November 2004

By Paul Mollica

More Daily Developments in EEO Law

Here’s a Thanksgiving turkey leftover — Wheatley v. Wicomico County, MD, No. 03-2406 (4th Cir. Nov. 22, 2004) — where two plaintiffs got as far with their Equal Pay Act/Title VII gender pay discrimination case as a jury trial , before bombing out on judgment as a matter of law. Plaintiffs alleged that in spite of an equity study, which prompted the country to recalibrate its compensation, they were still paid below the mid-point of their grade scale (unlike coparable males) and some $25,000 less than other male managers.

At trial, though, the plaintiffs apparently began to lose confidence in their comparators (other department managers, with the same general accountabilities). By the time they rested their case, plaintiffs began pursuing a new argument that their genuine comparators were other men in their same pay grades. But the trial judge held the plaintiffs to their original theory of the case and granted the Rule 50 motion.

The Fourth Circuit affirmed the defense judgment. The panel agreed that plaintiffs failed to show that their male peers — though department heads themselves — had equal skills and equal responsibility. As to the newly-presented theory, the panel declined to reach the merits: “Although the plaintiffs technically voiced their second EP argument to the lower court, those policy concerns are still implicated. Plaintiffs raised their new theory at the eleventh hour – once they sensed that their original theory was doomed. The new argument did not appear in the complaint, nor was it mentioned to the jury in opening statements. And the switch caught the trial judge and opposing counsel completely by surprise.” On these grounds, the panel held that the court did not abuse its discretion in refusing to continue the trial based on the late-emerging theory of proof.

Wednesday, November 24, 2004

All it took to kill an entire claim was one entry: “7/7/00.” In McGoffney v. Vigo County Division, No. 04-1088 (7th Cir. Nov. 23, 2004), plaintiff filed an EEOC charge of Title VII hiring discrimination, listing “7/7/00” as the date of the alleged discrimination. But her statement of allegations read broader than that (italics in opinion):

“I. Respondent has refused to hire me on at least ten (10) different occasions.

II. I believe I am being discriminated against based on my race, because I am more than qualified for the positions I have applied for.

“III.B. I have spoken with other black persons who have applied with Respondent and been rejected as well. Moreover, white persons have been selected for the jobs I have applied for.

“III.C. On one occasion the job I applied for was in Terre Haute, however, Respondent had me drive about an hour further to Vincennes to go through the application process for no apparent reason.

In district court, she filed a complaint including the various instances of hiring discrimination suggested by her charge. But the district court and Seventh Circuit held the plaintiff bound only to the hiring claim dated “7/7/00”: “McGoffney’s vague allegations regarding ‘positions’ and ‘jobs’ for which she had applied were insufficient to place the EEOC or FSSA on notice of the particular job applications to which she was referring. She made no mention of a specific employment action occurring any time within the year 1999, nor did she mention the individuals involved or provide specific facts that would indicate that she was referring to her fourth job application, submitted in October 1999.” For an interesting contrast to this case, take a look at Flannery v. Recording Industry Assoc. Of America, 354 F.3d 632, 93 FEP 65 (7th Cir. 2004), in which a like ambiguity in an EEOC charge was decided in plaintiff’s favor.

Tuesday, November 23, 2004

A new Fifth Circuit decision, Brazoria County, Texas vs. EEOC, No. 03-60709 (5th Cir. Nov. 19, 2004), casts a glance at a little-noted corner of the 1991 Civil Rights Act, the Government Employee Rights Act (GERA), 42 U.S.C. § 2000e-16a to 16c, which covers those oddball categories of public-sector employees (personal staff; those who serve at policymaking level; advisers on exercise of constitutional or legal powers) otherwise excluded from Title VII coverage.

While the anti-discrimination provisions of Title VII extend to such employees, their remedy is purely administrative — a hearing before an EEOC administrative law judge, appeal to the EEOC and administrative review in the federal court of appeals. Here, the intervenor-employee alleged (among other things) that she suffered ostracism in her job and that her employer (a county and a justice of the peace) wrote a defamatory letter accusing the employee’s husband of theft, all in retaliation for complaining about harassment. The final decision, issued on July 2, 2003, awarded Knight $20,500 in compensatory damages; $18,952.50 in attorney’s fees; and $2759.73 in costs.

