Employee sued under Section 1981, alleging that her transfer from one section of her employer's billing division to another was because of racial discrimination, and that the employer retaliated against her for filing internal discrimination complaint when it issued her written report. Madlock v. WEC Energy Group, Inc. , No. 17-1278 (March 14, 2018). The employer moved for summary judgment, which the District Court granted. The Seventh Circuit affirmed.
The Seventh Circuit held that the employee failed to establish a sufficient adverse act arising out of the transfer, as she suffered no reduction in salary, loss of benefits or loss of title. Her loss of team co-workers to whom she had previously served as lead worker was insufficient to constitute actionable adverse act, where the plaintiff's loss of leadership position through transfer was intended to be only temporary. The fact that some of the plaintiff's co-workers believed that the plaintiff's transfer was humiliating did not require different result.
Also, plaintiff failed to establish prima facie case of retaliation based on disparate treatment, where plaintiff contended that defendant had not disciplined anyone else for committing workplace infraction months before issuance of discipline, and where plaintiff had failed to identify anyone else who committed infraction many months before management had learned of said infraction. Also, plaintiff presented no direct evidence suggesting that management ever responded negatively to her filing of internal discrimination complaint or took steps against her because of it.
Employee sued his employer under the ADEA and Title VII, alleging that the defendant discriminated against him because of his age and national origin. Skiba v. Ill. Central Railroad Co., No. 17-2002 (March 8, 2018). The employee claimed that the defendant removed him from his management position, failed to transfer him to similar position, and then retaliated against him for complaining about supervisor. Defendant moved for summary judgment, which the District Court granted. The Seventh Circuit affirmed.
The Seventh Circuit held that the plaintiff failed to engage in any statutorily-protected "protest" of discrimination as he registered only general complaints about his supervisor's conduct without attributing it to any discriminatory animus.
Also, age-related statements by supervisors and others, such as how old plaintiff was, how another candidate was "a little faster" at grasping aspects of the job, or how the plaintiff had "low energy" or was close to retirement age did not constitute evidence of age-related bias, because: (1) the individuals offered age-neutral explanations for the remarks; (2) some statements were made by non-decision makers; and (3) the reference to plaintiff's retirement age did not have exact correlation with plaintiff's age to constitute evidence of age discrimination.
With respect to the plaintiff's failure to obtain new position, the plaintiff failed to show that he was qualified for a majority of 82 positions he sought, and the fact that younger co-workers received those positions did not establish an age discrimination claim, as the plaintiff presented evidence that he was similarly situated to the younger co-workers.
Bradley Levison defended the Better Business Bureau of Central Illinois (“BBB”) in a defamation lawsuit arguing that BBB’s ratings are opinions protected by the First Amendment. The trial court agreed and dismissed the lawsuit. The Third District Appellate Court affirmed that dismissal based on the constitutional arguments raised by Mr. Levison.
In Perfect Choice Exteriors, LLC v. Better Business Bureau of Central Illinois, Inc. 2018 IL App (3d) 150864, a home improvement company sued the BBB alleging defamation, commercial disparagement, tortious interference with contract and violation of the Uniform Deceptive Trade Practices Act, 815 ILCS 510/2. Each of the home improvement company’s claims was premised upon the allegation that BBB made defamatory statements by giving the company a “D-“ rating and by telling potential customers that plaintiff was not a good company. Bradley Levison, as lead counsel for BBB, successfully had the amended complaint dismissed, arguing that the allegedly defamatory statements were opinions protected by the First Amendment.
The business appealed the dismissal and the appellate court affirmed the trial court’s dismissal. In affirming the dismissal, the appellate court noted that courts in other jurisdictions have repeatedly held that the BBB’s ratings are opinions protected by the First Amendment. Perfect Choice, 2018 IL App (3d) 150864 at ¶27. The appellate court agreed with Mr. Levison these decisions from other jurisdictions were persuasive and held that “a grade or a rating is constitutionally protected.” Id. at ¶29. The appellate court also noted that its decision was is consistent with rulings from other jurisdictions, that have ruled BBB ratings are protected opinion. Id. at ¶27.
Perfect Choice is significant because it reaffirms that the First Amendment privilege applies to allegedly defamatory statements made by private parties. Perfect Choice also establishes that a grade or rating is an opinion protected by the First Amendment.
Mr. Levison continues to serve in a pro bono capacity as General Counsel for the Better Business Bureau of Central Illinois.
Perfect Choice Exteriors, LLC v. Better Business Bureau of Central Illinois, Inc. 2018 IL App (3d) 150864 (illinoiscourts.gov/Opinions/AppellateCourt/2018/3rdDistrict/3150864.pdf).
Plaintiff, a disabled student on a high school track team, alleged that the defendant, the Illinois High School Athletic Association, discriminated against him based on his disability when it refused his request to create separate division with different, slower time standards for para-ambulatory runners in Sectional and State championship track meets. A.H. v. Ill. High School Ass'n., No. 17-2456 (February 2, 2018).Defendant moved for summary judgment, with the District Court granted. The Seventh Circuit affirmed.
The Seventh Circuit held that the plaintiff's accommodation requests were unreasonable, where: (1) the plaintiff sought accommodations with proposed qualifying times that would make him competitive for both meets and would allow him to achieve results that he currently could not achieve in time standards set for all athletes; and (2) the proposed accommodation would have altered fundamental nature of track and field events which purposefully narrow field of participants for Sectional and State meets. The Seventh Circuit noted that the fact that there was no reasonable likelihood that the plaintiff or any other similarly-situated disabled runner could qualify for State meet under current qualifying times did not require different result.
