Adjunct Law Prof Blog

7th Holds Complaint About Sexual Harassment To Employer General Counsel Is Protected Under Title VII's Opposition Clause

Magyar v. St. Joseph, ___F.3d___(7th Cir. Sept. 12, 2008) is an interesting and lengthly case that reviews the elements of a retaliation claim under Title VII. The plaintiff alleged she was discharged for complaining to the hospital's general counsel that her boss did not adequately respond to her sexual harassment complaint. The court held that the plaintiff  established a prima facie case of retaliation.

The plaintiff complained to her supervisor about two instances of harassing conduct by her male coworker and the supervisor spoke to the abuser.The harassment stopped, but plaintiff was never informed of the resolution. As a result, about two months later, she escalated her concerns to the general counsel's office.

The majority rejected the hospital's contention that the plaintiff was merely complaining about her supervisor's complaint-management skills, not engaging in protected Title VII activity, when she escalated her harassment complaint past her supervisor. Judge Posner issued a lengthly dissent.

Mitchell H. Rubinstein

NJ Appellate Court Holds Failure To Have Sexual Harassment Policy Is Negligence

Cerdeira v. Martindale-Hubbbell, __A.2d___(N.J. App. Div. Sept. 18, 2008) is an interesting New Jersey appellate case of first impression.

Plaintiff was sexually harassed by a coworker for two years before complaining. The court held that plaintiff can go forward with her claim that her employer was directly liable for the harassment because it did not have an effective sexual harassment policy in place. As the court reasoned:

In Lehmann v. Toys 'R' Us, the Court recognized that
employer liability for hostile work environment claims may be
advanced under a negligence theory premised upon the employer's
failure to have in place effective sexual harassment policies
and that such claims may be based upon agency principles or
direct liability. 132 N.J. 587, 621-23 (1993). The Court
declined, however, to set forth a standard of negligence
governing such claims. Id. at 621. In our view, in the absence
of such an articulated standard, a negligence-based theory of
liability must be analyzed under traditional negligence
principles, which draw upon notions of fairness, common sense,
and morality. Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 401
(2006) (citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426
(1993)).

This N.J. appellatecourt concluded that the plaintiff raised fact issues as to whether the employer's broadly worded "code of conduct" regarding harassment provided a reasonable avenue through which the plaintiff could have voiced her complaints about her coworker. The court nonetheless stated: "The absence of an effective sexual harassment policy does not automatically constitute negligence, nor does the existence of such a policy demonstrate the absence of negligence."

Law review commentary on this issue would be welcome.

Mitchell H. Rubinstein

Dartmouth College Prof Looses ADEA Case

Sabinson v. Trustees of Dartmouth College, ___F.3d___(1st Cir. Sep't. 12, 2008) is an interesting decision. The First affirmed summary judgement over a professor's claims under Title VII, the federal age discrimination, and for retaliation, where: 1) plaintiff offered no direct evidence of religious, gender- or age-based discrimination; and 2) plaintiff's retaliation claim failed when absent a decision by plaintiff to retire, unwelcome assignments were inevitable regardless of the complaint. Specifically, the court held that the fact that plaintiff may have been treated unfairly was not necessarily proof of a discriminatory motive. As the court reasoned:

But, whether or not personal or professional hostility played a role in the assessment, federal law does not protect generally against arbitrary or unfair treatment in private employment, but only against actions motivated by listed prejudices such as race, age and gender. Hazen Paper Co., 507 U.S. at 609; Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 22 (1st Cir. 1999); Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st Cir. 1994). Discrimination is a form of unfairness; but not all unfairness is discrimination.

          Even if we were to assume that Sabinson has produced evidence of pretext, the problem is that Sabinson's evidence did not tend to establish a discriminatory purpose, but rather tended to establish that a preexisting animus against her (unrelated to discrimination) was the reason for the adverse action. Thus, in a sense, the existence of personal or professional hostility toward Sabinson based on other reasons tends to work against her claim of discrimination. Sabinson's case might well be stronger if, after raising doubts about the purported reason for her treatment, the only plausible reason left appeared to be discrimination.

Mitchell H. Rubinstein

EEOC Issues ADA Q and A Guide

On September 3rd, 2008, the U.S. Equal Employment Opportunity Commission (EEOC) issued a comprehensive question-and-answer guide addressing how the Americans with Disabilities Act (ADA) applies to a wide variety of performance and conduct issues. That guide is available here.

This guideline is very practical and well written. As an example, it provides the following with respect to the use of alcohol and drugs:

The ADA may protect a “qualified” alcoholic who can meet the definition of “disability.” The ADA does not protect an individual who currently engages in the illegal use of drugs,⁸² but may protect a recovered drug addict who is no longer engaging in the illegal use of drugs, who can meet the other requirements of the definition of “disability,”⁸³ and who is “qualified.” As explained in the following questions, the ADA has specific provisions stating that individuals who are alcoholics or who are currently engaging in the illegal use of drugs may be held to the same performance and conduct standards as all other employees.

Mitchell H. Rubinstein

9th Issues Primer On Subpoena Power of EEOC

Federal Express v. EEOC, ___F.3d___(9th Cir. Sept. 10, 2008), is an important decision for it reviews the subpoena power of the EEOC. As one could expect, this power is quite broad. The court described the applicable standard of review as follows:

As we have explained:
The scope of the judicial inquiry in an EEOC or any
other agency subpoena enforcement proceeding is
quite narrow. The critical questions are: (1) whether
Congress has granted the authority to investigate; (2)
whether procedural requirements have been followed;
and (3) whether the evidence is relevant and
material to the investigation.

Thus, the court held that the EEOC had the authority to issue a subpoena even after a right to sue was issued and the plaintiff filed suit in court.

