Worker Denied Promotion Advances Retaliation Claim

​An employer's decision to not promote an employee to a full-time position after that employee filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), along with some corroborating evidence of potential retaliation, was enough to send the claim to trial, according to the 7th U.S. Circuit Court of Appeals.

Covance Central Laboratory Services Inc., a medical device manufacturer, employed the plaintiff in a temporary position as an assistant in its medical kit production department. The company regularly uses both regular and temporary employees, although the evidence showed that Covance has a practice of promoting temporary employees who receive positive reviews to full-time positions within four to nine months of their start date.

The plaintiff received positive performance reviews throughout his first nine months with Covance but was not converted to full-time status. By contrast, two of his temporary co-workers, who had been hired just weeks before the plaintiff, were promoted to full-time positions around the nine-month mark.

One difference between the promoted colleagues and the plaintiff was that the plaintiff had made an internal complaint against his supervisor at Covance, alleging that the supervisor treated female and white employees better than their male and black counterparts. After an internal investigation found the plaintiff's claims to be baseless, he filed a complaint with the EEOC. This happened just as the plaintiff reached his nine-month anniversary with the company.

The plaintiff never received a promotion to full-time status, Covance later implemented a hiring freeze in the department, and the plaintiff was let go after the term of his temporary employment ended. He sued Covance in federal district court on retaliation and other employment claims. Covance successfully moved for summary judgment, arguing that the plaintiff did not adequately plead a failure-to-promote claim.

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The 7th Circuit disagreed, holding that not only did the plaintiff adequately plead the claim, but he also submitted sufficient evidence in support of the claim for it to proceed to a jury.

Although suspicious timing of an adverse employment action is not in and of itself enough to withstand summary judgment, the plaintiff could point to his two similarly situated colleagues who did receive promotions as evidence of retaliation. The court also noted that Covance's nondiscriminatory explanation for its treatment of the plaintiff—the hiring freeze—happened months after he would otherwise have received the promotion, raising doubt as to whether Covance's defense was pretextual.

In sum, the court held that where suspicious timing is accompanied by some corroborating evidence, a jury should decide whether an adverse employment action is indeed retaliation for protected activity. Although Covance proffered a nondiscriminatory basis for its decision to not promote the plaintiff, if that explanation lacks credibility, it can be turned against the employer and instead be persuasive evidence that the true reason was unlawful.

Stepp v. Covance Cent. Lab. Servs., Inc., 7th Cir., No. 18-3292 (July 26, 2019).

Professional Pointer: Timing is crucial when taking adverse action against an employee who has engaged in a protected activity such as making a complaint of discrimination or other illegality. Employers should be aware of the timing of protected activities because the closer in time the protected activity and the adverse action are, the more suspicious it may appear to a court.

Meghan E. O'Kane is an attorney with Swerdlow Florence Sanchez Swerdlow & Wimmer, the Worklaw® Network member firm in Beverly Hills, Calif.