Blog Topic

Daily Developments in EEO Law

A running commentary (since 2004) on the follies and fortunes of employment discrimination law in the federal courts of appeal - with occasional detours, at the author's discretion.

Lockridge v. University of Southern Maine, No. 09-1895 (1st Cir. Mar. 10, 2010); Corbitt v. Home Depot U.S.A., Inc., No. 08-12199 (11th Cir. Mar. 10, 2010)
Posted by: Paul Mollica
March 10, 2010

The First Circuit holds that denial of an employee's request for office space may be a materially adverse action for purposes of a Title VII retaliation claim, though on the individual facts affirms summary judgment for the employer. The Eleventh Circuit grants en banc review in a sex harassment case, mere months after giving full-bench review to another harassment case.

EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School, No. 09-1134 (6th Cir. Mar. 9, 2010)
Posted by: Paul Mollica
March 09, 2010

The "Ministerial Exception," a First Amendment Free Exercise rule implied by federal courts into civil rights laws, gets another run around the block by the Sixth Circuit, which holds that a grade school teacher at a religious school who taught primarily secular subjects falls outside the exception and may pursue her claim under the ADA.

Brzak v. United Nations, No. 08-2799 (2d Cir. Mar. 2, 2010); Lake v. Yellow Transporation, Inc., No. 09-1392 (8th Cir. Mar. 2, 2010); Murphy v. Comer Oil U.S.A., No. 07-60756 (5th Cir. Feb. 26, 2010)
Posted by: Paul Mollica
March 02, 2010

The United Nations and its staff win immunity in a sex-discrimination lawsuit, the Eighth Circuit sends a race-discrimination case back for trial, and the Fifth Circuit sadly vacates a progressive panel opinion for rehearing.

Mora v. Jackson Memorial Hospital, No. 08-16113 (11th Cir. Feb. 23, 2010); Brown v. Alabama Department of Transportation, No. 08-14371 (11th Cir. Feb. 23, 2010)
Posted by: Paul Mollica
February 23, 2010

Plaintiffs chalk up two, at least partial, wins in the Eleventh Circuit. In the first, an ADEA case, a per curiam decision (reversing summary judgment) goes to show that the Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009), decision had some negative repurcussions for employers, as well as employees. In the second, a thorough, 53-page opinion affirms a plaintiff's Title VII trial victory on three of nine counts in a promotion case, though reversing the balance of the judgment, and remanding to the district judge for a new backpay and injunctive remedy.

Gorzynski v. JetBlue Airways Corp., No. 07-4618 (2d Cir. Feb. 19, 2010)
Posted by: Paul Mollica
February 21, 2010

A three-fer for employment discrimination plaintiffs, from the Second Circuit: (1) If the supervisor is also the harasser, telling him to bug off might be enough to defeat the Faragher/Ellerth defense. (2) The court recognizes an age-plus-sex case under the ADEA, and observes that a plaintiff need not necessarily have to plead it in the complaint to survive summary judgment. (3) A gap as long as two to three months between a protected activity and termination might still support an inference of retaliation.

Ragone v. Atlantic Video, No. 08-4666 (2d Cir. Feb. 17, 2010); DeRosa v. National Envelope Corp., No. 08-2562 (2d Cir. Feb. 17, 2010)
Posted by: Paul Mollica
February 17, 2010

Today, a pair of Second Circuit opinions: the first affirming an order compelling arbitration of a Title VII, state- and NYC-law sex harssment and retaliation case, but with an asterix; and the other reversing summary judgment in an ADA case, where the district court erroneously applied the rule of judicial estoppel to a state disability benefit form.

Schuler v. PricewaterhouseCoopers, LLP, No. 08-7115 (D.C. Cir. Feb. 16, 2010); Reinhardt v. Albuquerque Public Schools, No. 09-2005 (10th Cir. Feb. 16, 2010)
Posted by: Paul Mollica
February 16, 2010

The D.C. Circuit, in the first published opinion in the U.S. Courts of Appeals construing the scope of the Lilly Ledbetter Fair Pay Act coverage -- i.e., "compensation decision or other practice" -- finds that the denial of a promotion does not constitute an "other practice." Nonetheless, while affirming summary judgment under the ADEA on timing grounds, the panel remands the case under the New York Human Rights Law. The Tenth Circuit reverses summary judgment and remands a Rehabilitation Act retaliation case for trial.

Risk v. Burgettstown Borough, Pa., No. 08-4746 (3d Cir. Feb. 12, 2010); Worldwide Network Services, Inc. v. DynCorp International, LLC, No. 08-2108 (4th Cir. Feb. 12, 2010)
Posted by: Paul Mollica
February 15, 2010

Two significant civil rights decisions were issued by U.S. Courts of Appeals on Friday, though unpublished, upholding jury verdicts for an employee who wanted to wear a cross pin on his uniform (under the First Amendment), and against a defense company that dropped a subcontractor because of racial animus (under § 1981).

Robinson v. Cavalry Portfolio Svcs, LLC, No. 08-5020 (10th Cir. Feb. 10, 2010)
Posted by: Paul Mollica
February 10, 2010

This unpublished decision, overturing a jury verdict for the plaintiff in a Title VII retaliation case and directing entry of judgment for the employer, highlights a gap in the statutory scheme in need of re-thinking: that the anti-retaliation section seemingly does not protect an employee who cooperates in the investigation of a single incident of co-worker harassment.

