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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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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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Direct Evidence Of Age Discrimination Gets Plaintiff Jury Trial: Court Wrongfully Applied Mixed Motive Standard To Bounce The Case

It’s hard to believe that this age discrimination victim got thrown out of court and had to go to the Eleventh Circuit Court of Appeals for a reversal but here’s what happened in the recently decided case of  Mora v. Jackson Memorial Hospital.

Facts Of The Case

Sixty-two year old Josephine Mora worked for Jackson Memorial Hospital ("Hospital') as a fundraiser. She initially worked for someone named Chea who recommended to the Hospital’s chief executive, Rodriguez, that she be fired. The reasons for the recommendation are not set out in the opinion. 

Rodriguez first agreed, but then decided to give Mora a different position in his own office “where he could observe her more closely.” Mora worked with Rodriguez for a month. Rodriguez claimed during that time Mora was responsible for several errors and displayed a lack of professionalism.

At the end of the month, Rodriguez fired Mora. When he did so, according to Mora, Rodriguez called her into his office and said:

I need someone younger I can pay less … I need Elena [Quevedo, a 25 year old employee]

In addition, one employee heard Rodriguez tell Mora:

You are very old and inept. What you should be doing is taking care of old people. They really need you. I need somebody younger that I can pay less and I can control.

Another employee heard Rodriguez say, "she's too old to be working here anyway" in reference to Mora.

In the course of  Mora's lawsuit filed under the Age Discrimination in Employment Act, ("ADEA") Rodriguez denied making these discriminatory remarks. In addition, the Hospital argued that even if it did discriminate against Mora, she would have been fired anyway because of poor performance.

The district court agreed with the defendant, concluded that the Hospital had met its burden under the “same decision” affirmative defense, and granted judgment in favor of the Hospital. Mora appealed.

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Kmart Employee Fired For Taking Medical Leave Wins Family and Medical Leave Act Appeal

You would think most employers know that you’re not supposed to fire someone because they take a medical leave of absence – but it looks like K-Mart may have missed the boat.

A sales clerk at one of its Michigan stores who lost her job for taking time off after surgery will get her jury trial on a Family and Medical Leave Act retaliation claim according to the Sixth Circuit Court of Appeals opinion last week in Cutcher v Kmart Corporation.

Here’s what happened in the case.

The Facts

Susan Cutcher worked as a full-time hourly sales clerk at Kmart for many years. (Kmart calls these employees “associates”)  Her performance evaluations were good to excellent.

In 2002, she received an overall rating of “exceptional,” the second highest rating available that year.  In 2003, she again received a rating of “exceptional,” the highest possible rating in that year’s appraisal.

In 2004, her rating dropped from “exceptional” to “exceeds expectations,” the second highest rating possible. In 2005, she again received an overall rating of “exceeds expectations.”

The 2005 review  noted: “Susan usually is able to provide good, friendly, customer service, her work is usually very well done—and accurate.”

In early November 2005, Cutcher learned that she needed surgery. Her doctor indicated that she required six weeks off work after surgery and signed the necessary forms which Cutcher then submitted.

In December of 2005, while Cutcher was on leave, Kmart announced a nationwide reduction in force (“RIF”).  The Port Huron Michigan store, like others, was required to cut a number of associate positions.

Each store received guidelines as to how it would go about making the cuts. The guidelines included an "Associate Performance Recap Form” which included :

• the same four performance categories as the annual evaluations: customer service, teamwork, demonstrated work habits, and effectiveness in position

• consideration of  the employee’s most recent annual appraisal rating in calculating an employee’s score

• a requirement that the stores provide an explanation in the comments section -- along with documentation -- of a significant change in the employee’s score when compared to their annual appraisals

• a statement  that those on a LOA (leave of absence) should be included in the selection process but that the fact of a LOA should not be considered as a rating factor

When Cutcher was evaluated for the RIF, she received lower ratings than she received in the last performance appraisal for the same categories. In addition, the following comment appeared next to her name: “Poor customer and associate relations. LOA.”

The last evaluation was just twenty days earlier, and no performance issue occurred in the interim, nor was there any documentation to substantiate a lower rating. The only employment event regarding Cutcher was her leave of absence.

