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November 2005

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

Wednesday, November 30, 2005

Procedure runs riot, once again, in a Title VII case: Chacko v. Patuxent Institution, No. 04-1577 (4th Cir. Nov. 29, 2005) . The plaintiff, an Indian-American correctional officer in a state prison, prevailed before a jury with the following record:

"Chacko's primary theory of the case was that over his twenty-year career, his coworkers on a daily basis hurled a barrage of national-origin insults and epithets at him. These coworkers made his workday miserable with such degrading comments as 'camel jockey,' 'go back home and ride your camel,' 'crazy Indian,' and 'go back to Indians wash elephant nuts for a living.' This evidence was 'the centerpiece in a collection of hostile and abusive treatment that Mr. Chacko encountered as an employee of Patuxent Institution.' Br. of Appellee at 13. The evidence at trial also indicated that certain supervisors may have observed the heinous conduct, but did not take corrective action. Instead, they laughed when coworkers made offensive comments, and may have joined in the name calling. There was no evidence, however, that any of the supervisors identified in the administrative charges ever called Chacko derogatory names, and Chacko specifically testified that neither [Captain] Howard nor [Chief] Eggleston engaged in such conduct."

On appeal, though, the state obtained judgment as a matter of law and the jury verdict was vacated. This, on the singular ground that when the employee filed his two EEOC charges in 1999 and 2000, he failed to specify a continuous course of co-worker harassment. Rather, his charges were limited to a few discrete instances of supervisor harassment, along with demotion, denial of promotion and retaliation. So as the Fourth Circuit held:

"The sharp differences between this [trial] evidence and the allegations in Chacko's administrative charges compel the conclusion that he failed to exhaust his administrative remedies. The administrative charges at bottom alleged specific episodes of harassment. None of them mentioned coworker harassment or national-origin epithets. In contrast, Chacko's case at trial encompassed harassment over his two decades at Patuxent. It relied heavily on testimony that primarily coworkers (and not supervisors) called him national-origin epithets. The administrative charges thus dealt with different time frames, actors, and conduct than the central evidence at trial."

Thus, he failed as a matter of law to exhaust his administrative remedies. Chacko couldn't even get traction with the catch-all standard of whether the Commission might have been expected to discover the claim in a reasonable investigation: "Here, however, a reasonable investigation of discrete instances of supervisor misconduct not involving name-calling could not be expected to lead to a continuous pattern of nonsupervisory misconduct which did involve name-calling."

No point in repeating (1) how essential it is for counsel and EEOC intake investigators to scour every possible theory at the outset and write them in the charge; or (2) how the train long ago left the station on the conciliation model of Title VII and that employers, who seldom conciliate in earnest, simply exploit the charge-filing requirement as a trap for the unwary. I've got a new idea: Because (in most circuits) the requirement of administrative exhaustion is not jurisdictional, why not just leave the question of exhaustion to the jury (just as we do limitations issues, which is essentially the same issue in different guise)? Under what diktat must that issue belong to the bench? Let the jury decide whether the employee gave fair notice, subject to the usual standards of review.

Wednesday, November 23, 2005

It is little remembered that the McDonnell Douglas burden-shifting test (in its original conception) served to screen out, at the prima facie stage, the two most likely reasons that an applicant/employee might be turned down for a job (lack of minimum qualifications, lack of a vacancy). It then became the employer's burden (of production, under Burdine) to furnish another reason, which then became the focal point of the balance of the case. As the Supreme Court repeatedly reminded, the elements of the test were never meant to be applied compulsively to every individual claim of disparate treatment discrimination, although gradually this is exactly what occurred.

So it comes as only a mild surprise -- though absolutely consistent with first principles -- to find the Fourth Circuit bringing itself into line with every other federal court of appeals to recognize that replacement by a fired employee with someone in the protected group does not necessarily bar a Title VII sex/pregnancy claim: Miles v. Dell Inc., No. 04-2500 (4th Cir. Nov. 22, 2005). Although the court announces the outcome here as a newly-minted "different-decision maker exception to the fourth prong of the Title VII prima facie case," it really appears (in other guise) to recognize what the Supreme Court held already explicitly under the ADEA in O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13 (1996) -- that there are instances where the identity of the replacement is not probative of discriminatory intent.

