Tag Archives: 7th Circuit

Can Employment Discrimination Plaintiffs Survive Summary Judgment?

Contributed by Julie Proscia and Steven Jados

The Seventh Circuit recently affirmed summary judgment for the employer in Miller v. St. Joseph County, a race discrimination case, and in doing so applied what may prove to be a streamlined standard for determining whether employment discrimination plaintiffs can survive summary judgment.

The plaintiff in Miller was a long-time employee of the county’s police department who sought several promotions which he did not receive. He alleged, among other things, that the promotion denials, a temporary assignment he disliked (but which did not change his compensation, benefits or rank), and the fact that he did not receive certain other promotions for which he apparently did not even apply, were all the result of race discrimination.

The court, while noting that it could not overrule the McDonnell Douglas burden-shifting method of proof, and its prima facie elements, instead applied a brief three-part test as a substitute for what the court called the “cumbersome” indirect and direct methods of proof. The three parts are: (1) membership in a protected class; (2) an adverse employment action; and (3) evidence from which “a rational jury could conclude that the employer took that adverse action on account of . . . protected class, not for any non-invidious reason.”

Applying that test, the court noted that there was no evidence of racial slurs or other manifest racial hostility; no evidence that the plaintiff was more qualified than the individuals hired into the positions plaintiff sought; and no evidence that race played a factor in the temporary assignment the plaintiff disliked. In short, the court looked at the evidence the plaintiff presented and saw nothing that could lead a rational jury to conclude that race discrimination occurred—and the court affirmed summary judgment in the employer’s favor as a result.

Now, what does this mean as a practical matter for human resources and management professionals?  It appears to signal the court’s interest in adjudicating discrimination cases on a common-sense basis.  That sounds simple, but whether it actually streamlines the litigation of discrimination cases—especially a case based heavily on circumstantial evidence—remains to be seen.

Lack of Documentation Sinks Employer’s Defense to Retaliation Claim

Contributed by Jonathon Hoag

Timing may not be everything when it comes to employment retaliation claims, but it is a critical factor.  An employee who can show adverse employment action taken on the heels of engaging in some type of protected activity (e.g. complaining to the EEOC) is in prime position to assert the employer unlawfully retaliated.  A fundamental step to proving retaliation is to show the employer was aware of the protected activity at the time of the adverse employment decision.  Naturally, an employer that is unaware of protected activity cannot retaliate against an employer for engaging in protected activity.

In a recent 7th Circuit retaliation case, the employer asserted it could not have retaliated against the employee for filing a charge with the EEOC because it made the decision to terminate the employee prior to getting notice of the EEOC charge of discrimination.  The district court agreed and granted summary judgment in favor of the employer and dismissed the lawsuit.  The 7th Circuit disagreed and revived the employee’s claims – primarily because the employer did not have any documentation to show the decision was made to terminate the employee prior to learning about the EEOC charge.

The employee worked within a housing shelter and had been warned on numerous occasions about mistreating and threatening residents.  The employer asserted that after it issued yet another warning to the employee, the employee accused coworkers and members of the board of lying to try to get him fired.  The employer further asserted that the executive director and the board president met and decided to terminate the employee – 5 days before learning of the EEOC charge.  However, the employer did not actually carry out the termination until the day after it received the EEOC charge.

The 7th Circuit pointed out the obvious – terminating the employee the day after it learned he filed an EEOC charge was suspicious timing.  There were other factors that prompted the 7th Circuit to revive this case and give the employee his day in court, but the factor the 7th Circuit stressed most was that there was no documentation of the meeting in which it was decided to terminate the employee (which the employer claimed took place before notice of an EEOC charge).  Had there been some form of authentic documentation to show the decision was made to terminate the employee 5 days before a copy of the EEOC charge was delivered to the employer, it might have alleviated the court’s concerns about the accuracy of the employer’s story.

Retaliation claims now top the list as the most prevalent type of claim filed with the EEOC.  The fact an employee engages in protected activity does not shield that employee from legitimate adverse employment action, but employers do have to be prepared to “prove” there was not a causal connection between the protected activity and adverse action.  Detailed documentation of employment decisions is a must to break the causal connection – and ideally will show the employment decision was made by persons or at a time in which knowledge of the protected activity was unknown…the absolute best defense to a retaliation claim.

Regular Attendance Remains an Essential Job Requirement Notwithstanding Employer’s Work-At-Home Policy

Contributed by Jonathon Hoag

The 7th Circuit’s recent decision in Taylor-Novotny v. Health Alliance Medical Plans, Inc., 772 F.3d 478 (7th Cir. 2014) provides a reminder to all employers that in order for an employee to establish an ADA claim he or she must show they are a “qualified individual with a disability.”  That is, the employee must be able to perform the essential functions of the job with or without reasonable accommodation.  In this case, the 7th Circuit reiterated that regular attendance is an essential function of most jobs and the fact that an employer allows flexibility through a work-at-home policy does not automatically eliminate the essential nature of regular attendance.

Home OfficeNovotny began work in November 2005 and experienced almost immediate punctuality and attendance problems.  She was rated poorly in this area during  her January 2007 performance evaluation.  A few months later Novotny was diagnosed with multiple sclerosis.  The company adjusted Novotny’s start time and made other accommodations to Novotny’s physical work space.  Novotny was also approved for intermittent leave under FMLA.

In 2008, Novotny began working from home two days a week under a work-at-home policy.  The company required Novotny to adhere to an agreed-upon work schedule, to be available by phone, email, voice mail, pager, or modem during that scheduled time, to report absences, and to be available for staff meetings and other in-services.  Novotny continued to have difficulties with attendance and tardiness.  The company documented the ongoing issues and stressed that Novotny could use intermittent FMLA leave when applicable, but she would be subject to discipline if she failed to timely communicate the absence or tardiness and for absences and tardiness unrelated to FMLA.

In May 2010, the company issued a final warning due to Novotny’s ongoing late arrivals.  Following this final warning, Novotny logged in late on multiple occasions while working from home.  Novotny provided excuses for logging in much later than her start time, but there was no dispute that Novotny did not timely notify her supervisor when logging in late.  In July 2010, Novotny was terminated.  Novotny filed suit alleging disability discrimination, among other things.

While the court noted that Novotny’s claim would fail because she was not meeting the company’s legitimate expectations, it disposed of her claim by ruling that she cannot allege disability discrimination because she was not a “qualified individual” with a disability.  Novotny’s condition was a “disability” under the ADA, but the evidence was clear that Novotny had ongoing attendance and punctuality problems.  As such, Novotny could not perform an essential function of the job (i.e. maintain reliable and regular attendance) with or without accommodation.  Novotny pointed out that she was allowed to work from home arguing that attendance and punctuality standards were flexible and not an essential function of the job.  The court disagreed by emphasizing that the work from home arrangement was pursuant to a written policy that clearly articulated requirements for her to maintain a regular schedule and be available at scheduled times.

The company was able to defeat Novotny’s claim largely because it had clear documentation to establish that regular attendance and punctuality were essential job functions.  Employers should keep in mind that the courts give employers a fair amount of discretion in determining what aspects of a job are essential, but the employer’s policies, job descriptions, and other writings must be reviewed and updated to remain consistent with the employer’s expectations of what constitutes an essential job function.