Blog Post

Ninth Circuit

Posted by: Paul Mollica
March 19, 2008
Topic: EEO Case Summaries by Circuit

Breiner v. Nevada Dep’t of Corrections, No. 09-15568 (9th Cir. July 8, 2009). Panel: BERZON, Noonan, Ikuta. Claims on Appeal: Title VII promotion (reverse sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Male plaintiffs had standing to challenge policy that allowed only women to become lieutenants at women’s prison, on the ground that they were discouraged from applying by the express, gender-discriminatory hiring policy and that at least one of the plaintiffs would have qualified for the position. District court erred in holding that the policy affected only three of the various lieutenant positions available throughout the system, and thus imposed only a de minimis impact on the plaintiffs' promotional opportunities. Denial of even a single promotion opportunity is actionable under Title VII, and whether there will be other promotional opportunities for which the person may become eligible is not a consideration. Panel also rejects the BFOQ defense. State proffered three reasons for the policy: “(1) male correctional lieutenants are likely to condone sexual abuse by their male subordinates; (2) male correctional lieutenants are themselves likely to sexually abuse female inmates; and (3) female correctional lieutenants possess an 'instinct' that renders them less susceptible to manipulation by inmates and therefore better equipped to fill the correctional lieutenant role.” First theory fails because state did not prove that “all or nearly all” men would tolerate sexual abuse by male guards, or that it is “impossible or highly impractical” to assess applicants individually for this qualification. As to second theory, there is no “basis in fact” for believing that individuals in the correctional lieutenant role are particularly likely to sexually abuse inmates. The third theory “relies on the kind of unproven and invidious stereotype that Congress sought to eliminate from employment decisions when it enacted Title VII” [citations omitted]. Prison had other wise to correct and prevent sexual abuse, such as enforcing existing rules more vigorously: “Where, as here, the problem is employee behavior, prison administrators have multiple resources, including background checks, prompt investigation of suspected misconduct, and severe discipline for infractions, to ensure compliance with institutional rules.”

EEOC v. Peabody Western Coal Co., No. 06-17261 (9th Cir. June 23, 2010). Panel: FLETCHER, Hug, Klienfeld. Claims on Appeal:  Title VII hiring (Indian). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: EEOC brought suit against mining company that leases mines from the Navajo Nation, and (under leases required by Interior Department) maintains a preference for employing Navajo workers at these mines. EEOC contends that the Indian preference exception of Title VII, § 2000e-2(i), permits discrimination in favor of Indians living on or near a particular tribe’s reservation, but does not permit discrimination against Indians who live on or near that reservation but are members of another tribe. District court erred in holding both (1) that the EEOC was seeking affirmative relief against the Nation in its amended complaint, and that the Nation therefore could not be joined under Rule 19; [and that] (2) the Secretary was a necessary and indispensable party for whom joinder was not feasible. As to the first, the panel holds that whether or not the complaint sought affirmative relief against the Navajo Nation, the Nation could still be joined under Rule 19. On the second point, the panel holds that for monetary relief, the Secretary needed to be joined, because "Peabody is caught in the middle of a dispute not of its own making." The Navajo preferences were imposed as a condition on the leases by the U.S., and so “[i]f the district court were to hold that the Navajo employment preference provision violates Title VII and to award damages against Peabody, it would be profoundly unfair if Peabody could not seek indemnification from the Secretary.” The EEOC was barred by statute from joining the Secretary per 42 U.S.C. §2000e-5(f)(1) (that authority resided solely with the U.S. Attorney General). But the inability to join the Secretary did not require the dismissal of Peabody, at least for injunctive relief: Doctrine of sovereign immunity does not protect the Nation in a suit brought by a U.S. government agency, and that Peabody and the Nation if necessary could seek interpleader relief from the Secretary.

Zuress v. Donley, — F.3d —, 109 FEP 915 (9th Cir. June 8, 2010). Panel: THOMAS, Hall, Noonan. Claims on Appeal:  Title VII discrimination (sex). Disposition Below: Dismissal on subject-matter jurisdiction grounds under Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee’s claim fell within intra-military immunity, as she was required to serve dual-status under National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201, § 1214, 110 Stat. 2422, 2695 (1996), codified at 10 U.S.C. § 10216. Plaintiff argued that under a 1997 amendment to the act, federal statutes of general applicability such as Title VII were placed outside the scope of intra-military immunity. Panel holds that language was not clear enough to abrogate immunity. Noting split of authority (compare Jentoft v. United States, 450 F.3d 1342 (Fed. Cir. 2006) (finding that the amendment abrogated military immunity), with Williams v. Wynne, 533 F.3d 360, 367 (5th Cir. 2008) (1997 Amendments did not effect such a substantive change)).

Carver v. Holder, 606 F.3d 690, 109 FEP 556 (9th Cir. 2010). Panel: TALLMAN, Kleinfeld, Tashima. Claims on Appeal:  ADEA failure to rehire. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Federal employee cannot bring civil action under 29 U.S.C. § 633a, based on favorable finding by EEOC, simply to improve on the remedy. Once Office of Federal Operations issues final decision, the only alternatives are to accept what is awarded, file an enforcement action (if there is a dispute about what was awarded), or seek de novo review of liability and relief in federal district court.

Rodriguez v. Maricopa County Community College Dist., 605 F.3d 703, 109 FEP 485 (9th Cir. 2010). Panel: KOZINSKI, Ikuta, O’Connor. Claims on Appeal:  Title VII and § 1983 harassment (race, national origin). Disposition Below: Qualified immunity denied [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: A class of Latino employees contended that college failed to take appropriate action to suspend a faculty member's use of the school's email system to blast messages of a racially/ethnically provocative nature. These included: “YES! Today's Columbus Day! It's time to acknowledge and celebrate the superiority of Western Civilization”; “America did not become the mightiest nation on earth without distinct values and discrimination . . . . [o]ur survival depends on discrimination.”; “[I]f we don't pull ourselves out of the multicultural stupor, another culture with some pretty unsavory characteristics (here, here, and here) will dominate (here, here, and here) [and not without a little help from the treasonous scum Bill Clinton]”; “[t]he only immigration reform imperative is preservation of White majority.” While the president and chancellor issued disclamatory emails disapproving of the messages, they declined to take disciplinary or corrective action against the faculty member, in spite of the urging of Latino staff. Panel holds that president, chancellor and others have qualified immunity. Public university employers may be limited in what steps they can take to arrest purely speech-based harassment. “Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities-sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments-have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale.” In this case, class of employees were not targeted at anyone and were purely speech-conduct, and so protected by the First Amendment. Open issue whether such speech by an employee's manager might constitute evidence of discrimination, but panel observes that no such case was presented here (the faculty member did not supervise the plaintiffs). It also holds that the proposed measures to limit the alleged harassment - cutting-off the individual's access to email or shutting down the system entirely - also abraided First Amendment rights. The panel remands for entry of an order granting qualified immunity to individuals, and mandating that court reconsider summary judgment for the remaining defendants on the merits.

Porter v. Winter, 603 F.3d 1113, 109 FEP 225 (9th Cir. 2010). Panel: REINHARDT, Schroeder Bea. Claims on Appeal:  Title VII retaliation. Disposition Below: Dismissal on subject-matter jurisdiction grounds under Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Federal employees with Title VII claims must exhaust administrative remedies within their home agencies and the EEOC, under section 717(b) (42 U.S.C. § 2000e-16) before filing a civil action in federal district court. U.S. District Court may, nonetheless, adjudicate a claim for attorney’s fees alone for an employee who prevailed in the administrative proceedings. Panel holds that “under New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980), federal courts have subject matter jurisdiction over claims brought solely to recover attorney's fees incurred in Title VII administrative proceedings." Carey expressly stated that under Title VII § 706(k) (42 U.S.C. § 2000e-5(k)) that Title VII authorizes ‘a civil suit in federal court . . . solely to obtain an award of attorney's fees for legal work done in state and local proceedings.’ Carey, 447 U.S. at 66 (emphasis added by court).” Noting split with Fourth Circuits (Chris v. Tenet, 221 F.3d 648, 654 (4th Cir. 2000)).

Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 109 FEP 15 (9th Cir. 2010). Panel: HAWKINS, Reinhardt, Graber, Fisher, Paez, Berzon [GRABER, concurring] [IKUTA, Kozinski, Rymer, Silverman, Bea, dissenting] [KOZINSKI, dissenting]. Claims on Appeal:  Title VII pay and promotion (sex). Disposition Below: Class certification granted [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Lawsuit challenges nationwide pay and promotion practices at some 3,400 stores, said to discriminate against a class of 1.5 million current and former women employees. Fed. R. Civ. P. 23 requires district court to make findings on each element of Rules 23(a) and (b), even if such findings necessarily overlap the merits. Nevertheless, district court is to steer clear of deciding the merits at this stage. District courts maintain discretion to regulate pre-trial procedures to avoid having the certification stage run off the rails, such as to limit discovery. “[W]e would expect a district court to circumscribe discovery more often in a Title VII case than in a securities class action resting on a fraud-on-the-market theory, because the statistical disputes typical to Title VII cases often encompass the basic merits inquiry and need not be proved to raise common questions and demonstrate the appropriateness of class resolution.” Rule 23(b)(3) likely requires a more searching review than the threshold requirements of Rule 23(b)(2); in particular “Rule 23(b)(3) requires a district court to formulate ‘some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case.’” District court in this case observed requirements of Rule 23. Under Rule 23(a)(2), commonality test is “‘qualitative rather than quantitative’-one significant issue common to the class may be sufficient to warrant certification.” District court judge found commonality on the following: “(1) facts supporting the existence of company-wide policies and practices that, in part through their subjectivity, provide a potential conduit for discrimination; (2) expert opinions supporting the existence of company-wide policies and practices that likely include a culture of gender stereotyping; (3) expert statistical evidence of class-wide gender disparities attributable to discrimination; and (4) anecdotal evidence from class members throughout the country of discriminatory attitudes held or tolerated by management.” District court did not abuse its discretion in admitting (over a FRE703 challenge) the expert testimony of Dr. Wiliam Bielby on “social framework analysis,”foundation for proving a corporate backdrop of gender stereotyping and bias, and statistical expert Dr. Richard Drogin, despite defendant's objections to his methodology. Court refrains from deciding whether FRE703 standards apply equally at the class-certification stage and at trial on the merits. The district court also did not abuse its discretion in crediting the plaintiffs’ expert evidence over the defendant's evidence. A common practice of delegating discretionary decisions to manager may constitute a “common practice” worthy of certification in a Title VII case. Variations in promotion and pay experience did not deprive the class of typicality with the named plaintiffs. Class back pay remedy was manageable; employer’s extensive database containing information on each employee individually with respect to job history, seniority, job review ratings, and other factors would enable determination of each class member’s qualifications for promotion without the need for potentially unmanageable individualized hearings. Rule 23(b)(2) can furnish a proper basis for certification of a Title VII back pay class; issue of “predominance” includes factors such as whether the monetary relief sought determines the key procedures that will be used, whether it introduces new and significant legal and factual issues, whether it requires individualized hearings, and whether its size and nature-as measured by recovery per class member-raise particular due process and manageability concerns would all be relevant, though no single factor would be determinative. District court abused its discretion when it certified a punitive-damage class under Rule 23(b)(2) without considering whether it was more appropriately handled under Rule 23(b)(3). Plaintiffs who were not Wal-Mart employees at the time the complaint was filed lack standing to bring a suit for injunctive and declaratory relief.

Alvarado v. Cajun Operating Co., 588 F.3d 1261, 22 A.D. Cases 1172 (9th Cir. 2009) . Panel: RAWLINSON, Bybee, Burns. Claims on Appeal: ADA retaliation. Disposition Below: Motion in limine granted; interlocutory appeal [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: ADA retaliation claims are not within ambit of 42 U.S.C. § 1981a, which applies only to discrimination, and thus, employee had no right to jury trial or claim for legal (i.e., compensatory or punitive) relief.

Becerril v. Pima County Assessor's Office, 587 F.3d 1162, 22 A.D. Cases 1025 (9th Cir. 2009). Panel: Per Curiam (Fletcher, Canby, Graber). Claims on Appeal: 1. ADA reassignment. 2. ADA reasonable accommodation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No genuine issue of material fact about motive for reassigning employee, where employer was acting on complaints of misconduct. 2. ADAAA not retroactive. Temporomandibular disorder not a "disability" because she was not limited in major life activity of talking; eating hard foods is not a major life activity; and pain and grogginess did not substantially limit ability to think or concentrate.

Fleming v. Yuma Regional Medical Center, 587 F.3d 938, 22 A.D. Cases 1033 (9th Cir. 2009). Panel:  BYBEE, Gould, Tymkovich. Claim on Appeal: Rehabilitation Act hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff] . Grounds: Section 504 of the Rehabilitation Act (29 U.S.C. § 794) applies to independent contractors (noting split in circuits on this issue).

Barker v. Riverside County Office of Educ., 584 F.3d 821, 22 A.D. Cases 835 (9th Cir. 2009). Panel: PREGERSON, Nelson, Singleton. Claims on Appeal: ADA and Rehabilitation Act retaliation. Disposition Below: Judgment of dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in dismissing case on standing grounds. Plaintiff school teacher has standing under ADA and Rehabilitation Act to sue for harassment and constructive discharge after she voiced concerns that the County Office of Education was not complying with requirements of federal and state law in how it provided educational services to its disabled students.

Indergard v. Georgia-Pacific Corp., 582 F.3d 1049, 22 A.D. Cases 660 (9th Cir. 2009). Panel: GOODWIN, Fisher [O'SCANNLAIN, dissenting]. Claims on Appeal: ADA and Ore. state law medical testing . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee was subjected to a two-day full battery of physical examinations (PCE) before her return to work, which included a treadmill and lifting tests. Panel holds that exam was used substantially for the illegal purpose of detecting disabilities (remanding the issue of whether the PCE was job related and consistent with business necessity). Following the EEOC's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations, panel cites seven factors that may be used to determine whether a test violates 42 U.S.C. § 12112(d)(4)(A). Weighing the factors, the panel majority finds that they mostly tilt in favor of the employee's claim: person who performed test was licensed occupational therapist, she also interpreted employee's performance and recommended that she not return to work; although PCE was ostensibly intended to determine whether plaintiff could return to work, the broad reach of the test was capable of revealing impairments of her physical and mental health, particularly in light of subjective reports of her current pain level, use of medication and assistive devices, and communication, cognitive ability, attitude, and behavior; also recorded her heart rate and breathing pattern after the treadmill test, and muscle pain and stiffness after the first day of testing, which measures physiological response to her performance of a task and going beyond collecting information necessary to determine whether employee was physically capable of performing the task.

