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Sampath v. Concurrent Tech Corp., No. 08-2370 (3d Cir. Nov. 13, 2008); Rund v. Charter Communications, Inc., No. 07-15595 (9th Cir. Nov. 14, 2008); Montgomery v. Chao, No. 07-5255 (D.C. Cir. Nov. 13, 2008)

| Nov 13, 2008 | Daily Developments in EEO Law |

Welcome to the sad, week-ending cavalcade of the hobbled and lame: three decisions (two unpublished) affirming summary judgment, none showing a glimmer of life on appeal.

Sampath v. Concurrent Tech Corp., No. 08-2370 (3d Cir. Nov. 13, 2008) (unpub):  Claim of retaliation and national origin discrimination in pay and opportunities for advancement, in violation of Title VII.  The key holding:

“Sampath asserts that the District Court improperly made credibility determinations by considering Sampath’s performance reviews. Sampath objects on the basis that his reviews are merely a collection of unverified perceptions. As a general matter, a court may not second-guess an employer’s evaluation of its employee. See Fischbach v. Dist. of Columbia Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996); Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 547 n.38 (3d Cir. 1992) (allowing law firm to rely on its own subjective assessment of employee’s legal ability in making partnership decision, and permitting the law firm to err in that assessment, as long as error was not based on unlawful discrimination). Whether an employer has misjudged an employee’s performance, however, is relevant to the question of pretext. Fischbach, 86 F.3d at 1183. Although the record contains evidence indicating that several clients and colleagues believed Sampath had tremendous technical capabilities, the record does not indicate that Sampath received comparable praise for his personal qualities. Id. In other words, Sampath’s positive reviews are consistent with the negative assessments of his personality traits, and the former do not undermine the latter. Accordingly, we believe that Sampath has not shown that his negative performance reviews were pretext for prejudice.”

Rund v. Charter Communications, Inc., No. 07-15595 (9th Cir. Nov. 14, 2008) (unpub):  Under California’s equivalent to the ADA (Cal. Gov. Code §§ 12940(a), 12940(n), and 12926(k)(4)), the plaintiff loses because he improvidently admitted in his deposition that his restrictions disqualified him from his old job — “As Rund acknowledged in his deposition, ‘the essential functions of [his] position require[d] [him] to climb a ladder, kneel and squat’ – activities that were explicitly proscribed by the multiple notes from his doctor that Rund submitted to Charter.”

The court also affirms that the assignment of a “bucket truck” to the employee, so he did not need to kneel and squat, was not a reasonable accommodation:  “The truck could not access many of the locations that required Rund’s services, and even when it could, was not an adequate substitute for climbing a ladder because the truck’s arm could not reach areas to which Rund would need to climb. Even if the bucket truck were an adequate accommodation, Charter could not afford to purchase or reassign a truck to Rund’s service area on a permanent basis.”

Montgomery v. Chao, No. 07-5255 (D.C. Cir. Nov. 13, 2008):  In a Title VII race and sex discrimination case, the court affirms summary judgment on all claims of failure to reclassify or promote, holding in summary that (1) the employee’s putative five comparables held different positions and worked in a different branch of the agency, and record did not support alleged fabrication of his job duties and experience; (2) choice of “more qualified applicant” was legitimate reason and amply supported by record; (3) reference to “past history” of employee too feeble and ambiguous to support inference of retaliation; (4) for one position, no record that plaintiff made “status application.”

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