INTRODUCTION

In its opening brief, the Commission argued that AutoZone’s involuntary transfer of black employee Kevin Stuckey—undertaken for the purpose of segregating him from Hispanic employees and customers—was a violation of 42 U.S.C. § 2000e-2(a)(2), the subsection of Title VII that prohibits an employer from segregating employees based on race. Because the transfer was undertaken to racially segregate employees, the Commission argued that no additional showing of a “materially adverse” action was required to establish a violation, as the district court had erroneously held. The Commission also argued that AutoZone’s race-based transfer of Stuckey caused the harm proscribed by 42 U.S.C. § 2000e-2(a)(2)—it deprived Stuckey of the employment opportunity of working at the Kedzie retail location, and also tended to deprive other black employees from employment opportunities at that location.

In response, AutoZone asserts that, as a factual matter, there is no evidence of race-based assignments or segregation, and emphasizes its earlier transfers of Stuckey in and out of the Kedzie store as indicative that its transfer of Stuckey in July 2012 was race-neutral. AutoZone argues that the Commission is required to show that Stuckey suffered a “materially adverse” action, despite conceding that the plain text of § 2000e-2(a)(2) may be satisfied with evidence of “an actual or potential deprivation” of an employment opportunity. Cf. Resp. Br. 12 with pp. 18-19.

As discussed in further detail below, the record evidence in this case would allow a reasonable jury to conclude that AutoZone involuntarily transferred Stuckey in July 2012 to segregate him from Hispanic employees. Indeed, the evidence shows that AutoZone’s district manager Robert Harris told both Stuckey and Kedzie store manager Vernon Harrington that he wanted to make the Kedzie store “predominantly Hispanic.” AutoZone’s previous transfers of Stuckey in and out of the Kedzie store are immaterial, as the Commission contends that the July 2012 transfer violated Title VII because—at that time—Harris told Stuckey he was transferring him to make the Kedzie store predominantly Hispanic. As the Commission argued in its opening brief, the plain language of 42 U.S.C. § 2000e-2(a)(2) does not require a showing of “material” adversity to establish a violation. Rather, the adverse employment action for the purpose of establishing a violation pursuant to 42 U.S.C. § 2000e-2(a)(2) is the act of racial segregation itself.

ARGUMENT

I. The evidence would allow a reasonable jury to conclude that AutoZone violated 4 2 U.S.C. § 2000e-2(a)(2) when it transferred Kevin Stuckey out of the Kedzie store in July 2012 for the purpose of racially segregating him from Hispanic staff and customers.

The plain language of 42 U.S.C. § 2000e-2(a)(2) prohibits an employer from limiting, classifying, or segregating employees based on race. 42 U.S.C. § 2000e-2(a)(2). As the Commission argued in its opening brief, because a reasonable jury could conclude from the record evidence that Stuckey’s transfer was undertaken for the purpose of racially segregating black from Hispanic employees, and resulted in the harm proscribed under § 2000e-2(a)(2), this Court should reverse the district court’s grant of summary judgment and remand for trial. EEOC Opening Br. 25-29.

Robert Harris testified that he alone made the decision to transfer Stuckey out of the Kedzie location in July 2012. Apx-32-33 (Harris 48-49) (reflecting that Harris alone selected Stuckey for the transfer, and did not consult with any other store managers about the decision). Harris also testified that AutoZone, not Stuckey, initiated the July 2012 transfer. Apx-32 (Harris 46) (When asked “so this transfer was initiated by AutoZone as opposed to Stuckey; correct?,” Harris testified, “Correct.”). Referring to the July 2012 transfer, AutoZone Human Resources manager Tina Cleveland “only became involved in the transfer once I found out that Mr. Stuckey did not want the transfer.” Apx-015 (Cleveland 87).

When Stuckey learned that AutoZone was transferring him in July 2012, he called Harris and asked him why he was being transferred out of the Kedzie store. Apx-046 (Stuckey 74-75). Harris told him “that what he was trying to do with Store 4416 was keep it predominantly Hispanic” and “something with the sales, sales are down, he was basically trying to get sales back up.” Apx-046 (Stuckey 75-76). Harrington corroborated Harris’s intent to make the store predominantly Hispanic, testifying that he too heard Harris make a comment “to the effect that [Harris] thought 4416 should be a predominantly Hispanic store.” Apx-021 (Harrington 22-23).[1] As 42 U.S.C. § 2000e-2(a)(2) prohibits an employer from limiting, classifying, or segregating employees based on race, a reasonable jury could conclude that AutoZone’s transfer of Stuckey violated Title VII because it did so to racially segregate him from Hispanic employees and customers.

