Pedreira v. Kentucky Baptist Homes for Children, No. 08-5538 (6th Cir. Aug. 31, 2009); Floyd v. Amite County school Dist., No. 08-60799 (5th Cir. Aug. 27, 2009); EEOC v. Exxon Mobil Corp., No. 08-10624 (5th Cir. Aug. 27, 2009)

| Aug 30, 2009 | Daily Developments in EEO Law |

Within days of Prowel v. Wise Business Forms, Inc., No. 07-3997 (3d Cir. Aug. 28, 2009), which rejected a Title VII religious discrimination claim by a gay man who alleged harassment by Christians because of his sexual orientation, we get a second Title VII case — this from the Sixth Circuit — challenging the termination of a lesbian social worker. We get the same bottom-line result, dismissing the claim, but leaving a door open for an Establishment Clause challenge. From the Fifth Circuit, we have an inventive-but-failed attempt to bootstrap what looks like a Title IX claim into a Title VII “racial association” case, and an unpublished opinion reversing summary judgment against the EEOC in an ADEA case involving private jet pilots for the oil giant.

Pedreira v. Kentucky Baptist Homes for Children, No. 08-5538 (6th Cir. Aug. 31, 2009):  Last Friday’s blog entry discussed the Third Circuit’s Prowel decision. That case involved a hostile work environment that might, or might not, have been motivated by the employee’s gender orientation. Here, there is no ambiguity:

“KBHC is funded by Kentucky for its participation in the ‘Alternatives for Children Program,’ which provides placement resources for children who have been, or are at risk of being, abused or neglected. In 1998, plaintiff Alicia Pedreira was terminated from her job as a Family Specialist at Spring Meadows Children’s Home, a facility owned and operated by KBHC, when members of KBHC’s management discovered a photograph at the Kentucky State Fair of Pedreirand her female partner at an AIDS fundraiser. Pedreira’s termination notice indicated that she was fired ‘because her admitted homosexual lifestyle is contrary to Kentucky Baptist Homes for Children core values.’ After her termination, KBHC announced as official policy that ‘[i]t is important that we stay true to our Christian values. Homosexuality is a lifestyle that would prohibit employment.'”

Another plaintiff, also self-identified as a lesbian (Vance), claimed that she was discouraged from applying to work at KBHC because of this policy. Plaintiffs sued KBHC for employment discrimination and the use of government funds to advance religion. The district court dismissed the Title VII/Ky. Civil Rights Act religious discrimination claim in 2001 and, after seven (!!) years, dismissed the corresponding Establishment Clause challenge on standing grounds.

On appeal, the court agrees that Vance, who did not apply to work at the defendant, suffered no injury as a mere by-stander to the KBHC policy.  Pedreira’s claim (brought under the Kentucky statute alone) fails, meanwhile, as “[im]plausible” under the Bell Atlantic v. Twombly, 550 U.S. 544 (2007), standard:

“It is undisputed that KBHC fired Pedreira on account of her sexuality. However, Pedreira has not explained how this constitutes discrimination based on religion. Pedreira has not alleged any particulars about her religion that would even allow an inference that she was discriminated against on account of her religion, or more particularly, her religious differences with KBHC. . . . Furthermore, Pedreira does not allege that her sexual orientation is premised on her religious beliefs or lack thereof, nor does she state whether she accepts or rejects Baptist beliefs. While there may be factual situations in which an employer equates an employee’s sexuality with her religious beliefs or lack thereof, in this case, Pedreira has ‘failed to state a claim upon which  relief could be granted.'” [Citations omitted.]

