American Trial Lawyers Association
2006 Annual Convention,
Seattle, Washington
July 17, 2006

Employment Discrimination Law Update

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.
I.       The Statistics:16,930 new EEO Cases were filed in Federal district courts in the twelve months ending Sept. 30, 2005. The striking figure is that there has been a 30% decline since 1997 in the number of new fair-employment cases filed in Federal district courts.

II.       The Courts Trials in civil and criminal cases are vanishing. According to the Administrative Office of the U.S. Courts, the average US District Judge conducted just 19 civil and criminal trials from Oct. 1, 2003, through Sept. 30, 2004, down from 25 trials in FY 1998. Nineteen trials represented 4% of the average 478 matters terminated. These data were downloaded on September 28, 2005, from http://www.uscourts.gov/cgi-bin/cmsd2004pl.

III.       The Government The Advisory Committee on the Civil Rules is looking at the possibility of changes to Rule 30(b)(6), Fed. R. Civ. Pro.

IV.       Look-Out List for the Supreme Court

Garcetti v. Ceballos, No. 04–473: A deputy district attorney claimed retaliation for having been transferred

after he wrote a memorandum accusing a law enforcement officer of perjury. The issue is what work-related statements by public employees are protected by the First Amendment. ATLA filed an amicus brief in support of plaintiff. Comment: If plaintiff wins, look for a splash-over effect on private employers facing whistleblower complaints, complaints by EEO officials who sided with internal complainants, and the like.

Burlington Northern and Santa Fe Ry. Co. v. White, No. 05–259, will decide the standard for actionable

conduct for a retaliation claim, and specifically whether the EEOC formulation is a correct interpretation of the statute. Prediction: The EEOC standard or something close to it will prevail. The Court has been on a campaign to strike down judge-created artificial barriers to cases reaching juries, and to dismantle artificial blinkers on judges’ approach to evidence. Because standards vary so widely among the Circuits, any decision will be likely to have a kaleidoscopic effect on prior controlling case law.

V.        The Constitution, Statutes, and Rules

A.       The First Amendment and Privatization:Borges Colon v. Roman-Abreu, 438 F.3d 1 (1st Cir.

2006), affirmed the judgment for the First Amendment political-affiliation plaintiffs, holding that there was sufficient evidence that defendants’ privatization of the municipal sanitation department was motivated by discrimination.

B.        The Fourth Amendment: Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197 (10th Cir. 2006),

held defendant liable for the use of police officers in a prank to celebrate the end of plaintiff’s probationary period. The court held that the mock arrest was a seizure, and that the officers staging the mock arrest were not entitled to qualified immunity although they had received assurances from a supervisor that plaintiff would be “okay” with the prank.

C.       The Fourteenth Amendment: (a) “Class of One” Jurisprudence Does Not Apply to Public

Employees with a Plethora of Remedies:Lauth v. McCollum, 424 F.3d 631, 633, 23 IER Cases 859 (7th Cir. 2005) (“It would be a paradox, moreover, to provide federal judicial protection (in the name of equal protection of the laws) for the union activities of a part of the workforce (namely state and municipal employees) that Congress has placed outside the protection of federal labor law.”). (b) Court Affirmed Plaintiff’s Getting SJ on Liability:Wainscott v. Henry, 315 F.3d 844, 852–54, 19 IER Cases 915 (7th Cir. 2003), affirmed the grant of summary judgment on liability to the procedural due process plaintiff. Plaintiff was summoned to a meeting without notice of the subject of the meeting, at the meeting he was handed a sheet of paper telling him he was fired, and was warned by the Mayor that if he attempted to say anything he would be removed by a police officer.

D. 42 U.S.C. § 1981: (a) Seventh Circuit Holds that § 1981 Does Not Cover Retaliation:Hart v. Transit

Management of Racine, Inc., 426 F.3d 863, 866, 96 FEP Cases 1095, 178 LRRM 2324 (7th Cir. 2005) (no meaningful discussion). (b) Ninth Circuit Holds that a Corporation Has Standing to Sue to Redress Ethnic Discrimination Against Employees: Bains LLC v. Arco Products Co. , 405 F.3d 764, 770 (9th Cir. 2005), affirmed the judgment of liability and the award of compensatory damages, but held that $5 million in punitive damages was excessive and that the most that could be allowed was between $300,000 and $450,000. (c) Ninth Circuit Upholds Hostile-Environment Award for Use of “Manny” Instead of “Mamdouh.” El-Hakem v. BJY Inc. , 415 F.3d 1068, 96 FEP Cases 84, 10 WH Cases 2d 1313 (9th Cir. 2005), cert. denied, __ U.S. __, 126 S. Ct. 1470 (2006), held that § 1981 was intended to protect persons from discrimination because of their ancestry or ethnic characteristics, including names. Id. at 1072–73.

E.        Equal Pay Act:Wernsing v. Department of Human Services, 427 F.3d 466, 96 FEP

Cases 1153 (7th Cir. 2005), affirmed the judgment for the Equal Pay Act defendant. The court once again rejected the approach of four other Circuits that employer justifications for differential pay must meet a standard of acceptability, holding that such an approach imports disparate-impact analysis into the Equal Pay Act, where it is unavailable.

F.        Federal Whistleblower Laws: Willy v. Administrative Review Board, 423 F.3d 483, 23 IER

Cases 554 (5th Cir. 2005), reversed the ARB’s dismissal of petitioner’s 1984 whistleblower complaint, and held that the creation of the ARB did not violate the Appointments Clause of the Constitution. Id. at 490–94. Anderson v. United States Department of Labor , 422 F.3d 1155, 1156–57, 23 IER Cases 673 ( 10th Cir. 2005), affirmed the decision of the Appeals Review Board that petitioner lacked standing under environmental whistleblower statutes because she was a member of the Board of Directors of the Denver Metro Wastewater Reclamation District, not an employee.

