The Ninth Circuit holds that the anti-retaliation provisions of § 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act apply to a school teacher who advocates for disabled students. The Second Circuit tosses summary judgment entered under the Title VII, ADEA, New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”) for an Extension Associate whose contract was not renewed, a case on its second trip on appeal after Leibowitz v. Cornell Univ., 445 F.3d 586 (2d Cir. 2006).
Barker v. Riverside County Office of Education, No. 07-56313 (9th Cir. Oct. 23, 2009): The plaintiff alleged that in retaliation for filing a complaint with the U.S. Department of Education Office for Civil Rights, she was subjected to the following conduct by her employer:
“1. intimidating Barker for filing the class discrimination complaint with the Office for Civil Rights; 2. failing to respond to Barker’s emails and phone calls; 3. excluding Barker from important staff meetings; 4. changing Barker’s work assignments to sites further from her home; 5. reducing Barker’s caseload even though the Riverside County Office of Education’s Alternative Education’s disabled student population increased; and 6. refusing to allow Barker to fill in for other teachers during their vacations. Barker further alleged that she was constructively terminated on August 1, 2006 because her supervisors subjected her to an intolerable work environment.”
While the district court granted a motion to dismss her action on the ground that Title II of the ADA (which applies to public entities) and the Rehabilitation Act, the Ninth Circuit reverses. It holds that the plain language of both statutes provides a remedy to retaliation.
The Rehabilitation Act, at 29 U.S.C. § 794a(2), expressly incorporates Title VI’s provisions, including the anti-retaliation regulation, 34 C.F.R. § 100.7(e) (“The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 . . . shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance . . . .”). The panel rejects the suggestion that person under the statute must be disabled to have standing to raise its protections: “Section 504 and its anti-retaliation provision use the all inclusive phrases ‘any person aggrieved’ and ‘any individual,’ and no language further limits who ‘any person aggrieved’ or ‘any individual’ may be. In particular, the statutes do not include language requiring such individuals to have disabilities in order to have standing.”
Likewise, the regulation interpreting the ADA anti-retaliation section, 28 C.F.R. § 35.134, uses the same broad formulation: “As in our analysis of section 504 of the Rehabilitation Act, the language employed in the anti-retaliation provisions of Title II does not evince a congressional intent to limit standing to individuals with disabilities. Instead, the use of the phrase ‘any individual’ and the absence of any language limiting standing to those with disabilities indicates Congress’s intent to grant standing under Title II ‘as broadly as is permitted by Article III of the Constitution'” (citation omitted).
Leibowitz v. Cornell University, No. 07-4567 (2d Cir. Oct. 23, 2009): The Second Circuit becomes the latest court to apply the McDonnell Douglas test to an ADEA claim in the teeth of Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), finding that the test is compatable with the “but-for” standard enunciated by the Supreme Court. Analyzing the employee’s Title VII, ADEA and state/local law claims under the same rubric, it reverses summary judgment, making the following holdings:
1. Non-renewal of a contract of employment on its face constitutes an adverse action, where an employee seeks renewal: “although our earlier opinion suggested that plaintiff was alleging more than non-renewal and that the denial of a position equivalent to tenure would constitute an adverse action, we did not foreclose the possibility that the non-renewal of an employment contract alone could constitute an adverse action. Indeed, we are persuaded that, where renewal is sought, it does. . . . Accordingly, we hold that where an employee seeks renewal of an employment contract, non-renewal of an employment contract constitutes an adverse employment action for purposes of Title VII and the ADEA. Although the parties focus on the terminology used with respect to the plaintiff, whether plaintiff was ‘laid off’ or ‘terminated,’ or her employment was ‘not renewed’ is not critical to the legal analysis; rather, she suffered an adverse employment action because she was denied the requested continued employment, regardless of the label.”
2. The employee presented, at the prima facie stage, sufficient evidence to make a genuine issue of material fact about the final element (an inference of discriminatory intent): “Here, plaintiff has presented evidence of the following: (1) during the relevant time period, in addition to plaintiff, defendants laid off five other employees, all of whom were females over the age of fifty; (2) defendants reassigned teaching duties once performed by plaintiff to at least three male instructors; and (3) defendants did not consider plaintiff for vacant positions that arose in 2002, prior to plaintiff’s departure, in the Long Island New York City offices, and attempted to fill one such position in the New York City office with a younger, male employee.”
3. Finally, the plaintiff also presented contested issues of material fact about pretext: “Plaintiff presented evidence before the district court from which it could be inferred that the budgetary concerns cited by defendants were a pretext for discrimination. First, plaintiff presented evidence that the budgetary concerns in early 2002 diminished over the 2002-2003 school year and by July 2003 the ILR school Extension Division was ‘in solid financial shape’ with a budget ‘in the black.’ Further, the ILR school Extension Division had the funding necessary to hire twelve new employees during the relevant time period. Although the Extension Division also laid off six employees during that time, plaintiff notes that all six were females over the age of fifty. Second, plaintiff submitted evidence that, although her requests for addition al travel funds were cited as a factor in the decision not to renew her contract, it was a common practice amongst male Extension Division faculty members to negotiate for compensation as she did, and that none of these employees’ contracts were terminated or not renewed. Plaintiff submits that, if her requests were so onerous that granting them made her continued employment unsustainable, defendants were free to simply deny them. Third, plaintiff pointed to evidence that she was not considered for any vacant positions before or after her non-renewal, despite the availability of such positions. In particular, there is undisputed evidence that the Director of the Long Island office wanted to hire plaintiff to work as a senior extension associate, offered her the position, and was fired for doing so.”