August/September 2006 Discrimination & Harassment News





Employee Provided Sufficient Direct Evidence of Discrimination (9/16/06) - 7th Cir.

Rosaura Paz is a Hispanic woman of Mexican descent. She began working as a cook at Wauconda Healthcare and Rehabilitation Centre in December of 2000. After her employment ceased at Wauconda, she filed suit under Title VII for national origin discrimination, pregnancy discrimination, and retaliation. The district court granted Wauconda summary judgment.

On appeal, the 7th Circuit reversed, holding that Paz provided direct evidence of national origin discrimination, pregnancy discrimination, and retaliation sufficient to avoid summary judgment on her Title VII claims without resorting to the McDonnell Douglas burden-shifting test. She provided evidence that her supervisor made discriminatory remarks toward Mexican workers, that the supervisor made negative comments toward the employee upon learning that she was pregnant, that a curious string of warnings against the employee coincided with the employee's complaints of discrimination, that Hispanic employees were given less favorable jobs, and that the supervisor repeatedly suggested that the employee get an abortion.

Paz v. Wauconda Healthcare and Rehabilitation Centre, LLC

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The 7th Circuit Court of Appeals' jurisdiction includes Illinois, Indiana and Wisconsin.

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City Could Not Constitutionally Employ Race-Based Transfer and Assignment Policy to Eliminate "Single-Race" Fire Companies (9/18/06) - 3rd Cir.

On July 1, 2002, Sharpe James, newly re-elected as Mayor of Newark, New Jersey, issued a "mandate" in his inaugural speech that, "to improve morale," all single-race fire companies in the Newark Fire Department would be eliminated. The racial composition of each of the 108 fire companies was thereafter examined, and dozens of firefighters were involuntarily transferred to different companies solely on the basis of their race. In January 2004, Mayor James announced that "we have created a rainbow at each firehouse." The firefighters sued, and lost.

On appeal, the 3rd Circuit reversed, holding that the city could not constitutionally employ a race-based transfer and assignment policy when any racial imbalance in the companies was not the result of past intentional discrimination by the city:

    It is important at the outset to note what this case is not about. This case is not about whether diverse workplaces are desirable. It is not disputed that they are. Neither is this case about a remedy for unlawful past discrimination because, again, it is not disputed that there was no unlawful discrimination in the past. And this case is not about whether the numbers of minority firefighters being hired are satisfying long-range hiring goals. Rather, this case is about whether the City of Newark may employ a race-based transfer and assignment policy when any racial imbalance in the 108 fire companies is not the result of past intentional discrimination by the City. We hold that it may not and, accordingly, will reverse the District Court's entry of judgment for the defendants.


Lomack v. Newark

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The 3rd Circuit Court of Appeals' jurisdiction includes Pennsylvania, New Jersey, Delaware and the Virgin Islands.

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Wrongly Terminated Employee Was Not Foreclosed From Pursuing Her Title VII Claims Even Though Her Employer Eventually Reinstated Her With Back Pay (9/18/06) - 7th Cir.

This case examines whether a Title VII plaintiff who is wrongly terminated should be foreclosed from pursuing her claims where her employer eventually reinstates her with back pay.

Laura Phelan brought this suit against her employer and eight co-workers and supervisors under Title VII, alleging sexual harassment, gender discrimination, race discrimination, and retaliation.

The district court granted summary judgment in favor of the defendants. Primarily because the district court erroneously found that Phelan was not subject to an adverse employment action, the 7th Circuit reversed the grant of summary judgment with regard to all but one of Phelan's Title VII claims:

    The defendants argue that Phelan failed to demonstrate adverse employment action. We disagree.

    Phelan's four-month termination, beginning on October 11, 2000, constituted an adverse employment action. That Phelan was reinstated to her position in February of 2001 does not negate the fact that her termination constituted an adverse employment action. It is undisputed that Phelan was terminated in October of 2000, and, were we to disregard her subsequent reinstatement, this termination would unquestionably constitute an adverse employment action, as a member of the class of cases in which the employee's compensation, fringe benefits, or other financial terms of employment are diminished. The only question is whether the fact that Cook County later reinstated Phelan and awarded her back pay somehow negates her right to pursue her Title VII claims. We believe that it does not, since the only purpose of the adverse employment action requirement is to provide a reasonable limiting principle for the type of conduct actionable under the statute. Consistent with Title VII's goal of deterring discrimination, we decline to endorse a rule that would allow employers to escape liability by merely reinstating the aggrieved employee months after termination, whenever it becomes clear that the employee intends to pursue her claims in court. Such a rule could create an unintended economic incentive for employers to reinstate an employee who files a discrimination suit as means to avoid Title VII penalties whenever the costs of reinstating the employee are lower than the employer's exposure in a Title VII suit. As the Supreme Court has explicitly stated, the "primary objective" of Title VII "is not to provide redress but to avoid harm."

    We find persuasive the reasoning of the Second and Sixth Circuits, which have concluded that the reinstatement of an employee after a lengthy suspension from work does not prevent the employee from pursuing Title VII claims, even where back pay was awarded. If a suspension that ends in reinstatement and reimbursement can constitute an adverse employment action, it follows that reinstatement and reimbursement do not bar a finding of adverse employment action where there was an actual termination, which is a more serious action than suspension. As our sister circuit concluded in White v. Burlington Northern & Santa Fe R. Co., 364 F.3d 789, 791 (6th Cir.2004), a rule that prevented the finding of an adverse employment action where the terminating or suspending employer later reinstated the employee would "allow an employer unilaterally to cut off the employee's claims for other damages, which have been explicitly authorized by Title VII since the Civil Rights Act of 1991, such as interest on the back pay, attorney's fees, emotional suffering, and punitive damages." Phelan's time away from work . . . lasted for four months. This was certainly enough time for Phelan to be measurably injured by the termination, both financially and emotionally, regardless of whether back pay was later awarded.