The negative evaluation and low scores caused Cutcher to be selected for termination. Had she been evaluated consistently with her last evaluation of November 15, 2005 --just twenty days earlier -- her ranking would have been high enough to avoid the RIF.

When Cutcher returned from medical leave to active status on January 23, 2006, she was greeted with a pink slip. Her position was not eliminated. It was given to another employee.

Cutcher filed a lawsuit in federal court against Kmart claiming that Kmart violated the FMLA by interfering with her FMLA leave and retaliating against her for taking FMLA leave.

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Winning Plaintiff In Supreme Court Crawford Decision Gets Big Verdict For Title VII Retaliation

We often read about cases in the courts of appeals, including the ultimate court of appeals -- the United States Supreme Court -- in which the plaintiff prevails and gets the opportunity to take his or her case to a jury.

We study these cases because of the legal principles and precedents involved and how they will affect other clients and cases in the future.

We don't usually hear -- and it's not commonly reported -- what eventually happens to the plaintiff who won the reversal and got the chance to go to court. That's because some of those cases are settled, and the settlements are often times confidential. In other instances, the results of the trial simply don't make the news.

So I was really pleased this morning to read in one the bulletins I receive from the National Employment Lawyers Association about the fantastic verdict on Monday for Vicky Crawford, the plaintiff in the landmark United Supreme Court decision Crawford v. Metropolitan Government of Nashville and Davidson Cty .

Here's what happened in the case.

Facts Of The Case

In 2002, the Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro") began looking into rumors of sexual harassment by the Metro School District's employee relations director, Gene Hughes.

When Vicky Crawford, a 30 year Metro employee , was asked whether she had witnessed "inappropriate behavior" on the part of Hughes, Crawford described several instances of sexually harassing behavior including instances where Hughes: 

• repeatedly put his crotch up to her window and

• entered her office and grabbed her head and pulled it to his crotch

Two other employees also reported being harassed by Hughes.

Metro took no action against Hughes, but fired Crawford and the two other accusers soon after finishing the investigation.  Metro claimed it fired Crawford for embezzlement.

Crawford filed a lawsuit claiming that she was fired in retaliation for her report about Hughes's behavior in violation of Title VII of the Civil Rights Act of 1964.

Title VII's Anti-Retaliation Provisions

Title VII has two provisions which prohibit retaliation in employment discrimination cases and make it unlawful for an employer to discriminate against any of its employees because:

1. he or she "has opposed any practice which is unlawful" under Title VII
   
2. he or she has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter"

These provisions are commonly known as the "opposition clause" and the "participation clause".

The District Court and Sixth Circuit Decisions

The District Court granted summary judgment in favor of Metro. It held that Crawford did not satisfy the opposition clause because she had not "instigated or initiated any complaint", but had "merely answered questions by investigators in an already-pending investigation, initiated by someone else."

The District Court also concluded that Crawford's claim failed under the participation clause because it held that the only circumstances in which an employee would be protected from retaliation for participation in an employer's internal investigation was where "the investigation occur[ed] pursuant to a pending EEOC charge."

Crawford appealed and the Sixth Circuit Court of Appeals affirmed on the same grounds.

Crawford next filed a petition for certiorari requesting that the United States Supreme Court accept the case. The petition was granted.

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EEOC Settlement Shatters Glass Ceiling

The Equal Employment Opportunity Commission announced a whopping 19 million dollar settlement of a class action "glass ceiling" lawsuit against Outback Steakhouse last week.

The lawsuit involved a class of female employees who claimed that they were illegally denied:

• equal opportunity for advancement

• promotional opportunities to high level profit sharing management positions
  

• favorable job assignments, particularly, kitchen management experience, which was required for employees to receive consideration for top restaurant management positions

Stuart J. Ishimaru, EEOC Acting Chairman had this to to say in conjunction with the announcement:

There are still too many glass ceilings left to shatter in the workplaces throughout  corporate America. ...

Hopefully this major settlement will remind employers about the perils of perpetuating promotion practices that keep women from advancing at work.

