Another VIctory For Working Moms

Gender Stereotyping Constitutes Sex Discrimination

Every once in a while, everything goes right for the employee in a fight to get employment claims heard by a jury. The case of Nancy Falco Chedid, M.D. vs. Children’s Hospital & others is one such example. Here’s what happened in this recent illuminating decision involving the hot issue of caregiver discrimination.

Facts Of The Case

Dr. Nancy Falco Chedid worked at Children’s Hospital and the Boston Plastic and Oral Surgery part time as a plastic surgeon beginning in 2005. At that time, she re-entered her practice after taking six years off for the birth and caretaking of her three children. 

In August of 2006, Chedid’s boss, and Chief of Plastic Surgery, was replaced by Dr. John Meara. Shortly after his arrival Chedid had a meeting with Meara.

At that time, Chedid stated that she worked a reduced hours position and had family responsibilities. Meara expressed displeasure with her part time status and told her that there were certain subspecialties -- like dermatology -- which were more amenable to a part-time arrangement than plastic surgery.

He also said that he wanted to rid the department of plastic surgery of all the “part timers.” According to Chedid, when she asked Meara if he was pushing her out he nodded “yes” and that he did so without getting to know her or her abilities.

Because of her concern regarding Meara’s intention to push her out, Chadid met with the hospital’s Director of the Office of the Faculty Development, Dr. Jean Emans. Part of Emans’ job was to act as a problem solver for faculty with issues related to career advancement.

Emans explained that Children’s had a large number of part-time physicians and that with regard to work and family balance some chiefs “get it” and others do not.  Chedid stated that she would be willing to increase her hours if it meant saving her job.

Chedid sent a letter to Meara on November 8, 2006 and met with him eight days later. They also exchanged e-mails. Chedid made a number of proposals and explained to him how she could fit into his vision for the department. He assured her that he was not pushing her out, but then stated his intention to hire a full time surgeon in 2007, which might mean that Chedid would have to leave. She reiterated her desire to stay including her willingness to work more hours.  Meara again stated that Chedid would not have an indefinite position given his vision and goals for the department. Without Chedid, the department would be all male.

In the months that followed, Chedid continued to address her concern to hospital administrators including the COO and Vice President of Human Resources --- specifically her concern that Meara was pushing her out because she was a woman with childcare responsibilities. They explained that they believed what she was saying, but stated that Meara, as department head, had a right to eliminate part-time positions from the department.

In March or 2007, Emans and Stewart informed Chedid that Meara would only allow her to work through June. Emans explained that Meara wanted someone with special pediatric training in the department and that Chedid should obtain the special training and reapply in the future.  She asked why she had to apply when a co-worker was invited to join the Foundation without an application and another doctor was hired with far less experience. In addition, Chedid, who had pediatric training, offered to work full time.

Stewart became exasperated and angry at Chedid’s offer, but said that she would draft a memo of the meeting and discuss matters with Meara. The memo was never circulated.

On March 23, 2007, Meara informed Chedid that her employment with the Foundation would end on June 30th of that year. After learning that Chedid had been terminated, several of her colleagues circulated a petition to protest the termination.  As stated in the opinion, the record contains not a word of criticism about Dr. Chedid’s abilities as a physician and surgeon.

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Jury Awards $900 Thousand In Age Discrimination Case

I just finished trying an age discrimination case and the good news is that we won. Here's an article published yesterday about the case: 

Jury awards Cleveland woman $900K in age discrimination employment case
 CLEVELAND, OH - A Cleveland jury in the Cuyahoga County Court of Common Wednesday returned a $900,000 verdict in a significant employment discrimination lawsuit brought by a former employee of Cleveland's University Hospitals Case Medical Center. The lawsuit filed by Gloria Parks against University Hospitals alleged that Parks, a medical assistant, was discriminated against because of her age when she was terminated from her job of 30 years in July of 2008.

After a seven-day trial in the courtroom of Judge Carolyn Friedland, the jury found that age was a determining factor in University Hospitals' decision to terminate Ms. Parks' employment. Parks was awarded $450,000 for her economic loss and $450,000 for other compensatory damages.

"We are thrilled that Gloria Parks received the justice that she deserved from the jury", said renowned civil rights lawyer Ellen S. Simon, of counsel with McCarthy, Lebit, Crystal & Liffman, and lead attorney on this case. "Nothing could be better than to see Ms. Parks have the opportunity to be vindicated. What happened to Gloria was tragic and shouldn't happen to anyone."

Parks' lawsuit charged that her termination stemmed from a patient identification incident in July of 2008, involving Parks and a younger co-worker in the pre-admission testing department where they both worked. The mix-up occurred when two patients with the identical name appeared at the department on the same morning to get their blood drawn. UH claimed that Parks failed to follow the proper patient identification policy, but witnesses testified that the policy was not enforced in the department and not properly followed by the employee who checked the patient in that day, pulled the wrong medical chart, and passed it off to Parks. The mistake was discovered and corrected before the patient left the department and the blood work was for both patients was properly processed without any error. Neither patient was harmed. After Parks was fired, the department changed its procedures in the department to require proof of identification at the time of check in with a driver's license.

Parks claimed that Steve Diltz, who became her supervisor five months prior to the incident, had singled her out and treated her differently than her younger coworkers since his assignment to her department. Evidence presented at trial showed that Diltz seized on the identification incident as a means to ensure that Parks was fired, and that his decision to unjustly fire her was supported without question by University Hospitals human resources department as well as Diltz's manager without any independent investigation. The incident resulted in a patient complaint, but the testimony of the patient revealed that it was a third employee involved with the patient -- the department nurse -- not Parks, who had upset the patient on the day in question. The nurse was never disciplined.

Parks' age discrimination claim was supported by the fact that she and the younger co-worker were involved in an identical incident and Parks was fired while the younger co-worker received no discipline whatsoever. The evidence also showed that younger employees made comparable or more serious mistakes with some frequency in the department and received no formal corrective action or discipline, and that no other long term employee had been discharged for a single mistake at UH involving a patient which caused no harm .

Parks, who was 54 at the time of her discharge, and known throughout the hospital as one of the best phlebotomists at UH, had a "Do Not Re-Hire" permanently placed in her personnel file. A day after her termination, Parks was replaced by Diltz with a much younger worker. As a consequence of the firing and the "Do Not Re-Hire" classification, Gloria Parks has since been unable to find permanent employment at any hospitals, and lost her home, as well as her ability to make a living in her field. "I am very pleased with the verdict", said Parks, following the jury's decision. "It's been so hard - I loved my job. I just couldn't believe this was happening to me. Now, I have a chance to make a new start. I am so thankful for my legal team, and my family and friends who stood by me at this difficult time. I thank God for all their support."
 

For more about the case, read theCleveland Plain Dealer Article, here. Needless to say, we're thrilled. More to come about the case when I get a chance to recuperate.

Employee Rights Short Takes: Scalia's Impartiality Questioned, Two Punitive Damage Awards, Disability Discrimination And More

Here are a few employee rights Short Takes worth noting:

Scalia Says Due Process Clause Does Not Prohibit Sex Discrimination

For those who may have missed it, Justice Antonin Scalia recently expressed his view that neither women nor gays are protected against discrimination under the 14th amendment of the Constitution. The statement was made in an interview this month published in the California Lawyer.

While it’s newsworthy because of the shock value alone, Scalia has expressed this view before. All one has to do is read the 1996 decision of  United States v. Virginia,  in which Scalia was the only justice to dissent from the Supreme Court’s decision to end the Virginia Military Institute’s 157 year old state supported practice of only accepting male students.

Not surprisingly, Scalia’s recent remarks angered liberals and was criticized by many legal scholars. Marcia Greenberger, founder and co-President of the Women’s Law Center, as reported in the Huffington Post, called  Scalia’s comments “shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection."

Scalia’s comments stem from his view that the 14th amendment , when written, was not intended to ban sex discrimination. As to Scalia’s originalist view, Eric Segall, a professor at Georgia State College of Law, had this to say in his letter to the editor published in the New York Times:

On issues of affirmative action, gender rights, gun control and campaign finance reform, among most other controversial constitutional law questions, Justice Scalia does not truly use an originalist methodology. Much more of his judicial style can be gleaned from looking at the Republican Party Platform than at the drafters of either the original Constitution or the 14th amendment.

