December 2004

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

December 2004

Tuesday, December 27, 2004

Another personal appearance case is reported today, this one about a woman bartender who said “no” to cosmetics. Jesperson v. Harrah’s Operating Co., Inc., No. 03-15045 (9th Cir. Dec. 28, 2004). The plaintiff had been a model employee for Harrah’s Casino, and for nearly 20 years worked without wearing make-up. Her brief exposure to cosmetics left her feeling “sick, degraded, exposed, and violated.” But in the year 2000, Harrah’s launched a “Personal Best” appearance standard that required woman servers to be made-up for work (but barred men from using make-up at all). Plaintiff neither complied with the directive, nor accepted the company’s invitation to apply for another position to which “Personal Best” did not apply.

Reviewing summary judgment, the panel split 2-1 over whether the “Personal Best” standard violated Title VII. The majority opinion (signed by Judge Tashima) affirmed summary judgment. As it read the circuit case law on the subject, “[a]lthough employers are free to adopt different appearance standards for each sex, they may not adopt standards that impose a greater burden on one sex than the other.” The majority then decided the standard of proof in such an “unequal burdens” case:

“Because employers are permitted to apply different appearance standards to each sex so long as those standards are equal, our task in applying the ‘unequal burdens’ test to grooming and dress requirements must sometimes involve weighing the relative burdens that particular requirements impose on workers of one sex against the distinct requirements imposed on workers of the other sex.”

It determined to evaluate the entire “Personal Best” policy rather than isolate the make-up v. “no make-up” rules. So considered, the majority held that plaintiff presented insufficient evidence that the added cost or burden of wearing make-up imposed a discriminatory term or condition on female employees.

It also refused to evaluate “Personal Best” as a form of sex-stereotyping prohibited under the Price Waterhouse case. “Although Price Waterhouse held that Title VII bans discrimination against an employee on the basis of that employee’s failure to dress and behave according to the stereotype corresponding with her gender, it did not address the specific question of whether an employer can impose sex differentiated appearance and grooming standards on its male and female employees.”

The dissent (by Judge Thomas) disagreed both with the majority’s application of the “unequal burdens” test and with its refusal to consider the sex-stereotyping implications of the program. In the end, the challenge ought to have gone to the jury:

“Finally, even if all appearance requirements for men are compared to all appearance requirements for women, and even if the burdens engendered by sex-stereotyping are neglected, a reasonable jury could easily conclude that having to wear approximately as much makeup as one was wearing post-makeover, in addition to teasing, curling, or styling one’s hair every day, constitutes more of a burden than having to keep one’s hair short and cut one’s fingernails.”

In a curious footnote, both the defendant and one of its amici were represented by different offices of the same law firm, a condition that no doubt improves opportunities for refining your position on appeal. Although I often write amicus briefs, I would have never thought to have tried that for one of my clients.

Wednesday, December 22, 2004

In Perez v. Texas Department of Criminal Justice, No. 03-50985 (5th Cir. Dec. 21, 2004), an instructional error leads to a new trial for the defendant. The plaintiff, a Latino correctional officer, was charged with a felony assault — a stabbing — against a bar patron (later dismissed). The agency terminated him after he refused to cooperate with an Internal Affairs (IA) investigation of the incident. A jury found that the termination was racially motivated, because (the record revealed) there were non-Latino officers charged with serious crimes who were not terminated.

The first issue addressed on appeal was whether the district court erred in blocking cross-examination of the plaintiff on whether he actually committed the crime. The panel had little trouble concluding “no” — “the evidence relevant to determining whether TDCJ treated Perez differently because of his race is evidence that goes to what [plaintiff’s supervisor] Poppell knew at the time he ordered the IA investigation and recommended Perez’s termination. Examination of Perez about what actually happened the night of the stabbing, as distinct from what he told Poppell and the IA investigator about what happened, could not have added anything relevant to that inquiry.” The panel also affirmed exclusion of the IA final report, which Poppell did not have at the time plaintiff was terminated

Nevertheless, the district court erred in instructing the jury as follows about the comparative evidence with non-Latino officers:

“To establish discrimination by using indirect evidence in this case, the plaintiff must prove by a preponderance of the evidence that one or more similarly situated non-Hispanic employees who engaged in criminal activity were treated more favorably. In comparing the nature of the offense at issue and the nature of the discipline imposed, the quantity and quality of the other employees’ misconduct must be of comparable seriousness to the misconduct of the plaintiff.” (emphasis added).

Here, the jury charge implies that it was sufficient for plaintiff to establish liability to show that there were other, non-Latino officers committing crimes of equal seriousness. But as the panel held, “In instructing, without more, that the employees’ underlying misconduct must be comparably serious, the district court erroneously suggested that comparably serious misconduct was by itself enough to make employees similarly situated. A correctly worded instruction would have made clear that the jury must find the employees’ circumstances to have been nearly identical in order to find them similarly situated.”

