September 2005

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

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

Thursday, September 22, 2005

Another arbitration severability decision, Jackson v. Cintas Corporation, No. 04-15679 (11th Cir. Sept. 21, 2005), with the same dismal result — a clearly illegal provision (shortening the limitations period for filing an FLSA claim) blue-penciled out, and the rest of the agreement enforced. (For another recent instance, see Judge John Roberts panel opinion for the D.C. Circuit in Booker v. Robert Half Int’l, Inc., 413 F.3d 77, 95 FEP 1841 (D.C. Cir. 2005).)

Cases like this, to me, smack of gamesmanship by employers and their lawyers. To wit, stock up your arbitration agreement with ad terrorem provisions (loser-pays is a popular one), which will scare off many claims before they begin. For employees intrepid enough to challenge the arbitration agreement, they are forced to litigate such provisions in court (or risk losing them before the arbitrator, without effective judicial review) even before reaching the merits. The employer then has the option of rolling on the illegal provision, but insisting on enforcement of the balance of the agreement. As often as not, the employer gets its way. So, as in this case, considerable time and costs are expended uselessly in court . . . the opposite of what arbitration advocates promised us. A fairer rule would ban severability, which would force employers — the sole drafters of the arbitration rules — to compose procedures that are well within the lines.

Wednesday, September 21, 2005

Not much to write about lately, but here’s a headscratcher from the Second Circuit: Aurecchione v. Schoolman Transportation System, Inc., No. 04-0561 (2d Cir. Sept. 21, 2005) (available on the Second Circuit website) . The plaintiff, who filed her original sex discrimination action (for denial of a promotion and raise) in 1987 in the New York State Division of Human Rights, eventually won a judgment of back pay, compensatory damages and interest in 1999. Thereupon, the EEOC issued a right to sue and plaintiff brought a Title VII action. The action claimed only sought attorneys fees, claiming an entitlement under New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980), for time expended before the state agency. The action was stayed until 2002, while the original state agency decision journeyed through an appeal in the state court.

The district court dismissed the complaint on a subject matter jurisdiction ground, to wit, that remedies for state proceedings were confined to the state administrative forum. The panel unanimously reversed, though treading different paths to get there. The panel majority held that the jurisdictional defect (failure to cite Title VII in the complaint) could have been cured by amendment, citing (and, I confess, I’d never heard of it until today) 28 U.S.C. § 1653, which provides that “[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” Judge Kearse concurred dubitante, expressing “skepticism” that a stand-alone claim for attorneys’ fees could exist (or, in any case, that res judicata barred a new claim), but allowing plaintiff leave to amend the complaint.

All I can think is that after eighteen-plus years, and interest on top of it, that must be one hell of a whopping attorneys’ fee.

Friday, September 16, 2005

Some good news, and some very bad news, for a long-running set of actions challenging vision restrictions on UPS bus drivers. EEOC v. United Parcel Service, Inc., No. 03-16855 (9th Cir. Sept. 25, 2005) , a group of consolidated appeals, holds under California’s Fair Employment and Housing Act (FEHA), that while a group of plaintiffs had standing as qualified persons with a disability to challenge a ban on monocular drivers, the employer in turn made out a successful “safety-of-others” defense (comparable to a “direct threat” defense under the ADA) to support its restriction. (The EEOC had intervened in one of the cases to bring its own ADA challenge to the policy, hence the caption.)

Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999), had previously held under the ADA that an employer was entitled to rely on a Department of Transportation (DOT) visual acuity standard as a job qualification criterion for a truck driver position, including limitations on monocular drivers. UPS went further than the DOT and banned monocular persons even from driving light vehicles (rated below 10,000 pounds). This restriction was imposed despite that many monocular individuals preserve sufficient peripheral vision for safe driving and that monocularity usually does not impair depth perception at a distance. UPS based its policy on studies showing a moderate but perceptible increase of accident risk with persons having this condition.

UPS’s case began not with a defense of its policy, but a challenge to the drivers’ standing. On interlocutory appeals in two cases (and a final judgment in favor of plaintiffs in the third), the Ninth Circuit had no difficulty affirming the district court’s holding that the drivers were limited in the major life activities in seeing and working. (FEHA — in contrast to the ADA — requires just a limitation, rather than a “substantial limitation,” and working is expressly recognized by California state law as a “major life activity.”)

But reviewing the final judgment in the one case against UPS that had gone to trial, the court reversed a judgment for plaintiffs. It found that the employer proved the FEHA safety-of-others defense as a matter of law. That defense provides that the employer avoids liability if the employee “cannot perform the essential functions of the position in question in a manner which would not endanger the health or safety of others to a greater extent than if an individual without a disability performed the job.” Upon review of the record, it found that “potential for endangerment of human life justifies safety-based restrictions even when the risk of occurrence is modest. For that reason, we conclude that Intervenors’ failure to meet the Vision Protocol demonstrates that their performance of the duties of a full-time package car driver would endanger the health and safety of others . . . ” under California law.