For Justice Scalia, it is about results, not process, no matter how much he protests otherwise.

In the same vein, Scalia also also made news with the announcement of his role as a featured speaker at  Michele Bachmann's tea party / "Constitutional Conservative Caucus" later this month. For more about questions raised regarding Justice Scalia's impartiality, read Nan Aaron here.

EEOC Settles Disability Discrimination Case For 3.2 Million

Jewel –Osco’s parent company Supervalu  Inc. has agreed to pay $3.2 million to settle a federal lawsuit claiming that the company discriminated against its disabled employees.

The suit, filed by the EEOC, alleged that Jewel-Osco fired employees with disabilities at the end of their leaves rather than bringing them back to work with reasonable accommodations.

According to the EEOC, roughly 1000 employees at Jewel-Osco stores were fired under this policy. One employee who will benefit from the settlement is Rosemary Bednarek who is representative of the class.

Bednarek injured her back lifting boxes of chicken at a Jewel-Osco store in 2004. When she was able to return to work, her doctor advised that she should not lift more than 20 pounds but the company would not accommodate the restriction. Bednarek re-injured her back and was fired a year later.

This is a great settlement that will not only benefit the plaintiffs in the case, but also serve to remind employers of their obligations under the Americans with Disabilities Act (ADA) to accommodate employees with disabilities -- including those who are injured on the job.

Two New Decisions On Punitive Damages

We do not often see employment law decisions in which punitive damages are addressed, so to see two in the last few weeks is worth talking about.

Generally speaking, punitive damages are available in some cases in which the defendant engaged in a deliberate or reckless disregard of the rights of others.

The jury, in determining the amount of the punitive damage award, is permitted to consider a number of factors, including a sum of money that would discourage the defendant from engaging in the conduct in the future as well as the income and assets of the defendant. Some large punitive damage awards are challenged on grounds that they violate the Due Process Clause of the Fourteenth Amendment of the Constitution.

Here's a brief synopsis of the cases:

Hamlin v Hampton Lumbar Mills, Inc.:  Plaintiff Ken Hamlin was injured while working at the Hampton Lumbar Mills. When he was released to return to work, the defendant falsely asserting that he was a “safety risk" and refused to to reinstate him as required by Oregon law.

The case went to trial and the jury awarded lost wages of $6000 and punitive damages in the amount of $175, 000. On appeal, the Court of Appeals held that the punitive damage award was "grossly excessive" under the Due Process Clause of the United States Constitution and reduced it to a sum equivalent to four times the amount of the compensatory damages.

In an instructive review of the case law on punitive damages, the Oregon Supreme Court reversed holding that a punitive damage award may exceed a single digit multiplier of a compensatory damage award without violating due process or being “grossly excessive.”

The case is an excellent reference point for anyone briefing an argument for punitive damages in an employment case.

Claus v. Intrigue Hotel, LLC:  In this age discrimination case, the jury awarded $50,000 in actual damages and $150,000 in punitive damages in a bifurcated trial. The defendant appealed. The Court of Appeals affirmed the verdict in a decision issued late last month.

In brief, Glenda Claus worked for Intrigue Hotels (including its predecessor) since 1984. Her last position was housekeeping supervisor. In 2007, Claus was fired and replaced by a 31 year old employee. 

Claus, 63 at the time, testified that she was completely blindsided by the news of her termination. With a record of positive job performance evaluations, a failure to admonish Claus regarding job deficiencies, and replacement with a 31 year old employee with performance issues, the Court of Appeals held that the jury could have rejected Intrigue’s after the fact rationale that Claus was fired for poor performance.

In addition, there was evidence that her new supervisor (Galaviz ) stated he wanted employees who would be at the hotel for the “long haul” and that Claus was “resistant to change.” The Court held that the jury could have reasonably taken these statements to mean that Galaviz did not want older employees and that Claus’s age was a factor in her firing.

The evidence also showed that Galaviz had been engaged as a human resources consultant and had an extensive knowledge of employment law at the time he made these comments and fired Galaviz.

Worth noting is the Court's statement that the same evidence which supported Claus’s substantive claim for age discrimination also supported her claim for punitive damages  As the Court pointed out,  both Copidas (the owner of the hotel) and Galaviz:

  • knew it was against the law to fire an employee because of age
  • fired a 63 year old employee with a spotless record
  • replaced her with a 31 year old with documented performance problems
  • promoted several younger employees with performance issues
  • altered its rationale for firing Claus several times and created pretextual reasons for firing her

In sum, the Court concluded that the jury’s award of punitive damages was supported by the evidence. The case was remanded to the trial court for an award of reasonable attorney’s fees and costs -- a great victory for Claus and her lawyer.

This case is a good example of the kind of evidence which supports a claim for age discrimination as well as a claim for punitive damages. As stated above, since we don't often see decisions affirming a punitive damage award, these cases are worth noting.

images: newsimg.bbc.co.uk  www.pryers-solicitors.co.uk  www.beachvillaresort.com 

Employee Rights Short Takes: Race Discrimination, 5.8 Milllion Dollar Verdict, Breach of Contract Damages And More

Here are a few short takes about some employment cases worth noting this month:

EEOC Files Lawsuit Against Kaplan Higher Education Corp. Claiming Race Discrimination

The EEOC announced last week that it filed a class action race discrimination case against Kaplan Higher Education Corp. The suit alleges that since at least 2008, Kaplan rejected applicants based on their credit history and that this practice has an unlawful discriminatory impact because of race. The EEOC further claims that the practice is neither job-related nor justified by business necessity and therefore violates Title VII of the Civil Rights Act of 1964.

These kinds of discrimination lawsuits are known as “disparate impact” cases and are often the legal foundation upon which class action discrimination cases are premised. The claim arises when an employer’s practice or policy, though neutral on its face, has a disparate impact on a group which is protected under one or more of  the civil rights statutes. For more about disparate impact cases, see here.

There has been much discussion about the use of credit history as a prerequisite for hiring and its disparate impact on minorities though we haven’t seen many lawsuits challenging the practice.

It will be interesting to follow this litigation and see how Kaplan justifies its policy to check credit history as a job related business necessity. The outcome of this litigation could have a significant impact on future higher practices nationwide. For more about the case, read the NY Times article here.

El Paso Employee Wins 5.8 Million Dollar Discrimination Verdict

An El Paso, Texas jury awarded Mark Duncan, a white benefits supervisor, 5.8 million dollars in a discrimination case against his former employer, El Paso Electric.

According to the El Paso Times, Duncan worked for El Paso Electric for six years and had a good employment history with no record of discipline. He was fired in December of 2007 after his life was threatened during an altercation with a company human resources manager.

 Even though Duncan was cleared of any wrongdoing the company fired him along with the human resource manager.

Duncan claimed he was fired because the company feared a lawsuit from the Hispanic human resource manager and that it got rid of him ("the white guy") to create a defense.

The jury agreed with Duncan and awarded him $129,913 in past lost wages; $699,196 in future lost earnings; $5000 in compensatory damages; and 5 million in punitive damages. El Paso Electric plans to file motions to set aside and reduce the verdict according to newspaper reports.

It certainly looks like whoever made the decision to fire Duncan either forgot or didn’t know that white employees can be victims of race discrimination too.

Two Decisions Worth Noting

In Helpin v.Trustees of the University of Pennsylvania, the Supreme Court of Pennsylvania addressed an issue of damages which can be very helpful to other employees down the road.

Mark Helpin, a dentist and professor, won a lawsuit for breach of contract against the University of Pennsylvania and an award of over four million dollars.

Helpin claimed that he was constructively discharged without “just cause” in violation of his contract and that Penn had improperly failed to continue to pay him 50% of the Children’s Hospital of Philadelphia dental clinic profits to which he was entitled. In a great discussion of future earnings, lost business profits, and the propriety of the “total offset approach” to the calculation of those damages, the Supreme Court of Pennsylvania affirmed the award.

Under the total offset approach, it is assumed that the effect of the future inflation rate will completely offset the interest rate, thereby eliminating the need to discount an award to present value. It has been adopted by some, but not most courts, but I expect so see more of its application in opinions to come.