Mitchell H. Rubinstein

Breaking News President Bush Signs ADA Amendments Act of 2008 Into Law

With all of the political and economic news going on an important piece of new legislation has largely been ignored by the media. On September 25, 2008, President Bush signed S. 3406, ADA Amendments Act of 2008 into law. Professor Alex Long just posted on  SSRN his essay forthcoming in the Northwestern University Law Review Colloquy, Introducing the New and Improved Americans with Disabilities Act:  Assessing the ADA Amendments Act.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

Federal Lower Court Recognizes Cause of Action For Transgender Discrimination

Schroer v. Billington, ___F.Supp.2d___(D.D.C  Sept. 19, 2008), is an important decision. The court held that a male-to-female transgendered job applicant was unlawfully denied a position at the Library of Congress based on sex. The Distict Court thus recognized a Title VII discrimination claim based on transsexuality.

The court rejected the library's defenses on the merits which included such as concerns about her ability to obtain a security clearance (a veteran who had security clearance as a male), her trustworthiness, and the potential that her transition would distract her from her job.

The court concluded that the applicant was entitled to judgment based on a Price Waterhouse-type claim for sex stereotyping. Significantly, however, the court went further, ruling the applicant was entitled to judgment "based on the language of the statute itself," as the Library's refusal to hire her "was literally discrimination 'because of... sex.'" An individual who changes religions from Christianity to Judaism could not lawfully be fired by an employer that professes to harbor no bias toward Christians or Jews, but only "converts," the court noted.

Look for this case to be appealed. Students of employment discrimination will want to watch this case.

Mitchell H. Rubinstein 

Plaintiffs only win 15% of job discrimination claims

The September 19, 2008 Wisconsin Law Journal ran an important story which discusses a study that found that employment discrimination plaintiffs only prevail in 15% of the cases. As the article states:

According to statistical analysis conducted by two Cornell University Law School professors of federal records from 1979 to 2006, plaintiffs who brought job discrimination cases to district court won only 15 percent of the time, compared to 51 percent for non-jobs related cases.

The study, released on Sept. 18 by the American Constitution Society for Law and Policy, also suggested that because of the comparatively low success rate, fewer lawyers are willing to risk taking an employee’s case to the federal level.

This bar journal article actually summarizes  Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad To Worse?, 3 Harv. L. and Policy Rev. 3 (2008). This is a well written law review article that empirically documents what most of us known for a long time-plaintiffs do not fair well in employment discrimination cases. I am sure that scholars and lawyers will find this article of great interest.

Mitchell H. Rubinstein

7th Holds Merely Being Written Up Without More Is Not An Adverse Employment Action

DeLarama v. Illinois Dep't. of Human Services, ____F.3d____(7th Cir. Sep't. 4, 2008) illustrates the importance of finding that a certain action is an adverse employment action under Title VII. The 7th held that the employer's recording of absences in the employee's file was not an adverse employment action under Title VII. Therefore, plaintiff was not able to establish a prima facie case of employment discrimination.

Significantly, the employer agreed that the absences would not have any effect on the terms or conditions of employment. The employee failed to show that she sufferred from any tangible consequences. Had she established this, the case may have turned out differently.

Mitchell H. Rubinstein

7th Once Again Demonstrates How Narrow BFOQ Defense Is

Henry v. Milwaukee Co., ____F.3d____(7th Cir. August 20, 2008), illustrates how narrow the BFOQ to Title VII really is. The Seventh Circuit rejected a county's bona fide occupational qualification (BFOQ) defense and held that two female juvenile corrections officers prevailed on their claim that a sex-based assignment policy denied them more lucrative third shift assignments because of their sex. A new policy at a juvenile detention center required assignment of at least one staff member of the same sex as juveniles assigned to single-sex "pods" as part of a role model/mentoring program. Since there were many more male than female juveniles, the policy had an adverse effect on women, particularly on the third shift, when only one officer was assigned to each pod. In order to satisfy Title VII's antidiscrimination structures, the county was required to show that the challenged sex classifications were reasonably necessary to achieve its goals. The county had the burden of demonstrating "it could not rearrange job responsibilities to eliminate or minimize the conflict between the inmates' privacy, security and rehabilitation interests and the employees' rights under Title VII," the circuit court wrote. While the number of opposite-sex staff may help to promote security, efficient risk management and privacy, the county failed to show its policy was reasonably necessary for these goals, emphasized the court. Thus, its BFOQ defense failed.

Mitchell H. Rubinstein

7th holds secret tape-recording of superiors in jailer's harassment suit not protected activity

The 7th Circuit decision in Argyropoulous v. City of Alton, ___F.3d___(7th Cir. Aug. 26, 2008) is an important case.  A woman jailer who surreptitiously tape-recorded a closed door meeting with two of her superiors in connection with a sexual harassment investigation she filed against the city of Alton, triggering both her arrest under the state's felony eavesdropping statute and her discharge, did not engage in protected activity under Title VII's anti-retaliation provision. While the jailer alleged that she engaged in protected activity under Title VII because she only sought to obtain evidence for her harassment suit, the Seventh Circuit held that her argument rested "upon a transparently overbroad view of the scope of the statute's protection." Although Title VII protects employees who complain about discrimination, "the statute does not grant the aggrieved employee a license to engage in dubious self-help tactics or workplace espionage in order to gather evidence of discrimination," wrote the court. The jailer also failed to show that she was performing her job satisfactorily and could not show that she was treated less favorably than similarly situated employees who engaged in similar misconduct. Moreover, the city discharged the jailer largely due to her behavior in the eavesdropping incident, which was not pretextual.

This case demonstrates that employees do not have carte blance to commit misconduct in order to aide in the investigation of their case.

