Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Employment Law (page 1 of 2)

Obstacles to Age Discrimination Claims

Ashley Merritt
J.D. Candidate, 2017
Valparaiso University School of Law

Age discrimination involves the unfair treatment of an employee because of his or her age. By law, it is illegal for employers to discriminate on the basis of age in during decisions about hiring, firing, layoffs, benefits, promotions, and other conditions of employment. However, it can sometimes be very difficult to determine whether an individual was fired as a result of age discrimination. This was the case when principal Lionel Bordelon’s long-running contract was not renewed in 2011.

Bordelon began his career as principal of Chicago’s Kozminiski Community Academy in 1993. Although the Board of Education of the City of Chicago supervises schools in the Chicago school system, the Local School Council is responsible for hiring, evaluating, and renewing contracts for principals in the locality. The Board also employs a Chief Area Officer to supervise principals assigned to his or her certain area.

In the fall of 2009, the Board hired Judith Coates to serve as the Chief Area Officer for Area 15, becoming Bordelon’s supervisor. When she began her job, Coates was handed down a list of “principals to be disciplined” from her predecessor and Bordelon was on this list. In 2010, another principal in the area who was fired by the Board testified that she “just felt that the Board wanted someone younger and brighter.”

A few months later, Coates sent Bordelon a notice of pre-discipline hearing based on several allegations, including failing to respond to a parent issue, failing to schedule a meeting with a parent, and failing to respond to Coates’s email regarding these matters.

After evaluating Bordelon and meeting with the Council, Coates sent another letter to Bordelon in December 2010 reassigning him to home with full pay pending the outcome of an investigation of his alleged misconduct, including: (1) improperly replacing asbestos-containing tile at the school; (2) purchasing irregularities; and (3) tampering with school computers in a way that prevented access to school records by the Board. The general counsel for the Board also said that he was prepared to dismiss Bordelon depending on the results of the investigation.

In January 2011, the Council voted not to renew Bordelon’s employment contract based on several reasons, such as Bordelon’s failure to provide adequate principal reports, low evaluation scores, not satisfying the requirements for a safe and effective school, low test scores, and disciplinary problems.

On February 28, 2011, Bordelon submitted his official notice of retirement which became effective in June at the end of his non-renewed contract. Nine months later, he filed suit against the Board, claiming discrimination on the basis of age. He was 63 years old at the time.

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against anyone who is 40 and older. 29 U.S.C. § 623. In order to prove discriminatory intent under the ADEA, the plaintiff can use either a direct method of proof or an indirect method of proof.

Because Bordelon chose to proceed under the direct method of proof, he had to provide admissible evidence of Coates’s discriminatory motivation based on age. The Seventh Circuit held that a key piece of Bordelon’s evidence was inadmissible due to the hearsay rule. Therefore, he did not meet his evidentiary burden and his motion for summary judgment was denied. The Court also reasoned that the Board had independent reasons for not renewing his contract, such as his disciplinary problems and low test scores at the school.

Even if Bordelon had presented enough evidence to prove a discriminatory intent based on age, there are still a number of difficulties associated with age discrimination claims. Although an employer can justify its policies or practices using a reasonable factor other than age, they may still have a disparate impact on older individuals. Take, for example, a school district that will not hire any with more than 10 years of experience. Although the school district can claim that hiring an employee with more than 10 years’ experience is costlier, this policy has a disparate impact on older workers.

At-will employment can also allow employers to get away with age discrimination. Essentially, at-will employment means that employers can terminate someone for any reason, such as age, or for no reason at all. Therefore, at-will employees may be discouraged from taking legal action when they feel their employer has discriminated against them due to their age.

Plaintiffs bringing an age discrimination claim may have higher obstacles to climb compared to their employers, even if they have a valid claim. Perhaps this means it’s time to reassess how our society perceives ageism in the workplace.

Claims of Age-related Bias in the Workplace

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

According to the Bureau of Labor Statistics, 1 in 5 workers in the U.S. is age 55 or older and of those surveyed, 64 percent of workers have experienced age discrimination in the workplace. Age discrimination (29%) doubled the claims for sex discrimination (14%) and nearly tripled the claims for race discrimination (11%) from 2007 to 2008, an increase from 19,103 to 24,582 claims. On January 20, 2016, U.S. District Judge, John J. Tharp, Jr. issued a ruling in one such case, Victor v. Village of Hoffman Estates.

