November 2006

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

Daily Developments in EEO Law
by Paul Mollica © 2006

Tuesday, November 28, 2006

There has been an ongoing legal skirmish over the past decade concerning the Navy’s treatment of chaplains classified as Nonliturgical Protestant (e.g., Baptist, Evangelical, Pentecostal, Charismatic). See, e.g., Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006); In re England, 375 F.3d 1169, 94 FEP 195 (D.C. Cir. 2004). The latest development arrived today, Veitch, Rev. v. England, No. 05-5196 (D.C. Cir. Nov. 28, 2006), reviewing summary judgment as to one such chaplain who claimed constructive discharge.

This case positions interesting, unresolved issues for consideration, only to crawfish out of them. First, Title VII does not expressly include or exclude members of the uniformed services. The D.C. Circuit notes that most cases have regarded soldiers, sailors and the like to be excluded, but — because chaplain here fashioned the claim as a Bivens action — the issue was not presented.

Second, the core of the claim was that the chaplain’s superior officer (a Roman Catholic priest) rode him about preaching sola scriptura (“only the Scriptures,” the received and authoritative word of God). The chaplain alleged that the Navy enforced a “pluralism policy” that was hostile to his beliefs, and that his superior officer undertook a campaign of suppression: assigning him no tasks, depriving him of the perquisites of a senior chaplaincy, being generally curt and unfriendly. One allegation is that the priest “tore a Reformation Conference poster off [Rev. Veitch’s] wall.” Finally, Rev. Veitch left the service.

Is such a claim of constructive discharge even within the federal court’s (or any U.S. court’s) jurisdiction, or is it barred by the First Amendment? The court colorfully describes the problem:

“Veitch would have us confront a rather troubling constitutional question: whether chaplains in the armed services can be required to endorse “pluralism” in their religious practices. The services are understandably concerned about unit morale. And those of us old enough to remember World War II movies will recall scenes of chaplains at the front line performing services for soldiers of different religions. On the other hand, Veitch’s argument that a chaplain cannot be obliged to preach counter to his or her religious beliefs consistent with the First Amendment is hardly a frivolous claim.”

Although courts ought to treat jurisdiction first in line of priority, the panel shortcuts this issue, too. It holds that Rev. Veitch’s allegations of constructive discharge failed as a matter of law, because he voluntarily resigned from the service and thus lacked standing to pursue his constitutional claim for redress. It also held that the various slights and acts of harassment together did not amount to constructive discharge (and a separate opinion by Judge Judith Rogers concurs on this specific ground).

Tuesday, November 21, 2006

Any opinion that leads off by describing the employee (in a Title VII retaliation suit) as “no stranger to litigation” is not … auspicious.

So in a short opinion, light on case law and freighted with history, the court affirms summary judgment. Szymanski v. Cook County, No. 06-1061 (7th Cir. Nov. 20, 2006). The employee (a nurse of Caucasian and of Polish descent) lost a prior Title VII discrimination case against the Cook County Hospital before a jury but — after she was terminated three weeks after the first jury verdict — won a second jury trial for retaliation. (N.B.: here’s an employe who got two jury trials — while most plaintiffs would be satisfied with one.) The present case, her third Title VII suit against the same employer, ended in summary judgment for the defendant.

She claimed that she was frozen out of job opportunities at the University of Chicago Hospitals because her former employer gave false and negative evaluations of Szymanski to potential employers. But the court, agreeing with the district court that the plaintiff had failed to establish causation, also described the plaintiff’s novel and self-defeating tack in promoting her career:

“[S]he sent 287 e-mails to the university seeking employment. After about 100, the university could reasonably get tired of hearing from her. Secondly, her written application constrained a strange statement. The application form asked for the names of references. She wrote:

“you have not received my written permission for reference check. upon submitting the application somehow my application is electronically signed. This is illegal.

“Then, in what she herself describes as a fairly representative e-mail-this time applying for housekeeping jobs-she said:

“Since I have been barred from attaining employment based on my education and experience maybe you may consider employment for me in this field-housekeeping. I believe you do discriminate national origin and protected EEOC activity. Have applied to four housekeeping jobs. I am way beyond HS graduate.

The plaintiff also challenged “good” ratings by her former employer that she thought ought to have been “excellent.” As the panel deadpanned: “Cook County is, in countless, obvious ways, not Lake Wobegon; we cannot assume that all Cook County nurses are above average. Objectively, some may simply be good, or even just fair.”

