January 2007

| Jan 18, 2007 | Daily Developments in EEO Law |

Daily Developments in EEO Law January 2007

Paul W. Mollica © 2007

Tuesday, January 30, 2007

The Supreme Court in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982), ruled that timely exhaustion of Title VII administrative remedies is not jurisdictional. But there remains disagreement about whether an employee’s complete failure to exhaust administrative remedies jurisdictionally bars such a claim. In Wilson v. MVM, Inc., No. 05-3204 (3d Cir. Jan. 30, 2007), the Third Circuit holds that failure to exhaust is a prudential rather than jurisdictional bar to litigation, but affirms dismissal of the employees’ case at any rate.

The employees were private-contractor court security officers (CSOs) for federal courts, terminated after imposition of new physical examinations and the addition of disqualifying medical conditions. Under the Rehabilitation Act, as with Title VII, employees of federal agencies must file a charge with the EEOC (29 U.S.C. § 794a(a)(1); 29 C.F.R. § 1614.105). While the employees did file EEOC charges against the contractor MVM, it did not do so separately against the U.S. Marshal’s Service (USMS). The CSOs contended that charges against the USMS would have been futile, considering that the original charges against MVM did not resolve their claims. So the panel had to decide whether the charge-filing requirement was jurisdictional — in which case futility would not be recognized as a defense — or subject to equitable doctrines of estoppel, waiver and tolling.

The panel found that exhaustion was not jurisdictional. So holding, it acknowledged a direct split with the reasoning on Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006): “As an initial matter, the fact that an exhaustion requirement is contained within statutory language does not mandate its jurisdictional nature. In Buck v. Hampton Township school District, 452 F.3d 256 (3d Cir. 2006), we found that the exhaustion requirements of the ADA were prudential, despite the fact that they were statutory prerequisites to filing suit. Id. at 262. Further, it seems unlikely that, although explicitly adopting Title VII’s exhaustion requirements, Congress intended to change their nature from prudential to jurisdictional. We therefore find that Waiters is controlling, and the exhaustion requirements of the Rare prudential.” Nevertheless, the panel also found that the CSOs presented no factual allegations of futility in their complaint and affirmed dismissal of their claims.

Friday, January 26, 2007

Two cases yesterday affirmed judgment for employers on the Faragher/Ellerth defense to liability in a sex harassment case, and the kindred Kolstad defense against punitive damages.

The Seventh Circuit affirmed summary judgment in Jackson v. County of Racine, No. 05-4070 (7th Cir. Jan 25, 2007). It rejected the district court’s original ground for dismissal, that the supervisor’s alleged behavior toward four female employees (in the county Child Support Division) was not severe or pervasive enough to constitute harassment. At least two of the plaintiffs had established that their supervisor, day to day, kissed, grabbed, touched and commented on their appearance. The panel disaffirmed the suggestion “that a working environment must be ‘hellish’ before a Title VII suit can succeed. The Supreme Court’s decision in Harris [v. Forklift Sys.] establishes that something short of the Ninth Ring may violate the statute . . . We trust that in the future counsel will avoid the use of a single, overwrought word like ‘hellish’ to describe the workplace and focus on the question whether a protected group is experiencing abuse in the workplace, on account of their protected characteristic, to the detriment of their job performance or advancement.” Nevertheless, the employer prevailed on the alternative ground that the county had taken reasonable steps to prevent or correct any harassment and that, once the harassment was reported (four months into the offensive behavior), the supervisor suffered a demotion and cut in pay as punishment.

Also in Hardman v. Autozone Inc., No. 05-3347 (10th Cir. Jan. 25, 2007) (unpub.), the employee’s race harassment claim was tried twice. The district court granted a new trial, after the employee won a jury verdict ($1 nominal damages and $87,000 punitives), owing to an erroneous instruction on punitive damages. Trial two ended in a judgment for the employer. The Tenth Circuit affirmed, finding that the district court did not abuse its discretion in ordering a new trial and that the employee waived his challenge to the Kolstad defense in the retrial by presenting an inadequate appendix on appeal. A notable detail was that one admitted act of harassment, the use of the phrase “what’s up, my nigger?”, also cropped up in Canady v. Wal-Mart Stores, Inc. , 440 F.3d 1031, 97 FEP 1133 (8th Cir. 2006) — although in that opinion the word was rendered (more accurately, if no less offensively) “nigga.” It’s a catch phrase from a Jackie Chan-Chris Tucker movie, “Rush Hour,” and it seems that some white folks think it’s hilarious to use it on their African-American co-workers.

