COLUMBIA, S.C. (Legal Newsline) – A third-party defendant is seeking a judgment on the pleadings in a discrimination lawsuit filed by the Equal Employment Opportunity Commission from the U.S. District Court of South Carolina’s Columbia Division.

Carolina Personnel Services filed a motion for judgment on the pleadings on Sept. 14 in the district court, and the U.S. Equal Employment Opportunity Commission filed a response Oct. 5.

The EEOC sued Michigan-based Akebono Brake Corp. in November 2016 over allegations of violating federal civil rights laws when it fired Clintoria Burnett for wearing skirts as dictated by her faith instead of pants. Third-party defendant Carolina Personnel Services Inc. (CPS) was the temporary staffing agency that conditionally hired Burnett to work at Akebono and sued by Akebono.

As a Pentecostal Christian and observant member of the Apostolic Faith Church of God and True Holiness, Burnett was fired for not wearing pants and the EEOC filed suit on Burnett’s behalf. CPS ultimately revoked the temporary offer at Akebono’s direction.

While the EEOC argued Akebono was solely accountable for annulling the conditional offer, it never claimed judgment against CPS.

However Akebono has asserted a series of third-party claims against CPS in order to "shift liability" under Title VII to CPS, the motion states.

Akebono argues in the third-party complaint that CPS ended Burnett’s employment without explaining to Akebono the temporary hire needed a religious accommodation, alleging five causes of action, including breach of contract, breach of the implied covenant of good faith and fair dealing, equitable indemnity, contribution and promissory estoppel, CPS's motion stated.

Noting that all of Akebono’s claims are preempted by Title VII, the district court notes the “claims are barred because allowing employers to shift their liability for unlawful discrimination by contract or otherwise would frustrate Congress’s purpose of making employers responsible for discriminatory behavior in the workplace,” according to the CPS motion.

Citing Whitaker v. Milwaukee County from 2014, CPS noted “that there is broad agreement that, under Title VII, joint employers are not vicariously liable for each other’s discriminatory conduct,” according to the motion, adding the case before them the EEOC precisely alleged Akebono was solely responsible.

“If the EEOC can prove these allegations, then Akebono will be liable for its own act of religious discrimination, and allowing Akebono to shift liability for its own discriminatory decision would plainly frustrate the purposes of Title VII,” CPS' motion stated.

“For the foregoing reasons, the court should grant judgment on the pleadings in favor of CPS on every third party claim asserted against it by Akebono, and CPS should be dismissed from this action with prejudice,” the motion concluded.

The EEOC commented on the matter in an official letter; however it noted by submitting a statement, it does not waive its right to make similar arguments in the litigation's future stages. 

The EEOC states that if indeed it is Akebono’s goal to shift blames to CPS its alleged conduct that violated the law, "or attempting to set off any putative sums Burnett received from CPS and/or CIS—is patently offensive to the purpose and goals of Title VII," according to the letter. 

"EEOC does not assert that Defendant Akebono —the entity that made the discriminatory demand—was Burnett’s direct employer," according to the letter. "EEOC, instead, seeks to hold defendant Akebono liable for its per se discriminatory conduct under the joint employer theory."

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