Employment and Labor Law Section
State Bar of Arizona Annual Convention
Labor & Employment Law
Phoenix, Arizona
June 13, 2003

Trends in Employment Discrimination Law

By Richard T. Seymour*

Click here to download a PDF version of this paper

* Law Office of Richard T. Seymour, P.L.L.C., 1150 Connecticut Avenue N.W., Suite 900, Washington, D.C. 20036-4129. Telephone: 202-862-4320. Cell: 202-549-1454. Facsimile: 800-805-1065. E-mail: [email protected]. Some of the information in this paper is used with permission from an upcoming edition of Richard T. Seymour and John F. Aslin, Equal Employment Law Update (Bureau of National Affairs, Washington, D.C., 2006), copyright © American Bar Association, 2006. For copies, contact BNA at 1-800-960-1220; members of the Labor and Employment Law Section are entitled to a 25% discount as a benefit of Section membership. Mention priority code EQL in order to receive the discount.

Fuller versions of this paper will be updated at various times during the year, and updates can be downloaded from www.rickseymourlaw.com. Many of my other CLE papers are also downloadable from this site.

 

Table of Contents

Table of Cases

Adkins v. Labor Ready, Inc.,

303 F.3d 496, 8 WH Cases 2d 7 (4th Cir. 2002) 50, 51

Alicea-Hernandez v. Catholic Bishop of Chicago,

320 F.3d 698, 91 FEP Cases 183 (7th Cir. 2003)

Allen v. Chicago Transit Authority,

317 F.3d 696, 90 FEP Cases 1229 (7th Cir. 2003)

Banks v. East Baton Rouge Parish School Board,

320 F.3d 570, 91 FEP Cases 280 (5th Cir. 2003)

Barnes v. Gorman,

536 U.S. 181, 122 S. Ct. 2097, 13 AD Cases 193 (2002)536 U.S. 181, 122 S. Ct. 2097, 13 AD Cases 193 (2002)

Bazzle v. Green Tree Financial Corp.,

……….. 351 S.C. 244, 569 S.E.2d 349 (S.C. 2002)

Beck v. Boeing Co.,

320 F.3d 1021 (9th Cir. 2003)

Beck v. Boeing Co.,

2003 WL 683797, No. 02–35140 (9th Cir. Feb. 25, 2003) (unpublished)

Berry v. Stevinson Chevrolet,

74 F.3d 980 (10th Cir.1996)

Blanks v. Southwestern Bell Communications, Inc.,

310 F.3d 398, 13 AD Cases 1253 (5th Cir. 2002)

Bowen v. Missouri Department of Social Services,

311 F.3d 878, 90 FEP Cases 782 (8th Cir. 2002)

Boyler v. Cordant Technologies, Inc.,

316 F.3d 1137, 90 FEP Cases 1249 (10th Cir. 2003)

Brooks v. Travelers Insurance Co.,

297 F.3d 167 (2d Cir. 2002)

Brytus v. Spang & Co.,

203 F.3d 238 (3d Cir. 2000)

Buhrmaster v. Overnite Transportartion,

61 F.3d 461 (6th Cir. 1995), cert. denied, 516 U.S. 1078 (1996)

Bui v. Haley,

321 F.3d 1304 (11th Cir. 2003)

Chevron U.S.A. Inc. v. Echazabal,

536 U.S. 73, 122 S. Ct. 2045, 13 AD Cases 97 (2002)

Circuit City Stores, Inc. v. Najd,

294 F.3d 1104, 89 FEP Cases 1149 (9th Cir. 2002)

Citizens First National Bank of Princeton v. Cincinnati Insurance Co.,

178 F.3d 943 (7th Cir. 1999)

Cook v. Niedert,

142 F.3d 1004 (7th Cir. 1998)

Corti v. Storage Technology Corp.,

304 F.3d 336, 89 FEP Cases 1477 (4th Cir. 2002)

Costa v. Desert Palace, Inc.,

299 F.3d 838, 89 FEP Cases 673 (9th Cir. 2002), cert. granted, __ U.S. __, 123 S. Ct. 816 (U.S., Jan. 10, 2003)

Coszalter v. City of Salem,

320 F.3d 968, 19 IER Cases 1114 (9th Cir. 2003), 25, 28

Cush-Crawford v. Adchem Corp.,

(2d Cir. 2001)

Davey v. Lockheed Martin Corp.,

301 F.3d 1204, 89 FEP Cases 1164 (10th Cir. 2002)

De Leon v. Comcar Industries, Inc.,

321 F.3d 1289, 91 FEP Cases 105 (11th Cir. 2003)

Department of Air Force, 436th Airlift Wing, Dover Air Force Base
……….. v. Federal Labor Relations Authority,

316 F.3d 280, 90 FEP Cases 1253, 171 L.R.R.M. 2774 (D.C. Cir. 2003)

Devlin v. Scardelletti,

536 U.S. 1, 122 S. Ct. 2005 (2002)

Downing v. Board of Trustees of University of Alabama,

321 F.3d 1017, 91 FEP Cases 78 (11th Cir. 2003)

Dressler v. Daniel,

315 F.3d 75, 90 FEP Cases 1089 (1st Cir. 2003)

Duncan v. General Motors Corp.,

300 F.3d 928, 89 FEP Cases 1105 (8th Cir. 2002),petition for cert. filed, (U.S., Feb. 13, 2003)

EEOC v. Bd. of Regents of University of Wisconsin System,

288 F.3d 296, 88 FEP Cases 1133 (7th Cir. 2002)

EEOC v. J.B. Hunt Transport, Inc.,

321 F.3d 69, 13 AD Cases 1697 (2nd Cir. 2003)

EEOC v. Liberal R-II School District,

314 F.3d 920, 90 FEP Cases 1032 (8th Cir. 2002)

EEOC v. Luce, Forward, Hamilton & Scripps,

303 F.3d 994, 89 FEP Cases 1134, 13 AD Cases 792 (9th Cir. 2002),……….. reh’g en banc granted, 319 F.3d 1091, 90 FEP Cases 1856 (9th Cir. 2003)

EEOC v. Waffle House, Inc.,

534 U.S. 279, 122 S. Ct. 754, 12 AD Cases 1001 (2002)

Ebbert v. DaimlerChrysler Corp.,

319 F.3d 103, 13 AD Cases 1806 (6th Cir. 2003)

Elmenayer v. ABF Freight System, Inc.,

318 F.3d 130, 90 FEP Cases 1393 (2d Cir. 2003)

Felton v. Polles,

315 F.3d 470, 90 FEP Cases 812 (5th Cir. 2002)

Ferguson v. Countrywide Credit Industries, Inc.,

298 F.3d 778, 89 FEP Cases 706 (9th Cir. 2002)

Fine v. Ryan International Airlines,

305 F.3d 746, 89 FEP Cases 1543 (7th Cir. 2002)

Flanagan v. Ashcroft,

316 F.3d 728, 90 FEP Cases 1416 (7th Cir. 2003)

Flores v. Amigon,

233 F. Supp. 2d 462 (E.D. N.Y. 2002)

Florin v. Nationsbank,

34 F.3d 560 (7th Cir. 1994)

Gagliardo v. Connaught Laboratories, Inc.,

311 F.3d 565, 13 AD Cases 1345 (3rd Cir. 2002)

Gowesky v. Singing River Hospital Systems,

321 F.3d 503, 13 AD Cases 1711 (5th Cir. 2003)

Grantz v. Bollinger,

(U.S., No. 02-516 )

Grayson v. City of Chicago,

317 F.3d 745, 90 FEP Cases 1663 (7th Cir. 2003) 21, 30

Green Tree Financial Corp. v. Bazzle,

__ U.S. __, 123 S. Ct. 817 (2003) (No. 02–634)

Green Tree Financial Corp. v. Bazzle,

__ U.S. __, 123 S. Ct. 817 (U.S., Jan. 10, 2003)

Grutter v. Bollinger,

(U.S., No. 02-241 )

HIM Portland, LLC v. DeVito Builders, Inc.,

317 F.3d 41 (1st Cir. 2003)

Harris v. Allstate Insurance Co.,

300 F.3d 1183 (10th Cir. 2002)

Hason v. Medical Board of California,

279 F.3d 1167, 12 AD Cases 1313 (9th Cir. 2002), reh’g en banc denied,294 F.3d 1166, 13 AD Cases 477 (9th Cir. 2002), cert. granted in part,123 S. Ct. 561, 154 L. Ed. 2d 441 (U.S., Nov. 18, 2002)

Hatley v. Hilton Hotels Corp.,

308 F.3d 473, 89 FEP Cases 1861 (5th Cir. 2002)

Hawkins v. Holloway,

316 F.3d 777, 19 IER Cases 897 (8th Cir. 2003)

Hernandez v. Crawford Building Material Co.,

321 F.3d 528, 91 FEP Cases 97 (5th Cir. 2003)

Hernandez v. Raytheon Co.,

298 F.3d 1030, 13 AD Cases 198 (9th Cir. 2002), cert. granted,__ U.S. __, 2003 WL 396696, 71 U.S.L.W. 3367 (U.S., Feb. 24, 2003)

Herrnreiter v. Chicago Housing Authority,

315 F.3d 742, 90 FEP Cases 801 (7th Cir. 2002)

Higgins v. Metropolitan-North R. Co.,

318 F.3d 422, 90 FEP Cases 1583 (2d Cir. 2003)

Hill v. Lockheed Martin Logistics Management, Inc.,

314 F.3d 657, 90 FEP Cases 1056 (4th Cir. 2003),vacated on grant of rehearing en banc (4th Cir. Feb. 12, 2003)

Hill v. White,

321 F.3d 1334, 91 FEP Cases 40 (11th Cir. 2003)

Hoffman Plastics Compounds, Inc. v. N.L.R.B.,

535 U.S. 137, 122 S. Ct. 1275, 169 L.R.R.M. (BNA) 2769 (2002)

International Brotherhood of Teamsters v. United States,

431 U.S. 324 (1977)

Jensen v. Henderson,

315 F.3d 854, 90 FEP Cases 898 (8th Cir. 2002)

Johnson v. The Kroger Co.,

319 F.3d 858, 91 FEP Cases 145 (6th Cir. 2003)

Jones v. R.R. Donnelley & Sons Co.,

305 F.3d 717, 90 FEP Cases 939 (7th Cir. 2002),petition for cert. filed, (U.S., Feb. 13, 2003)

Juarez v. ACS Government Solutions Group, Inc.,

314 F.3d 1243, 90 FEP Cases 1104 (10th Cir. 2003)

Kang v. U. Lim America, Inc.,

296 F.3d 810, 89 FEP Cases 566 (9th Cir. 2002)

Kemiron Atlantic, Inc. v. Aguakem International, Inc.,

290 F.3d 1287 (11th Cir. 2002)

Kinsella v. Rumsfeld,

320 F.3d 309, 14 AD Cases 4 (2nd Cir. 2003)

Lapides v. Board of Regents of University System of Georgia,

535 U.S. 613, 122 S. Ct. 1640, 18 IER Cases 961 (2002)

Madison v. IBP, Inc.,

257 F.3d 780, 86 FEP Cases 77 (8th Cir. 2001), vacated and remanded for reconsideration on other issues, __ U.S. __, 122 S. Ct. 2583,153 L. Ed. 2d 773 (2002)

Mandell v. County of Suffolk,

316 F.3d 368, 90 FEP Cases 1328 (2d Cir. 2003)

Marrero v. Goya of Puerto Rico, Inc.,

304 F.3d 7, 89 FEP Cases 1361 (1st Cir. 2002)

Mathur v. Board of Trustees of Southern Illinois University,

317 F.3d 738, 90 FEP Cases 1537 (7th Cir. 2003)

McCaskill v. SCI Management Corp.,

298 F.3d 677, 89 FEP Cases 830 (7th Cir. 2002)

McDonnell v. Cisneros,

84 F.3d 256 (7th Cir. 1996), “

McFarland v. Henderson,

307 F.3d 402, 90 FEP Cases 23 (6th Cir. 2002)

Miller-El v. Cockrell,

__ U.S. __, 123 S. Ct. 1029, 154 L.Ed.2d 931 (2003)

Morrison v. Circuit City Stores, Inc.,

317 F.3d 646, 90 FEP Cases 1697 (6th Cir. 2003)

Murray v. United Food and Commercial Workers International Union,

289 F.3d 297, 88 FEP Cases 1185 (2d Cir. 2002)

National R.R. Passenger Corp. v. Morgan,

536 U.S. 101, 122 S. Ct. 2061, 88 FEP Cases 1601 (2002)

Nevada Department of Human Resources v. Hibbs

__ U.S. __, __ S. Ct. __, 2003 WL 21210426, 8 WH Cases 2d 1221 (2003)

Nguyen v. City of Cleveland,

312 F.3d 243, 19 IER Cases 618 (6th Cir. 2002), dismissed .

Nichols v. Muskingum College,

318 F.3d 674, 90 FEP Cases 1744 (6th Cir. 2003)

Occidental Life Insurance Co. of Cal. v. EEOC,

432 U.S. 355 (1977)

Perez v. Globe Airport Security Services Inc.,

253 F.3d 1280 (11th Cir. 2001);

Quantock v. Shared Marketing Services, Inc.,

312 F.3d 899, 90 FEP Cases 883 (7th Cir. 2002)

Raytheon Co. v. Hernandez,

__ U.S. __, 2003 WL 396696, 71 U.S.L.W. 3367 (U.S., Feb. 24, 2003)

Rhode Island Department of Environmental Management v. United States,

304 F.3d 31 (1st Cir. 2002)

Riccard v. Prudential Insurance Co.,

307 F.3d 1277 (11th Cir. 2002)

Rossignol v. Voorhaar,

316 F.3d 516 (4th Cir. 2003)

Ruder v. Maine General Medical Center,

204 F. Supp. 2d 16, 7 WH Cases 2d 1441 (D. Me. 2002

Saks v. Franklin Covey Co.,

316 F.3d 337, 90 FEP Cases 1266, 29 EB Cases 2185 (2nd Cir. 2003)

Salitros v. Chrysler Corp.,

306 F.3d 562, 13 AD Cases 1057 (8th Cir. 2002)

Sanders v. May Department Stores Co.,

315 F.3d 940, 8 WH Cases 2d 577 (8th Cir. 2003)

Sandstad v. CB Richard Ellis, Inc.,

309 F.3d 893, 90 FEP Cases 248 (5th Cir. 2002), petition for cert. filed, 71 USLW 3522 (U.S., Jan. 27, 2003)

Shellenberger v. Summit Bancorp, Inc.,

318 F.3d 183, 13 AD Cases 1716 (3rd Cir. 2003)

Singh v. Jutla & C.D. & R’s Oil, Inc.,

214 F. Supp. 2d 1056, 8 WH Cases 2d 165 (N.D. Calif. 2002)

Skelton v. General Motors Corp.,

860 F.2d 250 (7th Cir. 1988)

Smart v. International Brotherhood of Electrical Workers, Local 702,

315 F.3d 721, 90 FEP Cases 461, 171 L.R.R.M. 2257 (7th Cir. 2002)

Staton v. Boeing Co.,

313 F.3d 447, 90 FEP Cases 641 (9th Cir. 2002) 56, 69

Timm v. Progressive Steel Treating, Inc.,

137 F.3d 1008 (7th Cir. 1998)

Timmons v. White,

314 F.3d 1229, 13 AD Cases 1633 (10th Cir. 2003)

Tinder v. Pinkerton Security,

305 F.3d 728, 89 FEP Cases 1537 (7th Cir. 2002)

Traylor v. Brown,

295 F.3d 783, 89 FEP Cases 1438 (7th Cir. 2002)

Treglia v. Town of Manlius,

313 F.3d 713, 13 AD Cases 1537 (2d Cir. 2002) 16, 23, 27, 31, 48

Trout v. Secretary of Navy,

317 F.3d 286, 91 FEP Cases 187 (D.C. Cir. 2003)

U.S. Airways, Inc., v. Barnett,

535 U.S. 391, 122 S. Ct. 1516, 12 AD Cases 1729 (2002)

United States v. Mississippi Department of Public Safety,

321 F.3d 495, 13 AD Cases 1706 (5th Cir. 2003)

Van Horn v. Specialized Support Services, Inc.,

C.A. No. 4:01-cv-90550 (S.D. Iowa Jan. 29, 2003)

Vasquez v. County of Los Angeles,

307 F.3d 884, 89 FEP Cases 1705 (9th Cir. 2002)

Vesprini v. Shaw Contact Flooring Services, Inc.,

315 F.3d 37, 90 FEP Cases 1038 (1st Cir. 2002)

Warren v. Prejean,

301 F.3d 893 (8th Cir.2002)

Weeks v. Harden Manufacturing Corp.,

291 F.3d 1307, 88 FEP Cases 1482 (11th Cir. 2002)

Wexler v. White’s Furniture,

317 F.3d 564, 90 FEP Cases 1551 (6th Cir. 2003)

Wright v. AmSouth Bancorporation,

320 F.3d 1198, 91 FEP Cases 41 (11th Cir. 2003)

Zeng Liu v. Donna Karan International, Inc.,

207 F. Supp. 2d 191 (S.D. N.Y. 2002)

Zubi v. AT&T Corp.,

219 F.3d 220, 83 FEP Cases 417 (3d Cir. 2000)

I. The Statistics

The number of new employment discrimination cases filed

in Federal district courts in 2002 remained stable from the year before:

New EEO Cases Filed in 12 months ending Dec. 31, 2001: 21,062
New EEO Cases Filed in 12 months ending Sept. 30, 2002: 20,955

 

The striking figure is there was almost a 10% increase in

civil filings in U.S. District Courts from the twelve months ending September 30, 2001, to the twelve months ending September 30, 2002, while there was a slight decline in employment discrimination filings. There has been a 13.3% decline since 1997 in the number of new fair-employment cases filed in Federal district courts, while there was a slight increase in all civil filings over these five years. The Supreme Court has increasingly emphasized the importance of employers having internal compliance and complaint systems, and it is tantalizing to speculate that the reduction in filings was caused by the strengthening of such systems.

EEO cases remained a high proportion of civil filings,but

the Federal-question EEO cases were an even higher proportion of Federal-question filings:

EEO Cases in 2002, as % of All Civil Cases: 8.8%, or one out of every 11.4 civil cases
Federal-question EEO cases in 2002, as % of all Federal-question civil cases: 11.2%, or one out of every 9.0 Federal-question civil cases

The number of EEO cases initially filed as class actions declined a little from 2000, but the striking factor is that the number of FLSA collective actions again surpassed the number of EEO class actions, by a widening margin:

New EEO Class Action Filings in 12 months ending Dec. 31, 2001: 77
New EEO Class Action Filings in 12 months ending Sept. 30, 2002: 73
New FLSA Collective-Action Filings in 12 months ending Dec. 31, 2001: 79
New FLSA Collective-Action Filings in 12 months ending Sept. 30, 2002: 86

719 Federal-question EEO cases were decided after oral

argument in the twelve months ending September 30, 2002; this is the category of cases most likely to result in published opinions. EEO cases were 19% of all civil Federal-question cases decided after oral argument, or one in every 5.3 civil Federal-question cases decided after oral argument.

Federal-question fair-employment cases are substantially

more likely than other federal-question civil cases to reach oral argument: 25.6% of EEO federal-question appeals filed during this period made it to oral argument, compared with only 16.3% of all civil Federal-question cases filed during this period.

The next page shows the disproportionate influence the

Seventh and Eighth Circuits have on the development of fair-employment law, as measured by their output of published decisions worth covering in Seymour and Aslin, Equal Employment Law Update, Fall 2000 Edition (BNA, 2003), copyright American Bar Association, 2003 (reprinted with permission). This is from the Preface:

CourtD.C. Circuit
Federal Circuit
1st Circuit
2d Circuit
3d Circuit
4th Circuit
5th Circuit
6th Circuit
7th Circuit
8th Circuit
9th Circuit
10th Circuit
11th CircuitTotal Circuit
DecisionsSupreme CourtTotal Decisions
Number of Cases
Covered in Book82
13
133
242
122
102
216
189
466
371
192
190
1702,4882911,730
Percent of All Circuit Cases Covered 3.3%
0.5%
5.3%
9.7%
4.9%
4.1%
8.7%
7.6%
18.7%
14.9%
7.7%
7.6%
6.8%100.0%N.A.

 

If the Second and Fifth Circuits are added to the Seventh and Eighth Circuits, just four of the thirteen Circuits account for more than half of the published EEO opinions of interest to practitioners.

II. Legislative and Regulatory Action, and Related Judicial
Action

A. The ABA Has Endorsed the Civil Rights Tax Relief Act

 

On Feb. 10, 2003, the ABA House of Delegates unanimously

passed the following Recommendation:

RESOLVED, That the American Bar Association
recommends that Congress enact the Civil Rights Tax Relief Act (H.R. 840 and S. 917, as introduced in the 107th Congress) or similar legislation that would provide relief to civil rights and employee complainants by, in whole or in part, (1) treating compensatory damages (other than back pay and front pay) in civil rights and employment cases in the same manner as compensatory damages in personal physical injury cases; (2) providing that no portion of the award or settlement paid in civil rights and employment cases to cover attorneys fees and expenses should be taxable to the client; and (3) allowing income averaging for complainants who receive in one year awards or settlements of back pay or front pay covering more than one year.

 

FURTHER RESOLVED, That the American Bar
Association recommends the retention of the present rule that awards of back pay, front pay, and punitive damages are taxable.

 

The Recommendation was sponsored and spearheaded by

the ABA Section of Labor and Employment Law. It was co-sponsored by the Business Law Section, the Dispute Resolution Section, the General Practice, Solo and Small Firm Section, the Litigation Section, the Section on Individual Rights and Responsibilities, the Section of State and Local Government Law, the Tort Trial and Insurance Practice Section, the Senior Lawyers Division, the Commission on Racial and Ethnic Diversity in the Profession, the Illinois State Bar Association, the Massachusetts Bar, the Ohio State Bar Association, the Washington State Bar Association, and the Virgin Islands Bar Association. The Tax Section did not oppose the measure.

B. Bans on Confidentiality

 

A number of courts are significantly restricting the ability of parties to agree to settlements with confidential terms, or to designate certain documents as confidential. Attorneys should check recent decisions, their local rules and standing orders, as well as those of any other courts in which they practice.

Numerous documents produced in discovery in

employment-related cases should legitimately be deemed confidential, and some of these should for legitimate reasons be filed only under seal. Both sides may have documents that need to be protected, and may be able to make a joint presentation in camera as to why certain documents should be protected.

Overreaching by designating too many documents as

confidential can endanger the ability of the parties to keep confidential the smaller number of documents that truly should be kept confidential.

Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co.,

178 F.3d 943 (7th Cir. 1999), is a good example of a decision limiting the treatment of documents as confidential.

C. Proposed Changes in the Federal Rules of Civil
Procedure

 

On September 24, 2002, the United States Judicial

Conference recommended that the Supreme Court approve the revisions to Rule 23 that are discussed below. The Supreme Court has until May 1, 2003, to take action. If the Supreme Court approves these changes, they will be sent to Congress, which has a statutory period of seven months within which to take action to block or modify the rules. If not rejected or revised by Congress, the proposed rules would go into effect on December 1, 2003.

The Summary, Report, and appendices on all rules

changes awaiting final action, and to go into effect on December 1, 2003, in the event that final action is favorable, can be downloaded from the web site http://www.uscourts.gov/rules/jc0902.html maintained by the Administrative Office of the U.S. Courts.

1. Changes in Rule 23 on Class ActionsSome of the proposed changes, and the revised Advisory

Committee Notes on the changes, are set forth below, beginning on p. 96 of the Report of the Civil Rules Advisory Committee: The rest of the changes will be described orally.

Rule 23. Class Actions

* * * * *

 

(c) Determining by Order Whether to Certify a Class
Action; Appointing Class Counsel; Notice and Membership in Class; Judgment; Multiple Classes and Subclasses.

 

(1) (A) When a person sues or is sued as a representative
of a class, the court must—at an early practicable time—determine by order whether to certify the action as a class action.

 

(B) An order certifying a class action must define the class
and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).

 

(C) An order under Rule 23(c)(1) may be altered or amended
before final judgment.

 

(2) (A) For any class certified under Rule 23(b)(1) or (2), the
court may direct appropriate notice to the class.

 

(B) For any class certified under Rule 23(b)(3), the court
must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must concisely and clearly state in plain, easily understood language:
  • the nature of the action,
  • the definition of the class certified,
  • the class claims, issues, or defenses, [Page 97]
  • that a class member may enter an appearance through counsel if the member so desires,
  • that the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded, and
  • the binding effect of a class judgment on class members under Rule 23(c)(3).
(3) The judgment in an action maintained as a class action

under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision (b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.

(4) When appropriate (A) an action may be brought or

maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.

2. Changes in Rule 51 on Instructions

Rule 51. Instructions to Jury; Objections; Preserving a Claim of Error

(a) Requests.

 

(1) A party may, at the close of the evidence or at an earlier

reasonable time that the court directs, file and furnish to every other party written requests that the court instruct the jury on the law as set forth in the requests.

(2) After the close of the evidence, a party may:

 

(A) file requests for instructions on issues that could
not reasonably have been anticipated at an earlier time for requests set under Rule 51(a)(1), and
(B) with the court’s permission file untimely requests
for instructions on any issue.

 

(b) Instructions. The court:

 

(1) must inform the parties of its proposed instructions and

proposed action on the requests before instructing the jury and before final jury arguments;

(2) must give the parties an opportunity to object on the

record and out of the jury’s hearing to the proposed instructions and actions on requests before the instructions and arguments are delivered; and

(3) may instruct the jury at any time after trial begins and

before the jury is discharged.

