Keefe, Campbell & Associates, LLC

Editor’s comment: Hard to imagine these facts made it to the Seventh Circuit for consideration. However, if you review the facts you will note claimant already filed a prior EEOC charge and internal discrimination complaints. The employer did a solid job of trying to insure all interviewers were “independent” or otherwise unaware of prior complaints.

Our advice in EPLI claims such as this is to have your defense case-in-chief ready when the EEOC or Illinois Department of Human Rights sends you the notices. All of our top clients do so. If you need assistance in developing a strong defense case-in-chief, send a reply.

In Stephens v. Erickson, (No. 08-1416, June 30, 2009), the Federal Appeals Court ruled the District Court did not err in granting the Defendant-employer’s motion for summary judgment in a Title VII discrimination action. Plaintiff-employee alleged Defendant failed to promote Plaintiff on four separate occasions in retaliation for having previously filed an EEOC charge and for making internal discrimination complaints.

The record before the Federal Appellate Court showed the interviewing process as to all four promotions was fair. The record also demonstrated interviewers who scored all applicants were unaware of existence of Plaintiff’s prior EEOC charge or internal complaints.

Moreover, Plaintiff failed to establish that an individual manager with Defendant who had knowledge about his prior discriminations complaints played any role in promotional decisions where record showed that said individual was mere “rubber stamp” for approving recommendations for promotions made by interviewers.

If you have thoughts and comments or need the case citation, please send a reply.

Editor’s comment: Hard to argue with this outcome and it is amazing it made it all the way to the Seventh Circuit. A group of workers went to breakfast at a restaurant named Nick’s during the middle of their shift. It appears from the record they didn’t clock out and once the deception was discovered, they got the boot. We know you are surprised to hear it but they then sued, claiming it wasn’t due to deception; it was discrimination due to race and national origin.

In Antonetti v. Abbott Laboratories, (No. 08-1647 April 21, 2009), the Seventh Circuit Court of Appeals ruled the District Court did not err in granting Defendant-employer’s motion for summary judgment in a Title VII action alleging Defendant terminated Plaintiffs on account of their race and national origin for submitting false time cards based on their attendance at off-site breakfast during scheduled shift.

While Plaintiffs contended their terminations were discriminatory since Defendant did not terminate another co-worker who had also attended the breakfast, Plaintiffs’ proposed comparable worker was not similarly situated to Plaintiffs where, unlike Plaintiffs, the co-worker didn’t lie about going to the breakfast. He initially admitted to his supervisor that he had attended the breakfast and did not submit false time card.

If you have thoughts or comments on handling similar employment discrimination matter, send a reply.

Editor’s comment: While the ability of the EEOC to investigate potential discrimination is important, the facts of this case lead the editor to believe the EEOC hasn’t figured out how to focus on potential instances of ongoing harmful discrimination rather than past policies of now non-existent companies which do not appear to have been harmfully discriminatory at first blush. It is hard to imagine which anyone really believes a policy of not hiring violent criminals is unacceptable discrimination—if your company makes it a policy to hire violent criminals, please reply as we have some vocational claims which may provide you with a steady stream of available employees.

In EEOC v. Watkins Motor Lines, Inc., No. 08-2483 (January 23, 2009) the Seventh Circuit on appeal from the United States District Court for the Northern District of Illinois, Eastern Division was presented with a question regarding whether the EEOC has subject matter jurisdiction to complete investigation including the power to ask the District Court to adjudicate subpoena enforcement actions even after the charging party asks to withdraw their charge.

