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September 2004

More Daily Developments in EEO Law
by Paul Mollica (c) 2004

September 2004

Thursday, September 30, 2004

Why, oh why, do district court judges have to keep on re-learning the same lesson -- that common workplace vulgarity is no excuse for a hostile work environment? Once again, summary judgment was granted in a Title VII sex harassment case on the ground that a (mostly male) garage environment where the plaintiff worked was simply a rough place, and sex talk just had to be tolerated. Not so, the Second Circuit holds in Petrosino v. Bell Atlantic, No. 03-7366 (2d Cir. Sept. 29, 2004) (available on the Second Circuit website) .

Here's the record that the plaintiff set forth:

"Petrosino has adduced evidence demonstrating that the work environment at the Edgewater Garage was more reminiscent of a locker room than a place of business. Profanity was commonplace, and crude humor was routine. But the focus of Petrosino's complaint is not on this conduct but on the sexually demeaning conversations that were also an accepted part of the daily work environment. Although male co-workers often insulted each other in these exchanges, the substance of their remarks always conveyed a profound disrespect for women. Further, when working outdoors, Petrosino would constantly confront crude sexual graffiti scrawled by co-workers inside terminal boxes. Among the images depicted were headless women with their legs in the air, women's legs wide open, men with their penises out, and men having sex with animals. A further theme of the graffiti was that Bell Atlantic employees (male and female) performed sex acts on supervisors to advance their careers."

The district court found that the plaintiff failed to establish severe or pervasive harassment, finding that "that evidence of incessant sexually offensive exchanges at the daily assignment meeting and omnipresent sexual graffiti in the terminal boxes could not support Petrosino's claim, because this conduct, while 'undeniably boorish and offensive,' was not 'motivated by hostility toward Petrosino because of her sex.'" But the Second Circuit reversed, righting the lackadaisical perspective of the district court

"The comments and graphics that permeated Petrosino's work environment may have sexually ridiculed both men and women, but there is an important, though not surprising, distinction. The conduct at issue sexually ridiculed some men, but it also frequently touted the sexual exploits of others. In short, the insults were directed at certain men, not men as a group. By contrast, the depiction of women in the offensive jokes and graphics was uniformly sexually demeaning and communicated the message that women as a group were available for sexual exploitation by men. Such workplace disparagement of women, repeated day after day over the course of several years without supervisory intervention, stands as a serious impediment to any woman's efforts to deal professionally with her male colleagues."

While summary judgment on her promotion and constructive discharge claims was affirmed, the case was remanded for trial on the harassment claim.

Wednesday, September 29, 2004

Two years ago, the Third Circuit in Colbert v. Dymacol, Inc. held that a defendant could tender full relief in a Rule 68 offer to a class representative in a putative class action, and thereby moot the case before it proceeded. It briefly threw a scare into the plaintiffs' class action bar, until the en banc court wiped it away. Colbert v. Dymacol., Inc., 302 F.3d 155 (3d Cir.), vacated and reheard en banc, 305 F.3d 1256 (3d Cir. 2002), dismissed as improvidently granted, 344 F.3d 334 (3d Cir. 2003).

Today another panel of the Third Circuit comes out the other way, holding in Weiss v. Regal Collections, No. 03-4033 (3d Cir. Sept. 29, 2004) that such Rule 68 offers do not necessarily moot a Rule 23 class action. The suit alleged an unfair debt collection practice by a bill collector in violation of the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. § 1692. Before either an answer or a certification motion could be filed, the collection agency tendered a full-relief offer of judgment (a $1000 liquidated penalty under 15 U.S.C. § 1692k(a)) to Mr. Weiss that offered neither relief to the class (up to $500,000 or 1% of the net worth of the debt collector under 15 U.S.C. § 1692k(a)(2)(B)), nor any kind of equitable relief (apparently unavailable under this statute). When Mr. Weiss declined the offer, defendants pulled the trap and filed a motion to dismiss under Fed. R. Civ. P. 12(b)(1), arguing Weiss's claim was mooted by the tender of full relief. The motion to dismiss was granted.

