On October 30, 2018, the 7th Circuit affirmed an order of summary judgment in favor of the defendant-employer in a Title VII lawsuit in which the plaintiff, a former dental assistant at a Veterans Affairs dental clinic, alleged that he was discriminated against based on his gender (male) and race (Hispanic), he was retaliated against for filing EEO complaints, and he faced a hostile work environment. Abrego v. Wilkie, Secretary of Veterans Affairs, No. 17-3413 (7th Cir. 10/30/2018). Under Title VII of the Civil Rights Act of 1964 ("Title VII"), it is unlawful for an employer to discriminate against an employee based on race, color, religion, sex, or national origin. To prevail on a Title VII employment discrimination claim, a plaintiff-employee must prove three elements: (1) she is a member of a protected class; (2) she has been subjected to an adverse employment action; and (3) that the employer took the adverse job action on account of the employee's membership in the protected class.
The applicable legal standard is whether the evidence, in its totality, would permit a jury to conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused the employment termination or other adverse employment action. Usually, the burden-shifting approach established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) is used as the method of proof, but that is not the only way for a court to assess circumstantial evidence of discrimination. The 7th Circuit concluded that the plaintiff in this case presented no evidence to support an inference that he was suspended and terminated as a result of race or sex discrimination. Rather, he was suspended and terminated for legitimate, non-discriminatory reasons relating to issues of insubordination. The plaintiff argued that similarly situated employees were treated more favorably, on the theory of disparate treatment--that if an employer takes an action against one employee in a protected class, but not against another outside that protected class, a court may infer unlawful discrimination. However, the proposed comparator employees must be sufficiently similarly situated so that an inference of discrimination from the differential treatment is valid and sound. In this case, the 7th Circuit concluded that the plaintiff's proposed comparators were not in the same boat as the plaintiff and that therefore, his disparate treatment argument failed. The evidence taken as a whole would not permit a reasonable jury to conclude that the plaintiff's race or sex caused his suspension and termination.
The plaintiff's retaliation claim also did not survive summary judgment. To survive a motion for summary judgment on a Title VII retaliation claim, an employee must present sufficient evidence for a reasonable jury to conclude that: (1) she engaged in statutorily protected activity; (2) the employer took a materially adverse employment action against her; and (3) there was a but-for causal connection between the two. The essential question is whether the evidence as a whole permits a reasonable inference that retaliatory motivation caused the adverse employment action. The plaintiff alleged that he was retaliated against for filing three EEO complaints, which constitutes protected activity. However, he failed to present evidence that would permit a reasonable jury to infer that his filing of the EEO complaints caused his suspension and termination. In a Title VII retaliation claim, causation may be established by circumstantial evidence, which includes suspicious timing, a pretextual explanation for the termination, evidence of disparate treatment, or any other evidence from which an inference of retaliatory intent may be drawn. However, the plaintiff failed to present sufficient circumstantial evidence to allow a reasonable jury to conclude that but-for his filing of the EEO complaints, he would not have been suspended or terminated. The evidence indicated that to the contrary, he was terminated for many legitimate, non-retaliatory reasons. He presented no evidence that those reasons were pretextual. And his disparate treatment approach failed because his proposed comparators were not sufficiently similarly situated.
The plaintiff's final claim, hostile work environment, also failed. He alleged that the VA created a hostile work environment. Title VII makes it unlawful for an employer to require an employee to work in a discriminatory hostile or abusive environment. When the workplace is permeated with discrimination, intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the employee's employment and create an abusive working environment, Title VII is violated. To survive a motion for summary judgment on a hostile work environment claim, a plaintiff must present evidence that: (1) the work environment was both objectively and subjectively offensive; (2) the harassment was based on the plaintiff's membership in a protected class or in retaliation for protected activity; (3) the conduct was severe or pervasive; and (4) there is a basis for employer liability. A court considers the totality of the circumstances, including factors such as the frequency of the improper conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee's work performance. In support of his claim, the plaintiff contended that his supervisors were short tempered, hostile, unfairly critical, and disrespectful, and that he was subjected to excessive monitoring. However, these conditions are not objectively offensive, severe, or pervasive. They do not create a workplace permeated with discriminatory intimidation, ridicule, and insult. The plaintiff also failed to present sufficient evidence that the alleged harassment was based on his race or sex, or in retaliation for filing his EEO complaints. Thus, the district court's entry of summary judgment on the plaintiff's hostile work environment claim was also proper.