May 2005

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

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

May 2005

Tuesday, May 31, 2005

If the EEOC elects to proceed against an employer on behalf of a plant-wide class of employees, is that decision judicially reviewable when the original charge cited only a single sexual harassment event? The Seventh Circuit says “no,” in an interlocutory appeal from denial of summary judgment, EEOC v. Caterpillar, Inc., No. 05-8006 (7th Cir. May 27, 2005). Judge Posner explains why EEOC cases are different from private cases, where claims in litigation may be limited to the original charge:

“The difference between the two classes of case is that exhaustion of administrative remedies is an issue when the suit is brought by a private party but not when the Commission is the plaintiff. Were the private party permitted to add claims that had not been presented in the administrative charge filed with the EEOC, the Commission’s informal procedures for resolving discrimination charges, see 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.24, would be by-passed, in derogation of the statutory scheme. . . .That is not an issue when the EEOC itself is the plaintiff, which is why a suit by the EEOC is not confined ‘to claims typified by those of the charging party,’ and why Caterpillar is mistaken to think that the EEOC’s complaint must be closely related to the charge that kicked off the Commission’s investigation. ‘Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint are actionable.’ The charge incites the investigation, but if the investigation turns up additional violations the Commission can add them to its suit.” [Citations omitted]

Finding the EEOC’s determination non-reviewable, the matter was remanded for further proceedings.

Thursday, May 26, 2005

Continuing to mine the Faragher and Ellerth vein from yesterday, here’s Williams v. Missouri Dep’t of Mental Health, No. 04-1510 (8th Cir. May 25, 2005), a case that gratuitously affirms the doubtful precedent in McCurdy v. Arkansas State Police, 375 F.3d 762 (8th Cir. 2004). McCurdy held that in a single-incident supervisor harassment case, the employer may avoid liability even when the employee complains immediately, if the employer takes “swift and effective” action on the complaint. In this case, the employees contended that the acts of harassment (a supervisor who exposed himself, and fondled and grabbed the two plaintiffs) were so severe and pervasive that liability for hostile work environment attached before they ever had an opportunity to complain (although one plaintiff did complain, albeit after she left the worksite). The panel affirmed summary judgment, holding that “This case does not involve a single, severe, unanticipated act of sexual harassment. The sexual harassment in this case involved ongoing sexual harassment of exactly the type Faragher and Ellerth address.”

This by itself would have been sufficient, but the panel majority (and concurring judge) went on to state that under McCurdy, the affirmative defense applies even to single-incident harassment where the employee timely complains. “In so holding [in McCurdy], we reasoned that ‘[t]o reach a conclusion that the affirmative defense is unavailable in single incident cases in which the employee takes advantage of preventative or corrective opportunities provided by the employer and the employer thereafter takes swift and effective action to avoid further offensive conduct stands the underlying policy behind the affirmative defense on its head.'”

I doubt that this is going to make a difference in many cases (how many single-event harassment cases do you ever see?), but it continues to trouble me that these decisions flatly violate Faragher and Ellerth, which makes the defense categorically unavailable if the employee reasonably and timely complains about harassment.

Wednesday, May 25, 2005

Under Faragher and Ellerth, employers facing supervisor harassment claims must — if they are to avoid vicarious liability — show that the employee waited too long to complain. In Roebuck v. Washington, No. 04-7063 (D.C. Cir. May 24, 2005), the defendant obtained the following instruction in the issue:

“You must find for the defendant District of Columbia if you find defendant has proved by a preponderance of the evidence first that defendant District of Columbia exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and second, that Roebuck unreasonably failed to take advantage of any preventive or corrective opportunities provided by the District of Columbia to avoid harm. . . . . [P]roof that plaintiff Roebuck did not follow a complaint procedure provided by defendant District of Columbias employer will ordinarily be enough to establish that plaintiff Roebuck unreasonably failed to take advantage of a corrective opportunity.”

