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.

The Sixth Circuit Reverses

Burden of Proof Under The Title VII  And The ADEA

Under McDonnell Douglas, a plaintiff may establish a prima facie case of discrimination in a failure to promote case when he:

  • is a member of a protected class
  • objectively qualified for the position
  • considered for but is denied the promotion
  • an individual outside of plaintiff’s protected class is selected for the position

Once the plaintiff presents a prima facie case of discrimination, the burden shifts to the employer to articulate a nondiscriminatory reason for its action. In order to overcome summary judgment, the plaintiff must produce evidence which can rebut the employer’s explanation demonstrating pretext – which means “only enough evidence … to rebut, but not to disprove, the defendant’s proffered rationale.”

A plaintiff can prove pretext with evidence that the employer’s stated reason for its adverse business action either

  • has no basis in fact
  • was not the actual reason, or
  • is insufficient to explain the employer’s action

It’s worth noting that the Sixth Circuit in this decision joined a number of other circuits in holding that age discrimination claims -- post Gross -- should continue to be analyzed under McDonnell Douglas.

The Court’s Analysis Of The Evidence

Since the Defendant conceded that Bartlett established a prima facie case of discrimination the appeal turned on Defendant’s explanation for its decision, and whether Bartlett presented sufficient evidence of pretext to rebut it.

As to its reason, Defendant claimed that Angela Lucas was the best qualified candidate based on the written submissions of the applicants and Lehman’s personal knowledge of their background, performance, work product, and communication abilities.

It further claimed that Lucas was highly motivated, very experienced and a strong communicator who had earned performance awards and commendations of her peers.

Bartlett, it claimed in contrast, was an average employee who lacked a sufficient background in contract negotiations as well as a strong writing ability.

Bartlett offered several grounds of support for his argument for that Defendant’s reasons were pretextual.

Relative Qualifications

As the Court noted, the relative qualifications of applicants as well as discriminatory remarks may establish pretext in a failure to promote case.

In this case, the Court pointed to:

  • Bartlett’s 24 years of experience as a contract administrator: Lucas had 8
  • Bartlett’s superior educational credentials including a bachelor’s degree and advanced course work: Lucas did not graduate from college
  • Bartlett’s communication skills, as well as those of Greenberg, which were satisfactory if not superior to Lucas’s as evidenced by favorable performance reviews, education credentials, and scholarly publications and familiarity in the area of contract negotiations.

The Court stated:

Construing the facts in the light most favorable to the Plaintiff, we find that while Plaintiff may not have been a “plainly superior candidate” that rendered a DCMA’s promotion decision unreasonable on its face …Plaintiff was as qualified if not more qualified than Lucas.

Although this finding does not conclusively establish pretext, it warrants denial of summary judgment where other probative evidence of discrimination is presented.

Discriminatory Remarks

As the Court noted, discriminatory remarks may constitute direct evidence of discrimination and also serve as evidence of pretext.

In this case, Bartlett presented evidence that his supervisor, Gail Lewin, and the selecting official Kathleen Lehman:

  • informed him that 34 years on the job was enough
  • joked about whether he had taken up “antiquing or traveling or something like that”
  • suggested that he should retire – a topic which Bartlett had neither broached nor considered

The Court stated:

Because these statements were made by DCMA decisionmakers just weeks before the promotion decision and because the ostensible motivation of the comments was to hasten Plaintiff’s departure from the agency, these remarks provide strong ‘probative evidence of pretext.’

Furthermore, when coupled with record evidence that Plaintiff was as qualified if not more qualified that the selectee, these statements created triable issues of fact on the question of pretext.

Defendant’s Explanation Was Not Believable

In addition, the Court held that Bartlett had presented evidence of pretext because the reason given for its failure to promote him was not credible.

As the Court noted, Lehman testified that she made the decision that Lucas was the best qualified candidate without conducting interviews because she was familiar with the applicants experience, backgrounds, and competency. However, when asked, Lehman was unable to answer basic questions about the candidates’ qualifications.

The Court noted:

The fact that Lehman was unable to describe the candidates’ credentials creates a triable issue of fact as to the actual basis for Defendant’s promotion decision, suggesting it was pretext for discrimination based on sex and age.

