Employment Law Daily Temp who complained, then wasn’t promoted to permanent, sees retaliation claims revived
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Wednesday, July 31, 2019

Temp who complained, then wasn’t promoted to permanent, sees retaliation claims revived

By Joy P. Waltemath, J.D.

The district court erred when it found the employee had not sufficiently stated a retaliation claim based on his employer’s failure to move him to a permanent position months before it instituted a hiring freeze.

Vacating and remanding summary judgment against an employee’s retaliation claims, the Seventh Circuit determined that he presented sufficient evidence to get to a jury. He was treated less favorably than other similarly situated temp employees, who were customarily promoted into permanent positions at around nine months’ tenure; his charges to the EEOC were close in time to this failure to promote; the investigating manager told the employee that his team leader’s complaint against him was the reason he was not made permanent; and the employer’s asserted reason for not promoting him—a hiring freeze—happened two months after temps were typically moved to permanent status (Stepp v. Covance Central Laboratory Services, Inc., July 26, 2019, per curiam.).

The manufacturer of medical test kits hired the employee, an African-American man, as a temporary assistant in its kit-production department. While it generally hires temporary employees for a one-year term, the employer often converts positive performers to permanent status within four to nine months. Although the employee received positive performance reviews during his first nine months, his employer did not make him permanent, but it did make two of his temp coworkers, hired just before he was, permanent at about nine months.

No temp to perm for you. Within the first three months, the employee told his employer that his team leader treated female and white employees better than male and African-American employees. He also confronted his team leader directly and said he might file discrimination charges. The investigating manager found no basis for his complaints. He later filed two formal charges of discrimination with the EEOC, one in his seventh month and another in his ninth month of employment.

Within two months of his charges, his team leader complained to the same manager that the employee often stared and him, smirked, and said “uh oh.” When the manager asked the employee about it, he said his body language had been “misinterpreted.” Shortly thereafter, the employer implemented a freeze on new hires in his department. The employee asked the manager whether he had not been converted to permanent status before the freeze because the team leader had complained to her about him, and she responded “yes.”

Appeal from summary judgment. The employee’s resulting pro se Title VII race and sex discrimination and retaliation lawsuit was dismissed on summary judgment. He appealed only his retaliation claim. Below, his employer had argued only that it did not offer him permanent employment because of the hiring freeze. But the district court refused to address his retaliation claim based on the failure to move him to permanent employment (his failure-to-promote claim) before the hiring freeze, reasoning that he had failed to allege it in his complaint.

Failure to promote to permanent employment. Agreeing with the employee, the Seventh Circuit found that his amended complaint adequately alleged the employer “discriminated against [him] by terminating his employment and refusing to hire him on as a permanent full-time employee because of his race (African-American), gender (Male) and because he filed Retaliation and Harassment complaints against his team leader.” Arguing that it lacked notice of this claim (in the employee’s pro se “69-paragraph complaint”), the employer also contended that the employee “waived” this claim of retaliation in his deposition.

No waiver by deposition. Not so, said the Seventh Circuit. His complaint explicitly alleged his employer “refus[ed] to hire him as a permanent full-time employee … because he filed Retaliation and Harassment com-plaints.” Besides, although an employee’s deposition testimony may doom his claim on the merits, it does not amend his complaint, and the employee did not concede at his deposition that his employer had not retaliated against him when it failed to offer him full-time employment, said the court. Instead, he said he “believe[d] [he] wasn’t offered full-time employment because of [his] complaints,” and as such, he was entitled to advance his allegation that he was not offered permanent employment at nine months in retaliation for his complaints.

Treated less favorably. Only causation remained at issue, then, and the Seventh Circuit determined that the employee’s evidence was sufficient for a jury to find retaliation. First, he had evidence that his employer customarily makes satisfactory temporary workers permanent between four and nine months after hire; it made two of his temp coworkers—hired just three weeks before him—permanent in their ninth months; and it did not do so for him. What was materially different? He had filed charges of discrimination in both his seventh and ninth months of employment. Plus, the manager told him that he was not made permanent because the team lead—about whom he had complained—had complained about him. Yet like these coworkers, he had positive work reviews.

Close in time. Second, it was only weeks between the protected activity and the adverse action here—in fact, the second EEOC charge was filed at the same time he reached the nine-month mark in his temp employment but was not converted to permanent employment. Alone, that’s not enough, cautioned the appeals court, but when suspicious timing is accompanied by corroborating evidence—and it was here—it was enough to avoid summary judgment.

Pretext. Plus, the court noted the employer’s only explanation for not promoting the employee was the hiring freeze—but the hiring freeze occurred two months after the employee reached the nine-month mark; the freeze did not explain why he wasn’t moved to permanent status at the same time his coworkers were. The employer’s insistence that it did not promote him because of the freeze could suggest that retaliation was its true motive for not making the employee permanent, reasoned the court.

Finally, the manager’s statement that the employer chose not to make the employee permanent before the hiring freeze because the team leader had complained about him also supported an inference of retaliation. She was the employer’s agent, and she was authorized to investigate and interview workers, so the scope of her agency included speaking about personnel decisions, including the team leader’s complaint, which the court characterized as flimsy.

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