By Gretchen Schuldt

​Walmart must pay a jury verdict to a former employee of a Beloit store who lost his job after a store manager decided the employee’s disabilities prevented him from doing his job as a cart attendant, a federal appeals court has ruled.

The three-judge panel for the Seventh Circuit Court of Appeals upheld the jury's conclusion that the employee, Paul Reina, could adequately perform his job as cart attendant. The panel rejected Walmart's argument that a full-time job coach is never a reasonable accommodation under the Americans with Disabilities Act.

The district court had awarded Reina $200,000 in compensatory damages plus punitive damages. The appeals court declined Walmart's request to reverse the punitive damages award on the ground that the theory of liability was novel.

The panel also rejected a request by the Equal Employment Opportunity Commission for an injunction that would require Walmart to take numerous steps to prevent future discrimination. 

“Because the jury had sufficient evidence to find as it did and because the district court did not abuse its discretion, we affirm,” U.S. Circuit Judge Thomas L. Kirsch II wrote for the panel. He was joined by Circuit Judges Frank H. Easterbrook and Ilana D. Rovner.

The decision upheld an earlier ruling by U.S. District Judge James D. Peterson of the Western District of Wisconsin. The jury awarded Reina $5 million in punitive damages, but Peterson reduced the amount to $100,000 to satisfy a statutory damages cap. 

Reina worked for Walmart from 1998 to 2015. He is deaf and legally blind and has anxiety, according to the decision. He communicates through sign language, gestures, and facial expressions and was assisted in his job by Medicaid-paid full-time job coaches. He had three different coaches over the course of his employment.

All apparently was fine until a new manager took over the store in 2015. Another employee, who did not witness the incident, reported that Reina and his job coach were fighting in the parking lot. The manager did not review what happened, but decided to watch Reina at work. He expressed concern that Reina’s job coach was doing “90-95% of Reina’s job,” Kirsch wrote.

The manager eventually suspended Reina and told Reina’s foster mother to fill out paperwork as if Reina were a new employee. That included having a doctor fill out a medical accommodation questionnaire.

Communication stopped for almost a year, and Reina filed a complaint with the EEOC. Then, in March 2016, Walmart wrote to Reina asking him to continue the employment process. 

The EEOC sued on Reina’s behalf, alleging that Walmart discriminated against Reina and violated the Americans with Disabilities Act. Walmart sought summary dismissal, arguing that Reina could not perform the essential functions of his job and that a full-time job coach was never a reasonable accommodation. Peterson denied the motion, ruling that those were questions for a jury. Peterson also rejected Walmart’s request that the trial be broken into two phases, one to determine liability and a second to determine damages.

Both sides agreed on the essential functions of a cart attendant, Kirsch wrote. Peterson also adopted Walmart’s recommended jury instructions. But at trial, Walmart lost. A jury found that Walmart violated the ADA by failing to provide Reina with a reasonable accommodation and by ending Reina’s employment because of his disability. It also found that Walmart acted with malice or reckless disregard of Reina’s rights under the ADA, Kirsch said.

Walmart argued on appeal that Reina could not perform important parts of his job, which include retrieving, organizing, and managing traditional and motorized carts and providing customer service, Kirsch wrote.

“But its theory on appeal asks us to reweigh evidence as if this were a jury trial,” he said.  “Rather than come to grips with the evidence presented at trial and evaluated by the jury, Walmart signals that we should determine de novo which cart attendant functions were essential and whether Reina was able to perform those functions.”

At trial, Kirsch wrote, two of Reina’s job coaches testified that he was able to perform the essential functions. One testified that Reina “was able to do the job with very minimal intervention from me, no hand or anything like that.” The other said that Reina “had complete control” over the carts so that the coach had no “physical role in steering the train of carts [Reina] was pushing.” 

“Walmart argues that Reina was unable to perform the essential functions of a cart attendant because he could not steer the carts safely by himself, but a reasonable jury could disagree and, apparently, did,” Kirsch wrote. “We will not second-guess its weighing of the evidence.”