By way of background, in June 2004 after experiencing three episodes of employee-on-employee murder or attempted murder, Watkins Motor Lines decided which it would no longer hire anyone who had been convicted of a violent crime. Three months later Watkins rejected Lyndon Jackson’s application because of his criminal record. He filed a complaint with the Equal Employment Opportunity Commission, which opened an investigation to determine whether the policy had a disparate impact on minority applicants—and, if so, whether it was “job related for the positions in question and consistent with business necessity”. Watkins did not cooperate in the investigation, and on April 8, 2005, the EEOC issued a subpoena seeking pertinent information which was ignored. Jackson and Watkins reached a settlement in January 2006 and Watkins insisted the settlement be contingent on the EEOC’s abandonment of its investigation. Jackson told the EEOC he was withdrawing his charge of discrimination however the EEOC’s regulations give it discretion whether to allow a charge to be withdrawn, and the EEOC decided to press ahead with an investigation which may cover persons in addition to Jackson. In September 2006 Watkins Motor Lines sold its operating assets to FedEx. Since Watkins remains potentially liable to Jackson and any similarly situated applicants, the proceeding was not moot. The district court did not act on the subpoena until March 2008, when it dismissed for lack of subject-matter jurisdiction the EEOC’s motion (filed in July 2007) to enforce the subpoena. The judge believed Jackson would be best served by the settlement, and since settlement was contingent on withdrawal of the charge the agency should have allowed him to withdraw it, reasoning the agency’s contrary decision was arbitrary so it was as if no charge had been filed—and, if no one makes a valid charge, the EEOC is not entitled to investigate.

The Seventh Circuit notes the judge appears to have believed the lack of a pending charge deprives the court of subject-matter jurisdiction, however two provisions of Title VII itself authorize district courts to adjudicate subpoena-enforcement actions filed by the EEOC and 28 U.S.C. §1345 creates subject-matter jurisdiction for any suit filed by the United States or one of its agencies. A district court’s belief the EEOC should not have investigated or sued does not detract from the fact it did ask the court to enforce its subpoena. A statute authorizes the court to adjudicate this request.

Watkins contends Jackson’s request to withdraw his charge should have been granted. Yet withdrawing a charge does not mean a valid charge was never filed. Watkins didn’t contend, and the district court did not find Jackson’s charge was invalid when filed. Once one has been filed, the EEOC rather than the employee determines how the investigation proceeds. The Seventh Circuit noted the suit affects legal rights of persons other than the initial plaintiff, and some other member of the class is entitled to intervene to carry on with the litigation. The Seventh Circuit further noted allowing settlement contingent on vacatur of all judicial decisions made so far, in order to relieve the parties of any preclusive or precedential effects which the decisions carry would almost be automatic if allowed. The problem with this type of decision would be allowing litigants to achieve their settlement by injuring other, unrepresented persons. The Seventh Circuit noted many a defendant would love to decapitate a class after the statute of limitations has run by paying off the sole representative plaintiff, and thus avoiding potential liability to all other class members. The Seventh Circuit noted the EEOC and the judiciary are not obliged to abet this strategy by preferring Jackson’s interests over those of other workers. Jackson and Watkins Motor Lines are free to resolve their own dispute but may not compromise the interests of other employees and applicants in the process. The EEOC’s regulation says “[a] charge filed by or on behalf of a person claiming to be aggrieved may be withdrawn only by the person claiming to be aggrieved and only with the consent of the Commission . . . where the withdrawal of the charge will not defeat the purposes of Title VII”. The agency is entitled to vindicate the interests of all employees and applicants.

Finally, the Seventh Circuit appears to hint Watkins should have asked to affirm the judgment on the ground the subpoena was needlessly burdensome or otherwise inappropriate and the Seventh Circuit further noted they (like the district judge) questioned whether the EEOC is acting prudently by devoting time of both its staff and Watkins to short-lived practices by an entity which is no longer an operating company, and whose rule may well be amply supported by “business necessity” given its history of workplace violence. But the Seventh Circuit confirmed the Executive Branch rather than the Judicial Branch is entitled to decide where investigative resources should be devoted and a charging party’s change of mind does not diminish the agency’s authority to investigate on its own behalf so the judgment of the district court was reversed, and the case was remanded with instructions to enforce the subpoena.