Tuesday, January 23, 2007

When no one in management takes responsibility for a decision to rescind a job offer to a disabled applicant, the result is an award of punitive damages, in Chalfant v. Titan Distribution, No. 06-1414 (8th Cir. Jan. 22, 2007). Affirming a jury award for punitive damages in a failure-to-hire case, the court notes (as the record in such cases often reflects) that the managers had been trained that discrimination against the disabled violated state and federal law. Indeed, the Eighth Circuit even took notice that “Titan also had knowledge of the federal disability discrimination laws because it had been a defendant in two federal disability discrimination cases that were ultimately appealed to our circuit.”

There was also evidence that the company altered the applicant’s exam results from pass to fail. The coup de grace was the employer’s maladroit defense of its actions:

“Titan’s inconsistent behavior at the time of the decision and its inability to explain its behavior could lead a reasonable jury to infer that Titan knew it might be acting in violation of federal law. In short order, Titan accepted that Chalfant passed his physical, notified him that he would be hired, changed the results of his physical to “failed” and notified him that he would not be hired. Until [manager] Luthin’s sudden memory improvement at trial, no one at Titan could say who made the decision to alter the outcome of the physical examination from ‘pass’ to ‘fail,’ and no one from Titan ever explained the impetus for that change. Instead, each person simply denied that he or she had any involvement at all in the decision not to hire Chalfant. A reasonable jury could infer that this unusual decision-making process occurred because Titan was aware at the time it decided not to hire Chalfant that it ‘may [have been] acting in violation of federal law.'”

The punitive award — on top of a $60,000 compensatory award — was $100,000, affirmed in full on appeal.

Monday, January 22, 2007

De Jesús v. LTT Card Services, Inc., No. 06-1907 (1st Cir. Jan. 19, 2007) poses what the court terms an issue “new to our circuit, of whether shareholder-directors of a close corporation may be ’employees’ for purposes of the 15-employee requirement for determining whether a corporation is a covered ’employer’ under certain federal anti-discrimination laws.” Following the lead of Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (2003), the panel reverses the summary judgment entered for the employer who (it transpired on the record) deliberately failed to identify two individuals in its payroll records, Jorge Pagán and Ibrahim Baker, because it deemed them shareholder-directors. The payroll forms were the only evidence presented by the employer on the motion.

The panel found first that, following the “payroll method,” an inference of an employment relationship may be drawn from the presence of two individuals on the payroll. Second, under agency law, the panel found that the district court could not rely solely on the employer’s self-declared, unverified statement that the two individuals were partners. Because the six-factor standard set out in Clackamas Gastroenterology is fact-sensitive and non-exclusive, the court held that management “authority does not necessarily entail a right to control” and that the record required further development to determine which side of the line Messrs. Pagán and Baker fell. The case was remanded for the purpose.

Friday, January 19, 2007

Five EEO decisions published Thursday result in (mostly) good news for twenty employees, and disappointment for two.

EDS Corp. v. Donelson, No. 06-1211 (6th Cir. Jan. 18, 2007): Two plaintiffs entered into a post-employment arbitration agreement with their former employee and pursued race discrimination claims against it, resulting in awards of $95,000 damages/$39,506 attorney fees for employee Donelson and $35,000 damages/$20,696 fees for employee Lotts. Now its the employer’s turn to complain about the unfairness of the arbitration in a bid to overturn the awards. But the Sixth Circuit affirms the district court’s order denying EDS’s petition to vacate the awards. The court turns back al challenges, holding that (1) for a post-dispute agreement to arbitrate, under the forum law (Michigan), there was no obligation for the panel to issue written findings; (2) EDS waived its challenge to the timeliness of the employees’ requests for attorney fees; and (3) no manifest error of law was established “in light of the undisputed facts that [a supervisor]’s cubicle constrained a black-faced doll suspended by its neck and that [he] participated in the terminations of four African-American and no Caucasian employees during the period in which Donelson and Lotts were fired.” (Special word for the panel: the opinion was published within six weeks of argument, even with the three intervening holidays. Thanks for the dispatch!)