The Court found that Weiss's case presented a straightforward clash between Fed. R. Civ. P. 23 and 68. The panel reaffirmed that a class action may be dismissed on Article III mootness grounds if the putative class representative's claim becomes moot. It also cited prior authority that plaintiffs who previously settled an action could not continue to serve as class representatives (Lusardi v. Xerox Corp., 975 F.2d 964 (3d Cir. 1992)). Countervailing this line of authority, though, was the reality that if the district court were to be affirmed, then defendants in class actions would possess a perfect tactical weapon -- an outcome that would not advance the interests of justice: "allowing the defendants here to 'pick off' a representative plaintiff with an offer of judgment less than two months after the complaint is filed may undercut the viability of the class action procedure, and frustrate the objectives of this procedural mechanism for aggregating small claims, like those brought under the FDCPA."

The court did not foreclose entirely the use of Rule 68, such as where plaintiff unreasonably delays moving for class certification. But in the main, this was a good wholesome step to preserve the vitality of low-stake federal class actions.

Tuesday, September 28, 2004

Last July, I reported on Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir. 2004), in which the Ninth Circuit held that a female minister was not barred by the First Amendment "ministerial exception" from seeking relief under Title VII against a religious employer for sex and retaliatory harassment. Seems that Rev. Elvig (between dismissal in the U.S. District Court and reversal in the Ninth Circuit) commenced a second action against the same employer in state court stating essentially the same claims. But the result couldn't have been more different -- summary judgment was granted entirely in favor of the employer on federal (as well as state) free exercise constitutional grounds formerly rejected by the federal court of appeals. Elvig v. Ackles, No. 53764-4-I (Wash. App. Sept. 27, 2004). While acknowledging (grudgingly) the Ninth Circuit's decision, the appellate court held that the procedural stage of the respective decisions made a critical difference: "Unlike the Ninth Circuit, we are not reviewing a judgment on the pleadings and are able to consider that a civil court could not adjudicate Elvig's claims without inappropriately examining decisions made by ecclesiastical judicial bodies and interpreting rules pronounced in the Book of Order. Like the dissent in the Ninth Circuit case, we conclude that the courts cannot adjudicate Elvig's claims without second-guessing church doctrine and its interpretation." Teeing up, I suppose, eventual U.S. Supreme Court review of this case.

UPDATE 9/28/04 at 10:45 a.m. CST -- The U.S. Supreme Court granted cert in a clutch of cases today, none of them related to employment issues. One ADA case, though: SPECTOR, DOUGLAS, ET AL. V. NORWEGIAN CRUISE LINE LTD. (03-1388), addressing whether Title III of the Americans with Disabilities Act ("ADA") applies to foreign-flagged cruise ships.

Monday, September 27, 2004

Nothing to report in the way of new opinions, but a couple of observances:

1 U.S. Court of Appeals Judge Richard S. Arnold of the Eighth Circuit passed away last Thursday from complications related to lymphoma. He had served with distinction since 1980, including a term as Chief Judge of the circuit. I never had the honor to meet the judge, but from his opinions I carried away a strong impression that he tried to do justice every day he sat on the bench. He'll be missed outside the Eighth Circuit, too. Here's a good Judge Arnold interview on the "How Appealing" website. Here's a characteristic effort by the judge to do equity (sadly, in dissent) against overwhelming odds (Richenberg v. Perry ).

2. I have not been able to log onto the Eleventh Circuit website in a couple of days. I presume the problem will be fixed after the latest hurricane passes. My prayers for all of the folks affected by this latest crisis.

UPDATE 9/27/04 at 12:25 p.m. -- The Eleventh Circuit website is back in operation, and a pending federal constitutional challenge to Florida's balloting laws survives a Younger abstention in Wexler v. Lepore, No. 04-12826 (11th Cir. Sept. 27, 2004) .

Thursday, September 16, 2004

My Fifth Circuit write-ups are now up-to-date.

