February 2005

| Feb 18, 2005 | Daily Developments in EEO Law |

Daily Developments in EEO Law
by Paul Mollica (c) 2005

February 2005

Monday, February 28, 2005

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.” “The question is,” said Alice, “whether you CAN make words mean so many different things.” “The question is” said Humpty Dumpty “which is to be master – that’s all.”

When a 3M executive fires an age-50 employee for being “redundant,” but the position she holds is unique, does the company’s eccentric use of the word “redundant” to support a job elimination in a reduction-in-force present circumstantial evidence of discrimination? The Eighth Circuit holds “no” in Stidham v. 3M Company, No. 04-1277 (8th Cir. Feb. 25, 2005).

While acknowledging that the dictionary definition of “redundant” is ordinarily “repetitive,” the panel found no disputed issue of fact that the 3M Company meant something different by its use of the word:

“Redundant as the term was used by 3M is clearly a term of art, not meant to encompass the ordinary meaning of the word. In depositions, 3M department managers gave definitions of the term ‘redundant positions’ that were slightly different but similar in all material respects. 3M department managers define ‘redundant positions’ as those positions whose duties could be eliminated or reassigned to others without negatively impacting plant efficiency or customer service. If we examine her position under 3M’s definition of redundant, which we must, the Environmental Administrator position easily fits within that definition. The position of Environmental Administrator was relatively new, only a few months old, and one which 3M operated without for most of its long history.”

That executives at the 3M Company did not evaluate six employees outside the protected group for “redundancy” did not detract from its legitimacy, where the plaintiff supposedly provided no evidence that any of the six positions met the company’s criteria for “redundancy.”

Friday, February 25, 2005

Summary judgment is reversed on a Title VII/§ 1981 claim that a union fomented race harassment against a Latino worker who complained about a fellow employee, in Eliserio v. United Steelworkers of America, No. 03-3888 (8th Cir. Feb. 24, 2005) . Although the circuit holds that a union is not liable for policing race harassment by its members, here the record (viewed in the light most favorable to plaintiff) revealed possible union complicity with the harassment.

The plaintiff (who was in the bargaining unit, but not a member) complained to management about racial harassment; the company fired the employee, but he was reinstated in the course of grievance proceedings. Graffiti began to appear throughout the plant referring to “Taco Bob,” “Ratelserio” (complete with drawings of the plaintiff as a rat), and “a woman gave birth to a taco shaped turd and she named him Bob.” After the plaintiff complained, there subsequently appeared pre-printed, union-issued “No Rat” stickers sprouting on union members personal belongings. The plaintiff filed suit against the union and divisional chairman.

The Court of Appeals, while reaffirming that the union was not vicariously liable for its members’ misbehavior, held that the plaintiff presented a triable issue of fact over whether the “No Rat” stickers were intended to be associated with the rat graffiti. It also found that a statement by the union steward that they would “stop at nothing to get rid of” plaintiff was not hearsay under FRE 801(d)(2).

Thursday, February 24, 2005

As long as the circuits continue to be split over how to instruct juries on Title VII claims, we will continue to see cases like this one, Rodriguez-Torres v. Caribbean Forms Mfg., Inc., No. 03-2223 (1st Cir. Feb. 22, 2005). Simple summary: Plaintiff wins a Title VII sex discrimination case, alleging wrongful termination caused when her position was eliminated. Defendant claims in a Rule 50 JMOL motion that, under the burden-shifting charge given the jury (unobjected to by either side), plaintiff was obliged to prove that the position was filled by someone outside of the protected class, which she did not do. It turns out that the charge misstates well-settled circuit law that this prima facie element is lifted in reduction-in-force cases.

The Court of Appeals affirms denial of the JMOL motion, analyzing the problem of the erroneous charge as follows:

“Ordinarily a jury instruction given without objection becomes the law of the case and establishes the standard by which the sufficiency of the evidence is measured on appeal. See Scott-Harris v. City of Fall River, 134 F.3d 427, 442 & n.16 (1st Cir. 1997), rev’d on other grounds, 523 U.S. 44 (1998). We do, however, recognize a narrow exception for jury instructions that are patently incorrect. See Foster-Miller, Inc. v. Babcock & Wilcox Canada, 210 F.3d 1, 8 (1st Cir. 2000). Where the jury was, without doubt, wrongly instructed, we apply the proper legal standard in assessing the evidentiary support for the verdict. See United States v. Zanghi, 189 F.3d 71, 79-80 (1st Cir. 1999).

