August 2005

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

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

Wednesday, August 31, 2005

In the classic Alfred Hitchcock film, Vertigo, starring James Stewart as Detective John ‘Scottie’ Ferguson, Stewart’s character learns that his terror of heights substantially limits him in the major life function of working, at least in the class of law enforcement jobs. In D’Angelo v. ConAgra Foods, Inc., No. 04-10629 (11th Cir. Aug. 30, 2005), the circumstances for the ADA plaintiff are perhaps less dramatic, but (a 2-1 majority of the panel holds) nevertheless warrant a trial. The plaintiff found that monitoring a conveyor belt in a fish packing plant caused her to become sick. The employer claimed a lack of positions available away from such equipment and terminated her. She sued under the ADA (and Florida state law) for disability discrimination, on grounds of both actual disability and “regarded as” disability.

The panel unanimously affirmed the finding that vertigo did not substantially limit the plaintiff in the major life activity of working. But under the “regarded as” liability provisions, the panel majority found a triable issue of fact. First, the panel adopted the district court’s holding that there was a genuine issue of material fact about whether the plaintiff’s manager regarded D’Angelo as disabled (the manager may have believed, based on the employee’s doctor letter, that she could not work around any moving equipment — which if true blocked her out of all factory work). Second, the panel found a triable issue of fact about whether working on a conveyor belt was an essential function of the job, such that the employee would be required to perform that task to be a “qualified individual.” (Supervisor deposition testimony, quoted at length, consistently failed to identify work at the conveyor belt as “essential,” a grievous defense preparation blunder.) Finally, the panel majority adhered to precedent in the Third Circuit (though there is a split on this point) that the ADA may require reasonable accommodations even for employees who are only regarded as disabled.

Incidentally, the reversal was made all the sweeter by the plaintiff representing herself pro se (and I regret that I could not turn up the name of the defense firm).

Tuesday, August 30, 2005

Sandquist v. Des Moines Independent Community School Dist., No. 04-3401 (8th Cir. Aug. 29, 2005) is yet another case where a public entity gets stung by a poorly-drafted early retirement program (ERIP) that bars employees of a certain age group (here, age 65 and older) from the benefits offered to relatively younger employees.

The district court found that, under the plan, “two teachers employed by defendant with the same educational background, the same number of accumulated sick days, and the exact same number of years of employment with defendant could receive entirely different benefits upon retirement based solely upon their age (if, for example, one were 64 years old and the other 66 years old at the time of their respective retirements).” The Eighth Circuit affirmed summary judgment for the plaintiffs, rejecting the defendant’s attempt to slot its plan within the safe harbor provision of 29 U.S.C. § 623(f)(2)(B)(ii). “The basis for our conclusion that the amended ERIP is inconsistent with a purpose of the ADEA is the fact that the amount of available early retirement benefits drops to zero upon an employee’s attainment of the age of 65. That adverse change in benefits is based solely upon age.”

Friday, August 26, 2005

Most plaintiffs’ attorneys have faced this situation, in one capacity or another: an former employee who settles a claim, and signs a non-disparagement agreement as a term of settlement, gets approached by another litigant seeking damaging information against the same company. Navigating such territory is ticklish, and the latest decision from the Fifth Circuit in Cooper Tire & Rubber Co. v. Farese, No. 04-60774 (5th Cir. Aug. 23, 2005) — decided under Mississippi law — raises the stakes for the lawyers.

Based on the summary judgment record (in the light most favorable to the former employer), an employee named Barnett was fired for allegedly embezzling from Cooper Tire. In exchange for her not being turned over to law enforcement, the company asked her to sign a non-disparagement agreement. She sought legal advice from a Mississippi attorney who, it turned out, knew another lawyer in Arkansas who had a products liability case against the same defendant. It turned out also that the employee had allegedly destroyed documents discoverable in the products case, a fact not known to the Arkansas lawyer. So before the employee signed the final agreement, the Mississippi lawyer drafted an affidavit about the document destruction, read it over the phone to the Arkansas lawyer and e-mailed it. He also made sure to negotiate language in the non-disparagement agreement to apply only prospectively. The Mississippi lawyer did not, at list, share what he knew about the Arkansas case with the former employee.

