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.