G.        Title VII of the Civil Rights Act of 1964: (a) Number of Employees is Not Jurisdictional:

Arbaugh v. Y & H Corp., __ U.S. __, 126 S. Ct. 1235, 1245, 97 FEP Cases 737 (2006), reversed the dismissal of plaintiff’s Title VII sexual harassment claim, based on defendant’s post-judgment motion to dismiss. The Court held that the number of employees was simply an element of the claim, and any problem was waived if defendant did not timely contest the allegation that it had 15 or more employees for the requisite amount of time. (b) English-Only Rules:Maldonado v. City of Altus, 433 F.3d 1294, 1304–05, 97 FEP Cases 257, 23 IER Cases 1706 (9th Cir. 2006), reversed the grant of summary judgment to the Title VII defendant on plaintiffs’ claim that defendant’s English-only rule had a disparate impact on Hispanic employees by creating a hostile working environment. “The policy itself, and not just the effect of the policy in evoking hostility by co-workers, may create or contribute to the hostility of the work environment. A policy requiring each employee to wear a badge noting his or her religion, for example, might well engender extreme discomfort in a reasonable employee who belongs to a minority religion, even if no co-worker utters a word on the matter.”

H.        The Age Discrimination in Employment Act: (a) Disparate Impact:Smith v. City of Jackson,

544 U.S. 228, 95 FEP Cases 641 (2005), held in Part III of the opinion that disparate-impact claims may be brought under the ADEA. See the discussion of this case below, in the section on “Disparate Impact.” (b) Mixed Motives:Rachid v. Jack In The Box, Inc., 376 F.3d 305, 313, 93 FEP Cases 1761 (5th Cir. 2004), reversed the grant of summary judgment to the ADEA defendant. The court held that it was not necessary to determine whether a five-year difference in ages was presumptively material, because defendant’s age-related comments showed that the difference was important to defendant. The court also held that Desert Palace applies to ADEA cases. See the discussion of “Mixed Motives” below.

I.        The Americans with Disabilities Act and Rehabilitation Act: (a) “Qualified” Individuals Do

Not Include Employees Who Behave Badly: Hammel v.Eau Galle Cheese Factory , 407 F.3d 852, 16 AD Cases 1185 (7th Cir.), cert. denied, __ U.S. __, 126 S. Ct. 746, 163 L. Ed. 2d 572 (2005), affirmed the judgment after a bench trial for the ADA defendant, holding that plaintiff was not a qualified individual with a disability because his work habits, work aptitudes, work ethic, observance of safety rules, and exercise of common sense, were in the range of appalling to execrable. (b) Accommodations: Hammel v. Eau Galle Cheese Factory , 407 F.3d 852, 16 AD Cases 1185 (7th Cir.), cert. denied, __ U.S. __, 126 S. Ct. 746, 163 L. Ed. 2d 572 (2005), affirmed the judgment after a bench trial for the ADA defendant. The court rejected plaintiff’s expert’s proposed “accommodations” that involved solely adaptive behavior by plaintiff, because these were steps a plaintiff should take without prodding and do not involve changes in the work environment. Id. at 866. The court continued: “In addition, Hammel was an insubordinate, reckless, and thus undesirable employee, and we agree with the trial judge’s conclusion that “[n]o accommodation would make a difference for an employee unwilling to exercise care, accept instruction or take responsibility for getting his work done properly.Id. at 868 (emphasis in original).

J.        Fair Labor Standards Act :IBP, Inc. v. Alvarez, __ U.S. __, 126 S. Ct. 514, 163 L.Ed.2d 288, 10

WH Cases 2d 1825 (2005), clarified the standards for determining the start of compensable work, and compensable activities. The decision was a substantial victory for wage and hour plaintiffs.

K.        Family and Medical Leave Act :Taylor v. Progress Energy, Inc., 415 F.3d 364, 368, 10 WH

Cases 2d 1281 (4th Cir. 2005), reversed the grant of summary judgment to the FMLA defendant, holding that a severance agreement not supervised by a court or by the U.S. Department of Labor is not effective to waive FMLA claims. The court relied on a DOL regulation, 29 C.F.R. § 825.220(d), and recognized a conflict with the Fifth Circuit, but held.

The regulation’s plain language prohibits both the retrospective and prospective waiver or release of an employee’s FMLA rights. In addition, the regulation applies to all FMLA rights, both substantive and proscriptive (the latter preventing discrimination and retaliation). Finally, the DOL, by recognizing that the FMLA’s enforcement scheme is analogous to that of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., has indicated that § 825.220(d) permits the waiver or settlement of FMLA claims only with the prior approval of the DOL or a court.

 

L.        Sarbanes-Oxley : Carnero v. Boston Scientific Corp. , 433 F.3d 1, 23 IER Cases 1505 ( 1st Cir.

2006), affirmed the dismissal of plaintiff’s Sarbanes-Oxley whistleblower claims, holding that the statute does not protect a foreign national complaining of misconduct in a foreign country by foreign subsidiaries of a covered U.S. company.

M.       Uniformed Services Employment and Reemployment Rights Act of 1994: On Dec. 19, 2005,

the Department of Labor promulgated regulations under USERRA. They can be found at 70 Fed. Reg. 75245–75313 (2005), and can be downloaded from the Department of Labor web site at http://www.dol.gov/vets/regs/fedreg/final/2005023961.htm .

V.        The Inferential Model

(a) Useful Jury Discrimination Case:Miller-El v. Dretke, __ U.S. __, 125 S. Ct. 2317 (2005), reversed the

denial of habeas corpus and held that petitioner had shown racial discrimination in the prosecutor’s peremptory challenges by clear and convincing evidence. The court stated: “The rub has been the practical difficulty of ferreting out discrimination in selections discretionary by nature, and choices subject to myriad legitimate influences, whatever the race of the individuals on the panel from which jurors are selected.” Id. at 2324. The Court cited Reeves v. Sanderson Plumbing Products, id. at 2325, underscoring the relevance of this decision to employment law. The Court sharply criticized the Fifth Circuit’s unwillingness to see the discrimination so plainly laid before it. The Court used a “best-fit”analysis: “The strikes correlate with no fact as well as they correlate with race, and they occurred during a selection infected by shuffling and disparate questioning that race explains better than any race-neutral reason advanced by the State.” Id. at 2339–40. It inferred bias from proffering a pretextual reason, and disapproved of judicial efforts to explain problems away: “It would be difficult to credit the State’s new explanation, which reeks of afterthought. While the Court of Appeals tried to bolster it with the observation that no seated juror was in Fields’s position with respect to his brother . . . the court’s readiness to accept the State’s substitute reason ignores not only its pretextual timing but the other reasons rendering it implausible.” Id. at 2328.

(b) After-the-Fact Rationalizations: Springer v. Henry , 435 F.3d 268, 280, 23 IER Cases 1658 (3d Cir.

