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December 2007

| Dec 18, 2007 | Daily Developments in EEO Law |

Daily Developments in EEO Law by Paul Mollica ©2007

Monday, December 31, 2007

Over a year ago, in the October 10, 2006 entry of this blog, I reported on the original Ninth Circuit panel opinion in Bates v. UPS, No. 04-17295, in which Judge Marsha Berzon (joined by Senior Judge Betty Fletcher and visiting Senior Judge John Gibson of the Eighth Circuit) affirmed a liability finding against UPS — and entry of injunctive relief — in a class action ADA case, holding that the defendant failed in its burden to demonstrate that its categorical disqualification of deaf drivers for a class of light trucks was job-related and a business necessity.

Now comes the next act — en banc reversal in the now-eight-year-old case, Bates v. UPS, No. 04-17295 (9th Cir. Dec. 28, 2007), vacating the judgment and remanding to give the defendant an opportunity to reargue its defense under a newly-constructed framework.

The case involves a challenge to a “forced whisper” hearing standard applied by UPS as a qualification for all of its drivers. The U.S. Department of Transportation sets such a standard for drivers of vehicles with a gross vehicle weight rating (GVWR) of 10,001 or more pounds (49 C.F.R. § 391.41(b)(11)). The DOT hearing standard requires that the driver:

“[f]irst perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5-1951.”

The class challenged UPS’s imposition of the same standard on drivers of lighter trucks, termed “package cars,” not subject to the DOT regulation. (According to the majority, as of the time of trial, “UPS’s fleet contained 65,198 vehicles, of which 5,902 vehicles had a GVWR of less than 10,001 pounds.”)

The district court conducted a bench trial and found — applying a pattern-or-practice methodology borrowed from Title VII and Teamsters v. United States, 431 U.S. 324 (1977) — that UPS failed to support its “forced whisper” policy under the ADA’s § 12112(b)(6) qualification standards. The district court found, in particular, that UPS failed to prove a business necessity for applying the policy under 42 U.S.C. § 12113(a). The judge enjoined UPS to “perform an individualized assessment” of applicants who otherwise meet the threshold qualifications for safe driving. The original panel opinion substantially affirmed that decision.

The en banc court first grappled with an Article III standing complication: the lead plaintiff (Babaranti Oloyede) had, since the certification of the class, accepted reassignment into a position that (under a collective bargaining agreement) barred him from bidding on a package-car driving position. The court sliced through this knot elegantly. Citing Franks v. Bowman Transportation Company, 424 U.S. 747 (1976), the court held that “even if UPS is correct that Oloyede’s claim is either not redressable or is moot because he is no longer in a driver eligible position, questions we do not decide, the remaining class members are not foreclosed from attaining relief since the class was long ago duly certified.”

The en banc court (as well as the original panel) likewise held that Teamsters presented the wrong model to examine a facial classification such as a hearing standard. “A burden-shifting protocol is, however, unnecessary in this circumstance. The fact to be uncovered by such a protocol — whether the employer made an employment decision on a proscribed basis (here, disability in the form of hearing impairment) — is not in dispute.”

These preliminaries out of the way, the en banc court went to work on construing the interrelationship between the ADA requirement that the employee be a “qualified individual” and what the ADA means by “discrimination.” The court rejected UPS’s suggestion that hard-of-hearing drivers were not qualified (i.e. could not meet the “essential functions” of the job) because they could not meet the company’s hearing qualification standard. The court held that this argument placed the focus on the wrong actor:

“Although the plaintiff bears the ultimate burden of persuading the fact finder that he can perform the job’s essential functions, we agree with the Eighth Circuit’s approach that ‘an employer who disputes the plaintiff’s claim that he can perform the essential functions must put forth evidence establishing those functions.’ EEOC v. Wal-Mart, 477 F.3d 561, 568 (8th Cir. 2007). The genesis of this rule is the recognition that ‘much of the information which determines those essential functions lies uniquely with the employer.” Benson v. Nw. Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir. 1995).”

The en banc court also held that “UPS has not shown that the district court’s determination that DOT certification is not an essential job function was clearly erroneous.” Up to this point, the plaintiff class scored a lot of points.

But getting to the nut of the case, the en banc court held that the district court erroneously analyzed the business necessity defense without first weighing whether the plaintiffs demonstrated that they were qualified to safely drive the package cars:

“Because UPS has linked hearing with safe driving, UPS bears the burden to prove that nexus as part of its defense to use of the hearing qualification standard. The employees, however, bear the ultimate burden to show that they are qualified to perform the essential function of safely driving a package car. In so doing, [plaintiffs] need not disprove the validity of the hearing standard, but must demonstrate their safe driving ability vis-a-vis package cars. The inquiry is not whether [plaintiffs] are capable of safely driving their personal cars, but rather whether they can drive the package cars at issue in this litigation. The district court did not make a finding with respect to plaintiffs’ ability to drive package cars safely. Merely finding an absence of evidence with respect to driving a package car is insufficient. In short, [plaintiffs] bear the burden of proving that they are qualified individuals with disabilities. They must show that they can perform the essential job function of safely driving package cars. Only if they meet this burden does the question become whether the qualification standard used by the employer satisfies the business necessity defense.”

On remand, the plaitiffs’ burden would be as follows: “an employee who shows that he meets the basic qualifications for the package-car driver position (seniority, twenty-one years of age, and holding a valid driver’s license) and can drive a package car safely, including having a clean driving record and passing the driving test, is an otherwise qualified individual.” The district court was also directed to determine whether any reasonable accommodation would be necessary for plaintiffs to meet those qualifications.

The court then held that, assuming the employees made out these preconditions under the ADA, the district court’s finding of “discrimination” under the ADA could stand: “The district court found, and UPS does not contest, that UPS applies a qualification standard that has the effect of discriminating on the basis of disability and/or screens out the class of employees who cannot pass the DOT hearing standard. See 42 U.S.C. § 12112(b)(6). Such discrimination violates the ADA unless UPS can prove a valid defense to its use of the DOT hearing standard.”

