September 2007

By Paul Mollica

Daily Developments in EEO Law

Does the Price Waterhouse affirmative defense, under which the employer entirely avoids liability if it shows that it would have taken the same adverse action against an employee notwithstanding her race, continue to apply to section 1981 race discrimination and retaliation cases? In Metoyer v. Screen Actors Guild (SAG), No. 04-56179 (9th Cir. Sept. 26, 2007), the panel majority (Judge Nelson writing for herself and Judge Rawlinson) finds that the mixed-motive defense for section 1981 tracks the 1991 amendments to Title VII, 42 U.S.C. § 2000e-2(m) and -5(g)(2)(B), and affects only relief, as opposed to a liability. Judge Bea, in dissent, holds that Price Waterhouse applies to section 1981 claims and cuts off liability entirely.

Dr. Metoyer, an Affirmative Action Director for the employer, claimed that senior management demeaned her (and her constituents) with racial slurs when she protested discrimination:

“[Senior managers] Schick and Chassman responded to these complaints with blatantly racist comments. In response to complaints that African-Americans were being kept in low-paying jobs, Shick stated: ‘I’m keeping them there because I want to keep an eye on them because black people like to party and eat and don’t do their work.’ Chassman’s response was: ‘They ought to be glad they have a job.’ In another meeting sometime in 1998 in which Metoyer put forth complaints of minority employees, Chassman responded, ‘All of these people are lazy and malingerers. Is that something special with African- Americans that they have to socialize all the time and they are never happy? They should be happy to have this job.’ Many of the employees told Metoyer that they were retaliated against after she brought their complaints to the attention of senior management.”

Later on, the SAG discovered that there were irregularities in grants (amounting to some $30,000) attributable to Dr. Metoyer, supposedly paid out to her business partners and other intimates. (The opinion covers the ensuing investigation by PricewaterhouseCoopers in excruciating detail.) When the alleged scheme came to light, Dr. Metoyer was suspended and eventually fired. Dr. Metoyer contended, in turn, that her complaints about the misappropriation of grant funds by white SAG contractors were not as diligently investigated. Dr. Metoyer also argued, in any case, that the managers’ racial comments were enough to support a mixed-motive theory and to survive summary judgment.

The district court granted summary judgment to the SAG, but the panel majority reversed. It held that the Ninth Circuit had never recognized a complete mixed-motive defense for section 1981 defendants, before or after Price Waterhouse: “[P]rior to the Civil Rights Act of 1991, we held that a defendant in a Title VII suit can avoid damages in the form of back pay or retroactive award of appointment, promotion or seniority if she can establish ‘by ‘clear and convincing evidence’ that even in the absence of discrimination the rejected applicant would not have been selected for the open position.’ . . . Notably, we never held that an employer’s mixed-motive acted as a defense to liability.” [Citations omitted.] Moreover, there was no reason to read a mixed-motive defense into section 1981 today: “there is nothing in the plain language of § 1981 establishing a mixed-motive defense to liability.” Thus, analogizing to Title VII, the panel majority concluded that a mixed-motive defense under section 1981 concerns relief-only, not a liability.

The dissent cried foul, complaining (among other things) that the majority decision created a conflict with an Eleventh Circuit opinion, Mabra v. United Food & Commercial Workers Local Union No. 1996, 176 F.3d 1357 (11th Cir. 1999). Judge Be also wrote that when Congress amended Title VII to alter the proof structure for mixed-motive cases, it made no corresponding change to other civil rights statutes. By implication, the omission left Price Waterhouse intact for section 1981: “It would seem to defy logic to apply the mixed-motive limitations under § 2000e-5(g)(2)(B) to a § 1981 action, which is situated in a wholly different part of the United States Code, but not to a Title VII retaliation claim under § 2000e-3, which is, after all, a Title VII claim itself. Second, there is no reason why mixed motive should be a complete defense to liability in a § 1981 retaliation action, but not in a § 1981 discrimination action. There is nothing in § 1981 that supports this distinction.”

The majority and dissent also disagreed on the record facts about whether the plaintiff made out a genuine issue of material fact on the affirmative defense.

(Unmentioned in the opinion, but a possible departure point for future consideration, is whether Price Waterhouse survives in any form. The plaintiff in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), challenged the Price Waterhouse standard of proof (which was cobbled together from a plurality and two concurring opinions), but the Desert Palace court found that it did not have to reach the question. So the continued viability of Price Waterhouse remains in play. Also, this case may be affected by the grant of cert Tuesday in CBOCS West v. Humphries (06-1431), i.e., whether race retaliation is a cognizable theory under section 1981.)

Wednesday, September 26, 2007

If your federal EEO claim isn’t going so well, but you have state law claims that you want to remand to state court, the Eleventh Circuit says there’s a way to sink it: amend the complaint before the court rules on a dispositive motion, and destroy supplemental jurisdiction. Pintando v. Miami-Dade Housing Agency, No. 06-12953 (11th Cir. Sept. 25, 2007) holds that when the employee amends the complaint to drop the federal claim (here, Title VII), even after the summary judgment motion is filed, subject matter jurisdiction is measured by the amended complaint rather than the opening complaint. Because the amended complaint in this case presented state law claims alone, and no other basis for jurisdiction, the district court erred in ruling on the merits of the state law claims that were no longer within its supplemental jurisdiction. Agreeing with similar rulings from the Fifth and Seventh Circuits, the court holds that “When Pintando amended his complaint and failed to include a Title VII claim or any other federal claim, the basis for the district court’s subject-matter jurisdiction ceased to exist, and the district court should have dismissed Pintado’s state claims without prejudice.”

