Pregnancy Discrimination Accommodation Young v UPS Supreme Court Edelstein Payne
FEDERAL EMPLOYMENT LAW UPDATE
For the NCAJ Convention 2015 by Vanessa K. Lucas[1]
Raleigh, North Carolina
I. SUPREME COURT
PREGNANCY DISCRIMINATION; ACCOMMODATION
Young
came to the Supreme Court on writ of certiorari to the Fourth Circuit. The
United States became involved as Amicus Curiae supporting Young. Justice Breyer
delivered the opinion with Justices Ginsburg, Sotomayor and Kagan joining.
Justice Alito wrote a concurring opinion. Justice Scalia wrote a dissent that Justices
Kennedy and Thomas joined. Justice Kennedy also filed a dissenting opinion. The
court was tasked in determining the application of a portion of the Pregnancy
Discrimination Act (PDA) to a disparate treatment claim.
Young worked as a part-time driver
for UPS. Young became pregnant after suffering from several miscarriages and
was told by her doctor that she should not lift more than 20 pounds for the
first 20 weeks of her pregnancy and not more than 10 pounds thereafter. UPS
required drivers like Young to be able to lift up to 70 pounds individually and
up to 150 pounds with assistance. UPS
did not allow Young to work while under lifting restrictions and she
subsequently lost her medical coverage. Young filed suit alleging that UPS
acted unlawfully in not accommodating her lifting restrictions. Young argued
that co-workers were willing to help with lifting and other drivers
“similar...in their ability to work” were accommodated. UPS had a policy of
accommodation for three categories of employees. First, those disabled on the
job. Second, those that lost their Department of Transportation (DOT)
certifications. Third, those that suffered from an Americans with Disabilities
Act (ADA) covered disability. The district court granted summary judgment in favor
of UPS and the Fourth Circuit affirmed.
The PDA requires employers to treat
“women affected by pregnancy, childbirth, or related medical …the same for all
employment-related purposes…as other persons not so affected but similar in
their ability or inability to work.” The Court noted in their opinion that
“[l]iability in a disparate treatment case depends on whether the protected
trait motivated the employer’s decision.” Raytheon
Co. v. Hernandez, 540 U.S. 44, 52 (2003) and that a plaintiff can use
direct evidence or the burden shifting method to prove disparate treatment.
Young did not allege disparate impact or a pattern and practice claim.
The Fourth Circuit found that UPS’s
policy was facially neutral and that Young did not show that similarly situated
employees outside the protected class received more favorable treatment. Young
was compared to someone who hurt themselves off the job, and the three categories
of employees that UPS accommodated were found to be not similarly situated.[2]
The parties disagreed on the
interpretation of the PDA’s second clause “women affected by pregnancy,
childbirth, or related medical conditions shall be treated the same for all
employment-related purposes…as other persons not so affected but similar in
their ability or inability to work” (“same treatment” clause). Whereas in this case the workplace policy
distinguishes between pregnant and nonpregnant workers in light of
characteristics not related to pregnancy, different interpretations of “same
treatment” clause will create different outcomes. Young, supported by the
Solicitor General, argued that the clause means that whenever an employer
accommodates any subset of workers it must accommodate a pregnant worker if a
pregnant worker is similar in the ability to work, even if some non-pregnant
workers do not receive accommodations. UPS on the other hand argued the “same
treatment” clause only defines sex discrimination to include pregnancy
discrimination; therefore, an employer is not prohibited from denying a
pregnant woman accommodations on the basis of an evenhanded policy.
The Court declined to accept Young’s
interpretation on the grounds that it would grant pregnant women a
“most-favored-nation” status where if any employee is accommodated regardless
of the reason, such as longevity or particularly hazardous work, the pregnant
worker must be accommodated. The Court admits that seniority is not really a
problem because that is a Title VII defense, but uses the accommodation of
employees working under extra hazardous conditions as an example. The Court
declined to give weight to an EEOC guideline that supported Young’s
interpretation as it was recent and inconsistent with long advocated positions
of the government.
The Court likewise does not accept
UPS’s interpretation that the first clause accomplishes the objective of
defining sex discrimination as including pregnancy discrimination because it
would make the second clause superfluous. Further, the Court noted that the PDA
was passed to overturn General Electric Company
v. Gilbert, 429 US 125, 97 S.Ct. 401 (1976) and that UPS’s interpretation
would not address Gilbert’s holding that an
employer can treat pregnancy less favorable than disability resulting from
similar inability to work.
The Court ruled that for disparate
treatment claims under the PDA using the McDonnell
Douglas burden-shifting framework, a prima
facie case can be shown by membership in the protected class, request for
accommodation that was not granted, and that the employer did accommodate
others “similar in their ability or inability to work.” The employer may then
justify its refusal with a legitimate, nondiscriminatory reason, but the reason
cannot normally be due to expense or inconvenience. The Court ruled that a
plaintiff may reach a jury on this issue by providing sufficient evidence that
the employer’s policies impose a significant burden on pregnant workers, and
that the employer’s “legitimate, nondiscriminatory” reasons are not
sufficiently strong to justify the burden, but rather—when considered along
with the burden imposed—give rise to an inference of intentional
discrimination. The Court went on to note that there is genuine issue of
material fact as to whether a significant burden exists if a plaintiff can
provide evidence that the employer accommodates a large percentage of
nonpregnant workers while failing to accommodate a large percentage of pregnant
workers. In this case, the Court found that Young had provided enough evidence
to make out a prima facie case but left it to the Fourth Circuit on remand to
determine whether there was a genuine issue of material fact as to whether
UPS’s reasoning was pretextual based on the Court’s interpretation of the PDA.
In his concurring opinion, Justice
Alito agreed that the “same treatment” clause does not explain the first
clause, but adds to it. Alito interpreted the clause as meaning that pregnant
employees should be compared with employees performing the same or very similar
jobs. Alito reads the phrase “similar in their ability or inability to work,”
as “similar in relation to the
ability or inability to work.” The groups are not similar in a relevant sense
if the employer has a neutral business reason for differential treatment. He
agrees with the majority that expense and inconvenience are not enough, but
does not believe the PDA authorized courts to evaluate the justification for a
truly neutral rule. Alito says that UPS was within its rights to accommodate
employees with ADA disabilities and workers’ compensation disabilities, but their
accommodation of those who lost their DOT license created a genuine issue of
material of fact as to whether UPS had a neutral business ground for treating
the pregnant drivers less favorably than at least some nonpregnant drivers.
