Plaintiff, a Trinidadian man, was hired and later promoted to Associate Controller of the Contracts and Grants Department at FIU.   In this position, plaintiff was responsible for overseeing compliance with federal accounting regulations for federal grants awarded to FIU faculty.  In 2003, FIU was fined $11.5 million for violations of federal accounting regulations that were discovered in an audit of research grants awarded to FIU faculty members.  As a consequence of the federal audit and resulting fine, FIU reorganized its research grant structure, eliminated plaintiff’s department and position, and created a new department.  Upon learning that his position was being eliminated, plaintiff complained of race discrimination to his supervisor and FIU’s Assistant Vice President of Human Resources.   Plaintiff applied for a position with the newly-formed department and, after an interview, the search committee did not recommend plaintiff for the new position.  Plaintiff’s supervisor and FIU’s Assistant Vice President of Human Resources did not participate in plaintiff’s interview and had no involvement in any decision regarding hiring plaintiff for the new position.  Plaintiff located other employment outside of FIU and resigned before his termination date.  The new position remained vacant for 19 months. Plaintiff filed suit against FIU, alleging racial discrimination for eliminating his position and retaliation for complaining about racial discrimination by not being recommended for the new position.  At trial, a jury returned a verdict in plaintiff’s favor, awarding him $72,241 in lost wages and $2.5 million in compensatory damages. 

The Florida Court of Appeal held that plaintiff was unable to establish a prima facie case of race discrimination under the Florida Civil Rights Act of 1992 (FCRA) pursuant to the framework set forth in McDonnell Douglas Corp v. Green.  The Court of Appeal held that plaintiff failed to present evidence that similarly situated employees outside of his protected class were treated more favorably.  Plaintiff argued that another employee, while her official title was different, her job responsibilities were equivalent to the new position and she was treated more favorably than plaintiff.  The Court of Appeal rejected this argument and stated that evidence of FIU hiring an employee outside of plaintiff’s protected class for the same position approximately 19 months after plaintiff applied for the position does not, without more, create an inference of discriminatory intent.  Similarly, the Court of Appeal held that plaintiff failed to establish a prima facie case of retaliation under the FCRA as he was unable to demonstrate any evidence that the search committee knew of his complaint of discrimination, and therefore, had cause to retaliate.       

To read the entire Court of Appeal decision, click here. 

The Court specifically held that “[i]f a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”  Although the case arose under USERRA and not one of the other civil rights laws such as Title VII, some commentators hope that the courts will apply the “cats paw” theory in those cases as well.  Other blogs with commentary can be found here, here, here and here.

Cassandra Smith began working for Hooters in 2008, and claims she weighed 145 pounds at the time she was hired.  After two years of successful performance reviews and a promotion to Shift Leader, Smith alleges that during her May 2010 evaluation she was placed on “weight probation,” because her extra small uniform no longer fit properly.   (According to Smith, the three available sizes for Hooters uniforms are small, extra-small, and extra extra-small).  Smith claims that management offered her a free gym membership, and told her she would need to lose weight within 30 days or face termination, even though she now weighs 132.5 pounds.   Rather than face the indignity of a 30-day weight probation, Smith quit her job and brought suit for violation of Michigan’s Elliott-Larsen Civil Rights Act, which prohibits discrimination based upon a variety of factors including weight.  In response, Hooters denied that it has a weight requirement, and said it instead maintains image standards for fitness and appearance, similar to those imposed by the Dallas Cowboy cheerleaders and the Radio City Music Hall Rockettes.

Michigan’s law is the only one in the U.S. that prohibits weight discrimination.  A handful of U.S. cities, including Washington, D.C. and San Francisco, also prohibit discrimination based upon appearance.

WSJ Law Blog has a story here.

