In my march to catch up with a week's worth of developments, here's a First Circuit "sex-plus" case for a mother of kindergarten-age triplets (and an eleven-year-old son), with summary judgment reversed, and a Third Circuit case where an order denying arbitration under a law-firm's by-law was affirmed.
Chadwick v. Wellpoint, Inc., No. 08-1685 (1st Cir. Mar. 26, 2009): The stereotype that "motherhood makes you stupid" is in full display. Plaintiff, an eight-year employee of Wellpoint, was denied a promotion for which she was a finalist. She present the following evidence that the decision-makers were biased because plaintiff had four kids at home:
"First, on May 9, 2006, two months before the decision was reached, Miller, the decision maker, found out that Chadwick had three six-year-old children (in addition to an eleven-year-old
son). Miller sent an email to Chadwick stating, 'Oh my -- I did not know you had triplets. Bless you!'
"Second, during Chadwick's interview with Brink, her former supervisor, she was asked how she would respond if an associate did not complete a project on time. Unhappy with Chadwick's answer, Brink replied, 'Laurie, you are a mother[.] [would you let your kids off the hook that easy if they made a mess in [their] room[?] [would you clean it or hold them accountable?'
"Third, and most important, when Miller informed Chadwick that she did not get the promotion, Miller explained: 'It was nothing you did or didn't do. It was just that you're going to school, you have the kids and you just have a lot on your plate right now.' In the same conversation, Miller said that, 'if [the three interviewers] were in your position, they would feel overwhelmed.' Finally, Miller also told Chadwick that, 'there would be something better down the road,' and that Chadwick would look back and say 'it's a good thing that opportunity didn't work out because I'm happier with this down the road.'"
The employer defended that it promoted the other candidate because plaintiff interviewed poorly. Despite the above record, the district court -- believing that the employee's record failed to raise an inference of discrimination based on sex -- granted summary judgment. The First Circuit reverses.
The First Circuit opinion first renews the seldom-cited framework of "sex-plus" discrimination:
"[U]nlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities. It is undoubtedly true that if the work performance of a woman (or a man, for that matter) actually suffers due to childcare responsibilities (or due to any other personal obligation or interest), an employer is free to respond accordingly, at least without incurring liability under Title VII. However, an employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can
fulfill their responsibilities.
The First Circuit then holds that the district court was guilty of two analytical errors. The first was to assume that a plaintiff could only present an inference of discrimination either by way of "direct evidence" of animus, or by the burden-shifting method of McDonnell Douglas. The panel concludes that proof of discrimination need not be rigidly confined to these categories, and that an inference of discrimination may be presented by circumstantial evidence:
"We reject the district court's requirement that Miller's words explicitly indicate that Chadwick's sex was the basis for Miller's assumption about Chadwick's inability to balance work and home. To require such an explicit reference (presumably use of the phrase 'because you are a woman,' or something similar) to survive summary judgment would undermine the concept of proof by circumstantial evidence, and would make it exceedingly difficult to prove most sex
discrimination cases today."
* * * *
"Given what we know about societal stereotypes regarding working women with children, we conclude that a jury could reasonably determine that a sex-based stereotype was behind
Miller's explanation to Chadwick that, 'It was nothing you did or didn't do. It was just that you're going to school, you have the kids and you just have a lot on your plate right now.' Particularly telling is Miller's comment that, 'It was nothing you did or didn't do.' After all, the essence of employment discrimination is penalizing a worker not for something she did but for something she simply is. A reasonable jury could infer from Miller's explanation that Chadwck wasn't denied the promotion because of her work performance or her interview performance but
because Miller and others assumed that as a woman with four young children, Chadwick would not give her all to her job."
Second, the panel holds that the district court weighed evidence inappropriately on summary judgment and drew inferences in favor of the moving party:
"[T]he decision maker's reaction upon learning of Chadwick's three small children was, 'Bless you!' This statement is susceptible to various interpretations, but a jury could reasonably conclude that Miller meant that she felt badly for Chadwick because her life must have been so difficult as the mother of three young children. [fn. 10: The district court erred by concluding that the 'Bless you!' comment was conclusively 'a friendly exclamation.' This is a factual conclusion that a judge at summary judgment is not free to make. A jury could agree with Chadwick's view that Miller's comment suggested pity rather than respect. Therefore, at summary judgment, we must draw this inference in Chadwick's favor.]"
(Unfortunately, the panel also affirms the exclusion of the employee's expert witness, Dr. Mary Still, on Daubert grounds. Oh well, can't have everything!)
Kirleis v. Dickie, McCamey & Chilcote, No. 07-3504 (3d Cir. Mar. 24, 2009): A law firm partner sues under federal and Pennsylvania law for sex discrimination and retaliation, and the firm as a defense raises a by-law that requires arbitration. The district court declines to enforce and the law firm appeals to the Third Circuit. At first, the panel certified the legal question to the state supreme court, butte state court denied the petition.
So ruling on the merits, the panel finds that under Pennsylvania law, the plaintiff was not bound by the by-law because it was never drawn to her attention. The plaintiff submitted her affidavit, which stated:
"15. I was never provided with a copy of the By-Laws of defendant Firm at the time that I was made a Class B shareholder or at anytime thereafter. In fact, I only saw the documents which Mr. Wiley purports to be Firm’s By-Laws for the first time when I received Mr. Wiley’s Affidavit in connection with this case, approximately 9 years after being made a Class B shareholder-employee and 19 years after commencing the practice of law with the firm."16. I was never informed of the presence of the arbitration provision in the By-Laws which Firm is now seeking to enforce against me.
"17. I never signed any agreement or document which refers to or incorporates the arbitration provision in the By-Laws.
"18. I never agreed to arbitrate my claims against Firm."
The law firm argued that the partner was at least on constructive notice of the rules of her own law practice, even if she denied actually ever have read them, or ratified those rules by accepting the benefits of the practice. The district court and the Third Circuit conclude that Pennsylvania law requires actual knowledge of the agreement to arbitrate claims.
The panel was most troubled by the intersection between this legal principle, specific to arbitration, and the presumed principle under Pennsylvania corporate law, Morris v. Metallien Land Co., 30 A. 240, 241 (Pa. 1894), that a member of corporation "is subject to its constitution, and bound by its by-laws . . . which he is presumed to know and understand." But the panel holds that specific requirement of actual consent must command. And for this ruling, it cites the Pennsylvania Supreme Court's order denying the petition, which noted that the "The phrase stating that a shareholder is presumed to know and understand the bylaws is part of a lengthy quote of an 1877 New Jersey Court of Errors and Appeals decision. . . . The ‘presumed to know and understand' phrase which concerns the Third Circuit, on the other hand, had no bearing on the resolution in Morris . . . ."