Phelan v. Cook County

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The 7th Circuit Court of Appeals' jurisdiction includes Illinois, Indiana and Wisconsin.

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Morbid Obesity Must Be Result Of Physiological Condition To Constitute "Impairment" Under ADA (9/12/06) - 6th Cir.

In August 1990, Stephen Grindle was hired by the defendant, Watkins Motor Lines, as a Driver/Dock Worker. Approximately 65% of his time was spent performing dock work including loading, unloading, and arranging freight. The job description for this position notes that the job involves climbing, kneeling, bending, stooping, balancing, reaching, and repeated heavy lifting.

At the time of his hire, Grindle approximates that he weighed about 345 pounds. During the next five years, his weight ranged from 340 to 450 pounds. Grindle knows of no physiological or psychological cause for his weight.

In November 1995, Grindle sustained an on-the-job injury. He was climbing a ladder at the loading dock and a rung broke. He started to fall and caught himself but, in doing so, he injured his knee. The day after the incident Grindle returned to work and worked fifty to sixty hours a week throughout the month of December. However, on January 22, 1996, he commenced a leave of absence for injuries sustained during the November incident. Watkins informed Grindle that they had a policy that any employee who remains on leave of absence in excess of 180 days is terminated, that in order to come back to work he must have a release from his doctor, and that he may be asked to take a physical exam.

After taking his leave, Grindle started treatment for his knee injury with Dr. Zancan. After about 6 months on leave (when his 180 days of leave were almost up), Dr. Zancan gave Grindle a return to work release. Grindle gave the release to Watkins, but Watkins would not accept the return to work release from Dr. Zancan as valid because Dr. Zancan had not yet reviewed Grindle's job demands prior to signing it. Watkins then sent Dr. Zancan a list of Grindle's job demands and a return to work form. Dr. Zancan never responded to the list of demands sent by Watkins, and so Watkins did not accept Dr. Zankin's original release letter.

On June 26, 1996, Watkins ordered Grindle to see the industrial clinic doctor, Dr. Walter Lawrence. Dr. Lawrence found that Grindle had a limited range of motion and that he could duck and squat but he was short of breath after a few steps. Dr. Lawrence also noted that "on physical examination, the most notable item is that the patient weighs 405 lbs." Dr. Lawrence concluded that, even though Grindle met Department of Transportation standards for truck drivers, he could not safely perform the requirements of his job.

Because of Dr. Lawrence's determination that Grindle could not safely perform his job, and because Watkins had not yet received the requested return to work job form from Dr. Zancan after they sent him a list of job demands, Grindle was placed on safety hold. Since he was on safety hold Grindle was eventually terminated as he was unable to return to work in 180 days.

Grindle believed he was discharged because of his weight and registered a complaint with the EEOC. The EEOC brought this employment discrimination action on behalf of Grindle, alleging that Watkins discharged Grindle because of his morbid obesity in violation of the Americans with Disabilities Act ("ADA"). The district court granted summary judgment for Watkins, finding that non-physiologically caused obesity is not an "impairment" under the ADA.

On appeal, the 6th Circuit affirmed, holding that, to constitute an "impairment" under the ADA, an employee's obesity, even morbid obesity, must be the result of a physiological condition. The Court of Appeals declined to extend ADA protection to all "abnormal" physical characteristics. One judge wrote a concurring opinion in order to emphasize that morbid obesity, as opposed to the general condition of being overweight, may have a physiological cause.

E.E.O.C. v. Watkins Motor Lines, Inc.

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The 6th Circuit Court of Appeals' jurisdiction includes Michigan, Ohio, Kentucky and Tennessee.

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Sex With Employment Counselor Was Not Quid Pro Quo Sexual Harassment (8/24/06) - US Dist Ct., N.D.Ohio

A female factory worker was not subjected to quid pro quo sexual harassment, under Title VII and corresponding Ohio statute, when she had sex with a counselor assisting her on job related problems, despite a claim that she submitted to sex in hopes that the problems would be favorably resolved. There was evidence the sex was consensual, and in any event the counselor was not in a position to help her attain her employment objectives.

Jaquez v. Herbert

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Title VII Plaintiff Who Assaulted District Manager Did Not Meet Employer's "Legitimate Expectations" (9/12/06) - 7th Cir.

On November 12, 2002, Steven L. Anders, a waste hauler for Waste Management of Franklin, Wisconsin, attempted to assault his District Manager, William Snow, in front of numerous co-workers. It is no surprise that he was fired as a result of this action. Nevertheless, Anders, who is African-American, filed suit claiming that Waste Management fired him on the basis of race, in violation of Title VII. The district court granted summary judgment to the defendants. On appeal, the 7th Circuit affirmed, finding that Anders had failed to establish two elements of his prima facie case: 1) that he was meeting his employer's legitimate expectations; and (2) that his employer treated similarly situated employees not in the protected class more favorably.

    Given the scope of the record before us, Anders fails to establish either that he was meeting his employer's legitimate expectations, or that he was treated differently from similarly situated employees. On the former point, the inquiry must focus on Anders's performance at the time of his dismissal. It cannot be disputed that his behavior on November 12 failed to meet Waste Management's "legitimate expectations" as established by its Code of Conduct and Workplace Violence policy. That morning, Anders walked off the job site at Franklin, drove nearly 30 miles to confront his managers, and then attempted to attack Snow in front of numerous employees.