This site was quiet for the past couple of days, owing to the absence of any new U.S. Court of Appeals EEO decisions to report. Today, I want to note EEOC v. Caterpillar, Inc., No. 03-5637 (N.D. Ill. Sept. 14, 2004), presenting the seldom-reported question of how far an employee may go at trial to characterize allegedly harassing events. The EEOC, in a racial harassment case, sought to introduce employee testimony about demeaning whistles and racial graffiti in the workplace. The employer filed motions in limine challenging the witnesses' descriptions of the behavior as "dog" whistles and "KKK" crosses, citing the witnesses' imprecise deposition testimony about the meaning of these terms. The district court (per U.S. Magistrate Judge Nan Nolan) denied the motions. The court held that descriptions were admissible opinion testimony (FRE701), helpful in establishing whether the behavior was objectively and subjectively offensive, and supported by personal knowledge (FRE602) because the witnesses experienced the harassment first-hand.

Since it now appears to be a defense strategy (of dubious value) to force plaintiffs to defend each detail of the harassment twice before trial (at the summary judgment stage and at the pre-trial conference stage), the judge's call here I think was completely correct.

Tuesday, September 14, 2004

A victory for the EEOC in the Eleventh Circuit touches on the question of when, if at all, the government may be estopped from enforcing the civil rights laws when a private case has proceeded ahead of them. In EEOC v. Pemco Aeroplex, No. 03-10719 (11th Cir. Sept. 13, 2004), a 36-plaintiff, section 1981 race harassment case commenced in the district court in December of 1999 (the Thomas case). In September 2000, the Commission brought its own pattern-or-practice race harassment case against Pemco on behalf of 200 African-American employees at the same facility.

Both cases were assigned to the same U.S. district court judge and proceeded on parallel tracks. Despite the best efforts of the Commission to coordinate the proceedings, over the determined opposition of Pemco, the judge twice denied motions (without explanation) to formally consolidate the private and U.S. cases. So the Commission -- though allowed to attend the depositions, share discovery and attend trial -- found itself benched while the private suit proceeded. Fourteen of the plaintiffs were dismissed or settled, and the 22 other plaintiffs tried their case to a jury. In the end, all 22 lost because the jury found that the individual plaintiffs themselves had not personally suffered racial harassment. Armed with this verdict, the defendant then moved for summary judgment against the EEOC's pattern-or-practice case on grounds of res judicata . The judge granted the motion.

The panel opinion (signed by Judge Marcus, joined by Judge Wilson and U.S. District Court Judge Adrian G. Duplantier) identified the issue:

"The threshold issue in this case is whether the EEOC was in privity with the twenty-two private plaintiffs in the Thomas action. If they were not, then plainly the EEOC cannot be bound by the judgment in that case no matter how identical the claims or similar the evidence may have been. Simply put, before the doctrines of either res judicata or collateral estoppel may be asserted against a party, it must be established that the party in the second action was either a party in the previous action or a privy of the party in that action. This principle is particularly important where the party in the second action is a governmental agency reposed with independent statutory power to enforce the law and having independent interests not shared by a private party."

It held that privity, in the conventional sense, was absent between the parties. Only on a theory of "virtual representation" or the EEOC's "control" of the prior litigation could the defendant insist on preclusion, and the panel exhaustively analyzed and rejected both of these theories. It also emphasized the Commission's statutory mandate to enforce the civil rights laws independent of private litigation. Finally, the panel stressed Pemco's obstreperous litigation strategy:

"Pemco did its best to keep the EEOC out of the original litigation, objecting strenuously that allowing it in as a party would create an unduly burdensome trial and 'powerfully' prejudice the defendant. Now Pemco is trying to bind the EEOC to the adverse result in the suit that it successfully kept the EEOC from participating in. That result would, we think, set a grossly inequitable precedent: it would open the door for defendants to seek to keep the EEOC out of private litigation, and then try to preclude the EEOC -- which may have more resources and effective legal representation, and therefore a better chance of winning at trial, than private plaintiffs do -- from suing on its own."

Summary judgment was thus reversed.

