A federal judge in Chicago recently dismissed the EEOC's lawsuit against CVS. The EEOC had alleged that CVS's standard severance agreement is unenforceable under Title VII. The EEOC's attempt to invalidate CVS's severance agreement was closely watched by employment lawyers. That's because CVS's severance agreement is typical of severance agreements used by many other employers. If customary terms of separation agreements, such as a general release of claims, confidentiality clause, and covenant to not sue, were declared unenforceable, employers would have less incentive to settle employment law claims. Why pay an employee a substantial amount of money to settle an employment law claim without getting a general release in exchange? This is the dilemma that employment attorneys would have faced when trying to resolve employment law claims, if the EEOC had succeeded.
Title VII (Title VII of the Civil Rights Act of 1964, as amended)
On September 9, 2014, the 7th Circuit affirmed summary judgment on Title VII race discrimination and retaliation claims. Moultrie v. Penn Aluminum International, No. 13-2206 (7th Cir., 9/9/2014). The 7th Circuit found that there was insufficient evidence to support the plaintiff's claims that he was demoted because of his race and in retaliation for complaining about discrimination. In order to establish a claim for employment discrimination, an employee must demonstrate that: (1) he is a member of a protected class; (2) his job performance met his employer's reasonable expectations; (3) an adverse job action was taken against him; and (4) similarly-situated employees outside of his protected class were treated more favorably. If the employee meets these elements, the employer has the opportunity to produce a legitimate, non-discriminatory reason for the adverse job action. This shifts the burden of proof to the employee to show that the employer's proffered reason is pretext for discrimination. In Moultrie, the plaintiff failed to establish that his job performance met his employer's reasonable expectations. He had been written up for multiple performance problems and admitted to dozing off while driving a fork-lift truck. He also failed to identify a similarly-situated employee outside of his protected class who was treated more favorably. The one employee that the plaintiff identified had also been terminated and, therefore, was not treated more favorably. Because the plaintiff failed to meet his initial burden of proof, pretext analysis was unnecessary.
On September 9, 2014, the 7th Circuit affirmed summary judgment on sexual harassment, racial harassment, and retaliation claims. Muhammad v. Caterpillar, Inc., No. 12-1723 (7th Cir., 9/9/2014). The plaintiff was subjected to derogatory remarks about his race and sexual orientation that were made made by three co-workers. Each time he reported the remarks to management, the company addressed the issue, and the co-workers did not make any more remarks. Other derogatory statements about the plaintiff's race and sexual orientation were written on the bathroom walls. Every time the plaintiff reported the bathroom graffiti, the company painted over it (3 times). After the plaintiff reported the remarks and graffiti, he was suspended for violation of a workplace rule and insubordination. The 7th Circuit held that the plaintiff's harassment claims failed because the company promptly addressed and stopped the harassment. The 7th Circuit rejected the plaintiff's argument, that the company's failure to discipline all of the co-workers supported his harassment claims. An employer's obligation under Title VII is to prevent harassment, not discipline the harassers.
On August 7, 2014, the 7th Circuit reversed summary judgment on Title VII and FMLA retaliation claims. Malin v. Hospira, Inc., No. 13-2433 (7th Cir., August 7, 2014). In order to state a claim for Title VII or FMLA retaliation, a plaintiff must provide evidence of: (1) protected expression; (2) materially adverse employment action; and (3) a causal connection between the two. A formal complaint of sexual harassment to human resources and a request for FMLA leave constitute protected activity. A failure-to-promote and a demotion constitute materially adverse employment action. In Milan, three years stood between the protected activity and adverse employment action. However, a lengthy time-interval between the protected activity and adverse job action is not an absolute bar to a retaliation claim. As time passes between the protected activity and adverse action, the inference of retaliation weakens, but the plaintiff may still support her retaliation claim with other circumstantial evidence. The unique facts and circumstances of each retaliation case must be evaluated, regardless of the timing between protected activity and adverse action, for which there is no bright-line rule.
On August 4, 2014, the 7th Circuit affirmed summary judgment in an FMLA retaliation case. Langenbach v. Wal-Mart Stores, Inc., No. 14-1022 (8-4-2014). The plaintiff alleged that her employer took various adverse job actions against her and terminated her employment in retaliation for her FMLA leave of absence. A plaintiff may establish a retaliation claim under the Family and Medical Leave Act through the direct or indirect method of proof. With the direct method, a plaintiff must show that: (1) she engaged in statutorily protected activity; (2) the employer took materially adverse job action against her; and (3) there is a causal connection between the protected activity and the adverse action. Negative performance reviews and performance improvement plans are not materially adverse for purposes of an FMLA retaliation claim. A schedule change is also not materially adverse, unless is was made by the employer in order to exploit a known vulnerability of the employee. An employment termination, on the other hand, is materially adverse. A plaintiff may demonstrate a causal connection between her FMLA leave and employment termination through a direct admission of the employer, or a convincing mosaic of circumstantial evidence. The circumstantial evidence may consist of suspicious timing, disparate treatment, pretext, or ambiguous statements through which an inference of retaliation may be inferred. The evidence must point directly to an illegal motive for the adverse action, without resort to speculation.
