U.S. Court of Appeals, Seventh Circuit

7th Circuit Reverses Summary Judgment for Employer on Title VII Retaliation Claim

On October 15, 2018, the 7th Circuit reversed an order of summary judgment that the district court had entered in favor of the defendant-employer in a Title VII lawsuit in which the plaintiff alleged that her former employer unlawfully terminated her employment in retaliation for her protected activity of filing an internal complaint of sexual harassment with human resources against a manager who had sexually harassed another employee.  Donley v. Stryker Sales Corporation, No. 17-1195 (7th Cir. 10/15/2018).  The 7th Circuit held that suspicious timing and shifting, inconsistent explanations from the employer raised genuine issues of material fact about the reason for the termination sufficient to preclude summary judgment.

7th Circuit Affirms Summary Judgment on Title VII Severance Pay Sex Discrimination Claim

On October 12, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant-employer in a Title VII gender discrimination lawsuit in which the plaintiff-employee alleged that she did not get the same chance to resign her employment with severance pay that three male employees got.  Barbera v. Pearson Education, Inc., No. 18-1085 (7th Cir. 10/12/2018).  The district court granted summary judgment because the proposed comparator male employees were not similarly situated to the plaintiff.  They sought resignation with severance pay before circumstances with the employer materially changed, but the plaintiff sought resignation with severance pay after circumstances changed.  Title VII of the Civil Rights Act of 1964 ("Title VII") makes it unlawful for an employer to fail or refuse to hire or to discharge any employee, or otherwise discriminate against any employee with respect to her compensation, terms, conditions, or privileges of employment, because of her race, color, religion, sex, or national origin.  Gender discrimination in connection with disparate severance pay is a cognizable claim under Title VII.

7th Circuit Explains Joint Employer Doctrine in Sexual Harassment, Pregnancy Discrimination and Retaliation Case Against Multiple Entities

On September 11, 2018, the 7th Circuit issued an opinion in which it explained the joint employer doctrine and reversed the district court's decision on summary judgment that an employer management services company was not a joint employer of the plaintiff-employee in her sexual harassment, retaliation, and pregnancy discrimination lawsuit against multiple separate companies.  Frey v. Hotel Coleman, et al., No.17-2267 (7th Cir. 9/11/2018).  This case presented issues regarding the employer-employee relationship that arise in the increasingly common scenario in which one employer hires another entity to manage the day-to-day operations of an enterprise.  One entity provides the paycheck but another entity manages the tasks typically associated with an employer, such as hiring, firing, training, supervising, and evaluating employees.  In this case, a hotel hired a management company to handle its daily operations.  Under the hotel management agreement, the management company was responsible for hiring, supervising, directing, and discharging employees, and determining the compensation, benefits, and terms and conditions of their employment. The hotel agreed that it would not give direct instructions to any employee of the hotel or the management company that may interfere, undermine, conflict with or affect the authority and chain of command established by the management company.  The plaintiff and other staff members who worked at the hotel were on the hotel's payroll, and the management agreement stated that all personnel are in the employ of the hotel.

7th Circuit Affirms Jury Verdict for Plaintiff in Sexual Harassment Lawsuit Based on Alleged Harassment of Employee by Store Customer

On September 10, 2018, the 7th Circuit affirmed a jury verdict in favor of a former employee of a big box company, who alleged and testified that she was harassed by a store customer.  Equal Employment Opportunity Commission v. Costco Wholesale Corporation, Nos. 17-2432 & 17-2454 (7th Cir. 9/10/2018).  The employee testified at trial that she was stalked by a store customer for over a year.  Things got so bad at the end that she secured a no-contact order from an Illinois state court.  She took unpaid medical leave due to emotional trauma from the experience, and when she did not return to work from medical leave, the company terminated her employment.  The Equal Employment Opportunity Commission ("EEOC") filed a lawsuit against the company on behalf of the employee, alleging that the company had subjected her to a hostile work environment by tolerating the customer's harassment.  The 7th Circuit held that a reasonable jury could conclude that the customer's conduct was severe or pervasive enough to render the employee's work environment hostile.

7th Circuit Affirms Summary Judgment on Title VII and Section 1981 Race Discrimination Claims

On September 4, 2018, the 7th Circuit affirmed an order of summary judgment in a lawsuit filed by an assistant professor against a state university, in which the professor alleged that the University denied him tenure because of his race, African-American, in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII") and Section 1981 of the Civil Rights Act of 1866 ("Section 1981").  Haynes v. Indiana University, No. 17-2890 (7th Cir. 9/4/2018).  The plaintiff was employed as an assistant professor in the Department of Education at Indiana University.  At the conclusion of his six-year probationary employment contract, he was denied tenure.  The 7th Circuit held that the record does not support an inference that the University denied tenure because of the plaintiff's race.

