February 2007

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

Daily Developments in EEO Law
by Paul
Mollica © 2007

Tuesday, February 27, 2007

Zamora v. Elite Logistics, Inc., No. 04-3205 (10th Cir. Feb. 26, 2007) (en banc) began as an employer’s effort to audits workforce for compliance with U.S. immigration laws, escalated into an episode between a defiant employee and a short-fused supervisor, and vaulted into federal court as a Title VII race and national origin case. Some six years later, the en banc Tenth Circuit finally rings an uneasy end to the action — failing to reach a majority on one of the claims — while exposing rifts in the circuit’s approach to summary judgment in employment discrimination cases.

Elite hired Zamora, a Mexican citizen and U.S. permanent legal resident, upon his submission of a Social Security card and other documentation of his status in compliance with the Immigration Reform and Control Act (IRCA). Reacting to a rumored federal investigation of Elite’s warehouses, the company examined and discovered that some 35 employees had anomalies about their SSN’s, Zamoramong them. When the company demanded that the 35 employees submit additional documentation of their immigration status within ten days of written notice, most entirely failed to respond.

Human resources manager Larry Tucker initially suspended Zamora when he also missed the ten-day deadline for submitting documentation. When Zamora tried to get right with the company by submitting a Social Security earnings statement (listing a birth date different than reported on the employee’s records) and a naturalization certificate, Tucker refused them both. Zamora was invited to return only when he submitted a certification from the SSA substantiating his information.

But by the time everything was set straight, Zamora was past fed up. He walked into Tucker’s office and “handed him a letter stating that ‘[b]efore I could consider going back to work I need from you two things: 1) an apology in writing, and 2) a complete explanation of why I was terminated. Please send a response to my home.” Tucker refused to apologize. As the majority summarized, “Zamora testified that when he gave Tucker the letter requesting a written explanation and apology, Tucker grabbed it out of Zamora’s hand told Zamora he was fired ‘because [Tucker] was not apologizing to anybody.'” Zamora eventually filed an EEOC charge and then a lawsuit challenging both the suspension and the termination.

Judge Ebel cobbled together a brief opinion for the en banc court. A 9-5 majority affirmed summary judgment on the termination claim, concluding that Zamora failed to rebut the employer’s proffered explanation for terminating him: that it believed Zamora would not return to work unless Tucker apologized to him. The majority observed that “Tucker’s strong reaction to Zamora’s request for a written apology and explanation,” whether warranted or not, did not imply that Zamora was terminated “because [he] was a Mexican-born Hispanic.”

Yet the bench split 7-7 over the suspension claim, compelling affirmance of the district court without an opinion of the court. Nonetheless, separate opinions flourished: Judge McConnell (writing for himself and Judges Kelly, O’Brien, Tymkovich and Gorsuch) explained their support for the district court’s summary judgment; Judge Hartz (with Judge Tymcovich) and Judge Gorsuch submitted brief concurrences; and Judge Lucero (joined by Judges Holloway, Henry, Briscoe and Murphy) dissented. All in, the opinions total some 78 pages in length.

The judges squared off over whether Tucker admitted in a deposition that he was less concerned with Elite’s ICRA obligations (the proffered reason for Zamora’s suspension) than with whether Zamora was using the correct SSN. Judge McConnell concluded that Tucker’s deposition testimony, though facially disturbing, in context constrained no critical concession. He answered the dissent’s criticism that the concurring judges had essentially weighed inferences impermissibly in favor of the movant:

The principle that a court must resolve disputed facts in favor of the nonmoving party does not license the court to disregard undisputed facts, even regarding “context,” if those facts would preclude a reasonable jury from finding discrimination. In this case, the context makes clear-and no reasonable jury could find otherwise-that Mr. Tucker was concerned about Mr. Zamora’s Social Security number issues as part of the company’s IRCA compliance efforts. There is nothing in Mr. Tucker’s statements, read in context, that would warrant an inference that his concerns about Mr. Zamora’s SSN were a pretext for discrimination.

Judge Lucero’s dissent rejoined: “The contextual hues lent by the concurrence amount to impermissible inferences drawn in favor of Elite. Although these arguments may persuade a jury, our role as judges at the summary judgment stage requires us to accept Zamora’s competing, plausible interpretations of the evidence.”