Sharer v. State of Oregon, 581 F.3d 1176, 22 A.D. Cases 677 (9th Cir. 2009). Panel: FISHER, Goodwin, O'Scannlain. Claim on Appeal: Rehabilitation Act termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant] . Grounds: Oregon Public Defender Office where employee worked was not a covered employer under the Rehabilitation Act § 504.

EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 107 FEP 242 (9th Cir. 2009). Panel:  FLETCHER, Tashima [NOONAN, dissenting]. Claim on Appeal:  Title VII retaliation. Disposition Below: Judgment after a jury trial ($5000 mental suffering, $135,000 lost earnings, $250,000 punitive damages; $36,552 back pay, $5156 prejudgment interest) [plaintiff]. Outcome on Appeal:  Affirmed [plaintiff]. Grounds: Defendant forfeited objection to sufficiency of the evidence by not presenting Fed. R. Civ. P. 50(a) motion on retaliation (except for passing reference) at the close of the EEOC's case-in-chief, other than on issue of whether employee engaged in protected activity and defendant's agents knew about it. Record contained evidence that employee did complain, and he manifested reasonable belief that the conduct complained about constituted discrimination (he made complaints about 2-3 insults about his religion, including statement that "Muslims need to die" and "[t]here's a culture in Go Daddy. You complain you get fired." No need for employee to complain about all incidents. Evidence of causation include that only days passed between complaint and termination, and that employer obfuscated when it actually made the decision to fire the employee. New trial motion properly denied.

Jackson v. Rent-A-Center West, Inc., 581 F.3d 912, 107 FEP 254 (9th Cir. 2009). Panel:  THOMAS, Nelson [HALL, dissenting]. Claim on Appeal: § 1981 discrimination and retaliation. Disposition Below:  Dismissed on motion to compel arbitration [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: Under Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006), challenge to the enforceability of an entire contract presumptively belongs to the arbitrator, while a challenge to the enforceability of the arbitration provision itself belongs to the court. In case alleging statutory violations, where a party specifically challenges arbitration provisions as unconscionable and hence invalid, whether provisions are unconscionable is an issue for the court to determine, applying the relevant state contract law principles. This rule applies even where the agreement's express terms delegate that determination to the arbitrator. Court affirms the district court's holding that fee-sharing provision itself was not substantively unconscionable, but remands the balance of the case for further review.

Nicholson v. Hyannis Air Service, 580 F.3d 1116, 107 FEP 261 (9th Cir. 2009). Panel:  REINHARDT, Brunetti, Thomas. Claim on Appeal: Title VII transfer. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: Female pilot dropped from route due to low score on crew resource management ("CRM"), consisting of communication and cooperation skills that enable the pilots and crew of an airplane to work together to maximize the safety and efficiency of a flight. Court finds that the lower court misanalyzed the prima facie case. District court assessed Nicholson's alleged CRM deficiencies under the rubric of meeting the employer's "legitimate expectations." As CRM skills are a subjective qualification, they cannot be considered in evaluating a plaintiff 's qualifications at the first step of McDonnell Douglas. Plaintiff also presented a genuine issue of material fact about whether similarly situated men were treated better. Allowing male pilots to re-test on technical flying skills, while not offering a comparable opportunity to Nicholson to correct her CRM, is prima facie evidence of sex discrimination. Although CRM skills are different from the other skills required of pilots, any distinction between CRM skills and technical piloting skills is not material for purposes of determining whether the male pilots were 'similarly situated' to Nicholson. The CRM skills allegedly lacking in plaintff and the technical piloting skills lacking in the male pilots each were skills required of pilots and necessary for safe flying, and airline treated both sets of skills as ones that could be acquired and improved upon through training. Court also finds a genuine issue of material fact on pretext. Airline's failure to treat Nicholson in the same manner that it treated similarly deficient male pilots provides some evidence that airline disciplined her because of her sex and not because of her alleged CRM deficiencies. Record also included sex-related remarks, such as the complaint that employee had a "machismo" attitude; captain's concern about flying with her because he and the plaintiff had a prior sexual encounter; and removal from a flight by that same captain, who expressed concern about whether his work problems with her were related to that earlier relationship.

EEOC v. The Boeing Co., 577 F.3d 1044, 106 FEP 1839 (9th Cir. 2009). Panel: HAWKINS, Berzon, Clifton. Claims on Appeal:  Title VII termination (sex) and retaliation. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: Two claimants, Ms. Castron and Ms. Wrede, received low scores on reduction-in-force ("RIF") assessments and were terminated. For the first claimant, after complaining of a hostile work environment, she was transferred to a new work group and was terminated in a RIF two months later, in October 2002. Genuine issues of material fact exist about discrimination and retaliation based on direct evidence: co-worker testified that employee's supervisor made a number of demeaning and derogatory comments about women ("didn't want any more women," "didn't have good luck with females," not enough time to train women, women should be home). These comments, considered along with employee's interactions with supervisor over the course of her employment, are sufficient to create an inference of discriminatory motive even though the comments were not directed specifically at employee or made in regard to decisions about her employment. Based on sexist comments alone, a jury might reasonably infer that supervisor's decision to transfer employee, rather than a male coworker about whom she complained, to a position where her job would be less secure may have resulted from improper motivations, including discriminatory intent, retaliatory intent, or both. Alternatively, there was sufficient evidence of pretext to warrant a trial: employee's new supervisor had previously referred to employees a "little girl" and made a "joking" inquiry as to whether she "broke a nail." Although these comments occurred two years prior to employee's firing, they constitute at least circumstantial evidence of discriminatory animus. Moreover, co-workers testified that her performance was superior to male employees who survived the RIF. For the second claimant, though she did not have the same direct evidence, the panel found that there was sufficient indirect evidence, under a burden-shifting method of proof, to survive summary judgment. Rejects a same-actor inference in this case because of a countervailing factor, i.e., none of the employees who the supervisors ranked lower than employee in the April and July RIFs ultimately lost their jobs. All six men had their RIFs cancelled or successfully sought redeployment within Boeing, and none was laid off. Supervisor also dropped her in all categories in the ranking without an articulable basis. Given the evidence that employee's RIF scores were not worthy of credence, a jury could find that employee suffered discrimination, notwithstanding any inference arising from her supervisors' prior employment decisions that were more favorable, or at least less adverse, to that employee. Moreover, employee was the only woman in her skill code, and was laid off while every male employee identified for termination based on their RIF scores in all threeRIFs ultimately remained at company. Some men might have been retained because the department's supervisor offered them assistance in finding other positions, while women were not offered the same opportunity.

Kraus v. Presidio Trust Facilities Div./Residential Mgt. Branch, 572 F.3d 1039, 106 FEP 1497 (9th Cir. 2009). Panel: BERZON, Nelson, Clifton. Claims on Appeal:  Title VII and ADA discrimination, retaliation and harassment. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: Under 29 C.F.R. § 1614.105(a)(1), employee can satisfy duty to contact a "EEO Counselor" within 45 days of violation by contacting "EEO Officer," even where there also an "EEO Counselor" available. EEOC adheres to interpretation that employee may make contact with "any agency official logically connected with the EEO process." On remand, district court should decide whether, in each instance, employee "exhibit[ed] an intent to begin the EEO process."

Browning v. Paulson, 567 F.3d 1038, 106 FEP 521 (9th Cir. 2009). Panel: FISHER, Graber, Smith. Claims on Appeal: Title VII demotion (race) and retaliation. Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Reaffirming holding in Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338 (9th Cir. 1987), that district court’s decision not to give permission instruction about the probative value of pretext was not reversible error. 

Bova v. City of Medford, 564 F.3d 1093, 106 FEP 206 (9th Cir. 2009). Panel: GRABER, Fisher, Smith. Claims on Appeal:  ADEA benefits. State statutory and constitutional law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Dismissed [defendant]. Grounds: Challenge to city’s option for employees to join union-funded health plan, which does not cover retirees, not ripe for current employees who are retirement eligible but have not yet retired.

State of Alaska v. EEOC, 564 F.3d 1062, 106 FEP 97 (9th Cir. 2009). Panel: KOZINSKI, Schroeder, Thomas, Silverman, Wardlaw, Berzon, Smith [O’SCANNLAIN, dissenting in part] [IKUTA, Tallman, Callahan, dissenting]. Claims on Appeal: GERA termination and harassment (sex, race), and retaliation. Disposition Below: Review of agency order finding jurisdiction [plaintiff]. Outcome on Appeal:  Affirmed [plaintiff]. Grounds: Government Employee Rights Act of 1991 (GERA), which covers policy-makers in state government, constitutionally abrogated state’s Eleventh Amendment immunity as to claims (as presented in this case) that would also state a claim directly under Fourteenth Amendment Equal Protection (termination, harassment) or Due Process/First Amendment (retaliation). Because the plaintiffs state a claim cognizable directly under the federal constitution, there is no need to consider whether GERA was valid prophylactic law.

EEOC v. Federal Express, 558 F.3d 842 (9th Cir. 2009). Panel: TASHIMA, McKeown, Gould. Claim on Appeal: EEOC administrative subpoena. Disposition Below: Enforced [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Court rejects mootness challenge, holding that although employer eventually provided the same records in another case, case fell within "capable of repetition, evading review" category; voluntary cessation not enough. Court found post-charge enforcement grounded in the Title VII enforcement mechanism and the EEOC's administrative regulations. EEOC authority to investigate did not terminate with the issuance of the right-to-sue letter, per 29 C.F.R. § 1601.28(a)(3): "Issuance of a notice of right to sue shall terminate further proceeding of any charge that is not a Commissioner charge unless [an enumerated official of the Commission] determines at that time or at a later time that it would effectuate the purpose of title VII or the ADA to further process the charge." Moreover, according to the EEOC's interpretation of its regulation, the agency may continue to pursue a charge that alleges systemic discrimination even after the right-to-sue issues (1 EEOC Compliance Manual § 6.4 (June 2006)). Granting deference to this regulation and the compliance manual, the panel finds that the EEOC could enforce the subpoena. The panel noted split with Fifth Circuit's EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997) decision, "disagree[ing] with Hearst's notion that the charging party can, through his or her actions (that is, by filing suit), divest the EEOC of authority." Court rejects arguments that data sought was irrelevant or the request overbroad. Information about maintenance of computerized files not strictly evidence of discriminatory treatment, but helpful in crafting additional future requests. Request may cover other kinds of discrimination than presented by charge.

Rohr v. Salt River Project Agricultural Improvement & Power Dist., 555 F.3d 850, 21 A.D. Cases 964 (9th Cir. Feb. 13, 2009). Panel: BAER, Paez, Berzon. Claim on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff was placed on travel and other work restrictions, i.e., that he "not be given overnight out-of-town assignments," because of difficulty of maintaining regimen to treat insulin-dependent Type 2 diabetes. Court finds genuine issue of material fact about "disability" issue, that he was substantially limited in the major life activity of eating due to the disease itself and the treatment. Plaintiff and doctors testify that he must monitor strictly what and when he may eat. The effort to manage diet is itself substantially limiting. Insulin injections themselves can be dangerous. Plaintiff testified in his deposition that it is difficult to determine how much insulin to take, as the necessary amount varies depending on the food and activity level. While the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008), does not apply retroactively, recitals in new act support generous construction of ADA. there is a genuine issue of material fact about whether the employee was qualified. The employe claimed that he was unable to take a mandatory respirator certification test (because of high blood pressure. But the court holds that "OSHA's regulations were sufficiently broad to allow Salt River the discretion to determine how, and how often, it would evaluate its employees' ability to use a respirator. As such, there is a genuine issue of fact whether Salt River could have provided reasonable accommodations to enable Rohr to complete the test." The panel also holds that because "Salt River has failed to show that the respirator certification test was job-related and a business necessity, and because the test tended to screen out an individual with diabetes-related high blood pressure, Salt River has not established that it is entitled to summary judgment." There is also a genuine issue of material fact about whether the employee could perform the essential functions of his job: "Diabetes did not prevent Rohr from performing the bulk of his job, which, as described supra, was mostly office work. The disease did, however, prevent him from participating in out-of-town and overnight field assignments to repair outages. The parties dispute whether such field assignments were an 'essential function' of his job, and Salt River's own medical staff stated that he was 'physically able to perform the essential functions of his job with the accommodations as outlined.'"

EEOC v. Federal Express, 543 F.3d 531, 104 FEP 324 (9th Cir. 2008). Panel: TASHIMA, McKeown, Gould.. Claim on Appeal: EEOC administrative subpoena. Disposition Below: Enforced [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Court rejects mootness challenge, holding that although employer eventually provided the same records in another case, case fell within "capable of repetition, evading review" category; voluntary cessation not enough. Court found post-charge enforcement grounded in the Title VII enforcement mechanism and the EEOC's administrative regulations. EEOC authority to investigate did not terminate with the issuance of the right-to-sue letter, per 29 C.F.R. § 1601.28(a)(3): "Issuance of a notice of right to sue shall terminate further proceeding of any charge that is not a Commissioner charge unless [an enumerated official of the Commission] determines at that time or at a later time that it would effectuate the purpose of title VII or the ADA to further process the charge." Moreover, according to the EEOC's interpretation of its regulation, the agency may continue to pursue a charge that alleges systemic discrimination even after the right-to-sue issues (1 EEOC Compliance Manual § 6.4 (June 2006)). Granting deference to this regulation and the compliance manual, the panel finds that the EEOC could enforce the subpoena. The panel noted split with Fifth Circuit's EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997) decision, "disagree[ing] with Hearst's notion that the charging party can, through his or her actions (that is, by filing suit), divest the EEOC of authority." Court rejects arguments that data sought was irrelevant or the request overbroad. Information about maintenance of computerized files not strictly evidence of discriminatory treatment, but helpful in crafting additional future requests. Request may cover other kinds of discrimination than presented by charge.

Whitman v. Mineta, 541 F.3d 929, 104 FEP 129 (9th Cir. 2008). Panel: NELSON, Tashima, Fisher. Claim on Appeal: 1.ADEA retaliation. 2. ADEA promotion. 3. ADEA discrimination. Disposition Below: 1. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 2. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 3.Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant].  Grounds: 1. Plaintiff may state claim for retaliation against federal government under 29 U.S.C. § 633a, following recent Supreme Court decision in Gomez-Potter. 2. Plaintiff failed as a matter of law to establish that he was qualified for promotion, where he did no show he had requisite knowledge or experience, lacked skills, and failed to show he was able to hand responsibilities. 3. Waived because employee failed to notify EEO specialist about denial of detail extension within 45 days.

