November 2007

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

Daily Developments in EEO Law

Paul Mollica © 2007

Thursday, November 29, 2007

Taking a detour from EEO law today, here are two First Amendment-tinged cases for your perusal.

First, let’s discuss the right to speak up at a New England town meeting. Two property owners sued for the right to do just that Curnin v. Town of Egremont, No. 07-1876 (1st Cir. Nov. 29, 2007):

“Miriam and Thomas Curnin, who own property but are not registered to vote in the town of Egremont, Massachusetts, appeal from the district court’s refusal to grant a preliminary injunction mandating that they be permitted to speak at Egremont’s town meeting. The Curnins contend that the town meeting is a designated public forum and Egremont’s policy of permitting non-voters like themselves, who own property and pay taxes but are not town meeting members, to speak only at the discretion of the town meeting and its moderator [a kind of parliamentarian] violates their First Amendment rights.”

But the First Circuit, affirming denial of the injunction, ingeniously resolves this issue by holding that a town meeting is a legislative body — not a public forum — and that different standards apply:

“Forum analysis of any sort is inapposite in the context of complaints about the deliberations of a legislative body, as Egremont’s town meeting is. We reject forum analysis entirely as an inappropriate model to apply to the deliberations of a town legislative body. The registered voters who speak and vote at Egremont’s town meeting do so in their capacity as legislators. Since they are not registered voters, the Curnins are not legislators. Nonlegislators have no First Amendment right to address sessions of deliberating legislative bodies.”

Meanwhile in the Fifth Circuit we have a First Amendment retaliation case, Charles v. Grief, No. 07-50537 (5th Cir. Nov. 29, 2007), in which the employee alleges that he was fired on the spot (for “insubordination”) after he e-mailed whistleblowing communications to state legislators about his employer, the Texas Lottery Commission. At the summary judgment stage, the district court denied summary judgment on the firing official’s qualified immunity, on the ground that the record presented genuine issues of material fact (about the reasons for his termination and the Garcetti issue of whether the plaintiff was speaking in his official capacity).

The officer filed an interlocutory appeal of the denial of qualified immunity. The Fifth Circuit holds there is no appellate jurisdiction. While such appeals are permitted, jurisdiction depends on the existence of purely legal questions, while the presence of genuine issues of material facts cuts off that avenue to th defendant:

“when, as here, there is an undeniably genuine dispute between the affected employee and the state actor as to whether the employment action at issue was taken because of the speech (here, the e-mails) or some other, legitimate disciplinary reason (here, insubordination), the denial of qualified immunity indisputably hinges on a fact that is genuinely disputed. At that instant, school is out: The denial of qualified immunity is just not appealable.”

And the court delivered a rebuke to the Texas Attorney General to boot:

“We trust that counsel for Grief, as well as all other counsel who represent public employers and state actors in such roles, will henceforth carefully heed the case law of this court on point and be chary to take appeals of interlocutory orders denying qualified immunity on grounds of the existence of genuine factual disputes, lest they incur penalties, sanctions, damages for, e.g., frivolous appeals, or worse.”

Wednesday, November 28, 2007

Patane v. Clark, No. 06-3446 (2d Cir. Nov. 28, 2007)reveals that (in the Second Circuit, at least) not a lot has changed in pleading an individual employment discrimination case under Fed. R. Civ. P. 8 and 12, notwithstanding Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), apparently edging away from pure notice-pleading standards.

The district court dismissed a Title VII and state law complaint that allegedly fell below the “short and plain statement” standard of Rule 8. On appeal, the per curiam panel agreed that the plaintiff’s sex discrimination allegations — which alleged neither “that she was subject to any specific gender-based adverse employment action,” nor “any factual circumstances from which a gender-based motivation for such an action might be inferred” — were properly dismissed under Rule 12(b)(6).

But the panel reversed the dismissal of the balance of the complaint. The employee, an executive secretary to a professor in Fordham University’s Classics Department (named Clark), claimed that she was subjected to a hostile work environment because her boss was an avid consumer of pornography at the work site:

“Plaintiff alleges that, in 1998, Clark engaged in the gender-based harassment of a female classics professor, Dr. Sarah Peirce. Then, starting in 1999-2000, Clark spent one to two hours every day viewing ‘hard core pornographic’ videotapes on a TV-VCR in his office. Plaintiff claims she was aware of Clark’s habit because the flickering from his TV screen was visible through the glass partition of his office and because she once saw numerous pornographic videotapes scattered on the floor of his office when she knocked on his door to announce a visitor.”

She also alleged that Professor Clark had once used her office computer to download pornography and she was thus exposed to it involuntarily. The Second Circuit held that these allegations were enough to state a claim for sex harassment:

“This Court has specifically recognized that the mere presence of pornography in a workplace can alter the ‘status’ of women therein and is relevant to assessing the objective hostility of the environment. Moreover, Plaintiff alleges that she was regularly required to handle pornographic videotapes in the course of performing her employment responsibilities of opening and delivering Clark’s mail; and that she once discovered hard core pornographic websites that Clark viewed on her workplace computer. Combined with Plaintiff’s other allegations regarding Clark’s sexually inappropriate behavior in the workplace, including her allegation regarding his earlier harassment of Dr. Peirce, and with Fordham’s failure to take any action notwithstanding Plaintiff’s numerous complaints, a jury could well conclude that Plaintiff was subject to frequent severely offensive conduct that interfered with her ability to perform her secretarial functions.” [Citations omitted.]”

The court also held that plaintiff sufficiently alleged retaliation, despite a temporal gap between her first reports of harassment to the employer and removal of her secretarial duties:

“Plaintiff’s claim of causal connection is not based only – or even primarily – on temporal proximity. Instead, Plaintiff alleges that she specifically overheard [Professors] Clark and Evans conspiring to drive her out of her job and that Evans issued a negative performance review that specifically complains about her attitude towards Clark.”

So the case returns for litigation on both the harassment and retaliation claims

Tuesday, November 27, 2007

The management bar’s manipulation of ERISA (the Employee Retirement Income Security Act) — after three nearly-unbroken decades of success — may have hit a snag today, if the U.S. Supreme Court oral argument in LaRue v. DeWolff, Boberg & Associates, Inc., No. 06-856 is any indication. Not even Justice Scalia — a stalwart opponent of expanded liability under this statute — could blow life into the employer’s theory that a plan fiduciary that ignores a participant’s instructions and causes a loss cannot thereby be held liable under ERISA § 502(a)(2).

