Blog Topic

Daily Developments in EEO Law

Ziskie v. Mineta, No. 06-2060 (4th Cir. Nov. 14, 2008); Alleyne v. American Airlines, No. 07-1386 (2d Cir. Nov. 17, 2008); Washington v. M. Hanna Construction Co., No. 08-20351 (5th Cir. Nov. 14, 2008)
November 17, 2008

Rough way to start the week: Winning ugly in a Title VII appeal in the Fourth Circuit, a blown limitations period in the Second Circuit, and a flubbed amendment to a Title VII complaint in an unpublished Fifth Circuit order.

Sampath v. Concurrent Tech Corp., No. 08-2370 (3d Cir. Nov. 13, 2008); Rund v. Charter Communications, Inc., No. 07-15595 (9th Cir. Nov. 14, 2008); Montgomery v. Chao, No. 07-5255 (D.C. Cir. Nov. 13, 2008)
November 14, 2008

Welcome to the sad, week-ending cavalcade of the hobbled and lame: three decisions (two unpublished) affirming summary judgment, none showing a glimmer of life on appeal.

EEOC vs. General Motors Corp., No. 07-60886 (5th Cir. Nov. 12, 2008); Ladner vs. Hancock Medical Center, No. 07-60802 (5th Cir. Nov. 12, 2008)
November 13, 2008

The Fifth Circuit issues two employee-friendly decisions -- one under Title VII, the other under the FMLA -- both on the same day, and who knew? In an act of judicial humility, they went unpublished.

Lightner v. City of Wilmington, No. 07-1442 (4th Cir. Nov. 3, 2008); Andonissamy v. Hewlett-Packard Co., No. 07-2387 (7th Cir. Nov. 7, 2008)
November 07, 2008

My regrets about the long delay between entries -- a raft of depositions and a presidential election intervened. In the hopes of making things up, here are two Title VII cases from this week, both defense wins and both with opinions that simply could not mean what they say (at least, I hope not).

Leister v. Dovetail, Inc., No. 07-2242 (7th Cir. Oct. 23, 2008)
October 23, 2008

Lightning strikes twice! For the second day in a row, Judge Richard Posner writes a decision affirming a judgment for an ERISA participant, and this time remands the plaintiff back for more relief on her cross-appeal. (And look for my editorial at the end of the post.)

Orth v. Wisconsin State Employees Union, Council 24, No. 07-2778 (7th Cir. Oct. 22, 2008)
October 22, 2008

To steal from the elderly, you don't have to lurk around the local check-cashing store with a lead pipe. In this Seventh Circuit ERISA case, a union and employer pulled a fast one on retirees by stealthily raising their contributions to their own medical benefits. The retirees fight back and win!

Allen v. Highlands Hospital Corp., No. 07-6414 (6th Cir. Oct. 21, 2008)
October 21, 2008

An ADEA disparate impact claim comes to grief in the Sixth Circuit.

Amrhein v. Health Care Service Corp., No. 07-1460 (7th Cir. Oct. 20, 2008)
October 20, 2008

A Seventh Circuit panel splits over whether an employee presented a circumstantial case of Title VII retaliation by evidence that a decision-maker uttered, fewer than two weeks before the employee's termination, that "if [the plaintiff] wanted to choose all of [her] days [off], then [she] should not have complained [about discrimination]in the first place," and that the plaintiff had "open[ed] up a can of worms." The majority holds that the evidence falls short, while the dissent would find at least a mixed-motive case presented by this record.

Chaudhry v. Nucor Steel, No. 07-3729 (7th Cir. Oct. 15, 2008)
October 16, 2008

The Seventh Circuit -- construing the detested Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007) -- draws a useful distinction between discrete acts, such as the denial of a raise, and an ongoing pattern of withholding business opportunities that could lead to a raise. The panel holds that the latter violation here should have survived a motion to dismiss.

Kellogg v. Energy Safety Services Inc., No. 07-8072 (10th Cir. Oct. 15, 2008)
October 15, 2008

The ADA Amendments Act, recently enacted to liberalize the definition of "disability," comes too late for Ireane Kellogg. The Tenth Circuit -- in a 2-1 decision -- vacates a jury verdict for the plaintiff, holding that the jury was misinstructed that driving is a "major life activity."

Tate v. Executive Management Services, Inc., No. 07-2575 (7th Cir. Oct. 10, 2008)
October 10, 2008

The Seventh Circuit grants judgment as matter of law against a plaintiff from an employer's appeal of a Title VII retaliation jury verdict. The panel ducks the debate about whether resisting a supervisor's sexual predation is a "protected activity," holding instead on the trial record that the employee didn't consider the behavior as unlawful "sex harassment."

