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ALI-ABA Course oI Study

Current Developments in Employment Law:


The Obama Years at Mid-Term
July 28 - 30, 2011
Santa Fe, New Mexico
Cutting Edge Employment Law Issues
By
Robert B. Fitzpatrick
Robert B. Fitzpatrick, PLLC
Washington, D.C.
2011 Robert B. Fitzpatrcik, PLLC.
All Rights Reserved.
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TABLE OF CONTENTS

DEFINITION OF EMPLOYEE UNDER ANTI-DISCRIMINATION LAWS ...........................4


DISABILITY DISCRIMINATION..................................................................................2
GENDER DISCRIMINATION......................................................................................4
RELIGIOUS DISCRIMINATION...................................................................................5
FAMILY AND MEDICAL LEAVE ...............................................................................6
BANKRUPTCY DISCRIMINATION .............................................................................6
RETALIATION.........................................................................................................7
ADVERSE EMPLOYMENT ACTIONS.........................................................................9
NON-COMPETE AGREEMENTS AND TRADE SECRETS .......................................... 10
WARN ACT ......................................................................................................... 11
WAGE AND HOUR............................................................................................... 12
NLRB CASES ....................................................................................................... 15
SOCIAL MEDIA.................................................................................................... 16
CLASS AND COLLECTIVE ACTIONS .................................................................... 16
FOREIGN CORRUPT PRACTICES ACT................................................................... 19
ATTORNEYS FEES .............................................................................................. 19
CHOICE OF LAW / FORUM.................................................................................. 20
DISPARAGEMENT / DEFAMATION....................................................................... 23
CONFIDENTIALITY............................................................................................... 27
DISCOVERY......................................................................................................... 28
RICO ................................................................................................................... 31
PROCEDURE ........................................................................................................ 32
PLEADING........................................................................................................... 34
EVIDENCE / PROOF............................................................................................. 36
COMPUTER FRAUD AND ABUSE ACT.................................................................. 37
USERRA .............................................................................................................. 37
COMMUNICATIONS DECENCY ACT...................................................................... 38
PRIVACY ACT ..................................................................................................... 38
IIED..................................................................................................................... 39
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LOSS OF CONSORTIUM....................................................................................... 39
DUE PROCESS ..................................................................................................... 39
ARBITRATION ..................................................................................................... 40
CRIMINAL BACKGROUND CHECKS....................................................................... 42
EMPLOYEE SAFETY............................................................................................. 42

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Cut t ing Edge Employment Law Issues

by Robert B. Fitzpatrick

DEFINITION OF EMPLOYEE UNDER ANTI-DISCRIMINATION LAWS

Third Circuit Finds Law Firm Shareholder Not Employee Under Federal
and St at e Ant i-Discriminat ion Laws:

In Kirleis v. Dickie, McCamey & Chilcote, P.C., 2010 U.S. App. LEXIS 14530 ( 3d
Cir. J uly 15, 2010) , J udge J ane Roth, writing for a panel of the Third Circuit,
held that the plaintiff, a Class A Shareholder-Director of Pittsburgh-based law
firm DMC, was an employernot an employeeunder Title VII, the Equal Pay
Act, and the Pennsylvania Human Rights Act; and thus she was outside the
protection of the employment discrimination laws.
In so holding, the court examined the plaintiffs shareholder-director status in
light of Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440
( 2003) . In Clackamas, the Court adopted the following six-factor test, to
determine whether one is an employer or an employee entitled to invoke the
antidiscrimination laws:

1. Whether the organization can hire or fire the individual or set the rules and
regulations of the individuals work;
2. Whether and, if so, to what extent the organization supervises the
individuals work;
3. Whether the individual reports to someone higher in the organization;
4. Whether and, if so, to what extent the individual is able to influence the
organization;
5. Whether the parties intended that the individual be an employee, as
expressed in written agreements or contracts; and
6. Whether the individual shares in the profits, losses, and liabilities of the
organization.

Id. at 449-50 ( quoting 2 Equal Employment Opportunity Commission
Compliance Manual 605.0009 ( 2000) ) . The Clackamas Court noted
further that the touchstone of the inquiry is control, which depends on
all of the incidents of the relationship . . . with no one factor being
decisive. Id. at 449, 451 ( quoting Nationwide Mut. Ins. Co. v. Darden,
503 U.S. 318, 324 ( 1992) ) .

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In applying the above factors, in Kirleis, the court found that the plaintiff
was not a mere employee of DMC, but rather an employer, as she has
the ability to participate in DMCs governance, the right not to be
terminated without a 3/4 vote of the Board of Directors for cause, and
the entitlement to a percentage of DMCs profits, losses, and liabilities.
Kirleis, 2010 U.S. App. LEXIS, at *4 ( citing Solon v. Kaplan, 398 F.3d 629,
633 ( 7th Cir. 2005) ( termination only by 2/3 vote of general partners,
access to financial information, participation in firm governance, and a
share in profits and losses distinguished a law firm partner from
associates and rendered him an employer) ; Schmidt v. Ottawa Med. Ctr.,
P.C., 322 F.3d 461, 467-68 ( 7th Cir. 2003) ( a shareholder in a
professional corporation who possesses the right to vote on matters put
before the board and the opportunity to share in profits is an employer
for the purposes of the anti-discrimination laws) .

Tip of the hat to the New J ersey Employment Law Blog and the Lawffice Space
blog for calling this decision to our attention.
DISABILITY DISCRIMINATION

ADA-Doct or s Not e:

The Sixth Circuit in Lee v. Columbus, Ohio, 636 F.3d 245 ( 6th Cir. Feb. 23,
2011) , held that the city did not violate the Rehabilitation Act by requiring
employees to give their supervisors a note from their doctor disclosing the
nature of their illness after they had used sick leave. The Sixth Circuits
decision differs from the Second Circuits decision v. Conroy v. N.Y. State
Department Correction Services, 333 F.3d 88 ( 2nd Cir. 2003) , where that
Court held that the employers general request for a diagnosis upon an
employees return from sick leave tended to reveal a disability and thus
constituted a prohibited disability-related inquiry under the ADA. The Sixth
Circuit distinguished Conroy in finding that, unlike the ADA, the Rehabilitation
Act expressly prohibits discrimination solely on the basis of disability.

ADA-Drug Testing:

In Lopez v. Pacific Maritime Association, 636 F.3d 1197 ( 9
th
Cir. Mar. 2, 2011) ,
a rehabilitated drug addict was denied employment as a longshoreman because
he had tested positive for marijuana use some seven years earlier during a pre-
employment drug screen with the same employer. The Court, in affirming
summary judgment, held that the provision of the collective bargaining
agreement which contained a one-strike rule did not violate the ADA. J udge
Graber, writing for J udge Ripple, sitting by designation from the 7th Circuit, and
herself, held that it was lawful for Defendant to eliminate applicants who were
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using drugs when they applied to be longshore workers [ and] was likewise
lawful for defendant to disqualify those applicants permanently. J udge
Pregerson partially dissented, stating that Plaintiff had put forward sufficient
evidence to establish a prima facie case of adverse impact on the protected
class.

ADA Regarded As Disabled:

In Miller v. Illinois Dept of Transport., 2011 U.S. App. LEXIS 9534 ( 7th
Cir. May 10, 2011) , the Seventh Circuit, J udge Hamilton writing for the
panel, held that a reasonable jury could conclude that the employer
regarded the plaintiff, a bridge worker, as disabled because of his fear of
heights. The Court held as follows:

After the March 23, 2006 panic attack above the Mississippi
River, Miller was formally diagnosed with acrophobia. IDOT
immediately precluded him from performing any task required
of the bridge crew, even tasks that could be performed from
the ground let alone from a secure, unexposed height. IDOT
forced him on nonoccupational disability leave and
exaggerated the relatively modest effects of the acrophobia.
Even after two psychiatrists cleared him for work without any
significant restrictions, IDOT continued to preclude Miller
from returning to any and all tasks performed by the bridge
crew. According to the record, those tasks included
everything from the maintenance and operation 14 of
vehicles and equipment to spreading salt and gravel,cutting
grass, and directing traffic. In other words, IDOT treated
Miller as though he was unable to perform awide range of
jobs. A reasonable jury could find from this evidence that
IDOT regarded Miller as disabled by his acrophobia under the
law before the 2008 amendments.

In Eaddy v. City of Bridgeport, 2011 U.S. Dist. LEXIS 39853 ( D. Conn.
Apr. 12, 2011) , a former probationary police officer claimed that her
employment was terminated for lack of fitness for duty, and claimed that
her employer regarded her as disabled because the police chief allegedly
described her behavior as irrational, irate, and uncooperative as well as
paranoid. The district court granted the citys motion for summary
judgment, using the old ADA standards, finding that plaintiff had to show
that her employer regarded her as having an impairment that would be
significantly limiting to the average person in the population. The court
found that the police chief did not use the terms irrational or paranoid
in a clinical sense, and found that a reasonable jury would not have found
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those statements to suggest that plaintiff suffered from paranoid
delusions in the psychiatric sense.

ADA Violated When Employer Responds to State Subpoena and
Discloses Former Employee s Medical Records:
In Bennett v. Potter, 2011 WL 244217 ( EEOC J an. 11, 2011) , the EEOC held
that the confidentiality of medical records requirement of the ADA is violated
when an employer discloses a current or former employees medical records in
response to a state court subpoena absent the employees release or some
other exception under the ADA.

Sixt h Circuit Panel Cont inues t o Reject Mot ivat ing Fact or Test for
Causat ion in ADA Cases:

In Lewis v. Humboldt Acquisition Corp., Inc., 2011 U.S. App. LEXIS 5313 ( 6th
Cir. Mar. 17, 2011) , a panel of the 6th Circuit again held, given that the panel
was powerless to overrule Circuit precedent, that the motivating factor ( or a
substantial cause) test did not apply in ADA cases. Rather, the panel adhered
to Circuit precedent ( Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178
( 6th Cir. 1993) ) that adopted the solely causation standard for ADA claims
from the Rehabilitation Act of 1973, which expressly requires sole causation.
See 29 U.S.C. 794( a) . Other than the 6th Circuit, only the 10th Circuit
adheres to the solely standard in ADA cases. See Fitzgerald v. Corr. Corp. of
Am., 403 F.3d 1134, 1144 ( 10th Cir. 2005) ; Williams v. Widnall, 79 F.3d 1003,
1005 ( 10th Cir. 1996) . All other Circuits that have addressed the issue have
adopted the motivating factor test. See, e.g., Pinkerton v. Spellings, 529
F.3d 513, 518-19 & n.30 ( 5th Cir. 2008) ( collecting cases) . While J udge
Merritt writing for the unanimous panel, did not expressly signal a belief that the
solely standard was erroneous and that the en banc 6th Circuit ought to
reverse that standard, J udge Griffin, concurring, made plain his opinion that the
solely test, was erroneous and should be set aside.

However, the Court recently agreed to rehear the Lewis case en banc, 2011
U.S. App. LEXIS 11941, and so it will be worthwhile to keep an eye on this case
for further developments.
GENDER DISCRIMINATION

Lilly Ledbet t er Fair Pay Act:

In Groesch v. Springfield, Illinois, 635 F.3d 1020 ( 7th Cir. Mar. 28, 2011) , the
Court held that the Ledbetter Act removed the Supreme Courts Ledbetter
decision as an obstacle to applying the paycheck accrual rule to discrimination
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claims in employee compensation, and held that the paycheck accrual rule
applies to pay discrimination claims under Section 1983.
RELIGIOUS DISCRIMINATION

3rd Circuit Affirms Workplace Head Scarf Ban:

On August 2nd, the Third Circuit, in EEOC v. GEO Group, Inc., 616 F.3d 265 ( 3rd
Cir. Aug. 2, 2010) ( available here) , held that a private contractor running a
Pennsylvania prison could ban khimars, head coverings worn by some of its
female Muslim employees.

According to the company, the ban on khimars, was necessitated by safety and
security concerns including the ability to smuggle items into the prison under
the khimar, the possibility that a khimar could be used to strangle the employee
wearing it, and the possibility of misidentification of the person wearing the
khimar.

The employees argued that GEOs stated reasons for banning the khimar were
meritless; GEO did not offer reasonable alternatives for accommodating khimar-
wearers; and that there is no legitimate safety concern due to employees
wearing khimars within the secure perimeter of the prison.

In affirming the district courts granting of summary judgment to the defendant
employer, the Third Circuit held that, even though the khimars presented only a
small safety risk, they did present a threat which is something that GEO is
entitled to attempt to prevent.

The dissent, by J udge A. Wallace Tashima ( visiting from the Ninth Circuit) ,
focuses on several areas of material fact that made summary judgment
inappropriate and argues that the majoritys legal analysis allows an employer to
engage in religious discrimination so long as it can come up with a post-hoc
safety rationale for its decision not to accommodate its employees religious
practices.

The issues of khimars in the workplace was also considered by the Seventh
Circuit in EEOC v. Kelly Services, Inc., 598 F.3d 1022 ( 8th Cir. Mar. 25, 2010)
( available here) . In that case, the EEOC filed suit against an employment agency
for failing to refer a khimar-wearing employee to an employer printing company
that had a policy banning loose fitting clothing because of safety concerns
involving the heavy, rotating equipment employees used at the job site. The
Seventh Circuit ruled in favor of the defendant holding that there was no
evidence of discrimination by the employment agency because the printing
companys policy was a valid, non-discriminatory reason for not referring the
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employee to that company.

The GEO Group court cited to the Kelly case when it discussed what exactly a
khimar is. " The EEOC never introduced a khimar into evidence. Although
khimars may come in different shapes and sizes we note the description
adopted by a sister circuit that stated ' A khimar is a traditional garment worn
by Muslim women that covers the forehead, sides of the head, neck shoulders,
chest and sometimes their waist,' EEOC v. Kelly Servs., 598 F.3d 1022, 1023
n.1 ( 8th Cir. 2010) ( quotation and citation omitted) , a description similar to
that provided in the EEOC' s complaint.

Although this case stands for the principle that safety concerns can outweigh
an employers duty to provide religious accommodations, tip of the hat to Philip
Miles at Lawffice Space for pointing out that since most workplaces are
significantly different than prisons, employers should not consider this a green
light to ban head scarves. Also, a tip of the hat to As Paul Mollica at Daily
Developments in EEO Law points for his post on this case.

Religious Discriminat ion Failure t o Accommodat e:

In Maroko v. Werner Enterprises, Inc., 2011 U.S. Dist. LEXIS 40865 ( D. Minn.
Apr. 14, 2011) , the District Court denied summary judgment where a Seventh
Day Adventist had lost his truck-driving job after his employer refused to
accommodate his Sabbath observances. The District judge found that whether
an employer offered a reasonable accommodation or faced undue hardship
ultimately boils down to whether the employer has acted reasonably, and these
questions cannot be answered as a matter of law at summary judgment.
FAMILY AND MEDICAL LEAVE


FMLA Burden of Proof On Reinst at ement:

In Sanders v. Newport, Oregon, 2011 U.S. App. LEXIS 5263 ( 9th Cir. Mar. 17,
2011) , the Court held that the employer carried the burden of proof to
establish that it had a legitimate reason to deny an employees reinstatement.
BANKRUPTCY DISCRIMINATION

Bankrupt cy Discriminat ion St at ut e:

In Myers v. TooJ ays Management Corp., 2011 U.S. App. LEXIS 9947 ( 11th Cir.
May 17, 2011) , the Court held that the provisions of the bankruptcy code
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relating to discrimination against job applicants who had previously filed for
personal bankruptcy only applied to government employers. Section 525( a)
provides that a government unit may not deny employment to, terminated
the employment of, or otherwise discriminate against a person who has filed for
bankruptcy; whereas Section 525( b) bars private employers from firing or
otherwise discriminating against an individual who has filed for bankruptcy.
Section 525( b) does not contain the phrase deny employment to that is
contained in Section 525( a) .

J ob Applicant Not Hired By Private Employer Because Bankruptcy Has
No Discrimination Claim Under the Bankruptcy Code:
Both the 3rd and 5th Circuits have held that the plain language of the
bankruptcy code ( 11 U.S.C. 525( b) ) , which applies to private employers, does
not prohibit the employer from denying employment because the job applicant
had filed for bankruptcy, contrasting that statutory language with 11 U.S.C.
525( a) , which applies to public employers and expressly prohibits such action.
See Rea v. Federated Investors, 627 F.3d 937 ( 3rd Cir. Dec. 15, 2010) ; In re
Burnett, 635 F.3d 169, 2011 WL 754152, at *2 ( 5th Cir. 2011) . See also
J ason Shinn, Can an Employer Reject a J ob Applicant Based on a Previous
Bankruptcy? , Michigan Employment Law Advisor ( Mar. 31, 2011) ,
http://www.michiganemploymentlawadvisor.com/employee-background-credit-
checks/can-a-company-reject-a-job-applicant-based-on-a-previous-bankruptcy/.
RETALIATION


Does Gross Apply t o Tit le VII Ret aliat ion Claims?

In Smith v. Xerox. Corp., 602 F.3d 320 ( 5th Cir. Mar. 24, 2010) , a divided panel
of the Fifth Circuit, J udge J olly dissenting, held that mixed-motive analysis still
applies in Title VII retaliation cases.

Ret aliat ion: Aggregat ion of Event s:

In J ohnson v. The Advertiser Co., 2011 US Dist LEXIS 33236 ( M.D. Ala. Mar. 28,
2011) , the court held that an employers actions against an employee may be
evaluated cumulatively, that is, the disciplinary letters in this case combined
with the PIP constitute adverse employment action independent and apart from
the termination of plaintiffs employment. The court, following Leatherwood v.
Annas Linens Co., 384 F. Appx. 853, 858 ( 11th Cir. 2010) ( holding that
multiple counseling notices coupled with negative evaluations and temporary
employment probation constitute adverse employment action) , found here that
the disciplinary letters and the initiation of the PIP, when viewed in the
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aggregate, crossed the threshold into adverse employment action that would
dissuade a reasonable employee from making or supporting a charge of
discrimination. See also Smith v. Vilsack, 2011 U.S. Dist LEXIS 60846 ( D. Md.
J une 2, 2011) ; Test v. Holder, 614 F. Supp. 2d 73, 84 ( D.D.C. 2009) ( based
upon the combined effect of alleged events, a reasonable worker could be
dissuaded from engaging in protected activity) ; Caldwell v. J ohnson, 2009 WL
2487850 at *10 n.13 ( M.D.N.C. Aug. 13, 2009) ( collecting cases) .

Ret aliat ion Because of Filing EEOC Charge: Does a New Charge Need
t o be Filed?

In Edlebeck v. Trondent Dev. Corp., 2011 U.S. Dist. LEXIS 24711 ( N.D. Il.
Mar. 8, 2011) , the court held that the complainants failure to include his
retaliation claim in his EEOC charge did not preclude him from pursuing
such a claim in federal court, and did not amount to a failure to pursue
administrative remedies in connection with that claim, because the
retaliation charge arose out of the events that occurred after he filed his
EEOC charge. The court noted:

" Generally, a Title VII plaintiff may bring only those claims
that were included in her EEOC charge . . . or that are like or
reasonably related to the allegations of the charge and
growing out of such allegations." McKenzie v. Illinois Dep' t of
Transp., 92 F.3d 473, 481 ( 7th Cir. 1996) ( internal
quotation marks omitted) . Where, however, a plaintiff alleges
that his employer retaliated against him after he filed his
EEOC charge, the plaintiff need not exhaust the retaliation
claim at the administrative level. Swearnigen-El v. Cook Cnty.
Sheriff' s Dep' t, 602 F.3d 852, 864 n.9 ( 7th Cir. 2010)
( citing Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 545
n.2 ( 7th Cir. 1988) ) .

In Noland v. Alburquerque, 2011 U.S. Dist. LEXIS 43974 ( D.N.M. Apr. 2,
2011) , the court held that each discrete incident must be exhausted,
that is, alleged retaliation following the filing of an EEOC charge must be
the subject of a new or amended charge. See Martinez v. Potter, 347
F.3d 1208, 1211 ( 10th Cir. 2003) ( Tenth Circuits decisions have
unambiguously recognized Morgan as rejecting application of the
continuing violation theory.)

Ret aliat ion Claim Against a Lawyer:

In Suchite v. Kleppin, 2011 U.S. Dist. LEXIS 48211 ( S.D. Fla. May 5, 2011) , the
court held that a lawyers conversation with a district judge and a dismissal
motion filed by the lawyer constituted adverse employment actions, but the
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court, finding that the plaintiffs failed to demonstrate pretext, granted
summary judgment. The lawyer, who had represented a defendant company in
an FLSA case filed by undocumented workers had suggested to the judge that
the plaintiffs be criminally investigated and had inquired about their immigration
status during depositions. While the court found the conversation with the
judge, suggesting that plaintiffs be referred for criminal investigation to be an
adverse action, the court found the deposition questions did not amount to an
adverse action.

Ret aliat ion Part icipat ion or Opposit ion:

In Perry v. Kappos, 2011 U.S. Dist. LEXIS 22285 ( E.D. Va. Mar. 2, 2011) , J udge
Cacheris holds that an informal, internal complaint of discrimination is protected
under the opposition prong of Section 704( a) of Title VII, and not protected as
participation activity under Title VIIs anti-retaliation provisions. Opposition
activity is protected only to the extent that the employee reasonably believes
that the employers actions are unlawful; whereas participation activity is
protected regardless of whether plaintiffs beliefs respecting discrimination are
reasonable. See also Bell v. Gonzales, 398 F. Supp. 2d 78, 94-95 ( D.D.C. 2005)
( court concluded that where a federal employee had initiated pre-complaint
contact with an EEO counselor, the employee is participating in a Title VII
proceeding) .


SOX Ret aliat ion:

In Tides v. Boeing Corp., 2011 U.S. App. LEXIS 8980 ( 9th Cir. May 3, 2011) ,
the Court concluded that the discharge of two Boeing employees after they had
provided a Seattle newspaper with allegations of fraud, were not entitled to
protections under SOX. J udge Silverman, writing for the panel, concluded that
the plain meaning of the statutory language [ 1514( A) ( a) ( 1) ] excludes the
expansive interpretation advanced by the plaintiffs, thus concluding that the
company was within its rights to terminate the plaintiffs for violating company
policy prohibiting unauthorized disclosures of Boeing information to the media.
ADVERSE EMPLOYMENT ACTIONS

Materially Adverse Rule:
In Goring v. Board of Supervisors of Louisiana State University and Agricultural
and Mechanical College, 2011 U.S. App. LEXIS 2352 ( 5
th
Cir. Feb. 4, 2011) , the
Fifth Circuit found that a reasonable employee would not have expected to be
insulated from review of her questionable job performance simply because she
had filed a prior complaint of discrimination.
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Must an Adverse Employment Action be tangible?
In EEOC v. Chrysler Group, LLC, 2011 U.S. Dist. LEXIS 16850 ( E.D. Wis. Feb. 17,
2011) , the district court, in denying the defense motion for summary judgment
to dismiss EEOCs retaliation claim, held that an adverse employment action
need not be tangible and held that a reasonable trier of fact could decide that
the charging parties suffered a materially adverse action based on the threat of
termination.
NON-COMPETE AGREEMENTS AND TRADE SECRETS

Third Circuit Preliminarily Enjoins Company Vice President from
Working For Compet it or Based on Concerns Regarding Disclosure of
Trade Secret s:
In Bimbo Bakeries USA, Inc. v. Botticella, 613 F.3d 102 ( 3rd Cir. J uly 27, 2010)
( copy available here) Bimbo Bakeries sued Chris Botticella, Bimbo' s former vice
president of operations, after Botticella accepted a job offer with Hostess, a
competitor. Bimbo sought to preliminarily enjoin Botticella under the
Pennsylvania Uniform Trade Secrets Act ( PUTSA) from starting work for
Hostess, on the grounds that there was a high likelihood that Botticella would
disclose Bimbo' s trade secrets to Hostess. The U.S. District Court for the
Eastern District of Pennsylvania ( J udge R. Barclay Surrick) granted the
preliminary injunction, and on appeal, a panel of the Third Circuit ( J udges Smith,
Fisher, and Greenberg) affirmed.

The Third Circuit' s opinion was based in part on the holding that Botticella' s new
employment would likely result in the disclosure of Bimbo' s trade secrets.
Under the PUTSA, the relevant consideration in determining whether to grant
such an injunction is whether there is a sufficient likelihood or substantial threat
of disclosure of trade secrets. The Court held that there were sufficient facts
for the District Court to have found that this standard was met. For example,
during the time period between when Botticella accepted Hostess' job offer and
when he ceased working for Bimbo, he continued to have executive-level access
to Bimbo' s confidential and proprietary information, and in fact accessed a
number of highly sensitive files during his final days at Bimbo.

Mr. Botticella attempted unsuccessfully to argue that Bimbo had to meet a
higher standard of proof in order to be entitled to such an injunction. In
particular, rather than only having to show a sufficient likelihood or substantial
threat of disclosure of trade secrets, Botticella argued that Bimbo should have
to show that disclosure of trade secrets would be inevitable - i.e., that it would
be " virtually impossible" for him to do his job for Hostess without disclosing
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Bimbo' s trade secrets. The Third Circuit rejected this argument and held that
the " sufficient likelihood or substantial threat" test was the proper standard
under the PUTSA.

The Court further rejected Botticella' s attempt to distinguish between the
disclosure of technical vs. non-technical trade secrets, and held that trade
secrets do not have to be technical in nature in order to be covered by the
PUTSA.

A tip of the hat to the following authors & firms for their insightful articles on
this case:
Morgan Lewis, Third Circuit Clarifies Availability of Preliminary Injunction to
Prevent Former Employee from Working for a Competitor, Labor and
Employment Lawflash, J uly 30, 2010 ( available here) .
Andy Arnold, A Bimbo By Any Other Name: Third Circuit Upholds
" Inevitable Disclosure" Injunction, Beat Your Non-Compete Blog, August 2,
2010 ( available here) .
J ames McNairy, Bimbo Bakeries v. Boticella: Man vs. Muffin, Muffin Wins
Injunction, Trading Secrets Blog, August 3, 2010 ( available here) .
WARN ACT

WARN Act Replacement Workers:

In Sanders v. Kohler Co., 2011 U.S. App. LEXIS 11562 ( 8th Cir. J une 8, 2011) ,
the Court held that the discharge of temporary workers hired to replace striking
workers did not constitute a mass layoff as the 123 discharged temporary
workers were replaced by 103 original striking employees who were reinstated
under a settlement agreement. The Court reasoned that discharged employees
who are replaced cannot be considered to be a part of a RIF and therefore
ought not be counted as part of the aggregate number of employee layoffs
that must be met to satisfy the numerosity thresholds of the WARN Act. The
Court counted the RIF as being only 20 employees and that that number did not
trigger the WARN Acts notice requirement.

WARN Act Right t o J ury Trial:

In Bledsoe v. Emery Worldwide Airlines, Inc., 635 F.3d 836 ( 6th Cir. Feb. 16,
2011) , the Court held that because the WARN Act provides equitable
restitutionary relief, rather than damages, Plaintiffs did not have a constitutional
right to jury trial.
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WAGE AND HOUR

Assistant Store Managers Found to Be Exempt Under the FLSA:
In Re Dollar General Stores FLSA Litigation v. Dolgencorp, Inc., 2011 U.S. Dist. LEXIS
5048 (E.D. N.C. J an. 19, 2011, the Court granted summary judgment to the
employer, holding that the lead plaintiffs, assistant store managers, in this
consolidated multi-district litigation were properly classified as exempt.
FLSA Collective Action on Behalf of Assistant Managers Rejected:
In Aquilino v. Home Depot USA, Inc., 2011 U.S. Dist. LEXIS 15759 (D.N.J . Feb. 15,
2011), the Court decertified a conditional collective action of assistant store
managers after finding that the plaintiffs failed to meet their burden of establishing
that they were similarly situated to some 1,500 opt-ins who had joined the
litigation.
Sealing of FLSA Settlement Agreements

Several courts have rejected proposed FLSA settlement agreements containing
confidentiality provisions, on the grounds that such provisions conflict with the
remedial purposes behind the FLSA. For example, in a recent opinion for the Middle
District of Florida, the Court reasoned that:

[ A] confidentiality provision [ in an FLSA settlement] furthers
resolution of no bona fide dispute between the parties; rather,
compelled silence unreasonably frustrates implementation of the
"private--public" rights granted by the FLSA and thwarts Congress's
intent to ensure widespread compliance with the statute By
including a confidentiality provision, the employer thwarts the
informational objective of the notice requirement by silencing the
employee who has vindicated a disputed FLSA right.

Furthermore, Section 15(a)(3) of the FLSA proscribes an employer's
retaliating against an employee for asserting rights under the FLSA. If
an employee covered by a confidentiality agreement discusses the
FLSA with fellow employees or otherwise asserts FLSA rights, the
employer might sue the employee for breach of contract. The
employer's most proximate damages from the employee's breach are
the unpaid FLSA wages due other employees who learned of their
FLSA rights from the employee who breached the confidentiality
agreement. A confidentiality agreement, if enforced, (1) empowers an
employer to retaliate against an employee for exercising FLSA rights,
(2) effects a judicial confiscation of the employee's right to be free
from retaliation for asserting FLSA rights, and (3) transfers to the
wronged employee a duty to pay his fellow employees for the FLSA
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wages unlawfully withheld by the employer. This unseemly prospect
vividly displays the inherent impropriety of a confidentiality agreement
in settlement of an FLSA dispute.

A confidentiality provision in an FLSA settlement agreement both
contravenes the legislative purpose of the FLSA and undermines the
Department of Labor's regulatory effort to notify employees of their
FLSA rights The district court should reject as unreasonable a
compromise that contains a confidentiality provision, which is
unenforceable and operates in contravention of the FLSA.

Dees v. Hydradry, Inc., 706 F. Supp. 2d 1227, 1242-43 (M.D. Fla. 2010) (internal
footnotes omitted). See also Moreno v. Regions Bank, 729 F. Supp. 2d 1346 (M.D.
Fla. 2010) (denying as unreasonable a proposed FLSA settlement as unfair,
because it contained a pervasive release of claims with unbounded scope).

Similarly, J udge Moon, writing for the Western District of Virginia in refusing to
approve an FLSA settlement with a confidentiality provision, in a case in which
J udge Moon had also denied a motion to seal the settlement agreement, recently
held that:

The Court cannot approve these [ confidentiality] terms of the
Settlement Agreement. The provision that "confidentiality is a material
term of [ the] Agreement" is in conflict with the Court's [ past]
opinions which held that the parties had not identified significant
interests to outweigh the public interest in access to judicial records,
and required the proposed Settlement Agreement be made publicly
available on the docket. Furthermore, a confidentiality provision in an
FLSA settlement agreement undermines the purposes of the Act, for
the same reasons that compelled the Court to deny the parties'
motion to seal their Settlement Agreement. See e.g., Valdez v.
T.A.S.O. Prop., Inc., No. 8:09-cv-2250, 2010 U.S. Dist. LEXIS 47952,
2010 WL 1730700, at *1 (M.D. Fla. Apr. 28, 2010); Dees v.
Hydradry, Inc., F.Supp.2d, 2010 U.S. Dist. LEXIS 40900, 2010 WL
1539813, at *9 (M.D. Fla. 2010) ("A confidentiality provision in an
FLSA settlement agreement both contravenes the legislative purpose
of the FLSA and undermines the Department of Labor's regulatory
effort to notify employees of their FLSA rights.") The Court cannot
approve of a settlement agreement which includes these terms.

Poulin v. Gen. Dynamics Shared Res., Inc., 2010 U.S. Dist. LEXIS 47511 at *5-*7
(W.D. Va. 2010). See also Glass v. Krishna Krupa, LLC, 2010 U.S. Dist. LEXIS
110139 at *2-*4 (S.D. Ala. 2010) (citing Dees in rejecting an FLSA settlement
agreement as unreasonable because it contained a confidentiality provision); Scott
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v. Memory Co., LLC, 2010 U.S. Dist. LEXIS 119832 (D. Ala. 2010) (striking
confidentiality provision from FLSA settlement agreement).

Courts have rejected parties motions to seal FLSA settlements, on the grounds
that to do so would, like a confidentiality provision in such agreements, violate the
statutory purposes of the FLSA. For example, in denying a joint motion to seal an
FLSA settlement, J udge Morgan of the Eastern District of Virginia recently noted
that:

As this Court previously held in Boone v. City of Suffolk, Va., the
common law right of access to judicial records and documents is
implicated in a motion to file an FLSA settlement agreement under
seal. See 79 F. Supp. 2d at 608 ("This right of access has been
grounded in the democratic process itself and in a 'citizen's desire to
keep a watchful eye on the workings of public agencies.'") (quoting
Nixon v. Warner Comm'n, Inc., 435 U.S. 589, 598, 98 S. Ct. 1306, 55
L. Ed. 2d 570 (1978)). It is undisputed that an FLSA settlement
agreement, submitted to a court for judicial approval, is a judicial
record that triggers the common law right of public access. Put simply,
the public has an interest in determining whether the Court is properly
fulfilling its duties when it approves an FLSA settlement agreement.
Boone, 79 F. Supp. 2d at 609; see also Bank of Am. Nat'l Trust & Sav.
Ass'n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986)
(recognizing that a "court's approval of a settlement or action on a
motion are matters which the public has a right to know about and
evaluate"); Stalnaker v. Novar Corp., 293 F. Supp. 2d 1260, 1263
(M.D. Ala. 2003) ("Absent some compelling reason, the sealing from
public scrutiny of FLSA agreements between employees and
employers would thwart the public's independent interest in assuring
that employees' wages are fair and thus do not endanger 'the national
health and well-being.'") (quoting Brooklyn Sav. Bank v. O'Neil, 324
U.S. 697, 706-07, 65 S. Ct. 895, 89 L. Ed. 1296 (1945)).

Baker v. Dolgencorp, Inc., 2011 U.S. Dist. LEXIS 5208 at *6-*7 (E.D. Va. 2011).
See also J oo v. Kitchen Table, Inc., 2011 U.S. Dist. LEXIS 12723 (S.D.N.Y. 2011) (in
denying a joint request to approve a settlement without prejudice, holding that an
FLSA settlement agreement cannot be sealed absent some showing that
overcomes the presumption of public access, and inviting the parties to negotiate a
settlement agreement that did not require sealing the agreement); McCaffrey v.
Mortgage Sources, Corp., 2010 U.S. Dist. LEXIS 109508 (D. Kan 2010) (denying
motion to file FLSA settlement under seal).

USDOL s Wage and Hour Division Announces a Proposed New Notice
Rule, Which Would Require Employers To Conduct a Written
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Classification Analysis for Each Exempt Employee, to Provide the
Analysis to the Employee, and to Retain a Copy on File So That it Can
Be Provided to the WHD in the Event of An Investigation:
The proposed Rule would further require the preparation and retention of the same
records for any individual the employer classifies as an independent contractor.
The Proposed Rule can be accessed here:
http://www.dol.gov/whd/regs/unifiedagenda/fall2010/1235-AA04.htm.

NLRB CASES

Complaint Regarding Dress Code Found to be Protected Activity by
NLRB:
In Wyndham Resort Development Corp., 356 N.L.R.B. No. 104 (2011), the Board
Found that an employee had engaged in protected, concerted activity, when he
questioned his supervisor in front of his coworkers, about a new dress code.
NLRB General Counsel Memorandum Addressing Back Pay Mitigation and
Calculation:
The NLRBs office of general counsel issued memoranda involving procedures for
calculating back pay that include daily compounded interest, search-for-work and
interim work-related expenses, and reimbursement for excess taxes owed.
See NLRB General Counsel Issues Memorandums Targeting Backpay Mitigation and
Calculation, Littler Labor Management Relations Group (Mar. 14, 2011),
http://www.laborrelationscounsel.com/unfair-labor-practices/nlrb-general-counsel-
issues-memorandums-targeting-backpay-mitigation-and-calculation/.
The NLRBs memorandum can be accessed here:
http://mynlrb.nlrb.gov/link/document.aspx/09031d458045d136.

NLRB Holds Employee s Secret Recording of a Meeting is Protected
Activity:
In Stephens Media, LLC d/b/a Hawaii Tribute-Herald, 356 N.L.R.B. No. 63, the
Board held that an employees recording of a meeting with management after
having first been disallowed bringing a coworker into a meeting as a witness,
was protected activity under the NLRA. The Board did not indicate whether its
analysis might change if such a case arose in a state that prohibited the secret
audio recording of private conversations without the consent of the parties.
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SOCIAL MEDIA

Employer May be Liable for Impersonating Employee on Facebook and
Twitter:
In Maremount v. Susan Friedman Design Group, Ltd., 2011 U.S. Dist. LEXIS
26441 ( N.D. Ill. Mar. 15, 2011) , an employer that allegedly posted to an
employees Facebook and Twitter accounts without her consent may be liable
for false association / false endorsement under the Lanham Act, 15 U.S.C.
1125( a) ( 1) ( A) , and the right to publicity under the Illinois right to publicity act.

CLASS AND COLLECTIVE ACTIONS

Challenges t o Class Cert ificat ion Based Upon St at ut e-of-Limit at ions
Issues:

The Third Circuit on September 22nd, issued yet another important class action
decisiona hundred-page opinion that is required reading for all involved in
class action litigation. In re: Community Bank of Northern Virginia and
Guarantee National Bank of Tallahassee Second Mortgage Loan Litigation, 622
F.3d 275 ( 3rd Cir. Sept. 22, 2010) , available here
( http://www.ca3.uscourts.gov/opinarch/083621p.pdf) .

J udge Ambro authored the opinion. This post only focuses on a portion of the
opinion that addresses the impact of statute-of-limitations issues on class
certification. As J udge Ambros opinion aptly captures the law of the Third
Circuit, I quote from his opinion extensively below:

Situations abound where statute-of-limitations issues overlap with certain of the
Rule 23 requirements. For example, defendants may contend that statute-of-
limitations defenses preclude a finding of typicality under Rule 23(a), either because
the named plaintiffs claims are untimely (and thus not typical of the class), see,
e.g., Franze v. Equitable Assurance, 296 F.3d 1250, 1254 (11th Cir. 2002), or
because the proposed class includes numerous class members with untimely claims
(rendering the named plaintiffs timely claims atypical), see, e.g., Doe v. Chao, 306
F.3d 170, 184 (4th Cir. 2002). Relatedly, defendants may oppose class
certification on the ground that class members with untimely claims must rely on
equitable tolling to save their claims, which presents an individual question of law
and fact that could predominate over common questions under Rule 23(b)(3), see,
e.g., In re Linerboard Antitrust Litig., 305 F.3d 145, 16062 (3d Cir. 2002), or
challenge the predominance requirement in light of the presence of idiosyncratic
statute-of-limitations issues among the laws of various states in a nationwide class
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action, see Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 29596 (1st
Cir. 2000).

Statute-of-limitations issues also touch the adequacy requirement. See, e.g.,
Goodman v. Lukens Steel Co., 777 F.2d 113, 124 (3d Cir. 1985) (named plaintiffs
were inadequate representatives in class action challenging discriminatory practices
in the initial assignment of newly hired employees, because [ a] ll of the named
plaintiffs . . . were originally hired outside the [ statute-of-] limitations period, and
therefore, none ha[ d] a viable complaint about discrimination in initial assignment).
Indeed, the merits of a statute-of-limitations defense to the named plaintiffs claims
may be relevant to evaluating their adequacy as class representatives in the same
way any type of defense may be relevant to that inquiry, i.e., named plaintiffs may
be inadequate representatives if their claims are extremely weak as compared to
the rest of the class. As J udge Posner explained,

if when class certification is sought it is already apparent . . . that the class
representatives claim is extremely weak, this is an independent reason to doubt
the adequacy of his representation. . . . One whose own claim is a loser from the
start knows that he has nothing to gain from the victory of the class, and so he has
little incentive to assist or cooperate in the litigation; the case is then a pure class
action lawyers suit.

Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1157 (7th Cir. 1999) (internal
citations omitted). Thus, to the extent the claims of the named plaintiffsas
compared with the rest of the classare subject to fatal statute-of-limitations
defenses, that inquiry may be relevant to whether they can adequately represent
absent class members whose claims do not suffer from timeliness problems. Cf.
Beck v. Maximus, Inc., 457 F.3d 291, 297 (3d Cir. 2006) (the challenge presented
by a defense unique to a class representative is that the representatives interest
might not be aligned with those of the class, and the representative might devote
time and effort to the defense at the expense of issues that are common and
controlling for the class).

For more on this, click here for an article by Shannon P. Duffy for Law.com.

Class Act ions Subclassing and Bifurcat ion t o Remedy Predominance
Issues:

The Sixth Circuit in Randleman v. Fidelity Natl Title Ins. Co., 2011 U.S. App.
LEXIS 9915 ( 6th Cir. May 16, 2011) declined to rule on a split in the circuits as
to whether subclassing and bifurcation may be used to remedy predominance
issues in class litigation. The Second, Fourth, and Ninth Circuits allow such
practices so long as common issues predominate, see In re Nassau County Strip
Search Cases, 461 F.3d 219, 226 ( 2nd Cir. 2006) ; Gunnels v. Healthplan
Services, 348 F.3d at 417, 439 ( 4th Cir. 2003) ; Valentino v. Carter-Wallace,
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Inc., 97 F.3d 1227, 1234 ( 9th Cir. 1996) ; whereas the Fifth and the Eleventh
Circuits do not permit such practices, see Sacred Heart Health Systems, Inc. v.
Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1176 ( 11th Cir. 2010) ;
Castano v. American Tobacco Co., 84 F.3d 734, 745 & n.20 ( 5th Cir. 1996) .
See also Gunnels, 348 F.3d at 446-47 ( Neimeyer, J ., concurring in part and
dissenting in part) .

Combined Class and Collect ive Act ions:

In Ervin v. O.S. Restaurant Servs., Inc., 632 F.3d 971 ( 7th Cir. J an 18, 2011) ,
the district court granted conditional certification of plaintiffs FLSA claims, but
denied Rule 23 certification on supplemental state-law claims against the
defendant, finding that a FLSA collective action and state law class claims could
not be litigated together. The Court of Appeals, J udge Dianne Wood writing for
the panel, reversed, holding that there is no categorical rule against certifying a
Rule 23( b) ( 3) state-law class action in a proceeding that also included a FLSA
collective action, referring to such an action as combined actions.

Federal J udge Takes Race and Gender of Counsel Int o Account in
Deciding Whom t o Appoint as Class Counsel in Securit ies Class
Act ion Lit igat ion:

Federal District J udge Harold Baer of the Southern District of New York on
September 20, 2010, in In re: Gildan Activewear Inc. Securities Litigation, No.
08-civ-05048 ( S.D.N.Y. Sept. 20, 2010) , issued an order which reads, in part,
as follows:

WHEREAS this proposed class includes thousands of participants, both male
and female, arguably from diverse backgrounds, and it is therefore important to
all concerned that there is evidence of diversity, in terms of race and gender, in
the class counsel I appoint, see In re J .P. Morgan Chase Cash Balance Litigation,
242 F.R.D. 265, 277 ( S.D.N.Y. 2007) ; it is hereby
ORDERED that Co-Lead Counsel, Robbins Geller Rudman & Dowd LLP and
Labaton Sucharow LLP, shall make every effort to assign to this matter at least
one minority lawyer and one woman lawyer with requisite experience; and it is
further
. . . . . . . .
ORDERED that the parties shall appear for a preliminary approval hearing on
October 7, 2010, at 12:30 p.m., at which point Plaintiffs compliance with the
diversity requirement, as well as the other requirements listed here, will be
evaluated, and a date for the Settlement Fairness Hearing shall be set.
See also In re J .P. Morgan Chase Cash Balance Litigation, 242 F.R.D. 265, 277
( S.D.N.Y. 2007) ( The proposed class includes thousands of Plan participants,
both male and female, arguably from diverse racial and ethnic backgrounds.
Therefore, I believe it is important to all concerned that there is evidence of
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diversity, in terms of race and gender, of any class counsel I appoint. A review
of the firm biographies provides some information on this score. Here, it
appears that gender and racial diversity exists, to a limited extent, with respect
to the principal attorneys involved in the case. Co-lead counsel has met this
Court' s diversity requirement--i.e., that at least one minority lawyer and one
woman lawyer with requisite experience at the firm be assigned to this
matter.) .

Tip of the hat to Andrew Longstreth with Am Law Litigation Daily for bringing
this to our attention.
FOREIGN CORRUPT PRACTICES ACT

Foreign Corrupt Pract ices Act:

In United States v. Control Components, Inc., Case No. 8:09-cr-00077-J VS ( C.D.
Cal, May 9, 2011) , the court found that a jury, not a judge, should decide
whether someone is a foreign official under the Act.

In United States v. Lindsey Manufacturing Co., 2011 U.S. Dist. LEXIS 43895
( S.D. Cal. Apr. 20, 2011) ( a.k.a. United States v. Aguilar) , J udge Matz found
that officials of a Mexican state-owned utility were foreign officials under the
Act.
ATTORNEYS FEES


At t orneys Fees Award t o t he Defense Against EEOC:

In EEOC v. Tricore Reference Laboratories, Case No. 09-CV-956 ( D.N.M. Apr. 27,
2011) , District J udge J ohn Conway awarded attorneys fees to the employer,
which had prevailed on summary judgment. The court found that despite
black letter law, with which the EEOC is presumably intimately familiar, it
nevertheless pursued a failure to accommodate theory, even though its own
discovery responses to a request to admit facts had gutted its claim. See also
EEOC v. Peoplemark, Inc., 2011 U.S. Dist. LEXIS 38696 ( W.D. Mich. Mar. 31,
2011) .

At t orneys Fees Prevailing Part y:

In National Rifle Association of America, Inc. v. Chicago, 2011 U.S. App.
LEXIS 11055 ( 7th Cir. J une 2, 2011) , the Court reversed the District
Courts holding that the plaintiffs were not prevailing parties entitled to
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attorneys fees under 1988( b) because Chicago had repealed the
ordinance after the Supreme Courts decision in McDonald. In reversing,
the Circuit held: If a favorable decision of the Supreme Court does not
count as the necessary judicial impramatur on the plaintiffs position,
what would? The Court held that after the Supreme Courts McDonald
decision, the citys position was untenable and it had no choice but to
repeal the law and deliver a victory to plaintiffs without the need for a
formal injunction.

In Singer Mgt. Consultants, Inc. v. Milgram, 2011 U.S App LEXIS 12106
( 3rd Cir. J une 15, 2011) ( en banc) , a deeply divided Third Circuit held
that the plaintiff was not a prevailing party within the meaning of 42
U.S.C. 1988 where plaintiff obtained a TRO but later was denied a
preliminary injunction because of the defendants voluntary change of
position which mooted the case. The majority held that the plaintiff did
not receive a judgment on the merits, as required by Buckhannon, as
the TRO was not issued on the merits, and accordingly did not confer
eligibility for prevailing party status.
CHOICE OF LAW / FORUM

Choice of Forum Clauses in Employment and Set t lement Agreement s:

On October 18, 2010, J udge Deborah K. Chasanow issued an opinion on a
motion to remand to state court a civil action removed to the Federal District of
Maryland. Ruifrok v. White Glove Restaurant Servs., LLC, 2010 U.S. Dist. LEXIS
110369 ( D. Md. Oct. 18, 2010) , available here. The opinion, as well as an
earlier Ninth Circuit opinion to which it makes reference (Kamm v. Itex Corp.,
568 F.3d 752 ( 9th Cir. 2009) ) , underscore in drafting employment agreements
and severance / settlement agreements, that the language of the choice of
forum clause can be dispositive as to whether the controversy can be removed
to federal court or not. Additionally, Kamm teaches us that motions to remand
predicated on a choice of forum clause are not covered by the defect
exception in 28 U.S.C. 1447( d) , and thus the 30-day rule does not apply to
such motions to remand.

Drafting Forum Selection Clauses

In Ruifrok, the language of the forum selection clause read as follows:

This Agreement and the parties performance hereunder shall be governed by
and interpreted under the laws of the State of Maryland. Employee agrees to
submit to the jurisdiction of the courts of the State of Maryland, and that venue
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for any action arising out of this Agreement or the parties performance
hereunder, shall be in the Circuit Court for the County of Montgomery, Maryland.

In Ruifrok, the court was called upon to decide whether that language
necessitated a remand of the case to state court. J udge Chasanow looked at
cases containing forum selection clauses that applied to all claims arising from
or relating to the employment relationship and cases where courts had found
that a statutory wage claim was not a matter relating to the agreement and
therefore not encompassed by the forum selection clause. She contrasted
those cases with the matter before her, finding that the language in the instant
case applied not only to actions arising out of this agreement, but also to
those arising from the parties performance hereunder. She found that the
latter clause encompassed statutory wage claims under the FLSA and the
Maryland Wage Payment and Collection Law, as resolution of issues under those
statutes would require careful scrutiny of the employment agreement to
determine the nature and scope of the plaintiffs job duties, and the method by
which he was compensated. In short, she held that plaintiffs claims related to
defendants performance, or non-performance, under the agreement, and thus
were encompassed by the forum selection clause.

J udge Chasanow found that a forum selection clause constitutes a waiver of the
right of removal to federal court; that forum selection clauses are presumptively
enforceable; and that the clause at issue was mandatory, not permissive. Her
finding that the clause was mandatory was based upon the clauses use of the
phrase shall be rather than permissive language.

The opinion also discusses tort claims, finding that they could not be
adjudicated without analyzing whether the parties were in compliance with the
underlying agreement, and thus were governed by the forum selection clause.
J udge Chasanow also noted that the agreement had been drafted by
defendants, and thus she stated that they could have specifically reserved a
right to remove the action to federal court.

The opinion contains a brief discussion of the exceptions to the presumption of
enforceability of a forum selection clause, which are:

( 1) their formation was induced by fraud or overreaching; ( 2) the complaining
party " will for all practical purposes be deprived of his day in court" because of
the grave inconvenience or unfairness of the selected forum; ( 3) the
fundamental unfairness of the chosen law may deprive the plaintiff of a remedy;
or ( 4) their enforcement would contravene a strong public policy of the forum
state. Allen v. Lloyd' s of London, 94 F.3d 923, 928 ( citing Carnival Cruise
Lines, Inc. v. Shute, 499 U.S. 585, 595 ( 1991) ; Bremen v. Zapata Off-Shore
Co., 407 U.S. 1, 12-13, 15, 18 ( 1972) ) .

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Defendants argued that enforcement of the clause would be unreasonable
because two individual defendants were not signatories to the employment
agreement. J udge Chasanow had no difficulty with this argument, finding that
removal is only permissible if all of the defendants consent to removal, and the
company had waived its right to removal by virtue of the forum selection
clause, and therefore could not consent to removal. Additionally, she pointed
out that it is well-established that non-signatories to an agreement are
nevertheless covered by choice of forum clauses so long as their alleged
conduct is closely related to the contract in question. The individuals were
being sued under the FLSA and Maryland Wage Payment and Collection Law as
employers within the meaning of those statutes, and therefore the claims
against them were closely related to the contract at issue.

So, in terms of takeaways, if anything, the opinion underscores the importance
of carefully drafting the forum selection clause either to prevent removal or
assure that the option is preserved.

Procedure

While the motion to remand in Ruifrok was filed within 30 days of removal,
J udge Chasanows citation of the Kamm case led me there, and it is worthwhile
to share with our readers the holding in Kamm, which is consistent with the
holdings of all other circuits that have addressed the issue. Some fairly arcane
history is a necessary predicate to understanding the issue.

Prior to 1996, the removal statute ( 28 U.S.C. 1447( c) ) provided: A motion to
remand on the basis of any defect in removal procedure must be made within
30 days after the filing of the notice of removal under 1446( a) . If at any
time before final judgment it appears the district court lacks subject matter
jurisdiction, the case can be remanded.

Prior to 1996, the courts had held that the 30 day requirement of 1447( c)
did not apply to motions to remand based on forum selection clauses.

In 1996, the statute was amended to delete the phrase any defect in removal
procedure and substitute simply any defect. The argument was then made
that the any defect language encompassed a motion to remand based on a
forum selection clause. Prior to Kamm, the Tenth, Seventh, First, and Eleventh
circuits had rejected that argument, finding that motions to remand based on a
forum selection clause are not governed by the 30 day rule. The Kamm court
agreed, finding that the any defect language had been substituted for the
prior language to cover motions to remand based on non-procedural statutory
requirements for removal such as the forum defendant rule ( dont let those
words confuse youthey have no relevance to a forum selection clause) . Thus,
the motion to remand based on a forum selection clause, like the motion that
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was successful in Ruifrok, need not necessarily be filed within 30 days, but
rather, must be filed within a reasonable timeframe. The Kamm court was
clearly uncomfortable with this result, stating, there are good policy reasons to
impose a statutory time limit on a motion to remand based on a forum selection
clause, whether that limit be thirty days or some other period. Having
expressed its displeasure, the Kamm court noted that that is a task for
Congress, and not the court, and thus it affirmed the district courts order
remanding that case to state court.

So, the takeaway from Kamm would seem to be that best practice, as was the
case in Ruifrok, is to file your motion to remand within 30 days even though not
required to do so, and in any event, to file within a reasonable time after notice
of removal.

Tip of the hat to Will Aitchison of the FLSA Blog.

Scope of Forum Select ion Clause:

In Simonoff v. Expedia, Inc., 2011 U.S. App. LEXIS 10374 ( 6th Cir. May 24,
2011) , the Court, in interpreting the scope of a forum selection clause, held
that the phraseology courts of a state limits jurisdiction to state courts;
whereas the phrase courts in a state permits jurisdiction in both state and
federal courts.
DISPARAGEMENT / DEFAMATION

Absolute vs. Qualified Immunity in U5 Defamation Cases:
The state courts continue to be deeply divided as to whether a qualified or an
absolute privilege applies to statements made by the employer on a Form U5.
New York and California have found such statements to be absolutely privileged;
whereas seven other states have found them to be qualifiedly privileged. See,
e.g., Rosenberg v. Metlife, Inc., Slip Op. 02627, 2007 WL 922920 at *7 ( NY
Mar. 29, 2007) ( absolute privilege under New York law) ; Fontani v. Wells Fargo
Investments, LLC, 28 Cal. Rptr. 3d 833 ( Cal. Ct. App. 2005) ( absolute privilege
under California law) ; Wietecha v. Ameritas Life Ins. Corp., No. CIV 05-0324-
PHX-SMM, 2006 WL 2772838, at *11 ( D. Ariz. Sept. 27, 2006) ( qualified
privilege under Arizona law) ; Dickinson v. Merrill Lynch, Pierce, Fenner & Smith
Inc., 431 F. Supp. 2d 247, 261-62 ( D. Conn. 2006) ( qualified privilege under
Connecticut law) ; Smith-J ohnson v. Thrivent Fin. For Lutherans, No.
803CV2551T30EAJ , 2005 WL 1705471, at *6 ( M.D. Fla. J uly 20, 2005)
( qualified privilege under Florida law) ; Dawson v. New York Life Ins. Co., 135
F.3d 1158, 1163-64 ( 7th Cir. 1998) ( qualified privilege under Illinois law) ;
Andrews v. Prudential Sec., Inc., 160 F.3d 304, 307 ( 6
th
Cir. 1998) ( qualified
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privilege under Michigan law) ; Prudential Sec. Inc. v. Dalton, 929 F. Supp. 1411,
1418 ( N.D. Okla. 1996) ( qualified privilege under Oklahoma law) ; Glennon v.
Dean Witter Reynolds, Inc., 83 F.3d 132, 137 ( 6
th
Cir. 1996) ( qualified privilege
under Tennessee law) ; In re Wakefield, 293 B.R. 372, 385-86 ( qualified privilege
under Texas law) .

Referring t o Former Boss as Slimebag Does Not Const it ut e
Disparagement , At Least in Ohio:

In Ohio Education Association v. Lopez, 2010 Ohio App. LEXIS 4272 ( Ohio Ct.
App. Oct. 19, 2010) , available here, the Court of Appeals of Ohio for the 10th
Appellate District held in a breach of contract case that the underlying contract,
a separation agreement, had not been violated even though it contained a non-
disparagement clause and even though the defendant, Lopez, referred to his
former boss as a slimebag. The court found that this was not a material
breach. Further, the court seemed to suggest that, because Lopezs
conversation ( actually a voicemail message) was directed to someone whom he
thought was a friend, this was apparently a no harm-no foul situation.
Looking at various dictionaries, a slimebag is defined as a scuzzbucket, a
scuzzbag, a disagreeable person, an unpleasant person; a creep, a sleazebag, a
crud, a degenerate, a deviant, a dirtbag, and a dirtball. While the level of civil
discourse has apparently degenerated so far in Ohio that such a reference is
treated as a slang expression [ that] is such a part of modern casual speech as
to be almost meaningless, one can only hope that this holding will be confined
to Ohio.

Oftentimes, we draft our non-disparagement clauses to read somewhat as
follows:
The Parties agree to make no disparaging, untrue, or misleading written or oral
statements about or relating to the other Party, their integrity, acumen, ethics,
inter-personal skills, job performance, business knowledge or business
practices.
One wonders if language like the foregoing had been utilized in the Lopez case
whether the court would have arrived at a different conclusion. Frankly, given
the rationales of the court, I am far from certain that the result would be
different. After all, the court found that there was a breach, but that the
breach was not material because it caused no damages. In addition, the court
found that Mr. Lopez had left the voicemail message with outside counsel for
the OEA, someone whom he stated he thought to be a friend. Now, I have
piqued your interest undoubtedly. Why would Mr. Lopez be calling a lawyer for
OEA. Put on your seatbelt folks the defendant who referred to his former
boss, the executive director of the OEA, as a sleazebag was none other than the
former general counsel of the OEA. So, in Ohio, lawyers can talk to lawyers
whom they think are their friends and refer their former bosses as slimebags
with impunity.
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Even though the court finds a breach, because it finds the breach is not
material, I guess that the breach could not be the predicate to rescind the
agreement and clawback the consideration/severance monies paid to the former
employee. I havent thought through completely how we might revise our non-
disparagement clauses, but it seems to me that one might consider language
that states, in essence, that a breach is a breach, or put more succinctly, one
need not establish damages or that the breach need not be material to obtain
relief, e.g., rescission and disgorgement of severance pay.

And, lets not forget: Whats sauce for the goose is sauce for the gander.
Here the former employee avoided a judgment against him, but this means that,
with the passage of time, eventually we will see Ohio cases ( at least from this
court) with the shoe on the other foot. I can envision the executive director
saying to people whom he thinks are his friends that he thought the general
counsel was a slimebag. While I have not researched it, Ill bet you that there
are significant number of lawyers out there who think that they are defamed
( not to mention disparaged) if they were referred to as a slimebag. And, given
the warm fuzzy feelings that juries have about lawyers, lots of luck in proving
that you were actually damaged by being called a slimebag.

Further, given that Ohio or at least this one Ohio appellate court has carved out
the I thought he was a friend exception, maybe ones non-disparagement
clause has to state that a disparagement stated to anyone, friend or otherwise,
constitutes an actionable breach.

Lets hope that this decision is not representative of some trend in how courts
will treat non-disparagement clauses. Otherwise, we might as well tell our
clients that we ought not waste our time and their money in negotiating such
clauses.

Tip of the hat to J on Hyman at Ohio Employers Law Blog for bringing this case
to my attention.

Virginia Supreme Court Reject s Damages for Breach of
Nondisparagement Agreement :
The Virginia Supreme Court recently reaffirmed the rule that a breach of
contract does not allow recovery of damages based on humiliation or injury to
feelings.

In Isle of Wight County v. Nogiec and Small v. Nogiec, 704 S.E.2d 83 ( Va.
2011) , the Court affirmed the trial court' s reversal of two plaintiff' s verdicts
based on statements made by a county official in violation of a
nondisparagement clause in the plaintiff' s severance agreement. As part of
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Alan Nogiec' s decision to retire early from his position as director of the Parks
and Recreation Department for the Isle of Wight County, he entered a severance
agreement with the County providing that the parties would " refrain from
making any disparaging comments or statements, whether written or oral,
about the other or any member of the County' s Board of Supervisors,
administrators, or employees." Id. at 84.

Two months later, Patrick Small, a witness before the Board, testified that the
previous Parks and Recreation director ( that is, Nogiec) had made significant
mistakes, and indeed, had taken action that " border[ ed] on negligence." Id. at
85. Nogiec brought suit against the County for breach of contract, and against
Small for defamation. After trial, the court entered verdicts for Nogiec against
both defendants.

The Virginia Supreme Court reversed the judgment against the County. The
evidence of harm resulting from the breach, which the Court described as
" embarrassment and humiliation," was not recoverable for a breach of
contract. Id. at 86. The Court based his holding on the rule that " tort damages
are not recoverable for breach of contract under the circumstances of this
case." Id. at 87. Evidence of pecuniary damages was necessary, and Nogiec did
not provide it. The Court also pointed out that if Nogiec were permitted to
prevail on both his breach of contract and defamation claims, he would have
been recovering twice based on the same evidence. Nogiec testified that he
" believed" that Small' s statements adversely affected his ability to find new
employment, but failed to present any evidence other than the fact that he was
not invited for job interviews for any of the positions for which he applied
during a two-month period following Small' s report to the Board.

The Court upheld, by contrast, the verdict against Small for defamation.
Though it acknowledged that Small' s testimony was entitled to a qualified
privilege for reporting his duties to the Board, the Court pointed out that the
circuit court had given the jury a proper instruction about malice ( the necessary
showing to overcome the privilege) .

In light of these holdings, lawyers drafting severance agreements should not
presume that a nondisparagement clause will provide their clients with complete
compensation for nonpecuniary damages. As long as the law refuses to grant
recovery of emotional distress or other tort-like damages, drafters must pay
close attention to which remedies the law will actually permit. Presumably, the
parties to a severance/settlement agreement can agree, by contract, that
emotional distress and humiliation, resulting from a breach of a
nondisparagement clause, is compensable. But, what employer would ever
agree to such a provision? One approach is to provide in the nondisparagement
clause that proof of a breach alone without necessarily proof of actual damage,
is compensable, and that the jury can determine the damages to be awarded.
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Or, one could provide that proof of a breach automatically results in an award of
a fixed amount of liquidated damages. Bottom line, the Virginia Supreme
Court' s decision underscores the need for counsel to carefully craft
nondisparagement clauses so that they have teeth and hopefully deter each
side from badmouthing the other. While the Nogiec case involves an employee
being disparaged, in my experience, oftentimes nondisparagement clauses are
of vital importance to management. I would be interested in the suggestions of
others on how to craft more meaningful nondisparagement clauses.
CONFIDENTIALITY

Agreement s To Maint ain Confident ial Informat ion:

In News America Marketing In-Store, LLC v. Emmel, 2011 U.S. App. LEXIS
11810 ( 11th Cir. J une 8, 2011) , the defendant former employee, Robert
Emmel, while still employed with the plaintiff former employer, News America,
felt that the News America was engaged in various unlawful activity. He
reported the alleged wrongdoing to U.S. Senator Sarbanes and to the SEC, and
sent both the senator and the SEC a number of News America company
documents to support his claims. Later, but before News America discovered
Emmels external disclosures of company documents, the relationship between
Emmel and News America soured, and News America terminated Emmel. Emmel
was offered a job with another employer, and needed a letter from News
America certifying that he was not bound under any non-compete agreement.
News America agreed to provide such a letter, but only in exchange for Emmel
signing a nondisclosure agreement ( NDA) , which provided that:

Emmel agrees that he will not disparage, denigrate or defame the
Company and/or related persons, or any of their respected business
products, practices, or services. Emmel further agrees that he will
maintain in complete confidence, and not discuss, share, reveal, disclose
or make available to any third party or entity any Confidential
Information of the Company.

Emmel signed the NDA on December 21, 2006, but only after he mailed a
number of additional News America company documents to a staffer for the
U.S. Senates Finance Committee on December 20, 2006 one day before he
signed the NDA. News America later learned of Emmels various disclosures of
company documents to outside parties and sued Emmel for breach of contract.

News America made two arguments ( 1) that certain documents in place when
Emmel was employed by News America created non-disclosure obligations
such as News Americas Standards of Business Conduct Policy; and ( 2) that
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Emmel breached the December 21, 2006 NDA by virtue of the mailing Emmel
sent out on December 20, 2006.
Both the District Court and the Eleventh Circuit rejected News Americas first
argument, and held that the employment documents in question did not impose
contractual nondisclosure obligations on Emmel.

But, the District Court agreed with News Americas second argument, granted
News America summary judgment on that aspect of News Americas contract
breach claim, and issued a permanent injunction barring Emmel from making any
further disclosures of News Americas confidential information. The court
reasoned that, while Emmel mailed out the documents in question the day
before he signed the NDA, it was undisputed that the recipient did not receive
the package until after Emmel had signed the NDA. The court found it
significant that Emmel didnt do anything to prevent the disclosure after he
had signed the NDA for example, he did not warn the recipient not to view the
documents. The court reasoned that Emmel thereby breached the NDA.

The Eleventh Circuit reversed, based on the verb tense which was used in the
NDA. That is, the NDA provided that Emmel will not disparage i.e., it was
written in the future tense, and therefore did not cover any of Emmels past
conduct which predated his signature of the NDA. The court reasoned that
nothing indicated that the parties intended the agreement to apply
retroactively, or to provide any assurances about past actions. The court
ultimately agreed with Emmels arguments that [ t] o capture his pre-contract
conduct the promises would have needed to be phrased in the present
perfect tense i.e., Emmel agrees he has not disparaged and that he has
maintained in complete confidence News Americas confidential information,
and that the District Courts ruling disregards the basic rule that a contract
operates only prospectively from execution absent language of retroactive
effect.

Needless to say, the decision vividly highlights the paramount importance of
careful drafting when it comes to writing contracts, employment agreements,
employment policies, settlement agreements, and other such documents.
DISCOVERY

Defense Discovery Subpoenas t o Plaint iffs Former and Current
Employers:

To the extent that defendants seek any and all . . . documents relating to
plaintiffs relationships with their former employers, courts have consistently
rejected such requests as overly broad on their face. See, e.g., Barrington v.
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Mortgage IT, Inc., 2007 U.S. Dist. LEXIS 90555 ( S.D. Fla. Dec. 10, 2007)
( rejecting subpoenas duces tecum which sought any and all documents, files
and records, reflecting or relating to the employment of the plaintiff as overly
broad on their face) ; Badr v. Liberty Mutual Group, Inc., 2007 U.S. Dist. LEXIS
73437 ( D. Conn. Sept. 28, 2007) ( holding that defendants subpoena of any
and all records relating to plaintiff was overbroad and limiting the subpoena to
documents relating to prior claims or complaints against plaintiffs coworkers) ;
Richards v. Convergys Corp., 2007 WL 474012 ( D. Utah Feb. 7, 2007)
( quashing overbroad subpoena duces tecum directed to plaintiffs former
employer that sought all documents in your possession or control regarding
the employment of the plaintiff) ; Richmond v. UPS Service Parts Logistics,
2002 U.S. Dist. LEXIS 7496, at *13 ( S.D. Ind. Apr. 5, 2002) ( holding that a
discovery request for the plaintiff' s entire personnel file was on its face
overbroad) ; Franzon v. Massena Mem. Hosp., 189 F.R.D. 220, 222 ( N.D.N.Y.
1999) ( finding that defendant' s discovery request for " any and all documents"
without limitations is overbroad) .

In addition to being facially overbroad, courts have found that such subpoenas
can have a chilling effect on a plaintiffs decision to assert his or her legal
rights. See Rivera v. NIBCO, Inc., 364 F.3d 1057, 1065-66 ( 9th Cir. 2003)
( recognizing that discovery that would cause a chilling effect on plaintiffs
seeking to enforce their employment rights is an unreasonable burden and
therefore affirmed the district courts protective order) ; EEOC v. Bice of
Chicago, 229 F.R.D. 581, 2005 U.S. Dist. LEXIS 15959 ( N.D. Ill. 2005) ( barring
discovery seeking immigration status of employment discrimination plaintiffs
because such discovery was oppressive, a substantial burden on the parties and
the public interest and would have a chilling effect on victims of employment
discrimination coming forward to assert claims) .
Moreover, when presented with such overly broad requests, courts have
consistently rejected the requests on the grounds that they could be obtained
through less obtrusive and intrusive means. See Graham v. Casey' s Gen. Stores,
Inc., 206 F.R.D. 251, 254 ( S.D. Ind. Mar. 18, 2002) ( granting motion to quash
subpoenas to present and former employers for plaintiffs medical records in a
discrimination case, since, while the plaintiffs medical history is important to
her disability discrimination claims, defendant could have obtained the records
from her medical providers and had no need to take the more intrusive step of
seeking this medical information from her employers) ; Conrod v. The Bank of
New York, 1998 U.S. Dist. LEXIS 11634 ( S.D. N.Y. J uly 30, 1998) ( holding that
documents the subject of a broad subpoena might have been obtained from
plaintiff via less intrusive means) ; see also Collins v. Midwest Medical Records
Assoc., Inc., 2008 U.S. Dist. LEXIS 18368, at 6 ( E.D. Wis. Feb. 7, 2008)
( granting plaintiffs motion for a protective order and quashing defendants
subpoena while noting [ i] f MMRA is unable to obtain the information it seeks
directly from Collins, MMRA is free to file a motion to compel.) .

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We previously posted on this issue here, but as it relates to the instant post, it
bears restating that courts have also held as a general rule that plaintiffs
prior job performance is irrelevant in employment cases. See Laffey v. J anssen,
2006 U.S. Dist. LEXIS 14833 ( M.D. Fla. 2005) ( excluding evidence of prior
performance for the same employer) . See also Neuren v. Adduci, Mastriani,
Meeks & Schill, 43 F.3d 1507, 1511 ( D.C. Cir. 1995) ( holding that because
plaintiffs difficulties with interpersonal relationships at her prior job was
irrelevant, the district court improperly admitted such evidence) ; Zenian v.
District of Columbia, 283 F. Supp. 2d 36 ( D.D.C. 2003) ( holding that evidence
of prior employment cannot be introduced in the attempt to prove that plaintiff
acted consistently with his prior conduct) ; Fyock v. American Public Gas Assn,
Civ. No. 2008 CA 006454 B ( D.C. Sup. Ct. Apr. 24, 2009) ( finding that
defendants proffered justification for the discovery of plaintiffs employment
recordsincluding that it is standard practice and that such discovery would
" shed light on Plaintiffs termination of previous employment and lead to
discovery of admissible evidence"failed to demonstrate how plaintiffs
employment records were relevant or discoverable) .