For anyone involved in a case with a large future damages component, this opinion is both interesting and important and one worth sharing with any expert economists prior to his or her testimony.

In Quinlan v. Curtisss-Wright Corp. the New Jersey Supreme Court issued an extremely important and helpful decision which addresses the situation in which an employee takes company documents which bolster his or her  discrimination claim.

Joyce Quinlan was the Executive Director of Human Resources for Curtiss-Wright. She filed a lawsuit claiming that she was passed over for a promotion because of gender discrimination.

Quinlan copied files -- over 1800 documents -- which supported her claim and gave them to her lawyers.

The company found out during discovery in her pending case  that she copied the documents and and fired her (although it did not fire her right away). It claimed that she stole company property in violation of the company's code of conduct and therefore the discharge was justified.

Quinlian amended her lawsuit to add a retaliation claim. The case was tried and the jury awarded her more that 5.4 million dollars in compensatory damages and over 4.5 million dollars in punitive damages.

The case went to New Jersey Supreme Court which ruled in her favor this month. It upheld the trial court’s determination that Quinlan’s copying and retaining the company’s documents was not “protected conduct” and affirmed the jury’s finding that her firing was retaliatory.

In line with several federal court decisions, it adopted a “flexible totality of the circumstances approach” which sets forth seven factors to be considered in determining whether an employee is permitted to take and use documents belonging to his or her employer.

While this is a very good decision for employees, those who feel their employment rights may have been violated still need to be very cautious about taking company documents in violation of a company policy, even if the documents bolster their claims.  The law is tricky and changing, and it's  best to seek counsel and get advice before it’s too late.

Both of these cases represent significant victories for the the plaintiffs and their lawyers.

 images: www.choirboysmctx.org  www.insidehighered.com static.howstuffworks.com

It's A Long Road To Justice

Federal Employee Wins Appeal On Sex And Age Discrimination Claim

Lawyers representing employees in discrimination cases are forever frustrated by federal district court judges whom routinely grant summary judgment to employers instead of allowing cases to proceed to trial for a jury determination.

This recent case of Bartlett v.Gates, in which the Sixth Circuit Court of Appeals reversed the lower court’s summary judgment ruling, is a perfect example of what we potentially face on every case no matter what kind of evidence has been produced.  

What Happened In The Case

Barry Bartlett worked for the United States Department of Defense at the Defense Contract Management Agency (DCMA). In September of 2005, he applied for a promotion to GS-12 contracting officer.   At the time of his application, Bartlett was 58 years old and had 34 years of experience as a GS-11 contract administrator. In addition, Bartlett’s resume showed:

  • a record of military service
  • a bachelor’s degree in history
  • completed graduate course work in business administration, accounting and law

Bartlett was deemed qualified at the initial screening stage and his name was forwarded to Kathleen Lehman, the selecting official for the promotion. 

Another long term employee, Marvin Greenberg, also applied for the position. Greenberg was 63 years old at the time of his application. His resume showed:

  • a bachelor’s and doctoral degrees
  • authorship of a length book and numerous scholarly publications
  • a 27 year tenure at DCMA

In October of 2005, without conducting any interviews, Lehman chose Angela Lucas for the promotion. Lucas, another internal candidate, was 39 years old at the time and did not have a college degree.

Bartlett claimed that between 2003 and 2005, employees who were 55 years or older received only one DCMA promotion, despite making up 36% of the agency’s workforce. He also claimed that female employees were promoted in a series of personnel decisions that involved the manipulation of agency procedures.

Bartlett decided to challenge the decision. In February of 2007, after exhausting his administrative remedies, he filed a lawsuit against the DCMA claiming that he was discriminated against because of his age and sex in violation of the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act of 1964.

The Defendant filed a motion for summary judgment which was referred to a magistrate for a report and recommendation. In October of 2008, the magistrate issued a report which found that Bartlett established a prima facie case of discrimination under Title VII, but the DCMA provided a non-discriminatory reason for its promotion decision and Plaintiff failed to rebut it by showing pretext.

The federal district court judge adopted the recommendation and granted Defendant’s motion for summary judgment against Bartlett. He appealed.

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Tenth Circuit Decides Important Age Discrimination Case

A Boot To Pretext Plus, A Favorable Interpretation Of Gross, And More Age Discrimination Gems From The Tenth Circuit

For anyone interested in representing employees in age discrimination cases, the recent case of Jones v. Oklahoma City Public Schools from the Tenth Circuit Court of Appeals is a must read.

The case is loaded with great stuff including a helpful reading of the Gross case, an affirmation of the use of the McDonnell Douglas burden shifting framework in ADEA cases, a pro-employee interpretation of adverse action and a much needed kick in the pants to pretext plus which was resurrected from the dead by the district court.

What Happened In The Case

Judy Jones began working as a teacher for the Oklahoma City Public Schools (“OKC”) in 1969. She then served as an elementary school teacher for approximately fifteen years. In 2002, Jones was promoted to the position of Executive Director of Curriculum and Instruction.

In 2007, a new superintendant decided to reorganize OKC’s executive team. In particular he decided that Jones’ position could be eliminated and that her duties would be absorbed by other directors.

Jones was reassigned as an elementary school principal. At first she retained her previous salary level though her vacation benefits were affected immediately.

After Jones completed her first year as principal, her salary was decreased by approximately $17,000. The pay cut  reduced her retirement benefits and her daily pay rate was also reduced.

One month after Jones’ reassignment, the superintendant decided to create a new Executive Director of Teaching and Learning position. The job description and responsibilities for this new position were virtually identical to those of Jones’ former position of Executive Director of Curriculum and Instruction.  The new position was filled with an individual who was forty seven years old. Jones was nearly 60 at the time.

The evidence showed that funding for Jones’ position stayed on the books for the 2007-2008 fiscal year, and that her former staff continued to work in the department both before and after the position of Executive Director of Teaching and Learning was created.

In addition, several of her fellow OKC directors, including the interim superintendant, made age-related remarks to Jones regarding her retirement plans.

Jones filed suit in the District Court for the Western District of Oklahoma alleging that that OKC violated the Age Discrimination in Employment Act (ADEA) when it demoted her to the position of elementary school principal.

Quoting Reeves v. Sanderson Plumbing Products, Inc. the district court held that this was a case where the plaintiff established a prima facie case of age discrimination and set forth evidence to reject the defendant’s explanation for its decision, but “no rational factfinder could conclude that the action was discriminatory.”

 Although the district court acknowledged that OKC leadership had made age-related comments, it faulted Jones for not providing any “additional evidence to show that age played a role in the reassignment decision.” Summary judgment was granted against Jones. She appealed.

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Employee Rights Short Takes: Age Discrimination Cases In The News

Here are two Short Takes about some interesting age discrimination cases that made the news this month:

Forced Retirement At Age 70 Is Illegal

Nini v. Mercer County Community College: Rose Nini was a Dean at Mercer Community College from 1982 until 2005 when her contract expired and was not renewed. She was 73 years old at the time.

According to Nini, the college President, Dr. Robert Rose:

  • complimented her on her performance but “made it very clear to [her] that he thought [she] had no right to be working at [her] age”
  • said that employees of her age were considering retirement and suggested she should consider taking early retirement too
  •  told her that people who have been in a job for twenty-five years "lose their effectiveness." 
  • told her that it was her last chance to get an early retirement and leave with dignity.
  • held meetings with department heads in which he made jokes about getting rid of older employees
  • held meetings where several people discussed “age and incompetence and being dead wood”

Nini also stated that she heard from another employee that College Human Relations Director Vanessa Wilson said the College had to "get rid of old-timers and bring in new blood."

The lower court granted judgment in favor of the college holding that the college did not violate the New Jersey Law Against Discrimination because the statute allows an employer to refuse to renew an employment contract of an employee over seventy years of age. The Court of Appeals reversed and the the New Jersey Supreme Court affirmed in an opinion issued on June 1st holding that refusing to renew contracts for employees over the age of 70 because of their age violates the New Jersey’s age discrimination laws.

In other words, the failure to renew a contract because of age is equivalent to a termination -- not a failure to hire --according to the New Jersey Supreme Court. This case is good news for the many employees who are employed with contracts that are renewed year to year, or at the end of a certain term, particularly in states with statutory exceptions in discrimination laws similar to New Jersey’s.