7th Circuit Affirms 12(b)(6) Dismissal of FLSA Retaliation Claim

On August 27, 2018, the 7th Circuit affirmed the dismissal of a retaliation claim under the Fair Labor Standards Act ("FLSA") for legally insufficient pleading of protected activity.  Sloan v. American Brain Tumor Association, No. 18-1103 (7th Cir. 8/27/2018).  The plaintiff sued her former employer for unlawful retaliation in violation of the FLSA.  The district court dismissed the complaint.  The 7th Circuit held that the plaintiff's allegations, even if generously construed, do not remotely support a claim that the defendant retaliated against her for asserting rights protected by the FLSA.  Under federal pleading standards, a complaint must state a claim to relief that is plausible on its face.  A claim has facial plausibility when the plaintiff pleads facts that allow a court to draw a reasonable inference that the defendant is liable for the misconduct alleged.

7th Circuit Reverses Summary Judgment in Lawsuit under the Americans with Disabilities Act

On August 24, 2018, the 7th Circuit reversed an order of summary judgment in favor of an employer-defendant in a lawsuit filed by an employee who claimed that the employer discriminated against her because she had a disability, failed to accommodate her disability, and retaliated against her for exercising her right to request reasonable accommodations, in violation of the Americans with Disabilities Act ("ADA").  Rowlands v. United Parcel Service, No. 17-3281 (7th Cir. 8/24/2018).  The district court granted the employer's motion for summary judgment on all of the employee's ADA claims, finding that she did not have a disability within the meaning of the ADA, had waived her failure to accommodate claim, and failed to establish a prima facie case of ADA retaliation.  The employee appealed her failure to accommodate and retaliation claims.  The 7th Circuit reversed the district court, finding that there are genuine issues of fact that are material to the employee's failure to accommodate and retaliation claims, which were not waived.

7th Circuit Affirms Summary Judgment on Disparate Impact Age Discrimination Lawsuit

On August 20, 2018, the 7th Circuit affirmed an order of summary judgment in favor of the defendant-employer in a disparate impact age discrimination lawsuit filed under the Age Discrimination in Employment Act ("ADEA").  O'Brien, et al. v. Caterpillar, Inc., No. 17-2956 (7th Cir. 8/20/2018).  This age discrimination lawsuit was filed by a group of retirement-eligible employees who refused to retire under a "liquidation plan," through which employees who agreed to retire would receive a pro rata share of funds that resulted from the company's elimination of certain unemployment benefits for laid-off employees. The plaintiffs alleged that the liquidation plan violates the ADEA because it has a disparate impact on older employees.  The 7th Circuit held that although the liquidation plan has a disparate impact on older workers, it was justified by several reasonable factors other than age.

7th Circuit Affirms Summary Judgment on Americans with Disabilities Act Lawsuit

On August 16, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant-employer in a lawsuit filed under the Americans with Disabilities Act ("ADA"), in which the plaintiff alleged that the defendant discriminated against him, failed to provide him with a reasonable accommodation, and retaliated against him, in violation of the ADA.  Koty v. DuPage County, Illinois, No. 17-3159 (7th Cir. 8/16/2018).  The plaintiff, a deputy in the DuPage County Sheriff's Department, requested a different model of squad car with more legroom to accommodate a hip condition.  After the Department denied his request, the plaintiff filed charges of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC"), alleging that the Department had discriminated against him in violation of the ADA.  Not long after that, the Department reassigned the plaintiff to courthouse duty, for which he would not need to drive a squad car.  The plaintiff filed a lawsuit against his employer in federal court alleging that the Department violated the ADA when it denied his request for an SUV, and unlawfully retaliated against him for filing his EEOC charge of employment discrimination by re-assigning him and taking other various employment actions against him.

7th Circuit Affirms Summary Judgment on Title VII Retaliation Claim Against the Department of Homeland Security

On August 15, 2018, the 7th Circuit affirmed an order of summary judgment in favor of the U.S. Department of Homeland Security in a lawsuit in which a FEMA Disaster Assistance employee alleged that the Department retaliated against her for filing a discrimination grievance by not reimbursing her for the time and expenses that she incurred when she testified at the hearing of her earlier discrimination charge.  Moreland v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security, No. 17-3113 (7th Cir. 8/15/2018).  The 7th Circuit affirmed the district court's judgment on the grounds that the plaintiff failed to provide evidence that she suffered a materially adverse employment action, and did not rebut the agency's legitimate, non-retaliatory reason for not reimbursing her.

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