Police Officer
Police officer sued his former employer for violating Title VII when it fired him in retaliation for his testifying on behalf of African-American police officers in a race discrimination investigation. Hardin v. Marion County Sheriff's Dept., No. 14-1713 (7th Cir., August 25, 2015). The District Court granted defendant's motion for summary judgment and the Seventh Circuit affirmed.

The Seventh Circuit held that the record showed that the officer was fired after conducting an extensive investigation into a prisoner complaint that someone had stolen $100 during his arrest. Further, the officer failed to show that defendant did not honestly believe results of its investigation, which, according to defendant, indicated that plaintiff, as arresting officer, was most likely responsible for the theft. 

The fact that the officer had been cleared of the theft accusation by a separate criminal investigation or that the officer was subjected to unfavorable schedule and work assignments after he gave a statement in race discrimination investigation did not require different result because: (1) the officer failed to show that individuals responsible for change in schedule or job assignments played any role in the decision to fire him; and (2) there was some evidence suggesting that the officer might have been responsible for the theft.

School bus
Plaintiff Preddie sued his former employer under the ADA, Title VII, and FMLA alleging that the school fired him from his teaching position because of his disability, race, and FMLA use. Preddie v. Bartholomew Cons. School Corp., No. 14-3125 (7th Cir. August 24, 2015). The school moved for summary judgment, which the District Court granted. The Seventh Circuit affirmed as to the ADA and Title VII claims, but reversed as to the FMLA claims.

The Seventh Circuit held that Preddie failed to show that he made any accommodation request and could not establish that he was "qualified individual" under the ADA, because his attendance problems precluded him from performing the essential functions of his job. Furthermore, Preddie could not establish an ADA retaliation claim as his periodic requests for time off to attend to his health issues did not qualify as "protected activity" under ADA. Finally, Preddie could not establish a Title VII race discrimination claim, where he could not show that (1) he had met the school's legitimate performance expectations, or (2) that the school treated other teachers with similar attendance problems in more favorable fashion. 

However, the Seventh Circuit held that the District Court erred in granting the school's motion for summary judgment on Preddie's FMLA claims where the school's stated reasons for its failure to renew Preddie's teaching contract were related to his absences that were caused by his FMLA-qualifying condition.

On August 17, 2015, the National Labor Relations Board (NLRB) threw out a historic ruling that allowed Northwestern University football players to form the nation's first college athletes' union.

The old decision from March 2014, held that football players are effectively school employees and entitled to organize. However, the new decision did not directly address the question of whether players are employees. 

Instead, the unanimous decision said the prospect of union and nonunion teams could throw off the competitive balance in college football by leading to different standards at different schools. Further, unionizing would not promote the "uniformity" and "stability" between workers and management, which it contents is the goal of U.S. labor relations law. Notably, the ruling applies to private schools, not public universities.

Fitness for duty exam ADA
Plaintiff-employee sued alleging that her former employer violated the Americans with Disabilities Act (ADA) by requiring her to undergo an unnecessary fitness-for-duty examination that resulted in her being forced to retire. Wright v. Ill. Dept. of Children and Family Services, Nos. 13-1552 & 13-1553 Cons. (7th Cir., August 14, 2015). The District Court granted the employer's motion for judgment as a matter of law and the Seventh Circuit affirmed.

The Seventh Circuit held that the record showed that the employer had ordered the examination after learning of reports of misconduct involving plaintiff's supervision of one of defendant's wards. The plaintiff failed to show - for purposes of her constructive discharge claim - that her working conditions had become intolerable at time she announced her retirement in terms of defendant demonstrating intent to immediately terminate plaintiff. The Seventh Circuit further noted that the employer had not told the plaintiff that she would be fired and had not actually decided to fire the plaintiff at time it ordered plaintiff to undergo fitness-for-duty examination. 

The fact that the plaintiff had refused multiple requests to undergo fitness-for-duty examinations, that defendant had initiated disciplinary proceedings arising out of said refusals, or that plaintiff may have been discharged at conclusion of disciplinary proceedings did not require different result.

Your'e fired
Employee Miller sued claiming her former employer fired her because of her race and in retaliation for having made prior discrimination complaint in violation of Title VII. Miller v. Polaris Laboratories, LLC, No. 14-2621 (7th Cir. August 13, 2015). Polaris moved for summary judgment and the District Court granted it. The Seventh Circuit reversed and remanded.

