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.

In re American Express Merchants` Litigation, No. 06-1871 (2d Cir. Jan. 30, 2009); King v. Vilsack, No. 08-1766 (8th Cir. Jan. 29, 2009); Schoen v. Freightliner LLC, No. 07-35336 (9th Cir. Jan. 29, 2009)
Posted by: Paul Mollica
January 30, 2009

Today, we get a most excellent decision from the Second Circuit striking out a "class action waiver" from an arbitration agreement in a huge case pitting retailers against the charge-card giant, AmEx. Two other decisions of note from yesterday, both pro-employee: An Eighth Circuit decision vacating a ADEA bench verdict for the USDA as clearly erroneous, and a Ninth Circuit unpublished decision reversing summary judgment under Oregon state civil rights law.

Birdyshaw v. Dillard's Inc., No. 08-12824 (11th Cir. Jan. 28, 2009); McGovern v. City of Philadelphia, No. 08-1632 (3d Cir. Jan. 28, 2009)
Posted by: Paul Mollica
January 28, 2009

Retaliation plaintiffs get a wake-up call -- after Monday's Crawford decision -- in an unpublished Eleventh Circuit decision. It reminds us that if an employee is not very specific about the basis of her workplace complaints, she may not be deemed to have "opposed" discrimination under Title VII. The Third Circuit joins other circuits, and against the Ninth Circuit, in holding that § 1981 does not create an alternative basis for liability against state actors.

Monteagudo v. Asociacion de Empleados del Estado Libre Asociado de Puerto Rico, No. 07-2341 (1st Cir. Jan. 26, 2009)
Posted by: Paul Mollica
January 27, 2009

It is not typical that an employee with a Title VII sex harassment claim fails to complain through HR, gets to trial, and wins anyway. Here's a case that shows how its done, with a verdict of $965,999 to show for plaintiff's effort.

Crawford v. Metropolitan Government of Nashville and Davidson Cty., No. 06-1595 (U.S. S. Ct. Jan. 26, 2009)
Posted by: Paul Mollica
January 26, 2009

Here's the first employment discrimination case of the Supreme Court term -- a 9-0 victory for plaintiffs, holding that engagement in an internal investigation of harassment constitutes "opposition" for purposes of the Title VII anti-retaliation section, 42 U.S.C. § 2000e-3(a).

EEOC v. Watkins Motor Lines, Inc., No. 08-2483 (7th Cir. Jan. 23, 2009)
Posted by: Paul Mollica
January 23, 2009

The EEOC wins reversal of a district court decision, and gets to enforce a subpoena to investigate a Title VII claim that a no-criminal-record hiring policy has a racial disparate impact.

Garner et al. v. Cuyahoga County Juvenile Court, No. 07-3602 (6th Cir. Jan. 22, 2009); Abraham v. Woods Hole Oceanographic Institution, No. 08-1655 (1st Cir. Jan. 22, 2009); Rambacher v. Bemus Point Cent. Sch. Dist., No. 07-4728 (2d Cir. Jan. 22, 2009); Young v. City of Syracuse, No. 07-4019 (2d Cir. Jan. 21, 2009)
Posted by: Paul Mollica
January 22, 2009

The Sixth Circuit affirms attorneys' fees -- in part -- against eight unsuccessful race discrimination claimants in Ohio and one of their lawyers. The First Circuit refuses to apply equitable tolling under Title VII, where the employee did not get notice of dismissal of his EEOC charge. And the Second Circuit thankfully reverses summary judgment in two unpublished cases, so I have a little good news to report.

Betton v. St. Louis County, Mo., No. 07-1634 (8th Cir. Jan. 16, 2009); EEOC v. Agro Distribution, LLC, No. 07-60447 (5th Cir. Jan. 15, 2009)
Posted by: Paul Mollica
January 16, 2009

The Eighth Circuit hides its light in a bushel, reversing summary judgment in a Title VII retaliation case by way of an unpublished decision. The EEOC takes it in the chin in the Fifth Circuit, with an award of defense fees and costs in an ADA case that went awry at the employee deposition.

Nolan v. Heald College, No. 07-15679 (9th Cir. Jan. 13, 2009)
Posted by: Paul Mollica
January 14, 2009

Here's a Ninth Circuit ERISA case that holds, in the wake of MetLife Ins. Co. v. Glenn, 128 S. Ct. 2343 (2008), that summary judgment ought to be harder to get in cases where a conflict of interest arguably contaminated the benefit decision.

Nasser v. AT&T Corp., No. 07-15845 (9th Cir. Jan. 12, 2009)
Posted by: Paul Mollica
January 13, 2009

By coincidence, for the second time in a week, a court of appeals files an unpublished opinion in a single-incident harassment case. The Ninth Circuit panel splits 2-1 on whether a "distasteful" skit lampooning the plaintiff created a hostile work environment.

Chapman v. Carmike Cinemas, No. 08-4043 (10th Cir. Jan. 12, 2009); Ricci v. DeStefano, No. 07-1428 (U.S. S. Ct. Jan. 9, 2009)
Posted by: Paul Mollica
January 12, 2009

The Tenth Circuit issues an unpublished decision reversing summary judgment in part in a single-incident sex-harassment case, involving a putative supervisor who committed criminal sexual assault at the workplace. And the U.S. Supreme Court picks up a racial hot-potato from the Second Circuit.

Meacham v. Knolls Atomic Power Laboratory, No 02-7378 (2d Cir. Jan. 7, 2009); Dieffenbach v. CIGNA, No. 08-1474 (3d Cir. Jan. 7, 2009)
Posted by: Paul Mollica
January 07, 2009

Meacham v. Knolls Atomic Power Laboratory, which the U.S. Supreme Court recently decided 7-1 for the employees, makes its third trip to the Second Circuit on remand. And befitting its history, in an unpublished order, the case must return once again to the district court -- possibly for yet another trial. And a facinating little ERISA preemption case turns up in the Third Circuit's non-precdential cache.

Jones v. Calvert Group, No. 07-1680 (4th Cir. Jan. 5, 2009); EEOC v. Serranos Mexican Restaurants, LLC, No. 07-16017 (9th Cir. Jan. 5, 2009)
Posted by: Paul Mollica
January 06, 2009

Just as we closed the year 2008 on an up-note, with a couple of appellate victories for employees, we begin 2009 with a reversal of summary judgment on a retaliation claim by the Fourth Circuit. It reaffirms an important exception to the charge-filing requirement -- that post-charge retaliation need not be the subject of a second EEOC charge -- which has been in doubt since National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). In the "bummer" category, an unpublished decision from the Ninth Circuit describes how the EEOC won a new trial order in a Title VII religious accommodation case, only to lose it with a switch of trial judges.

Anderson v. Jackson, No. 07-31008 (5th Cir. Dec. 30, 2008); Lewis v. Asplundh Tree Expert Co., No. 08-11771 (11th Cir. Dec. 30, 2008); Tsai v. Maryland Aviation, No. 07-1511 (4th Cir. Dec. 31, 2008)
Posted by: Paul Mollica
January 05, 2009

Leftovers from year's end 2008. The Fifth Circuit tosses class certification (in a post-Katrina case) on a ground heretofore unknown -- to me, anyway -- that the "the district court abused its discretion by certifying a class based on claims not pleaded in the complaint." Also, the Fourth and Eleventh Circuits come to different conclusions in two unpublished Title VII decisions about whether the district court erred in dismissing the cases without formally converting the motions to dismiss into motions for summary judgment under Fed. R. Civ. P. 56(c).