Monday, November 2, 2015

"Ban the Box" to Become the Law for Federal Employers

Later today in Newark, New Jersey President Obama will announce an Executive Order prohibiting questions about criminal history on federal job applications. The announcement comes after years of nationwide lobbying by the "ban the box" movement. The Executive Order is geared toward giving people convicted of crimes a chance to land a job.

It's no secret that most employers reject job applicants who reveal a criminal history on a job application. Prohibiting criminal history questions on an application will at least keep people in the running for a job. Employers will still be permitted to run background checks. There are no laws forbidding employers to base hiring decisions on background checks, so the ban the box order may not result in more employment for people with a crime on their record. It will, however, increase their employment opportunities. It remains up to the individual to demonstrate that despite their history they have experience and skills that make them the most qualified applicant.

To help convicts get a job the State of Ohio created Certificates of Qualification for Employment ("CQE"). Ohio employers who hire a CQE holder are protected from lawsuits arising from conduct by the holder. Getting sued is often a reason why many employers do not want to hire people with a criminal history. Read more about the process of obtaining a CQE here.

Sunday, November 1, 2015

FMLA, No-Fault Attendance Policies and the Statute of Limitations

          A recent case out of the federal Seventh Circuit Court of Appeals shows the danger of waiting to assert FMLA time-off rights. In Barrett v. Ill. Dep't of Corrs., unreported, Case No. 13-2833 (7th Cir., Oct. 20, 2015), plaintiff's employer had a no-fault attendance policy allowing 12 absences before termination. The plaintiff missed work one time each in 2003, 2004 and 2005 for FMLA-covered absences but did not assert her FMLA rights. The employer counted those absences against her under the attendance policy. Plaintiff's twelfth absence occurred in 2010 and resulted in her termination. Plaintiff waited seventeen months before filing suit in 2012.

          Plaintiff argued that the FMLA violation occurred upon her termination. The employer countered that the alleged FMLA violations occurred in 2003-2005 and, therefore, Plaintiff’s FMLA claim had to be filed within two years thereafter. The trial court and the Court of Appeals agreed with the employer.  The Court of Appeals reasoned as follows:

We begin with the statutory text. The FMLA provides that “an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” *** To determine when the claim accrued, the statute tells us to identify the “last event” constituting the alleged FMLA violation.

          Without going into the full analysis, it’s pretty clear that the event giving rise to what was an FMLA interference claim was counting an FMLA-covered event as an unexcused absence under the attendance policy. Consequently, the FMLA-claim accrued at the latest in 2005. Plaintiff had until 2007 to bring the claim but waited until 2012 to file a lawsuit.  Too late.

          The moral of the story is that employees should not sit on their rights. Contact an employment lawyer (i.e., me) as soon as you’ve been nailed with an unexcused for medically-related reasons. I have had great success with FMLA/attendance policy cases, but no lawyer will be able to help you if you sit on your rights.

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Friday, October 30, 2015

Halloween, Wicca and Religious Discrimination

          To most Americans October 31st is Halloween. To members of the Wicca religion October 31st is one of the most, if not the most, important “sabbats” (solar festivals) of the year. I know this because I was recently asked by a member of the faith whether her employer was legally obligated to give her the day off for religious observance on October 31st.  I had to do a little research into the subject and what I learned is good news for witches and warlocks.  

          Federal courts are in agreement that Wicca is a religion protected under federal law just as mainstream religions are.  This from Saeemodarae v. Mercy Health Services-Iowa Corp., 456 F. Supp.2d 1021 (N.D. Iowa 2006):

Federal courts have recognized Wicca (also known under various names, including “the Wiccan (or Wiccian) religion,” “the Craft,” “witchcraft,” or “the Old Religion”) as a bona fide, established, or sincerely held religion that is protected, for example, by the Free Exercise clause of the First Amendment to the United States Constitution or Title VII of the Civil Rights Act of 1964. See, e.g., Dettmer v. Landon, 799 F.2d 929, 931-32 (4th Cir. 1986) (Wicca is a religion protected by the Free Exercise clause of the First Amendment to the United States Constitution); Van Koten v. Family Health Mgmt., Inc., 955 F. Supp. 898, 902 (N.D. Ill. 1997) (finding that Wicca was a “religion” within the meaning of Title VII), aff’d, 134 F.3d 375 (7th Cir. 1998) (table op.) (finding sufficient evidence to assume a prima facie case, including that the plaintiff was asserting protection on the basis of a “religion” within the meaning of Title VII).

See also Hedum v. Starbucks Corp., 546 F. Supp.2d 1017, 1023 (D. Or. 2008) (“There is no dispute that Ms. Hedum's practice of the Wiccan religion places her in a protected class”).

          What does this mean for employees who request a day off from work for religious observance on October 31st?   Thus, the employer who allows a Catholic employee a schedule change to attend services on Good Friday must treat members of the Wicca faith in the same manner on their important holidays, otherwise the employer is discriminating based on religion.

The Objective Test for Severe or Pervasive Sex Harassment

Dana Ellis worked for Jungle Jim’s grocery. Upon transfer to the seafood department her new supervisor, Caldas, started making lewd comments and suggestions on what she said was a daily basis.  Ellis cried and became physically ill because of her supervisor’s conduct. She needed her job, which paid $9.00 an hour. The store had a sex harassment policy in its employee handbook but Ellis didn’t follow it by complaining to her supervisor’s boss. A co-worker brought the harassment to the attention of management. The company reprimanded Caldas and told him to stop but the conduct continued albeit in a less direct way.

The law is clear as to what plaintiff’s such as Ellis must prove to win a hostile work environment sex harassment case:

Ellis must demonstrate: that the harassment was unwelcome, (2) that the harassment was based on sex, (3) that the harassing conduct was sufficiently severe or pervasive to affect the "terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment," and (4) that either (a) the harassment was committed by a supervisor, or (b) the employer, through its agents or supervisory personnel, knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

The third element requires a two-pronged showing: the conduct in question must (1) be severe or pervasive enough to create an objectively hostile or abusive work environment, and (2) be subjectively perceived by the victim to be abusive.

When you read the opinion it seems abundantly clear that the supervisor created an abusive sexually charged work environment. Nevertheless, the trial court tossed the case on summary judgment because it decided that the supervisor’s conduct wasn’t bad enough to make it harder for Ellis to do her job. The court of appeals reversed that decision and sent the case back for trial. The trial court’s error was in making its own subjective determination that a reasonable person would have been able to put up with the supervisor’s behavior. This is what I believe is a common mistake judge’s make. The issue for the trial court is not the judge’s opinion of the plaintiff’s working condition; rather, the issue is whether reasonable people, sitting on a jury, could view the evidence as demonstrating the existence of a hostile work environment. It’s unfortunate that Ms. Ellis had to pursue a timely and costly appeal in order to correct what really is a simple application of the law.

Saturday, October 3, 2015

Treatment of Direct Evidence in Age Discrimination Cases Under the ADEA

The federal Sixth Circuit Court of Appeals recently opined on how direct evidence of age discrimination under the ADEA is to be addressed on summary judgment. In Scheick v. Tecumseh Public Schools, Case No. 13-1558 (6th Cir., Sept. 2, 2015), the district court granted summary judgment in favor of the employer Plaintiff’s evidence consisted, among other things, of statements that “[t]he Board wants you to retire”  and that the employer "wanted someone younger.” The district court granted summary judgment, finding these statements not direct evidence of age discrimination.

The Sixth Circuit reversed based on the second set of statements, explaining as follows:

To prevail on a claim under the ADEA, it is not sufficient for the plaintiff to show that age was a motivating factor in the adverse action; rather, the ADEA’s “because of” language requires that a plaintiff “prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009) (citing Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 141-43, 147 (2000)). *** [A]fter Gross, we now look to whether evidence, if believed, requires the conclusion that age was the “but for” cause of the employment decision.

*     *     *

The first statement, made during the performance review, did not constitute direct evidence of age discrimination. As the district court found, McAran’s statement that the Board wanted Scheick to retire would require an inference to conclude that retirement was a proxy for age (as opposed to either years of service or a desire that he leave the position voluntarily). See, e.g., Scott v. Potter, 182 F. App’x 521, 526 (6th Cir. 2006) (finding the statement “[w]hy don’t you retire and make everybody happy” did not constitute direct evidence of age discrimination).

In contrast, McAran’s other two statements about wanting “someone younger” are not ambiguous and, if believed, do not require an inference to conclude that age was the but-for cause of the decision not to renew Scheick’s contract. First, the statements by McAran to Scheick on February 26 and March 15, respectively, represent direct references to age. See Sharp v. Aker Plant Servs. Grp., Inc., 726 F.3d 789, 794 (6th Cir. 2013) (involving statement “we want someone younger”). Moreover, the statements are not ambiguous despite the lack of an explicit statement that “the Board” wanted someone younger. Cf. Fuhr, 710 F.3d at 674 (finding ambiguities required inferences about what part of the “old boys network” took which unspecified retaliatory actions).