While rejecting the instruction, the panel affirmed the judgment against the plaintiff (emphasis added)

“The court twice instructed the jury, correctly, that the Department had to prove ‘Roebuck unreasonably failed to take advantage of any preventive or corrective opportunity.’ The only ‘unreasonable failure’ at issue was Roebuck’s failure to complain earlier. The court’s further instruction about ‘proof that plaintiff Roebuck did not follow a complaint procedure provided by defendant’ was therefore surplusage; it would better have been omitted, but we see no reason to think the jury could have been confused by the instruction and somehow concluded that Roebuck never complained at all.”

Tuesday, May 24, 2005

A bad case of heartburn for the anonymous lawyer(s) who gave a really big client some bum advice. Some smart guy evidently told a division of General Dynamics that it could broadcast a general e-mail to its employees imposing a mandatory arbitration program. The First Circuit tosses out the release in Campbell v. General Dynamics Government Systems Corp., No. 04-1828 (1st Cir. May 23, 2005) , affirming a district court’s order refusing to compel arbitration of a disabilities discrimination claim.

The flaw was not, as the district court found, the use of e-mail to transmit the policy. The panel found e-mail to be an acceptable alternative, citing the E-Sign Act, 15 U.S.C. § 7001(a), which provides that electronic documents may be enforced as contracts.

But at this company (and, I presume, many others), binding personnel matters were routinely conducted on hard copy documents, which were also placed in employee’s personnel files. By not requiring the employee to acknowledge the e-mail in any fashion (such as clicking a box on the computer screen) — indeed, using a “no response required” format — the employer failed adequately to call attention to this new putative term of employment.

The content of the e-mail was also found insufficient. It did not state that acceptance of the policy waived a judicial forum, or constituted a contractually binding term. As the panel held:

“To be blunt, the e-mail announcement undersold the significance of the Policy and omitted the critical fact that it contained a mandatory arbitration agreement. The result was that a reasonable employee could read the e-mail announcement and conclude that the Policy presented an optional alternative to litigation rather than a mandatory replacement for it.”

Although the policy purported to amend the company’s personnel handbook, which may constitute a contract under Massachusettes law, the panel held that General Dynamics’ course of dealing did not place employees on notice that promulgation of a new handbook would be contractually binding.

The First Circuit seems to have unshackled GD’s employees, for the time being.

Monday, May 23, 2005

Plaintiffs in discovery often try casting a net as wide as possible, in hopes of finding a kernel of useful information, or possibly to set the stage for negotiating with the other side. The Eighth Circuit in Sallis v. Univ. of Minnesota, No. 04-2784 (8th Cir. May 20, 2005) recently expressed its disapproval of this approach, citing year 2000 amendments to Fed. R. Civ. P. 26 said to give district courts more latitude to control discovery.

Plaintiff filed a race discrimination, retaliation and harassment case against his employer, and sought in discovery of discrimination complaints against the entire university system. He averred that the university maintained the complaints in “an easily accessible, central database,” but the district court — affirmed by the Eighth Circuit — still found the request overbroad: “Sallis’s discovery requests had no limitation-he sought information on every allegation of discrimination against the university-by all complainants in all departments. However, Sallis spent the last ten years working in just one UM department, Parking and Transportation Services, and his allegations of discrimination focus on the behavior of the supervisors there.” The record does not indicate why he asked for all complaints across the university, though it would appear to be relevant to rebut a Kolstad good faith defense if the employer uses a central office to process complaints.

Thursday, May 19, 2005

The yo-yoing appeals of Ingle v. Circuit City come to an end, now. This is the message of the Ninth Circuit’s terse decision yesterday, Ingle v. Circuit City, No. 04-55927 (9th Cir. May 17, 2005). Catherine Ingle commenced her state and federal law employment claims in 1999, and endured six years of litigation over the arbitrability of her claims. Having succeeded on the original appeal (328 F.3d 1165 (9th Cir. 2003)), and avoid cert in the U.S. Supreme Court, the employer once again petitioned to compel arbitration, citing an intervening Ninth Circuit decision, EEOC v. Luce Howard, 345 F.3d 742 (9th Cir. 2003) (en banc), which it claimed undermined the original Ingle ruling. The Ninth Circuit held otherwise:

Luce Forward did not limit or overrule Ingle I; nor did Luce Forward even address or cite Ingle I. Ingle I held that, as a matter of California contract law, Circuit City’s compulsory arbitration agreement was unconscionable and hence, unenforceable. Ingle, 328 F.3d at 1180. Luce Forward did not examine California contract law at all. Rather, Luce Forward was a narrowly written decision overruling Duffield [v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998)] and holding that the Civil Rights Act of 1991 does not preclude an employer from requiring an employee to arbitrate Title VII claims as a condition of employment. See Luce Forward, 345 F.3d at 745.

Circuit City also got cuffed with sanctions under FRAP 38 for taking a frivolous appeal, which strikes me as about time.

Wednesday, May 18, 2005

Perhaps because the D.C. Circuit sees relatively few employment discrimination cases, and doesn’t suffer the ennui of other courts of appeals, I have found some pretty decent case law coming out of this court, especially when Judge Harry Edwards is at the helm.

In George v. Leavitt, No. 03-5356 (D.C. Cir. May 17, 2005), the court reversed summary judgment in a Title VII race, sex and national origin termination case against the EPA. Relations deteriorated between a white male supervisor (Tom Kelly) and a probationary employee originally from Trinidad and Tobago (Diane George), culminating in the following event: “On March 2, according to George, Brown came into George’s office and, on her way out, violently and angrily kicked a box that she stumbled over. Noticeably shaken by this incident, George met with Kelly to inform him of the incident.” Following recriminations and follow-up investigations, George was fired shortly thereafter.

The district court found that the plaintiff failed to make a prima facie case because she did not identify any comparable employees treated better than she was, nor was she replaced by someone outside the protected class. But the court of appeals concluded this was error. It held that in the absence of a comparable employee and replacement by a non-minority, the employee could point to other circumstances tending to undermine the employer’s rationale for the termination. “In the context of a discharge claim, this method of establishing the prima facie case would require a showing that the discharge was not attributable to the two analogous common legitimate reasons for discharge: performance below the employer’s legitimate expectations or the elimination of the plaintiff’s position altogether.”

The prima facie case was thus established as follows:

“Applying the correct legal standards to the record at hand, it appears that George made out a prima facie case. She is a member of a protected class, she suffered an adverse employment action, and her discharge gave rise to an inference of discrimination, because, as we explain below, George created a genuine issue as to whether she was performing at a satisfactory level and her discharge was not precipitated by the elimination of her job.”

Moving to pretext, the court of appeals also found that “a reasonable jury could conclude that George did not suffer from ‘performance and conduct deficiencies’,” as the defendant contended:

“While there is no doubt that the record contains evidence to support EPA’s claim that George had ‘conduct and performance deficiencies,’ this evidence is not undisputed. For one thing, George’s January 1999 performance review tends to refute the suggestion that she had problems on the job. The evaluation states that George ‘routinely’ meets her deadlines, that she ‘[works effectively with office staff,’ and that her work ‘require[s] no more than minor revisions’ and ‘shows considerable thought, insight and creativeness.'”

The plaintiff also presented deposition evidence of co-workers, and her own affidavit, to contradict the claim that she was argumentative. And, the court reminded “an employer’s reason need not be false in order to be pretextual. Here, for instance, George has also proffered evidence that the white male engineers in her office escaped discipline despite engaging in verbal arguments and incorrectly handling Hotline messages, the same conduct for which George allegedly was fired.” For these reasons, the court found that she made out a triable issue of fact on pretext.

Tuesday, May 17, 2005

Two EEO cases are up for further review.

In the Supreme Court, certiorari was granted Monday in Arbaugh v. Y & H Corp., 380 F.3d 219 (5th Cir. 2004), which presumably will resolve two issues: First, whether the fifteen-minimum number of employees in a Title VII case runs to subject matter jurisdiction, or is simply an element of proof; and second, what standard (economic realities, agency, etc.) determines who is an “employee” for purposes of counting up the fifteen. Both issues that have divided the circuits for decades.