Tuesday, December 21, 2004

Is O’Neal v. City of Chicago, No. 04-1402 (7th Cir. Dec. 20, 2004) (a Title VII race discrimination case) just the umpteenth Title VII case defining “adverse employment action,” or does it ratchet things up another notch? My own circuit now claims to be looking for “universal” affronts to an employee’s dignity, as opposed to purely “idiosyncratic” reactions.

From a plaintiff lawyer’s perspective, the Seventh Circuit up to now has had employees pretty well covered, defining specifically three categories of adverse action covered under the anti-discrimination laws:

(1) cases in which the employee’s compensation, fringe benefits, or other financial terms of employment are diminished, including termination; (2) cases in which a nominally lateral transfer with no change in financial terms significantly reduces the employee’s career prospects by preventing her from using her skills and experience, so that the skills are likely to atrophy and her career is likely to be stunted; and (3) cases in which the employee is not moved to a different job or the skill requirements of her present job altered, but the conditions in which she works are changed in a way that subjects her to a humiliating, degrading, unsafe, unhealthful, or otherwise significantly negative alteration in her workplace environment.

Slip Op. at 4 (citing Herrnreiter v. Chicago Housing Authority, 315 F.3d 742, 744-45 (7th Cir. 2002)).

Here, plaintiff presented some evidence that her transfer (from administrative sergeant in the Narcotics Unit to the position of ‘beat sergeant’ in one of the districts) would be deemed inferior universally:

“O’Neal argues that her transfer constitutes an adverse employment action for several reasons. First, she asserts that the transfer negatively affected her chances of promotion because positions in the Narcotics Unit are more prestigious than those in the districts. O’Neal also contends that the transfer marred her reputation ‘by implicitly accepting the rumor, despite the evidence that [she] never had the relationship in question.’ (Appellant’s Br. at 17.) Because of the transfer, O’Neal asserts, her opportunity for promotion was ‘limited due to the irreparable harm on her professional credibility and the ability to achieve higher ranks.’ (Id. at 17-18.)”

But plaintiff’s claim was foiled by her failure to corroborate that the transfer either (1) had deleterious effects in the here-and-now (such as a material loss of compensation — lost flex time and vacation pay are now apparently not enough) or (2) compromised plaintiff’s future in the force (that is, negatively affected her reputation in the department).

On the latter point, merely citing uncomfortable conditions is not enough to prevail: “As the administrative sergeant of the Narcotics Unit, she was responsible for the daily operation of the unit, scheduling twenty security employees, attending meetings, supervising employees on the night shift, and performing tasks assigned by the commander. As a beat sergeant, however, O’Neal also had significant supervisory responsibilities, overseeing sixteen officers responding to calls in the field. While O’Neal claims she was subject to more constant monitoring from superiors as a beat sergeant, she does not dispute that she reported directly to Commander Wiberg in the Narcotics Unit.”

This would also seem to indicate that plaintiff’s discovery must target the workplace culture of success; that is, what would the plaintiff’s co-workers or managers consider materially adverse?

Monday, December 20, 2004

The circuits continue to divide over which party bears the burden of proof on the ADA “direct threat” defense. In Branham v. Snow, No. 03-3599 (7th Cir. Dec. 17, 2004) , the Seventh Circuit places the burden on the employer, and so (in this case) wound up reversing summary judgment on the affirmative defense. (Though the case proceeded under the Rehabilitation Act, the analysis follows the order of proof of the ADA.)

The employee, an IRS revenue agent, sought promotion to a position as criminal investigator. He had diabetes which, while under medical control, placed constraints on his diet (e.g. “never free to eat whatever he pleases because he risks both mild and severe bodily reactions”). The Seventh Circuit found as an initial matter that diabetes, even when under control, may constitute a disability when it substantially limits the major life function of eating (reversing the district court’s contrary holding).

It then considered the “direct threat” defense, that the demands of the criminal investigator job would place him at risk of “subtle and/or sudden incapacitation” which “would place the applicant and others (other Special Agents, the public) at an extreme risk of safety that would be unacceptable.” The court sustained the circuit’s prior case law holding that the employer bore the burden of proof, finding support “in the plain wording of the statute and in common sense.” “The agency is certainly in the best position to furnish the court with a complete factual assessment of both the physical qualifications of the candidate and of the demands of the position.”

The panel found that the record, viewed in the light most favorable to the employee, established that the employee had never suffered a hypoglycemic episode on the job, that the symptoms of his condition were not incapacitating, and there was no objective evidence that they would pose a risk to the employee or others. Thus the employee was entitled to a trial on this issue.

Friday, December 17, 2004

Holy Cats!! A progressive decision from the Fifth Circuit?! Two in the same year! I’m about falling out of my chair!!!