Harris’s statement to Stuckey—that he was also transferring him to increase sales—is consistent with the race-based purpose of the transfer. As the Commission discussed in its opening brief, the Kedzie store had a customer base that was predominantly Hispanic, and multiple witnesses who worked at the Kedzie location testified that customers preferred to be helped by Hispanic employees, at times regardless of language ability. See EEOC Opening Br. 6-10. Harrington testified that there were times when Hispanic customers would not allow black employees like himself or Stuckey “to help them, even as far as ringing them up [at the cash register].” Apx-019 (Harrington 16).

Record evidence also shows that at least one Kedzie store manager understood that having Hispanic employees “up front” in the store would increase sales. Kemechia Wilkins, a former AutoZone employee at the Kedzie store, testified that her manager told her “she would rather have the Hispanics up front because we have a majority of Hispanics that shop at the store and they’re . . . more [sic] to buy from them and buy more from them than they would” from black employees. Apx-055 (Wilkins 69-70). This is evidence that would allow the reasonable inference that Harris transferred Stuckey out of the Kedzie store in July 2012 to reduce or eliminate the number of black employees working there because of the customer preference for Hispanic employees and to increase sales by catering to that racial preference.

From around and following July 2012, evidence of AutoZone’s personnel decisions at the Kedzie store—namely its repeated replacement of black managers with Hispanic managers and its failure to hire any additional black managers thereafter—provides further support for the finding that AutoZone began working to make the Kedzie store staff “predominantly Hispanic.” The record reflects that AutoZone replaced Stuckey at the Kedzie store with a Hispanic manager Gustavo Ocampo.[2] When Harrington voluntarily transferred out of the Kedzie store around September 2012, AutoZone replaced Harrington with Hispanic store manager Brahulio Herrera. Apx-014 (Cleveland 84); Apx-051 (Wilkins Decl. ¶¶ 12-13). Benitra Brown, the only other black manager at the Kedzie store, testified that Harris had suggested she transfer out of the Kedzie store sometime before Stuckey was transferred. See EEOC Opening Br. 15-16. She contacted Human Resources to communicate that she did not wish to transfer, and a transfer did not occur. Id.

After Stuckey and Harrington left, Wilkins—who worked at the Kedzie location through September 2014 (Apx-050, Wilkins Decl. ¶1)—stated that “no new African American managers were hired, promoted, or transferred into Store No. 4416 while I worked there.” Apx-051 (Wilkins Decl. ¶ 14). This evidence further supports the reasonable inference that Harris proceeded to do precisely what he told Stuckey he was trying to do beginning around July 2012—make the Kedzie store predominantly Hispanic to increase sales to its predominantly Hispanic clientele.

In response to this evidence, AutoZone asserts that its prior transfers of Stuckey into the Kedzie store in 2010 and 2011 show that its July 2012 removal of Stuckey out of the Kedzie store was race-neutral and renders the Commission’s claim “absurd.” Resp. Br. 16, n. 6. Because Harris had previously transferred Stuckey into the Kedzie store in 2011, AutoZone contends that the “same actor” inference refutes the Commission’s claim that Harris transferred Stuckey in July 2012 on a racially discriminatory basis. Resp. Br. 23. AutoZone also argues that the Commission’s claim fails because it alleges “‘partial’ segregation,” as the Kedzie store was not entirely one-race in staff but rather predominantly one-race. Id. at 24-25.

Evidence of any transfers of Stuckey[3] or other black employees[4] into the Kedzie store before July 2012 is immaterial to analyzing whether AutoZone began to segregate black from Hispanic staff by store location around and after that time. That is because the Commission’s claim is that—beginning around July 2012—AutoZone began to segregate its black staff from Hispanic staff. Stuckey testified that when he spoke to Harris about the July 2012 transfer, “[b]asically what [Harris] told me is that what he was trying to do with Store 4416 was keep it predominantly Hispanic and . . . get the sales back up where they’re supposed to be at.” Apx-046 (Stuckey 75-76). As already discussed, a reasonable jury could conclude from this evidence that low sales numbers at the Kedzie store prompted Harris to change business strategy by catering to the racial preference of its Hispanic customers and, accordingly, systematically reducing the number of black employees working at that location.

Further, AutoZone invokes the “same actor” principle to no avail. That principle does not apply under the circumstances of this case, and in any event, this Court has repeatedly stated such evidence is not determinative, one way or the other, of a discrimination claim. Herrnreiter v. Chi. Hous. Auth., 315 F.3d 742, 747 (7th Cir. 2002) (disagreeing with defendant’s assertion that evidence that the same person hires and later fires an employee creates a presumption that blocks a discrimination claim; “It is misleading to suggest . . . that this skepticism creates a ‘presumption’ of nondiscrimination, as that would imply that the employee must meet it or lose his case. It is just something for the trier of fact to consider.”); Johnson v. Zema Sys. Corp., 170 F.3d 734, 745 (7th Cir. 1999) (stating that the “same-actor inference” is “unlikely to be dispositive in very many cases,” as its relevance will turn on the facts of a particular case; stating “the same-actor inference is not itself evidence of nondiscrimination. It simply provides a convenient shorthand for cases in which a plaintiff is unable to present sufficient evidence of discrimination”). Here, that Harris made the decision to transfer Stuckey into the Kedzie store before 2012 does not undermine the Commission’s claim that Harris later transferred Stuckey out in July 2012 to racially segregate him from Hispanic employees and customers. Again, the evidence allows the reasonable inference that changed circumstances around July 2012—lower sales— prompted Harris to remove Stuckey from the Kedzie location on the basis that a homogenous Hispanic staff would increase sales among its predominantly Hispanic customers. Indeed, Stuckey testified that Harris told him that was the reason for his transfer. Apx-046 (Stuckey 75-76).

