March 2006

By Paul Mollica

Daily Developments in EEO Law

The Eighth Circuit hands down two victories to plaintiffs in one day, the first affirming a bench verdict in a section 1981 racial harassment case, the other reversing (2-1) summary judgment in a Title VII retaliation case.

Bowles v. Osmose Utilities, No. 05-2069 (8th Cir. Mar. 29, 2006) is the sort of appeal that ought never happen, a straight challenge to the credibility findings from a bench trial, resulting in a five-page affirmance. The judge found the defendant employer liable for supervisor harassment of a black employee on a utility pole crew. While the employer argued that it should have prevailed as a matter of law on its Faragher defense, the panel held that there was a straight conflict in testimony about when the plaintiff first complained about the harassment and the district court judge could have believed the employee’s account. “[T]he decision to credit certain witnesses and not others is a virtually never clear error.” The panel also upheld as reasonable an $80,000 punitive damage award, and held that it is not necessary to plead punitive damages under Fed. R. Civ. P. 8 or 9(g), where the employee gave the defendant at least three weeks’ notice before trial that he intended to seek such relief. The panel also noted that Fed. R. Civ. P. 54(c) allows award of “relief to which a party in whose favor [final judgment] is rendered, even if the party has not demanded such relief in the party’s pleadings.”

Wallace v. DTG Operations, No 04-3345 (8th Cir. Mar. 29, 2006) held that a jury should be allowed to decide whether the employee was fired in retaliation for filing a sex harassment charge, where the evidence shows that (1) she was fired 15 days after her complaint came to light, (2) she was the only management employee axed in a general downturn in travel business after 9/11, (3) the employer had no record that the plaintiff was on the chopping block prior to the harassment charge, (4) the company violated its own transfer policy by not allowing plaintiff to land somewhere else in the enterprise, and (5) the employer couldn’t keep its story straight in discovery. Grateful though I am for any good news from the Eighth Circuit, this took 27 pages of close scrutiny of the summary judgment record (including six-page dissent by Judge Colloton), and a year passed from submission to the panel to publication, during which time the case could have been tried (five or six times over, at least) to jury, and would have looked more like the decision above.

Wednesday, March 29, 2006

No EEO cases to report on today, but there are interesting developments afoot in the Fifth Circuit. On close votes, the Fifth Circuit declined to rehear en banc two decisions that went against plaintiffs, one in a maritime case involving a seaman’s injury, the other an equal protection challenge to Louisiana’s ban on “nonimmigrant aliens” lawyers joining that state’s bar. Both votes drew dissenting opinions worth pondering.

In Brown v. Parker Drilling, No. 04-30782 (5th Cir. Mar. 28, 2006), six judges (STEWART, KING, HIGGINBOTHAM, WIENER, BENAVIDES, DENNIS) dissented from denial of rehearing of a case where the seaman — in fairly routine tort case — won before a jury, and prevailed over the employer’s motion for judgment as a matter of law, only to hit a buzzsaw on appeal (in a 2-1 decision) with entry of judgment for defendant. Judge Stewart writes in dissent:

“The panel majority, under the guise of correcting errors of law, usurped the jury’s Seventh Amendment function, replacing the jury’s verdict with a verdict of its own. Brown’s petition for rehearing en banc was not an invitation for the full court to re-try this case for a third time, but an opportunity to correct the lamentable message that the panel majority’s decision sent to the bench and bar throughout the Fifth Circuit-no jury verdict is invulnerable before this court. The panel majority’s decision commandeered the jury’s role as fact-finder and it is principally for this reason that I vehemently dissent from the full court’s refusal to rehear this case en banc.”

Judge Weiner adds, in a separate opinion:

“What does matter so critically to the civil jury law of this circuit, however, is that a jury of Brown’s peers (who obviously understood and identified with the common kind of blue-collar, physically strenuous, manual labor regularly encountered in the “oil patch”) recognized the truism that workers like Brown go home every night bone-weary, muscle sore, and bodily-bruised — and think nothing of it! These jurors, who observed Brown’s demeanor, heard his treating physician’s testimony about the earlier muscle strains, listened to the extensive cross-examination of Brown, and considered all the other evidence, concluded that, yes, Brown did (as he admitted) intentionally omit the earlier information, but, no, he did not do so with the intention of concealing or misrepresenting anything.”

