Pinkerton v. Colorado DOT, No. 07-1494 (10th Cir. Apr. 16, 2009); A.V. v. iparadigms, No. 08-1424 (4th Cir. Apr. 16, 2009); In re Sony BMG Music Entertainment, No. 09-1090 (1st Cir. Apr. 16, 2009)

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

Here’s a hard-fought Title VII sex harassment and retaliation case, ended in the district court by summary judgment, and resulting in a split Tenth Circuit panel affirmance. The legal issues include how long an employee may wait to complain about supervisor harassment, and whether temporal proximity alone can support an inference of retaliation.

Also, two (non-employment) copyright cases of interest: in the Fourth Circuit, what can happen when a plausibly-aggrieved plaintiff overreaches in an investigation; in the First Circuit, still not ready for their close-up on Web 2.0.

Pinkerton v. Colorado DOT, No. 07-1494 (10th Cir. Apr. 16, 2009):  In a 2-1 decision, the panel holds that the employee could not present a genuine issue of material fact on either of her Title VII claims. Judge Ebel, dissenting, illustrates what such a trial would have been about.

Plaintiff, an administrative assistant, allegedly encountered a string of sexually-explicit remarks by her supervisor during a probationary period (she was on a performance improvement plan because of excessive errors in her work):

“After the November 7, 2002, meeting, however, Mr. Martinez began making inappropriate, sexually oriented remarks to Ms. Pinkerton. In December, 2002, Mr. Martinez asked Ms. Pinkerton questions such as, ‘How can you be divorced so long and be without men?’ and ‘Don’t you get urges?’ Ms. Pinkerton testified that these questions made her feel sick to her stomach. On January 6, 2003, after observing a man walk past Ms. Pinkerton’s office and wave to her, Mr. Martinez asked Ms. Pinkerton whether she ‘ha[d] anything going on with the man that just waved.’ The same day, Mr. Martinez asked her what her breast size was. On another occasion, Mr. Martinez asked Ms. Pinkerton if she masturbated and if she had breast enlargements. Mr. Martinez also told Ms. Pinkerton that he liked it when she wore skirts and tried to tell her a story about a married woman who ‘came on’ to him. Ms. Pinkerton testified that the last inappropriate comments by Mr. Martinez occurred the week prior to February 21, 2003, when he made comments about her ex-husband children, and asked to go to her house for lunch.”

Plaintiff, after the final comment, called the internal civil rights administrator to complain, then made a formal written complaint seven days later.  An investigation ensued on the written complaint, leading to the removal of Martinez as plaintiff’s supervisor.  But just six days after the investigator’s report arrived, the agency fired the plaintiff, supposedly for performance-related issues.

The panel — brushing aside any possible “quid pro quo” or “cat’s paw” arguments for imputing sex-harassment liability to the agency — holds that the employer made out its Faragher/Ellerth affirmative defense as a matter of law.  First, the panel holds that the agency maintained a functional anti-harassment policy that promptly investigated the plaintiff’s claims and removed the offender.  Although the agency did not respond to the first complaint by immediately removing the supervisor, the panel concludes that the record is uncontested that the harassment had already ceased and the agency was otherwise prompt in correcting it. Second, it finds that plaintiff’s waiting two months to report the behavior was unreasonable. As for the Title VII retaliation claim, the panel finds that the performance-based reasons for firing the plaintiff were well-founded and pre-existed her harassment complaints, and that the six-day window between the investigator’s report and her firing could not support an inference of retaliation standing by itself.

Judge Ebel dissents on both claims.  On the harassment claim, he finds that it was up to a jury to decide at what point it became reasonable for the plaintiff to report the harassment, noting that the supervisor’s behavior — at an early stage — did not necessarily amount to a hostile work environment:  “to determine reasonableness, an employee’s response to harassing conduct must be determined by reference to many factors: for example, the length of time that elapsed before filing the complaint, the nature of the harassment and particularly the initial stages of the harassment, the accessibility and efficacy of a mechanism for reporting and resolving complaints of sexual harassment, and the plaintiff’s own efforts to stop or avoid escalation of the harassment short of filing a complaint under the defendant’s reporting mechanism.” On the retaliation claim, Judge Ebel found that the six-day interim alone created a triable issue of fact about a retaliatory motive, and that, in any event, there were doubts about whether the agency genuinely believed that her performance was serious enough to warrant termination at that time.

