Gross Isn't Too Gross

In Eunice v. Valley View Local Schools, the Sixth Circuit Court of Appeals (Gibbons, J.) held that Gross's preclusion of mixed-motive claims does not apply to FMLA retaliation claims. Specifically, because the FMLA does not contain the ADA's "because of," but instead, in regulation 29 CFR s. 825.220(c) (promulgated by the Department of Labor), uses less stringent words like "negative factor," the Court held that "the FMLA, like Title VII, authorizes claims in which an employer bases an employment decision on both permissible and impermissible factors." (It may be problematic that the Court relied upon regulations, and not the text of the statute. This may explain why the Court went out of its way to note that it had already found the regulation in question to be "reasonable" and "entitled to deferential judicial review.") As such, "if Hunter has presented evidence to establish that Valley View discriminated against her because of her FMLA leave, then the burden shifts to Valley View to prove by a preponderance of the evidence that it would have made the same decision absent the impermissible motive." The Court ultimately reversed the trial court's grant of summary judgment for Defendant. An extension of Gross to FMLA retaliation claims would have favored employers because it would have required employees to demonstrate that the impermissible motive was the "but for" cause of the employment action.

Click here for a copy of the Court's decision.
Click here for a copy of the FMLA.
Click here for a copy of the regulation.

Retroactive Application? -- NO

In Milholland v. Sumner County, the Sixth Circuit Court of Appeals (Rogers, J.) held that the ADA Amendments Act of 2008 does not apply retroactively. According to Judge Rogers "there is nonetheless a well-settled presumption against application of . . . new statutes that would have genuinely retroactive effect." According to Judge Rogers "Congress can only retroactively overturn that interpretation when its intent to reach conduct preceding the corrective amendment . . . clearly appears." Not so with the ADA Amendments Act of 2008, so no retro.

In Milholland this made all the difference. Milholland was pursuing a "regarded-as" claim (related to her arthritis) under the ADA. Prior to the Amendments, Milholland would have had to establish that her employer regarded her as having an impairment that substantially limits one or more of her major life activities. After the Amendments, her burden is lowered as she would only have to establish that her she was subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

Milholland couldn't establish that her employer regarded her as having an impairment that substantially limits one of her major life activities and the Sixth Circuit affirmed the district court's grant of summary judgment for the employer.

Click here for a copy of the opinion.

Hostile Work Environments -- The Pushed Envelope

Ingrid Reeves was subject to a hostile work environment. As a transportation sales representative at C.H. Worldwide, Ms. Reeves heard her co-workers call women "cunts," "fucking whores," and "fucking bitches." None of this was directed at Reeves. This did not cause the 11th Circuit to pause because "a plaintiff can prove a hostile work environment by showing severe or pervasive discrimination directed against her protected group, even if she herself is not individually singled out in the offensive conduct." Specifically, "[i]t is enough to hear co-workers on a daily basis refer to female colleagues as 'bitches,' 'whores,' and 'cunts,' to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: 'and you are a bitch too.'" The Court cites cases from the 4th, 2nd, and 7th Circuits to support its finding that the conduct need not be directed specifically at plaintiff, so long as it is directed at plaintiff's protected class. (A cleaner way to make this argument may be to state that the conduct is unwelcome because of the plaintiff's sex.)

The Court quickly disposed of the Employer's claim that "Reeves's co-workers used the terms 'bitch' and 'whore' to refer to both men and women and that, therefore, these terms cannot themselves be gender-specific" because they are gender-specific and because "[c]alling a man a 'bitch' belittles him precisely because it belittles women."

As an initial matter, employers should control their workplace so this type of conduct does not occur. But, more importantly, Reeves reveals the importance of taking complaints seriously. Indeed, Reeves complained to her branch manager on at least five separate occasions, the Director of Branch Operations, and the Vice President. The branch manager was no help and, in fact, too called women "bitches." The other two promised one-on-one meetings but cancelled. In short, the employer knew, or had reason to know, and did nothing. This allowed Reeves to state a viable hostile work environment claim.

Message to employers: take complaints seriously and follow up to remedy the situation. Failing to do so is not only a bad business practice (as it allows hostile work environments to fester) but also exposes employers to liability.

Click here for a copy of the Court's opinion.

Twombly and Iqbal Attack

In Kasten v. Ford Motor Company, Judge Victoria A. Roberts provided good law for employers regarding whether Twombly and Iqbal apply to employment discrimination cases. Judge Roberts rejected Plaintiffs' claim that Swierkiewicz v. Sorema N.A. governs pleading in employment discrimination claims, pointing out that according to Iqbal the Twombly standard applies to "all civil actions."

Perhaps the most helpful distinction in Iqbal, and pointed out by Judge Roberts, is that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." According to Iqbal, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

No harm no foul in Kasten, however, as two weeks after Judge Roberts's opinion, Plaintiffs amended their complaint which must have been sufficiently plead as it went unchallenged. This raises an interesting question as it seems, under most circumstances, courts will allow plaintiffs to re-plead. In that sense, it seems plaintiffs' attorneys will have to do more due diligence prior to filing and defendants will be able to dismiss meritless claims without having to engage in discovery. In that sense, importantly, Twombly and Iqbal prevent plaintiffs' attorneys from using the discovery process to uncover merit for the meritless.

Click here for a copy of Twombly.

Click here for a copy of Iqbal.

What Are FMLA'ers Entitled To & How Far Does Gross Go?

