TABLE OF AUTHORITIES

Federal Cases

Baker v. City of St. Petersburg,
400 F.2d 294 (5th Cir. 1968)..................................................................... 33

Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006)............................................................................... 34-35

Chaney v. Plainfield Healthcare Ctr.,
612 F.3d 902 (7th Cir. 2010)..................................................................... 27

EEOC v. Int’l Longshoremen’s Ass’n,
511 F.2d 273 (5th Cir. 1975)......................................................... 21, 24, 28

Evans v. Sheraton Park Hotel,
503 F.2d 177 (D.C. Cir. 1974)................................................................... 24

Ferrill v. Parker Grp., Inc.,
168 F.3d 468 (11th Cir. 1999)............................................................. 21, 23

Firefighters Inst. for Racial Equality v. City of St. Louis,
549 F.2d 506 (8th Cir. 1977)..................................................................... 33

Forkkio v. Powell,
306 F.3d 1127 (D.C. Cir. 2002)........................................................... 16, 31

Henry v. Milwaukee Cty.,
539 F.3d 573 (7th Cir. 2008).......................................................... 16, 29-30

James v. Booz-Allen & Hamilton, Inc.,
368 F.3d 371 (4th Cir. 2004)............................................................... 16, 31

Knight v. Nassau Cty. Civil Serv. Comm’n,
649 F.2d 157 (2d Cir. 1981)................................................................. 21-23

Kyles v. J.K. Guardian Sec. Servs., Inc.
222 F.3d 289 (7th Cir. 2000)............................................................... 20, 27

Lewis v. City of Chicago,
496 F.3d 645 (7th Cir. 2007)............................................................... 32, 36

Loyd v. Phillips Bros., Inc.,
25 F.3d 518 (7th Cir. 1994)....................................................................... 19

Minor v. Centocor, Inc.,
457 F.3d 632 (7th Cir. 2006)................................................................ 32-33

Nanda v. Bd. of Trs. of Univ. of Ill.,
303 F.3d 817 (7th Cir. 2002)............................................................... 16, 31

Russello v. United States,
464 U.S. 16 (1983)..................................................................................... 35

Sweeney v. West,
149 F.3d 550 (7th Cir. 1998)..................................................................... 31

Traylor v. Brown,
295 F.3d 783 (7th Cir. 2002)..................................................................... 36

United States v. Int’l Longshoremen’s Ass’n,
460 F.2d 497 (4th Cir. 1972)..................................................................... 25

Federal Statutes

28 U.S.C. § 1291.............................................................................................. 3

28 U.S.C. § 1331.............................................................................................. 3

28 U.S.C. § 1345.............................................................................................. 3

42 U.S.C. § 1983............................................................................................ 22

42 U.S.C. § 2000e-2(a)................................................................................... 19

42 U.S.C. § 2000e-2(a)(1)................................................................... 20, 31, 35

42 U.S.C. § 2000e-2(a)(2)........................................................................ passim

42 U.S.C. § 2000e-2(c)(2)......................................................................... 24, 28

42 U.S.C. § 2000e-5......................................................................................... 3

STATEMENT OF JURISDICTION

This action was authorized and initiated pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1345. The district court entered judgment on August 4, 2015. AD-012.[1] On October 2, 2015, the Commission filed a timely notice of appeal. DE-84.[2] This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

I. Given the plain language of 4 2 U.S.C. § 2000e-2(a)(2), which prohibits an employer from segregating employees based on race, whether an employer violates Title VII when it transfers an employee for the purpose of racially segregating its workforce, regardless of whether the transfer also results in material or economic harm.

II. Whether a reasonable jury could find that AutoZone transferred black employee Kevin Stuckey because of his race, to segregate him from Hispanic staff and customers.

STATEMENT OF THE CASE

I. Nature of the Case and Course of Proceedings

On July 22, 2014, the Equal Employment Opportunity Commission

(“EEOC” or “Commission”) filed this Title VII action in district court alleging that AutoZone, Inc. (“AutoZone”), violated Title VII by involuntarily transferring black employee Kevin Stuckey out of a predominantly Hispanic store, on the basis of his race, to limit or eliminate the number of black employees at that location. DE-1.

On June 11, 2015, AutoZone filed an amended motion for summary judgment arguing, inter alia, that the Commission could not establish a prima facie case because its transfer of Stuckey did not amount to a materially adverse action. DE-53. The Commission filed a response in opposition to AutoZone’s motion, asserting, inter alia, that AutoZone’s transfer of Stuckey violated 42 U.S.C. § 2000e-2(a)(2), the subsection of Title VII prohibiting the limitation, segregation, or classification of employees based on race. DE-56. On August 4, 2015, the district court granted summary judgment to AutoZone on the Commission’s claim and entered final judgment in the case. AD-012. On October 2, 2015, the Commission timely filed this appeal challenging the district court’s final judgment. DE-84.

II. Statement of Facts

AutoZone has 5,600 retail stores in the United States (Apx-009, Cleveland 27) and about 110 stores in the Chicago, Illinois area. Apx-008 (Cleveland 23). One of its retail stores is located in the southwest side of Chicago, at 4416 S. Kedzie, referred to as the Kedzie Store, or Store 4416. Apx-042 (Stuckey Decl. ¶ 4). The Kedzie store is located in a “predominantly Hispanic neighborhood for . . . a three-mile radius east, west, north, south.” Apx-036 (Nash 18). The customer base there was “literally 95 to 98 percent Hispanic.” Apx-018 (Harrington 9).

Rob Harris is a district manager at AutoZone, and manages a district comprised of approximately 10 to 12 AutoZone stores. Apx-028 (Harris 17-18). In July 2012, Harris’s district included Store 4416. Apx-031 (Harris 44). Harris was aware that the large majority of customers at Store 4416 were Hispanic. Apx-030 (Harris 34).