The “same actor” inference is also of no use here because there is direct evidence in this case that Harris transferred Stuckey because of his race. The “same actor” inference is typically used to rebut circumstantial evidence of discriminatory intent—that is, to show that the decisionmaker did not act, for example, with a racial motive because he had previously taken an employment action that was favorable to the employee. See, e.g., Johnson, 170 F.3d at 744-45 (discussing use of inference to rebut discriminatory motive). In this case, however, Stuckey testified that Harris told him the reason he was transferring Stuckey was because he wanted to make the Kedzie store “predominantly Hispanic.” Harris’s statement to Stuckey requires no inference to conclude that he acted based on Stuckey’s race: because Stuckey was not Hispanic, Harris was removing him from the store. As already discussed, Harrington also corroborated that he heard Harris make a comment to the effect that Harris wanted to make the store “predominantly Hispanic.” Where the record evidence, as here, contains direct evidence that the transfer was race-based, the fact that Harris had previously transferred Stuckey into the store does not rebut discriminatory intent. See Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004) (“Direct evidence is evidence that, if believed by the trier of fact, would prove discriminatory conduct on the part of the employer without reliance on inference or presumption.”).

AutoZone’s further assertion that the Commission’s claim in effect alleges “partial segregation” and thus, must fail, is not only a serious distortion of the Commission’s claim, but also fails to correctly apprehend the law. The Commission alleges that AutoZone violated Title VII because it engaged in an act of racial segregation by removing a black manager from a store with Hispanic staff and customers with the intent to racially segregate its workforce. Even more troubling is AutoZone’s suggestion that proving racial segregation requires evidence of complete racial homogeneity in the workforce—an argument that is both untenable as a legal proposition and as a matter of common sense. See, e.g., U.S. v. Int’l Longshoremen’s Ass’n, 460 F.2d 497, 499-500 (4th Cir. 1972) (affirming district court order merging two racially segregated locals in Title VII case pursuant to 42 U.S.C. § 2000e-2(c)(2), though neither local was entirely one-race; one local had “predominantly white” union membership and the other local was “composed almost entirely of black persons”). It is absurd to suggest that a defendant that intends to—and then acts upon its intent—to racially segregate its employees is not liable for segregation where the facts show it has not fully realized its discriminatory purpose of eliminating all black employees from the workplace. On such thwarted reasoning—that the employer failed to fully segregate its workforce—a defendant such as AutoZone here could defeat a segregation claim simply by retaining one or a few black employees in a workforce that is overwhelmingly Hispanic by design. The argument is plainly at odds with the purpose and enforcement of Title VII.

The one (unpublished) Circuit decision that AutoZone cites does not support its position. Resp. Br. 24 (citing Steward v. New Chrysler, 415 F. App’x 632, 640 (6th Cir. 2011). The Sixth Circuit in Steward did not analyze a Title VII claim based on racial segregation pursuant to § 2000e-2(a)(2), and did not hold that proving racial segregation required evidence of complete racial homogeneity. Steward, 415 F. App’x at 640-41. Rather, the Court in Steward analyzed a disparate treatment claim in which a black plaintiff alleged that she received disciplinary write-ups for infractions that others were not disciplined for, and that the assembly line she worked on was racially segregated into black and white sections. Id. at 633-34. There was no evidence that the plaintiff’s supervisor assigned employees by race, and the evidence reflected that white employees would replace her when she was absent and also worked alongside her and other black employees. Id. at 634–36. “Even more importantly,” the Sixth Circuit emphasized the plaintiff’s testimony that she had chosen her own place on the assembly line. Id. at 640. In that context, the Sixth Circuit held that the facts did not support holding that she had suffered an adverse employment action in that case. Id. at 640-41 (“A blanket but unsupported claim of there being ‘a segregated assembly line’ falls short of establishing the requisite facts to survive a motion for summary judgment.”). By contrast, the evidence here includes testimony that Harris said he wanted to make the Kedzie store “predominantly Hispanic,” and that this was the reason he transferred Stuckey.

II. AutoZone’s July 2012 transfer deprived Stuckey of the employment opportunity of working at the Kedzie store location, and tends to deprive other black managers and employees of the same.

