September 2006

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

Daily Developments in EEO Law
by Paul Mollica © 2006

Friday, September 29, 2006

People for the American Way want you to know that Bush II judicial appointees have been, by in large, been bad for civil rights. Its new report, Confirmed Judges, Confirmed Fears, chronicles the numerous cases in which recently-appointed U.S. Courts of Appeals have voted in favor of government and business in a variety of litigation settings , including in employment discrimination cases.

I will not challenge the (intuitive) hypothesis that judicial appointees from this administration have been (on average) less inclined to rule in favor of civil rights plaintiffs than other judges, although this could certainly be tested empirically by comparing the votes of non-Bush versus Bush appointees (something that PFAW has not attempted here). But its evaluation of judges in light of their supposedly least hospitable decisions strikes me (even as an employee advocate) as reaching for a predestined conclusion.

In the interest of balance, let us give some of the same judges credit for their more progressive employment decisions during the same time period studied, September 2004 – May 2006 (and here, I cite only opinions authored by these jurists, not simply those opinions joined, as in the PFAW report).

In the D.C. Circuit, Judge Brown would have to get credit for Mastro v. PEPCO , 447 F.3d 843, 98 FEP 193 (D.C. Cir. 2006) (reversing summary judgment in a race discrimination case); Holcomb v. Powell , 433 F.3d 899, 97 FEP 287 (D.C. Cir. 2006) (reversing summary judgment in a Title VII retaliation case).

In the First Circuit, Judge Howard would get credit for McDonough v. City of Quincy , 452 F.3d 8, 98 FEP 481 (1st Cir. 2006) (affirming a judgment for plaintiff in a Title VII retaliation case and remanding it for an award of punitive damages); Quiles-Quiles v. Henderson, 439 F.3d 1, 17 AD Cases 1089 (1st Cir. 2006) (reversing entry of judgment as a matter of law for an employer in a Rehabilitation Act case, ordering entry of jury verdict); Rodriguez-Torres v. Caribbean Forms Mfg., Inc., 399 F.3d 52, 95 FEP 353 (1st Cir. 2005) (affirming a jury verdict for a Title VII sex discrimination case).

In the Second Circuit, Judge Raggi gets redeemed by Cross v. New York City Transit Authority, 417 F.3d 24, 96 FEP 239 (2d Cir. 2005) (affirming a jury verdict in an age discrimination case). Judge B.D. Parker reversed a denial of attorney fees for a civil rights lawyer in Reiter v. MTA New York City Transit Auth., No. 04-5420 (2d Cir. July 20, 2006). And Judge Wesley took the extraordinary step of tossing out a bench verdict for an employer in race disparate impact case in Gulino v. Board of Education of the N.Y.C. Sch. Dist., 460 F.3d 361 (2d Cir. 2006), and sending it back for a new trial.

In the Sixth Circuit, Judge Gibbons gets appreciated for Randolph v. Ohio Dep’t of Youth Services, 453 F.3d 724, 98 FEP 705 (6th Cir. 2006) (reversing summary judgment in a sex harassment case). Judge Rogers gets credit for McClain v. Northwest Community Corrections Center Judicial Corrections Bd., 440 F.3d 320, 97 FEP 1148 (6th Cir. 2006) (reversing summary judgment in a Title VII race harassment, pay and retaliation case). Judge McKeague get special-extra-credit for affirming a jury verdict in a contentious Title VII case for a pre-operative transsexual police cadet in Barnes v. City of Cincinnati, 401 F.3d 729, 95 FEP 994 (6th Cir. 2005).

In my Seventh Circuit, Judge Sykes gets a check-off for Davis v. Wisconsin Dep’t of Corrections, 445 F.3d 971, 97 FEP 1673 (7th Cir. 2006) (affirming a jury verdict in a Title VII race discrimination case involving discriminatory discipline).

In the Eighth Circuit, Judge Melloy gets credit for Jeffery v. Kansas City Southern Ry., 456 F.3d 841, 98 FEP 929 (8th Cir. 2006) (affirming a jury verdict in a race harassment case); and Wallace v. DTG Operations, Inc., 442 F.3d 1112, 97 FEP 1292 (8th Cir. 2006) (reversing summary judgment in a Title VII retaliation case). Judge Benton gets a pass for McClure v. Career Systems Development Corp., 447 F.3d 1133, 98 FEP 119 (8th Cir. 2006) (reversing summary judgment in a § 1981 retaliation case); and Ledbetter v. Alltel Corporate Services, 437 F.3d 717 (8th Cir. 2006) (affirming a bench verdict in a race discrimination case). Judge Riley gets a plus for Canny v. Dr. Pepper/Seven Up Bottling Group, Inc., 439 F.3d 894, 17 A.D. Cases 1153 (8th Cir. 2006) (affirming a jury verdict in an ADA case). Judge Gruender gets a vote for Eliserio v. United Steelworkers of America, 398 F.3d 1071, 95 FEP 421 (8th Cir. 2005) (reversing summary judgment in a race harassment case).