Like the customer base, the composition of AutoZone staff at the Kedzie store has also been majority Hispanic. Apx-004 (Brown 29). Between May 2011 and July 2012, for example, the Kedzie store staff was comprised of 26 Hispanic employees, four black employees, one white employee, and one employee with no recorded race code. Apx-057 ¶ 4; Apx-059-60. Among the four black employees at the time was Kevin Stuckey. Id. Stuckey was a parts sales manager. Apx-029 (Harris 23). A parts sales manager opens and closes the retail store, helps customers, assigns tasks to store employees, and assists the store manager with various tasks in the store. Apx-028 (Harris 20). Stuckey, who began his employment with AutoZone in 2008, worked at the Kedzie location soon after that location opened in approximately 2010 until July 2012, with the exception of a few intervening months working at an AutoZone store in Maywood, Illinois. Apx-042 (Stuckey Decl. ¶¶ 1, 3-5).

When asked whether there were any issues at Store 4416 with customers having racial preferences for staff assistance, Vernon Harrington, who was manager of that location, testified “Absolutely.” Apx-019 (Harrington 15). Harrington, a black employee (Apx-019, Harrington 16), was the Kedzie store manager from late 2011 through around August 2012. Apx-017, 23 (Harrington 6-7, 55). There were times when Harrington, Stuckey, and a few Hispanic associates were available to help customers, and eight or ten customers would wait to speak only with the Hispanic associates and “would not allow us to help them, even as far as ringing them up [at the cash register].” Apx-019 (Harrington 16). When asked whether Harris ever made a comment to Harrington “to the effect that he thought that 4416 should be a predominantly Hispanic store,” Harrington answered, “yes.” Apx-021 (Harrington 22-23).

Benitra Brown, who began working at the Kedzie store around 2012 as a parts sales manager and remains employed there (Apx-001, Brown 10-11), also testified that there were times when Hispanic customers wanted to be served by a Hispanic employee, even though Hispanic customers spoke English. Apx-006 (Brown 34). Because of that preference, there were occasions when store managers would have Hispanic employees go and assist Hispanic customers. Apx-006 (Brown 35). For example, Walida Wilkie, at one time a manager at the Kedzie store (Apx-012, Cleveland 38-9), would direct a Hispanic employee to serve Hispanic customers, even though the customers spoke English. Apx-006 (Brown 34-5, 37). Wilkie told Kemechia Wilkins, a black employee (Apx-002, Brown 20) who worked at the Kedzie location from 2009 to 2014 (Apx-050, Wilkins Decl. ¶¶ 1-2), that “she would rather have the Hispanics up front because we have a majority of Hispanics that shop at the store and they’re more – they’re more – they’re more [sic] to buy from them and buy more from them than they would me or her.” Apx-055 (Wilkins 69-70). Wilkie was also African-American. Apx-024 (Harrington 61-62).

Wilkie was not alone in directing employees this way; Wilkins stated it was a frequent practice of store managers at the Kedzie location to ask Hispanic employees to serve Hispanic customers. Apx-051 (Wilkins Decl. ¶ 18). Wilkins stated that “[a]ll of the store managers I worked for did this.” Id. “If a Hispanic employee and an African-American employee were both available, the store manager would usually choose a Hispanic employee to serve a Hispanic customer…This was not just about speaking Spanish, because some of the Hispanic employees did not speak Spanish.” Id. One of the Kedzie store managers was Hispanic but spoke no Spanish. Apx-005 (Brown 30-31). Harrington also testified that there were some Hispanic employees who did not speak Spanish. Apx-019-20 (Harrington 16-17).

Lashun Nash, a black employee who worked for AutoZone from late 2012 to mid-February of 2013 (Apx-036, Nash 19), observed that while he was working at Store 4416, “if you weren’t of Spanish descent or you weren’t Mexican in particular, that you wouldn’t communicate with a lot of customers. You were often sent into the back to restock or just go grab parts.” Apx-037 (Nash 22-23). “But when a customer came in, they would, oh, send a Mexican guy or a woman female [sic] up front to speak with them, and then they would send me to the back to go get whatever the part may have been or send me outside to swap out batteries or wiper blades or something like that.” Id. Not all of the Hispanic customers “who walked into the store, they weren’t all just Spanish-speaking individuals.” Apx-038 (Nash 29). Nash testified that “[p]robably twice a day,” he would be sent away from assisting Hispanic customers who appeared to be speaking in English. Apx-014 (Nash 50-51).

Even if a customer’s primary language was Spanish, Nash explained that this would not necessarily have prevented him from being able to assist the customer. Apx-039 (Nash 35-36). Because it is an auto parts store and customers typically walk up to a desk and ask for an automotive part, “some people were able to say a [sic] alternator or a belt or something like that, for the most part. You would understand, for the most part. Now if they want to go into a complete paragraph or conversation, then it would be, like, hey, I need assistance. But there were instances where I didn’t even get the chance to do that.” Id. Wilkins observed, “To speak Spanish. Like I said, it doesn’t necessarily have to be fluent. It just have [sic] to be – you just have to be able just to understand, you know, one or two words out of the whole thing to be able to know what they’re looking for.” Apx-053 (Wilkins 63). Stuckey, according to Wilkins, knew enough Spanish words for automotive parts. Id.

In July 2012, Harris made the decision to transfer Stuckey out of the Kedzie store to Store 2290. Apx-032-3 (Harris 46-9). Stuckey’s Spanish-speaking ability or inability was “not at all” a factor in the transfer decision. Apx-033 (Harris 52). Indeed, Harris did not require that staff working at the Kedzie store have any Spanish-speaking ability. Apx-034 (Harris 62). When asked whether Spanish language ability was a factor “one way or the other in any decision-making about that store,” Harris responded, “No.” Id. Harris testified that he, without consultation with any other AutoZone manager, selected Stuckey to transfer to Store 2290. Apx-032-3 (Harris 46-9).

