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Topic: "Proof" | Main

EEOC can use Teamsters-style pattern-or-practice theory under Title VII § 706
November 10, 2012 by Ross Runkel at LawMemo

Serrano sued in a class action claiming sex discrimination and the EEOC intervened. The trial court ruled for the employer on a number of issues; the 6th Circuit reversed. Serrano and EEOC v. Cintas Corp (6th Cir 11/09/2012).

The main issue was whether EEOC could pursue a pattern-or-practice style claim pursuant to § 706 of Title VII.

The employer argued that under § 706 the EEOC is limited to proving its allegations of discrimination pursuant to the McDonnell Douglas Corp v. Green, 411 US 792 (1973), burden-shifting framework, and cannot use the pattern-or-practice framework announced by the Supreme Court in Teamsters v. United States, 431 US 324 (1977). The court rejected that argument. Even though the Teamsters case arose under § 707, the theory of that case can be used under § 706.

The trial court erred in holding that the employer was entitled to judgment on the pleadings in light of the EEOC's failure to plead its intent to rely on the Teamsters framework. Although the EEOC's complaint "is not a model of good lawyering," a plaintiff need not indicate at the pleading stage which circumstantial evidentiary framework it plans to use.



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US Supreme Court: Does FELA require proof of proximate causation?
November 29, 2010 by Ross Runkel at LawMemo

Today the US Supreme Court granted certiorari in CSX Transportation v. McBride. [Details; briefs]

The issue: Whether the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60, requires proof of proximate causation.

McBride sued under the Federal Employers’ Liability Act (FELA) seeking compensation for an injury that he sustained while performing switching operations for his employer. The 7th Circuit upheld a jury verdict in McBride's favor.

The trial court instructed the jury that “Defendant ‘caused or contributed to’ plaintiff’s injury if defendant’s negligence played a part - no matter how small - in bringing about the injury.”

In approving this instruction, the 7th Circuit held that common law proximate causation is not required to establish liability under FELA.

The US Supreme Court granted certiorari to review the 7th Circuit judgment.

Oral arguments will be scheduled for early 2011.



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Petitioner's brief in Gross v. FBL Financial
January 26, 2009 by Ross Runkel at LawMemo

The issue before the US Supreme Court is: "Must a plaintiff present direct evidence of discrimination in order to obtain a Mt. Healthy mixed-motive instruction in a non-Title VII discrimination case?"

Ever since Congress amended Title VII in the Civil Rights Act of 1991 with the intent of overruling Price-Waterhouse v. Hopkins, 490 US 228 (1989), many have wondered what the Supreme Court would do in a non-Title VII case.

In Price-Waterhouse, a plurality of the United States Supreme Court set forth the analysis applicable to "mixed motive" cases. Justice O'Connor's concurring opinion in that Title VII case is generally seen as the controlling opinion setting forth the governing rule of law. Under that analysis, in order to be entitled to a mixed-motive jury instruction, an employee must produce "direct evidence."

However, the Civil Rights Act of 1991 superseded Price-Waterhouse by making "motivating factor" (rather than "direct evidence") the touchstone for mixed-motive analysis for Title VII discrimination cases.

But what about ADEA cases, such as Gross v. FBL Financial [Details], now pending before the Court?

Today the petitioner, Jack Gross, filed his brief on the merits. Counsel of record Eric Schnapper of the University of Washington School of Law argued it exactly the way I would have - asking the Court to treat this like an ordinary run-of-the-mill evidence case in which the ordinary rules should apply.

Here's an outline of Petitioner's brief: [Full text of brief]

I. The ADEA Should Not Be Construed To Impose Any Elevated Evidentiary Standard In The Absence of An Express Statutory Direction

II. The Imposition of Elevated Evidentiary Requirements Should Be Made by Congress

A. Congress Should Determine When The Conventional Standards of Proof Should Be Modified

B. Congress Should Determine What Evidentiary Standard Should Be Substituted for The Conventional Standards

III. Special Evidentiary Standards Would Impede Enforcement of The ADEA

IV. A Direct Evidence Requirement Is Not Supported by This Court’s Decision In Price Waterhouse

V. The Decision of The Court of Appeals Is Based On A Misunderstanding of The Relationship Between Price Waterhouse and McDonnell Douglas



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Will the Lilly Ledbetter Act of 2009 really matter? Ask George Jackson.
January 15, 2009 by Ross Runkel at LawMemo

George Jackson sued claiming that the City of Chicago discriminated against him by denying him two promotions. Jackson v. City of Chicago (7th Cir 01/13/2009)

He failed in his attempt to prove that he was as qualified as the two persons who were selected for the promotions, so he lost his case.

George asserted, however, that the reason he was less qualified was because of some prior discrimination that denied him important training that had been provided to the others.