In the Ninth Circuit, Judge Callahan wrote Porter v. California Dept. of Corrections, 419 F.3d 885 (9th Cir. 2005) (reversing summary judgment in a Title VII sex harassment and retaliation case), and Judge Bybee authored Obrey v. Johnson, 400 F.3d 691, 95 FEP 531 (9th Cir. 2005) (discrimination against Pacific Islanders).

And in the Tenth Circuit, Judge McConnell wrote good decisions in Shrum v. City of Coweta, 449 F.3d 1132, 98 FEP 499 (10th Cir. 2006) (a free exercise case in which qualified immunity was denied), and EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 98 FEP 571 (10th Cir. 2006) (reversing summary judgment in a Title VII race case). And Judge Hartz wrote Wittington v. The Nordam Group Inc., 429 F.3d 986, 96 FEP 1729 (10th Cir. 2005) (affirming a jury verdict in an age discrimination case).

Thus in the space of an hour, I was able to canvass and locate EEO cases where these judges voted — and wrote — the “right” way. I have no idea how many other kinds of cases there might be (civil rights, consumer or comparable cases) where these same judges might have approved pro-plaintiff results. Though I would not consider myself an apologist for any of the aforementioned judges, I do think that fair play is the “American Way.”

Thursday, September 28, 2006

There’s been a paucity of EEO cases this week, but here’s a remarkable en banc Title II ADA decision from my Seventh Circuit, Wisconsin Community Services Inc. v. City of Milwaukee, No. 04-1966 (7th Cir. Sept. 26, 2006) (no link is available right now, due to a glitch with the Court’s server; I will substitute a link when it becomes available).

WSC is a not-for-profit that provides a wide variety of services for the state’s disabled. Its plans to erect an out-patient mental health ran aground when the city zoning board denied a special-use permit, officially because it was deemed contrary to the goals of protecting the health and safety of the neighborhood and detrimental to local property values. A district court in Milwaukee ordered the board to issue the permit, under Title II (regarding public services, programs and activities) and the Rehabilitation Act. A panel of the Seventh Circuit reversed, 2-1, holding that a plaintiff under either act must prove either disparate treatment or disparate impact.

On rehearing, the court (with Judge Sykes recused) held unanimously that Title II implicitly incorporates a “reasonable accommodation” theory, despite the absence of express language in the statute. The court deferred to a regulation of the U.S. Attorney General (28 C.F.R. § 35.130(b)(7)) embracing this theory: “A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” Even the author of the original panel decision (Judge Easterbrook) demurred, “because further consideration has led me to conclude that the right question is what this regulation means rather than what label to attach to its provisions.” The case was remanded for a hearing by the district court concerning “whether WCS has been prevented, because of its clients’ disabilities, from locating to a satisfactory new facility.”

Cases like Olmstead v. L.C., 527 U.S 581 (1998), Tennessee v. Lane, 541 U.S. 509 (2004), and this one show that, for whatever grief the plaintiff’s bar has suffered over Title I of the ADA as a vehicle for employment litigation, Title II has proved a powerful tool for breaking up the segregation and warehousing of our disabled population. For which, thinking of the disabled I have known, I am cheered and grateful.

Tuesday, September 26, 2006

Title VII states that pregnant women “shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). So if male police officers with medical limitations are allowed to keep working at the department, may the same agency force a woman off-duty and burn off her sick days because of medical complications related to pregnancy? If the Sixth Circuit is to be believed, Tysinger v. Police Department of the City of Kaneville, No. 05-3785 (6th Cir. Sept. 25, 2006), the answer apparently is “yes.”

The facts are simple: “In September 2000, after [plaintiff Officer] Tysinger had been in a physical altercation with a suspect, her doctor prescribed a work restriction, providing that ‘Teresa is to be on light duty during her pregnancy.’ When she presented this to Police Chief Eric Lambes, he advised her that there was no light duty position within the department and that she would have to be off work until she was able to return to full active duty.” Around the same period, however, two men with medical restrictions (for a broken toe and an injured quadricep muscle) requested and received permission to stay on duty. Tysinger challenged her leave under Title VII and Ohio state law.

Affirming summary judgment, the panel majority found that the plaintiff failed to identify “similarly situated” non-pregnant officers. Rather, “[d]espite their temporary inability to perform all the duties of their positions, they continued working in their usual assigned capacities. It is in this crucial respect that [male officers] Landerman and Madden were not similarly situated to Tysinger. Despite their temporary infirmities, they presented themselves to their employer as willing and able to continue working in their ordinary capacities. Tysinger, on the other hand, distinguished herself by asserting the need for and requesting a temporary alteration in her job duties. In this respect, she sought from her employer not the same or equal treatment received by Landerman and Madden, but more favorable treatment.”

Dissenting, Judge Martin detects some paternalism in the way it treated Officer Tysinger versus the male officers: “As to its male police officers, the City of Zanesville appears to be prochoice. As to the pregnant Tysinger, the City took her choice away.”