Meanwhile, in the Ninth Circuit, a majority voted to vacate and rehear en banc the Title VII challenge to differential grooming standards in Jesperson v. Harrah’s Operating Co., 392 F.3d 1076 (9th Cir. 2004) (Find my prior write up here.)

Friday, May 13, 2005

Here’s a decision for an unlucky employer whose liability hung on two, incautious words: “plantation mentality.”

In Waite v. Board of Trustees of Ill., No. 04-2403 (7th Cir. May 12, 2005) , the court affirmed a jury verdict for national origin discrimination by a Jamaican woman who suffered a suspension because her manager thought she failed to perform her duties regarding renewal of a $500,000 contract.

“The basis for Waite’s national origin discrimination claim arose at a meeting about a month before Armster began the suspension proceedings. This meeting was attended by two other department employees who voiced complaints about Waite. [Waite’s manager] Armster, an African-American, then commented that she thought Waite displayed a ‘plantation mentality.’ Waite testified that this remark was a reference to her national origin ‘because usually it was said that Jamaicans in particular and Caribbean folks in general thought they were white and treated African-Americans like slaves.'”

From this evidence, the Seventh Circuit affirmed a finding of discrimination.

“It is true that the ‘plantation mentality’ statement is the only evidence in the record that points to discriminatory intent; but, in this case, it is sufficient. Waite provided an explanation of what she believed this statement meant. Armster did nothing to refute Waite’s analysis, although she could have done so during her district court testimony. Armster did, however, testify that one of the reasons she recommended that Waite be disciplined was because she was outraged that Waite would ask her to finalize the contract. Based on this evidence, the jury could have reasonably concluded that Armster disciplined Waite because Waite, a Jamaican, left work for Armster, an African- American, to complete; Armster felt like Waite was treating her like a slave and displaying the ‘plantation mentality’ she had accused Waite of exhibiting approximately one month before. The jury was permitted to infer that this ‘plantation mentality’ remark was evidence of discriminatory animus.”

Thursday, May 12, 2005

As I often warn here, as plaintiff’s counsel you must always evaluate your client’s remedy early in the case, and never lose sight of it. This lesson is illustrated by Akouri v. State of Florida Dep’t of Transportation, No. 04-12004 (11th Cir. May 11, 2005), a case (as with yesterday’s entry, Voeltz v. Arctic Cat) where the plaintiff won liability at trial, but lost all of his damages on appeal. The panel reversed denial of JAML and tossed $148,000 in back pay and $552,000 in compensatory damages awarded by a jury in a Title VII national origin case.

The panel expressed frustration with and incredulity about plaintiff counsel’s performance at trial. The back pay award could not be sustained, for instance because the record contained no evidence of the employee’s current level of pay:

“While the record contains evidence of a salary range indicating the amount Akouri would have earned had he received the promotion, the record is devoid of any evidence of his actual salary at the time he was employed by the DOT. Thus, there was no figure from which the jury could have reasonably calculated net lost wages (the difference between what Akouri was earning and what he could have earned if promoted). It is elementary that a plaintiff must, at a minimum, show his earnings during his employment before the jury can begin a reasonable calculation of a backpay award. This could have easily been accomplished by asking one question to Akouri or introducing into evidence a pay stub.”

“Interestingly, Akouri makes no effort to explain the glaring absence of the evidence the district court, in its order, deemed so essential to his back-pay damages claim, and instead, chooses to circumvent the issue in its entirety.”

Compensatory damages were also vacated because there was no evidence of an injury to plaintiff:

“In the instant case, the only evidence Akouri presented that could conceivably be linked to emotional distress related to lost job opportunities. A review of the record reveals that Akouri made no attempt to describe any kind of harm, mental, emotional, or otherwise, arising from the discrimination. Despite Akouri’s characterization of his testimony as ‘describing the pain’ of not being promoted, Akouri not once described any ‘pain.'”

“Again, if Akouri suffered emotional pain or distress, it could have been presented by one or more direct questions during his testimony. No such effort was made.”