(c) Objections.

 

(1) A party who objects to an instruction or the failure to give

an instruction must do so on the record, stating distinctly the matter objected to and the grounds of the objection.

(2) An objection is timely if:

 

(A) a party that has been informed of an instruction or

action on a request before the jury is instructed and before final jury arguments, as provided by Rule 51(b)(1), objects at the opportunity for objection required by Rule 51(b)(2);

(B) a party that has not been informed of an instruction

or action on a request before the time for 50 objection provided under Rule 51(b)(2) objects promptly after learning that the instruction or request will be, or has been, given or refused.

(d) Preserving a Claim of Assigning Error; Plain Error.

(1) A party may assign as error:

 

(A) an error in an instruction actually given if that party
made a proper objection under Rule 51(c); or

 

(B) a failure to give an instruction if that party made a
proper request under Rule 51(a), and — unless the court made a definitive ruling on the record rejecting the request — also made a proper objection under Rule 51(c);. or

 

(2) A court may notice consider a plain error in or omission from

the instructions affecting substantial rights that has not been preserved as required by Rule 65. 51(d)(1)(A) or (B).

D. Personal Identifying Information and Identity Theft

 

The United States Judicial Conference Committee on Court

Administration and Case Management recommended on June 26, 2001, that personal identifiers such as Social Security Numbers, dates of birth, and financial account numbers be partially redacted for purposes of imaging documents to be made available over the Internet and in hard-copy court files.

Recommendation: That documents in civil case files
should be made available electronically to the same extent that they are available at the courthouse with one exception (Social Security cases should be excluded from electronic access) and one change in policy (the requirement that certain “personal data identifiers” be modified or partially redacted by the litigants). These identifiers are Social Security numbers, dates of birth, financial account numbers and names of minor children.

 

The recommendation provides for liberal remote
electronic access to civil case files while also adopting some means to protect individual privacy. Remote electronic access will be available only through the PACERNet system which requires registration with the PACER service center and the use of a log in and password. This creates an electronic trail which can be retraced in order to determine who accessed certain information if a problem arises. Further, this recommendation contemplates that certain personal, identifying information will not be included in its full and complete form in case documents, whether electronic or hard copy. For example, if the Social Security number of an individual must be included in a document, only the last four digits of that number will be used whether that document is to be filed electronically or at the courthouse. If the involvement of a minor child must be mentioned, only that child’s initials should be used; if an individual’s date of birth is necessary, only the year should be used; and, if financial account numbers are relevant, only the last four digits should be recited in the document. It is anticipated that as courts develop local rules and instructions for the use and implementation of Electronic Case Filing (ECF), such rules and instructions will include direction on the truncation by the litigants of personal identifying information. Similar rule changes would apply to courts which are imaging documents.

Report on Privacy and Public Access to Electronic Case Files, p. A–6, available on the Internet at http://www.uscourts.gov/Press_Releases/att81501.pdf. The committee is engaged in a more detailed study of privacy and public access, id. at pp. A–11 ff., and stated that “these recommendations may require frequent re-examination and revision.” Id. at p. A–5. The committee made its recommendation so as to discourage “the possible development of a ‘cottage industry’ headed by data re-sellers,” id. at p. A–7, and is intended to be implemented by the development of local rules providing guidance, id. at p. A–6. This process has not yet occurred.

The Judicial Conference adopted the recommended

policies. September 19, 2001 News Release available at http://www.uscourts.gov/Press_Releases/jc901a.pdf, p. 2. It described the policy in question as follows:

Documents in civil cases should be made available
electronically to the same extent that they are available at the courthouse with one exception (Social Security cases should be excluded from electronic access) and one change in policy (certain “personal data identifiers” should be modified or partially redacted by the litigants; these identifiers are Social Security numbers, dates of birth, financial account numbers, and names of minor children).

III. The Constitution and Statutes

A. The Fourteenth Amendment

 

Grutter v. Bollinger (No. 02–241) and Grantz v. Bollinger

(No. 02–516), involve challenges to race-conscious selection procedures of the University of Michigan undergraduate school and law school. The brief for the United States did not attack educational diversity as compelling governmental interest in educational admissions, but argued instead that the availability of race-neutral alternatives required that the programs be stricken. The alternatives included the promotion of “experiential, geographical, political, or economic diversity,” modifying or discarding “facially neutral admissions criteria that tend to skew admissions results in a way that denies minorities meaningful access to public institutions,” etc. BNA Employment Discrimination Report, Jan. 22, 2003, at 113.

Downing v. Board of Trustees of University of Alabama ,

321 F.3d 1017, 91 FEP Cases 78 (11th Cir. 2003), held that the Equal Protection Clause prohibits State employees from same-sex discrimination and harassment.

B. 42 U.S.C. § 1981

 

Felton v. Polles, 315 F.3d 470, 481–83, 90 FEP Cases 812

(5th Cir. 2002), reversed the denial of qualified immunity and held in part that a supervisor in a State agency cannot be liable for damages in his or her individual capacity if sued for racial discrimination under § 1981, unless he or she has also been sued under § 1983. Because plaintiff did not do so, his § 1981 claim was subject to dismissal for failure to state a claim.

Smart v. International Brotherhood of Electrical Workers,

Local 702, 315 F.3d 721, 90 FEP Cases 461, 171 LRRM 2257 (7th Cir. 2002), affirmed the grant of summary judgment to the defendant union on the plaintiff employer’s claim held that stated that it was “skeptical” that the plaintiff employer could sue a union under Title VII for alleged discrimination against the employer for employing a black employee.

C. Title VII of the Civil Rights Act of 1964

 

1. CoverageSmart v. International Brotherhood of Electrical Workers,

Local 702, 315 F.3d 721, 90 FEP Cases 461, 171 LRRM 2257 (7th Cir. 2002), stated that it was “skeptical” that the plaintiff employer could sue a union under Title VII for alleged discrimination against the employer for employing a black employee.

Kang v. U. Lim America, Inc. , 296 F.3d 810, 814, 89 FEP

Cases 566 (9th Cir. 2002), reversed the grant of summary judgment to the defendant. Plaintiff worked for U. Li, America, which had six employees. “However, the U.S.-based company owned and operated U. Lim de Mexico, an electronics manufacturing company in Tijuana, Mexico. All of U. Lim America’s employees worked at the Tijuana factory. U. Lim de Mexico employed between 50–150 workers—all citizens of Mexico.” Id. at 814 (footnote omitted). The court held that there are four relevant factors: “The four factors are: ‘(1) interrelation of operations; (2) common management; (3) centralized control of labor relations; and (4) common ownership or financial control.’” Id. at 815 (citation and footnote omitted). The court held that the first factor was met. “U. Lim America and U. Lim de Mexico shared a facility in Mexico; neither had a facility in the United States. All of U. Lim America’s employees worked in the Tijuana factory, commuting across the border each day. U. Lim America kept U. Lim de Mexico’s accounts, issued its paychecks and paid its bills.” (Citation omitted.) The court held that there was common management. “Yoon was the Vice- President of U. Lim America and President of U. Lim de Mexico. U. Lim de Mexico supervisors reported directly to U. Lim America’s managers.” Id. (citation omitted). There was also centralized control of labor relations. “U. Lim America had the authority to hire and fire U. Lim de Mexico employees. The Mexican supervisors reported to U. Lim America management. U. Lim America had essentially complete control over U. Lim de Mexico’s labor relations.” The court held that there was also common ownership or financial control. “U. Lim America and U. Lim de Mexico were owned and controlled by the same person, Yoon’s father Ki Hwa Yoon. Furthermore, U. Lim de Mexico essentially made no profit and transferred all its funds to U. Lim America.” Id. at 816 (citation omitted). Finally, the court held that the foreign employees of U. Lim Mexico must be counted for purposes of determining Title VII coverage even though they were not themselves covered by Title VII. Id. at 817. Judge Fernandez dissented. Id. at 821–23.

2. National Origin vs. Racial DiscriminationVasquez v. County of Los Angeles , 307 F.3d 884, 892 n.24,

89 FEP Cases 1705 (9th Cir. 2002), affirmed the grant of summary judgment to the Title VII defendant. The court held that a claim that a person was discriminated against because he was Hispanic was a claim of racial discrimination, not national origin discrimination.

3. Religious Exemption and Ministerial ExceptionAlicea-Hernandez v. Catholic Bishop of Chicago , 320 F.

3d 698, 91 FEP Cases 183 (7th Cir. 2003), held that the position of Hispanic Communications Manager was exempt from Title VII under the “ministerial exception” to coverage. “Her duties included: composing media releases for the Hispanic community; composing correspondence for the Cardinal; developing a working relationship with the Hispanic media and parishes in the Hispanic community to promote Church activities; developing a working relationship with the Hispanic community to enhance community involvement; composing articles for Church publications; and translating Church materials into Spanish.”

4. Religious DiscriminationMandell v. County of Suffolk , 316 F.3d 368, 90 FEP Cases

1328 ( 2d Cir. 2003), reversed the grant of summary judgment to the defendant County. Plaintiff is a Jewish former police official claiming that the defendant engaged in religious discrimination against all non-Catholics. The court held that Title VII covers such a claim, and that plaintiff was under no obligation to show that his religion was the specific target of discrimination.

5. Employee Health Plan’s Infertility Treatment
Exclusion
Saks v. Franklin Covey Co. , 316 F.3d 337, 90 FEP Cases

1266, 29 EB Cases 2185 (2nd Cir. 2003), affirmed the grant of summary judgment to the defendant, holding that the exclusion of infertility treatments from the employee health plan did not violate Title VII or the Pregnancy Discrimination Act because both men and women were affected.

D. The Age Discrimination in Employment Act

 

Vesprini v. Shaw Contact Flooring Services, Inc. , 315 F.3d

37, 90 FEP Cases 1038 ( 1st Cir. 2002), affirmed the grant of summary judgment to the ADEA defendant. The 71-year-old plaintiff and his son sold their flooring business to another company and the plaintiff entered into a three-year contract to remain as President. He signed an Ethical Practices Agreement that forbade the use of profanity in the workplace. After a reorganization, a 41-year-old was named as plaintiff’s supervisor. After some incidents, the plaintiff lost his temper, engaged in an outburst of vituperative profanity, and was fired effective when his contract ran out, on the condition that he not visit the corporate offices without notice. The court’s discussion of age-biased remarks is described below. The court held that there was no adequate evidence of pretext.

EEOC v. Bd. of Regents of University of Wisconsin System ,

288 F.3d 296, 302, 88 FEP Cases 1133 ( 7th Cir. 2002), affirmed the judgment for the EEOC. The court rejected defendant’s argument that the EEOC had not established a prima facie case for all of the persons for whom it sought relief, because some of them were not ten years older than their replacements. The court held that the ten-year line was not inflexible, and that other evidence showed the discrimination was based on age.

E. The Americans with Disabilities Act

 

1. CoverageRaytheon Co. v. Hernandez, __ U.S. __, 2003 WL 396696,

71 USLW 3367 (U.S., Feb. 24, 2003) (No. 02–749), granted certiorari to review the Ninth Circuit’s decision in Hernandez v. Raytheon Co., 298 F.3d 1030, 13 AD Cases 198 (9th Cir. 2002), that an employer policy of not rehiring employees fired for misconduct violates the ADA when it is applied to bar the rehire of a worker fired for drug use, who before applying for rehire went successfully through a treatment program.

EEOC v. J.B. Hunt Transport, Inc. , 321 F.3d 69, 13 AD

Cases 1697 (2nd Cir. 2003), affirmed the grant of summary judgment to the ADA defendant. The defendant “chose not to employ over-the-road truck drivers who used prescription medications with side effects that might impair driving ability.” Id. at 71. The court rejected the EEOC’s challenge, holding that the Commission had not shown that J.B. Hunt regarded these applicants as substantially limited in a major life activity. “Driving freight-carrying tractor-trailer trucks over long distances for extended periods of time is neither a ‘class of jobs’ nor a ‘broad range of jobs,’ as the EEOC alleges, but rather a specific job with specific requirements. . . . He or she must be able to stay alert and withstand the mesmerizing affect of driving an eighteen-wheel vehicle for hours at a stretch, sometimes at night, with continuous vibration over long distances. Given these demanding requirements, the fact that one may not be able to perform the specific job of a Hunt OTR driver does not mean that one could not successfully engage in other types of truck driving, let alone in other kinds of safety-sensitive work.” Id. at 75. Judge Sotomayor dissented. Id. at 78–83.

Gagliardo v. Connaught Laboratories, Inc. , 311 F.3d 565,

569, 13 AD Cases 1345 (3rd Cir. 2002), affirmed the award of $2.3 million in compensatory and punitive damages to the plaintiff, who suffered from multiple sclerosis and was repeatedly denied a reasonable accommodation. The court rejected defendant’s contention that she was not disabled. “Gagliardo, however, submitted evidence she was limited in the major life activities of concentrating and remembering (more generally, cognitive function). Our court has held that such activities are major life activities.” (Citations omitted.) The court also rejected defendant’s argument that plaintiff had not shown she was “substantially limited” in these activities:

Contrary to CLI’s assertions, we hold that Gagliardo
did present witnesses from whose testimony a jury could reasonably conclude she was substantially limited in her ability to concentrate and remember. First, Gagliardo’s physician, Dr. Barbour, testified that there was no cure for MS and that the MS produced Gagliardo’s fatigue. Dr. Barbour also expressed his opinion as an expert that Gagliardo was substantially limited in her ability to, among other things, learn, work, and think. Second, Gagliardo testified she experienced muscle spasms and fatigue. Third, four of Gagliardo’s coworkers testified as to her fatigue and muscle spasms. Fourth, Gagliardo produced evidence that her supervisor recognized her memory and concentration problems, having provided Gagliardo with video and audio tapes to assist Gagliardo in overcoming her memory problems. Lastly, Gagliardo’s son and her husband similarly testified that she was often fatigued and had trouble concentrating and focusing.

Id. at 569–70.

Blanks v. Southwestern Bell Communications, Inc.,

310 F.3d 398, 13 AD Cases 1253 ( 5th Cir. 2002), affirmed the grant of summary judgment to the defendant. The court held that, where only the plaintiff’s reproductive ability was impaired and he did not in any event want more children, he was not substantially impaired.

2. “Regarded As” DisabledGowesky v. Singing River Hospital Systems , 321 F.3d 503,

508, 13 AD Cases 1711 ( 5th Cir. 2003), affirmed the grant of summary judgment to the ADA defendant. Plaintiff was an emergency room physician who accidentally contracted Hepatitis C while caring for a patient. After being off work for two years while undergoing treatment, the hepatitis was in remission and she sought to regain her job. Hospital administrators remarked that it was not clear she could go back to the emergency room, that she would need clearance from a neutral physician, that she might have to have weekly blood draws and attend a refresher course, and that she might need to provide assurances she was not infectious. However, the hospital scheduled her to return to work on June 1, 1999, and when she did not appear she was re-scheduled to return on September 1. She did not appear either time. In the meantime, a failed effort to reorganize and contract out the emergency room services led to the termination of all personnel with guaranteed rehire by the new entity, and then interim and permanent contracts back with the defendant. The court held that the supervisory remarks did not show that the declarants thought her unable to work as a physician, just that she might need to practice in a less exposed area. She was thus not regarded as disqualified from a range of jobs. It also held that her “regarded as” claim was doomed by her failure to appear for work:

Equally detrimental to her claim is the hospital’s
point that Gowesky could not have been regarded as disabled by the supervisors because they kept reassigning her to the emergency room schedule. It was Gowesky who repeatedly declined to return to work. She cannot succeed on the “regarded as disabled” element of either claim when her employer never limited her job duties or hindered her return to the full range of duties.

 

3. Direct ThreatChevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 122 S. Ct.

2045, 13 AD Cases 97 (2002), unanimously upheld the EEOC regulation, 29 C.F.R. § 1630.15(b)(2), “permitting the defense that a worker’s disability on the job would pose a ‘direct threat’ to his health.” Id. at 2048. The plaintiff had worked for an independent contractor at the defendant’s oil refinery, and twice applied and was rejected for hire by the defendant. His medical examinations showed liver abnormality or damage, apparently caused by Hepatitis C, “which Chevron’s doctors said would be aggravated by continued exposure to toxins at Chevron’s refinery.” Id. Each time, the company withdrew its offer of employment. The second time, Chevron asked the contractor to reassign him to a job where he would not be exposed to harmful chemicals or to remove him from the refinery. He was then laid off. The court recognized that the ADA explicitly provided only that the employer may use a qualification standard that includes “‘a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace,’ § 12113(b), if the individual cannot perform the job safely with reasonable accommodation, § 12113(a).” Id. at 2049. The Court used a “three strikes” metaphor in rejecting the argument that Congress specified direct threats to others in the workplace, and so must have intended to exclude direct threats to oneself. The Court described the first strike as being in the text of the Act, allowing employers broad authority to establish qualification standards. “Far from supporting Echazabal’s position, the expansive phrasing of ‘may include’ points directly away from the sort of exclusive specification he claims.” Id. at 2050 (citations omitted.) The court also held that the expression unius exclusio alterius maxim has an “essential extrastatutory ingredient” missing from the ADA: “The canon depends on identifying a series of two or more terms or things that should be understood to go hand in hand, which are abridged in circumstances supporting a sensible inference that the term left out must have been meant to be excluded.” Id. The Court then went on: “Strike two in this case is the failure to identify any such established series, including both threats to others and threats to self, from which Congress appears to have made a deliberate choice to omit the latter item as a signal of the affirmative defense’s scope.” Id. It held that no inference could be drawn from Congress’s repetition of the “direct threat” statutory language in the Rehabilitation Act, without the gloss of the EEOC’s Rehabilitation Act regulation including threats to self. Three other agencies had not included threat-to-self provisions in their regulations. The Court held that the Congressional language in light of the regulation was “equivocal.” Id. at 2051. It continued:

Instead of making the ADA different from the Rehabilitation Act on the point at issue, Congress used identical language, knowing full well what the EEOC had made of that language under the earlier statute. Did Congress mean to imply that the agency had been wrong in reading the earlier language to allow it to recognize threats to self, or did Congress just assume that the agency was free to do under the ADA what it had already done under the earlier Act’s identical language? There is no way to tell.

Id. The Court then wrapped up its holding against application of the maxim:

There is even a third strike against applying the
expression-exclusion rule here. It is simply that there is no apparent stopping point to the argument that by specifying a threat-to-others defense Congress intended a negative implication about those whose safety could be considered. When Congress specified threats to others in the workplace, for example, could it possibly have meant that an employer could not defend a refusal to hire when a worker’s disability would threaten others outside the workplace? If Typhoid Mary had come under the ADA, would a meat packer have been defenseless if Mary had sued after being turned away? See 42 U.S.C. § 12113(d) . Expressio unius just fails to work here.

Id. The Court held that the EEOC’s regulation is entitled to Chevron deference. It rejected the argument that the EEOC’s regulation “allowed the kind of workplace paternalism the ADA was meant to outlaw,” because the employer here was acting on the basis of specific and documented medical risks to the worker. Id. at 2052–53.

4. Reasonable AccommodationGagliardo v. Connaught Laboratories, Inc. , 311 F.3d 565,

13 AD Cases 1345 (3rd Cir. 2002), held that an award of $300,000 in punitive damages was appropriate where the defendant repeatedly failed to make reasonable accommodations for the plaintiff, who had multiple sclerosis.

5. Reasonable Accommodation and Seniority
Systems
U.S. Airways, Inc., v. Barnett, 535 U.S. 391, 122 S. Ct. 1516,

12 AD Cases 1729 (2002), held that an otherwise reasonable ADA accommodation is ordinarily unreasonable if it conflicts with the rights of other employees under a seniority system, whether collectively bargained or unilaterally imposed, unless the plaintiff shows special circumstances that would make an exception to the seniority system reasonable in the case at hand:

The plaintiff might show, for example, that the employer, having retained the right to change the seniority system unilaterally, exercises that right fairly frequently, reducing employee expectations that the system will be followed—to the point where one more departure, needed to accommodate an individual with a disability, will not likely make a difference. The plaintiff might show that the system already contains exceptions such that, in the circumstances, one further exception is unlikely to matter. We do not mean these examples to exhaust the kinds of showings that a plaintiff might make. But we do mean to say that the plaintiff must bear the burden of showing special circumstances that make an exception from the seniority system reasonable in the particular case. And to do so, the plaintiff must explain why, in the particular case, an exception to the employer’s seniority policy can constitute a “reasonable accommodation” even though in the ordinary case it cannot.

Id. at 1525. This is not what employers wanted. The Court also rejected U.S. Airways’ argument that the ADA does not provide for affirmative action, and that any accommodation that would dispense with a rule generally applicable to all employees would constitute affirmative action unwarranted by the statute:

In sum, the nature of the “reasonable accommodation”
requirement, the statutory examples, and the Act’s silence about the exempting effect of neutral rules together convince us that the Act does not create any such automatic exemption. The simple fact that an accommodation would provide a “preference”—in the sense that it would permit the worker with a disability to violate a rule that others must obey—cannot, in and of itself, automatically show that the accommodation is not “reasonable.” As a result, we reject the position taken by U.S. Airways and Justice SCALIA to the contrary.


Id.
at 1521. The Court’s discussion about the importance of seniority systems in assuring uniform and fair treatment of employees, rewarding their expectations and encouraging them to invest themselves in the company, can provide very persuasive reasons in support of claims for constructive seniority in a hiring or reinstatement case, and it seems to me that the thwarting of these expectations can be used to good effect in presenting a claim for compensatory damages.

The line-up on this decision was extremely interesting:
BREYER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O’CONNOR, and KENNEDY, JJ., joined. STEVENS, J., and O’CONNOR, J., filed concurring opinions. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. SOUTER, J., filed a dissenting opinion, in which GINSBURG, J., joined.

 

F. Americans with Disabilities Act, Title II, and § 504
of the Rehabilitation Act

 

Barnes v. Gorman, 536 U.S. 181, 122 S. Ct. 2097, 13 AD

Cases 193 (2002), involved the mishandling of a catheterized paraplegic arrestee, resulting in serious physical injuries and incapacity to work. He sued under Title II of the ADA and § 504 of the Rehabilitation Act of 1973. The Court held that both statutes were enacted pursuant to the power of Congress under the Spending Clause, and that remedies under these statutes should be analogized to contract actions, both as to implying the cause of action and implying the scope of a damages remedy. “But punitive damages, unlike compensatory damages and injunction, are generally not available for breach of contract, see 3 E. Farnsworth, Contracts § 12.8, 192-201 (2d ed.1998); Restatement (Second) of Contracts § 355 ; 1 T. Sedgwick, Measure of Damages § 370 (8th ed. 1891).” Id. at 2102.

G. The Family and Medical Leave Act

 

1. Ability to Use Vacation Leave to Become FMLA-
Qualified
Ruder v. Maine General Medical Center, 204 F.Supp.2d 16,

18–20, 7 WH Cases 2d 1441 (D. Me. 2002), held that an employee could use accrued vacation time to complete a year of service and thus become FMLA-eligible. The court distinguished Ragsdale.

2. Consequences of Rejecting FMLA LeaveSanders v. May Department Stores Co. , 315 F.3d 940,944,

8 WH Cases 2d 577 ( 8th Cir. 2003), affirmed the judgment on a jury verdict for the FMLA defendant. The court took the view of the facts favorable to the verdict. The plaintiff told her employer she wanted to resign but to take time off in advance for a medical condition, but did not request FMLA leave because she would have had to reveal she was undergoing sex-change surgery and she wanted to keep it confidential. The defendant suggested the possibility of FMLA leave to her, and she rejected it. The court held that the lower court did not abuse its discretion in denying her motion for judgment as a matter of law.

H. The Special Situation of Security Clearances

 

Hill v. White , 321 F.3d 1334, 1336, 91 FEP Cases 40

(11th Cir. 2003), affirmed the dismissal of the Title VII, Rehabilitation Act, and ADEA Complaint. Plaintiff alleged that his supervisor made false and frivolous charges against him, leading to a three-day suspension and the requirement that he submit to a mental examination. His security clearance was suspended. The court held that his claim was barred although he did not directly challenge the suspension of his security clearance. It explained:

The United States Supreme Court has made clear that
a decision concerning the issuance or non-issuance of security clearance is a matter within the purview of the executive and not to be second-guessed by the judiciary unless Congress has specifically provided otherwise. . . . To review the initial stages of a security clearance determination is to review the basis of the determination itself regardless of how the issue is characterized.

(Citation omitted.)

IV. Theories and Proof

A. Intentional Discrimination

 

Herrnreiter v. Chicago Housing Authority, 315 F.3d 742,

746–47, 90 FEP Cases 801 (7th Cir. 2002), affirmed the grant of summary judgment to the defendant. The court held that plaintiff’s theory—”that he was ‘set up’ by Odom to fail by being given tasks that he could not be expected to complete within the prescribed deadlines and then being fired when he failed to make them—”is a perfectly good theory of discrimination” except that the facts did not bear it out. Plaintiff’s assignments after his transfer to the audit division were all consistent with his experience and ability, and he had the support and flexibility he needed. The court held that it appeared he was simply “sulking” after his transfer back to the audit division.

B. The Inferential Model

 

1. The Standard for Prima Facie Cases in a RIFKinsella v. Rumsfeld , 320 F.3d 309, 14 AD Cases 4

(2nd Cir. 2003), reversed the grant of summary judgment to the Rehabilitation Act defendant on plaintiff’s termination claim, holding that plaintiff had shown enough for a reasonable jury to find that, although the RIF was bona fide, it was used as an opportunity to remove the plaintiff because of his disability.

