Daily Developments in EEO Law
by Paul Mollica (c) 2005
Wednesday, June 15, 2005
To close out the blog for the next couple of weeks, I leave you with a rare entry of summary judgment for a plaintiff, in Karraker v. Rent-a-Center, No. 04-2881 (7th Cir. June 14, 2005) . Rent-a-Center required candidates for promotion to take the Minnesota Multiphasic Personality Inventory (MMPI), used by health professionals to screen for psychiatric disorders. While the district court granted summary judgment to defendant on plaintiff’s claim under the ADA that the test was a prohibited “medical examination” (42 U.S.C. § 12112(d)(1)), the Seventh Circuit reversed and ordered summary judgment for plaintiffs. The district court had found that the test results were not evaluated by a medical professional, removing them from the prohibited classification, but the panel responded: “The problem with the district court’s analysis is that the practical effect of the use of the MMPI is similar no matter how the test is used or scored-that is, whether or not RAC used the test to weed out applicants with certain disorders, its use of the MMPI likely had the effect of excluding employees with disorders from promotions.” And because the test was designed in part to reveal mental illness (citing “ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations” (1995)), its use violated the ADA.
Tuesday, June 14, 2005
The common formula of the prima facie case includes proof that the employee is in a “protected class,” a more accurate statement is that the decision maker must be aware of that status. Often this subtle distinction is overlooked because the element is uncontested — especially in conspicuous instances, like race and sex. But other protected classifications may not be readily obvious: disability, religion, benefit eligibility (for ERISA), protected activity (for retaliation).
Now add age to the list. The Second Circuit, in Woodman v. WWOR-TV, No. 03-9348 (2d Cir. Jun. 13, 2005) holds that the plaintiff failed her burden (and lost summary judgment) because the record constrain no evidence that the decision maker knew (or consciously avoided learning) that the plaintiff — who worked in the sales department, and was age 61 when fired — was substantially older than the person who replaced her after a merger.
“We . . . join our sister circuits in concluding that a defendant’s discriminatory intent cannot be inferred, even at the prima facie stage, from circumstances unknown to the defendant. Thus, in an ADEA case, where a plaintiff relies on a substantial age discrepancy between herself and her replacement, she must adduce some evidence indicating defendants’ knowledge as to that discrepancy to support the inference of discriminatory intent required by the fourth prima facie factor. In cases where such knowledge is undisputed, which we expect to be most ADEA cases, a court need not specifically address this point; rather it may be assumed in considering whether the circumstances presented indicate intentional discrimination. But, where a defendant asserts that the record fails to indicate the requisite awareness, a plaintiff must adduce some evidence, whether direct or indirect, indicating a defendant’s knowledge as to the relative ages of the persons compared.”
Resort to inferences from the record (e.g., alleged widespread knowledge of plaintiff’s age in the industry, the successor’s review of records from before the merger) did not help establish the requisite knowledge, either.
I imagine that plaintiff’s counsel was shocked that this fact didn’t make it into the record. We should all profit from this mistake, and never forget in building our cases that it is only the facts operating on the decision maker’s mind that count.
Monday, June 13, 2005
When a federal agency undercompensates plaintiff’s counsel for fees incurred in settling an administrative complaint, where does she go to challenge the fee? According to Hansson v. Norton, No. 04-5157 (D.C. Cir. June 10, 2005), the Court of Federal Claims, which has jurisdiction over contract claims against the federal government in excess fo $10,000 under the Tucker Act, 29 U.S.C. § 1491. The plaintiff here sought relief in federal district court, believing the claim to be governed by substantive law (Title VII). But the district court and D.C. Circuit saw the claim as arising instead from the settlement contract. Plaintiff drew authority from various cases barring Title VII cases from the claims court, but the panel responded:
“Hansson points out that the Court of Federal Claims “has consistently held that it lacks jurisdiction to hear claims alleging the breach of a Title VII settlement agreement due to the comprehensive statutory scheme established under Title VII of the Civil Rights Act.” Griswold v. United States, 61 Fed. Cl. 458, 465 (2004); see Lee v. United States, 33 Fed. Cl. 374, 378-79 (1995); Fausto v. United States, 16 Cl. Ct. 750, 753 (1989). These cases can all be distinguished, however, on the ground that they involved claims for equitable relief that the Court of Claims lacked jurisdiction to grant. See Griswold, 61 Fed. Cl. at 460; Lee, 33 Fed. Cl. at 376-77; Fausto, 16 Fed. Cl. at 751. We are unaware of any case in which the Court of Federal Claims has denied jurisdiction over an action to enforce a Title VII settlement agreement in which only money relief is sought.”