“It is apparent that the matters of Akouri’s salary and any emotional pain or psychological injuries could have been covered in minutes.”

Finally, the court remanded for reconsideration of attorneys fees in light of the remaining relief — nominal damages. “It is incongruous that the affirmance of nominal damages on the failure to promote claim could be the basis of a claim for attorneys’ fees when the monetary awards by the jury are being vacated as a result of the failure of counsel. Should such a request be made, the district court may consider the performance of counsel.” Ouch, again!

Wednesday, May 11, 2005

The warning is out: With Desert Palace v. Costa, you can win the jury over on the merits and still wind up with an empty bag. In Voeltz v. Arctic Cat, Inc., No. 04-2810 (8th Cir. May 11, 2005), the ADA plaintiff (who suffered from MS) was not recalled to work after a seasonal layoff, owing to his medical restrictions. The jury found that the employer (1) did not reasonably accommodate plaintiff and (2) transferred plaintiff and failed to rehire him because of his disability (disparate treatment). On the first claim, plaintiff received a $71,000 award, keyed to his back pay claim; the court tacked on $74,626 in front pay. But on the latter claim, the jury entered a finding that the employer would have reached the same decision anyway, vitiating compensatory and back-pay remedies.

On appeal, the court affirmed liability but lined out all but nominal damages. On the failure to accommodate claim, “the jury did not make a finding that Voeltz lost his job because of Arctic Cat’s failure to engage in the interactive process and accommodate his MS. And if the jury coincidentally found $71,000 in actual damages without regard to the backpay evidence, those damages are purely speculative-there is no other evidence of actual money damages (from Arctic Cat’s failure to accommodate or any other of its actions) anywhere in the record.” Meanwhile on the disparate treatment claim, because of the jury’s finding on the affirmative “same decision” defense, where reinstatement “could not have been ordered as a matter of law because of the jury’s findings that Voeltz would not have been working at Arctic Cat regardless of his disability, Voeltz is not entitled to front pay as an alternative to reinstatement.”

The case was remanded for entry of a new judgment, and reconsideration of attorney fees that “reflect Voeltz’s limited success on the merits.” Ouch.

Tuesday, May 10, 2005

May an employer’s subjective evaluation process be tendered as proof that an employee was not “qualified” for a position for purposes of the McDonnell Douglas prima facie test? No, says Vessels v. Atlanta Independent school, No. 04-13729 (11th Cir. May 9, 2005), where a school psychologist (a white male) with an appropriate written score for a promotion allegedly flunked the interview process. “The panelists’ written evaluations, which they prepared without consulting one another, reflected a shared concern that Vessels was overly negative and too focused on [employer] AISS’s problems.” But as the Eleventh Circuit — reversing summary judgment — reminded, “subjective evaluations play no part in the plaintiff’s prima facie case. Rather, they are properly articulated as part of the employer’s burden to produce a legitimate race-neutral basis for its decision, then subsequently evaluated as part of the court’s pretext inquiry.”

The panel also distinguished case law holding that, to establish pretext, comparative qualifications for a promotion “must be so glaring that no reasonable impartial person could have chosen the candidate selected for the promotion in question over the plaintiff. . . . However, where the qualifications disparity is not the sole basis for arguing pretext, the disparity need not be so dramatic to support an inference of pretext.” Here, there was evidence included “the evidence of racially tinged statements by AISS decision-makers, the relative superiority of Vessels’ qualifications, AISS’s disregard of its own employment regulations, and Vessels’ rebuttal of many of AISS’s proffered justifications raise a genuine issue of material fact as to whether AISS’s articulated reasons for rejecting Vessels for the interim position were pretextual.”

