May 2006

| May 18, 2006 | Daily Developments in EEO Law |

Daily Developments in EEO Law
by Paul Mollica (c) 2006

Tuesday, May 30, 2006

I have occasionally goggled here at the arrogance of defense arguments that ignore or tilt at decades’ worth of settled law. In Richardson v. Sugg, No. 04-3049 (8th Cir. May 26, 2006), the University of Arkansas-Fayetteville’s chancellor and his individual co-defendants took at run at subverting Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), which unmistakably held that “we think it clear that there can be no prospective waiver of an employee’s rights under Title VII.” The defendants boldly asserted that Alexander, whatever its relevance to collectively-bargained rights in a union shop, did not apply to a $500,000-a-year basketball coach.

Razorbacks coach Nolan Richardson, who is African-American, was cut after a series of highly public run-ins with the team’s management. He served under a contract providing that “[Richardson] will, and does hereby, release and discharge the University, its officers, trustees and employees from and against any liability of any nature whatsoever related to or arising out of this Agreement and [Richardson’s] termination for convenience of the University hereunder.” The plaintiff sued under Title VII, as well as a First Amendment claim. The case was tried to a judge; the judgment was against Richardson.

Incredibly, the University contended (in a cross-appeal) that the above-quoted contract language prospectively waived Richardson’s rights under the federal anti-discrimination laws. As for Alexander, the defendants maintained that the decision was limited to collective bargaining agreements, and the private individuals (read, in this case, highly-compensated and presumably sophisticated athletic coaches) could agree to waive their Title VII rights in exchange for a big-enough paycheck. The Eighth Circuit pushed back, absolutely not:

“The public policy concerns that inhere in allowing prospective waivers of Title VII rights support the conclusion that such waiver is invalid. First, Congress designed Title VII so that the enforcement of its substantive measures against employers would be effected, at least in substantial part, through private individuals asserting a claim. . . . Allowing an employee to bargain away the right to pursue a prospective discrimination claim frustrates this statutory scheme. Second, allowing employers to ink a deal with an employee to waive prospective claims strikes at the heart of Congress’ aim to deter discriminatory conduct by employers.”

The Eighth Circuit also held that Richardson could not be compelled to tender back money paid under the agreement — or held to have ratified the contract by accepting the money — deducing that judicial endorsement of such contract doctrines to rescue a contract that violates public policy would open a huge loophole. The Court relied largely on the public policy reasoning of Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998), an ADEA case. The court noted an arguable departure with the Seventh Circuit in Fleming v. United States Postal Service AMF O’Hare, 27 F.3d 259 (7th Cir. 1994), which endorsed tender-back and ratification in another Title VII case. The Eighth Circuit noted, nevertheless, that in the Fleming case the release addressed only retrospective, accrued claims, not prospective claims.

The balance of the opinion affirms the judgment against the employee on the merits.

Thursday, May 25, 2006

Apart from sheer coincidence, does anything explain the sudden resurgence in EEO cases involving religious institutions? In the past two years, we’ve seen no fewer than three comprehensive decisions from different circuits charting the scope of the so-called “ministerial exception” said to arise from the First Amendment: Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir. 2004) (harassment claims by minister against pastor fell outside of exception); Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006) (termination claim by church organist fell within exception); Hankins v. Lyght, 438 F.3d 163 (2d Cir. 2006) (ministerial exception to ADEA superceded by Religious Freedom Restoration Act). Elvig and Hankins, which both breeched the constitutional exception, each drew lengthy dissents.

Now the Third Circuit weighs in Petruska v. Gannon University, No. 05-1222 (3d Cir. May 24, 2006), an opinion authored by the late Judge Becker, and again a dissent is filed (by Judge Smith). The Court telegraphs its conclusion at the outset of the majority opinion:

“[W]here a church discriminates for reasons unrelated to religion, we hold that the Constitution does not foreclose Title VII suits. Employment discrimination unconnected to religious belief, religious doctrine, or the internal regulations of a church is simply the exercise of intolerance, not the free exercise of religion that the Constitution protects. Furthermore, in adjudicating suits that do not involve religious rationales for employment action, courts need not consider questions of religious belief, religious doctrine, or internal church regulation, a process that would violate the Establishment Clause by entangling courts in religious affairs.”

The district court originally dismissed the case on the complaint. The plaintiff, appointed chaplain of the University (the first-ever woman in the position), alleged that she began to feel the flames of resentment when she turned in the university president to the provost for having an affair with a female subordinate. She also agitated for changes in the institution’s anti-harassment and discrimination policies. Not long after, the university replaced the plaintiff with a male chaplain, removed her from the president’s staff and reduced her duties. She quit and eventually brought suit under Title VII and state law.

