Damon Stepp v. Covance, Inc. , 931 F.3d 632 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3292
DAMON STEPP,
Plaintiff-Appellant,
v.
COVANCE CENTRAL LABORATORY SERVICES, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division
No. 1:17-cv-00644-SEB-DLP — Sarah Evans Barker, Judge.
____________________
ARGUED JULY 10, 2019 — DECIDED JULY 26, 2019
____________________
Before EASTERBROOK, BARRETT, and BRENNAN, Circuit
Judges.
PER CURIAM. Damon Stepp, a former temporary employee
at Covance Central Laboratory Services, sued his former em-
ployer for retaliating against him in violation of 42 U.S.C.
§ 2000e–3. He contests the district court’s entry of summary
judgment for Covance, arguing that he submitted evidence
sufficient to persuade a jury that Covance refused to hire him
permanently in retaliation for his earlier complaints about
2 No. 18-3292
discrimination. Because a reasonable jury could conclude that
Covance refused to promote Stepp to permanent status be-
cause of these complaints, we vacate the judgment and re-
mand.
Background
Covance, a manufacturer of medical test kits, hired Stepp
in December 2015 as a temporary assistant in its kit-produc-
tion department. Covance hires both “permanent” and “tem-
porary” employees. While it generally hires temporary em-
ployees for a one-year term, it often converts positive per-
formers to permanent status within four to nine months of
their start date. Stepp received positive performance reviews
in his first nine months, but Covance never made him perma-
nent. By contrast, Covance made two of Stepp’s temporary
coworkers, hired three weeks before he was, permanent
around their nine-month anniversary.
During his tenure as a temporary worker, Stepp, an Afri-
can-American male, complained about the mistreatment of
employees in the kit-production department. Within his first
three months of work, he told Covance that David Casteel, his
team leader, treated female and white employees better than
male and African-American employees. Casteel supervised
production by assigning assistants to workstations and direct-
ing their training. Stepp confronted Casteel directly, saying
that he might formally charge him with discrimination. A
manager investigated Stepp’s complaints but found them
baseless. Stepp then filed two formal charges of discrimina-
tion with the Equal Employment Opportunity Commission in
July and September 2016.
No. 18-3292 3
The same month that Stepp filed his second charge—Sep-
tember—was his nine-month anniversary. Two months later,
Casteel complained to Linda Ball, a supervisor, that Stepp of-
ten stared at him, shook his head, smirked, and said “uh oh.”
Ball discussed this complaint with Stepp, who explained that
Casteel had misinterpreted Stepp’s body language. Shortly
thereafter, with Stepp still in temporary status, Covance be-
gan a freeze on new hires in the kit-production department.
Stepp asked Ball if Covance did not promote him to perma-
nent status before the freeze because Casteel had complained
to her about him; she responded “yes.”
Stepp’s one-year term as a temporary worker ended soon
after. Gary Grubb, a human resources partner, planned to
give a 90-day extension to Stepp and other temporary work-
ers whose terms ended near the December holidays. But
Grubb later reported that Covance advised him that a 90-day
extension was too long, so he cut short the extensions of the
four temporary workers, including Stepp, who had received
them. Stepp’s term ended five weeks short of 90 days, in early
February 2017.
Proceeding pro se, Stepp sued Covance for race and sex
discrimination and retaliation in violation of 42 U.S.C.
§§ 2000e–2, 2000e–3, and 1981. Stepp presents only his retali-
ation claim on appeal. In the district court, Covance argued
that it did not offer Stepp permanent employment because of
the hiring freeze. But the court did not address Stepp’s failure-
to-promote retaliation claim; it ruled that Stepp had not al-
leged the claim in his complaint and that his opposition to
summary judgment was too late to raise it.
