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Wyatt v. Horkley Self-Serve, Inc., No. 08-35063 (9th Cir. Apr. 1, 2009); Bell v. Prefix, Inc., No. 07-2059 (6th Cir. Apr. 2, 2009)

| Apr 1, 2009 | Daily Developments in EEO Law |

In unpublished decisions this week, the Ninth Circuit affirms a $466,250 judgment in a sex harassment case, and the Sixth Circuit remands an FMLA case for trial.

Wyatt v. Horkley Self-Serve, Inc., No. 08-35063 (9th Cir. Apr. 1, 2009):  Here, both the individual harasser (James H. Horkley) and the company itself were found liable for harassment under Title VII and the Idaho Human Rights Act.  The Ninth Circuit panel affirms.  It finds, first, that the defendants waived any challenge to the fifteen -employee minimum for Title VII coverage by admitting those allegations in the answer.  The panel also affirmed the admissibility of other acts of harassment, and upheld an attorney fee award of $291,701.61.

The “most challenging issue” in the appeal was plaintiff’s injection of testimony about an alleged “secret camera” that brought the trial to a halt.  The district court suggested to the parties at sidebar that the error was significant enough to warrant a mistrial, but neither party demanded one at that time.  Only later, after the court dropped the issue did the defendants decide to object to the testimony.  The district court declined to declare a mistrial, but (1) gave a specific instruction to disregard the disputed evidence and (2) canvassed the jurors about whether they understood. The panel finds that the curative instruction and lack of apparent prejudice to the defendants lifted any taint from the plaintiff’s error.

Bell v. Prefix, Inc., No. 07-2059 (6th Cir. Apr. 2, 2009): In an FMLA case, the panel finds enough — just enough — evidence that an employee Jonathan Bell may have been terminated in retaliation for taking intermittent leave to take care of his hospitalized father.  On the third day that he was required to attend to his father, because of an emergency, his manager (Serra) became abusive when Bell took some pizza from an employee event on his way out; Serra “became enraged and belittled [Bell] in front of Jim Turner and other employees for abandoning [Prefix] when there was work to be done.” Bell took one further day off (a total of four days altogether).  He fired two days later.  “[Supervisors] Serra and Closs discussed the fact that ‘[t]he attitude that [Bell] has taken probably is a little laxidasical [sic], and the workload was very high and the progress was a little slow.’ Serra also noted that ‘everybody’ should be working more hours. Serra then called Bell into his office and fired him.”

The panel finds that the employee met the burden of proving a prima facie case under the FMLA: that he was taking lawful leave time to care for his father, and fired within days of his leave. (Although the employer disputed that Bell was in fact “caring” for his father, the panel holds that this at most presented a disputed issue of fact and that his affidavit, submitted with summary judgment, did not contradict his testimony. 

Importantly, the panel rejects the employer’s proffer of a “legitimate, non-discriminatory” reason that the company was in lay-off mode at the time:  “Viewing Bell’s termination as part of an RIF exposes a flaw in Prefix’s stated reason: it does not specify why Bell, rather than another employee in the modeling department, was terminated.”  But the panel  instead credits a different reason not specifically presented by the employer — that his supervisors found  Bell “a slow worker with a lackadaisical attitude.”

The panel then finds enough reason to doubt the explanation, such as the supervisors’ sudden hostility to Bell, the public berating of Bell at the pizza lunch for taking off time to which he was entitled, and the lack of a specific process for choosing employees for the RIF.  So though a “close question,” the panel remands the case for a trial.

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