The court then set the parameters for the “business necessity” defense under the circumstances of this case and, in particular, the burden to demonstrate that an employer’s safety standard is job-related:

“[when an employer asserts a blanket safety-based qualification standard-beyond the essential job function — that is not mandated by law and that qualification standard screens out or tends to screen out an individual with a disability, the employer — not the employee — bears the burden of showing that the higher qualification standard is job-related.”

Thus, “[when every person excluded by the qualification standard is a member of a protected class — that is, disabled persons — an employer must demonstrate a predictive or significant correlation between the qualification and performance of the job’s essential functions.”

In so ruling, the en banc court overruled a prior decision, Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir. 2001), which had equated business necessity with the more-onerous standard of BFOQ under Title VII. The en banc court also held that the district court erred in categorically rejecting the relevance of the DOT standard to package cars: “To be sure, DOT’s regulation does not apply to the category of vehicles at issue in this case. However, that circumstance does not mean that the standard has no relevance to the employer’s safety argument. UPS is entitled to use as some evidence of its business necessity defense the fact that it relied on a government safety standard, even where the standard is not applicable to the category of conduct at issue.”

The court also ordered a remand of the liability finding under the California Fair Employment and Housing Act (FEHA): “Because we are vacating the district court’s determination that Oloyede and Habib were ‘qualified individuals’ under the ADA, we likewise vacate the district court’s finding that the two were ‘qualified individuals’ in the FEHA context.”

Apart from whatever else this decision says about the ADA substantively, it also says a good deal about the judges’ sensitivity to appearances (the deaf-driver seems awfully close to the “blind-pilot” chestnut) and judicial log-rolling (the compromise decision at the opinion’s core). Notably in light of the random assignment process used in this circuit for “en banc” hearings (15 judges are selected to sit out of 27 circuit judges), one finds various Democratic appointees — including the opinion’s author, Judge McKeown — joining the 13-judge majority. (Judges Berzon and Reinhardt dissented in part, but concurred in the result.)

True, the plaintiff class cannot be happy about having to roll the rock up the hill again, after winning at trial four years ago and first prevailing on appeal. But the court clearly anticipates that the class can prevail under its reconfigured analysis, and preserved some of the district court’s most important findings in the class’s favor. Meanwhile, the court corrected a debilitating analytical error by the district court (inadvertantly short-changing the “qualified individual” requirement) and let enough air into the “business necessity” defense to allow UPS to present evidence of the reasonableness of its rule. As with the panel rewrite of the Dukes v. Wal-Mart decision (see the December 11, 2007 entry below), the court sensibly prunes the excesses, heads off (in all probability) a successful petition for writ of cert to the U.S. Supreme Court and allows the employees to fight fairly another day.

Friday, December 28, 2007

Simple v. Walgreen Co., No. 06-3990 (7th Cir. Dec. 26, 2007) tries to set straight (not for the first, or likely last, time) the incoherence in the case law about the admissibility of non-decision maker testimony to prove intent.

The employee — an African-American assistant manager who sought promotion to manager — was offered, as promotional opportunities, stores in Peoriand Kankakee that Walgreens knew to be locate in African-American markets, with low income clientele and high “shrink” (described as the gap between expected and actual profits caused by shoplifting). A manager’s own income depends on profitability, so the prospect of being placed in those stores was not heartening. Meanwhile, a white woman with two years’ less experience as an assistant manager was hired to manage a store in Pontiac, a white and more affluent market.

The final straw for Simple was a conversation he had with his own manager, Leanne Turley, to which she testified in her deposition: “I may have stated that Pontiac was possibly not ready to have a black manager. It is well known in this area that some of the smaller, outlying towns have some very racist tendencies, and I was simply trying to make [the plaintiff] feel better because my feeling was he may not have been very happy working there.” Turley had nevertheless supported Simple’s promotion. (Simple had also testified that the same manager told him that “race was a factor” in the decision.)

Although the district court had granted summary judgment on this record, the Seventh Circuit reversed. That panel opinion, signed by Judge Richard Posner, led off its analysis by reminding courts and lawyers that “when a plaintiff in a discrimination case has direct evidence of discrimination as well as the indirect evidence required to make out a prima facie case under McDonnell Douglas he does not have to show that either approach, taken in isolation from the other, makes out a prima facie case — he can combine them.” Here, the record included the fact that the employer failed to produce a sensible and consistent reason for promoting a less-experienced white candidate to a desirable store.

The district court apparently failed to reckon with the significance of Turley’s statement, which was deemed by the panel as an admission within the scope of her employment under FRE 801(d)(2)(D). “The significance of Turley’s remark about racism in Pontiac lies in the fact that as an experienced Walgreens store manager (it appears that she had been one for at least four years) she was undoubtedly aware of what Palmer was looking for in a store manager in Pontiac, and one interpretation of the remark is that the plaintiff’s race would bar him from consideration by Palmer.” Turley’s statement was admissible even if she did not make the decision to hold up Simple’s promotion:

“Turley was not involved in the employment action-appointing Jonland to be the Pontiac store manager. But . . . she was involved in the process that led up to that action, by being consulted about the appointment. That was enough to make her statement – which was confirmed, moreover, by an internal investigation by Walgreen – an admission by her employer.”

Finally, as the Seventh Circuit confirmed, even a paternalistic concern for the minority employee (i.e., that he “may not have been very happy working” in Pontiac) does not justify a racially-motivated employment decision: “Racial segregation is obviously a form of racial discrimination.” (Indeed, even most judges forget that segregation constitutes a separate violation of Title VII: 42 U.S.C. § 2000e-2(a)(2).)

Friday, December 21, 2007

An end-of-the-year victory for a plaintiff, winning reversal of a jury verdict in a sex harassment case because of instructional error: Bright v. Colgate-Palmolive, No. 06-3927 (7th Cir. Dec. 21, 2007).

Earlier this year, in Issacs v. Hill’s Pet Nutrition, 485 F.3d 383, 100 FEP 705 (7th Cir. 2007), the Seventh Circuit held that a district court erred, while granting summary judgment in a hostile work environment case, when it held that moving a female employee from one “team” to another in the same worksite broke the chain of causation and rendered any prior harassment non-actionable.