Wednesday, September 20, 2006

In book five of J.K. Rowlings’ Hogwarts opus, “Harry Potter and the Order of the Phoenix,” a detested Ministry of Magic bureaucrat (the delightfully Dickensian Dolores Umbridge) orders by “Educational Decree Number 26” that “Teachers are hereby banned from giving students any information that is not strictly related to the subjects they are paid to teach.” The rule was emplaced to prevent the spread of (true) rumors that the Dark Lord, Voldemort, had returned to the magical world. A prior restraint, if ever we recognized one.

Although I don’t often use this blog to discuss the free speech rights of public employees, I couldn’t help but notice Piggee v. Carl Sandburg College, No. 05-3228 (7th Cir. Sept. 19, 2006) , which carried just enough of a flavor of EEO law to give me an excuse to write about it.

Piggee, a part-time instructor of cosmetology, finds herself aghast that one of her male students is homosexual. She sneaks anti-gay “Christian” tracts, in the form of comic books (“Sin City” and “Doom Town”, from Chick Publications — warning, these are most horrible!), into his smock and urges him to read them. The student sure enough reads them, then turns the instructor in to the administration under its sex harassment policy. She is given an official warning to cease proselytizing students, and eventually is not renewed. She sues claiming violation of her First Amendment Pickering rights.

The Court briskly lays out the foundation of First Amendment protection of academic freedom, with a reminder that any form of curriculum inherently restricts speech:

“No college or university is required to allow a chemistry professor to devote extensive classroom time to the teaching of James Joyce’s demanding novel Ulysses, nor must it permit a professor of mathematics to fill her class hours with instruction on the law of torts. Classroom or instructional speech, in short, is inevitably speech that is part of the instructor’s official duties, even though at the same time the instructor’s freedom to express her views on the assigned course is protected.”

Thus “[t]he real question,” writes the court, “is whether the college had the right to insist that Piggee refrain from engaging in that particular speech while serving as an instructor of cosmetology.” The court finds that even an informal chat at the beauty salon (part of the clinical study of cosmetology) counts as instruction, comparing the salon to a legal-aid clinic: “Law students almost universally have the opportunity to work in instructional clinics, which typically are open to the public and offer legal services to indigent clients.”

Finding the salon to be an extension of the classroom, it then finds that the college had the interest and authority to limit what it saw as hate speech:

“Piggee’s ‘speech,’ both verbal and through the pamphlets she put in Ruel’s pocket, was not related to her job of instructing students in cosmetology. Indeed, if it did anything, it inhibited her ability to perform that job by undermining her relationship with Ruel and other students who disagreed with or were offended by her expressions of her beliefs.”

The court likewise disposes of the instructor’s due process and equal protection arguments.

Tuesday, September 19, 2006

Two cases of note from Monday. First, the Seventh Circuit reverses summary judgment on various Title VII/§ 1983 gender discrimination claims (Phalen v. Cook County, No. 04-3991 (7th Cir. Sept. 18, 2006)). Incredibly, the district court held that a four-month-long termination of a female mechanical engineer was not an “adverse employment action” if the employee was eventually reinstated with back pay. The Seventh Circuit holds:

“Consistent with Title VII’s goal of deterring discrimination, we decline to endorse a rule that would allow employers to escape liability by merely reinstating the aggrieved employee months after termination, whenever it becomes clear that the employee intends to pursue her claims in court. Such a rule could create an unintended economic incentive for employers to reinstate an employee who files a discrimination suit as means to avoid Title VII penalties whenever the costs of reinstating the employee are lower than the employer’s exposure in an Title VII suit.”

The employee also presented what the panel termed (in a marvelous bit of judicial understatement) “abundant” circumstantial evidence of discriminatory intent:

“Phelan has introduced evidence that she was bodyslammed into her desk by two men, repeatedly placed in a headlock by another, and instructed repeatedly that her workplace was ‘no place for a woman.’ There is also evidence that when Phelan complained on multiple occasions to her supervisors and to Human Resources, she was rebuffed and even insulted. Phelan testified in her deposition that [supervisor] Callaghan instructed her to stop contacting Human Resources regarding the harassment from her co-workers; a reasonable factfinder could construe this as an attempt by Phelan’s direct supervisor to prevent Phelan’s harassment from coming to light. Callaghan also told Phelan that her problems stemmed from the fact that she was trying to work ‘in a man’s world,’ and stated that ‘[i]f you leave right now, it will make a better life for you.'”

The panel also concludes that there is a genuine issue of material fact about whether a human resources employee who possessed significant (though not absolute) authority to terminate the employee: “Phelan testified that [HR officer] Partee was a direct participant in her sexual harassment. Partee’s role as a Human Resources employee does not, however, fit the typical mold of a Title VII supervisor. But Cook County’s system seems to divest any one individual of all of the powers that our cases have traditionally associated with the Title VII supervisor. It would be an odd result if an employer could escape the possibility of strict liability for supervisor harassment simply by scattering supervisory responsibilities amongst a number of individuals, creating a Title VII supervisory Hydra.”

