June 2007

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

Daily Developments in EEO Law
by Paul
Mollica ©2007

Friday, June 29, 2007

Does an employer’s demand that an employee take FMLA leave constitute evidence that it “regards” an employee as disabled for purposes of the ADA? The Tenth Circuit holds that it does not, in Berry v. T-Mobile USA, Inc., No. 05-1533 (10th Cir. June 27, 2007), affirming summary judgment. The employee, a sales manager, had MS which caused extreme fatigue and related problems. After termination, supposedly for poor performance, he brought suit for disability (plus age and gender) discrimination. The district court granted summary judgment on the ADA claim on the ground that he was neither (1) substantially limited in one or more major life activities, nor (2) was he so regarded by Sprint.

Berry’s key argument on his “regarded as” claim was that the employer asked him to take leave to get treatment for his MS. This proved unconvincing: “[T]he leave provisions of the FMLA are wholly distinct from the statutory definition of ‘disability’ and an employer’s reasonable accommodation obligations covered under the ADA. As courts have recognized in various contexts, ‘there may be some parallels between the ADA and FMLA, but applicable regulations explicitly state that ADA’s ‘disability’ and the FMLA’s ‘serious health condition’ are different concepts, and must be analyzed separately.'”(quoting Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1295 (11th Cir. 2006)).

In a parallel case, Rolland v. Potter, No. 06-2536 (1st Cir. June 28, 2007), the court holds that the USPS’s decision to place the employee with a ruptured disc in a “rehab” job does not estop the employer from later denying that the employee is “disabled” for purposes of the Rehabilitation Act. A “rehab job” is Postal Service argot for a position “that the USPS provides to an employee who has permanent restrictions resulting from an on-the job injury.” Such positions are mandated by the Federal Employees Compensation Act (FECA). But as with the FMLA, the First Circuit finds a disconnect between the definitions of “disability” between the FECA and the Rehabilitation Act: “Eschewing the Rehabilitation Act’s more demanding definition of the term ‘disability,’ Congress defined the term ‘disability’ for workers’ compensation purposes as the ‘incapacity, because of an employment injury, to earn the wages the employee was receiving at the time of the injury.’ 20 C.F.R. § 10.5(f).” Affirming summary judgment, the court found that the employee was able to perform daily activity (including, for New England, the all-important task of snow-blowing) and did not meet the “demanding” standards for proving disability.

Thursday, June 28, 2007

Yesterday, we were graced with three EEO-related decisions [and again, sorry about no links]:

1. Sims-Fingers v. City of Indianapolis, No. 06-2198 (7th Cir. June 27, 2007), is a Equal Pay Act/Title VII pay discrimination case filed by a female park manager, who claimed that the city paid its male park managers more than she earned. Summary judgment is affirmed at the prima facie stage because the court holds that the plaintiff never identified “equal” work. The park facilities are simply too different from one another to present comparable management responsibilities. The closest male manager (Robinson) ran a park 17 times larger than hers, and which had a pool. Moreover, “[t]he pay differential between the plaintiff and Robinson is less than 2 percent, and we do not see how anyone could say that her work and his are so far equal that it should be inferred that he is overpaid relative to her.” The court concluded, as to the EPA, that its “proper domain . . . consists of standardized jobs in which a man is paid significantly more than a woman (or anything more, if the jobs are truly identical) and there are no skill differences.” (The absence of comparable duties scuttled the Title VII claim as well.)

2. In re Rodriguez, No. 06-1988 (6th Cir. June 27, 2007), was a claim in bankruptcy, brought under Michigan’s Elliot-Larson Act. While the employer mostly preserved its summary judgment on appeal (for race/national origin hostile-environment, constructive-discharge, and retaliation claims), the employee — actually, the trustee of the estate – won a remand of his promotion claim. The panel majority found that the record featured direct evidence of discrimination, namely affidavits of two co-workers who testified that the hiring manager said he did not promote plaintiff because of his accent, “language” and “how he speaks,” and because he was “difficult to understand.” This evidence was admissible non-hearsay under FRE801(d)(2)(D) and a jury could find (if it credited this evidence) that accent and language proficiency were a proxy for national origin discrimination. (A third panelist, concurring, would have reached the same conclusion by the indirect, McDonnell Douglas approach.)