The Sixth Circuit, however, rejected the notion that presentation of direct evidence will always defeat an employer’s motion for summary judgment under the ADEA.

Thus, even when direct evidence of age discrimination has been offered, the question to be asked in deciding an employer’s motion for summary judgment is whether the evidence, taken as a whole and in the light most favorable to plaintiff, is sufficient to permit a rational trier of fact to conclude “that age was the ‘but-for’ cause of the challenged employer decision.” Gross, 557 U.S. at 178.

The Court ultimately concluded that “the evidence, taken as a whole and in the light most favorable to Scheick, is sufficient to permit a reasonable juror to conclude that Scheick’s age was the but-for cause of TPS’s decision not to renew the contract for his services.”

Tuesday, September 29, 2015

2016 Ohio Minimum Wage Same As 2015

Ohio’s minimum wage of $8.10 per hour for non-tipped employees and $4.05 per hour for tipped employees will stay the same in 2016.  A minimum wage of $7.25 will apply to smaller companies (yearly gross revenues of $297,00 and under) and to 14- and 15-year-olds.

Sunday, September 27, 2015

Can Supervisors Enforce an Arbitration Agreement They Did Not Sign?

Plaintiff Rivera worked for Rent a Center. He sued his supervisor, Owens, for race discrimination. Owens presented an arbitration agreement between Rivera and Rent a Center and asked the court to dismiss or stay the case pending arbitration. The agreement provided arbitration of legal claims against not only Rent a Center but also against its employees. Rivera insisted that the agreement was between him and Rent a Center only.

The Cuyahoga County Court of Appeals reversed the trial court's decision denying Owen's Owens' motion. The reason? Pretty simple: Owens was a third-party beneficiary of the agreement. In short, basic agency and contract principles apply to arbitration agreements, including ones between employer and employee.  Rivera v. Rent A Center, Inc., 2015-Ohio-3765 (8th Dist., Sept, 17, 2015).

Overtime and Minimum Wages Under Ohio Law

The Cuyahoga County Court of Appeals recently issued a highly favorable opinion for employees seeking overtime and minimum wage payments. In Porter v. AJ Automotive Group, Inc., 2015-Ohio-3769 (8th Dist., Sept. 17, 2015), plaintiffs claimed nonpayment of minimum wages and overtime under the Fair Labor Standards Act ("FLSA") and the Ohio Minimum Fair Wage Standards Act ("OMFWSA"). The trial court decided that defendants were not "employers" as defined under the FLSA and the OMFWSA because plaintiffs did not establish that they met the $150,000 revenue threshold, but invoked its "equitable powers" and awarded plaintiffs the difference between what defendants had paid them and what they should have, and awarded plaintiff the difference. The trial court, however, did not not award liquidated damages, attorney's fees and costs which were otherwise available under the FLSA and the OMFWSA. Plaintiffs appealed that portion of the decision.

The court of appeals reversed, explaining:

{¶8} According to the trial court's decision, it reasoned that the OMFWSA did not apply because     plaintiffs failed to establish that AJ Automotive and Andrew Jackson met the definition of "employer" as contained in R.C. 4111.03(D)(2), which provides in relevant part:

(2) "Employer" means * * * any individual, partnership, association, corporation, business trust, or any person or group of persons, acting in the interest of any employer in relation to an employee, but does not include an employer whose annual gross volume of sales made for business done is less than one hundred fifty thousand dollars * * *.

{¶9} The trial court's reliance on this section to deny plaintiffs protection under the OMFWSA was flawed for two reasons. First, this section applies to "overtime" and does not relate to a claim for failure to pay minimum wage, which is the bulk of Porter and White's claims. R.C. 4111.02, which governs an employer's duty to pay minimum wage, expressly states that "[e]very employer, as defined in Section 34a, Article II, Ohio Constitution, shall pay each of the employer's employees at a wage rate of not less than the wage rate specified in Section 34a of Article II, Ohio Constitution." The statute does not contain a sales threshold within the definition of an employer.

{¶10} Article II, Section 34a, Ohio Constitution sets forth that "`employer' and `employee' shall have the same meanings as under the federal Fair Labor Standards Act or its successor law * * *." Under the federal FLSA, AJ Automotive and Andrew Jackson satisfy the broad definition of "employer," which is defined as "any person acting directly or indirectly in the interest of an employer in relation to an employee * * *." 29 U.S.C. 203(d). 

The court further stated that employers have the burden of proving their business' gross volume is less than $150,000 (citing Graham v. Harbour, 20 Ohio App.3d 293, 297, 486 N.E.2d 184 (10th Dist.1984).

The lesson here is that Ohio plaintiff's employment lawyers should plead overtime and minimum wage claims under the OMFWSA as well as under the FLSA. Moreover, according to Judge Robert McClelland of the Cuyahoga County Court of Common Pleas, trial courts have equitable authority to award minimum wages and overtime, even if the FLSA and OMFWSA do not apply. Clearly a victory for plaintiffs. Kudos to plaintiffs' lawyer, Alan Goodman, for his work on this case.

Wednesday, September 23, 2015

Halliburton Agrees to Pay $18,293,557 in Overtime Wages

The Department of Labor reports:

In one of the largest recoveries of overtime wages in recent years for the U.S. Department of Labor, oil and gas service provider, Halliburton, has agreed to pay $18,293,557 to 1,016 employees nationwide. The department’s Wage and Hour Division investigated Halliburton as part of an ongoing, multi-year compliance initiative in the oil and gas industry in the Southwest and Northeast.

Monday, September 14, 2015

Training American Workers For the Global Economy

The U.S. Department of Labor announced today that it has awarded $13 million to Catholic Relief Services to train Honduran and El Salvadoran workers for the global economy. While I think that's a great idea, shouldn't that money be used train Americans to compete in the global economy? Just a quick thought.Labor Department Announcement

Thursday, August 13, 2015

WHD News Brief: US Department of Labor signs agreement with Alaska Department of Labor and Workforce Development to protect workers from misclassification [08/13/2015]

WHD News Brief: US Department of Labor signs agreement with Alaska Department of Labor and Workforce Development to protect workers from misclassification [08/13/2015]

Friday, July 3, 2015

Overtime Pay for More Workers

The Huffington Post reports the Obama Administration is making good on its promise to bring more employees under the protections of the Fair Labor Standards Act: 

On Monday, the White House unveiled a major reform that should guarantee overtime coverage for salaried workers earning less than $50,440 per year. If the proposal goes into effect in 2016 as planned, an estimated 5 million new workers will be eligible for time-and-a-half pay, the standard overtime rate in the U.S., whenever they work more than 40 hours a week.

Under current law, professional, executive or administrative employees are exempt from overtime law as long as they earn $455 per week. That comes out to $23,660 per year. If the White House’s proposal becomes law then such employees making less than $970 per week, or $50,440 per year, will be entitled to receive overtime pay.

Friday, June 19, 2015

FedEx will pay $227M to settle suits alleging it misclassified its delivery drivers

From the ABA Journal

Thursday, May 14, 2015

Sixth Circuit Reverses Summary Judgment in Race Discrimination Case

        The U.S. Court of Appeals for the Sixth Circuit (which hears appeals from U.S. district courts in Michigan, Ohio, Kentucky and Tennessee) issued a plaintiff-friendly opinion in a race discrimination case on May 7, 2015.

        In Wheat v. Fifth Third Bank, No.13-4199 (6th Cir., May 7, 2015), the plaintiff, an African-American, initiated a verbal confrontation with a Caucasian co-worker. Their discussion ended when plaintiff went to his desk but the co-worker soon approached plaintiff and reignited the argument. They went to a hallway, argued back and forth and, according to plaintiff’s deposition testimony, the co-worker swatted his arm as he turned to return to his desk. Plaintiff admitted calling his co-worker a “bitch” numerous times. The co-worker admitted telling plaintiff that plaintiff did not know what the co-worker was capable of doing. A human resources representative met with plaintiff first. Plaintiff was not entirely cooperative during the interview but the record contained disputed facts and inferences as to what occurred. The co-worker was then interviewed. He essentially said he thought the two simply were having a bad day. Both employees were sent home but plaintiff was told not to report to work until notified. The bank terminated plaintiff for violating its workplace violence and anti-harassment policies, making a threat of physical violence, violating the bank’s “core values.” The bank issued discipline to the co-worker but did not terminate him. Plaintiff filed an administrative charge with the Ohio Civil Rights Commission. Upon receiving the charge the bank reopened its investigation and ultimately decided to terminate the co-worker as well.  

    The value of this case to plaintiff’s counsel is the court’s discussion of how summary judgment is supposed to work in the familiar McDonnell Douglas indirect evidence discrimination case. Gratifying in particular is the court’s citation to Reeves v. Sanderson Plumbing Prods.,Inc., 530 U.S. 133, 142 (2000), with respect to the third step of the McDonnell Douglas concerning pretext. Quoting Reeves the court said:

However, the burden on the defendant at this stage of the McDonnell Douglas analysis is not to prove the existence of a nondiscriminatory reason for the adverse employment action. Rather, as the Supreme Court has instructed, “This burden is one of production, not persuasion; it ‘can involve no credibility assessment.’” (Quoting St. Mary’sHonor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)).