Employees Replaced By Younger Individuals Can Prove Age Discrimination In Workforce Reduction Case

Equal Employment Opportunity Commission v. Tin, Inc.:  The EEOC announced last week that Tin, Inc., a manufacturing plant in Glendale, Arizona will pay $250,000 to settle a discrimination case filed by three employees who claimed they were fired because of their age in violation of the Age Discrimination in Employment Act.(ADEA).

The settlement follows a Ninth Circuit Court of Appeals decision in October that reversed summary judgment in favor of Tin and sent the case back to the district Court for trial.

According to the opinion, one of the plaintiffs, Neal, was replaced by an individual 15 years younger as plant manager. The EEOC provided evidence that Neal never received a negative performance review and in fact was told by his supervisors that they were satisfied with his performance.

The company contended that Neal’s younger replacement was better qualified because a facility he had run was profitable.

Interestingly, the Court stated that “the fact that a facility was profitable under one manager and not another does not mean that the two managers qualifications differed.” In addition, according to the Court, there was little evidence of the replacement's success at the plants in question. Therefore, the Ninth Circuit held, the district court erred in granting summary judgment against Neal since material facts were in dispute.

The other two plaintiffs, McGraw and Vanecko, positions were terminated because their positions were eliminated according to Tin.  In order to establish an inference of discrimination in this type of case, the Court stated,  the plaintiff is entitled to show “that the employer had a continuing need for the employee’s skills and services in that his various duties were still being performed.”

The evidence showed that McGraw’s logistics manager duties were redistributed to the production manger and sales manager who were 20 and 23 years younger. It also showed that  Vanecko’ s plant controller duties were given to someone 24 years younger.

In addition, the EEOC presented evidence that the two supervisors with decision making authority over all three plaintiffs made comments from which a jury could find “that they harbored animus towards older workers.” Therefore, the Court concluded that the EEOC provided sufficient evidence from which a jury could find that age was the “but –for” cause of the terminations.

The opinion helps explain the kind of evidence that is useful in proving age discrimination in the often difficult cases of job elimination and workforce reduction.

Evidence of Non-Sexual Conduct Can Support Title VII Hostile Environment Claim

Harassing Conduct Need Not Be Sexual To Prove Hostile Environment Claim

When does rude conduct in the workplace support a hostile environment sexual harassment claim? The First Circuit Court of Appeals addressed this important issue in the case of Rosario v. The Department of the Army decided last week and you can bet it’s going to make a big difference in sexual harassment cases down the road.

 What Happened In The Case

Ruth Rosario, a civilian employee, worked at the Rodriguez Army Heath Clinic in Fort Buchanan, Puerto Rico as a medical records technician. Her duties included checking patients in and maintaining computerized medical records. 

Rosario worked along side Ivan Arroyo who performed similar duties and trained her. According to the evidence, Arroyo was abusive to Rosario and others on a daily basis.

He threw medical records around, threw personal items in the garbage, disparaged co-workers with derogatory names and made racial comments. According to Rosario, Arroyo:

  • Constantly criticized her clothes as too revealing
  • Constantly talked about her underwear
  • Walked behind her and made faces as he looked at the person she was talking to
  • Complained about the way she would “walk, move, and talk”
  • Would get men together to Rosario’s area where they would “meet, and talk, and then point at her and laugh”

Rosario complained to her supervisor, but the conduct continued.  About a year after the harassment began, Arroyo became Rosario’s supervisor.

Arroyo continued to criticize and mock Rosario and respond to her in ways she found humiliating. According to Rosario, Arroyo watched whatever she was doing or saying and challenged every decision she made. He told her she was fat, had delinquent children, and told her co-workers that she dressed like a “woman of the streets.” Rosario also presented evidence of sexually oriented jokes Arroyo got from the computer which he talked about and passed around.

As a result of Arroyo’s behavior Rosario felt uncomfortable every day, did not want to go to work, became depressed, started losing her hair, experienced panic attacks, and was eventually hospitalized. She needed psychiatric treatment, medication, and attributed the breakup of her marriage to her situation at work.

Rosario filed a formal discrimination complaint with the Army’s Equal Employment Opportunity Office. The agency found against her.

The Lower Court Rules Against Rosario

At the conclusion of the Army’s EEO proceedings, Rosario filed a lawsuit alleging gender and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964.  After dropping the national origin claim, the Federal District Court ruled on Rosario’s gender-based hostile work environment claim and found against her.

The court held that the record showed “Mr. Arroyo [to be] a rude man that lacked courtesy and professionalism,” but the evidence was inadequate to prove a violation of Title VII. The court granted summary judgment in favor of the defendants. Rosario appealed.

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Age Discrimination Gets Attention Of Congress

Hearings Held On Federal Discrimination Bill To Overturn Gross Decision

Last week, both the House and Senate held hearings on the Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 3721, S. 1756). The legislation would overturn the awful Gross v. FBL Financials Services, Inc. case decided by the Supreme Court last year. If passed,  the bill will apply retroactively to all cases pending on or after June 17, 2009, the date of the Gross decision.

Simply stated, the Gross decision holds age discrimination plaintiffs to a higher standard of proof than other victims of discrimination by requiring them to prove that their age was the “but for” cause of the employer's adverse decision instead of  "a motivating factor." I predicted, as did others, that Gross would get a Congressional fix and that’s exactly what POWADA does – and more.

For one, POWADA allows the plaintiff to win an age discrimination case by proving that:

(A) an impermissible factor under the Act (the discrimination statute) was a motivating factor for the practice complained of  -- even if other factors also motivated the practice, or

(B) the practice complained of would not have occurred in the absence of an impermissible factor.

The legislation also establishes that:

  • standards of proof for all federal laws forbidding discrimination and retaliation (including whistleblowing) are the same
  • the plaintiff can choose the method of proof for the case, including the McDonnell Douglas framework
  • employees can rely on any type or form of admissible circumstantial or direct evidence to prove their discrimination and retaliation cases

The Act explicitly states that the standard for proving unlawful disparate treatment under the Age Discrimination in Employment Act of 1967 and other anti-discrimination and anti-retaliation laws is no different than the standard of proof under Title VII of the Civil Rights Act of 1964, including amendments made by the Civil Rights Act of 1991.

In other words, all plaintiffs in discrimination cases will be held to the same standards of proof and will be able to prove their discrimination cases in the same way. While this is most certainly what Congress intended in the first place, it will be very beneficial for all of us who litigate these cases --- and our clients --- to have these evidentiary matters settled once and for all.

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Truck Driver Wins Gender Discrimination Case In Fourth Circuit

Court Elaborates On Types Of  Evidence For Proof Of  Discrimination

The recent case of Merritt v. Old Dominion Freight is hands down one of the best decisions I have come across in a long time.

It addresses gender discrimination, sex stereotyping, and a corporate culture of discrimination in a way few cases have. It’s simply a great case for employees – particularly for victims of sex discrimination.

What Happened In The Case

Merritt worked as a line haul truck drive for Old Dominion, a nationwide trucking company. As a line haul driver, Merritt made lengthy cross-country trips. She performed her duties without incident or complaint. At some point, Merritt became interested in becoming a pickup and delivery driver so she could work more regular hours and spend  nights and weekends at home.

To prove that she could do the job, she filled in numerous times as a pickup and delivery driver, and once again performed the duties without incident or complaint.

When a permanent pickup and delivery position became available at Old Dominion’s Lynchburg Virginia terminal, Merritt talked to Bobby Howard, the terminal manager about it. Howard told her that he lacked the authority to fill the position and proceeded to hire a less experienced man for the job.

The following year another permanent pickup and delivery position became available in Lynchburg and Merritt again expressed an interest in the position to Howard. Once again, Merritt was passed over in favor of a less experienced male.

When Merritt asked why she was not hired, Howard told her that :

  • it was decided and they could not let a woman have that position.
  • the company did not really have women drivers in the city (as pick up and deliver drivers)

On another occasion he told her:

  • the Regional VP was worried about hiring a female pickup and deliver driver because women were more injury prone and he was aftaid a female would get hurt
  • the VP didn’t think a girl should have that position

Finally, a year later, Old Dominion hired Merritt to fill a permanent Pickup and Delivery position in Lynchburg. Merritt was placed on a ninety-day probationary and told she could lose her job if any performance problems arose. Male drivers were not subject to similar probationary terms.

