Promotion After Protected Activity Dooms Employee’s Retaliation Claim

What does unlawful retaliation not look like? Burton v. Board of Regents of Univ. of Wisc. Sys. (7th Cir. 3/17/17) offers a good example.

Sabina Burton, a tenured track professor at the University of Wisconsin, claimed that she suffered retaliation after complaining about witnessing sexual harassment within her department. As a result, she claimed that her colleagues withdrew support for a new curriculum for which she had been advocating. Ultimately, however, the court concluded that a promotion and pay raise after Burton’s claimed protected activity doomed her retaliation claim.

Professor Burton undoubtedly feels that she has been treated unfairly by some of her superiors at the University because she reported alleged harassment and proceeded with this case. Yet the record does not support her claims. During the relevant period, Burton was granted tenure by a unanimous vote and the University held a public ceremony celebrating Burton’s receipt of a grant from AT&T. Dean Throop even sought an upward salary adjustment for her after she had brought a charge with the Wisconsin ERD. Burton’s frustrations may be significant, but they do not amount to actionable retaliation.

This court (correctly, in my opinion) concluded that no reasonable juror could find that an employer which promotes an employee only months after an alleged harassment complaint would nevertheless harbor a retaliatory motive.

The lesson here is not to promote or give a raise to every employee who engages in protected activity. Instead, take away this lesson. At the end of the day, retaliation and discrimination cases hinge on a “more likely” standard. In considering the totality of the evidence, is it more likely than not that the employer retaliated/discriminated against the employee? That burden becomes difficult for an employee to overcome when an employee — despite some slights and unfair treatment following protected conduct — enjoys subsequent benefits.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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