And from the Tenth Circuit, imagine reading a case for your client only to discover that he was suffering “more pressing legal problems”:

“In close proximity to the time that the Notice of Right to Sue was issued, [the attorney] became aware that [plaintiff Mr. Rogers] had been incarcerated under criminal charges in the state of Texas. However, at that time, [Mr. Rogers] believed that he would be released in approximately December 2004.

“Consequently, given the 90 day deadline on [the right to sue], [counsel] allowed some time to pass but, protecting. . . [Mr. Rogers’s] rights, filed a lawsuit on or about October 26, 2004. Thereafter, in hopes that [Mr. Rogers] would be released from his incarceration, counsel waited until the end of the statutory deadline for service. . . .At that time, [Mr. Rogers] was indicating his belief that he would be released from incarceration in the spring of 2005.”

But release did not come as scheduled, and as trial approached, the attorney requested an order “continuing the currently scheduled trial date for 90 to 120 days. This [m]otion is made upon the grounds that [Mr. Rogers] cannot properly prosecute his action because he is currently incarcerated in the state of Texas.” The motion was denied and the case dismissed for want of prosecution. The Tenth Circuit in Rogers v. No. 06-4221 (10th Cir. Sept. 25, 2007) affirms, finding that while the plaintiff’s personal involvement might be preferable, it was within the district court’s discretion to push the case along: “Mr. Rogers’s attendance at trial was not essential. Although he would have preferred to attend, he could have preserved his testimony by deposition. See Fed. R. Civ. P. 30(a), 32(a)(3)(C). And, as the court stated, ‘[I]t is not clear why Mr. Rogers was unable to proceed with interrogatories, depositions, and other discovery in this case, much of which could have been handled by a simple telephone call to his attorney or perhaps a deposition in the Texas facilities.'”

Tuesday, September 25, 2007

The management bar seems to have this Supreme Court’s ear. In a reversal of years of experience during the Rehnquist Court — when (after the 1988-89 term) the Court granted few EEOC cases review, and most petitions were by employees — the last four EEO-related cases granted review by this Court originated from employers. Today, the Court granted cert in two EEO cases. The first, Kentucky Retirement Systems v. EEOC (06-1037) concerns whether the use of “age” as a factor in a state retirement plan renders the plan facially discriminatory under the ADEA. The second, CBOCS West v. Humphries (06-1431), addresses whether race retaliation is a cognizable theory under section 1981.

These cases join two other pending cases: Federal Express Corp. v. Holowecki (06-1322) (whether an EEOC Intake Questionaire may be treated as a charge for purposes of filing an ADEA lawsuit) and Sprint/United Management Co. v. Mendelsohn (06-1221) (concerning the admissibility of anecdotal witnesses who claim that they also suffered discrimination during the same reduction in force). And another case, in which the employer dismissed its own petition after the Court granted cert, also originated from an employer’s petition: BCI Coca-Cola Bottling v. EEOC (06-341).

These cases also share the interesting characteristic that they involve issues of importance mostly to lawyers defending lawsuits. This is in contrast to Faragher and Ellerth, for instance, which wrought real changes in the way companies handled harassment. Only the Kentucky Retirement Systems case actually concerns a structural issue about compliance with the federal EEO law (the use of age as a condition in a benefit plan), but even there, the issue is whether the use of “age” in the plan by itself satisfies the ADEA prima facie case. The rest of the cases involve whether employees may have an alternative to Title VII for retaliation under section 1981 (Humphries), the prerequisites for filing an ADEA suit (Holowecki) and admissibility of trial evidence (Mendelsohn). So this is the defense bar talking directly to the clerks and apparently-sympathetic justices about issues that will not affect actual employment practices, but improve their clients’ stock in litigation.

UPDATE: The folks at Workplace Prof Blog identified a third EEO-related case in which cert was granted for this term: Gomez-Perez v. Potter, whether federal-sector employees have protection against retaliation under the ADEA, 29 U.S.C. § 633a. This would appear to be a companion to Humphries, because both cases involve statutes that (for historical reasons, or simply by oversight) lack an express anti-retaliation provision. Of course, this Court just decided this issue in Jackson v. Birmingham Bd. of Educ., 125 S. Ct. 1497 (2005), finding that a claim for retaliation is implied in Title IX’s anti-sex discrimination prohibition. Of course also, Jackson was a 5-4 opinion authored by retired Justice O’Connor, and these cases may be the vanguard for either overruling Jackson outright (certainly possible) or distinguishing it into oblivion (Chief Justice Roberts’ and Justice Alito’s M.O.). Thankfully, this is the sort of decision most easily repaired by Congress by amending all of these acts to prohibit retaliation.

