After the Supreme Court decided that oral complaints provide protection from retaliation under the FLSA, as discussed in this earlier post, the case continues to make good law for employees. On remand, the Western District of Wisconsin granted summary judgment to the employer on the employees claim for retaliation only to be reversed later by the Seventh Circuit.
The Seventh Circuit explained that to “establish a prima facie case of retaliation under the direct method, an employee must show: (1) that he engaged in protected expression; (2) that he suffered an adverse employment action; and (3) that a causal link existed between the protected expression and the adverse action.” Circumstantial evidence can be used to establish the causal link which allows a jury to infer retaliation where: (1) there is evidence of suspicious timing, ambiguous statements or behaviors; (2) evidence that similarly situated employees were treated differently; or (3) a pretextual reason for adverse employment action.
As with many retaliation complaints, there was suspicious timing – the employee asked a supervisor if she had seen information about a class action against the employer. This statement was then relayed by email to human resources two days later and the employee was terminated. The employee also introduced evidence that another employee had been treated more favorably. Finally, there was evidence before the Court that employer had changed the initial reasoning for the termination from a violation of one policy to the violation of another policy.
Importantly, despite the employer denying doing anything wrong and presenting arguments, backed by their own evidence, to rebut the arguments made by the plaintiff, the case must go to a jury. Too often, discrimination cases are decided on summary judgment despite there being disputed facts as to what happened. At times, it seems that the summary judgment standard is not properly applied – that all facts are viewed in the light most favorable to the non-moving party, drawing all reasonable inferences in their favor, and that in doing so, summary judgment is improper when a reasonable jury could return a verdict for the non-moving party. In this case, the Seventh Circuit properly required the disputed facts be placed before a jury to decide what version of the story is true.
The Court’s opinion can be found here - http://www.ca7.uscourts.gov/tmp/OE0M17QI.pdf