Walmart also argued that Reina could not perform essential functions of his job because he could not handle motorized carts by himself.

“And the jury reasonably could have determined that retrieving motorized carts was not an essential function based on the evidence before it: that motorized carts were abandoned in the parking lot only once or twice a month," Kirsch wrote.

The jury also had enough information to find that customer service was not an essential function of Reina’s job, he said. And even if it was an essential function, there was enough evidence to find that Reina performed it.

A job coach testified that “Reina could point customers in the right direction when they asked for something in the parking lot,” Kirsch wrote. “Reina regularly helped people load things into their cars and helped elderly customers by collecting their empty carts so that they would not have to walk them back themselves. Customers told (the coach) that seeing Reina work there made them feel proud of Walmart. And Reina’s performance evaluations from Walmart praised him for being friendly and courteous.”

In rejecting Walmart’s argument that a full-time job coach is never a reasonable accommodation – a rule no other circuit has created – Kirsch noted that an employer is not required to pay for having two people do the same work.

“But neither Reina nor the EEOC asked for Walmart to pay for Reina’s job coaches,” he wrote. “So we need not decide when, if ever, that would be required as a reasonable accommodation under the ADA.”

The jury had sufficient evidence to find for the EEOC, he wrote.

The panel also said that the EEOC’s theory of liability was “by no means ‘novel.’ ”

“Because our case law bases the definition of reasonable accommodation on the circumstance specific question of essential functions, Walmart was on notice that a jury could find a full-time job coach to be a reasonable accommodation for Reina if he or she did not perform the essential functions of Reina’s job," Kirsch said. "Contrary to what Walmart argues, it’s not an open question whether a permanent job coach can be a reasonable accommodation," Kirsch wrote.

Peterson also did not abuse his discretion in denying Walmart’s request for a two-part trial, the appeals court said.

“Time and again, the district court gave limiting instructions to mitigate any potential prejudice to Walmart due to a unified trial,” Kirsch said. ”And nothing in the record disposes us to disagree with the district court’s conclusion that judicial efficiency favored no bifurcation in this case.”

In rejecting the EEOC’s request for an injunction, the panel found that Peterson did not abuse his discretion ”in evaluating factors and concluding that ‘this incident at one store involved unique circumstances that do not justify the far-reaching injunction that EEOC seeks.’ ”

By Gretchen Schuldt

​More than 16 years after the Milwaukee County judge presiding over Danny Wilber's murder trial ordered him shackled to a wheelchair during closing arguments, a federal appeals court ordered a new trial because the visible shackling was prejudicial to the jurors.

The ruling by a three-judge panel of the Seventh Circuit Court of Appeals upheld a decision by U.S. District Judge William Griesbach, who last year granted Wilber's habeas corpus petition. The Seventh Circuit decision also overturned a 2008 State Court of Appeals' decision sustaining the shackling. (For more on the case, see WJI's previous post here.)

​"The visible shackles reinforced the very argument that the prosecutor was making as to why Wilber must have been the person who shot (David) Diaz, effectively signaling that the court itself agreed with the State’s characterization of Wilber as a “guy who couldn’t control himself,” U. S. Circuit Judge Ilana Rovner wrote for the panel. "It is difficult to imagine a more prejudicial action the court could have taken at that point in the trial."

She was joined in her decision by U.S. Circuit Judges Daniel Manion and Michael Kanne.

Both Griesbach and the appeals panel said the state's physical evidence tying Wilber to the 2004 crime was problematic, but that it was not so weak that the case should be dismissed on that basis. Both ruled, though, that Milwaukee County Circuit Judge Mary Kuhnmuench – now retired – erred seriously in February 2005 when she ordered Wilber visibly shackled.

