The EEOC Litigation Review - 2023 - Report - Page 21
September 23, 2021, the EEOC sued BNSF under Title VII on behalf of Merker and
other aggrieved individuals adversely affected by similar conduct, but amended its
complaint on December 20, 2021, alleging that Merker had been harassed by coworkers’ sexual and demeaning comments and other conduct. Id. The amended
complaint further alleged that BNSF’s supervisors and human resources personnel
turned a “blind eye” to harassment, but did not assert a claim of retaliation on behalf of
Merker or other aggrieved individuals. Id. On April 15, 2022, the court granted in part
and denied in part BNSF’s motion to dismiss. The court found that the EEOC stated a
plausible claim for a sexual work environment on behalf of Merker, but failed to do so on
behalf of the other aggrieved individuals. Id. While the motion to dismiss was pending,
BNSF terminated Merker for alleged attendance issues. Id. Before the court entered its
decision on the motion to dismiss, the EEOC filed a TRO request for immediate
reinstatement of Merker and an order banning BNSF from retaliating against female
employees for cooperating with the EEOC in the pending lawsuit. Id. The court denied
the EEOC’s motion. At the outset of its analysis, it held that the EEOC could not prevail
on its motion because the amended complaint in the pending lawsuit did not state a
claim for retaliation — the very basis for its request for a TRO. Citing Carson, et al. v.
Simon, 978 F.3d 1051, 1059 (8th Cir. 2020), the court explained that while no single
factor of the TRO analysis is determinative, the “probability of success factor is the most
significant.” Id. at 15-16. It opined that “this factor requires the movant to demonstrate at
least a fair chance of prevailing,” or an “adequate showing of a nexus between the
unlawful conduct and the responsible individuals.” Id. at 16. In this respect, the court
observed that the likelihood of success “is considered in light of the elements of the
movant’s claim.” Id. The EEOC argued in support of its request for a TRO only that it
was likely to succeed in proving BNSF terminated Merker in retaliation for the EEOC’s
lawsuit based on her charge of discrimination. The court concluded that this claim,
however, was missing from the amended complaint — which only alleged hostile work
environment — and therefore could not substantiate the crucial factor (likelihood of
success) of its TRO request. The court nevertheless evaluated the merits of the EEOC’s
motion and found that it failed to show irreparable harm because the EEOC did not
demonstrate an emergency, that the requested TRO would preserve the status quo, or
irreparable harm due to Merker’s termination. Specifically, the court found the EEOC’s
attempted bureaucratic excuse for failing to file the TRO for more than two weeks
unavailing: “If the EEOC wishes to file TRO actions, it must comply with the law to do
so. This means it must find a way to timely file a TRO, just as any other party must do. .
.” Id. at 20. Further, the court held that the EEOC’s request for relief was not proper
preliminary injunctive relief, but rather affirmative relief — i.e., reinstatement of Merker’s
position. Id. at 21. Finally, the court found a lack of irreparable harm from Merker’s
termination because the EEOC failed to offer sufficient evidence supporting a “but for”
connection between the EEOC lawsuit and her firing. Id. at 22. Rather, the evidence
offered by BNSF demonstrated a disciplinary record relative to Merker that BNSF
argued was the cause of her termination, and the EEOC failed to offer sufficient
evidence to suggest otherwise.
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© Duane Morris LLP 2023
The EEOC Litigation Review – 2023