When Stuckey asked Harris why he was being transferred, Harris replied “that what he was trying to do with Store 4416 was keep it predominantly Hispanic.” Apx-046 (Stuckey 75). Harris also told Stuckey that “he wanted to transfer me out because something with the sales, sales are down, he was basically trying to get the sales back up where they’re supposed to be at.” Apx-046 (Stuckey 75-76). Harris denies telling Stuckey he wanted to keep the Kedzie store predominantly Hispanic (Apx-033A, Harris 57) and instead testified that he selected Stuckey because Harrington and Stuckey “couldn’t see eye to eye” and because Store 2290 “was closer to [Stuckey’s] home, so I felt he would be the best one for that store.” Apx-032 (Harris 46-47).

Stuckey did not request the July 2012 transfer to Store 2290 (Apx-032, Harris 46; Apx-045, Stuckey 73), did not want to transfer to Store 2290, and expressed this to Brown (Apx-003, Brown 25), and Tina Cleveland, AutoZone’s Regional Human Resources Manager for the Chicago Region (Apx-007 ¶ 3). Apx-016 (Cleveland 91) (testifying that Stuckey told her he did not want to transfer). Cleveland told Stuckey that AutoZone was transferring him because it “was just a good decision on both parts.” Apx-015 (Cleveland 87-88). The business need for the transfer, according to Cleveland, was based on the fact that Store 4416 was “heavy” with part sales managers, and Store 2290 needed a parts sales manager, but also to “get Mr. Stuckey closer to home.” Apx-015-6 (Cleveland 88-89). Stuckey, however, testified that Store 2290 was inconvenient for him. Apx-049 (Stuckey 123). See also Apx-003 (Brown 25).

AutoZone’s July 2012 transfer of Stuckey to Store 2290 “was in the same exact position in [sic] held at the time, Part Sales Manager” and “involved no loss of pay or benefits or any change in the job duties he performed at Store 4416.” Apx-007 ¶ 4. The Kedzie store, however, is considered a high volume store that earned approximately $30,000 to $40,000 a week. Apx-026 (Harrington 73). The Kedzie store was also a commercial store, meaning that it had commercial customers who typically had auto parts delivered to them rather than coming to the store to get them. Apx-010-1 (Cleveland 32-33). The designation of a commercial store was based on identifying whether the area could generate potential profit from commercial accounts. Apx-010 (Cleveland 32). Unlike Store 4416, Store 2290 was not a commercial store. Apx-011 (Cleveland 33). Although the commercial operation in a commercial store is in a separate department from the rest of that store’s operations, the sales volume for the entire store would be higher for a commercial store than a store without a commercial operation. Id.

In addition, Store 2290 was staffed almost exclusively by black employees: out of approximately 25 employees, 23 were black or African-American, during the time period around May 2011 to July 2012. Apx-057-8 ¶¶ 5-6;[3] Apx-061-2. The store that AutoZone transferred Stuckey to was located near 103rd Street and South Michigan Avenue in Chicago. Apx-047 (Stuckey 95).

After his transfer, Stuckey did not report to the new store location. Apx-047 (Stuckey 97). Part of the reason for his refusal to work at the new store was the race-based nature of the transfer. Apx-049 (Stuckey 123) (when asked why he did not show up to the new store, Stuckey testified “[r]eason being inconvenient and then also the comment Mr. Harris made…Basically the transfer making it want [sic] to be a predominantly Hispanic store.”). His employment with AutoZone ended in July 2012. Apx-048 (Stuckey 102).

Gustavo Ocampo, a Hispanic employee (Apx-051 ¶10), had been working at Store 4416 in a training position. Apx-002 (Brown 21). Although AutoZone’s personnel records reflect that Ocampo became a parts sales manager on February 26, 2012 (Apx-064 ¶ 6), when asked who replaced Stuckey as parts sales manager, Harrington testified that he promoted Ocampo. Apx-022 (Harrington 32). Brown also testified that it was after Stuckey transferred out of the Kedzie store that Ocampo became a regular parts sales manager. Apx-003 (Brown 22); see also Apx-051 ¶¶ 9-10 (“Shortly after Mr. Stuckey was transferred out of Store No. 4416, Gustavo Ocampo was promoted to be a Parts Sales Manager. Gustavo Ocampo is Hispanic.”). Nash testified that he had several conversations with Ocampo, during which Ocampo said that “Mexican customers were more comfortable with Mexican employees” and on that basis, certain employees would be transferred out. Apx-040 (Nash 42-44).

Harrington had requested a transfer out of the Kedzie store, which occurred in September, a few months after Stuckey’s transfer in July. Apx-027 (Harrington 79-80). Part of Harrington’s reason for requesting a transfer out of the Kedzie store was the customer preference there for only being served by a Hispanic associate. Apx-020 (Harrington 17-18) (“It would be customers who would literally – if we were attempting to help them in English, they would talk to the associate, presuming that the associate spoke Spanish, and then the associate would let them know he didn’t speak Spanish, and they would have an English conversation with a Hispanic associate and still would not allow us [black employees] to help.” When asked whether that was part of the reason Harrington wanted to transfer out of the store, he testified, “Absolutely.”) AutoZone transferred Harrington from the Kedzie store to a store that had a racial composition of “100 percent African-American” (Apx-021, Harrington 24) and was an “inner city store.” Apx-013 (Cleveland 80-81). The store was located on the south side of Chicago, “87th and the Dan Ryan.” Apx-013 (Cleveland 80). Harris also told Harrington that he would have a conversation with the AutoZone’s regional vice president “about whoever they place after me to make sure it is a Hispanic store manager.” Apx-021 (Harrington 23-24). Brahulio Herrera, who is Hispanic, replaced Harrington as store manager for Store 4416 “[r]ight after” his transfer. Apx-051 (Wilkins Decl. ¶¶ 11-13); Apx-014 (Cleveland 84) (confirming that Herrera replaced Harrington as store manager of 4416).