The panel also noted that the Federal Circuit had held likewise on this jurisdictional issue in Massie v. United States, 166 F.3d 1184, 1188 (Fed. Cir. 1999).
Thursday, June 9, 2005
Just days after the D.C. Circuit’s decision in Shea (scroll down to June 6, 2005), the Second Circuit reaches the same result in Forsyth v. Federation Employment and Guidance Service, No. 03-7348 (2d Cir. June 6, 2005) (available at the Second Circuit website). A number of circuits have confronted the tension between Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), and Bazemore v. Friday, 478 U.S. 385 (1986), concerning when the limitations period begins to run on a claim that salary was set on a discriminatory scale.
Both in Shea and the present case, coincidentally, the plaintiffs proceeded pro se. The Second Circuit resolved the issue just as the D.C. Circuit did. “It is evident that a discriminatory pay schedule is a discrete act, even though it involves repeated conduct. Any paycheck given within the statute of limitations period therefore would be actionable, even if based on a discriminatory pay scale set up outside of the statutory period. But, a claimant could only recover damages related to those paychecks actually delivered during the statute of limitations period. Plaintiff’s salary discrimination claim, then, was not time-barred as the district court wrongly believed, but his recovery would be limited to those paychecks he received within the relevant statute of limitations period, i.e., paychecks received within 300 days prior to March 24, 1994, or paychecks received after that date.” [Citations omitted.]
Unfortunately for Mr. Forsyth, the win on the Bazemore issue was not a harbinger of reversal of summary judgment. The plaintiff failed to establish anything in the record beyond the fact that he got paid less than other employees in the same agency. Without other circumstantial or direct evidence of discrimination, his case ended at the prima facie stage. The court also found that in the unusual circumstances of this case, it was not reversible error for the district court to fail to warn a pro se plaintiff about the consequences of not filing a response (i.e., plaintiff had been represented by counsel for 13 months after the filing of summary judgment, but ultimately had to file the response pro se, and plaintiff’s affidavit demonstrated an understanding of Rule 56).
Wednesday, June 8, 2005
Scott v. Johannes, No. 04-5267 (D.C. Cir. June 3, 2005) adds to the growing split over whether a federal employee who reaches the end of the administrative process before the EEOC Office of Federal Operations, wins liability, but receives less than an full remedy, may file a new action in federal district court challenging only the remedy. The D.C. Circuit says “no,” agreeing with the Tenth Circuit (Timmons v. White, 314 F.3d 1229 (10th Cir. 2003)), but splitting with the Fourth and Ninth (Morris v. Rice, 985 F.2d 143, 145-46 (4th Cir. 1993); Girard v. Rubin, 62 F.3d 1244 (9th Cir. 1995)). The D.C. Circuit found, like the Tenth Circuit before, that the plain language of 42 U.S.C. § 2000e-16(c) mandated this election. Thus, for federal employees in that circuit, the choice is either accepting the administrative award or abandoning the favorable liability finding for a hearing de novo before the court.
Tuesday, June 7, 2005
Extraterritoriality is on the minds of the Supreme Court and the D.C. Circuit. In Spector v. Norwegian Cruise Line, Ltd., 03-1388 (U.S. S. Ct. June 6, 2005), a 5-4 majority held that there may be instances where Title III of the Americans With Disabilities Act (governing public Accomodation) may apply to foreign-flag cruise ships.
Spector seemed an odd choice for certiorari, given the narrowness of the issue. But it gave the Court an opportunity once again to limn the “clear statement” rule, which presumes no extraterritorial effect of U.S. statutes unless Congress expressly provides otherwise. The plurality of Justice Kennedy — who composed the narrowest grounds of decision that obtained five votes — writing for the Court (Justices Stevens, Souter, Ginsberg and Breyer), rejected the Fifth Circuit’s blanket rejection of the ADA in this setting.
