April 2007

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

Daily Developments in EEO Law
by Paul
Mollica © 2007

Monday, April 30, 2007

If a director replaces all six female branch managers with younger males in just twenty months, does this raise an inference of sex or age discrimination? The Tenth Circuit (or, at least, a 2-1 majority of one panel) held “no,” affirming summary judgment in Timmerman v. U.S. Bancorp, N.A., No. 06-1185 (10th Cir. Apr. 27, 2007).

The employee, a 52-year-old woman, was terminated as bank branch manager after being audited and discovered to have refunded thirty-one overdraft charges, totaling $1,099, to two coworkers’ accounts in violation of company policy. Timmerman sued U.S. Bank for Title VII sex, and ADEA, age discrimination. After further evidence surfaced in discovery that the plaintiff may have skimmed several hundred dollars of bank assets to her own account, the employer counterclaimed against the employee for conversion, and the employee upped the ante with a fresh round of Title VII and ADEA retaliation claims (topped with a 42 U.S.C. § 1985(2) conspiracy claim).

The panel judges agreed, though by different routes, that the employee failed to present a genuine issue of material fact about whether the avowed reason for her termination was a pretext for discrimination. The employee’s keystone evidence was the district manager, a woman named Johnson, within two years of her promotion to that title “replaced every single older female branch manager with a young man.” But the panel majority finds this pattern unenlightening, because any inference of discrimination from the wave of younger male hires would disregard the individual circumstances of each underlying decision. In fact, the other replacements occurred in the course of a corporate reorganization, while the employee in this case lost her job due to misconduct. And “the evidence in the record demonstrates that only one of the incumbent branch managers . . . applied for the new branch manager position” following the reorganization.

Thus, the panel majority finds, “Ms. Timmerman has not eliminated the very distinct possibility that ‘[Ms.] Johnson replaced every female branch manager with a young man’ not out of discriminatory animus, but because the female branch managers either did not apply for the new branch manager position or were not as qualified as a competing younger male.”

Judge Lucero, concurring in the judgment only, would hold that “when a plaintiff claims that her supervisor sought to exclude members of her protected class from certain positions, I would place significant weight on evidence of the supervisor’s past hiring practices with respect to those positions.” Nevertheless, Judge Lucero would affirm the judgment based on the record that male applicants substantially outnumbered women and that at least one woman had been offered a branch managership.

Friday, April 27, 2007

The Eighth Circuit yesterday affirmed summary judgment in a case where the employee claims that the critical evidence was locked up behind a claim of national security, while the Fourth Circuit issued a surprisingly progressive decision in an ERISA case, slapping back an unfair attempt by a plan drafter to redraw the starting line for the accrual of a claim.

The Eighth Circuit case, Elnashar v. Speedway SuperAmerica, LLC, No. 05-3861 (8th Cir. Apr. 26, 2007), appears a straight-forward race/religion/national origin case — except for the presence of the DOJ and FBI in the caption. The employee, a manager trainee identified in the opinion as Egyptian-born and Muslim, claimed that he was treated poorly by the associate manager (tiresome camel-jockey, harem references; rude behavior; inferior job assignments). His tenure at the store also overlapped the 9/11 terror attacks. After the employee left Speedway, he was called upon at home by the FBI, questioned and searched ostensibly in connection with the 9/11 conspiracy. Finding nothing suspicious, the search ended, but one of the agents told Elnashar that it was someone at Speedway who fingered him as a suspect. This comment triggered the litigation that followed

After the plaintiff filed his employment discrimination case, he tried to learn the identity of the informant by way of civil process, Freedom of Information Act (FOIA) requests, and administrative remedies, a journey that included two prior trips to the Eighth Circuit (one in a FOIA case, and an unsuccessful interlocutory appeal in this case). All attempts to learn the identity of the informant were (I think, understandably) opposed by the FBI under the informant and law enforcement privileges. Summary judgment having been granted in the civil rights action, Elnashar had this third and seemingly final attempt to persuade a court that he was entitled to know whether the person who set him up with the FBI was the assistant manager who mistreated him. But the panel affirms the district court’s refusal to compel discovery on the matter.