"For over 50 years, the Supreme Court has recognized that the fairness of a trial is brought into question when a defendant is made to appear before a jury bearing the badges of restraint," Rovner wrote. "This is the very sort of circumstance that can divert the jury’s attention and lead it to convict the defendant based on something other than the evidence put forward against him at trial."

In a 2005 case, Deck v. Missouri, the U.S. Supreme Court set a standard for when defendants could be visibly shackled. Judges may need to order shackles  "to prevent courtroom attacks, or the need to give trial courts latitude in making individualized security determinations," the Supreme Court said.

The court also said, however, that the the reason for visible shackling must be tied to the specific circumstances of a particular case. 

That is where both Kuhnmuench and the state appellate court failed, Rovner said. Neither specifically stated why visible shackling was necessary.

Wilber's ankle was manacled and attached to a bolt in the floor during the trial. That shackle could not be seen by the jury. During the trial, after Wilber grew angry outside the presence of the jury, Kuhnmuench ordered additional deputies for the courtroom and that a stun belt be attached to Wilber's arm. The stun belt also was hidden from the jury's view.

At different times during the trial, Wilber fought and argued with deputies outside the courtroom, asked them questions that suggested he might be planning an escape attempt, accused the judge of aiding the prosecution, and made facial and other gestures that Kuhnmuench took as signs of disrespect. In addition, three men in the courtroom made comments to court staff that could be heard as threats and one person was caught listening at the door of the judge's private office.

Kuhnmuench, based on Wilber's disruptive behavior, "could reasonably conclude that restraints were warranted," Rovner said. Yet, until the trial's closing arguments, Kuhnmuench ensured that Wilber's shackleswere not visible to the jury. 

"Although the trial court articulated a justification for its decision to impose still more restraints at the closing-argument stage of the trial, it offered no explanation – none – as to why these additional restraints had to be visible to the jury, even when Wilber’s counsel objected repeatedly...." Rovner said. 

Likewise, the state appeals panel "never articulated why, to the extent the additional restraints
were justified, they must be restraints that were visible to the jury," she said.

"When the jury heard these (closing) arguments, Wilber was in a courtroom, sitting at the defense table, on trial for murder...." she wrote. "He had every incentive to behave himself in front of the jury charged with deciding his fate. Yet the visible shackles that he wore for closing arguments signaled to the jury that Wilber was incapable of self-control even when his own freedom was at stake, that the court itself perceived him to pose such a danger that he must be physically strapped to a wheelchair in order to protect everyone else in the courtroom." 

y Gretchen Schuldt

A federal appeals court hammered the Wisconsin court system last week in a ruling that may finally provide a hearing to a man who has waited in vain for more than four years to get his appeal considered by a state court.

Marvin Carter, the federal court said, can pursue his habeas corpus petition in federal court.

"Though we recognize that state court remedies exist in theory in Wisconsin and should be available, the last four years have demonstrated that those remedies are, at least for Carter, inaccessible," U.S. Circuit Judge Michael Y. Scudder Jr. wrote.

​Carter "has weathered a ten-month transcript delay, three different public defenders, and 14 extension requests by counsel and the trial court itself," Scudder wrote. "At no point during these four years has a single court in Wisconsin ruled on the merits of Carter’s colorable challenge to his sentence. None of this is Carter’s fault." 

"Carter contends that state court remedies in Wisconsin are ineffective to protect his rights. We agree, for the facts in this case afford no other reasonable conclusion....The length of the delay should have sounded an alarm bell within the Wisconsin courts, the public defender’s office, and even the Attorney General’s office," Scudder said.  

Carter's experience in the state court system has been "extreme and tragic," Scudder wrote for the Seventh Circuit Court of Appeals panel. Circuit Judge Michael B. Brennan joined the opinion and Circuit Judge Frank H. Easterbrook concurred, saying the decision did not go far enough in some areas of analysis.

Carter's odyssey began in 2016, when he was charged in Milwaukee County Circuit Court with possessing heroin, cocaine, and other drugs with intent to deliver and with felon in possession of a firearm.