The majority opinion cited and synthesized a generation’s-worth of ministerial exception cases, stretching all the way back to McClure v. Salvation Army, 460 F.2d 553, 555 (5th Cir. 1972), and holds that the Constitution only bars an EEO case where it implicates a religious belief, doctrine or regulation (such as the Roman Catholic male-only clergy). Otherwise,

“[U]nder the Free Exercise Clause the ministerial exception will not bar Title VII claims by ministerial employees when an employment decision is not motivated by religious belief, religious doctrine, or church regulation. This version of the ministerial exception also comports with the Establishment Clause because courts will not be forced to consider religious questions, a process that would entangle the government in religious affairs.”

What would appear to matter under the majority’s formula is how the employee frames her allegations, rather than the kind of defense that a religious institution might advance. In most individual discrimination cases, the employer has an opportunity (either on liability or remedy) to argue that non-discriminatory reason explains the alleged disparate treatment. In the cases of churches and temples, that defense may carry religious significance (e.g., the employee refused to follow church law), which the employee may be called upon to rebut. This places the fact-finder in the position of evaluating the sincerity of the employer’s explanation. The risk of such a confrontation has been deemed sufficient grounds in most circuits for interposing the “ministerial exception.” But the panel majority, siding with the Ninth Circuit’s decision in Elvig, parts company: “although this defense might require limiting discovery or excluding certain evidence, we do not think that this possibility requires us to prophylactically disregard the command of Congress. Such an approach would risk foreclosing perfectly valid claims, thereby ignoring the will of Congress without a justification rooted in the Constitution.”

Judge Smith, in dissent, objects to the majority’s departure from most other circuits: “A church’s choice regarding who will perform its spiritual functions is, by its very nature, a religious decision. By rejecting this basic premise, the majority effectively declines to adopt a ministerial exception, placing this Court at odds with every other federal court of appeals to consider the issue.”

Tuesday, May 23, 2006

The recently-departed Judge Edward Becker had this opinion in typeset when he passed away — Collins v. Alco Parking Corp., No. 05-2802 (3d Cir. May 22, 2006) — presenting a problem that only an appellate judge could love: the scope of plain error in reviewing the liability instructions in an employment discrimination case. The employee was part-time parking attendant fired for supposedly short-changing a guest. The employee had an elegant response to the employer’s legitimate, non-discriminatory explanation for its decision, namely that during the shift in question he would not have come in contact with any customers until after they had already paid. Nevertheless, the jury found in favor of the garage.

Could the jury have been misdirected by the charge? Unfortunately the employee’s counsel failed to clearly object to the critical instructions, and so was deemed to have forfeited an appeal per Fed. R. Civ. P. 51. Resorting to plain-error review, the court found that the instructions “permitted [the jury] to infer discrimination if it found that the defendant’s explanation for its adverse employment action was pretextual,” and that was all that was required. The district court judge used the following vivid example of pretext:

“Suppose one of you came back from lunch late today and you told me that the reason you were late was that you misheard me when I said be back at 1:20 and thought I said be back at 2:20. You would be wrong. I said 1:20, not 2:20, but your explanation that you misunderstood me would not necessarily be unworthy of belief. I could believe you that you misunderstood me, even though you were wrong.

“On the other hand, if you told me that you were late because a flash flood hit Grant Street and you were prevented from getting back to the courthouse by flood waters. Given the fact that it wasn’t raining at lunchtime and the other jurors, they all made it back to the courthouse, and Grant Street is on high ground, your explanation would be so weak, implausible, and inconsistent that it would be unworthy of belief.”

The panel held that this part of the charge did not compel the jury to find that the garage’s explanation was as “preposterous as the hypothetical juror’s flash flood excuse.” Though “admittedly broad,” the charge correctly instructed the jury that it “could but did not have to draw an inference of discrimination if it concluded that the employer’s explanation for firing Collins was not credible.”

The court also found that it was not plain error to instruct the jury that the prevailing employee would win attorney’s fees, holding that “it is at least arguable that a jury tasked with computing damages might, absent information that the Court has discretion to award attorney fees at a later stage, seek to compensate a sympathetic plaintiff for the expense of litigation. Of course, in acknowledging this possibility we do not imply that a fee shifting instruction is proper-only that a well-crafted instruction is not obviously at odds with our prior cases.”

Monday, May 22, 2006

Employers have advanced an argument that an employee terminated as the result of a neutral investigation into misconduct must, virtually by definition, fall into the broad category of “honest belief” that insulates them from liability under anti-discrimination and retaliation statutes. Employers raise the argument even in cases where the employee challenges the fairness or completeness of the investigation. But in Mastro v. PEPCO, No. 05-7044 (D.C. Cir. May 19, 2006) , the panel held (reversing summary judgment) that the employer may have exceeded the outer reaches of this principle.