Today, in a case involving the same plant in Richmond, IN, the same lawyers (on both sides), and 2/3 of the original Issacs panel, the court held the district court (a different judge) committed the same error in instructing the jury about which events in could consider in weighing liability.

From February 2000 to November 2002, Ms. Bright alleged the following harassment at the Hill’s Pet Nutrition plant (Colgate-Palmolive was the parent corporation):

“unwelcome sexual overtures and sex-related chatter, streams of misogynistic invective, refusal to train (team leaders tried to get women to view pornographic images on the men’s computers, and, when women declined, the men would declare that they had no time for training), assigning women to the dirtiest jobs (which team leaders called “women’s work”), and threats of violence, some of which were fulfilled (for example, Bright’s dog was shot, supposedly as a warning to her).”

In Ms. Bright’s case, though, the district court held that the company’s two-week suspension of 11 male employees in March 2002 for display of pornography wiped the slate clean and rendered prior acts of harassment irrelevant. Thus the jury was instructed not to consider the pornography incidents predating the discipline. The jury returned a defense verdict.

Revisiting the decision in Issacs, the Bright panel reiterated the holding that under National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 115-21 (2002), the earlier incidents are part of one, unitary violation:

“Employers may not turn a practice that Morgan deems unitary into two or more distinct practices by calling each subdivision of the workplace a separate ‘team.’ Most employers-and Hill’s Pet Nutrition is no exception-allow plant managers and human-relations departments to control working conditions plant-wide. When a single managerial staff or chain of command decides to permit the men in the workplace to make life miserable for the women, that is a single unlawful practice whether or not a particular woman moves from one team to another within the plant.”

The district court in Ms. Bright’s case made the same kind of error as in Isaacs, “instructing] the jury that it could not consider anything that happened to Bright before March 29, 2002, approximately 300 days before she filed her charge, and could not consider at all any of the incidents related to the pornographic images.” The panel held that it “is inappropriate to draw lines by time (that’s Morgan‘s core holding) or by the particular method that the men used to make working conditions worse for the women than for themselves. So it is not possible to rule out reliance on a particular kind of evidence (such as the pornographic pictures) or a particular time during which the hostile environment was manifest.”

Owing to the defective jury charge, the case goes back for second trial.

As mentioned, the same lawyers were involved in both Isaacs and Bright, and defense counsel took it in the chin on this repeat appearance:

“Counsel for Hill’s Pet Nutrition appears to believe that rules of law shift from case to case, so that anyone who ‘ought’ to win (as Hill’s Pet Nutrition is sure that it should) must have the benefit of some favorable legal rule. That approach is nothing less than a challenge to the proposition that there are rules of law at all; it is a claim that every case should be tried ‘on its own facts’ in a kind of law-free zone. We doubt that the employer would be so ready to jettison rules that favored its position; no more can it avoid legal rules that favor the plaintiff. Every case will have its own factual pattern, but the law does not change with the facts.”

Yet plaintiff’s counsel got pummeled too, because Ms. Bright sought to reargue the conclusion in Isaacs that Colgate-Palmolive was not liable as a parent for harassment at Hill’s Pet Nutrition: “parent corporations are not liable for the wrongs of their subsidiaries unless they cause the wrongful conduct (and so are directly liable) or the conditions of investors’ liability (‘piercing the corporate veil’) have been satisfied.

Thursday, December 20, 2007

Some courts hold that sex harassment in the workplace that starts with an outside romantic relationship is not “because of sex” under the rubric of Title VII. But the First Circuit now holds otherwise, offering a thoughtful analysis of this issue in Forrest v. Brinker International Payroll Co LP, No. 07-1714 (1st Cir. Dec. 19, 2007).

The case involved co-worker harassment at a Chili’s restaurant (name-calling — “whore,” “slut,” “bitch” — escalating to tenser situations, such as squirting hot water and cornering the employee in the cooler). The employee, Ms. Forrest, complained to the employer about the behavior at least three times and the harasser was eventually expelled from the property (he later resigned).

The district court believed that the harassment was not motivated by sex, but instead by personal animosity between the two employees, sparked by an “on-again, off-again” relationship off-site. But the First Circuit held that these facts did not disqualify Ms. Forrest’s claim from Title VII coverage:

“In cases involving a prior failed relationship between an accused harasser and alleged victim, reasoning that the harassment could not have been motivated by the victim’s sex because it was instead motivated by a romantic relationship gone sour establishes a false dichotomy. Presumably the prior relationship would never have occurred if the victim were not a member of the sex preferred by the harasser, and thus the victim’s sex is inextricably linked to the harasser’s decision to harass. To interpret sexual harassment perpetrated by a jilted lover in all cases not as gender discrimination, but rather as discrimination ”on the basis of the failed interpersonal relationship’ … is as flawed a proposition under Title VII as the corollary that ‘ordinary’ sexual harassment does not violate Title VII when the [ ] asserted purpose is the establishment of a ‘new interpersonal relationship.” Babcock v. Frank, 729 F. Supp. 279, 288 (S.D.N.Y. 1990)(internal citations omitted). Whether a harasser picks his or her targets because of a prior intimate relationship, desire for a future intimate relationship, or any other factor that draws the harasser’s attention should not be the focus of the Title VII analysis. Instead, improper gender bias can be inferred from conduct; if the harassing conduct is gender-based, Title VII’s requirement that the harassment be ‘based upon sex’ is satisfied.”

The court specifically noted that it was splitting with the Eleventh Circuit on this issue (citing Succar v. Dade County Sch. Bd., 229 F.3d 1343, 1345 (11th Cir. 2000); Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 (11th Cir. 2001)). Nevertheless, summary judgment is affirmed against Ms. Forrest on the ground that the employer took reasonable steps to abate the harassment (the employer had written policy against harassment, it imposed progressive discipline against the harasser and removed him within one month).

Wednesday, December 19, 2007

Two women in two different cases in trouble for (alleged) misconduct, including — in both cases — the use of foul language in the line of duty. Summary judgment is granted on their Title VII claims in both cases on the fourth element of the McDonnell Douglas prima facie case (replacement by an employee outside the protected class). On appeal, both win reversal following different paths.