He reached a plea agreement in the middle of trial, agreeing to plead guilty to the heroin and gun charges. The district attorney's office agreed to recommend a six-year sentence.

When sentencing time rolled around, though, Assistant District Attorney Laura Crivello (now a Milwaukee County circuit judge) retreated from the deal.

She told the court: “In hindsight, I so wish we would have allowed this to proceed through to the end of the trial and let the jury make their verdict because then I would have had four counts on the table today.”

Circuit Judge Janet Protasiewicz, instead of honoring the plea agreement, sentenced Carter to nine years, three more than agreed upon. 

It was 2017 by then. Carter tried to appeal, arguing that Crivello breached the plea agreement and that Protasaiewicz sentenced him based on inaccurate information, both violations of his 14th Amendment due process rights.

Things went wrong almost from the beginning.

Carter filed a notice of his intent to seek postconviction relief with the trial court well within the 20-day time limit. The state public defender's office assigned him a lawyer.

"But stagnation soon followed," Scudder said. "The clerk and court reporter took 10 months to locate and share the trial transcripts that Carter’s counsel requested – a step that should have been completed within 60 days."

Carter's lawyer, on the day the postconviction motion was due, asked for more time. 

"He explained that his heavy caseload prevented him from meeting with Carter or reviewing the case materials," Scudder said. The lawyer, Leon Todd, also asked for a retroactive extension of time to request certain transcripts. The state Court of Appeals granted both. (Full disclosure: Todd is a WJI Board member.)

"With the benefit of hindsight, we now know that the delay for Carter was just beginning. Carter’s counsel followed his first request to extend the deadline to file the postconviction motion with a second. And a third. And a fourth," Scudder wrote. "This pattern continued for months, with Carter’s counsel filing a new extension request on each day the prior request was due to expire. By late 2019 – more than two years after Carter’s July 2017 conviction and sentence – counsel had filed seven requests to extend the motion deadline. The Wisconsin Court of Appeals granted each motion in rote fashion."

By Margo Kirchner

A person’s Fourth Amendment rights are not completely extinguished upon conviction of a crime, the Seventh Circuit Court of Appeals held recently in overruling two prior cases that suggested otherwise.

In particular, the court concluded that the Fourth Amendment protects a convicted person’s right to bodily privacy, though the right is significantly limited.

The case stems from a prison training exercise in which women were forced, among other things, to undergo strip searches and stand for several hours without water or bathroom breaks as part of a training session for prison guards.

The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

Circuit Judge Amy J. St. Eve wrote for the en banc (full) court in Henry v. Hulett. The decision reversed a lower district court’s dismissal of a class-action suit alleging Fourth Amendment violations and remanded the case for further proceedings. The lower court found that the women had no right to privacy after conviction.

In the lawsuit, Delores Henry and three other female plaintiffs alleged that strip searches conducted as cadet training violated their Fourth and Eighth Amendment rights. The women filed a class action lawsuit on behalf of more than 200 former and current female inmates at the medium-security Lincoln Correctional Center in Illinois. Wisconsin also is in the Seventh Circuit, so the appeals court’s ruling applies here as well as in Illinois.

The training exercise in 2011 simulated a “mass shakedown,” in which guards search prisoners’ living areas and perform strip searches to find contraband.

No emergency or safety concerns existed on the day the training took place, and the two prison housing units searched were randomly chosen.

A tactical team called “Orange Crush,” Lincoln correctional officers, and cadets from the Illinois Department of Corrections training academy conducted the mass shakedown. Orange Crush members were outfitted with full riot gear, including helmets, armored vests, military boots, shields, batons, and pepper spray.

In the early morning, Orange Crush members banged batons on walls and doors of prison cells, and correctional officers and cadets yelled at inmates to wake up and get in line. Officers and cadets lined up 200 women facing the wall, and cadets handcuffed them as practice. Some elderly women cried in pain after standing handcuffed for a long time.