The employee, a white manager (Mastro), recommended termination of an African-American, probationary employee named Harsley, who missed work for four days while incarcerated in jail. Mastro stated that he only learned about the employee’s incarceration two days into the employee’s absence, while Harsley claimed that he immediately informed the manager of the fact by voice mail. An investigation into the dispute over when Mastro learned Harsley’s whereabouts ultimately led to Mastro himself being fired. The investigator concluded that Mastro had not been straight with management (in the person of Mastro’s boss, Sunil Pancholi).

Finding that the employee met the heightened burden of establishing the “background circumstances” to mount a reverse discrimination claim, the panel went on to find that Mastro established a genuine issue of material fact about pretext. This holding was built from revelations of unfairness and bias in the supposed investigation by David Duarte of HR, including the following:

“First, Duarte interviewed several individuals, but, curiously, not Mastro himself. Admittedly, Mastro was given an opportunity to offer his version of events, but only at a later date when management had already received the results of Duarte’s investigation, putting Mastro on the defensive and depriving him of the same opportunity that was given to Harsley, whom Duarte did interview. For Duarte to have spoken to everyone in the normal course of his investigation except the individual at the center of the controversy-and the only Caucasian-might well strike a jury as odd.

“Second, the investigation Duarte did conduct prior to delivering his findings to management lacked the careful, systematic assessments of credibility one would expect in an inquiry on which an employee’s reputation and livelihood depended. For example, while Duarte and Pepco management appeared to rely heavily on [PEPCO lead man] James Bryant’s statements in concluding that Mastro had been untruthful, a reasonable jury could find Bryant’s credibility questionable. The record reveals that Bryant and Mastro had a strained working relationship and that Bryant, as a second-in-command to Mastro, stood to gain from disciplinary action against his boss. . . .”

“Another puzzling shortcoming of Duarte’s investigation is his admitted failure to ask any of the individuals he interviewed whether they were friends with Harsley or if they had talked to each other about the incident prior to speaking with him, even though Duarte himself acknowledged that the members of Mastro’s team were ‘a pretty close-knit group.’ . . .”

Finally, the panel found that the balance of probabilities made it far more likely that Harsley (the man who had been jailed) had more reason to lie than Mastro (who simply had the misfortune of being Harsley’s supervisor), and yet “Pepco management inexplicably turned a blind eye to the issue of motive.” Thus the fairness or partiality of the investigation, at least in this case, became integral to the race discrimination claim, and Mastro should be allowed a trial on the issue.

Friday, May 19, 2006

I cannot always make this blog live up to its title; sometimes we just have slow weeks. This was one of them. Today, though, the Eighth Circuit issued a decision in Parsons v. Pioneer Seed Hi-Bred Int’l, Inc., No. 05-3496 (8th Cir. May 19, 2006) affirming enforcement of a release in an age discrimination case, over objection (per the Older Workers Benefit Protection Act) that the agreement was no “written in a manner calculated to be understood” by the ordinary employee (29 U.S.C. § 626(f)(1)(A)). The panel, affirming summary judgment for the employer, found that the agreement — though “nuanced” in legal detail — passed the OWBPA bar. More notably, though, the court recognized that the employee’s subjective understanding of the document is not relevant in this inquiry:

“While we agree with the district court that the waiver meets the statutory requirements, we caution against the district court’s reliance on Parsons’ actions or lack thereof, namely that he did not question Pioneer officials about the meaning of the agreement or otherwise put Pioneer on notice that he did not understand that he was waiving his rights under the ADEA. The statutory requirements are minimum standards for creating a voluntary and knowing waiver. Without them, a waiver is not valid as a matter of law, regardless of whether the employee actually understood the waiver or not. The party asserting the validity of the waiver bears the burden of establishing that the agreement itself was written in a manner calculated to be understood. See 29 U.S.C. § 626(f)(3). The employee’s subjective state of mind is irrelevant to this initial inquiry. See Kruchowski v. Weyerhaeuser Co., 423 F.3d 1139, 1142 (10th Cir. 2005) (recognizing the difference between the statutory requirements and the ultimate issue of whether the waiver was knowing and voluntary). Thus, the writing itself must satisfy § 626(f)(1)(A).”

The panel did note that the employee’s subjective understanding may be relevant in the overall assessment of whether the agreement was knowing and voluntary, but did not excuse the employer from technical compliance with the other conditions of the OWBPA.