Yesterday I mentioned the Fifth Circuit’s recent opinion, Rachid v. Jack In The Box, Inc., 376 F.3d 305, 93 FEP 1761 (5th Cir. 2004), holding that the Supreme Court partly overruled the Price Waterhouse decision in Desert Palace, thus allowing ADEA and section 1981 plaintiffs to invoke mixed-motives without direct evidence of bias. Though generally ignored by other circuits (most recently, the Third and the Eleventh Circuits held that Price Waterhouse remains intact, notwithstanding Desert Palace), I thought it a bold and well-considered decision that carried out the Supreme Court’s reasoning (exploding the distinction between direct and circumstantial evidence) to its logical extension.

The spirit of Judge John Minor Wisdom (in whose honor the Fifth Circuit’s courthouse was named) continues to work an occasional miracle for plaintiffs. In Patrick v. Ridge, No. 04-10194 (5th Cir. Dec. 15, 2004), the panel finally called a halt to the bogus “non-reasons” employers are prone to give in response to a prima facie case of discrimination or retaliation. Following two non-promotions, the agency gave as its legitimate, non-discriminatory reasons that the plaintiff was “not sufficiently suited” and the successful candidate was the “best qualified.” Reversing summary judgment, the Fifth Circuit had this to say:

“Fatal to the INS’s position here is the well-established rule that, to meet its burden of production under McDonnell Douglas, an employer must articulate a nondiscriminatory reason with ‘sufficient clarity’ to afford the employee a realistic opportunity to show that the reason is pretextual. This does not mean that an employer may not rely on subjective reasons for its personnel decisions. It does mean, though, that to rebut an employee’s prima facie case, a defendant employer must articulate in some detail a more specific reason than its own vague and conclusional feeling about the employee.”

And this:

“If the INS believed — and had verbalized — that Patrick was not ‘sufficiently suited’ to fill the SRS position because of her experience, credentials, attitude, or some other such articulable characteristic, the agency’s reason might have provided enough detail to enable Patrick to attempt to show pretext. In the face of the INS’s bald and amorphous statement that Patrick simply was ‘not sufficiently suited,’ however, neither we nor Patrick can identify the kind of evidence needed to demonstrate that such a rank generalization is or is not pretextual.”

Hallelujah! Maybe I’m going to have to consider relocating to New Orleans.

Thursday, December 16, 2004

When I speak to lawyer groups about client intake, I always warn “Don’t take the client who threw the first punch in a fight.” Now I have a new, cyber-age analogue: “Don’t take the client who let her granddaughter use the company DSL.” This, and other sundry misconduct, landed in the grandmother in the unemployment line. Glanzman v. Metropolitan Management Corp., No. 03-4546 (3d Cir. Dec.14, 2004) .

This case (involving this and another plaintiff with a related retaliation claim) also points up that under the ADEA, the courts still follow Price Waterhouse in so-called “mixed motive” cases (while Title VII cases proceed under 42 U.S.C. § 2000e-2(m) and Desert Palace v. Costa). (But see Rachid v. Jack In The Box, Inc., 376 F.3d 305, 93 FEP 1761 (5th Cir. 2004) (holding in ADEA case that Costa overruled Price Waterhouse demand for direct evidence of discrimination).) Glanzman was a property manager. Among her workplace infractions, alleged by the employer (along with the granddaughter-Internet abuse) — accepting $100’s of dollars in unreported collect calls on the work phone from a boyfriend in prison, failing to appear at work and when paged, abusing staff, and possibly stealing a dishwasher (and giving a false account of it, as well). Against this record, the plaintiff had evidence of statements (vice president wanted to “replace her with a young chippie with big tits,” asked her if she was retiring, mentioned her age gratuitously) directly proving age bias.

While the Third Circuit found the district court erred in holding that these statements (or, at least, the “young chippie” crack) were not “direct evidence,” sufficient to trigger the Price Waterhouse framework, it affirmed the judgment on the alternative basis that the employer met its Price Waterhouse burden as a matter of law — establishing that all of the above offenses would have led to her termination anyway: “Glanzman had already been warned about serious violations of Metropolitan’s policies, she was then caught committing even more serious violations, and lying to cover up what Metropolitan reasonably determined to be a plan to steal a dishwasher for use on a property she owned. Glanzman does not even try to rebut most of the district court’s analysis in her brief.” And under the ADEA (though not Title VII) that means no liability at all for the defendant.

Wednesday, December 15, 2004

Another case study in how special jury verdict forms are never plaintiff’s friends: Wilbur v. Correctional Services Corp., No. 03-16540 (11th Cir. Dec. 14, 2004). Here is the form the jury was forced to navigate in a (fairly straightforward) Title VII sex harassment case and how it answered:

Did you find from a preponderance of the evidence:

1. That the Plaintiff was subjected to a hostile or abusive work environment because of her sex or gender?

Answer Yes or No

2. That such hostile or abusive work environment was created or permitted by a supervisor with immediate or successively higher authority over the Plaintiff?

