Title VII Retaliation Claims--Jury Instructions for Single Act of Retaliaiton Based on Multiple Acts of Protected Activity.

On August 4, 2021, the 7th Circuit affirmed the district court's denial of the plaintiff's motions for judgment as a matter of law and for a new trial, in a Title VII retaliation lawsuit tried before a jury in federal court.  Brooks v. City of Kankakee, Illinois, No. 20-1395 (7th Cir. Aug. 4, 2021).  The plaintiff, an African-American police officer, made three statements complaining that his employer, the City of Kankakee, favored white police officers.  The City viewed the statements as false and disparaging.  It issued a written reprimand, ordering him to stop making such statements and threatening disciplinary action if he didn't.  The written reprimand specifically referenced all three statements.  The plaintiff alleged retaliation based on failure to promote and discipline.

The district court granted summary judgment on the retaliation-by-failure-to-promote claim, but denied summary judgment on the retaliation-by-reprimand claim.  The written reprimand was a materially adverse employment action.  The evidence raised a fact question of whether the statements were reasonable, good faith complaints about preferential treatment on the basis of race.  The jury returned a verdict for the City on the retaliation-by-reprimand claim.

At issue on appeal was the court's "conjunctive" jury instruction that required the plaintiff to prove that he made all three statements in good faith.  The plaintiff moved for a new trial on the grounds that the jury instructions misstated the law and were confusing.  He contended that the jury should not have been required to find that all three statements were made in good faith.  The district court had reasoned that because the plaintiff pleaded only one retaliation count, and the written reprimand was a single retaliatory act based on all three statements, the jury must find that all three statements were made in good faith.

The 7th Circuit disagreed.  All three statements did not have to be made with a good-faith, objectively reasonable belief (that he was opposing unlawful discrimination).  The written reprimand itself was the retaliatory act required to meet the but-for causation standard.  The reprimand, written because of all three statements, would not have been issued due to only one or two statements.  As long as the jury found that one statement was made in good faith, it could conclude that the reprimand was retaliatory.  "[T]he district court instructed the jury to find more than legally required; in effect, the district court held [the plaintiff] to proving three acts of retaliation to prevail."

However, the evidence did not show that the plaintiff would have prevailed with proper instructions.  The evidence of good faith or reasonableness in making the statements "was so lacking that a proper jury instruction would not have made a difference in the outcome."  Absent prejudice from the erroneous instruction, the plaintiff was not given a new trial.