Wilkins left the Kedzie store in September 2014. Apx-051 (Wilkins Decl. ¶ 16. At the time Wilkins left, Brown was the only remaining black employee at the Kedzie store. Id. Harris had also asked Brown to transfer out of the Kedzie store (Apx-003-4, Brown 25-26) to a store location on the south side of Chicago, at 87th and Cottage Grove. Apx-004 (Brown 28). Harris told her, in a conversation in Store 4416, that she “could have more opportunity at another store because most of the customers are Hispanic [at the Kedzie store], and they bi—they speak Spanish, and bilingual people need to be helped.” Apx-004 (Brown 26). Brown contacted Cleveland and told her she did not want to transfer, and Cleveland responded that “[s]he was going to take care of it.” Apx-004 (Brown 27-28). Brown remains employed at the Kedzie location. Apx-001 (Brown 10).

III. District Court Decision

The district court held that the Commission’s Title VII claim based on Stuckey’s transfer failed because the Commission “failed to present sufficient evidence creating a triable issue of fact that Stuckey suffered any material adversity in relation to his July 2012 transfer.” AD-010.

Rejecting the Commission’s argument that 42 U.S.C. § 2000e-2(a)(2) does not require the showing of a materially adverse action to constitute a Title VII violation, the district court cited two Seventh Circuit decisions, and two out-of-Circuit decisions, for the proposition that claims involving § 2000e-2(a)(2) require that the plaintiff suffered “an adverse employment action.” AD-005-6 (citing Henry v. Milwaukee Cty., 539 F.3d 573, 585-86 (7th Cir. 2008); Nanda v. Bd. of Trs. of Univ. of Ill., 303 F.3d 817, 829-30 (7th Cir. 2002); James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004); and Forkkio v. Powell, 306 F.3d 1127, 1130 (D.C. Cir. 2002)).

The district court then analyzed “whether Plaintiff has presented evidence raising a genuine issue of material fact for trial that Stuckey did suffer an adverse employment action” and concluded that Stuckey’s transfer did not amount to an adverse employment action, emphasizing that it did not result in a “reduction in pay, a change in benefits, or any change in job duties.” AD-008-10. The court also concluded that, although “a materially adverse action may include the situation where a plaintiff’s work conditions subject him to an objectively humiliating or degrading workplace,” there was “no evidence in the record that Stuckey’s July 2012 transfer from the Kedzie store to store 2290 located on 103rd Street in Chicago resulted in an objectively humiliating or degrading change in work conditions.” AD-010. Discussing evidence that Stuckey objected to the transfer because of a longer commute to the new store location, the district court concluded that this type of “disruption, without more, does not amount to an adverse employment action under Title VII.” Id.

Disposing of the Commission’s claim on the basis that no “adverse employment action” had occurred, the district court did not address evidence relating to other aspects of the Kedzie store or the transfer in its analysis, such as Stuckey’s testimony that Harris told him the reason he was transferring him was to make the Kedzie store “predominantly Hispanic.” AD-008-10.

SUMMARY OF ARGUMENT

This Court should reverse the district court’s holding that to establish a violation of 42 U.S.C. § 2000e-2(a)(2), the Commission was required to show that AutoZone’s involuntary transfer of Stuckey had a “materially adverse” effect on him, apart from evidence that the transfer was an act of intentional racial segregation. The plain text of 42 U.S.C. § 2000e-2(a)(2) renders the act of racially limiting, classifying, or segregating employees the statutory violation, and the record evidence would permit a reasonable jury to conclude that AutoZone transferred Stuckey to racially segregate him from Hispanic staff. This Court should reverse the district court’s grant of summary judgment and remand for trial.

ARGUMENT

AutoZone violated 42 U.S.C. § 2000e-2(a)(2) when it transferred Stuckey because of his race, for the purpose of racially segregating black from Hispanic employees. The transfer, which Stuckey repeatedly objected to once he learned he was being moved out of the Kedzie location, deprived him of the employment opportunity of working at that location. Applying the plain language of the statute, no further evidence is required to establish a violation under 42 U.S.C. § 2000e-2(a)(2).

I. An employer’s transfer of an employee, to racially segregate its workforce, is a violation of 4 2 U.S.C. § 2000e-2(a)(2).

42 U.S.C. § 2000e-2(a)(2) enumerates three prohibited practices—the

limiting, segregating, or classifying of employees based on a protected category—and proscribes the harm of tending to “deprive any individual of employment opportunities.” 42 U.S.C. § 2000e-2(a)(2). The statutory text makes clear that the segregation of employees based on race is a Title VII violation. See Loyd v. Phillips Bros., Inc., 25 F.3d 518, 525 (7th Cir. 1994) (noting that maintaining a segregated workforce is a “Title VII violation in its own right”).

42 U.S.C. § 2000e-2(a) of Title VII states:

It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

By its own terms, 42 U.S.C. § 2000e-2(a)(2) neither limits the proscribed harm to the individual directly subjected to the discriminatory practice nor to a specific aspect of employment, such as compensation. Id. The subsection contains broad language, and this Court has construed it accordingly.

Discussing § 2000e-2(a)(2) in comparison to § 2000e-2(a)(1), this Court in Kyles v. J.K. Guardian Security Services, Inc., 222 F.3d 289 (7th Cir. 2000), observed that by making it unlawful for an employer to segregate employees or applicants because of race through § 2000e-2(a)(2), Congress “created a broad substantive right that extends far beyond the simple refusal or failure to hire.” Id. at 298. In Kyles, this Court addressed § 2000e-2(a)(2) in the context of a Title VII action brought by two plaintiffs who had applied for jobs as employment testers (for the purpose of detecting unlawful discrimination) and alleged they were discriminatorily denied positions on the basis of race. Id. at 292-93, 298-99. As the plaintiffs were employment testers, and not bona fide job applicants, the district court had held that the plaintiffs lacked standing to bring the Title VII claim on the basis that the plaintiffs had not suffered an injury. Id. at 293. Drawing upon the statutory text “would deprive or tend to deprive” in § 2000e-2(a)(2), this Court reversed the district court and held that the employment testers suffered an injury for the purpose of Article III standing. Id. at 298-300.

