Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘discrimination litigation’

Truck Driver Wins Gender Discrimination Case In Fourth Circuit

Thursday, April 29th, 2010

Court Elaborates On Types Of  Evidence For Proof Of  Discrimination

The recent case of Merritt v. Old Dominion Freight is hands down one of the best decisions I have come across in a long time.

It addresses gender discrimination, sex stereotyping, and a corporate culture of discrimination in a way few cases have. It’s simply a great case for employees – particularly for victims of sex discrimination.

What Happened In The Case

Merritt worked as a line haul truck drive for Old Dominion, a nationwide trucking company. As a line haul driver, Merritt made lengthy cross-country trips. She performed her duties without incident or complaint. At some point, Merritt became interested in becoming a pickup and delivery driver so she could work more regular hours and spend  nights and weekends at home.

To prove that she could do the job, she filled in numerous times as a pickup and delivery driver, and once again performed the duties without incident or complaint.

When a permanent pickup and delivery position became available at Old Dominion’s Lynchburg Virginia terminal, Merritt talked to Bobby Howard, the terminal manager about it. Howard told her that he lacked the authority to fill the position and proceeded to hire a less experienced man for the job.

The following year another permanent pickup and delivery position became available in Lynchburg and Merritt again expressed an interest in the position to Howard. Once again, Merritt was passed over in favor of a less experienced male.

When Merritt asked why she was not hired, Howard told her that :

  • it was decided and they could not let a woman have that position.
  • the company did not really have women drivers in the city (as pick up and deliver drivers)

On another occasion he told her:

  • the Regional VP was worried about hiring a female pickup and deliver driver because women were more injury prone and he was aftaid a female would get hurt
  • the VP didn’t think a girl should have that position

Finally, a year later, Old Dominion hired Merritt to fill a permanent Pickup and Delivery position in Lynchburg. Merritt was placed on a ninety-day probationary and told she could lose her job if any performance problems arose. Male drivers were not subject to similar probationary terms.

For the next two years, Merritt performed her Pickup and Delivery duties without a problem. Unfortunately, she then suffered an ankle injury at work which was diagnosed as plantar fascititis with a superimposed strain. She was put on light duty work by her doctor at first, but a couple of months later, he gave her a clean bill of health.

When she attempted to return to her regular duties, Brian Stoddard, Vice President of Safety and Personnel, required Merritt to take a physical ability test (“PAT”), a full-body test divided into six components that evaluates the test taker’s general strength, agility, and cardiovascular endurance. The test was graded on a pass/fail basis. The PAT was created for Old Dominion to be used in the hiring process and had been used to evaluate potential hires, but only on a variable basis.

Merritt struggled with several segments of the test and received a failing grade. According to Merritt, the tasks she had problems with had nothing to do with her ankle. In one portion of the test, for example, Merritt was unable to place a box of weight on an overhead shelf simply because she was too short.

After receiving the results of Merritt’s PAT, Stoddard terminated Merritt’s employment. Merritt filed a charge of sex discrimination with the EEOC and then filed a lawsuit in federal court in Western District of Virginia claiming that Old Dominion terminated her because of her gender in violation of Title VII Civil Rights Act of 1964.

The district court granted judgment against Merritt because it found that Old Dominion produced a legitimate reason for firing Merritt (she failed the PAT) and because she had not produced any evidence that Stoddard (the decision maker) harbored any “discriminatory animus” towards Merritt. Merritt appealed.

The 4th Circuit Court of Appeals Reverses

Title VII makes it unlawful to discriminate against an individual on the basis of sex. The most prevalent  method of establishing discrimination is under the burden-shifting framework set forth in the Supreme Court case of McDonnell Douglas Corp v. Green which goes like this:

  • The plaintiff makes out a prima facie case of discrimination
  • The burden shifts to the employer to articulate a legitimate, non-discriminatory justification for its allegedly discriminatory action
  • If the employer carries this burden, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the neutral reason offered by the employer was not a true reason but a pretext for discrimination.

Ultimately, the plaintiff has the burden of proving that he or she was a victim of intentional discrimination.

In this case, Old Dominion put forth its legitimate non discriminatory justification for discharging Merritt – her failure to pass the PAT.  That proved, according to Old Dominion, that Merritt did not have the “requisite physical strength to safely perform the job duties.” Merritt insisted that this rationale was a pretext for discrimination.

The Court of Appeals agreed with Merritt and found that the “record as a whole supports Merritt’s claim that a jury could find that discrimination on the basis of gender was afoot.”

According to the Court, Merritt produced plenty of  evidence that Old Dominion’s explanation for her discharge was “unworthy of credence.” For example, Merritt’s doctor stated that there was nothing about Merritt’s medical condition which would have prevented her from performing her job duties as a Pickup and Delivery driver. As the Court pointed out:

Old Dominion terminated a good employee who, pre-injury, performed her job ably and without complaint and who, post-injury was both willing and able to report to this same job for work. These facts, if believed, would allow a jury to think Old Dominion was simply looking for a reason to get rid of Merritt.