The case, which was at the pleadings stage when dismissed, reduces to the following basic facts concerning a 401(k) plan (taken from the petition for writ of certiorari):

“Petitioner is a participant in the DeWolff, Boberg & Associates, Incorporated, Employees’ Savings Plan (the ‘DeWolff Plan’), a 401(k) plan administered by DeWolff, Boberg & Associates, Incorporated (‘DeWolff’). Pet. App. 2a. Like many defined contribution plans, the DeWolff Plan ‘permits participants who so desire to manage their own accounts by selecting from a menu of various investment options.’ Id.

“On June 2, 2004, petitioner filed a civil action against DeWolff and the DeWolff Plan (together ‘respondents’). Pet. App. 15a. In his lawsuit, petitioner alleged that respondents breached their duties to him under ERISA by failing to implement the investment strategy he had selected for his employee retirement account. Pet. App. 2a-3a, 15a. As compensation, petitioner requested that respondents return to his retirement account the amount by which it would have appreciated had defendants followed his instructions. Pet. App. 3a, 21a.”

The participant-petitioner presented two issues, but it was the first of these that got the greatest workout in oral argument: “Does § 502(a)(2) of ERISA permit a participant to bring an action to recover losses attributable to his account in a ‘defined contribution plan’ that were caused by fiduciary breach.” That section provides a direct right of action by the participant against an errant fiduciary for losses to a plan. In questioning, Justices Alito and Ginsburg (at pp19-20 of the argument) both signalled that an affirmative answer to this question would probably make unnecessary consideration of the second issue, namely whether the same relief was available under the catchall provision ERISA § 502(a)(3), which provides “appropriate equitable relief” (but not damages) against the plan for violations of ERISA.

At the outset of the argument, Chief Justice Roberts and Justice Scalia (at pp8-18) suggest to the petitioner’s lawyer that a heretofore-unleaded theory — an action against the plan for benefits, under ERISA § 502(a)(1)(B) — might be the true path for Mr. LaRue. But the plaintiff’s lawyer responds that 502(a)(1) relief against the plan was not inconsistent with 502(a)(2) relief against the fiduciary, and that the latter avenue was not impeded by roadblocks (such as Firestone deference and exhaustion) that courts impose under 502(a)(1).

Then the Solicitor General (arguing as amicus for the participant) clears the fog, helpfully reminding the justices (at pp22-23) that any remedy requiring the administrator to satisfy losses for one participant from the plan assets “would likely violate the fiduciary’s duty of loyalty to [the other] participants, the fiduciary duty of prudence . . . under ERISA” and “would also probably violate the terms of the plan, because they have a right to future benefits by the amount that’s in their allocation.” The SG (at p27) expressly disaffirms the ERISA § 502(a)(1)(B) theory in this case because “what’s happened here is he has alleged that there has been a fiduciary breach that caused a loss to the plan. The appropriate remedy for that is a recovery from the fiduciary in its personal capacity to put the money back in the plan. That’s what section 502(a)(2) provides.”

By the time the respondent’s lawyer gets up, we have heard little to suggest in the justices’ queries that the participant lacks a remedy. Respondent-fiduciary’s counsel wobbles off the blocks (at pp30-31) with the suggestion that relief in this case is foreclosed by Massachusettes Mut Life Ins. Co. v. Russell, 473 U.S. 134 (1985), a case holding that a participant may not recover extra-contractual losses against a fiduciary. Justice Ginsburg pounces:

“Russell was about a welfare plan, not a pension — and as I recall, the plaintiff in Russell was seeking medical benefits that she didn’t get and she wanted, not the benefits because she did get those, she wanted straight out damages, compensatory and punitive damages, for delay in the receipt of benefits. That’s quite a different thing from saying I want the contributions made so that I will get the benefits to which I’m entitled.”

Justice Souter (at pp33-35) leaps in, seizing the SG’s argument and cornering the respondent with his own logic:

“And you’re I think saying, we — we agree with you that ultimately (1)(B) couldn’t get you any relief because the fiduciary — the plan doesn’t have any money. And you’re now arguing, well, if you go against the fiduciary, ultimately we have a good defense to that. But the fact is, the question before us is whom do you sue and under what — under what section? And I think your own logic forces you to say that — that has got to be subsection (2).”

And Justice Breyer, challenging the proposition that relief would not be available for a single participant against a fiduciary, pulls off the best hypothetical of the morning (at p39)

“Why isn’t it available under (a)(2)? In both cases, the trustee took 500 diamonds that belonged to the plan and went to Martinique. Now, if you can sue him when the plans are all put in one big safe deposit box with the diamonds, why can’t you sue him when they’re put in 500 small safe deposit boxes?”

As the fiduciary kept giving ground that (at some stage) a claim of loss to individual participants would become one for the loss to a plan cognizable under ERISA § 502(a)(2), Justice Scalia responds in despair (at p50):

“You know I could understand your case if you said even if there were a hundred diamonds, each of them in an individual plan, there still is no loss to the plan until the plan itself has been held liable to make up for the loss. Up until that point, it’s just a loss in each of the individual accounts.

“But you’re not willing to say that. You say at some ineffable point it becomes a loss to the plan. I think there is a clear line between — between saying there is no loss to the plan unless — unless the plan is first adjudicated to be liable; then there is a loss to the plan.

MR. GIES: Well, we certainly –

JUSTICE SCALIA: Prior to that it’s just a loss to the individual account. That makes some sense. I mean, I can understand how that works. I can’t understand how your system works. You’re telling me it depends on how big the diamond is and — and what kind of a breach it was. How can we write an opinion like that?


Mockery, from the justice most likely to support his client, is not a good way to close.

Monday, November 26, 2007

Hey, while you were polishing off leftover pumpkin pie for breakfast and cruising the Black Friday sales, your D.C. Circuit was hard at working reversing a district court’s misconstruction of a Foot note in a consent decree: Segar v. Mukasey, No. 06-5139 (D.C. Cir. Nov. 23, 2007).