Monday, November 20, 2006

The Eighth Circuit issues a decision affirming a rare pattern-or-practice verdict for plaintiffs in a Title VII case, along with a bench verdict on a parallel disparate impact claim. EEOC v. Dial Corp., Nos. 05-4183 (8th Cir. Nov. 17, 2006). The claim involved hiring into an entry level position. Here’s the job that was at stake:

“Dial is an international company with a plant located in Fort Madison, Iowa that produces canned meats. Entry level employees at the plant are assigned to the sausage packing area where workers daily lift and carry up to 18,000 pounds of sausage, walking the equivalent of four miles in the process. They are required to carry approximately 35 pounds of sausage at a time and must lift and load the sausage to heights between 30 and 60 inches above the floor. Employees who worked in the sausage packing area experienced a disproportionate number of injuries as compared to the rest of the workers in the plant.”

In 2000, Dial implemented a Work Tolerance Screen (WTS) for job applicants requiring them “to carry a 35 pound bar between two frames, approximately 30 and 60 inches off the floor, and to lift and load the bar onto these frames.” While previously nearly half of the new hires were women, after the test went into effect the percentage of female new hires was 15%. At trial, the record revealed not only that the test had a disparate impact on women, but that the test was scored and implemented in a discriminatory fashion: “more men than women were given offers of employment even when they had received similar comments about their performance”; “the occupational nurse marked some women as failing despite their having completed the full seven minute test.”

The jury awarded a total of $30,003 in compensatory damages to the nine claimants who testified at trial; the judge separately awarded injunctive relief, back pay and benefits. On appeal, the panel found sufficient evidence to support the jury verdict, and no clear error in the judge’s ruling on disparate impact. In particular, the panel affirmed the judge’s finding that the Dial test lacked content validity:

“Although Dial claims that the decrease in injuries shows that the WTS enabled it to predict which applicants could safely handle the strenuous nature of the work, the sausage plant injuries started decreasing before the WTS was implemented. Moreover, the injury rate for women employees was lower than that for men in two of the three years before Dial implemented the WTS. The evidence did not require the district court to find that the decrease in injuries resulted from the implementation of the WTS instead of the other safety mechanisms Dial started to put in place in 1996.”

The court also affirmed the rather robust recovery indicated in the opinion for the claimants denied employment (back pay up to $120,236 and lost medical premiums). And it even returned, for further proceedings, one claimant who was turned down for reemployment based on after-acquired evidence of a criminal record. All told, a total victory for the employees.

This victory makes a hat trick for the EEOC Appellate Division in the past 30 days (with EEOC v. Jefferson County Sheriff’s Dept., No. 03-6437 (10th Cir. Oct. 31, 2006) and EEOC v. HeartWay Corp. , No. 05-7011 (10th Cir. Oct. 26, 2006)).

Friday, November 17, 2006

The Seventh Circuit — in a 2-1 decision — affirms summary judgment in a racial disparate impact case, regarding police sergeant promotions in the Chicago Police Department. Adams v. City of Chicago, No. 05-4145 (7th Cir. Nov. 16, 2006) . Because the 1994 promotion examination was conceded (by the city) to have a disparate impact when applied in 1997, but where the minority officers conceded the test to be job-related and consistent with business necessity, the only issue was whether the officers could present valid, less-discriminatory method of allocating the promotions.

The officers proposed, as an alternative, allocating 30% of the promotions for “merit” selection (i.e. on-the-job performance, as rated by their supervisors), the method eventually selected by the city in 1998. The district court excluded proof of the 1998 system under Fed. R. Evid. 407, which bars evidence of subsequent measures to prove liability. But the entire panel found that to be an abuse of discretion, as proving alternative promotional methods often requires looking forward or backward in time at the company’s personnel practices:

“A subsequently enacted method bears on the availability of the alternative method at an earlier time. Because we must discuss the availability of an alternative method, this situation falls within the ambit of the exception constrained in Rule 407, which explicitly ‘does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving . . . feasibility of precautionary measures.’ Since another purpose is at issue here, Rule 407 is an improper basis for the exclusion of the 1998 promotional method.”

The majority and dissent diverge from this point. The majority finds that despite the relevance of the city’s experience with the 1998 merit promotions, the record revealed no evidence that this method could have been used in 1997. “[W]hen the consultant created the 1994 examination, on which the 1997 promotions were based, Chicago had never considered merit for promotions to sergeant in the 100 years after written exams were instituted for the police officers. The parties also agreed that as of February 22, 1997, the date of the contested promotions, ‘the City had never developed, and had never had developed for it, a mechanism or procedure for merit promotions to the rank of police sergeant that had ever been validated.'”

But the dissent argued that a promotion method needn’t necessarily be validated to be available to an employer for purposes of disparate impact analysis. “An alternative is unavailable when, for verifiable reasons, the defendant cannot adopt it. A reasonable alternative is not unavailable simply because the defendant has not completed its own inquiry into the viability of the alternative” In this case the record showed that a city task force had recommended a merit-promotion system by 1997, and that such a system was already in place for lieutenant promotions by then.

