In her three years on the Seventh Circuit, Judge Barrett grappled with hot-button employment law issues like class action waiver clauses in arbitration agreements and the application of federal anti-discrimination laws.
"Judge Barrett has not authored very many employment law-related opinions," said Carl Tobias, a professor at the University of Richmond School of Law whose academic work includes a particular emphasis federal judgeship selections. "However, most of them suggest that she is more inclined to favor employers over employees in employment disputes."
If confirmed, Judge Barrett would succeed the late Justice Ruth Bader Ginsburg on the nation's top bench, culminating a multiyear stretch in which Judge Barrett was rumored to be a top contender for the U.S. Supreme Court openings that ultimately went to Justices Neil Gorsuch and Brett Kavanaugh.
In announcing her nomination from the White House, President Donald Trump called Judge Barrett a "woman of unparalleled achievement, towering intellect, sterling credentials and unyielding loyalty to the Constitution."
Here, Law360 looks at seven decisions that offer a glimpse into her mindset on workplace law issues.
EEOC v. Costco Wholesale Corp.
In mid-2018, Judge Barrett penned a unanimous opinion upholding the U.S. Equal Employment Opportunity Commission's trial win in a suit accusing Costco Wholesale Corp. of failing to protect a female employee from a customer who stalked and harassed her for over a year. Costco fired the employee after she didn't report back to work on time after taking unpaid medical leave due to the trauma caused by the ordeal.
The EEOC had sued Costco alleging it subjected the woman to a hostile work environment by tolerating the individual's harassment. The three-judge appellate panel led by Judge Barrett let stand a $250,000 verdict against the retailer, writing that jurors could reasonably conclude that the harasser's behavior was "severe or pervasive enough" to have made the work environment hostile.
"A reasonable juror could conclude that being hounded for over a year by a customer despite intervention by management, involvement of the police, and knowledge that he was scaring her would be pervasively intimidating or frightening to a person 'of average steadfastness,'" Judge Barrett wrote.
Judge Barrett and the panel, reversing the lower court, also held that the worker was entitled to back pay for the time she spent on unpaid medical leave and remanded the issue back to the district court to decide.
"The EEOC can recover backpay on [the worker's] behalf if it can show that [her] work environment was so hostile that she was 'forced to take unpaid leave,'" Judge Barrett wrote. "As with constructive discharge, a mere causal link between the discrimination and the change in employment status is insufficient. The victim of the harassment must establish that her working conditions were so objectively intolerable that they forced a change in employment status — here, from regular employment to unpaid leave."
The case is EEOC v. Costco Wholesale Corp., case numbers 17-2432 and 17-2454, in the U.S. Court of Appeals for the Seventh Circuit.
Carmen Wallace v. GrubHub Inc.
In a case involving arbitration, Judge Barrett on Aug. 4 wrote on behalf of a unanimous three-judge panel that several groups of GrubHub delivery drivers "did not even try" to show that the interstate movement of goods was a central part of their job description, which they needed to prove in order to be covered by Section 1 of the Federal Arbitration Act, which "carves out a narrow exception" to the enforcement of arbitration agreements. As a result, drivers in two proposed wage-and-hour class actions must arbitrate their claims.
The provision at issue says the FAA doesn't cover coverage "contracts of employment" of "seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." Although the drivers had argued that components of the food they transport traveled over state lines to reach local restaurants, Judge Barrett didn't buy the argument that it makes the drivers' contracts fall within Section 1's purview.
"A package of potato chips, for instance, may travel across several states before landing in a meal prepared by a local restaurant and delivered by a GrubHub driver; likewise, a piece of dessert chocolate may have traveled all the way from Switzerland," Judge Barrett said. "But to fall within the exemption, the workers must be connected not simply to the goods, but to the act of moving those goods across state or national borders."
"By erasing that requirement from the statute, the plaintiffs' interpretation would sweep in numerous categories of workers whose occupations have nothing to do with interstate transport — for example, dry cleaners who deliver pressed shirts manufactured in Taiwan and ice cream truck drivers selling treats made with milk from an out-of-state dairy," she added.
The case is Carmen Wallace et al., v. GrubHub Holdings Inc., case numbers 19-1564 and 19-2156, in the U.S. Court of Appeals for the Seventh Circuit.
