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Chapman v. Carmike Cinemas, No. 08-4043 (10th Cir. Jan. 12, 2009); Ricci v. DeStefano, No. 07-1428 (U.S. S. Ct. Jan. 9, 2009)

| Jan 11, 2009 | Daily Developments in EEO Law |

The Tenth Circuit issues an unpublished decision reversing summary judgment in part in a single-incident sex-harassment case, involving a putative supervisor who committed criminal sexual assault at the workplace. And the U.S. Supreme Court picks up a racial hot-potato from the Second Circuit.

Chapman v. Carmike Cinemas, No. 08-4043 (10th Cir. Jan. 12, 2009):  Single-incident hostile work environment cases are seldom the subject of judicial opinions.  Here, a district court in Utah granted summary judgment on all of Ms. Chapman’s claims against the defendant:  supervisor harassment, co-worker harassment and constructive discharge.  The Tenth Circuit reverses on the first of these.

The plaintiff, a projectionist at the atre, was sexually assaulted by an assistant manager (who eventually served prison time for the deed).  On the supervisor harassment claim, the district court erred — holds the Tenth Circuit — in concluding that there was no basis for vicarious liability by the atre. 

First, the plaintiff presented a genuine issue of material fact about whether the assistant manager was a “supervisor” for purposes of Faragher-Ellerth:  “there  . . . is some evidence in the record that assistant managers were incharge when the managers were off, and that they had authority to set schedules, to discipline, and to recommend termination for employees not directly within their command structure.” 

Second, the panel rejects the district court’s analysis that an employer can prove the second prong of the affirmative defense under Faragher-Ellerth by taking corrective measure after the assault occurs and is reported.  The Eighth Circuit once held that an employer need not prove (as the second prong of its affirmative defense) that the employee unreasonably failed to avail herself of corrective measures where the harassment involves an unforseeable, one-time incident.  McCurdy v. Ark. State Police, 375 F.3d 762, 771 (8th Cir. 2004).

But the Tenth Circuit eschews that approach here.  The record unmistakably showed that Chapman “did not fail to avail herself of her corrective opportunity. Instead, she did the opposite – she immediately reported the assault to Carmike through appropriate channels.”  Accordingly, the employer is held not entitled to summary judgment on its defense because it failed to establish the second prong of the defense as a matter of law.  (Indeed, from what I can see, the employer must lose the affirmative defense as a matter of law.)

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It has already been widely reported that the U.S. Supreme Court granted cert last Friday in another Title VII case, Ricci v. DeStefano (here’s the Workplace Prof Blog’s report), although the final ground of decision that the Court might reach remains clouded.  The City of New Haven used a pen-and-paper test to rank candidates for promotion in the fire department, only to abandon the list when it turned out that the minorities tested poorly.  The Second Circuit affirmed summary judgment for the city in a terse and originally unpublished decision (essentially adopting the grounds of the district court), while an eventual vote on whether to rehear the case en banc failed by a 7-6 margin.

The petitioners — the frustrated white applicants  — offer a smorgasbord of options from the which the Court may choose:  (1) that mere apprehension of disparate impact liability (42 U.S.C. § 2000e-2(k)) is not a valid, non-discriminatory reason for a racially discriminatory failure to hire off of a racially-neutral list of test-takers; (2) that the failure to use the list constitutes unlawful “race norming” under 42 U.S.C. § 2000e-2(l); or (3) that a federal court lacks authority under 42 U.S.C. § 2000e-7 to countermand a state supreme court ruling ordering the use of a test. 

The glaring issue is the razor-edge problem of what a public employer is supposed to do when it suspects (but is perhaps short of proving) a disparate impact in a selection mechanism.  I look forward to the briefing.

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