And courts have consistently prevented discovery of employees character. See
Neuren, 43 F.3d at 1511 ( holding that the district court improperly admitted
evidence of plaintiffs difficulties with interpersonal relationships at her prior
job) ; Zubulake v. UBS Warburg, LLC, 382 F. Supp. 2d 536 ( S.D.N.Y. 2005)
( holding that using plaintiffs prior job performance to show plaintiff was
insubordinate and uncooperative at the job he was terminated from was
inadmissible propensity evidence) ; Fyock, Civ. No. 2008 CA 006454, at p. 9-10
( As to Plaintiffs employment with [ his former employers] , this Court finds that
even if the Plaintiffs employment records did contain evidence suggesting that
Plaintiff had a problem with his emotional behavior during his employment with
[ his former employers] , such information is irrelevant to Plaintiffs claims of age
discrimination, breach of contract and promissory estoppel.) .
Namely, such evidence would not be admissible at trial as its only purpose would
be an attempt to prove that the employee acted consistently with his character
as evidenced by his prior employment. See Neuren, 43 F.3d at 1511 ( holding
that the district court improperly admitted evidence of plaintiffs difficulties
with interpersonal relationships at her prior job) ; Zenian, 283 F. Supp. 2d at 40
( D.D.C. 2003) ( If the District is offering the [ prior employment] evidence to
show that plaintiff has always been a bad employee, it is doing exactly what it
cannot do: introduce evidence of a persons character to prove that his
behavior on one or more occasions was consistent with that character.
Fed.R.Evid. 404( a) . That, of course, is exactly what a litigant cannot do.) .
Character evidence is also generally considered not to be an element of any
claim or defense in employment cases. See Zubulake, 382 F. Supp. 2d at 539
n.1 ( Plaintiffs character is not an essential element of any claim or defense in
an employment discrimination case. The prohibitions of Rule 404( b) therefore
apply.) . See also EEOC v. HBE Corp., 135 F.3d 543, 553 ( 8th Cir. 1998)
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( plaintiff' s character was not an essential element of his retaliatory discharge
claim) .

EEOC Subpoena:

In EEOC v. UPMC, 2011 U.S. Dist. LEXIS 55311 ( W.D. Pa. May 24, 2010) ,
District Court J udge Terrence F. McVerry held in a EEOC investigation of a ADA
charge where the charging party was a former employee of a nursing home
owned by the University of Pittsburg Medical Center, which employed 170
individuals, the EEOC sought production of information regarding every UPMC
employee, some 48,000 employees. The Court rejected EEOCs subpoena,
finding that it was an improper fishing expedition. The Court relied on the Third
Circuits holding in EEOC v. Kronos, Inc., 620 F.3d 287 ( 3rd Cir. 2010) , which
had held:

The EEOC is empowered to investigate charges of discrimination to determine
whether there is reasonable cause to believe that an employer has engaged in
an unlawful employment practice. See 42 U.S.C. 2000e-5( b) , 12117( a)
( expanding the EEOC' s power to investigate and address discrimination on the
basis of disability) . In connection with its investigation, the EEOC may issue
administrative subpoenas. See id. 2000e-9; 29 U.S.C. 161( 1) . However, the
EEOC' s statutory investigative authority is not plenary; the EEOC is entitled to
access only evidence " relevant to the charge under investigation." 42 U.S.C.
2000e-8( a) .
RICO

RICO Undocument ed Workers:

In Edwards v. The Prime, Inc., 602 F.3d 1276 ( 11th Cir. Apr. 9, 2010) , the
court found that the employees did not sufficiently allege RICO predicate acts
based upon violations of 8 U.S.C. 1324( a) ( 3) ( a) , which makes it a federal
crime for any person to knowingly hire for employment at least 10 individuals
with actual knowledge that the individuals are [ illegal] aliens during a twelve-
month period, or 1324( a) ( 1) ( A) ( v) , which makes it a crime for any person to
knowingly or recklessly conceal, harbor, or shield from detection, or attempt to
conceal, harbor, or shield from detection any alien who has come to, entered,
or remains in the United States illegally. On the other hand, the court found
that plaintiffs sufficiently alleged that defendants encouraged or induced illegal
aliens to reside in the United States, and concealed, harbored, or shielded aliens
from detection in violation of 1324( a) ( 1) ( A) ( iii) and ( iv) .
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PROCEDURE

Can an Employer in t he Employment Applicat ion Short en t he St at ut e
of Limit at ions for Ant i-Discriminat ion Claims?

The answer, rather uniformly, is affirmative. Recently, in Dunn v. Gordon Food
Services, Inc., 2011 U.S. Dist. LEXIS 13387 ( W.D. Ky. Feb. 10, 2011) , Chief
J udge Russell upheld the employer' s shortening of the statute of limitations
where the employment application with Ms. Dunn, on its last page, had eleven
clauses to which the applicant had to agree as a condition of being considered
for employment, and the fourth clause stated that the applicant agreed " that
any action or suit against [ the employer] arising out of any employment or
termination of employment, including but not limited to claims arising under the
State or Federal civil rights statutes, must be brought within one year of the
event giving rise to the claim or be forever barred." This clause went on to
state that the applicant " waive[ d] any statute of limitations to the contrary."
The Court, citing a plethora of authorities, both inside and outside the Sixth
Circuit upholding such provisions, sustained the defense motion for summary
judgment based on that clause. See also Ravenscraft v. BNP Media, Inc., No.
09-C-6617, 2010 U.S. Dist. LEXIS 37919, 2010 WL 1541455, at *1 ( N.D. Ill.
Apr. 15, 2010) ; PSC Info Group v. Lason, Inc., 681 F. Supp. 2d 577, 587 ( E.D.
Pa. 2010) ; Cole v. Federal Exp. Corp., No. CV-06-3485, 2008 U.S. Dist. LEXIS
71431, 2008 WL 4307090, at *9 ( E.D. Pa. Sept. 19, 2008) ; Vincent v.
Comerica Bank, No. H-05-2302, 2006 U.S. Dist. LEXIS 28613, 2006 WL
1295494, *5-6 ( S.D. Tex. May 10, 2006) ; Badgett v. Federal Express Corp.,
378 F. Supp. 2d 613 ( M.D.N.C. 2005) ; Fink v. Guardsmark, LLC, No. CV 03-
1480-BR, 2004 U.S. Dist. LEXIS 16970, 2004 WL 1857114, at *1 ( D. Or. Aug.
19, 2004) ; J ohnson v. DaimlerChrysler Corp., No. C.A. 02-69 GMS, 2003 WL
1089394, at *1 ( D. Del. Mar. 6, 2003) .

Pat t ern or Pract ice Suit s Time Limit at ions:

In EEOC v. Kaplan Higher Education Corp., 2011 U.S. Dist. LEXIS 50035 ( N.D.
Ohio May 10, 2011) , District J udge Patricia A. Gaughan held that the time
limitations of Section 706( e) of Title VII apply to pattern or practice suits under
Section 707. The Court rejected the reasoning of EEOC v. L.A. Weight Loss,
509 F. Supp. 2d 527 ( D. Md. 2007) and EEOC v. Sterling J ewlers, Inc., 2010
U.S. Dist. LEXIS 649 ( W.D.N.Y. J an. 6, 2010) .

Summary J udgment :

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In Pye v. Nu Aire, Inc., 2011 U.S. App. LEXIS 12226 ( 8th Cir. J une 17, 2011) , a
former employee appealed the district courts grant of summary judgment in
favor of the former employer on the employees claims of racial discrimination,
hostile work environment, and termination as a result of retaliation, in violation
of Title VII and Minnesota state law. The Eighth Circuit affirmed the summary
judgment ruling in connection with the hostile work environment claim because,
even accepting the former employees version of events, there was only a one-
time inappropriate racial comment made by a non-supervisor, and which was not
directed at the employee. Similarly, summary judgment was upheld as to the
former employees race discrimination claim, because the former employee
didnt show any circumstances that gave rise to a reasonable inference of racial
discrimination, whether in connection with the terms and conditions of his
employment, or in connection with the former employers decision to fire him.
However, the Eighth Circuit reversed the summary judgment decision in relation
to the retaliation claim, because the former employee did submit evidence
which suggested that his termination was a direct result of his complaint of
racial discrimination, and his suggestions of remedies, prompted by the
investigators questions. The Court held that it was for the jury to decide
whether the former employee was fired in retaliation for his engaging in
protected conduct, or whether he instead was terminated because the former
employer believed that he was engaging in extortion. The court noted that:

There is no discrimination case exception to the application of
summary judgment, which is a useful pretrial tool to determine
whether any case, including one alleging discrimination, merits a
trial. Torgerson v. City of Rochester, _ _ _ _ F.3d _ _ _ _ , 2011 U.S.
App. LEXIS 10938, 2011 WL 2135636, at *8 ( 8th Cir. J une 1,
2011) ( en banc) ( citations omitted) . Although employment
discrimination cases are often fact intensive and dependant on
nuance in the workplace, they are not immune from summary
judgment. Trierweiler v. Wells Fargo Bank, 639 F.3d 456, 2011
WL 1327991, at *3 ( 8th Cir. 2011) ( quoting Fercello, 612 F.3d at
1077) . If there is no dispute of material fact and reasonable
fact finders could not find in favor of the nonmoving party,
summary judgment is appropriate. Id. ( quoting another source) ;
see also Smith v. Fairview Ridges Hosp., 625 F.3d 1076, 1082 -83
( 8th Cir. 2010) ( [ N] o separate summary judgment standard exists
for discrimination or retaliation cases and . . . such cases are not
immune from summary judgment.)
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Whet her Oral Not ice of Right t o Sue by t he EEOC is Sufficient:

In DeTata v. Rollprint, 2011 U.S. App. LEXIS 583 ( 7th Cir. J an. 12, 2011) , the
Seventh Circuit, J udge Dianne Wood writing for the panel, held that a telephone
call between the EEOC and the charging party did not satisfy the notice-of-
right-to-sue requirement of 706( f) ( 1) of Title VII. The district court had
dismissed plaintiffs complaint because of plaintiffs telephone call with EEOC
more than 90 days before plaintiff sued, in which the EEOC advised plaintiff that
a right-to-sue had been sent to plaintiff, but had been returned to EEOC as
undeliverable. Another notice-to-sue was mailed to plaintiff and received by
plaintiff within the 90 day period preceding the filing of suit.

PLEADING

False Syllogism:

In Zucker v. Five Towns College, 2010 U.S. Dist. LEXIS 85441 ( E.D.N.Y. Aug. 18,
2010) , and in Ochei v. The Mary Manning Walsh Nursing Home Co., Inc., 2011
U.S. Dist. LEXIS 20542 ( S.D.N.Y. Mar. 1, 2011) , both courts issued favorable
decisions to the defendant employers on motions to dismiss. In Zucker, J udge
Seybert held that in order to survive a motion to dismiss, a plaintiff is required
to plead concrete facts demonstrating that the employment decision was
motivated by a discriminatory animus and further held that being replaced by
someone outside of plaintiffs protected class did not, standing alone, state a
claim:
[ I] f such barebones allegations sufficed to state a claim, then any
time an ADEA-covered employer terminated an employee over age
forty, the employer would be unable to replace that employee with
someone younger without exposing itself to potential liability for age
discrimination. And Defendants similarly argue, correctly noting that
every employee is a member of multiple protected classes. Thus,
unless a terminated employee is being replaced by a virtual clone,
his/her replacement will almost certainly be outside of one of the
Plaintiffs protected classes ( e.g., could be younger and/or a different
gender, race, religion, national origin) . The Court agrees with this
reasoning. And the Court has no desire to abrogate [ Federal Rule of
Civil Procedure] 8s gate-keeping function in employment
discrimination cases, enabling nearly every fired employee to subject
his employer to burdensome, expensive discovery.
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In Ochei, J udge McMahon rejected the false syllogism that a decision to
terminate someones employment necessarily flows from his/her protected
class. J udge McMahon held that the complaint must plead specific facts
demonstrating the causal connection between the adverse action and the
protected class:
Where there is no reason to suspect that an employers actions had
anything to do with membership in a protected class, other than
plaintiffs bald assertion that she was a member of such a class, and
the people who made decisions about her employment were not, no
claim is stated.
***
To protect employers from precisely this sort of untenable situation,
naked assertions by plaintiff that some protected demographic factor
motivated an employment decision, without a fact-specific allegation
of a causal link between defendants conduct and the plaintiffs
membership in a protected class, are simply too conclusory to
withstand a motion to dismiss.



Iqbal and Twombly Plausibilit y Pleading St andard Reject ed by St at e
Supreme Court :

The Washington State Supreme Court in an en banc unanimous opinion issued
on J une 24, 2010, in McCurry v. Chevy Chase, 2010 Wash. LEXIS 534 ( Wash.
J une 24, 2010) , refused to adopt the Supreme Courts plausibility pleading
standard set forth in its Bell Atlantic Corp. v. Twombly, 550 U.S. 544 ( 2007)
and Ashcroft v. Iqbal, _ _ U.S. _ _ , 129 S. Ct. 1937 ( 2009) decisions. In doing
so, it stated as follows:
The new Fed. R. Civ. P. 12( b) ( 6) standard [ under Twombly and Iqbal]
effectively reads plausible into the rule, as follows: failure to state a
[ plausible] claim upon which relief can be granted. This adds a determination
of the likelihood of success on the merits, so that a trial judge can dismiss a
claim, even where the law does provide a remedy for the conduct alleged by the
plaintiff, if that judge does not believe it is plausible the claim will ultimately
succeed.

The Supreme Court' s plausibility standard is predicated on policy determinations
specific to the federal courts. . . . Neither party has shown these policy
determinations hold sufficiently true in the Washington trial courts to warrant
such a drastic change in court procedure.
Nor has either party here addressed countervailing policy considerations. . . .

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Currently this court lacks the type of facts and figures ( specific to the
Washington trial courts) that were presented to, and persuaded, the United
States Supreme Court to alter its interpretation of Fed. R. Civ. P. 12( b) ( 6) . . . .

Even if such facts and figures had been presented, this court would be hesitant
to effectively rewrite [ Washington Civil Rule] 12( b) ( 6) based on policy
considerations. The appropriate forum for revising the Washington rules is the
rule-making process. This process permits policy considerations to be raised,
studied, and argued in the legal community and the community at large.
Thanks to the Constitutional Law Prof Blog for calling this interesting and
important decision to our attention.
EVIDENCE / PROOF

Evidence:

In Ahuluwalia v. Hamilton Crossing Animal Hosp., P.C., 2011 U.S. Dist. LEXIS
51480 ( S.D. Ind. May 13, 2011) , the Court evaluates the admissibility of prior
bad acts under a four part test. Specifically, the Court noted:

The Seventh Circuit evaluates the admissibility of prior bad acts under a four
part test. The evidence must be relevant to an issue other than the defendant' s
propensity to commit the crime charged, the other act must be similar enough
and close enough in time to be relevant, there must be sufficient evidence that
the defendant committed the similar act, and the probative value of the
evidence must not be substantially outweighed by the danger of unfair
prejudice. U.S. v. Hurn, 496 F.3d 784, 787 ( 7th Cir. 2007) ; see United States v.
Puckett, 405 F.3d 589, 596 ( 7th Cir. 2005) . [ *5] Further, under Fed.R.Evid.
404( b) other-acts evidence can be relevant to prove motive or intent in a
discrimination or retaliation case. Bledsoe v. Potter, 200 Fed. Appx. 604, 2006
WL 2883041, at *3 ( 7th Cir. 2006) ( unpublished opinion) .

Implicit Bias:

J erry Kang and Kristin Lane, Seeing Through Colorblindness: Implicit Bias
and the Law, 58 UCLA L. Rev. 465 ( 2010) .

Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in J ury
Selection: The Problems of J udge-Dominated Voir Dire, the Failed Promise
of Batson, and Proposed Solutions, 4 Harv. L. & Poly Rev. 149 ( Winter,
2010) .

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Patrick S. Shin, Liability for Unconscious Discrimination? A Thought
Experiment in the Theory of Employment Discrimination Law, 62 Hastings
L.J . 67 ( Nov. 2010) .

Natalie Bucciarelli Pedersen, A Legal Framework for Uncovering Implicit
Bias, University of Cincinnati Law Review, Forthcoming, Drexel University
Earle Mack School of Law Research Paper No. 2010-A-16, available at
http://papers.ssrn.com/sol3/papers.cfm? abstract_ id=1701966 ( Posted
Nov. 3, 2010) .

Project Implicit, a study on implicit bias run by Harvard University, the
University of Virginia, and the University of Washington, accessible at
https://implicit.harvard.edu/implicit/ ( last accessed J une 21, 2011) .

Professor J erry Kang of the UCLA School of Law, on his research website,
has posted nearly 30 different papers that he has written over the past
20 years on implicit bias. They can be found at
http://jerrykang.net/Research/ ( last accessed J une 21, 2011) .
COMPUTER FRAUD AND ABUSE ACT

Comput er Fraud and Abuse Act :

In Lee v. PMSI, Inc., 2011 U.S. Dist. LEXIS 52828 ( M.D. Fla. May 6, 2011) , the
District Court held that a CFAA violation only occurs where a computer system
is damaged or one uses a computer to obtain restricted information. In Lee, the
employer argued that a former employee who had checked her Verizon personal
email account, her Facebook page, and news webpages on a work computer had
thereby violated the CFAA, relying on United States v. Rodriguez, 628 F.3d
1258 ( 11th Cir. 2010) , where the court found that the government employee
there had used the computer to obtain sensitive personal information. The
court in Lee found Rodriguez to be readily distinguishable.
USERRA

USERRA Host ile Work Environment:

In Carder v. Continental Airlines, 636 F.3d 172 ( 5th Cir. Mar. 22, 2011) , the
court held that the statutory language of USERRA did not cover claims for
harassment, noting differences between the language of USERRA prohibiting the
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denial of benefits and Title VIIs language which prohibits discrimination with
respect to conditions of employment. The court concluded that the USERRA
language would not permit a hostile work environment claim absent a denial of a
tangible benefit. The Court did note that two Circuits have recognized
constructive discharge claims under USERRA. See, e.g., Wallace v. City of San
Diego, 479 F.3d 616 ( 9th Cir. 2007) ; Knowles v. City Corp. Mortgage, Inc., 142
F.3d 1082 ( 8th Cir. 1998) . Thus, even after Carder, it would appear that a
constructive discharge claim might proceed under USERRA where an employee
could show that his working conditions became so intolerable that a reasonable
person would feel compelled to resign. Further, the court noted that the term
benefits of employment under USERRA is quite broad and a plaintiff might still
have a claim if they could demonstrate that they lost such benefits because of
their employers actions.
COMMUNICATIONS DECENCY ACT

Communicat ions Decency Act Blog Post:

In Mealer v. GMAC Mortgage, LLC , 2011 U.S. Dist. LEXIS 31776 ( D. Ariz. Mar.
25, 2011) , the Court held that an alleged defamatory statement made by a
General Motors engineer on GMs website was entitled to immunity under the
Communications Decency Act of 1996, finding that GMAC Mortgage qualified as
an interactive computer service. See also Kruska v.

Perverted J ustice Foundation Incorporated.Org, 2011 U.S. Dist. LEXIS 36832
( D. Ariz. Apr. 5, 2011) ( blog operator who allegedly viewed and approved a
defamatory comment was immune from liability under Section 230 of the
Communications Decency Act) .
PRIVACY ACT

Privacy Act:

The Sixth Circuit in Shearson v. Dept of Homeland Security, 638 F.3d 498 ( 6th
Cir. Apr. 21, 2011) held that an agency may exempt itself from the Privacy
Acts civil remedies provision ( 5 U.S.C. 552A( g) ) only when section 552A( j)
permits the information to be exempted. Accord Doe v. FBI, 936 F.2d 1346,
1352 ( D.C. Cir. 1991) ( holding that agency cannot escape liability for violating
non-exemptable Privacy Act obligations simply by exempting itself from the
Acts civil-remedy provisions; rather, an agency may exempt a system of
records from the civil-remedies provision only to the extent that the underlying
substantive duty is exemptable under 552a( j) ). The Fourth, Seventh, and
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Ninth Circuits, in contrast, permit a federal agency to exempt material from the
act if the records system was exempted by properly issued rules. Alexander v.
United States, 787 F.2d 1349, 1351-52 ( 9th Cir. 1986) ( concluding that
because the agency had promulgating rules exempting the record system at
issue from 552a( g) ( 1) , the plaintiff was barred from taking advantage of the
civil remedies provided by the Privacy Act) ; Kimberlin v. Dept. of J ustice, 788
F.2d 434, 436 n.2 ( 7th Cir. 1986) ( stating that although information system
can be exempted, the exemption did not apply because the agency had not
stated reasons for the exemption in its exempting rule) ; Ryan v. Dept. of
J ustice, 595 F.2d 954, 958 ( 4th Cir. 1979) ( recognizing that an agency may
exempt a system of records, but concluded that the agency had not properly
done so for the system of records at issue) .
IIED

Int ent ional Inflict ion of Emot ional Dist ress:

In Durham v. McDonalds Restaurants of Oklahoma, Inc., 2011 OK 45, 2011
Okla. LEXIS 47 ( Okla. May 24, 2011) , the Oklahoma Supreme Court held that an
IIED claim of a teenage restaurant employee who alleged that his supervisor
cursed at him while denying his request to take prescription anti-seizure
medication at work had a triable claim even though a federal court had
dismissed his ADA claim. The court found that the federal district courts
characterization of the managers behavior as not severe was dicta that did
not control whether the managers conduct was extreme and outrageous for
the purposes of the Oklahoma IIED claim.
LOSS OF CONSORTIUM


Tit le VII Loss of Consort ium Claim Reject ed:

In Barker v. Halliburton, 2011 U.S. App. LEXIS 12696 ( 5th Cir. J une 23, 2011) ,
the Fifth Circuit held that the Title VII plaintiff may not seek loss of consortium
damages, finding such damages to not be cognizable under the Act.
DUE PROCESS

Due Process One Biased Member of Seven Member Panel Deprives
Part y of Due Process, Even Though Panel s Decision Was Unanimous:

In Sullivan v. Elsmere, 2011 Del. LEXIS 307 ( Del. J une 17, 2011) , the Delaware
Supreme Court, in deciding an issue of first impression, held that when one
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member of a seven-member panel demonstrates a prima facie bias, and where
that panel acts without removing the biased member of the panel, a vote by the
panel can violate a partys due process rights even where the panels vote is
unanimous. For more on this decision, see:

Francis Pileggi, Supreme Court Decides Due Process is Violated by Biased
Member of Panel Despite Unanimous Vote, Delaware Corporate & Commercial
Litigation Blog ( J une 26, 2011) ,
http://delawarelitigation.com/2011/06/articles/delaware-supreme-court-
updates/supreme-court-decides-due-process-is-violated-by-biased-member-of-
panel-despite-unanimous-vote/.
ARBITRATION

Tent h Circuit follows Gardner-Denver, finding t hat 14 Penn Plaza
does not t rump t he plaint iff:

In Mathews v Denver Newspaper Agency LLP, 2011 U.S. App. LEXIS 11454
( 10th Cir. May 17, 2011) , a panel of the Tenth Circuit issued its revised opinion.
Its earlier opinion of March 16, 2011 is found at 2011 U.S. App. LEXIS 5142.
J udge Murphy, writing for the panel, concludes that plaintiff' s statutory
employment discrimination and retaliation claims may be litigated despite a prior
ruling by an arbiter on plaintiffs contractual claims which were coterminous with
his statutory claims.
The collective bargaining agreement provides as follows:
The Employer and the Union acknowledge continuation of their policies of no
discrimination against employees and applicants on the basis of age, sex, race,
religious beliefs, color, national origin or disability in accordance with and as
required by applicable state and federal laws.
Plaintiff was demoted and grieved the demotion. Apparently, the initial
grievance referenced state and federal discrimination and retaliation laws. That
initial grievance was amended to remove any reference to said statutes, and the
question of discrimination was stated, by agreement of the parties, to the
arbiter as follows: [ D] id GRIEVANTS demotion violate contractual provisions
prohibiting discrimination? The arbiter ruled against Mathews and, thereafter,
Mathews sued under Title VII among other statutes. The district court found
that the arbiters decision was preclusive, relying on the Supreme Courts
decision in 14 Penn Plaza LLC v. Pyette, 129 S. Ct. 1456 ( 2009) . The district
courts ruling can be found at 2009 U.S. Dist. LEXIS 37697 ( D. Colo. May 4,
2009) . The soTenth Circuit reversed, holding the fact that Mathews
contractual rights and statutory rights were coterminous is of no moment: As
the Supreme Court has recently reaffirmed, [ b] ecause the collective-bargaining
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agreement gave the arbitrator authority to resolve only questions of
contractual rights, his decision could not prevent the employee from brining
the Initial Title VII claim in federal court regardless of whether certain
contractual rights are similar to, or duplicative of, the substantive rights
secured by Title VII. Fourteen Penn Plaza, 129 S.Ct. at 1467 ( emphasis added)
( quoting Alexander v. Gardner-Denver Co., 415 U.S. 36 ( 1974) ) .
The Tenth Circuit panel went on to affirm summary judgment on plaintiffs
discriminatory demotion claim, finding that plaintiff was judicially estopped from
being able to establish his qualifications for the position in question. The court,
applying Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. ( 1999) , found that
plaintiffs unequivocal testimony in a SSA disability milieu that he was totally
disabled was a paradigmatic case for judicial estoppel. For a different take on
this issue, see Solomon v. Vilsack, 628 F.3d 555 ( D.C. Cir. 2010) .
In contrast, the court denied summary judgment on plaintiffs retaliatory
demotion claim, refusing to adopt the strong evidence standard articulated by
the Second Circuit in Collins v. N.Y. City Transit Authority, 305 F.3d 113, 119
( 2d Cir 2002) wherein that court held that for a plaintiff to survive a motion for
summary judgment following an adverse decision from an arbiter, the plaintiff
must present strong evidence that the decision was wrong as a matter of fact
- e.g. new evidence not before the tribunal or that the impartiality of the
proceeding was somehow compromised. Instead of adopting the Second
Circuits strong evidence standard, the Tenth Circuit rejected such a per se
standard for a case-by-case evaluation, including an evaluation of the degree
of procedural fairness in the arbitral forum, adequacy of the record with respect
to the issue of discrimination, and the special competence of particular
arbitrators. Barrentine v. Arkansas-Best Freight Sys, Inc., 450 U.S. 728, 743
n.22 ( 1981) ( quoting Gardner-Denver 450 U.S. at 60 n.21) .
The petition for rehearing filed by defendant Denver Newspaper Agency LLP
was directed at the ongoing debate regarding the elements of a prima facie
case of retaliation. The Tenth Circuit followed the three-part showing required
by Timmerman v. U.S. Bank, 483 F.3d 106, 1122-23 ( 10
th
Cir. 2007) which
requires a showing that ( 1) plaintiff engaged in protected activity; ( 2) plaintiff
suffered an adverse employment action;* ( 3) there is a causal connection
between the protected activity and the adverse action. The debate on rehearing
was whether in a retaliation case, the Tenth Circuit panel would reject
Timmerman and adopt a standard that some circuits have used which requires,
in addition to the three elements above, that plaintiffs demonstrate that they
are qualified for the position at issue, or, if already employed, [ had] met the
employers legitimate work expectations. Volosek v. Wis. Dept of Agric., Trade
& Consumer Prot., 344 F.3d 680, 692 ( 7
th
Cir. 2003) . See also contrasting
decisions on this question from the Fifth Circuit: Holtzclaw v. DSC Commcns
Corp., 255 F.3d 254, 259-60 ( 5
th
Cir. 2001) ( finding that qualification for the
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job is an element of a prima facie case of ADEA retaliation) ; EEOC v. Dunbar
Diagnostic Servs., Inc., 92 F. Appx 83, 84-85 ( 5
th
Cir. 2004) ( refusing to
require plaintiff to demonstrate qualification for the position as part of prima
facie case in a wrongful discharge case) , the appellees petitioned panel for
rehearing and appellants response to same contain citations to and discussion
of all of the many court decisions that have addressed this cutting edge debate.
J udge Murphy, who wrote for the panel, was joined by J udges McKay and
OBrien.
For more discussion on this topic, see Garlands Digest, Paul Mollicas Daily
Developments in EEO Law, Nelson Carys post at Vorys on Labor, and Richard
Renner at the Whistleblowers Protection Blog. For a discussion of the District
Courts ruling see the Workplace Prof Blog.

*While the court described Timmerman as requiring an adverse employment
action, undoubtedly the court merely used the incorrect phraseology, and
would require adherence to the Supreme Courts holding in Burlington Northern
& Santa Fe Ry. v. White, 548 U.S. 53 ( U.S. 2006) where the court requires in a
retaliation case, not an adverse action, but rather a materially adverse action.
In Shaw v. Tulsa Dynaspan Arrow Concrete, 2001 WL 263205 at *4 ( 10
th
Cir.
J an. 28, 2001) , the Tenth Circuit held that the prima facie case of retaliation
requires a showing that a reasonable employee would have found the challenged
action materially adverse, quoting Haynes v. Level 3 Communications, LLC, 456
F.3d 1215, 1228 ( 10
th
Cir. 2006) .

CRIMINAL BACKGROUND CHECKS

Criminal Background Checks:
According to the National Employment Law Project, roughly 65 million people
have an arrest or conviction that shows up in a routine criminal background
check, and a NELP report entitled 65 Million Need Not Apply: The Case for
Reforming Criminal Background Checks for Employment finds numerous
examples in which major employers preclude consideration of anyone with a
criminal record. The report is available here: http://www.nelp.org/page/-
/65_ Million_ Need_ Not_ Apply.pdf? nocdn=1.
EMPLOYEE SAFETY

Dist ract ed Driving: OSHA Expanding General Dut y Clause t o Include
Dist ract ed Driving:
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Assistant Secretary of Labor for OSHA, David Michaels, recently stated: When
OSHA receives a credible complaint that an employer requires texting while
driving or who organizes work so that texting [ while driving] is a practical
necessity, we will investigate and where necessary issue citations and penalties
to end this practice.

A Pew Research poll indicates that some 27% of all adults admit to texting while
driving.
Given the breadth of the comments made by the Assistant Secretary, those
employers whose employees travel extensively by automobile, should consider
the following:

Installation of hands-free devices in employees automobiles
Explicit written instructions not to text while driving
Explicit written directions to pull off the road if one needs to send a text
message
Include all such instructions in employee handbooks
Transmit such instructions to employees when they receive company-
issued cell phones
Discipline employees who violate the policy
Incorporate these instructions into training sessions

Tip of the hat to the New York Labor & Employment Law Report for bringing
this to our attention.
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ALI-ABA Course oI Study
Current Developments in Employment Law:
The Obama Years at Mid-Term
July 28 - 30, 2011
Santa Fe, New Mexico
Supplements to Cutting Edge Employment Law Issues
By
Robert B. Fitzpatrick
Robert B. Fitzpatrick, PLLC
Washington, D.C.
2011 Robert B. Fitzpatrick, PLLC.
All Rights Reserved.
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DISCLAIMER OF ALL LIABILITY AND
RESPONSIBILITY

THE INFORMATION CONTAINED HEREIN IS BASED
UPON SOURCES BELIEVED TO BE ACCURATE AND
RELIABLE INCLUDING SECONDARY SOURCES.
DILIGENT EFFORT WAS MADE TO ENSURE THE
ACCURACY OF THESE MATERIALS, BUT THE
AUTHOR ASSUMES NO RESPONSIBILITY FOR ANY
READERS RELIANCE ON THEM AND ENCOURAGES
READERS TO VERIFY ALL ITEMS BY REVIEWING
PRIMARY SOURCES WHERE APPROPRIATE AND BY
USING TRADITIONAL LEGAL RESEARCH
TECHNIQUES TO ENSURE THAT THE INFORMATION
HAS NOT BEEN AFFECTED OR CHANGED BY
RECENT DEVELOPMENTS.

THIS PAPER IS PRESENTED AS AN INFORMATIONAL
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IS IT INTENDED TO BE USED) FOR PURPOSES OF
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OR RECOMMEND ANY TRANSACTION OR MATTER
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INFORMATION CONTAINED IN THIS PAPER MAY
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BECOME OUTDATED. IN NO EVENT WILL THE
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FROM AND/OR RELATED TO THE USE OF THIS
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Table of Cont ent s

Sexual Harassment 1
FLSA Effect of Release of FCA Claims Against Employer
2
Disparagement 4
Evidence in Mot ions t o Dismiss 4
FLSA Offers of J udgment 4
FLSA Repeat ed Violat ions 5
Discriminat ion Alcoholic Employee 6
Discriminat ion 6
Recent EEOC Decisions 7
Second Circuit Applies Ricci 9
Pregnancy Discriminat ion Encompasses Fert ilit y Treat ment
10
EEOC subpoena upheld 11
Non-Compet e Clause in Lease Agreement Unenforceable
12
Complaint Regarding Dress Code Found to be Protected Activity by
NLRB 13
Interest on NLRB Awards 13
False Claims Act 14
Statute of Limitations in 3730( h) Retaliation Actions 14
FERA Retroactivity 14
Collective Knowledge J ury Instruction 15
Causat ion 15
Application of Gross to Two Unlawful Reasons 15
Application of Gross to Federal Sector ADEA 16
Application of Gross to Title VII Mixed-Motive and Motivating Factor
Retaliation Claims 16
Rehabilitation Act: Causation Analysis After Gross: Request for
Current Medical Information 17
Evident iary and Wit ness-Relat ed Issues 17
Spoliation of Evidence 17
Statistical Evidence 18
After-Acquired Evidence Defense: 18
Expert Witness Fees 19
Class Act ions 19
Conversion of Company Propert y 20
Employee Removal of Documents from the Workplace 20
Background Checks 21
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Criminal Background Checks 21
Social Media Issues 24
Employer May be Liable for Impersonating Employee on Facebook
and Twitter 24
Training Programs 24
Failure to Follow Training Program is Not Breach of Contract 24
FRB Brokerage / Commission Payrolls 24
Accusing a Former Employee of St ealing Trade Secret s
May Const it ut e Unlawful Ret aliat ion 25


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Supplement s t o Cut t ing Edge Employment Law
Issues
by Robert B. Fitzpatrick
Sexual Harassment

Hoyle v. Freightliner, LLC, 2011 U.S. App. LEXIS 6628 ( 4
th

Cir. April 1, 2011) . The Fourth Circuit vacated a grant of summary
judgment by the District Court, and engaged in an extended
analysis of sexual harassment, holding as follows:
o Because the workplace environment is one of the terms,
conditions, or privileges of employment, Title VII creates a cause
of action for employees forced to work in a hostile workplace.
( quoting Meritor Savs. Bank v. Vinson, 477 U.S. 57, 64-67, 106 S.
Ct. 2399, 91 L. Ed. 2d 49 ( 1986) ) .
o In order to make out a sexual harassment hostile work
environment claim, plaintiffs must show that the offending
conduct ( 1) was unwelcome, ( 2) was because of her sex, ( 3) was
sufficiently severe or pervasive to alter the conditions of her
employment and create an abusive working environment, and ( 4)
was imputable to her employer.
o Regarding the second prong of the sexual harassment hostile
work environment analysis, an employee is harassed because of his
or her sex if, but for the employees gender, he or she would not
have been the victim of discrimination. ( quoting Smith v. First
Union Nat' l Bank, 202 F.3d 234, 242 ( 4th Cir. 2000) ) .
o Regarding the third prong of the sexual harassment hostile
work environment analysis, the question of whether harassment is
sufficiently severe or pervasive is quintessentially a question of
fact. ( quoting Paroline v. Unisys Corp., 879 F.2d 100, 105 ( 4th
Cir. 1989) ) .
o [ I] n a case where an employee is sexually harassed by a
coworker, the employer may be liable in negligence if it knew or
should have known about the harassment and failed to take
effective action to stop it. Hoyle at *28 ( citing Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 759, 118 S. Ct. 2257, 141 L. Ed. 2d
633 ( 1998) ( noting that " [ n] egligence sets a minimum standard
for employer liability under Title VII" ) ) . Further, [ u] nder this
standard, an employer may be charged with constructive knowledge
of coworker harassment when it fails to provide reasonable
procedures for victims to register complaints In addition, the
distribution of an anti-harassment policy provides compelling proof
that the company exercised reasonable care in preventing and
correcting harassment. Hoyle at *28-29 ( citing Barrett v. Applied
Radiant Energy, 240 F.3d 262, 266 ( 4th Cir. 2001) ) .
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o To sustain her claim, a plaintiff must show by a
preponderance of the evidence that the policy was either adopted
or administered in bad faith or that it was otherwise defective or
dysfunctional.

Edwards v. Murphy-Brown, 2011 U.S. Dist. LEXIS 4088 ( E.D.
Va. J anuary 4, 2011) . In analyzing the first prong of the sexual
harassment hostile work environment analysis, the District Court
held that whether conduct is unwelcome must be determined from
the plaintiff' s subjective perspective. ( citing Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21-22 ( 1993) ( stating if the victim does not
subjectively perceive the environment to be abusive, the conduct
has not actually altered the conditions of the victim' s employment,
and there is no Title VII violation.) ) . The Court further held that
the final three elements are made up of objective components
based on a reasonable person standard. ( quoting Pueschel v.
Peters, 577 F.3d 558, 565 ( 4th Cir. 2009) ) .

Mosby-Grant v. City of Hagerstown, 630 F.3d 326 ( 4
th
Cir.
December 10, 2010) . In reversing a District Court grant of
summary judgment to the employer, the Fourth Circuit held that a
factual record that demonstrates that the workplace was
contaminated with explicit and derogatory references to women
provides an adequate basis for a plaintiff to show that the
harassment occurred because of her gender. ( quoting Smith v.
First Union Nat' l Bank, 202 F.3d 234, 242 ( 4th Cir. 2000) ) . In
reaching its conclusion, the Court considered whether the offensive
conduct was severe or pervasive enough that it unreasonably
interfered with the employee' s work performance.

EEOC v. Cromer Food Services, Inc., 2011 U.S. App. LEXIS
4279, *13 ( 4
th
Cir. March 3, 2011) . Regarding the fourth prong of
the sexual harassment hostile work environment analysis, the
Fourth Circuit held that the offending conduct is imputable to the
plaintiffs employer if the employer knew or should have known of
the harassment and failed to take appropriate actions to halt it.

False Claims Act Effect of Release of FCA Claims Against
Employer

U.S. ex rel. McLean v. County of Santa Clara, 2008 U.S. Dist.
LEXIS 41003 ( N.D. Cal. 2008) . In a qui tam action, the complaint
alleged that defendants invented fictional children for the purpose
of overbilling the State of California. In denying the defendants
motion to dismiss and motion for summary judgment, the District
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Court held that permitting a prefiling release when the government
has neither been informed of, nor consented to, the release would
undermine this incentive, and therefore, frustrate one of the central
objectives of the False Claims Act.

U.S. ex rel. Ritchie v. Lockheed Martin Corp, 558 F.3d 1161;
2009 U.S. App. LEXIS 5269 ( 10
th
Cir. 2009) . The relator former
employee brought a qui tam action against the defendant alleging
fraud in relation to defendants billing practices under federal
contracts. The District Court granted summary judgment based on
releases signed by the relator prior to filing suit. The Tenth Circuit
affirmed, defendant appealed a conviction in the District Court for
the Western District of Missouri of social security benefits fraud and
theft of government money. The Eighth Circuit affirmed, stating as
follows:
o When there is a release preceding the filing of the qui tam
action, as in this case, no action has been filed, so there is neither
an action to dismiss nor a judge to consent to the agreement. As a
consequence, the statute only governs the enforceability of
settlement agreements made after the filing of a qui tam claim.
o The goal of the FCA is to prevent and rectify fraud
perpetrated by government contractors Settlements of qui tam
claims directly implicate this federal interest in combating fraud.
When an individual prevails in a qui tam lawsuit, she is only entitled
to a percentage of the amount recovered on behalf of the
government. If the individual signs a general release in exchange for
money, however, she will probably keep the entire amount. The
contractor and the would-be relator might settle a qui tam case for
less than the amount recoverable on behalf of the government but
more than the prospective relator' s share of the recovery had a qui
tam action been filed. Thus, there is a federal interest in protecting
the federal government' s right to recover under the FCA. ( internal
citations omitted) .
o [ Here] , the interest in supplementing federal enforcement
does not outweigh the federal interests served by enforcement of
settlements following disclosure of fraud allegations to the
government, namely the interest in disclosure of fraud allegations
and the interest in encouraging settlement. The releases in this
case are therefore enforceable.

U.S. v. Purdue Pharma, L.P., 600 F.3d 319 ( 4
th
Cir. 2010) . A
plaintiff relator sued the defendant former employer under the FCA
alleging that the defendant fraudulently marketed a drug. The
District Court held that the relators pre-filing release did not bar
suit, but dismissed the suit for failure to plead with particularity.
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Both sides appealed. The Fourth Circuit held that the District Court
erred in not enforcing the release, stating that [ w] hen there is a
release preceding the filing of the qui tam action, as in this case, no
action has been filed, so there is neither an action to dismiss nor a
judge to consent to the agreement. As a consequence, the statute
only governs the enforceability of settlement agreements made
after the filing of a qui tam claim. ( quoting U.S. ex rel. Ritchie v.
Lockheed Martin Corp., 588 F.3d 1161, 1168 ( 10
th
Cir. 2009) ) .

Disparagement

Sohal v. Michigan State University Board of Trustees, 2011
Mich. App. LEXIS 915 ( Mich. Ct. App. May 17, 2011) . In a
separation agreement, the parties agreed not to knowingly
disparage each other. The plaintiff subsequently filed suit, alleging
that the defendant conveyed information to potential employees
that disparaged the plaintiff. The Court held that the term
disparage should be given its ordinary and plain meaning, which,
according to the American Heritage dictionary, is ( 1) To speak of
in a slighting or disrespectful way; belittle. ( 2) To reduce esteem or
rank, and according to Random House Webster' s College
Dictionary is 1. to speak of or treat slightingly. 2. to discredit;
lower the estimation of. Ultimately, the Court held that by the
plain meaning of disparage, the defendants did not knowingly
disparage the plaintiff in violation of the separation agreement.

J ason Shinn, Does Your Employment Separation Agreement
Mean What You Think It Means? Michigan Court Addresses Meaning
of Disparagement, Michigan Employment Law Advisor, J une 21,
2011, available at:
http://www.michiganemploymentlawadvisor.com/terminating-the-
employment-relationship/does-your-employment-separation-
agreement-mean-what-you-think-it-means-michigan-court-
addresses-mean/.

Evidence in Mot ions t o Dismiss

Hillbroom v. PricewaterhouseCoopers, LLP, No. 10-CV-92
( D.C. April 7, 2011) . The D.C. Court of Appeals reversed and
remanded the dismissal of a lawsuit for professional negligence. In a
footnote, the Court stated as follows:
o The exhibits that appellants attached to their opposition to
the motion to dismiss and the factual assertions in appellants
various briefs are not, of course, evidence, and we do not take
them as proven. But a plaintiff is free, in defending against a
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motion to dismiss, to allege without evidentiary support any facts
he pleases that are consistent with the complaint, in order to show
that there is a state of facts within the scope of the complaint that
if proved ( a matter for trial) would entitle him to judgment.
( quoting Early v. Bankers Life & Cas. Co., 959 F.2d 75, 79 ( 7
th
Cir.
1992) ) .

FLSA Offers of J udgment

Simmons v. United Mortgage Co., 634 F.3d 754; 2011 U.S.
App. LEXIS 1189 ( 4
th
Cir. J anuary 21, 2011) . Plaintiff employees
filed a class action suit against defendant employer for violations of
the FLSA and the North Carolina Wage and Hour Act. The District
Court dismissed all of the plaintiffs claims, and the plaintiffs
appealed. At trial, when nine new plaintiffs opted into the suit,
defense counsel sent a letter to plaintiffs counsel offering full
relief to each plaintiff, including attorneys fees and taxable costs,
and promising to compensate plaintiffs fully upon receipt of an
affidavit detailing dates that overtime was worked the total hours
worked, and back pay due. The offer required a confidentiality
agreement, and acceptance within 5 days. The plaintiffs did not
accept the offer, and the defendant moved to dismiss, arguing that
the defendants attempt to satisfy the plaintiffs claims rendered
the case moot. The District Court agreed and dismissed, but the
Fourth Circuit reversed because the defendants offer was not an
offer of judgment in accordance with FRCP 68. The Fourth Circuit
stated that the fact that the offer required a confidentiality
agreement and an affidavit indicated that additional negotiations
were likely, and the issue was not final. In addition, the defendants
offer required a response within 5 days, rather than the 10 days
required by Rule 68.

Scott McIntyre, Picking Off FLSA Plaintiffs, Employment Class
Action Blog, February 21, 2011, available at:
http://www.employmentclassactionreport.com/flsa/picking-off-
flsa-plaintiffs/.


FLSA Repeat ed Violat ions

Figueroa v. Dist. of Columbia Metro Police Dept., 633 F.3d
1129; 2011 U.S. App. LEXIS 3168 ( D.C. Cir. February 11, 2011) .
Plaintiff police officers sued the defendant police department for
violations of the FLSA, alleging the defendant failed to calculate
their overtime based on enhanced pay owed to detective sergeants
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under D.C. law. The District Court dismissed the claims because
they were barred by the statute of limitations, but the D.C. Circuit
reversed in part because a separate cause of action accrued every
payday that overtime was not paid or calculated properly, and
because the plaintiffs claims were based on repeated violations of
the FLSA, some of which fell within the limitations period and some
of which did not.

Repeated Violations of FLSA Overtime Provisions Occurred
Each Time Detective Sergeants Received Deficient Paychecks;
Claims Not Time-Barred, Wolters Kluwer, available at:
http://www.employmentlawdaily.com/index.php/news/repeated-
violations-of-flsa-overtime-provisions-occurred-each-time-detective-
sergeants-received-deficient-paychecks-claims-not-time-barred/.

Discriminat ion Alcoholic Employee

Ames v. Home Depot U.S.A, Inc., 629 F.3d 665; 2011 U.S.
App. LEXIS 250 ( 7
th
Cir. J anuary 6, 2011) . A plaintiff former
employee was terminated for coming to work under the influence of
alcohol. The plaintiff sued for violations of FMLA and ADA, and the
District Court granted summary judgment for the defendant
employer. The Seventh Circuit affirmed, holding that the plaintiffs
alcoholism did not constitute a serious health condition under the
FMLA because the plaintiff did not receive inpatient care or
continuing treatment by a healthcare provider, and because the
plaintiff only checked into a hospital long after violating the
defendant employers substance abuse policy. Regarding her ADA
claim, the Fourth Circuit found that the plaintiffs alcoholism did not
substantially limit any of the plaintiffs major life activities, and thus
the plaintiff was not disabled within the meaning of the act.

Pat Murphy, Alcoholic Employee Cant Sue For Discrimination,
Lawyers USA Online, J anuary 12, 2011, available with subscription
at: http://lawyersusaonline.com/blog/2011/01/12/alcoholic-
employee-cant-sue-for-discrimination/.


Discriminat ion

EEOC v. Con-Way Freight, Inc., 622 F.3d 933; 2010 U.S. App.
LEXIS 19638 ( 8
th
Cir. 2010) . The plaintiff EEOC brought suit
claiming that the defendant failed to hire intervenor applicant
because of her race in violation of Title VII. The District Court
granted summary judgment for the employer, and the plaintiff
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appealed. The Eighth Circuit affirmed because the plaintiff failed to
establish a causal link between the alleged discriminatory animus
and the decision not to hire the applicant. In addition, the
defendant employer had an unwritten, but well established policy of
not hiring any person with a theft related criminal conviction, and
the plaintiff had two such convictions. Thus the employee would
not have been hired because she was not qualified for the position,
and plaintiff could not establish a prima facie case of discrimination.

Frances Rogers, Failure to Hire was not Racially Discriminatory
Where Employer had Established Policy Against Applicants With
Theft Convictions, California Public Agency Labor & Employment
Blog, J anuary 11, 2011, available at:
http://www.calpublicagencylaboremploymentblog.com/discriminati
on/failure-to-hire-was-not-racially-discriminatory/.

Recent EEOC Decisions

EEOC o/b/o Serrano, et al v. Cintas Corp., 2010 U.S. Dist.
LEXIS 18130 ( E.D. Mich. Mar. 2, 2010) . In a gender discrimination
case, the EEOC refused to identify the women it represented,
claiming they should only be named later in the proceedings. The
District Court disagreed, holding that the defendant employer
reasonably seeks to focus its attention upon the specific women
on whose behalf the EEOC intends to seek damages. The
information is relevant to the issues in controversy and the EEOC
has no principled reason to withhold it." The Cintas court relied on
EEOC v. CRST Van Expedited, Inc., 257 F.R.D. 513 ( N.D. Iowa
2008) , in which the EEOC similarly attempted to conceal who it
sought to represent. This strategy resulted in the EEOC being
sanctioned $4.5 million.

EEOC v. Evans Fruit Co. Inc., No. 10-CV-3033-LRS ( E.D.
Wash. Oct. 5, 2010) . The EEOC alleged that the defendant
employer created a hostile work environment for the female
plaintiffs, and claimed that employees of the defendant were
intimidating witnesses, including following them from the facility,
tracking their movements, and photographing witness meetings.
The EEOC sought, and the District Court granted emergency
injunctive relief, because while an injunction is an " extraordinary
remedy," it was appropriate given the evidence that the
government' s investigation would be compromised if the alleged
intimidation continued. For more information, see:

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o Melissa Wagner, Evans Fruit Sued for Sexual Harassment,
KIMATV.com, J une 25, 2010, available at:
http://www.kimatv.com/news/97200464.html.

o Evans Fruit Company Sued by EEOC for Sexual Harassment,
eBoss Watch, October 5, 2010, available at:
http://blog.ebosswatch.com/2010/10/evans-fruit-company-sued-
by-eeoc-for-sexual-harassment/.

EEOC v. Bloomberg L.P., 2010 U.S. Dist. LEXIS 92511
( S.D.N.Y. Aug. 31, 2010) . The EEOC brought suit against the
defendant employer for discrimination on the basis of sex and
pregnancy, and retaliation. The District Court dismissed the
retaliation claim because the EEOC failed to attempt to conciliate
claims before filing suit. Such a sanction is not typical, but the
Court noted that the EEOC sought $41 million to settle the matter,
but failed to explain how it arrived at that number. The District
Court then refused to dismiss the class claims based on
Defendants " scope of the investigation" defense, which could
expand what an employer is expected to appreciate as a class case
even though the employer does not have specific information as to
the extent of the EEOC' s investigation. For more information, see:

o Michael P. Maslanka, The Importance of Conciliation, Work
Matters, J anuary 7, 2011, available at:
http://texaslawyer.typepad.com/work_ matters/2011/01/before-
the-eeoc-sues-an-employer-it-must-seek-to-resolve-what-it-sees-as-
the-employers-violation-of-the-law-through-the-stat.html.

o Chris DAgnelo, Southern District of New York Dismisses
EEOCs Title VII Retaliatio Claim as Sanction for Failure to
Conciliate, Labor & Employment N.Y., November 11, 2010, available
at:
http://nysbar.com/blogs/LENY/2010/11/southern_district_ of_ ne
w_ york.html.

EEOC v. Kronos, Inc., 620 F.3d 287 ( 3d Cir. 2010) . Plaintiff
employee was not selected for a position with defendant based on
a test created by defendant. The plaintiff then brought a disability
discrimination claim. The EEOC sought testing information from the
defendant through a third party subpoena in an effort to prove the
tests disparate impact on disabled applicants, and expanded its
investigation to include race discrimination, though the charge had
not alleged race discrimination. The Third Circuit found that the
EEOCs request for race data constituted an impermissible fishing
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expedition, and denied the request, but it did allow the subpoena
as to the disability claim. For more information, see:
o Mark Anderson, New Case Summaries: EEOC v. Kronos,
American Bar Association, September 15, 2010, available at:
http://www2.americanbar.org/SCFJ I/Lists/New% 20Case% 20Summ
aries/DispForm.aspx? ID=235.
o Michael Triplett, Third Circuit Allows EEOC to Compel Testing
Company to Turn Over Some Documents, BNA Lens on Labor Law,
September 9, 2010, available at:
http://blogs.bna.com/laborlaw/fulltext.aspx? id=4294969465&blog
id=4294969397.


EEOC v. Wal-Mart Stores, Inc., 2010 U.S. Dist. LEXIS 13192
( E.D. Ky. Feb. 16, 2010) . The EEOC brought suit against Wal-Mart,
claiming that Wal-Mart under-hired women. The EEOC relied on the
expert opinion of a sociologist to argue that the company was the
sort of environment where gender stereotyping could occur. The
District Court ultimately excluded the evidence, finding that the
sociologist could not clearly connect any stereotyping to Wal-Marts
failure to hire women.


Second Circuit Applies Ricci

In a hundred and twenty eight page opinion written by J udge
Calabresi with an eleven page concurrence by J udge Raggi, a panel
of the 2
nd
Circuit in United States v. Brennan, 2011 U.S. App. LEXIS
9455 ( 2d Cir. 2011) , applied Riccis strong basis in evidence
standard to a settlement agreement. The settlement agreement
reached between the New York City Board of Education and the
Department of J ustice included, in part, retroactive seniority to
minority and women employees to remedy alleged disparate impact
hiring practices. A group of incumbent employees losing seniority in
the settlement intervened against this provision of the settlement
alleging reverse discrimination. The issue before the Second Circuit
in this decision is the applicability of Ricci v. DeStefano, 129 S.Ct.
2658 ( 2009) to the district courts judgment that some parts of
the retroactive seniority violated Title VII and other parts did not.

The court held that Ricci does apply to the facts of this case. The
settlement agreement was individualized and, therefore, does not
qualify as an affirmative action plan. Instead, due to the
individualized determinations, it is a make-whole relief intended to
provide ex post benefits to specified individuals who have suffered
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discrimination. The 2nd Circuit remands the case back to the
district court to re-evaluate its decision in light of the strong basis
in evidence standard set forth in Ricci.

The court sets up a four criteria test for the district court that
J udge Raggi concurrence rejects as dicta. 1) The standard is
objective and focuses on the strength of evidence of liability, not
the employers fear of litigation. 2) The strength of evidence is
based on the time the employer took the race or gender biased
action. 3) Either an actual prima facie case or strong basis in
evidence for a prima facie case for disparate-impact liability is
required. 4) The employer must have a strong basis in evidence
that either the challenged employment procedures are not job-
related or there was a less discriminatory alternative procedure the
employer refused to adopt.

What does this mean for employers? It significantly reduces their
ability to take voluntary actions, including settlement agreements,
of individualized make-whole relief for alleged disparate-impact. No
longer can an employer settle a disparate-impact case on the fear
of litigation when the class claiming discrimination desires make-
whole relief. In order for this relief to be voluntarily taken by an
employer, the employer must be objectively convinced it currently
has disparate-impact liability. Practically, employers who are able to
settle will not be able to do so until late in the discovery phase due
to the strong basis in evidence required. Whenever the employer
can reasonably maintain that it does not have disparate-impact
liability it cannot offer make-whole relief in settlement and will be
forced to take the case to trial. This will make disparate-impact
cases more expensive for both sides and more risky for plaintiffs
when there is a low chance of settlement.

Pregnancy Discriminat ion Encompasses Fert ilit y Treatment

In Govori v. Goat Fifty, L.L.C., 2011 U.S. Dist. LEXIS 33708
( S.D.N.Y. Mar. 30, 2011) , J udge Denise Cote followed the 7
th

Circuits 2008 holding in Hall v. Nalco Co., 534 F.3d 644 ( 7
th
Cir.
2008) , holding that an employee terminated for taking time to
undergo in vitro fertilization is entitled to protection under the
pregnancy discrimination act as all individuals receiving such
treatment are women. In Govari, the plaintiff was terminated the
next day after she informed her supervisors and co-workers that
she began fertility treatments.

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The courts discussion begins with the Supreme Courts clarification
of the scope of the Pregnancy Discrimination Act ( PDA) in
International Union v. J ohnson Controls, Inc., 499 U.S. 187 ( 1991) .
In that case, the court held a battery manufacturers excluding
women from certain jobs involving lead exposure to protect their
unconceived children constituted sex discrimination. The court
found the decision was not a gender neutral protection of all
employees unconceived children but focused on women because of
childbearing capacity, not fertility.

The court then distinguishes its case from Saks v. Franklin Covey
Co., 316 F.3d 337 ( 2d Cir. 2003) . In Saks, the second circuit
upheld an employers denial of insurance for surgical impregnation
procedures. In that case, while the procedure can only be
performed on women, the need for the treatment can be traced
back equally to male and female infertility. Since the procedure
treats gender neutral infertility and infertility itself is not protected,
the insurance denial did not violate Title VII.

The court looks to the reasoning in the Seventh Circuit case Hall v.
Nalco Co., 534 F.3d 644 ( 7
th
Cir. 2008) to provide its argument.
While IVF can be used to treat both male and female infertility, only
women will undergo the procedure. The woman will always be the
one who has to take time off from work for IVF treatments, even
when it is the man who suffers from infertility. Firing an employee
for taking time off to undergo IVF treatments is based on the
gender-specific quality of childbearing capacity and falls under Title
VII. Thus, the court held that Govori had a cognizable claim for
sex-based discrimination under Title VII, as amended by the PDA.

Employers need to recognize the distinction courts are making
between infertility as a gender neutral medical condition and
fertility treatments specific to women in their childbearing capacity.
IVF and any other treatments that only women can undergo
because of their childbearing ability are protected under Title VII.
Employers must allow their female employees time off for these
treatments and cannot fire employees for likely pregnancies as a
result of such treatments.

For other blogs on this case see J on Hyman, In Vitro proving to be
fertile ground for sex discrimination claims, Ohio Employers Law
Blog ( May 2, 2011) ,
http://www.ohioemployerlawblog.com/2011/05/in-vitro-proving-
to-be-fertile-ground.html; and Michael Pospis, Female Server States
Claim For Pregnancy Discrimination, Bias Against In Vitro
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Fertilization, PospisLawBlog ( Apr. 12, 2011) .
http://pospislawblog.com/2011/04/12/female-server-states-
claim-for-pregnancy-discrimination-bias-against-in-vitro-fertilization.

EEOC subpoena upheld

In EEOC v. Konica Minolta Business Solutions USA, Inc., 2011 U.S.
App. LEXIS 8894 ( 7th Cir. Ill. Apr. 29, 2011) , the 7
th
Circuit J udge
Dianne Wood writing for the panel, upheld a broadly written EEOC
subpoena in an individual charge investigation. The case involves
Elliot Thompson, an African-American salesman, who filed an EEOC
complaint after being fired from his job at Konica. Thompson
worked at one of Konicas four Chicago area facilities. His complaint
alleged that he was subjected to different terms and conditions of
employment and fired shortly after complaining to human resources
about race discrimination.

In the course of its investigation, the EEOC believed it found a
discriminatory pattern in Konicas hiring practices. They learned
that there were only six blacks out of one hundred twenty
employees among the four facilities, and all six were located in one
facility and on one of two sales teams at that facility. In response
to this discovery, the EEOC issued a broad subpoena for all records
relating to the hiring of sales personnel at all four Chicago-area
facilities. Konica objected to the subpoenas arguing they were
unrelated to Thompsons charge.

The 7th Circuit disagreed. J udge Wood relies on EEOC v. Shell Oil
Co., 466 U.S. 54 ( 1984) to support the Commissions role granting
it a relevance standard broad enough to ensure its ability to
investigate charges of systemic discrimination not be impaired. Id
at 69. The EEOC is authorized to consider overall conditions in the
workplace to support the complaining employees allegations. As a
result, the EEOC has the authority to determine if others in the
same class suffered the same discrimination.

Thompson alleged both an individual instance and a pattern of race
discrimination. The EEOC is entitled to investigate employers to see
if there is a prohibited pattern of discrimination. The court held that
so long as the subpoena was tailored to the EEOCs realistic
expectation that the hiring materials would be beneficial to its
investigation of an alleged discriminatory pattern and particular
instance of discrimination, the EEOC has the authority. Refusing to
characterize the subpoena as a fishing expedition, the 7
th
Circuit
concluded that the EEOC properly limited its inquiry to the Chicago
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area facilities and sales personnel where it held a realistic
expectation rather than an idle hope to find relevant evidence of
discrimination.

Employers should be extra careful in their hiring practices. If the
EEOC believes it has found a pattern of discrimination on its own
investigation, it can and will issue a subpoena to fully investigate.
At least in the 7
th
Circuit, courts will give the EEOC leeway for broad
subpoenas, or as my friends at the Ohio Employers Law Blog think,
witch hunts [ link
http://www.ohioemployerlawblog.com/2011/05/eeoc-subpoenas-
or-witch-hunts.html] . The EEOC can issue subpoenas unrestricted
by the person who filed the initial complaint. All personnel files, not
just those of the employee who alleged discrimination, can be the
target of an EEOC subpoena. As Paul Mollica points out on his blog
[ link http://www.employmentlawblog.info/2011/05/eeoc-v-konica-
minolta-business-solutions-usa-inc-no-10-1239-7th-cir-apr-29-
2011.shtml] , steering members of a racial class to particular stores
or offices is unlawful and can get you a similarly broad subpoena.
Non-Compet e Clause in Lease Agreement Unenforceable

In Optical Partners, Inc. v. Dang, 2011 Ark. 156, 2011 Ark. LEXIS
142 ( Ark. 2011) , the Supreme Court of Arkansas held the non-
compete provision of a lease agreement to be unenforceable. Kevin
Dang, an optometrist who performs eye exams, writes prescriptions
for glasses and contacts, and treats eye diseases rented his space
from Optical Partners. Optical Partners manufactures and dispenses
eye glasses. Optical Partners found it good business to have an
optometrist inside its retail space so patients could utilize the
convenience of getting an exam, prescription, and new glasses all at
the same location. In an effort to preserve this extra business,
Optical Partners included a non-compete provision in the lease
agreement that Dang would not practice optometry for one year
after the end of the lease agreement within three miles of Optical
Partners.

The arrangement worked well for Optical Partners. Their neighboring
business was complimentary and drove increased business for
them. Then Kevin Dang moved his practice from the space he
leased from Optical Partners to a new location within three miles.
He provided verbal notice before leaving, and his sister replaced him
at Optical Partners. After moving offices, Dang gave written notice
of his termination of the lease agreement. Optical Partners
responded by filing suit against Kevin Dang including for injunctive
relief for violation of the non-compete.
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The court held that while Dang was in clear violation of the non-
compete, it was unenforceable. The only enforceable non-competes
arise out of either employment contracts or contracts for the
transfer of goodwill or other property. The court found no valid
interest protected by the non-compete. Further evidence of a lack
of legitimate business interest to protect is the fact that their
businesses were not in competition with each other. They were
complimentary, not competitive. Thus, the court concludes the
non-compete is unreasonable and unenforceable.

This case only applies to businesses operating in Arkansas. Non-
compete law will vary from state to state. If your state similarly
disfavors non-competes, be on alert. Your state may not uphold
non-competes outside employment contracts or a transfer of
goodwill or property. If you try adding a non-compete to a new
type of contract, your state courts may not enforce it and just say
nice try. [ link
http://www.tradesecretsnoncompetelaw.com/2011/05/articles/no
ncompete-agreements/supreme-court-of-arkansas-refuses-to-
enforce-noncompete-found-in-lease-agreement/]

NLRB:
Complaint Regarding Dress Code Found to be Protected Activity by
NLRB
In Wyndham Resort Development Corp., 356 N.L.R.B. No. 104
(2011), the Board found that an employee had engaged in
protected, concerted activity, when he questioned his
supervisor in front of his coworkers, about a new dress code.
Interest on NLRB Awards
J effrey Hirsch, NLRB Requires Electronic Notification and Daily
Compound Interest, Workplace Prof Blog ( Oct. 25, 2010) ,
http://lawprofessors.typepad.com/laborprof_ blog/2010/10/
nlrb-requires-electronic-notification-and-daily-compound-
interest.html.
False Claims Act
Statute of Limitations in 3730(h) Retaliation Actions
Saunders v. District of Columbia, 711 F. Supp. 2d 42 (D.D.C.
May 13, 2010). The District Court, J udge Kollar-Kotelly, was
called upon to decide which D.C. statute of limitations governed
a retaliation claim under section 3730(h) of the False Claims
Act. In the wake of Graham County Soil & Water Conservation
District v. United States ex rel Wilson, 545 U.S. 409 (2005), the
District Court had to determine which D.C. statute of limitations
was most closely analogous to a FCA retaliation claim.
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Recognizing that this issue is one of first impression in the D.C.
Circuit, the court reviewed authorities from outside this
jurisdiction and then reviewed the various alternative statutes
that might apply. Plaintiff argued that the court should apply
the catchall three-year statute of limitations, whereas the
District argued that the D.C. Whistleblower Protection Act is the
most closely analogous state statute and the court should
accordingly apply its limitation period, which the District
asserted to be one year. The court noted that during the
pendency of the litigation, the D.C. Council had amended the
D.C. WPA to expand the statute of limitations to three years
with the amendment becoming effective on March 11, 2010. In
addition, the courts own research suggested a third possibility
the Districts statute of limitations period for claims of wrongful
discharge in violation of public policy, which appeared to be
three years. Finding that the parties briefing on this issue had
been inadequate, the court declined to make a ruling and
directed the parties to file supplemental briefs. On September
27, 2010, the District filed a motion to dismiss Plaintiffs claims
as time-barred. Plaintiff filed a memorandum in opposition on
October 12, 2010; and the District filed its reply on December
10, 2010. J udge Kollar-Kotelly has not ruled on this motion as
of April 5, 2011.
FERA Retroactivity
United States ex rel. Westrick v. Second Chance Body
Armor, Inc., 709 F. Supp. 2d 52 (D.D.C. May 4, 2010). In a False
Claims Act case, the District Court denied a motion to dismiss
by the defendants, including several companies and individuals.
Two companies filed a motion for reconsideration regarding a
FCA false statement claim, arguing that the Fraud Enforcement
and Recover Acts amendments to 31 U.S.C.S. 3729(a)(2) did
not apply retroactively. J udge Roberts disagreed, holding that
the FERAs amendments did not apply retroactively to the
claims at issue, and denied the motion.
United States ex rel. Kirk v. Schindler Elevator Corp.,
601 F.3d 94 ( 2nd Cir. Apr. 6, 2010) , cert. granted, 131 S.
Ct. 63 ( 2010) .
United States ex rel. Patton v. Shaw Servs., L.L.C., 2011
U.S. App. LEXIS 5415 (5th Cir. Mar. 17, 2011).
Collective Knowledge J ury Instruction
United States v. Sci. Applications Int'l Corp., 2010 U.S.
App. LEXIS 24808 (D.C. Cir. Dec. 3, 2010). A government
contractor appealed from a jury verdict in District Court finding
that the contractor violated the False Claims Act by seeking
payments from the United States when it knew it was violating
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conflict of interest provisions in its contract. J udge Tatel found
that the District Court erred in giving the jury an instruction
based on collective knowledge that was prejudicial and
erroneous because it could have misled the jury into believing
that the standard for knowledge under the FCA was different
for individuals and corporations.
Posting of Robert M. P. Hurwitz to Government Contracts
Blog,
http://www.governmentcontractslawblog.com/2011/01/article
s/false-claims/dc-circuit-rejects-collective-knowledge-but-
shines-spotlight-on-processes/ (J an. 18, 2011, 12:52 EST).
Causat ion
Application of Gross to Two Unlawful Reasons
Cross v. Clough, 2010 U.S. Dist. LEXIS 22415 (D.D.C. Mar. 11,
2010). A plaintiff prevailed against the Smithsonian Institution
before the Merit Systems Protection Board on his claim that he
was terminated for protected whistleblowing activities. The
plaintiff then sued the Secretary of the Smithsonian for
terminating his employment due to protected activity under
Title VII. The Smithsonian filed a motion for summary judgment,
arguing that mixed motive retaliation claims under Title VII are
barred after Gross v. FBL Financial Services, Inc., 129 S. Ct.
2343 (2009). J udge Collyer denied the motion, noting that this
was not a mixed motive case because the plaintiff claimed the
Smithsonian had two unlawful reasons for his termination, and
that each was separately actionable.
Application of Gross to Federal Sector ADEA
Ford v. Mabus, 2010 U.S. App. LEXIS 25254 (D.C. Cir. Dec. 10,
2010). In an Age Discrimination in Employment Act (ADEA)
action against a federal agency in which it was alleged that the
agency discriminated on the basis of age in violation of section
633(a) of the ADEA, the court, J udge Tatel, writing for a
unanimous panel, found that the language of section 633(a)
was substantially different than the language upon which the
Supreme Court had relied in Gross v. FBL Financial Services Inc.,
129 S. Ct. 2343 (2009), and that accordingly courts may
establish liability, although not necessarily entitlement to such
remedies as reinstatement, by a showing that consideration of
age was a factor in the challenged personnel action. Section
623 of ADEA prohibits personnel actions made because of a
persons age; whereas section 633(a) provides that all
personnel actions shall be free from any discrimination based
on age.
Application of Gross to Title VII Mixed-Motive and Motivating Factor
Retaliation Claims
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Hayes v. Sebelius, 2011 U.S. Dist. LEXIS 9839 (D.D.C. 2011) A
plaintiff employee sued the Department of Health and Human
Services for racial discrimination and retaliation under Title VII. In
considering mixed-motive and motivating factor claims in light
of Gross v. FBL Financial Services Inc., 129 S. Ct. 2343 (2009),
J udge Lamberth held as follows:
Title VII plaintiffs may not bring mixed-motives retaliation claims
under PriceWaterhouse.
Title VII plaintiffs may not bring motivating factor retaliation
claims under the 1991 revisions to Title VII.
Placing an employee on a Performance Improvement Plan could
dissuade a reasonable employee from pursuing a discrimination
claim, and thus may be an adverse action in a retaliation claim.
2011 U.S. Dist. LEXIS 9839 at 46 (citing Kelly v. Mills, 677 F.
Supp. 2d 206, 225 (D.D.C. 2010)).
Rehabilitation Act: Causation Analysis After Gross: Request for
Current Medical Information
Gard v. United States Dep't of Educ., 2010 U.S. Dist. LEXIS
123867 (D.D.C. Nov. 23, 2010). A pro se plaintiff sued the U.S.
Department of Energy for alleged retaliation under the
Rehabilitation Act after the plaintiffs underlying claim that he
was denied reasonable accommodation was dismissed. J udge
Collyer granted the Departments motion for summary
judgment, finding that the plaintiffs refusal to provide current
medical records was the reason the Department denied him a
reasonable accommodation. Following Gross v. FBL Financial
Services Inc., 129 S. Ct. 2343 (2009) the court held that a
plaintiff seeking vindication under the Rehabilitation Act must
prove that his disability was the sole or but-for reason for the
employer's actions or inactions, regardless of whether the
plaintiff advances a claim of discrimination based on disparate
treatment, mixed-motive, or retaliation. 2010 U.S. Dist. LEXIS
123867 at *15.

