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Third Circuit

Updated to March 3, 2017

Third Circuit

Capps v. Mondelez Global, LLC, No. 15-3839 (3d Cir. Jan. 3, 2017). Panel: RESTREPO, Fuentes, Shwartz. Claims On Appeal: ADA and N.J. state law termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome On Appeal: Affirmed [defendant]. Grounds: Assuming that plaintiff had a disability as defined by the ADA, that he was a qualified individual under the ADA, and that his request for intermittent FMLA leave also constituted a request for a reasonable accommodation under the ADA, record does not support a view that defendant discriminated against him under the ADA or refused to accommodate any such request. Defendant continued to approve his requested leave.

Karlo v. Pittsburgh Glass Works, LLC, No. 15-3435 (3d Cir. Jan. 10, 2017). Panel: SMITH, McKee, Restrepo. Claims On Appeal: ADEA disparate impact (termination). Disposition Below: Summary judgment [defendant]. Outcome On Appeal: Reversed [plaintiff]. Grounds: Notice of appeal that generally referred to "plaintiffs' was sufficient to serve as notice, under FRAP3, for all plaintiffs. "Subgroup" disparate-impact claims are cognizable under the ADEA. Provision of the ADEA that provides for disparate impact "makes it unlawful for an employer 'to adversely affect [an employee's] status . . . because of such individual's age.'" 29 U.S.C. § 623(a)(2). This language supports the viability of subgroup claims because of "(1) the focus on age as the relevant protected trait, as interpreted by O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), and (2) the focus on the rights of individuals, as interpreted by Connecticut v. Teal, 457 U.S. 440 (1982)." In particular, "evidence that a policy disfavors employees older than fifty is probative of the relevant statutory question: whether the policy creates a disparate impact 'because of such individual[s'] age.'" Moreover, because the right not to be discriminated against on the basis of age is a personal rather than collective one, the ADEA "protects individuals who are members of a protected class, not a class itself." Age "is a continuous variable," that "[t]he forty-and-older line established in § 631(a) does not convert age into a binary trait," and this circumstance requires a somewhat different statistical analysis from race and sex. "[S]tatistical techniques common in Title VII cases are not perfectly transferable to ADEA cases ... with the ADEA ... a comparison group that omits employees in their forties is fully capable of demonstrating disparate impact 'because of . . . age.' 29 U.S.C. § 623(a)(2)." Statutory construction comports with ADEA's "remedial purpose," because "[r]efusing to recognize subgroup claims would deny redress for significantly discriminatory policies that affect employees most in need of the ADEA's protection," i.e., the relatively older employees in the protected age group. Notes split in circuits (Lowe v. Commack Union Free Sch. Dist., 886 F.2d 1364 (2d Cir. 1989); Smith v. Tenn. Valley Auth., 924 F.2d 1059, 1991 WL 11271 (6th Cir. 1991) (table opinion); EEOC v. McDonnell Douglas Corp., 191 F.3d 948 (8th Cir. 1999)). On the Daubert exclusion of plaintiffs' statistical expert, Dr. Michael Campion, the panel holds that the district court abused its discretion by (1) citing a problem (the use of an incorrect dataset) that was in fact corrected by the plaintiffs; (2) finding that the expert "fail[ed] to perform a statistical adjustment" [the Bonferroni adjustment] that "simply diminish[ed] the weight of [the] expert's finding," rather than invalidate it; and (3) challenging the use of the 50-and-over subgroup, which the panel holds is acceptable. On all other matters, the panel affirms. It upholds the district court Daubert order striking Dr. Campion's expert testimony about alternative HR policies that PGW could have used. "When a defendant proffers a [reasonable factor other than age], the plaintiff can rebut it by showing that the factor relied upon is unreasonable, not by identifying twenty other practices that would have been reasonable instead." It also affirms the exclusion of an "implicit bias" expert on the ground that he "lacks fit to this case because his population-wide statistics have only speculative application to PGW and its decision-makers," and "disparate-impact claims do not inquire into the employer's state of mind." Finally, the panel finds no error in decertifying the collective, "determining that plaintiffs did not meet their burden to show that they are similarly situated" because plaintiffs "held seven different titles with varied job duties in two separate divisions of PGW and across five locations in which no less than six decision-makers independently included them in the RIF."

Connelly v. Lan Constr. Corp., 809 F.3d 780, 128 FEP 970 (3d Cir. 2016). Panel: JORDAN, Fisher, Chagares. Claims On Appeal: 1.Title VII and PA state law failure to rehire (sex). 2. Title VII and PA state law retaliation (sex). Disposition Below: 1. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. 2. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome On Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. While Title VII law - for proof purposes - separates the world into "mixed-motive" and "pretext" cases, there is no need for the employee to specify which method she intended to use to prove her claim in complaint. Boundary between these categories is porous, and that "[u]nder either theory of discrimination, the plaintiff must establish that her protected status was a factor in the employer's challenged action." The district court erred by analyzing the discrimination complaint solely under the pretext method of proof, despite that the Supreme Court held in Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (2002), that the prima facie case is "an evidentiary standard, not a pleading requirement." Some of the plaintiff's allegations might have been conclusory, and thus "disentitled to any presumption of truth" (example: that plaintiff's supervisors "subjected her to disparate treatment based on her gender and retaliation for making complaints about discrimination and sexual harassment"), yet the remaining factual allegations supported an inference of sex discrimination and retaliation: "(i) during her tenure at Lane, she was the only female truck driver at the Pittsburgh facility; (ii) she was qualified to drive all but one of Lane's trucks; (iii) Lane failed to rehire her at the start of the 2011 construction season, despite recalling the six other union truck-drivers - all male, and two with less union seniority than Connelly; and (iv) since failing to rehire Connelly, Lane has employed no other female truck drivers." Also, allegation that employer "apparently deviated from its own past hiring norms and work assignments during the 2011 construction season by employing rental trucks and allowing a less senior driver to operate the tack [asphalt distributor] truck." 2. District court erred by concluding - based on the length of time between plaintiff's complaints of harassment and layoff - that she could not prove causation. The "temporal proximity" argument (common in retaliation cases) surrenders novel facts of the case. "Given the seasonal character of Connelly's work, we question the District Court's conclusion about temporal proximity. Because Lane only hired Connelly during construction seasons, traditionally laying workers off in October or November and then rehiring them in March or April of the following year, it may be that a retaliatory decision to not rehire her would not become apparent until after the off-season that ran from October 2010 to March 2011." Additionally, plaintiff alleged facts which would show that plaintiff's relationship with her supervisors deteriorated from the very beginning, when she first went over their heads to corporate about unwanted propositioning by a co-worker. When she complained "directly to the Ethics Line, her relationship with both her supervisors and male co-workers became 'increasingly strained' throughout the year."

Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 128 FEP 776 (3d Cir. 2015). Panel: VAN ANTWERPEN, Fuentes, Shwartz. Claims On Appeal: ADEA and Pa. state law termination. Disposition Below: Summary judgment [defendant]. Outcome On Appeal: Affirmed [defendant]. Grounds: Plaintiff fails to establish prima facie case because there is no genuine dispute about whether employer treated similarly situated, substantially younger employees more favorably. Mere absence of disciplinary record of younger workers, and passing reference to retirement age, does not create inference. Regarding pretext, the nature and documentation of these disciplinary incidents (yelling, using offensive language, incomplete paperwork), and their acknowledgement by plaintiff, constituted legitimate, non-discriminatory reason. Argument that such behavior was commonplace not responsive to pretext, because it does not raise inference of age discrimination. Plaintiff unable to provide specifics to establish that other employee charged with "sarcasm" was in fact not disciplined, and if so, any reason why she was not disciplined. Argument that leadership was replacing experienced staff with inexperienced nurses inapt, because other nurses voluntarily left employment.

Faush v. Tuesday Morning, Inc., 808 F.3d 208, 128 FEP 469 (3d Cir. 2015). Panel: HARDIMAN, Greenaway, Krause. Claims On Appeal: 1. Title VII and Pa. state law harassment and termination. 2. § 1981 harassment and termination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome On Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Employee assigned by temporary agency to work at store under an "Agreement to Supply Temporary Employees" presented genuine dispute of material fact that he was an employee of store. Court rejects FLSA joint-employer standard. Applying Darden factors court holds that jury could find employment relationship. While agency set the temporary employees' pay rate; paid their wages, taxes, and social security; and maintained workers' compensation insurance on their behalf, store also bore responsibilities with respect to wage law compliance; also, payment made by store to agency were functionally indistinguishable from direct employee compensation. Store had ultimate control over whether employee was permitted to work at its store, and complete control over employee's activity while working at store (supervision, records-keeping of hours). Employees do not appear to be "contractors" in the sense that they had specialized skills. Store also made commitment to "provide a workplace free from discrimination and unfair labor practices" and to "comply with all applicable federal, state and local laws and regulations concerning employment, including but not limited to: wage and hour, breaks and meal period regulations, the hiring and discharge of employees, Title VII and the FLSA." Also cites EEOC guidance on temporary employees. 2. Plaintiff did not attempt to enter contract relationship with store where he was assigned.

Jones v. Southeastern Pennsylvania Transportation Authority (SEPTA), 796 F.3d 323, 127 FEP 1549 (3d Cir. 2015). Panel: HARDIMAN, Greenaway, Krause. Claims On Appeal: 1. Title VII, Pa. state law and Equal Protection suspension (sex). 2. Title VII, Pa. state law and Equal Protection harassment (sex). 3. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome On Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Suspension with pay was not an adverse employment action within the meaning of the employment discrimination laws. To the extent that claim is based upon subsequent suspension without pay and termination, claim defeated by final element of the prima facie case, the requirement of "some causal nexus" between her gender and her adverse treatment by employer. Constitutional claims waived because they were forfeited on appeal. 2. No quid pro quo harassment based on paid suspension, which is not a significant change in employment status. Employer entitled to Faragher-Ellerth defense, where employer took several steps in response to allegations of harassment: it conducted an investigation, made findings, developed a "plan of action," required alleged harasser to attend a counseling session, and gave him a demerit on his evaluation. Plaintiff failed to report alleged harassment for 10 years. 3. No genuine dispute about causation. No evidence supporting denial of wrongdoing (timesheet fraud), and even a showing that an employer incorrectly found an employee guilty of misconduct is insufficient to prove causation. Grievances about investigation of misconduct either unfounded or too petty to serve as evidence of retaliation. Resort to the cat's paw theory unavailing, where termination resulted from separate investigation that relied on forensic handwriting analysis (to determine if the signatures on timesheets were phony) and "email, computer, and building access records."

EEOC v. Allstate Ins. Co., 778 F.3d 444, 126 FEP 77, 31 A.D. Cases 381 (3d Cir. 2015). Panel: GREENBERG, Vanaskie, Cowen. Claims On Appeal: ADEA, Title VII and ADA retaliation. Disposition Below: Summary judgment [defendant]. Outcome On Appeal: Affirmed [defendant]. Grounds: Requiring departing employee to sign release as condition for continuing to work for company as an independent contractor not retaliatory. Rule that releases of claims are generally valid applies even when the relationship is changed rather than fully settled. Continued employment on contractor basis is valid consideration to support contract; terminated agents were not entitled to convert to independent contractor status. Refusing to sign a release is not opposition to unlawful discrimination. Also, no materially adverse action by denying an unearned benefit for refusal to release claim.

Daniels v. School Dist. of Philadelphia, 776 F.3d 181, 125 FEP 1465 (3d Cir. 2015). Panel: GREENBERG, Vanaskie, Cowen. Claims On Appeal: ADEA, Title VII and Pa. state law retaliation. Disposition Below: Summary judgment [defendant]. Outcome On Appeal: Affirmed [defendant]. Grounds: Complaints about being called a "grandparent" during a conference not a protected activity. Record does not show that employee complained about excessive monitoring. Employee did, nonetheless, engage in protected activity by complaining about hostile work environment because of age and filing of two Pennsylvania Human Rights Commission charges alleging age and race discrimination and retaliation. Plaintiff also claimed numerous adverse actions (designation of absences as without pay, hostile work environment, denial of wage continuation, termination). Summary judgment affirmed on ground that there was no evidence of a causal connection; no genuine dispute of material fact that the instigators of the adverse action were unaware of protected activity, or else the temporal proximity was too wide to support retaliation on its own. For other actions, there was no showing of pretext. Wage continuation was withdrawn because the employer established its belief that plaintiff was fit to return to work based on independent medical assessment.