In addition, the Court found that Merritt produced evidence of discriminatory intent. For one:

  • Injured male employees did not have to take the PAT test
  • Merritt produced evidence that the policy requiring all injured employees to take the PAT test did not exist

As the Court stated:

While a neutral policy serving Old Dominion’s legitimate business interests in public and employee safety could certainly be put in place, a trier of fact could reasonably find that Old Dominion’s selective application and ever-changing rationales for the PAT were designed to conceal intent to reserve the plum Pickup and Delivery positions for male drivers.

In addition, the district court ignored evidence of the corporate culture of discrimination produced by Merritt. The Court stated:

It is not unfair to observe that the corporate culture evinced a very specific yet pervasive aversion to the idea of a female Pickup and Delivery Drivers. Old Dominion employees, of all ranks, seemed to share a view that women were unfit for that position. …..

While the views of others are no proof of the views of Stoddard, at some point the corporate environment in which he worked places Stoddard’s own selective use of the PAT in Merritt’s case in a less neutral context.

In Lattieri v. Equant, ….[w]e deemed the plaintiff’s ‘powerful evidence showing a discriminatory attitude at her company of employment toward female managers’ sufficient to ‘allow a trier of fact to conclude that these discriminatory attitudes led to plaintiff’s ultimate termination.’ Likewise here.

The sum, the Court said:

Old Dominion fired an employee who was, according to the district court, able to do her job without assistance and in a satisfactory manner’ due to a treatable ankle injury, while hiding behind the results of a selectively administered physical fitness test that test that did not even purport to test the injury, and while dubiously claiming that its decision was compelled by a late-blooming policy, all in the context of, to put it mildly, a sexually stereotype work environment.

In this case, it not any single piece of evidence but rather the evidence taken in its entirety that leads us to believe Merritt deserves a trial….

Based on all of the foregoing reasons, we reverse the district court’s grant of summary judgment to Old Dominion and remand for trial on Merritt’s Title VII claim.

Take Away

This case helps women in circumstances similar to Merritt’s – firefighters, police officers, constructions workers, etc. — those in male dominated physical professions who still face widespread discrimination because they are simply not wanted.

Just this past fall, I counseled a female firefighter who was repeatedly seeking a promotion, and forced to take numerous tests that were not required of her male counterparts. It’s not an unusual scenario though this type of discrimination is precisely what Title VII is aimed to prevent. The Merritt case, no doubt, should help women fight for equality in the workplace.

In a broad sense, this case hits so many of the issues that come up in discrimination cases all of the time – “stray remarks,” “post- hoc justifications,” “shifting explanations,” the parsing of evidence by district court judges – to name a few, and frames them in a way that will be extremely helpful to employees and their lawyers in discrimination litigation in the future.

images: rlv.zcache.com

This post originally appeared in Employee Rights Post on April 28, 2010. Reprinted with permission.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

It's Nothing New: Male Dominated Professions Foster Culture Of Sex Discrimination

Tuesday, April 6th, 2010

Bankers and Police Officers Charged With Gender Discrimination, Sexual Harassment and Retaliation

Two vastly different professions – banking and law enforcement – yet they share something in common and that is a culture of gender discrimination.

It’s the same stuff that’s been going on for decades in spite of federal laws which make sex discrimination, pregnancy discrimination, and sexual harassment illegal in the workplace. I have heard similar complaints from women for close to 30 years. That’s one of the reasons why I think it’s important to to spread the word about some courageous women  who are out there fighting for their rights.

Here are some of the cases that made the news.

Citigoup and Goldman Sachs Accused Of Discrimination Against Mothers

Two women filed gender discrimination cases against Wall Street banks claiming they were discriminated against after taking time off to have children.

According to ABC news, Charlotte Hanna, a former Golden Sachs VP in the HR department claimed that she was demoted and moved from her private office into a cubicle after the birth of her first child.

She was then fired while she was on maternity leave with her second child. Hanna was told that her position was eliminated, but leaned that another employee was hired to take over her duties.

Dorly Hazan-Amir complained about a long standing “boys club” culture at Citigroup’s asset finance division since the beginning of her employment. When she got pregnant, things got worse.

One manager asked whether she planned to be a “career mom” or “mom mom.” Another told her if she planned to continue working, she would have to put her career first and family second. Her pregnancy became the butt of office jokes.

Wall Street has had an ongoing problem with sex discrimination. Morgan Stanley settled two class action lawsuits brought by thousands of employees for more than $100 million dollars in 2004 and 2007. Smith Barney paid out $33 million in settlement of a case two years ago.

Syracuse Police Officer Gets $400,000 Jury Award

Last month, a New York jury found in favor of Officer Katherine Lee on her claim of sex discrimination and retaliation against the Syracuse police department. It was the third significant verdict against the police department for discrimination, sexual harassment and retaliation of female officers in the last ten months.

Sgt. Therese Lore was awarded $500,000 by a jury in May, and Officer Sonia Dotson was awarded $450,000 last month.

