Stephen Coppolo, a member of the Firm’s Employment Counseling and Litigation Group, reported the following:
In the case of Gross v. FBL Financial Services, Inc., the Supreme Court by a five-to-four vote threw a curveball that few people, including the parties arguing before the Court, saw coming. In Gross, the parties asked the Court to decide what type of evidence must be offered by an employee to in order to obtain a “mixed motive” jury instruction in an ADEA-discrimination case. The Court did not answer that question, instead determining that a “mixed motive” jury instruction is never warranted in an ADEA disparate treatment claim.
In plain English, the (former) practice in federal age-discrimination cases where the employee produced evidence that age was “a motivating factor” in the adverse employment decision was to shift the burden of proof to the employer to prove that it would have made the same decision even if it had not taken age into consideration. This is the same analysis used in race, gender, religion, or national origin cases under Title VII of the Civil Rights Act of 1964. After Gross, the burden of proof is the same in all ADEA claims, regardless of whether or not the employer offers a permissible motive for the employment action: the employee must prove that but for the impermissible reliance on age, the adverse employment action would not have occurred. Thus a special jury instruction in such “mixed motive” cases is improper.
While the decision is based on a technical statutory analysis and deals with slightly arcane evidentiary concepts, Gross is a win for employers as it relieves them of a heightened evidentiary burden. Strikingly, the Court’s five-Justice majority hinted that it might reevaluate the burden shifting approach in Title VII cases as well. This remains to be seen.
It also remains to be seen whether Congress will attempt to legislatively overturn Gross as it succeeded in doing with Ledbetter v. Goodyear Tire & Rubber Co.
The Supreme Court has ruled that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.
New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.
The ruling could alter employment practices nationwide, potentially limiting the circumstances in which employers can be held liable for decisions when there is no evidence of intentional discrimination against minorities.
“We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action….
[T]he record makes clear there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability in violation of Title VII.”
In February a federal jury in Boston awarded $1.6 million to a neurosurgeon who claimed a senior surgeon at Brigham and Women’s Hospital subjected her to sexist and racist comments, and retaliated against her for complaining. Dr. Sagun Tuli claimed Dr. Arthur Day trivialized female doctors, and during one surgery he allegedly said, “You are just a girl. Are you sure you can do that?” The facts of the case are set forth in an earlier order issued by the court. The jury found in favor of Tuli against the hospital for creating a hostile work environment, and for retaliating against her by requiring her to be evaluated by outside physicians after she complained. She also alleged slander against Day, and the jury found him liable. However, it only awarded her $1 on that claim.
In Gross v. FBL Financial Services, the Supreme Court, ending a long standing split in the circuits, held that a mixed-motives analysis cannot be used in age discrimination cases brought under the ADEA. This decision clarifies that a plaintiff alleging ADEA violations must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The Court held that even when a plaintiff has produced some evidence that age was a motivating factor in the adverse employment action, the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, as would occur in a Title VII case under Price Waterhouse and Desert Palace, and as many lower courts have long held should apply in ADEA claims.
A Warning to the Bar: Craft your Keywords Carefully Attorneys in the Southern District of New York can no longer cast a wide net when crafting search terms to discover electronically stored information ("ESI"). In a recent decision by the federal court for the Southern District of New York the judge admonished the entire Bar for its use of unspecific keywords, such as “build” and “claim,” and its lack of cooperation among the parties and those who actually wrote the relevant e-mails. The court noted that the best solution in the area of electronic discovery is cooperation among counsel and went on to warn that such cooperation is required, keyword searches must be carefully crafted with input from the custodians of the ESI, and the proposed methodology for retrieving ESI and eliminating production of large volumes of irrelevant information must be quality control tested to ensure accuracy.
The IRS is providing a series of filing tips to help tax-exempt organizations and tax practitioners as they prepare to file the redesigned 2008 Form 990. The latest tip explains how to complete Part VI, relating to governance.