The decree was the culmination of three decades’ worth of spadework by plaintiffs, who charged that the Drug Enforcement Administration racially discriminated against a class of African-Americans in promotions. The employees won the liability phase of the case, but the D.C. Circuit in 1984 tossed the remedial decree (setting specific goals and timetables) as too intrusive. There then followed many years of stipulated resolutions, spelling out procedures that the agency was to follow to fill future positions.

This case involved criminal investigators seeking positions in the DEA’s Senior Executive Service (SES). The agreed-upon terms, consisting of seven single-spaced pages, provided that

“each candidate for promotion to the SES must submit his or her application to the candidate’s SES-level supervisor; the supervisor must complete a recommendation and evaluation form for the candidate; the application must be reviewed by an ‘SES selection panel,’ which will develop and submit a list of “best qualified” candidates to the DEA’s Deputy Administrator; the Deputy Administrator will review the list and may remove candidates based on professional responsibility or disciplinary considerations; and the DE administrator will then make his or her selection from the list of candidates provided by the Deputy Administrator, or by lateral transfer of a current SES member.”

In a Foot note, nonetheless, the parties agreed that “nothing in these procedures are meant to reduce the authority of the Administrator in selecting persons to fill DEA positions.”

So in 2002 when the administrator approved a non-minority candidate for promotion outside these channels, the plaintiffs returned to court to enforce the procedures, while the agency (not surprisingly) pointed to the Foot note and claimed that the decree was precatory in essence. The district court, uncontent to call balls-and-strikes in this case, ordered a bench trial on the meaning of the Foot note, decreed the entire agreement void — finding no meeting of the minds — and enjoined the agency to report on whatever progress they had made since 1981 to comply with the original judgment.

The D.C. Circuit reversed, holding that the Foot note was not ambiguous and that the agency erred in deviating from the original stipulated promotion procedures. It observed that:

“a reading [of the Foot note] that permits the Administrator to ignore the written process and choose whomever the Administrator wishes does not ‘systematize the process’ of selection. A reading under which a candidate need never formally apply, and need never have his or her qualifications reviewed by the selection panel, does not establish a transparent process by which a person’s achievements are ‘evaluate[d] . . . in accordance with a standard set of criteria.’ Nor does such a reading implement a ‘non-discriminatory mechanism’ — or any mechanism at all — for selecting DEA special agent executives.”

Thus righting the agency’s misconstruction, and reversing the district court’s error in vacating the agreement, the case was remanded for further proceedings.

Tuesday, November 20, 2007

Mandatory arbitration “agreements” e-mailed as attachments to employees two days before Thanksgiving, accepted by returning to work after the holiday? What fun!

In case redolent of last-week’s Seawright v. American Gen Fin Servs., No. 07-5091 (6th Cir. Nov. 13, 2007) (but this time more favorable to employees), the First Circuit in Skirchak v. Dynamics Research, No. 06-2136 (1st Cir. Nov. 19, 2007), affirms a district court order declining to enforce a class-action waiver under an arbitration policy. After the company was threatened with wage-and-hour litigation, it decided that it needed an arbitration policy with a class-action waiver, which was transmitted as follows:

“Roughly a year before the plaintiffs left the company, on Tuesday, November 25, 2003, at 11:42am, two days before the Thanksgiving holiday, DRC sent a five-line e-mail to all of its employees asking them to read three attached documents describing the company’s new “Dispute Resolution Program”. [The third attachment is not in the record and apparently is not in dispute.] Nothing in the e-mail mentioned that the attachments constituted modifications to the employees’ terms of employment or employment contract, nor that the documents restricted the employees’ rights to a judicial forum, nor that they waived class actions. Further, no response to the e-mail was required, nor were employees asked to acknowledge reading the documents.”

While the policy stated that “[t]he program does not limit or change any substantive legal rights of our employees,” one had to read some ways to find the class action waiver. Indeed, “The fifteen-page Program description, plus its three Appendices, constitutes a thirty-three-page document. An employee who read only the e-mail, the descriptive memorandum and the fifteen-page Program description would not know of the class action waiver.” The waiver read: “The right of any party to pursue a class action for any Dispute subject to the Program shall be waived to the fullest extent permitted by law.” (Emphasis added.) It was found twenty pages into the thirty-three pages of the Program and the Appendices.

Finally, the policy was activated by returning to work after the holiday: “the reader would have to search to find that he or she had consented to the terms of the new Program by returning to work on the following Monday.”

The plaintiffs in this case eventually consented to arbitration, but on appeal continued their objection to a class waiver hidden like a Russian nesting-doll in an e-mail attachment. The First Circuit holds that although it may be possible to e-mail an arbitration policy and make it stick, in this case the methods deployed by the company rendered the policy unconscionable under Massachusettes state law.

“There was nothing objectionable about the use of e-mail itself. But the content, the obscurity, and the timing of the email and the failure to require a response raise unconscionability concerns. The e-mail employees received the Tuesday before Thanksgiving did not state it represented a modification to their employment contract at all. To the contrary, the attached memorandum clearly noted that the Program ‘d[id] not limit or change any substantive legal rights of [DRC’s] employees.’ It also described the Program as an “enhanced program” with the intent ‘to create improved, reasoned, predictable, and reliable processes . . . ,’ without mention of any potential disadvantages. The memorandum also failed to give notice.”

The court did not have to reach, therefore, the substantive question of whether a class-action waiver, even properly transmitted, may be unconscionable. (I also see that the First Circuit got stuck on the same editing problem I have: Is it “email” or e-mail”? The Court settles on both.)

Monday, November 19, 2007

For the purpose of evaluating the latest Rule 56 proposal (to create a uniform practice of filing statements of uncontested facts), the Federal Judicial Center was commissioned to study summary judgment practices by circuit and selected district courts. The report includes a series of tables setting out the percentages of cases disposed of by summary judgment.

Importantly, these percentages are based not on all cases filed, but only those that were subject to some kind of dispositive motion. After removing certain classes of cases, (you can find the study methodology at pp. 2-3), the analysts located 118,796 cases terminated in FY 2006. “Of these cases,” the FJC reports “20,697 constrained at least one motion for summary judgment. In total, we analyzed 39,120 motions for summary judgment.”

