Complaint Does Not Amount To Protected Activity Without A Reasonable Belief That Conduct Violated The Law
O'LEARY v. ACCRETIVE HEALTH, INC. (September 21, 2011)
Accretive Health is a Chicago-based firm that provides consulting services to hospitals. It hired Joseph O'Leary in early 2005. Although the firm was initially satisfied with O'Leary's performance, it started having reservations in mid-to-late 2006. It even replaced him at one of the hospitals for which he was responsible at the request of the hospital's CFO. In late 2006, O'Leary learned that one of his female reports had made sexually charged remarks at a company dinner. O'Leary reported the incident to his superiors. At the same time, O’Leary expressed his belief that the same female was treating an African-American subordinate in a harsh manner. A company investigation into the sexual remarks concluded that the employee exercised poor judgment but did not violate any company policy. She was reprimanded. In December of 2006, Accretive terminated O'Leary’s employment. O'Leary brought suit under Title VII and § 1981, alleging that his termination was in retaliation for his actions opposing sexual and racial discrimination. Judge Conlon (N.D. Ill.) granted summary judgment to Accretive. O'Leary appeals.
In their opinion, Seventh Circuit Judges Cudahy and Rovner and District Judge Adelman affirmed. Both Title VII and § 1981 prohibit retaliation against those who oppose the discriminatory practices made illegal by those statutes. The Court first addressed whether O'Leary established that he engaged in protected activity -- that is, that he took some action in opposition to prohibited discrimination. The Court concluded that he did not with respect to the sexual remarks. Given the relatively tame nature of those remarks and the facts that there was only one incident and that no one present felt harassed, O'Leary could not have reasonably believed that they constituted prohibited sexual harassment. The Court concluded that O'Leary did establish that he engaged in protected activity with respect to the employee’s treatment of her African American subordinate. Although the record is not very clear, the Court concluded that a fair reading supports that conclusion. O'Leary testified that he discussed his concern about race discrimination with his superiors, that his concern was based on more than one incident, and that the conduct resulted in the employee’s resignation. Satisfied that O'Leary met the protected activity requirement, the Court considered his claim under both the direct and indirect methods of proof. It easily rejected his claim under the direct method. O'Leary relied almost exclusively on the temporal proximity between his complaint and his discharge. But temporal proximity is rarely enough, by itself, and the timing in this case does not suggest retaliation. With respect to the indirect method, the Court concluded that O'Leary could neither show that he was meeting his employer’s expectations nor that Accretive's stated reasons for firing him were perpetual. Although there are issues of fact with respect to O'Leary's performance, the record contains sufficient undisputed facts to support the conclusion that he was discharged because of his performance.
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Danielle Pickett was employed as a housekeeper at the 
Misty Roby was a cashier at a CWI retail store. For months, she experienced sexual-harassment by a store supervisor, Joe Schiavone. Notwithstanding the fairly frequent and offensive behavior, she did not report it. Only after another supervisor overheard a comment she made to a coworker and specifically asked her about it did she report the conduct. The store manager immediately reported it to Human Resources, which conducted an investigation. The company reorganized the store schedule so as to minimize the times Roby and Schiavone worked together. As a result of the investigation, Schiavone received a written warning. Roby was informed of the results of the investigation. Several weeks later, when Roby complained about having to close the store with Schiavone, she was allowed to go home and stay home until the store manager returned from vacation. Although the company told her that they could not accommodate her desire to never be scheduled at the same time as Schiavone, they kept her on the schedule and expected her to come to work. She simply never returned. Instead, she brought an action under Title VII alleging the sexual harassment and also alleging that she was retaliated against for her complaints. The district court granted summary judgment to CWI. Roby appeals.