Hurlic v. Southern California Gas, 539 F.3d 1024, 104 FEP 167 (9th Cir. 2008). Panel: SMITH, B. Fletcher, Friedman. Claim on Appeal:  Calif. FEHA age benefits claim. ERISA claims (not discussed here). Disposition Below: Dismissal for failure to state a claim [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: State anti-discrimination law challenge to cash balance plan preempted by ERISA. Although state anti-discrimination law is not readily preempted by ERISA, because of the joint state/federal enforcement mechanism envisioned under the ADEA (Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 101-06 (1983)), in this case the state act sweeps more broadly than the ADEA, because Congress amended the ADEA expressly to make it consistent with ERISA's substantive provisions, while California law has no comparable carve-out.

Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 103 FEP 1673 (9th Cir. 2008). Panel: HAWKINS, O'Scannlain, McKeown. Claim on Appeal: §§ 1981, 1983, 1985, 1986 hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Claim was time-barred. For limitations purposes, 'injury' that plaintiff must discover is whether there has been an adverse action, not whether employer acted with discriminatory intent in performing that act.

Parra v. Bashas', Inc., 536 F.3d 975, 103 FEP 1682 (9th Cir. 2008). Panel:  HUG, Schroeder, Callahan. Claim on Appeal:  Title VII/§ 1981 pay discrimination.Disposition Below: Class certification FRCP 23(f) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court abused discretion in finding no commonality for pay discrimination claim for purposes of class certification based on a finding that the employer allegedly equalized pay scales by the time of the order. Alleged race discrimination in setting pay scales was a common issue.

Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 103 FEP 1553 (9th Cir. 2008). Panel: O'SCANNLAIN,Smith,Mosman. Claim on Appeal: 1. Section 1981 harassment. 2. Calif. Unruh Act. 3. Cal. FEHA harassment. Disposition Below: 1. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 2. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 3.Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Single racial epithet over 28-month period, even if combined with several personally offensive remarks that had no racial connotation, not shown to be motivated by race. Alleged refusal to hire another African-American candidate because of race not targeted at him. 2. Unruh Civil Rights Act does not apply to employment relationships. Intervening state appellate court decision holding that doctor with privileges may have claim under Unruh Act distinguishable because plaintiff was paid a salary by the hospital, hospital retained control over all material aspects of his activities, made shift and nurse assignments, and required him to be on staff. 3. State law claims time-barred; no equitable tolling.

Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 103 FEP 1142 (9th Cir. 2008). Panel: HART, Paez [KLIENFELD, dissenting in part]. Claims on Appeal: 42 U.S.C. §§ 1981, 1983, 1985 and 1986, Title VII and Cal. state law (race). Disposition Below: Judgment of dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in dismissing complaint on ground that it was excessively lengthy under Fed. R. Civ. P. 8(a)(2).

Gribben v. UPS Inc., 528 F.3d 1166, 20 A.D. Cases 1185 (9th Cir. 2008). Panel: THOMPSON, Canby, Smith. Claims on Appeal: 1. ADA retaliation. 2. ADA reasonable accommodation. Disposition Below: 1. Judgment after a jury trial [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Evidentiary argument not preserved at trial, and claims not pled in complaint, did not present reversible error. Denial of impeachment testimony because it was not in the pre-trial order was error under Fed. R. Civ. P. 26(a)(1)(A) and (3), but not prejudicial because evidence did not contradict principal defense witness's testimony. No error in excluding prior consent decree between EEOC and employer. Error, if any, in excluding punitive damage instruction immaterial because jury entered defense verdict.2. District court erred in holding that employee with congestive heart disease, to establish status as disabled, must "submit . . . evidence as to the abilities of an average person in the general population to participate in outdoor activities in the Phoenix summer." Record by plaintiff and his physician established that employee could not exert himself in hot weather. Thus he presented a genuine issue of material fact as to whether his impairment was substantial and limited his ability to perform regular daily activities including breathing, thinking and physical activities in temperatures of 90 degrees or more.

Brown v. City of Los Angeles, 521 F.3d 1238, 20 A.D. Cases 807 (9th Cir. 2008). Panel: Per Curiam [Hall, Graber, Berzon]. Claims on Appeal: ADA (Title II) and Calif. FEHA benefits. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No violation to provide different disability retirement and seniority retirement programs; differentiation not "because of disability."

Diaz v. Eagle Produce Ltd. Ptnrshp., 521 F.3d 1201, 103 FEP 16 (9th Cir. 2008). Panel: SMITH, Canby, Larson. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed in part [plaintiff]. Grounds: Four employees claim they were terminated from agricultural work because of age. One employee failed to meet reasonable expectations and thus cannot make out prima facie case (employee was fired after numerous violations of rule against solicitation on property). That other three were hired when they were already in the protected group (same-actor inference) suggests inference of age discrimination not warranted; statistics of average age of replacement employees too small a sample size to have significance. Statistics for period concerning one supervisor (Brandt), though, shows nearly 16-year disparity. Same supervisor could be inferred to have knowledge of ages, because he had personal contact with individuals. Other evidence supporting inference of discrimination under Brandt was that younger employees did not get laid off, plaintiff Diaz (and one other plaintiff) had greater experience than younger successors. As to Diaz, employer does not proffer legitimate nondiscriminatory reason for termination, so summary judgment was error as to him. That there was turndown in work does not explain why Diaz was selected. Two other plaintiffs, though, properly dismissed because of legitimate reason (destruction of property).

Davis v. Team Electric, Inc., 520 F.3d 1080, 102 FEP 1641 (9th Cir. 2008). Panel: REINHARDT, Goodwin, Smith. Claims on Appeal: 1. Title VII discrimination (sex). 2. Title VII retaliation. 3. Title VII harassment (sex). Disposition Below: 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. 3.Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. Grounds: 1. Assigning more, or more burdensome, work responsibilities, is an adverse employment action. Employee stated claim that she was was assigned more strenuous overhead work (which caused her physical pain) forced to work more with Monokote (a hazardous chemical), and was given less varied work than her male co-workers. Employee also alleged that she was excluded from meetings, not allowed to use a trailer for breaks and ignored by her supervisors when she called on the radio. Court held that theses were also adverse employment actions. Not an adverse employment action, though, to assign inferior gloves and clothing that did not affect terms and conditions of employment. Employee also presented specific and substantial evidence that the employer's reasons were pretextual-- comments by supervisors (e.g., foreman said he "felt uncomfortable" around her; foreman said "this is a man's working world out here, you know"; assigned to a foreman who "needs a girlfriend"; told that food served at a meeting was "for guys only"; informed that men didn't mind working with women "if they don't complain"). Comments were made in context of work assignments by persons who affected working conditions and locations. Absence of female supervisors also probative. 2. There was sufficient "temporal proximity" between the termination of the employee's EEOC complaint and her termination three days later to infer retaliation. Employer failed to meet its burden of production as to why it selected employee for layoff. 3. Employee presented genuine issue of material fact about whether she suffered a severe or pervasive hostile work environment. Demeaning remarks directed by the foremen and co-workers at employee would be perceived by reasonable woman as harassing. Employer would be vicariously liable for hostile work environment created by supervisors and could not present affirmative defense because employer had no anti-harassment policy and blocked employee's access to supervisors to complain.

Surrell v. California Water Service Co., 518 F.3d 1097, 102 FEP 1345 (9th Cir. 2008). Panel: OBERDORFER, Nelson, Reinhardt. Claims on Appeal: 1. Title VII and §1981 promotion and training (race). 2. Title VII and §1981 harassment (race). 3. Cal. FEHA disability discrimination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Noting split in circuits, panel holds that once an employee becomes eligible to receive a right-to-sue letter, the requirement that an employee obtain such a letter is met by receipt of a right-to- sue letter from a state deferral agency. Employee loses, nonetheless, on the merits of the claim. Two, unsigned pages of unsigned notes, unauthenticated, could not be admitted as expert statistical analysis. Employee's own testimony that she was the lone black in the facility admissible, but not probative where other candidate had five years' of experience on plaintiff. Employee also does not rebut employer's proffered explanation (other candidate required less training and increased workload). 2. Although employee presumably established prima facie case of retaliation, she could not rebut legitimate, non-discriminatory reason for her being subjected to drug testing (her impaired state at work, after prior tests showed illegal drug use). 3. No evidence that unflattering remarks were based on race.

Williams v. The Boeing Co., 517 F.3d 1120, 102 FEP 1352 (9th Cir. 2008). Panel: TALLMAN, Beezer, Tashima. Claims on Appeal:§ 1981 compensation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employees did not lack standing to sue on pre-2000 damage claims for discriminatory compensation. Nevertheless, summary judgment properly granted on ground that claims were time-barred. Original complaint did not provide fair notice of such a claim under Fed. R. Civ. P. 8(a), which alleged racially discriminatory promotions, harassment and retaliation. Description of claim in release language later Consent Decree approved by employer not definite enough; only one passing reference to compensation in forty pages. Nor did the amended complaint relate back under Fed. R. Civ. P. 15(c)(1)(B) as there is no common core of operative facts between compensation and promotion. Employer not judicially estopped from challenging relation back by stray language in Consent Decree based on passing reference to pay. No tolling based on pendency of class complaint under American Pipe because class complaint did not encompass compensation. Plaintiffs who left company lacked standing to challenge district court's decertification of class of post-2000 claims of racially-discriminatory compensation.

Fichman v. Media Center, 512 F.3d 1157, 20 AD Cases 216 (9th Cir. 2008). Panel: THOMAS, Callahan, Roth. Claims on Appeal: ADA and ADEA discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Various titles associated with defendant Media Center -- the producer of public access shows -- held not to fit the definition of "employees." The court holds that the Board of Directors are not employees because Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003). They labored as volunteers just 2-4 hours a month, without pay, in contrast to regular staff. Their task was to set policy for the Media Center. "The personal satisfaction and professional status several directors reported gaining from their positions with Media Center are typical benefits of volunteer work." The only tangible "benefit" they received was director and officer insurance. Neither were the independent producers properly classified as "employees," whom the Media Center simply trained on the studio equipment and then had sign contracts to use the facility. "Media Center does not have the power to hire or fire producers. It does not supervise them in a traditional employer-employee manner. The producers are not paid a salary, nor are they entitled to employee benefits."

Bates v. UPS, 511 F.3d 974, 20 A.D. Cases 1 (9th Cir. 2007). Panel: MCKEOWN, Clifton, Fisher, Gould, Ikuta, Hawkins, Kozinski, Paez, Rymer, Schroeder, Silverman, Smith, Thomas [BERZON, Reinhardt, dissenting in part]. Claim on Appeal: ADA, Calif. FEHA and Unruh Civil Rights Act ("Unruh Act"), Cal. Civ. Code § 51 hiring. Disposition Below: Judgment after a bench trial (injunctive relief) [plaintiff]. Outcome on Appeal: Vacated and remanded [defendant]. Grounds: Challenge to a "forced whisper" hearing standard, applied by UPS as a qualification for all of its drivers. The U.S. Department of Transporation sets such a standard for drivers of vehicles with a gross vehicle weight rating (GVWR) of 10,001 or more pounds (49 C.F.R. § 391.41(b)(11)). Class challenged UPS's imposition of the same standard on drivers of lighter trucks, termed "package cars," not subject to the DOT regulation. District court conducted a bench trial and found -- applying a pattern-or-practice methodology borrowed from Title VII and Teamsters v. United States, 431 U.S. 324 (1977) -- that UPS failed to support its "forced whisper" policy under the ADA's § 12112(b)(6) qualification standards. Lead plaintiff had standing. Even though he accepted reassignment into a position that barred him from bidding on a package-car driving position, remaining class members are not foreclosed from attaining relief esince the class was long ago duly certified. Teamsters presented the wrong model to examine a facial classification such as a hearing standard. The court rejected argument that hard-of-hearing drivers were not qualified (i.e. could not meet the "essential functions" of the job) because they could not meet the company's hearing qualification standard. District court erroneously analyzed the business necessity defense without first weighing whether the plaintiffs demonstrated that they were qualified to safely drive the package cars. Plaintiffs' burden to prove "otherwise qualified"would be to show that each meets the basic qualifications for the package-car driver position (seniority, twenty-one years of age, and holding a valid driver's license) and can drive a package car safely, including having a clean driving record and passing the driving test. The district court was also directed to determine whether any reasonable accommodation would be necessary for plaintiffs to meet those qualifications. Assuming that employees made out these preconditions under the ADA, the district court's finding of "discrimination" under the ADA could stand. Regarding "business necessity" defense, the employer bears the burden of showing that the higher qualification standard is job-related. Court overruled Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir. 2001), which had equated business necessity with the more-onerous standard of BFOQ under Title VII. District court also erred in categorically rejecting the relevance of the DOT standard to package cars. The court also ordered a remand of the liability finding under the California Fair Employment and Housing Act (FEHA). Unruh Act does not apply to employment actions.

Dukes v. Wal-Mart Inc., 509 F.3d 1168, 102 FEP 257 (9th Cir. 2007). Panel: PREGERSON, Hawkins [KLEINFELD, dissenting]. Claim on Appeal: Title VII pay and promotion (sex). Disposition Below: Class certification granted [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Lawsuit challenges nationwide pay and promotion practices at some 3,400 stores, said to discriminate against a class of 1.5 million current and former women employees. Rule 23 factors (commonal;ity, typicality, etc.) must be weighed even if it may overlap with the merits. Numerosity not contested. Commonality established by evidence of company-wide corporate practices and policies, statistical evidence of gender disparities and anecdotal evidence. Panel affirms the admissibility of sociological evidence by Dr. William Bielby (social framework analysis) and statistical evidence by Dr. Richard Drogin demonstrating a company-wide bias against promoting and compensating women employees equal to men, on FRE 702 and 703 grounds; all challenges implicate weight rather than admissibility. Statistician's methodology acceptably explains why regional rather than store-level analysis is correct. Chow test to determine whether data may be aggregated not required as a matter of law. Employer failed to appeal exclusion of its own statistical witness (Dr. Joan Haworth) on same grounds; her report may not be used on appeal to challenge district court's findings. It credited the 120 declarations of anecdotal witnesses in further support of commonality. The panel majority reaffirmed the principle -- common to class and individual Title VII cases -- that (consonant with the class's theory of the case) "subjective decision-making is a 'ready mechanism for discrimination' and that courts should scrutinize it carefully." The court held that it was unnecessary for a class to proffer a separate representative for each category of promotions to establish Rule 23(a) typicality: a "lack of a class representative for each management category does not undermine Plaintiffs' certification goal because all female employees faced the same discrimination." Regarding adequacy of representation, class may include supervisory and non-supervisory employees, but putative class members who were no longer Wal-Mart employees at the time Plaintiffs' complaint was filed do not have standing to pursue injunctive or declaratory relief. Back pay is monetary, not equitable, and does typically weigh against certification of a Rule 23(b)(2) class (although the district court did not abuse its discretion in certifying the class in this case).

