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.

Chadwick v. Wellpoint, Inc., No. 08-1685 (1st Cir. Mar. 26, 2009); Kirleis v. Dickie, McCamey & Chilcote, No. 07-3504 (3d Cir. Mar. 24, 2009)
Posted by: Paul Mollica
March 27, 2009

In my march to catch up with a week's worth of developments, here's a First Circuit "sex-plus" case for a mother of kindergarten-age triplets (and an eleven-year-old son), with summary judgment reversed, and a Third Circuit case where an order denying arbitration under a law-firm's by-law was affirmed.

Matthews v. Potter, No. 0801980 (7th Cir. Mar. 23, 2009); Demers v. Adams Homes of Northwest Fla., Inc., No 08-13044 (11th Cir. Mar. 20 , 2009); Kellerman v. UPMC St. Margaret, No. 08-1682 (3d Cir. Mar. 19, 2009)
Posted by: Paul Mollica
March 26, 2009

I am elated that, after a forced hiatus of nearly a week (owing to some weird editor glitch), we are finally back in business. So now we have a log-jam of recent cases to report: three decisions, three circuits, all substantially favoring employees, and all unaccountably "non-precedential."

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Posted by: Current User
March 21, 2009

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Durand v. The Hanover Insurance Group, No. 07-6468 (6th Cir. Mar. 18, 2009); Hackett v. Standard Insurance Co., No. 07-3166 (8th Cir. Mar. 19, 2009)
Posted by: Paul Mollica
March 19, 2009

Here's some end-of-the-week coverage about ERISA developments. The Sixth Circuit issues an excellent decision on the "futility" exception to the judicially-created exhaustion doctrine for benefit claims. The Eighth Circuit remands a denial of benefits claim in light of Metropolitan Life Insurance Co. v. Glenn, 128 S. Ct. 2343 (2008).

Douglas v. Preston, No. 07-5339 (D.C. Cir. Mar. 17, 2009); Zokari v. Gates, No. 07-6173 (10th Cir. Mar. 17, 2009)
Posted by: Paul Mollica
March 18, 2009

Does the refusal of an agency to nominate a federal employee for a prestigious presidential award constitute an "adverse employment action"? Does the refusal of a Nigerian employee to take lessons to improve hisEnglish necessarily constitute a "protected activity"? No, hold (respectively) the D.C. and Tenth Circuits, in decisions published yesterday.

Lizalek v. Invivio Corp., No. 08-3626 (7th Cir. Mar. 16, 2009)
Posted by: Paul Mollica
March 17, 2009

Fired for annoying his co-workers by addressing himself in the third person, Mr. Gary Lizalek brings suit under the religious reasonable-accommodation provision of Title VII. The Seventh Circuit, in this unpublished decision, proves unaccommodating.

Attachments:
08-3626.pdf

Harp v. Charter Communications, Inc., No. 07-1445 (7th Cir. Mar. 16, 2009); Prince-Garrison v. Maryland Department of Health, No. 08-1090 (4th Cir. Mar. 13, 2009)
Posted by: Paul Mollica
March 16, 2009

The Seventh Circuit affirms summary judgment in a Sarbanes-Oxley (SOX) case, holding that the plaintiff lacked an objectively reasonable basis for believing that her employer was engaged in unlawful behavior when it negotiated with a contractor over the size of its bill. A dissent is filed laying out a parallel, alternative version of events. The Fourth Circuit, in an unpublished opinion, reverses dismissal of a Title VII retaliation case at the pleadings stage.

Willnerd v. First National Nebraska, No. 07-3316 (8th Cir. Mar. 13, 2009); Graves v. UMB Bank Financial Corporation, No. 07-2901 (8th Cir. Mar. 13, 2009)
Posted by: Paul Mollica
March 13, 2009

Two ADA appeals in the Eighth Circuit, decided not on statutory arcana (into which so many ADA cases seem to descend), but on the basic issue about who a jury might believe. The first reverses summary judgment on straightforward grounds -- that there was enough in the record to doubt the genuineness of the employer's non-discriminatory explanation. The second went to trial, and the EEOC and employee lost; much of the Eighth Circuit's opinion (affirming the verdict) is occupied with the admissibility of scribbles on a notepad.

