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March 2007

Daily Developments in EEO Law
by Paul Mollica © 2007

Friday, March 30, 2007

Two more decisions affirming summary judgment filed today.

Leffman v. Sprint Corp., No. 06-3211 (6th Cir. Mar. 30, 2007) predictably resolves, in favor of the employer, the question of whether a female employee who took maternity leave in 1976 (before enactment of the Pregnancy Discrimination Act) -- and suffered a break in service thereby -- endured a new act of discrimination when she failed to qualify in the year 2000 for early retirement benefits. Courts of appeals routinely hold that such claims are either time-barred (denial of benefits being merely an artifact of a long-past act of discrimination), or else (as in this case) would penalize the employer for conduct that was lawful prior to the passage of the PDA (see Hulteen v. AT&T Corp., 441 F.3d 653, 97 FEP 1025 (9th Cir. 2006)). But this panel goes the extra mile and ratifies the district court's holding that such a claim is also barred by the seniority provision of Title VII, which provides that, "[n]otwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system . . . ." 42 U.S.C. § 2000e-2(h). The opinion only brushes over this point, and notes that the employee gave this argument no attention in the district court, but plaintiffs will have to beware of this decision being cited in future Title VII/ADEA benefits cases.

Gretillat v. Care Initiatives, No. 06-1738 (8th Cir. Mar. 30, 2007) is an ADA case involving a kitchen worker with osteoarthritis, holding that (1) while walking and standing are major life activities, Gretillat was not significantly limited in either; (2) crawling, kneeling, crouching and squatting are not major life activities, and (3) even taken all of the impairments together, Gretillat demonstrated that she is "fully capable of creatively mitigating the effects of her impairment."

Thursday, March 29, 2007

On February 22 last, I posted on a dreadful decision, Crawford v. City of Fairburn, Ga., No. 06-13073 (11th Cir. Feb. 21, 2007), holding that involvement in EEOC conciliation does not fall within the ambit of the Title VII participation clause (42 U.S.C. § 2000e-3(a)). Today, the court withdrew that opinion in favor of a simple opinion affirming summary judgment on the merits, stripped of the original language that was far, far worse. (I was a co-author on an amicus brief for the National Employment Lawyers Association asking for rehearing on this issue.)

In other news (courtesy of "How Appealing"), the Court of Appeals of New York holds -- in response to a certified question form the U.S. Court of Appeals for the Second Circuit -- that a U-5 form filed by an employer with the NASD giving the reasons for the termination of a broker is absolutely immune from civil liability for defamation (Rosenberg v. Metlife, Inc. (N.Y. Mar. 29, 2007) ). So presumably even a malicious lie cannot result in civil liability (for the employer, at least).

Wednesday, March 28, 2007

Yuknis v. First Student Inc., No. 06-3479 (7th Cir. Mar. 28, 2007) straightens out the Seventh Circuit's penchant -- in the harassment area -- for separating out direct versus "second-hand" harassment. The plaintiff (a woman bus driver) alleged a sexually hostile work environment, but apart from two crude sexual remarks that didn't amount to "severe or pervasive" harassment, she had experienced nothing directed at her. The district court granted summary judgment. On appeal, the court found that the bulk of the employee's complaints were about non-sexual behavior (such as wagering and casual rule-breaking) that she found personally offensive, or sexually-oriented behavior (such as viewing internet porn) that she knew about but did not witness.

The opinion (which affirmed the summary judgment) coined some new vocabulary for assessing such harassment claims (emphasis mine, cites omitted):

"The fact that one's coworkers do or say things that offend one, however deeply, does not amount to harassment if one is not within the target area of the offending conduct-if, for example, the speech or conduct is offensive to women and one is a man, or offensive to whites and one is a black. One could be the target, as the plaintiff was in the two incidents we mentioned . . . Or one could be in the target area because a group of which one was a member was being vilified, although one was not singled out."

"Some cases term what we are calling the 'target area' form of actionable harassment 'second-hand harassment' and intimate, or even state, that it is categorically less serious than harassment specifically aimed at the plaintiff. But the line that runs between 'you are a bitch' and 'all women are bitches [and you are a woman (understood)]' is quite a fine one, a point that a belittling term like 'second hand' tends to obscure. The term (virtually confined to cases in this circuit) has no analytic function and is better avoided."