Let's hope so. It's been almost 30 years since the Wall Street Journal popularized the term "glass ceiling" in an article describing the invisible barriers that women confront as they approach the top of corporate hierarchy.

The Federal Glass Ceiling Commission was created by the Civil Rights Act of 1991 and issued several reports between 1991 and 1996. The last report noted that among Fortune 500 companies:

• 95 -97% of senior managers were men

• 97% of male top executives were white

• 95% of the three to five percent of the top managers who were women were white
  

I don' t know how much better the data would look today but my bet would be that the difference wouldn't be significant.  No doubt  ladies -- after all of these years, we still have a long way to go.

I have talked to hundreds of women through the years who confront these issues at work each day. Many just don't want to rock the boat to fight for the promotions they deserve -- and that's understandable.

That's why cases like this one are so important. Three cheers for the courageous women who brought this class action lawsuit and the EEOC's vigorous pursuit of equal opportunity for women.

 image: pulse.ncpolicywatch.org/wp-content/uploads/feminis_difference_lg.jpg 

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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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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.
 

image:blog.prospect.org   images1.wikia.nocookie.net

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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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Did the Supreme Court Discriminate Against Victims of Age Discrimination?

The only good thing to say about the new age discrimination case of Gross v. FBL Financial Services, Inc. is that it will be gone in a flash. 

There are so many things wrong with it that it's hard to know where to begin, and because I really do believe that it will be legislatively overruled in the very near future, I don't want to beat it to death.

Let me say this. For those immersed in discrimination law, the opinion and the dissenting opinions are a must read.

For the rest of the country, I believe that the decision will have little impact and there are several reasons why that's so.

Case Background

The question before the Supreme Court was whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed motive instruction in a suit brought under the Age Discrimination in Employment Act.

It's a pretty dry academic issue with little to no practical effect in the real world of age discrimination litigation. 

For those interested in the background of the issues presented in the case, you can take a look at the article I wrote on the case when it was argued in March.

What The Court Did In The Gross Case

Instead of deciding the issue before it, the Court did two really strange things in this case:

1. It decided an entirely different issue than the question accepted for review -- one that was not properly presented or briefed.
   
2. The issue it chose to rule on manifested a complete disregard for Supreme Court precedent and Congressional intent.

Here's an attempt at an explanation.

Title VII of the Civil Rights Act of 1964 says that a person can't be discriminated against  in his/her employment "because of " his/her race, color, sex, religion or national origin.

The Age Discrimination in Employment Act ("ADEA") was passed in 1967.  Like Title VII, the ADEA prohibits discrimination in employment  "because of " age.

The Supreme Court has interpreted the "because of" language and so has Congress. 

The issue first came up for interpretation before the Supreme Court in the Price Waterhouse case in 1989.  In that case, Justice Kennedy pushed for a "but for" standard which meant that the plaintiff in a Title VII case would have to prove that "but for" his race (sex, national origin, religion, etc.) he would not have been terminated (demoted, transferred, etc.).

The Price Waterhouse decision rejected the "but for" standard and held that the plaintiff in a Title VII employment discrimination case bears the burden of  proving that membership in the protected class was a "motivating factor in the employment decision" in order to prove that he or she was discriminated against because of it.

Congress ratified the "motivating factor" interpretation when it passed the Civil Rights Act of 1991.The precise language of the statute is as follows:

An unlawful employment practice is established when the complaining party demonstrates that race, color religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

What happened in the Gross case last week is that the majority resurrected the"but for" standard and held that:

To establish a disparate treatment claim under the plain language of  the ADEA, the plaintiff must prove that age was the "but-for"cause of the employer's adverse decision.

It's important to point out that Title VII and the ADEA have previously been interpreted uniformly by courts throughout this country including the Supreme Court.

After all discrimination is discrimination, and it make no sense to use different methods, burdens, or standards of proof for age discrimination cases than sex or race discrimination cases, and it's not been done before.

 Why The Decision Makes No Sense

For all of the reasons why the majority opinion written by Justice Thomas (joined by guess who) is in my opinion, just  plainly wrong (there are other words I would love to use but I am constrained to be respectful) I recommend that you take a look at  Justice Stevens scathing dissent. Here's a glimmer:

The Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae.  It's failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible.