Lee, a police officer for 14 years claimed she was repeatedly subjected to sexual harassment, and denied equal pay and promotions to her male counterparts.

Lee claimed that male officers frequently watched pornographic movies at the workplace and made sexually derogatory remarks about women. When she complained about male officers’ behavior, the department would conduct sham investigations, and then accuse her of misconduct for making those complaints.

A similar lawsuit was filed last week by Maj. Martha Helen Haire, a 22-year veteran of the LSU Police Department.

She sued the university claiming she was denied the position of chief of police, for which she was clearly qualified, because she is a woman.

Haire also claimed that she was harassed on account of her gender and “subjected to illegal retaliation/reprisal on account of her whistle-blowing activities consisting of protesting and opposing gender-based discrimination in the workplace.’”

Retaliation for complaining about discrimination and opposing discriminatory practices is illegal under Title VII.

It’s been decades since this kind of conduct has been declared illegal throughout the country yet sadly, the culture of discrimination and harassment in male dominated professions is awfully slow to change.

Images: corporette.com farm4.static.flickr.com

*This post originally appeared in Employee Rights Post on April 4, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Southwest Flight Attendant Wins ADA Appeal

Monday, March 29th, 2010

Employee Fired For Taking Medical Leave Gets Jury Verdict Reinstated

When does too much time off for an illness justify a termination because of poor attendance? Not every time according to a case decided this past week from the Fifth Circuit Court of Appeals. Here’s what happened.

Facts Of The Case

Edward Carmona worked for Southwest Airlines as a flight attendant. He was plagued with psoriasis since he was a teen. As an adult, Carmona developed psoriatic arthritis which causes painful swelling and stiffness in the joints during attacks of psoriasis on the surface of his skin.

During flare-ups, Carmona is in great pain and has difficulty walking and moving around. The flare ups occur three or four times every month and each flare-up lasts for three or four days.

In order to get time off as needed for his condition, Carmona filed for intermittent leave under the Family and Medical Leave Act. He was granted FMLA leave between 1998 and 2005, until Southwest determined that he had not worked enough hours to be eligible for renewal.

After Carmona’s FMLA leave expired, he was no longer able to excuse absences caused by his psoriatic arthritis. What followed was a round of progressive discipline which culminated in termination because of an accumulation of points relating to unexcused absences.

The Lawsuit

Carmona sued Southwest claiming that he was terminated because of his disability in violation of  the Americans with Disabilities Act. (ADA)*.

In order to prove an ADA claim, an individual must prove:

  • that he was an individual with a disability within the meaning of the ADA
  • that he was a qualified individual for his job, despite his disability,
  • and that he was discharged because of his disability

In order to establish a disability, Carmona had to establish that he had:

  • a physical or mental impairment that substantially limited one or more major life activities
  • a record of such an impairment or
  • that he was regarded as having such a impairment.

After a jury trial which Carmona won,  the judge granted judgment against Carmon as a matter of law on the grounds that he did not present sufficient evidence of a disability.  Specifically, the judge found Carmona’s intermittent limitations didn’t prove a substantially limiting impairment. In other words, the judge ruled that Carmona was not disabled as a matter of law and took away the verdict.

The Fifth Circuit Court of Appeals disagreed and reversed in it’s opinion issued this week. You can read the decision here.

In sum, it held that the verdict should stand because there was sufficient evidence for a reasonable jury to conclude that:

  • Carmona had an impairment that substantially limited his major life activity of walking
  • he was a qualified individual for his job
  • he was terminated because of his disability
Take Away

This is a really good decision for those who have conditions which cause intermittent disabling flare-ups and need to take time off of work because of it. It will particularly benefit those employees who work for employers not covered by the FMLA (companies with less than 50 employees).

The case also has a helpful discussion on Southwest’s core argument — that Carmona was not qualified for the job because of his poor attendance.

It’s also  good decision for those with cases pending before the ADA amendments Act of 2008. The Court did not apply the amendments retroactively, yet still found for the plaintiff under the narrower pre-amendments law.

The Court also wrote about reinstatement as a remedy — another topic we don’t see very often in ADA opinions.

In sum,  this case is a good result for employees and instructive to employers on the interplay of attendance policies and the ADA.

( *Carmona also had a Title VII claim; the jury found against him on that claim )

Image: blog.cleveland.com

*This post originally appeared in Employee Rights Post on March 27, 2010. Reprinted with permission by the author.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.


AIDS Discrimination Victim Gets New Trial

Thursday, March 25th, 2010

Admission Of EEOC No Probable Cause Determination Is Reversible Error

I ran across this case recently and I think it’s definitely worth talking about.  It deals with a real problem in discrimination cases that has been around for as long as I can remember and it affects just about everyone who files an EEOC charge.

The case, Byrd v. BT Foods, Inc., addresses the controversial issue regarding the admissibility of  EEOC findings at trial and it’s a good result for employees.

What’s The Problem?

