James Mollet v. City of Greenfield , 926 F.3d 894 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-3685
JAMES A. MOLLET,
Plaintiff-Appellant,
v.
CITY OF GREENFIELD,
Defendant-Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:16-cv-01145-LA — Lynn Adelman, Judge.
ARGUED MAY 23, 2019 — DECIDED JUNE 12, 2019
Before BAUER, MANION, and BRENNAN, Circuit Judges.
BAUER, Circuit Judge. In this case we must decide whether
James Mollet’s complaint about a racially charged incident was
the but-for cause of his constructive discharge. For the reasons
below, we answer in the negative and affirm the decision of the
district court.
2 No. 18-3685
I. BACKGROUND
James Mollet began working as a firefighter for the Green-
field Fire Department in 1995. The Greenfield Fire Department
had three eight-hour shifts each day and one battalion chief
supervised each. Mollet rose through the ranks of the fire
department and became a battalion chief in 2009.
In November 2011, John Cohn was appointed chief of the
department and George Weber assistant chief. Mollet and
Cohn were friendly before he was appointed chief, but
following the appointment phone calls and text messages
between the two ceased. The relationship was further strained
because Mollet felt Cohn’s actions as chief were inconsistent
with the vision for the department Mollet and Cohn discussed
prior to Cohn’s promotion.
With that we move to the incident that underpins the
theory of Mollet’s case. At the end of each shift firefighters
stow their gear and bedding and when one fails to do so, other
firefighters sometimes prank the offender. On February 17,
2012, firefighter Cesar Hernandez forgot to stow some of his
gear. The firefighters in the following shift hung the items from
the ceiling and posted a paper sign with a Mexican flag printed
on it with the words “Border Patrol” written beneath it.
Hernandez did not file a complaint after the incident, but
another firefighter who found the incident discriminatory
reported it to her superior officer, who reported the incident to
Mollet.
Mollet emailed Cohn and Weber later that evening and
informed them of the incident. Weber replied:
No. 18-3685 3
Thank you for bringing this to our attention. I
agree with you 100% that this crosses the line of
firehouse hazing. Could you do some investigat-
ing into this incident and report any findings
back to me. This type of behavior should not
and will not be tolerated. Please let me know
what you find out.
Mollet indicated he would rather not investigate the incident
himself, but Cohn emailed that Mollet should investigate
because Cohn did not want to hand the issue over to those
under whose watch it may have occurred.
An individual eventually took responsibility for the
incident and four individuals were disciplined—one lost a day
of vacation and three received verbal reprimands.
In the following months Cohn and Weber were critical of
Mollet’s performance. In March 2012, a month after the
incident, Cohn and Weber criticized Mollet’s performance in
checking off probationary firefighters on certain tasks. On
April 12, 2012, Weber sent an email critical of Mollet’s leader-
ship skills. The following day, Weber informed Mollet that he
would be taking over the lead on rapid intervention team
training. Mollet was later removed from his position oversee-
ing the firefighter internship program after a former intern
improperly listed the fire department as a former employer.
On August 10, 2012, Cohn and Weber met with Mollet,
criticized his communication skills, and asserted that he had
been critical of Weber and Cohn with his fellow firefighters.
On August 31, 2012, Cohn criticized Mollet for issuing com-
mendation letters to public works employees without notifying
4 No. 18-3685
him. In November 2012, Cohn criticized Mollet because an
EMT he had trained failed to notify the police of a patient’s
injuries when it appeared they were the result of domestic
violence. Cohn also criticized Mollet’s leadership and told him
in a meeting on November 15 that he needed to change. He
also informed Mollet that it may be too late for him to change
and that he might be demoted or reassigned.
The following month, Mollet applied for a position in
Menomonee Falls. He indicated in his application that he
desired an opportunity to take on challenges their fire depart-
ment presented with its unique structure and potential
upgrade of its emergency medical services to the paramedic
level. Mollet received a conditional offer of employment from
Menomonee Falls on February 4, 2013. On February 8, Mollet
met with Cohn and Weber and they indicated that he would be
demoted if he did not take the position in Menomonee Falls.