Second, the Third Circuit finds unconstitutional the City of Newark’s 2002 mandate involuntarily transferring dozens of firefighters to achieve racial balance among the city’s 108 fire companies. Lomack v. City of Newark, No. 05-4126 (3d Cir. Sept. 18, 2006). In a brief opinion reversing a bench verdict for the city, the panel rejects each of three compelling interests asserted by the city: remedying past discrimination (there was no record of past discrimination by the city, thus nothing to remedy); operational benefits (record lacked any evidence that the policy was necessary to make fire companies more effective); and compliance with a 1980 Consent Decree (decree did not compel integration of fire companies). The panel made light of the city’s defense under Grutter v. Bollinger , 539 U.S. 306 (2003):

“The Fire Department’s mission is not to educate. Its mission is ‘the control, fighting and extinguishment of any conflagration which occurs within the city limits.’ Newark, N.J. General Ordinances v. I, tit. II, ch. 21, § 1.2 (2005). Accordingly, Grutter‘s holding regarding a compelling interest in the educational benefits of diversity is unavailing here. And, we note, the City does not argue that diversity within individual fire companies is in any other way necessary, or even beneficial, to the Fire Department’s mission of fighting fires, i.e., that the Department has an operational need for diverse fire companies, and we do not read the City’s assertions of increased ‘camaraderie,’ ‘acceptance,’ and ‘tolerance’ as making such an argument.”

The opinion does not explain how a mid-sized city like Newark, historically down at the heels, still manages to support 108 separate fire companies.

Monday, September 18, 2006

When a plaintiff’s testimony during a deposition does not jibe with a subsequent affidavit, submitted in opposition to summary judgment, federal courts routinely strike or disregard the affidavit under the “sham affidavit” rule or a “judicial estoppel” theory. As the Supreme Court observed in Cleveland v. Policy Management Systems Corp. , 526 U.S. 795, 806 (1999):

“[The lower courts] have held with virtual unanimity that a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.”

Note that the Supreme Court declined to endorse this rule, leaving it for another day. Id. at 807 (“we do not necessarily endorse these cases, but leave the law as we found it”). And the rule presents a striking discontinuity between Fed. R. Civ. P. 56 summary judgment and Fed. R. Civ. P. 50 judgment as a matter of law. For if a plaintiff testifies differently at a jury trial, it only goes to the sufficiency of the evidence; it does not require entry of a judgment for the defendant.

Now the Sixth Circuit, in Briggs v. Potter, No. 06-0356 (6th Cir. Sept. 15, 2006), prunes one abuse of this rule, holding that an affidavit that includes different — though not flatly contradictory — testimony does not derail the plaintiff’s case on summary judgment. In such a case, the court holds, the movant’s failure to ask the right questions in the deposition (to box in the testimony) leaves open the prospect of a supplementary affidavit by the non-movant.

Here the contested issue of fact was the relative qualifications of candidates for promotion. The plaintiff had an admission by one of the decision makers (named Pickard) at the Postal Service about his superior qualifications, which he put in his affidavit opposing summary judgment: “Mr Pickard told affiant that affiant would not have a problem finding another job [within the Postal Service], whereas the less-qualified and less experienced selected candidates . . . would have a more difficult time finding alternative positions within the Postal Service due to their limited knowledge and experience in Postal operations.” The Postal Service rejoined that the plaintiff had not previously testified about this admission, and the district court disregarded the affidavit. But the Sixth Circuit reinstated the admission to the record, holding:

“While Briggs was questioned generally about that June 2001 conversation, he was not expressly asked what Pickard had said to him during that conversation. As Briggs was not under any obligation to volunteer everything Pickard said during that conversation, he should not be prevented from providing greater detail in a later affidavit.”

(Although the district court abused its discretion in rejecting the affidavit, the panel went on to affirm summary judgment on other grounds.)

Thursday, September 14, 2006

Does placing an employee on administrative leave with pay for nearly a year constitute an “adverse employment action” subject to challenge under Title VII. The Second Circuit joins several other circuits in holding that, ordinarily, it does not. Joesph v. Leavitt, No. 05-3348 (2d Cir. Sept. 13, 2006) (available at Second Circuit website). Thus, summary judgment was proper because the plaintiff failed to make out a prima facie case. (Because the claim was for discrimination, rather than retaliation, the court had no occasion to consider the impact of Burlington Northern v. White, 126 S. Ct. 2405 (2006).)

In this case, the facts seemed more favorable to the employee than usual: the agency acted after the employee was arrested and charged with assault of his live-in girlfriend for the second time. FDA investigators attempted to question Mr. Joseph, because some of the allegations concerned misuse of government property and drug use, but he declined in light of the pending charges. This led to the imposition of administrative leave effective March 22, 2002. It then suspended its investigation pending the criminal prosecution. Even though the charges were thereafter dropped by the district attorney, it took the agency five more months (while it undertook its own investigation) to reinstate Mr. Joseph to his job (March 2, 2003).

