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Judge criticizes AutoZone rehearing vote

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In a strongly worded dissent, the chief judge and two associate judges of the 7th U.S. Circuit Court of Appeals in Chicago have objected to the court’s refusal to reconsider its ruling in an AutoZone racial discrimination case en banc.

A three-judge 7th Circuit panel had upheld dismissal of U.S. Equal Employment Commission v. AutoZone Inc. and AutoZoners L.L.C. in June.

The case involved Kevin Stuckey, a black sales manager who accused Memphis, Tennessee-based auto parts retailer AutoZone of racial discrimination in violation of Title VII of the Civil Rights Act of 1964 because, he charged, he was transferred out of a store in an effort to make it predominantly Hispanic. The EEOC filed suit on Mr. Stuckey’s behalf.

The District Court in Chicago granted AutoZone summary judgment dismissing the case, which was unanimously affirmed by a three-judge appeals court panel that subsequently refused the EEOC’s petition for a rehearing.

When the issue was put up for a vote by the entire court, Chief Judge Diane P. Wood and associate judges Ilana D. Rovner and David F. Hamilton voted in favor of an en banc rehearing in the 5-3 vote.

In her dissenting opinion Nov. 21 arguing the case should have been reconsidered en banc, Judge Wood points to the U.S. Supreme Court’s landmark 1954 school segregation decision in Brown v. Board of Education.

“We can start with Brown to find support for the proposition that separate is inherently unequal, because deliberate racial segregation by its very nature has an adverse effect on the people subjected to it,” says the opinion.

In this case “we have a plausible allegation … that an employer is deliberately maintaining racially segregated workplaces. Such a practice is one that, at a minimum, tends to deprive a person of employment opportunities … and adversely affects his status as an employee by telling him that his job opportunities with this employer are limited by his race,” says the opinion.

“Because the panel’s opinion as I read it, endorses the erroneous view that ‘separate-but-equal’ workplaces are consistent with Title VII, I respectfully dissent from denial of rehearing en banc,” says Judge Wood.