    When considering the latter issue, his failure to establish that he was treated less favorably than similarly situated employees of a different race, we look to many different factors. Specifically, Anders must show that he is similarly situated in regard to performance, qualifications, and conduct. This normally entails a showing that the comparable employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them. While Anders claims on appeal that there were four white, comparable Waste Management employees who engaged in analogous acts of aggression, the record is devoid of any information as to the specifics of their actions, their supervisor, or any mitigating circumstances.


Anders v. Waste Management of WI

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The 7th Circuit Court of Appeals' jurisdiction includes Illinois, Indiana and Wisconsin.

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In Title VII Failure-to-Hire Case Employee Failed to Show That Employer's Reasons for Not Hiring Him Were Pretext (9/7/06) - 8th Cir.

A Black Somali employee who held a temporary position failed to establish that the employer's proffered nondiscriminatory reasons for not hiring the employee for a permanent position were a pretext for either race or national origin discrimination. The employer articulated that another candidate was better for the position, and that the employee had a poor performance history and was not a team player. Also, the employee's own witnesses admitted that they were unaware of any disparate treatment based on race or national origin. Thus, the employee failed to establish a Title VII failure-to-hire claim.

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Employee Failed to Show That She is "Disabled" Under ADA (9/8/06) - 1st Cir.

Nellie S. Francis, a teacher, brought suit against her former employer,
The Providence School Board, claiming violations of the Americans With Disabilities Act ("ADA"). The essence of her complaint was the School Board's alleged failure to make reasonable accommodations for her disabilities. The district court granted summary judgment for the Board. On appeal, the 1st Circuit affirmed, finding that Francis offered no evidence showing that her impairment substantially or materially limited an activity of major importance in her own daily life and, therefore, failed to show that she is "disabled" within the meaning of the ADA:

    In order to be entitled to a reasonable accommodation, as a threshold matter Francis must show that she is "disabled," that is, that she has a physical or mental impairment that substantially limits a major life activity. Toyota Motor Mfg., Ky., Inc. v. Williams. This she has not done. It is not enough merely to submit a medical diagnosis of an impairment; Francis must show that a major life activity of central importance to her daily life is substantially limited by her impairment, and she must show that the impairment's impact is permanent or long term. The record is silent on each of these fundamental questions.

    Francis claims that her cervical spine and neck injuries interfere with bending and stooping, sitting or standing for prolonged periods of time, and lifting more than 10 lbs. While we may assume the latter activities may, in some circumstances and upon a proper showing, relate to a major life activity,(lifting), in order to survive summary judgment, it is not enough simply to assert the limitation; a plaintiff must proffer evidence from which a reasonable inference can be drawn that a major life activity is substantially or materially limited. In addition, "the evidence needed to establish the limiting qualities of a particular impairment must always be unique to that impairment and to the individual involved. Francis offered no evidence showing that her impairment substantially or materially limits an activity of major importance in her own daily life. Cf. Toyota Motor (respondent whose medical condition required her to avoid sweeping, quit dancing, occasionally seek help dressing, reduce how often she plays with her children, gardens, and drives long distances, did not meet her burden of showing she was disabled; she could still brush her teeth, wash her face, bathe, tend to her flower garden, fix breakfast, do laundry, and pick up around the house).


Francis v. Providence School Bd

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The 1st Circuit Court of Appeals' jurisdiction includes Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.

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$940,000 Settlement To Be Shared Among Class of African Americans and Women Denied Hire (8/25/06) - EEOC

CLEVELAND - The U.S. Equal Employment Opportunity Commission (EEOC) announced Friday that it had resolved its lawsuit charging that S & Z Tool & Die Co. discriminated against African American and female applicants in hiring due to their race and sex.

The lawsuit (Case No. 1:03CV2023) was filed in September 2003 under Title VII of the 1964 Civil Rights Act and resolved by consent decree in the U.S. District Court for the Northern District of Ohio Eastern Division. The EEOC alleged that S & Z Tool & Die Company, a Cleveland-based metal manufacturing firm founded in 1943, engaged in a pattern and practice of refusing to hire female applicants for employment because of their sex, and black applicants because of their race. Molly Baron-Prodan and a class of other black and female applicants were denied hire into non-clerical entry-level positions such as laborer, or semi-skilled jobs such as machine operator.

The settlement provides $850,000 as monetary remedy to an estimated class of at least 20 women and black applicants who sought employment since 1999. Additionally, Baron-Prodan will receive an offer of employment and $90,000, which includes compensatory damages. Other provisions include annual EEO training to all supervisory and management employees and human resource employees, and the appointment of an EEO Coordinator.

EEOC Regional Attorney Jacqueline McNair said, "This settlement will ensure that African Americans and women will have equal opportunity to compete in the workplace based upon their knowledge, skills, and abilities on a level playing field. We are also pleased that the settlement provides for extensive EEO training for management and human resource staff."

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District Court Increases Damages Award Against Employer In Civil Rights Action By Workers Recruited From India (8/22/06) - US Dist Ct., N.D.Okla

An Oklahoma district court amended its prior judgment awarding damages to approximately 50 men who had been recruited in India and brought to the United States by an Oklahoma employer, on claims under the Fair Labor Standards Act (FLSA), Title VII, and § 1981, and their state claims of deceit, false imprisonment, and intentional infliction of emotional distress. The court awarded additional damages for emotional distress of $1,000 each, bringing the total award to $1,293,480.53. The court noted the employer rationed food, denied access to medical attention, and required some workers to perform the dirtiest and lowest-level jobs not being performed by comparably qualified non-Indian co-workers.

Chellen v. John Pickle Co., Inc.

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Couple's Public Demonstrations of Affection Did Not Support Third Party's Workplace Sexual Harassment Claim (7/26/06) - US Dist Ct., D.Mass

In this case, the U.S. District Court held that a male employee was not subject to sexual harassment, in violation of Title VII and the Massachusetts antidiscrimination statute, when the employee's male supervisor and female subordinate publicly displayed affection for each other, in the presence of the employee. The court could find no decision under Title VII or Massachusetts law which would extend hostile work environment protection to an employee, toward whom the conduct in question was not directed, and who simply witnessed such amorous contact between co-workers.

