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.

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.

Tucker v. Legacy Health Services, No. 07-4393 (6th Cir. Sept. 1, 2008)
September 01, 2008

This case shows the turn that things have taken in federal court since the advent of Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). Lesson: Pure notice-pleading alone will not protect a plaintiff from being knocked off the tracks right from the start.