Enica v. Principi, No. 06-2187 (1st Cir. Oct. 6, 2008)
October 07, 2008

The First Circuit reminds us in this federal employee case that under the Rehabilitation Act (as well as the ADA), good intentions and lack of animus are not enough when it comes to reasonable accommodations. Promising to make accommodations is not the same as carrying through.

EEOC v. Lee's Log Cabin, Inc., No. 06-3278 (7th Cir. Oct. 6, 2008)
October 06, 2008

With any luck, the recently-enacted ADA Amendments Act of 2008 -- with a mandate to construe the definition of disability "in favor of broad coverage" -- will put an end to calamities such as inflicted in this Seventh Circuit decision, where the panel majority affirms dismissal of an ADA case because the EEOC plead the wrong kind of disability: HIV infection instead of AIDS.

Martin v. Brevard County Public Schools, No. 07-11196 (11th Cir. Sept. 30, 2008)
September 30, 2008

There's been a dry spell in the circuits in the EEO field the past couple of weeks. This FMLA case impressed, though, as presenting a nice legal issue of whether "indifference" to an employee's use of leave time constitutes a legitimate reason for termination -- resulting in a rare win for an employee in the Eleventh Circuit.

Kelley v. City of Albuquerque, No. 05-2309 (10th Cir. Sept. 17, 2008)
September 17, 2008

This is rich: In a retaliation case that went to trial, the Tenth Circuit holds that it is a "protected activity" under the participation clause of § 704(a) of Title VII for a defense lawyer to represent an employer in a mediation.

Houston v. St. Joseph Regional Med. Ctr., No. 07-2197 and Germano v. Intl Profit Assoc., No. 07-3914 (7th Cir. Sept. 12, 2008)
September 13, 2008

Judge Diane Wood of the Seventh Circuit authors two EEO opinions, published the same day, reversing summary judgment for employers and remanding cases for trial: a hard-fought Title VII retaliation case (paired with a biting dissent by Judge Richard Posner), and an ADA disability hiring case that considers the admissibility of TRS (assisted) phone calls for the deaf.

EEOC v. Federal Express, No. 06-16864 (9th Cir. Sept. 10, 2008)
September 11, 2008

There is now a split in the circuits about whether the EEOC can continue to pursue an administrative subpoena on a charge after the agency issues a right-to-sue letter to the employee, and the employee commences a private action. The Fifth Circuit said "no" in EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997), but the Ninth Circuit, applying a more deferential standard to the EEOC's enforcement authority, disagrees.

Franzen v. Ellis Corp., No. 07-2009 (7th Cir. Sept. 10, 2008)
September 10, 2008

Too often in EEO cases, plaintiffs' lawyers treat the clients' damages as just an after-thought to liability. So in this ghastly FMLA decision, the plaintiff wins a jury verdict on liability but takes nothing in relief (not even attorney's fees and costs), in part because his lawyer failed to request nominal damages.

Davis v. Indiana State Police, No. 07-2543 (7th Cir. Sept. 3, 2008); Jenkins v. Winter, No. 07-2049 (8th Cir. Sept. 2, 2008); Whitman v. Mineta, No. 07-2049 (9th Cir. Sept. 8, 2008)
September 03, 2008

A cavalcade of employee victories -- a former police officer threads a loophole in the ADEA, 29 U.S.C. § 623(j)(2), exemption for law enforcement agencies in the Seventh Circuit; the Eighth Circuit straightens out a district court judge on an evidentiary issue; and a pro se flight data specialist enjoys a reversal of fortune in the Ninth Circuit owing to a recent Supreme Court decision.

Exelon Generation Company, LLC v. Local 15, International Brotherhood of Electrical Workers, AFL-CIO, No. 07-4065 (7th Cir. Sept. 2, 2008); McCarter v. Retirement Plan for the District Managers of the American Family Insurance Group, No. 07-4023 (7th Cir. Sept. 2, 2008)
September 02, 2008

On a single day when the Seventh Circuit releases 17 published opinions (a more typical weekly haul), there are two opinions about retiree benefits. These address, respectively, (1) whether a plan may make a limited-time offer to allow a departing employee to withdraw benefits in a lump sum; and (2) whether a union may arbitrate a claim concerning retiree benefits on behalf of retired employees.