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Brzak v. United Nations, No. 08-2799 (2d Cir. Mar. 2, 2010); Lake v. Yellow transportation, Inc., No. 09-1392 (8th Cir. Mar. 2, 2010); Murphy v. Comer Oil U.S.A., No. 07-60756 (5th Cir. Feb. 26, 2010)

| Mar 1, 2010 | Daily Developments in EEO Law |

The United Nations and its staff win immunity in a sex-discrimination lawsuit, the Eighth Circuit sends a race-discrimination case back for trial, and the Fifth Circuit sadly vacates a progressive panel opinion for rehearing.

Brzak v. United Nations, No. 08-2799 (2d Cir. Mar. 2, 2010): In a Title VII (and sundry other claim) action against the UN, its former diplomats and staff, the Second Circuit holds that the Convention on Privileges and Immunities of the United Nations (1946; ratified by the United States,1970) immunizes these defendants. The plaintiffs contended that because the treaty was supposedly not self-executing, then in the absence of domestic enabling legislation, the CPIUN immunity was ineffective in U.S. courts. The panel holds, however, that once the United States deposited its ratification papers with the U.N., it affirmed that our nation recognized the treaty immunity and that immunity took effect upon ratification. This view was reinforced, according to the panel, by the ratification history and the position taken by the U.S. Attorney in Manhattan. Meanwhile, individual staff members were held “functionally” immune, because their acts as alleged by the plaintiff were undertaken in the exercise of their U.N. functions (e.g., office management, work assignments). The only claim that was on the cusp was a battery claim, under state law, but the panel elided the immunity question by holding that the district court could dismiss this claim as lacking supplemental jurisdiction. Finally, the panel rejected a host of federal constitutional challenges to diplomatic immunity, finding that the provenance of this doctrine long pre-dates even the constitution.

Lake v. Yellow transportation, Inc., No. 09-1392 (8th Cir. Mar. 2, 2010): According to the opinion, the employer maintained three categories of employees:  casual, probationary, and regular (the last category covered by a collective bargaining agreement).  The plaintiff — who is African-American — graduated from the first to the second group, but was then fired during the 30-day probationary period, allegedly for attendance reasons. The employer recorded Lake as unavailable when called for two days and tardy five days, and cited time-card violations.

The Eighth Circuit reverses summary judgment on his Title VII and § 1981 claims in a brief opinion.  The district court erred, the panel holds, when it held that the attendance deficiencies meant that the employee was not “otherwise qualified” under the McDonnell Douglas rubric: ” . . . Lake is not required to disprove Yellow’s reason for firing him at this stage of the analysis. . . .  If he were, the McDonnell Douglas burden-shifting analysis would collapse into the second element of the prima facie case. . . . Lake establishes his prima facie case if, setting aside Yellow’s reason for firing him, he was otherwise meeting expectations or otherwise qualified.”

It also holds that the plaintiff presented a genuine issue of material fact on pretext: “Yellow contends that Lake’s unavailability during probation is immaterial, insisting it fired Lake primarily for tardiness and no other probationary employees were tardy. . . . But drawing the inferences in favor of Lake, Kraus’s statements of expectations for probationary employees do not distinguish tardiness and unavailability. Lake was fired under Yellow’s policy, and white employees were not.”

Finally, I previously posted on a highly-progressive class action decision out of the Fifth Circuit, Murphy v. Comer Oil U.S.A., 585 F.3d 855 (5th Cir. 2009) (blog post of Oct. 19, 2009), reversing dismissal (on justiciability grounds) of an immense case under Mississippi state-law action challenging the production and use of hydrocarbon fuels and their effect on global warming.  I regret to report that the full Fifth Circuit (or, at least the nine non-recused active judges out of 16) has vacated this panel decision and ordered rehearing (Order of Feb. 26, 2010). Given the magnitude of the case, I suppose that development cannot come as a total surprise.

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