In a nutshell, the facts: The employee, a salesperson for Dell, found herself in constant friction (from March 2001 to June 2002) with her newly-assigned, male supervisor. Eventually, the manager fired her and tried to fill her position with a male. His superiors instead "insisted on hiring another female account manager." The district court believed that the latter fact quashed the employee's prima facie case and granted summary judgment. (It also granted summary judgment on a retaliation claim on administrative exhaustion grounds; this was affirmed on appeal.)

The Fourth Circuit reversed. In its analysis, the court posited cases where managers deliberately fire Employee A because of race, then hire Employee B of the same race as a replacement to mask the discrimination.

"In cases like these, whether because of the particular circumstances surrounding the firing decision or because of the particular circumstances surrounding the replacement hiring decision, the employer's decision to hire someone of the plaintiff's protected class as a replacement does not give rise to an inference of non-discrimination with respect to the decision to fire the plaintiff. In such cases, the fourth prong of the prima facie case ought to give way. . . .

"We believe that another such category of cases is that wherein the firing and replacement hiring decisions are made by different decision makers. In such cases, we are convinced that the replacement hiring decision simply does not give rise to an inference of nondiscrimination with respect to the firing decision. That is, when one individual makes the decision to fire the plaintiff and another makes the replacement hiring decision, the second individual's hiring decision has no probative value whatsoever as to whether the first individual's firing decision was motivated by the plaintiff's protected status. We accordingly hold that, when a Title VII plaintiff can show that the firing and hiring decisions were made by different decision makers, she need not show as part of her prima facie case that she was replaced by someone outside her protected class."

Now you can see the trajectory of this "exception" in the district courts of the Fourth Circuit: employers will now argue that the original manager had a hand or input in the new hiring decision, and that any case not within all fours of Miles must be fit to the procrustean bed of McDonnell Douglas. Fortunately, for the development of the law and the interests of justice, the Fourth Circuit's decision (signed -- no less -- by card-carrying Federalist Society conservative, Judge Luttig) sweeps with a broader brush. It could make litigating discrimination claims a little easier in that notoriously conservative circuit.

Tuesday, November 22, 2005

[A thanks to my readers --sorry I've been out of the swim the past few days; travel and a bad cold kept me down.]

The Seventh Circuit makes a colorful illustration of an elusive point in Dunn v. Washington County Hospital, No. 05-1277 (7th Cir. Nov. 17, 2005), in which a department head (a doctor with privileges, but not an employee) allegedly harassed female employees. The hospital maintained, and the district court agreed, that the employer could not be held liable for harassment by a non-agent whose behavior it supposedly could not control. But the Seventh Circuit panel reverses summary judgment on a Title VII claim. The panel opinion restates that employer liability in Title VII cases arises not under respondeat superior, but directly for the adverse employment actions against the employee regardless of the source (manager, employee, officer, independent contractor or even clients and customers).

And so: "Ability to 'control' the actor plays no role. Employees are not puppets on strings; employers have an arsenal of incentives and sanctions (including discharge) that can be applied to affect conduct. It is the use (or failure to use) these options that makes an employer responsible- and in this respect independent contractors are no different from employees. Indeed, it makes no difference whether the actor is human. Suppose a patient kept a macaw in his room, that the bird bit and scratched women but not men, and that the Hospital did nothing. The Hospital would be responsible for the decision to expose women to the working conditions affected by the macaw, even though the bird (a) was not an employee, and (b) could not be controlled by reasoning or sanctions. It would be the Hospital's responsibility to protect its female employees by excluding the offending bird from its premises."

(The opinion drew a partial dissent by Judge Rovner, who agreed with the above, but disapproved affirmance of summary judgment on the plaintiff's two other theories: equal protection and retaliation. The separate opinion, narrating the record in detail, suggests facts that a jury could find in support of both claims -- in contrast to the majority's assessment, in the opening paragraph of the court's opinion, that "Details do not matter for current purposes.")