On July 22, 2014, the 7th Circuit affirmed summary judgment in a Title VII race discrimination failure-to-hire case. Matthews v. Waukesha County, No. 13-1839 (7-22-2014). In order to establish a discriminatory failure-to-hire claim, the employee must show that: (1) she is a member of a protected class; (2) she applied and was qualified for the position; (3) she was rejected for the position; and (4) the employer filled the position with someone not in her protected class. This shifts the burden to the employer to articulate a legitimate, non-discriminatory reason for the hiring decision. Once the employer states a reason, the burden shifts to the employee to prove the employer's stated reason is pretext for discrimination. In Matthews, the plaintiff established a prima facie case of discrimination, but failed to offer enough evidence of pretext to survive summary judgment. The incontrovertible fact that the decision-makers in the hiring process did not know the race of the applicants was dispositive. The plaintiff's contention, that the decision-makers inferred the race of certain applicants from their names, was rejected by the 7th Circuit as one of those evidentiary "flights of fancy."
On July 21, 2014, the 7th Circuit held that night-shift staff use of an employee's desk for sex every night did not create an actionable hostile work environment. Orton-Bell v. State of Indiana, No. 13-1235 (7-21-2014). In order to establish a hostile work environment claim under Title VII, an employee must meet all of the following elements: (1) the work environment must be both subjectively and objectively offensive; (2) the employee's gender must have been the cause of the harassment; (3) the conduct must have been severe or pervasive; and (4) there must be a basis for employer liability. The plaintiff reported the nightly sex-on-her-desk to her supervisor, who did not intervene, but told her to wash down her desk every morning. However, these facts did not satisfy the second element. The actions of the staff and supervisor were not motivated by the plaintiff's gender. There was no unlawful discrimination on the basis of sex.
On July 10, 2014, the 7th Circuit affirmed summary judgment in a Title VII national origin discrimination and retaliation case. Tank v. T-Mobile USA, Inc., No. 13-1912 (7-10-2014). In its decision, the 7th Circuit discussed discriminatory remarks, similarly-situated comparators, and pretext. In order to raise an inference of discrimination, a discriminatory remark must be: (1) made by the decision-maker, (2) around the time of the decision, and (3) in reference to the adverse employment action. Isolated discriminatory comments made more than a year before the adverse employment action are not evidence of discrimination. In Tank, the plaintiff alleged that a decision-maker had mocked his Indian accent. However, the incident happened more than three years before his employment termination and, therefore, did not raise an inference of discrimination.
On July 10, 2014, the 7th Circuit reversed a 12(b)(6) dismissal of a Title VII sex discrimination and retaliation complaint, stating that the district court had applied the summary judgment standard to a motion to dismiss. Carlson v. CSX Transportation, Inc., Nos. 13-1944 & 13-2054 (7-10-2014). In its decision, the 7th Circuit stated and explained the pleading requirements for Title VII discrimination and retaliation claims. Evidence is not required at the pleading stage. A plausible claim for relief is sufficient as long as there are enough details to present (not prove) a story that holds together. In order to plead a Title VII sex discrimination claim, a plaintiff need only allege that the employer took adverse action against her on the basis of her sex. At the pleading stage, a Title VII plaintiff is not required to identify a similarly situated comparator or allege the elements of a prima facie case under the indirect method of proof.
On June 19, 2014, the 7th Circuit affirmed summary judgment in a Title VII harassment and discharge case. Nichols v. Michigan City Plant Planning Dept., No. 13-2893 (7th Cir.) June 19, 2014. The 7th Circuit held that the plaintiff did not provide sufficient evidence of a hostile work environment. Employers are prohibited from requiring employees to work in a discriminatorily hostile or abusive work environment. To succeed on a hostile work environment claim, an employee must establish that: (1) the work environment was both subjectively and objectively offensive; (2) the harassment was based on membership in a protected class; (3) the conduct was severe or pervasive; and (4) there is a basis for employer liability. The question is whether the conduct was so severe or pervasive that it altered the conditions of the employment relationship. The court examines the totality of the circumstances, including: (1) the frequency of the conduct; (2) the degree to which the conduct would seem offensive to a reasonable person; (3) whether it is physically threatening or humiliating conduct as opposed to verbal abuse; (4) whether it unreasonably interferes with the employee's work performance; and (5) whether the conduct was directed at the victim.