“This Court’s cases, . . . do hold, in some circumstances, that a general statute will not apply to certain aspects of the internal operations of foreign vessels temporarily in United States waters, absent a clear statement. The broad clear statement rule adopted by the Court of Appeals, however, would apply to every facet of the business and operations of foreign-flag ships. That formulation is inconsistent with the Court’s case law and with sound principles of statutory interpretation.”
Two different sections of Justice Kennedy’s opinion (one joined only by Justices Stevens and Souter, another by these two Justices and Justice Thomas) nevertheless avoided intrusion upon national sovereignty by conferring broad immunity upon the “internal affairs” of ship operations (i.e. “matters that involve only the internal order and discipline of the vessel”).
According to the plurality, the ADA may reach such allegations as requiring disabled passengers to pay special surcharges; maintaining evacuation programs and equipment in locations not accessible to disabled individuals; requiring disabled individuals (but not other passengers) to waive any potential medical liability and to travel with a companion; and reserving the right to remove from the ship any disabled individual whose presence endangers the “comfort” of other passengers. On the other hand, remedying structural barriers might interfere with basic ship design and construction, and would fall within the ship’s “internal affairs,” arguably not covered by the ADA.
In Shekoyan v. Sibley Int’l, No. 04-7040 (D.C. Cir. June 3, 2005), the court held that Title VII — in spite of its express extraterritoriality provisions, added by Congress to legislatively overrule EEOC v. Aramco, 499 U.S. 244 (1991) — did not cover a resident alien employed by a private U.S. corporation, hired and trained in the U.S., but deployed to the Republic of Georgia.
Monday, June 6, 2005
A pro se litigant scores an (interlocutory) success against the U.S. State Department, having his Title VII pay and benefits claim reinstated on appeal, in Shea v. Rice, No. 03-5325 (D.C. Cir. June 3, 2005). His complaint was dismissed for failure to state a claim based on the Secretary’s timing defense under Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). The district court held that a challenge to the State Department’s diversity initiative, which he claimed paid higher salary grades to minorities (plaintiff identifies himself as white and of Irish descent). His claim began running in 1992; he contended that even without promotions his present salary would have been $7,500 higher. Dismissing the claim, the district court found that Shea did not allege that the allegedly discriminatory system continued into the charging period (on or after January 12, 2001), that the prior checks were time-barred, and that any diminution in his compensation was the mere artifact of a time-barred practice. On appeal, the panel agreed that if Shea were complaining only of assignment to a discriminatorily low pay scale, that claim would be time-barred.
But the panel found that the claim more properly fell within the ambit of Bazemore v. Friday, 478 U.S. 385 (1986), which holds that challenges to a racially-discriminatory pay system may continue with each discriminatory pay period. “Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to” the limitations period. Id. at 395-96. The panel found that Bazemore survived Morgan, with each paycheck alleged by Shea creating a new discrete event: “Shea did not attempt to breathe new life into discriminatory acts that occurred outside the limitations period by alleging they were part of a broader pattern of discrimination, or by relying on their lingering effects in the present. Rather, Shealleged that the State Department discriminated against him within the limitations period (and thereafter) by issuing him discriminatory payroll checks . . . .” (Citations omitted.)
Friday, June 3, 2005
Plaintiffs in EEO cases don’t often try for preliminary injunctive relief, and almost never succeed when they do. Moore v. Consolidate Edison Co., No 03-9281 (2d Cir. June 2, 2005) (at the Second Circuit website) was not a success, either, but the appeal cleared up two issues that usually doom these efforts. Plaintiff claimed that her employer was attempting to intimidate her into not testifying in a civil rights proceeding by giving her a poor performance review:
“Shortly after receiving this negative evaluation, plaintiff sought a preliminary injunction enjoining defendants from ‘seeking to intimidate’ her as a witness in federal civil rights litigation ‘by unlawfully disciplining her and terminating her from employment.’ She contended that defendants were threatening her and retaliating against her because she had agreed to serve as a witness in other cases against Con Ed. She alleged that the defendants sought to cause her ‘permanent harm’ at a time when she suffered post-traumatic depression-a condition for which Con Ed had allegedly been found responsible in a workers’ compensation proceeding. As part of her effort to secure a preliminary injunction, plaintiff also requested a hearing so that the district court would be ‘presented with a full and fair account of the defendants’ efforts to intimidate witnesses.”