Officers ordered the women to the prison gym while screaming obscenities at them and calling them sexually derogatory names. In the gym, correctional officers forced the women to stand facing the wall, shoulder to shoulder. Orange Crush members and correctional officers ordered cadets to perform strip searches on groups of four to 10 women at a time. The women in the gym remained standing, with no water or restroom breaks. Some stood for seven hours.

Although female cadets performed the strip searches in a bathroom and beauty shop adjacent to the gym, those spaces were open and visible, allowing male correctional officers and cadets to view the searches taking place.

During the searches, the incarcerated women were ordered to remove all clothing; lift their breasts and hair; turn around, bend over, and spread their buttocks and vaginas; and cough several times. Women stood naked for as long as 15 minutes.

By Gretchen Schuldt

​Polk County is not liable for the actions of a county jail corrections officer who repeatedly sexually assaulted two female inmates while they were incarcerated, a federal appeals court ruled last week in a split decision.

The assaults occurred over three years.

In tossing out two $2 million jury verdicts against Polk County for compensatory damages, the three-judge Seventh Circuit Court of Appeals panel did uphold $5.75 million in verdicts for each of the women against the guard, Darryl Christensen, who is now serving a 30-year stretch in prison. 

Christensen is liable for the full $2 million compensatory damages verdicts and $3.75 million in punitive damages for each woman.

"Although we do not overturn a jury verdict lightly, we must assure the jury had a legally sufficient evidentiary basis for its verdict," U.S. Circuit Judge Michael B. Brennan wrote for the majority. "It is clear to us that the trial evidence fails to satisfy the necessary elements" to show county responsibility.

The decision is similar to one the Seventh Circuit made in a case involving the Milwaukee County Jail. In that case, too, the court found the county was not responsible for the acts of its employees when a guard repeatedly raped an inmate.

Brennan was joined in his opinion by U.S. Circuit Judge William J. Bauer. U.S. Circuit Judge Michael Y. Scudder Jr. dissented. 

"What worries me about today's decision is that, as a very practical matter, municipalities may conclude that there is not much to be done to stop a rogue guard from engaging in secretive and heinous conduct in violation of a bright-line policy prohibiting sexual contact with inmates," Scudder wrote. "That view would be as mistaken as it is dangerous, for cities and counties have a meaningful responsibility and role to play in preventing the sexual abuse of inmates in their custody by the guards they employ."

By Margo Kirchner

​A federal judge’s refusal to delay trial for two years so that “Coupon King” Thomas (Chris) Balsiger could be represented by a particular lawyer did not violate Balsiger’s right to counsel, a federal appeals court ruled last week.
 
The ruling means that the 10-year federal criminal case against Balsiger will not be retried.  The U.S. Court of Appeals for the Seventh Circuit affirmed the bulk of Balsiger’s conviction and sentence with the exception of a recalculated forfeiture amount.
 
Balsiger ran International Outsourcing Services, one of the nation’s largest product-coupon processors, in El Paso, Texas, and Bloomington, Indiana.
 
He and 10 others were indicted in 2007 on 25 counts of wire fraud, conspiracy to commit wire fraud, and conspiracy to obstruct justice. The fraud allegations involved coupon payments made by Wisconsin manufacturers Sargento Foods, Good Humor/Breyers Ice Cream, Kimberly-Clark, LeSaffre Yeast, and S.C. Johnson & Sons. The indictment alleged that the wire-fraud scheme caused $250 million in losses to manufacturers.
 
Pretrial proceedings dragged on for years. During that time, in July 2014, Balsiger’s lawyer, Joseph Sib Abraham, passed away.
 
U.S. District Judge Charles N. Clevert, Jr. was notified in August 2014, and a lawyer who worked with Abraham said Balsiger expected to hire new counsel within 30 days.  Yet by early December 2014 no new attorney had appeared in the case and Balsiger claimed he could not then hire a new attorney due to financial difficulties.
 
