During the past academic year, the Employment Law Clinic has continued its work in both individual and class action employment discrimination cases. The Clinic expanded its work in this area in 2022-23 by accepting appointments as Settlement Assistance Counsel in a number of individual discrimination cases. The Clinic continues to handle a few appeals in the U.S. Court of Appeals for the Seventh Circuit. Some of the significant developments in a few of the Clinic’s cases are detailed below.
Alamo v. Chicago, (N.D. Ill.)
Robert Alamo worked as a firefighter for the City of Chicago for many years. During this time, he was subjected to a number of racial slurs because of his national origin. He was also treated differently than a non-Hispanic firefighter. This disparate treatment included being excessively detailed to other firehouses and being required to overcome numerous hurdles to return to work after taking time off for stress. Ultimately, the City refused to allow Mr. Alamo to return to work from a medical leave and discharged him. Mr. Alamo’s complaint alleges that the City subjected him to a racially hostile work environment, retaliated against him for complaining about the discrimination, and ultimately discharged him in retaliation for filing his case and because of a perceived mental disability. In early 2021, the District Court denied the City’s motion for summary judgment on Mr. Alamo’s claim that he was subjected to a racially hostile work environment. In late July 2022, the case was settled for $225,000 on the first day of the jury trial.
Settlement Assistance Cases
Each year, the U.S. District Court for the Northern District of Illinois, together with the Chicago Chapter of the Federal Bar Association, honor lawyers who have served the court and the community by providing pro bono representation and advocacy. In May 2023, Clinical Professor Randall D. Schmidt and his students received Pro Bono awards for their work on two Settlement Assistance cases. These cases are:
Orokoh v. National Louis University, (N.D. ll.)
Angela Orokoh alleged that she was subject to hostile work environment based on her race and sex while working for National Louis University. Clinical Professor Randall D. Schmidt was appointed by the court to represent Ms. Orokoh in settlement proceedings. The matter was settled at a settlement conference.
Magistrate Judge Sunil R. Harjani nominated Professor Schmidt and his students for the pro bono award based on their efforts in the case. According to Judge Harjani, Professor Schmidt “showed great initiative in accepting the case and working with his students from the Mandel Legal Aid Clinic at the University of Chicago to represent client in the settlement conference. Professor Schmidt and his students earned client's trust and client felt well-represented, resulting in a settlement.”
Regulus v. Thresholds, (N.D. Ill.)
Magistrate Judge Susan E. Cox nominated Emma LaBounty, ’23, and Professor Schmidt for their work in representing Raven Regulus in settlement proceedings. Ms. Regulus alleged that she was subject to hostile work environment and wrongful termination claims based on disability and race while working for a non-profit housing agency. Ms. LaBounty and Professor Schmidt, as settlement assistance counsel, vigorously represented Ms. Regulus in the case with what Judge Cox described as “an exceptionally strong pending motion to dismiss.” Ms. Regulus was able to fully express herself and have "her day in court," even if that day in court was only at a settlement conference rather than before a jury (Hon. Thomas M. Durkin, Presiding)
Chicago Teachers Union, et al., v. Chicago Board of Education (N.D. Ill.)
In this class action case, a class of African American teachers and paraprofessionals claim that the Chicago Board of Education’s school “turnarounds” in 2012 to 2014, had a racially adverse impact on African American teachers and paraprofessional staff. In a “turnaround,” the CBOE displaces all teachers and paraprofessionals at a school and replaces them. The decision to displace the teachers and paraprofessionals at a school was not based on the teachers’ job performance. Rather, the decision is based on the performance of students at the schools. In addition to the adverse impact claim, plaintiffs claim that the CBOE engaged in a pattern and practice of discrimination. Plaintiffs alleged that the CBOE has intentionally selected schools on the South and West sides of Chicago for turnaround. The schools selected have high percentages of both African American students and teachers. Schools with higher numbers of white students and teachers are not selected for turnaround even though their performance is the same or worse than the schools selected. In 2020, both parties moved for summary judgment. In early 2021, the District Court denied both parties’ motions for summary judgment.
After summary judgment was denied, the parties engaged in substantial settlement discussion before a Magistrate Judge. At the end of these negotiations, the parties agreed to settle the matter for the total amount of $9.25M, which will used to cover claims submitted by approximately 415 members of the class and the reasonable attorney fees and costs of the Clinic and its co-counsel. The Court granted final approval of the settlement in late 2022 and the settlement awards were sent to the class in December 2022.