The panel majority finds that the “employee does not suffer a materially adverse change in the terms and conditions of employment where the employer merely enforces its preexisting disciplinary policies in a reasonable manner.” Although the panel majority noted it found the five-month delay “troubling,” based on the record it found that some of the delay was attributable to Mr. Joseph’s initial unwillingness to cooperate with the internal investigation, and that it was reasonable for the agency to delay its investigation while the district attorney completed its work.

Judge Jacobs concurs in the result, finding a lack of evidence on the ultimate question of pretext, but rejects the majority’s blanket assertion that such leave may not be materially adverse. “The implication of the majority’s holding is thus that paid administrative leave can never be adverse; but I wonder what we would do in a case in which a school administrator told a teacher: ‘The parents do not want their children taught by a person of mixed race, so you are on paid administrative leave until you can be transferred to a comparable position at a nearby school.'”

And I would add — along with the forced idleness, lost contact with the workplace and squelched opportunities for future employment — another uncomfortable racial dimension to this disciplinary action. African-American men are already stigmatized as prone to criminality. The FDA’s action here fits a hackneyed, racist storyline that black men use drugs and beat their women. Perhaps in this case there was no racial motivation to the suspension (so the concurring judge found), but to say it was not an adverse action blinkers reality.

Wednesday, September 13, 2006

It is a laugh line I sometimes use at conferences, while advising employees’ attorneys about case selection: never represent the employee who throws the first punch or is caught with Internet smut on their work computer. Now you know why.

Update — “May a state department of corrections be held liable for prison officials’ failure to correct a hostile work environment that is the result of male prisoners’ sexual harassment of female guards? We answer that question, ‘Yes.’ ”

The Ninth Circuit in Freitag v. Ayers, No. 03-16702 (9th Cir. Sept. 13, 2006) thus weighs in on the interesting problem of a sexually hostile work environment created by non-employees, in this case male prisoners harassing a female guard. (The scenario closely resembles Randolph v. Ohio Dep’t of Youth Services, 453 F.3d 724, 98 FEP 705 (6th Cir. 2006), involving a female food services worker harassed by inmates, discussed here on July 14, 2006.) The guard repeatedly attempted to write up and discipline prisoners who exposed themselves and masturbated in front of her, but was countermanded at each turn by male superiors:

“Freitag completed a 128 Form detailing the incident and attempted to discipline Inmate Z with ten days of escort status, which was approved by a supervising captain. However, Lieutenant David Carmichael discarded the 128 Form and informed Freitag that she could not place Inmate Z on escort status, explaining to her that she was the only officer who had a problem with Inmate Z, and that ‘it’s only sex.'”

After being rebuffed several times, she took her complaints in writing to the director of California Department of Corrections and Rehabilitation. In response, the assistant warden Teresa Schwartz “informed Freitag that she was being relieved of her duty in the SHU pending a psychiatric evaluation; Schwartz stated that the prison was taking the action in response to Freitag’s ‘incoherent’ memoranda regarding inmate harassment. Schwartz also threatened to terminate her.” The situation continued to escalate: eventually, Internal Affairs investigated the plaintiff for allegedly filing a false report and recommended her termination.

Meanwhile, owing to the plaintiff’s complaint to a state senator, the California Office of the Inspector General investigated her complaints and entirely vindicated her complaints of rampant sexual exhibitionism. In addition:

“Freitag’s expert on prison administration, William Katsaris, testified [at trial] that Pelican Bay was ‘the only institution I have come across that has a serious problem with [exhibitionist masturbation].’ He stated that prisons throughout the country have controlled the problem in part by installing semi-opaque finish to control booth windows so that officers can see out but inmates cannot see in. He further testified that Pelican Bay administrators could have taken, but failed to take, other corrective actions such as imposing serious disciplinary measures for sexual misconduct, restraining sexually abusive inmates or taking away their yard privileges, and working with the district attorney’s office to prosecute serious and repeat offenders.”

On these facts, a jury returned a verdict of $500,000 economic and $100,000 non-economic damages to the plaintiff under Title VII (for harassment and retaliation), and for violation of her First Amendment rights.

The court affirms the verdict under Title VII, but remands the First Amendment claim to the district court in light of Garcetti v. Ceballos, 126 S. Ct. 1951 (2006). The opinion, authored by Judge Reinhardt, fillets the department’s argument that prison environment are inherently dangerous and deserve special dispensation under the civil rights laws:

“In short, the defendants cite no authority, and we have found none, holding that prisons are uniquely exempt from liability for sexual harassment under Title VII, nor have they proffered any evidence that Congress intended prison employers to be thus exempt. Further, we see no persuasive argument, legal or otherwise, to support the novel position that the defendants take on this issue. Nothing in the law suggests that prison officials may ignore sexually hostile conduct and refrain from taking corrective actions that would safeguard the rights of the victims, whether they be guards or inmates. As the district court found, ‘even in an inherently dangerous working environment, the focus remains on whether the employer took reasonable measures to make the workplace as safe as possible.’ The CDCR is not, by simple virtue of its status as a correctional institution, immune under Title VII from a legal obligation to take such measures and to protect its employees to the extent possible from inmate sexual abuse.”