“This exception applies here. We have held several times that a plaintiff need not demonstrate that a new employee was hired or a current employee was formally designated as a replacement in order to satisfy the fourth prong of the prima facie case. We first stated this principle in Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). There, in the course of describing replacement as one of the prima facie elements in a wrongful termination case, we cautioned that ‘[a] replacement need not be sought from outside the company . . . nor need he be designated formally as such.’ Id. at 1013 n.11.

* * * *

“Applying this authority, the jury should not have been instructed that Rodriguez had to prove that Ramallo hired a new employee or designated a current employee as Rodriguez’s replacement in order to satisfy the fourth element of the prima facie case. Rather, to establish the replacement element, Rodriguez had to show that Ramallo had a continuing need for the work that she was performing prior to her termination. See Keisling, 19 F.3d at 760. She did not, however, have to show that the replacement was new to the company or specially designated as such. See Loeb, 600 F.2d at 1013 n.11. Measured against this standard, the proof that Restrepo and Torres assumed Rodriguez’s tasks, in addition to performing their original duties, was adequate to establish the final element of the prima facie case.” (Foot notes omitted)

All of this effort to rescue an otherwise valid verdict, because a district court and two parties’ counsel overlooked a patent misstatement in the charge. And understandably overlooked it, in the hurlyburly of trial, because pretext standards grow more specialized with each passing year. So if judges and lawyers can get the law wrong, why do we ask juries to walk into the same thicket when the overarching question (discrimination) is so straight-forward?

Wednesday, February 23, 2005

Here’s a rare exegesis on the issue on Title VII retaliatory harassment: Noviello v. City of Boston, No. 04-1719 (1st Cir. Feb. 16, 2005). The plaintiff, a parking enforcement officer, alleges (at the summary judgment stage) that her superior officer forcibly removed her brand hung it outside his van’s outside mirror as a trophy. Plaintiff’s complaints as harassment led to the alleged assailant being suspended and then fired. There then followed a string of harassing events by co-workers, enforcing the code of silence (shunning, calling her a “rat,” conspicuously taking up a collection to pay for the harasser’s legal defense), culminating in plaintiff nearly being hit by a van driven by a city employee.

The First Circuit reversed summary judgment on the issue of co-worker, retaliatory harassment. After recognizing that such a claim existed under federal and state law, it exposed a wrinkle that made retaliatory harassment claims (in its judgment) somewhat different from other kinds of harassment:

“Retaliatory harassment, however, requires a more nuanced analysis. The very act of filing a charge against a coworker will invariably cause tension and result in a less agreeable workplace. The target of the complaint likely will have coworker-friends who come to his defense, while other coworkers will seek to steer clear of trouble by avoiding both the complainant and the target. Although admittedly a source of unpleasantness in the workplace, such behavior should not be seen as contributing to a retaliatory hostile work environment. After all, there is nothing inherently wrong either with supporting a friend or with striving to avoid controversy. We think it follows that those actions that are hurtful to a complainant only because coworkers do not take her side in a work-related dispute may not be considered as contributing to a retaliatory hostile work environment. It is only those actions, directed at a complainant, that stem from a retaliatory animus which may be factored into the hostile work environment calculus.” (Citations omitted.)

Affirming summary judgment on the underlying sex harassment claim, the First Circuit concluded that the single event (the assault) was time-barred under state law. Under federal law, while the claim was timely, the court found as a matter of law that the harasser was not a supervisor for purposes of Faragher/Ellerth (following the most conservative view hewed by the Seventh Circuit in Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1033 (7th Cir. 1998)), and that the city took otherwise reasonable precautions to deal with the harassment.

Tuesday, February 22, 2005

Pardon my absence last week (I was sidelined by a trip to California). Here’s a tidy case from last Friday demonstrating that, sometimes, a raise may constitute an “adverse employment action” under Title VII. In Gillis v. Georgia Dep’t of Corrections, No. 04-11014 (11th Cir. Feb. 18, 2005), the plaintiff received a three-percent “met expectations” raise instead of the five-percent “exceeded expectations” raise she believed she earned, a difference of $912.36 per year. The court of appeals, reversing summary judgment, held that the lower evaluation and raise presented an “adverse employment action”:

“We hold that an evaluation that directly disentitles an employee to a raise of any significance is an adverse employment action under Title VII. We note that this case does not involve disentitlement to a de minimus raise; rather, the denial of the raise at issue here was an employment decision that significantly affected Gillis’s compensation. The initial burden of establishing a prima facie case of discrimination is not onerous, and Gillis has carried that burden here. Gillis suffered an adverse employment action, and established a prima facie case of discrimination.”