The panel exemplifies this new "target area" framework with several illustrative examples, sprinkles a liberal dose of John Stuart Mill (the opinion was authored by Judge Richard Posner), and concludes: "The American workplace would be a seething cauldron if workers could with impunity pepper their employer and eventually the EEOC and the courts with complaints of being offended by remarks and behaviors unrelated to the complainant except for his having overheard, or heard of, them. The pluralism of our society is mirrored in the workplace, creating endless occasions for offense. Civilized people refrain from words and conduct that offend the people around them, but not all workers are civilized all the time. Title VII is not a code of civility." Notably, the panel once and for reclaims the word "bitch" as a gendered term (a self-evident proposition that Judge Posner once openly questioned, Galloway v. GM Service Parts, 78 F.3d 1164 (7th Cir. 1996)).

Also take a peek at Maday v. Public Libraries of Saginaw, No. 05-2637 (6th Cir. Mar. 28, 2007), which shows how a defendant can put plaintiff counsel's integrity on trial in an FMLA/age discrimination case (introducing testimony that the plaintiff complained about her attorney in therapy, making personalized asides during closing argument about counsel's trial demeanor, maligning counsel in a sidebar with the judge), and still get away with it. The panel affirms denial of a mistrial and motion for a new trial. While the panel finds that defense counsel "flirted with impropriety," it also holds that flirtation is not consummation and that the lawyer's "heat of battle" remarks did not unfairly taint this trial.

Tuesday, March 27, 2007

I have points to pick with Strong v. Univ. Health Care Sys., LLC, No. 06-30270 (5th Cir. Mar. 26, 2007), a straight-forward Title VII retaliation case in which a nurse administrator was term fired some three months after entering a complaint of harassment against a doctor.

The first is whether the panel correctly construes the standard of causation for retaliation claims under section 704(a) to be only and always "but-for." Though it has been held that retaliation claims do not partake of the 1991 Civil Rights Act "mixed motive" amendment (42 U.S.C. § 2000e-2(m)), why would such a claim not at least benefit from a Price Waterhouse analysis in the event that the employee had direct proof of a retaliatory motive? Perhaps the facts of this case did not warrant such an analysis (there appear to have been no admissions or strong circumstantial evidence of a retaliatory purpose), but this opinion ought not be taken to foreclose a mixed-motive analysis, even in the Fifth Circuit.

My second complaint is this language, in the last lap of the opinion (emphasis mine):

"Employers are sometimes forced to remove employees who are performing poorly, engaging in improper work conduct, or severely disrupting the workplace. This is especially true for hospitals providing serious medical care to patients. Precedent does not prevent a hospital from removing such an employee simply because the employee engaged in a protected work activity months prior."

Do we now calibrate the degree of plausibility or reasonableness of an employer's explanation based on the "seriousness" of its enterprise? Do health care providers get an even more watered-down standard of pretext than ordinary, non-life-or-death operations? Hospitals will appreciate the sentiment, for sure, but it does not appear to be founded on Title VII. It appears to be little more than a rhetorical flourish on an otherwise modest decision affirming summary judgment.

I have an even bigger gripe with Fair v. Norris, No. 06-1580 (8th Cir. Mar. 27, 2007), which holds in a Title VII/Equal Protection case that a 22-day delay of a promotion in a state government job is not an adverse employment action. The employee grieved denial of the promotion and within three weeks won the position with back pay. The panel affirms summary judgment on the ground that the employee cannot make out a prima facie case, because the state agency (it is said) quickly corrected its error.

But the Supreme Court last term in Burlington Northern v. White, it seemed to me, rung an end to the "no-harm, no-foul" standard insinuated here. The Court held that a 37-day suspension for insubordination, successfully grieved (with back pay), was a materially adverse action for purposes of section 704(a). The Court held that the self-correction did not make the suspension itself a non-event:

"[We have no reason to believe that a court could not have issued an injunction where an employer suspended an employee for retaliatory purposes, even if that employer later provided back pay. In any event, Congress amended Title VII in 1991 to permit victims of intentional discrimination to recover compensatory (as White received here) and punitive damages . . . ."

While I hardly recommend that employees litigate such modest injuries, this case would appear to fall within the four corners of Title VII.

Thursday, March 22, 2007

The Seventh Circuit dropped two EEO decisions on Wednesday.

