Employment Law Clinic—Significant Achievements for 2021-22
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 2021 by accepting appointments as Settlement Assistance Counsel in a number of individual discrimination cases. The Clinic continues to handle 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.
Individual and Settlement Assistance Cases
Alamo v. Chicago, (N.D. Ill.)
Robert Alamo worked as a firefighter for the City of Chicago for a number of 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. The case is currently set for trial in July 2022.
Maldonado v. Howard Brown Health Center and Maldonado v. Robert Half International and Howard Brown Health Center (N.D. Ill.)
The Employment Law Clinic was appointed as settlement counsel for plaintiff, Lisa Maldonado in these two discrimination cases. Ms. Maldonado was employed by Robert Half International and assigned to work at Howard Brown Health Center. At Howard Brown, Ms. Maldonado was subjected to a hostile work environment because of her race. When she complained about the treatment to Robert Half, Robert Half refused to do anything to help her. Consequently, Ms. Maldonado ended her placement at Howard Brown and ended her relationship with Robert Half.
The cases were pending before the District Court on defendants’ motions to dismiss when the Court appointed Randall D. Schmidt, Director of the Employment Law Clinic, as Settlement Assistance Counsel for Ms. Maldonado. Once appointed, students in the Employment Law Clinic met with Ms. Maldonado on several occasions, drafted her settlement demand letters, and fully participated in the settlement conference before a Magistrate Judge. At the settlement conference, the parties were able to reach a settlement. The students worked closely with the attorneys for the defendants to prepare the final settlement documents.
Class Actions
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 school 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. In particular, 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 actually 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 be 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 preliminary approval of the settlement in April 2022 and notice of the settlement was sent to the members of the class. The Clinic is now receiving and reviewing the claim forms submitted by the claimants. The matter will be submitted to the Court for final approval in August 2022.
Porter v. Pipefitters Association Local Union 597 (N.D. Ill.),
In Porter, plaintiffs claim that Local 597 discriminated against a class of African-American union members by operating hiring systems (a Hiring Hall and a Referral Hall) that disadvantaged African-American pipefitters with respect to their hours worked and other benefits of employment.
After years of litigation, the Court denied Local 597’s motion for summary judgment on plaintiffs’ claim that the union engaged in intentional race discrimination in implementing the hiring systems. The parties thereafter agreed to a settlement of the class action. Under the terms of the settlement, Local 597 paid $3,000,000 to resolve the claims of the class and the class representatives, as well as the claims of the Clinic and its co-counsel for attorneys’ fees and costs. The settlement also includes significant non-monetary relief, including a change in the percentage of pipefitters hired from the Referral Hall, increased fines to contractors for violations of the Referral Hall system, increased efforts to recruit African-Americans to Local 597’s Apprenticeship Program, and quarterly reports to the Court, a court-appointed consultant, and class counsel on the progress made in implementing the non-monetary terms of the settlement.
In late 2020, the District Court granted final approval of the settlement and ordered the distribution of the settlement proceeds. Distribution of the proceeds occurred in mid-2021. The Clinic is now working with the court-appointed consultant to monitor the Union’s progress on the non-monetary terms of the settlement.
Appellate Cases
In addition to trial level cases, the Employment Law Clinic represents clients in a number of appeals in the U.S. Court Appeals for the Seventh Circuit. In some of these appeals, the Employment Law Clinic represents the appellants in their appeals. In other reconsiderations, the Clinic is contacted and asked to participate as an amicus curiae. Students working on these appeals write the briefs and present oral argument to the Seventh Circuit. The students are supervised in the appeals pending in the Seventh Circuit by both Randall D. Schmidt and James Whitehead.
Ostrowski v. Lake County, Indiana, et al. (7th Cir.)
In this case, Thomas Ostrowski sued Lake County Indiana and other governmental entities alleging that their failure to pay him cost-of-living adjustments to his pension violated the provisions of the Americans with Disabilities Act. The District Court dismissed the case holding that a general release Mr. Ostrowski signed in a prior case, barred his new case. The court also found that based on the prior settlement agreement, the defendants’ were entitled to an award of nearly $250,000 in attorneys’ fees and costs.
Mr. Ostrowski, represented by the ACLU of Indiana appealed the court’s ruling on the merits. Mr. Ostrowski, as a pro se, appealed the award of fees.
The Clinic became aware of this case and filed an amicus brief on behalf of Mr. Ostrowski in the appeal of the award of fees. The Clinic argued that the language of the prior settlement agreement did not create an entitlement to fees. Instead, the issue of the defendants’ right to fees had to be determined by the principles that governed the award of fees to a prevailing party under the ADA.
The Court, sua sponte, granted oral argument to the Clinic and allowed a Senior Law Student to present the oral argument to the Court. Shortly after the oral argument, the Court issued a decision affirming the dismissal of the underlying case, but on different grounds. On the issue of the award of attorneys’ fees, the Court found that the prior settlement agreement did not govern the issue and agreed with the Clinic that the defendants’ rights to the award of fees as the prevailing party should be determined by the ADA and the general rules concerning the award of attorneys’ fees and costs. The Court therefore reversed the District Court’s order that awarded defendants their fees and costs.
Cothron v. White Castle (7th Cir.)
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 decided 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 and the matter is now pending before the Illinois Supreme Court.