Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Ellen Simon’

Cancer Victim Fired For Disclosing Brain Tumor Has Claim For Disability Discrimination

Monday, June 13th, 2011

ellen simonA U.S. District Court in Texas ruled that a  Houston P.F.Chang’s restaurant may have violated the Americans with Disability Act when it fired one of its restaurant managers three days after he disclosed that he had a brain tumor.

On June 8, 2009 Jason Meinelt was diagnosed with a brain tumor. He told his boss, Michael Brown, the same day and also told him that he would probably have surgery in August and could be out for six to eight months.  Brown was supervised by Glenn Piner.  Bown told Piner immediately about Meinelt’s condition.

Two days later, Piner began an audit involving  employee clock-out time punches.

The next day, Meinelt was fired for improperly editing employees’ time records. Meinelt testified that he was “completely baffled” and “shocked” about the firing and that editing time was a common practice among all of the managers including the ones who preceded him.

P.F. Chang’s first argument, that Meinelt’s brain tumor was not a disability, was rejected by the Court. Under the ADA, a disability is a “physical or mental impairment that substantially limits one or more major life activities.”  The ADA was amended in 2008, and the amendments specifically included cancer in its definition of what may be considered a disability. As the Court noted,

Under ADAAA, “a major life activity includes the operation of a major bodily function, including but not limited to,… normal cell growth .. [and] brain .. functions. 42 U.S.C. s. 12102(2)(B). The disability test can be met by actually suffering an impairment that substantially limits a major life activity or “being regarded as having such impairment.”

Therefore, since Meinelt was terminated after the ADA Amendments Act of 2008 came into effect, he was covered under its “more expansive definition” of disability according to the Court. As to P.F. Chang’s contention that Meinelt was fired because of the time entries, the Court had this to say:

[T]here is undisputed evidence of the temporal coincidence of Meinelt revealing his medical condition and the employer’s decision to fire him. The record contains ample evidence supporting an inference that Piner’s belief that Meinelt had improperly edited time was not the reason he terminated Meinelt. Piner fired Meinelt only tree days after Brown told Piner about Meinelt’s tumor. ..(citations omitted)

Summary judgment on the ADA claim is denied.

This decision means that Meinelt has the opportunity to take his case to the jury but it has broader implications.  It’s another victory for cancer victims who have been discriminated against by their employers.

Before the ADA amendments, these types of cases were routinely thrown out by courts which narrowly interpreted the ADA and held that the employees with cancer were not disabled — and therefore not protected from disability discrimination. Those same arguments, raised by P.F. Chang’s in this case, failed and it’s about time. For another case on point  see here. For more about cancer discrimination and the workplace, see here. For the Meinelt opinion, see here.

This blog originally appeared on Employee Rights Post on June 10, 2011. Reprinted with Permission.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. Today, Ellen offers legal advice to individuals with legal problems surrounding employment rights, age/gender/race or disability discrimination, workplace retaliation and sexual harassment.

Employee Rights Short Takes: Wage Discrimination, Paternity Leave, Disability Discrimination And More

Wednesday, May 4th, 2011

ellen simonHere are a few employee rights Short Takes worth noting:

It’s A First: Major League Baseball Player Takes Paternity Leave

National Public Radio recently announced that Texas Ranger’s pitcher Colby Lewis became the first major league baseball player to take paternity leave. The new MLB collective bargaining agreement allows players 24 – 72 hours off due to the birth of a child so Lewis took advantage of it. Shortly after the news, NBC Sports reported that another player, Washington National’s shortstop Ian Desmond, was also preparing to take leave to be at his wife’s side during the birth of their first child. It comes as no surprise that some folks aren’t happy about the new rule. For more, read here.

New Rules For The Americans With Disabilities Act

New regulations were issued by the Equal Employment Opportunity Commission and will take effect May 24th. The new rules were mandated by the ADA Amendments Act of 2008 (“ADAAA”). The law made significant changes with respect to the interpretation of  the term “disability” under the Americans with Disabilities Act.

Before the amendments, many employees who were discriminated against were not protected because the courts narrowly construed “disability” and determined that they were not disabled. The change in the legislation, which is spelled out in the final regulations, makes it crystal clear that the term “disability” should be broadly construed to include coverage.  As legal commentator noted:

The message from Congress and the EEOC for business couldn’t be any clearer. Stop focusing on whether someone is disabled and focus on the potential discrimination and reasonable accommodation.

The new regulations also list certain impairments which will almost always be considered a disability including deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, and major depression. Employees with these disabilities were often excluded from coverage in cases interpreting the law before the ADA amendments. In other words, thousands of employees who had cancer, diabetes, epilepsy, etc. lost their discrimination cases because their employers argued, and the courts agreed, that they were not disabled under the ADA.

The bottom line is that thanks to the ADAA and the new regulations, ADA litigation will finally turn on whether the disabled employee was discriminated against – not whether he or she meets the definition of disabled under the Act. This is really good news and it’s about time. For more, read here.

Discrimination Lawsuit Raises Issue Of Who Is A Man

I ran across this very interesting story in the NY Times about a recently filed discrimination case and it’s worth talking about because it will make new law. The case is about  El’Jai Devoureau, who was born a female, but identified himself as a man his whole life. In 2006, after he began taking male hormones and had a sex change operation, he adopted a new name, and received a new birth certificate from the State of Georgia which identifies him a male. His driver’s license and social security records also identify him as a male. 

The legal problem for Devoureau came up when he began working part time as a urine monitor at Urban Treatment Associates in Camden.  His job was to make sure that people recovering from addiction did not substitute someone else’s urine for their own during regular drug testing. On Devoureau’s second day, his boss confronted him stating that she had heard he was transgender. She asked if he had any surgeries. He refused to answer, stating that was private, and was fired.

Devoureau sued claiming discrimination. Michael D. Silverman, executive director of the Transgender Legal Defense and Education Fund said it was the first employment case in the country to take on the question of a transgender person’s sex.

New Jersey is one of 12 states that ban discrimination based on transgender status.  The federal Employment Non-Discrimination Act (ENDA), which would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity nationwide was reintroduced in Congress in April.

In its defense, Urban Treatment claims that the firing was legitimate since the sex of the employee in this particular position is a bona fide occupational qualification (“BFOQ”), an exception to employment discrimination laws which permits an employer to give preference to one group over another in narrow circumstances.  (for more about the BFOQ exception, see here)

This groundbreaking case will certainly be an interesting one to follow.

Fair Pay Act And Paycheck Fairness Act Reintroduced On Equal Pay Day

Data from the U.S. Census Bureau in 2009 shows that women who worked full time earned, on average, only 77 cents for every dollar men earned. The figures are even worse for women of color. African American women only earned approximately 62 cents and Latinas only 53 cents for each dollar earned by a white male.