Monday, February 26, 2007

A federal employee who achieves an EEO settlement with an agency but believes the employer is in breach may file an action to enforce the contract or reinstate the complaint (29 C.F.R. § 1614.504(a)). In Harris v. Brownlee, No. 06-2516 (8th Cir. Feb. 26, 2007), the Army Corps of Engineers — in settlement of a Title VII race discrimination case — committed to resubmit the classification of the plaintiff’s employment grade to an independent classifier. But when the classification came out the same way a second time, the plaintiff (now retired, but evidently looking for back pay) concluded that the fix must be in. The Eighth Circuit affirms summary judgment, nonetheless, finding that the employee obtained what he bargained for: a full desk audit, based on an interview of the employee and supervisor and review of the Office of Personnel Management. “Based on the circumstances of this case and the independent review of Harris’ position performed by the classifier, we conclude that Harris received the benefit of the bargain that he ‘reasonably expected,’ Restatement (Second) of Contracts, § 241(a) (1981), when he entered into the settlement agreement. The district court did not err when it determined that the Corps did not materially breach the agreement.”

Thursday, February 22, 2007

So, in the wake Burlington Northern v. White, how else may employers defend against retaliation claims? For one, by closing the spigot on the category of protected activities (see Jordan v. Alternative Resources Corp., 458 F.3d 332, 98 FEP 1400 (4th Cir. 2006)). Now the Eleventh Circuit holds in Crawford v. City of Fairburn, Ga., No. 06-13073 (11th Cir. Feb. 21, 2007) that participating in EEOC conciliation does not fall within the Title VII participation clause (42 U.S.C. § 2000e-3(a)): “The ‘informal method’ of conciliation, although an important part of the remedial process, see 29 C.F.R. § 1601.24(a), is distinct from the ‘investigation’ that results in the letter of determination. Conciliation is also not a ‘proceeding’; the statute uses the word ‘proceedings’ to refer to enforcement actions in state courts and agencies and lawsuits in federal courts. See 42 U.S.C. § 2000e-5(c), (d), (f). Because the participation clause protects only participation ‘in an investigation, proceeding, or hearing under this subchapter,’ an employee’s participation in only the conciliation process is not protected activity under that clause.”

Wednesday, February 21, 2007

There haven’t been any new published EEO decisions so far this week, but the Ninth Circuit issued this unpublished opinion: EEOC v. Maricopa County, No. 05-15403 (9th Cir. Feb. 20, 2007) (unpub.) . The panel affirms summary judgment in an ADEA hiring case, finding that even if the decision-maker referred to the employee as “old,” it was apparently a reference to her status as a former employee, and “[b]urn-out, not age, was the unmistakable connotation.” Judge Reinhardt, in dissent, would have found sufficient grounds for a trial (under the indirect method of proof) on the following record: (1) “all three Bureau heads who attended her interview perceived the interview positively”; (2) her prior ” consistently high performance reviews she received during her tenure as a VWA, which complimented her, among other things, on her ‘professional image'”; and (3) the age comment noted above.

Friday, February 16, 2007

The Second Circuit atones for its occasionally bewildering “stray remarks” decisions in Tomassi v. Insignia Financial Group, Inc., No. 05-6219 (2d Cir. Feb. 16, 2007). A 62-year-old Supervisor of Resident Services was terminated, possibly in favor of a 25-year-old new hire (a contested issue of fact). For two years she took regular guff from her supervisor. The panel summarized the record (viewed in the light most favorable to the employee)

“to the effect that throughout the course of her employment with Insignia, [her supervisor Steve] Stadmeyer made frequent references to her age. Stadmeyer would begin sentences with ‘In your day and age . . .’ and suggest that Tomassi related well to and ‘could understand the mentality of’ PCV/ST’s senior residents. Stadmeyer also repeatedly asked Tomassi whether she would be better off retiring so that she could ‘take time off to rest.’ According to Tomassi’s deposition testimony: ‘[H]e would ask me if I ever thought about retiring. He would ask me if I thought I could keep up with some of the work. He asked me if I was tired of working. . . . [W]asn’t it time to retire, did I ever think about retiring. Tired of the commute.’ Tomassi asserted that Stadmayer made such age-related comments to her ‘once a month, [or] once every couple [of] months.'”