Mitchell H. Rubinstein

Employer Establishes Affirmative Defense To Title VII Sexual Harassment Case

Chaloult v. Interstate Brands,___F.3d___  (1st Cir. Aug. 28, 2008), is an interesting decision.  In a Title VII claim of sexual harassment brought by former employee-plaintiff against former supervisor, summary judgment for defendant-employer is affirmed where: 1) defendant met the reasonable standard in preventing and correcting harassment; and 2) company was deprived of the opportunity to take remedial action because plaintiff-former employee did not make allegations of sexual harassment until she filed suit over a year after leaving her job at defendant company. The court described the applicable standard as follows:

In Faragher and Ellerth, the Court adopted as an alternative to an automatic liability rule an affirmative "composite" defense under which an employer may show, under the first prong, that "the employer had exercised reasonable care to avoid harassment and to eliminate it when it might occur," and, under the second prong, that "the complaining employee had failed to act with like reasonable care to take advantage of the employer's safeguards and otherwise to prevent harm that could have been avoided." Faragher, 524 U.S. at 805.

In Faragher and Ellerth, the Court adopted as an alternative to an automatic liability rule an affirmative "composite" defense under which an employer may show, under the first prong, that "the employer had exercised reasonable care to avoid harassment and to eliminate it when it might occur," and, under the second prong, that "the complaining employee had failed to act with like reasonable care to take advantage of the employer's safeguards and otherwise to prevent harm that could have been avoided." Faragher, 524 U.S. at 805.

         We separately evaluate the two prongs, recognizing that there may be a relationship between the two. For example, if the company has not provided information about a complaint procedure, that may affect whether the employee's failure to use the procedure is reasonable, and vice versa. Reasonable effort is required on both sides. As we said in Reed v. MBNA Marketing Systems, Inc., 333 F.3d 27 (1st Cir. 2003), the Supreme Court "certainly knew[] its regime necessarily requires the employee in normal circumstances to make [the effort to put the company on notice] if the employee wants to impose vicarious liability on the employer and collect damages under Title VII." Id. at 35; see also, e.g., Freytes-Torres v. City of Sanford, No. 05-15805, 2008 WL 763216, at *3 (11th Cir. Mar. 25, 2008); Nurse "BE" v. Columbia Palms W. Hosp. Ltd. P'ship, 490 F.3d 1302, 1309-12 (11th Cir. 2007); Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1186 (9th Cir. 2005).

Mitchell H. Rubinstein

         

Senate Passes ADA Restoration Act

Senate Passes Bill Protecting Disabled People is an important September 11, 2008 New York Times article. It reports that the Senate passed the ADA Restoration Act without dissent which the House passed earlier this year. The Bill now goes to a conference committee and President Bush is expected to sign it. As the article states:

"This is the most important piece of disability legislation since the enactment of the ADA in 1990 and we are close enough to the finish line that we can see over," said Andrew Imparato, head of the American Association of People with Disabilities.

The 1990 law requires employers to make accommodations for disabled employees. The new bill, the ADA Amendments Act, addresses Supreme Court decisions that critics say restricted the law. The court has ruled that mitigating measures -- such as medication or a prosthesis -- make a person ineligible for coverage.

Sen. Tom Harkin, an Iowa Democrat and a chief sponsor of the bill, said the Supreme Court rulings put the disabled in an untenable position.

"The erosions of rights created by these court cases have created a bizarre Catch 22 where people with serious conditions like epilepsy or diabetes could be forced to choose between treating their conditions and forfeiting their protections under the ADA, or not treating their conditions and being protected," Harkin said.

Mitchell H. Rubinstein

NYU College Prof States Cause of Action For Violation of Equal Pay Act

Klein v. NYU, ___F.Supp.2d___(S.D.N.Y. Aug. 14, 2008)(downloadable with free registration), is an interesting case. An accounting professor claimed that she was denied tenure because of her sex, that a  a fellow professor propositioned her for sex while she was considered for tenure and she received an inadequate raise because of her sex.

What was at issue in this case was her Equal Pay Act claim where she claimed unequal pay for equal work. The court refused to dismiss this claim and gave her leave to replead it, reasoning:

To state a claim for relief under the Equal Pay Act, plaintiff must allege the following: (1) the employer pays different wages to employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (3) the jobs are performed under similar working conditions. See Corning Glass Works v. Brennan, 47 U.S. 188, 195 (1974). Here, plaintiff requests leave to amend the complaint to specifically plead this claim. Plaintiff argues that she will plead the Equal Pay Act as follows: (1) she has identified several male faculty member who are paid more than her; (2)she will detail how the female faculty perform equal work requiring equal skill as the male faculty; and (3) she will discuss how the jobs are performed under similar conditions. See Pl's Mot. in Opp., at 8. Rule 15(a), F.R. Civ. P., provides that "leave [to amend] shall be freely given when justice so requires."

Mitchell H. Rubinstein

Is The Workplace Becoming More Gay Friendly??

According to The Human Rights Campaign Foundation's seventh annual Corporate Equality Index, which is an 87 page report, businesses continue to improve their treatment of lesbian, gay, bisexual and transgender employees. The Index, which rated 583 businesses saw the number of businesses that achieved a perfect score increase by a one-third over last year (from 195 to 259). These top-rated businesses collectively employ more than 9 million full-time employees who are protected from employment discrimination based on sexual orientation and gender identity or expression because of their employers' policies on diversity and inclusion, training, health care, and domestic partnership benefits. "

Researchers should find this report of interest.

Mitchell H. Rubinstein

Employer Established Affirmative Defense To Sexual Harassment Complaint

Adams v. O'Reilly Automotive, ___F.3d___(8th Cir. August 15, 2008), is an important decision to be aware of. An employer was able to escape liability for sexual harassment because it established the ellerth-Faragher affirmative defense because the employee unreasonably did not follow the employer's sexual harassment policy.