The fact of the affidavit’s existence eventually erupted — allegedly in a collaboration between the lawyers in Mississippi and Arkansas. “Approximately two weeks later (10 May), her affidavit was leaked to a national business television news organization, which gave the story wide coverage. The story broke that same day, with Cooper Tire’s stock price dropping approximately 25% ($500 million) in the first hour of trading and closing the day down 11% ($220 million).” The Arkansas lawyers’ motion for discovery sanctions in the trial court nevertheless fizzled, after Barnett’s testimony was stricken by the judge. A $50,000 check changed hands from the Arkansas lawyer to the attorney in Mississippi, who in turn sent $25,000 to Barnett’s father as a “gift.” According to the opinion, “[when deposed in the instant action, Barnett invoked her Fifth Amendment right against self-incrimination when asked how she treated her $25,000 for income tax purposes.”

Cooper Tires eventually sued attorneys on both sides of the transaction for tortious interference with the non-disparagement agreement, and other torts. The district court granted summary judgment to the attorneys, on the ground that the contract was void for illegality and unconscionable. But the Fifth Circuit reversed. It found that a non-disparagement agreement may be enforced under Mississippi law. “Arguably, it would be against public policy for an employer to sue a former employee for violating a non-disparagement clause by disclosing the employer’s illegal activities.” But here, “the separation agreement could not prevent Barnett from testifying in court or at a deposition pursuant to a valid subpoena.” The court of appeals also rejected an unconscionability defense to enforcement of the agreement. Finally, it found that there were disputed issues of material fact about the interference tort, and remanded the case for trial.

(Uncommented upon by opinion, but worth considering: the original embezzlement and the dodgy tax status of the $25,000 has now been publically exposed. Assuming the limitations period is long enough, the local district attorney in Mississippi and the IRS may presumably pursue the employee for these acts, notwithstanding the agreement. Another collateral consequence of the lawyers’ unwise doings.)

Thursday, August 25, 2005

The Second Circuit widens the door a bit in Title VII anti-retaliation cases, holding in Jute v. Hamilton Sunstrand Corp., No. 04-3927 (2d Cir. Aug. 23, 2005) (available on the Second Circuit webpage) that even appearing on the witness list in a co-worker’s Title VII litigation constitutes participation in a “protected activity.”

A female co-worker (Ms. Brunton) identified Jute as a person with knowledge during discovery in her case, and Jute agreed to testify on her behalf. But before Jute could be deposed, the case settled. Jute was apparently unaware of this latter development. But thereafter, she was immediately (i.e. one day after being named as a potential witness) bounced from a design team (where the same supervisor had recently credited Ms. Jute as a “tremendous asset”), which was entering a critical stage and placed her in light for career advancement. Over the following two years, a host of advantages large (promotions) and small (teaching an in-house aerobics class) were yanked away. Finally, she was fired in a reduction in force, with a bad reference to boot.

The court of appeals, looking at the operative language of the section (“participate[] in any manner”) found that it was broad enough to cover a voluntary witness who never testifies. The employer argued that an employee under this section must take some affirmative action, and not just passively appear in the proceedings. But besides the plain and expansive language of the anti-retaliation section itself favoring the plaintiff, “[a]ccepting Hamilton’s argument would mean, for example, that an employer could freely retaliate against a Title VII whistleblower, as long as it did so before the employee actually testified. Placing a voluntary witness into this kind of legal limbo would impede remedial mechanisms by denying interested parties ‘access to the unchilled testimony of witnesses.’ Glover v. South Carolina Law Enforcement Div., 170 F.3d 411, 414 (4th Cir. 1999).”