In its opinion, the Ninth Circuit began by clarifying the Supreme Court’s standard for class certification.  The court stated that in determining whether to certify a class, a district court must conduct a “rigorous analysis” to make sure that all of the requirements for class certification are met, which in some instances may require an inquiry into the factual issues, and sometimes the merits, of a case.  The court found that the district court had applied this standard in determining class certification.  Specifically, with regards to the issue of commonality, the court found that the plaintiffs had provided sufficient evidence of common questions of law or fact to satisfy the requirements of Rule 23(a), and that the district court had properly satisfied itself that this requirement had been met.  On the typicality issue, the court rejected Wal-Mart’s argument that the class representatives were not typical of potential class members who held management positions, stating that “because all female employees faced the same alleged discrimination, the lack of a class representative for each management category does not undermine Plaintiffs’ certification goal.”

The court also found that the district court properly certified the class under Rule 23(b)(2), which applies to cases where claims for injunctive or declaratory relief predominate.  The court rejected Wal-Mart’s argument that the claim for back pay prevented certification under this rule.  The court remanded the issue of whether certification under Rule 23(b)(2) is appropriate for punitive damages claims.  The court also found that certification under Rule 23(b)(2) would not be proper with respect to those individuals who were no longer employed by Wal-Mart as of the date of the complaint because they lacked standing to seek injunctive or declaratory relief.  But, the court stated that such individuals may still be eligible for back pay and punitive damages as part of a separate class certified under Rule 23(b)(3).  Although acknowledging Wal-Mart’s concerns that the potential size of the class could raise due process and manageability issues, the court emphasized that the district court had discretion to modify or decertify the class should it become unmanageable. 

Wal-Mart, who is the world’s largest private employer, has stated that it may appeal the Ninth Circuit’s ruling to the Supreme Court.  The company issued a statement saying that, “We do not believe the claims alleged by the six individuals who brought this suit are representative of the experiences of our female associates.”  In the event the case does proceed to trial, the suit could be the largest employment discrimination case to date. 

Additional stories on the case here and here.

The plaintiff, Deborah Merritt, had been employed by Old Dominion as a Line Haul truck driver.  After some time, Merritt expressed interest in a Pickup and Delivery driver position where she would have a more regular work schedule.  Merritt satisfactorily performed the duties of the Pickup and Delivery position in May 2002 when she filled in for other Pickup and Delivery drivers.  When a position opened up in the Lynchburg, Virginia terminal, Merritt expressed interest in the position to the terminal manager, who told Merritt that he lacked hiring authority.  Nevertheless, the manager later hired a male driver for the position who had less experience than Merritt.  The following year, Merritt again expressed interest in a Pickup and Delivery position when another position became available in Lynchburg.  The manager nevertheless hired a male driver for the position.  When Merritt confronted the manager about why she had not been hired, she was told that a woman could not have that position. 

In 2004, Merritt was finally offered a Pickup and Delivery driver position in Lynchburg subject to a ninety-day probationary period.  For about seven months, Merritt satisfactorily performed the duties of the position, never receiving any complaints from supervisors or customers.  Near the end of September 2004, Merritt injured her ankle on the job.  Merritt was subsequently placed on light duty by her doctor for approximately three months.  Near the end of the three-month period, Brian Stoddard, Vice President of Safety and Personnel for Old Dominion, scheduled Merritt for a fitness test to determine if she was physically able to perform her job duties.  The test was used by the company primarily as part of the pre-employment screening process.  The day after being released by her doctor to return to work, Merritt took the company’s fitness test.  Merritt had trouble with several components of the test, none of which were related to her injury according to Merritt.  Merritt received a failing grade for the test.  Stoddard then terminated Merritt’s employment for “inability to perform job.”  Merritt was then replaced with male drivers.

After her termination, Merritt brought a Title VII sex discrimination suit against Old Dominion, alleging that she was terminated because of the company’s “discriminatory belief that women were incapable of performing the duties of her position.”  Old Dominion countered that Merritt had been terminated after failing the physical ability test.  The district court granted Old Dominion’s motion for summary judgment, finding that Merritt had failed to raise a triable issue of fact with respect to pretext because she had failed to provide any evidence that Stoddard harbored discriminatory animus. 