Bourbeau v. City of Chicopee

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EEOC Settles Sex And Race Suit - $940,000 Settlement To Be Shared Among Class of African Americans and Women Denied Hire

CLEVELAND - The U.S. Equal Employment Opportunity Commission (EEOC) announced Friday that it had resolved its lawsuit charging that S & Z Tool & Die Co. discriminated against African American and female applicants in hiring due to their race and sex.

The lawsuit (Case No. 1:03CV2023) was filed in September 2003 under Title VII of the 1964 Civil Rights Act and resolved by consent decree in the U.S. District Court for the Northern District of Ohio Eastern Division. The EEOC alleged that S & Z Tool & Die Company, a Cleveland-based metal manufacturing firm founded in 1943, engaged in a pattern and practice of refusing to hire female applicants for employment because of their sex, and black applicants because of their race. Molly Baron-Prodan and a class of other black and female applicants were denied hire into non-clerical entry-level positions such as laborer, or semi-skilled jobs such as machine operator.

The settlement provides $850,000 as monetary remedy to an estimated class of at least 20 women and black applicants who sought employment since 1999. Additionally, Baron-Prodan will receive an offer of employment and $90,000, which includes compensatory damages. Other provisions include annual EEO training to all supervisory and management employees and human resource employees, and the appointment of an EEO Coordinator.

EEOC Regional Attorney Jacqueline McNair said, "This settlement will ensure that African Americans and women will have equal opportunity to compete in the workplace based upon their knowledge, skills, and abilities on a level playing field. We are also pleased that the settlement provides for extensive EEO training for management and human resource staff."

The EEOC is responsible for enforcing the federal laws prohibiting employment discrimination based on race, color, religion, sex, national origin, age, disability and retaliation. Further information about the EEOC is available on its web site at www.eeoc.gov.

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Release Requiring Employee to Give Up Claims in Exchange for Severance Benefits Violated Title VII (8/8/2006) - US Dist Ct., D.MD

Denise Isaac had been an employee of COMSAT Corporation for over twenty years when she was laid off as a result of COMSAT's merger into a Lockheed Martin subsidiary, Lockheed Martin Global Telecommunications. On October 16, 2000, Lockheed sent Ms. Isaac a letter informing her that her position would be eliminated effective October 30, 2000. The letter also informed Isaac that she would receive severance benefits under the COMSAT Corporation Salary Continuation Plan, but only "in exchange for" signing a Release of Claims form that was attached to the letter.

The release provided, in relevant part:
Claims not Released. By this agreement, I am not releasing claims for benefits I may have under the Corporation's other benefit plans (such as the pension plan), any rights to benefits under applicable workers' compensation statutes or government-provided unemployment benefits, or any rights to enforce this Release.
Claims Released. Subject only to the exclusions noted in the previous paragraph, I agree to waive and fully release any and all claims of any nature whatsoever (known and unknown), promises, causes of action or similar rights of any type ("Claims") that I may now have or have had with respect to any of the Released Parties listed below. These Claims released include, but are not limited to, claims that in any way relate to my wages, bonuses, commissions, unused sick pay; any claims to severance or other benefits; any claims to expenses, attorneys' fees or other indemnities; or claims for other personal remedies or damages sought in any legal proceeding or charge filed with any court, federal, state, or local agency either by me or by a person claiming to act on my behalf or in my interest.
.... I specifically, but without limitation, agree to release all of the Released Parties under the following:
Antidiscrimination laws, such as Title VII of the Civil Rights Act of 1964, ... the Age Discrimination in Employment Act, ... or any other local, state, or federal statutes prohibiting discrimination....

The release further provided that "the parties agree that this Release prohibits my ability to pursue any Claims or charges against the Released Parties seeking monetary relief or other remedies for myself and/or as a representative on behalf of others. This agreement does not affect my ability to cooperate with any future ethics, legal or other investigations, whether conducted by the Corporation or any governmental agencies."

Isaac declined to sign the release. Instead, on October 27, 2000, she filed a charge with the EEOC, alleging that her termination was discriminatory on the basis of race, gender, and age.

On November 2, 2000, through counsel, she sent Lockheed a letter asserting that notwithstanding the charge, she had the right to receive severance benefits, and that the release was retaliatory as written. Lockheed responded by letter on November 20, 2000, stating that it "would not amend the Release of Claims form in any way."

The response also stated that:
    If Ms. Isaac decides to sign the release as is and receive severance benefits, she will have to dismiss her EEOC charge against the company. We will give her until the close of business on Friday, December 1, 2000, to consider the release. If she does not sign by then, she will be terminated from employment and cease to be paid as of that date, and will forfeit any opportunity to receive severance benefits from the company.


Isaac never signed the release. She was terminated effective December 1, 2000, and never received any severance benefits. The EEOC filed this action on her behalf on January 31, 2005.

The district court granted summary judgment for the EEOC, holding that a release requiring an employee to give up "claims of any nature whatsoever (known and unknown), promises, causes of action or similar rights of any time," as well as the ability to pursue "charges" in exchange for severance benefits, was facially retaliatory in violation of Title VII. Contrary to the employer's argument, the release included EEOC charges within its scope. The question of whether a release could be retaliatory on its face was one of first impression in the Fourth Circuit, the District Court said:

    The charge that Isaac filed with the EEOC arose under several different antidiscrimination statutes, but all of them have similar antiretaliation provisions. For instance, the Age Discrimination in Employment Act provides that:


    it shall be unlawful for an employer to discriminate against any of his employees or applicants for employment ... because such individual ... has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.