Tuttle v. Metropolitan Gov’t of Nashville, No. 05-6471 (6th Cir. Jan. 18, 2007): The panel reverses judgment as a matter of law for an employer in an ADEA discrimination/retaliation case, orders reinstatement of $199,200 jury verdict for the former employee, and holds that the employer forfeited its conditional new-trial motion by filing beyond the statutory 10 days. The case, from the sound of it, was a very close call. The employee was supposedly fired for miscellaneous reasons (“poor social skills,” “poor work habits,” and “lack of honesty”), which she unsuccessfully grieved to the local civil service commission. (She was cited for, among other things, “creat[ing] serious employee problems over ownership of a candy dish”!) But the employee had her own tale to tell, including her replacement by a younger “temporary” employee, that another younger employee who received a comparably poor evaluation was not fired, that the employer spun inconsistent explanations for its adverse actions, that she was subject to age-biased statements about the office and that adverse actions were taken against the employee starting just nine days after the agency had notice of her complaint. In sum, the panel finds sufficient evidence to support the verdict, and rejects a companion argument that the jury instructions were in error.

Douglas v. J.C. Penney Co., No. 06-1606 (1st Cir. Jan 18, 2007): In a Title VII discrimination case filed by a menswear salesman, the panel affirms summary judgment where the employee’s “performance evaluations showed not only subjective evaluations of poor performance, but also that [he] consistently failed to meet the numerical sales and inventory targets set for him on a yearly basis,” and there was no evidence that white or female employees were treated more forgivingly. (The panel spares another double-spaced page to dispense with harassment and retaliation claims.)

Roney v. IDOT, No. 05-3382 (7th Cir. Jan. 18, 2007): In a multi-count Title VII case, the panel affirms summary judgment, finding that (1) the plaintiff’s demotion claim was time-barred under Morgan; (2) the timely-charges activity were not materially adverse (being assigned to inspect painting operations, placement on a “performance plan,” being denied an “exceptional performance merit raise,” being threatened with termination, two disciplinary actions, and a potpourri of other gripes); (3) that the above behavior was not so intolerable that it amounted to a hostile work environment or constructive discharge.

Alexander v. City of Milwaukee, No. 06-1505 (7th Cir. Jan. 19, 2007): Seventeen white, male police officers claimed they were held back in promotions because of race and sex — in violation of Equal Protection, § 1981 and Title VII — and a jury awarded damages to each of them, including compensatory awards and a $102,000 punitive damage kicker. The record established that of the 41 persons promoted to captain by the department chief, Arthur Jones, some women and minorities were promoted more quickly than comparable white males. Although the city had operated under a consent decree governing hiring of officers, there was no decree concerning promotions.

On appeal, the panel affirms liability. It denies qualified immunity to the commissioners and chief and made and approved the promotions, finding that the Equal Protection rights of the officers were clearly established under Croson and Adarand at the time of the promotions. Moreover, though the parties allowed the widening diversity in the officer ranks was a compelling interest in law enforcement, the informality and lack of accountability of the chief’s promotion system lacked “narrow tailoring”:

“There simply is no evidence in the record of the actual content of their policies-policies that we must examine under the most searching form of judicial scrutiny. A race-conscious promotion system with no identifiable standards to narrowly tailor it to the specific, identifiable, compelling needs of the municipal department in question cannot pass constitutional scrutiny.”

The city was found liable separately under Title VII as the employer. That accomplished, the court then proceeded to break apart the damage award, finding that the judge mishandled the “lost chance” doctrine that prevails (in the Seventh Circuit) in competitive promotion cases such as this one. Given the numbers (41 promotions, 17 plaintiffs), it was not probable that all of the seventeen would have been elevated, and the jury should have been instructed to determine how the officers would have fared against the qualified pool of promotion candidates as a whole, and apportion the award of damages based on the probability of success. Instead, the judge allowed the jury to award damages based on the “percentage chance that each Plaintiff would have been promoted to captain of police . . . keeping in mind other qualified Plaintiffs” on each date of discrimination. The district court was also held to err in not allowing overtime and flextime paid to the officers as an offset against back pay, the calculation of front pay, and the failure to appropriately apportion punitive damages among the defendants according to relative fault.