In dissent, Justice Scalia accuses
the Court of crafting a new law “splendidly unconnected with the text and even
the legislative history of the Act.” Scalia sees two readings of the “same
treatment” clause. First, pregnant women are entitled to accommodations on the
same terms as other workers with disabling conditions. If a pregnant woman is
denied an accommodation under a policy that does not discriminate against
pregnancy, she has been “treated the same” as everyone else. Basically, it
would only be differential treatment if a pregnant woman did not, for instance,
get the accommodation after losing her DOT license as other drivers did.
Secondly, the clause can be read as an employer may not distinguish at all
between pregnant women and others of similar ability giving the result that
pregnant women are entitled to the same accommodations as others, no matter the
differences (other than pregnancy) between them. This reading is what the
majority calls the “most-favored-nation” treatment. Alito reasons that only the
first interpretation makes sense and the majority should have adopted the first
interpretation.
Justice Kennedy’s dissent noted that
pregnant employees are disadvantaged and often discriminated against in the
workplace. Despite the importance of our pregnant women, Kennedy agrees with
Alito that the majority interpretation risks “’conflation of disparate impact
with disparate treatment’” by permitting a plaintiff to use a policy’s
disproportionate burden on pregnant employees as evidence of pretext.” This
interpretation adds confusion to the McDonnell
Douglas framework.
FEDERAL EMPLOYEE; WHISTLEBLOWER PROTECTION ACT
Justice Roberts delivered the opinion
of the Court, Justices Scalia, Thomas, Ginsburg, Breyer, Alito,
and Kagan,
joined. Sotomayor filed
a dissenting opinion, in which Kennedy,
joined. This opinion interprets “specifically prohibited by law” in the context
of the
Whistleblower Protection Action (WPA) which protects an
employee who discloses violations of law, rule or regulation or substantial and
specific dangers to public health or safety except where the disclosures are
“specifically prohibited by law.” 5 U. S. C. §2302(b)(8)(A).
MacLean was a federal air marshal
with the Transportation Security Authority (TSA) assigned to protect passenger
flights from potential hijackings. July
26, 2003, the Department of Homeland Security (DHS) issued a confidential
advisory about a potential hijacking plot. MacLean was briefed along with all
air marshal in face-to-face briefings concerning the plot. A few days after
briefing, MacLean got a text message from TSA cancelling all overnight missions
from Las Vegas where MacLean was stationed. MacLean believed this cancellation
during a hijacking alert was dangerous and illegal given the federal law that
required TSA to put an air marshal on
every flight that “present[s] high
security risks,” 49 U. S. C.
§44917(a)(2), and provided that “nonstop, long distance flights,
such as those targeted on September 11, 2001, should be a priority,” 49 U.S.C. §44917(b).
MacLean went to his supervisor concerning the cancellation and was told that
the TSA wanted to save money on hotel costs because there was no more money in
the budget. MacLean called the DHS Inspector General’s Office and a special
agent told him that nothing could be done. MacLean then went to an MSNBC
reporter who published a scathing story. After the story, Congress criticized the
cancellations and within 24 hours TSA reversed the decision and put air
marshals back on the flights. TSA did not know immediately that MacLean was the
source, but in September 2004 he went on NBC Nightly News criticizing a dress
code that he believed made air marshals easy to identify. Though he was in
disguise, co-workers recognized his voice and TSA began an investigation during
which MacLean admitted his earlier disclosure. In April 2006, MacLean was fired
for disclosing sensitive security information without authorization. MacLean challenged the termination with the
Merit Systems Protection Board (MSPB) who found that his whistleblowing
activity was not protected as his disclosure was “specifically prohibited by
law.” The Court of Appeals for the Federal Circuit vacated the MPSB’s decision
and the parties agreed that to be “specifically prohibited by law” it must have
been prohibited by statute rather than regulation making the issue before the
court whether the statute authorizing the TSA’s regulations—now codified at 49
U. S. C. §114(r)(1)—“specifically prohibited” MacLean’s disclosure. The court
first held that the statute was not a prohibition. The statute did “not
expressly prohibit employee disclosures,” but instead empowered the TSA to
“prescribe regulations prohibiting disclosure[s].” The court therefore
concluded that MacLean’s disclosure was prohibited by a regulation, which the
parties had agreed could not be a “law” and held that, even if the statute
were a prohibition, it was not “sufficiently specific.” Because it provided
only general criteria for withholding information with some discretion to
fashion regulations for prohibiting disclosure. The MSPB’s decision was vacated
and remanded and the Supreme Court granted certiorari.
The Government argued that the WPA
does not protect MacLean because his disclosure regarding the canceled missions
was “specifically prohibited by law” in two ways. First, the disclosure was
specifically prohibited by the TSA’s regulations on sensitive security
information. Second, the Government argues that the disclosure was specifically
prohibited by the statue which authorized the TSA to promulgate those
regulations.
As to the regulation, MacLean did not
dispute that the TSA’s regulations prohibited his disclosure regarding the
canceled missions. The Court ruled that in this case, law does not mean
regulations because the phrase “law, rule, or regulation” was not used and if
they wanted it to mean regulation they would have said “law, rule or
regulation” as that phrase was used elsewhere in the statute. Further, the Government had conceded at the
Court of Appeals that “law” did not mean rule or regulation in this
context.
Considering
whether MacLean’s disclosure was “specifically prohibited” by 49 U. S. C.
§114(r)(1) itself,
that provides the TSA “shall prescribe regulations prohibiting the disclosure
of information obtained or developed in
carrying out security . . . if the Under Secretary decides that disclosing the
information would . . . be detrimental to the security of transportation.” 49
U.S. C. §114(r)(1)(C): the
court noted that the statute does not prohibit anything, but authorizes
something, so by its own terms it did not specifically prohibit anything.
