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.

The Lawsuit

Background

Chadid sued for gender discrimination under Massachusetts law. Like federal law,(Title VII)  the Massachusetts  anti-discrimination statute makes it illegal for an employer to refuse to hire or discharge from employment or discriminate against an individual because of the individual’s sex.

Like federal law, in cases that rely on circumstantial evidence, the court applies a three stage order of proof. In the first stage, the employee shows that:

  • she is a member of a protected class
  • performed the job at an acceptable level
  • was terminated
  • the position was filled with another individual with qualifications similar to plaintiff

These elements may vary depending on the facts of the case and vary slightly from one jurisdiction to another. Facts which establish these elements create an inference of discrimination.

In the second stage, the employer may rebut the plaintiff’s assertion of discrimination by articulating a lawful reason or reasons for its employment decision. In the third stage, the burden shifts back to the employee to demonstrate that the reason advanced by the employer was a “mere pretext” -- in other words, not true or not believable – from which the jury can conclude that the real reason was discrimination, or that discrimination was a motivating factor. (again, the language varies slightly from jurisdiction to jurisdiction)

In addition, there are two types of discrimination claims. First, there are claims of disparate treatment in which an individual claims that he was treated differently than a similarly situated employee who was not in a protected class (i.e. race, sex, disability, age, religion, nationality) Second, there are disparate impact claims, in which the plaintiff claims that an employment practice, while neutral on its face, has a disproportionately negative impact on a protected class. (for example, if a company has a policy of hiring only individuals that are 5 feet 4 inches or more, that policy would have an adverse impact on women)

In her disparate treatment claim, Chedid contended that the defendant treated her unfavorably based on a perceived stereotype that women with children are less capable of being skilled surgeons due to having family obligations.

In her disparate impact claim, the plaintiff claimed that the defendant’s policy of hiring only full time surgeons has a disparate impact on women with children.

The Court Rules In Favor Of Chedid In Its Summary Judgment Ruling

Disparate Treatment Claim

The defendants filed a motion for summary judgment contending that based on the evidence, Chedid had no legal claims as a matter of law. The Court denied the motion, and found in favor of the plaintiff on all counts – which means that Chedid has the right to take her case to a jury. With these facts, it seems to me that her chance of success in front of a jury is quite high, so the opinion is great news for Chedid.  

As the Court sets forth in its opinion, "an adverse employment action based on stereotypical belief that women with children will be less committed to their jobs due to their childcare responsibilities constitutes actionable sex discrimination." (citing Chadwick v. Wellpoint, see here) It was gender stereotyping which motivated the defendants according to Chedid. Any opinion which cites this language is important since "caregiving discrimination" -- a form of employment discrimination -- has been recently recognized and noted in very few decisions.

As to the defendants' arguments, the Court noted in part:

  • a jury could find that Chedid was at least as qualified as Dr. Greene, who was hired during that period of time
  • there was a dispute in the evidence as to whether Meara’s actual hiring practices were consistent with his stated criteria to hire only internationally known surgeons
  • the evidence showed that the physicians spent most of their time doing mostly simple procedures not the complex procedures Meara emphasized in his testimony
  • other physicians who worked part-time also had shortcomings in their performance
  • after Chedid tried to persuade her employer to allow her to work part time, she offered to work full time, and the hospital never followed up on her offer

The Court stated:

From these facts, the jury could find that Dr. Meara  gave at least one, if not two false and pretextual reasons for terminating the plaintiff, for reducing her privileges and denying her a bonus, purportedly because of her level of qualifications and her alleged refusal to work full time, despite her March 16, 2007 offer to work full time …..

The defendant’s motion for summary judgment of the plaintiff’s sex discrimination claim is therefore denied.

Other Claims

The Court also denied summary judgment or reserved judgment on other claims including:

  • a claim for disparate impact discrimination based on a policy which has a disparate impact on part-time employees
  • retaliation (“making things difficult for the plaintiff as a result of her asserting her sincere perceptions of gender discrimination”),
  • intentional interference with contract/advantageous business relations (her supervisor maliciously interfered with her contract -- discrimination may constitute malice)
  • breach of contract (patients were referred to Meara rather than Chedid; defendants failed to pay her a bonus and her share of profits for the 2006-2007 fiscal year)
  • breach of implied covenant of good faith and fair dealing (every contract has an implied covenant of good faith which prohibits a party from exercising its discretionary power to deprive the right of the other party to receive the fruits of the contract) Unlike Massachusetts, most states do not recognize this claim for employees --- particularly employees at will.