2006), held that new nondiscriminatory reasons first advanced on appeal were after-the-fact rationalizations irrelevant to the challenged decision. “As the Supreme Court has noted, ‘the court should ask whether the [official] acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed five years after the fact.’ Hunter v. Bryant, 502 U.S. 224, 228, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991).”

(c) The Uses of Employers’ Falsehoods, and Setting Plaintiff Up to Fail:Cross v. New York City Transit

Authority, 417 F.3d 241, 250–51, 96 FEP Cases 239 (2d Cir. 2005), held that the jury could infer discrimination from deliberately false testimony as to material facts. It stated: “This is a case in which the defendants’ discredited testimony at trial as to the means employed to achieve the discriminatory demotion—discriminatory training—itself strengthened plaintiffs’ case.” Id. at 251.

VI.        Disparate Impact

(a) Disparate Impact Creating a Hostile Working Environment:Maldonado v. City of Altus, 433 F.3d

1294, 1304–05, 97 FEP Cases 257, 23 IER Cases 1706 (9th Cir. 2006), reversed the grant of summary judgment to the Title VII defendant on plaintiffs’ claim that defendant’s English-only rule had a disparate impact on Hispanic employees by creating a hostile environment.

(b) Disparate Impact of Subjective Interviewing Practices:Anderson v. Westinghouse Savannah River

Co., 406 F.3d 248, 95 FEP Cases 1121 (4th Cir.), reh’g en banc denied, 418 F.3d 393 (4th Cir. 2005), cert. denied, __ U.S. __, __ S. Ct. __, 2006 WL 452484, 74 USLW 3309, 97 FEP Cases 832 (U.S. Feb. 27, 2006) (No. 05–616), affirmed the grant of summary judgment to the Title VII defendant, adopting a standard of causation in subjective-practice cases that virtually precludes such litigation by requiring that plaintiffs account for all of the subjective variables in a subjective decision—“presentation in the interview, answers to interview questions, demeanor, and ability demonstrated in the interview”—and that plaintiffs must satisfy the prima facie case requirements under the inferential model, and that plaintiffs must show pretext as to the subjective factors whenever the decisionmakers are told to refer to a list of factors in making their decisions.

(c) EPLI and Disparate-Impact Claims:Coleman v. School Bd. of Richland Parish, 418 F.3d 511 (5th

Cir. 2005), held that defendant’s EPLI policy, which excluded intentional actions but covered racial discrimination, must be construed under Louisiana law to cover disparate-impact discrimination.

(d) Less Discriminatory Alternatives:International Bhd. of Elec. Workers, AFL-CIO, Local Unions Nos.

605 & 985 v. Mississippi Power & Light Co., __ F.3d __, 2006 WL 508327 (5th Cir. March 2, 2006), reversed the judgment after a bench trial for the Title VII plaintiffs, and entered judgment for defendant. Plaintiffs challenged only the increase in the cut score on the Edison Electric Institute’s Clerical Aptitude Battery test, and did not challenge the test otherwise. The court held that that the lower court erred in placing on defendant the burden of showing the absence of a less discriminatory alternative, and held that plaintiffs had the burden of demonstrating the existence of a less discriminatory alternative.

(e) Desperate Impact: There are a growing number of cases in which managers or their employers have

tried to conceal an unlawfully biased decision by concocting an ostensibly neutral evaluation system or standard, that was rigged to produce the desired result. Plaintiffs’ attorneys should look for evidence that the “neutral” system is only a Potemkin village. The reward is compensatory damages, and a clear shot at significant punitive damages.

VII. Retaliation

(a) Retaliatory Harassment: Jensen v. Potter, 435 F.3d 444, 97 FEP Cases 555 (3d Cir. 2006) (Alito, J.),

reversed the grant of summary judgment to the Title VII retaliation defendant U.S. Postal Service. The court held that co-worker harassment can constitute an actionable form of retaliation, and defined the elements of such a claim: “Thus, Jensen must prove that (1) she suffered intentional discrimination because of her protected activity; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected her; (4) it would have detrimentally affected a reasonable person in like circumstances; and (5) a basis for employer liability is present.” Id. (citations and footnotes omitted). The court held that the focus must not be on specific incidents in isolation, but on “‘the overall scenario.’” Id. at 450.

(b) Determinations of Actionable Conduct:Rochon v. Gonzales, 438 F.3d 1211 (D.C. Cir. 2006),

reversed the dismissal of plaintiff’s Title VII retaliation claim and held that actionable retaliation is not limited to work-related actions: “We therefore agree with several other circuits that in order to support a claim of retaliation a plaintiff must demonstrate the ‘employer’s challenged action would have been material to a reasonable employee,’ which in this context means it well might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” (Citations omitted.) Jensen v. Potter, 435 F.3d 444, 97 FEP Cases 555 (3d Cir. 2006) (Alito, J.), reversed the grant of summary judgment to the Title VII retaliation defendant U.S. Postal Service, but stated that it is particularly important in cases of alleged retaliatory harassment to distinguish between the inevitable strain caused by whistleblowing and actionable conduct. “When one employee makes a charge under Title VII against another, some strain on workplace relationships is inevitable. . . . Sides will be chosen, lines will be drawn, and those who were once the whistleblower’s friends may not be so friendly anymore. . . . But what the statute proscribes is retaliation, not loyalty to an accused coworker or a desire to avoid entanglement in workplace controversy.” Id. at 451 (citations omitted). The court stated: “A cold shoulder can be hurtful, but it is not harassment.” Id. (citation omitted). “ Nonetheless, the record contains evidence of harassment that a jury might well find severe or pervasive. First, Sickler berated Jensen with retaliatory insults two to three times per week for 19 months, and the significance of these remarks lies in their pounding regularity. . . . Second, the record contains evidence of more than just insults. Jensen also testified to an unspecified number of physical threats by Ed Jones and at least four instances of property damage to her vehicle. These incidents’ severity and the insults’ frequency combine to raise a material question of fact as to whether retaliatory harassment “permeated” the workplace and changed the terms or conditions of Jensen’s employment. Id. (citation omitted).