Budhun v. Reading Hosp. and Medical Ctr., 765 F.3d 245, 30 A.D. Cases 811 (3d Cir. 2014). Panel: CHAGARES, Shwartz, Aldisert. Claims On Appeal: ADA "regarded as" claim. FMLA claim (not discussed here). Disposition Below: Denial of leave to amend complaint [defendant]. Outcome On Appeal: Affirmed [defendant]. Grounds: Employee's allegedly perceived injury, a broken bone, not a "disability" for purposes of "regarded as" claim under the ADA.

Hildebrand v. Allegheny Cty., 757 F.3d 99 (3d Cir. 2014). Panel:  VANASKIE, Greenaway, Roth. Claims On Appeal: ADEA and § 1983 termination. First Amendment claims (not discussed here). Disposition Below: Dismissal for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome On Appeal: Reversed [plaintiff]. Grounds: § 1983 not an alternative basis for pursing age discrimination claim against local government (noting split in circuits). Under ADEA, pleading of issue whether employee satisfied timely charge-filing requirement a "condition precedent" subject to FRCP9(c). Iqbal and Twombly do not apply to Rule 9. Intake questionnaire satisfied Holowecki definition of a charge for ADEA purposes; plaintiff checked box on intake form authorizing it to investigate allegations. District court affirmed, though, on dismissal of county as party, because it was not named as respondent.

Gonzalez v. Waterfront Com'n of New York Harbor, 755 F.3d 176, 123 FEP 498 (3d Cir. 2014). Panel:  SMITH, Rendell, Hardiman. Claims On Appeal: ADA and Title VII discipline. Disposition Below: Denial of preliminary injunction [defendant]. Outcome On Appeal: Affirmed [defendant]. Grounds: Conditions for Younger abstention met by disciplinary hearing where state commission investigated claim that plaintiff filed false statements.

Mariotti v. Mariotti Bldg. Prods, 714 F.3d 761, 118 FEP 224 (3d Cir. 2013). Panel: SMITH, Greenaway, Van Antwerpen. Claims On Appeal: Title VII termination (religion). Disposition Below: Dismissal for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Shareholder-director-officer of a closely-held corporation is not an "employee" under Title VII under test of Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003).

Covington v. Int'l Assoc. of Approved Basketball Officials, 710 F.3d 114, 117 FEP 925 (3d Cir. 2013): Panel: SLOVITER, McKee, Vanaskie. Claims On Appeal: Title VII and IX, and N.J. state law, discrimination (sex). Disposition Below: Dismissal for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Pattern or practice of high school basketball program to exclude female referees from boys' games constitutes a potential violation of the civil rights statutes. Athletic organization that assigns and pays officials, township that has input in decisions and also pays officials, and board that makes assignments and trains officials all proper defendants, but athletic conference and international organization not involved in payment or training were properly dismissed.

Burton v. Teleflex Inc., No. 11-3752 (3d Cir. Feb. 20, 2013): Panel: GREENAWAY, Ambro, O'Malley. Claims On Appeal: ADEA, Title VII (sex) and Pa. state law termination. State law contract and tort claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: Employee not required to tender evidence of discriminatory animus to survive summary judgment; opposition to summary judgment may focus instead on credibility of employer's proffered reason for adverse action. Genuine issue of material fact about whether employee was terminated, rather than resigned. No one from employer ever attempted to verify with employee whether she intended to resign, but merely sent her letter that said company "accepted [her] resignation." Company executive admitted that during key conversation, employee never actually said she was resigning. District court erroneously credited testimony of employer agents who said that employee declared she was resigning, while disregarding employee's contrary testimony. Other circumstantial evidence: Personnel file was not checkmarked as "resigned"; e-mail from executive to colleague asking for help to get employee to "play ball" with the company; contrary to claim that employee did not protest when she received the "resignation" letter, she hired lawyer; employee continued to work after purported "resignation."

Mandel v. M&Q Packaging Corp., 706 F.3d 157, 117 FEP 8 (3d Cir. 2013): Panel: ROTH, Greenaway, Tashima. Claims On Appeal: 1. Title VII retaliation. 2. Pa. state law discrimination. 3. Title VII harassment (sex). 4. Title VII constructive discharge. 5. Title VII discrimination (sex). Disposition Below: 1. Dismissal for failure to state a claim, FRCP 12(b)(6) [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. 5. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Reversed [plaintiff]. 4. Reversed [plaintiff]. 5. Affirmed [defendant]. Grounds: 1. Charge failed to alleged retaliatory conduct or check "retaliation" box on charge, so did not meet administrative prerequisites for claim. 2. Failure to file a state charge within 180 days made claim untimely. Although Pennsylvania is a deferral state, that extends the limitations period only on the EEOC charge, not the state filing. 3. District court erred in holding that harassment claim did not benefit from the continuing violation theory. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), overruled circuit standard that "permanence" of acts of harassment should have put the employee on notice of a need to assert her rights. Plaintiff alleged at least one act that falls within the statute of limitations (i.e. being called a "bitch" during a meeting), and many of the acts that occurred prior to the applicable limitations period involved similar conduct by the same individuals, suggesting a persistent, ongoing pattern. District court also erred in separating out the harassing events and evaluating them in isolation, i.e., "none of the alleged incidents is sufficiently severe to establish a hostile work environment." District court properly excluded evidence of two other alleged harassment victims, who were employed not by defendant, but defendant's parent company. District court erred by excluding acts of harassment that were identified in charge but which plaintiff did not testify about in deposition. Plaintiff presented genuine issue of material fact about whether comments were "invited"; even if she tolerated routine vulgarity or sexual comments, comments directed at her were often worse and uninvited. 4. Same activity that constituted a hostile work environment might also be held to be sufficiently intolerable that she was essentially forced to resign. 5. Plaintiff failed to establish that similarly-situated male employees received high wages or more vacation time.

EEOC v. Kronos Inc., 694 F.3d 351, 26 A.D. Cases 1409 (3d Cir. 2012). Panel: CHAGARES, Sloviter, Jordan. Claim on Appeal: Administrative subpoena. Disposition Below: Enforced with limitations [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court's restriction on testing information by third party to validation studies or evidence that Kronos "relied upon" in crafting assessment used by employer (Kroger Co.) violated mandate of prior decision (620 F.3d 287 (3d Cir. 2010)); EEOC entitled to examine documents not connected to Kroger that might reveal whether Kroger's use of same test had disparate impact. Limitation of subpoena to disability-related impact also violated mandate; EEOC slowed to search broader to see if test related to business necessity. While there is no requirement that employer do validity study for impact on disabled, EEOC could examine whether such studies were in fact done. That some of the testing might have related to race does not make it off-limits. District court did not err in granting confidentiality order, but paragraph that required EEOC to inform Kronos of any FOIA request, and to treat all documents produced as trade secrets/commercial information was invalid, because it would prevent EEOC from carrying out its FOIA duties to examine materials. Restriction on use of material to investigation of single charge invalid. EEOC permitted to proceed on other illegal activities by different employers if discovered in subpoenaed documents. Cost shifting order vacated for reconsideration in light of revisions to scope of subpoena.

NAACP v. North Hudson Regional Fire & Rescue, 665 F.3d 464, 113 FEP 1633 (3d Cir. 2011). Panel:HARDIMAN, Fisher, Greenaway, Jr. Claim on Appeal: Title VII disparate impact hiring (race). Disposition Below: Summary judgment for plaintiff [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Affirming liability for residency requirement for firefighters. Plaintiffs' expert properly identified both the relevant labor market and qualified population of applicants. Only two (0.62%) of hires were African-American, against a population of 3.4% and workforce of persons in protective services within a reasonable commute of 37.4%. Analysis of full-time protective service employees was not ideal, because it was somewhat over-inclusive, but as nearly as possible approximated the relevant pool. Defendant's expert, far from creating a genuine issue of material fact, actually corroborated the causal link between the residency requirement and the underemployment of blacks. No legal error in finding absence of genuine issue of material fact on prima facie case. Court rejects the employer's proffered business-necessity justifications that the residency requirement "(1) increases the likelihood that its firefighters will be able to respond to emergencies more quickly because they will be more familiar with the buildings and streets in the served community; (2) comports with the terms of the Rodriguez Settlement; (3) increases the number of Spanish-speaking firefighters in a department that serves a 69% Hispanic population; and (4) fosters community pride." As to each, the panel holds there was no empirical support, there were lesser-discriminatory means to achieve the goals or that the justification was simply insufficient. Court rejects a Ricci defense by the defendant and Latino intervenors, i.e., "a 'strong basis in evidence' to believe that failing to engage in the discriminatory action being challenged would lead to disparate impact liability." While in Ricci the city had already committed itself to the firefighter exam results (which led to an impact against minorities), here "North Hudson's only action is the use of its Residents-Only List, which has been demonstrated to cause a disparate impact in violation of Title VII. It has taken no steps to eliminate the residency requirement or otherwise adjust its policies to reduce the adverse effect." Overrules objection to injunction against a Residents-Only list that it will disadvantage Latino residents.

Meditz v. City of Newark, 658 F.3d 364, 113 FEP 727 (3d Cir. 2011). Panel: GREENAWAY, Sloviter, Roth. Claim on Appeal: Title VII disparate impact hiring (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in determining correct labor market to use for statistical comparison purposes. Plaintiff compared the racial composition of Newark's city employee population to those of the general population of the city and "the ethnic composition of government employees and the private labor force in each of the surrounding [six] counties." District court held that there was no need to range beyond the city limits of Newark to locate the appropriate labor market, provided that the city hired some number of white employees (i.e. that the number of protected-group employees was not a virtual zero). But district court had an obligation to "conduct a complete and correct statistical analysis, comparing the makeup of Newark's non-uniformed labor force with the similarly skilled labor force in the relevant labor market." District court also erred in holding, without explanation, that the statistics did not establish a significant disparity - despite that the statistical analysis revealed a difference of slightly over six standard deviations (courts generally finding two to three standard deviations to be enough); difference between the percentage of white, non-Hispanics employed by the city (9.24%) compared to the percentage of white, non-Hispanics living in the city (14.2%). District court also erred in analysis of "business necessity" defense by applying a weaker, pre-1991 Act standard to the analysis. " . . . Newark provides scant support or explanation for its proffered business necessities. On remand, if the District Court reaches the question of business necessity, it should analyze the evidence offered by Newark in support of its position, and not simply conclude that '[t]his Court is satisfied that Defendant has objectively demonstrated a nexus between its residency ordinance and its employment goals.'"

McKenna v. City of Philadelphia, 649 F.3d 171, 112 FEP 1799 (3d Cir. 2011). Panel: SLOVITER, Fuentes, Vanaskie. Claim on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury verdict (three plaintiffs, awarded $2 million, $3 million and $5 million in compensatory damages, each capped at $300,000, plus back pay) [plaintiffs]. Outcome on Appeal: Affirmed [plaintiffs]. Grounds: No error in jury charge on causation. Even in light of Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), commanding officer's decision to prefer charges against officers who complained about racial discrimination was proximate cause of their termination, notwithstanding intervening hearing.

Noel v. The Boeing Co., 622 F.3d 266, 110 FEP 609 (3d Cir. 2010). Panel: FUENTES, Fisher, Kane. Claims of Appeal: Title VII promotion (race, national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Lilly Ledbetter Fair Pay Act did not rescue time-barred claim of failure to promote; promotion is not "discrimination in compensation." Failure to promote, while ultimately causing employee not to earn as much, does not relate to pay. Although statute includes catch-all for "other practices," in the context of the statutes, such practices must nevertheless relate to pay disparity. Statute did not overrule Morgan precedent.

