Blog Post

July 2004

March 18, 2008
Topic: Archive from Old Blog

July 2004

Friday, July 30, 2004

There persists a split in the circuits about the appropriate standard for evaluating who qualifies as an "employee" under the federal anti-discrimination statutes. Three tests are presently employed: the common law agency test (exemplified by the Supreme Court's ERISA decision, Nationwide Mutual Insurance Company v. Darden, 503 U.S. 318, 322 (1992)), the "economic realities" test, and the "control" test. While each standard ordinarily arrives at the same result, sometimes the choice makes a difference, as it appeared to do in yesterday's Sixth Circuit decision, Weary v. Cochran, No. 03-5143 (6th Cir. July 29, 2004).

Weary addresses the recurring question of whether an insurance agent under a particular form of contract ought be considered an "employee" covered by the ADEA, or else an independent contractor with no protection at all. (Note, at least in race discrimination cases, that this dichotomy is not presented because section 1981 covers contractors as well.) The panel majority deemed that the preponderence of the Darden factors favored a contractor designation (for example, that plaintiff provided his own office space, set his own schedule, and himself admitted that he was a contractor), while only a few factors weighed in plantiff's favor (the company provided ERISA benefits, withheld FICA, and enforced a set of agent standards).

But dissenting Judge Clay relied heavily on indicia in the contract that the company controlled key aspects of plaintiff's performance, including recordskeeping, which policies he could sell and what materials he could use. As importantly, the contract gave the defendant veto power over any other insurance company the agent may want to sell for over the duration of the relationship. While Judge Clay did not formally reject Darden, he subordinated the multi-factor test to the predominant question of who controlled the performance, and he deemed that the record was firmly in plaintiff's favor on this point.

A plaintiff's lawyer considering such a case must carefully consult the circuit law where they practice to evaluate this issue.

Thursday, July 29, 2004

I seldom read state court anti-discrimination decisions, practicing as I do in a jurisdiction (Illinois) without a private right of action for employment discrimination. But I really ought to pay more attention. Take a look at Arquero v. Hilton Hawaiian Village LLC, No. 24162 (Hawai'i June 10, 2004), which used a neat bit of legal logic to elevate a single event (an inappropriate grabbing, one second in duration) into severe or pervasive workplace harassment. According to the opinion, on the summary judgment record, "In March and April 1998, Madonna P. Arquero and German Rodas worked as waitstaff in Hilton's Rainbow Lanai Restaurant. On March 29, 1998, Assistant Manager Zaiton Short (Assistant Manager Short) passed by the estaurant's open kitchen doors and observed Rodas stand behind Arquero and squeeze her right buttock for approximately one second." The manager issued a verbal warning. After a second incident, the co-worker was suspended (and eventually fired).

Under Title VII, such conduct would not be deemed sufficiently "severe or pervasive" to constitute harassment. But the state high court -- declining to read the state's own civil rights statute in lockstep with federal law -- reached a different result. The court noted that under state criminal law, the co-worker's behavior constituted a fourth-degree misdemeanor. Although the court did not mention the per se tort doctrine, which equates proof of a criminal violation with tort liability, it did find that the conduct presented at least a genuine issue of material fact on the issue of "severity."

The federal criminal code defines "sexual contact" (at 18 U.S.C. § 2246(3) as "the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." And, under 18 U.S.C. § 2244(b), "Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly engages in sexual contact with another person without that other person's permission shall be fined under this title, imprisoned not more than six months, or both." Query: If Congress deemed such grabbing an offense worthy of incarceration, is it not per se severe?

Wednesday, July 28, 2004

I read with some pleasure a decision issued Monday by my own Seventh Circuit (whose 27th floor perch in the Everett Dirkson Federal Bldg. appears in my office window, just two blocks away). In Harvey v. Office of Banks and Real Estate, No. 02-3501 (7th Cir. July 26, 2004), two African-American plaintiffs prevailed at trial over an agency of the State of Illinois in a Title VII discrimination and retaliation case, with a verdict of $300,000 compensatory damages and $4170 back pay for plaintiff Harvey, and $100,000 compensatory damages and $30,000 back pay for plaintiff King. (And recall that no punitive damages are allowed against a state employer, or the verdicts might have been higher still.)

The Seventh Circuit affirmed the verdict. The court's opinion does not so much blaze a new trail in the law (the only issues on appeal were sufficiency of the evidence and excessive damages), as it rather reiterates for the bar (and the lower courts, if they're listening) certain lessons forgotten from Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133 (2000). Such as that, "Although we review the entire record, we disregard all evidence favorable to the moving party that the jury is not required to believe. Reeves, 530 U.S. at 151. Our job at this stage is not to determine whether the jury believed the right people, but only to assure that it was presented with a legally sufficient basis to support the verdict." And "that the employer is in the best position to provide the actual reason for its decision and when it has failed to do so, 'discrimination may well be the most likely alternative explanation.' Reeves, 530 U.S. at 147."

The opinion also details, from testimony at trial, a remarkable account of how one of the plaintiffs learned he was being demoted by his supervisor, Jay Stevenson:

"When Harvey arrived in [Illinois state capitol] Springfield, Stevenson drove Harvey to Stevenson's church in a state vehicle. Harvey had no idea why Stevenson had brought him there, initially assuming that Stevenson needed to pick something up on their way to lunch. Instead, Stevenson asked Harvey to sit in a pew, explained to him thatthe church was a source of strength, told Harvey that he did not have a racist bone in his body, and said that Harvey should not view the reclassification as a 'racial act.' Stevenson then drove Harvey back to OBRE and informed him that he could accept the PSA reclassification voluntarily or have it take effect involuntarily. Harvey felt he had no choice at that point and accepted the demotion."

Whether this was just guilelessness on the part of the manager, or some kind of raging meglomania, there is no sign in the opinion that Mr. Stevenson ever denied the incident at trial. No doubt it belongs in some pantheon of managerial insensitivity (and one must wonder whether Mr. Stevenson held onto his job after this bombshell -- knowing Illinois politics, I'd guess he probably did).

Tuesday, July 27, 2004

I recently had published an article ("So You Want to Go to the Supreme Court?," BNA's Employment Discrimination Report at 45 (July 14, 2004)) -- a condensed version of a longer paper that I will be presenting at the ABA national convention next month -- which synopsized ten current and long-standing circuit conflicts in the EEO arena (e.g., the probative value of comparative evidence in a pretext case, the Rule 23 standards for certification of a Title VII damages class). I selected the circuit conflicts based roughly on their relative importance to the run of EEO cases in the federal courts. Given the precious few berths available for employment discrimination cases each term in the Supreme Court, I would (as a practitioner in this area) prefer to see the more important matters taken up with dispatch.

