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Litigious maintenance director not promoted, not reappointed, but not because of race

By Joy P. Waltemath, J.D.

The employee lacked evidence that being transferred to a different building after not being reappointed was unusual, and the record did not show any evidence of racial animus.

Because a nonpromoted and ultimately terminated African-American assistant director of building maintenance for a state university had not identified evidence that her ethnicity was the reason that she was not reappointed, nor did she have evidence of a causal connection between protected activity—her two dismissed state-court lawsuits about her nonpromotion—and her eventual termination, the Seventh Circuit affirmed summary judgment against her Title VII race discrimination and retaliation claims (LaRiviere v. Board of Trustees of Southern Illinois University, June 5, 2019. Kanne, M.).

Not promoted. The African-American woman was hired as an assistant director of building maintenance and had worked at Southern Illinois University–Edwardsville (SIUE) for nine years when her supervisor announced his retirement. She asked about becoming the new director, which would have required that two requirements be waived: one, that the position be publicly posted, and two, that it be filled by someone with an engineering degree. The university declined, appointing instead a 30-year Navy veteran who was a civil engineer with experience supervising hundreds of employees. Still, she believed she had been passed over unfairly and accordingly filed two state-court discrimination lawsuits, both of which ultimately were dismissed.

Not the best working relationship. The new director hired an associate director of the facilities department to whom the employee reported, although the relationship was not ideal. On multiple instances, for example, she refused to sign a Position Description Questionnaire (essentially a job description), later refusing to sign an updated PDQ because she objected to the new duties and responsibilities it included. She eventually was given an updated PDQ, which the employee believed did not accurately reflect her true duties and which she signed “under duress.”

She also submitted sick leave and vacation requests for a two-week period during which she wasn’t ill and actually tentatively planned to work, but the court noted she “didn’t want to comply with a recently implemented 48-hour notice requirement for leave in the event her plans changed.” Even so, she received positive performance reviews, no written reprimands, and only one oral reprimand (for refusing to discipline a subordinate employee).

Not reappointed. But in 2016, the university told the employee she would not be reappointed, which meant her employment would end in a year. It was undisputed that employees who have not been reappointed are often transferred to a different office to serve out their term, and she was transferred to a different, recently built building containing both offices and laboratories.

The employee quickly identified a number of deficiencies—discolored drinking water, high humidity, and a refrigerator including suspicious material (labeled “Student Sheep Brains”). However, maintenance addressed all the employee’s concerns, except for the high humidity, within ten days. When her final year ended, the university replaced her with a Caucasian man without a college degree.

Not overturned on appeal. The district court granted summary judgment for the defendants on all counts in the employee’s subsequent federal-court lawsuit; she appealed with respect only to her Title VII discrimination and retaliation claims. The Seventh Circuit affirmed, even though the district court analyzed her Title VII claims by inquiring whether she had identified any “direct” or “indirect” evidence, an approach the Seventh Circuit has “roundly rejected” in favor of asking whether a reasonable juror could conclude that the employee would have kept her job if she had a different ethnicity, and “everything else had remained the same.”

Not racial discrimination. She had no evidence showing intentional discrimination, so the appeals court turned to the McDonnell Douglas burden-shifting framework. But although the employee primarily argued that she suffered an adverse employment action when the university reassigned her to a new building, that really wasn’t disputed. “Everyone agrees that her termination was adverse, and [her] transfer to a new office with subpar working conditions seems to be as well,” noted the appeals court. But the record provided no support for finding her mistreatment was related to membership in a protected class.

Specifically, the employee did not show that coworkers ever made racially derogatory comments to her or others, nor identify appreciable circumstantial evidence of racial animus. She provided no contradictory evidence to the university’s testimony that employees who have not been reappointed are commonly transferred to another building to serve out their term. Instead she argued that similarly situated white employees “were not treated as shabbily” because “[n]one of the other white managers in Facilities Management were ostracized and forced to join” her in the other building. But that wasn’t not enough to create a triable issue, given that no other facilities managers were terminated around this time.

Not retaliation either. Her retaliation claim failed as well. While she contended that the university terminated her in retaliation for her prior state-court lawsuits against it, her appeal in the second state-court suit ended in July 2015, and it was tenth months later, May 5, 2016, when it made the decision not to reappoint her. “Suspicious timing alone” may not support a reasonable inference of retaliation; the employee argued that “together with other facts” timing may create an inference, but she never indicated “what those other facts might be.” There was no record evidence the university based any employment decisions on those state-court lawsuits, and there weren’t any similarly situated employees. The fact that the university decided to terminate her ten months after her lawsuit ended did not, by itself, create a triable issue of fact.