G.Rulings On Procedural Issues In EEOC LitigationGovernment enforcement lawsuits often raise peculiar procedural issues. Decisions in2022 were no exceptionIn EEOC v. American Flange & Greif, Inc., 2022 U.S. Dist. LEXIS 94683 (N.D. Ill. May26, 2022), the Commission filed an action on behalf of charging party Marquez Griffin,alleging that the defendants failed to provide him with a reasonable accommodation andultimately terminated his employment due to his disability in violation of the ADA. Thedefendant Greif, Inc. filed a motion to dismiss for failure to exhaust administrativeremedies, and the court denied the motion. Griffin called in sick on two occasions withinthe first month of his employment and provided a doctor’s note stating that his absencesstemmed from a seizure disorder and requesting that they be excused. The defendantdeclined to excuse either absence. Griffin subsequently left work early for reasonsunrelated to his disability, and the defendants ultimately terminated Griffin for theunexcused attendance issues. Griffin thereafter filed an EEOC charge against thedefendant American Flange, which did not name the defendant Greif, Inc. The EEOC’sensuing investigation revealed that: (i) “both Greif and American Flange employed theemployees at the American Flange facility”; and (ii) “all temporary employees wouldbe paid and controlled by Greif once they obtained permanent employment.” Id. at *4.The EEOC alleged that Greif knew or should have known that Griffin's chargeconcerned Greif's own conduct and employment practices, given Greif's control overAmerican Flange's operations. Id. Greif moved to dismiss, arguing that theCommission’s claim against Greif should be dismissed for failure to exhaustadministrative remedies. Greif asserted that the EEOC “failed to provide Greif notice ofa charge against it, as opposed to a charge against its subsidiary American Flange.” Id.at *9. The EEOC contended that its determination letter found reasonable cause tobelieve both Greif and American Flange discriminated against Griffin. The court opinedthat taking the EEOC’s allegations as true, the EEOC adequately alleged that Greif hadnotice of the claims against it. Accordingly, the court ruled that the EEOC adequatelyalleged facts to establish that Greif was properly before the Court as a defendant. Thecourt therefore denied Greif’s motion to dismiss.In EEOC v. Citizens Bank, N.A., 2022 U.S. Dist. LEXIS 125459 (D.R.I. July 15, 2022),the Commission filed an action on behalf of charging party William Lescault, allegingthat the defendant subjected him to discrimination on the basis of his disability inviolation of the ADA. The EEOC filed a motion for Rule 37(b) sanctions, and the courtdenied the motion. The defendant previously requested, on recommendation fromLescault’s psychologist Dr. Bursztajn, that the court order that no video or audiorecording of the defendant’s examination of Lescault be permitted, that Lescault mustbe alone with no interruptions, and that the examination must be conducted outside ofthe presence of the attorneys for the parties. Id. at *2. The EEOC did not object tothese requirements and the court granted the request. Dr. Bursztajn thereafter finalizedthe examination and asked one of his assistants to transcribe Lescault’s answers duringthe process. Dr. Bursztajn did not interpret the court’s order on “limited attendees” asbarring him from relying on an off-screen transcriptionist listening to the audio feed totranscribe answers. The EEOC argued that the entry into the room of an assistant to29© Duane Morris LLP 2023The EEOC Litigation Review – 2023
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