Answer Yes or No

3. That the Plaintiff suffered damages as a proximate or legal result of such hostile or abusive work environment?

Answer Yes or No

4. That the Defendant exercised reasonable care to prevent and correct promptly any sexually harassing behavior in the workplace?

Answer Yes or No Yes

5. That the Plaintiff unreasonably failed to take advantage of any preventive or correctiveopportunities provided by the Defendant to avoid or correct the harm?

Answer Yes or No Yes

6. That the Plaintiff was subjected by her supervisor or supervisors to a quid pro quo sexual demandor threat (as those terms are explained in the Court’s instructions)?

Answer Yes or No Yes

7. That the Plaintiff’s employment was terminated because of her rejection of the quid pro quo sexual demand or threat?

Answer Yes or No

8. That the Plaintiff in good faith asserted claims or complaints of sex or gender discrimination?

Answer Yes or No Yes

9. That the Plaintiff was then discharged from her employmentbecause of her assertion of such claims or complaints?

Answer Yes or No

10. That the Plaintiff should be awarded damages to compensate for emotional pain and mental anguish?

Answer Yes or No Yes

If your answer is Yes, in what amount? $25,000

The answer in No. 10 was inconsistent with the answers to Nos. 7 and 9. Although plaintiff’s counsel pointed out the possible inconsistency to the trial judge and requested that the jury receive supplementary instructions (a course that the Eleventh Circuit wrote might “have been the preferred method of resolving it”), instead the judge dismissed the jury and entered judgment as a matter of law to the defendant based on the interrogatory answers. On appeal, the panel (like the district court judge) could not reconcile the interrogatory answers. The decision not to send the case back to the jury with instructions (reviewed on an abuse of discretion standard), and enter judgment as a matter of law, was likewise affirmed.

Tuesday, December 14, 2004

The Tenth Circuit yesterday, in a 2-1 decision (Harbert v. Healthcare Services Group, Inc., No. 03-1156 (10th Cir. Dec. 13, 2004)), interred a Department of Labor FMLA regulation that defines the term “worksite” under 29 U.S.C. § 2611(2)(B)(ii) as applied to joint employers as follows: “For purposes of determining that employee’s eligibility, when an employee is jointly employed by two or more employers (see § 825.106), the employee’s worksite is the primary employer’s office from which the employee is assigned or reports. The employee is also counted by the secondary employer to determine eligibility for the secondary employer’s full-time or permanent employees.” (29 C.F.R. § 825.111(a)(3).) The panel majority — though at least nominally observing Chevron deference — held that the regulation conflicted with the express FMLA provision that excluding from coverage any employee whose employer employs less than 50 employees within 75 miles of that employee’s “worksite.”

This decision is likely to have import for sizable, but decentralized employers (such as, in this case, a national operation of 17,000 providing contract services to nursing homes).

Monday, December 13, 2004

An exotic new decision (Bastien v. The Office of Senator Ben Lighthorse Campbell, No. 02-1343 (10th Cir. Dec. 10, 2004)) aligns the august defense firm of Jones, Day, Reavis & Pogue (as amicus counsel for AFSCME) with the scrappy National Employment Lawyers Association, sheds light on the seldom-invoked Congressional Accountability Act of 1995 (the CAA, 2 U.S.C. § 1301 et seq), and poses the constitutional question of whether a U.S. Senator obtains immunity as an employer from employment discrimination by virtue of the Speech and Debate Clause.

The (soon-to-retire) senator in the picture is accused, through his office, of firing a personal aide because of age. The district court applied sovereign immunity, holding that the aide’s job mostly involved legislative functions (such as interacting with constituents). The panel, though, disagreed with that assessment and more narrowly reined in the reach of the Speech and Debate Clause:

“As we read the Supreme Court’s opinions on the Speech or Debate Clause, the Clause protects only ‘legislative’ acts by a member of Congress or an aide, and only official, formal acts (or perhaps their functional equivalent) deserve the adjective ‘legislative.’ In particular, Plaintiff’s informal contacts with constituents and other sources of information and opinion were not legislative in nature. Because Plaintiff’s duties were not legislative and personnel actions allegedly taken against her were not in themselves legislative, her CAA claim can proceed.”

The court also rejected an absolute privilege for legislators (akin to the one enjoyed by the president): “Prominent as members of Congress are, the threat to the performance of their duties arising from employment litigation is nothing like what would confront the President. It is worth observing that the third branch of government, the judiciary, is not entitled to absolute immunity in making employment decisions.” A-ha — not likely that they were going to confer higher standing on an Article I lawmaker, eh?

Friday, December 10, 2004

It’s the season for bogus religious discrimination claims. Last week, we paid a visit to the web-based Church of Body Modification, which encouraged its followers to boldly wear body piercings. Cloutier v. Costco Wholesale Corp., No. 04-1475 (1st Cir. Dec. 1, 2004). Today, it’s the faith of the “Confederate Southern-American,” in whose world the Confederate stars-and-bars becomes a “the cross of Saint Andrew, a venerated religious symbol.” Plaintiff supposed he had the right, therefore, to slap Confederate flag stickers on his lunch box and pick-up truck at work. Storey v. Burns Int’l Security Systems, No. 03-2246 (3d Cir. Dec. 9, 2004). How sadly wrong he found himself to be.

