There more decisions for the merry month of May: a split outcome in the Eighth Circuit, affirming a bench verdict in favor of the union on a disparate impact theory but remanding a retaliation claim for trial; a very brief decision in the Sixth Circuit, affirming summary judgment on claim preclusion grounds; and an elaborate unpublished decision in the Fifth Circuit, with a dissent, expending some 30 pages over whether the plaintiff adequately alleged a § 1983 direct-evidence, race discrimination claim.
Franklin v. Local 2 of the Sheet Metal Workers Int’l Assoc., No. 08-2707 (8th Cir. May 13, 2009): The union is the defendant here because it was the conduit for employees to obtain employment in the trade:
“The primary function of Local 2 is to negotiate the terms and conditions of its members’ employment with contractors who are either signatories to a collective bargaining agreement (CBA) with Local 2 or who recognize Local 2 as the bargaining representative for sheet metal workers within Local 2’s jurisdiction. Under Local 2’s ‘Referral Procedures,’ signatory contractors are required to provide Local 2 the ‘first opportunity . . . to provide suitable journeymen sheet metal workers.’ In the event Local 2 ‘fails to supply journeymen sheet metal workers within forty-eight hours,’ the contractors are free to hire workers outside of Local 2’s membership. Contractors can comply with the CBA’s ‘first opportunity’ provision by hiring Local 2 members through one of There procedures: (1) solicitation, (2) request, or (3) referral.
“A solicitation occurs when a Local 2 member applies directly to a contractor for a job. With a solicitation, the hiring decision is in the sole discretion of the contractor. Local 2 does not participate in the hiring decision, but Local 2 requires the contractor to send paperwork to Local 2 containing the hired member’s name and the date on which the member was hired. Solicitation is the most common procedure under which members obtain employment.
“A request hiring occurs when a contractor contacts Local 2 and asks for a particular member by name. Local 2’s only participation in a request hiring is to receive the request and to record the date and the name of the member.
“A referral occurs when a contractor contacts Local 2 and asks Local 2 to refer members with specific skills, rather than requesting particular members by name. To fill the needs of its members and the contractors who ask for referrals, Local 2 maintains an out-of-work list (OWL). Journeymen members of Local 2 who are available for employment sign the OWL, and when a contractor contacts Local 2 for a referral, Local 2 uses the OWL to refer members.”
The five plaintiffs complained — under Title VII and section 1981 — that the referrals were carried out in such a way as to discriminate against, or disparately impact, African-American journeymen. Further, they alleged that employees who complained about the racial disparity were penalized when the union “reveal[ed] to contractors that Appellants had filed charges of discrimination” and “post[ed] in the union hall monthly statements which identified Appellants and the legal bills associated with Appellants’ EEOC proceedings.”
The district court granted summary judgment on all but the disparate impact claim. Following a seven-day bench trial, the judge held that the plaintiffs failed to present a prima facie case. It held that the plaintiffs’ expert report was unreliable, principally because it did not consider race-neutral explanations for the plaintiffs receiving fewer referrals (such as that some plaintiffs entered into settlements with several contractors promising not to re-apply for work, some were unwilling to work outside the metro area, etc.). The report also failed supposedly “to account for the impact of ‘core employees’ on the total number of hours worked.” (“Core employees” are those who regularly work for a select employer.)
The Eighth Circuit panel affirms the bench verdict but remands for a trial on the retaliation claim. On the former, the court finds no clear error in discrediting the expert report, and that the district court was not required to consider “business necessity” because the plaintiffs failed to make out a prima facie case. As for retaliation, while the court would not go so far as plaintiffs in holding that posting their names publically was retaliation per se, it did hold that the record presented genuine issues of material fact about pretext:
“The evidence raises a possible reasonable inference Local 2 was aware of a negative impact on Appellants based upon the listing and, during meetings, reading of Appellants’ names, claims, and related costs. Local 2 initially refused to end these practices after the EEOC requested a halt, but later blacked out Appellants’ names on the postings. However, Local 2 continued to read Appellants’ names at union meetings. Although Local 2’s prior practice and obligation to disclose expenses may justify what Local 2 did, the degree of Local 2’s disclosures raises credibility issues and a potential reasonable inference of retaliation. Appellants’ retaliation claim cannot be resolved as a matter of law.”
