U.S. Court of Appeals, Seventh Circuit

7th Circuit Affirms Summary Judgment on Title VII Retaliation Claim

On August 14, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant-employer in a Title VII retaliation lawsuit filed by a Cook County correctional officer, who alleged that two County employees subjected her to unlawful racial and sexual harassment, and that division supervisors unlawfully retaliated against her for filing grievances by reassigning her to work alongside one of the alleged harassers.  Emerson v. Dart, Sheriff of Cook County, Illinois, et al., No. 17-2614 (7th Cir. 8/14/2018).  During the litigation, she posted a threat on a Facebook group that she would sue anyone who testified against her, for which she was sanctioned.

7th Circuit Upholds Jury Verdict for Plaintiff-Employee in Same-Sex Sexual Harassment Lawsuit

On August 2, 2018, the 7th Circuit affirmed a jury verdict in favor of an employee and against an employer in a same-sex sexual harassment and employment discrimination lawsuit.  Smith v. Rosebud Farm, Inc., No. 17-2626 (7th Cir. 8/2/2018).  The plaintiff worked as a butcher in a local grocery store on the south side of Chicago.  After enduring several years of ongoing sexual and racial harassment from his male coworkers and supervisor, he filed a lawsuit against his employer for violations of Title VII of the Civil Rights of 1964, as amended ("Title VII"), Section 1981, and the Illinois Gender Violence Act.  The jury returned a verdict in favor of the employee.  On appeal, the 7th Circuit held that the evidence supported the inference that the plaintiff's coworkers harassed him because he was male (only male and not female employees were harassed at the grocery store) and, therefore, because male employees were treated differently from female employees, a reasonable jury could conclude that the plaintiff was harassed because of his sex (which is an essential element of a Title VII sexual harassment claim).

7th Circuit Affirms Summary Judgment on Employment Discrimination and Retaliation Claims

On July 30, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant employer in an age and sex discrimination and retaliation lawsuit under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act.  Hamer v. Neighborhood Housing Services of Chicago, et al., No. 15-3764 (7th Cir. 7/30/2018).  The plaintiff was passed over for a promotion in favor of a younger, male colleague.  Believing that this adverse employment action constituted age and sex discrimination, she met with the Director of Human Resources, and informed her of her intention to file a charge of discrimination with the United States Equal Employment Opportunity Commission.  Subsequent communications ensued between various managerial personnel regarding the non-promotion and related personnel issues in connection with the plaintiff, then employee, who was subsequently given an ultimatum to accept a demotion or resign her employment.  She resigned, and filed an EEOC charge, followed by a federal lawsuit.

7th Circuit Reverses Summary Judgment on Workplace Harassment Claim

On July 2, 2018, the 7th Circuit reversed an order of summary judgment on a hostile work environment claim in an lawsuit that involved multiple claims of race-based discrimination, harassment and retaliation.  Robinson, et al. v. Perales, et al., Nos. 16-2291 & 16-3390 (7th Cir. 7/2/2018).  To succeed on a claim for discrimination based on a hostile work environment, a plaintiff must demonstrate that: (1) she was subjected to unwelcome harassment; (2) the harassment was based on a protected category; (3) the harassment was severe or pervasive to a degree that altered the conditions of employment and created a hostile or abusive work environment; and (4) there is a basis for employer liability.  In determining whether the conduct is severe or pervasive enough to alter the conditions of employment, courts consider the severity of the alleged conduct, its frequency, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee's work performance.

7th Circuit Affirms Summary Judgment on Title VII Religious Discrimination and Retaliation Claims

On June 27, 2018, the 7th Circuit affirmed an order of summary judgment in favor of the defendant employer in a Title VII lawsuit in which the plaintiff former employee alleged that he was discriminated against and terminated on account of his religion and in retaliation for filing an EEOC charge.  Khowaja v. Jefferson B. Sessions III, Attorney General of the United States, No. 18-1155 (7th Cir. 6/27/2018).  The plaintiff alleged that he was unlawfully discriminated against and removed from his position as an FBI agent because he is a Muslim, in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), that he was subjected to a hostile work environment and disparate treatment, and that he was unlawfully terminated for beginning the EEOC process.  On appeal, he only challenged the district court's ruling on his first claim of religious discrimination and disparate treatment.

