Another Victory for Working Moms

I love the decision of Gerving v. Opbiz, LLC which was decided by the Ninth Circuit a few days ago. Thanks to mmmglawblog for pointing it out.

It’s a great example of  “caregiver discrimination” about which the EEOC issued a report just last week (I wrote about it : Read Carefully to Avoid Caregiver Discrimination), and it's a case in which the caregiver wins.

The case also has a very clear analysis of what kind of evidence allows a plaintiff to get to a jury in a typical gender discrimination case.  

Here’s what happened in the case.

Karen Gerving worked as a sales manager for Opbiz (Alladin Resort and Casino) until she was fired by her supervisor, Jim Lauster.

Gerving filed a lawsuit alleging gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964.

Gerving’s evidence showed that after she became a stepmother, Lauster:

  • began to give her poor performance reviews
  • told her that working mothers should stay at home
  • told her that she would have to choose between being a mother and a sales manager
  • made similar discriminatory remarks to a pregnant co-worker
  • treated  Gerving differently than a male co-worker when she was reprimanded for making calls to her children while he was not

Because of the discriminatory treatment, Gerving complained to the Human Resource Deparatment. Two weeks later, an angry Lauster tried to get Gerving fired.

It turned out that Luster wasn’t able to fire Gerving until some months later when new management was in place.

In a typical discrimination case, the plaintiff can establish an inference of discrimination if she can prove:

1)   she belongs to a protected class

2)   she performed her job satisfactorily

3)   she suffered an adverse employment action

4)   she was treated differently than a similarly situated employee who does not belong to the protected class

Once the employee establishes an inference of discrimination – what’s called the prima facie case – the employer is required to "articulate a legitimate, non-discriminatory reason" for it's employment action.

If the employer does that, the employee must prove pretext – meaning that the employee presents evidence that the reason given by the employer is not believable or made-up.

In this case, Alladin said that Gerving was fired because of poor performance and because she used profanity in an argument with a co-worker.

Gerving presented the following evidence of pretext:

1)   her performance reviews were good until she became a stepmother

2)   Lauster tried to fire her shortly after she complained to Human Resources

3)   customer complaints were common

4)   profanity in the workplace was common and not grounds for termination

5)   Lauster began discussing Gerving' termination with new management before the events that were cited as the reasons for her discharge

In spite of all of this evidence, the trial court judge threw out the case and granted summary judgment in favor of Alladin Resort.

The Ninth Circuit Court of Appeals reversed stating:

From this specific evidence, a reasonable jury might conclude that Gerving was terminated in retaliation for complaining about Lauster’s discriminatory comments, and that the termination was motivated by discriminatory animus.

 Accordingly, the order granting summary judgment on Gerving’s gender discrimination and retaliation claims is VACATED and this case is REMANDED for further proceedings.

What this means is that the trial court was wrong when it only gave credit to the employer’s side of the story and either disbelieved or gave no credit to Gerving’s evidence.

What it doesn’t  mean is that Gerving wins her case. What Gerving wins is her right to have her case decided by a jury which is what she in entitled to under the law.

So what’s the big deal? The big deal is that federal courts have been throwing out cases like hers in the same way for years – giving credit to the employer’s side of the story and ignoring the employees’ evidence.

Finally, after almost thirty years,  I am sensing that the summary judgment tide against employees in discrimination cases may be turning. I can hardly believe it but I think it might be true.

This case is but one of many examples of summary judgment reversals I have read about in the last several months. The Circuit Courts of Appeal seem to be sending these erroneous decisions back to the district courts for trials with more frequency than ever.

It’s not that it never happened before – it’s just that it seems to be happening more often, and it’s not just from one circuit. Employees are winning.

It’s too bad it takes so long for the victimized employee to see the light of day. Appeals delay the opportunity to get a case in front of a jury for years.

Let’s hope the federal district court bench gets the message and gives the plaintiff her day in court the first time around. We’ll be watching.


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