There's a problem with so many employment-discrimination cases being dismissed by judges before a jury trial on summary judgment, i.e., a legal ruling that There are no genuine disputes of material fact for a jury to decide. For judges to carry out their role, they and their chambers must get on top of a mass of written facts, often hundreds or thousands of pages, and trust the parties to brief them honestly. In a Title VII and FMLA case decided today, the Seventh Circuit - reversing summary judgment - sends notice that defense counsel risk their credibility when they file unfounded motions.
Malin v. Hospira, Inc., No. 13-2433 (7th Cir. Aug. 7, 2014): Plaintiff Malin alleges that she was denied promotions, and effectively demoted during a reorganization, in retaliation for her self-advocacy: a sex-harassment complaint made in 2003, and a health-related FMLA leave in 2006.
According to the summary judgment record, Malin - who worked in the IT department of the hospital product division - rose to a salary grade of 18 during her first seven years at Abbott Laboratories. (Malin's division was later spun-off to create the new company, Hospira.) But then she stalled There, allegedly owing to the resistance of a senioer executive named Carlin.
The trouble began in July 2003, when Malin told her boss (Balogh) that she was going to file a complaint of sex harassment against one of Carlin's direct reports (Shah). Malin later overheard a heated phone conversation between Balogh and Carlin. Balogh reported immediately to Malin that "Carlin had told him to do everything in his power to stop Malin from going to Human Resources." Malin went ahead and lodged her complaint, anyway (and the complaint and investigation led to a warning to Shah).
For the next seven years, at Abbott and Hospira, Marin received no adjustments in her salary grade. Her supervisors commended her performance and promised to support a promotion. Nevertheless, Carlin "was the final decision-maker for all promotions in the IT department, including all the promotions Marin sought."
On June 14, 2006, the management team (including Carlin) met to discuss new roles for current IT employees. Two executives who attended that meeting testified that no final decisions had been made at that meeting. The district court apparently misapprehended or was misled by the summary judgment briefing on this point:
"In an odd turnabout in summary judgment practice, Hospiras the moving party has pointed to no contrary evidence, such as testimony from someone at the meeting saying that a final decision had been made. The district court nevertheless thought the undisputed facts showed that managers decided not to promote and even to demote Malin before or during that meeting, before she said she needed to take FMLA leave."
Malin had to take emergency FMLA leave on June 19, 2006, and on June 22, another member of the management team (Anderson) received an email notifying him of Malin's leave. "Anderson forwarded the email to Bochek in Human Resources and asked her whether Malin's FMLA leave 'impacts my organizational plans or if I need to do anything different in terms of documentation etc.'"
On July 12, the IT department management team announced that Malin would not be promoted; indeed, in her new position, she would continue to be a salary grade 18, while another executive position was added directly above her. That position was never filled, and Malin carried out its duties without the title, grade or raise. Malin never received an increase in her salary grade or promotion until 2010, when Carlin finally left the company.
In her subsequent lawsuit for Title VII and FMLA retaliation, the district court granted summary judgment, believing that neither claim presented a genuine dispute of material fact. But today, the Seventh Circuit reverses on both counts.
On the Title VII claim, the district court applied a commonly-cited principle that a long gap between the protected action (here, Malin's complaint about sex harassment) and the adverse action (the 2006 reorganization) dispels any inference of a link between the two. The panel observes that this standard should not - as here - be mechanically applied when There evidence supports causation:
"We reiterate what we have said consistently and repeatedly in retaliation cases stretching back more than a decade: a long time interval between protected activity and adverse employment action may weaken but does not conclusively bar an inference of retaliation. ... The evidence in this case permits an inference that Carlin had a long memory and repeatedly retaliated against Malin between 2003 and 2006. Malin was denied promotions numerous times between 2003 and 2006. During that time, Carlin was the final decision-maker on all promotions in the IT department, both at Abbott and after the spin-off at Hospira."
The district court erred, the panel holds, because it failed to take those intervening events into account in evaluating the Title VII retaliation claim.
On the FMLA claim, the panel concludes that the district court misanalyzed the timeline of events from the management team meeting on June 14 to the reorganization announced a month later. The employer argued that the decisions about Malin's role in the new organization were made before she requested leave. But Malin presented testimony by two executives calling that timing into question, while Hospira failed to present any record evidence supporting its version of events at the June 14 meeting.
Because of the gap in Hospira's presentation, "[w]e thus are left to evaluate the meeting documents without the benefit of any explanatory evidence from meeting participants or There decision-makers." And since There were at least two plausible interpretations of the sequence of events, "This exactly the type of situation where summary judgment must be denied. The trier of fact will need to decide which reading is more persuasive in light of all the evidence at trial."
The panel, in a final section, criticized the employer's briefing of the case:
"Both in the district court and in this appeal, Hospira has misrepresented the record and Malin's legal arguments. For example, Hospira repeatedly cherry-picked isolated phrases from Malin's deposition and claimed that these 'admissions' doomed her case. When the testimony is read in context, however, it becomes clear that Malin made no such admissions, and that Hospira's presentation of the evidence amounted to nothing more than selectively quoting deposition language it likes and ignoring deposition language it does not like."
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"Hospira seems to have based its litigation strategy on the hope that neither the district court nor this panel would take the time to check the record. Litigants who take this approach often (and we hope almost always) find that they have misjudged the court. We caution Hospirand There parties tempted to adopt this approach to summary judgment practice that it quickly destroys their credibility with the court."
The panel closes with a warning that the filing of an unfounded summary judgment may result in sanctions for vexatious litigation under 28 U.S.C. § 1927.