Palmer v. Salazar, No. 05-1075 (10th Cir. Apr. 29, 2009) ; Gerving v. Opbiz, LLC, No. 07-16822 (9th Cir. Apr. 29, 2009)

| May 2, 2009 | Daily Developments in EEO Law |

Two notable, though unpublished, opinions came down last Thursday. The Tenth Circuit holds that federal district courts have subject-matter jurisdiction to enforce federal-employee settlement agreements with the government, at least for claims arising under the ADEA. The Ninth Circuit reverses summary judgment in a case involving a Title VII caregiver-discrimination claim.

Palmer v. Salazar, No. 05-1075 (10th Cir. Apr. 29, 2009):  Employees in the federal government face limited options when confronted with the breach of a settlement agreement.  Under 29 C.F.R. § 1614.504(a), a federal sector employee must complain of non-compliance to the agency’s EEO director, within 30 days of breach, to either have the “terms of the settlement agreement be specifically implemented or, alternatively, [to have] . . . the complaint be reinstated for further processing from the point processing ceased.” Thus, courts hold that they lack jurisdiction to enforce an agreement; all they can do is reinstate a claim.  Lindstrom v. Norton, 510 F.3d 1191, 1194-95, 102 FEP 551, 20 A.D. Cas. 20 (10th Cir. 2007); Frahm v. United States, 492 F.3d 258, 262-63, 100 FEP 1631 (4th Cir. 2007).

Yet in this case, the Tenth Circuit finds a limited basis of jurisdiction at least for judicial recission of a federal-sector ADEA settlement, under the Older Workers Benefit Protection Act (“OWBPA”), Pub. L. 101-433, 104 Stat. 978.  Holds the Court:

“The OWBPA effectively creates ‘its own regime for assessing the effect of ADEA waivers, separate and apart from contract law.’ Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427 (1998) (emphasis added); see also id. (‘The OWBPA implements Congress’ policy via strict, unqualified statutory stricture on waivers, and we are bound to take Congress at its word.’). The OWBPA provides a plaintiff a cause of action for declaratory or injunctive relief to negate the validity of a waiver as it applies to an ADEA claim.

                *     *     *     *

“In this case, Mr. Palmer argued that the waiver of his ADEA rights in his settlement agreement with the Department was not knowing and voluntary because he was mentally incompetent at the time that he agreed to it. And, based on this assertion, he has sought to have his settlement agreement rescinded. Mr. Palmer did not request damages in relation to his rescission claim and, therefore, seeks only equitable relief.

“The ADEA provides a grant of subject matter jurisdiction (and a waiver of sovereign immunity) to determine whether Mr. Palmer’s waiver of his ADEA rights was knowing and voluntary. However, the subject matter jurisdiction provided by § 626(f) extends solely to his waiver of ADEA rights.”

The court nonetheless affirms the dismissal, on jurisdictional grounds, of challenges to the ADA/Title VII claims (citing Lindstrom).

Gerving v. Opbiz, LLC, No. 07-16822 (9th Cir. Apr. 29, 2009):  The panel reverses summary judgment on both a Title VII gender-discrimination claim and a retaliation claim,  The first claim was bolstered by substantial, though circumstantial, evidence —

“Gerving made the required showing by pointing to evidence that her supervisor, Jim Lauster (‘Lauster’), began to give her poor performance reviews after she became a stepmother and told her that working mothers could not perform as well as men or women without children, that mothers should stay at home, and that she would have to choose between being a mother and a sales manager. Gerving also presented evidence that Lauster made similar discriminatory remarks to another employee, Kadija Tejan, during her pregnancy and subsequently declined to consider her for a promotion. Further, Gerving pointed to evidence that she was reprimanded for telephone calls to her children and time away from work, while a male coworker with children was not. Although there was some evidence that Gerving was not performing satisfactorily, other evidence showed positive customer feedback. Making all reasonable inferences in favor of Gerving, as is required on summary judgment, a jury could conclude that her poor reviews were motivated, at least in part, by Lauster’s discriminatory animus.”

On the retaliation claim, the panel writes that the record supports an inference of retaliation, based on Lauster’s attempt to fire Gerving less than two weeks after discovering that she files a complaint (and failed only because the company imposed a “firing freeze” at that time.  As soon as possible, the record suggests, the manager was looking for opportunities to fire the employee:

“Although [defendant] cited customer complaints about Gerving, her poor performance, and her profanity-laced argument with a coworker as nondiscriminatory reasons for her termination, Gerving presented the following evidence that those reasons were pretextual: (1) her performance reviews were satisfactory until she became a stepmother, (2) Lauster tried to fire her shortly after her complaints to Human Resources and was prevented from doing so only by a firing freeze, (3) Lauster told Gerving there would be ‘zero tolerance’ under the new management, (4) Lauster began discussing Gerving’s termination with the new management prior to the events that were ultimately cited as the bases for her termination, (5) the customer complaints cited as reasons for her termination were not uncommon and were used by customers to leverage discounts on disputed fees, (6) the customers who complained about Gerving had such fee disputes, and (7) profanity was common in the workplace and not grounds for termination.”

So plaintiff, though waiting patiently on appeal, finally enjoys vindication and a remand for trial.

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