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.

Mora v. Jackson Memorial Hospital, No. 08-16113 (11th Cir. Feb. 23, 2010); Brown v. Alabama Department of Transportation, No. 08-14371 (11th Cir. Feb. 23, 2010)
Posted by: Paul Mollica
February 23, 2010

Plaintiffs chalk up two, at least partial, wins in the Eleventh Circuit. In the first, an ADEA case, a per curiam decision (reversing summary judgment) goes to show that the Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009), decision had some negative repurcussions for employers, as well as employees. In the second, a thorough, 53-page opinion affirms a plaintiff's Title VII trial victory on three of nine counts in a promotion case, though reversing the balance of the judgment, and remanding to the district judge for a new backpay and injunctive remedy.

Gorzynski v. JetBlue Airways Corp., No. 07-4618 (2d Cir. Feb. 19, 2010)
Posted by: Paul Mollica
February 21, 2010

A three-fer for employment discrimination plaintiffs, from the Second Circuit: (1) If the supervisor is also the harasser, telling him to bug off might be enough to defeat the Faragher/Ellerth defense. (2) The court recognizes an age-plus-sex case under the ADEA, and observes that a plaintiff need not necessarily have to plead it in the complaint to survive summary judgment. (3) A gap as long as two to three months between a protected activity and termination might still support an inference of retaliation.

Ragone v. Atlantic Video, No. 08-4666 (2d Cir. Feb. 17, 2010); DeRosa v. National Envelope Corp., No. 08-2562 (2d Cir. Feb. 17, 2010)
Posted by: Paul Mollica
February 17, 2010

Today, a pair of Second Circuit opinions: the first affirming an order compelling arbitration of a Title VII, state- and NYC-law sex harssment and retaliation case, but with an asterix; and the other reversing summary judgment in an ADA case, where the district court erroneously applied the rule of judicial estoppel to a state disability benefit form.

Schuler v. PricewaterhouseCoopers, LLP, No. 08-7115 (D.C. Cir. Feb. 16, 2010); Reinhardt v. Albuquerque Public Schools, No. 09-2005 (10th Cir. Feb. 16, 2010)
Posted by: Paul Mollica
February 16, 2010

The D.C. Circuit, in the first published opinion in the U.S. Courts of Appeals construing the scope of the Lilly Ledbetter Fair Pay Act coverage -- i.e., "compensation decision or other practice" -- finds that the denial of a promotion does not constitute an "other practice." Nonetheless, while affirming summary judgment under the ADEA on timing grounds, the panel remands the case under the New York Human Rights Law. The Tenth Circuit reverses summary judgment and remands a Rehabilitation Act retaliation case for trial.

Risk v. Burgettstown Borough, Pa., No. 08-4746 (3d Cir. Feb. 12, 2010); Worldwide Network Services, Inc. v. DynCorp International, LLC, No. 08-2108 (4th Cir. Feb. 12, 2010)
Posted by: Paul Mollica
February 15, 2010

Two significant civil rights decisions were issued by U.S. Courts of Appeals on Friday, though unpublished, upholding jury verdicts for an employee who wanted to wear a cross pin on his uniform (under the First Amendment), and against a defense company that dropped a subcontractor because of racial animus (under § 1981).

Robinson v. Cavalry Portfolio Svcs, LLC, No. 08-5020 (10th Cir. Feb. 10, 2010)
Posted by: Paul Mollica
February 10, 2010

This unpublished decision, overturing a jury verdict for the plaintiff in a Title VII retaliation case and directing entry of judgment for the employer, highlights a gap in the statutory scheme in need of re-thinking: that the anti-retaliation section seemingly does not protect an employee who cooperates in the investigation of a single incident of co-worker harassment.

Turner v. The Saloon, Ltd., No. 07-2449 (7th Cir. Feb. 8, 2010)
Posted by: Paul Mollica
February 08, 2010

Though the Seventh Circuit long ago affirmed under National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), that evidence of pre-charge harassment is admissible to prove a Title VII hostile-work-environment claim (see West v. Ortho-McNeil Pharmaceutical Corp., 405 F.3d 578, 95 FEP 961 (7th Cir. 2005)), it occasionally has to remind the district court judges of this rule, as in this female-on-male harassment case.