3. Frahm v. United States, No. 05-1825 (4th Cir. June 27, 2007), involved an employee’s claim that the IRS reneged on a settlement of a Rehabilitation Act claim, failing to purge her personnel file of an allegedly discriminatory suspension. The agency did not dispute that it violated the settlement, but first defended that the breach of contract action could not proceed in federal district court. The district court agreed and transferred the case to the Court of Claims. But the Court of Claims in turn held that because the contract did not provide for monetary relief in the event of a breach, it too lacked jurisdiction. On return to the district court, the judge ordered that the employee was entitled to no relief and dismissed the case. On appeal, the panel held that the employee’s only remedy under the contract was to refile her original claim of disability discrimination. And even without this language, the panel held that in EEO cases against the federal government, 29 C.F.R. § 1614.504(a) limits remedies for breach of a settlement agreement to either having the “terms of the settlement agreement be specifically implemented or, alternatively, [having] . . . the complaint be reinstated for further processing from the point processing ceased.”

Wednesday, June 27, 2007

After having blundered service of his ADA complaint on the corporation (by serving the summons on a registered agent who was also a defendant, in contravention on FRCP 4(c)), plaintiff’s only hope in Albra v. Advan, Inc., No. 06-15969 (11th Cir. June 26, 2007) (per curiam), was liability against the individual defendants. As anyone who regularly litigates EEO cases knows, the U.S. Courts of Appeals have uniformly rejected individual liability under the ADA for Title I (discrimination in employment). Moreover, the Eleventh Circuit had previously held that 42 U.S.C. § 12203(a), the general anti-retaliation section implicates individual liability for violations of Title II (discrimination in public services). Shotz v. City of Plantation, Fla., 344 F.3d 1161 (11th Cir. 2003). This section, notably, uses the term “person” instead of “employer” to describe the operative actor (“[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter . . . .”).

Alas for the poor plaintiff, the panel — finding this an issue of first impression — holds that the word “person” in this section only refers to statutory “employers” when the claim arises under Title I. “In reaching its holding, the Shotz panel expressly declined to decide whether individual liability is also precluded for violation of the ADA’s anti-retaliation provision in the employment context.” Instead, the panel relies on 42 U.S.C. § 121171(7), which incorporates Title VII’s definition of “employer”: “And although Title VII defines the term ’employer’ to include ‘persons,’ and the term ‘persons’ is defined to include ‘individuals,’ 42 U.S.C. § 2000e(a)-(b), this court has long held that individuals are not amenable to private suit under Title VII.” The panel reaches the same result under Florida’s own civil rights statute.

On the plus side of the ledger, the Sixth Circuit restores a $75,000 punitive damage award for Title VII sex harassment in Parker v. General Extrusions, Inc., No. 06-3353 (6th Cir. June 27, 2007). The district court believed that the employer prevailed on its Kolstad defense by establishing good faith compliance with Title VII in its handling of Parker’s complaints. But the panel, reviewing the record de novo but with all inferences drawn in favor of the jury verdict, holds that the jury could have found that the human resources manager (Maloney) charged with protecting Parker from (rather gross) harassment was entirely derelict (failing to investigate complaints, issuing light punishments, disclosing facts about the investigation publically to possibly embarrass the employee, failure to refer investigation to upper-management, even chuckling along with some of the name-calling).