Corti v. Storage Technology Corp. , 304 F.3d 336, 340 n.6,

89 FEP Cases 1477 (4th Cir. 2002), affirmed the judgment on a jury verdict for plaintiff, in the amount of $410,974.63 in back pay and prejudgment interest, and $100,000 in punitive damages. The court stated:

To establish a prima facie case for gender discrimination

in a reduction in force (RIF) context, a plaintiff must show that 1) she was protected under Title VII, 2) she was selected from a larger group of candidates, 3) she was performing at a level substantially equivalent to the lowest level of that in the group retained, and 4) the process of selection produced a residual work force that contained some unprotected persons who were performing at a level lower than that at which the plaintiff was performing.

The court rejected defendant’s argument that plaintiff was required to show that the RIF itself was pretextual, and held that plaintiff need only show that the reason for her selection for the RIF was pretextual. Id. at 340–41.

2. The Evidence to Examine on Summary Judgment
or JMOL

 

Sandstad v. CB Richard Ellis, Inc. , 309 F.3d 893, 898, 90

FEP Cases 248 ( 5th Cir. 2002), petition for cert. filed , 71 USLW 3522 (U.S., Jan. 27, 2003) (No. 02–1121), affirmed the grant of summary judgment to the defendant. The court stated:

Appellant contends that Reeves requires us to disregard as interested witness testimony all testimony by managers involved in the employment decision. We disagree with Appellant’s interpretation of Reeves, which would in effect eliminate his burden to show that Appellee’s explanation is pretextual. The burden on Appellee to produce a legitimate nondiscriminatory reason for terminating Appellant is “one of production, not persuasion; it can involve no credibility assessment.” . . . The definition of an interested witness cannot be so broad as to require us to disregard testimony from a company’s agents regarding the company’s reasons for discharging an employee. As the Seventh Circuit noted in Traylor v. Brown, et al., 295 F.3d 783 (7th Cir. 2002), to so hold would foreclose the possibility of summary judgment for employers, who almost invariably must rely on testimony of their agents to explain why the disputed action was taken.

(Citations and footnote omitted.)

Salitros v. Chrysler Corp. , 306 F.3d 562, 568–69, 13 AD

Cases 1057 (8th Cir. 2002), affirmed the judgment for the ADA retaliation plaintiff. Citing Reeves, the court stated:

In evaluating the sufficiency of the evidence, we must review all the evidence in the record, drawing all reasonable inferences in favor of the nonmoving party and disregarding evidence in favor of the moving party that the jury is not required to believe. . . . Put another way, we must accept all the evidence favoring Salitros, but only the evidence favoring Chrysler that is uncontradicted and unimpeached and that comes from disinterested witnesses.

(Citation omitted.)

3. Approaches to PretextTreglia v. Town of Manlius , 313 F.3d 713, 13 AD Cases

1537 ( 2d Cir. 2002), reversed the grant of summary judgment to the ADA retaliation defendant, holding that plaintiff had shown a triable issue of fact as to pretext. Plaintiff was a police officer with high evaluations and on track for promotions when he suffered epileptic seizures for the first time. He was thereafter considered a liability rather than an asset, and someone to be watched at all times. He was denied promotion although he achieved the highest score on the civil service promotional examination. Two lower-scoring officers were promoted. “When Treglia confronted Chief Carbery about the failure to promote him, the Chief allegedly responded that Treglia had always done a good job but that he would not receive a promotion to sergeant ‘now or ever’ and that now was a ‘good time for him to get out of the business.’” Id. at 717. After he filed his charge of discrimination, he was retaliated against in numerous ways, including being subjected to internal investigations and being denied another promotion. Id. at 717–18. The defendant contended that plaintiff was passed over for promotion because he had difficulty working with others. The court held that Chief Carbery’s glowing recommendations of the plaintiff for various positions and training, his promotion of plaintiff when they worked for a different employer, and his high evaluations, presented a triable issue of fact. Id. at 721–22. The court also relied on the Chief’s biased statements and on timing, both of which are discussed below.

Johnson v. The Kroger Co. , 319 F.3d 858, 866–67, 91FEP
Cases 145 (6th Cir. 2003), reversed the grant of summary judgment to the defendant. The court described the options available to a plaintiff seeking to show pretext:

 

A plaintiff can refute the legitimate, nondiscriminatory
reason articulated by an employer to justify an adverse employment action “by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.” . . . Regardless of which option is used, the plaintiff retains the ultimate burden of producing “sufficient evidence from which the jury could reasonably reject [the defendants’] explanation and infer that the defendants intentionally discriminated against him.” . . .

 

Johnson does not dispute that Noyes and other Kroger
employees working under her supervision documented instances of unsatisfactory conditions in the Wheelersburg store, even after he had been told about the problems. Thus, the first potential method of challenging an employer’s explanation—contesting its factual basis—is not available to Johnson.

 

In contrast, both the second and the third methods of
establishing that Kroger’s explanation was a pretext intended to hide illegal discrimination are relevant in the present case. A plaintiff using the second option “admits the factual basis underlying the employer’s proffered explanation and further admits that such conduct could motivate dismissal,” but “attempts to indict the credibility of his employer’s explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the defendant.” . . . The third possibility generally “consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff.” . . .

District Judge Rosen dissented.

Salitros v. Chrysler Corp. , 306 F.3d 562, 569, 13 AD Cases

1057 (8th Cir. 2002), affirmed the judgment for the ADA retaliation plaintiff and found that plaintiff had shown adequate evidence of pretext in the defendant’s explanation that it fired the plaintiff because he had provided effective notice, but not formally adequate notice, of a temporary absence from work:

There was also abundant evidence from which the jury
could have inferred that Chrysler’s reliance on inadequacy of the faxed notice was pretextual. First of all, Chrysler had actual notice before firing Salitros that he would be absent from work for medical reasons, since Salitros stopped by the warehouse office before leaving on January 23 and announced that he wouldn’t be in the next day and Chrysler admittedly received Dr. Dorn’s January 27 fax. Second, the contract with the union local was at best ambiguous about whether an employee had to call in personally, and the fax from Dr. Dorn arguably satisfied the contract requirements of telephonic notification. Third, Stone reported that at the grievance meeting, Chrysler’s manager Richard Haynes said he wouldn’t accept the fax notice, saying, “I want to teach Gerry a lesson.” The jury could infer that this expression of animus was more in keeping with retaliation than with dissatisfaction over the form of Salitros’s notice of absence. Finally, another employee testified that he had once had his wife call to report his absence, rather than telephoning personally, and he had not been disciplined for doing so. An employee can show pretext by showing that the employer meted out more lenient treatment to similarly situated employees who were not in the protected class or did not engage in protected activity.

Id. at 569–70 (citation omitted).

4. Need to Show an ApplicationKinsella v. Rumsfeld , 320 F.3d 309, 14 AD Cases 4 (2nd

Cir. 2003), affirmed the grant of summary judgment to the Rehabilitation Act defendant on plaintiff’s promotional claim, holding that plaintiff had not shown he applied for any specific positions, or that any non-disabled persons were selected for specific positions, and stating that it is not enough to state a general interest in promotions.

5. Same-Actor InferenceWexler v. White’s Furniture, 317 F.3d 564, 572–74, 90 FEP

Cases 1551 (6th Cir. 2003) (en banc), reversed the grant of summary judgment to the ADEA defendant. The court distinguished its prior case, Buhrmaster v. Overnite Transportation, 61 F.3d 461 (6th Cir. 1995), cert. denied, 516 U.S. 1078 (1996), and held that the same-actor inference is an item of evidence like any other and not entitled to dispositive weight. “We therefore reject the idea that a mandatory inference must be applied in favor of a summary-judgment movant whenever the claimant has been hired and fired by the same individual.” Id. at 573. The court held that a defendant’s invocation of the same-actor principle “is insufficient to warrant summary judgment for the defendant if the employee has otherwise raised a genuine issue of material fact.” Id. at 573–74. Judges Krupansky and Boggs dissented. Id. at 578–97.

6. “Business Judgment”Wexler v. White’s Furniture, 317 F.3d 564, 576–78, 90 FEP

Cases 1551 (6th Cir. 2003) (en banc), reversed the grant of summary judgment to the ADEA defendant. The court held that the lower court paid unwarranted deference to the defendant’s business judgment in blaming plaintiff for the store’s low sales. The court held: “A plaintiff can refute the legitimate, nondiscriminatory reason that an employer offers to justify an adverse employment action ‘by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.’” Id. at 576.

The district court therefore erred by invoking the
business judgment rule to exclude consideration of evidence relevant to the question of pretext. As a result, the district court ignored inferences in favor of Wexler that can be drawn from the evidence about whether it was reasonable to blame him for the Morse Road store’s declining sales. Wexler produced evidence indicating that White’s was aware that the decline in revenue was not his fault. He pointed to evidence showing that the management of White’s knew that the company’s advertising strategy had hurt sales throughout the chain, including a decrease in sales at the Morse Road store. If believed, a trier of fact could reasonably infer that the justification for Wexler’s demotion was insufficient to warrant the adverse decision.

Id. at 577. Judges Krupansky and Boggs dissented. Id. at 578–97.

C. Mixed Motives

 

Costa v. Desert Palace, Inc. , 299 F.3d 838, 89 FEP Cases

673 (9th Cir. 2002) (en banc), cert. granted, __ U.S. __, 123 S. Ct. 816 (U.S., Jan. 10, 2003) (No. 02–679), reversed the grant of summary judgment to the Title VII plaintiff, holding that the requirement of “direct evidence” in Justice O’Connor’s concurrence in Price Waterhouse was overturned by the Civil Rights Act of 1991, which requires simply that plaintiff show that the prohibited factor was “a motivating factor.” Judge Gould, joined by Judges Kozinski, Fernandez, and Kleinfeld, dissented. Id. at 865–67.

Hill v. Lockheed Martin Logistics Management, Inc., 314

F.3d 657, 665, 90 FEP Cases 1056 ( 4th Cir. 2003), vacated on grant of rehearing en banc (4th Cir. Feb. 12, 2003), reversed the grant of summary judgment to defendant and stated: “Derogatory remarks may constitute direct evidence of a discriminatory attitude in the workplace.” Statements that plaintiff was a “useless old lady” and a “damn woman” who needed to be retired were enough to show the speaker’s bias. The court said that “Fultz’s comments cannot be characterized as ambiguous or open to alternate interpretation,” and could not be construed as joking or ambiguous. It held that the biased remarks were sufficient to trigger mixed-motives analysis.

Wexler v. White’s Furniture, 317 F.3d 564, 571–72, 90 FEP

Cases 1551 (6th Cir. 2003) (en banc), reversed the grant of summary judgment to the ADEA defendant. The court held that mixed-motives analysis is proper: “Criticism of an employee’s performance, even if true, which is linked to stereotypes associated with a plaintiff’s membership in a protected class is therefore squarely within the rubric of a mixed-motive analysis. . . . The association of these stigmatizing beliefs with an adverse employment decision creates a genuine issue of material fact as to whether the employer was motivated, at least in part, by discriminatory intent based on those stereotypes.” (Citation omitted.) Judges Krupansky and Boggs dissented. Id. at 578–97.

EEOC v. Liberal R-II School District, 314 F.3d 920, 90 FEP

Cases 1032 ( 8th Cir. 2002), reversed the grant of summary judgment to the defendant, holding that there was direct evidence of discrimination. The EEOC brought suit when the defendant failed to renew the bus-driving contract of George Trout, who was then 70 years old. He had been hired at the age of 66. Superintendent Gretlein recommended renewal, but the Board refused, at a closed meeting at which Gretlein was present but did not participate. Charged with the responsibility of explaining Board actions to employees, Gretlein told Trout that the Board felt he was too old to continue as a driver. Both Gretlein and the Board members denied that age was discussed at the meeting, and Gretlein claimed that the contention was libelous. In his letter of opposition to Trout’s claim for unemployment benefits, however, Gretlein stated:

On behalf of the Liberal R-II School District, I wish to protest the payment of benefits to the above individual. Mr. George Trout had served as a bus driver for the district. The fact that Mr. Trout is now 70 1/2 years of age and that the public had voiced concerns about his driving safety, his continuation as a bus driver for the coming year was not approved by the Board of Education. The Board cited student safety as their reason for Mr. Trout’s noncontinuation as a bus driver.

Id. at 921 (emphasis added by the court). The court described “direct evidence” in a manner simpler than that used by some other Circuits:

The Supreme Court has defined direct evidence in the
negative by stating that it excludes “stray remarks in the workplace,” “statements by nondecisionmakers,” and “statements by decisionmakers unrelated to the decisional process itself.” . . . This circuit has stated that “direct evidence may include evidence of actions or remarks of the employer that reflect a discriminatory attitude.” . . . In addition, “[c]omments which demonstrate a ‘discriminatory animus in the decisional process’ … or those uttered by individuals closely involved in employment decisions may constitute direct evidence within the meaning of Price Waterhouse.” . . . As we recently stated, “[t]he direct evidence required to shift the burden of proof is evidence of conduct or statements by persons involved in making the employment decision directly manifesting a discriminatory attitude, of a sufficient quantum and gravity that would allow the factfinder to conclude that attitude more likely than not was a motivating factor in the employment decision.” . . . Finally, the EEOC “must present evidence showing a specific link between the discriminatory animus and the challenged decision.”

Id. at 923 (citations omitted). See the discussion of the “actual decisionmaker” below.

D. Actionable Discrimination

 

Vesprini v. Shaw Contact Flooring Services, Inc. , 315 F.3d

37, 41 n.4, 90 FEP Cases 1038 ( 1st Cir. 2002), affirmed the grant of summary judgment to the ADEA defendant. The 71-year-old plaintiff and his son sold their flooring business to another company and the plaintiff entered into a three-year contract to remain as President. After a reorganization, Mahan, a 41-year-old, was named as plaintiff’s supervisor. The court held that the plaintiff could not sue over his move to a small windowless office after a relocation, when he had failed to specify any office preferences when asked and never complained to the company, and could not sue over the failure to issue him business cards, a matter that he himself thought was inadvertent and about which he did not complain to the company.

Grayson v. City of Chicago , 317 F.3d 745, 750, 90 FEP

Cases 1663 (7th Cir. 2003), affirmed the grant of summary judgment to the defendant. The court rejected plaintiff’s contention of discriminatory denial of promotion to the position of Foreman of Carpenters, because that position was identical to plaintiff’s position in all but title. “This is not to say, however, that the loss of a title may not prove more significant in other discrimination contexts.” The court stated that, if the City treated the title as significant in making promotional decisions, the denial of the title could be an adverse employment action.

Herrnreiter v. Chicago Housing Authority, 315 F.3d 742,

744–45, 90 FEP Cases 801 (7th Cir. 2002), affirmed the grant of summary judgment to the defendant. The court held that plaintiff’s lateral transfer from the investigative division to the audit division was not actionable under Title VII notwithstanding the loss of a city car and other “perks,” and the plaintiff’s greater enjoyment of the investigative work. The court attempted to organize the principles under which employment actions are or are not actionable:

The cases that find the statutory criterion (however it
should be formulated) satisfied can be divided into three groups:

 

1. Cases in which the employee’s compensation,
fringe benefits, or other financial terms of employment are diminished, including, of course, as the limiting case, termination of employment. . . .

 

2. Cases in which a nominally lateral transfer with no
change in financial terms significantly reduces the employee’s career prospects by preventing him from using the skills in which he is trained and experienced, so that the skills are likely to atrophy and his career is likely to be stunted. . . . These cases differ from those in the first category only in involving a future rather than present harm; the harm nevertheless is financial. They are to be distinguished from cases involving “a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance. . . . [Such a transfer] cannot rise to the level of a materially adverse employment action. A transfer involving no reduction in pay and no more than a minor change in working conditions will not do, either.” . . .

 

2a. A variant of category 2 is where the employee’s job
is changed in a way that injures his career, just as in the cases in that category, except that there is no transfer. . . .

 

3. Cases in which the employee is not moved to a
different job or the skill requirements of his present job altered, but the conditions in which he works are changed in a way that subjects him to a humiliating, degrading, unsafe, unhealthful, or otherwise significantly negative alteration in his workplace environment–an alteration that can fairly be characterized as objectively creating a hardship, the classic case being that of the employee whose desk is moved into a closet. . . . This category includes cases of constructive discharge: the employer has made the job unbearable for the employee. . . . It also includes cases of harassment—mistreatment of an employee by coworkers or supervisors that is sufficiently severe to worsen substantially his conditions of employment as they would be perceived by a reasonable person in the position of the employee. . . . Categories 2, 2a, and 3 often overlap. . . .

 

What remains are cases of purely subjective
preference for one position over another—which is this case. An auditor’s job is not objectively inferior to an investigator’s job that has identical financial terms; nor is an accountant who is transferred from investigations to audits deprived of the opportunity to use the skills for which he is trained—the opposite is the case. The use of a company car and being excused from having to sign in or out of an office might be preferred by some employees, but not having to run around all day might be considered by others ample compensation for giving up those particular perks. The two jobs were equivalent other than in idiosyncratic terms that do not justify trundling out the heavy artillery of federal antidiscrimination law; “otherwise every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit. The Equal Employment Opportunity Commission, already staggering under an avalanche of filings too heavy for it to cope with, would be crushed, and serious complaints would be lost among the trivial.” . . .

See below for the court’s discussion of retaliation cases.

Traylor v. Brown, 295 F.3d 783, 788, 89 FEP Cases 1438

(7th Cir. 2002), affirmed the grant of summary judgment to defendant. The court stated:

We have defined an adverse employment action as “more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.” . . . Of course, “not everything that makes an employee unhappy” will suffice to meet the adverse action requirement.

(Citations omitted.)

Vasquez v. County of Los Angeles , 307 F.3d 884, 891, 89

FEPCases 1705 (9th Cir. 2002), affirmed the grant of summary judgment to the Title VII defendant on plaintiff’s disparate treatment claim, holding that the plaintiff failed to show an adverse employment action. The court held that, while a lateral transfer can be actionable, the test must be objective.

We agree that the proper inquiry is to view the action objectively to determine whether it was adverse. Otherwise, every minor employment action that an employee did not like could become the basis of a discrimination suit. The better approach is to determine whether a reasonable person in the same situation would view the action as disadvantageous. We therefore follow the Seventh, Tenth, Eleventh, and D.C. Circuits in holding that a purely subjective analysis is not appropriate when deciding whether an employment action was adverse.

The court held that plaintiff’s preference for working in a cottage was solely personal, that others preferred not to work in the cottage, and that his lateral transfer from the cottage was therefore not an adverse employment action. The court also held that the issuance of a warning letter was not an adverse employment action where it was not disseminated beyond plaintiff’s second-level supervisor, simply remained in the employee’s personnel folder for a year, and would not affect his chances of promotion. Id. at 891–92. Judge Ferguson dissented. Id. at 897–906.

E. Retaliation

 

1. Protected Conduct Treglia v. Town of Manlius , 313 F.3d 713, 719, 13

AD Cases1537 ( 2d Cir. 2002), reversed the grant of summary judgment to the ADA retaliation defendant, holding that plaintiff had shown a triable issue of fact as to pretext. Plaintiff did not appeal the dismissal of his discrimination claim. “A plaintiff may prevail on a claim for retaliation even when the underlying conduct complained of was not in fact unlawful ‘so long as he can establish that he possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated [the] law.’” (Citation omitted.) The court held that plaintiff’s internal complaints were protected activities. Id. at 720.

Fine v. Ryan International Airlines , 305 F.3d 746, 752, 89

FEPCases 1543 (7th Cir. 2002), affirmed the judgment on a jury verdict for the Title VII retaliation plaintiff. The court rejected defendant’s argument that, because the plaintiff’s discrimination claim did not survive summary judgment, she could not have had a good-faith belief her internal complaint was protected conduct. The court explained:

It is improper to retaliate against anyone for claiming a violation of Title VII unless that claim is “completely groundless.” . . . But a groundless claim is one resting on facts that no reasonable person possibly could have construed as a case of discrimination. Many claims might appear legitimate on the surface, but after discovery and a harder look at the full picture they turn out ultimately to lack merit. Under Title VII, a person may not be terminated for making such a grounded, yet unsuccessful, complaint.

(Citation omitted.) The court held that plaintiff justifiably relied on statements from her co-workers: “(In everyday life, it is quite reasonable for people to rely on what they learn from their co-workers; the Federal Rules of Evidence do not govern the workplace.)” Id.

2. What is the Right Standard for Actionable
Conduct?
Banks v. East Baton Rouge Parish School Bd. , 320 F.3d

570, 575–76, 91 FEP Cases 280 (5th Cir. 2003), stated in the context of retaliation claims: “An employment action that ‘does not affect job duties, compensation, or benefits’ is not an adverse employment action under Title VII.” (Citation omitted.) Plaintiffs were women employed in part-time seasonal Janitor I positions without medical benefits who had brought State-law sex discrimination claims in State court over the elimination of the medical benefits they had formerly enjoyed. They desired to be promoted to new full-time “Janitor” positions with medical benefits but lower hourly pay, but could not pass the reading test and could not remain in their former Janitor I positions if they failed the reading test. There was an exception under which they could become probationary Janitors while attending adult reading classes, re-take the reading test nine months later, and become regular Janitors if they passed but would lose their jobs if they failed. The court stated: “Regardless of whether the conditions placed on the new Janitor position were unfavorable to Employees seeking to be ‘promoted’ to it, the Board’s implementation of this new position, with its new salary structure and reading requirement, did not amount to an ultimate employment decision under Title VII” because it was not part of any “‘internal ordered scheme of promotion’” but was new. The court held that plaintiffs could have remained in their Janitor I positions at the same pay and hours, and had simply been given a “right of first refusal” for the new positions. “Thus, the Board’s implementation of the new Janitor position, for which Employees had a right of first refusal, did not constitute an ultimate employment decision because it did not affect Employees’ job duties, compensation, or level of benefits as Janitor I employees.” (Citation omitted.) The court held that the implementation of reading test was not an ultimate employment decision, because it was only a mediate employment action that could lead to termination for those failing the retest.

Herrnreiter v. Chicago Housing Authority, 315 F.3d 742,

745–46, 90 FEP Cases 801 (7th Cir. 2002), affirmed the grant of summary judgment to the defendant. The court attempted to organize the principles under which retaliation is or is not actionable (see above), and then expanded its discussion to retaliation cases:

Out of caution we note that some of the cases we have
cited because they contain good discussions of when an adverse employment action is actionable were actually cases involving retaliation. We do not mean to suggest by such citations that retaliation, to be actionable under Title VII (or other statutes), has to involve an adverse employment action. It does not. . . . EEOC Compliance Manual § 8, ¶ 8008 (1998) (directive No. 915.003); . . . . Some cases reach this conclusion by interpreting “adverse employment action” in the retaliation context as not requiring an actual employment action; an example is Berry v. Stevinson Chevrolet, 74 F.3d 980, 986-87 (10th Cir.1996) , where the retaliation took the form of preferring charges of theft and forgery against an employee who had filed a charge of discrimination. . . . As we explained in McDonnell v. Cisneros, 84 F.3d 256, 258–59 (7th Cir. 1996), “No limiting language appears in Title VII’s retaliation provision. 42 U.S.C. § 2000e-3(a) . The language of ‘materially adverse employment action’ that some courts employ in retaliation cases is a paraphrase of Title VII’s basic prohibition against employment discrimination, found in 42 U.S.C. §§ 2000e–2(a)(1) and (2). . . . The provision regarding retaliation may intentionally be broader, since it is obvious that effective retaliation against employment discrimination need not take the form of a job action.” We left open in that case the question whether retaliation in other forms was actionable under Title VII, remarking that “shooting a person for filing a complaint of discrimination would be an effective method of retaliation, though . . . the victim of the retaliation would have other, and more powerful, remedies than a suit under Title VII. This would be a reason for confining the provision to retaliation that takes the form of an adverse job action.” Id. at 259. The cases cited earlier in this paragraph have now resolved the issue by holding that the provision is not so confined.

 

But what if the retaliation does take the form of an
employment action: must that action be as severe as would be required if the action were charged as discrimination rather than as retaliation? The cases like Berry that define adverse employment action more broadly in the retaliation context implicitly answer “no,” though many cases state or more commonly assume that the answer is “yes.” . . . That may be a welcome simplification, but it can be criticized, especially in cases in which an employee is retaliated against for making or more commonly assisting a complaint on behalf of a coworker . . . as it presumably takes rather little to deter such altruistic action, which is nevertheless protected by the statute. We are not aware that any of the decisions that equate the standards for discrimination and retaliation involved a third-party complaint. This is not an issue to be resolved in this case, however, which does not involve retaliation, and we mention it only to emphasize that in citing retaliation cases for their discussion of what “materially adverse employment action” means we do not necessarily endorse the view that such an action is always required to make retaliation actionable under Title VII.

 

Coszalter v. City of Salem, 320 F.3d 968, 19 IER Cases

1114 (9th Cir. 2003), reversed the grant of summary judgment to the First Amendment retaliation defendants, holding that “an adverse employment action is an act that is reasonably likely to deter employees from engaging in constitutionally protected speech.”

Vasquez v. County of Los Angeles, 307 F.3d 884, 896, 89

FEP Cases 1705 (9th Cir. 2002), affirmed the grant of summary judgment to the Title VII defendant with respect to plaintiff’s claim of pre-charge retaliation, but held that a mixed objective and subjective standard applies to the determination of an actionable adverse employment action for purposes of retaliation. After discussion prior case law, the court stated: “We adopted the EEOC standard from its compliance manual and held that ‘an action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity.’” (Footnotes omitted.) Judge Ferguson dissented. Id. at 897–906.