Similarly, Title VII provides that:

    it shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.


    These provisions forbid not the "substantive" discrimination on the basis of age, race, gender, etc., that are the subject of the civil rights laws generally, but "discrimination against employees who pursue their federal rights" under those laws-in other words, retaliation against employees who, for example, file an EEOC charge.


    The EEOC alleges that Lockheed's actions unlawfully interfered with Isaac's protected activity in two respects. First, it argues that Lockheed's conditioning of Isaac's severance benefits on the withdrawal of her EEOC charge-whether or not she was otherwise entitled to those benefits before she filed the charge-constituted retaliation. Second, it argues that the release itself prohibits the signor from filing an EEOC charge, and that it is thus facially retaliatory. The EEOC is correct in both respects, so each of these theories provides an independent ground upon which it must prevail.


U.S. E.E.O.C. v. Lockheed Martin Corp.

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Coworker's Alleged Conduct Did Not Establish Title VII Hostile Work Environment Claim (7/27/06) - US Dist Ct., M.D. LA

In this case, a female employee brought a Title VII action against her employer, alleging a hostile work environment claim based on sexual harassment.

The District Court granted summary judgment to the employer, finding that the alleged ongoing daily staring at the plaintiff by a male coworker, the alleged unnecessary appearances by the male coworker in her work area, one incident where the coworker allegedly touched her arm, and another incident in which the coworker allegedly pointed a stick at her did not amount to unwelcome "sexual harassment," and the conduct did not affect a term, condition, or privilege of employment, as required to establish the female employee's Title VII hostile work environment claim based on sexual harassment. Even combined, such conduct was not so severe and pervasive that a reasonable person would have been offended.

Wilkinson v. Potter

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Retaliation Case Plaintiff Could Not Reasonably Believe Work Environment Was Hostile (8/14/06) - 4th Cir.

When the news broke in October 2002 that police in Montgomery County, Maryland, had captured two black men suspected of being the snipers who had randomly shot 13 individuals, killing 10, in separate incidents over a period of weeks in Maryland, Virginia, and the District of Columbia, Jay Farjah, an IBM employee watching the news on television in one of IBM's Montgomery County offices uttered a racially derogatory exclamation. A fellow employee, Robert Jordan, who is black, was in the room at the time and heard the exclamation. Jordan was offended and discussed the incident with two other co-workers, who told him that the employee had made similar comments before. Jordan then reported the incident to management. A month later Jordan was fired, purportedly because he was "disruptive," his position "had come to an end," and management personnel "don't like you and you don't like them."

Jordan sued IBM for retaliation in violation of Title VII of the Civil Rights Act of 1964. The district court granted the defendants' motion to dismiss. The court held that IBM could not be liable for retaliation because "Plaintiff has failed to allege that he engaged in a statutorily protected activity." As the court explained, a plaintiff bringing a claim under the opposition clause of Title VII must at a minimum have held a reasonable good faith belief at the time he opposed an employment practice that the practice was violative of Title VII. The court concluded that "Farjah's comment, which Jordan does not allege was directed at him, simply is not such a violation."

On appeal, the 4th Circuit affirmed, holding that: (1) Jordan was not complaining of an actual hostile work environment made unlawful by Title VII when he complained to supervisors about his co-worker's isolated, racist exclamation; and (2) Jordan could not have reasonably believed that he was complaining of a hostile work environment made unlawful by Title VII.

Jordan v. Alternative Resources Corp.

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The 4th Circuit Court of Appeals' jurisdiction includes Maryland, North Carolina, South Carolina, Virginia and West Virginia.

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Proposed Changes to EEOC Age Discrimination Regulations Reflect Supreme Court "Reverse Discrimination" Decision (8/17/06) - EBIA Weekly

In 2004, the U.S. Supreme Court ruled that the federal Age Discrimination in Employment Act ("ADEA"), which bars employment discrimination against individuals who are 40 or older, does not prohibit so-called reverse discrimination. The EEOC has now issued proposed changes to its regulations, to reflect the Supreme Court's interpretation of the law.

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Stillwater School District To Pay $1.12 Million For Age Bias Against Class Of Retired Employees (8/21/06) - EEOC

MINNEAPOLIS - Independent School District No. 834 of Stillwater, Minnesota (Stillwater School District), will pay more than $1 million to former school district employees under a consent judgment resolving an age bias lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

EEOC has brought a total of 12 age discrimination lawsuits against Minnesota school districts because of their discriminatory early retirement plans. All of the lawsuits have now settled for total monetary relief of over $2.6 million for more than 200 retired teachers and other employees. In the case against the Stillwater School District, the EEOC filed suit on December 15, 2005, (EEOC v. Independent School District No. 834 of Stillwater, Minnesota, Civil No. 05-2908) on behalf of a class of more than 50 former school district employees whose early retirement incentive payments were reduced because of their age. EEOC charged that the Stillwater School District reduced the amount of the early retirement incentive payment for each year as the employee grew older. The EEOC contended that the Stillwater School District violated the Age Discrimination in Employment Act by paying the retiring employees less as they aged.

"Even though courts have recognized that such plans violate the laws against age discrimination, some school districts around the country continue to pay younger teachers more than older teachers when they elect early retirement," said EEOC Chicago District Director John Rowe. "We hope that school districts pay attention to the EEOC's efforts to eradicate this practice in Minnesota and take steps to reform their policies now."

The five-year consent judgment, entered August 18, 2006, by U.S. District Judge Richard H. Kyle of the District of Minnesota in St. Paul, provides $1,120,430 in monetary relief for 57 former employees and enjoins the Stillwater School District from implementing or administering a retirement incentive plan that reduces the benefits based upon the age of the retiree. It further requires that the Stillwater School District report all revisions to its early retirement incentive plans to the EEOC and to post a notice regarding the settlement.