In this case, the employee failed to avail herself of the established complaint procedure for over 2.5 years. Significantly, once the plaintiff employee finally complained, the employer took immediate action. Her delay was not excused by her need for a corroborating witness. She offered no evidence that alleged that her fear that reporting the harassment would lead to retaliation. Therefore, her decision not to report the harassment was unreasonable.

Mitchell H. Rubinstein

Ill. lower court holds complaints about racial profiling of customers was not protected activity

Denham v. Saks, Inc., ___F.Supp. 2d___(D. Ill. July 30, 2008), is an important decision to be aware of.

A lower federal court held that a discharged African-American employee's claim of reprisal for complaining about racial profiling of African-American customers by sales associates could not survive summary judgment.Title VII focuses on how employers treat employees, not customers, and his complaints were about how his employer treated customers.

Even assuming that the employee, an assets protection investigator, was required to conduct racial profiling himself, he complained not about how it affected him differently than other employees, but about how it affected all assets protection investigators. Since his complaints focused on his employer's unequal treatment of African-American customers and not unequal treatment of employees, "it was not objectively reasonable for [him] to believe that he was complaining about activity protected under Title VII," wrote the court.

Mitchell H. Rubinstein

9th Holds SL Accrual Begins When Plaintiff Not Hired; Not When Legal Wrong Suspected

  Zolotarev v. City and County of San Francisco, ___F.3d___(9th Cir. Aug. 7, 2008), is an important reverse discrimination case.

Plaintiffs were job applicants who, several years after their nonhire, alleged the city and county of San Francisco gave preferential hiring treatment to Asian and Filipino candidates. They brought suit under  their Section 1981, 1983, 1985 and 1986 alleging race and national origin discrimination. The Ninth Circuit, in an apparent matter of first impression dismissed the case on the basis of the statute of limitations.

Some of the applicants contended they had no reason to know of the discriminatory treatment until several years after they were not hired. It was only then that they learned that allegedly unqualified Asians and Filipinos had been hired. Other unsuccessful applicants asserted they were unaware of the defendants' discriminatory conduct until they received a letter notifying them of the instant lawsuit. Joining seven other circuits, however, the Ninth Circuit held the statute of limitations period begins "upon awareness of the actual injury" (i.e., the adverse employment action), not when "the plaintiff suspects a legal wrong" (i.e., the discriminatory intent behind the adverse action). Therefore, the applicants' claims "accrued at the time they received notice they would not be hired" or "when a reasonable person would have realized he had not been hired," held the appeals court.

I believe this decision is wrong-very wrong.

Mitchell H. Rubinstein

3d Holds Suspension of Security Clearance Renders Employee Unqualified

Makky v. Chertoff, ___F.3d___(3d Cir. Aug. 7, 2008) is an interesting Title VII case. 

The 3d dismissed plaintiff's Title VII mixed-motive discrimination claim alleging national origin and religious discrimination claim because the employee failed to establish a prima facie case under a mixed-motive theory.The employee, an aviation security researcher with the FAA for more than 15 years, was the only Muslim and the only member of his team who was of Arab descent. In 2003, on the day the US invaded Iraq, he was placed on administrative leave with pay and, without further explanation, was told not to come to work. The employee was suspended indefinitely in 2005 after he was denied renewal of his "top secret" security clearance.

In a matter of first impression, the appeals court held a mixed-motive plaintiff fails to establish a prima facie case if there is unchallenged objective evidence that he did not possess the bare minimum qualifications for the position he sought to obtain or retain. Cautioning that it was not imposing a requirement for mixed-motive plaintiffs to show they were subjectively qualified for their jobs, the court spoke "only in terms of an absolute minimum requirement of qualification, best characterized in those circumstances that require a license or a similar prerequisite in order to perform the job." In this case, a security clearance was the minimum requirement needed to hold the employee's position. When his clearance was suspended, the employee was not qualified on the most basic level to perform his job.

Note, the court did not have jurisdiction over the denial of security clearance and plaintiff was represented by the Seton Hall Law School clinic. 

Mitchell H. Rubinstein

Plaintiff Awarded Attorneys Fees For First Trial Even Though It Resulted In A Hung Jury

Under Title VII, attorneys fees are available to prevailing plaintiffs. It is sometimes difficult to determine how to calculate attorney fees.  Abner v. The Kansas City Southern Railroad, ___F.3d___ (5th Cir. Aug. 14, 2008), is an instructive case because it reviews the standards for attorneys fees under Title VII. The court held that a prevailing plaintiffs (who were  awarded punitive damages, but not compensatory damages after a 2nd trial) were entitled to attorneys fees for the first and second trials even though the first trial ended in a hung jury. As the court stated:

  What these cases teach us is that the question of whether a party
“prevailed” and whether a fee award is “reasonable” is not one to parse too
thinly – whether by individual claim or the number of trials required to reach
a result. The “overall relief” obtained in this case was substantial: each plaintiff
received a punitive damage award of $125,000. And plaintiffs ultimately
“prevailed” on their claim of a hostile work environment. At the second trial, the
jury found that Defendant had subjected Plaintiffs to a hostile work environment
and had failed to “exercise . . . reasonable care to prevent and promptly correct
any racially harassing behavior,” awarding each plaintiff a large sum.
Moreover, work done during the first trial – not simply in preparation for the
first and second trials – contributed to this result. Plaintiffs’ claims in the first
and second trial arose from the same set of facts and evidence – both trials
centered around hostile work environment discrimination. And the first trial
allowed witnesses to become familiar with the case and the trial process.
Plaintiffs’ attorney explained at oral argument that at least one of Plaintiffs’
experts had rarely, if ever, before testified; he was a key witness at both trials,
and his experience testifying at the first trial enhanced his understanding of the
case. The first trial also drew out important evidentiary issues that were
disputed prior to the second trial, as shown by Plaintiffs’ and Defendant’s
motions in limine that referred directly to issues from the earlier trial. And
Defendant does not contend that Plaintiffs caused or contributed to the first
mistrial.
Rather than looking at each trial in isolation, it is appropriate for a district
court under Hensley to focus on the ultimate result of the case, as the trial court
did here.