Thursday, January 18, 2007

In Gilliam v. SC Dept of Juvenile Justice, No. 05-1995 (4th Cir. Jan. 16, 2007), summary judgment was affirmed on the ground that acts of harassment alleged by the employee (unfair write-ups for attendance, picayune complaints about performance, and even a claim of false imprisonment and assault by a manager) were not shown to be “based on race.” Apart from the absence of outright racial animosity, the employee also supposedly failed to identify white comparators or to provide sufficient detail to ascertain whether a racialist inference could otherwise be drawn. Declarations by African-American co-workers who allege that same manager treated them more harshly than the white co-workers were also found to have too little detail to be probative. Thus reminding employees’ counsel of the overriding importance of working dates, names and occasions into the witness affidavits.

Among unpublished opinions, here’s a reversal of an order dismissing an pro se employment discrimination complaint for failure to state a claim. Wallace v. Federated Dept Store, No. 06-3286 (3d Cir. Jan. 16, 2007) . Though affirming dismissal of claims of race discrimination under 42 U.S.C. §§ 1983, 1985 and 1986 (and, I would guess, the plaintiff blew the limitations period under Title VII or any state law equivalent), the court found just enough references to section 1981 to scrape together a notice-pleading claim under that statute.

Wednesday, January 17, 2007

In spite of a defense so mismanaged that the district court entered a default judgment for plaintiff as a sanction, eventually the plaintiff managed to lose his Title VII case anyway. In Yong-Qian Sun v. Board of Trustees, No. 06-2437 (7th Cir. Jan. 16, 2007) , the district court — upon granting a third set of sanctions against defense counsel, for failing to answer discovery — struck the pleadings of all defendants, defaulted them, and ordered a damages-only trial for the employee. And on a motion to vacate the default, the district court declared its open disbelief in defense counsel’s various explanations for its non-compliance with discovery orders, in particular rejecting lead defense counsel’s contention that “medical conditions from which he suffered interfered with his ability to properly manage the defense to the defendants’ detriment.”

Though finding no “good cause” to vacate the default, the district court granted the defendants relief owing to the “interest in having cases decided on the merits and . . . that sanctions lesser than default may be appropriate in this case.” The Seventh Circuit affirms the order reviving the defense on the alternate ground that the original default itself was an abuse of discretion under Fed. R. Civ. P. 55(a). “Instead of entering a default, punishing the defendants and giving the plaintiff a windfall, the district court should have imposed increased monetary sanctions against the attorneys who had caused the discovery delays.”

Turning to the merits of the case (a racial denial of tenure claim), the court holds that a racial comment by a single member of the Promotion and Tenure Committee (named Greene) and a track record of promoting only white candidates — though ordinarily deemed circumstantial of discrimination — could not be imputed to the defendants. “The numerous levels of review, particularly those conducted by independent and University-wide committees broke any connection between Greene’s possible discriminatory motive and the ultimate decision.” Under the pretext method of proof. moreover, “the University’s proffered reason is nondiscriminatory, as it identifies weaknesses in Sun’s dossier related to funding, scholarship, and supervision of graduate students.”

Thursday, January 11, 2007

Four freshly published EEO opinions, two from jury verdicts, one on summary judgment and one dismissal on subject matter jurisdiction grounds. Employees and management each take two wins.

In Humphries v. CBOCS West, Inc., No. 05-4047 (7th Cir. Jan. 10, 2007) , the Seventh Circuit backs off of some improvident language in a prior decision, Hart v. Transit Mgt. of Racine, 426 F.3d 863 (7th Cir. 2005), and holds anew (2-1) that an employee may state a claim for retaliation under 42 U.S.C. § 1981. The panel majority uses the advent of Jackson v. Birmingham Bd. of Ed., 544 U.S. 167 (2005) (finding an implied cause of action for retaliation under Title IX), as occasion to reconsider the Hart dictum that no such claim existed under section 1981. Chief Judge Easterbrook rips into the majority decision with his characteristic mordacity.