This case is a pretty straightforward example of the power of governmental agencies to conduct their investigations and how a single charge, however lacking in basis or evidence—even lacking cooperation of the charging party—can continue to create legal issues for a company. It is difficult for us to recommend a company consider not implementing rules or policies which may offend the “senses” of parties from whom you are attempting to protect you business or workforce at large. Instead, we suggest consideration of the common sense approach to litigation where you detail the lack of evidence, the valid purpose behind your policy and the valuable time and resources being wasted. Based upon the decision reviewed, it appears the courts still value their time even if our government agencies do not. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts and comments or need the case citation, please send a reply to sbiery@keefe-law.com.

Editor’s comment: Plaintiff in a Title VII retaliatory discharge action cannot avoid motion for summary judgment where Plaintiff secretly tape-recorded meetings with superiors in the workplace in an effort to prove her sexual harassment claim. Summary judgment was affirmed by the Seventh Circuit Court of Appeals because the protections afforded to employees under Title VII do not license “espionage” or other self-help tactics to build one’s case against the employer. Plaintiff clearly out-smarted herself in a way that ultimately led to the demise of her potentially viable claims.

In Christina A. Argyropoulos v. City of Alton, Plaintiff was employed for ten months as a prison guard, having received mixed reviews on performance during her tenure. Of note, Plaintiff was documented as having difficulty with completing tasks in a timely manner, insufficient prisoner searches and booking procedures and general difficulties with “multi-tasking”. During this period however, Plaintiff had a tumultuous work relationship with a fellow prison guard, Steven Duty. It is not disputed Duty engaged in improper conduct and harassing speech toward Plaintiff. The City took appropriate steps to investigate and ensure further harassment did not occur, changing work shifts and compelling “escorts” to be present during shift changes. Despite these steps, Plaintiff met with an attorney in late March, 2003 to discuss her claims of harassment.

Plaintiff’s work performance continued to be the subject of stronger criticism and on April 28, 2003 Plaintiff was called into a meeting with her superiors. Plaintiff assumed the meeting was called to address progress on her harassment claim; she was upset to learn otherwise. Plaintiff was indignant to the charges of poor performance and, in an effort to obtain evidence of further harassment; Plaintiff began recording the conversation of the meeting with a hidden recorder. Feeling the urge to brag of her Nancy Drew-like skills, another co-worker was confided with, who ultimately informed the City of the recording.

Representatives of the City of Alton were upset, to say the least, and executed a search warrant leading to the discovery of the recording device in Plaintiff’s car. Plaintiff was arrested and charged with felony eavesdropping in violation of 720 ILCS 5/14-2 and was promptly fired the same day. The chief provided three written reasons for termination in his letter of April 30, 2003. (1) poor job performance (2) alleged criminal conduct while on duty and (3) untruthful statements given to officers during the search of her home, whereupon she first denied possession of the recording.

Plaintiff decided to pursue her claim in the courts and in her initial complaint, she alleged several violations for sexual harassment, discrimination, wrongful termination, defamation, denial of due process under Section 1983, and for good measure, a claim for intentional infliction of emotional distress. Most claims were dismissed and/or dropped by Plaintiff. However, Plaintiff maintained an appeal of the Title VII harassment claim and the Section 1983 claim, the latter of which was summarily disputed of by the Court.

Our U.S Court of Appeals for the Seventh Circuit affirmed the summary dismissal of Plaintiff’s Title VII retaliatory discharge claim. In doing so, the Appellate Court noted that only two of the three elements of a retaliatory discharge claim had been met.

Retaliation can be proven by either the direct or indirect method. Under the direct method, a plaintiff must present evidence, either direct or circumstantial, showing:

(1) She engaged in statutorily protected activity;

(2) She suffered a materially adverse action; and

(3) A causal connection existed between the two.

Alternatively, a plaintiff may establish a prima facie case of retaliation under the indirect method by showing that (1) she engaged in statutorily protected activity; (2) she suffered a materially adverse action; (3) she met her employer’s legitimate expectations; and (4) she was treated less favorably than some similarly situated employee who did not engage in the statutorily protected activity.