Unfortunately, the majority's inattention to prudential Court practices is matched by its utter disregard our our precedent and the Congress' intent.

Not only did the Court reject the but-for standard in [Price Waterhouse], but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII.

The Court's endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law. 

I disagree not only with the Court's interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. 

(Justice Souter agreed with Justice Stevens and also wrote a separate dissent. He raised additional problems with the "but for" language -- not the least of which is that it's a tort concept of causation that has no place in the actual context of a discrimination case and its proof.)

What's Coming

The talk has already started about a Congressional bill which will overturn the decision. As reported in the Washington Times  on Friday:

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Judge Samuel Kent was appointed to the bench for life by George Bush in 1990. For almost two decades, he served as the only federal judge in Galveston, Texas where he wielded great authority and "created a culture of fear."

On Monday, Judge Kent was sentenced to 33 months in prison for obstruction of justice because he sexually harassed court employees and lied about it to judges who investigated his misconduct.

Kent is the first federal judge in history to be indicted in connection with sexual crimes. Here's the story -- and it's a big one.

Two years ago, Cathy McBroom, Judge Kent's case manager, filed a sexual harassment complaint against Judge Kent with the 5th Circuit Court of Appeals. According to the Houston Chronicle:

She said the incident that prompted her to action — though it was not the first time Kent attempted to assault her — came in March 2007 when McBroom was summoned to Kent’s Galveston chambers.

She says the judge, a foot taller and 150 pounds heavier, forced his mouth on her breast and pushed her head toward his crotch with an explicit and obscene oral order. She fled in tears.

The first incident occurred in 2003.  At that time, according to the Chronicle:

 The judge returned from lunch that day and made a bizarre request for McBroom to show him the court’s exercise room ...

He pinned her to the floor, removed her shirt and only allowed her up when she begged and then threatened to scream.

Judge Edith Jones, Chief of the Fifth Circuit Court of Appeals, oversaw the panel of judges that investigated the accusation.

Following the investigation, Judge Kent was reprimanded, suspended for four months without pay, and transferred to Houston.

It turns out the Judge Kent lied to the panel about his sexual advances involving a second employee, his secretary Donna Wilkinson.

According to the NY Times story, Kent told the panel that the extent of his advances towards Wilkerson was one kiss. The indictment said that Kent repeatedly fondled Wilkerson against her will.

Kent eventually admitted to molesting both McBroom and Wilkerson. In a deal with prosecutors in February, Kent plead guilty to obstruction of justice as his trial was scheduled to begin.

In exchange, the government agreed to drop five charges that he had repeatedly groped his secretary and his case manager, touching their genitals and breasts against their will.

The sentencing hearing was on Monday, and both women made statements.The  Chronicle reported that Ms.McBroom expressed anger over the fact that Kent attempted to portray her as an enthusiastically consensual and spurned lover:

Being molested and groped by a drunken giant is not my idea of an affair  .... I will forever be scarred because of what happened in Galveston.

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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.

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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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What if your employer goes into your personal e-mails and tries to use them against you?  According to the Fourth Circuit Court of Appeals case of Van Alstyne v. Electronic Scriptorium, Ltd. your employer could get involved in a big legal nightmare it never imagined.

As very well put by Frank Steinberg at the New Jersey Emplyment Law Blog  I doubt whether ESL's president thought that he was letting himself in for this kind of trouble when he decided to peruse the private e-mails of the object of his office affections.

Here's what happened in the case.  Bonnie Van Alstyne worked for Electronic Scriptorium Limited ("ESL")  a small data conversion company owned and operated by a man named Edward Leonard and his wife Brett. Van Alstyne was a friend of the family and was hired to be the  Vice-President of Marketing.

According to Van Alstyne, during the time she worked at ESL Leonard sexually propositioned her. She rejected his advances. Five months later she was terminated. 

Van Alstyne  filed a sexual harassment charge with the Equal Employment Opportunity Commission. She also filed several other claims for benefits and unpaid commissions in Virginia state court.

In what appears to be a purely vindictive move, ESL sued Van Alstyne in a separate case in Virginia state court.  During the depositions in the case, ESL's counsel started asking Van Alstyne questions about various e-mails which were marked as exhibits.

