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.