10th holds disclosure of medical records was protected, but nurse's aid was properly fired

Vaughn v. Epworth, ___F.3d___(10th Cir. Aug. 19, 2008) is an important Title VII case. The 10th holds that even though a African-American nurse's aid engaged in protected activity under Title VII's anti-retaliation provision when she sent copies of a patient's unredacted, private medical records to the EEOC in order to substantiate her disparate treatment claims, the employer was entitled to summary judgement. The court held that the aid violated her employer's policy regarding confidentiality when she provided the medical records to the federal agency. The aid alleged she was disciplined based on her age and race for "making errors with respect to a patient's medical records, while a younger, white employee was not disciplined for making the same errors." To show the disparity, the aid provided the EEOC with "medication sheets" supposedly containing errors by the other employee similar to those for which she had been disciplined. After the employer learned the aid disclosed the records, she was fired. Disclosing the medical records to the EEOC constituted protected activity under the participation clause, the appeals court held, rejecting the district court's belief that the participation clause places an "obligation to resort only to honest and loyal conduct in advancing a claim unless the employee proves that it is necessary to resort to other means." Nonetheless, the employer's discharge was supported by legitimate, non-retaliatory reasons: In addition to violating the company's policy regarding confidentiality of medical records, and perhaps Oklahoma law, the employee may have violated HIPAA.

Mitchell H. Rubinstein 

FMLA Cited As Evidence That Employer Accommodated Disability Under Rehabiliation Act

William Santacrose v. CSX Transportation, ___F.3d____(11th Cir. Aug. 5, 2008), is an important FMLA decision which is not scheduled to be officially reported. As you are about to see, that makes no sense.

In a nutshell, the employee requested intermittent FMLA leave to avoid working over-time which was granted.    After his leave was exhausted he sought to bring a Rehabilitation Act claim claiming the company was not accommodating his disability. In rejecting his failure to accommodate claim, the court relied on the fact that the company granted him FMLA leave. As the court stated:

As the district court correctly concluded, CSX reasonably accommodated
Santacrose’s disability by allowing him to use his company sick leave and FMLA
leave to avoid working overtime shifts. While Santacrose was not given the
precise accommodation he requested (an eight-hour restriction), a qualified
individual with a disability is not entitled to the accommodation of his choice, but
only to a reasonable accommodation. Stewart v. Happy Herman’s Cheshire
Bridge, Inc., 117 F.3d 1278, 1285-86 (11th Cir. 1997). Though Santacrose wanted
to avoid overtime without having to use his company sick leave or FMLA leave,
CSX was not obligated to fulfill this specific request, so long as it provided him
with a reasonable accommodation. Santacrose’s own testimony indicated he was
allowed to avoid working overtime and maintain an eight-hour restriction by using
his leave. Neither Santacrose’s company sick leave nor his FMLA leave has been
wholly diminished by his using leave time to excuse himself from overtime.

I believe the 11th is wrong-very wrong. An employer's compliance with the FMLA is not relevant to a duty to accommodate claim. The employer simply complied with the law. Similarly, if an employer violates the FMLA, it does not mean that he violated the ADA as well.

I am glad that this decision is not officially reported; however these days with everything searching electronically, the decision can be easily found. Hopefully, a petition for en banc review will be filed.

Mitchell H. Rubinstein
Moreover, Santacrose has never been disciplined for failing to work overtime
shifts or using his leave time in lieu of working overtime. Because CSX’s
accommodation of Santacrose’s disability is reasonable, the district court did not
err in granting summary judgment to CSX as to Santacrose’s discrimination claims
under the ADA and Rehabilitation Act.

8th Holds That Employee Fired For Sleeping On The Job Loses ADA Claim

The 8th Circuit recently decided an interesting ADA case, McNary v. Schreiber Foods, Inc, ___F.3d___(8th Cir. Aug. 1, 2008). The court rejected an employee's claim that he was terminated because of his disability after he was found sleeping on the job. The court described the relevant standard as follows:

The decision below turned on the issue of pretext. The district court found that
Schreiber had provided a legitimate, nondiscriminatory reason for McNary's
termination—violating the company policy prohibiting sleeping on the job. We agree.
See Twymon v. Wells Fargo & Co., 462 F.3d 925, 935 (8th Cir. 2006) ("We have
consistently held that violating a company policy is a legitimate, non-discriminatory
rationale for terminating an employee").
To demonstrate pretext, a plaintiff must present sufficient evidence to
demonstrate both that the employer's articulated reason for the adverse
employment action was false and that discrimination was the real reason.
This burden will not be met by simply showing that the reason advanced
by the employer was false; rather, [the plaintiff] must demonstrate that
a discriminatory animus lies behind the defendants' neutral explanations.
Specifically, the plaintiff must do more than simply create a factual
dispute as to the issue of pretext; he must offer sufficient evidence for a
reasonable trier of fact to infer discrimination.
Wilking v. County of Ramsey, 153 F.3d 869, 874 (8th Cir. 1998) (internal quotations
and citations omitted). "To prove pretext, the employee must do more than show that
the employment action was ill-advised or unwise, but rather must show that the
employer has offered a 'phony excuse.'" Henderson v. Ford Motor Co., 403 F.3d 1026,
1034 (8th Cir. 2005) (internal citation omitted).
On appeal, McNary argues that he adequately rebutted Schreiber's termination
justification. For rebuttal, McNary relies on evidence and argument that he did not
actually violate company policy. He contends that he was on a regular break when
employees are allowed to sleep or, in the alternative, if he was on an unauthorized
break there was still no policy violation because he had been allowed to take breaks
at his discretion for years. McNary's argument misses the mark. The relevant inquiry
is not whether McNary actually violated the company policy nor is it whether he was
actually sleeping. "A proffered legitimate, non-discriminatory reason for termination
need not, in the end, be correct if the employer honestly believed the asserted grounds
at the time of the termination." Twymon, 462 F.3d at 935.
As we stated in an analogous but race-based discrimination case:
Whether he was sleeping or not, however, is irrelevant. [Appellant] has
offered no evidence to dispute [appellees'] testimony that he was fired
for taking an unauthorized break. Indeed, in his brief he admits
[appellees] accused him of "taking an unauthorized break," noting she
testified she saw him fifteen minutes after the end of his scheduled break
time. Moreover, as [appellee] argues, also irrelevant is [appellant's]
belief that he was still on break when [appellee] confronted him. Rather,
the relevant inquiry is whether the University believed he was guilty  . . .

