The U.S. District Court for the Northern District of Illinois recently ruled that a retaliation claim survived summary judgment because of the “convincing mosaic” of evidence of retaliation the Plaintiff presented, particularly the employer’s purportedly shifting explanation regarding its reason for terminating her employment.  Wessman v. DDB Chicago Inc., No. 12-cv-6712 (N.D. Ill. Oct. 29, 2013).

Plaintiff Audrey Wessman (“Plaintiff”) was employed by DDB Chicago Inc. (the “Company”), an advertising agency, intermittently from 1997 to 2011.  In late March 2011, Plaintiff was assigned as an Account Director for a grocery store chain.  In early July 2011, the Company terminated Plaintiff’s employment.  Plaintiff then filed suit, claiming that her termination amounted to retaliation resulting from her complaints that a Company executive made sexual statements about a Company colleague to her.

The Court denied the Company’s motion for summary judgment, concluding there was a genuine issue of material fact regarding the reason the Company’s terminated Plaintiff’s employment.  According to the Court, during the course of the EEOC’s investigation into Plaintiff’s charge of discrimination, as well as the litigation of her claims, the Company offered various—and at times, inconsistent—explanations for its actions.  In light of these conflicting explanations, some of which were contradicted by the evidence, the Court concluded that the Company’s proffered explanations may not be credible.  For example, the Company stated that it did not offer Plaintiff a position on another team because she was “divisive” and there were no available openings on other teams.  Yet, the Court concluded that it could draw a reasonable inference in Plaintiff’s favor that there was an opening on another account team during the relevant time period.  In addition, the Court questioned the credibility of the Company’s explanation regarding the dearth of open positions if Plaintiff’s divisiveness “had been the principal cause for concern.”  The Court also noted that the timing of Plaintiff’s termination was “suspicious” when viewing the facts in the light most favorable to her because Plaintiff was terminated approximately three weeks after her final complaint.

This decision underscores the importance of demonstrating a consistent basis for termination, and is somewhat helpful to litigants in Illinois who are still trying to understand the contours of “convincing mosaic of evidence” in the employment retaliation context.

Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Restrictive Covenant & Trade Secret, and Whistleblower

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Restrictive Covenant & Trade Secret, and Whistleblower Practice. Steven’s national practice focuses on defending companies in federal and state courts and in arbitration fora against the full spectrum of employment-related claims, including claims of executives; restrictive covenant violations; employee raiding; theft of trade secrets; whistleblower retaliation under the Sarbanes-Oxley Act, the Dodd-Frank Act and similar state laws; and wage-and-hour violations, including class, collective and PAGA actions.

Steven has successfully handled trials in multiple jurisdictions; prevailed in seeking and defending against applications for temporary restraining orders and preliminary injunctions; defended one of the largest Illinois-only class actions in the history of the federal courts in Illinois (over 90k putative class members); and prevailed following his oral arguments before federal and state appellate courts. He brings his litigation experience (beginning in 1998) to bear in counseling clients to minimize risk and avoid or prepare for success in litigation.

Investigations. Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has the unusual experience of testifying in federal court in connection with investigations. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Thought Leadership and Accolades. Steven was named Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers. Chambers has reported:

  • Steven is “one of the best in the country and has a lot of experience”;
  • Steven is as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field”;
  • He is thoughtful, attentive and demonstrates an acute understanding of matters top of mind for business-minded general counsel; and
  • “He is someone who can navigate the twists and turns of litigation without difficulty.”

Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a ”Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a U.S. Library of Congress Burton Award Winner for “Distinguished Legal Writing.”

Steven was appointed to Law360’s Employment Editorial Advisory Board and selected as a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is often quoted in leading publications such as The Wall Street Journal. The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal.

In 2024, Steven received the Excellence in Pro Bono Service Award from the United States District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association.