Outten & Golden: Empowering Employees in the Workplace

Archive for March, 2010

Could This Be News? Employee Fired Because She Was Too Old And Too Expensive Has Right To Age Discrimination Trial

Wednesday, March 17th, 2010

Direct Evidence Of Age Discrimination Gets Plaintiff Jury Trial: Court Wrongfully Applied Mixed Motive Standard To Bounce The Case

It’s hard to believe that this age discrimination victim got thrown out of court and had to go to the Eleventh Circuit Court of Appeals for a reversal but here’s what happened in the recently decided case of Mora v. Jackson Memorial Hospital.

Facts Of The Case

Sixty-two year old Josephine Mora worked for Jackson Memorial Hospital (“Hospital”) as a fundraiser. She initially worked for someone named Chea who recommended to the Hospital’s chief executive, Rodriguez, that she be fired. The reasons for the recommendation are not set out in the opinion.

Rodriguez first agreed, but then decided to give Mora a different position in his own office “where he could observe her more closely.” Mora worked with Rodriguez for a month. Rodriguez claimed during that time Mora was responsible for several errors and displayed a lack of professionalism.

At the end of the month, Rodriguez fired Mora. When he did so, according to Mora, Rodriguez called her into his office and said:

I need someone younger I can pay less … I need Elena [Quevedo, a 25 year old employee]

In addition, one employee heard Rodriguez tell Mora:

You are very old and inept. What you should be doing is taking care of old people. They really need you. I need somebody younger that I can pay less and I can control.

Another employee heard Rodriguez say “she’s too old to be working here anyway” in reference to Mora.

In the course of Mora’s lawsuit filed under the Age Discrimination in Employment Act, (“ADEA”) Rodriguez denied making these discriminatory remarks. In addition, the Hospital argued that even if it did discriminate against Mora, she would have been fired anyway because of poor performance.

The district court agreed with the defendant, concluded that the Hospital had met its burden under the “same decision” affirmative defense, and granted judgment in favor of the Hospital. Mora appealed.

The Eleventh Circuit Reverses

Mixed Motive Analysis Wrongfully Applied

Part of the reason why the Eleventh Circuit reversed the decision was because it found that the district court wrongfully applied a Title VII mixed motive analysis to an ADEA case.

The discussion involves a lot of complicated and tortured law, but here’s the simplest I can make it.

In the landmark Supreme Court case of Price Waterhouse v. Hopkins decided in 1989, the evidence showed that the partners at Price Waterhouse made sexist remarks and engaged in gender stereotyping when they denied Ann Hopkins partnership in the firm. In other words, there was direct evidence of discrimination.

In its holding the Supreme Court set out a new standard which could be applied to cases with direct evidence of discrimination. In sum, when a plaintiff shows that race or sex discrimination was a motivating or substantial factor in an employment decision, the burden of persuasion shifts to the employer to prove that it would have made the same decision anyway (in the absence of the discriminatory motive.)

Since the Price Waterhouse decision, this kind of discrimination case is often referred to as a “mixed motive case” with a “same decision defense.”

In Moro’s case, the district court applied the Price Waterhouse mixed motive analysis and ruled that the Hospital proved its “same decision” defense. It concluded that Mora ‘s termination was inevitable given the number and severity of her workplace problems and that no reasonable jury could find otherwise. And so she lost as a matter of law.

The problem with the district court’s ruling — according to the 11th Circuit — is that the Supreme Court’s decision in Gross v. FBIS Financial Services (2009) held that the Price Waterhouse mixed motive burden shifting analysis only applied to discrimination claims brought under Title VII and did not apply to the Age Discrimination in Employment Act. ( I wrote about the awful Gross case here and here)

Consequently, since the mixed motive burden shifting analysis was wrongly applied, the defense was not entitled to its same decision defense, and the district court’s reliance on that defense in finding against the plaintiff was reversible error.

The Jury Should Decide Whether Mora Was Fired Because Of Her Age

After the 11th Circuit explained why the district court’s analysis was wrong, it went on to explain what the correct analysis is – and unlike the above discussion, it’s all very straightforward from there.

A plaintiff in an ADEA case may prove illegal age discrimination with either direct or circumstantial evidence. Moro testified that she was fired because of her age, and two co-employees substantiated her. The Hospital denied that the comments were made which meant that material facts were in dispute and the case properly belonged in front of a jury.

As the Court put it:

The resolution of this case depends on whose account of the pertinent conversations a jury would credit. …..

A reasonable juror could find that Rodriguez’s statements should be taken at face value and that he fired Plaintiff because of her age. For us to conclude otherwise would be to deny Plaintiff the benefit of resolving all reasonable inferences in her favor as the nonmoving party.

Given the disputed question of material fact, Defendant was unentitled to a summary judgment.

Take Away

It’s awfully common for people to be let go because they are considered by some to be too old and too expensive. I can’t count the number of times I have represented people who were fired for just those reasons.

In this case, Josephine Mora was told, “you’re too old. I need to find someone younger and cheaper.” If it’s not a case of age discrimination, I don’t know what is.