This case demonstrates the logical limit of the “adverse employment action” bar, erected by courts to screen out cases deemed de minimus. A decision-maker — hearing of plaintiff’s objection to her review — reportedly said in this case (to witnesses) “ain’t [it] like a f*****g n****r to complain.” I have always believed that is a court were faced with such blatant and appalling evidence of a racial motivation, it would balk at imposing a de minimus standard. In this case, I suspect that’s exactly what happened.

Tuesday, February 15, 2005

I am not certain why, in the teeth of cases like Sutton and Toyota Motors, plaintiffs continue to proceed with Americans with Disabilities Act cases predicated on the major life activity of “working.” Here comes Kupstas v. City of Greenwood, No. 04-2081 (7th Cir. Feb 15, 2005) to remind us once again just how nearly impossible such cases are to win.

In this case, the judge below denied summary judgment on the issue of whether plaintiff (a truck driver/laborer) was “disabled” because of medical lifting restrictions (though it granted summary judgment on whether plaintiff couls perform the essential functions of his job). The court of appeals affirmed on the ground that the employee didn’t have standing as a disabled person, because the work restrictions did not substantially limit his ability to work a wide range of jobs: “The class of jobs requiring raking or shoveling for more than 2 hours continuously or 4 hours in a day is undeniably narrow and does not, without more, indicate Kupstas’s ‘substantial foreclosure from the job market.’ . . . . Kupstas’s failure to provide evidence as to a class or range of jobs for which he otherwise was qualified, and from which Greenwood perceived him to be excluded, is fatal to his case.”

After Toyota Motors, the courts have placed a premium on showing substantial limits in other day-to-day activities besides working (sleeping, caring for oneself, etc.) that would fit the same facts. I cannot understand why plaintiffs’ counsel apparently keep missing this.

Monday, February 14, 2005

Fed. R. Civ. P. 36 requests to admit are powerful, underused tools to rein in a case at the earliest stages. Unlike interrogatories, which are always subject to amendment, a request to admit — once answered — cannot be withdrawn without leave of court. Just how powerful a tool requests to admit may be is shown by today’s decision, Banos v. City of Chicago, No. 04-2212 (7th Cir. Feb. 14, 2005) .

The case challenged a tripartite process for promoting police sergeants to lieutenants (written test, assessment exercise, and merit selection). Minority officers claimed that the written test and assessment exercise had a disparate impact on minorities. Plaintiffs’ counsel originally plead that the two practices unlawfully discriminated on the basis of race. But after an intervening Seventh Circuit decision appeared to condemn that theory, counsel amended the complaint to pursue an alternative argument that the city violated Title VII by limiting merit selection to 30% of promotion decisions. The defendant then made a request for an admission of the validity of the written test and assessment exercise, which the plaintiffs admitted. But after another turn in the circuit law, the plaintiffs tried to resurrect the original theory that it had abandoned. But the district court denied leave for the plaintiffs to withdraw their admissions. Summary judgment was granted to defendant.

The entire issue on appeal was whether the district court abused its discretion by denying leave to withdraw. The Seventh Circuit held not. “Admissions, in some ways, are like sworn testimony. Once one is made, there is no need to revisit the point. Under Rule 36(b), matters admitted are ‘conclusively established.” Of course, this tactic works with affirmative defenses as well, and plaintiffs’ counsel ought to serve them early in the case to clear out the weeds among the defenses pled in the answer.

Friday, February 11, 2005

The Seventh Circuit continues to look for special circumstances to support a claim of discrimination in favor of an historically disadvantaged class, in Preston v. Wisconsin Health Fund, No. 04-2384 (7th Cir. Feb. 9, 2005).

A male employee claims that he was denied a promotion in favor of a female employee with whom (it was rumored) the executive was enjoying romantic company. The law is settled enough that discrimination in favor of a paramour is not “sex” discrimination under Title VII. But to close the loop, the panel opinion (authored by Judge Posner) also addresses the circumstances when men might be reasonably suspected to discriminate in favor of women:

“It is not surprising when women discriminate in favor of women any more than it is surprising men discriminate in favor of men. It is surprising, in many though not all cases, when men discriminate against men in favor of women. Two situations that have been identified in the cases where it is not surprising. The first is where the men running the company are under pressure from affirmative action plans, customers, public opinion, the EEOC, a judicial decree, or corporate superiors imbued with belief in ‘diversity’ to increase the proportion of women in the company’s workforce. Hill v. Ross, 183 F.3d 586 (7th Cir. 1999); Wheeler v. Missouri Highway & Transportation Comm’n, 348 F.3d 744, 749 (8th Cir. 2003); Brunet v. City of Columbus, 1 F.3d 390 (6th Cir. 1993). The second situation is where the jobs in question are traditional ‘women’s work,’ such as nursing, which the men running the company believe women can do better than men; fixated on this stereotype they refuse to make an individualized assessment of male applicants. Lynn v. Deaconess Medical Center-West Campus, 160 F.3d 484 (8th Cir. 1998); Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971); cf. Mississippi University for Women v. Hogan, 458 U.S. 718, 720- 21 (1982).”

