A regular theme on this blog is for lawyers to keep an eye on remedies at all times. A pair of non-precedential Eleventh Circuit cases arising from the same trial illustrate the point. In the first, a fully-tried Title VII sex harassment case ends with a liability verdict against the employer, but with $0 in damages. Yet creative lawyering saves the day, preserving prevailing-party status by obtaining a reformation of the employee's personnel file. In the second, the panel remands for reconsideration of attorney's fees in light of an unaccepted Rule 68 offer of judgment.
The Fourth Circuit holds (2-1) that there was sufficient evidence for a jury to find liability under the ADEA for a 60-year-old plaintiff with over 30 years of service fired for an arguable, possibly spurious reason. The panel majority uses the occasion to tweak the oft-cited truism that courts do not sit as "super-personnel departments."
The original Title VII was centered on injunctive relief, principally putting protected-class employees to work. So this Fifth Circuit case is a valuable one, reminding us of the roots of the law and why reinstatement remains the presumptive remedy in discrimination cases.
The Eighth Circuit affirms a $250,001 judgment - $1 compensatory and $250,000 punitive damages - for a black "deckhand on the Cora, a barge that dredges sand from the Arkansas River," whom a jury found suffered a racially hostile work environment caused by his foreman.
Through careful advocacy, a former factory worker with lifting restrictions preserves most of his jury verdict in an ADA discrimination case - $181,522.61 in back pay and $92,000 in compensatory damages - and is remanded to the district court for an award of front pay.
The Tenth Circuit produces a clear circuit split on an issue now poised for Supreme Court review: must a ADA plaintiff challenging an employer's failure to reasonably accommodate a disability prove an adverse employment action? The panel splits two-to-one on this issue, in favor of the employer.
Title VII requires that employers exercise due care to prevent sexual harassment of their employees by customers. The EEOC prevailed at trial on just such a claim, winning a $250,000 verdict for a woman shelver who - a jury found - was stalked for over a year by a male customer, while Costco took inadequate measures to protect her. The Seventh Circuit upholds the verdict, and even remands the case back to the district court for award of more back-pay relief.
There are several lessons in this Seventh Circuit decision, reviewing a summary judgment and jury verdict in a Title VII and § 1983 case involving state university police officers. First, the court continues to consider the use of the N-word in the workplace to be virtually per se racial harassment. Second, the filing of false reports against an employee may be deemed a materially adverse action, for purposes of retaliation. Third, even if the law mandates strict liability against an employer for retaliation by a supervisor, the jury must still be instructed on the theory or it may be waived.
The First Circuit affirms a $2.6 million judgment for race discrimination against the Massachusetts Bay Transportation Authority, where the jury was presented with direct evidence involving "[t]hree of the MBTA's supervisory staff who either concurred in [plaintiff]'s dismissal or were involved in the investigation of the January 25th altercation, had demonstrated racial animus towards her."
ADA opinions released in the Eighth and Ninth Circuits today underscore that the burden of proof, ultimately, is always on the employee to show that the employer failed to provide a reasonable accommodation. These serve as a reminder to disabled employees and counsel that when seeking reassignment as an accommodation, it is vital to request the reassignment clearly and to set one's sights realistically.