Our analysis of the pretextual nature of the proffered justifications for Fifth Third’s employment decision again must be overlaid with an understanding of the summary-judgment principles at play. In other words, at this preliminary stage of the litigation, Wheat need only identify genuine disputes of fact regarding the legitimacy of the defendant’s stated reasons in order to withstand a motion for summary judgment. We conclude that the plaintiff has met that burden. 

       The Wheat case will be cited often by discrimination plaintiffs in cases in this circuit. It is without question a useful tool in overcoming summary judgment motions by employers and getting cases to trial.

Sunday, May 3, 2015

Supreme Court Determines Scope of Judicial Review of EEOC Pre-Suit Conciliation Efforts

Before bringing an employment discrimination lawsuit in federal court under Title VII of the Civil Rights Act of 1964, an employee must first file a charge of discrimination with the Equal Employment Opportunity Commission. The EEOC investigates and determines whether there is reason to believe that discrimination occurred. If the Commission finds makes a no probable cause finding it issues a right to sue letter to the employee, who can then file a discrimination case in federal court under federal law.

Likewise, if the EEOC finds reason to believe that discrimination occurred, it must engage in conciliation efforts before filing suit in its own name. Can employers defend on the ground that the EEOC did not fulfill its pre-suit obligation to conciliate? In other words, do courts have authority to review the EEOC’s conciliation efforts and, if so, to what extent?

The United States Supreme Court addressed these issues in an opinion announced on April 29, 2015, in Mach Mining, LLC, v. EEOC, 575 U.S. ____ (2015). There, a woman filed a charge with the EEOC claiming that Mach Mining had refused to hire her as a coal miner because of her sex. The Commission investigated and found reasonable cause to believe that Mach Mining had discriminated. As legally required, the EEOC invited both the company and the complainant to participate in “informal methods” of dispute resolution. A year later, the EEOC sent Mach Mining a second letter, stating that conciliation efforts had occurred and were unsuccessful, and that any further efforts would be futile. It appeared that nothing had happened in between the dates of the two letters – no conciliation meeting, no discussions, simply nothing.

The EEOC sued Mach Mining in federal court alleging sex discrimination. Mach Mining argued that the EEOC had failed to engage in conciliation efforts prior to filing suit. The trial court decided that it should review and determine whether the EEOC had made a sincere and reasonable effort to conciliate. The court of appeals disagreed, finding that the EEOC’s conciliation efforts are not subject to judicial review. 738 F. 3d 171, 177 (7th Cir. 2013).

The Supreme Court accepted the case to address whether and to what extent the EEOC’s attempt to conciliate is subject to judicial review.  The Court disposed of the first issue by holding  courts are empowered to review the EEOC’s conciliation efforts.

The second question required the Court to balance administrative agency discretion and judicial review thereof. The Court decided that “the proper scope of judicial review matches the terms of Title VII’s conciliation provision.” Thus, the conciliation provision requires the EEOC to “inform the employer about the specific allegation and describe both what the employer has done and which employees (or what class of employees) have suffered as a result.”  The EEOC must then “try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice.”  Judicial review is limited to review of these requirements, the Court decided.

The Court reiterated that absent contrary evidence ‘[a] sworn affidavit from the EEOC stating that it has performed the obligations noted above but that its efforts have failed will usually suffice to show that it has met the conciliation requirement. (Citing United States v. Clarke, 573 U. S. ___, ___ (2014) (slip op., at 6)). The Court remanded for further proceedings.

Thursday, April 30, 2015

Comcast Corporation settles charges of sex and race discrimination

Company will pay nearly $190K in back wages and interest to 96 former and current female employees and 100 minority job applicants; reform hiring practices.

Thursday, April 23, 2015

Overtime Retaliation Based on Verbal Complaints to Employer Upheld

          Plaintiff Darnell Greathouse complained to the company president that he had not been paid for several months. The employer told him he’d pay when he felt like it, then drew a gun and pointed it at Greathouse. The United States Second Circuit Court of Appeals reversed the lower court’s decision and decided that a verbal complaint to an employer about non-payment of wages and overtime can be illegal retaliation. Greathouse v. JHS Security Inc., No. 12‐4521‐cv (2nd Cir., Apr. 20, 2015)

          Section 215(a)(3) of the Fair Labor Standards Act (“FLSA”) makes it unlawful “to discharge or in any other manner discriminate against any employee because such employee has ‘filed’ any complaint *** related to” the FLSA’s provisions. Basing its decision on the U.S. Supreme Court’s opinion in Kasten v. Saint‐Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), the appellate court overruled its prior decisions which had held that FLSA retaliation had to stem from a written complaint. The Court took a step not taken by the Supreme Court in Kasten and held that the “complaint” specified in section 215(a)(3) can be made to the employer and does not require a complaint filed with a government agency, as long as – pursuant to Kasten – the complaint is “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” Kasten, 131 S. Ct. at 1335. The court remanded the case to the district court for reconsideration of plaintiff’s motion for default judgment on his FLSA retaliation claim.

Sunday, April 12, 2015

Disability Discrimination, Evidence, and Getting to Trial

       Getting past summary judgment and to trial is what it’s all about. To do that takes evidence. Sometimes trial courts lose their way and by weighing the evidence submitted on summary judgment. That’s what happened in Nigrov. Sears, Roebuck and Co., No. 12-57262 (9th Cir., Apr. 10, 2015).  Fortunately for plaintiff the U.S. Ninth Circuit Court Appeals recognized the error and sent the case back to the district court for trial.

       Plaintiff suffers from ulcerative colitis. Following his termination he brought three disability discrimination claims: (1) termination because of disability; (2) failure to accommodate a disability; and (3) failure to engage in an interactive process to find a reasonable accommodation. Plaintiff’s evidence consisted of his testimony that Sears’ managers and supervisors told him that “[i]f you’re going to stick with being sick, it’s not helping your situation. It is what it is. You’re not getting paid, and you’re not going to be accommodated,” and that he was told not to be concerned about his pay issue because he was “not going to be here anymore.” The district court viewed this evidence as “self-serving.” The Ninth Circuit correctly viewed it for what it was: evidence.

       Plaintiff also presented evidence that his direct supervisor had granted a late start on an as-needed basis but the store manager still required him to arrive at the regular start time. Summary judgment was improper because a reasonable jury could infer that the store manager’s unwillingness to accommodate compelled plaintiff to arrive on time every day despite his need to arrive later.

       Plaintiff’s third claim survived based on evidence that Sears’s failure to accommodate had a “chilling effect” on his right to discuss accommodations. More to the point, the store manager’s statement to plaintiff that “You’re not getting paid, and you’re not going to be accommodated,” was direct evidence that Sears unlawfully refused to discuss accommodations.

     As the Ninth Circuit said, “it should not take much for plaintiff in a discrimination case to overcome a summary judgment motion.” All it takes, of course, is evidence

Saturday, April 11, 2015

Equal Protection, LGBT and Religious Freedom

             An Executive Order signed by President Obama took effect on April 8, 2015 barring discrimination against members of the LGBT community working on federal projects. The Office of Federal Contract Compliance Programs is responsible for enforcement of the President’s initiative. When will Congress finally pass legislation banning discrimination on the basis of sexual orientation and gender identity? Not until Republicans are replaced with enlightened politicians who understand that equality means equality for everyone.

            Over the last few weeks I corresponded with radio talk show host Peter Heck of Indianapolis about Indiana’s “religious freedom” law. I must have baffled him in my final position statement when I pointed this out to him:

I think the freedom argument works both ways. A person isn't free if the government sanctions discrimination against them. That's tyranny. Under your argument anti-discrimination laws are tyrannical because the government is forcing people to behave a certain way. 

Moreover, the RFRA was enacted to appease one and only one religion. Indiana legislators I believe did not intend to protect the rights of the Muslim community, some members of which can now deny with impunity business services to "infidels" based on conscience. 

I note that Indiana's anti-discrimination law states that "[i]t is the public policy of the state to provide all of its citizens equal opportunity for education, employment, access to public conveniences and accommodations ***." The statute then identifies the currently recognized protected classes (race, religion, gender, etc.). Yet, certain Indiana citizens are not covered by this Indiana public policy despite the fact that the public policy encompasses "all of its citizens." I would argue that any law that sanctions discrimination against any citizen violates the public policy. 

Providing business services to all citizens is the price paid for participation in society. If a person objects on the basis of "religious freedom" then the solution is clear: live like the Amish, separate and apart from mainstream society.

            He had no response and that was the end of the discussion. For me at least it’s easy to see why. If all citizens are guaranteed equal opportunity employment rights, then how can the law not provide equal rights to any segment of the citizenry? Yet that is what employment anti-discrimination laws accomplish --  courts interpret them to allow discrimination against the LGBT community. Equal does not mean equal when it comes to protection against employment discrimination. Perhaps the key to changing the common law is to make an equal protection argument. This I will do the next time an opportunity arises.

