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.

Hendricks v. Office of the Clermont County Sheriff, No. 06-4431 (6th Cir. Apr. 28, 2009); Hollimon v. Shelby County, No. 08-6035 (6th Cir. Apr. 28, 2009)
Posted by: Paul Mollica
April 28, 2009

One panel in the Sixth Circuit (Judges Boggs, Moore and Sutton) today affirms judgments and monetary awards for plaintiffs in two separate employment-discrimination cases -- including one that was tried pro se -- resulting in signed but (regrettably) non-precedential opinions.

Donlin v. Philips Lighting No. America Corp., No. 07-4060 (3d Cir. Apr. 23, 2009)
Posted by: Paul Mollica
April 24, 2009

In a Title VII failure-to-hire case, alleging gender discrimination, the plaintiff prevails at trial and preserves her win on appeal in the Third Circuit. The panel nonetheless vacates the make-whole relief, holding that the employee's own estimate of her back and front pay was inadmissible opinion testimony under Federal Rule of Evidence 701. Nonetheless, the panel reaffirms generous standards for awarding make-whole relief.

FedEx Home Delivery v. NLRB, No. 07-1391 (D.C. Cir. Apr. 21, 2009); Wolters Kluwer Financial Services, Inc. v. Scivantage, No. 07-2491 (2d Cir. Apr. 21, 2009); Arizona v. Gant, No. 07-542 (U.S. S. Ct. Apr. 21, 2009)
Posted by: Paul Mollica
April 21, 2009

Here's a significant decision from the D.C. Circuit declaring an "entrepreneurial" standard for the "independent contractor" test under the NLRA, in place of the multi-factor common-law test. Also, the Second Circuit affirms sanctions against national law-firm partner for breaching a protective order. And for a change of pace, a Fourth Amendment decision from the Supreme Court.

Wallace v. DTG Operations, Inc., No. 08-1474 (8th Cir. Apr. 17, 2009); Sangamon County Sheriffs Department v. The Illinois Human Rights Commission, No. 105517 (Ill. S. Ct. Apr. 16, 2009)
Posted by: Paul Mollica
April 17, 2009

We close the week with two huzzahs for progressive state-level employment law. The Eighth Circuit affirms a jury verdict for a retaliation plaintiff under Missouri state law, which affords a lower burden of causation than federal law. And the Illinois Supreme Court -- under that state's Human Rights Act -- sets a standard of strict liability for sex harassment by supervisors, even when they do not exercise direct control over the employment of the victim, improving broadly upon the Faragher and Ellerth standard.

Pinkerton v. Colorado DOT, No. 07-1494 (10th Cir. Apr. 16, 2009); A.V. v. iParadigms, No. 08-1424 (4th Cir. Apr. 16, 2009); In re Sony BMG Music Entertainment, No. 09-1090 (1st Cir. Apr. 16, 2009)
Posted by: Paul Mollica
April 16, 2009

Here's a hard-fought Title VII sex harassment and retaliation case, ended in the district court by summary judgment, and resulting in a split Tenth Circuit panel affirmance. The legal issues include how long an employee may wait to complain about supervisor harassment, and whether temporal proximity alone can support an inference of retaliation.

Also, two non-employment cases about the internet: in the Fourth Circuit, what can happen when a plausibly-aggrieved plaintiff overreaches in an investigation; in the First Circuit, still not ready for their close-up on Web 2.0.

Peyton v. Freds Stores of Arkansas, Inc., No. 08-2346 (8th Cir. Apr. 15, 2009); Brooks-Ngwenya v. Indianapolis Public Schools, No. 08-1973 (7th Cir. Apr. 15, 2009); Dwyer v. Ethan Allen Retail, Inc., No. 08-10005 (11th Cir. Apr. 15, 2009)
Posted by: Paul Mollica
April 15, 2009

Three plaintiffs whiff today in three different circuits: an ADA case in the Eighth Circuit dismissed on the ground that the employee was not a "qualified individual," a Title VII/Equal Pay Act case dismissed on res judicata grounds in the Seventh Circuit, and an unpublished Eleventh Circuit ADA case finding that the decision-maker was not a "cat's paw."