EEOC v. Kronos, Inc., 616 F.3d 265, 109 FEP 1633 (3d Cir. 2010). Panel: CHAGARES, Stapleton. Claims of Appeal: EEOC adminstrative action. Disposition Below: Order limiting subpoena [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Decision to limit request only to bagger, stocker and cashier/checker titles; only to West Virginia; to one subsidiary (Kroger); and only back to 1/1/2006 was abuse of discretion. Agency's investigation not limited by the actual scope of the charge, nor do charges necessarily have to set forth legal theories (here, disparate impact vs. treatment). Nevertheless, employee's ADA charge did not support investigation into racial disparate impact. District court failed to support confidentiality order with specific rationale supported by good-faith balancing. Order also ran afoul of Federal Record Disposal Act, by requiring agency to destroy documents turned over to it during investigation.

EEOC v. Geo Group, Inc., 616 F.3d 265, 109 FEP 1633 (3d Cir. 2010). Panel: SLOVITER, Roth [TASHIMA, dissenting]. Claims of Appeal: Title VII reasonable accommodation (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Contractor that operated prison did not violate Title VII by banning Muslim women from wearing khimars under general policy banning head coverings. No genuine issue of material fact that prison wardens reasonably believed that khimars posed an undue burden as a safety hazard (they could be used by prisoners to choke employees) and a security risk (because they inhibited identification of the wearer and could facilitate smuggling of contraband). Panel does not rule on alternative basis that the policy also aimed to reinforce uniform appearance. The EEOC's expert witness did not present a genuine issue of material fact on the issue of undue burden, as his report did not give weight to the wide discretion that courts are supposed to accord to correctional decisionmakers.

Nino v. Jewelry Exchange, Inc., 609 F.3d 191, 109 FEP 769 (3d Cir. 2010). Panel: FUENTES, McKee, Nygaard. Claims of Appeal: Title VII suspension and constructive discharge (gender, national origin). Disposition Below: Arbitration compelled [defendant]. Outcome on Appeal: Reversed [plaintff]. Grounds: Rejecting as unconscionable an arbitration contract that provided, inter alia, that the employer was allowed two strikes on the arbitration panel to the employees' one strike, setting a five-day limitations period on claims, and requiring the parties to bear their own fees and expenses (barring statutory fee-shifting). The district court concluded that agreement was substantively and procedurally unconscionable under Virgin Islands law . While affirming that aspect of the order below, the panel reverses in holding that the unconscionable parts of the agreement were severable, because they collectively and impermissibly oriented the agreement against the employees' substantive rights. Panel also reversed the district court's holding that the employer preserved its right to arbitrate simply by asserting it as an affirmative defense in its answer; employer held to have waived arbitration by waiting fifteen months to assert the right to arbitrate; engaging in significant discovery and motion practice; and assenting to various pre-trial orders.

Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 109 FEP 367 (3d Cir. 2010). Panel: GREENBERG, McKee, Barry. Claims of Appeal: § 1981 retaliation. § 1983(3), state law and First Amendment claims (nor discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assuming that plaintiff was engaged in protected activities when he complained about alleged incidents of racial profiling, he either failed to establish a prima facie case or to overcome the legitimate, non-discriminatory reasons asserted by defendants. Two transfers did not constitute materially adverse action, involving only a 4.25 mile greater commute, and could not have been motivated by retaliation where decisionmakers were unaware of the racial profiling complaint. Transfers were also motivated by broader policies regarding the assignment of new recruits and to fill vacancies. Another transfer was motivated by the commanding officer's desire not to establish a precedent that any trooper could transfer to any station that he or she desired. Initiating investigation against plaintiff for falsifying police reports and being present at illegal stops, while materially adverse, was supported by legitimate, law enforcement purposes. Compelling officer to return to work on full duty, in spite of doctor's recommendation that he not return to work, supported by legitimate, non-discriminatory reason (independent investigation of officer's fitness). Seven individual defendants also dismissed on ground that they were not shown to have been aware of the officer's protected activity.

Sulima v. Defense Support Services, LLC, 602 F.3d 177, 23 A.D. Cases 27 (3d Cir. 2010). Panel: RENDELL, Jordan, Pratter. Claim on Appeal: ADA termination and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: While concurring with Seventh Circuit and other courts that the side effects from medical treatment may themselves constitute an impairment under the ADA, this principle is limited to medications or course of treatment required in the "prudent judgment of the medical profession," and where there is no available alternative that is equally efficacious without similarly disabling side effects. in this case, medication that employee used to reduce weight and relieve sleep apnea was an over-the-counter prescription. Here, after being confronted by his employer regarding his frequent long bathroom breaks, plaintiff contacted his doctor who recommended that plaintiff stop taking the medication that was causing the side effects. In his deposition, Also, there was no evidence in the record to show that the specific medications causing the side effects were, in the judgment of the medical profession, the only efficacious medications for plaintiff's condition. Employer also did not regard plaintiff as disabled; plaintiff clearly specified to employer that his problems were a result of a side effect from medication he was taking, and indicated that he could get his medication changed. Plaintiff, for same reasons as above, lacked good faith basis for believing that the employer violated ADA.

Colwell v. Rite Aid of Pennsylvania, Inc., 602 F.3d 495, 22 A.D. Cases 1857 (3d Cir. 2010). Panel: SLOVITER, Jordan, Weis. Claim on Appeal: 1. ADEA, ADA and Pa. law retaliation and constructive discharge. 2. ADA and Pa. law reasonable accommodation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. While an employer denying a reasonable accommodation can also constitute constructive discharge, here there was no genuine issue of material fact that the employee failed to take all measures to appeal denial of accommodation before resigning. Moreover, none of the supposedly adverse acts were connected to a retaliatory motive. 2. Employee presented genuine issue of material fact on the following issues: (1) whether she was significantly limited in the major life activity of seeing, where (because of glaucoma) she lacked depth perception, could not see in one eye, and it was dangerous for her to be out at nighttime; (2) whether employer breached its duty to provide reasonable accommodations. "[A]s a matter of law [] changing Colwell's working schedule to day shifts in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates." Court cites 42 U.S.C. § 12111(9)(B), which endorses "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." In particular, commuting to work under certain circumstances may have to be accommodated, if reasonable, such as where "the requested accommodation is a change to a workplace condition that is entirely within an employer's control and that would allow the employee to get to work and perform her job. See 29 C.F.R. § 1630.2(o)(1)(ii)-(iii)." Genuine issue of material fact whether employer failed to carry out the interactive process, where plaintiff told manager that she could not always count on her grandson to drive her to work, and that such a solution was only a temporary one. Plaintiff also had a union representative contact manager to seek a change in plaintiff's shifts but she flatly refused all overtures to obtain an accommodation.

El-Ganayni v. U.S. Dept. of Energy, 591 F.3d 176, 108 FEP 100 (3d Cir. 2010). Panel: SMITH, Fisher, Stapleton. Claim on Appeal: Fifth Amendment due process (religious discrimination). First Amendment and APA [not discussed here]. Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although district court erred in holding that it lacked subject-matter jurisdiction over claim that agency revoked security clearance for discriminatory and retaliatory reasons, its review of the claim is circumscribed by the constitutional separation-of-powers doctrine that bars judicial review of the merits of a revocation decision. Accordingly, the plaintiff failed to state a claim. It would require discovery of DOE officials and documents concerning the various "factors" that led to the decision to revoke the clearance, and scrutiny of those factors to determine which were "substantial" or "motivating."

Smith v. City of Allentown, 589 F.3d 684, 108 FEP 18 (3d Cir. 2009). Panel: JORDAN, Scirica, Cowen. Claim on Appeal: ADEA termination. First Amendment [not discussed here]. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009), did not supersede McDonnell Douglas in ADEA cases. employee failed to present a genuine issue of material fact on pretext. According to record, plaintiff exhibited performance problems as early as 2002, when director of community and economic development, noted complaints that plaintiff and two other directors had neglected to maintain the City's swimming pools; plaintiff failed to accomplish 2004 performance goals; and in 2006 review, he was found deficient in managing the golf course, youth sports, and the annual Halloween parade.

Elkadrawy v. Vanguard Group, Inc., 584 F.3d 169, 107 FEP 673 (3d Cir. Oct. 6, 2009). Panel: BARRY, Fisher, Jordan. Claim on Appeal: § 1981 and Pa. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Dismissal of prior Title VII and ADEA action on limitations grounds (for failure to file within 90 days of receipt of right to sue) was claim preclusive of new suit filed under § 1981 and state law.

Erdman v. Nationwide Ins. Co., 582 F.3d 500, 22 A.D. Cases 669 (3d Cir. 2009). Panel: HARDIMAN, Scirica, Fuentes. Claim on Appeal: ADA association termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No obligation under ADA association, 42 U.S.C. § 12112(b)(4), to accommodate employee who "associates" with disabled person and is not herself disabled. Although employer may not take adverse action on basis of unfounded stereotype or assumption about the need to take care of disabled family member, employer may (as in this case) terminate - without violating this section of the ADA - for actually demanding time off to provide care for disabled child with Down Syndrome.

Brown v. J. Kaz, Inc., 581 F.3d 175, 107 FEP 229 (3d Cir. 2009). Panel: SLOVITER, Ambro [JORDAN, concurring]. Claim on Appeal: 1. Title VII and Pa. state law hiring (race). 2. § 1981 hiring. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff, who was turned down as sales representative, failed to prove as a matter of law that the position she interviewed for was "employee." Evidence that position was independent contractor included authority to set own appointments, script own sales pitch, provide own equipment and office space, and obligation to pay for own supplies and insurance, and pay own taxes. 2. "Independent contractor" relationship still covered by § 1981.Record of case supported "mixed-motive" approach of Price Waterhouse. Hiring manager supposedly refused to shake hands and said "Well, you ain't nothing but the N word" and said if he had anything to do with it, plaintiff would no longer be permitted to work for the defendant. There was also a genuine issue of material fact whether, with the burden shifted against it, employer could meet burden of proving that contract would have been terminated irrespective of race, as evidence was equivocal about who provided adverse information to company about plaintiff and when the company first learned about it. (Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009) did not require court to depart from mixed-motive approach under § 1981).

Mikula v. Allegheny Co., 583 F.3d 181, 107 FEP 238 (3d Cir. 2009). Panel: Per Curiam (Barry, Garth, Smith). Claim on Appeal: Title VII compensation (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Remanding in light of Lilly Ledbetter Fair Pay Act; employer's failure to respond to a request for a raise qualifies as a compensation claim, but receiving negative result to internal investigation of gender discrimination complaint not a separate act of discrimination.

