Middlebrooks v. Leavitt, No. 05-1860 (4th Cir. May 6, 2008); Trujillo v. PacifiCorp, No. 06-8074 (10th Cir. May 7, 2008)

| May 7, 2008 | Daily Developments in EEO Law |

Pity the poor lawyer-blogger. I’ve been awash in actual law practice (for the past week, it’s been wrestling with a TRO) and things pile up. Here’s my attempt to make good: a nice arcane federal employee case from the Fourth Circuit and a plaintiff win in an ADA “association” discrimination case from the Tenth Circuit.

Middlebrooks v. Leavitt, No. 05-1860 (4th Cir. May 6, 2008):  Did you know (and I did not, for sure) that there is a branch of the U.S. uniformed armed services called the United States Public Health Service Commissioned Corps (“PHSCC”)?  Yes, it’s true, and — from the perspective of an employment lawyer — it useful to know also that in 2004, Congress amended the act creating the service to provide (more properly, preserve) sovereign immunity from Title VII.  This caused Ms. Middlebrooks a bit of a set-back in her then-percolating matter.

According to the opinion, “[t]he PHSCC employs approximately 6,000 officers in a variety of medical health professions; those officers administer programs designed to promote public health, prevent disease, and advance public health science. See U.S. Dep’t of Health & Human Servs., U.S. Pub. Health Serv. Commissioned Corps, About the Commissioned Corps,  (last visited Apr. 16, 2008).” 

Ms. Middlebrooks was turned down for two nursing jobs in the corps, and suspected both race and retaliation were motives.  But her lawsuit was tossed in the district court on jurisdictional grounds.  Title VII generally waives immunity for federal employees in the services, i.e., “personnel actions affecting employees or applicants for employment . . . in military departments . . . [and] in executive agencies . . . ,”  42 U.S.C.§ 2000e-16(a) (2000), but uniformed staff is a different matter.  Some (but not all) courts have refused to consider uniformed members “employees” for purposes of this exemption.  And, to put a finer point on that, Congress in 2004 adopted 42 U.S.C. § 213(f), stating that “[a]ctive service of commissioned officers of the [PHSCC] shall be deemed to be active military service in the Armed Forces of the United States for purposes of all laws related to discrimination the basis of race, color, sex, ethnicity, age, religion, and disability.” Id.

So Ms. Middlebrooks argued that as an applicant not in active service, she did not fall under the section 213(f) language. This did not impress the district court, but (surprise) the Fourth Circuit bit. “No plain language transforms mere applicants to the PHSCC into ‘commissioned officers’ of the PHSCC. And given that PHSCC applicants have not (yet) received commissions, they certainly have not engaged in ‘[a]ctive service’ in the PHSCC.”

Yet this still required the court to consider whether she benefitted from the general language from Title VII.  And Ms. Middlebrooks fared less well here.  It held that commissioned officers and applicants were not within the exemption.  “[A]lthough the PHSCC shares characteristics of both civilian and military personnel, the legislative history of § 2000e-16(a) suggests that, in passing the amendment to Title VII that added this provision, Congress intended § 2000e-16 to reach only federal employees in the ‘civil service’ and ‘competitive service’ who were, at that time, under the authority of the Civil Service Commission.”

But her case left one thread left untied, a factual question for decision on remand:  Was the job she applied for really in the uniformed services or a civilian job under the National Institutes of Health?  Hence it was remanded — “Should the court determine that it is properly viewed as one to the PHSCC, then Middlebrooks may not assert a claim under § 2000e-16(a). But if the court determines that the application is better viewed as one to NIH, then it should deny the Government’s motion to dismiss and permit Middlebrooks to proceed on her Title VII claim against NIH hiring officials under § 2000e-16(a).”  [The Court did drop her Fifth Amendment equal protection claim, though, finding that (1) Title VII provided the exclusive remedy for race discrimination in federal employment; and (2) that under the Feres immunity doctrine, the equal protection claim could not lie.]

Trujillo v. PacifiCorp, No. 06-8074 (10th Cir. May 7, 2008):  This is reminiscent of another recent case from the Seventh Circuit (DeWitt v. Proctor Hospital, 517 F.3d 944, 102 FEP 1199 (7th Cir. 2008)), in both its tragic and comic elements. Here’s a married couple with a very sick child (a brain tumor that later metastasized to his spine) and who lost their jobs when their son relapsed. As in DeWitt, the employer’s health plan here was self-insured, and it scrutinized the high-users’ claims by the micron. “One executive commented that 90% of all healthcare costs were incurred as result of only 10% of the employees. Charlie was one of only two people with a terminal illness during the relevant time period.”

According to the summary judgment record, “PacifiCorp designated claims of over $50,000 as high-dollar ones. Charlie’s medical expenses during his relapse exceeded that figure by at least $12,000. On June 10, 2003, just eleven days after Charlie’s relapse, the company began an investigation into suspected time theft by the Trujillos. The investigation resulted in the termination of the couple.” They were fired for some 34 unaccounted-for hours between them, in spite of evidence that other employees who were investigated for the same violations got off with warnings.  The opinion shares extensive details on the unorthodox (read “shady”) methods that the company used to single out the Trujillos.

The employees sued for discrimination under the ADA in account of their “association” with their disabled son (42 U.S.C. § 12112(b)(4)), as well as section 510 of ERISA. Although the district court believed this to be a “close” case that fell on the unwinnable side, the Tenth Circuit disagreed and reversed summary judgment.  The court found enough circumstantial evidence that the company was motivated by the high costs of the son’s medical treatment to present a genuine issue of material fact:  “Evidencing that management knew about the cost of Charlie’s healthcare, the Trujillos offer an email regarding Mrs. Trujillo’s personal leave related to Charlie’s illness in which the company stated it monitored both health and welfare benefits in conjunction with an employee’s personal leave. From the evidence the Trujillos presented – concerns about rising healthcare costs, numerous efforts to cut those costs, corporate monitoring of general healthcare costs and of Charlie’s claims specifically – a jury could reasonably infer that PacifiCorp terminated the Trujillos because they were expensive employees.”

File this one in the “Heartless Bastard” folder.


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