Like many towns during the great recession of 2008, the Village of Hoffman Estates felt the pangs of the economic downturn. Budget shortfalls and revenues falling below projected levels forced management to scale back employees’ hours. Barbara Victor worked full-time as the Human Resource (HR) Generalist with the Village. Worried about being laid off, Barbara became emotionally distressed and took a long medical leave of absence. Barbara never returned to work in HR, so the Village assigned another employee, D’Ann Granger – nine years younger than her – to take over her duties.

On June 12, 2009, Barbara filed a grievance, claiming that superiors harassed and retaliated against her. She alleged her superiors refused to meet with her as scheduled to inform her of her employment status. Barbara sued the Village in the U.S. District Court, N.D. of Illinois, Eastern Division for age discrimination and retaliation for having filed or made grievances. Defendant moved for summary judgment.

Judge Tharp granted summary judgment in favor of defendant. When there is no genuine issue of material fact from the admissible evidence, the moving party is entitled to summary judgment as a matter of law.

First, the Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against an individual based on age. Barbara claimed the Village reduced her hours because she was 57 years old. The court turned to a four-prong indirect method test to assess the validity of the claim. It requires the plaintiff to show that she: (1) is a member of a protected class; (2) who met her employer’s business expectations; but (3) suffered an adverse employment action; and (4) employees outside of the protected class (i.e., younger employees) were treated more favorably.

Judge Tharp pointed out that Barbara’s pay rate rose since she first got hired in 1998. She went from part-time to full-time in 2004 working 37.5 hours, and she eventually worked 40 hours when she became HR Generalist in 2007. Because Barbara failed to prove that her age, pay rate, or seniority was ever an issue, the court dismissed the age discrimination claim.

Secondly, Judge Tharp dismissed the retaliation claim under a three-prong direct method test. Barbara filed numerous internal grievances and met the first element of engaging in statutorily protected activity. The second element was not met because her claims consisted of generalities rather than specific instances. For example, she claimed her employer used “hostile treatment, less favorable evaluations, and non-selection for various positions.” Thus, she was unable to make a causal connection in order to meet the final element. Her failure to exhaust all administrative remedies with the Equal Employment Opportunity Commission (EEOC) to challenge unfair employment practices under Title VII also did not work in her favor.

If your employer has discriminated against you in Indiana, you may file a claim of age-related bias in the workplace with either the state administrative agency, the Indiana Civil Rights Commission, or the federal administrative agency, the EEOC. There is no place in this world for discrimination and there is no room in the workplace for age-related bias either.

 

Disability Rights Victory: Court Allows Disabled Plaintiff a Second Chance at Litigation

Disability Rights Victory

Azariah Jelks
Juris Doctor Candidate, 2016
Valparaiso University School of Law

Despite the existence of disability laws, disabled people still face many barriers to equality. For instance, disabled persons are less likely to be employed than those without disabilities. From 2013 to 2014, the rate of employment for disabled people was only 17.1 percent compared to 64 percent for those who are not disabled.

In Reed v. Illinois, the Seventh Circuit recently rejected the state of Illinois’ collateral estoppel claim against a disabled plaintiff seeking to sue the state court for failing to provide her with disability accommodations during her pro se lawsuit.

The case stems from an earlier personal injury suit brought by the Plaintiff, Linda Reed, in 2011. Reed was diagnosed with Tardive dyskinesia, which causes involuntary muscle spasms, choking, tremors, pain, and occasional muteness and screaming. She also had posttraumatic stress disorder. These two disabilities severely limited her communication, thinking, and mobility skills. Reed litigated the case without a lawyer, and asked for accommodations beforehand, such as a friend to take notes for her, and a podium. These requests were honored. However, the court denied other requests for a microphone, an interpreter to express Reed’s thoughts when she could not communicate, and a set of special jury instructions that explained her disability.

Unfortunately, the trial devolved into nightmare for Reed without these accommodations. She had to grunt and use hand gestures during the times she could not verbally communicate her thoughts, which the jury was unable to understand. And even worse, was the judge’s conduct. He often yelled at Reed, told her to “hurry up” in front of the jury, and cut off her examination of witnesses. The judge’s behavior and the embarrassment related to it even caused Reed to go into a fit of convulsions at one point.

Unsurprisingly, the jury did not find in favor of Reed, but she moved for a new trial on the grounds that she was disabled and had been denied reasonable accommodations under the Americans With Disabilities Act (ADA). The ADA prohibits discrimination in on the basis of disability in employment, public accommodations, and other areas of life. The ADA also defines disabilities.

