Where an employee was disciplined the day after giving a deposition in a sexual discrimination suit, summary judgment on her retaliation claim was improperly granted to the employer.
“Whether the Notice of Disciplinary Action and hours restriction memorandum she received the day after she gave her deposition were materially adverse present much closer questions that will be best resolved by a jury. Generally, written warnings, standing alone, do not constitute materially adverse actions, see Lloyd, 552 F.3d at 602; Johnson, 325 F.3d at 902.; the post-complaint cautionary notice does not trouble us. But context is a crucial consideration in Title VII retaliation actions, Burlington, 548 U.S. at 69, and in this context, we agree with Benuzzi that the sweeping Notice of Disciplinary Action citing petty misdeeds that allegedly occurred months ago, coupled with the unexplained memorandum restricting her access to Pershing, ‘could constitute an adverse action within the meaning of the direct method of proving retaliation,’ Silverman, 637 F.3d at 741. A reasonable employee could be deterred from filing a discrimination complaint or participating in a deposition if doing so would be followed by the (highly probable) possibility of discipline for activities he may have long forgotten and the limitation of his ability to be present at his workplace without first obtaining permission from his boss. Cf. Lang v. Ill. Dep’t of Children & Family Servs., 361 F.3d 416, 420 (7th Cir. 2004) (‘Lang’s evidence raises the inference that Beckelman was setting him up to fail . . . .’).We leave that question for a jury to assess in the first instance, since we also find that Benuzzi has presented evidence from which a jury could infer that her statutorily protected activities precipitated these actions.”
Affirmed in part, and Vacated in part.
10-3021 Benuzzi v. Board of Education
Appeal from the United States District Court for the Northern District of Illinois, Conlon, J., Tinder, J.