“Contrary to Elnashar’s argument, the magistrate fully considered his need for the evidence and found it to be speculative. Even if disclosure of the informant’s identity would confirm Elnashar’s suspicion that the informant was a SuperAmerica employee, he still would have to show that the informant’s statements showed anti-Arab animus and connect that discriminatory intent to adverse employment actions at SuperAmerica. The magistrate’s in camera review revealed that the informant did not accuse Elnashar of making bombs or other terroristic activities, substantially weakening his theory that the informant falsely accused him of being a terrorist and that this showed SuperAmerica’s animus against Arabs in the wake of September 11. Thus, the magistrate correctly found that Elnashar had no clear need for the informant’s identity.”

The Fourth Circuit case, White v. Sun Life Assurance Co., No. 06-1285 (4th Cir. Apr. 26, 2007), grappled with the meaning of a contractual limitations clause stating that “No legal action may start… more than 3 years after the time Proof of Claim is required.” The circuits differ over whether to enforce any kind of contractual limitations period in an ERISA claim for benefits (for which courts borrow the state limitations period for enforcing a written contract), but the Fourth Circuit as a rule allows that such provisions are enforceable. Yet the district court refused to enforce the limitation (and granted judgment to the participant for the LTD benefits) and the Fourth Circuit affirmed.

The sin identified in Judge Wilkinson’s majority opinion was that the quoted language did not inform an ordinary participant that the Three years would be measured from the due date for filing a proof of claim, despite that the participant could not file suit until the plan administrator completed its review of the claim. Such a reading was counter to the ordinary assumption that a claim does not cure until an aggrieved party can file suit.

The panel thus affirmed the judgment on the limitations issue, finding that the contractual limitations provision was misleading and oppressive, in view of the claimant’s obligation to exhaust administrative remedies while the clock is ticking on her claim:

“This interlocking remedial structure does not permit an ERISA plan to start the clock ticking on civil claims while the plan is still considering internal appeals. Courts have required exhaustion in light of the symbiotic relationship between ERISA civil suits and internal review, but Sun Life would allow one remedy to undercut the other. Benefit plans would have the incentive to delay the resolution of their participants’ claims, because every day the plan took for its decision making would be one day less that a claimant would have to review the plan’s final decision, decide whether to challenge it in court, and prepare a civil action if need be. Indeed, a plan that did not reach a final decision until after the statute of limitations had run would deprive a participant of the right to file a civil claim at all.”

As some sign of how very difficult this case was for the normally pro-management Fourth Circuit bench, Judge Wilkins attached a lengthy dissent that will certainly be read by the plan’s lawyers as rehearing bait; the third panelist was a visiting district court judge. But two cheers, anyway, for a sensible outcome in a field so often weighted against employees.

Wednesday, April 25, 2007

I shall write again and again, I fear, that ADA cases founded a substantial limitation in the major life activity of “working” nearly always require occupational expert testimony.

Once again, in Zwygart vs. Jefferson County Bd., No. 06-3084 (10th Cir. Apr. 25, 2007), a truck driver in an ADA case fails to lay a foundation for proving that his health (a heart condition) blocked him from a broad class of jobs. Writes the panel (affirming summary judgment), “Mr. Zwygart’s failure to provide evidence establishing his vocational training, the geographical area to which he had access, and the number and type of jobs demanding similar training from which he would have been disqualified from May to December 2003 dooms his claim.” Although he attempts to skate past this deficiency with a doctor’s opinion about his fitness to work, this proffer falls short on admissibility grounds: “In full, the passage Mr. Zwygart cites states: ‘According to Mr. Zwygart, his cardiologist specifically told him that he could not work while on the intravenous antibiotics and in the most recent perioperative period.’ App. 48 (emphasis added). As double hearsay-Mr. Zwygart said that his cardiologist said-this passage is inadmissible under Fed. R. Evid. 802. . . . ”

To see how you can surmount this problem, revisit the recent decision in Christensen v. Titan Distribution, Inc., No. 06-2760 (8th Cir. Apr. 10, 2007) (posted below), where the employee won big at trial with evidence that he was barred from 50% of the jobs in the relevant market.