Justice Sotomayor disagreed with the
conclusion that the statute itself did not prohibit MacLean’s disclosure that
released information regarding the absence of federal air marshals on overnight
flights. The statute provides, in relevant part, that the TSA “shall prescribe
regulations prohibiting the disclosure of information obtained or developed in
carrying out security . . . if the Under Secretary decides that disclosing the
information would . . . be detrimental to the security of transportation.” 49
U.S.C.§114(r)(1) Sotomayor
was not persuaded by the argument that the statute authorizes not prohibits, as
she feels the majority overlooks the word “shall.” Congress has required agency
action that would preclude the release of information “detrimental to the
security of transportation.” In so doing, Congress has expressed its clear
intent to prohibit such disclosures. Sotomayor would respect its intent, and hold
that a disclosure contravening that mandate is “prohibited by law” within the
meaning of the WPA. She calls this “sheer formalism” and especially in this
context would not have “surrendered” to it. However, she pointed out that this
is easily remedied given the ability for future courts and Congress to easily
avoid the consequences of this ruling. “But in the interim… the Court has left
important decisions regarding the disclosure of critical information completely
to the whims of individual employees.”
II.
FOURTH CIRCUIT DECISIONS
RETALIATION,
BUT-FOR CAUSE, HOSTILE WORK ENVIRONMENT
Foster
is a published decision written by Judge Floyd with Judges Keenan and Wynn
joining. This appeal answers the question of what a retaliation plaintiff must
show to survive a motion for summary judgment after the Supreme Court’s
decision in Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013). Nassar held that a retaliation plaintiff must
prove that retaliatory animus was a “but-for” cause of the adverse employment
action versus the less stringent “motivating factor” test. Nassar did not address the application of but-for causation to McDonnel Douglas pretext cases. The Fourth
Circuit finds that Nassar did not alter the
burden shifting analysis for retaliation claims involving pretext analysis, but
only applies to “direct evidence” allegations where the plaintiff alleges a
specific act is direct evidence of discrimination.
Foster was hired by the Defendant as
a campus police officer on March 12, 2007. Prior to even starting work, she was
sexually harassed by a co-worker. The sexual harassment continued for a month
before Foster notified her superiors and Marie Billie, Director of Human
Resources. Billie investigated and concluded that the co-worker had acted
inappropriately. Billie recommended discipline which was implemented by a
University Vice President (VP). Foster alleged that she was retaliated against
following her complaints. For example, her six month probationary period was
extended, her schedule changed, and request for tuition remission denied.
Foster complained repeatedly about retaliation to Billie and her supervisor.
Less than a month after her last complaint, her supervisor recommended her for
termination and Billie and the VP agreed and Foster was terminated on October
29, 2007 in a letter with no explanation. Thereafter, the University came up
with several reasons for Foster’s termination during litigation. Importantly,
in her deposition Billie testified, "everything that ever happened
[Foster] attributed to the sexual harassment complaint," and she
"couldn't move on" or "get past [the harassment]." Further,
Billie agreed that Foster was an "unacceptable fit" for the position
of police officer because she complained too often about perceived retaliation.
Foster brought claims of wrongful termination based on gender, retaliatory
termination and hostile work environment. Summary judgment was granted as to
the discriminatory termination and hostile work environment, but denied as to
retaliatory termination. When Nassar was
decided the Defendant filed a motion for reconsideration and the district court
granted summary judgment on the retaliation claim in light of the Supreme
Court’s decision. Plaintiff appealed on all claims.
The Fourth Circuit noted that Nassar significantly altered the causation
standard for claims based on direct evidence of retaliatory animus by rejecting
the “mixed motive” theory of liability for retaliation claims relying on an
analogous ADEA case. However, it ruled that “[h]ad the Nassar Court intended to retire McDonnell
Douglas and set aside 40 years of precedent, it would have spoken plainly
and clearly to that effect…[b]ut it did not do so. We therefore hold that
Nassar does not alter the causation prong of a prima facie case of
retaliation.” Further, “the McDonnell Douglas
framework has long demanded proof at the pretext stage that retaliation was a
but-for cause of a challenged adverse employment action. Nassar does not alter
the legal standard for adjudicating a McDonnell
Douglas retaliation claim.”
Therefore, given the evidence presented by Foster, summary judgment was
not appropriate on the retaliation claim.
The gender discrimination discharge
claim had little evidence other than the fact than an admittedly better
qualified male was hired, so summary judgment was upheld.
Foster’s
hostile work environment claim failed, because of a weak argument that the
University should have known of the sexual harassment
prior to Foster’s complaint based on past behavior of the harasser against
another employee. Unfortunately the other employee’s claims that Foster relied
upon were not found to be credible by the employer when investigated.
Additionally, the Maryland Commission on Human Relations returned a “no
probable cause” on the earlier employee’s complaint. The Court ruled that the
employer could reasonably rely on findings by a state civil rights agency.
Therefore, summary judgment was upheld on the hostile work environment claim as
it could not be imputed to the employer.
RACE
DISCRIMINATION; CLASS CERTIFICATION
Brown
is published decision written by Judge Gregory with Judge Keenan joining and
Judge Agee dissenting. This is a class
action by black steel workers that allege endemic racial discrimination at a
plant in South Carolina owned by Defendant. Plaintiffs make claims of
discrimination in promotions and hostile work environment under Title VII and
42 U.S.C. §1981. Certification was initially denied by the district court on
both claims and the Fourth Circuit reversed. The district court then revised
the decision on class certification decertifying the promotions class in light
of the decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011) . Brown holds that the district court erred, for
a second time, in refusing to certify the class and “fundamentally
misapprehended the reach of Wal-Mart and
its application to the workers’ promotions class.” The Court remanded the case
for re-certification.
The district court based
decertification of the workers' promotions class on the Supreme Court's
interpretation of Federal Rule of Civil Procedure 23(a)(2), which (1)
emphasized the analytical rigor required to evaluate a plaintiff's statistical
evidence of commonality at the class certification stage, (2) placed the burden
on plaintiffs to provide "significant proof" of a "general
policy of discrimination" and "common injury," and (3) relatedly
established that a company's policy of discretionary decision-making cannot
sustain class certification without a showing that supervisors exercised their
discretion in a common way.