(c) Causation:Jensen v. Potter, 435 F.3d 444, 450–51, 97 FEP Cases 555 (3d Cir. 2006) (Alito, J.),

reversed the grant of summary judgment to the Title VII retaliation defendant U.S. Postal Service. Plaintiff was assigned to the unit formerly headed by the supervisor who was fired after he sexually propositioned her and she complained of it. The employees in the area began to harass her by a variety of means, including threats, vandalism to her car, obnoxious statements, and physically intimidating behavior. She complained repeatedly and her supervisors took no action for nineteen months. The court relied on the context of the co-worker harassment to establish the causal link between her complaint and their actions, including intervening conduct that bridged the gap between plaintiff’s complaint and the discharge. Kasper v. Federated Mutual Insurance Co. , 425 F.3d 496, 503–04, 96 FEP Cases 961 (8th Cir. 2005), held that plaintiff could not show a causal connection between her protected activity of filing an internal complaint and her termination a year later. “Although not dispositive, the length of time between Kasper’s protected activity and her discharge further weakens Kasper’s claim of causation.” Id. at 503 (citation omitted). The court also relied on the fact that plaintiff’s second-level manager raised important concerns about plaintiff’s skills and competence, and suggested she might need to be moved to another job, prior to her complaint. It stated: “Evidence of an employer’s concerns about an employee’s performance before the employee’s protected activity undercuts a finding of causation.” Id. at 504 (citation omitted).

(d) Inexplicable decision:Laber v. Harvey, 438 F.3d 404, 97 FEP Cases 846 (4th Cir. 2006) (en banc),

affirmed the grant of summary judgment to the U.S. Department of the Army, holding that plaintiff could not establish his prima facie case because the decisionmaker did not know of plaintiff’s prior EEO activity until after he had made the decision. Comment: This ruling is difficult to defend: The court’s own statement of facts shows that plaintiff’s evidence established such knowledge. Judge Wilkinson concurred. Id. at 432–33. Judge Widener concurred in part and dissented in part. Id. at 433. Judge Niemeyer concurred in part and dissented in part. Id. at 433–37.

VIII.        Comparators

Miller-El v. Dretke, __ U.S. __, 125 S. Ct. 2317, 2325–28 (2005), reversed the denial of habeas corpus

and held that petitioner had shown racial discrimination in the prosecutor’s peremptory challenges by clear and convincing evidence. The Court cited Reeves v. Sanderson Plumbing Products, id. at 2325, underscoring the relevance of this decision to employment law. The Court relied heavily on comparators: “More powerful than these bare statistics, however, are side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve.” The Court focused not only on comparisons of the substance of the responses of Fields and of white venire members who were not struck, but also on differences in prosecutor James Nelson’s questioning of Fields, and his questioning of white venire members. The Court rejected the argument that comparators must be identical: “A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters.” Id. at 2329 n.6. Justice Breyer concurred. Id. at 2340–44. Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, dissented. Id. at 2344–63.

Cross v. New York City Transit Authority , 417 F.3d 241, 249–50, 96 FEP Cases 239 (2d Cir. 2005),

affirmed the judgment on a jury verdict for the ADEA plaintiffs. Plaintiffs were Maintainer Helpers who were promoted to Maintainers at union assistance, were denied the necessary manual, equipment, and training to perform their jobs, and were then demoted because of poor performance. The court noted that decades-younger employees were treated much more favorably, and held that this was adequate evidence of discrimination. “As this court has recognized, a showing of disparate treatment is ‘a common and especially effective method of establishing [an] inference of discriminatory intent.’ . . . In this case, plaintiffs did not simply show disparate treatment in demotion; they showed that their demotions were the inevitable consequence of disparate treatment in training. Significantly, defendants did not acknowledge or offer a nondiscriminatory explanation for the training disparity. Instead, throughout trial, they insisted that there was no such disparity.” Id. at 250.

IX.        Comparative Qualifications and Evidence Bearing on Employee Performance

Ash v. Tyson Foods, Inc., __ U.S. __, 126 S. Ct. 1195, 1197–98, 97 FEP Cases 641 (2006) (per curiam),

summarily vacated and remanded the Eleventh Circuit’s affirmance of the grant of summary judgment to the Title VII and § 1981 racial discrimination defendant. The Court rejected the lower court’s holding that evidence of superior qualifications, by itself, was not probative of discrimination unless the superiority was so evident that it jumps off the page and slaps one in the face. The Court explained: “Under this Court’s decisions, qualifications evidence may suffice, at least in some circumstances, to show pretext.” It continued:

The visual image of words jumping off the page to slap you (presumably a court) in the face is
unhelpful and imprecise as an elaboration of the standard for inferring pretext from superior qualifications. Federal courts, including the Court of Appeals for the Eleventh Circuit in a decision it cited here, have articulated various other standards, see, e.g., Cooper, supra, at 732 (noting that “disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question” (internal quotation marks omitted)); Raad v. Fairbanks North Star Borough School Dist., 323 F.3d 1185, 1194 (C.A.9 2003) (holding that qualifications evidence standing alone may establish pretext where the plaintiff’s qualifications are “ ‘clearly superior’ ” to those of the selected job applicant); Aka v. Washington Hospital Center, 156 F.3d 1284, 1294 (C.A. D.C. 1998) (en banc) (concluding the factfinder may infer pretext if “a reasonable employer would have found the plaintiff to be significantly better qualified for the job”), and in this case the Court of Appeals qualified its statement by suggesting that superior qualifications may be probative of pretext when combined with other evidence, see 129 Fed.Appx., at 533. This is not the occasion to define more precisely what standard should govern pretext claims based on superior qualifications. Today’s decision, furthermore, should not be read to hold that petitioners’ evidence necessarily showed pretext. The District Court concluded otherwise. It suffices to say here that some formulation other than the test the Court of Appeals articulated in this case would better ensure that trial courts reach consistent results.

Comment: This continues what has become clear as the Court’s multi-year, multi-decision campaign to root out all the artificial legal presumptions adopted by the courts to make the great summary judgment engine whittle down their civil rights dockets. The more multifaceted evidentiary showings that are possible, the greater is the likelihood that plaintiffs will get their days in court before a jury.

X.        Statistics

Pippin v. Burlington Resources Oil and Gas Co., __ F.3d __, 2006 WL 337586, 97 FEP Cases 745 (10th

Cir. Feb. 14, 2006), affirmed the grant of summary judgment to the ADEA RIF defendant. The court stated at headnotes 7 and 8: “‘Statistical evidence which fails to properly take into account nondiscriminatory explanations does not permit an inference of pretext.’ . . . A ‘plaintiff’s statistical evidence must focus on eliminating nondiscriminatory explanations for the disparate treatment by showing disparate treatment between comparable individuals.’ . . . Statistical evidence that does not adjust ‘for the various performance evaluations and departmental rankings of the employees included in the statistical pool’ does not compare ‘similarly situated’ employees and therefore ‘fails to eliminate nondiscriminatory explanations for disparate treatment.’” (Citations omitted.)