Pittman v. Oregon, 509 F.3d 1065 (9th Cir. 2007). Panel: BERZON, Fisher, Barzilay. Claim on Appeal: § 1981 discrimination. Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12 (b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Section 1981(c) does not create a private right of action against state agencies.

State of Alaska v. EEOC, 508 F.3d 476, 101 FEP 1665 (9th Cir. 2007). PANEL: NOONAN [WALLACE, concurring] [PAEZ, dissenting]. CLAIMS ON APPEAL: GERA/Title VII termination (race and sex). DISPOSITION BELOW: Appeal from agency determination that it could not adjudicate Eleventh Amendment immunity issue [plaintiff]. OUTCOME ON APPEAL: Reversed [defendant]. GROUNDS: In passing Government Employee Rights Act (GERA), 42 U.S.C. § 2000e-16a, which authorized the EEOC to adjudicate claims by policymakers and personal staff in state government, Congress did not validly abrogate the Eleventh Amendment. Although the legislation might be supportable as section 5 legislation under the Fourteenth Amendment, Congress failed to make the requisite findings of a present need in 1991 to prevent or remediate discrimination in the upper levels of state government and that court could not borrow findings from the 1972 amendments adding states to Title VII which are not narrowly focused on that group.

Beck v. Local 99 of the United Food and Commercial Workers Union, 506 F.3d 874, 101 FEP 1589 (9th Cir. 2007). PANEL: IKUTA, Hall, O'Scannlain. CLAIMS ON APPEAL: Title VII breach of duty of fair representation (sex). § 301 DFR claim (not discussed here). DISPOSITION BELOW: Judgment after a bench trial; $16,304 in lost wages, $125,000 in compensatory damagesfor emotional distress, $50,000 in punitive damages, and attorney's fees and costs [plaintiff]. OUTCOME ON APPEAL: Affirmed [plaintiff]. GROUNDS: Third prong of McDonnell Douglas test as applied to DFR claim has been superseded by Goodman v. Lukens Steel Co., 482 U.S. 656 (1987), which held that a Title VII plaintiff need not show that the union had a negative animus toward the protected class. District court could draw the permissive inference of discrimination based on comparative evidence that the union more aggressively represented two men in matters involving rule infractions than two women (including plaintiff). District court did not err in finding that male and female employees were similarly situated 'in all material respects,' and that plaintiff was similarly situated to other male employees who received more favorable treatment from the same union representatives.

Metoyer v. Screen Actors Guild, Inc., 504 F.3d 919, 101 FEP 993 (9th Cir. 2007). Panel: NELSON, Rawlinson [BEA, dissenting]. Claim on Appeal: 1. Section 1981 breach of contract claim. 2. Section 1981 termination. 3. Section 1981 retaliation. 4. Cal. state law discrimination and retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. 4. Reversed [plaintiff]. Grounds: 1. Because case was being brought only under section 1981, novel question presented about whether mixed-motive defense would defeat liability or only limit relief. Court holds that the latter applies based on pre-1991 CRA case law in the circuit under Title VII. Although Price Waterhouse changed standard, amendment to Title VII (which ordinarily tracks section 1981) ought to apply. Failure to amend section 1981 at same time not determinative; nothing in plain language of section 1981 establishes mixed-motive defense. Nevertheless, summary judgment could be affirmed on alternative basis that there was no admissible evidence that a contract existed to place her in title of National Director of Affirmative Action, owing to parol evidence rule. 2. Repeated racial comments by senior management over period of employment ("black people like to party and eat and not do their job," "they ought to be glad they have a job," "lazy and malingerers," "you talk more than other black people here. The rest of them are like . . . a tribe or something") and numerous unanswered complaints of race discrimination constituted circumstantial evidence of racial bias. Comments do not be specifically by decision-maker, or at same time as decision, or directed only at plaintiff. Evidence in record that other senior managers were influential in firing decision. 3. Direct and circumstantial evidence of retaliation for complaining about how blacks were treated and about allegedly fraudulent EEO-1 report submitted to EEOC. Employee was told to stop raising issues over managers' heads, was accused of trying to stir up complaints, became angry and told "I'm going to get that bitch." Employer failed to present sufficient evidence to establish mixed-motive defense. Although employee was accused of misdirecting $30,000 in grant money to family and business associates, defense undermined that other employees also engaged in questionable practices with same funds but were not disciplined. Genuine issue of material fact also presented on whether audit of funds was biased. 4. District court erred in finding that employee consented to dismissal of the state-law claims.

Nilsson v. City of Mesa, 503 F.3d 947, 101 FEP 901, 19 A.D. Cases 1418 (9th Cir. 2007). Panel: RAWLINSON, Gould, Covello. Claim on Appeal: 1. ADA failure to hire. 2. Ariz. state law failure to hire (sex, disability). 3. Title VII and state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Applicant waived ADA and section 1983 claims by agreeing, at time of application, to waiver of acts "in the course of the investigation, into [her] background, employment history, health, family, personal habits and reputation." 2. Claims waived because they were not made in charge. 3. Employee made out prima facie case that panel knew about her EEOC complaint. Evidence that city considered employee's litigation history not material, in view of uncontested evidence that employee failed psychological evaluation.

Forester v. Chertoff, 500 F.3d 920 (9th Cir. 2007). Panel: CALLAHAN, Nelson [BEA, dissenting]. Claim on Appeal: Title VII and ADEA promotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Under ADEA, employee may bypass administrative procedures and file civil action if the employee files a notice of intent to sue within 180 days of the act of discrimination and waits no fewer than 30 days to file lawsuit (29 U.S.C. § 633a(d)). Employees here misunderstood this to mean that the civil action had to be filed within 180 days and filed only nine days after filing notice. Although employee was not required to file within 180 days, and filed too soon, that did not affect district court's power because 30-day waiting period was not jurisdictional. Thus, district court had jurisdiction to grant employees equitable relief from compliance with waiting period. Panel awards relief on grounds that there was no prejudice to the agency and in the interests of justice (where much later filing would have been timely under the statue).

Hulteen v. AT&T Corp., 498 F.3d 1001, 101 FEP 449 (9th Cir. 2007). Panel: WARDLAW, Schroeder, Reinhardt, Hawkins, Graber, McKeown, Fletcher, Fisher, Gould, Paez, Berzon [Rymer, concurring in part II.B only][O'SCANNLAIN, Rymer, Bybee, Callahan, dissenting]. Claim on Appeal: PDA benefits. Disposition Below: Summary judgment for plaintiff class [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Awarding pension benefits calculated upon service dates that awarded pre-1979 pregnancy leave time less credit than comparable disability leave violated the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k). Each application of company policy constituted the continuation of a facially-discriminatory policy, thus governed by Bazemore v. Friday, 478 U.S. 385 (1986), rather than Ledbetter. Class members were "affected by pregnancy," under the express terms of the statute, when company calculated her retirement benefits, deliberately choosing a date that would deprive them of benefits received by those who were not 'affected by pregnancy' by excluding earlier pregnancy leave from the later calculation of benefits. Broad exemption of seniority systems from Title VII liability, under 42 U.S.C. § 2000e-2(h), superceded by specific and later-enacted language in the PDA that narrowed exemption as applied to pregnancy cases. Noting split with Sixth and Seventh Circuits.

Craig v. M&O Agencies, Inc., 496 F.3d 1047, 101 FEP 701 (9th Cir. 2007). Panel: BYBEE, Goodwin, Smith. Claim on Appeal: Title VII harassment (sex). State law tort (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee presented genuine issue of material facts about whether harassment was severe or pervasive, where interim president made occasional remarks about the plaintiff's body, once propositioned her over drinks, cornered her in a women's bathroom and assaulted her with open-mouthed kiss, and continued pursuing her 18 days after assault (culminating in four additional instances of alleged harassment). Employee did not establish "tangible employment action" for vicarious liability based on vague threat that she would be terminated, where employee did not acquiesce to threat and other executives reassured her that she would keep her job. Employer did not establish its affirmative defense under Faragher/Ellerth. It did make out first prong, in that it immediately responded to complaints and abated harassment. But employee reported the harassment in a reasonable interval, 19 days after assault and thus reasonably availed herself of the corrective opportunities provided by the employer. Reasonable employee "may have hoped the situation would resolve itself without the need of filing a formal complaint, and she justifiably may have delayed reporting in hopes of avoiding what she perceived could be adverse-or at least unpleasant-employment consequences."

Payan v. Aramark Management Services Ltd. Partnership, 495 F.3d 1119, 101 FEP 243 (9th Cir. 2007). Panel: BYBEE, Klienfeld, Whaley. Claim on Appeal: Title VII harassment, discrimination (sex) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: When the parties do not know the date of receipt of EEOC right-to-sue letter by the charging party or her counsel, three-day presumption from date of mailing applies (noting split in circuits).

Poland v. Chertoff, 495 F.3d 1119, 101 FEP 243 (9th Cir. 2007). Panel: GOULD, Rawlinson [PAEZ, dissenting in part]. Claim on Appeal: ADEA retaliation and constructive discharge. Disposition Below: Judgment entered after bench trial; $339,130.75 back pay and benefits; fees [plaintiff]. Outcome on Appeal: Affirmed on liability vacated and remanded on remedy [defendant]. Grounds: District court did not clearly err in finding that transfer and demotion to non-supervisory position was causally linked to retaliation. Although agency pointed to supposedly independent investigation of employee, finding that he engaged in unprofessional misconduct, recorded supported inference that biased subordinate initiated inquiry against employee, panel reviewed lengthy memo written by subordinate, subordinate assembled witness list against employee, and volume of reports against employee arced upward after EEO complaint. Panel evaluates three theories of subordinate bias liability ("but for," "cat's paw," and influence), and adopts standard that biased subordinate "influenced or was involved in decision or decision-making process." (Noting split in circuits.) Although transfer was retaliatory, employee failed as a matter of law to establish constructive discharge (and district court clearly erred in holding otherwise). Ninth Circuit does not require employee to prove that employer created intolerable conditions with the intent to make the employee resign (noting split in circuits). Working conditions were not so severe as to make resigning a fitting response; employee stayed put for eight months before retiring, and employee never testified that he felt compelled to quit. Decision to retire was mixed with personal reasons. Because damage award was based on constructive discharge theory, case remanded for entry of new award, and leave to amend complaint to seek other remedies under Fed. R. Civ. P. 15(a). Fee award vacated, but may be reinstated if any relief is granted.

Walton v. U.S. Marshals Service, 492 F.3d 998 (9th Cir. 2007). Panel: SMITH, Goodwin, Fisher. Claim on Appeal: Rehabilitaiton Act termination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: To state "regarded as" claim, employee must prove that (1) the employer believes that the employee has some impairment; and (2) subjectively believes that the employee is substantially limited in one or more major life activities, either with (a) direct evidence or (b) other evidence that the impairment imputed to the employee is objectively a substantially limiting impairment. Employee failed to establish that the service regarded the employee substantially limited in the major life activities of hearing, working or localizing sound, based on report showing employee had one functioning ear. Disqualification under the service's specific hearing standards and report of doctor who tested her not equivalent to evidence that employee cannot hear or work. Conclusory report by employee's expert that he interpreted service's medical report as stereotyping the employee's hearing not admissible to defeat summary judgment. Employee also fails to show that employer thought she was substantially limited in major life activity of work; she was excluded only from particular job at issue. Record of impairment claim fails for same reasons as above.

Noyes v. Kelly Services, 488 F.3d 1163, 100 FEP 1153 (9th Cir. 2007). Panel: MCKEOWN, Hug, Moskowitz. Claim on Appeal: Title VII promotion (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds: Lack of adherence to the "fellowship" religious beliefs promoted by management represents a protected classification under Title VII. Employee denied promotion to Software Development Manager presented genuine issue of material fact about pretext, over employer's claim that other candidate was selected because he was the "right" choice and a "consensus" pick. District court erred in requiring employee to prove both that the proffered reason was false and that discrimination was the real reason. Evidence included that membership in preferred religious organization permeated the promotion process, that her qualifications were objectively superior, that other decisionmakers denied being part of the "consensus," that promoted employee had in the past benefitted from favorable treatment and statistics showing that promotions routinely favored fellowship members. District court also abused discretion by not modifying Rule 16(b) order to allow employee to depose a manager he failed to appear as scheduled. On remand, district court should reconsider admissibility of plaintiff expert.

Gambini v. Total Renal Care, Inc., 486 F.3d 1087 (9th Cir. 2007). Panel: SHADUR, Goodwin, Kozinski. Claim on Appeal: Wash. state law disability termination. FMLA claim (not discussed here). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds: Employee (a contracts clerk at a health care clinic), diagnosed with bipolar disorder, revealed signs of irritability at work. Jury ought to have been instructed under Washington law that, for plaintiff diagnosed with bipolar disorder -- terminated for intemperate behavior during a performance review -- "conduct resulting from a disability is part of the disability and not a separate basis for termination." (In this instance, the LAD parallels the federal ADA.) Panel held that under prior circuit law and Washington state law, "where an employee demonstrates a causal link between the disability-produced conduct and the termination, a jury must be instructed that it may find that the employee was terminated on the impermissible basis of her disability."

Detabali v. St. Luke's Hospital, 482 F.3d 1199, 100 FEP 621 (9th Cir. 2007). Panel: SMITH, Gould, Covello . Claim on Appeal: Calif. state law discrimination and retaliation. Disposition Below: Dismissal of LMRA § 301 preemption grounds [defendant] . Outcome on Appeal: Reversed [plaintiff]. Grounds: Although claim required application of collective bargaining agreement (to determine whether employer legitimately required plaintiff-nurse to work outside of her "cluster"), this does not require interpretation of CBA, so state law claim was not preempted by LMRA. Case, removed to federal law, should be remanded to state court. Sanctions against plaintiff's attorney for repleading state law claims reversed.

