EEOC Litigation Review – 2025

workers about Nevarez, which led to Nevarez confronting Banks in the lunchroom. The confrontation escalated when Nevarez followed Banks into the locker room, continued to use profanity, and punched a locker near Banks while shouting racial slurs. Banks reported the incident to the plant manager, Sue Cornelsen, who investigated the allegations. During the investigation, Cornelsen learned that multiple employees confirmed that Nevarez had used racial slurs. As a result of the incident, Nevarez received a five-day suspension and a “Final Written Warning,” while Banks was issued a “Written Warning” for using profanity during the confrontation, even though the warning was not intended as a disciplinary action. Id. at *5-6. The EEOC alleged that the defendant was aware of Nevarez’s prior racial harassment of Banks and another African-American employee but failed to take corrective action. The defendant filed a motion for summary judgment, arguing that the harassment was not severe or pervasive enough to create a hostile work environment and that Banks had not suffered a materially adverse employment action to support his retaliation claim. The court granted in part and denied in part the motion. The court stated that the EEOC’s evidence, particularly the severity of Nevarez’s behavior, which included racial slurs and physical intimidation, was sufficient for a reasonable jury to conclude that the work environment was hostile. The court also found that there were material factual disputes regarding whether the defendant knew or should have known about Nevarez’s prior racial harassment. For the retaliation claims, the EEOC argued that the Written Warning Notice was an adverse employment action in the context of retaliation. The defendant asserted that the notice was not disciplinary in nature, but rather coaching or counseling to address Banks’ behavior during the confrontation. The court concluded that even assuming Banks faced an adverse employment action, the defendant provided a legitimate explanation for the warning, i.e., Banks’ aggressive behavior during the altercation, which included profanity and threats. The court therefore granted the defendant’s motion for summary judgment of the retaliation claim. For these reasons, the court granted in part and denied in part the defendant’s motion for summary judgment. In EEOC v. Il Fornaio (America) LLC, 2024 U.S. Dist. LEXIS 43864 (C.D. Cal. Mar. 11, 2024), the EEOC’s initial complaint was dealt a rare defeat. There, the EEOC filed a lawsuit against the defendant Il Fornaio LLC, the owner and operator of Italian restaurants. The EEOC alleged that the charging party and similarly aggrieved employees were subjected to sexual harassment while employed by Il Fornaio by male supervisors. Il Fornaio moved to dismiss the EEOC’s complaint pursuant to Rule 12(b)(6) or, in the alternative, moved for a more definite statement under Rule 12(e). In support of its motion, Il Fornaio pointed to the fact that the EEOC had not provide information regarding the number of aggrieved employees, which of Il Fornaio’s 19 restaurants were involved, basic identifying information about any of the aggrieved employees, information regarding the alleged complaints, the identities of the co-workers and supervisors involved, and the timeframe in which the alleged harassment occurred. Accordingly, Il Fornaio argued that it was unable to respond to the complaint because the EEOC’s allegations were too vague and ambiguous. As to the EEOC’s first cause of action for hostile work environment under Title VII, the court noted all that is required to survive a motion to dismiss is for a party to satisfy Rule 8 and allege sufficient facts to state the elements of a hostile work environment claim, i.e ., plead that: (i) she was subjected to verbal or physical contact of a sexual nature; (ii) the conduct was unwelcome; and (iii) the abusive conduct was sufficiently severe or pervasive so as to alter the conditions of her employment thus creating an abusive work environment. The court found that the EEOC had adequately alleged a hostile work environment claim on behalf of the charging party. However, the court held that the EEOC’s complaint failed to put Il Fornaio on notice as to how the allegations applied to the aggrieved employees. The court noted that the EEOC’s complaint did not identify which of the alleged behaviors applied to the charging party and which applied to the aggrieved employees. In addition, the EEOC’s complaint failed to provide several categories of details, such as which of Il Fornaio’s locations were implicated, what roles the aggrieved employees held, where and to what extent the male co-workers worked, the approximate timeframes for when the aggrieved employees worked for Il Fornaio, and the approximate dates of complaints about the offending conduct. Most strikingly, the EEOC’s complaint failed to identify one other claimant, other than the charging party, even anonymously. The court held that these omissions, taken together, rendered the complaint deficient. As such, the court granted Il Fornaio’s motion to dismiss as to the EEOC’s claims as to the aggrieved employees’ hostile work environment, with leave to amend the deficiency. However, in doing so, the court also maintained that the lack of any one of the identifying factors was not dispositive and that requiring these details would result in a heightened pleading standard, which did not apply to these claims. In addition, the court examined whether the EEOC’s complaint pled sufficient facts to state a claim for retaliation under § 704 of the Civil Rights Act of 1964. The court concluded that the EEOC’s complaint failed to state a claim for retaliation because the complaint did not allege that the charging party and/or aggrieved employees engaged in a protected activity, a necessary element of the claim. Additionally, the court held that because the EEOC failed to

EEOC Litigation Review - 2025

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