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Stepp v. Covance Central Laboratory Services, Inc.

United States Court of Appeals, Seventh Circuit

July 26, 2019

Damon Stepp, Plaintiff-Appellant,
Covance Central Laboratory Services, Inc., Defendant-Appellee.

          Argued July 10, 2019

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division No. l:17-cv-00644-SEB-DLP - Sarah Evans Barker, Judge.

          Before Easterbrook, Barrett, and Brennan, Circuit Judges.

          PER CURIAM.

         Damon Stepp, a former temporary employee at Covance Central Laboratory Services, sued his former employer for retaliating against him in violation of 42 U.S.C. § 2000e-3. He contests the district court's entry of summary judgment for Covance, arguing that he submitted evidence sufficient to persuade a jury that Covance refused to hire him permanently in retaliation for his earlier complaints about discrimination. Because a reasonable jury could conclude that Covance refused to promote Stepp to permanent status because of these complaints, we vacate the judgment and remand.


         Covance, a manufacturer of medical test kits, hired Stepp in December 2015 as a temporary assistant in its kit-production department. Covance hires both "permanent" and "temporary" employees. While it generally hires temporary employees for a one-year term, it often converts positive performers to permanent status within four to nine months of their start date. Stepp received positive performance reviews in his first nine months, but Covance never made him permanent. By contrast, Covance made two of Stepp's temporary coworkers, hired three weeks before he was, permanent around their nine-month anniversary.

         During his tenure as a temporary worker, Stepp, an African-American male, complained about the mistreatment of employees in the kit-production department. Within his first three months of work, he told Covance that David Casteel, his team leader, treated female and white employees better than male and African-American employees. Casteel supervised production by assigning assistants to workstations and directing their training. Stepp confronted Casteel directly, saying that he might formally charge him with discrimination. A manager investigated Stepp's complaints but found them baseless. Stepp then filed two formal charges of discrimination with the Equal Employment Opportunity Commission in July and September 2016.

         The same month that Stepp filed his second charge-September-was his nine-month anniversary. Two months later, Casteel complained to Linda Ball, a supervisor, that Stepp often stared at him, shook his head, smirked, and said "uh oh." Ball discussed this complaint with Stepp, who explained that Casteel had misinterpreted Stepp's body language. Shortly thereafter, with Stepp still in temporary status, Covance began a freeze on new hires in the kit-production department. Stepp asked Ball if Covance did not promote him to permanent status before the freeze because Casteel had complained to her about him; she responded "yes."

         Stepp's one-year term as a temporary worker ended soon after. Gary Grubb, a human resources partner, planned to give a 90-day extension to Stepp and other temporary workers whose terms ended near the December holidays. But Grubb later reported that Covance advised him that a 90-day extension was too long, so he cut short the extensions of the four temporary workers, including Stepp, who had received them. Stepp's term ended five weeks short of 90 days, in early February 2017.

         Proceeding pro se, Stepp sued Covance for race and sex discrimination and retaliation in violation of 42 U.S.C. §§ 2000e-2, 2000e-3, and 1981. Stepp presents only his retaliation claim on appeal. In the district court, Covance argued that it did not offer Stepp permanent employment because of the hiring freeze. But the court did not address Stepp's failure-to-promote retaliation claim; it ruled that Stepp had not alleged the claim in his complaint and that his opposition to summary judgment was too late to raise it.


         On appeal, Stepp-now represented by counsel-contends that he adequately preserved and supported his two retaliation claims: First, he presents his "failure-to-promote" claim-that Covance did not hire him permanently in retaliation for his discrimination complaints. Second, he advances a "90-day" claim-that Covance also cut short his 90-day extension in retaliation for those complaints.

         We begin with the failure-to-promote claim. Stepp contends that the district court erred by failing to recognize that he adequately pleaded a failure to-promote claim. He points to his latest amended complaint, in which he alleges that Covance "discriminated against [him] by terminating his employment and refusing to hire him on as a permanent full-time employee because of his race (African-American), gender (Male) and because he filed Retaliation and Harassment complaints against his team leader, David Casteel." Covance counters that this sentence, buried in a 69-paragraph complaint, did not adequately notify it of a failure-to-promote claim. Moreover, it says, Stepp waived the claim at ...

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