In sum, the Court concluded that Bartlett presented sufficient evidence to suggest that DCMA’s proffered explanation for its promotion decision was pretextual, and had no basis in fact. Accordingly, DCMA was not entitled to summary judgment.

The case was reversed and remanded for trial.

Take Away

This case is a good example of something that’s often wrong with many federal court decisions when it comes to employment discrimination cases.

When reviewing summary judgment motions, trial court judges are, according to the Supreme Court “required to view all facts and draw all inferences in favor of the nonmoving party.” In employment discrimination cases, the nonmoving party is almost always the plaintiff employee.

It’s no secret to plaintiffs' employment lawyers that, for some reason, many trial court judges fail to abide by this requirement in case after case and instead seem to draw all inferences in favor the employer.

The result of what appears to be this employer oriented approach in discrimination cases, or as some call it  -- a hostility on the federal bench to employment cases ---is a clogging of the docket with summary judgment motions and appeals, as well as considerable delay and expense to both sides.

It also encourages management side lawyers to file summary judgment motions in every case no matter what record of evidence has been established by the plaintiff because they just might win – and just might get affirmed or the employee might just get worn down and give up.

Mr. Bartlett filed his lawsuit in 2007. The events giving rise to claim occurred in 2005. While it’s a great victory to have won the reversal in the Court of Appeals, let’s not forget that it’s almost 2011 – and that all he has won thus far is his right to get a trial and have his case decided by a jury.

The reality is that if someone chooses to litigate an employment discrimination case, it's virtually certain that it's going to be a long road to justice.

images:www.sastharam.com/

Employee Rights Short Takes: Wage Discrimination, Race Discrimination, Sexual Harassment And More

Here are a few Short Takes worth sharing:

Sex Discrimination

Ninth Circuit Certifies Wal-Mart Class Action: In Dukes v. Wal-Mart, a decision from the Ninth Circuit Court of Appeals on April 26th, the Court certified a class in a Title VII lawsuit involving 1.5 million women seeking compensation for back pay. The Court remanded the case to the district court for a determination regarding punitive damages based upon several factors set forth in the decision. The next step is most likely a request for the Supreme Court to hear the case. For more about the case, see the California Punitive Damages Blog.  For an interesting story about Betty Dukes, the Wal-Mart greeter and lead plaintiff  see the article here from the Huffington Post. This case is reported to be the largest class action in history.

Sexual Harassment

EEOC Collects $471,000 In Sex Harassment Case: The EEOC reported last week that Everdry Marketing and Management paid $471,096 in damages, plus $86,581 in post-judgment interest to 13 victims of sexual harassment. The payout stems from a four week jury trial in Rochester, New York and a Second Circuit Court of Appeals decision which affirmed the award in favor of the plaintiffs. The case involved a prolonged period of physical and verbal sexual harassment of mostly teenage telemarketers by male managers and co-workers at Everdry’s Rochester, N.Y. location including demands for sex, groping, sexual jokes and constant comments about the bodies of women employees. The story presents another example of the widespread problem of teenage sexual harassment in the U.S

Has The Sixth Circuit Had An Attitude Adjustment?

Two cases last month out of the Sixth Circuit  Court of Appeals made me think that attitudes on employment discrimination cases may be shifting.

Summary Judgment Reversed In Race Discrimination Case: In Thompson v UHHSS Richmond Heights Hospital, Inc, the plaintiff was terminated from her position as a food production supervisor when she was told that her position was eliminated in a restructuring. Thompson believed  that she was selected for termination because of her race and filed a lawsuit. The district court granted summary judgment against her. The Sixth Circuit reversed finding that evidence of Thompson’s superior qualifications in comparison to the employee who assumed most of her job duties showed that she was replaced and also showed pretext. In addition, evidence that a supervisor said to “get rid of” certain black employees whom he called “troublemakers,"  which the district court gave “little weight," corroborated accusations of discriminatory behavior according to the Court.

Sexual Harassment Verdict Affirmed On Appeal: In West v. Tyson Foods,Inc. the Court affirmed a sexual harassment award including $750,000 for past and future mental distress, and $300,000 in punitive damages. In addition to great language on damages, the Court also addressed the sufficiency of reporting sexual harassment to one supervisor as constituting “notice” and a “missing evidence” jury instruction from which the jury is entitled to draw a negative inference. The plaintiff, an assembly line worker, was subjected to a barrage of verbal and physical harassment – 10 to 15 times per shift -- during her five weeks of employment at the Tyson Foods plant in Robards, Kentucky. The jury awarded more in damages that West's lawyer requested which the Sixth Circuit both addressed and confirmed.