The first, Brewer v. Bd. of Trustees of the Univ. of Ill., No. 06-1259 (7th Cir. Mar. 21, 2007) , "concerns the corrupt, Machiavellian world of permit parking at the University of Illinois's Urbana-Champaign campus." It also implicates the important issue of agency law presented in this term's EEOC v. BCI Coca Cola case in the Supreme Court. The employee, a former master's candidate at the school, claimed that his supervisor at the University Personnel Services Office (PSO) -- Kerrin Thompson -- refused, for racial reasons, to take his side in a parking permit controversy that eventually got him fired. The claim was brought under Title VII, as well as Title VI.

Brewer's job under Thompson was a ten-hour-a-week stint interconnected with his study program. Before long, he began to get into work and study trouble, with a missed deadline, plunging grades and accusations that he wasn't pulling his load on the job. He then became ensnared in a controversy about allegedly forging a university parking tag for his car. Thompson, who Brewer said arranged for the tag in the first place, refused to defend him and called him a "nigger" to his face. By failing to intercede with another, higher level university employee (Director Denise Hendricks) who wielded ultimate firing authority, Thompson also caused Brewer to lose his job. This effectively terminated Brewer's research assistantship and his financial aid.

Finding that Brewer lacked the elements of an indirect, prima facie case under Title VII, the panel turns to the direct method of proof, i.e., the evidence that Thompson used her influence to cause Brewer to lose his job for racial reasons. The panel holds that giving Brewer all of the benefits Rule 56 allows the non-movant, Thompson's unspoken racial motivation did not corrupt the termination decision, because Hendricks herself carried out an examination of the facts. "Though Thompson, as Hendricks's assistant, might have effective control over some of Hendricks's decisions, the decision to fire Brewer was not one of them. Hendricks listened to the information Thompson relayed to her but did not simply rely on it. Instead, she examined the parking tag herself and confirmed that it had been altered."

Were I Mr. Brewer's counsel, I would recommend that he file a protective cert petition in the Supreme Court and await the outcome of the BCI Coca Colacase.

Meanwhile, in EEOC v. Schneider Nat'l, Inc., No. 06-3108 (7th Cir. Mar. 21, 2007), the Commission takes it in the neck for defending the right of a truck driver with neurocardiogenic syncope (which can cause fainting) not to be judged by his employer solely on the basis of his diagnosis. After Schneider suffered a fatal accident with another of its drivers (named Kupsky), it adopted a "zero tolerance" standard for this particular condition and fired the claimant (named Hoefner). The Commission argued that because the condition is treatable with medication and Hoefner otherwise met federal safety standards, Schneider regarded him as disabled and fired him in violation of the ADA.

The Seventh Circuit affirms summary judgment on both narrow and broad grounds. The narrow ground -- good for perhaps a three-page opinion -- is that Schneider did not "regard" Hoefner as substantially limited in the major life activity of working, but only (at most) from driving trucks. Good enough. But the panel continues on that Schneider would be broadly justified in adopting such a policy even on the merits under the ADA, to account for the small but potentially catastrophic risk of another accident. "Schneider is the nation's largest truck company, employing 13,000 drivers. The more drivers a company employs, the greater the likelihood of the kind of accident that befell Kupsky and could befall Hoefner. . . . As there is no evidence that Schneider exaggerates the severity of Hoefner's condition and the risk he poses as a driver, there is no violation of the Americans with Disabilities Act." And so the EEOC is cast in the role of defending the indefensible (allowing unqualified haulers to rove the interstates), instead of supporting Mr. Hoefner's right to be employed free of stereotypes.

Tuesday, March 20, 2007

Just as I'm off to Charleston, SC for the ABA Labor and Employment Mid-Winter con-fab, come four new Title VII decisions -- all against (sigh!) the employees.

El v. SEPTA, No. 05-3857 (3d Cir. Mar. 19, 2007) : The panel holds that SEPTA (a public transit agency) proved "business necessity" in a Tile VII race disparate impact case, upholding (on summary judgment) the agency's policy of barring persons with prior criminal records from serving as paratransit drivers for the disabled. The plaintiff had a second-degree murder conviction from a gang-related juvenile shooting dating back to 1960, which disqualified him because the conviction was a "record of any felony or misdemeanor conviction for any crime of moral turpitude or of violence against any person(s)." Denied the opportunity to apply, El argued that "the policy has a disparate impact: because African Americans and Hispanics are more likely to have a criminal record, they are more likely to run afoul of the policy." But the panel affirms summary judgment, finding that employers are allowed latitude to engage in risk management covering even remote contingencies, such as the personal risk to passengers of a violent assault by a driver.