Accordingly, Senator Tom Harkin most appropriately chose April 12, 2011 — Equal Pay Day — to reintroduce the Fair Pay Act of 2011. Harkin has introduced this bill every congress since 1996. The bill would require employers to provide equal pay for jobs that are equivalent in skills, effort, responsibility and working conditions. It would also require companies to disclose their pay scales and rates for all job categories.

Under current law a women who believes she is the victim of pay discrimination must file a lawsuit and go through what is almost always a long drawn out legal discovery process to find out whether she makes less than the man working beside her.

Many will recall that it took Lilly Ledbetter nearly 20 years before she discovered she was being paid less than men doing the same job which prompted her to file a lawsuit.  After the U.S. Supreme Court ruled against her in 2007 — because it held that the case was filed too late — Congress passed the Lilly Ledbetter Fair Pay Act which helps level the playing field for victims of wage discrimination. The bill was signed in 2009 by President Obama – but it didn’t go far enough.

Harkin was also an original co-sponsor of the Paycheck Fairness Act which passed the House during the 111th Congress but was filibustered in the Senate. The Paycheck Fairness Act would close loopholes in the enforcement of the current equal pay laws, prohibit retaliation against workers for sharing salary information with co-workers, and strengthen penalties against employers for violations of equal pay laws.

The Paycheck Fairness Act was reintroduced on Equal Pay Day by Senator Kristin Gillibrand and Senator Barbara Mikulski. For more about it, read here.

It’s both disheartening and disturbing that women still must fight this hard for laws intended to effectively prevent wage discrimination which remains rampant in the workplace today.  For more, read here.

images: blogs.orlandosentinel.com image.spreadshirt.com www.glbtq.comf

This blog originally appeared in Employee Rights Post on May 2, 2011. 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.

Employee Rights Short Takes: Scalia's Impartiality Questioned, Two Punitive Damage Awards, Disability Discrimination And More

Wednesday, January 19th, 2011

Here are a few employee rights Short Takes worth noting:

Scalia Says Due Process Clause Does Not Prohibit Sex Discrimination

For those who may have missed it, Justice Antonin Scalia recently expressed his view that neither women nor gays are protected against discrimination under the 14th amendment of the Constitution. The statement was made in an interview this month published in the California Lawyer.

While it’s newsworthy because of the shock value alone, Scalia has expressed this view before. All one has to do is read the 1996 decision of  United States v. Virginia, in which Scalia was the only justice to dissent from the Supreme Court’s decision to end the Virginia Military Institute’s 157 year old state supported practice of only accepting male students.

Not surprisingly, Scalia’s recent remarks angered liberals and was criticized by many legal scholars. Marcia Greenberger, founder and co-President of the Women’s Law Center, as reported in the Huffington Post, called  Scalia’s comments “shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection.”

Scalia’s comments stem from his view that the 14th amendment , when written, was not intended to ban sex discrimination. As to Scalia’s originalist view, Eric Segall, a professor at Georgia State College of Law, had this to say in his letter to the editor published in the New York Times:

On issues of affirmative action, gender rights, gun control and campaign finance reform, among most other controversial constitutional law questions, Justice Scalia does not truly use an originalist methodology. Much more of his judicial style can be gleaned from looking at the Republican Party Platform than at the drafters of either the original Constitution or the 14th amendment.

For Justice Scalia, it is about results, not process, no matter how much he protests otherwise.

In the same vein, Scalia also also made news with the announcement of his role as a featured speaker at  Michele Bachmann’s tea party / “Constitutional Conservative Caucus” later this month. For more about questions raised regarding Justice Scalia’s impartiality, read Nan Aaron here.

EEOC Settles Disability Discrimination Case For 3.2 Million

Jewel –Osco’s parent company Supervalu  Inc. has agreed to pay $3.2 million to settle a federal lawsuit claiming that the company discriminated against its disabled employees.

The suit, filed by the EEOC, alleged that Jewel-Osco fired employees with disabilities at the end of their leaves rather than bringing them back to work with reasonable accommodations.

According to the EEOC, roughly 1000 employees at Jewel-Osco stores were fired under this policy. One employee who will benefit from the settlement is Rosemary Bednarek who is representative of the class.

Bednarek injured her back lifting boxes of chicken at a Jewel-Osco store in 2004. When she was able to return to work, her doctor advised that she should not lift more than 20 pounds but the company would not accommodate the restriction. Bednarek re-injured her back and was fired a year later.

This is a great settlement that will not only benefit the plaintiffs in the case, but also serve to remind employers of their obligations under the Americans with Disabilities Act (ADA) to accommodate employees with disabilities — including those who are injured on the job.

Two New Decisions On Punitive Damages

We do not often see employment law decisions in which punitive damages are addressed, so to see two in the last few weeks is worth talking about.

Generally speaking, punitive damages are available in some cases in which the defendant engaged in a deliberate or reckless disregard of the rights of others.

The jury, in determining the amount of the punitive damage award, is permitted to consider a number of factors, including a sum of money that would discourage the defendant from engaging in the conduct in the future as well as the income and assets of the defendant. Some large punitive damage awards are challenged on grounds that they violate the Due Process Clause of the Fourteenth Amendment of the Constitution.

Here’s a brief synopsis of the cases:

Hamlin v Hampton Lumbar Mills, Inc.:  Plaintiff Ken Hamlin was injured while working at the Hampton Lumbar Mills. When he was released to return to work, the defendant falsely asserting that he was a “safety risk” and refused to to reinstate him as required by Oregon law.

The case went to trial and the jury awarded lost wages of $6000 and punitive damages in the amount of $175, 000. On appeal, the Court of Appeals held that the punitive damage award was “grossly excessive” under the Due Process Clause of the United States Constitution and reduced it to a sum equivalent to four times the amount of the compensatory damages.

In an instructive review of the case law on punitive damages, the Oregon Supreme Court reversed holding that a punitive damage award may exceed a single digit multiplier of a compensatory damage award without violating due process or being “grossly excessive.”

The case is an excellent reference point for anyone briefing an argument for punitive damages in an employment case.

Claus v. Intrigue Hotel, LLC:  In this age discrimination case, the jury awarded $50,000 in actual damages and $150,000 in punitive damages in a bifurcated trial. The defendant appealed. The Court of Appeals affirmed the verdict in a decision issued late last month.

In brief, Glenda Claus worked for Intrigue Hotels (including its predecessor) since 1984. Her last position was housekeeping supervisor. In 2007, Claus was fired and replaced by a 31 year old employee.

