Here's two decisions from the Eighth Circuit coming off Rule 50 orders granting judgment as a matter of law to employers. In the first, the court reverses, holding that There was sufficient evidence for a jury to find that an employee was constructively discharged by being knocked down from a title as finance coordinator to the board to a job in food service. In the second, an FMLA retaliation case, the plaintiff does not prevail -- but the court says something very important about proof at trial.
For employers and their counsel who insist that Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), is a silver bullet against Title VII discrimination class actions, today's decision in the McReynolds case was not good news. The Seventh Circuit sweeps past the employer's arguments and holds that the district court erred by not certifying a Rule 23 class action in a disparate-impact race discrimination case.
On the heels of last week's Ninth Circuit decision in Shelley v. Geren, No. 10-35014 (9th Cir. Jan. 12, 2012), here's another federal-sector case involving a denial of promotion, brought under Title VII and alleging race and sex discrimination (and retaliation). The panel reverses summary judgment in part, finding that the plaintiff's unqualifiedly superior qualifications for the position - combined with the thinness of the agency's explanation for its decision - presented sufficient evidence for a trial.
As we approach the final stretch of 2011, I can report two more appeals of race discrimination cases where the plaintiffs (more or less) came out on top. In the Fifth Circuit, the panel reverses summary judgment in a Title VII reverse-race termination case, finding that the plaintiff succeeded in building a plausible claim that her employer lied about the reasons for her termination. And in the Eleventh Circuit, a now-15 year-old, § 1981 case - which took an intervening trip to the U.S. Supreme Court - comes to what may be its final resting place, with the plaintiff keeping a winning verdict and judgment, while losing $1 million in punitive damages.
The Fifth Circuit takes up the question of when it might constitute race discrimination (under 42 U.S.C. § 1981) for a union not to pursue a theory of race discrimination in a grievance proceeding. The Fifth Circuit affirms summary judgment of the local union and union representative, holding that it was not an "adverse action" in this case, but in the particular setting where the employee himself got to present a discrimination theory on his own behalf.
A pro se plaintiff wins a victory in the Third Circuit, reversing summary judgment on his Title VII claim that Newark, New Jersey's residency requirement for city employment has a disparate impact on non-Latino white job applicants.
In a highly unusual development, a panel of the Fifth Circuit reverses itself in an employment discrimination case, in favor of the plaintiff. It had previously affirmed a Rule 50 judgment as a matter of law granted to the employer - a public hospital - in a § 1981 race discrimination case, but in a two-page per curiam order, it announces that it is vacating and remanding the case back for trial.
In a case of allegedly racially-motivated discipline, where there is no direct or circumstantial evidence of racial animus, the issue of how similarly situated the disciplined employees were can be key to whether the claim survives summary judgment. The Seventh Circuit today holds that a district court in a Title VII case erred in holding that a supervisor cannot be comparable to a line employee for purposes of applying the McDonnell Douglas method of proof, vacating summary judgment and remanding the claim for trial.
An employer can have the best anti-harassment policy that money can buy, at least on paper, but if it enforces the policy unevenly, the result can be even more legal trouble.