Why on earth would an employer defending a federal Title VII sex discrimination lawsuit wait until the day after the plaintiff sits for her deposition to serve her with a Notice of Disciplinary Action, referring to events going back four months? The Seventh Circuit finds direct evidence that this adverse action was motivated by retaliation, reverses summary judgment and sends the plaintiff's retaliation claim back for a trial.
Benuzzi v. Chicago Public Schools, No. 10-3021 (7th Cir. July 21, 2011): The plaintiff, a white female custodian at Chicago Public Schools, alleged that a African-American principal, Cheryl Watkins, regularly "declined Benuzzi's repeated requests to work the morning shift, and suspended her without pay three times." Benuzzi eventually sued the employer (and the principal, personally) under several federal laws for gender, race, age, and disability discrimination and retaliation.
The record reflected that three days after the employee commenced her lawsuit, "Watkins and [assistant principal] Anderson conducted annual employee evaluations," and while "Benuzzi requested an evaluation, . . . Watkins refused to give her one." Within days of waiving service of the federal civil complaint in Benuzzi's case, Watkins presented Benuzzi with a cautionary notice about an alleged, recent angry outburst at the workplace.
The crux of the retaliation claim, though, was that on February 26, 2010, the plaintiff received a "Notice of Disciplinary Action," which according to the opinion "is more serious than a cautionary notice; it is a harbinger of formal disciplinary proceedings." The notice came one day after plaintiff's own deposition in her discrimination case.
"Benuzzi . . . completed her deposition on February 25, 2010. Watkins was present. The next day, Watkins issued Benuzzi a memorandum restricting her presence at Pershing to the hours of 5:45 a.m. to 2:15 p.m., even in the event of an emergency, unless she obtained permission from Watkins or the new assistant principal, Tamara King. Watkins also issued a lengthy Notice of Disciplinary Action that referenced nine separate incidents dating back to October 2009. The notice enumerated various transgressions, all of which Benuzzi disputes or denies entirely, such as failure to answer a walkie-talkie, failure to turn on the heat, failure to remove tables from the lunchroom, failure to complete agendas for custodial staff meetings, the falsification of information to discipline a subordinate, and the physical assault of custodian Armour. The most recent (and most serious) incident, the alleged assault of Armour, occurred on February 2, 2010, three weeks prior to the issuance of the notice."
The district court - after disregarding the plaintiff's statement of facts, as a sanction for her supposed violation the local rules (i.e., filing an excessively long statement without leave of court) - granted summary judgment to the defendant on all of the claims. On appeal, the Seventh Circuit affirms summary judgment on the discrimination claims, but remands for a trial on the retaliation claim.
In support of the plaintiff's retaliation claim, the panel notes that the post-deposition disciplinary actions may have been materially adverse to the plaintiff.
"Whether the Notice of Disciplinary Action and hours restriction memorandum she received the day after she gave her deposition were materially adverse present much closer questions that will be best resolved by a jury. Generally, written warnings, standing alone, do not constitute materially adverse actions; the post-complaint cautionary notice does not trouble us. But context is a crucial consideration in Title VII retaliation actions, and in this context, we agree with Benuzzi that the sweeping Notice of Disciplinary Action citing petty misdeeds that allegedly occurred months ago, coupled with the unexplained memorandum restricting her access to Pershing, 'could constitute an adverse action within the meaning of the direct method of proving retaliation. . . '" (Citations omitted.)
Moreover, the record strongly hinted that the disciplinary actions were motivated by retaliation for Benuzzi commencing her discrimination lawsuit. "The incredibly short span of time separating Benuzzi's deposition, at which Watkins was present, from her receipt of two arguably adverse documents authored by Watkins might reasonably give rise to the inference that the events were linked."