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Norfolk Southern v. Sorrell
January 10, 2007 by Ross Runkel at LawMemo
In a FELA case the employer's negligence and the employee's contributory negligence are judged by the same causation standard. The Supreme Court said so today.
Norfolk Southern Railway Co. v. Sorrell (US Supreme Court 01/10/2007)
And what is that standard? The Court refused to say.
In an otherwise boring case, the Court spent three pages explaining that Norfolk Railway tried to "smuggle" in a new issue that was not covered by the grant of certiorari.
Norfolk petitioned the Court to decide whether the same standard of negligence must apply to both plaintiffs and defendants. Once at the Court, Norfolk pushed for a decision on what that standard should be.
Unimpressed, the Court said "Norfolk is not only enlarging the question presented, but taking a position on that enlarged question that is contrary to the position it litigated below." Ouch. Don't do that.
The certiorari petition presented a more limited question, and that is the question the Court decided. No more.
Four Justices wrote two concurring opinions expressing the view that the standard is well settled by previous decisions.
My view: Correct decision. As I said elsewhere, "I can't see why any of the Justices would disagree" that the standards are the same. Norfolk Southern Railway Co. v. Sorrell - preview and prediction.
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Supreme Court takes up "cat's paw" case
January 06, 2007 by Ross Runkel at LawMemo
It's called "cat's paw." A human resources manager decides to fire an employee she doesn't know, based mainly on information from a supervisor. The supervisor has a history of racism. So the question is whether the employer is insulated from liability because the manager didn't know the employee was black.
The case: BCI Coca-Cola Bottling Co v. EEOC, certiorari granted January 5, 2007. [Details, case below, etc.]
EEOC claimed that BCI discharged Stephen Peters in violation of Title VII. The trial court granted summary judgment for BCI; the 10th Circuit reversed. The US Supreme Court granted certiorari to review the 10th Circuit decision.
BCI discharged Peters, who is black, for insubordination. EEOC claimed that BCI discriminated on the basis of race because similarly situated white and Hispanic employees were treated less harshly. The discharge decision was made by a human resources manager based on information provided by Peters' immediate supervisor plus a review of Peters' personnel record. The HR manager did not know Peters was black. The supervisor not only knew Peters’ race but allegedly had a history of treating black employees unfavorably and making disparaging racial remarks in the workplace.
The formal Question Presented in the Supreme Court is:
"Under what circumstances is an employer liable under federal anti-discrimination laws based on a subordinate’s discriminatory animus, where the person(s) who actually made the adverse employment decision admittedly harbored no discriminatory motive toward the impacted employee."
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Paycheck discrimination and the Supreme Court
November 27, 2006 by Ross Runkel at LawMemo
Ledbetter v. Goodyear Tire & Rubber Co is being argued at the US Supreme Court today. [Details, briefs]
Lilly Ledbetter retired after 19 years at the Goodyear company. Then she claimed her employer paid her a smaller salary than it paid male co-workers because of her sex. Her periodic paychecks were based on annual salary reviews.
A jury awarded damages to Ledbetter based on a series of salary decisions going back 19 years.
The 11th Circuit reversed and ordered that Ledbetter's complaint be dismissed.
The problem was with the statute of limitations, which requires an employee to file an EEOC charge within 180 days after an alleged Title VII violation "occurred."
The 11th Circuit held that her claim was time barred because she could not prove intentional discrimination in either (1) the one decision during the limitations period or (2) the last decision preceding the limitation period.
The 11th Circuit said: "We conclude that in the search for an improperly motivated, affirmative decision directly affecting an employee's pay, the employee may reach outside the limitations period created by her EEOC charge no further than the last such decision immediately preceding the start of the limitations period. We do not hold that an employee may reach back even that far; what we hold is that she may reach no further."
My view: It's hard to see how Ledbetter can win this one.
The case really turns on when a violation occurs. Typically this is when the employer has made a decision and then acted on that decision. Once a violation occurs, then the employee has 180 days to file.
I think there are three logical choices for how the Title VII statute of limitations works in the case of paychecks:
- A violation occurs when the employer makes a decision, and if the employee does not file a charge within 180 days of the decision then no future claim can be based on that decision. That's Goodyear's view.
- A violation occurs with each paycheck, and the employee can claim that the amount of each paycheck was based on discriminatory decisions made years ago. That's Ledbetter's view.
- A violation occurs when the employer makes a decision and the decision is communicated to the employee, typically by way of the next paycheck. This is the view advanced by the United States in its amicus brief.
#3 is the way the statute of limitations works in cases involving discharge, failure to hire, failure to promote. I think it works the same way here. Ledbetter says there should be a different approach for paychecks. If so, the statute needs to be reworded.
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What about "at will" did you not understand?
August 03, 2006 by Ross Runkel at LawMemo
The contract said the job was "at will" meaning the employer "has the right to terminate your employment at any time."
The employee thought he could be fired "at any time" but not "for any reason."
Some lower California courts thought so too.
