Heyl Royster

 


Heyl Royster

 

Recent Developments in the Courts

5/22/14

Title VII Claim Against Union: Prima Facie Case Is Not Tied to a Breach of Duty or Statutory Violation

Green v. American Federation of Teachers/Illinois Federation of Teachers Local 604, 740 F.3d1104 (7th Cir. 2014)

In 2010, Mr. Robert Green was fired as a teacher at Aurora East School District 131. After his termination, Mr. Green asked his union to pursue a grievance under the collective bargaining agreement and his union refused. Mr. Green also asked his union to represent him in a lawsuit against the school district under the Teacher Tenure Act. See 105 ILCS 5/24-12 (West 2013). Once again, the union refused. As a result of the union's inactions, Mr. Green sued the school district on his own and won. Ultimately Mr. Green was reinstated as a teacher. He then filed a subsequent action in federal court claiming his union abandoned him due to his race in violation of the Civil Rights Act of 1964. 42 U.S.C.A. § 2000e-2(c)(West 2013).

The union had a reason for not wanting to help Mr. Green in his lawsuit: Mr. Green had previously sued the union over other actions where race discrimination was a key element. As a result of these prior claims by Mr. Green against his union, the union decided it would no longer take his side in any action against the school district. Because the earlier dealings between him and his union definitively related to his complaints of racial discrimination, the union's choice not to represent him in his racial discrimination lawsuit against the school district constituted an act of retaliation.

The district court, via a summary judgment, found for the union and against Mr. Green. It reasoned it could not find the union liable to Mr. Green under Title VII unless it violated a duty created by contract or statute, other than an anti-discrimination law. Thus, the district court decided Mr. Green failed to establish a prima facie case. The court relied on language from Greenslade v. Chicago Sun-Times, Inc. in deciding that the union did not violate a statute or contract in refusing to represent Mr. Green. See 112 F.3d 853 (7th Cir. 1997).

However, the Seventh Circuit noted this language was dictum, so it could not reasonably be relied upon as persuasive in this case. It vacated the lower court's summary judgment decision and remanded the case back to the district court to allow Mr. Green to proceed with discovery on his federal action against the union.

The Seventh Circuit found that the district court's decision to grant summary judgement amounted to the conclusion that Mr. Green could not succeed under any factual circumstance, even if the evidence indicated the union had blatantly discriminated against him. The Seventh Circuit disagreed with the district court's rationale that "[a] union cannot be liable under Title VII unless it first violates a duty created by statute or contract." Green, 740 F.3d at 1105.

The Seventh Circuit analogized the court's decision in Green to a job applicant being rejected due to his race. Most people would agree that this job applicant would be a victim who could recover under Title VII. Similarly, firing an employee due to his race violates Title VII even if the firing did not violate a separate statute or contract, like an employment contract. The Seventh Circuit reasoned that the district court's logic meant that an employer would not be liable under Title VII unless he violated a contract or statute.

The Seventh Circuit found that the union violated Title VII by not representing Green because it determined that the union would have assisted a white employee or an employee who had not complained about the union's discrimination. Based on this premise, the Seventh Circuit vacated the summary judgment and remanded the case back to the district court level to allow Mr. Green to proceed with discovery in his federal action against the union.

Seventh Circuit Goes It Alone On Conciliation Process

E.E.O.C. v. Mach Mining, LLC, 738 F.3d 171 (7th Cir. 2013)

In 2008, the Equal Employment Opportunity Commission (EEOC) received a discrimination charge from a woman claiming Mach Mining denied her application for employment at a coal mine due to her gender. After investigating the charge, the EEOC determined there was reasonable cause to believe Mach Mining had indeed discriminated against female job applicants. In 2010, the EEOC notified Mach Mining of its intention to begin informal conciliation. Although the parties did discuss a possible resolution of this claim, no agreement was ultimately achieved. In 2011, the EEOC told Mach Mining it had determined the conciliation process had been unsuccessful and therefore further efforts would be futile. This resulted in the EEOC filing its complaint in the district court shortly thereafter.

Mach Mining, in its answer to the EEOC complaint, denied unlawful discrimination and also asserted several affirmative defenses. The key affirmative defense pled, the subject of this current appeal, is the allegation the lawsuit should be dismissed because the EEOC failed to conciliate in good faith. Based upon the affirmative defense set forth by Mach Mining, the EEOC moved for summary judgment solely on the issue of whether it, as a matter of law, failed to conciliate. The district court, following the precedent of the Second, Fourth, Fifth, Sixth, Eighth, Tenth and Eleventh Circuits, ultimately denied the motion, although it certified the question for interlocutory appeal. The key question on appeal was whether an alleged failure to conciliate is subject to judicial review in the form of an implied affirmative defense to the EEOC's lawsuit.

The Seventh Circuit considered four key issues when determining and evaluating whether Defendant Mach Mining had a viable affirmative defense based upon the EEOC's failure to conciliate: the statutory language, whether there was a workable standard for such a defense, whether the defense might fit into the broader statutory scheme, and the relevant case law. The first element the Seventh Circuit focused on was whether Title VII contains express language or provisions for an affirmative defense based upon an alleged defect in the EEOC's conciliation efforts. The answer to that question was no as there is no express provision on this point. The court found that the conciliation process is an informal one entrusted solely to the EEOC's expert judgment and that process is to remain confidential, thus resulting in deference provided to the EEOC.