Donlin v. Philips Lighting No. America Corp., 581 F.3d 73, 107 FEP 296 (3d Cir. 2009). Panel: HARDIMAN, Scirica, Fuentes. Claim on Appeal: Title VII hiring (sex). Disposition Below: Judgment after a jury trial ($63,050 back pay, $101,800 front pay for ten year period, compensatory damages, $75,818 fees/costs) [plaintiff]. Outcome on Appeal: Affirmed on liability, remanded for new trial on remedy [plaintiff]. Grounds: Employer challenged the description of its reason for terminating in the jury charge, arguing that judge erroneously instructed that defendant had based its decision "on her record of attendance, production, and accuracy," even though it claimed that it had never cited accuracy as a basis. Panel affirms that the charge accurately instructed the jury on the defense. The panel also affirms the decision, on employee's cross-appeal, not to submit punitive damages to the jury, finding insufficient evidence of malice. On remedy, court holds that district court erred under FRE 701 in allowing plaintiff to provide specialized or technical testimony regarding her back and front pay damages. With regard to front pay, employee detailed the number of years she intended to work and the annual salary differential between Philips and the other companies where she was employed. Employee also estimated her future pension value, performed a probability of death calculation, and reduced her front pay award to its present value. In 2000, Rule 701 was amended expressly to require that lay opinion evidence "not [be] based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Generally speaking, non-expert testimony "requiring future projections of a business or operation [should] come from someone who has intimate and thorough knowledge of the business gathered from either a lengthy tenure or a position of authority." Thus, a long-tenured employee could offer a lay opinion based on an "in-depth knowledge of the company's salary structure, advancement opportunities, pay raises, or employment patterns." The court holds that it was abuse of discretion to admit testimony of plaintiff, who was a temp for less than a year and lacked sufficient personal knowledge. (The panel questions -- in light of the 2000 amendment -- the vitality of a prior decision, Paolella v. Browning-Ferris, Inc., 158 F.3d 183 (3d Cir. 1998), sanctioning such testimony.) For purposes of remand for new trial (if a new trial turns out to be necessary to develop the record), it affirms district court's analysis that the plaintiff's re-employment, eight months later, did not vitiate her eligiblity for make-whole relief. It also upholds lower court's discretion to award up to ten years' worth of front pay. Employee's duty to mitigate -- reducing damages for "interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against," 42 U.S.C. § 2000e-5(g)(1) -- did not preclude the employee from seeking different, though lower-paying employment, especially where increased cost of commute to higher paying empployer into her overall compensation. Finally, the panel holds that the plaintiff's comparator, a male with fifteen years' experience, was an appropriate basis of comparison for calculating make-whole relief. "Although Matusick was long-tenured, the record evidence shows that Philips did not increase its employees' salaries based on seniority. Additionally, there was evidence that Donlin and Matusick worked the same shift and worked similar amounts of overtime, both of which were key factors affecting compensation."

Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 107 FEP 1 (3d Cir. 2009). Panel: HARDIMAN, Fisher, Chagares. Claim on Appeal: 1. Title VII and Pa. state law harassment and retaliation (sex stereotyping). 2. Title VII and Pa. state law harassment and retaliation (religion). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Although Title VII does not protect against discrimination based on sexual orientation, employee presented genuine issue of material fact under Price Waterhouse that harassment was motivated by his failure to adhere to masculine behavior (co-workers called him names like "Princess" and "Rosebud," derided his looks, labelled him a "faggot," and left behind ugly notes and graffiti). Sex stereotyping claim is not limited to, or coextensive with, a claim of sexual orientation harassment.2. Religious harassment claim is based entirely upon his status as a gay man (i.e., Christian co-workers called him a "sinner" told he would burn in hell and asked if he'd "come clean with [his] maker"), thus not covered by Title VII.

Fowler v. UPMC Shadyside, 578 F.3d 203, 22 A.D. Cases 353 (3d Cir. 2009). Panel: NYGAARD, Fuentes, Jordan. Claim on Appeal: Rehabilitation Act failure to transfer. Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff] The "plausibility" pleading standard of Ashcroft v. Iqbal, 129 S. Ct. 1955 (2009), applies to employment discrimination cases and supercedes Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). Nevertheless, the panel in this case holds that the district court was premature in dismissing the complaint, which was specific enough to establish discrimination on account of disability. Panel holds that failure-to-transfer claims have a four-year limitations period. The act does not have a general limitations period and so borrows the state-law (here, Pennsylvania) personal injury period of two years. Though the Rehabilitation Act has generally been in existence since 1973, Congress expanded the scope of the act in 1992 by incorporating the ADA standards of liability (29 U.S.C. §794(d)). Thus, for claims that did not exist under the Rehabilitation Act until that amendment (such as the failure-to-transfer claim here), the four-year catch-all period of 28 U.S.C. § 1658 applies instead.

Hohider v. United Parcel Service, Inc., 574 F.3d 169, 22 AD 133 (3d Cir. 2009). Panel: SCIRICA, O'Connor, Rendell. Claim on Appeal: ADA failure to rehire). Disposition Below: Class certification granted [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: The plaintiffs challenged on class-wide basis what they called a "100% healed" policy -- that defendant would not allow employees returning from disability leave to resume their jobs without unconditional release from any medical restrictions. Additionally, the plaintiffs challenged company's systemic failure to engage in any interactive process with persons with disabilities returning to the workplace. Class certification must be denied on account of lack of commonality. Panel rejects application of a method of proof from Title VII -- the Teamsters/Franks pattern-or-practice framework -- to the ADA arena. Establishing unlawful discrimination alleged by plaintiffs would require determining whether class members are "qualified" under the ADA, an assessment that encompasses inquiries too individualized and divergent with respect to this class to warrant certification. Even if confined to subclasses of particular jobs, individual assessments would be required. Monetary relief would also predominate proposed class, making it unfit for Rule 23(b)(2) certification. Court rejects use of Rule 23(c)(4) authority to sever monetary relief from action, or certification of conditional class for back pay.

Huston v. The Proctor & Gamble Paper Products Co., 568 F.3d 100, 106 FEP 746 (3d Cir. 2009). Panel: SMITH, Rendell, Fisher. Claim on Appeal: Title VII and Pa. state law harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: In co-worker harssment case, two employees to whom plaintiff sought to impute knowledge of harassment to employer were not in "management," Citing Restatement (Third) of Agency § 5.03 (2006), the court holds that "there are two parameters limiting when knowledge of facts known by an agent is imputed to the principal: the agent's duties to the principal; and the materiality -- or significance -- of the facts in question to those duties." Thus, to impute an executive's knowledge to the employer, the executive must be "sufficiently senior in the employer's governing hierarchy, or otherwise in a position of administrative responsibility over employees under him, such as a departmental or plant manager, so that such knowledge is important to the employee's general managerial duties." Here, employees identified by plaintiff were technicians with some oversight authority but not managers. Technicians were paid hourly wages and did not have the authority to hire, discipline, and discharge.

Webb v. City of Philadelphia, 562 F.3d 256, 105 FEP 1665 (3d Cir. 2009). Panel: SCIRICA, McGee, Smith. Claim on Appeal: Title VII religious accommodation and sex discrimination. Disposition Below: Summary judgment [defendant]]. Outcome on Appeal: Affirmed [defendant]. Grounds: Police officer's request to wear hijaab at work was denied under Department Directive 78, which prescribes the approved uniform for police. The Directive did not authorize the wearing of any religious clothing, insignia or coverings. Requiring department to make exception for one officer would pose undue hardship. City presented record that essential values of impartiality, religious neutrality, uniformity, and the subordination of personal preference were at stake. Employee waived constitutional claims by not raising them below, and failed to file a Title VII sex discrimination charge to preserve her claim.

Eshelman v. Agere Systems, Inc., 554 F.3d 426, 21 A.D. Cases 865 (3d Cir. 2009). Panel: HARDIMAN, Chagares, Ellis. Claim on Appeal: ADA and Pa. state law "regarded as" disabled/"record of" disability termination. Disposition Below: Judgment after a jury trial ($200,000 back pay and compensatory damages, and gross-up for paying taxes in lump sum) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Defendant altered score of employee (who suffered memory problems because of chemotherapy treatments) that led to her being terminated in a reduction in force. Jury had sufficient evidence to conclude that employer was liable for disability discrimination. Record included sufficient evidence that it "regarded" the employee as substantially limited in the major life activities of work and thinking; although employer expressly regarded her as limited in the lesser-activity of "driving," jury could just as easily have inferred that manager's concerns were broader, extending to employee's ability to perform any job at company following the planned restructuring. Although employer argues that there was no "record" of disability, as defined by the ADA -- because the employee's absence from work was at most temporary - court holds that employee's "actual period away from work was not the beginning, nor the end, of the evidence the jury heard regarding her record of impairment." The trial record included testimony that her supervisors were specifically aware of plaintiff's chemotherapy-related memory problems, which were duly noted in her the employer's medical department's files. "Paired with Eshelman's six-month absence and Agere's knowledge of her condition, this cognitive dysfunction permitted the jury to conclude that Eshelman had demonstrated a record of impairment that substantially limited her ability to think and work." Panel affirms jury instruction on the issue of whether company furnished reasonable accommodations to plaintiff. It was within a district court's equitable power to award a prevailing plaintiff enough money to cover the higher taxes that result from receiving a lump sum back pay award in a given year (noting split in the circuits).

McGovern v. City of Philadelphia, 554 F.3d 114, 105 FEP 481 (3d Cir. 2009). Panel: HARDIMAN, Fisher, Greenburg. Claim on Appeal: § 1981 termination. Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]]. Outcome on Appeal: Affirmed [defendant]. Grounds: Section 1981 does not provide an alternative claim for relief against local government (noting split in circuits).

Haybarger v. Lawrence County Adult Probation and Parole, 551 F.3d 193, 21 A.D. Cases 577 (3d Cir. 2008). Panel: HARDIMAN, Fisher, Chagares. Claim on Appeal: Rehabilitation Act termination. Disposition Below: Summary judgment denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Division of state court system waived Eleventh Amendment immunity by operation of 42 U.S.C. § 2000d-7 by accepting federal funds to operate child-support collection program, despite that employee worked in a different unit. Under state law, entire division of court was a single unit.

Lombardo v. Commonwealth of Pennsylvania, 540 F.3d 190, 104 FEP 259 (3d Cir. 2008). Panel: CHAGARES, Sloviter, Hardiman. Claim on Appeal: ADEA and Pa. state law promotion. Disposition Below: Fed. R. Civ. P. 12(b)(1) motion to dismiss denied[plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Although state waived Eleventh Amendment immunity from suit in federal court by removing state court case, it did not waive immunity from liability on the grounds of sovereign immunity. Sovereign immunity is governed by state law, and Pennsylvania did not waive its immunity from tort claims for damages under that state's laws.

Makky v. Chertoff, 541 F.3d 205, 103 FEP 1665 (3d Cir. 2008). Panel: SLOVITER, Barry, Roth. Claim on Appeal: Title VII suspension (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: A plaintiff's prima facie case in a mixed motive Title VII employment discrimination action fails if it is irrefutable that plaintiff does not meet a necessary objective qualification for the job. Employee who could not get security clearance for TSA position was not qualified for position.

Doe v. C.A.R.S. Protection Plus Inc., 527 F.3d 358, 103 FEP 577 (3d Cir. 2008). Panel: NYGAARD, Rendell, McClure. Claim on Appeal: Pregnancy Discrimination Act termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Elective abortion is a "related medical condition" to pregnancy, and so discrimination against an employee who had an abortion is covered by statute (relying on Sixth circuit case, regulation and legislative history). Employee presented prima facie case, showing that other individuals who had to take short periods off work were not fired. Disputed issue of fact whether employer had policy that employee had to call in every day they were going to miss work. Despite that different supervisors managed the different employees, record established that only one employee made the decisions to approve sick leave. Additional evidence of animus included statement of manager that employee "did not want to take responsibility" (referring to the secrecy surrounding the loss of the baby) and termination occurred three working days after manager learned that employee had an abortion. Genuine issue of material fact whether reason given (job abandonment) was pretext, where there is an unresolved dispute over whether husband had called in for the employee the day that she missed. Use of pseudonym and sealing of csse record not an abuse of discretion.

Holender v. Mutual Industries North Inc., 527 F.3d 352, 103 FEP 712 (3d Cir. 2008). Panel: AMBRO, McKee, Aldisert. Claim on Appeal: ADEA hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Following Federal Express Corp. v. Holowecki, 128 S. Ct. 1147 (2008), employee's filing with the EEOC which failed to check box that stated that he wished to file the paper, but otherwise contained relevant information, served as a charge even though the EEOC belatedly sent a letter requesting that the employee follow up with a questionnaire. Holowecki overturned prior case law in the circuit requiring that the paper express a "manifest intent" to be treated as a charge. Absence of specific relief language and fact that it was filed by counsel (instead of pro se) not determinative.

