In Title VII retaliation actions, courts often focus on “temporal proximity” – the closeness in time between the protected activity and the employer retaliation – as circumstantial evidence of causation. But this shorthand can be misleading. In this case, the Seventh Circuit reminds us that an employer may be held liable under this provision even where there has been a substantial gap between a complaint of race discrimination and the employee’s termination. Here, the manager who brought down the axe down on the employee believed that the employee had raised a fresh complaint, even though the record was otherwise.
Burnell v. Gates Rubber Co., No. 10-3490 (7th Cir. July 27, 2011): Plaintiff Burnell had a history of complaining about race discrimination in training, promotion and harassment, principally during his early tenure in the tool room (1993 to 1996), but as recently as early 2006.
In December 2006, Burnell had another dispute with a supervisor (named Todd Gates), who accused him of insubordination when he failed to “turn down” (i.e., grind down) a half-dozen tools. Gates gave Burnell a written warning, and Burnell in turn protested the warning to higher management (Totonchian), complaining that he did not follow the order because he could not do it safely.
“At some point, according to Burnell, Totonchian accused Burnell of ‘playing the race card’ and told him to find another job if he did not enjoy working at Gates Rubber.” Totonchian apparently wanted to fire Burnell on the spot, but the company instead insisted that Burnell execute a “commitment letter” that essentially admitted fault. When Burnell refused to sign it, he was fired.
Burnell sued for race discrimination and retaliation under 42 U.S.C. § 1981 and Title VII. The district court dismissed the case on summary judgment.
While the Seventh Circuit affirms dismissal of the race discrimination claim, it reverses summary judgment on the retaliation claim. Notably, Burnell had not complained about race discrimination when he refused the tool “turn down” assignment. But the “race card” comment signalled that at least one manager though that the complaint was about race:
“…Totonchian’s ‘race card’ comment suggests he may have believed Burnell’s complaint about being written up was racially based. ‘[T]emporal proximity is only evidence of causation, not a separate element of the prima facie case, and thus there will be cases in which a plaintiff can demonstrate causation despite a substantial time lag.’ Lalvani v. Cook County., Ill., 269 F.3d 785, 791 (7th Cir. 2001). Burnell certainly hasn’t proven causation by a preponderance of the evidence, but his history of complaints and Totonchian’s ‘race card’ statement are enough to allow Burnell to survive summary judgment on his retaliation claim.”
The “race card” appears to be the trump!