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December 2006

| Dec 18, 2006 | Daily Developments in EEO Law |

Daily Developments in EEO Law
by Paul Mollica © 2006

Friday, December 22, 2006

Every now and then, a public employer gets nabbed for enacting a facially age discriminatory policy, such as (most recently) EEOC v. Jefferson County Sheriff’s Dept., 467 F.3d 571, 99 FEP 180 (6th Cir. 2006) (en banc). In EEOC v. City of Independence, No. 05-4489 (8th Cir. Dec. 22, 2006), the city adopted a policy that allowed employees to bank unused leave time on behalf of disadvantaged co-workers who exhausted their allocated leave and needed additional time off (“Leave Donation Program”). This benevolence did not extend to employees “eligible for regular retirement,” i.e., those age 60 or older with over with five or more years of service. And so the complainant Richard Hopkins, who was over 60 and had eight years of service with the city, could not withdraw leave time from the program to recover from complications posed by tachycardia (a form of heart disease). The record also constrained age-discriminatory remarks directed at Hopkins (“I didn’t know that you were that old”; “Well, you’re of retirement age, Richard, you’re over 60”).

The EEOC challenged application of the policy to Hopkins. The district court granted summary judgment on the framework that the policy — based on retirement eligibility, not age per se — merely “correlated” with age. But the Eighth Circuit reverses, holding that “[b]ased on the direct evidence that the city’s Human Resources Administrator and other personnel decision makers said the disqualification was because of age and acted accordingly, Hopkins raises a genuine issue of material fact as to what the employer supposed about age. In this case, . . . the discriminatory acts were not ‘isolated’ but were the standard operating procedure for the Leave Donation Program.” The court, for good measure, finds the above comments to be “direct evidence” of age discrimination. The panel does, nevertheless, affirm summary judgment on the constructive discharge claim.

Bless the EEOC for bringing this case which, given the exasperatingly limited remedies allowed under the ADEA, is probably worth in the single-thousands of dollars on remand.

In the Sixth Circuit, the court affirms enforcement of a release of age discrimination and other claims by a former employee (in a declaratory judgment action by the employer) — The Kellogg Co. v. Sabhlok, No. 05-2626 (6th Cir. Dec. 22, 2006) — a lawsuit triggered by demand letters sent by the employee’s counsel. The district court and the Sixth Circuit, applying Michigan law (oddly disregarding the federal Older Workers Benefit Protection Act (OWBPA), which governs the enforceability of waivers of age claims), held that the employee’s post-release attempts to seek rehire by Kellogg were covered by a form separation agreement:

“We agree with the district court that the issue turns on whether the failure to ‘rehire’ Sabhlok during the retention period provided him with a new and discrete claim of discrimination or was merely an attempt to resurrect age discrimination claims for which he was paid to release. Most tellingly, Sabhlok’s proposed complaint alleged that his ‘age was at least one factor that made a difference in Kellogg’s decision to terminate [him] from his position of Vice President of the International Research and Development Group, and not transfer [him] to any of the other positions given to younger, less experienced and lower paid Kellogg employees.’ Also, it was alleged with respect to two of those positions that the younger employee was given virtually all of his duties and responsibilities ‘and essentially replaced [him].’ Here, the failure to ‘rehire’ Sahblok into a permanent position during the period between the notice of his termination and his last day of work did not arise separately from the decision to terminate his employment rather than offering him a different permanent position.”

The court cites Adams v. Philip Morris, Inc., 67 F.3d 580, 585 (6th Cir. 1995) (employee may not prospectively waive rights under ADEA or Title VII), but distinguishes it (sort of) by finding that the re-hire claims are part and parcel of the wrongful termination claim that the employee waived. Yet under the OWBPA, it’s a squeaker whether this broad construction of the release would pass the “knowing and voluntary” standard. The only good news for the employee is that the court found that his demand letters and counter-claim in the declaratory-judgment action did not trigger a loser-pays attorneys’ fee clause in the agreement.