I lament to reiterate, these were the dissenting views . . . though the closeness of the vote and the participation of Judge Higginbotham (once regarded as a strong conservative, but who now apparently finds himself at the center of his court) give pause. A cert grant by the Supreme Court is warranted (just as, formerly, in another Fifth Circuit case wresting away a jury verdict, Reeves v. Sanderson Plumbing).

The same configuration of judges (plus Judge Davis) dissented from the denial of rehearing in Leclerc v. Webb, 03-31009 (5th Cir. Mar. 27, 2006), a decision barring alien law school graduates (in the U.S. legally) from joining the Louisiana bar. Judge Higginbotham, writing for the seven dissenters, sees an insidious trend at work:

“As the federal judiciary draws distinctions between different classes of aliens, applying strict scrutiny to some and rational-basis review to others, it shifts responsibility over aliens from the Congress to the States. This is perverse. The panel majority relaxes scrutiny of state regulation of aliens as the federal regulation of them is increased. This is too ambitious for me.”

The political benefits of immigrant bashing find succor in judicial decisions that cede federal ground to control immigration policy to state and local politicians. Shy just two votes on the Fifth Circuit, this could have gone the other way.

Friday, March 24, 2006

In the pantheon of stupid, futile, and outrageous defense arguments, let’s enshrine the appeal of the City of Kansas City in Wedow v. City of Kansas City, No. 04-1443 (8th Cir. Mar. 24, 2006). The City sought review of jury verdicts for two plaintiff firefighters who both alleged that the city — from 1990 to 1998 — refused to issue them proper safety equipment. The opinion warrants quotation at length:

“Firefighters are each issued two sets of personalized protective clothing called bunker gear, consisting of a coat, pants, boots, helmet, gloves, a tool belt, and a self-constrained breathing apparatus. Two sets are necessary because if protective gear becomes wet or soiled with chemicals at one fire, there is a danger of injury from steam when the same gear must be worn at another fire that day. The protective clothing must fit properly to ensure that the body is protected from injury due to smoke, water, heat, gasoline, and chemicals and to ensure the mobility needed while fighting a fire. The City issued and required Ms. Wedow and Ms. Kline to wear ill-fitting male firefighting clothing, although female clothing and gear were available and management officials knew of sources from which female gear could be obtained. Because the protective clothing did not fit Ms. Wedow and Ms. Kline properly, they suffered injuries from fire and chemicals when the coats would not close properly, or too large hats and boots would fall off while fighting a fire. Ms. Wedow’s and Ms. Kline’s movements were cumbersome and restricted by pants that caused them to trip or prevented them from easily climbing ladders. Excess length in the fingers of gloves made it difficult to grip objects such as the fire hose. The City’s failure to procure protective clothing tailored for women and its provision of only male-sized protective clothing to Ms. Wedow and Ms. Kline made their jobs more difficult and more hazardous than was necessary.”

The two plaintiffs also alleged that they suffered inadequate changing and washroom facilities. For whatever reason, instead of settling, these cases went to trial before two separate juries and the plaintiffs each prevailed.

So on appeal, the city argues that despite the juries’ findings that the city deliberately issued the plaintiffs ill-fitting, life-threatening gear, these acts were . . . brace yourself . . . not “adverse employment actions” under Title VII. The panel made short work of that argument:

“The record amply demonstrates that the terms and conditions of a female firefighter’s employment are affected by a lack of adequate protective clothing and private, sanitary shower and restroom facilities, because these conditions jeopardize her ability to perform the core functions of her job in a safe and efficient manner. The danger inherent in the job of a firefighter compounded by the need to move and work efficiently in those dangerous circumstances, to quickly change in and out of gear, to shower for health reasons following a fire, and the need to serve in 24- hour shifts, combine to make the provision of adequate protective clothing and facilities integral terms and conditions of employment for a firefighter.”

What an appalling thought that Title VII wouldn’t protect the safety of women employees equal to men! Had this thought possibly occurred to the city’s legal team?