This comports with our common understanding that the largest number of cases settle, often long before summary judgment. Many cases on the dockets (you can check this out on PACER) clear out in a matter of months with scarcely any activity at all. Many, no doubt, are dismissed voluntarily because of early settlement (although I also suppose some number are also dismissed because a pro se plaintiff or a lawyer gets cold feet).

Now let’s look at how employment discrimination summary judgments are disposed of by the courts. Table 6 reports that 35% of employment discrimination cases culminate in a summary judgment motion. Table 12 reports the bottom-line figure that 9 to 14% of the employment discrimination cases (depending on the district studied) were actually terminated on summary judgment. (One way to square the numbers is that in many instances, the defendant succeeds on dismissing some counts but not others; multiple counts often seek the same relief.)

So it appears that far more federal employment discrimination cases are ending on favorable terms (either settlement or avoiding

summary judgment) than the anecdotal evidence first suggests.

Link to Initial Report on Summary Judgment Practice Across Districts with Variations in Local Rules (FJC, 11/02/2007)

Friday, November 16, 2007

The Seventh Circuit — in an opinion signed by Judge Posner — traces the fine line between adverse action under Title VII based on an employee’s religious belief versus behavior motivated by religion. Grossman v. South Shore school District, No. 06-4294 (7th Cir. Nov. 15, 2007). Kathryn Grossman lost out on tenure in a rural Wisconsin school district, after a year in which she disturbed her employers by tossing out a stack of literature about the use of condoms (replacing them with pro-abstinence messages) and by praying with a couple of students.

The superintendent’s review reflected the district’s unease about Grossman’s overt religiosity: “we read that the superintendent’s concerns about her were ‘too much religion,’ ‘6 pregnant teen parents,’ and ‘2 Reports of prayer.’ The plaintiff’s notes of a subsequent, similar meeting list her supervisors’ concerns under the heading of ‘religion’ as separation of church and state and the first incident of praying with a student, and under the heading of ‘philosophical differences’ birth control and abstinence. Notes of another participant at that meeting record concern that ‘faith controlled her philosophy, that she did not make a ‘good fit’ with the school, and that she ‘believed in’ abstinence. Apart from matters relating to religion, her performance as a guidance counselor was exemplary.”

The Seventh Circuit, affirming summary judgment, finds this commentary insufficient to mount a claim of religious discrimination. The administration dropped Grossman not because it took offense at her religious beliefs, Judge Posner writes, but because of her insensitivity to the effect that her conduct might have on others: “while it seems unlikely that this rural school district is in serious danger of being sued for violating the establishment clause of the First Amendment just because the school guidance counselor discarded condom literature and volunteered to pray with a total of (as far as the record discloses) only two students in three years, religion is such a sensitive subject that it is understandable why the school authorities would be worried by such incidents.”

The panel concludes:

“For at bottom the plaintiff has nothing to go on besides the words ‘philosophy’ and ‘philosophical’ in the notes of her conferences with her supervisors, as if the school administrators had engaged her in a theological debate. They had not. The reference to her preferring abstinence as a strategy for preventing teenage pregnancy to contraception (and likewise the references to her ‘belief’ in abstinence and her not making a ‘good fit’ with the school) related to her approach to the problem of teenage pregnancy rather than to her theological views. Those views were the cause of her approach, but so far as the record shows it was the approach that concerned the school administrators.”

Judge Posner takes to rounding out his opinions with tidbits that he seemingly picked up on the Internet, such as that “838 churches (116 of them Lutheran . . . )” are located “within about 40 miles of tiny Port Wing” (I don’t suppose he drove up north, spiraled around a 40-mile radius and counted them all), plus addresses for two web pages containing additional authority. Judge Posner has written admiringly of the judicial craft of Justice O.W. Holmes, Jr. and Judge Learned Hand, neither of whom operated a blog. Take pity on future scholars, decades hence, picking through Judge Posner’s opinions and finding acres of broken web links.

Thursday, November 15, 2007

At an ABA Labor and Employment Section conference last week, I was very flattered to meet a reader of this blog, who is a solicitor for a federal agency. He said that — even though he represents management — he appreciates my coverage of federal employee cases. To that kind reader, I dedicate today’s entry about a plaintiff-friendly decision out of the Fifth Circuit under the Rehabilitation Act: Pinkerton v. Spellings, No. 06-10657 (5th Cir. Nov. 14, 2007).

The circuits for years have been split over two fairly basic issues under the Act: (1) whether a federal employee’s exclusive remedy is under § 501, versus whether § 504 provides an additional basis for relief; and (2) whether the employee must show that the disability was the “sole” cause of an adverse action, or else may prove liability under a lighter “motivating factor” standard. The Fifth Circuit had already decided 25 years ago, as to (1), that the employee may proceed under both sections. It had not yet decided, though, about (2).

At trial, the judge instructed the jury on the “sole” cause standard, and the plaintiff lost on this issue. (“Two questions were submitted to the jury. The first asked, ‘Do you find from a preponderance of the evidence that Pinkerton was a ‘qualified individual’ as defined in the instructions above?’ The jury answered yes. The second question, which the jury answered in the negative, was, ‘Do you find from a preponderance of the evidence that the DOE terminated Pinkerton solely because of his disability?'”)

The standard-of-proof issue was thus presented inescapably, and the panel held that this instruction was in error. Although § 504(a) provides for liability exclusively in the explicit “solely by reason of” rubric of that section, § 501 was (on its face, anyway) silent about the standard. But the panel found that Congress meant § 501 liability to track the ADA:

“A causation standard for § 501 that aligns with the ADA standard is consistent with the history of the statute. Section 501 of the Rehabilitation Act of 1973 applies to federal government departments and agencies. By contrast, the ADA, enacted in 1990, explicitly excludes the federal government from coverage. Subsequently, the 1992 amendments to the Rehabilitation Act, which included the addition of § 501(g), were intended to make the Rehabilitation Act more consistent with the AD and to grant protections in line with the protections provided to ADA-covered employees. It is consistent with this statutory history that the federal government intends courts to apply the identical causation standard to claims brought by its own employees and plaintiffs suing under the ADA.” [Foot notes omitted.]