However, Judge Rovner dissented, noting that "The outcome of this case depends on who has correctly framed the issue. According to A.H., he was required to adduce evidence sufficient to create a material dispute of fact as to whether but for his disability, he would have a meaningful opportunity to qualify for the state finals. According to the IHSA, A.H. was required to adduce evidence sufficient to create a material dispute of fact as to whether but for his dis‐ ability, he would be among the elite 10% of runners who qualify for the state finals." The majority agreed with IHSA, but "[t]his cannot be so."
In January, Judge Kennelly granted a request for a preliminary injunction from Courthouse News Service, ordering Brown and her office to create a system under which the press, at least, can gain immediate access to newly filed lawsuits, including those filed electronically, or e-filed, through the circuit clerk’s online filing system.
On February 1, 2018, Cook County Clerk Dorothy Brown appealed the federal judge's order to begin providing the public immediate access to electronically filed lawsuits to the Seventh Circuit.
Interestingly, on February 14, the Illinois Supreme Court denied Brown’s petition for additional time as well. It stated “This cause coming to be heard on the petition of the Cook County Circuit Court Clerk for relief from certain orders of this court related to e-Filing on the grounds that such relief is necessary to permit her office to comply with the order entered by U.S. District Court Judge Matthew F. Kennelly … and the Court being fully advised in the premises; It is ordered that the petition is denied,” the state Supreme Court said.
That same day the Seventh Circuit agreed to put on hold a lower court’s order that she make them accessible until it has a chance to consider whether the order was proper.
Michael Catinella sued Cook County and its Department of Transportation for firing him under false pretenses in violation of his rights under the Due Process Clause, the Equal Protection Clause, and federal statutory provisions. Catinella v. County of Cook, et al., No. 16-2278 (7th Cir. January 31, 2018). The District Court dismissed the complaint with prejudice and the Seventh Circuit affirmed.
The Seventh Circuit held that in order to survive a motion to dismiss, a complaint must include “enough details about the subject-matter of the case to present a story that holds together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). Further, "Catinella certainly spins an elaborate story, but it doesn't cohere around any plausible constitutional or statutory violation."
The Seventh Circuit elaborated that the "complaint describes a public-bidding process gone awry, an investigation to cover it up, coworkers who were jealous of Catinella's promotion, a confiscated knife, false reports to police that Catinella threatened to “shoot up the workplace,” and an arrest on a charge of disorderly conduct—all leading up to the abrupt termination of his employment with the County. What the complaint does not show, however, is how this whirlwind of alleged unfairness violates any federal constitutional or statutory provision. After giving Catinella two chances to plead a plausible claim for relief, the district judge dismissed the case with prejudice."
Employees filed a complaint for violations of the Illinois Wage Payment and Collection Act. Watts v. ADDO Management, L.L.C., 2018 Ill. App. (1st) 170201 (January 24, 2018). The trial court dismissed the complaint under Section 2-615, at the pleading stage and prior to discovery, holding that as a matter of law, the Illionois Wage Payment and Collection Act does not apply to employees who provided a majority of their services outside of the state of Illinois. The Appellate Court reversed and remanded.
The Appellate Court noted that the Plaintiffs were Illinois residents and the work they performed (truck driving) originated and ended in Illinois. Thus, the Appellate Court held that the trial court's calculation of the percentage of work performed by Plaintiffs in Illinois for trips to Oregon was improper and provided inadequate ground for dismissal.
Over the past few months, the #MeToo movement has exposed an epidemic of sexual harassment and retaliation in the workplace. However, that exposure does not always lead to results. Thus, the #MeToo movement needs more support in order to be successful.
With increased exposure, we have seen increased investigations. But those investigations frequently result in finding that no sexual harassment or retaliation took place, leaving the victim with very little recourse.
Fear of Title VII liability does not sufficiently deter companies from ignoring harassment or from retaliating against those who report it.
For instance, under Title VII, combined compensatory and punitive damages are capped. The caps begin at $50,000 for employers with between 15 and 100 employees and top out at $300,000 for employers with more than 500 employees. These amounts are insufficient as an incentive to stop harassment and retaliation. Thus, we must increase or removing the caps on damages.
Companies also do not fear Title VII liability when they have arbitration agreements in place with their employees. Arbitration frequently diminishes a company's exposure. Thus, eliminating forced arbitration would create more of an incentive to prevent harassment and retaliation in the workplace.
To end workplace harassment and retaliation, we should implement mechanisms for redress and deterrence. For example, we could require reporting of all workplace sexual assaults should be reported to the federal government. These reports should be posted and visible to the public. Some consequences could include federal contract eligibility by being below a particular threshold with even lower retaliation levels.
Carrie Herschman was elected President of the National Employment Lawyers Association (“NELA”), Illinois Chapter, by its Board of Directors. Her two-year term began January 1, 2018.
The National Employment Lawyers Association (NELA) is the country’s largest organization of lawyers who exclusively or primarily represent employees in cases involving employment discrimination, illegal workplace harassment, wrongful termination, denial of employee benefits, and other employment-related matters. Previously, Carrie Herschman served as NELA/Illinois’ Vice President.
We are pleased to announce that Antoinette Choate and Carrie Herschman were selected as 2018 Super Lawyers by Illinois Super Lawyers Magazine. This is the second year that each has been selected as a Super Lawyer, having both been named Rising Stars for the past several years.
Super Lawyers is a rating service of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement. The multiphase selectionprocess includes independent research, peer nominations and peer evaluations. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement.
The lawyers spend substantial time researching recent employment law developments, many of which are shared here.