Friday, April 10, 2015

Future Hire and Employment Restraints in Settlement Agreements - Valid?

          Settlement agreements in Ohio employment lawsuits often include a provision restricting the employee from applying or working for the defendant in the future. These provisions further often provide that the defendant has the right to terminate the plaintiff if it ever acquires a future employer of the plaintiff.  

          The U.S. Ninth Circuit Court of Appeals addressed such provisions under California law in Golden v. Cal. Emergency Physicians, No. 12-16514 (9th Cir., Apr. 8, 2015). The parties reached a settlement agreement in open court by which the plaintiff waived his right to employment with the defendant or at any facility that the defendant owned or with which it might provide physician services in the future.  A written agreement was prepared but the plaintiff refused to sign. Plaintiff argued that the agreement was void under Section 16600 of the California Business and Professions Code. That section provides that “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” In other words, employee non-compete agreements are void in California. The district court ordered enforcement of the agreement, reasoning that the settlement agreement did not prevent the plaintiff from working as a physician and, therefore, was not a non-compete prohibited under Section 16600.

          After addressing a jurisdictional question, the appellate court decided that the district court had abused its discretion by limiting the reach of Section 16600 to non-compete agreements. The court decided that Section 16600 is much broader and most likely prohibits agreements whereby a plaintiff waives future employment opportunities. The court remanded the case to the district court for further factual development and consideration.

          Unfortunately Ohio does not have a statute on the books akin to California's Section 16600. In Ohio non-compete agreements are valid if reasonable in geographic and temporal proximity. This means that if the non-compete limits the employee within a reasonable geographic area and only for a reasonable period of time then it is enforceable. One can argue that settlement agreement provisions like the one in Golden are illegal in Ohio if unreasonable. Is there a per se unreasonableness argument to be made? Of course. That is something I will consider doing when the right case comes along.

Tuesday, April 7, 2015

Plaintiff Wins Based On Only Prima Facie Case in Reverse Discrimination Failure to Promote Case

      When an appellate court sums up plaintiff’s evidence as presenting a “fumbling, bumbling case of determined efforts to deny a promotion,” it’s a good day at the office for the plaintiff. That’s how the U.S. Fifth Circuit Court of Appeals described the evidence in McMullin v. Mississippi Department of Public Safety, No. 14-60366 (Apr. 6, 2015).

          This was a rather basic case of discrimination in the failure to promote context involving a law enforcement position. The case illustrates what happens when an employer prevaricates and is unprepared for questioning by an astute plaintiff’s lawyer. The plaintiff was white and the successful candidate was black. In employment discrimination cases that makes no difference – it’s all about equal protection of the law, right? – so the case goes in the books as a reverse race discrimination case.

          The plaintiff easily made her plaintiff’s prima facie under the McDonnell Douglas standard, as modified for failure to promote cases: (1) she is a member of the protected class; (2) she sought and was qualified for a position for which applicants were being sought; (3) she was rejected for the position; (4) the employer hired a person outside of the plaintiff’s protected class or continued to seek applicants with the plaintiff’s qualifications. This burden is very light. The real test for plaintiffs in these cases is responding to the employer’s evidence of a legitimate, nondiscriminatory reason for its promotion decision.

       In McMullin, though, the defendant employer offered no evidence of the reason for its decision. It “perfunctorily state[d] that it ‘has provided a legitimate, non-discriminatory reason for its decision ***.’ Beyond this statement, the Department provide[d] no discussion, explanation, or elaboration of its purported legitimate reason(s) for its promotion decision. This will not do. The Department’s burden was light. It needed only to produce or point to evidence of a non-race-based reason for its employment decision; yet, it wholly failed to do this.”

          What this meant is that plaintiff’s simple prima facie case, all by its lonesome, was enough to survive summary judgment and get the case to a jury. And getting a case to a jury is what it is all about.

        Not to mention, it probably didn’t hurt that the person who received the promotion had been fired twice by the employer, once for having sex with a confidential informant and later for not accounting to cash seized from a suspect and engaging in sexually explicit behavior during a vacation, among other antics. He was reinstated both times. Plaintiff’s record was clean.

         If the employer has any brains it will get this case settled. The Mississippi Department of Public Safety doesn’t need the publicity – taxpayer dollars at work once again for the citizens of the state.

Saturday, April 4, 2015

Failure to Accommodate in Disparate Treatment Discrimination Cases -- Young v. UPS

            I’ve been meaning to share my thoughts about the U.S. Supreme Court’s decision in Young v. United Parcel Service, 575 U.S. ___ (Mar. 25, 2015). Work sometimes gets in the way, of course. But passage of time allowed me to jot down the following thoughts about what the decision means and its impact on discrimination law.

          Young addresses pregnancy discrimination and how plaintiffs can prove it in a slightly different context than your typical pregnancy discrimination case. Let’s first take a look at a district court decision filed on the same day as the Supreme Court’s decision in Young. In Rogers v. Southeast Psychiatric Services, Inc., 1:14-cv-354 (M.D. Ala., Mar. 25, 2015). Plaintiff Kimberly Rogers worked as a psychologist for the defendants’ psychiatric medical practice. Defendants designed and built a new office building, which included a space specifically for Rogers’ practice. Within weeks of the move defendants put Rogers’ nameplate on the door of her new office. Later that same day, Rogers announced she was pregnant. Defendants’ executive committee met one or two days later and decided to terminate Rogers’ employment.  

          The district court recited the basic McDonnell Douglas framework of analysis:

[T]he plaintiff first has the burden of establishing a prima facie case of discrimination, which creates a rebuttable presumption that the employer acted illegally. "To set out a prima facie case, the plaintiff may show that: (1) [s]he is a member of a protected class; (2) [s]he was qualified for the position; (3) [s]he suffered an adverse employment action; and (4) [s]he *** was treated less favorably than a similarly-situated individual outside h[er] protected class." (Citations omitted.)

          The parties did little in the way of arguing the fourth element; however, the court noted that “a plaintiff does not have to show a comparator if she *** presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.” (Citations omitted.)

          The court reviewed the evidence and decided that Rogers presented a prima facie case, there was evidence that defendants' proffered reasons were pretextual and that summary judgment should be denied.

          The evidence in Rogers can be categorized as a typical pregnancy discrimination case under Title VII. The same cannot be said of the record before the Supreme Court in Young.  Young worked for UPS as a part-time driver. UPS required drivers like Young to be able to lift parcels weighing up to 70 pounds. When Young became pregnant her doctor imposed a lifting restriction of 20 pounds.  UPS told Young she could not work while under a lifting restriction. Young consequently stayed home without pay during most of the time she was pregnant and eventually lost her employee medical coverage.

          Young sued under Title VII’s pregnancy protections claiming that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. She relied upon Title VII’s requirement that “women affected by pregnancy *** 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 ***.” Young argued that UPS accommodated non-pregnant drivers by providing light duty assignments. UPS argued in response that Young was not similar to the other drivers because they had become disabled on the job, had lost their Department Transportation certifications, or suffered from a disability covered by the Americans with Disabilities Act.  UPS’s point was that there were plenty of other non-pregnant drivers who did not receive light duty assignments because they, like Young, did not fall into one of these three categories.

          The plaintiff’s dilemma in Young was that (1) she had been treated the same as a subset of other persons not so affected [by pregnancy] but similar in their ability or inability to work as she was; while at the same time (2) she had not been treated the same as another subset of other persons similar in their ability or inability to work, but for whom UPS had granted an accommodation (i.e., other employees with physical limitations). Young, of course, argued that not having been treated the same as one of the subsets ended the matter. She posited in her Brief that pregnant workers who are similar in the ability to work must receive the same treatment even if another subset of nonpregnant workers do not receive accommodations. The Court paraphrased her argument thusly: because pregnant and nonpregnant workers were treated differently, “that is the end of the matter, she must win; there is no need to refer to McDonnell Douglas."

          The Court rejected Young’s argument:

The problem with Young’s approach is that it proves too much. It seems to say that the statute grants pregnant workers a “most-favored-nation” status. As long as an employer provides one or two workers with an accommodation—say, those with particularly hazardous jobs, or those whose workplace presence is particularly needed, or those who have worked at the company for many years, or those who are over the age of 55—then it must provide similar accommodations to all pregnant workers (with comparable physical limitations), irrespective of the nature of their jobs, the employer’s need to keep them working, their ages, or any other criteria. *** We doubt that Congress intended to grant pregnant workers an unconditional most-favored-nation status.

          The Court solved the dilemma presented by the record by returning to the tried and true McDonnell Douglas framework, modifying it to fit plaintiff’s failure to accommodate case:

Thus, a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing, as in McDonnell Douglas, that [1] she belongs to the protected class, [2] that she sought accommodation, [3] that the employer did not accommodate her, and [4] that the employer did accommodate others “similar in their ability or inability to work.”

