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.

Conti v. American Axle & Manufacturing, Inc., No. 08-1301 (6th Cir. May 22, 2009)
Posted by: Paul Mollica
May 27, 2009

Apparently foresaken by a district court judge, a magistrate and even her former law firm, Ms. Conti fights back and -- in an unpublished, 2-1 decision of the Sixth Circuit -- wins reversal of summary judgment on her Michigan state law Elliott-Larson sex discrimination/retaliation claim and Equal Pay Act claim. Among the notable issues presented was whether the district court abused its discretion when it denied the plaintiff leave to depose the employer's CEO.

Gallagher v. C. H. Robinson Worldwide, Inc., No. 08-3337 (6th Cir. May 22, 2009); Sassaman v. Gamache, No. 07-2721 (2d Cir. May 22, 2009)
Posted by: Paul Mollica
May 22, 2009

In an apparent re-run of Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139 (11th Cir. 2008), the same employer finds itself on the griddle again for sex harassment -- this time in Cleveland, Ohio -- with the Sixth Circuit reversing summary judgment on the same grounds as the Eleventh. The Second Circuit, meanwhile, gives us "sex stereotyping" of a different stripe: a male commissioner firing another male, allegedly because the commissioner believed that men were habitual sex harassers.

Lafata v. Church of Christ Home, No. 07-2314 (6th Cir. May 20, 2009); Keck v. Graham Hotel Systems Inc., No. 08-2024 (6th Cir. May 20, 2009); Cobbins v. Tennessee Dept. of Transp., No. 07-6491 (6th Cir. Apr. 2, 2009)
Posted by: Paul Mollica
May 21, 2009

Three cheers from the Sixth Circuit -- reversing summary judgment in a section 1981 and state law case about a hotel failing to rent a ballroom for an African-American couple's nuptuals; reversing summary judgment in an unpublished decision under the ADA and FMLA; and filing as "published" a previously non-precedential decision, reversing an adverse trial outcome for the plaintiff in a Title VII case.

Ashcroft v. Iqbal, No. 07-1015 (U.S. S. Ct. May 18, 2009)
Posted by: Paul Mollica
May 19, 2009

The Supreme Court, 5-4, kicks up the Fed. R. Civ. P. 8 pleading standards a notch in this First and Fifth Amendment Bivens action against the former Attorney General and the head of the FBI. After today, civil rights plaintiffs will have to be more thoughtful about how they frame their complaints to avoid pleading themselves out of court.

AT&T Corp. v. Hulteen, No. 07-543 (U.S. S. Ct. May 18, 2009)
Posted by: Paul Mollica
May 18, 2009

In a setback for retirement-age female employees -- whose pre-1979 pregnancy leave is sometimes counted for less in benefit calculations than other kinds of leave -- the Supreme Court rules 7-2 that the counting rule does not violate the Pregnancy Discrimination Act. Justice Souter, who signed the opinion, draws up a narrow rationale that should do minimal damage to the Title VII field (and draw less Congressional attention than Ledbetter): that application of the rule falls within the exclusion of §703(h) for bona fide seniority programs.

Drum v. Leeson Electric Corp., No. 08-1678 (8th Cir. May 15, 2009); Duffett v. LaHood, No. 07-1831 (2d Cir. May 15, 2009)
Posted by: Paul Mollica
May 15, 2009

To end the week, here's a notably progressive decision from the Eighth Circuit construing the "factor other than sex" defense under the Equal Pay Act, as adopted by Title VII. And a Rehabilitation Act trial results in an adverse jury verdict finding that the employee, an air traffic controller, was not regarded as substantially limited the major life activity of "work."

Franklin v. Local 2 of the Sheet Metal Workers Intl. Assoc., No. 08-2707 (8th Cir. May 13, 2009); Bragg v. Flint Board of Education, No. 08-1632 (6th Cir. May 13, 2009); Knatt v. Hopital Dist. No. 1, No. 07-31027 (5th Cir. May 12, 2009)
Posted by: Paul Mollica
May 13, 2009

Three more decisions for the merry month of May: a split outcome in the Eighth Circuit, affirming a bench verdict in favor of the union on a disparate impact theory but remanding a retaliation claim for trial; a very brief decision in the Sixth Circuit, affirming summary judgment on claim preclusion grounds; and an elaborate unpublished decision in the Fifth Circuit, with a dissent, expending some 30 pages over whether the plaintiff adequately alleged a § 1983 direct-evidence, race discrimination claim.