Walton v. U.S. Marshals Service, 476 F.3d 723, 18 A.D. Cases 1705 (9th Cir. 2007). Panel: SMITH, Goodwin, Fisher. Claim on Appeal: Rehabilitation Act termination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: To state "regarded as" claim, employee must prove that (1) the employer believes that the employee has some impairment; and (2) subjectively believes that the employee is substantially limited in one or more major life activities, either with (a) direct evidence or (b) other evidence that the impairment imputed to the employee is objectively a substantially limiting impairment. Employee failed to establish that the service regarded the employee substantially limited in the major life activities of hearing, working or localizing sound, based on report showing employee had one functioning ear. Disqualification under the service's specific hearing standards and report of doctor who tested her not equivalent to evidence that employee cannot hear or work. Conclusory report by employee's expert that he interpreted service's medical report as stereotyping the employee's hearing not admissible to defeat summary judgment. Employee also fails to show that employer thought she was substantially limited in major life activity of work; she was excluded only from particular job at issue. Record of impairment claim fails for same reasons as above.

Dukes v. Wal-Mart Inc., 474 F.3d 1214, 99 FEP 1285 (9th Cir. 2007). Panel: PREGERSON, Hawkins [KLEINFELD, dissenting]. Claim on Appeal: Title VII pay and promotion (sex). Disposition Below: Class certification granted [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Lawsuit challenges nationwide pay and promotion practices at some 3,400 stores, said to discriminate against a class of 1.5 million current and former women employees. The panel affirms on Fed. R. Civ. P. 23(f) appeal district court's finding that the record raised "an inference that Wal-Mart engages in discriminatory practices in compensation and promotion that affect all plaintiffs in a common manner." Numerosity not contested. Commonality established by evidence of company-wide corporate practices and policies, statistical evidence of gender disparities and anecdotal evidence. Panel affirms the admissibility (for Rule 23 purposes) of sociological evidence by Dr. William Bielby (social framework analysis) and statistical evidence by Dr. Richard Drogin demonstrating a company-wide bias against promoting and compensating women employees equal to men, on FRE 702 and 703 grounds; all challenges implicate weight rather than admissibility. Full Daubert analysis need not apply at class certification stage. Statistician's methodology acceptably explains why regional rather than store-level analysis is correct. Chow test to determine whether data may be aggregated not required as a matter of law. Employer failed to appeal exclusion of its own statistical witness (Dr. Joan Haworth) on same grounds; her report may not be used on appeal to challenge district court's findings. It credited the 120 declarations of anecdotal witnesses in further support of commonality. The panel majority reaffirmed the principle -- common to class and individual Title VII cases -- that (consonant with the class's theory of the case) "subjective decision-making is a 'ready mechanism for discrimination' and that courts should scrutinize it carefully." The court held that it was unnecessary for a class to proffer a separate representative for each category of promotions to establish Rule 23(a) typicality: a "lack of a class representative for each management category does not undermine Plaintiffs' certification goal because all female employees faced the same discrimination." Regarding adequacy of representation, class may include supervisory and non-supervisory employees. The panel majority held that injunctive and declaratory relief may predominate in a Title VII case, for purposes of Rule 23(b)(2), even where the proposed equitable relief is monetary (i.e., back pay). It thus split (by implication) with the Fifth and Sixth Circuits, two courts that have more or less categorically barred certification of Title VII cases under Rule 23(b)(2). That some employees in class are former employees does not preclude finding that primary intent of plaintiffs as a whole is injunctive. Request for punitive damages not inconsistent with Rule 23(b)(2) certification; district court allowed individuals to opt-out of punitive damages. Back pay is equitable, consistent with Rule 23(b)(2) certification The panel majority held that a Teamsters model pattern-or-practice case does not require individualized damage hearings. It affirmed the class's proposed use of statistical modeling to estimate and allocate monetary relief, and determine shortfalls of promotions. The 1991 Civil Rights Act channeled disparate treatment claims into "single" (42 U.S.C. § 2000e-2(a)and "mixed" (42 U.S.C. § 2000e-2(m)) motive claims; choice of which theory to pursue belongs to the employee. Panel affirmed district court's plan to award -- on a class-wide basis -- punitive damages under Title VII. It rejects suggestion that 42 U.S.C. §1981a(b)(1) or due process compel individual determinations of punitive awards. Class award could, be allocated to absent class members (1) who can demonstrate an injury and (2) in proportion to whatever damages they personally suffered. Class's cross-appeal to expand back-pay relief for the promotion class denied. The panel affirmed the decision to confine back-pay individual class members who presented an objective interest in promotion.

Syverson v. IBM Corp., 472 F.3d 1072 (9th Cir. 2007) . Panel: BERZON, Rawlinson, Callahan. Claims on Appeal: ADEA termination. Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Under Older Workers Benefit Protection Act, 29 U.S.C. § 626(f), release held not enforceable where agreement was not written in a manner calculated to be understood by participants, as required by the OWBPA (citing 29 C.F.R. § 1625.22(b)(4) and Tender Back regulations). Covenant not to sue excluded ADEA claims, but release did not. Suggesting to employee that they consult lawyer before signing does not satisfy "manner calculated" requirement. Because agreement did not satisfy threshold statutory requirement, no occasion for panel to consider application of "totality of the circumstances" test. Thomforde v. IBM Corp., 406 F.3d 500 (8th Cir. 2005), decided the same way, did not support offensive nonmutual issue preclusion; although prior decision was final, no other prior judgments favored IBM's position (except the prior overruled district court decisions), and IBM was fully motivated to pursue the defense in both cases, the Thomforde case possessed a unique factual wrinkle (IBM refused to tell Thomforde what it meant by the language).

Walsh v. Nevada Dep't of Human Resources, 471 F.3d 1033, 18 A.D. Cases 1521 (9th Cir. 2006) . Panel: NOONAN, Cox, Paez. Claim on Appeal: ADA reasonable accommodation, harassment and discrimination . Disposition Below: Judgment on the pleadings, Fed. R. Civ. P. 12(c) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee's monetary claim was barred by immunity (Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001)). Individual claim against supervisors not recognized under ADA. Iinjunctive claim was not preserved in the complaint. In her prayer for relief, employee made an explicit claim for "injunctive relief to force the defendant to adopt and enforce lawful policies regarding discrimination based on disability." While this statement meets Rule 8(a)(3)'s requirement of a "demand for judgment," Nonetheless, employee's single reference to injunctive relief is unsupported by any facts or allegations regarding the Department's failure to adopt or enforce discrimination policies. Employee made no assertions that the discrimination she suffered was caused by the failure to enforce a state policy, or that such discrimination could be cured by an official policy.

Freitag v. Ayers , 468 F.3d 528 (9th Cir. 2006). Panel: REINHARDT, Noonan, Hawkins. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation First Amendment claims (not discussed here). Disposition Below: 1. Judgment after a jury trial ($500,000 in economic damages, $100,000 in non-economic damages on all claims; injunctive relief) [plaintiff]. 2. Judgment after a jury trial (back pay and benefits) [plaintiff]. Outcome on Appeal: 1. Affirmed, but damages remanded [plaintiff]. 2. Affirmed [plaintiff]. Grounds: 1. Harassment by non-employees (e.g., inmates) actionable against employer where it did not take immediate corrective steps when it knew or should have known of the conduct (citing 29 C.F.R. §1604.11). Sufficient evidence supported verdict that prison did not take appropriate corrective steps to prevent female employee's exposure to inmate's crude taunts and masturbation. Accepting job in prison does not constitute evidence that employee welcomed conduct. Even if employer was credited with latest date that employee complained, the remaining several incidents alone were severe or pervasive; even one incident might be enough. State's Inspector General's report and additional expert witness established that there were means that the prison could reasonably have used to reduce employee's exposure to inmate's behavior consistent with correctional requirements; report admissible as FRE803(6) and (8) business and public record. Although evidence was sufficient to support damages, remedy issue was to be remanded to district court in light of instructional issue on First Amendment claim. Because there was a prospect (on administrative appeal) that employee would obtain reinstatement, injunctive relief was not moot. 2. Evidence was sufficient to establish that employee's complaints about working conditions constituted opposition to sexual harassment and prison's failure to take action.

O'Donnell v. Venco, Inc., 466 F.3d 1104, 99 FEP 122 (9th Cir. 2006) . Panel: Per Curiam (Canby, Thompson, Hawkins). Claim on Appeal: 1. ADEA and Title VII discrimination. 2. EPA claim Disposition Below: 1. Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. 2. Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: 1.Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Dismissal for failure to prosecute under Fed. R. Civ. P. 41(b) not a violation of the bankruptcy stay for defendants, because it was not a "continuation" of the proceedings (11 U.S.C. § 362(a)(1)). Whether magistrate erred in dismissing first complaint waived by failure to file notice of appeal. Regarding second complaint, it was filed well more than 90 days after original right-to-sue letter. There can be no relation back to prior dismissed complaint. No abuse of discretion in denying tolling (because time had already expired on right-to-sue letter by the time the first complaint was dismissed) or estoppel (defendant took no action to prevent plaintiff from filing). No laches defense to motion to dismiss, despite that it was filed over two years after filing of second complaint. 2. Equal Pay Act claim was timely because amendment related bck to the filing of the second complaint under Fed.. R. Civ. P. 15(c)(2). EPA claims were equitably tolled because bankruptcy stay prevented employee from filing claim, a situation created by employer's filing in bankruptcy. Period from commencement of stay to 30 days after notice of termination of stay thus tolled. Each paycheck created its own violation, allowing plaintiff to reach back 2 to 3 years.

Bates v. United Parcel Service, Inc., 465 F.3d 1069, 18 A.D. Cases 897 (9th Cir. 2006). Panel: BERZON, Fletcher, Gibson. Claim on Appeal: 1. ADA and Calif. state law hiring. 2. California's Unruh Civil Rights Act ("Unruh Act"), Cal. Civ. Code § 51. Disposition Below: 1. Judgment after a bench trial (injunctive relief) [plaintiff]. 2. Judgment after a bench trial (injunctive relief) [plaintiff]. Outcome on Appeal: 1. Affirmed [plaintiff]. 2. Reversed [defendant]. Grounds: 1. Class challenge to facially discriminatory "forced whisper" policy to bar deaf/hard-of-hearing drivers, applying U.S. DOT standard for vehicles with a "gross vehicle weight" of 10,001 or more pounds to lighter trucks. Court found liability, and interlocutory appeal was taken by company from entry ofinjunction. Policy violates 42 U.S.C. § 12112(b)(6) qualification standards. Teamsters model does not apply to case involving facially discriminatory policy. District court applied correct standard for "qualified individual" under ADA, by not requiring plaintiff at prima facie stage to prove that he can drive "safely," a burden that belongs to the employer under business necessity. Employee maintained standing by showing that he was otherwise qualified for the position other than not meeting the "forced whisper" standard. Although employee must be "qualified individual" under ADA, employee does not have to prove that he meets facially-discriminatory qualification. Court notes split in circuit regarding whether "direct threat" applies on a safety issue related to performance of job, noting decisions in First and Tenth Circuits. That employee was not currently employed in a position from which he can bid for a driving job not material, because the policy deterred him from remaining in a driver eligible position. Employer failed to prove business necessity defense; employer would have been obliged to demonstrate that employees failing the "forced whisper" standard would have posed a greater safety risk than already accepted by the company. Evidence was inconclusive as to whether deaf drivers have an increased risk of accidents: studies relied upon by UPS suffered methodological flaws, human factors not persuasive because they depended on the impressions of hearing drivers; expert testimony was unpersuasive. Evidence that deaf drivers in the aggregate are involved in more accidents that hearing drivers not sufficiently individualized, such as factoring in accident history or amount of hearing loss. UPS also failed to prove that there were no practical criteria for determining which drivers posed a heightened risk, such as coniosdering driving histories; UPS never tried to train or accommodate a deaf driver or even studied the possibility. Injunction requiring UPS to drop DOT standard and perform individual assessments upheld. 2. Unruh Act does not apply to employment actions.

Allen v. Gold Country Casino, 464 F.3d 1044 (9th Cir. 2006). Panel: CANBY, Thompson, Hawkins. Claim on Appeal: 1. Title VII retaliation. 2. §§ 1981, 1985 termination against individual defendants. Disposition Below: 1. Dismissal under Fed. R. Civ. P. 12(b)(1) [defendant]. 2. Dismissal under Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: 1.Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Corporation founded by tribe to operate casino enjoyed sovereign immunity, which was not unequivocally waived by employee handbook that promised "equal opportunity employment." 2. Individual defendants were not cloaked in tribal immunity.

Bass v. County of Butte , 458 F.3d 978, 18 A.D. Cases 419 (9th Cir. 2006) . Panel: GRABER, Schroeder, Duffy . Claims on Appeal: California's Unruh Civil Rights Act ("Unruh Act"), Cal. Civ. Code § 51 (governing discrimination in public accommodations) and Disabled Persons Act ("DPA"), Cal. Civ. Code §§ 54, 54.1 . Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although California Assembly amended the Unruh Act and the DPA to provide expressly that "[a] violation of the right of any individual under the Americans with Disabilities Act of 1990 shall also constitute a violation of this section," without exception, panel holds that amendment was not intended to incorporate ADA Title I standards into these public accommodation statutes.

MacDonald v. Grace Church Seattle, 457 F.3d 1079, 98 FEP 950 (9th Cir. 2006). Panel: THOMPSON, Tashima, Callahan. Claims on Appeal: Title VII harassment (sex) and retaliation. Disposition Below: Judgment on the pleadings [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Proper time for employee to file a charge with the EEOC in this case was limited to 180 days, not 300 days. 42 USC § 2000e-5(e)(1). Although Washington a deferral state (by virtue of the Washington Law Against Discrimination (LAD)) recognized without exception under 29 C.F.R. § 1601.71(b), it expressly exempts "nonprofit religious organizations." This religious exclusion renders the Washington Commission -- for purposes of this claim -- not a deferral agency. Court eschews reliance on 29 C.F.R. § 1601.71(b), finding that the regulation is not a comprehensive listing of all possible exceptions. "As a result, the EEOC's designation in 29 C.F.R. § 1601.74(a) of the Washington Commission as a FEP agency without exception as to any charge is not determinative of whether the Washington Commission had subject matter jurisdiction over MacDonald's charges."

