The U.S. Supreme Court in Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010), held that ERISA plan participants who must sue to obtain review of a benefit denial can be awarded attorney's fees under 29 U.S.C. § 1132(g)(1) by achieving "some degree of success on the merits," regardless of whether they ultimately win the whole case. The First Circuit today, in a 2-1 decision, issues the first precedential appellate-level opinion in holding that fees may be awarded even if the participants' entire victory is having their cases remanded back to the plan administrator for reweighing under the correct standard of review.
Sometimes, when it's clear that an employer never seems to promote minority employees - and the reasons for that failure seem really thin - then There may be a triable case of race discrimination. The First Circuit reverses summary judgment for a correctional officer described as "always perform[ing] at an outstanding level," and an "[e]xcellent worker" with "awesome leadership, and great work ethics," passed over for a promotion by a white employee with a recorded history of "very poor work habits." The court holds, in particular, it is not necessarily relevant that the decision makers were unaware of the employee's specific race, ethnicity or national origin, when the record showed that no minorities advanced.
The First Circuit holds that ten African American police officers presented sufficient evidence to prove that police department drug testing, using hair samples, had a disparate impact on the basis of race, in violation of Title VII. The parties are remanded to the district court to determine, among other things, whether the use of hair samples is a reliable test, or generates too many false positives among black test subjects.
Often, employees must fight and fight again to enforce their rights. A woman denied employment as a firefighter in 2001 sued to corps for sex discrimination in 2005. Four years later, she obtained a settlement to employ her as a "transitory" firefighter until a slot opened up in the training academy. But she was compelled to sue once again when her sergeant allegedly harassed her in retaliation for bringing the original complaint. The First Circuit holds that she states a claim for violation of the Title VII anti-retaliation section 42 U.S.C. § 2000e-3(a).
A common scenario in employment cases is the manager or supervisor who overreacts to a blow-up at work by firing the employee. What the employer may deem as a measured response to insubordination can, after the fact, be held by a court or jury to be the culmination of unlawful discrimination or retaliation. In this case, the First Circuit returns just such a case for a trial, reversing summary judgment entered against a nurse who was fired after complaining that she was being worked beyond her restrictions.
A senior executive wins a jury trial for retaliation under the ADEA and Massachusetts state law, with an award of back and front pay, emotional distress damages and liquidated (double) damages. The First Circuit substantially preserves the judgment against the employer and affirms injunctive relief to restore plaintiff to the company's benefit plans, though it tamps down the compensatory damage award on grounds of excessiveness.
An employee with a 31-year history is fired at age 56 for allegedly failing to maintain sanitary conditions in a pharmaceutical plant, and sues for age discrimination under the ADEA in Puerto Rico law. Reversing summary judgment, the First Circuit finds relevant events that occurred after the employee was fired, particularly that his 34-year-old replacement was not fired after similar violations - including "a string of incidents occurred in which animals, including numerous insects, a lizard, and rats, entered the plant."
The management decision in this case not to separate an employee with a sex-harassment complaint from the alleged harasser (who was also the employee's supervisor) puts the employer in a vice - it now faces a trial for both sex harassment and retaliatory harassment under Title VII and Puerto Rican law. The First Circuit specifically recognizes that a supervisor who ratchets up work and otherwise intensifies harassment against an employee for refusing to yield to sexual demands may create a new claim for retaliation.
Today we log two wins for ADA "regarded as" disability discrimination claimants. In the First Circuit, the panel holds that a district court too hastily dismissed a complaint of disability discrimination, alleging that the employer refused to assign a mentally-ill employee anywhere in the workplace. In the Sixth Circuit, the panel (in an unpublished opinion) astoundingly overturns a jury verdict for the employer - and orders entry of judgment for the employee - where the company placed the plaintiff on involuntary medical leave based solely on an unclear state-court order and without an independent examination of the employee.
One of the critical stages in many disability discrimination cases is when the employee gets a new manager or supervisor, who does not understand - or is insensitive to - an accommodation formerly extended to a person with a disability. As this First Circuit case reveals, a botched switch in the gears can create a triable issue of fact for a jury about whether the employee was denied reasonable accommodations.