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McKenna Employment Bulletin – September 2015

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  • THE EEOC DOES NOT HAVE TO NAME A REJECTED JOB APPLICANT TO BRING SUIT
  • COURT CAN LIMIT THE SCOPE OF A RESTRICTIVE COVENANT
  • TAMPERING WITH AN EMPLOYEE’S WORK PRODUCT AND ASSIGNING DIFFICULT WORK SUPPORTS A TITLE VII ACTION
  • RESULTS OF THEFT INVESTIGATION STOPS A TITLE VII SUIT
  • FAILURE TO REQUEST AN ACCOMMODATION AND BEING AN UNQUALIFIED WORKER STOPS AN ADA SUIT
  • MANUFACTURER IS JOINT EMPLOYER WITH STAFFING AGENCY

 

THE EEOC DOES NOT HAVE TO NAME A REJECTED JOB APPLICANT TO BRING SUIT

In EEOC v. Rosebud Restaurants, Inc., 2015 WL 1594067 (N.D. Ill.), the EEOC brought a claim of intentional discrimination by the employer-restaurant and its 13 related entities for an alleged practice of refusing to hire African Americans because of their race. The EEOC failed to identify any individual job applicant who was rejected based on their race. The EEOC alleged only that a single person who either owned or controlled each of the employer’s entities possessed the intent to discriminate on the basis of race and made that intention known. The Court held that the EEOC was not required to name individuals discriminated against by the alleged practice of ongoing discrimination to state a claim against the employer.
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COURT CAN LIMIT THE SCOPE OF A RESTRICTIVE COVENANT

In Turnell v. Centimark Corp., No. 14-2758, July 29, 2015, 7th Cir., a former employee filed an action seeking a declaration that the restrictive covenants contained in his employment contract did not apply to that employee. The covenant prohibited the employee for a period of two years from soliciting the employer’s actual and prospective clients or from being employed by the employer’s competitor. The record showed that the covenant could be enforced against the former employee who had become employed by one of the Defendant’s competitors. But, the covenant had to be limited to the Plaintiff’s selling of only specific products that the employer sold, and the employee was precluded only from selling those products to the employer’s actual customers in the actual region that the former employee managed while working for the employer. Moreover, the employer had a legitimate interest in preventing the former employee, a former high-ranking manager, from using the employer’s customer relationships and proprietary business information for a competitor’s benefit. The Court ruled that just because the covenants were in fact too broad did not require the Trial Court to void those covenants in their entirety instead of simply limiting their scope.
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TAMPERING WITH AN EMPLOYEE’S WORK PRODUCT AND ASSIGNING DIFFICULT WORK SUPPORTS A TITLE VII ACTION

In Miller v. Polaris Laboratories, LLC, No. 14-2621, August 13, 2015, 7th Cir., a former employee alleged in a Title VII action that the employer terminated the Plaintiff on account of her race and in retaliation for having made a prior discrimination complaint. The records show that the Plaintiff had consistently failed to meet production quotas so as to support the employer’s explanation for her termination. But, the Plaintiff presented some evidence that individuals that harbored racial animosity had either tampered with Plaintiff’s work product or failed to properly train her. The former employee claimed these actions accounted for her failure to meet her applicable quota. The Plaintiff additionally presented evidence that she was assigned more difficult work that also played a factor in her reduced production.
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RESULTS OF THEFT INVESTIGATION STOPS A TITLE VII SUIT

In Harden v. Marion County Sheriff’s Dept., No. 14-1713, August 25, 2015, 7th Cir., a former employee alleged in a Title VII action that the employer terminated the employee from his police officer position in retaliation for testifying on behalf of African-American police officers in a race discrimination investigation. The record showed, however, that the former employee was terminated after the employer conducted an extensive investigation into a prisoner complaint that someone had stolen $100.00 during the prisoner’s arrest. The former employee failed to show that the employer did not honestly believe the results of the employer’s investigation which, according to the employer, indicated that the Plaintiff, as the arresting officer, was most likely responsible for the theft. The Court ruled that the fact that the Plaintiff had been cleared of the theft accusation by a separate criminal investigation or that the Plaintiff was subjected to unfavorable schedule and work assignments, after he gave the statement in the race discrimination investigation, did not require a different result. This was because the Plaintiff failed to show that individuals responsible for the change in his schedule or job assignments played any role in the employer’s decision to terminate the Plaintiff.
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FAILURE TO REQUEST AN ACCOMMODATION AND BEING AN UNQUALIFIED WORKER STOPS AN ADA SUIT

In Preddie v. Bartholomew Consolidated School Corporation, No. 14-3125, August 24, 2015, 7th Cir., the Plaintiff-Employee alleged in a Title VII action that the employer terminated the Plaintiff from his teaching position on account of his disability and his race. However, the Plaintiff failed to show that he made any accommodation requests for purposes of establishing a viable ADA claim. Also, the employee could not establish that he was a “qualified individual” for coverage under the ADA, where his attendance problems precluded him from performing the essential functions of his job. Further, the former employee could not establish any retaliation claim under the ADA because his periodic requests for time off to attend to his health issues were not “protected activity” under the ADA. Finally, the former employee could not establish any race discrimination claim under Title VII. The former employee could not show either that he had performed his job up to the employer’s expectations, or that the employer treated other teachers with similar attendance problems in a more favorable fashion.
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MANUFACTURER IS JOINT EMPLOYER WITH STAFFING AGENCY

In Butler v. Drive Automotive Industries of America, Inc., 2015 WL 4269615 (4th Cir. 2015), a manufacturer was found to be a joint employer with the staffing agency of a female factory worker and, therefore, subject to liability under Title VII for hostile work environment claims. While the staffing agency provided the worker, the manufacturer had a high degree of control over the terms of employment. The manufacturer directed the worker’s termination, supervised the worker, and the employees of the manufacturer and the staffing agency worked side-by-side and performed the same tasks on the same equipment.
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This Employment Bulletin is intended to provide information of general interest and does not constitute legal advice. Readers should consult with their counsel before taking any action based on the information in this publication. All rights reserved. Copyright 2013, McKenna Storer. 

Categories Employment Bulletin Employment Law



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