For the second time this week, a federal court of appeals upholds a jury verdict in an employment discrimination case - here, a $30,000 award and reinstatement for a Title VII retaliation claim. The Seventh Circuit overrules a defense argument that a demotion is somehow not a "materially adverse action" if the employee reluctantly accepts it.
Hicks v. Forest Preserve District of Cook Co., Ill., No. 11-1124 (7th Cir. Apr. 18, 2012): Plaintiff Hicks and coworker Hernandez - maintenance mechanics for the Forest Preserve District (FPD) - filed charges with the EEOC, alleging that their supervisor named Thompson singled them out for worse treatment, such as giving them more -damaged vehicles and filing false disciplinary reports. In the ensuing period, Hicks participated in the investigation of Hernandez's charge.
Thompson issue dozens of write-ups against Hicks for various alleged work-rule violations. Finally, in September of 2008, the FPD informed Hicks that owing to the many complaints about his performance, the only way he could avoid termination was to accept a demotion to a "serviceman II" title, with a dramatic reduction in pay (from $29.62/hr. to $20.43/hr.). Hicks accepted the demotion but filed a fresh charge alleging retaliation.
There was direct testimony bearing on Thompson's motive at trial:
"Joseph Hruska, the intermediate supervisor between Hicks and Thompson. In his affidavit, Hruska stated that as soon as he began working at the Central Garage, Thompson told him that there were two employees - Hicks and Hernandez-who 'needed to be fired' because they had filed charges of discrimination against Thompson. Hruska further stated that two management level employees-Richard Wagner (the superintendent) and Richard Bono (a manager)-also told him, on multiple occasions, that the FPD wanted to 'get rid of' Hicks and Hernandez for filing charges against the FPD."
At trial, the jury returned a verdict for Hicks.
The Seventh Circuit affirms. It rejects the employer's argument that Hicks did not suffer an "materially adverse action," because he supposedly accepted the demotion voluntarily:
"Here, Hicks did not request or even acknowledge a need for a demotion; he was given a choice between taking a demotion or staying in his present role to face further disciplinary action up to termination. Hicks testified that he had no choice but to accept the demotion because he believed that he would be fired if he did not, and the FPD made it clear to Hicks that it would seek to terminate him if he did not accept the demotion. Such a choice could be said to be no choice at all, and the jury agreed. Thus, Hicks presented sufficient evidence at trial for a reasonable jury to find that his demotion was involuntary."
The panel rejects the employer's argument, also, that the 22 months that elapsed from Hicks' cooperation in the investigation to his forced demotion broke the chain of causation. Although temporal remoteness can vitiate causation, here there was other evidence that tended to support an inference of retaliation: "Hruska testified that Thompson told him that Hicks and Hernandez needed to be fired because they had filed charges of discrimination against Thompson, and this constitutes direct evidence that Hicks was demoted because he engaged in a protected activity."
The panel also held that the facts of this case adhered to the "cat's paw" model recently adopted by the Supreme Court in Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011), because the avowed decision-maker (named Sanchez-Bass) and the other officials relied on Thompson's reports:
"Hicks presented sufficient evidence at trial for the jury to find that the FPD officials based their decision to offer Hicks the demotion on the twenty-eight disciplinary action forms he received either directly from Thompson or with Thompson's approval. While Thompson himself did not participate in the hearing at which Hicks was offered the demotion, Thompson submitted the disciplinary action forms to Sanchez-Bass. Her testimony at trial indicated that she relied on the forms when offering Hicks the choice between accepting the demotion or facing further disciplinary action, including termination. The jury found that Thompson had a retaliatory animus against Hicks, and since Sanchez-Bass and the other FPD officials who demoted Hicks were 'dependent on another employee to supply the information on which to base' their decision, his animus can be imputed to the FPD under the 'cat's paw' theory. Brewer, 479 F.3d at 918. Therefore, Hicks put forth sufficient evidence to support the jury's decision on the retaliation claim."
The panel also upheld the jury charge. The employer complained that the instruction was based on the Ninth Circuit's model instructions, disregarded Seventh Circuit law, and - most importantly - failed to describe the adverse action at issue in the case. The panel found no prospect of jury confusion:
"The trial focused on Hicks's demotion, and in the choice between twenty-eight citations at work or a demotion to a different position with a concurrent $9 per hour cut in pay, no reasonable juror could be confused about which action was the adverse action at issue. Since the district court did not misstate the applicable law and there is no evidence that the jury was misled or confused, the FPD is not entitled to a new trial."
Finally, the panel affirms the reinstatement order, over the employer's suggestion that the order would place Hicks once again under Thompson's supervision: "While the relationship between Hicks and Thompson may be acrimonious, Hicks specifically requested reinstatement, and we have ruled that mutual dislike between an employer and an employee is not a satisfactory reason to deny reinstatement."