Evident iary and Wit ness-Relat ed Issues
Spoliation of Evidence

Talavera v. Shah, 2011 U.S. App. LEXIS 6299 ( D.C. Cir. Mar.
29, 2011) . In a case that turned, in part, on spoliation, a
plaintiff former employee of the United States Agency for
International Development appealed the District Courts grant
of summary judgment on her claims of gender discrimination
and retaliation under Title VII. J udge Rogers, writing for the
Court, affirmed the dismissal as to all counts except the
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plaintiffs 2004 non-promotion gender discrimination claim,
and held as follows:

i. EEOC regulations required the selecting official to keep
his interview notes for one year. A reasonable jury could
conclude that the selecting officials intentional destruction
of his notes supports an inference that the notes would have
contained information favorable to the plaintiffs claim.
ii. Statements offered by the plaintiff were not stray
comments by an employer, but statements by the head of
the Office of Security relating specifically to alleged gender
bias on the part of a subordinate manager who was
responsible for making the challenged employment decision.
iii. A statement that men in the office had bonded
through military service was not a stray remark, and was
relevant to the plaintiffs gender discrimination claim.

Statistical Evidence

Randall v. Rolls-Royce Corp., 2010 U.S. Dist. LEXIS 23421 (S.D.
Ind. Mar. 12, 2011) (both parties expert statistical testimony
was admissible at class certification stage where purported
deficiencies in each sides analysis were questions of weight, not
of methodology; selection of too few variables to strengthen
the link between salary and gender was question of weight, as
was diluting the link with too many variables).
After-Acquired Evidence Defense:
Kapche v. Holder, 714 F. Supp. 2d 109 (D.D.C. May 29, 2010).
A jury awarded the plaintiff one hundred thousand dollars
($100,000.00) in compensatory damages on his claims of
discrimination and violation of the Rehabilitation Act. The
plaintiff then filed a motion for back pay and either instatement
or front pay. The defendant, the Federal Bureau of
Investigations, relied on after-acquired evidence in arguing that
the plaintiff should be entitled to no equitable relief because the
FBI revoked a conditional offer of employment upon a finding of
lack of candor by the plaintiff in the application process. J udge
Robertson agreed with the FBI, holding that it properly invoked
the after-acquired evidence defense.
Expert Witness Fees

Schmidt v. Solis, 2010 U.S. Dist. LEXIS 120986 ( D.D.C. Nov.
16, 2010) . When a discovery dispute erupted between the
parties, the plaintiff moved for an award of fees for expert
witness deposition preparation. J udge Facciola reversed a
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position he articulated in U.S. ex rel. Fago v. M&T Mortg.
Corp., 238 F.R.D 3 ( D.D.C. 2006) , and held that reasonable
fees for the time spent by an expert preparing for a
deposition should always be paid by the party taking the
deposition.

Guantanamera Cigar Co. v. Corporacion Habanos, S.A., 2010
U.S. Dist. LEXIS 82543 ( D.D.C. Aug. 5, 2010) . J udge
Lamberth followed U.S. ex rel. Fago v. M&T Mortg. Corp., 238
F.R.D 3 ( D.D.C. 2006) , and held that preparation time for a
deposition was not included in the scope of Rule 26( b) ( 4) ( C) ,
and stated that fees for such time would be awarded on a
case-by-case basis.

Class Act ions
Alexandra D. Lahav, The Curse of Bigness and the Optimal Size of
Class Actions, 63 Vand. L. Rev. En Banc 117 ( 2010) ,
http://papers.ssrn.com/sol3/papers.cfm? abstract_ id=1701278.

Russell J ackson, Expert Testimony at the Class-Certification Stage,
The National Law J ournal ( J an. 24, 2011) ,
http://www.skadden.com/content/Publications/Publications2337_
0.pdf.

Richard A. Nagareda, Common Answers for Class Certification,
Vanderbilt Law Review En Banc, Forthcoming, Vanderbilt Public Law
Research Paper No. 10-33 ( 2010) ,
http://papers.ssrn.com/sol3/papers.cfm? abstract_ id=1662620.

Gregory Mitchell, Good Causes and Bad Science, Vanderbilt Law
Review En Banc, Forthcoming, Vanderbilt Public Law and Legal
Theory Research Paper No. 2010-38 ( 2010) ,
http://papers.ssrn.com/sol3/papers.cfm? abstract_ id=1694141.

Elizabeth Chamblee Burch, Introduction: Dukes v. Wal-Mart Stores,
Inc., 63 Vand. L. Rev. En Banc 91 ( 2010) ,
http://papers.ssrn.com/sol3/papers.cfm? abstract_ id=1683643.

Conversion of Company Propert y
Employee Removal of Documents from the Workplace
The New J ersey Supreme Courts decision in Quinlan regarding
the removal by the employee of documents and/or ESI from the
workplace, and the use of same by employees counsel in
furtherance of employees case raises a host of ethical and
other issues.
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Quinlan v. Curtiss-Wright Corp., 8 A.3d 209 ( N.J . 2010) . The
New J ersey Supreme Court reversed a lower court holding
and reinstated a jury verdict in favor of a plaintiff who was
fired after copying more than 1,800 confidential company
documents and sending them to her attorneys for use in her
pending discrimination lawsuit against the company. While
holding that the copying in these circumstances was not
protected activity under New J erseys Law Against
Discrimination ( LAD) , the court further held that Quinlans
attorneys subsequent use of one of the confidential
documents taken from the company ( specifically, the
performance appraisal of Quinlans boss) at a deposition in a
pending discrimination case was protected activity for which
the plaintiff could not be lawfully terminated. Having found
sufficient evidence that the employer had terminated Quinlan
as a result of her attorneys use of the performance appraisal
at the depositionas opposed to her initial copying of the
documentsthe court upheld the jurys verdict in favor of
the plaintiff. Further, the court upheld the award of punitive
damages, refusing to overturn the jurys findings of actual
participation by upper management or willful indifference to
the Quinlans termination, and egregious behavior.

For further discussion and analysis of Quinlan, see:

Retaliation Verdict Upheld Where Employee Was Fired
For Using Company Records to Prove Discrimination Claim,
Posting of David Conforto to Boston Employment Lawyer
Blog ( Mar. 1, 2011) , available at
http://www.bostonemploymentlawyerblog.com/2011/03/ret
aliation_ verdict_ upheld_ whe_ 1.html? utm_ source=feedburne
r&utm_ medium=feed&utm_ campaign=Feed% 3A+BostonEmpl
oymentLawyerBlogCom+% 28Boston+Employment+Lawyer+Bl
og% 29.
David W. Garland, Take 5: Views You Can Use, Epstein
Becker Green Client Newsletter ( Feb. 24, 2011) , available at
http://www.ebglaw.com/shownewsletter.aspx? Show=14040.
Harris N. Feldman & Timothy D. Sirhal, N.J . Supreme
Court Allows Employee to Copy Confidential Company
Documents in Support of Discrimination Lawsuits Against
Employers, Bloomberg Law Reports ( Feb. 17, 2011) , available
at http://www.schnader.com/files/Publication/7158f6de-
5c24-42e4-8662-
93f3d2320b21/Presentation/PublicationAttachment/489c0
2d9-fa2f-4b60-95f5-
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9a9a34d45a7a/Bloomberg% 20Law% 20Report_ Feldman_ Sirh
al_ J anuary% 202011.pdf.
Employees Taking of Confidential Information Can Be a
Protected Activity Under the New J ersey Law Against
Discrimination, Posting of Michael N. Morea to Employment
Law Monitor ( Dec. 13, 2010) , available at
http://www.employmentlawmonitor.com/tags/quinlan-v-
curtiswright/.

Background Checks
Criminal Background Checks
According to the National Employment Law Project, roughly 65
million people have an arrest or conviction that shows up in a
routine criminal background check, and a NELP report entitled
65 Million Need Not Apply: The Case for Reforming Criminal
Background Checks for Employment finds numerous examples in
which major employers preclude consideration of anyone with a
criminal record. The report is available here:
http://www.nelp.org/page/-
/65_Million_Need_Not_Apply.pdf?nocdn=1.
Suzanne Lucas, Employment Background Checks: What Theyre
Really Looking For (J an. 5, 2011),
http://www.bnet.com/blog/evil-hr-lady/employment-
background-checks-what-they-8217re-really-looking-for/1479.
Ban the Box Laws
Several states, including Connecticut, Massachusetts, and New
Mexico, have passed laws prohibiting employers from asking
applicants about criminal history on a job application.
EmployeeScreenIQ, The Top Nine: EmployeeScreenIQs 2011
List of Background Screening Trends (Dec. 2010),
http://www.employeescreen.com/2011_EIQ_Trends.pdf.
Daniel Schwartz, [ Connecticut] General Assembly Overrules
Veto of Criminal Background Check Bill, Connecticut
Employment Law Blog (J une 22, 2010),
http://www.ctemploymentlawblog.com/2010/06/articles/legisl
ative-issues/general-assembly-overrules-veto-of-criminal-
background-check-bill/.

Credit History
Molly DiBianca, Is Creditworthiness a Protected Characteristic?
Yes, Says EEOC, The Delaware Employment Law Blog (Dec. 27,
2010),
http://www.delawareemploymentlawblog.com/2010/12/is_cre
ditworthiness_a_protecte.html.
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Barry A. Hartstein, EEOC to Hold Meeting on the Use of Credit
History as Employment Screening Device, Washington DC
Employment Law Update (Oct. 13, 2010),
http://www.dcemploymentlawupdate.com/2010/10/articles/a
gency-happenings/eeoc-to-hold-meeting-on-the-use-of-credit-
history-as-employment-screening-device/.
Daniel Schwartz, EEOC Holds Public Hearing on Use of Credit
Reports for Hiring, Connecticut Employment Law Blog (Oct. 21,
2010),
http://www.ctemploymentlawblog.com/2010/10/articles/chro-
and-eeoc/eeoc-holds-public-hearing-on-use-of-credit-reports-
for-hiring/.
J on Hyman, EEOC holds public hearing on credit histories and
employee selection criteria, Ohio Employment Law Blog (Oct.
21, 2010),
http://www.ctemploymentlawblog.com/2010/10/articles/chro-
and-eeoc/eeoc-holds-public-hearing-on-use-of-credit-reports-
for-hiring/
Nick Fishman, EEOC Weighs Position on Credit Reports for
Employment Screening, IQ Blog (Oct. 19, 2010),
http://www.employeescreen.com/iqblog/eeoc-weighs-position-
on-credit-reports-for-employment-screening/.
Nick Fishman, Employment Credit Reports Have Value: I Hope
the EEOC Listened, IQBlog (Oct. 21, 2010),
http://www.employeescreen.com/iqblog/employment-credit-
reports-have-value-i-hope-the-eeoc-listened/.
Michael D. Haberman, Credit Checks: Yes or No?, HR
Observations (Oct. 21, 2010),
http://omegahrsolutions.com/2010/10/credit-checks-yes-or-
no.html.
Privacy and Data Protection Practice Group, Credit Check
Lawsuit Signals Potential New Wave of Class Actions, Workplace
Privacy Counsel (Dec. 9, 2010),
http://privacyblog.littler.com/2010/12/articles/background-
checks/credit-check-lawsuit-signals-potential-new-wave-of-
class-actions/.
Robin E. Weideman, Legislation Limiting Employer Use of Credit
Reports Pending in California, California Labor & Employment
Blog (J une 21, 2010),
http://www.callaborlaw.com/archives/new-laws-legislation-
legislation-limiting-employer-use-of-credit-reports-pending-in-
california.html.

Social Media Issues
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Employer May be Liable for Impersonating Employee on Facebook
and Twitter
In Maremount v. Susan Friedman Design Group, Ltd., 2011 U.S.
Dist. LEXIS 26441 (N.D. Ill. Mar. 15, 2011), an employer that
allegedly posted to an employees Facebook and Twitter
accounts without her consent may be liable for false association
/ false endorsement under the Lanham Act, 15 U.S.C.
1125(a)(1)(A), and the right to publicity under the Illinois right
to publicity act.
Training Programs
Failure to Follow Training Program is Not Breach of Contract
In Brule v. Nerac, 127 Conn. App. 315 (Conn. App. Ct. Mar. 15,
2011), former employees brought suit for breach of contract
and negligence against their former employer, who had
terminated them. The plaintiffs sought damages sustained after
the employer trained managers, including one of the plaintiffs, in
the proper procedures for terminating employees. The employer
did not follow those procedures when terminating the plaintiffs.
The Appellate Court rejected the contract claim because the
training program completely lacked any promissory language,
were only suggestive guidelines for managing employees, and
therefore could not have created a contract. For the same
reason, the court rejected the plaintiffs argument that the
employer had assumed a duty to carry out the disciplinary
methods outlined in the training.
FRB Brokerage / Commission Payrolls
Natl Assoc. of Mortgage Brokers v. Board of Governors of the Federal
Reserve System, 2011 U.S. Dist. LEXIS 33583 (D.D.C. Mar. 30, 2011).
The plaintiffs in this case requested a temporary restraining order and
injunction against enforcement of a new Federal Reserve Board rule
forbidding various types of compensation of mortgage brokers and
related parties. The court found that the plaintiffs had associational
standing through their members, but that they did not demonstrate a
likelihood of success on the merits. After holding that the Board was
acting within its authority under the APA, the court evaluated the
justification for the new regulation. The regulation, the court held, was
not arbitrary and capricious because the Board found that consumers
suffered a significant risk of economic injury based on the existing
system of compensation, the rules were designed to reasonably avoid
that injury, and that the record supported the Boards findings. The
rule also survived scrutiny under the Regulatory Flexibility Act and the
Small Business Regulatory Enforcement Fairness Act. Though the court
(having held that the plaintiffs did not demonstrate a likelihood of
success on the merits) did not need to address whether harm from
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the Boards action would be irreparable, it did find that the claims of
irreparable harm were not supported by adequate evidence.
Accusing a Former Employee of St ealing Trade Secret s May
Const it ut e Unlawful Ret aliat ion
J udge Lewis T. Babcock of the Federal District Court for Colorado in
Hertz v. Luzanec America, Inc., 2010 U.S. Dist. LEXIS 125351 (D.
Colo. Nov. 29, 2010), ruled that the defendant companys email to
plaintiffs lawyer with a copy to plaintiffs new employer, alleging that
plaintiff was using stolen property (trade secrets), could be retaliatory.
2458
ALI-ABA Course oI Study
Current Developments in Employment Law:
The Obama Years at Mid-Term
July 28 - 30, 2011
Santa Fe, New Mexico
Trends in Employment Discrimination Law
By
Richard T. Seymour
Law OIIice oI Richard T. Seymour, P.L.L.C.
Washington, D.C.
Law OIIice oI Richard T. Seymour, P.L.L.C., 1150 Connecticut Avenue N.W., Suite
900, Washington, D.C. 20036-4129. Telephone: 202-862-4320. Cell: 202-549-1454.
Facsimile: 800-805-1065. E-mail: rickrickseymourlaw.net. Some oI the inIormation in this
paper is used with permission Irom a prior edition oI Richard T. Seymour and John F. Aslin,
Equal Employment Law Update (Bureau oI National AIIairs, Washington, D.C., 2007),
copyright American Bar Association, 2007. For copies, contact BNA at 1-800-960-1220;
attendees and members oI the Labor and Employment Law Section are entitled to a 25
discount as a beneIit oI Section membership. Mention priority code EQL in order to receive the
discount.
This paper is updated at various times each year, and updates can be downloaded Irom
www.rickseymourlaw.com. Many oI my other CLE papers are also downloadable Irom this site.
2459

ii
Table of Contents
I. The Statistics ....................................................................................................................... 1
II. EEOC Charge Statistics ...................................................................................................... 1
III. The Constitution and Statutes ......................................................................................... 2
A. The First Amendment ..................................................................................................... 2
B. Privacy: Employers Access to Employee Communications .......................................... 3
C. 42 U.S.C. 1983 ............................................................................................................. 4
1. Municipal Liability under Monell ............................................................................... 4
2. Supervisory Liability .................................................................................................. 4
D. Title VII of the Civil Rights Act of 1964 ........................................................................ 5
1. Mixed Bases of Discrimination .................................................................................. 5
2. Pregnancy Discrimination Prior to the PDA ............................................................... 6
3. Federal Employees Protected Against Retaliation ...................................................... 6
E. The Americans with Disabilities Act and Rehabilitation Act ......................................... 6
1. Ministerial Exception .................................................................................................. 6
2. Disability ..................................................................................................................... 7
3. Qualified Individuals ............................................................................................... 8
4. Reasonable Accommodation ...................................................................................... 9
F. Family and Medical Leave Act ....................................................................................... 9
1. Evidence Showing a Serious Health Condition .......................................................... 9
2. Rejecting a Fruit of the Poisonous Tree Argument ................................................. 9
G. Employment Status ....................................................................................................... 10
H. Whistleblower Protections ............................................................................................ 11
IV. Application of State Laws Against Discrimination ...................................................... 11
V. Theories and Proof ............................................................................................................ 11
A. The Inferential Model ................................................................................................... 11
1. Caution ...................................................................................................................... 11
2. Plaintiff Need Not Prove an Unlawful Motive Was the Sole Reason ...................... 12
3. Reverse Discrimination ............................................................................................. 13
4. Adverse Employment Actions .................................................................................. 13
5. Adequacy of Employers Nondiscriminatory Reason .............................................. 14
6. Pretext ....................................................................................................................... 14
a. Definitions............................................................................................................. 14
b. Shifting Explanations ............................................................................................ 15
c. Employers Good-Faith Error Does Not Constitute Pretext ................................. 15
d. Defendants Nonsensical Explanation Can Show Pretext .................................... 15
e. Business Judgment ................................................................................................ 16
7. Defndants Failure to Exercise Normal Business Judgment ..................................... 17
8. Timing ....................................................................................................................... 17
B. Mixed Motives .............................................................................................................. 18
1. The Decision in Gross .............................................................................................. 18
2. Gross Does Not Bar ADEA Pattern and Practice Claims ..................................... 19
3. Gross and the Same Decision Defense .................................................................. 20
4. 42 U.S.C. 1983 First Amendment Claims Cannot Involve Mixed Motives .......... 20
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5. 42 U.S.C. 1981 Claims Can Involve Mixed Motives ............................................ 20
6. Pre-ADAAA ADA Claims Cannot Involve Mixed Motives .................................... 21
7. Post-ADAAA ADA Claims Still Open for Decision ................................................ 21
8. FMLA Retaliation Claims Can Involve Mixed Motives .......................................... 21
9. LMRDA Claims Cannot Involve Mixed Motives .................................................... 21
C. Constructive Discharge ................................................................................................. 21
1. Required Element: Intent to Force the Employee to Quit ......................................... 21
2. Employees Who Bolt Too Soon Have No Claim ..................................................... 22
3. If Most Employees Stay, the Claim Fails ................................................................. 23
D. Retaliation ..................................................................................................................... 23
1. Associational Discrimination .................................................................................... 23
2. Protected Conduct ..................................................................................................... 24
a. Power to Correct the Problem is Not a Factor ...................................................... 25
b. Official Job Duties, and Plaintiff Overstepping Perceived Bounds ...................... 25
3. Defendants Ignorance of Protected Conduct ........................................................... 26
4. How Specific Must Defendants Knowledge of Protected Conduct Be? ................. 26
5. Are Retaliatory Counterclaims Actionable? ............................................................. 27
a. Supreme Court Context ......................................................................................... 27
b. Courts of Appeals ................................................................................................. 29
6. What Other Conduct is Actionable? ......................................................................... 30
a. Request for Change in Office Space Not Actionable ........................................... 30
b. Two Days Loss of Pay Actionable ...................................................................... 30
c. Burlington Northern Standard Unavailable under USERRA ............................... 30
7. Causation................................................................................................................... 31
a. Following Standard Practices Precludes Causation .............................................. 31
b. Temporal Proximity .............................................................................................. 31
E. Circumstantial Evidence ............................................................................................... 31
F. Proving Truisms to be Inapplicable .............................................................................. 31
1. Same Decisionmakers Can Still Discriminate....................................................... 31
G. Discriminatory Statements ............................................................................................ 32
1. Biased Statements Do Not Have a Short Probative Shelf Life ................................. 32
2. The Inferences to be Drawn from a Biased Statement ............................................. 33
3. Speakers Who Were Not Formal Decisionmakers ................................................... 33
H. Simple Statistics Can Be Probative ............................................................................... 35
I. Harassment .................................................................................................................... 36
1. Hostile Housing Environment................................................................................... 36
2. The Prima Facie Case .............................................................................................. 36
3. Causation................................................................................................................... 37
4. Severe or Pervasive ................................................................................................... 39
5. Unwelcomeness ........................................................................................................ 41
6. Conditions of Employers Vicarious Liability .......................................................... 41
7. Employers Duty to Cure Any Harassment That Does Occur .................................. 41
8. Failure to Complain, and Adequacy of Complaints .................................................. 42
J. Taking Documents ........................................................................................................ 42
K. Privacy of E-Mails ........................................................................................................ 45
L. Independent Judgment .................................................................................................. 47
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M. Independent Investigations ....................................................................................... 48
VI. Litigation ....................................................................................................................... 49
A. Exhaustion..................................................................................................................... 49
B. Timeliness ..................................................................................................................... 49
1. Promotional Rosters .................................................................................................. 49
2. Present Effects of Past Discrimination Under the Ledbetter Fair Pay Act ............... 50
3. EEOCs Oral Notice of Right to Sue Does Not Start Clock Running ...................... 51
4. Tolling Because of Mental Incapacity ...................................................................... 51
5. Hostile Environment ................................................................................................. 52
C. Bars to Suit .................................................................................................................... 53
1. Internal Exhaustion? ................................................................................................. 53
2. Immunity for Actions of Co-Workers? ..................................................................... 54
3. Claim Preclusion ....................................................................................................... 54
4. Preemption ................................................................................................................ 55
D. Pleading......................................................................................................................... 56
E. Summary Judgment ...................................................................................................... 58
F. Class Actions and Collective Actions ........................................................................... 59
F. Arbitration ..................................................................................................................... 62
G. Evidence ........................................................................................................................ 69
1. Authenticity............................................................................................................... 69
2. Other Instances of Discrimination ............................................................................ 69
H. Jury Trial ....................................................................................................................... 69
I. Jury Instructions ............................................................................................................ 70
J. The Jury Verdict ........................................................................................................... 71
K. Rate of Prejudgment Interest ........................................................................................ 71
L. Compensatory Damages ............................................................................................... 72
M. Punitive Damages ..................................................................................................... 73
1. Upholding Entitlement .............................................................................................. 73
2. Amounts .................................................................................................................... 73
3. Lower Court Chopped Too Much from the Award .................................................. 73
N. Attorneys Fees ............................................................................................................. 74
1. Enhancements ........................................................................................................... 74
2. Fee Recoveries .......................................................................................................... 77
O. Sanctions ....................................................................................................................... 77
VII. Federal-Sector Particularities ........................................................................................ 81
VIII. Appellate Tips for Effective Advocacy ........................................................................ 82
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I. The Statistics
Number of Employment
Twelve-Month Discrimination Cases
Period Filed in These 12 Months
1997 (12 mos. to 12/31/97) 24,174
1998 (12 mos. to 12/31/98) 23,299
1999 (12 mos. to 12/31/99) 22,412
2000 (12 mos. to 12/31/00) 21,111
2001 (12 mos. to 12/31/01) 21,062
2002 (12 mos. to 12/33/02) 20,972
2003 (12 mos. to 12/31/03) 20,040
2004 (12 mos. to 9/30/04) 19,746
2005 (12 mos. to 9/30/05) 16,930
2006 (12 mos. to 9/30/06) 14,353
2007 (12 mos. to 12/31/07) 13,107
2009 (12 mos. to 3/31/10) 13,523
2010 (12 mos. to 3/31/10) 14,334
There are no comparable figures available for filings in State courts.
The sharp decline since 1997 in the number of new fair-employment cases filed in
Federal district courts seems to have stopped, and the number of new filings is increasing again.
There is a 9% increase between 2007 and 2010.
II. EEOC Charge Statistics
The above information was downloaded on March 14, 2010, from the EEOC web site,
http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm:
Category FY 2007 FY 2009 FY 2010 % Change, FY 2007-
FY 2010
Total charges 82,792 93,277 99,922 20.7%
Race 30,510 33,579 35,890 17.6%
Retaliation 26,663 33,613 36,258 36.0%
Sex 24,826 28,372 29,029 16.9%
Age 19,103 22,778 23,264 21.8%
Disability 17,734 21,451 25,165 41.9%
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Category FY 2007 FY 2009 FY 2010 % Change, FY 2007-
FY 2010
National Origin 9,396 10,601 11,304 20.3%
Religion 2,880 3,386 3,790 31.6%
Equal Pay Act 818 942 1,044 27.6%
GINA N.A. N.A. 201


III. The Constitution and Statutes
A. The First Amendment
Christian Legal Society Chapter of the University of California, Hastings College of the
Law v. Martinez, __ U.S. __, 130 S.Ct. 2971 (2010), held that the First Amendment is not
violated by requiring that a student organization applying for official recognition, and thus for a
share of student activity fees, comply with the universitys nondiscrimination policy. Justice
Ginsburg, writing for the majority, described the issue:
In the view of petitioner Christian Legal Society (CLS), an accept-all-comers
policy impairs its First Amendment rights to free speech, expressive association, and free
exercise of religion by prompting it, on pain of relinquishing the advantages of
recognition, to accept members who do not share the organization's core beliefs about
religion and sexual orientation. From the perspective of respondent Hastings College of
the Law (Hastings or the Law School), CLS seeks special dispensation from an across-
the-board open-access requirement designed to further the reasonable educational
purposes underpinning the school's student-organization program.
In accord with the District Court and the Court of Appeals, we reject CLS's First
Amendment challenge. Compliance with Hastings' all-comers policy, we conclude, is a
reasonable, viewpoint-neutral condition on access to the student-organization forum. In
requiring CLS-in common with all other student organizations-to choose between
welcoming all students and forgoing the benefits of official recognition, we hold,
Hastings did not transgress constitutional limitations. CLS, it bears emphasis, seeks not
parity with other organizations, but a preferential exemption from Hastings' policy. The
First Amendment shields CLS against state prohibition of the organization's expressive
activity, however exclusionary that activity may be. But CLS enjoys no constitutional
right to state subvention of its selectivity.
Id. at 2978. The school offered CLS the alternative of not being officially recognized and
sharing in student activity fees, but of limiting its membership as it wanted and holding meetings
and activities in Hastings facilities and having access to campus bulletin boards and other means
of advertising its activities. Id. at 2981. The Court rejected CLSs argument challenging
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Hastings policy as written, i.e., that the written policys references to nondiscrimination
imposed burdens only on religious organizations with differing tenets, because the parties had
stipulated below that Hastings current policy was an all comers policy applicable to all
student organizations, such that the campus Democratic Club could not exclude Republicans.
The majority strongly emphasized the importance of stipulations:
Litigants, we have long recognized, [a]re entitled to have [their] case tried upon
the assumption that ... facts, stipulated into the record, were established. H. Hackfeld &
Co. v. United States, 197 U.S. 442, 447, 25 S.Ct. 456, 49 L.Ed. 826 (1905). This
entitlement is the bookend to a party's undertaking to be bound by the factual stipulations
it submits. See post, at 3005 (ALITO, J., dissenting) (agreeing that the parties must be
held to their Joint Stipulation). As a leading legal reference summarizes:

[Factual stipulations are] binding and conclusive ..., and the facts stated are not
subject to subsequent variation. So, the parties will not be permitted to deny the
truth of the facts stated, ... or to maintain a contention contrary to the agreed
statement, ... or to suggest, on appeal, that the facts were other than as stipulated
or that any material fact was omitted. The burden is on the party seeking to
recover to show his or her right from the facts actually stated. 83 C.J.S.,
Stipulations 93 (2000) (footnotes omitted).

This Court has accordingly refused to consider a party's argument that
contradicted a joint stipulation [entered] at the outset of th[e] litigation. Board of
Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 226, 120 S.Ct. 1346, 146
L.Ed.2d 193 (2000). Time and again, the dissent races away from the facts to which CLS
stipulated. See, e.g., post, at 3001, 3002, 3003, 3005 - 3006, 3012 - 3013. But factual
stipulations are formal concessions ... that have the effect of withdrawing a fact from
issue and dispensing wholly with the need for proof of the fact. Thus, a judicial
admission ... is conclusive in the case. 2 K. Broun, McCormick on Evidence 254, p.
181 (6th ed.2006) (footnote omitted). See also, e.g., Oscanyan v. Arms Co., 103 U.S. 261,
263, 26 L.Ed. 539 (1881) (The power of the court to act in the disposition of a trial upon
facts conceded by counsel is as plain as its power to act upon the evidence produced.).

Id. at 2982 (footnotes omitted). The case involves a number of other fascinating issues, but the
other issues are less likely to be relevant to the litigation of employment law cases than the
above. Justice Ginsburgs majority opinion was joined by Justices Stevens, Kennedy, Breyer,
and Sotomayor. Justices Stevens and Kennedy filed concurring opinions. Justice Alito
dissented, joined by the Chief Justice and Justices Scalia and Thomas.
B. Privacy: Employers Access to Employee Communications
City of Ontario v. Quon, __ U.S. __, 130 S.Ct. 2619, 177 L.Ed.2d 216, 30 IER Cases
1345 (2010), held that the City did not violate the Fourth Amendment by examining employees
text messages sent over City pagers to see whether they were on City business or private, for
purposes of charging them for excessive private text messaging. The Court deliberately issued a
narrow opinion. It stated at 2630:
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A broad holding concerning employees' privacy expectations vis--vis employer-
provided technological equipment might have implications for future cases that cannot be
predicted. It is preferable to dispose of this case on narrower grounds. For present
purposes we assume several propositions arguendo: First, Quon had a reasonable
expectation of privacy in the text messages sent on the pager provided to him by the City;
second, petitioners' review of the transcript constituted a search within the meaning of the
Fourth Amendment; and third, the principles applicable to a government employer's
search of an employee's physical office apply with at least the same force when the
employer intrudes on the employee's privacy in the electronic sphere.
The Court held: The search was justified at its inception because there were reasonable
grounds for suspecting that the search [was] necessary for a noninvestigatory work-related
purpose. Id. at 2631. Justice Kennedy wrote for a nearly unanimous Court, with Justice Scalia
not joining in Part III-A and writing separately on that point. Justice Stevens joined the majority
opinion but also wrote a concurring opinion.
C. 42 U.S.C. 1983
1. Municipal Liability under Monell
Los Angeles County v. Humphries, __ U.S. __, 131 S.Ct. 447, 449, 178 L.Ed.2d 460
(2010) (Breyer, J.), held that the limits on municipal liability imposed by Monell v. New York
City Dept. of Social Servs., 436 U.S. 658 (1978), apply to suits for injunctive relief as well as
suits for monetary relief: The question presented is whether the policy or custom requirement
also applies when plaintiffs seek prospective relief, such as an injunction or a declaratory
judgment. We conclude that it does so apply.
2. Supervisory Liability
Starr v. Baca, 633 F.3d 1191, 78 Fed.R.Serv.3d 1060 (9th Cir. 2011), reversed the
district courts dismissal of the plaintiff inmates 1983 supervisory liability claim for deliberate
indifference to his health. By way of background, because there is no respondeat superior
liability under 1983, supervisory liability is the only means by which an official, such as a
supervisor or manager, can be held accountable for certain actions of the subordinates they
control. The court explained that where the applicable constitutional standard is deliberate
indifference, a plaintiff may state a claim for supervisory liability based upon the supervisor's
knowledge of and acquiescence in unconstitutional conduct by others. Id. at 1196. The court
stated further:
The requisite causal connection can be established ... by setting in motion a series of acts
by others, id. (alteration in original; internal quotation marks omitted), or by knowingly
refus[ing] to terminate a series of acts by others, which [the supervisor] knew or
reasonably should have known would cause others to inflict a constitutional injury,
Dubner v. City & Cnty. of San Francisco, 266 F.3d 959, 968 (9th Cir.2001). A
supervisor can be liable in his individual capacity for his own culpable action or inaction
in the training, supervision, or control of his subordinates; for his acquiescence in the
constitutional deprivation; or for conduct that showed a reckless or callous indifference to
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the rights of others. Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.1998)
(internal alteration and quotation marks omitted).
Id. at 1197. The court held that the Complaint met the requirements of Ashcroft v. Iqbal, __ U.S.
__, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), id. at 1197-1205, and that the standards for
supervisory liability had not been altered: We hold that the Supreme Court's decision in Iqbal
did not alter the substantive requirements for supervisory liability claims in an unconstitutional
conditions of confinement case under the Eighth and Fourteenth Amendments where deliberate
indifference is the applicable standard. Id. at 1205. Judge Trott dissented. Id. at 1205-10. See
also the discussion of this case under the Pleading topic below.
D. Title VII of the Civil Rights Act of 1964
1. Mixed Bases of Discrimination
Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 109-10, 108 Fair Empl.Prac.Cas.
(BNA) 769 (2d Cir. 2010), seemed to accept a combined age and sex discrimination claim, but
held it unnecessary to allege the combination explicitly where the plaintiff had shown both age
discrimination and sex discrimination, even if there were subsets of each group not suffering
from such discrimination.
Harris v. Maricopa County Superior Court, 631 F.3d 963, 111 Fair Empl.Prac.Cas.
(BNA) 503 (9th Cir. 2011), reversed the award of $125,000 in attorneys fees and expenses to
the prevailing defendant. In the course of examining plaintiffs Title VII race-and-sex hostile
environment claim, the court held that the lower court erred in considering a sexual hostile-
environment claim separately from a racial hostile-environment claim:
Although Harris made a single claim alleging that he had been subjected to a
hostile work environment on account of his race and gender together, the district court
treated this claim as two separate claims, one concerning race, one concerning gender. It
found that Harris's gender-based subclaim was frivolous because it was filed more than
300 days-the time limit imposed by Title VII-after the last act of discrimination alleged
by Harris that the district court categorized as gender-based. It did not determine that his
race-based subclaim was untimelyit apparently categorized acts within the 300 day
window as race basedbut that instead it was frivolous because he did not allege severe
and pervasive conduct based on his race, as would be required for relief under Title VII.
The district court erred in dividing the claim in two, and then treating half of it as
frivolous because of Title VII's statute of limitations and half as frivolous for a
substantive reason. Harris claimed that his work environment was hostile because of
discrimination against him as a black male, not that he was discriminated against as a
male and then suffered separate discrimination as a black person. It is perfectly plausible
that gender and race could together give rise to discrimination in the manner Harris
alleged: he claimed that false sexual harassment allegations were made against him and
that action was taken on these false charges because of the combination of his race and
gender. Prejudiced individuals have long promulgated a pernicious image of black men
as sexual predators; a view that they do not hold with respect to men of other racial
2467

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backgrounds or with respect to black women. See, e.g., Powell v. State of Alabama, 287
U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Courts, moreover, have properly shown
solicitude for claims based on the intersection of different categories of discrimination.
See Jefferies v. Harris Co. Community Action Assn, 615 F.2d 1025, 1032 (5th Cir.1980)
( discrimination against black fe-males[could] exist even in the absence of
discrimination against black men or white women).
Id. at 976-77.
2. Pregnancy Discrimination Prior to the PDA
AT & T Corp. v. Hulteen, __ U.S. __, 129 S.Ct. 1962, 173 L.Ed.2d 898 (2009), held that
AT&T did not have to give pension service credit to periods of time in which plaintiffs were not
working because of pregnancy discrimination occurring before the Pregnancy Discrimination
Act amendment to Title VII made such discrimination unlawful, because the denial of the service
credit was an aspect of a bona fide seniority system. The court held that the Lilly Ledbetter Fair
Pay Act did not alter this holding. For the reasons already discussed, AT & T's pre-PDA
decision not to award Hulteen service credit for pregnancy leave was not discriminatory, with the
consequence that Hulteen has not been affected by application of a discriminatory compensation
decision or other practice. 3(A), 123 Stat. 6. Id. at 1973.
3. Federal Employees Protected Against Retaliation
Bonds v. Leavitt, 629 F.3d 369, 384, 111 Fair Empl.Prac.Cas. (BNA) 171, 31 IER Cases
1078 (4th Cir. 2011), affirmed the dismissal of plaintiffs Title VII retaliation claim but held that
reading the statutory provisions together leaves us with little doubt that Congress incorporated
the protections against retaliation afforded to private employees by 2000e-3(a). See also the
discussion of this case in the section below on Retaliation, and the subsection on Protected
Conduct.
E. The Americans with Disabilities Act and Rehabilitation Act
1. Ministerial Exception
E.E.O.C. v. Hosanna-Tabor Evangelical Lutheran Church and School, 597 F.3d 769,
778-79, 22 A.D. Cases 1697 (6th Cir. 2010), reversed the grant of summary judgment to the
ADA defendant. The court held that the charging party was not a ministerial employee, and thus
that the defendant was not entitled to the ministerial exception. The court set forth the standards:
The question of whether a teacher at a sectarian school classifies as a ministerial
employee is one of first impression for this Court. However, the overwhelming majority
of courts that have considered the issue have held that parochial school teachers such as
Perich, who teach primarily secular subjects, do not classify as ministerial employees for
purposes of the exception. . . .

By contrast, when courts have found that teachers classify as ministerial
employees for purposes of the exception, those teachers have generally taught primarily
religious subjects or had a central role in the spiritual or pastoral mission of the church.
2468

7
. . .

(Citations omitted.) The court added: Perich spent approximately six hours and fifteen minutes
of her seven hour day teaching secular subjects, using secular textbooks, without incorporating
religion into the secular material. The court held that the fact that the charging party held the
title of commissioned minister was irrelevant, because her primary duties were secular.
Alcazar v. Corporation of the Catholic Archbishop of Seattle, 627 F.3d 1288, 110 Fair
Empl.Prac.Cas. (BNA) 1672, 17 Wage & Hour Cas.2d (BNA) 13 (9th Cir. 2010), held that the
plaintiff seminarian was precluded from recovery for unpaid overtime under the Washington
Minimum Wage Act because his religious duties made him subject to the ministerial exception to
the employment laws.
2. Disability
Side Effects of Medication: Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 187, 23
AD Cases 27 (3d Cir. 2010), affirmed the grant of summary judgment to the ADA and
Rehabilitation Act defendants. Plaintiff took medications for obesity and sleep apnea. Thus, we
must consider whether the meaning of disability under the ADA can encompass an impairment
resulting solely from the side effects of medication, whether or not the underlying health
problems are disabling. The court held that such a claim can be viable, but was subject to
substantial limitations:
We agree with the Seventh Circuit that side effects from medical treatment may
themselves constitute an impairment under the ADA. However, as the Seventh Circuit
noted, this category of disability claims is subject to limitation. For a treatment's side
effects to constitute an impairment under the ADA, it is not enough to show just that the
potentially disabling medication or course of treatment was prescribed or recommended
by a licensed medical professional. Instead, following the Christian test, the medication
or course of treatment must be required in the prudent judgment of the medical
profession, and there must not be an available alternative that is equally efficacious that
lacks similarly disabling side effects. Christian, 117 F.3d at 1052. The concept of
disability connotes an involuntary condition, and if one can alter or remove the
impairment through an equally efficacious course of treatment, it should not be
considered disabling.
The court held that plaintiff did not meet these standards. His doctor stopped the mediations
because of their side effects, showing that the medications were not medically necessary, the
two-month period from the onset of side effects to the discontinuance of the medications was too
short to be disabling, and there was no showing of the unavailability of equally efficacious
courses of treatment without such side effects.
Lee v. City of Columbus, __ F.3d __, 24 A.D. Cases 257, 2011 WL 611904 (6th Cir. Feb.
23, 2011), reversed a Rehabilitation Act injunction against City policies requiring employees
returning from sick leave to provide a physicians note indicating the nature of the illness. The
court explained at pp. *7-*8 why it disagreed with the Second Circuits decision in Conroy v.
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8
New York State Dep't of Correctional Services, 333 F.3d 88 (2d Cir. 2003), that such inquiries
are impermissible because they may tend to reveal the existence of a disability:
The Conroy court's holding in this regard has yet to be followed by any of our
sister circuits, and we decline to apply it to the present circumstances. First, we do not
find the requirement that an employee provide a general diagnosis-or in this case, an even
less specific statement regarding the nature of an employee's illnessto be tantamount
to an inquiry as to whether such employee is an individual with a disability or as to the
nature or severity of the disability under 12112(d)(4)(A). By painting with such a
broad brush, and finding suspect any routine or general inquiry simply because it may
tend to reveal an employee's disability, the Conroy court has unnecessarily swept within
the statute's prohibition numerous legitimate and innocuous inquiries that are not aimed
at identifying a disability. Obviously, asking an employee whether he is taking
prescription drugs or medication . . . or questions seek[ing] information about illnesses,
mental conditions, or other impairments [an employee] has or had in the past[,] trigger
the ADA's (and hence the Rehabilitation Act's) protections. . . . Asking an employee
returning to work to describe the nature of his illness, however, is not necessarily a
question about whether the employee is disabled.
This is particularly problematic in the present context, which involves a claim
brought under the Rehabilitation Act, not the ADA. The mere fact that an employer,
pursuant to a sick leave policy, requests a general diagnosis that may tend to lead to
information about disabilities falls far short of the requisite proof that the employer is
discriminating solely on the basis of disability. . . .
(Emphases in original; citations omitted.)
3. Qualified Individuals
Kinneary v. City of New York, 601 F.3d 151, 22 AD Cases 1803 (2d Cir. 2010), reversed
the judgment for the ADA plaintiff because he was not qualified. Plaintiff was a sludge boat
captain who was subject to random drug testing. He had paruresis, or shy bladder syndrome,
and could not pass enough urine for the drug test within the three-hour time limit. He was given
an accommodation of having the unsuccessful drug test vacated if he provided within five days
an adequate note from his physician, meeting stated criteria, but the physicians note fell short of
the criteria.
Comment on Kinneary: Too many cases founder because busy physicians are
unaware of the need for a note meeting legal criteria foreign to them because the criteria are not
medical. Employees should not lose their jobs because their physicians dash off something that
is not adequate for the purpose. One remedy is to work with local medical societies to educate
physicians, but another is for employers to use a bit more common sense when dealing with this
common problem, and call the physicians to get the necessary information orally or to impress
upon the physician the need to address the stated criteria.
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9
4. Reasonable Accommodation
Reasonable Accommodation in Getting to Work: Colwell v. Rite Aid Corp., 602 F.3d
495, 22 AD Cases 1857 (3d Cir. 2010), affirmed in part and reversed in part the grant of
summary judgment to the ADA defendant. Plaintiff was blind in one eye, could not safely drive
to work at night, had no public-transportation option available to her, and requested an
accommodation of a transfer to the day shift. Defendant refused, saying it would not be fair to
other employees. The court held that defendant had a duty to accommodate plaintiffs difficulty
in getting to work.
Essential Function of Job: Gratzl v. Office of Chief Judges of 12th, 18th, 19th, and 22nd
Judicial Circuits, 601 F.3d 674, 22 AD Cases 1865 (7th Cir. 2010), affirmed the grant of
summary judgment to the ADA defendant. The plaintiff court reporter had been hired for the
specialist control room position, which she could perform, but the structure of the job was
changed to require all court reporters to rotate through the courtrooms. Because of her
incontinence problem, plaintiff could not work in courtrooms without frequent disruption of the
proceedings. The court stated at 680: Gratzl cannot prove that she is qualified for her current
job simply by citing evidence that she was qualified for a previous job, with different essential
functions, that has been eliminated. The court held: An employer need not create a new job or
strip a current job of its principal duties to accommodate a disabled employee. . . . Nor is there
any duty to reassign an employee to a permanent light duty position. Id. (citations omitted).
The court also held that her complaint should be dismissed because she rejected the defendants
offer of accommodation which the court held exceeded the requirements of the ADA.
F. Family and Medical Leave Act
1. Evidence Showing a Serious Health Condition
Schaar v. Lehigh Valley Health Services, Inc., 598 F.3d 156, 161, 15 Wage & Hour
Cas.2d (BNA) 1677 (3d Cir. 2010), vacated the grant of summary judgment to the FMLA
defendant. The court held:
Contrary to the Fifth and Ninth Circuits, however, we do not find lay testimony,
by itself, sufficient to create a genuine issue of material fact. Some medical evidence is
still necessary to show that the incapacitation was due to the serious health condition.
29 C.F.R. 825.114. This does not place an undue burden on employees because they
must present some medical evidence anyway to establish the inability to perform the
functions of the position. Id. 825.115. In contrast, allowing unsupported lay testimony
would place too heavy a burden on employers to inquire into an employee's eligibility for
FMLA leave based solely on the employee's self-diagnosed illness. For these reasons, we
hold that an employee may satisfy her burden of proving three days of incapacitation
through a combination of expert medical and lay testimony.
2. Rejecting a Fruit of the Poisonous Tree Argument
Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1241-42, 15 WH Cases 2d 1857
(11th Cir. 2010), affirmed the grant of summary judgment to the FMLA defendant. Plaintiff
was demoted while on maternity leave, as a result of an employer inquiry that only occurred
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because plaintiff was on maternity leave. The court held that the employer could rely on such
information:
Essentially, Schaaf's arguments rely on one basic premise: because GSK learned
of Schaaf's hostile temperament, ineffective management practices, and administrative
ineptitude while she was on leave, it follows that GSK would not have discovered these
derelictions had Schaaf not taken maternity leave. Thus, Schaaf concludes, her maternity
leave caused her demotion because, but for the leave, GSK would have had no reason to
demote her.

This argument, however, is legally incorrect and logically unsound. In an FMLA
interference case, courts examine not whether the FMLA leave was the but-for cause of
an employee's discharge or demotion, but rather whether it was the proximate cause.
(Emphasis in original; footnote omitted.)
G. Employment Status
Solis v. Laurelbrook Sanitarium and School, Inc., __ F.3d __, 2011 WL 1584356 (6th
Cir. April 28, 2011 (No. 09-6128), affirmed the lower courts rejection of the Secretary of
Labors claim that students were employees and the defendant engaged in impermissible use of
child labor. The court rejected the Wage & Hour Divisions six-part test of employment status in
training programs because, stating at p. *7:
We find the WHD's test to be a poor method for determining employee status in a
training or educational setting. For starters, it is overly rigid and inconsistent with a
totality-of-the-circumstances approach, where no one factor (or the absence of one factor)
controls. See Rutherford Food, 331 U.S. at 730 (We think, however, that the
determination of the relationship does not depend on such isolated factors but rather upon
the circumstances of the whole activity.). Moreover, at least one court has found the
test's all-or-nothing approach inconsistent with prior WHD interpretations and opinions
endorsing a flexible approach, thereby diminishing any persuasive force the test might be
entitled to under Skidmore. See Parker Fire, 992 F.2d at 1026. Furthermore, the test is
inconsistent with Portland Terminal itself, which, as outlined below, suggests that the
ultimate inquiry in a learning or training situation is whether the employee is the primary
beneficiary of the work performed. While the Secretary's six factors may be helpful in
guiding that inquiry, the Secretary's test on the whole is not.
The court added at p. *11:
To conclude, we hold that the proper approach for determining whether an
employment relationship exists in the context of a training or learning situation is to
ascertain which party de-rives the primary benefit from the relationship. Factors such as
whether the relationship displaces paid employees and whether there is educational value
derived from the relationship are relevant considerations that can guide the inquiry.
Additional factors that bear on the inquiry should also be considered insofar as they shed
light on which party primarily benefits from the relationship. The district court applied
2472

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such a test. It did not err by doing so.
H. Whistleblower Protections
Graham County Soil and Water Conservation Dist. v. U.S. ex rel. Wilson, __ U.S. __, 130
S.Ct. 1396, 176 L.Ed.2d 225 (2010), held that the bar on filing qui tam actions under the False
Claims Act where the relators information has previously been publicly disclosed in
administrative proceedings applies to State and local, as well as Federal, administrative reports,
hearings, audits and investigations.
Bonds v. Leavitt, 629 F.3d 369, 381-82, 111 Fair Empl.Prac.Cas. (BNA) 171, 31 IER
Cases 1078 (4th Cir. 2011), reserved the question whether it would permit an official duties
exception to the protections of the WPA.
ACLU v. Holder, __ F.3d __, 2011 WL 1108252 (4th Cir. March 28, 2011) (No. 09-
2086) (4th Cir. 2011), held that the seal on a relators False Claims Act complaint, while the
government decided whether to go forward with the claim, does not violate the First
Amendment.
IV. Application of State Laws Against Discrimination
Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 378, 108 Fair Empl.Prac.Cas.
(BNA) 795 (D.C. Cir. 2010), reversed the grant of summary judgment to defendant on plaintiffs
claims under the New York Human Rights Law. In a prior appeal, the D.C. Circuit had held
that, since defendant was headquartered in New York and the case involved promotions to
partner, the plaintiffs were entitled to the reasonable inference that the alleged policy of
promoting only younger persons to partner had been made in New York, and thus that the New
York Human Rights Law covered plaintiffs, although they were not residents of New York and
did not work in New York. On remand, the lower court dismissed the New York Human Rights
Law claim again. In this latest decision, the court stated: PwC says Schuler does not control
because it addressed only PwC's adoption and maintenance of a discriminatory policy, not the
discrete decision[ ] not to admit [Schuler] to partnership. To which we say: Pettifoggery and
piffle!

V. Theories and Proof
A. The Inferential Model
1. Caution
Caution to Be Sensible: Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 108
Fair Empl.Prac.Cas. (BNA) 1766, 93 E.P.D. 43,863 (4th Cir. 2010), reversed the grant of
summary judgment to the Title VII sex discrimination defendant. The court cautioned at 294-95:
Notwithstanding the intricacies of proof schemes, the core of every Title VII case remains the
same, necessitating resolution of the ultimate question of discrimination vel non. . . . As the
Supreme Court has explained, [t]he ultimate question in every employment discrimination case
involving a claim of disparate treatment is whether the plaintiff was the victim of intentional
discrimination. . . . Thus, [c]ourts must . . . resist the temptation to become so entwined in the
2473

12
intricacies of the [McDonnell Douglas] proof scheme that they forget that the scheme exists
solely to facilitate determination of the ultimate question of discrimination vel non. Id. at 295.
In holding that a jury could reasonably reject defendants explanation for firing plaintiff because
of a fully-healed ankle injury, the court stated:
Yet Old Dominion did not allow Merritt to return to work. It did not even leave
open the possibility that she could return to work at a later date, for example by providing
additional time for recovery or by waiting for Merritt's next doctor visit to resolve
ongoing concerns about the injury's effect on job performance. Instead, Old Dominion
deemed it necessary to order a full-blown fitness test to assess the effects of an injury that
was neither severe nor long-lasting and then used the results of that PAT to claim Merritt
was physically unable to perform the job she had been physically performing for months
prior to her minor injury. In doing so, Old Dominion terminated a good employee who,
pre-injury, performed her job ably and without complaint and who, post-injury, was both
willing and able to report to this same job for work. These facts, if believed, would allow
a trier of fact to think Old Dominion was simply looking for a reason to get rid of Merritt.
Id. at 296. The court also relied on the fact that the PAT was designed to test the entire body, not
just the injured ankle. The court also found reason to doubt that the asserted policy of requiring
a PAT even existed: First, the policy's existence is drawn into question by the conspicuous lack
of evidence in the record concerning it. As both parties agree, the policy has never been
memorialized in writing. And while an informal policy is no less a policy, it is curious that no
one at the company seemed to be familiar with even an informal policy. Of eight Old Dominion
employees asked about the matter, all eight denied ever having heard of the policy. Id. at 297-
98. At a later point in the decision, the court observed: It was only late in the game, on appeal
and perhaps not until oral argument before this court, that the policy really took shape. Id. at
298. The court observed: Evidence of a good employee record combines with evidence of an
impermissible company attitude to form a lethal concoction. Id. at 302.
2. Plaintiff Need Not Prove an Unlawful Motive Was the Sole Reason
Papelino v. Albany College of Pharmacy of Union University, 633 F.3d 81 (2d Cir.
2011), reversed in part and affirmed in part the grant of summary judgment against the Title IX
student plaintiffs. The court described the case succinctly at 84: In this case, plaintiff-appellant
Daniel Papelino alleges that he was sexually harassed by a professor when he was enrolled as a
student at the defendant-appellee Albany College of Pharmacy (the College). He complained
to the Associate Dean of Student Affairs. Shortly thereafter, the College accused Papelino and
his two roommates, plaintiff-appellant Michael Yu and plaintiff Carl Basile, of cheating on
exams. All three were disciplined, and Papelino and Basile were expelled. The court stated at
93: In any case, for Papelino to recover on his retaliation claim, he need only establish that
impermissible retaliation was one motive behind the initiation of the Honor Code charges against
himnot that it was the sole reason that any of the Panel members voted to find him guilty of
cheating. . . . From the evidence adduced, a reasonable jury surely could reach such a
conclusion.
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13
3. Reverse Discrimination
Stockwell v. City of Harvey, 597 F.3d 895, 901, 108 Fair Empl.Prac.Cas. (BNA) 1153
(7th Cir. 2010), affirmed the grant of summary judgment to the defendant. The court explained
its special articulation of the prima facie case when white plaintiffs are claiming discrimination:
The analysis of Title VII claims brought under McDonnell Douglas proceeds in
three stages. First, the plaintiff must establish a prima facie case. Ordinarily, the four
elements of the prima facie case in a failure-to-promote context are that the plaintiff (1)
was a member of a protected class; (2) that he was qualified for the position; (3) that he
was rejected for the position; and (4) that the position was given to a person outside the
protected class who was similarly or less qualified than he. . . . In a reverse discrimination
case such as this one, we have replaced the first element with a requirement that the
plaintiff show background circumstances suggesting that the employer discriminates
against the majority. . . .
(Citations omitted.)
4. Adverse Employment Actions
Pardo-Kronemann v. Donovan, 601 F.3d 599, 108 Fair Empl.Prac.Cas. (BNA) 1734
(D.C. Cir. 2010), reversed in part the grant of summary judgment against the Title VII
retaliation plaintiff. The court held that a lateral transfer with no loss of title, pay, status, or
benefits can be an adverse employment action where the duties are different and the duties of the
new position are less complex and challenging than those of the old position. Senior Judge
Williams dissented.
Maclin v. SBC Ameritech, 520 F.3d 781, 102 Fair Empl.Prac.Cas. (BNA) 1839, 20 AD
Cases 712 (7th Cir. 2008), affirmed the grant of summary judgment to defendant on plaintiffs
Title VII claims. The court held at 788 that denial of a discretionary bonus is not an adverse
employment action. The court also held that plaintiffs change in job title after her return from
leave was not an adverse employment action. The court stated at 789: An adverse employment
action must involve a material, substantive change in an employee's pay and responsibilities. . . .
An employee has not suffered an adverse employment action if her title changes but her position
remains the same in terms of responsibilities, salary, benefits and opportunities for promotion.
. . . Even a change in title that deprives an employee of prestige is insufficient if it lacks more
substantive effect. (Citations omitted.)
Comment of Richard Seymour on Maclin v. SBC Ameritech: The Seventh Circuit
standard would result in immunizing an employer that gave only discretionary bonuses, but had a
discount factor for race and sex under which the bonus as cut in half if it was to be awarded to a
woman, and cut by three-quarters if it was to be awarded to an African-American. While one
can understand the desire of the judiciary to resolve only issues they consider of importance, this
rule cannot be squared with the language of Title VII. There is no de minimis exception in the
statute.
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14
5. Adequacy of Employers Nondiscriminatory Reason
Schandelmeier-Bartels v. Chicago Park District, 634 F.3d 372, 111 Fair Empl.Prac.Cas.
(BNA) 739, 78 Fed.R.Serv.3d 1023 (7th Cir. 2011), reversed the district courts grant of
judgment as a matter of law, and reinstated the jury verdict on liability for the Caucasian Title
VII racial discrimination plaintiff. Defendant attempted to blame plaintiffs termination on the
admitted struggles she had had with some aspects of the job. However, the court held that the
jury could reasonably infer that the demonstration of racial bias by her African-American
supervisor expressed the true reason for her termination. The court stated at p. *2: At trial, the
Park District took pains to prove to the jury that Schandelmeier was far from a perfect employee.
She struggled with some of the administrative tasks required in her job, and Adams documented
those issues in several memos to Schandelmeier. Those memos and other examples of
Schandelmeier's administrative failings were presented to the jury. But Schandelmeier did not
claim to be a perfect employee, and perfection is not a requirement for protection under Title
VII.
6. Pretext
a. Definitions
Radentz v. Marion County, __ F.3d __, 2011 WL 1237931, 111 Fair Empl.Prac.Cas.
(BNA) 1676 (7th Cir. April 5, 2011) (No. 10-1523), reversed the grant of summary judgment to
the 1983 defendants. Plaintiffs were two white pathologists and their company, who had been
performing autopsies under contract to Marion County. They alleged that their contract was
terminated because defendants wished to replace them with African-Americans, not because of
the cost of the contract. The court stated:
In order to demonstrate that the reason for the termination was pretextual, the
plaintiffs must demonstrate that the nondiscriminatory reason was dishonest and that the
defendants' true reason was based on discriminatory intent. An employer's justification
may be considered pretextual where the plaintiff demonstrates that it had no basis in fact,
it did not actually motivate the decision to terminate employment, or it was insufficient to
motivate that decision. . . . The focus for the court is not whether the defendants' decision
was a wise one, but whether it was honestly believed. If a reasonable factfinder would
be compelled to believe [the defendants'] explanation, then the [defendants are] entitled
to summary judgment. . . .
Stockwell v. City of Harvey, 597 F.3d 895, 901-02, 108 Fair Empl.Prac.Cas. (BNA) 1153
(7th Cir. 2010), affirmed the grant of summary judgment to the defendant. The court explained
its articulation of the requirements of showing pretext:
In order to show pretext, a plaintiff must show that (1) the employer's non-
discriminatory reason was dishonest and (2) the employer's true reason was based on a
discriminatory intent. . . . If the plaintiff uses indirect evidence to meet his burden, he
must show that the employer's reason is not credible or factually baseless. . . . The
plaintiff also must provide evidence that supports the inference that the real reason was
discriminatory. . . . Although indirect proof of pretext is permissible, we must remember
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15
that, even if the business decision was unreasonable, pretext does not exist if the
decisionmaker honestly believed the nondiscriminatory reason. . . . This is because courts
are not superpersonnel department[s] charged with determining best business practices.
. . . Subjective evaluations of each candidate are entirely consistent with Title VII. . . .
b. Shifting Explanations
Pardo-Kronemann v. Donovan, 601 F.3d 599, 108 Fair Empl.Prac.Cas. (BNA) 1734
(D.C. Cir. 2010), reversed in part the grant of summary judgment against the Title VII
retaliation plaintiff. The decision-maker first admitted knowledge of plaintiffs prior EEO
complaints, and later denied knowledge of the complaints. He defended the transfer by saying
that plaintiff would be happier and more productive in the new office and that the office was so
important they needed A team people there, but also said that he would not have transferred
plaintiff if he had known about the EEO complaints because he would never send a problem
employee to another office. The court held that the combination of the decision-makers deceit
as to his knowledge and admission that prior EEO complaints would make a differences in his
decisions, permitted a jury to infer that the decision-maker was not trying to assemble an A
team in the new office, was not trying to make the plaintiff happier and more productive, and
was retaliating. The court also relied on the defendants failure to discuss the transfer with
plaintiff, the fact that there was no position description for the new position, and the fact that
plaintiffs new manager could not get an explanation for the transfer. Senior Judge Williams
dissented.
c. Employers Good-Faith Error Does Not Constitute Pretext
Bonds v. Leavitt, 629 F.3d 369, 386, 111 Fair Empl.Prac.Cas. (BNA) 171, 31 IER Cases
1078 (4th Cir. 2011), affirmed the dismissal of plaintiffs Title VII claim of discriminatory
termination. The court explained: Peterson articulated at length the reasons that he sustained
Moore's recommendation that Bonds be terminated. Bonds does not seriously argue that
Peterson did not believe his reasons warranted her termination. In fact, her only significant
argument regarding her unauthorized disclosure of agency information was that the disclosure
was uncovered only as the result of an improper investigation. . . . Neither of these points is of
any help to Bonds. Even if these investigations were improper or substandard, that does little to
help her establish that the reasons given for her termination were not the actual reasons, and it
certainly does not give rise to a reasonable inference that her race or gender was the real reason
for her termination.
d. Defendants Nonsensical Explanation Can Show Pretext
Radentz v. Marion County, __ F.3d __, 2011 WL 1237931, 111 Fair Empl.Prac.Cas.
(BNA) 1676 (7th Cir. April 5, 2011) (No. 10-1523), reversed the grant of summary judgment to
the 1983 defendants. Plaintiffs were two white pathologists and their company, who had been
performing autopsies under contract to Marion County. They alleged that their contract was
terminated because defendants wished to replace them with African-Americans, not because of
the cost of the contract. The contract allowed plaintiffs to perform autopsies for other counties at
the Marion County facilities, and obligated Marion County to provide supplies for all autopsies
conducted there. The court held that there was adequate evidence that defendants were
2477

16
legitimately concerned with the cost of those supplies, but that it was nonsensical to say that
this could have motivated defendants to exercise the contract clause allowing termination
without cause on six months notice, because the contract provision allowing out-of-county
autopsies also had a six-month trigger:
Those provisions indeed authorize the use of County facilities for out-of-county
autopsies. Provision K also, however, provides for the termination of that authority upon
six months' notice. Although the plaintiffs note in their opening brief that the defendants
had that ability to end the extra-county autopsies, the defendants do not explain why that
option was not exercised. At oral argument, counsel for the defendants asserted that they
did not exercise that option because they feared that if they were to do so, the plaintiffs
would find the contract too unprofitable and would exercise their option to terminate the
contract. Essentially, the defendants are asserting that they terminated the contract
because if they just modified it the plaintiffs might terminate it. That is nonsensical.
e. Business Judgment
Radentz v. Marion County, __ F.3d __, 2011 WL 1237931, 111 Fair Empl.Prac.Cas.
(BNA) 1676 (7th Cir. April 5, 2011) (No. 10-1523), reversed the grant of summary judgment to
the 1983 defendants. See the above description of this case. The court rejected defendants
argument that the court could not look closely at its proffered nondiscriminatory explanation
which the court termed nonsensical"because that would interfere with defendants business
judgment. It explained that its inquiry went not into whether defendants were making sound
decisions, but whether they were really motivated by the reason they gave:

In their briefs to this court, the defendants appear to believe that it is not our
province to inquire as to why they chose to terminate rather than modify the contract, and
that we cannot examine the wisdom of their business decisions. They further argue that
the plaintiffs brought a discrimination complaint based on the termination, not based on a
failure to renegotiate the contract. We do not examine the wisdom of business decisions,
but we do consider whether the asserted justification for the termination was honestly-
held. That determination is relevant to the claim of discriminatory termination. Here, the
defendants consistently have maintained that they were pleased with the quality of the
plaintiffs' services, and that they wished to retain the services of the plaintiffs, but that
they could not do so because the out-of-county autopsies rendered the contract too
expensive. They failed, however, to utilize the contract provision that would have
directly met both of those professed desiresit would have eliminated the extra expense
while retaining the services of the plaintiffs. Nor could the requirement of six months'
notice have been a factor in that choice, because in terminating the contract, the
defendants relied on the provision for terminating without cause, and gave the six
months' notice required by that provision. The failure to exercise the right under
provision K to eliminate the troublesome expenses, and to instead terminate the contract,
casts doubt on whether the expense was actually the reason for the termination.
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17
7. Defndants Failure to Exercise Normal Business Judgment
Radentz v. Marion County, __ F.3d __, 2011 WL 1237931, 111 Fair Empl.Prac.Cas.
(BNA) 1676 (7th Cir. April 5, 2011) (No. 10-1523), reversed the grant of summary judgment to
the 1983 defendants. Plaintiffs were two white pathologists and their company, who had been
performing autopsies under contract to Marion County. They alleged that their contract was
terminated because defendants wished to replace them with African-Americans, not because of
the cost of the contract. Defendants hired an African-American, Dr. Carter, to replace them.
The court held that the non-businesslike manner of her hiring helped to show retext:

Adding to the impact of that progression of events is the manner in which the
hiring decision was made. There is evidence indicating that no national search was
undertaken to fill the position and Ballew acknowledged that to her knowledge the
position was not even posted with the National Association of Medical Examiners.
Ballew indicated that Dr. Carter was the only individual interviewed in person for the
position of Chief Forensic Pathologist. Evidence further indicates that the Coroner's
Office did not receive letters of recommendation for Dr. Carter until after she was offered
the position. The sequence of events, and the manner in which it occurred, further
indicates that the decision to terminate the contract rather than exercise the provision K
rights was race-based.
* * *
Finally, the evidence indicated that the termination of the defendants' contract and
the hiring of Dr. Carter did not result in any financial benefit. Moreover, in response to
questioning at deposition, Ballew stated that she had conducted an analysis of forensic
pathology services prior to terminating the Forensic Pathology contract, and that the
analysis did not lead her to conclude that terminating Forensic Pathology's contract
would save the county money. The district court again dismissed the evidence of the lack
of financial savings based on the caution that we should not second-guess the defendants'
legitimate business decisions. That is an important proviso, but the financials are
nevertheless relevant to the question as to whether the cost of the contract was the true
reason for its termination. The lack of monetary savingsor even of an attempt to
achieve monetary savings with Dr. Carter's contractis relevant to the determination as
to whether the need for cost savings was the driving force in the decision to terminate the
contract.
8. Timing
Schandelmeier-Bartels v. Chicago Park District, 634 F.3d 372, 111 Fair Empl.Prac.Cas.
(BNA) 739, 78 Fed.R.Serv.3d 1023 (7th Cir. 2011), reversed the district courts grant of
judgment as a matter of law, and reinstated the jury verdict on liability for the Caucasian Title
VII racial discrimination plaintiff. Plaintiff observed what appeared to her to be an aunt striking
a small child with a belt, and made an official report of the incident. Her African-American
supervisor launched into a tirade about this being a standard type of discipline among African-
American families, and wrote a report emphasizing plaintiffs problems at work, accusing her of
making a baseless report, and omitting her own racial tirade. Plaintiff was subsequently fired.
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Defendant contended that one of the two possible decisionmakers could not have terminated
plaintiff because of the racist views of the biased supervisor, because she did not know of the
incident that gave rise to the expression of those views plaintiffs complaint until after the
decision to terminate plaintiff. The court rejected this argument, finding that the jury could infer
earlier knowledge from the reference to an earlier conversation in the last straw e-mail sent by
the biased supervisor to the possible decisionmaker. Id. at p. *7. The court similarly rejected
defendants argument that plaintiffs termination had been set in motion prior to the incident:
If McDonald really was the decisionmaker, and if her decision was already made
on July 24th, it would be more difficult to conclude that Adams's exhibition of racism on
July 31st tainted McDonald's already-made decision to fire Schandelmeier. The most
basic problem for the Park District is that the evidence does not point consistently in that
direction. McDonald herself described the decision as a joint one (and one in which
Adams certainly had input), but the supervisory group had not reached a joint
decision about Schandelmeier's employment as of July 24th. Both Williams and Adams
testified that they had no idea that Schandelmeier would be terminated until she was
actually terminated on August 1st. If McDonald had actually reached a decision before
thenespecially the joint decision she described in her testimonythe jury could
reasonably infer that she would have informed Schandelmeier's direct supervisors
Williams and Adams, who supposedly participated in the joint decisionof her
decision. Also, the language McDonald used in her CAM request e-mail is not absolute
and does not state that any decisionhers or anyone else'shad been made. The jury
could have reasonably read McDonald's message as only a request for information in case
a decision was made to terminate Schandelmeier. The jury had reasonable grounds for
discounting McDonald's testimony that her mind was made up on July 24th and that her
mind was the only one that counted.