Wednesday, May 17, 2006

The Pregnancy Discrimination Act does not require reasonable accommodation of pregnant employees, as we are reminded by Tuesday’s decision in Reeves v. Swift Transportation Co., No. 05-5271 (6th Cir. May 16, 2006). The plaintiff, a truck driver, learned she was pregnant three months after arriving on the job. Truck driving at Swift demands lifting, pushing and pulling of loads from 100 to 200 pounds. Her doctor medically restricted her to lifting 20 pounds. When she applied for light duty work for the duration of her pregnancy, she was informed that light duty was — without exception — available only to persons on workers’ compensation leave, meaning that the employee sustained an injury on the job. Employees medically restricted for reasons other than on-the-job injuries were not eligible. Because she could not perform her job, Reeves was fired.

While Reeves challenged the “no-light-duty” policy as a “per se violation” of the Pregnancy Discrimination Act, the panel (affirming summary judgment for the employer) demurred: “Swift’s light-duty policy is indisputably pregnancy-blind. It simply does not grant or deny light work on the basis of pregnancy, childbirth, or related medical conditions. It makes this determination on the nonpregnancy-related basis of whether there has been a work-related injury or condition. Pregnancy-blind policies of course can be tools of discrimination. But challenging them as tools of discrimination requires evidence and inference beyond such policies’ express terms.” (I can only wonder whether Reeves would have been eligible if she had conceived on the job.)

The court cited decisions from the Fifth and Eleventh Circuits supporting this conclusion (Urbano v. Continental Airlines, 138 F.3d 204 (5th Cir. 1998); Spivey v. Beverly Enters., 196 F.3d 1309, 1312-13 (11th Cir. 1999)). When a court cites the authority of those twin sister circuits in an employment case, it is guaranteed not to be good news for the employee.

Monday, May 15, 2006

A razor’s edge problem — posed by a single, though appalling, racial remark in a workplace — sparks a split decision about whether an employee stated a claim for retaliation under Title VII and section 1981, in Jordan v. Alternative Resources Corp., No. 05-1485 (4th Cir. May 12, 2006). Jordan alleged that he heard his co-worker — named Farjah — speak at work while viewing the televised announcement of the apprehension of John Allen Muhammad and Lee Boyd Malvo (who notoriously shot ten victims dead and wounded three others in the Washington, D.C. metropolitan area in 2002).

Farjah’s alleged remark, quoted fully only in the dissent, was that “[t]hey should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them.”

Within a month after Jordan complained to Human Resources about this incident, Jordan himself was fired (as the majority summarized) “because he was ‘disruptive,’ his position ‘had come to an end,’ and management personnel ‘don’t like you and you don’t like them.'”

The majority affirms dismissal of Jordan’s complaint against the employer for failure to state a claim for retaliation under Fed. R. Civ. P. 12(b)(6), without even the benefit of discovery (let alone a trial). The court held that an employee enjoys no protection against retaliation for reporting a racially charged statement, unless he has “a reasonably objective belief that it will continue or will be repeated.” And the court found that the comment, though “unacceptably crude and racist,” was nevertheless “an isolated emotional response directed at the snipers through the television set when Farjah heard the report that they had been arrested.” Given what the majority deemed at most an isolated incident, a reasonably objective belief on Jordan’s part of a hostile work environment was held absent as a matter of law.

Judge King, in dissent, places greater weight on the plaintiff’s unsuccessful attempt to amend the complaint, to add allegations that the same employee (according to co-workers) had a record of making similar remarks about blacks. The dissent laid out the history of black men being compared to apes and other beasts: “Suffice it to say that, in a single breath, Farjah equated African-Americans with ‘black monkeys’ and ‘black apes,’ and implied a savage, bestial sexual predilection acutely insulting to the African-American community. “

The dissent did not assume (as the majority apparently concluded) that the extraordinary circumstances of the remark made it somehow exceptional It instead credited Jordan’s additional amended allegations: “By his Amended Complaint, Jordan has alleged that he ‘immediately reported [Farjah’s] remark to several coworkers,’ and at least two of them advised Jordan ‘that they had heard Farjah make similar offensive comments many times before.’ Amend. Compl. ¶ 10 (emphasis added). That information provided substantial support for Jordan’s reasonable conclusion that there was nothing unique about the ‘black monkeys’ comment.” Under such circumstances, Jordan (by the dissent’s lights) manifested a reasonable and objective belief that the remark her heard was part of hostile work environment.