Thus “[under a plain reading of the statute, and in accord with the position of other circuits, we conclude that the “sole causation” standard is not the appropriate standard for ADA claims. We hold that under a straightforward reading of the statute, the “motivating factor” test should be applied to ADA claims.” and because the jury charge only contained the “sole” cause language, the employee’s substantive rights were misstated and a new trial had to be granted.

Wednesday, November 14, 2007

Yesterday, two U.S. Courts of Appeals handed plaintiffs losses, but at least in each with the moral victory of a dissent.

The Sixth Circuit in Seawright v. American Gen Fin Servs., No. 07-5091 (6th Cir. Nov. 13, 2007) compels arbitration under a policy received by the workforce through the mail in a brochure, accepted merely by continued employment. But Judge Boyce Martin dissents:

“The Court’s ruling today goes too far in subordinating the constitutional rights of employees to the convenience of employers. The ‘agreement’ between Seawright and AGF – which was not signed, constrained a unilateral workings-acceptance provision, and constituted a total waiver of the right to access a court – goes past the acceptable limit of what employers can force upon their employees without the employees’ consent.”

Meanwhile, in the Eighth Circuit, the court affirms a trial verdict for the employer in Harris v. Chand, No. 06-2315 (8th Cir. Nov. 13, 2007), affirming, among other things, the district court’s strict enforcement of the trial schedule, preventing the employee from presenting several witnesses. But Judge Smith, in dissent, writes:

“Additionally, I believe the district court’s time limitations prejudiced a substantial right. Fed. R. Evid. 103. Specifically, . . . the record does not show why the testimony of Harris’s three other proposed witnesses would have lacked probative value. Harris claims that these three ADT employees would have discredited ADT’s reason for her termination- the unauthorized possession and use of confidential QA codes. In fact, one of these witnesses’ declaration states that, ‘There was also never any policy in effect stating that the QA codes were confidential nor was there a policy refraining the managers from possessing the QA codes.’ The jury may not have believed Harris’s witnesses but she should have been given the opportunity to present them.”

Tuesday, November 13, 2007

In the past four weeks, there have been two published decisions construing Title VII’s religious accommodation provision (section 703(j)) under similar fact patterns: employees seeking workshift exemptions for religious observance. Such cases ought to be at the core of section 703(j) protection under Title VII. Justice Thurgood Marshall, in Trans World Airlines v. Hardison, 432 U.S. 63, 89 (1977) (dissent), observed that Senator Jennings Randolph (D-WV) urged this provision on his colleagues “to protect Saturday Sabbatarians like himself from employers who refuse ‘to hire or continue in employment employees whose religious practices rigidly require them to abstain from work in the nature of hire on particular days.'”

No surprise here, though, that the plaintiffs both lost below and on appeal. Such decisions are symptomatic of the enfeebled condition of this section in the federal courts today. But also, it goes to show just how frustrated and overworked mid-level earners will turn on a fellow co-worker who they think is getting a pass.

First, there is Tepper v. Potter, No. 06-4182 (6th Cir. Oct. 15, 2007) (recently posted in the scrappy-fun Adjunct Law Prof Blog), where Tepper, a letter carrier and a Messianic Jew, enjoyed an accommodation not to work Saturdays from 1992 to 2003. Yet his co-workers became restive as staffing cuts required more and more “volunteers” to work Saturdays:

“No formal grievances or complaints were filed regarding the accommodation to Tepper, but Union Steward Paul Hurd and the Chagrin Falls Postmaster at the time, Thomas Pecka, were both aware that some employees were not happy with the arrangement. Employees ‘grumble[d]’ about missing family and personal obligations on Saturdays in order to allow Tepper the time off. Hurd asserts that he heard around a dozen complaints over the years from about five employees. Pecka says that the comments were sporadic, and from around six to eight employees. Tepper states that on multiple occasions he heard comments from employees who suggested that he should have to work on Saturdays, or who commented on the information Tepper missed during a Saturday meeting. Tepper also reports that a coworker repeatedly asked him whether he would “blow the Shofar this Saturday,” the shofar being a Jewish musical instrument similar to a horn.”

A 2002 vote of the local membership (at a meeting where Tepper was not invited) unanimously urged the postmaster to cancel Tepper’s arrangement. Finally, responding to the co-worker complaints and citing economics, the post office withdrew the accommodation.

The Sixth Circuit, affirming summary judgment for the postmaster, held that an employee suing for denial of a reasonable accommodation must prove that he suffered a materially adverse action, in particular that he was discharged or disciplined. This Tepper failed to do:

“Tepper asserts that he has been forced to take days off from work without pay in order to avoid Saturday work, and that these days off reduce his annual pay and eventual pension. However, more than loss of pay is required to demonstrate discipline or discharge. The Supreme Court has stated that “the direct effect of unpaid leave is merely a loss of income for the period the employee is not at work; such an exclusion has no direct effect upon either employment opportunities or job status.” Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70-71 (1986) (quoting Nashville Gas Co. v. Satty, 434 U.S. 136, 145 (1977)). Tepper is simply not being paid for the time he does not work; he has not been disciplined or discharged.” [Emphasis added.]

Thus, denial of the accommodation itself, the court finds, is not a violation even if it is accompanied by an injury (i.e., being forced to take unpaid leave). Nor. the court held, did the denial of accommodation create such a hostile condition that the employee would have been constructively discharged. This analysis sounds like a confusion between reasonable accommodation under section 703(j) and straight religious discrimination under 703(a) (which was, incidently, a separate claim in the case), and is probably just wrong.

More recently, we have Morrissette-Brown v. Mobile Infirmary, No. 06-14082 (11th Cir. Nov. 7, 2007), concerning a Seventh-Day Adventist. Morrissette-Brown, a unit secretary, claimed she was terminated from her job because she refused to work Friday or Saturday shifts from 3 p.m. to 11 p.m., while the employer contended that she was never fired and had been offered a flex-time position instead. The district court found for the employer and the Eleventh Circuit affirmed that its finding (of no adverse action) was not clearly erroneous. Moreover, the court affirmed the findings that the employer had reasonably accommodated her religious observances by allowing her to swap shifts, and did not in fact discipline her on the occasional dates that she did not attend a Friday shift. On the former finding, the court brushes into a Foot note that fact that the employee would have had to surrender benefits and health insurance to switch jobs. On the latter, the catchpenny method of an employee scrambling to replace shifts (or risking discipline if she cannot) is clearly inferior to the slightly-more burdensome method of taking the employee off the rotation and setting her shifts so that they do not conflict with her Sabbath obligations.