Monday, September 13, 2004

As the circuits continue to divide over how to classify a superior employee as a plaintiff's "supervisor" (for purposes of Faragher/Ellerth), along comes the Ninth Circuit to remind us that the Supreme Court did not base vicarious liability for harassment entirely on supervisory status.

In Porter v. California Dep't of Corrections, No. 02-16537 (9th Cir. Sept. 10, 2004), a female prison guard (Porter) alleged sex harassment by two men. According to the summary judgment record, after some ugly sexual incidents with a sergeant (Wheeler), plaintiff asked her union steward and co-worker (DeSantis) to represent her at an interview with their lieutenant about the misconduct. DeSantis, in turn, pressured Porter for a sexual relationship over a period of several months. While Porter never gave into his invitations, neither did she did not turn DeSantis into the employer or the union. When DeSantis soon thereafter won a promotion over plaintiff, he refused her all desirable work assignments and transfers.

The court of appeals found that despite the sequence of events between DeSantis and Porter (harassment first, then promotion, followed by quid pro quo denial of transfers), Faragher/Ellerth still applied to his alleged acts of harassment:

In so holding, we recognize that DeSantis was not Porter's supervisor when he allegedly propositioned her. Despite the dearth of authority addressing this unusual circumstance, we see no compelling reason why it should justify summary judgment in favor of the CDC. See [Burlington Industries v.Ellerth, 524 U.S. 742, 762 (1998)] ("[A] supervisor, or [some] other person acting with the authority of the company, can cause [the] sort of injury [that leads to liability for quid pro quo harassment]." ) (emphasis added); id. at 759 ("If, in the unusual case . . . there is false impression that the actor was a supervisor, when he in fact was not, the victim's mistaken conclusion must be a reasonable one [in order for an employer to be liable vicariously for sexual harassment]."); Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1169 n.14 (9th Cir. 2003) ("[A quid pro quo harassor] need not be empowered to make the final determination with respect to the ultimate employment decisions. The power to make an effective recommendation is enough."); id. at 1174 ("Harassment in cases of implicit conditioning can be inferred only from the particular facts and circumstances of the case.") . . . .

Judge Tallman dissented from this portion of the opinion, finding that without contemporaneous supervisory authority, a mere co-worker's misconduct cannot attach vicariously to the employer.

Thursday, September 9, 2004

A perennial issue in EEO law is the treatment of pension payments for classes of employees (primarily women) whose service was cut short in the 1950s or 60s, owing to now-defunct discriminatory policies. The Eighth Circuit in Maki v. Allete, Inc., No. 03-3408 (8th Cir. Sept. 7, 2004) (available on the Eighth Circuit website) answers the question of when such claims accrue. Here, the pension plan benefits were based on years of continuous employment. The employer, prior to the enactment of Title VII, maintained discriminatory marriage and pregnancy policies that interfered with many women's service dates (including the four plaintiff, who retired in the 1980s).

Several times (in 1976, 1987 and 1998), the plan was amended to allow employees to "bridge" disconnected periods of service, but the disparities between men and women were not rectified. As the opinion noted, "[s]ince 1998, various female employees of the company have requested that the defendant amend its bridging provision to include women terminated due to the defendant's past discriminatory . . . policies. The defendant has repeatedly refused to do so, ultimately stating in April 2002, that after a 'careful review' by its Law Department, 'no other changes will be made' to its bridging provisions."

Although the district court dismissed the claim on timing grounds (on a Rule 12(b)(6) motion for failure to state a claim), the Eighth Circuit reversed. It rejected both sides preferred dates (defendant advocated the dates when the plan was amended without remedying the bias, while the plaintiffs claimed that each unequal check created a new cause of action). Instead, it held "that the statute of limitations began running when each individual plaintiff retired and her pension benefits vested. It is at this moment that the alleged discriminatory provision of the pension plan was applied to each plaintiff and the defendant could no longer amend the bridging provision to cure such discrimination."