The district court rejected the religious (as well as national origin) claims on a Rule 12(b)(6) motion to dismiss. On appeal, the panel majority unfortunately accepted the codswallop about plaintiff’s “Confederate” faith at face value, for purposes of summary judgment. Instead, it found (oddly enough) that plaintiff’s alleged discharge — after refusing to peel off the stickers, he was told not to return to work and turned away at the security gate — was not an adverse employment action! No kidding, try to figure this out:

“Although Storey’s complaint speaks of being discharged because of his national origin and religion, Storey concedes that he was fired because he refused to cover or remove his Confederate flag symbols when his employer told him to. App. 29 (Complaint ¶¶ 11-13). The record reflects that, had Storey complied, he would not have been terminated. Rather, he would have continued working for Burns as a ‘Confederate, Southern American’ and Christian. Therefore, even if we assume arguendo that he is a member of a protected class and if we further accept the claim that the Confederate flag may be viewed as a religious symbol, Storey still has not established a cause of action.”

The concurring opinion, meanwhile, went to the nerve of the case. It found that the discharge did (as alleged) constitute an adverse employment action, but that the plaintiff had no bona fide claim of religious discrimination: “[as] the Court notes, Storey failed to state a prima facie case because he failed to inform his employer that he held a religious belief that conflicted with an employment requirement. Specifically, he did not inform his employer that displaying the Confederate flag had any relation to his religious beliefs or observances.”

Thursday, December 9, 2004

Here’s a good follow-up to the Jones v. R.R. Donnelley & Sons Co., 124 S. Ct. 1836 (2004), the decision applying a 4-year limitations period to all section 1981 employment discrimination cases originating from the 1991 Civil Rights Act amendment (which overruled Patterson). Cross v. The Home Depot, No. 03-1070 (10th Cir. Dec. 8, 2004). Owing to Jones, employment discrimination claims under section 1981 will now have two possible limitations periods. For “contract formation” claims such as hiring (which preexisted the 1991 Act), section 1981 will continue to borrow the applicable state limitations period (typically two years, but in some jurisdictions as long as six). For “post-formation” claims, those having generally to do with terms of conditions of employment such as transfers, raises and the like, a four-year uniform limitations period applies by virtue of 28 U.S.C. § 1658.

The issue in Cross was whether a promotion was “contract formation” (borrowed 2-year period) or “post-formation” (federal 4-year period). Dusting off the long dormant Patterson-era case law, the panel reversed summary judgment and found that the plaintiff’s claim belonged in the “post-formation” basket:

“Despite the expanded career opportunities and significant pay raise attendant to a promotion from ASM [Assistant Store Manager] to Store Manager, the ‘qualitative change in the contractual relationship’ necessary to find a ‘new and distinct’ relationship is missing. Mr. Cross provided the district court with a document entitled ‘JOB PROFILE-Supervisor/Manager,’ apparently devised by Home Depot to define the positions of Department Supervisor, ASM, and Store Manager. Aplt. App. at 135. The company describes the qualifications for and duties of ASMs and Store Managers as essentially identical, and both are supervisors. As such, both ASMs and Store Managers hold exempt positions as defined by the Fair Labor Standards Act, while Department Supervisors, who report to ASMs, do not.”

Ironically, in the Patterson era, it was the employers who sought to classify claims as “post-formation,” which at the time did not state a cause of action, while employees fought to have their claims classified as “contract formation.” Now, both sides have flipped (except in the few jurisdictions like Maryland Wisconsin, I suppose, where employees may enjoy a longer limitations period under state law).

Wednesday, December 8, 2004

Riffing on yesterday’s entry, here is another decision tossing a Title VII jury verdict for a plaintiff because the plaintiff supposedly failed to establish an element of his prima facie case. Filipovich v. K&R Express Systems, Inc., No. 03-2038 (7th Cir. Dec. 7, 2004) . It’s an object lesson in the contrast between the paper verdict on a case at the summary judgment stage and the vagaries of live testimony at trial.

The case alleged age discrimination and retaliation. Plaintiff was a dockman who unsuccessfully sought promotion to a driving position. When he lost the promotion, and after he filed an EEOC charge alleging age discrimination, he became the subject of disciplinary actions (including suspensions) for improper loading of freight. A jury found for plaintiff on both claims and awarded $1,500 in back pay plus $126,423 in punitive damages (remitted to $25,000). The trial judge granted judgment as a matter of law on the age discrimination claim, but upheld the retaliation verdict.