In a Sixth Circuit case today, Vincent v. Brewer Company, No. 06-4138 (6th Cir. Dec. 19, 2007), the plaintiff was a gas company crew leader. She got in trouble with her employer when (1) she left a company vehicle unsecured by the side of the road; (2) two jobs that plaintiff supervised sprang leaks (she was demoted to laborer at this point); and (3) she allegedly committed insubordination (she refused a direct order to clean another crew’s truck). When layoffs came, she was the only permanent employee let go. Here, the district court thought the employee’s prima facie burden was to prove that a similarly-situated man replaced her in her former job, but the Sixth Circuit corrected this legal error:

“Vincent need not, as Brewer now contends, also show that Freels was similarly qualified. Such a requirement would inappropriately increase the showing that a plaintiff must make in order to establish a prima facie case. This court has repeatedly stated that the fourth element requires a plaintiff to show only that she ‘was replaced by a person outside the protected class.’ [Citations omitted.] Nowhere does this oft repeated standard suggest that a plaintiff and her replacement must be similarly qualified.”

Of course, it probably also helped out the plaintiff that she presented the following record, as evidence of pretext:

“Among the remarks alleged to have been made by Brewer management are the following: (1) [her supervisor] Ken Parker stated that he believed that women do not belong at Brewer and that he would not hire them. (2) Kevin Parker told a crew leader, Ronald Ayres, that he did not permit his female laborers to do any work aside from directing traffic and that Ken Parker would fire Ayres if he discovered Ayres allowing female laborers to perform any other task. (3) Ken Parker told a female employee, Tina Updike, that the only jobs available to women at Brewer were those involving traffic direction. (4) Kevin Parker told Vincent and another female employee, Tammy Ayres, that Ken Parker instructed him to only permit female laborers to direct traffic. (5) Kevin Parker told Tammy Ayres that she could not be in charge of a project because women are ‘not leaders’ at Brewer. (6) Ken Parker told Tammy Ayres that ‘the problem with you is you’re a f***ing woman.’ (7) Kevin Parker stated that Dilillo disliked women even more than Ken Parker, and that Dilillo wanted to remove all of the Utility Division’s female employees because they made it look bad. (8) Fetters frequently referred to Tammy Ayres using nicknames such as ‘sweetheart’ and ‘cupcake,’ and often asked female employees graphic sexual questions. (9) Ken Parker told Updike that if she wanted to earn a man’s pay then she would have to work like a man or she would be replaced by a man.”

In a recent Seventh Circuit case, Peirick v. Indiana University-Purdue University Indianapolis Athletics Dept.,No. 06-1538 (7th Cir. Dec. 14, 2007), the employee was an esteemed, 13-year veteran women’s tennis coach, 2004 College Coach of the Year by the Midwest Division of the U.S. Professional Tennis Association. At age 53, she was replaced by an inexperienced, 23-year-old sister of the men’s tennis coach. At first, she was told that the decision was based on the department’s decision to take the program in a “new, different direction,” although given the coach’s success, it is hard to imagine what new direction they wanted to take the program. The Seventh Circuit reported:

“Her players performed well academically, far exceeding the 2.6 grade point average (GPA) requirement, and they often had the highest or second-highest GPA for all of IUPUI’s athletic teams. Peirick was routinely acknowledged by the Athletics Department for encouraging her team’s academic performance. She received community service awards, including the 1998 U.S. Tennis Association’s Collegiate Community Service Award, a distinction extended to only ten coaches across the country. She never received an NCAA rule violation of any sort during her thirteen-year tenure. No one complained about her budgeting or fundraising abilities. During 2002-2003, Peirick’s final year as coach, the women’s tennis team had its best season in school history. It went undefeated during regular season play, won its first Mid-Continent Conference championship, and became the first women’s team at IUPUI to advance to the NCAA post-season tournament.”

Only after her termination, and the filing of an EEOC charge, did the school break out another reason for its decision: Peirick’s allegedly unprofessional conduct, which included abusive language, reckless driving of the team van, leaving team members behind on a road trip, and fanning anti-administration attitudes on the team (after a scheduling error cost them use of a first-class facility for a tournament). But the school never counselled the plaintiff on any of these infractions — it just fired her at the end of the season — whereas it allowed male coaches (Messrs. Lord and Franklin) progressive discipline for other violations. The district court thought that the men were not comparable, but the Seventh Circuit set the district judge straight:

“Franklin repeatedly contravened Section 3.1.4, which directed coaches to treat students with dignity and respect. Indeed, in his written reprimand, Moore told Franklin that his conduct had created a ‘culture of lack of respect for student-athlete dignity and emotional well being within the men’s soccer program.’ Likewise, Lord was accused of being verbally abusive. Lord also violated Section 2.4’s directive to avoid the appearance of impropriety when he engaged in ‘public behavior unbecoming of a head coach’ by allowing students to drink alcohol while on a road trip. Moreover, we can be sure that the University considered Lord and Franklin to have engaged in serious misconduct, as both were warned to improve or face termination. We find both to be similarly situated employees, who were treated more favorably than Peirick.”

(Ms. Peirick’s ADEA claim, incidently, flamed out on sovereign immunity grounds.)

Monday, December 17, 2007

UPDATE 7:50 am CST: Welcome back the Workplace Fairness blog, after a nine-month absence.

Let’s start the week off with two (not) hypothetical questions presented by recent retaliation cases:

Question 1 — If a beer sale man gripes to a customer about how he’s been mistreated by his employer, is that a protected activity? The Sixth Circuit holds “no” under the ADEA, at least where the complaint was not clearly about age discrimination. Fox v. Eagle Distributing Co., No. 07-5203 (6th Cir. Dec. 14, 2007) The employee (Fox) groused to a convenience store manager (Satterfield, also named Poplin) about his employer Eagle, a beer distributor. The manager reported back to Eagle and this memo would up in the file:

“Bonnie Satterfield (Manager for Pilot #207) stated to Todd Lawson (Eagle Area Manager) that ‘it took a while to get use[d] to Jim’.