Lisa Purtue v. Wisconsin Department of Corrections
In a ruling that went against a worker, Judge Barrett in June led a three-judge panel in holding that Wisconsin prison guard Lisa Purtue was rightly fired after her employer discovered through video surveillance that she falsely claimed that a prisoner hit her with an empty box of Little Debbie snack cakes that he hurled from his jail cell.
Purtue, who worked as a correctional officer at Dodge Correctional Institution for about three years, was fired in 2016 after her superiors found that she wasn't truthful about the incident, which violated a rule against knowingly giving false information to prison authorities. She subsequently sued the Wisconsin Department of Corrections in March 2018 alleging that her firing was rooted in sex discrimination.
Judge Barrett said Purtue, who was appealing an award of summary judgment against her, offered only circumstantial evidence that wasn't enough for jurors to "draw that inference," and that the situation was not one "in which the punishment was grossly out of proportion to the offense."
"In sum, Purtue has not identified evidence tending to indicate that Dodge did anything other than fire her for her admitted violation of Department rules," Judge Barrett said. "No reasonable jury could infer that Dodge discriminated against her because of her sex, so the district court was right to enter summary judgment in favor of the defendants."
The case is Lisa Purtue v. Wisconsin Department of Corrections et al., case number 19-2706, in the U.S. Court of Appeals for the Seventh Circuit.
Lydia Vega v. Chicago Park District
Judge Barrett and a panel of judges in April upheld a $300,000 award in favor of a Hispanic park supervisor who claimed she was discriminated against due to her national origin, in violation of Title VII.
Judge Barrett ruled that the trial court was right to reduce a jury's original $750,000 verdict to $300,000 — the maximum allowed under Title VII — after dismissing a separate claim post-trial.
In reaching that conclusion, the panel affirmed the Northern District of Illinois' decision denying the park operator's motion for judgment as a matter of law on Lydia Vega's Title VII claim. The panel said the weight of circumstantial evidence Vega produced that her termination was motivated by illegal discrimination weighed in favor of her claim, including her decadeslong record of being a good employee, details of a shoddy investigation into whether she filed false time sheets, examples of other Hispanic employees being mistreated, and evidence that her employer cut corners around "union commitments" when it fired her.
"In a Title VII case, 'the sole question that matters' is '[w]hether a reasonable juror could conclude that [the plaintiff] would have kept h[er] job if [s]he had a different ethnicity, and everything else had remained the same,'" Judge Barrett said, citing circuit precedent. "So, the fact that Vega relied mainly on circumstantial rather than direct evidence is of no moment. What matters is whether she presented enough evidence to allow the jury to find in her favor — and she did."
The case is Lydia Vega v. Chicago Park District, case numbers 19-1926 and 19-1939, in the U.S. Court of Appeals for the Seventh Circuit.
Pamela Herrington et al. v. Waterstone Mortgage Corp.
In late 2018, the Seventh Circuit, led by Judge Barrett, ruled unanimously that judges and not arbitrators should decide whether parties assented to class or collective arbitration in a hybrid wage-and-hour class action by plaintiff Pamela Herrington against Waterstone Mortgage.
Although a trial court had sent to the case to arbitration, the panel revisited the trial court's decision to nix a class waiver provision in Herrington's arbitration agreement with her employer that allowed the arbitration to proceed on a collective basis, which resulted in a $10 million award for about 175 workers.
Judge Barrett noted that the high court's landmark decision earlier that year in Epic Systems Corp. v. Lewis , which upheld the constitutionality of arbitration agreements containing class action waivers, made it wrong for the trial court to find a similar class waiver in Herrington's pact to be unlawful. But Judge Barrett said the high court's ruling didn't address "what happens next" in terms of whose job it is to interpret an arbitration agreement to figure out if it authorizes class arbitration.
Although Judge Barrett said Herrington presented a "weak" argument that her arbitration pact explicitly allowed for class arbitration despite the waiver's existence, the judge said "someone must evaluate it" and that the job should fall to a district court judge.
"We conclude that the availability of class or collective arbitration is a threshold question of arbitrability," Judge Barrett wrote. "On remand, the district court, rather than the arbitrator, must evaluate Herrington's contract with Waterstone to determine whether it permits class or collective arbitration."