For the next two years, Merritt performed her Pickup and Delivery duties without a problem. Unfortunately, she then suffered an ankle injury at work which was diagnosed as plantar fascititis with a superimposed strain. She was put on light duty work by her doctor at first, but a couple of months later, he gave her a clean bill of health.

When she attempted to return to her regular duties, Brian Stoddard, Vice President of Safety and Personnel, required Merritt to take a physical ability test (“PAT”), a full-body test divided into six components that evaluates the test taker’s general strength, agility, and cardiovascular endurance. The test was graded on a pass/fail basis. The PAT was created for Old Dominion to be used in the hiring process and had been used to evaluate potential hires, but only on a variable basis.

Merritt struggled with several segments of the test and received a failing grade. According to Merritt, the tasks she had problems with had nothing to do with her ankle. In one portion of the test, for example, Merritt was unable to place a box of weight on an overhead shelf simply because she was too short.

After receiving the results of Merritt’s PAT, Stoddard terminated Merritt’s employment. Merritt filed a charge of sex discrimination with the EEOC and then filed a lawsuit in federal court in Western District of Virginia claiming that Old Dominion terminated her because of her gender in violation of Title VII Civil Rights Act of 1964.

The district court granted judgment against Merritt because it found that Old Dominion produced a legitimate reason for firing Merritt (she failed the PAT) and because she had not produced any evidence that Stoddard (the decision maker) harbored any “discriminatory animus” towards Merritt. Merritt appealed.

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Employee Has Privacy Interest In E-Mail Communications To Attorney On Company Computer

Employee's E-Mails To Lawyer On Company Laptop Are Off Limits

The decision by the Supreme Court of New Jersey in Stengart v. Loving Care Agency  has a lot  of lawyers talking. The case has to do with the privacy interests of an employee’s personal e-mail on a company computer and the attorney-client privilege.

The reason the case made ripples through the employment law community is because there simply aren’t many decisions on the issue and it hits a topic of real practical concern for both employers and employees.

What Happened In The Case

Marina Stengart worked for Loving Care Agency, Inc. (“Loving Care”), a home health care agency, as an Executive Director of Nursing.  Like many employers, Loving Care provided Stengart a laptop computer for company business. Stengart could send e-mails using her company e-mail account from the laptop and she could also access the Internet through Loving Care’s server. 

In December of 2007, Stengart used her computer to access a personal, password-protected e-mail account on Yahoo’s website to communicate with an attorney about her situation at work. She never saved her Yahoo ID or password on the company laptop.

When she sent the personal e-mails Stengart didn’t know  that Loving Care’s browser software automatically saved a copy of each web page she viewed on the computer’s hard drive in a “cache” folder of temporary Internet files.

Stengart left Loving Care and returned the laptop computer.  A couple of months later, she filed a lawsuit with claims of discrimination, harassment and retaliation.

After the lawsuit was filed, Loving Care hired experts to create a forensic image of the laptop's hard drive. Among the items retrieved were the e-mails Stengart exchanged with her lawyer via the personal Yahoo account.

Loving Care's lawyers used the e-mails in the lawsuit. Stengart’s lawyers demanded that the e-mails be identified and returned. Loving Care’s Lawyers argued that Stengart had no expectation of privacy in light of the company’s electronic communications policy which stated in part:

  • Loving Care may review, access, and disclose all matters on the company’s media systems and services at any time
  • e-mails, Internet communications and computer files are the company’s business records and are not to be considered private or personal to any individual employee
  • occasional personal use of the computer is permitted

Stengart’s lawyers asked the trial court to order a return of the e-mails and disqualification of  Loving Care’s lawyers. The judge denied the request, concluding that Stengart waived the attorney client privilege by sending e-mails on the company computer.

Stenagart appealed.The Court of Appeals reversed.

It  found that Stengart had an expectation of privacy in the e-mails and that Loving Care's lawyers violated the disciplinary rules by failing to alert Stengart's lawyers that they had the e-mails before they read them.

It sent the case back to the trial court to determine whether disqualification of the firm, or some other sanction was appropriate. Loving Care appealed

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AIDS Discrimination Victim Gets New Trial

Admission Of EEOC "No Probable Cause" Determination Is Reversible Error

I ran across this case recently and I think it’s definitely worth talking about.  It deals with a real problem in discrimination cases that has been around for as long as I can remember and it affects just about everyone who files an EEOC charge.

The case, Byrd v. BT Foods, Inc., addresses the controversial issue regarding the admissibility of  EEOC findings at trial and it's a good result for employees.

What’s The Problem?

When an individual files an EEOC charge, the EEOC  conducts an investigation. At its conclusion, the EEOC issues a determination letter stating one of two things:

  1. there was probable cause to believe that discrimination, retaliation, etc. occurred or
  2. there was no probable cause to believe that a violation of the civil rights law occurred

After the determination, the EEOC issues a Notice of Dismissal and Notice of Right to Sue which gives the individual the right to go to court.

Here’s the potential problem for the employee who did not prevail at the EEOC (or its state counterpart).  At trial, the employer always tries to introduce the EEOC dismissal and no probable cause determination.

In effect,  the employer wants to argue to the jury, “the government investigated this case, didn’t find discrimination, and you shouldn’t either.”  It doesn’t take Clarence Darrow to figure out that this argument can be quite damaging to the plaintiff’s case at trial.

 What Happened In The Case

Cemeshia Byrd worked at Wendy’s in Coral Springs, Florida. Byrd filed a lawsuit against BT Foods (doing business as Wendy’s Coral Springs) claiming that she was discriminated against when she was terminated because she had Human Immunodeficiency Virus (HIV). 

Discrimination because of AIDS is illegal in the U.S. under the Americans with Disabilities Act. It's also illegal under many state civil rights laws, including the Florida Omnibus Aids Act and the Florida Civil Rights Act.

Before proceeding to court, Byrd filed a charge of discrimination with the Broward County Civil Rights Division, an agency which conducts investigations for the Equal Opportunity Commission.

After receiving a no probable cause letter of determination, Byrd filed a lawsuit in Broward County Circuit Court claiming discrimination and intentional infliction of emotional distress.

Before trial, Byrd filed a Motion in Limine -- which is a request for an order to exclude the admission of particular evidence at trial. Generally the gist of the augment on a Motion in Limine is that:

  • the evidence is irrelevant, highly prejudicial, or hearsay and
  • the jury should not be able to hear or see the evidence nor should there be any reference to it

In this case, Byrd asked for an exclusion of EEOC documents including the Notice of Determination and Notice of Dismissal of her EEOC charge.

She argued that the EEOC “NO PROBABLE CAUSE STATEMENT" written in capital letters in the Notice of Determination were highly misleading, unduly prejudicial, and too conclusory to provide any meaningful probative value . She also argued that the jury would be likely to give the dismissal and “no probable cause determination” more weight than is appropriate.

The judge ruled against Byrd and in favor of BT Foods on the Motion in Limine.  During the trial, according to Byrd, BT Foods made the reasonable cause determination the centerpiece of its defense.

Byrd lost her jury trial and filed an appeal. In it she claimed that the court’s admission of the EEOC findings constituted reversible error which entitled her to a new trial.

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Employee Rights Short Takes: Age Discrimination, Constructive Discharge and More

Here's a few Short Takes worth sharing:

Supervisor Liability

 Payne v. U.S. Airways, Inc. (Reprinted from Westlaw with permission of Thomson Reuters) :The Court held, in a matter of first impression, that a former employee's supervisor was an agent of the employer and individually liable for sexual harassment under the Vermont Fair Employment Practices Act. While the opinion only pertains to Vermont, the language may be helpful in states with similar statutes.

Constructive Discharge

Klein v. Raytheon Co(Reprinted from Westlaw with permission of Thomson Reuters): A California federal judge allowed a constructive discharge lawsuit to proceed based on a physics engineer's claim that his supervisor told him his mental disability was a "load of crap". His supervisors also called him a "liar," "thief" and "fraud", threatened to strip him of his security clearance, and told him that he would never be able to work in the aerospace industry again.