Judge King also disaffirmed the majority’s legal conclusion that harassing behavior must be likely to continue before a racially offensive incident may form the basis for opposition under the Title VII retaliation section: “requiring an employee to show that a hostile work environment was being planned imagines a fanciful world where bigots announce their intentions to repeatedly belittle racial minorities at the outset, and it ignores the possibility that a hostile work environment could evolve without some specific intention to alter the working conditions of African-Americans through racial harassment.” The dissent concluded: “As a result of today’s decision, employees in this circuit who experience racially harassing conduct are faced with a ‘Catch-22.’ They may report such conduct to their employer at their peril (as Jordan did), or they may remain quiet and work in a racially hostile and degrading work environment with no legal recourse beyond resignation. Of course, the essential purpose of Title VII is to avoid such situations.”

Wednesday, May 10, 2006

It is tempting to devote this entire entry to the Ninth Circuit’s decision in favor of Major League Baseball in Colbern v. Selig, No. 04-55647 (9th Cir. May 9, 2006) , a reverse-discrimination challenge to the MBL pension and medical fund set up for ex-Negro League players (who were formally segregated out of the sport until 1947), into which white former players may not enroll.

In addition to the history lesson, the opinion is worth a read just for the ego-puncturing Foot note number 10:

“Appellees [MLB] are correct when they argue that ‘while assuming the form of benefit plans for the purposes of administration, the payments made by MLB to these former Negro League players to help defray certain of their medical expenses and to furnish them with a modest annual stipend are, in essence, charitable contributions – nothing more, and nothing less.’ Equally correct, however, would be the characterization of the payments as conscience money or guilt payments to make up for years of invidious discrimination on the part of the owners of the Major League ball clubs that historically monopolized America’s favorite pastime.”

I commend the whole opinion, in which (no surprise here) the white players lose their challenge on summary judgment.

Instead, I choose to write about a Family and Medical Leave Act case, Hite v. Vermeer Mfg. Co., No. 05-2297 (8th Cir. May 9, 2006) , in which the employee (a machine operator) won a jury trial and was awarded liquidated damages in a retaliation case. Although benefits cases like FMLare not exactly EEO cases, this one is close enough to be worth a discussion here. One may reconceive of the case as an ADA claim.

The employee (Denise Hite) suffered depressive episodes, and worked out an intermittent leave arrangement with her employer (coming in late, taking occasional days off). She did alright until the company switched managers and placed Rick Leedom in charge of Hite. Leedom seemingly wigged out at what he saw as the untoward casualness of Hite’s arrangement.

“From the beginning of his supervision, Leedom reacted negatively to Hite’s use of FMLA leave. When Hite missed work, Leedom would question whether she was really sick under the FMLA guidelines. Leedom would call Hite into his office and tell her he ‘couldn’t see anything wrong with her’ and therefore she ‘needed to be at work.’ He also said that because of her absences, her production levels would be called into question. In addition, Leedom commented to his assistant that FMLA was ‘bad for the company’ and complained regularly to Martin Van Wyk, Vermeer’s Human Resources Manager, and Montegnabout Hite’s use of FMLA leave.”

The reader can probably anticipate the next steps. Leedom began shifting Hite around, threatened to permanently bar her from one machine unless she stopped taking time off for FMLA leave, charged her with unexcused absences, placed unique restrictions on her vacation time (requiring 30 days notice), refused her bereavement leave to attend her grandfather’s funeral, and generally harassed and disciplined her. Her complaints to company management went unsatisfied until she agreed to go to work at a different job which (not surprisingly) turned out to be too physically demanding for her.

Finally, two months after Hite’s final FMLA leave day, Leedom nabbed her on a supposed, unwritten work rule violation (using her cell phone outside the plant during company time). Despite Hite’s pleas that she had been given permission to do this by Leedom himself (!), she was fired. At trial, two other employees who also tried to use FMLA time complained about Leedom’s harassment. With such a record, it is small wonder that the jury found for Hite (against the employer and Leedom personally). The final award was $107,571 back pay — then doubled for liquidated damages — $15,512.76 front pay and $78,866.50 fees and costs. Tack on the probably costs of defense, and Leedom’s pique cost his employer somewhere around $600,000.

Why does this case fascinate me? I find the intersection of mental disability and the workplace to be one of the most challenging in civil rights. Mental disability stereotypes have endured, long after racial and sex stereotypes became unfit for polite society. Such employees are often labeled as “bitchy,” “malingering,” or just “crazy,” as if they have no place in employment and ought to be shuttled off to a reservation somewhere. So too with Leedom’s remark that he himself “couldn’t see anything wrong with her.” Yeah, well that’s the nature of mental disabilities — invisible to the naked eye. But even though Hite had a medical certification for her FMLA leave, the boss was unimpressed. He as likely as not aggravated her condition by deliberately assigning her too-hard work and harassing her ceaselessly about resorting to her legal rights. Regrettably, the FMLA statute provides no compensatory damages, or the final verdict would have likely been higher still.

