A plaintiff’s success story in an ADA retaliation case: even a one-line retort in an argument with a manager, “Aren’t you being discriminatory,” may constitute protected opposition to discrimination. The Seventh Circuit reverses summary judgment and sends the case back for trial.
Casna v. City of Loves Park, Ill., No. 07-1044 (7th Cir. July 24, 2009): Plaintiff, who is hearing-impaired, was a temporary appointee with the city’s police department. She got into an altercation with her direct supervisor (Elliot) over her failure to complete certain paperwork as requested. This led to the following argument:
“Casna sought out Elliot the following morning to apologize for not filing the reports immediately, explaining that she had not heard Elliot make that request. Elliot knew that Casna had a hearing impairment, but she also had seen Casna listening to music at her desk once and was frustrated by what she perceived as inconsistencies in Casna’s abilities; consequently, she asked Casna to explain specifically what she could and could not hear. When Casna was finished, Elliot snapped, ‘How can you work if you cannot hear?’ Casna, who testified that she felt threatened by this comment, countered, ‘Aren’t you being discriminatory?’ Taken aback, Elliot refused to speak further with Casnand hurried off to consult with Chief Carrigan, who instructed her to prepare a written evaluation of Casna. Elliot testified that this was the first time that she had ever conducted a written evaluation of a subordinate during the subordinate’s first year on the job, and that she had never evaluated a probationary employee before the full six months were up.”
Her termination was recommended the following day, citing the altercation above.
The panel, in addition to reversing summary judgment on a due-process claim, returns an ADA retaliation claim for trial. It finds that the one-sentence complaint was enough to constitute protected activity:
“In Phelan v. Cook County, 463 F.3d 773 (7th Cir. 2006), another Title VII case, we . . . [held] that informal complaints about sexual harassment from coworkers can provide an employer with sufficient notice to establish employer liability, even if the employee’s alerts did not technically comply with the company’s notification procedures. Id. at 786. Other circuits have applied similar reasoning to retaliation claims, holding that statutorily protected activity ‘can range from filing formal charges to voicing informal complaints to superiors.’ Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004) (emphasis added); see Shannon v. Bellsouth Commc’ns, Inc., 292 F.3d 712, 716 n.2 (11th Cir. 2002); Somoza v. Univ. of Denver, 513 F.3d 1206, 1213 (10th Cir. 2008). We think this an appropriate application of Phelan and agree that an informal complaint may constitute protected activity for purposes of retaliation claims.”
The panel also holds that a one-day gap between the statement and the recommendation that she be terminated early constituted sufficient evidence, by way of “temporal proximity,” of a causal connection.