There are numerous other circuit conflicts, though, that are less in need of immediate resolution, given their arcane nature and infrequency of occurance. I fear that one of them -- the implied ministerial exception to Title VII -- may be a step nearer to reaching the Supreme Court today. The Ninth Circuit just issued a shot across the bow in Elvig v. Calvin Presbyterian Church, No. 02-35805 (9th Cir. July 23, 2004), holding (in apparent tension with other circuits) that a female minister could state a Title VII hostile work environment claim against her church employer. (In a nutshell, the panel majority found that the First Amendment squimishness that confounds judicial review of sectarian employment actions generally does not extend to harassment claims.)

The majority opinions and dissent make interesting reading, no doubt about it, but the sum total of the panel's effort in this matter will affect just a tiny number of discrimination cases overall. Most plaintiffs' attorneys (even if Elvig prevails) will see little professional advantage in pursing such claims. And most potential claimants realize the high wall they must climb to win against such defendants.

So why do I suppose that this case (barring reversal by the full circuit court en banc) will vault onto the Supreme Court's docket? First, it originates from the Ninth Circuit, the High Court's favorite whipping boy among the Courts of Appeals. Second, it reaches what could be construed as a "liberal" result, preserving judicial power to police workplace harassment. Third, it has a church-state overlay that makes it irresistable to this Supreme Court. Fourth, the case will attract considerable attention from lawmakers, legal representatives from major U.S. denominatations and the church-state legal defense funds that exercise significant influence in this field. In sum, it is my hope that Rev. Elvig will get her day in court, and that our Supreme Court will resist the temptation to involve itself.

Monday, July 26, 2004

My Eleventh Circuit summaries are now up to date, bringing the grand total of completed circuits up to eight (all but the Fifth, Sixth, Ninth and Tenth). I have ambitious intentions to complete those four this summer.

Meanwhile, the Eighth Circuit last Friday became (I believe) the fourth federal court of appeals to strike down (in whole or part) the federal Sentencing Guidelines under the Sixth Amendment standard announced in Blakely. Eighth Circuit stalwarts Judges Donald Lay and Myron Bright (both Johnson appointees!) held in a separate, joint opinion (otherwise affirming Mooney's conviction) that the Guidelines are purely precatory in that circuit for the time being. Judge Diana Murphy (a Clinton appointee who served as Commission chair on the U.S. Sentencing Commission, 1999-2004) dissented, contending that "the Supreme Court has instructed lower courts to follow its existing precedent until the Court has overruled it."

Fidelity to U.S. Supreme Court precedent was also tested in a less-momentous, Title VII case published by the Eighth Circuit the same day, also divided 2-1, probing the outer limits of the Faragher/Ellerth defense. In McCurdy v. Arkansas State Police, No. 03-3058 (8th Cir. Jul. 23, 2004), the court confronted the situation where a plaintiff contended that a single incident of supervisor harassment (without an adverse employment action) was sufficiently severe to be actionable. If, as in that case, the plaintiff promptly complained about the harassment and the employer took prompt and effective remedial measures, can the employer then erect a Faragher/Ellerth affirmative defense to liability? On a straight-forward reading of those precedents, the employer would inarguably be liable for the supervisor harassment (and, indeed, so Judge Michael Melloy -- a Bush I appointee -- found in his dissent), because the defense requires proof that the employee unreasonably failed to avail herself of the employer's remedial measures.

But Judge William J. Riley, a Bush II appointee (joined by a visiting district court judge), affirmed summary judgment and held (in so many words) that the Supreme Court couldn't have meant what it said in Faragher/Ellerth.

"Strict adherence to the Supreme Court's two-prong affirmative defense in this case is like trying to fit a square peg into a round hole. We will not tire ourselves with such an exercise. Instead, we critically ask whether Title VII envisions strict employer liability for a supervisor's single incident of sexual harassment when the employer takes swift and effective action to insulate the complaining employee from further harassment the moment the employer learns about the harassing conduct."

So framed, only a churl could disagree. Yet the dissent here raised the standard for submission to governing authority:

"It may be that the Supreme Court did not have a situation like this case in mind when it decided Faragher and Ellerth. In many, if not most cases, a single incidence of harassment, or as in this case, incidences that occur over less than an hour's time, will not normally rise to the level of being sufficiently severe and pervasive to constitute actionable harassment. However, I cannot read anything in Ellerth/Faragher that creates an exception to the two prong affirmative defense for those cases of single incident harassment that do rise to the level of actionable sexual harassment. As I read the Supreme Court cases, if there is supervisory harassment, whether it is a single or multiple incident, and the employer cannot prove the plaintiff employee unreasonably failed to take advantage of any corrective opportunities, the employer will be liable, regardless of how effective and prompt its remedial action might have been."

I expect this "sudden sexual harassment" question to occupy more cases in the future until the Supreme Court quells the revolt.

Friday, July 23, 2004

The Supreme Court, in Pennsylvania State Police v. Suders , set out a relatively generous standard for evaluating constructive discharge in the hostile work environment setting: whether "the abusive working environment became so intolerable that [the employee's] resignation qualified as a fitting response." A month later, Westlaw turns up no reported cases citing this language. But I'm patient.

Meanwhile, remember that constructive discharge comes in other flavors. My favorite variant is the "handwriting-on-the-wall" situation, exemplified by EEOC v. University of Chicago Hospitals, 276 F.3d 326, 87 FEP 1089 (7th Cir. 2002), where the employer makes it obvious that the plaintiff is about to be fired anyway. In that case, the plaintiff (citing religious discrimination) returned from vacation to find her office packed up and used for storage, this following a series of unsuccessful attempts by the manager to get the employee fired.

I believe the Sixth Circuit may have identified yet another species of constructive discharge in Smith v. Henderson, No. 02-6073 (6th Cir. July 15, 2004) , where the employer United States Postal Service allegedly failed to reasonably accommodate the employee's disability. The plaintiff complained of age, sex and disability discrimination (the latter under the Rehabilitation Act). The plaintiff, who was medically restricted due to rheumatoid arthritis (and who was allowed to work a regular 40-hour week), accepted a promotion to customer service supervisor. According to the summary judgment record, her boss refused to allow plaintiff to delegate certain bookkeeping duties to a subordinate (which apparently had been the practice when a man held her job), and she was therefore forced to work hours beyond her medical restrictions. After this and other aggravations with the boss, she submitted a formal written complaint to him (who, modeling modern personnel relations, reportedly responded that she was "now in a man's world" and should quit "whining"). Shortly thereafter, she took a disability retirement.

