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June 2006

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

Friday, June 30, 2006

The Seventh Circuit, per Judge Richard Posner, takes the opportunity in a modest Title VII case (too modest, apparently, even to warrant a discussion of the facts) to clear away the shibboleth that pretext may be established "by proof that the stated reason was 'insufficient to motivate' the action." Forrester v. Rauland -Borg Corp,, No 05-4650 (7th Cir. June 29, 2006) . There, the court wrote (affirming summary judgment):

"It [the 'insufficient to motivate' prong] adds nothing to the analysis of pretext but confusion. If the stated reason for the challenged action did not motivate the action, then it was indeed pretextual. If it was insufficient to motivate the action, either this means that it didn't motivate it, or that it shouldn't have motivated it. If the first is the intended sense, the dictum is just a murky way of saying that the stated reason was not the real reason. If the second sense is the one intended, then the dictum is wrong because the question is never whether the employer was mistaken, cruel, unethical, out of his head, or downright irrational in taking the action for the stated reason, but simply whether the stated reason was his reason: not a good reason, but the true reason."

Thursday, June 29, 2006

A couple of interesting decisions in the U.S. Courts of Appeals in my absence --

The Seventh Circuit reversed and remanded summary judgment in a Title VII/ADEA case against a union, with a special admonition against the use of Rule 56. Indiana Regional Councill of Carpenters & Millwrights, No. 05-3913 (7th Cir. June 28, 2006) . The issue presented was whether the union's failure to place the employee on an "out-of-work" list was motivated by discrimination or (as the union argued) simply that plaintiff had never asked to placed on the list to begin with. Stuck with its original explanation, the union was compelled to rebut not only the employee's own testimony (that she did, in fact, ask to placed on the list), but phone records showing several calls that she placed to the union office. The union challenged the phone record entries, arguing that "all but the last call were very short, one of them lasting, according to her own records, for only 50 seconds, which, the union argues, is too short for her to have asked to be put on the list. That is obviously wrong, and though it might persuade a gullible juror, it cannot eliminate a triable issue."

The court also credited the plaintiff's own testimony about placing the calls:

"Oral testimony if admissible will normally suffice to establish a genuine issue of material fact, though the qualification 'if admissible' is important, particularly in discrimination cases; a plaintiff cannot get to the jury merely by testifying that she thought the employer or other alleged discriminator had a discriminatory purpose. . . . Plaintiffs cannot qualify as mind readers. But a plaintiff can testify, as the plaintiff in this case did, that she made a phone call and said thus-and-so in the ensuing conversation, or left a message on an answering machine (the union had an answering machine) that said thus-and-so. That is testimony to a statement she made, not, as the union would have it, testimony "to her own subjective beliefs of discriminatory conduct."

The Third Circuit has also elected to vacate and rehear Petruska v. Gannon University, No. 05-1222 (3d Cir. May 24, 2006) (authored by the late Judge Edward Becker), the decision rejecting a broad ministerial exception to EEO laws and holding that "[e]mployment 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." (See my May 25, 2006 post on this case.) Oddly, the court elected not to rehear the matter en banc, but to return it to the original panel. See Petruska v. Gannon University, No. 05-1222 (3d Cir. June 20, 2006). But with Judge Becker's death, and the subsequent recusal of Judge Richard L. Nygaard, the two original majority judges will not be on the rehearing panel. Instead Judges Morton I. Greenberg and Judge Robert E. Cowen will join Judge D. Brooks Smith (the dissenter on the original panel).

This site will be on hiatus from June 14 till June 29, 2006

Monday, June 12, 2006

For women who have been promoted to supervisory duties, only to find there are not taken as seriously as their male predecessors (or even their male subordinates), take a look at Demoret v. Zegarelli, No. 05-1831 (2d Cir. June 7, 2006) (available at the Second Circuit website). The case arose in the Second Circuit as an interlocutory appeal of several qualified immunity rulings.

One of the two plaintiffs -- a recreational supervisor -- pointed to a sting of incidents where the village administrator belittled and demeaned women.

