Wednesday, November 16, 2016

7th Cir. Allows EMTs' Retaliation Claims to Move Forward Under Failure-to-Hire Despite Never Having Applied for New Positions

The facts of this case are initially confusing, but essentially, the plaintiffs, Shannon Volling and Allen Springer, worked at EMTs for a company called Metro and its contractor, a former defendant in the case, ARS.

In April 2011, Volling filed charges against ARS and Metro with the EEOC, alleging sexual harassment, discrimination and retaliation.   In July 2011, Volling filed a complaint in the Northern District of Illinois against ARS and Metro, alleging sex discrimination and misconduct in violation of the Emergency Medical Services Act.  In late 2011, Springer filed a supporting declaration in Volling's lawsuit against ARS and Metro.  Rolling also aided the Illinois Department of Public Health's investigation into ARS.  Like Volling, Springer also voiced his concerns at both ARS and Village of Antioch meetings.  Both plaintiffs alleged that ARS began acting against them immediately after they filed the lawsuit and declaration.

The retaliation at issue on appeal before the 7th Circuit stated on June 15, 2012.  ARS terminated its subcontract with Metro and all eight daytime, weekday Metro EMTs.  ARS replaced Metro with defendant Kurtz.  The next day, Kurtz began exclusively hiring former Metro EMTs.  Kurtz did not publicize its EMT vacancies or inform plaintiffs about them.  ARS instructed every former Metro EMT--except plaintiffs--on how to apply for employment under the new Kurtz contract.  Kurtz then asked ARS for the former Metro EMT's contact information to schedule interviews.  Neither plaintiff received application instructions, applied, or interviewed for a Kurtz EMT position.  Within one day, ARS and Kurtz allegedly "jointly" rehired every other Metro EMT except the plaintiffs.

Plaintiffs' Retaliation Claim

In June 2014, the plaintiffs filed suit against ARS and Kurtz, bringing state and federal retaliation claims.  The plaintiffs settled with ARS and Kurtz filed a motion to dismiss the plaintiffs' complaint.  In March 2015, the district court granted Kurtz's motion to dismiss, holding that the plaintiffs had failed to exhaust administrative remedies as required under Title VII and that regardless, plaintiffs failed to adequately state a claim for relief, as they did not apply for employment with Kurtz.

The plaintiffs filed an amended complaint and the district court again dismissed the complaint, with prejudice, finding that the plaintiffs failed to establish an adverse employment action under Title VII and the accompanying state law because they did not formally apply for employment with defendant Kurtz.

Retaliation Under Title VII

Title VII prohibits discriminating against an employee "because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing..."  To prevail under a Title VII retaliation claim, a plaintiff must "present evidence of (1) a statutorily protected activity; (2) a materially adverse action taken by the employer; and (3) a causal connection between the two."

In this case, the court held that is was undisputed that the plaintiffs engaged in protected activity and that what was disputed were the last two elements.

Materially Adverse Employment Action

The plaintiffs alleged that Kurtz refused to hire them in retaliation for their engaging in protected activity against ARS and Metro.  In the "failure to hire" context, a plaintiff satisfies the materially adverse employment action by showing she "(1)...engaged in a statutorily protected activity; (2) ...applied and had the technical qualifications required for the...position; (3)...was not hired for the position; and (4) a similarly situated individual who did not [engage in statutorily protected activity] was hired for the position."  The court held that it is undisputed that the plaintiffs satisfied these elements but the question remained whether their failure to apply for the position with Kurtz, because they were not informed about the position, is fatal to their retaliation claim.  For obvious reasons, the court held that this was not fatal and that the plaintiffs pled an adverse employment action against Kurtz deposit not applying for the EMT positions.

The court noted that McDonnell Douglas is not inflexible and recognized that the facts will vary in Title VII cases.  In cases such as this, the court held, the employer's "manner" of publication may involve the discriminatory absence of publication.  "Thus, plaintiffs' failure to apply stemmed from the very discriminatory practice they complain of, and their failure to apply need not bar their retaliation claims."  Kurtz had EMT openings and relied exclusively on ARS for referrals.  The two companies allegedly "jointly" refused to inform plaintiffs of the new EMT positions, while informing all other former Metro EMTs who had not engaged in protected activity.  No application is necessary in such circumstances, the court held.

Causal Connection

The lower district court also concluded that the plaintiffs failed to allege a causal connection between Kurtz's adverse employment action and their protected activity.   The Court held that an application is unnecessary when a plaintiff can show she would have applied had it not been for the complained-of-discriminatory practices.  In this case, plaintiffs contend Kurtz's alleged retaliatory discrimination--purposefully failing to inform plaintiffs of the new hiring process--caused plaintiffs' failure to apply.  Under the complaint, plaintiffs engaged in protected activity, and Kurtz was allegedly aware of this activity as ARS and Kurtz jointly retaliated against plaintiffs for this activity by intentionally excluding them from the EMT application process.

The 7th Circuit reversed and remanded the plaintiffs' retaliation claim to the district court but upheld dismissal of the Illinois Whistleblower Act claim.

The case is Shannon Volling and Allen Springer v. Kurtz Paramedic Services, Inc., No. 15-3572 (7th Cir., October 19, 2016).

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