When an individual files an EEOC charge, the EEOC  conducts an investigation. At its conclusion, the EEOC issues a determination letter stating one of two things:

  1. there was probable cause to believe that discrimination, retaliation, etc. occurred or
  2. there was no probable cause to believe that a violation of the civil rights law occurred

After the determination, the EEOC issues a Notice of Dismissal and Notice of Right to Sue which gives the individual the right to go to court.

Here’s the potential problem for the employee who did not prevail at the EEOC (or its state counterpart).  At trial, the employer always tries to introduce the EEOC dismissal and no probable cause determination.

In effect,  the employer wants to argue to the jury, “the government investigated this case, didn’t find discrimination, and you shouldn’t either.” It doesn’t take Clarence Darrow to figure out that this argument can be quite damaging to the plaintiff’s case at trial.

What Happened In The Case

Cemeshia Byrd worked at Wendy’s in Coral Springs, Florida. Byrd filed a lawsuit against BT Foods (doing business as Wendy’s Coral Springs) claiming that she was discriminated against when she was terminated because she had Human Immunodeficiency Virus (HIV).

Discrimination because of AIDS is illegal in the U.S. under the Americans with Disabilities Act. It’s also illegal under many state civil rights laws, including the Florida Omnibus Aids Act and the Florida Civil Rights Act.

Before proceeding to court, Byrd filed a charge of discrimination with the Broward County Civil Rights Division, an agency which conducts investigations for the Equal Opportunity Commission.

After receiving a no probable cause letter of determination, Byrd filed a lawsuit in Broward County Circuit Court claiming discrimination and intentional infliction of emotional distress.

Before trial, Byrd filed a Motion in Limine – which is a request for an order to exclude the admission of particular evidence at trial. Generally the gist of the augment on a Motion in Limine is that:

  • the evidence is irrelevant, highly prejudicial, or hearsay and
  • the jury should not be able to hear or see the evidence nor should there be any reference to it

In this case, Byrd asked for an exclusion of EEOC documents including the Notice of Determination and Notice of Dismissal of her EEOC charge.

She argued that the EEOC “NO PROBABLE CAUSE STATEMENT” written in capital letters in the Notice of Determination were highly misleading, unduly prejudicial, and too conclusory to provide any meaningful probative value . She also argued that the jury would be likely to give the dismissal and “no probable cause determination” more weight than is appropriate.

The judge ruled against Byrd and in favor of BT Foods on the Motion in Limine. During the trial, according to Byrd, BT Foods made the reasonable cause determination the centerpiece of its defense.

Byrd lost her jury trial and filed an appeal. In it she claimed that the court’s admission of the EEOC findings constituted reversible error which entitled her to a new trial.

The Court’s Ruling

With no Florida cases on point, the Fourth District Court of Appeals of Florida looked to federal law for guidance on the issue of admissibility of EEOC findings at trial.

It noted that the Eleventh Circuit Court of Appeals considered an EEOC determination “ordinarily admissible” and a decision which “rationalized that the reports are ‘highly probative’ due to the training and experience of the EEOC investigators.”

On the other hand, it went on to note that many federal courts have concluded that EEOC letters of determination are inherently prejudicial. The Court ultimately agreed that the letters in Byrd’s case should not have been admitted.

The Court wrote:

We agree with the reasoning of these courts, that a jury may find it hard, if not impossible, to independently evaluate the evidence presented to the parties after being informed that the EEOC has already investigated the claim and determined that reasonable cause does or does not exist to believe that unlawful discrimination has occurred…..

Several courts have reasoned that similar conclusory administrative determination letters, i.e., those which do little more than take sides, enjoy particularly low probative value, but possess especially high dangers of unfair prejudice.

The Court ruled that Byrd’s Motion in Limine should have been granted, reversed the lower court, and remanded the case for a new trial.

Take Away

The admissibility of EEOC findings has been plaguing lawyers who try discrimination cases since the civil rights laws were first passed. The whole issue has become much more important with the enactment of laws which give civil rights plaintiffs the right to to jury trials.

My former law students may recall that one of the first assignments I gave them was to draft a Motion in Limine regarding the admissibility of a probable cause finding and and argue its admissibility or exclusion.

As far as trials go, it should come as no surprise that  those of us who represent employees argue vociferously for the admission of a positive finding of discrimination by the EEOC. We argue just as strongly for the exclusion of a no probable cause finding.

Lawyers who represent employers of course make the same kind of arguments in reverse. I have had judges who have allowed the evidence in. I have had judges who have excluded it.

That’s why any law on this subject is helpful.

images: www.karlonia.com

*This blog originally appeared in Employee Rights Post on March 26, 2010. Reprinted with permission by the author.

About the Author: Ellen Simon offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. She’s recognized as one of the first and foremost employment and civil rights lawyers in the United States. Ellen’s a legal analyst and is available to discuss high-profile civil cases, employment discrimination and women’s issues. Quoted often in local and national news media, Ellen has been a regular guest on television and radio, including appearances on Court TV. For more information go to www.ellensimon.net or call 1-888-915-1952.

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/.

