5-8-12; Seventh Circuit orders demoted employee reinstated to previous position finding demotion was in response to employee’s protected activity which occurred two years prior

In Hicks v. Forest Preserve District of Cook County, Illinois, U.S. Court of Appeals for the Seventh Circuit, Case No. 11-1124 (Decided April 18, 2012), the employee filed a discrimination complaint against his supervisor in 2006. In 2008 the employee was demoted and claimed the demotion was in retaliation for his 2006 complaint. The court found the time between protected activity and the adverse employment actions was not a bright line rule and the employee had additional direct evidence of the supervisor’s animosity. The employer was ordered to pay a jury award of $30,000 and reinstate the employee to his former position.

As most managers know, Title VII and related Federal Statutes prohibit discrimination. The last few years have seen a rise in “retaliation claims.” To prevail on a retaliation claim, a Plaintiff must prove he/she opposed an unlawful employment practice; that he/she suffered an adverse employment action and the adverse employment action was caused by their opposition to the unlawful practice. In this recent Seventh Circuit case Plaintiff Hicks, participated in a 2006 investigation of discrimination leveled against his supervisor Thompson by another employee. Hicks later brought his own claim of discrimination against Thompson. During the two years while Hicks worked as a truck mechanic in his employer’s garage he received 28 disciplinary action forms from his supervisor. Eventually the employer offered Hicks a choice of either accepting a demotion to a non-mechanic position and a significant pay cut or potentially face further disciplinary action up to and including termination. Hicks accepted the demotion, but immediately filed a charge with the EEOC and brought suit against his employer.

Prior to his demotion in 2008, Hicks received three infractions or disciplinary write-ups in a single day. The evidence at trial further revealed Thompson instructed Hicks’ immediate supervisor to “write up Hicks any time, all the time if anything he does is incorrect, write him up.” Further, the immediate supervisor testified Thompson had said Hicks “needed to be fired,” and Hicks “needed to be gotten rid of” since he had filed a charge against Thompson. Following a jury trial, Hicks was awarded $30,000.00 on his retaliation claim. In addition to the money damages, the district court ordered Hicks reinstated to his previous position.

On appeal, the employer argued the only adverse employment action suffered by Hicks was a voluntary demotion. The District Court found that given a choice between demotion and Hicks’ belief he would be fired, a reasonable jury could find the demotion was involuntary. The employer further argued Hicks’ participation in a protected activity (supporting a co-worker’s claim and filing his own discrimination claim two years earlier) was too distant in time to causally connect the adverse employment action with the protected activity. However, the court held the evidence and testimony, including the supervisor’s statements that Hicks needed to be terminated because he had filed charges of discrimination against Thompson, were sufficient direct evidence of retaliation.

We note the passage of time between the protected activity and the adverse employment action is not a “bright line” rule, and the trial court’s consideration of the time between the protected activity (supporting a coworker’s discrimination charge and filing his own charge in 2006) and the adverse action (demotion in 2008) is a fact-intensive analysis left to the trial court’s discretion. Finally, the employer argued against reinstating Hicks to his old position, stating the position had already been filled and Plaintiff would again be supervised by Thompson with whom he had a decidedly less than ideal working relationship. The court again ruled against the employer, stating the remedy for victims of discrimination is reinstatement; to make the victim of discrimination whole he should be reinstated, even if that requires pushing out an employee hired to fill the Plaintiff’s old position.

The Hicks case provides a clear illustration to all supervisors/managers of what not to do. Thompson’s venting to the immediate supervisor and providing the “need to get rid of” instructions to the immediate supervisor were powerful evidence in the Plaintiff’s favor. Additionally, it is difficult to imagine a situation where the same employee would receive three write-ups for disciplinary action on the same working day. Once an employee has made a claim for discrimination the employee joins a protected class and the employer must ensure any discipline or adverse action is well grounded and not payback for an earlier claim. In response to the actions of the supervisor, the employer was not only forced to pay a $30,000.00 judgment, they were forced to reinstate the employee.

Although sexual harassment training for supervisors and new hires is common practice, the prudent employer will also train on discrimination and retaliation. The actions and words of the manager become the actions and words of the company for discrimination and retaliation purposes. If your supervisory staff is in need of an annual refresher on discrimination and retaliation prevention, our attorneys can provide the training and custom format the classes to fit your working schedule.

This article was researched and written by Rodney Phillipe, J.D. Please feel free to contact Rodney directly about it at rphillipe@keefe-law.com. We appreciate your thoughts and comments.