October 2004

| Oct 18, 2004 | Daily Developments in EEO Law |

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

October 2004

Friday, October 29, 2004

Monday, I wrote about a federal employee plaintiff who inadvertently backed into a situation (while representing herself pro se ) that deprived any federal court of subject matter jurisdiction over her claims, and how the Sixth Circuit rescued her (Valentine-Johnson v. Roche, No. 03-1262 (6th Cir. Oct. 22, 2004)). Bookending the week, then, here’s a case from the Eleventh Circuit where the plaintiff — likewise bringing claims under Title VII while appealing her termination to the Merit System Protection Board (MSPB) — made the same blunder and lost her claim. In Chappell v. Chao, No. 03-14750 (11th Cir. Oct. 28, 2004) , the panel found no grounds to relieve the plaintiff from the burden (in a “mixed case”) to either proceed in federal district court or seek Federal Circuit review of the MSPB decision:

“Because ‘the issues of a mixed case are tied together for resolution at the same time,. . . . and because the Federal Circuit does not have jurisdiction over appeals of mixed cases, see 5 U.S.C. 7703(b)(1), federal district court is the only forum in which a federal employee may seek judicial review of a mixed case after a final order from the MSPB. We are further persuaded by the D.C. Circuit and the Eighth Circuit that it necessarily follows from this statutory scheme that a federal employee who wants to preserve both discrimination and non-discrimination claims after a final order from the MSPB must do so by bringing all his related claims in federal district court. Accordingly, an employee who chooses to appeal an adverse action to the Federal Circuit waives his right to pursue not only any discrimination claims he raised before the MSPB, but also any other discrimination claims arising out of the same facts.”

Without any of the extenuating circumstances warranting a departure in Valentine-Johnson (plaintiff had counsel, and had not been misinformed about her options), the lower court dismissal for lack of subject matter jurisdiction was affirmed (but on the alternative ground that plaintiff waived the claim by proceeding in the Federal Circuit).

Thursday, October 28, 2004

A rare employment discrimination, pattern-or-practice trial ends in a judgment for plaintiffs. In Bates v. United Parcel Service, Inc., No. C99-2216 TEH (N.D. Cal. Oct. 28, 2004), the deaf and hard-of-hearing plaintiff class challenged (under the ADA and the California FEHA) the UPS policy applying the U.S. Department Of Transportation hearing standard to all of its package-car driver positions, despite that many trucks in the fleet did not fall within the weight class covered by the regulations. The opinion has all sorts of interesting background about the courier business (the judge got to go on a “ride-along” with package deliverers; awesome detail about UPS trucks). The judge found:

“It is undisputed in this case that UPS’s application of the DOT hearing standard prevents any person who fails that standard from becoming a UPS package-car driver. UPS’s policy categorically excludes all deaf individuals, including those who, at the very least, can make a sufficient showing of their qualifications to proceed to the next steps in UPS’s driver application process. UPS does not deny that failure to pass the DOT hearing standard is a per se bar to those seeking to become package-car drivers. Nor does UPS deny that it does not individually assess the driving capabilities and other qualifications of driver applicants who fail the DOT hearing standard. Thus, it is clear that UPS has a qualification standard that screens out all deaf individuals, and it is therefore equally clear that this standard would screen out any deaf individual who could perform the essential functions of the job, with or without reasonable accommodation, and was therefore qualified.”

The court rejected as unproven by UPS one “essential function” advanced by defendant (the need for DOT certification), and found that the UPS policy was not tailored to two other “essential functions” (the ability to communicate effectively, and the ability to drive safely). It also denied UPS’s undue hardship affirmative defense:

“UPS has hardly demonstrated that the accommodations regarding safe driving or effective communication suggested in this order would pose an undue hardship to the company’s operations, especially since the parties do not dispute that UPS is a sophisticated employer with well-developed, well-staffed systems for handling human resources and engineering issues. Clearly, UPS will have to make some changes to accommodate deaf drivers, but the company simply has not established that those changes will pose an undue hardship.”

The court ordered UPS to stop enforcing its hearing policy and develop a method of individually assessing drivers for safety. For those interested in class action litigation, there is also an extended analysis of how the Teamsters model plays out in the proof of a private class action.

Wednesday, October 27, 2004

Though we don’t often cover benefits cases at this site, employment lawyers might take a general interest in Felix v. Lucent Technologies, Inc., No. 03-6112 (10th Cir. Oct. 26, 2004) , a joint 457-plaintiff case claiming that the employer defrauded the employees out of early retirement benefits.

Plaintiffs alleged that the employer offered its senior-most employees in its Oklahoma City Works (“OKCW”) an early retirement option, which it characterized as a one-time, take-it-or-leave-it benefit. All of the plaintiffs accepted. Then, six months later, the plant was sold to a Canadian company. Prior to the completion of the deal, Lucent again offered early retirement:

“Contrary to the representations made by Lucent, on October 1, 2001, Lucent agreed to pay retirement-eligible . . . employees still on the OKCW roll benefits identical to those paid to the plaintiffs plus an additional payment of a ‘special one-time pension benefit’ by Lucent of $15,000. . . .