Monday, November 12, 2007

You are the manager in this hypothetical. You find that you have a wolf roaming your workplace. Should you (1) subdue and remove the beast; or (2) try to civilize it, and let it come back to work wearing a muzzle as a precaution against biting? The management in Engle v. Rapid City Sch. Dist., No. 06-3936 (8th Cir. Nov. 9, 2007), regrettably went with number (2) — figuratively speaking, anyway — in a nasty sex harassment case, and now faces a jury trial, since the Eight Circuit reversed summary judgment.

On the summary judgment record, the plaintiff-employee Engle (along with other women) reported a harasser named Herrera, possessed of an especially mean streak. He was found (upon investigation) to have committed the following acts:

“(1) two requests by Mr. Herrera that a female employee look at pornographic images of male and female sex on Mr. Herrera’s computer; (2) numerous instances where Mr. Herrera would rub or massage the neck of female co-workers without their prior permission; (3) instances where Mr. Herrera would stroke the hair of co-workers without their permission; (4) instances where Mr. Herrera would make remarks about the physical anatomy of female co-workers (i.e., ‘nice butt’) or ask to feel a co-worker’s butt; (5) instances where Mr. Herrera would attempt to look down the shirts of female co-workers[;] (6) instances where Mr. Herrera would persistently inquire about whether or not a female coworker was wearing thong underwear and if so what color was it and did it match her bra; (7) instances where Mr. Herrera would look females up and down which made females feel uncomfortable; (8) an instance when Mr. Herrera made a remark to a female co-worker wherein he stated that she smelled good and that he needed to find some lotion and go into the bathroom; and instances when he made comments about oral sex and sexual positions which could be used between the female and her husband, and (9) an instance where Mr. Herre attempted to reach in a woman’s shirt to grab her identification badge.”

The company investigators sided with the women but, bizarrely, did not fire the harasser (and think back on all the many, many employment discrimination cases you’ve read where employees were terminated for far, far less reason). After a suspension, it returned him to work on April 15, 2003 in the same worksite as Ms. Engle. It ordered him into counseling and limited his movement on the floor, not allowing him to be left alone with female employees. He was also admonished that another offense would get him fired

But Mr. Herrera could not leave it alone, and continued to leer at and try to talk to Ms. Engle. And oddly, the employer’s response was even more permissive than the first time: “Despite RCSD’s earlier threat to terminate Herrera if he engaged in any inappropriate conduct, RCSD did not fire him. Instead, RCSD denied Herrera pay for the time he was suspended, and some of the previous restrictions on his activities were reimposed. The August 2003 letter from Hengen also included an admonition that ‘[without prior approval, you are not to initiate discussion with, apologize to, or otherwise contact Dede Engel or Jamie Volk.’ (Id.). Hengen removed the threat that Herrera definitely would be fired if he engaged in additional misconduct.”

While the panel agrees that the employer cannot be held liable for harassment that occurred before his return to work that had not been previously disclosed to the employer, there was a genuine issue of fact whether fault for subsequent harassment after April 15, 2003 could be attributed to the employer. “Significantly in our view, RCSD’s decision to respond to Herrera’s continued harassment by decreasing, rather than increasing, its threatened sanctions may reasonably be viewed as contributing toa negligent response. . . . RCSD had threatened to terminate Herrera if any additional substantiated complaints of harassment were made against him, but taking Engel’s complaints as true for purposes of summary judgment, RCSD did not follow through on this promise.” And so the decision suggests that some harassers, such as Mr. Herrera, are like that wolf that no amount of punishment or reasoning will change.

Thursday, November 8, 2007

EEOC v. V&J Foods, Inc., No. 07-1009 (7th Cir. Nov. 7, 2007) represents a fact pattern sadly familiar from such other recent Seventh Circuit cases as Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006), and Loughman v. Malnati Organization, Inc., 395 F.3d 404 (7th Cir. 2005) — a teen girl in the food service business, sexually harassed and abandoned by responsible adults.

On the summary judgment record, the employee presented evidence that her shift manager — nearly two decades her senior — was sexually involved with other women at the restaurant and was putting the moves on her as well.

“[H]e began making suggestive comments to Merriweather. He would also rub against her and try to kiss her. She rebuffed his advances but he persisted. She felt as though she were working with ‘a stalker all around.’ He told her he wanted ‘a young girl’ because of ‘their body. You know, it’s not all used up.’ Later he said ‘I want to take you to the hotel. You can have anything you want. I’ll pay you what, 5-, $600.’ When she said she wasn’t interested in him, that she had a boyfriend, he told her that ‘he was tired of doing things for me and he [wasn’t] going to do [anything] else for me because I’m sitting here giving my body away for free when he’s trying to pay me.'”

The Seventh Circuit fillets the defense in this case, starting with the management lawyer’s assertion that (on these facts) there was no harassment at all. “We were astonished when V & J’s lawyer told us at argument that Wilkins’s conduct toward Merriweather was not sexual harassment, though in his brief he had acknowledged that it was. We hope V & J, the owner of numerous fast-food restaurants, knows better.”

The district court had granted summary judgment on ground that the employer was not liable for the shift manager’s cruising, under Faragher and Ellerth, because the teen girl did not reasonably avail herself of the company’s anti-harassment policy. The Seventh Circuit restated the ground rules for this defense:

“The mechanism must be reasonable and what is reasonable depends on ‘the employment circumstances,’ [Ellerth] at 765; see Wilson v. Tulsa Junior College, 164 F.3d 534, 541-42 (10th Cir. 1998), and therefore, among other things, on the capabilities of the class of employees in question. If they cannot speak English, explaining the complaint procedure to them only in English would not be reasonable.”