The court defines the business necessity defense as a "require[ment] that employers show that a discriminatory hiring policy accurately-but not perfectly-ascertains an applicant's ability to perform successfully the job in question. In addition, Title VII allows the employer to hire the applicant most likely to perform the job successfully over others less likely to do so." The agency presented unrebutted expert testimony of the risks of recidivism among violent offenders and the unique vulnerability of disabled passengers. (And while the panel opinion teasingly speaks of whether a "reasonable juror" would be compelled to find for the employer, we know there would be no jury sitting in a disparate-impact-only case under 42 U.S.C. §§ 1981a(a) & (c).)

Baptist v. City of Kankakee, No. 05-4034 (7th Cir. Mar. 19, 2007): The court enforces a Title VII settlement for five plaintiffs reached the day of trial (with injunctive relief and $67,000 in attorney's fees), over the plaintiffs' objection that "their counsel failed to adequately advise them on the merits of the settlement in an effort to ensure payment of his fees." The court holds that a counseled settlement is presumptively valid and that -- assuming that there is no evidence of fraud or collusion -- "the adequacy of counsel's advice regarding settlement is an improper factor in evaluating whether a settlement is knowing and voluntary." Enforcement of the contract affirmed.

Jencks v. Modern Woodmen of America (MWA), No. 05-5130 (10th Cir. Mar. 19, 2007): Here's another Title VII settlement, coming in the aftermath of a jury verdict for the plaintiff. This time, the employee takes the money and then -- seemingly contrary to the terms of the Mutual, General, and Complete Release -- she seeks reemployment with the same employer. The company turned her down expressly because of the settlement agreement, and she brings suit for retaliation. While the Tenth Circuit wonders whether the employer's failure to accept the plaintiff's application is even materially adverse (as the employee, but the court's reckoning, lacked any genuine expectation that she would be considered), the panel sidesteps the question by holding that enforcement of the no-rehire clause was a legitimate, non-discriminatory reason for the decision. The plaintiff could advance a construction of the contract that made it possible for her to seek a "contract" position with the company, but "MWA's interpretation of the Settlement Agreement is not 'tortured.' Rather, it is one way to reasonably read the contractual terms." Summary judgment affirmed.

Baldwin v. Blue Cross/Blue Shield of Alabama, No. 05-15619 (11th Cir. Mar. 19, 2007): A tortured Title VII sex harassment case, in which summary judgment is affirmed on a Faragher/Ellerth defense on the grounds that (1) the employee waited over three months to report the allegedly harassing incidents (profane language, some gender-specific comments, co-worker behavior and one threatening situation with the manager); (2) the employer investigated the allegations and was unable to substantiate them; and (3) the employee lost her job after she declined all of the alternatives for resolving the matter. The panel observes that an employer investigation needn't amount to a "full-blown, due process, trial-type proceeding," and that the company in this case acted reasonably in offering either to transfer the plaintiff away from the worksite or to have a counselor intervene and monitor her relationship with the manager.

Monday, March 19, 2007

We recall from Ford Motor Co. v. EEOC , 458 U.S. 219, 232 (1982), that an employer that makes an unconditional offer of reinstatement may cut-off accumulation of back pay if the employee says "no." But may an employee use the offer affirmatively to prove mitigation? The Sixth Circuit, 2-1, turned thumbs-down on this tactic in Stockman v. Oakcrest Dental Center, No. 05-1518 (6th Cir. Mar. 15, 2007), tossing a jury verdict for an ADEA plaintiff and remanded for retrial.

A few weeks before trial of an ADEA termination case involving a dentist (Dr. Stockman) and a dental practice, the employer made a written offer of reinstatement. The dentist wrote back with a counteroffer and the entire negotiation stalled. The district court -- rejecting a bid by the plaintiff to enforce the offer -- found that it was extended in the course of a settlement negotiation. Yet at trial, the court allowed the plaintiff to present evidence of the offer to blunt a mitigation defense to damages. The jury then heard the case and awarded liability to Dr. Stockman.