An employee lost her claim against her manager who she claims discriminated against her because of her race and retaliated against her when she complained because Title VII does not provide a cause of action for one individual employee to sue another, says the First Circuit. The First Circuit has now joined every other Federal Circuit Court in this interpretation of Title VII. Specifically, the First Circuit found that the intent of Congress in passing the statute was to address the conduct of employers only and not to impose liability on co-workers.
The Massachusetts Legislature is considering SB 574 which would establish a Health Apology Pilot Program and encourage medical professionals to apologize for medical mistakes by making such apologies inadmissible in judicial proceedings. Even without the legislation some area hospitals have already implemented such programs. Recently, the Boston Medical Center apologized to the parents of a newborn who was given an excessive dose of morphine by a nurse. After the mistake was discovered the nurse and a doctor met with the family and offered to bring in a crisis team. The hospital released a statement to the media acknowledging the medication error, and promising an internal review and steps to prevent a recurrence. Since implementing a “sorry works” program six years ago the University of Michigan Health System has cut the amount it reserves for medical malpractice claims by 65%, reduced the number of open claims from 262 to 63, and cut the average time to resolve a claim in half. As a result, annual attorney fees for medical malpractice cases have dropped from $2.2 million in 2001 to less than $1 million in 2008. Similar successes are reported by the Henry Ford Hospital, which has reduced its medical malpractice expenses by 62% from 2001-2008, despite a 25% increase in patient volume during the same time frame.
An employee who suffered a demotion during his government-employer’s reorganization could not prove he suffered an adverse employment action in retaliation for his alleged public criticism of his department, and the court granted summary judgment on his claims in favor of the employer.
The employee, William Carlberg, sued his employer, the New Hampshire Department of Safety, after it completed a reorganization which, among other things, downgraded his job title and salary grade. Carlberg claimed that he was wrongfully demoted and that his employer violated the First Amendment by demoting or constructively discharging him in retaliation for publicly criticizing the department.
The United States District Court for the District of New Hampshire found that once his employers lawfully reorganized the department, Carlberg possessed no right to continued employment at his former rank and salary grade and was thus not entitled to any procedural due process under those circumstances. Carlberg claimed a property right in his rank stemming from a New Hampshire statute that mandates a hearing for any police employee that is demoted for cause, as well as a personnel rule that calls for a hearing in disciplinary demotions. Dismissing Carlberg’s argument, the court noted that both of these sources deal only with disciplinary demotions for cause, not demotions as a result of a lawful reorganization. The court held that New Hampshire law draws a distinction between disciplinary actions and personnel actions taken in the course of reorganization. Accordingly, while employees have a right to a hearing when their employer seeks to demote them for cause, they have no vested right to protection from a reorganization.
The court further found that Carlberg was also not deprived of any reputation-based liberty interest when his title was changed, because the reorganization was not personal to him, but affected all employees, and because there was no evidence that his employer defamed him when it announced the title changes.
Finally, in assessing whether Carlberg was demoted for publicly criticizing the department, the court declined to determine whether the reorganization was an adverse employment action because Carlberg offered no evidence to show that his speech was a substantial or motivating factor in his change of position, and the only evidence presented (Carlberg’s public comments, the lawfulness of the reorganization, and the treatment of similarly-situated employees) indicated that Carlberg was neither a target of any disciplinary action nor treated any differently than other employees that did not complain publicly.
LAW FIRM’S “MICKEY MOUSE” BEHAVIOR RESULTS IN DISQUALIFICATION
Following an auction gone bad, the owner of an item sued the auctioneer to recover damages when the high bidder was allowed to leave the auction without paying for the item. The item up for bid was a $1,500-ounce solid gold statue entitled “Celebration Mickey” and, yes, was of Disney’s famous rodent. The Massachusetts appeals court affirmed that the plaintiff’s law firm’s prior representation of the auctioneers and associated entities disqualified it from representing the plaintiff, especially in light of the firm’s prior dealing with the auctioneer’s lack of adherence to corporate niceties, potentially exposing the individual defendants to individual liability. R&D Muller, Ltd. v. Fontaine’s Auction Gallery, LLC, & others, 08-P-45, May 18, 2009 (Mass.Appeals.Ct.).