Thursday, December 21, 2006

As Santa dumps out his bag of EEO year-end leftovers. . .

Four plaintiffs get lumps of coal instead of back-pay relief, because the Court holds that they slept on their rights under a 1985 federal Title VII consent decree: Andrews v. Roadway Express Inc., No. 05-51772 (5th Cir. Dec. 19, 2006). The court holds that Texas law time limits apply to a writ of execution under Fed. R. Civ. P. 69(a) (incorporating the “practice and procedure of the state in which the district court is held”) and that the Consent Decree, though formally “retainin[ing the court’s] jurisdiction” to enforce the Decree, did not direct otherwise. And the employees’ time just plumb ran out because “[under Texas law, appellants had ten years to execute their judgment and two years after that to revive and execute it. Appellants did not attempt to collect from the defendant until seventeen years after the judgment became final on appeal.” Finally, the panel rejects the suggestion that the consent decree was too indefinite under Texas law to support a writ of execution and that any attempt to comply with local procedures would have been futile.

Jean McGowen, a jail guard in Oklahoma, claims that her suspension without pay — after a prisoner committed suicide on her watch — was motivated by retaliation for her cooperation in a co-worker’s Title VII suit. But the Tenth Circuit affirms summary judgment against her anyway. McGowan v. City of Eufala, No. 04-7083 (10th Cir. Dec. 19, 2006). The court also holds that the refusal to grant a shift change or to stem alleged harassment did not meet the standard of “adverse action” laid out under Burlington Northern v. White, 126 S. Ct. 2405 (2006), while the work-related reasons for her suspension were not pretextual. Most intriguing, and a bit unsettling, was the suggestion that the employer could separate the original Title VII complainant (Ms. Lollis) and Ms. McGowen — on advice of city counsel — by keeping them on different shifts, because of the city’s interest in defending against the original Title VII lawsuit: “the City was not required to compromise its defense of Lollis’s claims simply to accommodate McGowan’s subjective desire for a change in shifts. In sum, this record does not support a conclusion that the City’s reason for denying McGowan a shift change was pretextual. The City’s temporary refusal to grant McGowan’s request for a shift change was perhaps reactive, but cannot be said on this record to have been retaliatory.” It takes a subtle mind to parse out the reason for the shift change (because of the lawsuit) from the motive (to deter and punish the employee for cooperating). How many Christmas angels can dance on the head of a pin?

Finally, the Third Circuit slips a goodie in Judy Scheidemantle’ stocking — a chance to try her Title VII hiring case against Slippery Rock U: Scheidemantle v. Slippery Rock University, No. 05-3850 (3d Cir. Dec. 19, 2006). The district court mechanically applied the McDonnell Douglas test to bar a hiring claim because the female applicant for a locksmith’s position lacked the posted experience and credentials and thus supposedly did not meet the employer’s “legitimate expectations.” Such a finding cannot stand, the Third Circuit holds, when male candidates were waved through without the same qualifications. “If an employer could, with impunity, appeal to objective qualifications to defeat any female job applicant’s challenge to its hire of an objectively unqualified male in her place, discrimination law would be reduced to bark with no bite. Title VII demands that employers apply the same standards for hiring women and other protected minorities that they apply to all other applicants. “

Monday, December 18, 2006

On September 11, 2001, Susan Asmo discovered that she was pregnant with twins. Then, owing to a post 9/11 slowdown in the economy and her employer Keane Inc’s merger with a second enterprise, Ms. Asmo’s boss (Mr. Santoro) eliminated her position as redundant. According to the summary judgment record, the decision came within two months of Ms. Asmo announcing her pregnancy at work. That news was welcomed joyously by everyone on Ms. Asmo’s team except (of course) the boss, Mr. Santoro, who maintained silence for weeks afterwards. The final RIF decision came down to the plaintiff and another (non-pregnant) woman of roughly plaintiff’s tenure. The principal reason assigned at the time of the termination (Ms Asmo’s relatively high salary) was apparently repudiated by Mr. Santoro during his deposition.