42 U.S.C. § 2000e-2(a)(2) prohibits racial classification, limitation, or segregation “in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.” 42 U.S.C. § 2000e-2(a)(2). As the Commission argued in its opening brief, the evidence here shows that the harm proscribed by 42 U.S.C. § 2000e-2(a)(2) occurred in this case: AutoZone’s involuntary July 2012 transfer of Stuckey out of the Kedzie store, in plain fact, deprived him of the employment opportunity of working at the Kedzie location. EEOC Opening Br. 27-29.

In response, AutoZone does not and cannot contest the broad and inclusive language of § 2000e-2(a)(2) or that working at the Kedzie store is an employment opportunity. Instead, AutoZone simply objects that accepting the Commission’s argument would mean “every single lateral transfer would constitute a deprivation of opportunity because a transfer, by its very nature, involves a movement out of one location to another.” Resp. Br. 20. AutoZone then cites inapposite authority—decisions discussing transfers in the context of disparate treatment, not segregation, claims—to contend that the Commission’s argument is “utterly baseless” and that it must show the transfer was materially adverse. Resp. Br. 20 (citing Chaib v. Indiana, 744 F.3d 974, 982-83 (7th Cir. 2014) (analyzing Title VII claim absent any allegation of segregation); Lucero v. Nettle Creek School Corp., 566 F.3d 720, 730-31 (7th Cir. 2009) (same)).

The text of § 2000e-2(a)(2) proscribes the actual deprivation of an employment opportunity (“deprives”), possible deprivation (“tends to deprive”), or an “adverse effect” on an individual’s status as an employee. 42 U.S.C. § 2000e-2(a)(2). For a transfer to be actionable, it must meet the requirements of § 2000e-2(a)(2), such as being undertaken to racially segregate employees. Thus, AutoZone is incorrect that every transfer will constitute an actionable deprivation under 42 U.S.C. § 2000e-2(a)(2). Given the evidence here that the purpose of AutoZone’s transfer was to racially segregate Stuckey from Hispanic employees and customers, the July 2012 transfer actually deprived Stuckey of the employment opportunity of working at the Kedzie location within the meaning of § 2000e-2(a)(2).

AutoZone also suggests that the July 2012 transfer was responsive to an earlier request by Stuckey to transfer out of the Kedzie store, and therefore, the transfer was not adverse to him. Resp. Br. 19. That assertion, however, is contested by other record evidence—from multiple witnesses—that Stuckey did not want to transfer out of the Kedzie store in July 2012.

Cleveland testified that she “only became involved in the transfer once I found out that Mr. Stuckey did not want the transfer.” Apx-015 (Cleveland 87). She also testified that Stuckey called her on the phone and told her he did not want to transfer, and “that was basically the gist of him telling me he just did not want to go.” Apx-016 (Cleveland 91). When Cleveland told him the transfer would be beneficial because the other store was closer to his home, she testified that he “complained” about this as well, because he now lived in another location. Cleveland 93. Referring to the July 2012 transfer, Cleveland knew “for sure I talked to [Harris] about the fact that I had talked to Kevin and that he didn’t want the transfer.” Cleveland 93-94.

Brown also testified that Stuckey did not want the July 2012 transfer. Apx-003 (Brown 25). Wilkins testified that she knew Stuckey did not want to transfer because Stuckey and Harrington “had an altercation inside the store when Vernon was telling him that he was going to be transferred to a different location. And he said he didn’t - he didn’t want to go.” Wilkins 61. Stuckey himself testified that although he would not mind a transfer close to his home, the July 2012 transfer was objectionable because it was based on his race. Apx-049 (Stuckey 122). Accordingly, AutoZone’s emphasis on Harrington’s testimony that Stuckey had sought a transfer out of the Kedzie store before July 2012 does not show that the July 2012 transfer itself was welcomed by Stuckey, or was not a deprivation or adverse to him based on his race.

AutoZone’s transfer of Stuckey out of the Kedzie store to segregate black and Hispanic employees would also tend to deprive other black employees from working at that location, as the Commission explained in its opening brief. EEOC Opening Br. 28. Certainly, if an employer has decided to exclude an employee from a work opportunity based on his race, it is logical to conclude that other members of the same racial group will similarly be deprived of that employment opportunity. In Kyles v. J.K. Guardian Security Services, Inc., 222 F.3d 289, 298 (7th Cir. 2000), this Court explained that unsurprising effect: “[w]hen a job applicant is not considered for a job simply because she is African–American, she has been limited, segregated or classified in a way that would tend to deprive not only her, but any other individual who happens to be a person of color, of employment opportunities.”

Here, Harris told Stuckey and Harrington that he wanted to make the Kedzie store predominantly Hispanic. Harris told Stuckey he was transferring him in July 2012 for that reason. That evidence alone, drawn in the light most favorable to the Commission, allows the reasonable inference that if Harris was transferring Stuckey out of the store because he was black, other black employees would also have little or no opportunity to be employed at the Kedzie location after July 2012.