Thursday, November 17, 2005

Another ADA plaintiff prevails in the Fifth Circuit in Rodriguez v. ConAgra Grocery Products Co., No. 04-11473 (5th Cir. Nov. 14, 2005), and in grand fashion! The court below granted summary judgment to the employer, ConAgra, which withdrew an offer to hire Rodriguez as a Production Utility employee because he supposedly failed his physical exam. The exam revealed an elevated glucose level in his urine, which caused the company doctor to classify him "not medically qualified" because of presumably "uncontrolled diabetes." The district court found that the finding of "uncontrolled diabetes" was a valid reason not to carry out the job offer.

But the district court erred, found the panel, because the employee -- instead of proceeding on straight disability discrimination -- alleged that ConAgra "regarded" him as having an impairment. "ConAgra's argument that Rodriguez's 'failure to control' his diabetes obviates the protection of the ADA is a red herring. This case is not about 'failure to control'; rather, it is a garden variety 'regarded as disabled' case. In such cases, the question of control is never relevant: Any rule requiring that a plaintiff exercise some level of control over his impairment --assuming arguendo that such a rule even exists -- is relevant and applies only in an actual disability case. At its core, this case is about the TCHRA/ADA's emphasis on treating impaired job applicants as individuals. ConAgra's blanket policy of refusing to hire what it characterizes as 'uncontrolled' diabetics violates this fundamental tenet of ADA law; it embraces what the ADA detests: reliance on 'stereotypes and generalizations' about an illness when making employment decisions."

Thus, the panel rejected some 17 cases cited by ConAgra involving non-complying diabetics, on the grounds that none of those cases ruled squarely on ADA "regarded as" claims. And because the plaintiff's actual condition was not substantially limiting (despite the employer's impression to the contrary), and the employer failed to make an individualized assessment, the panel granted the plaintiff summary judgment on his claim on the ground that "ConAgra regarded him as substantially limited in the major life activity of working by his diabetes."

Wednesday, November 16, 2005

Procedure triumphs in Jones v. District of Columbia Dep't of Corrections, No. 04-7181 (D.C. Cir. Nov. 15, 2005), the first opinion that I've read signed by Judge Janice Brown Rogers. The court affirmed summary judgment in a retaliation case, but vacated judgment on the plaintiff's harassment claim, finding that the employer forfeited the Faragher/Ellerth defense by not pleading it in its answer (Fed. R. Civ. P. 8(C)). Under existing circuit authority, Harris v. Secretary, United States Department of Veterans Affairs , 126 F.3d 339 (D.C. Cir. 1997), the court reaffirmed that the failure to allege the defense unconditionally barred its presentation on summary judgment.

The department (whose lawyers had already blundered by failing to preserve the defense) tried arguing that Jones waited too long to object to the deficient answer, but presented this argument only during oral argument on appeal: "the Department was equally dilatory for waiting until oral argument to raise the forfeiture argument." Ah, forfeiting forfeiture!, a concept only appellate lawyers could love. But the department could prevail in the next act, with the panel holding that "the Department may move to amend its answer on remand. If the trial court permits the amendment, then the Department may renew its motion for summary judgment or attempt to prove the elements of its Faragher-Ellerth defense at trial."

Monday, November 14, 2005

Science estimates that there are 38.9 x 107 McDonnell Douglas burden-shifting opinions in the known galaxy.

So why, even on basic points, can't the circuits seem to settle on the very order of the standards? As with the Thursday post, here's another panel uncertain about how to apply the prima facie test -- this time, concerning a female employee (White) denied a promotion in favor of a male candidate (Walker). White v. Columbus Metropolitan Housing Authority, No. 03-4219 (6th Cir. Nov. 14, 2005).

The panel majority (Judge Gibbons and a visiting district court judge) affirmed summary judgment for the Authority, holding that the plaintiff failed to present a prima facie case on the fourth element -- that a similarly-situated male candidate received superior treatment. "As the district court notes, a true comparison of White's qualifications with those of Walker reveals that White is not as qualified as Walker for the position, and therefore, White fails to meet the fourth prong of her prima facie burden." The panel engaged in an extended comparison of the candidates' respective "experience in security, investigation, safety and crime prevention," each comparison which apparently favored Walker. "Comparing the qualifications of White and Walker, it is clear that Walker has superior experience in material and relevant respects, and therefore, White and Walker cannot be considered similarly qualified for the position, as required to meet the fourth prong of White's prima facie burden."

