7th Circuit affirms judgment to Eskenazi in dental hygienist’s discrimination suit

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A dental hygienist who claimed she did not get a pay raise as a result of racial discrimination lost her appeal of the judgment in favor of her employer at the 7th Circuit Court of Appeals.

Lily Abebe, a Black woman of Ethiopian origin, started a job at Eskenazi Health’s Grassy Creek Dental Clinic in 2014. Abebe was an “expanded function” dental assistant, meaning she was trained to fill cavities.

All employees at the clinic received annual performance reviews, with ratings ranging from unsatisfactory to outstanding on a 0 to 4 scale.

During her employment at the clinic, Abebe allegedly had a record of behavior issues, and her annual performance reviews never reached a score higher than 2.27. Her lowest score, 1.43, came in 2018, and the decline was attributed to her confrontational attitude and trouble cooperating with co-workers.

Having a score lower than 2.0 for 2018 prevented Abebe from receiving a merit-based pay raise in 2019, prompting her to seek relief from the Equal Employment Opportunity Commission.

Abebe alleged to the EEOC that she had experienced race- and national origin-based discrimination at work and that three incidents occurred before her 2018 performance review, including an incident in which a white dental hygienist allegedly left out an open needle for her to clean up. She also alleged that she experienced problems with a dentist whom she claimed had pushed and communicated rudely with multiple people, including Abebe.

Additionally, Abebe contested a protocol for checking out dental burs used for filling cavities, alleging that the only other dental hygienist who filled cavities had better access to the burs because they were kept in her office.

An EEOC investigator determined there was likely no cause for further EEOC investigation. Later that month, Abebe was placed on a performance improvement plan, although Eskenazi ultimately decided not to impose the plan.

Abebe then sued Eskenazi Health under Title VII of the Civil Rights Act and 42 U.S.C. § 1981, alleging her employer discriminated against her when it gave her low scores on her performance review, resulting in her not receiving a merit-based raise. She also alleged Eskenazi retaliated against her when it placed her on the improvement plan after she reached out to the EEOC.

The Indiana Southern District Court entered summary judgment for Eskenazi, and the 7th Circuit affirmed.

In affirming the district court, the 7th Circuit found that Abebe could not establish a prima facie case of discrimination, nor could she demonstrate that Eskenazi’s reason for the low scores on her performance review was pretextual.

“Abebe received low scores on her performance review not because she was involved in these incidents, but because she addressed them in a confrontational way. Abebe adduces no evidence that either proposed comparator was similarly disrespectful or aggressive in communicating with their colleagues or with management,” Circuit Judge Michael Kanne wrote. “… Eskenazi Health thus had a legitimate, non-discriminatory reason for Abebe’s low performance review scores — her communication was ‘confrontational and not solution-oriented.’

“… Abebe also claims that she can establish pretext because the Performance Improvement Plan her employer placed her on was ultimately withdrawn, but that does not necessarily show that Eskenazi Health had a shady reason for giving her a negative review earlier,” Kanne continued.

The 7th Circuit also found that Abebe failed to provide sufficient evidence to establish a causal connection between her contact with the EEOC and the issuance of the improvement plan.

Finally, it concluded that she could not demonstrate that issuing the plan was an adverse employment action, reiterating that just because the plan was ultimately dropped “does not necessarily shed light on Eskenazi Health’s intent in issuing or planning to issue the Plan in the first place.”

The case is Lily Abebe v. Health and Hospital Corporation of Marion County, 21-2614.

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