Eighth Circuit Sets Record Straight On Age Discrimination

Wednesday, September 30th, 2009

Age Discrimination Plaintiff Gets Great Decision From Court of Appeals

It looks like a typical age discrimination scenario. A supervisor makes hostile remarks about older employees and expresses a preference for younger ones. An older employee with an excellent record gets fired for trumped-up reasons and a younger employee is hired to replace her.

What seems like an obvious case of age discrimination was not so obvious to the Federal District Court in the Western District of Missouri when it threw out the case of Baker v. Silver Oak Senior Living Mgt. Co. on summary judgment.

Fortunately, the Eighth District Court of Appeals reversed this month in an important opinion about the proper interpretation of evidence in an age discrimination case. 

What Happened In The Case

Kathy Baker worked as the director of assisted living at a center operated by Silver Oak since 2003. Her 2004 review was excellent in every category.

A few months later, Carolyn Thomas was hired as Baker’s new supervisor. After taking over, Thomas told Baker that:

  • Silver Oak needed people that were “young and vivacious, not slow and old”
  • Baker “needed to get rid of the dead wood”
  • Employees who had been fired were “slow and old”

She also told Baker that:

  • She dressed like an old lady
  • Everyone had to “keep up with” two supervisors who were in their thirties

The CEO, Eric Lindsey, made similar remarks at meetings attended by Baker.

Thomas also admitted that she teased Baker about walking slowly and having poor hearing. She also repeatedly asked Baker to fire and discipline older employees.

When Baker told Thomas that  “you can’t get rid of employees just because they’re old,” Thomas responded that:

  • “firing older employees would allow Silver Oak to hire younger employees for less money’”
  • “younger employees would be better workers, have more energy, be more enthusiastic, and stimulate the residents”

After refusing Thomas’ demands to get rid of the older employees, Baker was disciplined and placed on indefinite probation.

The reason given was that Baker allegedly failed to get proper approval before admitting a special-needs resident and dismissed an employee without having an administrator present.

Baker claimed that that these allegations were false.

Following those events, Thomas gave Baker a negative performance evaluation and asked Baker whether she was going to quit. She said no.

A couple of months later, Baker went on an approved medical leave. She was called in at some point during her leave, told that she had been temporarily replaced and that she was being transferred to another city.

She was again asked if she wanted to quit and again she said no.

Shortly after that she was fired. The reason given was that she did not call in each day during her medical leave. Baker was 53 years old at the time.

Angela Thomas, age 30, temporarily took over Baker’s duties until a new director — 22 year old Starr McGinnes –  was hired to replace Baker a couple of months later.

The Lawsuit

Baker filed a lawsuit claiming age discrimination and retaliation under the Age Discrimination in Employment Act and under the Missouri Human Rights Act.

While it may seem hard to believe in the face of this record, the federal district court threw out the case and granted judgment in favor of Silver Oak on all claims stating that Baker:

  • failed to present any direct evidence that age was a motivating factor in her termination (a misinterpretation of the Gross decision)
  • offered no evidence that Silver Oak’s stated reasons for firing her were a pretext for age discrimination
  • did not engage in any protected activity which would support a retaliation claim

The Court Of Appeals Reverses

Baker appealed the incomprehensible ruling of the district court. The Eighth Circuit Court of Appeals reversed on all counts and gave Baker her day in court.

Here’s the gist of what the Court had to say.

Evidence of Age Bias

Statements by Lindsey (CEO) and Thomas (supervisor) — who participated in the decision to fire Baker — were evidence of a preference for younger workers over those protected by the ADEA.

As stated by the Court:

Lindsey’s statement to his management team that Silver Oak was ‘missing the boat by not hiring younger, vibrant people,’ and that employees ‘should start looking over applications better and try to consider hiring younger people’ is evidence that a reasonable jury could take to reflect a discriminatory attitude by one who participated in Baker’s termination.

Other evidence that the Court considered to support Baker’s age discrimination claim included:

  • Thomas’ criticism of Baker for dressing like an old lady
  • Thomas’ comments about keeping up with younger employees
  • Baker’s refusal of Thomas’ directions to discipline older workers
Evidence of Pretext

The Court also found that Baker presented plenty evidence of pretext — meaning that the reasons given for the discharge were not believable. Evidence of pretext can give rise to an inference of age discrimination and can be proved circumstantially.  “Direct evidence” is not essential.

In this case, that evidence of pretext included:

  • Baker’s explanation for why the probation was not warranted
  • Silver Oaks’ failure to follow its normal progressive discipline policy
  • Shifting explanations for why Baker was terminated:

As the Court stated:

Not every supplement to an employer’s initial statement of the reasons gives rise to an inference of pretext, but substantial variations raise suspicion.

[The evidence of pretext] is combined with evidence from which a jury could find that the management of Silver Oak harbored a discriminatory attitude toward older employees and desired to displace them in favor of a younger workforce.

Viewing all of the evidence together, we conclude that Baker has presented a submissible case of age discrimination under the ADEA.