“Ms[.] Satterfield stated to Todd that Jim was very vocal about suing Eagle Distributing. Ms[.] Satterfield states that Jim makes statements about Bob Winkel and Mike Thomas and ‘how upper management is out to get him’ and how they (Bob Winkel and Mike Thomas) prevented him from becoming a pre sell rep.

* * *

“Ms[.] Satterfield stated that Jim informed her that he was suing Eagle, Bob Winkel, and Mike Thomas for $10,000,000.00 and that should get our attention.

“Ms[.] Satterfield states that Jim is always talking about his lawsuit against Eagle.”

The employer fired him for “express[ing] his malcontent to employees and customers.” The district court granted summary judgment on the ADEA retaliation claim, and the Sixth Circuit affirmed. Without reaching whether a complaint to a customer was ever a protected act, it held that the vagueness of Fox’s complaints took them outside of the anti-retaliation rule:

“[T]he record does not contain any evidence that Fox specifically alleged discriminatory employment practices in his discussion with Poplin. In her affidavit, Poplin states that Fox mentioned suing Eagle and ‘that he had made comments about not getting promoted to a pre-sell position.’ The memo written by Mark Thomas in Fox’s personnel file states that Fox was ‘very vocal about suing Eagle Distributing,’ that Fox told Poplin ‘how upper management is out to get him’ and how Winkel and Thomas prevented Fox from becoming a pre-sell rep. Fox further told Poplin that he was suing Eagle and suggested that the lawsuit would get Eagle’s attention. Although Fox’s lawsuit against Eagle alleged age discrimination, Poplin did not state – either in her affidavit or as recounted in the personnel memo – that Fox alleged that he was denied the promotion due to age discrimination or that Eagle engaged in any unlawful employment practices.”

Question 2 — does cutting a Voice of America radio producer’s airtime down from a 17-minute weekly gig to 13 minutes constitute an adverse action for a complaint of discrimination? Um, that would be a “no” also, from the D.C. Circuit. Wiley v. Glassman, No. 06-5402 (D.C. Cir. Dec. 14, 2007). Quite simply, “Appellant offered nothing to the District Court or to this court establishing that the reduction in her airtime production – from 17 minutes to 13 minutes – could affect her compensation, grade, or opportunity for future advancement.”

Friday, December 14, 2007

The Fifth Circuit offered us two employment decisions this week.

The first, Price vs. Rosiek Construction, No. 06-41304 (5th Cir. Dec. 13, 2007), perpetuates the incoherence of two other decisions from earlier this year in the same circuit — Decorte v. Jordan, 497 F.3d 433 (5th Cir. 2007) and Guerra v. North East Independent Sch. Dist., 496 F.3d 415 (5th Cir. 2007). Decorte held that it was not error at trial to admit an EEOC determination in favor of the plaintiff into evidence, while Guerra held that it was not error to exclude a favorable EEOC determination. The cases were issued the same week, and neither referred to the other.

In this case, the district court admitted the determination (favorable to the employee), but instructed the jury with respect to the evidence as follows:

“The findings or determinations of the EEOC are therefore not binding on the trier of fact. You may, but are not required, to accept the findings in the EEOC reports. The reports do not relieve you of your obligation to review all of the evidence in the case and to make your decisions based on the facts as you read them.”

Plaintiff (who lost at trial) complained on appeal that the instruction was error “because it singled out the EEOC report for special inattention by the jury.” But the panel, affirming the verdict, held (with citations omitted):

“The trial court’s instruction regarding the binding effect of the EEOC’s findings was not an abuse of discretion. The instruction correctly stated the law regarding the probative value of an EEOC determination. We have held that the trial court has discretion to exclude an EEOC report altogether if prejudice or other considerations outweigh its probative value. Because the trial court’s instruction did not misrepresent the binding effect or probative value of the EEOC’s findings and determinations, we conclude that the court did not abuse its discretion by providing a cautionary instruction.”

The Court cited neither Decorte not Guerra, leading practitioners in that circuit into deeper water about the probative weight and admissibility of such EEOC findings.

Employees may be cheered, on the other hand, by Downey vs. Strain, No. 06-30613 (5th Cir. Dec. 12, 2007), in which the court split with the Eleventh Circuit and upheld the validity of the Department of Labor’s regulation 29 C.F.R. § 825.208(a)-(b)(1), requiring individual notice to an employee that time off will be designated as FMLA leave. In this case, the employee used 424 hours of FMLA leave due to a work-related injury. During that leave, the employer (a parish sheriff’s office in Louisiana) informed her that the time was specially designated as FMLA time. But when she went out on a second leave (owing to another workplace injury), the employer failed to give such notice and her time expired while she was recovering. She was demoted on her return to work and the employee charged that the adverse action was taken to interfere with her FMLA rights.

The employee won her claim at trial ($16,400 back pay, $13,128 front pay), and the sheriff’s office appealed. The Fifth Circuit affirmed. It held that the DOL regulation requiring individual notice was valid. It summarized the requirements as follows:

“‘In all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section.’ 29 C.F.R. § 825.208(b)(1) provides, ‘Once the employer has acquired knowledge that the leave is being taken for an FMLA required reason, the employer must promptly (within two business days absent extenuating circumstances) notify the employee that the paid leave is designated and will be counted as FMLA leave.’ The notification must be ‘provided to the employee no less often than the first time in each six-month period that an employee gives notice of the need for FMLA leave.’ Id. § 825.301(c).”

The panel affirmed that the regulation was a valid interpretation of the FMLA, provided that the employee suffered actual prejudice from denial of individual notice (disapproving McGregor v. Autozone, Inc., 180 F.3d 1305 (11th Cir. 1999)). “In this case, the employee whose employer violated the individualized notice regulations still bears the burden of demonstrating that her rights have been impaired and that she has been prejudiced. Although the district court noted that Strain’s noncompliance was undisputed, it still required Downey to prove that the noncompliance interfered with her rights under the FML and thereby caused her prejudice before providing her with a remedy.” Here the jury found that had the employee received proper individual notice, she could have structured her absence to avoid running out of leave time.