"She declares that Douglas spoke to her in a condescending manner and did not extend social pleasantries, such as saying hello or good morning, that he offered to male colleagues. On one occasion at a Village function, [Administrator] Douglas commented to her in front of two other town employees that she looked nice 'and that [she] should dress that way more often, because when [she] wear[s] a sweatsuit [her] IQ must drop 20 points.' Also, according to Pell, Douglas accused her of being insubordinate when she expressed disagreement with him. Pell contends that the Administrator used a different tone of voice to speak to her than the one he used to speak to male colleagues at the department head meetings. When Pell complained to him that he did not treat her the same as male department heads, Douglas accused her of being 'too emotional.'"

The plaintiff also pointed to situations where she was simply not taken seriously as the head of her department. In addition to undercompensation (for instance, the plaintiff did not receive stipends routinely extended to men), "Pell points to [Administrator] Douglas's reviewing assignments with her in a detailed manner and giving her lists of tasks to complete. She also contends that the Administrator scrutinized her department's budget and expenditures more than he examined the budgets of other departments that were run by male department heads." The evidence showed that the plaintiff earned less even than her male subordinates.

Although the allegations above were deemed insufficient as a matter of law to amount to a hostile work environment, reconsidered as evidence of a straight disparate treatment claim, the court on appeal held that the employee presented a genuine issue of material fact on pretext. "These actions must be seen in the context of Douglas's micromanaging and offensive comments and [Mayor] Zegarelli's failure to respond to her expressed concerns. As discussed above, although the treatment complained about by plaintiffs does not rise to the level of a hostile work environment, it does support Pell's claim of disparate treatment on the basis of gender."

Friday, June 9, 2006

A core challenge to the reach of the federal constitution's free exercise clause arises in this section 1983 employment case by a police officer against his superiors: Shrum v. City of Coweta, No. 04-7037 (10th Cir. June 8, 2006) .

Officer Shrum had prevailed upon the city police department for eight years to schedule his shifts around his duties as pastor to the Coweta Church of Christ. After a career unblemished by disciplinary actions, Officer Shrum suddenly suffered a reprimand suspension for allegedly turning in late time sheets. He successfully arbitrated these actions. Then he and a cooperating witness in the arbitration were ordered into "remedial training" (which an arbitrator later found to be retaliatory), and Officer Shrum was shifted to day shifts "so that he could be monitored," even though this conflicted with his Sunday duties at church. Officer Shrum resigned over what he took as religious harassment and brough suit against his superiors and the city.

The district court, though it dismissed a number of Officer Shrum's claims, declined to grant qualified immunity on the freedom of association, free exercise and substantive due process counts. On interlocutory appeal by the defendants, the city challenged the free exercise claim on two grounds -- that the free exercise clause by its terms applies only to legislative, not executive, acts; and that even if the First Amendment applied to executive action, the claimant must prove religious animus by the defendant.

In a close analysis addressing the framers' debates and subsequent scholarship, Judge McConnell rejects both arguments. Regarding the application of the First Amendment to law enforcement, the opinion holds:

"[I]f the First Amendment forbids the making of 'law' that infringes the free exercise of religion, and the Due Process Clause forbids the executive from taking away liberties except pursuant to 'law,' it follows that the First Amendment protects against executive as well as legislative abridgement. Indeed, because executive action that bears upon the private rights of individuals is almost always grounded in some statutory authority, a challenge to the executive action may be characterized as an as-applied challenge to the statute. . . . In substance, Officer Shrum's challenge to the executive actions of Chief Palmer is a constitutional challenge to the statutory grant of power to the Chief of Police to supervise employees, as applied in the circumstances of this case."

Judge McConnell also disapproves the suggestion that a plaintiff must prove religious animus under a free exercise claim:

"True to [its] history, the Free Exercise Clause has been applied numerous times when government officials interfered with religious exercise not out of hostility or prejudice, but for secular reasons, such as saving money, promoting education, obtaining jurors, facilitating traffic law enforcement, maintaining morale on the police force, or protecting job opportunities. Proof of hostility or discriminatory motivation may be sufficient to prove that a challenged governmental action is not neutral, but the Free Exercise Clause is not confined to actions based on animus."