Id.
B. Mixed Motives
1. The Decision in Gross
Gross v. FBL Financial Services, Inc., __ U.S. __, 129 S. Ct. 2343, 174 L. Ed. 2d 119,
106 Fair Empl.Prac.Cas. (BNA) 833 (2009), held that the Age Discrimination in Employment
Act does not allow mixed-motives analysis. In a 5-4 decision, the Court held that an ADEA
plaintiff must establish that age was the but for cause of the employment action at issue. The
Court explained at 2350-51:
Our inquiry therefore must focus on the text of the ADEA to decide whether it
authorizes a mixed-motives age discrimination claim. It does not. Statutory
construction must begin with the language employed by Congress and the assumption
that the ordinary meaning of that language accurately expresses the legislative purpose.
. . . . The ADEA provides, in relevant part, that [i]t shall be unlawful for an employer ...
to fail or refuse to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's age. 29 U.S.C. 623(a)(1) (emphasis added).
2480

19
The words because of mean by reason of: on account of. 1 Webster's Third
New International Dictionary 194 (1966); see also 1 Oxford English Dictionary 746
(1933) (defining because of to mean By reason of, on account of (italics in
original)); The Random House Dictionary of the English Language 132 (1966) (defining
because to mean by reason; on account). Thus, the ordinary meaning of the ADEA's
requirement that an employer took adverse action because of age is that age was the
reason that the employer decided to act. See Hazen Paper Co. v. Biggins, 507 U.S.
604, 610, 113 S. Ct. 1701, 123 L. Ed. 2d 338 (1993) (explaining that the claim cannot
succeed unless the employee's protected trait actually played a role in [the employer's
decisionmaking] process and had a determinative influence on the outcome (emphasis
added)). To establish a disparate-treatment claim under the plain language of the ADEA,
therefore, a plaintiff must prove that age was the but-for cause of the employer's
adverse decision. See Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. ----, ----, 128
S.Ct. 2131, 2141-2142, 170 L.Ed.2d 1012 (2008) (recognizing that the phrase, by reason
of, requires at least a showing of but for causation (internal quotation marks omitted));
Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63-64, and n. 14, 127 S.Ct. 2201, 167
L.Ed.2d 1045 (2007) (observing that [i]n common talk, the phrase based on indicates a
but-for causal relationship and thus a necessary logical condition and that the statutory
phrase, based on, has the same meaning as the phrase, because of (internal quotation
marks omitted)); cf. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton
on Law of Torts 265 (5th ed. 1984) (An act or omission is not regarded as a cause of an
event if the particular event would have occurred without it).
It follows, then, that under 623(a)(1), the plaintiff retains the burden of
persuasion to establish that age was the but-for cause of the employer's adverse action.
Indeed, we have previously held that the burden is allocated in this manner in ADEA
cases. . . . And nothing in the statute's text indicates that Congress has carved out an
exception to that rule for a subset of ADEA cases. Where the statutory text is silent on
the allocation of the burden of persuasion, we begin with the ordinary default rule that
plaintiffs bear the risk of failing to prove their claims. . . . We have no warrant to depart
from the general rule in this setting.
(Footnote and citations omitted.)
2. Gross Does Not Bar ADEA Pattern and Practice Claims
Thompson v. Weyerhaeuser Co., 582 F.3d 1125, 1131 (10th Cir. 2009), rejected the
argument that Gross required the overruling of the Tenth Circuits pattern-and-practice ADEA
decision in Thiessen v. General Electric Capital Corp., 267 F.3d 1095 (10th Cir. 2001), cert.
denied, 536 U.S. 934 (2002). Thompson explained:
. . . Gross does not involve the pattern-or-practice procedure at issue here.
Moreover, the Court relied on the fact that Congress had amended Title VII to expressly
adopt a "motivating factor" standard for discrimination rather than a "but for" inquiry.
Here, Weyerhaeuser cannot point to an analogous difference in the language of Title VII
and the ADEA that establishes that the pattern-or-practice framework is proper under one
anti-discrimination statute but not the other.
2481

20
As we have noted, Title VII does contain a brief reference to pattern-or-practice
claims filed by the Attorney General, see 42 U.S.C. 2000e-6(a), while the ADEA
contains no similar provision. However, the pattern-or-practice burden shifting
framework at issue here is mentioned in neither statute. Instead, that framework has been
established by the courts. . . . Thus, in our view, the Supreme Court's decision in Gross
does not overrule circuit precedent that authorizes the application of the pattern-or-
practice framework in ADEA cases.
(Citations omitted.)
3. Gross and the Same Decision Defense
Mora v. Jackson Memorial Foundation, Inc., 597 F.3d 1201, 108 Fair Empl.Prac.Cas.
(BNA) 914 (11th Cir. 2010) (per curiam), grant of summary judgment to defendant in a mixed-
motives ADEA case because of the same decision defense, holding that Gross made both the
mixed-motives approach and the same-decision defense inapplicable, and holding that there was
enough circumstantial evidence of discrimination to preclude summary judgment.
4. 42 U.S.C. 1983 First Amendment Claims Cannot Involve Mixed
Motives
Fairley v. Andrews, 578 F.3d 518, 525-26, 29 IER Cases 1050 (7th Cir. 2009), petition
for certiorari filed, 78 USLW 3375 (U.S., Dec. 21, 2009) (No. 09-745), held that mixed motives
treatment is not available in 1983 cases based on the First Amendment, or in any other case
under Federal law where the statute does not specifically provide for mixed-motives treatment.
5. 42 U.S.C. 1981 Claims Can Involve Mixed Motives
Brown v. J. Kaz, Inc., 581 F.3d 175, 182, 107 Fair Empl.Prac.Cas. (BNA) 229 (3d Cir.
2009), strongly suggested in dictum that mixed-motives analysis should continue to be available
in 1981 cases:
In their written responses and at oral argument, the parties agreed that Gross, which
rejected the application of the Price Waterhouse framework to claims under the Age
Discrimination in Employment Act ("ADEA"), has no impact on this case. Accordingly,
we need not decide the impact, if any, of Gross on section 1981 here. We note only that
Gross focused on the statutory text of the ADEA and concluded that Congress' use of the
phrase "because of ... age" meant that "the plaintiff retains the burden of persuasion to
establish that age was the 'but-for' cause of the employer's adverse action." . . . Section
1981, however, does not include the "because of" language used in the ADEA. Instead,
section 1981 more broadly provides that "all persons ... shall have the same right ... to
make and enforce contracts ... as is enjoyed by white citizens." 42 U.S.C. 1981(a)
(emphasis added). Indeed, use of the Price Waterhouse framework makes sense in light
of section 1981's text. If race plays any role in a challenged decision by a defendant, the
plain terms of the statutory text suggest the plaintiff has made out a prima facie case that
section 1981 was violated because the plaintiff has not enjoyed "the same right" as other
similarly situated persons. However, if the defendant then proves that the same decision
2482

21
would have been made regardless of the plaintiff's race, then the plaintiff has, in effect,
enjoyed "the same right" as similarly situated persons.
(Citations omitted.)
6. Pre-ADAAA ADA Claims Cannot Involve Mixed Motives
Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962, 22 A.D. Cases 1379 (7th Cir.
2010), held that under the pre-ADAAA version of the ADA, mixed-motives treatment is
unavailable because the liability clause of the ADA uses the same because of formulation as in
the ADEA, and there is no cross-reference in the body of the ADA itself to mixed-motives
treatment: Thus, in the absence of a cross-reference to Title VII's mixed-motive liability
language or comparable stand-alone language in the ADA itself, a plaintiff complaining of
discriminatory discharge under the ADA must show that his or her employer would not have
fired him but for his actual or perceived disability; proof of mixed motives will not suffice.
7. Post-ADAAA ADA Claims Still Open for Decision
Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962 n.1, 22 A.D. Cases 1379 (7th
Cir. 2010), stated in dictum that it was not necessary to decide whether the on the basis of
liability language in the ADAAA will allow mixed-motives treatment in a case subject to the
ADAAA.
8. FMLA Retaliation Claims Can Involve Mixed Motives
Hunter v. Valley View Local Schools, 579 F.3d 688, 691-92, 15 Wage & Hour Cas.2d
(BNA) 321 (6th Cir. 2009), held that mixed-motives treatment remains available under the
FMLA for retaliation claims, because the regulations make clear that using FMLA leave as a
negative factor is enough for liability.
9. LMRDA Claims Cannot Involve Mixed Motives
Serafinn v. Local 722, 597 F.3d 908, 187 L.R.R.M. (BNA) 3594 (7th Cir. 2010), held
that mixed-motive claims cannot be brought under the Labor Management Reporting and
Disclosure Act.
C. Constructive Discharge
1. Required Element: Intent to Force the Employee to Quit
Trierweiler v. Wells Fargo Bank, __ F.3d __, 2011 WL 1327991 (8th Cir. April 8, 2011)
(No. 10-1343), affirmed the grant of summary judgment to the Title VII defendant. The court
stated: To prove a claim of constructive discharge under Title VII, Trierweiler must show that
a reasonable person would have found the conditions of employment intolerable and that [Wells
Fargo] either intended to force [her] to resign or could have reasonably foreseen that [she] would
do so as a result of its actions. Smith v. Fairview Ridges Hosp., 625 F.3d 1076, 1087 (8th Cir.
2010). Plaintiff had used most of her personal time off, and had been warned about missing
more work. She then went on maternity leave, and did not return. The court held that she failed
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22
to give the defendant a chance to work something out to accommodate her need to take time off
for maternity, and never contacted Human Resources.
Lisdahl v. Mayo Foundation, 633 F.3d 712, 190 L.R.R.M. (BNA) 2325 (8th Cir. 2011),
affirmed the grant of summary judgment to the USERRA defendant. The court held at p. *4 that
an employers intention to force the employee to quit is an element of a USERRA constructive-
discharge claim. A constructive discharge occurs when an employer deliberately renders an
employee's working conditions intolerable with the intent of forcing the employee to leave the
employment. . . . A plaintiff can satisfy the intent requirement by demonstrating that the
resignation was a reasonably foreseeable consequence of the employer's actions. Id. The
intolerability of the working conditions is judged by an objective standard; conditions are
considered intolerable if a reasonable employee would find them as such. Id. The court held
that there was no evidence of anti-military bias, let alone evidence of an intent to force plaintiff
to quit. The evidence showed at best a personality conflict between Johnson and Lisdahl.
However, as in Title VII, [p]etty slights and minor annoyances in the workplace, as well as
personality conflicts and snubs by co-workers, are not actionable. Id. at p. *5.
Comment of Richard Seymour on Requiring Proof of the Employers Intent to
Force the Employee to Quit: This standard has previously been adopted by some other
Circuits, such as the Sixth Circuit in Ford v. General Motors Corp., 305 F.3d 545, 554, 89 Fair
Empl.Prac.Cas. (BNA) 1721 (6th Cir. 2002). Plaintiffs lawyers should resist this pernicious
standard, because it has no logical relationship to the law. A simple hypothetical can make it
clear to the Court: An employer can intentionally harass an employee mercilessly because of
the employees gender, race, or religion, or intentionally tolerate such harassment by others,
because the employer finds it amusing or because it allows the employer to indulge in hostility
against a person with hated characteristics. The employer may not want the employee to leave,
because it wants to continue the harassment. Can any reasonable person doubt, however that
the harassment may reach a point at which any reasonable employee would be compelled to
leave?
2. Employees Who Bolt Too Soon Have No Claim
Lisdahl v. Mayo Foundation, 633 F.3d 712, 190 L.R.R.M. (BNA) 2325 (8th Cir. 2011),
affirmed the grant of summary judgment to the USERRA defendant. The court held at p. *5:
Further, constructive discharge claims fail as a matter of law where the employee
has not given the employer a reasonable opportunity to correct the intolerable condition
before the employee quits. See Anda v. Wickes Furniture Co., 517 F.3d 526, 534 (8th
Cir.2008); Knowles, 142 F.3d at 1086 (noting that an employee's duty to act in a
reasonable manner includes an obligation not to assume the worst and jump to
conclusions); Tidwell v. Meyer's Bakeries, Inc., 93 F.3d 490, 494 (8th Cir.1996) (An
employee who quits without giving his employer a reasonable chance to work out a
problem has not been constructively discharged.). In this case, Lisdahl took medical
leave and never returned to Gold Cross. During his employment at Gold Cross after
returning from Iraq, he never filed any grievances or voiced any concerns to Gold Cross
about the alleged mistreatment by Johnson. Instead, Lisdahl simply resigned, offering a
reason in sworn statements that is inconsistent with the explanation he now submits. The
district court did not err in ruling that Lisdahl was not constructively discharged.
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3. If Most Employees Stay, the Claim Fails
Ahern v. Shinseki, 629 F.3d 49, 59, 110 Fair Empl.Prac.Cas. (BNA) 1785 (1st Cir. 2010),
affirmed the grant of summary judgment to the Title VII defendant on plaintiffs constructive-
discharge claims. The court held that there was no evidence that plaintiffs abrasive manager
was motivated by bias. Toiling under a boss who is tough, insensitive, unfair, or unreasonable
can be burdensome, but Title VII does not protect employees from the ordinary slings and
arrows that suffuse the workplace every day. . . . Nevertheless, generally disagreeable behavior
and discriminatory animus are two different things. (Citation omitted.) The court added that
the fact that most employees stayed working for the manager rather than leaving undermined
their claim: Indeed, the vast majority of the employees who worked under Khatib, male and
female, were subjected to the same treatment and chose to stay. This fact underscores the
absence of any foundation for a claim of constructive discharge. (Citation omitted.)
D. Retaliation
1. Associational Discrimination
Thompson v. North American Stainless, LP, __ U.S. __, 131 S.Ct. 863, 111 Fair
Empl.Prac.Cas. (BNA) 385 (2011) (Scalia, J.), reversed the Sixth Circuit, and held that Title VII
protects employees from being fired because their fiances or family members filed EEOC
charges under the statute. The Court stated: We think it obvious that a reasonable worker might
be dissuaded from engaging in protected activity if she knew that her fiance would be fired. Id.
at 868. The Court continued:
We must also decline to identify a fixed class of relationships for which third-
party reprisals are unlawful. We expect that firing a close family member will almost
always meet the Burlington standard, and inflicting a milder reprisal on a mere
acquaintance will almost never do so, but beyond that we are reluctant to generalize. As
we explained in Burlington, 548 U.S., at 69, 126 S.Ct. 2405, the significance of any
given act of retaliation will often depend upon the particular circumstances. Given the
broad statutory text and the variety of workplace contexts in which retaliation may occur,
Title VII's antiretaliation provision is simply not reducible to a comprehensive set of clear
rules. We emphasize, however, that the provision's standard for judging harm must be
objective, so as to avoi[d] the uncertainties and unfair discrepancies that can plague a
judicial effort to determine a plaintiff's unusual subjective feelings. Id., at 68-69, 126
S.Ct. 2405.
Id. at 868-69. The Court held that the question whether Thompson could sue under Title VII was
more difficult. Id. at 869. It held that the statutory phrase person aggrieved did not reach as
far as Article III, but that it included persons within the zone of interests protected by the statute.
Quoting the language of the Administrative Procedure Act, 5 U.S.C. 551 et seq. It continued:
The Administrative Procedure Act . . . authorizes suit to challenge a federal
agency by any person ... adversely affected or aggrieved ... within the meaning of a
relevant statute. . . . We have held that this language establishes a regime under which a
plaintiff may not sue unless he falls within the zone of interests' sought to be protected
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24
by the statutory provision whose violation forms the legal basis for his complaint. . . .
We have described the zone of interests test as denying a right of review if the
plaintiff's interests are so marginally related to or inconsistent with the purposes implicit
in the statute that it cannot reasonably be assumed that Congress intended to permit the
suit. . . . We hold that the term aggrieved in Title VII incorporates this test, enabling
suit by any plaintiff with an interest arguably [sought] to be protected by the statutes,
. . . while excluding plaintiffs who might technically be injured in an Article III sense but
whose interests are unrelated to the statutory prohibitions in Title VII.

Applying that test here, we conclude that Thompson falls within the zone of
interests protected by Title VII. Thompson was an employee of NAS, and the purpose of
Title VII is to protect employees from their employers' unlawful actions. Moreover,
accepting the facts as alleged, Thompson is not an accidental victim of the retaliation
collateral damage, so to speak, of the employer's unlawful act. To the contrary, injuring
him was the employer's intended means of harming Regalado. Hurting him was the
unlawful act by which the employer punished her. In those circumstances, we think
Thompson well within the zone of interests sought to be protected by Title VII. He is a
person aggrieved with standing to sue.
Id. at 870 (citations omitted). Justice Ginsberg, joined by Justice Breyer, concurred, relying on
the EEOC Compliance Manual. Id. at 870-71.
Comment by Richard Seymour on Thompson v. North American Stainless: The
Court seems to be looking for ways to integrate civil rights law with existing bodies of law having
nothing to do with civil rights. It would have been difficult to predict that the Court would draw its
standard from the Administrative Procedures Act, and it is unclear what difference that standard
is supposed to make. Will this zone of interests analysis now apply to all anti-retaliation
statutes? Implied prohibitions against retaliation? Whistleblower laws? Unfair labor practice
charges?
2. Protected Conduct
Kasten v. Saint-Gobain Performance Plastics, No. 09-834 (Supreme Court, argued
October 13, 2010). The case is on certiorari from the Eighth Circuit decision reported at 585
F.3d 310 (8th Cir. 2009). The question presented is:
Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct
under the anti-retaliation provision, 29 U.S.C. 215(a)(3)?
Crawford v. Metropolitan Government of Nashville and Davidson County, __ U.S. __,
129 S. Ct. 846, 172 L. Ed. 2d 650, 105 Fair Empl.Prac.Cas. (BNA) 353 (2009), reversed the
decision of the Sixth Circuit and held that employees who give evidence of harassment in an
internal investigation in response to the employers questions, without having come forward on
their own and without any EEOC charge having been filed, are protected by the opposition
clause of 704(a) of Title VII. Plaintiff and two other women described harassment by
Employee Human Relations Director Hughes. No action was taken against Hughes, but all three
women were fired. Plaintiff was assertedly fired for embezzlement. The Court stated: There is,
then, no reason to doubt that a person can oppose by responding to someone else's question
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just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule
protecting an employee who reports discrimination on her own initiative but not one who reports
the same discrimination in the same words when her boss asks a question. Justices Alito and
Thomas concurred in the judgment.
Bonds v. Leavitt, 629 F.3d 369, 384, 111 Fair Empl.Prac.Cas. (BNA) 171, 31 IER Cases
1078 (4th Cir. 2011), affirmed the dismissal of plaintiffs Title VII retaliation claim because the
conduct of which she complained did not involve an employment practice. Dr. Bonds had
complained of the unconsented retention of cell lines from blood samples taken for research on
sickle cell anemia. The court held that private employees would not be protected from such
retaliation: Title VII is not a general bad acts statute, however, and it does not prohibit private
employers from retaliating against an employee based on her opposition to discriminatory
practices that are outside the scope of Title VII. Id. The court stated it had little doubt that
Congress intended to prohibit retaliation against Federal employees despite the lack of a
reference to retaliation in 42 U.S.C. 2000e-16, but added: Nonetheless, we see no basis for
concluding that conduct of the type at issue herewhich would not be protected by 2000e-3(a)
if undertaken by a private employeeshould be protected by 2000e-16(a). Id.
Dawson v. Entek Intl, 630 F.3d 928, 936-37, 111 Fair Empl.Prac.Cas. (BNA) 306 (9th
Cir. 2011), reversed the grant of summary judgment to defendant, and held, inter alia, that a
complaint of discrimination based on sexual orientation is protected activity for purposes of Title
VIIs anti-retaliation provision. The court affirmed the grant of summary judgment on the
underlying Title VII sexual harassment claim because plaintiff contended that he did not have
effeminate characteristics, but reversed the grant of summary judgment on the underlying
Oregon sexual-orientation harassment claim. Id. at 937-38.
a. Power to Correct the Problem is Not a Factor
Bonds v. Leavitt, 629 F.3d 369, 381-82, 111 Fair Empl.Prac.Cas. (BNA) 171, 31 IER
Cases 1078 (4th Cir. 2011), reversed the dismissal of plaintiffs claims under the Whistleblower
Protection Act, 5 U.S.C. 2302(b)(8). The district court had dismissed plaintiffs claim that her
she made a protected disclosure of wrongdoing to Dr. Elizabeth Nabel, who was the Director of
the NIHs National Heart, Lung, and Blood Institute, and her third-level supervisor, in part
because Dr. Nabel did not have authority to provide a remedy for the wrongdoing. The court
relied on the amendment to the WPA changing the coverage language from a disclosure to
any disclosure, and restrictively read Hooven-Lewis v. Caldera, 249 F.3d 259, 276 (4th Cir.
2001), as holding only that a disclosure to the wrongdoer is nor a disclosure to anyone.
b. Official Job Duties, and Plaintiff Overstepping Perceived
Bounds
Bonds v. Leavitt, 629 F.3d 369, 382, 111 Fair Empl.Prac.Cas. (BNA) 171, 31 IER Cases
1078 (4th Cir. 2011), reversed the dismissal of plaintiffs claims under the Whistleblower
Protection Act, 5 U.S.C. 2302(b)(8). The district court had dismissed plaintiffs claim that her
she made a protected disclosure of wrongdoing to Dr. Elizabeth Nabel, who was the Director of
the NIHs National Heart, Lung, and Blood Institute, and her third-level supervisor, in part
because the disclosure was part of her official job duties. Reversing, the court of appeals
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26
reserved the question whether it would permit such an exception to the protections of the WPA,
and held that in any event plaintiffs superiors view that she overstepped the bounds of her job,
or was unprofessional, in reporting wrongdoing to Dr. Nabel, were enough to defeat summary
judgment on the question whether the report was outside the duties of her job.
3. Defendants Ignorance of Protected Conduct
Rivera-Coln v. Mills, 635 F.3d 9, 111 Fair Empl.Prac.Cas. (BNA) 737 (1st Cir. 2011),
affirmed the grant of summary judgment to the Title VII retaliation defendant. Plaintiff made an
anonymous complaint, and was subsequently suspended for two days. The court affirmed the
lower courts determination that this could not have been retaliatory, because plaintiff did not
rebut defendants showing that she was suspended before the supervisors who imposed the
suspension learned she was the source of the anonymous complaint. Id. at p. *3.
Papelino v. Albany College of Pharmacy of Union University, 633 F.3d 81 (2d Cir.
2011), reversed in part and affirmed in part the grant of summary judgment against the Title IX
student plaintiffs. The court described the case succinctly at p. *1: In this case, plaintiff-
appellant Daniel Papelino alleges that he was sexually harassed by a professor when he was
enrolled as a student at the defendant-appellee Albany College of Pharmacy (the College). He
complained to the Associate Dean of Student Affairs. Shortly thereafter, the College accused
Papelino and his two roommates, plaintiff-appellant Michael Yu and plaintiff Carl Basile, of
cheating on exams. All three were disciplined, and Papelino and Basile were expelled. The
court rejectedas irrelevantdefendants arguments that they did not know of plaintiffs
protected activity:
Even if the agents who carried out the adverse action did not know about the
plaintiff's protected activity, the knowledge requirement is met if the legal entity was
on notice. . . . Neither this nor any other circuit has ever held that, to satisfy the
knowledge requirement, anything more is necessary than general corporate knowledge
that the plaintiff has engaged in a protected activity.

While the individual agents' claims of unawareness of the protected activity are
relevant to the jury's determination of causality, a jury is entitled to disregard such claims
if they are unreliable. Further, while lack of knowledge on the part of particular agents
who carried out the adverse action is evidence of lack of causal connection, a plaintiff
may counter with evidence that the decision-maker was acting on orders or
encouragement of a superior who did have the requisite knowledge. . . . In a retaliation
case, a plaintiff is only required to prove that a retaliatory motive play[ed] a part in
adverse [ ] actions toward [him], whether or not it was the sole cause. . . .
Id. at 92.
4. How Specific Must Defendants Knowledge of Protected Conduct Be?
Bonds v. Leavitt, 629 F.3d 369, 382-83, 111 Fair Empl.Prac.Cas. (BNA) 171, 31 IER
Cases 1078 (4th Cir. 2011), reversed the dismissal of plaintiffs claims under the Whistleblower
Protection Act, 5 U.S.C. 2302(b)(8). The court of appeals held that there was sufficient
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27
circumstantial evidence from which a jury could infer that the decisionmaker, Dr. Peterson, was
aware of plaintiffs protected disclosure to the Office of Special Counsel. The court held that a
combination of several factors was sufficient: (1) Dr. Petersons knowledge of the investigation
since he was one of the persons OSC interviewed; (2) Dr. Petersons knowledge that she was the
only person objecting to the retention of cell lines at issue, (3) another officials learning of her
involvement, (4) that officials reluctance to admit his knowledge of her involvement, (5) the
jurys ability to infer that that official had told Dr. Peterson, and (6) even without that persons
knowledge, plaintiffs poor relationship with Dr. Peterson, giving Dr. Peterson reason to believe
she would blow the whistle on his involvement. It stated: We agree with Bonds that she created
a genuine issue of material fact concerning whether Peterson knew at the time he terminated her
that she had blown the whistle to the OSC. Id. at 383.
5. Are Retaliatory Counterclaims Actionable?
a. Supreme Court Context
There has been a great deal of recent discussion on plaintiffs attorneys list-serves on
whether some or all counterclaims against the plaintiff by the defendant employer or its officials
is actionable retaliation, or can constitute a conspiracy to deprive the plaintiff of her or his civil
rights under 42 U.S.C. 1985(3). An analogous situation arose when defendants in cases based
on legislative rights counterclaimed that the plaintiff had lobbied for and obtained the legislation
in order to create barriers to competition, and that the lawsuit based on the resulting legislation
was unlawful as a breach of the antitrust laws. One major roadblock to such claims is the First
Amendment right of the employer and its officials to petition the government, including the
courts, for relief.
Eastern R. R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 138
(1961), rejected the effort of trucking companies to declare that the railroads successful
campaign to obtain legislation favoring railroads over truckers was a violation of the Sherman
Act. The Court held that such a construction of the Sherman Act would raise important
constitutional questions. The right of petition is one of the freedoms protected by the Bill of
Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms.
The Court held that a motive to obtain competitive advantage, and to place competitors at a
disadvantage, did not rob the effort of its protection under the First Amendment. Id. at 138-40.
The Court explained:
The right of the people to inform their representatives in government of their desires with
respect to the passage or enforcement of laws cannot properly be made to depend upon
their intent in doing so. It is neither unusual nor illegal for people to seek action on laws
in the hope that they may bring about an advantage to themselves and a disadvantage to
their competitors. This Court has expressly recognized this fact in its opinion in United
States v. Rock Royal Co-op., where it was said: If ulterior motives of corporate
aggrandizement stimulated their activities, their efforts were not thereby rendered
unlawful. If the Act and Order are otherwise valid, the fact that their effect would be to
give cooperatives a monopoly of the market would not violate the Sherman Act * * *.
Indeed, it is quite probably people with just such a hope of personal advantage who
provide much of the information upon which governments must act. A construction of the
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28
Sherman Act that would disqualify people from taking a public position on matters in
which they are financially interested would thus deprive the government of a valuable
source of information and, at the same time, deprive the people of their right to petition in
the very instances in which that right may be of the most importance to them. We reject
such a construction of the Act and hold that, at least insofar as the railroads' campaign
was directed toward obtaining governmental action, its legality was not at all affected by
any anticompetitive purpose it may have had.
Id. at 139-40. Simultaneously, the Court recognized an exception for sham activity:
There may be situations in which a publicity campaign, ostensibly directed toward
influencing governmental action, is a mere sham to cover what is actually nothing more
than an attempt to interfere directly with the business relationships of a competitor and
the application of the Sherman Act would be justified. But this certainly is not the case
here.
Id. at 143. The reason it was not the case was that it was the campaign really was intended to
influence governmental action, and was highly successful. Id.
The Supreme Court again addressed this question in Professional Real Estate Investors,
Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 60-61 (1993). It stated:
We now outline a two-part definition of sham litigation. First, the lawsuit must
be objectively baseless in the sense that no reasonable litigant could realistically expect
success on the merits. If an objective litigant could conclude that the suit is reasonably
calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an
antitrust claim premised on the sham exception must fail.FN5/ Only if challenged
litigation is objectively meritless may a court examine the litigant's subjective motivation.
Under this second part of our definition of sham, the court should focus on whether the
baseless lawsuit conceals an attempt to interfere directly with the business relationships
of a competitor, Noerr, supra, 365 U.S., at 144 81 S.Ct., at 533 (emphasis added),
through the use [of] the governmental process-as opposed to the outcome of that
process-as an anticompetitive weapon, Omni, 499 U.S., at 380, 111 S.Ct., at 1354
(emphasis in original). This two-tiered process requires the plaintiff to disprove the
challenged lawsuit's legal viability before the court will entertain evidence of the suit's
economic viability. Of course, even a plaintiff who defeats the defendant's claim to
Noerr immunity by demonstrating both the objective and the subjective components of a
sham must still prove a substantive antitrust violation. Proof of a sham merely deprives
the defendant of immunity; it does not relieve the plaintiff of the obligation to establish
all other elements of his claim.
_______
FN5/ A winning lawsuit is by definition a reasonable effort at petitioning for
redress and therefore not a sham. On the other hand, when the antitrust defendant has
lost the underlying litigation, a court must resist the understandable temptation to
engage in post hoc reasoning by concluding that an ultimately unsuccessful action must
have been unreasonable or without foundation. Christiansburg Garment Co. v. EEOC,
434 U.S. 412, 421-422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). Accord, Hughes v.
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29
Rowe, 449 U.S. 5, 14-15, 101 S.Ct. 173, 178-179, 66 L.Ed.2d 163 (1980) (per curiam).
The court must remember that [e]ven when the law or the facts appear questionable or
unfavorable at the outset, a party may have an entirely reasonable ground for bringing
suit. Christiansburg, supra, 434 U.S., at 422, 98 S.Ct., at 701.
(Emphasis in original.)
The Court applied this principle to the National Labor Relations Act in Bill Johnson's
Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 743, 113 L.R.R.M. (BNA) 2647 (1983), holding that
retaliatory motive did not matter if the retaliatory claim or counterclaim was well-founded: The
filing and prosecution of a well-founded lawsuit may not be enjoined as an unfair labor practice,
even if it would not have been commenced but for the plaintiff's desire to retaliate against the
defendant for exercising rights protected by the Act. The Court continued:
Although it is not unlawful under the Act to prosecute a meritorious action, the
same is not true of suits based on insubstantial claimssuits that lack, to use the term
coined by the Board, a reasonable basis. Such suits are not within the scope of First
Amendment protection:
The first amendment interests involved in private litigationcompensation for
violated rights and interests, the psychological benefits of vindication, public
airing of disputed factsare not advanced when the litigation is based on
intentional falsehoods or on knowingly frivolous claims. Furthermore, since
sham litigation by definition does not involve a bona fide grievance, it does not
come within the first amendment right to petition.
Just as false statements are not immunized by the First Amendment right to freedom of
speech . . . baseless litigation is not immunized by the First Amendment right to petition.
(Citations and footnote omitted.) The Court held that the NLRB could not treat an ongoing
action as baseless and enjoin it if its merit turned on the credibility of witnesses, or presented a
genuine issue of material fact. Id. at 744-45. When the litigation was completed, however, a
different standard applies. If the employer wins on its claim, the claim cannot be considered
baseless. Id. at 747. If the employer loses or withdraws the claim, the Board would be
warranted in taking that fact into account in determining whether the suit had been filed in
retaliation for the exercise of the employees' 7 rights. If a violation is found, the Board may
order the employer to reimburse the employees whom he had wrongfully sued for their attorneys'
fees and other expenses. It may also order any other proper relief that would effectuate the
policies of the Act. Id. (citation and footnote omitted).
Finally, in BE & K Const. Co. v. N.L.R.B., 536 U.S. 516, 170 L.R.R.M. (BNA) 2225
(2002), the Court held that the NLRB could not declare unlawful any unsuccessful suit filed
because of a retaliatory motive, but only those that were objectively baseless.
b. Courts of Appeals
Bryant v. Military Department of Mississippi, 597 F.3d 678, 691-92, 30 IER Cases 654
(5th Cir. 2010), cert. denied, __ U.S. __, 131 S.Ct. 287, 178 L.Ed.2d 141 (2010), affirmed the
2491

30
dismissal of the plaintiff airmans whistleblower lawsuit against the Mississippi Air National
Guard and several of its officials. The court held that suits brought by individual defendants
against plaintiff were not objectively baseless, and thus could not be violations of 1985(3),
without having to consider the issue of retaliatory motive:
Accordingly, we find the narrow holding of BE & K inapposite to the issues
raised in this case. Rather, the standard to be applied to the allegedly retaliatory litigation
is the Professional Real Estate Investors test, requiring a finding that the petitioning
activity is objectively baseless, before subjective intent is considered. This test, rather
than Bill Johnson's, has been extended outside the area of antitrust to other contexts and
we find it appropriate here.
(Footnote omitted.) The court also held that the burden of showing objective baselessness was
on the plaintiff. Id. at 692.
6. What Other Conduct is Actionable?
a. Request for Change in Office Space Not Actionable
Lockridge v. The University of Maine System, 597 F.3d 464, 108 Fair Empl.Prac.Cas.
(BNA) 1160 (1st Cir. 2010), affirmed the grant of summary judgment to the Title VII sex
discrimination defendant. The court held that the denial of plaintiffs request for a change in
office space could not be actionable, where plaintiffs resulting office space was the same as for
many of her co-workers.
b. Two Days Loss of Pay Actionable
Young-Losee v. Graphic Packaging Intl, Inc., 631 F.3d 909, 111 Fair Empl.Prac.Cas.
(BNA) 488 (8th Cir. 2011), reversed the grant of summary judgment to the Title VII sexual
harassment and retaliation defendant. The court stated at p. *2:
Young-Losee presented direct evidence that she was terminated in retaliation for
filing a formal complaint of harassment. At the May 6 meeting, plant supervisor Shelley
wadded up her complaint, called it total bullshit, threw it in the garbage can, told her to
leave, and said he never wanted to see her again. These facts are direct evidence of a
causal link between the filing of the complaint and her firing.
The lower court held there was no materially adverse employment action because she was paid
through May 15, and an HR official who performed an investigation told her she had not been
fired, and that she could return to work. The court of appeals held: Being fired for making a
discrimination complainteven if rescinded after two daysmight well dissuade a reasonable
employee from making a complaint of harassment. Id. at p. *3.

c. Burlington Northern Standard Unavailable under USERRA
Lisdahl v. Mayo Foundation, 633 F.3d 712, 190 L.R.R.M. (BNA) 2325 (8th Cir. 2011),
affirmed the grant of summary judgment to the USERRA defendant. The court held at p. *7 that
USERRA retaliation claims are limited to adverse employment actions, unlike Title VII
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31
retaliation claims: Unlike the situation in Burlington, no comparable textual distinction exists
between USERRA's anti-discrimination provision, 38 U.S.C. 4311(a), and the anti-retaliation
provision, 4311(b). USERRA's anti-retaliation provision expressly limits actionable harm to
adverse employment action, not the broader discrimination prohibited by Title VII's anti-
retaliation provision. The court held that the myriad of assertedly adverse employment actions
alleged by two plaintiffs amounted to no more than petty irritations and slights. Id. at pp. *8-*9.
7. Causation
a. Following Standard Practices Precludes Causation
Rivera-Coln v. Mills, 635 F.3d 9, 111 Fair Empl.Prac.Cas. (BNA) 737 (1st Cir. 2011),
affirmed the grant of summary judgment to the Title VII retaliation defendant. Plaintiff made an
anonymous complaint, was subsequently notified of an option to transfer to Philadelphia or to
take a severance package, failed to decide within the extended time period allowed by the
employer, and was terminated. The court held that plaintiff could not claim retaliation as a cause
of the transfer or termination, because the options and consequences had been negotiated with
the employee union, and had been applied to large numbers of people.
b. Temporal Proximity
Dawson v. Entek Intl, 630 F.3d 928, 936-37, 111 Fair Empl.Prac.Cas. (BNA) 306 (9th
Cir. 2011), reversed the grant of summary judgment to defendant on plaintiffs Title VII
retaliation claim, holding that evidence of temporal proximity was enough to show causation.
The court explained: Viewing the facts in the light most favorable to Dawson, the protected
activity occurred at most two days before the discharge and the treatment of Dawson was a topic
during both the protected activity and the discharge, as explained by the supervisor and human
resources person who fired him. The gravity of Dawson's complaints coupled with the time
frame are such that a reasonable trier of fact could find in favor of Dawson on his retaliation
claim. The district court erred in resolving this claim by summary judgment. Id. at 937
E. Circumstantial Evidence
Lockridge v. The University of Maine System, 597 F.3d 464, 108 Fair Empl.Prac.Cas.
(BNA) 1160 (1st Cir. 2010), affirmed the grant of summary judgment to the Title VII sex
discrimination defendant. Plaintiff was denied a pay increase because of a lack of scholarly
articles. The court rejected her proposed comparator because he was not on a scholarly track like
plaintiff, and thus was not expected to write as many scholarly articles as plaintiff.
F. Proving Truisms to be Inapplicable
1. Same Decisionmakers Can Still Discriminate
Radentz v. Marion County, __ F.3d __, 2011 WL 1237931, 111 Fair Empl.Prac.Cas.
(BNA) 1676 (7th Cir. April 5, 2011) (No. 10-1523), reversed the grant of summary judgment to
the 1983 defendants. Plaintiffs were two white pathologists and their company, who had been
performing autopsies under a contract to Marion County. The contract was entered into by
defendant Ackles, who was under pressure to arrange quickly for the continuation of autopsies
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that Indiana University was no longer performing. Plaintiffs alleged that their contract was
terminated several months later because defendants wished to replace them with African-
Americans, not because of the stated reason, the cost of the contract. Throughout the opinion,
the court emphasized the need for a quick arrangement to keep autopsies continuing, and held
that this was not inconsistent with the same officials later terminating their contract so that he
could then bring more African-Americans on board. See the quoted part of the decision in the
discussion below on Biased Statements Do Not Have a Short Probative Shelf Life.
G. Discriminatory Statements
1. Biased Statements Do Not Have a Short Probative Shelf Life
Radentz v. Marion County, __ F.3d __, 2011 WL 1237931, 111 Fair Empl.Prac.Cas.
(BNA) 1676 (7th Cir. April 5, 2011) (No. 10-1523), reversed the grant of summary judgment to
the 1983 defendants. Plaintiffs were two white pathologists and their company, who had been
performing autopsies under contract to Marion County. They alleged that their contract was
terminated because defendants wished to replace them with African-Americans, not because of
the cost of the contract. The contract allowed plaintiffs to perform autopsies for other counties at
the Marion County facilities, and obligated Marion County to provide supplies for all autopsies
conducted there. The lower court held that racially biased statements by defendants to an official
named Linehan were stray and not probative because they were made before the County
entered into a five-year contract with plaintiffs. The court of appeals held that defendants were
under an immediate need to arrange for autopsies, to replace the services the University of
Indiana had been performing, and that the bias revealed by the bigoted statements did not expire
with the simple passage of time:
The district court was dismissive of the relevance of those statements, noting that
they occurred well before the Forensic Pathology contract was signed and characterizing
them as mere stray comments unrelated to the decision to terminate Forensic Pathology.
The timing of the comments is relevant, and the court properly noted that after indicating
the desire to hire an AfricanAmerican forensic pathologist in January 2005, Ackles
nevertheless entered into a contract with the plaintiffs who are white in September 2005.
That does not render the race-based statements stray comments, however, given the
urgency surrounding the initial contract with Forensic Pathology. . . . Because the
investigation and prosecution of crimes is dependent on autopsies and pathologist
testimony, Ackles was faced with the need to find a replacement quickly to ensure a
seamless transition. The hiring in September 2005 of the pathologists who had been
working for Indiana University must be viewed in that context. Moreover, Linehan was
the Chief Deputy Coroner at the time of the contract with Forensic Pathology. Ballew
took over his position in December 2005. Within just nine months after Forensic
Pathology began its five-year contract, and six months after Ballew became Chief Deputy
Coroner, the defendants issued a notice terminating that contract. They then replaced the
plaintiffs with an AfricanAmerican, Dr. Carter. Given that sequence of events, the
hiring of the white plaintiffs does not neutralize Ackles' earlier comments that he desired
to replace white employees with AfricanAmericans. See Marion County Coroner's
Office, 612 F.3d at 930 n. 6 (in discrimination case brought by Linehan, a white male,
court considered the defendant Ackles' stated preference for hiring AfricanAmericans
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33
even though Ackles initially hired Linehan and another white employee, where Linehan
was retained for the sake of continuity in the office and the white male who replaced him
took over on an interim basis for only a few weeks until Ballew, an AfricanAmerican,
was hired). The need for a quick transition and the short duration of the Forensic
Pathology contract allows for an inference that their hiring was merely as a placeholder
while the defendants pursued the goal of hiring AfricanAmericans. Therefore, the court
erred in dismissing outright any consideration of the clear statement by Ackles that he
wanted to replace white workers with AfricanAmericans, and that he wanted to hire an
AfricanAmerican pathologist. Those statements provide some support for the plaintiffs'
claim that their termination was race-based.
2. The Inferences to be Drawn from a Biased Statement
Schandelmeier-Bartels v. Chicago Park District, 634 F.3d 372, 111 Fair Empl.Prac.Cas.
(BNA) 739, 78 Fed.R.Serv.3d 1023 (7th Cir. 2011), reversed the district courts grant of
judgment as a matter of law, and reinstated the jury verdict on liability for the Caucasian Title
VII racial discrimination plaintiff. Plaintiff observed what appeared to her to be an aunt striking
a small child with a belt, and made an official report of the incident. Her African-American
supervisor launched into a tirade about this being a standard type of discipline among African-
American families, and wrote a report emphasizing plaintiffs problems at work, accusing her of
making a baseless report, and omitting her own racial tirade. Plaintiff was subsequently fired.
The court discussed at p. *8 the significance of the evidence that plaintiffs supervisor, Adams,
was racially biased at the moment of her racial tirade:
Regardless of whether McDonald or Rowland was the actual decisionmaker, the
parties' briefs have focused on pinpointing the details of who, what, and when about the
JJ. incident, as though all discriminatory bias in this case stems from that one event. The
jury, however, was not required to see it that way. The JJ. incident provided strong
evidence of Adams's racial bias, but the jury was not required to assume that Adams's
bias affected her only at that specific time with respect to that single incident. Nor was
the jury required to assume that the termination decision could have been tainted by
Adams's influencesingular or notonly if the decision could be connected to that one
incident. Under the cat's paw theory, the appropriate inquiry is whether the biased
Adams had influence over the decision to terminate Schandelmeier, and, if so, how much
influence she had, without limiting the inquiry to the single incident where that bias was
displayed so flagrantly.
Comment on Schandelmeier-Bartels v. Chicago Park District: The concept that a
biased statement reveals bias in the heart, that would ordinarily be expected both to precede
and to follow the point in time at which it is revealed, is critical.
3. Speakers Who Were Not Formal Decisionmakers
Staub v. Proctor Hospital, __ U.S. __, 131 S. Ct. 1186 (2011) (Scalia, J.), reversed the
Seventh Circuits decision reported at 560 F. 3d 647 (7th Cir. 2009). The case involved a
termination challenged under USERRA, where there was clear evidence of anti-military bias by
plaintiffs first- and second-level supervisors, Janice Mulally and Michael Korenchuk, and clear
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34
evidence that they wanted to get rid of him, and a clueless decisionmaker, Linda Buck, who was
the Vice-President of Human Resources. Ms. Buck relied on the representations of the
supervisors, a complaint about plaintiff from a co-worker, Angie Day, and a review of plaintiffs
personnel file. Ms. Buck did nothing to check the facts, even after plaintiff filed an internal
complaint that the reasons for his termination had been fabricated. The question presented was
the cats paw question: In what circumstances may an employer be held liable based on the
unlawful intent of officials who caused or influenced but did not make the ultimate employment
decision? The Court set out the Seventh Circuits rationale for overturning the jury verdict for
plaintiff:
The Seventh Circuit reversed, holding that Proctor was entitled to judgment as a
matter of law. . . . The court observed that Staub had brought a cat's paw case,
meaning that he sought to hold his employer liable for the animus of a supervisor who
was not charged with making the ultimate employment decision. . . . It explained that
under Seventh Circuit precedent, a cat's paw case could not succeed unless the
nondecisionmaker exercised such singular influence over the decisionmaker that the
decision to terminate was the product of blind reliance. . . . It then noted that Buck
looked beyond what Mulally and Korenchuk said, relying in part on her conversation
with Day and her review of Staub's personnel file. . . . The court admit[ted] that Buck's
investigation could have been more robust, since it failed to pursue Staub's theory that
Mulally fabricated the write-up. . . . But the court said that the singular influence
rule does not require the decisionmaker to be a paragon of independence: It is enough
that the decisionmaker is not wholly dependent on a single source of information and
conducts her own investigation into the facts relevant to the decision. . . . Because the
undisputed evidence established that Buck was not wholly dependent on the advice of
Korenchuk and Mulally, the court held that Proctor was entitled to judgment. . . .
Id. at p. *3 (citations omitted). The Court emphasized USERRAs similarity to Title VII, in
using a motivating factor basis of liability. The Court held that Congress created a federal
tort by enacting USERRA. Discussing the motivating factor test, the Court stated:
In approaching this question, we start from the premise that when Congress
creates a federal tort it adopts the background of general tort law. See Burlington N. &
S.F.R. Co. v. United States, 556 U.S. ----, ---- (2009) (slip op., at 13-14); Safeco Ins. Co.
of America v. Burr, 551 U.S. 47, 68-69, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007);
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 764, 118 S.Ct. 2257, 141 L.Ed.2d
633 (1998). Intentional torts such as this, as distinguished from negligent or reckless
torts, ... generally require that the actor intend the consequences of an act,' not simply
the act itself. Kawaauhau v. Geiger, 523 U.S. 57, 61-62, 118 S.Ct. 974, 140 L.Ed.2d
90 (1998).
Id. at p. *4. The Court held that animus of nondecisionmakers cannot simply be assumed to be
causally related to the adverse action unless the nondecisionmakers intended the adverse action.
To do otherwise would be to conflate the two required elements of liability, animus and adverse
action. Id. at pp. *4-*5. In a paragraph certain to lead to a great deal of litigation, the Court
stated:
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Proctor, on the other hand, contends that the employer is not liable unless the de
facto decisionmaker (the technical decisionmaker or the agent for whom he is the cat's
paw) is motivated by discriminatory animus. This avoids the aggregation of animus and
adverse action, but it seems to us not the only application of general tort law that can do
so. Animus and responsibility for the adverse action can both be attributed to the earlier
agent (here, Staub's supervisors) if the adverse action is the intended consequence of that
agent's discriminatory conduct. So long as the agent intends, for discriminatory reasons,
that the adverse action occur, he has the scienter required to be liable under USERRA.
And it is axiomatic under tort law that the exercise of judgment by the decisionmaker
does not prevent the earlier agent's action (and hence the earlier agent's discriminatory
animus) from being the proximate cause of the harm. Proximate cause requires only
some direct relation between the injury asserted and the injurious conduct alleged, and
excludes only those link[s] that are too remote, purely contingent, or indirect. . . . FN2
We do not think that the ultimate decisionmaker's exercise of judgment automatically
renders the link to the supervisor's bias remote or purely contingent. The
decisionmaker's exercise of judgment is also a proximate cause of the employment
decision, but it is common for injuries to have multiple proximate causes. . . . Nor can the
ultimate decisionmaker's judgment be deemed a superseding cause of the harm. A cause
can be thought superseding only if it is a cause of independent origin that was not
foreseeable. . . .
_________
FN2. Under the traditional doctrine of proximate cause, a tortfeasor is sometimes,
but not always, liable when he intends to cause an adverse action and a different adverse
action results. See Restatement (Second) Torts 435, 435B and Comment a (1963 and
1964). That issue is not presented in this case since the record contains no evidence that
Mulally or Korenchuk intended any particular adverse action other than Staub's
termination.
Id. at p. *5.
Schandelmeier-Bartels v. Chicago Park District, 634 F.3d 372, 111 Fair Empl.Prac.Cas.
(BNA) 739, 78 Fed.R.Serv.3d 1023 (7th Cir. 2011), reversed the district courts grant of
judgment as a matter of law, and reinstated the jury verdict on liability for the Caucasian Title
VII racial discrimination plaintiff. Plaintiff relied on a cats paw theory under which the bias
of a non-decisionmaker influenced the decisionmaker to terminate plaintiff. The court held that
plaintiff had made an adequate showing because the evidence was that, whichever supervisor had
made the decision to terminate plaintiff, the supervisor relied almost entirely on the input of the
biased manager. Id. at p. *5.
H. Simple Statistics Can Be Probative
Radentz v. Marion County, __ F.3d __, 2011 WL 1237931, 111 Fair Empl.Prac.Cas.
(BNA) 1676 (7th Cir. April 5, 2011) (No. 10-1523), reversed the grant of summary judgment to
the 1983 defendants. Plaintiffs were two white pathologists and their company, who had been
performing autopsies under contract to Marion County. They alleged that their contract was
terminated because defendants wished to replace them with African-Americans, not because of
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the nondiscriminatory reason proffered. The court relied in part on simple statistical
comparisons and common-sense distinctions, without tests of statistical significance:
The sequence of events, and the manner in which it occurred, further indicates that
the decision to terminate the contract rather than exercise the provision K rights was
race-based.
Other evidence lends further support to that conclusion. The racial makeup of the
office changed significantly during Ackles' tenure. As a whole, the office went from
16.67% AfricanAmericans to 36%. That figure, however, includes the large number
of part-time employees, who according to plaintiffs work only sporadic hours and
receive no benefits. The racial change was even more dramatic when considering full-
time employees. From the time of Ackles' election to the end of 2007, the Coroner's
Office changed from 8 full-time white employees to 6, and the number of African
American employees transitioned from 2 full-time employees to 7, or 54% of the full-
time workforce. All three full-time supervisory positions were held by African
Americans. The plaintiffs produced evidence that the change was not inadvertent,
citing a statement made during the search for the replacement for the defendants. One
of the receptionists heard Ackles discussing how to replace the doctors, in which he
laughingly told Ballew I will put my people where they belong. That statement was
construed as again indicating a desire to place AfricanAmericans in the positions.
I. Harassment
1. Hostile Housing Environment
Quigley v. Winter, 598 F.3d 938 (8th Cir. 2010), affirmed the jury verdict under the Fair
Housing Act, and held that the plaintiff tenant had established sexual harassment by the landlord
and thus a hostile housing environment. The court held that there was sufficient evidence of
quid pro quo sexual harassment, in that the jury could reasonably infer that defendant would
only give her back her deposit if she exposed her body or granted sexual favors to the landlord.
2. The Prima Facie Case
Bonds v. Leavitt, 629 F.3d 369, 385, 111 Fair Empl.Prac.Cas. (BNA) 171, 31 IER Cases
1078 (4th Cir. 2011), affirmed the dismissal of plaintiffs Title VII hostile environment claim.
The court described the elements of a prima facie case:
To proceed on a Title VII hostile work environment claim, a plaintiff must show
that the offending conduct (1) was unwelcome, (2) was because of her sex [or race], (3)
was sufficiently severe or pervasive to alter the conditions of her employment and create
an abusive work environment, and (4) was imputable to her employer. . . . . Establishing
the third element requires that the plaintiff show that the work environment was not only
subjectively hostile, but also objectively so. . . . Such proof depends upon the totality of
the circumstances, including the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance. Id. (internal
quotation marks omitted).
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(Citations omitted.)
3. Causation
Papelino v. Albany College of Pharmacy of Union University, 633 F.3d 81 (2d Cir.
2011), reversed in part and affirmed in part the grant of summary judgment against the Title IX
student plaintiffs. The court described the case succinctly at 92: In this case, plaintiff-appellant
Daniel Papelino alleges that he was sexually harassed by a professor when he was enrolled as a
student at the defendant-appellee Albany College of Pharmacy (the College). He complained
to the Associate Dean of Student Affairs. Shortly thereafter, the College accused Papelino and
his two roommates, plaintiff-appellant Michael Yu and plaintiff Carl Basile, of cheating on
exams. All three were disciplined, and Papelino and Basile were expelled. The court stated at
90:
Finally, we also conclude that there is sufficient proof of the elements of a quid
pro quo claim to entitle Papelino to a jury trial. Papelino adduces evidence that: Nowak
made sexual advances toward him, he rejected them, and Nowak initiated Honor Code
proceedings against him soon thereafter, falsely accusing him of cheating. The close
temporal proximity between Papelino's final rejection of Nowak's advances and her
initiation of proceedings combined with the apparent speciousness of the proffered proof
of cheating constitute evidence of a causal connection, especially given Nowak's warning
that it would be a big mistake for Papelino to report her to White.
The court continued at 92-93:
Construing the evidence and drawing all reasonable inferences in favor of
plaintiffs, however, we conclude that triable issues of facts existed as to knowledge and
causation. First, there was evidence of knowledge-evidence that the College knew that
Papelino had engaged in protected activity. Papelino complained to White, and thus
White was aware that Papelino was engaging in protected activity. Yet, White did
nothing even after the cheating charges were lodged against Papelino. Moreover,
Papelino told Nowak that he was going to report her to White, and indeed he did so.
Although White testified that he never spoke to Nowak, the jury was not required to
credit this testimony. There is evidence that Nowak's behavior toward Papelino
changedshe became cold and hostile toward himaround this time, and Papelino
asserted that White reported that he had spoken to Nowak. The record also includes
evidence that members of the College faculty discussed Papelino's allegations of sexual
harassment during and after the Honor Code appeals process. A reasonable jury could
also conclude that even if the Panel members were themselves unaware that Papelino had
engaged in protected activity, they were acting on Nowak's explicit encouragement, or
that they acted without information that White should have imparted to them.

Second, the record contains substantial evidence of causation. A reasonable jury
could find that Nowak initiated the Honor Code proceedings for retaliatory reasons rather
than a good faith belief that Papelino had actually cheated. Nowak compiled and
presented the evidence to the Panel, serving as the hearing's primary witness. The
speciousness of the evidence presented to the Panel, as determined by the Third
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Department, is further evidence of a retaliatory motive and a causal connection. A
reasonable jury could also find that White should have followed up on Papelino's
complaint once the cheating charges were brought against him. In any case, for Papelino
to recover on his retaliation claim, he need only establish that impermissible retaliation
was one motive behind the initiation of the Honor Code charges against himnot that it
was the sole reason that any of the Panel members voted to find him guilty of cheating.
. . . From the evidence adduced, a reasonable jury surely could reach such a conclusion.

As for the College's refusal to provide an unqualified certification to the Florida
Pharmacy Board, we also find an issue of fact as to impermissible retaliatory motive.
Though the College claims that it refused to give an unqualified certification to the State
of Florida because it still harbored doubts about Papelino's academic integrity, the
validity of this explanation is undermined by the College's decision to provide an
unqualified certification to the State of New York two months prior. The only
circumstance that changed in the interim was plaintiffs' filing of this litigation. Further,
the College's letter to Papelino's counsel as much as admits that the pendency of this
lawsuit was the reason why the College was no longer willing to provide an unqualified
certification. At a minimum, there are issues of fact here.
Wilkie v. Department of Health and Human Services, __ F.3d __, 2011 WL 1563998 (8th
Cir. April 27, 2011 (No. 10-1916), affirmed the grant of summary judgment against the Title VII
sexual harassment plaintiff, rejecting her claim that the nonsexual, undermining conduct within
45 days of her informal complaint the was part of the same pattern as the sexualized conduct
outside the time period. The court then excluded the sexualized conduct ftom its consideration,
and held that plaintiff failed to prove that the later nonsexualized conduct occurred because of
her sex.
Comment on Wilkie v. Department of Health and Human Services: The court
clearygot it wrong, forgetting that evidence of motivation does not have to arise within the 45-
day period for contacting an EEO counselor, and that the earlier conduct can show sexual
causation regardless of itds being time-barred.
Bonds v. Leavitt, 629 F.3d 369, 385, 111 Fair Empl.Prac.Cas. (BNA) 171, 31 IER Cases
1078 (4th Cir. 2011), affirmed the dismissal of plaintiffs Title VII hostile environment claim.
The court held that the conduct in question related to plaintiffs job performance, and had not
been shown to be related to her race or gender.
Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 334-35, 111 Fair Empl.Prac.Cas.
(BNA) 51 (4th Cir. 2010), reversed in part and affirmed in part the grant of summary judgment
to the Title VII hostile-environment defendant. Plaintiff was in the Western Maryland Police
Academy, and was in the process of applying for a position as a police officer with the
Hagerstown Police Department. The City of Hagerstown was deemed her employer. She did
not pass the Academy because she failed the firearms qualification test on the last day. The court
held that she had shown adequate evidence that the hostile environment was because of her sex:
Here, Mosby-Grant, the only female recruit, was consistently made to feel like an
outsider by her classmates and some instructors, with one instructor even referring to her
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39
as a bitch. Mosby-Grant felt ostracized in part because of her classmates' juvenile
behavior, including their constant use of sexist language and disparaging remarks about
women. In Mosby-Grant's presence, recruits would regularly sing sexually explicit lyrics,
and describe women as bitches, prostitutes, crazy, and dope fiends, and
denigrate the female victims of domestic violence. . . . Although the sexist language was
rarely directed at Mosby-Grant herself, her classmates explicitly told Mosby-Grant that
they felt she was asking for special treatment because [she is] a woman. The male
recruits also noticeably singled Mosby-Grant out for special scorn during trainings.
Given these facts, a reasonable jury could find that Mosby-Grant was targeted because of
her sex. . . .
Id. at 334 (citations omitted). The court also held that plaintiff had adequately shown that
hostility to her race was a cause of the hostile environment:
Mosby-Grant also suitably established that some of the unpleasant encounters
between her and the other recruits were the result of race-based enmity. To establish a
hostile environment claim, [the plaintiff] must show that but for his race ..., he would
not have been the victim of the alleged discrimination. . . . The references of recruits to
the historical lynching of African Americans, in particular, the brutal murder of James
Byrd, Jr.
FN3
, and their use of derogatory terms like fucking Mexicans, honky, and
ghetto demonstrate that there was a level of racial hostility at the Academy. These
comments are enough to suggest that the recruits' conduct was motivated by race.
__________
FN3. The recruit's comment about being dragged from the back of a truck was
an apparent reference to Byrd's racially motivated murder on June 7, 1998. Byrd's
murder was widely reported and became symbolic of the horrors of racism. 10 years
later, dragging death changes town, MSNBC.com (June 6, 2008),
http://www.msnbc.msn.com/id/25008925/38706994. Byrd, a 49-year-old African
American man, was beaten by three white men who then chained him by the ankles to the
bumper of a Ford pickup, and dragged him down the street. Id.
Id. at 334-35 (citation omitted). Judge Niemeyer dissented. Id. at 337.
4. Severe or Pervasive
Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 111 Fair Empl.Prac.Cas. (BNA) 51
(4th Cir. 2010), reversed in part and affirmed in part the grant of summary judgment to the Title
VII hostile-environment defendant. Plaintiff was in the Western Maryland Police Academy, and
was in the process of applying for a position as a police officer with the Hagerstown Police
Department. The City of Hagerstown was deemed her employer. She did not pass the Academy
because she failed the firearms qualification test on the last day. The court held that she had
shown adequate evidence that the sexually hostile environment was severe or pervasive:
The work environment was severe or pervasive enough to sustain Mosby-Grant's
sex claim, but not her race claim. In measuring whether the offensive conduct is severe or
pervasive enough to warrant relief, we must look at the totality of the circumstances,
including: the frequency of the discriminatory conduct; its severity; whether it is
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40
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance. . . . Nonetheless, Title
VII does not create a general civility code in the workplace; it only proscribes behavior
that is so objectively offensive as to alter the conditions' of the victim's employment.
. . .
Id. at 335. The court relied on the frequency of sexist and demeaning comments directed at other
women and at her personally, the fact that instructors participated in the remarks, and fellow
recruits frequent discussions of their sexual experiences with an underage girl. The court also
relied on the use of racially charged terms to find that the sexually hostile working environment
was severe and pervasive: When viewed cumulatively with the evidence of sex-based
harassment, the recruits' use of racially charged terms like honky, cracker, and fucking
Mexicans may also lead a jury to reasonably conclude that a discriminatory atmosphere was
pervasive at the Academy. Id. at 335-36 (citation omitted). Finally, the court relied on the
effect of this conduct on plaintiff:

The conduct was also severe and humiliating in as far as it caused Mosby-Grant
significant emotional distress with Mosby-Grant openly becoming emotional at work and
regularly leaving work in tears. The effect and source of the harassment were also noticeable
to Mosby-Grant's superiors, including Detective Yonkers and Lieutenant Kline, and other
recruits. . . . Dr. Tellefsen's expert diagnosis may also support a reasonable finding that the
Academy experience had an injurious effect on Mosby-Grant's mental health. . . .

Further, on at least one occasion, during the EVOC course, instructors had to
intervene to prevent the male recruits' behavior from having an adverse affect on Mosby-
Grant's work performance. It may also be reasonable for a jury to infer, based on the
testimony of Mosby-Grant, King and Wood, that the male recruits' snickering during
firearms testing was directed at Mosby-Grant and, but-for that harassment, she would have
succeeded on qualification day. . . .
Id. at 336. However, the court held that plaintiffs evidence of a racially hostile environment
was not enough to show that it was severe or pervasive:
Following the single incident wherein Mosby-Grant overheard racist comments, the
offending recruit immediately apologized, and explained that he and the biracial recruit
had been joking with one another. . . . Although another recruit did openly disparage
Mexicans, his repugnant remarks were made only two times in five months and, although
not dispositive, his remarks were also never directed at Mosby-Grant. . . .
Id. The court did not explain how this evidence of a racially hostile atmosphere could be used to
help plaintiff establish that the sexually hostile environment was severe and pervasive, but was
not enough to show that the racially hostile environment was severe or pervasive. The court did
state: We are keenly aware of the difficulties inherent in parsing out Title VII claims brought by
individuals, e.g., African American women, who fall under more than one protected class. We
also recognize that a hostile work environment claim can be bolstered by relying on evidence of
a workplace tainted by both sex and racial discrimination. Id. It also stated that, since plaintiff
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did not raise the issue of a hybrid race-and-sex hostile environment, it had no occasion to address
that issue. Id. at 337 n.4. Judge Niemeyer dissented. Id. at 337.
5. Unwelcomeness
Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 334, 111 Fair Empl.Prac.Cas. (BNA)
51 (4th Cir. 2010), reversed in part and affirmed in part the grant of summary judgment to the
Title VII hostile-environment defendant. Plaintiff was in the Western Maryland Police
Academy, and was in the process of applying for a position as a police officer with the
Hagerstown Police Department. The City of Hagerstown was deemed her employer. The court
held that plaintiffs repeated complaints about sexual and racial remarks showed that the conduct
was unwelcome. Judge Niemeyer dissented. Id. at 337.
6. Conditions of Employers Vicarious Liability
Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 337, 111 Fair Empl.Prac.Cas. (BNA)
51 (4th Cir. 2010), reversed in part and affirmed in part the grant of summary judgment to the
Title VII hostile-environment defendant. Plaintiff was in the Western Maryland Police
Academy, and was in the process of applying for a position as a police officer with the
Hagerstown Police Department. The City of Hagerstown was deemed her employer. The court
held that plaintiffs repeated complaints about sexual and racial remarks, as well as superior
officers own observations, showed that the defendant was well aware of the harassment, but
there was no evidence that they took any positive action. The initial sexual harassment training
was never supplemented, and the only active step taken by the Academy was to segregate the
plaintiff. The court held that the non-response raised a triable issue whether the City was entitled
to the affirmative defense. Judge Niemeyer dissented. Id. at 337.
Sutherland v. Wal-Mart Stores, Inc., 632 F.3d 990, 111 Fair Empl.Prac.Cas. (BNA) 495
(7th Cir. 2011), affirmed the grant of summary judgment to the Title VII sexual harassment
defendant because defendant began its investigation of plaintiffs complaint the same day she
complained. While the investigation confirmed several allegations of the complaint, it was
inconclusive of the most serious allegation: that the co-worker harasser had cupped plaintiffs
breast. Defendant decided not to fire the harasser, but gave him a Decision-Making Day, and
arranged his schedule and plaintiffs schedule so that they only overlapped for 90 minutes a
week, and worked 80 feet apart at that time. The court held that this was a sufficient response.
See the discussion of this case below.
7. Employers Duty to Cure Any Harassment That Does Occur
Sutherland v. Wal-Mart Stores, Inc., 632 F.3d 990, 111 Fair Empl.Prac.Cas. (BNA) 495
(7th Cir. 2011), affirmed the grant of summary judgment to the Title VII sexual harassment
defendant because defendant began its investigation of plaintiffs complaint the same day she
complained. The court rejected plaintiffs argument that defendant failed to take strong enough
corrective action on another womans earlier complaint of harassment, and thus failed to protect
plaintiff. The court relied on the fact that the earlier conduct was insufficient to constitute
harassment, that defendant had responded appropriately with two verbal warnings, and that the
conduct in question had stopped. As to the harassment of the plaintiff, the court rejected
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plaintiffs argument that defendant should have fired the harasser, or at least separated them by
more than eighty feet. It explained that the steps defendant took were successful, and stated:
But the steps Walmart failed to take are only relevant if the steps it actually took were not
reasonably likely to end the harassment. Id. at p. *4.
8. Failure to Complain, and Adequacy of Complaints
Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 337, 111 Fair Empl.Prac.Cas. (BNA)
51 (4th Cir. 2010), reversed in part and affirmed in part the grant of summary judgment to the
Title VII hostile-environment defendant. Plaintiff was in the Western Maryland Police
Academy, and was in the process of applying for a position as a police officer with the
Hagerstown Police Department. The City of Hagerstown was deemed her employer. The court
held that plaintiffs repeated complaints about sexual and racial remarks, as well as superior
officers own observations, showed that the defendant was well aware of the harassment, but
there was no evidence that they took any positive action. While plaintiff did not report all of the
conduct to which she had been subjected, she reported enough to support defendants liability.
Judge Niemeyer dissented. Id. at 337.
J. Taking Documents
Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 8 A.3d 209, 110 Fair Empl.Prac.Cas.
(BNA) 1688 (N.J. 2010), reinstated the jury verdict for plaintiff. The court outlined the issues
before it:
Plaintiff Joyce Quinlan, then the Executive Director of Human Resources for
defendant Curtiss-Wright Corporation, believed that the company had discriminated
against her when it promoted a man she thought was less qualified than she and made
him her supervisor. In an effort to prove that her suspicions were true and that defendant
was engaged in widespread sex discrimination, plaintiff gathered documents that were
available to her in the ordinary course of her employment and turned copies of them over
to an attorney. During discovery in her discrimination lawsuit, defendant learned that
plaintiff had taken, and was continuing to take, copies of hundreds of documents it
considered to be confidential. Following disclosure of one document that was particularly
helpful to plaintiff's claim that she had been discriminated against when she was not
selected for the promotion, defendant fired her. The letter terminating plaintiff from her
employment accused her of breach of company policies and theft. Believing that
defendant had fired her because of the prosecution of her discrimination claim, plaintiff
added a retaliation claim to her pending lawsuit.
After a lengthy and hard-fought trial, the jury agreed with plaintiff, awarding her
substantial compensatory and punitive damages. In the appeal that followed, the verdict
in her favor on the retaliation claim was reversed and remanded for a new trial and the
punitive award was vacated in its entirety. . . .
Plaintiff asks this Court to read the Law Against Discrimination (LAD), N.J.S.A.
10:5-1 to -42, broadly so that it provides complete protection for any employee who
copies and takes company documents for the purpose of helping in the prosecution of a
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discrimination claim. She argues that because she was motivated by the need to assist in
the prosecution of her lawsuit and because she disclosed the documents only to her
attorneys, permitting defendant to fire her for her conduct would be contrary to the strong
remedial purposes of the LAD.
Defendant insists that the employer's right to conduct its business and its right to
demand loyalty of its employees is paramount. It argues that if this Court adopts the
approach championed by plaintiff, the effect will be to insulate conduct that is a clear
ground for termination merely because an employee had the sense to limit the disclosure
of the company's confidential documents to a lawyer. Defendant cautions this Court not
to create circumstances in which employees will be encouraged to rummage through
employers' files hoping to find something to use as a shield against what would be an
otherwise permissible termination of their employment.
Id. at 244-45. The court surveyed decisions under the Federal antidiscrimination laws,
particularly those under the opposition clause in Title VII, and found that the Sixth Circuits
decision in Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 103 Fair Empl.Prac.Cas. (BNA)
1257 (6th Cir. 2008), came closest to its analysis, but decided that it had to expand Niswander to
give effect to the strong remedial purposes of New Jerseys Law Against Discrimination. Its
resulting balancing test is as follows:
First, the court should evaluate how the employee came to have possession of, or
access to, the document. If the employee came upon it innocently, for example, in the
ordinary course of his or her duties for the employer, this factor will generally favor the
employee. In that evaluation, it will not be necessary that the employee came upon the
document either inadvertently or accidentally, but it will suffice if the employee came
into possession of the document in the ordinary course of his or her duties. If, however,
the discovery of the document was due to the employee's intentional acts outside of his or
her ordinary duties, the balance will tip in the other direction. Therefore, the employee
who finds a document by rummaging through files or by snooping around in offices of
supervisors or other employees will not be entitled to claim the benefit of this factor.
Second, the court should evaluate what the employee did with the document. If
the employee looked at it, copied it and shared it with an attorney for the purpose of
evaluating whether the employee had a viable cause of action or of assisting in the
prosecution of a claim, the factor will favor the employee. On the other hand, if the
employee copied the document and disseminated it to other employees not privileged to
see it in the ordinary course of their duties or to others outside of the company, this factor
will balance in the employer's favor.
Third, the court should evaluate the nature and content of the particular document
in order to weigh the strength of the employer's interest in keeping the document
confidential. If the document is protected by privilege, in whole or in part, if it reveals a
trade secret or similar proprietary business information, or if it includes personal or
confidential information such as Social Security numbers or medical information about
other people, whether employees or customers, the employer's interest will be strong.
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Fourth, the court should also consider whether there is a clearly identified
company policy on privacy or confidentiality that the employee's disclosure has violated.
The evaluation of this factor should take into account considerations about whether the
employer has routinely enforced that policy, and whether, in the absence of a clear
policy, the employee has acted in violation of a common law duty of loyalty to the
employer.
Fifth, the court should evaluate the circumstances relating to the disclosure of the
document to balance its relevance against considerations about whether its use or
disclosure was unduly disruptive to the employer's ordinary business. In evaluating
disruptiveness, the court may consider the manner or the timing of the disclosure or use
of the document. However, the focus must be on whether the use or disclosure of the
document unduly disrupted the employer's business, rather than on any effect it had on
individual company representatives. Thus, for example, if the document had marginal
relevance to the claim of discrimination, but was intended to be used merely to cast unfair
aspersions, to divert the attention of the jury, or to sensationalize the trial, this factor
would weigh in the balance against the employee. On the other hand, if the document was
central to the discrimination claim and merely troubling or upsetting to the employee to
whom it related, the factor will more likely weigh in favor of the employee.
Sixth, the court should evaluate the strength of the employee's expressed reason
for copying the document rather than, for example, simply describing it or identifying its
existence to counsel so that it might be requested in discovery. In this evaluation, the
court should consider whether there is evidence that demonstrates that, in the absence of
the employee's act of copying the document, there was a likelihood that the employer
would not maintain it, or would have discarded it in the ordinary course of business, that
it would have been destroyed, or that its authenticity would be called into doubt. As part
of this evaluation the court may also consider whether the document would be critical to
the case, like the true smoking gun, such that the employee's perceived need to preserve
it would be entitled to greater weight in light of the significance of the risk of its loss.
Last, but of the utmost importance, the court should evaluate how its decision in
the particular case bears upon two fundamental considerations that are often in conflict in
matters such as these. First, the court must be cognizant of the broad remedial purposes
the Legislature has advanced through our laws against discrimination, including the
LAD. Second, the court must consider the effect, if any, that either protecting the
document by precluding its use or permitting it to be used will have upon the balance of
legitimate rights of both employers and employees. Courts should apply the two parts of
this final factor with great care, utilizing them as a supplement rather than a substitute for
the multi-factor test we have created. Although in a close case, for example, the broad
remedial purposes of the LAD might tip the balance, courts should be vigilant lest they
err by overlooking the myriad considerations that make up the test we today announce.
In making these evaluations, the court must be mindful that both employers and
employees have legitimate rights. Employers have the right to operate their businesses
within the bounds of the law and legitimately expect that they will have the loyalty of
their employees as they do so. Employees have the right to be free of discrimination in
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their employment and the right to speak out when they are subjected to treatment that
they reasonably believe violates that right. Balancing all of those considerations is a
difficult and important task.
Id. at 269-71. The court stated that its decision would not open the floodgates to the wholesale
taking of documents. We, however, do not share the concern that employers will be powerless
to discipline employees who take documents when they are not privileged to do so. On the
contrary, employees may still be disciplined for that behavior and even under the best of
circumstances, run the significant risk that the conduct in which they engage will not be found by
a court to fall within the protection our test creates. The risk of self-help is high and the risk that
a jury will reject a plaintiff's argument that he or she was fired for using the document, rather
than for finding it and taking it in the first place, will serve as an important limitation upon any
realization of the fears that the employers have expressed to the Court. Id. at 272. Here,
plaintiff examined documents wholesale but only gave relevant documents to her attorneys. The
jury reasonably decided that she was fired for using documents, not for taking them.
Accordingly, the retaliation verdict was reinstated. Id. at 272-73. Judge Albin dissented. Id. at
277-83.
K. Privacy of E-Mails
Stengart v. Loving Care Agency, Inc., 201 N.J. 300, 307-08, 990 A.2d 650, 108 Fair
Empl.Prac.Cas. (BNA) 1558, 30 IER Cases 873 (N.J. 2010), succinctly stated its holding:
This case presents novel questions about the extent to which an employee can
expect privacy and confidentiality in personal e-mails with her attorney, which she
accessed on a computer belonging to her employer. Marina Stengart used her company-
issued laptop to exchange e-mails with her lawyer through her personal, password-
protected, web-based e-mail account. She later filed an employment discrimination
lawsuit against her employer, Loving Care Agency, Inc. (Loving Care), and others.
In anticipation of discovery, Loving Care hired a computer forensic expert to
recover all files stored on the laptop including the e-mails, which had been automatically
saved on the hard drive. Loving Care's attorneys reviewed the e-mails and used
information culled from them in the course of discovery. In response, Stengart's lawyer
demanded that communications between him and Stengart, which he considered
privileged, be identified and returned. Opposing counsel disclosed the documents but
maintained that the company had the right to review them. Stengart then sought relief in
court.
The trial court ruled that, in light of the company's written policy on electronic
communications, Stengart waived the attorney-client privilege by sending e-mails on a
company computer. The Appellate Division reversed and found that Loving Care's
counsel had violated RPC 4.4(b) by reading and using the privileged documents.
We hold that, under the circumstances, Stengart could reasonably expect that e-
mail communications with her lawyer through her personal account would remain
private, and that sending and receiving them via a company laptop did not eliminate the
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attorney-client privilege that protected them. By reading e-mails that were at least
arguably privileged and failing to notify Stengart promptly about them, Loving Care's
counsel breached RPC 4.4(b). We therefore modify and affirm the judgment of the
Appellate Division and remand to the trial court to determine what, if any, sanctions
should be imposed on counsel for Loving Care.
The court held that plaintiff had a reasonable subjective expectation of privacy despite the
companys policy, because she used her own web-based e-mail account, protected it with a
password, and did not store her password on her company-issued laptop. Id. at 322. Moreover,
the companys policy was silent on the key issues, making her expectation of privacy objectively
reasonable as well:
In light of the language of the Policy and the attorney-client nature of the
communications, her expectation of privacy was also objectively reasonable. As noted
earlier, the Policy does not address the use of personal, web-based e-mail accounts
accessed through company equipment. It does not address personal accounts at all. Nor
does it warn employees that the contents of e-mails sent via personal accounts can be
forensically retrieved and read by the company. Indeed, in acknowledging that
occasional personal use of e-mail is permitted, the Policy created doubt about whether
those e-mails are company or private property.
Id. The court added an important qualifier: Moreover, the e-mails are not illegal or
inappropriate material stored on Loving Care's equipment, which might harm the company in
some way. Id. (citations omitted). Finally, the e-mails themselves contained warnings: In
addition, the e-mails bear a standard hallmark of attorney-client messages. They warn the reader
directly that the e-mails are personal, confidential, and may be attorney-client communications.
While a pro forma warning at the end of an e-mail might not, on its own, protect a
communication . . . other facts present here raise additional privacy concerns. Id. The court
rejected defendants argument that she waived privilege by using its system: As to whether
Stengart knowingly disclosed the e-mails, she certified that she is unsophisticated in the use of
computers and did not know that Loving Care could read communications sent on her Yahoo
account. Use of a company laptop alone does not establish that knowledge. Nor does the Policy
fill in that gap. Under the circumstances, we do not find either a knowing or reckless waiver.
Id. at 324. The court held that even a better-written company policy would not change the
outcome:
Our conclusion that Stengart had an expectation of privacy in e-mails with her
lawyer does not mean that employers cannot monitor or regulate the use of workplace
computers. Companies can adopt lawful policies relating to computer use to protect the
assets, reputation, and productivity of a business and to ensure compliance with
legitimate corporate policies. And employers can enforce such policies. They may
discipline employees and, when appropriate, terminate them, for violating proper
workplace rules that are not inconsistent with a clear mandate of public policy. . . . For
example, an employee who spends long stretches of the workday getting personal,
confidential legal advice from a private lawyer may be disciplined for violating a policy
permitting only occasional personal use of the Internet. But employers have no need or
basis to read the specific contents of personal, privileged, attorney-client communications
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in order to enforce corporate policy. Because of the important public policy concerns
underlying the attorney-client privilege, even a more clearly written company manual-
that is, a policy that banned all personal computer use and provided unambiguous notice
that an employer could retrieve and read an employee's attorney-client communications,
if accessed on a personal, password-protected e-mail account using the company's
computer system-would not be enforceable.
Id. at 324-25 (citations omitted). Finally, the court rejected defendants argument that plaintiff
had left the e-mails behind on her laptop, because she did not know that the system saved e-mails
in temporary cache files, and the company had to hire a forensic expert to review them. The
court held that defense counsel had an obligation to stop reading the e-mails when they realized
that they involved privileged communications, and had an obligation to notify plaintiff and the
court to seek a ruling before proceeding. The court remanded the case to the trial court to
determine the significance of the e-mails and the appropriate sanction. Id. at 325-27.
Holmes v. Petrovich Development Co., 191 Cal.App.4th 1047, 1068-69, 119 Cal.Rptr.3d
878, 111 Fair Empl.Prac.Cas. (BNA) 424 (Cal.App. 3d Dist. 2011), distinguished Stengart and
held that plaintiff had no reasonable expectation of privacy in e-mails with her attorney under a
different set of facts: Holmes used her employer's company e-mail account after being warned
that it was to be used only for company business, that e-mails were not private, and that the
company would randomly and periodically monitor its technology resources to ensure
compliance with the policy.
Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y.
2008), surveyed cases and discussed employees reasonable expectations of privacy
notwithstanding employer policies stating that no e-mails sent over company equipment were
private and that the employer could read all of them. In the case at bar, plaintiffs accessed
defendants private e-mail accounts that were not stored on plaintiffs system, using usernames
and passwords that did appear in e-mails. The court held that this violated the Stored
Communications Act, 18 U.S.C. 2701. The court stated:
There is no sound basis to argue that Fell, by inadvertently leaving his Hotmail
password accessible, was thereby authorizing access to all of his Hotmail e-mails, no less
the e-mails in his two other accounts. If he had left a key to his house on the front desk at
PPBC, one could not reasonably argue that he was giving consent to whoever found the
key, to use it to enter his house and rummage through his belongings. And, to take the
analogy a step further, had the person rummaging through the belongings in Fell's house
found the key to Fell's country house, could that be taken as authorization to search his
country house. We think not. The Court rejects the notion that carelessness equals
consent.
Id. at 561.
L. Independent Judgment
Staub v. Proctor Hospital, __ U.S. __, 2011 WL 691244 (March 1, 2011) (Scalia, J.),
reversed the Seventh Circuits decision reported at 560 F. 3d 647 (7th Cir. 2009). The case
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involved a termination challenged under USERRA, where there was clear evidence of anti-
military bias by plaintiffs first- and second-level supervisors, Janice Mulally and Michael
Korenchuk, and clear evidence that they wanted to get rid of him, and a clueless decisionmaker,
Linda Buck, who was the Vice-President of Human Resources. Ms. Buck relied on the
representations of the supervisors, a complaint about plaintiff from a co-worker, Angie Day, and
a review of plaintiffs personnel file. Ms. Buck did nothing to check the facts, even after
plaintiff filed an internal complaint that the reasons for his termination had been fabricated. The
Court rejected the argument that defendant was immunized from liability because the
decisionmaker had exercised independent judgment:
Moreover, the approach urged upon us by Proctor gives an unlikely meaning to a
provision designed to prevent employer discrimination. An employer's authority to
reward, punish, or dismiss is often allocated among multiple agents. The one who makes
the ultimate decision does so on the basis of performance assessments by other
supervisors. Proctor's view would have the improbable consequence that if an employer
isolates a personnel official from an employee's supervisors, vests the decision to take
adverse employment actions in that official, and asks that official to review the
employee's personnel file before taking the adverse action, then the employer will be
effectively shielded from discriminatory acts and recommendations of supervisors that
were designed and intended to produce the adverse action. That seems to us an
implausible meaning of the text, and one that is not compelled by its words.
Id. at p. *5.