Wednesday, September 8, 2004

In Lust v. Sealy, Inc., No. 03-3496 (7th Cir. Sept. 7, 2004), the Seventh Circuit holds that the due process standard applied to common-law, punitive damage awards under State Farm Automobile Insurance Co. v. Campbell, 123 S. Ct. 1513 (2003) -- in particular, a supposed 9:1 ceiling on punitive-to-actual damages -- does not pertain to the capped punitive damage awards provided by Congress under Title VII. The decision generally affirms a jury verdict and judgment in favor of plaintiff (though it remands for remittitur a $273,000 punitive damage award, to $150,000, on excessiveness grounds).

The employer argued that the $273,000 figure was excessive in comparison to the $27,000 emotional distress damages awarded plaintiff. The panel found (in an opinion signed by Judge Richard Posner) the due process analysis inapposite:

"The purpose of placing a constitutional ceiling on punitive damages is to protect defendants against outlandish awards, awards that are not only irrational in themselves because out of whack with any plausible conception of the social function of punitive damages but potentially catastrophic for the defendants subjected to them and, in prospect, a means of coercing settlement. That purpose falls out of the picture when the legislature has placed a tight cap on total, including punitive, damages and the courts honor the cap."

The opinion is also worth a read for its treatment of sundry objections to other rulings during and after trial. As to the district court's exclusion of the employer's exculpatory memos (authored by plaintiff's manager after she complained of discrimination), the court wrote that "There is no more facile a method of creating favorable evidence than writing a self-exculpatory note. Such notes have no warrants of reliability and allowing them to be placed in evidence would operate merely as a subsidy to the forest-products industry." And in response to the employer's argument that plaintiff failed to present sufficient evidence to support the verdict, the panel reiterated that the "if the plaintiff offers evidence of her own, as she did here, the jury is free to disbelieve the defendant's contrary evidence. There is no presumption that witnesses are truthful."

Finally, the panel expressly rejected the restrictive interpretation of Seventh Circuit law that the Fourth Circuit recently made reference to in Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277, 286-91 (4th Cir. 2004) (en banc) (holding that a subordinate's influence, even substantial influence, over the supervisor's decision is not enough to impute the discriminatory motives of the subordinate to the supervisor). This may, with luck, influence the decision of the Supreme Court to accept the Hill case, presently pending on a petition for writ of certiorari (No. 03-1443).

Tuesday, September 7, 2004

A word about "constructive discharge," in the wake of Pennsylvania State Police v. Suders, 124 S.Ct. 2342, 93 FEP 1473 (2004). The Supreme Court (in an 8-1 decision, with only Justice Thomas dissenting) introduced a freshly-minted standard for proving constructive discharge under Title VII: that the abusive working environment became so intolerable that her resignation qualified as a fitting response." This standard coincides with (or, from the employee's point of view, improves upon) the pre-existing law in this area. Justice Thomas alone would have imposed the additional requirements that the employer subject the employee "to an adverse employment action with the specific intent of forcing the employee to quit."

Now look at Honor v. Booz-Allen & Hamilton, Inc., No. 03-2076 (4th Cir. Sept. 2, 2004), which never once cross-cites Suders. Plaintiff left under the following circumstances:

"According to Honor, on November 16, 2001, C.G. Appleby, Booz Allen's General Counsel, told him, 'you are going to lose your job.' [JA 261.] Honor met with Appleby again on November 19, 2001; this time, Sam Strickland, Vice President of Operations at WTB and Honor's direct supervisor, also was present. Honor claims that Strickland Appleby refused to talk about Callahan's and Honor's strained relationship: '[We don't want to talk about Jean because we all agree that Jean has relationship problems, but we want to try to make you successful, John. We want you to be successful, and we just don't think that you can continue in your current role.' [JA 67.] At this same meeting Strickland encouraged Honor to explore other opportunities at the firm, including consulting. [JA 69, 261.]"

Coincidentally or not, his job title was eliminated from the organization at this time. The handwriting certainly seemed to be on the wall. Yet the Fourth Circuit, affirming summary judgment, cited the following standard from its pre-Suders case law: "An employee is entitled to relief absent a formal discharge, 'if an employer deliberately makes the working conditions intolerable in an effort to induce the employee to quit'" (citing Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1353- 54 (4th Cir. 1995)). So told, the Court erroneously adopts Justice Thomas's dissent.