The trial court judge denied her motion for a new trial because he concluded that her pauses in speech were related to indecisiveness rather than a disability. He also stated that her speech impediment had been observed and fully accommodated. The Illinois appellate court affirmed the ruling. She later filed an ADA action in federal court against the Cook County court for failing to adequately accommodate her disability. The state argued that her lawsuit was barred under collateral estoppel, and the district court agreed.

The Seventh Circuit noted that all the requirements of collateral estoppel had been met in this case, but explained that the more important issue in collateral estoppel analysis was whether Reed had a full and fair opportunity to litigate the case. The Seventh Circuit reasoned that she had not had a full and fair opportunity because her chance at oral arguments was denied on the basis of her disability and she had no lawyer to help litigate her case. She also did not mention the Rehabilitation Act of 1973 in her state appeals, as she had in federal court. The trial judge’s inconsistent statements regarding her accommodations were also important to the decision, along with the judge’s determination that the plaintiff’s issues were related to indecisiveness rather than an actual disability.

The court of appeals also brought up the judicial system’s history of disparate treatment towards disabled persons, citing to Supreme Court cases such as Tennessee v. Lane, which led to the enactment of Title II of the ADA to ensure the disabled had equal access to the courts.

It is clear that even with anti-discrimination laws that are designed to protect the disabled, they are often denied their rights by the very system that should be enforcing them. The Seventh Circuit did provide one small victory in this case by recognizing the injustices committed against the disabled and the importance of equal opportunities in the court system.

Smiling in the Face of Religious Adversity

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Zach Melloy
Juris Doctor Candidate, 2016
Valparaiso University Law

An employee filed suit against her employer, the Circuit Court of Cook County, Illinois, alleging that they had subjected her to a hostile work environment on the basis of her religion and national origin.

Fozyia Huri, a native of Saudi Arabia and a practicing Muslim, began working in 2000 for the Circuit Court of Cook County as a childcare attendant. She was to work under Sylvia McCullum, a devout and vocal Christian who did not bother to introduce herself to Huri until Huri had been there for two weeks. According to Huri, McCullum was unfriendly from the moment they were introduced. Over eight years, McCullum repeatedly told Huri, who routinely wore a hijab, that one of her colleagues was a “good church-going Christian” and that the she and the chief judge were both “good Christians.”

In 2009, McCullum started becoming more and more vocal, telling her co-workers to work with a “good Christian” rather than Huri, whom McCullum described as “evil.” McCullum also began treating Huri resentfully; she made false claims against her, subjected her to different rules than her co-workers, screamed at her, and subjected her to stricter scrutiny than her co-workers. McCullum also asked the other office attendants to holds hands and say a prayer “in the name of Jesus Christ.”

A year later, Huri was transferred to the Court Reporters’ Office at the Cook County Circuit Court. Her new supervisors, however, treated her just as badly as McCullum had. Huri was prohibited from entering her office early, although other employees have 24-hour access. She was also prohibited from letting her daughter wait in the lobby, although children of non-Muslim, non-Arab employees are allowed in the lobby and the office. She was also excluded from departmental social gatherings, and was also denied time off for an Islamic holiday. Huri complained to the Chief Judge’s Office, but never heard anything.

As a result of this harassment, Huri filed a pro se claim against the Circuit Court of Cook County pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983, alleging that she had been subjected to a hostile work environment, because she is Muslim and an Arab. The United States District Court for the Northern District of Illinois dismissed the action, and Huri filed an appeal with the Seventh Circuit Court of Appeals.

The Seventh Circuit held that the District Court’s analysis was “replete with error.” The District Court had dismissed the entire case for two reasons: failure to exhaust administrative remedies, and failure to state a claim. However, as the Seventh Circuit noted, Huri had already filed three complaints with the Equal Employment Opportunity Commission before going to court.

The Seventh Circuit also held that Huri’spro se complaint accurately stated a claim under Title VII. In order to state a Title VII hostile work environment claim, a plaintiff must allege that they were subject to unwelcome harassment based on a reason forbidden under Title VII. Huri alleged the basis for her harassment and discrimination was her religion and national origin, both of which are forbidden under Title VII.