In Harris v. Metro Gov't of Nashville, Judge Guy, writing for the Sixth Circuit Court of Appeals provides helpful precedent for employers regarding FMLA interference claims. Specifically, Harris draws the helpful distinction regarding exactly what benefits employees are entitled to upon return from FMLA leave. (In Harris's case, he claimed he was entitled to a supplemental stipend for coaching the high school basketball team which he did not qualify for because of his leave.) According to the Court, "[i]nterference with an employee's FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct. "

The Court also clarified that, despite FBL v. Gross, plaintiffs can still utilize the McDonnell Douglass framework to establish disparate treatment claims under ADEA based on circumstantial evidence. Nonetheless, as compelled by Gross, "[t]he plaintiff retains the ultimate burden of proving that 'age was the but-for cause of the employer's adverse action.'"

Click here for a copy of the Court's opinion.

Click here for a copy of Gross.

The Retaliation Anomaly

The 10th Circuit Court of Appeals, in Robinson v. Cavalry Portfolio Services reversed a jury verdict for Plaintiff, and ordered the lower court to grant Defendant's motion for a directed verdict on, among other things, that she was retaliated against for her opposition to a Title VII violation.

Robinson was a participant in a racially-charged conversation with a co-worker named Torres. She is white and her husband is black, and the conversation covered why she dated black men, why she didn't date white men, and included the N-word. Robinson's co-worker, and not Robinson, reported the incident. Defendant interviewed Robinson about the incident. Plaintiff said she felt the conversation was inappropriate, that she was offended by his language, and that his comments were racist. Two days later the offensive employee was terminated for excessive tardiness. Robinson claims she was discriminated against because she complained about Torres's comments.

The Court felt the conduct in question had not risen to the level required in order to sustain a retaliation claim. (The Court did correctly note that, according to Crawford v. Metro Gov't of Nashville, it was of no consequence that Robinson did not actually report the conduct.) In fact, according to the Court, Robinson's conduct was not "opposition" because "[n]o reasonable person could have believed that the single Torres incident violated Title VII's standard," and, as such, Robinson "misperceive[d] what constitutes an unlawful 'employment practice.'" (The Court likely would have held that Robinson suffered no adverse employment action given its discussion in connection with her racial discrimination claims.)

Robinson v. Calvary reaffirms an anomaly. Specifically, employees are not protected from retaliation when employees oppose practices that have not risen to the level of unlawful practices.

Click here for a copy of the Court's opinion.

Click here for a copy of Crawford.

Termination and Employer Missteps

Brenna Lewis worked in a front desk position at Heartland Inns. In that capacity, Lewis received good performance reviews and at least one positive customer comment. Lewis was eventually promoted to the "A Shift," a premium shift from 7:00 am to 3:00 pm. Shortly after starting the A Shift, Barb Cullinan, Defendant's Director of Operations, saw Ms. Lewis and wasn't pleased. In fact, she called Lewis's manager and said Lewis was not a "good fit," that Lewis lacked the "Midwestern girl look," and that the front desk staff should be "pretty." Cullinan subsequently ordered a second interview of Lewis. Cullinan also installed video equipment to view interviewees. To her surprise, Lewis knew about Cullinan's comments and, at the interview, mentioned that she felt the new second interview requirement was illegal. In the interview, Lewis, in addition to questioning the legality of the second interview, made some suggestions to Cullinan regarding Defendant's business practices. Three days later, Lewis was fired.

On January 21, 2010, the Eighth Circuit Court of Appeals reversed the district court's grant of summary judgment to defendant on Lewis's retaliation and gender stereotyping claims. According to the Eighth Circuit, the district court improperly required Lewis to produce evidence that she was treated differently than similarly situated males in order to satisfy the fourth prong of the McDonnell Douglas test. Instead, Lewis was permitted to rely on evidence of pretext or evidence of discriminatory comments (both of which Lewis was able to establish.)

The Court also reaffirmed the validity of gender stereotype claims quoting Smith v. City of Salem, Ohio, "[a]fter Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex." The takes aim at gender stereotyping claims, while noting that Price Waterhouse was a mere plurality, "[a]pparently, the majority would hold that an employer violates Title VII if it declines to hire a female cheerleader because she is not pretty enough, or a male fashion model because he is not handsome enough, unless the employer proves the affirmative defense that physical appearance is a bona fide occupational qualification." As this demonstrates, the fight over gender stereotyping claims rages on.

The Court also reinstated Lewis's retaliation claim reiterating that "[i]n making out a prima facie retaliation claim, Lewis need not prove the merits of the underlying claim of sex discrimination. She can establish protected conduct 'as long as [she] had a reasonable, good faith belief that there were grounds for a claim of discrimination." According to the Court, Lewis's knowledge that she was possibly the only one subject to the second interview, that Cullinan had made sexually-charged comments, and her statement that such conduct was illegal meant she had engaged in "protected conduct, including opposition to an action prohibited by Title VII."

The facts of Lewis reveal two important missteps taken by the employer: it failed to follow its normal termination procedures and its reason for termination was based on interview at which only Lewis and Cullinan were present. To wit, when analyzing whether Lewis had established that Defendant's reason for terminating Lewis was pretextual, the Court noted that "Lewis and Cullinan, the only two individuals in the room, portray the encounter in starkly different terms. On summary judgment we must construe the conversation in the light most favorable to Lewis, however.

In short, don't engage in gender stereotyping. The words "he's not masculine enough" or "she's not feminine enough" should not be in employers' vocabularies. Additionally, don't base a termination on an interview at which only the employer and the employee are present. This is almost certain to generate a question of fact. Finally, follow procedures. If you don't, you are asking for unfavorable inferences.

Click here for a copy of the Court's opinion.