In so holding, this Court interpreted the statutory text as prohibiting racial segregation or classification “in a way that would tend to deprive not only [the job applicant], but any other individual who happens to be a person of color, of employment opportunities.” Id. at 298, 300. This Court explained that the racial segregation or categorization of any job applicant (even one with no intent of accepting a job) still results in “the wrong that Title VII proscribes” with respect to other applicants within the same protected group. Id. at 298, n. 5. “If the improper segregation or categorization does not deprive the applicants themselves of ‘employment opportunities’ (and arguably it does), see § 2000e–2(a)(2), it surely ‘tends to deprive’ other individuals (including those who genuinely want the job) of such opportunities.” Id. See also EEOC v. Int’l Longshoremen’s Ass’n, 511 F.2d 273, 278 (5th Cir. 1975) (stating that racially segregated locals tended to deprive black individuals of employment opportunities, because blacks would be dissuaded from becoming longshoremen due to the segregated nature of the profession).

Two Circuit decisions—Knight v. Nassau County Civil Service Commission, 649 F.2d 157 (2d Cir. 1981), and Ferrill v. Parker Group, Inc., 168 F.3d 468 (11th Cir. 1999)—support holding that AutoZone violated Title VII when it transferred Stuckey in an effort to create a segregated workforce, without requiring additional evidence of material adversity. Addressing factual circumstances analogous to those here, both Circuits premised an employer’s liability on evidence that its employment decision operated on impermissible racial stereotypes and preferences.

In Knight, the Second Circuit held that a race-based job transfer, with no effect on salary or benefits, constituted a violation of Title VII.[4] The black plaintiff alleged that his transfer to a new position was based on race and violated Title VII, though the position to which he was transferred did not result in a change in salary or benefits. Knight, 649 F.2d at 162. The plaintiff was involuntarily transferred to the Recruitment Division “with the expectation that he would participate in a program to encourage more members of minority groups to apply for Civil Service jobs.” Id. at 159-60.

The transfer was a Title VII violation, the Second Circuit reasoned, because it was “based on a racial stereotype that blacks work better with blacks and on the premise that Knight’s race was directly related to his ability to do the job,” and therefore unlawful. Id. at 162 (on the same basis, also holding that the transfer was a violation of 42 U.S.C. § 1983). The Court explained, “No matter how laudable the Commission’s intention might be in trying to attract more minority applicants to the Civil Service the fact remains that Knight was assigned a particular job (against his wishes) because his race was believed to specially qualify him for the work. This is a violation of Title VII.” Id.

The Eleventh Circuit in Ferrill similarly held that segregating employees based on race was legally impermissible under § 1981. 168 F.3d at 472-74, 477. At issue in Ferrill was an employer’s practice of segregating employees to make “get-out-the-vote” calls to potential voters for various political candidates. Id. at 472, 477. The black plaintiff had been hired as a temporary employee to make race-matched calls. Id. at 471. The practice of race-matched calling involved black employees calling black voters using a “black” script, and white employees calling white voters using a “white” script, as well as the physical segregation of black callers in one room and white callers in another. Id. The Eleventh Circuit affirmed the district court’s holding that the practice violated § 1981 based on the evidence of segregated race-matched calling. Id. at 472-73 (noting that the “test for intentional discrimination in suits under § 1981 is the same as the formulation used in Title VII discriminatory treatment cases”). The Court also held that the evidence that the assignments were made on the basis of race was sufficient to establish the violation, without any showing of racial animus. Id. at 473.

Circuit decisions construing the parallel provision in Title VII prohibiting racial segregation with respect to labor organizations—42 U.S.C. § 2000e-2(c)(2)—provide further support for this Court to hold that the segregation of employees based on a protected characteristic constitutes the violation under § 2000e-2(a)(2).

42 U.S.C. § 2000e-2(c)(2) is identical to (a)(2), except that it applies to labor organizations. That section states:

It shall be an unlawful employment practice for a labor organization-

(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin.

Analyzing a claim of sex-segregated locals under § 2000e-2(c)(2), the

D.C. Circuit in Evans v. Sheraton Park Hotel, 503 F.2d 177 (D.C. Cir. 1974), emphasized the existence of sex-segregated locals as the basis for the violation itself, and stated, “[w]e think the District Court correctly held that maintenance of unions segregated on the basis of sex constitutes a per se violation of 42 U.S.C. § 2000e-2(c).” Id. at 186. See also Int’l Longshoremen’s Ass’n, 511 F.2d at 275, 280 (where defendants argued that there was no legal violation because no economic deprivation resulted from the segregated locals, stating that the concept of ‘separate but equal’ “has failed the constitutional test of time for a good reason. The involuntary separation of people engenders a psychological harm which puts the lie to contentions of equality.”); U.S. v. Int’l Longshoremen’s Ass’n, 460 F.2d 497, 499-500 (4th Cir. 1972) (“We agree with the district judge that the maintenance of racially segregated locals inevitably breeds discrimination that violates the Act.”).

Here, the record evidence would allow a reasonable juror to conclude that AutoZone violated 42 U.S.C. § 2000e-2(a)(2) when it transferred Stuckey, a black employee, from a store staffed predominantly by Hispanic employees to a store staffed predominantly by black employees. Stuckey was involuntarily transferred out of the Kedzie store and testified that Harris told him the reason he was being transferred out was because he wanted to make that location “predominantly Hispanic.” This is evidence upon which a reasonable juror could conclude that Stuckey’s transfer was both race-based, and also undertaken to limit or eliminate the number of non-Hispanic employees at the Kedzie store. Several witnesses stated that following AutoZone’s transfer of Stuckey, a Hispanic employee replaced him as parts sales manager. Apx-022 (Harrington 32); Apx-003 (Brown 22); Apx-051 ¶¶ 9-10.