Wednesday, December 12, 2007

Here’s another lesson in how the requirements of state anti-discrimination law may drop the threshold of proof for the employee: Sarnowski v. Air Brooke Limousine, No. 06-2144 (3d Cir. Dec. 12, 2007). An employee claimed he was fired owing to disability (“Coronary Artery Disease and Wolff-Parkinson-White syndrome (an abnormal electrical communication in the heart which causes episodes of rapid heart rate)”), to interfere with FMLA leave and for whistleblowing under New Jersey state law. The district court granted summary judgment on all three claims.

On appeal, the Third Circuit affirmed summary judgment on the whistleblowing count, but reversed on the other two claims. The FMLA count flipped because the district court erred in holding as a matter of law that a request for leave must be made through the company’s formal FMLA program. Citing 29 C.F.R. § 825.302(c), and case law from the Fifth, Sixth and Eighth Circuits, the panel held:

“In providing notice, the employee need not use any magic words. The critical question is how the information conveyed to the employer is reasonably interpreted. An employee who does not cite to the FMLA or provide the exact dates or duration of the leave requested nonetheless may have provided his employer with reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA.”

As far as the state-law disability discrimination count, the panel held that the district court set the standard of proof too high to establish that he was disabled. The district court believed that the employee had to submit expert testimony, but the Third Circuit read New Jersey law differently:

“This holding by the District Court misstates the standard adopted in New Jersey in interpreting the LAD. The District Court relied on Clowes v. Terminix Int’l, Inc., 538 A.2d 794 (N.J. 1988), in requiring expert testimony of a disability. In Clowes, however, the New Jersey Supreme Court called for ‘competent and legal evidence’ to support the diagnosis of a disability. Id. at 806. In Clowes, the court gave expert testimony as an example of such evidence. In subsequent cases, testimony by the plaintiff’s own treating physician has been held to satisfy this “competent and legal evidence” requirement.

Here, “there was sufficient information on his medical condition – including records from his treating doctors that catalogued his diagnoses with Coronary Artery Disease and Wolff-Parkinson-White syndrome, his October 2002 bypass surgery, specific findings by his heart surgeons, and the installation of an intracardiac defibrillator in his chest at the end of April 2003 – to create an issue for the jury on Sarnowski’s disability under LAD.”

Tuesday, December 11, 2007

The Ninth Circuit dropped its Version 2.0 of the landmark Dukes v. Wal-Mart Inc., No. 04-16688 (9th Cir. Dec. 11, 2007) that denies panel rehearing of the decision affirming class certification in the nationwide sex-discrimination case. (This is unlikely to be the final word, though, as the republished panel decision may once again be the subject of a petition for rehearing en banc.) There are most definitely differences of substance between the original Wal-Mart decision and today’s substituted opinion, motivated (I suppose) by a hope to avoid conflicts with intervening decisions in other courts of appeals (most notably, the Second Circuit), and minimizing opportunities for en banc review or writ of cert to the Supreme Court. Unfortunately, from a plaintiff lawyer’s perspective, it makes for a more timid (if perhaps more defensible) opinion.

Here are some of the notable changes:

1. The new opinion trims out language from the original that the district court need not apply Daubert standards at the Rule 23 stage to evaluate the admissibility of expert testimony.

2. It adds a new fn.3 stating that evidence concerning the Rule 23 factors (commonal; city, typicality, etc.) must be weighed even if it may overlap with the merits.

3. On the plus side, there is this new language at p.16229: “Wal-Mart is incorrect, however, that decentralized, subjective decision making cannot contribute to an inference of discrimination. Indeed, courts from around the country have found “[a]llegations of similar discriminatory employment practices, such as the use of entirely subjective personnel processes that operate to discriminate, [sufficient to] satisfy the commonality and typicality requirements of Rule 23(a).” Shipes, 987 F.2d at 316; see also supra note 4 and cases cited therein.”

4. The panel also yanked out several paragraphs from the old opinion that unambiguously allowed former employees to serve as class representatives for injunctive relief. Instead, it substitutes a new section:

“Class Certification May Not be Proper as to Class Members Who Were Not Wal-Mart Employees as of the Date Plaintiffs’ Complaint Was Filed

“Wal-Mart’s final contention is that, because a substantial number of the putative class members no longer work for Wal-Mart – and, thus, no longer have standing to seek injunctive or declaratory relief – injunctive and declaratory relief cannot possibly predominate over monetary relief for purposes of certifying this class under Rule 23(b)(2).

“[18] We agree with Wal-Mart to this extent: those putative class members who were no longer Wal-Mart employees at the time Plaintiffs’ complaint was filed do not have standing to pursue injunctive or declaratory relief. See Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033 (9th Cir. 2006) (recognizing that former employees lack standing to seek injunctive relief because they “would not stand to benefit from an injunction requiring the anti-discriminatory policies [to ease] at [their] former place of work”); Am. Civil Liberties Union of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006) (“When evaluating whether [the standing] elements are present, we must look at the facts ‘as they exist at the time the complaint was filed.’ ” (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 569 n.4 (internal quotation marks omitted)). Under these circumstances, it is difficult to say that, “even in the absence of a possible monetary recovery, reasonable plaintiffs [who lack standing to seek injunctive or declaratory relief] would [nonetheless] bring th[is] suit to obtain the injunctive or declaratory relief sought.” Molski, 318 F.3d at 950 n.15 (quoting Robinson, 267 F.3d at 164).

This does not mean that the entire class must fall. Those putative class members who were still Wal-Mart employees as of June 8, 2001 (when Plaintiffs’ complaint was filed) do have standing to seek the injunctive and declaratory relief requested in the complaint, see Lomax, 471 F.3d at 1015, and we are satisfied that these putative class members would reasonably bring this suit to put an end to the practices they complain of “even in the absence of a possible monetary recovery.” We are also satisfied that, if these plaintiffs ultimately succeed on the merits, an injunction or declaratory judgment preventing Wal-Mart from continuing to engage in unlawful gender-based employment discrimination “would be both reasonably necessary and appropriate.” Molski, 318 F.3d at 950 n.15 (quoting Robinson, 267 F.3d at 164). Moreover, for the reasons explained in Parts II.B.1-II.B.4, we are confident that the primary relief sought by these plaintiffs remains declaratory and injunctive in nature notwithstanding their request to also be “made whole” in a monetary sense to the full extent provided for under Title VII. Accordingly, class certification under Rule 23(b)(2) was appropriate at least as to these plaintiffs.