M. Independent Investigations
Staub v. Proctor Hospital, __ U.S. __, 2011 WL 691244 (March 1, 2011) (Scalia, J.),
reversed the Seventh Circuits decision reported at 560 F. 3d 647 (7th Cir. 2009). The case
involved a termination challenged under USERRA, where there was clear evidence of anti-
military bias by plaintiffs first- and second-level supervisors, Janice Mulally and Michael
Korenchuk, and clear evidence that they wanted to get rid of him, and a clueless decisionmaker,
Linda Buck, who was the Vice-President of Human Resources. Ms. Buck relied on the
representations of the supervisors, a complaint about plaintiff from a co-worker, Angie Day, and
a review of plaintiffs personnel file. Ms. Buck did nothing to check the facts, even after
plaintiff filed an internal complaint that the reasons for his termination had been fabricated. The
Court rejected the argument that defendant was immunized from liability because the
decisionmaker had conducted an independent investigation:
Proctor suggests that even if the decisionmaker's mere exercise of independent
judgment does not suffice to negate the effect of the prior discrimination, at least the
decisionmaker's independent investigation (and rejection) of the employee's allegations of
discriminatory animus ought to do so. We decline to adopt such a hard-and-fast rule. As
we have already acknowledged, the requirement that the biased supervisor's action be a
causal factor of the ultimate employment action incorporates the traditional tort-law
concept of proximate cause. . . . Thus, if the employer's investigation results in an adverse
action for reasons unrelated to the supervisor's original biased action (by the terms of
USERRA it is the employer's burden to establish that), then the employer will not be
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liable. But the supervisor's biased report may remain a causal factor if the independent
investigation takes it into account without determining that the adverse action was, apart
from the supervisor's recommendation, entirely justified. We are aware of no principle in
tort or agency law under which an employer's mere conduct of an independent
investigation has a claim-preclusive effect. Nor do we think the independent
investigation somehow relieves the employer of fault. The employer is at fault because
one of its agents committed an action based on discriminatory animus that was intended
to cause, and did in fact cause, an adverse employment decision.
Id. at p. *6 (citation omitted).
VI. Litigation
A. Exhaustion
Bonds v. Leavitt, 629 F.3d 369, 379-80, 111 Fair Empl.Prac.Cas. (BNA) 171, 31 IER
Cases 1078 (4th Cir. 2011), reversed the dismissal of plaintiffs claims under the Civil Service
Reform Act of 1978, holding that plaintiff adequately raised her CSRA claims in her mixed-case
EEO complaint. The court stated that because administrative charges are not typically
completed by lawyers, they must be construed liberally. Id. at 379. The court held that
plaintiffs allegation that she had been accused of committing acts she did not commit, and that
her firing was overly harsh, adequately raised her CSRA claims. It stated: The claim, in other
words, is that, even aside from any improper motivations behind her firing, her firing was not
warranted. Id. at 380.
B. Timeliness
1. Promotional Rosters
Lewis v. City of Chicago, __ U.S. __, 130 S. Ct. 2191, 109 Fair Empl.Prac.Cas. (BNA)
449 (2010), involved the timeliness of a disparate-impact challenge to a hiring test. Twenty-six
thousand candidates took the July 1995 test. Based on scores, in January 1996 the City separated
the candidates into a well-qualified group, a qualified group, and an unqualified group.
The latter were sent immediate rejection letters. The qualified group were sent letters telling
them that the City planned to make hires from the well-qualified group until that group was
exhausted and that it was unlikely that they would be hired, but that they would be kept on the
eligibility list in case they could be reached. The City made ten batches of hires from this list
from 1996 through 2002. The plaintiffs filed their EEOC charges starting in March 1997, more
than 300 days after the City established the lists and sent the letters. The Seventh Circuit held
that the claims were untimely, because the Citys adoption of the lists was the relevant
employment practice. The Supreme Court reversed. Justice Scalia, writing for a unanimous
Court, quoted the language of 703(k)(1)(a)(i) of Title VII, 42 U.S.C. 2000e-2(k)(1)(a)(i),
stated at 2197-98:
Thus, a plaintiff establishes a prima facie disparate-impact claim by showing that the
employer uses a particular employment practice that causes a disparate impact on one
of the prohibited bases. Ibid. (emphasis added). See Ricci v. DeStefano, 557 U.S. ----,
----, 129 S.Ct. 2658, 2672-2673, 174 L.Ed.2d 490 (2009).
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Petitioners' claim satisfies that requirement. Title VII does not define
employment practice, but we think it clear that the term encompasses the conduct of
which petitioners complain: the exclusion of passing applicants who scored below 89
(until the supply of scores 89 or above was exhausted) when selecting those who would
advance. The City use[d] that practice in each round of selection. Although the City
had adopted the eligibility list (embodying the score cutoffs) earlier and announced its
intention to draw from that list, it made use of the practice of excluding those who scored
88 or below each time it filled a new class of firefighters. Petitioners alleged that this
exclusion caused a disparate impact. Whether they adequately proved that is not before
us. What matters is that their allegations, based on the City's actual implementation of its
policy, stated a cognizable claim.
(Emphasis in original.) The Court rejected the Citys argument that the only time to challenge
the test was at the outset:
The City's premise is sound, but its conclusion does not follow. It may be true that
the City's January 1996 decision to adopt the cutoff score (and to create a list of the
applicants above it) gave rise to a freestanding disparate-impact claim. Cf. Connecticut v.
Teal, 457 U.S. 440, 445-451, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). If that is so, the
City is correct that since no timely charge was filed attacking it, the City is now entitled
to treat that past act as lawful. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97
S.Ct. 1885, 52 L.Ed.2d 571 (1977). But it does not follow that no new violation
occurredand no new claims could arisewhen the City implemented that decision
down the road. If petitioners could prove that the City use[d] the practice that
causes a disparate impact, they could prevail.
Id. at 2198-99. The Court distinguished cases involving discriminatory intent, and held that
implementation is a triggering act for a disparate-impact claim. The Court rejected the Seventh
Circuits reasoning that there were only superficial differences between a disparate-treatment
claim and a disparate-impact claim. If the effect of applying Title VII's text is that some claims
that would be doomed under one theory will survive under the other, that is the product of the
law Congress has written. It is not for us to rewrite the statute so that it covers only what we
think is necessary to achieve what we think Congress really intended. Id. at 2199-2200.
2. Present Effects of Past Discrimination Under the Ledbetter Fair Pay
Act
Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 375, 108 Fair Empl.Prac.Cas.
(BNA) 795 (D.C. Cir. 2010), affirmed the grant of summary judgment to defendant on the
ADEA claim involving failure to promote to partner. The time to challenge the promotion
decision had expired, and the court held that the time was not revived by the phrase or other
practice in the Lilly Ledbetter Fair Pay Act despite its effect on compensation. The court held
that the phrase other practice was limited to the type of practice in the Ledbetter case itself,
where a discriminatory performance appraisal was responsible for the challenged compensation
decision. The court concluded: For these reasons, we conclude the decision whether to promote
an employee to a higher paying position is not a compensation decision or other practice within
the meaning of that phrase in the LLA and Schuler's failure-to-promote claim is not a claim of
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discrimination in compensation. The LLA therefore does not revive his claims under the
ADEA. (Footnote omitted.)
3. EEOCs Oral Notice of Right to Sue Does Not Start Clock Running
DeTata v. Rollprint Packaging Products Inc., 632 F.3d 962, 111 Fair Empl.Prac.Cas.
(BNA) 295 (7th Cir. 2011), vacated the dismissal of plaintiffs Complaint as untimely. The
court held that the EEOCs oral notice of issuance of a right-to-sue letter was insufficient to start
the 90-day period running. It summarized the case succinctly: The EEOC dismissed DeTata's
case, and it mailed a right-to-sue letter, but that letter never reached DeTata and was returned to
the agency as undeliverable. DeTata learned about the agency's action only when she telephoned
to check on her case. At that point, the EEOC re-sent the right-to-sue letter and a copy of her
file; she filed this suit within two months of receiving those materials. The district court,
however, using the date of DeTata's phone call as the beginning of the 90-day period in which
she had to file her suit, granted Rollprint's motion to dismiss on the ground that her suit was
untimely. We conclude that, under the facts of this case, the telephone call did not satisfy the
notice requirements of 42 U.S.C. 2000e-5(f)(1). We therefore vacate the district court's
judgment and remand the case for further proceedings. I.d at p. *1. The court also held that
receipt of the notice of right to sue by a third party who claimed to represent the plaintiff was not
enough to start the suit-filing period, where plaintiff contended that she was not represented by
the third party at the time the letter was mailed. The court held that a hearing was necessary in
order to resolve that contention.
4. Tolling Because of Mental Incapacity
Wilkie v. Department of Health and Human Services, __ F.3d __, 2011 WL 1563998 (8th
Cir. April 27, 2011 (No. 10-1916), affirmed the grant of summary judgment against the Title VII
sexual harassment plaintiff, rejecting her claim that mental incapacity tolled her time to contact
an EEO counselor. The court stated at pp. *5 to *6:
Here, to support her claim of mental incapacity, Dr. Wilkie relies on the testimony
of Dr. Kathleen HughesKuda, a psychiatrist who opined that Dr. Wilkie seemed pretty
stressed and depressed during the period of 2003 to 2005. Dr. HughesKuda also
testified that she personally witnessed Bercier's intrusions at Dr. Wilkie's home and saw
the stress and depression that the intrusions caused Dr. Wilkie. Dr. Wilkie also relies on
the testimony of John Wegerle, a friend, who testified that Dr. Wilkie was depressed and
stressed during this time period.
But, as in Jessie, neither Dr. HughesKuda's nor Wegerle's testimony satisfies the
high standard for tolling due to mental incapacity. Like in Jessie, the testimony
describing her dis-abilities mentions depression, but it gives no further information
that would shed light on whether the depression affected her ability to understand her
legal rights or act upon them. 516 F.3d at 715. And, Dr. Wilkie has filed no medical
records or opinions indicating that she was deprived of her reasoning faculties or was
incapable of understanding or managing her affairs. Id.
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5. Hostile Environment
Papelino v. Albany College of Pharmacy of Union University, 633 F.3d 81 (2d Cir.
2011), reversed in part and affirmed in part the grant of summary judgment against the Title IX
student plaintiffs. The court described the case succinctly at 92: In this case, plaintiff-appellant
Daniel Papelino alleges that he was sexually harassed by a professor when he was enrolled as a
student at the defendant-appellee Albany College of Pharmacy (the College). He complained
to the Associate Dean of Student Affairs. Shortly thereafter, the College accused Papelino and
his two roommates, plaintiff-appellant Michael Yu and plaintiff Carl Basile, of cheating on
exams. All three were disciplined, and Papelino and Basile were expelled. Most of these
events occurred outside the three-year period of limitations applicable to the Title IX claims.
However, the Honor Code hearing was held within the three years before suit was filed. The
court described the evidence of cheating as consisting primarily of statistical charts that Prof.
Nowak, the alleged harasser had prepared, and continued: During the hearing, Nowak leaned
over while showing a document to plaintiffs, whereby her shirt fell forward and plaintiffs were
exposed to her bare breasts. The Student Honor Code Committee found Papelino guilty of
cheating in three classes, Basile guilty of cheating in six classes, and Yu guilty of cheating in one
class. Id. at 87. Plaintiffs sued on May 8, 2001. The district court concluded that the only
harassing event alleged to have occurred within the three years prior to filing of suit was when
Nowak purportedly exposed her breasts to plaintiffs at the Honor Code hearing on May 20, 1998.
The district court held that this incident was not sufficiently severe to constitute actionable
sexual harassment. Id. at 90-91. The court held that this incident was part of the same pattern
of harassment, making the entire course of conduct timely challenged:
We reverse. First, the incident at the Honor Code hearing cannot be so easily
dismissed. Nowak's alleged exposure of her breasts at the hearing cannot be viewed in
isolation. In context, a jury could reasonably find that Nowak engaged in the conduct as
a final sexual taunting of Papelino and the others.
Id. at 91. The court continued, holding that the conduct of the Honor Code hearing was part of
the pattern of retaliation:
Second, the record contains evidence of other incidents of hostile conduct within
the three-year limitations period. For example, after plaintiffs were notified by email on
May 8, 1998 of the cheating charges, Nowak spearheaded the prosecution of the charges
by meeting with other professors and leading the presentation of the evidence. A
reasonable jury could find that Nowak engaged in this conduct because Papelino rejected
her sexual advances, and that these actions were part of a pattern of pervasive conduct
that was sufficiently hostile or abusive to alter the conditions of Papelino's educational
environment. While this adverse treatment was not overtly sexual in nature, in the
circumstances here, a reasonable jury could find that it was on account of sex. . . .
Moreover, under the continuing violation doctrine, a plaintiff may bring claims for
discriminatory acts that would have been barred by the statute of limitations as long as
an act contributing to that hostile environment [took] place within the statutory time
period. . . . A reasonable jury could find that the post-May 8, 1998 conduct was part of a
continuing course of conduct that began with Novak's earlier sexual advances.
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Id. (citations omitted).
Wilkie v. Department of Health and Human Services, __ F.3d __, 2011 WL 1563998 (8th
Cir. April 27, 2011 (No. 10-1916), affirmed the grant of summary judgment against the Title VII
sexual harassment plaintiff, rejecting her claim that the nonsexual, undermining conduct within
45 days of her informal complaint the was part of the same pattern as the sexualized conduct
outside the time period. The court explained at p. *7:
Here, Dr. Wilkie has failed to show how Bercier's alleged misconduct in 2004 is
so similar in nature, frequency, and severity to the misconduct occurring in July 2005
and thereafter. . . . As the district court noted, the harassing acts that occurred in 2004
were substantially different than those that occurred in 2005. The 2004 acts can be
characterized as sexual advances and include Bercier coming to Dr. Wilkie's home
while intoxicated, making comments regarding the two dating, playing footsie with Dr.
Wilkie, pointing a laser at her inappropriately, and entering Dr. Wilkie's home and
passing out naked in her bed.

By contrast, the 2005 acts did not involve personal, sexual advances made upon
Dr. Wilkie by Bercier or any other coworker. The alleged harassment was markedly
different, including (1) Bercier withholding information from her relating to one of her
subordinates, Dr. Plasse, taking pharmaceuticals from the emergency room; (2) Bercier
telling another subordinate, Dr. Earls, not to tell Dr. Wilkie about the pharmaceuticals
theft because Dr. Plasse and Dr. Wilkie were having an affair and Dr. Wilkie was under
psychiatric care; (3) Bercier attending a medical staff meeting and making comments that
Dr. Wilkie felt were confrontational to her and others; (4) Bercier questioning Dr. Wilkie
about comments that she had made to a coworker; (5) Bercier contacting Dr. Wilkie
about her inefficiencies monitoring physicians and the time it takes to transfer medical
charts; (6) Bercier referring patients with complaints regarding the pharmacy to Dr.
Wilkie; (7) Dr. Plasse and Dr. Lau calling a meeting of members of the medical staff to
address Dr. Wilkie's position as clinical director, resulting in a no confidence vote; (8)
several doctors verbally complaining to Parker about Dr. Wilkie, and Parker sending Dr.
Wilkie a letter regarding the complaints; (9) the interviewing of several staff members
regarding Dr. Wilkie's job performance; and (10) Parker denying Dr. Wilkie's leave to
attend a continuing medical education course in Las Vegas.
C. Bars to Suit
1. Internal Exhaustion?
Staub v. Proctor Hospital, __ U.S. __, 2011 WL 691244 (March 1, 2011) (Scalia, J.),
reversed the Seventh Circuits decision reported at 560 F. 3d 647 (7th Cir. 2009). The Court
stated at p. *6, n.4: We also observe that Staub took advantage of Proctor's grievance process,
and we express no view as to whether Proctor would have an affirmative defense if he did not.
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2. Immunity for Actions of Co-Workers?
Staub v. Proctor Hospital, __ U.S. __, 2011 WL 691244 (March 1, 2011) (Scalia, J.),
reversed the Seventh Circuits decision reported at 560 F. 3d 647 (7th Cir. 2009). The Court
stated at p. *6, n.4: Needless to say, the employer would be liable only when the supervisor acts
within the scope of his employment, or when the supervisor acts outside the scope of his
employment and liability would be imputed to the employer under traditional agency principles.
. . . We express no view as to whether the employer would be liable if a co-worker, rather than a
supervisor, committed a discriminatory act that influenced the ultimate employment decision.
3. Claim Preclusion
Czarniecki v. City of Chicago, 633 F.3d 545, 111 Fair Empl.Prac.Cas. (BNA) 490 (7th
Cir. 2011), affirmed the dismissal, as barred by res judicata, of plaintiffs Title VII national
origin discrimination suit against the City of Chicago for dismissing him from the Police
Academy because of his national origin. The court described plaintiffs allegations at p. *1:
In September 2007, Wojciech Czarniecki brought a lawsuit under 42 U.S.C.
1983 against the City of Chicago and Tobias. The complaint alleged that Tobias
terminated Czarnieckis employment based on national origin discrimination that violated
the equal protection clause of the Fourteenth Amendment. For purposes of this appeal,
we will treat Czarniecki's allegations as true. Tobias allegedly called Czarniecki into his
office to discuss Czarniecki's use of exam study guides, and then asked him a series of
questions about where he was born (Poland), where his parents were born (Poland), and
what language he spoke at home (Polish). Tobias then allegedly said to Czarniecki: We
don't need people like you. When Czarniecki asked Tobias what his Polish heritage had
to do with the exam study guides, Tobias told Czarniecki you have no rights and said
that he could fire Czarniecki for anything. Shortly thereafter, Czarniecki was
dismissed from the Police Academy.
The district court granted summary judgment in favor of the City, but denied qualified immunity
to Tobias in light of the alleged remarks. Plaintiff ultimately dismissed Tobias without
prejudice, after the district court ruled out relief that only the City could give, such as
reinstatement. Czarniecki filed his second federal action in May 2009, alleging that the City
intentionally discriminated against him in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. 2000e et seq., based on his national origin. Under the district court's supplemental
jurisdiction, 28 U.S.C. 1367(a), Czarniecki also alleged state-law claims of intentional
infliction of emotional distress, negligent infliction of emotional distress, and negligent
supervision. Id. at p. *2. The court described the elements of claim preclusion, also known as
res judicata: Claim preclusion under federal law has three ingredients: a final decision in the
first suit; a dispute arising from the same transaction (identified by its operative facts'); and the
same litigants (directly or through privity of interest). Id. at p. *3. The court held that claim
preclusion can sometimes arise from even a dismissal without prejudice, where plaintiff
abandons the claim. It stated: As the appellees indicate, we have repeatedly found that even if a
court dismisses claims without prejudice, we assess finality by whether the district court has
finished with the case. . . . There is no question that the district court's grant of summary
judgment to the City has given rise to a final judgment in favor of the City. Id. The court
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continued with the second element: Second, the old and new cases involved the same parties. In
both the 1983 case and the Title VII case, Czarniecki sued the City of Chicago. The fact that
the second lawsuit does not include Tobias as a defendant does not affect the analysis. Id. at p.
*4. The court held that slight differences in the facts needed to prove liability, or differences in
legal theories, did not bar claim preclusion:
Third, the dispute at the core of the Title VII claim arises from the same
transaction or the same core of operative facts as the dispute at issue in the 1983
claim. Czarniecki's allegations in the Title VII lawsuit are essentially the same allegations
against the City of Chicago in his 1983 lawsuit: that the City of Chicago dismissed him
as a probationary police officer on the basis of national origin discrimination. Czarniecki
further alleges that the discrimination he experienced is part of a pattern of discrimination
and harassment at the Police Academy. As the district court concluded, the only
differences between the first lawsuit and the second lawsuit are the theories of liability
and the fact that the second complaint adds state-law claims for emotional distress.
We reject Czarniecki's argument that because the operative facts needed to prove
a Title VII claim and a 1983 claim are a little different, there is no claim preclusion.
That approach would thoroughly undermine claim preclusion and would allow endless
litigation as long as a lawyer could identify a slightly different cause of action with one
element different from those in the first, second, or third lawsuits between the same
parties arising from the same events. We have consistently explained: Two claims are
one for the purposes of res judicata if they are based on the same, or nearly the same,
factual allegations. . . . Title VII claims are not immune from res judicata, as the plaintiff
seems to suggest. . . . Because both of Czarniecki's federal claims and his new state-law
claims are based on the same set of factual allegations as his 1983 claim, res judicata
bars Czarniecki's Title VII claim and his state-law claims.
Id. at p. 4 (citations omitted). The court rejected plaintiffs argument that claim preclusion
should be barred because he was unable to obtain a Notice of Right to Sue from the EEOC
before the expiration of the two-year period of limitations for filing his 1983 claim: Plaintiffs
in the same situation as Czarnieckiseeking relief under 1983 and Title VII or other federal
employment discrimination statutes for the same adverse employment actionroutinely ask
district courts to stay the first lawsuit until they obtain a right-to-sue letter. Id. at p. *5. Finally,
the court held that plaintiffs State-law causes of action were also barred by claim preclusion
because they arose from the same set of operative facts.
4. Preemption
Lewis v. Whirlpool Corp., 630 F.3d 484, 189 L.R.R.M. (BNA) 3185 (6th Cir. 2011), said
it all in the first sentence: Plaintiff-appellant Timothy Lewis brought a wrongful-termination
claim against defendant-appellee Whirlpool Corporation alleging that he was terminated in
violation of Ohio public policy for his refusal to discharge employees for unionizing activities.
The court held that plaintiffs claim was preempted by the National labor Relations Act, and that
plaintiffs remedy was to file an unfair labor practice charge with the NLRB. The court held that
plaintiffs status as a supervisor did not block preemption under San Diego Building Trades
Council v. Garmon, 359 U.S. 236 (1959). It stated: Lewis asserts that his wrongful-termination
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claim is not arguably subject to the strictures of the NLRA because, as a former supervisor, he
is not an employee covered by the Act. The parties neither dispute that Lewis was a
supervisor, as the term is defined by the Act, nor that the NLRA does not generally protect
supervisors from unfair labor practices. However, a supervisor does have a viable claim under
the NLRA when terminated or otherwise disciplined for refusing to commit unfair labor
practices. Id. at 487-88 (footnotes and citations omitted).
D. Pleading
Skinner v. Switzer, __ U.S. __, 131 S.Ct. 1289, 1296 (2011), reversed the dismissal of a
prisoners Complaint that he had been denied access to potentially exculpatory DNA analysis.
Without even mentioning Iqbal and Twombly, the Court held that the Complaint met the
Swierkewicz standard:
Because this case was resolved on a motion to dismiss for failure to state a claim,
the question below was not whether [Skinner] will ultimately prevail on his procedural
due process claim, see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d
90 (1974), but whether his complaint was sufficient to cross the federal court's threshold,
see Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1
(2002). Skinner's complaint is not a model of the careful drafter's art, but under the
Federal Rules of Civil Procedure, a complaint need not pin plaintiff's claim for relief to a
precise legal theory. Rule 8(a)(2) of the Federal Rules of Civil Procedure generally
requires only a plausible short and plain statement of the plaintiff's claim, not an
exposition of his legal argument. See 5 C. WRIGHT & A. MILLER, FEDERAL PRACTICE &
PROCEDURE 1219, pp. 277278 (3d ed. 2004 and Supp. 2010).
Matrixx Initiatives, Inc. v. Siracusano, __ U.S. __, 131 S.Ct. 1309, 1323 (2011), reversed
the dismissal of a securities fraud action. Writing for a unanimous Court, Justice Sotomayor
stated:
We believe that these allegations suffice to raise a reasonable expectation that
discovery will reveal evidence satisfying the materiality requirement, Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and to allo[w]
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged, Iqbal, 556 U.S., at , 129 S.Ct., at 1949. The information provided to
Matrixx by medical experts revealed a plausible causal relationship between Zicam Cold
Remedy and anosmia. Consumers likely would have viewed the risk associated with
Zicam (possible loss of smell) as substantially outweighing the benefit of using the
product (alleviating cold symptoms), particularly in light of the existence of many
alternative products on the market. Importantly, Zicam Cold Remedy allegedly
accounted for 70 percent of Matrixx's sales. Viewing the allegations of the complaint as
a whole, the complaint alleges facts suggesting a significant risk to the commercial
viability of Matrixx's leading product.
Bonds v. Leavitt, 629 F.3d 369, 385-86, 111 Fair Empl.Prac.Cas. (BNA) 171, 31 IER
Cases 1078 (4th Cir. 2011), affirmed the lower courts dismissal of plaintiffs Title VII hostile-
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environment claim. The court held that plaintiffs allegations were insufficient to allege a hostile
working environment, or that any harassment plaintiff suffered was related to her gender.
Swanson v. Citibank, N.A., 614 F.3d 400 (7th Cir. 2010), reversed the dismissal of the
pro se plaintiffs claims under the Fair Housing Act, although the dismissal of other claims was
affirmed. Construing Iqbal and Twombly, the court placed substantial weight on Erickson v.
Pardus, 551 U.S. 89 (2007). The court suggested at 404 that not much had changed. Referring
to traditional standards, it stated:
Nothing in the recent trio of cases has undermined these broad principles. As
Erickson underscored, [s]pecific facts are not necessary. 551 U.S. at 93, 127 S.Ct.
2197. The Court was not engaged in a sub rosa campaign to reinstate the old fact-
pleading system called for by the Field Code or even more modern codes. We know that
because it said so in Erickson: the statement need only give the defendant fair notice of
what the ... claim is and the grounds upon which it rests. Id. Instead, the Court has
called for more careful attention to be given to several key questions: what, exactly, does
it take to give the opposing party fair notice; how much detail realistically can be
given, and should be given, about the nature and basis or grounds of the claim; and in
what way is the pleader expected to signal the type of litigation that is being put before
the court?
It continued: As we understand it, the Court is saying instead that the plaintiff must give enough
details about the subject-matter of the case to present a story that holds together. In other words,
the court will ask itself could these things have happened, not did they happen. Id. The court
concluded: Swanson's complaint identifies the type of discrimination that she thinks occurs
(racial), by whom (Citibank, through Skertich, the manager, and the outside appraisers it used),
and when (in connection with her effort in early 2009 to obtain a home-equity loan). This is all
that she needed to put in the complaint. Id. at 405. Judge Posner dissented in part. Id. at 407-
12.
Estate of Davis v. Wells Fargo Bank, 633 F.3d 529 (7th Cir. 2011), affirmed the
dismissal of plaintiffs claims under the Equal Credit Opportunity Act and stated at p. *2: To
withstand a Rule 12(b)(6) challenge after Iqbal and Twombly, the plaintiff must give enough
details about the subject-matter of the case to present a story that holds together, and the
question the court should ask is could these things have happened, not did they happen.
Starr v. Baca, 633 F.3d 1191, 2011 WL 477094, 78 Fed.R.Serv.3d 1060 (9th Cir. 2011),
reversed the district courts dismissal of the plaintiff inmates 1983 supervisory liability claim
for deliberate indifference to his health. The court discussed what it described as the
perplexing differences in pleading standards in five recent Supreme Court cases and suggested
a rule of decision:
The juxtaposition of Swierkiewicz and Erickson, on the one hand, and Dura,
Twombly, and Iqbal, on the other, is perplexing. Even though the Court stated in all five
cases that it was applying Rule 8(a), it is hard to avoid the conclusion that, in fact, the
Court applied a higher pleading standard in Dura, Twombly and Iqbal. The Court in
Dura and Twombly appeared concerned that in some complex commercial cases the usual
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lenient pleading standard under Rule 8(a) gave too much settlement leverage to plaintiffs.
That is, if a non-specific complaint was enough to survive a motion to dismiss, plaintiffs
would be able to extract undeservedly high settlements from deep-pocket companies. In
Iqbal, by contrast, the Court was concerned that the usual lenient standard under Rule
8(a) would provide too little protection for high-level executive branch officials who
allegedly engaged in misconduct in the aftermath of September 11, 2001. To the extent
that we perceive a difference in the application of Rule 8(a) in the two groups of cases, it
is difficult to know in cases that come before us whether we should apply the more
lenient or the more demanding standard.
But whatever the difference between these cases, we can at least state the
following two principles common to all of them. First, allegations in a complaint or
counterclaim must be sufficiently detailed to give fair notice to the opposing party of the
nature of the claim so that the party may effectively defend against it. Second, the
allegations must be sufficiently plausible that it is not unfair to require the opposing party
to be subjected to the expense of discovery.
Id. at 1204. Judge Trott dissented. Id. at 1205-10.
E. Summary Judgment
Hoyle v. Freightliner, LLC, __ F.3d __, 2011 WL 1206658, 111 Fair Empl.Prac.Cas.
(BNA) 1537 (4th Cir. April 1, 2011) (No. 09-2024), reversed the grant of summary judgment to
the sexual harassment defendant, and affirmed the grant of summary judgment on other claims.
The court stated at p. *9:
On appeal, Freightliner pursues a similar approach and undertakes to defend the
district court's summary judgment on the issue of severity/pervasiveness by cataloging
some of the myriad cases that have come before this court and that involved behavior
considerably more offensive and opprobrious than that shown here. While this tack is
understandable, and assuming that other cases involve more heinous behavior in male
dominated workplaces than that shown here, we have never held that a weak case is
necessarily one that should be disposed of on summary judgment. The question at the
summary judgment stage is not whether a jury is sure to find a verdict for the plaintiff;
the question is whether a reasonable jury could rationally so find. . . . On this record, we
are satisfied that the answer to that query is yes and that it was error for the district
court to rule to the contrary as a matter of law. We have never held that a grant of
summary judgment in favor of a defendant is a legitimate substitute for a jury verdict in
favor of a defendant, and we decline to do so here.
(Emphases supplied.)
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F. Class Actions and Collective Actions
Wal-Mart Stores, Inc. v. Dukes, No. 10-277 (Supreme Court). The Ninth Circuits
decision was reported at 603 F.3d 571 (9th Cir. 2010). The Courts December 6, 2010 grant of
certiorari stated that the grant was:
LIMITED TO QUESTION I PRESENTED BY THE PETITION. IN ADDITION TO
QUESTION I, THE PARTIES ARE DIRECTED TO BRIEF AND ARGUE THE
FOLLOWING QUESTION: "WHETHER THE CLASS CERTIFICATION ORDERED
UNDER RULE 23(b)(2) WAS CONSISTENT WITH RULE 23(a)."
The petition for certiorari set forth the following two questions:
I. Whether claims for monetary relief can be certified under Federal Rule of Civil
Procedure 23(b)(2)which by its terms is limited to injunctive or corresponding
declaratory reliefand, if so, under what circumstances.
II. Whether the certification order conforms to the requirements of Title VII, the
Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule
of Civil Procedure 23.
The Court may have foreshadowed at least part of its decision in Dukes when it stated in AT&T
Mobility LLC v. Concepcion, __ U.S. __, __ S.Ct. __, 2011 WL 1561956 (U.S., April 27, 2011),
at p. *11: For a class-action money judgment to bind absentees in litigation, class
representatives must at all times adequately represent absent class members, and absent members
must be afforded notice, an opportunity to be heard, and a right to opt out of the class.
Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., __ U.S. __, 130 S. Ct. 1431
(2010), held that New Yorks statutory limit on class actionsthat they cannot be maintained for
suits seeking penalties or statutory minimum damagesis preempted in a diversity case in
Federal court. The decision means that the New York Labor Law provision allowing for 25%
liquidated damageswhich has not been enforced in most class actions in State or Federal court
for several decadescan now be enforced. The judicial line-up is extraordinary: SCALIA, J.,
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts
I and II-A, in which ROBERTS, C.J., and STEVENS, THOMAS, and SOTO-MAYOR, JJ.,
joined, an opinion with respect to Parts II-B and II-D, in which ROBERTS, C.J., and THOMAS,
and SOTOMAYOR, JJ., joined, and an opinion with respect to Part II-C, in which ROBERTS,
C.J., and, THOMAS, J., joined. STEVENS, J., filed an opinion concurring in part and concurring
in the judgment. GINSBURG, J., filed a dissenting opinion, in which KENNEDY, BREYER,
and ALITO, JJ., joined.
Acevedo v. Allsup's Convenience Stores Inc., 600 F.3d 516, 15 WH Cases 2d 1801 (5th
Cir. 2010), held that the lower court did not abuse its discretion in denying mass joinder of the
former members of an FLSA collective action after the de-certification of the collective action.
The court held that circumstances differed at different stores, and that employees at any one store
could join together in the same action. However, about a thousand employees at three hundred
stores were too many to join.
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Ervin v. OS Restaurant Services, Inc., 632 F.3d 971, 973-74, 17 Wage & Hour Cas.2d
(BNA) 97 (7th Cir. 2011), reversed the denial of Rule 23 class certification for an Illinois-law
class where an FLSA collective action was also sought. The court stated at p. *1:
We conclude that there is no categorical rule against certifying a Rule 23(b)(3)
state-law class action in a proceeding that also includes a collective action brought under
the FLSA. (We refer to these as combined actions, rather than hybrid actions, to
avoid confusion with other uses of the term hybride.g., for cases certified under more
than one subsection of Rule 23(b).) In combined actions, the question whether a class
should be certified under Rule 23(b)(3) will turnas it always doeson the application
of the criteria set forth in the rule; there is no insurmountable tension between the FLSA
and Rule 23(b)(3). Nothing in the text of the FLSA or the procedures established by the
statute suggests either that the FLSA was intended generally to oust other ordinary
procedures used in federal court or that class actions in particular could not be combined
with an FLSA proceeding. We reverse the district court's class-certification
determination and remand for further consideration in accordance with this opinion.
The court held that there was no difference between cases filed originally in federal court and
those removed from State court. There is no reason for any such distinction, however. An
original filing and a proper removal are each appropriate ways to reach federal court. Once a suit
is removed from state court to federal court, it is governed by the federal court's procedures . . .
there is no exclusion for Rule 23 or for any other rule. If there is a problem with combined
actions, as the district court suggested, then the problem exists for all cases within the federal
court's jurisdiction. Id. at p. *4 (citation omitted). The court stated: There is ample evidence
that a combined action is consistent with the regime Congress has established in the FLSA. Id.
at p. *5. It rejected defendants objection that the notice would be confusing, and held that the
problem was not intractable:
It does not seem like too much to require potential participants to make two
binary choices: (1) decide whether to opt in and participate in the federal action; (2)
decide whether to opt out and not participate in the state-law claims. Other courts in this
circuit appear to have had little trouble working out an adequate notice in this type of
case. . . . When we asked at oral argument whether Outback's lawyers could provide any
concrete examples of confusion resulting from this type of notification, they were unable
to point to a single instance. Finally, if these actions were to proceed separatelythe
FLSA in federal court and the state-law class action in state courtan entirely different
and potentially worse problem of confusion would arise, with uncoordinated notices from
separate courts peppering the employees. As a general rule, it will usually be preferable
if the notice comes from a single court, in a unified proceeding, where the court and
lawyers alike are paying close attention to the overall message the participants will
receive.
Id., at p. *6 (citations omitted; emphasis in original). Turning to supplemental jurisdiction under
28 U.S.C. 1367(a), the court stated that it is important to emphasize that the FLSA is not a
statute that expressly provide[s] some limit to supplemental jurisdiction, as section 1367(a)
contemplates that some federal statutes might. . . . For the reasons we have already given, the
opt-in procedures in the FLSA do not operate to limitexpressly or impliedlya district court's
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supplemental jurisdiction to only those state-law claims that also involve opt-in procedures. Id.
at p. *7. The court held that there were no reasons to decline supplemental jurisdiction in this
case. Because the State-law claims closely tracked the Federal claims, there were no novel or
complex issues of Federal law. Id. at p. *8. The court continued:
That leaves subsection (c)(2), which permits a court to decline supplemental
jurisdiction if the state-law claims substantially predominate over the federal action.
The district court concluded that the difference in size between the larger state-law class
and the smaller FLSA collective action made a difference in the supplemental jurisdiction
analysis. If all it meant by this was that the need to include additional parties was
disfavored, then its decision was in conflict with the statute. Section 1367(a) expressly
states that [s]uch supplemental jurisdiction shall include claims that involve the joinder
or intervention of additional parties. 28 U.S.C. 1367(a). Inclusion of additional
litigants as unnamed members of a class is of no more jurisdictional significance than
joinder or intervention, and so we understand that final sentence as one that covers class
actions as well.
Id. The court distinguished De Asencio v. Tyson Foods, Inc., 342 F.3d 301 (3d Cir. 2003),
without addressing its core holding on predominance, by finding that it was fact-based:
It is true that the Third Circuit concluded in De Asencio that the number of state
law plaintiffs might-and did in the case before it-so far outnumber those engaged in the
FLSA collective action that the federal action [was] an appendage to the more
comprehensive state action. 342 F.3d at 312. That was part of the reason that it held that
supplemental jurisdiction should not have been exercised in that case. Without taking a
position on whether a state-law class might ever so dwarf a federal FLSA action that
supplemental jurisdiction becomes too thin a reed on which to ferry the state claims into
federal court, we can say conclusively that in the present case the disparity between the
number of FLSA plaintiffs and the number of state-law plaintiffs is not enough to affect the
supplemental jurisdiction analysis. In the majority of cases, it would undermine the
efficiency rationale of supplemental jurisdiction if two separate forums were required to
adjudicate precisely the same issues because there was a different number of plaintiffs
participating in each claim. . . . In this case, there are approximately 30 participants in the
FLSA collective action and potentially 180 to 250 people who might participate in any of the
three Rule 23 classes. Although that is a greater disparity than the D.C. Circuit considered in
Lindsay, where there were 228 people in the state-law class and 204 proceeding under the
FLSA, see 448 F.3d 425 n. 12, the overall numbers are still low. Our case is quite unlike De
Asencio, where the Third Circuit was confronted with an FLSA collective action involving
447 people and a 23(b)(3) class of 4,100 plaintiffs. See 342 F.3d at 305.
We agree with the D.C. Circuit in Lindsay and the Ninth Circuit in Wang that the
Third Circuit decision in De Asencio represents only a fact-specific application of well-
established rules, not a rigid rule about the use of supplemental jurisdiction in cases
combining an FLSA count with a state-law class action. In our case, the record reflects no
reason to doubt that it is sensible to litigate all theories in a single federal proceeding. The
identity of the issues, the convenience to both plaintiffs and defendants of not having to
litigate in multiple forums, and the economy of resolving all claims at once suggests that an
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exercise of supplemental jurisdiction will normally be appropriate. In all but the most
unusual cases, there will be little cause for concern about fairness or comity.
Id. at p. *9 (citation omitted).
F. Arbitration
AT&T Mobility LLC v. Concepcion, __ U.S. __, __ S.Ct. __, 2011 WL 1561956 (U.S.,
April 27, 2011), upheld a consumer arbitration agreement that included a ban on class
arbitrations. The Ninth Circuit, applying California law, had held the provision unconscionable.
The Supreme Court reversed in a 5-4 decision written by Justice Scalia. The details of the
question before the Court are important in determining its effect. The Court began by stating:
We consider whether the FAA prohibits States from conditioning the enforceability of certain
arbitration agreements on the availability of classwide arbitration procedures. It ended by
holding that the process of arbitration was unsuited for the resolution of class claims. The
arbitration agreement, as unilaterally revised by AT&T, required that claims be brought in the
parties' ndividual capacity, and not as a plaintiff or class member in any purported class or
representative proceeding. Id. at p. 3*. It also barred the arbitrator from consolidating more
than one persons claims, and barred the arbitrator from presiding over any form of a
representative or class proceeding. Id. at p. 3, n.2. The process of arbitration, and the rights
accorded to claimants against AT&T in arbitration, were unusual:
The revised agreement provides that customers may initiate dispute proceedings
by completing a one-page Notice of Dispute form available on AT & T's Web site. AT &
T may then offer to settle the claim; if it does not, or if the dispute is not resolved within
30 days, the customer may invoke arbitration by filing a separate Demand for Arbitration,
also available on AT & T's Web site. In the event the parties proceed to arbitration, the
agreement specifies that AT & T must pay all costs for nonfrivolous claims; that
arbitration must take place in the county in which the customer is billed; that, for claims
of $10,000 or less, the customer may choose whether the arbitration proceeds in person,
by telephone, or based only on submissions; that either party may bring a claim in small
claims court in lieu of arbitration; and that the arbitrator may award any form of
individual relief, including injunctions and presumably punitive damages. The
agreement, moreover, denies AT & T any ability to seek reimbursement of its attorney's
fees, and, in the event that a customer receives an arbitration award greater than AT & T's
last written settlement offer, requires AT & T to pay a $7,500 minimum recovery and
twice the amount of the claimant's attorney's fees.
FN3


FN3. The guaranteed minimum recovery was increased in 2009 to $10,000. . . .
The Courts description of the district courts approach at p. *3 is also important:
In March 2008, AT & T moved to compel arbitration under the terms of its
contract with the Concepcions. The Concepcions opposed the motion, contending that
the arbitration agreement was unconscionable and unlawfully exculpatory under
California law because it disallowed classwide procedures. The District Court denied AT
& T's motion. It described AT & T's arbitration agreement favorably, noting, for
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example, that the informal dispute-resolution process was quick, easy to use and likely
to promp[t] full or ... even excess payment to the customer without the need to arbitrate
or litigate; that the $7,500 premium functioned as a substantial inducement for the
consumer to pursue the claim in arbitration if a dispute was not resolved informally; and
that consumers who were members of a class would likely be worse off. . . .
Nevertheless, relying on the California Supreme Court's decision in Discover Bank v.
Superior Court, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100 (2005), the court found
that the arbitration provision was unconscionable because AT & T had not shown that
bilateral arbitration adequately substituted for the deterrent effects of class actions. . . .
The Court rejected respondents argument that the California law barring exculpatory provisions
and holding class action waivers unconscionable applied to litigation as well as arbitration, and
could thus be reconciled with the FAA. It stated at pp. *6 and *7:
When state law prohibits outright the arbitration of a particular type of claim, the
analysis is straightforward: The conflicting rule is displaced by the FAA. Preston v.
Ferrer, 552 U.S. 346, 353, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008). But the inquiry
becomes more complex when a doctrine normally thought to be generally applicable,
such as duress or, as relevant here, unconscionability, is alleged to have been applied in a
fashion that disfavors arbitration. In Perry v. Thomas, 482 U.S. 483, 107 S.Ct. 2520, 96
L.Ed.2d 426 (1987), for example, we noted that the FAA's preemptive effect might
extend even to grounds traditionally thought to exist at law or in equity for the
revocation of any contract. Id., at 492, n. 9, 107 S.Ct. 2520 (emphasis deleted). We
said that a court may not rely on the uniqueness of an agreement to arbitrate as a basis
for a state-law holding that enforcement would be unconscionable, for this would enable
the court to effect what ... the state legislature cannot. Id., at 493, n. 9, 107 S.Ct. 2520.
An obvious illustration of this point would be a case finding unconscionable or
unenforceable as against public policy consumer arbitration agreements that fail to
provide for judicially monitored discovery. The rationalizations for such a holding are
neither difficult to imagine nor different in kind from those articulated in Discover Bank.
A court might reason that no consumer would knowingly waive his right to full
discovery, as this would enable companies to hide their wrongdoing. Or the court might
simply say that such agreements are exculpatoryrestricting discovery would be of
greater benefit to the company than the consumer, since the former is more likely to be
sued than to sue. See Discover Bank, supra, at 161, 30 Cal.Rptr.3d 76, 113 P.3d, at 1109
(arguing that class waivers are similarly one-sided). And, the reasoning would continue,
because such a rule applies the general principle of unconscionability or public-policy
disapproval of exculpatory agreements, it is applicable to any contract and thus
preserved by 2 of the FAA. In practice, of course, the rule would have a
disproportionate impact on arbitration agreements; but it would presumably apply to
contracts purporting to restrict discovery in litigation as well.
Other examples are easy to imagine. The same argument might apply to a rule
classifying as unconscionable arbitration agreements that fail to abide by the Federal
Rules of Evidence, or that disallow an ultimate disposition by a jury (perhaps termed a
panel of twelve lay arbitrators to help avoid preemption). Such examples are not
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fanciful, since the judicial hostility towards arbitration that prompted the FAA had
manifested itself in a great variety of devices and formulas declaring arbitration
against public policy. Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402,
406 (C.A.2 1959). And although these statistics are not definitive, it is worth noting that
California's courts have been more likely to hold contracts to arbitrate unconscionable
than other contracts. Broome, An Unconscionable Applicable of the Unconscionability
Doctrine: How the California Courts are Circumventing the Federal Arbitration Act, 3
Hastings Bus. L.J. 39, 54, 66 (2006); Randall, Judicial Attitudes Toward Arbitration and
the Resurgence of Unconscionability, 52 Buffalo L.Rev. 185, 186187 (2004).
The Court described at p. *7 a concession by respondents:

Rules aimed at destroying arbitration or demanding procedures incompatible with
arbitration, they concede, would be preempted by the FAA because they cannot
sensibly be reconciled with Section 2. Brief for Respondents 32. The grounds
available under 2's saving clause, they admit, should not be construed to include a
State's mere preference for procedures that are incompatible with arbitration and would
wholly eviscerate arbitration agreements. . . .

The majority stated:

We largely agree. Although 2's saving clause preserves generally applicable
contract defenses, nothing in it suggests an intent to preserve state-law rules that stand as
an obstacle to the accomplishment of the FAA's objectives. . . . As we have said, a federal
statute's saving clause cannot in reason be construed as [allowing] a common law right,
the continued existence of which would be absolutely inconsistent with the provisions of
the act. In other words, the act cannot be held to destroy itself. . . .

Id. However, the Court held that the requirement of class proceedings was just such an element
incompatible with arbitration: The overarching purpose of the FAA, evident in the text of 2,
3, and 4, is to ensure the enforcement of arbitration agreements according to their terms so as to
facilitate streamlined proceedings. Requiring the availability of classwide arbitration interferes
with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.
Id. at p. 8. The Court made clear that classwide arbitration was available by consent, but that
requiring it under Discover Bank was incompatible with arbitration and the FAA.
Classwide arbitration includes absent parties, necessitating additional and different
procedures and involving higher stakes. Confidentiality becomes more difficult. And
while it is theoretically possible to select an arbitrator with some expertise relevant to the
class-certification question, arbitrators are not generally knowledgeable in the often-
dominant procedural aspects of certification, such as the protection of absent parties. The
conclusion follows that class arbitration, to the extent it is manufactured by Discover
Bank rather than consensual, is inconsistent with the FAA.
Id. at p. *9. The Court held that the a main advantage of arbitration is informality, and that class
arbitration requires formality. For a class-action money judgment to bind absentees in
litigation, class representatives must at all times adequately represent absent class members, and
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absent members must be afforded notice, an opportunity to be heard, and a right to opt out of the
class. Id. at p. *11. It then accepted the common argument of defendants that the stakes in
class litigation are so high that defendants are compelled to settle. The Court then turned a
logical cartwheel, turned its back on the use of arbitration to resolve large commercial disputes
and its past reliance on that practice to impose arbitration in the employment context, and stated
that class arbitration is unsuitable because arbitration is generally for small amounts:
Third, class arbitration greatly increases risks to defendants. Informal procedures
do of course have a cost: The absence of multilayered review makes it more likely that
errors will go uncorrected. Defendants are willing to accept the costs of these errors in
arbitration, since their impact is limited to the size of individual disputes, and presumably
outweighed by savings from avoiding the courts. But when damages allegedly owed to
tens of thousands of potential claimants are aggregated and decided at once, the risk of an
error will often become unacceptable. Faced with even a small chance of a devastating
loss, defendants will be pressured into settling questionable claims. Other courts have
noted the risk of in terrorem settlements that class actions entail . . . and class
arbitration would be no different.

Arbitration is poorly suited to the higher stakes of class litigation. In litigation, a
defendant may appeal a certification decision on an interlocutory basis and, if
unsuccessful, may appeal from a final judgment as well. Questions of law are reviewed
de novo and questions of fact for clear error. In contrast, 9 U.S.C. 10 allows a court to
vacate an arbitral award only where the award was procured by corruption, fraud, or
undue means; there was evident partiality or corruption in the arbitrators; the
arbitrators were guilty of misconduct in refusing to postpone the hearing ... or in refusing
to hear evidence pertinent and material to the controversy[,] or of any other misbehavior
by which the rights of any party have been prejudiced; or if the arbitrators exceeded
their powers, or so imperfectly executed them that a mutual, final, and definite award ...
was not made. The AAA rules do authorize judicial review of certification decisions, but
this review is unlikely to have much effect given these limitations; review under 10
focuses on misconduct rather than mistake. And parties may not contractually expand the
grounds or nature of judicial review . . . . We find it hard to believe that defendants would
bet the company with no effective means of review, and even harder to believe that
Congress would have intended to allow state courts to force such a decision.
FN8


FN8. The dissent cites three large arbitration awards (none of which stems from
classwide arbitration) as evidence that parties are willing to submit large claims before an
arbitrator. Post, at 78. Those examples might be in point if it could be established that
the size of the arbitral dispute was predictable when the arbitration agreement was
entered. Otherwise, all the cases prove is that arbitrators can give huge awardswhich
we have never doubted. The point is that in class-action arbitration huge awards (with
limited judicial review) will be entirely predictable, thus rendering arbitration
unattractive. It is not reasonably deniable that requiring consumer disputes to be
arbitrated on a classwide basis will have a substantial deterrent effect on incentives to
arbitrate.
Finally, the Court addressed the argument that only class treatment would result in relief to
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persons with small claims:
The dissent claims that class proceedings are necessary to prosecute small-dollar
claims that might otherwise slip through the legal system. See post, at 9. But States
cannot require a procedure that is inconsistent with the FAA, even if it is desirable for
unrelated reasons. Moreover, the claim here was most unlikely to go unresolved. As
noted earlier, the arbitration agreement provides that AT & T will pay claimants a
minimum of $7,500 and twice their attorney's fees if they obtain an arbitration award
greater than AT & T's last settlement offer. The District Court found this scheme
sufficient to provide incentive for the individual prosecution of meritorious claims that
are not immediately settled, and the Ninth Circuit admitted that aggrieved customers who
filed claims would be essentially guarantee[d] to be made whole, 584 F.3d, at 856, n. 9.
Indeed, the District Court concluded that the Concepcions were better off under their
arbitration agreement with AT & T than they would have been as participants in a class
action, which could take months, if not years, and which may merely yield an
opportunity to submit a claim for recovery of a small percentage of a few dollars. . . . .
Id. at p. *13 (emphasis in original). Justice Thomas joined the majority opinion and also wrote a
concurring opinion. Justice Breyer filed a dissenting opinion, joined by Justices Ginsberg,
Sotomayor, and Kagan.
Comment on AT&T Concepcion v. Mobility: This is not a workmanlike product. The
Courts reasoning ignores the history, purpose, and application of the Federal Arbitration Act,
and pulls out of thin airand contrary to realitythe proposition on which it actually decided the
case: that arbitration is only for small claims. However, it seems to me that the Courts
approach will turn out to be self-limiting.
I do not think that this result will affect EEO class litigation seeking systemic injunctive
relief where there are arbitration agreements with class action bans. The Court has permitted
arbitration agreements to be enforced only where they do not interfere with the substantive
rights of litigants, and one of the most important substantive rights in systemic EEO class
litigation is an injunctive decree changing the employers personnel practices for the future.
Such decrees can be obtained only in class actions, because individuals suing as individuals do
not have the standing necessary to obtain broad injunctive decrees that will not benefit them
personally. Thus, enforcement of a class action waiver would effectively immunize the
employer from one of the most important aspects of relief and repeal the injunctive provisions of
the EEO laws. Since this cannot be done, the arbitration agreement must either fall so that the
class claims can be heard in court, or the class claims must be heard in arbitration. There is no
room for AT&T Mobility in EEO class litigation seeking systemic injunctive relief.
Nor do I think that AT&T Mobility will have any effect in the normal consumer case.
AT&Ts plan made its customers individually better off in ADR and arbitration than they would
have been if they litigated the case in court and obtained all the relief allowable. That is
extraordinarily rare. The Court emphasized this better off feature both at the beginning and at
the end of its decision. In the 99.99% of all consumer cases where there are no such elements,
and where application of AT&T Mobility would in effect preclude the ability to obtain even
individual relief because the damages are small, the Fifth Amendment stands as a bar to class
action waivers. The Court had no occasion to consider the practical denial of due process, or
the status of AT&T as using state action under the FAA to deprive customers of property
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interests without due process of law, because such a question cannot arise where the
agreement leaves individuals with an incentive to proceed and a means of paying counsel. The
question does arise in the more typical consumer situation.
Rent-a-Center West v. Jackson, __ U.S. __, 130 S. Ct. 2772, 109 Fair Empl.Prac.Cas.
(BNA) 897 (2010), a 1981 case, involved an arbitration agreement that delegated to the
arbitrator any question of the validity of the arbitration agreement. The Court stated: The
Agreement provided for arbitration of all past, present or future disputes arising out of
Jackson's employment with Rent-A-Center, including claims for discrimination and claims for
violation of any federal ... law. . . . It also provided that [t]he Arbitrator, and not any federal,
state, or local court or agency, shall have exclusive authority to resolve any dispute relating to
the interpretation, applicability, enforceability or formation of this Agreement including, but not
limited to any claim that all or any part of this Agreement is void or voidable. Id. at 2775.
Plaintiff challenged the agreement as unconscionable under Nevada law because of the
requirement that he pay half the fees. The Court held that the agreement met the heightened
standard of clear and unmistakable evidence that the parties intended to delegate to the arbitrator
the issue of arbitrability, but that the heightened showing did not mean that the party seeking to
enforce arbitration had to show by clear and unmistakable evidence that the agreement was not
unconscionable. Id. at 2778 n.1. The Court held that the agreement to arbitrate is enforceable
under 2 of the FAA without regard to the enforceability of the underlying contract, and that a
court must therefore determine the enforceability of the agreement to arbitrate even if all other
questions under the agreement are to be resolved by the arbitrator. The Court held that it made
no difference that the agreement to arbitrate here involved the delegation provision as to
arbitrability, and that the remainder of the agreement was the broad arbitration agreement.
Accordingly, unless Jackson challenged the delegation provision specifically, we must treat it as
valid under 2, and must enforce it under 3 and 4, leaving any challenge to the validity of the
Agreement as a whole for the arbitrator. Id. at 2779. Justice Scalia wrote the opinion of the
Court, joined by the Chief Justice and Justices Kennedy, Thomas, and Alito. Justice Stevens
dissented, joined by Justices Ginsburg, Breyer, and Sotomayor.
Stolt-Nielsen S.A. v. AnimalFeeds International Corp., __ U.S. __, 130 S.Ct. 1758, 176
L.Ed.2d 605, (2010), held that an interim arbitration award ordering classwide arbitration must
be vacated under the F.A.A. where the arbitral panel exceeded its powers by failing to base its
decision on New York law or maritime law as to the proper construction of an arbitration
agreement that is silent as to class arbitration, and instead donning the mantle of a common-law
court in deciding what is the best public policy in such situations. The Court stated at 1768-69:
Rather than inquiring whether the FAA, maritime law, or New York law contains
a default rule under which an arbitration clause is construed as allowing class
arbitration in the absence of express consent, the panel proceeded as if it had the authority
of a common-law court to develop what it viewed as the best rule to be applied in such a
situation. Perceiving a post-Bazzle consensus among arbitrators that class arbitration is
beneficial in a wide variety of settings, the panel considered only whether there was
any good reason not to follow that consensus in this case. . . . The panel was not
persuaded by court cases denying consolidation of arbitrations,FN5 by undisputed
evidence that the Vegoilvoy charter party had never been the basis of a class action, or
by expert opinion that sophisticated, multinational commercial parties of the type that
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are sought to be included in the class would never intend that the arbitration clauses
would permit a class arbitration.FN6 . . . Accordingly, finding no convincing ground for
departing from the post-Bazzle arbitral consensus, the panel held that class arbitration
was permitted in this case. . . . The conclusion is inescapable that the panel simply
imposed its own conception of sound policy.FN7
(Footnotes omitted.) The Court held at 1775-76:
From these principles, it follows that a party may not be compelled under the
FAA to submit to class arbitration unless there is a contractual basis for concluding that
the party agreed to do so. In this case, however, the arbitration panel imposed class
arbitration even though the parties concurred that they had reached no agreement on
that issue . . .. The critical point, in the view of the arbitration panel, was that petitioners
did not establish that the parties to the charter agreements intended to preclude class
arbitration. . . . Even though the parties are sophisticated business entities, even though
there is no tradition of class arbitration under maritime law, and even though
AnimalFeeds does not dispute that it is customary for the shipper to choose the charter
party that is used for a particular shipment, the panel regarded the agreement's silence on
the question of class arbitration as dispositive. The panel's conclusion is fundamentally
at war with the foundational FAA principle that arbitration is a matter of consent.
In certain contexts, it is appropriate to presume that parties that enter into an
arbitration agreement implicitly authorize the arbitrator to adopt such procedures as are
necessary to give effect to the parties' agreement. Thus, we have said that procedural
questions which grow out of the dispute and bear on its final disposition are
presumptively not for the judge, but for an arbitrator, to decide. . . . This recognition is
grounded in the background principle that [w]hen the parties to a bargain sufficiently
defined to be a contract have not agreed with respect to a term which is essential to a
determination of their rights and duties, a term which is reasonable in the circumstances
is supplied by the court. Restatement (Second) of Contracts 204 (1979).
An implicit agreement to authorize class-action arbitration, however, is not a term
that the arbitrator may infer solely from the fact of the parties' agreement to arbitrate.
This is so because class-action arbitration changes the nature of arbitration to such a
degree that it cannot be presumed the parties consented to it by simply agreeing to submit
their disputes to an arbitrator. In bilateral arbitration, parties forgo the procedural rigor
and appellate review of the courts in order to realize the benefits of private dispute
resolution: lower costs, greater efficiency and speed, and the ability to choose expert
adjudicators to resolve specialized disputes. . . . But the relative benefits of class-action
arbitration are much less assured, giving reason to doubt the parties' mutual consent to
resolve disputes through class-wide arbitration. . . . Cf. First Options, supra, at 945
(noting that one can understand why courts might hesitate to interpret silence or
ambiguity on the who should decide arbitrability point as giving the arbitrators that
power, for doing so might too often force unwilling parties to arbitrate contrary to their
expectations).
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Justice Alito wrote the majority opinion, joined by the Chief Justice and Justices Scalia,
Kennedy, and Thomas. Justice Ginsburg dissented, joined by Stevens and Breyer. Justice
Sotomayor did not participate.
G. Evidence
1. Authenticity
Schandelmeier-Bartels v. Chicago Park District, 634 F.3d 372, 111 Fair Empl.Prac.Cas.
(BNA) 739, 78 Fed.R.Serv.3d 1023 (7th Cir. 2011), reversed the district courts grant of
judgment as a matter of law, and reinstated the jury verdict on liability for the Caucasian Title
VII racial discrimination plaintiff. The court held that plaintiffs counsel acted improperly
during closing argument by suggesting to the jury that an e-mail in a joint exhibit had been
fabricated by defendant. Plaintiff had made no challenge to its authenticity, and no testimony or
exhibit suggested it had been fabricated. The lower court erroneously overruled defendants
objection to the argument, but the court held that the error did not rise to the level requiring a
new trial. Id. at pp. *11-*12.
2. Other Instances of Discrimination
Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 102 Fair Empl.Prac.Cas.
(BNA) 1057 (2008), reversed and remanded the decision of the Tenth Circuit, and held that the
lower court erred in concluding that a two-line minute entry of the district court meant that the
lower court had adopted a per se rule barring testimony of other instances of discrimination, and
in conducting its own balancing test as to such testimony instead of remanding the case to the
district court. The unanimous Court stated its views on the evidentiary issue succinctly:
The question whether evidence of discrimination by other supervisors is relevant
in an individual ADEA case is fact based and depends on many factors, including how
closely related the evidence is to the plaintiff's circumstances and theory of the case.
Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive,
context-specific inquiry. Because Rules 401 and 403 do not make such evidence per se
admissible or per se inadmissible, and because the inquiry required by those Rules is
within the province of the District Court in the first instance, we vacate the judgment of
the Court of Appeals and remand the case with instructions to have the District Court
clarify the basis for its evidentiary ruling under the applicable Rules.
Id. at 388.
Quigley v. Winter, 598 F.3d 938 (8th Cir. 2010), affirmed the jury verdict under the Fair
Housing Act, and held that the plaintiff tenant had established sexual harassment by the landlord
and thus a hostile housing environment. The court held that the lower court did not abuse its
discretion by admitting the evidence of three other female tenants. The trial court had excluded
the evidence of the fourth tenant as too remote, since the incident in question occurred in 1999.
H. Jury Trial
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Thomas v. iStar Financial, Inc., 629 F.3d 276, 281, 110 Fair Empl.Prac.Cas. (BNA) 1761
(2d Cir. 2010) (per curiam), was a case brought under Title VII and under the New York City
Human Rights Law. Plaintiff lost on his racial discrimination claim at trial, but prevailed on his
retaliation claim. The court rejected defendants argument that the lower court erred by
submitting the back pay claims to the jury:
Finally, while defendants are correct that lost wages under Title VII are equitable and,
therefore, need not be tried by a jury
FN4
. . ., economic damages under the statute may
nevertheless be tried by a jury if both sides consent. . . . Such consent may be express or
implied. . . . Because the defendants cannot point to anywhere in the record where they
objected to the district court submitting the issue of back-pay damages to the jury, they
have constructively consented to the jury trying that issue and have waived any challenge
to it.
________
FN4. Although we have never addressed the issue, defendants may be correct
that federal courts should also treat as equitable damages for violations of pendent state
law claims that are virtually identical to Title VII claims. . . . Because the defendants
consented to a jury trial on this aspect of damages, however, we need not resolve the
issue here.
(Citations omitted.)
I. Jury Instructions
Schandelmeier-Bartels v. Chicago Park District, 634 F.3d 372, 111 Fair Empl.Prac.Cas.
(BNA) 739, 78 Fed.R.Serv.3d 1023 (7th Cir. 2011), reversed the district courts grant of
judgment as a matter of law, and reinstated the jury verdict on liability for the Caucasian Title
VII racial discrimination plaintiff. Plaintiff relied on a cats paw theory under which the bias
of a non-decisionmaker influenced the decisionmaker to terminate plaintiff. The court held that
the standard pattern jury instructionwhether plaintiffs race made a difference to the
outcomewas sufficient, and that there was no need to discuss the intricacies of legal theories:
The statutory language of Title VII and the standard jury instructions in this
circuit weigh against too stringent a standard of proof for the cat's paw theory. Title VII
is written in terms of what the employer is prohibited from doing: it is unlawful for an
employer-(1) to fail or refuse to hire or to discharge any individual ... because of such
individual's race, color, religion, sex, or national origin. 42 U.S.C. 2000e-2(a). The
focus is on the employer entity as a whole, not on individual managers or supervisors,
who are not individually liable for an employer's violations of federal discrimination
statutes. . . . The statute is also written broadly in terms of cause: because of such
individual's race. This circuit's pattern jury instructions in employment discrimination
cases focus on causation. They leave plenty of room for counsel to argue a cat's paw
theory as a question of fact. The district judge gave the appropriate standard instruction
here: To determine that Ms. Schandelmeier-Bartels was terminated because of her race,
you must decide that the Park District would not have terminated Ms. Schandelmeier-
Bartels had she been non-Caucasian but everything else about Ms. Schandelmeier-Bartels
had been the same. See Seventh Circuit Pattern Civil Jury Instructions No. 3.01; . . . . It
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is not necessary to instruct the jury about the intricacies of various doctrines the courts
have developed for digesting summary judgment motions in employment discrimination
cases. The court may and should simply ask the jury the counter-factual question, and the
parties may argue whether, for example, the plaintiff's race made the critical difference,
regardless of which of the employer's agents made or influenced the decision, or exactly
how they did so.
Id. at p. *5. The court also held that defendants objection to the instructionswhich was made
during the middle of deliberations, after the jury had sent a note asking for clarificationwas
untimely.
J. The Jury Verdict
Ortiz v. Jordan, __ U.S. __, 131 S.Ct. 884, 79 USLW 4056 (2011) (Ginsberg, J.),
reversed the Sixth Circuits determination after a full trial that the prison officials who were civil
rights defendants were entitled to the grant of summary judgment on the basis of qualified
immunity. The Court held that no such review was possible after a full trial, and that the
question of qualified immunity had to be addressed in light of the trial record. Id. at 888-89, 891.
Defendants lost at trial, and substantial verdicts were entered against them, but they did not avail
themselves of the usual steps available to those who lose at trial:
The case proceeded to trial, and a jury returned a verdict of $350,000 in
compensatory and punitive damages against Jordan and $275,000 against Bright. Jordan
and Bright sought judgment as a matter of law, pursuant to Rule 50(a), both at the close
of Ortiz's evidence and at the close of their own presentation. But they did not contest the
jury's liability finding by renewing, under Rule 50(b), their request for judgment as a
matter of law. Nor did they request a new trial under Rule 59(a).
Id. at 890-91. The Court held that defendants waived their right to challenge the sufficiency of
the evidence because they did not renew their motion for judgment as a matter of law within 28
days after the entry of judgment. Id. at 892-94. The Court clarified the distinction between a
Rule 50 judgment as a matter of law and a Rule 59 grant of new trial:
A plea that a verdict is against the weight of the evidence, of course, is not equivalent
to a plea that the evidence submitted at trial was insufficient to warrant submission of the
case to the jury. 11 C. WRIGHT, A. MILLER, & E. COOPER, FEDERAL PRACTICE &
PROCEDURE 2806, pp. 65-67 (2d ed.1995 and Supp.2010). A determination that a
verdict is against the weight of the evidence may gain a new trial for the verdict loser, but
never a final judgment in that party's favor.
Id. at 892 n.6. Justice Thomas, joined by Justices Scalia and Kennedy, concurred. Id. at 894-95.
K. Rate of Prejudgment Interest
Thomas v. iStar Financial, Inc., 629 F.3d 276, 279-80, 110 Fair Empl.Prac.Cas. (BNA)
1761 (2d Cir. 2010) (per curiam), was a case brought under Title VII and under the New York
City Human Rights Law. The court rejected plaintiffs argument that prejudgment interest
should have been based on the New York rate of prejudgment interest, rather than on the Federal
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rate. As the district court stated, and we now hold, judgments that are based on both state and
federal law with respect to which no distinction is drawn shall have applicable interest calculated
at the federal interest rate. Id. at 280 (citations omitted). The court distinguished wage and
hour cases in which liquidated damages are awarded, because interest is not available on FLSA
claims where liquidated damages are awarded, but is available on New York labor Law claims
where liquidated damages are awarded. They stand for the proposition that where prejudgment
interest can only be awarded on the basis of what is solely a state claim, it is appropriate to use
the state interest rate. Id. at 280 n.2.
Comment on Thomas v. iStar Financial: New York has a 9% rate of prejudgment
interest. In light of Thomas, plaintiffs attorneys in New York should think about using a verdict
form in discrimination cases that distinguishes between awards under State law and awards
under Federal law.
L. Compensatory Damages
Thomas v. iStar Financial, Inc., 629 F.3d 276, 281, 110 Fair Empl.Prac.Cas. (BNA) 1761
(2d Cir. 2010) (per curiam), was a case brought under Title VII and under the New York City
Human Rights Law. The court rejected plaintiffs argument that his compensatory damages
should have included damages for his inability to close on a house: Likewise, evidence that
Thomas had asked for an advance on his bonus some eight months before he was fired was an
insufficient basis for a reasonable jury to find that damages related to Thomas's inability to close
on a house were reasonably foreseeable to the defendants. See Hadley v. Baxendale, 9 Exch 341,
156 ER 145 (Eng.1854).
Comment on Thomas v. iStar Financial and Hadley v. Baxendale: Did we ever think
we would see that case cited as a rule of decision in an employment case? Keep those first-
year notebooks around!
Schandelmeier-Bartels v. Chicago Park District, 634 F.3d 372, 111 Fair Empl.Prac.Cas.
(BNA) 739, 78 Fed.R.Serv.3d 1023 (7th Cir. 2011), reversed the district courts grant of
judgment as a matter of law, and reinstated the jury verdict on liability for the Caucasian Title
VII racial discrimination plaintiff. The court held, however, that the jurys award of $200,000 in
compensatory damages was excessive and that no award above $30,000 would have been
reasonable. The court explained at p. *14:

We do consider Schandelmeier's testimony concerning the emotional impact of
the discriminatory acts that were directed at her, including Adams's racist tirade and her
termination. Although Adams's rants on July 31st and August 1st were understandably
offensive and disturbing to Schandelmeier, those incidents were also isolated. She was
not subjected to such incidents throughout her employment with the Park District, but
only twice, and she did not testify to any lasting physical or emotional effects resulting
from Adams's abuse. Regarding her termination, she testified that she was disturbed,
devastated and upset to be losing her job, but she also testified that she found a new
job just 10 days later. Schandelmeier did not testify to any lasting emotional or physical
ill-effects from losing her job with the Park District.
The court also surveyed other awards. Plaintiff did not rely on any expert.
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M. Punitive Damages
1. Upholding Entitlement
Thomas v. iStar Financial, Inc., 629 F.3d 276, 281, 110 Fair Empl.Prac.Cas. (BNA) 1761
(2d Cir. 2010) (per curiam), was a case brought under Title VII and under the New York City
Human Rights Law. Plaintiff lost on his racial discrimination claim at trial, but prevailed on his
retaliation claim. The court held that the defendant company subjected itself to punitive-damage
liability by allowing an antagonist of plaintiffs to participate in the decision to terminate him:
Similarly, the record reveals sufficient evidence for a jury find that iStar was recklessand thus
susceptible to punitive damagesby allowing Baron to participate in the decision to terminate
Thomas when senior officials at the company knew the two men did not get along.
2. Amounts
Thomas v. iStar Financial, Inc., 629 F.3d 276, 279, 110 Fair Empl.Prac.Cas. (BNA) 1761
(2d Cir. 2010) (per curiam), was a case brought under Title VII and under the New York City
Human Rights Law. Plaintiff lost on his racial discrimination claim at trial, but prevailed on his
retaliation claim. The jury awarded $1.6 million in punitive damages award on the retaliation
claim, and the trial court granted defendants Rule 59 motion for a new trial on punitive
damages, holding that $190,000 was the largest amount constitutionally permissible. Plaintiff
then joined with defendant in petitioning for a reduction of the punitive-damages award to
$190,000. The petition was granted, and plaintiff appealed. The court held: It is settled law
that a plaintiff in federal court, whether prosecuting a state or federal cause of action, may not
appeal from a remittitur order he has accepted. Id. (citations omitted). The court held that
plaintiff could not escape this rule by petitioning, or joining with defendant in petitioning, for a
reduction. Id.
3. Lower Court Chopped Too Much from the Award
Quigley v. Winter, 598 F.3d 938 (8th Cir. 2010), affirmed the jury verdict under the Fair
Housing Act, and held that the plaintiff tenant had established sexual harassment by the landlord
and thus a hostile housing environment. The jury awarded $250,000 in punitive damages, and
the lower court reduced the award to $20,527.50. The court explained the lower courts
reduction: The district court noted the punitive damages award was more than eighteen times
the compensatory damages award ($13,685.00) and found the award was excessive and did not
comport with due process. The district court reduced the award to $20,527.50, which amounted
to one and a half times the compensatory damages award, for the simple reason that [Winter's]
conduct ... can be considered only as to what he said and did directly to [Quigley]. Id. at 953.
The Eighth Circuit held that the jury should be presumed to follow the instruction that its award
should be based only on defendants conduct towards Quigley, and held that the conduct was
reprehensible but a single-digit multiplier was appropriate. Relying on the penalty structure of
$55,000 for first-time violations in cases brought by the Attorney General, the court stated:
While we agree with the district court that the jury's punitive damage award was
excessive, we disagree with the district court's assessment that $20,527.50, which is one
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and a half times the compensatory award, sufficiently reflects the reprehensibility of
Winter's conduct. We conclude an appropriate punitive damages award in this case is
$54,750. This amount is four times greater than Quigley's compensatory damages
($13,685.00), which we find is an appropriate ratio under the circumstances of this case.
This amount comports with due process, while achieving the statutory and regulatory
goals of retribution and deterrence. See Campbell, 538 U.S. at 425.
Id. at 955-56.
N. Attorneys Fees
1. Enhancements
Perdue v. Kenny A. ex rel. Winn, __ U.S. __, 130 S.Ct. 1662, 176 L.Ed.2d 494, 109 Fair
Empl.Prac.Cas. (BNA) 1 (2010) (Alito, J.), reversed the enhancement of a fee award in a 1983
class action involving a challenge to foster child services in two Georgia counties, on behalf of
3,000 children. The five-Justice majority strongly endorsed the lodestar approach as providing a
more objective basis for awarding and reviewing fees than the old standard of Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974). The Court described the
virtues of the lodestar approach at 1672:
Although the lodestar method is not perfect, it has several important virtues.
First, in accordance with our understanding of the aim of fee-shifting statutes, the
lodestar looks to the prevailing market rates in the relevant community. . . . Developed
after the practice of hourly billing had become widespread . . . the lodestar method
produces an award that roughly approximates the fee that the prevailing attorney would
have received if he or she had been representing a paying client who was billed by the
hour in a comparable case. Second, the lodestar method is readily administrable . . . ; and
unlike the Johnson approach, the lodestar calculation is objective . . . and thus cabins
the discretion of trial judges, permits meaningful judicial review, and produces
reasonably predictable results.
(Emphasis in original.) The Court described, at 1672-73, six rules that it gleaned from prior
decisions:
Our prior decisions concerning the federal fee-shifting statutes have established
six important rules that lead to our decision in this case.
First, a reasonable fee is a fee that is sufficient to induce a capable attorney to
undertake the representation of a meritorious civil rights case. See Delaware Valley I,
478 U.S., at 565, 106 S.Ct. 3088 ([I]f plaintiffs ... find it possible to engage a lawyer
based on the statutory assurance that he will be paid a reasonable fee, the purpose
behind the fee-shifting statute has been satisfied); Blum, supra, at 897, 104 S.Ct. 1541
([A] reasonable attorney's fee is one that is adequate to attract competent counsel, but
that does not produce windfalls to attorneys (ellipsis, brackets, and internal quotation
marks omitted)). Section 1988's aim is to enforce the covered civil rights statutes, not to
provide a form of economic relief to improve the financial lot of attorneys. Delaware
Valley I, supra, at 565, 106 S.Ct. 3088.
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Second, the lodestar method yields a fee that is presumptively sufficient to
achieve this objective. See Dague, supra, at 562, 112 S.Ct. 2638; Delaware Valley I,
supra, at 565, 106 S.Ct. 3088; Blum, supra, at 897, 104 S.Ct. 1541; see also Gisbrecht,
supra, at 801-802, 122 S.Ct. 1817. Indeed, we have said that the presumption is a
strong one. Dague, supra, at 562, 112 S.Ct. 2638; Delaware Valley I, supra, at 565,
106 S.Ct. 3088.
Third, although we have never sustained an enhancement of a lodestar amount for
performance, see Brief for United States as Amicus Curiae 12, 17, we have repeatedly
said that enhancements may be awarded in rare and exceptional circumstances.
Delaware Valley I, supra, at 565, 106 S.Ct. 3088; Blum, supra, at 897, 104 S.Ct. 1541;
Hensley, 461 U.S., at 435, 103 S.Ct. 1933.
Fourth, we have noted that the lodestar figure includes most, if not all, of the
relevant factors constituting a reasonable attorney's fee, Delaware Valley I, supra, at
566, 106 S.Ct. 3088, and have held that an enhancement may not be awarded based on a
factor that is subsumed in the lodestar calculation, see Dague, supra, at 562-563, 112
S.Ct. 2638; Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S.
711, 726-727, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (Delaware Valley II) (plurality
opinion); Blum, 465 U.S., at 898, 104 S.Ct. 1541. We have thus held that the novelty and
complexity of a case generally may not be used as a ground for an enhancement because
these factors presumably [are] fully reflected in the number of billable hours recorded
by counsel. Ibid. We have also held that the quality of an attorney's performance
generally should not be used to adjust the lodestar [b]ecause considerations concerning
the quality of a prevailing party's counsel's representation normally are reflected in the
reasonable hourly rate. Delaware Valley I, supra, at 566, 106 S.Ct. 3088.
Fifth, the burden of proving that an enhancement is necessary must be borne by
the fee applicant. Dague, supra, at 561, 112 S.Ct. 2638; Blum, 465 U.S., at 901-902, 104
S.Ct. 1541.
Finally, a fee applicant seeking an enhancement must produce specific evidence
that supports the award. Id., at 899, 901, 104 S.Ct. 1541 (An enhancement must be based
on evidence that enhancement was necessary to provide fair and reasonable
compensation). This requirement is essential if the lodestar method is to realize one of
its chief virtues, i.e., providing a calculation that is objective and capable of being
reviewed on appeal.
The Court said at 1674 that enhancements are possible but rare: In light of what we have said in
prior cases, we reject any contention that a fee determined by the lodestar method may not be
enhanced in any situation. The lodestar method was never intended to be conclusive in all
circumstances. Instead, there is a strong presumption that the lodestar figure is reasonable, but
that presumption may be overcome in those rare circumstances in which the lodestar does not
adequately take into account a factor that may properly be considered in determining a
reasonable fee. The Court did not shut the door entirely on such a possibility, but was limiting:
We conclude that there are a few such circumstances but that these circumstances are indeed
rare and exceptional, and require specific evidence that the lodestar fee would not have been
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adequate to attract competent counsel, Blum, supra, at 897, 104 S.Ct. 1541 (internal quotation
marks omitted). Id. The Court described those circumstances:
First, an enhancement may be appropriate where the method used in determining
the hourly rate employed in the lodestar calculation does not adequately measure the
attorney's true market value, as demonstrated in part during the litigation.FN5 This may
occur if the hourly rate is determined by a formula that takes into account only a single
factor (such as years since admission to the bar) FN6 or perhaps only a few similar
factors. In such a case, an enhancement may be appropriate so that an attorney is
compensated at the rate that the attorney would receive in cases not governed by the
federal fee-shifting statutes. But in order to provide a calculation that is objective and
reviewable, the trial judge should adjust the attorney's hourly rate in accordance with
specific proof linking the attorney's ability to a prevailing market rate.
Respondents correctly note that an attorney's brilliant insights and critical
maneuvers sometimes matter far more than hours worked or years of experience. . . .
But as we said in Blum v. Stenson, 465 U.S. 886, 898, 104 S.Ct. 1541, 79 L.Ed.2d 891
(1984), [i]n those cases, the special skill and experience of counsel should be reflected
in the reasonableness of the hourly rates.
FN6. See, e.g., Salazar v. District of Columbia, 123 F.Supp.2d 8 (D.D.C.2000);
Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354 (D.D.C.1983), aff'd in part, rev'd in
part, 746 F.2d 4 (C.A.D.C.1984).
Second, an enhancement may be appropriate if the attorney's performance
includes an extraordinary outlay of expenses and the litigation is exceptionally protracted.
As Judge Carnes noted below, when an attorney agrees to represent a civil rights plaintiff
who cannot afford to pay the attorney, the attorney presumably understands that no
reimbursement is likely to be received until the successful resolution of the case, 532
F.3d, at 1227, and therefore enhancements to compensate for delay in reimbursement for
expenses must be reserved for unusual cases. In such exceptional cases, however, an
enhancement may be allowed, but the amount of the enhancement must be calculated
using a method that is reasonable, objective, and capable of being reviewed on appeal,
such as by applying a standard rate of interest to the qualifying outlays of expenses.
Third, there may be extraordinary circumstances in which an attorney's
performance involves exceptional delay in the payment of fees. An attorney who expects
to be compensated under 1988 presumably understands that payment of fees will
generally not come until the end of the case, if at all. . . . Compensation for this delay is
generally made either by basing the award on current rates or by adjusting the fee based
on historical rates to reflect its present value. Missouri v. Jenkins, 491 U.S. 274, 282,
109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) (internal quotation marks omitted). But we do
not rule out the possibility that an enhancement may be appropriate where an attorney
assumes these costs in the face of unanticipated delay, particularly where the delay is
unjustifiably caused by the defense. In such a case, however, the enhancement should be
calculated by applying a method similar to that described above in connection with
exceptional delay in obtaining reimbursement for expenses.
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The Court remanded the case for further proceedings. Justice Alito wrote the majority opinion,
joined by the Chief Justice and Justices Scalia, Kennedy, and Thomas. Justices Kennedy and
Thomas also wrote separate concurring opinions. Justice Breyer concurred in part and dissented
in part, joined by Justices Stevens, Ginsburg, and Sotomayor.
2. Fee Recoveries
Quigley v. Winter, 598 F.3d 938, 956-59 (8th Cir. 2010), affirmed the jury verdict under
the Fair Housing Act, and held that the plaintiff tenant had established sexual harassment by the
landlord and thus a hostile housing environment. The court held that the lower court erred in
failing to conduct a lodestar analysis and in limiting the fee award to $20,000 because of
concerns about defendants ability to pay. Rather than remand the case, it awarded $78,044.33
in fees itself. The court accepted counsels hourly rates but cut their hours by a third because the
case was too heavily lawyered and too many attorneys moved in and out of the case. Judge
Gruender dissented from the failure to remand the fee issue. Id. at 959-60.
O. Sanctions
Peterson v. Archstone Communities LLC, __ F.3d __, 2011 WL 1437501 (D.C. Cir.
April 15, 2011), reversed the dismissal of the pro se plaintiffs case, holding that the failure to
appear at a single motions hearing did not justify dismissal of the action. The court rejected
defendants argument that plaintiff had also filed baseless discovery motions, because
defendants opposition to plaintiffs motion for appointment of counsel had represented to the
court that plaintiff was doing a good job of representing herself: In a pleading opposing
Peterson's motion for appointment of counsel to represent her in the district court, Archstone
advised the court as follows: [C]ounsel for Archstone has observed that Ms. Peterson has, to
date, ably drafted and responded to motions, participated in discovery conferences, and
otherwise capably represented herself in this matter. . . . And the district court, in denying
Peterson's motion for appointment of counsel, found that her motions display not only a
workable familiarity with the Federal Rules of Civil Procedure and the local rules of this Court,
but also her ability to represent herself adequately. . . .
Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d 228 (1st Cir. 2010), reversed the award of
$130,000 in defendants attorneys fees against the civil rights political-discrimination and due
process plaintiffs, affirmed the imposition of sanctions on plaintiffs counsel under 28 U.S.C.
1927, and reduced the amount of the sanctions from over $64,936 to $5,000. The court held
that the lower court improperly emphasized the failure of plaintiffs evidence at trial, and did not
adequately consider the information known to plaintiff at the time the Complaint was filed. Id at
237-38. Examining the record itself, the court noted that some of the evidence supporting
plaintiffs had been excluded at trial because of the failure to provide English translations, or
other problems that did not affect the reasonableness of reliance on the substance of the
evidence. The court concluded: Overall, it was reasonable for the plaintiffs to attribute a
political motive to the apparent campaign of harassment against them, given the undisputed
hostility between members of the NPP and PDP in Sabana Grande, the intimations of a
connection between the Mayor and Vargas-Santiago, and the apparent absence of any legitimate
explanation for the excessively punitive response from the police administration to Vargas-
Santiago's allegations against the plaintiffs. Id. at 239 (citation omitted).
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In sum, our review of the record finds the evidence available to plaintiffs at the
time of filing easily sufficient to support the reasonableness of their suit. We are left to
choose between one of two possible conclusions concerning the basis for the district
court's contrary assessment. First, the district court may have failed to give any
consideration to the evidence we have discussed above, relying solely upon the plaintiffs'
ultimate inability to support their case at trial as a proxy for the reasonableness of their
suit at the outset-in other words, a pure application of hindsight logic. Second, the court
may have duly considered all available evidence of reasonableness, but substantially
discounted it in light of the failure of proof at trial. The choice between the two makes
little difference. In either case, it is clear that the court gave significant weight to a factor
that should have received little or no consideration in its analysis . . . and we therefore
must conclude that the court abused its discretion.
Id. at 241 (citations omitted). In the next step of its analysis, the court cautioned that a finding
that an originally reasonable claim was prosecuted after it became untenable was particularly
prone to impermissible hindsight analysis. Thus, while a court need not find bad faith to justify
an award of fees for the continuation of a clearly untenable claim . . . it must at a minimum find
that, following the filing of the claim, circumstances changed to such an extent that a reasonable
person could not help but conclude that the claim was no longer viable. Such a change would
include, for example, the receipt of evidence in the course of discovery establishing a complete
defense, or a development in the controlling law that foreclosed the claim. Id. at 241-42
(citation omitted). The court held that plaintiffs survival of summary judgment may or may not
bear on the reasonableness of the claim, depending on the extent to which it was based on the
merits. Id. at 242. Ordinarily, however, one would not expect to see an untenable claim survive
a summary judgment on the merits, as occurred in the case at bar. Id. The court reversed the fee
award. Turning to the sanctions against plaintiffs counsel, the court first held that it had
jurisdiction to consider the appeal despite the failure to name plaintiffs counsel as an appellant
in the Notice of Appeal, since it was clear from the Notice that an appeal was sought from the
order awarding feeds against plaintiff and sanctioning plaintiffs counsel, and it was clear that an
appeal was sought as to the sanctions against counsel. Under the 1993 amendment to Rule 3,
F.R.A.P., this was sufficient. Id. at 243-44. The court held that Rule 11, Fed. R. Civ. Pro., was
not available as a basis for sanctions because defendants had not filed a 21-day safe harbor
motion, and the lower court had not on its own initiative issued an order to show cause why Rule
11 sanctions should not be imposed. Id. at 244-45. The court continued:
Even if these procedural safeguards had been satisfied, Rule 11 could not provide
a proper basis for the court's award of sanctions. The court's order detailed three separate
grounds for sanctions, but only the first of thesethe vexatious conduct of plaintiffs'
counselwas adequately supported. The court cited as additional or alternative grounds
(1) the filing of frivolous claims ... with no basis in fact and (2) the filing of frivolous
appeals. Our holding that the plaintiffs' suit had adequate foundation at the time of
filing forecloses the frivolous claims argument, and the court made no findings
sufficient to support its characterization of plaintiffs' prior appeals as frivolous.
Moreover, it is Federal Rule of Appellate Procedure 38, not Federal Rule of Civil
Procedure 11, that authorizes sanctions for the filing of frivolous appeals.
Id. at 245 (footnote omitted). The court held that Rule 11 could not reach the attorney
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misconduct basis for sanctions, because the misconduct in question did not involve the filing of
papers, to which Rule 11 was restricted. Id. The court held, however, that 1927 was well-
suited to the types of vexatious conduct at issue:
The types of litigation conduct we have previously found vexatious and
unreasonablee.g., attempting to introduce evidence on irrelevant matters in the face of
numerous admonitions to desist, and engag[ing] in obfuscation of the issues,
hyperbolism and groundless presumptions, . . . pervade the record here. At trial,
attorney Gonzlez repeatedly ignored evidentiary rulings, pressing forward to ask
questions identical to those barred, often just moments prior, by the trial judge. On one
occasion, attorney Gonzlez refused to leave the sidebar when ordered to after an adverse
ruling, forcing the judge to remove the jury from the room and censure the attorney for
his obstinacy and manifest disrespect. Attorney Gonzlez further persisted, in
contravention of his obligations as an officer of the court, in making blatant
misrepresentations and referring to matters not established by evidence in the record.
This misconduct evoked a string of warnings from an admirably patient trial judge,
starting with an order near the outset of the case instructing plaintiffs' counsel to refrain
from making injurious remarks and avoid unnecessary rhetoric irrelevant to the issues
of the case, and proceeding to multiple, on-the-record admonishments and threats of
sanction during trial.
Id. at 246 (footnote omitted). The court held that, where the district court made no effort to
calculate the additional costs to defendants arising from the misconduct but simply took a third
of the total fee award, the sanctions award must be considered solely in relation to deterrence.
Id. at 247-48. The court stated that, while a lasting sting was appropriate for deterrence,
counsel could be deterred by something short of a financial disaster:
There can be no doubt of the need for a sanction that will signal to attorney
Gonzlez the seriousness of his misconduct and deter similar behavior in the future.
Nonetheless, we find $64,936 to exceed what is reasonably necessary for these purposes.
The sum lies far outside the mainstream in this circuit, where sanctions typically amount
to less than $10,000. Moreover, the sanction appears likely to impose an unjustifiable
hardship on attorney Gonzlez, who, according to counsel's representations to the court,
operates a small law office in partnership with his son, and for whom $64,936 would
likely threaten financial disaster. Accordingly, we modify the sanction to $5,000, a sum
we deem sufficient to deter similar conduct by attorney Gonzlez in the future and place
other potential offenders on notice of the consequences of such conduct.
Id. at 248-49 (footnotes omitted).
Harris v. Maricopa County Superior Court, 631 F.3d 963, 978, 111 Fair Empl.Prac.Cas.
(BNA) 503 (9th Cir. 2011), reversed the award of $125,000 in attorneys fees and expenses to
the prevailing defendant. The court held that the lower court erred by dividing fees for general
work on the case equally across all causes of action, and held that some causes of action were
frivolous, some were not frivolous. The court held, for example, that plaintiffs hostile-
environment claim was sufficiently frivolous to justify a fee award against plaintiff because he
only alleged conduct sufficient to make out a disparate-treatment claim, and did not allege severe
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and pervasive conduct. The court also held that fees could only be awarded to defendants for
work done exclusively on the frivolous claims:
As we have already explained, in a civil rights action with multiple claims, only some of
which are groundless, a defendant is entitled only to those fees attributable exclusively to
defending against plaintiff's frivolous claims. If the work is performed in whole or in part
in connection with defending against any of plaintiff's claims for which fees may not be
awarded, such work may not be included in calculating a fee award. Accordingly, the
fees properly attributable to this claim, if any, would be quite minimal.
Norelus v. Denny's, Inc., 628 F.3d 1270, 111 Fair Empl.Prac.Cas. (BNA) 4 (11th Cir.
2010), affirmed the trial courts imposition of sanctions jointly and severally on plaintiff and on
plaintiffs counsel, in the amount of $387,738.45, for making 868 changes to plaintiffs
deposition testimony through a letter claiming errata, and for pursuing plaintiffs claim despite
knowledge of plaintiffs changing story and despite fact witnesses who testified that some of
plaintiffs contentions could not possibly be true because of the physical layout of the workplace.
For example, the court stated:
From the deposed witnesses' descriptions of the restaurants involved, it is
inconceivable that gross sexual harassment and misconduct could have occurred on a
near-daily basis for nearly a year, as Norelus claimed it did, without any witnesses having
seen or heard anything. According to Boleda, there is no way anything is going to
happen in that little tiny restaurant and [some employees are] not going to see what's
going on. Another waitress, Michele Stewart, explained that everything is open.
Employees are all over the restaurant. She agreed that [t]here's no way the conduct
Norelus alleged could have occurred without some employee seeing something. Line
cook Martin testified that it would be impossible for the conduct alleged to occur
without people knowing because the restaurant is too small.
Id. at 1275-76. Plaintiff admitted lying in her deposition and asked what was wrong with that,
and in her deposition denied allegations in her Complaint. The court stated that the witnesses on
whom plaintiff relied uniformly failed to corroborate her claims, described the evidence against
plaintiff as a mountain, and criticized plaintiffs counsel for continuing to believe their client
despite her shifting stories, the lack of corroborating evidence, and the strength of the evidence
against her claims. Plaintiffs counsel did arrange for a lie detector test to be administered to
plaintiff. The examiner found that plaintiff was lying about some matters, but not about her core
allegations. Id. at 1277. Plaintiffs counsel also arranged for plaintiff to be examined by a
clinical psychologist. They selected Dr. Astrid Schutt-Aine, a psychologist who spoke Haitian
French Creole, to perform the evaluation. She was of the opinion that Norelus' symptoms were
consistent with those exhibited by people suffering from Post-Traumatic Stress Disorder. The
record contains no evidence, however, that Dr. Schutt-Aine formed any opinion about the source
or nature of any trauma Norelus had suffered. Id. The errata sheet was compiled by using
plaintiffs brother as a translator, having an associate read the questions and the brother translate
the questions and plaintiffs answers. Id. The court continued:
The finished product errata sheet was actually sixty-three sheets that made 868 changes
to Norelus' deposition testimony. The reason given for more than 500 of the 868 changes
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to Norelus' deposition testimony was merely that Norelus [d]id not understand what was
being asked. The reasons given for most of the other changes in Norelus' testimony
were classified into three broad categories: poor translation by interpreter,
clarification of response, and refreshed recollection. At the end of the lengthy errata
sheet Norelus signed a sworn statement certifying that she had read the transcript of her
deposition and that it is a true and accurate recording of the proceedings had at the time
and place designated with the exceptions, if any, on the ERRATA sheet.
Id. at 1278. This was about four weeks before the start of trial. The court held that the
improper submission of the massive errata document rendered the eight days spent on Norelus'
deposition a waste of time and money to say nothing of the time the attorneys were forced to
spend on the issues created by the document itself, and that this violated 28 U.S.C. 1927. The
court identified the specific issue it was deciding:
The issue is not whether bringing the action in the first place was sanctionable. The issue
is not even whether continuing to pursue the case after all of Norelus' witnesses refused
to corroborate her claims was sanctionable. The issue is whether creating and submitting
the sixty-three page errata document and then continuing to press forward with Norelus'
claims, which had been left completely unsupported once the errata document rendered
her testimony useless, constituted conduct sanctionable under 1927.
Id. at 1291-92. The court stated that plaintiff and her counsel were not being sanctioned for the
lack of corroborating witnesses, although it would have been likely that there would have been
corroborating witnesses if plaintiffs testimony had been true:
. . . this is not a case where the claimed harassment occurred only when the victim and
abusers were behind closed doors or in a manner in which there likely would be no
corroboration. To the contrary, Norelus claimed not only that her managers sexually
harassed her virtually every day for eleven months, but also that they regularly raped her
and forced her to perform oral sex on a near-daily basis. She claimed most of the abuse
occurred in one of two relatively small restaurants where there were few, if any, places to
hide. If the alleged acts actually happened, they happened where many of them would
have been seen or heard by other employees. This is a case where the plaintiff claimed
that at least seven of her co-workers witnessed at least some of sexual abuse during the
eleven months it allegedly had occurred over and over again. This is not a case in which
it is unreasonable to expect corroborating evidence. It is a case in which, if the plaintiff's
story were true, it would be incredible not to have some corroborating evidence.
Id. at 1292. The court held that the fees and costs incurred by defendants were a proper part of
the sanctions award. Id. at 1297-1302. District Judge Bowen, sitting by designation, declined to
join Part III-C of the opinion. Id. at 1302. Judge Tjoflat dissented. Id. at 1302-12.
VII. Federal-Sector Particularities
Artis v. Bernanke, 630 F.3d 1031, 111 Fair Empl.Prac.Cas. (BNA) 300 (D.C. Cir. 2011),
reversed the dismissal of the class complaint of a group of secretaries presently or formerly
employed by the Federal Reserve Board. The court held that the class representatives had
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sufficiently cooperated with the counseling process by providing general allegations of the
classwide discrimination, coupled with recent examples of which they had personal knowledge.
It rejected the governments argument that the case should be dismissed because of bad faith in
the counseling process. The court stated at 1038-39 (citations omitted):
The Board cites several instances of obstruction of the counseling process by the
secretaries and their lawyer that it attributes to bad faith: Some if not all the secretaries
refused to discuss personal experiences of discrimination in group counseling sessions.
Some also refused to give specific examples of discrimination in their individual
counseling sessions, despite the Board's request for details. Finally, the secretaries
counsel refused to agree to an extension of the 30-day counseling period so the Board
could consider his request for statistical data and obtain the information if appropriate.
Assuming the Board accurately perceives a lack of good-faith cooperation in this
conduct, the secretaries nevertheless satisfied the administrative counseling requirement.
The counselees' alleged bad faith is relevant only to the extent it completely
frustrat[ed] the agencies' ability to investigate complaints. . . . As we have explained, the
Board was not so stymied. Despite their lawyer's counterproductive advice, the
secretaries managed to convey much more than bare notice of the basis of [their]
complaint. . . . Doubtless other class agents were not as forthcoming as Carter, Dorey,
Love-Blackwell, and Williams. But this is irrelevant to the administrative exhaustion
issue, since a single class agent may satisfy the counseling requirement as to the entire
class. . . .
Bonds v. Leavitt, 629 F.3d 369, 378-79, 111 Fair Empl.Prac.Cas. (BNA) 171, 31 IER
Cases 1078 (4th Cir. 2011), reversed the dismissal of plaintiffs claims under the Civil Service
Reform Act of 1978, holding that when a Federal employee raises both discrimination claims
and CSRA claims in an administrative mixed-case complaint to an agency EEO office, and
where 120 days pass without an administrative decision, she may seek de novo determinations of
both her discrimination claims and her CSRA claims.
Carson v. U.S. Office of Special Counsel, __F.3d __, 2011 WL 650495 (6th Cir. Feb. 24,
2011), affirmed the denial of a petition for mandamus to require the OSC to investigate his
claims of prohibited personnel practices, but held that mandamus is available in limited
circumstances: Thus, we hold that a district court has subject matter jurisdiction to issue a writ
of mandamus only if it determines that the Office of Special Counsel has declined to investigate
a complaint at all; it has no subject matter jurisdiction to consider the Office of Special Counsel's
jurisdictional determinations or the merits of its investigations.
VIII. Appellate Tips for Effective Advocacy
The D.C. Circuit Plays Gotcha: Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d
370, 375 n.*, 108 Fair Empl.Prac.Cas. (BNA) 795 (D.C. Cir. 2010), affirmed the grant of
summary judgment to defendant on the ADEA claim involving failure to promote to partner.
The court held that plaintiff-appellant did not preserve his challenge to the lower courts
rejection of his piggybacking argument as to the timeliness of his charge of discrimination:
In his opening brief, however, Schuler refers to piggybacking only in a footnote . . . in which he
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makes no affirmative argument that he should be allowed to piggyback, contending only the
reasons the district court gave for denying piggybacking were wrong. Because he first makes his
affirmative argument in his reply brief, we do not consider it.
Ahern v. Shinseki, 629 F.3d 49, 58-59, 110 Fair Empl.Prac.Cas. (BNA) 1785 (1st Cir.
2010), affirmed the grant of summary judgment to the Title VII defendant. The court held that
plaintiffs waived their constructive-discharge claims by presenting only terse support in the
district court, which led to a finding of waiver below, and on appeal ignoring the finding of
waiver and attempting to bolster these claims by a different merits-based theory. The court
stated: An appellant cannot change horses in mid-stream, arguing one theory below and a quite
different theory on appeal. . . . The plaintiffs have done violence to this principle and, therefore,
have waived (or, at least, forfeited) their constructive discharge claim. (Citations omitted.)
Lisdahl v. Mayo Foundation, 633 F.3d 712, 190 L.R.R.M. (BNA) 2325 (8th Cir. 2011),
affirmed the grant of summary judgment to the USERRA defendant. The court disapproved of
plaintiffs approach, stating at p. *2: The district court made fact-findings about the Johnson-
Lisdahl relationship: We expressly find that the concentrated effort by Lisdahl, and his attorney,
to demonize Johnson was as fictionalized as it was scurrilous, and that there is absolutely no
credible basis to ascribe any legitimacy to that claimed fear.
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2
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ALI-ABA Course oI Study
Current Developments in Employment Law:
The Obama Years at Mid-Term
July 28 - 30, 2011
Santa Fe, New Mexico
Constructive Discharge: Is Deliberateness/Intent an
Element Necessary to Establish a Constructive Discharge
By
Robert B. Fitzpatrick
Robert B. Fitzpatrick, PLLC
Washington, D.C.
2011 Robert B. Fitzpatrick, PLLC.
All Rights Reserved.
2547
2
2548

DISCLAIMER OF ALL LIABILITY AND
RESPONSIBILITY

THE INFORMATION CONTAINED HEREIN IS BASED
UPON SOURCES BELIEVED TO BE ACCURATE AND
RELIABLE INCLUDING SECONDARY SOURCES.
DILIGENT EFFORT WAS MADE TO ENSURE THE
ACCURACY OF THESE MATERIALS, BUT THE
AUTHOR ASSUMES NO RESPONSIBILITY FOR ANY
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HAS NOT BEEN AFFECTED OR CHANGED BY
RECENT DEVELOPMENTS.

THIS PAPER IS PRESENTED AS AN INFORMATIONAL
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READERS AS A LEARNING AID; IT DOES NOT
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INFORMATION CONTAINED IN THIS PAPER MAY
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AUTHOR BE LIABLE FOR ANY DIRECT, INDIRECT,
CONSEQUENTIAL, OR OTHER DAMAGES RESULTING
FROM AND/OR RELATED TO THE USE OF THIS
MATERIAL.

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Copyright 2011, Robert B. Fitzpatrick, Robert B. Fitzpatrick, PLLC, Washington, D.C. All Rights
Reserved

Const ruct ive
Discharge:
Is Deliberat eness/Int ent an
Element Necessary t o Est ablish
a Const ruct ive Discharge?
by

Robert B. Fitzpatrick
Circuit Split

Federal Circuits are split on the issue of whether
deliberateness/intent is a necessary element to establish a claim of
constructive discharge. The Eighth and Fourth Circuits have
addressed the issue recently, and the Ninth Circuit gave a helpful
description of the state of the law across circuits in Poland v.
Chertoff, below.

In 2004, the U.S. Supreme Court decided Pennsylvonio Stote Police v.
SuJers, S42 0.S. 129, 124 S.Ct. 2S42, 1S9 L. Eu. 2u 2u4 (2uu4). In SuJers, the
Couit helu that employeis may be helu liable unuei Title vII foi constiuctive
uischaige, that constiuctive uischaige may be consiueieu a tangible
employment action, anu that the Fllertb,Foroqber affiimative uefense is
available to employeis in some constiuctive uischaige cases. The SuJers
Couit fuithei helu that an employee biinging a cause of action foi hostile
woik enviionment constiuctive uischaige must show ( 1) that there was a
hostile work environment and ( 2) that the working conditions were
so intolerable that a reasonable person would have felt compelled
to resign. The Court did not impose an intent requirement, leaving
open the question of whether intent is a necessary element in
constructive discharge cases generally. For further analysis of this
subject, see Crystal L. Norrick, Eliminating the Intent Requirement in
Constructive Discharge Cases: Pennsylvania State Police v. Suders,
47 Wm. And Mary L. Rev. 1813 ( 2006) .

PolonJ v. Cbertoff, 494 F.3d 1174; 2007 U.S. App. LEXIS 17247
( 9
th
Cir. 2007) , affirmed in part, reversed in part, and vacated in
part a decision by the District Court entering judgment in favor of a
former employee of the U.S. Customs Service. In dicta, the Court
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Reserved

discussed the circuit split on the issue of intent in constructive
discharge claims, stating as follows:

"0nlike some of oui sistei ciicuits, we uo not iequiie that, in auuition to
pioving that woiking conuitions weie intoleiable, a plaintiff must establish
that his employei cieateu the intoleiable conuitions with the intent to cause
the employee to iesign. Compore |Wotson v. NotionwiJe lns. Co., 823 F.2d
360, 361; 1987 U.S. App. LEXIS 10011, 1-2 ( 9
th
Cir. 1987) ]
( holding that, to establish a claim of constructive discharge, the
plaintiff need not show that the employer subjectively intended to
force the employee to resign) , Ramos v. Davis & Geck, Inc., 167
F.3d 727, 732-33 ( 1
st
Cir. 1999) ( same) , Derr v. Gulf Oil Corp.,
796 F.2d 340, 343-44 ( 10
th
Cir. 1986) ( same) , Gross v. Exxon
Office Sys. Co., 747 F.2d 885, 888 ( 3
rd
Cir. 1984) ( same) , and
Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 ( 5
th
Cir. 1980)
( same) , with Elnshar v. Speedway SuperAmerica, LLC, 484 F.3d
1046, 1058 ( 8
th
Cir. 2007) ( requiring plaintiff to prove employers
intent) , Goldmeier v. Allstate Ins. Co., 337 F.3d 629, 635 ( 6
th
Cir.
2003) ( same) , and J ohnson v. Shalala, 991 F.2d 126, 131 ( 4
th
Cir.
1993) ( [ T] he standard for constructive discharge requires a
plaintiff to show both intolerable working conditions and a
deliberate effort by the employer to force the employee to quit.) .

See also Small v. Feather River College, 2011 U.S. Dist. LEXIS
51579, No. 2:10-CV-3026-J AM-GGH ( E.D. Ca. May 3, 2011) ,
following Poland v. Chertoff in holding that the Ninth Circuit does
not require a plaintiff to establish that his employer created the
intolerable conditions with the intent to cause the employee to
resign.

Petrosino v. Bell Atl., 385 F.3d 210; 2004 U.S. App. LEXIS
20513 ( 2
nd
Cir. 2004) , reversed the grant of summary judgment on
appellants constructive discharge claim. The court stated:
Focusing first on the intent requirement, we recognize that in
some constructive discharge cases, plaintiffs have been able to
establish that employers acted with the specific intent to prompt
employees' resignations Certainly, where such evidence exists,
the mens rea requirement is easily established. Nevertheless, this
court has not expressly insisted on proof of specific intent.
Deferring decision on the issue in Whidbee v. Garzarelli Food
Specialties, Inc., [ 223 F.3d 62 ( 2
nd
Cir. 2000) ,] the court observed
that if a plaintiff suing for constructive discharge cannot show
specific intent, he or she must at least demonstrate that the
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employer' s actions were deliberate and not merely negligent or
ineffective. ( Internal citations omitted) .

See olso Rooney v. Brown 6roup Retoil, lnc., 2u11 0.S. Bist. LEXIS S4918, Case
No. u8-Cv-484-BRB-AKT (E.B.N.Y. Naich S1, 2u11), following Petrosino v.
Bell Atl. in holding that [ a] lthough the plaintiff is not burdened to
prove specific intent, she must at least show that the employers
actions were deliberate and not merely negligent or ineffective.
( quoting Petrosino v. Bell Atl. 385 F.3d at 230) .

Hiller v. Proxoir, lnc, 408 Fed. Appx. 408; 2010 U.S. App. LEXIS
24222 ( 2
nd
Cir. 2010) , cert. denied, No. 10-1299; 2011 U.S. LEXIS
4890 ( J une 27, 2011) , cert. denied, Docket No. 10-1299, 2010
U.S. LEXIS 4890 ( J une 27, 2011) , affirming summary judgment for
the employer on an employees claim that she was constructively
discharged in violation of Title VII. The Second Circuit held that to
establish a constructive discharge claim, a plaintiff must show that
the employer intentionally creates a work atmosphere that the
employee is forced to quit involuntarily. The employee filed a
petition for certiorari to the U.S. Supreme Court on November 24,
2010, presenting the question of whether a plaintiff seeking to
establish constructive discharge under Title VII must show that the
employer intended to cause the plaintiff to resign.
See olso TorJJ v. Brookboven Notl lob., No. u4-S262, 2uu7 0.S. Bist. LEXIS
S4S78, at *14 (E.B.N.Y. Nay 8, 2uu7), stating "|ijn light of |the employee'sj
own testimony that |his employeij was woiking to keep him as an employee
anu that he was tieateu well by his new supeivisoi, the Couit holus as a
mattei of law that no iational tiiei of fact coulu infei that the uefenuants
weie uelibeiately cieating an intoleiable woiking enviionment."

Goldmeier v. Allstate Ins. Co., 337 F.3d 629, 635 ( 6
th
Cir.
2003) , affirmed the District Courts grant of summary judgment to
the defendant employer, holding that to constitute a constructive
discharge, the employer must deliberately create intolerable
working conditions, as perceived by a responsible person, with the
intention of forcing the employee to quit and the employee must
actually quit. ( quoting Moore v. KUKA Welding Sys. & Robot Corp.,
171 F.3d 1073, 1080 ( 6
th
Cir. 1999) ) .

See olso Hitcbell v. 0niv. HeJ. Ctr., lnc., No. u7-414, 2u1u 0.S. Bist. LEXIS
8u194, at *21 n.9 (W.B. Ky. Aug. 9, 2u1u), noting that constiuctive uischaige
iequiies showing that employei intenueu to foice employee to quit, anu
iejecting plaintiff's claim because of eviuence that employei "wanteu hei to
stay."
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Reserved


ForJ v. 6HC, SuS F.Su S4S; 2002 U.S. App. LEXIS 20501 ( 6
th
Cir.
2002) , affirmed in part and reversed in part the District Courts
grant of summary judgment to the employer, stated that in order
to prove constructive discharge, [ a] plaintiff must show that the
employer intended and could reasonably have foreseen the impact
of its conduct on the employee.

West v. Tyson FooJs, S74 Feu. App'x 624, 64u (6th Cii. 2u1u), holuing that
"To ueteimine if theie is a constiuctive uischaige, both the employei's intent
anu the employee's objective feelings must be examineu."

Norotzky v. Notrono Cnty. Hem. hosp. BJ. of Trs., 61u F.Su SS8, S6S (1uth
Cii. 2u1u), stating that the Tenth Ciicuit applies 'an objective test unuei
which neithei |the plaintiff'sj subjective views of the situation, noi |the
employei'sj subjective intent aie ielevant.'" (quoting Tron v. Trs. of Stote
Colls. in Colo., SSS F.Su 126S, 127u (1uth Cii. 2uu4) (alteiations ueleteu)).

For additional cases in which the plaintiff was not required to
show that the employer intended to force the employee to quit,
see the following:

Ramos v. Davis & Geck, 167 F.3d 727, 732 ( 1st Cir. 1999) ;
Goss v. Exxon Office Sys. Co., 747 F.2d 885 ( 3d Cir. 1984) ;
Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 64 ( 5th Cir.
1980) ;
Lindale v. Tokheim Corp., 145 F.3d 953, 955 ( 7
th
Cir. 1998) ;
Nolan v. Cleland, 686 F.2d 806, 81314 ( 9th Cir. 1982) ;
0err v. 6ulf 0il Corp., 796 F.Su S4u (1uth Cii.1986);
Steele v. Offshore Shipbuilding Inc., 867 F.2d 1311, 1317
( 11th Cir. 1989) ;

For additional cases in which the plaintiff was required to show
that the employer intended to force the employee to quit, see:

Logan v. Dennys, 259 F.3d 558, 56869 ( 6th Cir. 2001)
( holding that constructive-discharge plaintiff must show that
employer had the intention of forcing the employee to quit) ;
Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 932 ( 8th Cir.
2000) ( overturning jury verdict for constructive discharge because
the plaintiff presented no evidence that it was [ the employers]
intention to force his resignation) .
Victory v. Hewlett-Packard Co., 34 F. Supp. 809, 826
( E.D.N.Y. 1999) ( Not only is it necessary to show intolerable
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working conditions, but the plaintiff must also allege facts sufficient
to prove that these conditions were intentionally created by the
employer for the purpose of inducing the employees resignation or
retirement.) .
EEOC v.Clay Printing Co., 955 F.2d 936, 944 ( 4th Cir. 1992)
( Deliberateness [ for constructive discharge] exists only if the
actions complained of were intended by the employer as an effort
to force the employee to quit. ( quoting Bristow, 770 F.2d at
1255) ) ;
Pena v. Brattleboro Retreat, 702 F.3d 322, 325 ( 2d Cir.
1983) ( A constructive discharge occurs when the employer,
rather than acting directly, deliberately makes an employees
working conditions so intolerable that the employee is forced into
an involuntary resignation.) ;
WbiJbee v. 6orzorelli FooJ Speciolties, lnc., 22S F.Su 62, 74 (2u Cii.
2uuu) (iejecting constiuctive-uischaige claims wheie the employei
"uemonstiateu an inteiest in ietaining the plaintiffs");
Skore v. FxtenJicore heoltb Serv., 4S1 F. Supp. 2u 969, 977 (B. Ninn.
2uu6) (iejecting constiuctive-uischaige claim because employei maue effoit
to convince plaintiff to stay at the company).

Recent Eight h Circuit Cases Requiring Int ent

Trierweiler v. Wells Fargo Bank, 639 F.3d 456; 2011 U.S. App.
LEXIS 7150; 2u11 WL 1S27991 (8th Cir. Apiil 8, 2u11) (No. 1u-1S4S),
affiimeu the giant of summaiy juugment to the Title vII uefenuant. The couit
stateu: "To piove a claim of constiuctive uischaige unuei Title vII,
Tiieiweilei must show that "a ieasonable peison woulu have founu the
conuitions of employment intoleiable anu that |Wells Faigoj eithei intenueu
to foice |heij to iesign oi coulu have ieasonably foieseen that |shej woulu uo
so as a iesult of its actions."

Lisdahl v. Mayo Foundation, 6SS F.Su 712, 19u L.R.R.N. (BNA) 2S2S
(8th Cir. 2u11), affiimeu the giant of summaiy juugment to the 0SERRA
uefenuant. The couit helu at p. *4 that an employei's intention to foice the
employee to quit is an element of a 0SERRA constiuctive uischaige claim. "A
constiuctive uischaige occuis when an employei uelibeiately ienueis an
employee's woiking conuitions intoleiable with the intent of foicing the
employee to leave the employment. . . . A plaintiff can satisfy the intent
iequiiement by uemonstiating that the iesignation was a ieasonably
foieseeable consequence of the employei's actions. Id. The intoleiability of
the woiking conuitions is juugeu by an objective stanuaiu; conuitions aie
consiueieu intoleiable "if a ieasonable employee woulu finu them as such."
Id. The couit helu that theie was no eviuence of anti-militaiy bias, let alone
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eviuence of an intent to foice plaintiff to quit. "The eviuence showeu at best a
peisonality conflict between }ohnson anu Lisuahl. Bowevei, as in Title vII,
'|pjetty slights anu minoi annoyances in the woikplace, as well as
peisonality conflicts anu snubs by co-woikeis, aie not actionable.'" Id. at p.
*S. The couit also iejecteu the aigument that Pennsylvonio Stote Police v.
SuJers, S42 0.S. 129, 124 S.Ct. 2S42, 1S9 L. Eu. 2u 2u4 (2uu4) "limiteu any
Eighth Ciicuit cases iequiiing an intent-to-foiceout in oiuei to piove
constiuctive uischaige" unuei the 0nifoimeu Seivices Employment anu
Reemployment Act of 1994 anu concluuing that "an intent iequiiement is
implicit in the SuJers test."

Elnshar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 1058
( 8
th
Cir. 2007) , affirmed the District Courts grant of summary
judgment to the defendant employer, holding that [ c] onstructive
discharge occurs when an employer deliberately creates intolerable
working conditions with the intention of forcing the employee to
quit and the employee does quit. ( quoting Breeding v. Arthur J .
Gallagher & Co., 165 F.3d 1151, 1159 ( 8
th
Cir. 1999) ) .

Recent Fort h Circuit Cases Requiring Int ent But
Quest ioning t he Requirement

Whitten v. Freds, Inc., 601 F.3d 231; 2010 U.S. App. LEXIS
6740 ( 4
th
Cir. 2010) , reversed the grant of summary judgment on
appellants constructive discharge claim. The court stated: as to
the deliberateness requirement, we have never insisted on smoking
gun evidence of employer intent. Instead, an employer' s intent can
be proved by inference through evidence, for example, showing
that the employer failed to act in the face of known intolerable
conditions, or that the employee' s resignation was the reasonably
foreseeable consequence of the employer' s conduct." ( Internal
quotation marks and citations omitted) . Further, in dicta, the Court
noted the following:

"0ui iequiiement that the plaintiff piove the employei intenueu to foice the
plaintiff to quit is aiguably in some tension with the Supieme Couit's
uecision in Pennsylvonio Stote Police v. SuJers, S42 0.S. 129, 124 S.Ct. 2S42,
1S9 L. Eu. 2u 2u4 (2uu4). In SuJers, the Couit uesciibeu constiuctive
uischaige as "a 'woise case' haiassment scenaiio, haiassment iatcheteu up to
the bieaking point," iJ. at 147-48, anu helu that a constiuctive uischaige
plaintiff must piove that hei woiking conuitions weie "so intoleiable that a
ieasonable peison woulu have felt compelleu to iesign," iJ. at 147. Because
theie is no iequiiement that a plaintiff in a ioutine hostile-enviionment case
show that the employei intenueu to foice hei to quit, it coulu be that, unuei
SuJers, uelibeiateness on the pait of the employei woulu not be iequiieu to
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show the "'woise case' haiassment scenaiio" that is constiuctive uischaige.
We have, howevei, continueu to apply the uelibeiateness iequiiement to
constiuctive uischaige claims since SuJers was ueciueu. We believe that
ciicuit pieceuent thus pievents us fiom consiueiing Whitten's asseition that
uelibeiateness is no longei an element of a constiuctive uischaige claim."

louture v. Soint Aqnes hospitol, No. 1u-11SS (4
th
Cii., Nay 18, 2u11), the
unpublisheu opinion wiitten by Associate }ustice (Retiieu) Sanuia Bay
0'Connoi, sitting by uesignation, anu }uuges King anu Bavis, affiimeu the
Bistiict Couit's giant of summaiy juugment. In uicta, the Couit biiefly
uiscusseu the uecision in Wbitten, stating "In uicta in Wbitten, we noteu that
this ciicuit's uelibeiateness iequiiement is 'aiguably in some tension with
the Supieme Couit's uecision in Pennsylvonio Stote Police v. SuJers, S42 0.S.
129, 124 (2uu4).' Lautuie aigues on that basis that we shoulu no longei
iequiie constiuctive uischaige plaintiffs in hostile woik enviionment
situations to piove that the employei intenueu to foice the employee to quit.
As we noteu in Wbitten, ciicuit pieceuent iequiies the employei intent
showing, anu one panel of the court cannot overrule a prior panel. We
therefore decline Lautures invitation to do away with the intent
requirement. ( Internal citations omitted) .

But see J ohnson v. Shalala, 991 F.2d 126 ( 4
th
Cir. 1993) , reversing
a ruling from the District of Maryland finding that a federal
employer had not reasonably accommodated an employees
handicap under the Rehabilitation Act, and thus has constructively
discharged her. The J ohnson court stated that [ T] he standard for
constructive discharge requires a plaintiff to show both intolerable
working conditions and a deliberate effort by the employer to force
the employee to quit.

Gordon v. Armorgroup, N.A., 2010 U.S. Dist. LEXIS 89035
( E.D.Va. Aug. 27, 2010) , holding that [ t] o establish a constructive
discharge, the plaintiff must show that his employer deliberately
made [ the] working conditions intolerable in an effort to induce
[ the plaintiff] to quit. Matvia v. Bald Head Island Mgmt., Inc., 259
F.3d 261, 272 ( 4th Cir. 2001) ( citation omitted) . Deliberateness
exists only if the actions complained of were intended by the
employer as an effort to force the plaintiff to quit. Taylor v. Va.
Union Univ., 193 F.3d 219, 237 ( 4th Cir. 1999) .

Second Circuit Cases Post -Suders

Nugent v. St. Lukes-Roosevelt Hosp. Ctr., 303 F. Appx 943,
945 ( 2d Cir. 2008) , stating that [ E] ven if [ the plaintiff] is correct
2557
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Copyright 2011, Robert B. Fitzpatrick, Robert B. Fitzpatrick, PLLC, Washington, D.C. All Rights
Reserved

that the Supreme Court has removed the intent element of the
constructive discharge standard, [ she] introduced insufficient
evidence to survive summary judgment.

Theilig v. United Tech Corp., No. 10-1417, 2011 U.S. App. LEXIS
6074, at *6 ( 2d Cir. Mar. 24, 2011) , stating that constructive
discharge occurs when an employer intentionally creates an
intolerable work atmosphere that forces an employee to quit
involuntarily ( quoting Chertkova v. Conn. Gen. Life Ins. Co., 92
F.3d 81, 89 ( 2d Cir. 1996) ) .

Morris v. Schroder Capital Mgmt. Intl, 481 F.3d 86, 88 ( 2d Cir.
2007) , relying on the Second Circuits decision in Pena v.
Brattleboro Retreat, 702 F.3d 322, 325 ( 2d Cir. 1983) to define
constructive discharge and making no reference to Suders.

Cecil v. United States Postal Serv., No. 03-8404, 2004 U.S. Dist.
LEXIS, at *4 ( S.D.N.Y. Aug. 24, 2004) , citing Suders and Second
Circuit decisions for the proposition that a plaintiff claiming
constructive discharge must establish that the employer
deliberately imposed intolerable working conditions in order to force
the employee to retire.

Const ruct ive Discharge Generally

At least forty two state high courts have addressed
constructive discharge, and each recognized constructive discharge
as a viable doctrine. See the following cases:

Baker v. Tremco, Inc., 917 N.E.2d 650, 656 ( Ind. 2009) ;
Wallingsford v. City of Maplewood, 287 S.W.3d 682, 686 ( Mo. 2009) ;
Anderson v. First Century Fed. Credit Union, 738 N.W.2d 40, 47 ( S.D.
2007) ;
Baylor Univ. v. Coley, 221 S.W.3d 599, 605 ( Tex. 2007) ;
Morris v. Schroder Capital Mgmt., Intl, 859 N.E.2d 503, 507 ( N.Y. 2006) ;
Touchard v. La-Z-Boy, Inc., 148 P.3d 945, 954 ( Utah 2006) ;
Rizzitiello v. McDonald' s Corp., 868 A.2d 825, 831 ( Del. 2005) ;
Gormley v. Coca-Cola Enter., 109 P.3d 280, 283 ( N.M. 2005) ;
Wellborn v. Spurwink/Rhode Island, 873 A.2d 884, 891 ( R.I. 2005) ;
Whye v. City Council for City of Topeka, 102 P.3d 384, 386 ( Kan. 2004) ;
Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790,
807-08 ( Ky. 2004) ;
Porter v. City of Manchester, 849 A.2d 103, 117 ( N.H. 2004) ;
Boulton v. CLD Consulting Engrs, Inc., 834 A.2d 37, 42 ( Vt. 2003) ;
Navarre v. South Washington County Sch., 652 N.W.2d 9, 32 ( Minn.
2002) ;
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Copyright 2011, Robert B. Fitzpatrick, Robert B. Fitzpatrick, PLLC, Washington, D.C. All Rights
Reserved

Shepherd v. Hunterdon Dev. Ctr., 803 A.2d 611, 627 ( N.J . 2002) ;
Cothern v. Vickers, Inc., 759 So.2d 1241, 1246 ( Miss. 2000) ;
Balmer v. Hawkeye Steel, 604 N.W.2d 639, 642 ( Iowa 2000) ;
Strozinsky v. School Dist. of Brown Deer, 614 N.W.2d 443, 461 ( Wis.
2000) ;
Collier v. Insignia Fin. Group, 981 P.2d 321, 324 ( Okla. 1999) ;
Martini v. Boeing Co., 971 P.2d 45, 50 ( Wash. 1999) ;
Brittell v. Department of Correction, 247 Conn. 148, 178 ( Conn. 1998) ;
J ewell v. North Big Horn Hosp. Dist., 953 P.2d 135, 140 ( Wyo. 1998) ;
Furukawa v. Honolulu Zoological Soc., 936 P.2d 643, 645 ( Haw. 1997) ;
Champion v. Nationwide Sec., Inc., 450 Mich. 702, 710 ( Mich. 1996) ;
Raintree Health Care Ctr. V. Illinois Human Rts. Commn, 173 Ill.2d 469,
483 ( Ill. 1993) ;
Mauzy v. Kelly Servs., Inc., 664 N.E.2d 1272, 1280-81 ( Ohio 1996) ;
Campbell v. Florida Steel Corp., 919 S.W.2d 26, 34-35 ( Tenn. 1996) ;
GTE Products Corp. v. Stewart, 421 Mass. 22, 34 ( Mass. 1995) ;
J arvenpaa v. Glacier Electric Coop., Inc., 898 P.2d 690, 692 ( Mont.
1995) ;
Martin v. Sears, Roebuck & Co., 899 P.2d 551, 553 ( Nev. 1995) ;
McGanty v. Staudenraus, 901 P.2d 841, 854 ( Or. 1995) ;
Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1030 ( Cal. 1994) ;
Cameron v. Beard, 864 P.2d 538, 547 ( Alaska 1993) ;
Arthur Young & Co. v. Sutherland, 631 A.2d 354, 362 ( D.C. 1993) ;
Irons v. Service Merchan. Co., Inc., 611 So.2d 294, 295 ( Ala. 1992) ;
King v. Bangor Fed. Credit Union, 611 A.2d 80, 81-82 ( Me. 1992) ;
Slack v. Kanawha County Hous. & Redevelopment Auth., 423 S.E.2d. 547,
556 ( W. Va. 1992) ;
O' Dell v. Basabe, 119 Idaho 796, 817 ( Idaho 1991) ;
Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 81 ( N.D.
1991) ;
Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 250 ( Ark. 1988) ;
Wilson v. Board of County Com' rs of Adams County, 703 P.2d 1257,
1259-60 ( Colo. 1985) ;
Sanders v. May Broad. Co., 336 N.W.2d 92, 95 ( Neb. 1983) .

Relat ed Lit erat ure

J ohn A. Berandbaum, Reconstructing Construcive Discharge in
Second Circuit, N.Y.L.J . ( J une 6, 2008) .
Demi Sophocleous, Sexual Harassment Test: Still Murky Despite
Suders, N.Y.L.J . ( Sept. 19, 2007) .
Crystal L. Norrick, Eliminating the Intent Requirement in
Constructive Discharge Cases: Pennsylvania State Police v. Suders,
47 Wm. & Mary L. Rev. 1813 ( 2006) , available at
http://scholarship.law.wm.edu/cgi/viewcontent.cgi? article=1243&c
ontext=wmlr&sei-
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Copyright 2011, Robert B. Fitzpatrick, Robert B. Fitzpatrick, PLLC, Washington, D.C. All Rights
Reserved

redir=1#search=% 22constructive+discharge+intent+requirement%
22.
Stephen F. Befort and Sarah J . Gorajski, When Quitting is Fitting:
The Need for a Reformulated Sexual Harassment/Constructive
Discharge Standard in the Wake of Pennsylvania State Police v.
Suders, 67 Ohio St. L.J . 593, 601 ( 2005) , available at
http://moritzlaw.osu.edu/lawjournal/issues/volume67/number3/be
fort.pdf.
Marcha Chamallas, Title VIIs Midlife Crisis: The Case of
Constructive Discharge, 77 S. Cal. L. Rev. 307, 316 ( 2004) ,
available at http://www-bcf.usc.edu/~usclrev/pdf/077202.pdf, P.
316.
Cathy Shuck, Thats it, I Quit: Returning to First Principles in
Constructive Discharge Doctrine, 23 Berkeley J . Emp. & Lab. L. 401
( 2002) .