Absence of actual malice toward the plaintiff did not erase the recklessness of his behavior. “Viewing all this evidence in its totality and drawing all reasonable inferences in favor of the plaintiff, a rational fact-finder could plausibly choose to credit . . . testimony that the company was out to get Parker because of her continued complaints and, therefore, that any investigation into those complaints was, at best, half-hearted and, at worst, a sham. Failure to engage in adequate investigation – not once but on multiple occasions – coupled with conduct intended to embarrass and ultimately drive the plaintiff out of the company, is legally sufficient to fulfill the “malice or reckless disregard” standard.” The court also noted that the good-faith defense might not even be available in a situation such as this, where a management-level employee failed to rectify a hostile work environment (citing a Tenth Circuit case, McInnis v. Fairfield Communities, Inc., 458 F.3d 1129, 1138 & n.4 (10th Cir. 2006)).

[Forgive the lack of links this week, but I am working remotely, away from wireless service and have limited capability. The cases may be found on the respective courts’ websites.]

Friday, June 22, 2007

Expecting to read yet another affirmance of summary judgment in a disability discrimination lawsuit, I was heartened instead by Jones v. Potter, No. 06-3845 (6th Cir. June 20, 2007) , a case that helps restore some order to Rule 56 procedure in that circuit.

The facts, to begin with, illustrates my plaintiff-lawyer axiom that you shouldn’t represent the client who throws the first punch. That may slightly overstate the case here, but the USPS employee here confessed minimally to contact that might have been taken as provocative. After being rebuffed for a ride home by a co-worker, a confrontation erupted on the dock. The employee testified:

“I come in the building like I usually come in with [co-worker] Cynthia. And I said, ‘Thank you.’ And she said, ‘Thank you for what?’ I said, ‘All I asked you was for a ride and if you couldn’t, to let me know.’ And she was putting a package in an APC [adjustable parcel container]. I was talking to her in her ear. I was close. And she turned around and it knocked the coffee out of my hand. And I said, ‘That’s why we can’t make it, is because you be acting so crazy.’ She turned and put her hand in my face like, ‘Talk to the hand.’ I moved her hand out of my face. And she said, ‘Leave my work area’, twice. Once she said it. And she said it loud. I turned around and I walked away. I went to my work area.”

The employee Cynthia took a different view of things (the arbitrator reported claims of Jones ” having ‘cursed’ the involved co-worker, called her a ‘bitch’ . . . forced her arm from his face and/or pushed her against a mail container, . . . entered her work area in a ‘confrontational’ posture, having “scolded” her and having ‘touched’ her”). USPS — adopting a zero-tolerance approach to workplace fighting — fired the plaintiff.

Jones fought the decision twice. First, he successfully arbitrated the termination, resulting in his return to work with all but 30-days back-pay restored. He also sued under the Rehabilitation Act, claiming that the fighting excuse was a pretext to fire him because of his workplace injuries and resulting disabilities. (There were also race, gender and retaliation claims.)

It will not surprise a regular reader here that the plaintiff eventually lost this case, both in the district court and on appeal, on the ground that the zero-tolerance rule was a legitimate, non-discriminatory and non-pretextual basis for Jones’s termination. But the district court made such a botch of the decision, and the USPS pressed such an aggressive position, that the panel took steps to correct the analysis at several turns.

1. If anything, the Sixth Circuit may have dropped the bar a little more at the prima facie stage, contending that even a record falling below preponderance-of-the-evidence will trigger the burden of production: “His burden is ‘not onerous,’ see Burdine 450 U.S. at 253, and requires less than a typical preponderance-of-the-evidence showing.”

2. The prima facie burden in a Rehabilitation Act case does not include present evidence of an inference that disability was the sole reason for the termination: “To be sure, this court has stated on at least one occasion that a plaintiff seeking to establish a prima facie case under the Rehabilitation Act must show that the adverse employment decision that he suffered occurred “solely by reason of [his] disability.” Peltier, 388 F.3d at 989. But this formulation of the standard is inconsistent with this court’s seminal disability-discrimination decision in Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir. 1996), and imposes too great of a burden upon the plaintiff at this early stage of the McDonnell Douglas inquiry.”