In addition to unwelcome harassment and a forbidden reason under Title VII, a plaintiff must also allege that the harassment was so severe or pervasive that it created a hostile or abusive working environment, and that there is a basis for employer liability. The Seventh Circuit held that Huri met this requirement, stating that “[i]t is enough to say that it is plausible that the screaming, prayer circles, social shunning, implicit criticism of non-Christians, and uniquely bad treatment of Huri and her daughter could plausibly be abusive.” As a result, the District Court erred when it dismissed Huri’s claim.

The Seventh Circuit then reversed the District Court’s decision and remanded the case for further proceedings. Huri will still have to overcome the burden to produce evidence to prove her claim, but now she will finally be able to demonstrate the religious harassment and discrimination she’s suffered for over a decade.

Business Judgment Rule: The New Corporate Mulligan

shareholder-hero

By: Rex Hood
Juris Doctor & M.B.A. Candidate, 2015
Valparaiso University School of Law

The Seventh Circuit recently reviewed Donnawell v. Hamburger  to establish whether a corporation could use the business judgment rule in correcting a contract. The business judgment rule is a presumption that in making a business decision, the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.

The case is a share-holders’ derivative suit against current and former members of DeVry‘s board of directors. An incentive plan adopted by the company in 2005 authorized the award of stock options to key employees, including the company’s CEO. The plan limited the awards to 150,000 shares per employee per year. Yet the company granted Daniel Hamburger, who became its CEO in 2006, options on 184,100 shares in 2010, 170,200 in 2011, and 255,425 in 2012. After discovering its mistake, Devry reduced each grant under the 2005 plan to 150,000 shares while at the same time it allocated Hamburger 87,910 additional shares available under the company’s 2003 incentive plan. As a result Hamburger received options in 2012 far above the 150,000 that were the most he could receive under the 2005 plan. All these grants were proposed by the company’s Compensation Committee to the company’s independent directors. The independent directors approved the award of the additional shares to Hamburger.

The plaintiff argues that the award is improper because only the company’s Plan Committee, and not the Compensation Committee, was authorized to grant stock options under the 2003 plan. But there was no Plan Committee in 2012. Likewise no harm was done by allowing the Compensation Committee to do over, in effect, the erroneous grant of stock options under the 2005 plan, by invoking the 2003 plan. The court held that drafters of contracts are not omniscient; they are not gifted with exact knowledge of what the future holds and, furthermore, literal interpretation can produce absurdities when applied to unforeseen occurrences. The nonexistence of the Plan Committee created an unforeseen hole in the 2003 incentive plan, and the company plugged the hole by substituting the Compensation Committee a substitution that might well make the shareholders better off, and would be very unlikely to make them worse off, than if there had been a Plan Committee. It makes no sense to allow a harmless error to drive a judicial decision.

This court in their ruling has avoided a company suffering from an unforeseen effect but, has this court decision created a corporate do over or “mulligan” provision? By allowing a company to use the business judgment rule in this manner you can expect we will see companies attempt to utilize this rule in other unforeseen ways in the future.

No Wonder People Do Not Like Insurance Agents

insurance-management

By: Jeremy M. Schmidt
J.D. Candidate, 2017
Valparaiso University School of Law

Ohio National Life Assurance Corp. v. Douglas W. Davis, et al. came before the Seventh Circuit on appeal from a summary judgement decision at the trial court. Mavash Morady (Morady), a defendant in this case, was a contracted insurance agent with Ohio National Life Assurance Corp. (Ohio National). Douglas Davis (Davis), another defendant in this case, was working with Morady to defraud Ohio National by using an investment strategy known as Stranger-Owned Life Insurance (STOLI).

Davis and Morady devised a scheme where they chose people that were older because they believed that they would be prime candidates for their scheme. It would begin by Davis approaching an individual, and then asking them to take out a life insurance policy. These people would receive a compensation from Davis for taking out a life insurance policy.

Morady, being the life insurance agent, would meet with the chosen people and have them fill out all of the forms to apply for life insurance. Morady would then fraudulently alter the documents to make these potential clients look like they are younger, and healthier, than they actually were. Ohio National would confirm that these prospective clients were actually people, but they did not check further into any of the clients to ensure the paperwork was completely accurate.

Davis and Morady then would contact the clients about a month after the life insurance went into force. The two then would have the clients sign the policy over to a irrevocable trust that was managed by a company that Morady’s husband owned. The life insurance policy then was owned by the company, and the beneficiary was also the company. The clients never paid any of the premiums because the company paid the premiums for them. The company then would sell the life insurance polices to investors. By doing this, Morady was violating her employment contract with Ohio National because the employment contract does not allow for an agent to sell policies that will be involved in a scheme where a third party will pay the premium, and will thus benefit from the death of the insured.

