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.

Haybarger v. Lawrence County Adult Probation and Parole, No. 07-3720 (3d Cir. Dec. 31, 2008); Taylor v. UPS, Inc., No. 07-31000 (5th Cir. Dec. 31, 2008)
December 31, 2008

On the last day of 2008, the U.S. Courts of Appeals award two more wins to employees, on issues arcane and significant. In the Third Circuit, a panel holds that a division of the state judiciary in Pennsylvania waived its Eleventh Amendment immunity to suit in federal court, by accepting federal dollars for its domestic relations section unrelated to the plaintiff's employment. In the Fifth Circuit, a panel finds that the Title VII limitations period was tolled for a Louisiana manager aleging race discrimination and retaliation by the prior pendency of a Title VII class action in St. Louis.

In re Hydrogen Peroxide Antitrust Litigation, No. 07-1689 (3d Cir. Dec. 30, 2008); Mirfasihi v. Fleet Mortgatge, No. 07-3402 (7th Cir. Dec. 30, 2008)
December 30, 2008

We close the year with two class-action decisions -- not employment lawsuits (the allegations sound in federal antitrust and state consumer protection law), but signposts to where Rule 23 is headed for all of us. And Judge Posner gifts us with a definition of chutzpah.

McCauley v. First Unum Life Ins. Co., No. 06-5100 (2d Cir. Dec. 23, 2008); Champion v. Black & Decker, No. 07-1991 (4th Cir. Dec. 19, 2008)
December 29, 2008

Any hope that ERISA litigants would get clarity from the Supreme Court's decision last term in Metropolitan Life Insurance Co. v. Glenn, 128 S. Ct. 2343 (2008) -- construing the proper standard of review of a plan administrator's decision, in the light of a conflict of interest -- has been doused. Two opinions from different circuits, handed down the week before Christmas, arrive at differing destinations.

Woodruff v. School Bd. of Seminole County, No. 08-11798 (11th Cir. Dec. 19, 2008); Linder v. Potter, No. 07-35496 (9th Cir. Dec. 22, 2008)
December 22, 2008

Anyone care to explain why it is that the Eleventh Circuit so often consigns its even mildly pro-employee decisions to "do not publish" purgatory? Another unpublished decision, from the Ninth Circuit, gives second life to an ADA claim. Also, an idea for gift-giving -- courtesy of the Workplace Prof Blog -- and wishing you a peaceful holiday season!

EEOC v. Southwestern Bell Telephone, No. 08-1096 (8th Cir. Dec. 19, 2008); Carras v. MGS 782 Lex, Inc., No. 07-4480 (2d Cir. Dec. 19, 2008)
December 19, 2008

Well, this is definitely going to wreck some defense lawyers' holiday! The Eighth Circuit affirms a jury verdict in a Title VII religious accommodation case, solely on the ground that the defendant failed to renew its motion for judgment as a matter of law after the entry of judgment pursuant to Rule 50(b). The Second Circuit, in an unpublished decision, vacates and remands summary judgment in an age discrimination case.

Casamento v. MBTA , No. 08-1773 (1st Cir. Dec. 16, 2008); Bottenberg v. Carson Tahoe Hospital, No. 07-16103 (9th Cir. Dec. 15, 2008)
December 16, 2008

A Title VII duty-of-fair-representation case fizzles out in the First Circuit. And, courtesy of the Ninth Circuit, now I have a new rule of thumb for which kinds of clients not to take if they should walk through the door.

Hasan v. Foley & Lardner LLP, No. 07-3025 (7th Cir. Dec. 15, 2008); Poulson v. Publix Super Market, No. 07-15434 (11th Cir. Dec. 15, 2008)
December 15, 2008

In a decision from the Seventh Circuit, a big national law firm now faces a trial on a race/religion/national origin claim by an Indian Muslim associate fired in the wake of 9/11. The Eleventh Circuit reverses summary judgment against a pro se discrimination plaintiff in an unpublished order.