The Seventh Circuit found that while Miller consistently failed to meet her production quota (which supported Polaris' explanation for her termination), Miller presented some evidence that individuals who harbored racial animosity had either tampered with plaintiff's work product or failed to properly train her, which, according to plaintiff, accounted for her failure to meet applicable quota. Miller also presented evidence that she was assigned more difficult work that also played factor in her reduced production. Thus, the ruling was reversed and remanded.

Carrie A. Herschman
Carrie Herschman has been selected as a 2015 Emerging Lawyer by the Law Bulletin Publishing Company.

Emerging lawyers are selected based on surveys sent to all lawyers in the state. The lawyers most often recommended in the surveys are reviewed by an Advisory Board which selects the Leading and Emerging Lawyers. Emerging Lawyers are those will be age 40 or under or are practicing law for 10 years or less as of July 31, 2015. Less than 2 percent of all lawyers in the state receive this distinction.

Congratulations Carrie on this distinction!

Adjunct professor sued under the Americans with Disabilities Act (ADA), alleging that his teaching assignments were given to others because of his perceived health condition. Silk v. Board of Trustees, Moraine Valley Community College, No. 14-2405 (7th Cir. July 30, 2015). The college moved for summary judgment and the District Court granted the motion.  The Seventh Circuit affirmed and reversed in part.

The Seventh Circuit held that while plaintiff was forced to take leave of absence that was related to his heart condition in spring of 2010, the reassignment of his summer school courses did not violate ADA where: (1) plaintiff never advised defendant of possible return date following his leave of absence; and (2) decision-maker merely regarded plaintiff as being "absent," as opposed to being disabled, during relevant scheduling period when final decisions had to be made regarding summer school assignments. 

However, the Seventh Circuit also held that the District Court erred in granting defendant's motion for summary judgment with respect to plaintiff's reduced fall 2010 teaching schedule, as the plaintiff raised a factual dispute as to whether decision-maker stated that reduced schedule was based on belief that plaintiff could not physically handle normal teaching assignments.

The 7th Circuit also stated that whether mixed-motive claims are actionable under the ADA, after its 2008 Amendments, is an open question for a future decision.

Non-Solicitation Agreement, Non-Compete, Restrictive Covenant
Defendant, former employer, sued its former employee for a preliminary injunction enforcing restrictive covenants contained in plaintiff's employment contract with defendant. Turnell v. Centimark Corp., No. 14-2758 (7th Cir. July 29, 2015). The non-solicitation and non-compete provisions prohibited the plaintiff from soliciting defendant's actual and prospective clients or from being employed by defendant's competitor for two years.  The District Court entered the injunction. The Seventh Circuit affirmed.

The Seventh Circuit held that the record showed likelihood that the covenants could be enforced against plaintiff (who had become employed by one of defendant's competitors) if those covenants were limited to the plaintiff selling only specific products that defendant sold, and if the plaintiff was precluded only from selling said products to defendant's actual customers in actual region that defendant had managed while working for defendant. Additionally, the defendant had legitimate interest in preventing the plaintiff, as former high ranking manager, from using defendant's customer relationships and proprietary business information for competitor's benefit. The Court further noticed that the fact that the covenants were in fact too broad did not require that District Court void those covenants in their entirety instead of limiting their scope.

U.S. Veteran
Private employers in Illinois can now give preference to veterans when hiring new workers.

Gov. Bruce Rauner signed the Veterans Preference in Private Employment Act into law on July 28, 2015. The new Illinois law permits private employers to voluntarily adopt hiring policies that give preference to those who served in the military, whether on active or reserve duty, including the Illinois National Guard. 

The employer's veterans preference policies must be in writing and publicly posted at the workplace or on the employer's website, as well as on job applications.

A similar state law is already in place for public employers.

Plaintiff police detective brought a claim  against his former employer for  failure to accommodate him under the Americans with Disabilities Act of 1990, as amended. Swanson v. Village of Flossmoor, No. 14-3309 (7th Cir. July 24, 2015). The District Court granted summary judgement for the employer and the 7th Circuit affirmed.

The record showed that the plaintiff suffered two strokes. After the first, he requested a reasonable accommodation under the ADA (working a desk job). Flossmoor provided him with a reasonable accommodation (allowing him to use his paid time off to work part-time, per his physician's instructions). After the second stroke, he was unable to perform his essential job duties and resigned. Thus, the 7th Circuit held that his failure to accommodate claim was without merit. The employer reasonably accommodated  him after his first stroke. Because he was unable to perform his essential job functions after his second stroke, the employer was no longer required to accommodate him.

The plaintiff had also filed other discrimination claims under Title VII. However, they were time-barred because his Charge of Discrimination had not been filed with theEEOC within 300 days.