By a 2-1 vote, the court vacated the commission’s finding of retaliation against defendants. Leaving aside a lengthy exegesis in the majority opinion about the timing of the employee’s cross-appeal (ultimately found to be barred jurisdictionally), the nut of the opinion are two legal questions: (1) whether there can be retaliation liability under this section (where retaliation was not specifically incorporated into the liability section), and, if so; (2) whether the ostracism alleged constituted retaliation. On the first point, the panel finds that the GERA extends liability to the full breadth of Title VII for such employees (following preexisting Fifth Circuit case law decided under a predecessor section, 2 U.S.C. §§ 1201, 1202, 1220). On the second point, though, the Fifth Circuit found no liability for ostracism or libel, on the ground that the such activity did not constitute an “ultimate employment action,” as required under Mattern v. Eastman Kodak Co., 104 F.3d 702, 704 (5th Cir.), cert. denied, 522 U.S. 932 (1997).

The dissent, authored by recess appointee Judge Charles W. Pickering, Sr., would have affirmed the commission’s award. He concluded (among other things) that the majority erred in not reconsidering its adherence to Mattern after the Supreme Court’s decision in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), which sanctioned retaliation claims against former employees. “As noted, Mattern held that only ‘ultimate employment decisions’ are covered by Title VII. Consequently Mattern would exclude any post employment protection for retaliation, since you cannot have an ultimate employment decision after employment is terminated. The holding in Robinson could hardly be more explicit-post employment acts of retaliation are covered by Title VII, and therefore compensable. Mattern is in direct conflict with Robinson as to post employment claims. Accordingly, Mattern was modified by Robinson, certainly to the extent that post employment retaliation claims are cognizable.”

Thus setting the retaliation issue up once again for Supreme Court review.

Monday, November 22, 2004

Always read the statute! So a plaintiff learns to her regret in Meredith-Clinvell v. Dept. Of Juvenile Justice, No. 7:04CV00312 (W.D. Va. Nov. 19. 2004). Plaintiff sued for retaliation under the Fair Labor Standards Act for actions allegedly taken against her for complaining to her Supervisors about having to falsify her overtime records. The FLSA’s anti-retaliation section, though, differs from the broad proscription in Title VII, specifically making it unlawful “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” Here, the district court held that informal complaints to supervisors did not constitute a protected activity under the FLSA, and dismissed the claim on the pleadings:

“Upon reviewing the plain language of § 215(a)(3) and the relevant case law, the court agrees that Ms. Meredith-Clinevell’s informal complaints to supervisors do not fall within one of the three categories of protected activities. The court recognizes that several circuits have broadly interpreted § 215(a)(3) to extend to activities that are not explicitly set forth in the statute. However, such broad interpretations are not supported by the statutory language.”

The court noted contrary authority in a footnote — EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989); Crowley v. Pace Suburban Bus Div. of Reg’l Transp. Auth., 938 F.2d 797, 798 n.3 (7th Cir. 1991); Brock v. Richardson, 812 F.2d 121, 124 (3d Cir. 1987).

Friday, November 19, 2004

A rare summary judgment for plaintiff in an employment discrimination case, by way of one of the worst-ever deposition answers in the recent annals of employment law. In Strauch v. American College of Surgeons, No. 02 C 3314 (N.D. Ill. Nov. 12, 2004) (available on N.D. Ill. website), plaintiff challenged a variety of benefits decisions on ERIS and ADEA grounds. One of his claims was that, in comparison to other employees, plaintiff had his payment delayed in retaliation for having filed an ADEA complaint. So when asked to explain the different treatment of Dr. Strauch, the college’s hapless CEO (one Dr. Russell) responded: “Well, he was suing the College. I mean, that’s a pretty basic difference.” Summary judgment granted to plaintiff on the retaliation count.

Judge Shadur, in the same case, entered a novel and useful in limine order against the college on wage payment claim. “When Dr. Russell was questioned . . . during his deposition, he originally admitted that Dr. Strauch was entitled to be paid for the stub period in question. Then after a break in the deposition, during which he consulted with College’s counsel, Dr. Russell changed his story via purported ‘clarification’ that really reversed his field.” Judge Shadur, while allowing a trial on this issue, “expected that Russell will be instructed in advance of testifying at trial that his testimony is to be in accordance with his earlier (pre-‘clarification’) deposition testimony on the two subjects at issue.” The judge backed up the order with a prediction of the trial’s outcome, if defendant adhered to the “clarification” instead of the original answer:

this Court would be remiss if it failed to note the difference between the standard under Rule 56 (paralleled under Rule 50 when the same evidence is viewed at trial) and the standard under Rule 59. If in response to a written interrogatory as to Counts III and V the jury were to rule in College’s favor, and if the trial evidence had mirrored what has been proffered to this Court, the standard applicable on a motion for new trial on that score would be very different: whether the jury’s verdict was against the clear (often phrased as “manifest”) weight of the evidence . . . . To that end this Court would be entitled to consider the nature and circumstances of the Dr. Russell ‘clarification’ (a euphemism, as already stated) in the course of evaluating the clear weight of the evidence, and from the present perspective that would mean the issue would have to be retried.