Meanwhile, the Eighth Circuit distinguishes itself from other circuits that have recently decided that inmate harassment of correctional employees may constitute a hostile work environment. Such recent cases as Randolph v. Ohio Dep’t of Youth Services, 453 F.3d 724, 98 FEP 705 (6th Cir. 2006); Erickson v. Wisconsin Dept. of Corrections, 469 F.3d 600, 99 FEP 334 (7th Cir. 2006); and Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006) (cert. denied 4/2/2007, No. 06-1085), all found viable claims of harassment predicated on the failure of a correctional agency to clamp down of inmate harassment. But in Vajdl v. Mesabi Academy, No. 06-2482 (8th Cir. Apr. 25, 2007), the panel turns aside a comparable claim in a correctional facility, affirming summary judgment. The case had distinctive facts that might have supported a defense verdict: the plaintiff, a youth worker, was stationed at a facility that housed young sex offenders who were participating in therapy. Thus, she would have inevitably been subjected to unwanted sexual behavior and comments. But the panel, instead of relying on this narrow ground, writes in half a page that a court must (as a matter of judicial notice, I suppose) expect that prisoners will behave defiantly: “The operation and atmosphere of these institutions differ substantially from typical work environments and warrant specialized legal analysis. . . . We, therefore, conclude that, in the absence of special circumstances not present here, the conduct of inmates cannot be attributed to an employer in order to show that the harassment affected a term, condition, or privilege of employment.” No word about the feasibility of the facility curbing or punishing sexually deviant behavior, or shielding female employees from the brunt of it.

Tuesday, April 24, 2007

I am foremost — professionally — an advocate for employees, but I am also a citizen in touch with people who do not share my views about employment law. So while (as an advocate) I cheered the Ninth Circuit’s progressive decision in Bates v. United Parcel Service, Inc., 465 F.3d 1069, 18 A.D. Cases 897 (9th Cir. 2006) — affirming an injunction of a per se ban on hearing-disabled drivers under the AD and California law — I confess to being a bit quesy as a citizen. The case cut a bit too close to the “blind pilot” stereotype trumpeted by opponents of the ADA, and the Seventh Circuit recently sliced the other direction in a very similar case, EEOC v. Schneider Nat’l Inc., No. 06-3108 (7th Cir. Mar. 21, 2007) (upholding an employer’s per se ban on drivers diagnosed with neurocardiogenic syncope, a condition associated with fainting).

The en banc Ninth Circuit announced today that it will rehear Bates. With no offense to the excellent panel decision by Judge Berzon, I hope that an en banc decision will explain even more persuasively why the challenged policy played unfair, i.e., that UPS could never explain why it was able to screen hearing drivers individually for safety fitness, but not drivers who had a hearing disability.

Monday, April 23, 2007

Last Friday, the Fifth Circuit issued Bourdais v. New Orleans City, No. 05-30517 (5th Cir. Apr. 20, 2007), a reverse-discrimination challenge to the city’s practice of hiring the highest scoring black and white fire recruits one-for-one. The plaintiffs in this case (52 in all, like cards in a deck) were all eventually hired, but not in the initial round in 1991. Plaintiffs prevailed on liability on their Equal Protection claims, but didn’t get all of the relief they sought, so cross-appeals followed.

The City’s only argument on appeal was that the plaintiffs ought to have brought their suit in 1991, when they were refused employment, instead of 1999. Borrowing the Louisiana statute of limitations tolling rules, the court finds a it a close question but calls it for the successful plaintiffs. It is, indeed, the rare case where the burden of proof on the affirmative defense probably mattered.

Louisiana follows a doctrine of “Contra Non Valentem” which essentially operates as a discovery rule in this case, i.e., suspending the running of the claim while “the plaintiff does not know nor reasonably should know of the existence of the cause of action.” The City had a decent intuitive argument that because two other lawsuits had already been filed challenging the same practice years earlier (Lalland Courtrade), the later-filing plaintiffs should have been on notice that they did not have a cause of action. Ah, but the plaintiffs rejoined, unlike the other two cases — where the claimants were never hired — plaintiffs did eventually become fire recruits. That, combined with their lack of actual knowledge of the other lawsuits (except at the rumor level), was enough to just barely scrape under the wire.

