Betton v. St. Louis County, Mo., No. 07-1634 (8th Cir. Jan. 16, 2009); EEOC v. Agro Distribution, LLC, No. 07-60447 (5th Cir. Jan. 15, 2009)

| Jan 15, 2009 | Daily Developments in EEO Law |

The Eighth Circuit hides its light in a bushel, reversing summary judgment in a Title VII retaliation case by way of an unpublished decision. The EEOC takes it in the chin in the Fifth Circuit, with an award of defense fees and costs in an ADA case that went awry at the employee’s deposition.

Betton v. St. Louis County, Mo., No. 07-1634 (8th Cir. Jan. 16, 2009): The Eighth Circuit is so stingy with pro-employee decisions, so it’s a pity to see a rarity like this — reversing summary judgment in a Title VII and Missouri Human Rights Act retaliation case — consigned to non-precedential status.  Still, nice to see a panel recognize that pretext can be shown with a variety of evidence, including otherwise unexplained departures from well-worn practices:

“First, because one of the County’s stated reasons for reassigning appellants in June 2004 was that the workload regularly varied among departments, due in part to the bi-annual real estate assessments, we find it relevant that none of the five plaintiffs had ever before been reassigned. Plaintiffs had been working for the County at least two years and in some cases almost four; the fact that the annual workload variations never resulted in their reassignments in prior years undercuts the credibility of this proffered reason. Second, while the County’s evidence showed that a number of employees had been reassigned since 2003, we conclude that only the 2004 reassignments of the appraisal-support office service representatives, such as appellants, were relevant, given that the other transferred employees reflected in the County’s evidence held different, mostly higher-level, positions in other sections, and many were reassigned or transferred well before or after June 2004.

“Third, as to the six other appraisal-support office service representatives who were reassigned in 2004, according to the County’s evidence only one was reassigned for more than a few months and only two were physically relocated to other sections. In contrast, appellants’ transfers or reassignments lasted from sixteen months to until at least 2006, and all but one were required to move their work stations to another section. Further, the record does not reflect whether there were any changes in the duties on reassignment of the other appraisal-support office service representatives, much less that any such changes could reasonably be viewed as less desirable or prestigious (as were appellants’). Fourth, the County’s second stated reason for appellants’ reassignments was that in June 2004 the abstract section was seven months behind in inputting information into computers, while there was a light workload in the appraisal-support section, yet only two appellants were assigned to abstract in June 2004, and they were not assigned data-entry tasks, even though they had years of dataentry experience. The district court correctly noted that others besides appellants Howard and King were reassigned to the personal-property section in 2004, but the County did not offer a heavy workload in that section as a reason for appellants’ nearly simultaneous reassignments. Fifth, while appellants admittedly discussed reassignments in their meeting with a Department of Revenue director, and two admittedly thought it was a good idea, the County did not rebut their testimony that the director told them all Department of Revenue employees would be reassigned for cross-training and to address backlogs in certain sections, yet only a few employees (including appellants) were reassigned. In summary, the timing of the reassignments, the changes in appellants’ duties, and the other factors outlined above created a jury question as to whether the reassignments were retaliatory.” [Citations omitted.]

EEOC v. Agro Distribution, LLC, No. 07-60447 (5th Cir. Jan. 15, 2009):  It gives me no joy to report the pummelling that the EEOC suffered in pursuit of an ADA case, with the Fifth Circuit affirming a defense fee award of $225,000 for all work performed after the claimant’s deposition.

The claimant, named Velez, suffered from “anhidrotic ectodermal dysplasia,” which prevented him from sweating and required accommodation (rest breaks to cool down from hot, physician labor). He charged that his employer required him to perform work (unloading barrels) beyond his physical limits, and fired him when he refused the assignment.

Apparently, from the beginning the relationship between the EEOC and the respondent was tense:

“[A]n EEOC Investigator . . . performed an on-site investigation on May 22, 2003. The next day, Herbert Ehrhardt, Agro’s attorney, mailed a letter to the EEOC expressing concern about [the] investigation. Ehrhardt reported that [the investigator] made insulting remarks during interviews; indicated disgust for the statements of management witnesses; raised her voice; rephrased witnesses’ statements to favor the charge; and selectively recorded portions of the statements. The EEOC never responded to this letter and left [the same investigator] in charge of the investigation.”

Unable to settle, the case proceeded to a civil action, leading to a less-than-golden deposition of the employee:

“At his deposition, Velez testified that he was not substantially limited in a major life activity because he could regulate his body temperature with breaks, fans, and air conditioning. Velez further testified that he was not denied reasonable accommodation because he was capable of performing manual labor (at hotter temperatures than on the day in question) when given breaks to cool off and that Agro had never denied him a break.”

Upon granting summary judgment to the employer, the district court award defense fees under Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978) (allowing award to employer where case was “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so”).

The Fifth Circuit affirms summary judgment and the fee award.  It finds, on the merits, that despite the employee’s difficulty in regulating his body temperature, the availability of mitigating measures had to be considered in the equation of whether he suffered a “substantial limitation,” citing Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).  [The Court acknowledges that the Sutton standard was legislatively overruled by the ADA Amendments Act of 2008, but that the new legislation was not retroactive.]  The panel also holds that it was not a reasonable accommodation for the employee to be completely excused from the task of unloading barrels, when there were lesser accommodations available (such as taking rest breaks).

The Fifth Circuit also holds that the fee award was justified, and closes with this scolding:  “The EEOC must vigorously enforce the Americans with Disabilities Act and ensure its protections to affected workers, but in doing so, the EEOC owes duties to employers as well: a duty reasonably to investigate charges, a duty to conciliate in good faith, and a duty to cease enforcement attempts after learning that an action lacks merit. In this case, the EEOC abandoned its duties and pursued a groundless action with exorbitant demands.”

tell us about your case


our office locations

Outten & Golden LLP
685 Third Avenue, 25th Floor  
New York, NY 10017  
Phone: 212-245-1000
Map and Directions

Outten & Golden LLP
One California Street, 12th Floor
San Francisco, CA 94111
Map and Directions

Outten & Golden LLP
601 Massachussetts Avenue NW
Second Floor West Suite 200W
Washington, DC 20001
Map and Directions