John Hendrickson, the EEOC's Chicago regional attorney, said, "There are lawful ways to encourage employees to elect early retirement. Then there are unlawful ways, such as those plans that punish employees for growing older. As long as employers don't recognize the difference, the EEOC will be watching. "

Laurie Vasichek, the EEOC trial attorney heading up the government litigation effort, added, "The teachers and school employees were punished because they wanted to keep working. It made no sense. We appreciate that the Stillwater School District looked at its practices and resolved this suit promptly."

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Plaintiff's Request for Accommodation Did Not Relate to Her Disability (8/11/06) - 7th Cir.

Malinee Yindee was hired in 2000 as a "Programmer Analyst" to work with a database system that CCH used in its business. She was fired three years later. A considerable part of the time in between had been spent on leave (whether paid disability leave or unpaid leave under the Family and Medical Leave Act) because of cancer and other ailments. Yindee's endometrial carcinoma led to a hysterectomy; she also suffers from vertigo and related problems such as frequent headaches. She attributes her discharge to these conditions (which she says CCH failed to accommodate) and to retaliation after she complained. CCH contends that it tried to accommodate Yindee and that the discharge stemmed from a decline in her performance. In this suit under the Americans with Disabilities Act, the district judge granted summary judgment to CCH. On appeal, the 7th Circuit affirmed, but on different grounds, holding that: (1) no evidence in the record would allow a reasonable jury to find that Yindee's vertigo was an aspect of her genuine disability (infertility); and (2) Yindee produced no evidence that her employer's nondiscriminatory reason for her termination was pretexual:

    The district judge concluded that Yindee is not disabled-she no longer has cancer, and her vertigo, which for about a year prevented her from driving, is not a disability under the approach of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. That left the retaliation claim, which the judge rejected because the evidence does "not lead inexorably to a conclusion that CCH retaliated against Yindee once she began filing grievances and EEOC charges." This analysis is faulty in two respects. The price of curing Yindee's cancer and saving her life was sterility, which assuredly is a "disability" under the ADA. And Yindee need not show that the evidence "inexorably" supports her position. "Inexorability" is not required even in a criminal prosecution. It is enough to show (when responding to a motion for summary judgment) that a reasonable jury could find by a preponderance of the evidence in favor of the party opposing the motion. Neither of these mistakes matters, however. Appellate review of a decision granting summary judgment is plenary, so we can (and will) make an independent decision under the proper standards.

    Yindee's infertility is a disability, but nothing in the record implies that CCH held it against her. Her hysterectomy was performed in 2000, and the events of which she complains did not begin until 2002. Yindee did not ask for time off, or any other accommodation, so that she could adopt children.

    When Yindee first sought an accommodation in 2002, it was on account of difficulty in reaching the office after her vertigo worsened and her physician told her to stop driving. Yindee proposed to work at home; CCH agreed to a telecommuting arrangement. Yindee stayed home for three weeks and split time between home and office for another ten weeks, using taxis or public transportation to commute. At the end of this three-month experiment, however, CCH concluded that Yindee was not being productive and insisted that she return to its offices full time.

    The district judge concluded that vertigo is not a disability because "driving" is not a major life activity and balance problems did not themselves prevent Yindee from doing her job, or for that matter most other jobs. Yindee does not disagree with this assessment but instead maintains that the vertigo is an aspect of a single disability caused by cancer. Yet her own physician calls the vertigo idiopathic-that is, a symptom without a known cause. Because no evidence in the record would allow a reasonable jury to find that Yindee's vertigo is an aspect of her genuine disability (infertility), she does not have a sound claim of disability discrimination under the ADA. (This means that we need not decide whether a medical condition or symptom associated with a disability must be accommodated independently, when the associated condition is not serious enough to be a disability on its own.)

    That leaves the retaliation theory. The first came on September 17, 2002, after CCH had ended the telecommuting arrangement and informed Yindee that her performance was substandard. The second came on December 12, 2002, after Yindee had been told that she was at risk of discharge unless she successfully completed a performance improvement plan. The third, on January 23, 2003, asserted that she had been fired six days earlier in retaliation for the charge made in December. She never argued (at least not before the EEOC) that the discharge was a response to September's charge-but, even if she had, there would be problems in making a prima facie case, for by September Yindee's job already was in jeopardy. We do not have a situation in which a worker with an unblemished record complains about discrimination and suddenly finds herself in hot water.

    Let us suppose, however, that a prima facie case of retaliation has been made out, on the theory that CCH may have been retaliating for Yindee's request to telecommute as an accommodation of her vertigo, or perhaps an internal grievance that Yindee filed in August 2002 (though that grievance did not allege disability discrimination, so it is hard to see how it could be the foundation of a retaliation claim under the ADA). When telecommuting began, her paper record was stronger (though not as good as it had been in 2000). We bypass the question whether Yindee has shown that some comparable employee received better treatment and turn to the employer's explanation-for, once a non-retaliatory explanation has been articulated, the plaintiff must show that this explanation is a pretext for discrimination. To do this the employee must establish that the explanation is a lie, which permits a jury to infer that the tale has been concocted to conceal an unlawful truth. It is not enough to demonstrate that the employer was mistaken, inconsiderate, short-fused, or otherwise benighted; none of those possibilities violates federal law. Poor personnel management receives its comeuppance in the market rather than the courts.

    CCH's explanation is that Yindee not only reduced the quantity of output in 2002 but also fell behind on quality. Deadlines for her projects passed and other employees had to step in. Supervisors also concluded that Yindee had not kept up with the latest version of the database package, and that when she failed to understand how the software worked she called PeopleSoft to complain about bugs and missing features rather than learning how the problem could be solved.

