Ex-Covance worker’s retaliation lawsuit reinstated

The 7^th Circuit Court of Appeals has reinstated a man’s lawsuit alleging his former employer refused to hire him permanently in retaliation of prior discriminatory complaints he filed.

Damon Stepp formerly worked for medical test kit manufacturer Covance, Inc., as a temporary assistant in its kits production department. Stepp, an African-American man, had complained about mistreatment after two of his temporary co-workers hired just weeks before him were made permanent employees while he was not.

Covance generally promotes its positive performers to permanent status within four to nine months of a worker’s start date. Although Stepp had received positive performance reviews in his first nine months, he was never advanced with his co-workers. Stepp also filed complaints against his team leader for allegedly treating female and white workers better than male and African-American employees. When his claims were found to be “baseless” by a manger, Stepp filed two formal charges of discrimination with the Equal Employment Opportunity Commission.

Around the nine-month mark of his tenure and in the same month he filed his second charge, Covance initiated a freeze of new hires in Stepp’s department. A supervisor informed Stepp that he had not been promoted to permanent status because his team leader had complained that Stepp had “stared at him, shook his head, smirked, and said ‘uh oh.’”

Stepp sued his former employer after his temporary one-year term ended, alleging race and sex discrimination and retaliation in violation of 42 U.S.C. §§ 2000e-2, 2000e-3, and 1981. The Southern District Court granted summary judgment to Covance, finding Stepp had not alleged his failure-to-promote retaliation claim in his complaint and that his opposition to summary judgment was too late to raise it.

In a per curiam opinion, the 7^th Circuit vacated the district court’s judgment in Damon Stepp v. Covance, Inc., 18-3292 , upon finding a reasonable jury could find Covance did not promote Stepp to permanent employment in retaliation for his complaints about discrimination.

“Stepp filed a charge with the EEOC in September, 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 necessarily enough to support an inference of discrimination. But when suspicious timing is accompanied by corroborating evidence — as it is here — a jury, not a judge, should make the decision about retaliation,” the panel wrote.

The 7^th Circuit further noted that Covance treated other employees better than Stepp when his comparable co-workers were promoted while he was not. Covance’s preferred explanation for not promoting Stepp “buttresses rather than undercuts an inference of retaliation” in that its only explanation for not promoting Stepp was the hiring freeze.

“But the freeze occurred two months after Stepp reached nine months at Covance, 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 permanent,” the panel wrote.

“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 (team leader David) 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 Covance to refuse to promote Stepp were Stepp’s charges of discrimination,” it wrote, remanding the case.