In addition to trial level cases, the Employment Law Clinic represents clients in a number of appeals in the US Court Appeals for the Seventh Circuit. In some of these appeals, the Employment Law Clinic represents the appellants in their appeals. In other reconsiderations appeals, the Clinic is contacted and asked to participate as amicus curiae. Students working on these appeals write the briefs and present oral argument to the Seventh Circuit. Both Professor Schmidt and Lecturer in Law James Whitehead supervise the students in the appeals pending in the Seventh Circuit.
In addition, the Employment Law Clinic has submitted amicus briefs in several cases in the Illinois Supreme Court and the Illinois Court of Appeals. Examples include:
Farris v. Vector Construction, (7th Cir.)
On May 20, 2022, Elvin Farris filed a pro se Complaint of Employment Discrimination in the Central District of Illinois alleging that Vector had discriminated against him based on his disability in violation of the Americans with Disabilities Act. In the complaint he alleged that he was sent home on August 5, 2018, but then learned on October 25, 2018, he was in fact discharged by Vector at some point between August 5 and October 25, 2018. He filed a charge with the EEOC within 300 days of October 25, but more than 300 days after August 5, 2018.
Vector moved to dismiss the complaint because Mr. Farris did not file his EEOC charge within 300 days of August 5, 2018. The district court agreed and decided that the discovery rule did not apply because there was no meaningful difference between Mr. Farris’s layoff on August 5 and his termination.
After filing his pro se appeal, Mr. Farris requested the Employment Law Clinic represent him on appeal. The Clinic agreed and students researched and drafted both the opening and reply briefs in the case. The primary argument made in the briefs is that the lay off and termination are two distinct adverse actions and the time to file a charge of discrimination based on the discharge accrued when Mr. Farris learned of it. Thus, the district court erred by failing to apply the discovery rule in deciding Vector’s Motion to Dismiss.
Oral argument in the appeal was held on July 12, 2023, and we are awaiting the decision of the Seventh Circuit.
Cothron v. White Castle (7th Cir. and Ill. Sup. Ct.)
In 2008, Illinois passed the Biometric Information Privacy Act (“BIPA”). BIPA requires that employers and other entities that collect or use biometric information obtain consent prior to doing so. Lathrina Cothron worked at White Castle beginning in 2004. White Castle required employees to use a fingerprint scanner to gain access to the company’s computer system. White Castle, however, did not obtain Ms. Cothron’s consent to collect her fingerprint information until 2018; a decade after BIPA took effect.
Ms. Cothron filed a lawsuit in Illinois state court. The defendants removed the case to federal court under the provisions of the Class Action Fairness Act. The defendants then moved to dismiss the case and argued that Ms. Cothron’s cause of action was barred by the statute of limitations. According to defendant’s argument, Ms. Cothron’s cause of action accrued the first time White Castle collected her fingerprint without her consent. The district court disagreed and concluded that a cause of action accrued each time White Castle collected Ms. Cothron’s fingerprint without her consent. The district court then certified the issue whether a claim accrues only once (upon the first scan) or repeatedly (with every scan) to the Seventh Circuit.
The Clinic was approached by various parties and asked to prepare an amicus brief in the case. After research and discussions, the students decided that the issue was one that should be determined by the Illinois Supreme Court and proposed to several other interested groups that we file an amicus brief urging the Seventh Circuit to certify the issue to the Illinois Supreme Court. The American Association for Justice and the Illinois Trial Lawyers Association agreed that the issue was one that should be decided in the first instance by the Illinois Supreme Court and authorized us to file an amicus brief on their behalf. Students in the Employment Law Clinic researched, drafted and filed an amicus brief urging the Seventh Circuit to certify the issue to the Illinois Supreme Court.
On December 21, 2021, the Seventh Circuit agreed that the issue was an important issue of state law and that it should be decided by the Illinois Supreme Court. Accordingly, the Seventh Circuit requested that the Illinois Supreme Court decide the certified question of whether a claim under BIPA accrues each time an entity scans a person’s biometric information or only upon the first scan.
In January 2022, the Illinois Supreme Court accepted the certified questions. The Employment Law Clinic was again approached by several groups that requested that the Clinic prepare and file an amicus brief on their behalf in the Illinois Supreme Court. The Clinic agreed and students researched, drafted, and filed an amicus brief that argued that BIPA causes of action accrued every time biometric information was captured without consent, rather than only upon the first scan.
In February 2023, the Illinois Supreme Court, in a 4-3 decision, held that the plain language of BIPA demonstrates that a violation of the act occurs every time a business captures biometric information of a person without the prior consent of the individual. The Court rejected the arguments of White Castle and its amici that BIPA causes of action accrue (and therefore the statute of limitations begin to run) on the first scan. White Castle filed a petition for rehearing which is still pending before the Illinois Supreme Court.