          Under this analysis it is unnecessary for a plaintiff to prove she was qualified because in the context of a failure to accommodate disparate treatment case qualification is irrelevant. Likewise, the Court’s modified prima facie test dispenses with a showing of an adverse employment action and replaces it with the requirements of seeking an accommodation and failure to accommodate, which is in essence the adverse employment action. The employer can then offer a legitimate, nondiscriminatory reason for its failure to accommodate. If the employer does so, then the plaintiff must show that the employer’s proffered reasons are in fact pretextual.

          The critical part of the test is and remains what it has always been in a disparate treatment case – whether the plaintiff’s evidence demonstrates she was treated less favorably than similarly-situated other employees because of the protected trait. This, when combined with evidence of pretext, raises an inference of intentional discrimination and gets a case to the jury.

          The Court’s suggestions about how a plaintiff can show pretext gave rise to the crux of the Justice Scalia’s dissenting opinion.  It would have been better if the majority had made explicit that it was merely suggesting how plaintiff could establish her case on remand, much as when explicating the four factors in Daubert (“Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test.”) The Court wrote:

We believe that the 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 plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. (Emphasis supplied.)

          In my mind the majority was simply suggesting a way for plaintiff to prove her case. The majority was not creating a rule that must be satisfied in all cases.

          Justice Scalia, joined by Justices Kennedy and Thomas, agreed with the majority that the key consideration is whether the plaintiff was treated less favorably than similarly-situated other employees:

[T]he right reading of the same-treatment clause prohibits practices that discriminate against pregnant women relative to workers of similar ability or inability.

          The dissenters, however, viewed what I believe were only suggestions as instead written-in-stone rules emanating from the statute. Justice Scalia wrote:

It takes only a couple of waves of the Supreme Wand to produce the desired result. Poof!: The same-treatment clause means that a neutral reason for refusing to accommodate a pregnant woman is pretextual if “the employer’s policies impose a significant burden on pregnant workers.” Poof!: This is so only when the employer’s reasons “are not sufficiently strong to justify the burden.” How we got here from the same-treatment clause is anyone’s guess.

          Justice Scalia took further exception because the majority proceeded “to bungle the dichotomy between claims of disparate treatment and claims of disparate impact.”

In the topsy-turvy world created by today’s decision, however, a pregnant woman can establish disparate treatment by showing that the effects of her employer’s policy fall more harshly on pregnant women than on others (the policies “impose a significant burden on pregnant workers,”) and are inadequately justified (the “reasons are not sufficiently strong to justify the burden,”.). (Citations omitted.)

          To be fair, the majority’s decision did not create such a “topsy-turvy world.” The focus of the majority’s analysis remains on whether the plaintiff was treated less favorably than nonpregnant employees similar in their ability or inability to work. Plaintiff on remand still has to convince the district court judge that a reasonable jury could infer discriminatory motive.

          Justice Scalia would have held that “because Young has not established that UPS’s accommodations policy discriminates against pregnant women relative to others of similar ability or inability, she has not shown a violation of the Act’s same treatment requirement.” Justice Scalia’s reference to UPS’s policy stems from an unjustified revision of plaintiff’s claim into one of disparate impact.  While UPS did have a policy, plaintiff did not challenge the policy. Her complaint was that she was not treated the same as other similarly-situated employees who were not pregnant. Justice’s Scalia conjured a strawman argument by focusing on an employment policy not under attack. The ultimate issue of intentional discrimination remains and, therefore, it is entirely possible that plaintiff will on remand lose by way of summary judgment.

          The Court’s decision in Young does not effect a sea-change in discrimination law. I believe many courts will recognize that any type of evidence which has a tendency to prove pretext, be it “significant burden” and “insufficiently strong reasons” evidence or otherwise, can be used to establish intentional discrimination.

Wednesday, April 1, 2015

Tyson Foods Responds to My Letter of Concern Regarding Arkansas' New Religious Freedom Law

I am boycotting Tyson Foods products in protest over Arkansas' new "religious freedom" law. That law sanctions discrimination against the LGBT community. I contacted Tyson's public relations director yesterday to advise that I will not purchase Tyson products until Arkansas repeals its detestable legislation. The company responded quickly. I assume that Tyson used a carefully drafted boilerplate response being sent to other persons of conscience who have lodged similar protests. That's OK, because at least it indicates the company is receiving many communications in protest. 

Here is the letter:

"Mr. Neel - Thanks for your message. We appreciate the efforts of Governor Hutchinson, Senate President Pro Tem Dismang and House Speaker Gillam to resolve the controversy over HB 1228 by agreeing to reshape this bill. We implore the members of the Arkansas State Legislature to ensure that the final bill protects and preserves our religious freedom, will not allow discriminatory practices in the workplace and does not create further damage to our state's reputation."

Saturday, March 28, 2015

My Letter to the Editor of the Indianapolis Star

"Indiana's so-called "Religious Freedom" law is an abomination. No matter what your Governor says, the State of Indiana now sanctions discrimination against a minority of its citizens. It is now legal in Indiana for businesses to refuse service based on sexual orientation in the name of "God." What's next -- legalization of discrimination against Jews and Muslims based on "religious freedom."? Way to go Indiana!"

David W. Neel, Esq.

Tuesday, March 17, 2015

More Unionization, More Employee Rights Coming

Hallelujah! On April 14, 2015 the National Labor Relation Board's new union election rules take effect. While some management lawyers call them “ambush election” rules, these rules provide important safeguards of employees’ rights to organize and bargain collectively – just as Congress intended when it passed the National Labor Relations Act.

The new rules streamline the union election process. Starting next month, most union representation elections must be held ten (10) to twenty-one (21) days after an election petition has been filed. This will curb abuses by zealous employers trying to railroad the election process in order to interfere with employees’ freedom of choice. The new rules also put off disputes over voter eligibility until after the election, expedite pre-election hearings, and require employers to provide greater union access to employee contact information.

Watch for more unions across the country engaging in greater organizing efforts. The new rules should result in sizeable increases in union participation. I’ve said it before and I’ll say it again, apart from the benefits of wage and benefit bargaining, perhaps the best result for employees who gain union protection is job security. Newly unionized employees will shed their employment-at-will status, which translates into greater protection of their livelihoods.

You can learn more about changes implemented by the NLRB in its Fact Sheet on the subject.

Saturday, March 14, 2015

Summary Judgment and Trial in an Employment Discrimination Case

            A jury decided that the Diocese of Fort Wayne-South Bend Indiana refused to renew Emily Herx’s contract as an elementary school teacher because she was undergoing in vitro fertilization.  I like the court’s decision for what it says about overcoming summary judgment in an employment discrimination case:

            First, Mrs. Herx didn’t need to show prima facie case-quality comparators at the summary judgment stage because she made an adequate showing under the direct method of proof. See Docket No. 135, at 16-19. The direct method of proof can include circumstantial evidence, Whitfield v. International Truck and Engine Corp., 755 F.3d 438, 443 (7th Cir. 2014) (“A plaintiff may prevail by ‘constructing a convincing mosaic of circumstantial evidence that allows a [factfinder] to infer intentional discrimination by the decision maker.’”) (quoting Phelan v. Cook County, 643 F.3d 773, 779 (7th Cir. 2006)); Harper v. Fulton County, Ill., 748 F.3d 761, 765 (7th Cir. 2014) (“Should the plaintiff lack direct evidence, she may also point to circumstantial evidence that allows a jury to infer intentional discrimination by the decision-maker.”), and doesn’t always require a showing of better treatment of a similarly situated co-employee.

         Second, once a Title VII case proceeds to trial, the indirect method of proof - including the showing of comparators - doesn’t matter. The jury isn’t asked to evaluate whether the plaintiff has shown the prima facie required by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or even instructed on that test. Once the case gets to trial, the only issue the jury decides is whether, based on all the evidence in the case, it’s more likely than not that things would have been different had the plaintiff not been in the protected class and everything else remained the same.

Herx v. Diocese of Fort Wayne-South Bend, Inc., 1:12-CV-122 (N.D. Ind., Mar. 9, 2015).

Friday, February 27, 2015

Transgender Discrimination is Illegal

Transgender discrimination is illegal. Why? Because it is gender discrimination under Title VII of the Civil Rights Act (and O.R.C. 4112.02, Ohio’s anti-discrimination statute). Two federal appellate courts have agreed. So has the Equal Employment Opportunity Commission. These courts (the 9th and 6th appellate circuits) and the EEOC riffed off the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins. There, the Court said that making negative employment decisions based on a perception that the employee does not conform to the “gender stereotype” is discrimination under Title VII.

Transgender discrimination will rise as the labor force absorbs more transgender individuals. The law (and employment lawyers like me) will be there to protect them.

Thursday, February 26, 2015

Workplace Harassment - Severe OR Pervasive, Not Both.