Also helpfully, the court held that (1) the omission of one of the alleged acts of retaliation against Jute in her EEOC charge did not preclude her persuing a claim on it; (2) time-barred acts of retaliation were nevertheless admissible background evidence of the timely-charged events; and (3) that circumstantial evidence is sufficient to establish that a bad job reference cost the employee a job at another business.

Tuesday, August 23, 2005

Here’s a potentially useful case on the issue of “adverse employment action”: Washington v. Illinois Dep’t of Revenue, No. 03-3818 (7th Cir. Aug. 22, 2005). There is static in the case law about (1) how severe an act or work conditions must be to constitute an adverse employment action under Title VII, and (2) whether the standards vary between the anti-discrimination and anti-retaliation sections. This case helps regularize matters for litigants in the Seventh Circuit.

Here, the plaintiff alleged that in retaliation for her complaint of discrimination, she was involuntarily assigned to a new title, with a new supervisor and (critically for this case) elimination of her flex-time schedule. Ms. Washington relied on flex-time to allow her to attend to her child with Down syndrome. The district court granted summary judgment, holding that the above acts were not sufficiently adverse to be actionable under Title VII.

On appeal, the panel reversed summary judgment. The opinion (which is brief, and ought to be read in full), reviewed the circuit case law and distilled the following rule: “‘discrimination’ entails a requirement that the employer’s challenged action would have been material to a reasonable employee, which means that the same requirement applies to §2000e-3(a), the anti retaliation clause, as well as the other provisions in Title VII that use the word ‘discrimination.’ An employer’s action is not material under §2000e-3(a) if it would not have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

It then held that what mattered in Ms. Washington’s case is whether the agency, knowing the importance of flex-time to the parent of a disabled child, deliberately pulled the privilege to punish her for filing a charge. To drill in this point, the opinion made a pop-culture reference to Catbert, the evil HR director of the comic strip Dilbert:

“What the Department effectively did, then, was assign her a new supervisor and change her hours. Again this would not be materially adverse for a normal employee-but Washington was not a normal employee, and Catbert knew it. She has a vulnerability: her son’s medical condition. Working 9-to-5 was a materially adverse change for her, even though it would not have been for 99% of the staff. In practical effect the change cut her wages by 25%, because it induced her to use leave for two hours per day (her salary remained the same, but her vacation and sick leave drained away, which is an effective reduction in salary). When her leave ran out, her pay fell to zero for five months, until she found a supervisor willing to let her go at 3.”

Because the record was indeterminate about what the decision maker here had in mind, the case was remanded for trial.

Monday, August 22, 2005

Plaintiffs’ attorneys know the importance of laying a foundation in the district court for challenging orders denying critical discovery. Although reversals are seldom obtained on discovery issues alone, erroneous denial of key information can throw a light upon other errors — especially summary judgment — when an employee has been denied a fair ability to assemble a case. Yet preserving the record requires an understanding of Fed. R. Civ. P. 56(f), which sets forth the procedures that must be followed to prevent entry of summary judgment on the grounds of insufficient discovery.

A cautionary tale lies in Miller v. Automobile Club of New Mexico, No. 03-2276 (10th Cir. Aug. 20, 2005). A Title VII plaintiff lost her motion to compel production of comparable male personnel files (and a motion for sanctions) before a federal magistrate judge, on the ground of untimeliness (the local rules required her to file her motion within 20 days of receiving the written objection to her discovery requests). Her counsel pursued an appeal of the order under Fed. R. Civ. P. 72(a). Meanwhile, prior to the magistrate judge’s decision, the employer filed for summary judgment.

The district court judge, during a pre-trial order conference, inquired about pending motions, and plaintiff’s counsel reminded the judge about the appeal of the magistrate’s order denying discovery and sanctions. Some weeks later, the district court judge heard oral argument on the sanctions, which it denied in relevant part (although it did order the defendant to produce a witness for an additional deposition). During that oral argument, though, the court said it expected to grant summary judgment on the Title VII claimsin the case (while leaving two contract claims open for trial). The judge never expressly ruled on the appeal of the magistrate judge’s order.