Thereafter, AutoZone transferred another black employee, Harrington, and assigned him to a store whose staff was “100 percent” black. Although Harrington had requested to be transferred, he testified he made that request in part because of the customer preference for Hispanic, not black, employees at the Kedzie store. Harrington also testified that Harris told him he intended to advise AutoZone’s regional vice president to replace Harrington with a Hispanic store manager, Apx-021 (Harrington 23-24), and the record reflects that AutoZone indeed replaced Harrington with Hispanic employee Brahulio Herrera. Apx-051 ¶¶ 12-13; Apx-014 (Cleveland 84). At some point before Stuckey’s transfer, Harris also suggested that Brown, a black manager at the Kedzie store, transfer out of the Kedzie location to a store on Chicago’s south side. Apx-004 (Brown 26-29). By September 2014, Brown was the only black employee remaining at the Kedzie store. Apx-051 ¶ 16.

The evidence also reflects that it was a common practice for Kedzie store managers to direct Hispanic employees to assist Hispanic customers, at times regardless of the ability to speak Spanish, and that there was a customer preference by Hispanic customers for Hispanic associates, also apart from language ability. Nash, a former black employee, testified that about twice a day, he would be sent away from assisting Hispanic customers who appeared to be speaking English. Apx-041 (Nash 50-51). See Chaney v. Plainfield Healthcare Ctr., 612 F.3d 902, 910, 913 (7th Cir. 2010) (holding that nursing home violated Title VII by complying with the racial preference of a patient who did not want to be treated by a black nursing assistant; stating, “It is now widely accepted that a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based on race.”).

As this evidence would allow the reasonable inference that Stuckey’s race-based job transfer was part of AutoZone’s design to segregate black from Hispanic employees, this Court should reverse the district court’s grant of summary judgment. See Kyles, 222 F.3d at 303 (“Title VII thus creates a substantive and enforceable right to be free from any attempt ‘to limit, segregate, or classify’ applicants for employment on the basis of race in a way that might tend to deprive the applicant, or any individual, of employment opportunities. § 2000e–2(a)(2).”).

Further, the evidence here shows that at least two types of harm proscribed by § 2000e-2(a)(2) occurred in this case: Stuckey’s actual deprivation of the employment opportunity to work at the Kedzie store, and the harm of tending to deprive other black employees of such opportunities at the Kedzie store. See Kyles, 222 F.3d at 303 (“Title VII takes aim at a wide range of racially discriminatory practices which, among other things, either ‘deprive or tend to deprive any individual of employment opportunities....’ 42 U.S.C. § 2000e–2(a)(2)”).

First, Stuckey’s involuntary transfer out of the store, in fact, deprived him of the employment opportunity to work as a parts sales manager at the Kedzie location. Second, the evidence of Stuckey’s transfer would allow a reasonable juror to conclude that AutoZone’s race-based segregation “tend[ed] to deprive” other black employees of employment opportunities at the Kedzie location as well—another type of harm proscribed by § 2000e-2(a)(2). AutoZone’s transfer not only of Stuckey, but also of Harrington, and its attempt to transfer Brown—the only black manager remaining at the Kedzie location—would permit the reasonable inference that other black employees would also find few or no employment opportunities at the Kedzie store. Evidence that the racial composition of that store remained nearly entirely Hispanic after Stuckey’s transfer provides further support for that conclusion.

Just as proof of segregated unions suffices to establish a violation of 42 U.S.C. § 2000e-2(c)(2), proof that an employer assigns and transfers employees on the basis of race, in an effort to create and maintain a segregated workforce, itself constitutes a violation of 42 U.S.C. § 2000e-2(a)(2). See generally Int’l Longshoremen’s Ass’n, 511 F.2d at 278 (analogizing the segregation of locals to segregation in schools, stating that the “racial stigma which prevents segregated schools from offering equal educational opportunities is not felt exclusively by children, nor is it felt exclusively in the educational context. The Supreme Court subsequently summarily decided a series of cases in which it held that racially separate facilities were inherently unconstitutional; the Court came to those decisions without regard to any evidence of material equality.”).

II. The district court erred by requiring additional evidence of material adversity to establish a violation of 4 2 U.S.C. § 2000e-2(a)(2), apart from evidence that AutoZone’s transfer was an act of intentional race-based segregation.

An employer who transfers an employee because of his race, in an effort to create a racially homogenous workforce, by that act violates 42 U.S.C. § 2000e-2(a)(2). In concluding otherwise, the district court relied on inapposite authority (see AD-003-010), and focused improperly on whether the transfer resulted in a tangible economic disadvantage, such as reduction in pay, benefits, or duties (AD-008), or a significant change in working conditions. AD-009.

The district court, for example, cited Henry v. Milwaukee County, 539 F.3d 573 (7th Cir. 2008), in support of the proposition that this Court “requires a plaintiff to establish that he suffered an adverse employment action” in cases involving § 2000e-2(a)(2). AD-005. In Henry, this Court held that the County had violated 42 U.S.C. § 2000e-2(a)(2) because its policy of requiring at least one correctional officer on duty to be the same sex as the juvenile detainees had the effect of significantly reducing the opportunity for female correctional officers to earn “premium pay” and overtime on the night shift. Henry, 539 F.3d at 577, 585-86. The policy had that effect because unlike day shifts which were staffed by two officers per pod of juveniles, the night shift was staffed by one officer per pod; as most of the juveniles were male, most of the available night shifts were consequently reserved for male officers. Id. at. 577. The plaintiffs specifically argued that the denial of overtime assignments was the Title VII violation (id. at 578), and in that context, this Court held that the County had failed to show that its sex-based classification was a bona fide occupational qualification, and that the third shift policy violated Title VII because it “adversely affected the plaintiffs’ employment opportunities.” Id. at 585-86. This Court stated that “the dramatic reduction in the opportunity for women to work on the third shift constituted an adverse employment action.” Id. at 586.