The jury system can still be counted to deliver in cases like this, but a manager’s rash cruelty ought to be squelched at the get-go, by HR, and not turned over to the civil justice system.

Tuesday, May 9, 2006

The Eighth Circuit has proven remarkably tolerant of ribald (and worse) behavior in the workplace, leading to such decisions as Pedroza v. Cintas Corporation No. 2 d/b/a Cintas Corporation, 397 F.3d 1063 (8th Cir. 2005) (harassing actions allegedly involved physical grabbing, kissing and statement that co-worker “wanted” plaintiff) and LeGrand v. Area Resources for Community & Human Services, 394 F.3d 1098 (8th Cir. 2005) (employee allegedly was pawed twice, invited to watch porn videos and masterbate, grabbed in the crotch and forcibly kissed in the mouth) (my Jan. 21, 2005 entry).

And now we have Nitsche v. CEO of Osage Valley Electric Cooperative, No. 05-2208 (8th Cir. May. 8, 2006), in which an employee is regularly subjected to pictures of nude women, often told to go get a Pap smear, located snakes and mice in a lunch box, forced to hear to jokes about genitalia (men’s and women’s) and constantly embarassed in front of co-workers — all by a single foreman who never performed the same activities in front of members of the other sex. In spite of a twenty-year history of this kind of behavior, the Eighth Circuit affirms summary judgment on the ground that the behavior was neither severe nor pervasive enough to constitute harassment. I dunno — I think, given all of this, that the issue could have meaningfully been tried to a jury. (What ties these cases together, for possible exploration by the curious, is that each involved a claim of same-sex harassment and none involved a supervisor.)

Monday, May 8, 2006

A nearly 90% cut in a lodestar fee, following a trial and eventual settlement of the claim, will get a plaintiff’s attorney’s attention. An appellate affirmance of the same ruling commands the entire plaintiff’s bar’s attention.

In Saizan v. Delta Concrete Products Co., Inc., No. 05-30375 (5th Cir. May 5, 2006), a three-plaintiff FLSA case, a dispute arose about the correct method to calculate back pay, the difference amounting to $15,619 (if the employer was right) and $156,000 (if the employees were right). The judge ruled in favor of the employer on this issue. A trial commenced but the jury failed to reach a verdict on liability. The judge then granted judgment as a matter of law to the employer on willfulness, barring recovery of liquidated (double) damages. Before a second trial began, the parties settled for $20,000, plus fees and costs. The attorneys petitioned for fees under 29 U.S.C. § 216(b) of $114,000, but the district court awarded only $13,000.

On appeal, the Fifth Circuit (in a per curiam opinion) affirmed the award, finding no abuse of discretion. Part of the dispute was over ordinary issues of records-keeping (citing minimal evidence of billing judgment) and the plaintiffs obtaining only some relief (e.g., losing the back pay and liquidated damage issues).

But the panel also cited the gap between the employees’ original prayer for relief in the complaint and the eventual recovery as yet another reason to cut the lodestar. “Due to Plaintiffs’ lack of success on the merits, the District Court reduced the award of attorney’s fees in proportion to the difference between the initial prayer and the ultimate settlement amount.” This is an arbitrary and counterintuitive basis for carving fees (if the lawyer lowballs the number in the complaint, does he/she get more in fees later?). But I find myself baffled that a lawyer would put a number in a federal complaint in the first place. It is not required and, as we can see in this case, may be used defensively against a fee petition. The bar is so warned.

Friday, May 5, 2006

Let’s end the week with two cases against the federal government.

A civilian employee of the Navy (Howard) challenges sex harassment by a male staff member (McCall) who, over sixteen month’s time (according to the summary judgment record), often spoke to her “in a sexually provocative manner”; grabbed her face, breasts and rear; and (in the most heinous act reported) penetrated her with his finger. This final act prompted Ms. Howard to make a verbal complaint in March 1996. But the harasser continued to grab and verbally harass Ms. Howard for an additional eight months after complaint. Finally, in November 1996, the plaintiff (through a co-worker) forwarded her written complaint to a different supervisor, who set the wheels in motion for the harasser’s forced transfer away from Ms. Howard. That, evidently, ended the harassment.