3. Determinations of Actionable ConductMarrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 21–22, 89

FEP Cases 1361 (1st Cir. 2002), reversed the jury’s finding of retaliation, holding that plaintiff had not shown an adverse employment action. The court stated that not every action that displeases an employee is actionable, but that adverse employment actions may not affect compensation:

Congress recognized that job discrimination can take many forms, and does not always manifest itself in easily documentable sanctions such as salary cuts or demotions. Accordingly, Congress “cast the prohibitions of Title VII broadly” to encompass changes in working conditions that are somewhat more subtle, but equally adverse. . . . Consistent with that broad statutory mandate, courts have rejected any bright line rule that a transfer cannot qualify as an “adverse employment action” unless it results in a diminution in salary or a loss of benefits.

Id. at 23–24. While the plaintiff had to do some uncompensated extra work here, a minor increase in work responsibilities is not enough to render a lateral transfer materially adverse,” id. at 24, and the change may have been temporary. Plaintiff left the new position three days after she started it. “Given that short time span, she could not show that the increase in work was anything other than an unintended and temporary inconvenience caused by the transition.” Id. at 25. The court held that actions by plaintiff’s new supervisors that made her feel uncomfortable, and subjected to close supervision, were not enough to transform the transfer into an adverse employment action. It stated, however, that placing plaintiff into a new probationary period might have been an adverse employment action if it jeopardized her seniority and if that had been shown to be important, but there was no such evidence here. Id. at 25 n.5. The court rejected plaintiff’s claim of retaliatory harassment, saying that too little had happened in the three days between her having informed her employer of her EEOC charge and her resignation. Although the court rejected the retaliation claim, it held that the same events would allow a jury to find that plaintiff was constructively discharged. Id. at 28–29.

Hernandez v. Crawford Bldg. Material Co. , 321 F.3d 528, 91

FEP Cases 97 (5th Cir. 2003), held that the defendant’s filing of a counterclaim for theft against the plaintiff was not actionable retaliation under Title VII or the ADEA because it was not like ultimate employment actions such as “‘hiring, granting leave, discharging, promoting, and compensating.’” (Citation omitted.) Judge Dennis concurred, but urged en banc reconsideration of the “ultimate employment decision” test.

4. Informal DecisionmakersShellenberger v. Summit Bancorp, Inc. , 318 F.3d 183, 189 ,

13 AD Cases 1716 (3rd Cir. 2003), reversed the grant of summary judgment to the ADA retaliation defendant. The court held that the ADA’s anti-retaliation provision protects even the non-disabled from retaliation for opposing discrimination. The court held that the district court erred in refusing to consider evidence that a manager, Fungard, knew of the plaintiff’s EEOC charge although Fungard was assertedly not the decisionmaker. The court explained: “Furthermore, Fungard was present in Resetar’s office when Shellenberger was fired. As the Site Manager of the call center, her presence in Resetar’s office during a meeting Resetar called to fire Shellenberger presents circumstantial evidence that Fungard was involved in the decision to terminate Shellenberger.” Id. at 187 (footnote omitted).

Hill v. Lockheed Martin Logistics Management, Inc., 314

F.3d 657, 678, 90 FEP Cases 1056 (4th Cir. 2003), vacated on grant of rehearing en banc (Feb. 12, 2003), reversed the grant of summary judgment to the defendant, holding that “the innocence of its formal decisionmakers does not shield an employer from liability on discrimination claims if an actual decisionmaker (that is, someone with substantial influence on the employment decision) was motivated by illegal considerations. . . . For example, an employer is not shielded from liability on a retaliation claim when a formal decisionmaker with no retaliatory motive fires someone based on a poor evaluation by an actual decisionmaker who wrote the poor evaluation in retaliation for protected activity.” (Citation omitted.) The court held that the employee’s admission of the misconduct for which the employer’s action was taken does not always require the rejection of her retaliation claim:

Lockheed maintains that there is no genuine factual issue because Hill admits that she committed most of the errors noted in the discrepancy reports. However, the question is not whether Fultz could have written up Hill’s mistakes. The question is whether Hill creates a genuine issue as to whether Fultz would have written the reports absent a retaliatory animus. Lockheed inspectors do not automatically issue a discrepancy report for every error. On the contrary, inspectors have discretion on whether or not to write up minor mistakes.

Id. (emphasis in original).

5. Temporal Proximity as Evidence of CausationDressler v. Daniel , 315 F.3d 75, 79–80, 90 FEP Cases 1089

( 1st Cir. 2003), affirmed the grant of summary judgment to the Title VII retaliation defendant. The court held that plaintiff failed to show causation:

Since the initiation of the 1997 sexual harassment claim, the parties had a rather unusual relationship. Dressler claims that she and Daniel engaged in a sexual relationship extending for over one year after the sexual harassment claim had been settled. The adverse actions charged by Dressler occurred after this sexual/romantic relationship had ended. Two years had elapsed between the time Dressler engaged in the protected activity of initiating a sexual harassment complaint against Daniel and the time of the alleged adverse action, Daniel’s filing of the police complaints against Dressler. The district court found—and we agree—that no “reasonable trier of fact could conclude, by a preponderance of the evidence, that the 1999 complaints to the police were caused by the 1997 sexual harassment charge.”

 

Treglia v. Town of Manlius , 313 F.3d 713, 720–21, 13 AD

Cases 1537 ( 2d Cir. 2002), reversed the grant of summary judgment to the ADA retaliation defendant, holding that plaintiff had shown a triable issue of fact as to pretext. The court rejected defendant’s argument that causation could not be inferred from temporal proximity because plaintiff’s EEOC charge was filed a year before the actions of which he complains, holding that actions taken to pursue the charge were themselves protected activity and can independently lead to a finding of causation:

The Town argues that the first allegedly retaliatory action

after Treglia filed his administrative charges in April 1997 did not occur until almost a full year later in March 1998. That argument, however, ignores Treglia’s protected activity between those two dates. For example, Treglia asserts that in February 1998 the NYDHR requested that he submit a list of witnesses who could corroborate his charges of discrimination, after which he told several members of the department that they might be contacted as part of the NYDHR investigation. The temporal proximity between this protected activity in February 1998 and the allegedly adverse employment actions in March 1998 is sufficient to establish the required causal link for a prima facie case.

(Citation omitted.)

Shellenberger v. Summit Bancorp, Inc. , 318 F.3d 183, 189,

13 AD Cases 1716 (3rd Cir. 2003), reversed the grant of summary judgment to the ADA retaliation defendant. The court held that a reasonable jury could find causation based on temporal proximity: “The timing of Fungard’s comment (10 days before the firing) combined with Resetar’s comments during the September meeting, could very well lead a reasonable jury to conclude that Shellenberger was fired because she took the ‘legal route.’”

Salitros v. Chrysler Corp. , 306 F.3d 562, 569, 13 AD Cases

1057 (8th Cir. 2002), affirmed the judgment for the ADA retaliation plaintiff and found causation based in part on temporal proximity:

Next, Chrysler contends that there was no evidence the
reason Chrysler fired Salitros was because of his exercise of statutory rights and that there was unrebutted evidence that the real reason for the firing was the inadequacy of Salitros’s notice of absence. Salitros testified that when he was on the telephone with Mark Stone on January 31, he heard Robert Schulte speaking to Stone, and that Schulte said, “[T]hat son of a B . . . filed another EEOC charge.” Salitros’s testimony was corroborated by Stone, who said that Schulte walked into Stone’s office with an EEOC charge in his hand and made that statement. The jury could consider the use of this language in reporting the filing of the EEOC charge relevant to the motivation for firing Salitros the same day.

(Citations omitted.)

Coszalter v. City of Salem, 320 F.3d 968, 19 IER Cases

1114 (9th Cir. 2003), reversed the grant of summary judgment to the First Amendment retaliation defendants, holding that “when adverse employment actions are taken between three and eight months after the plaintiffs’ protected speech, a reasonable jury could infer that retaliation is a substantial or motivating factor.”

Vasquez v. County of Los Angeles , 307 F.3d 884, 896, 89

FEP Cases 1705 (9th Cir. 2002), affirmed the grant of summary judgment to the Title VII defendant with respect to plaintiff’s pre-charge retaliation claim, in part because of the lack of evidence of causation. The court held that a thirteen-month delay between the protected activity and the assertedly adverse action is not sufficiently close to allow an inference of causation. Judge Ferguson dissented. Id. at 897–906.

6. Slapping is Protected Self-Defense When Employer Leaves No AlternativeVan Horn v. Specialized Support Services, Inc., C.A. No.

4:01-cv-90550 (S.D. Iowa Jan. 29, 2003), held that the defendant, which had not protected the plaintiff against the sexual harassment of a mentally disabled client, unlawfully retaliated against her for slapping the client after he grabbed her breasts. The court stated that an employee’s self-defense is protected activity under Title VII when the employer’s failure to act leaves the employee with no other alternative.

F. Comparators

 

Miller-El v. Cockrell, __ U.S. __, 123 S. Ct. 1029, 154 L.Ed.

2d 931 (2003), reversed the Fifth Circuit’s denial of a certificate of appealability (“COA”) from the denial of habeas corpus that had been sought on a Batson challenge to the prosecutor’s striking of 10 of 11 African-American potential jurors. The standard was whether petitioner demonstrated “‘that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’” The Court cited Reeves. It relied in part on comparative evidence, buttressed by other evidence:

A comparative analysis of the venire members demonstrates that African-Americans were excluded from petitioner’s jury in a ratio significantly higher than Caucasians were. Of the 108 possible jurors reviewed by the prosecution and defense, 20 were African-American. Nine of them were excused for cause or by agreement of the parties. Of the 11 African-American jurors remaining, however, all but 1 were excluded by peremptory strikes exercised by the prosecutors. On this basis 91% of the eligible black jurors were removed by peremptory strikes. In contrast the prosecutors used their peremptory strikes against just 13% (4 out of 31) of the eligible nonblack prospective jurors qualified to serve on petitioner’s jury.

 

These numbers, while relevant, are not petitioner’s
whole case. During voir dire, the prosecution questioned venire members as to their views concerning the death penalty and their willingness to serve on a capital case. Responses that disclosed reluctance or hesitation to impose capital punishment were cited as a justification for striking a potential juror for cause or by peremptory challenge. . . . The evidence suggests, however, that the manner in which members of the venire were questioned varied by race. To the extent a divergence in responses can be attributed to the racially disparate mode of examination, it is relevant to our inquiry.

 

Most African-Americans (53%, or 8 out of 15) were
first given a detailed description of the mechanics of an execution in Texas:

 

“[I]f those three [sentencing] questions are
answered yes, at some point[,] Thomas Joe Miller-El will be taken to Huntsville, Texas. He will be placed on death row and at some time will be taken to the death house where he will be strapped on a gurney, an IV put into his arm and he will be injected with a substance that will cause his death … as the result of the verdict in this case if those three questions are answered yes.” App. 215.

 

Only then were these African-American venire members asked whether they could render a decision leading to a sentence of death. Very few prospective white jurors (6%, or 3 out of 49) were given this preface prior to being asked for their views on capital punishment. Rather, all but three were questioned in vague terms: “Would you share with us … your personal feelings, if you could, in your own words how you do feel about the death penalty and capital punishment and secondly, do you feel you could serve on this type of a jury and actually render a decision that would result in the death of the Defendant in this case based on the evidence? ” Id., at 506.

 

Corti v. Storage Technology Corp. , 304 F.3d 336, 338–39,

89 FEP Cases 1477 (4th Cir. 2002), affirmed the judgment on a jury verdict for plaintiff, in the amount of $410,974.63 in back pay and prejudgment interest, and $100,000 in punitive damages. The court relied in part on evidence that the plaintiff was a top-ranked Financial Services Manager but was nevertheless selected for demotion in the RIF, and ultimate termination, while males who had never even met their quotas without special relief were retained.

Grayson v. City of Chicago , 317 F.3d 745, 749, 90 FEP

Cases 1663 (7th Cir. 2003), affirmed the grant of summary judgment to the defendant. The court rejected plaintiff’s comparators as to promotions, because they were already serving in an acting capacity in the positions in question at the time they were promoted, and he had not. The court did not discuss any claim of discrimination in selection for acting positions.

Juarez v. ACS Government Solutions Group, Inc., 314 F.3d

1243, 90 FEP Cases 1104 (10th Cir. 2003), affirmed the judgment for the plaintiff in the amounts of $22,500 in back pay and $250,000 in punitive damages for racial and national origin discrimination in a RIF. The court relied in part on comparative evidence: “Appellee presented evidence that ACS had retained non-Hispanic computer operators with less experience and tenure than Appellee and who had lower recent performance evaluations.” Id. at 1245. “Appellee introduced evidence that ACS retained two computer operators that were frequently tardy or absent and one that slept on the job. Appellee also introduced evidence that a retained computer operator was drinking on the job.” Id. at 1246.

G. Statistics

 

Miller-El v. Cockrell, __ U.S. __, 123 S. Ct. 1029, 154 L.Ed.

2d 931 (2003), reversed the Fifth Circuit’s denial of a certificate of appealability (“COA”) from denial of habeas corpus on a Batson challenge to the prosecutor’s striking of 10 of 11 African-American potential jurors. The standard was whether petitioner demonstrated “‘that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’” The Court cited Reeves. It relied in part on simple statistics, buttressed by other evidence:

A comparative analysis of the venire members
demonstrates that African-Americans were excluded from petitioner’s jury in a ratio significantly higher than Caucasians were. Of the 108 possible jurors reviewed by the prosecution and defense, 20 were African-American. Nine of them were excused for cause or by agreement of the parties. Of the 11 African-American jurors remaining, however, all but 1 were excluded by peremptory strikes exercised by the prosecutors. On this basis 91% of the eligible black jurors were removed by peremptory strikes. In contrast the prosecutors used their peremptory strikes against just 13% (4 out of 31) of the eligible nonblack prospective jurors qualified to serve on petitioner’s jury.

The court again relied on simple statistics later in its decision:

There was an even more pronounced difference, on
the apparent basis of race, in the manner the prosecutors questioned members of the venire about their willingness to impose the minimum sentence for murder. Under Texas law at the time of petitioner’s trial, an unwillingness to do so warranted removal for cause. . . . This strategy normally is used by the defense to weed out pro-state members of the venire, but, ironically, the prosecution employed it here. The prosecutors first identified the statutory minimum sentence of five years’ imprisonment to 34 out of 36 (94%) white venire members, and only then asked: “If you hear a case, to your way of thinking [that] calls for and warrants and justifies five years, you’ll give it?” App. 509. In contrast, only 1 out of 8 (12.5%) African-American prospective jurors were informed of the statutory minimum before being asked what minimum sentence they would impose.

 

H. Discriminatory Statements

 

1. Statements by DecisionmakersTreglia v. Town of Manlius , 313 F.3d 713, 13 AD Cases

1537 ( 2d Cir. 2002), reversed the grant of summary judgment to the ADA retaliation defendant, holding that plaintiff had shown a triable issue of fact as to pretext. Plaintiff was a police officer with high evaluations and on track for promotions when he suffered epileptic seizures for the first time. He was denied promotion although he achieved the highest score on the civil service promotional examination, and two lower-scoring officers were promoted. “When Treglia confronted Chief Carbery about the failure to promote him, the Chief allegedly responded that Treglia had always done a good job but that he would not receive a promotion to sergeant ‘now or ever’ and that now was a ‘good time for him to get out of the business.’” Id. at 717. After he filed his charge of discrimination, he was retaliated against in numerous ways, including being subjected to internal investigations and being denied another promotion. Id. at 717–18. The court relied on this remark, even though it occurred before the filing of the EEOC charge, because plaintiff’s internal complaint was itself a protected activity. Id. at 720. “Similarly, Treglia claims that when the Chief heard about Treglia’s discrimination charges the Chief told PBA President Mark Buzzard that ‘if [Treglia] wants to play hard ball, we can swing the bat back and play hard ball too.’” Id. at 721–22. The court held that this statement was relevant even if made in the context of settling a grievance relating to plaintiff, because “it could still be evidence of retaliatory intent given Treglia’s claim that the manner in which the discipline was brought and settled was itself retaliatory.” Id. at 722.

Corti v. Storage Technology Corp. , 304 F.3d 336, 338–89,

89 FEP Cases 1477 (4th Cir. 2002), affirmed the judgment on a jury verdict for plaintiff, in the amount of $410,974.63 in back pay and prejudgment interest, and $100,000 in punitive damages. The court relied in part on evidence that one of the decisionmakers selecting her for demotion in a RIF and ultimate termination—although on the same level as plaintiff—did not work well with women, did not tell plaintiff about important meetings, told her he was not used to having women as equals, and when part of the team went to play golf, told plaintiff and another female employee “that they should go shopping because golf was a ‘guy thing.’”

Wexler v. White’s Furniture, 317 F.3d 564, 570–71, 90

FEP Cases 1551 (6th Cir. 2003) (en banc), reversed the grant of summary judgment to the ADEA defendant. The court held that the following statements reflected the kinds of age stereotypes that Congress enacted the ADEA to stop, and could reasonably be taken as reflecting age bias:

(1) Schiffman’s comment, during the meeting in
which Wexler was demoted, “that you’re 60 years old, aren’t you, Don? . . . [W]ell, we both have been in the business 117 years. You don’t need the aggravation, stress of management problems, customer problems, taking care of all these salespeople’s problems that keep calling you on the phone all day every day.”
(2) Lively’s statement, at that same meeting, that
White’s was “going to really be grinding their managers in the future,” making them do tasks that he did not think Wexler would want to be doing.
(3) Schiffman’s comment during a telephone
conversation with Wexler on June 16, 1997, when he said that he would explain to the other employees why Wexler would no longer be the manager by mentioning “that you’re getting older, although not as old as I am.”
(4) Schiffman’s statement during his
announcement of the demotion that Wexler had come to him and said: “I’ve been in my [sic] management for a bunch of years, and I’m not sure what I want to do. Maybe I should just be worrying about my own customer[s] and not everyone else’s customers. This is getting to be tiring.”
(5) Schiffman’s repeated references, during the same
speech, to the youth of Wexler’s replacement.
(6) Numerous prior references that Lively made
about Wexler’s age, including comments such as “a bearded, grumpy old man,” “pops,” and “old man.”

The court relied on these statements in conjunction with other evidence of age discrimination. Judges Krupansky and Boggs dissented. Id. at 578–97.

2. Speakers Who Affected, But Did Not Make, the DecisionHill v. Lockheed Martin Logistics Management, Inc.,

314 F.3d 657, 665, 90 FEP Cases 1056 ( 4th Cir. 2003), vacated on grant of rehearing en banc (4th Cir. Feb. 12, 2003), reversed summary judgment to defendant, saying it was error to hold that only the remarks of officials with decisionmaking authority were probative of discrimination. It stated:

We reject this approach because by limiting direct evidence of discrimination to the statements and actions of formal decisionmakers, it overlooks discrimination by subordinates who are actual decisionmakers, that is, subordinates who lack formal authority but who nevertheless exercise substantial influence in employment decisions.

Id. at 666 (emphasis in original). The court held that the biased remarks were sufficient to trigger mixed-motives analysis, and explained why its ruling was essential to the enforcement of Title VII:

In deciding whether a subordinate is a decisionmaker in a Price Waterhouse mixed-motive case, the focus must be on the subordinate’s actual influence rather than his formal role in the adverse employment decision. The reason for this is simple: if a biased subordinate has substantial influence over the employment decision, the subordinate’s bias can bear directly on the decision. If we refused to recognize this, it would mean that the statement, “I’m going to get you fired because you are old and female,” made by a subordinate who was an actual (but not a formal) decisionmaker could not count as direct evidence of discrimination. That cannot be right, for if it was, a wily employer could prevent a plaintiff from ever taking advantage of the Price Waterhouse framework. The employer could create a position of manager in charge of firing, and that manager could make formal firing decisions based solely on the recommendations of subordinates with no official authority. Because the manager would not conduct independent investigations, the subordinate would be making the actual firing decisions. Yet the employer would not be subject to the plaintiff-friendly standard of Price Waterhouse even if the subordinate clearly recommended a discharge based on his expressed bias toward the targeted employee. It should not be so easy to eliminate the Price Waterhouse option for proving violations of Title VII and the ADEA.

Id. The court held that the speaker must have had a “substantial” influence over the decision, but need not have had a “principal” role. Id. at 671.

Johnson v. The Kroger Co. , 319 F.3d 858, 91 FEP Cases

145 (6th Cir. 2003), reversed the grant of summary judgment to the defendant. The court relied in part on racially-biased statements made by Newman, a store official who did not have formal responsibility for making the decision to remove plaintiff from his job, and stated: “Although remarks made by an individual who has no authority over the challenged employment action are not indicative of discriminatory intent, the statements of managerial-level employees who have the ability to influence a personnel decision are relevant.” Id. at 868 (citation omitted). The court explained:

Newman not only supervised Johnson on a daily basis, but also spoke with Noyes about the problems she identified during her store visits in late 1995, assisted Noyes in preparing Johnson’s performance review in January of 1996, and consulted with Noyes prior to her ultimate decision to offer Johnson a new but diminished position. Based upon these facts, we conclude that a jury could reasonably find that Newman played a significant role in Noyes’s decisionmaking process.

Id. District Judge Rosen dissented. Id. at 869–78.

Juarez v. ACS Government Solutions Group, Inc., 314 F.

3d 1243, 90 FEP Cases 1104 (10th Cir. 2003), affirmed the judgment for the plaintiff in the amounts of $22,500 in back pay and $250,000 in punitive damages for racial and national origin discrimination in a RIF. The court relied in part on evidence of biased statements: “Appellee further presented evidence that Mr. Nesmith, ACS’s Site Manager in charge of both operations and human resources at the facility where Appellee worked, had made derogatory remarks about Mexican employees shortly before the RIF. Although ACS argues that Mr. Nesmith had no role in the selection of Appellee for termination, Appellee presented sufficient evidence allowing the jury to reasonably infer that Mr. Nesmith actually did participate in the termination decision.” Id. at 1246.

3. Other Manager Speakers Who Were Not
Decisionmakers
EEOC v. Liberal R-II School District, 314 F.3d 920, 924,

90 FEP Cases 1032 ( 8th Cir. 2002), reversed the grant of summary judgment to the defendant, holding that there was direct evidence of discrimination. The age-biased statements of Superintendent Gretlein, describing the bases on which the Board had decided not to renew plaintiff’s contract as a bus driver, are described above. The court rejected the defendant’s objection that Gretlein was not the decisionmaker: “We stress this is not a case involving a nondecisionmaker who was not involved in the decisionmaking process and who made stray age-related remarks. Instead, this case involves a nondecisionmaker who was closely involved in the decisionmaking process and who was directed to express the decision of the decisionmakers to the employee and to the Missouri Division of Employment Security.”

4. Temporal Remoteness of the Biased RemarksMiller-El v. Cockrell, __ U.S. __, 123 S. Ct. 1029, 154 L.Ed.

2d 931 (2003), reversed the Fifth Circuit’s denial of a certificate of appealability (“COA”) from the denial of habeas corpus that had been sought on a Batson challenge to the prosecutor’s striking of 10 of 11 African-American potential jurors. The standard was whether petitioner demonstrated “‘that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’” The Court cited Reeves. It held that a 1968 racially biased statement contained in an official manual was probative of racial bias in the 1986 peremptory challenges:

Of more importance, the defense presented evidence
that the District Attorney’s Office had adopted a formal policy to exclude minorities from jury service. A 1963 circular by the District Attorney’s Office instructed its prosecutors to exercise peremptory strikes against minorities: “‘Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.’” App. 710. A manual entitled “Jury Selection in a Criminal Case” was distributed to prosecutors. It contained an article authored by a former prosecutor (and later a judge) under the direction of his superiors in the District Attorney’s Office, outlining the reasoning for excluding minorities from jury service. Although the manual was written in 1968, it remained in circulation until 1976, if not later, and was available at least to one of the prosecutors in Miller-El’s trial. Id., at 749, 774, 783.

The court also relied on other old evidence of biased statements:

A Dallas County district judge testified that, when he had served in the District Attorney’s Office from the late-1950’s to early-1960’s, his superior warned him that he would be fired if he permitted any African-Americans to serve on a jury. Similarly, another Dallas County district judge and former assistant district attorney from 1976 to 1978 testified that he believed the office had a systematic policy of excluding African-Americans from juries.

 

Vesprini v. Shaw Contact Flooring Services, Inc. , 315 F.3d

37, 90 FEP Cases 1038 ( 1st Cir. 2002), affirmed the grant of summary judgment to the ADEA defendant. The 71-year-old plaintiff and his son sold their flooring business to another company and the plaintiff entered into a three-year contract to remain as President. After a reorganization, Mahan, a 41-year-old, was named as plaintiff’s supervisor. The court described the allegedly biased remarks: “Vesprini’s immediate supervisor, Jay Houston, advised Vesprini that he was ‘not going to be [with Shaw] much longer,’ that the time had come to ‘step back and let the young stallions run the [day-to- day] business,’ but that Vesprini nevertheless would serve as Circle Floors’ ‘chief executive officer’ and as a ‘mentor’ to both Mahan and Vesprini’s son, Michael.” Id. at 39. The court held that the long time between the remarks and the barring of plaintiff from the premises after his outburst of profanity—from one and a half to two years—”severely undermines the reasonableness of any inference that there existed a causal relationship between the remarks and the subsequent decisionmaking by Shaw.” Id. at 41–42 (citation omitted). Moreover, the court held, the remarks were susceptible to a benign interpretation and were not intended to humiliate the plaintiff. They were uttered as a “truism.” Id. at 42.