On appeal, the Fourth Circuit reversed the lower court’s grant of summary judgment, finding that Merritt had put forth sufficient evidence that Old Dominion’s proffered reason for her termination was false.  First, the court found that at the time of her termination, Merritt’s ankle injury had healed.  Second, the court stated that the test used by Old Dominion was a “general, full-body physical fitness test that not designed to test any body part in particular,” and that the parts of the test Merritt had trouble with were unrelated to her injury.  As a result, the court found that there was sufficient evidence from which a jury could conclude that the test was merely a pretext for discrimination.

Next, the court found that Merritt had also produced sufficient evidence of discriminatory intent by showing that Stoddard and Old Dominion had employed the test selectively.  Old Dominion argued that its termination decision was made “pursuant to a uniform and neutrally administered company policy.”  The company alleged that the test was required whenever an injured employee received a conditional release from his or her doctor.  The court found, however, that although the policy was gender-neutral on its face, there was evidence that in practice the policy was not uniformly implemented, or did not exist at all.  The court found significant the fact that employees were not aware of the policy, that the policy was not written down, and that the policy argument was brought up late in the course of litigation. Further, the court pointed out that Stoddard’s decision to give Merritt the test was made before she received a “trial basis” release from her doctor. 

The court went on to say that Merritt had produced sufficient evidence that Stoddard harbored discriminatory intent based on his decision to require Merritt to take the test but not requiring the same of similarly situated male employees.  The court pointed out that while a company is certainly free to employ a testing method to ensure that its employees are capable of performing their job duties, here Merritt had been performing her duties satisfactorily for months before she was injured.  The court explained that its holding was “not about infusing fear and trembling into a company’s every employment decision,” but that the evidence in this case, when looked at as a whole, precluded summary judgment for Old Dominion.  The court emphasized that although McDonnell Douglas is a useful framework for discrimination cases, the ultimate focus should always remain on whether the plaintiff was subject to intentional discrimination.

Contributed by Claudia L. Guzman

In Bess v. Hecker, 08-2184, a federal court jury in Trenton, N.J., found that Laurence Hecker of Toms River, N.J., and APM Financial Services, the debt-collection servicing company he represented in collection issues, were dual employers and therefore jointly liable for discriminating against a black employee, Steven Bess.

In proving that Hecker maintained the requisite control over plaintiff to establish that he was an employer, the fact that the company presented itself to the public as “The Law Office of Laurence Hecker” was heavily relied upon.  “The Law Office of Laurence Hecker” was on the outside of the building; Hecker had an office inside APM; and APM paid all rent and utilities associated with the maintenance of Hecker’s law office.  In addition, employees considered the attorney to be an employer.  Plaintiff’s evidence suggested that all the debt-collection work at APM was actually performed on Hecker’s behalf and that the employees considered themselves working for him as an employer.

Hecker argued that he didn’t even belong in the case.  There was no evidence Hecker had a role in any workplace bias, and he gave un-rebutted testimony that he never even had a conversation with Bess.  The alleged bias was perpetrated by an APM supervisor.  His only supervisory role was to ensure that agents comply with the Federal Debt Collection Practices Act and he had no authority to hire workers and was “not sure” if he had authority to fire employees because he had never done so.

But it was clear that the work space and phone number were the same for both Hecker and APM, although Hecker claimed that he had an office at APM only because he figured that if he had to travel to the company it should provide him with space to work.  Further, Hecker and the company had the same telephone number.  When the joint employer questions was brought to the jury, it was determined that Hecker was a dual-employer.  The jury found Hecker and the company liable for $95,000 in compensatory damages and added $600,000 in punitives in the March 15 verdict. 