XI.        Discriminatory Statements

Ash v. Tyson Foods, Inc., __ U.S. __, 126 S. Ct. 1195, 1197, 97 FEP Cases 641 (2006) (per curiam),

summarily vacated and remanded the Eleventh Circuit’s affirmance of the grant of summary judgment to the Title VII and § 1981 racial discrimination defendant. Plaintiffs were African-American. The court rejected the lower court’s holding that the decisionmaker’s references to each plaintiff as “boy” were not probative of racial discrimination unless the term was modified by another term, such as a racial reference. “Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage. Insofar as the Court of Appeals held that modifiers or qualifications are necessary in all instances to render the disputed term probative of bias, the court’s decision is erroneous.” Comment: The Court’s insistence on consideration of context will in most cases mean that such remarks must be evaluated by juries.

Miller-El v. Dretke, __ U.S. __, 125 S. Ct. 2317, 2338–39 (2005), reversed the denial of habeas corpus

and held that petitioner had shown racial discrimination in the prosecutor’s peremptory challenges by clear and convincing evidence. The Court cited Reeves v. Sanderson Plumbing Products, id. at 2325, underscoring the relevance of this decision to employment law. The Court relied on evidence of discriminatory statements going back to the 1950’s, evidencing a policy of racial discrimination that was not shown to have ended by the time of petitioner’s trial. The Court also relied on the fact that prosecutors marked the race of each prospective juror on their jury cards. Id. It rejected the State’s argument that this was to ensure there would be no violation of the rule of Batson v. Kentucky, 476 U.S. 79 (1986), because Batson was not decided until a month after Miller-El was tried. Id. at 2339 n.38. The Court sharply criticized the Fifth Circuit’s unwillingness to see the discrimination so plainly laid before it. Id. at 2339–40. The Court relied on evidence of discriminatory statements going back to the 1950’s, evidencing a policy of racial discrimination that was not shown to have ended by the time of petitioner’s trial. Id. at 2338–39. Justice Breyer concurred. Id. at 2340–44. Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, dissented. Id. at 2344–63.

XI.        Harassment

(a) Conduct Neutral in Form : Maldonado v. City of Altus , 433 F.3d 1294, 1304–05, 97 FEP

Cases 257, 23 IER Cases 1706 ( 9th Cir. 2006), reversed the grant of summary judgment to the Title VII defendant on plaintiffs’ claim that defendant’s English-only rule had a disparate impact on Hispanic employees by creating a hostile working environment. See the discussion of this case under “Title VII,” in the section on “English-Only Rules.”

(b)Severe or Pervasive:Arrieta-Colon v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75, 87–88, 17 AD Cases

769 (1st Cir. 2006), affirmed the judgment for the ADA harassment plaintiff on a jury verdict for $76,000 in compensatory damages and $160,000 in punitive damages and held that the lower court did not abuse its discretion in denying defendant’s motion for a new trial where the evidence showed “ constant mockery and harassment that Arrieta was subjected to by fellow co-workers and supervisors alike due to his condition” and that the harassment “was constant and unbearable.” El-Hakem v. BJY Inc., 415 F.3d 1068, 96 FEP Cases 84, 10 WH Cases 2d 1313 (9th Cir. 2005), cert. denied, __ U.S. __, 126 S. Ct. 1470 (2006), affirmed the judgment for the § 1981 and Title VII plaintiff for $15,000 in compensatory damages and $15,000 in punitive damages because of a hostile working environment based on race and national origin. “Despite El-Hakem’s strenuous objections, Young insisted on using the non-Arabic name rather than ‘Mamdouh,’ El-Hakem’s given name. In Young’s expressed view, a ‘Western’ name would increase El-Hakem’s chances for success and would be more acceptable to BJY’s clientele.” Id. at 1071. The court rejected defendant’s argument that the conduct was not severe or pervasive. The lower court held that the conduct would be severe or pervasive to “the reasonable Arab.” Comment: This is an extreme decision, but while it lasts it opens up new possibilities for employees. It is not uncommon for supervisors to insist on using nicknames or terms of address that are offensive to the employee. These are often tied to ethnicity or gender. Many women intensely dislike being called “honey,” “sweetheart,” or “dearie” at work. Many Hispanics dislike being called by ethnic nicknames, or more Hispanic-sounding nicknames. References in nicknames to Greek or Italian ancestry are common.

(c) Employer’s Duty to Prevent Harassment:Arrieta-Colon v. Wal-Mart Puerto Rico, Inc., 434 F.3d

75, 87, 17 AD Cases 769 (1st Cir. 2006), affirmed the judgment for the ADA harassment plaintiff on a jury verdict for $76,000 in compensatory damages and $160,000 in punitive damages. Plaintiff was repeatedly mocked by his supervisors and co-workers because of his appearance after receiving a penile implant. The rejected defendant’s argument that it was prejudiced by the lower court’s refusal to give an instruction on the affirmative defense: “ The court found, in essence, that no reasonable jury could have concluded that either element of the defense had been met. First, the court noted that the open door policy existed on paper, but had not been put into practice. Indeed, when Arrieta complained to the Personnel Department and to several supervisors, no corrective actions were taken and his complaints were not even recorded. Second, the evidence was that Arrieta had reasonably availed himself of the procedures and the company had more than sufficient notice of the problems.” In connection with punitive damages, the court stated: “ On these facts, a jury could easily conclude that the open door policy was a sham designed to give the appearance, but not the reality, of an effort to comply with the law, and that Wal-Mart acted with reckless disregard of Arrieta’s rights.” Id. at 90 (citation omitted).

(d) Employer’s Duty to Cure Any Harassment That Does Occur:Jensen v. Potter, 435 F.3d 444, 97

FEP Cases 555 (3d Cir. 2006) (Alito, J.), reversed the grant of summary judgment to the Title VII retaliation defendant U.S. Postal Service. Plaintiff was assigned to the unit formerly headed by the supervisor who was fired after he sexually propositioned her and she complained of it. The employees in the area began to harass her by a variety of means, including threats, vandalism to her car, obnoxious statements, and physically intimidating behavior. She complained repeatedly and her supervisors took no action for nineteen months. The court held that the delay established the basis for employer liability.