While the district court swept these comments into the “stray remarks” dustbin, and granted summary judgment against Tomassi, the panel held the statements probative of the decision maker’s state of mind. It noted that evidence of discriminatory remarks should not be treated in binary “stray”-or-not-“stray” fashion, as the district court had done, though the panel admitted that at times the court of appeals may have encouraged that very sort of adjudication:

“We recognize that our precedents may have been somewhat confusing. In some instances we have found the evidence legally insufficient notwithstanding the incidence of discriminatory remarks. To explain why the evidence was nonetheless insufficient, we noted that the remarks were ‘stray.’ That locution represented an attempt – perhaps by oversimplified generalization – to explain that the more remote and oblique the remarks are in relation to the employer’s adverse action, the less they prove that the action was motivated by discrimination. For example, remarks made by someone other than the person who made the decision adversely affecting the plaintiff may have little tendency to show that the decision-maker was motivated by the discriminatory sentiment expressed in the remark. The more a remark evinces a discriminatory state of mind, and the closer the remark’s relation to the allegedly discriminatory behavior, the more probative that remark will be. Where we described remarks as ‘stray,’ the purpose of doing so was to recognize that all comments pertaining to a protected class are not equally probative of discrimination and to explain in generalized terms why the evidence in the particular case was not sufficient. We did not mean to suggest that remarks should first be categorized either as stray or not stray and then disregarded if they fall into the stray category.” [Citations omitted]

God knows how many summary judgments in the Second Circuit were granted under this misapprehension. Anyway, the court holds here that “[i]nstead of disregarding some of the evidence because of such a classification, the court should have considered all the evidence in the light most favorable to the plaintiff to determine whether it could support a reasonable finding in the plaintiff’s favor.” The case is remanded for an eventual trial (or settlement).

Wednesday, February 14, 2007

Had I not been traveling (or at least trying to travel) east, I would not have missed the Eighth Circuit’s fine decision yesterday in EEOC v. Wal-Mart Stores, No. 06-1583 (8th Cir. Feb. 13, 2007), reversing summary judgment in an ADA hiring case. Wal-Mart declined to employee an applicant (Steven Bradley) with cerebral palsy who uses crutches or a wheelchair, and has limited hand mobility. He twice applied for a “Greeter/Customer Assistant” or cashier position at his local Wal-Mart in July 2000 and February 2001. The reasons he was not hired, and which manager made the final decision not to hire Bradley, were in apparent dispute. Yet the district court granted summary judgment on the grounds that Bradley was not a qualified individual and that, in any event, the reasons given by the employer for turning Bradley down were not pretextual.

The Eighth Circuit holds that Bradley presented a triable issue of fact on his qualifications, having made a “facial showing” of his capacity to perform the jobs with an accommodation. The EEOC’s expert “suggested several accommodations, including a sit-to-stand wheelchair, a drafting-type high stool with armrests for additional balance, a narrow wheelchair, the removal of several inches of the divider beside the check stand to accommodate a regular wheelchair, supplying Bradley with a hand scanner, and installing the convex mirror. For the greeter position, [the expert] recommended that Bradley use an electronic scooter or similar device.” It also reversed the district court’s pretext ruling. The opinion reiterates the standard that the employer’s reasons for its decision must be measured as of the time the decision was made, and that the record constrained testimony showing that the various reasons furnished by Wal-Mart for its decision (doubts about the employee’s availability, alleged holes in the employee’s job history, supposed unwillingness to allow Wal-Mart to contact a current employer) did not or could not have motivated the failure to hire.

The panel also chimes in on the widening split circuit about who bears the burden of proof on the ADA issue of “direct threat,” holding (as have Second, Seventh and Ninth Circuits) that the burden of proving that an employee’s disability poses a direct threat to the employee or others rests on the employer. (The First, Tenth and Eleventh Circuits and maybe the Fifth would place the burden on the employee.) Wal-Mart’s expert testified that Bradley had a history of falling on his crutches, but he also “admitted . . . that his opinion assumes that Bradley would be using crutches, not a wheelchair.” As the panel sensibly concludes, “Wal-Mart has failed to explain how Bradley, using a wheelchair or other similar device, poses any more of a threat than Wal-Mart customers who shop using such devices.”

The EEOC commendably advances civil rights when it pursues cases such as Steven Bradley’s. A result like this in an unforgiving landscape (the store was in Richmond, Missouri, self-declared “Mushroom Capital of the World”, and the Eighth Circuit is a tough forum for employees generally) — given the expense (advancing costs for experts), low stakes (it was a part-time greeter job) and litigation risk (hiring cases are notoriously difficult) — would have been practically unattainable by the private bar.