Once Ohio National found about the scheme Davis and Morady had been carrying out, they voided out all the policies that were involved. Ohio National then filed a complaint against Davis, Morady, Morady’s husband, and other investors. The two sides filed briefs that had a common fact pattern, which means that there was no dispute to the events and how they happened. Ohio National filed a motion for summary judgement, which the court granted in their favor. The court gave Ohio National everything they asked for with the exception for the judgment against Steven Egbert (Egbert). The court reasoned that Egbert was an innocent bystander in the scheme when he made an investment into a life insurance policy, and could not have known the policy was created through fraudulent acts.

The Seventh Circuit decided that summary judgement in favor of Ohio National was correct and the damages awarded were reasonable because Davis and Morady were found to have committed a tort of civil conspiracy.

Statute of Limitations for Family Medical Leave Act

Fired_stamp

Azariah Jelks
Juris Doctor Candidate, 2016
Valparaiso University Law School

This month, the Seventh Circuit addressed a new legal issue in Barrett v. Illinois Department of Corrections: it determined the Family Medical Leave Act’s (“FMLA”) statute of limitations as applied to an absenteeism policy based on progressive discipline. The legal contention stemmed from the question of whether the statute of limitations to bring a lawsuit under the FMLA runs from the actual day of missed work or the date of termination because of several days of missed work.

The plaintiff, Cindy Barrett, had been an employee with the Illinois Department of Corrections (“IDOC”) since 1995, and was fired in October 2010 after accumulating twelve absences in violation of the IDOC’s absenteeism policy. The IDOC maintained a policy that allowed an employee to be fired after twelve absences. However, the record of absences could be expunged if the employee went two years without any absences.

Barrett contested her termination at a hearing with the Illinois Civil Service Commission, but her termination was ultimately upheld. Then in 2012, she sued the IDOC in federal court for violating her rights under the FMLA. The FMLA entitles twelve workweeks of leave per year to employees, specifically for family and medical care. Barrett’s absences spanned seven years, but she claimed three absences in particular were protected under the FMLA and consequently were not unauthorized.

The first absence at issue occurred in December 2003 when she did not report to work due to a diagnosis of Pneumonia. She requested to use sick leave, but her job explained that she did not have any sick leave to cover the absence. An employee review board determined the absence to be unauthorized, despite her work-release form.

The next absence Barrett claimed was FMLA protected was in December 2004. She called out of work to help her daughter who had been hospitalized after going into early labor and requested to use sick leave. Her request was again denied because the IDOC stated that she did not have any sick leave to cover the absence. An employee review board once again determined the absence to be unauthorized.

The final disputed absence was in August 2010 after she left work early for physical therapy. She received a paper suspension that was not actually enforced, and therefore lost no wages or work time.

The district court dismissed her FMLA lawsuit, claiming the two-year statute of limitations had run because the FMLA violations at issue occurred several years ago. Barrett on the other hand argued the statute of limitations should not run until the date she was fired, as this was the last violation. If this were the case, her claim would still be timely.

The Seventh Circuit affirmed the district court’s ruling that the statute of limitations period applied to the date the last violation occurred. The court looked to the statute itself for direction, which stated, “an action may be brought under this section not later than two years after the date of the last event constituting the alleged violation for which the action is brought.”

According to the court, this meant that the violations occurred each of the three times the employee review board determined Barrett’s absences to be unauthorized. Although Barrett claimed it would be impractical to sue each time leave was wrongly denied, the court reminded her that lawsuits are not her only remedy – she can file FMLA complaints with the Department of Labor as well.

The FMLA statute of limitations under absentee policies has only been addressed in the Sixth and Eighth Circuits, and the courts reached very different conclusions. The Sixth Circuit’s ruling resembled Barrett’s argument. In Butler v. Owens-Brockway Paper Products, Inc., the Sixth Circuit held that a litigant could challenge their termination for excessive absences under the FMLA even though the statute of limitations expired well after the protected absences occurred. The Eighth Circuit’s ruling is in line with the Seventh Circuit.

Only time will tell how other appellate courts will rule on this issue. With respect to judicial action, courts that follow the Sixth Circuit’s analysis may open business up to a whirlwind of lawsuits, and leave years old terminations open to litigation. At the very least, the issue impacts the effectiveness of the FMLA employee protections. Perhaps the Supreme Court will take up the issue if a circuit split results.

