Two good results for employees today: the Ninth Circuit revives part of a case, for injunctive relief, against a mining operation and the Navajo Nation for discrimination against non-Navajo job applicants; and the Eighth Circuit affirms a jury verdict for an ADEA plaintiff who unsuccessfully sought a promotion.
EEOC v. Peabody Western Coal Company, No. 06-17261 (9th Cir. June 23, 2010): As the panel summarizes, “The Equal Employment Opportunity Commission (‘EEOC’) appeals various rulings of the district court in its suit against Peabody Western Coal Company (‘Peabody’). Peabody leases mines from the Navajo Nation (‘the Nation’), and maintains a preference for employing Navajo workers at these mines. EEOC alleges that in maintaining its employment preference Peabody discriminates against non-Navajo Indians, including two members of the Hopi Nation and one member of the Otoe tribe, in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1).” The Ninth Circuit had already once reversed the district court in this case, on Fed. R. Civ. P. 19 and jurisdictional grounds (Peabody II). On this appeal, the panel reviewed the district court’s entry of summary judgment.
Peabody mined on Navajo land, and in the 1960s entered into leases with the U.S. Secretary of the Interior that included Navajo employment preference provisions, which remained in effect at the time relevant for this action. “EEOC filed this suit against Peabody in June 2001, alleging that Peabody was unlawfully discriminating on the basis of national origin by implementing the Navajo employment preferences contained in the leases.” The lawful scope of those preferences was targeted by the EEOC: “EEOC’s position throughout this litigation has been that the Indian preference exception of Title VII, § 2000e-2(i), permits discrimination in favor of Indians living on or near a particular tribe’s reservation, but does not permit discrimination against Indians who live on or near that reservation but are members of another tribe.” The EEOC sought both injunctive relief and damages.
The panel takes on two of the grounds that the district court cited while granting summary judgment to the defendants: namely that the “(1) EEOC was seeking affirmative relief against the Nation in its amended complaint, and that the Nation therefore could not be joined under Rule 19; [and that] (2) the Secretary was
a necessary and indispensable party for whom joinder was not feasible.”
As to the first, the panel holds that whether or not the complaint sought affirmative relief against the Navajo Nation, the Nation could still be joined under Rule 19. “Because we had held in Peabody II that joinder of the Nation was feasible despite the unavailability of injunctive relief against it, the proper response of the district court would have been simply to deny EEOC’s request for injunctive relief.”
On the second point, the panel essentially agrees with the defendants. For monetary relief, the Secretary needed to be joined, because “Peabody is caught in the middle of a dispute not of its own making.” The Navajo preferences were imposed as a condition on the leases by the U.S., and so
“[i]f the district court were to hold that the Navajo employment preference provision violates Title VII and to award damages against Peabody, it would be profoundly unfair if Peabody could not seek indemnification from the Secretary. It would be similarly unfair if the district court were to grant an injunction requiring Peabody to disregard the preference provision, but leaving the Secretary free, despite the court’s holding, to insist that Peabody comply with it.”
Thus the Secretary was necessary because his office “mandated the provisions and continues to exercise oversight over the leases. A public entity has an interest in a lawsuit that could result in the invalidation or modification of one of its ordinances, rules, regulations, or practices.” And the EEOC was barred by statute from joining him: “EEOC is prevented by 42 U.S.C. § 2000e-5(f)(1) from filing suit against the Secretary on its own authority.” That authority resided solely with the U.S. Attorney General.
But the inability to join the Secretary did not require the dismissal of Peabody, at least for injunctive relief: “It would be profoundly unfair for a court to award damages against Peabody while allowing Peabody no redress against the government. . . . [Yet] the availability of prospective relief through a third-party complaint under [Federal] Rule 14(a) means that ‘in equity and good conscience’ EEOC’s suit against Peabody should be permitted to proceed.” It holds that the doctrine of sovereign immunity does not protect the Nation in a suit brought by a U.S. government agency, and that Peabody and the Nation if necessary could seek interpleader relief from the Secretary. Finally, the panel avoids any ruling on the merits of the claims and remands them for further development.
Jones v. National American University, No. 06-9300 (8th Cir. June 23, 2010): The jury awarded $17,565 to a frustrated applicant for a promotion under the ADEA, and found willfulness, so (with doubling) totalling $35,130. The defendant challenged the verdict on evidence-admissibility issues, jury instructions and sufficiency of the evidence grounds, but the panel rejects all of these and upholds the judgment.
The panel holds:
1. That the district court did not abuse its discretion in admitting job descriptions, concluding that two witnesses’ testimony that the descriptions were posted at the job site was sufficient to establish authentication under Fed. R. Evid. 901(a) and that the descriptions were admissible as party-admissions under Fed. R. Evid. 801(d)(2)(a).
2. That the defendant’s EEOC position statement was properly admitted for impeachment purposes, even though the district court earlier excluded the EEOC file in its entirety.
3. That the jury could have found that the reason given by the defendant at trial for not promoting the plaintiff (lack of management skills) contradicted the reason given to the EEOC (sub-par performance in her current position), and was more likely than not a pretext for its actual reason — that plaintiff was age 56 — in the context of the entire record (that the successful candidate was more than two decades younger than the plaintiff and also lacked management experience, and the decision maker allegedly said of another candidate that “I’m not sure we want a grandpa working with our high school students”).
4. That the district court did not err in refusing an “honest belief” instruction, and by instructing the jury that “[p]retext may be shown with evidence that the employer’s reason for its employment decision has changed substantially over time.”