On appeal, both the summary judgment and discovery order were affirmed. The panel determined that the district court implicitly denied the appeal of the magistrate judge’s ruling by granting summary judgment. But what more might plaintiff’s counsel have done to avert this outcome? Wrote the panel: “We also note that if Ms. Miller’s true goal in challenging the denial of her motion to compel was to reopen discovery so as to garner additional evidence before the district court’s summary judgment ruling, she should have filed an affidavit pursuant to FED. R. CIV. P. 56(f) seeking a continuance and explaining why she could not currently present facts to justify her opposition to the company’s motion. Ms. Miller concedes she did not file such an affidavit. Aplt. Reply Br. at 26. Her failure to do so further undermines her challenge to the magistrate judge’s discovery order, as well as her challenge to the district court’s grant of summary judgment to AAA New Mexico.” Without the Rule 56(f) affidavit to put a foot in the door, there was no preventing the district court from closing it shut.

Tuesday, August 16, 2005

In Isbell v. Allstate Co., No. 04-2310 (7th Cir. Aug. 15, 2005), a two-plaintiff ADEA/ERISA case, the court affirmed summary judgment against the plaintiffs, but also directed entry of summary judgment on behalf of one employee on Allstate’s counter-claim for breach of contract. Seems that Allstate’s counsel may have blundered in drafting the company’s release by not including a covenant not to sue along with the release. The case is parallel to another decision by the Eighth Circuit three months back, Thomforde v. IBM, see the May 4, 2005 entry .

The two employees were both subject to Allstate’s policy of taking its agents off of its payroll and reinstating them as (putative) independent contractors. Plaintiff Isbell refused to sign a release as a condition to return to work under the policy; plaintiff Schneider signed the release but brought suit anyway. Isbell and Schneider lost on the merits at the summary judgment stage.

Allstate filed a counterclaim against Schneider, and (in the district court) obtained summary judgment against him for breach of contract for bringing a civil action. This latter decision was reversed on appeal, because the release lacked a covenant not to sue. Wrote the panel, “The Release does not amount to a covenant not to sue, but rather is a release from liability for any potential past claims. While the Release gives Allstate a defense that prevents Schneider from winning, the Release does not contain plain language that amounts to an agreement not to sue.” An obvious drafting glitch that some lawyer will pay (or has paid) hell for.

Monday, August 15, 2005

In Hugh v. Butler County Family YMCA, No. 04-1459 (3d Cir. Aug. 12, 2005) a quorum of the panel — Judge Chertoff, the third panelist who heard oral argument, having recently resigned to join the Bush Adminstration — responds to a small but recurrent issue under McDonnell Douglas: what evidence is admissible at the prima facie stage to establish whether an employee was “qualified”? A female employee at the Y who was promoted to volunteer coordinator for Big Brothers, Big Sisters (Ms. Hugh) was later fired, assertedly for poor performance, and replaced by a male at a higher salary.

On summary judgment, the employer directed the district court judge to the job description for the employee’s former position, stating that the applicant must have a degree in social work and experience as a caseworker. The summary judgment record reflected that the employer knew that Ms. Hugh lacked these credentials when it hired her. Despite that, it argued that because Ms. Hugh fell short of these objective qualifications, she was not “qualified” for purposes of the prima facie test. Not so, held the Third Circuit:

“The YMCA, having promoted Hugh with full knowledge of her background, cannot now say that she was unqualified for the position, her promotion was an acknowledgment that she was qualified at the time. This conclusion would, of course, be different if Hugh had not disclosed information regarding her qualifications or if she had misrepresented her qualifications. There are no such facts here, and the YMCA admits that it had full knowledge of her background and qualifications.”

The panel went on to observe, at the third stage of McDonnell Douglas, that the employee’s lack of these credentials could not serve as a valid reason for her termination when the employer had already made the decision to promote her in full knowledge of her qualifications. So summary judgment was reversed and the case returned for trial.