In this case, that logical conclusion is further supported by record evidence showing the difference in staffing at the Kedzie store before and after July 2012. The evidence shows that before July 2012, out of approximately 32 employees, there were four black employees at any one time at the Kedzie location: Benitra Brown and Kevin Stuckey, who were both parts sales managers; Kemechia Wilkins, a commercial driver; and store manager Walida Wilkie, who was later replaced by Vernon Harrington as store manager. Apx-050 (Wilkins Decl. ¶¶ 1–7); Apx-057 ¶ 4 and Apx-59-60 (reflecting that before July 2012, 26 out of 32 employees at the Kedzie store were Hispanic, and four were black). From July 2012, however, the evidence shows that a shift occurred. Once Stuckey was transferred in July 2012, Harrington voluntarily transferred out of the Kedzie store and was replaced by a Hispanic manager Brahulio Herrera. Apx-051 (Wilkins Decl. ¶¶12-13). That left Wilkins and Brown as the Kedzie store’s two remaining black employees.

Wilkins testified that she had never requested a transfer out of the Kedzie store before 2012, but did so at some point after Harrington left in September 2012, partly because of “not being able to get promoted and things like that.” Wilkins Depo. 48-49.[5] The only new black employee AutoZone hired into the Kedzie location around that time was Lashun Nash (Apx-036, Nash 19), in November 2012 (Nash 11-12), as a part-time sales employee. Apx-036 (Nash 21). Nash testified that “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). A few weeks before Nash ended his employment with AutoZone, Gustavo Ocampo, a parts sales manager at the Kedzie store, told him that he was going to be transferred because of who he was (Nash 41), which Nash understood to refer to his race (Nash 54). Ocampo told Nash that the reason for the transfers was because Mexican customers were more comfortable with Mexican employees. Apx-040 (Nash 42). Ocampo had several conversations with Nash about this. Id. Nash stopped working at AutoZone after Herrera told him he would call when he needed Nash to come in, but then never called Nash to come in. Nash 47. Nash ended his employment with AutoZone around February 2013. Apx-036 (Nash 19).

Wilkins quit her job at AutoZone in September 2014 because “I got tired of being pushed back and the Hispanics started coming in and getting promotions or getting better time and things like that when I’ve been with the company for five years and wasn’t going anywhere.” Wilkins 13-14. By the time Wilkins left, Brown was the only remaining black employee at the Kedzie location. Apx-051 (Wilkins Decl. ¶ 16).

This record evidence would allow a reasonable jury to conclude that around July 2012, Harris decided to create and maintain a racially homogenous Hispanic staff at the Kedzie store and transferred Stuckey to segregate him from Hispanic employees, all of which had the effect of depriving or tending to deprive Stuckey and other black managers and employees of the employment opportunity to work at the Kedzie location.

III. Under 4 2 U.S.C. § 2000e-2(a)(2), there is no requirement that an act of segregation must affect an employee’s compensation or substantially alter his working conditions to constitute a violation.

The sole basis for the district court’s grant of summary judgment in this case was its legal conclusion that although the Commission was asserting a violation of 42 U.S.C. § 2000e-2(a)(2)—the subsection of Title VII prohibiting the racial segregation of employees—it was additionally required to show that AutoZone’s July 2012 transfer resulted in an economic harm or substantial change in Stuckey’s working conditions to establish a violation. AD-008-10 (order at 8-10).

As the Commission discussed in its opening brief, nothing in the text of § 2000e-2(a)(2), or this Court’s precedent interpreting that subsection, requires a showing that an act of racial segregation must culminate in an effect on compensation or working conditions to constitute a violation. EEOC Opening Br. 29-36. AutoZone offers no response to the Commission’s reading of the statute’s plain language, or its comparison of 42 U.S.C. § 2000e-2(a)(1), which expressly requires that the discrimination manifest in an effect on compensation or working conditions, and § 2000e-2(a)(2), which makes no reference to those terms. Cf. EEOC Opening Br. 34-36 and Resp. Br. 13-22. Rather, AutoZone merely reiterates—in reliance on decisions from this Court analyzing Title VII claims that do not allege segregation—that the Commission must show evidence that the transfer was “materially adverse” to Stuckey. Resp. Br. 17-19 (citing Lucero, 566 F.3d at 730) (disparate treatment case with no claim or any allegations of segregation); Chaib, 744 F.3d at 982 (same); Hunt v. City of Markham, Illinois, 219 F.3d 649, 653-54 (7th Cir. 2000) (same); Porter v. City of Chicago, 700 F.3d 944, 954 (7th Cir. 2012) (same); Herrnreiter, 315 F.3d at 744 (same)).[6]

The Commission also discussed the Second and Eleventh 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), as examples of analyses that concluded illegal race discrimination had occurred, though there was no change in the plaintiff’s compensation or a materially different change in their working conditions. EEOC Opening Br. 21-23. The Commission then discussed Circuit precedent analyzing the analogous Title VII provision prohibiting segregation with respect to labor organizations, as both the holdings and rationale in those cases demonstrate that the adverse action in a segregation case is the act of segregation itself. EEOC Opening Br. 24-25.