Wednesday, September 14, 2005

Here’s a novel issue, resolved equitably in EEOC v. Navy Federal Credit Union, No. 04-2058 (4th Cir. Sept. 13, 2005) : Can the EEOC be precluded by laches from pursuing a claim held up by a local FEP (fair employment practice) agency with which it has a worksharing agreement? The EEOC lost a retaliation claim on summary judgment, both on the merits and on laches grounds. Despite holding the Commission to an abuse of discretion standard on the laches ground, the panel reversed, finding that the federal enforcement action cannot be barred by the mistakes of the local agency. (The panel also reversed summary judgment on the merits.)

The claimant’s charge of retaliation, filed initially with the Fairfax County Human Rights Commission (FCHRC) in March of 1997, was cross-filed with the EEOC two days later. The FCHRC held onto the charge for nearly four years, before finally ruling on the complaint in February of 2001 and referring the matter back to the Commission. By April of 2003, all conciliation efforts proving fruitless, the EEOC filed an action. But the district court found the claim time barred because of the four-year gap in the local proceeding.

Finding the two agencies autonomous, the panel reversed summary judgment on laches: “The autonomy enjoyed by the EEOC and the FCHRC controls our assessment of the laches issue. The doctrine of laches requires that a party demonstrate a ‘lack of diligence by the party against whom the defense is asserted.’ Absent a showing that the delaying entity is the agent or alter ego of the party against whom laches is asserted, we are unable to penalize the latter (the EEOC) for the actions of the former (the FCHRC). By attributing the FCHRC’s delay to the EEOC for laches purposes, the district court made a legal error, constituting an abuse of discretion.” (Citation omitted.)

Tuesday, September 13, 2005

Plaintiffs’ attorneys — indulge in Schadenfreude by reading Sheppard v. River Valley Fitness One, L.P., No. 04-1831 (1st Cir. Sept. 9, 2005). Mary Sheppard sued her employer for sex harassment; her manager Robert Aubin, filed a separate action for retaliation; and the employer shot back with a counterclaim against both for conspiracy to fabricate a lawsuit. The employer then settled with Aubin, in which the manager agreed to entry of a $50,000 stipulated judgment but (as memorialized in the parties’ agreement) had to pay just $100 for release and satisfaction. The employer’s attorney then attempted to use the $50,000 judgment as a wedge in the Sheppard case: writing a letter to Sheppard’s counsel that threatened to expose her publicly to the press unless she, too, paid $50,000 and signed an affidavit backing up the employer’s version of events.

Sheppard’s counsel, unbowed, moved to compel production of the Aubin agreement, which the employer refused to do. The employer’s counsel represented to the court (in moving for a protective order) that the agreement had “no bearing on any of the issues in this case.” The magistrate judge reviewed the agreement in camera, ordered its production, and awarded sanctions for, inter alia, misrepresenting the contents of the agreement to the court.

While reversing one of the magistrate’s findings, the First Circuit left intact sanctions for defense counsel’s breach of his duty of candor with plaintiff’s lawyer (ABA Model Rule 4.1(a)). “It is evident from the letter, read in its entirety, that [defense counsel] Whittington wanted Sheppard to believe that the Aubin case had settled for a payment of $50,000. True, Whittington did not say so explicitly. However, he managed to convey that impression anyway by selecting certain words and omitting certain details with studied precision. As the district court wrote: ‘[T]he words used (and not used) by Whittington seem carefully chosen, and, if dissected and construed from a minimalist point of view, are defensible as “literally true.” But it is likewise plainly apparent that those words were meant to convey more.’ After all, the letter’s purpose–to encourage Sheppard to pay $50,000 to settle her case–depended considerably on leaving the impression that Aubin, in a similar position, had already committed to doing the same thing.”

Fees were affirmed under Fed. R. Civ. P. 26(c) and 37(a)(4)(A). Although defense counsel argued, in his motion for a protective order, that settlement agreements are generally inadmissible to establish liability, the First Circuit noted that the agreement here could have impeached Aubin and the defendant had the case proceeded to trial.

Friday, September 9, 2005

Although the appeal resulted in vacating a jury verdict for the employee, and a remand for a new trial, the Seventh Circuit helped advance the ball for retaliation plaintiffs in Byrd v. Illinois Department of Public Health, No. 04-1416 (7th Cir. Sept. 8, 2005) .