3. That affidavits introduced by the employee (by two co-workers) “required the fact-finder to apply inferences” did not render them inadmissible at the summary judgment stage or unworthy of any weight. “Simply because evidence is not ‘direct’-in that its meaning cannot be understood without one or more inferential steps-does not render that evidence insufficient to defeat summary judgment. The summary judgment standard stands for the contrary proposition: All inferences must be drawn in the nonmoving party’s favor unless they are ‘unreasonable’ or ‘impermissible.'”

4. More generally, “[We also reiterate that “requir[ing] the fact-finder to apply inferences” is precisely what the summary judgment standard contemplates, and that ‘direct’ evidence is not required by the McDonnell Douglas framework for a plaintiff to defeat a motion for summary judgment. In fact, McDonnell Douglas comes into play only where a plaintiff lacks direct evidence of discrimination, as is typically the case.”

Ultimately, the court finds that although the plaintiff had presented a genuine issue of fact about whether the employer had mixed-motives (that the employee violated the zero-tolerance standard and was also physically not up to the job), the Rehabilitation Act does not recognize mixed-motive analysis and so the issue was not material for purposes of avoiding summary judgment.

Monday, June 18, 2007

For the second time in two days (see the 6/15/07 post, supra), we see a split in the circuits over an EEO-related issue — and, coincidently, again a repudiation of a decision signed by Judge Richard Posner of the Seventh Circuit.

Employee sues the SEC for disability discrimination, yet makes no specific demand for emotional distress damages. Nevertheless, the magistrate judge deems that the employee placed his mental condition “at issue” — alleging “that the SEC’s actions caused him to ‘develop [] serious hypertension,’ ‘ha[ve] damaged his health,’ made it harder for him to control his weight, and resulted in stress, humiliation and loss of enjoyment of life” — and declines to quash a subpoena for psychotherapy and psychopharmaceutical records for the plaintiff. Below and on appeal, the plaintiff objects that Jaffee v. Redmond, 518 U.S. 1 (1996), placed such records under privilege and that he did not impliedly or expressly waive that privilege.

While some courts have found that any claim for damages associated with emotional injury impliedly waives any privilege over psychotherapy records (including Judge Posner’s opinion for the Seventh Circuit in Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006)), the D.C. Circuit takes another path in Koch v. Cox, No. 06-5134 (D.C. Cir. June 15, 2007):

“[We hold that a plaintiff does not put his mental state in issue merely by acknowledging he suffers from depression, for which he is not seeking recompense; nor may a defendant overcome the privilege by putting the plaintiff’s mental state in issue. A plaintiff who makes no claim for recovery based upon injury to his mental or emotional state puts that state in issue and thereby waives the psychotherapist-patient privilege when, consistent with the Supreme Court’s analogy in Jaffee, 518 U.S. at 10-11, he does the sort of thing that would waive the attorney-client privilege, such as basing his claim upon the psychotherapist’s communications with him . . . or, as with the marital privilege, ‘selectively disclos[ing] part of a privileged communication in order to gain an advantage in litigation.’ . . .” [citations omitted]

The court also finds that the district court abused its discretion in holding that the employee expressly waived the privilege. Although the employee initially signed releases of his medical records to the SEC, each release reserved Koch’s right to “revoke this Authorization at any time, [in writing] … except to the extent that action has already been taken in reliance [upon] this Authorization,” tracking language issued by the U.S. Department of Health and Human Services pursuant to the Health Insurance Portability and Accountability Act (HIPAA), which permit revocation “except to the extent that … (i) The covered entity has taken action in reliance thereon,” 45 C.F.R. § 164.508(b)(5)(I), and which define a covered entity as, among others, a “health care provider,” id. § 160.102(a). The appeals panel held that the employee validly revoked the release, and the SEC was not a “covered entity” that could claim reliance.