EEOC v. The Boeing Co., No. 07-16903 (9th Cir. Apr. 8, 2009)
Posted by: Paul Mollica
April 12, 2009

I was away for a long Easter weekend, separated from all electronics. Welcoming me on my return was this nice victory for the EEOC, reversing summary judgment for two claimants terminated in a reduction in force. The Ninth Circuit, in an unpublished opinion, sends these Title VII sex discrimination and retaliation claims back to the district court for a trial.

Wooten v. Federal Express Corp., No. 07-10555 (5th Cir. Apr. 7, 2009)
Posted by: Paul Mollica
April 08, 2009

Here's a genuine head-scratcher: a Fifth Circuit unpublished decision that essentially apologizes for affirming summary judgment in a Title VII race-association harassment case, laced with some fairly obnoxious facts.

Webb v. City of Philadelphia, No. 07-3081 (3d Cir. Apr. 7, 2009)
Posted by: Paul Mollica
April 07, 2009

A Muslim police officer loses her plea, under Title VII, to be allowed to wear a hijaab while on-duty. Although this particular case fails (possibly owing to a underdeveloped record), the Third Circuit opinion hints that the fight may not yet be over.

Hampton v. Ford Motor Co., No. 08-1346 (7th Cir. Apr. 6, 2009)
Posted by: Paul Mollica
April 06, 2009

Rewritten 4/8/09 to correct error The Seventh Circuit upholds a release of claims obtained though a routine severance package, over an employee's objection that her Title VII claim for harassment did not accrue until her right-to-sue letter arrived.

Cobbins v. Tennessee Dept. of Transp., No. 07-6491 (6th Cir. Apr. 3, 2009); Miller v. City of Canton, Ohio, No. 08-3163 (6th Cir. Apr. 3, 2009)
Posted by: Paul Mollica
April 03, 2009

The Sixth Circuit, in two unpublished decisions, sends cases back to the district court for trial. In the former case, it reverses a defense verdict where the district court excluded a Title VII plaintiff's strongest evidence on ultimately indefensible hearsay and relevancy grounds. In the latter, the panel remands a First Amendment/§ 1981/Ohio state law retaliation case, where the employer did "not dispute that it suspended [plaintiff] because of his speech" but said the "reason for the suspension was [his] failure to follow protocol rather than the content of the speech."

Wyatt v. Horkley Self-Serve, Inc., No. 08-35063 (9th Cir. Apr. 1, 2009); Bell v. Prefix, Inc., No. 07-2059 (6th Cir. Apr. 2, 2009)
Posted by: Paul Mollica
April 02, 2009

In unpublished decisions, the Ninth Circuit affirms a $466,250 judgment in a sex harassment case, and the Sixth Circuit remands an FMLA case for trial.

14 Penn Plaza LLC v. Pyatt, No. 07-581 (U.S. S. Ct. Apr. 1, 2009)
Posted by: Paul Mollica
April 01, 2009

In what will be seen, for now, as a set back for employee civil rights, the Supreme Court in a 5-4 decision -- 14 Penn Plaza LLC v. Pyatt -- holds that where a collective bargaining agreement clearly and unmistakably assigns statutory discrimination claims to arbitration, the employee in the bargaining unit loses the right to proceed with an individual civil action.

Walsh v. Bank of America, No. 08-2230 (3d Cir. Mar. 30, 2009); Hunt v. Imperial Merchant Services, Inc., No. 07-16418 (9th Cir. Mar. 31, 2009)
Posted by: Paul Mollica
March 31, 2009

The Third Circuit, in an unpublished decision, reverses summary judgment on an ADA/Pennsylvania Human Rights Act claim on the issue of whether the employee was (or was regarded by his employer as) "disabled" with Post-Traumatic Stress Disorder (PTSD). The Ninth Circuit affirms an interlocutory order by Judge Jenkins (of Dukes v. Wal-Mart fame) ordering defendant to pay the costs of notice in a Fair Debt Collection Practices Act class case.