[We cannot conclude that these plaintiffs should have known about or should have investigated potential discriminatory hiring claims. Even if they had knowledge of the Lalla litigation, that knowledge would not necessarily raise serious suspicions among these plaintiffs who NOFD actually hired from the 1991 Register. One reasonable conclusion they could draw is, because they were hired, they were not subject to the same discrimination the Lalland Courtade plaintiffs complained of.

The panel tweaked the “City’s misplaced belief that prescription begins to run once a plaintiff could have known of his claims, which is a critically different standard than the should have known standard actually applicable under Louisiana law.”

Plaintiffs, nonetheless, fail to win (as front pay) an award of pension benefits to compensate them for the delay in hiring. “The dollar amount of damages attributable to the delayed pension benefits is extremely speculative, and given the uncertainty of whether the pensions will ever vest, the district court was within its discretion to find that awarding such damages would go beyond making the plaintiffs whole.” And 17 of the plaintiffs received no back pay at all, on the grounds that they did not establish their eligibility be to hired in 1991.

Thursday, April 19, 2007

There things that sex harassment claimants (and their lawyers) can learn from Holmes v. State of Utah, No. 05-4179 (10th Cir. Apr. 18, 2007) , a multi-plaintiff claim that flamed out on summary judgment:

1. Not every harassing event will continue the limitations period . The case involved a supervisor in the Cedar City branch office of a state agency named Johnson who (according to the summary judgment record) harassed the female staff on a regular basis, despite that his spouse was also an employee in the same office. He was suspended and eventually retired from the office in June 2002, although he continued to pay visits there. For whatever reason, the women waited a year or more to file their charges with the EEOC. And that is where they all ran into trouble. Although the Nat’l R.R. Pass. Corp. v. Morgan deems harassment to be a continuing violation, the claimant must at least cite one event that occurred within the 180/300 day charging period.

One plaintiff, Holmes, had already escaped Johnson’s supervision by December 2001 to work in a different office. She claimed that Johnson continued the harassment on one of his social visits to the Cedar City branch in June 2002 by hugging her in “an inappropriate manner.” But the panel affirms that her claim accrued at the time she switched offices. The physical grabbing six months later by Johnson, the court held, was simply not part of the same harassment she suffered when they both worked in the same office. Notably, Holmes did not make any complaint or file a charge about the June 2002 incident.

2. There must be some nexus between the workplace and the harassment, however slight . Another plaintiff, Stephens, claimed that Johnson stalked and grabbed her off-site in March 2003. She reported that incident to the agency, which in turn barred Johnson from any future social visits or phone calls to the Cedar City office. The panel holds that however severe Johnson’s behavior was, there was no theory that would affix Title VII liability on an employer for harassment by a former employee, offsite: “while the actions of Johnson in allegedly stalking Plaintiff Stephens in March 2003, and in allegedly grabbing her and frightening her may by themselves be considered severe, this court notes, as did the district court, that such actions did not occur on the premises of the employer, or otherwise in connection with her work, and did not involve a fellow employee or supervisor. ”

3. Some courts will insist that every incident of harassment be cited in the EEOC charge, on pain of forfeiture . This case also raised the interesting issue (previously considered in Cotrill v. MFA, Inc., 443 F.3d 629, 97 FEP 1487 (8th Cir. 2006)) of whether a poorly-conducted investigation of a harassment complaint might itself perpetuate the harassment. Here, the plaintiffs contended that “in March 2003 they were interviewed off-site in Cedar City by Mr. Levanger of the defendant’s Human Resources Department (App. Vol. 1 at 20). They allege that they were interviewed without attorneys present, although they had requested to bring attorneys, the interviews were recorded, and the results of that investigation ‘have not been made known’ to them, leaving them to conclude that the interview was conducted at the behest of ‘Risk Management,’ was not for ‘their benefit’ and was not conducted in good faith (id .).”

But whether a ham-handed investigation constitutes a hostile work environment gets no further work-out here, because the employees failed to cite the Levanger investigation in their charges and thus forfeited them. The points to a bitter reality about the Title VII process. Most EEOC charges are uncounselled and are often drafted by EEOC investigators who (though dedicated public servants) do not interview or draft charges with the precision of a trial lawyer. Others are drawn up by lawyers who are not conversant with the niceties of Title VII law. I do not say that either of things happened here, particularly, but the shame is that the EEOC charge-filing process — which ought to be easily navigable by pro se claimants — winds up robbing employees of causes of action when they don’t load the charges up with every fact and legal theory known to them.