In this case, it was undisputed (1) the sexual harassment complaint was a statutorily protected activity and (2) the termination qualifies as a materially adverse action. However, the Court found insufficient evidence of any causal relationship between Plaintiff’s harassment complaint and her termination. In so ruling, the Court noted the mere sequential timing of the two events (Plaintiff was fired seven weeks after her harassment complaint was made) was not sufficient to satisfy the causal connection requirement. Simply stated, suspicious timing alone will not carry the day.

Plaintiff similarly failed under the indirect method, in so far as her poor work performance was documented both before and after her charge of harassment. Finally, there were no other similarly situated employees by which a fair comparison could be made (the Court noted that Plaintiff would never be able to find another similarly situated employee who engaged in similar eavesdropping misconduct). The Court’s decision resonated the theme that Plaintiff was engaged in a “dubious” practice of “work-place espionage” and therefore, Plaintiff could not cast sufficient doubt on the City’s non-retaliatory basis for her termination.

Although it may appear the Court’s decision was an easy one based on the antics of Plaintiff with her hidden recorder, it is worth noting the City was wise to have “built their defense case in chief” during the entire process. The City documented poor work performance throughout Plaintiff’s tenure and clearly stated the legitimate basis for termination in written correspondence. The City also took proper steps to address the charge of discrimination in a timely manner. It is often the failure of employers to properly document such occurrences which leads to viable claims that survive summary judgment, even where the termination may be proper.

This article was researched and drafted by John P. Campbell, Jr., JD. Please direct any thoughts or comments on employment law defense issues to John at jcampbell@keefe-law.com.

Editor’s comment: This ruling confirms the four-part McDonnell Douglas test known as the indirect method to prove discrimination. It also confirms seniority will tend to make two employees dissimilar for purposes of plaintiff’s prima facie case and forces an individual arguing discrimination to present more than simple allegations to survive summary judgment. It should also be noted the documentation in company files appears to have provided ample evidence for affidavits disputing charges which were the strong backbone of the defense in successfully achieving summary judgment.

In Tyson v Gannett Co., Inc. (No. 07-2832 August 19, 2008), the Seventh Circuit Court of Appeals on appeal from the United States District Court for the Southern District of Illinois decided a claim where Plaintiff Angela Tyson sued her employer Gannett Company, Inc., alleging it had discriminated against her on the basis of her race and disability and further retaliated against her for filing a disability charge of discrimination by refusing to let her return to work at her discretion after she had suffered a back injury. It should be noted that during the course of the litigation, Tyson abandoned all avenues of relief except for her two race discrimination claims. The district court granted summary judgment in favor of Gannett on both claims after they found Tyson failed to make out a prima facie case because she failed to present sufficient evidence to establish that a similarly situated white employee was treated more favorably.

Tyson’s employer, Gannett, owns the Indianapolis Star and News newspaper. Tyson was hired in 1998 as a mailer helper and was promoted to mailer assistant. Like all mailer assistants at the Star, Tyson is a member of the Teamsters Indiana Mailers Union Local 2001. The collective bargaining agreement between the Union and the Star required tasks be assigned to mailer assistants on the basis of “priority” (seniority). Thus, the most senior mailer assistant on a shift is allowed to choose the task she or he wishes to perform.

It should also be noted, when it is available, special “light duty” work can be given to mailer assistants who are injured or who have medical restrictions because of health problems. On October 3, 2002, Tyson slipped and fell at work and was injured. She took sick leave and returned to work with medical restrictions, so she was assigned light work. In December 2002, her doctor discovered she had injured her arm in the fall and imposed additional work restrictions. In February 2003, Tyson had surgery to remove a cyst on her tail bone, unrelated to her fall. After that surgery, she claims to have had chronic back pain. Tyson took short-term disability leave beginning in February 2003. In June 2003, Tyson was released to return to work, but the Star had no openings for her that she could perform at that time with her restriction of not lifting more than 25 pounds. A medical report of October 2003 stated she could work if she was provided with a counter brace for her right upper extremity and a lifting restriction of 35 pounds. When she no longer needed the brace, Tyson returned to work as a mailer assistant in November with a 25-pound lifting restriction and was assigned light duty work. Then, in 2004, her back began to cause her discomfort. At that time, no light duty work assignments were available and she sought and obtained both short and long-term disability benefits. She remains on long-term disability to this day while still an employee of the Star.