Monday, May 9, 2005

In retaliation cases, courts place a gloss on the definition of “protected activity,” insisting that an employee have a “good faith” (even if mistaken) belief that the employer’s conduct violated federal anti-discrimination laws. This standard can be difficult to evaluate on the margins, especially in the sex harassment area. So the Eighth Circuit noted last Friday in Peterson v. Scott County, No. 04-2531 (8th Cir. May 6, 2005), a case where the employee suffered the following incidents: “Her supervisor made regular references to ‘old ladies,’ once did not allow her to participate in a training session because it was ‘too hard to train old ladies,’ and once commented that she ‘didn’t have the right parts’ to fill in shifts. A co-worker on one occasion commented that women were lazy and were not needed at the jail.” Two weeks following her complaint about the alleged harassment, she was terminated. The few events described above did not add up to sex harassment (and summary judgment was granted on that claim), but other claims — including retaliation — were remanded for trial. “The court’s understanding of what constitutes sexual harassment under Title VII is evolving; plaintiffs who reasonably believe that conduct violates Title VII should be protected from retaliation, even if a court ultimately concludes that plaintiff was mistaken in her belief.”

Friday, May 6, 2005

A couple of notable class action decisions, one employment and one tort, are handed down in consecutive days by the Fourth and Sixth Circuits. In Anderson v. Westinghouse Savannah River Co., No. 03-1150 (4th Cir. May 4, 2005), the court largely affirmed summary judgment on a 99-plaintiff, putative Title VII and section 1981 class action, which challenged company promotional policies. But a 2-1 panel majority remanded the class certification issue, finding that the putative lead plaintiff (who either lost her claims on summary judgment or dismissed them voluntarily) could no longer represent the class but could be substituted by another employee:

“While we express no opinion on whether or not the class action may fail for want of commonality or typicality, we remand to the district court the question of whether or not a class action should be permitted to proceed with respect to the ‘qualified to the interview stage, and from the interview stage to the selection stage.’ Upon remand, if a proper plaintiff or plaintiffs with grievances similar to those of Miss Anderson with respect to that discrete portion of the CBPS procedure presents himself to prosecute, himself, as a class representative, the district court should then decide whether a class action is maintainable and whether the n named plaintiff should represent the class.”

The third judge dissented in part from the remand, finding (on his view of the record) that the entire case had been dismissed on the merits and therefore there was nothing left to certify.

In Doe v. Miller, No. 03-6261 (6th Cir. May 5, 2005), a putative class action was filed by four plaintiffs concerning a political scandal — sexual abuse of minors who participated in a county summer work program. Before the class was certified, the lead plaintiffs dismissed their case and moved to have notice of the dismissal provided to the putative class members pursuant to Rule 23(e). The district court denied the notice on the ground that it believed that the members of the class were insufficiently numerous. Yet nearly 100 class members eventually came forward after the case was dismissed. Some were found time-barred by district courts because of the dismissal of the prior action (the Guy and Doe I cases); others obtained rulings finding the prior dismissal void, per Fed. R. Civ. P. 60(b)(4).

In the end, the various appeals were consolidated and the Sixth Circuit sided with the plaintiffs, finding that their due process interests were violated by dismissal of the class action without notice:

“Consistent with the majority rule that a district court should order Rule 23(e) notice where the putative class is likely to be prejudiced by the dismissal or settlement of a class-action suit, we conclude that the district court below abused its discretion in not providing notice in both Guy and Doe I. One key factor supporting our conclusion is that once the abusive activity at the Micro-City Government program was thrust into the open, the local media devoted substantial coverage to the abuse. This included coverage of the Guy and Doe I lawsuits. Such public attention presumably led putative class-action members to believe that their rights were being adequately represented by the Guy and Doe I plaintiffs. Without notice that these actions had been dismissed, the putative class members were likely lulled into believing that their claims continued to be preserved.”

Vacating the original judgment denying class certification, the panel held that “[b]ecause Guy is being reopened, however, there is no longer a final judgment determining the issue of class certification. We therefore remand the issue of class certification to the district court for reconsideration on the merits.”

Two class cases potentially brought back from the dead in two days. Good box score for plaintiffs this week!

