The Lilly Ledbetter Fair Pay Act of 2009 righted an injustice to employees whose discriminatory compensation results from numerous, cumulative and small decisions that are not separately actionable under Title VII and other statutes. By that Act, Congress abrogated the unpopular 5-4 decision, Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 622 (2007), placing a short deadline on filing such claims. But the Act is not a cure-all for everything ailing employees, as two decisions this week by the Second and Tenth Circuits demonstrate.
A pension benefit plan attempts to wriggle out of a $1,571,723.73 judgment in favor of a participant with a novel defense: that it would violate ERISA's anti-alienation provision, § 206(d)(1), codified at 29 U.S.C. § 1056(d)(1), for the plan to pay the prevailing plaintiff what he is owed. The Second Circuit addresses and rejects this argument.
Today's ERISA question is an important one: when, for limitations purposes, does a claim accrue against a pension plan for miscalculating the participant's benefit? After considering several alternative formulae developed in different circuits and district courts, the Second Circuit holds that the claim begins only "when there is enough information available to the pensioner to assure that he knows or reasonably should know of the miscalculation."
Can increased scrutiny at work, including a disciplinary letter (later withdrawn), constitute a "materially adverse action" for a claim under Title VII's anti-retaliation provision, 42 U.S.C. § 2000e-3(a)? A jury said "yes," to the tune of a $500,000 judgment, but the Second Circuit - in a 2-1 decision - sides with the district court on these facts, and says "no."
The Second Circuit becomes the latest U.S. Court of Appeals to join the fray about whether to adopt what is known as a "presumption of prudence" under ERISA. The rule favors plan fiduciaries who allow investment in company stock in an employee stock ownership plan (ESOP), despite knowing that the company stock is very risky. In two divided opinions, the panel adopts the presumption of prudence over a sharply-worded dissent.
Two circuits weigh in today on the award of attorneys fees, with both outcomes favoring plaintiffs' counsel. One, from the Second Circuit, tackles an unreasonably low $204 fee for a successful trial on a claim of FMLA interference. The other, from the Fifth Circuit, reverses the award of Eastern District of Texas attorneys' rates in a Title VII case to a trial team from Oakland, California, where "an avalanche of unrebutted evidence" establishes that no addition al local lawyers could or would have taken the case.
Here's a lesson that some must re-learn, even twenty years after the passage of the 1991 Civil Rights Act that reformed the remedial provisions of Title VII: compensatory damages are an entirely separate kind of relief from make-whole back- and front-pay. The Second Circuit reverses a judge's order denying make-whole relief on the ground that the jury award of $300,000 in compensatory damages (for pain, suffering and loss of reputation) was enough.
Employers like mandatory arbitration policies, and avoidance of judicial review - until they don't. Here's a case from the Second Circuit (decided 2-1) that affirms an arbitrator's interlocutory decision to allow a putative Title VII pay and promotion class action, over the employer's objection that it did not consent to such a procedure.
The Second Circuit, in an non-precedential opinion, reverses summary judgment and remands an ADEA and New York State Human Rights Act claim back to the district court for trial. The panel concludes that something seemed to smell when a 59-year-old auto service department employee was dropped in favor of 36-year-old, . . . .and the best that the employer could produce was affidavits of witnesses - years after the fact - disparaging the employee's organizational skills, flexibility and attitude.
The Second Circuit becomes the first U.S. Court of Appeals to publish an opinion applying Ricci v. DeStefano, 129 S. Ct. 2658 (2009), to a reverse-discrimination challenge to a Title VII settlement agreement. In a 139-page opinion, including a special concurrence, the panel remands a nine-year-old case to reconsider whether the Justice Department and New York City Board of Education had a "strong basis in evidence" that the Board's tests and recruiting practices violated Title VII.