“Lucent intentionally misrepresented to each plaintiff the nature of the offer as described . . . above with the intent to induce each plaintiff to rely upon such misrepresentations and to change their respective positions to their detriment. Rather than a ‘one-time offer’, Lucent knew at the time such misrepresentations were made that additional ‘sweeteners’ would be made to reduce the number of senior employees in the OKCW workforce.”

The case was removed from Oklahoma state court on ERISA preemption grounds, and the federal district court granted the removal petition. Plaintiffs appealed the removal.

On appeal, the panel distinguished at the outset between “conflict preemption” of a state law claim under § 514 of ERISA and “complete preemption” under § 502(a) of ERISA. “[A] state law [claim] ‘relates to’ an ERISA plan, and is thus preempted under § 514, ‘if it has a connection with or reference to such a plan.’ Shaw v. Delta Airlines, Inc., 463 U.S. 85, 97 (1983).” Conflict preemption is not a basis for removal; it is but an affirmative defense that may be raised in a state court proceeding. On the other hand, complete preemption does support removal jurisdiction, and occurs “only if the claim is preempted by ERISA [under § 514] and within the scope of ERISA’s civil enforcement provisions [§ 502(a)]” (quoting Carland v. Metropolitan Life Insurance Co., 935 F.2d 1114, 1118-19 (10th Cir. 1991) (emphasis added)).

The court then analyzed plaintiffs’ claim under this framework. It found that plaintiffs lacked standing as “participants” under ERISA § 502(a)(1) because they retired, and ceased employment, before they could have received the additional $15,000 credit. The panel also considered and rejected the holding of five other circuits (the First, Second, Fifth, Sixth and Eighth) conferring “participant” status on employees who claim they would have received the benefit “but for” the employer’s wrongful action. “The nature of their claim is not that Defendants improperly withheld vested benefits owed to them, but rather that they should receive damages for the fraud they suffered. . . . ERISA provides no cause of action to non-participants who claim they were defrauded out of pension benefits in violation of common law fraud principles.”

In a disquieting note, the court observed that “It is true that our opinion leaves open the uncomfortable possibility that Plaintiffs may lack standing to sue under ERISA, but will then be preempted in state court under § 514 from asserting a state claim, leaving them with no remedy. Although this is a valid concern, we have not found it to be a concern of the federal judiciary.” Thus, “In conclusion, we refuse to second-guess Congress’ policy choices in ERISA, and we hold that Plaintiffs are not ‘participants’ so as to bring their fraud claims within the reach of § 502(a)(1). We thus hold that the district court erred in finding complete preemption. Upon remand, the state court will be free to consider dismissal under § 514’s conflict preemption provision, but that issue is not properly before us.”

The panel also rejected complete preemption arguments under the Labor Management Relations Act, 29 U.S.C. § 185(a), and §§ 7-8 of the National Labor Relations Act.

Tuesday, October 26, 2004

More public pension litigation leads to a summary judgment for plaintiffs. In Overlie v. Owatonna Independent school District No. 761, No. CIV. 03-5288DSD (D. Minn. Oct. 21, 2004) (no public link but available on Westlaw). The school district’s early retirement incentive program (“ERIP”) for staff age 55-65 paid declining benefits as teachers aged. the ERIP contemplated paying a lump sum to participants; critically, although it allowed a retiree to opt for annual installments, it did not specify when such payments would commence or terminate.

The district court rejected the defendant’s standing and limitations challenges, and found that the benefit plan did not meet safe harbor conditions of the Older Workers’ Benefit Protection Act of 1990 (“OWBPA”): “The ERIP was not consistent with the purposes of the ADEA, however, because it results in arbitrary age discrimination. In particular, the ERIP offers incentive benefits that differ in amount for eligible employees based solely on the retiree’s age.”

(In an interesting sidenote, the court also confronted the district’s demand for contribution against the teacher’s union, on the ground that the union negotiated and ratified the terms of the early retirement. In a thoroughly-reasoned analysis, the court found no cause of action for contribution, either implied under the ADEA or fashioned under federal common law.)

Monday, October 25, 2004

My Ninth Circuit case summaries are now up-to-date . Only the Tenth Circuit to go!

The Sixth Circuit opined last week upon a little-regarded corner of EEO law: under what circumstances a federal employee may be equitably relieved of administrative exhaustion on account of relying upon innocent misinformation from a government agent. In Valentine-Johnson v. Roche, No. 03-1262 (6th Cir. Oct. 22, 2004) , a federal employee proceeded with a “mixed case” before the Merit System Protection Board (MSPB), alleging both a violation of her civil service rights (under the Civil Service Reform Act) and multiple violations of Title VII. The tangle that followed is radically summarized below.

In 1995, Ms. Valentine-Johnson (who was uncounselled throughout the proceedings) and her agency, the Air Force, entered a partial settlement allowing her to withdraw her MSPB challenge to her termination, without prejudice to her refiling it after the EEOC completed its work on the Title VII claim. At the end of 1995, she directed the EEOC (which has the authority to adjudicate federal employee claims) to continue proceeding on her Title VII discrimination and retaliation claims. The EEOC ultimately denied those claims, and conferred a right-to-sue letter.