The panel majority explicitly disapproved a 2003 decision, Anthony v. BTR Automotive Sealing Systems, Inc. , 339 F.3d 506, 515 (6th Cir. 2003), that articulated a less-rigorous standard for the fourth prong.

Judge Moore concurred in the judgment, but wrote that the panel erred in finding that the plaintiff failed to present a prima facie case: "while a general weighing of White's and Walker's qualifications is required during the prima facie stage to determine whether they have similar qualifications, a more rigorous comparison of the two candidates such as the majority conducts in stage one is better reserved for stages two and three of the McDonnell Douglas framework. This is especially true in a case such as this, where the employer asserts as its nondiscriminatory reason for failing to promote the plaintiff that it chose to hire a candidate it considered more qualified."

Decisions like this unnecessarily complicate -- for litigants and the district courts alike -- what ought to be essentially simple inquiries. If the employer legitimately believed the plaintiff less-qualified that the successful candidate, it suffers no prejudice presenting this argument in the third-stage of the McDonnell Douglas framework. Also worth noting: the economic value of a promotion case in a municipal bureaucracy would ordinarily be modest; and yet, this case was filed in 2001, the appeal followed in 2003 and the panel took over a year from the date of oral argument to decide the plaintiff's fate! Something in the process is seriously off the tracks.

Thursday, November 10, 2005

Did an Eighth Circuit panel take an unauthorized shortcut in its appraisal of summary judgment in a routine employment discrimination case? The judges disagree in Baucom v. Holiday Companies, Inc., No. 05-1393 (8th Cir. Nov. 10, 2005). This was a state and federal law disability and age discrimination case, where the employee (an assistant manager in a convenience store) complained that the employer, inter alia, cut his working hours from above to below 40 hours a week. Apparently lacking direct evidence, the employee relied on the burden-shifting McDonnell Douglas test instead.

The panel majority affirmed summary judgment on the ground that the alleged "adverse employment actions" were either self-inflicted (the employee took health-related leave time) or a function of cost-cutting measures at the store -- and in any event fell short of the standard of materiality set by case law: "In 2002, Baucom averaged less than 40 hours per week in only three months. During those three months, he averaged 38.6, 39, and 38 hours. Furthermore, Baucom conceded during his deposition any scheduling limitation was corrected by November 2002. In 2003, the data provided by Baucom shows a slight decrease in average hours worked, but that average hovers around 38 or 39 hours. We do not consider such a minor decrease in scheduled hours for a person working in a retail setting to be a material change, especially when the hours consistently remain at a full-time level. The district court correctly held no reasonable juror could conclude this amounted to an adverse employment action."

Senior Judge Bright concurred overall (finding that the employee lacked standing as "disabled" under the statutes, and failed to identify more youthful and better-treated cohorts under the ADEA), but disapproved the majority's analysis of "adverse employment action": "The source of, and reasons for, Baucom's reduced hours help explain that the reductions were the result of legitimate, nondiscriminatory actions by Holiday (the burden shifting prong of the McDonnell Douglas test). The adverse employment prong simply addresses whether Baucom suffered a tangible change in duties or work conditions giving rise to a material employment disadvantage; not who cut Baucom's hours, or the reasons explaining the reductions."