It’s both astounding and disheartening that forty three years after the passage of the Age Discrimination in Employment Act, a court faced with such strong evidence of age discrimination could throw the plaintiff out, grant judgment in favor of the employer, and deprive the employee of her right to a jury trial

It’s a good thing the Eleventh Circuit fixed the mistake and published this opinion, because if this woman can’t get her age discrimination case in front of a jury, I have a hard time figuring out who can.

image: lawblog.legalmatch.com

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.

You’ve Come a Long Way, Baby? Maybe Not.

Tuesday, March 16th, 2010

Is it legal to fire a front desk clerk for not being “pretty enough”? Not in Iowa. Last Monday, the Eighth Circuit Court of Appeals reversed a trial judge’s decision and ordered Lewis v. Heartland Inns of America to trial.

Brenna Lewis was a front desk clerk at Heartland Inns in Ankeny, Iowa. She was promoted to the day shift, sight unseen, after enthusiastic recommendation from previous managers. Once on the job, Lewis’ loose-fitting clothing and unisex appearance caused Director of Operations Barbara Cullinan to express reservations about whether she was a “good fit.”

Lewis wore short hair, no makeup and sported an “Ellen DeGeneres look.” She was “tomboyish,” friendly, and well-liked by customers. Cullinan preferred a pretty “Midwestern girl look” on the day shift. She fired the manager who refused to reassign Lewis and demanded that Lewis undergo a videotaped “second” interview to keep her job. A distraught Lewis objected to the second interview, questioning whether it was lawful to require one just because of her appearance. Three days later she was fired.

When Lewis sued Heartland for sex discrimination, the company countered that Lewis was terminated for “thwarting” the interview procedure and exhibiting “hostility” to Heartland’s policies. The trial judge dismissed the case. Lewis appealed. In January, a three judge panel ruled in Lewis’ favor. On March 8, the full court denied Heartland’s request for rehearing, and ordered the case back to jury trial.

In some ways Lewis’ victory is not surprising. Over twenty years ago, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the United States Supreme Court ruled in favor of Ann Hopkins, a hard-charging and aggressive manager denied partnership despite outperforming all other candidates in her year. Hopkins was told that future success at the firm would depend upon her learning to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”

The Court held that unless Price Waterhouse could prove that it would have made the same decision without reference to gender stereotypes, Hopkins was entitled to prevail on her sex discrimination claim because “we are ‘beyond the day’ when an employer could evaluate employees by … insisting that they matched the stereotype associated with their group.”

But are we? Consider this: Had Heartland Inns turned Cullinan’s personal preference for pretty women into a formal job requirement, the case might well have gone the other way.

In 2006, the Ninth Circuit received a great deal of notoriety for its decision in Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006). The famously liberal court ruled not once, but twice in favor of Harrah’s casino, after it terminated bartender Darlene Jespersen for refusal to comply with its “personal best” appearance code. The code, which included both gender-neutral and gender-specific requirements, mandated “big hair” and a daily makeup regime for women.

Jespersen, a highly regarded 20-year employee, felt degraded by makeup. The business of a bartender is to mix drinks, assess sobriety, and maintain order. Jespersen argued that wearing makeup interfered with the deft personal touch and sense of authority she relied upon to perform those functions. Unimpressed, the Court held that her “personal preference” did not trump Harrah’s “personal best” grooming policy.

Employers, particularly in the service industry, adopt gender-specific appearance standards for competitive advantage, and defend them on grounds of customer preference. Fortunately, the law already imposes limits on this “business case” for discrimination. “Customer preference,” once a serious barrier to hiring minorities and women, was struck down long ago. “Competitive advantage,” the rationale for requiring stewardesses to parade around in hot pants, was rejected with the tart observation that the business of airlines is to fly passengers safely, not to sell sex.

Even if the required “look” is not overtly sexy, enforcing an idealized standard of feminine attractiveness increases the salience of gender over competence. This can undermine the authority of women whose jobs involve controlling the activities of others: police officers, construction supervisors and – yes — bartenders and flight attendants. While there may be rare situations in which idealized gender-specific appearance is a “bona fide occupational qualification,” the essence of most jobs is providing a service, not fulfilling a fantasy.

Yes, we have come a long way, but sadly, we are not “beyond the day” when employers can enforce gender stereotypes. It should not matter whether a stereotype-driven termination is the result of an individual supervisor’s preference or a company-wide appearance policy, but it does. This is wrong. Courts should know better than to give the green light to gender stereotypes “dressed up” as formal job requirements. If this trend is not reversed, and soon, the resulting effect on equal employment opportunity will definitely not be pretty.

Image: Pick UPAbout the Author: Charlotte Fishman is a San Francisco attorney, and Executive Director of Pick Up the Pace, a nonprofit organization whose mission is to identify and eliminate barriers to women’s advancement in the workplace.

Work Doesn’t Have to Be Awful

Monday, March 15th, 2010

Image: Bob RosnerI’ve gotten a lot of email through the years. And most of it has been difficult to read—people who were cruelly fired, who are being hassled by coworkers or who have done something truly stupid (just this morning I just got an email from a woman who told me about how she sent her resume and cover letter to her current boss).

If you have a particularly macabre sense of humor it is possible to find my mail funny. But mostly it makes me sad.