The problem with that claim was that this alleged prior discrimination took place so long ago that the statute of limitations had run.

The court relied on Ledbetter v. Goodyear Tire & Rubber Co., 129 S.Ct. 2162 (2007). Under that case, George cannot argue that the real impact of the alleged prior discrimination was being felt at a later time.

To put it another way, there were really two limitations periods: One for the old alleged denial of training, and another for the later alleged discrimination in promotion. Because George never filed a claim regarding the older event, he cannot now claim that it had an impact on his current difficulties.

Will the Lilly Ledbetter Act of 2009 change that? Oh, yes, it will. No it will not, because the new Act will apply only to discrimination in compensation.



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Direct evidence needed for mixed motive analysis?
December 10, 2008 by Ross Runkel at LawMemo

The US Supreme Court will decide whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.

The Court granted certiorari on December 5 in Gross v. FBL Financial Services, Inc. (Docket No. 08-441) [Details]

The Court is reviewing the judgment of the 8th Circuit in Gross v. FBL Financial Services, Inc. (8th Cir 05/14/2008)

Gross sued the employer, asserting an age discrimination (discriminatory demotion) claim under the Age Discrimination in Employment Act (ADEA). Gross prevailed after a jury trial. The 8th Circuit reversed.

In Price-Waterhouse v. Hopkins, 490 US 228 (1989), a plurality of the United States Supreme Court set forth the analysis applicable to "mixed motive" cases. Justice O'Connor's concurring opinion in that Title VII case is generally seen as the controlling opinion setting forth the governing rule of law. Under that analysis, in order to be entitled to a mixed-motive jury instruction, an employee must produce "direct evidence."

Subsequently, Title VII was amended by the Civil Rights Act of 1991 via the addition of 42 USC Section 2000e-2(m). Section 2000e -2(m) superseded Price-Waterhouse by making "motivating factor" (rather than "direct evidence") the touchstone for mixed-motive analysis for Title VII discrimination cases.

The 8th Circuit held that "Section 2000e-2(m) does not apply to claims arising under the ADEA." The court reasoned that "[b]y its terms, the new section applies only to employment practices in which 'race, color, religion, sex, or national origin' was a motivating factor." The 8th Circuit noted "[w]hen Congress amended Title VII by adding Section 2000e-2(m), it did not make a corresponding change to the ADEA, although it did address the ADEA elsewhere in the 1991 Act." Since the jury in Gross' case was instructed consistent with Section 2000e-2(m) rather than Price-Waterhouse, the 8th Circuit reversed.

Oral argument will be scheduled for sometime in 2009, with a decision expected to follow in the Spring.

My view: It makes no sense to require so-called “direct” evidence, because nobody really knows what that means, and the ADEA makes no mention of it. I think any type of evidence will do, whether or not it gets categorized as “direct evidence.”



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Mixed-motive under the ADEA
May 16, 2008 by Ross Runkel at LawMemo

Gross v. FBL Financial (8th Cir 05/14/2008) holds that in ADEA cases the 1989 decision in Price-Waterhouse v. Hopkins, 490 US 228, controls how the jury should be instructed regarding the employer's mixed-motive.

It is error to use the Title VII "motivating factor" test that was added to Title VII (but not added to the ADEA) by the Civil Rights Act of 1991: 42 USC Section 2000e-2(m).

Gross sued the employer, asserting an age discrimination (discriminatory demotion) claim under the Age Discrimination in Employment Act (ADEA). Gross prevailed after a jury trial, but the 8th Circuit reversed.

In Price-Waterhouse v. Hopkins, 490 US 228 (1989), a plurality of the United States Supreme Court set forth the analysis applicable to "mixed motive" cases. Justice O'Connor's concurring opinion in that Title VII case is generally seen as the controlling opinion setting forth the governing rule of law.

Under that analysis, in order to be entitled to a mixed-motive jury instruction, an employee must produce "direct evidence."

Subsequently, Title VII was amended by the Civil Rights Act of 1991 via the addition of 42 USC Section 2000e-2(m). Section 2000e -2(m) superseded Price-Waterhouse by making "motivating factor" (rather than "direct evidence") the touchstone for mixed-motive analysis for Title VII discrimination cases.

The 8th Circuit held that "Section 2000e-2(m) does not apply to claims arising under the ADEA." The court reasoned that "[b]y its terms, the new section applies only to employment practices in which 'race, color, religion, sex, or national origin' was a motivating factor." The court noted "[w]hen Congress amended Title VII by adding Section 2000e-2(m), it did not make a corresponding change to the ADEA, although it did address the ADEA elsewhere in the 1991 Act."

Because the jury in Gross' case was instructed consistent with Section 2000e-2(m) rather than Price-Waterhouse, the 8th Circuit reversed.



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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:

  1. 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.
  2. 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.
  3. 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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