XII.        Arbitration

(a) Severability:Booker v. Robert Half International, Inc., 413 F.3d 77, 95 FEP Cases 1841 (D.C.

Cir. 2005) (Roberts, J.), affirmed the order compelling arbitration of plaintiff’s D.C. Human Rights Act employment dispute despite an improper provision barring punitive damages. The court held that the parties had already agreed, in the agreement, to severance of unenforceable provisions, and held that the offending provision would be severed. The court rejected plaintiff’s argument that his consent is required to waive any provision, and that his lack of consent doomed the agreement; plaintiff’s earlier consent to the severability clause made any waiver unnecessary. Plaintiff argued that using severance as an option gives employers an incentive to overreach. The court recognized that a number of courts have relied on such reasoning to strike down agreements rather than sever offending provisions, and attempted to reconcile the decisions: “The differing results may well reflect not so much a split among the circuits as variety among different arbitration agreements. Decisions striking an arbitration clause entirely often involved agreements without a severability clause . . . or agreements that did not contain merely one readily severable illegal provision, but were instead pervasively infected with illegality . . . . Decisions severing an illegal provision and compelling arbitration, on the other hand, typically considered agreements with a severability clause and discrete unenforceable provisions . . . . Id. at 84–85 (citations omitted).

(b) AAA Commercial Rules: Booker v. Robert Half International, Inc. , 413 F.3d 77, 81–82, 95 FEP

Cases 1841 (D.C. Cir. 2005) (Roberts, J.), affirmed the order compelling arbitration of plaintiff’s D.C. Human Rights Act employment dispute under an agreement specifying that the AAA commercial rules be used: “Although the AAA employment rules specify the discovery mechanisms available in somewhat greater detail than do the commercial rules, both sets of rules leave the decision about which discovery tools to use, and in what manner, to the discretion of the arbitrator. . . . speculation about what might happen in the arbitral forum is plainly insufficient to render the agreement to arbitrate unenforceable.”

(c) California Ethics Standards:Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119, 1121,

22 IER Cases 774 (9th Cir. 2005), held that California’s newly-adopted Ethics Standards for Neutral Arbitrators in Contractual Arbitration could not be applied to NASD arbitrations: “We conclude that the California legislature intended the new ethics standards to apply to NASD-appointed neutral arbitrators. We hold, however, that the Securities and Exchange Act of 1934 (“Exchange Act”), as amended, preempts application of California’s ethics standards to NASD arbitrations. In so holding, we further conclude that NASD rules approved by the Securities and Exchange Commission have preemptive force over conflicting state law.” The court affirmed the injunction barring plaintiff from arbitrating his claims before the AAA.

XIII.        Litigation Issues

(a) Exhaustion:Woodman v. WWOR-TV, Inc., 411 F.3d 69, 95 FEP Cases 1601 (2d Cir. 2005), noted

without comment that the lower court had barred plaintiff’s ADEA disparate-impact claim because of a failure to raise the theory before the EEOC. Comment: Charging parties are usually unrepresented by counsel, and it destroys the purposes of Title VII to require them to advance every possible legal theory in their charges.

(b) Timeliness:Thorn v. Jefferson-Pilot Life Insurance Co., __ F.3d __, 2006 WL 561505 (4th Cir.

March 9, 2006), involved racially discriminatory industrial life insurance policies. The court stated: “We have held that a cause of action accrues under a borrowed statute of limitations ‘either when the plaintiff has [actual] knowledge of his claim or when he [has constructive knowledge of his claim]—e.g., by the knowledge of the fact of injury and who caused it—to make reasonable inquiry and that inquiry would reveal the existence of a colorable claim.” Henderson v. Ford Motor Co. , 403 F.3d 1026, 1032, 95 FEP Cases 970, 16 AD Cases 1025 (8th Cir. 2005), affirmed the grant of summary judgment to the ADA and Minnesota Human Rights Act defendant. The court held that plaintiff’s charge was untimely. It stated: “These causes of action accrue on the date on which the adverse employment action is communicated to the employee. . . . The limitations periods begin to run even if the employee is not aware of the discriminatory effect or the employer’s discriminatory motivation in taking the adverse employment action.” Id. at 1032 (citations omitted). Equitable estoppel “does not apply in this case because Henderson presented no evidence that she was induced not to timely file her ADA claims due to any affirmative actions by Ford.” Id. at 1033. Equitable tolling was unavailable because plaintiff had all the facts she needed to file a charge, and had grown suspicious about possible discrimination, at a time when filing a charge would have been timely. “At this time Henderson may not have had knowledge of all the facts related to the purported discrimination, but she had knowledge of facts that were sufficient to apprise her of the purported discrimination. Certainty is not the standard. ‘[I]f a plaintiff were entitled to have all the time [she] needed to be certain [her] rights had been violated, the statute of limitations would never run—for even after judgment, there is no certainty.’” Id. (citation omitted). Ledbetter v. Goodyear Tire and Rubber Co., Inc., 421 F.3d 1169 (11th Cir. 2005), petition forcert. filed, 74 USLW 3487 (U.S., Feb. 17, 2006) (No. 05–1074), reversed the denial of judgment as a matter of law to the Title VII pay discrimination defendant. The court held that disparate treatment in pay arising under a system of annual reviews is covered by the “discrete acts” holding of Morgan, and accordingly held that the only annual review on which relief could be granted was the review that occurred during or after the 180-day charge-filing period.

(c) Adequacy of Pleading:Rochon v. Gonzales, 438 F.3d 1211, 2006 WL 463116 (D.C. Cir. 2006),

reversed the dismissal of plaintiff’s Title VII retaliation claim and held that plaintiff was required only to plead that he was retaliated against for engaging in protected activity, and was not required to plead facts negating the government’s not-yet-identified defenses.