In addressing the analytical rigor
element the Court stated that the statistical disparity in promotions is
statistically significant at 2.54 standard deviations from what would be
expected if race were a neutral factor and the surrounding circumstances
(common us of the n word and other equally disgusting epithets broadcast over
plant wide radio, nooses, circulation of racist emails, commonplace showing of
the confederate and an episode where an employee draped a white sheet over his
head KKK style) "[were] sufficient to demonstrate common claims of
disparate treatment and disparate impact, [and the] statistical data did not
need to meet a twostandard-deviation threshold." The Court said since the
statistical disparity exceeded two standard deviations, the district court clearly
abused its discretion in decertifying the class.
In analyzing commonality and the
"significant proof" of a "general policy of discrimination"
and "common injury" element, the court pointed to three significant
differences with Wal-Mart. First, in Wal-Mart
the plaintiff’s statistical evidence was discounted because it failed to show
discrimination on a store-by-store basis. In the present case, the Plaintiffs
are100 class members in a single plant in South Carolina who shared common
spaces, were in regular physical contact with other departments, could apply
for promotions in other departments, and were subject to hostile plant-wide
policies and practices. Second, the Wal-Mart
plaintiffs based commonality in part on showing a corporate culture that
facilitated the uniform transmission of implicit, or subconscious, bias into
the hiring process in contrast to the Plaintiffs at the Nucor plant who have
“provided substantial evidence of unadulterated, consciously articulated,
odious racism throughout the Nucor plant, including affirmative actions by
supervisors and a widespread attitude of permissiveness of racial
hostility.” Third, the anecdotal
evidence in the present case is substantially more probative than that in Wal-Mart. The court noted that
“[w]hereas there may have been many answers in Wal-Mart to the question of why any individual
employee was disfavored, the workers here have sufficiently alleged that there
is only one answer to the question of why Nucor's black workers were
consistently disfavored.”
In analyzing the “company policy”
element, the court notes that to prove disparate impact requires the
identification of a specific employment practice that caused racially disparate
results. In distinguishing Wal-Mart the
court noted that “for a localized, circumscribed class of workers at a single
facility, a policy of subjective, discretionary decision-making can more easily
form the basis of Title VII liability, particularly when paired with a clear
showing of pervasive racial hostility. In such cases, the underlying animus may
help establish a consistently discriminatory exercise of discretion.”
Nucor also argued that the workers
failed to contest the finding that the putative class failed to satisfy Rule
23(b)(3). The Fourth Circuit disagreed saying that a more explicit separation
of predominance and commonality would have been wise, but the brief directly
responded to the intertwined issue brought up by the district court. Further,
the Court noted that their prior ruling foreclosed denial on the basis of Rule
23(b)(3), so a compelling reason was needed to reconsider the question of class
certification and the lower court cited no such reason and acknowledged that Wal-Mart only clarified what constitutes a
common question.
Judge Agee wrote a very long dissent.
Some highlights are that he insists that the plaintiffs failed to address the
predominance issue and so the argument was waived on appeal.
He is upset that the majority is giving pro se litigant
treatment to “experienced class counsel.”
As to the commonality portion, Judge Agee argues that the majority
recites, but does not follow, the abuse of discretion standard. Further, he has
a problem with the statistics provided by plaintiffs.
RACE
DISCRIMINATION; HOSTILE WORK ENVIRONMENT; RETALIATION
Liberto
is a published en banc decision written by Judge King. Judge King wrote the
dissent in the infamous case of Jordan v.
Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006). The district
court awarded summary judgment to the Defendant, which was affirmed by a
not-fully-unanimous panel of the Fourth Circuit. The en banc panel vacated the
judgment and remanded. Liberto specifically overrules Jordan where it conflicts with their decision.
The Court makes clear that it wishes to get rid of the “Catch-22” created by Jordan where an employee that complains too early
is not protected from retaliation and the employee that does not report early
enough is not protected as the employer can use the Ellerth/Farragher defense to
escape vicarious liability. The Court stated, “…we seek to promote the hope and
expectation – ingrained in our civil rights laws and the Supreme Court
decisions interpreting them – that employees will report harassment early, so
that their employers can stop it before it rises to the level of a hostile work
environment.”
Liberto,
an African-America, worked at a resort in Ocean City Maryland and was called a
“porch monkey” and had her job was threatened by, Trudi
Clubb, a Caucasian two days in a row. She reported to higher ups that she was
being racially harassed and was fired shortly thereafter by the owner. Liberto asserted claims of hostile work
environment and retaliation under Title VII and 42 U.S.C. §1981.[3]
Defendants contested the hostile work
environment claim contending that there had been no showing that Clubb’s
conduct was severe or pervasive enough to alter Liberto’s conditions of
employment and produce an abusive work environment.4 Defendants’
argument relied heavily on precedent from Jordan.
In Jordan, the African-American plaintiff
complained after a co-worker watching the DC sniper capture stated in his
presence “They should put those two black money in a cage with a bunch of black
apes and let the apes f…k them.” After Jordan reported the incident he was
fired and alleged retaliatory discharge, but the court found that he had failed
to state a claim, as it was not a hostile work environment and that no
objectively reasonable person could have believe that they were in a hostile
work environment.
This decision has a good summary of
co-worker versus supervisor hostile work environment, as there was a question
of whether Clubb was a co-worker or should be considered a supervisor. Since it
was at the summary judgment phase, the court noted that it must accept that
Liberto reasonably believed that Clubb could make or cause to be made a
decision of termination.
The Court found that Clubb’s chosen
slur of “porch monkey” was as odious in use as the “n word” and that a
reasonable jury could find that Clubb’s two uses of the epithet whether they
count as a single incident or two discrete incidents was severe enough to
engender a hostile work environment. The Court notes that they are identifying
this case as what was contemplated by the language in Faragher v. City of Boca Raton, 524 U.S. 775, 118
S.Ct. 2275 (1998) where harassment though isolated can be deemed to
be “extremely serious.” The Court also specifically rejected that its prior
decisions were meant to require more than a single incident of harassment in
every viable hostile work environment claim.