So given the negative nature of most of my correspondence, the last few weeks have been a revelation for me. I’ve been working on a new business venture and I’m part of a team of four people putting together a business plan. One guy I’ve worked with on my last two books, so we have a bunch of history working together. The other two people were total strangers when we started. I barely knew either of them either personally or professionally. Another complicating factor is how different our expertise, world view and just general make up are from each other (that’s make-up in terms of approach to the world and not our use of rouge).

If this column had a sound track, you’d probably be hearing Steven Stills in the background singing “Love the One Your With.” (Don’t recognize it, then just ask the nearest boomer and they can hum a few bars for you).

Please note, I didn’t say that we were all singing “Kumbaya.” No this is a room full of Type A personalities. The key is as remarkable as it is simple. We all listen to each other. In fact, I can think of multiple areas where we all had hard and fast rules for what we wanted. We listened to the other people involved and either modified what we previously thought was essential.

I can hear what you’re thinking. It’s like a committee that produces lowest common denominator work. Not at all. We are actually able to draw the best from each person and then make it even better through our brainstorming.

One simple trick, we call it placeholders. When we have a name or idea that is good, but its clear to at least some of us that we could probably do better, we call the existing best effort our placeholder. We use it, but we’re always on the lookout to make it better. This is just one technique we’ve developed to not settle for okay, but to push for the best.

This experience has given me hope. It is possible to work with people who you like and respect and accomplish a lot in the process. You better sit down before you read this next sentence—not only is it possible to find colleagues that you can work with, I believe there are even a few sane bosses out there. The challenge is to find ‘em.

Okay, I’m sure that most of my regular readers think that either this blog has been hijacked or that I’ve lost my mind. It’s hard to argue with the latter argument, but after year upon year of horror stories from the cubicle world, I want to take a moment to report that work can be uplifting, collaborative and fun and not just a long process of letting all of the air out of your tires.

I’ve decided to go positive. I’ve learned from Allan, Shari and Jon that collaboration is a wonderful thing. Sure there are tough times, but the more brains you have at the table the better the quality of the work and the more fun you’ll have.

A few words for those stuck in a less than great working environment. I understand that people have mortgages, orthodontist bills and families to feed. That said, I’m hard pressed to say that there are just some jobs that are better to have in your rear view mirror. A paycheck just isn’t worth daily bouts crying, being yelled at or just feeling miserable. Hopefully this blog can play a small role in reminding you that there are saner possibilities out there.

I’ve also heard through the years from people who’ve taken a bad work environment and turned it around. Mostly through “random acts of kindness,” or building community, trust and support in a place where none exists. It’s not easy, but like flowers growing up through tiny cracks in a sidewalk, it happens.

There is a saying from an old court case, “Work time is for work.” But that doesn’t mean that it has to be a prison sentence—something to be endured. Work can have meaning, collaboration and, dare I say it, fun. But it probably won’t just fall in your lap. You’ll have to seek it out, but it’s out there.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Also check out his newly revised best-seller “The Boss’s Survival Guide.” If you have a question for Bob, contact him via [email protected]

Health Insurance Premiums Soar as New Polls Show Americans Want Reform

Friday, March 12th, 2010

Image: James ParksRecent polls show a majority of Americans want Congress to pass comprehensive health care reform now. And for good reason: There’s more news out this week about the enormous increases in health insurance premiums, according to a new report.

A survey from Economist/YouGov released this week shows 53 percent of respondents support changes proposed by the Obama administration. A second poll by Ipsos/McClutchey shows that 53 percent of Americans either support the current reform option or hope for an even stronger reform package. More than a third of those who oppose current reform proposals actually favor stronger reforms.

Meanwhile, a study by Health Care for America Now (HCAN) shows jaw-dropping insurance premium hikes—up 97 percent for families and 90 percent for individuals between 2000 and 2008. Premiums rose two times faster than medical costs and more than three times faster than wages. Companies like WellPoint are raising premiums by as much as 39 percent in California and by double digits in at least 11 states.

An analysis by the Kaiser Family Foundation found that people who bought insurance on their own between 2004 and 2007 on average paid more of their health expenses themselves—52 percent—than insurance companies. Yet those who had employer-sponsored coverage only paid 30 percent out of pocket.

The industry front group, America’s Health Insurance Plans (AHIP), heard plenty this week as thousands gathered in Washington, D.C., outside AHIP’s meeting to stage a citizens’ arrest for its crime in blocking health care reform.

Says Kaiser Family Foundation President Drew Altman:

The recent premium increases in the individual market probably have done more to illustrate the cost of doing nothing in health reform in simple, graphic terms people can understand than anything so far in the health reform debate.

*This article originally appeared in AFL-CIO blog on March 11, 2010. Reprinted with permission.

About the Author: James Parks had his first encounter with unions at Gannett’s newspaper in Cincinnati when his colleagues in the newsroom tried to organize a unit of The Newspaper Guild. He saw firsthand how companies pull out all the stops to prevent workers from forming a union. He is a journalist by trade, and worked for newspapers in five different states before joining the AFL-CIO staff in 1990. He has also been a seminary student, drug counselor, community organizer, event planner, adjunct college professor and county bureaucrat. His proudest career moment, though, was when he served, along with other union members and staff, as an official observer for South Africa’s first multiracial elections. Author photo by Joe Kekeris

VIDEO: 5,000 Activists Take the Fight for Reform Right to Insurance Companies' Doorstep

Thursday, March 11th, 2010

In DC yesterday, thousands of union members and health care activists from across the progressive movement took the fight for health care reform right to insurance companies’ doorstep. The massive protest started with a march from Dupont Circle to the Ritz-Carlton Hotel at 22nd and M Street, NW, led by more than 50 major labor organizations, health care reform activists, faith leaders, and 25 survivors of health insurance abuse.