Thursday, September 20, 2007

Panels in the U.S. Courts of Appeals for the Third, Seventh and Ninth Circuits have recently written on the “ministerial exception,” a judge-made exemption of religious organizations from Title VII (or other EEO) liability said to be implied by the First Amendment. The exemption applies to workers involved directly in the faith life itself (clergy, liturgists, etc.), not ancillary staff such as secretaries and custodians. Though oft-neglected, Title VII contains two exemptions expressly addressing religion: Section 702(a) (42 U.S.C. § 2000e-1(a)) excluding a “religious corporation, association, educational institution, or society,” and section 703(e)(2) (42 U.S.C. § 2000e-2(e)(2)), allowing religiously-affiliated schools to hire co-religionists.

LeBoon v. Lancaster Jewish Community Center Assoc., No. 05-2073 (3d Cir. Sept. 19, 2007), coming down a full year after oral argument, holds (2-1) that the district court correctly found defendant JCC to fall under the section 702(a) exemption, despite its lacking financial or other ties to a synagogue. Plaintiff — an evangelical Christian — worked at the JCC as a bookkeeper. She alleged that her firing was engineered by the JCC board as retaliation (for supporting EEO complaints by two coworkers) and as discrimination because of religion. Before she ever gets a chance to prove her allegations, though, district court found the JCC exempt. The Third Circuit affirms.

The panel majority, though allowing that Title VII fails to define “religious corporation,” applies the multi-faceted test long deployed by other circuits:

“(1) whether the entity operates for a profit, (2) whether it produces a secular product,(3) whether the entity’s articles of incorporation or other pertinent documents state a religious purpose, (4) whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue, (5) whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees, (6) whether the entity holds itself out to the public as secular or sectarian, (7) whether the entity regularly includes prayer or other forms of worship in its activities, (8) whether it includes religious instruction in its curriculum, to the extent it is an educational institution, and (9) whether its membership is made up by coreligionists.”

The majority then pores over the mission statement, daily operations, charity concerns, board membership (including three rabbis), finances, use of Hebrew and the historical Jewish calendar, funding from the Jewish Federation, kosher kitchen and other details to conclude that the institution is pervasively religious:

“To summarize, the LJCC saw itself as a center for the local Jewish community, identified itself as Jewish through the mezuzah on its doorway, relied on coreligionists for financial support, and offered instructional programs with a Jewish content. The Jewish religious calendar provided the rhythm for the LJCC’s yearly (and even weekly) activities; the three area rabbis were involved in management decisions, including the search for an executive director; and the Board of Trustees began meetings with Biblical readings and remained acutely conscious of the Jewish character of the organization. These characteristics of the LJCC, taken together, clearly point to the conclusion that the LJCC was primarily a religious organization.”

That the JCC also hosted non-Jewish functions, accepted United Way money (granted on condition of non-discrimination) and hired mostly non-Jews did not mitigate the JCC’s entitlement to the exemption. (Curiously, having found the JCC exempt, the panel went on to evaluate the employee’s retaliation claim on the merits anyway, and affirmed summary judgment on the usual grounds)

This analysis appalled the dissenter, Judge Rendell, who would have held that the exemption only applies to employers owned or operated by a religious order. The alternative of picking over the details of the employer’s operation would “disregard basic canons of statutory interpretation, invite ill advised judicial forays into the minutiae of private religious practice and, worst of all, sanction discriminatory employment decisions that go far beyond those Congress intended to exempt from Title VII.”

Wednesday, September 19, 2007

The combined force of the Morgan and Ledbetter decisions in recent Supreme Court terms has given heightened awareness to timing questions under Title VII and other EEO statutes, especially over what triggers the running of the period. Ledbetter posed the following scenario:

“Of course, there may be instances where the elements forming a cause of action span more than 180 days. Say, for instance, an employer forms an illegal discriminatory intent towards an employee but does not act on it until 181 days later. The charging period would not begin to run until the employment practice was executed on day 181 because until that point the employee had no cause of action. The act and intent had not yet been joined.”

So what happens when the employee suspects that the employer is out to fire him, but it takes only a half-step toward that goal. Does the time begin to run then? The Tenth Circuit appears to have hit upon such a case in Proctor v. UPS, Inc., No. 06-3115 (10th Cir. Sept. 18, 2007). This was an ADA retaliation case where, in January 2002, the employee was placed on medical leave for a back injury; the leave was grieved and lost in April 2002; plaintiff requested an accommodation in July 2002; and then the following took place:

“In March 2003, UPS notified Mr. Proctor by letter of its decision to deny his request for an accommodation, stating: ‘[B]ased upon the medical information that we have received, we are unable to conclude that you are eligible for a reasonable accommodation pursuant to the Americans with Disabilities Act. The letter also directed Mr. Proctor to call the district workforce planning manager with any questions ‘concerning [his] entitlement to benefits or [his] employment status at this time.'”

The employee filed complaints with different government agencies, including submitting a request for workers compensation. These were resolved by the end of 2003, and “On January 14, 2004, Ms. Sloan notified Mr. Proctor’s union representative by letter that UPS had closed all Mr. Proctor’s workers’ compensation claims and that Mr. Proctor would be separated from employment with UPS as of January 14, 2004. This letter is the only documentation of Mr. Proctor’s termination in the record.”