Retaliation Claim for Workplace Discrimination

Retaliation road sign

By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

Eric Harden sued the Marion County Sherriff Department for retaliation under title Title VII of The Civil Rights Act of 1964. Harden alleged that the Department fired him in retaliation for testifying on behalf of African-American police officers in a race discrimination investigation.  The Court reviewed two issues: evidentiary and retaliation.

A witness accused Lt. Frasier of stealing money from a man Harden arrested. The Department argues that the summary judgment motion  relied on inadmissible hearsay.  Harden wanted to offer the statement of the witness to prove that the Department was aware of—and ignored—another suspect. The evidence offered did not warrant the decision even if the statement was considered.

Title VII  prohibits employers from retaliating against employees from testifying, assisting, or participating in a race discrimination investigation. Retaliation may be established by either direct or indirect methods of proof. The Court limited their inquiry to whether Harden has presented sufficient evidence that his protected activity was a substantial and motivating factor in Harden’s eventual termination.

The plaintiff sought damages against the defendant for retaliation. Therefore, Harden had the burden of proving each of the following elements by a preponderance of the evidence:

  1. The plaintiff engaged in or was engaging in an activity protected under federal law, that is known as activity;
  2. The employer subjected the plaintiff to an adverse employment action, that is known as adverse employment action; and
  3. The plaintiff was subjected to the adverse employment action because of his participation in protected activity.

The defendants conceded the first two elements. This left Harden with the burden establishing that the discrimination that he suffered was caused as a result of the protected activity; meaning, the employer action was at least, in part, motivated by the employee engaging in protected activity.

Harden had to rely on circumstantial evidence to satisfy the element, or a a casual link between his protected activity and the adverse action. There are three categories that go into circumstantial evidence: suspicious timing, ambiguous statements, and other information from which an inference of retaliation intent might be drawn.

Harden offered no evidence that proved that his termination happened at a suspicious time. Harden, next, offered evidence to show a continuous pattern of harassment. The evidence included Lt and the Deputy encouraging workers to discipline Harden for no reason. Even though Harden introduced this evidence, a link between the evidence and his termination was missing.

Harden alleges that the Internal Affairs investigation was unworthy of credence. The investigation concluded that Harden was, ultimately, responsible for the theft. The court did not evaluate whether the stated reasons were inaccurate, but whether the employer honestly believed the reason it has offered to explain the discharge. The investigation consisted of more people being suspected other than Harden. There was a thorough investigation and the investigation offered a legitimate explanation for their conclusion that Harden was the thief.

The Seven Circuit ruled that there was not enough evidence to suggest that the Internal Affairs investigation was a sham or that the relevant decision makers at the Department did not legitimately rely on the investigators’ conclusion in terminating him. Harden argued that he immediately became the primary suspect and the department, which ignored the accusation of another officer. The Court found that there was no evidence in the person who heard the accusation told the investigators during the interview. Because no reasonable jury could find that the Internal Affairs investigation was pretextual, the District court’s ruling was affirmed. Therefore, summary judgment was granted in favor of the Department.

Court Rules Right to Marry Includes Choosing Whom to Marry

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Azariah Jelks
Juris Doctor Candidate, 2016
Valparaiso University Law School

Almost fifty years ago, the Supreme Court held that men and women had the fundamental right to marry in Loving v. Virginia. Then this past summer, the Court extended the right to marry to include same-sex couples in the landmark case Obergefell v. Hodges. But what about when the government interferes with whom you choose to marry?

The Seventh Circuit took up this issue in Riker v. Lemmon. From 2007 to 2008, Rebecca Riker worked at the Wabash Valley Correctional Facility in Indiana where she met prison inmate Paul Vest, whom she supervised during his kitchen duty. After a few months, their interactions went beyond work and they began a romantic relationship, often engaging in sexual rendezvous inside a walk-in cooler. Their secret relationship was eventually discovered after another prison employee caught the two kissing inside the cooler, and Riker quit her job the same day.

However, this did not stop Riker and Vest from continuing to keep in contact with one another through letters. From 2008 to 2009, Riker also wrote several letters petitioning the department of corrections for privileges to visit Vest. However, those requests were repeatedly denied due to a prison policy prohibiting ex-employees from visiting inmates.

