Pregnancy Discrimination Accommodation Young v UPS Supreme Court Edelstein Payne


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FEDERAL EMPLOYMENT LAW UPDATE
For the NCAJ Convention 2015 by Vanessa K. Lucas[1]
Raleigh, North Carolina

I.                   SUPREME COURT 

            A.        Young v. UPS, 135 S.Ct. 1338 (2015)  

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.
  

                B.        Dep't of Homeland Sec. v. MacLean, 135 S.Ct. 913, 916 (2015)  

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 


            A.        Foster v. Univ. of Maryland-Eastern Shore, 2015 U.S. App. LEXIS 8384 (4th Cir. Md. May 21, 2015)

           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.
            B.        Brown v. Nucor Corp., 2015 U.S. App. LEXIS 7739 (4th Cir. S.C. May 11, 2015)

           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.
             
            C.         Boyer-Liberto v. Fontainebleau Corp., 2015 U.S. App. LEXIS 7557 (4th Cir. Md.
                        May 7, 2015)

           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.

            D.        Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562 (4th Cir. 2015)  

           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.

E.         EEOC v. Freeman, 778 F.3d 463 (4th Cir. 2015)  

           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.
B.                 EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247 (2d Cir. 2014)  

            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.

C.                 Delaney v. Bank of Am. Corp., 766 F.3d 163 (2d Cir. 2014)  

            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. 

D.                Cox v. Onondaga Cnty. Sheriff's Dep't, 760 F.3d 139 (2d Cir. 2014)  

            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. 

E.                 EEOC v. Allstate Ins. Co., 778 F.3d 444 (3d Cir. 2015)  

            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.”

F.                  Hildebrand v. Allegheny Cnty., 757 F.3d 99 (3d Cir. 2014)  
             
            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. 

G.                Perret v. Nationwide Mut. Ins. Co., 770 F.3d 336 (5th Cir. 2014) 

            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.

H.                Davis v. Fort Bend Cnty., 765 F.3d 480 (5th Cir. 2014)  

            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.


I.                   Yeager v. FirstEnergy Generation Corp., 777 F.3d 362 (6th Cir. 2015)  

            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.

J.                   Walz v. Ameriprise Fin., Inc., 779 F.3d 842 (8th Cir. 2015)  

            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.

K.                Hilde v. City of Eveleth, 777 F.3d 998 (8th Cir. 2015)  

            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.

L.                 Magee v. Trs. of the Hamline Univ., 747 F.3d 532 (8th Cir. 2014)  

            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.

M.               Rickard v. Swedish Match N. Am., Inc., 773 F.3d 181 (8th Cir. 2014)  

            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.  

N.                Tramp v. Associated Underwriters, Inc., 768 F.3d 793 (8th Cir. 2014)  

            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.

O.                Arizona v. ASARCO LLC, 773 F.3d 1050 (9th Cir. 2014)  

            A $300,000 punitive damage award was upheld in a Title VII sexual harassment case where only $1.00 in nominal damages was awarded. 

P.                  Green v. Donahoe, 760 F.3d 1135 (10th Cir. 2014)  

            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.  

Q.                EEOC v. Beverage Canners, 897 F.2d 1067 (11th Cir. 1990) 

            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.

R.                 EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757 (11th Cir. 2014)  

            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. 

S.                  Jarvela v. Crete Carrier Corp., 776 F.3d 822 (11th Cir. 2015)  

            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.

T.                  Howard v. Pritzker, 775 F.3d 430 (D.C. Cir. 2015) 

            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."
 
U.                Associated Builders & Contrs., Inc. v. Shiu, 773 F.3d 257 (D.C. Cir. 2014)  

            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.

 -- 




[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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