The panel then humanely extended the principle of “circumstances” to protect young people just entering the job market:

“V & J’s lawyer surprised us a second time by telling us that an employee’s age and education are irrelevant to the adequacy of the grievance machinery established by the employer-if it is a machinery within the competence of a 40-year-old college graduate to operate, it will do for a 16-year-old girl in her first paying job. An employer is not required to tailor its complaint procedures to the competence of each individual employee. But it is part of V & J’s business plan to employ teenagers, part-time workers often working for the first time. Knowing that it has many teenage employees, the company was obligated to suits procedures to the understanding of the average teenager.”

Evaluating the record — particularly, as the court states, in light of the burden on the employer to prove the defense – the panel finds many problems with V&J’s policy: the written policy does not clearly identify to whom employees must report complaints, and furnishes wrong numbers to boot. The persons in charge were also deficient:

“If an employee complains to a shift supervisor or assistant manager, that person is supposed to forward the complaint to the general manager (and thus in this case to Wilkins) even if the complaint is about the general manager. After receiving the complaint the general manager is supposed to ‘turn himself in,’ which of course Wilkins did not do. Nor did the shift supervisors or assistant manager report Merriweather’s complaints to Wilkins or to anyone else.”

But the panel then takes a fascinating swerve, setting forth what the judges might approve as a model anti-harassment policy:

“All that it would have to do, we should think, would be to post in the employees’ room (thus not visible to the restaurant’s customers) a brief notice that an employee who has a complaint about sexual harassment or other misconduct can call a toll-free number specified in the notice. The number would ring in the office of a human relations employee and the receptionist would identify the office as that of the company’s human relations department.”

The panel also reversed and remanded a retaliatory termination claim, resulting from the girl’s mother visiting the store to scold “a shift supervisor named McBride about Wilkins’s sexual harassment of her daughter. Wilkins was not present. McBride professed ignorance of the matter and reported the mother’s intervention to Wilkins as soon as he returned-whereupon he fired Merriweather, this time for good, on the ground that she had involved her mother in the matter rather than handling it ‘like a lady.'”

Tuesday, November 6, 2007

The transcript in the oral argument on Federal Express v. Holowecki (06-1322) before the U.S. Supreme Court suggests that the justices have already written off the respective parties’ pet arguments.

The issue is whether an EEOC complaint, filed by an employee on an Intake Questionnaire (not a Form 5) and not followed up by EEOC notice to the employer, constitutes a “charge” for purposes of the ADEA charge-filing requirement. (I wrote an amicus brief for a coalition of public interest organizations in support of the respondent-employee, which may be found here.) [UPDATE: I fixed the broken link here. Hope no one was inconvenienced.]

The employer had argued that an EEOC charge is perfected only when the employer receives notice of it, but Justice Scalia rejected that argument in the early going, calling it “very strange” and arguing with defense counsel: “I mean, it’s just like saying, you know, you have a civil rule, a rule of civil procedure, that says, you know, after a complaint has been filed there shall be an answer within 60 days. And if no answer is filed, no complaint has been filed?” The Court appeared in no mood to punish an employee whose charge the EEOC failed to publish to the other side. As Chief Justice Roberts queried, “Why should he suffer the categorical sanction of dismissal simply because it’s a little unfairness to you?”

On the other hand, the employee’s leading argument — that the EEOC regulations defining an EEOC charge were broad enough to cover a paper filed on the wrong form that was never docketed by the agency — met with opposition from the same quarters. Justice Scalia parried with Holowecki’s counsel, Dave Rose, over the scope of the regulation:

“JUSTICE SCALIA: In its very definition of a “charge,” it says a charge shall be in writing and shall name the prospective respondent and shall generally -shall generally allege the discriminatory acts. That’s what it must contain.

“MR. ROSE: Yes.

“JUSTICE SCALIA: It doesn’t say that anything that contains that is a charge.”

Later on, Justice Breyer stated that “I read those regs, and those regs had a definition that can’t possibly be right as applied to ‘intake questionnaire,’ because they make it a charge when the person says I don’t want notice. So we know that isn’t the thing.”

The attorney who probably had the worst time of it, though, was the assistant solicitor general, who bore the brunt of the criticism that the EEOC created the problem by deploying confusing forms and failing to maintain safeguards against erroneously filed charges. So as government lawyer stood up to speak, we got this exchange:

“MR. HEYTENS: Mr. Chief Justice, and may it please the Court:

“JUSTICE SCALIA: Mr. Heytens, let me tell you going in that my — my main concern in this case, however the decision comes out, is to do something that will require the EEOC to get its act in order, because this is nonsense: These regulations that are contradicted by forms; this failure to give notice, but it’s okay because it’s a charge anyway.

“This whole situation can be traceable back to the agency, and I — whoever ends up bearing the burden of it, it’s the agency’s fault, and this scheme has to be revised.”

I would guess that what alarmed the justices about giving the EEOCs charge-filing regulations the fullest reading urged upon them by respondent and the government is that the agency (according to the government’s brief) received some 176,000 initial contacts in 2006, many of which likely resulted in Intake Questionnaires but did not ripen into charges. Taken literally, the regulations would treat such papers as “charges” if they were signed by the employee. (Title VII — unlike ADEA — requires that the charge be verified, but under Edelman v. Lynchburg College, 535 U.S. 106 (2002), such a paper could be verified at a later date and the verification would relate back to the original filing.)

I’d guess that the Court will (1) avoid tangling with whether the EEOC regulations warrant Chevron deference; (2) hold that a paper which contains information minimally necessary to constitute a charge and that is filed by an employee unconditionally (i.e., unencumbered with a demand that the EEOC not inform the employer of the complaint) meets the charge-filing requirement; and (3) determine that failure of the EEOC to give an employer notice alone does not abridge the employees’ rights.

Monday, November 5, 2007

Greer v. Paulson, No. 06-5155a (D.C. Cir. Nov. 2, 2007), concerns a recurrent question in calculating the limitations period for a harassment claim under Title VII: does the employee’s extended absence from the worksite necessarily break the chain of activity that might constitute a hostile work environment? The D.C. Circuit holds “no,” but affirms summary judgment for the agency on the facts of plaintiff’s case.