I expect that the matter will settle quickly now.

Thursday, November 18, 2004

Is it constructive discharge for an employer to force an employee to choose between following an unethical order and being terminated? This stimulating question is raised, then dropped, by Exum v. United States Olympic Committee, No. 03-1256 (10th Cir. Nov. 17, 2004). Plaintiff (described in the opinion as African-American) served as Director of Drug Control Administration for USOC, but aspired to higher office. No Promotions came his way. Furthermore, his superiors refused to recommend plaintiff to head up the newly-formed United States Anti-Doping Agency (“USADA”). His tenure culminated in a showdown when he refused to turn over medical records to the USADA.

“Plaintiff refused to follow that order. He explains that he believes that doing so would have violated his duty to keep medical records confidential. According to Plaintiff, his supervisor then called him insubordinate, repeated his order, and stated that Plaintiff ‘could leave the USOC “sooner rather than later.”‘ Plaintiff claims that this encounter caused him a great deal of stress, and that a psychologist told him that he ought to resign for the sake of his physical and emotional well-being.”

He then submitted his written resignation. Although the USOC tried to persuade him to stay, and promised to investigate his allegations, he departed on schedule.

The Tenth Circuit found that these facts did not amount to a constructive discharge.

“Instead of resigning, Plaintiff could have chosen to comply with his superior’s order or, alternatively, refused to comply and faced the possible consequences of that choice. Furthermore, even after Plaintiff submitted his resignation, the USOC provided him with alternatives of quitting and offered to investigate his complaints. Despite these options, Plaintiff insisted upon terminating his employment relationship with the USOC.” (citation omitted)

Where the employee had a week to choose between these options, the court found that the resignation could not be considered involuntary.

Wednesday, November 17, 2004

If the employer’s defense to a state law, workplace discrimination claim is that it was following the collective bargaining agreement, does the LMRA § 301 preempt the action and confer federal jurisdiction over the claim? No, says the Fourth Circuit in Harless v. CSX Hotels, Incorporated, d/b/a The Greenbrier Hotel, No. 03-2433 (4th Cir. Nov. 16, 2004). Defendant successfully removed the claim from state to federal court on the ground that the LMRA preempted certain state tort and contract claims based on the CBA. Plaintiff then moved to amend the complaint to eliminate the preempted claims, leaving only discrimination in the case. The district court granted leave to amend and then granted plaintiff’s motion for remand. On appeal, the employer argued that the district court (1) abused its discretion in allowing the amendment, and (2) erred in finding that the discrimination claims were not completely preempted by the LMRA. The Fourth Circuit affirmed, nonetheless, on both points. Regarding (1), the court distinguished a half-century-old precedent and held that a plaintiff may, in good faith, move to dismiss claims deliberately to defeat removal jurisdiction. Regarding (2), the panel found that so long as the plaintiff himself (actually, his estate) did not intend to rely on an interpretation of the CBA to support his discrimination claim, the post-amendment, well-pleaded complaint furnished no basis for federal jurisdiction.

Tuesday, November 16, 2004

Sometimes a global release turns out not to be quite so global. In Pardi v. Kaiser Permanente Hospital, No. 02-16447 (9th Cir. Nov. 15, 2004), plaintiff (a terminated employee) alleged federal AD and state tort and contract claims. Settling the entire matter with Kaiser, the plaintiff signed a release “from all claims for conduct up to the date of the agreement and any future claims arising from any event occurring on or before the date of the Settlement Agreement,” in exchange for which plaintiff had his termination upgraded to a voluntary quit and received a $130,000 payment. Unfortunately, in the post-settlement period, the employer continued to represent to a state licensing board (the Respiratory Care Board, or RCB) that the plaintiff had been fired for falsifying patient records and disclosed patient complaints, delaying his reemployment in the medical field.