Wednesday, November 9, 2005

An employer responds to a quality-control problem on one of its assembly lines by requiring the incumbent employees to pass an exam to continue working (or, if not, to accept a transfer to a different division). Four women ages 40 and over fail the test and accept transfers, but also file charges of discrimination alleging, inter alia, age and sex discrimination. The Tenth Circuit finds in Garrison v. Gambro Inc., No. 04-1409 (10th Cir. Nov. 8, 2005) that the four plaintiffs, under these circumstances, do not even meet the prima facie standard of McDonnell Douglas. That the employees had formally occupied and performed well in the same positions did not constitute proof that they were "qualified" under the burden-shifting rubric: "it was undisputed that the new EQ-1 positions required the assemblers to self-inspect their work and to undergo 200 hours of formal, intensive training by engineers, which created increased workplace expectations. Thus, it was not unreasonable to require more than good, subjective past-performance evaluations in selecting the very best applicants, particularly in light of the quality problems." The court also finds that a manager's refusal to allow a lawyer to attend a personal meeting with the laid-off employees was not evidence of retaliation: "Suggesting that the parties work out a satisfactory resolution without involving lawyers was not a retaliatory act that affected her employment status and, therefore, did not constitute an adverse employment action."

Monday, November 7, 2005

At the very fringe of ADA reasonable accommodation cases, there lies the question of whether a requested accommodation is related to the claimed disability. The employer, after all, is required only to accommodate limitations -- not the underlying disabilities. So while the solution is often obvious (lifts or ramps for wheelchairs, large print and high-contrast monitors for the visually disabled), in some cases the connection may be more subtle. See, e.g.,Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 14 A.D. Cases 1204 (8th Cir. 2003) (plaintiff's back injury claimed to substantially limit major life activities of sexual activity and procreation; requested job transfer not related to those alleged limitations); Felix v. New York City Transit Authority, 324 F.3d 102, 14 A.D. Cases 193 (2d Cir. 2003) (transit worker with post-traumatic stress disorder asked to be assigned away from token-selling duties in subway; summary judgment affirmed, where disability -- claimed to cause insomnia -- is not related to the accommodation of being moved away from underground duties).

The First Circuit in Tobin v. Liberty Mutual Ins. Co., No. 04-2391 (1st Cir. Nov. 3, 2005) (available on the First Circuit website), faced a situation where a life insurance salesman -- whose claimed disability was bipolar disorder -- kept slipping short of his quotas. He asked to be assigned "mass marketing" (MM) accounts, described as "group insurance discount programs offered to businesses and associations," and which (according to the record) demanded less individual effort to secure new clients. The company insisted that it distributed such accounts only by merit, but there was a genuine issue of material fact about that explanation. Eventually, the salesman was terminated for performance reasons. The district court granted summary judgment on plaintiff's state and federal disabilities discrimination claims.

While affirming on the discrimination claims, though, the panel reversed summary judgment on the related reasonable accommodation claim. However unified on the result, the panel split over the rationale. The panel majority found that the district court erred in concluding, as a matter of law, that assigning MM accounts to the plaintiff would violate the company's job performance requirements, and hence the essential functions of the job. Concurring, Judge Howard viewed the error in a different light: "Tobin has, however, generated sufficient record evidence to permit the conclusion that assigning him to a mass marketing account would have assisted him in overcoming the particular limitation caused by his bipolar disability. Tobin's supervisor testified that Tobin's biggest problem 'was identifying potential new customers and going to see them' but that 'he [did] a good job at closing the sale.' There was also evidence that, because mass marketing accounts provide the assigned agent with a captive audience of potential clients, closing skills are more important than business generation skills for agents assigned to these accounts. On this evidence, a reasonable jury could conclude that assigning Tobin to a mass marketing account would have assisted him in overcoming his disability-related problem of being insufficiently organized to identify and pursue new clients. For this reason, Tobin's reasonable accommodation claim should proceed."

Friday, November 4, 2005

Not an employment case, but fun anyway.

In briefing fees and costs for a sanction, a more-is-better demand can backfire. See Judge Richard Posner's opinion today in Budget Rent-a-Car System v. Consolidate Equity, LLC, No. 05-3579 (7th Cir. Nov. 4, 2005) . After awarding Fed. R. App. P. 38 sanctions against appellant Consolidate Equity for filing a frivolous appeal, the panel entertained the appellee Budget's fee and cost petition. It found the appellee's statement "exorbitant":

"Because the appeal was dismissed before briefing, Budget's only appellate submission was a four-page jurisdictional memo that cites five cases. Budget claims that the memo cost $4,626.50 to produce (3.3 partner hours at $425 per hour and 10.4 associate hours at $310 per hour); for so modest a product, 13.7 hours of high-paid professionals' time are too many. Budget has also included in its statement of fees and costs its fees for preparing its motion for sanctions and the statement of fees and costs itself-a total, again too high, of $4,354 (1.2 partner hours and 12.4 associate hours). It is inconceivable that this is the going market price for such exiguous submissions."