Wednesday, April 18, 2007

Here’s a career that got derailed by a PowerPoint presentation. And not, mind you, a scurrilous or sexually harassing slide-show, but simply one that carried on for a bit too long.

In Freadman v. Metropolitan Property, No. 06-1486 (1st Cir. Apr. 18, 2007), an employee afflicted with ulcerative colitis claims that she suffered discrimination and was deprived of reasonable accommodations when she was shifted first into a high-pressure assignment that aggravated her disability, and then demoted. Freadman, who was charged with giving a key presentation to the company’s officers, told her immediate supervisor (named Smith) that she was feeling the pressure of the assignment. By the plaintiff’s account:

“Freadman stated that on June 2, 2000, she advised Smith that she was working too hard, and that she ‘needed to take some time off because [she was] starting not to feel well.’ Freadman also told Smith that ‘some of [her] symptoms may be returning.’ According to Freadman, Smith responded by saying, ‘Just get through the presentation on June 9. Take your time off after. Keep it up. You’re doing great. Everything is going excellent.'”

Alas, things were not so excellent. Freadman ran into trouble with her second-level boss (named Cawley), who said at a June 7 meeting that Freadman’s presentation was clunky, “busy,” overlong and apt to cut into the meeting time. A witness reported “tension” between Cawley and Freadman at the meeting. Though Freadman tried to streamline as Cawley suggested, her introductory slide-show ran long, and the planned break-out sessions had to end early (to Cawley’s consternation). Cawley then directed that Freadman be rotated into another, less responsible position. On these basic facts, the district court granted summary judgment on Freadman’s AD and state law claims.

And even with the typically high-key assist of the EEOC’s Appellate Division (as amicus), the First Circuit affirms that summary judgment. The court holds (bypassing the prima facie examination) that Freadman could not defeat — on her retaliation claim — the proffered reason for her demotion: that Cawley found the slide-show and Freadman’s attitude not acceptable. The company, far from being insensitive, gave Freadman plenty of time to recover from her affliction by way of medical leave and part-time assignments, and that it was not evidence of pretext that the company arguably did not follow its own progressive discipline system. The reasonable accommodation (plaintiff’s request for relief from having to prepare the slide-show) failed because her requests were not definite enough to oblige the company to respond.

“[Freadman] argues it was clear that her request was to take time off starting on June 2, rather than at some unspecified time. However, Freadman told Smith that she ‘needed to take some time off because [she was] starting not to feel well’ (emphasis added). Plaintiff expressed merely a need to take ‘some time off’ without specifying when she would need that time off. Freadman, who had better knowledge than Smith of her condition and symptoms, had some burden to be specific about the accommodation she required.”

The informal process simply did not trigger a duty by the employer to do more. And so the case ends.

Monday, April 16, 2007

Here’s something that, while not especially unique to employment discrimination, does crop up now and then — a trial judge who gets dug so deeply into being “correct” that he/she sanctions the lawyer, rather than brook disagreement. So (apparently) goes the tale in Detabali v. St. Luke’s Hospital, No. 05-15591 (9th Cir. Apr. 16, 2007) , where a routine state-law race/ethnicity discrimination claim (under California’s FEHA) was removed to federal court on grounds of Labor Management Relations Act (LMRA) preemption.

The Ninth Circuit already had a mature line of authority rejecting facial preemption of state-law claims under the LMRA — i.e., just because the claim made contact at some point with a collective bargaining agreement — holding instead that preemption depends on the facts (in particular, whether the claim depends on interpretation of the CBA). But the district court not only found the claims preempted and dismissed them for failure to exhaust remedies, but ordered the employee’s lawyer repleading the complaint to delete all preempted claims. Evidently the plaintiff’s lawyer did not see things eye-to-eye with the judge, and replead some of the former claims in the new complaint anyway. The district court levied a $1000 sanction.

