The Sixth Circuit affirms attorneys’ fees — in part — against eight unsuccessful race discrimination claimants in Ohio and one of their lawyers. The First Circuit refuses to apply equitable tolling under Title VII, where the employee did not get notice of dismissal of his EEOC charge. And the Second Circuit thankfully reverses summary judgment in two unpublished cases, so I have a little good news to report.
Garner et al. v. Cuyahoga County Juvenile Court, No. 07-3602 (6th Cir. Jan. 22, 2009): The Sixth Circuit previously affirmed (in an unpublished opinion) summary judgment against a group of jail employees who sued their supervisors under a variety of state and federal theories, including federal equal protection under § 1983. The district court on remand awarded the defendant $69,345.28 on costs (not appealed), and a whopping $660,103.49 in fees against eight of the plaintiffs under § 1988. And, to cap things off, the district court made one of the lawyers jointly and severally liable for fees under 28 U.S.C. § 1927.
The Sixth Circuit panel gives counsel and the employees some relief and, though affirming the findings of frivolousness, remands for a downscaling of the final amount. The panel pays tribute in its opinion to the National Employment Lawyers Association, a plaintiff-side bar association that filed an amicus (“[t]he arguments as developed by NELA’s amicus brief on behalf of the employees are often clearer than those presented in the appellants’ brief”).
Regarding the frivolousness findings, the panel concludes that, given the abuse-of-discretion standard attendant to review of a fee award, it could not reverse the decisions below even if (on de novo review) it might otherwise have been inclined to deny the award. The panel also holds that it is not necessarily enough for an employee to make out a prima facie case to fend off a fee award. It also holds — in spite of a game effort by NELA — that “there is no indication that the appellants took the[ir] disparate-impact claims seriously,” having “failed to hire an expert to either refute the CCJC’s employment statistics or to identify a CCJC policy that created a disparate impact.” And on plaintiffs retaliation claims, the panel holds that they either “failed to proffer any evidence of causation” or made a “film sy” case for “adverse employment actions” under the standard of Burlington Northern.
But because different plaintiffs had different claims, of varying quality, the panel holds that the district court erred in imposing joint and several liability. The panel also holds that the district court’s failure to make findings on some parties’ ability to pay warrants remand for recalculation of their awards: “On remand, the court should allow the employees an opportunity to demonstrate their inability to pay. If the employees cannot produce addition al information in support of this affirmative defense, the court should consider the salary information already contained in the record in determining whether the employees have satisfied their burden.” The district court is ordered on remand to reconsider the date for when the award of fees ought to accrue for each plaintiff.
Finally, though the attorney conceded full responsibility for the outcome (seeking to take her clients off the hook), the panel does not transfer all liability to her under section 1927, but holds that the concession was relevant to apportioning the award below. It then takes a shot at the plaintiffs’ lawyer, whose continued representation of the employees presents an apparent conflict: “[M]any civil rights plaintiffs might be able to retain an attorney only on a contingency basis, and requiring such plaintiffs to obtain an attorney to defend themselves against sanctions might be unrealistic. Although Frost asserted during oral argument that she obtained her clients’ informed consent to represent them on this appeal, we express no opinion on whether the applicable professional responsibility standards permit Frost to continue representing her clients in this matter.”
Abraham v. Woods Hole Oceanographic Institution, No. 08-1655 (1st Cir. Jan. 22, 2009): The plaintiff filed an untimely Title VII claim, but argued that the limitations period ought to be equitably tolled because he never received notice of the dismissal of his charge. The panel, affirming judgment on the pleadings, holds that the failure to obtain notice was attributable to the employee’s negligence, for failing to keep the EEOC informed of his new address:
“Dr. Abraham never received the EEOC First Dismissal Notice because before receiving said notice, he moved from Queens, New York to Lynchburg, Virginia and never filed a change of address with the EEOC. Dr. Abraham’s lack of diligence in filing a change of address with the EEOC as required by 29 C.F.R. § 1601.7(b) is sufficient to reject his equitable tolling claim. Furthermore, the fact that Dr. Abraham originally filed his complaint with the MCAD and had no initial communication with the EEOC does not excuse his failure to provide a change of address to the EEOC because the MCAD Dismissal Notice informed him that his Title VII claim was to be reviewed by the EEOC and informed him of the location of the EEOC office. The MCAD became aware on November 9, 2006 that Dr. Abraham had a change of address when he appealed the [Massachussettes Commission Against Discrimination’s] determination through a request letter. Even though the EEOC First Dismissal Notice was issued thereafter, on November 24, 2006, the MCAD’s actions in not forwarding this address to the EEOC cannot serve as an excuse for Dr. Abraham’s failure to provide the Virginia address to the EEOC.” [Citations omitted.]
Rambacher v. Bemus Point Cent. Sch. Dist., No. 07-4728 (2d Cir. Jan. 22, 2009): In an ADA case, the plaintiff attempted to return to her position as a Computer Coordinator, but was prevented from doing so. The Second Circuit reverses the district court on summary judgment, holding that there were genuine issues of material fact about whether she was qualified to return to her job, whether the position continued to exist, and whether similarly-compensated positions were available. The panel holds that the employer’s unexplained failure to re-test the plaintiff’s fitness was probative of the qualifications issue.
“In February 1998, while plaintiff was on medical leave, plaintiff’s treating psychiatrist wrote to the School District, stating, ‘It its my opinion that [plaintiff] is on the mend, and will be able to return to her regular duties (or equivalent) in a few months’ time, as depression, even severe (as hers is), is treatable.’ A few months later, in June 1998, plaintiff contacted the School District, asked to be reinstated in her former position, and volunteered for a medical examination by a physician or psychiatrist of the defendants’ choosing to prove her competency. The School District had previously approved plaintiff’s medical leave ‘subject to the right of the District to obtain a further physical and/or psychological examination of Ms. Rambacher prior to her either returning to work or extending her leave beyond that granted herein.’ However, for reasons that are unclear, the School District did not seek an examination of plaintiff. Under these circumstances, there is sufficient evidence in the record for the question of plaintiff’s qualification for the job to be submitted to a jury. Summary judgment on this ground was therefore inappropriate.”
The panel also reaffirms that “[a]lthough reassignment to a vacant position may be considered a ‘reasonable accommodation’ where a disabled employee’s former position is no longer available, Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99 (2d Cir. 1999), plaintiff has established a triable issue of fact as to whether her prior position was available when she attempted to return to work.”
Young v. City of Syracuse, No. 07-4019 (2d Cir. Jan. 21, 2009): Finally, the Second Circuit reverses summary judgment in a race discrimination case. It does so primarily on the ground that the pro se plaintiff was not adequately cautioned by the district court judge about the requirements of summary judgment. But it also holds that “the District Court incorrectly instructed plaintiff that he could not allege injuries under both Title VII and 42 U.S.C. § 1983 based on the same facts.”