The Court rejected Raytheon's motion to dismiss the suit on the grounds that harsh or threatening language used in a single instance is insufficient to support a constructive discharge claim under the California Fair Employment and Housing Act. There aren't many cases that address the "single instance/incident" argument, so this one helps.

 

Age Discrimination

Law Firm Sued By EEOC For Age Discrimination: The EEOC filed a suit against the  New York law firm of Kelley Drye & Warren claiming that it significantly underpays attorneys who practice law past age 70 compared to similarly productive younger attorneys in violation of the Age Discrimination in Employment Act. Here's the complaint. It's not the first time law firms have been in trouble for age discrimination. The EEOC got a whopping $27.5 million dollar consent decree in a similar case against the Sidly Austin law firm in 2007.

Sexual Harassment

King v. McMillan: The Fourth Circuit affirmed a jury award to the plaintiff of $50,000 in compensatory damages on her Title VII sexual harassment claim, $175,000 on her sexual assault/battery claim (remitted to $50,000) and $100,000 in punitive damages. It's a very helpful case to read regarding evidentiary questions and jury instructions for those involved in cases of both sexual harassment and battery. It's also helpful on the issue of punitive damages.

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Court Upholds $1.9 Million Dollar Verdict In Gender Discrimination Case Against Wal-Mart

Female Pharmacist Wins Appeal Including Punitive Damages and Huge Front Pay Award

It’s one thing to prove discrimination. It’s an altogether different thing to prove damages which occurred as a result of it.

In the recently published gender discrimination case of Haddad v Wal-Mart Stores Inc,*, the  Supreme Court Court ("SJC") of Massachusetts affirmed a jury verdict which included $733,000 for 19 years of front pay (future economic loss) and $1 million dollars in punitive damages – and that’s big news.

What Happened In The Case

Cynthia Haddad worked as a pharmacist at Wal-Mart for ten years (seven of those in the Pittsfield, Massachusetts store) mostly as a staff pharmacist..Throughout her time at Wal-Mart, she received excellent evaluations.  

Towards the end of her employment, Haddad accepted the position of pharmacy manager.

During that time, she received less pay than any male pharmacy manager which she consistently complained about.

On April 14th, 2004, Haddad was questioned by three Wal-Mart managers about abut two fraudulent prescriptions.

One of the prescriptions was written in 2002 while Haddad was on duty, and another was written in 2004 while a male pharmacist was on duty.

Haddad told the managers that she did not know anything about the fraudulent prescriptions.

She did admit that the 2002 fraudulent prescription could have been written when she briefly left the pharmacy area to buy a soda at a nearby counter, or when she was in the restroom, eating lunch, or talking to customers.

Haddad’s employment was terminated that same day.

She was told that the reason for her termination was based on her statement during the interview that she failed to secure the pharmacy and left Baran (the technician) unattended in the pharmacy area. Baran, who admitted that she falsified the prescription,was also terminated.

The other pharmacist involved -- Richard Blackbird -- was on duty the day the fraudulent 2004 prescription was written. That prescription contained his initials.

In a clear case of unequal treatment, neither Blackbird, nor any other pharmacist was questioned about or disciplined for the 2004 fraudulent prescription.

In stark contract to the treatment Haddad received,  Blackbird was appointed to be pharmacy manager at the time of Haddad's departure.

In addition, Blackbird testified that he commonly left the pharmacy area unsecured to talk to a customer, go the restroom, or get a snack – and that he was unaware of any policy prohibiting this practice.

Haddad filed a lawsuit alleging unequal compensation and termination of employment in violation of Massachusetts laws against discrimination. ( M.G.L. c. 151B, s.4) The complaint also stated a claim for defamation.

The jury found in Haddad’s favor and awarded $922,774 in compensatory damages which included:

  • $17,700 in special damages
  • $125,000 for emotional distress
  • $95,000 in back pay
  • $733,000 in front pay

The jury also awarded $1 million dollars in punitive damages.

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Great Disability Rights Opinion From Seventh Circuit For Employees And Their Lawyers

Employee With MS Wins Appeal In Seventh Circuit "Regarded As" Disability Decision

A case was decided by the Seventh Circuit Court of Appeals last week that was an important victory for the employee as well as his lawyers.

In Brunker v. Schwan’s Home Service, Inc. the Court reversed judgment in favor of Schwan’s on Brunker’s disability claim. It also reversed the lower court’s testy imposition of sanctions against Brunker’s lawyers.

What Happened In The Case.

Frank Brunker worked as a delivery driver for Schwan’s delivering frozen food to its customers. In February of 2003, Brunker started experiencing shaking of his hands, slurred speech, dizziness, light headedness, and headaches.

The symptoms continued, Brunker went to the doctor, tests were taken, and Brunker was told that he might have multiple sclerosis.

Brunker went on disability leave for two months. Eventually, he went back to light duty work, and then back to work without any restrictions by his physician. He performed his job and was able to complete his route in the same manner as he had in the past.

Four months later, Brunker told his supervisor that he wanted to go to the Mayo Clinic for some tests. Around the same time, he stared to get written up for various performance issues.

When Brunker returned two weeks later, after being diagnosed with multiple sclerosis, his supervisor fired him citing “unsatisfactory performance” and "unable to perform essential job functions” on the termination form.

(Notably, Brunker’s supervisor backdated the termination form to September 9, the day Brunker left for the clinic and before his diagnosis of multiple sclerosis.)

Brunker filed a claim in federal court for disability discrimination under the Americans With Disabilities Act. The lower court (N.D. Indiana) threw out the case and in an unusual move, sanctioned Brunker’s lawyers because of their discovery requests (attempts to get evidence to prove their case).

The Seventh Circuit Reverses

It would be tempting to go in to all of the reasons why the lower court’s opinion was just flat out wrong, but some of them don’t matter anymore since the Americans With Disabilities Act was amended to prevent precisely this result.

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Congress Introduces Age Discrimination Bill To Fix Supreme Court's Gross Decision

Age Discrimination Legislation Will Overturn Gross Decision

Last June, the Supreme Court issued the awful and controversial age discrimination opinion in the Gross v. FBL Financial Services case.

I wrote about the case at that time and predicted that it was just a matter of time until Congress fixed it with a bill that would overrule the decision and set the record straight on the fair standard of proof for age discrimination plaintiffs.

Last Tuesday, the Senate and House introduced legislation designed to do just that.

The bill -- introduced as H.R. 3721 -- and called the Protecting Older Workers Against Discrimation Act, will put age discrimination plaintiffs back where they were before the Gross decision.

The bill will apply to all cases pending on or after June 17, 2009,  the day before the Gross decision.

Senator Patrick Leahy, one of the authors of the bill had this to say (as reported in the New York Times):

What our bill does is restore the intent of Congress, an intent that I believe the Supreme Court negligently ignored.

In Gross, the Court held that the Plaintiff, Jack Gross, was required to prove that age was the “but for” reason he was demoted from his job.

In other words, the plaintiff would have to prove that “but for" his age, he would not have been demoted (fired, hired, etc.).

Most interpret this as a new and more stringent requirement that age be the sole reason for the adverse employment action (though the case has conflicting language on that issue).

What's fundamentally flawed about the Court's interpretation of the federal age discrimination statute (ADEA) is that it's not consistent with all  of the other comparable civil rights statutes.

Simply stated, it makes no sense for an age discrimination plaintiff to be treated differently, and more harshly, than a plaintiff in a race or gender discrimination case. The method of proof and standard of proof has been, and ought to be, the same.

In other discrimination cases a plaintiff must prove that the alleged discrimination was "a motivating factor," not the  sole reason, for the challenged adverse employment decision.

This bill establishes that age discrimination cases are to be interpreted by the same "motivating factor" standard of proof.

The bill also explicitly recognizes the difficulty of proving discrimination cases and makes clear that victims of any kind of prohibited discrimination can prove their cases with direct or circumstantial evidence.

According to Senator Tom Harkin, one of the co-sponsors of the bill -- as reported in Workforce Management:

The Court invented a new standard that makes it prohibitively difficult for a victim to prove age discrimination

This extraordinarily high burden radically undermines older workers’ ability to hold employers accountable.

It’s no secret that workers over 55 have been hit hard by the recession. According to the EEOC, 25,000 age discrimination cases were filed last year, a 30%increase from 2000.