This decision is relatively short and well written. It also provides is an excellent ADA primer.

Mitchell H. Rubinstein

7th Reverses Dismissal of Employment Discrimination Case Based Upon Purported Settlement

Magallanes v. Ill. Bell Tel. Co., No. 07-3028, ___F.3d___(7th Cir. July 23, 2008), is an important discrimination case and it concerns settlements. The 7th held that dismissal of an employment-discrimination suit because the parties had settled should be reversed because the defendant-employer did not meet its burden to prove that plaintiff's attorney had in fact been authorized to enter into a settlement agreement. The court summarized the applicable standards as follows:

Issues regarding the formation, construction, and enforcement
of settlement agreements are governed by
state contract law. Sims-Madison v. Inland Paperboard and
Packaging, Inc., 379 F.3d 445, 448 (7th Cir. 2004) (citing
Pohl v. United Airlines, Inc., 213 F.3d 336, 338 (7th Cir.
2000)). Under Illinois law, an attorney has no authority
to settle a claim of the client absent the client’s express
authorization to do so. Webster v. Hartman, 195 Ill.2d 426,
433 n.1, 255 Ill. Dec. 476, 749 N.E.2d 958 (2001) (citing
Danziger v. Pittsfield Shoe Co., 204 Ill. 145, 149, 68 N.E.
534 (1903)); Brewer v. National R .R. Passenger Corp., 165
Ill.2d 100, 105-106, 208 Ill. Dec. 670, 649 N.E.2d 1331. (1995).
An attorney’s authority to agree to an out-of-court settlement
will not be presumed, and the burden of proof
rests on the party alleging authority to show that fact.
Higbee v. Sentry Ins. Co., 253 F.3d 994, 1000 (7th Cir. 2001)
(citing Brewer, 165 Ill.2d at 105-06); Webster, 195 Ill.2d
at 433 n.1.  .  . .

Magallanes argues that Illinois Bell did not meet its
burden in showing that she gave Goldman the authority
to settle her case. We agree. Other than Goldman’s statements
to the contrary, the record is devoid of an indication
that Magallanes authorized him to settle the case.
Magallanes has consistently stated that she never gave
Goldman the authority to settle the case and never
signed a document stating that she authorized Goldman
to settle or that she agreed to settle. She never acted in a
manner that would suggest that she wanted to settle or
agreed with the terms of any proposed settlement. Nor
does settling the case for $10,000 make much financial
sense: she had already paid Goldman a $7,500 retainer
and had other outstanding fees and costs. She stood to
gain at most $2,500 and, as counsel for Illinois Bell suggested
at oral argument, as little as $600. Little in the
record suggests that she would abandon her lawsuit for
such a sum.

The lesson from this case is that the client should always sign the settlement agreement. If that is not possible, the attorney should get written confirmation from the client of his or her desire to settle.

Mitchell H. Rubinstein

1st Issues Important Decision on ADEA Damages-Dismissing Case Because Compensatory Damages For Mental Anguish Is Not Available

Collazo v. Nicholson, ___F.3d___(1st Cir. July 24, 2008), is a well written decision concerning damages under the ADEA.   The First dismissed the case because the damages plaintiff sought, compensatory damages for pain and suffering due to harassment on account of age, is not available under the ADEA. As the court reasoned:

Although we have recognized hostile work environment claims under the ADEA, see Rivera-Rodríguez v. Frito Lay Snacks Caribbean, 265 F.3d 15, 24 (1st Cir. 2001), it is well-established that the statute does not allow compensatory damages for pain and suffering.   In contrast to the ADEA, Title VII permits claims forcompensatory damages for emotional distress and pain and suffering arising from a discriminatorily hostile or abusive workenvironment. 42 U.S.C. § 1981a(a)-(b); see Villescas v. Abraham,311 F.3d 1253, 1260 (10th Cir. 2002) ("Congress had another opportunity to enlarge the remedies available under the federalemployee ADEA when it amended Title VII and other Acts in the CivilRights Act of 1991 to permit compensatory damages, subject to caps,and it conspicuously chose not to do so for ADEA claims."). Vazquez v. E. Air Lines, Inc., 579 F.2d 107, 109 (1st Cir. 1978); see also Comm'r of Internal Revenue v. Schleier, 515 U.S. 323, 326 (1995) (noting unanimity among the circuits on this principle).

