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  • InsideTrack
  • March 04, 2020

    No Pretext: Wisconsin Employers Win Federal Appeals in Discrimination Cases

    In two recent cases, the employee alleged that the employer provided pretextual reasons for taking discriminatory action. Those arguments were rejected in both cases.

    Joe Forward

    woman laid off

    March 4, 2020 – In a pair of recent decisions, the U.S. Court of Appeals for the Seventh Circuit rejected discrimination and retaliation claims brought against employers under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA).

    In two recent cases, the employee alleged that the employer provided pretextual reasons for taking discriminatory action. Those arguments were rejected in both cases, one involving a state agency and the other involving a health insurance company.

    Employer Did Not Violate Title VII

    In Robertson v. State of Wisconsin Department of Health Services, No. 19-1179 (Feb. 7, 2020), a three-judge panel rejected the claim that the employer violated Title II’s anti-retaliation provision, which prohibits retaliation against employees for filing a complaint or participating in an investigation concerning an unlawful employment practice.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    The plaintiff, Vanessa Robertson, filed the complaint against the Wisconsin Department of Health Services (DHS), her employer. Robertson was serving as the deputy director of a DHS bureau when an employee registered a complaint against Robertson’s boss.

    The complaint alleged that Robertson’s boss, bureau director Ed Kamin, made a discriminatory remark. Robertson and the employee informed human resources, and investigation was conducted. Kamin ultimately resigned his post.

    Robertson was designated acting director of the bureau while the open recruitment process took place. She was one of three finalists for the job, but was not selected. Robertson remained deputy director under new bureau director Tonya Evans.

    Robertson later complained that Evans undermined her work, diminished her authority as deputy director, and treated her unfairly. The alleged facts of this unfair treatment were outlined in Robertson’s lawsuit against DHS and her supervisors, including Evans.

    Shifting Burdens on Pretext

    The lawsuit asserted that DHS (and her bosses) retaliated against her for reporting the alleged discriminatory conduct of her prior boss, who ultimately resigned. That is, DHS did not promote her to director, and the retaliation continued through Evans’ conduct.

    The U.S. District Court for the Eastern District of Wisconsin granted summary judgment in favor of DHS. Recently, the Seventh Circuit Court of Appeals affirmed that decision.

    The three-judge panel noted that under Title VII of the Civil Rights Act, 42 U.S.C. section 2000e-3(a), employers cannot discriminate against employees who challenge or participate in challenging an alleged unlawful employment practice.

    For the retaliation claim to stick, however, there must be a “but-for” causal connection between a statutorily protected activity and the materially adverse action.

    Even if that connection is established, “an employer may produce evidence which, if taken as true, would permit the conclusion that it had a legitimate non-discriminatory reason for taking the adverse employment action,” wrote Judge Kenneth Ripple.

    “If the employer meets this burden, the plaintiff, to avoid summary judgment, then must produce evidence that would permit a trier of fact to establish, by a preponderance of the evidence, that the legitimate reasons offered by the employer were not its true reasons but were a pretext for discrimination,” Judge Ripple continued.

    In determining pretext, Judge Ripple noted, “our sole focus is on whether the employer’s stated reason can be characterized as a falsehood rather than an honestly held belief.”

    No Causation

    The district court had ruled that Robertson failed to show that DHS did not promote her in retaliation for her prior involvement in reporting alleged discriminatory activities.

    “After examination of the record, we must agree with the district court’s conclusion that Ms. Robertson does not have direct evidence establishing causation,” Ripple wrote.

    Further, the panel did not find persuasive Robertson’s circumstantial evidence that her non-promotion was caused by her involvement in reporting her former boss’s conduct.

    Robertson put forth evidence that she was the most qualified candidate and her former boss could have influenced the selection committee’s decision to bypass her.

    DHS argued that Evans was the better overall candidate, which meant Robertson had to show that this stated reason was pretextual and “unworthy of credence.”

    But the panel noted evidence that DHS determined Evans and Robertson were both highly qualified, but Evans possessed attributes that weighed in her favor.

    “Ms. Robertson’s contention that she was better qualified cannot carry the day for her,” Judge Ripple, noting that DHS considered her and did not dismiss her candidacy out of hand. She was installed as interim director and a finalist for the permanent position.

    No Materially Adverse

    Robertson argued that even if her non-promotion was not retaliatory, her new boss (Evans) retaliated against her by undermining her role and treating her poorly.

    The district court ruled that Robertson failed to show Evans’s actions amounted a materially adverse action against her, and the three-judge panel agreed.

    The panel noted that Title VII protects against discrimination, “not animosity or juvenile behavior,” citing Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101 (7th Cir. 2012).

    The panel also noted previous cases show an action is not “materially adverse” unless there’s a “significant alteration to the employee’s duties,” such as a change in work hours, compensation, or career prospects. “Snubbing” is not actionable, Ripple noted.

    Though Robertson offered some evidence that Evans undermined her job, the panel ruled that Robertson “failed to produce sufficient evidence that she suffered a materially adverse action,” a prerequisite to proving a retaliation claim under Title VII.

    Stelter v. WPS: Employer Did Not Violate ADA

    In another recent discrimination case – Stelter v. Wisconsin Physician’s Service Ins. Corp., No. 18-3689 (Feb. 20, 2020), the Seventh Circuit Court of Appeals rejected an employee’s claim of discrimination under the Americans with Disabilities Act (ADA).

    Mary Lou Stelter was employed in sales support at the Wisconsin Physicians Service Corporation (WPS) when she injured her back in 2014. She filed an injury report and requested time off. She returned to work about two month later.

    A few months after returning, Stelter was placed on a performance improvement plan, based on a performance review that indicated she needed to improve. It wasn’t her first negative performance review. She had received negative reviews in 2010 and 2013.

    Several months later, Stelter’s supervisor expressed frustration that Stelter was not requesting additional training and left work early for appointments without notice. Several months after that, in December 2014, WPS terminated Stelter’s employment.

    Firing Not Pretextual

    Stelter filed a lawsuit for discrimination and retaliation under the ADA, which prohibits employers from discriminating on the basis of disability.

    The district court rejected Stelter’s claim, concluding she could not prove she was qualified to perform the essential functions of the job, an element of the claim.

    WPS brought forth evidence that Stelter lacked understanding of large group insurance products, failed to follow directions, and did not provide notice of absences.

    Stelter argued that these reasons were pretextual – they fired her because she sustained back injuries at work and was disabled by ongoing back pain.

    The panel, in an opinion by Judge William Bauer, noted the employer’s reasons for her firing were reasons identified in previous performance reviews, before her injury.

    “[N]o reasonable jury could conclude that Stelter was terminated on account of a disability,” Judge Bauer wrote.

    The panel also noted that ADA discrimination claims require plaintiffs to show the disability was the “but-for” cause of the termination, and the record showed that WPS terminated Stelter for absenteeism and a deficiency in understanding WPS products.

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