Peyton v. Freds Stores of Arkansas, Inc., No. 08-2346 (8th Cir. Apr. 15, 2009); Brooks-Ngwenya v. Indianapolis Public schools, No. 08-1973 (7th Cir. Apr. 15, 2009); Dwyer v. Ethan Allen Retail, Inc., No. 08-10005 (11th Cir. Apr. 15, 2009)

| Apr 14, 2009 | Daily Developments in EEO Law |

There plaintiffs whiff today in There different circuits: an ADA case in the Eighth Circuit dismissed on the ground that the employee was not a “qualified individual,” a Title VII/Equal Pay Act case dismissed on res judicata grounds in the Seventh Circuit, and an unpublished Eleventh Circuit ADA case finding that the decision-maker was not a “cat’s paw.”

Peyton v. Fred’s Stores of Arkansas, Inc., No. 08-2346 (8th Cir. Apr. 15, 2009): The employee, a store manager, was diagnosed with ovarian cancer and spent six months in hospitalization and chemo.  Though she survived the illness, the store fired her because she could not come into work, and replaced her with an assistant manager.  The panel observes that “[t]he parties here agree that plaintiff was disabled because of her illness and treatment, and their sole focus is whether plaintiff was otherwise qualified to perform the essential functions of her job either with or without accommodation.”  It holds that the inability to go to work for an extended and indefinite period could not, as a matter of law, be accommodated:

“Although plaintiff was given a limited release to seek employment in March of 2006, she concedes that her illness and treatment prevented her from performing the duties as defendant’s store manager during the six months of chemotherapy. On the issue of reasonable  accommodation, she admits that at the time of termination she had no idea when, if ever, she would be able to return and that a request for an indefinite leave of absence (regardless which party had the obligation to request it) is not a reasonable accommodation under the ADA.”

Brooks-Ngwenya v. Indianapolis Public schools, No. 08-1973 (7th Cir. Apr. 15, 2009):  This case is primarily about a copyright claim — the plaintiff school teacher contends that the board infringed her rights over an educational curriculum that she developed.  Her primary claim fails both because (1) she failed give notice of suit to the Register of Copyrights (a statutory prerequisite to suit), and in any event (2) she did not “show[] that the form of words in which she embodied her ideas was copied” by the board.

The per curiam panel then affirms summary judgment on the employment discrimination claims because of prior litigation:  “When the parties settled that suit, they stipulated to a dismissal with prejudice. Such a dismissal is a final judgment for purposes of claim preclusion (collateral estoppel, in an older vocabulary) and so bars the present suit.”  (Whoopsie — the court here means “res judicata”; “collateral estoppel” is issue preclusion, and frankly I liked the older terms better, because they are easier to distinguish and sound more profound.)

Dwyer v. Ethan Allen Retail, Inc., No. 08-10005 (11th Cir. Apr. 15, 2009): The plaintiff, a furniture sales associate, allegedly got on the wrong side of a company conflict-of-interest policy.  Her direct supervisor (named Burton) turned her in to the next-level manager (named Greenberg), who fired her.  Plaintiff alleges that the reason why Burton turned her in was bias in account of her disability (a missing hand), and that Greeberg was a mere “cat’s paw” for Burton.  The company said that Greenberg’s decision was entirely independent of any alleged animus that Burton had against the plaintiff.

We’ve not yet gotten any guidance from the Supreme Court on the “cat’s paw” template applied increasingly to routine individual cases, such as this one.  The Eleventh Circuit holds (under its own precedent) that, beyond dispute, the decision maker acted independently of Burton:

We conclude that summary judgment was appropriate here because Dwyer did not make a prima facie case of discrimination under a cat’s paw theory. Even assuming that Burton harbored a discriminatory animus towards Dwyer, record evidence showed that Greenberg independently investigated Dwyer’s conduct and that Greenberg came to her own conclusion that a Policy violation had occurred. Greenberg reviewed the invoice Burton gave to her and determined that there had been an order for cushions, a price, and a receipt for money paid on Ethan Allen letterhead. Greenberg also confirmed that Dwyer had received a copy of the Policy and interviewed her about her acts. Burton’s deposition testimony also show the independent nature of Greenberg’s investigation: he stated that he made no recommendation to Greenberg about the course of action to take on Dwyer and simply provided Greenberg with the documentation he received from the customer.”

There appearing to be no issue about whether the explanation for firing the employee was a pretext for discrimination, summary judgment is affirmed.

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