Federal courts often use the well-known McDonnell Douglas burden-shifting test to determine whether an employer has unlawfully discriminated against an employee.
Now the 7th Circuit Court of Appeals has ruled that when it considers an Illinois workers’ compensation retaliation claim, it must apply an Illinois state law rule that is more demanding for employees than the McDonnell Douglas test.
Under McDonnell Douglas, the plaintiff must make an initial showing of discrimination by proving:
- He’s part of a protected class.
- He met his employer’s legitimate performance expectations.
- He suffered an adverse employment action.
- Similarly situated employees outside of his protected class were treated more favorably.
If the plaintiff successfully proves all four points, the burden shifts to the employer to establish a legitimate, nondiscriminatory reason for the alleged adverse action. If the employer can do that, the burden shifts back to the plaintiff to prove that the employer’s stated reason was just a pretext for discrimination.
The 7th Circuit’s recent decision in Gacek v. American Airlines (No. 09-3131, 7th Cir., 2010) alters that principle for Illinois employers.
Caught on tape
American Airlines baggage handler John Gacek sprained a finger while lifting a bag at work. He reported the injury, and the airline’s administrator of workers’ comp claims opened a claim file. (See “Checking up on alleged leave abuser? Document why you suspect particular employee”.)
A doctor at the airport’s medical clinic told Gacek he should wear a splint and do only light work until he recovered. Another doctor told him not to lift anything using the hand with the sprained finger. About a week later, Gacek called in sick and missed three days of work.
Because it was the holiday season (whentypically spikes), the airline became suspicious and hired a detective agency to check up on Gacek. Investigators managed to catch Gacek on videotape running errands and lifting and carrying bags with both hands and not wearing his splint.
Without knowing about the surveillance, Gacek told the airline he had been absent from work because of the flu. Then Gacek changed his story: He didn’t have the flu, but his finger was bothering him so much he couldn’t work—an explanation at odds with the surveillance tape. American fired Gacek for lying about the reasons for his absences.
American wins two rounds
Gacek sued American Airlines in federal court for retaliatory discharge in violation of the Illinois Workers’ Compensation Act. The district court granted summary judgment for American, finding that Gacek failed to show the airline’s explanation for his termination was pretextual.
The 7th Circuit affirmed the district court’s decision. The court found it unlikely that an airline would fire a baggage handler because he sprained a finger while working and might seek workers’ compensation.
The court held that “no reasonable jury could find that the airline had fired the plaintiff because its claims administrator had opened a file on the injury rather than because it believed that he had lied about having the flu and had disobeyed the doctor’s orders to wear a splint on the injured finger and not lift anything with that hand.”
Is McDonnell Douglas appropriate?
Because American wanted the case dismissed, the 7th Circuit had to settle a basic question. What’s the proper framework for ruling on an employer’s motion for summary judgment in a retaliatory discharge case governed by Illinois law: federal law—specifically the McDonnell Douglas test—or Illinois state law?
The court evaluated how applying the McDonnell Douglas test would change the outcome. The McDonnell Douglas test doesn’t require the plaintiff to directly prove a causal, retaliatory link between an employee’s act and his discharge. The employee would win without addressing whether filing a workers’ compensation claim was the cause of his termination.
Illinois’ tougher standard wins
On the other hand, Illinois’ rule requires the plaintiff to prove that the alleged discrimination was the cause of his termination. Illinois doesn’t want to give retaliatory discharge plaintiffs an advantage by applying the McDonnell Douglas test.
The 7th Circuit ruled that when the federal and state standards are materially different and that difference is based on substantive state policy, a federal court must apply the state law standard to a motion for summary judgment when a retaliatory discharge case governed by Illinois law is litigated in federal court.
This decision is good news for employers. It makes it harder for plaintiffs to win a retaliatory-discharge claim in the 7th Circuit.
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