Defendant argued that Plaintiff could
not establish that she undertook a protected activity by making her racial
harassment complaint claiming Liberto could not have reasonably believed that
Clubb’s conduct was sufficiently severe or pervasive to engender a prohibited
hostile work environment. The Court
stated that an employee will have a reasonable belief that a hostile work
environment is occurring based on an isolated incident if that harassment is
physically threatening or humiliating. Of course, given that the Court found
that the hostile work environment claim should survive summary judgment,
Liberto showed a reasonable belief sufficient to get to a jury on the
retaliation claim. The Court specifically noted that the jury is entitled to
reject the hostile work environment claim while simultaneously awarding relief
on the retaliation claim by finding that Clubb’s conduct was severe enough to
give Liberto a reasonable belief that a hostile work environment, though not
fully formed, was in progress.
Judge Wilkson with Judge Agee joining
concurred in part and dissented in part with worries of employers becoming
“speech police”, employees being estranged from one another and companies
becoming analogous to surveillance states if the hostile work environment
requirements are too stringent. Wilkinson stressed the need for balance of
interests.
Judge Niemeyer, who wrote the
decision in Jordan and the appealed majority decision of the Fourth Circuit,
wrote a more than 30 page dissent, which is well addressed by Judge King in his
opinion. I will leave it at that.
SUMMARY
JUDGMENT; ADA DISCRIMINATION; ADA RETALIATION;
REASONABLE ACCOMMODATION; INTERACTIVE PROCESS
Jacobs’
is a published decision written by Judge Floyd with Judge Keenan and Judge
Harris joining.
Jacobs was hired as an office
assistant at the New Hanover County Clerk of Superior Court. She was quickly
promoted to deputy clerk and about a month later was assigned to the front
counter to serve the public in the Criminal Division. There were 30 other deputy
clerks in the Criminal Division the vast majority of whom did not work at the
front counter interacting with the public. After a time at the front counter,
Jacobs reported to her supervisor that she had social anxiety and was not
feeling healthy at the front counter. The supervisor reported the conversation
to the Clerk who made a note in Plaintiff’s personnel file. Several months
after the conversation with her supervisor, Jacobs wrote a letter to all three
supervisors seeking a reasonable accommodation and asking to be trained in a
different role and maybe only work the front desk once per week. She followed
up with her supervisor Jan Kennedy (the now Clerk) who said there was nothing
that could be done while the Clerk was out of the office. The Clerk returned
three weeks later. Jacobs went to the Clerk’s office where her three
supervisors were gathered with the Clerk. The Clerk fired Jacob at that time
and Jacobs recorded the termination conversation.
Jacobs had a long documented history
of mental illness from childhood and expert Claudia Coleman supported that
Jacobs had social anxiety disorder and that she was substantially limited in
the major life activity of interacting with others. The district court granted
summary judgment to the Defendants on all counts.
Before addressing the Plaintiff’s
claims the Court spends several pages recounting the errors made by the lower
court in granting summary judgment and compared this case to the recent Supreme
Court ruling where certiorari was granted on a seemingly routine summary
judgment because the lower court "fail[ed] to credit evidence that
contradicted some of its key factual conclusions" and "improperly
'weighed the evidence' and resolved disputed issues in favor of the moving
party.” Tolan v. Cotton, 134 S.Ct. 1861,
1866 (2014). Several examples were given of the misapplication of the summary
judgment standards to the facts including that
“inexplicably” the district court does not mention the
Plaintiff’s experts’ report in finding that Jacobs did not have a disability
under the ADA. The Fourth Circuit found that lower court drew all inferences in
favor of the Defendants and not the Plaintiff.
As to the question of disability
discrimination, the Court cites to Summers v. Altarum Inst., Corp., 740 F.3d 325 (4th
Cir. 2014) for positive
language applying the ADAAA. The Court using Chevron
analysis finds that “interacting with others” is a major life activity. The Court addresses Jacobs being
substantially limited despite speaking to co-workers and attempting work at the
front counter and notes the ADAAA rejects the “significantly restricted”
standard. The Court writes “a person need not live as a hermit to be
‘substantially limited’ in interacting with others.” According to the Court,
Jacobs need only show she endured social situations “with intense anxiety.”
Addressing whether Jacobs was a qualified individual, the Court found that the
inconsistencies of the Defendant witnesses testimony and lack of documentary
evidence would allow a reasonable jury to conclude that Jacobs was a qualified
individual despite the
Defendants’ contentions that she was not “performing her
job at a level that met the employer’s legitimate expectations.” The Court
found sufficient evidence to go to a jury on knowledge of disability and noted
that the temporal proximity of three weeks between request and termination met
the third element of the prima facie case. The Court found Jacobs presented
sufficient evidence of pretext based on the Defendants providing different
justifications for termination at different times, that though not internally
consistent, were not raised at termination and there was no documentation of
any justifications for the termination.
As to retaliatory discharge, the
Court notes that it is not disputed that there was protected activity and an
adverse employment action. The Court disagreed with Jacobs that there was
sufficient direct and/or indirect evidence that Jacobs was treated adversely
because of her request for accommodation. However, the Court found using the McDonnell Douglas framework that there was
causal connection due to temporal proximity and sufficient evidence of pretext
for the reasons already stated in the disability discrimination pretext
analysis.
In addressing the failure to
accommodate claim, the Court analyzed whether there was sufficient evidence
that working at the front counter was not an essential function. The Court
looked to the job description that named various duties other than the front
counter and the fact that of thirty clerks only four regularly worked at the
front counter. Along with the evidence that there were many clerks that could
fill the front counter position as they had already been trained. The Court
found that Jacobs’ proposed accommodation of taking on other tasks and fewer days
at the front counter did not require an increase in workload for coworkers.
Given the genuine dispute on whether Jacobs was a poor performer and no
uncontradicted evidence that Jacobs disability interfered with her ability to
perform tasks; there was a genuine dispute as to whether she could perform the
essential functions with an accommodation.
