City's Failure To Promote (Four Times) Is Not Actionable Where Interview Process Was Reasonable And Fair
STEPHENS v. ERICKSON (June 30, 2009)
Lesley Stephens, an African American, has worked for the City of Chicago since 1979, except for a disability leave from 1988-1993. He has been a truck driver, an acting foreman, and an accident adjuster, all within the Department of Fleet Management. He filed a lawsuit against the City in 1997, alleging that it engaged in racially discriminatory hiring and promotion practices. Shortly after he settled the lawsuit in 2004, Stephens applied for four promotions. He was passed over each time. He again brought suit, alleging violations of § 1981 and Title VII. He claims that the City retaliated against him for his earlier lawsuit and his complaints of discrimination. The district court granted summary judgment to the City. Stephens appeals.
In their opinion, Judges Kanne, Wood and Sykes affirmed. The Court stated that it would apply the same elements to the claims under § 1981 and Title VII. Stephens chose to establish his retaliation claim under the direct method of proof. The principal issue on appeal was the causal connection between Stephens' protected activity and the City's failure to promote him. The Court set out the promotion procedure in detail – and stated that Stephens produced no evidence that any of the several employees who interviewed him for the promotions even knew of the earlier lawsuit or his prior complaints of discrimination. The Court noted that in each case, the City interviewed several applicants, rated the applicants on the same criteria, and recommended the applicant with the highest score. The Court also rejected Stephens' argument that the head of the department retaliated against him by pre-selecting his preferred candidate by choosing him for an "acting" position, leading the interviewers to a predetermined selection. Nothing in the record linked the department head to any of the interviews or any of the interviewers. The Court concluded that Stephens simply had not produced evidence sufficient to create an inference of retaliation. The Court also concluded that the retaliation allegations other than failure to promote (menial job assignments, intimidation, segregation, etc.) would not dissuade a reasonable employee from making a charge of discrimination and were therefore not "materially adverse" and actionable.
Dynetta Cole was a receptionist for the State of Illinois. Her first year on the job was marked with many complaints about her performance, attendance and personality. After she was injured in a car accident, she took FMLA medical leave. She returned to work on a part-time basis after several weeks. Her performance and attendance issues continued. Cole’s supervisors ultimately presented her with an "employee improvement plan." The plan identified her attitude, her attendance and her performance as targeted areas for improvement. The plan required her to communicate more frequently about her schedule, become more aware of her tone and plan her daily schedule more efficiently. Her supervisors told Cole that she would be fired if she did not sign the plan. Cole refused to sign the plan -- Cole was fired. Cole brought suit against the State and her supervisors alleging retaliation for exercising her FMLA rights. The district court granted summary judgment to the defendants. Cole appeals.