In Crumpacker v. State of Kansas, No. 04-3266 (10th Cir. Jan 10, 2007) , the Tenth Circuit affirms a jury verdict in favor of a Title VII sex discrimination plaintiff. The principal issue on appeal was whether the employee — the division director of a state agency — was an exempt “appointee on the policy making level.” 42 U.S.C. § 2000e(f). The court affirms the district court’s holding that she was not exempt because, under Kansas state law, the secretary of the department — an unelected figure — made the appointment. Title VII requires that an exempt employee be appointed by an elected official, not his or her cabinet officers. State law, according to the panel, “plainly states that Crumpacker served ‘at the pleasure of the secretary,’ and it is the Secretary who made the decision to fire her. Based on this evidence, we cannot find that the district court erred in concluding that [Secretary] Franklin, not the Governor, appointed Crumpacker.”

A girls’ athletic coach complaining of Title VII retaliation won at a jury trial, but lost the judgment on appeal on sufficiency-of-the-evidence grounds. Adams v. Groesbeck Ind’t school Dist., No. 05-50362 (5th Cir. Jan. 9, 2007). To wit, the employee failed to show that when he sought to return to this position — after settling a Title VII action with the district — the district had an available coaching job for him to fill. The coach’s duties had already been assigned to a long-term substitute. While the plaintiff’s spouse (another coach in the same district) testified that the school could have used an additional coach, and an athletic director supposedly said that the plaintiff would never be hired because of the lawsuit, the fact remained that no additional position was created. Hence no retaliation and no claim; judgment for the district rendered.

Finally, in Hollins v. Methodist Healthcare, No. 05-6301 (6th Cir. Jan. 10, 2007) , the court holds that resident in a religious hospital’s clinical pastoral education program falls within the “ministerial exception” projected by the First Amendment into the civil rights laws (here, the Americans with Disabilities Act), and the employer did not (or, according to the concurring judge, could not) waive that immunity.

Wednesday, January 10, 2007

Slim pickings today. In Robinson v. Lockheed Martin Corp., No. 06-1704 (3d Cir. Jan. 9, 2007) (unpub.), the court holds that the employee failed on summary judgment to meet his burden to show that his “seizure disorder” placed a substantial limitation on one or more major life activities. The panel joins other circuits that hold, inter alia, that driving is not a major life activity. Nor did the employee demonstrate that the employer regarded his disorder as a disability because his supervisor recommended that he take FMLA leave, “noting that ‘disability’ under the AD and ‘serious health condition’ under the FMLare different concepts that must be analyzed separately and that the leave portions of the FMLare distinct from the reasonable accommodations obligations under the ADA” (citing Vincent v. Wells Fargo Guard Servs., Inc. of Fla., 3 F. Supp. 2d 1405, 1420 (S.D. Fla. 1998) ).

Tuesday, January 9, 2007

Here’s a hodgepodge of EEO news you can use. Last Friday, January 5, 2007, the Supreme Court granted cert in an employment discrimination case, EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, decided below at 450 F.3d 476, 98 FEP 571 (10th Cir. 2006). This raises the important agency question of when an employer may be held liable for carrying out an adverse employment decision where at least one employee with input into the action possessed a discriminatory motive. The case will be argued and decided this term, so anyone litigating a case raising this issue — and facing a hostile circuit rule — should prepare to preserve this issue in the district court (or, if an appeal has already concluded, by way of a cert petition).

The court on Monday, January 8, 2007 also denied cert in some other employment cases, including Fasano v. Federal Reserve Bank of New York, 457 F.3d 274, 18 A.D. Cases 321 (3d Cir. 2006) (circuit split over whether Federal Reserve Act, 12 U.S.C. § 341 (Fifth), which allows banks to terminate employees “at pleasure” preempts state statutory employment law); and Bastien v. The Office Of Senator Ben Nighthorse Campbell , 454 F.3d 1072, 98 FEP 699 (10th Cir. 2006) (question of whether employee’s cause of action against Congressional office ceased to exist or became moot when U.S. Senator left office, decided adversely to the employer in the district court, held not to meet pre-conditions for collateral order appellate review).

Finally, an unpublished EEO decision holds that a district court erred in deciding in a hiring case that two employees were not “similarly situated” for purposes of the burden-shifting Title VII prima facie test — the candidates were similar in tenure, background and recency of experience — but affirms summary judgment on the ground that the employee failed to establish that the various reasons proffered by the employer for the hiring decision was not a pretext for discrimination. Plumb v. Potter, No. 06-1017 (6th Cir. Jan. 8, 2007) (unpub.)