On appeal, the Ninth Circuit reversed the holding that the claims were preempted under the LMR and mandated that the case be remanded back to California state court. It also, perforce, reversed the sanctions. “We hold that the district abused its discretion in imposing sanctions on Katz. Katz’s repleading of Detabali’s FEHA claims preserved them for this appeal and our decision in this case demonstrates the merits of his decision. We believe it would be perverse to uphold an award of sanctions against counsel for taking actions that ultimately preserved his client’s right to proceed with her case. We reverse the district court’s award of sanctions.”

Friday, April 13, 2007

It ought ordinarily be enough to avoid summary judgment in an employment discrimination case to present (along with a prima facie case) a genuine issue of material fact that the reasons given by the employer are factually false. But the panel in Macy v. Hopkins Co. Sch. Bd of Ed., No. 06-5722 (6th Cir. Apr. 12, 2007), despite recognizing that the employee technically met her burden in this fashion, affirms summary judgment on a ground not presented by either party on appeal — issue preclusion.

The narrative is a tragic one for all concerned. The employee in this case, a physed teacher, suffered two successive head injuries and (from all appearances in the opinion) spiraled into a chaotic mental state. The school district granted her accommodations to avoid stressful conditions, but Macy complained numerous times that the board wasn’t living up to its end of the bargain. She finally filed an EEOC charge in February 2000.

But then an incident in November 2000 overshadowed everything else: she was charged criminally with shouting death Thereats at a group of students who had been hanging around the school playing basketball. In the ensuing years, she lost her license to teach in an administrative hearing and was convicted of “terroristic Threatening in the third degree.” Meanwhile, her ADA case for discrimination and retaliation proceeded in federal court. The district court granted summary judgment on the ground that the employer had legitimate grounds for its actions — a series of over thirty complaints of misconduct, culminating in the Thereat to kill a group of boys.

The panel adhered (as binding precedent) to circuit law requiring that an employee establish that a termination was motivated “solely” because of disability under the ADA. (The panel recognizes in a footnote that this strict causation requirement is a minority view, and most likely erroneous, but nevertheless represents the law of the circuit.)

Deploying the indirect method of proof, the court finds the employer established a legitimate and non-discriminatory basis for termination (the death Thereats), and then holds that the employee was bound by collateral estoppel to the criminal verdict and the administrative revocation of her license. “Thus, whether or not Macy actually committed those particular infractions and whether they constituted legal cause for termination under Kentucky law are issues that were litigated, decided, and were necessary for the judgment in Macy’s administrative case. Accordingly, she is precluded from arguing in federal court that she did not actually commit those infractions and that the Board’s proffered reason has no basis in fact.”

It also made no difference that another faculty member (named Bush) had also been reprimanded, but not fired, for making a Thereat about a student, because the plaintiff did not take time to develop that evidence to show how it was comparable. “[Superintendent] Stevens testified that Bush made a ‘Threatening comment’ and used the word ‘kill’ in talking to a teacher’s aide in reference to a student and that at least one student overheard this, but Stevens did not provide any further details about the circumstances of that incident. Macy did not introduce testimony from Bush, the teacher’s aide, or the student, or any other additional evidence about the incident.”

Tuesday, April 10, 2007

The employees made out all right in two decisions today.

In Bombaci v. Journal Community Publishing Group, Inc., No. 06-2222 (7th Cir. Apr. 10. 2007), the employer won summary judgment against the EEOC and the employee in a co-worker harassment case, and the employee soldiered on alone on appeal. The Seventh Circuit reverses, and holds (in so many words) — (1) that a dispatcher (Stoll) in a printing plant with light administrative duties (such as handing out paychecks) was not a “supervisor” charged with bringing employee complaints to management; (2) that the real manager in the plant (Creasey), who indisputably “kept his office door shut during the day and sat at a desk facing away from the door,” was not on “constructive notice” of high jinks going on the plant floor; but (3) that an admission by Stoll that she told Creasey that “the guys were harassing [Bombaci]” and that Creasey told Stoll to “go up front, to say something up front” was at least arguably admissible under FRE801(d)(2), and that “Creasey allegedly passed off [his] important responsibility to Stoll, a lower-level worker with no authority to remedy sexual harassment.” Thus, “where a supervisor receives a credible complaint of sexual harassment and no effort is made to contact the alleged victim,” the record provides a triable issue of fact on negligence.

