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Fox Williams & Sink, LLC
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Trouble understanding how you are paid, or why you are not receiving overtime? You could be sitting on a valuable wage claim, or even a class or collective action. Call us to discuss.

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A stern opinion by Judge Hamilton today in the matter of McKinney v. Sheriff of Whitley County (7th Cir. Aug. 8, 2017), highlighting why District Court's cannot weigh and ignore the evidence in favor of plaintiffs on summary judgment: "McKinney presented substantial documentary and testimonial evidence to support his claim, but the district court seems to have disregarded most of his evidence in favor of Sheriff Hodges' affidavit . . . [t]he district court disregarded most of McKinney's evidence, and that choice lies at the root of the erroneous grant of summary judgment . . . it [District Court] did not address most of McKinney's other evidence, which, to be frank, demolishes the employer's shifting list of rationales."

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The Seventh Circuit, in Stragapede v. City of Evanston (7th Cir. July 31, 2017), recently affirmed that the ADAAA direct threat defense is an objective inquiry, and an employer's good faith and subjective belief is not enough to escape liability. Additionally, the Seventh Circuit affirmed that the burden of proof is on the employer, not the employee, to prove a failure to mitigate damages.

Today, in Carson v. Paulsin (7th Cir. July 26, 2017), the Seventh Circuit clarified that but-for causation "need not prove that age was the sole motivation." So but-for does not equal the sole reason. However, but-for means that the unlawful criteria must have been a "determining factor." To explain this, the Seventh Circuit used a thought experiment wherein the protected trait was removed from the analysis. If the employee was still terminated, even with removal of the protected trait, then but-for causation is not satisfied. In other words, but-for means that the protected trait is both a necessary and self-sufficient reason for the termination.

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Here is an interesting opinion by the Seventh Circuit on hostile work environment claims and adverse employment actions. The Seventh Circuit reversed the District Court's dismissal of the case.

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So many good nuggets in the recent Seventh Circuit decision in Baines v. Walgreen Co. (7th Cir. July 12, 2017). Here are a few:

-proving causation through circumstantial evidence: "if a plaintiff can assemble various scraps of circumstantial evidence enough to allow the trier of fact to conclude that it is more likely than not that discrimination lay behind the adverse action, then summary judgment for the defendant is not appropriate."

-absence of direct evidence: "The absence of such a direct admission of unlawful intent does not mean the plaintiff cannot meet her burden with circumstantial evidence."

-commands, admissions, and hearsay exceptions: "A command is not hearsay because it is not an assertion of fact . . . a subordinate's account of an explanation of the supervisor's understanding regarding the criteria utilized by management in making decisions on hiring, firing, compensation, and the like is admissible against the employer, regardless of whether the declarant has any involvement in the challenged employment action."

-various amiss circumstances: "scores are mysteriously missing . . . hired someone with less experience . . . initially denied even having interviewed Baines . . . also may have lied when she left Baines a voicemail saying she had selected someone else . . . told her that district manager Birch intervened to stop her from hiring Baines."

-deviation from established policy and practice: "An employer's unusual deviation from standard procedures can serve as circumstantial evidence of discrimination . . . Birch's intervention was highly unusual given her position in the corporate hierarchy."

-lying: "Evidence that an employer lied about the reasons for an adverse employment action permits a trier of fact to infer that the decision was actually motivated by discriminatory animus."

And many more... the case link is attached.

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Here is a good primer on the lodestar method, which is the standard way to calculate attorneys' fees to the prevailing party in the Seventh Circuit.

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The Seventh Circuit, in EEOC v. Autozone, Inc. (June 20, 2017), just held that claims under 42 U.S.C. 2000e-2(a)(2) must have deprived or tended to deprive an individual of employment opportunities or affected his/her employment status. The Seventh Circuit rejected the EEOC's argument that claims under this little-known and little-used provision do not require any sort of adverse employment action. Instead, the EEOC argued that limiting, segregating, or classifying is alone sufficient, without the presence of an adverse action. The Seventh Circuit rejected this argument based on the plain language of 42 U.S.C. 2000e-2(a)(2)(which mentions deprivation of employment opportunities and affecting one's status) but the Seventh Circuit also clarified that the scope of adverse actions under this section are broader because of the language "tend to deprive."
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