This case shows that a jury can and will judge a book by its cover.  While the company took full responsibility for employee relations, Hecker could not overcome the fact that APM presented itself to the public to under his name and was intertwined with the agency’s operations on a day-to-day basis.  It is tough to convince anyone, whether judge or layman, that an entity has no control over the employment relations of an individual when your name is on the door and you are in the office on a day-to-day basis to oversee operations.  Even if an entity is not responsible for employee relations on paper, when there is absolutely no separation between the operations of both entities in other aspects of business operations it is tough to argue that there is separation in the employment context only.

Law.com has the story here.

Contributed by Michael Wilson Stoker

John Harrison began working for Benchmark Electronics (“Benchmark”) as a temporary employee in 2005.  A few months later, Harrison applied for a permanent position with the company and consented to a background check and drug test as part of the pre-employment inquiry.  After Harrison’s drug test turned out positive for barbiturates, his supervisor, Don Anthony, approached him about it.  Harrison informed Anthony that he had a prescription for the medication, and Anthony proceeded to call the Medical Review Officer (“MRO”) in charge of reviewing Harrison’s drug test.  The MRO asked Harrison some questions over the telephone regarding the medication.  With Anthony present in the room, Harrison told the MRO that the medication was for his epilepsy, a condition he had since he was a child.  After the MRO cleared Harrison’s drug test and the company’s human resources department gave Anthony the go-ahead to hire Harrison, Anthony told human resources not to extend Harrison an offer.  He then informed the temporary agency not to return Harrison to Benchmark, citing performance and attitude problems.  The agency then fired Harrison.

Harrison proceeded to sue Benchmark under the ADA, alleging improper medical inquiry and discrimination due to a perceived disability.  The district court granted summary judgment for Benchmark on all claims.  Harrison appealed only the medical inquiry claim.  The Court of Appeals first examined whether a non-disabled employee could state a private cause of action for a medical inquiry claim, an issue of first impression in the Eleventh Circuit.  The ADA prohibits employers from “conduct[ing] a medical examination or mak[ing] inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.”  Applying principles of statutory construction, the court reasoned that the statute at issue does not limit coverage to job applicants who are also disabled within the meaning of the ADA.  The court stated that under the ADA, employers may ask follow-up questions after a positive drug test result to determine whether the medications taken are legally prescribed, so long as the questions do not relate to disability.  Citing EEOC guidance, the court stated that questions that “are likely to elicit information about a disability” are prohibited as part of the pre-employment offer inquiry.  The court found that there was a genuine issue of material fact as to whether the supervisor’s presence in the room during the MRO’s conversation with Harrison constituted “an intentional attempt likely to elicit information about a disability,” and so reversed the grant of summary judgment in favor of Benchmark.

Business-to-business sex harassment?  In New Jersey, apparently yes.  Article here.

Black-on-black lawsuit for “acting white”?   In South Carolina, apparently yes.  Post here.

Does sex-specific profanity not targeted at an employee give that person an actionable harassment claim?  In the 11th Circuit, yes.  Law.com article here.  Blog posts here and here.

Receptionist who lacked the “Midwestern girl look” and was not “pretty enough” has case sent back for trial by the 8th Circuit.  Blog post here.

In Gross v. FBL Financial Services, Inc., the Supreme Court held that the mixed motive standard used to prove intentional discrimination in Title VII claims does not apply to claims brought under the ADEA.  In that case, the employee sued his employer, claiming that he was demoted due to his age in violation of the ADEA.  The trial court held that the employee had to prove by a preponderance of the evidence that age was “a motivating factor” in the employment action.  On appeal, the Eight Circuit reversed, and the Supreme Court affirmed.  Because the ADEA provides that it is unlawful to make certain employment decisions “because of” an individual’s age, the Court held that “[a] plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.”  The Court instructed that the burden of persuasion never shifts to the employer to show that it would have made the same decision regardless of age, even in the face of evidence that age was a motivating factor in the decision.  The Court found it significant that unlike Title VII, the ADEA has never been amended to provide that a plaintiff may prevail by showing that age was a motivating factor in the challenged employment decision.