5. Contentions that Biased Remarks Were Isolated Johnson v. The Kroger Co. , 319 F.3d 858, 868, 91 FEP

Cases 145 (6th Cir. 2003), reversed the grant of summary judgment to the defendant. The court relied in part on racially-biased statements made by Newman, a store official, rejecting Kroger’s contention that these remarks were not probative because they were isolated. “But Newman’s comment does not stand alone. Instead, the manner in which several employees observed him behave towards Johnson—behavior that was claimed to be distinct from his interaction with Caucasian comanagers—reinforces the possibility that Newman’s comment might have reflected racial animus.” (Citation omitted.) District Judge Rosen dissented.

6. The Relevance of Biased Remarks by Co-WorkersJohnson v. The Kroger Co. , 319 F.3d 858, 868–69, 91 FEP

Cases 145 (6th Cir. 2003), reversed the grant of summary judgment to the defendant. The court relied in part on racially-biased statements made by Newman, a store official, rejecting Kroger’s contention that these remarks were not probative because they were isolated. The court stated: “Newman’s statement must also be viewed in connection with the evidence concerning racial jokes and slurs prior to Johnson’s arrival at the Wheelersburg store. Kroger emphasizes that Newman did not listen to racial jokes, but instead told the department heads not to tell them, and that he never heard the racial slurs that other employees reportedly heard. A reasonable juror, however, could infer that Newman’s awareness of racial jokes prior to Johnson’s arrival at the store indicates that he harbored racially discriminatory views.” District Judge Rosen dissented.

Bowen v. Missouri Department of Social Services, 311 F.3d

878, 884, 90 FEP Cases 782 (8th Cir. 2002), reversed the grant of summary judgment to the white plaintiff complaining of racial harassment by her African-American supervisor, Francine Lee. Bowen alleged that Lee twice called her a white bitch, and made menacing gestures towards her. The lower court found insufficient evidence that Lee’s conduct was racially motivated. Reversing, the court of appeals stated:

The DSS argues, and the magistrate judge found, the
evidence established nothing more than Lee had an extreme, intense dislike for Bowen unrelated to her race. We do not agree. Viewing, as we must, the evidence in the light most favorable to Bowen, we conclude she produced sufficient evidence from which reasonable jurors could infer that Lee’s conduct toward Bowen was based on race. Lee’s two “white bitch” epithets were explicitly racial and were directed specifically to Bowen, a white woman. Because the epithets carried clear racial overtones, they permit an inference that racial animus motivated not only her overtly discriminatory conduct but all of her offensive conduct towards Bowen.

(Citations omitted.)

I. Constructive Discharge

 

Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 28–29,

89 FEP Cases 1361 (1st Cir. 2002), reversed the jury’s finding of retaliation, holding that plaintiff had not shown an adverse employment action, but affirmed its finding of constructive discharge based upon the same facts. The facts on which the court placed strongest emphasis were the defendant’s failure to take action on plaintiff’s repeated complaints, and its transfer of her to a work condition where she remained subject to her harasser’s jeers.

J. Harassment

 

1. What is Actionable Conduct?

 

a. National R.R. Passenger Corp. v. Morgan

 

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

122 S. Ct. 2061, 2074, 88 FEP Cases 1601 (2002), rejected the doctrine of continuing violations under Title VII for discrete actions, but upheld the doctrine for hostile-environment cases, subject to a laches defense of uncertain scope. The Court quoted Harris, stating: “In determining whether an actionable hostile work environment claim exists, we look to ‘all the circumstances,’ including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’”

b. Failure to Conduct a Reasonable
Investigation

 

Hatley v. Hilton Hotels Corp. , 308 F.3d 473, 475–76, 89

FEP Cases 1861 (5th Cir. 2002), reversed the grant of judgment as a matter of law on plaintiffs’ Title VII sexual harassment claims. The court relied in part on the defendant’s inadequate investigation and failure to provide relief on earlier complaints.

In addition, the plaintiffs presented sufficient evidence
to support the jury’s finding that Bally’s had not made out the Ellerth affirmative defense. . . . . Both plaintiffs testified that after they made formal complaints about the harassment, Bally’s failed to effectively separate them from the harassing supervisors, and the harassment continued until their departure. James Bostain, a beverage supervisor at Bally’s, testified that previous sexual harassment complaints had “fallen through the cracks” when submitted to Davidson. And four other cocktail waitresses testified about their own earlier complaints to Davidson of sexual harassment, particularly with regard to Stotts’ and Perkins’ behavior, and the failure of Bally’s to respond to such complaints. Such evidence supports the jury’s finding that the investigation was inadequate and that Bally’s did not take reasonable measures to correct or prevent the harassment. While Bally’s presented evidence to the contrary, the jury was free to choose between the conflicting versions of events. . . . The district court could not substitute its own determination of the witnesses’ credibility for that of the jury; in doing so, it erred.

(Citations and footnote omitted.) The court held that the testimony of other employees was relevant to show that defendant had been placed on notice that Stotts and Perkins might be harassing women. Id. at 476 n.1.

Flanagan v. Ashcroft , 316 F.3d 728, 90 FEP Cases 1416

(7th Cir. 2003), affirmed the grant of summary judgment to the defendants, holding that an investigations into allegations of sexual harassment, and the subsequent disciplinary actions against plaintiffs, are not actionable sexual harassment.

c. Not Minor Events or Separately
Actionable Events

 

Felton v. Polles, 315 F.3d 470, 485, 90 FEP Cases 812

(5th Cir. 2002), reversed the denial of qualified immunity and held in part that the plaintiff’s allegations did not rise to the level of actionable racial harassment. They involved the denial of leave during turkey hunting season, internal investigations, denial of a promotion, and an “ unsatisfactory performance evaluation, resulting in Carter’s being placed on a performance improvement plan and missing approximately one month of an annual wage increase (loss of approximately $25).” (Emphasis in original.)

Vasquez v. County of Los Angeles , 307 F.3d 884, 893,

89 FEP Cases 1705 (9th Cir. 2002), affirmed the grant of summary judgment to the Title VII defendant on plaintiff’s racial harassment claim. The court held that a reference to plaintiff as having “‘a typical Hispanic macho attitude’” and that he should consider transferring to the field because “‘Hispanics do good in the field,’” being yelled at twice, and having negative evaluations twice in the space of a year, did not rise to the level of a hostile environment. Judge Ferguson dissented. Id. at 897–906.

d. Severity or Pervasiveness

 

Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 19, 89

FEP Cases 1361 (1st Cir. 2002), affirmed the jury’s finding of Title VII liability for sexual harassment. The court described the operative facts as to the conduct of Ramón Cárdenas, the Vice President for sales:

Here, the jury reasonably could have found that
Marrero was subjected to harassment on a daily basis, including humiliating sexual remarks and innuendos. For example, Cárdenas constantly referred to Marrero as “the redhead” and frequently made comments such as “the redhead is really hot,” “the redhead is on fire,” or “if this is what hell is like then the devil can take me with him.” Cárdenas also made repeated comments about Marrero’s lips, legs, and clothing. He even used Marrero’s hypoglycemia as an avenue for innuendo: making a reference to his diabetes, Cárdenas told her “what goes down in you goes up in me,” and asked her “are you sweet to men?” At other times, Cárdenas was more explicit: he once asked Marrero “what are you going to do with the thing you have between your legs?” Finally, the jury could have found that Cárdenas’s “Halloween presents” comment was a sexual invitation, coupled with a threat that Marrero would be fired if she did not accept.

Plaintiff suffered depression and mental breakdowns, obtained psychiatric care, and was off work for extended periods while recuperating. The court held that the combination of the above incidents allowed a reasonable jury to find harassment, and emphasized that this was not a case of isolated remarks spread out over time: “ It bears emphasis that the harassment here was more or less constant from Marrero’s first day of work in April of 1995 until she left in November of 1996.” Id. Unlike isolated teasing situations, this case involved “the constant attentions of a lascivious supervisor.” Id. It included numerous incidents of unwanted touchings, and comments to others about plaintiff’s appearance, including one occasion in which Cárdenas asked a male employee to speculate on the type of underwear plaintiff had on. Id. at 19–20. The court held that a reasonable jury could find her work was affected, because of the drop in her performance evaluations from “excellent” to “regular.” Id. at 20.

Hatley v. Hilton Hotels Corp. , 308 F.3d 473, 475, 89 FEP

Cases 1861 (5th Cir. 2002), reversed the grant of judgment as a matter of law on plaintiffs’ Title VII sexual harassment claims. The court held that consistent evidence of “repeated inappropriate touching, vulgar comments, propositioning, and physical aggression by Jesse Stotts (‘Stotts’), their supervisor, and Charles Perkins (‘Perkins’), the Director of Food and Beverages,” was sufficient for a jury to find a hostile environment.

Quantock v. Shared Marketing Services, Inc., 312 F.3d 899,

90 FEP Cases 883 ( 7th Cir. 2002), reversed the grant of summary judgment to the Title VII sexual harassment defendant. The court held that three sexual propositions by the company President (one request for oral sex, one for a threesome, and one for phone sex), during the same meeting, id. at 902, were sufficiently severe to be actionable even though they were not pervasive. Id. at 904. The court relied on the fact that the case involved rapid-fire requests for sexual activity during a short time period, made directly to the plaintiff by a high-level official with whom she was forced to work closely. Id. The court rejected the lower court’s view that harassing conduct must be both severe and pervasive, and held that either will do. Id. at 904 n.2. The court also held that plaintiff’s internal complaint, seeking out of psychiatric care, and testimony that she felt humiliated, adequately showed that she considered the conduct severe. Id.

Bowen v. Missouri Department of Social Services, 311 F.3d

878, 884, 90 FEP Cases 782 (8th Cir. 2002), reversed the grant of summary judgment to the white plaintiff complaining of racial harassment by her African-American supervisor, Francine Lee. Bowen alleged that Lee twice called her a white bitch, and made menacing gestures towards her, among other actions. The lower court held that, because the incidents spanned a period of only 18 months, plaintiff failed to show they were pervasive. The court of appeals rejected this conclusion, and held that plaintiff was required only to show that the incidents were either severe or pervasive. The court explained:

The frequency of the discriminatory conduct, discussed by the magistrate, is only one of several factors to be considered. Other factors include the severity of the discriminatory conduct; whether the offensive conduct was physically threatening or humiliating, as opposed to a mere offensive utterance; and whether the offensive conduct unreasonably interfered with the employee’s work performance. . . . Finally, a court should consider the effect of the misconduct on the victim’s psychological well-being in determining whether the victim subjectively perceived the environment to be hostile or abusive. . . . “[N]o single factor is required.”

Id. at 884–85 (citations omitted.) The court then applied these standards to the case at bar:

Our independent review of the evidentiary record leads
us to conclude Bowen produced sufficient evidence to demonstrate the cumulative effect of Lee’s discriminatory conduct towards her was sufficiently severe to defeat summary judgment. While Lee’s discriminatory conduct towards Bowen was not frequent, neither was it infrequent. Reasonable jurors could find that Lee’s hostility towards Bowen pervaded the work environment, commencing in July 1997 with Lee’s “white bitch” epithet and menacing remarks, continuing with Lee’s frequent hostile stares, intensifying in January 1999 with Lee’s violent act of destroying Bowen’s cake, escalating on January 21, 1999, when Lee called Bowen a “menopausal white bitch” and threatened her with a physical beating, and climaxing when Lee intimidated Bowen by running directly at her. Bowen’s co- workers had warned Bowen that Lee did not like white people and that Lee had threatened to shoot fellow employees. Lee’s serious misconduct and Bowen’s subjective fear of bodily harm adequately demonstrate, for summary judgment purposes, that Lee’s conduct was both objectively and subjectively hostile or abusive.

Id. at 885.

Duncan v. General Motors Corp., 300 F.3d 928, 934–35,

89 FEP Cases 1105 (8th Cir. 2002), petition for cert. filed, (U.S., Feb. 13, 2003) (No. 02–1201), reversed the denial of judgment as a matter of law to the defendant. The court held that the boorish behavior was not sufficiently severe or pervasive to constitute actionable harassment.

Booth’s actions were boorish, chauvinistic, and
decidedly immature, but we cannot say they created an objectively hostile work environment permeated with sexual harassment. Construing the evidence in the light most favorable to Duncan, she presented evidence of four categories of harassing conduct based on her sex: a single request for a relationship, which was not repeated when she rebuffed it, four or five isolated incidents of Booth briefly touching her hand, a request to draw a planter, and teasing in the form of a poster and beliefs for an imaginary club. It is apparent that these incidents made Duncan uncomfortable, but they do not meet the standard necessary for actionable sexual harassment.

Id. at 935. Judge Richard Arnold dissented. Id. at 936–38.

e. Yes, if Neutral in Form But Motivated by a
Prohibited Motive

 

Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 20, 89 FEP

Cases 1361 (1st Cir. 2002), affirmed the jury’s finding of Title VII liability for sexual harassment. Plaintiff proved substantial sexually-explicit conduct. In addition., the court described the operative facts as to harassment that was nonsexual in form:

On other occasions, Cárdenas harassed Marrero in
ways that were not explicitly sexual. Using his power as her supervisor, he altered her work hours knowing that it would exacerbate her hypoglycemia. He often stood at her desk and stared angrily at her, and when she did not pay attention to him he would pound her desk with his fist to startle her. He criticized her work unfairly, sometimes embarrassing her by yelling at her in front of her co- workers. Our cases make clear that, “where a plaintiff endures harassing conduct, although not explicitly sexual in nature, which undermines her ability to succeed at her job, those acts should be considered along with overtly sexually abusive conduct in assessing a hostile work environment claim.”

(Citation omitted.)

Duncan v. General Motors Corp., 300 F.3d 928, 933–34,

89 FEP Cases 1105 (8th Cir. 2002), petition for cert. filed, (U.S., Feb. 13, 2003) (No. 02–1201), reversed the denial of judgment as a matter of law to the defendant. The court held that the behavior of the male alleged harasser to the female plaintiff was sexual in nature although half of the incidents were not sexual in nature, and although some boorish behavior was directed at men.

f. Improper Physical Contact

 

Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 20, 89

FEP Cases 1361 (1st Cir. 2002), affirmed the jury’s finding of Title VII liability for sexual harassment. The court relied in part on evidence of numerous incidents of unwanted touchings.

g. Same-Race Harassment

 

Kang v. U. Lim America, Inc. , 296 F.3d 810, 817, 89 FEP

Cases 566 (9th Cir. 2002), reversed the grant of summary judgment to the defendant. The court stated: “Generally, a plaintiff alleging racial or national origin harassment would present facts showing that he was subjected to racial epithets in the workplace. Here, however, Kang alleged that he and other Korean workers were subjected to physical and verbal abuse because their supervisor viewed their national origin as superior. The form is unusual, but such stereotyping is an evil at which the statute is aimed.” (Citation omitted.) The court continued:

Kang presented evidence that Yoon abused him because of Yoon’s stereotypical notions that Korean workers were better than the rest and Kang’s failure to live up to Yoon’s expectations. On numerous occasions, Yoon told Kang that he had to work harder because he was Korean; he contrasted Koreans with Mexicans and Americans who he said were not hard workers; and although U. Lim de Mexico employed 50–150 Mexican workers, Yoon did not subject any of them to physical abuse. This evidence created a genuine issue of material fact as to whether Yoon’s abuse and imposition of longer working hours was based on Kang’s national origin.

Id. Judge Fernandez dissented. Id. at 821–23.

h. Disability-Based Harassment

 

Gowesky v. Singing River Hospital Systems , 321 F.3d 503,

509–11, 13 AD Cases 1711 ( 5th Cir. 2003), affirmed the grant of summary judgment to the ADA harassment defendant. Plaintiff was an emergency room physician who accidentally contracted Hepatitis C while caring for a patient. After being off work for two years while undergoing treatment, the hepatitis was in remission and she sought to regain her job. Hospital administrators remarked that it was not clear she could go back to the emergency room, that she would need clearance from a neutral physician, that she might have to have weekly blood draws and attend a refresher course, and that she might need to provide assurances she was not infectious. However, the hospital repeatedly scheduled her to return to work. The court held that there was no actionable harassment:

It is not difficult to conclude on this slender evidence
that no actionable disability-based harassment occurred. The conditions that Rimes and Weldon placed on Gowesky were, given the nature of Gowesky’s work, eminently reasonable. Taken as a whole, the conditions amount to three requirements: that she not present the risk of infection to employees and patients, that she be able to reassure employees and patients of her continuing non-infectious status, and that she be fully capable of resuming her duties. Moreover, even if these conditions were “unreasonable,” it is unclear that an “unreasonable” return-to-work condition could raise a genuine material fact issue concerning “harassment.” Gowesky has failed to present any authority, and we have located none, for the proposition that an unreasonable condition alone constitutes “harassment” under the ADA or its model, Title VII.

Id. at 510. The court also expressed concern about extending actionable harassment to a situation in which the plaintiff had not yet returned to work. Id. at 510–11.

2. Tangible Employment ActionsQuantock v. Shared Marketing Services, Inc., 312 F.3d 899,

903 n.1, 90 FEP Cases 883 ( 7th Cir. 2002), reversed the grant of summary judgment to the Title VII sexual harassment defendant. The court rejected plaintiff’s quid pro quo claim, holding that a temporary change in job duties and title, but at the same level as previously, without any change in pay, benefits, work space, or other factors, was not a tangible employment action. The court cited only Traylor v. Brown, described above, which set forth the standard for materially adverse employment actions in the context of a discrimination case.

3. Failure to ComplainBowen v. Missouri Department of Social Services, 311 F.3d

878, 884, 90 FEP Cases 782 (8th Cir. 2002), reversed the grant of summary judgment to the white plaintiff complaining of racial harassment by her African-American supervisor, Francine Lee. The court held that plaintiff’s three complaints of harassment by Lee, one of them made within hours of the occurrence and all made promptly, and her complaint that Lee has intimidated her supervisor, coupled with the defendant’s statement that it could not guarantee plaintiff’s personal safety from Lee, were enough to create a jury issue.

4. Existence and Adequacy of the PolicyMarrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 21–22,

89 FEP Cases 1361 (1st Cir. 2002), affirmed the jury’s finding of Title VII liability for sexual harassment. The court held that a reasonable jury could find that there was no sexual harassment policy in existence, in light of the plaintiff’s corroborated denial that employees were even informed about such a policy, the defendant’s inability to produced a dated copy of the policy or a signed statement that plaintiff had received it, the defendant’s testimony about the posting of sexual harassment posters that was contradicted by the film of the workplace, and the contradictions in the defendant’s officials’ testimony.

5. Alternative RemediesHiggins v. Metro-North R. Co. , 318 F.3d 422, 425, 90 FEP

Cases 1583 (2d Cir. 2003), affirmed the grant of summary judgment to the defendant but held that claims of intentional infliction of emotional distress can be brought under the Federal Employers’ Liability Act. Quoting from the Seventh Circuit standard used by the lower court, the court stated that the sexual harassment plaintiff “may prevail in an intentional tort case by showing either that the intentional tort was committed in furtherance of the employer’s objectives or that the employer was negligent in hiring, supervising, or failing to fire the employee.” The plaintiff here did not make any of these showings. Judge Sotomayor concurred in the result.

V. Litigation

A. Administrative Exhaustion

 

Nichols v. Muskingum College, 318 F.3d 674, 90 FEP Cases

1744 (6th Cir. 2003), reversed the dismissal of plaintiff’s case and held that the plaintiff’s charge was timely filed with the Ohio Civil Rights Commission 295 days after the alleged discrimination, and adequately initiated State proceedings, although the charge was filed outside the six-month charge-filing period under State law and the Ohio CRC refused to consider the charge under State law. The court held that the worksharing agreement could not cut short the plaintiff’s rights under Title VII.

And now, let’s get it completely backwards: Vasquez v.

County of Los Angeles , 307 F.3d 884, 894–95, 89 FEP Cases 1705 (9th Cir. 2002), affirmed the grant of summary judgment to the Title VII defendant with respect to plaintiff’s claim that he was retaliated against for filing his EEOC charge, because the alleged retaliation involved different perpetrators, and forms of conduct, different than those alleged in the charge and a reasonable agency investigation would not have uncovered the retaliation. The court held that plaintiff’s claims of pre-charge retaliation were adequately exhausted because the relevant facts were alleged in the charge, even though the charge did not claim retaliation, because a reasonable investigation would have uncovered the retaliation. Judge Ferguson dissented. Id. at 897–906.

B. Timeliness

 

1. Existence of Continuing Violations

 

a. National R.R. Passenger Corp. v. Morgan

 

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122

S. Ct. 2061, 88 FEP Cases 1601 (2002), rejected the doctrine of continuing violations under Title VII for discrete actions, but upheld the doctrine for hostile-environment cases, subject to a laches defense of uncertain scope. “ A discrete retaliatory or discriminatory act ‘occurred’ on the day that it ‘happened.’ A party, therefore, must file a charge within either 180 or 300 days of the date of the act or lose the ability to recover for it.” Id. at 2070–71. The Court looked to the language of § 703(a) for examples of “numerous discrete acts,” which include hiring, firing, compensation, terms and conditions of employment, and the like. Id. at 2071. A discrete act or occurrence is a “practice” “even when it has a connection to other acts.” Id. It relied upon Evans, Ricks, and Robbins & Myers, Inc., holding that “discrete acts that fall within the statutory time period do not make timely acts that fall outside the time period.” Id. at 2071–72. The court summarized this part of its holding:

We derive several principles from these cases. First,
discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred. The existence of past acts and the employee’s prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim.

 

As we have held, however, this time period for filing a
charge is subject to equitable doctrines such as tolling or estoppel. . . . Courts may evaluate whether it would be proper to apply such doctrines, although they are to be applied sparingly.


Id.
at 2072 (citations omitted.) The Court saw little practical difficulty in identifying discrete acts “such as termination, failure to promote, denial of transfer, or refusal to hire.” Id. at 2073. It stated: “Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice.’” Id. The “discovery rule” was not presented by the case, but both the majority and dissenting opinions seemed to find a way of speaking of it with favor while not deciding whether it is proper. Justice Thomas wrote for the majority, at 2073 n. 7:

There may be circumstances where it will be difficult to determine when the time period should begin to run. One issue that may arise in such circumstances is whether the time begins to run when the injury occurs as opposed to when the injury reasonably should have been discovered. But this case presents no occasion to resolve that issue.

Justice O’Connor’s dissent agreed:

Like the Court, I see no need to resolve fully the application of the discovery rule to claims based on discrete discriminatory acts. . . . I believe, however, that some version of the discovery rule applies to discrete-act claims. . . . In my view, therefore, the charge-filing period precludes recovery based on discrete actions that occurred more than 180 or 300 days after the employee had, or should have had, notice of the discriminatory act.

Id. at 2078. Justice O’Connor’s dissent further emphasized the discovery rule. Discussing the two-year limit on back pay under § 706(g)(1) of Title VII, 42 U.S.C. § 2000e–5(g)(1), she stated:

Because of the potential adjustments to the charge-filing period based on equitable doctrines, two years of backpay will sometimes be available even under my view. For example, two years of backpay may be available where an employee failed to file a timely charge with the EEOC because his employer deceived him in order to conceal the existence of a discrimination claim.

Id. at 2079. The majority opinion signaled that there might be an exception to its rule for discrete acts. It stated at 2073 n.9:

We have no occasion here to consider the timely filing question with respect to “pattern-or-practice” claims brought by private litigants as none are at issue here.

The Court then turned to hostile-environment claims and held that they were “different in kind from discrete acts” because their nature involves repeated conduct and the cumulative effect of individual acts. Id. at 2073. It made clear that racial and sexual hostile environments are to be judged by the same standards, id. at 2074 n.10, and stated that Title VII’s prohibition of discrimination “is not limited to ‘economic’ or ‘tangible’ discrimination.” Id. at 2073 (citations omitted). The Court summarized its holding as to hostile environment claims:

A hostile work environment claim is comprised of a series of separate acts that collectively constitute one “unlawful employment practice.” 42 U.S.C. § 2000e-5(e)(1). The timely filing provision only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability. That act need not, however, be the last act. As long as the employer has engaged in enough activity to make out an actionable hostile environment claim, an unlawful employment practice has “occurred,” even if it is still occurring. Subsequent events, however, may still be part of the one hostile work environment claim and a charge may be filed at a later date and still encompass the whole.

Id. at 2074 (footnote omitted.) The Court provided guidance by comparing a 400-day pattern of harassment to one in which there was a 100-day period of harassment, a 300-day break in the hostile environment, and then a resumption on day 401. Id. at 2075. It stated:

In truth, all other things being equal, there is little difference between the two scenarios as a hostile environment constitutes one “unlawful employment practice” and it does not matter whether nothing occurred within the intervening 301 days so long as each act is part of the whole. Nor, if sufficient activity occurred by day 100 to make out a claim, does it matter that the employee knows on that day that an actionable claim happened; on day 401 all incidents are still part of the same claim. On the other hand, if an act on day 401 had no relation to the acts between days 1–100, or for some other reason, such as certain intervening action by the employer, was no longer part of the same hostile environment claim, then the employee can not recover for the previous acts, at least not by reference to the day 401 act.

Id. The Court made explicit that “the statute in no way bars a plaintiff from recovering damages for that portion of the hostile environment that falls outside the period for filing a timely charge.” Id. In the case at bar, the Court held, the claimed racially hostile environment outside the 300-day period was the same as that inside the 300-day period because harassing incidents were relatively frequent, perpetrated by the same managers, and involved similar types of conduct, in that “managers made racial jokes, performed racially derogatory acts, made negative comments regarding the capacity of blacks to be supervisors, and used various racial epithets.” Id. at 2076. The Court held that employers have means of protecting themselves from unreasonably long delays. Because the timely-filing requirement is not jurisdictional but is subject to equitable exceptions, the Court stated, equity allows courts to take into account the employer’s interest in prompt notice. Id. at 2076–77. It continued:

In addition to other equitable defenses, therefore, an employer may raise a laches defense, which bars a plaintiff from maintaining a suit if he unreasonably delays in filing a suit and as a result harms the defendant. This defense “‘requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.’” We do not address questions here such as “how—and how much—prejudice must be shown” or “what consequences follow if laches is established.” 2 Lindemann 1496–1500. We observe only that employers may raise various defenses in the face of unreasonable and prejudicial delay.