Protesters flooded the streets and surrounded the site of the insurance lobbyists’ annual conference, where progressive leaders issued a peaceful citizens’ arrest of the insurance companies–while the dozens of law enforcement officials tried to rein in the huge crowd. Several progressive leaders who stood up on behalf of reform were escorted away by police (including SEIU’s Anna Burger and Dr. Toni L. Lewis).

It was truly a magnificent show of solidarity for reform. Watch this video footage for a taste of yesterday’s huge action:

More ways you can relive the March 9th citizens’ arrest of insurance companies after the jump.

Photos:

On Twitter:

  • The hashtag we created for today’s action, #m9, has been blowing up on Twitter all day. It’s been Twittered over 600 times so far, and it’s still going strong. Read the #m9 tweets here.
  • We live tweeted today’s action–check it out here.

Via media coverage & blogs:

Recap of what went down during the march on SEIU.org here.

More coverage also at Huffington Post, NY Times, Washington Post, DCist

More than 10,000 people have taken online action against insurance lobbyists on www.citizensposse.com, and sent over 2,500 faxes to the insurance companies’ fax machines so far. We know not everyone could be in DC to confront insurance lobbyists yesterday, but it’s not too late to do your part by spreading the message.

*This post originally appeared in SEIU Blog on March 10, 2010. Reprinted with permission.
About the Author: Kate Thomas is a blogger, web producer and new media coordinator at the Service Employees International Union (SEIU), a labor union with 2.1 million members in the healthcare, public and property service sectors. Kate’s passions include the progressive movement, the many wonders of the Internet and her job working for an organization that is helping to improve the lives of workers and fight for meaningful health care and labor law reform. Prior to working at SEIU, Katie worked for the American Medical Student Association (AMSA) as a communications/public relations coordinator and editor of AMSA’s newsletter appearing in The New Physician magazine.

JetBlue Loses Appeal On Hostile Work Ennvironment Age Discrimination And Retaliation Claims

Wednesday, March 10th, 2010

Complaints To Supervisor/Harasser Are Sufficient To Overcome Affirmative Defense On Hostile Environment Claim

There’s lots of meaty reading in the Second Circuit case of Gorzynski v JetBlue Airways Corporation decided this month. The 31 page opinion hits multiple issues including sexual harassment, age discrimination, race discrimination, and retaliation.

The Federal District Court threw out the case on summary judgment. The Second Circuit Court of Appeals reversed and this is why.

Facts Of The Case

It’s a long story, but here’s the gist of it.

JetBlue hired Diane Gorzynski as a customer service agent in January 2000 for its operation at Buffalo International Airport. She was 54 years old at the time. In May 2000 she was promoted to the position of Customer Service Supervisor and stayed in that position until she was fired on July 5, 2002.

The customer service supervisors were managed by James Celeste, the General Manager. William Thro, a regional manager, was responsible for overseeing the General Managers of several JetBlue stations.

During her employment, Gorzynski experienced age and gender discrimination including sexual harassment. She also observed discrimination of other employees. The main culprit was her supervisor, James Celeste.

Gorzynski complained to Celeste on numerous occasions about the discrimination and harassment she experienced and about the discrimination and harassment of her co-employees.

She was retaliated against and fired, she believed, because of her complaints.

The Lawsuit

Gorzynski filed a lawsuit claiming that JetBlue:

* discriminated against her because of gender in violation of Title VII of the Civil Rights Act of 1964

* discriminated against her because of age in violation of the Age Discrimination in Employment Act

* retaliated against her for complaints to her supervisors about age and gender discrimination and race discrimination of co-employees in violation of Title VII and the ADEA

She also claimed numerous violations on the New York Human Rights Law.

The federal District Court granted JetBlue’s Motion for Summary Judgment of all claims. Gorzynski filed an appeal.

The Second Circuit Reverses

The Faragher/Ellerth Defense

One of the most important and interesting parts of the decision is its holding regarding JetBlue’s affirmative defense on which the District Court hung its hat to throw out Gorzynski’s sexual harassment claim – and it’s a holding which can effect lots of people.

In order to establish a hostile environment sexual harassment claim, a plaintiff must produce enough evidence to show that the workplace was:

* permeated with discriminatory intimidation, ridicule, and insult that is

* sufficiently severe or pervasive to alter the conditions of the victim’s employment and

* create an abusive working environment

In analyzing a hostile environment claim, the court is required to “look at the record as a whole and assess the totality of the circumstances.”

In this case, Gorzynski presented evidence that Celeste:

* grabbed Gorzynsi and other women around the waist

* tickled them

* stared at them as if” he was mentally undressing them”

* made numerous sexual comments including remarks about wanting to suck on or massage their breasts.

