The U.S. Supreme Court in recent terms has encouraged federal courts to weed out supposedly meritless civil claims by use of the Rule 12(b)(6) motion to dismiss for failure to state a claim. Yet the Seventh Circuit reaffirms this week that this method is often not appropriate for Title VII discrimination and retaliation claims. The panel vacates and remands dismissal of a Title VII complaint, holding that the district court was too quick to demand facts and evidence in support of the class before discovery commenced. The court also reverses a decision holding that some of the claims were allegedly preempted by the Railway Labor Act.
A Florida federal jury holds a union and county liable for retaliation against two employees for complaining about race discrimination. The Union argues on appeal that retaliation -- in the form of exposing the plaintiffs' names, complaint and projected cost of defense -- is constitutionally-protected free speech. The Eleventh Circuit affirms the verdict, nevertheless, holding that misleading and coercive speech amounting to a "call for reprisal" is not protected under the First Amendment.
In a non-precedential opinion that may nevertheless be important to litigators, a Fifth Circuit panel splits three ways on whether an employee must continue to defend her Title VII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.
The Sixth Circuit sends back for trial an ADA and Family and Medical Leave Act case, where the employee - returning from medical leave, but still experiencing health difficulties - was forced to work beyond his medical restrictions. He was allegedly told by a Vice President of the company, shortly before his termination, that (1) the employer was not covered by the FMLA, and (2) the employee was a "liability" to the company. The panel holds that there is sufficient evidence that the company, while employing fewer than the necessary fifty employees mandated by the FMLA, was an "integrated employer" with a larger affiliated company.
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).
The Seventh Circuit reverses summary judgment in a case involving allegations of racially discriminatory (and retaliatory) treatment of two African American cocktail servers at a Mississippi River casino. The court holds that discrimination in table assignments is an adverse employment action under Title VII and 42 U.S.C. § 1981, because it cut into the servers' tip income.
In this case, a white employee sues and wins at a jury trial over a claim that he was terminated by his employer for speaking up - in support of African-American coworkers - against a racially-hostile work environment. The Eighth Circuit affirms a judgment of $60,000 compensatory damages and $30,608 in back pay in his favor, but refuses him reinstatement or front pay.
The Supreme Court, by identical 5-4 majorities, places the goals of convenience and ease of litigating Title VII cases over the legislative imperative of expanding opportunities in the workplace for all. Vance holds that a "supervisor," for purposes of proving vicarious liability for harassment against employers, must be an agent with the power to take "tangible acts" against the employee, such as firing and setting pay. Nassar holds that employees may never shift the burden to employers to disprove causation for Title VII claims of retaliation under 42 U.S.C § 2000e-3(a). Both based their interpretations in part on the convenience of allowing lower courts to take these issues away from juries.
An employer that strenuously denied that it fired an employee who complained about sex harassment finds itself short-handed on appeal. The Ninth Circuit - in a 2-1 decision - reverses summary judgment in this Title VII harassment and retaliation case, holding that an employer that fails to offer a reason or explanation for a termination decision creates an issue of fact for the jury to decide.
Two recent decisions from the Eighth Circuit serve as a reminder that employment discrimination and retaliation cases are being tried and employees are winning. In Hudson, the Court affirms a nearly $180,000 jury verdict in a Title VII and ADA discrimination case, including $100,000 in emotional distress damages. In Al-Birekdar, the court upholds a $200,000 verdict for retaliation under the Missouri Human Rights Act.