The court also found sufficient evidence to support the jury’s verdict.

Tuesday, September 12, 2006

Could years of litigation been avoided by closer proofreading by the EEOC?

In EEOC v. Watkins Motor Lines, No. 05-3218 (6th Cir. Sept. 12, 2006), the Sixth Circuit affirms summary judgment in an ADA case involving a morbidly-obese dock worker. The employee (Stephen Grindle), injured in a fall from a ladder, was not returned to work when the industrial clinic doctor refused to recertify him for work owing to his weight (405 lbs.). The EEOC pursued the claim as a “regarded as” case (42 U.S.C. § 12102(2)(C)), which nevertheless required the employee (or in this case, the Commission) to allege that he was perceived to have an impairment protected by the ADA.

The panel finds that while morbid obesity may be deemed an ADA impairment where it has a physiological cause, non-physiological morbid obesity is not an “impairment” under ADA.

“We decline to extend ADA protection to all ‘abnormal’ (whatever that term may mean) physical characteristics. To do so ‘would make the central purpose of the statutes, to protect the disabled, incidental to the operation of the ‘regarded as’ prong, which would become a catch-all cause of action for discrimination based on appearance, size, and any number of other things far removed from the reasons the statutes were passed.’ Francis v. City of Meriden, 129 F.3d 281, 287 (2d. [Cir.] 1997). Thus, consistent with the EEOC’s own definition [29 C.F.R. § 1630.2(h)(1)], we hold that to constitute an ADA impairment, a person’s obesity, even morbid obesity, must be the result of a physiological condition.”

The regulation cited by the Sixth Circuit stated:

Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.

Concurring, Judge Gibbons gives the regulation a close read against a nearly-identical regulation promulgated under the Rehabilitation Act, 34 C.F.R. § 104.3(j)(2)(i)(A). The judge notes that the EEOC placed weight on the supposed distinction in the regulation between “disorder” and “condition,” but tracing the history of the parallel regulations finds the distinction illusory:

“The difference between the two regulations is slight but important. As noted above, § 1630.2 has a comma separating disorder and condition, whereas § 104.3 does not. This means that under the definition the agency intended to adopt, ‘physiological’ modifies both ‘disorder’ and ‘condition’ rather than just ‘disorder.’ In addition to this statement that the EEOC was adopting the definition of § 104.3, the actual definition given by the agency in the Federal Register does not contain the extraneous comma. See 56 Fed. Reg. at 35740-41. Finally, the definition of physical impairment for the Rehabilitation Act, 29 U.S.C. § 794, which is often interpreted coextensively with the ADA, likewise does not contain the extra comma. See 45 C.F.R. § 84.3(j)(2). Thus, the best reading of § 1630.2 is that the comma following ‘disorder’ is scrivener’s error, meaning that the statute requires a ‘physiological disorder or condition’ in order for a ‘physical impairment’ to exist under the ADA.”

So was the litigation entirely a dead-end? The concurring opinion suggests an alternative route for plaintiffs afflicted like Mr. Grindle: prove that the obesity is tractable to a physiological cause. But the EEOC did not take this route in this case, leaving this issue open to future development.

Monday, September 11, 2006

Nothing to report on EEO law today, but for interesting reading I recommend today’s habeas decision in the Ninth Circuit, Kesser v. Cambra, No. 02-15475 (9th Cir. Sept. 11, 2006) (en banc). On a 6-5 vote (the Ninth Circuit uses randomly-drawn panels of 11 for “en banc” review), the court grants the writ — reversing the district court — on a Batson challenge where a county prosecutor avowedly considered a veniremember’s race (Native American) in making his preemptory strikes. The prosecutor’s testimony was breathtakingly straightforward:

“The racial animus behind the prosecutor’s strikes is clear. When he was asked to explain why he used a peremptory challenge to eliminate Rindels, he answered using blatant racial and cultural stereotypes. He identified Rindels as a ‘darker skinned,’ ‘[N]ative American female’ and worried that Native Americans who worked for the tribe, like Rindels, were ‘a little more prone to associate themselves with the culture and beliefs of the tribe than they are with the mainstream system.’ The prosecutor did not want such Native Americans on the jury because ‘they are sometimes resistive of the criminal justice system generally and somewhat suspicious of the system.’ Later in the hearing, he elaborated on his fears of Native American culture when he explained that an expert had testified in a local criminal case that ‘child molesting is okay in certain Native American cultures’ and worried that ‘there are a whole bunch of people that violate our laws that are [N]ative Americans and they go much more often through the [N]ative American system than the criminal system.’ The prosecutor emphasized the seriousness of the situation by explaining that not only were Native American child molesters escaping justice, but that expert testimony about Native American culture had recently brought an acquittal to a charge of murdering a police officer.”

