I’m heartened to report three decisions yesterday all reversing summary judgment against employees: the Third Circuit applying the Holowecki decision in an ADEA case; the Tenth Circuit sending an ADA “regarded-as” case back for trial; and a straight-up race discrimination and retaliation case, decided by the Eleventh Circuit.
Holender v. Mutual Industries North Inc,, No. 06-4632 (3d Cir. June 3, 2008): This seems like a bit of gimme for the employee, who benefitted on appeal by the intervening decision in Federal Express Corp. v. Holowecki, 552 U.S. __ , 128 S. Ct. 1147 (2008). The employee submitted a paper to the EEOC stating the facts of his ADEA hiring claim — that he was asked age-related questions during his interview and then not hired — waited more than 60 days, and then filed his civil action. Although the employee used the official charge-filing form (Form 5), it was not checked off in the box stating that “I want this charge filed with both the EEOC and the State or local agency, if any.” The agency sent a letter to the employee’s counsel asking for more information “before the EEOC can formally docket this matter as a charge,” but this was never done.
On appeal, the employer argues the EEOC itself — as demonstrated by the letter — did not regard the paper as a “charge,” and thus the 60-day period for filing an ADEA civil action was never triggered. But the Third Circuit finds the case resolved within the four corners of Holowecki. And, helpfully, the EEOC filed an amicus confessing error: “Ultimately, this case shares a core similarity with Holowecki: the problems here arose from the EEOC’s action (or, perhaps more precisely, delay in acting), not from any fault of the alleged victim of age discrimination. We recognize that Mutual has done nothing to frustrate Holender’s ability to seek relief from the EEOC. Mutual justifiably may think that the EEOC has deprived it of a meaningful opportunity to avoid litigation. However, the lesson of Holowecki is that both parties must bear the consequences of the EEOC’s acts. This result is ‘unfortunate’ but ‘unavoidable.'” (In a footnote, here omitted, the panel commends to the district court the possibility of staying the case to allow conciliation.)
Justice v. Crown Cork and Seal Co., Inc., No. 07-8036 (10th Cir. June 3, 2008): The employee, an electrician at an aluminum-can fabrication plant, works for ten years before he suffers a stroke. Although he recovers most of his function with intensive therapy, he cannot reliably hold his balance when working from high places. He works successfully with accommodations for nearly two years (wearing a harness, avoiding unprotected heights, working day shifts). Then, after an eight-month absence due to a strike, the employer refuses to reinstate him to his old position until the union files a grievance. When allowed to return to work, management works him beyond his restrictions, and he’s observed swaying dangerously by two area managers. There then follows four months of examinations and negotiations, but the best the employer claims it can do is to reassign him to the lowest-ranking and poorest-paid position in the plant: a janitor.
The employer had argued — successfully in the district court — that the demotion did violate the ADA, because the employer as a matter of law did not regard the plaintiff as substantially limited in the major life activity of working. (N.B.: had the employee selected a different MLA — balance — this whole inquiry might have been avoided.) But the Tenth Circuit disagreed, finding that the record supported another inference: “Crown at least initially believed that Justice’s balance and vertigo problems could disqualify him from employment as an electrician in general — or, for that matter, from any employment where he might have to work with high voltages or electrical current. The statements undercut Crown’s argument that it only believed that ‘Justice was unable to perform the job of electrician in [Crown’s] plant’ but could ‘work as an electrician in other environments.'”
The court further concluded that the district court, at least implicitly, weighed a disputed inference in favor of the employer: “to conclude that Crown’s demotion of Justice from electrician to janitor was based on his actual medical restrictions rather than this erroneous perception about his abilities would require us to resolve a disputed issue of material fact in Crown’s favor. Crown argues that Justice’s medical restrictions precluded him from working as an electrician because, under its version of the facts, the Worland plant was full of obstacles such as unprotected heights and hazardous machinery. While this may be true, there is contrary evidence in the record from which a finder of fact could conclude that these hazards were imagined or exaggerated, and that Crown’s purported reliance on Justice’s medical restrictions was a pretext masking Crown’s irrational fears about Justice’s condition.”
On remand, the district court will also have to consider the applicability of the “direct threat” defense: “based on the same evidence already noted in the preceding section, we conclude that a triable issue of material fact exists as to whether Justice actually posed a direct threat to plant safety. There is, as noted, a question whether [physical therapist] Ms. Wakai’s opinion can be considered ‘objective.’ In addition, there is much evidence indicating that Justice’s restrictions, as recognized by Drs. Williams and Spratt, may not have limited his ability to perform safely in his environment and that Crown’s application of the medical judgments to the workplace was unreasonable.”
Crawford v. Carroll, No. 07-11603 (11th Cir. June 3, 2008): The Eleventh Circuit holds that the district court bobbled this straight-forward case on two issues.
First, the court below held as a matter of law that a poor performance evaluation — leading to the denial of a merit pay raise — was neither an “adverse employment action” (for purposes of her Title VII race discrimination case) nor a “materially adverse” action (for purposes of retaliation). The employer argued that the merit increase was retroactively reinstated, but the panel recognized that even the temporary loss of income was adverse:
“In Crawford’s case, the decision that she not be awarded a merit pay increase was a final decision that resulted in her not receiving a merit pay increase. As acknowledged by the district court, ‘[there] is no dispute that as a result of the rating Carroll gave to plaintiff on her 2001-2002 evaluation, Plaintiff did not receive an increase in her salary effective 2002.’ Crawford, . . . therefore, realized an actual loss. Although the four percent merit pay increase eventually was awarded retroactively in October 2003, as noted, Crawford nevertheless was deprived of the use or value of her merit pay from the time it otherwise would have been awarded in October 2002. In other words, Crawford suffered an adverse employment action directly related to her compensation: the alleged retaliatory performance appraisal deprived her of the tangible employment opportunity of receiving a merit pay increase and thus adversely affected her status as an employee.”
The panel noted that Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), rejected the prior, more rigid “ultimate employment action” formula that used to be applied by the Eleventh Circuit.
Second, the panel found (contrary to the district court) that the record presented triable issues of fact about whether the denial of three straight promotions to the plaintiff, in favor of non-minorities, was racially discriminatory or retaliatory: “[T]he evidence reflects that [Vice President] Johnston chose not to make a hiring decision at that time given [affirmative action director] Nelson’s assessment that Crawford was the best suited candidate, that Nelson had doubts about the actual need for the new position, and that Nelson had expressed concerns over ‘other incidents in the past’ involving Crawford. As to the second posting, defendants have pointed to no reason whatsoever for failing to offer Crawford the position. With respect to the third time the job was posted, and Crawford again was not promoted, a reasonable jury could question whether the explanation given for not hiring her, indeed for not including her in the interview process, was a pretext for discrimination and retaliation.”