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In our series of posts today, we discuss how a seemingly “no brainer” termination decision can become a close call if the employee had engaged in prior, protected activity.

For example, in Coleman v. Donahoe, 667 F.3d 835 (7th Cir. 2012), the plaintiff, a long-term African-American employee, made complaints of alleged unlawful discrimination against her new white supervisor at the Postal Service. Id. at 842. She then took a leave of absence for psychiatric problems. Id. at 843. While on the leave of absence she told a psychiatrist that she had homicidal thoughts towards her white supervisor. Id. The psychiatrist then reported the plaintiff’s thoughts to the supervisor. Id. The supervisor reported the “threat” to the police. Id. Around the same time, while still on leave, the plaintiff filed two EEOC complaints against her white supervisor. Id. Several months later, while the plaintiff was still suspended from work pending investigation, she was terminated for violating the Postal Services’ policy against making threats of violence. Id. at 844. The plaintiff then filed a grievance over her termination, and an arbitrator ordered her returned to work. Id. After that, the plaintiff filed a lawsuit, alleging race discrimination, sex discrimination, and retaliation under Title VII. The district court granted the Postal Service’s motion for summary judgment, and the plaintiff appealed. Id. at 844-45.

The Seventh Circuit U.S. Court of Appeals reversed the district court’s grant of summary judgment. The court found that:

-Two white workers who allegedly held a knife to the neck of an African-American employee, who were suspended, but not terminated, were appropriate comparators to prove disparate treatment. The court explained at length its standard for proving disparate treatment through such comparisons, and articulated a pragmatic approach that does not turn on overly technical distinctions. Id. at 846-52, 858-59.

-The close timing between the plaintiff’s protected activities and her subsequent alleged mistreatment, suspension, and termination, supported her retaliation claim. Id. at 860-61.

-Evidence suggested that the plaintiff’s alleged “threat” was not a “true threat,” and even if it was, “a number of background facts cast doubt on the assertion that [she] was dangerous.” Id. at 855-56.

-The Postal Service admittedly had options short of termination to gauge the plaintiff’s propensity for violence, such as seeking a “fitness for duty” certificate. Id. at 856-57.

-The arbitrator’s ruling, while not preclusive, supported the plaintiff’s claim that the Postal Service’s basis for termination was pretextual. Id. at 853-57.

-The fact that the plaintiff made the statement to her psychiatrist somehow favored the plaintiff because “[i]t would be troubling to think that anyone who confides to her psychiatrist that she has fantasized about killing her boss could automatically be subject to termination for cause.” Id. at 856.