For more information on these topics, and prior issues of Professional Liability Updates, visit our ‘Articles’ topic on our website at www.nkms.com.
In 2006, a former employee file suit against Federal Express (“FedEx”), alleging (among other claims) that FedEx violated his rights under the Massachusetts Civil Rights Act (“MCRA”). The MCRA prohibits interference in rights granted under federal or state law by “threat, intimidation or coercion”. See MGL c. 12 sec. 11H. The United States District Court for the District of Massachusetts entered summary judgment in favor of the defendant FedEx, and the plaintiff appealed.
The plaintiff argued that FedEx had retaliated against him after he filed a complaint with the Occupational Safety and Health Administration (“OSHA”) concerning fumes in his delivery vehicle. The plaintiff recited various alleged failures to respond to his inquiries, to provide material safety data sheets on request, to provide a copy of his personnel file, an alteration in his service route, and performance counseling. The court found that none of these actions constituted “threat, intimidation or coercion” as required by the MCRA.
However, the plaintiff also alleged that during a meeting with a senior manager, the manager screamed at him and slammed her hands against the table. The plaintiff alleged she told him that because he had retained an attorney, his in-house appeal of various matters would no longer be considered. The plaintiff claimed he was “terrified” of her, and withdrew his request for both his personnel file and tuition reimbursement (the latter submitted pursuant to FedEx policy) as a result.
The court noted that whether the plaintiff himself was “terrified” was not dispositive. An objective test, not a subjective one, is applied to determine whether conduct rises to the level of “threat, intimidation or coercion”. The court held that under a subjective standard, no reasonable person would have been “terrified” by the conduct complained of. The court also noted that the manager was new to FedEx, and had not been involved in any of the prior incidents or the handling of the OSHA complaint. She had no knowledge of the OSHA action. Therefore there was no connection between her conduct and the statutory rights claimed by the plaintiff. The First Circuit Court of Appeals affirmed the grant of summary judgment.
In 2000, the Equal Employment Opportunity Commission (“EEOC”) found in favor of former postal clerk Robert DesRoches on his Rehabilitation Act Claim. The EEOC ordered DesRoches reinstated with back pay. The parties were unable to agree on a suitable position, and in 2002 DesRoches filed an enforcement petition with the EEOC. While that Petition was pending, the postal service offered to reinstate DesRoches and instead later ultimately paid him just over $300,000 in back pay and interest. DesRoches accepted the payment, but did not withdraw the enforcement petition because he believed he was owed additional back pay.
Only a month later, the EEOC reversed itself, denying the plaintiff’s enforcement petition. The EEOC found that DesRoches voluntarily ceased work before the alleged discrimination. Therefore, the defendant postal service owed DesRoches no back pay damages at all. DesRoches applied for judicial review of the EEOC opinion, and his request was denied. He then filed an amended Complaint requesting de novo review of his Rehabilitation Act claim. The postal service counterclaimed for unjust enrichment, and moved for summary judgment.
The United States District Court for the District of New Hampshire, Barbadoro, J., presiding, entered summary judgment in favor of the postal service on the Rehabilitation Act claim. The court based its ruling on it independent finding that DesRoches was never qualified for the position he sought. The postal service then moved for summary judgment on its counterclaim for unjust enrichment, seeking repayment of the $300,000 in damages.
The court ruled that the plaintiff had been unjustly enriched, and that the postal service was entitled to recover the damages paid. Specifically, the court noted that the award of damages was based on an alleged violation of the act that was found (by the court on de novo review requested by the plaintiff) never to have occurred. Therefore, reasoned the court, DesRoches “has no entitlement under the Rehabilitation Act to the money re received from the [postal service]”.