On the other hand, the record presented other, supposedly non-racial reasons proffered for each of several strikes of Native Americans. Through the lens of habeas and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) — which mandate special deference to the state court’s application of constitutional standards on direct review of a conviction — the issue was whether it was clearly established that a mixed-motive strike ran afoul of the Equal Protection clause. The majority opinion side-stepped the issue, finding that the state appeals court simply “erred in finding any sincere, permissible motives” for the strikes.

But three judges in concurrence, and five in dissent, crossed swords over the issue. The concurring judges (led by Judge Wardlaw) locate a federal Equal Protection “mixed motives” analysis: “Supreme Court precedent requires application of ‘but for’ mixed-motive analysis to determine whether the strike violates the Equal Protection Clause.” The dissent, signed by Judge Rymer, demurs: “While Batson clearly established that the constitution forbids prosecutors from exercising peremptory challenges purposefully to discriminate against members of a cognizable group, the Supreme Court has never held that the only permissible challenge is one that is based solely on race neutral reasons.”

Interesting enough to read even as a non-criminal lawyer, I commend this case as a corrective to those who delude themselves into thinking that we finally have racial prejudice under control. For here we have a product of legal education and training under penalty of perjury, bearing his biases. I doubt we should expect any better from the faceless throngs in management who make daily decisions about the fates of employees, with no oath to uphold or appellate review to fear.

Friday, September 8, 2006

Someday, someone will successfully petition for certiorari in the U.S. Supreme Court from one of the Eighth Circuit’s dreadful harassment decisions, and set straight the “severe or pervasive” standard in that court. For a cert-worthy candidate, one could hardly do better than the majority opinion in Arraleh v. County of Ramsey, No. 05-4474 (8th Cir. Sept. 7, 2006), which declares that the following comments directed at a Somali Muslim over six months do not constitute a hostile work environment:

  • “Today, your skin doesn’t look as white as it normally does”
  • Being referred to as “Mr. Cocoa”;
  • “Is your hair for real?”;
  • “It’s very difficult to work with you people”;
  • African-Americans are “very difficult to work with” because they are “very emotional” and “take things too personally”;
  • “[B]lack people are expected to leave their blackness behind”; and
  • A co-worker named Mary Michael vehemently stated, “Muslims should be killed.”

The panel majority (with Judge Heaney dissenting) “conclude[s] Arraleh’s evidence does not meet the rigorous standards reflected in circuit precedent to support a hostile work environment claim” because “many of the alleged comments were wholly unrelated to Arraleh’s race or national origin or had a tenuous connection to them.” Perhaps so, and yet a jury could probably find that the statements quoted above were enough to raise the inference that race and religion were part of the equation.

Oddly enough, just two weeks ago in Green v. Franklin Nat’l Bank, No. 05-2513 (8th Cir. Aug. 23, 2006), a different panel of the same court found that eight instances of a co-worker calling black employee a “monkey,” saying he would like to eat plaintiff’s liver, and saying that he liked to “get even” with people who wronged him created genuine issue of material fact on severe or pervasive harassment (although it affirmed summary judgment on other grounds).

Thursday, September 7, 2006

Earlier this year, the Third Circuit in Petruska v. Gannon Univ ., No. 05-1222 (3d Cir. May 24, 2006), permitted a suit by a school chaplain to go forward against a religious school, reversing dismissal of her complaint under the judge-created “ministerial exception” to Title VII (see my May 25, 2006 entry). To no one’s surprise, when the author of of the original (now superceded) panel decision (Judge Becker) died days before release of the opinion, and his co-panelist Judge Nygaard subsequently recused himself, a newly-constituted panel — that included original dissenter Judge Smith — ordered rehearing (see my June 29, 2006 entry). And now the panel issues a new opinion, signed by Judge Smith, which reverses field and affirms dismissal after all (with a limited exception for a state-law contract claim): Petruska v. Gannon Univ., No. 05-1222 (3d Cir. Sept. 6, 2006).

The new opinion follows the contours of Judge Smith’s original dissent, finding extension of federal EEO law to occupational “spiritual functions” unconstitutional. It even reiterates one of the dissent’s most perplexing passages, rejecting the chaplain’s retaliation claim because “the retaliatory conduct she alleges constitutes a protected choice” by the school. But retaliation for opposing discrimination or participating in an EEOC charge under 42 U.S.C. § 2000e-3(a) does not depend on the merits of the underlying claim, as Judge Smith suggests, but only on the employee’s good faith in resorting to those measures (a point recently reaffirmed by Burlington Northern v. White, 126 S. Ct. 2405 (2006)). As evidence of Ms. Petruksa’s good-faith, one need travel no further than the original panel opinion — in which two of the three Third Circuit judge’s concurred in the legal validity of her claim.