The Seventh Circuit began (as, I believe, the Sixth Circuit ought to have done in Noble) by correcting the impression that Rule 50 review involves a march back through the McDonnell Douglas exam. Instead, it reminded the litigants, the question after trial is whether the evidence in its entirety supports a finding of discrimination. But then the court wrote:

“Although we do not overturn a jury verdict lightly, that does not mean that all jury verdicts must be affirmed. If, for example, the evidence presented at the summary judgment stage does not materialize at trial for some reason or another, and the party seeking to reach the jury introduces nothing else in its place, the court would have a duty to grant a Rule 50 motion for the other side even if it had correctly denied summary judgment. We are obliged to give the same careful review to the evidence that we use at the summary judgment stage, looking at the evidence that was presented at trial and taking all reasonable inferences in the light favoring the opponent of the motion.”

On his age claim, although the jury could have believed that the company denied plaintiff training that would have enabled him to qualify for the promotion, the plaintiff stumbled at trial by not identifying any younger employee who received training (or, though it goes unmentioned in the opinion, any other circumstantial evidence that age was a motivating factor in the decision). On the retaliation claim, the employer’s chief defense was a sheaf of manifest sheets signed by the plaintiff, indicating errors in loading and unloading freight. The plaintiff’s response — that the manifest sheets were simply fraudulent — proved insufficient to support a verdict:

“In each instance, Filipovich failed to offer any plausible alternative theory for the mistakes. Nor did Filipovich offer any evidence to show that K&R’s manifest system was open to falsification or manipulation. Filipovich also presented no evidence indicating that K&R implemented its disciplinary system in a discriminatory manner. There is nothing to suggest, for example, that K&R failed to discipline other dockmen for similar mistakes or that K&R sent letters to Filipovich for infractions that usually did not merit a letter. Instead, Filipovich testified only that he suspected that K&R had made things up.”

Thus a claim of fabrication at trial must be substantiated by evidence at least some evidence that fabrication was possible.

Tuesday, December 7, 2004

What do federal courts mean when they say that, under the pretext method of proof, the prima facie case “drops out” after the employer presents a legitimate, non-discriminatory reason for its decision? A panel of the Sixth Circuit recently wrestled with this problem in Noble v. Brinker Int’l, Inc., No. 02-4190 (6th Cir. Dec. 3, 2004). The employee, a restaurant server, supposedly missed a shift and was fired at once by his manager (Ficorelli). The African-American plaintiff identified one and possibly two white servers who were not terminated under similar circumstances. The plaintiff also presented evidence that he had never agreed to take the shift he supposedly missed (his own testimony, combined with a lack of documentation supporting defendant’s account). And there was evidence that the restaurant’s former manager (not Ficorelli, the decision-maker, but his immediate predecessor) was — viewing the evidence in the light most favorable to plaintiff — a sulfur-breathing racist.

On these facts, after a second trial, plaintiff prevailed before a jury (the first jury deadlocked). On appeal, though, the employer obtained judgment as a matter of law. The panel majority’s analysis proceeded in two steps. First, the court lopped off the prior bad history with the former manager, finding that the new manager’s mere awareness of that history did not taint the termination decision. Second — and more controversially — the majority found that the district court erred in not revisiting the prima facie case on judgment as a matter of law.

The panel majority was constrained to accept the jury’s finding that the employer lacked any basis in fact for its decision to fire plaintiff. But plaintiff’s case (in the absence of direct or circumstantial evidence of race bias) was evidently doomed at the outset by the lack of comparable white servers rescued from termination under comparable circumstances. (The only white server identified by name — Michael Brahler — who missed a shift had (1) called in ahead and (2) was excused because his car broke down en route . Evidence of a second server proved too indefinite to credit.)

So this, according to the majority, was a case proving the outer boundaries of the pretext method of proof:

“Our conclusion that Noble failed to produce evidence at trial to support a prima facie case of discrimination is significant because it takes Noble outside the scope of the rule applied in Reeves [v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)]. As noted above, that case held that evidence supporting a plaintiff’s prima facie case, together with sufficient evidence to permit the jury to conclude ‘that the employer’s asserted justification is false,’ may permit a factfinder to find for the plaintiff. Reeves, 530 U.S. at 148. That holding is inapplicable to the facts of this case because Noble failed to present evidence to support a prima facie case. Furthermore, even if we were to assume the existence of a prima facie case within the meaning of Reeves, that case would not mandate affirmance as Noble contends. The Reeves Court was careful to make clear that there is no magic formula that will always guarantee victory to a party in an employment discrimination case.”

If, in reviewing denial of a Rule 50 motion, “an appellate court must always assume that there is evidence supporting what the lower court accepted as the plaintiff’s prima facie case, the Supreme Court’s reasoning and holding in Reeves would be inexplicable.”