The District Court did not consider this evidence. Instead, it found that JetBlue was entitled to win as a matter of law because of its “affirmative offense” under the Supreme Court Faragher and Ellerth decisions.

The employer is entitled to raise the defense in certain sexual harassment scenarios involving supervisors and co-workers if it can show that:

* it exercised reasonable care to prevent and promptly correct any harassing behavior and

* the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm

With respect to the first element, JetBlue presented evidence of its sexual harassment policy (contained in its employee handbook) which stated that: “any crewmember who believes that he or she is the victim of any type of discriminatory conduct, including sexual harassment, should bring that conduct to the immediate attention of his or her supervisor, the People Department or any member of management.”

JetBlue argued that Gorxynski was not entitled to proceed on her sexual harassment claim because she failed to take advantage of the policy in the handbook when she:

* only complained to her supervisor — the harasser

* did not complain to other members of management.

The District Court agreed with JetBlue and granted judgment in its favor on Gorzyynski’s sexual harassment claim.

The Second Circuit rejected the District Court’s conclusion and reversed. It stated:

We reject such a brittle reading of the Faragher/Ellerth defense. We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints.

Considering the courage it takes to complain about what are often humiliating events and the understandable fear of retaliation that exists in many sexual harassment situations, we decline to read the rule so rigidly.

Accordingly, we hold that an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser.

Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures.

In this case, the Court noted that:

* the other manager Gorzynski could have complained to was Thro — the regional manager

* the evidence showed that Thro was not receptive to receiving complaints from employees

* the evidence also showed that Thro was intimidating

* Thro retaliated against those who made complaints

Therefore, the Second Circuit held — in reinstating the sexual harassment claim — the question of whether or not Gorzynski unreasonably failed to take advantage of the options provided in the sexual harassment policy was a jury question.

Remaining Issues Of Fact For The Jury

Age Discrimination

Gorzyski established a prima facie case of age discrimination:

* she was over 40

* she was qualified for her position

* she was fired

* she was replaced by a woman in her 40’s

JetBlue countered this inference of age discrimination with its “legitimate business reason”: it fired Gorzynski because of her “management style,” “unprofessional conduct and poor interpersonal skills” and the “hostile work environment she created.”

The District Court found that Gorzynski did not present any evidence that JetBlue’s reasons were false or pretextual – and threw out her age discrimination claim.

The Second Circuit disagreed. Some of the evidence it noted was:

* the negative evaluation Gorzynski received from Celeste — a 2 out of 5 — was conducted after he had supervised her for only one week

* a contemporary, anonymous crewmember gave her a 4 out of 5

* at the same time Celeste gave Crowly, a 30 year old customer service rep. a 4 out of 5 even though Crowly had been written up and counseled on numerous occasions –Celeste then promoted him

* JetBlue’s investigation regarding an incident which immediately preceded Gorzynski’s discharge was “questionable at best”

* Celeste told Gorzynski she reminded him of his 80 year old aunt

* younger employees were not disciplined for violating numerous policies including smoking and sleeping on the job

The Court stated:

Given the cumulative weight of this evidence, we believe that a reasonable jury could find not only that the explanations given by JetBlue for Gorzynski’s termination were pretextual, but also that, together with Celeste’s passing comment about his aunt, it was her age that was the ‘but for’ cause of Gorzynski’s termination.

Accordingly, we vacate the District Court’s dismissal of Gorzynski’s age discrimination claims.

(the case also has a very interesting discussion of “age plus” discrimination in connection with her claim that Celeste discriminated against older women)

Retaliation

The District Court also dismissed Gorzynski’s claim that she was discharged in retaliation for complaining about race, gender and age discrimination.

In order to establish a retaliation claim, the plaintiff must show

1. that she participated in a protected activity
2. suffered an adverse employment action
3. a causal connection between her engaging in the protected activity and the adverse employment action

The Second Circuit reversed the District Court’s holding on the retaliation claims noting in part:

* five months – the time between Gorzynski expressed concern about a co-workers race discrimination and her discharge – was “not too long to find a causal relationship.”

* a complaint about a sexual harassment incident two months before her discharge sufficiently alleged a causal connection between her protected complaint about sex discrimination and her termination

* Gorzynski’s statements in her affidavit that there was unequal enforcement of the rules at the Buffalo station with respect to older employees versus younger employees should have been considered by the Court

In sum, the Court said

JetBlue has articulated a legitimate nondiscriminatory reason for Gorzynski’s termination, and Gorzynski has produced evidence that casts significant doubt on that rationale, leaving a triable issue as to whether JetBlue retaliated against her for complaining about prohibited discrimination.

Lessons To Be Learned

The decision is filled with points of law that are very helpful to employees who have filed employment discrimination claims. It gives numerous examples of what may be considered evidence of disparate treatment, pretext, and retaliation.

It also has a very interesting discussion of gender/age “plus” discrimination, where a subset of women are being discriminated against in the workplace, ie., older women, or black women, but not all women — which in reality is quite common.

Most noteworthy is the discussion of the Faragher/Ellerth defense. While it is critical for those who have been sexually harassed to complain to someone in management, the opinion makes it clear that victims of sexual harassment will not lose their rights because they did not complain to each person designated in a company’s sexual harassment policy.

