Wednesday Federal Employment Law Update

Welcome back to my blog!  On Wednesdays I discuss a new federal decision in employment law, a specialty area of mine and of my firm, Clarke Silverglate, P.A. 

This week, I want to discuss Loudermilk v. Best Pallet Co., 2011 WL 563765 (7th Cir. Feb. 18, 2011), a 7th Circuit opinion reversing summary judgment in a Title VII retaliation case. 

In just a 4-page opinion, the Loudermilk case has it all — an interesting fact pattern, some humorous ridicule from the bench, and a key point of law as it relates to retaliation.

Plaintiff Loudermilk, an African-American, held the principal task of disassembling pallets and stacking wood for reuse.  Loudermilk worked opposite two or more Hispanic workers at a time.  Loudermilk contended that employees should have been lined up evenly.  When he could not keep up, he contended that his Hispanic co-workers would ridicule him with racial epithets.  He complained to management about the situation.  After receiving no remedial efforts, he took some photographs of the worksite in anticipation of filing a Charge of Discrimination with the EEOC.  When he was told by his supervisor to stop taking photos, a violation of company policy, he reiterated his complains, to which he was told to put them in writing. 

Loudermilk testified that he prepared a written complaint, and handed it to his supervisor the next day.  He was terminated on the spot.  After filing a Charge of Discrimination based on retaliation, Loudermilk later filed the lawsuit.  His employer was granted summary judgment by the trial court, which found that Loudermilk’s only evidence as to retaliation was timing. 

The 7th Circuit reversed, finding a material fact issue over whether the supervisor read the note prior to terminating Loudermilk, and also finding that an inference of retaliation could be drawn due to the immediate timing between delivery of the written complaint and the termination.  (citing Clark Cty. School Dist. v. Breeden, 532 U.S. 268, 273 (2001)). 

On a humorous note, the Court discussed how a jury could believe that the supervisor had read the note or, even if he had not, a jury could conclude that the supervisor knew what was in the note based on his instruction the previous day to put the complaint in writing.  In support, the Court quipped, “What did [the supervisor] think was in the note he received the next day?  An invitation to a birthday party?”  

The takeaways from this case are the potential for an adverse inference of retaliation and a reaffirmation of a trial court’s duty to view all evidence in a light most favorable to the nonmovant as it relates to a motion for summary judgment.

See you tomorrow for my Thursday Poker Blog!

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