See also Vessels v. Atlanta Independent School, 408 F.3d 763, 95 FEP 1245 (11th Cir. 2005) (subjective evaluations not relevant to whether employee was “qualified” for purposes of McDonnell Douglas)

Thursday, August 11, 2005

A fairly straightforward ADA case is remanded for the second time, after the district court judge (once again) applies too strict a standard for “substantially limited” in major life activities. EEOC and Keane v. Sears, Roebuck & Co., No. 04-2222 (7th Cir. Aug. 10, 2005). A sales associate with neuropathy (a degenerative nerve condition) and non-insulin-dependent diabetes wanted a shorter walk to and from her station in the lingerie department, such as a closer parking place or a shortcut through a stockroom. The company refused her requests.

The EEOC brought an action against the store for failure to provide a reasonable accommodation. The Seventh Circuit reversed summary judgment for the first time in 2000 (233 F.3d 4332 (7th Cir. 2000)), remanding for further development of whether plaintiff was a “qualified individual with a disability.” After the remand further briefing, the district court judge granted summary judgment again, finding that the employee was not disabled, and that in any case the employer did not owe her any kind of accommodation.

On the definition of “disability,” the Seventh Circuit considered the record and its prior decision in the light of the intervening Toyota Motors case. It held that, with respect to the major life activity of walking, a “reasonable jury could conclude, based on [the record] evidence and its own life experience, that Keane’s severe difficulty in walking the equivalent of one city block was a substantial limitation compared to the walking most people do daily.” The panel also held that, by remaining mute in response to repeated requests for accommodation, the employer caused a genuine issue of material fact about its willingness to engage in the ADA interactive process. “It is not an employee’s responsibility, however, to repeatedly prod a reticent employer. Keane was given no indication that . . . anyone else at Sears was willing to work with her to determine a way to reasonably accommodate her disability. In this context, Sears cannot avoid liability by contending that Keane should have tried harder to force it out of its reluctant posture.”

So it looks like back to the same judge for a jury trial.

Wednesday, August 10, 2005

As noted in prior posts (last Friday’s, most recently), the courts of the Eleventh Circuit have lately been playing with a “loser-pays” rule for employment discrimination plaintiffs. The most recent case (Young v. New Process Steel, No. 04-11554 (11th Cir. Aug. 9, 2005) ) deals with what happens, under Fed. R. App. P. 7, when an employee takes an appeal from a defense verdict in a Title VII/§ 1981 harassment case.

The district court that case tried the case below and then directed the winning employer, sua sponte, to demand a bond for the plaintiffs’ appeal. Rule 7 provides “In a civil case, the district court may require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal.” The employer submitted an affidavit estimating $1000 in taxable costs of appeal, and $60,000 in attorneys’ fees. The district court ordered the sum total be posted.

Plaintiffs dodged a bullet when the panel (Carnes, J., writing for the court) held that the Christianburg Garment standard applies and that a bond need only be posted in such cases that the district court finds frivolous, unreasonable or groundless:

“Applying the reasoning of the Christiansburg decision to the Rule 7 context, a general rule requiring a losing plaintiff in a civil rights case to post a bond that includes the defendant’s attorney’s fees on appeal would discourage and might prevent some appeals for which there is a good basis. As a result, individuals would be prevented from acting as private attorneys general to pursue through the appellate process the enforcement of the civil rights acts. That would be bad policy at the appellate stage of the process for the same reasons it is at the trial stage.”

By preserving the Christiansburg exception for frivolousness under Rule 7, though, it also left district courts in charge of deciding when a bond may be required on a case-by-case basis, “evaluating a plaintiff’s possibility of success on appeal based on what the court has seen of his case at the trial level.” So defendants seeking to ward off potentially successful appeals have, at least in the Eleventh Circuit, another weapon at their disposal.

