Blog Post

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
Topic: Daily Developments in EEO Law

The district courts in today's two decisions -- a multi-plaintiff ADEA and ERISA case in the Third Circuit (non-precedential), and a Title VII religious harassment case in the Eighth Circuit -- misapprehended their duty on a basic level to articulate and dispose of the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.

Romero v. Allstate Ins. Co, No. 07-4460 (3d Cir. July 29, 2009): Three consolidated appeals presented claims of age discrimination, ERISA anti-cutback and ADEA retaliation (by the EEOC) stemming from Allstate's year 2000 decision to convert its employee agents into "independent contractors."

According to the opinion, the cases bogged down in the district court from 2001 when they commenced until the fateful day in 2007 when plaintiffs' counsel petitioned the Chief Judge of the district "to reassign the cases because of the District Court's ongoing failure to act on pending motions" (to dismiss, for summary judgment, to compel and for reconsideration). The judge with the pending cases promptly issued summary orders granting all pending dispositive motions against plaintiffs, and one order revoking a prior decision that went the plaintiffs' way (concerning the validity of Allstate's releases, i.e., whether they were "knowing and voluntary").

The Third Circuit not only reverses the preremptory orders but, with the mandate, reassigns the cases to a new judge. On the release issue -- the threshold question squarely raised by the appeal -- the panel remands with specific instructions on how to proceed:

"We believe the District Court should reexamine the validity of the release, after allowing further discovery into the facts surrounding the signing of the releases. The plaintiffs had a relatively short period of class discovery, and approximately half of the documents Allstate produced were documents from the Isbell litigation [a parallel case in the Seventh Circuit]. While Isbell is certainly relevant to the plaintiffs' cases here, the plaintiffs are entitled to discovery that is responsive to their requests related to the specific release-related issues the plaintiffs raised with the District Court in their response to its March 21, 2007, Order: that the releases were part of an illegal scheme; that they were not signed knowingly or voluntarily; and that they were unconscionable."

The panel observes that if the releases are valid, then the cases will substantially come to an end, but otherwise -- if held invalid -- the new judge would need to cut hrough the old thicket. Here the panel reposes trust in the lawyers: "We are confident that on remand the parties can spell these out for the District Court, as they have done for us on appeal, including the plaintiffs' claim that discovery as to these issues and the release should be permitted"

Winspear v. Community Development Inc., No. 08-2041 (8th Cir. July 29, 2009): Here's an especially painful set of facts, sensitively conveyed by the majority opinion:

"Winspear's brother, Logan, had committed suicide. Winspear had been close to Logan. He refers to Logan as his best friend and only 'real' family member. His close relationship with Logan was due in part to the brothers' difficulties with their strict religious upbringing and their respective rejections of organized religion. Winspear spent years grieving for his brother and was nearly incapacitated by his brother's suicide. Winspear became so distraught that he contemplated suicide himself."

Winspear worked for CDI. CDI's co-owner (Charles Schneider) and his wife (Lana Sierra) approached Winspear at work and, according to the summary judgment record, yanked at the wound:

"Sierra told Winspear that she had the ability to speak with the dead and that she had been communicating with Logan. She told Winspear that Logan wanted her to pass messages to him because Logan had been trying to contact Winspear, but Winspear had not been listening. She told Winspear that Logan had said that he was suffering in hell and that Winspear would also go to hell if he did not 'find God.' Winspear became very upset and asked Sierra not to speak about his brother. He then returned to his office where he sat and cried for an extended period of time. Throughout the rest of that day, Sierra repeatedly spoke to Winspear about her 'gift' of speaking to the dead, hugged Winspear, and told Winspear that she wanted to help him. Winspear told Sierra that she was crazy, he did not believe her, and she needed to stop. Nevertheless, Sierra continued to tell Winspear that he needed to "find God" so that he would not go to hell like Logan."

Sierra's entreaties continued daily for another three-and-a-half weeks. "After work, he would go home, contemplate suicide, and cry himself to sleep because Sierra's behavior caused him to relive the traumatic experience of his brother's suicide." When Winspear complained to Schneider, he "merely confirmed to Winspear that Sierra could communicate with the dead, advised Winspear to heed Sierra's advice, and told Winspear to keep Sierra's gift secret." Though the daily contact abated, Sierra still regularly approached Winspear about his supposed need to find God. Five months into this situation, Winspear quit.

The district court thought that Winspear's claim was for Title VII constructive discharge, and held that the employer's conduct did not rise to the unendurable level courts customarily require for that claim. But the panel majority (Melloy, J., writing for the panel) holds that the employee alleged hostile work environment, reversing summary judgment:

"Count One of Winspear's Complaint against CDI alleges that 'Defendant CDI violated Title VII of the Civil Rights Act of 1991 by creating a hostile work environment for [Winspear] on the basis of religion and by failing to take prompt remedial action to correct the hostile work environment." As a factual basis for this charge, it incorporates the Complaint's factual allegations, which relate almost exclusively to Sierra's conduct between January and August 2005. The Complaint itself does not allege constructive discharge-much less contain the words 'constructive discharge'-and the only factual allegation in the Complaint related to Winspear's resignation states, 'In August 2004 [sic] plaintiff resigned his employment with CDI.'"

The panel majority holds that so long as the complaint is clear, the defendant couldnot validly argue that the plaintiff somehow constructively amended the pleading to convert the claim to constructive discharge. And because the district court judge decided summary judgment under the wrong rubric, the case was remanded.

Nonetheless, two judges take different views of the future of the case. A concurring opinion by Judge Bowman says that the remand for consideration of harassment "is more than a legal formality. I read the District Court's comment in its order that 'Winspear may have raised a genuine issue of material fact' (emphasis added) on the question of a hostile work environment as acknowledging the possibility of a legally cognizable claim, not the certainty of one. In fact, I may ultimately agree with the dissent's legal conclusion in this case. But I believe it is within the province of the District Court to consider in the first instance, with the benefit of the full summary judgment record and using the correct legal analysis, whether Winspear has raised a triable fact question on his hostile-environment claim."

Finally the dissent (Judge Smith) would hold that the events described fall short of actionable harassment based on religion. Notably, the judge relies on the private nature of the behavior: "Winspear does not maintain that Sierra's alleged harassment occurred in front of others in an attempt to ridicule or demean him. In fact, the record demonstrates that Sierra always relayed her comments to Winspear in private and not around other coworkers. Sierra and Schneider even urged Winspear not to tell others about Sierra's 'gift' as a clairvoyant. While understandably offensive, the record reflects the conduct probably resulted from a misguided attempt to help Winspear rather than harass him and negatively impact his job status or job performance."

Actually, the private, isolating nature of the alleged harassment in my estimation makes Sierra's alleged harassment all the more pernicious, akin to cult indoctrination. But, in any event, the case gets a second life following appeal.