The practical effect of this decision is that it will now be more difficult for age discrimination plaintiffs to withstand a pre-trial motion for summary judgment by the employer.  For their part, employers should take care to document all disciplinary actions carefully and accurately and maintain complete personnel files on every employee.

Age discrimination claims will not disappear, however.  Applying Gross, in November 2009, a federal jury in Pennsylvania awarded over $6.2 million to two former employees who claimed they were laid-off because of their age.  The jury found that the company had engaged in “willful” discrimination, which automatically doubled each employee’s back pay award.

The EEOC’s congressional 2010 budget justification document highlights the agency’s priorities for the upcoming year:

C. Chair’s Priorities

Since the establishment of the EEOC in 1965, much progress has been made in reducing illegal discrimination in the American workplace. Yet discrimination continues to be a substantial problem for too many people in America. Significant work remains to be done.

A key for the EEOC to be successful is a strong law enforcement and litigation program. Concrete steps will be taken to restore capacity to effectively investigate charges and litigate cases. While past EEOC focus has primarily been on individual cases of discrimination, the agency has stated its bipartisan desire to shift emphasis to combating systemic discrimination. A strong systemic program is crucial to battling unlawful patterns or practices of discrimination which have a broad impact on an industry, profession, company, or geographic location.

Recently enacted legislation will improve the EEOC’s law enforcement capability. The Lilly Ledbetter Fair Pay Act of 2009 restores the long standing EEOC position that discriminatory compensation decisions or other unlawful practices occur each time compensation is paid. We expect more charges to be filed as a result of this Act. The Americans with Disabilities Act (ADA) Amendments Act of 2008 restores congressional intent of the original ADA, and directs us to construe the term “disability” broadly. We will issue regulations interpreting the Act as well as conduct outreach activities to educate the public. We anticipate that in fiscal year 2010, more than 5,000 charges will be filed which will result in a significant increase to our workload.

In addition, we will address the Genetic Information Non-Discrimination Act (GINA) of 2008, which prohibits public and private employers from using genetic information in making employment decisions. The Commission will provide training programs and technical advice and assistance regarding GINA and its implementing regulations that we will issue in 2009.

Finally, the EEOC will utilize outreach efforts with stakeholder organizations on particular workplace issues or topics in the race context. Additionally, through our enforcement and litigation efforts, we will pursue charges for priority, novel or emerging legal issues in the context of race discrimination.

We have highlighted in bold several areas of focus that we find significant, in part because they are not defined.  For example, what “novel or emerging legal issues in the context of race discrimination” will the EEOC be focusing on?

Tiffanye Wesley had been a firefighter with the Arlington County Fire Department since 1994.  She applied for the position of Captain but was not promoted even though she had met all of the eligibility requirements and passed the written test.  In her suit against the county, she alleged that she had been discriminated against on the basis of her race and gender.  The district granted the county’s motion for summary judgment, stating that Wesley had not established a prima facie case of discrimination because she had not shown that she was qualified for the position. 

On appeal to the Fourth Circuit, the court found that Wesley had produced sufficient evidence that she was objectively qualified for the promotion.  The court pointed out that Wesley had passed the written test for the promotion on two different occasions, and she had been rated as “more than qualified” by the department.  The county argued that there were several other qualifications that Wesley had to have in order to be “qualified” for purposes of establishing her prima facie case.  The court disagreed and found that Wesley had met the minimum objective criteria for eligibility, and that the other qualifications argued by the county were at least partially duplicative of the requirements for taking the written test.  The court went on to state that Wesley “need not establish that she was the most qualified person for the position, only that she met the job requirements and thus was qualified for the position of Captain.” 

The court further concluded that Wesley had raised genuine issues of fact about whether the department’s reasons for failing to promote her were pretextual.  The court stated that the fact that the department cited certain “marginally relevant” qualifications as being very important while disregarding other seemingly more relevant ones, specifically all of the qualifications that Wesley possessed, raised a genuine question of fact as to what criteria actually went into play in making the promotion decision.  The court held that a reasonable jury could find that the department’s proffered reasons were mere pretext for discrimination.