Clevert set trial for October 2015.
 
At a status conference in early January 2015 Balsiger told Clevert he planned to hire El Paso attorney Richard Esper, and asked for a deadline of April 1, 2015, to hire Esper. Balsiger said he did not have sufficient funds and could not sell his home because of a filing the government made against the property.
 
Clevert soon learned that Esper could not be ready for trial until 2017 at the earliest. The judge also found that Balsiger could afford to hire a lawyer and ordered him to hire someone by Feb. 17, 2015.
 
The court found that Balsiger was not working diligently to hire counsel and warned that failure to hire an attorney would be considered a waiver of the right to counsel.

By Margo Kirchner

Robert W. Huber Jr. spent 18 years too many in prison or on probation because of bureaucratic blunders and refusal to listen to his protests.
 
Now a federal appeals court has cleared the way for his civil rights lawsuit to proceed.
 
Huber is seeking damages for violations of his constitutional rights. U.S. District Judge J.P. Stadtmueller granted summary judgment to the defendants, holding that Wisconsin’s six-year statute of limitations barred most of Huber’s claims and that no reasonable jury could find in Huber’s favor on any remaining ones.
 
Huber appealed. On Monday, the Seventh Circuit Court of Appeals reversed, reinstated Huber’s claims, and remanded the case for further proceedings. The appellate court denied Huber’s request to reassign the case to a different district judge, however.
 
Huber pleaded guilty in 1988 in Milwaukee County Circuit Court to fraudulently using another man’s credit card for charges totaling $800. His sentence, originally a four-year probation term, turned into a 25-year odyssey of probation and prison.
 
First, an additional three years of probation were tacked on because Huber failed to pay restitution.
 
“With that extension, his sentence should have ended on November 3, 1995,” U.S. Circuit Judge Diane P. Wood wrote for the three-judge panel of the Seventh District Court of Appeals. “But it did not.”
 
Wood was joined in her opinion by U.S. Circuit Judges Joel M. Flaum and Frank H. Easterbrook.
 
First, in May 1993 and while still on paper, Huber stopped showing up for appointments with his probation agent. He was arrested in November 1994, but the state did not move to revoke his probation or to extend it. His agent even wrote that his discharge date was “11-3-95.” Later, in her last entry before Huber’s discharge date, the agent wrote, “no changes – all ok.”
 
“November 3 came and went without any action; no release, no modification of Huber’s probation, no formal extension,” Wood wrote. “Two weeks later, without any reference to her repeated notes acknowledging the November 3, 1995 release date, (Probation Agent Gloria) Anderson issued an apprehension request for Huber.”
 
Huber argued for years that his probation term expired on the November 3, 1995 date. But, he alleges, various probation officers and Wisconsin Department of Corrections (DOC) officials did little or nothing to investigate whether his probation was illegally extended. Not until October 2013 did officials determine that Huber was right.
 
Huber was arrested in January 1996, not terribly long after Anderson issued her apprehension request.
 
Anderson and her supervisor, Elizabeth Hartman, then told him that his probation had been suspended from May 1993 to November 1994 and he still had time to serve. They had him sign a form requesting reinstatement of his probation. Huber alleges that the form was blank at the time and changed later to make it appear that he admitted to absconding from probation.
 
Huber’s probation was extended to July 1998.
 
Another absconding led to more extensions, until in October 2000 Huber’s probation was revoked, resulting in a 10-year prison sentence for an $800 credit card fraud conviction that originally netted him four years of probation.

By Gretchen Schuldt

​Mark Fritz could not find a job as a teacher after the State Department of Public Instruction posted on its public website that he was "under investigation" for immoral conduct.

He couldn't find out what was in the report, which was submitted by the Racine Unified School District. DPI wouldn't tell him.

This went on for 17 months.

Then, shortly after he hired a lawyer and demanded a hearing, DPI cleared his name and removed it from public purgatory. 

