39 F.4th 903
7th Cir.2022Background
- Nazariy Lesiv, a carman for Illinois Central, testified in a deposition for his brother Lyubomir’s state discrimination suit in April 2018; Lesiv does not show that the supervisors who disciplined him knew of that testimony.
- In July 2018 Lesiv had a heated confrontation with supervisor Anthony Grayer; he was then assigned to work the RIP track alone (an unusually dangerous assignment), refused, and was suspended without pay indefinitely for insubordination. He missed two days of work and later received backpay.
- Lesiv sued under Title VII for (1) individual retaliation (for his own testimony) and (2) third-party retaliation (on behalf of his brother under Thompson).
- The district court granted summary judgment for Illinois Central; the Seventh Circuit affirmed overall while rejecting some district-court reasoning.
- The court held the RIP-alone assignment and the unpaid suspension could be materially adverse, but Lesiv failed to show the requisite but-for causation because decisionmakers lacked knowledge or evidence of retaliatory motive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Individual retaliation (knowledge/causation) | Lesiv testified for his brother and was given a dangerous assignment and suspended because of that protected activity | Supervisors (Grayer, Duggan) did not know Lesiv had testified; no causal link | Materially adverse actions present, but summary judgment affirmed because no evidence decisionmakers knew of Lesiv’s protected activity (no but-for causation) |
| Third-party retaliation (Thompson standing/causation) | Illinois Central harmed Lesiv to retaliate against Lyubomir; Lesiv may sue as the injured third party | No evidence employer intended to harm Lyubomir via disciplining Lesiv; timing and comparators do not show causation | Court treats individual and third-party claims as distinct but rejects third-party claim on merits for lack of evidence that employer acted to harm brother (no but-for causation) |
| Materially adverse action — RIP assignment & suspension | Solo RIP assignment (dangerous) and indefinite unpaid suspension would dissuade a reasonable employee from protected activity | Assignment was not completed and suspension was brief/backpaid; thus not materially adverse | Both the dangerous solo assignment and the unpaid suspension can qualify as materially adverse; left for jury on that element if causation shown |
| Comparator & timing evidence for motive | Disparate treatment vs. Barwan (who refused similar work and was not suspended) and proximity to deposition scheduling support inference of retaliation | Barwan’s conduct differed (no insubordination toward decisionmaker); long gaps (months–years) weaken causal inference | Comparator and timing insufficient to create genuine dispute on causation; the gaps and distinguishing facts defeat inference of retaliatory motive |
Key Cases Cited
- Thompson v. North American Stainless, LP, 562 U.S. 170 (2011) (recognizing third-party retaliation claims under Title VII)
- Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) (standard for what counts as a materially adverse action in retaliation cases)
- University of Texas Southwestern Medical Ctr. v. Nassar, 570 U.S. 338 (2013) (retaliation requires but-for causation)
- Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016) (court must consider all relevant evidence as a whole at summary judgment)
- Lewis v. City of Chicago Police Dep’t, 496 F.3d 645 (7th Cir. 2007) (unusually dangerous assignments can be materially adverse)
- Nagle v. Village of Calumet Park, 554 F.3d 1106 (7th Cir. 2009) (unpaid suspension can be materially adverse even if later reversed)