Appeals court finds Findorff didn’t retaliate against operator who alleged sex discrimination

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An appeals court has found that officials at J.H. Findorff hadn’t in fact been retaliating against an equipment operator when it refused to hire her after she had complained about sex discrimination.

A three-judge panel of the 7th Circuit Court of Appeals dismissed on Wednesday contentions that the general contractor was committing an act of retaliation when it refused to hire the female equipment operator following her filing of a discrimination complaint with the Equal Employment Opportunity Commission. Debra Eaton, an equipment operator, argued that that complaint lay at the root of Findorff’s decision to refuse twice to hire her.

Michael Gentry, a lawyer for Findorff, said the appeals court found that the Findorff manager charged with deciding if Eaton should be hired was unaware of the complaint and, for that reason, couldn’t have retaliated against her. That ruling came after a federal district court judge also sided with Findorff in the case.

“We think, at the end of the day, the right decision was made,” Gentry said. “I think the principle is the idea of retaliation is not a feasible idea without the supposed retaliator even knowing about the underlying protected activity.”

An attorney for Eaton did not return a message seeking comment by press time Friday.

The dispute between Eaton and Findorff dates to the time when she was doing apprentice work for the company on the Moderne high-rise in downtown Milwaukee in 2011. After her first day on the job operating a telehandler, she was let go by a Findorff manager who thought she hadn’t been operating the equipment safely.

Eaton was a member of the International Union of Operating Engineers Local 139, which filed a grievance after her firing. To resolve the dispute, Findorff agreed to hire Eaton as soon as a position came open for a skip-hoist operator on the Moderne project.

Findorff hired Eaton for that work later the same year. The job lasted until early 2012, when the contractor carried out a round of rotating layoffs after eliminating the night shift on the Moderne project.

Eaton saw the loss of her job as evidence of sex discrimination and filed a complaint, which was later dropped after she failed to pursue it.

Five years later, Eaton again sought a position at the contractor. But a Findorff manager deemed her previous work “subpar.” Not long after being passed over for a position as a skip-hoist operator, she filed another EEOC complaint in April 2018, obtaining a letter giving her the right to sue. Local 139 was not a party to Eaton’s lawsuit against Findorff.

Eaton brought a federal lawsuit alleging Findorff had discriminated against her on the basis of sex when it refused to hire her. She also argued the contractor had retaliated against her for previously complaining of sex discrimination. A federal judge, in April 2020, however, found Eaton had waived her initial sex-discrimination charge, and that she’d failed to produce sufficient evidence that the company had retaliated against her.

The appeals court agreed with the district court’s ruling, finding Eaton hadn’t provided evidence that Findorff officials knew of her sex-discrimination charge when they refused to hire her.

“Findorff produced undisputed evidence that … the decision-makers who determined that Eaton would not be hired again, did not know that her 2012 complaint was based on discrimination,” the court wrote in its decision. Follow @natebeck9