The dissent disputed the conclusion that the plaintiff failed to present a sufficient prima facie case: “A proper comparison between Ficorilli’s treatment of Noble and Brahler demonstrates that he did not treat them equally. Whereas Ficorilli terminated Brahler for violating the no call/no show policy after Brahler actually violated that policy, Ficorilli terminated Noble for violating the policy even though Ficorilli knew (or so the jury could have found) that Noble had not violated it. This is the quintessence of disparate treatment and certainly was sufficient to demonstrate the fourth element of Noble’s minimal burden to produce evidence demonstrating his prima facie case.” But the dissent did not deny that the prima faciecase could be challenged collaterally following trial.

So here, the prima facie case dropped from the case, . . . but somehow bounced back on appellate review? The majority’s analysis proves unedifying and ultimately unnecessary. To arrive where the panel majority wound up, this case could have convincingly been slotted into the narrow category allowed by Reevesof “instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant explanation, no rational factfinder could conclude that the action was discriminatory.” (The majority did reach this language in Reeves , but only in the closing stretch of the opinion.) The taint of racial animus (the former manager’s M.O.) was no longer in the picture, while there was no bias evident in the different (and entirely accountable) treatment of a server who missed a shift due to an emergency and someone (plaintiff) who the manager believed did not have a valid excuse. It is unclear why the panel majority found it necessary to freight this little case with a significance that it did not possess.

Monday, December 6, 2004

In a now-rare Title VII “bona fide occupational qualification” (BFOQ) case, handed down from the Sixth Circuit last week, a panel split 2-1 over whether gender may be a factor in staffing correctional jobs in single-sex prisons. Everson v. Michigan Department of Corrections, No. 02-2028 (6th Cir. Dec. 3, 2004). This is not a new problem in the law — the Seventh Circuit experienced a split on the same issue 15 years earlier. Torres v. Wis. Dep’t of Health & Soc. Servs., 859 F.2d 1523, 1532 (7th Cir. 1988) (en banc). Both the Seventh and Ninth Circuits (e.g., Robino v. Irano, 145 F.3d 1109 (9th Cir. 1998)) ultimately deferred to the correctional agencies’ judgment to segregate the jobs, while other circuits (the Second and Eighth) rejected a blanket BFOQ defense under comparable circumstances.

Here, the decision — affirming a decision to segregate male correctional officers from female prisoners — rests possibly on novel circumstances. The Michigan prison system had been rocked by reports in the 1990s of rampant sexual predation by guards upon women prisoners. The U.S. Department of Justice in 1997 brought suit against Michigan to bring the abuse to heel; a private injunctive suit commenced a year earlier. Reforms resulting from settlement of the dual lawsuits did not, unfortunately, end the continued allegations of abuse. Citing this history and the female inmates’ interest in privacy (correctional officers had to observe prisoners at all times of day, such as during strip searches and showers), the state concluded that it would bar men outright from jobs in the women’s residence halls.

The district court, following a bench trial, ruled that sex was not a BFOQ for correctional officers (under federal and Michigan civil rights law). But the panel majority found the holding clearly erroneous and reversed. It rejected the conclusion that sex segregation of correctional officers in Michigan prisons was out of line with “national norms,” finding that the district court did not consider the unique circumstances of the Michigan experience.

The majority indeed leaned heavily on the state’s demonstrated history of abuse. “[T]he district court clearly erred in finding ‘nothing unique’ about Michigan’s female prisons. In reaching this conclusion, the district court inexplicably failed to address Michigan’s deplorable record regarding the care of its female inmates, which, absent evidence to the contrary, we must assume sets it apart from other states. In light of the endemic problem of sexual abuse, it was incumbent upon the MDOC to act decisively and creatively, and the lessons of Torres apply with special force.” The dissent by Judge Gilman, by contrast, found that the majority accepted a stereotyped impression (in the place of empirical evidence) that men could not be trusted to carry out their duties and that lesser restrictions on men’s job responsibilities would have accommodated the inmate’s privacy interests.

Friday, December 3, 2004

Two circuits on the same day decide whether employees may report to work with items conspicuously pinned to their persons.

In Communication Workers of America v. Ector County Hospital District, No. 03-50230 (5th Cir. Dec. 1, 2004), the employee was disciplined for wearing a “Union Yes” button at work, in violation of a public employer’s dress code barring the wearing of insignia. Answer: panel majority (2-1) holds that the policy violates the First Amendment and affirms verdict in plaintiffs’ favor.

Meanwhile, in Cloutier v. Costco Wholesale Corp., No. 04-1475 (1st Cir. Dec. 1, 2004), the employer refused (under a generally applicable policy barring most facial jewelry) to allow a sales clerk to wear exposed body piercings, that as an expression of her religion. Answer: Under Title VII, the employer had no duty to accommodate the employee because it would suffer undue hardship in its inability to enforce a common appearance standard.

Thursday, December 2, 2004

Two days ago I wrote about a two-plaintiff, equal pay case involving an equity study that ran off the rails. Today, on a brighter note, the Sixth Circuit reverses summary judgment in another pay case involving an equity study, Birch v. Cuyahoga County Probate Court, No. 03-3228 (6th Cir. Dec. 1, 2004) , this under the Ohio Civil Rights Act.