And now the Seventh Circuit Court of Appeals has ruled that Fritz's due process rights were not violated.

In a concurrence, though, U.S. Circuit Judge David Hamilton suggested the state may face due process problems in the future. The public identification of a teacher under investigation for immoral conduct can render that teacher unemployable until the investigation is resolved, he said.

"If that’s correct, the teacher may well be entitled at least to notice of the charge being investigated and a name‐clearing hearing – and within a reasonable time," he wrote.

Fritz resigned from his teaching job in March 2012. He learned later that month, and only when he was turned down for another job, that DPI had listed him as "under investigation."

State law requires DPI to "post on the department's Internet site the name of the licensee who is under investigation" if a complaint is made against an individual.

"For the next 17 months, he was in legal limbo: he was practically un‐hirable, yet he was un‐ able to discover why he was under investigation, and had no idea when it might end," Hamilton wrote.

Wisconsin Administrative Code requires DPI to notify the person under investigation of the specific allegations and allow that person a chance to respond, he said.

"Fritz alleges here that he did not receive the required notice," Hamilton said. "As a result, Fritz was in limbo indefinitely and did not know why."

By Margo Kirchner​

A federal appeals court last week vacated a $10 million award to employees of Pewaukee’s Waterstone Mortgage Corporation for wage and hour violations because the claimants arbitrated as a group.
 
The Seventh Circuit Court of Appeals, citing the U.S. Supreme Court decision in another Wisconsin-based case involving Epic Systems, of Verona, held that a Waterstone employee’s employment agreement limiting arbitration to a single claimant does not violate the National Labor Relations Act’s protections.
 
Pamela Herrington sued Waterstone in U.S. District Court in Madison, asserting that the company failed to pay her minimum wages and overtime as required by the Fair Labor Standards Act (FLSA).  Under FLSA, claims may be brought as collective actions, meaning that other employees may opt in to the lawsuit.  Herrington filed her case as a collective action and 174 other Waterstone employees eventually joined her case.
 
Herrington’s employment agreement, however, contained an arbitration clause covering employment disputes.  The clause said Herrington’s arbitration could not be joined with or include any claims by others against Waterstone.
 
U.S. District Judge Barbara B. Crabb agreed with Herrington’s argument that any waiver of the right to join the claims of others was invalid under the National Labor Relations Act (NLRA), which protects the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
 
Crabb’s decision aligned with applicable law at the time. The National Labor Relations Board had determined that the right to engage in concerted activities for mutual aid or protection included the right to pursue collective or class claims. The Seventh Circuit later reached the same conclusion in a case involving Epic Systems.
 
As a result, Crabb struck the portion of the arbitration clause that waived collective or class action. She then sent the case to arbitration with instructions that Herrington be allowed to join other employees in her arbitration proceedings.  The arbitrator allowed other employees to opt in and, after further proceedings, awarded the claimants over $10 million in damages and fees.
 
Crabb then enforced the award through a court judgment, and Waterstone appealed to the Seventh Circuit.
 
While Waterstone’s appeal was pending, the U.S. Supreme Court overruled the Seventh Circuit’s decision in the Epic Systems case and held that an arbitration clause limiting arbitration to a single claimant does not violate the NLRA’s protection of concerted activities.
 
The Supreme Court’s decision meant the waiver in Herrington’s employment agreement was lawful and Crabb was wrong to strike it, the Seventh Circuit said in the Herrington case.
 
Herrington also argued the arbitration clause still allows for collective or class arbitration despite the waiver.
 
U.S. Circuit Judge Amy Coney Barrett, in the decision, called the argument “weak” and suggested it was “implausible,” but remanded the case to Crabb for a determination. Barrett was joined in her decision by U.S. Circuit Judges Amy J. St. Eve and William J. Bauer.
 
If Crabb agrees with Herrington, Crabb could confirm the $10 million award. If Crabb finds that Herrington’s arbitration is limited to her claims alone, the case could be sent back to arbitration for new proceedings.