Decision Underscores Importance of Contemporaneous Documentation

By Maria Greco Danaher January 24, 2023

Takeaway: The court's summary of its rationale points out two critical issues on which its decisions turned: 1) conflicting evidence and 2) favorable inferences. Understanding how to avoid these two pitfalls can be invaluable to employers—and both can be avoided with objective, contemporaneous and thorough documentation.

Avoid conflicting rationales for adverse employment actions. Whether either of the employer's rationales for its selection of the successful candidate was legally sufficient or factually supportable, the fact that there were two differing rationales allowed the 7th Circuit to determine that the employer's decision to overlook the plaintiff for the position could be viewed by a jury as pretext for discrimination or retaliation. Further, because there was no contemporaneous documentation of the reason(s) for the promotion decision, the employer was unable to fully and factually support either assertion.

Avoid creating situations in which "favorable inferences" can result. Without documentation, the court can make inferences that might benefit the opposing party. 

​The 7th U.S. Circuit Court of Appeals reversed and remanded a lower court's decision in favor of an employer on summary judgment. The case was a reverse discrimination matter in which a white employee asked to be considered for a promotion, but the position was given to a Black candidate ("the successful candidate") who had been working under the plaintiff's supervision.

Factual Background

When informed she had not been promoted, the plaintiff was alleged to have made several negative personal remarks about the successful candidate, acted unprofessionally and told the employer she was considering filing a charge of race discrimination. Immediately after filing an Equal Employment Opportunity Commission charge, the plaintiff was asked to sign a last-chance agreement that rescinded a recent pay increase and included language regarding any future infractions. The plaintiff signed the agreement, but then retired from her position two weeks later. She ultimately filed a lawsuit claiming racial discrimination and retaliation.

In that lawsuit, the plaintiff offered evidence that the decision-maker in the promotion specifically said he wanted to appoint a Black person to the position "for political and/or policy reasons." However, the employer later claimed the successful candidate was more qualified, more professional and better educated than the plaintiff. The employer also stated, as an additional reason, that the plaintiff's behavior when she learned she had not been awarded the promotion was unprofessional and precluded her promotion.

The employer filed a motion for summary judgment, arguing its actions were supported by legitimate business reasons and that there was no discrimination or retaliation. The lower court granted the motion on both counts. The plaintiff appealed that decision.

7th Circuit's Reversal

While not deciding the ultimate merits of the employee's claim, the 7th Circuit spelled out the reasoning for its reversal of the lower court's decision and remand in this way:

  • The [employer] chose to move for summary judgment but only on certain issues.
  • That choice required the court to give [the plaintiff] the benefit of conflicts in the evidence and favorable inferences.
  • When the court did so, it was clear the [employer's] reasoning for its actions must be decided by a jury, and not on summary judgment.

In other words, on appeal, the court found genuine issues of material fact and further found those conflicting facts—when resolved to the plaintiff's benefit—could allow a jury to find in the plaintiff's favor.

Here are the specifics when viewed in a light most favorable to the plaintiff:

  • The plaintiff, a white woman, expressed interest in a promotion to a position for which she was extremely familiar, having supported that same position for multiple years.
  • The employer instead promoted a Black female employee who was in a position subordinate to the plaintiff and who had worked for fewer years for the employer.
  • The decision-maker said he wanted a minority candidate in the position for policy/political reasons.
  • The employer then promised the plaintiff a substantial raise to stay in her current position.
  • The plaintiff became upset when she learned of the situation and made "negative or profane" statements about the successful candidate. The plaintiff was disciplined, and shortly thereafter retired and filed a lawsuit.
  • In its response to the plaintiff's lawsuit, the employer stated that the successful candidate was more qualified than the plaintiff and—based on the plaintiff's personal statements after the promotion—was more "professional" than the plaintiff.
  • There was evidence that the successful candidate's resume was not provided to the decision-maker until after the promotion was made.
  • Based on a commonsense timeline, the promotion could not have been based on the plaintiff's unprofessional reaction to it, because that reaction did not occur until after the decision was made.

Runkel v. City of Springfield, 7th Cir., No. 21-2418 (Oct. 18, 2022).

Maria Greco Danaher is an attorney with Ogletree Deakins in Pittsburgh.



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