Tag Archive for: summary judgment

Fifth Circuit eliminates the Ultimate Employment Decision requirement in Title VII discrimination cases

In a case entitled Hamilton v. Dallas County, the Fifth Circuit eliminated the “ultimate employment decision” requirement in Title VII discrimination cases. The case is significant because the requirement for an employer to have taken an actual adverse employment action, in other words to have made some some “ultimate employment decision” that affected the plaintiff’s employment, has been a threshold requirement that allowed judges to review whether a case warranted litigation. Whether judges should even be doing so has itself been an on-going policy debate.

By eliminating this threshold, the Fifth Circuit may have put itself at odds with a number of other courts creating a split that may well rise to the Supreme Court.

The actual impact of this decision — if it withstands Supreme Court review — is arguable since even the Fifth Circuit still requires the plaintiff to prove the discrimination impacted their “hiring, firing, compensation, or other ‘terms, conditions or privileges’ of her employment.” indeed the Fofth Corcuit characterizes its own decision as simply simplifying its own test to bring it in line with other Circuits, which focus on whether there has been a showing of an impact to hiring, firing, etc. In other words, the decision may be more about the semantics of how the Fifth Circuit phrases its test rather than any substantive split.

Tenth Circuit tightens up on Title VII claims

In a case titled Sanderson v. Wyoming Highway Patrol, the Tenth Circuit tightened up on a plaintiff’s ability to bring Title VII claims.

First, the Tenth Circuit affirmed summary judgment on the plaintiff’s retaliation claim because she had not alleged it in her EEOC Charge of Discrimination. In her EEOC Charge, she’d alleged retaliation after she was demoted, but when she sued, she added a claim for retaliation based on events before her demotion. Because her EEOC Charge did not allege the latter, the Tenth Circuit held she had failed to exhaust Title VII’s administrative requirements.

Second, the Tenth Circuit affirmed exclusion of her offered expert “who, based on her own experience (not experience specific to the employer), would have testified about gender stereotypes in law enforcement.” The Tenth Circuit agreed with the trial court that no expert testimony is appropriate on such a topic “because gender stereotypes are within the jur(y)’s common knowledge and experience.”

Third, the Tenth Circuit then ruled for the plaintiff, reversing summary judgment, holding a jury trial was warranted on her claim of a hostile work environment based on her sex. The Tenth Circuit held that persistent “rumors … that she engaged in sexual relationships with colleagues and supervisors,” allegations by coworkers that she’d engaged in “flirting with non-colleagues” while on duty, were sufficient to warrant trial, especially where she’d once been ordered “to answer her radio when she was ‘douching,'” which was of course a clearly derogatory (alleged) comment on the basis of her gender. In addition she’d offered circumstantial evidence suggesting her colleagues excluded her because of her gender, where for example one coworker had bought everyone a breakfast burrito but her.

Supreme Court reaffirms importance of “but-for” analysis in certain kinds of discrimination claims against private employers

An on-going issue in litigation is frequently the standard of causation and whether a plaintiff’s allegations and evidence are established to meet it. One of the more strict standards is the “but-for” test, meaning a plaintiff must show that the adverse employment action (such as termination or refusal to hire) would not have occurred “but for” their membership in a protected class. One of the least strict standards requires the plaintiff to prove only that their membership in a protected class was “a motivating factor” in the decision.

Two recent Supreme Court decisions reinforced the role of “but-for” analysis in at least certain kinds of cases.

First in  Babb v. Wilkie, the Supreme Court held that governmental employers do not enjoy the protection of “but for” analysis in age discrimination claims, even though private employers have and continue to be able to assert the need for “but for” proof in age discrimination cases.

We are not persuaded by the argument that it is anomalous to hold the Federal Government to a stricter standard than private employers or state and local governments. That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so. 

Second in Comcast Corp. v. National Association of African American-Owned Mediaa unanimous Supreme Court held that a plaintiff asserting a sec. 1981 claim against a non-governmental defendant must meet the stricter “but-for” test, rather than the less strict “motivating factor” test.

Readers are reminded that the “motivating factor” test is the applicable test in some types of claims. As the Supreme Court explained in Comcast, the issue depends upon the specific statute, its language and its legislative history, as well as the extent of relief sought on the claim asserted.

Tenth Circuit holds plaintiff’s case insufficient even though supervisor kept a special file on the plaintiff in case he some day decided to “pull the race card”

The Tenth Circuit held a plaintiff failed to establish a case worthy of trial, entering summary judgment for lack of evidence of discrimination, even though the plaintiff submitted evidence his supervisor had kept a special file on him because, plaintiff contends the supervisor admitted, he feared plaintiff would some day “pull the race card.”

The plaintiff, who was African-American, sued because he’d been denied a promotion. That same supervisor had evaluated the candidates for promotion and was part of the 4-person panel that decided not to promote plaintiff.

The Tenth Circuit held, first, that the supervisor’s having kept a special file on plaintiff was not an indication of discrimination. This was true even though the evidence suggested the supervisor hadn’t kept such a file on any other individual. The Tenth Circuit held further that it was non-discriminatory even if the supervisor had said he was keeping the special file because he feared plaintiff would “pull the race card.” The Tenth Circuit said that admission suggested merely that the file was
“a precautionary measure, not a symptom of invidious animus.”

Then, the court held, even if other evidence did suggest a discriminatory animus, the plaintiff had failed to prove that the supervisor’s animus had somehow infected the other three panelists.

