The U.S. District Court for the Northern District of Illinois granted a company summary judgment on an “associational retaliation” claim brought under Title VII by a temporary worker claiming the company ended her assignments because her (late) husband, who was an employee of the company, complained of discrimination.  Wilcox v. The Allstate Corp., No. 11-cv-814 (N.D. Ill. Dec. 17, 2012).   This case shows that associational discrimination claims are continuing to be pursued following U.S. Supreme Court’s decision in Thompson v. North American Stainless, No. 09-cv-291 (Jan. 24, 2011), but are susceptible to dismissal where:  (i) the plaintiff is not an employee of the defendant company and the defendant did not have a hand in the challenged adverse action; (ii) there is doubt as to whether the person with whom the plaintiff was affiliated actually engaged in protected activity; and (iii) the causal nexus between the affiliate’s protected activity and plaintiff’s adverse action is tenuous.  Proskauer’s Steven J. Pearlman served as lead counsel for the defense. 


Plaintiff Rita Wilcox was employed by The Allstate Corporation (the Company) from 1998 to 2003, and then was employed by Pilot Catastrophe Services (Pilot), a third-party contractor that provided temporary staff to assist in the Company’s response to catastrophic events (among other things), from approximately 2006 to 2009.  Plaintiff’s late husband, Robert Wilcox, was employed by the Company from approximately 1973 until his death in 2009.  In 2004, Mr. Wilcox complained to his then-supervisor that another employee was selected for a promotion to a bonus-eligible position, while Mr. Wilcox’s job title had been changed to a non-bonus-eligible position.  Mr. Wilcox requested “equal treatment” and a restoration of his bonus eligibility.  But he did not expressly mention discrimination based on any protected characteristic.  In 2008, Mr. Wilcox complained to his then-supervisor that he perceived certain queries related to scheduling, timekeeping, and expense accounts as “questioning [his] integrity” and creating “a hostile and unacceptable work environment.”  Again, Mr. Wilcox’s complaint did not expressly reference protected characteristics.

Pilot hired Plaintiff in 2006 (three years after her employment with the Company ended) and assigned her to provide services for a division of the Company.  She was supervised by Pilot managers, her requests for time-off were directed to Pilot, and Pilot provided her both her daily pay and a per diem payout.  In May 2009, the Company closed the office at which both Mr. Wilcox and Plaintiff worked.  It reduced the total number of Pilot employees handling its business and transferred their duties to permanent Company employees.  Pilot decided to release Plaintiff from her assignment at the Company on July 15, 2009.  Plaintiff could not establish that any Company employee had a hand in the decision to terminate her assignment.

The Court’s Ruling

Plaintiff alleged that the Company terminated her assignment through Pilot in retaliation for her (late) husband’s complaints of discrimination.  Although the court found that a claim of associational retaliation was actionable based on the U.S. Supreme Court’s decision in Thompson (above), it granted the Company summary judgment for the following reasons.

First, the court recognized that third-parties (the Company, in this instance) may be liable for retaliation in certain circumstances (e.g., if the third-party recommend that the plaintiff’s employer terminate her employment), but that liability against the Company was not warranted under the facts of this case.  Plaintiff’s claim failed because she could not establish that the Company was her employer or had a joint employer relationship with Pilot.  Indeed, Plaintiff could not establish that the Company directed or controlled her assignment, and the evidentiary record showed that Pilot did so unilaterally. 

Second, Plaintiff could not establish a prima facie case of retaliation under the direct or indirect methods of proof because:  (i) her late husband’s complaints were not legally protected activities; and (ii) there was no causal connection between the complaints and her termination.  Most fundamentally, protected activity must have the effect of putting the employer “on notice” of potentially biased treatment prohibited by law.  Mr. Wilcox’s vague complaints, however, did not meet this requirement, as he did not make the Company aware that his age “was an issue” with respect to his treatment.  A vague complaint that someone outside of his protected class was treated better than the complaining party, without linking such treatment to membership in the protected class, is insufficient to place the employer “on notice” and establish protected activity.

Further, Plaintiff could not establish a causal connection between Mr. Wilcox’s allegedly protected activity and the termination of her assignment to the Company because she presented no evidence:  (i) that the Company made or influenced the decision to terminate her employment; (ii) linking Mr. Wilcox’s 2004 complaint to the termination of her assignment five years later, as a temporal connection was lacking and no one aware of Mr. Wilcox’ complaint influenced the termination decision; or (iii) linking Mr. Wilcox’s 2008 complaint to the termination nearly a year later, as the temporal connection alone was insufficient to show causation and, again, none of the decision-makers related to the termination were aware of the complaint. 


Although this decision is a win for employers in that the Company was not found liable for alleged retaliation against a non-employee based on her association with an employee who allegedly engaged in protected activity, it is important to remember that a company may be liable for retaliation under Title VII if it creates a joint employer relationship with a contractor and may be subject to risks where it significantly influences or interferes with the contractor’s employment decisions.  Employers thus would be well served by respecting the formality of the contractor relationship, which means leaving employment decisions vis-à-vis the assigned workers to the contracting company and formalizing the relationship through a written agreement.  Where practicable, there also is a benefit to having a supervisor from the contractor on the premises to which the temporary worker is assigned.  This decision also serves as a reminder that associational retaliation claims are actionable in some circumstances and companies should keep this in mind when implementing training and crafting anti-retaliation policies.