Law school exam time, kids: when did the claim accrue? According to the Tenth Circuit, Proctor’s claim began running only when the termination took final form in January 2004 and was communicated, not merely when it was suggested by events months earlier. Ultimately the panel found that the claim was timely because the adverse action took definitive form only later:

“Even if we assume that Mr. Proctor’s termination in January 2004 was an inevitable consequence of earlier employment decisions, the record does not support the conclusion that UPS notified Mr. Proctor of this inevitability. The record contains evidence that he was notified of Dr. Brown’s decision recommending he not return to work as a package car driver and of UPS’s decision to deny his request for an accommodation. The record does not, however, contain evidence that UPS notified Mr. Proctor that these decisions would inevitably lead to his termination.”

(Though finding that the claim was timely, though, the panel in the end denied it on the merits.)

Monday, September 17, 2007

The Eleventh Circuit in two opinions signed by Judge Marcus spared two sets of plaintiffs’ employment lawyers the lash.

Hudson v. ICN, Inc., No. 0615932 (11th Cir. Sept. 17, 2007): Though losing summary judgment below, the lawyers are at least spared the indignity of sanctions. The panel affirms the district court’s denial of section 1927 sanctions, finding that the ERIS and Florida Civil Rights Act case, though weak, was not “so without circumstantial foundation” as to render it frivolous. Moreover, the employer’s fees for the appeal are denied on the ground that the defendant’s lawyer failed to make a timely demand in the Eleventh Circuit (under its local version of Rule 38) — although for good measure, the panel finds that no sanctions would have been warranted anyway.

Amlong & Amlong P.A. v. Denny’s, Inc., No. 04-14499 (11th Cir. Sept. 17, 2007): This is the second amended opinion in a case first decided July 31, 2006 and pending on appeal since 2004. The panel majority (with a dissent by Judge Hill) tosses a $400,000+ sanction award under section 1927 against the Amlong firm, accused of continuing a Title VII harassment case long past the time that it supposedly became unwinnable. The majority reverses solely on the ground that the district court judge, in reversing the magistrate report (which denied sanctions), erroneously rejected the magistrate’s credibility determinations without convening a new hearing as mandated by 28 U.S.C. § 636(b)(1). (The dissent would have affirmed the district court order outright.) So the saga for all sides continues on remand.

Friday, September 14, 2007

UPDATE: I thank the fine folks at Alaska Employment Law for blowing the whistle on a terrible panel decision from the Ninth Circuit yesterday, Nilsson v. City of Mesa, No. 05-15627 (9th Cir. Sept. 13, 2007), that would appear to endorse prospective waiver of Title VII (and other federally-protected) employment rights. What, they haven’t heard of Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), in the Ninth Circuit (i.e., “we think it clear that there can be no prospective waiver of an employee’s rights under Title VII”)?


The Tenth Circuit, jumping ahead of the Supreme Court in Federal Express Corp. v. Holowecki, No. 06-1322, holds in Jones v. UPS, No. 06-3088 (10th Cir. Sept. 13, 2007) that an Intake Questionnaire processed by the EEOC becomes a charge even if notice was not served on the employer. UPS tried to void an entire ADA lawsuit (challenging a “100%-healed” policy which prevented the plaintiff from returning to work with lifting restrictions) on the ground that the employee’s contact with the EEOC ended without the filing of a “formal charge.”

The district court held, and the Tenth Circuit agreed, that the Intake Questionnaire (used by the EEOC district offices to determine their jurisdiction) signed by the employee met the legal requirements for a charge:

“First, we agree with the District Court that Mr. Jones’s questionnaire satisfied the EEOC’s minimum requirements for a charge. Under the relevant statutory provision, 42 U.S.C. § 2000e-5(b), the EEOC has broad discretion to determine the content and form of a charge. See id. (‘Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the [EEOC] requires.’). In addition to requiring that a charge be written, signed, and verified, 29 C.F.R. § 1601.9, EEOC regulations state that a charge ‘should contain’ particular information, id. at § 1601.12(a). But even if a charge fails to contain the specified information, it may still be sufficient, provided it is ‘a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of.’ Id. at § 1601.12(b). Mr. Jones’s intake questionnaire clearly satisfies these minimum requirements for the content of a charge, in addition to meeting the EEOC’s formal requirements that a charge be written, signed, and verified, id. § 1601.9.”

The court also held, in support of its conclusion, that the record indicated that the employee believed that the Intake Questionnaire was a charge. The panel even went the extra step (formally reversing the district court on one aspect of its order) and salvaged the employee’s failure to check off disability and retaliation as a prohibited bases of discrimination on the form on page 2. The Tenth Circuit held that the balance of the charge clearly indicated a purpose to complain about ADA discrimination and retaliation violations, and in particular the application of the “100%-healed” policy to prevent his return to work.

Sadly for plaintiff Jones, the panel’s largesse ended here. Summary judgment was affirmed on the alternative bases that (1) the employee could not prove that UPS regarded him as substantially limited in the major life activity of “working,” thus swamping his discrimination claim; and (2) the record revealed no basis for holding that UPS was aware that Jones sought an accommodation so that he could return to work. On the latter point, the panel held that “Mr. Jones cannot establish a causal link between his allegedly protected activity and UPS’s refusal to return him to work unless he can show that UPS knew he was engaging in protected activity.” While requesting a reasonable accommodation may be treated as a protected activity under the statute, plaintiff “offer[ed] only his remarks in response to UPS’s labor manager (‘I can’t just go home. I need to work a job.’). In the absence of other evidence, these remarks could not have put UPS on notice that Mr. Jones was requesting reassignment based, at least in part, on his belief that UPS regarded him as disabled.”

