Case emphasizes discrimination charge relationship to lawsuit allegations; also key points for retaliation cases
Sitar v. Indiana Dept. of Transp. (7th Cir. 9/29/03)
In this sex discrimination, sexual harassment, and retaliation case, the Seventh Circuit affirmed summary judgment for the employer on the discrimination and harassment claims, but reversed on the retaliation claims.
Problems with the charge
The problem for the plaintiff on the discrimination and harassment claims was the failure to include them in the EEOC charge, which mentioned only retaliation. The court applied following principles:
“Generally, a plaintiff may not bring claims under Title VII that were not originally included in the charges made to the EEOC. . . . The only qualification to this principle applies to claims that are ‘like or reasonably related’ to the EEOC charge, and can be reasonably expected to grow out of an EEOC investigation.”
Here the plaintiff checked only the retaliation box on the charge form, alleging that her termination was in retaliation for an earlier complaint about sex discrimination. The court said:
“Normally, retaliation, sex discrimination, and sexual harassment charges are not ‘like or reasonably related’ to one another to permit an EEOC charge of one type of wrong to support a subsequent civil suit for another. . . . Those different claims may be so linked, however, where they are ‘so related and intertwined in time, people, and substance that to ignore that relationship for a strict and technical application of the rule would subvert the liberal remedial purposes of the Act.”
Here, there was no such linkage because the “sex discrimination and sexual harassment claims involve a separate set of incidents, conduct, and people, spanning over a period of time prior to the filing of her complaint and more than three months prior to her termination.”
The ability to prevail on this rather technical defense of failure to properly exhaust EEOC procedures highlights the importance of examining the charge in every employment discrimination lawsuit to determine whether such a defense is available. If it is, it’s great summary judgment material. If it’s even arguable, it lowers the value of the case for settlement.
Retaliation standards
The Seventh Circuit’s discussion of the retaliation claims also illustrates several important points.
First, the claim that the plaintiff’s transfer was retaliatory was rejected because prior to the transfer she had complained only that she felt picked on, not that she was discriminated against because of sex or gender. The court said:
“Although an employee need not use the magic words ‘sex’ or ‘gender discrimination’ to bring her speech within Title VII’s retaliation protections, ‘she has to at least say something to indicate her [gender] is an issue. An employee can honestly believe she is the object of discrimination. but if she never mentions it, a claim of retaliation is not implicated, for an employer cannot retaliate when it is unaware of any complaints.”
The court also said, however, that job transfers like the one involved “that lead to significantly diminished responsibilities and substantially changed working conditions can be retaliatory actions” upon proper proof of retaliatory motivation.
Finally, the court’s discussion of its finding that the plaintiff had established a prima facie case of retaliatory termination indicates the standards for the direct and indirect methods of growth it applies to retaliation cases:
“Under the direct method, the plaintiff must present direct evidence of (1) a statutorily protected activity; (2) an adverse action taken by the employer; and (3) a causal connection between the two.”
“Under the indirect method, the plaintiff must show that (1) she engaged in a statutorily protected activity; (2) she performed her job according to her employer’s legitimate expectations; (3) despite her satisfactory job performance, she suffered an adverse action from the employer; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity.”
Here, close timing sufficiently established causation for the direct method even though several months passed between the plaintiff’s complaint and her termination. The evidence showed that there was close timing (same day) between the termination and when the individual who terminated her learned he was being disciplined for his role in the conduct she complained about.
Timing is the plaintiff’s best friend in retaliation cases. Employers should be extremely cautious about terminating employees who have complained about discrimination at or near the time the complaint occurs (or, as in this case, has significant negative consequences).
