Blog Post

O'Brien v. Johanns, No. 07-2274 (8th Cir. July 16, 2008); Carmona v. Southwest Airlines, No. 07-51071 (5th Cir. July 16, 2008)

Posted by: Paul Mollica
July 17, 2008
Topic: Daily Developments in EEO Law

Things have been quiet on the EEO for the past couple of weeks, but here's two decisions from yesterday: a racial hostile work environment/retaliation suit from the Eighth Circuit (summary judgment affirmed, natch) and a Railway Labor Act preemption case that went the plaintiff's way in the Fifth Circuit.

O'Brien v. Johanns, No. 07-2274 (8th Cir. July 16, 2008): This two-plaintiff, reverse-race harassment, constructive discharge and retaliation case plows little new ground, holding that the circumstances were simply not serious enough to affect terms and conditions of employment. Here is a summary of the employees' retaliation allegations, according to the complaint:

"Following Appellants' EEOC activity, Trice scrutinized Appellants' travel documents arising out of a training session they attended in San Diego, California and issued a memorandum stating that they had acted improperly in relation to their travel vouchers; did not allow Peterson to serve as acting state administrative officer though Manuel had designated her to do so; suspended O'Brien's DEU authority; sent partial files concerning the secretarial applicants to regional and national headquarters to be reviewed; did not allow O'Brien to attend a training session in Texas; failed to respond to Peterson's request to work from home in a sufficient manner; denied O'Brien a performance award; discussed suspending them; and attempted to institute disciplinary action against them. In addition to the discrete events described above, Appellants state, without specificity, that Trice: interfered with their work on a daily to weekly basis; embarrassed, isolated, and ostracized them; closely scrutinized and criticized their work; and increased their workload."

Even allowing that these activities may not serious enough to rise to harassment or constructive discharge -- and the Eighth Circuit standards are unusally hard -- the panel never analyzes separately whether the same events might under the Burlington Northern rubric have dissuaded a reasonable employee from engaging in a protected act. So the panel is -- take your pick -- (1) ratifying the district court's decision on this point (hardly the ideal of de novo review); (2) unwilling to trust the jury to decide it; or (3) just not in the mood to explain its reasons.

Carmona v. Southwest Airlines, No. 07-51071 (5th Cir. July 16, 2008): Occasionally you'll see a case like this, where the employer claims that a race or gender discrimination suit must be arbitrated under the RLA, by virtue of statutory preemption. The employee claimed violations of Title VII and the ADA, alleging that he was wrongfully terminated for excessive absenteeism. As the opinion reflects the dispute, "[b]y June 26, 2005, Carmona had exceeded the maximum of twelve points permitted under the CBA, making him subject to immediate termination from employment. As was Southwest's practice, however, its Houston Inflight Base Manager, Kevin Clark, held a fact-finding meeting with Carmona, another of Carmona's supervisors, and a representative of the Union to review Carmona's point total. Clark determined that Carmona had actually accumulated even more points than the twelve originally calculated. The following month, Southwest terminated Carmona's employment for excessive absenteeism."

The district court dismissed the claim on subject matter jurisdiction grounds, holding that enforcement of the CBA was a minor dispute wholly within the jurisdiction of RLA adjustment boards. But the Fifth Circuit reversed the jurisdictional ruling, holding that it would be unecessary for the district court to construe the CBA in order to decide the civil rights claims:

"Even though a court would have to refer to the CBA to consider fully each of the alleged acts of disparate treatment, there is no disagreement about how to interpret these provisions of the CBA that detail Southwest's procedures for assessing attendance, leave, discipline, and termination. Carmona's factual allegations that unexcused absences by female flight attendants went unpunished, that remarks of his supervisors regarding male employees were discriminatory, and that his chronic illnesses were the real reason he was fired, do not bring the meaning of any CBA provisions into dispute. He alleges that CBA procedures were applied in a discriminatory manner, not that CBA procedures were fundamentally discriminatory. Thus, consideration of the CBA as applied to Title VII and the ADA - not interpretation of the CBA itself - is what is required to resolve Carmona's claims."

The panel also reiterated that enforcement of statutory, not contractual, rights was at stake here:

"In addition, the realization that Carmona is seeking to enforce his federal statutory rights under Title VII and the ADA, not his contractual rights embodied in the CBA, bolsters the contention that Carmona's claims do not require CBA interpretation. Other circuits have held that claims grounded in federal statutory rights are generally not precluded by the RLA."

The court was forced to revisit and trim back a prior decision, Reece v. Houston Lighting & Power Co., 79 F.3d 485, 487-88 (5th Cir. 1996), which according to Southwest supported a broader premption rule, distinguishing it on the ground that the employee in that case directly challenged his CBA rights to promotion, seniority, and assignment to training programs.