Wilkerson v. New Media Technology Charter School, 522 F.3d 315, 102 FEP 1793 (3d Cir. 2008): Panel: SLOVITER, Smith [Stapleton, concurring in part, dissenting in part]. Claims On Appeal: 1. Title VII and Pa. state law religious accommodation. 2. Title VII and Pa. state law termination (religion). 3. Title VII and Pa. state law retaliation. 4. Pa. state law aiding and abetting. Disposition Below: 1. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 2. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 3. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 4. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. 4. Reversed [plaintiff]. Grounds: 1. Employee who, according to her own complaint, did not ask to be excused from "libation ceremony" at annual school banquet did not request to be accommodated. 2. Christian employee alleged that she attended a work banquet where employees performed a "libation ceremony." Court held that at the pleadings stage -- as recently refashioned by Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) -- the plaintiff made a plausible if unlikely case that she was singled out for complaining about the event and later not being renewed in her contract: "In ruling on a motion to dismiss, the court is not free to question whether there was in fact ancestor worship at a public school banquet in a school that ostensibly focuses on digital multimedia and project based learning. . . . Wilkerson's complaints following the ceremony were based on her religious beliefs, and therefore, as we noted earlier, could be read to allege that her termination was based on her religious beliefs, a violation of Title VII." Termination of "at-will" employment, by non-renewal of a contract, is an adverse action under Title VII. 3. Retaliation claim survives because employee could have manifested a reasonable belief that refusal to participate in "libation ceremony" during school banquet was protected activity. 4. District court erred in concluding that non-renewal of contract was not adverse action.

Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 20 A.D. Cases 100 (3d Cir. 2007). Panel: ROTH, Fisher, Jordan. Claims On Appeal: NJ disability discrimination. FMLA and NJ state law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in holding that employee, under state law, was required to present expert medical testimony to establish existence of disability.

Francis v. Mineta, 505 F.3d 266, 101 FEP 1217 (3d Cir. 2007). Panel: McKEE, Barry [STAPLETON, concurring]. Claims On Appeal: Religious Freedom Restoration Act 42 U.S.C. § 2000bb-1 claim . Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee objected to work rule that would require him to cut dreadlocks. District court erred in finding that it lacked subject matter jurisdiction over claim, because it was within federalquestion jurisdiction, panel affirms on alternative ground that employee failed to state a claim under the statute. Title VII provides exclusive remedy for federal employee claims of religious discrimination.

LeBoon v. Lancaster Jewish Community Center Assoc., 503 F.3d 217, 101 FEP 1040 (3d Cir. 2007). Panel: ROTH, Chagares [RENDELL, dissenting]. Claims on Appeal: 1. Title VII discrimination (religion). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. JCC was exempt as "religious corporation, association, educational institution, or society" under 42 U.S.C. § 2000e-1(a) because of Jewish management, practice, and character of organization, not withstanding that it is financially and otherwise independent of any synagogue. 2. Three-month gap between protected activity and termination insufficient by itself to support inference of retaliation. Pre-existing hostility between employee and manager dispels inference that her behavior was motivated by cooperation with co-workers complaint.

Ruehl v. Viacom, Inc., 500 F.3d 375, 101 FEP 907 (3d Cir. 2007). Panel: FUENTES, Van Antwerpen, Padova. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment denied [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Release was unenforceable because employer failed to include the mandatory disclosures under the Older Workers Benefit Protection Act (OWBPA) of the class of individuals covered by the package and the titles and ages of persons selected and not selected for severance (29 U.S.C. § 626(f)(1)(H)). Employer was obliged either to provide the disclosures or inform the employee how to obtain it. Nevertheless, summary judgment directed on the ground that employee filed his charge five years after termination. No equitable estoppel based on defective release; misrepresentation of law not an equitable basis for tolling limitations. Moreover, employee was not diligent in pursuing claim when he testified he was aware of possible age bias as early as five years before his termination. Employee failed to show how alleged misrepresentation caused him not to file a charge. Employee also not allowed to rely on the pendency of a collective action to excuse his failure to file a timely individual charge. Although he did opt-in to a conditionally-certified collective action, action was later decertified on the ground that employees were not similarly situated; "single filing" or piggybacking only extends to class/collective litigation, not individual cases (noting split with the Second Circuit).

Marra v. Philadelphia Housing Auth., 497 F.3d 286, 101 FEP 193 (3d Cir. 2007). Panel: AMBRO, Sloviter, Thompson. Claim on Appeal: Pa. state law retaliation. Disposition Below: Judgment following a jury trial (Marra, $208,676 back pay, $102,000 compensatory; DiGravio, $70,000 compensatory) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Evidence that one plaintiff's supervisor "constantly stat[ing] . . . there would be repercussions" against employees who "testified against" agency at a Title VII and Pa. state law trial admissible under FRE801(d)(2)(D). Person who makes remark need not necessarily be involved in employment decision for statement to constitute party-admission. where (as here) the supervisor was authorized to speak with subordinates about the employer's personnel practices. Establishment of personal knowledge not required. Same statement properly admitted over FRE403 objection; it bore substantial probative value to claim, and declarant was available at trial to explain/deny it. Jury's verdict was supported by sufficient evidence, as the employees established both prima facie causation and pretext. For Marra, although there was 9-month lapse between his testimony at trial and eventual termination, jury could have found intervening pattern of antagonism (vandalism of his computer that employer failed to investigate, exclusion from meeting concerning matters within his province, reassignment to lesser duties and reassignment of key deputy, look of disgust that agency's highest ranking official gave him when he learned that Marra testified at trial). Though vandalism was anonymous, machine was in control of agency during Marra's vacation. Moreover, although there had been a 9-month gap, Marra's termination had actually been in the works and recommended to superiors months before decision was announced. DiGravio was transferred to lesser duties 6 weeks after testifying at trial. Sequence of events also implied that non-retaliatory explanations were pretextual. As to Marra, supervisor had previously recommended eliminating several positions, but after Marra testified at trial he decided to recommend only eliminating Marra's job. Evidence contradicted explanation of "lack of available work." Similarly-situated employees not treated the same. Marra's admission on cross-examination that he did not think one of the superiors meant to retaliate against him was countered by evidence that superior was one who made termination recommendation. Same supervisor misrepresented to DiGravio that his reassignment was not a demotion. Combined with warning about "repercussions," record was sufficient to support verdict. State law verdict was consistent with verdict absolving one individual manager of section 1983 liability; Pa. law has broader scope of liability under principles of respondeat superior, and the jury could have found that the single manager was not involved in decision. Seventh Amendment most likely authorized jury in federal trial of state law claim, even though state law did not provide for jury, but agency waived challenge.

AARP v. EEOC, 489 F.3d 558, 100 FEP 1483 (3d Cir. 2007). Panel: RESTANI, McKee, Aldisert. Claim on Appeal: Challenge to EEOC regulation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: EEOC could grant exemption for employer retiree health benefits from ADEA to allow coordination with Medicare and state health benefits under its authority under 29 U.S.C. § 628, allowing the EEOC to "establish such reasonable exemptions to and from any or all provisions of [the Act] as it may find necessary and proper in the public interest." Regulation did not violate ADEA itself or Administrative Procedure Act. EEOC made findings that exemption was reasonable and necessary and proper in the public interest.

Matreale v. New Jersey Dept. of Military & Veterans Affairs, 487 F.3d 150, 100 FEP 905 (3d Cir. 2007). Panel: DIAMOND, Smith, Fisher. Claim on Appeal: N.J. state law retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: The intra-military immunity conferred by Feres v. United States, 340 U.S. 135 (1950), bars a retaliation suit based on major's investigation of another guardsman's claim of harassment. Although major argued that as a state guardsman, serving under Title 32, he is a state employee suing other state employees, also serving under Title 32, under state law, court holds that "all of whom were serving under orders issued pursuant to 32 U.S.C. § 502(f) at the time of the conduct in question, were serving in a federal capacity and therefore were federal 'employees' for purposes of the intra-military immunity doctrine."

Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770 (3d Cir. 2007). Panel: FISHER, Smith, Dowd. Claim on Appeal: N.J. state law discrimination (age). ERISA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Because decision by company to outsource technical services fell equally on younger and older workers in the shuttered division, there was no age discrimination. That decision might have been motivated in part to deprive older employees their pensions does not support an age-discrimination claim.

Andreoli v. Gates, 482 F.3d 641, 100 FEP 257, 19 A.D. Cases 196 (3d Cir. 2007). Panel: RENDELL, Sloviter, Irenas. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. 3. Rehabilitation Act reasonable accommodation. Disposition Below: 1. Summary judgment [defendant]. 2.Summary judgment [defendant]. 3.Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Genuine issue of material fact regarding whether remedial actions taken by employer concerning co-worker harassment were prompt and adequate, where (1) employee had to complain to five supervisors before (five months after employee complained) one of the harassers was transferred and denied a promotion on account of the complaint; (2) harasser was never interviewed about formal complaint of harassment or counseled; (3) when harassment resumed, escalating into physical threats and several instances where the harasser steered his van towards or head-on with plaintiff, supervisors took no action other than to tell the harasser to "beep his horn" if he drove by the employee; (4) two months later, management convened a traffic safety hearing instead of addressing harassment. 2. No causal link between employee's complaints of harassment and adverse actions, where events were separated by five months or more, and no evidence that decision-makers were aware of her complaints. 3. Employee failed to establish that she was significantly limited in the major life activity of working, thinking, concentrating or interacting with others. Occupational disease claim for PTSD and severe depression not evidence of disability under Rehabilitation Act, where legal standards under the Act and Federal Employees' Compensation act are different.

El v. SEPTA, 479 F.3d 232, 100 FEP 195 (3d Cir. 2007) . Panel: AMBRO, McKee, Restani. Claim on Appeal: Title VII disparate impact hiring (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: SEPTA (a public transit agency) proved "business necessity" for policy of barring persons with felony conviction for violent crime from serving as paratransit drivers for the disabled, no matter how long ago the conviction occurred. The plaintiff had a second-degree murder conviction from a gang-related juvenile shooting dating back to 1960, which disqualified him because the conviction was a "record of any felony or misdemeanor conviction for any crime of moral turpitude or of violence against any person(s)." Applicant argued that policy has a disparate impact because African Americans and Hispanics are more likely to have a criminal record, they are more likely to run afoul of the policy. Court holds that employers are allowed latitude to engage in risk management covering even remote contingencies, such as the personal risk to passengers of a violent assault by a driver. Under 42 U.S.C. § 2000e-2(k), court defines the business necessity defense as a "require[ment] that employers show that a discriminatory hiring policy accurately-but not perfectly-ascertains an applicant's ability to perform successfully the job in question. In addition, Title VII allows the employer to hire the applicant most likely to perform the job successfully over others less likely to do so." The agency presented unrebutted expert testimony that the risks of recidivism rise among violent offenders, it is impossible to predict which violent criminals will recidivate, and that disabled passengers are uniquely vulnerable crime victims. Because employee did not cross-examine experts or present his own evidence, fact-finder would be compelled to find that employer made out "business necessity" defense. That employer's witnesses could not explain why agency drafted policy the way it did not defeat summary judgment. Employee also failed to present evidence of an alternative employment practice that would cause a less discriminatory impact. Court rejects EEOC Guidelines requiring that employer take individualized factors into account, as well as EEOC determination that SEPTA did not meet its burden here.

Wishkin v. Potter, 476 F.3d 180, 18 A.D. Cases 1719 (3d Cir. 2007) . Panel: SLOVITER, Chagares, Greenberg. Claim on Appeal: Rehabilitation Act forced leave . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee -- a mail bagger with mental disabilities -- was off work for nearly a year while his fitness for duty was in dispute. The district court found for the employer, on the ground that the employee's own physician furnished a letter to the Post Office stating that the employee was qualified for permanent disability (due to a number of impairments, such as kidney and knee problems), and that plaintiff could not prove he was otherwise qualified for the job. On appeal, court holds that the record supported another inference: that the supervisor placed undue pressure on the employee to obtain such a letter, ostensibly so that he could avoid termination in an impending reduction in force. There was also evidence that "to suggest that a number of similarly situated disabled employees were being convinced to leave their positions at USPS and take permanent disability because they were being told their jobs were to be eliminated in the near future." Moreover, employee established evidence of pretext; he was deemed fit by agency physician, only to be reclassified as unfit later the same day, he had performed essential functions of job for 20 years, and there had been no change in the employee's health.