Plaintiff then filed a suit in federal district court under Title VII and refiled her termination claim before the MSPB, as allowed by the settlement agreement. But the Air Force challenged the MSPB refiling as jurisdictionally barred by the pending Title VII suit. Here, critically, came the misinformation: the MSPB administrative judge told the Ms. Valentine-Johnson that she could terminate the MSPB appeal and thereby exhaust her civil service remedies, allowing her Title VII claim to proceed. But when the plaintiff returned to federal district court, the Air Force moved for summary judgment on the ground that her premature dismissal of the MSPB action fell short of exhausting her remedies. The district court substantially dismissed her claims on this ground.

Yet the court of appeals found Ms. Valentine-Johnson bamboozled both by the administrative judge and by the Air Force’s attempt to mousetrap the plaintiff into prematurely dismissing her administrative claims. Under this “unique confluence” of circumstances (influenced predominantly, it appears, the agency’s seeming abuse of a pro se litigant), the Sixth Circuit held that the plaintiff was equitably relieved of her duty to exhaust.

Friday, October 22, 2004

How cheering! On one day, the Seventh Circuit publishes two opinions reversing summary judgments in employment discrimination cases.

In Olson v. Northern FS, Inc., No. 04-1102 (7th Cir. Oct. 22, 2004), an ADEA case, the employee (a crop salesman) had 41 years in the company. He was replaced summarily with a 22-year-old with no prior experience, who suffered (by the company’s admission) “substandard” productivity. The plaintiff’s supervisor once told him (five months before his separation) that his age (59) was hurting him in the industry. The district court found this remark insufficiently direct to warrant a trial, but the Seventh Circuit reversed, holding that the entire record presented a genuine issue of material fact about pretext.

Meanwhile, in Firestone v. Parkview Health System, Inc., No. 03-1909 (7th Cir. Oct. 22, 2004), plaintiff filed a Title VII retaliation claim. Plaintiff (a recently-converted Catholic) took flack from her supervisor about her religion, and plaintiff in turn criticized her boss’s sexual orientation to a co-worker (in an after-hours conversation that, following the normal gravitational force of office back-chat, arced back to the supervisor). The conflict between boss and subordinate pitched over the plaintiff’s performance evaluation. Plaintiff, believing the evaluation to be trained by religious prejudice, complained to HR. The employer subsequently placed plaintiff on leave — citing the plaintiff’s off-hour comments against her boss’s sexual orientation as violating the company’s anti-bias policy — and told her to use her vacation time look elsewhere in the company for a different job. Because the company could not offer her a comparable job, she was eventually terminated. On this record, the panel found genuine issues of material fact about whether plaintiff (1) engaged in a protected activity (complaining about her job evaluation); (2) endured an adverse job action (removal from work, with no offer to return to a comparable position); (3) identified similarly-situated employees (her supervisor and two other employees were not disciplined under the anti-bias policy that plaintiff was charged with violating, despite that they had arguably committed the same wrongs); and (4) established pretext (the employer’s explanation of the above-events was critically under-documented and inconsistent, even in the briefing for summary judgment).

Thursday, October 21, 2004

Here’s a nice issue of federal jurisdiction awaiting future employment-law arbitration cases: how to measure the jurisdictional amount-in-controversy that applies to a motion to vacate an arbitrator’s award under the Federal Arbitration Act? The Ninth Circuit in Theis Research v. Brown & Bain, No. 02-16839 (9th Cir. Oct. 20, 2004) was presented with a case where the demand was $200 million (in a legal malpractice case) and the award was $0. Plaintiff sought to vacate the award and commence the case anew as a civil action. Defendant cross-moved to confirm the award.

The diversity jurisdiction essential to federal court review of this award depended on whether the amount in controversy exceeded $75,000 per 28 U.S.C. § 1332(a):

“The question presented to us thus boils down to whether the $200 million Theis sought to recover by its complaint is the amount in controversy under 28 U.S.C. § 1332(a), or whether the amount in controversy must be measured by the zero dollar arbitration award Theis sought to vacate. We are satisfied that the amount in controversy is the amount Theis sought to recover by its complaint.”

The Ninth Circuit noted that while other circuits had already considered this issue, the prior “cases have turned upon whether the party seeking to vacate an arbitration award also sought to reopen the arbitration.” No such demand had been made here. Nevertheless, “[Plaintiff] Theis sought to obtain by its district court complaint substantially what it had sought to obtain in the arbitration. Theis simply chose to ‘reopen’ its claims in the district court rather than in arbitration. The amount in controversy requirement of 28 U.S.C. § 1332(a) was satisfied.”

Wednesday, October 20, 2004

In Shook v. Bd. of County Comm’rs of County of El Paso, No. 03-1397 (10th Cir. Oct. 18, 2004), a prisoner class action, a Tenth Circuit panel split over the issue of whether manageability is a consideration in the certification of Rule 23(b)(2) class.

While Rule 23(b)(3) — used principally for certification of damage actions — expressly mandates a manageability finding by the district court, Rule 23(b)(2) certification for injunctive relief does not. Over time, though, some courts (notably the Fourth Circuit in Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 757 (4th Cir. 1998)) imported manageability as an implicit requirement even in (b)(2) cases. (The Fifth and Ninth Circuit have, on the other hand, expressly rejected this suggestion. Forbush v. J.C. Penney Co., Inc., 994 F.2d 1101, 1105 (5th Cir. 1993); Elliott v. Weinberger, 564 F.2d 1219, 1229 (9th Cir. 1977), aff’d in part sub nom. Califano v. Yamasaki , 442 U.S. 682 (1979).)