4 No. 18-3292
Analysis
On appeal, Stepp—now represented by counsel—con-
tends that he adequately preserved and supported his two re-
taliation claims: First, he presents his “failure-to-promote”
claim—that Covance did not hire him permanently in retalia-
tion for his discrimination complaints. Second, he advances a
“90-day” claim—that Covance also cut short his 90-day exten-
sion in retaliation for those complaints.
We begin with the failure-to-promote claim. Stepp con-
tends that the district court erred by failing to recognize that
he adequately pleaded a failure to-promote claim. He points
to his latest amended complaint, in which he alleges that Co-
vance “discriminated against [him] by terminating his em-
ployment and refusing to hire him on as a permanent full-
time employee because of his race (African-American), gen-
der (Male) and because he filed Retaliation and Harassment
complaints against his team leader, David Casteel.” Covance
counters that this sentence, buried in a 69-paragraph com-
plaint, did not adequately notify it of a failure-to-promote
claim. Moreover, it says, Stepp waived the claim at his depo-
sition, where he said that he could not recall “[a]ny other in-
stances of retaliation” besides his complaints about mistreat-
ment in the kit production department.
Stepp has preserved his claim that Covance failed to pro-
mote him to permanent status in retaliation for his discrimi-
nation complaints. The complaint explicitly alleges that Co-
vance “refus[ed] to hire him as a permanent full-time em-
ployee … because he filed Retaliation and Harassment com-
plaints.” (We note that if Covance had genuinely found the
lengthy complaint indecipherable, it could have moved for a
more definite statement under Rule 12(e) of the Federal Rules
No. 18-3292 5
of Civil Procedure.) And Covance is off the mark to suggest
that Stepp waived this claim at his deposition. A plaintiff may
testify in a manner that dooms his claim on the merits, but
unfavorable deposition testimony does not amend the com-
plaint. Even if it did, Stepp did not concede at his deposition
that Covance did not retaliate against him when it failed to
offer him full-time employment. Stepp specifically told Co-
vance that he “believe[d] [he] wasn’t offered full-time em-
ployment because of [his] complaints.” Therefore, when he
opposed summary judgment, he was entitled to press his ar-
gument that Covance failed to “offer Stepp a permanent em-
ployment position” because of its reaction to “Stepp nam[ing]
David Casteel as the subject of his discrimination and retalia-
tion complaints.”
For a retaliation claim to succeed, a plaintiff must show
that his protected activity caused an adverse action. See Boston
v. U.S. Steel Corp., 816 F.3d 455, 464 (7th Cir. 2016). For pur-
poses of this appeal, Covance accepts that Stepp’s discrimina-
tion complaints were protected activities and that the expira-
tion of his term of employment (without promotion) was ad-
verse. It argues, however, that the two were not causally con-
nected.
We “no longer recognize” a distinction between direct and
indirect evidence in retaliation cases, Lauth v. Covance, Inc.,
863 F.3d 708, 716 (7th Cir. 2017), and Stepp properly combines
his evidence. He points to the following: Covance customarily
makes satisfactory temporary workers, like him, permanent
between four and nine months after hire; it made two such
workers—hired just three weeks before Stepp—permanent in
their ninth months; it did not do so for Stepp, whose only ma-
terial difference was that in his ninth month (and earlier) he
6 No. 18-3292
had filed charges of discrimination about Casteel; and finally,
Ball told Stepp that Covance did not make him permanent be-
cause Casteel had complained about him.
From this evidence, a reasonable jury could find that Co-
vance did not promote Stepp to permanent employment in
retaliation for his complaints about discrimination. First, an
interval of only weeks between protected activity and the ad-
verse action may be brief enough to support a reasonable in-
ference of retaliation. Coleman v. Donahoe, 667 F.3d 835, 861
(7th Cir. 2012). Stepp filed a charge with the EEOC in Septem-
ber, the same month that he hit his nine-month anniversary
and Covance refused to make him permanent. This makes the
adverse action virtually contemporaneous with the protected
activity. True, suspicious timing, standing alone, is not neces-
sarily enough to support an inference of discrimination. See
Morgan v. SVT, LLC, 724 F.3d 990, 998 (7th Cir. 2013). But when
suspicious timing is accompanied by corroborating evi-
dence—as it is here—a jury, not a judge, should make the de-
cision about retaliation. See Coleman, 667 F.3d at 861–62.
