7th Circuit: Untimely Claim Finds New Life as Evidence in Later Discrimination Lawsuit

By Chris Arbery and Marcia Alembik Apr 7, 2008

The 7th U.S. Circuit Court of Appealsdetermined that a previous job action, while outside the limitations period, was evidence of pretext for sex discrimination.

From May 2001 until her resignation in October 2005, Barbara Fischer was an employee at Avanade Inc. Over the course of her employment, Fischer was passed over for a promotion to a director position on more than one occasion.

In October 2003, Fischer and Joe Sieverding, a male employee, applied for a director position. Both employees satisfied the minimum requirements to fill the position, which included a university degree and at least 10 years of customer service experience. However, Avanade’s general manager decided not to promote either employee and, instead, to have Fischer and Sieverding share the position’s responsibilities.

The director position reopened in May 2004, and once again Fischer and another male employee, Robert Lewis, expressed interest in the position. Although Lewis’ qualifications would not have met the minimum requirements for the position the first time it was open in October 2003, he nonetheless was promoted to the position. Concurrently, a similar position of “acting director” in another region became open. Without giving Fischer the opportunity to apply for this position, the general manager offered the position to Sieverding. Finally, in October 2005, Sieverding was promoted to “permanent director,” without even applying for the job.

In 2005, Fischer filed suit against Avanade in district court under Title VII of the Civil Rights Act, alleging sex discrimination based on failure to promote.

The district court held, and the appeals court later agreed, that Title VII’s 300-day limitation period for filing a charge with the Equal Employment Opportunity Commission barred Fischer from holding Avanade liable for any discrete discriminatory acts occurring before Sept. 24, 2004. Thus, any claims based on Avanade’s failure to promote her in 2003 and 2004 were untimely.

However, the district court and subsequently the 7th Circuit also held that such time-barred incidents could be considered as evidence in support of Fischer’s timely claim regarding the October 2005 occurrence.

Fischer established a prima facie case of sex discrimination, which shifted the burden to Avanade to state a legitimate, nondiscriminatory reason for the decision not to promote Fischer. Avanade asserted that Sieverding was more qualified for the permanent director position because he already served as acting director and had performed well and enthusiastically in that role.

But the 7th Circuit concluded that the previous promotion decisions were sufficiently intertwined with the promotion at issue and raised a question of fact as to whether Avanade’s reason for failing to promote Fischer was pretextual.

Fischer v. Avanade Inc., 7th Cir., No. 07-1800 (March 14, 2008).

Professional Pointer: This case demonstrates that a statute of limitations does not necessarily erase the risk associated with employment decisions. It also demonstrates that any significant decision should be well-documented with regard to all legitimate, nondiscriminatory reasons. Courts and juries expect employers to have clear and concrete reasons in writing to justify employment decisions.

Chris Arbery and Marcia Alembik are attorneys on the Labor & Employment Team at Hunton & Williams LLP.


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