Court Report

May 1, 2015
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Professor Lacks Grounds for FMLA Retaliation Claims

Carter v. Chicago State University, 7th Cir., Case No. 13-3367.

Suspicious timing and a statement by management that it had “no reason” for selecting one professor over another in making a promotion decision were not enough to support a claim for retaliation under the Family and Medical Leave Act (FMLA), according to the 7th U.S. Circuit Court of Appeals.

Tollie Carter was a tenured associate professor who began working at Chicago State University in 1986. Carter was appointed chair of the university’s accounting and finance department in January 1995 but was removed from the position in June 1996 and returned to an associate professor role due to his “overall ineffective leadership.”

Carter was still in an associate professor role in January 2008, when he went out on FMLA leave to care for his mother. Upon returning to work in late March 2008, Carter was assigned nonteaching duties for the remainder of the semester.

The university had covered Carter’s three-month absence by hiring a part-time professor to teach one of his classes and assigning other professors in the department to teach the others.

One month after returning to work, in April 2008, Carter applied for an appointment to be chairman of the accounting and finance department but was passed over in favor of a peer who held a doctoral degree and whom the university deemed more qualified.

Seven months later, in November 2008, when the department chair position again became vacant and was to be filled by an “acting” chair, Carter was again passed over.

In January 2010, Carter filed suit against the university alleging that it retaliated against him for having taken FMLA leave by twice failing to appoint him to the department chair position. A jury found against Carter on the April 2008 department chair promotion claim, and the district court judge entered summary judgment against him on the November 2008 acting chair claim.

Carter appealed the summary judgment order on the November 2008 acting chair claim but did not appeal the jury award on the April 2008 chair promotion claim.

Professional Pointer

Tread carefully when implementing employment actions with negative consequences close to the time of a worker’s protected leave. As always, carefully document all performance issues.

In evaluating Carter’s FMLA claim, the 7th Circuit applied the traditional framework for analyzing a retaliation claim: a showing that 1) the employee engaged in protected activity under the FMLA statute—in Carter’s case, taking FMLA leave to care for his mother; 2) the employee suffered an adverse employment action—i.e., Carter was denied a promotion; and 3) there exists a causal connection between the first two points.

The appellate court was unconvinced by Carter’s argument that a period of seven months between the end of his FMLA leave and the university’s denial of the acting chair appointment was sufficiently close to raise a suspicion of discriminatory intent.

The court noted that it has repeatedly held that “temporal proximity between an employee’s protected activity and an adverse employment action is rarely sufficient to show that the former caused the latter.”

Carter also tried to attack the university’s decision-making in determining the acting chair appointment, citing a statement by the dean that he had “no reason” for appointing the successful candidate to the position other than he “had to appoint one person” as evidence that the university’s reasons for not selecting Carter were pretextual.

The 7th Circuit noted that the dean’s statements were “admittedly terse,” but it found that Carter presented no evidence that the dean’s explanation lacked credence.

The appeals court also concluded that Carter failed to make a prima facie case of discrimination because he failed to present evidence establishing that the university granted the promotion to someone who was not better qualified than Carter.

He alleged that the person appointed had a J.D., not a Ph.D., and that a J.D. typically would not satisfy the department’s tenure requirements.

But Carter conceded that the person selected was granted tenure and Carter did not identify any criteria used by the university for determining acting chair appointments.

By Tracey L. Truesdale, an attorney in the Chicago office of Ogletree Deakins.

Color Bias Claim Survives Absent Race Discrimination

Etienne v. Spanish Lake Truck & Casino Plaza LLC, 5th Cir., No. 14-30026.

Statements by a general manager that a former employee was “too black to do various tasks” and that a “dark skin” black person was not allowed to handle money constituted direct evidence of discrimination, according to the 5th U.S. Circuit Court of Appeals.

Esma Etienne, a black woman, sued her former employer, Spanish Lake Truck & Casino Plaza LLC, for violations of Title VII of the Civil Rights Act of 1964. Specifically, Etienne, who worked as a waitress and bartender, alleged that Spanish Lake’s general manager, Bernard Terradot, failed to promote her to a managerial position, despite the fact that she was qualified, because of her race and color.

Professional Pointer

While claims of race and color discrimination are frequently joined together, it is important to remember that a claim for color discrimination can stand on its own.

Etienne submitted an affidavit by Jeannene Johnson, a former manager at Spanish Lake, in support of her allegations. In the affidavit, Johnson indicated that Terradot determined each employee’s responsibilities based on the employee’s skin color. Johnson further indicated that Terradot, on numerous occasions, said Etienne was “too black” to perform certain tasks.

The district court granted summary judgment in favor of Spanish Lake. The 5th Circuit vacated the district court’s decision and remanded the case. According to the 5th Circuit, the district court, relying heavily on the fact that most of the managers in the casino were black, focused its analysis of Etienne’s discrimination claim on race rather than color. The 5th Circuit noted that while the court had never explicitly recognized “color” as a separate, unlawful basis for discrimination, Title VII prohibits discrimination against an individual because of the individual’s “race, color, religion, sex, or national origin.”

By Kathiana Aurelien, an attorney with Swerdlow Florence Sanchez Swerdlow & Wimmer, the Worklaw® Network member firm in Beverly Hills, Calif.

Holding Company Not Joint Employer of Defunct Entity

Shiflett v. Scores Holding Company Inc., 2nd Cir., No. 14-1594-cv.

A holding company that owned a nightclub but did not manage the club’s personnel matters or make decisions concerning employee hiring, firing, discipline or compensation could not be held liable for alleged discrimination and retaliation by the nightclub, the 2nd U.S. Circuit Court of Appeals ruled.

Elizabeth Shiflett worked as a cocktail waitress at Scores West in New York City beginning in October 2007. She claimed that she was harassed by her manager based on her race and sex and that, when she complained about it, she was terminated in retaliation in March 2008. Scores West was owned by Go West Entertainment Inc., which was dissolved in July 2010 after bankruptcy proceedings. Go West was related to Scores Holding Company Inc., which remains in operation.

Professional Pointer

If joint owners of a company fail to keep their human resource functions separate, they can share responsibility for employment law claims brought against any one owner.

In June 2013, almost three years after Go West was dissolved, Shiflett brought a lawsuit against Scores Holding under Title VII of the Civil Rights Act of 1964. She claimed that Scores Holding should be liable as a joint employer. Scores Holding argued that it was not a joint employer because, despite its common ownership, it did not have control over personnel matters at Scores West. The trial court agreed with Scores Holding and dismissed the case against it, and Shiflett appealed.

On appeal, the 2nd Circuit described the standard for holding a company liable as a joint employer. According to the court, the companies must have common ownership—which was applicable here—but they also must have common management, interrelated operations or centralized control of labor relations.

The 2nd Circuit noted that a company representative testified that he exercised no control over management or personnel decisions at Scores West. Without such involvement, the 2nd Circuit determined that Shiflett could not hold Scores Holding responsible as a joint employer.

By Jeffrey L. Rhodes, managing partner of the civil division of Albo & Oblon LLP in Arlington, Va.

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