The Fourth Circuit affirms summary judgment on the pre-March 1996 period, but finds a genuine issue of material fact on the March to November 1996 harassment, in Howard v. Winter, No. 05-1258 (4th Cir. May 4, 2006). The threshold question presented was whether, for purposes of vicarious liability under Faragher/Ellerth, the staff member was a “supervisor.” The Fourth Circuit (true to form) adopts the most conservative standard available to answer this question, the one deployed in the Seventh Circuit — that a supervisor must be an individual with the capacity to take “tangible employment actions” against the plaintiff. So holding, the court determines that the harasser had only “occasional authority . . . to direct her operational duties,” and that such “minimal” authority did not “enable” his harassment.

Treating the case as a co-worker situation, the court then holds that harassment that predated the first complaint (including the penetration) was not actionable. The Navy, the panel held, maintained an adequate anti-harassment policy. Even though the Navy previously knew that McCall tacked pin-ups to his workspace walls (and counseled him not to do it), and that he used offensive language, that did not put the Navy on notice supposedly of his more egregious conduct. But Ms. Howard’s verbal notice in November 1995 to a senior member of human resources (named Pendleton) should have done the trick, the panel holds. The panel expresses something akin to astonishment at the Navy’s lack of a response:

“According to Howard’s deposition, Pendleton responded by simply telling Howard to write McCall a letter and keep track of any future harassing behavior, making sure to report any further instances to him or to one of Howard’s supervisors. He did not get to the bottom of her allegations. There is nothing in the record suggesting that he asked to see the letter or attempted to learn the specifics of Howard’s allegations. There is nothing to suggest that he spoke with McCall or others about Howard’s problem, nor is there anything to suggest an inquiry, much less an investigation of any kind. In short, Howard alleges that Pendleton’s only response to her statement that McCall put his hands on her and that she did not like the touching was for her to write McCall a letter and notify someone if McCall ‘harasses [her] again.'” [Foot note omitted.]

In Spinelli v. Goss, No. 05-5270 (D.C. Cir. May 5, 2006), the court (on interlocutory appeal) orders dismissal of a Rehabilitation Act claim by a former CIA employee. While the opinion doesn’t tell us exactly what Mr. Spinelli did for the Agency, we learn that he was shot in the line of duty and suffered from PTSD thereafter. He made claim under both under the federal government’s workers’ compensation program (FECA) and the Rehabilitation Act. (Again, the opinion doesn’t reveal the precise basis of the latter claim, but perhaps it had to do with his retirement.) The district court denied a motion to dismiss but allowed an interlocutory appeal (and yet again, we are not informed of the exact nature of the questions certified for appeal). The court of appeals reverses on both claims. The FECA claim drops out because there is no judicial review allowed of FECA denials. And the Rehabilitation Act claim fails — not for an interesting reason (national security), but for the banal reason that the employee failed to exhaust administrative remedies. The court of appeals refuses to interpolate a “futility” exception into the exhaustion rules.

Thursday, May 4, 2006

The Tenth Circuit becomes, I believe, the first in the country to declare that Title VII does not guarantee a right to effective assistance of counsel, in Nelson v. Boeing Co., No. 05-3156 (10th Cir. May 6, 2006). Nelson, who succumbed to summary judgment in the district court, argued on appeal that his privately-retrained counsel owed him a statutory duty of due case under 42 U.S.C. § 2000e-5(f)(1), which provides that “Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security.”

Though recognizing the Sixth Amendment right to counsel in criminal cases (and the due process right to counsel in immigration proceedings), the court holds that no corresponding right to competent representation attaches under this section of Title VII. Writes Judge McConnell: “It does not disparage the importance of rights protected by Title VII to recognize that the consequences of bad lawyering in a Title VII case are less grave than wrongful incarceration or deportation. Moreover, a Title VII plaintiff who loses because his attorney’s performance was deficient can file a legal malpractice lawsuit to recoup the damages he would have been awarded in the Title VII case, including damages to compensate him for the loss of equitable relief such as reinstatement.”

Wednesday, May 3, 2006

Two plaintiffs obtain a trial on their claim that a fire department’s racial affirmative action plan trenched on their right to a promotion: Kohlbek v. City of Omaha, No. 04-2060 (8th Cir. May 1, 2006). John Kohlbek contends that he was by-passed for promotion to battalion chief by a minority candidate one spot below him on the eligibility list. Michael Pritchard claims that two black candidates leapfrogged over him for promotions to department captain.

The Eighth Circuit — reversing summary judgment for the city — held that the two firefighters made out a triable issue of fact about whether the affirmative action plan violated Equal Protection. The possible flaw in the plan, holds the court, is the use of racial classifications even for those titles where there was no history of past discrimination. Omaha used a rubric for underutilization of minorities — the half person rule — that “determines that any time the actual number of minorities in a particular position is not within half of a person of the goal, an underutilization exists.” The panel holds that:

“The half person rule, on the other hand, does not require a statistically significant showing of discrimination before racial classifications are triggered. As Omaha’s expert testified, the half person rule triggers racial classifications in more situations than if a test of statistical significance were used to determine whether racial discrimination has occurred [sic.] . . . . Thus, by using the half person rule, Omaha, under the auspices of the 2002 Plan, made racial classifications in its promotional decisions that went beyond its interest in remedying identifiable racial discrimination.” (Record cite and Foot note omitted.)