Monday, January 8, 2007

The Tenth Circuit last Thursday night issued two EEO opinions. In Herrera vs. Lufkin Industries, No. 04-8089 (10th Cir. Jan 4, 2007), the plaintiff lost some claims on summary judgment and the rest at trial, but the panel majority plucks up and dusts off for remand a Title VII national origin harassment claim which it finds a “close question” worthy of a jury trial. The record evidence included several discrete incidents of harassment by service center manager (Buddy Moore), including refusing to shake employee’s hand, having employee’s direct supervisor assign him to work with Mexican customers, and complaining to the supervisor about the condition of the employee’s truck (which he said was “Mexicanized”). Moreover, several times a week the manager referred to the employee as the “Mexican” or the “fucking Mexican.”

The issue that largely divides the majority and dissent is that many of the manager’s bigoted remarks were uttered out of the employee’s earshot and disclosed to him only later. The panel majority finds this issue a dispute of fact, rather than law, and notes: “The dissent speculates that, instead of stating that ‘[t]he insults that were identified were never . . . divulged to the plaintiff,’ the district court meant to say that the insults were never ‘directed’ toward Herrera. Dissent at 5 n. 11. Although we cannot speculate as to what the district court really meant to say, apart from the language the court in fact used, the word the district court actually used, ‘divulge,’ makes more sense in light of the sentences immediately following that statement-‘In fact, his friends, knowing of these insults, largely concealed them from him. It cannot be a hostile work environment if he doesn’t know about them.'” The panel majority also observes that:

“It cannot be, as the dissent suggests, see Dissent at 4-5, that the fact that the harasser makes racially derogatory references about the victim to others shields the harasser from any Title VII liability. This is not a case where Herrera was completely unaware of Moore’s racially derogatory references about Herrera. Rather, viewing the evidence in the light most favorable to Herrera, he clearly was aware of these references and they were upsetting to him. And these racially derogatory references served to buttress the racially charged treatment Moore specifically directed at Herrera.”

More interesting still is the partial dissent from visiting U.S. District Court Judge Paul Cassell from Utah, a cri de coeur from a beleaguered trial judge: “Before trying this case, the district judge pruned it down by granting summary judgment for Lufkin Industries on Herrera’s three weakest claims – an intentional infliction of emotional distress claim, a breach of contract claim, and a racially hostile work environment claim. The matter was then tried to a jury for eleven days, eight of which were devoted to the plaintiff’s case. The jury found against Herrera for Lufkin on all claims presented to it. The majority now sustains the jury verdict and agrees that the district court properly dismissed the emotional distress claims and the breach of contract claim. It nonetheless remands this case for what may end up being another eleven-day trial on one of Herrera’s marginal claims – the hostile work environment claim.”

There was another nonprecedential opinion, Jenkins vs. Educational Credit, No. 05-2007 (10th Cir. Jan. 4, 2007) (unpub.), in which the plaintiff in a Title VII retaliation case complained that the jury was misconstructed that, “[i]n order for an informal complaint by plaintiff to a superior to be considered protected activity, plaintiff must prove by a preponderance of the evidence that, one, she subjectively believed, in good faith, that defendant subjected other employees to unlawful discrimination; and two, her belief was objectively reasonable in light of the facts.” Although the panel is not convinced that the instruction is erroneous, it ultimately rests the affirmance on waiver under Fed. R. Civ. P. 51 and the absence of plain error.

Friday, January 5, 2007

The First Circuit serves a reminder in Velazquez-Garcia v. Horizon Lines of PR, No. 06-1082 (1st Cir. Jan. 4, 2007) , that under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. § 4301 et seq., the burden of proof is the reverse of the ordinary Title VII case, with the employer bearing the burden of proving that the legitimate, non-discriminatory reason furnished for the adverse action is not pretextual.

Reversing summary judgment in a case involving a U.S. Marine reservist, the court observed that the “language of the statute and the legislative history make clear that the employee need only show that military service was ‘a motivating factor’ in order to prove liability, unless ‘the employer can prove that the [adverse employment] action would have been taken’ regardless of the employee’s military service. 38 U.S.C. § 4311(c) (emphasis added).” This is in contrast to the standard analysis under 42 U.S.C. § 2000e-2(a) of Title VII; “under USERRA, the employee does not have the burden of demonstrating that the employer’s stated reason is a pretext. Instead, the employer must show, by a preponderance of the evidence, that the stated reason was not a pretext . . . .” The court does not mention, oddly enough, that under 42 U.S.C. § 2000e-2(m) and -5 (g) (2)(B) of Title VII, the 1991 Act erected the same “motivating factor” standard for employees alleging discrimination, which appears to have gone mysteriously dark in the aftermath of Desert Palace v. Costa.