Claus, 63 at the time, testified that she was completely blindsided by the news of her termination. With a record of positive job performance evaluations, a failure to admonish Claus regarding job deficiencies, and replacement with a 31 year old employee with performance issues, the Court of Appeals held that the jury could have rejected Intrigue’s after the fact rationale that Claus was fired for poor performance.

In addition, there was evidence that her new supervisor (Galaviz ) stated he wanted employees who would be at the hotel for the “long haul” and that Claus was “resistant to change.” The Court held that the jury could have reasonably taken these statements to mean that Galaviz did not want older employees and that Claus’s age was a factor in her firing.

The evidence also showed that Galaviz had been engaged as a human resources consultant and had an extensive knowledge of employment law at the time he made these comments and fired Galaviz.

Worth noting is the Court’s statement that the same evidence which supported Claus’s substantive claim for age discrimination also supported her claim for punitive damages  As the Court pointed out,  both Copidas (the owner of the hotel) and Galaviz:

  • knew it was against the law to fire an employee because of age
  • fired a 63 year old employee with a spotless record
  • replaced her with a 31 year old with documented performance problems
  • promoted several younger employees with performance issues
  • altered its rationale for firing Claus several times and created pretextual reasons for firing her

In sum, the Court concluded that the jury’s award of punitive damages was supported by the evidence. The case was remanded to the trial court for an award of reasonable attorney’s fees and costs — a great victory for Claus and her lawyer.

This case is a good example of the kind of evidence which supports a claim for age discrimination as well as a claim for punitive damages. As stated above, since we don’t often see decisions affirming a punitive damage award, these cases are worth noting.

This article was originally posted on Employee Rights Post.

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.

Employee Rights Short Takes: Race Discrimination, 5.8 Milllion Dollar Verdict, Breach of Contract Damages And More

Friday, December 24th, 2010

ellen simonHere are a few short takes about some employment cases worth noting this month:

EEOC Files Lawsuit Against Kaplan Higher Education Corp. Claiming Race Discrimination

The EEOC announced last week that it filed a class action race discrimination case against Kaplan Higher Education Corp. The suit alleges that since at least 2008, Kaplan rejected applicants based on their credit history and that this practice has an unlawful discriminatory impact because of race. The EEOC further claims that the practice is neither job-related nor justified by business necessity and therefore violates Title VII of the Civil Rights Act of 1964.

These kinds of discrimination lawsuits are known as “disparate impact” cases and are often the legal foundation upon which class action discrimination cases are premised. The claim arises when an employer’s practice or policy, though neutral on its face, has a disparate impact on a group which is protected under one or more of  the civil rights statutes. For more about disparate impact cases, see here.

There has been much discussion about the use of credit history as a prerequisite for hiring and its disparate impact on minorities though we haven’t seen many lawsuits challenging the practice.

It will be interesting to follow this litigation and see how Kaplan justifies its policy to check credit history as a job related business necessity. The outcome of this litigation could have a significant impact on future higher practices nationwide. For more about the case, read the NY Times article here.

El Paso Employee Wins 5.8 Million Dollar Discrimination Verdict

An El Paso, Texas jury awarded Mark Duncan, a white benefits supervisor, 5.8 million dollars in a discrimination case against his former employer, El Paso Electric.

According to the El Paso Times, Duncan worked for El Paso Electric for six years and had a good employment history with no record of discipline. He was fired in December of 2007 after his life was threatened during an altercation with a company human resources manager.

Even though Duncan was cleared of any wrongdoing the company fired him along with the human resource manager.

Duncan claimed he was fired because the company feared a lawsuit from the Hispanic human resource manager and that it got rid of him (“the white guy”) to create a defense.

The jury agreed with Duncan and awarded him $129,913 in past lost wages; $699,196 in future lost earnings; $5000 in compensatory damages; and 5 million in punitive damages. El Paso Electric plans to file motions to set aside and reduce the verdict according to newspaper reports.

It certainly looks like whoever made the decision to fire Duncan either forgot or didn’t know that white employees can be victims of race discrimination too.

Two Decisions Worth Noting

In Helpin v.Trustees of the University of Pennsylvania, the Supreme Court of Pennsylvania addressed an issue of damages which can be very helpful to other employees down the road.

Mark Helpin, a dentist and professor, won a lawsuit for breach of contract against the University of Pennsylvania and an award of over four million dollars.

Helpin claimed that he was constructively discharged without “just cause” in violation of his contract and that Penn had improperly failed to continue to pay him 50% of the Children’s Hospital of Philadelphia dental clinic profits to which he was entitled. In a great discussion of future earnings, lost business profits, and the propriety of the “total offset approach” to the calculation of those damages, the Supreme Court of Pennsylvania affirmed the award.

Under the total offset approach, it is assumed that the effect of the future inflation rate will completely offset the interest rate, thereby eliminating the need to discount an award to present value. It has been adopted by some, but not most courts, but I expect so see more of its application in opinions to come.

For anyone involved in a case with a large future damages component, this opinion is both interesting and important and one worth sharing with any expert economists prior to his or her testimony.

In Quinlan v. Curtisss-Wright Corp. the New Jersey Supreme Court issued an extremely important and helpful decision which addresses the situation in which an employee takes company documents which bolster his or her  discrimination claim.

Joyce Quinlan was the Executive Director of Human Resources for Curtiss-Wright. She filed a lawsuit claiming that she was passed over for a promotion because of gender discrimination.

Quinlan copied files — over 1800 documents — which supported her claim and gave them to her lawyers.

The company found out during discovery in her pending case  that she copied the documents and and fired her (although it did not fire her right away). It claimed that she stole company property in violation of the company’s code of conduct and therefore the discharge was justified.

Quinlian amended her lawsuit to add a retaliation claim. The case was tried and the jury awarded her more that 5.4 million dollars in compensatory damages and over 4.5 million dollars in punitive damages.

The case went to New Jersey Supreme Court which ruled in her favor this month. It upheld the trial court’s determination that Quinlan’s copying and retaining the company’s documents was not “protected conduct” and affirmed the jury’s finding that her firing was retaliatory.

In line with several federal court decisions, it adopted a “flexible totality of the circumstances approach” which sets forth seven factors to be considered in determining whether an employee is permitted to take and use documents belonging to his or her employer.

While this is a very good decision for employees, those who feel their employment rights may have been violated still need to be very cautious about taking company documents in violation of a company policy, even if the documents bolster their claims.  The law is tricky and changing, and it’s  best to seek counsel and get advice before it’s too late.

Both of these cases represent significant victories for the the plaintiffs and their lawyers.