 

 images: www.hickmankytourism.com

                www.reclaimdemocracy.org

FMLA Retaliation Victim Wins Appeal In Sixth Circuit

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.

The District Court Finds For Kmart

Under the FMLA, an eligible employee:

  • may take twelve week s of unpaid leave in certain situations, including a serious medical condition
  • is entitled to return to his or her position or to an equivalent position held by the employee when the leave commenced

 An employer may not:

Kmart argued that it would have fired Cutcher even if she had not been on FMLA leave. The district court agreed and threw out the case on summary judgment. Cutcher appealed.

The Sixth Circuit Court Of Appeals Reverses

The FMLA Interference Claim

Cutcher argued both in the district and the Court of Appeals  that a jury question was created as to whether she would have been fired had she not take FMLA leave because of:

  • Kmart’s post-hoc rationalization of their lower RIF appraisal score, in light of the fact that there had been no prior documented complaints against her, and
  • the  “LOA” notation written n the comment section of the Asssociate Performance Recap Form

The Sixth Circuit agreed:

Given Cutcher’s prior annual appraisal score, the minimal amount of time that passed between her most recent annual appraisal and the RIF appraisal, Kmart’s admission that Cutcher’s performance did not change during that short period of time, the inclusion of the ‘LOA” notation on the Associate performance Recap Form, and the lack of any documented evidence demonstrating a prior concern with her job performance, a jury could infer that her leave status impacted her RIF appraisal ratings, thus leading to her termination.

The FMLA Retaliation Claim

A FMLA retaliation claim requires a plaintiff to establish that:

  • she was engaged in an activity protected by the FMLA
  • she suffered an adverse employment action 
  • there was a causal connection between her protected FMLA activity and the adverse employment action

If this showing is made, the burden shifts to the employer to establish a legitimate, non-discriminatory reason for the adverse employment action. If the employer does this, the burden  shifts back to the plaintiff to prove that the employer’s reason is pretextual – in other words, not true or not worthy of belief.

Cutcher argued, and the Sixth Circuit agreed, that the same evidence which supported the connection between her FMLA leave and the termination demonstrated that Kmart’s proffered legitimate reason for firing her was pretextual.

It stated:

Specifically, the following facts show pretext: the temporal proximity between her leave and the termination; the lack of documentation to corroborate her lower RIF appraisal scores; the lack of temporal proximity between the events that Kmart alleges justified her lower RIF appraisal scores and her termination; her documented favorable work history; the discrepancy between her prior annual appraisal an her RIF appraisal, and the “LOA” notation next to Cutcher’s name in the Impacted Associates Form.

The district court rejected these proffered reasons, but Cutcher has produced sufficient evidence – listed above – from which a jury could conclude that Kmart used the RIF as a means of terminating her. ......

Although she has not presented direct evidence to support that argument, the circumstantial evidence creates a question of material fact for the jury.

For the reasons stated above, we REVERSE the judgment of the district court ....

Conclusion

There are two things that strike me about this case.  

For one, it is hard for me to imagine that someone at Kmart who had some understanding of employment law didn't realize that firing someone on medical leave -- who consistently had very good employment evaluation -- might create a legal problem (or perhaps they just didn't care for one reason or another).

Two, although I have seen this so many times I couldn't begin to count, it still angers me when a district court embraces the employers version of the evidence,  completely discounts the employees evidence including any inferences which may be drawn from it, and grants judgment in favor of the company.

Even though the Supreme Court sent a crystal clear message in the Reeves v Sanderson Plumbing case (10 years ago ) that weighing of evidence by the district court is wrong  and juries are supposed to decide these cases -- not the federal judges or their law clerks -- this pernicious anti-employee summary judgment practice stubbornly persists.

image: 4.bp.blogspot.com

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.

Superior Qualifications

As the Court pointed out, Risch had superior qualifications for the position of detective than two of the male candidates (Moore and Spencer) promoted to the position in 2005. Her scores were better and she had greater experience in the department.

As the Court stated:

Taking the facts in the light most favorable to Risch … it is clear that Risch was as qualified as or better qualified than either Moore or Spencer. 