Tyson sued Gannett under §1981 and Title VII of the Civil Rights Act of 1964. Gannett argued Tyson cannot bring a Title VII claim because, it says, she did not file a charge of race discrimination with the Equal Employment Opportunity Commission (EEOC) and, thus, has failed to exhaust her administrative remedies. For reference, a plaintiff can sue under Title VII only if she first has filed a charge of discrimination with the EEOC. See Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 726 (7th Cir. 2003). Tyson failed to present any evidence disclosing whether she filed a Title VII race discrimination claim, thus Gannett was entitled to summary judgment on Tyson’s Title VII claim because she failed to comply with the EEOC requirement.

Please note an amendment to the Illinois Human Rights Act made significant changes to Illinois law on January 1, 2008. The amended law allows Illinois employees to have employment law disputes heard by a jury. The most significant change was the newly created option for a plaintiff to have the claim in civil court upon completion of an investigation by the IDHR. Prior to the amendment, the only judicial forum for employment discrimination disputes was federal court. State law had no judicial remedies. If you need details on this issue, send a reply.

The Section 1981 claim initially survived, however, because the filing of a discrimination charge with the EEOC is not a prerequisite to pursuing that claim in court. The Court then turned to the question of whether there was any evidence to support her claim of race discrimination.

Tyson chose to prove her case using the indirect method set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). The four-part McDonnell Douglas test is

(1) Is the complaining party a member of a protected class?

(2) Was the complaining party meeting defendant’s legitimate job requirements?

(3) Did the complaining party suffer an adverse employment action?

(4) Was another employee of a different race who was similarly situated treated more favorably?

The parties do not dispute that Tyson met the first three prongs. They disagreed about whether Tyson could establish the fourth prong by proving that a Caucasian employee, Janet Harvey, was similarly situated and she was treated more favorably. Tyson asserted Harvey was allowed to work as a mailer assistant when she had a 25 pound lifting restriction. To be similarly situated, Harvey and Tyson must be alike “in all material respects,” so as to suggest that Tyson “was singled out for worse treatment.” Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007) (quoting Crawford v. Ind. Harbor Belt R.R. Co., 461 F.3d 844, 846 (7th Cir. 2006)).

The record demonstrated Tyson and Harvey were not similarly situated because they had different seniority status which was the determining factor in job assignment under the union’s collective bargaining agreement. Harvey began working for the Star approximately three years before Tyson. An affidavit confirmed Harvey was in the top half of mailer assistants in terms of seniority, while Tyson was in the bottom half. Harvey had enough seniority to ensure she would only have to work on tasks within her restrictions. It was noted the Seventh Circuit recently ruled in Filar v. Board of Education of the City of Chicago, 526 F.3d 1054, 1061-62 (7th Cir. 2008), that: “In some circumstances, differences in seniority will preclude a showing that two employees are ‘similarly situated’. . . . To the extent that seniority is a simple proxy for something like the length of employment and is something that an employer must credit when making employment decisions, differences in seniority will tend to make two employees dissimilar for purposes of the plaintiff’s prima facie case.” Under this reasoning, Tyson and Harvey are not similarly situated and, therefore, summary judgment was appropriate because Tyson failed to prove her prima facie case of race discrimination.

This case is also another example of a company following set guidelines—in this case, a collective bargaining agreement—and documenting a situation effectively to avoid liability for claims via summary judgment with appropriate evidence to support their defenses rather than proceeding to the whims of a judge or jury for a determination on the merits without appropriate evidence. We again remind all employers to follow your guidelines and ALWAYS DOCUMENT to provide the company with defenses in these types of litigation. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts and comments or need the case citation, please send a reply to sbiery@keefe-law.com.