Object lesson: overreaching by Claimants and plaintiffs may render adverse judgments vulnerable to attack by the defense. If the Claimant had accepted the position offered by the postal service, the EEOC would never have reviewed the matter under his Petition for Enforcement. If he had accepted the $300,000 damages payment and withdrawn his Petition, the EEOC would never have reached its adverse finding. If the Claimant (now plaintiff) had never filed for de novo review, the court would not have had an independent basis for issuing the summary judgment ruling underlying the successful counterclaim.
If a Respondent or defendant receives an adverse ruling, look backward down the procedural trail. Concurrent or subsequent filings by the Claimant/plaintiff may leave him vulnerable to reversal.
Laurie Bishop, a member of the College & University Group has provided the following:
Chi Sang Poon v. Massachusetts Institute of Technology, (Mass. App. Ct.), May 6, 2009: A university’s proffered reason for its non-promotion of a research scientist, that the scientist had problems with his interpersonal skills, was not a pretext for racial discrimination based on the scientist’s asian race or Chinese national origin. No similarly situated non-asian scientists were promoted at time of the university’s challenged action. The university’s failure to conduct a full review procedure at the time did not show pretext, since the truncated procedure had been meant to mute criticism of the scientist’s shortcomings. The scientist had a documented history of episodic friction with students, staff, and colleagues. Finally, the university had a consistent explanation for the non-promotion
Laurie Bishop, a member of the College & University Group has provided the following:
In Gentry v. Jackson State University, 2009 WL 1097818 (S.D. Miss. April 17, 2009), the court applied the Ledbetter Act to save the Title VII claim of Laverne Gentry who was denied tenure and a related salary increase by Jackson State University in 2004. The university argued that the claim was untimely because it was filed in 2006, well outside the 180 time limit for bringing Title VII claims. The court recognized that ‘discrete’ acts, such as a failure to promote or a failure to grant tenure, are not affected by the Ledbetter Act. The court denied the university’s motion for summary judgment, however, finding that when the ‘discrete’ act is accompanied by a salary decision it becomes subject to the Ledbetter Act as a ‘compensation decision’ and each paycheck after that decision restarts the 180 day limit.
U.S. Seventh Circuit Court of Appeals holds that refusal by a university to provide a certified transcript to a student following the discharge of her student indebtedness by a bankruptcy court violated the discharge injunction under Sec. 524(a) of the Bankruptcy Code, because such refusal constituted an act to collect her unpaid debt.
“On April 16, 2009, Virginia Tech will remember the vibrant lives of 32 students and faculty who were tragically taken from their loved ones and our community. Through reflection, spoken word, music, and service, we honor those who lost their lives and those who survived”.
A truck driver who lost his job allegedly because of his seizure condition and later won a judgment at trial against his former employer in the amount of $757,701 in lost wages and $370,678.58 in attorneys fees and costs wound up losing it all on appeal to the Supreme Judicial Court because he did not previously file a separate charge of discrimination at the Massachusetts Commission Against Discrimination (MCAD) for the last act of discrimination that formed the basis of the jury’s verdict. The truck driver first lost his job in 1996 and he filed his charge of discrimination with the MCAD over that discharge, alleging discrimination on the basis of disability. The MCAD concluded its investigation in December, 1998, and issued a finding for lack of probable cause. Just a month later, the truck driver again sought to work for his former employer and he faced yet another rejection when the company refused to hire him back because, he later claimed, of his history of disability. When the truck driver filed his discrimination complaint with the Superior Court, he was vague about whether he was suing for his discharge in 1996 or for the company’s failure to rehire him in 1999. At trial, the truck driver ignored his claims from 1996 and presented only his allegation that the company failed in 1999 to rehire him because of his history of disability. His problem, however, was that he never submitted his 1999 claim about the alleged failure to rehire with the MCAD, and the 1999 failure to rehire claims were never within the scope of the MCAD’s investigation which concluded in 1998. All employees bringing discrimination claims in court must first bring them at the EEOC or the MCAD in Massachusetts, and the truck driver’s failure to raise the 1999 claims at the MCAD before going to court meant that the court did not have any power to hear the case at all. As a result, the Supreme Judicial Court dismissed the case, and the massive verdict, on the grounds of lack of subject matter jurisdiction.