    One feature of the performance improvement plan required Yindee to master the software package so that she could solve problems correctly rather than call tech support at PeopleSoft. This was the immediate cause of her discharge, according to CCH. On January 15, 2003, Yindee sent an email to Tennant asking whether she should call PeopleSoft about a problem that she perceived in the software and its documentation. Tennant concluded that Yindee had misunderstood either the software or the manual, had failed to demonstrate problem-solving skills essential to her job, and recommended that she be dismissed, which CCH soon did.

    Yindee has not even attempted to demonstrate that Tennant is lying about his assessment of her work and the reason for his recommendation. She does not, for example, contend that the software or its manual was deficient in the way her email of January 15 claimed (from which, if true, it might be inferred that Tennant's contrary assertion had been trumped up). Nor does she contend that she completed projects on time (or at all) during the period between the start of telecommuting in April 2002 and her discharge in January 2003. Her arguments are entirely procedural. She complains, for example, that CCH fired her before the prescribed end of the performance plan, as if federal law gave employees a right to serve out some minimum time under probation. She also contends that because her home computer was logged onto CCH's network for an average of six hours a day while she was telecommuting, CCH should have been satisfied. Yet that's like saying that as long as an employee shows up at the office, the employer can't complain when she puts her feet up on the desk and does sudoku puzzles all day. Yindee was being paid to do programming, and if she didn't accomplish assigned projects it made no difference how many hours per day her computer was a node on the firm's network. The poor performance continued after the telecommuting ended-or so CCH maintains, and Yindee, who bears the burdens of production and persuasion after the employer articulates a nondiscriminatory explanation, has offered nothing in response.

    CCH's explanation of its decision thus stands uncontradicted. Tennant may have acted precipitately. He may have been wrong in denigrating Yindee's skills or productivity. But on this record a reasonable jury could not find that he lied to the court about his reasons. Yindee has not created a material dispute about the pretext question, so CCH is entitled to prevail as a matter of law.


Yindee v. CCH

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The 7th Circuit Court of Appeals' jurisdiction includes Illinois, Indiana and Wisconsin.

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Ordering Linguist Back to United States from Afghanistan was Adverse Action Despite Offer of Another Job at Same Pay (7/25/06) -
US Dist Ct., D.Me

In this case, Worldwide Language Resources, Inc., a military contractor, ordered Tanja Gavrilovic, a linguist, back to the United States from Afghanistan, and revoked her security clearance. Gavrilovic brought suit against Worldwide, alleging sexual harassment and retaliation claims under Title VII. Following a bench trial, the District Court held that:
  • Worldwide failed to exercise reasonable care to prevent and correct promptly sexual harassment of Gavrilovic by her supervisor in Afghanistan, and Worldwide thus was liable to Gavrilovic under Title VII; Worldwide offered no evidence of any sexual harassment policies for its overseas employees, it failed to give specifics as to how military regulations would prevent sexual harassment, and it provided no training on sexual harassment to its overseas workers;
  • To succeed on a Title VII retaliation claim, an employee must show that the employer took actions that would have been materially adverse to a reasonable employee or job applicant, that is, harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination;
  • Worldwide's actions of ordering Gavrilovic back to the United States and revoking her security clearance constituted adverse employment actions for purposes of her Title VII retaliation claim, even though she was offered reassignment to a different location at the same pay and her security clearance was easily restorable on the new posting, inasmuch as the disruption might have dissuaded a reasonable worker from making a charge of discrimination;
  • Title VII retaliation claims are subject to the Price Waterhouse rule that an employer can avoid liability even if it had an illegitimate motive such as retaliation, so long as it can prove that it would have taken the same adverse action even if it did not take the illegal factor into account; and
  • Worldwide would have removed Gavrilovic from Afghanistan absent any motive of retaliating against her for complaining about sexual harassment, and Worldwide thus was not liable for retaliation under Title VII; Worldwide had been receiving complaints that Gavrilovic was unable to get along with other translators and had anti-Muslim bias.


Gavrilovic v. Worldwide Language Resources, Inc.

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Court Sets Aside Award of Punitive Damages in Racial Discrimination Case (8/4/06) - 8th Cir.

This appeal arises from a racial discrimination complaint filed by Stephen Jeffery against Kansas City Southern Railway Company under Title VII of the Civil Rights Act. The jury found for Jeffery and awarded $128,000 in actual damages and $900,000 in punitive damages. The district court set aside the punitive damages award. On appeal, the 8th Circuit affirmed on the grounds that Southern conducted an investigation of the alleged discrimination, terminated the employee who had been responsible for the bulk of the wrongful conduct, and had a Title VII compliance policy in place:

    In Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999), the United States Supreme Court described limitations on employers' vicarious liability for punitive damages in Title VII cases:

      "Recognizing Title VII as an effort to promote prevention as well as remediation, and observing the very principles underlying the Restatements' strict limits on vicarious liability for punitive damages, we agree that, in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's good faith efforts to comply with Title VII."


    Some of the factors to be considered in an award of punitive damages are the outrageousness of the defendant's conduct, the defendant's financial status, the injury suffered, the relationship between the parties, and the aggravating and mitigating factors. Punitive damages are only awarded when the defendant operated with reckless indifference or malice in regard to the conduct alleged by the plaintiff. Further, punitive damages should only be awarded to a plaintiff who directly suffered the specific conduct that underlies the claim for punitive damages.

    In this case, Southern conducted an investigation, terminated the employee who had been responsible for the bulk of the wrongful conduct, and had a Title VII compliance policy in place. Further, the only plaintiff appealing the judgment of the district court is Jeffery. However, Jeffery is not the plaintiff who allegedly suffered much of the wrongful conduct that might justify punitive damages.