Complaints to the supervisor/harasser are sufficient. That particular point of law will be a huge help to many victims.

Images: www.bajanfuhlife.com/news/news

*This article was originally published in Employee Rights Post on February 28, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.

Racial Slur at Chevron Sparks Outrage

Tuesday, March 9th, 2010

OtaPhoto2SAN FRANCISCO, CA — Chevron Corporation’s multi-million dollar “Human Energy” advertising campaign touts how much Chevron values people.  Chevron’s website promotes the “Chevron Way” – the company’s commitment to complying with the law and placing “the highest priority on the health and safety of our workforce.”

The reality for John Suzuki, who worked at Chevron for over 35 years, was much different.  An award-winning patent liaison in Chevron’s Law Department in Richmond, CA, Suzuki was forced to take early retirement this month rather than risk his health by returning to work under a supervisor who harassed and threatened him, and called him a “stupid Jap.”

Suzuki wanted to continue working at Chevron, but the company refused his doctors’ directives that he must be moved to a different department or else he would be at high risk of having a heart attack.

“Stupid Jap” Slur

The doctors had diagnosed Suzuki as being at high risk of another heart attack after he had at least two episodes of severe chest pains following incidents in which his supervisor, Alan Klaassen harassed him by yelling at him, making false accusations and threatening him.

After one such incident in January 2008, Suzuki went to his doctor, who told him that he had to reduce his workload or else he might have a heart attack.  When Suzuki told Klaassen and a manager, Frank Turner, what his doctor said, Klaassen and Turner laughed at Suzuki.

Things came to a head in August 2009 when Klaassen again yelled at Suzuki, waved his fist in his face, threatened him and falsely blamed him for problems in the work.  Klaassen also called Suzuki a “stupid Jap.”

Use of racial slurs by supervisors on the job violates federal and state anti-discrimination laws and laws prohibiting hostile and abusive work environments.  As one federal appeals court noted in 1993, “Perhaps no single act can more quickly ‘alter the conditions of employment and create an abusive working environment’ . . . than the use of an [unambiguous] racial epithet . . . by a supervisor….”

Following the August 2009 incident, Suzuki again suffered severe chest pains.  His doctors put him on medical leave and have been treating him since then.  They told Chevron that he could return to work only when he was taken out of his hostile work environment and  moved to a different department.

Chevron categorically refused to consider moving Suzuki to a different department.  If Suzuki did not return to his department and his supervisor Klaassen, he faced termination, Chevron told him.

Suzuki got an attorney, John Ota of Alameda, CA, who pointed out to Chevron that under California law, the company must separate Suzuki from Klaassen, at the very least until Chevron did a fair and thorough investigation of Suzuki’s charges that Klaassen had insulted him with a racial epithet and otherwise created a hostile work environment.

Investigation or Cover-up?

Demanding that Suzuki return to work under Klaassen before Chevron had even investigated the matter assumed that Klaassen would be cleared, Ota noted, an indication that  Chevron had no intention of conducting a fair and objective investigation as required by law.

Chevron refused to budge.  Faced with termination and the possible resulting loss of his retirement benefits, Suzuki reluctantly chose early retirement on February 1.

Meanwhile, Japanese American and Asian American organizations, disturbed about Suzuki’s situation, began contacting Chevron to express their concerns.

Richard Konda, Executive Director of Asian Law Alliance in San Jose wrote Chevron on January 12, stating that it was “highly inappropriate and insensitive” for Chevron to demand that Suzuki return to work under Klaassen before completing its investigation.

Patty Wada, Regional Director of the Japanese American Citizens League (JACL) Northern California-Western Nevada-Pacific District, said in a  January 22 letter that she was appalled to hear that Suzuki had been subjected to racial slurs by his supervisor.

Under pressure, Chevron hired an outside Japanese American attorney, Susan Kumagai, to investigate Suzuki’s charges.  On her website, Kumagai describes herself as a specialist in “representing management” against discrimination charges.

Suzuki asked Kumagai and Chevron how many such investigations Kumagai had done in the past and in how many of those investigations, if any, she had concluded that a hostile work environment existed.  Neither Kumagai nor Chevron responded to these questions.

Not surprisingly, Kumagai conducted a quick investigation and concluded that none of Suzuki’s charges could be substantiated.  Chevron informed Suzuki of these results on February 16, but refused to provide him with a copy of Kumagai’s report.

In her hasty effort, Kumagai failed to even talk to some witnesses Suzuki said could confirm that he told them about Klaassen’s racial slur soon after it happened.  Because in this, as in many other harassment cases, there were no witnesses to the actual harassment, such corroborating witnesses are often crucial to verifying the victim’s account of what happened.

The failure to interview corroborating witnesses, hiring as the investigator an attorney who defends management for a living, and Chevron’s refusal to provide Suzuki with a copy of the investigation report – these are all “signs pointing to a cover-up,” not a fair and objective investigation, says Ota.

Letter Writing Efforts

Suzuki is continuing to ask organizations to write Chevron on his behalf.  What is important to him, he says, is “the principle of the matter – racial remarks like this cannot be tolerated.”

The points he wants organizations to make in their letters to Chevron are first, that Chevron conduct a fair and thorough investigation of his charges, an investigation by someone who has a history of doing evenhanded investigations, not by a management defense attorney.