In Shook, the panel majority (authored by Judge Tymkovich, joined by Judge Barrett), reversed denial of certification a putative class action challenging systematic lack of access to mental health care at the county jail. The entire panel concurred that the district court erred as a matter of law in his interpretation of Prisoner Litigation Reform Act, 42 U.S.C. § 1997e(a), and its effect on Rule 23. The majority also held that while the district court abused its discretion in applying the Rule 23(b)(2) factors to the record, it did not err legally in considering manageability as an additional factor. Assaying the competing circuit authority, the majority sided with the Fourth Circuit, noting that “[t]he vehicle of class action litigation must ultimately satisfy practical as well as purely legal considerations.”

Chief Judge Tacha, concurring in part, dissented from the manageability holding. “The majority’s reading collapses the differences between a Rule 23(b)(1), (b)(2) and (b)(3) class, allowing a district court to consider any criteria under any of the subsections for any type of class. Such a reading is not in line with the structure of Rule 23(b) and is thus contrary to standard statutory construction.”

And thus another Rule 23 class issue is cued up for certiorari.

Tuesday, October 19, 2004

Another reminder how special jury interrogatories can be a trap for plaintiffs, even when plaintiffs prevail at trial. In Miles v. State of Indiana, No. 02-4295 (7th Cir. Oct. 18, 2004), plaintiff (a First Sergeant) won a $50,000 verdict in a retaliation case, while losing his underlying racial discrimination case. Plaintiff then sought an injunction post-trial for a promotion or, alternatively, front pay — on the ground that he had been retaliatory reassigned to a job in the Records Division, denied a promotion and been stripped of supervisory authority. The district court only met the plaintiff half-way, ordering that plaintiff’s supervisory duties be restored but denying the additional relief. (Here, I skip over other injunctive issues raised by this appeal.)

The Seventh Circuit affirmed, finding that the jury verdict left itself open to the district court’s interpretation: “In finding for Officer Miles on the retaliation claim, the jury answered in the affirmative a verdict form that asked whether Officer Miles had ‘proven that his complaints of discrimination were, more likely than not, a motivating factor in the decision of the defendant, State of Indiana, to transfer him to the Records Division or fail to promote him?'” The district court found that the interrogatory ambiguous (as the jury could have concluded that the denial of a promotion, the reassignment to the Records Division or both), and — upon conducting its own hearing of the witnesses — held that the retaliation finding was most likely traceable only to the reassignment claim, not the promotion claim. Thus the more limited injunction was tailored to the violation the district court believed the jury had found.

While this result might be supported on an abuse of discretion standard, a more precisely drawn special interrogatory (in hindsight) would have minimized the scope of discretion and cut out the years of additional, ultimately fruitless litigation.

Monday, October 18, 2004

We now appear to have a genuine split in the circuits concerning the effect of Desert Palace v. Costa upon the order of proof in employment discrimination cases.

Earlier this year, in Rachid v. Jack In The Box, Inc., 376 F.3d 305, 93 FEP 1761 (5th Cir. 2004), the Fifth Circuit held that in light of Costa, it would abandon the requirement that a plaintiff furnish direct evidence of discrimination to trigger a mixed-motives analysis in a disparate treatment claim. Oddly enough, it so held while reviewing summary judgment in an ADEA case, a statute not amended by section 107 of the Civil Rights Act of 1991 (42 U.S.C. § 2000e-2(m)). The Fifth Circuit concluded that Costa‘s critique and rejection of the direct-indirect dichotomy of proof applied with equal force to other federal employment discrimination statutes.

Now comes the Eighth Circuit, in Griffin v. City of Des Moines, No. 03-3266 (8th Cir. Oct. 15, 2004), holding 2-1 that Desert Palace has no effect on the direct-indirect division long imposed by the circuit in summary judgment cases. It specifically disapproved a widely-cited district court opinion on this subject, Dunbar v. Pepsi Cola General Bottlers of Iowa, Inc., 285 F. Supp. 2d 1180, 1197 (N.D. Iowa 2003) (Bennett, J.), which postulated that the advent of Costa demanded reconsideration (though not outright abrogation) of the McDonnell Douglas standard. The court held:

At the summary judgment stage, the issue is whether the plaintiff has sufficient evidence that unlawful discrimination was a motivating factor in the defendant’s adverse employment action. If so, the presence of additional legitimate motives will not entitle the defendant to summary judgment. Therefore, evidence of additional motives, and the question whether the presence of mixed motives defeats all or some part of plaintiff’s claim, are trial issues, not summary judgment issues. Thus, Desert Palace, a decision in which the Supreme Court decided only a mixed motive jury instruction issue, is an inherently unreliable basis for district courts to begin ignoring this Circuit’s controlling summary judgment precedents.