The employee suffered a stream of racial insults from Regional Health Officer John Pitzer, who ran Lester Byrd’s section but did not supervise him; Kate Kelly was Byrd’s direct supervisor, and Carl Langkop was Kelly’s. A sub-par performance evaluation (that was tied to raises) led Byrd to file a state discrimination charge with the Illinois Department of Human Rights. Kelly and Langkop attended the fact-finding conference, and after that date Byrd’s job ratings began to tank (and he incurred multiple disciplinary warnings). Byrd then sued the Department for race discrimination and retaliation under Title VII. At trial, a jury found for the department on the discrimination claim and in favor of Byrd on the retaliation claim ($15,090 for lost wages, $82,500 for emotional pain, humiliation, and loss of enjoyment of life).

Ah, but that the jury had only been properly instructed. . . but the judge — forced to pick between two erroneous causation instructions — selected plaintiff’s form: “If the decision makers in this case regarding Lester Byrd’s salary and/or three day suspension acted as the conduit for another employee’s prejudice, the innocence of the decision makers cannot relieve the Illinois Department of Public Health from legal responsibility.” This instruction, accurate as far as it went, omitted one critical reservation: “The court failed to instruct the jury that the causal link could be broken if Kelly and Langkop took action against Byrd for independent reasons untainted by any illegal motive of Pitzer.” Because facts in the record could have shown that Byrd’s evaluations and disciplinary actions might have been decided independently of Pitzer, the error was not harmless. The case was remanded.

On the other hand, the panel took pains to reconcile circuit law on the causation issue, holding that the involvement of Pitzer in the process may have been enough to shift the burden to defendant: “The Department regularly solicited Pitzer’s advice in Byrd’s evaluations and there is ample evidence that Pitzer was biased. Pitzer’s involvement in the evaluation process raises the possibility that the Department’s disciplinary decisions as to Byrd were based on multiple grounds and that one or more of these grounds were illegitimate. If so, the Department could be liable for Pitzer’s biased input unless the Department can demonstrate to the jury that it would have taken the same disciplinary actions against Byrd absent any tainted input from Pitzer.” The panel also exhaustively reviewed and restated the circuit law on Title VII retaliation, quite worth reading if you practice there.

September 8, 2005

Is that our employee’s voice on the tape, threatening to set off a bomb? And it if it isn’t, does it matter?

There is a steady stream of cases where minority employees are shuttled out of their jobs for disciplinary reasons, never given an opportunity to vindicate themselves and — when they challenge the termination in a lawsuit — find that the only thing that matters is whether the employer can convince the judge on summary judgment that (regardless of the facts) it “honestly believed” that the minority employee was the malefactor. One occasionally sees judicial resistance to this regime (Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285 (7th Cir. 1999) and Fonseca v. Sysco Food Services of Arizona, Inc., 374 F.3d 840 (9th Cir. 2004) are two instances), but most cases look dismally like this one: Michael Johnson v. AT&T, No. 04-2305 (8th Cir. Sept. 7, 2005)

One can sympathize with an employer responding, even abruptly, to repeated death threats. After multiple anonymous calls to the employer and 911 reporting a bomb in the facility (and two evacuations and searches, both fruitless), the employer obtained a tape of the 911 caller. At first, four witnesses could not identify the caller (and the two receptionists, in particular, reported that the voice on the tape was different from the one they heard). But then the company pulled twelve sales team employees together in a room and had them listen to it. After one employee announced that she thought it was Michael Johnson (an African American), eight more employees chimed in that they thought so, too. Shortly thereafter, management pulled Johnson into a meeting and fired him, based on the nine-witness identification.

Later examination revealed that the calls did not trace to Johnson’s phone, and that two employees identified Johnson as being on the floor when the latest threats were phoned in (and thus unlikely to be the source).

So could the employer rely on the gang identification of plaintiff’s voice on the tape? Sure, holds the Eighth Circuit, as there was no evidence that the investigation was tainted by race.

“Johnson argues that AT&T was mistaken in its belief that Johnson made the bomb threats and that AT&T had not conducted enough of an investigation for its belief to be considered reasonable. Contrary to Johnson’s assertion, the proper inquiry is not whether AT&T was factually correct in determining that Johnson had made the bomb threats. Rather, the proper inquiry is whether AT&T honestly believed that Johnson had made the bomb threats. . . . Thus even if AT&T had no solid proof that Johnson made the bomb threats, and even if AT&T was mistaken in its belief that Michael Johnson had made the threats, any such mistake does not automatically prove that AT&T was instead motivated by unlawful discrimination.”

Naturally, the critical question is whether, if the accused employee were white, the company would have acted the same way. It is impossible to do a blind study of the problem. And the court (possibly even the employee himself) did not pursue this line. But all of the employees who identified Johnson denied under oath knowing that the accused was believed to be African-American, even though the police had themselves so concluded when they heard the tape. This evidence presents an implicit credibility issue (whether the witnesses singled out Johnson because they heard what they believed to be a black man on the 911 tape), which could be material to pretext. But we, and Michael Johnson, will never know.

