Take cheer in a progressive decision coming out of this unlikeliest of venues, the Fifth Circuit. The EEOC obtains a decision that not only gets it a trial on an ADA claim, but also sheds a light on a totally foul way of disposing of summary judgment. And in an unreported decision from the Second Circuit, a $600,000 punitive award stands in spite of cross-appeals by the parties challenging the size of the award.
EEOC v. Chevron Phillips, No. 07-20661 (5th Cir. June 5, 2009): Some folks have already beaten me to reporting this excellent decision from last week from the Fifth Circuit, see here and here. But scant comment has been made about the appalling abuse of summary judgment by the U.S. magistrate judge.
On the merits, the panel holds that the EEOC presented a genuine issue of material fact about whether the charging party (Netterville) â€” suffering from chronic fatigue syndrome (CFS) â€” was substantially limited in the major life activities of caring for herself, sleeping, and thinking. As the panel concludes:
â€œNettervilleâ€™s affidavit attests that she often did not shower for several days because contact with the water was painful and because her arms hurt too much to raise them to wash herself or dry her hair. When she did shower, she needed to rest afterwards. She was unable to cook, shop for food, zip up her own clothes, or even use the bathroom without her sisterâ€™s assistance.
These are the kinds of activities involved in caring for oneself that average people can perform with ease and that the Supreme Court has specifically identified as elements of â€˜caring for oneselfâ€™ under the ADA.â€
* * * *
â€œWith respect to sleeping, Netterville testified that after her CFS symptoms recurred in June or July of 2002, for two weeks of every month she got no more than one or two hours of sleep a night for six or seven days in a row, and then three or four hours of sleep a night on the remaining days, often waking up every hour. Once a month she would sleep for up to seventeen hours at a time. During the day she was often so tired that she fell asleep while driving, needed to rest during lunch, and experienced fatigue and brain fog. This evidence is sufficient
for a jury to reasonably find that Netterville was substantially limited in her sleep as compared to the average person in the population and that the lack of sleep affected her waking hours.â€
* * * *
â€œWith respect to thinking, Netterville testified that she suffered from episodes of aphasia, including times when she forgot her own sonâ€™s name, an inability to concentrate, forgetfulness about how to perform routine tasks, and falling asleep or losing focus while driving. This testimony is sufficient to support a finding that Nettervilleâ€™s CFS created a substantial limitation on Nettervilleâ€™s ability to think relative to the average person.â€
The panel also holds that relapsing conditions may nevertheless constitute â€œdisabilitiesâ€ under the statute, that the employeeâ€™s ability to perform at work during the day did not contradict the record of extreme limitations suffered while at home, that there was also a triable issue of fact about failure to accommodate, and that there was evidence that the employerâ€™s reasons for firing her were false and pretextual. Note also that the panel here decides the case under the pre-amendment ADA, which continues to apply to many pending matters. The 2008 amendment resolved several of the issues in this case in favor of employees.
Yet as a litigator, I was especially drawn to what the district court did with the summary judgment motion:
â€œIn September 2005, the EEOC filed suit on Nettervilleâ€™s behalf against CPChem, alleging that CPChem failed to provide reasonable accommodations for Nettervilleâ€™s disability and discharged her because she had a disability and in retaliation for requesting a reasonable accommodation. CPChem moved for summary judgment. On May 29, 2007, the magistrate judge, in an unusual procedure, questioned Netterville directly under oath, because Nettervilleâ€™s symptoms â€˜seem to have gotten much more severe in [her] affidavit than they were at the time of [her] deposition.'â€
Although the parties apparently did not object to this procedure, the panel does (and rightly so):
â€œ[I]t bears noting that this procedure is unusual and arguably inappropriate at the summary judgment stage. The very fact that the magistrate judge questioned Netterville about perceived discrepancies between her deposition and affidavit tends to indicate that the magistrate judge was weighing evidence and resolving conflicts in the summary judgment evidence, and failing to give the plaintiff the benefit of all favorable inferences that could be drawn.â€
If this is happening in the Southern District of Texas, it is probably occurring elsewhere too, and it appears that the court was actually doing the defendantâ€™s work for it. If so, this decision should help to quell such practice.
Zakre v. Norddeutsche, No. 07-2347 (2d Cir. June 8, 2009): The summary disposition of this employment discrimination case wants for details (such as what the merits of the case were about), but we know that the plaintiff won a jury verdict and a punitive award that must have been very generous. (Presumably, the case was tried under NY/NYC law to get beyond the Title VII caps on damages.) The panel affirms the remittitur of the award to $600K (!), as follows:
â€œThe district court properly analyzed the degree of reprehensibility of NORD/LBâ€™s misconduct and the disparity between the actual harm suffered by Zakre and the punitive damages award in this case. As to the third BMW factor, while Title VII does not provide for civil penalties, the New York City Administrative Code provides for civil penalties of no more than $125,000 for an unlawful discriminatory practice and no more than $250,000 if the discriminatory practice was the result of a â€˜willful, wanton or malicious actâ€™ or if discriminatory harassment or violence occurred. N.Y. City Admin. Code Â§ 8-126(a). Therefore, the district court did not err in reducing the punitive damages award in this case to $600,000.â€
The resort to local/municipal law is a useful way to boost the impact of these cases upon employers, and is recommended in jurisdictions like New York with reasonably progressive local law.