This article was originally posted on Employee Rights Post.

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 A Long Road To Justice

Tuesday, December 7th, 2010

ellen simonFederal Employee Wins Appeal On Sex And Age Discrimination Claim

Lawyers representing employees in discrimination cases are forever frustrated by federal district court judges whom routinely grant summary judgment to employers instead of allowing cases to proceed to trial for a jury determination.

This recent case of Bartlett v.Gates, in which the Sixth Circuit Court of Appeals reversed the lower court’s summary judgment ruling, is a perfect example of what we potentially face on every case no matter what kind of evidence has been produced.

What Happened In The Case

Barry Bartlett worked for the United States Department of Defense at the Defense Contract Management Agency (DCMA). In September of 2005, he applied for a promotion to GS-12 contracting officer.   At the time of his application, Bartlett was 58 years old and had 34 years of experience as a GS-11 contract administrator. In addition, Bartlett’s resume showed:

  • a record of military service
  • a bachelor’s degree in history
  • completed graduate course work in business administration, accounting and law

Bartlett was deemed qualified at the initial screening stage and his name was forwarded to Kathleen Lehman, the selecting official for the promotion.

Another long term employee, Marvin Greenberg, also applied for the position. Greenberg was 63 years old at the time of his application. His resume showed:

  • a bachelor’s and doctoral degrees
  • authorship of a length book and numerous scholarly publications
  • a 27 year tenure at DCMA

In October of 2005, without conducting any interviews, Lehman chose Angela Lucas for the promotion. Lucas, another internal candidate, was 39 years old at the time and did not have a college degree.

Bartlett claimed that between 2003 and 2005, employees who were 55 years or older received only one DCMA promotion, despite making up 36% of the agency’s workforce. He also claimed that female employees were promoted in a series of personnel decisions that involved the manipulation of agency procedures.

Bartlett decided to challenge the decision. In February of 2007, after exhausting his administrative remedies, he filed a lawsuit against the DCMA claiming that he was discriminated against because of his age and sex in violation of the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act of 1964.

The Defendant filed a motion for summary judgment which was referred to a magistrate for a report and recommendation. In October of 2008, the magistrate issued a report which found that Bartlett established a prima facie case of discrimination under Title VII, but the DCMA provided a non-discriminatory reason for its promotion decision and Plaintiff failed to rebut it by showing pretext.

The federal district court judge adopted the recommendation and granted Defendant’s motion for summary judgment against Bartlett. He appealed.

The Sixth Circuit Reverses

Burden of Proof Under The Title VII  And The ADEA

Under McDonnell Douglas, a plaintiff may establish a prima facie case of discrimination in a failure to promote case when he:

  • is a member of a protected class
  • objectively qualified for the position
  • considered for but is denied the promotion
  • an individual outside of plaintiff’s protected class is selected for the position

Once the plaintiff presents a prima facie case of discrimination, the burden shifts to the employer to articulate a nondiscriminatory reason for its action. In order to overcome summary judgment, the plaintiff must produce evidence which can rebut the employer’s explanation demonstrating pretext – which means “only enough evidence … to rebut, but not to disprove, the defendant’s proffered rationale.”

A plaintiff can prove pretext with evidence that the employer’s stated reason for its adverse business action either

  • has no basis in fact
  • was not the actual reason, or
  • is insufficient to explain the employer’s action

It’s worth noting that the Sixth Circuit in this decision joined a number of other circuits in holding that age discrimination claims — post Gross -- should continue to be analyzed under McDonnell Douglas.

The Court’s Analysis Of The Evidence

Since the Defendant conceded that Bartlett established a prima facie case of discrimination the appeal turned on Defendant’s explanation for its decision, and whether Bartlett presented sufficient evidence of pretext to rebut it.

As to its reason, Defendant claimed that Angela Lucas was the best qualified candidate based on the written submissions of the applicants and Lehman’s personal knowledge of their background, performance, work product, and communication abilities.

It further claimed that Lucas was highly motivated, very experienced and a strong communicator who had earned performance awards and commendations of her peers.

Bartlett, it claimed in contrast, was an average employee who lacked a sufficient background in contract negotiations as well as a strong writing ability.

Bartlett offered several grounds of support for his argument for that Defendant’s reasons were pretextual.

Relative Qualifications

As the Court noted, the relative qualifications of applicants as well as discriminatory remarks may establish pretext in a failure to promote case.

In this case, the Court pointed to:

  • Bartlett’s 24 years of experience as a contract administrator: Lucas had 8
  • Bartlett’s superior educational credentials including a bachelor’s degree and advanced course work: Lucas did not graduate from college
  • Bartlett’s communication skills, as well as those of Greenberg, which were satisfactory if not superior to Lucas’s as evidenced by favorable performance reviews, education credentials, and scholarly publications and familiarity in the area of contract negotiations.

The Court stated:

Construing the fact in the light most favorable to the Plaintiff, we find that while Plaintiff may not have been a “plainly superior candidate” that rendered a DCMA’s promotion decision unreasonable on its face …Plaintiff was as qualified if not more qualified than Lucas.

Although this finding does not conclusively establish pretext, it warrants denial of summary judgment where other probative evidence of discrimination is presented.

Discriminatory Remarks

As the Court noted, discriminatory remarks may constitute direct evidence of discrimination and also serve as evidence of pretext.

In this case, Bartlett presented evidence that his supervisor, Gail Lewin, and the selecting official Kathleen Lehman:

  • informed him that 34 years on the job was enough
  • joked about whether he had taken up “antiquing or traveling or something like that”
  • suggested that he should retire – a topic which Bartlett had neither broached nor considered

The Court stated:

Because these statements were made by DCMA decisionmakers just weeks before the promotion decision and because the ostensible motivation of the comments was to hasten Plaintiff’s departure from the agency, these remarks provide strong ‘probative evidence of pretext.’

Furthermore, when coupled with record evidence that Plaintiff was as qualified if not more qualified that the selectee, these statements created triable issues of fact on the question of pretext.

Defendant’s Explanation Was Not Believable

In addition, the Court held that Bartlett had presented evidence of pretext because the reason given for its failure to promote him was not credible.

As the Court noted, Lehman testified that she made the decision that Lucas was the best qualified candidate without conducting interviews because she was familiar with the applicants experience, backgrounds, and competency. However, when asked, Lehman was unable to answer basic questions about the candidates’ qualifications.

The Court noted:

The fact that Lehman was unable to describe the candidates’ credentials creates a triable issue of fact as to the actual basis for Defendant’s promotion decision, suggesting it was pretext for discrimination based on sex and age.