Modeled after the Fair Labor Standards Act of 1938, the remedy provisions of the ADEA allow awards for "only those pecuniary benefits connected to the job relation," including unpaid wages or overtime compensation.    For willful violations, the statute "authorizes an award of liquidated damages equal to the back pay award." McKennon, 513 U.S. at 357; 29 U.S.C. § 626(b). Because liquidated damages are predicated on a plaintiff's lost wages or compensation award and Collazo has not raised a claim for any such losses in this case, he is also not entitled to liquidated damages. See 29 U.S.C. § 216(b)(incorporated into 29 U.S.C. § 626(b)) (stating that liquidated damages may be awarded in an amount equal to the pecuniary losses suffered).
Kolb v. Goldring, Inc., 694 F.2d 869, 872 (1st Cir. 1982) (internal quotation marks omitted); see also 29 U.S.C. § 626(b); McKennon, 513 U.S. at 357. Aside from monetary relief, federal courts may also grant "such legal or equitable relief as may be appropriate to effectuate the purposes of the Act," including reinstatement or promotion, if warranted. 29 U.S.C. § 626(b).

Here, Collazo has made no claim for pecuniary benefits related to his job or any equitable relief. His claim is limited to compensatory damages for pain and suffering. Therefore, even if he could establish a hostile work environment claim based on the record before us, the damages he seeks are not available.

Mitchell H. Rubinstein

11th Rejects Claim of Racial Discrimination Even Though Racial Epithet Was Said

Butler v. Alabama Dep't of Transportation, ___F.3d___(11th Cir. July 30, 2008), is an interesting case. The 11th held that a black employee's subjective belief that a white employee's racial epithet which was directed at a black driver whose car hit her amounted to an unlawful employment practice by the employer  was not objectively reasonable. The incident occurred immediately after an accident, it was away from work, and it did not happen within the earshot of any supervisors. As the court reasoned:

Assuming that Butler did believe that Stacey’s words immediately after the
wreck amounted to an unlawful employment practice by ALDOT, her belief is not
objectively reasonable. It is not even close. The incident consisted of Stacey’s use
of a racial epithet twice a few minutes apart. What Stacey said was, as Butler
testified, “uncalled for” and “ugly.” But not every uncalled for, ugly, racist
statement by a co-worker is an unlawful employment practice. This incident
occurred away from work. It did not happen within the hearing of any supervisors.
Butler admits that she never thought the epithets, deplorable as they are, were
aimed at her. She has never even suggested that this one-time use of vile language
away from work created a hostile work environment. She also conceded during
cross-examination that the incident did not affect her ability to do her job.
The incident that gave rise to this case is nowhere near enough to create a
racially hostile environment. We held in Rojas v. Florida, 285 F.3d 1339, 1344
(11th Cir. 2002), that in order “[t]o establish that a workplace constitutes a hostile
work environment, a plaintiff must show that the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Id. at 1344 (internal quotation marks and citation omitted).
It is objectively unreasonable to believe that the use of racially discriminatory
language on one occasion by one co-worker away from the workplace is enough to
permeate the workplace with “discriminatory intimidation, ridicule, and insult” and
to “alter the conditions of the victim’s employment and create an abusive working
environment.”

Though this decision is well written, I am a bit surprised that it even reached this level.

Mitchell H. Rubinstein

8th Provides Short Primer On Racial Harassment

O'Brien v. Dept. of Agric., ___F.3d___(8th Cir. July 16, 2008), provides a nice primer on the law of racial harassment under Title VII, which is very similar to sexual harassment. In a suit brought under Title VII claiming hostile work environment based on race discrimination and retaliation, summary judgment for defendant is affirmed where: 1) plaintiffs' working conditions were not so severe or pervasive that they rose to the level of a racially hostile work environment; 2) the constructive discharge claims were premised on the same allegations as the hostile work environment claims and were therefore insufficient; and 3) plaintiff's retaliation claims failed to establish a prima facie case. As the court stated:

Appellants contend that the district court failed to consider the totality of the
circumstances, examining instead only a few instances of Trice’s alleged harassment.
Hostile work environment claims are assessed based on the totality of the
circumstances, Vajdl v. Mesabi Acad. of KidsPeace, Inc., 484 F.3d 546, 551 (8th Cir.
2007); however, Appellants seem to argue that the sheer number of alleged instances
of harassment must equate to a racially hostile work environment. We disagree. The
frequency of the alleged harassment is only one of the relevant factors in determining
whether it was sufficiently severe or pervasive. Harris, 510 U.S. at 23. We also
consider “its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Id. Despite the hyperbolic and conclusory nature of Appellants
supporting affidavits, Trice’s actions, as alleged, lack the requisite severity to be
actionable. See Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 846 (8th
Cir. 2006) (“To be actionable, the conduct complained of must be extreme in nature
and not merely rude or unpleasant.”) (emphasis added).
Basically, the allegations may be distilled to verbal harassment and increased
scrutiny. Therefore, we find entirely unconvincing Appellants’ attempt to analogize
this case to Jackson v. Flint Ink N. Am. Corp., 382 F.3d 869 (8th Cir. 2004) and
Mems v. City of St. Paul, Dept. of Fire & Safety Servs., 224 F.3d 735 (8th Cir. 2000),
two cases in which this court reversed the district court’s grant of summary judgment
for the employer on hostile work environment claims. The plaintiff in Jackson was
an African-American factory worker who faced his name being written in a shower
at his workplace with an arrow connecting his name with a burning cross and a KKK
sign. 382 F.3d at 870. Mems involved African-American firefighters who: were
required to leave the station promptly at the end of a shift and respond to all calls
wearing full protective gear, while white firefighters were not; endured the display of
racially offensive cartoons; and suffered the destruction of their property. 224 F.3d
at 738-39.