That economic or material harm often accompanies acts of segregation or classification is unsurprising. This common factual correlation, however, does not compel the legal conclusion that such harm must be shown to establish a violation under 42 U.S.C. § 2000e-2(a)(2). Henry did not present or decide the issue of whether a race-based transfer undertaken to create a segregated workforce requires any additional showing of adversity to establish a Title VII violation and is thus inapposite.

Other Circuit cases cited by the district court for the proposition that “an adverse action” is required to show a violation under 42 U.S.C. § 2000e-2(a)(2) are similarly inapposite. See AD-005-6; Nanda v. Board of Trustees of the Univ. of Illinois, 303 F.3d 817, 819, 829 (7th Cir. 2002) (analyzing a Title VII claim asserting discriminatory harassment and termination, absent any facts relating to classification or segregation, in which this Court affirmed the district court’s rulings on a motion to dismiss and enumerated “an adverse employment action” as an element of the prima facie case); Sweeney v. West, 149 F.3d 550, 556-57 (7th Cir. 1998) (in a Title VII retaliation analysis, discussing whether plaintiff was subjected to a materially adverse action and noting that 42 U.S.C. § 2000e-2(a) excludes instances of different treatment with little effect on the employee’s job); James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375-6 (4th Cir. 2004) (in a Title VII analysis of a claim involving no facts relating to classification or segregation, defining an adverse employment action an as act that adversely affects “‘the terms, conditions, or benefits’ of the plaintiff’s employment,” language contained in 42 U.S.C. § 2000e-2(a)(1)); Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002) (in a Title VII analysis involving no facts relating to classification or segregation, quoting 42 U.S.C. § 2000e-2(a) and then listing “an adverse employment action” as an element of a prima facie case).

As a general matter, it is true that an “adverse employment action” is often listed as an element needed to establish a prima facie case under Title VII. See Minor v. Centocor, Inc., 457 F.3d 632, 634 (7th Cir. 2006) (noting that “hundreds if not thousands of decisions say that an ‘adverse employment action’ is essential to the plaintiff’s prima facie case”). As this Court has observed, however, that phrase “does not appear in any employment-discrimination statute or McDonnell Douglas, and the Supreme Court has never adopted it as a legal requirement.” Minor, 457 F.3d at 634. Rather, the purpose of the “‘adverse employment action requirement is to provide a reasonable limiting principle for the type of conduct actionable under the statute.’” Lewis v. City of Chicago, 496 F.3d 645, 653 (7th Cir. 2007), aff’g verdict for defendant on other grounds, 590 F.3d 427 (7th Cir. 2009). That phrase, this Court instructs, “must not be confused with the statute itself or allowed to displace the Supreme Court’s approach, which inquires whether the difference is material.” Minor, 457 F.3d at 634.

The “adverse employment action” in this case, for the purpose of establishing a violation under § 2000e-2(a)(2), is AutoZone’s transfer of Stuckey for the purpose of creating or maintaining a racially segregated workforce. The text of § 2000e-2(a)(2) identifies racial segregation as the basis for a Title VII violation, and it would grossly distort the meaning and purpose of the statute to treat intentional, race-based segregation as a “day-to-day travail[] or disappointment[]” of the kind that the term “adverse employment action” was meant to winnow from the statute’s protection. See Minor, 457 F. 3d at 634 (explaining that the phrase ‘adverse employment action’ helps to express the idea “that it is essential to distinguish between material differences and the many day-to-day travails and disappointments that . . . are not so central to the employment relation that they amount to discriminatory terms or conditions.”).

That race-based segregation is legally impermissible in the workplace is hardly a novel concept, and the district court’s failure to understand an act of racial segregation as untenable, let alone one that is prohibited under Title VII, was error. See, e.g., Firefighters Institute for Racial Equality v. City of St. Louis, 549 F.2d 506, 514-15 (8th Cir. 1977) (in a Title VII action, where the fire department’s “informal eating arrangements” by way of supper clubs excluded black firefighters, underscoring the “highly offensive” exclusion of black workers and ordering on remand the promulgation of new regulations providing that “use of city facilities by supper clubs may not continue in a discriminatory and segregated manner”). Cf. Baker v. City of St. Petersburg, 400 F.2d 294, 296, 300-01 (5th Cir. 1968) (where the city police department assigned black officers to patrol black neighborhoods on the belief that black officers “are better able to cope with the inhabitants of that zone,” applying strict scrutiny to the racial classification to hold that the “practice of assigning Negroes solely on the basis of race to a Negro enclave offends the equal protection clause of the fourteenth amendment”).

Nor does the district court’s reliance on Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), provide support for construing 42 U.S.C. § 2000e-2(a)(2) to require a showing of economic or material harm. AD-008. The Burlington Northern decision is silent on this question, as neither the legal issue nor the import of 42 U.S.C. § 2000e-2(a)(2) was before the Court. As Burlington Northern did not address the issue before this Court concerning 42 U.S.C. § 2000e-2(a)(2), it provides no support for the district court’s decision.

The Supreme Court’s analysis in Burlington Northern, however, is instructive for interpreting the statutory text of 42 U.S.C. § 2000e-2(a)(2). In Burlington Northern, the Court discussed the “linguistic differences” between the antidiscrimination and antiretaliation provisions, as the antidiscrimination provision limits actionable conduct to “actions that affect employment or alter the conditions of the workplace” while the antiretaliation provision contains no such limiting language. 548 U.S. at 62-63. Applying the normal presumption of statutory interpretation and in light of the purposes of the two provisions, the Supreme Court concluded that by electing to use different language, Congress intended the different terms to make a legal difference. Id. at 63 (also noting that the objective of the antidiscrimination provision is to achieve the “‘equality of employment opportunities’ and the elimination of practices that tend to bring about ‘stratified job environments’”).