In sum, the Court concluded that Bartlett presented sufficient evidence to suggest that DCMA’s proffered explanation for its promotion decision was pretextual, and had no basis in fact. Accordingly, DCMA was not entitled to summary judgment.

The case was reversed and remanded for trial.

Take Away

This case is a good example of something that’s often wrong with many federal court decisions when it comes to employment discrimination cases.

When reviewing summary judgment motions, trial court judges are, according to the Supreme Court “required to view all facts and draw all inferences in favor of the nonmoving party.” In employment discrimination cases, the nonmoving party is almost always the plaintiff employee.

It’s no secret to plaintiffs’ employment lawyers that, for some reason, many trial court judges fail to abide by this requirement in case after case and instead seem to draw all inferences in favor the employer.

The result of what appears to be this employer oriented approach in discrimination cases, or as some call it  — a hostility on the federal bench to employment cases —is a clogging of the docket with summary judgment motions and appeals, as well as considerable delay and expense to both sides.

It also encourages management side lawyers to file summary judgment motions in every case no matter what record of evidence has been established by the plaintiff because they just might win – and just might get affirmed or the employee might just get worn down and give up.

Mr. Bartlett filed his lawsuit in 2007. The events giving rise to claim occurred in 2005. While it’s a great victory to have won the reversal in the Court of Appeals, let’s not forget that it’s almost 2011 – and that all he has won thus far is his right to get a trial and have his case decided by a jury.

The reality is that if someone chooses to litigate an employment discrimination case, it’s virtually certain that it’s going to be a long road to justice.

This article was originally posted on Employee Rights Post.

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.

Employee Rights Short Takes: Supreme Court Hears Equal Protection Case, Firing For Facebook Posts May Be Illegal & More

Tuesday, November 23rd, 2010

ellen simon

Texas Doctor To Collect Over 10 Million On Defamation/Breach of Contract Case

The Supreme Court of Texas cleared the way for Dr. Neal Fisher, a Dallas physician, to collect his 9.8 million dollar verdict against Pinnacle Anesthesia Consultants – an anesthesia group of which he was a shareholder and founding member.

Fisher sued Pinnacle for defamation and breach of contract when Pinnacle falsely accused him of alcohol and drug abuse after he raised concerns about an increasing volume of patient complaints and questionable billing practices. In 2007, a Dallas jury unanimously rendered a verdict in his favor. Last year the court of appeals upheld the verdict.

This month, the Supreme Court of Texas issued an order declining to hear the case which means that the verdict stands. With pre and post judgment interest, it is reported that Pinnacle will have to pay Dr. Fisher somewhere in the vicinity of $10.8 million dollars. Fisher has been recognized as one of the top five anesthesiologists in the state of Texas. For more about the case, read here.

EEOC Issues GINA Regulations

The Equal Employment Opportunity Commission issued final regulations this month for purposes of implementation of the Genetic Information Non Discrimination Act of 2008 (GINA). Under GINA, it is illegal to discriminate against employees or applicants for employment because of genetic information. According to the Equal Employment Opportunity Commission:

GINA was enacted, in large part, in recognition of developments in the field of genetics, the decoding of the human genome, and advances in the field of genomic medicine. Genetic tests now exist that can inform individuals whether they may be at risk for developing a specific disease or disorder. But just as the number of genetic tests increase, so do the concerns of the general public about whether they may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information.

Congress enacted GINA to address these concerns….

The final GINA rules published by the EEOC on November 9, 2010 prohibits the use of genetic information or family medical history in any aspect of employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits employers from disclosing genetic information. Family medical history is covered under the Act since it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. The Act also prohibits harassment or retaliation because of an individual’s genetic information. For more about  the new rules and how to lawfully comply with them read here.

Firing for Facebook Posts About Work May Be Illegal

A Connecticut woman who was fired after posting disparaging remarks about her boss on Facebook has prompted the National Labor Board to prosecute a complaint against her employer – and this is big news. As noted by Steven Greenhouse in the NY Times:

This is the first case in which the labor board has stepped in to argue that workers’ criticism of their bosses or companies on a social networking site are generally protected activity  and that employers would be violating the law by punishing workers for such statements.

Dawnmarie Souza, an emergency medical technician was fired late last year after she criticized her boss on her personal Facebook page. The Harford, Connecticut office of the NLRB announced on October 27th that it plans to prosecute a complaint against her employer, American Medical Response of Connecticut as a result of its investigation.

The NLRB determined that the Facebook postings constituted “protected concerted activity” and that the employer’s internet policy was overly restrictive to the extent that it precluded employees from making disparaging remarks when discussing the company or its supervisors.

It is not unusual for companies to have comparable policies in place as they attempt to deal with  lawful restriction of social networking by their workforce and that’s why this news made a huge impact in the employment law world this month.

Section 7 of the National Labor Relations Act (NLRA) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms or conditions of their workplace. The NLRB has long held that Section 7 was violated if an employer’s conduct would “reasonably tend to chill employees” in exercising their NLRB rights and that’s what prompted the complaint.

You can bet that both employers and employees will be keeping a careful watch for the decision  which is expected some time after the hearing before  an administrative law judge currently scheduled for January 15, 2011. For more about it, read here.

Supreme Court Hears Case Claiming Unconstitutional Gender Bias In Citizenship Law

The Supreme Court heard arguments in Flores-Villar v. U.S. this month, a case which challenges the constitutionality of a law that makes it easier for a child of unwanted parents to obtain citizenship if the mother is a U.S. citizen rather than the father.

Ruben Flores-Villar was born in Mexico but grew up in California. He was convicted of importing marijuana, was deported, and illegally reentered the country. In 2006, immigration authorities brought criminal charges against him. At that time, Flores-Villar sought citizenship, claiming his father was a U.S. citizen. The request was denied by immigration authorities because of  a law requiring that a citizen father live in the United States for at least five years before a child is born in order for the child to obtain citizenship. Mothers need only to have lived in the county for one year for the child to obtain citizenship.

Flores-Villar claimed a violation of the equal protection clause of the Fifth Amendment claiming that the Act discriminated on the basis of gender. The Ninth Circuit Court of Appeals found against him and held that the law’s disparate treatment of fathers was not unconstitutional. The last time the Court considered the issue of gender differences in citizenship qualification was the case of Nguyen v. INS in which the Court upheld a law creating a gender differential for determining parentage for purposes of citizenship. Flores-Villar’s attorney argued that Nguyen was distinguishable because it was based on biological differences whereas this case was based on antiquated notions of gender roles.

There is no doubt that this will be an interesting and important decision from the Supreme Court. For more about the case, including the Supreme Court filings, read here.