In response, AutoZone attempts to distinguish Knight and Ferrill factually (Resp. Br. 15-17), and argues in a footnote that decisions concerning segregated unions do not support the Commission’s position. Resp Br. 17, n. 7. AutoZone also argues—despite earlier asserting that the statute requires either a deprivation of an employment opportunity or an adverse action—that establishing a prima facie case under 42 U.S.C. § 2000e-2(a)(2) nonetheless requires showing that the employee also suffered a “materially” adverse action. Cf. Resp. Br. 13 (heading) and 18.

Both the Knight and Ferrill decisions support the Commission’s argument that liability for racial discrimination may be premised on evidence that the basis for the employment decision was to segregate employees based on race, without additionally showing that the employment action itself resulted in a “material” change in compensation or working conditions. In Knight, for example, the Second Circuit held that the employer had violated Title VII when it transferred a black employee from one position to another, though the transfer did not result in a change in salary or benefits. Knight, 649 F.2d at 162. Because the transfer “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,” the court of appeals held that the transfer was a violation of Title VII. Id.

AutoZone contends that Knight is inapplicable because the transfer in that case resulted in a change in the plaintiff’s job function (Resp. Br. 15), but the Second Circuit made clear that the basis for its holding was that the transfer was based on an impermissible racial stereotype. Knight, 649 F.2d at 162. Indeed, the Second Circuit in Knight did not discuss whether the transfer was a material change in position or job duties nor did it engage in any analysis of such facts. See id.at 159-62. AutoZone also incorrectly contends that the plaintiff in Knight found his transfer demeaning but Stuckey, by contrast, did not. Resp. Br. 15. The evidence in this case, however, shows that Stuckey repeatedly objected to the July 2012 transfer and testified that it was objectionable because of its racial basis. See EEOC Opening Br. 11; supra pp. 15-16. Finally, that the employer in Knight admitted the racial basis for the transfer does not diminish the applicability of the Knight analysis to this case. The evidence here would similarly allow a reasonable jury to infer that Stuckey was transferred because of his race, based on AutoZone’s belief that Hispanic employees would work better and generate more sales among its predominantly Hispanic customer base.

AutoZone also asserts that the analysis in Ferrill does not bear on this Court’s disposition of this case. Resp Br. 15-16 (arguing that Ferrill only addresses the bona fide occupational qualification defense). But as the Commission explained in its opening brief, the facts in Ferrill, and the Eleventh Circuit’s discussion and basis for its affirmance of the district court’s finding of liability, support the Commission’s claim. EEOC Opening Br. 23.

In Ferrill, a telemarketing company segregated employees by race (black and white) to make political marketing calls for candidates, and assigned black employees to make calls to black voters, and white employees to make calls to white voters. Ferrill, 168 F.3d at 471. The district court premised liability on the employer’s admission that “the 1994 assignments of ‘get-out-the-vote’ calls and scripts were made on the basis of race and that TPG employees were segregated on the basis of race.” Id. at 473. The Eleventh Circuit affirmed, explaining that the “crucial issue then is whether a defendant who acts with no racial animus but makes job assignments on the basis of race can be held liable for intentional discrimination under § 1981 . Clearly, the answer is yes.” Id. (explaining that “[i]mplicit in the District Court’s finding is the notion that racial animus and intent to discriminate are not synonymous,” as the district court had expressly found no evidence that the employer had acted out of racial hostility).

Here, the Commission similarly contends that the sole basis for AutoZone’s liability is evidence of its race-based assignments and race-based segregation. Once again, that AutoZone does not admit racial segregation does not affect the applicability of the reasoning and facts in Ferrill to this case. The record evidence would allow a reasonable jury to conclude that AutoZone likewise segregated black manager Stuckey from Hispanic employees and customers, on the belief that Hispanic employees work better with Hispanic customers, and did so by physically removing him from that store. AutoZone’s records reflect that the store to which Stuckey was transferred in July 2012 had a staff with a racial composition that was predominantly black. See EEOC Opening Br. 13.[7] Following Stuckey’s transfer, and in response to Harrington’s request to transfer out of the Kedzie store, AutoZone transferred Harrington, but to a store with a staff that was “100 percent African-American.” EEOC Opening Br. 15. This evidence creates a triable issue as to whether AutoZone was racially segregating its employees by store location. This Court should hold, as the Eleventh Circuit affirmed in Ferrill, that where the evidence shows that assignments are made on the basis of race, such assignments are legally impermissible.