By coincidence, the third panelist was a visiting district court judge from the District of Minnesota, Judge Paul A. Magnuson, who himself had published a series of summary judgment decisions urging wholesale abandonment of McDonnell Douglas in light of Costa. Here, while concurring in the result — the merits themselves apparently fairly modest — Judge Magnuson authored a sustained reappraisal of the pretext method of proof:

“There is no rational connection between the type of evidence presented by a plaintiff and whether a case involves single or mixed-motives. The language and legislative history of the Civil Rights Act of 1991 do not support a distinction between direct and indirect evidence. Circumstantial evidence is as equally persuasive as direct evidence in proving discrimination. Moreover, maintaining a distinction between direct and indirect evidence creates a legal fiction. Even assuming that Congress intended to create a dichotomy between single motive and mixed-motive cases, a plaintiff that prevails under either theory obtains the same relief for a defendant’s liability under Title VII. There is no need for a plaintiff to prove the more onerous single-motive case, when all that Title VII requires a plaintiff to prove is that discrimination was a motivating factor in the employment decision.”

Judge Magnuson’s concurring opinion might be valuable persuasive authority to plaintiffs’ counsel arguing the Costa issue in other circuits.

Thursday, October 14, 2004

In Transport Workers Union of America, Local 100, AFL-CIO v. New York City Transit Authority, No. 02 Civ.7659 (SAS) (S.D.N.Y. Oct. 12, 2004) (not available publically, but on Westlaw), U.S. District Court Judge Shira A. Scheindlin entered a declaratory judgment of surprising depth and clarity on the ADA’s little-noted prohibition against medical inquiries. This section provides that:

“A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

42 U.S.C. § 12112(d)(4)(A). The decision applied a recent Second Circuit precedent, Conroy v. New York State Department of Correctional Services , 333 F.3d 88 (2d Cir. 2003), defining broadly the meaning of “inquiries” under this section.

The union brought its case under ADA Title I (employers) and Title II (public entities). (See 28 C.F.R. § 35.140(b)(1), adopting under Title II the requirements of Title I.) Here, the union challenged a work rule in force since 1982 (incorporated by successive collective bargaining agreements) demanding that employees who take sick leave call in advance of their shift, fill out a “sick form” (stating the “nature of [the] disability” which caused him or her to be “unfit for work on account of illness during this period”) and (in some cases) submit medical documentation.

After a bench trial, the court affirmed the business necessity of the inquiries, but only in the specific and tailored instances of employees who (1) have been placed on a “sick leave control list” (i.e. sick leave abusers), or (2) occupy safety-sensitive positions (in particular, bur drivers). For the vast bulk of the transit authority workforce, the court found no rampant abuse of sick leave or other compelling need to enforce the rule across the board. The court also turned back a laches defense, finding that union “members should not be penalized for the understandable failure of their lawyers to anticipate this novel and imaginative application of the ADA,” and finding further that the employer was not prejudiced by the delay.

Wednesday, October 13, 2004

Plaintiff’s counsel: has it ever botherd you that your client has to spill every detail of her employment discrimination claim in an EEOC charge (and eventually her complaint), on pain of waiver, while the employer need only file rote affirmative defenses in return? Well, on my local federal bench, U.S. District Court Judge Milton Shadur doesn’t recognize such cursory pleading in an answer. In a recent opinion,Hsieh v. R.R. Donnelley & Sons , No. 04-cv-5956 (N.D. Ill. Oct. 1, 2004) (available at the N.D. Ill. website), the judge sua sponte struck several such defenses in an employment discrimination case. With regard to the typical objection that plaintiff’s claims were barred “to the extent” that they were not identified in plaintiff’s charge, the district court found this defense “wholly uninformative,” and struck the defense with the instruction that defendant “must expressly identify those assertedly nonviable claims by a prompt filing.” Likewise, a limitations defense was stricken on the ground that the complaint recited events within 300 days of the filing of the charge, so pleading of such a “boilerplate assertion must be viewed as frivolous.”

Tuesday, October 12, 2004

The Supreme Court did not grant cert in any employment cases today. But it did grant review of two U.S. Courts of Appeals decisions reaching differing results in deciding whether Congress extended pendent-party jurisdiction under 28 U.S.C. § 1367 (the supplemental jurisdiction statute) to plaintiffs in a multi-plaintiff or class case who do not independently meet the amount-in-controversy requirement (i.e., in excess of $75,000). Allapatthah Services, Inc. v. Exxon Corp., 333 F.3d 1248 (11th Cir. 2003) (finding supplemental jurisdiction in a class action over claims of absent class members that did not meet the amount in controversy); Rosario Ortega v. Star-Kist Foods, Inc., 370 F.3d 124 (1st Cir. 2004) (finding no jurisdiction, in multi-plaintiff personal injury case, over individual plaintiffs whose claims did not exceed $75,000). This issue is of particular interest to plaintiff class action litigators, who presently (at least in some circuits) rely on the low-stake value of each absent class member’s claim to avoid removal from state to federal court. A decision in favor of liberalizing pendent party jurisdiction (the position taken in the Eleventh Circuit) will make such actions more susceptible to removal.

Monday, October 11, 2004

What happens on the uncommon occasion that an employer fails to present a legitimate, non-discriminatory account of a challenged business decision in an employment discrimination case? The dogmatic answer is entry of summary judgment for the employee. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The more likely answer at the pre-trial stage, though, is denial of summary judgment.