In its reasoning the court explained that in general, the MCAD complaint establishes the claims and factual allegations for the subsequent filing in Superior Court. The general rule, according to the court, does not mean that the administrative complaint sets a rigid “blueprint” for the civil action. Under what is often termed the “scope of the investigation” rule, “a claim that is not explicitly stated in the administrative complaint may be asserted in the subsequent Superior Court action so long as it is based on the acts of discrimination that the MCAD investigation could reasonably be expected to uncover.”
The truck driver in this case insisted that since he was complaining about disability discrimination in employment with respect to both the 1996 and the 1999 actions, the 1999 failure to rehire was based on the acts of discrimination that the MCAD could reasonably be expect to uncover when conducting its investigation regarding the 1996 discharge. The court pointed out, however, that the MCAD concluded its investigation with a finding of no probable cause in December, 1998, and that it was therefor impossible to reasonably expect such investigation to uncover subsequent alleged discrimination in 1999.
This was no doubt a tremendous reversal of fortune for this plaintiff employee. It is also a reminder that your relationship with your employees continues after the employment relationship itself terminates, and that subsequent actions could create an independent basis for liability even after the employee has walked out the door.
A boss who engages in a profanity-laden shouting tirade at his subordinate does not necessarily make the work environment so unbearable as to cause a reasonable employee to quit; nor would such conduct alone be significant enough to rise to the level of unlawful retaliation even if it had been in response to protected activity, says the United States District Court for the District of New Hampshire.
Surprised? Here’s the background:
The employee, a junior lawyer in a state office, objected to being required to punch a time clock for her salaried position when her more senior male colleagues were not required to do so. When the employee brought her concerns to her boss, he allegedly became enraged and stormed into her office, where he insulted her and threatened to subject her job performance to heightened scrutiny if she filed a grievance against his office. The employee also alleged that her boss insisted that she continue punching the time clock until after she had been there a year. The employee quit the following day and brought a lawsuit alleging constructive discharge and retaliation.
The District Court ruled that such allegations, without more, fail as a matter of law to demonstrate gender discrimination, retaliation or constructive discharge. As a result, the employer’s summary judgment motion was granted.
As for the claim for gender discrimination, the Court observed that requiring the plaintiff to punch a time clock did not rise to the level of disparate treatment required for a claim of gender discrimination.
As for the constructive discharge claim, the Court determined that the employee’s allegation that her boss would impose difficult working conditions on her as a result of her complaint resembled merely “the ordinary slings and arrows workers routinely encounter in a cold, hard world” and not a condition giving rise to the objective belief that the worker has been fired in all but name.
As for retaliation, the Court explained that an employee must show that she has suffered an adverse employment action after having participated in a protected activity. In this case, the Court determined that the employee failed to show that she had suffered an adverse employment action. “[C]onfronting [the Plaintiff] with a raised voice on one occasion … does not approach the materially adverse employment action necessary for a retaliation claim.” According to the Court, even the threat of “heightened scrutiny is not itself an adverse employment action sufficient to show retaliation.”
Don’t read the Court’s decision as a license to abuse your employees, but it does seem to give employers some more leeway than they might have expected. The one-time nature of the incident and the immediate resignation before the employer could either act on the threat or correct the misconduct through an apology or otherwise played a significant role in this decision. That said, whether this decision holds up on appeal remains to be seen.
The New York Times has an interesting piece on a recent and troubling phenomenon: jurors with I-phones and Blackberrys who conduct their own research during a trial, despite the Judge’s admonition not to do so.
In one case, 9 jurors admitted to having conducted such research, with terrible results: the judge “had no choice but to declare a mistrial, a waste of eight weeks of work by federal prosecutors and defense lawyers.”
The problem with well-meaning and curious jurors is that “the rules of evidence, developed over hundreds of years of jurisprudence, are there to ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides” (as noted in the article by Olin Guy Wellborn III, a law professor at the University of Texas), but “[y]ou lose all that when the jurors go out on their own.”