The two subsections of Title VII’s antidiscrimination provision also exhibit differences in text. While § 2000e-2(a)(1) prohibits discrimination with respect to “compensation, terms, conditions, or privileges of employment,” § 2000e-2(a)(2) prohibits limiting, classifying, or segregating employees because of race “in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.” Inclusion of the phrase “compensation, terms, conditions, or privileges of employment” in § 2000e-2(a)(1), and its omission of the same in § 2000e-2(a)(2), is particularly notable. Russello v. U.S., 464 U.S. 16, 23 (1983) (“‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’”). In the absence of text referring to “compensation, terms, conditions, or privileges of employment” in 42 U.S.C. § 2000e-2(a)(2), § 2000e-2(a)(2) cannot be said to require an adverse action in the form of diminished compensation or other significant workplace harm to establish a violation.[5] Requiring such a showing in a case of race-based segregation in the workplace was error. See AD-008-9.

CONCLUSION

The district court’s analytical errors in this case are several-fold: a failure

to apply 42 U.S.C. § 2000e-2(a)(2) according to its plain language, a misunderstanding of this Court’s discussion of an “adverse employment action” to require economic or additional harm apart from the segregation itself, and its failure to understand that racial segregation is an untenable and prohibited practice under Title VII. As a violation under 42 U.S.C. § 2000e-2(a)(2) is established by evidence of race-based segregation, and the record evidence in this case would permit a reasonable factfinder to conclude that AutoZone transferred Stuckey to segregate black employees and Hispanic employees by store, this Court should reverse the district court’s grant of summary judgment to AutoZone and remand the Commission’s Title VII claim for trial.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

S/Christine J. Back___________________

CHRISTINE J. BACK

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

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Office of General Counsel

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christine.back@eeoc.gov

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitation, and typeface and type style requirements set forth in Fed. R. App. P. 28.1(e)(2) and Fed. R. App. P. 32(a)(5) and (a)(6). I certify that this brief was prepared with Microsoft Office Word 2010 and uses Times New Roman type, size 14 point. I further certify that the entirety of this brief contains 8,252 words, as determined by the Microsoft Word 2010 word count function.

S/Christine J. Back___________________

CHRISTINE J. BACK

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

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Office of General Counsel

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christine.back@eeoc.gov

CERTIFICATE OF SERVICE

I, Christine J. Back, hereby certify that I filed the foregoing brief electronically in PDF format with the Court via the ECF system on this 22nd day of January, 2016. I further certify that I served the foregoing brief electronically in PDF format through the ECF system this 22nd day of January, 2016, to all counsel of record.

S/Christine J. Back____________________

CHRISTINE J. BACK

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, NE, Room 5NW14G

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(202) 663-4734

christine.back@eeoc.gov

STATEMENT CONCERNING APPENDIX

Pursuant to Seventh Circuit Rule 30(d), I certify that all the materials required by Circuit Rules 30(a) and (b) are included. The materials required by Rule 30(a) are bound with this brief in the section labeled “Addenda.” Additional excerpts from the record are bound in a separate Appendix, with a table of contents indexing the material.

S/Christine J. Back____________________

CHRISTINE J. BACK

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, NE, Room 5NW14G

Washington, DC 20507

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christine.back@eeoc.gov

ADDENDA

District Court Order AD-001

District Court Judgment AD-012

[1] “AD-#” refers to the addenda and page number.

[2] “DE-#” refers to the district court docket entry number.

[3] Admitting that document numbered AZ003-4 is an accurate list of employees who worked at Store 2290, and “contains information” that 23 were black or African-American, and two were Hispanic, out of 25 total employees.

[4] The court of appeals did not specify a statutory subsection for its analysis. Instead, when describing the procedural history of the case, the court noted that the plaintiff alleged violations of “Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17.” Knight, 649 F.2d at 159.

[5] Indeed, when discussing a substantial or materially adverse employment action in Title VII cases, this Court has often done so in the context of claims arising under § 2000e-2(a)(1), in relation to the statutory language found in § 2000e-2(a)(1), “compensation, terms, conditions and privileges of employment.” See Lewis, 496 F.3d at 654 (explaining that material changes alone qualify as adverse employment actions, as Title VII “prohibits discrimination as to compensation, terms, conditions, and privileges of employment”); Traylor v. Brown, 295 F.3d 783, 788-89 (7th Cir. 2002) (“Title VII prohibits employers from discriminating against employees with respect to the ‘terms, conditions or privileges of employment,’ 42 U.S.C. § 2000e–2(a)(1); ‘that is, [the employee] must show that she suffered a materially adverse employment action.’”).

STATEMENT CONCERNING ORAL ARGUMENT

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF JURISDICTION

STATEMENT OF THE ISSUES

STATEMENT OF THE CASE

I. Nature of the Case and Course of Proceedings

II. Statement of Facts

III. District Court Decision

SUMMARY OF ARGUMENT

ARGUMENT

I. An employer’s transfer of an employee, to racially segregate its workforce, is a violation of 4 2 U.S.C. § 2000e-2(a)(2).

II. The district court erred by requiring additional evidence of material adversity to establish a violation of 4 2 U.S.C. § 2000e-2(a)(2), apart from evidence that AutoZone’s transfer was an act of intentional race-based segregation.

CONCLUSION

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

STATEMENT CONCERNING APPENDIX

ADDENDA

I. An employer’s transfer of an employee, to racially segregate its workforce, is a violation of 42 U.S.C. § 2000e-2(a)(2).

II. The district court erred by requiring additional evidence of material adversity to establish a violation of 42 U.S.C. § 2000e-2(a)(2), apart from evidence that AutoZone’s transfer was an act of intentional race-based segregation.

I. An employer’s transfer of an employee, to racially segregate its workforce, is a violation of 4 2 U.S.C. § 2000e-2(a)(2).

II. The district court erred by requiring additional evidence of material adversity to establish a violation of 4 2 U.S.C. § 2000e-2(a)(2), apart from evidence that AutoZone’s transfer was an act of intentional race-based segregation.