On December 10, 2014, the 7th Circuit affirmed summary judgment in a lawsuit in which the plaintiff alleged sex discrimination, age discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act. Ripberger v. Corizon, Inc., No. 13-2070 (7th Cir., 12-10-2014). The plaintiff/employee claimed that her employer failed to hire her for an open position in connection with a restructuring because of her sex, age, and protected activity of assisting another employee with her sex discrimination grievance. The 7th Circuit agreed with the district court, that the plaintiff was an unfortunate victim of a reduced work force in the wake of the privatization of a state program. The 7th Circuit stated that the fundamental question on summary judgment is simply whether a reasonable jury could find prohibited discrimination, i.e., that a rational jury could conclude that the employer took the adverse action on account of her protected class.
Title VII (Title VII of the Civil Rights Act of 1964, as amended)
On December 1, 2014, the 7th Circuit reversed summary judgment in a Title VII and Section 1981 action in which the plaintiff alleged that his former employer terminated his employment because of his race and in retaliation for his prior complaints of race discrimination. Parker v. Scheck Mechanical Corporation, No. 13-3693 (7th Cir., 12-1-2014). The district court entered summary judgment on the basis that the plaintiff had sued the wrong company and had not sued his actual employer. The 7th Circuit reversed because the two companies are interrelated. The company website treats the two and various other business entities interchangeably, and represents that they are all one company with one corporate headquarters. The 7th Circuit agreed with the plaintiff that the line between the companies is blurred, as reflected by their overlapping corporate officers and shared office space. Moreover, a Manager who stated in an Affidavit that his company (the alleged wrong company) did not employ or discharge the plaintiff, and is entirely separate from the company that did, also stated in the same Affidavit that he has personal knowledge of the details behind the plaintiff's discharge. This was the inconsistency that broke the camel's back.
On November 26, 2014, the 7th Circuit affirmed summary judgment in a lawsuit under the Americans with Disabilities Act, the Family and Medical Leave Act, and Title VII of the Civil Rights Act of 1964. The former employee alleged that the employer had failed to accommodate her disability as required by the ADA, had discriminated and retaliated against her based on her disability, had interfered with her FMLA rights, and had discriminated against her based on her race. The 7th Circuit held that: (1) her ADA discrimination claim failed because she did not establish that she was a qualified individual with a disability, or that she met the employer's legitimate job expectations; (2) her failure to meet expectations also precluded her race discrimination claim; (3) her ADA failure-to-accommodate claim failed because her accommodation was not reasonable; (4) there was insufficient evidence to support her ADA retaliation claim; and (5) her FMLA interference claim failed because she was not denied FMLA leave.
On November 14, 2014, the 7th Circuit reversed the district court's dismissal of a sex discrimination lawsuit filed under Title VII of the Civil Rights Act of 1964. Stuart v. Local 727, No. 14-1710 (7th Cir., 11-14-2014). The plaintiff is a professional driver who belonged to a union. She alleged that in its 70-year history, the Movie/Trade Show Division of the union never referred a female driver to drive for any of its movie or television production companies. She also alleged that she received no referrals in four and a half years, her resume was never included with those of the other applicants, and no women has ever been referred by the Division for a driving job.
On October 15, 2014, the 7th Circuit affirmed summary judgment in a Title VII and ADA action on the basis that the plaintiff--a part-owner of the defendant business--was not an employee and therefore not covered by Title VII or the ADA. Bluestein v. Central Wisconsin Anesthesiology, No. 13-3724 (7th Cir. 10-15-2014). In order to be entitled to protection under Title VII, a person must be an employee of an employer that employs 15 or more employees. In Bluestein, the plaintiff filed a Title VII and ADA lawsuit against a company in which she was a partner/shareholder and member of the Board of Directors. She had an equal right to vote on all Board matters, shared equally in the profits and liabilities of the company, participated in hiring and firing decisions, and had an equal right to influence employment policies.
On October 7, 2014, U.S. District Court Judge John W. Darrah issued a Written Opinion and Order granting CVS's Motion for Summary Judgment and dismissing the EEOC's lawsuit against CVS. Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., No. 14-cv-863 (N.D.Ill.2014). In this lawsuit, the EEOC alleged that CVS's Severance Agreement is invalid and unenforceable under Title VII of the Civil Rights Act of 1964. The case was closely watched by employment law attorneys because the terms and conditions of CVS's Severance Agreement are typical of those commonly used by employment lawyers in severance or separation agreements. Some employment law attorneys were concerned that invalidation of the standard terms and conditions of severance or separation agreements would create obstacles to negotiating settlements of employment law claims. The incentive for most employers to pay employees monetary settlements of employment law claims is to receive a release of claims and an agreement to not sue in exchange for the payment. If these terms were declared unenforceable, the incentive would be lost, and it would take some very creative lawyering to structure viable settlements of employment law claims. In view of Judge Darrah's dismissal of the EEOC's lawsuit, this will not be the case.
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.
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.