Tuesday, September 6, 2005

The circuits have recently confronted the problem of workplace harassment that, while lacking strictly sexual content, evinces gender-based hostility. The question presented in these cases is whether the harassment is “because of . . . sex” within the meaning of Title VII. Consuelo Chavez v. State of New Mexico, 397 F.3d 826 (10th Cir. 2005), was one such recent case (see my prior discussion here, 2/3/05). The Ninth Circuit just published another opinion touching on the same issue, EEOC v. National Education Association, No. 04-35029 (9th Cir. Sept. 2, 2005).

The NEA union, and its local in Alaska, found themselves sued by the EEOC and three private plaintiff-intervenors for a hostile work environment, supposedly instigated by Interim Assistant Executive Director Thomas Harvey. “The [summary judgment] record reveals numerous episodes of Harvey shouting in a loud and hostile manner at female employees. The shouting was frequent, profane, and often public. The record shows little or no provocation for these episodes.” There were also incidents of threatening physical gestures. Nevertheless, “Harvey’s behavior was not, on its face, sex- or gender-related. No one testified that Harvey made sexual overtures or lewd comments, that he referred to women employees in gender-specific terms, or that he imposed gender-specific requirements upon women employees.”

But while the district court found the lack of gender-specific language or sexual content meaningful, the Ninth Circuit held that sexual animus does not have to be dressed-up in a sexually-biased vocabulary. “Indeed, this case illustrates an alternative motivational theory in which an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men. There is no logical reason why such a motive is any less because of sex than a motive involving sexual frustration, desire, or simply a motive to exclude or expel women from the workplace.”

The men, in contrast to the women, enjoyed comradeship with Harvey, amounting to a “‘we’re all guys here'” relationship. The disparate treatment of the men and women on staff presented a triable issue of fact.

Thursday, September 1, 2005

If you attempt to visit the Fifth Circuit website, you are redirected to the webpage for the U.S. District Court for the Southern District of Texas, with an emergency order linked suspending filings in the court in New Orleans.

I and my spouse have visited New Orleans several times and grieve the loss of that great city to the ravages of Katrina. With the appalling loss of life, and flattening of entire historic districts, it is difficult today to conceive how the city can ever be reclaimed.

Gilooly v. Missouri Dep’t of Health and Senior Services, No. 04-2460 (8th Cir. Aug. 31, 2005) presents the nice, razor-edge problem of what an employer may do when it believes an employee was lying during an internal sex harassment investigation. The employee cannot be fired for filing the charge in the first place — that’s retaliation under Title VII, under the “participation” clause of the 42 U.S.C. § 2000e-3(a). But an employee may ordinarily be fired for dishonesty.

Here, the panel majority reversed summary judgment. Although the panel agreed that a complaint under the participation clause must be brough in good faith, the majority found that “[t]here is no evidence that indicates Gilooly had been caught in a clear, unequivocal lie, but, rather, the evidence shows that the investigator had found Gilooly to be less credible than the other witnesses. Taking the termination letter in a light most favorable to Gilooly and for the reasons discussed below, we conclude that this case gives a necessary inference of retaliatory motive.” Moreover,

“This judgment of assessing witness credibility is normally the province of a fact-finder at a sexual harassment trial. Allowing the employer’s investigation to essentially short-circuit the retaliation claim before it begins is antithetical to the design of Title VII. Had the investigator found a clearer record of deception and detailed the basis for such findings, a court could find that the firing was not for protected conduct. However, in this case, the question is largely undeveloped and best left to a fact-finder to decide.”

The dissent, while agreeing overall with the legal analysis of the majority, urged that the court defer to the employer’s honest belief that the employee participated in bad faith. “Once the scope of ‘opposition’ and ‘participation’ has been defined to exclude false and malicious allegations, an employer acting on that basis does not discipline the employee ‘because he has opposed’ or ‘because he has participated’ in a way that is protected by the statute. The employer is motivated by its conclusion that the employee committed unprotected misconduct, not by the fact that an employee engaged in protected activity.” [Foot note omitted.]



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November 01, 2010
Stiefel v. Bechtel Corp., No. 09-55764 (9th Cir. Nov. 1, 2010); Kepas v. eBay Inc., No. 09-4200 (10th Cir. Nov. 2, 2010)

September 29, 2010
Newberry v. Burlington Basket Co., No. 09-3082 (8th Cir. Sept. 28, 2010)

September 08, 2010
Payne v. Salazar, No. 09-5291 (D.C. Cir. Sept. 7, 2010)

September 06, 2010
EEOC v. Prospect Airport Services, No. 07-17221 (9th Cir. Sept. 3, 2010)

August 31, 2010
Hatmaker v. Memorial Medical Center, No. 09-3002 (7th Cir. Aug. 30, 2010)


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