“[19] We thus remand to the district court for a determination of the appropriate scope of the class in light of the above observation and in light of any evidence presented to it regarding which putative class members were still Wal-Mart employees as of June 8, 2001.

5. Its discussion of back pay clarifies that such relief is monetary, not equitable, and does typically weigh against certification of a Rule 23(b)(2) class (although the district court did not abuse its discretion in certifying the class in this case).

6. Most painfully, it pulled out all of the language in the closing section about the future path of the case (Wal-Mart’s defenses, due process, the 1991 Act, mixed-motives, etc.), in favor of a much blander section kicking the can down the road:

“At this pre-merits stage, we express no opinion regarding Wal-Mart’s objections to the district court’s tentative trial plan (or that trial plan itself), but simply note that, because there are a range of possibilities – which may or may not include the district court’s proposed course of action – that would allow this class action to proceed in a manner that is both manageable and in accordance with due process, manageability concerns present no bar to class certification here.”

It may be that trimming the sails was the wisest course for the panel majority here (although it did not placate Judge Kleinfeld, who remains in dissent). But I regret losing some of the valuable language from the first decision, and can only hope that the same issues may be litigated in the future (with a favorable outcome for plaintiffs).

Friday, December 7, 2007

This will be a busy term for employment discrimination, with the Supreme Court once again granting cert in another case today, Huber v. Wal-Mart. It’s a feather in the cap of two valued colleagues (Prof. Sam Bagenstos, at Washington University Law in St. Louis; and Prof. Eric Schnapper of The University of Washington) who joined forces with the original attorney (C. Brian Meadors) to file the cert petition (available through scotusblog). It also the first such case in a while granted for an employee-petitioner (most of the cases this term were appealed by employers), as well as the first case this term construing the substantive provisions of the American with Disabilities Act.

The question presented reads as follows: “If a disability prevents an employee from performing the essential functions of his or her current position, does the ADA require: (a) that the employer reassign the employee to a vacant, equivalent position for which he or she is qualified, as the Tenth and District of Columbia Circuits have held; or (b) that the employer merely permit the employee to apply and compete with other applicants for the vacant, equivalent position for which he or she is qualified, as the Seventh and Eighth Circuits have held?” For whatever reason, the court declined cert on a subsidiary question: “Is the EEOC’s interpretation of its regulation entitled to deference under Long Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339 (2007) – a case decided twelve days after the Eighth Circuit rendered its decision in this case?”

Here’s a link to what I wrote about the case last May.

Wednesday, December 5, 2007

Under the ADA, as we learned from Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002), the courts regard as disabled persons who are limited in activities “that are of central importance to most people’s daily lives.” This has been taken to mean that the person claiming rights under the ADA must show that they are disabled compared to the general population, and not to a specialized sub-group. So in Singh v. George Washington Univ. school of Medicine, No. 06-7133 (D.C. Cir. Dec. 4, 2007), a Title III public accommodation case, the panel has no problem concluding that the proper cohort for an expelled medical student (with dyslexi and a mild disorder of processing speed) is the public at large, rather than other high-functioning medical students.

But there are wrinkles to this decision worthy of note. First of all, the panel takes head-on a complication posed by the Toyota Motor standard: does the general population include persons in the claimant’s general age group or all of humanity in the U.S.? The court holds that, within reasonable limits, age may be relevant:

For one thing, the medical definition of an impairment will frequently make reference to age; the mental development of a six-year old is fine for six-year-olds, but not for their parents. For another, the ADA requires that the impairment be the effective cause of the plaintiff’s limitation; a newborn with a malformed foot cannot walk as well as the average person, but he is not disabled under the ADA, because even perfectly healthy newborns cannot walk. Thus, if a dyslexic seven-year-old cannot learn as well as the average person, a court might begin by comparing his learning ability to that of the average seven-year-old,

Second, the court separates out the major life activity of learning from the ancillary activity of taking standardized tests (Ms. Singh’s bête noire):

“While the district court rightly observed that tests are often the ‘gatekeepers to ever higher levels of learning,’ id., its conclusion [that the tests themselves were a “major life activity”] was nonetheless error. First, test-taking itself is not a major life activity. In Toyota Motor, the Supreme Court defined ‘major life activities’ as ‘those activities that are of central importance to daily life,’ including ‘such basic abilities as walking, seeing, and hearing,” 534 U.S. at 197; see also id. at 198 (adding that an impairment must “prevent[] or severely restrict[] the individual from doing activities that are of central importance to most people’s daily lives” (emphasis added)).”

Third, in spite of finding for the school on the disability definitional issues, the panel concludes that it must remand the case because of clear error in the district court’s findings on other issues. (It found that, at a bench trial, the district court issued contradictory findings of fact and failed to comprehend one of plaintiff’s experts witnesses.)

Finally, the plaintiff’s lawyer is listed as “Bruce Fein.” Bruce Fein, the conservative D.C. pundit? The docket also lists Carol Ann Lafond, an attorney at the newly-agglomerated megafirm Dewey & LeBoeuf. I must wonder how such lawyers became connected with a common discrimination case such as this?

Tuesday, December 4, 2007

More activity in the Supreme Court — the transcript of oral argument in Sprint/United Management v. Mendelsohn, the case concerning the admissibility of evidence of other acts of discrimination at the workplace (here, an ADEA case) to support an inference of bias, also termed “other supervisor” or “me-too” evidence.