Discriminatory Remarks

The Court noted that male officers frequently made degrading comments regarding the female officers. Some of those remarks included the following:

  • "The chief will never have a female officer on the command staff"
  • "None of you {female officers} will ever go anywhere …"
  • A majority of male officers told Risch that women do not belong in the police force

As the Court stated:

We have held that discriminatory remarks, even by a nondecisionmaker, can serve as probative evidence of pretext ….

The statements in this case evidence a discriminatory atmosphere in the Department in which male officers frequently made derogatory or discriminatory remarks about female officers. …

We do not view each discriminatory remark in isolation, but are mindful that the remarks buttress one another as well as any other pretextual evidence supporting an inference of discriminatory animus.

Other Evidence Proving Discrimination

The Court also made note of other evidence it considered to prove a “general atmosphere of discrimination" including discrimination against women in duties, shift assignments, and work distribution.

Part of the evidence was that Lieutenant Foster, who held a senior position in the command staff, gave the men:

  • any kind of detail they wanted
  • all of the plum assignments

The assignments and the work the men didn’t want went to the women.

This evidence, according to the Court, supported Risch’s claim that she was discriminated against regarding her promotion.

As the Court stated (citing its decision in Ercegovich v. Goodyear Tire &Rubber Co.interestingly written by the same judge as this case):

We have explained that management’s consideration of an impermissible factor in one context may support the inference that the impermissible factor entered the decisionmaking process in another context.

In light of the above evidence ... we conclude that Risch has produced sufficient evidence to establish a genuine issue of material fact concerning whether the Department's proffered legitimate, nondiscriminatory reason was pretextual.

What's Important About The Case

What's important about the case is that the Court broadly looked at a combination of evidence about Risch's experiences at work (as well as that of other women) and used it to hold that Risch could challenge the department's failure to promote her. That evidence included:

  • a record of comparative qualifications
  • discriminatory statements by decisionmakers and others in the department 
  • an atmosphere of discrimination experienced by Risch and co-workers
  • the lack of women in command positions
  • proof that Risch was arguably better qualified than male candidates

The federal district court disregarded much of the evidence presented by Risch and that, according to the Sixth Circuit Court of Appeals, constituted reversible error.

The simple fact that the Court of Appeals considered all of the evidence of gender discrimination -- instead of narrowly limiting the inquiry to the reasons given by the employer for the denial of the 2005 promotion -- is what's really important about this case.

It's been historically quite difficult for women to prove that they they were denied promotions which went to less qualified male counterparts.

The Sixth Circuit’s opinion in this case --  and its broad interpretation of what kinds of evidence can support these claims --  should go a long way in helping women, as well as other victims of discrimination, get their cases in front of juries where they properly belong.

 image:img.alibaba.com

Harassed Female Wins "Locker Room" Hostile Environment Case

For all employees who are subjected to a sexually hostile work environment, the recent case of Gallagher v.. C.H. Robinson  from the Sixth Circuit Court of Appeals is fantastic news -- and that's an understatement.

There are so many women who are faced with a regular onslaught of  dirty jokes, pornography, demeaning references about women, and sexual bantering in the workplace.  For those victims, this case is a godsend.

Here's what happened in the case. 

Julie Gallagher worked for C.H. Robinson Worldwide Inc. in a sales position in the Cleveland office. The area in which she worked had 20 employees and 3 support staff.

The sales staff worked in cubicles that were organized in pods in an open floor plan. Short dividers between the cubicles provided little privacy.

During the four months during which Gallagher worked at C.H.Robinson ("CHR") she described a “locker room” atmosphere characterized by unprofessional behavior and an environment that was hostile to women. 

According to the evidence the work atmosphere was filled with:

  • Prevalent use of foul language
  • References to female customers, drivers, and co-workers as" bitches, whores, sluts, dykes and cunts"
  • Pornography and nude pictures of girlfriends in various sexual poses
  • Dirty jokes and graphic discussions of sexual liaisons, fantasies and preferences on a daily basis

In addition, Gallagher was personally:

  • Called a bitch in anger on several occasions
  • Called fat and referred to as a “heifer with “milking udders”
  • Told that by hiring her CHR covered it’s “girl quota and fat quota”

Gallagher complained frequently to the branch manager, Greg Quest, but things only got worse. Four months after starting, and following an incident during which some drunk male so-workers “flipped her off”, she finally quit and took a job working for a former employer.