In view of the statement, instead of simply slashing the request, the court canceled the sanction altogether. "When an award of fees is permissive, denial is an appropriate sanction for requesting an award that is not merely excessive, but so exorbitant as to constitute an abuse of the process of the court asked to make the award."

Now who knows how fair this really is? Perhaps the panel had a visceral reaction to fees that would otherwise be the norm in the market. Maybe the client wouldn't have blinked at paying it. Court of appeals' panels don't often confront raw fee petitions, after all, but customarily see them only on review. Nevertheless, the result of the order is a canceling-out of the sanction (and the law firm, presumably, having to eat the lost time). As my retired partner often said in such situations -- pigs get fed, hogs get slaughtered.

Thursday, November 3, 2005

More evidence of the Byzantine scale of routine discrimination cases: Jaramillo v. Colorado Judicial Department, No. 04-1284 (10th Cir. Nov. 2, 2005). Here's someone who complained of losing a promotion in February of 2001 (allegedly owing to sex), who litigated through to summary judgment in 2004 and lost her appeal in 2005. Not too bad, although unions could probably grieve this stuff in weeks.

What caught my eye was this explanation of the "rule" that, at the pretext stage, the employee ordinarily must create a genuine issue of material fact about each of the legitimate, non-discriminatory reasons for the adverse decision:

"In some cases, however, a successful attack on part of the employer's legitimate, non-discriminatory explanation is enough to survive summary judgment even if one or more of the proffered reasons has not been discredited. Something less than total failure of the employer's defense is sufficient to create a genuine issue of fact when (1) the reasons are so intertwined that a showing of pretext as to one raises a genuine question whether the remaining reason is valid, see id. at 70; (2) the pretextual character of one explanation is 'so fishy and suspicious,' [Russell v. Acme-Evans Co., 51 F.3d 64, 70 (7th Cir. 1995)] that a jury could 'find that the employer (or its decision maker) lacks all credibility,' Chapman v. AI Transport, 229 F.3d 1012, 1050 (11th Cir. 2000) (en banc) (Birch, J., concurring and dissenting); (3) the employer offers a plethora of reasons, and the plaintiff raises substantial doubt about a number of them, Tyler [v. RE/MAX Mt. States, Inc.,] 232 F.3d [808, 814 (10th Cir. 2000)]; (4) the plaintiff discredits each of the employer's objective explanations, leaving only subjective reasons to justify its decision, see Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1298-99 (D.C. Cir. 1998) (en banc); or (5) the employer has changed its explanation under circumstances that suggest dishonesty or bad faith, Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1380-81 (10th Cir. 1994). None of these exceptions apply to Ms. Jaramillo's case."

I'm grateful for this laundry list of exceptions, in case I ever encounter this issue on summary judgment, but what kind of a "rule" spawns such an excess of counter-rules as this? Are we trying to predict what the jury would do with this kind of information, or are the courts just erecting extra hurdles for employees to clear on summary judgment?

Wednesday, November 2, 2005

In a Title VII sex harassment case, the Ninth Circuit affirms summary judgment in a 2-1 opinion that divides over the employer's duty under Faragher/Ellerth to respond to employee complaints, even when the employee asks the company to take no action. Hardage v. CBS Broadcasting, Inc., No. 03-35906 (9th Cir. Nov. 1, 2005).

The employee, a male sales manager for a Seattle-area TV station, allegedly suffered a series of increasingly aggressive sexual advances by the station manager (Kathy Sparks) over a six-month period. These included physical content and grabbing, veiled threats of termination, and scenes of public screaming and histrionics when he rebuffed her demands for sex.

