Berry v. Chicago Transit Authority, No. 07-2288 (7th Cir. Aug. 23, 2010); Jones v. Oklahoma City Public schools, No. 09-6108 (10th Cir. Aug. 24, 2010)

| Aug 23, 2010 | Daily Developments in EEO Law |

Two new opinions reminding us of two well-settled propositions in employment discrimination law: that a single act of sex harassment, if severe enough, may violate Title VII; and that ADEA plaintiffs do not have to meet a pretext-plus standard of proof to survive summary judgment.

Berry v. Chicago Transit Authority, No. 07-2288 (7th Cir. Aug. 23, 2010): The only woman carpenter on the job is (according to the summary judgment record) subjected to the following by a male co-worker (Carmichael), in the course of an altercation about the use of a picnic table:

“According to Berry, she . . . felt Carmichael grabbing her breasts and lifting her up from the bench. Holding her in the air, he rubbed her buttocks against the front of his body – from his chest to his penis-three times before bringing her to the ground with force. Berry landed off-balance, with only one leg on the ground, and says Carmichael then pushed her into a fence.”

Other witnesses claimed that Berry, not Carmichael, was the aggressor in the fight. The company sided with Carmichael. Summary judgment was granted on Berry’s sex harassment claim on the ground that “the CTA could not be found liable because it took prompt and reasonable steps to discover and rectify the sexual harassment.” The court also dismissed plaintiff’s sex discrimination and retaliation claims.

The panel reverses on the harassment count. It reaffirms that “a single act can create a hostile environment if
it is severe enough, and instances of uninvited physical contact with intimate parts of the body are among the most severe types of sexual harassment. Carmichael’s actions, as alleged by Berry, qualify undeniably as unwelcome sexual conduct that established a hostile environment” [citations omitted]. The panel also points to sufficient evidence in the record to support a possible finding that the agency was negligent in responding:

“The district court reasoned that [her manager] Gorman, as Berry’s supervisor, was not negligent because he promptly contacted [EEO investigator] Crigler to investigate the incident, and he advised Berry and Carmichael to stay away from each other to reduce tension. But the court once again mistakenly disregarded Berry’s contrary testimony merely because it was uncorroborated. She contends that, far from facilitating a genuine investigation into Carmichael’s conduct, Gorman sabotaged the investigation. Gorman’s eagerness to disregard the truth, she asserts, is reflected in his assurance that he didn’t care what really happened because Berry was ‘a pain in the butt,’ his prediction that she would lose her job if she filed charges, and
his promise that he was going to do ‘whatever it takes to protect CTA.'”

Jones v. Oklahoma City Public schools, No. 09-6108 (10th Cir. Aug. 24, 2010): The plaintiff alleged that at age 59, she was demoted to the position of elementary school principal, and replaced in her executive position by a 47-year-old. The district court held – under the burden-shifting method of proof under McDonnell Douglas – that the employee had made out a prima facie case of discrimination and “determined that a reasonable factfinder could conclude that OKC’s proffered reasons for Jones’ reassignment were inconsistent or unworthy of belief.” It nevertheless granted summary judgment, citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000), and holding that the “evidence for pretext was not ‘particularly strong’ and ‘a reasonable juror could very well find no inconsistencies in [OKC’s] position.’ Although the court acknowledged that OKC leadership had made age-related comments, it faulted Jones for not providing any
‘addition al evidence’ to show that age played a role in the reassignment decision.”

The Tenth Circuit reverses. The panel holds that the district court’s conclusions in plaintiff’s favor on each stage of the burden-shifting proof model precluded summary judgment. It finds that the district court, instead of faithfully following McDonnell Douglas, applied an erroneous “pretext-plus” method of proof. “Rather than properly applying Reeves, the district court erroneously held Jones to the discredited ‘pretext plus’ standard. The court faulted Jones for not presenting ‘addition al evidence’ that age was a determining factor in her reassignment. But after showing that OKC’s reasons for her transfer were pretextual, Jones was under no
obligation to provide addition al evidence of age discrimination.”

The panel also holds that the intervening decision in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), did not compel another outcome. “OKC argues that in mandating but-for causation, Gross established that ‘age must have been the only factor’ in the employer’s decision-making process. . . . [But] an employer may be held liable under the ADEA if other factors contributed to its taking an adverse action, as long as ‘age was the factor that made a difference.’ [Citation omitted.] . . . Gross does not disturb longstanding Tenth Circuit precedent by placing a heightened evidentiary requirement on ADEA plaintiffs to prove that age was the sole cause of the adverse employment action.” Finally, ‘[a]lthough we recognize that Gross created some uncertainty regarding burden shifting in the ADEA context, we conclude that it does not preclude our continued application of McDonnell Douglas to ADEA claims.”

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