Gallagher filed a case for hostile environment sexual harassment under both state (Ohio R.C. 4112.02)  and federal law (Title VII of the Civil Right Act of 1964).

What's truly shocking about this case is that the district court judge -- for reasons that I am at a complete loss to genuinely understand -- threw out the case.

Fortunately, the Sixth Circuit wrote a fantastic opinion reversing the district court judge. Here are the highlights and the meat of the decision -- all of which will be very helpful to other victims of this sort of disgusting conduct in the future.

In order to prove a sexual harassment case, the plaintiff must prove that

  1. she is a member of a protected class (female)
  2. she was subjected to harassment either through words or actions, based on sex
  3. the harassment had the effect of unreasonably interfering with her work performance and creating an objectively intimidating, hostile, or offensive work environment and
  4. there exists some basis for liability on the part of the employer

The district court, in placing it's remarkable spin on the facts, and applying that spin to the elements of  the claim set forth above, made several reversible errors.

Mistake #1:  The district court held that the conduct was not "based on sex" based on the following conclusions:

  • Because the offensive conduct Gallagher complained of was in an open forum with both men and women, it was not based on sex
  • A person can't prevail on a discrimination case which is based on indiscriminate conduct.

Not so according to the Sixth Circuit which held (joining the 2nd and 11th Circuits):

Even though members of both sexes were exposed to the offensive conduct in the Cleveland office, considering the nature of the patently degrading and anti-female nature of the harassment, it stands to reason that women would suffer, as a result of the exposure, greater disadvantage in the terms and conditions of their employment than men.

In other words, since women would find the sexually offensive comments more offensive than men would,  and suffer more harm than men because of it -- it is discrimination based on sex.

The defense that someone may be an "equal opportunity curser" or "equal opportunity harasser" is dead -- and it's about time.

Mistake #2: The district court held that the harassment was not severe or pervasive based on the following conclusions:

  • most of the offensive conduct was not directed at Gallagher
  • the harassment was not objectively hostile
  • Gallagher's work performance didn't suffer

Wrong on all three points according to the Sixth Circuit which said:

Whether the offensive conduct was intentionally directed specifically at Gallagher or not, the fact remains that she had no means of escaping her co-workers' loud insulting language and degrading conversations; she was unavoidably exposed to it.

Considering the totality of the circumstances as described in Gallagher's deposition, the conclusion is inescapable that a reasonable person could have found the Cleveland office -- permeated with vulgar language,demeaning conversations and images, and palpable anti-female animus -- objectively hostile ...

Considering Gallagher's description of the offensive conduct to which she was exposed , her reaction can hardly be dismissed as implausible, unreasonable, exaggerated or hypersensitive. Nor is it improbable that the hostility and antagonism she experienced rendered her work more difficult ....

We therefore conclude that the district court erred in its determination that Gallagher presented insufficient evidence that she was subjected to such severe and pervasive harassment  so as to unreasonably interfere with her work performance and create a hostile work environment.

Mistake #3: The district court held that there was no employer liability based on the following conclusions:

  • C.H. Robinson had sexual harassment policies for reporting and Gallagher didn't follow them
  • reporting the misconduct  only to Greg Quast (the office manager) was unreasonable
  • C.H Robinson did not have notice of the harassment

Wrong again according to the Sixth Circuit Court of Appeals which wrote:

According to Gallagher's deposition testimony, Quast witnessed much of the harassing conduct and participated in some.  The facts substantiate a finding that Quast knew or should have known of the offensive conduct and of Gallagher's objection to it.

An employer is deemed to have notice of harassment reported to any supervisor or department head who has been authorized -- or is reasonably believed by a complaining employee to have been authorized -- to receive and respond to or forward such complaints to management.

 Because a reasonable  jury could find that C.H. Robinson knew or should have known of the sexual harassment Gallagher experienced and yet responded with manifest indifference or unreasonably, the district court's conclusion that the premises for employer liability are lacking is erroneous.