Employers are cautioned this case illustrates a difficult tension in the current status of analyzing motions for summary judgment. It remains to be seen whether future courts will agree that keeping a special file only on a minority worker is somehow non-discriminatory simply because the supervisor fears the worker will “play the race card.” Indeed the Tenth Circuit itself did not identify the decision for official publication, saying it was “not binding precedent,” although it can nonetheless be cited “For its persuasive value.”

Source: Sasser v. Salt Lake Citycase no. 17-4198 (10th Cir. 5/20/19).

Denver federal court, one of the most pro-employee?

In what is likely to be a bombshell article amongst Colorado labor and employment attorneys, Bloomberg BNA reported today that its analysis of judicial statistics shows Denver’s federal court to be the most employee-plaintiff friendly of 11 federal courts it has analyzed. “The other courts Bloomberg Law has reviewed are: the Eastern District of New York, the Northern District of Alabama, the Northern District of Illinois, the Western District of Washington, the Middle District of Florida, the Western District of Wisconsin, the Northern District of Texas, the Central District of California, the Western District of Oklahoma, and the Northern District of Ohio.”

The District of Colorado grants employers’ motions for early dismissal—made right after a lawsuit is filed—just 36.7 percent of the time in job bias and similar cases. It dismisses such cases on the eve of trial—following a motion for summary judgment—at a 45.8 percent clip. That gives Denver workers something extra to be cheery about, in addition to the more than 200 beers crafted in the city each day and the playoff-contending Colorado Rockies.

Interested in how particular judges rank? Bloomberg BNA analyzed them individually and provides what it views as the relevant statistics for each, concluding,In all, eight of the 11 judges granted early motions to dismiss in employment cases less than 40 percent of the time.

Source: Workers Suing in Denver Federal Court Feeling Rocky Mountain High, P. Dorrian (9/21/18).

Eighth Circuit weighs in on Shifting Reasons doctrine

In a recent post, this blog discussed an Eleventh Circuit case on the Shifting Reasons doctrine, in which a plaintiff argues that their case warrants a trial because the employer has provided shifting reasons, suggesting the real reason was an unlawful intent. As noted in our prior blog post, this is one of the most common arguments plaintiffs make in response to a motion for summary judgment.

Now it’s the Eighth Circuit’s turn, and like the its sister, the Eleventh Circuit, the Eighth Circuit rejected the plaintiff’s claim of shifting reasons, holding that an employer can “elaborate” on its reason, provide additional examples or flesh out its reason, without it being considered “shifting reasons.”

(I)t is well-established that a employer may elaborate on its explanation
for an employment decision. Evidence of a substantial shift in an employer’s explanation for a decision may be evidence of pretext, but an elaboration generally is not.

(Citations omitted.)

In this case, when Rock-Tenn fired Rooney, it told him the reason was poor performance with regard to his “interaction with coworkers” and “failure to support” one particular client. Then after he sued, it gave as additional examples his (alleged) poor performance as to other clients. The Court held that was not a shift in the reason for his discharge, just further explanation.

These two Circuit Court decisions illustrate how common the Shifting Reasons doctrine is used by plaintiffs and the need for plaintiffs to show a true shift in the reason, not simply an elaboration of the reason.

Source: Rooney v. Rock-Tenn Services, Inc. (8th Cir. 1/9/18).

Tenth Circuit restates summary judgment test with extensive discussion of multiple ADA and general employment law doctrines

The Tenth Circuit restated the test for granting summary judgment in favor of employers, and in doing so extensively discussed multiple doctrines frequently raised in such motions, including the honest belief doctrine, the adequacy of an employer’s investigation and the reasonableness of requested accommodations. With the regard to the last doctrine, the court noted that, as a matter of law, when workers advise their employers of a disability and request an accommodation after they have engaged in workplace misconduct, it is not a reasonable accommodation to ask that such misconduct be excused due to their disability. The court cited its 2004 precedent, Davila v. Quest Corp., Inc., for the proposition that “excusing workplace misconduct to provide a fresh start/second chance to an employee whose disability could be offered as an after-the-fact excuse is not a required accommodation under the ADA.” The Court concluded that “a denied request for retroactive leniency cannot support an accommodation claim.”

The case was DeWitt v. Southwestern Bell Telephone Co., 845 F.3d 1299 (10th Cir. 2017).

 

Allegedly condescending use of “she” in reference to plaintiff held sufficient to support triable claim of gender discrimination

Discrimination and harassment claims are often supported by a constellation of evidence designed to show that the employer’s proffered legitimate business reason for discipline or discharge was in fact a pretext for discrimination. In this case, the First Circuit held a supervisor’s use of “she” in a condescending tone to refer to the plaintiff was, along with other evidence, sufficient to warrant a trial, because a “speaker’s meaning may depend on various factors including context, inflection, tone of voice.”

Here, a meeting attendee, SFAM Ouellette, stated in an affidavit that Johnson “made frequent references to the way `she’ was doing things. He emphasized the word `she.'” SFAM Ouellette opined that he “felt it was a condescending way to speak about her and picked up on [Johnson’s] disdain for her and for [Ouellette] when [he] defended her.” SFAM Ouellette’s observations about Johnson’s tone are based on his perception as a seasoned manager on what he had just observed, not mere speculation.

The case was Burns v. Johnson, 829 F.3d 1 (1st Cir. 7/11/16).