In a brief concurring opinion, Judge Briscoe hints slyly that Judge McConnell might have been reaching out to address an issue (religious liberty) which was his specialty in his former career, as professor of constitutional law at Brigham Young University school of Law. "Chief Palmer devotes a mere paragraph to his textual argument, without citation to any legal authority other than the text of the First Amendment. Shrum's brief does not even respond to the argument. In my view, it is sufficient to note, as the majority has, that the Supreme Court has assumed on several occasions that the free exercise clause is not as restricted as Chief Palmer suggests here."

Thursday, June 8, 2006

If a Catholic school teacher signs a pro-choice petition for publication in a state-wide newspaper, and the school fires her after she refuses an opportunity to recant, does the teacher have any legal recourse under Title VII (or its Pennsylvania state law equivalent)? No, holds the Third Circuit in Curay-Cramer v. Ursuline Academy, No. 04-4628 (3d Cir. June 7, 2006) , affirming dismissal of the complaint for failure to state a claim under both a retaliation and discrimination theory.

The school demanded an explanation from the teacher for her public support of abortion rights, but "Curay-Cramer asserted her right to protest without retribution the school's stance on abortion." In a follow-up meeting the next week, the school announced that it had decided to fire her, but gave her a chance to recant her support of the ad if she wanted to keep her job. She refused the offer and the school carried out the termination.

The retaliation theory fell out because the teacher failed to identify any employment practice that she sought to challenge as violative of Title VII. The ad was purely supportive of abortion rights on the thirtieth anniversary of Roe v. Wade. "This language cannot be construed as opposition to Ursuline's alleged policy and practice of terminating women who have or contemplate abortions. The advertisement did not mention gender discrimination, pregnancy discrimination, or employment practices. It did not mention Ursuline or any other schools or employers. To turn pro-choice advocacy, unconnected to employment practices, into conduct protected by Title VII would inappropriately stretch the concept of protected activity."

Moreover, the panel found that the discrimination claim -- based on the school's alleged failure to terminate male staff who advocated private political views, such as about the war in Iraq, or who were not Catholic -- failed because it would demand judicial inquiry about whether other views expressed privately by faculty conflicted with religious doctrine. "We conclude that if we were to consider whether being Jewish or opposing the war in Iraq is as serious a challenge to Church doctrine as is promoting a woman's right to abortion, we would infringe upon the First Amendment Religion clauses. . . .Were we, however, to require Ursuline to treat Jewish males or males who oppose the war in Iraq the same as a Catholic female who publicly advocates pro-choice positions, we would be meddling in matters related to a religious organization's ability to define the parameters of what constitutes orthodoxy."

Evidently, there was no need to consider the applicability of the newly-reconsidered "ministerial exception" and (in particular) Petruska v. Gannon University, No. 05-1222 (3d Cir. May 24, 2006) (authored by the Late Judge Becker, who also appeared in the panel for this case). (See my May 25, 2006 post on this case.) Petruska, though decided just two weeks ago, and taking a narrower view of the church's immunity under the First Amendment, was nevertheless cited nowhere in this opinion.

Wednesday, June 7, 2006

In the thick of the immigration debate, here's a nice decision to remind us what life is like even for those citizens of the U.S. who are merely perceived to be here illegally. Zamora v. Elite Logistics, Inc., No. 04-3205 (10th Cir. June 5, 2006). Zamora, at the time he was hired, was a citizen of Mexico. He obtained employment using his alien registration card, a social security card and an executed I-9. Responding to a threatened audit by the INS (now part of the Department of Homeland Security), the employer ordered two firms to check the social security numbers of all 650 employees. Thirty-five anomalies emerged, including plaintiff, and 31 of those employees apparently quit.

Months into the investigation, the employer approached Zamorand warned that he could lose his job unless (in ten days' time) he could produce evidence of his legal status. By this time, the employee had become a naturalized citizen and tendered his naturalization certificate and report of earnings from Social Security. But because the SSA report listed a different birthday than the one Zamora originally furnished, the personnel director Larry Tucker refused to accept it.

Even when the employee returned the following day with an office-stamped copy of a Social Security document with his number affixed, Tucker demanded that his secretary verify the information with SS and suspended Zamora until then. The secretary did verify the information. When Zamora returned to work, he demanded that Tucker apologize for doubting him in the first place. According to the opinion, "Plaintiff testified that Tucker grabbed the letter and told him he was fired because Tucker would not apologize and did not have to explain." Even Tucker admitted in his deposition that he might have told Zamora to "just get the hell out."