This case is a tremendous win:

  • It interprets Title VII consistently with it's purpose
  • It sets forth very clearly what kind of conduct can constitute a sexually hostile work environment and why that it is so
  • It puts the onus in these cases back on the employer where it belongs
  • It emasculates many of the contrived  and nit -picking employer defenses which too many judges have latched on to and used to throw these cases out

The bottom line is that no one should have to go to work and face what Julie Gallagher did. That's why we have laws which make a sexually hostile work environment illegal.

This decision should help make sure that others aren't subjected to the same miserable experience.

 image:www.maximumpc.com

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.

Not surprisingly, without some of his strongest evidence,  Cobbins lost his trial.  He filed an appeal on the grounds that that the trial court committed reversible error when it excluded his evidence. 

On April 2nd, the Sixth Circuit Court of Appeals found in his favor, reversed the lower court, and gave Cobbins the right to a new trial.

In his appeal, Cobbins claimed that his case was greatly harmed by his inability to enter Staggs' allegedly false promotion application into the record. The Court  agreed:

The district court erred in refusing to allow plaintiff to introduce into the record the employment application of a co- worker.  The document, if hearsay at all, falls within the exception for business records and possibly public records as well . .  and should have been admissible. . .

With respect to the warnings in the file, the Court had this to say:

On appeal, plaintiff argues that the trial court committed reversible error by excluding evidence of his former supervisor's "discriminatory animus and motive" toward African-Americans.  Plaintiff argues that this disparate treatment in discipline by his former supervisor is relevant in the current proceeding because Youcum's conduct marred his work record and his opportunity for promotion.

Plaintiff is not seeking to relitigate the claims from his earlier suit.  Plaintiff seeks only to demonstrate that certain conduct and actions of his supervisor at that time impacted his work record and promotion chances; and such evidence is, therefore, relevant in this case.

We agree with Plaintiff. Contrary to defendant's argument, collateral estoppel does not bar evidence of plaintiff's former supervisor's animus that may have adversely impacted his work record and chances for promotion because the judgment in the first lawsuit was not on the merits.

When you read the decision, you really have to wonder what the trial court judge was thinking. TDOT said it chose one employee over another because he had more eduction.  TDOT'S own records showed that was false, yet the court would not allow the jury to see the evidence.

TDOT said that one employee was chosen over another because of warnings in a personnel file.  TDOT's own records showed that a previous discrimination and retaliation charge had been filed against that supervisor.  Yet once again, the judge would not let the jury hear the evidence.

I wrote an article about the bias of the federal bench a little while ago and the difficulty that employees who bring discrimination cases have in the federal courts in this country.  This case is a perfect example.

Although the ending is a good one in that the district court judge was properly reversed, it certainly would have been nice -- and certainly a whole lot more efficient -- if the plaintiff got a fair trial the first time around.

Image: www.kingsportmpo.com

Last Chance Agreement Can't Waive Future Claims

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.

Hamilton filed a lawsuit in federal court in Kentucky. Not surprisingly, GE argued that Hamilton had "waived his right to proceed to court by signing the Last Chance Agreement."

While Last Chance Agreements are generally held to be binding on the parties, both the district court and the Sixth Circuit Court of Appeals determined that the provision in Hamilton's LCA which barred him from bringing a lawsuit to challenge the discharge was not enforceable. Finding in favor of Hamilton the court held:

We have held that '[i]t is the general rule in this circuit that an employee may not prospectively waive his or her rights under Title VII...Both of the cases GE cites hold that when an individual is faced with a known violation, he or she may be able to waive his or her ability to pursue further legal actions relating to that past violation. Neither case, however, stands for the proposition that .. an employee can prospectively waive statutory claims relating to potential future violations.

Hamilton signed the LCA nearly a year before he was terminated, and the LCA does not represent his choice to forego future remedies based on GE's future statutory violations.  Accordingly, because Kentucky law does not dictate the contrary result, we conclude that Hamilton's LCA does not bar him from pursuing this legal actions.

In reversing the district court, the Sixth Circuit also allowed Hamilton to proceed on his retaliation claim.

Last Chance Agreements can help employees keep their jobs and have a useful purpose. This is  particularly true in cases of alcoholism and substance abuse when employees are given a chance to get treatment and come back to work. LCA's were never intended to give employers a license discriminate. This case says that  language in LCA's which give employees their jobs back on the condition that they won't ever be able to sue for a wrongful discriminatory discharge will not be enforced.

image:http://www.listphilecom.