Hats off to two U.S. court of appeals’ reversals of summary judgment this week (so far)! In the Second Circuit, a thorough opinion signed by Judge Kearse sends two Title VII claims for harassment and retaliation back for trial. The Fourth Circuit, in an unsigned non-precedential opinion, remands an EEOC case involving a benefits policy based on age. And the U.S. Supreme Court grants cert today in a Title VII case that presents an atypical retaliation scenario.
Kaytor v. Electric Boat, No. 09-1859 (2d Cir. June 29, 2010): A 33-year veteran of this employer contends that in her final years, she became the focus of too much unwanted attention by a manager (named McCarthy), then undergoing a divorce, who made uncomfortable remarks and leered at her.
“Although he never touched Kaytor in a violent or sexual way, never asked her for sex, and never asked her out on a date, in 2004 McCarthy began making inappropriate comments to her and engaging in sexually suggestive behavior. Although he frequently made fun of women, especially of their weight, and made comments about their bodies, McCarthy paid Kaytor compliments on her clothing and told her she looked good for a woman her age. Some of his comments were not in and of themselves offensive, but on many occasions Kaytor perceived McCarthy to be staring at her body and leering at her . . . ” [record citations omitted].
The sexual behavior, as their relationship between McCarthy and Kaytor soured, morphed into violent language, with McCarthy outwardly expressing his wish to “choke” Kaytor, or see her in her “coffin.” When she threatened to report McCarthy’s conduct to a senior vice president, Kaytor testified that he got a “horrid” look on his face and threatened to kill her.
The final straw was a holiday gift of a potted plant, a pussy willow, with a handprinted card hoping that it “brings you pleasure in the years ahead.”
Her complaints through channels of harassment led to her immediate transfer to a new supervisor. She was placed in an office with peeling, lead-laced paint; assigned a computer supposedly booby-trapped to log her onto prohibited websites; given fewer and less-prestigious duties; and publically yelled-at and embarassed by her new boss.
The Second Circuit reverses summary judgment as to both the harassment and retaliation claims. On the former, the panel holds that the district court erred when it (1) disregarded summary judgment evidence of sexist statements that were not directed at plaintiff, or that were seemingly gender-neutral, that would have been admissible to negative a non-gendered interpretation of McCarthy’s behavior; (2) excluded evidence of threats of violence, which were probative of McCarthy’s hostility at the plaintiff for repelling his advances; (3) drew inferences in favor of the defendant about the frequency of McCarthy’s comments; (4) also drew inferences against the plaintiff about the pussy-willow incident, which a trier of fact could construe as a cheap and filthy sexual innuendo.
The panel also affirms summary judgment on a retaliatory termination claim, holding that the record established as a matter of law that the termination was motivated by the employee’s refusal to submit to a mental health examination. But it reverses summary judgment on a second retaliation claim, based on her transfer to worse conditions after complaining to management about the harassment, finding that the reassignment to a position with no work to do could (to a jury) be reasonably deemed a demotion.
EEOC v. Baltimore County, No. 09-1688 (4th Cir. June 28, 2010): Employees in Baltimore County hired at age 59 or younger join an Employment Retirement System (ERS) to which they contribute. According to the opinion, “All employees must contribute a percentage of their salary to the ERS, but that percentage varies based on the employee’s age at the time the employee joins the system. § 5-1-203(1). For example, employees who join the ERS at age forty contribute 5.57% of their salary to the ERS, while employees who join at age twenty need only contribute 4.42%.”
The EEOC challenged the age-biased differential, and the Fourth Circuit holds that on a truncated record there was a triable issue of fact about the motivation for this policy. The district court granted summary judgment based, according to the Fourth Circuit, on a misapprehension of the policy. The district court believed that the policy was financially (rather than age) motivated because older employees would have less time to make contributions. But the panel notes that
“under the express terms of the ERS, two new-hires with the same number of years until retirement age, and therefore the same time value of money, can be required to pay different contributions into the ERS. For example, if a twenty-year-old new-hire and a forty-year-old new-hire enroll in the ERS as correctional officers at the same time, they have the same number of years until retirement eligibility. However, the forty-year-old must contribute 5.57% of his annual salary while the twenty-year-old need only contribute 4.42%. This disparity is not justified by the time value of money because both employees contribute for the same twenty years.”
The panel remands for argument over whether the policy is “justified by permissible financial considerations,” or whether it is invalid for two reasons not previously advanced by the EEOC, i.e., “(1) it reduces older workers wages because of their age and (2) it violates 29 C.F.R. § 1625.10(d)(4)(i).”
Thompson v. North American Stainless, LP, No. 09-291 (U.S. S. Ct. June 29, 2010): Last year, the Sixth Circuit held 10-6 en banc that Title VII does not provide a direct cause of action for victims of third-party retaliation, when they themselves did not oppose or participate in proceedings against discrimination. In this case, the company fired the fiancee of the employee who filed a sex-discrimination charge with the EEOC, allegedly in retaliation. (See my prior blog posts on this case here and here.) The issue was not whether the employee who filed the EEOC charge could bring such a claim (the answer, presumably, would be “yes”), but whether the fiancee himself could do so in his own name. The Supreme Court granted cert in this case and will presumably decide the issue next term. Following the lead of Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (a unanimous decision signed by Justice Thomas), my surmise is that the Supreme Court should and will construe § 704(a) expansively and hold that there is liability to third-parties who are collaterally injured by a Title VII violation.