(d) Title VII Suits for Fees and Costs, or for Additional Relief: The Fourth Circuit previously decided in

Chris v. Tenet, 221 F.3d 648, 652 (4th Cir. 2000), that Title VII does not confer jurisdiction on Federal courts to hear suits involving only claims for attorneys’ fees and costs. In Laber v. Harvey, 438 F.3d 404, 97 FEP Cases 846 (4th Cir. 2006) (en banc), the court rejected defendant’s argument that this holding must be extended to claims for additional relief for an administrative finding of discrimination. The court distinguished Chris because that case involved only the Title VII jurisdictional provision. The plaintiff in Laber cited an additional basis of jurisdiction, 28 U.S.C. § 1331, which the court of appeals had previously held available as an additional basis of jurisdiction for Title VII cases. Judge Wilkinson concurred. Id. at 432–33. Judge Widener concurred in part and dissented in part. Id. at 433. Judge Niemeyer concurred in part and dissented in part. Id. at 433–37.

(e) Claim Preclusion:Wilkes v. Wyoming Department of Employment Division of Labor Standards,

314 F.3d 501, 90 FEP Cases 835 (10th Cir. 2002), cert. denied, 540 U.S. 826 (2003), affirmed the grant of summary judgment to defendant on the ground of claim preclusion, applying the doctrine to causes of action arising from employment with the same employer. Comment: The rules of procedure are supposed to assist in obtaining justice, and the rules of claim preclusion are intended to avoid re-litigation of matters once there has been a fair litigation of them. No purpose is served by the Tenth Circuit’s setting this kind of bear trap for plaintiffs.

(f) Evidence to Be Considered on JMOL:Springer v. Henry, 435 F.3d 268, 281, 23 IER Cases

1658 (3d Cir. 2006), affirmed the judgment on a jury verdict for the First Amendment retaliation plaintiff. Defendant appealed the award of compensatory damages. The court held that the jury was entitled to rely on the calculations of plaintiff’s expert, and that the testimony of defendant’s expert was not to be considered.

XIV.        Remedies

(a) Back Pay: (1) No Causation Found: Voeltz v. Arctic Cat, Inc., 406 F.3d 1047, 16 AD Cases 1208

(8th Cir. 2005), vacated the back pay award on plaintiff’s ADA failure-to-accommodate claim, because there was no evidence that plaintiff lost his job as a result of defendant’s failure to engage further in the interactive process. (2) Unconditional Offers of Reinstatement:Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894 (8th Cir. 2006), affirmed the judgment on a jury verdict to the ADA plaintiff on all issues other than punitive damages. The court rejected defendant’s argument that plaintiff’s back pay should have ended because of its reinstatement letter, citing the district court’s actions with approval: “ The district court also remarked Dr Pepper’s July 30 offer was not an unconditional offer of reinstatement, because the offer was conditioned on Canny arranging his own transportation, making wage concessions, and relocating. The district court further reasoned Dr Pepper failed to engage in discussion with Canny regarding the accommodations of that position.” (3) No Need to Mitigate by Re-Applying to Defendant: Borges Colon v. Roman-Abreu , 438 F.3d 1 (1st Cir. 2006).

(b) Reinstatement Claim Stronger Where Other Plaintiffs Had Trouble Getting New Jobs: Borges

Colon v. Roman-Abreu, 438 F.3d 1, 20 (1st Cir. 2006) (First Amendment political-affiliation plaintiffs).

(c) Liquidated Damages:Cross v. New York City Transit Authority, 417 F.3d 241, 252–57, 96 FEP

Cases 239 (2d Cir. 2005), held that defendant’s status as a public agency did not exempt it from an award of liquidated damages. Id. at 256–57. The court stated: “ The creation of a calculated subterfuge to support an adverse employment action supports an inference that the employer knew or recklessly ignored the fact that their real reason for demoting the plaintiffs—age—was unlawful.” Id. at 253 (citations omitted).

(d) Compensatory Damages:Rodriguez-Marin v. Rivera-Gonzalez, 438 F.3d 72 (1st Cir. 2006),

affirmed the damages awarded by the jury: “The jury awarded Rodríguez back pay of $3,500 per month, $180,000 in compensatory damages, and $120,000 in punitive damages against Dávila. The jury awarded Escobar back pay of $3,306 per month, $105,000 in compensatory damages, and $195,000 in punitive damages against Dávila.” Id. at 79. The court rejected defendants’ argument that the compensatory damages were excessive. The court held: “Given the defendants’ failure to specify the applicable law and their failure to present the facts in the light most favorable to the verdict, this argument is not sufficiently developed and thus waived.” Id. Farfaras v. Citizens Bank and Trust of Chicago , 433 F.3d 558, 565, 97 FEP Cases 391 (7th Cir. 2006), affirmed the judgment on a jury verdict for the Title VII and State-law sex discrimination and sexual harassment plaintiff for $200,000 in compensatory damages and $100,000 in punitive damages against the individual State-law defendants, $50,000 against the corporate Title VII defendant, $9,314.48 in lost wages, and $436,766.75 in attorneys’ fees and costs. The compensatory damages included $100,000 for pain and suffering and $100,000 for the loss of dignity. The court held that the award was not excessive despite the lack of expert testimony, because there was adequate evidence of the effect of defendants’ harassment on plaintiff. The court described the evidence: “Farfaras and other witnesses testified that as a result of the defendants’ actions, Farfaras lost self-esteem, gained weight, had problems sleeping, changed demeanor, and became nervous. Although Farfaras never consulted a medical professional about her unhappiness, Farfaras’s friend Yonia Yonan testified that Farfaras had been ‘very depressed’ beginning early in the year 2000.” Id. at 563. The court held that the award was roughly comparable to awards in similar cases. Mitigation:Arrieta-Colon v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75, 91, 17 AD Cases 769 (1st Cir. 2006), affirmed the judgment for the ADA harassment plaintiff on a jury verdict for $76,000 in compensatory damages and $160,000 in punitive damages. The court relied on plaintiff’s repeated internal complaints in rejecting defendant’s argument that plaintiff failed to mitigate his damages.