Among unpublished decisions, Rivera-Martinez v. Comm. of Puerto Rico, No. 05-2605 (1st Cir. Jan. 4, 2007) (unpub.), affirms summary judgment in a Title VII harassment/retaliation case, finding that (1) two incidents of touching in the space of year is neither severe nor pervasive sex harassment; and (2) additional co-worker harassment allegedly suffered after the employee lodged an internal sex discrimination complaint was not sufficiently definite to establish an adverse action.

Thursday, January 4, 2007

Kampmier v. Emeritus Corp., No. 06-1788 (7th Cir. Jan. 3, 2007) is out of the gate as the first newly-published EEO decision of 2007. The employee pled a panoply of EEO claims, summary judgment was granted on all of the federal counts (with the supplementary state law counts dismissed without prejudice), and with Wednesday’s decision only the sex harassment claim survives.

The fact pattern is “same sex” female-on-female harassment, though the panel makes no particular note of that fact, other than to identify the alleged harasser (Lena Badell) as a lesbian. Ms. Kampmier was a nurse and Ms. Badell was her supervisor. The harassment took the form of regular physical handling of Kampmier by Badell (two-armed hugs every other day, lap-sitting at least ten times and numerous gropings), together with many sex-charged comments by Badell (about the supervisor’s sexual conquests and her carnal interest in Kampmier). The court held that (1) a jury could find the above-conduct sufficiently severe to constitute harassment; (2) the district court erred in holding that the employee was not subjectively offended as a matter of law (with disputed evidence that she had complained through three supervisors and asked Badell herself to “knock it off”); and (3) there was also a triable issue of fact about whether the employer could satisfy its affirmative defense under Faragher/Ellerth when the employee made repeated complaints but the employer took no steps to restrain Badell’s behavior.

The Ninth Circuit also republished Syverson v. IBM Corp., No. 04-16449 (9th Cir. Jan. 3, 2007) (previously published at 461 F.3d 1147 (9th Cir. 2006)), with modest changes on motion for rehearing. That panel opinion joined the Eighth Circuit’s decision in Thomforde v. IBM Corp., 406 F.3d 500 (8th Cir. 2005), in finding that IBM’s release — used in a nationwide reduction-in-force — was invalid and unenforceable as a matter of law under the federal Older Worker Benefits Protection Act, because its confusing phrasing was not calculated to be understood by an ordinary employee.

Finally, the new Fed. R. App. P. 32.1 effectively kicks in this week, requiring the U.S. Courts of Appeals to permit parties to cite to unpublished or non-precedential opinions. Most of these orders are brief, unsigned affirmances of district court decisions. But in honor of the new rule, I will start today to note in thumbnails (as below) such unpublished appellate decisions as might be of interest to EEO practitioners.

Gary v. Hale, No. 06-12545 (11th Cir. Jan. 3, 2007) (unpub): Title VII retaliation. Summary judgment affirmed. The district court erred in holding that the employee failed to present a genuine issue of material fact about causation in her prima facie case. Nonetheless, summary judgment is affirmed on the alternative ground that the employee presented no genuine issue on the third-stage pretext issue.

Wednesday, January 3, 2007

With the federal courts again closed (in honor of the late President Ford), here are two more opinions issued during the winter holiday interregnum.

Pruitt v. City of Chicago, No. 05-2933 (7th Cir. Dec. 28, 2006) helpfully lays out an approach to resolving when and how to apply laches to hostile-work-environment claim, an approach commended but not fleshed out by the Supreme Court in Nat’l R.R. Passenger Corp. v. Morgan, 541 U.S. 369 (2004). Here, the claim — involving ten (and as many as 40) black and Latino employees allegedly harassed by a single foreman (Anthony Jason) — stretched back 20 years to the present day. The panel affirmed the district court’s finding that the claim was at least in part barred by laches: the foreman had retired, witnesses were dead or disabled, records were destroyed.