A recent instance occurred in Regan v. Grill Concepts-D.C., No. CIV.A.02-884 AK (D.D.C. Oct. 5, 2004) (no link at present, but will be published in F. Supp. 2d). The employer there was faced with cross-claims of harassment by male and female co-workers. One of the male plaintiff’s claims was that the female co-worker’s claims were investigated more seriously than his own. Here, the defendant dropped the ball and argued that the employee’s termination was justified by business reasons. The Court observed:

“The Plaintiff is not alleging that he was terminated from his employment because of his gender. Rather, he is alleging that his claims of discrimination were handled differently than those of female employees. To counter this assertion, the Defendant must show that the Grill Concepts’ varied handling of the employees’ complaints was gender neutral. The Defendant’s argument that the decision to terminate Regan’s employment was gender neutral, while potentially appropriate in countering Plaintiff’s retaliation claim, is not a relevant response to his gender discrimination claim.”

Hence, the employer was denied summary judgment because of its defense counsel’s lapse.

Friday, October 8, 2004

There is a widening split in the circuits over an arcane but potentially critical issue under the ADA: whether “interacting with others” constitutes a “major life activity”? Some courts have embraced (or at least flirted with) the concept. See, e.g., MX Group, Inc. v. City of Covington, 293 F.3d 326, (6th Cir. 2002) (in Title II ADA case, finding that “functioning socially” constitutes a “major life function”); Emerson v. Northern States Power Co., 256 F.3d 506, 511-12 (7th Cir.2001) (in a brain-injury case, holding that “memory, concentration, and interacting with others [are] activities that feed into the major life activities of learning and working”); McAlindin v. County of San Diego, 192 F.3d 1226, 1234-1235 (9th Cir.1999) (interacting with others constitutes a major life activity; “a plaintiff must show that his ‘relations with others were characterized on a regular basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or failure to communicate when necessary'”), cert. denied, 530 U.S. 1243 (2000).

Other courts have been skeptical of, or outright rejected, the concept. See, e.g., Davis v. Univ. of North Carolina, 263 F.3d 95, 101 n.4 (4th Cir.2001) (expressing “some doubt” as to whether “ability to get along with others” is a major life activity); Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 15 (1st Cir.1997) (“[t]he concept of ‘ability to get along with others’ is remarkably elastic, perhaps so much as to make it unworkable as a definition” ). The Eighth Circuit has even reported competing panel decisions on this issue. Compare Amir v. St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir.1999) (“it is questionable” whether the “ability to get along with others” is a “major life activity”), with Moysis v. DTG Datanet, 278 F.3d 819, 825 (8th Cir.2002) (accepting interacting with others as activity that “feed[s] into the major life activities of learning and working”), and Heisler v. Metropolitan Council , 339 F.3d 622, 628-29 (8th Cir. 2003) (assuming without deciding that interacting with others is a major life activity).

This week, the Second Circuit weighed in on this issue in Jacques v. DiMarzio, Inc., No. 03-9080 (2d Cir. Oct. 5, 2004) (available on the Second Circuit website) and found an intermediate position in the debate. In this case the plaintiff, terminated owing to his outbursts at work, pursued claims under each of the three liability sections of Title I: 42 U.S.C. § 12102(2)(A) (disability discrimination); § 12102(2)(B) (“record of” disability); and § 12102(2)(C) (“regarded as” disabled). Plaintiff was allowed only to try the last of these, and he was awarded $190,000 in damages ($50,000 compensatory and punitive, $140,000 back pay and pre-judgment interest). The jury was charged as follows:

“Relevant to this case, a person is considered ‘disabled’ under the Disabilities Act if she is regarded or perceived as having a mental impairment that substantially limits a major life activity. The ability to interact with others is a major life activity. Jacques must prove that she was perceived as having relations with others that were characterized on a regular basis by severe problems, such as consistently high levels of hostility, social withdrawal, or failure to communicate when necessary, all due to her mental impairment. It is a perception case, in other words. Merely cantankerous persons are not deemed substantially limited in their major life activity of interacting with others. It has to be more than that.”

On appeal, the Second Circuit held that the instruction was in error, vacated the judgment and remanded for further proceedings. While agreeing with the Ninth Circuit (in McAlindin v. County of San Diego) that “interacting with others” constituted a category of “major life activity,” the Second Circuit defined it more narrowly:

We hold that a plaintiff is ‘substantially limited’ in ‘interacting with others’ when the mental or physical impairment severely limits the fundamental ability to communicate with others. This standard is satisfied when the impairment severely limits the plaintiff’s ability to connect with others, i.e., to initiate contact with other people and respond to them, or to go among other people–at the most basic level of these activities. The standard is not satisfied by a plaintiff whose basic ability to communicate with others is not substantially limited but whose communication is inappropriate, ineffective, or unsuccessful. A plaintiff who otherwise can perform the functions of a job with (or without) reasonable accommodation could satisfy this standard by demonstrating isolation resulting from any of a number of severe conditions, including acute or profound cases of: autism, agoraphobia, depression or other conditions that we need not try to anticipate today.

