Consistently Poor Evaluations Result in Dismissal of Race, Retaliation Claims
The Seventh U.S. Circuit Court of Appeals (which covers Wisconsin) recently up-held the dismissal of an employee’s lawsuit under Title VII of the Civil Rights Act of 1964. The employee alleged that his employer failed to promote him to a higher payroll level and retaliated against him for filing a discrimination complaint. The Seventh Circuit found that many of his allegations were time-barred and that the remaining claims didn’t warrant a jury trial. Let’s take a closer look at the case.
Jerry Brown, who is African-American, works for the Illinois Waste Management and Research Center (WMRC), one of four subsections within the Illinois Department of Natural Resources (DNR). The WMRC initially hired him in November 1994 as a manufacturer process engineer at the assistant-professional-scientist payroll level. The center is governed by an eight-member Board of Natural Resources and Conservation, which is chaired by the DNR’s director.
The board’s policy for promotions to higher payroll levels states that advancement will be based on “performance from visible and demonstrable evidence that the individual has attained, and/or has the potential to attain, competence and qualifications to function at the promotion level.” The board allows each subsection, including the WMRC, to determine its guidelines for evaluations and promotions.
Before 2002, the WMRC’s policy manual provided that to be eligible for a promotion, an employee must successfully complete a probationary review period and receive above-average performance evaluations during that time. Beginning in 2002, the center changed its manual to state that the employee should attain above-average evaluations “preferably for two to three consecutive years” and meet the education, years-of-experience, and time-in-grade requirements of the center’s promotion track system. The manual also provides that three things must occur before a promotion can occur: there must be an available position, a supervisor must recommend the promotion, and the promotion must be approved by the WMRC’s director, the DNR’s director, and the board.
Mixed Reviews. Brown’s tenure with the WMRC featured mixed performance reviews and criticism of the way he interacted with coworkers and clients. Malcolm Boyle, his supervisor from May 1995 until April 2000, prepared his evaluations during that period, which showed the following:
- May 1995: Brown’s performance was good overall, but he needed to organize his work more efficiently, keep his supervisor more informed about his projects, and ask for help when needed
- April 1997: Brown was “somewhat argumentative” and needed to work on being punctual and organizing his workload
- April 1998: He was described as “defensive” and “insensitive and abrasive when dealing with other WMRC staff.” Also, he was continuing to have problems arriving at work on time and meeting deadlines, although his tardiness had improved. (In September 1998, he became eligible for a promotion to the associate-professional-scientist payroll level. Boyle didn’t recommend him for the promotion, however, because of his poor work performance)
- April 1999: Brown still had conflicts with coworkers, clients, and partners. He also had difficulty with his communication skills and required more supervision than his position warranted
Clients who worked with Brown also complained about his work performance. In July 1999, for example, the WMRC received an e-mail from a client who expressed frustration over Brown’s refusal to provide project updates and asked the center to refrain from assigning Brown to future projects for that client. Despite Brown’s eligibility, Boyle didn’t recommend him for promotion in 1999, again based on his continued performance deficiencies.
More Negative Feedback. Brown’s April 2000 evaluation, which Boyle conducted, contained more comments about poor communication skills and argumentative behavior. Three months later, another client informed the WMRC that Brown wasn’t welcome at his plant because Brown argued with him when he questioned Brown’s technical credibility.
Boyle again didn’t recommend Brown for a promotion in 2000 because he believed that the performance issues hadn’t improved. Effective September 2000, the WMRC placed Brown on probation for receiving an “I” grade on his last evaluation, indicating that his performance needed significant improvement. At the same time, the center placed two other employees on probation, both of whom are white males. In March 2001, Brown passed his probationary period while one of the white employees was ultimately discharged for poor work performance.
EEOC Charges. On October 24, 2000, Brown filed race discrimination and retaliation charges with the Equal Employment Opportunity Commission (EEOC). Three months later, he added an allegation that the WMRC denied him a salary increase because of his probationary status.
In April 2001, Timothy Lindsey began completing Brown’s performance evaluations. The first evaluation noted that Brown’s communication skills were getting better but still needed improvement, along with his punctuality and need for excessive supervision. It also stated that he needed to work on his attitude toward supervision and that “he questions assignments excessively and is argumentative when receiving direction.”
Two months later, the WMRC received another complaint letter from another client who indicated that Brown had taken an adversarial tone with him and that he was unhappy with the manner in which Brown handled the project in terms of both performance and professional conduct. Two other clients also complained about his work around that time. The center also received five compliments from customers about Brown between 1997 and 2002.
Lawsuit and More Charges. Brown sued the WMRC, the DNR, and the state of Illinois as well as Boyle and Lindsey individually, alleging race discrimination and retaliation. While the lawsuit was pending, Ramona Ronda performed his April 2002 evaluation. She stated that he had begun arriving at work on time and that his communication skills were improving, but he needed “to improve upon communication with his supervisor when tasks falls [sic] behind schedule.” As a result, he filed another race discrimination and retaliation charge with the EEOC based on the center’s September 2001 decision to promote Ronda (who is white) to operations manager instead of him. He later amended his lawsuit to include those allegations, too.