The plaintiff filed a breach of contract and tort action against Kaiser under California law, as well as an ADA retaliation and discrimination claim. The ADA claims related to statements made and documents shared by Kaiser with the RCB. The district court held that the ADA claims were barred either by the release or by “California Civil Code § 47(b), which establishes an absolute litigation privilege for communications made in the course of litigation.” But while affirming enforcement of the release against Kaiser’s pre-settlement conduct, the Ninth Circuit reversed dismissal of ADA post-settlement ADA claims. For the release, the panel found a potential breach of the contract by the employer — that “that a trier of fact could reasonably find that the Settlement Agreement obligated Kaiser to remove all references to its prior termination of Pardi in his personnel record and change Pardi’s record to reflect a voluntary resignation by January 20, 2000.” The court also rejected the assertion of a state litigation privilege against a federal cause of action on Supremacy Clause grounds

Monday, November 15, 2004

Some tension lies between the special venue provision of the Title VII, 42 U.S.C. § 2000e-5(f)(3), and the ADEA, which has no special venue provision. The issue recently arose in a mixed age-race-gender case filed in federal district court in Maryland. McNeill v. James, No. Civ.CCB-04-1807 (D. Md. Nov. 9, 2004). There, the plaintiff resided in Maryland, but her employer (the director of the federal Office of Personnel Management) office in the District of Columbia. The ADEA claim furnished venue where the plaintiff resided (28 U.S.C. § 1391(e)), while the Title VII claim could —

“be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office.”

For reasons unstated in the opinion, the plaintiff desired to keep her action in Maryland, and so invoked the seldom-heard doctrine of “pendent venue,” which (as the district court summarized) “allows proper venue as to one claim to support both claims if there are two or more claims that amount to a single cause of action with two grounds for relief.” But the district court rejected the plea:

“The courts that have discussed pendent venue have generally taken one of two approaches. Some have held that the more specific venue provision controls. Other courts decide based on the venue of the “primary” claim. Here, pendent venue is inappropriate under the first approach because the more specific venue provision is Title VII, which only permits venue in the District of Columbia. Similarly, the second approach does not favor Maryland as a venue because neither the Title VII or the ADEA claim is given primary importance in the complaint.”

The case was ordered transferred to D.C. federal district court.

Friday, November 12, 2004

Cooper v. Southern Company, No. 03-12230 (11th Cir. Nov. 10, 2004) nails the lid on most pattern-or-practice, race discrimination class actions in that circuit. Southern Company (the holding company that operates Georgia Power Co. and related subsidiaries) generates power throughout the southeastern U.S. region. The proposed class of African-American employees numbered 2,400 persons in four states. Plaintiffs alleged a pattern-or-practice of racial discrimination in promotions and compensation, as well as a racially hostile work environment. The district court found that the class foundered on both the Rule 23(a) requirements of commonality and typicality, and the Rule 23(b)(3) condition that common questions outweigh individual ones.

Regarding typicality, the panel upheld the district court’s finding that the plaintiffs’ individual claims (including disability and discriminatory discipline) and lack of standing to raise certain claims (for union members or individuals seeking promotion to senior management) rendered them untypical of the “full range of employees in their putative class.” So the panel found:

“[T]he plaintiffs sought to represent a very broad class that purported to represent all African-American employees of the defendants, at all levels of the corporate hierarchy of all the defendant companies. Because the plaintiffs asserted broad claims on behalf of a broad class, they were required to identify representative plaintiffs who shared those broad claims. However, while the different named plaintiffs may have had claims that were typical of some conceivable subgroups of the overall class, the seven named plaintiffs, collectively, did not have claims that would have been typical of the entire class.”

As for the commonality requirement:

“Since the hiring, compensation, and promotion decisions at issue were made by different managers in different companies implementing different policies, even if the named plaintiffs established that they were, individually, subjected to intentional discrimination, they would not necessarily have established that other class members suffered from the same discrimination. Commonality in the claims of the broad class the plaintiffs sought to certify would have to be established by showing that the discrimination sustained was either part of an overarching pattern and practice of intentional discrimination on the part of the defendants or the result of the discriminatory disparate impact of a facially neutral employment policy.”

The panel faulted the plaintiffs’ statistical analysis in light of perceived methodological flaws in the report (e.g., education and experience factors insufficient, many variables such as locations and job types missing, absence of statistical significance in many subsets). The plaintiffs’ array of anecdotal evidence, meanwhile, was held inadequate given the “sheer size and geographically dispersed nature of defendants’ workforce.”