Retaliation Claim Survives

Baker claimed that she was retaliated against because she opposed Silver Oak’s conduct which she believed to be unlawful age discrimination.

Baker filed an affidavit in which she stated that she repeatedly told Thomas:

  • That terminating older employees was wrong
  • You can’t get rid of employees just because they’re old

It’s a technical argument but in sum, the district court ignored the evidence because it was presented in an affidavit and not in Baker’s deposition or other court pleadings.

The Eighth Circuit held that the district court made an error in striking Baker’s affidavit and allowed Baker’s retaliation claim to proceed.

What’s Important About This Case

Everything but here’s the big three:

1.The case gives excellent illustrations about the kind of evidence from which a jury may infer age discrimination — including hostility towards older workers and/or a preference for younger ones.

2. On the subject of pretext the Court makes note of a failure to follow normal progressive discipline policies, and shifting explanations for the discharge.

This kind of evidence is quite common in discrimination cases, and it’s very helpful for employees to have a Circuit Court of Appeals affirm it as proof of pretext.

3. While it’s a technical point, mostly for the lawyers, it’s extremely helpful that the lower court was reversed because it struck Baker’s affidavit.

Clients don’t always remember everything important about their case when interrogated in a lengthy deposition. Many times salient points are not ever asked.

Consequently, adding important evidence to the record by way of a sworn affidavit is often necessary to fill in the evidentiary gaps. The Eighth Circuit recognized this necessary practice and affirmed its propriety.

It’s really good news for plaintiffs in discrimination cases and their lawyers.

All in all, it’s just a great case for employees who are unfortunate victims of age discrimination. It should also be instructive to employers as to what illegal age discrimination can look like in front of a jury.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. She has been listed in the National Law Journal as one of the nation’s leading litigators. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. Ellen has been listed as one of The Best Lawyers in America for her landmark work representing individuals in precedent-setting cases. She also received regional and national attention for winning a record $30.7 million verdict in an age-discrimination case; the largest of its kind in U.S. history. Ellen has served as an adjunct professor of employment law and is an experienced and popular orator. Ellen is Past-Chair of the Employment Rights Section of the Association of Trial Lawyers of America and is honored to be a fellow of the International Society of Barristers and American Board of Trial Advocates. In additional to work as a legal analyst, she currently acts as co-counsel on individual employment cases, is available as an expert witness on employment matters and offers consulting services on sound employment practices, discrimination awareness and prevention, complaint investigation and resolution, and litigation management. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post, and her website is www.ellensimon.net. Ellen has two children and lives with her husband in Sedona, Arizona.

This post originally appeared in Employee Rights Post on September 28, 2009. Re-printed with permission by the author.

image:therawfeed.com

New Supreme Court Age Discrimination Decision Will Be Gone in a Flash

Friday, June 26th, 2009

Did the Supreme Court Discriminate Against Victims of Age Discrimination?

The only good thing to say about the new age discrimination case of Gross v. FBL Financial Services, Inc. is that it will be gone in a flash. 

There are so many things wrong with it that it’s hard to know where to begin, and because I really do believe that it will be legislatively overruled in the very near future, I don’t want to beat it to death.

Let me say this. For those immersed in discrimination law, the opinion and the dissenting opinions are a must read.

For the rest of the country, I believe that the decision will have little impact and there are several reasons why that’s so.

Case Background

The question before the Supreme Court was whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed motive instruction in a suit brought under the Age Discrimination in Employment Act.

It’s a pretty dry academic issue with little to no practical effect in the real world of age discrimination litigation. 

For those interested in the background of the issues presented in the case, you can take a look at the article I wrote on the case when it was argued in March.

What The Court Did In The Gross Case

Instead of deciding the issue before it, the Court did two really strange things in this case:

  1. It decided an entirely different issue than the question accepted for review — one that was not properly presented or briefed.
  2. The issue it chose to rule on manifested a complete disregard for Supreme Court precedent and Congressional intent.

Here’s an attempt at an explanation.

Title VII of the Civil Rights Act of 1964 says that a person can’t be discriminated against  in his/her employment “because of ” his/her race, color, sex, religion or national origin.

The Age Discrimination in Employment Act (“ADEA”) was passed in 1967.  Like Title VII, the ADEA prohibits discrimination in employment  “because of ” age.

The Supreme Court has interpreted the “because of” language and so has Congress. 

The issue first came up for interpretation before the Supreme Court in the Price Waterhouse case in 1989.  In that case, Justice Kennedy pushed for a “but for” standard which meant that the plaintiff in a Title VII case would have to prove that “but for” his race (sex, national origin, religion, etc.) he would not have been terminated (demoted, transferred, etc.).

The Price Waterhouse decision rejected the “but for” standard and held that the plaintiff in a Title VII employment discrimination case bears the burden of  proving that membership in the protected class was a “motivating factor in the employment decision” in order to prove that he or she was discriminated against because of it.