The Court reversed summary judgment on the issue of constructive discharge. While finding that some of the problems she suffered were not sufficiently intolerable to support such a claim, the panel found that the failure to honor her request for an accommodation tipped the balance:

To summarize, prior to Smith's promotion to Tour I Supervisor, the USPS was aware of Smith's disability and her medical need to avoid working overtime so as not to exacerbate her rheumatoid arthritis. The USPS had granted her an accommodation that limited her work as a distribution clerk to no more than eight hours per day, 40 hours per week. After Smith's promotion, however, the USPS refused to apply the restricted hours accommodation to her new position. There also is a genuine issue of material fact as to whether Smith requested, and was denied, an alternative accommodation in the form of being permitted to delegate the accounting duties of her supervisory position to a subordinate. This form of accommodation would have shortened Smith's work hours to better conform with her medical restrictions. In addition, there is a genuine issue of material fact as to whether the two accommodations Smith sought (restricted hours and/or delegated accounting duties) would have constituted "reasonable" accommodations under the Rehabilitation Act, or would have posed an undue hardship to the USPS. The fact that the USPS had permitted Smith's predecessor in the supervisor position to delegate the accounting duties suggests that these duties were non-essential job functions that could have been delegated without posing such a hardship.

Anyone pursuing an ADA or Rehabilitation Act case should keep this case citation at their fingertips.

Thursday, July 22, 2004

Consider a recent decision in DePace v. Matsushita Electric Corporation Of America, No. 02-CV-4312 ERK VVP (D.N.J. July 16, 2004) (Korman, J.), an ADEA and ERISA case now awaiting trial. (I am presently unable to locate a public version of this case to link, but for those with Westlaw, the citation is 2004 WL 1588312.) The plaintiffs' bar must continue to bring ERISA cases to keep employers and trustees on their toes, but such cases suffer a number of disadvantages from a practicing lawyer's point of view: no jury, no legal remedies, administrative exhaustion, and discretionary (not presumptive) attorneys' fees. Mating an ERISA case whenever possible with an ADEA claim complements these weaknesses, as the ADEA provides for a jury trial, damages and mandatory fees, and requires only the statutory 180-day waiting period for investigation of an EEOC charge.

In this case, the ADEA and ERISA claims proved a perfect match. The three plaintiffs challenged underpayment of promised severance benefits, claiming that they were lured into enrolling into an early retirement plan because of an overly-generous estimated calculation of benefits contained in the original correspondence with the participants. Having decided that plaintiffs presented a genuine issue of material fact on an ERISA claim of equitable estoppel, Judge Korman then presumed that they were entitled to an ADEA trial as well.

Nevertheless, because plaintiffs' ADEA claims rest on nearly identical grounds (with the addition of only one element, whose proof would add little complication to a trial) my decision of whether or not to dismiss plaintiffs' ADEA claims is not independent from my decision regarding their equitable estoppel claims. Because I deny defendant's motion regarding plaintiffs' equitable estoppel claims, it would make little sense to grant them summary judgment regarding the ADEA claims. If one of a number of integrally related causes of action have [sic] to be tried, it makes little sense to grant summary judgment as to one or more of them, as it may prove necessary to hold yet another trial in the event that it is determined on appeal that summary judgment was improperly granted.

Moreover, the district court located a genuine issue of material fact about the enforceability of the putative releases of ADEA and ERISA claims (executed by the plaintiffs) under the plan, owing to potential mutual mistake between employer and participants about the calculation of benefits: "Neither defendant nor plaintiffs understood what plaintiffs would receive in exchange for giving up their substantive rights; they assumed it would be substantially higher pensions than was in fact the case. At the very least, these are issues for the jury to decide."

In sum, counsel should look for opportunities to combine age and ERISA claims wherever possible.

Wednesday, July 21, 2004

The latest chapter in the Zubulake v. USB Warburg saga has just been published by U.S. District Court Judge Shira Scheindlin of the Southern District of New York, and the plaintiff scores big. In her July 20, 2004 order, the fifth in the case so far, the judge addresses the issue of spoliation in connection with a cache of archived e-mails sought by plaintiff in her sex discrimination case.

Plaintiff originally sought discovery of "[a]ll documents concerning any communications by or between USB employees concerning Plaintiff," including "without limitation, electronic or computerized data compilations." This garden-variety request spawned the now-notorious dispute about who would cover the expense of retrieving this data out of the sea of digital media maintained by USB. USB orginally pegged the cost of fulfilling plaintiff's request at $300,000, although later it scaled the estimate down to $175,000. In a series of decisions, culminating in Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003), the court ordered production of e-mails with plaintiff picking up 25% of the cost of recovery.

Subsequently, it came to light that the employer (groan!) destroyed some files, delayed production of others and failed to inform its defense counsel of critical developments. (As a side note, for plaintiffs' counsel predisposed to assume the worst from opposing counsel, I once worked at a large defense firm, and learned from hard experience that clients really do hide stuff from you. It is a nightmare, I will tell you.).

Capsule history: During the investigation of plaintiff's EEOC charge, defense counsel had informed USB to maintain electronic and hard copy files, but neglected to specifically demand preservation of backup tapes or to communicate directly with key figures. The plaintiff eventually uncovered evidence of spoliation and obtained an order to redepose a number of IT witnesses. And as day follows night, plaintiff learned of even more extensive spoliation. Plaintiff learned the the primary discriminator had access to e-mail files and deleted them, in some instances irretrievably. Backup tapes vanished. Moreover, some of the 45 e-mails that were eventually obtained through other sources included colorful evidence of retaliation.

The result: Sanctions for the defendant included (1) a spoliation instruction to the jury; (2) "re-"redeposition of witnesses at defendant's expense; and (3) fees and costs on the sanctions motion.

Note: I am not launched into transports of joy at the prospect of having to relive this experience each time I bring an individual discrimination case. The client here appears to have been highly compensated, and despite being horsed around for two years by a sophisticated employer (who, predictably, bought itself time by exaggerating the cost and difficulty of recovering data), the potential recovery apparently justifies her counsel's efforts. But what of the ordinary case? How many clients could afford to cover such costs, even scaled down as here? (My office principally represents clients in class actions, so the costs are more in line with that kind of action.) How many plaintiffs will luck into a federal judge willing to take the time to issue thoughtful and nuanced discovery decisions (the linked decision runs 52 pages)? My fear is that defendant, despite losing here, has shown (just by hanging tough) how to ramp up the cost of discovery for the rest of us (abetted, unashamedly, by the pernicious e-discovery consultants who insist that you're flirting with malpractice unless you hire them at $X hundred dollars an hour to dredge an employer's hard drives).

Tuesday, July 20, 2004

The Second Circuit's decision in Patterson v. County of Oneida, No. 03-7535 (2d Cir. July 15, 2004) (available at 2d Circuit website) rakes over two propositions, not always self-evident.

