EEOC-Initiated Litigation - 2022 Edition

64 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP Defendant retaliated against Kellogg in violation of Title VII of the Civil Rights Act of 1964. Specifically, the EEOC alleged that Defendant disciplined Kellogg after she filed an EEOC charge alleging race discrimination. The parties' cross-moved for summary judgment pursuant to Rule 56(a). The Court found that genuine issues of material fact existed with respect to the EEOC's claim, and denied the parties' motions. The Court found that there was direct and circumstantial evidence that Kellogg's protected activity motivated Defendant to take adverse action against her. At the very least, the Court concluded that the EEOC had shown a causal connection between Kellogg's EEOC filing and her suspension. Defendant nevertheless maintained it suspended Kellogg because of her continued resistance to adhering to the Defendant’s licensing requirements and the lack of integrity displayed by her misleading actions and statements related to the New York licensing exam. The Court agreed that this was a legitimate, non- retaliatory reason to support the adverse employment action against Kellogg. As such, the Court turned to the issue of pretext. The Court opined that the EEOC presented evidence to create a genuine issue of material fact as to whether Defendant’s reason for suspending Kellogg was a pretext for unlawful retaliation. First, for over a year and a half, the licensing requirement was in place, but nevertheless, Kellogg did not complete the New York or California exam. Yet, Defendant took no action against Kellogg or any other Claims Examiner who had not passed all the required exams during that time. It was only after Kellogg's protected activity that Defendant decided that she was not taking the requirement seriously and thereby suspended her. In addition, a few months prior to Kellogg's suspension, and before she filed her EEOC charge, her supervisors had rated Kellogg’s performance as "Exceeds Expectations" and "Exceptional Performance.” Id . at *23. Thus, the Court reasoned that this suggested that Kellogg's claimed procrastination in satisfying the licensing requirement was insufficient to motivate the adverse employment action against her. Second, Claims Examiners previously failed licensing exams without reprisal or a demand to see the results. As a result, the Court concluded that a reasonable jury could find that Defendant’s reasons for suspending Kellogg were pretextual. The Court opined that this was also supported by the fact that email exchanges by Kellogg’s superiors that preceded the adverse employment action manifested a scheme to find "an opportunity" to discipline her. Id. Accordingly, the Court ruled that Defendant’s claim that her failure to take the New York exam was a legitimate, non-retaliatory reason to support is adverse employment action against Kellogg must be resolved by the finder of fact. For these reasons, the Court ruled that neither party was entitled to summary judgment on the EEOC's retaliation claim. EEOC v. DHL Express (USA), Inc. , No. 10-CV-6139 (N.D. Ill. Dec. 30, 2021). The EEOC filed an action on behalf of 83 Black truck drivers alleging that Defendant assigned them to more dangerous or demanding routes, tasked them with more arduous dock work, and segregated them from white drivers in violation of Title VII of the Civil Rights Act (“Title VII”). Id. at 2. Twenty-one of the drivers intervened and additionally asserted a claim under 42 U.S.C. § 1981. Defendant moved for summary judgment as to the EEOC’s claims as well as the intervenors’ individual claims. The Court granted in part the motion as to several intervenors’ individual claims, and denied the motion as to the EEOC’s claims and the remaining intervenors’ claims. Defendant’s drivers typically picked-up and delivered parcels along routes within certain service areas. They also perform dock assignments such as loading, unloading, and sorting freight and letters. The EEOC and the intervenors claimed that white employees were rarely assigned the hard manual labor that Black drivers were assigned, and that Black drivers were often moved to the most difficult, dangerous, and least desirable routes at several of Defendant’s locations throughout the state. Defendant contended that neither assigning a driver to a more dangerous or arduous route, nor assigning a driver to more strenuous dock work, was an adverse employment action under Title VII. Defendant argued that as delivering and picking up packages and performing dock work were tasks within the scope of a driver’s duties, a driver did not suffer a materially adverse employment action when the driver was assigned to perform one route or dock task versus another route or task. Id. at 64. The Court disagreed. It determined that when the summary judgment record was viewed in the light most favorable to the EEOC, there was evidence to support a reasonable inference that assigning a driver to a route in a predominantly Black, non-white, higher-crime area was a significantly negative work condition that might fairly be characterized as objectively creating a hardship on the driver. Further, the Court noted that most employees found routes in predominantly Black, non-white, higher-crime areas to be more difficult, and that the drivers offered evidence they were subjected to significantly different working conditions and experiences when they worked on routes in predominantly Black, non-white, higher-crime areas. Id. at 65- 66. Additionally, the Court found evidence to support a reasonable inference that being assigned to a route