It turns out that these e-mails were from Van Alstyne's personal e-mail account that Leonard had improperly accessed.

By way of background, Van Alstyne had a company e-mail account during the time she worked at ESL.  Like many employees, Van Alstyne also had a private password-protected e-mail account which she used to handle personal matters from time to time as needed (hers was with AOL).

When Leonard got caught, he first said that he only had a few of  Van Alstyne's personal e-mails. That statement turned out to be "not entirely true" according to the Court:

Leonard ultimately admitted to accessing Van Alstyne’s AOL account at all hours of the day, from home and internet cafes, and from locales as diverse as London, Paris, and Hong Kong. During discovery, Leonard produced copies of 258 different emails he had taken from Van Alstyne’s AOL account.

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The Sixth Circuit Court of Appeals, in  Hamilton v. General Electric, issued a very interesting employee rights decision this month that can be helpful to both employees (and their lawyers) and instructive to their employers.

Jarret Hamilton worked for General Electric for over 30 years.  He had a relatively clean record of employment until 2004 when things began to deteriorate.  Because one of the managers was out to get him, according to Hamilton, he was written up several times which resulted in his termination.

After the termination, the union intervened and Hamilton, GE and the union signed a Last Chance Agreement.  A Last Chance Agreement  ("LCA") is often used in union settings in situations involving alcohol or drug abuse, misconduct consisting of harassment, absenteeism, or repeated violations of workplace rules. 

Last Chance Agreements work like this:

1. the employee engages in some misconduct;
2. the union negotiates the LCA with the employer on behalf of the employee;
3. an agreement  is entered into which gives the the employee his job back and
4. contains language specifying that if the employee violates any part of the agreement, the employee will be immediately fired  (and this time it's for good) 

In Hamilton's agreement, Hamilton got his job back on the condition that he would comply with all of GE's rules. If any of the rules were violated, Hamilton would be subject to immediate termination.

Hamilton's agreement also contained a provision which said that if GE did terminate him, Hamilton agreed that no legal action regarding the discharge would be filed.  Hamilton signed the agreement and he went back to work.

Everything was fine for about a year and then other incidents occurred which led to Hamilton's suspension. Hamilton believed he was being discriminated against because of his age and filed a complaint of age discrimination with the EEOC as a result. When he returned to work after the suspension, and after the filing of the EEOC complaint, the harassment got much worse according to Hamilton's testimony, all of which culminated in his termination.

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The Wall Street Journal  Law Blog  today discussed a Wall Street Journal article about the disproportionate rate at which plaintiffs' employment  discrimination cases are lost in federal court and asked: Is the federal bench biased against discrimination cases?  As reported:

From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, plaintiffs in other cases not involving alleged job discrimination enjoyed a 51% win rate, according to this study due to be published later this month by the Harvard Law & Policy Review, the official journal of the American Constitution Society for Law and Policy. 

This is no coincidence. To those of us who have been representing employees in discrimination cases for many years the data comes as no surprise.  We know this because we have lived it. 

Our experience is that many federal judges are hostile to our cases and so are their law clerks.  All you have to do is read the comments to the WSJ Law Blog  today where the former federal law clerk refers to these cases as "dogs" to get a flavor of the attitude.

It is indisputable that far too many federal judges decide to disregard the Federal Rules of Civil Procedure and Evidence when it comes ruling on discrimination cases:

• Rather than let the juries decide when material facts are in dispute as the rules require, judges routinely decide to parse through the evidence, weigh each piece separately, and decide why each is not enough to support a claim.  
• They routinely and improperly assess the credibility of the testimony, a task specifically assigned to juries not judges.
• They routinely disregard the employee's evidence, and that of their co-workers, while giving credence to the self serving evidence of the employer. 
• Even when there is direct evidence of discrimination -- like "you're too old to do this job" -- or "women just be at home with their kids"-- it will often be dismissed as a "stray remark" too remote in time to be considered, or not made by someone influential enough in the decision.
• In sexual harassment cases, the judges often decide that the harassment may indeed have occurred but that it wasn't severe enough for a jury to consider.

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