On June 8, 2018, the 7th Circuit affirmed an order of summary judgment on Title VII race discrimination claims, but reversed summary judgment as to hostile work environment race-based workplace harassment claims. Johnson, et al. v. Advocate Health and Hospitals Corp., No. 16-3848 (7th Cir. 6/8/2018). The plaintiffs claimed that they were treated unfairly based on their race. The district court granted the defendant's motion for summary judgment, finding that the plaintiffs failed to offer evidence necessary to support their claims. The 7th Circuit agreed with the district court on all issues except the hostile work environment claims. Despite doing away with the separate direct and indirect evidence tests and convincing mosaics, the 7th Circuit still uses the traditional McDonnell Douglas burden-shifting evidentiary framework for evaluating employment discrimination claims. Under McDonnell Douglas, a court considers whether the plaintiffs: (1) are members of a protected class; (2) performed reasonably on the job in accordance with their employer's legitimate expectations; (3) were subjected to adverse employment action despite their reasonable performance; and (4) similarly situated employees outside of the protected class were treated more favorably by the employer.
U.S. District Court, Northern District of Illinois
On April 17, 2018, a U.S. District Court judge for the Northern District of Illinois ruled that under Illinois law, a covenant not to compete is unenforceable per se if the covenant, on its face, restricts an employee from taking any position with another company that engages in the same business as the employer, without regard to whether that position is similar to the position that the employee held with the employer or otherwise competes with the employer. Medix Staffing Solutions, Inc. v. Dumrauf, 17 C 6648 (N.D.Ill 4/17/2018). The employee entered into an employment at-will, confidentiality, and non-compete agreement with the employer and subsequently executed an employee confidentiality/non-compete agreement. The agreement included a covenant not to compete that restricted the employee, for a period of eighteen (18) months following termination of employment, within a radius of 50 miles from any office of the employer where the employee performed services for the employer, from employment in any capacity with any business that either offers a product or services in actual competition with the employer, or which may be engaged directly or indirectly in the employer's business.
On April 30, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant employer in a federal lawsuit in which the plaintiff alleged that the defendant retaliated against him for exercising his rights under the Family and Medical Leave Act ("FMLA") and the Americans with Disabilities Act ("ADA"). Freelain v. Village of Oak Park et al., No. 16-4074 (7th Cir. 4/30/2018). The plaintiff, an Oak Park police officer, made an internal complaint of sexual harassment, alleging that another officer made unwelcome sexual advances toward him. After he reported the alleged sexual harassment, he began to experience migraine headaches and other medical conditions that he attributed to stress related to the alleged sexual harassment, for which he took time off work. He alleged that as a result of his medical condition and use of leave time, the defendant retaliated against him, in violation of the FMLA and ADA, by classifying his sick leave as unpaid, requiring him to undergo a psychological evaluation before returning to duty, and waiting three months before approving his request to engage in outside employment. The 7th Circuit held that the subject employment actions did not constitute protected activity and that therefore, the plaintiff's FMLA and ADA retaliation claims failed as a matter of law.
On April 26, 2018, the 7th Circuit held that the disparate impact provision of the Age Discrimination in Employment Act ("ADEA") protects both outside job applicants and current employees from employment practices that have a disparate impact on older workers. Kleber v. CareFusion Corporation, No. 17-1206 (7th Cir. 4/26/2018). The ADEA prohibits employment practices that discriminate intentionally against older workers as well as employment policies that are facially neutral but have a disparate impact on older workers. In this case, the 7th Circuit recognized a cause of action under the ADEA for disparate impact failure-to-hire, in the context of a hiring policy which limited the applicant pool for an attorney position to applicants with three to seven years (but no more than seven years) of legal experience.
On April 24, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant employer in a Family and Medical Leave Act ("FMLA") interference lawsuit on the basis that the suit was time-barred under the FMLA's two-year statute of limitations. Sampra v. United States Department of Transportation, No. 17-2621 (7th Cir. 4/24/2018). The plaintiff sued her employer alleging that it unlawfully interfered with her rights under the FMLA by reassigning her to a different position after she returned from pregnancy leave. The district court granted summary judgment for the defendant on the merits, finding that the plaintiff was offered essentially the same position upon her return from FMLA pregnancy leave. The 7th Circuit affirmed, without reaching the merits, on the different ground that the plaintiff's FMLA lawsuit was time-barred because the plaintiff failed to file her complaint within the applicable two-year statute of limitations. The three-year statute of limitations did not apply because the plaintiff failed to provide evidence that the defendant willfully violated her rights under the FMLA.