While the Supreme Court will need to resolve this, for now it is a bonus argument available in some circuits, applicable minimally to most employees with mental illnesses, and prospectively to any other disabled person with communications/social impairments.

Thursday, October 7, 2004

A word to the wise — that requirement that employees file consents to join collective actions filed under 29 U.S.C. § 216(b) (which applies to actions under the FLSA, ADEA and Equal Pay Act) may be enforced even when the plaintiffs themselves are named in the caption of the complaint and participate in discovery. So holds the Seventh Circuit in Harkins v. Riverboat Services, Inc., No. 03-3624 (7th Cir. Oct. 6, 2004) which affirmed dismissal of 18 out of 21 plaintiffs’ FLSA overtime claims for failure to meet this requirement. As the court noted:

“In a collective (or, as it is sometimes called, a representative) action under the FLSA, a named plaintiff sues ‘in behalf of himself . . . and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.’ 29 U.S.C. § 216(b). (Compare class actions under Fed. R. Civ. P. 23(b)(3), in which the consent of class members is not required; instead they have a right to be notified of the class action and to opt out of it and seek their own remedies. Fed. R. Civ. P. 23(c)(2)(B).) The plaintiffs’ counsel asks us to overlook the failure to comply with the statute. He argues that since all 18 were actually named as plaintiffs in the complaint and participated in discovery, their consent to be parties can be presumed and so the failure to file written consents for them was harmless, a mere failure to comply with a technicality.”

“The statute is unambiguous: if you haven’t given your written consent to join the suit, or if you have but it hasn’t been filed with the court, you’re not a party. It makes no difference that you are named in the complaint, for you might have been named without your consent. The rule requiring written, filed consent is important because a party is bound by whatever judgment is eventually entered in the case, and if he is distrustful of the capacity of the “class” counsel to win a judgment he won’t consent to join the suit. We are inclined to interpret the statute literally. No appellate decision does otherwise.”

The panel went on to observe that the consent requirement only attaches to collective actions; joint plaintiff actions that do not purport to represent others similarly situated, on the other hand, do not fall under section 216(b).

Wednesday, October 6, 2004

God save us from defense attorneys who dream up preposterous summary judgment arguments like this one, against a plaintiff (the night-shift bakery-wrapper at a Sam’s Club) seeking standing under the Americans With Disabilities Act for her disability, end-stage renal failure:

“Wal-Mart asserted that her kidney failure was not a covered disability, arguing that the inability to cleanse one’s own blood and eliminate body waste does not amount to the limitation of a major life activity under the statute.”

Incredibly, the district court swallowed this argument:

“In his Report and Recommendation, the Magistrate Judge recommended that Wal-Mart’s motion for summary judgment be granted. She concluded that ‘[t]he activities of processing bodily waste and cleansing blood do not comport with the definition of “major life activity” under the ADA’ and that these activities were ‘kidney function[s],’ which were not a major life activity under the ADA.”

But thankfully, in Fiscus v. Wal Mart Stores, Inc., No. 03-2513 (3d Cir. Oct. 6, 2004), the plaintiff (with a big assist from the EEOC Appellate Division) got this awful decision reversed. As the panel reasoned: “To be sure, these are normally internal body functions which are not volitional-i.e., which occur automatically. But that does not mean that they may not be considered a major life activity. Even internalized and autonomous body activities may qualify as major life activities within the meaning of the ADA.” It set down a reasonable standard for judging claims of “major life activities” in future cases:

“A major life activity need not constitute volitional or public behavior; it need not be an activity that is performed regularly or frequently; but it does have to have importance to human life comparable to that of activities listed in the regulatory examples. We also read the Supreme Court to hold that a substantial limitation of a major life activity does not mean impossibility or even great physical difficulty; rather, substantial limitation is weighed in a broad, practical sense, and may include non-physical factors.”

I applaud the outcome, which may help set the district courts straight in the future in similar cases. Yet there is no recovery for Ms. Fiscus, for now: the case will now be remanded — presumably to the same judge — to evaluate the balance of the claim of employment discrimination. Uh! Where is the fairness in a civil justice system that makes the powerless crawl for their recompense?

Tuesday, October 5, 2004

My regrets for not getting to the blog yesterday; my office has been on trial the last week, and I’ve been pitching in.

For my fellow Illinois plaintiffs’ lawyers, I commend Melena v. Anheuser-Busch, Inc., No. 5-03-0805 (Ill. App. 5th Dist. Sept. 22, 2004), which holds (apparently for the first time in Illinois state court) that the validity of an employer’s mandatory arbitration policy — foregoing a civil action — depends on a knowing and voluntary waiver by the employee. Plaintiff commenced a tort action against her employer for retaliatory discharge (because she sought to collect workers compensation). The employer invoked the company’s arbitration policy and the Federal Arbitration Act to steer the case away from a judge and jury.

