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EEOC motion in San Jose bakery lawsuit example of new recipe, attorney says

By Sean Fowler | May 18, 2016

SAN JOSE, Calif. (Legal Newsline) – A contentious discrimination case will continue in California, after a U.S. District Court Judge rejected a move made by the Equal Employment Opportunity Commission (EEOC) that is becoming more common.

"Employers facing EEOC litigation must be cognizant of this aggressive strategy that has been increasingly utilized by the government," Alex Karasik, an associate attorney at the Chicago office of Seyfarth Shaw LLC, recently told Legal Newsline.

In April, an employee of Peters' Bakery in San Jose filed an accusation of racism against the bakery with the EEOC. When the employee put their accusations online, owner Charles Peters filed a defamation lawsuit. This, in turn, caused the EEOC to add a retaliation charge to the racism lawsuit.

After deposing the owner, the EEOC used the tactic Karasik warns of -- it filed for a partial summary judgment, using Peters' own deposition as evidence on its behalf.

"These EEOC summary judgment motions are crafted using an employer’s deposition testimony, where the EEOC will predictably and selectively cite statements that are unfavorable to the employer," Karasik said. 

 He warned that employers must be prepared for this, insisting that any positive points they want made be added to the record of the deposition. 

It was knowing that advice that helped Peters.

The EEOC moved for a partial summary judgment of the retaliation charge, basically asserting that since the defamation lawsuit followed the charge of racism, it was clearly retaliatory.

Peters, however, countered that the EEOC was leaving out a key part of his deposition -- that he did not know about the accusations until his girlfriend saw them online, and it was then that he filed the defamation suit. 

U.S. District Judge Beth Freeman agreed, saying the EEOC had failed to establish what the courts call "but-for" cause, a key factor of summary judgment in retaliation suits.

"While the EEOC predictably did not cite Mr. Peters’ potentially legitimate reason for filing the defamation charge, the employer was able to utilize this deposition testimony to overcome the EEOC’s summary judgment motion," Karasik said.

While the EEOC's motion was unsuccessful, Karasik says that doesn't reflect on the chances for the case itself.  

"While this ruling illustrates that summary judgment was not appropriate, the court nonetheless noted that the EEOC’s evidence was 'quite strong,'" Karasik said. "Accordingly, while the employer survived this potentially dispositive motion, it will still have a fight on its hands given the court’s sentiment about the EEOC’s favorable evidence."

But while the case may still go against the bakery, Karasik warns strongly that private businesses must be prepared for this "recipe" of motions for quick summary judgment following the initial deposition.

 "An employer who is not well prepared for these EEOC depositions could potentially make statements that are detrimental to its position, or alternatively, pass up an opportunity to get its favorable facts into the record," he said.

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Organizations in this Story

U.S. District Court for the Northern District of California, San Jose Division U.S. Equal Employment Opportunity Commission

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