Wilson v. MVM, Inc., 475 F.3d 166, 18 A.D. Cases 1711 (3d Cir. 2007). Panel: FISHER, Fuentes, McKay. Claim on Appeal: 1. Rehabilitation Act termination against government. 2. ADA claim against contractor. Due process claim (not discussed here). Disposition Below: 1. Fed. R. Civ. P. 12(b)(6) dismissal for failure to state a claim [defendant] 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. The employees were private-contractor court security officers (CSOs) for federal courts, terminated after imposition of new physical examinations and the addition of disqualifying medical conditions. Court need not decide whether to apply "joint employment test" or "hybrid" test to determine whether employees were federal employees. Court affirms on alternative ground of exhaustion. Under the Rehabilitation Act, employees of federal agencies must file a charge with the EEOC (29 U.S.C. § 794a(a)(1); 29 C.F.R. § 1614.105). While the employees did file EEOC charges against the contractor MVM, it did not do so separately against the U.S. Marshal's Service (USMS). The CSOs contended that charges against the USMS would have been futile, considering that the original charges against MVM did not resolve their claims. So the panel had to decide whether the charge-filing requirement was jurisdictional -- in which case futility would not be recognized as a defense -- or subject to equitable doctrines of estoppel, waiver and tolling. The panel found that exhaustion was not jurisdictional. Court notes split with the reasoning on Spinelli v. Goss , 446 F.3d 159, 162 (D.C. Cir. 2006). Nevertheless, the panel also found that the CSOs presented no factual allegations of futility in their complaint and affirmed dismissal of their claims. 2. Employees with diabetes and who failed cardiac tests did not prove that their impairments were not mitigated, nor that employer regarded them as disabled.

Scheidemantle v. Slippery Rock Univ., 470 F.3d 535, 99 FEP 673(3d Cir. 2006). Panel: AMBRO, McKee, Nygaard. Claim on Appeal: Title VII and Pa. state law promotion (sex). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds: District court erred when it mechanically applied the McDonnell Douglas test to bar a hiring claim because the female applicant for a locksmith's position lacked the posted experience and credentials, and thus supposedly did not meet the employer's "legitimate expectations," when male candidates were allegedly promoted without the same qualifications and female candidate had comparable qualifications to successful males. Plaintiff also presented a genuine issue of material fact over employer's contention that the male candidates received superior training and promotion opportunities and were less qualified than the plaintiff.

Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 18 A.D. Cases 1185 (3d Cir. 2006). Panel: RESTANI, McKee, Ambro. Claim on Appeal: ADA reasonable accommodation and harassment. Disposition Below: Judgment after a jury trial; $12,000 compensatory, $15,000 back pay, but back pay vacated; $38,569.34 fees [plaintiff]. Outcome on Appeal: Vacation of back pay, award of reduced attorneys fees affirmed [defendant]. Grounds: Back pay deemed equitable relief under 42 U.S.C. § 2000e-5(g)(1) and expressly carved from legal relief under 42 U.S.C.§ 1981a(b)(2). Hostile work environment claim that does not culminate in lost back wages cannot support a back pay award. Award of fees to prevailing party, but reduction of lodestar by 75% for limited success affirmed. Settlement agreement that offset actual award of legal relief does not forfeit plaintiff's status as prevailing party. Limited fees appropriate where employee prevailed on one claim, did not obtain injunctive relief, and won damages well below per diem amount.

Lomack v. City of Newark, 463 F.3d 303, 98 FEP 1453 (3d Cir. 2006). Panel: BARRY, Van Antwerpen, Gibson. Claims on Appeal: Equal Protection transfer (reverse race discrimination). Disposition Below: Judgment after a bench trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : Policy to transfer firefighters by race solely to desegregate individual fire houses is per se race discrimination. Court rejects each of three compelling interests asserted by the city: remedying past discrimination (there was no record of past discrimination by the city, thus nothing to remedy); operational benefits (record lacked any evidence that the policy was necessary to make fire companies more effective); and compliance with a 1980 Consent Decree (decree did not compel integration of fire companies).

Petruska v. Gannon Univ., 462 F.3d 294, 98 FEP 1473 (3d Cir. 2006). Panel: SMITH, Cowen, Greenberg. Claims on Appeal: Title VII demotion, constructive discharge (sex) and retaliation. State tort and contract claims (not discussed here). Disposition Below: Dismissal under Fed. R. Civ. .P. 12(b)(1) [defendant]. Outcome on Appeal: Affirmed, but on Fed. R. Civ. P. 12(b)(6) grounds [defendant]. Grounds: Court adopts "ministerial exception," implied by First Amendment, and holds that employee may not maintain claim against religious institution where decision concerns choice as to who performs spiritual functions. Here, plaintiff was school chaplain for religious school. School did not waive/forfeit argument by (1) failing to raise it before the EEOC; (2) accepting state and federal funds with conditions limiting discrimination; or (3) avowing that it was an equal opportunity employer.

Moore v. City of Philadelphia, 461 F.3d 331, 98 FEP 1378 (3d Cir. 2006). Panel: STAPLETON, Fuentes, Alarcon. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff police officers presented genuine issues of material fact on all elements of their retaliation claims. Court notes that Burlington Northern v. White, 126 S. Ct. 2405 (2006), overruled circuit's standard for "adverse employment action," requiring only proof of a materially adverse action sufficient to issuade a reasonable worker from making or supporting a charge of discrimination. That officers were white was not material to standing to bring claim, where gravamen of retaliation is punishment for what employees did, not who they are. Employees opposed discrimination by meeting multiple times with superiors to complain about the commanding officer's discriminatory treatment of blacks. Captain allegedly threatened to make plaintiffs' lives "a living nightmare" if they followed through with an EEOC complaint. Employees demonstrated good faith belief that the actions they challenged violated Title VII (e.g. name-calling, leaving black officer on cold street to "punish" her, selectively disciplining black officers). Fact that some statements occurred outside of presence of black officers not probative of good faith belief; fact that comments were made at all demonstrated discriminatory intent. Also genuine issue of material fact whether actions were materially adverse. One officer was disarmed, suspended and transferred as punishment for a single comment said to be threatening, grossly disproportionate to offense; another was harassed, including assignment into rain to "punish" him, and transferred "for his safety"; third officer threatened and harassed, called a "rat" and "snitch" and falsely disciplined. Evidence of disproportionality and strong evidence of retaliatory animus sufficient to establish triable issue of fact on pretext. Co-worker harassment not actionable because department took prompt and effective action as a matter of law. Actions prior to December 1997 not part of case because there was no evidence of causation, and after February 1998 - through commander changed - employees established no triable issue of fact about causation based on temporal proximity. Disparate enforcement of "sick check" policy against protesting officers presented genuine issue of material fact.

Atkinson v. Lafayette College, 460 F.3d 447, 98 FEP 1515 (3d Cir. 2006) : Panel: STAGG, Ambro, Becker. Claims on Appeal: 1. Title IX retaliation. 2 Title VII and Pa. state law retaliation. 3 Title VII and Pa. state law non-renewal (sex). Breach of contract (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Remanded in light of Jackson v. Birmingham Bd. of Ed., 544 U.S. 167 (2005). 2. Title VII retaliation provision does not cover retaliation suffered from opposition to gender inequity in funding of sports programs. Plaintiff complained only about treatment of women's sports coaches, not treatment of women coaches. 3. Assuming plaintiff made out prima facie case, she failed to present genuine issue of material fact regarding pretext. Only basis for claim was conjecture that criticisms about her management style came from supervisor who allegedly was harder on females.

Fasano v. Federal Reserve Bank of New York, 457 F.3d 274, 18 A.D. Cases 321 (3d Cir. 2006) : Panel: VAN ANTWERPEN, Barry, Gibson. Claims on Appeal: N.J. state reasonable accommodation and retaliation. Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) denied [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Federal Reserve Act, 12 U.S.C. § 341(Fifth), which allows banks to terminate employees "at pleasure" preempts state statutory employment law to the extent that it places substantive or procedural burdens on banks that we greater than parallel federal law. (Noting split in circuits about scope of preemption.)

Hill v. Borough of Kutztown, 455 F.3d 225, 98 FEP 942 (3d Cir. 2006). Panel: GARTH, McKee, Lifland. Claims on Appeal: ADEA and Pa. state law termination. Constitutional and state tort claims (not discussed here). Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: City manager alleged that mayor engaged in series of "harassing, intimidating and oppressive confrontations" with him and stirred up a rumor campaign against him until he quit, whereupon he was replaced by someone 15-16 years younger. The district court held that the employer (the city) could not be found liable under the ADEA because the "independently elected" mayor (who lacked the power to fire Hill directly) was not under the control of the city counsel, and his behavior could not be imputed to it. Panel finds that the allegations of the complaint hold out the possibility that the mayor, though he may lack power to terminate city manager's employment may nonetheless constructively discharge him provided that he exercises some power over him.

Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 18 A.D. Cases 113 (3d Cir. 2006) . Panel: RENDELL, Van Antwerpen, Weis . Claim on Appeal: ADA and PA. state law harassment, discrimination, harassment and retaliation . Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Although verification of charge is a precondition to suit, and is not satisfied by functional alternatives (such as having counsel sign the charge), employer waived its right to assert employee's failure to verify charge by not raising its objection before the EEOC, when (1) it received a copy of the unverified charge, (2) responded to the charge solely on the merits and (3) only raised an objection after the EEOC issued a right-to-sue letter. Failure to sign charge not jurisdictional in nature.

Curay-Cramer v. Ursuline Academy, 450 F.3d 130, 98 FEP 289 (3d Cir. 2006). Panel: ROTH, Becker, Fuentes. Claim on Appeal: Title VII termination (sex) and retaliation. Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Catholic school teacher signs a pro-choice petition for publication in a state-wide newspaper, and the school fires her after she refuses an opportunity to recant. The retaliation theory fails because the teacher failed to identify any employment practice that she sought to challenge as violative of Title VII. The ad was purely supportive of abortion rights on the thirtieth anniversary of Roe v. Wade; it did not mention any policy or practice of the employer. The discrimination claim -- based on the school's alleged failure to terminate male staff who advocated private political views, such as about the war in Iraq, or who were not Catholic -- failed because it would demand judicial inquiry about whether other views expressed privately by faculty conflicted with religious doctrine (i.e., the ministerial exception).

VACATED FOR REHEARING Petruska v. Gannon Univ., 448 F.3d 615 (3d Cir. 2006). Panel: BECKER, Nygaard [SMITH, dissenting]. Claim on Appeal: Title VII demotion (sex) and retaliation. State tort and contract claims (not discussed here). Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds:Court rejects absolute "ministerial exception," implied by First Amendment, and holds that employee may maintain claim against religious institution provided that it did not require an examination of matters of faith, doctrine, or internal church regulation. Case should not have been dismissed on Rule 12(b)(1) or (b)(3) grounds, because on the face of the complaint, former chaplain alleged that she was demoted both to favor a male candidate and in retaliation for opposing harassment (challenged the university president's behavior with a female subordinate and was active on committee to adopt new harassment guidelines) on grounds unrelated to religion.

Collins v. Alco Parking Corp., 448 F.3d 652, 98 FEP 129 (3d Cir. 2006). Panel: BECKER, Rendell, Smith. Claim on Appeal: ADEA termination. Disposition Below: Judgment following a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No plain error in charging jury (1) that attorney's fees may be awarded by the court and are not an element of damages; (2) that it was not charged with "clear[ing] up the mystery of who overcharged the customer"; (3) without plaintiff's formula that jury could find that employer's "shifiting and insincere" explanation support pretext; (4) with a list of categories of circumstantial evidence that might be considered as evidence of pretext; (5) with an an "admittedly broad example" of pretext.