Going forward, plaintiffs' counsel everywhere must do a better job of educating the judiciary about the effect of Suders beyond the hostile work environment arena.

Friday, September 3, 2004

A word of cheer for class actions from an unlikely quarter: the Eleventh Circuit. In Klay v. Humana, Inc., No. 02-16333 (11th Cir. Sept. 1, 2004), the court affirmed -- in a Fed. R. Civ. P. 23(f) interlocutory appeal -- certification of a Rule 23(b)(3) damages action by a class (as described in the lead sentence of the opinion) of "almost all doctors versus almost all major health maintenance organizations." The claims sound in RICO and, to summarize grossly, allege that the defendant HMOs systematically undercompensated doctors in and out of the network, by rigging the billing system and understating the number of patients served. On appeal, defendants conceded the Rule 23(a) elements (numerosity, commonality, typicality, adequacy), but challenged predominance and superiority under Rule 23(b)(3).

While rejecting class certification of state-law contract and statutory claims, the Eleventh Circuit substantially affirmed the RICO class. The opinion signed by Judge Tjoflat deals a blow to several defense arguments -- in fashion elsewhere (notably the Fifth and Seventh Circuits) -- denigrating the efficacy and fairness of the class mechanism. First, it found that the alleged nationwide conspiracy to underpay doctors formed "the very heart of the plaintiff's RICO claims," and confined the circuit's authority denying class certification in civil rights cases (Rutstein v. Avis Rent-a-Car Sys., 211 F.3d 1228 (11th Cir. 2000) and Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999 (11th Cir. 1997)) to situations where "individuals were seeking to litigate separate discrimination claims that arose from a variety of individual incidents together in same class action simply because they alleged that the acts of discrimination occurred pursuant to corporate policies." (This language may turn out to help a civil rights plaintiff in the future who challenges a core practice alleged to discriminate systemically.) Second, it endorsed the proposition that individualized damages do not impede certification where a formula, statistical analysis or other method facilitates the calculations. Third, it reaffirmed the age-old principle that the class vehicle balances the litigation advantage wielded by major defendants, "especially" (the court tartly noted) "when the defendants are corporate behemoths with a demonstrated willingness and proclivity for drawing out legal proceedings for as long as humanly possible and burying their opponents in paperwork and filings." Finally, it rejoined the reasoning of other circuits that a high-stakes class case may extort a major industry into premature capitulation:

"We have nothing but the defendants' conclusory, self-serving speculations to support their claim that this trial could devastate the managed care industry. . . . More importantly, however, if their fears are truly justified, the defendants can blame no one but themselves. It would be unjust to allow corporations to engage in rampant and systematic wrongdoing, and then allow them to avoid a class action because the consequences of being held accountable for their misdeeds would be financially ruinous. We are courts of justice, and can give the defendants only that which they deserve; if they wish special favors such as protection from high-though deserved-verdicts, they must turn to Congress."

I have only skimmed the surface of this opinion, and commend it for perusal to all class action litigators fighting to get the federal courts back on track.

Thursday, September 2, 2004

Need more proof that special interrogatories at trial are a snare for plaintiffs? In Wilson v. Brinker Int'l, Inc., No. 03-1967 (8th Cir. Sept. 1, 2004), the plaintiff (a cook at a Macaroni Grill restaurant) alleged a hostile work environment involving a co-worker under Title VII and the Minnesota Human Rights Act. A jury returned a verdict for plaintiff, returning a nominal compensatory award and $163,400 punitive damages.

A persistent issue before, during and after the trial was whether plaintiff's claim was time-barred for failure to file a charge within 300 days of the last act of harassment:

"At the jury instruction conference and again at the close of the defendants' case, Wilson moved for judgment as a matter of law on the issue of timeliness. The district court denied her motions and decided to send the fact-related issues surrounding the statute of limitations defense to the jury. Jury Questions Nos. 4 and 6, respectively, asked, 'Did any act of harassment occur after October 2, 1998?' and 'Did any act of harassment occur after July 28, 1998?' Wilson did not object to the substance of the instructions but rather opposed their submission to the jury. The jury answered these questions in the negative, and on appeal Wilson reasserts her argument that no reasonable fact-finder could have concluded that no act contributing to her sexual harassment claim occurred within the relevant time frame."