Tuesday, August 9, 2005

Yet another in an seemingly limitless stream of cases examining the limits of who is “similarly situated” for purposes of the McDonnell Douglas prima facie test. Rodgers v. U.S. Bank, No. 04-3000 (8th Cir. Aug. 5, 2005). The plaintiff in this Title VII race discrimination lawsuit lost her job after an investigation found she repeatedly violated internal rules preventing tellers from entering transactions on their own accounts. A white co-worker, accused of the same misconduct (though of a lesser frequency), received no punishment at all.

While affirming summary judgment in this case for the employer, the panel majority (Judges Gruender and Melloy) disapproved of the stringent standard applied by the district court at the prima facie stage. The panel majority perceived an intra-circuit conflict on the appropriate standard for when employees may be deemed “similarly situated,” and held:

“At the prima facie stage of the McDonnell Douglas burden-shifting framework, we choose to follow the low-threshold standard for determining whether employees are similarly situated. We believe this more accurately reflects Supreme Court precedent. The Supreme Court has advised: ‘The burden of establishing a prima facie case of disparate treatment is not onerous.’ Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). We also think that using the low-threshold standard at the prima facie stage is more in line with our Court’s prior admonition that ‘[t]he district court must not conflate the prima facie case with the ultimate issue of discrimination.’ Williams, 14 F.3d at 1308. Using a more rigorous standard at the prima facie stage would ‘conflate the prima facie case with the ultimate issue of discrimination,’ thereby effectively eliminating the burden-shifting framework the Supreme Court has directed us to use.”

Moving on to the employer’s burden of production, therefore, “U.S. Bank’s proffered reason is that Rodgers violated the bank’s policy against employees processing transactions on their own accounts.” The district court found, for reasons fully laid out in the opinion (and unnecessary to recount here), the terminated employee failed to rebut this explanation.

In an eight-page opinion concurring in the judgment, Judge Colloton fully endorsed the district court’s analysis. He concluded that, even at the prima facie stage of the McDonnell Douglas test, closeness of fit is required: “Under that framework, it makes good sense to consider whether an employee who seeks to make a prima facie case of disparate treatment by comparisons with another employee of a different race has demonstrated that the comparators are similarly situated in all relevant respects. For if they are not – that is, if the employees offered for comparison are dissimilar in respects that are relevant to the disputed employment action – then it is likely that the relevant dissimilarities explain the disparate treatment. In that case, the evidence has not ‘-eliminate[d] the most common nondiscriminatory reasons’ for the employer’s action, and it does not justify the legal presumption that the employer’s acts ‘are more likely than not based on impermissible factors.’ Burdine, 450 U.S. at 254 (internal quotation omitted).”

Friday, August 5, 2005

It’s becoming increasingly perilous for employees to litigate in the Eleventh Circuit. Woe betide those who lose, because the district court may tax you — both client and counsel — with the employer’s attorneys’ fees. Six weeks ago it was Quintana v. Jenne, No. 03-15443 (11th Cir. June 28, 2005), affirming fees for a defendant in a case where the plaintiff simply failed to make out a prima facie case. Now in Cordoba v. Dillard’s, Inc., No. 04-14744 (11th Cir. Aug. 4, 2005), it is $19,579 from the employee (who had been terminated and previously earned less than $10.00 an hour) and $191,339 from her attorney.

This was an ADA case where the manager who made the termination decision was legitimately innocent about the employee’s latent disability (a heart condition), and plaintiff therefore could not establish a prima facie case. After summary judgment (and affirmance on appeal in an unpublished order), defendant was awarded fees based on the ADA fee shifting provision (42 U.S.C. § 12205), section 1927, and the court’s inherent power. On appeal, the plaintiff and her lawyer slipped the noose, but only barely: the panel found that the employee tried and failed to hook her claim on dicta from prior Eleventh Circuit cases suggesting a theory of “constructive” knowledge, imputed to the decision-maker, which — based as it was on circuit precedent — could not be considered frivolous.