Friday, June 15, 2007

Buckhannon Board & Care Home, Inc., v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), held that fee-shifting for “prevailing parties” is not ordinarily allowed for private settlements, absent a “judicially sanctioned change in the legal relationship of the parties,” such as a consent decree. Some courts have found that decision in tension with a prior precedent, Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546 (1986), which affirmed a fee award under the Clean Air Act for post-decretal enforcement of a consent decree through administrative action, even though counsel’s efforts did not culminate in a new judgment.

The Tenth Circuit holds in Johnson vs. City of Tulsa, No. 05-5064 (10th Cir. June 14, 2007) — a case involving a consent decree resolving race and national origin discrimination claims against the Tulsa police department — that class counsel could collect attorneys fees for post-decree enforcement and monitoring. Plaintiffs obtained a consent decree resolving those claims, then expended considerable effort (laid out in detail in the opinion) carrying out the terms of the order. The district court, though, denied any fee award for the post-decretal phase, citing the absence of a fee provision in the consent decree and Buckhannon .

The court held that the class counsel were entitled — even in the absence of a fee provision in the agreement — to some kind of award for their “reasonable” and “effective” efforts, though it remanded for a more detailed examination of which efforts were directed at enforcing the decree itself (“the fruit of the decree”), as opposed to continued investigation of lingering race discrimination. In so holding, the court splits with Judge Posner’s decision for the Seventh Circuit in Alliance to End Repression v. City of Chicago, 356 F.3d 767 (7th Cir. 2004): “In light of Delaware Valley and this circuit’s precedents, we cannot accept the proposition that attorney fees for post decree efforts are compensable only if they result in a judicially sanctioned change in the parties’ legal relationship. The Decree itself was such a change, and attorney fees incurred for reasonable efforts to enforce that change-that is, protect the fruits of the Decree-are compensable.”

Tuesday, June 12, 2007

Seldom do I get to write the words “today, both the Fourth and Eleventh Circuits wrote decisions favoring civil rights plaintiffs”; it is, indeed, a day to celebrate.

In Russell E. Adkins, M.D. v. Arthur P. Christie, No. 06-13107 (11th Cir. June 12, 2007), the employee — a surgeon — claimed that he suffered racial discrimination in violation of §§ 1981, 1983 and 1985 at the hands of the hospital’s peer review board, which extended his probation, issued warning letters and eventually terminated his practice.

The issue presented on appeal (of a summary judgment on qualified immunity) was the district court’s refusal to compel production of the peer review materials, citing a state law privilege:

“Adkins requested documents relating to peer review of all physicians at the hospital during the seven years that Adkins was a member of the hospital staff. In response, Defendants filed a motion for a protective order, arguing that Adkins was seeking information relating to the peer review process, which was covered by the Georgia medical peer review privilege. Although the court concluded that the privilege applied to federal civil rights actions, it nevertheless ordered Defendants to provide Adkins with descriptions of all incidents giving rise to peer review, without disclosing the documents themselves. The court limited production to peer review documents covering physicians it deemed similarly situated to Adkins, namely physicians in the Department of Surgery during a five-year time period, rather than documents relating to all physicians with staff privileges at HMC during the seven-year time period requested by Adkins.”

The court of appeals reverses field on the imposition of the privilege, the limited scope of discovery and the summary judgment. The court holds, citing cases from the Fourth and Seventh Circuits, that there is no federal common-law privilege for peer review files: “The district courts are well-equipped with a variety of mechanisms to ensure that peer review materials, once furnished through discovery, are not compromised by wayward hands, i.e., redaction of extraneous or confidential information, in-camera review and protective orders. The ‘public good’ concerns advanced by the defendants may capably be served in the absence of a medical peer review privilege.”

It also holds (referring to the “liberal spirit” of the federal rules!?!) that limiting discovery only to the surgical wing for five years was unduly narrow — “While the Department of Surgery is an autonomous unit within the Hospital, some of the infractions at issue arose from hospital-wide rules, such as the requirement to complete medical charts in a timely manner. Additionally, Adkins is entitled to compare the general standard that hospital physicians were held to in order to establish that his punishment was excessive. The limited number of physicians in the Department of Surgery does not allow Adkins to place his case in the context of larger disciplinary processes of the hospital and thus place an excessive burden on his ability to pursue his claim.”