Brown’s employer and supervisors asked the trial court to dismiss his lawsuit without a trial. The court granted the request, finding that:
- Brown’s discrimination case failed because he didn’t identify a similarly situated individual of a different race whom the WMRC treated more favorably;
- There was no evidence that the WMRC’s failure to promote him was a pretext for race discrimination because the center’s consistent explanation for its decisions was supported by both the performance evaluations and the clients’ complaints; and
- His retaliation claim failed in the absence of any direct evidence of discrimination, and a general proximity in time between his filing of the discrimination complaint and the WMRC’s decision not to recommend him for promotion wasn’t enough to necessitate a jury trial
Brown appealed the case to the Seventh Circuit.
Seventh Circuit’s Decision
Statute of Limitations. The Seventh Circuit looked to a recent U.S. Supreme Court case, Ledbetter v. Goodyear Tire & Rubber Co., which was decided after the trial court granted the employer’s request to dismiss Brown’s case. In the Ledbetter case, the Court held that each “discrete act” of discrimination – such as a “failure to Ledbetter case, the Court held that each “discrete act” of discrimination – such as a “failure to promote” – constitutes a separate, unlawful, legally pursuable employment practice that requires the employee to file a timely EEOC charge. The Court rejected the so-called serial or serious-violation approach, stating that if an employer engaged in a series of acts, each of which is intentional discrimination, then a fresh violation takes place when each act is committed.
Under the Ledbetter decision, the Seventh Circuit held that Brown was time-barred from filing suit under Title VII for any discrete acts that occurred more than 300 days before the filing of his EEOC charge. Because he failed to present any evidence that the WMRC’s decisions not to promote him in 1998 and 1999 occurred within 300 days of the filing of his EEOC charge, the court of appeals found that the claims based on those discrete acts were barred.
The Seventh Circuit found that two of Brown’s alleged claims of race discrimination weren’t barred because the discrete acts occurred within 300 days of the date he filed his EEOC charge:
- The WMRC’s decision not to recommend him for promotion to the associate-professional-scientist payroll level in late 2000 after the center placed him on probation; and
- The center’s 2001 decision to promote Ronda rather than Brown to operations manager
Since Brown failed to submit any direct evidence of race discrimination, the court proceeded under the McDonnell Douglas burden-shifting method of proof. He had to establish a prima facie (initial) case of discrimination by showing that:
- He is a member of a protected group
- He was qualified for the position being sought
- He was rejected for it
- The promoted employee was a member of a different race and not better qualified
The Seventh Circuit held that Brown didn’t carry his burden of proof because none of the four white WMRC employees he identified was in fact similarly situated to him. In each case, the court distinguished the employee’s record from Brown’s job performance. They didn’t have negative performance evaluations or receive client complaints about work performance. And they were never placed on probation for unsatisfactory work. As a result, the court dismissed Brown’s discrimination complaints.
Even if Brown had established a prima facie case, the Seventh Circuit concluded that the lawsuit should be dismissed because the employer presented a compelling, nondiscriminatory explanation for the WMRC’s decision not to promote him: his unsatisfactory performance evaluations and the client complaints. The court found that he didn’t provide any evidence to show that the nondiscriminatory reasons were pretextual. Furthermore, his own opinions about his work performance and qualifications didn’t cast enough doubt on the legitimacy of his employer’s proffered reasons for its employment actions.
Retaliation. Brown alleged that the WMRC retaliated against him for complaining about its alleged unlawful discriminatory actions by placing him on probation, issuing negative job reviews, and continuing to deny him a promotion. To prove retaliation, he had to show that:
- He engaged in protected activities
- He suffered an adverse employment action
- There was a causal connection between the two
The court dismissed the claim because he didn’t offer any evidence supporting a causal connection between his February 2000 filing of an EEOC charge and his subsequent, increasingly negative performance reviews, which resulted in his being placed on probation and denied a promotion.
The Seventh Circuit held that the timing between the filing of the EEOC charge and the subsequent employment actions alone wasn’t enough to support Brown’s retaliation claim. The negative reviews that occurred after he filed the charge contained complaints similar to those that predated it. Also, the multiple client complaints corroborated the performance evaluations both before and after he filed the charge.
Because Brown failed to offer any evidence of retaliation beyond the mere proximity in time between the discrimination complaint and his continued string of negative performance reviews and resulting term of probation and decision not to promote him, the court dismissed the retaliation claim. Jerry Brown v. Illinois Dept. of Natural Resources, Case No. 06-1552 (7th Cir., Aug. 27, 2007).
The Seventh Circuit’s decision makes clear that all discrete acts of alleged discrimination or retaliation occurring more than 300 days before an employee files a discrimination charge are time-barred. Further, to make a prima facie case of discrimination, an employee must point to truly similarly situated employees who were treated more favorably. For an employee who isn’t meeting his employer’s legitimate expectations as embodied in his performance reviews, employees who don’t receive negative reviews or whose performance isn’t under criticism aren’t similarly situated. Finally, the mere proximity in time between complaining about discrimination and an alleged act of further discrimination or retaliation isn’t in and of itself a basis to support a retaliation claim under Title VII. The employee must do more to prove a causal connection between the filing of the charge and the alleged adverse employment action.
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