Thursday, September 13, 2007

We are constrained again to remind women, minorities and any other victim of a hostile work environment to complain loudly and often to management. Courts do not easily forgive a failure to go through channels, even when (by the employee’s reckoning) the harassment was known to anyone at the workplace with eyes and ears. Employers completely escape liability for even the grossest offenses when no one complains. This is true even when complaining results in a slanted investigation and a tainted report.

For another reminder, take a look at Weger v. City of Ladue, No. 06-1970 (8th Cir. Sept. 13, 2007), a 2-1 decision affirming summary judgment against two civilian communications officers placed under the command of Captain William Baldwin. Capt. Baldwin, it was alleged, undertook daily harassment of the plaintiffs, as summarized:

“Baldwin’s harassing behavior toward the Plaintiffs included: (1) chasing them, tickling them, and blocking doorways so that they were unable to get around him; (2) massaging their shoulders, neck, and upper chest area underneath their uniforms; (3) attempting to hold their hands; (4) grabbing their waists; (5) running his fingers through their hair; (6) hugging them and pressing his body against their bodies; and (7) going under their desks in order to massage their legs. In addition, Baldwin made inappropriate sexual comments to Plaintiffs, including references to [plaintiff] Murphy’s breasts and legs and repeated inquiries into her sexual relations as well as remarks about the physical appearance of other women.”

Plaintiffs alleged that at least six incidents of harassment were witnessed by superior officers. But it was a full year into Capt. Baldwin’s harassment — the day he allegedly assaulted an employee in a kitchenette adjacent to her worksite — until one of the plaintiffs officially complained about him. An internal investigation ensued, and while the city concluded that there was no sex harassment de jure, it found that Baldwin violated department policy by touching employees and he was assigned away from the employees’ station. The harassment came to an end.

Under Faragher and Ellerth, an employer under Title VII is vicariously liable for a hostile work environment created by a supervisor. But the city asserted the affirmative defense that it maintained an effective policy to prevent and correct harassment and that the plaintiffs failed unreasonably to use it. The panel majority held (in an opinion authored by Judge Shepherd) that the employer proved its defense against the harassment claims as a matter of law. (Various retaliation claims by the same employees also died on summary judgment, as well.)

In so holding, the majority concluded:

1. That where a formal policy for reporting harassment complaints exists, the employee cannot rely on evidence other employees in the chain of command witnessed some of the harassing events to substitute for making a complaint: “where an employer has a complaint procedure delineating the individuals to whom notice of harassment must be given, employee observations are not relevant to the actual notice inquiry. . . . Rather, because the Department has a published policy that provides a procedure for reporting suspected harassment, Plaintiffs must have invoked this procedure in order to establish actual notice.”

2. That the six events supposedly witnessed by others were insufficiently severe or pervasive to place them on constructive notice that the acts were a pattern of harassment: “they occurred over a substantial period of time and no single officer observed more than three incidents. Though the behavior attributed to Baldwin is reprehensible, the six instances observed by Department employees lack the requisite pervasiveness to support a finding that it ‘was obvious to everyone.'” (Here, Chief Judge Loken concurred specially to opine that the “constructive notice” analysis was unnecessary, because the employees’ failure to complain sufficed to support the defense.)

3. That the employees could not be excused from using the formal policy absent a “truly credible threat of retaliation” (is “truly credible” a redundancy?), which was not demonstrated here.

The soft spot in the opinion was the evidence that the city’s investigation was, even by the majority’s reckoning, significantly flawed — including (most egregiously) that the names and content of interviews with women at the station were communicated back to Baldwin (who remained in command, despite his physical departure from the facility). The majority found the flaws irrelevant because, however warty the process, the end result was that the harassment stopped. So the “take-away” message for employers and their HR professionals appears to be — at least in the Eighth Circuit — provide a formal anti-harassment process (to fend off liability), but make sure that any investigation eventually vindicates the employer (so it can’t be used against you in litigation), and that the other employees find out (so no one else will be tempted to complain, thus restarting the process).

Judge Bye dissented, holding that the supervisors’ first-hand observation of at least some of the events constituted actual or constructive notice to the city: “Given [Detectives] Wagner’s and Baker’s first hand observations of Baldwin’s behavior, it simply cannot be argued they did not know the harassment was occurring.9 Moreover, as supervisors, Wagner and Baker were charged under the City’s anti-harassment policy with the duty to report and stop any observed sexual harassment. Thus, notice of harassment to either of them constituted notice to the City.”

Tuesday, September 11, 2007

While the hearing world takes for granted the convenience of cell phones, iPods and other electronics that communicate sounds, these devices are useless to the deaf. The duty to accommodate often requires thinking through such inconveniences, even in the rudest of settings. And so in Robertson v. Las Animas County Sheriff’s Department, No. 06-1027 (10th Cir. Sept. 10, 2007), a case brought under Title II of the Americans with Disabilities Act, the court considered the duty to provide alternatives for deaf jail inmates. While not an employment case, the opinion speaks to the often-neglected responsibility that even small businesses (including law firms) have to accommodate the deaf.