Morgan v. New York Life Insurance Co., No. 07-4186 (6th Cir. Mar. 12, 2009)
Posted by: Paul Mollica
March 12, 2009

The Sixth Circuit affirms a blow-out victory in an Ohio state-law age discrimination case, including a $6 million back-pay/compensatory award. But the court remands for an order of remittitur on a $10 million punitive award, holding that the highest number that would comport with due process is a 1:1 ratio with the compensatory award.

Hensman v. City of Riverview, No. 08-1454 (6th Cir. Mar. 11, 2009)
Posted by: Paul Mollica
March 11, 2009

A perpetually frustrating issue -- whether an employee has established sufficient "severe or pervasive" conduct to present a genuine issue of material fact for a Title VII hostile-work-environment claim -- divides the panel in this unpublished Sixth Circuit decision.

EEOC v. Bobrich Enterprises, No. 08-10162 (5th Cir. Mar. 6, 2009)
Posted by: Paul Mollica
March 09, 2009

One scarcely ever sees disability harassment cases under the ADA, let alone ones that go successfully to verdict. This unpublished Fifth Circuit decision affirms a $150,000 judgment against a Subway franchisee, $50,000 in compensatory damages and $100,000 in punitives.

Potter v. District of Columbia, No. 07-7163 (D.C. Cir. Mar. 6, 2009); Jones v. Bernanke, No. 08-5092 (D.C. Cir. Mar. 6, 2009)
Posted by: Paul Mollica
March 08, 2009

Two cases decided last Friday really tell us more about the state of summary judgment law in 2009 than about civil rights or anti-discrimination law per se. In the former case, the plaintiffs prevail on summary judgment, substantially (it seems) because of the city's tactical choices/blunders. In the latter case, the D.C. Circuit continues down its own road as the only circuit to hold that the ADEA/Title VII prima facie case becomes legally irrelevant once the employer proffers its legitimate non-discriminatory reason for its adverse action against the plaintiff.

Pagonakis v. Express LLC, No. 08-1753 (3d Cir. Mar. 5, 2009)
Posted by: Paul Mollica
March 06, 2009

We close the week with a plaintiff's ADA win in an unpublished Third Circuit opinion. The panel holds that the plaintiff presented a genuine issue of material fact in an ADA discrimination case about whether she could perform the essential functions of her job and whether she incurred an adverse employment action. On the latter issue, the court holds that denying a reasonable accommodation can itself be an "adverse" action.

Betts v. Costco Wholesale Corp., Nos. 07-2103/2217 (6th Cir. Mar. 5, 2009); Dotson v. Pfizer, Inc., No. 07-1920 (4th Cir. Mar. 4, 2009)
Posted by: Paul Mollica
March 05, 2009

Two cases today on damages following successful jury trials: (1) in the Sixth Circuit, a pyrrhic victory for three plaintiffs who hold on to their liability findings (for racial harassment under the Michigan Elliott-Larsen civil rights act), but lose all but nominal damages on appeal; and (2) in the Fourth Circuit, an FMLA plaintiff keeps all he won at trial and wins a remand for more relief.

Latino Officers v. The City of New York, No. 07-5293 (2d Cir. Mar. 4, 2009)
Posted by: Paul Mollica
March 04, 2009

A city agency that agrees, in a consent decree, that it "will not allow discrimination based on actual or perceived race, color, national origin, ethnicity or any other reason prohibited by federal, state or local law," does not -- according to the Second Circuit -- subject itself to contempt remedies if it should fall short of this aspiration.

Sahyers v. Prugh, Holliday & Karatinos, PL, No. 08-10848 (11th Cir. Mar. 3, 2009)
Posted by: Paul Mollica
March 03, 2009

Here's a head-snapper: attorney fees are denied outright in an FLSA case, despite an offer of judgment that expressly allows an award, because the defendants were partners in an law firm (along with the partnership itself). That is not the full story, but enough for a gander. . . .