Jottings By An Employer's Lawyer

Friday, January 21, 2005

7th Circuit Pearl of Wisdom on What Is NOT Direct Evidence In Retaliation Case

Buried in an otherwise legally unremarkable opinion is good language by the 7th Circuit on what is NOT direct evidence in a retaliation case. The distinction between direct evidence, which proves a fact in question without reliance on inference or presumption, and indirect evidence is critical in determining whether the McDonnell Douglas burden shifting analysis is used.

In Mannie v. Potter (7th Cir. 1/20/05) [pdf], a postal employee alleged discrimination under the Rehabilitation Act and argued she had direct evidence of retaliation. The "direct evidence" was proof that her supervisors knew of her protected activity and took a "dim view" of it. It is not a stretch to think that such evidence would be available in many retaliation cases. Think for a moment about the deposition of a supervisor charged with being a racist in an EEOC charge and this hypothetical exchange:

Q: Did it make you happy when the plaintiff filed an EEOC charge claiming you did not promote her because she was black?

A: Well, I could not say it made me happy.

A dim view of the protected activity?

Even if it is, it does not get a plaintiff into the more favorable land of a direct evidence claim, at least it won't in the 7th Cir according to Mannie:

But even if we accept that Mannie’s supervisors “took a dim view of her complaining of discrimination,” this is not direct evidence because it requires the inference that her supervisors’ negative view of her discrimination charges caused them to take an
adverse employment action.

This may be remarkable only because it would have been so significant if it had gone the other way, but sometimes it is helpful to have a nice statement of the law on what seems like a simple proposition.

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