Judge Diane Wood of the Seventh Circuit authors two EEO opinions, published the same day, reversing summary judgment for employers and remanding cases for trial: a hard-fought Title VII retaliation case (paired with a biting dissent by Judge Richard Posner), and an ADA disability hiring case that considers the admissibility of TRS (assisted) phone calls for the deaf.
Houston v. Saint Joseph Regional Medical Center, No. 07-2197 (7th Cir. Sept. 12, 2008) — This case took a long course for a Seventh Circuit appeal — over a year from oral argument to be decided. And it is apparent why in the reading: 31 pages devoted to a single, low-dollar claim about a quarter-time job occupied by a college student. The panel majority opinion, joined by Judge Ann Williams, clashes with an unusually pained dissent by Judge Posner.
This case also puts us in mind, once again, that an employer that keeps its employees in the dark about investigation of their harassment complaints is just buying trouble. The plaintiff, Ms. Houston (plaintiff Magyar’s name, at the time), was a college student working at the defendant hospital as a part-time assistant scheduler. Houston suffered continuing emotional trauma from a sexual assault, which foregrounds the problem in this case.
Houston endured two uncomfortable encounters with a man named Carl, 30 years older than she, who sat in her lap unbidden and whispered in her ear that she was “beautiful.” She reported the trouble confidentiality to her immediate supervisor (Goddard), instead of going through the ordinary harassment complaint process. Goddard, apparently sensitive to the fears Houston felt, approached Carl herself and told him to lay off. There is a dispute in the record about whether Carl apologized to Houston, or whether he was discouraged by Goddard from bring the subject up with her. Houston heard nothing further about her complaint (according to the summary judgment record), but also suffered no further harassment by Carl.
The quiet about her complaint disturbed Houston:
“[F]rom Houston’s perspective, there was no evidence that anything (effective or otherwise) had happened. Goddard took no steps whatsoever to communicate with Houston regarding any resolution of her complaint, and so a trier of fact could infer that Houston (especially given the earlier incident of sexual assault) was left in fear that at any moment there might be a third incident. Goddard does not even allege that she followed up with Houston; her deposition testimony reveals that she simply assumed that the matter had been put to rest: ‘I talked to Mr. Carl that afternoon regarding Ms. [Houston]’s complaint. I heard nothing more from Ms. [Houston] regarding Mr. Carl and believed the issue had been resolved to Ms. [Houston]’s satisfaction, as I had spoken to Mr. Carl, as Ms. [Houston] requested, and no further incidents had occurred.’”
Hearing nothing, Houston next went to the Hospital’s General Counsel and Organizational Integrity Officer, Robert Wade, complaining about her unease with Goddard’s handling of the situation. This led to communications between Goddard and Wade, with Wade wondering out loud why Houston skipped the chain of command.
Within two weeks, Houston found her part-time job posted on the hospital job listings, an act that she took to be retaliatory. Goddard had arranged to consolidate Houston’s job (and that of another part-time staffer) into a single, full-time position. Though formally “on call,” Houston received no further work and was unable to bid for shifts that did not conflict with her college schedule. Eventually, she received notice of termination because she did not work enough hours.
The panel majority reverses summary judgment, holding that Houston presented genuine issues of material fact about participating in a protected activity, establishing a causal link to the adverse action and the employer’s defense that Houston’s job would have been eliminated anyway.
The majority finds, first, that Houston’s complaints to Wade about Goddard’s investigation was a protected act: “Taking the facts in the light most favorable to Houston, as we must at this stage, the complaint to Goddard with the follow-up complaint to Wade made up one continuous complaint process to which Houston resorted. In effect, she was asking Wade to ensure that the institution do something about sexual harassment; there is not a hint that she had another, unrelated, grievance about Goddard.” (This issue may also crop up in the Crawford case, in the U.S. Supreme Court this coming term, concerning retaliation in the context of an internal investigation.)