The last thing these folks need is a more difficult standard of proof when age discrimination is at play.

Fortunately, Congress has the final say on what its legislation means and how it should be interpreted. That’s why it gets to say that all discrimination plaintiffs should be treated consistently by the courts.

Let’s hope that this important Congressional fix gets passed soon.
 

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Important Decision From Sixth Circuit in Discriminatory Failure to Promote Case

Female Officer Wins Big In Fight For Discriminatory Denial Of Promotion

It’s not uncommon for women to be passed over for promotions they deserve – but proving gender discrimination has been difficult.

The good news is that the recent decision from the Sixth Circuit Court of Appeals in Risch v. Royal Oak Police Department will make it easier to succeed in these cases in the future. 

What Happened In The Case

Karen Risch was a patrol officer for the Royal Oak Police Department for seventeen years.

In 2005 Risch was passed over for a promotion to the position of detective. Two male applicants, who had lower scores than Risch under the promotion system used by the Department, were awarded the positions instead of her.

Risch claimed that the Department failed to promote her to a command position six times between 2002 and 2005.

Risch filed a gender discrimination claim under Title VII of the Civil Rights Act of 1964. The federal district court (Eastern District of Michigan) granted judgment in favor of the Royal Oak Police Department and threw out Risch's case.

On September 23, 2009, the Sixth Circuit Court of Appeals reversed and this is why.

Evidence of Pretext

Discrimination cases are hard to prove but here's how it's done in a nutshell.

The plaintiff can prove her lawsuit by establishing what is called a prima facie case which can establish an inference of discrimination. If she does that, the defendant must come forward with admissible evidence of a legitimate, nondiscriminatory reason for its action.

Once the Defendant establishes a legitimate nondiscriminatory reason for its conduct,  the plaintiff must identify evidence from which a reasonable jury could conclude that the employer's proffered reason is a pretext for unlawful discrimination.

A plaintiff can prove pretext by showing that the employer’s stated reason for the adverse employment action either:

  1. has no basis in fact or
  2. was not the actual reason or
  3. is insufficient to explain the employer’s action

In this case, the trial court granted judgment against Risch because it concluded that Risch failed to present sufficient evidence that the Department’s proffered explanation for not promoting her was pretextual.

The Sixth Circuit Court of Appeals disagreed and reversed, holding that Risch did present ample proof of discrimination to to go before a jury.

Here’s the evidence the Court determined to be  evidence of pretext and gender discrimination.

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Eighth Circuit Sets Record Straight On Age Discrimination

Age Discrimination Plaintiff Gets Great Decision From Court of Appeals

It looks like a typical age discrimination scenario. A supervisor makes hostile remarks about older employees and expresses a preference for younger ones. An older employee with an excellent record gets fired for trumped-up reasons and a younger employee is hired to replace her.

What seems like an obvious case of age discrimination was not so obvious to the Federal District Court in the Western District of Missouri when it threw out the case of Baker v. Silver Oak Senior Living Mgt. Co. on summary judgment.

Fortunately, the Eighth District Court of Appeals reversed this month in an important opinion about the proper interpretation of evidence in an age discrimination case. 

What Happened In The Case

Kathy Baker worked as the director of assisted living at a center operated by Silver Oak since 2003. Her 2004 review was excellent in every category.

A few months later, Carolyn Thomas was hired as Baker’s new supervisor. After taking over, Thomas told Baker that:

  • Silver Oak needed people that were "young and vivacious, not slow and old"
  • Baker "needed to get rid of the dead wood"
  • Employees who had been fired were "slow and old"

She also told Baker that:

  • She dressed like an old lady
  • Everyone had to "keep up with" two supervisors who were in their thirties

The CEO, Eric Lindsey, made similar remarks at meetings attended by Baker.

Thomas also admitted that she teased Baker about walking slowly and having poor hearing. She also repeatedly asked Baker to fire and discipline older employees.

When Baker told Thomas that  "you can’t get rid of employees just because they’re old," Thomas responded that:

  • "firing older employees would allow Silver Oak to hire younger employees for less money'"
  • "younger employees would be better workers, have more energy, be more enthusiastic, and stimulate the residents"

After refusing Thomas’ demands to get rid of the older employees, Baker was disciplined and placed on indefinite probation.

The reason given was that Baker allegedly failed to get proper approval before admitting a special-needs resident and dismissed an employee without having an administrator present.

Baker claimed that that these allegations were false.

Following those events, Thomas gave Baker a negative performance evaluation and asked Baker whether she was going to quit. She said no.

A couple of months later, Baker went on an approved medical leave. She was called in at some point during her leave, told that she had been temporarily replaced and that she was being transferred to another city.

She was again asked if she wanted to quit and again she said no.

Shortly after that she was fired . The reason given was that she did not call in each day during her medical leave. Baker was 53 years old at the time.

Angela Thomas, age 30, temporarily took over Baker’s duties until a new director -- 22 year old Starr McGinnes --  was hired to replace Baker a couple of months later.

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Dan Rather Wins Round In Fraud Case Against CBS

Important Win for Employee in Fraud Case Against Employer

It's not often that employees sue their employers for fraud, but that's what Dan Rather did when he sued CBS in 2007. The news is that  he had a significant victory this week in his case. 

The Lawsuit

As some of you may recall, Rather filed a lawsuit claiming that his career was irreparably damaged because CBS intentionally mishandled a 2004 story about Bush's National Guard service.

The story had to do with Bush's allegedly going AWOL during his National Guard Service in 1972. The story was aired on CBS's Sixty Minutes II  during the 2004 election.

According to Rather's lawsuit, the broadcast reported that:

  • political influence was used to get Bush into the TexANG so he wouldn't have to go to Vietnam
  • after being trained as a fighter pilot in 1972, Bush failed to appear for a required physical examination
  • high level political influence was again engaged to avoid military discharge from the military

As Jackson Williams from the Huffing ton Post put it:

[E]vidence (from the Boston Globe and others) strongly suggests that George W. Bush literally bailed on his Guard duty, got a transfer to Alabama, and then disappeared for at least the final 12 months of his military commitment, perhaps up to 17 months. Some have a lost weekend; he had a lost year.

After the story aired, according to the complaint, the broadcast was attacked by conservative political elements supportive of the Bush Administration. 

In turn, CBS announced that it was going to conduct a thorough independent investigation into the story of the broadcast and its production.

Instead, according to Rather:

Its intention was to conduct a biased investigation with controlled timing and predetermined conclusions in order to prevent further information concerning Bush’s TexANG service from being uncovered.

The complaint further alleges that CBS:

1.     planned to and did use Rather as a scapegoat to pacify the White House

2.     coerced Rather into publicly apologizing and taking personal blame for errors which were a )never established and b) not Rather’s fault

3.     breached its employment contract with Rather by terminating him as anchor on the CBS evening news and thereafter giving him few assignments, little staff, little air time, and basically nothing to do 

The Fraud Case

Generally speaking, in cases of fraud, an individual must prove:

  1.  a material representation of a presently existing or past fact,
  2.  made with knowledge of its falsity and
  3.  with the intention that the other party rely on it,
  4.  resulting in reliance by that party
  5.  to his or her detriment

While there is no set way in which fraud claims come up in the employment setting, they are often seen when an employer lures an employee away from a secure position to a new job based on representations which turn out to be false.

They also come up when an employer makes false representations to employees to get them to stay on the job after they announce an intention to leave.

The meat of these cases show that representations were made (either spoken or written) which were known to be false with the purpose of inducing the person to rely on them.

The second part of the proof involves a showing that the person did in fact rely on the false statement(s), and that he or she was damaged as a result.

In Rather’s case, it is claimed that CBS, as well as individually named defendants, made false representations, which they knew to be false at the time they were made, and which they had no intention of fulfilling, including the following:

  • CBS intended to conduct a fair and impartial investigation of the broadcast
  • CBS would at all times take all necessary steps to preserve Rather’s reputation
  • CBS intended to fully utilize Rather’s experience
  • If Rather refrained from retained a private investigator to investigate the story underlying the broadcast, CBS would retain one and make the findings available to Rather 
  • CBS was going to extend his contract

All of these representations were false, according to Rather, and made so that Rather would refrain from making public statements concerning the Bush broadcast in order to defend himself and preserve his reputation

As a result,  according to his compliant, his career were irreparably damaged, he was ostracized, and he gave up significant employment opportunities.