Tomasso v. The Boeing Co., 445 F.3d 702, 97 FEP 1579 (3d Cir. 2006). Panel: BECKER, Fuentes [ROTH, dissenting]. Claim on Appeal: ADEA and Pa. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee created genuine issue of material fact regarding his selection for job elimination in reduction in force (using force rank system) , where there were "sufficient implausibilities and inconsistencies in Boeing's primary rationales" for decision in RIF. Employer conceded existence of prima facie case, but argued multiple reasons why employee was selected. Not necessary to rebut all reasons, if plaintiff casts doubt on a fair number of them. Disputed facts included the following: (1) whether employee was interested in inspection process for subcontractors (Process Validation Assessments, or PVAs), where employee and supervisor testified differently about what the employee said about process, and PVAs were rated "met expectations" in his evaluation; (2) whether employee failed to share technical knowledge, where supervisor's explanation was contradicted by employee's account of what was said on this issue; (3) other proffered rationales were insufficient to support decision to terminate, where they would not have reduced employee's overall score enough to cause his termination.

Turner v. Hershey Chocolate USA, 440 F.3d 604, 97 FEP 1249 (3d Cir. 2006) . Panel: RENDELL, Fisher, Van Antwerpen. Claim on Appeal: ADA reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee not barred under Cleveland by alleged admissions of total disability in SSDI form; it does not address question of whether she could perform work with requested accommodation. Likewise, statement by her treating physician the she was "unable to do her regular job description" not inconsistent with obtaining accommodation. Statements that medical restrictions impede her ability to work not inconsistent with employee performing essential functions of her job. To state that she cannot perform more rigorous duties of one production line (line 7) does not meant that she cannot perform essential functions on lines 8 and 9. On merits, employer's contention that rotation between lines 7, 8 and 9 was essential function was genuine issue of material fact, where under definition of "essential function," 29 C.F.R. § 1630.2(n)(1), plaintiff's position does not exist for purpose of rotation; implementation of rotation policy would have no effect on number of employees need for job; and rotation is not a specialized function. Moreover, under 29 C.F.R. § 1630.2(n)(3), several factors weigh against essential function, including that the written job description and collective bargaining agreement do not mention rotiation; little time is spent on rotation; and it was not done in the past. "Reasonable accommodation" also present genuine issue of material fact, where allowing plaintiff accommodation will not effect implementation of rotation for other employees. Evidence not conclusive that exempting plaintiff from rotation will endanger her health.

Jensen v. Potter, 435 F.3d 444, 97 FEP 555 (3d Cir. 2006) . Panel: ALITO, Ambro, Restani. Claims on Appeal: 1. Title VII retaliatory harassment. 2. Title VII harassment (sex). Disposition Below: 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. Outcome on Appeal: 1.Reversed [plaintiff]. 2.Reversed [plaintiff]. Grounds: 1. Recognizing that hostile work environment may be actionable under retaliation clause (though noting split with Eighth and Fifth Circuit), court finds genuine issue of material fact whether hostile acts by co-workers which began right after employee turned in supervisor far harassment and continuing for 19 months was actionable. Though some events were neutral in content, and others appeared motivate by animus arising from harassment controversy rather than specific retaliation for complaint, enough acts appeared specifically targeted at original complaint to l;end retaliatory cast to the balance.. Court notes that harassment need only be severe or pervasive, not severe and pervasive. Acts included retaliatory insults 2-3 times a week, physical threats and property damage to car. Genuine issue of material fact whether employer took prompt and adequate steps against harassment. Although counseling of harasser was adequate, it was not prompt (took 19 months and intervention of new supervisor.2. Same acts of harassment described above might be deemed sex harassment, under theory that co-workers would not have harassed a male employee who made a comparable complaint.

Armstrong v. Burdette Tomlin Memorial Hospital, 438 F.3d 240, 97 FEP 572, 17 AD Cases 867 (3d Cir. 2006) . Panel: AMBRO, Alito, Fisher. Claims on Appeal: 1. N.J. state law disability reasonable accommodation. 2. N.J. state law age termination. 3. N.J. state law disability termination. FLSA (not discussed here). Disposition Below: 1. Judgment after a jury trial [defendant]. 2. Judgment after a jury trial [defendant]. 3. Judgment after a jury trial [defendant]. Outcome on Appeal: 1.Reversed [plaintiff]. 2.Affirmed [defendant]. 3.Reversed [plaintiff]. Grounds: 1. Jury instruction erroneously directed that employee had burden to prove that he requested a particular accommodation. (N.J law tracksADA on this point.) Thus, there was a substantial likelihood that jury found against plaintiff on that ground. There remained genuine issues of maaterial fact regarding whether employer failed to make good faith effort to accommodate, and whether there were accommodations possible to the employee's disability (in this case a new cart, or reassigning some lifting jobs to other staff). 2. Although jury should not have been instructed on McDonnell Douglas burden-shifting, it is not reversible error to do so. Omission of instruction that jury may infer discrimination from falsity of employer's explanation harmless error, where jury found that employer's reasons were not false (age claim), and where jury answered special interrogatories against plaintiff on prima facie elements (disability claim). Wording of interrogatories and instruction on discharge not erroneous. 3. Jury misinstructed on burden of proof on ultimate question. Where employer gave as reason for discharge that employee was physically incapable of performing his job, under state law the burden shifted to the employer to prove that it reasonably concluded that the employee's handicap precluded performance of the job.

Slagle v. County of Clarion, 435 F.3d 262, 97 FEP 386 (3rd Cir. 2006) . Panel: SLOVITER, McKee, Weis. Claims on Appeal: Title VII and Pa. state law retaliation . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds:Participation clause does not cover individual who filed charge that lacked facially valid allegations of an unlawful practice under Title VII.

Benn v. First Judicial District of Penna., 426 F.3d 233, 17 A.D. Cases 228 (3d Cir. 2005) . Panel: SLOVITER, Barry, Smith. Claims on Appeal: ADA termination and reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Under state law, judicial districts are an arm of the state entitled to Eleventh Amendment immunity.

Caver v. City of Trenton, 420 F.3d 243, 96 FEP 679 (3d Cir. 2005). Panel: VAN ANTWERPEN, Fuentes, Becker . Claim on Appeal: 1. Title VII and N.J. state law harassment. 2. Title VII and N.J. state law retaliation. N.J state law public policy retaliation claim (not discussed here). Disposition Below: 1.Judgment as a matter of law [defendant]. 2. Judgment following a jury trial [defendant]. Outcome on Appeal: 1.Affirmed [defendant] 2. Affirmed [defendant]. Grounds: 1. District court refused to instruct jury on harassment claim, but failed to enter order formally dismissing the claim. Appellate jurisdiction allowed based on district court's clear intent to enter Rule 50 relief. Assuming district court erred in not submitting the claims to the jury, though, the error was harmless. Officer who alleged racially hostile work environment adduced no evidence that he was personally subjected to written or verbal racial slurs. Although plaintiff also claimed that superior officers submitted false memos to department, and recommended him for psychiatric treatment to harass him because of race, jury had entered special findings on retaliation claim that found that they did not write intentionally false memos for racial reasons. Exclusion of evidence about validity of mental health evaluations on FRE410 relevance grounds not an abuse of discretion, because evidence of accuracy would not tend to prove racial motive. 2. District court did not err in instructing jury that retaliation had to be determinative factor, rather than a motivating factor

Morris v. Rumsfeld, 420 F.3d 287, 16 AD 1852 (3d Cir. 2005). Panel: POLLAK, Sloviter, Fisher . Claim on Appeal: Rehabilitation Act reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Federal employee who obtains a final administrative disposition from EEOC finding in employee's favor on liability but not relief, cannot file an action in federal court challenging only the remedy under 29 U.S.C. § 794a(a) (analogous to right under 42 U.S.C. § 2000e-16(c)), noting split in the circuits between Fourth and Ninth Circuits (which allow such actions) and Tenth and D.C. Circuits (which bars them).

Antonelli v. State of New Jersey, 419 F.3d 267, 96 FEP 491 (3d Cir. 2005). Panel: ALDISERT, Sloviter, Fisher . Claim on Appeal: § 1983 and N.J. state law Equal Protection reverse discrimination testing . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds:"Biodata" component of examination (score of physical performance, cognitive performance and teamwork, which was worth one-third of the overall exam score) for entry-level firefighters adopted under Consent Decree. had no disparate impact on non-Hispanic whites. Claims against state barred by Eleventh Amendment immunity, except for injunctive relief against state officials in their official capacity. Union lacked standing to challenge test. No due proce3ss violation because plaintiffs failed to establish property interest in hiring. Decision to use only teamwork component of biodata came before administration of written tests, and so decision could not have been influenced by test results.In any event, teamwork score was comparable across racial classifications and had no impact.

Hugh v. Butler Co. Family YMCA, 418 F.3d 265, 95 FEP 332 (3d Cir. 2005). Panel: ROTH, Shapiro [Chertoff, had resigned at time of issuance]. Claim on Appeal: Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee survives prima facie case over contention that she did not meet employer's objective minimum qualifications for job (degree and casework experience), where employer was already aware of these deficiencies when it hired her but decided to giver her a chance to perform the job based on her experience with the organization. Employee also presented genuine issue of material fact regarding pretext (employer did not follow its ordinary progressive disciplinary methods, male Advisory Committee members ignored her at meetings and deferred to her male predecessor, employee rebutted specific facts alleged to demonstrate her lack of leadership skills).

Overall v. University of Pennsylvania, 412 F.3d 492 (3d Cir. 2005). Panel: ALITO, Smith, Fisher . Claims on Appeal : Title VII and Pa. state law discrimination (sex). State tort claims (not discussed here). Disposition Below: Summary judgment (defendant). Outcome on Appeal: Affirmed (defendant). Grounds: Search committee's decision not to extend offer to lecturer supported by non-invidious justifications (e.g. poor faculty relations, integrity issues).

Kautz v. Met-Pro Corp., 412 F.3d 463 (3d Cir. 2005). Panel: ALDISERT, Fisher [SLOVITER, dissenting]. Claims on Appeal: ADEA and Pa. state law termination . Disposition Below: Summary judgment (defendant). Outcome on Appeal: Affirmed (defendant). Grounds: Although plaintiff met prima facie case, he failed to establish that proffered justification (selection during reductionin force) was a pretext for age discrimination. Plaintiff presented genuine issue of material fact about the use of one statistic (territorial sales) that concededly did not measure individual performance. But even if one explanation is arguably pretextual, employer can rely on other legitimate reasons to support decision. Employer could legitimately rely upon two past years of production: plaintiff did not establish that statistic was never used before or could not be reproduced using the same data. Argument that methodology for selecting employees favored sales people with less experience was not supported by actual results, and in any case was not shown to be adopted for a discriminatory purpose or a departure from prior methodology. Employer could also use personnel files to compare candidates; evidence of negative evaluations in files not shown to be fabricated or inconsistent with other information in the file. Employer could rationally rely on more recent evaluations over historical performance.

Fasold v. Justice,409 F.3d 178, 95 FEP 1445 (3d Cir. 2005). Panel: SLOVITER, Ambro [ALDISERT, dissenting] . Claims on Appeal : 1. ADEA and Pa. state law termination claim. 2. ADEA and Pa. state law retaliation claim. Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Police detective who (it was admitted) met the prima facie case established a genuine issue of material fact as to four asserted reasons for termination. (1) Generated insufficient arrests and investigations. Direct supervisor contradicted this theory in his deposition. (2) Unwilling to work overtime hours. Direct supervisor testified that other detectives decline overtime, that no track was kept of these situations, and he coul not remember anytime that plaintiff declined overtime. (3) Abandoned arrest on December 14, 2001. Plaintiff testified that he had supervisor's pre-approval to leave early, and confirmed that by radio during the arrest without protest by supervisor. (4) Failed to submit proper leave forms. Practice was to always allow detectives who failed to fill out the forms to submit them after the fact. 2. Denying plaintiff access to a second level of review in grievance procedure, specifically referencing pendency of EEOC and state agency charges in the denial, is both an adverse employment action and causally linked to protected activity.