On February 19, 2013, Mollet told Weber he was going to
accept the offer from Menomonee Falls which was contingent
upon his passing a physical and psychological exam. Mollet
received a letter from Cohn accepting Mollet’s resignation;
Mollet responded stating he would not resign until the
contingencies of his future employment were met, but on
February 28 Cohn responded that Mollet’s employment had
terminated on February 24. Mollet was ultimately placed on
paid leave until he submitted his letter of resignation on
March 23, 2013, and began his employment with Menomonee
Falls on March 25.
Mollet filed a complaint in federal court on August 25, 2016,
alleging he was retaliated against for opposing discrimination
No. 18-3685 5
in the workplace. The gravamen of the complaint is that Mollet
was treated poorly and forced to resign as retaliation for
complaining about the Hernandez incident. The defendants
moved for summary judgment and the district court referred
the case to a magistrate judge for a report and recommenda-
tion. The magistrate judge recommended the motion be
granted and the decision was adopted in toto by the district
court. The court found summary judgment was appropriate
because no reasonable trier of fact could find that reporting the
Hernandez incident was the but-for cause of his constructive
discharge. Because we agree, we affirm.
II. DISCUSSION
Summary judgment is appropriate when “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
We review a district court’s grant of summary judgment
de novo and construe all facts and draw all reasonable infer-
ences in favor of the nonmoving party. Levitin v. Nw. Cmty.
Hosp., 923 F.3d 499 (7th Cir. 2019).
Title VII prohibits employers from retaliating against
employees for complaining about discrimination. 42 U.S.C.
§ 2000e-3(a). Mollet argues that the Greenfield Fire Department
retaliated against him for complaining about the discrimina-
tory incident involving Hernandez. To establish a prima facie
case of retaliation under Title VII, Mollet must show: (1) he
engaged in a statutorily protected activity, (2) his employer
took a materially adverse action against him, and (3) there is a
causal link between the protected activity and the adverse
action. Robinson v. Perales, 894 F.3d 818, 830 (7th Cir. 2018). The
6 No. 18-3685
district court found that Mollet carried his burden on the first
two elements, but failed to provide evidence that would lead
a reasonable jury to find a causal connection. Because we
agree, we will address only the issue of causation.
Mollet asserts the conditions at the fire department rapidly
deteriorated after he complained about the Hernandez
incident. In Mollet’s opinion, this shows complaining was a
but-for cause of his constructive discharge, implying that
several but-for causes may contribute to an adverse employ-
ment action. In crafting this argument, Mollet misconstrues the
Supreme Court’s holding in University of Texas Southwestern
Medical Center v. Nassar, 570 U.S. 338, 362 (2013), as well as a
footnote from this Court’s opinion in Carlson v. CSX Transporta-
tion Inc., 758 F.3d 819, 828 n.1 (7th Cir. 2014).
In Nassar, the Supreme Court rejected the argument that the
causation requirement in Title VII retaliation claims merely
requires that plaintiffs show the protected activity was a
“motivating factor” in a decision to retaliate against the
employee. 570 U.S. at 354. The Court cited Gross v. FBL
Financial Services, Inc., 557 U.S. 167 (2009), which held similar
language in the Age Discrimination in Employment Act
warranted a finding of but-for causation. Id. at 350 (citing
Gross, 557 U.S. at 176). The Court noted that Gross held that “an
employer took adverse action because of age meant that age
was the reason that the employer decided to act, or, in other
words, that age was the but-for cause of the employer’s
decision.” Id. (emphasis added and internal quotation marks
omitted). The dissent pointed out that “[w]hen more than one
factor contributes to a plaintiff’s injury, but-for causation is
problematic” because there can only be one but-for cause of an
No. 18-3685 7
action. Id. at 384. (Ginsburg, J., dissenting). “When an event is
‘overdetermined,’ i.e., when two forces create an injury each
alone would be sufficient to cause, modern tort law permits the
plaintiff to prevail upon showing that either sufficient condi-
tion created the harm.” Id. (Ginsburg, J., dissenting) (citing
Restatement (Third) of Torts § 27, at 376–77). The Nassar
majority did not imagine a regime where plaintiff could merely
establish a but-for cause: “the proper conclusion here … is that
Title VII retaliation claims require proof that the desire to
retaliate was the but-for cause of the challenged employment
action.” Id. at 352 (emphasis added).
