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McInerney v. United Air Lines, Inc., No. 09-1423 (10th Cir. Apr. 11, 2011)

A split jury verdict, of a kind now common in Title VII cases, is affirmed in full (in a non-precedential decision) by a 2-1 panel of the Tenth Circuit. The jury rejected the employee's gender discrimination claim, while awarding her $3 million in compensatory damages on her retaliation claim. The district court capped the award at $300,000, as required by 42 U.S.C. § 1981a(b)(3), but added $89,877 in back pay, and the Tenth Circuit remands for an award of attorneys' fees.

McInerney v. United Air Lines, Inc., No. 09-1423 (10th Cir. Apr. 11, 2011): The plaintiff was a ramp supervisor,  having charge of loading, fueling and icing of planes - a tough, physical job. In 2005, she was pregnant, suffering the ill-effects of a hot summer, and seeking to transfer to off-ramp work on doctor's advice. She was never allowed to change jobs, though. Her supervisor (named Mortimer) is described as having "treated male employees better than female employees," noting that "he raised his voice when speaking with, and was generally dismissive of, female employees. He was heard on two occasions to remark that women belonged at 'home, barefoot and pregnant.'" 

By late summer 2005, McInerney commenced FMLA leave, she delivered prematurely and suffered health setbacks of her own. By the end of 2005, McInerney contacted an HR employee, Jeanne Nelli, both to seek an unpaid leave extension and to complain that she suffered sex and pregnancy discrimination (though Nelli denied hearing the latter). Though advised at first that an extension should not be a problem, as the date neared McInerney learned (by way of Nelli) that Mortimer denied the request. Plaintiff did not return to work.

At trial, the jury found in United's favor on the Title VII sex discrimination claim, but in McInerney's favor on retaliation.

In an unsigned opinion, Chief Judge McKay and Judge Briscoe affirms the judgment for plaintiff in full. United's leading argument was that it did not take any adverse action against the plaintiff, because she resigned voluntarily. The panel majority holds that the jury could have found otherwise:

"There is no evidence that McInerney told her employer that she was resigning. The evidence showed that McInerney did not intend to resign, and that she desperately wanted to keep working at United. . . . This not a case where an employee simply abandoned her position without any notice to or communication with her employer. Rather, there was ample testimony at trial that, after initially extending her return date, Nelli decided to end McInerney's employment by 'deeming' that McInerney had resigned."

The panel majority also holds that the record supported an inference that Nelli had the discretion to extend McInerney's leave but chose not to do so. 

Likewise, the majority holds that the record supports an inference of a retaliatory intent: that the HR person, aware of the discrimination complaint, failed to act either on the complaint or on the plaintiff's request for an extension of her leave of absence:

"According to McInerney, this complaint was never investigated, and by March 31, 2006, all remaining leave options were rejected and she was terminated. The timing of these events could reasonably give rise to an inference of a retaliatory motive. Nelli admitted that she did not pursue any investigation other than attempting to speak with McInerney. JA at 2241. For example, she did not question Mortimer. Id. Nelli also admitted that she was 'wearing two hats,' in that she terminated McInerney at the same time she was supposed to be investigating McInerney's complaint. Id. at 2259. She acknowledged that her obligation to investigate the discrimination ended once McInerney was terminated."

The panel also holds that the jury instruction (which referred only to termination, not to voluntary resignation) was not erroneous, and that any error in the jury instruction on similarly-situated employees was harmless, because the verdict could be support without reference to the circumstances of other employees.

Regarding the remedy, the panel majority affirms the district court's denial of front pay (plaintiff's cross-appeal), but finds that the maximum $300,000 compensatory award could be upheld on the record of extreme emotional distress:

"The emotional toll of McInerney's termination was substantial not only because it ended her career as a management veteran with a company for whom she had worked since she was 23 years old, JA at 1818, but also because it had a stressful impact on her already difficult situation which involved caring for her prematurely-born son who was in critical condition, and recovering from her own pregnancy-related complications."

Because the verdict reached the $300,000 cap, the panel concludes that plaintiff's challenge to the denial of a punitive-damage instruction is moot, because she received all of the legal relief she could win under Title VII. Finally, the panel remands for an award of attorneys' fees for successfully prosecuting the appeal.

Judge Hartz, dissenting, would have reversed and ordered entry of a judgment as a matter of law for United, concluding that McInerney - on the record facts - abandoned her job by overstaying her leave, and was not terminated.

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