This article was originally posted on Employee Rights Post.

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.

Employee Rights Short Takes: GOP Private Club Sued For Race Discrimination, Latino Discrimination On The Rise And More

Wednesday, November 3rd, 2010

It’s a political week, so here are a few short takes – admittedly- with a political twist::

GOP Social Club Sued For Racial Discrimination

The National Republican Club of Capitol Hill, an exclusive club known to be the place where the DC Republican “backroom deals” get made, is being sued for raImage: Republicance discrimination by its former human resource manager. The plaintiff, Kim Crawford,  alleges that she was repeatedly passed over for raises while “less qualified, less deserving male and white counterparts were given” increases.

Crawford also claims she was fired in July after investigating a racial complaint from the club’s acting executive chef. Race discrimination in employment and retaliation are prohibited by Title VII of the Civil Rights Act of 1964. For more about it read here.

Being A Liberal And Hating Sarah Palin May Be Genetic

I must say this story caught my eye – particularly since we have three generations of Sarah Palin bashers in my immediate family. A new study in the Journal of Politics, as reported in Time,  says that there’s a biological explanation why some people favor big government, oppose the death penalty and can’t stand Sarah Palin – and it’s called the liberal gene.

The DRD4-7R gene affecting the neurotransmitter dopamine has already been linked to a personality type driven to seek out new experiences. Researchers from the University of California, San Diego and Harvard University hypothesized that this predisposition might affect political beliefs.

The researches suspect that the D4 novelty seekers would have more exposure to a wider variety of lifestyles, a wider circle of friends and more exposure to broader  views, attitudes and beliefs. Apparently, all of this does have an effect on D4 inidviduals’ political views and the new study bears out their hypothesis  —  those born with the D4 gene are more liberal. It’s all quite interesting. I wonder if we’re going to hear about a conservative gene too?

More Latinos Concerned About Discrimination

Nearly two thirds of Latinos in the United States think that discrimination against Hispanics is a “major problem” according to a new study from the Pew Hispanic Center. There are 47 million Latinos in the US, which make up 15% of the population and constitute the nation’s largest minority group. According to the study:

Asked to state the most important factor leading to discrimination, a plurality of 36% now cite immigration status, up from a minority of 23% who said the same in 2007. Back then, a plurality of respondents-46%-identified language skills as the biggest cause of discrimination against Hispanics.

The Pew study was released days before the mid-term elections in which the Latino vote is expected to play an important role, particularly in the Florida gubernatorial race and Nevada Senate contest between Senate Majority leader Harry Reid and Tea Party Republican Sharon Angle. Anlge has been sharply criticized for ads run in recent weeks which portray Latinos as menacing interlopers. 17% of voters in Nevada are Latinos who are expected to vote in high numbers this Tuesday.

images: ktnv.images.worldnow rlv.zcache.com politicalmuse.com

This article was originally posted on Employee Rights Blog.

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.

Employee Rights Short Takes: New Evidence Of Gender Pay Gap, Race Discrimination, Disability Discrimination And More

Friday, October 1st, 2010

ellen simonHere are a few short takes about employment discrimination stories that made the news this past week:

New Evidence Of Gender Pay Gap And Discrimination Against Mothers In Management

Women made little progress in climbing into management positions according to a new report by the Government Accountability Office yesterday.

As of 2007, the last year for which the data was available, women made up only 40% of managers in the United States work force compared to 39% in 2000. In all but 13 industries covered by the report, women had a significantly smaller share of management positions than men when compared to the overall workforce.

In addition, managers who were mothers earned 79 cents of every dollar paid to managers who were fathers.

The report was prepared at the request of Representative Carolyn Maloney, Democrat of New York, and chairwoman of the Joint Economic Committee for a hearing before that committee on Tuesday — where witnesses  talked about the  “shockingly slow rate of progress” for women in corporate management positions and the “motherhood wage penalty.”

Several individuals who testified urged the passage of the Paycheck Fairness Act as a partial remedy to the issues surrounding gender discrimination in the workforce.

For more about the report read the NY Times article here. For a copy of the report from Rep. Maloney’s website and more about the hearing read and watch here.

Employee With Multiple Sclerosis Settles Discrimination Case For $1.2 Million

An ex-employee of the Madison New Jersey Board of Education with multiple sclerosis settled her disability discrimination case for $1,200,000, including attorney fees, as reported yesterday by DailyRecord.com and Lawyers USA. Disability discrimination is prohibited by the Americans with Disabilities Act.

Joan Briel, a former accounts payable secretary, was diagnosed with MS in 2002. She claimed that her employer retaliated against her by inappropriately increasing her workload, repeatedly harassing her and failing to take action on her requests for reasonable accommodation — including her request to work on the first floor instead of the third floor.

Briel also claimed that the stress of the work environment caused her to relapse and that she was fired while she was on medical leave.

The case was heading for a jury trial when the settlement was reached. Ms. Briel will receive $412,000 in the settlement. Her attorneys will receive $877,303 for the work they did on the case. The court also awarded Briel over $43,000 in costs.

Plaintiffs in civil rights cases may recover attorneys’ fees – if they prevail — in addition to their individual award in most cases. These legal provisions are intended to encourage attorneys to represent individuals who are unable to invoke the protection of civil rights laws because they can not afford a lawyer.

Discrimination cases are difficult to litigate and are often complex and protracted. Therefore, it’s not unusual for the attorneys’ fees ( on both sides) to be larger than the award, or greater than the amount in controversy.

This newly reported case is but one example of the potentially high costs to employers when employment discrimination cases are not resolved early.

EEOC Settles Race Discrimination And Retaliation Case For $400,000

The Cleveland office of the EEOC announced a $400,000 settlement of a class action race discrimination and retaliation case against Mineral Met Inc., a division of Chemalloy Company.

Evidence in the case showed that black employees were disciplined for trivial matters – such as having facial hair or using a cell phone — while white employees were not disciplined for the same conduct. When one of the supervisors complained, it resulted in intensified racially discriminatory treatment and retaliation according to the EEOC.

The EEOC also charged that African-American employees were also subjected to other forms of racial harassment, including evidence that a white supervisor placed a hangman’s noose on a piece of machinery. (once again shocking that this is still going on)

Race discrimination in employment and retaliation for complaining about discrimination violate Title VII of the Civil Rights Act of 1964.

This article was originally posted on Employee Rights Blog.

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.

Tenth Circuit Decides Important Age Discrimination Case

Wednesday, September 22nd, 2010

ellen simonA Boot To Pretext Plus, A Favorable Interpretation Of Gross, And More Age Discrimination Gems From The Tenth Circuit

For anyone interested in representing employees in age discrimination cases, the recent case of Jones v. Oklahoma City Public Schools from the Tenth Circuit Court of Appeals is a must read.