Because the half person rule did not require a proof of even a statistically-significant difference in racial compositions of the officer ranks (and statistics revealed that no such disparity existed in the fire captain and battalion chief ranks, and no shortfall had existed in some 14 years), the court held that there was no evidence of narrow tailoring to cure past discrimination. The case was remanded to the district court to consider the city’s further defense of its compelling interest to promote a diverse workforce.

Tuesday, May 2, 2006

The EEOC reported in February that religious discrimination charges remain level at some 3% per year of total charges filed, placing it perennially second-to-last (right ahead of Equal Pay Act charges) in the categories of claims investigated by the Commission. They make up an equivalent percentage (anecdotally) of published employment discrimination decisions in the U.S. Courts of Appeals. And very often they look like this one: Berry v. Dep’t of Social Services, No. 04-15566 (9th Cir. May 1, 2006) .

The employee, who worked for a county agency, complained of three restrictions. First, he wanted to be able to talk scripture and pray with his clients (unemployed adults transitioning out of welfare programs). The agency responded with a ” a counseling memorandum instructing him to ‘adhere to the Department’s policy about absolute avoidance of religious communications with participants and/or other persons (such as Child Care Providers) that you have contact with as part of your employment.” Talking to his family (over the phone) and colleagues about religion was okay, though. Second, he was also allowed to organize prayer groups to meet at lunch in the break room or out-of-doors, but not in the county Red Bluff conference room, which the agency wanted to preserve as a non-public forum. Finally, the employee received a memo stating that “You may not display religious items in an area where those items are visible to any applicant, recipient, or participant under or within any program administered by the Department of Social Services.”

Feeling that the agency’s limitations abraded his constitutional and Title VII rights against exercising his religion, Mr. Berry sued for putative First Amendment and Title VII violations. The district court granted summary judgment across the board, and the Ninth Circuit affirmed. The Court found that the agency had an interest in projecting religious neutrality, and that its policy judgments were appropriately tailored to that objective:

“While it allowed employees to discuss religion among themselves, it avoided the shoals of the Establishment Clause by forbidding them from discussing religion with its clients. Similarly, the Department allowed employees to display religious items, except where their viewing by the Department’s clients might imply endorsement thus evading the reef of the Establishment Clause. The Department did not prohibits employees from holding prayer meetings in the common break room or outside, but declined to open the Red Bluff Room to employee social or religious meetings as such use might convert the conference room into a public forum. We conclude that these restrictions were reasonable and the Department’s reasons for imposing them outweigh any resulting curtailment of Mr. Berry’s rights under the First Amendment of the United States Constitution or Title VII of the Civil Rights Act of 1964.”

Monday, May 1, 2006

Two circuits address legal questions — issues of first impression (for those courts, anyway) — under three widely-litigated statutes.

Question One: May a non-Indian employee disadvantaged by a tribal hiring preference at an Indian casino sue the private company that manages the enterprise for the tribe? No, holds Tashenko v. Harrah’s NC Casino Co., No. 05-1256 (4th Cir. Apr. 27, 2006). Title VII expressly insulates tribal preferences from challenge; § 1981 does not. Yet the Fourth Circuit (following a prior Ninth Circuit decision) holds that in a § 1981 suit challenging such preferences, the tribe itself is (a) an indispensible party under Fed. R. Civ. 19, and (2) swathed in sovereign immunity, so the case must come to a grinding halt. The same opinion also held, along with a number of circuits, that an employee does not enjoy an unfettered right to return to a job under the FMLA, if the employer shows that the employee would have been terminated anyway (such as, due to job elimination).

Question Two: Is it discrimination “because of . . . sex,” within the meaning of Title VII, for a manager to terminate an employee with whom he has had an affair to make peace with his spouse? Tenge v. Phillips Modern Ag Co., No. 05-2803 (8th Cir. Apr. 28, 2006), holds “no” (as have some half-dozen other circuits). Also termed “sexual favoritism” discrimination, it falls outside the Title VII prohibition — at least where the sexual relationship was consensual and not inflected with harassment — because such motivation, by definition, is widely understood to constitute a reason other than “sex” (read as gender, rather than sexual behavior).



Daily Developments in EEO Law
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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)


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