Seventh Circuit Holds Title VII Retaliation Plaintiffs To A High Bar, Requiring Retaliation To Be “The” But-For Cause Rather Than “A” But-For Cause

The Seventh Circuit recently reaffirmed the standard required to hold an employer liable for retaliation under Title VII. In Mollet v. City of Greenfield, the court held that “Title VII claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.”[1] This ruling establishes the requirement for an employee to bring a successful retaliation claim and helps protect an employer if it can demonstrate it terminated the employee for a lawful reason.

In August 2016, James Mollet filed a Title VII claim against the City of Greenfield, Wisconsin. Mollet’s complaint alleged that he was constructively discharged from the city’s fire department as retaliation for reporting a racist incident in the firehouse. The incident occurred in February 2012, and Mollet’s report led to the fire department management disciplining four individuals. However, in the year following the incident, Mollet’s superiors became increasingly critical of his performance. Facing demotion or reassignment, Mollet resigned and found new employment in March 2013.

Title VII of the Civil Rights Act of 1964 prevents retaliation against employees for complaining about discrimination in the workplace.[2] A successful claim under Title VII requires an employee to show: “(1) he engaged in a statutorily protected activity, (2) his employer took a materially adverse action against him, and (3) there is a causal link between the protected activity and the adverse action.”[3]

The district court granted summary judgment for the town, and the Court of Appeals for the Seventh Circuit affirmed the decision. The Seventh Circuit’s opinion focused only on the third element of the Title VII analysis: the causal link.[4]  Citing both U.S. Supreme Court and Seventh Circuit precedent, the court stated that a Title VII plaintiff must prove that “the adverse action would not have happened without the activity.[5]  Thus, courts look to see if the protected activity was the but-for cause of the employment action, rather than just a but-for cause.[6]  In other words, if Mollet would have been fired even without filing the complaint, the City of Greenfield is not liable for retaliation.[7]

The available record shows the complaint may have been a cause of Mollet’s constructive discharge, but it was not the cause. Mollet’s stated in his deposition that fire department management was monitoring and criticizing his performance before the racial incident occurred. The evidence also showed that management responded positively to Mollet’s complaint and that their later criticisms related only to improving job performance, not retaliation. Finally, the court notes that “a plaintiff’s subjective beliefs are insufficient to create a genuine issue of material fact,”[8] and that speculation or suspicious timing alone is rarely enough to establish a retaliatory motive.[9]  Because Mollet’s retaliation claim lacks the causation factor required by Title VII, the city is not liable.

Even though employees face a high burden when bringing retaliation claims, the risk of liability for employers can be enormous. If found liable, an employer may be forced to pay damages, which can climb to hundreds of thousands of dollars.[10] Employers can reduce this risk by documenting performance or disciplinary problems when they occur. Without this documentation, employers may have a more difficult task proving an employee was terminated for a lawful reason, rather than retaliation.

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[1] Mollet v. City of Greenfield, No. 18-3685 (7th Cir. 2019) (quoting Univ. of TX. SW Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013)).
[2] 42 U.S.C. § 2000e-3(a).
[3] See Robinson v. Perales, 894 F.3d 818, 830 (7th Cir. 2018).
[4] The court noted its agreement with the district court’s finding that Mollet satisfied the first two elements of the analysis: engaging in statutorily protected activity and the employer’s materially adverse action.
[5] See Univ. of TX. SW Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013); Carlson v. CSX Transportation, Inc., 758 F.3d 819, 828 n.1 (7th Cir. 2014).
[6] See Heath v. Indianapolis Fire Dep’t, 889 F.3d 872, 874 (7th Cir. 2018).
[7] Id.
[8] Boss v. Castro, 816 F.3d 910, 917 (7th Cir. 2016).
[9] See Gracia v. SigmaTron International, Inc., 842 F.3d 1010, 1021 (7th Cir. 2016).
[10] Remedies for Employment Discrimination, EEOC, https://www.eeoc.gov/employers/remedies.cfm (last visited June 19, 2019).

 

Erin Borissov is a partner in the law firm of Parr Richey Frandsen Patterson Kruse with offices in Indianapolis and Lebanon, Indiana. She advises utilities and business clients in the areas of utility regulatory law, electric cooperative law, easement and right-of-way law, commercial transactions, corporate governance, and corporate compliance.

The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.