Jottings By An Employer's Lawyer

Wednesday, February 09, 2005

Technical Knock Outs Don't Always Stay Out

In today's world where employment arrangements are not always straight forward and simple, who you sue can be a somewhat technical question. Michael Flowers, a counselor hired by Columbia College Chicago, was assigned to a public high school, which had contracted with Columbia College to provide guidance counseling services. The principal of the school refused to allow Flowers to wear a headcovering which he claimed was required for religious reasons. He filed a complaint with the EEOC naming the school system as his employer. The school system objected to the College, which in turn ended Flowers employment.

Following the EEOC investigation of his retalition charge, Flowers, acting pro se, filed a lawsuit against the school system. The federal district judge dismissed the case as frivolous before service was made, because on its face it was clear that the college was his employer not the school district. Accepting that knock down, Flowers sued again, this time against the College. The result? The second case was knocked out when the Court found he had failed to state a claim on which relief can be granted, a ruling the 7th Circuit construed as holding, "Title VII allows an employer to sack a person who complains about discrimination elsewhere." Getting off the canvas a second time, Flowers appealed to the 7th Circuit, which has (at least from his point of view) set things right, by making it clear that the case can go forward and be heard on the merits. Flowers v. Columbia College Chicago (7th Cir. 2/8/05) [pdf].

The Court did not come close to buying the College's argument (accepted by the trial court) that since the complaint was made against someone that did not employ him, it was not protected activity. To do that would, in the Court's view, completely dismantle Title VII retaliation protection based on corporate structuring.

It also dismantled the College's argument that the action was not protected because it was frivolous:

[T}he College insists that Flowers’s original charge was baseless because made against the Chicago school system, which did not employ him. Yet identifying the “employer” in a borrowed-servant situation can be difficult. Flowers was in a bind: had he charged the College with failing to accommodate his religion, the College could have blamed the high school and insisted that it was in no position to do anything; had Flowers filed the charge against the school system (as he did), it could have replied (as it did) that the College was his only employer. Perhaps both entities usefully could be deemed employers in such a situation, [cites omitted] but even if the College was the only statutory “employer” it hardly seems a firing offense for Flowers to have thought otherwise. If a gaffe on a technical issue allowed the employer to show the worker the door, the anti-retaliation provision would be diluted to the point of uselessness. ... Technical mistakes in pursuing charges that may well have a good substantive footing do not render those charges so unfounded that the employer may reply with a discharge. It is not as if Flowers had filed his initial charge against Verizon or Boeing. The high school was, if not his “employer,” at least using his labor.

When speaking, I have been known to say (somewhat tongue in cheek), "anyone can win on the facts, but it takes a good lawyer to win on a technicality." Flowers is a good reminder that pursuit of a victory on a technicality may end up being not much more than an expensive detour, because as the 7th Circuit clearly showed, not all cases thrown out on TKO's, stay out.

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