Lastly, the Court points to the
good-faith duty for an employer to engage in the interactive process to
identify a reasonable accommodation. This was triggered with Jacobs’
accommodation request and a reasonable jury could find bad faith as the
supervisors, who had authority to reassign employees to different tasks, did
not engaging in the interactive process during the Clerk’s absence and before
Jacobs’ termination.
RACE
DISCRIMINATION; SEX DISCRIMINATION; DISPARATE IMPACT; FRE
702
This is a published opinion by Judge
Gregory with Judge Agee and Judge Diaz joining and Judge Agee writing a
separate concurring opinion.
EEOC alleges that the Defendant’s use
of background checks –both credit and criminal-on job applications had an
unlawful disparate impact on black and male applicants. The district court
granted summary judgment after excluding EEOC’s expert testimony as unreliable
under Federal Rule of Evidence (FRE) 702. The Fourth Circuit affirmed.
In 2001, Defendant began running
criminal background checks on all employees and credit history checks for
“credit sensitive” positions involving money handling or access to sensitive
financial information. Applicants were excluded if their histories revealed
certain prohibited criteria such as conviction for a crime of violence. In 2008, an applicant denied a position filed
a charge of discrimination with EEOC based on the credit check and later the
EEOC notified Defendant that they were expanding to investigate the criminal
background checks. The EEOC found that both violated Title VII. The lawsuit,
post conciliation failure, alleged criminal checks had a disparate impact on
black and male applicants and credit checks had a disparate impact on black job
applicants.
The EEOC produced a report by Kevin
Murphy, an industrial/organizational psychologist and one by Beth Huebner, an
associate professor of criminology that purported to replicate Murphy’s
results. Eight days after the expert
disclosure deadline an amended report by Murphy with slightly altered
calculations was produced by EEOC. Defendant filed a motion to exclude reports
from both experts and moved for summary judgment. In response to the motion to
exclude, EEOC filed a new declaration and supplemental report from Murphy with
revised calculations and the results from his analysis of a new expanded
database. EEOC moved to file a sur-reply and while that motion was pending
filed additional supplemental reports from Murphy and Huebner. EEOC’s sur-reply
was denied and Defendant’s motion to exclude Murphy’s testimony was granted.
A district court’s decision to
exclude expert evidence is reviewed for an abuse of discretion. The Fourth
Circuit notes that the district court identified an alarming number of errors
and analytical fallacies in Murphy’s reports making it impossible to rely on
his conclusions. The Court goes on to say that Defendant provided EEOC with hundreds,
if not thousands, of applicants who Murphy did not include in a database of
fewer than 2014 background checks conducted largely before October 18, 2008.
Only 19 post October 14, 2008 applicants were included and all but one failed
the checks compared to Defendant’s conduction of more than 1500 criminal and
300 credit checks from October 15, 2008 to August 31, 2011. This along with the
number of errors and unexplained discrepancies, such as, in a subset of 41
individuals for which EEOC was seeking back pay twenty-nine had at least one
error or omission. EEOC argued that the discrepancies were from the original
data, but the lower court found it was Murphy that put the errors into his own
analysis. The district court was equally unimpressed with supplemental reports
and found new errors in his analysis such as double counting failing
applicants. The Court found that with the sheer amount of mistakes and
omissions that it was outside of the range where experts might reasonably
differ so the district court did not abuse its discretion.
Judge Agee wrote a concurrence to
“address [his] concerns with the EEOC’s disappointing litigation conduct”
stating that the public interest is jeopardized by the kind of missteps that
occurred here. Judge Agee further states that he is troubled by the use of
expert testimony from an expert whose work had been rejected by sister circuits
for similar deficiencies as observed in this case. Judge Agee points to Murphy
drawing broad conclusions from incomplete data, cherry picking relevant data
and obvious errors. Judge Agee finds these things troubling standing alone, but
even more so given the case of EEOC v. Kaplan
Higher Education Corp., 748 F.3d 749 (6th
Cir. 2014) where Murphy’s testimony concerning credit checks was excluded by
the district court for similar issues and the decision unanimously affirmed by
the Sixth Circuit. The concurrence adds that Murphy had “different but no less
severe criticism” over a decade ago when the Eleventh Circuit concluded that
Murphy’s report “recapitulate[d] the allegations of the plaintiffs in the guise
of an expert report.” Additional recent cases are provided slamming Murphy. The
concurrence ends with notice to the EEOC that its actions can be expected to
have greater consequences than a private litigant and a reminder to balance
responsibilities and remember their responsibility to employers and not abuse
power.
III. VARIOUS OTHER CIRCUIT COURT DECISIONS IN
BRIEF
A.
Turley v. ISG
Lackawanna, Inc., 774 F.3d 140. (2nd Cir. 2014)
This is an appeal of a multimillion
dollar jury award for racial harassment with horrific facts strongly supporting
a hostile work environment. Punitive damages of $24 million were reduced to $5
million with remittitur accepted by the Plaintiff. Defendant appealed to the
Second Circuit on five issues: jury instructions and verdict form,
parent-subsidiary liability, IIED under NY law, compensatory damages and
punitive damages. The Court found no error below on the first four issues
including upholding a $1.32 million compensatory damage award. However, the
court remanded for a further reduction of the punitive damages award noting
that as a general matter 4 to 1 is close to the line of constitutional
impropriety and with this huge compensatory award a lesser ratio (even equal to
the compensatory) can reach the outermost limit of the due process guarantee
and settled on a 2 to 1 ratio. The case was remanded for a remittitur or a new
trial if the Plaintiff does not accept.
.
EEOC filed suit against Defendant
under the Equal Pay Act “EPA” arguing that female non-supervisory attorneys
were paid at a lesser rate than their male counterparts for equal work.
The district court granted defendant judgement on the
pleadings. The Second Circuit affirmed.