2560
ALI-ABA Course oI Study
Current Developments in Employment Law:
The Obama Years at Mid-Term
July 28 - 30, 2011
Santa Fe, New Mexico
6RFLDO)UDPHZRUN([SHUWV
By
Maureen McLoughlin
Davis & Gilbert LLP
New York, New York
2011 Davis & Gilbert LLP.
All Rights Reserved.
2561
2
2562
1
Social Framework Experts 0
Presentation to the American Law Institute -
American Bar Association
SOCIAL FRAMEWORK EXPERTS
July 30, 2011
Maureen McLoughlin
212.468.4910
mmcloughlin@dglaw.com
2011 Davis & Gilbert LLP
Social Framework Experts 1
Uses social science research to provide
context within which to evaluate evidence
about a particular workplace
Usually psychologists, sociologists or
organizational occupational behavioralists
WHAT IS A SOCIAL
FRAMEWORK EXPERT?
2563
2
Social Framework Experts 2
There is a large body of social science work
relating to factors in the workplace that support
or discourage use of stereotypes and biases in
workplace decisions
Social framework expert testimony may show
operation of stereotypes i.e., that certain
behaviors by supervisors consistent with
discrimination, or certain policies/procedures that
allow/foster discrimination
USE IN EMPLOYMENT
DISCRIMINATION LITIGATION
Social Framework Experts 3
USES OF SOCIAL
FRAMEWORK EXPERTS
Individual actions and class actions
Almost always used by plaintiff
Mostly used in sex discrimination cases
In class actions, often used at class certification
stage to show commonality of issues, i.e., that
workplace policies are linked to likelihood of
bias and stereotyping
In individual cases, expert relied upon to
identify policies that allow excessive
subjectivity which permits decisions based on
stereotypes
2564
3
Social Framework Experts 4
STARTED WITH PRICE
WATERHOUSE v. HOPKINS, 490
U.S. 228, 109 S.CT. 1775 (1989)
Supreme Court first considers expert
psychological testimony on stereotyping in
a gender discrimination case
Expert testified about gender stereotyping in
accounting firms partner selection process
and settings in which discrimination typically
occurs
Here - plaintiff was only female in pool of
partner candidates
Social Framework Experts 5
RECENT EXAMPLE
Dukes v. Wal-Mart Stores, Inc.
Social framework expert identifies certain
workplace policies that lead to discrimination --
Excessive subjectivity in promotion and pay
decisions
Failure to posting opportunities
Failure to review promotion and pay patterns
2565
4
Social Framework Experts 6
Scope of testimony
- Conclusion that discrimination did in fact occur
vs. conclusion that policies/procedures could
have fostered discrimination
Methodology
- Did expert thoroughly review the record
Prejudice
- Will testimony confuse the jury on issue of
whether discrimination occurred in a particular
case
FACTORS AFFECTING ADMISSIBILITY
Social Framework Experts 7
COURTS RECURRING CONCERNS
Wary of experts opining on whether discrimination
did in fact occur
More likely to admit if expert opines only as to
whether allegedly discriminatory behavior was
consistent with patterns of discrimination
Less likely to admit if expert seeks to opine on
whether certain statements/behavior were
motivated by discriminatory intent
2566
5
Social Framework Experts 8
Was first and only board-certified female
neurosurgeon at BWH victim of gender
discrimination?
Plaintiff sought to admit testimony of social
framework expert who would opine about BWH
being a workplace in which discrimination typically
occurred which was consistent with observed
patterns of discrimination
Ruling: Admissible expert would not testify about
final decision (whether discrimination had
occurred)
TULI v. BRIGHAM & WOMENS
HOSPITAL, 592 F. SUPP.2D 208
(D. MASS. 2009)
Social Framework Experts 9
Was failure to promote female employee
motivated by gender discrimination?
Plaintiff alleged that she was not promoted
because women who are mothers of young
children are perceived to neglect job duties in
favor of childcare responsibilities
CHADWICK v. WELLPOINT, INC.,
561 F.3D 38 (1ST CIR. 2009)
2567
6
Social Framework Experts 10
CHADWICK v. WELLPOINT, INC.,
561 F.3D 38 (1ST CIR. 2009) (continued)
Trial court: Not admissible expert not competent
to testify about what these supervisors meant by
using certain words (supervisor noted that plaintiff
with kids and school had a lot of her plate)
First Circuit: Affirmed trial court did not repudiate
all sociological expert testimony, but noted that
expert was not sufficiently familiar with facts of
case, no abuse of discretion
Social Framework Experts 11
Teacher filed action against charter school
alleging that her termination was motivated by
gender discrimination
Social framework expert would opine that gender
stereotyping may have been a factor in
termination decision
Ruling: Admissible Employers arguments as to
reliability go to weight of testimony and could be
scrutinized on cross-examination
MERRILL v. M.I.T.C.H. CHARTER
SCH. TIGARD, CIV. 10-219-HA, 2011
WL 1457461 (D. OR. APR. 4, 2011)
2568
7
Social Framework Experts 12
EEOC sought to introduce testimony of social
psychologist who used social framework analysis
to conclude that gender stereotyping was
prevalent at Bloomberg
Specifically, expert concluded that stereotypes
about female employees who are pregnant or
mothers influenced employment decisions at
Bloomberg
Ruling: Not admissible Expert only reviewed
material selected by the EEOC and merely dog-
eared passages from depositions that supported
his conclusions
EEOC v. BLOOMBERG L.P., 07 CIV.
8383 LAP, 2010 WL 3466370
(S.D.N.Y. AUG. 31, 2010)
Social Framework Experts 13
EEOC v. WAL-MART STORES, INC.,
CIVA 6:01-CV-339-KKC, 2010 WL
583681 (E.D. KY. FEB. 16, 2010)
EEOC offered social framework expert to establish
that gender stereotyping was a plausible
explanation for hiring patterns in entry-level
positions
Ruling: Inadmissible irrelevant and unnecessary
2569
8
Social Framework Experts 14
EEOC v. WAL-MART STORES, INC., CIVA
6:01-CV-339-KKC, 2010 WL 583681 (E.D.
KY. FEB. 16, 2010) (continued)
Reasoning
- Court was critical that expert did not go far
enough by merely acknowledging gender
stereo-types that may occur subconsciously
If expert testimony was admitted, the burden
would have improperly shifted to Wal-Mart to
establish that gender discrimination did not occur
Social Framework Experts 15
CLASS ACTIONS
Used to show commonality
Expert typically does not reach conclusions
on specific employment decisions
Expert offers his or her knowledge of social
science research to identify common policies that
foster discrimination in the workplace
2570
9
Social Framework Experts 16
Largest class action discrimination case in
U.S. history
Plaintiffs asserted both disparate impact and
disparate treatment claims, alleging that Wal-
Marts policies and practices allowed stereotyping
and bias to infect decisionmaking processes that
affected women throughout the company
District Court certified class of 1.5 million women
who had been or were employed by Wal-Mart,
Ninth Circuit affirmed, Supreme Court reversed on
June 20, 2011
DUKES v. WAL-MART STORES, INC.,
Social Framework Experts 17
DUKES v. WAL-MART STORES,
INC., No. 10-277, slip op. (U.S. 2011)
5-4 decision by Justice Scalia with Roberts,
Kennedy, Thomas, Alito in majority, and Ginsberg,
Breyer, Sotomayor and Kagan concurring in part
and dissenting in part
Majority -- class did not meet commonality
requirements because plaintiffs failed to show that
Wal-Mart used a universal evaluation procedure or
operated under a general policy of discrimination
2571
10
Social Framework Experts 18
SOCIAL FRAMEWORK EXPERT
TESTIMONY IN DUKES
Plaintiffs had offered expert Dr. Bielby, a
sociologist, to explain facts suggesting that Wal-
Mart has and promotes a corporate culture that
make pay and promotion decisions vulnerable to
gender bias
Ninth Circuit ruled that Dr. Bielbys opinions, for
which Wal-Mart did not challenge the methodology,
raised a question of corporate uniformity and
gender stereotyping that is common to all class
members.
Social Framework Experts 19
SOCIAL FRAMEWORK EXPERT
TESTIMONY IN DUKES (continued)
Supreme Court disagreed. It found that Dr.
Bielbys opinion failed to show a general policy of
discrimination because he could not calculate
whether 0.5 or 95 percent of the employment
decisions at Wal-Mart might be determined by
stereotyped thinking. If Dr. Bielby has no answer
to that question, we can safely disregard what he
has to say.
Minority concurring and dissenting opinion did not
address use of social framework expert testimony
2572
11
Social Framework Experts 20
SOCIAL FRAMEWORK EXPERT
TESTIMONY IN DUKES (continued)
Supreme Courts skepticism of social framework
expert testimony in Dukes casts doubt on future
use of such experts in class actions
Court did not rule on whether Daubert standard
should be applied at class certification stage, but
noted that it doubt[ed] District Courts conclusion
that Daubert did not apply at class certification
stage
Social Framework Experts 21
SERRANO v. CINTAS CORP., CIV.
04-40132, 2009 WL 910702 (E.D. MICH.
MAR. 31, 2009)
Plaintiffs sought to certify class of female and
African-American and Hispanic job applicants
alleging class-wide sex and race discrimination
Trial court skeptical of the scientific reliability of
expert report
Experts observations that people tend to have
personal biases is entirely insufficient to support
the claim that, in this particular case, Cintas
managers acted on their biases and discriminated
against women and racial minorities.
2573
12
Social Framework Experts 22
PUFFER v. ALLSTATE INS. CO.,
255 F.R.D. 450 (N.D. ILL. 2009)
Female employee brought putative class action
alleging that Allstate had nationwide pattern or
practice of sex discrimination
Plaintiffs expert opined that Allstate's policies
allowed bias in performance appraisals because
senior managers have great discretion
in employee assignments and judging
performance
Social Framework Experts 23
PUFFER v. ALLSTATE INS. CO.,
255 F.R.D. 450 (N.D. ILL. 2009) (continued)
Plaintiffs expert conceded that evaluations are not
applied consistently between regions or between
supervisors, and that their assessments of
employees are not comparable
Ruling: No commonality -- [E]ven if one
supervisor used Allstate's subjective employment
practices as a mask for discrimination, that does
not inexorably lead to the conclusion that any
other supervisors did so.
2574
13
Social Framework Experts 24
QUESTIONS?
Maureen McLoughlin
Partner
212.468.4910
mmcloughlin@dglaw.com
2575
2
2576
ALI-ABA Course oI Study
Current Developments in Employment Law:
The Obama Years at Mid-Term
July 28 - 30, 2011
Santa Fe, New Mexico
Maximizing and Minimizing Damages Claims
By
Maureen McLoughlin
Davis & Gilbert LLP
New York, New York
2011 Davis & Gilbert LLP.
All Rights Reserved.
2577
2
2578
1
Maximizing and Minimizing Damages Claims Pre-Trial and at Trial 0
Presentation to the American Law Institute -
American Bar Association
MAXIMIZING AND MINIMIZING
DAMAGES CLAIMS
July 29, 2011
Maureen McLoughlin
212.468.4970
mmcloughlin@dglaw.com
2011 Davis & Gilbert LLP
Maximizing and Minimizing Damages Claims Pre-Trial and at Trial 1
NEGOTIATIONS - MINIMIZING DAMAGES
Strong Documents that address
- Bonus
- Notice/Severance
- Non-Compete
- Venue/Applicable Law/Arbitration
2579
2
Maximizing and Minimizing Damages Claims Pre-Trial and at Trial 2
NEGOTIATIONS - MINIMIZING DAMAGES
(continued)
Discuss Specifics
- Dont Stop at In-House Counsel
- Anticipate Arguments and Test Witnesses
- Early Email Searching Often Yields Admissions
Maximizing and Minimizing Damages Claims Pre-Trial and at Trial 3
NEGOTIATIONS - MINIMIZING DAMAGES
(continued)
Provide Draft Agreement
- Avoids needless delay
- Pre-empts discussions that could otherwise re-
open negotiations on settlement amount, e.g.,
taxes
- Dont stand on ceremony
2580
3
Maximizing and Minimizing Damages Claims Pre-Trial and at Trial 4
NEGOTIATIONS - MAXIMIZING DAMAGES
Emphasize Subjective Factors
- Length of service
- Circumstances of termination
- Culture
- Comparitors
Maximizing and Minimizing Damages Claims Pre-Trial and at Trial 5
NEGOTIATIONS - MAXIMIZING DAMAGES
(continued)
Dont Oversell Your Case
- Risk of inciting decision-makers and peers
- Lose credibility
- It doesnt work
2581
4
Maximizing and Minimizing Damages Claims Pre-Trial and at Trial 6
AT TRIAL
Mitigation
- Employers Burden
- What is reasonable?
- Scrutinize online job search techniques
Anticipate arguments regarding how recession
contributed to an extended period of
unemployment in support of front pay
Be aware of Company-issued statements after a
RIF
Maximizing and Minimizing Damages Claims Pre-Trial and at Trial 7
RECENT CASES DAMAGES ISSUES
Online Job Search
- Plaintiff failed to mitigate where testimony that she
searched for work online was not supported by evidence
from job search website
Smith v. JP Morgan Chase, No. 09-0168, 2011 WL
841439 (W.D. La. Mar. 8, 2011
- Mitigation considered in light of plaintiffs specific
characteristics and the job market. Plaintiffs failure to
use internet and failure to post resume was not
unreasonable given her limited computer skills
Cassella v. Mineral Park, Inc., No. 08-01196, 2010 WL
454992 (D. Ariz. Feb. 9, 2010)
2582
5
Maximizing and Minimizing Damages Claims Pre-Trial and at Trial 8
RECENT CASES DAMAGES ISSUES
(continued)
Back Pay and Front Pay
- Plaintiffs efforts to mitigate were reasonable,
despite long period of unemployment, given
local economy and job market. However,
plaintiff was not entitled to front pay given the
high turnover rate in her field and the fact that
her line of work was predicted to grow in the
future
Garner v. Grenadier Lounge, No. 06-13318,
2008 WL 2761158 (E.D. Mich. July 15, 2008)
Maximizing and Minimizing Damages Claims Pre-Trial and at Trial 9
RECENT CASES DAMAGES ISSUES
(continued)
Emotional Distress
- Award of $300,000 -- not excessive -- in light of plaintiffs
long employment and her difficult personal
circumstances
McInerney v. United Air Lines, Inc., Nos. 09-1423, 09-
1425, 2011 WL 1350453 (10th Cir. Apr. 11, 2011)
- Award reduced from $200,000 to $30,000 -- no lasting
physical and emotional effects
Schandelmeier-Bartels v. Chicago Park Dist., 634
F.3d 372 (7th Cir. 2011)
2583
6
Maximizing and Minimizing Damages Claims Pre-Trial and at Trial 10
QUESTIONS?
Maureen McLoughlin
Partner
212.468.4910
mmcloughlin@dglaw.com
2584

Maureen McLoughlin
Partner, Labor & Employment
212.468.4910
mmcloughlin@dglaw.com
RECENT DECISIONS ON DAMAGES IN EMPLOYMENT CASES


Mitigation of Damages

Plaintiff did not exercise reasonable diligence to obtain new employment where her
testimony that she searched for employment online was not supported by evidence from
job search website.

Smith v. JP Morgan Chase, No. 09-0168, 2011 WL 841439 (W.D. La. Mar. 8, 2011)
In suit alleging disability discrimination, the defendant moved for summary
judgment on the issue of the plaintiffs entitlement to back pay and front pay after a
certain time period. Finding no genuine issue of fact that the plaintiff failed to satisfy her
duty to mitigate damages, the district court granted the defendants motion. The court
noted that while the plaintiff testified that she was signed up for Career Builders, an
online job search site, she failed to demonstrate that she applied to any jobs on the site.
The court also noted an e-mail that was sent to the plaintiff from Career Builders
indicating that she had not logged into the website for a substantial period of time.

Mitigation efforts had to be considered in light of plaintiffs specific characteristics and
the job market; plaintiffs failure to search the internet for jobs or post resume online was
not unreasonable given her limited computer skills.

Cassella v. Mineral Park, Inc., No. 08-01196, 2010 WL 454992 (D. Ariz. Feb. 9, 2010)
In race and gender discrimination suit, the defendant moved for partial summary
judgment on the issue of whether the plaintiff fulfilled her duty to mitigate damages. The
plaintiff, who was employed at a mine in a position involving the operation of heavy
machinery, searched for employment for six months following her termination. She
subsequently entered a different line of work. In considering the defendants argument
that the plaintiff failed to consider hundreds of job opportunities, the district court held
that the defendant did not meet its burden on this issue because it failed to demonstrate
which of the job opportunities were substantially equivalent to plaintiffs job.
The defendant also argued that the plaintiff failed to use reasonable diligence in
her job search because she did not search classified ads or jobs on the internet and did
not post her resume online. In rejecting this argument, the district court noted that while
using the internet and newspaper may have helped the plaintiffs search, the standard is
reasonable, not maximum, diligence. The court observed that the plaintiff may not have
possessed the skills necessary to utilize the internet in her job search.

Subpoenas seeking information concerning plaintiffs efforts to mitigate damages,
including subpoenas directed to local library, plaintiffs current employer, and job search
websites, were overbroad.

Hunsaker v. Proctor & Gamble Mfg. Co., 09-2666, 2010 WL 5463244 (D. Kan. Dec. 29,
2010)
Defendant in age and disability discrimination suit moved for leave to serve
subpoenas on local library where the plaintiff used computers to search for jobs online,
website providers through which the plaintiff sought employment, and his current
employer. The subpoena directed to the library sought information concerning all
websites that the plaintiff visited on the librarys computers. In denying defendants
2585

2
motion concerning the library subpoena, the district court reasoned that, even if the
subpoena was more limited in scope, the information sought by the defendant in order to
refute plaintiffs efforts to mitigate damages was outweighed by the burden and expense
of responding to the subpoena. The court noted that the plaintiff had already provided
documents and testimony concerning his job search and that the information sought by
the subpoena could encroach upon private communications.
The court also denied defendants motion with respect to the subpoena directed
to plaintiffs employer, which sought, among other information, performance evaluations,
attendance records, documents concerning discrimination complaints and available
positions. The court reasoned that the only relevant matter sought by the subpoena
was payroll and benefits information, which the plaintiff agreed to provide. In addition,
the court observed that the risk of the subpoena being used as a tool to harass Plaintiff
in his current job, along with the risk of harming his relationship with his employer
outweighs any need for Defendant to obtain further confirmation of the payroll and
benefits information.
As for the subpoenas directed to job search sites such as Career Builder and
Monster, the court held that the defendant could serve them on the condition that it
remove the subpoenas broad definition of the word document or record.

Plaintiff was not entitled to front pay given her failure to proffer evidence necessary to
calculate it and limited efforts to find employment.

McInerney v. United Air Lines, Inc., Nos. 09-1423, 09-1425, 2011 WL 1350453 (10th Cir.
Apr. 11, 2011)
Former ramp supervisor for United Airlines filed suit against the airline, alleging
that United discriminated and retaliated against her by denying her an unpaid leave of
absence and terminating her employment. Following a jury verdict in the plaintiffs favor,
the district court awarded back pay but denied front pay. The Tenth Circuit affirmed the
district courts denial of a front pay award, holding that the plaintiff did not adequately
calculate front pay. The Court observed that the plaintiff failed to include evidence in the
record addressing her life expectancy, continued employment term with United, and a
viable discount rate to support a calculable front pay amount. In addition, the Tenth
Circuit noted that the plaintiff did not adequately attempt to find comparable employment
because she documented only two attempts to find jobs with other airlines and accepted
a position at a lower pay than her position with the defendant.

Plaintiffs efforts to mitigate her back pay damages were reasonable despite long period
of unemployment given poor state of local economy and job market, but plaintiff was not
entitled to front pay.

Garner v. Grenadier Lounge, No. 06-13318, 2008 WL 2761158 (E.D. Mich. July 15,
2008)
Following evidentiary hearing on damages in pregnancy discrimination case
brought by plaintiff who was employed as a waitress and bartender, the district court
found that the defendants did not meet their burden of showing that the plaintiff failed to
mitigate her damages. The court noted the plaintiffs testimony that she tried to find
work through job fairs, internet postings and walking, driving and looking for work. The
court also observed that it was not surprising that the plaintiff was unable to find a job
given that the local economy had gotten progressively more dismal in the years
following her termination, and issued a back pay award representing 42 months from her
termination to the date of judgment.
2586

3
The court declined to award front pay, however, noting that while the plaintiff met
her duty to mitigate with regard to back pay, there came a point where regardless of the
state of the economy and job market, the plaintiff could reasonably expect to find
employment given the high turnover rate in her field and the fact that her line of work
was predicted to grow in the future.

Emotional Distress Damages

Emotional distress damages award of $300,000 was not excessive in light of plaintiffs
long employment and her difficult personal circumstances.

McInerney v. United Air Lines, Inc., Nos. 09-1423, 09-1425, 2011 WL 1350453 (10th Cir.
Apr. 11, 2011)
Former ramp supervisor for United Airlines filed suit against the airline, alleging
that United discriminated and retaliated against her by denying her an unpaid leave of
absence and terminating her employment. The jury awarded the plaintiff $3,000,000 in
emotional distress damages, which the district court reduced to the statutory maximum
under Title VII of $300,000.
On appeal, United argued that it was entitled to a new trial on damages because
the jurys emotional distress award was excessive in light of other comparable jury
verdicts. In affirming the district courts denial of Uniteds motion, the Tenth Circuit held
that the emotional distress award was appropriate given the plaintiffs eleven-year career
at United, the stressful impact of the termination on her personal life, and the context of
Uniteds retaliatory behavior.

Emotional distress damages award of $100,000 was reasonable given plaintiffs
testimony about the emotional and physical effects of her termination

Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18 (1st Cir. 2010)
Government employee brought a suit against a supervisory employee of public
corporation in Puerto Rico, alleging that the defendant failed to appoint her to a
permanent position in retaliation for her protected speech under the First Amendment.
The jury awarded plaintiff $100,000 for pain and suffering. Finding the $100,000 award
supported by the evidence, the First Circuit noted that that the plaintiff testified that she
suffered from so much stress that she was unable to sleep, that her relationships with
friends and extended family suffered, and that she eventually had to seek the help of a
psychologist.

Emotional distress damages award reduced from $200,000 to $30,000 based on
absence of lasting physical and emotional effects resulting from violations

Schandelmeier-Bartels v. Chicago Park Dist., 634 F.3d 372 (7th Cir. 2011)
Former employee of Chicago Park District filed race discrimination claim arising
from termination and verbal tirades that her supervisor directed against her. The jury
awarded the plaintiff $200,000 in compensatory damages, and the defendant moved for
a new trial on the ground that the jury award was excessive. In remanding the case to
the district court with instruction to enter a reduced judgment of $30,000, the Seventh
Circuit observed that the verbal abuse directed at the plaintiff, while offensive and
disturbing to her, was isolated. The Court noted that the plaintiff did not testify to any
lasting physical or emotional effects resulting from the incidents or the termination and
that she found another job ten days later. In addition, the Court noted that in other cases
2587

4
where large compensatory damages awards were upheld on appeal, the awards were
supported with first- and third-person testimony regarding ongoing emotional and
physical effects of the discrimination suffered by the plaintiffs.

Punitive Damages

Plaintiff could not appeal reduced punitive damages award after consenting to reduction
without the option for a new trial.

Thomas v. iStar Financial, Inc., 629 F.3d 276 (2d Cir. 2010)
Former employee brought suit against financial services company and
supervisor, alleging that he was subjected to race discrimination and retaliated against
for complaints he made about supervisor. The jury awarded $1.6 million in punitive
damages against the corporate defendant. Finding the punitive damages award to be
unconstitutional, the district court conditionally granted the defendants motion for a new
trial unless the plaintiff would agree to remit his award to $190,000. After agreeing by
requesting that the district court issue an order reducing the award without option for a
new trial, the plaintiff appealed the district courts decision. On appeal, the Second
Circuit held that the plaintiffs petition to the district court to order a reduction in damages
without the possibility of a new trial was identical to the acceptance of a remittitur and
was not appealable.
The plaintiff also argued that the district court should have calculated
prejudgment interest on his compensatory damages based on the higher New York state
interest rate rather than the lower federal interest rate. The Second Circuit held that in
cases where judgments are based on both state and federal law, where no distinction is
drawn among claims, the applicable interest rate is the federal rate.

Punitive damages award of $1,000,000 against individual defendant was excessive
where retaliation was related to isolated incident.

Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18 (1st Cir. 2010)
Government employee brought a suit against a supervisory employee of public
corporation in Puerto Rico, alleging that the defendant failed to appoint her to permanent
position in retaliation for her protected speech under the First Amendment. The jury
awarded plaintiff $1,000,000 in punitive damages. In reducing the award to $500,000,
the First Circuit held that a $1,000,000 award against an individual defendant based on
retaliation arising from an isolated incident was excessive. The Court also noted that the
original award was likely based on two claims, one of which was unsupported by the
evidence.

2588
ALI-ABA Course oI Study
Current Developments in Employment Law:
The Obama Years at Mid-Term
July 28 - 30, 2011
Santa Fe, New Mexico
EEOC Awards of Emotional Distress Damages Exceeding $100,000.00
By
Joshua F. Bowers
Joshua F. Bowers, P.C.
Silver Spring, Maryland
Submitted by
Robert B. Fitzpatrick
Robert B. Fitzpatrick, PLLC
Washington, D.C.
2589
2
2590

DISCLAIMER OF ALL LIABILITY AND
RESPONSIBILITY

THE INFORMATION CONTAINED HEREIN IS BASED
UPON SOURCES BELIEVED TO BE ACCURATE AND
RELIABLE INCLUDING SECONDARY SOURCES.
DILIGENT EFFORT WAS MADE TO ENSURE THE
ACCURACY OF THESE MATERIALS, BUT THE
AUTHOR ASSUMES NO RESPONSIBILITY FOR ANY
READERS RELIANCE ON THEM AND ENCOURAGES
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USING TRADITIONAL LEGAL RESEARCH
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2591
BECOME OUTDATED. IN NO EVENT WILL THE
AUTHOR BE LIABLE FOR ANY DIRECT, INDIRECT,
CONSEQUENTIAL, OR OTHER DAMAGES RESULTING
FROM AND/OR RELATED TO THE USE OF THIS
MATERIAL.
2592

The Federal Empl oyee
Advocate
( Updat ed April 4, 2011)
EEOC Awards of Emot ional
Dist ress Damages Exceeding
$100, 000. 00
By J osh Bowers
1

This is the first of two articles discussing awards of over $100,000
for emotional distress injuries suffered because of wrongful
discrimination. Todays article will discuss emotional distress
awards by the Equal Employment Opportunity Commission in cases
filed by employees of the Federal government. The second article
will discuss court decisions awarding more than $100,000.

In 1991, the Civil Rights Act was amended to provide victims of
discrimination with compensation for emotional distress. Since that
time, Federal employees and Federal Agencies have struggled in
settlement negotiations to determine what is reasonable
compensation for emotional distress. When the parties can not
agree, either an Administrative J udge of the EEOC or a jury will
solve the dispute with an award for emotional distress
compensation. We now have a body of EEOC and court decisions
awarding emotional distress compensation that allows us to better
predict the emotional distress award if a case is not settled and
goes to trial.

The EEOC instructs that there is no precise formula for
determining the amount of damages for non-pecuniary losses,
except that the award should reflect the nature and severity of the
harm and the duration or expected duration of the harm.
Chast ain v. U. S. Depart ment of t he Navy, EEOC Appeal No.
0120102409 ( November 17, 2010) request for reconsideration
denied, EEOC Request No. 0520110240 ( March 31, 2011) . The
more inherently degrading of humiliating the agencys action is, the
more reasonable it is to infer that a person would suffer humiliation
or distress from that action. Lopez-Rosende v. U. S. Post al
Service, EEOC Appeal No. 0120102789 ( November 30, 2010) .
The Commission instructs that not all harms are amenable to a
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2
precise quantification, the burden of limiting the remedy, however,
rests with the employer. Id. citing Chow v. Depart ment of t he
Army, EEOC Appeal No. 01982308 ( Feb. 12, 2001) . The
Commissions approach to determining emotional distress
compensation is understood by carefully reading the many EEOC
decisions applying this formula to the facts of individual cases.

Munno v. Depart ment of Agricult ure, EEOC Appeal No.
01A01734 ( February 8, 2001) ( $250, 000 for emotional distress
damages) . The Commission increased an award of $150,000 in
emotional distress damages to $250,000 based on the
Complainants serious psychological and emotional injuries that
required treatment for an indefinite period. The Complainant was a
manager whose ongoing emotional injury was extreme, but who was
capable of performing her duties and qualified for promotion to a
senior management position.

Linehan v. Marion Count y Coroner' s Office, EEOC Appeal No.
1120080001 ( August 24, 2009) ( $200, 000 for emotional
distress damages) Award based on the emotional distress
Complainant suffered from being demoted and fired, and from
having his name besmirched in the press, all of which resulted in
months of treatment and counseling. Complainant did not submit
medical records in support of the emotional distress claim.

Fonda-Wall v. Depart ment of J ust ice, EEOC Appeal No.
0720060035 ( J uly 29, 2009) ( The Commission modified an
Administrative J udges award of non-pecuniary compensatory
damages from $150,000 to $200, 000) . Complainant was in
constant fear of the supervisors retaliatory acts. The rumors about
her mental health were detrimental to her reputation. The
Agencys actions caused her to be transferred and suffer in her
family and financial life. Complainants emotional harm manifested
itself into physical harm over a period of 8 years. In addition to the
$200, 000 emotional distress award, Commission awarded
pecuniary damages for wear and tear on Complainant' s vehicle in
the amount of $ 8,859.16; trailer rental and storage costs in the
amount of $ 3,484.19; moving expenses in the amount of $
1,136.00; lodging costs in the amount of $ 244.08; lost profit on
the sale of Complainant' s home in the amount of $65,600.00;
tutoring costs for Complainant' s children due to readjustment after
being involuntarily moved twice in the amount of $ 32,000.00;
attorney' s fees incurred for child custody issues arising from
Complainant taking children out of state in the amount of $
3,000.00; cell phone costs in the amount of $ 4,628.59; fees paid
2594
3
to a special advocate for Complainant' s children in the amount of $
5,000.00; plane fare for children to visit their father in her former
work location in the amount of $1,289.00; office supply costs in
connection with this complaint in the amount of $3,000.00; and
past and future psychological care for Complainant' s children' s
separation anxiety from their father and stepfather in the amount
of $12,996.60.

Blount v. Depart ment of Homeland Securit y, EEOC Appeal
No. 0720070010 ( October 21, 2009) , request for reconsideration
denied EEOC Request No. 0520100148 ( April 16,
2010) ( $200, 000 for emotional distress damages) Complainant
testified that due to the loss of his job, his ex-wife sued for
custody of his children, and he was unable to satisfy his child and
spousal support obligations. Complainant stated that the agencys
actions brought him to the brink of financial ruin.

Glockner v. Depart ment of Vet eran s Affairs, EEOC Appeal
No. 07A30105 ( Sept. 23, 2004) ( $200, 000 for emotional
distress damages.) The Complainant was harassed at work for
nearly five years and diagnosed as suffering depression, anxiety,
exhaustion, migraine headaches, irritable bowel syndrome and other
gastrointestinal disorder. Complainant did not take medication for
depression, but demonstrated depression through testimony.

Sebek v. At t orney General, EEOC Appeal No. 07A00005 ( March
8, 2001) ( $200, 000 emotional distress damages) The
Administrative J udges award of $200, 000 was upheld by the
Commission because the agency failed to provide the Commission
the evidentiary record that was before the EEOC Administrative
J udge.

St iehl v. Post mast er General. , EEOC Case No. 150-2004-
00433X ( Administrative J udge Decision, Miami District Office, Sept.
12, 2008) ( $200, 000 for emotional distress damages)
Complainant suffered PTSD, major depression, anxiety, inability to
work, anger, hypertension, nightmares, sexual dysfunction, changed
his relationships with his family and suffered loss of self worth.
Complainant was unable to function in the same manner as he could
before the harassment and despite medication and counseling, he
had not been cured or significantly improved.

Looney v. Depart ment of Homeland Securit y, EEOC Appeal
No. 07A40124, 01A53252 ( May 19, 2005) , ( $195, 000 for
emotional distress damages.) Length of hostile work environment
2595
4
not stated in EEOC decision, but appears to have been less than
two years. Administrative J udge concluded Complainant suffered
permanent emotional injury based only on Complainant and her
husbands testimony. Complainant suffered bouts of crying;
humiliation; depression; destruction of her spirit and confidence;
feelings as if she had no purpose in life; fluctuating weight
problems; rashes; anxiety; nightmares relating to her supervisor;
difficulty coping with life; being tense and unable to sleep when she
lays next to her husband in bed; and was disinterested in sexual
intercourse. As a result of medication taken for the emotional
distress, complainant felt clumsy, shaky, considered herself to be
unsafe operating a motor vehicle, and a nervous wreck.
Complainant' s husband testified that complainant was extremely
stressed, experienced mood swings, became sick more often,
kicked the bed while sleeping, and was exhausted to the point were
she remained in bed for twenty hours during the day. He testified
that complainant is unable to deal with any negativity and is
extremely self conscious about her communication skills, interaction
with others, and loss of professional reputation and standing in the
community. Complainant' s friends testified to complainant' s
change in appearance, including significant aging in short amount of
time, facial appearance being swollen and sunken, and complainant
becoming withdrawn. Complainant' s psychologist testified that
complainant suffered from a significant amount of depression.

Mack v. Depart ment of Vet erans Affairs EEOC Appeal No.
01983217 ( J une 23, 2000) request for reconsideration denied,
EEOC Request No. 05A01058 ( October 26, 2000) ( $185, 000 for
emotional distress damages) . Complainant unable to work for
years to come. Complainant left homeless after being fired based
on his development of AIDS. The emotional distress evidence in the
Commissions decision is not especially severe, but the
consequences of being left homeless were quite severe. [ note: The
Commissions decision may indicate the employee failed to submit
significant evidence of emotional distress at the hearing.
Otherwise, it is difficult to understand why being left homeless with
a terminal illness did not result in an emotional distress award at
the statutory ceiling of $300,000.]

Cahn v. Unit ed St at es Post al Services, EEOC Appeal No.
0720060029 ( September 5, 2008) ( $175, 000 for emotional
distress damages) . The Agencys discrimination exacerbated the
Complainants PTSD and he suffered significant emotional distress
over a three year period. Complainant had insomnia, migraines,
decrease in his ability to concentrate, think, focus or recall
2596
5
information, extreme stress and inability to complete projects or
organize. He became secluded due to heightened anxiety and was
separated from his wife. The damages were supported by the
Complainants testimony, written documentation from his wife, co-
workers testimony and medical documentation.

Lopez-Rosende v. U. S. Post al Service, EEOC Appeal No.
0120102789 ( November 30, 2010) ( EEOC increased an
Administrative J udges award of $35,000 for emotional distress to
$150, 000) . Complainant suffered seven years of sexual
harassment and did not submit medical evidence in support of her
emotional distress claim. Testimony demonstrated the harassment
made it difficult for complainant to sleep, made her depressed,
resulted in nightmares, and caused her to scream and yell at her
children. Complainant experienced chest pains, sought counseling
with an Agency psychologist, went to a physician who prescribed
medication for anxiety. Complainant was constantly worried the
sexual harasser would come to her work area.

Solomon v. Depart ment of t he Navy, EEOC Appeal No.
0720070071 ( March 3, 2008) ( $150, 000 for emotional distress
damages) . The Complainants disposition changed, she lost her
self-confidence, withdrew from friends and felt her reputation had
been soiled. She returned from work crying, upset and appearing
depressed. She had migraines and sleeplessness. Complainants
Psychiatrist testified that she had depression and anxiety. The
discriminatory harassment occurred over approximately one year.

Tyner v. Dept. of Veterans Af f airs, EEOC A ppeal No. 0720060032
(October 23, 2007)($150,000 for emotional distress damages). Sexual
harassment over seven months with crude sexual language by a co-worker
and supervisor. Complainant suffered difficulty sleeping, nightmares and
panic attacks; aggravation of pre-existing psychological injury due to
observing sexual abuse of a sibling by a family member; diagnosis of a
major depressive disorder, post-traumatic stress disorder and agoraphobia
(fear of leaving home), panic attacks, problems with her appetite, feeling
sad and tearful, problems with memory comprehension and thinking clearly,
and problems with self-esteem and self-confidence. Complainant became
withdrawn and was spending most of the day in bed during her visits to her
parent's home. Complainant awarded restoration of 273 hours of sick
leave, 31.75 hours of annual leave and three hours of compensatory time.

Furch v. Depart ment of Agricult ure, EEOC Appeal No.
07A40094 ( 2005) ( $150, 000 for emotional distress) . The
employee saw a psychologist for 6-8 months, and continued to see
a Licensed Social Worker through the agency' s Employee
Assistance Program. At the hearing, the employee testified she
suffered from weekly crying spells, saw no relief in sight and was
2597
6
withdrawn socially from friends and family. The employees
daughter and co-workers corroborated complainant' s testimony and
reported complainant suffered from stomach problems, anxiety,
and is no longer the outgoing person she once was. The employee
submitted medical records from her physician, psychologist, and
psychiatrist, stating a diagnosis of Generalized Anxiety Disorder.

Kloock v. Post mast er General, 01A31159 ( 2004) ( $150, 000
for emotional distress damages) . An agency' s discriminatory
removal of complainant resulted in him having to withdraw support
of his son' s ambitions to become a professional hockey player and
the complainant ultimately told his son to leave home. Complainant
submitted evidence of nonpecuniary damages through his
affidavit, as well as affidavits from a friend and his son.
Complainant provided several psychological reports. Prior to May
1994, complainant was a stable, welladjusted and relatively happy
individual. Complainant described his relationship with his son
before May 1994 as exceptional and had good friendships and a
rewarding life. J ust prior to May 1994, complainant was in the
process of buying a new home and had been preapproved for a
mortgage. Prior to May 1994, complainant had been very active
with his union and the local youth hockey community.)

Est at e of Nason v. Post mast er General, EEOC Appeal No.
01A01563 ( 2001) ( $150, 000 for emotional distress damages) .
Complainant, after two suicide attempts, successfully committed
suicide and left behind a note that blamed the Post Office for " all
the stress that they have caused me leading to this action. The
Commission explained its decision in Estate of Nason, stating: " a
tortfeasor takes its victims as it finds them." Citing Wallis v. United
States Postal Service, EEOC Appeal No. 01950510 ( November 13,
1995) ( quoting Williamson v. Handy Button Machine Co., 817 F.2d
1290, 1295 ( 7th Cir. 1987) .

Franklin v. Unit ed St at es Post al Service, EEOC Appeal No.
07A00025; 01A03882 ( J anuary 19, 2001) ( $150, 000 for
emotional distress damages) . Complainants whole world had been
built around this job. Once complainant forced into disability
retirement, he became withdrawn, gloomy, purposeless and
depressed. He was unable to find comparable work and became
estranged from his wife and children and moved into a different
part of the house.

Booker v. Depart ment of Defense, EEOC Appeal No.
07A00023 ( August 10, 2000) ( $150, 000 for emotional distress
2598
7
damages) Complainant suffered severe depression, the duration of
emotional distress was not put into evidence so the Administrate
J udges award of $195,000 was reduced to $150,000 based on
the complainants three suicide attempts and voluntary
hospitalization.

Fellows-Gilder v. Depart ment of Homeland Securit y, EEOC
Appeal No. 0720070046 ( J anuary 31, 2008) . ($130, 000 for
emotional distress damages) . Complainant suffered from a pre-
existing condition, of anxiety and depression was significantly
exacerbated by the discrimination. Complainant began to cut
herself, which she had not done before, and was admitted to a
psychiatric hospital under a suicide watch. After the discrimination,
complainant sought public assistance for the first time in her life,
and lost her health insurance, which had been her link to a support
network that provided her with funding for prescription medication
and therapy.

Terban v. Depart ment of Energy, EEOC Appeal No.
0720040117 ( April 3, 2008) . ( $130, 000 for emotional distress
damages) . Complainant endured two years of harassment which
resulted in complainants hospitalization, his becoming suicidal, and
his receiving electro-shock treatment. As a result of the
harassment, complainant became depressed and withdrawn and his
relations with his children became severely strained.

Burt on v. Depart ment of Int erior, EEOC Appeal No.
0720050066 ( March 6, 2007) ( $130, 000 for emotional distress
damages) . Complainant was out of work for three years.
Complainant suffered from depression, loss of enjoyment of life,
interference with family relationships, permanent diminishment in
quality of life, and physical symptoms. She suffered anxiety,
depression, humiliation, sleep deprivation and began a medication
regimen, which included Prozac and Paxil. Complainant saw no
relief in sight, thought about suicide, and had withdrawn socially
from friends and family. Complainant' s husband testified the
complainant suffered from anxiety, depression, and was no longer
the outgoing person she had been. Complainant submitted medical
records from her physicians, and noted that she had been
diagnosed with post traumatic stress disorder, major depression
disorder, non-epileptic seizures, panic attacks and memory loss.
Complainant suffered migraines, stomach problems, nervousness,
trembling, emotional issues and contemplated suicide.

Cook v. Post mast er General, EEOC Appeal No. 01950027
2599
8
( 1998) ( $130, 000 awarded for emotional distress damages)
Complainant disabled from future employment. The Commission
awarded $80,000 in damages for daily harassment that lasted
about 14 months and sporadic incidents of harassment that
occurred over the next 14 months. The Commission also awarded
$50,000 in emotional distress damages caused by the
complainant' s future inability to work. The Commission considered
that the complainant prolonged her recovery by failing to take
prescribed medication. The award was tempered by the fact that
more than half of the total period of harassment33 months
occurred before the effective date of the 1991 Civil Rights Act.

Champion v. Unit ed St at es Post al Service, EEOC Appeal No.
0720090037 ( March 10, 2010) . ( $125, 000 awarded for
emotional distress) Complainant was subjected to harassment for
over two years. Complainant needed medication to sleep, had
nightmares, was uninterested in things she used to do, and
experienced severe stress. Complainant was prescribed several
medications, was under the care of a psychiatrist and a
psychologist, and was placed off work. She was diagnosed with
major depressive disorder, anxiety disorder, and panic disorder.

Davis v. Depart ment of Homeland Securit y, EEOC Appeal No.
0720060003 ( J une 18, 2007) , request for reconsideration denied,
EEOC Request No. 0520070778 ( September 25,
2007) ( $125, 000 for emotional distress damages) . Complainant
was subjected to sexual harassment by her supervisors attempt to
solicit sexual favors in exchange for employment advancement and
his inappropriate comments. Complainant suffered severe
emotional harm, stress, fear, depression and loss of self-esteem, as
well as physical harm in the form of insomnia, headaches, weight
fluctuations, and a stress-induced jaw disorder.

Cleland v. Depart ment of Vet eran Affairs, EEOC Appeal No.
01970546 ( August 9, 2000) ( $125, 000 for emotional distress
damages) . Complainant suffered physical and emotional harm for 5
years and expected continuation into the indefinite future.

Hendley v. At t orney General, EEOC Appeal No. 01A20977
( 2003) ( $125, 000 for emotional distress damages) Complainants
psychological harm was severe and psychological treatment
required for at least two years. The Commission noted:

. . . Complainant in her affidavit statements credibly recounted that
she had an initial severe reaction to the agency' s decision to
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9
discipline her for the incidents of sexual harassment that she
reported to the agency in October 1994. Prior to that time she
had been seeing a psychiatrist for the emotional harm from the
sexual assault just months before, but was improving and was
ready to return to work. She stated she shook with anger and pain
became extremely distraught and filled with anxiety. Complainant
stated she cried uncontrollably for long periods of time and she was
filled with despair and depression. This continued for the next six
years. Complainant stated that she became fearful and paranoid
that prison officials would come to her house and attack her, she
became antisocial, developed an eating disorder, experienced
sleeplessness and nightmares. Her professional life suffered
because she stated she was unable to return to work in her chosen
field of law enforcement. She felt " deeply humiliated and
embarrassed" because the agency concluded that she was
responsible for the behavior about which she complained.
Complainant also described deterioration in family relationships
which her husband corroborated in his affidavit.

VanDesande v. Post mast er General, EEOC Appeal No.
07A40037 ( 2004) ( EEOC Awarded $65,979.00 f or negative tax
consequences.)( Complainant harassed and terminated. The Commission
reduced an administrative judges award of $200,000 for emotional
distress damages to $150, 000 because the judge had not
accounted for the fact that despite his mental condition, the
complainant was able to train successfully as a firefighter/EMS and
complete his probationary period. The complainant presented
evidence that he would continue to need psychiatric treatment and
medication for depression, anxiety disorder and Post Traumatic
Stress Disorder for at least five years after the close of the hearing.
However, the Commission reduced the award because there was no
evidence the psychological conditions interfered with his training or
subsequent job performance.)

George v. Dep t of Healt h & Human Serv. , EEOC Appeal No.
07A30079 ( J uly 21, 2004) ( $125, 000 for emotional distress
damages) Complainants rheumatologist testified that as a result of
the agencys discriminatory conduct complainants rheumatoid
arthritis and lupus worsened substantially, which also resulted in
depression and anxiety, and the need for aggressive treatment ( i.e.,
chemotherapy) to address these concerns. Complainant would not be
able to have children with her husband; there was a marked differed
in complainants life; complainant became emotionally destroyed;
she did not want to go anywhere; her self-confidence was
undermined; and her relationship with her stepson was affected.
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The duration of the harassment appears to have lasted approximately
one year.

Sant iago v. Depart ment of t he Army, EEOC Appeal No.
01955684 ( October 14, 1998) ( $125, 000 for emotional distress
damages) . Complainant harassed and then terminated. Complainant
suffered depression and other emotional and mental disorders, and
severe chest and stomach pains, digestive problems and incidents
of shortness of breath for approximately 1 years due to three
years of verbal abuse by her supervisor.

Apont e v. Depart ment of Homeland Securit y, EEOC Appeal
No. 0120063532 ( J une 11, 2008) , request for reconsideration
denied, EEOC Request No. 0520080673 ( September 10, 2008) .
( $120, 000 for emotional distress damages). Complainant years
of depression, anxiety, anger, shame, humiliation, marital strain,
spiritual turmoil, sleep disturbances, and headaches. The
Commission considered complainants failure to respond to the
agencys requests for medical documentation to support his claim
in making the award, noting that complainant provided no evidence
to support his claim of a possible breach of confidentiality if he did
so. The Commission indicated that complainants failure to provide
supporting documentation weakened the credibility of a
psychologists diagnosis of Post Traumatic Stress and Adjustment
Disorder. Nevertheless, testimony of complainant, his wife and co-
workers showed that he experienced substantial emotional distress
as a result of the discrimination.

Moore v. U. S. Post al Service, EEOC Appeal No. 0720050084
( March 6, 2007) ( $120, 000 for emotional distress damages) .
Complainant was unemployed for over four years and suffered
ongoing significant physical pain, loss of health, emotional pain,
mental anguish, loss of career opportunities, and loss of enjoyment
of life as a result of retaliatory and discriminatory conduct by the
agency. His pain was chronic, and he was not been helped by
multiple surgeries or steroid injections. He became so depressed
and nervous that he sought treatment by a psychiatrist.
Complainants orthopedist testified the complainant' s shoulder
injury did not improve despite surgery and injections of steroids
and painkillers designed to reduce inflammation and stiffness. The
complainants shoulder injury resulted in significant burning pain and
discomfort as well as tightness. The physical pain interrupted his
sleep. He essentially could not use the arm for anything, but very
small activities. Complainant' s psychiatrist testified the complainant
2602
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is in a vicious cycle of anxiety and depression caused by his ongoing
orthopedic pain.

Durinzi v. U. S. Post al Service, EEOC Appeal No. 01A41946
( J uly 28, 2005) reconsideration denied 05A51158 ( October 10,
2005) ( $120, 000 for emotional distress damages). The
complainant and family members submitted affidavits:
Since August 1997, for over six years, as a result of the U.S. Postal
Service denying me reasonable accommodations and no job, to say
that my life has been turned upside down would be a gross
understatement. The anxiety and pain that I have experienced as a
result of the agency' s actions has had a severe negative impact on
my physical, emotional, mental, spiritual, and financial well-being. I
have gone from being a person who was secure, organized, well
adjusted, focused, happy with a bright future to a person who is
irritable, agitated, worried, tired, anxiety-ridden, unable to stay
focused, difficulty concentrating, angry, distressed and depressed
feeling a sense of dread about life in general. The person that I once
was is gone...The discriminatory action of the agency against me
have caused me to even challenge my faith and religion, which has
become a great source of pain, sorrow, and guilt for me. My faith
has always carried me through life up until this time. However, the
duration of time that this has gone on - six years - has caused me
to become too overburdened and too overwhelmed for too long a
period of time. . .I used to be a highly motivated individual. I now
feel motionless most of the time. . . I have also experienced
significant amount of weight loss. . . Six years ago, when the
agency denied me reasonable accommodation and denied me work
because of my disabilities, they threatened everything that meant
anything to me ( my health, my marriage, my livelihood, my dignity,
my intelligence, my faith, my very being!!!) Not only to me
personally, but it took a significant toll and put a tremendous
amount of strain on my relationship with my husband and on our
marriage. Our intimate marital relations, as a result, have become
virtually non-existent.

Chast ain v. Depart ment of t he Navy, EEOC Appeal No.
0120102409 ( November, 17, 2010) request for reconsideration
denied, EEOC Request No. 0520110240 ( March 31, 2011) ( EEOC
increased an Administrative J udges award of $15,0000 to
$115, 000 for emotional distress) . Complainant forced to resign
in lieu of termination. Complainant suffered significant weight gain,
an inability to sleep; nightmare; aggravation of physical injuries;
stomach distress; change in personality; loss of enjoyment in life;
withdrawal from family and friends; increased use of alcohol; lack of
2603
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socialize; isolation; bouts of anger. Complainant saw a therapist
twice a week until he could no longer afford the treatments. A
clinical psychologist diagnosed Complainant as suffering from Major
Depression as a result of the Agencys actions and testified
Complainants prognosis for recovery was only fair.
Complainants marriage deteriorated leading to divorce, and
Complainant was only permitted to see his youngest daughter
every other weekend and holiday. The Agencys discriminatory act
occurred in March 2008 and Complainants emotional injury was
continuing at the time of the EEOCs decision on November 17,
2010.

Sanford v. Post mast er General, EEOC Appeal No. 01A31818
( 2004) ( $115, 000 for emotional distress compensation)
Complainant had no t ime lost from work. Complainant was
stalked and sexually harassed by a co-worker for several years, and
the Agency failed to protect the Complainant. The Complainant
was not absent from work as a result of the discriminatory actions,
but reported nausea, a lump in the throat, sweating not brought on
by heat, itching all over her body, intensifying of her asthma,
clammy hands, dizziness, tingling in fingers and toes, difficulty
catching her breath, diarrhea, pain in the stomach, a pit in the
stomach, jelly legs, hot and cold flashes, crying, disturbances in
sleeping, nightmares/daydreams, shivers, and intrusive thoughts
and images related to the violence she experienced. The
Complainants psychiatrist reported the complainant suffered from
post-traumatic stress and would need 10 years of treatment to
recover from the effects of the harassment.

Rivers v. Secret ary of Treasury, EEOC Appeal No. 01992843
( 2002) ( $115, 000 for emotional distress damages) . Complainant
had a preexisting condition, but the harm extended over a
significant period of time. Complainants disability not
accommodated, substantial time off work, employee granted
disability retirement by OPM.

Winkler v. Dep t of Agricult ure, EEOC Appeal No. 01975336
( J une 7, 2000) , the Commission awarded $110, 000 after
complainant described experiencing feelings of fright, shock,
humiliation, embarrassment, loss of enjoyment of life, grief, anxiety,
loss of self-esteem, isolation, loss of marital harmony, and
depression as a result of the agency' s discrimination. A
psychiatrist concluded Complainants condition will continue for at
least two years.

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Brinkley v. U. S. Post al Service, EEOC Appeal No. 01953977
( 1998) ( $110, 000 for emotional distress damages) Complainant
hospitalized and suffered feelings of hopelessness, loss of energy,
agoraphobia, loss of interest in living, depressed mood, impaired
memory and concentration, insomnia, agitation, and loss of interest
in routine activities and personal self care.

St . Louis v. Depart ment of Agricult ure, EEOC Appeal No.
01985846 ( 2000) ( $105, 000 for emotional distress damages) .
Complainants psychiatrists report stated recovery may take years
for a partial recovery. Complainant unable to work and granted
worker compensation benefits by the U.S. Department of Labor.

Maeso v. Depart ment of Homeland, EEOC Appeal No.
0720080003 ( February 26, 2009) ( $100,000 emotional distress) .
Complainant submitted statements from friends and family
members discussing her depression, exhaustion, sleeplessness, lack
of self-esteem, stomach ailments, nervousness, and tearfulness
because of the harassment. Her physician reported she suffered
from tension headaches, situational depression/anxiety, and mild
panic attacks because of the hostile work environment.

Gray v. Depart ment of Int erior, EEOC Appeal No. 0120072136
( J uly 24, 2009) . ( EEOC increased an FAD award of $10, 000 for
emotional distress to $100, 000 and added a $6, 100 t ax
enhancement on back pay) . Complainant had a massive weight
gain to make herself less attractive to the sexual harasser.
Complaint suffered hypertension, headaches, sleep disorder,
depression, anxiety, nightmares, low self-esteem, increased alcohol
usages and withdrew from relationships with her daughter,
grandchildren and friends.

Sainz v. Depart ment of t he Treasury, EEOC Appeal No.
0720030103 ( September 19, 2008) ( $100, 000 for emotional
distress damages) . For at least three years, Complainants suffered
ongoing depression, low self-esteem, reduction in his quality of life;
financial difficulties, feelings of rejection, humiliation and isolation,
and weight gain. Complainant was forced to sell a life-time
collection of rare coins and currency that complainant considered
irreplaceable.

Sorg v. Depart ment of Commerce, EEOC Appeal No.
0720060065 ( J uly 23, 2008) , request for reconsideration denied,
EEOC Request No. 0520080765 ( December 17, 2008) ($100, 000
for emotional distress damages). Complainant suffered both severe
2605
14
emotional and physical distress over a period of five years, and was
diagnosed with irritable bowel syndrome, chronic depression, and
anxiety. Complainant was to be treated for these conditions
indefinitely.

Kahn v. Depart ment of t he Int erior, EEOC App. No.
07A50039 ( September 28, 2005) , the Commission awarded
$100, 000 in emotional distress damages despite the lack of
medical testimony, where the complainant described harm
involving: avoidance of people, crowds, and intense distrust of
White males; social isolation and withdrawal, including loss of
friends and colleagues; joylessness and loss of sense of humor;
distraction and withdrawal from family; relationship with husband
severely strained; high levels of stress and anxiety; exacerbation of
previously existing migraine, bronchitis, and asthma conditions;
menstrual irregularities; gastro-intestinal disorders; cracking of the
teeth due to excessive clenching and grinding; heart palpitations;
30 to 40 pound weight gain; foot problems; heartburn; difficulty
sleeping; diagnosed with moderately severe depression and
generalized anxiety; loss of appetite; diminished energy; and loss of
self-esteem and self-respect.

Mika v. Depart ment of t he Air Force, EEOC Appeal No.
07A40113 ( 2005) ( $100, 000 for emotional distress damages)
Complainant was wrongfully terminated from employment and
started drinking so he could stay drunk and sleep through it, [ so
he would not] have to worry about [ being terminated] , and
psychotherapy after termination.)

Green v. Pot t er, Post mast er General USPS, EEOC Appeal No.
01A44490 ( J uly 19, 2005) ( $100, 000 for emotional distress
damages) Complainant diagnosed with Post Traumatic Stress
Syndrome, his social and occupational functioning had been
significantly impaired, and his prognosis was poor. A clinical
psychologist' s stated complainant continued to display the
symptom configurations associated with PTSD and major
depression at severe levels. Complainant' s prognosis was poor and
that a global functionality assessment indicated a functionality of
50, which indicated serious impairment in social and vocational
functioning. He had been on various psychotropic medications to
control his symptoms, including, but not limited to Gabapentin,
Citalopram Hydro bromide, Clonzpen, Quetiapine Fumarate,
Trazodone, Nortriptyline, and Klonopin.

2606
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Despite extensive psychiatric treatment and evaluation, he
continued to exhibit these symptoms between March 1996 and
May 2004, and beyond. He reported that panic reactions would be
triggered by such activities as attending church services where
people would be behind him, and watching the rain. A doctor' s
note dated December 4, 2001, indicated that he had also been
diagnosed with peripheral neuropathy, a degenerative nerve
condition, which caused him to have to walk with a cane. The
doctor stated that, although complainant was first diagnosed with
peripheral neuropathy in 1985, the condition had been made worse
by having been coupled with his PTSD. The doctor characterized
his neuropathy as, more of a disability. The various statements
from treating psychiatrists and psychologists indicate that
complainant' s condition is permanent. Complainant was
convert ed from full-t ime t o part-t ime posit ion but t he
amount of lost t ime due t o discriminat ion is not st at ed in
t he EEOC decision.

Ellis-Balone v. Depart ment of Energy, EEOC Appeal No.
07A30125 ( 2004) ( $100, 000 in emotional distress) . For nine
months, complainant suffered physical pain and depression, felt
physically and emotionally drained.

Holland v. SSA, Appeal No. 01A01372 ( October 2,
2003) ( $100, 000 for emotional distress damages) Complainant
and psychiatrist showed that he experienced a severe emotional
injury when he continued to experience feelings of worthlessness
and low self-esteem for a period of five years, after he was denied a
reasonable accommodation and constructively discharge.
Complainant constructively discharged.

Yasko V. Depart ment of Army, EEOC Appeal No. 01A32340
( April 21, 2004) ( $100, 000 for emotional distress damages) .
Complainant started feeling depressed and anxious and was still in
emotional distress when her psychologist wrote his statement four
years later. It was expected the distress would last at least another
four to eight months. Complainant feared for her life, and
continued to do so at least until she stopped working. At times she
was too anxious to go to work, and upon returning from work would
frequently cry and vomit. The harassment broke the complainant' s
spirit, and she changed from a lively affectionate person to a
depressed and angry person. For months she was so depressed she
had trouble getting out of bed, and when she was awake, was
barely capable of conversation. She suffered from debilitating
anxiety attacks for years, and was so jumpy she no longer drove.
2607
16
The anxiety attacks isolated the complainant, at first preventing
much social contact, but later usually preventing extended social
contact. She had ongoing problems with suicidal ideation,
nightmares about the harassment, and insomnia. As a result of the
harassment, she is distracted, and has trouble focusing and
accomplishing tasks. As a result of the emotional injuries caused by
the harassment, she has been incapable of working for a period of
time.

Complainant' s weight gain and hypertension were aggravated by
the effects of the harassment, but not completely caused by it.
Prior to the harassment, the complainant had weight problems and
hypertension, and had been treated for high blood pressure. These
are ongoing conditions. While the complainant had prior situational
and reactive depression, statements by the complainant' s husband
and daughter demonstrate that this had resolved prior to the
harassment at issue.

Hendley v. Depart ment of J ust ice, EEOC Appeal No.
01A20977 ( May 15, 2003) request for reconsideration dismissed,
EEOC Request No. 05A30962 ( J anuary 14, 2004) ($100, 000
awarded for emotional distress) .Complainant suspended from
October 4, 1994 through November 25, 1994.

J anda V. Pot t er, Post mast er General, U. S. P. S. EEOC Appeal
No. 07A10018 ( March 4, 2002) ( $100, 000 emotional distress
award upheld by Commission in default case against the Agency,
but there is no description of the emotional harm suffered by
Complainant.

Pat el v. Depart ment of t he Army, EEOC Appeal No. 01980279
( Sept. 26, 2001) ( $100, 000 awarded for emotional distress) (The
EEOC denied Complainant s claim of 882 hours of annual
and sick leave. ) .

Leat herman v. Depart ment of t he Navy, EEOC Appeal No.
01A1222 ( 2001) ( $100, 000 for emotional distress damages) .
Complainant expressed suicidal ideations and was twice hospitalized
once for psychiatric treatment and once to treat physical aliments
related to her emotional distress. Complainants depression
became so severe she stopped bathing, combing her hair or
otherwise caring for herself and remained in bed.

In the first Chow decision, Chow v. Depart ment of t he Army,
EEOC Appeal No. 01981308 ( August 5, 1999)( $100, 000 for
emotional distress damages) . Complainant suffered from abdominal
2608
17
and chest pains, headaches, and hair loss, had difficulty sleeping
and stopped socializing with friends. Complainant had two years of
psychotherapy and was projected to complete psychotherapy with
a total of 42 months in therapy. (The complainant made no
claim for t ime off work.) Subsequently, in a second Chow
decision, in Chow v. Depart ment of t he Army Request No.
05991106 ( February 13, 2001) , the Commission granted
reconsideration and modified the award based on an agreement by
the parties placing a ceiling of $93,031.01 on the amount of the
compensatory damages. In modifying the award, the Commission
did not otherwise change the finding that based on the injuries
demonstrated that an award of $100,000 in emotional distress
compensation was appropriate.

Kelly v. Depart ment of Vet erans Affairs, EEOC Appeal No.
01951729 ( J uly 29, 1998) ( $100, 000 awarded where subjection
of aggrieved individual to hostile work environment caused her to
develop severe psychological injury, from which she was still
suffering at the hearing) ; (Complainant off work 17 mont hs.)

Finlay v. U. S. Post al Service, EEOC Appeal No. 01942985
( April 20, 1997) ( $100, 000 awarded for severe psychological
injury over four years with harm expected to continue for an
indeterminate period of time. Post-traumatic stress disorder.
Complainants symptoms included ongoing depression, frequent
crying, concern for physical safety, loss of charm, lethargy, social
withdrawal, recurring nightmares and memories of harassment, a
damaged marriage, stomach distress and headache.)( Complainant
off work for t hree years) .

The author of this article will welcome your comments or questions.
Please contact Attorney J osh Bowers at J BdcLaw@aol.com or visit
www.J oshBowersLaw.com.



2609
2
2610
ALI-ABA Course oI Study
Current Developments in Employment Law:
The Obama Years at Mid-Term
July 28 - 30, 2011
Santa Fe, New Mexico
Court Awards of Emotional Distress Damages Exceeding $100,000.00
By
Joshua F. Bowers
Joshua F. Bowers, P.C.
Silver Spring, Maryland
Submitted by
Robert B. Fitzpatrick
Robert B. Fitzpatrick, PLLC
Washington, D.C.
2611
2
2612

DISCLAIMER OF ALL LIABILITY AND
RESPONSIBILITY

THE INFORMATION CONTAINED HEREIN IS BASED
UPON SOURCES BELIEVED TO BE ACCURATE AND
RELIABLE INCLUDING SECONDARY SOURCES.
DILIGENT EFFORT WAS MADE TO ENSURE THE
ACCURACY OF THESE MATERIALS, BUT THE
AUTHOR ASSUMES NO RESPONSIBILITY FOR ANY
READERS RELIANCE ON THEM AND ENCOURAGES
READERS TO VERIFY ALL ITEMS BY REVIEWING
PRIMARY SOURCES WHERE APPROPRIATE AND BY
USING TRADITIONAL LEGAL RESEARCH
TECHNIQUES TO ENSURE THAT THE INFORMATION
HAS NOT BEEN AFFECTED OR CHANGED BY
RECENT DEVELOPMENTS.

THIS PAPER IS PRESENTED AS AN INFORMATIONAL
SOURCE ONLY. IT IS INTENDED TO ASSIST
READERS AS A LEARNING AID; IT DOES NOT
CONSTITUTE LEGAL, ACCOUNTING, OR OTHER
PROFESSIONAL ADVICE. IT IS NOT WRITTEN ( NOR
IS IT INTENDED TO BE USED) FOR PURPOSES OF
ASSISTING CLIENTS, NOR TO PROMOTE, MARKET,
OR RECOMMEND ANY TRANSACTION OR MATTER
ADDRESSED; AND, GIVEN THE PURPOSE OF THE
PAPER, IT MAY OMIT DISCUSSION OF EXCEPTIONS,
QUALIFICATIONS, OR OTHER RELEVANT
INFORMATION THAT MAY AFFECT ITS UTILITY IN
ANY LEGAL SITUATION. THIS PAPER DOES NOT
CREATE AN ATTORNEY-CLIENT RELATIONSHIP
BETWEEN THE AUTHOR AND ANY READER. DUE
TO THE RAPIDLY CHANGING NATURE OF THE LAW,
INFORMATION CONTAINED IN THIS PAPER MAY
2613
BECOME OUTDATED. IN NO EVENT WILL THE
AUTHOR BE LIABLE FOR ANY DIRECT, INDIRECT,
CONSEQUENTIAL, OR OTHER DAMAGES RESULTING
FROM AND/OR RELATED TO THE USE OF THIS
MATERIAL.
2614
2

The Federal Empl oyee
Advocate
Vol. 1, No. 15
( Updat ed December 7, 2010)
Court Awards of Emotional Distress
Damages Exceeding $100,000.00
By J osh Bowers
1

This is a second of two articles discussing awards of over
$100,000 for emotional distress injuries suffered because of
wrongful discrimination. The first article discussed awards of
emotional distress in Federal employee cases by the U.S. Equal
Employment Opportunity Commission. This article will discuss
emotional distress awards by Federal and State Courts.

In 1991, the Civil Rights Act was amended to provide victims of
discrimination compensation for emotional distress. Since that
time, Federal employees and Federal Agencies have struggled in
settlement negotiations to determine what is reasonable
compensation for the emotional distress. Negotiations have been
difficult because unlike all other litigation, virtually all settlements in
discrimination cases are confidential. The confidential settlements
have made it difficult for anyone to know what is the standard
settlement practice when settling emotional distress claims. When
parties to litigation are unable to reach a settlement agreement,
either an Administrative J udge of the EEOC or a jury will solve the
dispute with an award for emotional distress compensation.
Fortunately, we now have a growing body of EEOC and court
decisions awarding emotional distress compensation that allows us
to predict better the emotional distress award if a case goes to
trial. With the knowledge of the potential outcome in court, it is
becoming easier for parties to reach an agreement on a reasonable
settlement amount for emotional distress.

The cases below are provided to assist you evaluate the possible
verdict range based on the facts in your case:



2615
3

Paul, et . al. v. Asbury Aut omot ive Group, LLC d/b/a
Thomason Auto Group, D. Or. 06-1603-KI -- fall 2008 - race
discrimination/retaliation ( African-Americans) -- After deliberating
for about a day after six-day trial, the jury issued a verdict in favor
of all four plaintiffs, awarding each between $2. 2 and $1. 9
million in emotional distress damages, and punitive damages in the
amount of $2.75 million each. ( Case summary by Attorney
Marianne Dugan)

Griffin v. Cit y of Opa-Locka, 261 F.3d 1295( 11
th
Cir.
2001) ( $2 million award to a woman who was sexually harassed
during a four-month period and was raped by her manager.)

Wat son v. Depart ment of Rehabilit at ion, ( 1989) 212
Cal.App.3d 1271 ( $1. 6 million award for race and age
discrimination not excessive.)

Hubis v. Burns Pont iac GMC, No. 98-CV-1360, 2001 WL
34031303 ( D.N.J . March 12, 2001) ( J ury awarded plaintiff $1. 5
million for hostile work environment sexual harassment and gender
discrimination based, in part, on her supervisor exposing himself to
her twice and demoting her, motion for new trial or, in the
alternative, remittitur pending.)

Passant ino v. J ohnson & J ohnson Consumer Prods. , Inc.,
212 F.3d 493 ( 9
th
Cir. 2000) ( Affirming $1 million emotional
distress award for sexual harassment where plaintiff worried, cried,
and felt trapped and upset, spent less time with her family,
suffered stomach problems, rashes and headaches, and sought
counseling with her pastor.)

Lockley v. St at e of N. J . , L-031965-94 ( N.J . Law Div., Mercer
County, J an. 1997) ( J ury awarded male prison guard $750, 000 in
compensatory damages and $3 million in punitive damages for
reverse sexual harassment by female supervisor.)

Baker v. J ohn Morrell & Co., 266 F.Supp.2d 909 ( N.D.Iowa,
2003) Award of $735, 000. 00 in past and future emotional
distress damages to female employee, who was subject to sexual
harassment, retaliation, and constructively discharged in violation
of Title VII and the Iowa Civil Rights Act ( ICRA) , was not excessive,
given the years of unremedied harassment to which employee was
subjected, employee' s long-time relationship with employer, the
severity of harassment, employer' s disregard for her rights, and the
2616
4
toll that unlawful conduct took on employee' s emotional and
physical health. Award of $250,000.00 for past emotional distress
and $50,000.00 for future emotional distress; on her retaliation
claim, $75,000.00 for past emotional distress and $10,000.00 for
future emotional distress. The jury also awarded $150,000.00 for
past emotional distress and $200,000.00 for future emotional
distress for Plaintiffs constructive discharge. The jury awarded
$14,470.24 for Plaintiffs past medical expenses and $90,000.00
for future medical expenses on her sexual harassment claim. The
jury found that Plaintiff was entitled to a $33,314.73 award for
backpay. Finally, the jury assessed a sizable punitive damages
award of $600,000.00 for sexual harassment and $50,000.00 for
retaliation. The Clerk of Court entered judgment in the amount of
$1,522,784.97 on October 2, 2002.

Bihun v. AT & T Informat ion Syst ems, Inc. ( 1993) 13
Cal.App.4th 976 ( $662, 000 award for emotional distress for
sexual harassment not excessive, disapproved on other grounds by
Lakin v. Wat kins Associat ed Indust ries 6 Cal. 4th 644, 664
( 1993) )

St anisz v. Federal Exp. Corp. 2003 WL 21660885, Mich.App.,
2003., J uly 15, 2003
( In a sexual harassment case, the Appeals court upheld an
noneconomic damage award of $600, 000.)

Layt on v. New J ersey Turnpike Aut h., N.J .L.J . ( J une 12,
2000) ( J ury awarded toll collector $590, 000 for the emotional
distress she suffered from her supervisor' s unwanted physical
advances.)

Set t legoode v. Port land Public Schools, D. Or. 00-00313-ST -
Retaliation for enforcing special education laws - trial in 2002 --
$402,000 in economic damages for lost earnings; $500, 000 in
nonecononomic damages; $50,000 punitives against each of two
administrators. ( Case summary by Attorney Marianne Dugan)

Caridi v. Port Aut h. of N. Y. & N. J . , W-019262-89, 1992 WL
1474162 ( N.J . Law Div., Hudson County, Oct 1992) ( J ury awarded
police officer $500, 000 for emotional distress resulting from
sexual harassment in form of inappropriate work assignments,
unfounded departmental charges and inadequate supervision by her
supervisors of sexual harassment by co-workers.)

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J enkins v. American Red Cross, 141 Mich.App. 785, 798-99,
369 N.W.2d 223, 230 ( 1985) ( Upholding $500, 000 emotional
distress award) .

Wilmingt on v. J . I. Case Co. , 793 F.2d 909 ( 8th Cir. 1986)
( Affirming $400, 000. 00 jury award for emotional distress where
[ the plaintiff' s] testimony as well as that of other witnesses
tended to show a deterioration in his health, mental anxiety,
humiliation, and emotional distress resulting from the conditions
under which he worked and from the discharge.)

Wilson v. General Mot ors Corp. , 183 Mich.App. 21, 454
N.W.2d 405 ( 1990) ( Plaintiff presented no expert testimony
regarding her mental distress but only testimony as to her own
subjective feelings, the appellate court allowed the $375, 000. 00
award-remitted by the trial court from $750,000.00-of non-
economic damages to stand) .

Lilley v. BTM Corp., 958 F.2d 746 ( 6th Cir. 1992) ( Upholding a
verdict of $350, 000. 00 for emotional distress damages flowing
from the employer-defendant' s violation of the Elliott-Larsen Civil
Rights Act) ;

Love v. Shelby Count y Sheriff' s Dept., 2006 WL 1049336,
W.D.Tenn., April 20, 2006. ( Emotional Distress jury verdict of
$331,455.00, reduced by Court to $300, 000 due to statutory
ceiling, was not excessive award of emotional distress damages.
Plaintiff testified at length about the emotional and physical effects
he experienced. For example, Plaintiff testified that Nichols'
conduct made him feel upset and disappointed and shocked as
well as embarrassed, disgusted appalled. After Nichols' conduct
ceased, Plaintiff suffered from repeated migraine headaches;
experienced grief, frustration, and disgust; and had problems
focusing and relating to his family. Plaintiff further testified that he
feels as though he is in suspended animation and stuck in [ his]
tracks still dealing with something that happened to me almost
three years ago. Plaintiff' s wife testified that Plaintiff suffered from
migraines, depression, and other emotional problems starting in
J une 2001, all of which affected Plaintiff' s marital relationship as
well as his interaction with his children.)
EEOC v. Harbert Yeargin, 266 F.3d 498
( 6th Cir. 2002) : Award of $300,001 was
reduced by $1 to $300, 000 to conform to
the statutory cap on damages.
2618
6
Cadena v. The Paceset t er
Corporat ion: 224 F.3d 1203 ( 10th Cir.
2000) : The court affirmed an award of
$300,000 in compensatory and punitive
damages, $131,368.30 in attorneys fees,
and $6,735.70 in related expenses

Velez v. Roche, 335 F.Supp.2d 1022
( N.D.Cal. 2004) ( Hostile work environment
resulted in social withdrawal, loss of sleep
award $300, 000 in compensatory
damages.)

Ramseur v. Barret o, 213 F.R.D. 79
( D.D.C. 2003) ( Federal employee awarded
$300, 000 despite governments
argument that the medical evidence was
insufficient. Involves retaliation in
performance evaluations and
reassignments.)

Peyt on v. DiMario, 287 F.3d 1121 ( D.C.
Cir. 2002) ( Affirming $300, 000 award
based on anger, fear and loss of self-
esteem.)

Channon v. Unit ed Parcel Service,
Inc. , 629 N.W.2d 835, 851 ( Iowa, 2001)
( Plaintiff, subjected to unwelcome
touching, sexual comments, and assault,
was awarded a verdict including
approximately $530, 000 in
compensatory damages and $80,220,000
in punitive damages, the latter of which
was reduced to $300, 000 under title
VII.)