The district court in Seale v. Madison Cty., Case No. 5:11-CV-0278 (N.D.N.Y., Feb. 17, 2015) (Slip. Op. at 16), makes clear that “in order to establish [a] claim for hostile work environment, a plaintiff need not show that her “working environment was both severe and pervasive; only that it was sufficiently severe or sufficiently pervasive, or a sufficient combination of these elements, to have altered her working conditions.” (Citations omitted.)

Termination for Rejection of Employer’s Demand for Repayment of Earned Overtime Is Unlawful FLSA Retaliation.

Plaintiff, the defendant company’s Director of Human Resources, was told by the CEO that he would lose his job unless he agreed to pay back his overtime earnings from several years before. Four days later Plaintiff refused to comply with this demand. The company fired plaintiff three hours later.

Temporal proximity alone may not sufficient to withstand summary judgment, but in this case plaintiff also had the CEO’s threat of termination for refusal to repay overtime.

O'Donnell v. America at Home Healthcare and Nursing Services, Ltd., Case No. 12-CV-6762 (N.D. Ill., Feb. 17, 2015).

Tuesday, February 24, 2015

Union Membership Is Good for America

More unions and more union members would be good for America. The labor force is the backbone of the American economy. Gross domestic product (GDP) is driven by a productive work force. Productivity depends upon employees who are secure in their jobs. A primary benefit of union protection is the requirement of just cause for termination from employment.

Union membership has been shrinking for the past fifty years, as shown by this interactive map of the United States.  This means that more and more employees are subject to the at-will employment doctrine. At-will employments means that employers can fire an employee for any reason or no reason, as long as it's not for an illegal reason such as discrimination.

Just cause for termination essentially means that employers must act reasonably. Unions serve the purpose of protecting members from unreasonable terminations. A grievance process culminating in arbitration proceedings would eliminate the flood of lawsuits brought for various legal claims such as wrongful termination. The body of employment law would become less obscure, as the numerous legal theories that cropped up as a way to get around the at-will employment doctrine would become unnecessary. Employees would still have the right to being claims for discrimination.

It's a win-win for employers and employees. I am not advocating in this article for all of the types of provisions found in the typical union-management contract. I am taking the position that getting rid of the at-will employment doctrine through union membership is a positive benefit for American workers and employers.

Sunday, February 15, 2015

But-For Causation and Breaking the Camel's Back in EEOC Retaliation Case - An Example

Roberts v. State, Department of YouthServices, Case No. 2:13cv335 (M.D. Ala., Feb. 11, 2015)

Arthur Roberts, Jr. was hired by the Alabama Department of Youth Services (DYS) as a Security Officer. Within his first few months of employment Roberts notified his supervisor and other administrators that he was an ordained minister and that he wished to provide volunteer pastoral services to the facility’s young men. DYS gave its approval and scheduled him to begin providing services once a month on Sunday.  McCree, Roberts’ immediate supervisor, ridiculed him about his religious activity, teasing him with comments such as “preaching the word today, Minister?” and “You going to get some saved today, ain’t you, Preacher?” McCree also told Roberts not to “come out here with that preaching shit to these kids” because “they don’t want to hear it, ” and McCree stated to another employee, “How in the world is that man [Roberts] going to come out here and preach, when he can’t perform his job he was hired to do[?]”. These comments were made over several months.  Roberts filed a charge with the Equal Employment Opportunity Commission (EEOC) and later sued DYS and McCree for religious discrimination hostile work environment claim and for retaliatory discharge.  

The district court granted summary judgment on Roberts’ religious discrimination claim. The court decided that McCree’s comments were insufficient to establish objectively severe and pervasive conduct. In other words, they were isolated, off-hand comments.  Roberts’ claim was not aided by his testimony that he was still able to perform his job duties.

However, the district court allowed Roberts’ retaliatory discharge claim to go to trial. The central evidence in support of that claim was co-worker testimony that McCree said he intended to “fire [Roberts’s] ass” if he had filed an EEOC charge.  Under University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), a retaliation plaintiff must prove that the retaliatory motive was the ‘but-for’ cause of the adverse employment action. Thus, “proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer” is required. Nassar, 133 S.Ct. at 1533.

The district court borrowed an analogy from Burrage v. United States, 134 S.Ct. 881 (2014), to explain that but-for causation can exist even when other possible motives are in the mix, such Roberts’ lackluster job performance:  

[R]etaliatory intent may still constitute a but-for cause even if it “combines with other factors to produce the result, so long as the other factors alone would not have done so--if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.” Id. at 888.

So, even though Robert’s job performance may have contributed to the termination decision, McCree’s comment that he intended to “fire [Roberts’s] ass” if he filed an EEOC complaint raised a genuine issue of material fact as to whether the EEOC charge was “the straw that broke the camel’s back.” 

Wednesday, February 4, 2015

Empathy and the Trial Lawyer

I'm meeting with a new client later today about her potential sexual harassment case. She did not want to share any information with me over the phone. So, I don't have much information to work with. All I really know is that she is a member of a protected class. That's it.

This led me think about how I approach the first meeting with a potential client. What am I trying to accomplish? What is my goal (and I'm not talking about getting a signed retainer agreement)? How can I best help the person who comes to me for help?

I think answering these questions start with empathy. "Empathy is the capacity to understand what another person is experiencing ***, ie, the capacity to place oneself in another's shoes." Empathy in my opinion is a direct link to litigation and trial strategies and outcomes. If I can understand what another person is going through then I can express to judges and juries the legal conception of that experience. This means more than pigeonholing the client's employment experience into legal elements. It means at least for me visualizing the client's experience at work. The visual has to be more than a scrapbook of snapshots over time. The visual should be like a movie because movies tell stories. The visual must be a moving picture that can be conveyed in writing and orally, as if directing a stage or screen play. This is why I tell my evidence law students to try to see in their mind's eye the facts of a lawbook case. The facts must be brought to life.

Empathy allows me to gain a sense of whether the law provides a remedy for the employee. Empathy informs me if this is someone that I can actually help. Empathy connects me to what other reasonable people are going to think about the client's workplace experience. Making that connection is key to defeating a summary judgment motion (ie., reasonable minds can come to different conclusions) and to persuading a jury to award damages.

Monday, January 19, 2015

Circuit Court Title VII Scoreboard For The Week of January 12, 2014

Employers Romp, 8-1


Plaintiff  waived appellate review of discrimination claims because she failed to make any argument about them until her reply brief. (Citing Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). Moreover, Plaintiff failed to allege that her 2006 EEO complaint included allegations of "unlawful employment practices" under Title VII.

While defendant's motions for judgment as a matter of law and a new trial were pending, the Supreme Court decided University of Texas Southwestern Medical Center Center v. Nassar, which subjected Title VII retaliation claims to a heightened standard of "but-for" causation. See 133 S.Ct. 2517, 2533 (2013). On that basis, the district court granted the government's motion for a new trial, resulting this time in a verdict for defendant.  Plaintiff argued on appeal that defendant had invited error by requesting an instruction in accordance with pre-Nassar precedent.  Court rejected this argument because plain error doctrine did not apply, as defendant had “ merely acquiesced in this Circuit's established interpretation of Title VII, which the district court was bound to apply regardless of what charge the defendant proposed.”

In this RIF case, plaintiff appealed from grant of summary judgment on age and gender discrimination claims. Court held that plaintiff’s case failed on the similarly-situated prong of the McDonnell-Douglas test.

Plaintiff claimed that defendant denied her a promotion and pay raises and chose not to rehire her based on race. After discovery, the district court granted summary judgment for defendant because plaintiff could not establish a prima facie case of discrimination on her failure-to-rehire claim, and because Jenkins failed to exhaust EEOC remedies. Court affirmed because plaintiff failed in the first instance to respond to the motion for summary judgment and comparator evidence showed that of the twenty-eight job applicants hired by defendant, twenty-seven were African American and one was multiracial.

Pro se discrimination plaintiff appealed from the dismissal with prejudice of her sixth amended complaint and from the denial of her motion to file a seventh amended complaint. Affirmed because the sixth amended complaint did not, after numerous warnings, make a short and plain statement of her claims and instead was a “shotgun pleading” (one in which "it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.")

Chang v. MetroPlus Health Plan, 14-665-cv (2nd Cir., Jan. 13, 2015)

Pro se appellant challenged summary judgment on Title VII, ADA and NYCHRL. “[D]istrict court properly granted summary judgment to the defendants for the reasons stated in its thorough and well-reasoned memorandum and order.”

Court affirmed judgment after an eight-day bench trial on national origin/failure to promote to full professor claim.

Former Police Chief appealed summary judgment on race discrimination and retaliation claims.  Evidence of racial animus was a remark by decisionmaker made to his father-in-law that he was going to "get rid of the black son-of-a-bitch who drives the BMW." Court of appeals affirmed, deciding that the comment was inadmissible hearsay (without perhaps recognizing that the remark was an Evid. R. 801(d)(2) admission).


