Plaintiff Love brought a suit for Title VII race discrimination, alleging that the defendant played and operative role in his termination (he was an employee of a subcontractor), after he and another individual were involved in workplace altercation. The District Court granted defendant's motion summary judgment. The Seventh Circuit affirmed. Love v. J.P. Cullen & Sons, Inc., No. 13-3291 (March 9, 2015).

The Seventh Circuit applied the five-factor test, developed in Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d at 378–79. Those factors are: "(1) the extent of the employer’s control and supervision over the employee; (2) the kind of occupation and nature of skill required, including whether skills were acquired on the job; (3) the employer’s responsibility for the costs of operation; (4) the method and form of payment and benefits; and (5) the length of the job commitment." Id.

The Seventh Circuit found that all of those factors favored finding that subcontractor was true employer, as the record showed that plaintiff received supervision from the subcontractor at the worksite, that the subcontractor issued all paychecks and W-2s, among other things.  

The Seventh Circuit held that the fact that the defendant insisted that plaintiff be removed from worksite or that subcontractor had no other job to place plaintiff did not require different result.

 
 
Unemployment Benefits
Darvin Hooker took on a second job as an unarmed night security guard at O'Hare Airport. A few months later, a supervisor found him asleep on duty and fired him. He applied for unemployment and was denied benefits. Universal Security Corporation v. The Department of Employment Security, 2015 Ill. App. (1st) 133886 (February 18, 2015).

The adjudicator held that Hooker had deliberately and willfully violated Universal’s reasonable policy. On appeal, the referee reversed, ruling that Hooker had not fallen asleep deliberately and willfully, thus, he could claim benefits. Universal appealed to the Board of Review, which affirmed. Universal then sought judicial review, and the circuit court affirmed the Board.

The Illinois Appellate Court affirmed the Board of Review. It held that the record supported the conclusion that Hooker's falling asleep on duty was not deliberate and willful misconduct within the meaning of Section 602(A) of the Unemployment Insurance Act. There were no indications that Hooker previously had fallen asleep on duty, that he realized he was falling asleep, or that he made no efforts to stay awake; and he had no history of work infractions. Thus, Board properly ruled that Hooker was eligible for unemployment benefits, even though employer had reason to fire him for sleeping at work.

 
 
Plaintiff Novak brought suit under the Americans with Disabilities Act and section 502 of the Rehabilitation Act, alleging that defendant failed to accommodate his post-traumatic stress disorder when it terminated him from its doctoral program. The District Court granted the defendant's motion for summary judgment. The Seventh Circuit affirmedNovak v. Bd. of Trustees of Southern Illinois University, No. 14-2663 (February 10, 2015).

The Seventh Circuit held that the record showed that the University had provided reasonable accommodations by giving Novak additional time to complete his tests and by giving him multiple opportunities to retake exams.  Furthermore, the termination did not take place until Novak had failed particular test four times. 

The Seventh Circuit noted that the University owed no special deference to academic decisions under discrimination statutes.  However, it held that academic judgments are often based on subjective judgments about academic abilities, which are protected by the First Amendment. Here, Novak failed to show that his evaluators were not involved in bona fide professional assessment of his academic potential.

 
 
Spiral clock retaliatory timing
Plaintiff Carter brought suit alleging that his employer failed to appoint him to acting department chair of the Department of Accounting and Finance in retaliation for Carter taking FMLA leave of absence. Chicago state moved for summary judgement and the District Court granted defendant's motion. The Seventh Circuit affirmed. Carter v. Chicago State University, No. 13-3367 (February 11, 2015).

The Seventh Circuit held that Carter could could not establish necessary causal connection where there was 7-month gap between his return from FMLA leave of absence and date of appointment to acting department chair. Furthermore, fact that the decision-maker selected a second individual over Carter for a different appointment to same position did not create an inference of retaliatory animosity. Finally, Carter failed to present any evidence showing that he was equally or more qualified than person who was selected for the position. 


 
 
Retaliation:
Linzie Ledbetter filed suit under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 against his former employer, Good Samaritan Ministries, alleging that his former employer fired him for having filed second EEOC charge of discrimination against it, not for alleged intimidation of co-workers and residents of shelter. Ledbetter v. Good Samaritan Ministries, No. 14-2822 (February 6, 2015).

The District Court granted the former employer’s motion for summary judgment.  The Seventh Circuit revered and remanded.

The Seventh Circuit held that while the former employer asserted that the decision to fire Ledbetter was made five days prior to receiving notice of EEOC charge, the record showed that Ledbetter was in fact fired one day after his supervisor had become aware of his EEOC charge, and defendant produced no documentation that termination decision was made at earlier time. Furthermore, the former employer offered no evidence to explain why it waited six days to actually fire Ledbetter if in fact termination decision had occurred at that time.


 
 
NLRB: McDonald's Joint Employer
The National Labor Relations Board (NLRB) announced that it issued complaints against McDonald's franchisees and their Franchisor, McDonald's USA, LLC as a joint employer. 

It brought 13 complaints involving 78 charges against McDonald’s out of several regional offices throughout the United States including Chicago for claiming that McDonald's and its franchisees subjected employees who participated in union-related activity to discriminatory discipline, reductions in hours, discharges, and other coercive conduct as well as over-broad restrictions on communicating with union representatives or with other employees about unions and the terms and conditions of employment.

To conserve resources and to avoid delay, the NLRB consolidated the hearings to three locations in the Northeast (Manhattan), Midwest (Chicago) and West (Los Angeles) and the initial litigation will commence on March 30, 2015.

The NLRB is asserting that McDonald’s can be liable as a “joint employer” with its franchisees, despite the fact that many of the alleged violations were committed by franchise owners. Of course, McDonald’s requires its franchisees to adhere to a number of rules and regulations.

