In 2012, a plantiff named Kevin Stuckey was transferred from one Auto Zone store to another. His manager allegedly told him he was being transferred because of his race. The EEOC filed suit on Stuckey’s behalf.
On Stuckey’s first appeal to the 7th Circuit, the court found that a lateral move had not deprived or tended to deprive Stuckey of any employment opportunity and had not adversely affected Stuckey’s employment status. The EEOC and Stuckey appealed again for a rehearing.
Barrett voted with the 5-3 majority to deny Stuckey’s second appeal.
In a dissent from the majority, three judges found that Auto Zone deprived Stuckey of employment opportunities at all locations for which his race was not a match, and adversely affected him by telling him his job opportunities were limited by his race. The dissenting judges found that the initial judges’ opinion that had heard Stuckey’s first appeal had abridged brown v. board of education and endorsed “separate but equal.”
Kevin Stuckey Worked As A Sales Manager At AutoZone From 2008 To 2012; In 2012 He Was Transferred From A Store That Served A Largely Hispanic Clientele. According to the background in US EEOC v Autozone Inc on appeal from the USDC Northern District of Illinois Eastern Division 14C5579, “SYKES, Circuit Judge. From 2008 to 2012, Kevin Stuckey worked as a sales manager for the auto-parts retailer AutoZone, Inc. During his four years with the company, Stuckey was transferred between Chicago-area stores several times. None of these transfers entailed any loss in pay, benefits, or job responsibilities. In July 2012 he was transferred again, this time from a store on Kedzie Avenue that serves a largely Hispanic clientele. This transfer, too, involved no reduction in his pay or responsibilities.” [US Court of Appeals 7th Circuit, EEOC v Autozone, 15-3201, 6/20/17]
Stuckey Alleged That He Was Told He Was Being Transferred From The Kedzie Store To “Keep [The Kedzie Store] Predominantly Hispanic.” According to the background in US EEOC v Autozone Inc on appeal from the USDC Northern District of Illinois Eastern Division 14C5579, “In any event, the transfer decision came in July 2012. Harrington told Stuckey that he was being transferred to a store located at 103rd Street and South Michigan Avenue. Harris explained the reasons for the transfer this way: “[T]he [new] store had a need,” and “[Stuckey] was wanting to go … . [He] and his store manager couldn’t see eye to eye. And [the new store] was closer to [Stuckey’s] home, so I felt he would be the best one for that store … .” Stuckey recalls the event differently. He testified that when he called Harris to ask why he was being transferred, Harris replied that he was trying to “keep [the Kedzie store] predominantly Hispanic” and also that the “sales are down, he was basically trying to get the sales back up to where they’re supposed to be at.” [US Court of Appeals 7th Circuit, EEOC v Autozone, 15-3201, 6/20/17]
EEOC Filed Suit On Stuckey’s Behalf. According to US EEOC v Autozone Inc on appeal from the USDC Northern District of Illinois Eastern Division 14C5579, “The EEOC filed suit on Stuckey’s behalf alleging that the transfer violated 42 U.S.C. 2000e-2(a)(2), an infrequently litigated provision in Title VII that makes it unlawful for an employer “to limit, segregate, or classify his employees … in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” The district judge granted summary judgment for AutoZone, holding that the transfer was not an adverse employment action.” [US Court of Appeals 7th Circuit, EEOC v Autozone, 15-3201, 6/20/17]
Judge Sykes Wrote For The Court Arguing, “The Evidence Does Not Permit A Reasonable Jury To Find That Stuckey’s Lateral Transfer Deprived Or Even Tended To Deprive Him Of Any Employment Opportunity Or Otherwise Adversely Affected His Employment Status.” According to US EEOC v Autozone Inc on appeal from the USDC Northern District of Illinois Eastern Division 14C5579, “It’s well established that a purely lateral job transfer does not normally give rise to Title VII liability under subsection (a)(1) because it does not constitute a materially adverse employment action. See Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 744 (7th Cir. 2002) (“[A] purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance … [,] cannot rise to the level of a materially adverse employment action. A transfer involving no reduction in pay and no more than a minor change in working conditions will not do, either.”) (quotation marks omitted); Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720, 730–31 (7th Cir. 2009). The result is the same in this suit under subsection (a)(2). The evidence does not permit a reasonable jury to find that Stuckey’s lateral transfer deprived or even tended to deprive him of any employment opportunity or otherwise adversely affected his employment status. Indeed, at oral argument the EEOC disclaimed any interest in an opportunity to present such evidence, resting its entire case on the argument that no such evidence is required. For the reasons we’ve explained, that’s an incorrect reading of the statute. The district judge properly entered summary judgment for AutoZone Affirmed.” [US Court of Appeals 7th Circuit, EEOC v Autozone, 15-3201, 6/20/17]