During the intervening proceedings, plaintiff was terminated from Con Ed. The district court denied her the interlocutory relief and did not convene an evidentiary hearing.
The panel made two threshold legal rulings that appeared to give the plaintiff a leg up. First, it held (contrary to prior suggestions in the case law) that the termination of the plaintiff does not moot injunctive relief, if the employer was able to reinstate her. Second, it found that the district court erred in holding that the existence of legal relief necessarily precludes a finding of irreparable injury. Nevertheless, the court found no evidence of intimidation presented on the record, and affirmed the denial of an injunction
Wednesday, June 1, 2005
One seldom sees cases about 42 U.S.C. § 2000e-10(a) anymore, the section that requires an employer under Title VII to “post . . . in conspicuous places upon its premises . . . a notice to be prepared or approved by the [EEOC] setting forth excerpts from or, summaries of, the pertinent provisions of this subchapter and information pertinent to the filing of a complaint.” In Mercado v. The Ritz-Carlton San Juan Hotel, No. 04-1630 (1st Cir. May 31, 2005), two plaintiffs admittedly filed their charges (alleging discriminatory constructive discharge) more than 300 days after their resignations. The district court granted a motion to dismiss for failure to state a claim on each claim. Plaintiffs presented an equitable tolling argument that the employer failed to comply with section 2000e-10(a), but the district court held that the plaintiffs failed to show that the hotel’s non-compliance with the posting requirement amounted to a deliberate attempt to deceive employees about their rights.
On appeal, the dismissal was reversed. The panel found that at the pleadings stage, the allegation of non-posting was sufficient to survive a Rule 12(b)(6) motion. In particular, it found that the failure to post need not be shown to be deliberate (this was the district court’s error). “Here, where appellants have asserted that no informational notices were posted and that they had no knowledge of their legal rights until informed by their attorney,9 they have met the threshold requirements for avoiding dismissal of their Title VII suit.”
On the other hand, for dilatory employees who might try to rely on such arguments in the future, the First Circuit loads on a heavy burden.
“The factual inquiry in this case thus must begin with an examination of whether – despite their assertion of ignorance – appellants had either actual or constructive knowledge of their Title VII rights within the meaning of our case law. Actual knowledge does not mean specific awareness of the 300-day statutory filing period; rather, actual knowledge occurs when an employee becomes generally aware that he possesses a legal right to be free from the type of discrimination he has alleged. . . . Constructive knowledge, meanwhile, would be presumed if the employer had complied with its statutory obligation to post the EEOC notices in conspicuous locations, and it also is presumed when an employee has retrained an attorney – in both instances, regardless of whether the plaintiff in fact is aware of his rights.”
In other words, only a hypothetical employee utterly unaware of anti-discrimination laws could wriggle through this hole (the obverse of the “willfulness” standard imposed by Title VII and the ADEA for punitive or liquidated damages; managers nowadays invariably know about the laws against discrimination). But it is not inconceivable that such employees populate the workplace; I have fielded many phone calls from folks who only figured out months or years after their 300 days ran that they might have a claim. The panel also signaled that employers could impart knowledge of anti-discrimination laws upon its workforce through an employee handbook (such as the Ritz-Carlton San Juan Hotel’s quaintly titled “Ladies and Gentlemen’s Handbook”). But the handbook must be couched in the language of legal rights, not corporate policy. I also suppose that the presence of an arbitration policy might complicate matters, if it tends to discourage employees from pursuing their legal rights to file charges.
The plaintiff must also show diligence in pursuing their legal rights (of which they are presumably ignorant):
“Appellants did not consult with an attorney until nearly ten months after leaving their jobs. Appellants suggest that they were unaware for those months that they had a right to seek redress for discrimination; whether their eventual visit to an attorney was prompted by new information or reflected long-standing general awareness of a potential claim is also relevant. Appellants met with the attorney one day before the 300 days had run for Mercado and ten days before it had run for Jomp, but their charges were not filed with the EEOC until 33 days later. Did this reflect diligence under the circumstances?”
The panel seemed to leave little doubt how these questions ought to be answered. I can only wonder what the attorneys in this case must be wondering will happen next, now that the panel has all but said that they were not professionally diligent in responding to their client’s short deadlines.