AutoZone also cites the Eleventh Circuit’s unpublished decision in Grimsley v. Marshalls of MA, Inc., 284 F. App’x 604 (11th Cir. 2008), for the proposition that “the Eleventh Circuit expressly stated that Ferrill did not remove” the adverse action requirement. Resp Br. p 16. Grimsley has no factual or legal relevance here, and involved no allegations of race-based segregation. In Grimsley, the Eleventh Circuit addressed factual allegations that the plaintiff was subjected to demeaning behavior from his supervisor and assigned tasks such as staying late, cleaning areas outside of his work responsibility, or working on weekends because of his race. 284 F. App’x at 606. On those facts, the Eleventh Circuit explained that the plaintiff’s Title VII claim failed because “sporadic assignments of additional tasks” did not amount to an adverse employment action. Id. at 609. The Court simply explained that it did not read Ferrill to eliminate the need to show an adverse employment action in that case. Id. In any event, the Commission is not asking this Court to eliminate the element of an adverse action from the prima facie case, but rather to hold that the adverse action for the purpose of a segregation case is the act of race-based segregation itself.

In response to the Commission’s reliance on Evans v. Sheraton Park Hotel, 506 F.2d 177 (D.C. Cir. 1974), in which the D.C. Circuit concluded that segregation of locals by sex was itself the Title VII violation under 42 U.S.C. § 2000e-2(c)(2), AutoZone argues that Evans is distinguishable because it involved differences in wages and assignments resulting from the sex-segregated locals. Resp. Br. 17, n. 7. The court of appeals, however, affirmed the district court’s liability finding on the basis of the sex-based segregation itself.

In Evans, the evidence showed that though waiters and waitresses were paid the same hourly rates for the same duties, the assignment of waiters to more lucrative events and duties—decided by a member of the waiters’ union—resulted in waiters as a group working more hours than waitresses and receiving larger total hourly compensation and larger gratuities. Id. at 184. In affirming the district court’s judgment, the Court of Appeals expressly stated that the district court was correct to hold that the “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. The Court of Appeals did not premise its holding on the evidence of material or economic differences, such as that waitresses were assigned less hours, received less total hourly compensation, or less gratuity. Id. at 184-86. Rather, there should be no doubt, the Court explained, “that Congress, in enacting Title VII found classifications based on sex inherently invidious.” Id. at 185-86. Discussing the necessity of injunctive relief against sex-segregated locals, the court of appeals observed that only granting the plaintiff’s individual relief for sex discrimination “would be akin to rather ineffective symptomatic relief, leaving the root (sexually segregated locals) to continue.” Id. at 181.

As the Commission argued in its opening brief, because 42 U.S.C. § 2000e-2(a)(2) is meant to dismantle the “root” cause of discriminatory effects on employment—that is, racial segregation—evidence of segregation is sufficient to establish a violation, without an additional showing of material adversity. EEOC Opening Br. 19-25; 29-32. Simply because segregation or classification based on a protected characteristic often results in diminished compensation or working conditions does not mean such a showing is required to establish a Title VII violation in a segregation case. EEOC Opening Br. 29-30 (discussing Henry v. Milwaukee Cty., 539 F.3d 573 (7th Cir. 2008). That is because 42 U.S.C. § 2000e-2(a)(2), as its plain text states, prohibits race-based segregation itself.

CONCLUSION

There is no requirement, either in the plain text of the statute or this Court’s precedent interpreting and applying 42 U.S.C. § 2000e-2(a)(2), to show a materially adverse effect on an employee to establish a Title VII violation. This Court should reverse the grant of summary judgment on the Commission’s discrimination claim and hold that the evidence in this case is sufficient to create a triable issue that AutoZone violated Title VII when it transferred Stuckey, because he was black, to segregate him from Hispanic staff and customers.

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

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[1] AutoZone’s contention that the “EEOC and Mr. Stuckey have never identified any witness who could corroborate Mr. Stuckey’s allegations regarding Mr. Harris’s comments,” Resp. Br. 10, is therefore incorrect.

[2] AutoZone contends that its business record reflecting that Hispanic employee Gustavo Ocampo was promoted in February 2012, before Stuckey was transferred in July 2012, is dispositive in showing that Ocampo did not replace Stuckey. Resp. Br. 26-27. That is incorrect. Testimony from several witnesses that Ocampo was Stuckey’s replacement disputes the business record, and this factual dispute warrants submission to a jury to resolve. Harrington, the manager for the Kedzie store, made hiring decisions for the Kedzie location. Apx-025 (Harrington 65). He specifically testified, when asked who replaced Stuckey as parts sales manager, that he promoted Ocampo. Apx-022 (Harrington 32). Further, contrary to AutoZone’s assertion, Wilkins did not testify that Ocampo was a parts sales manager while Stuckey was still employed at the store, as AutoZone states in error. Resp. Br. p. 27. Rather, Wilkins testified, referring to Ocampo and Stuckey, that, “Only thing I know is they both worked at the store around the same time. Was Gus a manager while Kevin was still working there? I don’t know.” Appellee Apx-0116 (Wilkins 97). With respect to the AutoZone record, Wilkins also answered, “I mean I can’t. I don’t know,” when asked whether she had any reason to dispute its accuracy. Appellee Apx-0118 (Wilkins 99). Finally, Benitra Brown, who was a parts sales manager herself alongside Stuckey (Apx-001, Brown 10, 12), testified that Ocampo became parts sales manager after Stuckey left. Apx-002-3 (Brown 21-22).