Tuesday, February 13, 2007

The Fifth Circuit holds in EEOC v. Jefferson Dental Clinics, No. 06-10090 (5th Cir. Feb. 12, 2007) that the Commission –which provided material assistance in an ultimately unsuccessful state-court tort action, claiming intentional infliction of emotional distress, negligent retention, and wrongful discharge on behalf of four plaintiffs — is precluded from seeking monetary relief for a Title VII action filed on behalf of the same plaintiffs in federal court.

It so holds by operation of Texas state-law res judicata principles. The EEOC, among other things, participated in mediation of the state law case and sat as observers at the state court trial. Although finding that the EEOC did not control the state litigation, it concludes (in an interlocutory appeal by the employer) that “the EEOC’s claims arise out of the same subject matter as the state court case” and thus “[t]he three elements of res judicature therefore satisfied with respect to the claims for make-whole relief, and these claims are barred by the doctrine of res judicata.” Although the Commission may seek injunctive relief, under this decision it is barred from pursuing any kind of damages claim.

At a minimum, it would seem that this decision abrades EEOC v. Waffle House, 534 U.S. 279 (2002), directly stopping a government agency from carrying out its enforcement mandate, limiting the remedies available to a virtual nullity (the employees had already left the employer, rendering most injunctive relief impracticable.) The panel even cites approvingly to Justice Thomas’s dissent in Waffle House opinion to support its conclusion. Moreover, the relevant precedent of Montana v. United States, 440 U.S. 147 (1979), would allow preclusion to operate on the sovereign only when the federal government pulls a “laboring oar in the conduct of the state-court litigation,” a degree of control avowedly not established by this record. This decision needs another trip back to the oven before its done.

Monday, February 12, 2007

It is a pity that there must be a circuit split on a point so arcane as whether federal employees enjoy a cause of action against retaliation for complaining about age discrimination. But the First Circuit last Friday decreed that we must, in Gomez-Perez v. Potter, No. 06-1614 (1st Cir. Feb. 9, 2007) , holding that Congress did not graft that specific protection into section 15 of the ADEA (29 U.S.C. § 633a) covering the federal sector: “The absence of statutory language providing a claim for retaliation in § 633a, when compared with the explicit prohibition on retaliation in § 623(d), further supports the conclusion that Congress intended for the ADEA to prohibit retaliation by private employers, but not by federal employers.”

Although the D.C. Circuit found that § 633a provided for a retaliation cause of action in Forman v. Small , 271 F.3d 285 (D.C. Cir. 2001), the First Circuit “respectfully disagree[s],” finding that Congress in other circumstances has proved willing to deny federal employees ” the expansive private-sector provisions of the ADEA extended to federal employees,” such as jury trials and recovery of attorney fees.

While trimming a monetary remedy or a jury trial makes some kind of sense where (as here) the U.S. selectively waives its sovereign immunity, it makes scant sense to deprive public-sector workers of a key EEO protection otherwise available under Title VII and comparable statutes. No word as to why Congress would make such a choice, but there you go.

Thursday, February 8, 2007

It is always heartening to see a mentally disabled employee fight back in a disability discrimination case, and even more so to notch a victory. So three cheers for Wishkin v. Potter, No. 05-4743 (3d Cir. Feb. 7, 2007), in which the court reverses summary judgment in a Rehabilitation Act case where the employee — a mail bagger — was off work for nearly a year while his fitness for duty was in dispute. The district court found for the employer, on the ground that the employee’s own physician furnished a letter to the Post Office stating that the employee was qualified for permanent disability (due to a number of impairments, such as kidney and knee problems), and that plaintiff could not prove he was qualified for the job.

But the Third Circuit found that the record supported another inference: that the supervisor Mary Green placed undue pressure on Mr. Wishkin to obtain such a letter, ostensibly so that he could avoid termination in an impending reduction in force. There was also evidence that “to suggest that a number of similarly situated disabled employees were being convinced to leave their positions at USPS and take permanent disability because they were being told their jobs were to be eliminated in the near future. . . . Therefore, although Wishkin had, in fact, procured a letter from his physician attesting to his inability to continue working (which the District Court deemed dispositive), the circumstances surrounding the procurement of the letter required the District Court to treat Wishkin’s qualification as disputed.”