Meanwhile, the Fourth Circuit affirms nearly all of a verdict (back pay of $197,084, and $200,000 compensatory and punitive damages) and attorney fees (though reduced to $163,440), for a prevailing Title VII retaliation plaintiff in Depaoli v. Vacation Sales, No. 06-1282 (4th Cir. June 12, 2007). Examining § 1981a language seldom considered, describing the Title VII caps, the court holds that “the current or preceding calendar year” refers to the year of the violation, rather than the year that the judgment is entered. “Reading §§ 1981a(b)(3) and 2000e(b) together, it becomes apparent that the reason § 1981(b)(3) provides no damage cap for employers with less than 15 employees is that such employers are presumed to be exempt from Title VII’s requirements by virtue of § 2000e(b). The interdependence of these provisions requires that they be construed to operate with reference to the same year.”

Monday, June 11, 2007

Our Supreme Court seems to be on a tear (“tear,” as in “rip” or “shred”) to review decisions helpful to employees under the ADEA, and by extension federal EEO law at large.

Last week, it accepted review in Federal Express Corporation v. Holowecki, et al., No. 06-1322, about whether an EEOC intake questionnaire claiming age discrimination not delivered to an employer may nevertheless constitute a “charge.”

Today, it accepted review of Mendelsohn v. Sprint/United Mgt. Co., No. 05-3150 (10th Cir. Nov. 1, 2006), a case where a district court judge was reversed (on a 2-1 decision) following a trial and verdict for the employer. The court was held to have abused his discretion in denying admission of a fired ADEA plaintiff’s trial evidence that other older employees also suffered discrimination in the same reduction in force. The Tenth Circuit’s majority held that where the policy was applied company-wide, evidence of instances outside the employee’s immediate facility was admissible:

“. . . [H]ere, plaintiff claims to be a victim of a company-wide discriminatory RIF. Applying [a] ‘same supervisor’ rule in the context of an alleged discriminatory company-wide RIF would, in many circumstances, make it significantly difficult, if not impossible, for a plaintiff to prove a case of discrimination based on circumstantial evidence. Conceivably, a plaintiff might be the only employee selected for a RIF supervised by a particular supervisor. Meanwhile, scores of other employees within the protected group also selected for the RIF might work for different supervisors. In such cases, the constraints of Aramburu would preclude a plaintiff from introducing testimony from those other employees. Applying [a ‘same supervisor’ rule] to cases of discrimination based on an alleged company-wide discriminatory RIF would create an unwarranted disparity between those cases where the plaintiff is fortunate enough to have other RIF’d employees in the protected class working for her supervisor, and those cases where the plaintiff is not so fortunate. We do not think such disparity should exist.”

Significantly, the opinion was written by Judge Baldock, a former trial judge who would not ordinarily be expected to reverse a verdict on evidentiary grounds. Look for such reasonable thinking to splinter when this case hits the Roberts-Alito buzzsaw.

Wednesday, June 6, 2007

In honor of the box-office success of Judd Apatow’s Knocked Up, here’s a Pregnancy Discrimination Act case brought by a male employee claiming that he was fired from farm work (by a community of nuns!) because of his fiancee’s pregnancy: Griffin v. Sisters of St. Francis, No. 06-3312 (7th Cir. June 6, 2007). The per curiam opinion finds that the male employee fails to state a claim —

“That is not to say that all claims relating to pregnancy must be brought by women, but male plaintiffs, like their female counterparts, must prove that they suffered adverse employment actions because of their sex. For example, male plaintiffs who challenged an employee benefits plan that afforded greater benefits to female employees who became pregnant than to the pregnant wives of male employees prevailed under Title VII because the policy discriminated against men. . . . In this case, however, Griffin does not assert that he was fired because of his sex.