In Dore v. Arnold Worldwide Inc (California 08/03/2006) the contract said:
"Please know that as with all of our company employees, your employment with Arnold Communications, Inc. is at will. This simply means that Arnold Communications has the right to terminate your employment at any time just as you have the right to terminate your employment with Arnold Communications, Inc. at any time."
The employee tried to introduce evidence of oral representations, conduct, and documents that led him to reasonably understand that he would not be discharged except for cause. In other words, he claimed there was an implied-in-fact agreement that that he would not be discharged except for cause.
Lower California courts have been split on the question of whether a contract providing for termination "at any time" is susceptible to an interpretation allowing for the existence of an implied-in-fact agreement that discharge will occur only for cause.
The California Supreme Court held that the written contract was unambiguous, and that the term "at will" in an employment contract means "at any time without cause." Therefore, the "at will" provision could not be overcome by evidence of a prior or contemporaneous implied-in-fact contract requiring good cause.
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Direct versus circumstantial evidence
July 13, 2006 by Ross Runkel at LawMemo
I've thought for a long time that courts place too much emphasis on a supposed distinction between "direct" evidence and "circumstantial" evidence.
Now Judge Posner takes on this distinction in Sylvester v. SOS Children's Villages (07/12/2006).
He says it's "vague."
He says it's "irrelevant to assessing the strength of a party's case."
Take heed, all ye who practice in the 7th Circuit.
Take heed, all ye who practice anywhere.
Jottings By An Employer's Lawyer has a nice discussion of this case: If You've Ever Been Taken to Task By Judge Posner ...
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Burden of proof in disparate impact case
March 04, 2006 by Ross Runkel at LawMemo
Circuit court are split 3-1 on whether it is the plaintiff (employees) or defendant (employer) who has the burden of proof on the issue of the availability of a less discriminatory alternative employment practice in a disparate impact case.
The latest entry is IBEW v. Mississippi Power & Light (5th Cir 03/02/2006), holding that the burden is on the plaintiff.
Basic facts:
- The union demonstrated that the employer had an employment practice that had a disparate racial impact on African-American employees. The employment practice was the method setting cutoff scores on a validated standardized test.
- The employer demonstrated that its practice was both "job related" and "consistent with business necessity."
- Neither party made a showing that there was or was not an alternative selection device that would have a lesser racial impact and also serve the employer's legitimate interest.
The statute is part of the Civil Rights Act of 1991: 42 USC Section 2000e-2(k)(A)(ii):
An unlawful employment practice based on disparate impact is established ... only if --(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or
(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.
My view: The burden of proof is on the plaintiff.
The statute gives the plaintiff two ways to go, separated by the word "or." The plaintiff failed under subsection (i) because the employer did shoulder its burden of proving that the practice was "job related for the position in question and consistent with business necessity."
Therefore, the case moved to subsection (ii), which leaves no doubt that the burden is on the plaintiff. How could the language be more plain?
The circuit courts are split on this issue. The 3rd and 11th Circuits have held that the burden is on the plaintiff. The 8th Circuit has held that the burden is on the defendant.
Read more about this case, the circuit court split, and the possibility of this issue going to the US Supreme Court at Michael Fox's Jottings By An Employer's Lawyer.
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ADA - Medical evidence not needed at summary judgment stage
July 11, 2005 by Ross Runkel at LawMemo
You would think an ADA plaintiff would need to have some medical evidence. In the 9th Circuit it's not needed at the summary judgment stage. Head v. Glacier Northwest (9th Cir 07/06/2005).
Matthew Head sued his former employer under the Americans with Disabilities Act (ADA). The court came out with three items:
- Medical evidence is not needed at the summary judgment stage. The court held that "Ninth Circuit precedent does not require comparative or medical evidence to establish a genuine issue of material fact regarding the impairment of a major life activity at the summary judgment stage." The court noted that "our precedent supports the principle that a plaintiff's testimony may suffice to establish a genuine issue of material fact." The court also noted, however, that "[w]e hasten to add that our holding in no way impugns our longstanding precedent that conclusory declarations are insufficient to raise a question of material fact .... an affidavit supporting the existence of a disability must not be merely self-serving and must contain sufficient detail to convey the existence of an impairment."
- Reading is a major life activity. Noting that the 9th Circuit had not previously addressed the issue, the court held that "reading is a major life activity." Noting additionally that the 2nd Circuit has come to the same conclusion, the court reasoned "[t]he ability to read is necessary in many instances to perform major life activities such as caring for oneself, learning, and working."
- "Motivating factor" adopted. The court held that the appropriate standard for establishing causation in ADA cases is provided by the "motivating factor" standard. Agreeing with seven other circuits, the court concluded that the "sole cause" standard is inapplicable under the ADA. The court reasoned that "a 'motivating factor' standard is most consistent with the plain language of the statute and the purposes of the ADA."
My view:
- Going to court without medical evidence seems minimalist, if not dangerous. I would want to have some, especially at the trial stage where the jury will want to have something more tangible than the plaintiff's testimony.
- Of course reading is a major life activity.
- "Motivating factor" rather than sole cause is the right standard.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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