The Sixth Circuit reversed, finding that the reinstatement offer was a settlement agreement covered by Fed. R. Evid. 408 and that its admission was an error. Dr. Stockman's counsel claimed that the evidence was a counterweight to the defendant's mitigation defense, and that the employer therefore opened the door to the letter's admissibility. The panel majority said:

"Where, as here, a party has raised an issue going to the validity or amount of a claim, that is insufficient for admitting settlement offers that go to the same issue because to do so violates Rule 408 on its face."

The panel majority found the offer inadmissible under Fed. R. Evid. 403 to boot:

"Here, the probative value was nearly non-existent. The offer was made just before trial, two years after termination, and was contingent on settling the case, whereas Defendants' evidence established that Dr. Stockman sought, received, and rejected offers of equivalent employment in the months following his termination. Thus, the Letters were irrelevant to all issues of mitigation except for future pay. However, this mere scintilla of probative value was further reduced by Defendants' offer to concede the issue."

additionally, the Court found the admission of the offer substantially likely to have affected the verdict, because the balance of the evidence (including a supposedly inapt comparison to another dentist and a statement by one of the principals that Dr. Stockman was "the oldest doctor" in the practice) was too weak to support the verdict on its own.

Finally, the panel majority held that a curative instruction concerning the limited admissibility of the letter was insufficient to lift the taint on the jury. "While the instruction added a veneer of protection, we reject the proposition that any amount of evidence supporting liability, no matter how little, coupled with a limiting instruction read at any time during the trial is sufficient to cure the wrongful admission of Rule 408 evidence. To hold otherwise would render Rule 408 toothless."

Judge Cole dissented, observing that "[when a party seeks to admit evidence of a settlement offer made by an opposing party to rebut the opposing party's claim that the party seeking admission of the settlement offer failed to mitigate damages, that evidence is offered for 'another purpose' under Rule 408. The evidence that Plaintiff was immediately ready to resume employment with Defendants was unquestionably relevant to the issue of mitigation. This evidence was properly admitted under Rule 408 to demonstrate that Plaintiff was willing to mitigate damages, and the district court gave an instruction limiting the use of the evidence to that purpose."

Friday, March 16, 2007

The Eighth Circuit, in a 2-1 decision -- In re United Pacific R.R. Employment Practices, No. 06-1706 (8th Cir. Mar. 15, 2007) -- holds that an employer does not violate the Pregnancy Discrimination Act by denying, under a health care benefit plan, coverage for any contraceptives. "[We hold that contraception is not 'related to' pregnancy for PDA purposes because, like infertility treatments, contraception is a treatment that is only indicated prior to pregnancy. Contraception is not a medical treatment that occurs when or if a woman becomes pregnant; instead, contraception prevents pregnancy from even occurring." It likewise rejects a straight sex discrimination claim, holding that men (who might want vasectomies) and women are denied the same benefit equally.

Dissenting, Judge Bye disputes the majority's framing of the claim in terms of all contraception, when the district court held that the proper comparison was between prescription drugs available for women and men, where record showed that prescription drugs for male-only preventative therapy was covered. Moreover, Judge Bye rejected as inapt an analogy to infertility, a condition that the Eight Circuit had previously held outside the scope of the PDA:

"With prescription contraception a woman controls her potential pregnancy. Such contraception is necessarily gender-related because it prevents pregnancy only in women. Without contraception, a sexually active, fertile woman is almost certain to become pregnant. Once pregnant, only the woman's health is affected. Infertility, by contrast, is a word used to describe a number of medical conditions affecting both men and women. When a man or a woman is infertile, he or she is unable to contribute to reproduction as his or her reproductive organs do not function properly. Infertility treatments may correct the medical condition of infertility in both men and women, allowing them to effectively make the necessary contribution to reproduction. Thus, prescription contraception and infertility treatments are like apples and oranges."

The case attracted a host of amici curiae, including a brief co-signed by 30 U.S. Senators and Representatives on behalf of the employees, whose view the court does not consult: "cannot assume that these amici members represent the viewpoints of a majority of both houses of Congress in 1978." The panel majority also dismissed the considered views of the EEOC (strangely, not an amicus here) expressed in a Commission decision from 2000.

