The United States Court of Appeals for the Seventh Circuit, whose jurisdiction includes Wisconsin, recently issued a decision in a case involving an employee’s claims of retaliation by her public employer under Title VII. Robertson v. Dep’t of Health Servs., 949 F.3d 371 (7th Cir. 2020). The employee claimed that she was denied a promotion despite being the most qualified candidate. The employee also alleged that her employer continued to retaliate against her through the actions of the candidate who was hired for the position. The Court found in favor of the employer as to both claims.
Specifically, the Court held that the employee failed to show that her employer’s explanation for not promoting her was a pretext for retaliation. In addition, with regard to her claim for continuing retaliation by the individual who was hired for the position, the Court held that the employee failed to show that she experienced a “materially adverse action.”
The Court’s decision offers helpful insight for employers faced with a similar situation.
The employee, Vanessa Robertson, was hired by the State of Wisconsin Department of Health Services (“DHS”) as a Deputy Director of Milwaukee Enrollment Services in 2009. In 2014, an employee informed Robertson of a comment made to the employee by the Bureau Director; both then reported the comment to the human resources department. After an investigation, the Bureau Director resigned in lieu of termination. At that time, Robertson was appointed to the position of Acting Director.
DHS subsequently recruited to fill the Director position and interviewed three (3) potential candidates, including Robertson, another DHS employee, and a third candidate. Robertson and the other DHS employee were asked how they would “move the agency forward” after the resignation. DHS ultimately selected the third candidate, who was not a DHS employee.
After the new employee assumed the Director position, Robertson alleged that the new Director insulted and undermined her. For instance, Robertson alleged that the new Director made a reference to the prior director “being forced to resign” and stated that it would not happen to her. Robertson took that as a comment directed at her given that Robertson had been part of the complaint that resulted in the prior Director’s resignation. She also alleged that the new Director removed one of her job duties and treated her worse than others who were not involved in the investigation of the prior Director.
Robertson asserted claims under Title VII of the Civil Rights Act of 1964 (Title VII). Under Title VII, it is unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Title VII also prohibits retaliation against an individual because he or she opposed discrimination in the workplace.
The Court explained that “[t]o succeed on a Title VII retaliation claim, a plaintiff must produce enough evidence for a reasonable jury to conclude that (1) she engaged in a statutorily protected activity; (2) the [employer] took a materially adverse action against her; and (3) there existed a but-for causal connection between the two.” If the plaintiff makes this showing, the burden shifts to the employer to “produce evidence which, if taken as true, would permit the conclusion that it had a legitimate non-discriminatory reason for taking the adverse employment action.” After that, the plaintiff “must produce evidence that would permit a trier of fact to establish, by a preponderance of the evidence, that the legitimate reasons offered by the employer were not its true reasons but were a pretext for discrimination.”
Robertson alleged that DHS retaliated against her by not promoting her to the Director position because she had reported discrimination by the previous Director, who resigned. Robertson also alleged that DHS retaliated against her through the actions of the new Director, because the new Director knew of Robertson having previously reported discrimination.
With regard to the first claim, the Court held that Robertson failed to submit evidence showing that her report of discrimination related to the previous Director had caused the subsequent rejection of her application for the Director position. Because there was no direct evidence that these events were connected, Robertson relied on circumstantial evidence that she was “objectively the most qualified candidate.” She asserted that the chosen candidate did not have any experience in the area of income maintenance, had not worked for the State, and did not have experience with managing a large organization. Further, she asserted that the former Director had a close relationship with the decisionmakers, and that the selection committee may have viewed her as less cooperative with management located in Madison because of the previous investigation.
DHS presented evidence that the new Director was the “better overall candidate.” Specifically, although both candidates had strong qualifications, the chosen candidate had superior educational qualifications, and the committee ultimately determined that Robertson would be better at running the day-to-day operations rather than focusing on leadership and strategic vision. The Court explained that an employee’s “own opinions about [her] … qualifications [do not] give rise to a material factual dispute.” It further stated, “unless [the competing qualifications] are so favorable to the plaintiff that there can be no dispute among reasonable persons of impartial judgment that the plaintiff was clearly better qualified for the position at issue, the plaintiff’s qualifications alone do not establish evidence of pretext.” Therefore, Robertson failed to show that DHS’ reason was a pretext for retaliation.
With regard to Robertson’s claim of continuing retaliation by the new Director, the Court held that Robertson failed to show that the new Director’s actions amounted to a “materially adverse action.” Specifically, Robertson was required to show that the new Director’s actions “would have been materially adverse to a reasonable employee, such that a reasonable employee would have been deterred from making or supporting an investigation of discrimination.” The Court explained that “snubbing by supervisors and co-workers is not actionable” nor are “[u]nfair reprimands or negative performance reviews [that are] unaccompanied by tangible job consequences.” Further, the Court explained that “[a] reassignment of job duties is not ‘materially adverse’ unless it is a ‘significant’ change that is ‘often reflected by a corresponding change in work hours, compensation, or career prospects.’” Because Robertson did not present evidence of any materially adverse action, the Court found in favor of DHS as to Robertson’s second claim.
This case reminds us that if decisionmakers are able to articulate lawful reasons for a hiring decision (or other differentiation), an employee’s own assessment of his or her qualifications is not enough to defeat the employer’s analysis of qualifications. The competing qualifications must objectively show that the employee was clearly better qualified. This case also reminds employers that an employee’s receipt of a less than warm reception by a supervisor is not unlawful unless there is some materially adverse employment consequence. Nonetheless, employers are wise to address such behavior by supervisors when identified so as to avoid a situation where materially adverse circumstances do arise.
For questions regarding this article, please contact the author,
or your Renning, Lewis & Lacy attorney.