The Eighth Circuit also reports a good decision — Christensen v. Titan Distribution, Inc., No. 06-2760 (8th Cir. Apr. 10, 2007) — upholding an age and disability discrimination jury verdict for an employer (under federal and Iowa law), culminating after post-trial motions in $97,500 in punitive damages, $65,000 in emotional distress, $78,209 in back pay, $78,209 in liquidated damages (for willfulness), $47,525 in front pay and $54,875.80 in attorneys’ fees and costs. At trial, in a case proceeding largely on circumstantial evidence (an age-58 manager on disability is replaced by an able-bodied 25-year-old), the record revealed that “Titan employees provided conflicting evidence as to who made the decision not to hire Christensen. [Manager #1] testified that he decided to eliminate the third-shift supervisor position by July 2002, but he also claimed that [Manager #2] made the decision not to hire Christensen. [Manager #2], however, testified that no one told him that the third-shift supervisor position had been eliminated. [Manager #2] claimed that he wanted to hire Christensen and did not know that Titan did not intend to hire him until receiving an e-mail from [Manager #3] on August 16, 2002. [Managers ## 3 and 4], however, both testified that they did not make the decision not to hire Christensen.” If the defense team couldn’t straighten out the employer’s story about who made the critical decision, and all that the jury is left with is finger pointing, the employer deserves to lose (and punitive damages to boot).

Friday, April 6, 2007

There frustrated pro se employment discrimination claimants, There appeals to the D.C. Circuit. Who comes out a winner?

One plaintiff-appellant, Williams v. Washington Convention Ctr. Auth., No. 05-7170 (D.C. Cir. Apr. 6, 2007), doesn’t even get out of the gate with his ADEA case. The employee’s lawyer died in 2004, and the employee picked up his own case pro se. He even went the extra mile to write the court, asking it to send notices to him personally. Regretably, the notice of entry of summary judgment was not mailed to the plaintiff and he only discovered the dismissal a month after the 30 days for taking an appeal ran. He procured an order of the district court to file a notice of appeal out-of-time. But the D.C. Circuit says, . . . nay. The exception of “unique circumstances” to the timely-filing rule (Fed. R. App. P. 4) does not cover a would-be appellant who took no action within the requisite 30 days, and the district court lacked authority to extend the time for filing the notice once the 30 days ran.

A more complicated jurisdictional issue arose in Greenhill v. Spellings, No. 06-5030 (D.C. Cir. Apr. 6, 2007), where the employee (again pro se on appeal, only this time supported by appointed counsel) sought to enforce a Title VII settlement with the Department of Education. The employee believed that the agency caused her to lose a job with the Department of Justice by giving her a bad reference. Because the employee sought to recover in excess of $10,000 in damages (along with equitable relief), the district court held — and the D.C. Circuit affirmed — that jurisdiction under the Tucker Act (28 U.S.C. §§ 1346(a), 1491(a)(1)) resided in the Court of Federal Claims. Though the underlying dispute arose on an EEO claim, the court holds that the face of the complaint stated a contractual claim for damages and — in the light of very recent case law — such case had to be brought in the court of claims. The bright spot: dismissal was without leave to refile in the right court, so the case (though stalled) now moves on.

Fortunately, pro se plaintiffs are redeemed by the third and final case, Woodruff v. Peters, No. 05-5033 (D.C. Cir. Apr. 6, 2007), in which the employee obtains reversal of summary judgment against the Department of Transportation in a Rehabilitation Act case. The court finds a triable issue of fact in regards to a reasonable accommodation that the agency withdrew (a limited workschedule and periodic breaks): “While it is far from clear such accommodations are reasonable, if we view the facts in the light most favorable to Woodruff his case is at least strong enough to escape summary judgment. The FAA Telecommuting Handbook anticipates “[e]mployees may telecommute . . . as frequently as five days a week.” The FA allowed another employee in Woodruff’s division to lead a team in Washington, D.C., while working in Florida. Dolan Dep. 55-59 (Aug. 11, 1998). Such evidence, together with Woodruff’s description of his team as “mostly . . . self-directed,” suggests Woodruff did not have to be physically present in the office. Indeed, both [supervisors] allowed Woodruff to work with the proposed accommodations for months, casting doubt on the suggestion that the accommodations would impose undue hardship on the FAA, or that even with such accommodations Woodruff would be unable to perform all the essential functions of his job.”