The case is loaded with great stuff including a helpful reading of the Gross case, an affirmation of the use of the McDonnell Douglas burden shifting framework in ADEA cases, a pro-employee interpretation of adverse action and a much needed kick in the pants to pretext plus which was resurrected from the dead by the district court.

What Happened In The Case

Judy Jones began working as a teacher for the Oklahoma City Public Schools (“OKC”) in 1969. She then served as an elementary school teacher for approximately fifteen years. In 2002, Jones was promoted to the position of Executive Director of Curriculum and Instruction.

In 2007, a new superintendant decided to reorganize OKC’s executive team. In particular he decided that Jones’ position could be eliminated and that her duties would be absorbed by other directors.

Jones was reassigned as an elementary school principal. At first she retained her previous salary level though her vacation benefits were affected immediately.

After Jones completed her first year as principal, her salary was decreased by approximately $17,000. The pay cut  reduced her retirement benefits and her daily pay rate was also reduced.

One month after Jones’ reassignment, the superintendant decided to create a new Executive Director of Teaching and Learning position. The job description and responsibilities for this new position were virtually identical to those of Jones’ former position of Executive Director of Curriculum and Instruction.  The new position was filled with an individual who was forty seven years old. Jones was nearly 60 at the time.

The evidence showed that funding for Jones’ position stayed on the books for the 2007-2008 fiscal year, and that her former staff continued to work in the department both before and after the position of Executive Director of Teaching and Learning was created.

In addition, several of her fellow OKC directors, including the interim superintendant, made age-related remarks to Jones regarding her retirement plans.

Jones filed suit in the District Court for the Western District of Oklahoma alleging that that OKC violated the Age Discrimination in Employment Act (ADEA) when it demoted her to the position of elementary school principal.

Quoting Reeves v. Sanderson Plumbing Products, Inc. the district court held that this was a case where the plaintiff established a prima facie case of age discrimination and set forth evidence to reject the defendant’s explanation for its decision, but “no rational factfinder could conclude that the action was discriminatory.”

Although the district court acknowledged that OKC leadership had made age-related comments, it faulted Jones for not providing any “additional evidence to show that age played a role in the reassignment decision.” Summary judgment was granted against Jones. She appealed.

The Tenth Circuit Court Of Appeals Reverses

Interpreting “But For” Causation Under Gross v. FBL Financial Services, Inc.

The first issue addressed by the Court involved an interpretation of the Supreme Court’s Gross v. FBL Financial Services, Inc. 2009 decision and it’s an important holding for anyone litigating a case under the ADEA.

The ADEA prohibits an employer from discriminating against an individual in employment “because of such individual’s age.” The statute, which does not define “because of”, was interpreted in the Gross decision to require “but for” causation.

OKC contended this required a plaintiff to prove that her employer was motivated solely by age discrimination when making an adverse decision. In other words, “but for” causation under the ADEA means that age must have been the only factor in the employer’s decision making process.

The Tenth Circuit rejected the argument. It stated:

The Tenth Circuit has long held that a plaintiff must prove but-for causation to hold an employer liable under the ADEA (citations omitted). Moreover, we have concluded that his causal standard does ‘not require [plaintiffs] to show that age was the sole motivating factor in the employment decision.’ (Citations omitted)

Instead, an employer may be held liable under the ADEA if other factors contributed to its taking an adverse action, as long as ‘age was the factor that made a difference.’ (citations omitted)

Gross does not hold otherwise … and does not place a heightened evidentiary requirement on ADEA plaintiffs to prove that age was the sole cause of the adverse employment action.

McDonnell Douglas Applies To the ADEA

Under the McDonnell Douglas framework of proving discrimination claims, a plaintiff may survive summary judgment by proving circumstantial rather than direct evidence of discrimination. To do that:

  • the plaintiff must first demonstrate a prima facie case of unlawful discrimination
  • if she succeeds at this first stage, the burden of production shifts to the employer to identify a legitimate, nondiscriminatory reason the adverse employment action
  • once the employer advances its reason, the burden shifts back to the employee to prove that the employer’s proffered reason was pretextual

Most circuits have long held that plaintiffs can use the McDonnell Douglas three step analysis to prove age discrimination. The problem is that Gross left open the question of whether the McDonnell Douglas framework was applicable to the ADEA.  The Court addressed the issue. It stated:

Although we recognize that Gross created some uncertainty regarding burden-shifting in the ADEA context, we conclude that it does not preclude our continued application of McDonnell Douglas to ADEA claims. .. While Phillips (citation omitted) is not precedential, we agree with its reasoning and join all of our sibling circuits that have addressed this issue. (citations omitted)

In sum, the Tenth Circuit joined the majority of other circuits, in holding that McDonnell Douglas applies to ADEA cases which permits proof of discrimination through a framework of inference and circumstantial evidence.

Jones Suffered An Adverse Action

In applying McDonnell Douglas to the case, Jones was required to prove that:

1) she was a member of the protected class

2) she suffered an adverse employment action

3) she was qualified for the position at issue and

4) she was treated less favorably than others not in the protected class

OKC did not dispute that Jones was protected by the ADEA, qualified for her former position, and that she was treated less favorably than others not in the protected class.

It contended that she did not suffer an adverse employment action because she remained in a job with similar responsibilities and a daily rate that was almost exactly the same as her per diem rate as a director. Therefore, according to the defense, she had no case.

The Court rejected this argument pointing to evidence of:

  • a $17,000 decrease in salary the following year after her reassignment
  • an immediate reduction of vacation benefits
  • a reduction of retirement benefits

The Court also noted:

Although OKC argues that Jones did not experience a demotion, she certainly lost professional prestige and fell to a lower position in the district’s hierarchy. Also, OKC’s argument that a five-dollar reduction in daily pay is not sufficient to constitute an adverse employment action is simply incorrect. All told, the record in this case conclusively shows that Jones suffered and adverse employment action and proved a prima facie case of age discrimination.

The District Court Erroneously Applied A “Pretext Plus” Standard

In discrimination cases which use the McDonell Douglas framework, once the employer advances its reason for the adverse employment action, the burden shifts back to the employee to prove that the employer’s proffered reason was pretextual – in other words, not believable or false.

As explained by the Court:

A plaintiff produces sufficient evidence of pretext when she shows such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that her employer did not act for the asserted non-discriminatory reasons.

There was a period of time in which some courts required plaintiffs using the McDonnell Douglas framework to show pretext plus produce additional evidence of discrimination in order to avoid summary judgment. In 2000, the Supreme Court squarely rejected the so called “pretext plus” standard in Reeves.