The employee, Dorothy Greer, alleged a four-year long campaign of race harassment:

“Greer alleges a number of incidents, including finding on her desk an unsigned memorandum that used the ‘N’ word and invoked religious imagery and affirmative action in stating that African Americans ‘are causing to [sic] many problems,’ Greer Dep. 73-74 (Nov. 17, 2004). Other incidents included an IRS official suggesting that she and other African-American employees who were on their way to lunch were going out to steal VCRs; an IRS official stating when Greer was speaking with a colleague that he knew Greer was in the room because he had seen her broom and cleaning cart outside the door; an IRS employee asking if she had sold drugs over the weekend to get the bank deposit money that was sitting on her desk; an IRS employee saying that African-American employees could buy a lot of watermelons with their pay raises; an IRS employee saying that a vast majority of African Americans were on welfare; and her second-line supervisor and other IRS employees referring to her as ‘Mrs. Martin Luther King’ and ‘Queen B’ after she complained about racially offensive remarks in the workplace.”

At the end of the four years, Greer had a break in service for some sixteen months between January 1994 and April 1995 (“[t]hree and one half months of sick leave were followed directly by a temporary work assignment to the White House”).

Upon her scheduled recall to the IRS on May 1, 1995 to a new office, she requested a 160-hour (four week) annual leave effective at once. In support of her request, she supplied documentation “from her doctor indicated that she could return to work on September 26, 1995, and recommended that she seek a transfer to a less stressful environment.” She had also heard that her new supervisor, named Carter, “had privately made disparaging remarks about her; these allegedly included questioning the leave balance she accumulated during her temporary White House work assignment and suggesting that she acquired her White House assignment as the result of a ‘special,’ illicit relationship with a Cabinet member.” She also learned that she would be assigned to share an office “with two white men whose attitudes toward African Americans she believed ‘were very negative.'”

The IRS denied Greer’s full annual leave request and granted her just one week instead, warning Greer that she would placed on unpaid AWOL status if she did not report on time. There then followed an extended period of negotiations (including Greer’s initiation of EEO proceedings May 10, 1995), leading to an adjustment of her leave time, and there was also an unscheduled stretch of service lost due to Greer’s service on a federal grand jury. But in time, as Greer never returned to duty by 1996, she was terminated for her excessive absence.

Greer contended that the resistance she suffered during the post-1994 period continued the original hostile work environment, and that her May 10, 1995 EEO counseling session “appropriately exhausted her administrative remedies because she complained about management’s insistence that she return to the allegedly hostile environment on May 1, 1995, the denial of annual leave in May 1995, and Carter’s alleged comment to her union representative that she had obtained the White House assignment as the result of a ‘special’ relationship.”

The panel rejected the government’s argument that the sixteen-month absence abated the harassment per se, following the lead of several other circuits: “There are various ways in which a hostile environment may extend beyond the physical workplace, and thus contribute to and form part of a hostile environment claim. For example, harassment and hostile incidents may occur by telephone or in person during an employee’s communication with her employer while she is not working or away from the office. . . . A per se rule barring consideration of incidents during a workplace absence would provide an employer with a perverse incentive to place on leave an employee for whom it had created a hostile environment in order to insulate itself from liability.”

Yet the court affirmed summary judgment, holding that the admissible evidence of post-1994 history proved that intervening events broke the chain of causation. The comment attributed to Carter was found to be inadmissible hearsay (it was filtered through a union representative who denied actually hearing the remark directly), while the balance of activity related to a new worksite: “there are . . . two sets of intervening events – one by Greer’s employer, in assigning her to a new supervisor and new branch as part of a reorganization of her entire division, and one by Greer, in refusing to return to work.”

Friday, November 2, 2007

The Ninth Circuit affirms a rare verdict for a plaintiff against a union for breach of the duty of fair representation and Title VII in Beck v. United Food and Commercial Workers, No. 05-16414 (9th Cir. Nov. 1, 2007).

It began, as these cases so often do, with an argument that took place ages ago. Two co-workers (Cheryl Ann Beck and Bob Evans) had words in a Fry’s Food Store parking lot. Word got back to management, and a company representative informed Barbara Cleckner (the local’s field representative at the store) “that it intended to terminate Beck on the ground that Beck had a ‘history of a foul mouth.’ In eight and a half years of working for Fry’s and its predecessor Smith’s, Beck had not previously been disciplined for using profanity.” The company pulled short, though, and issued Beck a final written warning instead. Beck asked Cleckner to grieve the warning, but she failed to do so.

Sadly, three months later, Beck got snagged in another fight with a different co-worker. This time, the hammer came down. Beck was out and the union — on advice of counsel — declined to arbitrate her grievance. She sued the employer under Title VII (later settled) and the union, too, arguing “the grievances of two similarly situated men were handled by the same Local 99 representatives with greater zeal than her grievances and the grievance of another similarly situated female.”

For its failure to grieve the first claim and arbitrate the second, the district court awards $16,304 in lost wages, $125,000 in compensatory damages for emotional distress, $50,000 in punitive damages, and attorney’s fees and costs.

The Ninth Circuit affirms the district court’s finding that, as to the failure to grieve the warning, the failure to file the grievance was not simply a judgment call by the union, but a purely arbitrary act: “Cleckner testified at trial that she informed Beck that Local 99 would file a grievance challenging the April warning if Beck so desired. There is no dispute that Cleckner had the authority to make this representation on the union’s behalf. The district court credited Beck’s testimony that she had requested Cleckner to file the grievance.”

As to the Title VII claim, the district court drew the permissive inference based on comparative evidence that the union more aggressively represented men than women: “The district court found that Local 99 provided more aggressive representation of two men than it did of Beck and [co-worker Ms.] Reinhold. It also found that Beck and [male co-worker] Molitor were similarly situated ‘in all material respects,’ and that Beck was similarly situated to other male employees who received more favorable treatment from the same union representatives. We cannot say that, as a matter of law, such evidence was an insufficient basis for the district court’s conclusion that the union had intentionally discriminated against Beck, even though the comparative evidence was based on only three individuals in addition to Beck.”



Daily Developments in EEO Law
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Recent Updates

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

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

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

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

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


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