Following the remand, U.S. District Judge Barbara Crabb concluded that the arbitration pact didn't authorize collective arbitration, vacating the initial $10 million award and directing that Herrington's claims be arbitrated on an individual basis. Judge Crabb recently confirmed an arbitration award for Herrington of about $15,000 in damages and $1.1 million in attorney fees.
The case is Pamela Herrington et al. v. Waterstone Mortgage Corp., case number 17-3609, in the U.S. Court of Appeals for the Seventh Circuit.
Terry Smith v. Illinois Department of Transportation
A former Illinois traffic patrol driver failed to make the case that the state's Department of Transportation fired him in retaliation for his complaints of racial bias by coworkers, according to an August 2019 panel decision authored by Judge Barrett, who said a jury could reasonably conclude that his unsafe driving and poor job performance led to his dismissal.
In upholding a trial court's summary judgment award to the Illinois DOT over race-based claims brought by plaintiff Terry Smith, who is Black, Judge Barrett said the worker failed to tie his firing to his allegations of bias. In nixing Smith's claim that he was subjected to a hostile work environment based on his race, Judge Barrett also concluded that he failed to connect the harassment he says he experienced, like having profanities hurled his way, to a category protected by Title VII — namely, race.
"While the epithets may have made for a crude or unpleasant workplace, 'Title VII imposes no "general civility code,"'" Judge Barrett wrote, quoting a 2013 Supreme Court ruling in Vance v. Ball State University, a decision written by Justice Samuel Alito that held that only employees with the authority to hire, fire or promote others count as supervisors whose actions saddle an employer with vicarious liability under Title VII.
"Because Smith introduced no evidence that his supervisors swore at him because he was black, the profanity that he describes does not establish a hostile work environment under Title VII," Judge Barrett added.
However, Judge Barrett acknowledged that Smith did point to one incident "that plainly constitutes race-based harassment" in which he alleged that a particular racist slur referring to Black people was hurled his way, but said that still wasn't enough to save his claim.
"The n-word is an egregious racial epithet," Judge Barrett said. "That said, Smith can't win simply by proving that the word was uttered. He must also demonstrate that [a colleague's] use of this word altered the conditions of his employment and created a hostile or abusive working environment. And he must make this showing 'from both a subjective and an objective point of view.'"
"He introduced no evidence that [the colleague's] use of the n-word changed his subjective experience of the workplace," the judge added.
The case is Terry Smith v. Illinois Department of Transportation, case number 18-2948, in the U.S. Court of Appeals for the Seventh Circuit.
Robert Smith v. Rosebud Farm Inc.
In a mid-2018 decision, Judge Barrett led a three-judge panel in upholding a trial verdict in favor of Robert Smith, a butcher in grocery store Rosebud Farm Inc. who lodged claims under Title VII and other federal and state statute that he had been the target of illegal racial and sexual harassment by his male colleagues and supervisor.
Smith originally sued Rosebud in 2011, alleging that his co-workers and supervisors touched his buttocks and genitalia and made inappropriate racial comments to him. When he filed a charge at the EEOC over the alleged conduct, his coworkers retaliated against him by freezing him out and damaging his property, among other things, the complaint said.
Judge Barrett and her colleagues concluded that Smith's Title VII claim was valid since he presented enough evidence that female workers weren't subjected to the same treatment.
"Rosebud contends that Smith's evidence demonstrates that the other men in the shop engaged in 'sexual horseplay,' not sex discrimination," Judge Barrett said. "But Rosebud is wrong about that: the evidence supports the inference that Smith's coworkers harassed him because he was male. The shop was a mixed‐sex workplace, and only men were groped and taunted. Because men were treated differently from women at Rosebud, a reasonable jury could conclude that Smith was tormented because of his sex."
The case is Robert Smith v. Rosebud Farm Inc. d/b/a/ Rosebud Farmstand, case number 17-2626, in the U.S. Court of Appeals for the Seventh Circuit.
--Additional reporting by Danielle Nichole Smith, Dave Simpson, Braden Campbell, Tim Ryan and Kevin Stawicki. Editing by Alanna Weissman and Emily Kokoll.
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