Alternatively, the panel agreed that Rule 23(b)(2) certification was foreclosed because the proposed damage remedy was more than incidental to injunctive relief (citing Murray v. Auslander, 244 F.3d 807, 811-812 (11th Cir. 2001) and Allison v. Citgo Petroleum Corp., 151 F.3d 402, 413 (5th Cir. 1998)). Class counsels’ proposal to certify the class solely to pursue injunctive relief was rejected because “it is far from clear that the named plaintiffs would adequately represent the interests of the other putative class members. Indeed, to many of the class members (and especially to those who no longer work for the defendants), the monetary damages requested might be of far greater significance than injunctive relief, stated at a high order of abstraction, that simply directs the defendants not to discriminate.” The panel also endorsed the argument that the Seventh Amendment compelled a single jury trial for all claims, and that a 2,000-plus claimant trial was infeasible.

Likewise, the panel rejected Rule 23(b)(3) certification because:

“the individual determinations on liability and damages necessary for the individual plaintiffs to succeed would require highly fact-specific inquiries concerning each plaintiff. Thus, we can discern no abuse of discretion in the district court’s determination that the issues subject to individualized proof predominated over those that could be established with class-wide proof, and therefore that the Rule 23(b)(3) class action procedure would not be superior for the fair and efficient adjudication of the controversy.”

The circuits continue to be split over the principal class certification issues, with the Second, Fifth, Sixth, Seventh, Ninth and now the Eleventh Circuits reaching differing outcomes.

Finally, the court of appeals also affirmed summary judgment on the merits for the seven named plaintiffs, which discussion I dispense with here. Along the way, the court held that the Desert Palace decision does not affect or overrule McDonnell Douglas, setting up a conflict with the Fifth Circuit in Rachid v. Jack In The Box, Inc., 376 F.3d 305, 93 FEP 1761 (5th Cir. 2004).

Thursday, November 11, 2004

The Sixth Circuit, in Mitchell v. Vanderbilt Univ., No. 03-5503 (6th Cir. Nov. 10, 2004), finds (in affirming a summary judgment) that the following actions against a university science professor did not constitute (singularly or collectively) an adverse employment action: “Vanderbilt deprived him of a graduate research assistant during one summer, revoked his mentor status in the M.D./Ph.D graduate program, and removed him from his position of Medical Director of Pathology Laboratory Services”; “requiring Mitchell to submit for internal review all research applications”; “Graham’s proposals to reduce Mitchell’s pay, alter his employment status, and reassign him to serve as Medical Director for the Bedford County Hospital Laboratories [that] were never implemented”; “reduction in Mitchell’s lab space-from 2000 square feet to 150 square feet”; and “non-selection for the position of Medical Director of Clinical Laboratories.”

So if you have a client with this combination of facts, tell him (from me) that he’s screwed.

Wednesday, November 10, 2004

In an ADA case, which side bears the burden of proof on whether an employee presents a “direct threat”? There is a circuit split on the issue: the Second and Ninth Circuit place the burden always on the employer, the Eleventh Circuit pushes it always on the plaintiff, while the First and Fifth Circuits say that it depends on whether the “direct threat” issue also implicates “essential job functions” (on which the burden of the plaintiff). The Tenth Circuit now adopts the “it depends” view in McKenzie v. Benton, No. 02-8024 (10th Cir. Nov. 9, 2004) .

This was a vexing case on the facts, as so many cases involving mental illness can be. The plaintiff police officer — who previously enjoyed a spotless record — “fired six rounds from her off-duty revolver into the ground at her father’s grave,” and within weeks also suffered self-inflicted wounds and drug overdoses. She was hospitalized and diagnosed as having post-traumatic stress disorder. While she originally resigned from her job, she tried later to return to duty after her therapist wrote the sheriff’s office to confirm that her condition had improved sufficiently so that she could return to work. Yet she couldn’t obtain reemployment and eventually sued under the ADA. A jury found that plaintiff was disabled, otherwise qualified, and not hired because of her disability, but also found that she presented a “direct threat” to herself and her co-workers. The judgment was therefore for the employer.