The EEOC did not plead any facts particular to attorneys’
actual job duties but plead broad facts such as they all have the same degree,
work under time pressure and deadline, and use analytical and legal
skills. The Second Circuit agreed with
the district court that with no facts alleged concerning actual job duties
there is no basis to draw a reasonable inference that “equal work” was
performed. The district court treated EEOC’s interrogatory responses as a
functional amendment to the complaint, but the EEOC still failed to state a
claim as the district court thought the alleged comparator information showed
extraordinary differences and when questioned EEOC conceded that their argument
is that at the Port Authority “an attorney is an attorney is an attorney.” The
Court pointed to EEOC’s three year investigation and case law standing for the
proposition that a complaint should contain information that can be provided
and that imprecise pleadings are especially inappropriate when the plaintiff
had access to information to draft a suitable complaint. The Second Circuit
found that the EEOC failed to plead any nonconclusory allegations supporting
that the attorneys performed “substantially equal” work, so they affirmed the
dismissal.
Delaney
is an appeal of a grant of summary judgment on an Age Discrimination in
Employment Act (ADEA) claim. The Court found that evidence supported that
Delaney was selected for termination during a reduction-in-force because of
poor performance and that pointing to one younger employee not laid off was not
enough to create a genuine issue of fact as to whether age was the but-for cause
for termination. The facts showed that the year before termination in another
division Delaney had made $1.6 million dollars in commissions and received a
positive review. The year he was terminated others in his division had
increased sales by 20% where he had decreased by 7% which was an included
factor for his negative mid-year review. He was 56 and the oldest and only
member of his group chosen for layoff.
Cox
plaintiffs are white Sheriff’s deputies. They appealed a grant of summary
judgment on their Title VII retaliation claims. The deputies complained of
racial harassment based on rumors of them being skinheads and an investigation
was conducted. The deputies were not happy with the investigation’s outcome
finding no evidence of harassment and filed an EEOC complaint. There was
another investigation due to issues with the first investigation and the
bringing of the EEOC complaint. During the second investigation the deputies
were threatened with a charge of making a false report to the EEOC as their
initial statement in complaining of racial harassment differed markedly from
those reported to the EEOC. The Court said they could establish a prima facie
case, but given their materially inconsistent statements against the alleged
harasser--a black male that had previously prevailed in a Title VII lawsuit for
hostile work environment and retaliation against the Department--there was no
evidence of pretext.
EEOC appealed summary judgment on
their retaliation claims against Allstate. Allstate terminated 6,200 at will
employees and offered them work as independent contractors, but in order to
become an independent contractor they had to sign a release waiving claims
against Allstate. There were other options including just taking a severance
and signing the release, which EEOC conceded was not retaliation. The EEOC also
argued that not signing the release is a protected activity. The Third Circuit
disagreed and said EEOC established neither protected activity nor adverse
action. “Allstate followed the well-established rule that employers can require
terminated employees to waive existing legal claims in order to receive
unearned posttermination benefits.”
Hildebrand a county employee sued the
District Attorney’s Office and the County. Plaintiff brought a 42 U.S.C §1983
complaint which was dismissed as the ADEA was the exclusive remedy. (The Fourth
Circuit had already come to the conclusion that the ADEA precludes a §1983
claim back in 1989.). The Court found that Plaintiff’s § 1983 retaliation
pleading did not meet the Iqbal/Twombly
standard, but the Iqbal/Twombly standard
did not apply to pleading of the condition precedent, so the ADEA claim stood.
Further, the court found that the filing of the EEOC’s revised, post Fed. Express Corp. v. Holowecki, 552 U.S. 389,
128 S.Ct. 1147 (2008), Intake Questionnaire constitutes filing of a charge of
discrimination, though the claim against the county was dismissed as they were
not named on the questionnaire and the deadline had passed when they were
identified.
A jury found that Plaintiff Perret
was constructively discharged because of his age and co-Plaintiff Pierre was
constructively discharged because of his age and race in violation of the Texas
Commission on Human Rights Act. The Fifth Circuit found insufficient evidence
to support a constructive discharge claim, so reversed the lower court’s denial
of motion for judgment as a matter of law.
Davis filed religious discrimination
and retaliation claims and the lower court granted summary judgment on both. In
dispute on the religious discrimination claim was whether observance of a
Sunday church event that involved breaking ground for a new church and feeding
the community was “pursuant to a bona fide religious belief.” The Fifth Circuit
found that the lower court improperly focused on the activity and not the
belief and should not have concluded that there was undue hardship on the
employer. The Fifth Circuit reversed and
remanded on the religious discrimination claim. Davis had previously been
sexually harassed, placed on FMLA and the harasser resigned. Davis claimed that
she was retaliated against upon return from FMLA. The Fifth Circuit agreed with
the lower court that there was no adverse action based on Davis’ allegations of
daily meetings not required of other employees, superseding her authority,
reducing her staff and her termination, which was for missing work to attend
the church event that forms the basis of the religious discrimination claim.
Plaintiff is a Fundamentalist
Christian who disavowed his social security number when he turned 18. Defendant
refused to hire him because he had no social security number. Plaintiff claimed
religious discrimination. The district court dismissed for failure to state a
claim and the Sixth Circuit affirmed.
Walz alleged wrongful termination and
failure to accommodate her disability. The district court granted summary
judgment and the Eight Circuit affirmed. Walz suffers from bipolar affective
disorder and started showing symptoms at work that were disruptive and caused
her coworkers to complain about her conduct. Walz’ supervisor had talked to her
about her behavior several times and she was given a formal behavioral warning.
She went out on FMLA approved by a third-party vendor, but never disclosed the
reason for leave to Ameriprise. Plaintiff did provide a note to her supervisor
upon return to work limiting her to 40 hours per week which stated “she has
been stabilizing on her medication.” A few months later the disruptive behavior
returned. She was warned about aggressive treatment towards co-workers in
meetings, but when she did not stop was fired for repeated misconduct. The
Court found that Walz failed to establish a genuine issue of material fact as
to whether she could perform the essential function of her position with or
without accommodation. Walz admitted
that the ability to work well with others was an essential function. Walz had no failure to accommodate claim
because she never requested an accommodation nor disclosed her disability.