Postscript: In another Eighth Circuit case, Circuit Judge Donald P. Lay puts on a brave front in dissenting from summary judgment in a pregnancy discrimination case in Quick v. Wal-Mart Stores, No. 04-3996 (8th Cir. Mar. 24, 2006) . His opinion, in its entirety: “I dissent. Once again, our court is faced with an employment discrimination case where there are facts in dispute. Rather than submitting this conflict to a jury, the majority decides the facts as a matter of law. In my opinion, this is a violation of the Plaintiff’s rights and the question of credibility should be submitted to a jury. I therefore dissent.”

Wednesday, March 22, 2006

If an employer defending a sex harassment case attempts to introduce evidence of “lewd” and “unlady-like” statements by the plaintiff at trial, as evidence of welcomeness, is that evidence governed by the strictures of Federal Rule of Evidence 412, including the declarant’s right to a hearing on its admissibility? Yes, holds the Eighth Circuit in Wilson v. City of Des Moines, No. 05-1444 (8th Cir. Mar. 22, 2006), which for the first time holds that Rule 412 governs evidence in Title VII sex harassment trials. But the panel also holds that the district court’s failure to conduct a hearing before admitting the evidence at trial (which the employee lost) was harmless error, because the statements were confined to public statements she made at work, in which the employee enjoyed no privacy interest.

Monday, March 20, 2006

After a week of not much happening, the Sixth Circuit publishes this tidy and interesting Equal Pay Act case: Beck-Wilson v. Principi, No. 04-4010 (6th Cir. Mar. 17, 2006). The U.S. Department of Veterans Affairs — alleges Beck-Wilson (and eighteen others) — pays its predominantly-female (95%) nurse practitioners (NPs) at a lower scale than the mostly-male (85%) male physician assistants (PAs), bay about $10,000 a year.

Reversing summary judgment on the claim, the Court has occasion to discuss both the prima facie case and the affirmative defense of “reasonable factor other than sex.” On the former point, the court finds that if anything (based on the summary judgment record) the NPs possess greater eduction and skill than the PAs, and that the employer itself considered NPs and PAs fungible. It also rejects a defense argument that the employees failed to locate comparable employees: “whether two positions are substantially equal for EPA purposes is a question of fact for the jury. . .When we compare the jobs performed by NPs and PAs, we conclude that the district court. was correct in holding that plaintiffs have identified more highly paid male comparators. The record does not suggest that the comparator PAs hold jobs that require different skills or qualifications, but on the contrary, the VA’s own employees agree that the duties of the two positions are interchangeable.”

On the RFOS defense, the court finds that the existence of neutral (and Congressionally mandated) salary program did not immunize the agency’s decision to pay men more. “The VA’s response is, in essence, that its hands are tied by the statutory-based pay framework and thus that the VA must continue the status quo pay scheme for the two positions, despite any sexually discriminatory pay differential. First, the VA argues that it must continue to pay PAs under the increased special pay scale. Second, the VA claims that it lacks the authority to place the NPs under a similar increased special pay scale because there is no recruitment or retention problem for NPs. We find both arguments to be unsupported by the record. The VA’s argument confuses its obligation to pay NPs and PAs within the Congressionally-mandated frameworks with an obligation to maintain the status quo application of those pay frameworks.”

The D.C. Circuit also issued a decision last Friday that stands among the rare reversals (on abuse of discretion grounds) of a district court’s denial of a Fed.R. Civ. P. 56(f) petition. Chappell-Johnson v. Powell, No. 04-5426 (D.C. Cir. Mar. 17, 2006) . It holds that the failure of a plaintiff, in a promotion case, to allege the that the promotion was enjoyed by one not in the protected group is not fatal to a Title VII complaint.

Monday, March 13, 2006

An ADA plaintiff keeps his verdict and compensatory damages, but drops punitives, in Canny v. Dr. Pepper/Seven Up Bottling Group, Inc., No. 05-1491 (8th Cir. Mar. 9, 2006) (available on Eighth Circuit website), in an opinion that reads like a law school exam on employment discrimination remedies.