(e) Punitive Damages: Entitlement:United States v. Space Hunters, Inc., 429 F.3d 416, 427–28

(2d Cir. 2005), reversed the denial of punitive damages under the Fair Housing Act, holding that there was ample evidence of malice or reckless indifference in defendant’s recidivism, erasing tape recordings of calls, use of vulgarity to drive away disabled applicants, and likelihood of future violations. Springer v. Henry , 435 F.3d 268, 281, 23 IER Cases 1658 (3d Cir. 2006), affirmed the judgment on a jury verdict for the First Amendment retaliation plaintiff. The court held that the requirements for punitive damages are disjunctive, and that plaintiff’s evidence of Henry’s displays of emotion adequately showed that her conduct was callous or malicious, characterized by anger and an adversarial attitude. Le v. University of Pennsylvania, 321 F.3d 403, 407–09, 91 FEP Cases 310 (3d Cir. 2003), affirmed the judgment for plaintiff, and held that punitive damages were appropriately awarded where plaintiff claimed that his supervisor was racially biased and the decisionmaker reassigned the same supervisor to plaintiff after satisfying himself the supervisor was not racist by watching his interactions on the basketball court with a racially diverse team. The court stated: “ The decisionmaking process used by Dr. Palladino could easily have been viewed by the jury as demonstrating ‘reckless indifference’ towards Le’s federally protected rights. Also, there was additional evidence that Le presented a lengthy rebuttal in response to a bad performance review, which was then cursorily handled by the University’s administration. Further, the District Court noted that upon receiving Le’s complaint, and before concluding its investigation, the administration failed to counsel and advise Le’s supervisors and colleagues about the evils of discrimination. In all, sufficient evidence exists to support the jury’s verdict.” Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894 (8th Cir. 2006), reversed the punitive damages award on a jury verdict to the ADA plaintiff where defendant acted based on safety concerns. Bains LLC v. Arco Products Co. , 405 F.3d 764, 774 (9th Cir. 2005), affirmed the judgment of liability and the award of compensatory damages, but held that the award of $5 million in punitive damages to the Sikh-owned plaintiff was excessive and that the most that could be allowed was between $300,000 and $450,000. Evidence:Arrieta-Colon v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75, 90, 17 AD Cases 769 (1st Cir. 2006), affirmed the judgment for the ADA harassment plaintiff on a jury verdict for $76,000 in compensatory damages and $160,000 in punitive damages. The court rejected defendant’s argument that there was no evidence supporting vicarious liability, where plaintiff had repeatedly complained to store-level officials.” Affirmative Defense:Arrieta-Colon v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75, 90, 17 AD Cases 769 (1st Cir. 2006), rejected defendant’s argument that any evidence of good faith bars punitive damages: “ Wal-Mart’s position is wrong and would allow companies to pay lip service to the law while blatantly violating it.” Instructions:Arrieta-Colon v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75, 89–90, 17 AD Cases 769 (1st Cir. 2006), affirmed the judgment for the ADA harassment plaintiff on a jury verdict for $76,000 in compensatory damages and $160,000 in punitive damages. The court held that the following instruction was close enough to Kolstad to be permissible:

In order to find punitive damages, you must find that the acts of the Defendant which proximately
caused actual damages to the Plaintiff were maliciously or wantonly done. If you so find, you may add to the award of actual damages such amount as you shall agree to be proper as punitive damages.

 

An act or failure to act is maliciously done if prompted or accompanied by ill-will, spite or grudge,
either toward the injured person individually or towards all persons in one or more groups or categories of which the injured person is a member. An act or failure to act is wantonly done if done in reckless or callous disregard of, or indifference to the rights of one or more persons, including the injured person.

Amounts After State Farm:Rodriguez-Marin v. Rivera-Gonzalez, 438 F.3d 72, 84 (1st Cir. 2006), affirmed punitive damages of $120,000 for one plaintiff and $195,000 for the other. Id. at 79. The court held that the award was reasonable where plaintiffs were demoted and lost sizeable parts of their income. Farfaras v. Citizens Bank and Trust of Chicago , 433 F.3d 558, 567, 97 FEP Cases 391 (7th Cir. 2006), affirmed the judgment on a jury verdict for the Title VII and State-law sex discrimination and sexual harassment plaintiff for $200,000 in compensatory damages and $100,000 in punitive damages against the individual State-law defendants, $50,000 against the corporate Title VII defendant, $9,314.48 in lost wages, and $436,766.75 in attorneys’ fees and costs. The court rejected defendants’ attack on the punitive-damage award. “The defendants openly boasted of their substantial wealth and indicated their belief that this wealth allowed them to flout the law and harass a young woman. One purpose of punitive damages is to dissuade defendants who are unaffected by compensatory damages from the misapprehension that they are beyond the reach of civil penalties.” The court also relied on the fact that the punitive-damages award was only half of the compensatory-damages award. Bains LLC v. Arco Products Co. , 405 F.3d 764, 770–71 (9th Cir. 2005), affirmed the judgment of liability and the award of $50,000 in compensatory damages for losses caused by breach of contract and $1 in nominal damages for racial discrimination pursuant to the rule that a corporation cannot claim emotional distress damages, but held that the award of $5 million in punitive damages to the Sikh-owned plaintiff was excessive and that the most that could be allowed was between $300,000 and $450,000. The court limited its prior holdings.

XV.        Attorneys’ Fees:Farfaras v. Citizens Bank and Trust of Chicago, 433 F.3d 558, 569, 97 FEP

Cases 391 (7th Cir. 2006), affirmed the award of $436,766.75 in attorneys’ fees and costs. The court rejected defendants’ objections to plaintiff’s counsel’s time records: “Defendants’ counsel claimed before the district court that its billing records were irrelevant. This position is inconsistent with the letter and spirit of Local Rule 54.3. The rule’s purpose is to avoid exactly the type of hypocritical objections presented by the defendants. Although the defendants object to the use of block billing and ‘vague’ descriptions by Farfaras’s counsel, the defendants’ counsel used similarly vague descriptions and block billing. Although ‘block billing’ does not provide the best possible description of attorneys’ fees, it is not a prohibited practice.”

XVI.        Sanctions:Claiborne v. Wisdom, 414 F.3d 715 (7th Cir. 2005), cert. dismissed, __ U.S. __, 126

S. Ct. 12 (2006), affirmed a sanction of $1 against the Fair Housing Act plaintiff, and $107,845.77 against her attorney under 28 U.S.C. § 1927, for unreasonably and vexatiously multiplying the proceedings. Plaintiff voluntarily dismissed her claim with prejudice. The court held that a dismissal with prejudice was an adjudication on the merits, and met the Buckhannon test for a change in the underlying legal relationship. Id. at 720. The court relied on several instances of improper behavior, including failing to respond adequately to discovery requests, failing to make a reasonable inquiry before filing serious allegations with the court, failure to respond adequately to a summary judgment motion, engaging in dilatory tactics, and filing three of her four claims without a basis. Id. at 721–22.