The Tenth Circuit waved off several challenges to alleged trial errors on appeal. Regarding the jury instruction on “direct threat,” the Tenth Circuit perceived no error in charging the jury that “In order to show that she is qualified to work in an inherently dangerous occupation, plaintiff must prove by a preponderance of the evidence that she did not pose a direct threat to herself or others.” (The parties stipulated that law enforcement was inherently dangerous.) According to the Tenth Circuit, while allowing that “‘direct threat’ is addressed under ‘Defenses,'” nevertheless “the statute further states that ‘[t]he term ‘qualification standards’ may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.’ Id. §12113(b). Moreover the plaintiff had demonstrated clearly reckless use of her department issued off duty firearm when she fired six shots into her father’s grave. McKenzie’s irresponsible conduct could have tragic consequences if it reoccurred while she was on duty. In addition, evidence was presented at trial of McKenzie engaging in violent conduct which had the potential to be a direct threat to others and which, in fact, led to physical harm to herself. As a result, not only was the occupation in question ‘inherently dangerous,’ as stipulated by the parties, but McKenzie demonstrated particularly reckless and dangerous conduct. We hold that under these circumstances, the district court did not err by instructing the jury that the burden rested on the plaintiff to prove that she did not pose a ‘direct threat’ to others in the workplace.”

Tuesday, November 9, 2004

The Seventh Circuit has some pretty gnarly pregnancy discrimination case law, culminating most recently in the incomprehensible Venturelli v. ARC Community Servs. Inc., 350 F.3d 592 (7th Cir. 2003), which appeared to hold that a termination based on a manager’s assumption that the employee would not return after maternity leave did not violate the Pregnancy Discrimination Act.

Thankfully, a judge in Chicago has hacked through the thicket of cases recently in Hackett v. Clifton Gunderson, LLC, No. 03 C 6046 (N.D. Ill. Nov. 1, 2004) (Kennelly, J.) . Plaintiff was terminated during a reduction-in-force during her pregnancy. One manager, Michelle Scheffki, made (according to the summary judgment record) the usual kinds of ill-advised comments (e.g., returning to work “would be a lot more difficult with a second child,” pointing out a professional acquaintance “decided she was having other kids” and that she was now “on the mommy track,” “we can’t assume [plaintiff] Tina is going to be here” because “Tina doesn’t know … that she’s going to be returning when she goes on maternity leave”). The district court found that there was a genuine issue of material fact about whether this particular manager had input into the plaintiff’s termination. The judge also cast these comments into relief against the Seventh Circuit case law:

“The crux of the parties’ dispute on the pretext issue turns on who made the decision to terminate Hackett, since, if Scheffki was involved in making the decision, a fact finder could more easily conclude that a discriminatory animus motivated the decision. Though statements voicing doubt that an employee will return to work after having a baby do not constitute direct evidence of pregnancy discrimination, Illhardt v. Sara Lee Corp., 118 F.3d 1151, 1156 (7th Cir.1997)(citing Troupe v. May Dept. Stores Co ., 20 F.3d 734, 736 (7th Cir.1994), these same statements may suffice under the McDonnell Douglas framework. SeeHodgens v. General Dynamics Corp., 144 F.3d 151, 171 (1st Cir.1998)(‘Statements by supervisors carrying the inference that the supervisor harbored animus against protected classes of people or conduct are clearly probative of pretext.’). Moreover, Scheffki’s alleged statements go beyond doubting whether or not Hackett would return to work and appear to question her ability to handle her job after giving birth.” [Emphasis added.]

This case is a valuable antidote to the run of summary judgments against pregnancy discrimination plaintiffs.

Monday, November 8, 2004

The Seventh Circuit in Cigan v. Chippewa Falls school Dist., No. 03-4034 (7th Cir. Nov. 5, 2004) refuses to extend the “handwriting-on-the-wall” subspecies of constructive discharge, in which a plaintiff who technically resigns a position demonstrates that the resignation was prompted because the employer was about to fire her anyway (thus supporting a back pay award). The plaintiff school teacher sued under the ADA. After 30 years of service, plaintiff’s supervisor informed her that he would recommend that the school board not renew her contract for the coming school year, after plaintiff missed considerable time at work owing to a variety of ailments. She retired from the district, then sued for disability discrimination. But the court stopped short with the absence of an adverse employment action:

“Cigan wants us to treat retirement as a constructive discharge. (Otherwise it is not clear why she sued, as neither lost wages nor prospective relief could be at issue.) According to Pennsylvania State Police v. Suders, 124 S. Ct. 2342, 2351 (2004), ‘unendurable working conditions’ are functionally the same as a discharge. But Cigan does not contend that her working conditions in January 2003 were unendurable, nor did she depart then; she gave six months’ notice and left at the end of the academic year. What she contends is that working conditions are irrelevant when a prospect of discharge lurks in the background.”