Carter v. Kansas City Southern Railway

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The 8th Circuit Court of Appeals' jurisdiction includes North Dakota, South
Dakota, Minnesota, Nebraska, Iowa, Missouri and Arkansas.

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Employee Lacked Title VII and Puerto Rico Law Claim For Discrimination on Basis of Being Regarded as Homosexual (7/14/06) - US Dist Ct., D.Puerto Rico

Víctor Omar Portugués brought this action under Title VII, and under Puerto Rico Law. Portugués alleged that his former employer, B. Hernández & Hnos., Inc. ("BFH"), regarded him as being homosexual and discriminated against him on that basis. BFH moved to dismiss Portugués's claim for discrimination on the basis of being regarded as homosexual, on the ground that such a claim does not exist under federal or Puerto Rico law. Portugués conceded that the applicable statutes barred discrimination only on the basis of age, race, color, sex, social and national origin, social condition, political affiliation, or political and religious ideology, and other state laws prohibiting employment discrimination on the basis of sexual orientation did not create new causes of action. Nevertheless, Portugués argued that the District Court should exercise its authority to create a new cause of action under Puerto Rican common law. The Court declined to create a cause of action for employment discrimination on the basis of being regarded as homosexual, and therefore granted the defendant's motion to dismiss.

Portugues Santa v. B. Fernandez & Hnos., Inc.

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New Publication Addresses Employment Rights of People With Hearing Loss (7/26/06) - EEOC

WASHINGTON - Cari M. Dominguez, Chair of the U.S. Equal Employment Opportunity Commission (EEOC), today announced the issuance of a new question-and-answer (Q&A) fact sheet on the application of the Americans with Disabilities Act (ADA) to job applicants and employees who are deaf or who have hearing impairments. The new publication, the sixth in a series of Q&A documents about specific disabilities in the workplace, is available online at www.eeoc.gov/facts/deafness.html.

"One goal of this fact sheet is to counter the myth that individuals with some level of hearing loss are generally less competent, less productive, or would require more attention and supervision than their peers who do not have hearing loss," said Chair Dominguez, who announced the issuance of the new document at a town hall meeting sponsored by the National Council on Disability in observance of the 16th anniversary of the ADA.

She added: "As our nation observes the anniversary of the landmark Americans with Disabilities Act, we should be mindful that disability does not mean inability, and that every individual deserves the freedom to compete on a fair and level playing field. People with disabilities represent a vast pool of untapped talent for employers."

The new Q&A publication includes many real-life examples that illustrate the kinds of jobs that people with hearing loss successfully perform and the wide range of accommodations available. Topics addressed in the document include:
  • When a hearing loss is a disability under the ADA;
  • When an employer may ask an applicant or employee about a hearing impairment and what it should do if an applicant voluntarily discloses the impairment;
  • What type of reasonable accommodation an applicant or employee with a hearing disability may need; and
  • What an employer should do if it has safety concerns about an applicant or employee with a hearing impairment.
According to published reports, between 2000 and 2004, estimates of the number of people in the United States with a self-described "hearing difficulty" ranged from 28.6 million to 31.5 million. A "hearing difficulty" can refer to the effects of many different hearing impairments of varying degrees. The number of individuals with hearing difficulty is expected to rise rapidly by the year 2010 when the baby-boomer generation reaches age 65. As compared to other age groups, the percentage of individuals with hearing difficulty is greatest among those individuals age 65 and above.

EEOC's latest ADA publication helps to advance the goals of the New Freedom Initiative, which seeks to promote greater access to technology, education, employment opportunities, and community life for people with disabilities. An important part of the New Freedom Initiative strategy for increasing employment opportunities involves providing employers with technical assistance on the ADA.

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Gender Discrimination and Harassment Claim Not Covered Under Sex Stereotyping Theory (7/19/06) - 6th Cir.

Christopher Vickers brought a Title VII suit alleging gender discrimination and gender-based harassment against his employer, Fairfield Medical Center in Lancaster, Ohio; two co-workers, Kory Dixon and John Mueller; and Steve Anderson, the police chief of FMC and Vickers's supervisor.

Vickers' complaint included a virtually day-by-day account of Vickers' allegations of harassment. According to the complaint, Vickers befriended a male homosexual doctor at FMC and assisted him in an investigation regarding sexual misconduct that had allegedly occurred against the doctor. Once his co-workers found out about the friendship, Vickers contends that Dixon and Mueller "began making sexually based slurs and discriminating remarks and comments about Vickers, alleging that Vickers was 'gay' or homosexual, and questioning his masculinity." Vickers asserts that following a vacation in April 2002 to Florida with a male friend, Dixon's and Mueller's harassing comments and behavior increased. Vickers asserts that Anderson witnessed the harassing behavior but took no action to stop it and frequently joined in the harassment.

The district court dismissed Vickers' suit on the ground that Title VII does not protect individuals from discrimination based on sexual orientation and that Supreme Court and Sixth Circuit case law do not recognize Vickers' claims of harassment based on being perceived as homosexual as violations of Title VII. The court found that Vickers' claim could not fit within the sex stereotyping theory of liability under Price Waterhouse v. Hopkins. The court noted that Vickers had not alleged that the harassers were motivated by sexual desire for Vickers or by general hostility for men in the workplace, nor was any information presented regarding how females were treated in comparison at FMC. Although the court expressed sympathy for Vickers' situation, it concluded that Vickers pled no harassment or discrimination claim under Title VII. On appeal, the 6th Circuit affirmed.

Vickers v. Fairfield Medical Center

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The 6th Circuit Court of Appeals' jurisdiction includes Michigan, Ohio, Kentucky and Tennessee.

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