Distance and challenges brought on by the department of corrections still did not keep the couple apart. In 2010, Vest proposed to Riker and she accepted. But when the couple applied to be married, the prison denied their application because Riker was not on a list of approved visitors. Ultimately, Riker would never be allowed visit due to a prison policy barring ex-employees from visiting inmates if a relationship began while the employee worked at the corrections facility.

Riker filed suit in 2013, claiming the prison had denied her constitutional right to marry. The Seventh Circuit agreed, and decided that although the department of correction’s interest in preventing security risks was legitimate, the prison failed to justify how preventing Riker from marrying Vest would meet this interest. The prison did not submit any evidence to show how allowing a wedding ceremony would jeopardize prison security.

The Court of Appeals also rejected the prison’s argument that Riker’s right to marry had only been minimally burdened because she could wait to marry Vest after he was released from prison– in 2030. The court ruled that Riker had been left with no alternatives at all to exercise her right to marry, especially since she was prohibited from ever visiting Vest.

The Seventh Circuit explicitly expanded the right to marry to also include the right to choose one’s spouse, citing to language in Obergefell – “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” More narrowly, this decision also includes prisoners, and dictates that the right to marry overcomes an interest in maintaining prison security and stability, which is otherwise highly deferential under a rational basis analysis. It will be interesting to see if the Seventh Circuit applies this holding in any other contexts in the future.

Unprotected Classes: No Relief in University Discrimination Case

UntitledBy Andrea J. LaMontagne
Valparaiso University Law School
J.D. Candidate, 2016

A business professor at Chicago State University (CSU) was denied relief when the Seventh Circuit Court of Appeals held that he was not discriminated against in the University’s search for a department chair. Tollie Carter, the appellant in question, is a long time business professor at CSU. Carter earned his Master of Business Administration (MBA) degree, and is also a Certified Public Accountant (CPA).

The Seventh Circuit Court of Appeals disagreed with Carter’s claims that CSU acted in retaliation when he was not selected as the acting chair of the Department of Accounting and Finance. Carter claimed that CSU was retaliating for his recent medical leave under the Family Medical Leave Act (FMLA) and in retaliation for a prior lawsuit in which he alleged race and gender discrimination.

Carter filed his prior lawsuit against CSU in 2007 as a result of these complaints and others that he had against the school. He claimed that the university was discriminating against him on the basis of race, gender, and disability, which is a direct violation of Title VII of the Civil Rights Act of 1964, and also listed individual defendants who are further accused of discrimination in the present case.

In 2008, Carter took leave from January 29 until March 20 under the FMLA for the sake of caring for his elderly mother. CSU hired a part-time professor to teach one of his classes and had other faculty members cover the other classes. Upon Carter’s return he was assigned to non-teaching duties, to which he objected at first.

The present case arises from the selection of another professor over Professor Carter for an open department chair position in 2008, and the filling of the same position after the resignation of that professor. Professor Carter claims that in both instances he was discriminated against as a means of retaliating against him personally, for his FMLA leave and his prior lawsuit.

According to a prior Seventh Circuit decision, to prove the retaliation claims, Carter must prove that he engaged in a protected activity; that he suffered an adverse employment action; and there is a causal connection between the two (Stephens v. Erickson). According to the Seventh Circuit Court’s opinion in the present case, “Carter’s FMLA leave and prior lawsuit both constitute protected activity, and we assume for the purposes of this appeal that the failure to promote Carter constitutes an adverse employment action. The question, then, turns on causal connection.”

Carter attempted to use the two established methods of proving causal connection through either familiar direct or indirect methods of proof. However, he failed both of these under the Seventh Circuit Court of Appeals holding because he relied heavily on circumstantial evidence that was insufficient to allege actual retaliation or discrimination.

The crux of his argument rests on the fact that his FMLA leave of absence was in close proximity to the acting chair appointment as to raise a question of discrimination. However, he fails this because he cannot prove anything besides the timing of his leave and the selection of the acting chair, and such a time difference does not show that the university was discriminatory.

As the Seventh Circuit Court of Appeals held, “Because Carter did not raise a genuine issue of material fact regarding his employer’s allegedly retaliatory motives through either the direct or indirect methods of proof, his claims cannot survive a motion for summary judgment.

The holding of this case sets an intriguing precedent, because here the Seventh Circuit Court of Appeals shows that even where an instance of discrimination might have occurred, the individual alleging discrimination must have more than circumstantial evidence at his disposal.

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