Because the denial of renewal at the end of the due process procedure was only anticipated, and not certain to occur, the threat to withhold the recommendation did not by itself support a claim of constructive discharge. The panel found that plaintiff had critically failed to lay a record that the superintendent’s withheld recommendation was tantamount to a termination notice. “We conclude, therefore, that the prospect of being fired at the conclusion of an extended process is not itself a constructive discharge.”

Separately, the court also found that no inference could be drawn from the employer’s efforts to offer plaintiff reasonable accommodations that the employer therefore regarded plaintiff as disabled within the meaning of the ADA.

“Decent managers try to help employees cope with declining health without knowing or caring whether they fit the definition in some federal statute. Managers also may respond to state laws, local regulations, collective bargaining agreements, and other norms that go beyond federal law. These may create legal entitlements or practical expectations without implying anything about “disability” under the ADA. Cigan offers no reason to conclude that the principal at her school knew, supposed, or cared anything about the effect of her conditions on “major life activities” when providing breaks, chairs, and other assistance to continue teaching.”

The court found no occasion, therefore, to take sides in the intercircuit conflict over whether employers owed employees “regarded as” disabled any form of reasonable accommodations.

Friday, November 5, 2004

Always go back and read the statute! That’s the cautionary lesson of Halprin v. Prairie Single Family Homes of Dearborn Park Assoc., No. 02-2975 (7th Cir. Nov. 4, 2004), which found a lacuna in the protections of the federal Fair Housing Act, 42 U.S.C. §§ 3601 et seq. The plaintiffs had purchased a home in a development and (according to the complaint) suffered a relentless campaign of anti-Semetic harassment by the other owners. A section of the Fair Housing Act makes it unlawful “to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.” 42 U.S.C. § 3617. Analogizing to Title VII, plaintiffs supposed (and supported by respectable case authority, including Trafficante v. Metropolitan Life Ins. Co. , 409 U.S. 205 (1972)) that a claim for a religious harassment could be stated under this section.

But the panel opinion (authored by judge Posner) affirmed dismissal of plaintiffs’ claim. The lynchpin of the opinion was the drafters’ failure of section 3604 to address activity after the sale of a property. “Our plaintiffs, however, are complaining not about being prevented from acquiring property but about being harassed by other property owners. So it is difficult to see how they can have been interfered with in the enjoyment of any right conferred on them by section 3604.” The court also cited legislative history supporting the limited construction it gave to the FHA. It noted that “Reference to legislative history is criticized when it is used to give a statute a reach that exceeds what its words suggest. Our use here is the opposite; it is to confirm that the words mean what they seem to mean.”

On the other hand, the court located another possible source of liability, 24 C.F.R. § 100.400(c)(2), which forbids among other things “threatening, intimidating or interfering with persons in their enjoyment of a dwelling because of the race, color, religion, sex, handicap, familial status, or national origin of such persons, or of visitors or associates of such persons.” The court remanded for reconsideration of the claim under this regulation.

Thursday, November 4, 2004

Another installment of “When Arbitration Backfires”: Kergosien v. Ocean Energy Inc., No. 03-20953 (5th Cir. Nov. 2. 2004) . These cases warm my heart — when employers impose mandatory arbitration on their employees, only to have face catastrophe at decision-time.

This was an ERISA benefits case. The employer here was placing one line of its business on the market, but needed to assure its incumbent employees that they would not lose benefits so they would stay on board during any transition.

“In an effort to reassure O&C personnel as to their job security, and to keep these employees working for Seagull while Seagull obtained the necessary consents from its customers, on January 5, 1999, Seagull’s CFO, William L. Transier, sent a memo to the O&C personnel stating that as to any employee terminated prior to the merger in a reduction in force and any employee terminated after the merger, Plan benefits would be available. The memo also stated that the merger would constitute a “change in control” which would trigger the payment of Plan severance benefits. The memo concluded, ‘we will continue to communicate with you regarding decisions affecting you and the future of your position at Seagull.’ (Emphasis added.) There was a Summary Plan Description attached to the memo which further provided: ‘. . . if you obtain new employment while you are receiving benefit payments under the Plan, your severance benefits will not be reduced by your compensation or benefits earned with your new employer.’ (Emphasis added.)