Wednesday, February 7, 2007

We finally hear back from the Ninth Circuit on the interlocutory appeal of Judge Jenkins certification of the Title VII class action in Dukes v. Wal-Mart Inc., No. 04-16688 (9th Cir. Feb. 6, 2007). The lawsuit challenges nationwide pay and promotion practices at some 3,400 Wal-Mart stores since 1998, said to discriminate against a class of 1.5 million current and former women employees. The decision (though divided) appears a total vindication of the plaintiffs’ case to date.

The court’s conclusions provides grist for the class action employment bar, to be sure, but some of its holdings will positively influence individual Title VII claims as well:

1. The panel majority affirmed the district court’s finding that the record raised “an inference that Wal-Mart engages in discriminatory practices in compensation and promotion that affect all plaintiffs in a common manner.” In particular, it affirmed the admissibility (for Rule 23 purposes) of sociological evidence by Dr. William Bielby and statistical evidence by Dr. Richard Drogin demonstrating a company-wide bias against promoting and compensating women employees equal to men. It also tweaked Wal-Mart’s failure to appeal the exclusion of its own statistical witness (Dr. Joan Haworth) on FRE 702 and 703 grounds. It credited the 120 declarations of anecdotal witnesses in further support of commonality.

2. The panel majority reaffirmed the principle — common to class and individual Title VII cases — that (consonant with the class’s theory of the case) “subjective decision-making is a ‘ready mechanism for discrimination’ and that courts should scrutinize it carefully.”

3. The court held that it was unnecessary for a class to proffer a separate representative for each category of promotions to establish Rule 23(a) typicality: a “lack of a class representative for each management category does not undermine Plaintiffs’ certification goal because all female employees faced the same discrimination.”

4. The panel majority held that injunctive and declaratory relief may predominate in a Title VII case, for purposes of Rule 23(b)(2), even where the proposed equitable relief is monetary (i.e., back pay). It thus split (by implication) with the Fifth and Sixth Circuits, two courts that have more or less categorically barred certification of Title VII cases under Rule 23(b)(2).

5. The panel majority held that a Teamsters model pattern-or-practice case does not require individualized damage hearings for absent class members. It affirmed the class’s proposed use of statistical modeling to estimate and allocate monetary relief, and determine shortfalls of promotions.

6. Another important ruling touching nearly all Title VII cases is the recognition that the 1991 Civil Rights Act channeled disparate treatment claims into “single” (42 U.S.C. § 2000e-2(a)and “mixed” (42 U.S.C. § 2000e-2(m)) motive claims, each with unique remedies and defenses, and the choice of which theory to pursue belongs to the employee.

7. The panel majority affirmed the district court’s plan to award — on a class-wide basis — punitive damages under Title VII. It rejects Wal-Mart’s suggestion that 42 U.S.C. § 1981a(b)(1) compels individual determinations of punitive awards. It also held that a class award could, consistent with due process, be allocated to absent class members (1) who can demonstrate an injury and (2) in proportion to whatever damages they personally suffered.

The only facet of the appeal that the employees did not win was a cross-appeal to expand back-pay relief for the class of women allegedly denied promotions. The panel affirmed the decision to confine back-pay individual class members who presented an objective interest in promotion.

Judge Kleinfeld contributes a short, piercing and frustrated dissent, determined to wrest the halo away from the class lawyers and the seven representative plaintiffs. He concludes, in bitterness: “This class certification violates the requirements of Rule 23. It threatens the rights of women injured by sex discrimination. And it threatens Wal-Mart’s rights. The district court’s formula approach to dividing up punitive damages and back pay means that women injured by sex discrimination will have to share any recovery with women who were not. Women who were fired or not promoted for good reasons will take money from Wal-Mart they do not deserve, and get reinstated or promoted as well. This is ‘rough justice’ indeed. ‘Rough,’ anyway. Since when were the district courts converted into administrative agencies and empowered to ignore individual justice?”

The Ninth Circuit is reportedly accelerating its en banc reviews, so we could be waiting a good long time for the final outcome of this appeal.

Tuesday, February 6, 2007

Can’t hardly figure out what to make of Johnson v. Caudill, No. 06-1281 (4th Cir. Feb. 2, 2007), a fairly routine-sounding sex discrimination case involving a termination, cycled through the framework of section 1983.