November, 21 2017: Amy Coney Barrett Voted With The 5-3 Majority To Deny En Banc Rehearing Of EEOC v. Autozone. According to US EEOC v Autozone Inc On Petition for Rehearing En Banc, the question as decided “November 21, 2017” “Before Wood, Chief Judge, and Flaum, Easterbrook, Kanne, Rovner, Sykes, Hamilton and Barrett, Circuit Judges.” “PER CURIAM. On consideration of the EEOC’s petition for rehearing, the panel has voted unanimously to deny rehear-ing. A judge in active service called for a vote on the request for rehearingen banc. Amajority of judgesin active servicevoted to denyrehearing en banc.Chief Judge Woodand Judges Rovnerand Hamilton votedto grant rehearingen banc. It is therefore ordered that the petition for rehearing and for rehearing en banc is DENIED” [Justia, US Court of Appeals 7th Circuit, EEOC v. Autozone, 15-3201, 11/21/17]
October 31, 2017: Amy Coney Barrett Was Confirmed To The 7th Circuit. According to SCOTUS Blog, “On Oct. 31, 2017, Barrett was confirmed to the 7th Circuit by a vote of 55 to 43. Three Democratic senators – her home state senator, Joe Donnelly; Tim Kaine of Virginia; and Joe Manchin of West Virginia – crossed party lines to vote for her, while two Democratic senators (Claire McCaskill of Missouri and Robert Menendez of New Jersey) did not vote.” [SCOTUS Blog, 9/21/20]
In A Dissent, Chief Judge Wood Argued That Autozone’s Actions “At A Minimum, Tend[ed] To Deprive A Person Of Employment Opportunities (I.E., All Jobs At The Locations For Which His Race Is Not A Match) And Adversely Affect[ed] His Status As An Employee By Telling Him That His Job Opportunities With This Employer Are Limited By His Race.” According to a dissent by Chief Judge Wood, and judges Rovner and Hamilton in US EEOC v Autozone Inc On Petition for Rehearing En Banc, “The facts of this case are (I hope) unusual: we have a plausible allegation, backed up with evidence appropriately pre-sented atthe summary judgmentstage, that anemployer is deliberately maintaining racially segregated workplaces. Such a practice is one that, at a minimum, tends to deprive a person of employment opportunities (i.e., all jobs at the locations for which his race is not a match) and adversely affects his status as an employee by telling him that his job opportunities with this employer are limited by his race. Perhaps the EEOC could have puttogether more evidenceto this effectbut, in my view, the statute’s broad language—which extends to actions that “tend to deprive any individual”—does not re-quire a factual showing any more extensive than the one that the Commission already has provided.” [Justia, US Court of Appeals 7th Circuit, EEOC v. Autozone, 15-3201, 11/21/17]
Wood Wrote That The Panel’s Decision Was “Contrary To The Position That The Supreme Court Has Taken In Analogous Equal Protection Cases As Far Back As Brown V. Board Of Education” According to a dissent by Chief Judge Wood, and judges Rovner and Hamilton in US EEOC v Autozone Inc On Petition for Rehearing En Banc, “Under the panel’s reasoning, this separate-but-equal arrangement is permissibleunder Title VIIso long asthe “separate” facilitiesreally are “equal.”In other words,if a Title VII plaintiff cannot prove that her employer’s intentional maintenance of raciallysegregated facilities diminishedher “pay, benefits, or job responsibilities,” then her employer has notviolated section 2000e-2(a).See EEOC v.AutoZone, Inc., 860 F.3d 564, 565, 566, 567, 568 (7th Cir. 2017). That conclusion, in my view, is contrary to the position that the Supreme Court hastaken in analogousequal protection casesas far backas Brown v.Board of Education,347 U.S. 483(1954), and itis contrary tothe position thatthis court tookin Kyles v.J.K. Guardian Security Services, Inc., 222 F.3d 289 (7th Cir. 2000)” [Justia, US Court of Appeals 7th Circuit, EEOC v. Autozone, 15-3201, 11/21/17]
Wood Concluded His Dissent Blasting The Panel With Endorsing “The Erroneous View That “Separate-But-Equal” Workplaces Are Consistent With Title VII.” According to a dissent by Chief Judge Wood, and judges Rovner and Hamilton in US EEOC v Autozone Inc On Petition for Rehearing En Banc, “Because the panel’s opinion, as I read it, endorses the erroneous view that “separate-but-equal” workplaces are consistent with Title VII, I respectfully dissent from denial of rehearing en banc.” [Justia, US Court of Appeals 7th Circuit, EEOC v. Autozone, 15-3201, 11/21/17]