As the Court noted:

Reeves expressly held that ‘a plaintiff’s prima facie case [of discrimination] combined with sufficient evidence to the find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.’

No additional evidence is necessary because proof that the defendant’s explanation is unworthy of belief is simply one form of circumstantial evidence that is probative of intentional discrimination.

In this case, OKC proffered two reasons for Jones reassignment:

  • the superintendant’s reorganization of IKC’s executive team was done in a revenue ne-neutral fashion
  • the superintendant’s believed that Jones former position contained only narrow duties that could be absorbed by other directors

Jones produced evidence of pretext:

  • her former position stayed on the books for the 2007-2008 fiscal year
  • staff in her department stayed employed in the same positions after her transfer
  • a new position, with duties just like her former position, was created shortly after her transfer

She also produced evidence of discrimination which included age-related comments by three executive directors all involved in the reassignment decision.

The district court concluded that Jones had created only a weak issue of fact as to whether the employer’s reason for its decision was untrue and that there was abundant evidence that no discrimination had occurred.

The Court of Appeals reversed. It held that Jones’ evidence was sufficient to satisfy McDonnell Douglas’s third step and that the district court’s grant of summary judgment was improper.

According to the Court, the district court:

  • “improperly favored OKC’s version of the facts” when it was “required to view the facts in the light most favorable to Jones.”
  • refused to consider Jones evidence of discrimination which included age-related comments by three executive directors all involved the reassignment decision
  • erroneously applied “pretext plus.”

As the Court stated:

Rather than properly applying Reeves, the district court erroneously held Jones to the discredited pretext plus standard. The court faulted Jones for not presenting ‘additional evidence that age was a determining factor in her reassignment. But after showing that OKC’ s reasons for her transfer were pretextual, Jones was under no obligation to provide additional evidence of age discrimination. (citations omitted)  Accordingly, . . . we reverse the district court’s grant of summary judgment and REMAND for further proceedings.

Take Away

This case covers so much territory on the ever changing battlefield of age discrimination law. It should be very helpful to those facing arguments under Gross which suggest that plaintiffs in age discrimination cases should be held to a higher or different standard of proof than employees in other kinds of discrimination cases.

It gives a much needed reminder that an application of “pretext plus,” even when disguised in a different form, is reversible error.

The case also serves as an admonition to courts to refrain from the all too common practice of crediting an employer’s version of facts over an employee’s instead of  viewing the facts in the light most favorable to the employee opposing summary judgment.

Even though Reeves has been around for ten years, it seems that some just don’t get it, so thanks to the Tenth Circuit for this very cogent reminder.

This article was originally posted on Employee Rights Blog.

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.

Employee Rights Short Takes: Hostile Work Environment, GINA, FMLA And More

Thursday, June 3rd, 2010

Here are a few Short Takes worth sharing:

Sex Bias Case Ends With Huge Punitive Damages Award

The drug maker Novartis was hit with $250 million in punitive damages last week because of discrimination against thousands of female sales representatives. Issues involved discrimination in pay, promotion and pregnancy. The punitive damages award represented 2.6 of the company’s 2009 $9.5 billion revenue. Earlier in the week, the jury awarded $3.3 million dollars in compensatory damages to 12 of the women who testified. The case is reported to be the largest discrimination verdict ever.

Genetics Discrimination

Complaints were filed against MX Energy, a Connecticut natural gas retailer, under Title II of  Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment. The new federal law took effect on November 21, 2009.

GINA prohibits discrimination against employees or applicants because of genetic information. GINA also restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.

The charging party Pamela Fink, claims that her employer fired her, despite years of glowing evaluations, after learning she tested positive for the breast cancer gene. Fink filed complaints against her employer with the Connecticut Commission on Human Rights and Opportunities and the federal Equal Employment Opportunity Commission. About 90 GINA-related complaints have been filed nationwide since the law went into effect. This should be an interesting case to follow. For more about genetic discrimination, read here.

Rights Of Undocumented Workers

With all the talk about illegal immigration, one might wonder what the rights are of the over eight million undocumented workers in this country. Carolina Nunez, a law professor at Brigham Young University’s Reuben Clark Law School, wrote an interesting article about the topic which you can read here. The piece appeared in the Spring 2010 issue  of the Clark Memorandum, a publication of BYU’s J. Reuben Clark Law School.

Should undocumented workers enjoy the same workplace protections that authorized workers enjoy? When and how much should immigration status matter? Does being here count for anything? It is no surprise that the answers are less than clear.

Recent Cases Of Interest From The Circuits

Plaintiff Wins FMLA Appeal: In Goelzer v. Sheboygan County, Wisconsin Dorothy Goelzer was fired from her administrative job with the county government after 20 years. Her supervisor told her about the termination decision two weeks before she was scheduled to begin two months of leave under the Family and Medical Leave Act.

Goelzer had taken a significant amount of authorized FMLA during the four preceding years to deal with her own health issues as well as those of her husband and mother. The defendants claimed she was fired because they wanted to hire someone with a “greater skill set.” The district court granted judgment against Goelzer.

The Seventh Circuit Court of Appeals reversed this month stating that comments suggesting frustration with her use of leave, Goelzer’s favorable performance reviews, and the timing of her termination could lead a jury to conclude that Goelzer was fired because she exercised her right to take FMLA. This is a very good case for those who are claiming an interference or retaliation claim under the FMLA.

Employers Liable For Third Party Harassment: In Beckford v. Department of Corrections, Melanie Beckford, and thirteen other female employees, claimed that the Florida Department of Corrections failed to remedy the sexually offensive conduct of inmates  — including the frequent use of gender-specific abusive language and pervasive gunning, the notorious practice of inmates openly masturbating toward female staff. The jury found in favor the plaintiffs and awarded each $45,000 in damages.

The Department appealed and contended that it could not be liable under Title VII unless its staff actively encouraged or participated in the harassment. The Eleventh Circuit affirmed the verdict and concluded that the jury was entitled to find the Department liable because it unreasonably failed to remedy the sexual harassment by its inmates. The Court said:

It is well established that employers may be liable for failing to remedy the harassment of employees by third parties who create a hostile environment. …It makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer.

Employees are often harassed at work by individuals who are not employees. This case, which holds that employers are liable for harassment by third parties, is an important affirmation of this particular aspect of employer liability under Title VII.

images: www.hivplusmag.com charityrisk.squarespace.com

*This post originally appeared in Employee Rights Post on May 24, 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.

Your Rights Job Survival The Issues Features Resources About This Blog