7th Circuit rejects sexual orientation claim of DOC worker fired for harassment

After working for the Indiana Department of Correction for more than 20 years, Robbie Marshall was terminated from his position after a co-worker brought sexual harassment allegations against him.

A subordinate under Marshall’s direct supervision accused Marshall of sexually harassing him twice in 2015, and an investigation was initiated. Marshall was ultimately terminated from his position and subsequently brought claims against the DOC.

Additionally, at a meeting before his termination, someone stated that the DOC should be prepared for Marshall to file a complaint with the EEOC that he was fired because of his sexual orientation.

Marshall alleged claims of sexual-orientation discrimination and retaliation in the U.S. District Court for the Southern District of Indiana. The district judge granted summary judgment to the DOC on the claims, prompting Marshall’s appeal.

But the 7th Circuit Court of Appeals affirmed in Robbie Marshall v. Indiana Department of Correction, 19-3270, first finding that Marshall failed to show a similarly situated person outside the protected class was treated better than he was. It therefore concluded Marshall failed to establish a prima facie case of discrimination to shift the burden.

“Marshall must lose his discrimination claim because he cannot show the DOC terminated him because of his sexual orientation. He has no smoking gun. He has no mass of circumstantial evidence pointing to discrimination. He cannot make out a prima facie case. And even if he could, he cannot show pretext. Considering all the evidence … , we conclude Marshall cannot show sexual-orientation discrimination,” Circuit Judge Daniel Manion wrote for the appellate court.

Marshall’s retaliation claim fared no better. Addressing the comment that he would file with the EEOC, the 7th Circuit concluded that Marshall’s claim “borders on preposterous” that he would have the 7th Circuit believe the termination was retaliation for the anticipated complaint.

“Title VII generally does not hold an employer accountable merely for discussing the potential ramifications of the action it already decided to take. Such a discussion generally does not transform a prior decision into anticipatory retaliation against future protected action, even when the actual termination has not yet occurred. Marshall has shown no reason to hold the DOC liable merely for discussing the potential consequences of its decision to terminate him,” the 7th Circuit wrote.

It therefore found Marshall could not show any statutorily protected activity was the “but for” cause of the adverse employment action, and as such, his retaliation claim must fail.

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