First, even the lousiest employee has a right not to be racially harassed. Plaintiff, a probationary correctional officer, failed to survive his term after his employer received reports that plaintiff, inter alia , committed domestic violence, used illegal drugs, assaulted a prisoner and blew a narcotic agent's cover. Summary judgment on the termination claim was, not surprisingly, affirmed. Plaintiff failed to present admissible evidence demonstrating racial animus by his superiors (his rebuttal record was made up of sporadic uses of racial epithets, his and other's conclusory affidavits and inadmissible hearsay testimony from another case). Nor was plaintiff able to cast doubt on the employer's good faith reliance on reports of his on- and off-duty misconduct. On the other hand, he obtained reversal of summary judgment on his racial harassment claim against two officers who (according to the summary judgment record) regularly directed racial slurs at plaintiff, refused to return his salutes and once even tackled and maced him. It is no defense for the harassers that the after-acquired evidence revealed plaintiff to something of a miscreant himself.

Second, Title VII and section 1981 claims are not co-terminous. The panel opinion (signed by Judge Kearse) noted four distinctions: (1) different limitations period (180- or 300-days under Title VII v. three years in N.Y. under section 1981); (2) section 1981 claims against a municipality or defendant in his official capacity must establish that the discrimination was pursuant to an official policy or custom; (3) no individual liability under Title VII; and (4) while Title VII claims in some instances can be supported by negligent acts (such as failure to exercise due case to prevent co-worker harassment), section 1981 requires intentional misconduct.

Monday, July 19, 2004

Check out the latest Fed. R. Civ. P. 23(f) appeal from the Seventh Circuit, Carnegie v. Household Int'l, Inc., No. 04-8008 (7th Cir. July 16, 2004). Not an employment case, but worth reading for its revival of some class certification verities -- and dispensation of some just desserts.

The essential fact pattern: a putative class action challenged the atrocious interest rates charged on "refund anticipation loans" (RALs), once offered by banks through mass-market income tax preparers. In 1999, the class first achieved a "global" settlement with the bank and the tax preparer and both sides pursued certification of a settlement class. The district court approved the settlement and enjoined similar actions pending throughout the country. But the Seventh Circuit tossed the settlement on appeal in 2002, citing evidence of collusion between the defendants and class counsel. On remand, the matter was reassigned to a different district court judge, who then certified the same class action (over defendants' vociferous objections) for litigation purposes.

The Seventh Circuit (in an opinion signed by Judge Richard Posner) overruled the defendants' objections, largely on grounds of judicial estoppel. "[T]he defendants benefitted from the temporary approval of the settlement, which they then used to enjoin other RAL litigation against them; and having reaped a benefit from their pertinacious defense of the class treatment of the case for purposes of settlement they cannot now be permitted to seek a further benefit from reversing their position." The panel then allowed that the defendants were not necessarily estopped from challenging the manageability of the class (including millions of claimants), but found their challenge meritless in light of the common legal issues and the modest potential recovery for each class member. "The more claimants there are, the more likely a class action is to yield substantial economies in litigation. . . . only a lunatic or a fanatic sues for $30."

The panel also observed that the remedial phase might require separate proceedings for class claimant, but found that task manageable as well. "That prospect need not defeat class treatment of the question whether the defendants violated RICO. Once that question is answered, if it is answered in favor of the class, a global settlement . . . will be a nautural and appropriate sequel. And if there is no settlement, that won't be the end of the world. Rule 23 allows district courts to devise imaginative solutions to problems created by the presence in a class action litigation of individual damages issues."

The opinion closes with the panel tying up some loose ends under Rule 23(a). Although the district court apparently neglected to make formal findings on numerosity, commonality and typicality, the panel decides these issues summarily in favor of plaintiff on the appellate record. "There has been substantial complaince with the requirements of the rule, and no more is required," Judge Posner concludes, "especially in a case in which the defendants were enthusiastic proponents of class treatment until their opportunistic change of heart."

Friday, July 16, 2004

Hurray, my Fourth Circuit write-ups are now current.

Timely, too, because the Fourth Circuit just Wednesday awarded an uncommon victory to a plaintiff in White v. BFI Waste Services, LLC, No. 03-1833 (4th Cir. July 14, 2004), reversing summary judgment in a Title VII/§1981 race harassment case. On the merits, plaintiff truck drivers were held to have presented a genuine issue of material fact about whether supervisors subjected plaintiffs to severe or pervasive harassment, by slinging the usual racial slurs (including "nigger," "monkey," and "boy") on a daily basis. Plaintiffs also raised a triable issue of fact regarding employer liability where there was evidence that employees made complaints under the policy that were not investigated and a company representative even admitted that making a racial complaint at the company was a "big mistake."

The plaintiffs conversely lost a pay discrimination claim, also on summary judgment (the plaintiffs claimed, unsuccesfully, that the company was shorting the African-American drivers by systematically assigning them lower pay codes than whites). And it is here where I draw plaintiff counsels' attention to a little-heeded fact in summary judgment cases. To fend off summary judgment on an argument that investigation continues, a plaintiff must submit a Fed. R. Civ. P. 56(f) motion and affidavit to explain the absence of record evidence and what the non-movant hopes to obtain through discovery. Footnote 3 of the Fourth Circuit opinion affirms the district court's denial of a Rule 56(f) motion, holding that the plaintiffs were not diligent in obtaining relevant materials during the discovery period where counsel "served discovery . . . [on] the last possible day to serve discovery" under the district court's discovery schedule.

Moral: the process of avoiding summary judgment begins when the case commences. Do not wait until the tail end of a case to conduct "clean-up" discovery, as it may already be too late.

Thursday, July 15, 2004

What with all of the excitment about the future of the Federal Sentencing Guidelines (see below), who has time to read employment cases?

Well, as you know, we read 'em here every day so that you don't have to (except, of course, that you should -- see Disclaimer). The Second Circuit recently issued a corrected decision in Tesser v. Board of Educ. of City School Dist. of City of New York, No. 02-7552 (2d Cir. July 6, 2004) (available on 2d Cir. website), a plaintiff's appeal from jury verdict for the employer. Bottom line is that the employee loses, but plaintiffs' counsel ought to note both the theory of damages pursued in that case and the consequences for the plaintiff.