Congress ratified the “motivating factor” interpretation when it passed the Civil Rights Act of 1991.The precise language of the statute is as follows:

An unlawful employment practice is established when the complaining party demonstrates that race, color religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

What happened in the Gross case last week is that the majority resurrected thebut forstandard and held that:

To establish a disparate treatment claim under the plain language of  the ADEA, the plaintiff must prove that age was the “but-for”cause of the employer’s adverse decision.

It’s important to point out that Title VII and the ADEA have previously been interpreted uniformly by courts throughout this country including the Supreme Court.

After all discrimination is discrimination, and it make no sense to use different methods, burdens, or standards of proof for age discrimination cases than sex or race discrimination cases, and it’s not been done before.

Why The Decision Makes No Sense

For all of the reasons why the majority opinion written by Justice Thomas (joined by guess who) is in my opinion, just  plainly wrong (there are other words I would love to use but I am constrained to be respectful) I recommend that you take a look at  Justice Stevens scathing dissent. Here’s a glimmer:

The Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae.  It’s failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible.

Unfortunately, the majority’s inattention to prudential Court practices is matched by its utter disregard our our precedent and the Congress’ intent.

Not only did the Court reject the but-for standard in [Price Waterhouse], but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII.

The Court’s endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law. 

I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. 

(Justice Souter agreed with Justice Stevens and also wrote a separate dissent. He raised additional problems with the “but for” language — not the least of which is that it’s a tort concept of causation that has no place in the actual context of a discrimination case and its proof.)

What’s Coming

The talk has already started about a Congressional bill which will overturn the decision. As reported in the Washington Times on Friday:

 Democratic lawmakers seized on Justice Stevens’ dissent as constitutional lawyers predicted Congress would make a law to lower the courts new bar for age discrimination cases. 

‘It is even more troubling that these five justices decided to go further than the question presented to the court,’ said Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat.

“This overreaching by a narrow majority of the court will have a detrimental effect on all Americans and their families. In these difficult economic times, American workers need to be protected from discrimination.”

Mr. Leahy said Thursday’s decision reminded him of the court’s “wrong-headed ruling in Ledbetter,” a reference to Lily Ledbetter, whose pursuit of equal pay to her male counterparts at Goodyear Tire & Rubber Co. was thrown out in 2007 because she filed the lawsuit after the expiry of a 180-day statute of limitations.

What’s the Practical Effect of the Decision?
  • As far as the loss of getting a mixed motive instruction in an age discrimination case, most plaintiff’s lawyers don’t care. It’s too confusing to the jury. So until it’s fixed legislatively, it really doesn’t matter.
  • Most experienced employment lawyers know that the “but for” language will have little effect on a jury.
  • Age discrimination plaintiffs will still have the opportunity, through the use of direct and circumstantial evidence, to prove that they were discriminated against because of their age — and this decision does not change that fact.

While some interpret the decision to  require proof that age was the sole reason for the discharge, I don’t think that’s clear at all from the language of the decision.

The majority opinion relies on a previous Supreme Court case, Hazen Paper Co. v. Biggens, and the language in it that says that “an age discrimination plaintiff can win if it proves that the discrimination played a (not the) role in the employer’s decision making process and had a (not the) determinative influence on the outcome.”

Plaintiffs in age discrimination cases can and will rely on that language to rebut the contention that a higher bar has been set. Justice Thomas also writes in a footnote that  the decision sets no “heightened evidentiary requirement for ADEA plaintiffs ” — so why not take him at his word.

In sum, I think it’s all academic and that the opinion will have little effect on the litigation or trial of age discrimination cases in the future. It will, however, make for a whole pile of briefing on what will shortly become a moot point.

The Bottom Line

The bottom line is that Congress has certainly never said that it should be harder to prove age discrimination than any other kind of prohibited discrimination and never intended that result.

It’s fundamentally unsound and intellectually dishonest to interpret the same words differently because one discrimination statute refers to race and sex and another refers to age. What’s more, it’s just totally confusing.

That’s why the Gross decision will, in my opinion, be gone in a flash.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.

This article originally appeared in Employee Rights Post on June 22, 2009. Re-printed with permission by the author.

Images:  www.roadtransport.com and farm1.static.flickr.com

Third Circuit Sends Wake Up Call to Employers About Discriminatory Hiring Practices

Thursday, April 30th, 2009

In the spirit of National Equal Pay Day on Tuesday, I wanted to share the important gender discrimination case of Donlin v. Phillips Lighting North America Corp. decided by the Third Circuit last week.

Here’s what happened in the case.

Colleen Donlin was hired by Phillips as a temporary warehouse employee at its Mountaintop, Pennsylvania distributions center. Her job was to help prepare orders for shipment.

Like other temporary workers, Donlin applied for a permanent position. She was not hired and her eight month temporary assignment ended.

Donlin got two other jobs after she left Philips. At the first job, Donlin earned  $14.70 an hour, but it was a 32-mile commute.