The district court denied qualified immunity to a county sheriff who fired a female narcotics detective. The claim germinated in an alleged discrepancy found in a drug-purchase report that she submitted to her superiors. This discrepancy led to her removal from work with the state’s drug task force by one Sergeant Ruffin (not a defendant), and eventually to her termination from her county employment by Sheriff Caudill. The plaintiff also claimed various instances where the sheriff supposedly denied her certain working conditions because of sex. One tidbit of evidence was the sheriff’s response when she told co-workers (after she received a three-day suspension for speeding) that she might file a lawsuit. He called the plaintiff into a meeting “at which time he allegedly told her that he was ‘not afraid of lawsuits’ and would ‘no longer need’ Johnson if she filed suit.” The district court determined that there were disputed facts that precluded summary judgment.

While opinion alone suggests that Johnson’s case is not a very promising suit (let alone in the Fourth Circuit), the panel instead holds that the sheriff was qualifiedly immune from suit because his conduct did not violate the plaintiff’s clearly-established constitutional rights.

“Johnson’s primary contention is that Sheriff Caudill terminated her because of her gender. She does not dispute, however, that Sergeant Ruffin, not Sheriff Caudill, severed Johnson’s ties with the drug task force, leaving her unable to perform the core duties of her position under Sheriff Caudill. Johnson’s assertion that the drug task force should not have released her is irrelevant; instead, the inquiry focuses on whether Sheriff Caudill, when faced with the knowledge that Johnson could no longer participate in the work for which she was hired, acted reasonably in terminating her. We find Sheriff Caudill’s actions reasonable based on Johnson’s dismissal from the drug task force.”

Thus, in spite of the district court’s holding that there were some disputed issues of material fact, the case is cut short by the panel because the judges deemed it not a clear-enough-cut case of sex discrimination to violate the constitution. But if plaintiff is right — i.e., that the ultimate decision was in fact motivated by sex — then it is the act of gender bias that transgresses a clearly-established right, rather than the particular circumstances of her case. Whether such bias existed was ultimately a fact question — one perhaps susceptible to summary judgment, but still a decision on the merits. The panel dangerously co-mingles the immunity and merits determinations, which — if extended to future cases — might require plaintiffs to allege direct or highly-circumstantial evidence in the pleadings simply to avoid dismissal. Let’s hope that this invitation just shrivels on the vine.

Friday, February 2, 2007

Today marks two wins for employees on appeal. In Czekalski v. Peters, No. 05-5221 (D.C. Cir. Feb. 2, 2007), the court succinctly remands a Title VII sex discrimination case for trial, writing that “[b]ecause this allegation must be resolved in a jury room rather than in the pages of the Federal Reporter, we reverse the magistrate judge’s grant of summary judgment in favor of the government.” Well said! The court holds that the district court misapprehended Title VII law, when it insisted (1) that a federal-sector lateral transfer could not be an “adverse action” as a matter of law; and (2) that an employee, to make out her prima facie case, must present evidence that a similarly situated employee outside the protected class was treated differently.

Meanwhile, a case in the Eighth Circuit, Allen v. Tobacco Superstore, Inc. (TSI), No. 05-3414 (8th Cir. Feb. 2, 2007), requires some sorting out. The employer throws up a slew of challenges to every facet of the trial and bench verdict (a mixed ruling on the employee’s Title VII promotion, termination and retaliation claims), yet — save for reversal of a punitive damages award of $75,000 — all objections are for naught. The points on appeal include (1) a denial of sanctions against the plaintiff for alleged perjury; (2) claims of clear error in the findings of fact, including challenges to credibility findings; and (3) challenges to the calculation and availability of damages. There is also a most fascinating argument about whether the district court erred in empanelling an jury, with three days’ warning, when (apparently) neither side demanded one. The judge, too late realizing his error, vacated the jury verdict, treated the verdict as advisory and issued findings of fact and conclusions of law. The employer claims on appeal that it was sandbagged, to its supposed prejudice. But the panel findings no record evidence that the employer would have tried the case differently, and deems any error not worthy of a new trial.

The panel majority vacates punitive damages, finding that the employee failed to prove malice or reckless disregard of federal law, despite the following record:

“In awarding punitive damages, the district court found (1) TSI had no employment policies; (2) TSI did not hire a black manager until after two other black employees, Dianne Darrough (Darrough) and Theresa Sharkey (Sharkey) filed discrimination claims; (3) TSI had eighty-two stores in 2003 and no black managers; (4) TSI did not promote Darrough and Allen; (5) TSI was on notice of claims of discrimination because three charges of discrimination had been filed; (6) despite the charges, TSI continued its practice of not posting vacancies; and (7) the EEOC found TSI discriminated against Sharkey.”

