Two fantastic results for plaintiffs this week. In the Third Circuit, a gay man succeeds in reversing summary judgment in a Title VII case — on a sex-stereotyping theory — claiming harassment and retaliation, although his parallel religious harassment case fails. In the Fourth Circuit, in an unpublished decision, the panel affirms an jury award and judgment of over $1 million for a plaintiff under a state-law disability discrimination statute.
Prowel v. Wise Business Forms, Inc., No. 07-3997 (3d Cir. Aug. 28, 2009): Without passage of ENDA sexual orientation remains a non-status under Title VII, but a canny plaintiff and his attorneys were able to blaze a path around this problem by recasting the alleged harassment as sex stereotyping. The plaintiff operated a machine called a name encoder, which processes business forms. He testified that his behavior placed him at odds with the masculine norm of the plant:
“In stark contrast to the other men at Wise, Prowel testified that he had a high voice and did not use; was very well-groomed; wore what others would consider dressy clothes; was neat; filed his nails instead of ripping them off with a utility knife [ed. I really liked this one]; crossed his legs and had a tendency to hake his foot ‘the way a woman would sit’; walked and carried himself in an effeminate manner; drove a clean car; had a rainbow decal on the trunk of his car; talked about things like art, music, interior design, and decor; and pushed the buttons on the nale encoder with ‘pizzazz.'”
During his employment, Prowel reported that his co-workers called him names (“Princess,” “Rosebud”), derided his looks, labelled him a “faggot,” and left behind ugly notes and graffiti. Some church-oriented co-workers also called him a “sinner,” left him prayer cards, told he would burn in hell and asked if he’d “come clean with [his] maker.” When he told some co-workers that he was planning to file a lawsuit, they complained to management that Prowel was bothering them. Management met with Prowel about his complaints (mostly about being under-compensated), which led to an inconclusive end, and by the end of the year, he was fired for “lack of work.”
Although the district court granted summary judgment because it believed that Prowel’s claims were about sexual-orientation harassment, the panel reverses. Citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the panel holds that the record ambiguously supported a different invidious motivation, consistent with Title VII — sex stereotyping. The panel finds that the mixed-motive section of Title VII fits this case:
“To be sure, the District Court correctly noted that the record is replete with evidence of harassment motivated by Prowel’s sexual orientation. Thus, it is possible that the harassment Prowel alleges was because of his sexual orientation, not his effeminacy. Nevertheless, this does not vitiate the possibility that Prowel was also harassed for his failure to conform to gender stereotypes. See 42 U.S.C. § 2000e-2(m) (‘[A]n unlawful employment practice is established when the complaining party demonstrates that . . . sex . . . was a motivating factor for any employment practice, even though other factors also motivated the practice.”). Because both
scenarios are plausible, the case presents a question of fact for the jury and is not appropriate for summary judgment.
“In support of the District Court’s summary judgment, Wise argues persuasively that every case of sexual orientation discrimination cannot translate into a triable case of gender stereotyping discrimination, which would contradict Congress’s decision not to make sexual orientation discrimination cognizable under Title VII. Nevertheless, Wise cannot persuasively argue that because Prowel is homosexual, he is precluded from bringing a gender stereotyping claim. There is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not. As long as the employee – regardless of his or her sexual orientation – marshals sufficient evidence such that a reasonable jury could conclude that harassment or discrimination occurred ‘because of sex,’ the case is not appropriate for summary judgment.”
The panel, though, rejects the religious discrimination claim, because it was inextricably connected to his gender orientation: “In sum, the same principle that requires Prowel’s gender stereotyping claim to be submitted to the jury requires that his religious harassment claim fail at this stage. As explained above, Prowel’s gender stereotyping claim is not limited to, or coextensive with, a claim of sexual orientation harassment. Accordingly, the jury will have to determine the basis of the harassment. By contrast, Prowel’s religious harassment claim is based entirely upon his status as a gay man.”
Calef v. FedEx Ground Packaging System, Inc., No. 08-2031 (4th Cir. Aug. 27, 2009): As is often the case, state law (here, the West Virginia Human Rights Act) provided the plaintiff in this case — a carrier for FedEx who suffered with a damaged hand — broader relief than the Americans With Disabilities Act. After a four-day trial, the jury returned a verdict for plaintiff and the district court ultimately awarded her more than $1.2 million in damages, prejudgment interest, attorney fees, and litigation expenses.
In a nutshell, Calef injured her hand playing sports. Managers pressured her to quit given the severity of her injury, but she continued to report to work daily for a month. Then, on February 24, 2004, “Calef was abruptly summoned back to the terminal – [her manager] Hickman was on the phone and wished to speak with her. Hickman ordered Calef to ‘go home,’ file a claim for short-term disability benefits, and stay away from work until either he or Ryan called with addition al instructions.” She was ordered to take short-term (and eventually long-term) disability and not allowed to return to work, in spite of her desire to return to her duties. She lost out on a $50,000 salary and benefits.
Her mental distress testimony was outstanding: “Imagine being in a family for almost ten years and then they tell you they don’t want you anymore. I loved my job. I loved working for FedEx. I had made a determination that this is [where] I was going to retire . . . . I saw FedEx employees more than I saw my family and I did everything that they wanted me to do and [then] I’m injured. I’m still doing my job [but] they’re telling me go home. Go home until you hear back from us and then they don’t call. .. . And that’s it. The door closed.”
The panel, in a thorough 34-page opinion, affirms the judgment in her case. The panel finds that West Virginia law protects even persons with “temporary impairments” (if more than minor); and that the test under state law for “regarded as” liability (in contrast to the ADA) is objective only, and does not depend on a “mistaken” belief. The panel summarizes: “FedEx did not reassign Calef to another suitable position, at her regular salary and without any long-term detriment to her. Rather, FedEx forced Calef to ‘go home,’ file a claim for short-term disability benefits, and stay away from work until FedEx contacted her with addition al instructions. J.A. 1101. Calef was then forced to subsist on disability benefits, of finite duration, at a fraction of her salary, while FedEx spurned her requests to return to work. Indeed, whereas the Hospital had proactively sought to ascertain Stone’s condition and ability to safely work, FedEx simply proclaimed Calef to be disabled and prematurely abandoned its own reasonable accommodation process without fully examining whether Calef could remain on the job.” Truly excellent outcome, there!