Labor & Employment Law Daily Seniority, not race, was reason for driver’s layoff, failure to rehire (1)
Friday, June 22, 2018

Seniority, not race, was reason for driver’s layoff, failure to rehire

By Nicole D. Prysby, J.D.

Because there was no evidence that an employer considered any factor other than seniority when making layoffs, an African-American employee could not demonstrate that he was laid off because of his race, held the Seventh Circuit. Although the collective bargaining agreement (CBA) may have allowed the employer to consider qualifications besides seniority, there was no evidence that the employer believed it could consider other factors or that it did so. Therefore, the comparators named by the employee were not similarly situated, because they were more senior and seniority was the only relevant factor. Also affirming summary judgment against the employee’s failure-to-hire claim, the appeals court found that the employee lacked evidence that the employer’s stated reason for hiring a white applicant (superior qualifications) was not the true reason. Finally, his retaliation claim failed because he had not evidence he applied for the positions for which he was allegedly rejected in retaliation for his EEOC charge (Oliver v. Joint Logistics Managers, Inc., June 19, 2018, Kanne, M.).

Layoff and non-selection. The employee worked as a truck driver under a CBA. The workplace had two seniority units: the repair unit and the transportation unit. When layoffs occurred, the most junior employees in the unit were let go first. In 2013-2015, the employee worked in the transportation unit. He was laid off and recalled several times; each time he was the most junior employee in the unit. In 2014, he applied for an open position in the repair unit. The other applicant was a white male. Neither employee had seniority over the other. While the hiring decision was pending, the employee filed an EEOC charge alleging discrimination and retaliation. The next month, the white male applicant was hired for the repair unit position. Later that year and the next year, the employer filled other open mechanic positions. The employee did not apply for those.

The employee brought a 42 U.S.C. § 1981 claim against the employer, alleging that he had been discriminated against when he was laid off and also when the employer selected the white applicant for the open repair unit position. He claimed the employer retaliated against him by not hiring him for the mechanic positions that opened after he filed his EEOC charge. The court granted summary judgment for the employer.

Discrimination claims fail. On appeal, the court affirmed, finding the employee could not demonstrate that he was laid off from his position because of his race. The only comparators he named were more senior, and because seniority was the only factor used by the employer in the layoffs, the more senior employees were not similarly situated. Although the CBA allowed the employer to consider qualifications in addition to seniority, there was no evidence the employer believed that it could consider other factors or that it in fact did consider other factors.

As to the employee’s discrimination claim regarding the failure to hire him for the repair unit position, the court found that the employer demonstrated that it believed the other applicant was more qualified. He had three more years of experience with the necessary job skill requirements than the employee and much more detailed experience on his resume. Because the employee presented no evidence that the legitimate reason provided by the employer was not the true reason for the hiring decision, summary judgment was appropriate for the employer.

Retaliation claim fails too. The court found that the employee’s retaliation claim failed, for the simple reason that he could not demonstrate that he suffered an adverse employment action after filing his EEOC complaint. He never applied for or showed any interest in the mechanic positions that opened up after he filed the complaint. Therefore, summary judgment was properly granted for the employer.

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