A.V. v. iparadigms, No. 08-1424 (4th Cir. Apr. 16, 2009):  Four students, by their parents, sued an internet-based service (iparadigms) that allows schools to comb their homework papers for evidence of plagiarism.  The students charged that by digitally copying the papers, and maintaining them in a database archive for future inspection, the company infringed copyright interests in their homework in violation of 17 U.S.C. § 501. (Plaintiffs’ counsel applied for and received copyright designation for their homework papers).  The company defended the suit, inter alia, on the ground of fair use.

The panel, affirming summary judgment against the students on this claim, upholds the “fair use” defense.  It affirms that in weighing the four statutory factors — purpose and character of the use, nature of work, amount used and “effect of the use upon the potential market” — there was no genuine issue of material fact about the company’s lawful, limited use of the student-written materials.

But the defendant also had claims against one of the students for allegedly hacking into its website by using a password discovered on the internet, under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and the Virginia Computer Crimes Act, Va. Code Ann. § 18.2-152.3.  While the district court granted summary judgment on these claims as well, the Fourth Circuit re-animates them on appeal.  The district court held that both acts required proof of actual, non-consequential damages. But the panel holds that the time that the company spent investigating the breach of its security was itself a compensable injury.  And so the plaintiffs, who seemed to have found a legal lever for up-ending the plagiarism detection service, now find themselves on the receiving end of a bill of costs (no doubt sizable) and civil liability in the $100,000’s range, to boot.

In re Sony BMG Music Entertainment, No. 09-1090 (1st Cir. Apr. 16, 2009):  Tech-savvy BU Prof Joel Tenenbaum is a defendant in music-downloading lawsuit in Boston.  He filed a motion to allow webcasting of a motion argument before U.S. District Court Judge Nancy Gertner, who granted the relief over the defendants’ objections.  But the defendants carried the fight on to the First Circuit, and won a mandamus order to turn off the webcams.  The panel enforces the district court’s local rule 83.3(a), which states:

(a) Recording and Broadcasting Prohibited. Except as specifically provided in these rules or by order of the court, no person shall take any photograph, make any recording, or make any broadcast by radio, television, or other means, in the course of or in connection with any proceedings in this court, on any floor of any building on which proceedings of this court are or, in the regular course of the business of the court, may be held.”

The district court had held that the “by order of the court” exception conferred discretion upon the judges to allow broadcasts in their own courtrooms, but the panel holds that this section is cabined by subsection (c) of the rule, which provides only two exceptions to the no-photography rule (i.e., “(1) the use of electronic or photographic means for the preservation of evidence or the perpetuation of a record, and (2) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings”). The panel leavens its analysis with [1] a twelve-year-old, non-binding policy guidance of the Judicial Conference of the United States (expressing its “view that it would not be appropriate to require . . . non-ceremonial proceedings to be subject to media broadcasting”); and [2] a 1996 policy statement of the First Circuit Judicial Council about cameras in the courtroom — so obscure that neither the parties, nor the district court knew about it.

Other arguments in defense of the order fall, as well. A First Amendment right to a public trial, for instance, does not (according to the panel) require web broadcasting: “While the new technology characteristic of the Information Age may call for the replotting of some boundaries, the venerable right of members of the public to attend federal court proceedings is far removed from an imagined entitlement to view court proceedings remotely on a computer screen.”

The panel also brushes aside the argument that the rule and policy statements do not specifically address internet broadcasting:

“The difference between televising and webcasting is one of degree rather than kind. Both are broadcast mediums. The absence of a specific reference to webcasting is not telling; both at the time when the policy was promulgated and at the time when the resolution was adopted, Internet webcasting had not attained the ubiquity that currently prevails. What is more significant is that the intention of both the Judicial Conference, and the circuit council is transparently clear. That intention is to forbid all broadcasting of federal district court proceedings in civil cases, save only for the enumerated exceptions. The webcasting that the district court authorized contravenes that intention.”

A concurring opinion by Judge Lipez grants that Judge Gertner abused her discretion, but notes that “in my view, there are no sound policy reasons to prohibit the webcasting authorized by the district court. Therefore, this case calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome.”  We can be sure, for the foreseeable future, that the federal judiciary will resist all technological intrusions into even their public activities.

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