Our opinion in Carlson is not contrary. In Carlson, we
merely explained that factors other than the protected activity
could contribute to bringing about an adverse action, but a
plaintiff still must prove the protected activity was the but-for
cause of the adverse action—that “the adverse action would
not have happened without the activity.” 758 F.3d 819, 828 n.1
(7th Cir. 2014). Thus, the question in this case is not, as the
plaintiffs put it, whether Mollet complaining about the Her-
nandez incident was a but-for cause of the adverse action,
rather whether the protected activity was the but-for cause of
the adverse action. Heath v. Indianapolis Fire Dep’t, 889 F.3d
872, 874 (7th Cir. 2018). In other words, would Mollet have
not been constructively discharged if he did not complain
about the Hernandez incident. Robinson, 894 F.3d at 834.
Mollet acknowledged during his deposition that he was
miserable at work once Cohn became chief in November 2011,
three months before the Hernandez incident occurred. As
noted above, communication ceased between Cohn and Mollet
shortly after Cohn became chief and before the Hernandez
8 No. 18-3685
incident. Additionally, Mollet was told by members of his
battalion that management was monitoring his performance
before the Hernandez incident. Cohn’s criticism also began
before the Hernandez incident—he called out Mollet for failing
to renew his EMT license.
As the district court noted, there is also evidence in the
record that Cohn and Weber both responded promptly and
positively to Mollet’s complaint about the Hernandez incident
and agreed that the conduct was unacceptable. Cohn and
Weber disciplined four individuals after the investigation was
complete. Mollet argues that Cohn and Weber were actually
frustrated that Mollet complained about the incident and their
response, insistence on an investigation, and eventual disci-
pline of several firefighters was pretextual. In support of this
argument Mollet cites evidence in the record that indicates
Weber knew of the incident before Mollet reported it. This,
Mollet argues, shows that Weber and Cohn planned to do
nothing until Mollet complained. But there is no evidence in
the record that Cohn or Weber disagreed with Mollet or
considered the issue unworthy of investigation. Nor is there
evidence that Cohn or Weber were displeased that Mollet
brought the issue to their attention. The mere fact that they
may have known about the incident before Mollet complained
is not evidence that the entire investigation and discipline was
pretextual. See Boss v. Castro, 816 F.3d 910, 917 (7th Cir. 2016)
(holding that “circumstantial evidence must point directly to
a discriminatory reason for the employer’s action “ and “a
plaintiff’s subjective beliefs are insufficient to create a genuine
issue of material fact”). A reasonable jury could not conclude
as much without engaging in speculation.
No. 18-3685 9
Mollet also argues the timing of Cohn and Weber’s criticism
was suspicious because it began less than a month after the
Hernandez incident and continued through his constructive
discharge nearly a year later. But these events have little in
common other than the fact that they occurred after the
Hernandez incident. There is nothing that connects them to the
Hernandez incident and no evidence indicating that the
complaints about Mollet were related to any goal other than
improving his job performance. Without more, this evidence
provides little support for Mollet’s causation argument. Gracia
v. SigmaTron International, Inc., 842 F.3d 1010, 1021 (7th Cir.
2016) (noting that “suspicious timing alone is rarely enough to
create an inference of retaliatory motive”).
Thus, there is no evidence presented by the plaintiff that
could cause a reasonable juror to find that but-for Mollet
complaining about the Hernandez incident, Cohn and Weber
would not have criticized Mollet for these potential deficien-
cies in his performance. Furthermore, there is substantial
evidence that Mollet’s relationship with Weber and Cohn was
strained and Cohn had demonstrated a skepticism regarding
the sufficiency of Mollet’s performance before the Hernandez
incident occurred. Because a reasonable jury could not find the
causation required in a Title VII retaliation case based on the
evidence in the record, we affirm the district court.
III. CONCLUSION
Considering all of the above, we affirm the district court’s
decision to grant summary judgment in favor of defendant.