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Appeals Court Reverses Summary Judgment in FMLA and Title VII Retaliation Case, Criticizes Defendant for Tactics

On August 7, 2014, the Seventh Circuit Court of Appeals reversed the decision by the United States District Court for the Northern District of Illinois to grant summary judgment to the Defendant in Malin v. Hospira, Inc. Judge Hamilton, writing the Court’s Opinion, criticized the District Court’s reasoning and actually rebuked the Defendant for the arguments it gave in seeking and defending summary judgment.

Plaintiff Deborah Malin alleged Title VII and FMLA retaliation by her employer, Hospira, Inc. (Abbott Laboratories, at the time she was hired), arguing that she was repeatedly denied promotion from about 2003 through 2007 in retaliation for either (i) pursuing a sexual harassment complaint, (ii) telling management she would need FMLA leave, or (iii) some combination of (i) and (ii).

In July 2003, Plaintiff Malin told her direct supervisor Bob Balogh that she intended to complain to Human Resources about sexual harassment by her indirect supervisor Satish Shah. Balogh then called Shah’s boss, Mike Carlin, and told him about Malin’s intention to complain. Balogh made this call in Ms. Malin’s presence, and she heard Carlin shouting through the phone and, when Balogh hung up, he told Malin that Carlin had told him to do everything in his power to stop Malin from going to Human Resources. Malin then made a formal sexual harassment complaint. Abbot investigated Malin’s complaint, and eventually issued him a counseling memorandum and written warning, but no further action was taken.

Malin would continue to work under Carlin’s decision-making authority for at least five more years. The Court found that she had provided enough evidence that Carlin might have remained hostile toward her over this entire time, and that the Plaintiff could plausibly argue that he made a series of decisions which denied her advancement opportunities because of his continued hostility about the sexual harassment complaint. While she received glowing reviews from just about everyone else, as long as Carlin remained the final decision-maker for all promotions in the IT department, Malin’s career stagnated. In fact, as part of a company reorganization she was actually demoted from level-2 to level-3 manager, after a new position was created above hers. That position remained open for over a year, until Carlin Malin’s new manager to hire an external candidate for the position. Malin’s application for the position was never considered.
The Defendant had argued in District Court, and the Judge had agreed, that the three-year gap between Malin’s complaint and the reorganization undermined any inference about retaliation by Carlin. But the Circuit Court cites several decisions in which it was made clear that the mere passage of time between protected activity and adverse action does not undermine a retaliation complaint.

Regarding the FMLA retaliation claim, the Defendant had argued that Carlin’s decision not to promote Malin could not have been retaliation for her FMLA claim, since that claim was made days after a meeting in which the decision not to promote her had already been made. Again poring over the evidence, the Appeals Court found that this claim was disputable, especially considering that no evidence was offered porporting to show that such decisions had been made then.

The Circuit Court Judges closed their Opinion paper by scolding the Defense for “misrepreset(ing) the record and Malin’s legal arguments” by “cherry-pick(ing) isolated phrases from Malin’s deposition…” They warn Defense counsel that “this approach to summary judgment…quickly destroys their credibility with the court.” At one point the Judges referred to the Defendant’s legal strategies as “shenanigans,” and highlighted the dangers they involve.

If you believe you have been retaliated against for claiming FMLA leave from work, or for complaining to management about unlawful behavior at work, please contact The Harman Firm, LLP.

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