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

Employers Romp, 8-1

FOR DEFENDANT

Davis v. James, 14-6063 (10^th Cir., Jan. 15, 2015)

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.

Cassotto v. Donahoe, 14-560 (2^nd Cir., Jan. 14, 2015)

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.”

Brainard v. City of Topeka, 14-3055 (10th Cir., Jan.13, 2015)

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.

Jenkins v. Foot Locker Inc., 14-1696 (6th Cir., Jan.15, 2015)

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.

Marshall v. Aryan Unlimited Staffing Solution/Faneuil Inc., 13-14538 (11^th Cir., Jan. 14, 2015)

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 (2^nd 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.”

Gertner v. Pace University, 14-237-cv (2nd Cir., Jan.16, 2015)

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

Green v. City of Northport, 14-11916 (11th Cir., Jan.12, 2015)

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).

FOR PLAINTIFF

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."