In a short-but-sweet opinion, the Seventh Circuit reverses summary judgment in a Title VII retaliation case, where the district court failed to perceive a genuine dispute of material fact: specifically, when company management first became aware of the plaintiff's alleged violation of work rules. By the plaintiff's account, management knowingly overlooked her alleged breach .... until she complained about sex harassment.
Donley v. Stryker Corp., No. 17-1195 (7th Cir. Oct. 15, 2018): The following alleged timeline led to this action -
(1) the plaintiff, a corporate‐accounts director, took embarassing pictures of a vendor's supposedly drunken CEO at a team meeting in Vail, Colorado in the summer of 2014;
(2) plaintiff's supervisor Thompson, seeing the pictures on plaintiff's mobile phone, was reportedly "unamused" and ordered Donley to delete them;
(3) Thompson told human resources manager Ferschweiler about the photos, and no action was taken at that time;
(4) in August of that year, Donley engaged in the protected activity, i.e., made an internal sex-harassment complaint against a manager on behalf of another employee;
(5) the company opened an investigation of the manager's alleged harassment (eventually leading to the termination of the manager);
(6) the company also opened an investigation into Donley taking the embarassing photos in Vail; and
(7) Donley was fired, according to the defendant, for taking the photos.
The district court granted summary judgment on Donley's Title VII retaliation claim. The court deemed "irrelevant" any dispute over when Thompson (the decisiomaker) learned about the photographs, because any decision to fire Donley supposedly came before Thompson knew about plaintiff's internal sex-harassment complaint
The Seventh Circuit reverses in a nine-page opinion. It holds that the district court erred by accepting the defendant's version of the timeline. As the panel summarizes:
"From Donley's point of view, Thompson had originally told her to delete the photographs but had not thought any further response was needed. And Ferschweiler had learned of the Vail incident without taking any action herself. As Donley views the evidence, Ferschweiler and Thompson did not conclude that she should be fired over the Vail incident until after Ferschweiler and/or Thompson had learned that she had engaged in activity protected by Title VII, complaining about another manager's sexual harassment of another employee."
Bolstering plaintiff's account is the defendant's EEOC position statement, which declares that Thompson first "saw the [offending CEO] photographs at the team meeting in Vail." This, according to the panel, serves both to "contradict Stryker's defense in the lawsuit" - that the decision to fire was made before they learned about Donley's harassment complaint" - and to suggest that Thompson did not think Donley's actions in Vail warranted her firing, at least initially.
Thus, the plaintiff presented a record that supported causation: the suspicious timing of her firing (only six weeks after she filed the complaint); more favorable treatment accorded the alleged harasser, who was also fired for misconduct but was given a severance package; and conflicting explanations by the employer that supported an inference of pretext.