Dark v. Curry County, 451 F.3d 1078, 18 A.D. Cases 97 (9th Cir. 2006). Panel: O'SCANNLAIN, Nelson, Burns. Claims on Appeal: ADA and Or. state law termination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Reversed [defendant]. Grounds: Employee with epilepsy presented genuine issue of material fact about both liability and affirmative defense of direct threat. Disputed issues of fact attend the employer's decision to terminate. Employer claimed it was because employee got behind the wheel of a pickup truck shortly after suffering an aura (precursor to a seizure) and drove off the road, but termination letter does not state that reason, instead stressing employee's disability status. That county board later generated a different reason was immaterial, as decision had already been made before the board had an opportunity to approve it. At any rate, termination because of behavior caused involuntarily by the disability is form of disability discrimination. Also, it is sufficient that one motivating factor was disability, even if fact-finder credits subsequent reason. Also, record presents factual disputes about whether misconduct was a pretextual explanation of termination (e.g. was first subjected to medical examination rather than fired right away, termination letter referred to "medical condition," explanation given was concern for future accidents, similar accidents were not disciplined). While there was no genuine issue of material dispute about "essential functions" of job, as driving trucks and other heavy equipment was 65% of job, there was issue about whether the employer failed to extend a reasonable accommodation. Restructuring of job was not compelled by ADA, but employer was required to consider whether there are any current or anticipated absences in jobs that the employee could fill (county considered only current vacancies). Moreover, it might have been a reasonable accommodation for the employee to use accumulated sick leave or unpaid leave to recover from latest event (noting split in circuits about availability of indefinite leave to bring disability under control). Direct threat defense governed by same analysis; genuine issue of material fact whether affording accommodation would have mitigated alleged direct threat.

Moran v. Selig, 447 F.3d 748, 97 FEP 1825 (9th Cir. 2006). Panel: REINHARDT, Rawlinson, Fogel. Claims on Appeal: Title VII benefits (race). Battery claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Major League Baseball's payment of retiree medical and income to former players of the Negro Leagues, without comparable payment to retired MLB players, not a violation of Title VII. Even if the payments to Negro League players could be considered a term or condition of employment (as opposed to a charitable endeavor), claim would fail because eligible players were not similarly situated (i.e. black players were barred from playing in the major leagues, and thus from eligibility for MLB retiree benefits).

Berry v. Dep't of Social Services, 447 F.3d 642, 97 FEP 1833 (9th Cir. 2006 ). Panel: CALLAHAN, Farris, Tashima. Claims on Appeal: 1. Title VII reasonable accommodation (religion). 2. Title VII disparate treatment (religion). First Amendment claim (not discussed here). Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employer did not deny reasonable accommodation to evangelical Christian. While employer allowed employees to discuss religion among themselves, it avoided possible Establishment Clause entanglements by forbidding such discussion with agency clients or their families. Employer allowed employees to display religious items in their work stations, except where their viewing by clients might imply endorsement of the religious message. 2. The employer did not prohibit its employees from holding prayer meetings in the common break room or outside, but declined to open the Red Bluff Room (a conference room) to employee social or religious meetings as such use might convert the conference room into a public forum. No proof that similarly situated groups were treated differently; alternatively, desire to keep room from lapsing into public forum was legitimate, non-discriminatory reason.

Jesperson v. Harrah's Operating Co., 444 F.3d 1104, 97 FEP 1473 (9th Cir. 2006). Panel: SCHROEDER, Rymer, Silverman, Tallman, Clifton, Callahan, Bea [PREGERSON, Kozinski, Graber, W. Fletcher, dissenting] [KOZINSKI, Graber, W. Fletcher, dissenting] . Claims on Appeal: Title VII challenge to grooming policy (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Harrah's launched a "Personal Best" appearance standard that required woman servers to be made-up for work (but barred men from using make-up at all). Plaintiff neither complied with the directive, nor located another position to which "Personal Best" did not apply. Plaintiff failed to create genuine issue of material fact that "Personal Best" violated Title VII, either on a theory of unequal burdens or stereotyping. Where grooming standards are alleged to impose "unequal burdens" by sex, court must weigh relative burdens that particular requirements impose on workers of one sex against the distinct requirements imposed on workers of the other sex. Evaluating entire "Personal Best" policy, employee presented no evidence that the added cost or burden of wearing make-up imposed a discriminatory term or condition on female employees; court was not obliged under FRE201 to take judicial notice of this issue. While a grooming policy may be a form of sex-stereotyping prohibited under the Price Waterhouse case, court holds that plaintiff did not present evidence that policy was based on sex stereotypes, but only averred as to her own personal distaste for cosmetics.

Josephs v. Pacific Bell, 443 F.3d 1050, 17 AD Cases 1465 (9th Cir. 2006) Panel: LEAVY, Graber [CALLAHAN, dissenting]. Claims on Appeal: ADA and Cal. state law denial of reinstatement. Disposition Below : Judgment following a jury trial [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds: In "regarded as" case, jury found that the employer failed to reinstate an employee because it regarded him as mentally ill, owing to his prior involuntary commitment in civil and penal facilities for the mentally ill (and misdemeanor conviction for assaulting police officer). Although denial of reinstatement is a separately actionable claim that must be exhausted in an EEOC charge, plaintiff's claim survived because (1) claim was equitably tolled by EEOC representative misleading the employee (who was pro se) into believing that he needed an attorney before he could file a charge; (2) in this case, failure to reinstate was "unquestionably" related to his termination claim because they both arose out of the same incident. Evidence that employer's agents said that employee might not be employable because he spent time in a "mental ward" and might "go off" on a customer, and reviewed documents that labeled employee as "mentally disordered." Employer regarded employee in particular as significantly limited in the major life activity of working, because it could find no job within its organization that employee could fill and wanted to "eliminate the possibility" that any other employer would hire him. Employee was qualified as service technician; nothing in official job description disqualified violent offenders and at least one other technician had been convicted of a felony domestic violence offense. Evidence of grievance proceeding involving employee's attempt to return to work, and three co-workers' grievances and settlements (who had been accused of resume fraud, like plaintiff), were admissible notwithstanding FRE408. Language of mixed-motive instruction upheld over objection that it required employer to prove "but for" standard on its affirmative defense; jury necessarily found that employer would not have refused to reinstate employee for other reasons.

Hulteen v. AT&T Corp., 441 F.3d 653, 97 FEP 1025 (9th Cir. 2006). Panel: PLAGER, Trott [RYMER, dissenting]. Claims on Appeal: PDA benefits. Disposition Below: Summary judgment for plaintiff [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: No PDA/Title VII violation in awarding pension benefits calculated upon service dates that award pre-1979 pregnancy leave time less credit than comparable disability leave. The effect of demanding present-day equalization of leave time for the purpose of pension payments would make the PDA retroactive or else greatly extend that concept of continuing violation.

Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 97 FEP 930 (9th Cir. 2006). Panel: GOULD, Fisher [BEA, concurring]. Claims on Appeal: 1. Title VII, § 1981 and Ore. demotion (race). 2. Title VII and Wash. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant] Grounds: 1. Plaintiff, an African-American Chief Operating Officer who was demoted and eventually terminated from a financial institution. The district court did not err in refusing to reopen discovery to allow Cornwell to obtain a deposition of an employee who heard his superior (named Sharp) allegedly used an offensive racial slur to refer to a black employee (not Cornwell). Though allowing that such evidence was "strongly" probative of intent, the court concluded that the employee had not been diligent enough during discovery to commit this fact to sworn testimony. While the employer proffered a legitimate, non-discriminatory explanation of the demotion (to refocus the plaintiff on correcting the bank's lending business), the panel finds that the record contains evidence undermining the credibility of that explanation, including that (1) Cornwell was the sole African-American executive, (2) Sharp supposedly singled Cornwell out for exclusion from management meetings and decisions, (3) Sharp invited Cornwell to look for another job elsewhere when the plaintiff complained about being excluded, (4) a promotion went to a demonstrably less qualified white employee, and (5) management allegedly failed to investigate Cornwell's discrimination complaints. 2. No evidence that (1) supervisor who made demotion decision knew about employee's complaint of harassment complaint, or (2) complaint made seven months earlier supported causal link to eventual termination.

Kroske v. U.S. Bank Corp., 432 F.3d 976, 97 FEP 122 (9th Cir. 2006) . Panel: PAEZ, Tashima, Callahan. Claims on Appeal: Wash. state law termination (age). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: In calculating amount in controversy for removal, district court did not err in estimating potential emotional distress damages at $25,000. State act not preempted by National Bank Act, 12 U.S.C. § 24(Fifth) (the dismiss-at-pleasure provision), noting a split in the circuits with the Sixth Circuit. Also holding that dismiss-at-pleasure section is implicitly repealed in part by ADEA.

Hardage v. CBS Broadcasting Inc., 436 F.3d 1050 (9th Cir. 2006) . Panel: WALLACE, Silverman [PAEZ, dissenting in part]. Claims on Appeal: 1.Title VII and Wash. state law harassment (sex). 2. Title VII and Wash. state law retaliation. Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Male employee of television station allegedly harassed by female manager could not establish that he suffered an adverse employment action; no constructive discharge because employee remained on job five months after harassment ceased, and allegedly retaliatory performance memorandum was supported by employee's admitted insubordination and was otherwise unconnected to harassment. Under Ellerth/Faragher defense, employer maintained anti-harssment policy, employee did complain and harassment ceased. Employee twice requested that he about allowed to handle situation personally, and was vague about sexual nature of manager's advances. Employer was not obliged to investigate complaint over his express wishes; nor was it require to act prior unspecific complaints or apparently mutual sexual banter. Employee also unreasonably failed to take advantage of preventative measures by waiting six months to fully report the harassment. 2. Although adverse performance rating and 30-day probation was adverse employment action, there was no causal link to harassment complaints where actions were indisputably supported by non-retaliatory factors (insubordination, decline in sales numbers). Snide remarks by manager did not add up to severe or pervasive harassment.

Rivera v. Baker West, Inc., 430 F.3d 1253, 97 FEP 4 (9th Cir. 2005). Panel: BYBEE, Tallman, Bea. Claims on Appeal : Title VII harassment and discrimination. Disposition Below : Motion for involuntary dismissal [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Employer did not breach settlement agreement, which provided for "lawfully required withholding," by withholding $10,000 federal income tax and $3,060 FICA, where none of the alleged claims qualified for exclusion as physical injuries under 26 U.S.C. § 104(a)(2). Settlement agreement provided expressly for withholding, parties allocated no sums for physical injury or sickness, settlement appeared to be for back pay claims, and employer might have been liable if it did not withhold such amounts (26 U.S.C. § 3402(a)(1)).

EEOC v. United Parcel Service, 424 F.3d 1060, 17 A.D. Cases 129 (9th Cir. 2005). Panel: GRABER, Kleinfeld, Hawkins . Claims on Appeal: 1. Case #1: Calif. state law hiring (disability). 2. Case #2: Calif. state law hiring (disability). Disposition Below: 1. Partial summary judgment for plaintiff [plaintiff]. 2. Judgment after a bench trial [defendant]. Outcome on Appeal: 1. Affirmed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Applicants for position of light truck drivers were limited in the major life activities in seeing and working. (California FEHA -- in contrast to the ADA -- requires just a limitation, rather than a "substantial limitation," and working is recognized by California state law expressly as a "major life activity.") 2. Employer proved the FEHA safety-of-others defense as a matter of law to defend its exclusion of monocular persons from employment as light truck drivers. Defense provides that the employer avoids liability if the employee "cannot perform the essential functions of the position in question in a manner which would not endanger the health or safety of others to a greater extent than if an individual without a disability performed the job." Upon review of the record, court found that "potential for endangerment of human life justifies safety-based restrictions even when the risk of occurrence is modest."

Dominguez-Curry v.Nevada Transportation Dep't, 424 F.3d 1027, 96 FEP 744 (9th Cir. 2005). Panel: PAEZ, Thomas [CALLAHAN, dissenting]. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII promotion (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Employee presented triable issue of fact about whether manager's acts of harassment were severe or pervasive. He allegedly made numerous biased remarks about women in the workplace (e.g. they have no business in construction, he would not hire women) and sexually-explicit jokes. Contested issue of fact about frequency of comments, despite that plaintiff could not specifically quantify or date comments with particularity. District court also made erroneous credibility determinations against plaintiff and neglected evidence of co-workers about manager's comments. 2. Manager's repeated comments that he would not hire a woman and that women did not belong in construction were direct evidence of discrimination, even if they did not refer directly to the plaintiff. Evidence that manager said he was going to hire a "guy," even if ambiguous, must be read in a light most favorable to plaintiff, especially against a background of more specific sexist comments. Moreover, although manager was no ultimate decisionmaker, record presented triable issue of fact about his influence over the final decision. Even if it were uncontested that the male employee promoted had superior qualifications, employer could still be held liable for mixed-motive liability if sex was a motivating factor.

EEOC v. National Education Assoc., 422 F.3d 840, 96 FEP 556 (9th Cir. 2005). Panel: GOODWIN, Brunetti, Fletcher. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: EEOC presented triable issue of fact that harassment alleged was motivated "because of . . . sex." While manager's hostile acts were not overtly sex- or gender-related, summary judgment record established that his bullying behavior (invading employees' space, screaming, foul language and threatening physical gestures) was especially focused on female employees. Court holds that (1) evidence of disparate, subjective effects of harassment on male and female employees is relevant; and (2) fact that workplace has unbalanced distribution of men and women, and some men are also subject to harassment, does not defeat a showing of disparate treatment. Issue of liability of national union for misconduct occurring at a local affiliate remanded for consideration.