Turner v. The Saloon, Ltd., No. 07-2449 (7th Cir. Feb. 8, 2010)
Posted by: Paul Mollica
February 08, 2010

Though the Seventh Circuit long ago affirmed under National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), that evidence of pre-charge harassment is admissible to prove a Title VII hostile-work-environment claim (see West v. Ortho-McNeil Pharmaceutical Corp., 405 F.3d 578, 95 FEP 961 (7th Cir. 2005)), it occasionally has to remind the district court judges of this rule, as in this female-on-male harassment case.

Dolgaleva v. Virginia Beach City Public Schools, No. 08-1515 (4th Cir. Jan. 29, 2010)
Posted by: Paul Mollica
January 29, 2010

Though the Fourth Circuit ultimately does the right thing in this unpublished opinion, vacating and remanding dismissal of a Title VII national-origin case at the complaint stage, it should throw a scare into plaintiffs'-side lawyers in federal court that a hearing on a Rule 12(b)(6) motion can be the occasion for a mini-trial on the merits.

Lowe v. Independent School District No. 1, No. 08-6231 (10th Cir. Jan. 25, 2010)
Posted by: Paul Mollica
January 25, 2010

In a decision recalling last year's Ekstrand v. School Dist. of Somerset, 583 F.3d 972 (7th Cir. 2009), the Tenth Circuit (in an unpublished opinion) reverses summary judgment and remands an ADA reasonable accommodation and constructive discharge case involving a school teacher who sought but did not receive a suitable classroom.

Lewis v. Heartland Inns of America, L.L.C., No. 08-3860 (8th Cir. Jan. 21, 2010)
Posted by: Paul Mollica
January 21, 2010

The Eighth Circuit joins other U.S. Courts of Appeals that have ruled on claims that an employer violated Title VII by imposing a sex-stereotyped stigma on a protected employee -- here, taking away a front-desk clerk's daytime hours because she supposedly dressed like Ellen DeGeneres and lacked the "Midwestern girl look." Summary judgment is reversed, on a 2-1 vote, and the case is remanded for trial.

Reeves v. C.H. Robinson Worldwide, Inc., No. 07-10270 (11th Cir. Jan. 20, 2010)
Posted by: Paul Mollica
January 20, 2010

A big win for harassment victims is issued today in the Eleventh Circuit, unanimously vacating summary judgment and returning for trial a Title VII claim that generalized hostility to women (such as raunchy talk and pornography in the workplace) may create a hostile work environment, even if not specifically targeted at a particular woman employee.

Serwatka v. Rockwell Automation Inc., No. 08-4010 (7th Cir. Jan. 15, 2010)
Posted by: Paul Mollica
January 15, 2010

It pains me to report that the Seventh Circuit today rules out mixed-motive liability under the ADA, citing Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009). It holds that 42 U.S.C. § 12117 incorporates into the ADA only the "powers, remedies, and procedures" of Title VII, and not the mixed-motive liability section of 42 U.S.C. § 2000e-2(m).

Wojcicki v. Aiken Technical College, No. 08-1469 (4th Cir. Jan. 11, 2010)
Posted by: Paul Mollica
January 12, 2010

Here's a modest success story for a pro se litigant who was denied leave to supplement the record on a motion to dismiss to demonstrate that he had met the administrative prerequisites for filing a Title VII, ADA and ADEA case.

Harrison v. Benchmark Electronics Huntsville, Inc. (BEHI), No. 08-16656 (11th Cir. Jan. 11, 2010)
Posted by: Paul Mollica
January 11, 2010

The Eleventh Circuit reverses summary judgment in a pre-employment medical inquiry case (42 U.S.C. § 12112(d)(2)), holding -- in matters of first impression for that court -- that this section is enforceable by a private right of action, that the plaintiff must present evidence of injury or loss, and that the pleading requirements for such a claim are modest. The case also demonstrates how an employer may get in trouble by asking one-too-many pesky questions about a positive blood test.

Kannady v. City of Kiowa, No. 07-7002 (10th Cir. Jan. 6, 2010)
Posted by: Paul Mollica
January 08, 2010

Plaintiffs' lawyers: do you know those clients who tell you that they took secret tape-recordings where the defendants admitted their age (or race or sex) bias? Here's a case where the plaintiff's recordings came back to bite him!

Myers v. Central Florida Investments Inc., No. 08-16291 (11th Cir. Jan. 6, 2010)
Posted by: Paul Mollica
January 06, 2010

The plaintiff wins a victory here on appeal -- she keeps a jury award of $103,622.09 in compensatory and $506,847.75 in punitive damages for her state-law battery claim, against one of the wealthiest real-estate magnates in Florida -- which is blemished only by the loss on her Title VII and Florida law sex harassment claim.

Stewart v. St. Elizabeths Hospital, No. 09-7013 (D.C. Cir. Jan. 5, 2010); Stanley v. Abacus Technology Corp., No. 08-2306 (10th Cir. Jan. 5, 2010)
Posted by: Paul Mollica
January 05, 2010

Two plaintiffs' cases (one under the Rehabilitation Act from the D.C. Circuit, the other under Title VII from the Tenth Circuit) founder on the same shortcoming: according to the employers, all the employees had to do was ask for accommodations, but they never did.