Oscarson v. Office of the Senate Sergeant at Arms, No. 07-5391 (D.C. Cir. Dec. 12, 2008); Dennis v. Osram Sylvania, Inc., No. 07-2670 (1st Cir. Dec. 10, 2008)
December 12, 2008

The D.C. Circuit dismisses an interlocutory appeal of a disability discrimination case under the Congressional Accountability Act ("CAA") on appellate jurisdiction grounds. The First Circuit concludes that Reeves v. Sanderson Plumbing Products Co. could not possibly mean what it says -- that, at the summary judgment stage, a court must disregard all evidence favorable to the moving party that the jury is not required to believe.

May v. Honeywell International Inc., No. 07-35480 (9th Cir. Dec. 10, 2008)
December 11, 2008

As occasionally noted here, state law statutory protections for employees can be more expansive than federal law. Here's a nice instance from the Ninth Circuit, an unpublished decision applying Washington state law to a disability reasonable accomodations case.

Comrie v. IPSCO, No. 08-3060 (N.D. Ill. Dec. 10, 2008)
December 10, 2008

In the category of blowing my own horn (just a little), in a case where I'm co-counseling in the U.S. District Court in the Northern District of Illinois, the district court delivers a decision of first impression on a neat ERISA question: are foreign labor and benefits contracts preempted? This judge holds that they are not.

Attachments:
MemorandumOpinionandOrder.pdf

Cumbie v. General Shale Brick, Inc., No. 07-1723 (4th Cir. Dec. 8, 2008); Fahim v. Marriott Hotel Services, Inc., No. 08-20349 (5th Cir. Dec. 8, 2008)
December 09, 2008

The Fourth Circuit issues -- unpublished -- a progressive Title VII retaliation decision, reaffirming its view that there is no "reasonableness" requirement for claims under the "participation" prong. The Fifth Circuit, in a previously nonprecedential decision, considers the standard for a Title II case under the Civil Rights Act of 1964.

Gross v. FBL Financial Services, Inc., No. 08-441 (U.S. S. Ct.); Landavazo v. The Toro Co., No. 08-50227 (5th Cir. Dec. 5, 2008)
December 08, 2008

The Supreme Court takes on another employment-discrimination case (adding to Hulteen, Pyatt and Crawford). The Fifth Circuit, meanwhile, issues a perplexing unpublished decision on pleading employment discrimination under Fed. R. Civ. P. 8.

McKnight v. General Motors Corp., No. 07-1479 (6th Cir. Dec. 4, 2008); Jackson v. UPS, Inc., No. 08-1343 (8th Cir. Dec. 4, 2008); King v. City of Madison, No. 08-2052 (7th Cir. Dec. 4, 2008)
December 04, 2008

Three dismal outcomes for plaintiffs: the Sixth Circuit holds that former employees lack standing under the ADA to sue for post-emploment fringe benefits; the Eighth Circuit reaffirms its rule that an employer that quickly retracts an adverse action can entirely avoid Title VII liability; and the Seventh Circuit just affirms an ordinary ADA summary judgment.

Brown v. Junction Pool Commons, Inc., No. 07-1378 (2d Cir. Dec. 2, 2008); Boyd v. Wilmington Police Dept., No. 07-1731 (3d Cir. Dec. 2, 2008)
December 02, 2008

Here are two judgments from jury trials, both affirmed entirely on appeal (in unpublished opinions from the Second and Third Circuits) and each containing a small nugget of insight.

Culpepper v. Johanns, No. 07-3824 (8th Cir. Dec. 1, 2008); Shiver v. Chertoff, No. 08-13024 (11th Cir. Nov. 26, 2008)
December 01, 2008

Here are two recent cases -- both reversing summary judgment -- that apply 29 C.F.R. § 1614.105(a)(1), which requires that an aggrieved federal employee "initiate contact with a[n agency EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action."