Title VII Violation – Retaliation Claim

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7^th Circuit Court of Appeals

Case Name: Kelley Donley v. Stryker Sales Corporation

Case No.: 17-1195

Officials: MANION, SYKES, and HAMILTON, Circuit Judges.

Focus: Title VII Violation – Retaliation Claim

Kelley Donley sued her former employer, Stryker Sales Corporation, for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–3. She argues that Stryker fired her in retaliation for filing an internal complaint against a sales manager who had sexually harassed another employee. The district court granted summary judgment for Stryker, finding that Donley did not offer evidence supporting a causal link between her harassment complaint and Stryker’s decision to fire her. Applying the familiar standard for summary judgment, we must give Donley as the non‐moving party the benefit of conflicts in the evidence and any reasonable inferences in her favor. Under that standard, we find a genuine issue of material fact about the reason Stryker fired her. We therefore reverse the judgment and remand for trial.

Our account of the facts here does not vouch for the objective truth of every detail but applies the summary‐judgment standard to the evidence, and there are some key disputed facts. In 2010, Donley began working as the corporate‐accounts director for Stryker, a medical‐equipment manufacturer and retailer. She repeatedly failed to submit her expense reports, however, and was demoted to clinical manager.

On appeal, Donley argues that the suspicious timing of the investigation could convince a reasonable factfinder that Thompson and Ferschweiler decided to fire her in retaliation for filing the internal complaint. She has offered evidence that both Thompson and Ferschweiler knew about the photo‐ graphs before the August 2014 investigation. Neither took any disciplinary action against her until after she reported the other manager for sexual harassment. She points to Stryker’s response to her EEOC charge. Stryker said that Thompson saw the photographs at the team meeting in Vail. That evidence is helpful to Donley, both in contradicting Stryker’s defense in the lawsuit and also in suggesting that Thompson did not think Donley’s actions in Vail warranted her firing, at least initially.

Stryker counters that the EEOC statement should not be admissible as evidence against it. Stryker contends that this court has been “reluctant to give substantial weight to a position taken in adversary proceedings before the Department [of Human Services].” See McCoy v. WGN Cont’l Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992). In McCoy an employer accused of age discrimination asserted conflicting positions in administrative proceedings and federal court. We concluded that the discrepancy was not evidence of “per se pretext” be‐ cause parties in administrative forums are influenced by different factors and incentives that may not exist in federal court. Id. at 373–74.

While such comparisons often present factual issues for juries to decide, we agree with Stryker that in this case, Donley and the fired regional sales manager were too different fort his comparison to defeat summary judgment, at least on the record now before us.  Donley and the sales manager reported to different supervisors and were subject to different standards. The manager occupied a more senior position than Donley. Without additional information about the nature and circumstances of the sexual‐harassment complaint, the outcome of the internal investigation, and other mitigating and aggravating factors, we could not say that Donley and the sales manager engaged in misconduct of similar gravity so as to justify the comparison.

For these reasons, we REVERSE the grant of summary judgment for defendant and REMAND for further proceedings consistent with this opinion.

Reversed and Remanded

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.