Moreover, the panel faulted the employer for prolonging the litigation instead of filing an early summary judgment motion on the knowledge issue. Worse, the defense lawyer got exposed (in a published opinion) for telling tales during oral argument:

“At oral argument, we asked Dillard’s counsel why they didn’t do so. Counsel responded that they had proceeded with medical/disability-related discovery because “you only get to do one motion for summary judgment,” and Dillard’s wanted to be prepared to move for summary judgment on all available grounds. Of course, neither Federal Rule of Civil Procedure 56 nor the local rules for the Middle District of Florida limit a defendant to one summary-judgment motion; counsel, however, represented that the district judge would not have ruled on any motion for summary judgment until after the deadline for filing all motions for summary judgment had passed.”

The opinion went on to express “significant doubts” about this explanation, finding most likely that the “unnecessary cost and expense is attributable instead to Dillard’s failure to move for summary judgment on the knowledge issue as soon as was practical-whether because it misjudged the district judge’s likely response to such a motion or because Dillard’s itself did not perceive Cordoba’s claims to have been as frivolous as it now argues they were.”

A fair outcome, ultimately, but that’s a pretty close shave for everyone involved in the case.

Thursday, August 4, 2005

Orr v. City of Albuquerque, No. 03-2287 (10th Cir. Aug. 2, 2005) finds a potential Title VII violation by an employer that forces pregnant employees to exhaust sick leave for maternity leave, instead of using other kinds of leave with a softer impact on retirement eligibility. Male employees, by contrast, were allowed to resort to “compensatory time” for paternity leave, which did not impact upon retirement. The panel — reversing summary judgment — found that the maternity policy had an “adverse employment action” on new mothers for purposes of Title VII, and reversed summary judgment on this claim: “Defendants’ alleged impairment of the female Plaintiffs’ structured parental leave had at least two serious implications. First, their accumulated sick leave was severely diminished. Second, they were unable to use the substantial amounts of compensatory time their supervisor specifically authorized to be accumulated for this very purpose. Because of this, they could not get their accumulated levels below the maximum amount and were prevented from accruing additional compensatory time (or, in other words, working overtime).”

Wednesday, August 3, 2005

In Collado v. United Parcel Service Inc., No. 04-11297 (11th Cir. Aug. 2, 2005), a panel of the Eleventh Circuit kicks up a pretty big fuss over a seemingly minor issue: the standard of review of a Rule 50 judgment as a matter of law when the employer claims that the employee did not prove his prima facie case. The orthodoxy in post-trial appeals of employment discrimination cases — sounding in Burdines, Aikens and their progeny — is that the prima facie case fades into irrelevance once the case has been tried on the merits. If plaintiffs’ counsel have been lulled by this bit of dogma into taking for granted having to prove their cases fully at trial, then this case should wake them up.

An ADA plaintiff — an insulin-dependent diabetic truck driver — manages, in spite of Department of Transportation rules to the contrary, to obtain certification to work as a full-time driver. Four years later, a manager (Herman Radish) uncovers the situation and removes the plaintiff from full-time duty. A year later he returns full time, only to be removed once more by the same manager, Radish. He yo-yos though different positions over the next couple of years, and spends time on disability leave, until he is finally cleared for work and reinstated in 2001.

Discrimination and retaliation claims go to trial, where the jury awards plaintiff $316,000. But the district court bears away plaintiff’s verdict on post-trial motions: “The basis for the ruling on the discrimination claim was the court’s view that Collado had failed to carry his burden of proof on the issue of whether he is disabled, the failure being that he had not identified any ‘major life activity’ that his diabetes limited. In fact, the district court said, Collado’s own testimony was that his diabetes did not interfere with any major activity.”