This is a reversal of summary
judgment on an ADEA case where the 51-year-old Plaintiff claimed he was not
promoted due to his age. There was a
statement by Defendant that the fact that Plaintiff was at retirement age
“probably did” come into consideration. Further, there was some issues with
altered scoring and an atypical “deliberation” prior to the City’s
Commissioners finalizing the scores of Plaintiff and the 43
year old that was hired. The district court concluded that "it is not
improper for an employer to consider a candidate's eligibility for retirement
when making a hiring decision." However, the Eighth Circuit felt there was
a genuine issue of material fact as to whether Plaintiff was discriminated
against because of his age.
Plaintiff, a law professor, appeals
dismissal of her claims under 42 U.S.C. § 1983 based
on failure to state a claim. Magee alleged that the university, the dean, and
the president of the St. Paul Police Federation (SPPF) conspired with the St.
Paul Police Department to deny her constitutional right to freedom of speech.
Back in 2007, Plaintiff authored a commentary criticizing a state judge's
decision not to "investigate" allegations of racism in a trial for
murder of a St. Paul police officer. The president of the SPPF countered with
an editorial questioning her "fitness to teach" and stating, "I
hope Professor Magee confines her race baiting and cop-hating to her newspaper
submissions and keeps it out of the classroom.” The SPPF declared a boycott
against the university. Plaintiff claimed her termination was to please the
police and stop her from teaching about police misconduct, restraining her
speech and retaliating against her for criticizing government. However,
Defendant showed that Plaintiff was charged with state taxlaw violations in
2009 and suspended from teaching, convicted of four gross misdemeanors in 2011
and then fired. Among other things the Eighth Circuit found that Plaintiff did
not plead sufficient facts to show the SPPF president was acting “under color
of” state and that she did not plead specific facts to plausibly connect a
concerted action to her termination and upheld the district court granting of
the motion to dismiss.
The Eight Circuit upheld summary
judgment of Plaintiff’s ADEA claim where there was evidence of comments such as
“you know, old man, you have a lot of years in” by a manager that was one year
younger. The Court found the comments were not severe enough to affect a term,
condition or privilege employment. The Plaintiff also made a sex based hostile
work environment claim as the manager grabbed his nipple and stated “this is a
form of sexual harassment” and also rubbed a towel on his crotch and handed it
to Plaintiff. The Eight Circuit found there was no evidence offered, or
reasonable inference, that the manager’s behavior was motivated by sexual
desire. Lastly, Plaintiff’s constructive discharge claim failed due to not
showing hostile work environment and no evidence employer intended to force him
to retire when he voluntarily retired. Petition for cert. is pending.
Tramp appealed summary judgment on
ADEA and ADA claims. The Eighth Circuit reversed summary judgment on the ADEA
claims but upheld those under the ADA. ADEA - Plaintiff alleged that they
terminated her because of her age affecting their employee health insurance
costs. ADA -Plaintiff alleged knee pain that limited her ability to perform her
daily tasks and for which she scheduled arthroscopic knee surgery that she
claims would have limited her activity even more during recovery. Plaintiff
alleged defendant terminated her one day before her scheduled surgery because
of its perception that it had to get rid of its oldest and sickest employees
and that it regarded her as disabled.
A
$300,000 punitive damage award was upheld in a Title VII sexual harassment case
where only $1.00 in nominal damages was awarded.
The Tenth Circuit remanded a
retaliation claim for a federal employee where unpaid leave was found to
dissuade a reasonable employee from engaging in protected activity.
Defendant’s plant manager and
supervisor frequently made flagrant, revolting, and insulting racially
derogatory remarks towards and in the presence of blacks. After finding direct
evidence of discrimination, the trial court issued a permanent injunction
against the Company and the Eleventh Circuit affirmed. The Eleventh Circuit
reversed the trial court’s finding of no relief for the black employees and
held that the EEOC proved discrimination and remanded for determination of
appropriate relief.
EEOC brought a claim based on denial
of a subpoena. The charging party was a foreign national who claimed
discrimination under the ADA when the Defendant found out that he was diagnosed
with HIV, and though declared fit for duty by a physician, refused to renew his
contract. The Eleventh Circuit denied EEOC enforcement of a companywide
subpoena requesting, among other items, a list of all of Defendant’s employees
discharged or whose contracts were not renewed due to medical reasons.
Jarvela
came before the court on Plaintiff’s petition for panel rehearing. This panel
affirmed summary judgment on ADA and FMLA claims where the Plaintiff was fired
from his job as a commercial motor vehicle driver. A week before termination,
Plaintiff was discharged from a substance abuse treatment center with a
diagnosis of alcohol dependence. The Court found that he was not a “qualified
individual” as he could not meet an essential function of his job defined by
the DOT with a current clinical diagnosis of alcoholism. There was some
interpretive reading of ambiguous expert testimony elicited by Plaintiff’s
counsel that really hurt the Plaintiff.
The Commerce Department attempted to
apply the six-year statute of limitations for suits against the United States
to a Title VII case brought by federal employees. The DC Circuit said no to this “creative”
Commerce Department argument stating that Title VII is "an exclusive,
preemptive administrative and judicial scheme for the redress of federal
employment discrimination."
The Department of Labor revised its
implementing regulations of Section 503 of the Rehabilitation Act of 1973
(Rehab Act) to require contractors to extend the requirement that individuals
offered jobs are “invited” to advise the contractor whether they believe they
are covered by the Rehab Act to job applicants, as well as to analyze the
resulting data. The revised regulations also adopt a "utilization
goal" to serve as a target for the employment of individuals with
disabilities. A trade group representing federal contractors challenged these
regulations as exceeding the Department's statutory authority and as arbitrary
and capricious. The district court and DC Circuit rejected the challenges.
--
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[1]
Vanessa was a partner at the law firm of Edelstein & Payne. She practiced mainly in the areas of
employment law and workers’ compensation, only representing employees. Vanessa graduated from the University of San
Diego with a joint Juris Doctor and International MBA. Vanessa went to the University of Michigan
where she received a B.A. in Creative Writing and Literature from the
Residential College.
[2] The Court notes that the
ADA Amendments Act (ADAAA) may limit the significance of their interpretation of
the PDA, as the EEOC has interpreted the ADAAA to require employers to
accommodate employees with temporary lifting restrictions.
[3] The court noted that the
elements of hostile work environment are the same under Title VII and §1981.
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