“Instead, the plaintiffs argue that the PDA prohibits employers from taking “any negative employment action based on reproductive rights” and protects females and males equally. This interpretation, however, lacks support, and it ignores that pregnancy discrimination is, by statutory definition, discrimination “because of sex,” not sexual activity or reproductive capacity.”

The fiancee, also an employee, brought her own claim for pregnancy discrimination. On this, the court affirms summary judgment citing more conventional grounds. It holds that there was a genuine issue of material fact about whether the decision maker knew about the pregnancy (citing evidence that the employee may have been visibly pregnant, and that at least one other employee may have known directly), but concludes that the employee failed to rebut the proffered explanation (i.e., that the farm was going out of the commercial account field, leaving the employee with no duties).

Tuesday, June 5, 2007

Although AARP put up the good fight, AARP v. EEOC, No. 05-4594 (3d Cir. June 4, 2007) ends the organization’s effort (barring a trip to the Supreme Court) to challenge the EEOC’s safe harbor for “the practice of altering, reducing or eliminating employer-sponsored retiree health benefits when retirees become eligible for Medicare or a State-sponsored retiree health benefits program.” The Commission promulgated the rule July 14, 2003, under its authority under 29 U.S.C. § 628, allowing the EEOC to “establish such reasonable exemptions to and from any or all provisions of [the Act] as it may find necessary and proper in the public interest.”

AARP and a clutch of individuals sued under Administrative Procedure Act, 5 U.S.C. §§ 551, et seq. and the ADEA, claiming that the regulation directly violated the ADEA or exceeded the EEOC’s rule-making authority. While AARP prevailed initially in the district court, the Supreme Court intervened with National Cable and Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005), a decision that tilts heavily in favor of agency rulemaking. The district court then reversed gear and granted summary judgment for the EEOC.

On appeal, the panel affirms that the EEOC adequately supported the exemption: “Here, the EEOC issued the proposed regulation in response to its finding that employer-sponsored retiree health benefits were decreasing. 68 Fed. Reg. at 41,543-44. Rather than maintaining retiree benefits at pre-Medicare eligibility levels for all retirees in order to avoid discrimination under the ADEA, some employers chose to reduce all retiree health benefits to a lower level. Id. at 41,546. Further, in addition to rising health care costs and increased demand for retiree benefits, the EEOC correctly noted7 that employers are not required to provide any retiree health benefits, or to maintain such plans once they have been established. Id. at 41,542-43. Retiree benefits often face elimination under these constraints, and the EEOC issued the proposed exemption to ‘permit[] employers to offer [retiree] benefits to the greatest extent possible.’ Id. at 41,543.”

Monday, June 4, 2007

The Supreme Court granted cert today in Federal Express Corporation v. Holowecki, et al., No. 06-1322, presenting the following question:

“Whether the Second Circuit erred in concluding, contrary to the law of several other circuits and implicating an issue this Court has examined but not yet decided, that an ‘intake questionnaire’ submitted to the Equal Employment Opportunity Commission (‘EEOC’) may suffice for the charge of discrimination that must be submitted pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (‘ADEA’), even in the absence of evidence that the EEOC treated the form as a charge of the employee submitting the questionnaire reasonably believed it constituted a charge.”

Well, as long as the Supreme Court is just mucking around with the charge-filing requirements, it can’t really do much harm to employees, right?

Meanwhile, my Seventh Circuit peels off two Title VII cases argued just two months ago (way to keep up with your docket!), both summary judgment appeals. In Kodl v. Oard of Education Sch. Dist. 45, No. 06-3306 (7th Cir. June 4, 2007), the court affirms summary judgment in a simple age/gender discrimination case. Ms. Kodl alleged that she was forcibly transferred as punishment for her stake in behavior (such as secretly tape-recording a co-worker) in which others supposedly participated, but the Court disagrees that the others are truly comparable. The panel also affirms dismissal of a retaliation claims, finding that the employee’s grievance didn’t assert discrimination claims.