Porter v. California Dept. of Corrections, 419 F.3d 885 (9th Cir. 2005). Panel: CALLAHAN, Schroeder, Tallman. Claims on Appeal: 1. Title VII harassment (sex) 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Under Morgan, supervisor's decision to deny plaintiff a transfer during the 300 days prior to the filing of the charge may constitute a tangible employment action (although record was unclear about whether transfer would have involved significantly different responsibilities) and thus presents a genuine issue of material fact about whether the harassment claim continued. Although alleged harasser was not supervisor at the time of the harassment, but only at the time of the alleged retaliation, Ellerth/Faragher extends to "other person acting with the authority of the company," including (as in this case) agent who started out as co-worker but later became supervisor. Panel leaves unresolved whether quid pro quo liability may exist when harasser who was not a supervisor at the time of the events is promoted over plaintiff and then seeks retribution. Genuine issue of material fact presented whether reason for transfer was pretextual, in light of deviations from standard operating procedures in cancelling already-approved transfer. While discrete acts (refusing to grant vacation days, disciplinary acts, negative performance evaluations) may not be aggregated with non-discrete acts (propositioning, name-calling, glaring, insults) to constitute harassment, there were sufficient non-discrete acts by two agents to present a triable issue of fact. Also a genuine issue of material fact whether there was causal link between more recent acts of harassment and harassment that were otherwise several years' time-barred. 2. Although retaliatory act (denial of transfer) followed harassment by several years, it was not necessary under Breeden (to prove causal link) that the events occurred in close temporal proximity, where other evidence supplied inference (e.g., alleged harasser only first found himself in a position to retaliate when he was promoted over plaintiff, and he made remark indicating that he would have honored a request for a transfer for anyone but the plaintiff). Genuine issue of material fact presented whether reason for transfer was pretextual, in light of deviations from procedures noted above.

Galdamez v. Potter, 415 F.3d 1015, 96 FEP 102 (9th Cir. 2005). Panel: HUG, Berzon, Bybee. Claims on Appeal: 1. Title VII retaliation. 2. Title VII discrimination (race and national origin). 3. Title VII harassment (race and national origin). Disposition Below: 1. Denial of motion to amend [defendant]. 2. Judgment after a jury trial [defendant]. 3. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Reversed [plaintiff]. Grounds: 1. Failure to list retaliation in final pretrial order held to waive claim, where essential evidence was already known to plaintiff before pretrial order was filed. 2. Mixed motive instruction was given at trial, which inquired whether national origin was "a" motivating factor. Any ambiguity was cleared up on response to juror's note on the instruction. Form of special verdict not erroneous. 3. District court as a matter of law in denying an instruction that the Postal Service could be held liable for inaction against harassment by customers and community members. Jury was misinstructed that the employee had to show that the employer's failure to act was motivated by unlawful bias. That plaintiff was postmaster of her station did not mean that employer was relieved of her responsibility to prevent harassment. Evidence viewed in favor of plaintiff supported instruction, where she was verbally harassed by customers about her race, "culture," and accent over three years. Harassment included anonymous threats of injury and death (warned it was a "redneck" town, evoking mob violence, and "everyone" would get together to "kill her"). Evidence pointed to severe of pervasive harassment. Moreover, while employer offered employee a transfer, at the same time took disciplinary action against the employee and avowed that they had no obligation to investigate and told employee to "grin and bear it."

El-Hakem v. BJY Inc., 415 F.3d 1068, 96 FEP 84 (9th Cir. 2005). Panel: RAWLINSON, Nelson, Schwartzer. Claims on Appeal: Section 1981 harassment. State wage claim (not discussed here). Disposition Below: Judgment after a jury trial ($15,000 compensatory, $15,000 punitives) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Supervisor refusing to call Arab employee by his proper name, calling him "Manny" and "Hank" over repeated objections (at weekly meetings and periodic e-mails), stated a valid claim for pervasive racial harassment. While jury found liability only against supervisor for harassment, district court did not err pot-trial in holding employer vicariously liable for supervisor's conduct as a matter of law; district court originally erred in failing to give vicarious liability instruction, Title VII and section 1981 presume vicarious liability, defendant did not argue otherwise and record was not in dispute that supervisor was acting within the scope of his employment. District court did not abuse discretion by awarding full fees and not apportioning them between section 1981 claim and state wage claim, where latter was modest and did not occupy much time.

Coghlan v. American Seafoods Co., 413 F.3d 1090, 95 FEP 1825 (9th Cir. 2005). Panel: O'SCANNLAIN, Leavy, Bea. Claims on Appeal: Title VII failure to rehire (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff, a fisherman, had served as a master on fishing vessels for the company in prior seasons, 1997-2000, but was passed over as master in 2002, and offered only the inferior position of mate. The same manager, over successive seasons, made the decision both to promote the plaintiff to master and (eventually) to knock him down to mate. Plaintiff and two others, also replaced, were Americans; their replacements were Norwegian. Assuming that plaintiff made out prima facie case, he did not establish genuine issue of material fact about pretext. Regarding same actor inference, panel holds that "when the allegedly discriminatory actor is someone who has previously selected the plaintiff for favorable treatment, that is very strong evidence that the actor holds no discriminatory animus, and the plaintiff must present correspondingly stronger evidence of bias in order to prevail" on the third stage of the McDonnell Douglas test.

Head v. Glacier Northwest Inc., 413 F.3d 1053, 16 A.D. Cases 1606 (9th Cir. 2005). Panel: SCHWARTZER, Rawlinson [NELSON, concurring]. Claims on Appeal: 1. ADA and Ore. state law termination, disability or record of disability. 2. ADA and Ore. state law termination, perceived disability and retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. District court erred by requiring employee with depression and bipolar disorder to present expert testimony or comparative evidence to create a genuine issue of material fact regarding the impairment of a major life activity. Sleeping, interacting with others, thinking and reading are all major life activities. Plaintiff's own testimony on each issue was sufficient to present a genuine issue. 2. District court did not err in excluding FRE701 lay opinion testimony about cause or equipment failure. District court did err in using causation instruction that required jury to find that termination was "because of" disability. Plaintiff need not show that disability was sole cause for decision; "motivating factor" standard is appropriate. Analogizing to TItle VII and Desert Palace v. Costa, jury should be allowed to find that disability is one reason, because record reflected evidence that request for accommodation was a factor in discharge. Denial of proper mixed motive instruction was prejudicial.

Ingle v. Circuit City, 408 F.3d 592, 95 FEP 1290 (9th Cir. 2005). Panel: PREGERSON, Thompson, Wardlaw. Claims on Appeal: Federal and state discrimination. Disposition Below: Motion to compel arbitration denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Refusing to reconsider earlier holding denying arbitration in light of EEOC v. Luce Howard, 345 F.3d 742 (9th Cir. 2003) (en banc). Defendant sanctioned under FRAP 38 for frivolous appeal.

Lutz v. Glendale Union High School, 403 F.3d 1061, 16 A.D. Cases 1031 (9th Cir. 2005). Panel: KOZINSKI, W. Fletcher, Bybee. Claims on Appeal: ADA, Rehabilitation Act and Ariz. state law termination. Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Plaintiff waived right to jury determination of liability, and judge thus erred in trying entire case to jury. After her case was removed, plaintiff failed to make jury demand under Rule 38(b), nor did she follow state procedure to demand jury that would have satisfied Rule 81(c). Although plaintiff placed jury demand in prayer for relief, that demand was specifically limited to awarding back pay and compensatory damages, not determining liability. Adding jury demand to amended complaint did not restart clock under Rule 38(b), even if plaintiff added new counts, wher the additional counts simply restated the same theory under different statutes. Plaintiff could not rescue demand under Rule 39(b), because judge never exercised discretion to order a jury trial, and such an order under the circumstances would have been an abuse of discretion. On remand, judge can enter findings based on record already presented at trial. If judge finds liability for plaintiff, it does not violate Seventh Amendment to enter jury verdict amount. Jury's determination of back pay under any of the statutes invalid, because there was no jury trial permitted for such equitable claims; 1991 Act did not convert back pay into legal remedy. District court on remand should disregard inadmissible evidence concerning board's alleged violations of disciplinary rules. Judge did not abuse discretion in limiting number of witnesses or time to present case, or in denying sanctions against the plaintiff.

Mondero v. Salt River Project, 400 F.3d 1207, 95 FEP 577 (9th Cir. 2005). Panel: ALARCÓN, Siler, Silverman. Claims on Appeal: Title VII training (sex). Disposition Below: Summary judgment (defendant). Outcome on Appeal: Affirmed (defendant) . Grounds: Female employee did not present genuine issue of material fact about whether elimination of trial program to allow employees functioning as servicemen to obtain training and be paid at journeyman's scale. Evidence that one foreman commented about a woman "doing a man's job" not direct evidence because he was neither a decisionmaker, nor was there any evidence that his thoughts were communicated to superiors. Slight variations in employer's explanation for decision not evidence of pretext.

EEOC v. Peabody WesternCoal Co., 400 F.3d 774, 95 FEP 588 (9th Cir. 2005). Panel: W. FLETCHER, Hug, Alarcón. Claims on Appeal: Title VII Navajo hiring preference and records-keeping (42 U.S.C § 2000e-8(c)). Disposition Below: Summary judgment (defendant). Outcome on Appeal: Reversed (plaintiff). Grounds: EEOC not barred on grounds of nonjusticiable political question or Eleventh Amendment immunity from suing Navajo nation, which leased mines to extractor but imposed a Navajo hiring preference that precluded the hiring of non-Navajo Indians. Court also erroneously failed to act on records-keeping claim when it dismissed rest of suit.

Leonel v. American Airlines, Inc., 400 F.3d 702, 16 A.D. Cases 897 (9th Cir. 2005). Panel: FISHER, Cudahy, Graber. Claims on Appeal: ADA and Calif. state law medical inquiry. State constitutional law claim (not discussed here). Disposition Below: Summary judgment (defendant). Outcome on Appeal: Reversed (plaintiff). Grounds: Genuine issue of material fact whether employer violated medical inquiry provisions under 42 U.S.C. §§ 12112(d) (and its California state counterpart) by requiring that employees who received "conditional offers" submit to medical tests. (Plaintiffs were three candidates for flight attendant jobs who were HIV positive.) Defendant's offers to the appellants were by their terms contingent not just on the appellants successfully completing the medical component of the hiring process but also on the completion of a critical non-medical component: undergoing background checks, including employment verification and criminal history checks. Case remanded to determine whether the defendant could demonstrate it could not reasonably have completed the background checks before initiating the medical examination process.

Obrey v. Johnson, 400 F.3d 691, 95 FEP 531 (9th Cir. 2005). Panel: BYBEE, Brunetti, Graber. Claims on Appeal: Title VII promotion (race). Disposition Below: Judgment entered after jury trial (defendant). Outcome on Appeal: Reversed (plaintiff). Grounds: District court committed reversible error in individual pattern-or-practice suit by Native Islander by excluding the following evidence: (1) statistical report showing correlation of race and promotion at worksite; (2) testimony of a shipyard employee relating discriminatory comments he heard from officials; and (3) anecdotal evidence of three employees who believed they suffered race discrimination. Court uses occasion to reexamine and reconcile divided authority in circuit on harmless error.

Beentjes v. Placer County Air Pollution Control Dist., 397 F.3d 775, 16 A.D. Cases 720 (9th Cir. 2005). Panel: PAEZ, Ferguson, Reinhardt. Claims on Appeal: ADA reasonable accommodation. Disposition Below: Motion to dismiss denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds : District was not arm of the state and thus there was no Eleventh Amendment immunity from ADA claim.

Al-Safin v. Circuit City Stores, Inc., 394 F.3d 1254, 95 FEP 19 (9th Cir. 2005): Panel: TASHIMA, Paez [BEA, dissenting]. Claims on Appeal: Federal and Wash. state law anti-discrimination. Disposition Below: Motion to compel arbitration denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Modified rules of arbitration, which eliminated various disputed provisions (affecting remedies, costs of arbitration, and limitations periods) but was adopted after employee was terminated, did not apply to plaintiff. Contract was not properly modified under Washington state contract law. Prior, unmodified rules - though valid under state law - held substantively unconscionable under Washington state contract law. Disputed clauses so infected arbitration agreement that the entire contract was invalid.

Pardi v. Kaiser Permanente Hospital, 389 F.3d 840, 16 A.D. Cases 289 (9th Cir. 2004). Panel : MOSKOWITZ, Wallace, McKeown. Claims on Appeal: ADA retaliation and discrimination. State tort and contract claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: The plaintiff filed a breach of contract and tort action against Kaiser under California law, as well as an ADA retaliation and discrimination claim. The ADA claims related to statements made and documents shared by Kaiser with state licensure board. The district court held that the ADA claims were barred either by the release or by "California Civil Code § 47(b), which establishes an absolute litigation privilege for communications made in the course of litigation." Panel affirms enforcment of the release against Kaiser's pre-settlement conduct, but reversed dismissal of ADA post-settlement ADA claims. For the release, the panel found a potential breach of the contract bythe employer -- that "that a trier of fact could reasonably find that the Settlement Agreement obligated Kaiser to remove all references to its prior termination of Pardi in his personnel record and change Pardi's record to reflect a voluntary resignation by January 20, 2000." The court also rejected the assertion of a state litigation privilege against a federal cause of action on Supremacy Clause grounds.

Porter v. California Dept. of Corrections, 383 F.3d 1018, 94 FEP 928 (9th Cir. 2004) . Panel: CALLAHAN, Schroeder [TALLMAN, dissenting in part]. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. Outcome on Appeal: 1.Reversed [plaintiff]. 2.Reversed [plaintiff]. Grounds: 1. Under Morgan, supervisor's decision to deny plaintiff a transfer during the 300 days prior to the filing of the charge may constitute a tangible employment action (although record was unclear about whether transfer would have involved significantly different responsibilities) and thus presents a genuine issue of material fact about whether the harassment claim continued. Although alleged harasser was not supervisor at the time of the harassment, but only at the time of the alleged retaliation, Ellerth/Faragher extends to "other person acting with the authority of the company," including (as in this case) agent who started out as co-worker but later became supervisor. Genuine issue of material fact presented whether reason for transfer was pretextual, in light of deviations from standard operating procedures in cancelling already-approved transfer. While discrete acts (refusing to grant vacation days, disciplinary acts, negative performance evaluations) may not be aggregated with non-discrete acts (propositioning, name-calling, glaring, insults) to constitute harassment, there were sufficient non-discrete acts by two agents to present a triable issue of fact. Also a genuine issue of material fact whether there was causal link between more recent acts of harassment and harassment that were otherwise several years' time-barred. 2. Although retaliatory act (denial of transfer) followed harassment by several years, it was not necessary under Breeden (to prove causal link) that the events occurred in close temporal proximity, where other evidence supplied inference (e.g., alleged harasser only first found himself in a position to retaliate when he was promoted over plaintiff, and he made remark indicating that he would have honored a request for a transfer for anyone but the plaintiff). Genuine issue of material fact presented whether reason for transfer was pretextual, in light of deviations from procedures noted above.

