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.

Perkins v. Silver Mtn. Sports Club, No. 07-4130 (10th Cir. Feb. 25, 2009); Snooks v. Duquesne Light Co., No. 08-1689 (3d Cir. Feb. 24, 2009)
Posted by: Paul Mollica
February 26, 2009

The Tenth Circuit affirms a $50,000 jury verdict for a plaintiff in an FMLA and Title VII pregnancy-discrimination case, finding that the employer blundered its after-acquired evidence defense. In an unpublished decision, the Third Circuit reverses summary judgment in a Title VII promotion case, finding irregularities in the promotion process that purportedly favored a white female candidate over the African-American male plaintiff.

Strickland v. UPS, Inc., No. 07-1082 (10th Cir. Feb. 24, 2009)
Posted by: Paul Mollica
February 25, 2009

A Tenth Circuit FMLA and Title VII case -- reversing judgment as a matter of law for the company -- presents notable issues about constructive discharge (in particular, whether an employee must intend to quit employment to establish such a claim) and the use of "not-me" evidence by management to blunt an inference of discrimination.

Homa v. American Express Co., No. 07-2921 (3d Cir. Feb. 24, 2009)
Posted by: Paul Mollica
February 24, 2009

In a post on January 30, 2009, there was a discussion of In re American Express Merchants` Litigation, No. 06-1871 (2d Cir. Jan. 30, 2009), an antitrust case that tossed a class-action waiver imbedded in an arbitration clause. Today, the Third Circuit issued a decision -- again, involving AmEx -- allowing a putative class of consumers to attack another such waiver as unconscionable under New Jersey law.

Barrett v. Whirlpool Corp., No 08-5307 (6th Cir. Feb. 23, 2009)
Posted by: Paul Mollica
February 23, 2009

The Sixth Circuit delves into the issue of employer liability (under Title VII and § 1981) for harassment of white employees who associate with African-American employees. Although the panel announces a plaintiff-friendly standard, it nonetheless winds up affirming summary judgment for all but one of the employees.

Allmond v. Akal Security Inc., No. 07-15561 (11th Cir. Feb. 20, 2009)
Posted by: Paul Mollica
February 20, 2009

The week ends with the Eleventh Circuit upholding a hearing-aid ban for federal court security officers as a "business necessity" under the Rehabilitation Act and the Americans with Disabilities Act.

Brady v. Dow Chemical Company Retirement Board, No. 07-2040 (4th Cir. Feb. 18, 2009)
Posted by: Paul Mollica
February 19, 2009

In this unpublished ERISA decision from the Fourth Circuit, the Court does a masterful job navigating the complexities of the notice requirements of 29 U.S.C. § 1054(h), as amended in 2001, and affirms summary judgment for the participant, who did not receive notice of a change in his pension calculation that cost him thousands of dollars a year.

Duron v. Albertsons LLC, No. 07-30290 (5th Cir. Feb. 17, 2009); LULAC of Texas vs. State of Texas, No. 08-50581 (5th Cir. Feb. 17, 2009); Ahlmeyer v. Nevada System of Higher Ed., No. 06-15654 (9th Cir. Feb. 18, 2009)
Posted by: Paul Mollica
February 18, 2009

The Fifth Circuit hands a procedural win to a Title VII plaintiff (with an assist from the EEOC as amicus), on a timing issue over receipt of the right-to-sue letter. On the same day, the court also enters an unpublished order (with a partial dissent) on a potentially far-reaching civil rights dispute under the Voting Rights Act. And the Ninth Circuit nixes an age discrimination case filed against a state agency under 42 U.S.C. § 1983.

Semsroth v. City of Wichita, No. 08-3143 (10th Cir. Feb. 17, 2009); Watts v. Services for the Underserved, No. 07-2730 (2d Cir. Feb. 17, 2009)
Posted by: Paul Mollica
February 17, 2009

Not much going on after the President's Day break. The Tenth Circuit considers whether an initial denial of a transfer (later revoked) constitutes a materially adverse action that "could well dissuade a reasonable worker from making or supporting a charge of discrimination" under Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006). A district court's hasty dismissal of a pro se Title VII complaint leads to a reversal in an unpublished decision from the Second Circuit.

Rohr v. Salt River Project, No. 06-16527 (9th Cir. Feb. 13, 2009)
Posted by: Paul Mollica
February 13, 2009

Despite that the the ADA Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325, 122 Stat. 3553 (2008), will eventually render such decisions unnecessary, here's a good case that reverses summary judgment involving an insulin-dependent employee who is able to establish both that he is "disabled" under ther pre-amendment ADA and that he was a "qualified individual." And the panel suggests a way in which the ADAAA may help even those whose claims fall prior to the effective date.

Hamilton v. General Electric Company, No. 08-5023 (6th Cir. Feb. 12, 2009)
Posted by: Paul Mollica
February 12, 2009

An employee on a Last Chance Agreement has a lunchroom run-in with his bosses and gets himself fired. In the ensuing Kentucky state-law retaliation case, is there a triable issue of fact that the termination happened because the employee filed a charge of age discrimination with the EEOC (the majority opinion), or was it motivated -- as a matter of law -- by a long history of screw-ups by the plaintiff (the dissent)?

Jenkins v. National Board of Medical Examiners, No. 08-5371 (6th Cir. Feb. 11, 2009)
Posted by: Paul Mollica
February 11, 2009

This unpublished Sixth Circuit decision, concerning a Title II case under the ADA, becomes the first federal appellate case to hold that the Americans With Disabilities Amendment Act of 2008 applies to cases seeking prospective relief, even if the original violation occurred before the effective date of the Act.

EEOC v. University of Louisiana, No. 08-30327 (5th Cir. Feb. 9, 2009)
Posted by: Paul Mollica
February 10, 2009

Here's a defense worthy of lawyers who slept (or browsed the Web) during their Federal Courts classes at law school. To wit, that the Eleventh Amendment immunity that states enjoy against private lawsuits for damages somehow also applies to suits by the federal government. The Fifth Circuit schools them in seven short pages.

Smith v. Potter, No. 08-10393 (11th Cir. Feb. 3, 2009)
Posted by: Paul Mollica
February 03, 2009

Another good decision from the Eleventh Circuit, reversing summary judgment in an ADEA case on timing grounds, is (regrettably) released under the "Do Not Publish" banner.

Eshelman v. Agere Systems Inc, No. 05-4895 (3d Cir. Jan. 30, 2009); EEOC v. Lee's Log Cabin, Inc., No. 06-3278 (7th Cir. Feb. 2, 2009) (dissent from denial of rehearing en banc)
Posted by: Paul Mollica
February 02, 2009

In the course of an otherwise (merely) good ADA decision, affirming a $200,000 jury verdict for a plaintiff undergoing chemotherapy and suffering memory loss (under a "regarded as"/"record of" theory), the panel drops in something exquisite -- a make-whole award that includes a gross-up for income taxes.