Friday, March 9, 2007

The Ninth Circuit reverses a jury verdict for an employer over a jury instruction issue in a disability discrimination case, in Gambini v. Total Renal Care, No. 05-35209 (9th Cir. Mar. 8, 2007). The case was tried under the federal Family and Medical Leave Act and Washington Law Against Discrimination (LAD). Relying on the description of the record set out in the opinion, it is one of those troubling cases that straddle the line between personality and mental disability that can be so difficult to sort out.

The employee (a contracts clerk at a health care clinic), diagnosed with bipolar disorder, revealed signs of irritability at work. Gambini suffered a jolt when called into a meeting on July 11, 2002, convened without her prior awareness by her supervisors (named Bratlie and Lovell), to place her on a performance plan:

"When Bratlie presented Gambini with the improvement plan, the first sentence of which stated, '[Gambini's] attitude and general disposition are no longer acceptable in the SPA department,' Gambini began to cry. Reading the remainder of the document did not alleviate Gambini's symptoms-instead she found her face growing hot and felt a tightening feeling in her chest, as well as shortness of breath and shaking. When she had finished reading the performance plan, Gambini threw it across the desk and in a flourish of several profanities expressed her opinion that it was both unfair and unwarranted. Before slamming the door on her way out, Gambini hurled several choice profanities at Bratlie. There is a dispute about whether during her dramatic exit Gambini warned Lovell and Bratlie that they 'will regret this,' but Bratlie did observe Gambini kicking and throwing things at her cubicle after the meeting."

Shortly after the uproar, Gambini checked herself into the hospital. But she was terminated upon her return because of her outburst at the July 11 meeting.

At trial, the jury found against Gambini on all of their claims. The Ninth Circuit affirmed the FMLA verdict, but noted a critical error in the LAD jury instructions that required a new trial. The court denied the employees draft instruction that "conduct resulting from a disability is part of the disability and not a separate basis for termination." In this instance, the LAD parallels the federal ADA. Exploring the issue, the panel held that under prior circuit law and Washington state law, "where an employee demonstrates a causal link between the disability-produced conduct and the termination, a jury must be instructed that it may find that the employee was terminated on the impermissible basis of her disability."

Thus, the panel holds, the jury should have been allowed to consider Gambini's July 11 meltdown as evidence of her disability, rather than just of a defiant personality. And because Washington state law allows a judgment for plaintiff where the disability motivates the decision even in part ("substantial factor"), failure to so instruct the jury "plainly requires reversal." The jury had a record on which it could have found that "during the July 11 meeting, Gambini was in the throes of a medication change, which heightened the volatility of the mood swings that she and her health care providers were trying to get under control." In other words, the outburst was "part and parcel of her disability," but the jury never learned that. So the case goes back for a second trial (or settlement).

Thursday, March 8, 2007

I've been busy getting ready for three speaker's gigs in Chicago and South Carolina, hence a bit neglectful returning to reporting. Fortunately, things have been a tad slow. In the Eleventh Circuit, a panel in Myricks v. Federal Reserve Bank of Atlanta, No. 06-11624 (11th Cir. Mar. 7, 2007) enforces a Title VII settlement agreement by finding that the employee waived his claims knowingly and voluntarily, hardly a surprise under the circumstances: "an educated employee with ample time to consider an agreement cannot profess ignorance about its clear terms after consulting an attorney."

Meanwhile in the Fourth Circuit, a panel reversed summary judgment in a Title VII sex discrimination/retaliation case: Lettieri v. Equant Incorporated, No. 05-1532 (4th Cir. Mar. 5, 2007). This case continues an assault on the fourth-prong of the McDonnell Douglas test, waged in other circuits (notably the D.C. Circuit), where the circumstances give rise to an inference of discrimination without proof that the employee was replaced by someone outside her protected group. In this case, a female employee was replaced by another woman, but the manager who fired the employee was not involved in replacing the her. Citing "what we called 'the different decision maker exception to the fourth prong of the Title VII prima facie case,'" the Court found ample evidence to substitute for the ordinary showing that the plaintiff was replaced by someone outside for her protected group. Managers at the company over time had queried "Lettieri 'how [her] husband handled the fact that [she] was away from home so much, not caring for the family"; called her a "bitch," made lewd comments on her female co-workers' looks, and imposed the silent treatment.

Friday, March 2, 2007

Cheers to the EEOC for the appeal in EEOC v. Du Pont E.I. DuPont de Nemours and Company, No. 05-30712 (5th Cir. Mar. 1, 2007), in which the Commission not only prevailed at trial in an ADA "regarded as" case, but preserved practically the entire judgment on appeal in a court not known for its solicitude for employment discrimination plaintiffs.