Id. at 2077 (footnote omitted.) The Court stated at 2077 n.14 that it was not addressing the question whether laches may be applied against the EEOC when it sues, but added:

We note, however, that in Occidental there seemed to be general agreement that courts can provide relief to defendants against inordinate delay by the EEOC. See Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 373 (1977). Cf. id., at 383 (REHNQUIST, J., dissenting in part) (“Since here the suit is to recover backpay for an individual that could have brought her own suit, it is impossible to think that the EEOC was suing in the sovereign capacity of the United States”).

Now-Chief Justice Rehnquist’s quoted statement is presumably no longer valid in light of EEOC v. Waffle House, Inc., 534 U.S. 279, 122 S. Ct. 754, 12 AD Cases 1001 (2002).

b. Failure to Accommodate

 

Elmenayer v. ABF Freight System, Inc. , 318 F.3d 130, 134

–35, 90 FEP Cases 1393 ( 2d Cir. 2003), affirmed the dismissal of plaintiff’s religious-discrimination suit as time-barred, holding that the failure to provide a reasonable accommodation for plaintiff’s religious observances is not a continuing violation.

c. Hostile Environment

 

Felton v. Polles, 315 F.3d 470, 486, 90 FEP Cases 812

(5th Cir. 2002), reversed the denial of qualified immunity and held in part that plaintiff had not shown a continuing violation because there had been a three-year break during the alleged harassment, and no actions of the same type had occurred during the charge-filing period.

McFarland v. Henderson, 307 F.3d 402, 408–09, 90 FEP

Cases 23 (6th Cir. 2002) , reversed the grant of summary judgment to the defendant and held that plaintiff had shown a material issue as to the timeliness of her harassment claim. Plaintiff alleged that her harasser had spread unfounded lies about her, to diminish the esteem with which she was held in the workplace, after she rejected his advances. The court held that her contact with an EEO counselor was timely because it occurred within 45 days after plaintiff learned of yet another derogatory statement.

Jensen v. Henderson , 315 F.3d 854, 90 FEP Cases 898

(8th Cir. 2002), reversed the grant of summary judgment to the defendant for untimeliness on the hostile-environment claim. The alleged harassment began about May 4, 1999, she complained internally about it on May 10, contacted the EEO office on June 10, and received complaint forms but did not fill them out. She became subject to depression, and has been on compensated psychiatric leave since November 15, 1999. The EEOC later determined that she had abandoned her complaint. On January 20, 2000, her attorney wrote to demand a “formalization” of her complaint. Id. at 856. The lower court converted defendant’s motion to dismiss this claim into a motion for summary judgment and held that plaintiff had not shown she contacted an EEO counselor within the 45-day Federal-sector period after her last day of work, and that she could not complain of harassment thereafter because she was not exposed to a hostile environment. The Eighth Circuit reversed and remanded, holding that under Morgan she only needed to show that “‘an act contributing to the claim’” occurred within the 45-day period. Id. at 859 (emphasis in original). The court added: “Only the smallest portion of that ‘practice’ needs to occur within the limitations period for the claim to be timely.” Id. The court stated that, because of the “ongoing nightmare” nature of harassment, “‘[a]n incident within the limitations period need not satisfy the definition of sexual harassment under Title VII when viewed in isolation.’” Id. at 859 n.10 (citation omitted). The court held that sexual harassment is a function of the nonresponse of the employer, not the underlying conduct of co-workers, and that a hostile environment can therefore continue after the last day of employment. Id. at 861.

Boyler v. Cordant Technologies, Inc. , 316 F.3d 1137, 90

FEP Cases 1249 (10th Cir. 2003), reversed the grant of summary judgment to the defendant, holding in light of Morgan that the plaintiff’s claims of a racially and sexually hostile environment going back to 1982 were timely raised in her 1997 charge.

2. Equitable Estoppel or the Discovery RuleAllen v. Chicago Transit Authority , 317 F.3d 696, 698–99,

90 FEP Cases 1229 (7th Cir. 2003), reversed the grant of summary judgment to the defendant. The court held that plaintiffs’ time to file a charge with respect to the promotion of two white employees in 1995 and 1997 did not begin until the selection of the second white employee in 1997, because it was not until then that plaintiffs had reason to suspect that racial discrimination may have been involved.

3. 42 U.S.C. § 1981 and the Four-Year Limitations
Period of 28 U.S.C. § 1658
To date, three courts of appeals have held that the four-year

period of limitations in 28 U.S.C. § 1658 does not apply to the amendments to § 1981 in the Civil Rights Act of 1991 because § 1658 is limited to the enactment of new statutes, not the amendment of old statutes. Zubi v. AT&T Corp. , 219 F.3d 220, 225–26, 83 FEP Cases 417 (3d Cir. 2000); Jones v. R.R. Donnelley & Sons Co., 305 F.3d 717, 90 FEP Cases 939 (7th Cir. 2002), petition for cert. filed, (U.S., Feb. 13, 2003) (No. 02–1205); Madison v. IBP, Inc., 257 F.3d 780, 797–98, 86 FEP Cases 77 (8th Cir. 2001), vacated and remanded for reconsideration on other issues, __ U.S. __, 122 S. Ct. 2583, 153 L. Ed. 2d 773 (2002) .

One court of appeals has held that the four-year period

applies to claims under 42 U.S.C. § 1981(b) (the amended portion) but not to claims arising under § 1981(a) (the unamended portion). Harris v. Allstate Insurance Co., 300 F.3d 1183, 1192 (10th Cir. 2002).

4. Oral Notice of Right to SueEbbert v. DaimlerChrysler Corp., 319 F.3d 103, 13 AD

Cases 1806 (6th Cir. 2003), reversed the grant of summary judgment to the defendant. The court held that the EEOC’s oral notice to the plaintiff of the dismissal of the EEOC charge started the suit-filing period running. Sec. 706(f)(1) of Title VII, 42 U.S.C. § 2000e–5(f)(1), states that when a charge is dismissed the EEOC or Justice Department “shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge.” The statute does not specify written notice, and the court held that the EEOC’s Compliance Manual is not dispositive because it is intended only for internal agency guidance and expresses how the agency wants its employees to conduct its business, and is entitled only to the lowest level of Skidmore deference. The court held that written notice will ordinarily be the means of providing notice that starts the suit-filing period, but that oral notice suffices where it is sufficient to inform the charging party of all necessary information. Here, however, the record did not show that the oral notice was sufficient:

In this case, oral notice was just as complete as
written notice in all respects except one. There is no proof that Ebbert knew when the 90-day statute of limitations period would start as a result of her phone conversations with the EEOC. More specifically, no evidence shows that Ebbert was told or otherwise knew the 90 days would start running from the date of the conversation. DaimlerChrysler had the burden of proving the oral notice was as comprehensive as the written version and, in particular, that it included an explanation of the “start date.” DaimlerChrysler’s evidence of notice, however, was factually incomplete because Porter was never deposed and there was no other evidence of what she told Ebbert on the phone. All we know about Porter’s August 2000 conversation with Ebbert is derived from Ebbert’s August 23, 2000 letter to Porter. No evidence shows that Ebbert knew that the limitations period began as of the August 2000 phone call. Therefore, since the exchange of letters entered into evidence and the testimony offered omit one of the necessary elements of notice, we hold DaimlerChrysler failed to establish that it is entitled to judgment.

Id. at 116–17 (footnote omitted.)

5. Uncommunicated DecisionsWright v. AmSouth Bancorporation , 320 F.3d 1198, 91

FEP Cases 41 (11th Cir. 2003) , vacated the grant of summary judgment on timeliness grounds to the ADEA defendant. Plaintiff filed his ADEA charge timely after a clear communication to him that he would be fired, but the lower court had held that his charge-filing time began to run when he formed a belief he would be fired. The court held that “unequivocal notice” is required to start the time running. “A ‘final decision’ that remains uncommunicated to the terminated employee has no impact on the statutory filing deadline.” (Citation omitted.) The court stated that any other result would require the filing and investigation of charges based on hypothetical discrimination, and the issuance of advisory decisions by the EEOC.

C. Supplemental Jurisdiction

 

Treglia v. Town of Manlius , 313 F.3d 713, 723, 13 AD Cases

1537 ( 2d Cir. 2002), reversed the dismissal of plaintiff’s State-law disability discrimination claim. “It is unclear from the district court’s opinion whether the court simply declined supplemental jurisdiction over the state discrimination claim or whether it dismissed that state claim on the merits,” but the court held that either course of action required reversal. “Supplemental jurisdiction in this case is proper because Treglia’s state discrimination claim arises out of approximately the same set of events as his federal retaliation claim. Moreover, we have held that “the discretion to decline supplemental jurisdiction is available only if founded upon an enumerated category of 28 U.S.C. § 1367(c).” Id.

D. Judicial Estoppel

 

De Leon v. Comcar Industries, Inc. , 321 F.3d 1289, 91 FEP

Cases 105 (11th Cir. 2003) , affirmed the grant of summary judgment to the defendant, holding that “judicial estoppel bars a plaintiff from asserting claims previously undisclosed to the bankruptcy court where the plaintiff both knew about the undisclosed claims and had a motive to conceal them from the bankruptcy court, applies equally in Chapter 13 bankruptcy cases” as in Chapter 7 cases.

E. Arbitration

 

1. Late-Breaking Developments

 

a. Duffield and EEOC v. Luce, Forward

 

The Ninth Circuit has granted rehearing en banc in EEOC

v. Luce, Forward, Hamilton & Scripps, 303 F.3d 994, 89 FEP Cases 1134, 13 AD Cases 792 (9th Cir. 2002). The divided panel in Luce, Forward had held that Duffield was no longer good law in light of Circuit City. The grant of rehearing en banc is officially reported at 319 F.3d 1091 (9th Cir. 2003) .

b. Congress Has Exempted Auto Dealers from
Arbitration Agreements Imposed by Manufacturers

 

Congress passed, and the President signed, a provision

exempting automobile dealers from mandatory predispute arbitration requirements imposed by their franchisors: “Notwithstanding any other provision of law, whenever a motor vehicle franchise contract provides for the use of arbitration to resolve a controversy arising out of or relating to such contract, arbitration may be used to settle such controversy only if after such controversy arises all parties to such controversy consent in writing to use arbitration to settle such controversy.” Sec. 11028(a)(2) of Pub. L. 107–273, 116 Stat. 1836, enacted Nov. 2, 2002.

c. Green Tree Financial Corp. v. Bazzle

 

On January 10, 2003, the Supreme Court granted

certiorari in Green Tree Financial Corp. v. Bazzle, __ U.S. __, 123 S. Ct. 817 (2003) (No. 02–634), on the question whether the Federal Arbitration Act allows a court to import class action procedures into an arbitration agreement that makes no provision for class actions.

2. Arbitrability

 

a. Unsigned Agreements

 

Tinder v. Pinkerton Security , 305 F.3d 728, 735, 89 FEP

Cases 1537 ( 7th Cir. 2002), affirmed an order compelling arbitration. The plaintiff testified that she did not remember receiving the arbitration “agreement,” although she did recall seeing a company magazine article discussing it. The court held that this was not enough to create a triable issue of fact as to the existence of the agreement, since she did not controvert the defendant’s affiants who stated that the “agreement” was attached to paychecks. The court held that the at-will plaintiff’s continued employment, coupled with the defendant’s mutual agreement to arbitrate, was adequate consideration under Wisconsin law.

b. Signed Agreements Reciting Receipt of the Policy
or Rules, Where the Documents Were Not in Fact Provided

 

Nguyen v. City of Cleveland, 312 F.3d 243, 19 IER Cases

618 (6th Cir. 2002), dismissed the defendant’s appeal from the denial of its motion to compel arbitration, holding that plaintiff’s allegations that (1) prior to signing the ADR agreement stating that it applied to disputes “after” employment, he asked a Vice President whether it applied to terminations and was told that it was unclear, (2) he asked for but did not receive the handbook another signed form stated he had received, (3) he signed the ADR agreement believing that it did not cover disputes over terminations, and (4) he was later told by the VP that the policy did not cover terminations. “Nguyen’s affidavit raises a reasonable question as to whether there was valid assent on his part or whether the arbitration agreement covered the factual situation outlined above.” Id. at 246.

c. Former Members of NASD

 

Riccard v. Prudential Insurance Co., 307 F.3d 1277, 1286

(11th Cir. 2002), held that an ADA and ADEA claimant was bound by his NASD U–4 agreement to arbitrate his claims against Prudential because Prudential was a NASD member at the time of the dispute, even though it was no longer a member at the time of suit.

d. Agreements Waiving Fee Awards

 

McCaskill v. SCI Management Corp. , 298 F.3d 677, 89

FEP Cases 830 ( 7th Cir. 2002), held that an arbitration agreement barring fee awards in any situation was unenforceable. Judge Bauer so stated at 680. Judge Rovner’s concurrence so stated at 683–86. Judge Manion dissented. Id. at 686.

e. Agreements Requiring the Splitting of Aritration Costs

 

Adkins v. Labor Ready, Inc. , 303 F.3d 496, 502–03, 8 WH

Cases 2d 7 ( 4th Cir. 2002), affirmed an order compelling arbitration of FLSA claims. The court rejected plaintiff’s argument that arbitration imposed prohibitive costs on claimants, because there was no evidence of the cost of arbitration under the rules in question, and no evidence of the plaintiffs’ financial status.

Morrison v. Circuit City Stores, Inc. , 317 F.3d 646, 663–65,

90 FEP Cases 1697 ( 6th Cir. 2003) (en banc), held that an arbitration agreement is not enforceable if a cost-splitting provision in the agreement would chill similarly situated individuals from seeking to vindicate their rights in arbitration. The claimant has the burden of making that showing, and may do so prior to the arbitration. If the claimant succeeds in that showing, the cost-splitting provision can be severed and the arbitration can go forward.

The deterrent function of the laws in question is, in part, that employers who engage in discriminatory practices are aware that they may incur liability in more than one case. If, however, a cost-splitting provision would deter a substantial number of potential litigants, then that provision undermines the deterrent effect of the anti-discrimination statutes. Thus, in order to protect the statutory rights at issue, the reviewing court must look to more than just the interests and conduct of a particular plaintiff. A particular plaintiff may be determined to pursue his or her claims, regardless of costs. But a court considering whether a cost-splitting provision is enforceable should consider similarly situated potential litigants, for whom costs will loom as a larger concern, because it is, in large part, their presence in the system that will deter discriminatory practices.

 

For this reason, if the reviewing court finds that the cost-

splitting provision would deter a substantial number of similarly situated potential litigants, it should refuse to enforce the cost-splitting provision in order to serve the underlying functions of the federal statute. In conducting this analysis, the reviewing court should define the class of such similarly situated potential litigants by job description and socioeconomic background. It should take the actual plaintiff’s income and resources as representative of this larger class’s ability to shoulder the costs of arbitration. But, as one district court has noted, Green Tree “does not necessarily mandate a searching inquiry into an employee’s bills and expenses.” Giordano v. Pep Boys–Manny, Moe & Jack, Inc., No. CIV. A. 99- 1281, 2001 WL 484360, at *6 (E.D.Pa. March 29, 2001) . [FN9] “[N]othing in Green Tree requires courts to undertake detailed analyses of the household budgets of low-level employees to conclude that arbitration costs in the thousands of dollars deter the vindication of employees’ claims in arbitral fora.” Id.

Moreover, in addressing the effect of arbitration costs on

a class, the reviewing court should look to average or typical arbitration costs, because that is the kind of information that potential litigants will take into account in deciding whether to bring their claims in the arbitral forum. In considering the decision-making process of the typical member of a class, it is proper to take into account the typical or average costs of arbitration.

* * *

 

Finally, under this analysis, the reviewing court should
discount the possibilities that the plaintiff will not be required to pay costs or arbitral fees because of ultimate success on the merits, either because of cost-shifting provisions in the arbitration agreement or because the arbitrator decides that such costs or fees are contrary to federal law. The issue is whether the terms of the arbitration agreement itself would deter a substantial number of similarly situated employees from bringing their claims in the arbitral forum, and thus the court must consider the decision-making process of these potential litigants. In many cases, if not most, employees considering the consequences of bringing their claims in the arbitral forum will be inclined to err on the side of caution, especially when the worst-case scenario would mean not only losing on their substantive claims but also the imposition of the costs of the arbitration.

The court held that the results may differ, with “high-level managerial employees and others with substantial means” able to afford the costs of arbitration, but other employees not able to afford such costs.

Ferguson v. Countrywide Credit Industries, Inc., 298 F.3d

778, 89 FEP Cases 706 (9th Cir. 2002), affirmed the district court’s denial of defendant’s motion to compel arbitration of plaintiff’s harassment and retaliation claims. The court held that the cost-splitting provisions were unconscionable. The agreement provided for a $125 filing fee and stated that the employer would pay for the first day’s arbitration costs, but that the parties would split all of the other arbitration costs. The court noted that this could run to $2,000-$3,000 a day, with arbitral fees ranging up to $300-$400 an hour. Id. at 785 n.7. The court held that the arbitrator’s discretion to shift the costs did not save the agreement. Id. at 785 n.8.

f. Mutual Mistake

 

Adkins v. Labor Ready, Inc. , 303 F.3d 496, 503–04, 8 WH

Cases 2d 7 ( 4th Cir. 2002), affirmed an order compelling arbitration of FLSA claims. The court rejected plaintiff’s argument that there was not a valid contract because of mutual mistake as to the everyday end-of-day termination of employment, because in West Virginia “mutual mistake” has to involve a mistake of fact, not a mistake of law. The court also rejected plaintiff’s argument that the contract terminated at the end of the first day of employment, holding that the agreement was permissibly in the application form, and lived on with respect to the employment, notwithstanding any daily end of employment.

g. Class Actions

 

The Supreme Court has granted review in Green Tree

Financial Corp. v. Bazzle, __ U.S. __, 123 S. Ct. 817 (2003) (No. 02–634), to resolve the question whether a court may require a defendant to submit to class arbitration when it has required consumers to sign an arbitration agreement that does not provide for class arbitration. The decision of the South Carolina Supreme Court is reported at 351 S.C. 244, 569 S.E.2d 349 (S.C. 2002).

3. Conditions Precedent to Arbitration HIM Portland, LLC v. DeVito Builders, Inc., 317 F.3d 41

(1st Cir. 2003), affirmed the denial of the defendant’s motion to compel arbitration where the agreement stated that mediation was a condition precedent to arbitration, and the defendant had not requested mediation. It was unclear whether mediation was also a condition precedent to litigation.

Kemiron Atlantic, Inc. v. Aguakem International, Inc., 290

F.3d 1287 (11th Cir. 2002), affirmed an order refusing to compel arbitration where the agreement specified that mediation was a condition precedent to arbitration, and no mediation had occurred.

4. Unilateral Power to Pick the Panel from Which
Arbitrators Are Chosen

 

Murray v. United Food and Commercial Workers

International Union, 289 F.3d 297, 304, 88 FEP Cases 1185 (2d Cir. 2002), held that the arbitration agreement was unconscionable and unenforceable in part because it did not rely on external rules for the selection of arbitrators, but provided that “the selection method is to be by the alternate strike method from a list of arbitrators arbitrarily selected or created by Local 400, and then provided to the employee. Local 400’s argument, therefore, is little more than a claim that because Local 400 says it will provide a list of neutral arbitrators and abide by the ultimate arbitration decision, the selection procedure is not one-sided and the agreement is not unconscionable.” Id. at 304. This was not enough.

5. Rules Governing the ArbitrationBrooks v. Travelers Insurance Co., 297 F.3d 167 (2d Cir.

2002), vacated the dismissal of plaintiff’s ADA, ADEA, and ERISA Complaint after the defendant responded to the panel’s concerns expressed at oral argument and dropped its insistence on the arbitration of the claim. The panel had questioned whether plaintiff would have an effective opportunity to vindicate his rights under the defendant’s arbitration rules. First, the rules provided for a one-day hearing, and required a showing of good cause and unusual circumstances for a second day of hearing. The court held that an arbitrator could reasonably conclude that there could not be any more than two days of hearings in any circumstances. The court stated:

At oral argument, members of the panel questioned whether these limitations might prevent a plaintiff from securing vindication of federal statutory rights, pointing out that it is by no means unusual for the presentation of evidence in suits under the federal employment discrimination statutes to exceed two days by a substantial margin. Furthermore, the time spent in the presentation of plaintiff’s evidence is not within the plaintiff’s exclusive control. Since the defendant is, of course, entitled to make objections and to cross-examine each witness the plaintiff presents, members of the panel hypothesized that by proliferating objections and extending its cross-examination of the plaintiff’s witnesses, Travelers can effectively run out the plaintiff’s time limitation. Also, the plaintiff has no control over how efficiently the arbitrator conducts the session. If the ambiguous policy language does restrict proceedings to one, or possibly two, days, we asked whether this could impair a plaintiff’s ability to vindicate statutory rights.

 

Id. at 169–70. The court was also troubled by the

limitations on relief: “The first sentence provides for compensatory damages only in cases of ‘direct’ injury; the second sentence allows the arbitrator to order reinstatement of the employee ‘only if money damages are insufficient as a remedy;’ the third sentence forbids punitive damages, injunctive relief and attorney’s fees ‘[u]nless expressly provided for by applicable statute.’” Id. at 170. The court pointed out that the “expressly” limitation seems to preclude such relief even where the courts have authoritatively construed a statute as providing or allowing for such relief. The court also pointed out that reinstatement is not conditioned on the inadequacy of money damages: “Federal employment discrimination statutes do not necessarily restrict reinstatement to circumstances where money damages are insufficient.” Id. The court also questioned the limitation of compensatory damages to “direct” injuries. Id. at 171. The court expressed concern over an apparent limitation on arbitrators’ ability to award attorneys’ fees to a prevailing plaintiff, over the requirement of cost-splitting for arbitral fees, and over the requirement that plaintiff pay all of the costs of a second day of hearing. Id. Finally, the court expressed concern over the one-year period of limitations in the arbitration “agreement.”

Ferguson v. Countrywide Credit Industries, Inc., 298 F.3d

778, 89 FEP Cases 706 (9th Cir. 2002), affirmed the district court’s denial of defendant’s motion to compel arbitration of plaintiff’s harassment and retaliation claims. Plaintiff challenged the limitation of discovery as unconscionable: “The discovery provision states that ‘[a ] deposition of a corporate representative shall be limited to no more than four designated subjects,’ but does not impose a similar limitation on depositions of employees. Ferguson also notes that the arbitration agreement sets mutual limitations (e.g., no more than three depositions) and mutual advantages (e.g., unlimited expert witnesses) which favor Countrywide because it is in a superior position to gather information regarding its business practices and employees’ conduct, and has greater access to funds to pay for expensive expert witnesses.” Id. at 786. The court held it was unclear that the limitations on discovery would prevent plaintiff from having an effective opportunity to vindicate his claims. However, it held that the limitations did favor the defendant over its employees, and were part of an “insidious pattern” that supported the court’s decision to affirm the lower court. It stated that “the discovery provisions alone are not unconscionable, but in the context of an arbitration agreement which unduly favors Countrywide at every turn, we find that their inclusion reaffirms our belief that the arbitration agreement as a whole is substantively unconscionable.” Id. at 787. the court held that severance was inappropriate in light of the multitude of improper provisions. Id. at 788.

6. Other Questions of Unconscionability

Murray v. United Food and Commercial Workers

International Union, 289 F.3d 297, 304, 88 FEP Cases 1185 (2d Cir. 2002), held that the arbitration agreement was unconscionable and unenforceable in part because the agreement barred any relief that would diminish the power of the union President.

Ferguson v. Countrywide Credit Industries, Inc., 298 F.3d

778, 89 FEP Cases 706 (9th Cir. 2002), affirmed the district court’s denial of defendant’s motion to compel arbitration of plaintiff’s harassment and retaliation claims. The court stated:

Countrywide’s arbitration agreement specifically
covers claims for breach of express or implied contracts or covenants, tort claims, claims of discrimination or harassment based on race, sex, age, or disability, and claims for violation of any federal, state, or other governmental constitution, statute, ordinance, regulation, or public policy. On the other hand, the arbitration agreement specifically excludes claims for workers’ compensation or unemployment compensation benefits, injunctive and/or other equitable relief for intellectual property violations, unfair competition and/or the use and/or unauthorized disclosure of trade secrets or confidential information. We adopt the California appellate court’s holding in Mercuro, that Countrywide’s arbitration agreement was unfairly one-sided and, therefore, substantively unconscionable because the agreement “compels arbitration of the claims employees are most likely to bring against Countrywide . . . [but] exempts from arbitration the claims Countrywide is most likely to bring against its employees.”

Id. at 784–85 (footnote omitted). The court also held the cost-splitting provision unconscionable, and disapproved of the limitations on discovery. See the above discussions of these issues.