Faced with the "no" answers, the court entered judgment as a matter of law in favor of the defendant on the limitations defense.

Plaintiff raised every argument conceivable to revive the verdict, without success. First, the panel affirmed the district court's decision to submit the timing issue to the jury. Although the plaintiff contended that the trial record revealed that one or more harassing events occurred within the 300-day period (per Nat'l R.R. Passenger Corp. v. Morgan) -- thus warranting judgment as a matter of law on the limitations issue -- the court found that the evidence of the timing of the harassment was contested and relied substantially on the plaintiff's own testimony. "[B]ecause Wilson is an interested party, her testimony alone does merit entry of judgment as a matter of law in her favor, because the jury was not required to accept it." (Citing Reeves at the plaintiff -- ouch!) Second, she argued that the verdict forms erroneously appeared to place the burden of the affirmative defense on the plaintiff. But the court found that plaintiff waived objections as to the form of the questions. And finally, notwithstanding the waiver, the court concluded that the prevailing circuit law placed the burden of establishing a continuing violation on the plaintiff, not the defendant.

Lesson: Above all, avoid special interrogatories; be prepared with your own drafts if the court seems determined to serve them.

Wednesday, September 1, 2004

Some weeks ago (on July 13, 2004), this space featured (and criticized here) a Fourth Circuit decision, Rohan v. Networks Presentations LLC, 375 F.3d 266, 15 A.D. Cases 1313 (4th Cir. 2004), in which the panel majority found that a mentally-ill actress in a road-show production was not "disabled" under the ADA because she was not substantially limited in the major life activity of "interacting with others." Faced with comparable facts but a different litigation strategy, the Third Circuit last week reversed summary judgment in Williams v. Philadelphia Housing Authority Police Dept., No. 03-1158 (3d Cir. Aug. 26, 2004) . It found a genuine issue of material fact over whether the plaintiff (a security officer suffering major depression) was limited in the major life activity of working.

The plaintiff had nearly 24 years of service in the force before depression overtook him. One day, he snapped at a superior officer and was immediately suspended without pay. The same day, he called a counselor and issued dark threats about "going postal." Plaintiff then took a leave of absence. Eventually, he was cleared to return to work on restricted duty -- importantly, that in no event should he carry a weapon while he was still under psychiatric treatment. But the department refused to reinstate him under this condition. It ordered plaintiff either to take extended medical leave or accept termination. Plaintiff took no action and was fired.

Williams sued, claiming that alleges that department failed its duty under the ADA to reasonably accommodate him (failing to return him to restricted duty) and violating the interactive process by not responding in good faith to his requests for accommodations. The district court granted summary judgment on the ground that Williams was not "disabled" within the meaning of the ADA because he was not substantially limited in the major life activity of working.

In a convincing analysis, the panel reversed the district court, finding (under the prevailing EEOC regulation, 29 U.S.C. § 1630.2(j)(3)(i)) that plaintiff was restricted a "class of jobs," defined generally as law enforcement:

"The District Court did not address whether Williams was significantly restricted in his ability to perform a class of jobs because of his depression and the resulting inability to carry a firearm. A critical question was thus left unanswered: Compared to an average person living in the same geographical region as Williams with similar training, knowledge, skills, and abilities, was Williams substantially restricted in his ability to perform jobs in law enforcement? We conclude that the record would permit a reasonable jury to conclude that he was."

It remains to be seen, after Sutton and Toyota Motors, whether the Supreme Court will endorse the identification of work itself as a "major life activity." But on the prevailing law (and I am aware of no circuit that has ruled against plaintiffs on this point), the Third Circuit grasped the obvious point that the Fourth Circuit missed: that a plaintiff such as Williams should not be dismissed on the ground that he or she is not "disabled."

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