The employee, Ms. Barrios, suffered from a condition that medically restricted her ability to walk. The worksite was a chemical plant, and the employee had essentially sedentary duties commensurate with her medical certification. But Du Pont at a certain point declared that the plant employees must demonstrate their ability to evacuate the building. With effort, Ms. Barrios was able to ambulate from the building. She was nevertheless discharged on permanent disability. The EEOC won a partial summary judgment on the "regarded as" issue and the rest of the case went to the jury. The jury awarded (on an advisory basis) $91,000 in back pay and $200,000 in front pay, plus (as legal relief) $1,000,000 in punitive damages (capped by the district court at $300,000).

Du Pont, as a matter of appellate tactics, overplayed its hand by challenging sufficiency of the evidence for punitive damages after a jury trial. The result was an remarkably blunt opinion (from Chief Judge Edith Jones, no partisan of the plaintiff's bar) which laid out just how cruel Du Pont was to this employee:

DuPont was aware of its responsibilities under the ADA. Yet, viewed in the light most favorable to the verdict, DuPont made Barrios's job more difficult. The company placed Barrios's printer over one hundred feet from her desk in spite of her walking difficulties, whereas other lab clerks' printers were adjacent to their desks. DuPont refused to allow Barrios to demonstrate her ability to evacuate before she was terminated - for inability to evacuate. The company spent years trying to convince Barrios to retire on disability. But the crowning evidentiary blow against DuPont is that after Barrios attempted to get her job back, a DuPont supervisor stated that he no longer wanted to see her "crippled crooked self, going down the hall hugging the walls." The supervisor's denial of this remark under oath, like DuPont's rejoinder to other negative evidence, was subject to the jury's credibility assessment. The jury likewise could have rejected DuPont's good-faith defense based on the conclusory assertions by two DuPont employees that they comply with the law.

The Fifth Circuit also brought itself into line with every other circuit and held that a jury need not award compensatory damages under 42 U.S.C. § 1981a to award punitive damages. Du Pont did win a small snippet of the appeal, though, on front pay (the panel holding that the employee could not have worked for the ten years, as the district court projected)

Thursday, March 1, 2007

May an employee refuse to perform job duties in order to engage in protected activity under Title VII? This intriguing question is posed in LeMaire v. State of Louisiana, No. 05-31134 (5th Cir. Feb. 27, 2007). The panel, 2-1, substantially reverses summary judgment in a same-sex harassment and retaliation case brought by a bridge tender against the state department of transportation.

One of the plaintiff's claims was that he was given a two-day suspension for refusing a work assignment, spraying weeds. According to the summary judgment record, the supervisor who allegedly harassed LeMaire (named Endres) "allegedly told LeMaire that he (Endres) would make it impossible for LeMaire to transfer, so the only way LeMaire could get away would be to quit. Endres then ordered LeMaire to spray herbicide on a large area of the bank and lawn. Believing this order was in retaliation for having objected to Endres' sexually explicit stories, LeMaire left the job site to report the conduct to Jones."

The panel majority reversed summary judgment on the suspension. It wrote that:

"LeMaire asserts that he left work without spraying the herbicide as requested because he was making a report to Jones about Endres' sexually harassing behavior. This presents an interesting legal question regarding whether and under what circumstances an employee may refuse to perform his job duties in order to engage in protected activity."

Having set up such a splendid issue, the court then lets down the reader, writing instead: "We need not decide that issue, however, because there are factual disputes concerning this claim as well." The facts included a misdated suspension letter, a suggestion that the decision maker was unduly influenced by the harasser himself and the possibility that Endres assigned the herbicide task to distract the employee from complaining to a supervisor. (N.B.: A word to district courts -- reversal of summary judgment is a whole lot more likely to occur when (1) a court promulgates a single page order (such as here), (2) promising that "written reasons" for the decision would be "filed at a later date," but (3) no such reasons are ever filed.)

 

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Outten & Golden LLP
One California Street, 12th Floor
San Francisco, CA 94111
Phone: 415-638-8800
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Outten & Golden LLP
601 Massachussetts Avenue NW
Second Floor West Suite 200W
Washington, DC 20001
Phone: 202-847-4400
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