(There appears to be an amended complaint which may have more detail but that’s the gist of what’s I could find)

What happened this week is that the fraud claim, which was previously dismissed, was reinstated by the Court of Appeals in New York -- a big victory for Rather and his lawyers. It also, in theory, gives Rather the opportunity to get punitive damages awarded against the defendants.

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Race Discrimination Plaintiff Gets a New Trial

It's not often that we see a case in which the verdict for the employer is reversed in favor of the employee because the judge improperly excluded evidence -- but that's exactly what happened in the case of Cobbins v. Tennessee Department of Transportation .   Here's the story:

The plaintiff, Greg Cobbins,  an African-American  was employed by the Tennessee Department of Transportation ("TDOT") since 1994.

In 2005 Cobbins became eligible for a promotion for which he was qualified.  He was considered along with another candidate ( white male) named Bradford Staggs.

Staggs got the job instead of Cobbins.  Cobbins believed he was discriminated against and filed a lawsuit.

Part of the reason stated for the decision to choose Staggs over Cobbins, according to the Regional Director of TDOT, was that Cobbins had "less education" and "several oral and written warnings in his work file".

The most common way that discrimination cases are proven is with circumstantial evidence showing that the reasons given for the adverse employment decision are not valid, not credible, or not believable -- it's called pretext.

During the trial, when Cobbins attempted to offer his evidence of pretext as to the reasons stated for the denial of his promotion, the judge refused to allow it:

  • "Less education": Cobbins had evidence that Staggs lied about his education on his promotion application.  Staggs' application stated that he had "postsecondary education after high school" during the years 1991-1995. It turns out that Stagss didn't even graduate from high school until 1995 so the statement could not have been true.

The trial court judge refused to allow Cobbins to introduce the evidence showing that Staggs had lied about his education.

  • "Several oral and written warnings in his work file": Cobbins did have several warnings in his file. However, Cobbins had evidence that his former supervisor, Wayne Youcum, was biased and discriminated against him. Several years earlier, Cobbins charged Yocum with discrimination and Yocum retaliated by:
  1. marring Cobbins work record with unfounded complaints,
  2. refusing to give Cobbins supervisory responsibilities, and
  3. treating him more harshly than the white employees.
  • The first lawsuit over Yocum's conduct was dismissed because Cobbins failed to file a brief on time. (Cobbins blamed  the new electronic filing system of the court for the failure to process the brief )
  • The important point is that the previous case was never decided "on the merits" but rather was dismissed due to a technical matter.

The trial court judge refused to allow Cobbins to introduce evidence showing that the warnings in his file were prompted  by his former supervisor's discriminatory motives.

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The Hidden Minefield of Workforce Reductons

There's sadly lots of news about workforce reductions.  There also seems to be lots discussion about  discrimination cases in the context of workforce reductions but as far as I am concerned, most of them are really missing the point.   

I have handled many discrimination cases over the years in times of recession. On most occasions, companies have downsized with the advice of many lawyers and consultants. Those companies appear to have been given the same or similar advice as  that which was given by an employment lawyer recently published in a National Law Journal article. 

It goes like this:

Successfully battling this "recessionary discrimination" requires the use of statistical analysis comparing the demographics of those laid off with those who are retained.

This is the way that advice is translated:

  1. Managers are given directives to downsize and cut costs in their departments by a certain percentage or certain number.
  2. Managers, armed with instructions on methodology, make the decisions about who should stay and who should go.
  3. Following the standard advice, overall statistics are then looked at to determine if there are a disproportionate number of women, minorities, or those over 40, who are on the targeted list.

If the statistics look good, the terminations are executed, and  the company thinks it's off the hook as far as it's exposure to discrimination lawsuits.

The problem is that while companies relying on this advice may be off the hook for large class action cases, they are not off the hook on the individual employment discrimination case.

For example, as often happens, the long term employee with a solid record of performance is selected while their much younger counterpart is not. There is no objective support for the decision and the company gets sued for age discrimination. 

In that circumstance the overall statistical data makes no difference whatsoever – not to me, not to my client, and not to the jury. What matters is: what justification did you have for terminating the 57 year old employee and keeping the 32 year old my client trained to do his job? If the explanation is not credible, more often than not, the company will lose.

It is an inescapable truth that when managers are given discretion to terminate employees, some bias may come into play – whether it’s getting rid of a woman, a minority, or an older employee for whom the manager has some prejudice.  A  workforce reduction gives that manager a chance to get rid of the disliked employee. This individual biased decision may not show up statistically, and statistical analysis is not going to get the company off the hook in those cases.

So companies beware. While it's certainly not bad advice, or the wrong advice to look at the overall statistics on a workforce reduction, it's not all that matters.  

image:http://www.delarondeforge.com

Sexual Harassment Not Observed by Victim Can be Used Against Employer

Can a plaintiff support her sexual harassment claim with evidence of sexual harassment she did not observe? According to the Fourth Circuit Court of Appeals in Ziskie v. Mineta the answer is yes.

Cynthia Ziskie sued the Federal Aviation Administration for creating a sexually hostile work environment.

In support of her claim, Ziskie submitted affidavits from co-workers containing examples of crude and inappropriate behavior (i.e. making fun of pregnant worker’s breasts, commenting that women should be home taking care of children instead of working, calling a woman "an alien with big boobs" , calling a woman a “stupidvisor”, telling a female supervisor to “fuck off ”, etc.)

The District Court threw out Ziskie’s case holding that Ziskie’s sexual harassment was not severe enough to support the claim. The District Court refused to consider the affidavits of the other female employees and would only consider what Ziskie personally experienced. In reversing the decision of the District Court, the Fourth Circuit Court of Appeals said:

 When examining all the circumstances of a plaintiff’s workplace environment, evidence about how other employees were treated in that same workplace can be probative of whether the environment was indeed a sexually hostile one, even if the plaintiff did not witness the conduct herself. Hostile conduct directed toward a plaintiff that might of itself be interpreted as isolated or unrelated to gender might look different in light of evidence that a number of women experienced similar treatment.

The opinion noted that the district court’s “blanket refusal” to consider the testimony of the other women was inconsistent with the Federal Rules of of Civil Procedure  and Evidence which require that all relevant evidence be considered:

Even if  Ziskie did not witness the conduct  described herein, it is nonetheless relevant because it could contribute to the evidence offered to show that the workplace environment at the Washington Center was indeed a hostile one.

This is a hugely important decision for victims of sexual harassment. In order to prevail in these cases, the plaintiff must prove that the harassment was severe or pervasive. Far too often claims of sexual harassment fail, as did this one initially, because the judge finds that the victim’s testimony alone does not meet that burden. In other words, yes some harassment may have happened, but it wasn’t “severe or pervasive” so you lose and the case is thrown out.

This decision, which allows the testimony of the co-workers to establish the severity or pervasiveness of the sexual hostility in the workplace, will go a long way in helping women assert their rights.     

image: http://www.worktrauma.org/CKF60026.JPG

Supreme Court Surprise

 This post was originally published in Today's Workplace www.workplacefairness.org on September 10, 2008

Three years ago, I was interviewed by Court TV about the John Roberts nomination. In preparation, I painstakingly reviewed his record. In so doing, I reached the unpleasant conclusion that Roberts was philosophically opposed to civil rights and other legislation for the public good which Roberts deemed to an improper exercise of congressional power.

 The Roberts point of view, it seemed to me, was that since Congress should not have authored this legislation to begin with, it must be as narrowly construed as possible. This was the only logic I could discern which connected a long record of what appeared to be outright hostility to plaintiffs in civil rights cases.

 I was extremely worried about what might happen with Roberts at the helm of the Court. The Alito nomination, with a record equally as hostile to plaintiffs in civil rights cases as that of Roberts, made me feel even more concerned. The harsh reality of Thomas and Scalia combing with these forces was a truly frightening prospect.

But the fact remains; we never really know with any precision what one will do after ascension to the Supreme Court actually occurs. Nothing surprised me more than the Court’s decision this past year in the decision of Sprint v Mendelsohn 128 S. Ct. 1140 (2008) – and it was a very pleasant surprise indeed. 

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