Chemical Company Cognis Unlawfully Fired Employee for Refusing to Waive Charge Rights, Federal Court Holds

A federal judge has ruled that Cognis Corporation,  a German-based part of multinational chemical company BASF, unlawfully retaliated against an employee for refusing to waive his rights to file a discrimination charge, according to the U.S. Equal Employment Opportunity Commission (EEOC).

Chief U.S. District Judge Michael P. McCuskey of U.S. District Court for the Central District of Illinois, in an opinion issued May 23, held as a matter of law that Cognis illegally retaliated against the employee.  The court said that Cognis fired Steven Whitlow after he revoked his willingness to be bound by a “last-chance”  employment agreement because it would have stripped him of his rights to seek relief for discrimination or to file a charge with the EEOC.

In its lawsuit filed Aug. 18, 2010, the EEOC had alleged that Germany-based Cognis retaliated against Whitlow, a longtime employee at its Kankakee, Ill.,  facility, in violation of Title VII of the Civil Rights Act of 1964 (EEOC v. Cognis Corp., 10-CV-2182, C.D.  Ill.).

As a condition of his continued employment, Cognis required Whitlow to sign a “last-chance” agreement that prohibited him from filing a discrim¬ination charge with the EEOC – even a charge based on conduct that might occur in the future.  Thus, according to EEOC, Cognis con¬ditioned Whitlow’s employment on his agreement to give up his right to make any federal complaint of employment discrimination.  When Whitlow refused to be bound by that agreement, the company fired him, the court found.

The EEOC’s lawsuit also charged that a class of employees who signed similar last-chance agreements was also retaliated against because Cognis forced them to make a choice between termination and signing agreements that stripped them of their right to file charges and seek relief for future discriminatory conduct – or at least deterred them from doing so.

At the court’s invitation, EEOC filed a summary judgment motion on Jan. 6, 2012, asking the court to resolve all issues in the case in EEOC’s favor, leaving the only issue for trial being the question of what damages are due to Whitlow and the class.

In granting the EEOC’s motion with regard to Whitlow, the court noted, “It is not often that a plaintiff moves for or is granted summary judgment on a Title VII retaliation claim.”  Yet the court held that no jury could reasonably conclude that Cognis did not unlawfully retaliate against Whitlow when it fired him, and that Cognis’s argument to the contrary “defies simple logic.”  The only issue now remaining for trial with regard to Whitlow is the amount of damages due to him.

As for the class of employees who signed last-chance agreements but were not terminated as Whitlow was, the court denied EEOC’s summary judgment motion, and those claims will now proceed toward trial.

The court held that a jury could conclude that Cognis engaged in unlawful anticipatory retaliation against the class when it required those employees to sign agreements waiving their right to file charges of discrimination out of fear that they might seek to exercise that civil right.  The court noted that the language of the agreements supported the inference that Cognis acted unlawfully out of just such a fear “because fear of such protected activity seems to be one of the only reasons for placing the retaliatory provision” in the last chance agreements.

“Filing EEOC charges is a fundamental right of American employees, and this agency always stands ready to protect that right,” said EEOC’s Chicago District Director John Rowe.  “This court’s opinion should cause employers to remember that seeking to dissuade employees from exercising that right is not only bad policy, it’s a violation of federal law which can give rise to very substantial liability.”

The EEOC’s supervisory trial attorney on the case, Gregory Gochanour of Chicago, added, “We are very pleased with this court’s decision, both with regard to Whitlow and to the class.  Whitlow is a brave man, willing to risk— and actually suffer—termination from a job he held for 19 years, rather than let Cognis strip him of his rights. We expect he will be fairly compensated for his damage attributable to Cognis’s unlawful actions.  Beyond that, we are highly optimistic that at trial, the jury will find in favor of the other class members and award them just compensation.”

In addition to Gochanour and EEOC Regional Attorney John Hendrickson, the EEOC’s litigation team included trial attorneys Deborah Hamilton and Brad Fiorito of the Chicago District Office.

Cognis was acquired in December 2010 by BASF, a multinational chemical company.  According to company information, BASF Corporation, headquartered in Florham Park, N.J., is the North American affiliate of BASF SE, based in Ludwigshafen, Germany.  According to company information, BASF Corp. has about 16,400 employees in North America and had sales of $17.7 billion in 2010.

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