Plaintiff -- an assistant principal --alleged that she was denied a promotion and eventually terminated because of religion and retaliation. At trial, plaintiff's expert witness (arguing for a maximum compensatory damage award) opined that the award ought to be adjusted upward to compensate for the additional tax burden that a lump-award would entail. To rebut this testimony, the district court allowed the defendant to introduce the plaintiff's joint tax returns from 1996 to 2000, on the ground that the expert opened the door (and with cautionary instructions that the returns ought to be considered only for whatever effect they may have on the expert damage witness's testimony). The expert had not, according to the opinion, reviewed the tax returns in reaching his conclusions. Of course, it turned out that the spouse was pulling down a substantial income, and the jury had that manifestly irrelevant fact before them. The court of appeals held that any error in admitting the returns was harmless. Moral: while the tax effects of an award are relevant, care should be taken in presenting such a case with a dual-income family like the Tessers.

On the Guidelines front, there's a new opinion U.S. v. Montgomery, No. 03-5256 (6th Cir. July 14, 2004), that brings down the curtain in the Sixth Circuit:

Therefore, in order to comply with Blakely and the Sixth Amendment, the mandatory system of fixed rules calibrating sentences automatically to facts found by judges must be displaced by an indeterminate system in which the Federal Sentencing Guidelines in fact become "guidelines' in the dictionary-definition sense ("an indication or outline of future policy," Webster's International Dictionary (3d ed. 1963)). The "guidelines" will become simply recommendations that the judge should seriously consider but may disregard when she believes that a different sentence is called for. This solution to the immediate problem in federal sentencing is not inconsistent with the alternative position by the Deputy Attorney General in his memo to federal prosecutors, a memo forwarded to the federal judiciary on July 7, 2004. ("In that event [when the guidelines may not be applied as mandatory rules], the government should urge the court to impose sentence, exercising traditional judicial discretion, within the applicable statutory sentence range" with the "recommendation in all such cases . . . that the court exercise its discretion to impose a sentence that conforms to a sentence under the Guidelines....").

Well, that's that, right? Okay, well, there's the collateral issue of whether Blakely challenges to federal criminal sentences are retroactive. the Eleventh Circuit last week ruled "no" (In re Dean, No. 04-13244 (11th Cir. July 9, 2004)). Judge Milton Shadur of the U.S. District Court of the Northern District of Illinois also rejected a Blakely challenge on a federal habeas petition (U.S. v. Traeger, No. 04-2685 (N.D. Ill. July 9., 2004) (available on RACER at N.D. Ill. website)).

Meanwhile, the Ninth Circuit ordered the remand of a conviction (pending resolution of a constitutional question by the Supreme Court in a pending case), noting that in any event the defendant must be resentenced in accord with Blakely (but providing no guidance on the issue whatsoever, most likely realizing that before resentencing the Supreme Court will have already decided the question). U.S. v. Epis, No. 02-10523 (9th Cir. July 12, 2004).

I can't keep up with the explosion of cases in this area on this site (instead, check out the Blakely Blog ), but I do expect that our acting U.S. Solicitor General and Supreme Court will be swinging into action soon enough to stem (or maybe stoke) the chaos.

Wednesday, July 14, 2004

Read below about the "zucchini incident."

But the most exciting development in federal law today is the duel over the future of the Federal Sentencing Guidelines in the wake of Blakely v. Washington, No. 02-1632 (U.S. June 24, 2004), pitting the finest minds of the Article III judiciary against the U.S. Attorney General. The circuits are now split over the constitutionality of the sentence enhancements under the Guidelines. In U.S. v. Booker, No. 03-4225 (7th Cir. July 9, 2004), the panel spilt 2-1 over the issue, with Judge Richard Posner writing (for the majority) that the enhancements as presently constituted violate the Sixth Amendment (with Judge Frank Easterbrook dissenting), suggesting further that the enhancements may not be severable from the rest of the federal sentencing law. One court-day later, the Fifth Circuit reached the opposite result in U.S. v. Pineiro, No. 03-30437 (5th Cir. July 12, 2004). Now the Second Circuit has invoked a rare procedure to certify the Sixth Amendment issue to the U.S. Supreme Court.

The potential crisis that these decisions portend for federal prosecutions cannot be overstated, as (at a minimum) thousands of defendants must be reindicted or resentenced, and courts may be thrown back to the pre-Guidelines sentencing regime. It behooves anyone interested in the law generally to stay tuned.

Meanwhile, on the employment front, a nice little Ninth Circuit case demonstrates the limits of the "honest belief" doctrine -- the prevailing notion that, in a pretext case, an "employer's explanation can be 'foolish or trivial or even baseless' so long as the company 'honestly believed' in the reasons it offered for the adverse employment action" (Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 978 (7th Cir. 2004). In Fonesca v. Sysco Food Services of Arizona, No. 03-15193 (9th Cir. July 6, 2004), a pro se plaintiff -- a Guatemalan warehouse worker -- argued that denial of overtime opportunities, delay of wage payment and certain disciplinary actions were motivated by race and ethnicity, in violation of title VII and section 1981. The capstone on plaintiff's claim was an incident in September of 2000, where Fonesca had the misfortune of dropping a case of zucchini off of his forklift in the presence of four supervisors (including the VP of Operations). Despite that plaintiff had not loaded the pallet, he was charged with damaging company property and suspended one day. (He grieved the discipline, which was eventually reduced to a warning letter.)

On appeal of the summary judgment for Sysco, the panel found that plaintiff presented genuine issues of material fact on his prima facie case. The panel then found that "Sysco offers only one reason for one instance of disparate treatment, besides its conclusory and irrelevant assertion that any disparate treatment was 'inadvertant.' Regarding the zucchini incident, Sysco argues that Bill Zink, who saw Fonseca's zucchini accident, determined that Fonseca intentionally damaged the goods, and therefore discipline was appropriate." But given that (1) the company never investigated the incident, (2) plaintiff successfully grieved the suspension, and (3) Zink was not the decision-maker, the panel found (along with other evidence of animus) that the plaintiff presented a triable issue of fact on pretext.

The "zucchini incident," for real!! Score one for the pro se warehouse worker over the law firm of Littler Mendelson.

Tuesday, July 13, 2004

The Fourth Circuit last week issued an Americans With Disabilities decision that chills the blood. In Rohan v. Networks Presentations LLC, No. 03-1637 (4th Cir. July 8, 2004), the panel majority (Judge Duncan writing for herself and Judge Widener) affirmed dismissal on the ground that plaintiff -- a singer and actress with a touring theatre company, who suffered post-traumatic stress disorder and severe depression -- was not an "individual with a disablity" within the compass of the ADA, in spite of a history of harrowing and debilitating episodes that were documented by two expert clinicians.

