Tuesday, February 10, 2015

EEOC Releases Fiscal Year 2014 Enforcement and Litigation Data

It's available here.  From the EEOC press release on the 2014 data:

The number of charges filed decreased compared with recent fiscal years, due in part to the government shutdown during the reporting period. While charge filings were down overall compared to the previous fiscal year, first quarter charge filings--which included the period of the shutdown--were 3,000 to 5,000 less than the other quarters.

Among the charges the EEOC received, the percentage of charges alleging retaliation reached its highest amount ever: 42.8 percent. The percentage of charges alleging race discrimination, the second most common allegation, has remained steady at approximately 35 percent. In fiscal year 2014, the EEOC obtained $296.1 million in total monetary relief through its enforcement program prior to the filing of litigation.

The number of lawsuits on the merits filed by the EEOC's Office of General Counsel throughout the nation was 133, up slightly from the previous two fiscal years. A lawsuit on the merits involves an allegation of discrimination, compared with procedural lawsuits, which are filed mostly to enforce subpoenas or for preliminary relief. Monetary relief from cases litigated, including settlements, totaled $22.5 million.

More specifically, the charge numbers show the following breakdowns by bases alleged in descending order.
  • Retaliation under all statutes: 37,955 (42.8 percent of all charges filed)
  • Race (including racial harassment): 31,073 (35 percent)
  • Sex (including pregnancy and sexual harassment): 26,027 (29.3 percent)
  • Disability: 25,369 (28.6 percent)
  • Age: 20,588 (23.2 percent)
  • National Origin: 9,579 (10.8 percent)
  • Religion: 3,549 (4.0 percent)
  • Color: 2,756 (3.1 percent)
  • Equal Pay Act: 938 (1.1 percent) but note that sex-based wage discrimination can also be charged under Title VII's sex discrimination provision
  • Genetic Information Non-Discrimination Act: 333 (0.4 percent)
  Here is the data for Charges filed in Wisconsin.

EEOC Loses Pattern-or-Practice Claim, Allowed to Pursue Individual Prayer Break Religious Discrimination Claims

In April 2011, the Equal Employment Opportunity Commission ("EEOC") filed a joint Bifurcation Agreement to bifurcate discovery and trial into two (2) phases:  Phase I involved the EEOC's pattern-or practice claims, and Phase II were for all individual claims for relief, and "[a]ny claims for which no pattern or practice liability was found in Phase I and any claims not tried in Phase I shall be tried under the traditional McDonnell-Douglas burden-shifting paradigm [in Phase II], including all claims of harassment/hostile work environment, as well as "[I]ndividual entitlement to back pay, compensatory, and punitive damages."

A trial was held on the EEOC's pattern or practice claims May 7-17, 2013.  At the close of evidence, the defendant, JBS USA, LLC ("JBS"), made an oral motion for judgment on partial findings pursuant to FRCP 52(c) and the Court concluded that although the EEOC established a prima facie case of denial of religious accommodation, the requested accommodations imposed an undue burden on JBS.  Thus, JBS argued that the Court's Findings of Fact and Conclusions of Law in Phase I preclude the individual Plaintiffs from pursuing claims of religious discrimination and retaliation in Phase II. 

In arguing for issue preclusion, JBS pointed out that the Court found that (a) JBS did not discipline or discharge any of its Muslim employees for praying, and (b) Somali-Muslim employees who left the plant the night of September 18, 2008, were terminated for withholding work and violating the Collective Bargaining Agreement ("CBA").  Thus, JBS asserted, these findings establish that its reason for terminating the employees was legitimate and nondiscriminatory, and preclude Plaintiffs from pursuing claims that they were terminated or otherwise retaliated against for requesting religious accommodation.  Furthermore, because the Court concluded the Plaintiff's requested religious accommodations would impose an undue hardship on JBS, JBS argued that they did not unlawfully deny Plaintiffs' requested religious accommodations.

Issue Preclusion

The opinion obviously discussed the 5 elements a party must show in order for issue preclusion to be found.  The Court then found that (1) the EEOC and the Individual Plaintiffs were in privity during Phase I, (2) the issue raised in the second proceeding was raised in the first proceedings by the party sought to be precluded and the fact that Phase II is to be analyzed under a different analytical framework (Teamsters pattern or practice analysis vs. McDonnell Douglas framework) has no bearing on whether issue preclusion apples, (3 & 5 were discussed jointly)  the issue of undue hardship were fully-litigated in Phase I and will not be re-litigated in Phase II.  However, with respect to employee discipline and reasons for termination, the Court held that they did not make a thorough and meaningful assessment of whether any Plaintiff suffered an adverse employment action as the result of discrimination or retaliation, because such claims were outside the scope of Phase I. 

Failure to Conciliate

JBS moved for summary judgment to dismiss the EEOC's three Phase I pattern or practice claims on the grounds the EEOC had failed to satisfy the conciliation requirement prior to bringing the lawsuit as case law and statute states, "The EEOC may bring a direct suit against an employer only after it has attempted to conciliate in good faith but failed to reach an agreement."  EEOC v. Trans State Airlines, Inc., 462 F.3d 987, 996 (8th Cir. 2006) (citing 42 U.S.C. sec. 2000e-5(f)(1); Johnson v. Nekoosa-Edwards Paper Co., 558 F.2d 841, 848 (8th Cir. 1977)).  The Court found that the EEOC's conciliation efforts allow it to avoid dismissal.

The Court also noted that since the time the Court first considered this issue, a circuit split has arisen as to whether failure to conciliate is an affirmative defense and the Supreme Court has granted certiorari on the question of "[w]hether and to what extent may a court enforce the EEOC's mandatory duty to conciliate discrimination claims before filing suit?"  Thus, the Court decided not to resolve the issue at this time, but did not preclude JBS from reasserting its position after the Supreme Court issues its opinion in Mach Mining, LLC v. EEOC.

The case is EEOC v. JBS USA, LLC, No. 8:10-CV-318 (D. Neb. Jan. 28, 2015),

Monday, February 2, 2015

Former Walgreen's Employee Who was Told "Go Work with Own Kind at 7-11" Allowed to Advance Claims

In a federal case out of the Northern District of California, a former store manager for popular retailer and pharmacy, Walgreen's, was allowed to advance his age and national origin discrimination claims after the Court found that the plaintiff, Hassen Almaweri, "rasied a triable issue of fact as to his prima facie case and as to pretext."

This case is relatively interesting because the Opinion spends 10 of its 19 pages discussing the facts alone as this case was drenched in facts that were dispositive in Walgreen's motion for summary judgment.  As I often tell clients who telephone me inquiring about whether they have meritorious claims for discrimination: "the devil is often in the details."

Almaweri, prior to his termination, was allegedly having performance issues as evidenced by disciplines and a performance improvement plan ("PIP") he was issued, but Almaweri was also able to show that his stores were performers. This helped him show that not only was he "performing the job to the employer's reasonable expectation," but helped him show pretext.  Further helping him show pretext was the disputed fact that Almaweri's 'Community Leader' reportedly told him to go work at "7-Eleven" with his "kind of people."

It's clear extensive and 'smart' discovery was engaged as the Plaintiff was able to unveil several areas where he was performing his job well/above-par compared to similarly-situated employees, yet got fired after working for Walgreen's for over 20 years while other managers performed worse and received higher marks in their evaluations despite receiving similar remarks.  The Opinion took great effort to discuss these evaluations and performance evaluations.

The case is Almaweri v Walgreen Specialty Pharmacy, LLC, January 26, 2015, (NDCal, Laporte, E.) and worth the 19-page read.