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Sixth Anniversary; Marion County Coroners Office v. EEOC, No. 09-3595 (7th Cir. July 27, 2010); Corbitt v. Home Depot U.S.A., Inc., No. 08-12199 (11th Cir. July 27, 2010)

| Jul 26, 2010 | Daily Developments in EEO Law |

This week marks six years of blogging EEO law at this site. In a curious wrinkle of anti-discrimination law, claims of racial and other discrimination by governmental, policy-making officials are governed not directly by Title VII, but by the Government Employee Rights Act (GERA), 42 U.S.C. § 2000e-16a to 16c, covering any “individual chosen or appointed . . . to serve the elected official on the policymaking level.” Such employees may obtain relief though an administrative hearing before an ALJ, with review by the EEOC, and administrative review before the U.S. Courts of Appeals. Here’s a rare, reported instance of such a case. And an Eleventh Circuit en banc Title VII case evaporates with a settlement.

Marion County Coroners Office v. EEOC, No. 09-3595 (7th Cir. July 27, 2010): The employee here was the chief deputy coroner of Marion County, Indiana, John Linehan, who is white and who accused the elected county coroner Kenneth Ackles (who is African-American) of dropping him because of race.  The chief deputy reportedly does the day-to-day work of running the office. Linehan testified that Ackles said shortly after he was sworn in that he “really needed to find a way to get more African-Americans into the Coroner’s Office,” especially as deputies.

Though Linehan attempted to carry out Ackles’ wishes, the two men got into some rough-and-tumble over disciplinary matters concerning a black woman deputy (Alfarena Ballew), who was accused (among other things) of failing to arrive promptly on the scene, failing to properly handle evidence, arriving late at a mandatory staff meeting, and sending a defamatory anonymous letter to the city council about Linehan. Linehan also got grief for calling the police in on an in-office theft – concerning a janitor – that the coroner thought could be handled quietly in-house. Linehan filed a complaint with human resources about the hostile work environment that he’d suffered in his office. Weeks later, Linehan was dropped as chief deputy and replaced by Ballew.

There was also the following exchange after Linehan left:

“Ackles and Ballew cancelled the coroner’s office’s contract with Forensic Pathology Associates (FPA), a company that performed autopsies for the county. They ultimately hired one non-FPA pathologist and four FPA support staff, all of whom were African-American, and declined to hire any FPA pathologists or other support staff, all of whom were white. During this time, a receptionist overheard Ackles and Ballew discussing the pathology contract. Ackles ‘was kind of laughing and said, “I will put my people where they belong.”‘ Ballew was ‘kind of laughing back’ and responded, ‘ “We’re in charge?” and he said, “Yup.” ‘ “

The ALJ who tried the case found Ackles not credible, his performance-based rationale for firing Linehan  pretextual, and concluded that Linehan had suffered race discrimination (demotion and eventual termination) and retaliation. The ALJ awarded $200,000 in compensatory damages.

The Seventh Circuit affirms liability, but reverses on damages. In administrative-review mode, the panel affirms (as supported by substantial evidence) the finding that “Ackles’ stated reason for taking action against Linehan – namely, that Ackles had ‘lost confidence and trust’ in Linehan – was pretextual.” The finding was adequately based on Ackles’ “lack of credibility, combined with his stated preference for employing African-Americans and his actions taken in furtherance of that goal.”  It also brushes back a challenge to the EEOC’s jurisdiction under GERA, holding that Linehan remained an “individual chosen or appointed . . . to serve the elected official on the policymaking level” even though he was demoted shortly before he was fired outright.

The court stops short of full affirmance, though, holding that a $200,000 compensatory damage award was unsupported by the record.  “The testimony on Linehan’s suffering was extremely brief and only indicated that Linehan had undergone ‘[w]eekly’ therapy sessions for ‘[s]everal months’ for ‘[s]ituational depression.'” Thus, “Based on our review of the evidence and comparable cases, we believe that a remittitur to $20,000 would keep the award within rational limits. If the respondents do not consent to the remittitur, there will be a new hearing on the issue.”

Corbitt v. Home Depot U.S.A., Inc., No. 08-12199 (11th Cir. July 27, 2010): In the flame-out of the week, apparently the parties settled this same-sex harassment and retaliation case, heading off an en banc hearing and decision by the full Eleventh Circuit. The net effect of today’s order dismissing the appeal is to leave the prior panel opinion vacated (Corbitt v. Home Depot U.S.A., Inc., 589 F.3d 1136 (11th Cir. 2009)). See my prior entry here

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