Mitchell H. Rubinstein

NYAppellate Division Attempts To Quantify How To Determine Emotional Distress Damages

New York State v. NYS Division of Human Rights, ___A.D.3d___(3rd Dep't. July 10, 2008), is an important case. In this employment discrimination case, the court reduces an $850,000 emotional distress award down to $200,000, reasoning:

We cannot agree, however, that the award of $850,000 for
Humig's emotional distress is reasonably related to the
wrongdoing, supported by the record and comparable to other
awards for similar injuries (see Matter of New York City Tr.
Auth. v State Div. of Human Rights, 78 NY2d 207, 219 [1991]). It
is well settled that "an award of compensatory damages must be
based on pecuniary loss and emotional injuries actually suffered"
as a result of discrimination, and "[c]are must be taken to
insure that the award is . . . not punitive" (Matter of New York
State Dept. of Correctional Servs. v New York State Div. of Human
Rights, 225 AD2d 856, 858, 859 [1996]; see Matter of New York
State Dept. of Correctional Servs. v State Div. of Human Rights,
241 AD2d 811, 812 [1997], lv denied 92 NY2d 807 [1998]; Matter of
New York State Dept. of Correctional Servs. v State Div. of Human
Rights, 215 AD2d 908, 910 [1995]).

Humig and her witnesses testified that, as a result of the
discriminatory actions by Wright, she suffered from increased
stress, sleeping and eating difficulties, nosebleeds, and that
she was physically, mentally and emotionally upset and needed
counseling for what her counselor diagnosed as "adjustment
disorder with depressive features." Notably, however, Humig
attended only four counseling sessions, and she does not claim
that she took any leave or was prescribed any medication due to
the resulting distress. She testified that Wright's actions
caused her to fear for her life and she believed that other
correction officers might not come to her aid if a dangerous
situation developed. While respondent cites cases where awards
in the amount of $400,000 or more have been sustained (see Matter
of Kondracke v Blue, 277 AD2d 953 [2000] [$400,000]; Matter of
Town of Hempstead v State Div. of Human Rights, 233 AD2d 451
[1996], appeal dismissed 89 NY2d 1029 [1997], lv denied 90 NY2d
807 [1997] [$200,000-$500,000]; Matter of New York City Tr. Auth.
v State Div. of Human Rights, 181 AD2d 891 [1992], lv denied 80
NY2d 762 [1992] [$450,000]), we find that those cases involved
far more pervasive discrimination and injuries that were far more
severe than in the present case. Accordingly, after reviewing
awards in cases of comparable emotional distress caused by
discrimination and sexual harassment, we find that the award here
of $850,000 is excessive and should be reduced to $200,000 (see
e.g. Matter of Anagnostakos v New York State Div. of Human
Rights, 46 AD3d 992 [2007]; Matter of Board of Educ. of New Paltz
Cent. School Dist. v Donaldson, supra; Matter of Bell v New York
State Div. of Human Rights, 36 AD3d 1129 [2007]; Matter of R & B
Autobody & Radiator, Inc. v New York State Div. of Human Rights,
31 AD3d 989 [2006]; Matter of New York State Dept. of
Correctional Servs. v State Div. of Human Right, supra).

Now does this case make it any clearer how to evaluate what emotional distress damages should be? Not in my view. emotional distress damages are inherently subjective. This just demonstrates that it is impossible to accurately predicit the level of damages.

Mitchell H. Rubinstein

Award of $850,000 Reduced To $200,000 In NYS Employment Discrimination Case

Award of $850,000 by the NYS Division of Human Rights held excessive and reduced to $200,000
Matter of New York State Dept. of Correctional Servs. v New York State Div. of Human Rights, 2008 NY Slip Op 06246, Decided on July 10, 2008, Appellate Division, Third Department

Alicia S. Humig, a female correction officer, filed a complaint with NYS Division of Human Right alleging that she had been subjected to a hostile work environment and discrimination based upon her gender and sexual orientation, and she had suffered retaliation as a result of her complaints against a co-worker.

Following a hearing and recommendations by an Administrative Law Judge, the Division sustained the complaint and awarded Humig compensatory damages in the amount of $850,000. Corrections appealed, seeking to nullify this determination.

After sustaining the Division’s findings and determination that Humig has suffered discrimination and retaliation, the Appellate considered Correction’s challenge regarding the Division’s $850,000 award of compensatory damages to Humig and decided that this amount was excessive.

Although, said the court, Humig's emotional distress is reasonably related to the wrongdoing and supported by the record, it is not comparable to other awards for similar injuries. Citing Matter of New York State Dept. of Correctional Servs. v New York State Div. of Human Rights, 225 AD2d 856,; Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, 241 AD2d 811, lv to appeal denied 92 NY2d 807; and Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, 215 AD2d 908, the Appellate Division said that “It is well settled that "an award of compensatory damages must be based on pecuniary loss and emotional injuries actually suffered" as a result of discrimination, and "[c]are must be taken to insure that the award is . . . not punitive.”

Although Humig and her witnesses testified that, as a result of the discriminatory actions by her co-worker, she suffered from increased stress, sleeping and eating difficulties, nosebleeds, and that she was physically, mentally and emotionally upset and needed counseling for what her counselor diagnosed as "adjustment disorder with depressive features," Humig attended only four counseling sessions, and she did not claim that she took any leave or was prescribed any medication due to the resulting distress.

After reviewing awards in cases of comparable emotional distress caused by discrimination and sexual harassment, the Appellate Division decided that the award $850,000 in this instance is excessive and should be reduced to $200,000.

The full text of the decision is posted at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/award-of-850000-by-nys-division-of.html

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Mitchell H. Rubinstein

Employer Union Rep Named In Employment Discrimination Suit, But Second Circuit Does Not Address That Issue

I bring Bowles v. NYC Transit Authority, ___Fed. Appx. ___(2d Cir. July 10, 2008), for one reason. The plaintiff in this religious discrimination named his employer and the employer's labor relations represenative as defendants. As best I could tell, Plaintiff's theory against the labor relations representative was that he denied two grievances filed by plaintiff for discriminator