The employee sued under Title VII both for the wrongful suspension and termination.

Although the district court granted summary judgment, finding no evidence of national origin discrimination, the panel majority reversed. The court found using the indirect method of proof that the employee established a prima facie case both for the suspension and ultimate separation from employment. A jury could find the employer's account pretextual:

"Here, plaintiff Zamora had at all times been legally in the country and authorized to work. He had established this when he was hired a mere nine months before he was asked to provide further documentation. Moreover, taking the evidence in the light most favorable to plaintiff, it was on May 22, the day of his suspension, that he produced his naturalization certificate, which should have, or at least a jury could conclude that it should have, permanently erased any doubts about his eligibility and any fears of employer liability under IRCA. But Mr. Tucker rejected the document, insisting that he wanted to see 'social security papers or another SSN.'"

Although the employer argued that it was compelled to insist on proper documentation, on pain of civil penalties, a jury could conclude that there were biased or mixed motives at work: "After waiting six months from the time it first became concerned about its need to comply with IRCA, the employer suspended Zamora, who had provided valid and authentic documents less than one year previously, after giving him only ten days' notice, because of a report which indicated that someone else had used his social security number." Thus, "A jury could conclude that Mr. Tucker jumped to the conclusion that Zamora had used a social security number illegally, despite the lack of any strong evidence that he had, and had apparently never considered the possibility that Zamora was instead a victim of the misuse of his social security number by another." Finally, "plaintiff testified that Tucker had been rude to him during their conversations. Although we recognize that Title VII was not intended to be a vehicle for enforcement of proper decorum, and therefore that rudeness is not per se actionable - i.e., it is not an adverse employment action - it still may be regarded as relevant by a rational jury trying to determine the employer's motivation." [Foot note omitted.]

One judge concurred with a brief opinion placing significant weight on the "just get the hell out" comment. A third judge concurred on the suspension claim, but would have affirmed on the dismissal claim on the ground that Zamora was fired for demanding an apology, rather than because of national origin.

Tuesday, June 6, 2006

A week has passed and not a single new, published EEO appellate decision to report out. Fortunately. a valued colleague sent me a link to a fresh guidance by the EEOC on the Americans with Disabilities Act, "REASONABLE ACCOMMODATIONS FOR ATTORNEYS WITH DISABILITIES" (May 23, 2006) . Most of the Commission's advice for law firms would apply to any kind of employment situation, regardless of the profession (providing signers for the deaf, ramps for wheelchairs, etc.). But the authors grasped the special arrogance of law-firm life, including hypercompetitiveness and a failure to own up to frailty (your own or your colleagues').

A few highlights:

The EEOC cautions that the following behavior might violate the ADA: An attorney with low processing speed "requests that he be permitted to have a secretary transcribe his recordings. This accommodation enabled him to work successfully at his prior firm. Juan's supervisor, a partner, denies the request, telling Juan that, 'in a law firm these days, a competent lawyer has to be able to draft his own documents, not dictate them to someone else.'"

It warns that "[s]ome employers may not appear open to receiving requests for reasonable accommodation, and some lawyers with disabilities may be reluctant to ask for accommodation because they are concerned that the employer will perceive them as less competent - even when the employer has done nothing to suggest that it has such a perception."

In querying an lawyer or her physician about the possible need for an accommodation, the EEOC suggests that it is "unproductive" to ask "Does Jane Doe's condition substantially limit a major life activity?"

The EEOC suggests that for some disabilities (presumably mental or emotional ones), a reasonable accommodation may include "changing the methods of supervision (e.g. , supervising partner provides associate with critiques of his work through e-mail rather than face-to-face meetings)."

Finally, in a not-so-obvious aside, EEOC advises that equal access to the "benefits and privileges of employment" under the ADA may include such cultural activities as the ubiquitous "parties to celebrate retirements and birthdays, company retreats, and outings to restaurants, sporting events, or other entertainment activities."

 

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Daily Developments in EEO Law
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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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Newberry v. Burlington Basket Co., No. 09-3082 (8th Cir. Sept. 28, 2010)

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