Plaintiff (Lucas Canny) was a truck driver diagnosed with Stargardt’s disease, which gradually leads to legal blindness (and, incidentally, the same condition suffered by the librarian in Cutrera v. Board of Sup’rs of Louisiana State University, 429 F.3d 108, 17 A.D. Cases 321 (5th Cir. 2005) — see my October 20, 2005 entry)). Obviously no longer eligible to drive a truck, the plaintiff (and a representative of the Iowa Department for the Blind) made repeated inquiries up the chain of command for replacement employment at the facility where he once worked in Ottumwa, Iowa, but nothing materialized and the plaintiff was placed involuntarily on medical leave. His efforts to mitigate were described as follows:

“While on medical leave, Canny received disability insurance payments along with social security disability benefits. From June 2002 to October 2002, Canny worked part time as a forklift operator for Schwartz Beer Wholesalers, Inc. (Schwartz). In March 2003, Canny worked full time for Mahaska Bottling Company (Mahaska) until its busy season ended in November 2003. Although Canny expected Mahaska to rehire him, Mahaska did not. In May 2004, Canny went back to work for Schwartz two days a week earning $80 per day. After leaving Dr Pepper, Canny got married, he and his wife had a child, and his wife began attending school in Ottumwa making it impossible for Canny to leave Ottumwa for work.”

Dr. Pepper’s first offer for reemployment came nine days after it lost summary judgment, in a letter “offering Canny a merchandiser position at Dr Pepper’s Des Moines facility (July 30 offer). Dr Pepper conditioned the offer on Canny finding his own transportation to job sites, as well as a physician’s confirmation Canny could safely operate forklifts and motorized pallet jacks. Dr Pepper had not previously notified Canny of any job vacancies at any of Dr Pepper’s other facilities. Canny declined the position because of his family circumstances.”

At trial, the jury awarded Canny $53,910 in back pay, $20,000 in past emotional damages, and $100,000 in punitive damages. On appeal, the court decides that:

1. at least as to one position considered for Canny (warehouse loader), the employer waived its Rule 50 motion; and alternatively, Canny met the burden of establishing that he was a qualified person with a disability who could perform the essential functions of the position;

2. as to a second job (merchandiser position), the employer failed to demonstrate the operating motorized equipment or driving were essential functions;

3. the employer failed to consider any reasonable accommodation for Canny and thus failed the interactive process;

4. because the employer’s decisions were motivated by safety considerations (even if misguided), and not intentional or reckless indifference to Canny’s federal rights, the punitive award cannot stand;

5. the employer waived objection to the introduction of the July 30 offer of re-employment by using it as affirmative evidence in direct examination of one of its employees; and

6. Canny mitigated his damages, and the employer’s July 30 conditional offer did not cut off back pay, “because the offer was conditioned on Canny arranging his own transportation, making wage concessions, and relocating.”

Thursday, March 9, 2006

The Ninth Circuit backtracks on one of its prior decisions and holds, in Hulteen v. AT&T Corp., No. 04-16087 (9th Cir. Mar. 8, 2006), that there is no Title VII violation in awarding pension benefits calculated upon service dates that award pre-1979 pregnancy leave time less credit than comparable disability leave. The nub of the problem, the panel majority concludes, is that no matter how this situation is conceived, the effect of demanding present-day equalization of leave time for the purpose of pension payments is to make the Pregnancy Discrimination Act (PDA) retroactive, a path foreclosed by Landgraf v. USI Film Prods., 511 U.S. 244, 293 (1994).

Previously, in Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir. 1991), the Circuit held that an employer’s comparable ratification of pre-Act discrimination violated the PDA. The employee in that case found herself just days short of the minimum necessary service to obtain a pension, and the difference in the days came about because her 1972 pregnancy leave received less credit than non-pregnancy related leave. The court on appeals then held that such a claim was not time-barred:

“In 1987, Pacific Bell instituted a program that adopted, and thereby perpetuated, acts of discrimination which occurred prior to the enactment of the [PDA]. While the act of discriminating against Pallas in 1972 is not, itself, actionable, Pacific Bell is liable for its decision to discriminate against Pallas in 1987 on the basis of pregnancy. Pallas’ complaint states a valid claim under Title VII. “

Pallas, 940 F.2d at 1327.

Rather than declare Pallis wrongly decided at the inception, the panel majority in Hulteen took the intervening Landgraf decision — which declared the Civil Rights Act of 1991 non-retroactive — as superceding Pallis.