After Mr. Robertson’s arrest for trespass (though the charges were dismissed the next day), he spent the night in lock-up. Though he had cochlear implants, Mr. Robertson had to be physically present before the speaker, facing them no more than 2-3 feet away, to be able to hear the words. He could not use the phone to communicate with his lawyer because it lacked a TTY capability. He could not use the intercom connection with the corrections officers because he could not hear them at the other end. He could not participate in the probable cause hearing in his case conducted on closed-circuit television.

In spite of these limitations, the district court granted summary judgment on the ADA claim, holding that Mr. Robertson was not a “qualified individual with a disability” within the meaning of the ADA, or alternatively that he was not denied the benefits of a public entity’s services, programs, or activities.

The Tenth Circuit reversed summary judgment on the ADA claim concluded that Mr. Robertson was substantially limited in the major life activity of hearing, despite the plaintiff’s admission that his deafness does not personally bother him, and that he considered it simply a communications problem:

“But the fact that Mr. Robertson is not botherd by his impairment or that he does not consider himself to be substantially limited by it does not enter into the calculus. . . . Even taking into account the mitigating effects of the cochlear implant on his inability to hear, there is more than sufficient evidence for a reasonable jury to conclude that Mr. Robertson is substantially limited in his ability to hear as compared to the average person: Mr. Robertson can only hear human voices from those facing him and standing within two-to-three feet; he cannot hear sounds transmitted through electronic devices, such as a radio or television; and he cannot hear sounds originating from beyond a few feet. Accordingly, summary judgment on this issue is not warranted.”

The Tenth Circuit also held that an express request for an accommodation was not necessary provided that the agency was on notice about his needs:

“Second, even if a fact finder concluded that Mr. Robertson did not so inform the facility, it could still find that the defendants were on notice of Mr. Robertson’s need for an accommodation to use the phone and to participate in his probable cause hearing if that need was ‘obvious’ to the defendants. As noted above, there is a genuine issue of fact regarding whether the defendants knew Mr. Robertson is deaf. Practically speaking, if they knew Mr. Robertson is deaf, there is a question of fact regarding whether his need for an accommodation was obvious when he attempted to use prison services necessarily involving aural communication.”

The court also held that Mr. Robertson’s inability to communicate with counsel or to participate electronically in his probably cause hearing constituted a denial of services, even though (in the end) the charges were dropped and no “injury” resulted: “because the facility makes the activity available to detainees in general, it must do so on nondiscriminatory terms.” The discrimination itself is the injury in such a case because “he was denied the ability to participate in his probable cause hearing to the same extent as non-disabled individuals.”

Monday, September 10, 2007

Viacom might be taking grief for its (reportedly) dreary and embarrassing MTV Music Video Awards broadcast, but it beat back an attempt by a former employee to file an ADEA lawsuit, which (like MTV’s star attraction) was found to be five years past its prime: Ruehl v. Viacom Inc., No. 06-1463 (3d Cir. Sept. 10, 2007).

The employee was RIF’ed by Viacom in 1998, when the firm eliminated the employee’s job by shuttering its tax department. The employee at that time signed a release as part of a severance package. Yet Viacom failed to include the mandatory disclosures under the Older Workers Benefit Protection Act of the class of individuals covered by the package and the titles and ages of persons selected and not selected for severance (29 U.S.C. § 626(f)(1)(H)).

Within months of the termination, other employees RIF’ed under the same program filed class-wide charges of age discrimination, and filed a collective action the following year (the Mueller-Bellas case). The case was conditionally certified by the district court in 2001, at which time Ruehl opted-in to the action. The district court later decertified the case in March of 2003, finding the employees not to be similarly situated. Six months later, Ruehl filed an individual charge (and several score of employees, in response to decertification, appear to have done the same), then filed a civil action. The district court certified the ensuing release and limitations defenses for appeal.

The Third Circuit held that the release was unenforceable, owing to the failure to provide the mandatory disclosures, over Viacom’s argument that literal compliance with the OWBPA would have been needlessly burdensome:

“Viacom argues that if we invalidate Ruehl’s waiver, employers will be forced to attach voluminous amounts of unwanted material to every release. This, Viacom contends, would unduly burden both the employer and the employee. But we are not suggesting that Viacom was required to include boxes of paper with each and every waiver. We hold only that Ruehl’s waiver was invalid because Viacom neither attached the required information to the Release nor adequately informed him of the relevant information, or how to get it, in any writing at all.”

Reaching the merits, the Third Circuit held that Ruehl was not allowed to rely on the pendency of the Mueller-Bellas case to excuse his failure to file a timely individual charge. It held that the “single-filing” rule, or “piggybacking” on other employees’ EEOC charges, only extends to class/collective actions:

“Ruehl argues that because the Mueller-Bellas action had been conditionally certified, Ruehl’s subsequent individual action remains in the ‘context of a class action’ and the single filing rule should therefore be available to him even after decertification. In our view, this proposed extension of the single filing rule does not follow from our precedent, and would make little sense under the facts of this case. We conclude that when a class is decertified because the plaintiffs are not ‘similarly situated,’ those plaintiffs are in a qualitatively different position than plaintiffs in a certified class, and our reasons for applying the single filing rule . . . are inapplicable.”

