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Halpert v. Manhattan Apartments Inc., No. 07-4074 (2d Cir. Sept. 10, 2009); Mikula v. Allegheny County, Pennsylvania, No. 07-4023 (3d Cir. Sept. 10, 2009); Hennagir v. Utah Department of Corrections, No. 08-4087 (10th Cir. Sept. 10, 2009)

| Sep 9, 2009 | Daily Developments in EEO Law |

The Second Circuit today recognizes ADEA liability for employment decisions made by independent contractors of an employer. The Third Circuit reverses itself in a pay discrimination case, vacating summary judgment and remanding under the Lilly Ledbetter Fair Pay Act. The Tenth Circuit nixes the claim of a disabled physician’s assistant under the ADA who cannot pass a physical safety training requirement.

Halpert v. Manhattan Apartments Inc., No. 07-4074 (2d Cir. Sept. 10, 2009):  If an employer uses an independent contractor to recruit and hire staff, what liability does it have for the contractor’s acts of discrimination? Under the ADEA, the Second Circuit holds today that such discrimination may be imputed onto the employer.  Here an agent for a realtor (MAI), named Brooks, “interviewed Halpert and allegedly told Halpert that he was ‘too old’ for a position showing rental apartments.”

The district court held that the independent contractor was not an agent of the “employer” for purposes of the ADEA, but the Second Circuit reverses:

“A company is not, of course, liable for the hiring decisions made by independent contractors who are hiring on their own behalf. Nor is a company liable simply because a job applicant unreasonably (and incorrectly) believes that he is interviewing for a job with the company and that the independent contractor has the authority to make hiring decisions on behalf of the company. General principles of agency law determine whether the independent contractor or other third party has been given actual authority to hire on behalf of the company, or whether the company, through its own words or conduct, has created apparent authority in that individual in the eyes of the job applicant. Significantly, however, the company’s potential liability does not depend on whether the individual hiring for the company as its agent is an employee or an independent contractor under the broadest meaning of those words as they are determined by the common law agency test. An independent contractor can act as an agent, or an apparent agent, of the company for the limited purpose of interviewing and potentially hiring job applicants while still retaining his independence for any number of other purposes.” [Citations and footnote omitted.]

The panel holds that there is a genuine issue of material fact whether Brooks was hiring for MAI instead of on his own account.  The court finds relevant that “Halpert has presented evidence (1) that Laura Nielson, the career counselor who arranged the interview for Halpert, believed that Halpert would be interviewing for a position with MAI, not Brooks; (2) that the interview took place at MAI’s offices; and (3) that after the interview, Brooks and another MAI associate told Nielson ‘they were looking for someone younger.'”

Mikula v. Allegheny County, Pennsylvania, No. 07-4023 (3d Cir. Sept. 10, 2009): The employee Ms. Mikula was denied a requested raise in October 2005, complained to HR of the denial as sex discriminatory in March 2006 and received an investigative report in August 2006 finding no discrimination.  On April 17, 2007, she filed a charge.  The district court found that the charge was untimely for a claim of pay discrimination under then effective holding of Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007). The district court also held that the only event occurring within 300 days of the charge (i.e., learning the investigative report results) was not a pay decision.

While the Third Circuit originally affirmed this decision in a pro se appeal, a petition for rehearing joined by amici American Civil Liberties Union, American Civil Liberties Union of Pennsylvania, National Partnership
for Women & Families, and Women’s Law Project gets the decision overturned.  Under the Lilly Ledbetter Fair Pay Act, the court holds that the denial of the raise was timely:

“Despite our earlier decision, we now hold that the failure to answer a request for a raise qualifies as a compensation decision because the result is the same as if the request had been
explicitly denied. See Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007, 1013 (7th Cir. 2003) (allowing a claim to proceed where the employer gave raises only to similarly situated white employees). We reaffirm, however, our earlier conclusion that the August 2006 investigation report does not constitute a compensation decision or other practice. While, in the abstract, the result of the investigation affected Mikula’s compensation, finding that an employer can be liable under Title VII for investigating an internal discrimination complaint and communicating its findings to the employee would have the unfortunate effect of encouraging employers to ignore such complaints.”

Hennagir v. Utah Department of Corrections, No. 08-4087 (10th Cir. Sept. 10, 2009): A physician’s assistant (PA) with multiple disabilities was hired in 1997 to work in a state prison. “When she was hired, DOC did not require Peace Officer Standards and Training (‘POST’) certification for medical and clinical staff at Gunnison. In 2001, however, DOC sought to enter such staff into Utah’s Public Safety Retirement system (‘PSR’). To enroll in PSR, all covered positions in the agency must be POST certified. POST certification includes an assessment of physical strength, flexibility, and endurance.” The prison demanded POST certification out of concern that even a non-correctional prison employee could be threatened or physically overpowered by an inmate.

The plaintiff was not cleared to obtain POST certification:

“Gunnison medical staff began attending a POST ‘academy’ in October of 2002. Hennagir attended, but was given permission not to participate in the physical activities because of her medical condition. Hennagir complains of a number of impairments, including lupus, osteoarthritis, rheumatism, avascular necrosis, Sjögren’s syndrome, and fibromyalgia. She has had both hips replaced and underwent surgery on her left shoulder. As a result of these maladies, Hennagir is limited in activities such as sitting, bathing, sleeping, lifting, bending
and flexing, climbing stairs, running, and biking.”

The employee was unable to relocate into another job and was eventually terminated. She brought suit under the ADA.

The district court found, and the Tenth Circuit affirms, that the POST certification was an “essential function” of the job under the ADA, and that the plaintiff’s inability to meet the standard meant that she was not a “qualified individual” under the ADA. The court noted the potential danger to the employee:

“[T]he risks involved in direct inmate contact strike at the heart of another factor used to determine whether a job function is essential: the consequences of not requiring an employee to perform the function. See 29 C.F.R. § 1630.2(n)(3)(iv). Sadly, DOC’s fears regarding the physical safety of its medical and clinical staff were realized in 1999, when a medical technician was attacked by an inmate during the course of her duties. That incident led the State Risk Management Division to recommend a POST certification requirement. The common sense nature of this recommendation is patent: Because the potential consequences of an inmate attack are incredibly severe, it is reasonable to require employees who have direct contact with inmates to undergo training on responding to these dangerous scenarios.”

The court also affirms summary judgment on the issues of reasonable accommodation and retaliation.

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