At first blush, this appears to be (and could yet turn out to be) an important case about how to prove intent within an organization — a decision that could have implications in antitrust, securities and even white-collar criminal cases. This case went up on the following question (rephrased by me): Can the alleged biases of other managers in the same organization be presented in evidence to support an inference that a particular decision was more likely than not infected by bias? A fair answer to such a question, percolating in the questions of the so-called “swing” justices, would be, “well, it depends.” One would want to know what kind of instructions managers were operating under, what kind of discretion they exercised, how much contact they had with each other and other factors that might have influenced the decision to take an adverse action.

The agenda of the management lawyer arguing the case (on behalf on the entire defense bar) is nothing less than to draw a charmed circle around the challenged individual employment decision and let nothing else in. Counsel advocated (in his brief and oral argument, see esp. pp.12-14) the hard position that evidence of other decisions in the workplace is, in most instances, presumptively irrelevant an inadmissible under Federal Rule of Evidence 401. This proved a tough sell to Justice Kennedy, and even Justice Alito (who, at pp36-37, has his opinion-writing pen all poised and ready to write an opinion reversing the Tenth Circuit on FRE403 grounds).

Now scratch the surface of the case, and you find an issue of administration of civil justice to warm the hearts of appellate lawyers everywhere. The Tenth Circuit decision on review has been criticized for subverting “abuse of discretion” review, by ordering a new trial and directing the admissibility of evidence instead of remanding the issue to the district court. This argument was central to the Solicitor General’s amicus brief (nominally supporting Sprint, the petitioner, but in actuality a very good brief supporting a more liberal rule of admissibility than Sprint would tolerate). But in order to understand where the court of appeals was coming from, you must take a look at the order that was under review, as extracted here from the Tenth Circuit’s decision:

“The district court, without the benefit of a proffer or a hearing, decided the motion by minute entry on the docket sheet. The entry reads:

“Paragraph 1 is sustained as to evidence that Sprint has a pattern and practice, culture or history of age discrimination….. Plaintiff may offer evidence of discrimination against Sprint employees who are similarly situated to her. ‘Similarly situated employees, ‘for purposes of this ruling, requires proof that (1) Paul Ruddick [sic] was the decision-maker in any adverse employment action; and (2) temporal proximity.

“We believe this approach lacking. As we previously have explained, district courts must be sufficiently detailed in their rulings so as to provide us with an understanding of the process the court used to reach its decision. Otherwise, we have difficulty reviewing the trial court’s decision, in particular when our review is for an abuse of discretion.”

At trial, rough-and-ready is the name of the game and evidentiary decisions are often rendered in one-word orders, “sustained” or “overruled.” But with a pretrial order on a motion in limine, though, the panel is flummoxed by the cryptic ruling seen here. The district judge evidently believed herself absolutely boxed-in by her (over) reading of a prior Tenth Circuit case, Aramburu v. The Boeing Co., 112 F.3d 1398, 1404 (10th Cir.1997) (Westlaw subscription required), which affirmed the exclusion of other-supervisor evidence. It is entirely understandable that the panel majority — in a decision authored, notably, by a Republican appointee who was a former district court judge — reacted with a lack of trust of the district court’s judgment. Justice Ginsburg (at p.62) gets at the heart of it in her parting question to Sprint’s lawyer, with a rimshot by Justice Scalia:

“JUSTICE GINSBURG: Do you not think that there is an important value that the Tenth Circuit recognized in making it clear that there is no absolute bar? If we just assume in favor of the district court, when we don’t know that the district court didn’t take it as an absolute rule, that — this is a point of law that should be clarified for the benefit of district courts. Either there’s a categorical bar or there’s not.

“MR. CANE: I think that, absent some showing of relationship of nexus, then the presumptive rule in the run of cases should be that this evidence should not be admitted.

“JUSTICE SCALIA: You — you don’t want that clarification to be done at the expense your client, I take it?

“(Laughter.)”

Now our Supreme Court will have to answer, in the abstract, whether the panel majority applied a sufficient degree of deference under these straitened circumstances. Justice Kennedy seemed to have grasped this point with his first question (at 3): “If you were to read the district court’s minute order — and this is that short minute order — as saying that evidence of pattern and practice simply is not admissible, that would be error, would it not? Error to — if the — if that had been his ruling, that would have been error. In my Court, you don’t introduce pattern and practice.” I can only hope that a per curiam opinion that issues is suitably narrowed to that problem, i.e., how a court of appeals handles review of such an order.

My favorite part of the argument is at the close, where Sprint’s lawyer tries to run away from its own amicus support from the United States.

“MR. CANE: . . . Let me respond to a couple of the Solicitor General’s points. The Solicitor General in his brief said three things with which we agree: the plaintiff’s burden to lay foundation; anecdotes don’t comprise –

“JUSTICE GINSBURG: The — the Government said it was not necessary to lay a foundation. Mr. Garre confirmed that point.

“MR. CANE: He did say that, Justice Ginsburg, but that’s not what their brief says.

“CHIEF JUSTICE ROBERTS: Thank you, Mr. Cane. The case is submitted.”

As the print media would conclude, decision is expected by next June.

And if you’re getting ready for trial, plaintiff’s counsel, prepare for rough weather ahead.

Monday, December 3, 2007

In Supreme Court action today, it looks like our justices may – twenty years after its disastrous foray in Watson v. Fort Worth Bank and Wards Cove – sail once again into the shoals of Title VII disparate impact. A cert petition is pending Gulino v. Board of Education of the N.Y.C. Sch. Dist., 460 F.3d 361 (2d Cir. 2006), concerning the standards for content-validation of an entrance exam (here, a test for incoming teachers). Now, note the order on this case dated December 3, 2007. Though by no means a lock, when the Court asks for the Solicitor General’s views on a case, it shows that the cert petition (here, by the school board) at least has risen to the top of the pile. (It is possible, though, that the merits of the appeal may lose pride of place to a threshold question: whether a state can be liable for promulgating a teacher exam that allegedly violates Title VII.)

At the same time, it has turned down review of a case very important to ERISA litigators, Eichorn v. AT & T Corp., challenging the Third Circuit’s holding that a prayer to adjust participants’ pension records was nothing more than a request for compensatory damages, unavailable as relief under ERISA §§ 502(a)(3) and 510, 29 U.S.C. §§ 1132(a)(3), 1140.

 

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