Does this record support a genuine issue of material fact for trial of a Title VII pregnancy discrimination case? The panel majority in Asmo v. Keane, Inc., No. 05-3818 (6th Cir. Dec. 18, 2006) says “yes.” The majority applies the Sixth Circuit’s modified, indirect prima facie test for a reduction-in-force (RIF) — i.e., “additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.” Borrowing from the parallel Title VII retaliation case law, the majority holds that the nearly two-month turnaround between the pregnancy announcement and the termination either (1) substituted for the additional evidence by establishing “temporal proximity,” or (2) furnished circumstantial (“indirect”) evidence of intent to discriminate. (The dissent would have stopped here, finding the employee didn’t make out a prima facie case.)

The majority also held that there was a genuine issue of material fact about pretext: (1) the evidence of Mr. Santoro’s failure to comment on the plaintiff’s pregnancy for two full months (despite regular contact on the telephone) which supplies an inference of discriminatory animus; (2) a comment by the Regional Vice President that he understood Ms. Asmo needed to seek legal counsel, telling her to “do what she needed to do”; and (3) that the employer offered different arrays of reasons for its RIF decision to the employee, to the state civil rights agency and during the litigation, some of which were factually dubious. Pulling all of this together was evidence that the employer’s decision seem to have been made before Mr. Santoro began his investigation into which employee to let go, based on depositions of vice presidents who testified about Mr. Santoro’s selective questioning about their future personnel needs.

Meanwhile in the Ninth Circuit, a warning to employees seeking injunctive relief in an employment case that you may have to spell it out in the complaint. In Walsh v. Nevada Dep’t of Human Resources, No. 04-17440 (9th Cir. Dec. 18, 2006), a Title I ADA case against a state agency, the court held that the employee’s monetary claim was barred by immunity (Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001)), while her injunctive claim was not preserved in the complaint. “In her prayer for relief, Walsh makes an explicit claim for “injunctive relief to force the defendant to adopt and enforce lawful policies regarding discrimination based on disability.” This statement clearly fulfills Rule 8(a)(3)’s requirement of a ‘demand for judgment.’ Nonetheless, Walsh’s single reference to injunctive relief is insufficient because it is unsupported by any facts or allegations regarding the Department’s failure to adopt or enforce discrimination policies. Walsh made no assertions that the discrimination she suffered was caused by the failure to enforce a state policy, or that such discrimination could be cured by an official policy.” No mention of Fed. R. Civ. P. 54(c) in the opinion (“every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings”).

Friday, December 15, 2006

After a week-long drought of EEO cases, the D.C. Circuit obliges us with two race, sex and age discrimination decisions concerning federal employees, and a mandamus action filed by an employer.

The mandamus petition, Banks v. Office of the Senate Sergeant-at-Arms and Doorkeeper of the U.S. Senate (SAA), No. 05-5322 (D.C. Cir. Dec. 15, 2006), concerned a sanction entered by the district court against the employer, after (over a several-month period) it failed to produce requested documents claimed as privileged, move for a protective order or furnish a Fed. R. Civ. P. 26(b)(5) log. (The Senate office is subject to suit Congressional Accountability Act of 1995, 2 U.S.C. §§ 1301-1438 .) The apparently unaccounted-for delay resulted in an award of attorneys’ fees to the plaintiff under Fed. R. Civ. P. 37 for filing a motion to compel. With the case still progressing below, the SAA sought to appeal the sanction. But the D.C. Circuit rebuffs the employer, imposing the final judgment rule to bar an interlocutory appeal, holding that the issue did not meet the conditions for the collateral order doctrine and finding mandamus improvident owing to an adequate post-judgment remedy (i.e., a direct appeal).

