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March 2012 Archives

Turner v. Kansas City Southern Ry. Co., No. 09-30558 (5th Cir. Mar. 23, 2012)

A reminder from the Fifth Circuit that, as long as we have McDonnell Douglas and Burdine, the employer in a disparate treatment race discrimination case must - in response to employee's presentation of a prima facie case - produce admissible evidence of a legitimate, non-discriminatory reason for taking an adverse action (firing, demotion, etc.). An employer that defaults on this burden of production buys itself a trial, as the defendant discovers here (in an action brought by the employees, and EEOC as intervenor). Judge Owen dissents.

Savani v. Washington Safety Mgt. Solutions, No. 11-1206 (4th Cir. Mar. 20, 2012)

ERISA cases often turn on whether a plan administrator's interpretation of ambiguous plan language is reasonable (i.e., not an "abuse of discretion"). But in this non-precedential decision, a Fourth Circuit panel (2-1) tosses out a judgment in favor of the plan in the anti-cutback case - on the ground that only one interpretation of the plan is reasonable and favors the participants. It all started when the plan administrator demanded repayment of nearly 18 months' worth of benefits by a participant who (supposedly) was not eligible.

King v. Acosta Sales and Marketing, Inc., No. 11-3617 (7th Cir. Mar. 13, 2012)

Plaintiffs lately seem to be on a tear in the Seventh Circuit. Here's another reversal of summary judgment where the district court judge misapplied the McDonnell Douglas test to an Equal Pay Act case, earning the storied burden-shifting method of proof yet another  swift kick by a Seventh Circuit panel.

Dulaney v. Packaging Corp. of America, No. 10-2316 (4th Cir. Mar. 12, 2012)

The employer's affirmative defense to sexual harassment claims - recognized by the Supreme Court in Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) - does not apply if a supervisor's harassment culminates in a "tangible employment action," defined as a significant adverse change in employment status. In a rare court of appeals opinion presenting this issue, the Fourth Circuit reverses summary judgment and holds that to compel an employee either to sign a severance agreement or be fired may constitute such a tangible employment action.

Nassar v. Univ. of Texas Southwestern Med. Ctr., No. 11-10338 (5th Cir. Mar 8, 2012); Cook v. IPC Int'l Corp., No. 11-2502 (7th Cir. Mar. 8, 2012)

Two appeals reviewing jury trials in Title VII cases came down today. In the first, the plaintiff - a physician - wins two claims at trial (retaliation and constructive discharge, centered on claims of racial discrimination), but loses the latter claim on appeal, necessitating a remand for recalculation of damages. In the second, the plaintiff lost her sex discrimination and retaliation trial, but the Seventh Circuit vacates and remands, criticizing the unnecessarily complicated and inaccurate jury verdict and instruction forms.

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