The Third Circuit also ruled out a theory of equitable estoppel that the employee was misled by the invalid release: Facts “which would have supported Ruehl’s cause of action, were known to him by the time he was terminated in August 1998. He has failed to explain how Viacom’s failure to disclose under the OWBPA, however misleading, caused his failure to pursue a claim based on information he already had.”

Friday, September 7, 2007

Proving a sex harassment claim against an employer under Title VII is challenging enough, but under the “deliberate indifference” standard of Title IX (applying to “any education program or activity receiving Federal financial assistance,” 20 U.S.C. § 1681(a)), proof is very difficult indeed (Gebser v. Lago Vista Independent school District, 524 U.S. 274 (1998); Davis ex rel. LaShonda D. v. Monroe County Board of Education, 526 U.S. 629 (1999)).

The Tenth Circuit was faced with an especially notorious case — the football organization at the University of Colorado Boulder, a program with a long and unsavory reputation for tolerating (and, supposedly, even encouraging) sexual license by its recruits. In Simpson v. University of Colorado, No. 07-1182 (10th Cir. Sept. 6, 2007), the court reversed summary judgment for the school, finding that two female students — who claimed that they had been assaulted six years ago by football players and recruits — presented a genuine issue of material fact about whether the school had taken any meaningful steps to prevent such attacks.

As the court summarized the record:

“By the time of the alleged assaults of Plaintiffs, there were a variety of sources of information suggesting the risks that sexual assault would occur if recruiting was inadequately supervised. These included reports not specific to CU regarding the serious risk of sexual assaults by student-athletes. There was also information specific to CU. In 1997 a high-school girl was assaulted by CU recruits at a party hosted by a CU football player. The local district attorney initiated a meeting with top CU officials, telling them that CU needed to develop policies for supervising recruits and implement sexual-assault-prevention training for football players. Yet CU did little to change its policies or training following that meeting. In particular, player-hosts were not instructed on the limits of appropriate entertainment.”

In CUs case, on the summary judgment record, coaches and others at the school spurred players and recruits into acts of harassment:

“In the 1990s CU paired each visiting recruit with an ‘Ambassador,’ usually female, who escorted the recruit around campus throughout the visit. CU also matched recruits with players selected by the coaching staff, including the head coach. Robert Chichester, an attorney in the CU counsel’s office and later associate athletic director, said that the player-hosts, who were usually underclassmen, were chosen because they knew how to ‘party’ and how ‘to show recruits a good time,’ and would ‘do a good job of entertaining [them].'”

Through decades’ of experience, and through several head coaches (Coaches Bill McCartney and, more recently, Gary Barnett), the school repeatedly heard that players and recruits took sexual advantage of the campus women. There were reports of rape and assault, even leading to criminal investigation by the local DA. Tha panel summarized:

“In sum, the evidence before the district court would support findings that by the time of the assaults on Plaintiffs, (1) Coach Barnett, whose rank in the CU hierarchy was comparable to that of a police chief in a municipal government, had general knowledge of the serious risk of sexual harassment and assault during college-football recruiting efforts; (2) Barnett knew that such assaults had indeed occurred during CU recruiting visits; (3) Barnett nevertheless maintained an unsupervised player-host program to show high-school recruits ‘a good time’; and (4) Barnett knew, both because of incidents reported to him and because of his own unsupportive attitude, that there had been no change in atmosphere since 1997 (when the prior assault occurred) that would make such misconduct less likely in 2001.”

On such a record, sifting through Gebser, Davis and other Title IX cases, the panel concluded that the CU case was different in kind from the ordinary case where the school was unaware or negligent in detecting harassment of students. The court laid down the following legal standard:

“We conclude that a funding recipient can be said to have ‘intentionally acted in clear violation of Title IX,’ Davis, 526 U.S. at 642, when the violation is caused by official policy, which may be a policy of deliberate indifference to providing adequate training or guidance that is obviously necessary for implementation of a specific program or policy of the recipient. Implementation of an official policy can certainly be a circumstance in which the recipient exercises significant ‘control over the harasser and the environment in which the harassment occurs.’ Id. at 644.”

It held that the record presented a triable issue of fact under that standard.

Thursday, September 6, 2007

Disability discrimination cases involving mental illness can be heart-rending, even when (objectively) you can understand the employer’s perspective.

Jarvis v. Potter, No. 06-4090 (10th Cir. Aug. 30, 2007), under the Rehabilitation Act, concerned a mail-handler — a decorated Vietnam vet — afflicted with post-traumatic stress disorder (PTSD). He suffered violent reactions whenever anyone startled him or walked unexpectedly behind him. Combined with his military training and brute strength, his PTSD compelled him to assault unwary passers-by. This pattern escalated until one day he locked the arm of a co-worker (Al Nielson) and hit him, at which point he was removed from duty and eventually terminated. The plaintiff testified that at the time he assaulted Nielson, he was “ready to kill the guy” and he was “afraid [that he] might do it to someone else.”

