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.
Here's a nice, simple reminder for HR professionals and laid-off employees: that when an employer can not line-up behind a single reason (or even a single decision maker) for a termination decision, and instead keeps changing its mind, the reason lurking beneath may well be discrimination. The Sixth Circuit sends an age-discrimination claim back for trial where the employer allegedly switched stories midstream, from contending that the employee's job was eliminated to arguing that the termination was based on a negative performance evaluation.
In a non-precedential opinion that may nevertheless be important to litigators, a Fifth Circuit panel splits three ways on whether an employee must continue to defend her Title VII prima facie case under the McDonnell Douglas rubric after the employer presents a legitimate, non-discriminatory reason for an employee's termination. The courts continue to disagree on this issue even decades after the Supreme Court first framed-out this method of proof.
"Steven Smothers worked for Solvay Chemical, Inc. ('Solvay') for 18 years until Solvay fired him, ostensibly because of a first-time safety violation and a dispute with a coworker." The Tenth Circuit reverses summary judgment in this ADA and FMLA case, holding that the employee created a genuine dispute of material fact about whether Solvay singled him out for harsher treatment than his coworkers. The company, according to the summary judgment record, committed the rookie HR mistake of not allowing the employee to present his side of the story.
Racial discrimination can be manifested subtly in numerous decisions, and slight deviations from procedure, over time. The Sixth Circuit reverses summary judgment in this Title VII and Ohio state law case, holding that an African-American plaintiff fired during a reduction-in-force (RIF) was entitled to a trial over whether the decision-maker - who allegedly gave minority employees harsher reviews - was motivated by race. An unusual factor here is that it was the employee rather than the employer who wanted to limit the range of comparable employees in evidence. The panel also considers the probative of "There discrimination" evidence against the decision maker.
I think we have the right sign for the Seventh Circuit this week. The same day that the court interred the rule against using an employee's "self-serving" testimony to resist summary judgment in employment-discrimination cases, another panel of the same court helps correct a lingering misunderstanding about what it means for an employee to use a "mosaic" of circumstantial evidence under Title VII - and also backs off a bit from a strict direct/indirect framework of proof enforced by that circuit. Such cases may help district courts reach more sensible decisions at the summary judgment stage.
Once again, a federal court of appeals is compelled to reverse summary judgment in a discrimination case where the employer brazenly offered no reason for its decision to terminate the plaintiff. The Seventh Circuit here remands claims of ADA discrimination and retaliation for an employee diagnosed with MS. (The ADA retaliation claim specifically concerns a manager who is openly resentful of the plaintiff's disability, all but accusing the plaintiff of malingering.) Judge David Hamilton, concurring, also explains why the common McDonnell Douglas method of proof may be backwards, essentially requiring the employee to guess at the employer's defense before it is offered.
Two women sales representatives who were denied promotions by hardware giant Hilti get a renewed opportunity to prove at trial that they were denied promotions because of sex, thanks to a Tenth Circuit decision on Tuesday. Among other evidence in the record: the male manager evaluating one plaintiff allegedly told her that tools "are like guns for men" and using them is "almost like second nature."
The Sixth Circuit, in a closely-watched EEOC case, reverses - in a 2-1 decision - judgment on the pleadings and summary judgment in a systemic Title VII sex discrimination case, challenging the company's alleged failure to fire women drivers. The panel finds that the EEOC stated a claim for pattern-or-practice liability, and that the district court erred on a host of rulings.
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."