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PRESS RELEASE
5-29-12

EEOC Wins Rare Summary Judgment Verdict in Title VII Retaliation Case

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

URBANA, Ill. – 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, the U.S. Equal Employment Opportunity Commission (EEOC)  announced today. 

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 discrim­ination charge with the EEOC – even a  charge based on conduct that might occur in the future.  Thus, according to EEOC, Cognis con­ditioned  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. 

The  EEOC is responsible for enforcing federal laws against employment  discrimination.  Further information is  available at www.eeoc.gov.