The record renders in vivid detail the progression of her mental illness. Her condition -- produced by her encounter with childhood incest -- caused her to endure dissociative flashback episodes in which she would retreat to child-like behavior or muteness. She experienced thirty of these episodes over a four-month tour with the company, accompanied by screaming, jabbering, catatonia and uncontrollable crying. Episodes were triggered by common and seemingly innocuous events (such as watching a movie or observing a parent scolding a child). Her abnormal behavior raised hackles with the cast and crew. Finally, near the end of the first leg of the tour, she expressed suicidal intentions, took an overdose of tranquilizers and cut herself with a razor. At the Christmas break, the company terminated her contract (avowedly out of concern for her "well-being on the tour," in the hopes that she would seek treatment, and because plaintiff had said that she might quit anyway).

Judge Duncan applied estimable skills in drafting this opinion, but reached a severely misguided result. (The judge, incidentally, was appointed by President Bush last year, approved unanimously by the Senate, and -- according to her official biography -- was once an attorney for the Equal Employment Opportunity Commission (1978-1986) and on the board of Legal Aid of North Carolina.) The majority opinion rejected out-of-hand the defendant's suggestion that plaintiff did not suffer an impairment. (Some defense counsel seem prone to this habit: making every argument available to the cllient, even when they clash with other arguments, or just lack plain sense.) The court also rejected the ground raised by the district court sua sponte -- that interacting with the rest of the cast and crew was an "essential function" of the job that Rohan was not "qualified" to perform.

Despite clearing away these incredible arguments, the panel majority affirmed summary judgment on the alternative ground that plaintiff was not a substantially limited in the major life activity of interacting with others under 42 U.S.C. § 12102(2)(A). It held that Ms. Rohan's dissociative events were at most intermittent (twice a week, lasting no more than 30 minutes at a stretch), and that during the balance of the time plaintiff was able to interact normally with the world: she had friends, attended dance classes, worked and lived with the cast and enjoyed performing. (The court also rejected plaintiff's alternative theory that the company regarded her is disabled under 42 U.S.C. § 12102(2)(C).)

Judge Shedd filed a convincing dissent, filling in details about the severity of Ms. Rohan's episodes omitted by the majority opinion, and noting how these episodes interfered with her relationship with the rest of the cast. Judge Shedd wrote that "[i]n holding that Rohan was not disabled, the majority discounts the substantial testimony of Sheahen and Dr. Irwin with no explanation, understates the frequency and severity of Rohan's episodes, and suggests alternative explanations for Rohan's plainly abnormal behavior. In short, the majority weighs the evidence, makes credibility determinations, and denies Rohan the benefit of the evidence that favors her claim. This kind of analysis is inappropriate at summary judgment. "

Now, none of the above is to conclude that the theatre company might not have some kind of defense. The case is presented on a summary judgment record, tilted (supposedly) in favor of plaintiff. Given the extreme facts, it is conceivable that Ms. Rohan's condition placed an undue burden on a theatre company where the cast and crew shared close quarters (though, as an affirmative defense, the employer would bear the burden of proof on this). But Ms. Rohan at least deserves a trial on what's presented by the panel opinion.

Last year, the full Fourth Circuit reversed one of its more hyperbolic, anti-plaintiff sex harassment decisions. Ocheltree v. Scollon Productions, Inc. , 335 F.3d 325, 92 FEP 433 (4th Cir. 2003) (en banc). Simple justice demands that this decision be reversed, as well.

Monday, July 12, 2004

Commentators (myself included) and courts have been generally dismissive of the wild-eyed suggestion that the Supreme Court's decision in Desert Palace Inc. v. Costa -- abolishing the "direct evidence" requirement for proving a so-called Title VII "mixed motives" case -- extends beyond Title VII (and ADA) cases. The thinking had been that since Costa interpreted a section of the 1991 Civil Rights Act (codified at 42 U.S.C. § 2000e-2(m)) that applied only to Title VII, the opinion's reason would be confined to that statute. Other statutes would continue to be governed by the more restrictive approach prescribed by Price Waterhouse v. Hopkins. 498 U.S. 228 (1989).

Turns out that the Fifth Circuit was not listening to the naysayers. In a opinion from one of the most conservative U.S. Courts of Appeals, the court held in Rachid v. Jack in the Box, Inc. (5th Cir. June 25, 2004) that Costa also eliminated the "direct evidence" rule in ADEA cases. The underlying facts, while redolent of age discrimination, were held to fall short of "direct evidence":

Rachid was employed by JIB from October 1995 to February 2001. Patrick Powers ("Powers") became Rachid's supervisor in September 1999. Rachid managed two restaurants, and shared managerial duties at one of the restaurants with Khalil Haidar ("Haidar"). Powers repeatedly criticized Rachid, and, according to both Rachid and Haidar, made disparaging comments about Rachid's age. Rachid, who was 52 years old, reported these comments to JIB's human resources department, and even requested a transfer because he feared that Powers sought to fire him because of his age. A transfer was never approved and Rachid was fired, according to JIB, for failing to follow policies related to recording employee time.

Yet the Fifth Circuit held that Costa required reconsideration of the prior case law setting a "direct evidence" hurdle for mixed-motive ADEA cases. It observed that Costa found no basis in the statutory language of Title VII for a heightened evidentiary standard under 42 U.S.C. § 2000e-2(m). Then, likewise:

Given that the language of the relevant provision of the ADEA is similarly silent as to the heightened direct evidence standard, and the presence of heightened pleading requirements in other statutes, we hold that direct evidence of discrimination is not necessary to receive a mixed-motives analysis for an ADEA claim. [Footnotes omitted]

The court finally went on to hold that Costa represented a merger of the McDonnell Douglas and Price Waterhouse methods of proof:

Under this integrated approach, called, for simplicity, the modified McDonnell Douglas approach: the plaintiff must still demonstrate a prima facie case of discrimination; the defendant then must articulate a legitimate, non-discriminatory reason for its decision to terminate the plaintiff; and, if the defendant meets its burden of production, "the plaintiff must then offer sufficient evidence to create a genuine issue of material fact 'either (1) that the defendant's reason is not true, but is instead a pretext for discrimination (pretext alternative); or (2) that the defendant's reason, while true, is only one of the reasons for its conduct, and another "motivating factor" is the plaintiff's protected characteristic (mixed-motive[s] alternative).' " [citing Rishel v. Nationwide Mut. Ins. Co., 297 F. Supp. 2d 854, 865 (M.D.N.C.2003) and Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d 1180, 1197-98 (N.D.Iowa 2003)].

No other circuit has yet reached this issue, although the Fourth Circuit came within a whisker of holding that Costa did not apply to an ADEA claim in Mereish v. Walker, 359 F.3d 330, 339-40 (4th Cir.2004) . So circuit split might be expected to arrive soon enough.