7th Circuit Affirms Summary Judgment on Claim for Breach of Employee Compensation Plan but Reverses Summary Judgment on Illinois Wage Claim

On June 25, 2018, the 7th Circuit affirmed the district court's grant of summary judgment on a claim for breach of an employment compensation plan, but reversed the district court's grant of summary judgment on the plaintiff's wage claim under the Illinois Wage Payment and Collection Act.  Sutula-Johnson v. Office Depot, Inc., No. 17-1855 (7th Cir. 6/25/2018).  The plaintiff sued her former employer alleging that its changes to her employee compensation plan for selling office furniture breached its employment contract with her and violated the Illinois Wage Payment and Collection Act (the "Act").  In her claim for breach of employment contract, the plaintiff contended that the defendant did not effectively amend its employment contract with her until she signed a written acknowledgement form on a certain date.  She argued that prior thereto, any amendment to her employment contract was without consideration; and that she did not accept the new terms until she signed them.  Thus, it was the plaintiff's position that a new contract was not formed until she signed the acknowledgment, and that the defendant breached her previous contract by failing to comply with the old compensation plan through the date she signed the acknowledgement.  She also argued that the defendant breached her employment contract by retroactively reducing her commissions.

7th Circuit Affirms Summary Judgment on Section 1981 Employment Discrimination and Retaliation Claims

On June 19, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant employer in a federal lawsuit in which the plaintiff, former employee alleged that the defendant laid him off and failed to rehire him because of his race and in retaliation for his EEOC charge.  Oliver v. Joint Logistics Managers, Inc., No. 17-1633 (7th Cir. 6/19/2018).  The plaintiff sued his former employer under Section 1981 of the Civil Rights Act of 1866, alleging that it discriminated against him when it laid him off and when it hired another applicant to fill an open position.  He also alleged that the employer retaliated against him because he filed a charge of discrimination with the EEOC.  The 7th Circuit concluded that the plaintiff failed to present essential evidence in support of each of his claims.

7th Circuit Affirms Summary Judgment on Retaliatory Harassment Claim

On June 15, 2018, the 7th Circuit affirmed an order of the district court which entered summary judgment in favor of a defendant employer in a Title VII lawsuit in which the plaintiff employee alleged that she was subjected to unlawful retaliation for filing a prior employment discrimination lawsuit. Flanagan v. Office of the Chief Judge of the Circuit Court of Cook County, Illinois, No. 16-1927 (7th Cir. 6/15/2018).  The plaintiff alleged that two coworkers threatened her life because she had previously sued their shared employer for employment discrimination and retaliation.  She filed a new lawsuit under Title VII claiming illegal retaliation based on an alleged hostile work environment in connection with the alleged threats.  The 7th Circuit ruled that the alleged threats were too oblique for a jury to conclude that the plaintiff was subjected to severe or pervasive harassment.

7th Circuit Reverses Attorneys' Fees Award against the EEOC for Prevailing Title VII Defendant

On June 8, 2018, the 7th Circuit reversed an order of the district court which had awarded the prevailing defendant, CVS Pharmacy, Inc. ("CVS") its attorneys' fees against the United States Equal Employment Opportunity Commission ("EEOC"), in the wake of the EEOC's unsuccessful attempt to challenge the validity and enforceability of CVS's standard employee severance agreement and release.  Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., No. 17-1828 (7th Cir. 6/8/2018).  The EEOC filed a complaint against CVS alleging that CVS was using a severance agreement that chilled its employees' exercise of their rights under Title VII of the Civil Rights Act of 1964, as amended ("Title VII").  The EEOC contended that CVS's use of the severance agreement was a pattern or practice of resistance to the rights protected by Title VII.  The district court ruled against the EEOC on this issue and the 7th Circuit affirmed.  Subsequently, the district court awarded CVS $307,902.30 in attorneys' fees against the EEOC.

7th Circuit Affirms Summary Judgment on Title VII Race Discrimination Claims but Reverses Summary Judgment on Workplace Harassment Claims

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.

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