Alas, the employer eliminated plaintiffs from the severance plan and didn’t tell them. Twenty-three employees exhausted their administrative remedies, then filed suit. Defendant moved to compel arbitration. The arbitrator then “entered a forty-two page opinion awarding the Plaintiffs benefits under the Plan totaling some $1.5 million plus $75,000 attorney fees and 6% pre-award interest and 10% post award interest.” The aggrieved employer successfully prevailed upon the district court to vacate the decision, but the Fifth Circuit reversed.

“The district court vacated the arbitration award on the grounds that the arbitrator (1) exceeded his powers, (2) misunderstood the law, and (3) misread the contract. The only one of these three grounds that is recognized by Fifth Circuit law is that the arbitrator exceeded his powers. It should be observed that the district court concluded that the arbitrator had exceeded his powers because his ruling was contrary to law. The district court seems to have mixed a statutory basis for vacatur (exceeded his powers) with a nonstatutory basis, not recognized by the Fifth Circuit, that is, the arbitrator failed to follow the law. The district court did not appropriately consider Fifth Circuit precedent as to either of these grounds and showed only passing deference to the arbitrator’s decision.”

Whether the arbitrator exceeded his powers could not be determined because the objecting party — the employer — neglected to submit the record of the arbitration for the district court’s review, and thus it was “it is impossible for this reviewing court to determine if the arbitrator exceeded his jurisdiction by deciding issues not submitted to him”. Moreover, the panel held that the arbitrator did not commit manifest disregard of the law when it applied a sliding scale of review to a plan administrator’s decision infected by a conflict of interest. “It is true that federal courts are generally prevented from going outside the administrative record in reviewing plan fiduciary decisions. Here, however, the parties were not in federal court. They were involved in mandatory arbitration invoked by Ocean. While it is true that the Plan called for the arbitrator to review the Committee decision as a federal court would, we have clearly held that conflict of interest is a factor to be weighed in determining how much deference is given to an administrator’s decision. There is no practical way for the extent of the administrator’s conflict of interest to be determined without the arbitrator going beyond the record of the administrator.” (Citations omitted.)

In the end, the panel let the employer have it between the eyes: “The parties bargained for arbitration. When one bargains for arbitration, he bargains for the process as well as the results. If Ocean had wanted to have the rigors of a federal court proceeding, it could have had them. Instead, it compelled arbitration and now, dissatisfied with the result, seeks a different outcome.” Oh, yes! The author, incidentally, was notorious recess appointee Judge Charles Pickering.

Tuesday, November 2, 2004

Election Day at last!

Two quick squibs on (non-employment) civil rights cases of note. The first is the Third Circuit’s decision in Mitchell v. Cellone, No. 04-1063 (3d Cir. Nov. 1, 2004), deciding an issue of first impression: whether a victim of racial housing discrimination who persuades a state fair housing agency to bring action against landlord in state court under state law is precluded from bringing a separate action in federal court under the federal Fair Housing Act. Answer — no. “As we read the statute, the plain language of [FHA] sections 3610 and 3613 state that a dual enforcement scheme exists that allows an aggrieved party to pursue both private and administrative enforcement until such time as either avenue has achieved resolution of the claim.”

Second, HERE is the terse, 2-1 decision of the Sixth Circuit this morning ratifying the Republican plan in Ohio to deploy poll “challengers” under state law for the sole purpose of preventing citizens from voting. The panel split three ways: Judge Rogers (appointed 2002) ruled on the merits, finding a lack of probability of success on the merits and balance of harms against the state; Judge Ryan (appointed 1985) finding that the plaintiffs lack standing; and Judge Cole (appointed 1995) voting to affirm the district courts. A campaign of intimidating voters (if this is what the “challengers” resort to) will reverberate long after the election, no matter who wins.



Daily Developments in EEO Law
EEO Case Summaries by Circuit
Old “Daily Developments” Blog Archive

Recent Updates

November 01, 2010
Stiefel v. Bechtel Corp., No. 09-55764 (9th Cir. Nov. 1, 2010); Kepas v. eBay Inc., No. 09-4200 (10th Cir. Nov. 2, 2010)

September 29, 2010
Newberry v. Burlington Basket Co., No. 09-3082 (8th Cir. Sept. 28, 2010)

September 08, 2010
Payne v. Salazar, No. 09-5291 (D.C. Cir. Sept. 7, 2010)

September 06, 2010
EEOC v. Prospect Airport Services, No. 07-17221 (9th Cir. Sept. 3, 2010)

August 31, 2010
Hatmaker v. Memorial Medical Center, No. 09-3002 (7th Cir. Aug. 30, 2010)


March, 2008

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