The D.C. Circuit, in a Title VII race-discrimination case, hands down a mixed decision for an Environmental Protection Agency (EPA) employee. It reverses summary judgment on her challenge of a suspension, holding that she was entitled to a trial where There was evidence that the lower-level decision maker who prompted the action made racially-biased remarks, especially one directed at the plaintiff. Yet it affirms dismissal of her termination claim, concluding that the plaintiff failed to exhaust the exacting administrative requirements that apply to federal-sector workers.
In two recent federal-sector race discrimination decisions, the D.C. Circuit - while ruling in the employer-agency's favor - issued opinions that may be even more useful for employees in future cases. Both opinions criticized short-cuts sometimes used by district courts to improperly weigh summary judgment records.
In the Supreme Court's only substantive Title VII case this term, the six-justice majority takes a plaintiff-friendly view of when a claim for constructive discharge accrues - on the date that the employee declares his resignation - while Justice Alito's special concurrence and Justice Thomas's dissent would start the limitations clock with the last discriminatory event. The court also dispenses with the requirement (imposed by some courts) that hostile working conditions be created by the employer with the intent of making the employee resign.
The Eighth Circuit today issued a short, cautionary opinion for plaintiffs who seek reinstatement (or front pay) in a discrimination case. Here, the employer - which the jury found liable for violating the employee's Title VII rights - escaped all but $1 of damages, where the district court found that reinstatement was not practical, and that the employee failed to make a strong enough case for front pay.
Today's Two-fer Tuesday in the Second Circuit: a pregnancy discrimination case is returned for retrial, in light of the intervening decision in Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015); and a panel holds that a state human-resource professional's opposition to changes in the EEO complaint-reporting procedures is not a "protected activity" under Title VII.
The Sixth Circuit holds, in an opinion that potentially expands remedies for Title VII claimants, that a back-pay award may include amounts that an employee could have earned from alternative employment, had the employer not engaged in discrimination or retaliation. Nonetheless, the court holds that the employee in this particular case failed to prove that she suffered such damages.
The Fifth Circuit affirms that an employee interviewed as part of a company's internal investigation into sex harassment complaints is protected under the "opposition" prong of the anti-retaliation section of Title VII. Yet it also holds that the witness must manifest at least a "reasonable belief" that what she witnessed rose to a violation of that act.
The Second Circuit, in reviving plaintiff Cathleen Graziadio's Family and Medical Leave Act (FMLA) interference and retaliation claims, reminds employers that they share responsibility with employees to comply with FMLA requirements, and cannot place the burden entirely on the employee or, as the panel here admonished, fail to cooperate with the employee altogether.
Here are two employment cases about second-chances. A plan participant who filed an ERISA claim too late under a contractual limitations period is rescued by a decision that the plan violated its duty by not telling the participant about the shortened deadline. The EEOC wins a second opportunity to advance claims on behalf of a class of female victims of harassment, in the wake of Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015).