In another development, here’s another case (like yesterday’s) where an employee complaining of intermittent episodes of depression fails to make out a claim under the ADEA, failing to prove significant limitation in any major life activity: McWilliams v. Jefferson Co., No. 05-1081 (10th Cir. Sept. 6, 2006)

Wednesday, September 6, 2006

Proving that major depression constitutes a “disability” under the ADA depends a lot on how you frame the question. If presented as a substantial limitation upon the major life activity of “thinking,” plaintiffs have cleared this hurdle. Examples include Battle v. United Parcel Service, Inc., 438 F.3d 856, 17 A.D. Cases 1099 (8th Cir. 2006), and Head v. Glacier Northwest Inc., 413 F.3d 1053, 16 A.D. Cases 1606 (9th Cir. 2005). If pitched as a limitation on the major life activity of “working,” though, the bar is much steeper (but not unscalable; see Williams v. Philadelphia Housing Authority Police Dept., 380 F.3d 751, 15 A.D. Cases 1607 (3d Cir. 2004)).

The Seventh Circuit on Tuesday published Cassimy v. Board of Educ. of the Rockford Pub. Sch., No. 05-2839 (7th Cir. Sept. 5, 2006), a case where a public school principal apparently took the latter course in a reasonable accommodation case, with regrettably predictable results: “To the extent that ‘working’ is the major life activity under consideration, Cassimy must show that he had an inability to work in ‘a broad range of jobs, rather than a specific job.’ Toyota, 534 U.S. at 200 (internal quotation omitted). The district court concluded that Cassimy had not done so. To the contrary, the evidence showed that he functioned well in both teaching and administrative positions after he left his post as principal of Washington [Community Academy]. The Sunday panic attacks may have slowed down his preparations for the upcoming week, but they did not prevent him from working. Indeed, he left the Rockford school system for other systems that must have been at least as demanding: the New York City Public schools and the Chicago Public schools.”

Friday, September 1, 2006

Rereading EEOC v. Target Corporation, No. 04-3559 (7th Cir. Aug. 23, 2006), which I commented upon last week, I noticed something else that reflected on the common experience of evaluating resumes.

This was a hiring case, where recent college graduates submitted resumes to a national retailer for Executive Team Leader (ETL) positions, that function below the store manager (Store Team Leader, or STL). The process of winnowing the applicants included (1) a review of the resumes; (2) an initial interview; (3) a test (PDI) — graded in “green,” “yellow,” and “red” bands — followed by an ELITE interview (three rounds of one-on-one interviews).

The charging parties reached different stages of this process before being rejected. One, James Daniels, survived the first two stages, passed the PDI exam (with a 97th-percentile score), but was said by Target not to “meet the requirements” for ETL, even though it produced no interview forms or further explanation. I noted in my post last week (August 24, 2006) that the panel reversed summary judgment on the ground that this explanation was so inadequate that it failed even to meet the burden of production under McDonnell Douglas .

The three other charging parties (named Kalisha White, Ralpheal Edgeston, and Cherise Brown-Easlye), received e-mails from corporate inviting them to participate in initial interviews (step 2), but the manager in charge allegedly failed to return their phone calls or, in one case, begged off an interview claiming lack of time. One applicant became suspicious enough to submit a second, bogus application under the name of “Sarah Brucker,” gave a predominantly white community as a home address, and even recruited a white acquaintance to play “Sarah” on the phone. “Sarah” snagged an interview, while the same manager allegedly told White the same day that he did not have time to interview her.

These three frustrated applicants all had — in addition to identifiably African-American names — affiliations with black sororities or other historically African-American organizations listed in their resumes. Thus, while the employer claimed ignorance about the applicants’ races, it was there for the world to see:

“White’s resume indicated that she was a member of Alpha Kappa Alpha sorority, and [STL hiring manager] Armiger testified that he knew this to be an African-American sorority. Edgeston’s resume showed that she also was a member of Alpha Kappa Alpha sorority, that she majored in African-American studies that she wrote a paper titled The African-American Response to school Choice in Milwaukee and that she was a member of the NAACP. Finally, Brown-Easley’s resume indicated that she was a member of the “Metropolitan Alliance of Black school Educators.” Armiger testified that he typically looked at sorority involvement and extracurricular activities when he reviewed resumes, and that he reviewed White and Edgeston’s resumes. In addition, Armiger was in charge of recruiting at University of Wisconsin-Milwaukee, and Edgeston and Brown-Easley’s resumes were collected from a multi-cultural career fair at that school.

* * * *

“Dr. Thomas Purnell, a linguistics professor, researched racially-affiliated dialects and telephone filtered speech. Purnell had White, Edgeston and Brown-Easley read statements to him over the telephone that were similar to those they made to Armiger. He testified that the three women were discernible as African-American.

“Dr. Marianne Bertrand, an economics professor, testified that some corporate recruiters can identify a person’s race based on his or her name. Bertrand’s study compared job applicants with Caucasian names, such as Sarah, versus applicants with African-American names, such as Lakisha. Bertrand noted that White’s first name, Kalisha, is very similar to the name Lakisha that was used in her study. The expert testimony of Purnell and Bertrand might persuade a reasonable fact finder that, at the time of the phone calls, Armiger at least suspected that White was African-American and that “Brucker” was Caucasian.”

A lot of resources to pour into a hiring case, and thank goodness for the EEOC for bringing the case.



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)


March, 2008

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