The EEOC Litigation Review - 2023 - Report - Page 29
G.
Rulings On Procedural Issues In EEOC Litigation
Government enforcement lawsuits often raise peculiar procedural issues. Decisions in
2022 were no exception
In EEOC v. American Flange & Greif, Inc., 2022 U.S. Dist. LEXIS 94683 (N.D. Ill. May
26, 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 and
ultimately terminated his employment due to his disability in violation of the ADA. The
defendant Greif, Inc. filed a motion to dismiss for failure to exhaust administrative
remedies, and the court denied the motion. Griffin called in sick on two occasions within
the first month of his employment and provided a doctor’s note stating that his absences
stemmed from a seizure disorder and requesting that they be excused. The defendant
declined to excuse either absence. Griffin subsequently left work early for reasons
unrelated to his disability, and the defendants ultimately terminated Griffin for the
unexcused attendance issues. Griffin thereafter filed an EEOC charge against the
defendant American Flange, which did not name the defendant Greif, Inc. The EEOC’s
ensuing investigation revealed that: (i) “both Greif and American Flange employed the
employees at the American Flange facility”; and (ii) “all temporary employees would
be 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 charge
concerned Greif's own conduct and employment practices, given Greif's control over
American Flange's operations. Id. Greif moved to dismiss, arguing that the
Commission’s claim against Greif should be dismissed for failure to exhaust
administrative remedies. Greif asserted that the EEOC “failed to provide Greif notice of
a 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 to
believe both Greif and American Flange discriminated against Griffin. The court opined
that taking the EEOC’s allegations as true, the EEOC adequately alleged that Greif had
notice of the claims against it. Accordingly, the court ruled that the EEOC adequately
alleged facts to establish that Greif was properly before the Court as a defendant. The
court 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, alleging
that the defendant subjected him to discrimination on the basis of his disability in
violation of the ADA. The EEOC filed a motion for Rule 37(b) sanctions, and the court
denied the motion. The defendant previously requested, on recommendation from
Lescault’s psychologist Dr. Bursztajn, that the court order that no video or audio
recording of the defendant’s examination of Lescault be permitted, that Lescault must
be alone with no interruptions, and that the examination must be conducted outside of
the presence of the attorneys for the parties. Id. at *2. The EEOC did not object to
these requirements and the court granted the request. Dr. Bursztajn thereafter finalized
the examination and asked one of his assistants to transcribe Lescault’s answers during
the process. Dr. Bursztajn did not interpret the court’s order on “limited attendees” as
barring him from relying on an off-screen transcriptionist listening to the audio feed to
transcribe answers. The EEOC argued that the entry into the room of an assistant to
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© Duane Morris LLP 2023
The EEOC Litigation Review – 2023