On March 8, 2018, the 7th Circuit affirmed an order of summary judgment in favor the defendant in a lawsuit in which the plaintiff alleged that his former employer unlawfully discriminated against him on the basis of his age and national origin, as well as retaliated against him for complaining about a supervisor, in violation of the Age Discrimination in Employment Act ("ADEA") and Title VII of the Civil Rights Act of 1964 ("Title VII"), by failing to promote him to various positions and ultimately demoting him. Skiba v. Illinois Central Railroad Company, No. 17-2002 (7th Cir. 3/8/2018). To survive a motion for summary judgment on a retaliation claim, a plaintiff must offer evidence of: (1) statutorily protected activity; (2) materially adverse job action; and (3) a causal connection between the two. The 7th Circuit concluded that the plaintiff did not engage in any statutorily protected activity when he complained about a supervisor's harsh management style.
On December 11, 2017, the 7th Circuit affirmed an order of summary judgment in a sex discrimination lawsuit in which the plaintiff alleged that her former employer fired her on the basis of her gender, in violation of Title VII. Milligan-Grimstad v. Morgan Stanley, et al., No. 16-4224 (7th Cir. 12/11/2017). The 7th Circuit agreed with the district court, that the defendant terminated the plaintiff on the basis of her job performance. To survive a motion for summary judgment in a Title VII employment discrimination case, a plaintiff must present evidence that would permit a reasonable jury to conclude that the plaintiff's race, ethnicity, sex, religion or other proscribed factor caused the discharge. In this case, the plaintiff failed provide a sufficient evidentiary basis for a jury to conclude that her sex influenced the decision to terminate her employment.
On October 20, 2017, a federal district court judge for the Northern District of Illinois held that a non-solicitation restrictive covenant contained in an employment contract was not unenforceable for lack of adequate consideration, even though the defendants were employed for fewer than two (2) years. Stericycle, Inc. v. Simota, et al., No. 16 C 4782 (N.D.Ill. 10/20/2017). In so holding, the court rejected the Illinois Appellate Court's ruling in Fifield v. Premier Dealer Servs., 2013 IL App (1st) 120327, which held that a non-competition or non-solicitation restrictive covenant contained in an employment at-will employment agreement is unenforceable for lack of adequate consideration when the employee was employed for fewer than two (2) years. Several other Illinois Appellate Court decisions have followed Fifield and adopted the so-called "two-year rule," but the Illinois Supreme Court has not reached the issue. Accordingly, federal court judges are not bound to follow Fifield, and instead must make a predictive judgment on how the Illinois Supreme Court would decide the issue.
On October 2, 2017, the 7th Circuit affirmed an order of summary judgment on a former employee's sexual harassment, retaliation and FMLA claims. King v. Ford Motor Company, No. 16-3391 (7th Cir. 10/2/2017). The plaintiff, who was an assembly line worker, claimed that she was sexually harassed by a supervisor. She was discharged after missing several weeks of work for medical reasons that her former employer claims she failed to properly document. In her federal lawsuit, she filed claims for sexual harassment, FMLA interference, and retaliation based on her complaints of sexual harassment and for taking FMLA leave. Since she failed to file suit within 90 days of receipt of her notice of right-to-sue letter from the EEOC, her Title VII sexual harassment claim was time-barred. Her FMLA interference and retaliation claims failed too, for substantive reasons.
On August 14, 2017, the 7th Circuit reversed the district court's order of summary judgment in favor of the defendant employer in a federal lawsuit filed by a Chicago Public High School maintenance supervisor, in which he alleged that he was given an unsatisfactory rating that resulted in the loss of his employment, because of his age and in retaliation for his prior age discrimination lawsuit against the Board, of which he had informed his supervisor before she gave him the negative rating. Owens v. Chicago Board of Education, No. 16-3607 (7th Cir. 8/14/2017) The plaintiff alleged that he informed his supervisor that he had an age discrimination lawsuit pending against the Board, and that she then replied 'do you think you're going to keep your job working for the Chicago Public Schools and you're filing a lawsuit?'.