Second, Suzuki wants Chevron to provide him with Kumagai’s investigation report, and also to provide the report when a fair and thorough investigation is completed.

Last, Suzuki asks that Chevron fire Klaassen if it finds that Klaassen did call Suzuki a “stupid Jap” and that Suzuki be allowed to return to work at Chevron in a different department.

Leaders of Nikkei for Civil Rights and Redress (NCRR) in Los Angeles wrote to Chevron on February 10.  Paul Osaki, Executive Director of the Japanese Community and Cultural Center of Northern California sent Chevron a letter on February 19.

Other organizations in Los Angeles, San Jose and San Francisco have also agreed to write to Chevron.
Those interested in contacting Chevron should write to: John S. Watson, Chief Executive Officer, Chevron Corp., 6001 Bollinger Canyon Road, San Ramon, CA 94583.

About the Author John Ota is a solo employment attorney in Alameda, CA.  He has been representing employees for over 11 years in discrimination, retaliation, harassment, wrongful termination, and overtime pay cases.  He is a member of the National Employment Lawyers Assoc. and the California Employment Lawyers Assoc.

Unlikely Pairings

Monday, March 8th, 2010

Image: Bob RosnerI was reading the newspaper yesterday and I came across two words that just didn’t go together. They weren’t exactly an oxymoron, just moronic. At least that’s how they struck me. “Playboy radio.”

According to the article that I read, one of the satellite services is taking the bunny to radio. This challenged everything that I thought I knew about guys. That we’re visual creatures and that we’re not the best abstract thinkers. Playboy radio?

Okay, I get it that there is a thriving business in 900 phone numbers. So there is some precedence for talking dirty on the radio. But this business summed up to me everything that a real guy would have no interest in. Which got me thinking about other things that I would have never put together—like Poker TV, men’s mousse and “Adult Outlet” (I saw that on a billboard in Las Vegas a few years ago).

Unlikely pairings. And the more I thought about it they’re one of the real keys to innovation; the ability to put things together in a new and innovative way.

Meeting the needs of your existing customers is a challenge. You’ve got to watch and listen. And be prepared to shake things up when they aren’t being served. But the really tough part is serving the needs of your customers that they don’t even know they have. Their unrealized needs.

How do you find someone’s needs that they don’t even know they have? It’s not easy. You’ve got to understand their business so well that you can anticipate totally new solutions for today’s and tomorrow’s problems. For example, how many of you out there ever imagined the Internet or email before you had your first computer. Be honest.

Most of us can’t imagine something that is a few steps beyond anything we’re currently using. Take hybrid cars or the iPod. Both are relatively small leaps from things that already existed. But I’m guessing that they were a totally surprise to most of you. Heck, I’ll admit, I never saw either of them coming. And now I find both essential.

Sure there are some innovations that just come out of thin air. But most of them come in a more pedestrian way, they come from combining two unlikely things to create something totally new.

So the next time you see an unlikely pairing, and trust me you will, appreciate the leap of faith that someone took to create it. Sure it might be a bridge to nowhere, but at least they asked the questions and explored a new direction to take things.

And hopefully the unlikely pairing will motivate you to explore your own unlikely combination. Something that will push you in a new direction. I’d like to continue with this conversation about innovation, but I’ve got an important radio program that I need to listen to.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Also check out his newly revised best-seller “The Boss’s Survival Guide.” If you have a question for Bob, contact him via [email protected]

Central Falls Superintendent Agrees to Resume Talks with Teachers

Thursday, March 4th, 2010

Image: James ParksThe school superintendent who last week fired all teachers at Central Falls (R.I.) High School has agreed to resume bargaining and include the union in all discussions on a comprehensive education plan that will help students and teachers succeed. The move followed a nationwide public outcry, with thousands signing an online petition to tell school officials the students deserve better and they should work with teachers to build on improvements at the high school. (Keep the pressure on the Central Falls school administration. Sign a petition here.)

AFT President Randi Weingarten said in a statement that she was pleased the superintendent has agreed to resume talks:

The dedicated teachers and staff [of Central Falls High] want nothing more than to continue and improve upon the progress they have made. Real, sustainable change will only happen when all stakeholders work together.

The AFT is committed to supporting Central Falls Teachers Union President Jane Sessums, the students of Central Falls High School and our members, the educators of Central Falls, throughout the negotiations and process of transforming the school.

On Feb. 23, the Central Falls school trustees fired the entire teaching staff of the high school, which is located in Rhode Island’s smallest and poorest city.

In all, 93 got pink slips—74 classroom teachers, plus reading specialists, guidance counselors, physical education teachers, the school psychologist, the principal and three assistant principals. Negotiations over strategies to improve the school between teachers and the school superintendent broke down when the superintendent walked away from the table and fired the teachers.

*This article originally appeared in AFL-CIO blog on February 24, 2010. Reprinted with permission.