In addition to suspicious timing, Covance treated cowork-
ers better than Stepp, and retaliation may be inferred from the
employer’s better treatment of similar coworkers. Boston, 816
F.3d at 463–65. Covance ordinarily converts its satisfactory
temporary workers to permanent status by their ninth month,
as it did with two employees hired in the same department
and around the same time as Stepp. Like these coworkers,
Stepp had positive work reviews. Yet despite his material sim-
ilarities to these coworkers, Covance did not make Stepp per-
manent by his ninth month.
Third, beyond the suspicious timing and the better treat-
ment of comparable coworkers, Covance’s only proffered
No. 18-3292 7
explanation for not promoting Stepp buttresses rather than
undercuts an inference of retaliation. If the defendant’s prof-
fered justification for adverse action is “unworthy of cre-
dence,” it “can be quite persuasive” evidence that the true rea-
son is unlawful. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 147 (2000); see also Yahnke v. Kane Cty., 823 F.3d 1066,
1071 (7th Cir. 2016). Covance’s only explanation for its refusal
to make Stepp permanent is the hiring freeze. But the freeze
occurred two months after Stepp reached nine months at Co-
vance, so it cannot explain Covance’s inaction at month nine.
On the contrary, Covance’s insistence that it did not promote
Stepp because of the freeze could suggest to a trier of fact that
retaliation was its true motive for not making Stepp perma-
nent.
Finally, Ball’s statement that Covance did not make Stepp
permanent before the freeze because Casteel had complained
about Stepp also supports an inference of retaliation. † The
flimsiness of Casteel’s complaint (stares and smirks) and its
timing (before the freeze) would permit a reasonable juror to
conclude that what truly irked Casteel and motivated Co-
vance to refuse to promote Stepp were Stepp’s charges of dis-
crimination. See Yahnke, 823 F.3d at 1071 (plaintiff can cast
doubt on defendant’s explanation with evidence that expla-
nation is insufficient to motivate adverse action). This
† Covance argues that Ball’s statement was inadmissible hearsay, see
FED. R. EVID. 801, but we disagree. The statement is an admission of an
agent of Covance within the scope of the agency. See id. 801(d)(2)(D). Co-
vance authorized Ball to interview workers, so the scope of her agency
included speaking about personnel decisions, including the consequence
of Casteel’s complaint. See Simple v. Walgreen Co., 511 F.3d 668, 672 (7th
Cir. 2007).
8 No. 18-3292
combination of evidence suggests that a jury should decide
whether Covance refused to make Stepp permanent to retali-
ate against him for his complaints about discrimination. See
Coleman, 667 F.3d at 861–62.
In contrast, Stepp’s other retaliation claim does not war-
rant a trial. He argues that Covance not only failed to promote
him but also cut short his 90-day extension in retaliation for
his complaints. Covance contends that Stepp did not preserve
the latter claim in the district court. This time, Covance is
right. Stepp arguably raised the claim in his complaint by al-
leging that Covance “terminat[ed] his employment … be-
cause he filed Retaliation and Harassment complaints.” But
when he opposed the motion for summary judgment, Stepp
did not argue that Covance shortened his 90-day extension
out of retaliation. As a result, Covance had no opportunity to
develop a record on this claim, and the district court had no
chance to evaluate it. Stepp therefore forfeited it. See Formella
v. Brennan, 817 F.3d 503, 512 (7th Cir. 2016); United States v.
5443 Suffield Terrace, 607 F.3d 504, 510 (7th Cir. 2010).
Accordingly, we vacate the judgment on the failure-to-
promote claim and remand the case to the district court.