“Enforcing the requirement that pregnancy leaves be given full credit regardless of when they occurred, as plaintiffs insist, would provide an attractive result. It gives the plaintiffs the same benefits their post-PDA colleagues receive under essentially the same circumstances, and it carries forward the purpose of the change in law. InLandgraf, however, the Supreme Court noted the latter point, but rejected it as a basis for decision: ‘It will frequently be true, as petitioner and amici forcefully argue here, that retroactive application of a new statute would vindicate its purpose more fully. That consideration, however, is not sufficient to rebut the presumption against retroactivity.’ Landgraf, 511 U.S. at 285-86.”

This retroactivity analysis finds a detractor in dissenting Judge Rymer, who writes: “I do not believe that the reasoning or theory of Pallas is so irreconcilable with the reasoning or theory of Landgraf as to give this panel license to overrule it. Pallas held that the actionable conduct was PT&T’s decision to discriminate against the employee on the basis of pregnancy when she applied for, and was denied, early retirement. The decision to deny benefits was made in the post-PDA world.” Judge Rymer, it is worth adding, is not given to especially liberal results and even notes that if Pallas were not already in the reporter, she would have been inclined to join the majority.

Wednesday, March 8, 2006

There is scarcely any life left in the proposition that a supervisor may be held individually liable for discrimination under the federal civil rights acts directed at employers (e.g., Title VII, ADA, ADEA), even though other federal acts directed at the same kinds of activity have been held to authorize such liability (e.g., §1981, §1983 and FLSA). Another plaintiff gamely takes a run at these arguments in Dearth v. Collins, No. 05-12039 (11th Cir. Mar. 6, 2006) (per curiam), but falls short. The alleged harasser was the president, director and sole shareholder of the business, InfoPro; the employee was his administrative assistant. Summary judgment was granted on her Title VII claims against Collins and InfoPro.

On appeal, Dearth argued that the Eleventh Circuit case law barring individual liability concerned only governmental employers, not private sector jobs, but the panel has no trouble disposing of this distinction: “To the extent that we have not so held before, we now expressly hold that relief under Title VII is available against only the employer and not against individual employees whose actions would constitute a violation of the Act, regardless of whether the employer is a public company or a private company.” The employee also cites the alter-ego doctrine, contending that Collins effectively was the enterprise, but the panel finds no path to Title VII liability by that route, following Worth v. Tyer, 276 F.3d 249, 262 (7th Cir. 2001) and EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1282 n.11 (7th Cir. 1995). Even were it to recognize alter-ego liability, the court held, the plaintiff failed to mount a factual record that “Collins disregarded InfoPro’s corporate form; that Collins used InfoPro to transact his own affairs or commingled InfoPro’s funds with his own funds; or that Collins is hiding behind InfoPro’s corporate form in order to protect his own fraudulent behavior.” Finally, the claims against InfoPro fail on Faragher/Ellerth grounds: the employee never complained until she was on the brink of termination, and then the claims were investigated.

Monday, March 6, 2006

Classwide civil rights actions took it on the chin twice last week on appeal. In Love v. Johanns, No. 04-5449 (D.C. Cir. Mar. 3, 2006) , on Rule 23(f) interlocutory appeal (and with a murderer’s row of class action specialists on both sides, and representing amici), the panel affirmed a district court’s discretionary denial of class certification in a “pattern or practice” case against the USDA.

The plaintiffs alleged violations of the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691-1691f (“ECOA”), for gender discrimination in farm loan and subsidy programs through the Farm Service Agency (“FSA”). The class claimed that women were denied FSA applications for discriminatory reasons, and that FSA conferred excess discretion on county-level committees to approve loans, criteria that included “citizenship, legal capacity, education and farming experience, farm size, inability to obtain sufficient credit elsewhere, and ‘character’ (which emphasizes credit history and reliability).” It also charged the agency with a failure to investigate alleged discrimination.

The panel upheld the district court’s finding that, despite plaintiffs’ presentation of 622 declarations by women who were denied applications to obtain loans (Subclass 1), plaintiffs failed to identify a policy common to all of their claims. “Moreover,” the panel held, “the declarants’ anecdotal accounts differ widely, and their complaints of discrimination are interspersed with nondiscriminatory evidence and innocuous explanations.” The D.C. Circuit here approvingly cited cases from the Sixth Circuit generally regarded as hostile to class actions: Reeb v. Ohio Dep’t of Rehab. & Corr., – F.3d -, 2006 WL 162836 (6th Cir. Jan. 24, 2006); Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 571 (6th Cir. 2004); Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998). Finally, even if a common policy had been isolated, “the outcome of this case would nevertheless turn on a series of individualized inquiries into application-distribution practices in more than 2,700 FSA offices across the country over the last quarter-century.”

