On September 9, 2014, the 7th Circuit affirmed summary judgment on Title VII race discrimination and retaliation claims. Moultrie v. Penn Aluminum International, No. 13-2206 (7th Cir., 9/9/2014). The 7th Circuit found that there was insufficient evidence to support the plaintiff's claims that he was demoted because of his race and in retaliation for complaining about discrimination. In order to establish a claim for employment discrimination, an employee must demonstrate that: (1) he is a member of a protected class; (2) his job performance met his employer's reasonable expectations; (3) an adverse job action was taken against him; and (4) similarly-situated employees outside of his protected class were treated more favorably. If the employee meets these elements, the employer has the opportunity to produce a legitimate, non-discriminatory reason for the adverse job action. This shifts the burden of proof to the employee to show that the employer's proffered reason is pretext for discrimination. In Moultrie, the plaintiff failed to establish that his job performance met his employer's reasonable expectations. He had been written up for multiple performance problems and admitted to dozing off while driving a fork-lift truck. He also failed to identify a similarly-situated employee outside of his protected class who was treated more favorably. The one employee that the plaintiff identified had also been terminated and, therefore, was not treated more favorably. Because the plaintiff failed to meet his initial burden of proof, pretext analysis was unnecessary.
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On September 9, 2014, the 7th Circuit affirmed summary judgment on sexual harassment, racial harassment, and retaliation claims. Muhammad v. Caterpillar, Inc., No. 12-1723 (7th Cir., 9/9/2014). The plaintiff was subjected to derogatory remarks about his race and sexual orientation that were made made by three co-workers. Each time he reported the remarks to management, the company addressed the issue, and the co-workers did not make any more remarks. Other derogatory statements about the plaintiff's race and sexual orientation were written on the bathroom walls. Every time the plaintiff reported the bathroom graffiti, the company painted over it (3 times). After the plaintiff reported the remarks and graffiti, he was suspended for violation of a workplace rule and insubordination. The 7th Circuit held that the plaintiff's harassment claims failed because the company promptly addressed and stopped the harassment. The 7th Circuit rejected the plaintiff's argument, that the company's failure to discipline all of the co-workers supported his harassment claims. An employer's obligation under Title VII is to prevent harassment, not discipline the harassers.
On August 18, 2014, the 7th Circuit reversed summary judgment in an FMLA interference and retaliation case. Hansen v. Fincantieri Marine Group, LLC, No. 13-3391 (7th Cir., 8-18-2014). The Family and Medical Leave Act provides that an eligible employee may take up to twelve weeks of leave during any twelve-month period if she is unable to perform her job functions because of a serious health condition. An employer is prohibited from interfering with an employee's exercise of or attempt to exercise any right under the FMLA. It is also unlawful for an employer to retaliate against an employee for exercising or attempting to exercise FMLA rights. In order to prevail on an FMLA interference claim, an employee must establish, among other things, that she is entitled to the leave. When an employee requests leave under the Family and Medical Leave Act, the employer may require the employee to provide medical certification from her health care provider. If the employer determines that the medical certification is incomplete or insufficient, the employer must inform the employee of the deficiency and give her the opportunity to fix it. An employer cannot deny leave based on an incomplete certification without giving the employee the opportunity to cure it.
On August 7, 2014, the 7th Circuit reversed summary judgment on Title VII and FMLA retaliation claims. Malin v. Hospira, Inc., No. 13-2433 (7th Cir., August 7, 2014). In order to state a claim for Title VII or FMLA retaliation, a plaintiff must provide evidence of: (1) protected expression; (2) materially adverse employment action; and (3) a causal connection between the two. A formal complaint of sexual harassment to human resources and a request for FMLA leave constitute protected activity. A failure-to-promote and a demotion constitute materially adverse employment action. In Milan, three years stood between the protected activity and adverse employment action. However, a lengthy time-interval between the protected activity and adverse job action is not an absolute bar to a retaliation claim. As time passes between the protected activity and adverse action, the inference of retaliation weakens, but the plaintiff may still support her retaliation claim with other circumstantial evidence. The unique facts and circumstances of each retaliation case must be evaluated, regardless of the timing between protected activity and adverse action, for which there is no bright-line rule.
On August 4, 2014, the 7th Circuit affirmed summary judgment in an FMLA retaliation case. Langenbach v. Wal-Mart Stores, Inc., No. 14-1022 (8-4-2014). The plaintiff alleged that her employer took various adverse job actions against her and terminated her employment in retaliation for her FMLA leave of absence. A plaintiff may establish a retaliation claim under the Family and Medical Leave Act through the direct or indirect method of proof. With the direct method, a plaintiff must show that: (1) she engaged in statutorily protected activity; (2) the employer took materially adverse job action against her; and (3) there is a causal connection between the protected activity and the adverse action. Negative performance reviews and performance improvement plans are not materially adverse for purposes of an FMLA retaliation claim. A schedule change is also not materially adverse, unless is was made by the employer in order to exploit a known vulnerability of the employee. An employment termination, on the other hand, is materially adverse. A plaintiff may demonstrate a causal connection between her FMLA leave and employment termination through a direct admission of the employer, or a convincing mosaic of circumstantial evidence. The circumstantial evidence may consist of suspicious timing, disparate treatment, pretext, or ambiguous statements through which an inference of retaliation may be inferred. The evidence must point directly to an illegal motive for the adverse action, without resort to speculation.
On July 22, 2014, the 7th Circuit affirmed summary judgment in a Title VII race discrimination failure-to-hire case. Matthews v. Waukesha County, No. 13-1839 (7-22-2014). In order to establish a discriminatory failure-to-hire claim, the employee must show that: (1) she is a member of a protected class; (2) she applied and was qualified for the position; (3) she was rejected for the position; and (4) the employer filled the position with someone not in her protected class. This shifts the burden to the employer to articulate a legitimate, non-discriminatory reason for the hiring decision. Once the employer states a reason, the burden shifts to the employee to prove the employer's stated reason is pretext for discrimination. In Matthews, the plaintiff established a prima facie case of discrimination, but failed to offer enough evidence of pretext to survive summary judgment. The incontrovertible fact that the decision-makers in the hiring process did not know the race of the applicants was dispositive. The plaintiff's contention, that the decision-makers inferred the race of certain applicants from their names, was rejected by the 7th Circuit as one of those evidentiary "flights of fancy."
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