In Greengrass v.International Monetary Systems Ltd., 13-2901(Seventh Circuit, Jan.12, 2015), Plaintiff sued her former employer alleging retaliation for filing an EEOC complaint. Plaintiff claimed that defendant retaliated by naming her in its annual SEC filings and casting her complaint as "meritless." The district court granted summary judgment for defendant on the ground that plaintiff lacked evidence showing a causal link between her EEOC filing and the alleged retaliatory act. Reversing the Seventh Circuit decided that defendant engaged in an adverse employment action when it listed plaintiff’s name in its SEC filings. Naming EEOC claimants in publicly available SEC filings could dissuade a reasonable worker from making or supporting a charge of discrimination, which is “the essence of a materially adverse employment action.” As for evidence of discriminatory animus, the court cited emails evincing disdain for the EEOC process and expressing confidence that it could avoid a "large damages award" because, without the EEOC's involvement, plaintiff "likely [would not] have the resources for a lengthy court fight." The court also pointed to the forwarding of her EEOC complaint to an alleged harasser with the message, "Call me before you explode." Further, the defendant’s multiple shifts in policy -- from not including litigants' names in the SEC filings, to listing them, and then not including them again—could lead a reasonable juror to find that defendant was "dissembling."

Sunday, January 18, 2015

Naming EEOC Claimants In SEC Filings Is An Adverse Employment Action

In Greengrass v. International Monetary Systems Ltd., 13-2901(Seventh Circuit, Jan.12, 2015), Plaintiff sued her former employer alleging retaliation for filing an EEOC complaint. Plaintiff claimed that defendant retaliated by naming her in its annual SEC filings and casting her complaint as "meritless." The district court granted summary judgment for defendant on the ground that plaintiff lacked evidence showing a causal link between her EEOC filing and the alleged retaliatory act. 

Reversing, the Seventh Circuit decided that defendant engaged in an adverse employment action when it listed plaintiff’s name in its SEC filings. Naming EEOC claimants in publicly available SEC filings could dissuade a reasonable worker from making or supporting a charge of discrimination, which is “the essence of a materially adverse employment action.” As for evidence of discriminatory animus, the court cited emails evincing disdain for the EEOC process and expressing confidence that it could avoid a "large damages award" because, without the EEOC's involvement, plaintiff "likely [would not] have the resources for a lengthy court fight." The court also pointed to the forwarding of her EEOC complaint to an alleged harasser with the message, "Call me before you explode." Further, the defendant’s multiple shifts in policy -- from not including litigants' names in the SEC filings, to listing them, and then not including them again—could lead a reasonable juror to find that defendant was "dissembling."

Visit me at!

Saturday, January 17, 2015

District Court Title VII Scoreboard For The Week of January 12, 2014: Employers Best Employees, 14-1

With the exception of one decision, and an interesting one at that (described below), employers bested employees in these cases: DePriest v. Milligan (E.D. Ark., Jan. 12, 2015) – MSJ - gender discrimination; Wyre v. Bollinger Shipyards, Inc. (E.D. La., Jan.14, 2015) – 12(b)(6) - failure to provide protective equipment on the basis of gender is not an “ultimate employment decision” – conclusory allegations fails to state claim of race discrimination; Brogdon v. University of Delaware (D. Del., Jan. 13, 2015) – 12(b)(6) - race discrimination and retaliation; Allison v. Wal-Mart Stores, Inc. (S.D. Ala., Jan. 12, 2015) – MSJ – sex, religion and retaliation; Spurlock v. University of Toledo (N.D. Ohio, Jan. 15, 2015) - rejecting plaintiff’s request for equitable tolling of limitations period; Hughes v. Goodwill Industries of Arkansas Inc. (E.D. Ark., Jan. 13, 2015) - 12(b)(6) - individual co-workers cannot be held personally liable under Title VII; Killian v. Donahoe (E.D. La., Jan. 15, 2015) – 12(b)(6) – failure to exhaust; Wint v. Palm Beach County S.D. Fla., Jan. 14, 2015) - Rooker-Feldman doctrine (federal district courts cannot review state court final judgments); Broshears v. Johnson (E.D. Ky., Jan. 13, 2015) – MSJ – federal employee – failure to exhaust; Rhodes v. Montgomery County (D. Md., Jan. 13, 2015) – MSJ - reasonable accommodation offered; Macklin v. FMC Transport, Inc. (E.D. Ark. Jan. 12, 2015) – MSJ – race; King v. Mansfield University of Pennsylvania (M.D. Pa., Jan. 15, 2015) – Motion to set aside taxation of costs after Title VII loss denied; Azim v. Tortoise Capital Advisors (D. Kan., Jan. 14, 2015) - defendants’ motion for a protective order granted; Fatemi v. Rahn (E.D. Ark., Jan. 12, 2015) – MSJ - HIPAA-related claims. 

However, a transgendering male plaintiff claiming gender discrimination survived a motion to dismiss in Lewis v. High Point Regional Health System (E.D.N.C., Jan. 15, 2015).  Defendant denied employment to plaintiff. Defendant moved to dismiss on the ground that Title VII does not provide a cause of action for discrimination based on sexual orientation. The court rejected this argument because the case does not involve sexual orientation and transgendered status has not been addressed by the Supreme Court or in Circuit precedent.  

First Ohio R.C. 4112.02 Discrimination Case of 2015 Won By Employer.

Employees demoted and later terminated by Family Video have lost their appeal for failure to offer sufficient evidence of pretext.  Brogan v. Family Video Movie Club, Inc., 2015-Ohio-70 (Sixth District, Lucas Cty.,Jan. 9, 2015).

Thursday, January 15, 2015

Recent 404(b) “Other Acts” Cases In Title VII Employment Context.


Federal Rule of Evidence 404(b) is the so-called “prior bad acts” rule. It provides in relevant part:

(b) Crimes, Wrongs, or Other Acts. 
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

In sum, Rule 404(b) prohibits an inference based on a person’s character: (1) a person did something; (2) the person’s action says something about the person’s character; and (3) the person acted consistent with that character in connection with the event that gave rise to the lawsuit.  The rule arises mostly in criminal cases but does come up in civil cases, particularly employment cases.  In general, the forbidden inferential path in employment cases is along these lines: (1) the employer discriminated against another employee; (2) the employer is a discriminator; and (3) the employer discriminated in this case.

There is a big “however,” however.  Rule 404(b) permits prior bad acts (or, more appropriately “other act evidence”) if the other act is offered not to prove conduct in conformity with character but for a legitimate purpose. The rule gives a non-exhaustive list of permissible purposes, for example, to prove motive or intent. Generally then in employment cases a proper inferential path would be: (1) the employer took an adverse employment action against another employee under circumstances indicating discrimination; (2) the other act tends to prove the employer’s discriminatory state of mind; (3) the employer’s state of mind came into play in the case at hand. Rule 404(b) evidence in employment cases is sometimes referred to as “me too” evidence.

Other evidentiary filters then apply if evidence is offered for a proper purpose under Rule 404(b). The evidence must be relevant (Rule 401). In employment discrimination cases motive and intent are relevant. Moreover, the other act evidence must pass the test of conditional relevance under Rule 104(b). This means essentially that the judge must make a preponderance of the evidence finding that a reasonable juror could decide that the employer acted with discriminatory intent in connection with the other employee. Finally, because the impermissible character inference can still arise from the evidence, the court must determine that the danger of unfair prejudice arising from an inference from character does not substantially outweigh the probative value of the evidence when used for the legitimate purpose (e.g., to prove motive).  See generally Huddleston v. United States, 485 U.S. 681, 689-90 (1988).

Thus, as stated in Aboubaker v. County of Washtenaw, 11-13001 (E.D. Mich., Feb. 27, 2014):

A three-step inquiry as to admissibility of 404(b) evidence is used: 1) whether sufficient evidence exists that the prior act occurred; 2) whether the "other act" is admissible for a proper purpose under Rule 404(b); and, 3) determine whether the "other acts" evidence is more prejudicial than probative under Rule 403. United States v. Poulsen, 655 F.3d 492, 508 (6th Cir. 2011).

To reduce or eliminate the danger that the jury will misuse the other act evidence and draw an inference based on character, the court may give a limiting instruction under Rule 105. 

That said, following are employment/Rule 404(b) cases decided in 2014.

Other Act Evidence Held Inadmissible.

Beard v. AAA of Michigan, No. 14-1294 (6th Cir., Nov. 20, 2014).

Race discrimination and retaliation case. At trial, plaintiff was impeached with records from his former employer containing negative comments and feedback about his leadership. Plaintiff argued on appeal that the district court erred in admitting these records because they were inadmissible under Rule 404(b) and were not disclosed in discovery. Court of appeals found that (1) the prior employment records were used to impeach plaintiff’s credibility, a proper purpose under Rule 404(B), and (2) pretrial disclosure was not required because such disclosure is limited to evidence being admitted for purposes "other than solely for impeachment." Fed.R.Civ.P. 26(a)(3).

Jackson v. United Parcel Service, Inc., 13-15168 (11th Cir., Nov. 20, 2014).