[3] Stuckey began working at AutoZone in 2008 and was transferred to the Kedzie store around September 2008. Appellee Apx-0012 (Stuckey 38). AutoZone then promoted Stuckey and transferred him out of the Kedzie store around May 2010. Appellee Apx-0028 (Stuckey 61). At some point thereafter, but no later than May 2011, AutoZone transferred Stuckey back into the Kedzie store. Appellee Apx-0033-4 (Stuckey 67-68).

[4] AutoZone makes a number of factual assertions regarding black employee hires into the Kedzie store, but all of the transfers cited by AutoZone preceded July 2012, with the exception of one—the hire of part-time black employee Lashun Nash. Resp. Br. 21 (citing the hires of Wilkie, Nash, Wilkins, and Harrington into the Kedzie store). See infra pp. 17-19 (discussing hires and transfers at the Kedzie store).

[5] Wilkins testified that in 2013, she asked Herrera for a promotion, which he denied. Wilkins Depo. 54-55; Apx-055 (Wilkins 73). Wilkins also testified that she believed Herrera discriminated against her because she was assigned fewer hours than other part-time employees, although she was a full-time employee; had asked to be transferred and was not; and asked to be promoted, but “he wouldn’t promote me.” Apx-055 (Wilkins 73).

[6] Aside from these cases, AutoZone cites Henry v. Milwaukee County, 539 F.3d 573 (7th Cir. 2008), without responding to the Commission’s argument in its opening brief that Henry did not reach the issue presented by this case. EEOC Opening Br. 29-30; Resp. Br. 18. AutoZone also cites an unpublished district court decision that granted a motion to dismiss on a Title VII claim. Resp. Br. 19, n. 8 (citing Del Carmen Pezoa v. Cnty. of Santa Clara, 2006 WL 571356 (N.D. Cal. March 3, 2006). There, the district court held that although the complaint alleged that workers were segregated by race, including with signage demarcating work areas by race, the plaintiff had failed to sufficiently allege that the segregation was an adverse employment action. Id. at * 1-3. While certainly of no precedential value to this Court, the legal reasoning in Del Carmen Pezoa simply reflects the same error committed by the district court in this case.

[7] AutoZone is correct that Harris testified he did not know the racial composition of the staff at Store 2290 in July 2012. Resp. Br. 23 (citing Appellee Apx-129-30, Harris 63-64). A reasonable factfinder, however, could conclude that as a district manager supervising stores in Chicago, Harris would have been familiar with the geographic territory and the customer base in those areas, consistent with his testimony that he was aware that the majority of customers at the Kedzie store were Hispanic. See Apx-028 (Harris 17-18) (testifying that he has been a district manager since 2007 in the Chicago area); Apx-030 (Harris 33-34) (testifying that he was aware that the majority of customers at Store 4416 were Hispanic). The location of the store to which Stuckey was transferred was on 103rd Street and South Michigan Avenue. Apx-047 (Stuckey 95).

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTRODUCTION

ARGUMENT

I. The evidence would allow a reasonable jury to conclude that AutoZone violated 4 2 U.S.C. § 2000e-2(a)(2) when it transferred Kevin Stuckey out of the Kedzie store in July 2012 for the purpose of racially segregating him from Hispanic staff and customers.

II. AutoZone’s July 2012 transfer deprived Stuckey of the employment opportunity of working at the Kedzie store location, and tends to deprive other black managers and employees of the same.

III. Under 4 2 U.S.C. § 2000e-2(a)(2), there is no requirement that an act of segregation must affect an employee’s compensation or substantially alter his working conditions to constitute a violation.

CONCLUSION

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

I. The evidence would allow a reasonable jury to conclude that AutoZone violated 42 U.S.C. § 2000e-2(a)(2) when it transferred Kevin Stuckey out of the Kedzie store in July 2012 for the purpose of racially segregating him from Hispanic staff and customers.

III. Under 42 U.S.C. § 2000e-2(a)(2), there is no requirement that an act of segregation must affect an employee’s compensation or substantially alter his working conditions to constitute a violation.

I. The evidence would allow a reasonable jury to conclude that AutoZone violated 4 2 U.S.C. § 2000e-2(a)(2) when it transferred Kevin Stuckey out of the Kedzie store in July 2012 for the purpose of racially segregating him from Hispanic staff and customers.

III. Under 4 2 U.S.C. § 2000e-2(a)(2), there is no requirement that an act of segregation must affect an employee’s compensation or substantially alter his working conditions to constitute a violation.