Second, the court finds a causal connection between the protected activity and the adverse action: “Although the lap incidents took place in early August (and perhaps a bit earlier), we think that the approach most favorable to Houston is to assume that the suspicious-timing clock was restarted on September 17, because that is when Houston complained to Wade, the General Counsel and Integrity Officer. From that point, it is at most nine days before the first sign of an adverse employment action, because by the September 26 letter Houston already knew that her job had been posted on the job listings. The fact that full execution of the adverse action took a while longer for bureaucratic reasons is immaterial.“
Finally, the majority found the employer’s defense (that it consolidated the jobs for business reasons) at best raised another issue of fact: “The Hospital cannot meet its burden on summary judgment by having the actor say only that she was thinking vaguely of restructuring the job and planned to do it when she got around to it. The fact that the Hospital also presented testimony that Goddard had not had a situation in which two PRNs were sharing a job in all her prior management years at the hospital does not compel a different result. To the contrary, the fact-finder could conclude that the fact that the ‘situation’ continued without being ‘addressed’ for over three months indicates that there was no urgency or even inevitability about the Hospital’s decision to terminate Houston’s position. Although the dissent contends there is ‘no doubt’ that Goddard intended to convert the PRN positions from the time she came on board despite the delay in carrying out this intention, it is able to come to that conclusion only by viewing the evidence in the record in the light most favorable to the Hospital. That is not the standard we must apply; in our view there is enough in the record to entitle a reasonable jury to find in favor of Houston. “
Judge Posner, in dissent, depicts Ms. Houston as a schemer teeing up a lawsuit. Sifting through the e-mails and other record evidence, he would conclude (presumably as a matter of law) that Houston at first appeared to be satisfied with the handling of her complaint, but then ginned up a conversation with Goddard (which she secretly and illegally tape recorded) to set up a retaliation claim.
The dissent also regards employee complaints about how an internal investigation was handled as a management issue, not “protected activity” under statute:
“The majority’s reasoning places employees such as Pam Goddard in an impossible position: If the employee reacts indignantly to being complained about, this is taken as evidence of retaliation; but if she reacts by admitting that the complaint about her to her superior is justified, or by not protesting seems tacitly to admit that, she sets herself and her company up for a lawsuit (with the admission as evidence) for failing to handle a claim of sexual harassment in accordance with Title VII.”
Judge Posner concludes with tart words for his bench mates: “My colleagues are deceived. This is not a case about the sexual harassment of an employee, but about the litigation harassment of an employer. The district judge was right to end it.” Well, it should make for a rousing trial anyway. The defense lawyers can crib Judge Posner’s opinion for their closing argument.
Germano v. Int’l Profit Assoc. Inc., No. 07-3914 (7th Cir. Sept. 12, 2008) — In this ADA hiring case, the applicant for a tax advisor job (Germano) presented damning circumstantial evidence of discrimination. The employer invited Germano for an interview, only to withdraw the invitation six days later after learning that he was deaf. It discovered the disability because Germano contacted the interviewer (named Sage) by way of a telecommunications relay service (TRS) phone call, assisted by a third party (termed a “CA”).
After the rejection, Germano e-mailed Sage back, wondering whether his deafness had anything to do with the decision. Sage’s reply was a classic EEO groaner: “Honestly, the decision makers did discuss the topic of your hearing, but felt this was an obstacle that was not insurmountable. Simply stated, other candidates [sic.] experience better fit the needs of our clients.”
The district court, remarkably, excluded the evidence of the original TRS call on hearsay grounds. It did not recognize Sage’s end of the conversation as party admissions, FRE 801(d)(2)(D), because the statements were relayed through the CA, who types out the responses verbatim and sends them as text to the deaf caller.
With an assist from the EEOC as amicus, the Seventh Circuit reverses. Acknowledging the absence of controlling authority about the admissibility of TRS calls, the panel analogizes such communications to the use of interpreters, which have routinely been admitted in federal courts for a century or more. As the CA is a randomly-selected, federally-regulated and highly-trained individual (laid out in exhaustive detail by Judge Wood), the prospect for error or corruption in the process would be small, even “vanishing low” writes the court (in describing the minute chance that the deaf caller would have a prior acquaintance with the CA).
The court finds that the evidence above, combined with the applicant’s excellent credentials and the doubtful, shifting explanations of the employer for its decision, present genuine issues of disputed fact for trial. (And to cap it off, the panel takes the irregular step of transferring the matter away from the original district court judge under Circuit Rule 36, typically only invoked when the judge has tried the case on the merits.)