Thursday, November 16, 2006

Lest anyone worry that I’m losing interest in this blog, I’ve been recently traveling (to Columbus, Ohio and St. Louis) and suffering a lack of new cases to write about. But the Seventh Circuit just released a new hostile work environment case worth noting: Erickson v. Wisconsin Department of Corrections, No. 05-4516 (7th Cir. Nov. 14, 2006) . This joins a recent clutch of cases about sex harassment of correctional workers by prisoners.

Here the employee, a female payroll worker, was raped by an inmate (named Spicer) who was cleared by the DOC to work as a janitor. Eight days before the rape, Ms. Erickson in person warned the prison warden, assistant superintendent, sections chiefs and human resources about the inmate’s bizarre behavior (fiddling around with a vacuum while staring at the plaintiff) and said she was worried for her personal security. None of these responsible figures, according to the trial record, took any action on her complaints prior to the rape. A jury found the DOC liable under Title VII.

The Seventh Circuit affirmed denial of judgment as a matter of law. The DOC took the unreal position that an employer cannot be held liable for a hostile work environment unless it was previously placed on notice of actual prior acts of sex harassment. The panel reacted unkindly to this suggestion: “This argument, we think, makes little sense. It would be futile for an employee, under defendant’s proposed formulation, to report conduct that reasonably suggested that sexual harassment would occur in the future. In other words, if Erickson had come into Hack’s and said ‘I think inmate Spicer will try to rape me when I come back to work next week,’ WDC had no duty to investigate unless it had evidence that Spicer had previously sexually harassed Erickson.”

The court also had a few choice words for the numerous folks who ignored Ms. Erickson’s peril: “The supervisors asked no follow-up questions of Erickson or her coworkers . . . . Nor did they question Spicer about the night of December 20 or remove him from his janitor position. And the slightest action here would have prevented a clearly preventable first-degree sexual assault. . . . . [I]t would have been a matter of a few minutes’ time and effort to remove Spicer and eliminate the risk he posed to Erickson. [¶] But WDC did nothing. And a reasonable jury, under the circumstances here, could find that lack of response to be unreasonable.”

Friday, November 10, 2006

The court in Pittari v. American Eagle, No. 05-4181 (8th Cir. 2006) orders entry of judgment for the employer in an ADA “regarded as” employment case, tossing the jury verdict in favor of the plaintiff (a flight attendant). The employee — apparently too late — argued that he was substantially limited (because of his use of depression/anti-anxiety medication) in the major life activity of “cognitive abilities.” Unfortunately, at trial the jury was instructed only on the major life activity of “working,” and the panel finds that Pitter failed to vault that hurdle:

“Although American Eagle restricted Pittari from performing safety-sensitive [flight attendant] duties, Pittari admitted he could have worked in other capacities with American Eagle. Pittari testified at trial he could have performed the role of a gate agent, ticket agent, or baggage handler, or could have performed other duties, such as directing passengers who needed assistance, or performing administrative or secretarial computer work. Such evidence refutes Pittari’s assertion he suffered a significant reduction in meaningful employment opportunities. If American Eagle regarded Pittari as temporarily unable to perform “one particular job,” no violation of the ADA occurred.”

In what seems a blunder, finally, the panel remands the case to calculate costs accruing after the defendant’s Rule 68 offer, despite that the rule applies only when the plaintiff obtains judgment in his favor. See Delta Air Lines, Inc. v. August , 450 U.S. 346, 351 (1981). When the judgment was reversed. it would seem, Rule 68 became (or ought to have become) inoperative.

Tuesday, November 7, 2006

The First Circuit holds that where an employee claims that an employer failed to hire her owing to retaliation for protected activity under Title VII, the prima facie case requires proof of application for a particular job rather than a generalized expression of interest in employment. Velez v. Janssen Ortho LLC, No. 05-2721 (1st Cir. Nov. 3, 2006). Affirming summary judgment for the employer, the Court reasons: “An open-ended request for employment should not put a burden on an employer to review an applicant’s generally stated credentials any time a position becomes available, at the risk of a Title VII claim. If we were to find such a general request the legal equivalent of an application, we would require employers to answer for their failure to hire individuals who did nothing more than express a desire to be employed.” Because the employee here was, by her own admission, “interested in being considered for any position available such as manufacturing supervisor, warehouse supervisor, maintenance supervisor, utilities supervisor, quality engineer, preventive maintenance supervisor or any other position,” the court holds that the claim goes no further.