Podobnik v. United States Postal Service, 409 F.3d 584 (3d Cir. 2005). Panel: VAN ANTWERPEN, McKee, Weis . Claims on Appeal: ADEA discriination. Section 301 claim (not discussed here). Disposition Below: Summary judgment (defendant). Outcome on Appeal: Affirmed (defendant). Grounds: Under 29 U.S.C. § 633, postal worker has 180 days to file a notice of intent to sue with the ADEA. Claims that occurred originally in 1993 (route reduction) and 1998 (forced retirement owing to safety infractions) were time-barred when he took no action until 2000 to initiate claim. Discovery rule did not protect his claims, because he had actual knowledge of the injury at the time of the events. Nor were the dates equitably tolled. Plaintiff shows no sign of having been misled by employer about the events; he also took steps as early as 1998 to visit EEOC. EEOC's supposed erroneous advice on one occasion was not an "extraordinary" circumstance justifying relief. Plaintiff's claim that he in fact did file a charge (with the EEOC instead of the employer) belied by absence of any intake questionnaire on file with EEOC. Alleged failure to post ADEA rights at worksite, 29 U.S.C. § 627, at most tolls claim until employee takes action or obtains actual knowledge, which in this case occurred no later than 1998.

Emory v. AstraZeneca PhGlanzman v. Metropolitan Mgt. Co., 401 F.3d 174, 16 A.D. Cases 905 (3d Cir. 2005). Panel: RENDELL, Aldisert, Magill. Claims on Appeal: ADA promotion and reasonable accommodation claim. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff with cerebral palsy presented genuine issue of material fact about whether he was substantially limited in the major life activities of performing manual tasks and learning. District court erred in imposing too high a standard for "substantially limited" (citing 29 C.F.R. §1630.2(j)(1) and (2)) and crediting evidence of employee's personal efforts to overcome effects of low IQ and paralysis of one side of his body. Employee had only second grade reading level and could not perform many ordinary tasks (button clothes, tie shoes, open or unscrew caps, etc.) requiring two hands.

Glanzman v. Metropolitan Mgt. Co., 391 F.3d 506, 94 FEP 1680 (3d Cir. 2004). Panel : ALDISERT, Scirica, Fisher . Claims on Appeal: 1. ADEA and Pa. state law termination claim. 2. ADEA and Pa. state law retaliation claim. 2. ADEA and Pa. state law retaliation claim for second plaintiff. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1.Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Although first plaintiff property manager (Glanzman) furnished direct evidence of discrimination sufficient to trigger mixed-motive analysis (her manager said that he wanted to fire plaintiff and "replace her with a young chippie with big tits"), employer established affirmative defense as a matter of law that plaintiff would have been terminated anyway (e.g. abused phone and internet access at work, allegedly converted a dishwasher then lied during an investigation, failed to appear when paged, used company employees to perform personal services).2. First plaintiff cited discrimination as the reason for her termination in unemployment insurance filing. Plaintiff suffered no adverse employment action (she'd already been fired and was allowed to continue to live rent-free on facility at defendant's suffrage).3. Second plaintiff (Fries) admitted in deposition that he was terminated not because he cooperated in investigation of Glanzman complaint, but because he refused to write a letter of apology for committing a work rule violation (working on Glanzman's own property).

Storey v. Burns Int'l Security Services, 390 F.3d 760, 94 FEP 1601 (3d Cir. 2004). Panel: MCKEE, Roth [SCIRICA, concurring]. Claims on Appeal: Title VII national origin/religion termination claim. Disposition Below: Rule 12(b)(6) motion to dismiss [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although casting doubt on employee's contention that his identity as "Confederate Southern-American" constitutes a protected classification under Title VII, dismissal was affirmed on alternative basis that termination was based on his failure to comply with direction to remove Confederate flag stickers off of his lunch box. Complaint did not state that employer knew about religious significance of the stickers or that he was otherwise entitled to accommodation.

Fiscus v. Wal Mart Stores, Inc., 385 F.3d 378, 16 A.D. Cases 10 (3d Cir. 2004). Panel: CHERTOFF, Alito, Debevoise. Claims on Appeal: ADA termination . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : Employee with end-stage renal failure, who required kidney dialysis throughout the work week, created genuine issue of material fact about whether she suffered significant limitation in major life activity of processing bodily waste and cleansing blood.

Williams v. Philadelphia Housing Authority Police Dept., 380 F.3d 751, 15 A.D. Cases 1607 (3d Cir. 2004). Panel: STAPLETON, Nygaard, Fuentes . Claim on Appeal: 1. ADA and Pa. state law reasonable accommodation. 2. ADA and Pa. state law retaliation . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Police officer for housing authority who exhibited belligerent behavior was placed on medical leave, suffering from major depression. District court erred in holding that plaintiff was not disabled. Plaintiff alleged that his inability to carry firearms substantially limited him in the major life activity of working. Genuine issue of material fact presented whether plaintiff was restricted in a class of jobs (i.e., law enforcement). Moreover, impairment need not be permanent; even for a temporary condition, it is sufficient that it is likely to have a long-term impact (especially given, in this case, the lack of medical assurance that his condition will improve). Plaintiff also presented genuine issue of material fact whether he was "regarded as" disabled by department; jury could find that department believed plaintiff would need ongoing treatment and could never be reinstated. Plaintiff also presented genuine issue of material fact whether he was a "qualified individual," where he could have been assigned to the radio room. Defendant argued that plaintiff could not be around firearms, even carried by others (and was thus not qualified to work in security offices at all), but issue of fact was presented whether such conclusion was a reasonable one. Likewise, a fact issue is presented whether employer failed to engage in good faith in interactive process. Noting split in circuits , panel holds that "regarded as" employees are entitled to reasonable accommodation. 2. Plaintiff failed to make out prima facie claim of retaliatory discharge because the only evidence of causation is temporal proximity, and period of time between plaintiff's complaint and termination was seven weeks. Moreover, the department had already granted plaintiff two medical leaves and there was no evidence that it would have denied his a third leave if requested.

Palcko v. Airborne Express, 372 F.3d 588, 93 FEP 1775 (3d Cir. 2004). Panel: SLOVITER, Rendell, Aldisert. Claims on Appeal: Title VII and Pa. state law discrimination and harassment claims. Disposition Below: Motion to compel arbitration denied [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: FAA did not apply to arbitration agreement of employee who supervised truck drivers, covered by "workers in commerce" exclusion in FAA § 1, because employee's work was so closely related to commerce as to in practical effect be part of it. Nonetheless, district court could exercise supplemental jurisdiction to enforce arbitration agreement under Washington state arbitration law (under agreement's choice of law), and court of appeals had pendent appellate jurisdiction to review district court's decision. District court erred in holding that Washington state law was preempted by the FAA's exclusion of workers in commerce, and case was remanded for enforcement of agreement under state law. Employer did not waive right to arbitration by bringing motion to compel 38 days after learning about civil action, but after it had already moved to dismiss case for insufficiency of process.

Lloyd v. Hovensa, LLC, 369 F.3d 263, 93 FEP 1499 (3d Cir. 2004). Panel: STAPLETON, Nygaard [BECKER, concurring]. Claims on Appeal: Title VII failure to hire (race). Disposition Below: Motion to compel arbitration granted, but arbitration clauses dealing on confidentiality severed; case dismissed [defendant]. Outcome on Appeal: Reversed; confidential clauses restored, case remanded for arbitration; plaintiff's case stayed [defendant]. Grounds: Court had appellate jurisdiction under FAA, 9 U.S.C. § 16, to review a decision compelling arbitration and dismissing the plaintiff's case with prejudice. District court erred in dismissing, rather than staying, plaintiff's claim because FAA § 3 expressly requires a stay (noting a split in the circuits). Employee's argument that certain of the defendants allegedly lack "standing" to compel arbitration on the ground that they were not parties to the agreement was forfeited when not raised in the district court, nor did the argument present a jurisdictional issue not subject to waiver (arbitration being in the nature of a defense, rather than jurisdiction). Argument that arbitration policy that applied only to the company's Virgin Islands workforce constituted discrimination on the basis of race or national origin without merit. On employer's cross-appeal, district court erred in striking sections of arbitration rules enforcing confidentiality.

Parilla v. AIP Worldwide Services VI, Inc., 368 F.3d 269, 93 FEP 1483 (3d Cir. 2004). Panel: STAPLETON, Nygaard, Becker. Claims on Appeal: Title VII (and tort claims). Disposition Below: Motion to compel arbitration denied [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Court of appeals could entertain plaintiff's alternative arguments in support of the order on the merits, without reaching question of whether FAA § 16(a)(1)(B) confers jurisdiction over cross-appeal by employee opposing arbitration. Plaintiff also conceded in district court record that defendants who were not formally parties to the arbitration agreement could nevertheless join action as third party beneficiaries of agreement. Court applies Virgin Islands law to determine enforceability of arbitration agreement. Rules that enforce confidentiality of arbitration process and prevented recourse to administrative agencies for additional relief did not violate public policy and thus were not unconscionable. Clauses that provided employee only 30 days to file claim and required each party in Title VII case to bear its own fees and costs held substantively unconscionable. Employee could obtain limited discovery to challenge loser-pays standard for fees and costs in Title VII case. Employer's offer to waive unconscionable clauses did not effect enforceability, because unconscionability is measured from the time the agreement is first formed. Court sets standard for remand that unconscionable terms may be severed unless they evidence a deliberate attempt to discourage employee's resort to arbitration or to rpoduce results biased in employer's favor.

Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 15 A.D. Cases 797 (3d Cir. 2004). Panel: STAPLETON, Nygaard, Fuentes. Claim on Appeal: N.J. state law discrimination [disability]. FMLA and state tort claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee recovering from surgery was "handicapped" under state law, but unable to perform his job (therefore not "qualified").

Brzozowski v. Correctional Physician Services, Inc., 360 F.3d 173, 93 FEP 436 (3d Cir. 2004). Panel: WEIS, Rendell [Garth, dissenting]. Claim on Appeal: Title VII termination claim. Disposition Below: Stipulated judgment for plaintiff of $150,000, but district court denies joinder motion to add corporate successor [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Successor could be held liable on common law successor liability theory (noting arguable split with Seventh Circuit). Where a plaintiff files a timely complaint (i.e. within 90 days of a right-to-sue notice), no limitations period applies to motion to join a successor corporation, although successor may raise laches.

Monaco v. American General Assurance Co., 359 F.3d 296, 93 FEP 523 (3d Cir. 2004). Panel: GREENBERG, McKee, Smith. Claim on Appeal: N.J. state law termination [age]. State contract claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: State law follows ADEA with respect to prima facie pretext case, that plaintiff must point to someone both similarly situated and "sufficiently younger" to raise inference of bias. In this case, only similarly situated individual was in fact two years older than plaintiff.

Potence v. Hazelton Area School Dist., 357 F.3d 366, 93 FEP 193 (3d Cir. 2004). Panel: SLOVITER, Jordan, Weis. Claim on Appeal: ADEA hiring. Disposition Below: Judgment after jury trial; $344,500 front/back pay and liquidated damages [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Employer's reliance on certification requirement for HVAC/plumbing instructor which it did not mention in advertisement, and which reason it did not consistently advance, combined with biased remarks by one person involved in the hiring process, supports jury verdict. Failure to give mixed-motive jury interrogatory not error, where charge already stated a mixed-motive defense. Liquidated damages may be entered against municipality, as ADEA defines such entities expressly as employers. Jury not required to exclude retirement benefits from front pay award. Affirms attorney's fee loadstar and award of paralegal fees.

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