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July 2011 Archives

Burnell v. Gates Rubber Co., No. 10-3490 (7th Cir. July 27, 2011)

In Title VII retaliation actions, courts often focus on "temporal proximity" - the closeness in time between the protected activity and the employer retaliation - as circumstantial evidence of causation. But this shorthand can be misleading. In this case, the Seventh Circuit reminds us that an employer may be held liable under this provision even where there has been a substantial gap between a complaint of race discrimination and the employee's termination. Here, the manager who brought down the axe down on the employee believed that the employee had raised a fresh complaint, even though the record was otherwise.

Bergerson v. Office of Mental Health, No. 10-1040 (2d Cir. July 21, 2011)

Here's a lesson that some must re-learn, even twenty years after the passage of the 1991 Civil Rights Act that reformed the remedial provisions of Title VII: compensatory damages are an entirely separate kind of relief from make-whole back- and front-pay. The Second Circuit reverses a judge's order denying make-whole relief on the ground that the jury award of $300,000 in compensatory damages (for pain, suffering and loss of reputation) was enough.

Benuzzi v. Board of Education of the City of Chicago, No. 10-3021 (7th Cir. July 21, 2011)

Why on earth would an employer defending a federal Title VII sex discrimination lawsuit wait until the day after the plaintiff sits for her deposition to serve her with a Notice of Disciplinary Action, referring to events going back four months? The Seventh Circuit finds direct evidence that this adverse action was motivated by retaliation, reverses summary judgment and sends the plaintiff's retaliation claim back for a trial.

Brown v. Continental Airlines, Inc., No. 10-20015 (5th Cir. July 18, 2011)

A truly remarkable ERISA decision - the Fifth Circuit affirms the primacy of a qualified domestic relations order (QDRO), and affirms a judgment holding that the plan administrator must accept them, even where (as here) the plan had cause to believe that the divorce was a mere ploy by the married couple to lock in the lump-sum payment of a pension benefit.

Black v. Pan American Laboratories, No. 09-51092 (5th Cir. July 11, 2011)

A Fifth Circuit panel unanimously affirms a jury verdict for a woman sales representative who suffered discrimination in compensation and termination, in violation of Title VII and Texas state law. The panel divides, though, on the question of the appropriate back pay remedy. It also divides on the question of how to apply the compensatory and punitive damage caps in a multiclaim case under 42 U.S.C. § 1981a(b)

Valle-Arce v. Puerto Rico Ports Authority, No. 10-1102 (1st Cir. July 8, 2011)

One of the critical stages in many disability discrimination cases is when the employee gets a new manager or supervisor, who does not understand - or is insensitive to - an accommodation formerly extended to a person with a disability. As this First Circuit case reveals, a botched switch in the gears can create a triable issue of fact for a jury about whether the employee was denied reasonable accommodations.

Breeden v. Novartis Pharmaceuticals Corp., No. 10-7073 (D.C. Cir. July 8, 2011)

After a fired employee wins a $289,669 jury verdict in an Family and Medical Leave Act (FMLA) retaliation case, the district court takes it away on a motion for judgment as a matter of law, on the ground that the plaintiff did not present sufficient evidence that the claimed retaliation (reshuffling her accounts) actually caused her termination three years later. The D.C. Circuit affirms. The case presents a cautionary tale for a plaintiff who claims that a loss/reassignment of accounts caused further, more serious harm down the road.

Jock v. Sterling Jewelers Inc., No. 10-3247 (2d Cir. July 1, 2011)

Employers like mandatory arbitration policies, and avoidance of judicial review - until they don't. Here's a case from the Second Circuit (decided 2-1) that affirms an arbitrator's interlocutory decision to allow a putative Title VII pay and promotion class action, over the employer's objection that it did not consent to such a procedure.

Smith v. Lockheed-Martin Corp., No. 09-15428 (11th Cir. June 30, 2011)

An employer can have the best anti-harassment policy that money can buy, at least on paper, but if it enforces the policy unevenly, the result can be even more legal trouble.

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