This means that Dr. Chedid has a right to gather more evidence regarding her disparate impact discrimination claim, and take the rest of her claims to the jury. It will be up to the jury to decide whether Chedid was discriminated against because of her gender, and whether or not she should prevail on her other claims for relief. As I stated above, on these facts it seems to me that her likelihood of success looks quite good.

Conclusion

There are so many cases where courts throw out plaintiff’s employment claims on summary judgment no matter how strong the evidence is. This case is an example of everything going right for the plaintiff and her lawyer.  It’s also another important win for working moms who face pervasive discrimination in the workplace.

images: www.nubar.com/realstock  noireventsgroup.files.wordpress.com

Employee Rights Short Takes: New Evidence Of Gender Pay Gap, Race Discrimination, Disability Discrimination And More

Here are a few short takes about employment discrimination stories that made the news this past week:

New Evidence Of Gender Pay Gap And Discrimination Against Mothers In Management

Women made little progress in climbing into management positions according to a new report by the Government Accountability Office yesterday.

As of 2007, the last year for which the data was available, women made up only 40% of managers in the United States work force compared to 39% in 2000. In all but 13 industries covered by the report, women had a significantly smaller share of management positions than men when compared to the overall workforce.

In addition, managers who were mothers earned 79 cents of every dollar paid to managers who were fathers.

The report was prepared at the request of Representative Carolyn Maloney, Democrat of New York, and chairwoman of the Joint Economic Committee for a hearing before that committee on Tuesday -- where witnesses  talked about the  "shockingly slow rate of progress"  for women in corporate management positions and the "motherhood wage penalty."

Several individuals who testified urged the passage of the Paycheck Fairness Act as a partial remedy to the issues surrounding gender discrimination in the workforce.

For more about the report read the NY Times article here.  For a copy of the report from Rep. Maloney’s website and more about the hearing read and watch here.

Employee With Multiple Sclerosis Settles Discrimination Case For $1.2 Million

An ex-employee of the Madison New Jersey Board of Education with multiple sclerosis settled her disability discrimination case for $1,200,000, including attorney fees, as reported yesterday by DailyRecord.com and Lawyers USA.  Disability discrimination is prohibited by the Americans with Disabilities Act.

Joan Briel, a former accounts payable secretary, was diagnosed with MS in 2002. She claimed that her employer retaliated against her by inappropriately increasing her workload, repeatedly harassing her and failing to take action on her requests for reasonable accommodation -- including her request to work on the first floor instead of the third floor.

Briel also claimed that the stress of the work environment caused her to relapse and that she was fired while she was on medical leave.

The case was heading for a jury trial when the settlement was reached. Ms. Briel will receive $412,000 in the settlement. Her attorneys will receive $877,303 for the work they did on the case. The court also awarded Briel over $43,000 in costs.

Plaintiffs in civil rights cases may recover attorneys’ fees – if they prevail -- in addition to their individual award in most cases. These legal provisions are intended to encourage attorneys to represent individuals who are unable to invoke the protection of civil rights laws because they can not afford a lawyer.

Discrimination cases are difficult to litigate and are often complex and protracted. Therefore, it’s not unusual for the attorneys’ fees ( on both sides) to be larger than the award, or greater than the amount in controversy.

This newly reported case is but one example of the potentially high costs to employers when employment discrimination cases are not resolved early.

EEOC Settles Race Discrimination And Retaliation Case For $400,000

The Cleveland office of the EEOC announced a $400,00 settlement of a class action race discrimination and retaliation case against Mineral Met Inc., a division of Chemalloy Company.

Evidence in the case showed that black employees were disciplined for trivial matters – such as having facial hair or using a cell phone -- while white employees were not disciplined for the same conduct. When one of the supervisors complained, it resulted in intensified racially discriminatory treatment and retaliation according to the EEOC.

The EEOC also charged that African-American employees were also subjected to other forms of racial harassment, including evidence that a white supervisor placed a hangman’s noose on a piece of machinery. (once again shocking that this is still going on)

Race discrimination in employment and retaliation for complaining about discrimination violate Title VII of the Civil Rights Act of 1964.

 images: www.house.gov  www.window.state.tx.us

Another Victory for Working Moms

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

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

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

Here’s what happened in the case.

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

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

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

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

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

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

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

1)   she belongs to a protected class

2)   she performed her job satisfactorily

3)   she suffered an adverse employment action

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

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

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

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

Gerving presented the following evidence of pretext:

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

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

3)   customer complaints were common

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

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

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

The Ninth Circuit Court of Appeals reversed stating:

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

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

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

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

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

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

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

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

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

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

 Image: api.ning.com