The county conducted a gender study of compensation and discovered (unsurprisingly, as we shall see) that highest paid female magistrate was paid less than the lowest paid male. The four women approached the presiding judge, who (according to the summary judgment record) behaved haughtily above the law

“The four female magistrates met with Judge Donnelly and Magistrate Polito in October, 1998. In response to Birch’s concern about her low salary, Judge Donnelly stated that certain departments in the Probate Court had more responsibility and therefore justified higher salaries compared to the Release of Assets Department. According to Birch, Judge Donnelly added, ‘I don’t know how I would make these salaries fair. I rely on the men to do the important work of the Court.’

“Birch then asked Judge Donnelly why she was the lowest paid Magistrate at the court and whether he had a concern about her work. Judge Donnelly responded that he did not ‘trust her work,’ adding, ‘I would prefer that you not work here.’ When Birch asked if she was being fired, Judge Donnelly responded that she was not fired, only that he would prefer that she not work at the court. He also allegedly told Birch, ‘I don’t have to hire women,’ and told all of the female magistrates that if they do not want to work at the court, they do not have to do so.”

Plaintiff filed a host of federal civil rights claims, but the panel held that plaintiff fell into the personal staff/policymaker exception to each of those (too bad that plaintiff apparently did not know about the Government Employee Rights Act (GERA), 42 U.S.C. § 2000e-16a to 16c). As to the state law equal pay claim, though, two of the three panelists though plaintiff had a fighting chance on the merits, relying on an exception to the “equal work” standard imposed on such claims carved out in County of Washington v.Gunther, 452 U.S. 161 (1981) :

“Gunther instructs that a Title VII plaintiff suing for wage discrimination (and, by extension, a plaintiff suing under OH. REV. CODE ANN. § 4112.02) is not required, as part of her prima facie case, to point to a person of the opposite sex performing equal work for greater pay when there is other highly probative evidence that her salary would have been higher but for her sex.”

* * * *

“In sum, the record contains sufficient evidence to create a genuine issue of material fact as to whether Birch’s salary was set lower than it would have been had she been a man. The most significant evidence in this regard are Judge Donnelly’s alleged biased statements indicating that Birch’s sex was a consideration when he set and/or refused to increase her salary. In addition, several of Defendants’ facially non-discriminatory justifications for Birch’s lower salary are in material dispute, permitting the inference that they are a pretext for a discriminatory motive. For these reasons, we reverse the district court’s dismissal of Birch’s sex-based wage discrimination claim under the Ohio Civil Rights Act.”

This case also demonstrates incidently that judges can make the worst kind of client. For another case where judicial officers became civil rights defendants, and (allegedly) behaved in the same lawless fashion, see Robinson v. Sappington, 351 F.3d 317 (7th Cir. 2003).

Wednesday, December 1, 2004

A recent district court opinion –Lorenzen v. GKN Armstrong Wheels, Inc., No. C 03-3073-MWB (N.D. Iowa Nov. 22, 2004) (Bennett, J.) — stretches the concept of “constructive discharge” as far as I can recall seeing in any published opinion. Though decided under a pendent Iowa state law claim, the court applied federal civil rights precedent to deny summary judgment to an employee who alleged she suffered retaliation for applying for workers’ compensation benefits. Plaintiff claimed that her resignation was prompted by the arbitrary denial of a promised (though discretionary) two-step, or “double bump,” raise. The retaliatory intent, under the employee’s version of the facts, could hardly have been clearer.

“Lorenzen’s claim of wrongful discharge is not premised only, or even primarily, on loss of the ‘double bump’ raise; it is premised on her contention that it is intolerable for an employer to tell an employee that she should thank the employer that she still has a job when she has been injured on the job and that injury has cost the employer money. A reasonable juror could likewise find that such conduct rendered an employee’s working conditions intolerable.

“GKN also argues that Lorenzen failed, as a matter of law, to give GKN a reasonable opportunity to work out the problem. Lorenzen, however, contends that any attempt to work out the problem appeared futile, when [supervisors] Helmers and Butt told her that she should be glad she had a job after getting injured and told her to go home and think about whether she wanted to keep her job. She also contends that she did give GKN an opportunity to work things out by telling Helmers and Butt on August 10, 2001, that she was considering quitting because of unfair treatment, then returning to work on August 14, 2001. She contends that she left on August 14, 2001, when it became clear that there was no change in the way she was being treated.”

Oddly enough, nowhere does the opinion address the recent Supreme Court decision Pennsylvania State Police v. Suders, 124 S. Ct. 2342 (2004), which would appear to require something more to support a constructive discharge claim, such as “a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions.” But I would suppose that the transparent, retaliatory motive evidenced by the record made this a more attractive case for trial than the routine claim.



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)


March, 2008

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