrate that the employer's proffered reason was pretext to mask an unlawful discriminatory motive.  To survive summary judgment on the issue of pretext, a plaintiff need only offer evidence that supports an inference that the employer's proffered nondiscriminatory reason for its adverse job action was dishonest.  However, the plaintiff failed to offer any evidence or argument on pretext.  The plaintiff's retaliatory failure-to-hire claim also failed.  To establish an adverse employment action in the failure-to-hire context, a plaintiff must prove that: (1) he engaged in statutorily protected activity; (2) applied and had the technical qualifications required for the position; (3) was not hired for the position; and (4) a similarly situated individual who did not engage in protected activity was hired for the position.  The plaintiff's retaliation claim was doomed because he could not demonstrate that he suffered an adverse employment action, since he never applied for or showed any interest in the subject positions that opened after he filed his EEOC charge.