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.

Lucas v. Duncan, No. 07-5264 (D.C. Cir. July 31, 2009); Neely v. Good Samartian Hospital, No. 07-4281 (6th Cir. Jul. 31, 2009)
Posted by: Paul Mollica
July 31, 2009

As the week and month roll to a close, we have the D.C. Circuit zapping a Rule 11 sanction entered sua sponte against a plaintiff's employment lawyer, holding that the district court itself misapprehended the law. The Sixth Circuit, in a tidy unpublished opinion, reverses a district court's decision enforcing a settlement, finding that the employee timely and validly revoked it.

Romero v. Allstate Ins. Co, No. 07-4460 (3d Cir. July 29, 2009); Winspear v. Community Development Inc., No. 08-2041 (8th Cir. July 29, 2009)
Posted by: Paul Mollica
July 29, 2009

The district courts in today's two decisions -- a multi-plaintiff ADEA and ERISA case in the Third Circuit (non-precedential), and a Title VII religious harassment case in the Eighth Circuit -- misapprehended their duty on a basic level to articulate and dispose of the claims/defenses before them, leading to reversal of summary judgment in both appeals.

Alsobrook v. UPS Ground Freight, Inc., No. 08-5285 (6th Cir. July 27, 2009)
Posted by: Paul Mollica
July 28, 2009

The Sixth Circuit holds that a fouled-up jury instruction in a Title VII/§ 1981 retaliation trial is not plain error in this non-precedential decision, though one of the panelists dissents.

Zakrzewska v. The New School, No. 09-0611 (2d Cir. July 27, 2009)
Posted by: Paul Mollica
July 27, 2009

The district court certified the following question to the Second Circuit: "does the affirmative defense to employer liability articulated in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), apply to sexual harassment and retaliation claims under section 8-107 of the New York City Administrative Code?" The Second Circuit now kicks the can to the New York Court of Appeals.

Casna v. City of Loves Park, Ill., No. 07-1044 (7th Cir. July 24, 2009)
Posted by: Paul Mollica
July 26, 2009

A plaintiff's success story in an ADA retaliation case: even a one-line retort in an argument with a manager, "Aren't you being discriminatory," may constitute protected opposition to discrimination. The Seventh Circuit reverses summary judgment and sends the case back for trial.

Lohman v. Duryea Borough, No. 08-3524 (3d Cir. July 23, 2009); Hohider v. UPS, Inc., No. 07-4588 (3d Cir. July 23, 2009)
Posted by: Paul Mollica
July 23, 2009

The Third Circuit drops two opinions today notable in their awful badness for civil rights litigation. The first holds that in setting a prevailing-party's reasonable attorney's fee under § 1988 (and by extension, many other fee-shifting statutes), a district court may consider as a factor that the plantiff turned down a courthouse-steps offer to settle. The second tosses class certification in a major piece of disability-rights litigation against UPS.

EEOC v. Central Wholesalers, Inc., No. 08-1181 (4th Cir. July 21, 2009); Lytes v. D.C. Water and Sewer Auth., No. 08-7002 (D.C. Cir. July 21, 2009)
Posted by: Paul Mollica
July 21, 2009

There's really been a drought of EEO opinions worth writing about lately, but today we get two: the Fourth Circuit reversing and remanding summary judgment in a Title VII race-and-sex harassment case brought by the EEOC, and the D.C. Circuit weighing in on whether the ADA Amendments Act is retroactive to pending cases (the answer will not surprise you).

Correa-Ruiz v. Calderon-Serra, No. 06-2578 (1st Cir. July 7, 2009); Donaldson v. CDB, Inc., No. 08-60666 (5th Cir. July 6, 2009)
Posted by: Paul Mollica
July 07, 2009

Firefighters ages 55 and over lose a round with the Commonwealth of Puerto Rico in this First Circuit case, which considers the criteria added by Congress in 29 U.S.C. § 623(j) and the effect of the Department of Health and Human Services's failure to enact implementing rules. The Fifth Circuit, in an unpublished decision, reverses summary judgment in a sex harassment case and addresses a recurrent issue under Title VII: weighing the impact of sexually-offensive remarks in the workplace not specifically addressed to the plaintiff.

Nettle v. Central Oklahoma American Indian Health Council, Inc., No. 08-6023 (10th Cir. July 1, 2009)
Posted by: Paul Mollica
July 02, 2009

A rare Title VII "color" discrimination case arises in this non-precedential Tenth Circuit appeal. Although the panel agrees unanimously to dismiss the retaliation and discrimination claims, it splits 2-1 (in the course of a 47-page opinion) over whether the employee's hostile work environment claim ought to go to trial.

Lee v. Kansas City Southern Ry., No. 08-30444 (5th Cir. June 30, 2009); McNamara v. Yellow Transportation, Inc., No. 08-2654 (8th Cir. July 1, 2009)
Posted by: Paul Mollica
July 01, 2009

Happy Canada Day! The Fifth Circuit sends a race discrimination case back for trial, after the district court applies a too-narrow test of "similarly-situated" to measure the plaintiff's prima facie test. The Eighth Circuit compels arbitration of Title VII and FMLA claims, finding that an employee at a call center who possibly facilitated shipping was not a "transportation" worker for purposes of the Federal Arbitration Act.