When at last the employee approached his immediate boss (Patty Dean) about these incidents, she suggested most unhelpfully something to the effect of "Why don't you just do it and get it over with. it may put her in a better mood." When interviewed by a representative from human resources (Paul Falcone), the employee said he'd handle the problem himself. There later followed (1) a negative performance review, (2) verbal harassment by Sparks, (3) a write-up for insubordination and (4) express threats of retaliation. The employee resigned the following year.

Finding that a Faragher/Ellerth defense applied to the harassment claim, the court majority analyzed the impact of the employee's complaint to his boss and human resources, coupled with his request not to take action. The panel majority saw -- in the sequence of the employee's complaint and company response -- sufficient evidence of corrective measures to support summary judgment. The turning point was Hardage's complaint six months after the harassment commenced. Not only did the employee spare the details of the extent and nature of the harassment, but he specifically asked Dean to let him resolve the problem out of fear that word of the harassment would spread. (The panel majority also rejected arguments that the company was previously on constructive notice, owing to the open and notorious pattern of harassment.)

The dissent would have set a different standard, demanding a company investigation in spite of the employee's request for forbearance. The dissenting judge noted the fact, which the panel majority did not, that when Hardage complained to Dean, he was informed (according to Falcone's testimony) that he "had three choices: (1) Hardage could 'do absolutely nothing and hope it solves itself,' (2) Hardage could talk to Sparks on his own, or (3) Falcone could 'very nicely talk with' Sparks and ask her to 'just lay back on this a little bit,' but he assured Hardage he would not 'yell'at her and get her in trouble.' 'Notably, not one of these options fulfilled CBS's legal duty to investigate and correct the harassing behavior."

Tuesday, November 1, 2005

A lesser-used federal anti-discrimination statute, the Uniform Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq. ("USERRA" or the "Act") -- which protects members of the military from employment discrimination -- apparently provides a more generous standard for employees. So holds the Eighth Circuit in Maxfield v. Cintas Corp. No. 2, No. 04-2979 (8th Cir. Oct. 31, 2005).

The employee, an African-American reservist, took a military leave of absence for reserve duty from July 15 to September 28, 2001. After suffering mild hassles about his absence from the company's human resource professional Johnson and supervisor Lewis, he returned to work, only to find that his prior title had been eliminated and his new job was less secure (more prone to occasional layoffs). Eventually, he was transferred unwillingly into hourly telemarketing work.

Subsequent tours of duty took the employee away the first five months of 2002 and a long weekend in August of the same year. Upon his return, he was accused of wrongly taking sick leave pay while on reserve duty and terminated.

The panel reversed summary judgment on the USERRA claim (while affirming summary judgment on race discrimination claims). It held that under the USERRA -- in contrast to the common McDonnell Douglas standard, derived from single-motive causation -- all claims follow a "motivating factor" analysis. That places the burden on the employer to prove that the adverse action would have been taken regardless of the employee's military status.

Holding that a transfer to a less secure sales job constitutes an actionable demotion under the Act, the panel parsed the record to find evidence of a motivating factor. It held that the temporal proximity of the transfer (the day he returned to work) was probative evidence of motivation. Moreover, "[a] fact-finder also could infer a discriminatory motivation from [an anonymous] telephone call by Lewis's 'boss' to [Maxfield's commanding officer] Sergeant Grissett inquiring whether Maxfield was present at the military base and whether his presence was 'imperative.'"

Two Cintas executives also paid Maxfield a visit at the base to warn that his sales quota was running into deficit. The court also observed that "Maxfield was suspended the day he returned from the three-day leave and discharged a few days later. Sergeant Grissett testified that, as in 2001, someone from Cintas called him in August 2002 asking whether Maxfield was present for duty and whether his presence was necessary."

The district court erred by placing the burden on Maxfield to prove discrimination. Critically missing, from the employer's side, was a record establishing that Maxfield would have been treated the same notwithstanding his fifteen military leaves over three years. Especially vexing was the scattered and inconsistent record on Cintas' absentee policy. Apparently, the company charged the employee with "stealing" time from the company, despite timekeeping policies that bent and shifted with each explanation. Even and Lewis and Johnson reached opposite conclusions about Maxfield's culpability after investigating the circumstances. Failing to meet its burden in liability, summary judgment for Cintas had to be reversed.

 

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

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