A Seventh Circuit panel splits over whether an employee presented a circumstantial case of Title VII retaliation by evidence that a decision-maker uttered, fewer than two weeks before the employee’s termination, that “if [the plaintiff] wanted to choose all of [her] days [off], then [she] should not have complained [about discrimination] in the first place,” and that the plaintiff had “open[ed] up a can of worms.” The majority holds that the evidence falls short, while the dissent would find at least a mixed-motive case presented by this record.
Amrhein v. Health Care Service Corp., No. 07-1460 (7th Cir. Oct. 20, 2008): Plaintiff was one of eight “[g]roup specialists at HCSC [who] provide services to employer groups that have insurance through Blue Cross/Blue Shield.” Plaintiff Amhein found herself accused in December 2004 of misuse of phone services at her place of employment, after she complained of being discriminated against in assignments and advancement because of her sex. The object of her complaints was a male employee named Redpath.
In response to the accusation of misconduct “Amrhein did not believe her personal telephone use was particularly excessive and argued to [her supervisor] Benner that Redpath’s use exceeded her own, and that Redpath, who did not receive a warning, should have.” During a meeting about the disciplinary action, “Amrhein stated that she felt she was being treated significantly less fairly than Redpath by Benner and HCSC. She also suggested that she might seek an EEOC mediator, or ‘file a complaint’ in order to obtain one.” Eventually, she informed the staff of her intention file an EEOC charge.
There then followed the events that made up the plaintiff’s retaliation claim:
“On February 4, 2004, Woods sent an e-mail to her supervisor asking for help in addressing their ‘options’ with Amrhein. Woods noted that Amrhein was a ‘huge challenge’ and was ‘disruptive to the unit’ and ‘costing us a huge amount of time and resources.’
“On February 18, 2004, Marquedant met with several group specialists, including Amrhein, to discuss new policies regarding the scheduling of personal time off or “PTO.” During the meeting, Amrhein complained about the scheduling of her PTO, to which Marquedant responded that ‘if you wanted to schedule all of your days, you should not have made the complaint,’ and referenced Amrhein’s ‘opening up a can of worms.’ The argument escalated quickly; witnesses characterized Amrhein’s behavior in the meeting as argumentative.”
During the same period, Amrhein was detected on the phone disclosing supposedly confidential information to a customer representative named Ms. Perricone. By March 1, 2004, Amrhein was fired for the disclosure and insubordination related to the February 18, 2004 meeting.
The district court, and the panel majority in the Seventh Circuit, held that these facts did not present a genuine issue of material fact about Title VII retaliation. The panel held that the delay between the employee’s threat to file an EEOC charge and her termination (deemed to begin with the December 2004 threat to file a discrimination complaint) vitiated causation. Moreover, it found the balance of circumstantial evidence insufficient to warrant an inference of retaliation, because she supposedly could not identify any comparable employees, i.e., with the same history of violations of work rules.
But the dissent, issued by Judge Rovner, found that the same evidence presented a genuine issue of material fact about mixed-motive harassment:
“The timing of those statements, uttered by a decision-maker in the termination, a few weeks after an internal investigation into Amrhein’s charges of discrimination and her threats to go to the EEOC, a few weeks after another decision-maker complained that Amrhein was a ‘huge challenge’ and costing the company time and resources, and a scant twelve days before the termination, imply a retaliatory intent. Because of that evidence, I believe we should treat this as a mixed motive case, shifting the burden to the employer to demonstrate that it still would have terminated Amrhein for reasons other than retaliation.”
The dissent does not expressly refer to the post-1991 Act problem that the amended Title VII does not itself recognize mixed-motive retaliation under 42 U.S.C. § 2000e-5(g)(2)(B) — as the Seventh Circuit self has already held (McNutt v. Board of Trustees of Univ. of Ill., 141 F.3d 706, 709 (7th Cir. 1998)) — so that liability might be vitiated on a finding that the employer would have made the same decision. The dissent states the correct standard that “an employer accused of retaliating against an employee for exercising her rights under Title VII may avoid liability by proving by a preponderance of the evidence that it would have made the same employment decision even if it had not taken the plaintiff’s protected activity into account.”
The dissent observes that “[s]ummary judgment will rarely be granted in a mixed motive case once the plaintiff has presented direct (including circumstantial) evidence that a forbidden factor contributed to the employer’s decision to take an adverse action against the employee.” Finally the dissent noted that “Amrhein’s inability to point out a comparable employee, one who had a similar disciplinary record and who was managed by the same supervisor, is not determinative in a direct evidence/mixed motive case. Although evidence of a comparable employee is considered helpful, it is not required.”
Thus Judge Rovner reminds us that, even with the widespread disillusionment the plaintiffs’ bar suffered with mixed-motives in the wake of Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), some judges find that there is still potency in these claims.