The panel differed with the district court’s conclusion that the delay compelled dismissal of the entire action, holding instead that an equitable approach would carve out the more recent claims for litigation while dismissing the stale claims:

“Dismissing the whole suit because it is no longer feasible to litigate about the most ancient of the asserted wrongs could be functionally equivalent to giving the employer an easement across Title VII. By violating the statute for long enough, the employer would acquire a right to continue indefinitely. That’s the upshot of Chicago’s position and the district court’s holding: once Jason had made plaintiffs’ lives miserable for a decade or so, laches would bar all litigation no matter what Jason did in the future. That can’t be right. It would be like saying that, if Jason had punched Bernard Pruitt (the lead plaintiff) in the nose every week, he could do so for the rest of Pruitt’s life if two years passed without suit after the first punch. (Two years is the statute of limitations in Illinois for personal-injury suits.)”

Sadly for plaintiffs, though, their counsel (according to the opinion) did not anticipate this possible solution and argued all-or-nothing in the district court. “We hold the parties to the positions they preserved in the district court, which means that we need not attempt to draw a line between recent events (unaffected by laches) and older ones where the employer’s ability to defend has been undermined.”

In Burnett v. LFW, Inc., No. 06-1013 (7th Cir. Dec. 26, 2006), the panel reverses summary judgment for an employee who allegedly suffered interference and retaliation under the Family and Medical Leave Act, but affirms summary judgment on his ADA claim. The district court granted summary judgment on all claims on the ground that the employee furnished insufficient notice of his alleged impairment (i.e. then-undiagnosed prostate cancer) to his employer. The Seventh Circuit rejected this holding, concluding that the accumulation of four-months’ worth of complaints about the employee’s health and need for leave constituted sufficient notice to the employer. But regarding the ADA claim, the panel affirmed on the alternative ground that the employee failed to show that he suffered (or was regarded as suffering by the employer) a substantial limitation in any major life activity.

Tuesday, January 2, 2007

Here a couple of leftover opinions from the slow period around the holidays, both involving law enforcement employees.

In Castro v. Sec’y of Homeland Security, No. 04-60917 (11th Cir. Dec. 22, 2006), the court holds that the Rehabilitation Act, which protects federal employees generally, must give way to the more exacting physical performance standards for the hiring of Transportation Security Administration (TSA) security screeners set forth in the Aviation and Transportation Security Act (ATSA), 49 U.S.C. § 44935. “The plain language of the ATSA indicates that TSA need not take the requirements of the Rehabilitation Act into account when formulating hiring standards for screeners. Congress directed TSA to establish hiring criteria (including physical standards at least as strenuous as those in subsection (f)) for security screeners ‘[n]otwithstanding any provision of law.’ 49 U.S.C. § 44935(e)(2)(iii), (iv). And it stated that TSA has authority, ‘[n]otwithstanding any other provision of law,’ to ’employ, appoint, . . . and fix the . . . terms, and conditions of employment’ for security screeners. 49 U.S.C. §44935 note.”

In Young v. Township of Green Oak, No. 05-2633 (6th Cir. Dec. 28, 2006), the panel affirms dismissal of a lawsuit by a police officer alleging (among other things) discrimination under 42 U.S.C. § 1983 and the ADA, as well as state law claims, on grounds of res judicata, because the township, after “receiving testimony from several witnesses and considering oral and written arguments from the lawyers for both parties,” decided to terminate the officer who supposedly did not meet the physical demands of the work. The court held that prior litigation between the parties concerning the township’s failure to return the officer to work (filed in 1995 and 1998) covered the same subject matter as the township’s 2003 termination decision challenged in the present lawsuit.



Daily Developments in EEO Law
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Recent Updates

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

September 29, 2010
Newberry v. Burlington Basket Co., No. 09-3082 (8th Cir. Sept. 28, 2010)

September 08, 2010
Payne v. Salazar, No. 09-5291 (D.C. Cir. Sept. 7, 2010)

September 06, 2010
EEOC v. Prospect Airport Services, No. 07-17221 (9th Cir. Sept. 3, 2010)

August 31, 2010
Hatmaker v. Memorial Medical Center, No. 09-3002 (7th Cir. Aug. 30, 2010)


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