7. Effect of “Opt Out” RightsCircuit City Stores, Inc. v. Najd, 294 F.3d 1104, 89 FEP

Cases 1149 (9th Cir. 2002), affirmed the order compelling arbitration but reversed the award of Rule 11 sanctions against the California FEHA plaintiff. The court held that Duffield did not apply because plaintiff was suing under State law, and not under Title VII. Id. at 1107. The court held that defendant’s promise to be bound by the results of arbitration was adequate consideration, even though it was not required to submit any of its claims against employees to arbitration. Id. at 1108. The court held that the agreement, identical to one it had previously found unconscionable in another case, was not unconscionable here because the plaintiff was provided with a copy of the agreement and thirty days to review it with an attorney, and had the right to opt out of the agreement without any adverse effect on his employment status. As a result, the agreement was not unconscionable because California law requires both procedural and substantive unconscionability. Id. at 1108–09. Judge Paez concurred. Id. at 1110.

8. Stitches in Time? Employer Efforts to Dig Out of HolesMurray v. United Food and Commercial Workers

International Union, 289 F.3d 297, 304–05, 88 FEP Cases 1185 (2d Cir. 2002), held that the arbitration agreement was unconscionable and unenforceable, and rejected the defendant’s efforts to save it:

We decline to allow Local 400 to salvage the agreement simply because it may have provided, after much haranguing, a list of impartial arbitrators in this case, or because it promises to act fairly in future cases. The arbitration agreement is unenforceable as written and Local 400 may not rewrite the arbitration clause and adhere to unwritten standards on a case-by-case basis in order to claim that it is an acceptable one. Cf.Perez v. Globe Airport Sec. Servs. Inc., 253 F.3d 1280, 1285-86 (11th Cir. 2001) (rejecting attempt to rewrite unenforceable arbitration clause in order to salvage it).

 

Ferguson v. Countrywide Credit Industries, Inc., 298 F.3d

778, 89 FEP Cases 706 (9th Cir. 2002), affirmed the district court’s denial of defendant’s motion to compel arbitration of plaintiff’s harassment and retaliation claims. The court held that the cost-splitting provisions were unconscionable, and that the agreement was not saved by the defendant’s unilateral announcement that it would pay arbitration-specific costs, because the company did not follow the procedure for making changes specified in its own agreement, and the announcement therefore could not be enforced.

9. Retaliation Claims for Refusing to Sign A Lawful Agreement

 

Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1312, 88 FEP

Cases 1482 (11th Cir. 2002), held that an employer’s discharge of employees who refuse to sign a lawful arbitration agreement is not retaliation prohibited by the fair employment laws. The court held that there is an objective as well as subjective component to the reasonableness of plaintiffs’ belief that the employer was violating the law, and plaintiffs could not meet this element. “We agree with Harden that the plaintiffs’ belief that Harden was engaged in an unlawful employment practice by requiring the arbitration of employment discrimination claims was not objectively reasonable.” Id. The court also held that “that an unenforceable arbitration agreement does not amount to an unlawful employment practice under the federal employment discrimination laws.” Id. at 1316.

F. Other ADR

 

Department of Air Force, 436th Airlift Wing, Dover Air

Force Base v. Federal Labor Relations Authority , 316 F.3d 280, 90 FEP Cases 1253, 171 LRRM 2774 (D.C. Cir. 2003), held that an EEO complaint is a grievance and that, in the absence of an objection by the plaintiff, the employee union had a right to notice and an opportunity to be heard at the mediation of the complaint.

G. Class Actions

 

1. Class Actions Seeking Common-Law DamagesBeck v. Boeing Co., 2003 WL 683797, No. 02–35140

(9th Cir. Feb. 25, 2003) (unpublished), affirmed the certification of the class for declaratory and injunctive relief. The court held that plaintiffs can make their showing on the merits by statistics alone, and the defendant can meet plaintiffs’ showing by attacking the statistics, but not by producing individualized evidence that each decision was motivated by a legitimate nondiscriminatory reason. The court vacated the certification of the class for punitive damages as “premature.” While the court had no quarrel with hybrid certification under Rules 23(b)(2) and (b)(3), it cited Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 361 (1977), for the proposition that “‘[T]he question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination.’ (emphasis added).” The court relied on the fact that the lower court claimed the punitive damages would flow directly from the finding of classwide liability. The court held that the certification of the class for punitive damages was an abuse of discretion because “a finding that the employer engaged in a pattern or practice of discrimination does not automatically entitle every class member to damages.” A class member must have been harmed personally by unlawful behavior, in order to qualify for punitive damages. “Hence, membership in the Phase II class must be restricted to those who allege that they were harmed by the employer’s proven pattern or practice of discrimination.” It added: “Because we hold that questions about systemic disparate treatment should be decided first and vacate those aspects of the district court’s order that relate to class-wide punitive damages, Rule 23(b)(2)’s ‘predominance’ requirement is not violated.” Finally, the court rejected Boeing’s argument that a bifurcated trial plan violates the Seventh Amendment’s Reexamination Clause.

2. Timeliness of a Rule 23(f) Petition for Permission to Appeal

 

Beck v. Boeing Co., 320 F.3d 1021 (9th Cir. 2003), held that

the defendant’s Rule 23(f) petition seeking permission to appeal the class certification was timely because timeliness for a Rule 23(f) petition is governed by Rule 6(a), Fed. R. Civ. Pro., not by Rule 26(a), Fed. R. App. Pro. As a result, intermediate weekends and legal holidays are excluded from the count.

3. Appeals by Class Member Objectors from Final Approval of Settlements

 

Devlin v. Scardelletti, 536 U.S. 1, 122 S. Ct. 2005 (2002),

held that a nonplaintiff class member who objected to a proposed class settlement could appeal from the grant of final approval without first having to intervene. The court stated that it had never restricted the right to appeal to named parties, where the appellant was bound by the order in question. The right of an objector to appeal from final approval of a class settlement, however, is limited to appealing the lower court’s rejection of the appellant’s objections.

4. Settlements in GeneralStaton v. Boeing Co. , 313 F.3d 447, 90 FEP Cases 641

( 9th Cir. 2002), reversed the grant of final approval to a settlement for several reasons. One reason was the court’s concern about the adequacy of injunctive relief:

In this case, we are somewhat uneasy, reading the
settlement as a whole, about whether in reaching the settlement, class counsel adequately pursued the interests of the class as a whole. Provisions giving rise to this unease include the extent of Boeing’s release from liability, which includes any breach of contract action by any class member; the stipulation that the prohibition on race discrimination cannot be enforced in individual cases; the numerous instances in which Boeing is permitted to develop its own remedial schemes (and, in some instances, unilaterally to abandon such schemes as infeasible), with an obligation only to consult with class counsel but with no obligation to submit to any enforcement or dispute resolution mechanism if the schemes are unsatisfactory; the limited role for the consultant Boeing is required to hire; and the incorporation in the agreement of promotion and complaint programs Boeing had already developed and implemented, with no obligation on the part of the Company to continue those programs in their present form or alternatively to substitute programs of the same efficacy.

Id. at 470 (footnote omitted). The court held that these problems would not be enough, by themselves, to reject the settlement. Id. at 471. “At the same time, the questionable factors we have noted do suggest the possibility that class counsel and the IIRs could have agreed to relatively weak prospective relief because of other inducements offered to them in the course of the negotiations. We therefore scrutinize with particular care the aspects of the proposed settlement that provide monetary benefits directly to class counsel and to the IIRs: the attorneys’ fees and damages distribution provisions.” Id. at 472 (footnote omitted). An important reason for the court’s concern was that there was inadequate explanation of the disparities in monetary relief among class members, and between named plaintiffs and class members:

The class receives a total monetary award of $7.3
million. Out of the approximately 15,000-member class, a group of 264 individuals—less than two percent of the class—made up of the named plaintiffs and other class members identified by class counsel as having actively participated in the litigation (together, the “individually identified recipients” or “IIRs”) is to receive $3.77 million, more than half the monetary award. The $3.77 million will be distributed among the IIRs in amounts established by class counsel, who credit the assistance of an independent claims adjuster for consultation on many, but not all, of the claims. There is ample evidence in the record that before retaining this claims adjuster class counsel extensively discussed specific award amounts with some IIRs. Moreover, the record indicates that class counsel made the final decisions concerning many of these designated payments.

 

The individual awards for the IIRs range from $5,000 to
$50,000, with most of the class representatives receiving higher awards than the other IIRs, and average approximately $16,500. Based on our examination of records relating to the Wichita-based IIRs, the individuals singled out for IIR settlement payments are for the most part the same people who signed individual retainers with class counsel that obligated them to pay monthly fees.

 

The remaining $3.53 million of monetary relief is to be
distributed to the rest of the class (the “unnamed class members”). To receive an award, unnamed class members must submit a claim form to an independent claims arbitrator (hired by class counsel and approved by the district court), who will verify the validity of the claims against Boeing’s records and designate awards according to a detailed point system laid out in the decree and applicable only to the unnamed class members. Some 3,400 class members filed claims, so the average payment each unnamed class member would receive is approximately $1,000.

Id. at 457 (footnote omitted). The court summarized this part of its holding, id. at 455:

Finally, the decree sets up a two-tiered structure for the
distribution of monetary damages, awarding each class representative and certain other identified class members an amount of damages on average sixteen times greater than the amount each unnamed class member would receive. At least one person not a member of the class was provided a damages award. The record before us does not reveal sufficient justification either for the large differential in the amounts of damage awards or for the payment of damages to a nonmember of the class. On this ground as well, the district court abused its discretion in approving the settlement.

Judge Trott dissented.

H. Summary Judgment

 

1. Ineffective DenialsTinder v. Pinkerton Security , 305 F.3d 728, 735–36, 89 FEP

Cases 1537 ( 7th Cir. 2002), affirmed the lower court’s confirmation of the arbitration award. Following the standard used for summary judgment, the court stated that, where the defendant presented competent evidence as to the existence of a fact, the plaintiff cannot rebut it by stating that she “does not recall” its having happened.

2. Effect of Contradictions in the Employer’s CaseAllen v. Chicago Transit Authority , 317 F.3d 696, 699–700,

90 FEP Cases 1229 (7th Cir. 2003), reversed the grant of summary judgment to the defendant. The court stated: “When a witness repeatedly contradicts himself under oath on material matters, and contradicts as well documentary evidence likely to be accurate (the time sheets, for example, whose reliability was attested by several witnesses), the witness’s credibility becomes an issue for the jury; it cannot be resolved in a summary judgment proceeding.” (Citations omitted.)

I. Batson Challenges to Peremptory Strikes of Jurors

 

Davey v. Lockheed Martin Corp. , 301 F.3d 1204, 1214–

16, 89 FEP Cases 1164 (10th Cir. 2002), affirmed the lower court’s determination that the defendant’s peremptory challenge to a female juror violated Batson, and that the defendant’s explanation was pretextual. The court held that the defendant’s striking of three female jurors established a prima facie case, and required the defendant to produce an explanation. The defendant stated that the woman did not have a current employer and would not be familiar with the workplace and the need to follow policies and procedures. The juror had been out of the workforce for 14 years. The trial court found the explanation pretextual because the juror had formerly been a Head Nurse, had supervised as many as eight other nurses, had worked in hospitals for ten years, and had to have been familiar with the need to follow policies and procedures. The court described the standard of review: “We review de novo as a legal issue the proffered gender-neutral explanation, but review the court’s ultimate finding of gender discrimination for clear error.” Id. at 1216. The court rejected defendant’s argument that it could not have violated Batson because four women remained on the jury, in light of the fact that the defendant had not yet had an opportunity to make peremptory challenges to the other women; it had used on other women all of the three challenges it had been given.

Bui v. Haley , 321 F.3d 1304 (11th Cir. 2003) , held that

prosecuting counsel did not discharge his duty of providing a race-neutral explanation for striking eight black jurors in the petitioner’s trial by simply stating that he had struck jurors he thought were “favorable to acquit” and had proceeded in good faith, and that assisting prosecution counsel could not elaborate on the reasons at the habeas corpus hearing where the person making the decisions to strike was not present and had not consulted with assistant counsel on the strikes. The Alabama Supreme Court had found the following factors sufficient to satisfy Batson: “In the instant case, the supreme court found these factors to include: (1) that Bui was Vietnamese and tried before the decision in Powers; (2) that the prosecutors were forced to come forward with race-neutral explanations five years after trial; (3) that race-neutral reasons were given for eight of the nine strikes against black jurors; (4) that neither a black defendant nor a black victim was involved; (5) that one black served on the jury; (6) that the defense itself struck one black venire person; and (7) that the circuit judge himself was black.” Id. at 1317. The court held that none of this was sufficient, and that the prosecution violated Batson. Judge Black dissented. Id. at 1318–26.

J. Evidentiary Rulings

 

1. AdmissionsAllen v. Chicago Transit Authority , 317 F.3d 696, 700, 90

FEP Cases 1229 (7th Cir. 2003), reversed the grant of summary judgment to the defendant. The court held that the lower court erred by failing to consider the defendant’s investigator’s stated disbelief of the decisionmaker as a nonbinding evidentiary admission. The court explained:

The district court refused to give any weight to the
finding by the CTA’s own investigator that Tapling’s explanation for Reilly’s promotion was not credible. This was another error. The finding was admissible as an admission made by an employee of a party opponent within the scope of his employment, Fed. R. Evid. 801(d)(2)(D) . . . ; and as an investigative report of a public agency. Fed. R. Evid. 803(8)(C) . . . . How much weight to give such admissions (for they are evidentiary rather than judicial admissions and hence not binding . . . is for the jury to decide, not the judge in ruling on a motion for summary judgment.

(Citations omitted.)

2. Deposition Testimony As Limiting Trial TestimonyFine v. Ryan International Airlines , 305 F.3d 746, 753, 89

FEP Cases 1543 (7th Cir. 2002), affirmed the judgment on a jury verdict for the Title VII retaliation plaintiff. The court rejected defendant’s argument that plaintiff’s deposition testimony limited her claim. The court explained:

Ryan also seems to believe that Fine cannot now
argue that any of the events she complained about in her October 2 letter were discriminatory because she stated in her deposition that there were no incidents that she considered sexually harassing from April 25, 1996, until the date of her termination. But why not? A party is free to contradict her deposition testimony at trial, although her opponent may then introduce the prior statement as impeachment. . . . The jury could have reasonably believed that Fine’s earlier statement was an error or that her statement referred only to workplace harassment and not to disparate treatment in regard to training and personnel files. There was enough evidence for the jury to find that Fine had a good-faith, objectively reasonable belief that Ryan was discriminating against her on the basis of her sex, and we will not disturb its finding.

(Citation omitted.)

3. Other Employees’ Claims of DiscriminationHatley v. Hilton Hotels Corp. , 308 F.3d 473, 475–76, 89 FEP

Cases 1861 (5th Cir. 2002), reversed the grant of judgment as a matter of law on plaintiffs’ Title VII sexual harassment claims. The court relied in part on the defendant’s inadequate investigation and failure to provide relief on earlier complaints. The court held that the testimony of other employees was relevant to show that defendant had earlier been placed on notice that particular employees, who had harassed the plaintiffs, might be harassing women. Id. at 476 n.1.

Fine v. Ryan International Airlines , 305 F.3d 746, 753, 89

FEP Cases 1543 (7th Cir. 2002), affirmed the judgment on a jury verdict for the Title VII retaliation plaintiff. The court rejected defendant’s argument that the lower court erred in admitting the testimony of two other female employees who testified to numerous instances of sexual harassment and discrimination. The court held that this testimony was relevant to Ryan’s good-faith belief that she was complaining of actionable sexual discrimination. Id. at 753–54.

K. Back Pay and Front Pay

 

1. Front Pay

 

Salitros v. Chrysler Corp. , 306 F.3d 562, 570, 13 AD Cases

1057 (8th Cir. 2002), affirmed the judgment for the ADA retaliation plaintiff for $445,516 in front pay, “representing seven years worth of wages and benefits, up to September 8, 2007, Salitros’s anticipated retirement date.” The court held that the award was not an abuse of discretion notwithstanding the jury’s determination that plaintiff was not entitled to back pay through the date of the verdict. The court held that the defendant was not prejudiced by the absence of a hearing on front pay, or by the lower court’s reliance on charts that were not received in evidence. It stated that the award of front pay was a matter for the court. It added: “Salitros’s expert testified at trial about his sources and the methodology he used in preparing back pay exhibits. Chrysler had the opportunity to cross examine Salitros’s expert about the information and assumptions on which the back pay exhibits were based. The front pay exhibits were obviously prepared using the same methodology, simply extended for future years. After Salitros filed the affidavit with the exhibits attached, Chrysler did not move to strike the exhibits or ask the court for an evidentiary hearing, but waited to object until the district court had already ruled on the front pay motion.” Id. at 571. The court rejected defendant’s argument that the award of front pay was an abuse of discretion because defendant had offered to reinstate plaintiff: “In this case, the district court found that the reinstatement Chrysler offered Salitros was illusory, because Salitros was never able to work after he was reinstated, and his inability to work resulted from Chrysler’s ill-treatment: ‘He remained on medical leave because of physically and psychologically damaging harassment experienced at the worksite.’” Id. at 572. Similarly, the court rejected defendant’s argument that the award of front pay was an abuse of discretion as to periods in which plaintiff is unable to work, because “Chrysler’s argument depends on its assertion that it did nothing to cause Salitros to go on medical leave.” Id. The court rejected defendant’s argument that the front pay award conflicted with the jury verdict that there had been no discrimination. “The district court’s finding of animosity between the parties was not based on disability discrimination on Chrysler’s part, but on retaliation. Therefore, the district court’s reasoning did not conflict with the verdict for Chrysler on Salitros’s discrimination claim.” Id. at 573. The court denied any reduction for the value of plaintiff’s sick leave or collateral benefits, because the defendant’s actions had made plaintiff sick. Id. at 573–74.

2. Ending DateFine v. Ryan International Airlines , 305 F.3d 746, 756, 89

FEP Cases 1543 (7th Cir. 2002), affirmed the judgment on a jury verdict for the Title VII retaliation plaintiff, and denied plaintiff’s cross-appeal from the denial of reinstatement. The court held that plaintiff’s stipulation that all damages ceased as of a certain post-employment date waived any claim for reinstatement. Plaintiff had entered into the stipulation in order to avoid discovery into the circumstances of her resignation from a subsequent employer. The court explained:

Fine argues that her stipulation was intended to apply only to money damages, not to equitable remedies such as reinstatement. That is not, however, what the stipulation says. It refers to “any damages” without drawing a distinction between legal and equitable relief. Even more importantly, Fine herself created the endpoint for Ryan’s responsibility when she took the new job. It makes no sense to make Ryan her employer of last resort for life, if it bears no responsibility for the actions of later employers. Both because of the stipulation and for the latter reason, we agree with the district court’s decision to deny reinstatement.

 

3. MitigationEEOC v. Bd. of Regents of University of Wisconsin System ,

288 F.3d 296, 304, 88 FEP Cases 1133 ( 7th Cir. 2002), affirmed the judgment for the EEOC. The court rejected defendant’s argument that it was entitled to a new trial on mitigation, because the charging parties failed to apply for employment with the defendant. The court stated: “But they had explanations for their failure to apply to the very organization which just terminated them. For one thing, after just being terminated for alleged deficiencies in their performance and skills, they had no reason to believe they would be hired if they did apply.” Finally, the court noted that two charging parties had re-applied with the defendant, and had not been hired.

4. Effect of Hoffman PlasticsHoffman Plastics Compounds, Inc. v. N.L.R.B., 535 U.S. 137,

122 S. Ct. 1275, 169 L.R.R.M. (BNA) 2769 (2002), reversed the Board’s grant of back pay to Jose Castro, an undocumented alien who had never been authorized to work in the United States. Castro testified that he had used a friend’s birth certificate fraudulently to obtain a Social Security card, and a California driver’s license, and he had used these to obtain employment. There was no evidence that he had applied or intended to apply for legal authorization to work in the United States. The Court held that the legal landscape of prior decisions was altered by enactment of the Immigration Reform and Control Act of 1986. Speaking of the fact that “it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies,” such as by the employee’s tender of fraudulent documentation or the employer’s knowing hiring of an undocumented alien, the Court stated:

The Board asks that we overlook this fact and allow it to award backpay to an illegal alien years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud. We find, however, that awarding backpay to illegal aliens runs counter to policies underlying IRCA, policies the Board has no authority to enforce or administer.

The Court pointed out that Castro could not satisfy his duty to mitigate his earnings loss without committing further violations of IRCA. Justice Breyer, joined by Justices Stevens, Souterm and Ginsburg, dissented.

The logic of this decision would seem to apply to back pay

awards under all of the antidiscrimination statutes, but not necessarily to awards of compensatory and punitive damages. It is not clear that this decision would bar minimum-wage and overtime awards under the FLSA for work already performed.

The Court’s caveat—that there was no evidence that Castro

had applied or intended to apply for legal authorization to work in the United States—raises the question whether Castro could have rehabilitated himself for purposes of a back pay award by applying for such authorization.

Some courts have held that Hoffman Plastics does not affect

a plaintiff’s right under FLSA or State wage and hour law to obtain back pay or overtime compensation for work actually performed, and/or have for this reason barred discovery into the plaintiff’s immigration status. Flores v. Amigon, 233 F. Supp. 2d 462, 463–65 (E.D. N.Y. 2002); Zeng Liu v. Donna Karan Int’l, Inc., 207 F.Supp.2d 191, 192–93 (S.D. N.Y. 2002); Singh v. Jutla & C.D. & R’s Oil, Inc., 214 F. Supp. 2d 1056, 8 WH Cases 2d 165 (N.D. Calif. 2002).

L. Prejudgment Interest

 

Fine v. Ryan International Airlines , 305 F.3d 746, 757, 89

FEP Cases 1543 (7th Cir. 2002), affirmed the judgment on a jury verdict for the Title VII retaliation plaintiff, but held that the lower court erred in calculating prejudgment interest on plaintiff’s back pay award only until June 30, 2000, although final judgment was not entered until November 22, 2000. “It is the latter date which is relevant for the calculation.” (Citation omitted.) It concluded: “The judgment of the district court is MODIFIED to reflect a prejudgment interest rate of 8.47% on the judgment of backpay, running through the date of judgment, November 22, 2000.” Id.

M. Compensatory Damages

 

Gagliardo v. Connaught Laboratories, Inc. , 311 F.3d 565,

570–71, 13 AD Cases 1345 (3rd Cir. 2002), affirmed the judgment on a jury verdict for the ADA and Pennsylvania-law plaintiff in the amount of $450,000 in economic damages, and $1.55 million in compensatory damages for emotional distress. See the discussion of this case below. The court affirmed the denial of remittitur:

To recover emotional damages a plaintiff must show

“a reasonable probability rather than a mere possibility that damages due to emotional distress were in fact incurred [as a result of an unlawful act].” . . . . The district court found this standard to be met because Gagliardo produced evidence from her co-workers and family demonstrating the effects her problems with CLI had on her life. This testimony tied Gagliardo’s pain and suffering to her early employment problems after she was diagnosed with MS and detailed their subsequent worsening effect on her life. The testimony demonstrated the effects of the mental trauma, transforming Gagliardo from a happy and confident person to one who was withdrawn and indecisive. Because this evidence establishes a reasonable probability that Gagliardo incurred the emotional damages, we hold that the trial court did not abuse its discretion by allowing the jury’s verdict to stand. . . . Therefore, we affirm the district court’s denial of CLI’s motion for a new trial. In addition, in light of this evidence we also hold the trial court did not abuse its discretion in finding the jury’s verdict is not so excessive as to be unsupportable or offend the conscience of the court, and therefore denying remittitur.

N. Punitive Damages

 

1. Entitlement Where No Compensatory or Nominal
Damages Are Awarded

 

Corti v. Storage Technology Corp. , 304 F.3d 336, 341–43,

89 FEP Cases 1477 (4th Cir. 2002), affirmed the judgment on a Title VII RIF jury verdict for $100,000 in punitive damages, back pay, and prejudgment interest. The court held that punitive damages may be awarded for a Title VII violation even without an award of compensatory damages, where actual harm is shown by the award of back pay. The court explained:

Unlike compensatory damages at common law,
compensatory damages under §1981a are defined to omit back pay, which is “the most obvious economic damage in a wrongful discharge case.” . . . The omission occurs under the 1991 Act to prevent double recovery. . . . For this reason, the court instructed the jury that “[i]n calculating damages, you may not consider any wages or benefits that Ms. Corti may have lost. The award of lost pay or benefits should you find StorageTek liable, will be determined by the Court.” . . . We believe that the award of back pay clearly establishes that Corti suffered injury. [FN12] Because back pay awards serve a similar purpose as compensatory damage awards, the “familiar tort mantra” that punitive damages may not be assessed in the absence of compensatory damages will not aid StorageTek in this case. . . . [FN13]. In Title VII cases, a jury’s punitive damage award will stand even in the absence of compensatory damages if back pay has been awarded.

 

FN12. StorageTek has not offered, nor can we find,
any reason to disallow punitive damages merely because the court, not the jury, is responsible for awarding back pay under the statutory scheme.

 

FN13. After Hennessy, the Seventh Circuit went
further,holding that a punitive damage award survives even without an award of back pay. See Timm v. Progressive Steel Treating, Inc., 137 F.3d 1008, 1010 (7th Cir. 1998); see also Cush-Crawford v. Adchem Corp., 271 F.3d 352, 357 (2d Cir. 2001). Because back pay was awarded in the case at hand, we need not reach this question today.

Id. at 342–43. Judge Niemayer concurred. Id. at 343–45

Salitros v. Chrysler Corp. , 306 F.3d 562, 569, 13 AD Cases

1057 (8th Cir. 2002), affirmed the judgment for $100,000 in punitive damages for the ADA retaliation plaintiff where no back pay or compensatory damages were awarded. The court held that the award of front pay served the same function as an award of compensatory damages, in terms of demonstrating injury, and was sufficient to support the punitive-damage award.