Race and gender discrimination and retaliation case. Plaintiff argued that the trial court should have considered other act evidence of discrimination and retaliation aimed at her co-workers ("me too" evidence) as proof of defendant’s  intent to discriminate under Evid. R. 404(b). Court of appeals disagreed because, although use of "me too" evidence can be admitted (citing Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1285 (11th Cir. 2008), the evidence pertained to a different decisionmaker.

Crosby v. Gregory, CV 212-140 (S.D. Ga., Sept. 10, 2014).

Plaintiff attempted to demonstrate a pattern of pregnancy discrimination with past acts of pregnancy discrimination by same decisionmaker. Although "me too" evidence can be admissible under Rule 404(b) to prove intent where same supervisor is implicated, "courts are reluctant to consider prior bad acts in this [employment discrimination] context where those acts do not relate directly to the plaintiffs." (Quoting Denney v. City of Albany, 247 F.3d 1172, 1189 (11th Cir. 2001). Distinctions matter, such that a plaintiff must provide evidentiary details; “a hodgepodge of unproven allegations of discrimination against others does not create an inference that [the plaintiff herself] was discriminated against ***.” (Citing Hughes v. City of Lake City, No. 3:12-CV-158, 2014 WL 1293525, at *5 (M.D. Fla. Mar. 28, 2014) (citations omitted); Holifield v. Reno, 115 F.3d 1555, 1563 (11th Cir. 1997)).

Ford v. County of Hudson, Civ. 07-5002 (D.N.J., May 16, 2014).

Defendants filed a motion in limine to exclude independent investigative report pertaining to alleged harassment and retaliation by former director of Department of Corrections and certain deputies culminating in settlements (including one with plaintiff). Although report was probative of custom and policy its finding of retaliation by DOC officials “indirectly” invited the forbidden character inference prohibited by Rule 404(b).  Court excluded report in its entirety but permitted testimony of report’s existence, its general nature, and that certain officials retaliated and/or discriminated against certain employees. Court decided to give limiting instruction that the evidence is relevant only to liability of defendant but not whether individual defendants retaliated against plaintiff.  Court stated it would consider admitting limited excerpts from report if shown to be “particularly relevant.”

El-Hallani v. Huntington National Bank, 13-cv-12983 (E.D. Mich., Mar. 13, 2014).

Not an employment case but close enough to analogize. Arab-American plaintiffs alleged that defendant closed their bank accounts due to their race, ethnicity, and/or religious affiliation. Granting defendant’s Civ. R. 12(b)(6) motion to dismiss with leave to refile, the court decided that use of the "doctrine of chances" evidentiary theory (i.e., serial unusual events cannot be dismissed as coincidence, which seems akin to statistical randomness analysis but without the analysis) sometimes applied under Michigan law cannot replace an Evid. R. 404(b) analysis, and does not permit plaintiff to avoid stricter federal pleading standard under Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). 

Wagoner v. J.P. Morgan Chase Bank, N.A., 1:11-cv-01054 (S.D. Ind., Jan. 15, 2014).
In this pregnancy discrimination case it was the plaintiff who made the Rule 404(b) argument. She sought to exclude evidence about her performance in positions other than the one from which she was terminated, arguing that it was impermissible character evidence. Such evidence could not be used to prove that because plaintiff may have underperformed in other positions, she also underperformed in the position from which she was terminated, as to allow it would violate Rule 404(b).  If, however, plaintiff opened the door by presenting evidence of her satisfactory performance in previous positions, then defendant could rebut such evidence.

Davis v. International Paper Co., 997 F.Supp.2d 1225 (M.D. Ala. 2014).

Failure to promote case. Evidence of discrimination against other employees seeking same position, racial epithets and noose-hanging inadmissible because no evidence of decisionmaker’s involvement.

Davis v. Lakeside Motor Co. Inc., 3:10-CV-405 (N.D. Indiana, Nov. 20, 2014).

Court granted plaintiff’s motion in limine concerning prior claims for unemployment benefits because evidence would not be admissible under Rule 404(b).

Tamez v. Donahoe, 12 C 9411 N.D. Illinois, Sept. 10, 2014).

Plaintiff failed to provide sufficient information about co-worker’s EEO retaliation case to make the evidence relevant and admissible under Federal Rules of Evidence 404(b) and 403.

Other Act Evidence Held Admissible/Discoverable.

Moniz v. City of Delano, 1:13-cv-00093 (E.D. Cal., Aug. 5, 2014).

Claim based on sexual harassment retaliation. Defendant moved to exclude “me too” evidence submitted by plaintiff in opposition to its motion for summary judgment.  District court overruled objection because evidence of other employees who suffered sexual harassment by the defendant was probative of the defendant's motive and, therefore, admissible under Rule 404(b). (Citing Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1286 (11th Cir. 2008); Heyne v. Carruso, 69 F.3d 1475, 1481 (9th 1995)).

United States Equal Employment Opportunity Commission v. Suntrust Bank, 8:12-cv-1325-T-33 (M.D. Fla., May 6, 2014).

"Me too" evidence held admissible under Rule 404(b) in sexual harassment case to prove defendant's motive, intent, or plan to discriminate, to Faragher/Ellerth affirmative defense and to whether defendant’s anti-discrimination and anti-retaliation policies were effective, where plaintiff’s complaints of harassment and retaliation overlapped temporally with claims of other plaintiffs and involved same supervisor. (Citing Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008); Phillips v. Smalley Maint. Servs., Inc., 711 F.2d 1524, 1532 (11th Cir. 1983); Walters v. Cent. Fla. Invests. Inc., No. 6:01-cv-1390, 2006 U.S. Dist. LEXIS 21197, at *8 (M.D. Fla. Mar. 28, 2006)("Evidence of McGriff's harassment of other women who worked under him may be admitted to show plan, motive, opportunity, intent, and pattern. Defendants' handling of Lawver's complaint also is relevant to the effectiveness of Defendants' anti-harassment policy and the Defendants' affirmative defense raised under Faragher/Ellerth.")). Court also rejected defendant’s Rule 403 argument that evidence would result in a "mini-trial" and cause juror confusion.

Goold v. Hilton Worldwide, Inc., 1:13-cv-00438 (E.D. Cal. April 8, 2014).

Plaintiff claimed he was fired after complaining about sexual harassment suffered by a former employee. On motion to compel defendants to produce information about complaints made to or about four individuals and adverse employment actions suffered by the complainants. Court notes that there is no per se prohibition on the introduction of this type of evidence. (Citing Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008)). Admissibility of "me too" evidence depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case. Evidence of other acts or wrongs generally may be admitted to demonstrate motive under Rule 404(b). Given that the issue is whether other employees made discrimination complaints and, as a result, Defendants retaliated against them, the evidence is discoverable.

King v. CVS Caremark Corp., 2 F.Supp.3d 1252 (N.D. Ala. 2014).

Age discrimination (among other claims) case. Ruling on a motion to strike evidence submitted in opposition to defendant’s summary judgment motion, the court decides that "me too" evidence of ageist comments by decisionmaker concerning another employee were relevant to pretext and admissible under Rule 404(b). (Citing Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008)).

Aboubaker v. County of Washtenaw, 11-13001 (E.D. Mich., Feb. 27, 2014).

Plaintiff claimed discriminatory failure by current employer to interview him for a “drain inspector” position. Defendants’ moved in limine to exclude evidence pertaining to claims previously dismissed in case, to wit (1) discriminatory demotion/reclassification; and (2) unfair treatment in previous position. Court cites Evid. R. 404(b) but its application of rule is implicit. Court does state test for admissibility of Rule 404(b) evidence that is useful for lawyers practicing in the Sixth Circuit: 

Courts have recognized the use of other crimes or other bad acts permissible as evidence at trial. United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1984). A three-step inquiry as to admissibility of 404(b) evidence is used: 1) whether sufficient evidence exists that the prior act occurred; 2) whether the "other act" is admissible for a proper purpose under Rule 404(b); and, 3) determine whether the "other acts" evidence is more prejudicial than probative under Rule 403. United States v. Poulsen, 655 F.3d 492, 508 (6th Cir. 2011).
Step 1 refers to Evid. R. 104(b), the rule on conditional relevance (in a nutshell, collateral “me-too” evidence must be supported by evidence that the “me-to” event actually occurred; for more see Huddleston v. United States, 485 U.S. 681, 689-90 (1988).

With respect to evidence of the alleged discriminatory demotion/reclassification, the court decided that if defendants argued at trial that plaintiff did not meet minimum qualification standards resulting from his demotion/reclassification, then evidence regarding the reason for his downward reclassification is admissible (presumably under Evid. R. 404(b)). Likewise, evidence of unfair treatment in previous position is admissible (again, presumably under Rule 404(b)) if decisionmakers sought or reviewed information about plaintiff emanating from previous supervisors allegedly responsible for unfair treatment (including evaluations of plaintiff and other like documents in plaintiff’s personnel file). Court appears to connect Rule 404(b) to the “cat’s paw” theory of liability, although not explicitly stated.