Subclass 2, women who applied for but were denied loans, defied certification (according to the panel) because the alleged subjective process alleged to underlie the rejections was (again) found not common to the class, with the court citing variations in 859 declarations submitted by putative class members. “The District Court was well within the bounds of its discretion to find a lack of commonality where two out of every five of the Appellants’ own declarants-to say nothing of the silent non-declarants would be forced to prove at trial that individual reasons for their loan denials were not pretextual (e.g., one woman had poor credit, another had no collateral, a third was victimized by gender discrimination, etc.).” The panel also assigned no weight to expert tabulations of outcomes under the program submitted without any test of significance.

In IBEW vs. MS Power & Light Co, No. 04-60975 (5th Cir. Mar. 2, 2006), the court reversed a liability finding for the plaintiff-union and employees, and rendered judgment for the employer, in a Title VII race disparate impact case. The union, under 42 U.S.C. § 2000e-2(k), challenged the employer’s increase of the cutoff score for the Clerical Aptitude Test, used to qualify into advancement into “Storekeeper” and “Plant Storekeeper” positions. Plaintiff established that the test had a racially disparate impact, while the employer proffered a business necessity for the revised score (to bring that division into line with other parts of the company). Evidently, neither party presented substantial evidence of an “alternative employment practice.” The panel found that the district court erred in assigning the burden of proof on this final element to the employer under 2000e-2(k)(1)(A)(i). Absent evidence from the plaintiffs of a viable alternative practice, the employer’s business necessity went unrebutted. The panel acknowledged that its decision split with Eight Circuit, but found support in the Third and Eleventh Circuits.

Thursday, March 2, 2006

The Ninth Circuit comments on summary judgment procedure in Cornwell v. Electra Central Credit Union, No. 04-35408 (9th Cir. Mar. 1, 2006). Plaintiff, an African-American Chief Operating Officer who was demoted and eventually terminated from a financial institution, sued under 42 U.S.C. § 1981, Title VII, and Oregon law alleging discrimination and retaliation. Summary judgment was granted to the credit union as to all claims.

The Ninth Circuit first affirmed the district court’s refusal to reopen discovery to allow Cornwell to obtain a deposition of an employee who heard his superior (named Sharp) allegedly used an offensive racial slur to refer to a black employee (not Cornwell). Though allowing that such evidence was “strongly” probative of intent, the court concluded that the employee had not been diligent enough during discovery to commit this fact to sworn testimony:

“We decline to limit the district court’s ability to control its docket by enforcing a discovery termination date, even in the face of requested supplemental discovery that might have revealed highly probative evidence, when the plaintiff’s prior discovery efforts were not diligent. We hold that the district court was well within its sound discretion when it denied Plaintiff’s motion to reopen discovery.”

Even without this choice morsel of evidence, though, the panel reverses summary judgment on the demotion claim.

The panel concedes that Ninth Circuit law is hazy on the standard of proof that a non-movant must advance to fend off summary judgment. Prior to Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the circuit had held that a plaintiff proceeding through the indirect, pretext method of proof was obliged to present “specific and substantial” circumstantial evidence of bias. See, e.g., Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998) (“Such [circumstantial] evidence of ‘pretense’ must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to discriminate on the basis of sex”). Costa, the panel opines, may have diluted that standard, but the panel can take no action to overrule the prior Ninth Circuit cases:

“Although there may be some tension in our post-Costa cases on this point – several of our cases decided after Costa repeat the Godwin requirement that a plaintiff’s circumstantial evidence of pretext must be ‘specific’ and ‘substantial’ [footnote] – this panel may not overturn Ninth Circuit precedents in the absence of ‘intervening higher authority’ that is ‘clearly irreconcilable’ with a prior circuit holding [citations omitted]. Whether or not the precedential weight of Godwin has been diminished to any degree by the Supreme Court’s decision in Costa, or by our decision in McGinest [v. GTE Serv. Corp., 360 F.3d 1103, 1121 (9th Cir. 2004)], we conclude that Cornwell’s evidence is sufficient to create a genuine issue of material fact regarding the motives for his demotion under either the Godwin standard which would require ‘specific’ and ‘substantial’ circumstantial evidence of pretext, or the McGinest standard, which would not.”