She left that job and found a job closer to home at which she made $13.00 an an hour. Had she been hired by Philips, she would have earned $14.67 an hour as a base salary

Donlin learned that Phillips hired several men for the position she had applied for after it refused to hire her.  She filed a Title VII lawsuit for gender discrimination,  won the trial and was awarded damages.

In discrimination cases, the compensation which can be awarded by a judge or jury is designed to make victims whole and put them in the position they would have been in had they not been discriminated against.

A winning employee can recover “back pay” and “front pay.”

  • Back pay represents losses from the the time of the discrimination up to the time of trial.
  • Front pay represents the losses that the victim will experience in the future if he or she does not find a comparable position.

Based on the premise that Donlin would have worked for another 25 years, an advisory jury awarded Donlin:

  • $63,050 in back pay
  • 395,795 in front pay
  • for a total of $458,845

The award was based on the difference in pay and benefits between the $13.00 hour job she was holding at the time of trial and the $14.67 hour job she would have had at Phillips had she not been discriminated against when Phillips refused to hire her.

The judge modified the front-pay award by reducing it to account for 10 years of damages instead of 25, finding that a 25 year period was too speculative — so the total award was $164,850.

Phillips appealed and the decision came out last week. The issues decided are very important for both victims of discrimination and their lawyers.

Here are the highlights:

1. Front Pay:

Donlin was in her 30′s at the time of her employment with Phillips and 40 at the time of trial. The question presented was: was how far into the future can a younger employee like Donlin claim economic loss?

For those of us who represent individuals in employment cases, the issue has always been a hard one to deal with when it comes to a younger worker.  The reason is because past damages can be calculated with certainty, but future losses can not:

  • Is the person going to get another job?
  • If so when and for how much?
  • How do we know what someone will be doing 20 or 30 years from now?

When we represent someone in an age discrimination case, and the terminated employee is 55 for example,  it’s easy for us to project damages until age 65 or 70  (whatever the age is that the person was likely to retire).

It’s not speculative to assume that the person would have worked for another 10 or 15 years, and it’s not hard to calculate what he or she would have earned and what the total losses are.

It’s much more complicated when we represent a younger person.  Since the law does not allow “speculative” damages, it’s simply very difficult to predict how far into the future the court will allow us to project.

In this case, the  district court judge ruled that Donlin was entitled to receive damages for economic loss for 10 years into the future. The Court of Appeals affirmed the ruling :

We note that there will often be uncertainty concerning how long the front-pay period should be, and the evidence adduced at trial will rarely point to a singe, certain number of weeks, months , or years.  More likely, the evidence will support a range of reasonable front-pay periods.  Within this range, the district court should decide which award is most appropriate to make the claimant whole …

We find that the District Court did not abuse it’s discretion when it awarded Donlin front- pay for 10 years.

This means that we now we have a decision with a sound analysis for front -pay involving a relatively young employee from a high level court.  It’s a decision that other victims and their lawyers can rely on and it’s a decision that carries considerable weight. It’s very good news.

2. Mitigation

In an employment case, the employee  who has lost a job has a duty to mitigate — which means that she  (or he) must make reasonable efforts to minimize her loss of income. The precise language of the statute says

Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.

In other words:

  • a person who is claiming damages in an employment case has a duty to look for work
  • damages into the future end if an employee gets an equivalent job or better job

In this case, Donlin first got a job in which she earned $14.70 and hour.  The problem was that it was a 32 -mile commute. She worked at the job for two years, and then found a job closer to home at which she made $13.00 an an hour.

She would have received $14.67 an hour as a base salary had she been hired at Philips.

Phillips argued:

  • Donlin’s “voluntary transfer” to a lower-paying job was inconsistent with her “duty to mitigate”
  • Phillips should not have to make up the difference.

Donlin argued:

  • once you factor the cost of the commute
  • the the two jobs were substantially the same.

The Court of Appeals agreed with Donlin:

An employee need not seek employment which involves conditions that are substantially more onerous than [her] previous position…

It is well settled that a claimant has not failed to make a reasonable effort to mitigate damages when she refuses to accept employment that is an unreasonable distance from her residence.

[T]he job at Mission constituted a substantially equivalent opportunity as that available at Romark.  Donlin should not be penalized for accepting that opportunity.

Accordingly, the District Court’s finding that Donlin sufficiently mitigated her damages was not clearly erroneous …

Certainly our clients still have a duty  to mitigate and make a “reasonable effort” to find comparable work if they intend to claim damages in a lawsuit.  This decision does not change that fact.

But this decision certainly delivers great news since it clearly states that a person is not required take a job which places an onerous burden on him (or her)  in order the meet that obligation.

On many fronts,  this is a hugely helpful case on questions of damages in employment cases. While we deal with these problems every day, it’s certainly not every day that we get federal circuit court case law on these particular issues.

It’s also a wake up  to employers to be careful about their hiring practices.

The bottom line is that Donlin worked as a temp at a company for eight months. Because she was discriminated against when the company hired a man instead of her into a permanent position, she is now entitled to all of her past losses plus 10 years of damages into the future. That’s a big win.

Images: images.businessweek.com

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.

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