In a separate dissent, former Chief Judge Wilkinson disagreed, noting that “[b]ecause the record in this case provides no reasonable basis to infer that the Department’s reasons for not promoting Wesley were false, much less that the actual reason was race or sex, her claims must fail.”

The case arose from the termination and failed prosecution of the employee for an alleged theft of laptop computers at the defendant’s terminal.  The employee’s version of the facts can be read in his brief opposing the employer’s pretrial motion for summary judgment (which was denied).  The employee does present a rather compelling story of a rush to judgment by the employer and a “keystone cops” investigation — apparently the jury found it compelling as well.

Here are the verdict forms:  liability, compensatory damages, punitive damages.

It will be interesting to see whether the verdict holds up after post-trial motions by the employer or whether the case will now settle.

UPDATE:  A settlement conference has been scheduled for January 8.  Story here.

The plaintiff, Dean Inman, was fired from his job as Vice President of Technology at Klockner Pentaplast of America, Inc. (“KPA”), where he had worked for 17 years.  At the time of his termination, Inman was 58 years old.  Two years before his termination, Inman had received some less than favorable performance evaluations from his supervisor.  The supervisor had also requested Inman to create a development plan for his department, which Inman had refused to do.  According to the supervisor, in the months leading up to his termination, Inman had exhibited “unprofessional” conduct, including expressing displeasure to the human resources department about having to attend a mandatory training session and having to sign a non-compete agreement that everyone in his department was required to sign.  The supervisor also alleged that Inman had complained to a co-worker about the company’s decision to enact a salary freeze and then lied to the supervisor and said that he was in favor of the decision.

During the termination meeting, the supervisor allegedly told Inman that KPA need a “more energetic person” for such a leadership position, and that Inman “did not fit the ‘profile’ or ‘model’ ” of what was needed “for the appearance of a revitalized company.”  Inman was replaced by the former Vice President of Operations, who was 45 years old.

Inman filed a lawsuit against KPA in federal district court alleging age discrimination, among other things.  The district court granted KPA’s motion for summary judgment on the age discrimination claim.  On appeal, the Fourth Circuit addressed two issues:  whether Inman was meeting KPA’s legitimate expectations under the third prong of the prima facie case of age discrimination, and whether Inman had presented sufficient evidence of pretext. 

KPA argued that Inman’s failure to create the development plan for his department, his refusal to support the salary freeze, and his unprofessional behavior towards the human resources department supported the conclusion that there was no genuine issue of material fact as to whether Inman had been meeting KPA’s legitimate expectations.  The court disagreed, stating that the fact that Inman had received bonuses every year, and had been praised by his supervisor just a few weeks before his termination, was some evidence that Inman had been meeting KPA’s legitimate expectations. 

The court also found that Inman had presented evidence that, if accepted by the jury, would contradict KPA’s main reason for the termination – that Inman was fired because he lied about supporting the salary freeze.  The court found relevant to the pretext determination the comments that the supervisor had made at the termination meeting about Inman not meeting the “model” or “profile” of the “energetic person” that KPA needed.  The court also pointed to some notes that the supervisor had made during a meeting with an outside consultant hired to review KPA’s operations.  During the meeting, the consultant suggested that KPA form a task force that consisted of “young, energetic, future people.”  The supervisor wrote down notes on a napkin during the meeting, including the phrase “young, energ[etic].”  KPA argued that the notes were merely what the consultant was saying, and that the consultant was not the decisionmaker with regards to Inman’s employment.  The court rejected that argument, stating that even though the consultant was not the decisionmaker, the supervisor was, and the supervisor had found the consultant’s reference to “young employees” significant enough to write it down.  The court held that it was up to the jury to determine what meaning the supervisor attached to those words and whether he adopted the consultant’s suggestions.

Read more about this case on VLW.

UPDATE:  The New York Times has a story here.