Though admitting that the list of special circumstances is not “closed,” the panel opinion serves as a caution for all reverse discrimination-type claims.

Wednesday, February 9, 2005

A hasty dismissal of a Title VII retaliation complaint (in June 2004) is hastily reversed by the Seventh Circuit in Flowers v. Columbia College, No. 04-2899 (7th Cir. Feb. 8, 2005). The employer college (according to the plaintiff’s complaint) loaned one of its employees (Flowers) out to a local high school to serve as a counselor. The high school prevented him from wearing religious headgear on the property. He filed a charge with the EEOC (naming the school district as the employer) and, in response to the high school’s complaints, the college fired him. Plaintiff proceeded with a Title VII retaliation case. The district court judge dismissed under Fed. R. Civ. P. 12(b)(6) on the ground that “Title VII allows an employer to sack a person who complains about discrimination elsewhere.”

Less than two weeks after oral argument, the panel reversed. Judge Easterbrook wrote that the district court judge misapprehended the scope of the statute:

“[S]uppose that Flowers had worked at General Motors before entering the College’s employ, and that the College fired him on learning that he had complained about General Motors’s failure to accommodate his desire to wear religious garb. Again §2000e-3(a) would entitle Flowers to relief; no one may follow the rule ‘we do not employ anyone who has ever made a Title VII charge against a prior employer.’ There is no better reason why ‘against his employer’ should be interpolated into the anti-retaliation clause when the original charge concerns a borrowing employer, such as a firm to which a temporary service sends its staff, or (here) the Chicago public schools.”

Thus, bottom line, “No employer may retaliate against someone who makes or supports a charge of discrimination against any employer.” The case returns for discovery and adjudication on the merits.

Monday, February 7, 2005

In Hill v. Rent-A-Center, No. 03-15608 (11th Cir. Feb. 4, 2005) , the court denied an employee — part of whose duties involved carting goods across state lines — an exemption from coverage under § 1 of the Federal Arbitration Act. Famously, Circuit City v. Adams, 532 U.S. 105 (2001), interpreted this exemption (for a “class of workers engaged in foreign or interstate commerce”) to apply narrowly to “transportation workers” — by a five-to-four majority. The Eleventh Circuit panel, in turn, holds that being engaged in interstate transportation is not enough; the employee must in the “class” of employees deemed to be in the “transportation industry.” As the panel held:

“The emphasis [in the FAA], therefore, was on a class of workers in the transportation industry, rather than on workers who incidentally transported goods interstate as part of their job in an industry that would otherwise be unregulated. There is no indication that Congress would be any more concerned about the regulation of the interstate transportation activity incidental to Hill’s employment as an account manager, than it would in regulating the interstate ‘transportation’ activities of an interstate traveling pharmaceutical salesman who incidentally delivered products in his travels, or a pizza delivery person who delivered pizza across a state line to a customer in a neighboring town.”

An account manager who delivers goods to customers, apparently, does not fall within the exemption’s compass. The court thus affirmed the order compelling arbitration.

Friday, February 4, 2005

The Supreme Court in Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 194 (2002), described a disability under the ADas a condition that is “permanent or long term.” How “long” must “long term” be? The First Circuit did a bit of throat-clearing on that issue before affirming summary judgment on a less contested ground, in Guzmán-Rosario v. UPS, Inc., No. 04-1046 (1st Cir. Feb. 3, 2005) (available on the First Circuit website). Plaintiff (who was terminated on “theft of time” grounds) contended that her ovarian cysts constituted a disability. Because the condition is not permanent, but can endure for months, the court asseyed whether it could be considered a disability at all. “The statute itself says nothing about duration and nothing in the term “disability” or its definition gives a judge, and still less a jury, much guidance. The problem is primarily a policy choice to which Congress did not speak clearly; and the Supreme Court has done no more than extrapolate, from some estimated numbers of those to be covered, that severe restrictions of very important activities were what Congress had in mind. See Toyota, 534 U.S. at 197-98. Until the Supreme Court fine-tunes its interpretation, it will be unclear how lower courts should deal with periods between, say, 6 and 24 months.” Finding the issue too close for resolution, it affirmed summary judgment on the more customary ground that the disability did not pose a substantial limitation on any major life activity.