All of this is well-settled law, but the intriguing nugget here is the SAA’s suggestion that it enjoys sovereign immunity from monetary sanctions. The panel refrains from addressing the merits of the argument, but observes: “Because an alleged right to avoid discovery sanctions is not forever extinguished once fees are paid, the SAA’s sovereign immunity from discovery sanctions, if it exists at all, does not depend on our immediate review. The district court’s decision that the SAA has no sovereign immunity from Rule 37 sanctions, though temporarily unfavorable to the SAA, is not permanently unreviewable and therefore causes no irreparable harm to the SAA, nor any threat to the public interest. If harm is done to the SAA’s alleged interest by the district court’s order, it may be remedied on appeal after final judgment.” I wonder, though, whether the alternative to monetary sanctions (against which the defendant claims immunity) would be a prospective ruling excluding the SAA’s evidence. In which case, it is the employee who suffers the irreparable loss if the sanctions are eventually reversed.

The two discrimination appeals, both from summary judgment, are pretty ordinary by comparison. In Price v. Bernanke, No. 05-5361 (D.C. Cir. Dec. 15, 2006), most of the appeal was disposed of (against the employee, natch) in an unpublished order, but the panel reserved its ruling on an ADEA retaliation claim for this reported opinion. In essence, the employee waited ten months to file his lawsuit after receiving a final agency decision letter that on its face allows only 90 days for the filing of a civil action. Under Title VII, the 90-day period is expressly provided by the statute, and while the ADEA lacks a limitations provision applicable to federal employees, by regulation the EEOC imposes a 90-day period as well (29 C.F.R. § 1614.407(c)). The employer argued for the 90-day period. The employee pointed the panel to a possible six-year period under 28 U.S.C. § 2401 (non-tort civil claims against the U.S.); the four-year period under the catch-all, 28 U.S.C. § 1658; and a two-year limitations period of the FLSA, 29 U.S.C. § 255. The panel goes with the 90-day period, creating a split with the Ninth Circuit (which, prior to the 1991 Civil Rights Act, adopted the six-year period in Lubniewski v. Lehman , 891 F.2d 216, 221 (9th Cir. 1989)).

The third appeal also concerned the 90-day period, Colbert v. Potter, No. 05-5330 (D.C. Cir. Dec. 15, 2006), specifically when the limitations period accrued. The panel devotes 18 pages (and a separate concurring opinion) to address the significance of a date-stamped Domestic Return Receipt, bearing the employee’s counsel’s signature and showing delivery of the final agency decision 92 days prior to the filing of the action. The employee sought to contest the date-stamp, hinging its argument on the failure of the U.S. Postal Service (coincidentally, the employer in this case) to produce a complete copy of the receipt. Given leave on appeal to supplement the record, the Postal Service submitted the entire original document, which left no doubt about the date of delivery as stamped. Although the panel majority and concurring judge disagree about the propriety of receiving original evidence on appeal, both wind up in the same place — the uncontested evidence established that the complaint was filed two days late.

Friday, December 8, 2006

Next week, the BNA Employment Discrimination Report will be carrying a short piece they commissioned me to write (“More Federal Circuit Splits in the EEO Field”). One of the issues I mentioned was the disagreement about whether an employer’s “legitimate job expectations” for an employee constitutes a prima facie element of the McDonnell Douglas burden-shifting method of proof or simply merges with pretext. Though most circuits permit consideration of the employer’s evaluation of the employee only after the prima facie stage, the Fourth Circuit allows the issue to be presented at the threshold (Warch v. Ohio Cas. Ins. Co., 435 F.3d 510 (6th Cir. 2006)).