Here, while the employer proffered a legitimate, non-discriminatory explanation of the demotion (to refocus the plaintiff on correcting the bank’s lending business), the panel finds that the record contains evidence undermining the credibility of that explanation, including that (1) Cornwell was the sole African-American executive, (2) Sharp supposedly singled Cornwell out for exclusion from management meetings and decisions, (3) Sharp invited Cornwell to look for another job elsewhere when the plaintiff complained about being excluded, (4) a promotion went to a demonstrably less qualified white employee, and (5) management allegedly failed to investigate Cornwell’s discrimination complaints. The conflict in evidence warranted a trial, held the Ninth Circuit.

Judge Bea, concurring, writes that while he generally approves of the panel opinion, he isn’t too impressed with the fact that Cornwell was the one African-American executive at the company, and the only one demoted:

“Absent some claim of earlier racial discrimination, [footnote] the fact that Cornwell is the sole African-American and the sole executive to be demoted provides no evidence that he was demoted because of his race. Were Cornwell to have been the sole executive promoted, would it lead to the conclusion he was being preferred because of his race? One must distinguish between coincidence and causal effect. To think otherwise would tend to insulate Cornwell from adverse action, or explain his advance, solely because of his race.”

Wednesday, March 1, 2006

Agent Donald Rochon, in the 1980s, brought a groundbreaking race discrimination action against the FBI. Two decades and two settlements later, he’s still at war with the Bureau, most recently over allegations that it didn’t investigate death threats aimed and him and his wife (by a federal inmate) during the mid-1990s. Assuming that the agency failed to take action in retaliation for Rochon’s opposition to unlawful employment practices under Title VII, does that state a claim under 42 U.S.C. § 2000e-16(a)? The D.C. Circuit says “yes” in Rochon v. Gonzales, No. 04-5278 (D.C. Cir. Feb 28, 2006), and reverses dismissal of Rochon’s complaint under Rule 12(b)(1) and (6). The two wrinkles presented, because Rochon is a federal employee, are (1) sovereign immunity and (2) the specific anti-retaliation language applied to government employees. The court finds that, as to point (1), Congress waived immunity.

“Section 2000e-16(a) prohibits the executive departments from discriminating in personnel actions. A civil action alleging a violation of § 2000e-16(a) is, per § 2000e-16(d), governed by ‘[t]he provisions of section 2000e-5(f) through (k)’; those provisions are applicable to actions against all employers subject to Title VII, public and private alike. One such provision, § 2000e-5(g)(1), expressly allows a court to award equitable relief, including back pay, to any claimant with respect to whom the defendant employer ‘intentionally engaged … in an unlawful employment practice,’ and § 2000e-3(a), in turn, clearly makes retaliation ‘an unlawful employment practice.’ It is clear, therefore, the Congress has made the United States amenable to suits seeking equitable relief and back pay for retaliation. The district court, consequently, had jurisdiction over Rochon’s statutory claim.”

On the second point, the court finds the reference to “personnel actions” under 42 U.S.C. § 2000e-16(a) does not necessarily require proof of an adverse employment-related action, as argued by the government. That limitation, the court found, would paradoxically sanction retaliation outside the workplace. “To take the Government’s own example, the IRS could retaliate against a complaining employee by subjecting him to a tax audit. Or an employer could falsely accuse an employee of engaging in criminal activity . . . .”

Nevertheless, “[w]e are not indifferent to the Government’s concern that too broad a reading of § 2000e-3(a) could lead to a barrage of lawsuits against it based upon trivial actions, such as the ‘misdelivery of a letter’ by the Postal Service.” Thus, the behavior must be sufficient “‘to dissuade a reasonable worker from making or supporting a charge of discrimination'” (quoting Washington v. Ill. Dep’t of Revenue, 420 F.3d 658, 662 (7th Cir. 2005)). This very issue, the standard of materiality, is now before the U.S. Supreme Court in Burlington Northern v. White.



Daily Developments in EEO Law
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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)


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