Thursday, February 3, 2005

After my grousing a couple of weeks ago about a questionable sex harassment decision, LeGrand v. Area Resources for Community and Human Services (ARCHS), No. 04-1284 (8th Cir. Jan. 20, 2005) (available on Eighth Circuit website) — and check this link for a management attorney’s view of the same decision (“Priest as Harasser in the Employment Law Context”) — here’s a fairly decent decision in a case set at a correctional school in New Mexico. Consuelo Chavez v. State of New Mexico, No. 02-2224 (10th Cir. Feb. 2, 2005).

The alleged harassment of the four female staffers ran the gamut: verbal abuse by male superiors, come-ons (looks, leers, crude double entendres), workplace porn, unsubstantiated write-ups, and even physical attacks. Admittedly, much of the alleged harassment was not sexual in nature, though it was directed at female employees. So the panel asked itself “whether Plaintiffs can use a substantial amount of arguably gender-neutral harassment to bolster a smaller amount of gender-based conduct in opposing summary judgment?” Surprisingly, given the loaded question, the panel sends the case back for trial anyway:

Our precedents say that they can. “Facially neutral abusive conduct can support a finding of gender animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly gender-discriminatory conduct.” O’Shea, 185 F.3d at 1097. This is because what is important in a hostile environment claim is the environment, and gender-neutral harassment makes up an important part of the relevant work environment. Conduct that appears gender-neutral in isolation may in fact be gender-based, but may appear so only when viewed in the context of other gender-based behavior. Penry, 155 F.3d at 1262. Thus, when a plaintiff introduces evidence of both gender-based and gender-neutral harassment, and when a jury, viewing the evidence in context, “reasonably could view all of the allegedly harassing conduct . . . as the product of sex and gender hostility,” then “it is for the fact finder to decide whether such an inference should be drawn.” Shea, 185 F.3d at 1102, 1097 (emphasis omitted). (Emphasis added)

Yes, give it to the jury — what a happy, Seventh Amendment thought! As a sidelight, I have suggested before that harassment case outcomes can sometimes be explained by the workplace context of the allegations. Harassment in a correctional facility, even a relatively soft one like a juvie hall, is magnified because the employees are essentially confined with the harassers and have fewer practical options.

Tuesday, February 1, 2005

I finally got my circuit summaries up-to-date through today (except for the Tenth Circuit, which is still staring at me in a huge pile — my continued apologies to my Plains/Rocky Mountain brethren). It’s been kind of a dead time recently for EEO cases in the U.S. Courts of Appeal.

A case from about a week ago, Okruhlik v. Univ. of Arkansas, No. 03-2721 (8th Cir. Jan. 24, 2005) (available on Eighth Circuit website), shows signs of drift in the general direction of an internal exhaustion requirement for Title VII cases. The plaintiff, an instructor seeking tenure, believed that the Dean’s negative (and allegedly retaliatory) recommendation was the decisive step in the path to the University president (who held the final say-so on faculty hiring). Rather than soldier on to what she evidently believed was an inevitable rejection, the plaintiff filed her EEOC charge and eventually brought suit. The jury awarded $353,000 in damages, but the district court took it away on a judgment as a matter of law, holding that the plaintiff supposedly failed to prove that the Dean’s thumbs-down was an “adverse employment action.”

On appeal, the district court was affirmed.

“[H]ere the president never reviewed Okruhlik’s candidacy because Okruhlik declined to seek review of the vice chancellor’s negative recommendation. The University of Arkansas policy establishes that a final decision on tenure has not been made until the president has issued his decision. This conclusion does not automatically apply to all tenure cases and we will take a case-by-case approach, looking at the specifics of each school’s policies. In this case, the president is the only official authorized to grant tenure. The president, however, ‘will not consider awarding tenure to a faculty member in a probationary status without the prior recommendation of the faculty member’s departmental faculty, chairperson, dean, chief academic officer, and the chief executive officer of the campus concerned.’ Board Policy 405.1 § IV(A)(7) (emphasis added).”

The court likewise affirmed judgment as a matter of law on a retaliatory harassment claim on the ground that the plaintiff waited too long to raise her complaints with the campus authorities. Lesson: campus procedures are to be obeyed, even in the face of futility.



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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