Wednesday, May 4, 2005

A rare Older Workers Benefit Protection Act, 29 U.S.C. § 626(f), case circulates up on appeal in Thomforde v. International Business Machines Corp., No. 04-1538 (8th Cir. May 3, 2005). Plaintiff in 2001 learned that he was selected for termination and offered a severance package. Though the release was general (and expressly identified the ADEA), the document also stated:

“This covenant not to sue does not apply to actions based solely under the [ADEA], as amended. That means that if you were to sue IBM . . . only under the [ADEA], as amended, you would not be liable under the terms of this Release for their attorneys’ fees and other costs and expenses of defending against the suit. This Release does not preclude filing a charge with the U.S. Equal Employment Opportunity Commission.”

The court of appeals found that this reservation rendered the document too confusing for a lay employee to understand:

“Despite their distinct purposes, the differences between a release and a covenant not to sue are fairly amorphous and may not be readily apparent to a lay reader. The intended effect of the Agreement was to release the employee’s substantive claims under the ADEA, while preserving the employee’s right to challenge the validity of the release through a lawsuit, as provided by the regulations. See 29 C.F.R. § 1625.23(b) (precluding any waiver provisions that penalize a party for challenging the validity of a waiver). Yet, the Agreement does not explain how the provisions relate to each other or the limited nature of the exception to the covenant not to sue in light of the release of claims. Once IBM chose to use the legal terms of art in the Agreement, IBM had a duty to carefully explain the provisions. See 29 C.F.R. § 1625.22(b)(3) (‘Waiver agreements must be drafted in plain language . . . [and] usually will require the limitation or elimination of technical jargon . . . .’).”

In this case, the employee asked in-house counsel prior to signing what this language meant, but IBM refused to answer. The panel found as a matter of law that “the Agreement is not written in a manner calculated to be understood by the intended participants as required by the OWBPA.” There release was therefore found unenforceable under the OWBP and corresponding regulations, and summary judgment was reversed.

What defense attorneys drafted this language? God only knows how many other companies have used the same formula and are sitting on partially invalid releases.

Tuesday, May 3, 2005

Given the uncounselled state of many (perhaps most) EEOC charges, it is puzzling that courts demand that precise details (such as the names of harassers) and express legal theories (harassment, retaliation, discrimination, etc.) appear in these forms, on pain of forfeiture. In Green v. Elixir Industries, Inc., No. 04-12973 (11th Cir. Apr. 29, 2005), the panel majority reversed (2-1) summary judgment in a case where the district court was too demanding.

While the charge stated only a complaint of racially-motivated termination, the employee (who had filed his charge pro se) submitted an affidavit to the district court stating that during the intake process, he furnished written details of a scarifying pattern of harassment (including several incidents with nooses) which he thought would be included in the charge. The EEOC had apparently destroyed the file. The district court rejected the affidavit as “self-serving.” But the district court brought the issue back to earth:

“Whatever Green’s level of education, there is no question that he should not be held to the level of understanding the distinctive legal nuances between claims that constitute hostile work environment discrimination and those instead which constitute wrongful termination based on race. . . . Green filed his charge of discrimination pro se. Green even stated, in a distinct factual allegation, that he was ‘discriminated against because of [his] race.’ This allegation contains no reference to his termination; it is simply an unqualified statement, standing alone, of race discrimination. ‘It would falsify [Title VII’s]hopes to require verbal precision and finesse from those to be protected . . . .'”

The panel majority found the harassment allegations “inextricably intertwined” with the discrimination claim, and returned the case for a trial.

fact about constructive discharge:

“Of primary importance is the fact that Shore’s words and actions made clear to Saroli that she ought to consider resigning because if she chose to remain at the company she would ‘probably’ be demoted. It is reasonable to infer that such a demotion would likely have resulted in a reduction in job responsibilities for Saroli and perhaps a reduction in salary.”

The same manager, among other things, (1) “refused numerous attempts by Saroli to ascertain the maternity leave which would be offered to her”; (2) made numerous disparaging remarks about plaintiff taking maternity leave; (3) placed his own son personally in charge of the employee; (4) “failed to inform Saroli until the day she returned to work that she would need a doctor’s note in order to be cleared to resume work.” Which demonstrates that egregious evidence of discriminatory intent can go a long way to establishing an adverse employment action.



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

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