It is the Seventh Circuit's position that an alleged affirmative defense for failure to conciliate conflicts directly with the confidentiality provision of the conciliation process. The conciliation process is triggered after the EEOC receives a charge of discrimination, and an initial investigation is conducted to show whether reasonable cause exists to support the allegations made by the aggrieved employee. The Seventh Circuit also noted there is a complete lack of any meaningful standard to apply as it relates to the asserted failure-to-conciliate defense which Mach Mining attempted to assert. Title VII says nothing about what methods the EEOC is to follow. The statute gives no description or outline of what needs to be followed in any settlement negotiations. The only element focused upon in this statutory language is having the discriminatory conduct stopped. The Seventh Circuit also focused upon the EEOC's power in making a determination whether or not the employer discriminated. The court considered this such an open-ended provision that putting any judicial reviewable constraints on it would run afoul of the statutory construction and purpose.

The Seventh Circuit also found that allowing Mach Mining's defense would undermine the purpose and enforcement of Title VII. Specifically, such an affirmative defense would be giving too much power to employers to focus on the conciliation process and consequently avoid dispute resolution. The court determined that the statutory provisions' purpose was to encourage the parties to reach an amicable resolution of the matter in dispute and not get bogged down in informal endeavors.

Ultimately, the Seventh Circuit found the affirmative defense that the EEOC failed to conciliate in good faith was not a viable defense. Thus, the Defendant Mach Mining could not assert this in the underlying lawsuit. This decision ultimately gives more power and discretion to the EEOC because it provides no judicial oversight or review on the EEOC's conciliation process.

There is now obviously a split in the circuits. The Seventh Circuit made a decision that goes against its sister courts who permit this defense. This ruling substantially increases the likelihood the United States Supreme Court will get involved and weigh in on this issue. In the meantime, employers located within the states of Illinois, Wisconsin and Indiana, who are sued by the EEOC, may no longer rely upon the defense that the EEOC has failed to conciliate.

Seventh Circuit Avoids Determining Whether the ADEA Authorizes "Mixed Motives" Claims by Federal Employees

Reynolds v. Tangherlini, 737 F.3d 1093 (7th Cir. 2013)

James Reynolds was 62 years old and employed by the U.S. General Services Administration (GSA). Mr. Reynolds alleges the GSA passed him over for a promotion in favor of a 32 year old GSA employee. As a result, Mr. Reynolds sued the GSA alleging discrimination on the basis of age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633(a) and alleging discrimination on the basis of race and sex under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-16. He also alleged claims of retaliation in violation of both the ADEA and Title VII.

The district court disposed of the retaliation claims via summary judgment, and Mr. Reynolds dropped his claims of racial and sex discrimination. After a three-day bench trial, the district court rejected the age discrimination claim for lack of evidence and refused to allow Mr. Reynolds to amend his complaint to add new claims. Mr. Reynolds appeals from the findings made by the district court.

The Seventh Circuit had to consider the key question of whether the ADEA's federal-sector provision, 29 U.S.C. § 633(a), requires a plaintiff to prove that age was the "but-for" cause of the challenged personnel action. Mr. Reynolds argued it did not, claiming that § 633a authorizes "mixed motives" for claims. The GSA argued that the district court's findings defeat the age discrimination claim regardless of whether a "but for" or the more lenient "mixed motives" standard applies. The Seventh Circuit agreed with the GSA's argument.

Mr. Reynolds had 30 years of experience with the GSA, and he applied for a position as a Building Manager. However, another GSA employee, a 32-year-old, was picked over Mr. Reynolds and three other candidates. These three other candidates were also older than the individual who was hired as the Building Manager.

The court determined the Supervisory Property Manager ultimately made the decision about who would be hired as the Building Manager. The hiring manager relied upon the Supervisory Property Manager's knowledge and experience working with the five candidates, as well as reviewing their resumes, education, and specialized experience/abilities.

The district court found the employer did not discriminate against the employee on account of his age when Mr. Reynolds was not promoted to the position of Building Manager. The Seventh Circuit held the trial court properly relied upon testimony of the key decision-maker wherein it was noted the position required strong interpersonal skills. In this case, the individual who was hired for this position was found to have better interpersonal skills than Mr. Reynolds based upon that individual's track record of working well with co-workers. The Seventh Circuit also stated that Mr. Reynolds' claim that the decision-maker violated the collective bargaining agreement by improperly interviewing the successful candidate without interviewing others did not constitute evidence of age discrimination. Therefore, the Seventh Circuit affirmed the findings of the district court in favor of the defendant employer.

The Seventh Circuit agreed with the GSA's argument that the causation question was improperly before it. As noted above, Mr. Reynolds believed the causation factor should be the "mixed motives" standard, and not the "but for" cause. Based upon the facts of this case, the court indicated it would not have to address the causation issue since the evidence and testimony of the decision-maker was sufficient to show there was no age discrimination. Thus, the appropriate legal standard to utilize in federal sector age discrimination cases remains an open issue within the Seventh Circuit.