Friday, July 9, 2004

My complete Eighth Circuit write-ups are now on line. The Eighth Circuit doesn't get a lot of attention from commentators (as compared, say, to the headlines garnered by the Ninth and Fourth Circuits), but it is unusually prolific in publishing employment discrimination cases. Many of the published opinions are pretty routine (i.e., lots and lots of summary judgments affirmed). Still, now and then, a jewel emerges, such as this latest case -- MacGregor v. Mallinckrodt, Inc., No. 03-3166 (8th Cir. June 30, 2004) (available on the Eighth Circuit Website) -- affirming a verdict for a plaintiff in a Title VII sex discrimination case.

Plaintiff MacGregor was described in the panel opinion as "the senior female in marketing and the only female among the three Business Segment Directors ('BSDs') at the Plymouth, Minnesota facility." The court of appeals opinion set the stage for her case:

Jerry Mattys, MacGregor's initial supervisor, was promoted to national vice president in early 1999. Mattys reorganized his chain of command from seventeen direct reports, four of whom were female, to twelve direct reports, none of whom were female. Mattys also named Hans Stover, formerly MacGregor's peer, to succeed Mattys in his former post. At his first meeting, Stover commented that there were "too many women at the table." The remark was reported to Tina Cronin, the Director of Human Resources. Instead of reprimanding him, Cronin told Stover to be careful with such comments because they could be taken "out of context." Additionally, when a female manager proposed hiring a female candidate in her department, Stover refused, stating that "there are too many women in marketing."

When Stover decided to consolidate some positions in his organization, two men were allowed to remain employed while plaintiff's job was eliminated. Stover, the court wrote, "then offered MacGregor a new position, Director of Market Development. This new position had no budgetary or supervisory responsibilities." Plaintiff attempted to negotiate favorable terms for the new job (including a better title and a $12,000 raise); but when the best that Stover could do was a $7,000 raise period, negotiations ended and plaintiff was severed from the organization.

On a claim of Title VII sex discrimination, the jury awarded MacGregor $68,802 lost wages, $102,000 lost stock options, $1 nominal compensatory damages and $829,197 punitive damages (reduced to $300,000). The panel affirmed the verdict over a panoply of alleged evidentiary and instructional errors.

The panel's key insight -- made so quietly as to virtually elude notice -- was that the plaintiff prevailed on a straight termination theory, rather than constructive discharge, despite that the employer (cognizant of MacGregor's complaints of discrimination) was willing to relocate her into another job with a $7,000 raise. As plaintiff's attorneys know, constructive discharge is ordinarily very difficult to prove (although the U.S. Supreme Court arguably loosened the cords a bit in its latest decision, Pennsylvania State Police v. Suders). Here, on one reading of the record (and in contrast to typical constructive discharge cases), the company really wanted MacGregor to stay, and plaintiff voluntarily walked away from a comparable opportunity in the business. Other courts on this record might have cut back on her remedy, or even found no liability at all. Yet the panel here held that a jury could find that offering a female executive a dead-end job in the place of her now-abolished position, having just turned her down for a promotion in favor of a less-qualified male, was truly a termination. The plaintiff was not required to march through the more rigorous proof of constructive discharge to make out a claim.

Moral: a jury is allowed to weigh workplace realities in evaluating a plaintiff's claim. Tis' a pity that they are so rarely allowed to do so.

Thursday, July 8, 2004

All right, as of today we now have my complete Third Circuit summaries on line.

A recent decision from that circuit, Palcko v. Airborne Express, Inc. (3d Cir. June 18, 2004), tangled with several arbitration issues left over from the Supreme Court's decision in Circuit City Stores, Inc. v. Adams , 532 U.S. 105 (2001). In Circuit City, the Supreme Court held that the category of "workers engaged in foreign or interstate commerce" who are exempt from the Federal Arbitration Act (FAA), 9 U.S.C. § 1, includes only workers in the transportation industry. Plaintiff -- who signed an arbitration agreement with her employer, an interstate courier -- filed a federal civil action under state and federal law for sex discrimination and harassment. The district court denied a motion to compel arbitration on the ground that plaintiff was an exempt employee under FAA § 1, and the courier took an interlocutory appeal under 9 U.S.C. § 16. The court of appeals had to answer several novel questions to reach its result, ultimately reversing the district court.

Issue #1 -- If truck drivers are "workers engaged in foreign or interstate commerce" who are exempt under the FAA § 1, what about the foreman on the dock? In this case, the employee was a management-side figure who, according to her affidavit, was responsible for "monitoring and improving the performance of drivers under my supervision to insure [sic] timely and efficient delivery of packages." The panel affirmed the district court's finding that plaintiff was "engaged in . . . commerce," despite that she did not load or drive the rigs herself, because her work was "'so closely related [to interstate and foreign commerce] as to be in practical effect part of it."

Issue #2 -- Once the court of appeals finds no coverage under the FAA, does it then lose appellate jurisdiction to decide anything else under FAA § 16? No, the court decided -- it continued to have pendent appellate jurisdiction to decide whether the agreement could be enforced under state arbitration law (and here, the agreement's choice-of-law section referenced Washington state law).

Issue #3 -- Does the FAA § 1 exemption of workers engaged in commerce preempt the application of state arbitration law to the same employees? The district court held that the FAA exemption preempted the field, and here the court of appeals reversed. Reviewing the Supreme Court precedent under the FAA, it held that Congress did not intend to preempt state arbitration law except to the extent that it conflicted with the federal act. Here, the court found that application of state arbitration law to transportation workers complemented, rather than conflicted with, the FAA.

Issue #4 -- May the employer waive the arbitration agreement by failing to raise it at the pleadings stage? The employer waited until after it filed a Fed. R. Civ. P. 12(b) motion to dismiss (on service of process grounds) to move to compel arbitration, some 38 days after learning about the civil action. Plaintiff attempted to characterize the motion to compel as a motion for lack of personal jurisdiction or improper venue (Fed. R. Civ. P. 12(b)(2) and (3)), which are waived if not presented upon the first motion to dismiss (Fed. R. Civ. P. 12(h)(1)). The district court did not reach the issue of waiver, but the employee presented it as an alternative basis for affirming the decision below. The panel rejected the appeal to Rule 12(h)(1) and observed that arbitration maybe waived only under circumstances where the plaintiff is actually prejudiced by the delay (citing a situation where an employer waits nearly a year after briefing a dispositive motion and engages in extensive discovery before moving to compel arbitration). Here, the court held that the plaintiff presented no record of prejudice.

Wednesday, July 7, 2004

I'm pleased to report that the Second Circuit case summaries are now up-to-date. In particular, I commend to your professional reading Feingold v. New York, 366 F.3d 138, 93 FEP 1573 (2d Cir. 2004) (available in PDF at Second Circuit website, Docket No. 02-7985) , a really first-rate decision exhibiting an especial resourcefulness by the plaintiff and his counsel.