Judge Smith, in dissent, would have upheld even the punitive award and finds that the employer virtually defaulted its argument on this point: “TSI makes virtually no argument as to why the district court abused its discretion in awarding punitive damages. It devotes only one paragraph in its 65-page brief to the issue. Furthermore, within this one paragraph, TSI fails to cite a single authority for the proposition that Allen’s misconduct ‘demonstrates she should not be awarded any compensatory or punitive damages.’ The only cases relied on by TSI relate to the constitutionality of the punitive damages award, not to its availability.” But who needs an actual “argument” when the panel majority will apparently write it for you anyway?

Thursday, February 1, 2007

The Tenth Circuit affirms a jury verdict for a sex harassment victim in Renner vs. Harsco Corp., No. 05-4201 (10th Cir. Jan. 31, 2007) , though it also affirms judgment as a matter of law against punitive damages.

The harassment verdict and compensatory award — $30,000 for pain and suffering, $30,000 for emotional distress — pulled through post-trial motions and the appeal. The plaintiff, a female quality control inspector, suffered a two-year campaign of typically vulgar name-calling and cursing by co-workers whose work she was in charge of examining. Plaintiff’s complaints to management went unheeded over most of that period. If anything, the harassment escalated, with male employees following the plaintiff around and spitting tobacco on her car.

Befitting the standard of review, the court evaluated the record from the winning employee’s perspective. Harsco had argued at trial that the animosity was not sex-based at all, but had to do with the plaintiff’s unreasonable standards during inspections. But as the panel concluded, “The jury heard about several gender-based comments and actions that only Ms. Renner [as opposed to male inspectors] was subjected to. Harsco Corporation has not demonstrated that no reasonable inference from the facts presented could support Ms. Renner’s claim. “

The employer wriggles out of $20,000 punitive award, though, because the employee failed to rebut the evidence that the corporation — in contrast to the individual managers — took affirmative steps to comply with Title VII in good faith under Kolstad v. American Dental Ass’n , 527 U.S. 526, 545-46 (1999):

“Harsco Corporation submitted substantial evidence showing that the company established comprehensive polices and training procedures in an effort to comply with Title VII. In response, Ms. Renner alleges that her supervisors were not properly trained, but the only evidence she provides of that faulty training is the fact that her supervisors did not comply with the company’s policies and procedures in various respects. If failure of supervisors to comply with company policy were sufficient evidence to prove the lack of a good-faith effort to train, the Kolstad defense would be effectively eliminated.”

Finally, there was the sidelight of a contested evidentiary ruling: exclusion of evidence under FRE608(b) that the employee failed to disclose her Title VII claim properly in a bankruptcy petition. Held the court, “It is clear from this conflict that the parties could have created a virtual mini-trial over whether Ms. Renner made a false statement in connection with her bankruptcy proceeding. Moreover, the sole point Harsco Corporation sought to prove by introducing the form is that Ms. Renner has signed forms without verifying that their content is accurate. But Ms. Renner admitted this precise fact in her testimony. The district court properly exercised its discretion to avoid a mini-trial over a collateral issue that the plaintiff already conceded.”



Daily Developments in EEO Law
EEO Case Summaries by Circuit
Old “Daily Developments” Blog Archive

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

Web Resources

Other Employment Sites Worth a Spin (updated 12/19/08)

General Employment

Ross’s Employment Law Blog

Workplace Fairness

Workplace Prof Blog

George’s Employment Blog

Jottings by an Employment Lawyer

Employment Law Information Network

HR Lawyer’s Blog

Labor Employment Law Blog

What’s New in Employment Law?


Alaska Employment Law

California Labor & Employment Law Blog

Storm’s California Employment Law

Connecticut Employment Law Blog

Delaware Employment Law Blog

Milwaukee Employment Lawyer

New York Employment Lawyer Blog

Ohio Employers Law Blog

[Virginia] The Laconic Law Blog

Legal-Related, Not Specifically Employment, But Good Reading

How Appealing

Wait A Second! [Second Circuit cases]

Robert Reich’s Blog

tell us about your case


our office locations

Outten & Golden LLP
685 Third Avenue, 25th Floor  
New York, NY 10017  
Phone: 212-245-1000
Map and Directions

Outten & Golden LLP
One California Street, 12th Floor
San Francisco, CA 94111
Map and Directions

Outten & Golden LLP
601 Massachussetts Avenue NW
Second Floor West Suite 200W
Washington, DC 20001
Map and Directions