After the article was already in galleys, the Eighth Circuit handed down Arnold v. Nursing and Rehab. Center, No. 05-4055 (8th Cir. Dec. 8, 2006), joining the majority of circuits on this issue: “Arnold argues that the district court erred by requiring her to show that she performed her job satisfactorily instead of merely requiring her to show that she was qualified. We agree. By requiring Arnold to prove that she executed her duties satisfactorily, the district court ‘raised the standard set by the Supreme Court for what suffices to show qualification.’ Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2nd Cir. 2001), cert. denied, 534 U.S. 951 (2001).” Thus the fact that she was duly licensed and had a history of acceptable performance was sufficient to make out a prima facie case. The ruling does not help Nurse Arnold much, though, as the panel affirms summary judgment on the alternative ground that the employee failed to present a genuine issue of material fact that the proffered reason for her termination (abusing a patient) was pretextual.

The issue also got a mention, albeit in passing, in Timmons v. General Cotors Corp., No. 05-3258 (7th Cir. Dec. 7, 2006) (available at the Seventh Circuit website), in which it held that there was no genuine issue of material fact regarding whether the employee was meeting GM’s legitimate expectations: “First, the record establishes that Timmons was not meeting GM’s legitimate expectations. There is evidence that Timmons was not at work and in the field when required, and also that he failed to return several phone calls to customers, skipped required meetings, and had his assistant doing some of his job duties. Timmons disputes some-but not all-of this evidence. For instance, he challenges whether his assistant was doing parts of his job, and he says he returned all his phone calls. Still, he disputes neither his absences from the field and the office nor the skipped meetings. Even if we accept, as Timmons urges, that his past performance reviews establish his prior satisfactory performance, he has not disputed that at the time he was placed on leave, he was failing to meet GM’s legitimate expectations in the foregoing respects.”

Wednesday, December 6, 2006

Two fairly ordinary decisions reported today deliver a couple of jolts worth conducting along.

In Gordon v. Shafer Contracting Co., Inc., No. 06-1963 (8th Cir. Dec. 6, 2006), the opinion (authored by the legendary Judge Lay) affirms in fewer than seven pages a summary judgment on a variety of race-based discrimination claims. On one such claim, race harassment by a supervisor (who greeted the plaintiff with racial slurs twice to three times a week), the employer is excused by a holding that the employer maintained an effective policy to correct and prevent harassment that the employee unreasonably failed to use. One eye-catching detail: the employee manual “identifies three company officials to whom harassment can be reported and provides their work and home telephone numbers” (emphasis added). Here’s a company that takes harassment seriously enough that it requires its management to be on call 24 hours a day! Wow–that ought to be standard for all employers!

In Merillat v. Metal Spinners, Inc., No. 05-4053 (7th Cir. Dec. 6, 2006), a heftier 24-page opinion discharges various sex and age discrimination claims, also dismissed on summary judgment. Dropped into a footnote, though, the panel slips in an unexpected good word (for plaintiffs) about the Equal Pay Act. The Seventh Circuit has generally endorsed reliance on “market forces” as a “factor other than sex,” a defense under the EPA, most recently trumpeted in Wernsing v. Dep’t of Human Services, 427 F.3d 466, 96 FEP 1153 (7th Cir. 2005). But without cross-citing to last year’s decision, the panel here cautions against undue reliance on that argument.

“We recognize that we must be cautious when analyzing an employer’s claim that ‘market forces’ justify a higher salary, as companies may use such a theory ‘to justify lower wages for female employees simply because the market might bear such wages.’ Taylor v. White, 321 F.3d 710, 718 (8th Cir. 2003); see also Corning Glass Works v. Brennan, 417 U.S. 188, 205 (1974) (finding a violation of the EPA when a company ‘took advantage’ of a ‘job market in which [the employer] could pay women less than men for the same work’); Siler-Khodr v. Univ. of Texas Health Sci., 261 F.3d 542, 549 (5th Cir. 2001) (finding an employer’s market forces argument ‘not tenable’ when it ‘simply perpetuates the discrimination that Congress wanted to alleviate when it enacted the EPA’).”

 

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