Sagana v. Tenorio , 384 F.3d 731 (9th Cir. 2004). Panel: GOODWIN, Schroeder, Wallace. Claims on Appeal: Constitutional and § 1981 challenge to territorial law . Disposition Below: Motion to dismiss and summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Territory gives legal hiring preference to natives of Northern Mariana Islands. While district court erred in dismissing § 1981 claim based on complaint, judgment could be affirmed on alternative ground that Equal Protection challenge failed on the merits. Court finds that § 1981 supports a claim for alienage discrimination, based on statute's word "citizens" to describe class of white persons and history of citation of statute beyond racial discrimination claims by Supreme Court and other circuits. Territorial law violates neither Equal Protection nor § 1981 because it is tailored to reasonable objective of boosting local economy and regulating nonresident workforce. No substantive Due Process claim that law infringes unduly on right to choose one's employment.

Coons v. Secretary of U.S. Dept. of Treasury, 383 F.3d 879, 15 A.D. Cases 1702 (9th Cir. 2004). Panel: HUG, B. Fletcher, Tashima . Claims on Appeal: 1. Rehabilitation Act demotion. 2. Rehabilitation Act retaliation. Whistleblower Protection Act claim (not discussed here). Disposition Below: 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. Outcome on Appeal: 1.Affirmed [defendant]. 2.Affirmed [defendant]. Grounds: 1. While finding a genuine issue of material fact regarding the issue of impairment by stress-related ailments, travel for work is not a major life activity. There is neither a record of, nor evidence that the employer regarded plaintiff as, substantial limitation in any major life activity. 2. No causal connection between protected activity (asking for an accommodation) and demotion, where a year separated the events, there was no other evidence linking the events, and the agency could point to performance based reasons for the action.

Thomas v. City of Beaverton, 379 F.3d 802, 94 FEP 353 (9th Cir. 2004). Panel: FISHER, Goodwin, McKeown. Claims on Appeal: Title VII and Equal Protection retaliation. First Amendment, state tort and statutory claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff presented genuine issue of material fact on participating in a protected activity (participating in co-worker's Title VII suit) and causal link to an adverse employment action (being placed on probation seven weeks later).

Werft v. Desert Southwest Annual Conference of United Methodist Church, 377 F.3d 1099, 15 A.D. Cases 1409 (9th Cir. 2004). Panel: Per Curiam [Fernandez, Thomas, Callahan]. Claims on Appeal: ADA and state law termination and reasonable accommodation. Disposition Below: Dismissed under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Claim that pastor was fired from church after he requested, and was denied, reasonable accommodation of certain ailments barred by "ministerial exception" implied by Free Exercise clause of the U.S. Constitution.

Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 94 FEP 206 (9th Cir. 2004). Panel: FISHER [GOULD, concurring] [TROTT, dissenting]. Claims on Appeal: Title VII and Wash. state law harassment and retaliation. State law claims (not discussed here). Disposition Below: Dismissed under Fed. R. Civ. P. 12(b)(6) (converted to judgment on the pleadings) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Church's firing of, and other adverse employment decisions against, plaintiff (a female minister) are insulated from review by "ministerial exception" to anti-discrimination laws implied by Free Exercise clause of the U.S. Constitution. Nevertheless, reframing the claim to cover only the church's vicarious liability for an alleged hostile work environment (either discrimination or retaliation) and plaintiff's resulting emotional distress/reputational injury, case does not interfere with church's constitutional prerogatives and can be proceed in court. Church did not claim that church doctrine affected its response to the plaintiff's complaints of harassment. Court declines to find plaintiff's vow to resolve disputes internally with church to be enforceable arbitration agreement, but remands issue for consideration below. Remand directs district court to pay particular attention to discovery issues to prevent abuse or overbreadth.

Maduka v. Sunrise Hosp., 375 F.3d 909, 94 FEP 89 (9th Cir. 2004). Panel: WALLACE, Kozinski, Thomas. Claims on Appeal: Section 1981suspension of hospital privileges. Disposition Below: Dismissed under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff had no obligation to plead identity of non-African American doctor who received relatively better treatment.

Watkins v. Ameripride Services, 375 F.3d 821, 15 A.D. Cases 1229 (9th Cir. 2004). Panel: RAWLINSON, Silverman [W. FLETCHER, concurring]. Claims on Appeal: Cal state law reasonable accommodation disability claim. State law statutory claim (not discussed here). Disposition Below: Judgment after a bench trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer reasonably accommodated plaintiff's lifting restriction by offering vacant job for which he was qualified (doing telephone surveys), as well as temporary work as a delivery person, and held open plaintiff's job for one year in the event that he returned to work.

Fonseca v. Sysco Food Services of Arizona, Inc., 374 F.3d 840, 94 FEP 65 (9th Cir. 2004). Panel: B. FLETCHER, Reinhardt, Restani. Claims on Appeal: 1. Title VII and section 1981 denial of leave (race, national origin). 2. Title VII and section 1981 discipline and denial of overtime (race, national origin). Disposition Below: 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. Outcome on Appeal: 1.Reversed [plaintiff]. 2.Reversed [plaintiff]. Grounds: 1. Although Title VII claim was time-barred, section 1981 claim was timely under 4-year period. 2. Sanction excluding declaration of plaintiff's witness reversed because late-disclosure of witness was substantially justified and harmless. District court erred by excluding all of plaintiff's evidence of disparate treatment on hearsay/personal knowledge grounds. Genuine issue of material fact where plaintiff presented evidence between ten and thirteen times white employees got called in for overtime, while plaintiff did not. Although plaintiff successfully grieved five claims, his back pay was delayed by months instead of 48 hours as required by the collective bargaining agreement. Supervisor also supposedly told plaintiff "we're not going to waste three hours" cutting a check. Accumulation of these incidents was an adverse employment action. Additional evidence that disparate treatment was motivated by race included being ridiculed about his accent and subjected to inexplicable discipline for damaging property, when equally (or more) responsible white employees were not punished for same incident.

Enlow v. Salem-Keizer Yellow Cab Co., Inc., 371 F.3d 645, 93 FEP 1601 (9th Cir. 2004). Panel: ALARCON, Rawlinson [FERGUSON, dissenting in part]. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Action by employer, which fired plaintiff (age 72) because liability insurance policy only covered drivers no older than 70, furnished direct evidence that decision was based on age. McDonnell Donnell pretext analysis did not apply and district court erred in granting summary judgment to defendant on ground that plaintiff had not rebutted employer's avowed non-discriminatory reason (i.e. licensing requirement of city that all drivers have insurance). Summary judgment not appropriate for plaintiff, either, because employer was not aware of age-70 limit to policy when it bought it, did not buy the policy with an intent to discriminate by age (but instead to economize on premiums), helped him to find new temporary work and tried to persuade insurer to lift age restriction.

Luong v. Circuit City Stores, Inc., 368 F.3d 1109, 15 A.D. Cases 1123 (9th Cir. 2004). Panel: RYMER, Kozinski, Fernandez. Claims on Appeal: ADA discrimination . Disposition Below: Petition to vacate arbitration award denied [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although district court has federal question jurisdiction over challenge to arbitration award under FAA on manifest disregard of law grounds, arbitrator did not disregard Supreme Court decision in Toyota Motors in finding that plaintiff did not suffer a disability.

Bodett v. CoxCom, Inc., 366 F.3d 736, 93 FEP 1108 (9th Cir. 2004). Panel: HAWKINS, Fernandez, Thomas. Claims on Appeal: Title VII and Ariz. state law termination (religion). First Amendment and state tort claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff, who was terminated for harassing lesbian subordinate (e.g., inviting her to Christian conference, mentioning sexual orientation in performance review) presented no genuine issue of material fact that she was singled out for termination because of her evangelical Christian religious beliefs. Plaintiff failed to present prima facie case that others not of her religious persuasion were treated differently. Alternatively, employee failed to establish pretext; arguments that she did not violate employer's harassment policy and that employer did not follow its own standards for enforcing policy unsupported by record. (Plaintiff did not present failure to accommodate claim.)

Rivera v. Nibco, Inc., 364 F.3d 1057, 93 FEP 929 (9th Cir. 2004). Panel: REINHARDT, Hawkins [SILER, concurring]. Claims on Appeal: Title VII and Cal. state law termination. Disposition Below: Protective order in discovery [plaintiffs]. Outcome on Appeal: Affirmed on interlocutory appeal [plaintiffs]. Grounds: Employer not allowed to inquire into immigration status of plaintiffs, even as to possible impact on remedies or after-acquired evidence defense (holding limited the Supreme Court's Hoffman Plastic decision, barring back pay awards under NLRA to undocumented employees not qualified to work). Court recommends bifurcated proceedings to avoid immediate need for discovery into plaintiffs' ability to return to work.

Hernandez v. Hughes Missile Systems Co., 362 F.3d 564, 15 A.D. Cases 609 (9th Cir. 2004). Panel: REINHARDT, Magill, Fisher. Claim on Appeal: ADA refusal to rehire. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds:On remand from U.S. S. Ct., court remands case to district court for trial on the issue of whether employer failed to rehire plaintiff owing to his status as a recovered alcoholic per 42 U.S.C.§12102(2)(B)-©)), where record shows that company consulted its records, learned about plaintiff's past alcohol abuse, noted the same in its EEOC statement, but changed its reason for not hiring plaintiff (to an unwritten and uncertain policy of not hiring anyone previously terminated for cause) only after case was filed. Dissembling is evidence of pretext.

McGinest v. GTE Service Corp., 360 F.3d 1103, 93 FEP 557 (9th Cir. 2004). Panel: PAEZ, Reinhardt, [O'SCANNLAIN, concurring and dissenting]. Claim on Appeal: 1.Title VII harassment (race); 2.Title VII promotion (race); 3.Title VII retaliation. Disposition Below: 1.Summary judgment [defendant]; 2.Summary judgment [defendant]; 3.Summary judgment [defendant]. Outcome on Appeal: 1.Reversed [plaintiff]; 2.Reversed [plaintiff]; 3.Affirmed [defendant]. Grounds: 1.Genuine issue of material fact that behavior alleged was severe or pervasive (threats of violence; unequal application of work rules; racial graffiti; extreme racial insults, and more subtle taunts, by supervisors and coworkers). Incidents that were not specifically racial could be placed in context of common use of word "nigger" in workplace. White colleague also harassed for making friendships that crossed racial lines. Defendant did not raise Faragher defense on appeal; panel noted that anyone engaged in "supervision of or had authority" employee is deemed a "supervisor" for vicarious liability purposes. Genuine issue of material fact over prompt and effective remedial policy for coworkers, where only tangible step (before plaintiff filed an EEOC charge) was to paint over graffiti.; 2.Genuine issue of material fact of employer's reason for not promoting plaintiff (GTE unable to produce any documentation verifying that there was a salary freeze).; 3.No evidence of causal link between EEOC charge and events 18 months later.

Trichler v. County of Lake, 358 F.3d 1150, 93 FEP 378 (9th Cir. 2004). Panel: CUDAHY, Goodwin, Kleinfeld. Claims on Appeal: Cal. state law harassment (sex). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff lacked standing to challenge district court's assertion assumption of supplemental jurisdiction over state law claims after dismissal of Title VII claim on Eleventh Amendment grounds; immunity is state's to claim as affirmative defense and does not defeat subject matter jurisdiction. Judicial estoppel did not apply to prior, unappealed administrative finding against defendant. Court did not err in instructing jury that liability required a finding of discrimination; failure to investigate claim of harassment does not by itself fix liability. No error in verdict form that did not reiterate instruction to consider totality of circumstances, where jury instruction covered the same issue. Court did not abuse discretion by denying plaintiff leave to read lengthy document into record. Plaintiff failed to preserve objections to make offers of proof.

Peterson v. Hewlett-Packard Co., 358 F.3d 599, 92 FEP1761 (9th Cir. 2004). Panel: REINHARDT, W. Fletcher, Gould . Claims on Appeal: Title VII and Idaho state law termination and reasonable accommodation (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff terminated for insubordination after he repeatedly refused direction to remove anti-gay scripture quotes from workspace. No disparate treatment by enforcement of company's anti-bias policy against employee, which included protection of gay employees. Employer was permitted under Title VII to promulgate policy, post signs, and restrain contrary message by individual employee which he admitted was intended to be "hurtful" to passers-by who read them. Suggested accommodations (removing anti-bias materials or allowing plaintiff to post opposing views out in the open) would have constituted "undue hardship."

EEOC v. Pacific Maritime Assoc., 351 F.3d 1270, 92 FEP 1672 (9th Cir. 2004). Panel: ALDISERT, Graber, Gould. Claims on Appeal: Title VII harassment (sex). Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Association that operated dispatch hall for stevedores not a joint "employer" of plaintiff, where it did nothing to direct or control their work.

Topics Daily Developments in EEO Law EEO Case Summaries by Circuit Old "Daily Developments" Blog Archive Recent Updates September 08, 2010 Payne v. Salazar, No. 09-5291 (D.C. Cir. Sept. 7, 2010) September 06, 2010 EEOC v. Prospect Airport Services, No. 07-17221 (9th Cir. Sept. 3, 2010) August 31, 2010 Hatmaker v. Memorial Medical Center, No. 09-3002 (7th Cir. Aug. 30, 2010) August 30, 2010 Watson v. CEVA Logistics U.S., Inc., No. 09-3322 (8th Cir. Aug. 30, 2010); Sheriff v. Midwest Health Partners, No. 09-3367 (8th Cir. Aug. 30, 2010) August 27, 2010 EEOC v. UPS Supply Chain Solutions, No. 08-56874 (9th Cir. Aug. 27, 2010); Lewallen v. City of Beaumont, No. 09-40826 (5th Cir. Aug. 23, 2010) Archives August, 2008 March, 2008 Web Resources Other Employment Sites Worth a Spin (updated 12/19/08) General Employment Ross's Employment Law Blog Workplace Fairness Workplace Prof Blog George's Employment Blog Jottings by an Employment Lawyer Employment Law Information Network HR Lawyer's Blog Labor Employment Law Blog What's New in Employment Law? Regional Alaska Employment Law California Labor & Employment Law Blog Storm's California Employment Law Connecticut Employment Law Blog Delaware Employment Law Blog Milwaukee Employment Lawyer New York Employment Lawyer Blog Ohio Employers Law Blog [Virginia] The Laconic Law Blog Legal-Related, Not Specifically Employment, But Good Reading How Appealing Wait A Second! [Second Circuit cases] Robert Reich's Blog