On the other hand, the plaintiff wins reversal in Boumehdi v. Plastag Holdings, LLC, No. 06-4061 (7th Cir. June 4, 2007) , which begins as a classic pay discrimination claim (where the female plaintiff who worked as a press operator received much less than her male colleagues), but eventually blossoms into anti-female harassment (in a traditionally male work-setting), constructive discharge and retaliation. The district court judge, according to the Seventh Circuit, went off the rails on nearly every point. (1) The district court held that because the alleged harassment was not sexual in nature, it was not actionable. But the panel holds that the comments needn’t be expressly sexual, and holds that “[a]jury reasonably could conclude from Boumehdi’s testimony, which alleged that Vega made at least eighteen sexist or sexual comments in less than a year’s time and that similar comments were made ‘very often,’ that Vega’s conduct was pervasive enough to create a hostile work environment.” (2) The panel finds that “a repeated pattern of offensive conduct by her supervisor, retaliatory actions after she complained to human resources, and her employer’s general failure to respond despite repeated complaints” may constitute constructive discharge. (3) The employee could challenge reliance on a poor performance review as pretextual: “Boumehdi’s alleged harasser, was exclusively responsible for the (possibly retaliatory) negative performance review, Plastag’s reliance on the review as a legitimate reason for the denied raise is misplaced. Having determined that a jury reasonably could classify the negative review as retaliatory, . . . we cannot reverse course and say that the review constitutes a legitimate reason for denying Boumehdi a raise.” (4) Paycheck shortages that became more frequent and severe (“i.e., her checks came up hours rather than minutes short”) after the employee complained of discrimination could constitute evidence of retaliation. (5) And Ms. Boumehdi gets a trial on her Equal Pay Act claim, to boot.

Finally, the Eighth Circuit hands down a rare, useful decision in the arbitration field — the corporate giant forfeits an arbitration clause because it waited too long to invoke it: Lewallen v. Green Tree, No. 06-1925 (8th Cir. June 4, 2007). Green Tree filed a proof of claim in Ms. Lewallen’s Chapter 13 bankruptcy in the Fall of 2004, but did not seek to compel arbitration of the disputed claim until she filed an adversary action May 24, 2005, and even then unaccountably waited two more months (after some motion practice in the case) to make its demand. The court noted that while “Green Tree contends that it was powerless to seek arbitration until Lewallen actually filed her complaint in the adversary proceeding,” in other cases “creditors have sought arbitration upon the debtor’s objection to the proof of claim rather than waiting for the debtor to file an adversary proceeding.” Further, the court considered that Green Tree moved to dismiss the adversary action and propounded discovery. All of this, combined with prejudice to the debtor (principally, resources expended in the civil action that could not be recovered), added up to a forfeiture of arbitration. But note that this issue was not finally decided for nearly two years — two years to decide who gets to decide! Another indictment of the so-called efficiency of arbitration.

Friday, June 1, 2007

We “know” under the ADA, because various U.S. courts of appeals tell us, that the need for a ten-minute rest break every hour off ones’ feet is not a substantial limitation in the major life activity of standing. (Dupre v. Charter Behavioral Health Sys. of LaFayette, Inc., 242 F.3d 610, 614 (5th Cir. 2001); Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 186 (3d Cir. 1999)). What about the ability to stand only 30 to 40 minutes at a time? The Seventh Circuit, citing the same cases, says “no.” Williams v. Excel Foundry & Mach., Inc., No. 06-1863 (7th Cir. June 1, 2007). So Mr. Williams, under the ADA, has no standing because he can stand, or at least because he can stand enough. And this is the sort of thing that federal courts must sort out on a routine basis nowadays, with scarcely any regulatory or expert guidance, and in spite of lacking relevant health or physical therapy experience. It is long past time to amend the ADA to define disabilities in a way to ring a close to such pointless inquiries.



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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


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