Friday, November 3, 2006

Jury verdicts thrown out on evidentiary grounds are unusual enough, but here’s one where the employee was the beneficiary, for once: Mendelsohn v. Sprint/United Mgt. Co., No. 05-3150 (10th Cir. Nov. 1, 2006). In an ADEA reduction-in-force (RIF) case, the plaintiff Ms. Mendelsohn– terminated at age 51 — had been the oldest manager in her unit. “As evidence of Sprint’s alleged discriminatory animus toward older employees, Mendelsohn sought to introduce evidence that Sprint terminated five other employees over the age of forty as part of the same RIF. These employees apparently believed they too were victims of age discrimination. Through their testimony as well as her own, Mendelsohn sought to introduce evidence of a pervasive atmosphere of age discrimination at Sprint.” The district court excluded all of this testimony because the witnesses served under other managers than had plaintiff, relying exclusively on Aramburu v. The Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997).

Ruling 2-1, the court vacates the judgment and remands for a new trial. Evidentiary matters ordinarily obtain abuse of discretion review, but here the court finds legal error. Aramburu, which held that comparators must be drawn from staff managed by the same supervisor, was a discipline case rather than a termination case:

“Aramburu has no application where, as here, plaintiff claims to be a victim of a company-wide discriminatory RIF. Applying Aramburu‘s ‘same supervisor’ rule in the context of an alleged discriminatory company-wide RIF would, in many circumstances, make it significantly difficult, if not impossible, for a plaintiff to prove a case of discrimination based on circumstantial evidence. Conceivably, a plaintiff might be the only employee selected for a RIF supervised by a particular supervisor. Meanwhile, scores of other employees within the protected group also selected for the RIF might work for different supervisors. In such cases, the constraints of Aramburu would preclude a plaintiff from introducing testimony from those other employees. Applying Aramburu to cases of discrimination based on an alleged company-wide discriminatory RIF would create an unwarranted disparity between those cases where the plaintiff is fortunate enough to have other RIF’d employees in the protected class working for her supervisor, and those cases where the plaintiff is not so fortunate. We do not think such disparity should exist.”

Merely allowing the jury to see the bare names, dates and ages of those RIF’d, without their live testimony, scuttled Ms. Mendelsohn’s case. “The nature of the evidence Mendelsohn proffered is vastly different from the evidence the jury considered-merely names and dates of birth. Evidence of an employer’s alleged prior discriminatory conduct toward other employees in the protected class has long been admissible to show an employer’s state of mind or attitude toward members of the protected class.”

Wednesday, November 1, 2006

Fed. R. Civ. P. 56(f) ought to be a powerful tool against improvident grants of summary judgment, but relatively few appellate decisions discuss this option, let alone reverse a district court’s failure to grant relief under it. So here’s Culwell v. City of Fort Worth, No. 05-1136 (5th Cir. Oct. 31, 2006) , sending a case back for a more considered review of the employee’s request for more discovery.

This was a reverse race discrimination and retaliation action under Title VII and Texas state law. The district court denied the Rule 56(f) paper on two grounds: as a sanction for violating a local signature requirement (only lawyers, not law firms, may sign filings); and on the merits. It also denied leave to file a second Rule 56(f) motion as untimely. Ultimately, it granted summary judgment outright.

On review, the court reverses all of these findings. First, finds the panel, the sanction was an abuse of discretion because the district court as wrong on the facts (the signature was a bona fide lawyer), and overreacted to boot. “The form of the motion was not obviously violative of the order against submissions signed by firms, and it certainly did not warrant de facto dismissal on the basis of what must appear to the casual observer to be judicial petulance.” Second, on the merits the plaintiffs’ motion probably ought to have been granted. Holding that “Rule 56(f) allows for further discovery to safeguard non-moving parties from summary judgment motions that they cannot adequately oppose,” and thus should be “liberally granted” (!!), the panel reverses the district court’s finding that the plaintiffs failed to act with diligence. The plaintiffs filed their motion well within the discovery cut-off and in advance of the deadline to oppose summary judgment. Even if the 14-week extension for discovery sought was extravagant, plaintiffs “were entitled to some extension.”

Finally, the court held that the plaintiffs’ requested with enough specificity the needed discovery to preclude a ruling on the summary judgment motion: “Plaintiffs’ rule 56(f) motion stated that they needed discovery of documents relating to the City’s treatment of two black employees who they allege engaged in conduct similar to that for which the city claims it fired them. Plaintiffs seek to prove that the city knew of the similar activities of the other employees, yet launched no investigation and took no disciplinary action. If the sought-after documents support that theory, the documents would be sufficient to create a genuine dispute of material fact with respect to (1) whether the black employees to whom Culwell and Conrad point were, in fact, similarly situated and (2) whether the investigation was a pretext for a racially motivated discharge.” The court did, however, affirm summary judgment on a companion retaliation claim, on the ground that it was not within the scope of the EEOC charge.



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

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

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


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