Gregory v. Dillards Inc., No. 05-3910 (8th Cir. May 12, 2009) (en banc)
Posted by: Paul Mollica
May 12, 2009

After some four years on appeal and two oral arguments, this retail discrimination case is finally decided by the Eighth Circuit, with the plaintiffs on the losing side. By a 6-5 vote, the court entirely dispatches this case to state court, holding that there is no federal-law remedy -- at least, under § 1981 -- for racially-biased surveillance in a department store.

Ryl-Kuchar v. Care Centers, Inc., No. 08-2688 (7th Cir. May 11, 2009); Franklin v. California Youth Authority, No. 07-55824 (9th Cir. May 11, 2009)
Posted by: Paul Mollica
May 11, 2009

News on the EEO beat has been a little thin lately, but here are two affirmances today of jury verdicts for plaintiffs: an FMLA interference/retaliation case from the Seventh Circuit, and a Title VII retaliation case (in an unreported opinion) from the Ninth Circuit.

Reed v. Intl. Union, UAW, No. 07-2505 (6th Cir. May 7, 2009); Della Ferra v. Potter, No. 08-3817 (3d Cir. May 4, 2009)
Posted by: Paul Mollica
May 07, 2009

A Title VII religious accommodation claim -- by a conscientious objector to paying union dues -- results in three separate opinions and no clarity in the Sixth Circuit. In the Third Circuit, an unpublished opinion appears confused over the difference between "opposition" and "participation" in the anti-retaliation sections of Title VII and the ADEA.

Cochran v. Holder, No. 07-1888 (4th Cir. May 4, 2009); Phillips v. Gates, No. 07-3515 (6th Cir. May 5, 2009)
Posted by: Paul Mollica
May 05, 2009

Here are two federal-sector cases to chew on. The Fourth Circuit considers whether the 90-day trigger for filing a civil action against a federal agency accrues anew under 42 U.S.C. § 2000e-16(c) and 29 C.F.R. § 1614.405(b) when the party files a timely motion to reconsider. It holds in favor of the employee. The Sixth Circuit considers a rare judgment following a Title VII disparate impact trial, affirming a victory for the Department of Defense.

Doyle v. City of Medford, No. 07-35753 (9th Cir. May 4, 2009); Bove v. City of Medford, No. 08-35091 (9th Cir. May 4, 2009)
Posted by: Paul Mollica
May 04, 2009

A panel of the Ninth Circuit decides the same case -- challenging a town's cancellation of retiree health care for its employees -- three different ways in three separate opinions. In the first, the panel certifies for the Oregon Supreme Court the issue of whether rescinding the insurance violated state law. In the second, it orders dismissal of a challenge to the policy by still-employed plaintiffs on ripeness grounds. In the third and unpublished decision, a federal ADEA claim is remanded for further discovery, which the panel holds was prematurely denied by the district court.

Palmer v. Salazar, No. 05-1075 (10th Cir. Apr. 29, 2009) ; Gerving v. Opbiz, LLC, No. 07-16822 (9th Cir. Apr. 29, 2009)
Posted by: Paul Mollica
May 03, 2009

Two notable, though unpublished, opinions came down last Thursday. The Tenth Circuit holds that federal district courts have subject-matter jurisdiction to review federal-employee settlement agreements with the government, at least for claims arising under the ADEA. The Ninth Circuit reverses summary judgment in a case involving a Title VII caregiver-discrimination claim.

Desmond v. Charles Town Gaming, L.L.C., d/b/a Charles Town Races & Slots, No. 08-1216 (4th Cir. Apr. 30, 2009); Buonanoma v. Sierra Pacific Power Co., No. 05-17195 (9th Cir. Apr. 29, 2009)
Posted by: Paul Mollica
April 30, 2009

One of the things we like about employment law is that we get to learn what other people do for a living, and this Fourth Circuit FLSA case opens a door into a world of work in the gaming industry. The Ninth Circuit, in an unpublished decision, reverses summary judgment in an age and sex discrimination case.