50 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP a “but for” connection between the EEOC lawsuit and her termination.168 Rather, the evidence offered by BNSF demonstrated a rich disciplinary record relative to Merker which BNSF argued was the cause of her termination, and the EEOC failed to offer sufficient evidence to suggest otherwise. Employers should be mindful of BNSF because it highlights a rather basic defense that could be overlooked when scrambling to defend these motions under strict time-constraints. In BNSF, the District Court rejected the EEOC’s attempt at obtaining immediate relief for something that, though related to the underlying lawsuit, was not specifically alleged in the pending complaint. When the EEOC or other plaintiff files a TRO, employers and their attorneys should first look to whether the operative complaint specifically alleges the claim that provides the underlying basis for the TRO. If there is an inconsistency in such respect, employers should rely on BNSF in arguing that the motion should be denied. 168 Id. at *22.
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