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Failure to Inform Can Provide Basis for Retaliation Charge

Under VII of the Civil Rights Act of 1964, an employer is prohibited from retaliating against an employee because the employee participated in an investigation or lawsuit for protected conduct, such as complaining of sexual harassment [1]. In Volling v. Kurtz Paramedic Services, Inc., the 7th Circuit of the U.S. Court of Appeals recently considered whether the trial court had properly dismissed a retaliation claim where employers did not expressly deny the Plaintiff employees a requested employment opportunity [2].

Plaintiffs Shannon Volling and Allen Springer worked as EMTs for Metro Paramedic Services, Inc. (“Metro”) and Defendant Antioch Rescue Squad (“ARS”), of which Kurtz Paramedic Services (“Kurtz”) is a subcontractor [3]. In 2011, Volling filed charges with the Equal Employment Opportunity Commission (E.E.O.C.) and later, in the Northern District of Illinois against ARS and Metro, alleging sex discrimination and sexual harassment [4]. Volling continued to report misconduct and raise her concerns at ARS and Metro meetings until 2012 [5]. Similarly, in 2011, Springer also voiced his concerns about ARS and Metro misconduct and aided in the Illinois Department of Public Health’s investigation into ARS [6].

After Volling filed suit, ARS began reducing Volling’s work hours and threatening to terminate her employment. Springer received similar threats for talking about Volling’s claim [7]. On June 15, 2012, ARS terminated its subcontract with Metro and fired all weekday Metro EMTs [8]. The defendant, Kurtz EMT, replaced Metro as ARS’s subcontractor [9]. The following day, Kurtz rehired every other Metro EMT except Volling and Springer [10]. Thus, Springer and Volling filed suit against ARS and Kurtz for retaliation [11]. The district court dismissed the claims because Springer and Volling had never applied for employment with Kurtz and therefore suffered no adverse action [12].

In order to establish a claim of retaliation under Title VII, the 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.”[13] A materially adverse employment action is taken when the employee was not hired for a position and the employee 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.”[14]

The Court determined that Plaintiffs suffered adverse employment actions [15]. The Court has previously held that initially, an employee need only create an inference that “the employment decision was based upon discriminatory criterion”, even if the employee was not expressly denied a requested employment opportunity [16]. Therefore, the absence of the publication of an opportunity can it itself be discriminatory when it prevents members of a protected class from applying [17]. Since Kurtz and ARS jointly failed to inform Plaintiffs of the new EMT positions but informed all other Metro EMTs who had not complained about the company’s misconduct, the evidence created an inference of discrimination [18]. The 7th Circuit found Plaintiffs properly pled an adverse action and therefore, the Court reversed the district court’s opinion regarding Plaintiffs’ Title VII claims, and remanded the case for further proceedings [19].

[1] Civil Rights Act of 1964

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

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Turner v. The Saloon, Ltd., 595 F.3d 679, 687 (7th Cir. 2010).

[14] Cichon v. Exelon Generation Co., LLC, 401 F.3d 803, 812 (7th Cir. 2005)

[15] Supra note 1

[14] Ortiz v. Werner Enters., Inc. No. 15-2574, 2016 WL 4411434 ; Int’l Bhd. Of Teamsters, 431 U.S. at 365.

[16] Supra note 1

[17] Id.

[18] Id.

[19] Id.

Categories: Retaliation
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