On the plus side, the panel finds taxpayer standing to challenge the use of legislatively-appropriated funds to promote religion: “[T]he plaintiffs have pointed to Kentucky statutory authority, legislative citations acknowledging KBHC’s participation, and specific legislative appropriations to KBHC. Through these specifications, the plaintiffs have demonstrated a nexus between Kentucky and its allegedly impermissible funding of a pervasively sectarian institution. . . . This case thus falls squarely within the line of cases where the Supreme Court and our sister circuits have upheld taxpayer standing when grants, contracts, or other tax-funded aid are provided to private religious organizations pursuant to explicit legislative authorization.” So although the court finds that the employment discrimination claim fares not better under the Establishment Clause, the bar against hiring gays and lesbians is recast as evidence of an intent to advance religion.

Floyd v. Amite County school Dist., No. 08-60799 (5th Cir. Aug. 27, 2009): Plaintiff Floyd, a black coach high school track and field coach for (and principal of) a predominantly African-American public school, invited white prep school athletes to train with his team.  Floyd alleged that the school board president gave him grief about this practice and attempted to plead a “racial association” case under Title VII and § 1981.

Unfortunately for Floyd, the Fifth Circuit (affirming dismissal) holds that animus based on resistance to racial integration does not translate into employment discrimination on the basis of race:

“The association cases are predicated on animus against the employee because of his association with persons of another race. Although Coach Floyd alleged that he was terminated because of a relationship with persons of another race, the white track athletes, the evidence Floyd submitted does not indicate that any animus by his employer was directed at him because of his relationship with these athletes. Rather, the evidence reflects that the racial animus was directed solely towards the white students. Floyd’s evidence of racial animus is based primarily on alleged statements by school Board President Davis. Floyd claimed in a deposition that Davis told him that ‘he did not – that they did not want them white kids over there at [ACHS]. Coach, you know better.’ Similarly, community members Hirschel and Celia Pearson testified by affidavit that, on or about March 30, 2003, Davis made statements to them to the effect that ‘Caucasian students had no business using [ACHS’s] track facilities’ and that ‘Floyd had no business trying to bring the African American and Caucasian students together with the summer track program.’ school Board President Davis’ alleged statements indicate that he was angry with Floyd for allowing white students to intermingle with the black students at ACHS and/or use ACHS facilities, not because Floyd, a black coach, interacted with the white students. Floyd’s attorney at oral argument confirmed that Floyd’s mistake was allowing white and black students ‘to drink from the same water fountain,’ and stated that ‘regardless of whether he was white or black, that the racial animus about mixing races would have cost Coach Floyd his job.’ Although Davis’ statements reflect clear racial animus, nothing in these statements supports a conclusion that the animus was directed at Floyd on the basis of his race.”

Jackson v. Birmingham Bd. of Ed., 544 U.S. 167 (2005) — in which the Supreme Court held that Title IX prohibited retaliation against coaches for asserting a right to non-discriminatory conditions — would appear to be the more apt fit, but does not appear to have been argued here.

EEOC v. Exxon Mobil Corp., No. 08-10624 (5th Cir. Aug. 27, 2009): The employer has, on its staff, corporate pilots who it requires (under company policy) to be removed from duty at the same age as commercial pilots (governed by an FAA regulation). The EEOC challenged this mandatory retirement policy and the employer rejoined with a BFOQ defense. The district court, finding that commercial and corporate piloting are congruent enterprises, credited the BFOQ and granted summary judgment on the defense.

The problem, as the Fifth Circuit holds on appeal, is that the EEOC got ambushed by the district court’s summary-judgment briefing order. The EEOC briefed only the congruity issue, as directed, but the judge went on to rule (without input by the EEOC) that the underlying rationale for the FA age regulation was valid. In fact, the FAA had the retirement-age regulation under review and had already determined to liberalize it.

Holds the panel, “the EEOC was entitled to rely on the district court’s specific order that both parties restrict discovery and summary-judgment motions solely to the issue of congruity. The district court’s assumption concerning the rationale justifying the FAA’s regulation was beyond the scope of its scheduling order; and insofar as the court’s decision depended on this assumption, it amounted to a sua sponte grant of summary judgment on an issue and on grounds about which it did not give the EEOC proper notice.” So the case is remanded for further briefing and reconsideration.

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