Det ers v. Equifax, 981 F.Supp. 1381
( D.Kan., 1997) ( Plaintiff, whose coworkers
rubbed and kissed her against her will,
received $5,000 in compensatory
damages and $1 million from the jury,
reduced to $300, 000 cap under 42
U.S.C. 1891a [ b] ) , aff' d 202 F.3d 1262
( Cir. 10, 2000) .
2619
7

Said v. Nort heast Securit y, 18 MDLR
255 ( 1996) ( $300, 000 award,
Complainants prayer rug was used to
clean; Complainant cried at hearing and
endured listening to manufactured
explanation of employers actions at
hearing.)

McDonough v. Cit y of Quincy, 452
F.3d 8 ( 1
st
Cir. 2006) ( Emotional distress
award of $300, 000 to a supervisor who
assisted employee with a sexual
harassment claim. Reprisal resulted in
humiliation, adverse impact on relationship
with wife and grandchildren, inability to
control anger.)

Gagliardo v. Connaught Laborat ories,
Inc. 311 F.3d 565 ( 3
rd
Cir.
2002) ( Emotional distress verdict of $1. 5
million reduced to Title VII damages cap
of $300, 000. ( Chest pains, elevated
blood pressure, moody-grouch, adverse
impact on relationship with children, self-
doubt, inability to control anger.)

Brady v. Gebbie, 859 F.2d 1543, 1558
( 9
th
Cir. 1988) ( Upholding an award of
$300, 000 for emotional distress;
Plaintiff suffered severe and malignant
insomnia, anxiety, suicidal fantasies, quiet
and severe depression and anxiety;
permanent psychological damage and
would require treatment for several years.
Numerous professionals in the legal,
academic, and medical field testified that
Plaintiffs reputation was tarnished and his
usefulness as an expert in his field
diminished due to his discharge.)

O' Rourke v. Cit y of Providence, 235
F.3d 713 ( 1st Cir. 2001) ( Emotional
distress award of $275, 000. 00 was not
excessive where plaintiff suffered from
2620
8
severe post-traumatic stress disorder
resulting from harassment.)

Tost i v. Ayik, 400 Mass. 224 ( 1987)
( $275, 000 in defamation claim;
discharge caused plaintiff to sell two
homes, uproot his family, sell furniture, and
borrow from relatives.)

Madison v. IBP. Inc. 330 F.3d 1051 ( 8
th

Cir. 2003) ( Affirming $266, 750. 00 jury
award for emotional distress and holding
award was not excessive in light of the
voluminous evidence the plaintiff
suffered emotional distress damages.)

Pavon v. Swift Transport at ion, 192
F.3d 902 ( 9th Cir. 1999) , Upholding a
Portland, Oregon, federal jury verdict for
racial employment discrimination with a
large amount of punitives and
noneconomics despite very minimal
economic damages - $1,218 in economic
damages; $250, 000 in noneconomic
damages; and $300,000 in punitives.
( Case summary by Attorney Marianne
Dugan)

Blakey v. Cont inent al Airlines, Inc.,
1997 WL 1524797 ( D.N.J . Sept. 1997)
( J ury awarded airline pilot $375,000 for
economic loss and $500,000 for pain and
suffering, which was remitted by the court
to $250, 000, for hostile work
environment sexual harassment.)

Samuelson v. Sungard Financial
Syst ems, Inc., 20 MDLR 197 ( 1998)
( $250, 000) ( Trouble concentrating,
crying, loss of enjoyment of life,
sleeplessness.)

Chanson v. West inghouse Corp., 17
MDLR 1293 ( 1995) ( $250, 000)
2621
9
( Exacerbation of Crohns disease, diarrhea
and stomach pains.)

Moorer v. Bapt ist Memorial Healt h
Care Syst em, 398 F.3d 469 ( 6
th
Cir.
2005) ( $250, 000 emotional distress
award to plaintiff devastated and
depressed by termination, isolated himself
from his family, suffered insomnia and
feelings of betrayal, anger, loss of self-
esteem, increased anxiety and adverse
impact on marriage.)

Webb v. Hyman, 861 F.Supp. 1094
( D.D.C. 1994) ( Sex discrimination and
retaliation resulted in post-traumatic
stress disorder award $225, 000 in total
damages.)

Simpson v. Burrows, D. Or. 97-6310-HU
-- February 2000 -- J udge Hubel issued
Findings of Fact and Conclusions of Law in
a tort case where plaintiff alleged that
defendants had drafted and circulated
letters hostile to her because of her sexual
orientation. He awarded plaintiff
$200, 000 in non-economic damages,
$52,500 in economic damages, and
$5,000 in punitive damages. ( Case
summary by Attorney Marianne Dugan)

Fox v. General Mot ors Corp., 247 F.3d
169, 180 ( 4
th
Cir. 2001) ( Affirming
$200, 000 emotional distress damages
award for plaintiff who suffered anxiety,
severe depression, and a worsening of an
already-fragile physical condition as a
result of constant harassment and
humiliation.)

Hogan v. Bangor & Aroost ook R. R.
Co. , 61 F.3d 1034 ( 1st Cir. 1995)
( Upholding $200, 000 compensatory
damages award to ADA plaintiff who
became depressed, withdrawn, and gave
2622
10
up his usual activities" due to employer' s
refusal to allow him to return to work after
work-related injury.)

Eich v. Board of Regent s for Cent .
Missouri St at e Universit y, 350 F.3d
752, ( 8
th
Cir. 2003) ( $200, 000 for non-
economic damages award was not
excessive.)

Grow v. W. A. Thomas Co. , 236
Mich. App. 696, 601 N.W.2d 426 ( 1997)
( $192, 684, Plaintiff subjected to
sexually explicit comments and unwanted
kissing and groping over several years.)

Hurley v. At lant ic Cit y Police Dep t,
933 F. Supp. 396 ( D.N.J .
2006) ( $175, 000 in emotional distress
damages, reduced on post trial motion
from $575,000.)

Deloughery v. Cit y of Chicago, 422
F.3d 611 ( 7
th
Cir. 2005) ( Affirming
compensatory award of $175, 000
emotional distress based solely on
testimony plaintiff suffered and would
continue to suffer significant emotional
distress for denial of promotion.)

Mat hieu v. Gopher News Co., 273 F.3d
769 ( 8th Cir. 2001) ( $165, 000
emotional distress award not excessive
where plaintiff in ADA claim was only
witness to testify about emotional
distress.)

Arnold v. Cit y of Seminole, 614
F.Supp. 853 ( N.D.Okla. 1985) ( Female
police officer awarded $150, 000 for
severe emotional distress as evidence by
post-traumatic stress syndrome and her
inability to work arising from harassment
that included vulgar comments, sexually
2623
11
graphic graffiti, and disparaging comments
about women police officers.)

Hurley v. At lant ic Cit y Police Dept.,
933 F.Supp. 396 ( D.N.J . 1996) ( Remitting
award from $500,000 to $175, 000 in
sexual harassment case where plaintiff
demonstrated serious harm which
resulted in plaintiff leaving work on stress
leave for a year.)

Moody v. Pepsi-Cola Met ro. Bot t ling
Co., 915 F.2d 201, 210-11 ( 6
th
Cir.
1990) ( Upholding a $150, 000 award of
emotional distress; Plaintiff was shocked
and humiliated; unable to secure
employment after the termination; moved
away from his family in order to maintain
employment; Plaintiff testified the move
had an adverse effect on his marriage; wife
testified that Plaintiff was upset to the
point of crying and that he never really
overcame the shock and humiliation of the
termination.)

Dodoo v. Seagat e Tech. , Inc. 235 F.3d
522, 532 ( 10
th
Cir. 2000) ( Affirming
$125, 000 damages award; Plaintiff has
trouble sleeping and wakes up with his
heart pounding, not knowing where he is.)

Kient zy v. McDonnell Douglas Corp.,
990 F.2d 1051 ( 8th Cir. 1993) ( Upheld
award of $125, 000 for mental anguish
and suffering and held that the district
court did not abuse its discretion in failing
to remit the award.)

Muldrew v. Anheuser-Busch, Inc., 728
F.2d 989 ( 8th Cir.1984) ( Finding
$125, 000 award for mental anguish in
1981 case to be reasonable) .

Durant e v. East ern Propert ies, Inc.,
18 MDLR 1 ( 1996) ( $125, 000; Plaintiff
2624
12
felt dirty and degraded, like a piece of
property, after being forced to have sex to
keep job.)

Moreno v. Consolidat ed Rail Corp.,
909 F.Supp. 480 ( E.D.Mich. 1994) , aff' d,
99 F.3d 782 ( 6th Cir. 1996) ( In a case
brought pursuant to the Rehabilitation Act,
the court upheld a jury award of
$125, 000. Plaintiff worked for the
defendant for over 30 years and was
terminated as a result of his disability.)

Rowlet t v. Anheuser-Busch, Inc., 832
F.2d 194 ( 1st Cir. 1987) ( Award of
$123, 000 in racial discrimination case
was not grossly excessive, where plaintiff
was subjected to several years of
discrimination and a significant period of
unemployment.)

Camacho v. Count ry Squire Diner, L-
599-96 ( N.J .Law.Div., Atl. County, Oct.
1998) ( J ury awarded waitress $103, 900
in compensatory damages, $50,000 in
punitive damages against diner and
$15,000 against owner for sexual
harassment in form of repeated foul and
suggestive language, obscene gestures
and her termination for complaining about
same.)

Ross v. Douglas Count y, Nebraska,
234 F.3d 391( 8th Cir. 2000) ( $100, 000
for emotional distress in a race
discrimination case was not excessive
where the plaintiff suffered emotional and
physical injuries and was forced to take a
lower paying job without health benefits.)

Kim v. Nash Finch Co., 123 F.3d 1046,
1065 ( 8
th
Cir. 1997) ( Affirming $100, 000
emotional distress award based on anxiety,
sleeplessness, stress, depression, high
2625
13
blood pressure, headaches, and
humiliation.)

Rush v. Scot t Specialt y Gases, Inc.,
930 F.Supp. 194 ( E.D.Pa. 1996) ( J ury
awarded plaintiff $1,000,000 in
compensatory damages after plaintiff had
proven that she had sustained substantial
emotion distress for over four years, and
the district court ordered a remittitur to
$100, 000.)

In St allwort h v. Shuler, 777 F.2d 1431
( 11th Cir. 1985) ( Affirming of $100, 000
for loss of sleep, marital strain and
humiliation over several years; plaintiff did
not seek professional counseling, did not
miss work and continued to adequately
perform work.)

In Lowery v. WMC-TV, 658 F.Supp.
1240 ( W.D.Tenn.1987) , vacated by
settlement, 661 F.Supp. 65
( W.D.Tenn.1987) , after a bench trial, the
court awarded plaintiff, a black television
news anchor who was denied promotion
and otherwise discriminated against,
$100, 000 in compensatory damages for
embarrassment, humiliation and mental
anguish. Plaintiff had been demoted ( not
fired) from his position. The award was
based on evidence including [ t] he
ultimate in humiliation when [ plaintiff]
was forced from his on-air responsibilities
in the wake of his filing of his Tit le VII
lawsuit. Such action shamed [ plaintiff]
before his coworkers and the community
and had an obvious devastating effect
upon him. Prior to this, [ plaintiff] was
continually humiliated and embarrassed by
being passed over for promotion, being
denied an employment contract, and being
paid less than similarly situated white
employees.

2626
14
In Dickerson v. HBO & Co. , et .
al.,1995 WL 767193 ( D.D.C.) , a Title VII
retaliation case, the court upheld a
$100, 000 jury award, although it fell in
the upper range of reasonableness. The
court based its conclusion on the fact that
plaintiff testified as to the humiliation and
emotional distress he felt because of his
demotion and transfer to the midnight
shift; he also explained how working the
midnight shift severely impacted the time
he spent with his children, and that
his entire employment situation adversely
affected his marital relationship.

Binder v. Long Island Light ing Co. ,
847 F.Supp. 1007 ( E.D.N.Y.1994)
( $100, 000 damage award for pain and
suffering where the plaintiff was so
distressed by his wrongful termination that
he attempted suicide.)

Gut h v. Fradellos, 18 MDLR 229 ( 1996)
( $100, 000) ( Insomnia; nightmares,
feeling of dread about going to work.)

Love v. Bost on Housing Aut horit y, 18
MDLR 249 ( 1996) ( $100, 000) ( Feeling
unsafe in own home.)

Nikolsky v. Summit Services Group,
Inc., 20 MDLR 126 ( 1998) ( $100, 000)
( depression)


2627
2
2628
ALI-ABA Course oI Study
Current Developments in Employment Law:
The Obama Years at Mid-Term
July 28 - 30, 2011
Santa Fe, New Mexico
Damages in Employment Cases
By
Richard T. Seymour
Law OIIice oI Richard T. Seymour, PLLC
Washington, District oI Columbia
Some oI the inIormation in this paper is used with permission Irom various
editions oI Richard T. Seymour and Barbara Berish Brown or John F. Aslin, Equal
Employment Law Update (Bureau oI National AIIairs, Washington, D.C.,
1996-2007), copyright American Bar Association, 1996-2007.
2629
2
2630
Table of Contents
A. Releases....................................................................................................................................... 3
B. Announced Settlements .............................................................................................................. 5
C. Settlement Authority ................................................................................................................... 6
D. Damages for Breach of Settlement ............................................................................................. 6
E. Verdicts and Verdict Forms ........................................................................................................ 6
F. After-Aquired Evidence .............................................................................................................. 8
1. Background ............................................................................................................................. 8
2. Misconduct During the Hiring Process ................................................................................. 10
3. Misconduct After Termination ............................................................................................. 10
4. General Application .............................................................................................................. 11
5. Inapplicability of McKennon to Predictions of Future Wrongdoing .................................... 13
6. Waiver of the Defense .......................................................................................................... 13
7. Establishing That the Wrongdoing Would, if Known, Have Led to Discharge or
Other Adverse Consequences ........................................................................................................... 14
a. Defendant Has the Burden of Persuasion ......................................................................... 14
b. Severity of the Alleged Misconduct ................................................................................. 15
c. Possible vs. Certain Consequences ................................................................................... 17
d. Other Elements of the Defendants Showing .................................................................... 17
8. Contentions of Excessive Employer Inquiries ...................................................................... 19
9. Effect of the Rule on Liquidated Damages ........................................................................... 20
10. Effect of the Rule on Compensatory and Punitive Damages ............................................ 21
11. Plaintiffs Efforts to Use the Doctrine to Bar Evidence ................................................... 22
G. Back Pay ................................................................................................................................... 22
1. Entitlement ............................................................................................................................ 22
a. Defendants Lowering of Pay Scale in the Job at Issue .................................................... 22
b. Undocumented Aliens ....................................................................................................... 23
c. Pattern and Practice Finding Creates Presumption ........................................................... 23
d. Eleventh Amendment ........................................................................................................ 24
e. Entitlement When Plaintiff Too Sick to Work ................................................................. 24
2. Causation............................................................................................................................... 24
3. Unconditional Offers of Reinstatement ................................................................................ 25
4. Mitigation .............................................................................................................................. 26
5. Laches ................................................................................................................................... 28
6. Elements of Back Pay ........................................................................................................... 29
7. Length of Back Pay Period ................................................................................................... 31
8. Calculation ............................................................................................................................ 31
a. Lost Chance Method ..................................................................................................... 31
b. Make-Whole Relief When There are More Complainants than Vacancies .................. 32
c. Ending Date ...................................................................................................................... 33
d. Offsetting Economic Value ............................................................................................... 34
e. Ranges of Pay Rates.......................................................................................................... 34
f. Components ...................................................................................................................... 34
9. Jury Determinations .............................................................................................................. 34
H. Front Pay ................................................................................................................................... 35
2631
2
1. Entitlement ............................................................................................................................ 35
2. Alternative of Reinstatement ................................................................................................ 35
3. Awards of Front Pay Where Liquidated Damages Are Awarded ......................................... 39
4. Unclean Hands Defense .................................................................................................... 39
5. Length of Front Pay Award .................................................................................................. 39
6. Ability to Work as Condition of Front-Pay Entitlement ....................................................... 41
7. Necessity of Hearing ............................................................................................................. 41
8. Mitigation .............................................................................................................................. 41
9. Deduction for Sick Leave or Collateral Benefits .................................................................. 43
10. Ending Date ...................................................................................................................... 43
11. Calculation ........................................................................................................................ 44
a. Reduction of Front Pay Award to Present Value .............................................................. 44
b. Proof by Plaintiffs Own Testimony ................................................................................. 44
c. Front Pay and the Caps on Damages under the 1991 Civil Rights Act ............................ 45
I. Prejudgment Interest ................................................................................................................. 45
1. Entitlement ............................................................................................................................ 45
2. Rate of Interest ...................................................................................................................... 45
J. Compensatory Damages ........................................................................................................... 47
1. Entitlement ............................................................................................................................ 47
2. Waiver of Appeal as to Amount ........................................................................................... 48
3. Amount, in the Absence of Expert Testmony ....................................................................... 49
4. Mitigation .............................................................................................................................. 51
5. Allowing Post-Verdict Amendment to Complaint to Justify Award of Compensatory
Damages ................................................................................................................................ 51
6. Foreseeability ........................................................................................................................ 52
7. Irrelevance of Defendants Ability to Pay ............................................................................ 53
8. Other Decisions as to Amount .............................................................................................. 53
K. Liquidated Damages ................................................................................................................. 55
L. Punitive Damages ..................................................................................................................... 57
1. State Farm v. Campbell......................................................................................................... 57
2. Punitive-Damage Amounts After State Farm: Civil Rights Cases ....................................... 60
3. Punitive-Damage Amounts After State Farm: Other Cases ................................................. 68
4. Entitlement Where No Compensatory or Nominal Damages Are Awarded ........................ 70
5. Entitlement Where Defendant Has Tried to Cover Up Its Acts ............................................ 74
6. Entitlement Where Accommodation Was the Issue ............................................................. 77
7. Other Questions of Entitlement ............................................................................................ 78
8. Action Taken Pursuant to Legal Advice ............................................................................... 86
9. Vicarious Liability ................................................................................................................ 86
10. Good-Faith Defense .......................................................................................................... 88
11. Effect of Post-Event Remediation .................................................................................... 93
12. Instructions ........................................................................................................................ 94
13. Amount ............................................................................................................................. 95
14. Waiver of Challenge to Amount ....................................................................................... 98
M. The Damages Caps in the 1991 Act ...................................................................................... 98
N. Re-Allocation of Jury Awards to Maximize Damages ............................................................. 99
O. Fees and Expenses .................................................................................................................. 101
2632
3
1. Bars to Entitlement ............................................................................................................. 101
2. FLSA Plaintiff Denied Fees for Lack of Collegiality ......................................................... 102
3. Grounds for Entitlement ......................................................................................................... 103
4. Enhancements to Lodestar .................................................................................................. 103
5. Procedure for Resolving Fees in Common-Fund Class Actions ........................................ 106
6. Reasonable Time ................................................................................................................. 109
7. Problems with Recordkeeping ............................................................................................ 109
8. The Relevant Community for Hourly Rates ....................................................................... 110
9. Need to Exercise Billing Judgment ..................................................................................... 110
10. Discounts for Partial Success, and Need to Avoid Double Discounts ............................ 111
11. Refusal to Discount for Partial Success .......................................................................... 111
12. Costs and Expenses ......................................................................................................... 113
P. Sanctions ................................................................................................................................. 113
Q. Taxes ....................................................................................................................................... 122
1. Attorneys Fees ................................................................................................................... 122
2. The Civil Rights Tax Fairness Act Glitch........................................................................... 123
3. Emotional-Distress Damages .............................................................................................. 123
4. Grossing Up Awards to Compensate for the Additional Taxes ...................................... 124
5. Tax Disputes Do Not Affect Finality of Settlement ........................................................... 124
A. Releases
Syverson v. International Business Machines Corp., 461 F.3d 1147, 98 FEP Cases 1345
(9th Cir. 2006), reversed the grant of summary judgment to the ADEA collective action
defendant and held that IBMs release and covenant not to sue did not meet the requirement of
the OWBPA. The flaw in question was that IBMs severance package required that employees
sign a document containing a release of all claims, including ADEA claims, and also containing
a covenant not to sue that expressly excluded claims under the ADEA. Judge Berzon
summarized the panel ruling at 1149:
Under the Older Workers Benefit Protection Act (OWBPA), employees may
not waive rights or claims arising under the Age Discrimination in Employment Act
(ADEA) unless the waiver is knowing and voluntary. 29 U.S.C. 626(f)(1) (2000).
To qualify as knowing and voluntary, a waiver included in an agreement between an
employer and its employees must, among other things, be written in a manner calculated
to be understood by the average employee eligible to participate in the agreement. Id.
626(f)(1)(A). This appeal presents the question whether a waiver form used by
International Business Machines Corp. (IBM) in connection with a severance benefit
package meets that standard. We hold that it does not and was therefore not knowing
and voluntary. Id. 626(f)(1).
The court further elaborated on the OWBPA requirements in referring with approval to the U.S.
Department of Labors explication:
2633
4
To satisfy the manner calculated requirement, [w]aiver agreements must be
drafted in plain language geared to the level of understanding of the individual party to
the agreement or individuals eligible to participate in a group termination plan. 29
C.F.R. 1625.22(b)(3) (2005). Employers are thus instructed to take into account such
factors as the level of comprehension and education of typical participants. Id. These
considerations usually will require the limitation or elimination of technical jargon and
of long, complex sentences. Id.
Id. at 1152 (footnote omitted.) Because the court held that the basic requirements of the statute
were not met, it saw no reason to decide whether to adopt the totality of the circumstances
approach for deciding matters as to which the basic requirements are met. Id. at 1152 n.7. The
court held that the apparent conflict between the release and the covenant not to sue would be
confusing to the ordinary reader, and that IBMs business purpose in adding the covenant not to
sueto ensure its ability to collect damages if a signing employee sued on a waived claimdid
not save the provision:
Given this substantive overlap between releases and covenants not to sue, that fact
that the MERA Agreements covenant not to sue contains an exception for ADEA claims
necessarily creates potential confusion, as it appears to lift any barrier from proceeding to
court with an ADEA claim. The confusion ensues, in part, from including in a single
document two concepts that, technically speaking, cannot coexist. Under the classic
definitions contained in Blacks Law Dictionary and in the case law quoted above, a
covenant not to sue is pertinent only if the underlying right is not extinguished, while a
release extinguishes any underlying right. Where both nonetheless appear in the same
document, the covenant not to sue largely swallows the releaseand the negation of the
covenant not to sue can therefore be read as negating the release as well.
IBM stresses that without the covenant not to sue it would have been deprived of
the full benefit of its bargain with those employees who signed on to the MERA
Agreement, because without the covenant, although IBM could raise the Release as an
affirmative defense and obtain a dismissal of the suit, it still would be out its costs and
attorneys fees. IBM also maintains that the covenant not to sue was drafted to comply
with the EEOC regulation that provides: [n]o ADEA waiver agreement, covenant not to
sue, or other equivalent arrangement may impose any . . . penalty, or any other limitation
adversely affecting any individuals right to challenge the agreement . . . . [including]
provisions allowing employers to recover attorneys fees and/or damages because of the
filing of an ADEA suit. 29 C.F.R. 1625.23(b).
It very well may have been IBMs intention to draft an agreement that would
preserve the right of an employee to challenge without penalty his waiver of ADEA
claims as not knowing or voluntary. See Thomforde II, 406 F.3d at 504 (observing that
[t]he intended effect of the Agreement was to release the employees substantive claims
under the ADEA, while preserving the employees right to challenge the validity of the
release through a lawsuit, as provided by the regulations (citing 29 C.F.R.
1625.23(b))). If that was IBMs intention, it would have been quite easy to have
accomplished this purpose directly. The MERA Agreement, by contrast, uses a term
unfamiliar to lay people,covenant not to sue, and does not explain how the release and
2634
5
the covenant not to sue dovetail, either in general or as they relate to the ADEA claims.
See id. (noting that the Agreement does not explain how the provisions relate to each
other or the limited nature of the exception to the covenant not to sue in light of the
release of claims); see also 29 C.F.R. 1625.22(b)(3) (Consideration [of the need to
draft waiver agreements in plain language] . . . usually will require the limitation or
elimination of technical jargon and of long, complex sentences.).
Indeed, far from explaining the intended, independent functions of the release and
of the covenant not to sue, the MERA Agreement muddles the matter by referring to both
provisions with the same shorthand nameReleaseindicating interchangeability, not
distinction. See Thomforde II, 406 F.3d at 504 (noting same). Adding to the confusion,
the paragraph containing the covenant not to sue in fact refers to the covenant and the
broader Release as if the terms were completely interchangeable. See id. (noting
same).
Id. at 116061.
Thomforde v. International Business Machines Corp., 406 F.3d 500, 95 FEP Cases 1145
(8th Cir. 2005), also held that these aspects of IBMs release and covenant not to sue were too
confusing to meet the OWBPA requirements.
Myricks v. Federal Reserve Bank of Atlanta, 480 F.3d 1036, 1041, 100 FEP Cases 1
(11th Cir. 2007), affirmed the grant of summary judgment to the Title VII defendant, holding
that the cause of action was barred by plaintiffs execution of a general release as part of his
severance agreement. The court explained the standards in considering the knowing and
voluntary character of a release:
The error of Myrickss argument is that the Bank explained in clear terms that the
severance agreement required the execution of a general release, and Myricks had an
opportunity to consult his attorney about those terms. A genuine issue of fact may exist
when an employee has not been given enough time to review the agreement after being
terminated . . . is not educated enough to understand the waiver . . . or is misled to believe
that the release was necessary to prevent the employer from taking an unlawful action . . .
but an educated employee with ample time to consider an agreement cannot profess
ignorance about its clear terms after consulting an attorney . . . . Myricks had enough time
to consider the clear terms of the release, was educated, was not threatened with any
unlawful action, and consulted an attorney.
The court affirmed the award of costs against plaintiff, because the defendant prevailed on an
affirmative defense.
B. Announced Settlements
Practice Tip: Do Not Agree to a Settlement and Then Assert that New Desired
Terms are Material: Dillard v. Starcon International, Inc., 483 F.3d 502, 100 Fair
Empl.Prac.Cas. (BNA) 824 (7th Cir. 2007), enforced an oral settlement agreement, holding that
enforceability was governed by State law, and that plaintiffs disputes about additional written
terms he wanted to see in the agreement were immaterial. One of the disputes concerned
2635
6
plaintiffs effort to change his at-will employment status. The court approved the Magistrate
Judges finding this was immaterial because plaintiff had always been an at-will employee, and
this question had not even been mentioned in the negotiations leading to the oral agreement
although more mundane matters had been addressed. The court rejected plaintiffs argument
that terms discussing the consequences of certain possible events were material, stating: Terms
addressing purely contingent matters are not necessarily material.
C. Settlement Authority
Makins v. District of Columbia, 389 F.3d 1303 (D.C. Cir. 2004) (per curiam), after an
answer to a question certified to the D.C. Court of Appeals, that attorneys do not have any
presumed authority to settle cases and that in the absence of actual authority defendants cannot
rely on any statements by plaintiffs counsel but must have direct confirmation from the plaintiff
of authority to settle. The D.C. Court of Appeals citation answering the certified question is
Makins v. District of Columbia, 861 A.2d 590 (2004). The court stated at 59495:
As pointed out, in the District of Columbia the decision to settle belongs to the
client, see D.C. Rule of Prof. Conduct 1.2(a) (2004), a fact confirmed by our decisions.
In Bronson, supra note 3, 404 A.2d at 960, for example, an attorney brought a declaratory
judgment action to enforce a purported settlement agreement against the client. This
court refused to bind the client to the agreement, because the decision to accept the
agreement was the client's and not the attorney's. "[R]egardless of the good faith of the
attorney," we stated, "absent specific authority, an attorney cannot accept a settlement
offer on behalf of a client." Id. at 963.
D. Damages for Breach of Settlement
Frahm v. United States, 492 F.3d 258, 100 Fair Empl.Prac.Cas. (BNA) 1631 (4th Cir.
2007), involved a settlement agreement of a Title VII claim. The IRS conceded that it had
breached the agreement. The agreement provided: If a breach of this provision or any other
provision occurs, Frahm will be permitted to reassert any and all claims covered by this
Agreement. IRS acknowledges and waives any applicable time restraints and/or statutes of
limitation generally applicable to such claims, expressly permitting such claims to be reopened
and asserted. The court held that there was no right to monetary damages for the breach, where
the settlement agreement did not provide such a remedy.
E. Verdicts and Verdict Forms
Medina v. District of Columbia, __ F.3d __, 2011 WL 2609840 (D.C. Cir. July 1, 2011)
(No. 10-7094), reversed the judgment of $180,000 in compensatory damages to plaintiff on his
racial discrimination claim against the D.C. Police Department as an impermissible double
recovery, where the verdict form showed $90,000 on a Federal claim and $90,000 on a D.C.
claim. The court had to jump through analytic hoops to determine that the Federal claim on
which damages were awarded was 1983 and not Title VII based on the instructions. Id, at p.
at p. *3. The court held, based on the Complaint, that plaintiff had pleaded only one injury,
emotional distress caused by retaliation. It then concluded that the jurys award was a duplicate
recovery for one injury, at pp. *4-*5:
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The only question remaining is whether Medina recovered twice for the same injury. We
conclude he did. The magistrate judge held as a matter of law Medina could recover under
both D.C. law and federal law theories. Id. at 96, reprinted at J.A. 369 (I have concluded
as a matter of law that [Medina] may [succeed under both the D.C. law and federal law
theories] and you [the jury] are not to concern yourself with that question at all or worry
about double recovery.). It seems the magistrate judge believed the double recovery
inquiry turned not on the injuries Medina suffered but on the source of law giving rise to
the cause of action. See Medina, 718 F.Supp.2d at 58 (Thus, contrary to defendant's claim
that plaintiff recovered twice upon the same theory of retaliation, plaintiff actually
recovered once under a federal statute and once under a District of Columbia statute.). But
this is incorrect. As we explained earlier, [i]f a federal claim and a state claim arise from
the same operative facts, and seek identical relief, an award of damages under both theories
will constitute double recovery. Mason, 115 F.3d at 1459 (quoting U.S. Indus. ., 854 F.2d
at 1259). Medina's D.C. law and federal law theories of retaliation arose from the same
facts (MPD's failure to transfer him to Internal Affairs) and sought identical relief
(compensation for emotional distress and humiliation). That Medina presented both D.C.
law and federal law theories to prove his case does not alter this conclusion.
Medina can prevail under these facts only if the jury intended to award him $180,000
for a single injury and allocated that amount between Medina's two theories of liability.
Although Medina failed to make this argument, even if he had, it would be unsuccessful.
The magistrate judge explicitly instructed the jury not to concern itself with double
recovery because he had concluded as a matter of law that Medina could recover under
both his federal law and D.C. law theories. Trial Tr. at 96 (July 24, 2008), reprinted at J.A.
369. In light of this statement, we cannot presume the jury intended to compensate Medina
$180,000 for a single injury without regard to the multiplicity of theories pled.
The court held that the problem of a double recovery does not arise for punitive damage awards:
Punitive damages, unlike compensatory damages, are not aimed at making a plaintiff whole;
thus the rule against double recovery is inapplicable when the damages awarded are punitive.
Id. at p. *5.
Comment on Medina v. District of Columbia: Attorneys on both sides need to pay
more attention to the verdict form, to avoid the difficulties the court encountered. The practical
difficulty is that if a verdict form has one damages entry for multiple theories, a reversal on any
one will require a re-trial. Perhaps the safest form would be one that had a blank for the total
award, and a question whether the same award would have been made under either statute by
itself. If the answer is no, the jury will need to be asked for separate awards.
Bains LLC v. Arco Products Co., 405 F.3d 76 (9th Cir. 2005), affirmed the judgment of
liability and the award of compensatory damages, but held that the award of $5 million in
punitive damages to the Sikh-owned plaintiff was excessive and that the most that could be
allowed was between $300,000 and $450,000. The court rejected defendants challenge to the
verdict form as inconsistent, holding that the $1 awarded in nominal damages did not necessarily
mean that there was no harm, but that the extent of the harm had not been proven. The court was
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required to adopt the latter interpretation because it made sense out of the verdict, considering
the evidence.
Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1287, 102 FEP Cases 716 (11th
Cir. 2008), affirmed the judgment on a jury verdict for the Title VII and 1981 retaliation
plaintiff. In connection with the courts holding on the permissibility of admitting evidence of
other instances of discrimination, the court stated: The jury reached a split verdict that
discharged Bagby Elevator from liability for Goldsmith's claim of a hostile work environment
and his claim about a failure to promote. A split verdict suggests that the jury reached a
reasoned conclusion free of undue influence. (Citation omitted.)
Wilbur v. Correctional Services Corp., 393 F.3d 1192, 1200 n.4 (11th Cir. 2004),
affirmed the grant of judgment as a matter of law to the Title VII sexual harassment defendant
because the jurys answers to the special interrogatories removed any basis for the award of
damages. The court held that defendant did not waive its Rule 49(b) challenge to the
inconsistency of the verdict despite its failure to raise the issue before the jury was discharged.
The court held it would have been futile, because plaintiffs counsel had raised the issue of
inconsistency prior to discharge of the jury, and the trial court had refused to resubmit the
question. To find otherwise means that CSC was required, solely for the sake of formality, to
challenge the same matter that the district court had expressly ruled on an instant before.
F. After-Aquired Evidence
1. Background
McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 66 FEP Cases 1192
(1995), held that evidence of employee wrongdoing or problems acquired after the challenged
employment decision was taken, or occurring after that decision was taken, can never bar a
finding of liability but can be taken into account in determining the remedy. The Sixth Circuit
rule rejected by the Court had barred all types of employment discrimination suitseven racial
and sexual harassment cases, e.g., Vandeventer v. Wabash National Corp., 867 F. Supp. 790, 67
FEP Cases 619 (N.D. Ind. 1994) (racial harassment; alternative holding), superseded, 887 F.
Supp. 1178, 68 FEP Cases 56 (N.D. Ind. 1995); Conaway v. Auto Zone, Inc., 866 F. Supp. 351,
66 FEP Cases 265 (N.D. Ohio 1994) (sexual harassment)if the employer could prove that it
would not have hired the employee if it had known of the concealed problem.
The Court held that such evidence can be relevant to the relief to be accorded a victim of
discrimination, but is never relevant to liability. Nor may such evidence operate in all cases to
foreclose all relief. Discussing the importance of the ADEA and the effect of individual suits in
vindicating public policy, the Court stated:
It would not accord with this scheme if after-acquired evidence of wrongdoing that would have
resulted in termination operates, in every instance, to bar all relief for an earlier violation of the
Act.
513 U.S. 352, 358. Mixed-motive cases are inapposite, because the task here is not disentangling
the employers motives at the time of the action. Here, the employer did not know of the
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legitimate reason for termination at the time of the decision. Id. at 35960. Further, the clean
hands doctrine does not apply where a private suit serves important public purposes. Id. at 360.
The effect of such evidence on relief is to be determined on a case-by-case basis, bearing in mind
both the importance of the statutory goals and the importance of legitimate employer
prerogatives. The Court stated:
The proper boundaries of remedial relief in the general class of cases where, after
termination, it is discovered that the employee has engaged in wrongdoing must be
addressed by the judicial system in the ordinary course of further decisions, for the
factual permutations and the equitable considerations they raise will vary from case to
case. We do conclude that here, and as a general rule in cases of this type, neither
reinstatement nor front pay is an appropriate remedy. It would be both inequitable and
pointless to order the reinstatement of someone the employer would have terminated, and
will terminate, in any event and upon lawful grounds.
Id. at 36162. The Court stated that the back pay questions were more difficult, requiring a
balancing test between the need to compensate victims and deter violations on the one hand, and
to give effect to employers lawful rights on the other:
Resolution of this question must give proper recognition to the fact that an ADEA
violation has occurred which must be deterred and compensated without undue
infringement upon the employers rights and prerogatives. . . . Once an employer learns
about employee wrongdoing that would lead to a legitimate discharge, we cannot require
the employer to ignore the information, even if it is acquired in the course of discovery in
a suit against the employer and even if the information might have gone undiscovered
absent the suit. The beginning point in the trial courts formulation of a remedy should be
calculation of backpay from the date of the unlawful discharge to the date the new
information was discovered. In determining the appropriate order for relief, the court can
consider taking into further account extraordinary equitable circumstances that affect the
legitimate interests of either party. An absolute rule barring any recovery of backpay,
however, would undermine the ADEAs objective of forcing employers to consider and
examine their motivations, and of penalizing them for employment decisions that spring
from age discrimination.
Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it
must first establish that the wrongdoing was of such severity that the employee in fact
would have been terminated on those grounds alone if the employer had known of it at
the time of the discharge. The concern that employers might as a routine matter undertake
extensive discovery into an employees background or performance on the job to resist
claims under the Act is not an insubstantial one, but we think the authority of the courts
to award attorneys fees, mandated under the statute, 29 U.S.C. 216(b), 626(b), and in
appropriate cases to invoke the provisions of Rule 11 of the Federal Rules of Civil
Procedure will deter most abuses.
Id. at 36263 (citation omitted).
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2. Misconduct During the Hiring Process
Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 111415, 83 FEP Cases 556 (D.C. Cir.
2000), reversed the dismissal, for failure to state a claim, of the pro se Title VII and 1981
Complaint. The lower court had dismissed the Complaint for failure to plead facts sufficient to
establish a prima facie claim and to establish pretext. The D.C. Circuit rejected that reasoning.
The court stated that a plaintiff can plead too much: that is, to plead himself out of court by
alleging facts that render success on the merits impossible. Id. at 1116 (citation omitted). It
observed that the plaintiff came close to the line here by alleging his conviction of multiple
felonies in 1982, his falsification of his employment application, and Uniteds informing him
that it was firing him because of his dishonesty in failing to reveal the convictions. But that is
not the end of the matter. First, this nondiscriminatory reason would apply at most to Sparrows
termination claim; the complaint does not suggest that United knew of Sparrows false statement
at the time his requests for promotion were rejected. Id. at 111617 (citation omitted).
In general, the appellate courts are treating McKennon as applicable when the after-
acquired evidence concerns a lie or misstatement in the hiring process, as well as an employees
wrongful conduct during employment.
3. Misconduct After Termination
Sellers v. Mineta, 358 F.3d 1058, 106365, 93 FEP Cases 417 (8th Cir. 2004), affirmed
the lower courts denial of reinstatement and front pay to the Title VII plaintiff because of her
post-termination serious misconduct that led to her discharge from a subsequent employer. The
court stated that we cannot establish a bright-line rule and foreclose the possibility that a Title
VII plaintiffs post-termination conduct may, under certain circumstances, limit the remedial
relief available to the plaintiff. Id. at 1063. The court explained:: The availability of front pay
as a remedy thus presupposes that reinstatement is impractical or impossible due to
circumstances not attributable to the plaintiff. It would be inequitable for a plaintiff to avail
herself of the disfavored and exceptional remedy of front pay where her own misconduct
precludes her from availing herself of the favored and more traditional remedy of reinstatement.
As such, we hold that a plaintiffs post-termination conduct is relevant in determining whether a
front pay award is available, and if so, in determining the extent of the award. Id. at 1064. The
court held that defendant had to establish its actual practices, and could not simply rely on the
representation that it would never employ a person fired or forced to resign. The court stated:
On remand, in order to establish that Sellers front pay remedy should be limited by her post-
termination conduct, the defendant must convince the court by a preponderance of the evidence
that Sellers post-termination conduct renders her ineligible for reinstatement under the FAAs
employment regulations, policies, and actual employment practices. Id. at 1065 (footnote
omitted).
Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 55455, 78 FEP Cases 1592 (10th Cir.),
cert. denied, 528 U.S. 813 (1999), affirmed the judgment on a jury verdict for the Title VII
retaliation plaintiff, but stated: Defendant is correct that it may rely on information obtained
during the discovery process in making employment decisions so long as it does not do so as a
pretext for discrimination or retaliation. Id. at 554. The court stated that information on pre-
termination misconduct that was learned by the defendant after plaintiffs discharge may bar
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reinstatement, front pay, and possibly back pay. Post-termination misconduct is in a different
category, however. The court explained:
Defendant argues that it would have terminated plaintiff on the basis of his post-
termination conduct at his unemployment compensation benefits hearing, during which
he touched and cursed at Defendants counsel. . . . Although we do not foreclose the
possibility that in appropriate circumstances the logic of McKennon may permit certain
limitations on relief based on post-termination conduct . . . we cannot conclude that the
district court abused its discretion in refusing to adopt defendants proffered instruction.
The alleged misconduct to which defendant points occurred at a hearing occasioned by
plaintiffs termination. In this case, as in most cases in which the alleged misconduct
arises as a direct result of retaliatory termination, the necessary balancing of the equities
hardly mandates a McKennon-type instruction on after-occurring evidence.
7
________________
7
It is not difficult to envision a defendant goading a former employee into losing
her temper, only to claim later that certain forms of relief should be unavailable because
it would have discharged the plaintiff based on her inability to control her temper.
Id. at 555 & n.7.
4. General Application
Miller v. AT&T Corp., 250 F.3d 820, 83738, 6 WH Cases 2d 1754 (4th Cir. 2001),
affirmed the judgment on stipulated facts for the FMLA plaintiff. The court affirmed the lower
courts holding that defendant did not make out its case for limiting plaintiffs back pay award in
McKennon, but disagreed with its reasoning. The court explained:
The district court concluded that the after-acquired evidence doctrine did not
apply to the January absences because AT&T was aware of Millers additional absences
at the time of her termination and therefore had the ability to evaluate that conduct as
part of an overall decision to terminate her employment. . . . This reasoning overlooks
the fact that, while AT&T was aware that the additional absences had occurred when it
terminated Miller, the Health Affairs Office had not yet determined whether those
absences were covered by the FMLA. AT&T policy therefore prohibited it from
considering those absences in deciding whether to terminate Miller. Cf. 29 C.F.R.
825.307(a)(2) (2000) (providing that an employee is provisionally entitled to
protection under the FMLA while the employer seeks a second opinion).
Perhaps recognizing this flaw in its logic, the district court noted that AT&T
should have resolved the ongoing investigation into the additional absences before
deciding to terminate Miller. . . . Such a requirement is not realistic. Indeed, in the case of
a chronically absent employee, it is entirely possible that evaluating all outstanding
requests for FMLA leave before making a decision would effectively preclude any action
by the employer.
Id. at 837. The court rejected defendants reliance on a stipulation that it would have fired the
plaintiff for absences in January and that it did not believe plaintiff was entitled to FMLA leave
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for those absences, because the stipulation did not meet the second prong of defendants burden:
to show that plaintiff was in fact not entitled to FLMA leave for those absences. The court stated:
AT&T reads too much into this stipulation. Id. at 838.
Smith v. The Berry Co., 165 F.3d 390, 395, 79 FEP Cases 52 (5th Cir.), modified in other
respects, 198 F.3d 150 (5th Cir. 1999), upheld the jury finding of liability for age discrimination
and rejected the defendants argument that after-acquired evidence that the plaintiff had tried to
tape an office meeting in violation of company policy, and by going on unapproved travel
during her medical leave. In denying Berrys post-trial motion for judgment as a matter of law,
the district court stated that the jury could have reasonably found that Berry failed to satisfy its
burden of proving that Smith would have been fired for her violations of company policy alone.
In light of the factual disputes over travel and the fact that the antirecording policy focused on
phone calls with clients, we agree with the district courts conclusion.
Dvorak v. Mostardi Platt Associates, Inc., 289 F.3d 479, 48587, 13 AD Cases 1 (7th
Cir. 2002), affirmed the grant of summary judgment to the ADA defendant. Defendant
explained plaintiffs firing by referring to plaintiffs poor performance, including his written
tirade against the company, and the discovery that he had apparently misused his company
laptop to save a confidential customer database and to send a competitor disparaging information
about defendant. Plaintiff contended that the laptop- related information was after-acquired
evidence, and could not be considered in connection with his termination, because he was fired
on April 3, 1997, when he was told to clean out his desk and take FMLA leave. Defendant
contended plaintiff was fired on May 28, 1997, after discovery of the laptop- related problems,
when it sent him an official letter of termination. Id. at 48283. The court held that the correct
date was May 28 because neither plaintiff nor defendant had treated plaintiff as fired on April 3.
The application for FMLA leave would have been fraudulent if plaintiff were no longer an
employee, and on April 28 plaintiff had written to the HR Director asking for clarification of
whether he had been fired or remained an employee. The court held that the May 28 date was
the most unequivocal notice of termination. With no competent evidence to support a
termination date earlier than May 28, the laptop misuse is not information that the employer
learned after the termination; it may thus be considered as one of Mostardi-Platts
nondiscriminatory reasons for terminating Dvorak. Id. at 487.
Rivera v. Nibco, Inc., 364 F.3d 1057, 107475, 93 FEP Cases 929 (9th Cir. 2004),
affirmed the protective order entered by the district court, barring defendant from using the
discovery process to find out the immigration status of the plaintiffs. See the discussion of this
case in Chapter 44 (Back Pay), in the section on Entitlement to Back Pay.
Crapp v. City of Miami Beach, 242 F.3d 1017, 85 FEP Cases 353 (11th Cir. 2001),
affirmed the lower courts amendment of the judgment and denial of defendants Rule 60(b)
motion. Defendant fired plaintiff for asserted misconduct. After the entry of judgment, the
Criminal Justice Standards and Training Commission of the Florida Department of Law
Enforcement suspended for two years plaintiffs certification as a law enforcement officer,
retroactive to the date of his discharge. The lower court treated the suspension as after-acquired
evidence, and vacated the back pay award and order of reinstatement, but left the compensatory-
damages award in place and held that the decertification would not affect plaintiffs
establishment of a prima facie case or the determination of liability. Id. at 1019. The court held
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that the decertification could not be considered a legitimate nondiscriminatory reason for
plaintiffs termination because it was unknown at the time. Id. at 102021. The court held that
the lower courts vacation of the back pay award and order of reinstatement, while leaving in
place the award of compensatory damages, appropriately recognized that the City could have
fired Crapp for a lawful reasonlack of certificationon the same day that it fired him for a
discriminatory reason. Id. at 1021. The court rejected defendants contention that this result was
inconsistent: The district court vacated its award of backpay and reinstatement because the
FDLEs decision precluded the City from retaining Crapp as a police officer. The FDLEs
decision does not, however, change the fact that the jury concluded that the Citys decision to
fire Crapp was a racially motivated adverse employment action for which Crapp should be
compensated. Id.
5. Inapplicability of McKennon to Predictions of Future Wrongdoing
Teahan v. Metro-North Commuter Railroad Co., 80 F.3d 50, 55, 5 AD Cases 603 (2d
Cir. 1996), held that the defendant=s use of psychiatric testimony on the likelihood of a
recurrence of plaintiff=s substance abuse went to the issue whether plaintiff was Aotherwise
qualified@ under the Rehabilitation Act and did not trigger McKennon=s limitations on the use of
after-acquired evidence.
6. Waiver of the Defense
Russell v. Microdyne Corp., 65 F.3d 1229, 1240, 68 FEP Cases 1602 (4th Cir. 1995),
held that an employer may waive the Aafter-acquired@ defense as to remedies by failing to
terminate the plaintiff immediately upon learning of the alleged misstatement or misconduct:
In this case, Russell did not suffer any immediate negative employment decision
after Microdyne=s alleged discovery of her supposed falsehoods. Absent such a
negative employment decision premised upon evidence of wrongdoing, the
defense cannot apply and the remedies available are not curtailed in any way.
Under these rather unusual circumstances, however, we do not think this is fatal
to Microdyne=s use of the defense, for the company faced a difficult situation in
which the availability of this defense was not established, and it acted in an under-
standably conservative manner, in fear of the additional liability for discrimina-
tory retaliation that might attach to its conduct. Thus, we believe that the
after-acquired evidence doctrine, as limited by the McKennon Court, might be
available in this case. We note, though, that in post-McKennon cases, an
employer's decision not to terminate a Title VII plaintiff would be dispositive on
this issue. Cf. Shattuck v. Kinetic Concepts, Inc., 49 F.3d 1106, 1108 (5th Cir.
1995) (AWe are persuaded that the pertinent inquiry, except in refusal-to-hire
cases, is whether the employee would have been fired upon discovery of the
wrongdoing . . . .@).
Hyatt v. Northrop Corp., 80 F.3d 1425, 11 IER Cases 1020 (9th Cir. 1996), applied
McKennon to a California claim of wrongful discharge in violation of public policy, based on
plaintiff=s having filed a False Claims act qui tam action. The court held that California law
would not use the after-acquired evidence doctrine to bar all recovery for a wrongful discharge,
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where the plaintiff worked for the defendant for almost five years, and had a satisfactory work
performance notwithstanding his false representations on his application. The court affirmed the
district court=s denial of the defendant=s post-trial motion to limit plaintiff=s back-pay remedy to
the time period from the date of his discharge until the date plaintiff=s misrepresentations were
discovered. The court held that the defendant waited too long to raise the defense, having failed
to assert it in a motion for summary judgment and failing to request a jury instruction. Id. at
1433 n.3.
7. Establishing That the Wrongdoing Would, if Known, Have Led to
Discharge or Other Adverse Consequences
a. Defendant Has the Burden of Persuasion
Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1168, 72 FEP Cases 657 (6th
Cir.), modified on rehearing in other respects, 97 F.3d 833, 73 FEP Cases 1359 (6th Cir. 1996),
stated that the defendant had Afailed to prove@ that it would have refused to hire the plaintiff if it
had known of the omissions and misstatements on his application form, suggesting that the
defendant had the burden of persuasion on this issue. This case is discussed below in greater
detail.
Welch v. Liberty Machine Works, 23 F.3d 1403, 1404, 3 AD Cases 385 (8th Cir. 1994), a
pre-McKennon case. involved an employee discharged a week after he informed the defendant
that he had developed a fistula requiring surgery. He sued for wrongful discharge under ERISA
and for handicap discrimination under Missouri law. In discovery, the defendant learned that
plaintiff had intentionally omitted from his application form the fact that he had worked for
another company for a month and been discharged for poor performance. The defendant=s
application form states that Aany misstatement or omission of fact on this application shall be
considered cause for dismissal.@ The defendant obtained summary judgment based on an
undisputed affidavit from the company president stating that the company would not have hired
the plaintiff if it had known of his prior employment and his discharge for poor performance, and
that the company would have terminated the plaintiff for omitting this information on his
application. The court of appeals reversed, stating that the affidavit was inadequate because the
defendant did not have the misconduct in mind at the time the challenged decision was made.
Therefore, we believe that the employer bears a substantial burden of establishing
that the policy pre-dated the hiring and firing of the employee in question and that
the policy constitutes more than mere contract or employment application
boilerplate. Liberty presented no other evidence of its policies. By itself, Maier=s
affidavit is a self-serving document and does not establish the material fact that
Liberty would not have hired Welch but for the misrepresentation. As the movant
for summary judgment, Liberty bore the significant burden of establishing that it
had a settled policy of never hiring individuals similarly situated to Welch.
Id. at 1405B06. The court stated that it was not deciding whether some undisputed employer
affidavits Acould, in some circumstances, establish the requisite material fact of a particular
employer=s policy.@ Id. at 1406.
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O=Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 759, 70 FEP Cases 615 (9th
Cir. 1996), held by a divided panel that the employer asserting an Aafter-acquired evidence@
defense has the burden of persuasion not just that it could have fired the employee for the
misconduct alone if it had known of the misconduct, but that it would have fired the employee
for this reason alone. The court rejected plaintiff=s argument that the employer=s burden should
be of Aclear and convincing@ proof, and held that the proper standard is proof by a preponderance
of the evidence. Id. at 760B61. Judge Fletcher dissented, arguing that the proof question here is
fundamentally different from that in mixed-motive cases and that the employer should be
required to prove by clear and convincing evidence that it would have fired the plaintiff for the
misconduct alone. Id. at 764B68.
Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 66 FEP Cases 340 (11th Cir. 1994),
involved a prospective employer that ran a credit check on the rejected applicant plaintiff after he
had filed an EEOC charge. The defendant argued that it had a Aclean credit@ policy, that it would
have discovered the credit problems in due course if it had proceeded with the application, and
that the plaintiff therefore could not have been injured by the discrimination. The district court
agreed and granted summary judgment. Reversing, the court of appeals pointed out that the
plaintiff had produced evidence from which a reasonable factfinder could conclude that the
company had no such policy, that the company was inconsistent in its treatment of credit
problems, and that his credit may not have been so bad as to be rejected under the employer=s
normal practices.
b. Severity of the Alleged Misconduct
Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 934B35, 72 FEP Cases 613 (5th Cir.
1996), cert. denied, 519 U.S. 1091 (1997), held that the district court did not commit clear error
in finding that an employee filled out his application form truthfully, denying that he had ever
pleaded guilty to, or been convicted of, any criminal offense excluding minor traffic violations,
because of his testimony that his parole officer had told him that his conviction would be
expunged once he completed the probation and paid restitution, and that it was not necessary for
him to notify employers of an expunged conviction. Moreover, plaintiff contended that the
Project Manager already knew of the conviction. The defendant asserted that the prior
conviction would not necessarily bar plaintiff from working for the defendant, but that
Aapplication fraud would result in that employee=s immediate dismissal.@ 90 F.3d 927, 934. The
court stated:
Even if PHP Healthcare did not have imputed knowledge of Brown=s prior
conviction, we are not convinced that Brown=s failure to include his 10 year-old
conviction on his employment application was so severe that PHP Healthcare
would have terminated him based on this after-acquired knowledge. The district
court's decision to award back pay and reinstatement does not leave us with a firm
and definite conviction that a mistake has been made and, as such, we find no
clear error.
Id. at 935.
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Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1168, 72 FEP Cases 657 (6th
Cir.), modified on rehearing in other respects, 97 F.3d 833 (6th Cir. 1996), held that the trial
court did not err in finding that plaintiff=s failure to list on his application form that a $27 utility
account had been placed for collection, his misstatement of his dates of employment with a prior
employer, and his leaving blank the reason why he had left that prior job, were Anot material.@
Plaintiff explained that he did not receive the utility bill because he had moved, and that he later
paid the bill. The court held that the district court did not commit clear error in finding that the
reason plaintiff left his job with the former employer was not because of poor performance or
because of another negative factor, because the employer had later recommended him for another
job. The plaintiff met the defendant=s requirement of two years of driving experience even
though he overstated his period of employment with the former employer. ABecause Yellow
Freight failed to prove it could have and would have refused to hire Thurman, the after-acquired
evidence defense did not apply.@ Id.
Sheehan v. Donlen Corp., 173 F.3d 1039, 1047, 79 FEP Cases 540 (7th Cir. 1999),
affirmed the judgment on a jury verdict for the Title VII pregnancy discrimination plaintiff. The
court affirmed the lower courts rejection of the defendants after-acquired evidence defense.
Donlen argued that Sheehan had falsified her job application by leaving several jobs off her
rsum and not explaining that she had been fired from one of them. The court affirmed the
lower courts finding that there had been no falsification. It found that the application and the
rsum were separate documents and the omissions were made only on the rsum, no job
history at all being provided on the application; and, moreover, that there was no evidence
Sheehan had been fired from those jobs. Id. The court affirmed the finding that there was no
evidence of causation, because no one in the history of the company had ever been fired for such
falsifying a rsum. The court stated that employers often say they will discharge employees for
particular employees, but often do not do so. that the same decision would have been justified
. . . is not the same as proving that the same decision would have been made. Id. at 1048
(citation omitted).
Kempcke v. Monsanto Co., 132 F.3d 442, 445B46, 75 FEP Cases 1403 (8th Cir. 1998),
reversed the grant of summary judgment to the defendant on plaintiff=s retaliation claim, holding
that a reasonable jury could find that the plaintiff was lawfully opposing age discrimination by
refusing to return all copies of two documents he had innocently acquired, where the documents
had caused him to be concerned over age discrimination against him and to make an enquiry of
his supervisor, and where he turned the documents over to his attorney when the supervisor gave
him a noncommittal response and told his supervisor that the company should contact his
attorney for return of the missing documents. The documents were on the hard drive of a
computer the plaintiff had been assigned to use, but which had previously been used by a high-
ranking Human Resources officer. The court distinguished this situation from that of an
employee who steals documents potentially evidencing discrimination, stating:
But when documents have been innocently acquired, and not subsequently
misused, there has not been the kind of employee misconduct that would justify
withdrawing otherwise appropriate ' 623(d) protection. Of course, employee
insubordination is ordinarily a legitimate non-discriminatory reason for adverse
action . . . and insubordination can include refusing to return confidential
employer documents. But when the insubordination consists of refusing to cease
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what a jury could find to be reasonable ADEA-protected activity, such as
retaining a document that may evidence on-going discrimination, summary
judgment dismissing a retaliation claim is not appropriate.
Id. at 446 (citation omitted). Judge Fagg dissented. Id. at 447.
Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497-98, 67 FEP Cases 1222 (9th Cir.
1995), held that equitable remedies are not barred when some of the language on an employee=s
resume may be misleading to the casual reader but did not seem seriously intended to deceive.
In this case, the plaintiff=s resume stated that he had a degree when he had satisfied all require-
ments for the degree but had not registered to receive the diploma because of cost concerns.
Ricky v. Mapco, Inc., 50 F.3d 874, 876, 68 FEP Cases 1745 (10th Cir. 1995), held that
one of the elements the defendant must prove to take advantage of the defense is that the
misconduct alleged Awas serious enough to justify discharge.@
c. Possible vs. Certain Consequences
Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 40, 66 FEP Cases 1133 (2d Cir.
1994), involved a plaintiff who had continued to hold a second job without company approval.
The company relied on its employee handbook as establishing a prohibition against holding a
second job. The district court granted summary judgment to the defendant on other issues, and
the court of appeals reversed. The court stated that it was Ahardly clear@ that defendant would be
able to prove that its policy was as strict as it maintained. The employee handbook actually
stated that the company preferred that full-time employees not engage in such employment, and
should obtain permission from a supervisor before accepting such employment. Only
employment with a competitor of the defendant was flatly ruled out.
Kristufek v. Hussman Foodservice Co., 985 F.2d 364, 369, 61 FEP Cases 72 (7th Cir.
1993), rejected the employer=s contentions that it would have fired the plaintiff if it had known of
his misrepresentations on his resume, because the principal evidence was a statement on the
application form stating that misstatements and omissions of material facts Amay be cause for
immediate dismissal.@ The court stated: A>May be= is not >will be= and is not enough to avoid the
proven charge of a retaliatory firing.@ The plaintiff=s misrepresentations as to his education also
did not involve a Acritical@ factor. 985 F.2d at 370.
d. Other Elements of the Defendants Showing
Castle v. Rubin, 78 F.3d 654, 657, 72 FEP Cases 1701 (D.C. Cir. 1996), involved a
plaintiff who prepared training manuals for the Office of the Comptroller of the Currency.
During discovery, the defendant learned that in writing her training manuals she had plagiarized
the works of other authors in violation of Federal copyright laws. The court rejected plaintiff=s
contention that termination is an excessive penalty for plagiarism, because she merely pointed to
one decision of the Merit Systems Protection Board involving the authority to reconsider the
mitigation of an employee=s removal for plagiarism to a demotion. The decision does not
explain the nature or circumstances of the plagiarism, and does not hold that termination is, as a
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matter of law, an excessive penalty for plagiarism. Id. at 659. Plaintiff was denied reinstatement
and her jury verdict for back pay was limited to a period of less than nine months.
Perkins v. Brigham & Women=s Hospital, 78 F.3d 747, 751, 70 FEP Cases 568 (1st Cir.
1996), held that the plaintiff could not use McKennon to attack the district court=s reliance on
three coworker affidavits in considering the defendants= motion for summary judgment, on the
ground that the affidavits did not exist at the time he was terminated. The court rejected this
Aanfractuous reasoning.@ It held that the information contained in the affidavits, which Acontain
lurid firsthand accounts of his unsavory conduct,@ was known to the defendants and fully
absorbed by them at the time they fired plaintiff.
Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 124B25, 72 FEP Cases 1448 (2d
Cir. 1996), cert. denied, 520 U.S. 1274 (1997), involved the demotion of plaintiff from his
position as Superintendent of Train Operations in charge of the Operations Control Center
(AOCC@) for asserted mismanagement. For the reasons discussed in Chapter 14 (The McDonnell
Douglas / Burdine / Hicks Model), the court held that a reasonable jury could find that the
defendant=s asserted reasons for the demotion were a pretext for retaliation against the plaintiff
for having provided testimony to the EEOC that in its details supported another employee=s age
discrimination claim, and in retaliation for the plaintiff=s having filed his own EEOC charge
alleging retaliation. Plaintiff admittedly lied at the end of his affidavit to the EEOC, when he
said that he did not know his supervisor=s reason for disqualifying the other employee but he did
not think it was because of the employee=s age. The defendant asserted that plaintiff=s admitted
perjury should disqualify him from an award of front pay because if he were reinstated to his
former position its officials would never know whether he was lying to them. The court did not
comment on the obvious problems with this assertion, but instead rested on two narrower
grounds. First, neither of the defendant=s affiants Astated that, if Padilla had remained as
superintendent, his making of a false statement to the EEOC would have led to his demotion for
that reason alone.@ Id. at 124. Second, there was no evidence Athat Metro-North had a policy in
which it demoted managers for making such false statements, or that a manager had ever been
demoted for this reason in the past.@ Id. at 124B25. The court affirmed plaintiff=s entitlement to
front pay.
ODay v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 759, 70 FEP Cases 615 (9th
Cir. 1996), stated: AThe inquiry focuses on the employer=s actual employment practices, not just
the standards established in its employee manuals, and reflects a recognition that employers often
say they will discharge employees for certain misconduct while in practice they do not.@ The
court observed that it was doubtful that employers would be able Ato come forward with proof
that they discharged other employees for the precise misconduct at issue.@ Id. at 762. Often, the
only proof available will be evidence of a company policy Aand the testimony of a company
official that the misconduct would have resulted in immediate discharge.@ Id. The court
cautioned that employers cannot simply rely on Abald assertions,@ id., but the testimony here is
buttressed by both a plausible reading of the company policy and common sense. Id. The
plaintiff did not contest either the misconduct he was charged with committing or the contention
that he would have been fired for engaging in such misconduct if the defendant had known of it.
The court affirmed the grant of summary judgment to the defendant on the after-acquired
evidence defense, reversed the grant of summary judgment on the entire case, and remanded the
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case for a determination of plaintiff=s ADEA claim and for the award of the limited remedies still
available.
On December 14, 1995, the EEOC issued an ENFORCEMENT GUIDANCE ON AFTER-
ACQUIRED EVIDENCE in light of McKennon. EMPLOYMENT DISCRIMINATION REPORT (BNA), vol.
5, No. 23 at 686 (Dec. 20, 1995). Enforcement Guidances are prepared by the EEOCs Office of
Legal Counsel, are voted on by the Commission, and are placed in the agencys Compliance
Manual for the guidance of EEOC employees, including investigators and conciliators. One
provision in the GUIDANCE has attracted criticism by some plaintiffs attorneys:
If no comparable past incidents are discovered, other criteria may be used in
ascertaining whether the misconduct would have prompted the employer to take the
adverse action. Such inquiries may include whether: 1) the misconduct is criminal in
nature, (e.g., embezzlement, fraud, assault or theft); 2) the employees behavior
compromised the integrity of the employers business (divulgence of trade secrets,
security, or confidential information); or 3) the nature of the employees misconduct was
such that the adverse action appears reasonable and justifiable.
Id. at 687.
ODay v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 764 (9th Cir.), held that the
district court properly granted summary judgment to the defendant on the after-acquired
evidence defense, but erred in holding that this was a complete bar to plaintiff=s ADEA claim.
8. Contentions of Excessive Employer Inquiries
There are no reported appellate decisions, within the period covered by this volume, on
this subject. We will monitor this area of the law for developments.
The EEOCs ENFORCEMENT GUIDANCE states that any purposeful attempt by a
respondent (R) to obtain derogatory information about a charging party (CP) is retaliatory,
and is one example of an extraordinary equitable circumstance that may warrant additional
relief. EMPLOYMENT DISCRIMINATION REPORT (BNA), vol. 5, No. 23 at 688. Its example
suggests that retaliatory motive can be presumed from the respondents conducting an extensive
background investigation of the charging party:
ExampleCP files a charge alleging that he was discriminatorily denied a
promotion. R launches an extensive background investigation of CP and learns that he
falsified his application. Accordingly, R fires CP. The Commission investigation reveals
that R does terminate employees who have falsified their applications. It also shows that
the failure to promote was not discriminatory. R contends that CP suffered no loss until
the termination, that the termination was for legitimate reasons and that R is not,
therefore, liable to CP. However, the Commission finds that R did not simply discover
the information in the course of investigating the charge, but purposefully sought
derogatory information about CP in retaliation for his challenging the failure to promote.
As in McKennon, reinstatement would be inappropriate because the employer
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does terminate those known to have engaged in similar misconduct. However, because
the evidence of wrongdoing was not simply unearthed during an investigation of CPs
complaint, but was deliberately sought to retaliate against CP and to discourage similar
charges, the Courts starting point for backpay cannot be the ending point. Instead this
is the kind of extraordinary equitable circumstance that warrants extending backpay to
the date the complaint is resolved. An employer who chooses to wage a retaliatory
investigation must lose the advantage of equities that would, absent the retaliation, favor
that employer, especially since retaliation is an independent violation of the federal
employment discrimination laws.
Id. The Commissions rationale for extending back pay to the date of resolution of the charge
seems to be limited to the administrative investigation, because footnote 5 states that
McKennons reliance on Rule 11 and awards of attorneys fees to protect against defendants
overzealousness are inapplicable to charge- processing and other constraints are needed. The
Commissions own rationale would not support applying its retaliation rule once the case comes
to court.
Comment by Richard Seymour on the EEOCs Enforcement Guidance: It is not
clear that this rule will have much practical effect. The key here is the EEOCs limitation of this
rule to the administrative process, which I think will severely limit its effect. Where the limitation
on relief makes a substantial difference, I expect that many respondents will simply refuse to
conciliate and will wait for the case to be filed in court and for the limitation on relief then to
become applicable. With such a limitation, the Commissions policy will primarily affect
respondents who are anxious to resolve the charge in conciliation. In the meantime,
respondents who would rather wait to be sued will still have a strong incentive to discover any
misconduct as soon as possible because the date of discovery will eventually insulate them
from the further accumulation of back pay.
Going beyond the Commissions rationale, it seems reasonable that some types of
background investigation could be so intense as to trigger the equitable considerations that
McKennon said could justify a change in the presumptive limitations on relief. For example, the
employers tapping the complainants telephone, opening and reading her mail, or having a
zealous private investigator interview her neighbors, would appear so extreme to a court or jury
that it could be easy for them to draw a reasonable inference of retaliation. Using an imprudent
private investigator, invading the plaintiffs privacy, bringing the plaintiff into disrepute among
friends or acquaintances, and similarly extreme steps, could be used in litigation to support a
claim of retaliation and may lead to the employers forfeiture of its protection.\
9. Effect of the Rule on Liquidated Damages
Wallace v. Dunn Construction Co., 62 F.3d 374, 380B81, 68 FEP Cases 990 (11th Cir.
1995) (en banc), held that after-acquired evidence does not bar a claim for liquidated damages
under the Equal Pay Act for the retaliation claim. AThe after-acquired evidence is irrelevant to
Dunn's mental state and thus does not bar these liquidated damages under the Equal Pay Act.@
Id. at 380. However, such damages are tied to back pay, and Aafter-acquired@ evidence Amay . . .
mandate an early end to the period of liquidated damages.@ Id. at 381.
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The EEOCs ENFORCEMENT GUIDANCE states that after-acquired evidence should not bar
the award of liquidated damages under the Equal Pay Act or in ADEA cases. EMPLOYMENT
DISCRIMINATION REPORT (BNA), vol. 5, No. 23 at 687 n.4, 689.
10. Effect of the Rule on Compensatory and Punitive Damages
Castle v. Rubin, 78 F.3d 654, 656, 72 FEP Cases 1701 (D.C. Cir. 1996),
affirmedCwithout discussion of this issueCa judgment for plaintiff for $75,000 in damages for
an unlawful termination, in addition to a back pay award substantially reduced because of the
defendant=s discovery that plaintiff had plagiarized the works of other authors in preparing
official training manuals for the Office of the Comptroller of the Currency. The court also
denied front pay and reinstatement to the plaintiff.
Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1231B33, 65 FEP Cases 734 (3d Cir.
1994), vacated and remanded for reconsideration in light of McKennon, 514 U.S. 1034 (1995),
reaffirmed in relevant part, 65 F.3d 1072, 68 FEP Cases 481 (3d Cir. 1995), discussed the need
to provide a remedy for discriminatory injury to dignity and self-esteem even where the victim
has lied on his or her resume as a reason why the after-acquired evidence defense should not bar
a finding of liability.
Russell v. Microdyne Corp., 65 F.3d 1229, 1241, 68 FEP Cases 1602 (4th Cir. 1995),
squarely addressed this issue:
Thus, because Russell=s complaint contains examples of unlawful activity in
1992, she would be eligible for damages, both compensatory and punitive,
resulting from actions occurring between November 21, 1991, and May 25, 1993,
regardless of whether the doctrine of after-acquired evidence applies.
The court also referred to the doctrine as dealing with an Aafter-acquired motive.@ Id. at 1237.
EEOC v. Farmer Bros. Co., 31 F.3d 891, 901, 65 FEP Cases 857 (9th Cir. 1994),
approved in dictum the decision in Massey v. Trump=s Castle Hotel and Casino, 828 F. Supp.
314, 63 FEP Cases 21 (D.N.J. 1993), holding that it would be inequitable to deny other forms of
damages to a plaintiff already penalized by denial of reinstatement and front pay.
The EEOCS ENFORCEMENT GUIDANCE states that economic damages should, like back
pay, continue only to the date of discovery. The example involves out-of-pocket costs associated
with job loss. However, the GUIDANCE states that a charging party should be able to obtain
compensatory damages for emotional harm caused by discrimination, where the resulting
emotional harm continued after a legitimate reason for the adverse action is discovered. The
GUIDANCE states that punitive damages should not be barred or limited by after-acquired
evidence and that proof of retaliation virtually always warrants punitive damages.
EMPLOYMENT DISCRIMINATION REPORT (BNA), vol. 5, No. 23 at 68889.
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11. Plaintiffs Efforts to Use the Doctrine to Bar Evidence
Teahan v. Metro-North Commuter R.R. Co., 80 F.3d 50, 5 AD Cases 603 (