 
 
Discipline Notice
Sklyarsky sued his former employer, Means-Kraus, for firing him from his janitor position because of his national origin and in retaliation for filing a charge with the EEOC in violation of Title VII and Section 1981. Means-Kraus moved for summary judgment, which the District Court granted. The Seventh Circuit affirmed. Sklyarsky v. Means-Kraus Partners, L.P., No. 13-3302 (January 29, 2015).

Sklyarsky alleged that his supervisor mocked his mixed use of Ukrainian and Polish in front of his co-workers. The record showed, and he did not dispute, that he incurred five reprimands including two suspensions in less than three years. Therefore, he failed to establish that he was meeting Means-Kraus' legitimate employment expectations. The Seventh Circuit held that that failure doomed his discrimination claim under the indirect method of proof. Furthermore, he failed to provide evidence of similarly-situated employees being treated more favorably. 

Sklyarsky also could not establish his retaliation claim as his only evidence of retaliation was a 6-month gap between his complaint of discrimination and his termination.

 
 
Taxes as Title VII Remedy
The EEOC brought suit alleging that an employee was fired in retaliation for making discrimination complaint in violation of Title VII. EEOC v. Northern Star Hospitality, Inc., No. 14-1660 (January 29, 2015). The original employer dissolved and two companies Properties and Holdings had emerged, which were exclusively owned by defendant’s owner and employed over half of defendant’s employees. There was a bench trial on whether the new entities could be held liable for Hospitality's actions. It ruled that there was liability under two theories (1) piercing the corporate veil and (2) successor liability.

The jury trial then commenced and Miller was award compensatory damages. The jury did not award punitive damages. The court denied front pay, but granted pack pay and tax-component awards. The only question on appeal was what remedies were available to make the employee whole.

The Seventh Circuit held that the District Court did not err in finding that two entities controlled by defendant-employer’s owner could be held liable under successor liability principles for plaintiff’s damages, and that plaintiff was also entitled to additional damages associated with increased tax liability resulting from receipt of back-wage award as the record supported the District Court’s finding that Miller's receipt of lump sum $43,500 back pay award would bump him into higher tax bracket than what he would have been paid had he received said wages evenly throughout time of lawsuit.


 
 
On January 14, 2015, the Illinois Appellate Court affirmed a jury verdict in favor of the defendant in a state court age discrimination lawsuit brought under the Illinois Human Rights Act (IHRA).  Cipolla v. Village of Oak Lawn, 2015 IL App (1st) 132228.  

Employee Cipolla filed a charge of discrimination with the IDHR and then a state court complaint in Cook County, alleging that the Village fired her because of her age in violation of the IHRA.  After a four-day trial, the jury returned a verdict in favor of the Village.

Cipolla appealed, arguing (1) that the trial court should have given the jury a "cat's paw" liability jury instruction.  The Appellate Court held that
 there was no evidence that the decision-maker blindly relied on a non-discision maker manager in connection with his employment decision to terminate the plaintiff or that the non-decision maker had a discriminatory intent. Thus, the cat's paw jury instruction was unwarranted and the trial court did not err in refusing to give it.

Cipolla also argued (2) that the trial court erred by refusing to clarify for the jury the meaning of the word "fired."  While the jurors were deliberating, they requested that the judge define the term "fire."  The trial judge held that it was a factual question and instructed the jury to resolve its questions by reviewing the evidence and referring to the jury instructions.  The Appellate Court agreed. 

Finally, the Appellate Court found that the jury instructions approved by the trial judge accurately and sufficiently stated Illinois law on the elements a plaintiff is required to prove to win an employment discrimination case.  Illinois Pattern Jury Instructions provide that the plaintiff has the burden to prove: (1) that the plaintiff was an employee of the defendant; (2) that the plaintiff was fired from her employment with the defendant; (3) that the plaintiff was fired because of her age (or other protected classification); and (4) that the plaintiff sustained damages as a result her firing.

 
 
Chess pieces
Greengrass filed an EEOC charge, the employer was notified, and then around January 2009, the employer received a notice that the EEOC intended to interview witnesses in connection with Greengrass' claim. On April 6, 2009, in its next SEC filing, the employer identified Greengrass and her charge in the pending litigation section of the report. It stated that she had filed a complaint, but the employer believed it to be meritless. Greengrass filed another EEOC charge, for retaliation based on the employer naming her in its SEC filing and later filed her lawsuit.

The district court granted summary judgment in favor of the employer on the basis that the Greengrass failed to establish a causal connection between her EEOC filing and the alleged retaliation. The 7th Circuit reversed, finding that Greengrass established a claim for retaliation as there was enough evidence for a jury to conclude that there was a causal connection. Greengrass v. International Monetary Systems, Ltd., No. 13-2901 (7th Cir., 1-12-2015).

The Seventh Circuit held that:
(1) Greengrass engaged in a protected activity by filing her charge.
(2) Listing her name as a litigant in publicly available filing is adverse employment action as post-termination retaliation that harms an employee's employment prospects is unlawful and an employee's decision to file a charge could be negatively viewed by prospective employers.
(3) A reasonable jury could conclude that the employer retaliated against Greengrass after receiving of the witness interview notice. The three-months between the notice and filing was close enough to be suspicious. Further, there was evidence of retaliatory animus in (a) an email from the employer that expressed disdain for the EEOC process and against Greengrass for filing her complaint and (b) inferred from the company's decision to forward the plaintiff's complaint to her alleged harasser. Finally, evidence of pretext existed as multiple shifts in the company's SEC filing policy raised doubt about the company's reasons for its employment decision.
Thus, summary judgment was inappropriate.