The Tenth Circuit affirmed summary judgment on the termination claim, holding that the employer established that Jarvis posed a “direct threat” to the workplace. Jarvis requested, as an accommodation, that his co-workers be warned not to approach him from behind. But the Court held that “even if it is appropriate to place on coworkers the burden of protecting themselves from an employee, it is hard to imagine an active workplace in which there would be no chance of accidentally startling a worker. Mr. Jarvis disputes the Postal Service’s determination that Mr. Nielsen had inadvertently startled him, but [another co-worker] Ms. Frazier was merely moving quickly in his direction when he thrust out his arm (on one occasion) and his leg (on the other occasion). The Postal Service was not required to ignore the risk of inadvertent startling.”

I appreciate the Postal Service’s sincerity in responding to the hazard that Jarvis apparently posed, but what exactly is Jarvis supposed to do now to make a living? We know that a certain number of soldiers will return home mentally damaged from the experience of fighting, and that a new crop of future PTSD patients will one day return from Iraq. Who is the employer of last resort for war vets whose brains are misfiring?

Tuesday, September 5, 2007

Clay v. United Parcel Service Inc., No. 05-4243 (6th Cir. Aug. 31, 2007), a 2-1 decision reversing summary judgment on four claims in a multi-plaintiff race discrimination/retaliation case, is notable for at least two reasons:

First, the Sixth Circuit continues to hold the line on an especially employee-friendly Verizon of the honest-belief doctrine — if anything, building upon this court’s improved version. The factual conflict could not be starker: The employee, who filed charges with the EEOC and state agency, was terminated supposedly for violating the three-day, no-call, no-show policy, while the employee denied the violation.

In most circuits, to produce a genuine issue of material fact, the employee would have to demonstrate that the employer at the time of the action lacked a good-faith belief in its attendance records. Here though, under the standard applied by the Sixth Circuit, once the employee contests the truthfulness of the reason, the employer must do more than rest on its assertion of good-faith belief:

“The honest-belief rule is, in effect, one last opportunity for the defendant to prevail on summary judgment. The defendant may rebut the plaintiff’s evidence of pretext, by demonstrating that the defendant’s actions, while perhaps ‘mistaken, foolish, trivial, or baseless,’ were not taken with discriminatory intent. We give the defendant an opportunity to show that its intent was pure, because ‘the focus of a discrimination suit is on the intent of the employer. If the employer honestly, albeit mistakenly, believes in the non-discriminatory reason it relied upon in making its employment decision, then the employer arguably lacks the necessary discriminatory intent.’ [Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998).]”

The court holds that the employer’s silence in response to the employee’s denial of the accuracy of the records produces a genuine issue for trial.

Second, this case offers a rare published decision finding that the employer failed to meet even its limited burden of production (on a claim of denial of transfer) under Burdine to set forth a legitimate, non-discriminatory reason.

The employer’s reason, supposedly supported by a manager’s declaration (the “Mick Declaration”) and a job posting, was that it was reserving specific two counter-clerk positions for vacancies in Akron and Middlebury Heights, Ohio, and that the Akron position (the one said to be sought by the plaintiff) was filled. But the panel majority holds that the minimal evidence does not support this theory:

“. . . UPS’s citations to the record do not ‘clearly set forth, through . . . admissible evidence, the reasons’ why Moss was ineligible for the Middleburg Heights position. The Mick Declaration merely states what did happen; the Akron intent sheet only establishes that UPS posted an intent sheet in Akron. UPS has not cited any affidavits or other evidence that states that UPS intended to fill one customer-counter-clerk position from the Akron facility and one from the Middleburg Heights facility. Because UPS has failed to meet its burden of articulation as set forth in Burdine, we reverse the judgment of the district court with respect to Moss’s disparate treatment claim based on the Middleburg Heights position.”

In response to the dissenter’s argument that the declaration was enough to trigger the employee’s burden of persuasion (to establish that the reason was pretextual), the majority rejoined:

Our problem with the Mick declaration is that there is no nexus between any statement made in the Mick declaration and UPS’s averred reason for why Moss was ineligible for the Middleburg Heights position. Because both the district court and UPS relied on theory of two different positions to exclude Ruddy as similarly situated, Moss produced sufficient evidence to meet her prima facie burden. Thus, the burden of production shifted to UPS to articulate its legitimate, nondiscriminatory reason, through the introduction of admissible evidence. As we explain in this opinion, UPS has failed to meet its burden of production, because it has articulated a reason, but cited nothing in the record which supports that reason.

I worry, of course, that gives the division of the panel (a visiting, out-of-circuit district court judge was the swing vote), this is a case with a higher-than-average probability of being vacated and reheard en banc. While we have it, though, employees’ counsel in the circuit have plenty of cause to be happy with this decision.



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

Web Resources

Other Employment Sites Worth a Spin (updated 12/19/08)

General Employment

Ross’s Employment Law Blog

Workplace Fairness

Workplace Prof Blog

George’s Employment Blog

Jottings by an Employment Lawyer

Employment Law Information Network

HR Lawyer’s Blog

Labor Employment Law Blog

What’s New in Employment Law?


Alaska Employment Law

California Labor & Employment Law Blog

Storm’s California Employment Law

Connecticut Employment Law Blog

Delaware Employment Law Blog

Milwaukee Employment Lawyer

New York Employment Lawyer Blog

Ohio Employers Law Blog

[Virginia] The Laconic Law Blog

Legal-Related, Not Specifically Employment, But Good Reading

How Appealing

Wait A Second! [Second Circuit cases]

Robert Reich’s Blog