Juarez v. ACS Government Solutions Group, Inc., 314 F.3d

1243, 90 FEP Cases 1104 (10th Cir. 2003), affirmed the judgment for the plaintiff in the amounts of $22,500 in back pay and $250,000 in punitive damages for racial and national origin discrimination in a RIF.

2. Entitlement Where Defendant Has Tried to Cover
Up Its Acts

 

Fine v. Ryan International Airlines , 305 F.3d 746, 755,

89 FEP Cases 1543 (7th Cir. 2002), affirmed the judgment on a jury verdict for the Title VII retaliation plaintiff. The court held that plaintiff was entitled to the reduced $300,000 judgment for compensatory and punitive damages, reduced from the jury award of $6,000 in compensatory damages and $3.5 million in punitive damages. The court explained plaintiff’s entitlement:

There is more than sufficient evidence here to sustain
the adjusted award of punitive damages. Ryan had an antidiscrimination policy of which all its managers were aware. That policy required employees to refer complaints of discrimination by supervisors to McGoldrick for investigation. McGoldrick, however, did not play her assigned role. Instead of investigating Fine’s accusations, she immediately turned Fine’s letter over to Looney. In addition, McGoldrick’s letter to Fine openly indicated that she was terminated for writing the October 2 letter, but Looney recorded in her personnel file that she was terminated for poor attendance and interpersonal skills. The jury obviously found the latter explanation to be pretextual, which permitted it to infer that Looney was aware that terminating Fine for her report of sex discrimination violated federal law. And there is no argument here that Looney was acting contrary to company policy or outside the bounds of his authority, as President Ron Ryan himself concurred with Looney’s decision to fire Fine.

 

Juarez v. ACS Government Solutions Group, Inc., 314 F.3d

1243, 90 FEP Cases 1104 (10th Cir. 2003), affirmed the judgment for the plaintiff in the amounts of $22,500 in back pay and $250,000 in punitive damages for racial and national origin discrimination in a RIF. The court relied heavily on comparative evidence and evidence of bias against Mexicans by Mr. Nesmith. The court stated:

Applying these standards, we hold that Appellee presented sufficient evidence that ACS terminated Appellee despite a recognized risk of violating Title VII. Appellee presented evidence that Mr. Nesmith and other supervisory employees had received some EEO training and that Mr. Nesmith was the Equal Employment Opportunity Officer at the Fort Sill site. In conjunction, Appellee presented evidence that could lead the jury to conclude that Mr. Nesmith was involved in the RIF decision.

Id. at 1246. The court continued:

In addition, Appellee presented evidence of cover-up after the discriminatory action. Appellee introduced evidence that the Human Resources Department actively participated with management-level employees to cover up the discriminatory discharge of Appellee by giving a false reason for his discharge. Even though cover-up after the fact does not necessarily import previous evil intent, in the instant case, the jury could infer that the cover- up was planned prior to the discriminatory discharge.

 

Based on the evidence presented, the jury could
determine that the merit spreadsheet was used merely in an attempt to justify the termination of certain individuals. Even though eight categories were supplied by Human Resources, ACS chose to use only six of those categories in rating employees. . . . The two categories supposedly not used in the RIF decision were tenure and past performance evaluation score. The jury could infer that these categories were intentionally excluded in an attempt to justify terminating Appellee.

 

Appellee also presented proof that ACS’s Human
Resources Department failed to provide more detailed instructions and guidelines in the RIF or to review and monitor the RIF selection process. The totality of the evidence allowed the jury to determine “that the defendant acted with malicious, willful or gross disregard of a plaintiff’s rights over and above intentional discrimination.”

Id. at 1247.

3. Entitlement Where Employer Refused
Accommodation
Gagliardo v. Connaught Laboratories, Inc. , 311 F.3d 565

, 570–71, 13 AD Cases 1345 (3rd Cir. 2002), affirmed the judgment on a jury verdict for the ADA plaintiff in the amount of $300,000 in punitive damages, holding that the defendant’s failure to provide a reasonable accommodation for the plaintiff justified the award. The court stated:

As the trial court concluded, Gagliardo produced
sufficient evidence of CLI’s reckless indifference toward her statutory disability rights. Gagliardo presented evidence that CLI—through its employees—was aware she had MS. For example, Gagliardo produced evidence that her last supervisor, Judith Stout, and CLI’s human resources representative, Christine Kirby, discussed Gagliardo’s MS prior to Gagliardo’s dismissal. Gagliardo also produced evidence that Stout requested information concerning MS. She also offered evidence that she advised CLI of the limitations her condition imposed on her ability to perform her job and that a high level CLI employee—herself an MS sufferer—counseled Gagliardo regarding the impact of the disease. In addition, Gagliardo produced evidence that she had requested accommodation on multiple occasions and that CLI refused to act on any of those requests. Finally, Gagliardo demonstrated that CLI was aware of her federal disability rights, as Christine Kirby testified she was familiar with the ADA and responsible for ensuring CLI followed the ADA. In sum, there was sufficient evidence to support the jury’s award of punitive damages.

Id. at 573.

4. Other Questions of EntitlementSalitros v. Chrysler Corp. , 306 F.3d 562, 569, 13 AD

Cases 1057 (8th Cir. 2002), affirmed the judgment for the ADA retaliation plaintiff and found that plaintiff had shown an adequate basis for the award of $100,000 in punitive damages:

Chrysler’s manager Richard Haynes was quoted as saying he was going to teach Salitros a lesson, in circumstances that support the inference that the lesson to be learned was either not to file EEOC charges or not to protest work assignments that he thought exceeded his medical restrictions. Haynes testified that he had received training on the Americans With Disabilities Act. A jury could conclude that Haynes acted in reckless indifference to whether he was violating Salitros’s federally protected rights. Haynes’s malice may be imputed to Chrysler because he was serving in a managerial capacity and acting in the scope of his employment.

(Citations omitted.)

5. Good-Faith DefenseHatley v. Hilton Hotels Corp. , 308 F.3d 473, 477, 89 FEP

Cases 1861 (5th Cir. 2002), reversed the grant of judgment as a matter of law on plaintiffs’ Title VII sexual harassment claims but affirmed the denial of punitive damages. The court held that, notwithstanding the inadequacy of the defendant’s handling of plaintiffs’ internal harassment complaints and earlier complaints filed by others, the defendant made out its affirmative defense:

Davidson was arguably an agent in a managerial capacity, and she may have acted with malice or reckless indifference to the rights of the plaintiffs within the scope of her employment. However, these actions were contrary to Bally’s good faith effort to prevent sexual harassment in the workplace, as is evidenced by the fact that Bally’s had a well-publicized policy forbidding sexual harassment, gave training on sexual harassment to new employees, established a grievance procedure for sexual harassment complaints, and initiated an investigation of the plaintiffs’ complaints. These actions evidence a good faith effort on the part of Bally’s to prevent and punish sexual harassment.

 

6. AmountFine v. Ryan International Airlines , 305 F.3d 746, 755–56,

89 FEP Cases 1543 (7th Cir. 2002), affirmed the judgment on a jury verdict for the Title VII retaliation plaintiff. The court held that plaintiff was entitled to the reduced $300,000 judgment for compensatory and punitive damages, reduced from the jury award of $6,000 in compensatory damages and $3.5 million in punitive damages. The court explained its approval of the amount:

Ryan’s protestations notwithstanding, there was
more than enough evidence for the jury to find its conduct sufficiently egregious to justify the maximum legally possible punitive damages award. Indeed, that is what the jury’s very high monetary assessment signaled. (It is therefore not necessary for us to consider whether punitive damages awards that must be adjusted because of the statutory cap should simply be lopped off at the maximum, or if they should be reduced to a number less than or equal to the statutory cap based on a proportional assessment of culpability.) This was not a case where there was a “smidgin” of retaliation, such as a temporary suspension or minor loss of pay. Instead, Ryan, having recently informed its female pilots to put complaints of sexual harassment and discrimination in writing, terminated Fine within 24 hours of its receipt of her complaint on these subjects precisely because she had written the letter. Nor can Ryan credibly argue that its actions were the result of a rogue supervisor, since its general counsel and the president of the company both concurred in the decision. To accept Ryan’s position here we would essentially have to hold that the statutory maximum for punitive damages could never be awarded in a Title VII complaint where the plaintiff prevailed only on her retaliation claim. We see no evidence that Congress sought to enact such a rule, and we decline to endorse it. The damages award is affirmed.

 

Juarez v. ACS Government Solutions Group, Inc., 314 F.3d

1243, 90 FEP Cases 1104 (10th Cir. 2003), affirmed the judgment for the plaintiff in the amounts of $22,500 in back pay and $250,000 in punitive damages for racial and national origin discrimination in a RIF.

O. The Damages Caps in the 1991 ActGagliardo v. Connaught Laboratories, Inc. , 311 F.3d 565,

570–71, 13 AD Cases 1345 (3rd Cir. 2002), affirmed the judgment on a jury verdict for the ADA plaintiff in the amount of $2.3 million in compensatory and punitive damages, unapportioned as between the State and Federal claims. Plaintiff had a virtually identical claim under Pennsylvania law, which allows uncapped compensatory damages but not punitive damages. The court affirmed the allocation of the punitive damages to the ADA claim, its reduction to $300,000, and the allocation of all $450,000 in economic damages, and all $1.55 million in compensatory damages for emotional distress to the State-law claim. The court explained:

Importantly, the ADA also contains such a prohibition: “Nothing in this chapter shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State . . . that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter.” 42 U.S.C. § 12201(b) (2000). Here, the PHRA, with its similar language and applicability, clearly provides a cause of action nearly identical to that of the ADA. The fact that the PHRA does not contain a damages cap further indicates that it was intended to provide a remedy beyond its federal counterpart, the ADA. As the courts in Passantino and Martini recognized, subjecting such state law claims to the federal cap would effectively limit a state’s ability to provide for greater recovery than allowed under the corresponding federal law. Passantino, 212 F.3d at 510; Martini, 178 F.3d at 1349–50. Imposing such a limitation would violate the federal law’s prohibition on limiting state remedies. Id.

The court further upheld the apportionment of damages between the Federal and State claims:

In this case, given the similarity of the claims and the jury’s unapportioned award of damages, it is reasonable to infer that the jury intended to award its entire verdict to Gagliardo. Because there is no cap under the PHRA, it was entirely reasonable for the trial court to apportion the damages so as to allow Gagliardo to recover the entire jury award, as reduced by the district court.

Id. at 571. The court distinguished situations in which a plaintiff sues for the same conduct under multiple Federal statutes. Id.

P. Fees and Expenses

 

Mathur v. Board of Trustees of Southern Illinois University ,

317 F.3d 738, 90 FEP Cases 1537 ( 7th Cir. 2003), reversed the fee award for two of plaintiffs’ attorneys because the lower court erred in using Southern Illinois local rates for their time instead of the Chicago rates they customarily charged. The court held that the out-of-town attorney’s rate is presumptively the rate that should be used, unless there is evidence that local attorneys were able to perform as well as visiting counsel and there was no reason why local counsel should not have been engaged.

Fine v. Ryan International Airlines , 305 F.3d 746, 756–57,

89 FEP Cases 1543 (7th Cir. 2002), affirmed the judgment on a jury verdict for the Title VII retaliation plaintiff, and denied plaintiff’s cross-appeal from a 10% reduction in the lodestar for failure to prevail on the discrimination claim. The court observed that the plaintiff was fully successful, in that because of the cap on damages she received as much relief as she would have been able to receive if she had prevailed on the discrimination claim. The court held that the reduction might have been based on the lower court’s view that plaintiff’s counsel wasted some time pursuing less promising theories of recovery, and that such a view would not be an abuse of discretion.

EEOC v. Bd. of Regents of University of Wisconsin System ,

288 F.3d 296, 302, 88 FEP Cases 1133 ( 7th Cir. 2002), affirmed the judgment for the EEOC. The court affirmed the award of witness fees for the charging parties, holding that the EEOC was the only party filing the suit and the charging parties were merely nonparty witnesses for whom the EEOC was seeking relief.

Salitros v. Chrysler Corp. , 306 F.3d 562, 576–77, 13 AD

Cases 1057 (8th Cir. 2002), affirmed the judgment for the ADA retaliation plaintiff for $445,516 in front pay, “representing seven years worth of wages and benefits, up to September 8, 2007, Salitros’s anticipated retirement date.” The court affirmed the fee award, holding that plaintiff was entitled to fees because she recovered on her retaliation claim, even if she lost of, and rejecting the defendant’s contention that the award should be cut because of issues on which plaintiff did not prevail. “The magistrate judge considered this argument and concluded that the claims shared a common core of facts and therefore the fees should not be reduced for failure to prevail on every theory. Accepting this recommendation was not an abuse of the district court’s discretion.” Id. at 577 (citation omitted).

Staton v. Boeing Co. , 313 F.3d 447, 454–45, 90 FEP

Cases 641 ( 9th Cir. 2002), reversed the grant of final approval to a settlement for several reasons. One reason was the court’s concern about the settlement’s provisions on attorneys’ fees:

The parties negotiated the amount of attorneys’ fees
as part of the settlement between the class and the Company. They included as a term of the proposed decree the amount of attorneys’ fees that class counsel would receive. The action falls under the terms of two fee-shifting statutes. By negotiating fees as an integral part of the settlement rather than applying to the district court to award fees from the fund created, Boeing and class counsel employed a procedure permissible if fees can be justified as statutory fees payable by the defendant.

 

Boeing and class counsel did not, however, seek to
justify the attorneys’ fees on this basis but instead made a hybrid argument: They maintained that the award is an appropriate percentage of a putative “common fund” created by the decree even though common funds, as opposed to statutory fee-shifting agreements, usually do not isolate attorneys’ fees from the class award before an application is made to the court. The district court approved the fee on that common fund basis.

 

The incorporation of an amount of fees calculated
as if there were a common fund as an integral part of the settlement agreement allows too much leeway for lawyers representing a class to spurn a fair, adequate and reasonable settlement for their clients in favor of inflated attorneys’ fees. We hold, therefore, that the parties to a class action may not include in a settlement agreement an amount of attorneys’ fees measured as a percentage of an actual or putative common fund created for the benefit of the class. Instead, in order to obtain fees justified on a common fund basis, the class’s lawyers must ordinarily petition the court for an award of fees, separate from and subsequent to settlement.

 

In order to assess the reasonableness of the
attorneys’ fees awarded by the decree, the district court compared the amount of the fees to the amount of the putative common fund and determined what percentage of this fund the fee amount constituted. This comparison is a permissible procedure when a court is determining the reasonableness of fees taken from a genuine common fund. In conducting the comparison, however, the district court included in the value of the putative common fund the inexact and easily manipulable value of injunctive relief. Such relief should generally be excluded from the value of a common fund when calculating the appropriate attorneys’ fee award, although the fact that counsel obtained injunctive relief in addition to monetary relief for their clients is a relevant circumstance to consider in determining what percentage of the fund is reasonable as fees. We hold further, therefore, that parties may not include an estimated value of injunctive relief in the amount of an actual or putative common fund for purposes of determining an award of attorneys’ fees.

The court held that “there is no preclusion on recovery of common fund fees where a fee-shifting statute applies.” Id. at 476. It cited the following authority:

See Brytus v. Spang & Co., 203 F.3d 238, 246-247
(3d Cir. 2000) (holding that common fund funds can be appropriate in both settled and litigated cases where statutory fees are available); Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998) (approving fees measured by common fund rather than statutory principles where statutory fees were available); Florin v. Nationsbank, 34 F.3d 560, 564 (7th Cir. 1994) (common fund principles “properly control a case which is initiated under a statute with a fee shifting provision, but is settled with the creation of a common fund.”); Skelton v. General Motors Corp., 860 F.2d 250, 256 (7th Cir. 1988) (“[W]hen a settlement fund is created in exchange for release of the defendant’s liability both for damages and for statutory attorneys’ fees, equitable fund principles must govern the court’s award of the attorneys’ fees.”); 1 Mary Francis Derfner and Arthur D. Wolf, Court Awarded Attorney Fees, ¶ 2.05[7] at 2-81 (2001) ( “[T]he mere fact that a fee-shifting statute is implicated in the action does not ensure that fees will be awarded under that statute…. [F]ees may be taxed against the [settlement] fund under the common fund doctrine.” (citing Skelton and Florin )).

Id. at 476 n.18. The court explained the nature of such a recovery: “In contrast to fee-shifting statutes, which enable a prevailing party to recover attorneys’ fees from the vanquished party, the common fund doctrine permits the court to award attorneys’ fees from monetary payments that the prevailing party recovered in the lawsuit. Put another way, in common fund cases, a variant of the usual rule applies and the winning party pays his or her own attorneys’ fees; in fee-shifting cases, the usual rule is rejected and the losing party covers the bill.” Id. at 476–77. The court noted that a risk multiplier is allowed in common-fund fee awards, and stated that the Ninth Circuit has generally determined that a reasonable fee would constitute 25% of a common fund. Id. at 477. It explained the operation of a common-fund recovery in a fee-shifting case:

Application of the common fund doctrine to class
action settlements does not compromise the purposes underlying fee-shifting statutes. In settlement negotiations, the defendant’s determination of the amount it will pay into a common fund will necessarily be informed by the magnitude of its potential liability for fees under the fee-shifting statute, as those fees will have to be paid after successful litigation and could be treated at that point as part of a common fund against which the attorneys’ fees are measured. Conversely, the prevailing party will expect that part of any aggregate fund will go toward attorneys’ fees and so can insist as a condition of settlement that the defendants contribute a higher amount to the settlement than if the defendants were to pay the fees separately under a fee-shifting statute.

Id. at 478 (footnote omitted). However, “if the parties invoke common fund principles, they must follow common fund procedures and standards, designed to protect class members when common fund fees are awarded.” Id. The court elaborated, id. at 481:

We hold, therefore, that in a class action involving both
a statutory fee-shifting provision and an actual or putative common fund, the parties may negotiate and settle the amount of statutory fees along with the merits of the case, as permitted by Evans. In the course of judicial review, the amount of such attorneys’ fees can be approved if they meet the reasonableness standard when measured against statutory fee principles. Alternatively, the parties may negotiate and agree to the value of a common fund (which will ordinarily include an amount representing an estimated hypothetical award of statutory fees) and provide that, subsequently, class counsel will apply to the court for an award from the fund, using common fund fee principles. In those circumstances, the agreement as a whole does not stand or fall on the amount of fees. Instead, after the court determines the reasonable amount of attorneys’ fees, all the remaining value of the fund belongs to the class rather than reverting to the defendant.

Id. at 481. Judge Trott dissented. Id. at 487.

Q. Sanctions

 

Allen v. Chicago Transit Authority , 317 F.3d 696, 702, 90

FEP Cases 1229 (7th Cir. 2003), rejected the defendant’s argument that plaintiff Leonard’s appeal should be dismissed without consideration of the merits because Leonard had not finished paying his $4,000 sanction for having perjured himself in the case. The court held that this was inappropriate because “there has been no determination that Leonard’s continuing failure to pay is willful, which it is not if he simply does not have any money.” The court also rejected defendant’s arguments that the appeal should be dismissed, or none of Leonard’s testimony should be believed, because of the perjury. “It undermines the witness’s testimony; but obviously there are cases, perhaps the majority, in which a witness’s testimony is a compound of truth and falsity. Perjury is a circumstance to be weighed by the jury in determining a witness’s credibility rather than a ground for removing the issue of credibility from the jury by treating the witness’s entire testimony as unworthy of belief.” Id. at 703.

EEOC v. Liberal R-II School District, 314 F.3d 920, 90

FEP Cases 1032 ( 8th Cir. 2002), reversed the grant of summary judgment to the defendant, holding that there was direct evidence of discrimination. See the discussion of this case above. The court also reversed the district court’s award of $47,333 in fees and expenses to the defendant under the Equal Access to Justice Act, because the defendant has not yet prevailed and because the EEOC’s position was, in any event, substantially justified. It did not reach the question whether the EAJA is available to employers who prevail in ADEA cases against the EEOC.

VI. Special Problems Involving State and Local Governmental Employers

A. Eleventh Amendment Immunity

 

1. Title VII’s Anti-Retaliation ProvisionDowning v. Board of Trustees of University of Alabama ,

321 F.3d 1017, 91 FEP Cases 78 (11th Cir. 2003), held that Congress validly abrogated the Eleventh Amendment immunity of the States in providing for the application of § 704 of the Act to the States. “Title VII’s antiretaliation provision encourages victims of discrimination to take on the risks and burdens of complaining to their employers about discrimination in the workplace. We agree with the Eighth Circuit that section 2000e-3(a) passes constitutional muster. See Warren v. Prejean, 301 F.3d 893, 899–900 (8th Cir.2002) .” The court also held that the State could not assert sovereign immunity to a same-sex harassment claim.

2. Family and Medical Leave ActNevada Department of Human Resources v. Hibbs ,

__ U.S. __, __ S. Ct. __, 2003 WL 21210426, 8 WH Cases 2d 1221 (2003), held that the Eleventh Amendment does not bar private suits for monetary relief against State agencies under the FMLA, because the FMLA provision allowing twelve weeks of unpaid leave to care for family members was enacted in part to remedy sex discrimination and sex stereotyping in violation of the Equal Protection Clause. “REHNQUIST, C. J., delivered the opinion of the Court, in which O’CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concurring opinion, in which GINSBURG and BREYER, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment. SCALIA, J., filed a dissenting opinion. KENNEDY, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined.”

3. ADA Title IIThe Supreme Court has granted review in Hason v.

Medical Board of California, 279 F.3d 1167, 12 AD Cases 1313 (9th Cir. 2002), reh’g en banc denied, 294 F.3d 1166, 13 AD Cases 477 (9th Cir. 2002), cert. granted in part, 123 S. Ct. 561, 154 L. Ed. 2d 441 (U.S., Nov. 18, 2002) (No. 02–479). Hason held that the Eleventh Amendment does not bar a Title II ADA claim against a State agency. The case is set for argument on March 25, 2003. However, the petitioner moved on March 3, 2003, to withdraw the petition.

4. WaiverLapides v. Board of Regents of University System of

Georgia, 535 U.S. 613, 122 S. Ct. 1640, 18 IER Cases 961 (2002), held that the defendant waived its Eleventh Amendment immunity to suit in Federal court by removing the case from State court, where the State had previously by statute waived sovereign immunity. The Court limited its holding to State-law claims in States as to which the State had waived immunity from State-court proceedings.

Rhode Island Department of Environmental Management

v. United States, 304 F.3d 31, 48–51 (1st Cir. 2002), rejected a broad reading of Lapides and held that a State did not waive its Eleventh Amendment immunity by participating in a Federal administrative hearing or by seeking nonstatutory review of the administrative decision in a Federal district court, where the State had not waived sovereign immunity to suit in its own courts.

5. EEOC’s and DOJ’s Ability to Sue a State Under the
ADA and ADEA

 

United States v. Mississippi Department of Public Safety,

321 F.3d 495, 499, 13 AD Cases 1706 (5th Cir. 2003), relied on EEOC v. Waffle House in holding that the Justice Department may sue a State agency under the ADA for damages for a rejected job applicant.

EEOC v. Bd. of Regents of University of Wisconsin System ,

288 F.3d 296, 300–01, 88 FEP Cases 1133 ( 7th Cir. 2002), relied on EEOC v. Waffle House in holding that the EEOC sues as the sovereign, and does not stand in the shoes of the charging party when suing a State agency. It held that the Eleventh Amendment is therefore no bar to the EEOC’s suit for back pay under the ADEA.

B. First AmendmentRossignol v. Voorhaar , 316 F.3d 516 (4th Cir. 2003),

reversed the grant of summary judgment to the First Amendment plaintiff, holding that plaintiff stated a claim in alleging that the defendant Sheriff assigned defendant deputies to buy up the press run of the edition of plaintiff’s newspaper the night before a local election, where the paper was critical of the Sheriff and deputies.

C. Qualified ImmunityHawkins v. Holloway , 316 F.3d 777, 19 IER Cases 897

(8th Cir. 2003), affirmed the denial of qualified immunity to the defendant Sheriff on plaintiffs’ claims that he deprived them of substantive due process by repeatedly pointing loaded guns at them and threatening to shoot them. The court stated: “In viewing the facts in their favor, we must reject the sheriff’s perception of his gun-slinging incidents as jovial horseplay among colleagues.” Id. at 787. The court held that the sheriff was entitled to qualified immunity as to the claims of officers who merely witnessed the Sheriff point guns at other officers. The court also affirmed the denial of qualified immunity as to those sexual harassment claims involving the denial of plaintiffs’ substantive due process right of bodily integrity, and reversed the denial of qualified immunity as to the other sexual harassment claims.

VII. Special Problems with the Federal Government as Employer

Trout v. Secretary of Navy , 317 F.3d 286, 91 FEP Cases

187 (D.C. Cir. 2003), held that prejudgment interest, authorized by § 114(2) of the Civil Rights Act of 1991, cannot be awarded with respect to conduct that occurred before the effective date of the Act.

Timmons v. White, 314 F.3d 1229, 1234, 13 AD Cases

1633 ( 10th Cir. 2003), affirmed the grant of summary judgment to the defendant Federal agency. The EEOC had ruled in favor of the plaintiff, and had awarded relief the plaintiff considered inadequate. He filed suit, moved for partial summary judgment on liability, and sought additional relief. The court held that a plaintiff who brings a civil action under § 717 of Title VII cannot limit the issues to be accorded de novo treatment, and the defendant is thereafter not bound by the prior adverse administrative ruling. The court held that an action to enforce an EEOC decision does not open up the case to de novo review, and the government will remain bound by the adverse administrative decision in an enforcement action.