But after parsing the state, federal and (especially) Seventh Circuit law on the standard of review, the appellate court affirmed the district court’s decision to deny to motion to compel arbitration. First, the court expressed doubts about the arbitration clause was indeed knowing:

“The record leaves some question regarding whether the plaintiff entered into the agreement knowingly. There is nothing in the record to indicate what was said at the presentation explaining the dispute resolution program or what was included in the posters displayed at the plaintiff’s workplace. Although the dispute resolution program statement and guide do explicitly state that statutory claims such as the plaintiff’s are covered claims subject to binding arbitration, nothing in the record indicates when these two booklets were mailed to the plaintiff. The letter mailed to employees prior to the April 2000 effective date of the dispute resolution program indicates that the final level of the program is binding arbitration, but it does not expressly state that agreeing to the program means giving up a judicial forum for statutory claims.”

Second, the appellate court held that — at any rate — the arbitration clause was not entered into voluntarily:

“When a job applicant is presented with an arbitration agreement as a condition of employment, the prospective employee is faced with a choice between accepting the arbitration agreement or continuing to search for a position that does not include such a requirement. That is a troubling enough scenario in its own right, but in the instant case, the plaintiff had even less volition in the matter than the typical job applicant. Her ‘choices’ were to continue her employment, thereby automatically agreeing to the dispute resolution policy, or resign. Counsel for the defendant admitted at oral argument that the plaintiff would have been terminated had she refused to accept the policy. This left her with no viable options. Unlike a job applicant, the plaintiff had not already begun a job search. She therefore did not have the benefit of having any other job leads, nor did she have the ability to wait for a firm offer of employment before resigning, an advantage many job applicants have. Moreover, being forced from her position with the defendant by refusing to agree to the dispute resolution likely would have made it quite difficult for her to obtain a new job. Prospective employers might be disinclined to hire someone who was terminated for refusing to agree to an arbitration clause.”

While allowing that (in some cases) an arbitration clause negotiated with a “highly skilled employee” might pass muster, a non-union hourly employee such as plaintiff did not fall into that category.

Friday, October 1, 2004

Here’s another instance of the confusion into which our federal courts have been drifting since the Desert Palace v. Costa decision two terms ago. In Boyd v. Illinois State Police, No. 02-2880 (7th Cir. Sept. 30, 2004), the district court tried an 18-plaintiff Title VII race case, alleging that forensic scientists transferred from the Chicago Police Department to the state police took a hit in their compensation because they were predominantly African-American. The jury was instructed, in pertinent part:

“As used in these instructions you may find that [ ] plaintiff’s [sic] race was a motivating factor if the racial composition of the plaintiff group played [a] part or a role in the defendant’s salary determination to set plaintiff’s [sic] salaries. However, the racial composition of plaintiff group need not have been the only reason for defendant’s salary determination.”

So far, so good, but when the jury got hung up on this language and requested clarification, the district court judge furnished this explanation.

“To be a motivating factor the forbidden criterion must be a significant reason for the employer’s action. It must make such a difference in the outcome of events that it can fairly be characterized as the catalyst which prompted the employer to take the adverse employment action and a factor without which the employer would not have acted.”

That supplemental instruction, the panel concluded, was error. “The term ‘catalyst’ does not appear anywhere in the text of Title VII and has never been used by the Supreme Court in any of its decisions interpreting Title VII. . . . It appears that the district court may have borrowed language from Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1033-34 (7th Cir. 1999), in crafting its supplemental instruction, a case considering the phrase ‘because of disability’ under the Americans with Disabilities Act (ADA), 42 U.S.C.§ 12112(a). But the ADA standard may not be the same as Title VII’s. We use this opportunity to remind the district courts that jury instructions should not be patched together from snippets of appellate opinions taken out of context, but should rally first on the language of the statute.”

I am with the panel completely about the principal point: uncluttering the standard liability instruction. I’d guess that most jurors can already intuit what “discrimination” means without resort to an abstruse legal instruction.

But what about this “motivating factor” language? This implies a “mixed-motive” case (i.e., the use of the language from 42 U.S.C. § 2000e-2(m)), yet the opinion does not state expressly whether plaintiffs intended to proceed under this theory. And not every plaintiff is going to want such a mixed-motive instruction (because it triggers the affirmative defense under 42 U.S.C. § 2000e-5(g)(2)(B), a neutron bomb that leaves the judgment standing but annihilates all effective relief). In drafting this opinion, I would have drawn this distinction clearly. Many plaintiffs’ counsel continue to prefer the classic liability standard, prohibiting discrimination “against any individual . . . , because of such individuals race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (emphasis supplied). Now I fear that a lot more district courts judges, guided by this precedent, will be giving unbidden liability instructions derived from the wrong section of Title VII.



Daily Developments in EEO Law
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Recent Updates

November 01, 2010
Stiefel v. Bechtel Corp., No. 09-55764 (9th Cir. Nov. 1, 2010); Kepas v. eBay Inc., No. 09-4200 (10th Cir. Nov. 2, 2010)

September 29, 2010
Newberry v. Burlington Basket Co., No. 09-3082 (8th Cir. Sept. 28, 2010)

September 08, 2010
Payne v. Salazar, No. 09-5291 (D.C. Cir. Sept. 7, 2010)

September 06, 2010
EEOC v. Prospect Airport Services, No. 07-17221 (9th Cir. Sept. 3, 2010)

August 31, 2010
Hatmaker v. Memorial Medical Center, No. 09-3002 (7th Cir. Aug. 30, 2010)


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