This case models a useful practice, in cases where the employee submits a swarm of minor aggravations that (one-by-one) arguably fall short of "adverse employment actions," of aggregating the offending practices and combining them with a claim of harassment. Plaintiff Feingold -- who was a probationary Administrative Law Judge for a traffic court in Brooklyn -- is white, gay and Jewish. This combination, the summary judgment record reveals, was anethma to the other ALJs. He alleged that he was marginalized from the office culture: co-workers regularly mocked his name, spoke frequently about their Christian beliefs (or denigrated Judaism), and called him a "fag or "faggot." In addition, more senior ALJs declined to train Feingold and dumped their work on him, while another probationary ALJ who was African-American was allegedly not treated the same way. When plaintiff finally complained to supervising ALJ about the mistreatment, the supervisor's only advice was to quietly "sit tight" until a transfer could be arranged. Plaintiff's tenure came to a crashing end when he was fired for (1) entering not-guilty verdicts for two motorists while the police officer was absent from the room, and (2) on the same day, allegedly making an interperate remark in the hearing room and breaking a glass pane (the latter charge which plaintiff denied). The district court entered summary judgment on all claims.

The Second Circuit opinion (authored in draft form by the late Judge Fred Parker, completed and signed on his behalf by the panel in memorium -- a nice touch) reversed most of the summary judgment, although it pruned away some claims as barred by the Eleventh Amendment and sovereign immunity. First, the panel had no problem finding the above-conduct (including the lack of training and the overloaded docket) could constitute severe or pervasive harassment. (Curiously, while the facts were insufficient to support a race harassment claim, the panel held that evidence of racial animosity was also relevant to the religious-based claim.) Second, his complaints to his superiors and their failure to act was sufficient to impute harassment liability to the agency. Third, the workload and termination claims were held to present genuine issues of material fact. In particular on the termination claim, plaintiff showed that others who committed comparable violations (non-suiting traffic complaints where the police officer left the hearing room) were not disciplined, let alone fired. While plaintiff was a probationary employee, and thus subject to termination more readily than the permanent ALJs, the difference in discipline was so striking as to render this distinction nugatory. If anything, the summary judgment record suggested that the two "not guilty" adjudications were consistent with instructions given by superiors.

Finally, regarding the claim of imbalanced workloads, the panel opinion revived an oft-forgotten standard from the pioneering pretext cases, such as Burdine: that although the employer carries only the burden of production to establish a legitimate, non-discriminatory reason for an adverse decision, that burden is met only by admissible evidence. Where, as here, the evidence (a supervisor's conclusory testimony that probationary ALJs always received heavier caseloads) was unsubstantiated by empirical evidence, summary judgment was inappropriate on that claim.

Tuesday, July 6, 2004

Judge William H. Pryor Jr., the bete noir of progressives everywhere, is presently serving out a recess appointment on the U.S. Court of Appeals of the Eleventh Circuit. Last month, he authored two employment decisions, Bost v. Federal Express Corp. (11th Cir. June 8, 2004) and Wilson v. B/E Aerospace, Inc. (11th Cir. June 30, 2004) . And how, may we ask, did the employees do?

In Bost, a putative ADEA collective action challenging FedEx's policies (allegedly adverse to its older couriers) died of excess procedure. Three groups of plaintiffs proceeded against the company: a group of five plaintiffs who (between them) filed seven EEOC charges, but suffered dismissal in a prior case (Freeman); a second group of plaintiffs (including Bost) who intervened in Freeman and filed an amended complaint, but did not file formal EEOC charges prior to commencing their civil action; and a third group of four current employees (who likewise filed no charges) who filed consents to join the collective action. The district court granted defendant's Fed. R. Civ. P. 12(b)(6) motion against the first group on res judicata grounds, and the second and third groups on the ground that no one had filed a timely charge prior to commencing suit.

Success for the plaintiffs hinged on persuading the Court that either the previously-filed Freeman charges or an intake questionnaire signed by plaintiff Bost supported the federal ADEA action. (Parallel state law claims under the Florida Civil Rights Act were deemed forfeited below.) Unfortunately, the 90-day filing period upon the right-to-sue letters for the Freeman plaintiffs had expired two years before, and the district court and court of appeals found no grounds for equitable tolling. So everything depended on the intake questionnaire prepared by plaintiff Bost. The intake interview was not a formal charge, but included a six-page affidavit laying out the claims of discrimination. It transpired that Bost later filed a formal charge, but a month after he commenced his lawsuit.

The Eleventh Circuit had previously held on other occasions that an intake interview form could meet the conditions of a "charge" for limitations purposes. But in this case, the panel affirmed the district court's decision that Bost's form should not be so regarded. The intake interview was not passed along to FedEx. Bost did not allege that he was misinformed by the EEOC about the status of his claim. The intake interview form itself stated in a disclaimer that it was not a charge. But the most damning evidence according to the panel was that, yes, Bost eventually did file a charge, albeit too late to rescue the current litigation from dismissal -- "Bost clearly understood that the intake questionnaire was not a charge because he later filed a timely charge."

Only in hindsight it seems, Bost and his co-plaintiffs would have been better served by behaving like ostriches, filing no new charges and betting everything on the intake interview form. But what sensible plaintiffs' lawyer would have opted for such a course?

In Wilson, the employee netted a better result. This was a fairly garden-variety, individual Title VII promotion andtermination case. We shall skip the termination issue here (plaintiff was allegedly terminated for insubordination, and in the end she failed to generate evidence that the decision was gender-based), and proceed to the promotion claim. The company lacked a formal application process for vacancies at the vice president level, but plaintiff expressed an interest in an open spot (Site VP) to her Group Vice President, Roman Ptakowski. Plaintiff testified that Ptakowski told her that she was the "obvious candidate" for the job, and "even though women aren't typically in that type of position we'll see what happens when we throw your name out there to corporate." One of plaintiff's co-workers testified as well that Ptakowski said plaintiff was the "most qualified based on her accomplishments in the engineering department." Needless to say, a male candidate got the job instead, who the company argued was more qualified that Wilson.

While finding that the Group Vice President's statements did not constitute "direct evidence" of sex bias (and why we are still talking about "direct evidence" over a year after Desert Palace v. Costa is a mystery to me), the panel held that Ptkowski's statements, if credited, showed that the company did not sincerely believe that the male candidate was more qualified and that sex bias may have infected the decision. The wonder is not that Judge Pryor reached a "liberal" result (through a tortured pretext analysis that we will not replicate here), but how the district court got so turned around in the first place. Kudos to plaintiff's counsel for straightening things out on appeal.