Wednesday, April 4, 2007

The Fifth Circuit yesterday issued a revised opinion in Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., No. 06-10267 (5th Cir. Apr. 3, 2007), a uncommonly good decision for employees in a tough circuit. (The revision, to all appearances, merely corrected an editing flub in the original March 20 decision and did not deviate from the original analysis.) The employee — an African-American sales manager — was passed over for a promotion to vice president, in favor of a white lateral hire from Coca-Cola (Ted Koester). Now in the position of having to report directly to the man who passed him over, Burrell endured various conflicts and run-ins with Koester — and complained about racial discrimination at Dr. Pepper — until he was fired on grounds of “insubordination.” Burrell’s Title VII lawsuit alleged failure to promote in the basis of race, and termination for both race and retaliation. Although the termination claim whiffed on appeal, the Fifth Circuit reversed and remanded summary judgment on the promotion claim. It determined that a jury could find that the reason given for Koester’s hire (i.e., his superior “purchasing experience”) was (1) objectively untrue (Burrell had considerably greater relevant experience), and (2) inconsistent with the written explanation that it gave the EEOC in responding to Burrell’s charge (in which it touted Koester’s “bottling experience” instead). Regrettably, Burrell’s claim is now worth only the incremental back pay from October 2002 to February 2003 (the termination date), plus whatever legal relief a jury might be persuaded to award. But it’s not nothing.

Is evidence that an employer pressured a former co-worker into signing an affidavit — supporting the company, on a motion for summary judgment — evidence of pretext? Apparently not if the affidavit would not have affected the outcome, writes the Seventh Circuit in Barricks v. Eli Lilly & Co., No. 05-3771 (7th Cir. Apr. 4, 2007): “Barricks also argues that Lilly intimidated one of her female co-workers from signing an affidavit in support of Barricks’s motion for summary judgment, and that this shows that the company knew that its case was weak. But the affidavit, even if it had been signed and admitted as evidence, would not have affected the result at summary judgment, for its assertions, including a claim that [her supervisor] expected female employees to do more ‘housekeeping’ (i.e., cleaning and maintenance) work than men, made it into evidence in other ways, including through Barricks’s own affidavit. Cf. Great Am. Ins. Co. v. Horab, 309 F.2d 262, 264-65 (8th Cir. 1962) (Blackmun, J.) (where interference with witness did not affect result, excluding evidence of interference was not abuse of discretion).”

Finally, the Eighth Circuit yesterday in Thomas v. Corwin, No. 06-1496 (8th Cir. Apr. 4, 2007), held that it did not violate the ADA (42 U.S.C. § 12112(d)(4)(A)) for a police department to subject one of its typists (in a juvenile unit) to a fitness-for-duty psychological exam, because the test was “job-related and consistent with business necessity”: “As a Juvenile Unit employee, Thomas interacted with the parents or guardians of troubled children, assisted Juvenile Unit detectives, and served in a back-up security capacity. Thomas previously communicated to the defendants her concerns regarding the Juvenile Unit’s work situation and safety. Thereafter, Thomas visited the emergency room for an anxiety attack, a condition her primary care physician and psychologist attributed solely to ‘work-related stress and anxiety,’ and which necessitated a There-week leave of absence. During this time-period, [Thomas’s supervisor, Sgt. Janice] Hargarten unsuccessfully attempted to ascertain the cause of Thomas’s work-related stress. Thomas then proposed to return to her same position in an unchanged environment, despite her repeated refusal to articulate the basis for her work-related stress. On these facts, KCPD had legitimate reasons (1) to doubt Thomas’s capacity to perform her work duties without being overcome by stress and anxiety, (2) to take proactive steps to ensure the safety of the public, Thomas and other Juvenile Unit employees, and (3) to seek reliable attendance from Thomas, an employee within a small division requiring twenty-four-hour staffing.”

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