About the Author: James Parks had his first encounter with unions at Gannett’s newspaper in Cincinnati when his colleagues in the newsroom tried to organize a unit of The Newspaper Guild. He saw firsthand how companies pull out all the stops to prevent workers from forming a union. He is a journalist by trade, and worked for newspapers in five different states before joining the AFL-CIO staff in 1990. He has also been a seminary student, drug counselor, community organizer, event planner, adjunct college professor and county bureaucrat. His proudest career moment, though, was when he served, along with other union members and staff, as an official observer for South Africa’s first multiracial elections. Author photo by Joe Kekeris

Upward Assessment of Darth Vader

Wednesday, March 3rd, 2010

Image: Noel S. WilliamsA recent survey by The Conference Board, a not-for-profit organization that disseminates information about business management and economic trends, showed that job satisfaction in America hit a record low in 2009.  Part of the problem is managers who run roughshod over morale.  Part of the solution is employee surveys that provide an underpinning for managers’ performance appraisals.

Formal grievance procedures against miscreant managers are a drastic option, and often bring adversity to the whistleblower.  But so-called “upward assessments” empower subordinates by giving them input into management performance appraisals.  Measuring management behavior, not some nebulous notion that “the company cares about its people,” will rein in abusive managers simply because once something is measured, it generally improves.

I don’t need to refer to the human resource trend du jour — I already know this because my previous manager was Darth Vader reincarnate.  Recognizing the threat to his evil little empire, he usurped the survey process, twisting it to the dark side.

Published norms, articles about workplace bullying, quarterly process meetings and retreats were all his decoys, but his ultimate subterfuge was the employee survey.   He cunningly constructed this devious document to shirk responsibility and shroud his malice.  His dastardly plot recognized that direct surveys represented a powerful check upon his unfettered malevolence.

When I started this job I was bemused that our 25-person department had its own set of norms:  ten principles that basically boiled down to the golden rule.  Everyone else in our large organization was content to operate under organization-wide principles.

On the surface, our department was a group of top-notch professionals working in accord.   It seemed we had struck the optimal balance between efficiency, effectiveness and employee moral, but why did we have a special set of norms, I wondered?   Why were they plastered everywhere:  on the conference room walls, on our manager’s door, in meeting rooms?  One could not walk more than a few yards without encountering them.

I was new, but no one on our team seemed capable of belittling, intimidating, disrespecting or otherwise mistreating a co-worker.  Was this because of the norms?  Or was something more sinister at play that the norms were hiding?

A few months after I started it was time for my first quarterly “process” meeting.  As far as I could tell, this was rare, if not unique to our department.   Part of the unusual agenda called for a discussion of our norms and a potential employee survey.  An extra copy of our norms was posted on the meeting room door, almost as if there had been a recent breach of etiquette.  There had been, many breaches, the perpetrator ambushing her victims then squirming to our manager Darth for refuge.

As I ventured more frequently into various domains within our organization I noticed people wincing when I told them where I worked.  But I was new, an innocent wookie oblivious to the dark side of the force.  I went about my merry way even as my day or reckoning drew closer.

Our next departmental oddity was our yearly retreat.  Wait a minute; retreats are for dysfunctional teams, aren’t they?   I remembered from business school they might be an appropriate venue for an organization that manufactured widgets even while marketing was promoting screws and operations was into nails.  Clearly, they needed a retreat, but not our small, laser-focused workgroup; unless, of course, this was part of the elaborate charade.

It was, and my days of blissful ignorance were ripped asunder back at H.Q. when I fell into the crosshairs of Darth’s personal assistant.  Apparently, my tendency to ponder nuances annoyed her.  For daring to suggest that inventory items need to be entered into a database for proper tracking I was publicly excoriated.  Such was her venom that several witnesses were quite shaken, a 12-year veteran of salty Navy language, I was even taken aback but maintained enough composure to suggest she read our norms.

I was beginning to connect the dots.  Our department’s public image was but a cover up, all a happy face on a veil that concealed the twisted anger of an ogre who was mollycoddled by lord Vader himself.

I was but the latest victim of a long line of rapacious rampages where employee pride and self-confidence were laid waste.  No wonder everyone was so compliant and cooperative, they had succumbed.  After each devastating raid, our resident ogre sought respite in Darth’s chamber.  Job done, she then retreated to her cube to suddenly transform into the public image of serenity beneath her conspicuous copy of our incongruous norms.

Now I knew why everyone winced, everyone except unaware upper-level management.  Job satisfaction is good for productivity so they must be informed.   Not through formal grievance procedures,  but by eliciting employee input into our manager’s performance appraisals, Darth could be redeemed, and the ogre laid bare and slain.

By attempting to hijack it, our manager had shown his repressive regime’s soft underbelly: the employee survey.   His rendition was an utterly corrupt and deceitful document that deliberately avoided questions about management, misdirecting potential blame to feeble droids.  The sham demonstrated that a targeted survey could be powerful straightjacket on managers disposed to running amok.

An employee survey designed to elicit upward feedback would shine light into the dank crypt where he and trusted assistant conspired to wreak havoc.  Executives could then expose the tyranny lest another promising career be dashed.  Powerful energies aimed at self-preservation could be unleashed toward productive ends, and that represents a big disturbance in the force for good.

About the Author: Noel S. Williams currently enjoys work as an Information Technology Specialist.  While he also holds a master’s degree in Human Resource Management, it is his training as Jedi Knight that gives him the fortitude to delve into the dark side of workplace unfairness.

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