©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 49 and retaliation for opposing such alleged discrimination and harassment. On November 24, 2020, the EEOC issued a letter of determination stating that the EEOC had reasonable cause to believe that BNSF violated Title VII because Merker and other female employees were subjected to harassment and Merker was disciplined for complaining about the alleged harassment.155 The EEOC was unable to reach a conciliation agreement with BNSF.156 On September 23, 2021, the EEOC sued BNSF under Title VII on behalf of Merker and other aggrieved individuals adversely affected by similar conduct, but amended its complaint on December 20, 2021, alleging that Merker has been harassed by coworkers’ sexual and demeaning comments and other conduct.157 The amended complaint further alleges that BNSF’s supervisors and human resources personnel turn “blind eye” to harassment, but does not assert a claim of retaliation on behalf of Merker or other aggrieved individuals.158 On April 15, 2022, the District Court granted in part and denied in part BNSF’s motion to dismiss, finding that the EEOC stated a plausible claim for sexual work environment on behalf of Merker, but failed to do so on behalf of the other aggrieved individuals.159 While the motion to dismiss was pending, BNSF terminated Merker for alleged attendance issues.160 Before the District Court entered the above-mentioned decision on the motion to dismiss, the EEOC filed a TRO request with the District Court to immediately reinstate Merker’s position and from retaliating against female employees from cooperating with the EEOC in the pending lawsuit.161 The District Court denied the EEOC’s motion. At the outset of its analysis, the District Court held that the EEOC could not prevail on its motion because the amended complaint in the pending lawsuit did not state a claim for retaliation—the very basis for its request for a TRO.162 The District court explained that while no single factor of the TRO analysis is determinative, the “probability of success factor is the most significant.” 163 This factor requires the movant to demonstrate at least a fair chance of prevailing,” or an “adequate showing of a nexus between the unlawful conduct and the responsible individuals.” 164 Critically, the District Court observed that the likelihood of success “is considered in light of the elements of the movant’s claim.” 165 In BNSF, the EEOC argued in support of its request for a TRO only that it is likely to succeed in proving BNSF terminated Merker in retaliation for the EEOC’s lawsuit based on her charge of discrimination. That claim, however, is missing from the amended complaint—which only alleges hostile work environment—and therefore could not substantiate the crucial factor (likelihood of success) of its TRO request. The District Court nevertheless evaluated the merits of the EEOC’s TRO motion and found that it failed to show irreparable harm because the EEOC failed to demonstrate an emergency, a TRO would be unlikely to preserve the status quo, and the EEOC failed to demonstrate irreparable harm from Merker’s termination. Specifically, the District Court found the EEOC’s attempted bureaucratic excuse for failing to file the TRO for more than two weeks unavailing: “If the EEOC wishes to file TRO actions, it must comply with the law to do so. This means it must find a way to timely file a TRO, just as any other party must do … .” 166 Further, the District Court held that the EEOC’s request for relief was not proper preliminary injunctive relief, but rather affirmative relief—reinstatement of Merker’s position.167 Lastly, the District Court found a lack of irreparable harm from Merker’s termination because the EEOC failed to offer sufficient evidence supporting 155 Id. at *2. 156 Id. 157 Id. 158 Id. 159 Id. 160 Id. 161 Id. 162 Id. (citing Carson v. Simon, 978 F.3d 1051, 1059 (8th Cir. 2020)). 163 Id. at *15-16. 164 Id. at *16 (citations and quotations omitted). 165 Id. 166 Id. at *20. 167 Id. at *21.
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