Firefighters ages 55 and over lose a round with the Commonwealth of Puerto Rico in this First Circuit case, which considers the criteria added by Congress in 29 U.S.C. § 623(j) and the effect of the Department of Health and Human Services’s failure to enact implementing rules. The Fifth Circuit, in an unpublished decision, reverses summary judgment in a sex harassment case and addresses a recurrent issue under Title VII: weighing the impact of sexually-offensive remarks in the workplace not specifically addressed to the plaintiff.
Correa-Ruiz v. Calderon-Serra, No. 06-2578 (1st Cir. July 7, 2009): Section 623(j) of the ADEA — in the version adopted in 1996 — allows local governments a safe harbor to adopt mandatory retirement for firefighters and police officers. At the same time, Congress commissioned HHS to study methods for evaluating the fitness of older firefighters: “The 1996 legislation also directed the Secretary of Health and Human Services (‘HHS’) to study and report to Congress within three years on the availability of tests or other methods for assessing the ability of law enforcement officers and firefighters to complete public safety tasks. Within four years, the Secretary was to issue advisory guidelines on the use and administration of physical and mental fitness tests to assess the competency of such personnel, and the guidelines were to be followed by regulations “identifying valid, nondiscriminatory job performance tests that shall be used by employers seeking the exemption.” Pub. L. No. 104-208 § 119(2); 110 Stat. 3009, 3009-24-25 (1996). The legislation further provided that, once the regulations were issued, employers relying on the exemption would “be required to give public safety personnel who reached retirement age an annual opportunity to show fitness for duty by passing such a test. 110 Stat. 3009-25. Individuals who passed the test could not be forced to retire. Id.” No test, though, was ever adopted.
In 2005, Puerto Rico dropped its mandatory retirement date to age 55 and terminated two dozen officers at or over that age (Law 181). Those officers were never tested for fitness, as seemingly contemplated by 1996 statute, but instead were given just 30 days to take retirement. Those officers filed charges with the EEOC, and then sued alleging federal, commonwealth and U.S. constitutional law violations. The district court upheld Puerto Rico’s actions and granted summary judgment.
Affirming summary judgment, the panel holds that the amended Law 181 met the safe harbor requirements. The plaintiffs argued that the imposition of a lower retirement age was conditioned on the HHS first approving a fitness test. The panel rejects this interpretation: “when pieced together, the elements of the statutory requirement are that (1) employers seeking the benefit of the safe-harbor provision (2) must use the tests identified by the Secretary (3) once regulations identifying those tests have been issued.” HHS never adopted a test. Without such a test, “a State or local government seeking to enforce a mandatory retirement provision must show only that: (1) the designated retirement age was set forth in a law that either was (a) in effect on March 3, 1983, or (b) in a law enacted after September 30, 1996, and is no lower than age fifty-five; and (2) the termination was taken pursuant to a bona fide retirement plan that is not a subterfuge for impermissible age discrimination.” The panel goes on to find that the age-55 retirement rule was not a subterfuge for age discrimination, and did not violate due process.
Donaldson v. CDB, Inc., No. 08-60666 (5th Cir. July 6, 2009): Recently, the Eleventh Circuit agreed to rehear en banc, in Reeves v. C.H. Robinson Worldwide, Inc., the issue of whether sexually explicit or offensive remarks are part of an actionable “hostile work environment” under Title VII if they are not specifically directed at the plaintiff. The Sixth Circuit recently reaffirmed that such comments are actionable (see Gallagher v. C. H. Robinson Worldwide, Inc., No. 08-3337 (6th Cir. May 22, 2009)). Now the Fifth Circuit agrees with the Sixth Circuit and, in this non-precedential case, remands for a trial on the Title VII harassment claim.
The plaintiff, an employee at a Popeye’s fast-food outlet, suffered a five-month stream of invective and sexually explicit commentary by the manager (named McLaurin). Though some remarks were directed at the plaintiff herself, other comments were directed at other women, or at women in general:
“Often, McLaurin’s sexually suggestive comments were made generally to the whole staff. When a female with attractive physical features entered the store, he would yell ‘Code Red’, which was a signal for the other male employees to note the presence of the woman. He would also comment about his sexual performance, telling fellow crew members he ‘only had two minutes for a woman and she better hurry up and get hers because he was going to get his’. Finally, he referred to his private parts as Georgia Pacific (log trucks), and commented every time a Georgia Pacific truck passed the restaurant.”
The same manager also made non-sexual remarks that were simply degrading to the plaintiff, about her being “stupid.” When the plaintiff complained to the manager about his conduct, he displayed his true colors: “In a conversation with McLaurin, . . . in which she told him he had ‘crossed the line’ with his sexually suggestive comments, he responded: he did not care what she said; he knew the law; and, in that regard, ‘you can say what you want to say but you can’t touch’.”
The panel reverses summary judgment on the harassment claim, finding the conduct to rise to the “severe or pervasive” level. (It affirmed summary judgment on a constructive discharge claim.) In particular, the panel regards even the comments not directed at the plaintiff to be part of the hostile work environment:
“[T]he comments made to other female employees and to the staff as a whole were not merely “offhand remarks”. Our court has long held that harassment does not have to be directed toward the plaintiff to be considered for a hostile-work-environment claim. Rogers v. EEOC, 454 F.2d 234, 236-239 (5th Cir. 1972), disapproved of on other grounds by EEOC v. Shell Oil Co., 466 U.S. 54 (1984).
“While Rogers was decided in the context of race discrimination, this principle has been applied in the contexts of both race and sex by other circuits. . . .”
“In sum, analyzing the alleged harassment in this action under our precedent, and viewing the claim under the requisite totality of the circumstances-noting McLaurin’s comments to Donaldson, to other female employees, and to the staff as a whole, as well as the abbreviated time frame in which they took place-we conclude that Donaldson has created a material-fact
issue on whether the comments were actionably ‘severe or pervasive’.”
The panel also finds a genuine issue of material fact about the Faragher/Ellerth defense. The employer complained that the plaintiff waited only three days between filing her internal complaint of harassment and filing a charge with the EEOC. But as the panel observes, “Donaldson does not maintain that CDB failed to notify her of the complaint, conduct an investigation, and come to a satisfactory resolution in the three days between the filing of the two complaints. Rather, Donaldson asserts that, after a failure to receive any communication from CDB in this time period, she resorted to the EEOC process.”