Bragg v. Flint Board of Education, No. 08-1632 (6th Cir. May 13, 2009): Not sure why the Sixth Circuit published this one, but if you want it, here’s four pages on why the dismissal of a discrimination claim under Fed. R. Civ. P. 41(b) is “on the merits” for purposes of res judicata.
Knatt v. Hospital Dist. No. 1, No. 07-31027 (5th Cir. May 12, 2009): In contrast to the Sixth Circuit case, here’s an unpublished decision that probably warranted publication. The plaintiff is an African-American doctor with privileges at a local hospital. Following a peer-review process, he is suspended for 21 days for rule violations. Dr. Knatt claims that some of the peer review members used racial slurs and that the process was deliberately tilted against him because of race. The district court granted summary judgment on his section 1983 claim.
A big issue turns out to be whether the plaintiff used the correct method of proof. In the Fifth Circuit (and other federal courts), case law distinguishes between direct- and indirect-methods of proof. The indirect method — McDonnell Douglas — typically demands that the plaintiff identify non-minority individuals who were similarly-situated and treated relatively better than the plaintiff. This, the panel agreed, Dr. Knatt failed to do. The panel majority, signed by Chief Judge Jones, holds that Dr. Knatt also failed to preserve the “direct-evidence” method of proof on summary judgment, or on appeal:
“Thus, Knatt recites the phrase ‘direct and circumstantial evidence’ without acknowledging the difference between the two categories, and without citing any authority. He does not argue (1) that the district court should have applied a direct evidence standard rather than McDonnell Douglas, or (2) that his claim satisfies a direct evidence standard as set forth in relevant precedent. Finally, he uses the phrase in the context of a meritless argument criticizing the
district court’s McDonnell Douglas analysis. The entire peer review cannot be an adverse employment action, because ‘an adverse employment action consists of ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.’ Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004) (internal quotation omitted). In this context, Knatt’s mention of the phrase ‘direct and circumstantial evidence’ does not raise an adequately briefed argument that Knatt can survive summary judgment because of direct evidence of discrimination. Because Knatt failed to adequately raise, argue, or brief any issue regarding the direct evidence method before us on appeal, he has waived any such argument.”
The dissent, by Judge Davis, finds by contrast that this method of proof was preserved:
“Dr. Knatt argued both in the district court and in this court that he was entitled to defeat the summary judgment motion based on the direct and circumstantial evidence which he described in his brief. Two full pages of Dr. Knatt’s brief are dedicated to a discussion of evidence of racial animus and how that evidence establishes discrimination. The remainder of the circumstantial
evidence is discussed throughout his brief. Despite the fact that this is Dr. Knatt’s central argument in this appeal, the majority concludes that this issue is inadequately briefed to preserve the argument on appeal. Apparently the majority would require Knatt to tag each item of evidence as either supporting his argument of discrimination under the McDonnell Douglas standard or his argument of discrimination based on direct and circumstantial evidence. Such
a requirement makes no sense. If a plaintiff can raise a genuine issue of material fact tending to show discrimination, the defendant’s motion for summary judgment must be denied.”
The majority and dissent also sort through the plaintiff’s allegations that doctors and nurses involved in the peer review used racial slurs, with the majority discounting them as essentially stray remarks, and the dissent finding them probative of racial animus against the plaintiff.
This decision seems an artifact of the direct/indirect distinction, used to screen cases at summary judgment, which seems achingly out-of-step with how these cases actually get tried. Publishing such a decision — perhaps even getting it heard en banc — might be cathartic to this process.