If the employee is not in the protected ADA group to begin with (i.e. qualified person with a disability), he or she is doomed to lose the claim on the merits. But the plaintiff protested that the district court could not return to the “prima facie case” after trial, under what the circuit called the “don’t-look-back” rule. The Eleventh Circuit dashed that argument:

“Collado’s position reflects a fundamental misunderstanding of what we are calling the don’t-look-back rule. That rule prevents an inquiry into the prima facie case after all of the evidence is in; it does not prevent an inquiry into the existence of an element of the claim. The authority and duty of a court to decide whether all elements of a claim have been proven does not end with the denial of a Rule 50(a) motion. If there is insufficient evidence for a jury reasonably to have found one of the elements of a claim to have been proven, the court has a duty to grant a proper Rule 50(b) motion.”

But as the panel clarified, the district court generally may not revisit a prima facie case that merely erects a presumption of discrimination: “Our holding that the don’t-look-back rule does not bar the district court from reconsidering, or us from reviewing, the existence of an element of the claim that is also a component of the prima facie case does not mean that the rule as no force and effect. The rule serves as a bar, prevents a look back, where a component of the prima facie case that is not an element of the claim is concerned.”

In other words, it would be a mistake to take this decision to mean that a district court may always be allowed to pick apart the prima facie case, even after a plaintiff survives summary judgment and trial. The prima facie case, so-called, must coincide with the merits (e.g., whether the plaintiff is disabled or the employee endured an adverse employment action) to allow reconsideration after trial. Conversely, facts simply raising an inference of discrimination (e.g., that the position desired by the plaintiff remained opened), rebutted at trial by the employer, are immune from later review.

Tuesday, August 2, 2005

Employees need to know that sex/race harassment claims involving co-workers commence against the employer (under federal law) only after the complaints reach management’s ears. Ordinarily, no matter how severe the harassment, the victimized employee has to raise a fuss with the correct manager, and the employer must then drop the ball, such as taking no action, insufficient action or the wrong kind of action (e.g. exiling the complaining employee to Siberia). In Shafer v. Kal Kan Foods, No. 04-2066 (7th Cir. Aug. 1, 2005), the panel explains, “What turn[s] sexual assaults by a co-worker (which do not violate Title VII) into sex discrimination by the employer (which does) was the management’s response” (emphasis added).

In this case, the male plaintiff was subjected to “bullying language and sexual innuendo” culminating in “four assaults and batteries” by a much larger male co-worker. But the plaintiff inconveniently took his complaints to a female manager who (the summary judgment record reveals) left the company in 2001, apparently without passing word along to higher-ups. By the time the plaintiff took the bull by the horns and spoke to his direct supervisor, the harassment abated. Thus there was no action attributable to the company that constituted sex discrimination, and summary judgment was affirmed.



Daily Developments in EEO Law
EEO Case Summaries by Circuit
Old “Daily Developments” Blog Archive

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

Web Resources

Other Employment Sites Worth a Spin (updated 12/19/08)

General Employment

Ross’s Employment Law Blog

Workplace Fairness

Workplace Prof Blog

George’s Employment Blog

Jottings by an Employment Lawyer

Employment Law Information Network

HR Lawyer’s Blog

Labor Employment Law Blog

What’s New in Employment Law?


Alaska Employment Law

California Labor & Employment Law Blog

Storm’s California Employment Law

Connecticut Employment Law Blog

Delaware Employment Law Blog

Milwaukee Employment Lawyer

New York Employment Lawyer Blog

Ohio Employers Law Blog

[Virginia] The Laconic Law Blog

Legal-Related, Not Specifically Employment, But Good Reading

How Appealing

Wait A Second! [Second Circuit cases]

Robert Reich’s Blog


tell us about your case


our office locations

Outten & Golden LLP
685 Third Avenue, 25th Floor  
New York, NY 10017  
Phone: 212-245-1000
Map and Directions

Outten & Golden LLP
One California Street, 12th Floor
San Francisco, CA 94111
Map and Directions

Outten & Golden LLP
601 Massachussetts Avenue NW
Second Floor West Suite 200W
Washington, DC 20001
Map and Directions