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September 4, 2007 - Vol. X No. 35
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Table of Contents
1. Title VII race and retaliation action brought by three plaintiffs. Two legal issues of interest. First, an employer's mistake is not evidence of pretext if based on an "honest belief," but in the Sixth Circuit the "honest belief" must be "reasonably based on particularized facts." Second, the employer's failure to produce attendance records of a white employee results in the court drawing an adverse inference as to what those records would have shown.
Clay v. United Parcel Service, Inc., - F.3d - (6th Cir. August 31, 2007)
This is a Title VII race discrimination and retaliation action brought by three African American UPS employees.
With respect to plaintiff Marie Moss, she alleges the district court erred in granting summary judgment on her disparate treatment claim and hostile work environment claim. Moss worked at the UPS center in Akron, Ohio. In 1999 or 2000, she learned that UPS was going to build another facility in Wadsworth, Ohio. Under the collective bargaining agreement ("CBA"), employees at a facility whose jobs might be affected by the opening of a new facility were entitled to bid on part-time positions at the new facility by signing up on an "intent sheet." Moss was interested in the part-time position of customer-counter clerk at the new Wadsworth facility. However, the intent sheet that was posted at the Akron facility was taken down before Moss signed up. There were actually two part-time customer-counter clerk positions at the new Wadsworth facility. Both positions were given to white employees. UPS claims that one of the positions was for employees at the Akron facility and the other position was for employees at the Middleberg Heights facility. Furthermore, UPS claims Moss did not receive the position available to Akron employees because she did not sign the intent sheet. Moss alleges that UPS deviated from its normal practice concerning how long the intent sheet was posted. But even if UPS did not follow normal procedures, there is no evidence UPS knew that Moss wanted to sign up and hence no evidence that the deviation from company policy was due to discriminatory intent. With respect to the other available position, UPS claims that that position was reserved for employees at the Middleberg Heights facility. While that justification would have constituted a non-discriminatory reason, UPS failed to provide any evidence that would support this contention. Therefore, the court reverses the grant of summary judgment as to the "Middleberg Heights" position.
Moss also alleges that she was subjected to a hostile work environment based on race, but the court reviews her allegations and finds that they are not sufficiently severe or pervasive to constitute a hostile work environment.
Next, with respect to plaintiff Olin Clay, he was eligible to be trained at driving triples, which are large, triple-trailer, semi-trucks. Drivers of triples earn one dollar more per hour. On June 5, 2000, Clay had a confrontation with Joe Rudnicki, the Feeder Driver Manager. Then when it became Clay's turn to the trained, Rudnicki stopped providing training without explanation. Clay filed a grievance and he was provided the training. Clay alleges that the delay in providing him training was based on his race. The court agrees with Clay that the delay in training (which delayed his ability to earn an additional $1.00 per hour) is an adverse employment action. Also, Clay presented sufficient evidence -- for purposes of establishing the fourth prong of the prima facie case -- that white employees were treated more favorably because the training stopped when it was Clay's turn to be trained. With respect to the issue of pretext, UPS claimed that it had hired 40 new feeder drivers who had to be trained first. Clay presented sufficient evidence of pretext in two ways. First, he called into question whether UPS was training 40 new feeder drivers. Second, he presented evidence of shifting proffered reasons. UPS's first proffered reason for not training Clay was that it had made a mistake -- as opposed to its later reason that it was busy training new feeder drivers. Therefore, this disparate treatment claim survives summary judgment.
With respect to his retaliation claim, Clay was terminated in a letter dated September 26 for the purported reason that he had been absent for three days without reporting to work. But Clay, who had been absent for medical reasons, could not have returned to work until September 25. Therefore, as of September 26, the most days he could have been absent without leave was two. UPS's policy provides that an employee who is absent for three days without leave may be terminated. The district court granted summary judgment on the basis that even if UPS was mistaken as to how many days Clay had been absent, it had an "honest belief" that its proffered reason for Clay's termination was legitimate. But the Sixth Circuit points out that the district court applied the "honest belief" rule adopted by the Seventh Circuit. This was a mistake because the Sixth Circuit has previously adopted a variation of the Seventh Circuit rule that requires a showing that the honest belief was "reasonably based on particularized facts." UPS failed to make that showing and therefore the retaliation claim survives summary judgment.
Finally, with respect to plaintiff Marcus Miller, he alleges discriminatory termination. On May 17, 1999, after serving a twenty-five day suspension, he was returned to work on the evening shift (as opposed to his previous morning shift). Because working the evening shift interfered with his other part-time job, his supervisor agreed he could be scheduled off until he could return to morning shift -- but he had to call in each day. When he called in on November 11, 1999, he was told he had been terminated. The following day he received a certified letter from UPS notifying him of his termination based on an alleged unauthorized leave of absence. On November 16, he received a certified letter from UPS dated November 5 stating that he had until November 10 to call UPS and provide documentation justifying his absence. Based on the date of receipt and a post office stamp on the certified mail receipt -- both of which were November 16 -- there is evidence that the letter was not mailed until after the time provided for calling UPS. A jury could infer from this sequence of events that UPS's motivation for termination was not Miller's absences. Also, UPS failed to produce attendance records for a white employee who may have been similarly situated. The district court should have drawn an adverse inference against UPS for its failure to turn over the attendance records. Therefore, this claim survives summary judgment. Finally, with respect to the retaliation claim, Miller alleges that he was terminated for filing an EEOC charge. But the temporal proximity of six months between his engagement in protected activity and the adverse employment action is not sufficient to establish a causal link.
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2. In this Title VII failure to promote action, the court explains "that a plaintiff's own opinions about [his] work performance or qualifications do not sufficiently cast doubt on the legitimacy of [his] employer's proffered reasons for its employment actions."
Brown v. Illinois Dept. of Natural Resources, - F.3d - (7th Cir. August 27, 2007)
Facts: This is a Title VII race discrimination action alleging failure to promote and retaliation. Jerry Brown, who is black, is employed by the Illinois Waste Management and Research Center. He was hired as a Manufacturing Process Engineer at the assistant professional scientist payroll level. He sought numerous promotions that he did not receive. He received mixed performance reviews and had problems interacting with co-workers and clients. At one point in 2000, he was placed on probation. He passed his probationary period in March of 2001. He filed several administrative charges alleging discrimination and retaliation before bringing this lawsuit.
District court: The district court granted summary judgment on behalf of the employer.
Appeal: Brown alleges several instances of failure to promote. Since a failure to promote is a discrete act, the plaintiff must file an EEOC charge within 300 days of the failure to promote. Therefore, several promotion decisions in 1998 and 1999 are time barred.
There are two promotion decisions that are not time barred: (1) the employer's decision not to promote Brown to the associate professional scientist level in late 2000; and (2) the employer's 2001 decision to promote someone else to the operations manager position. In the Seventh Circuit, the fourth prong of the prima facie case requires a showing that "the employee who was promoted was a member of a different race and was not better qualified than" the plaintiff. In this case, Brown's claims fail because he failed to show that the employees who were promoted were similarly situated.
Even if Brown had established a prima facie case, the employer presented a compelling nondiscriminatory explanation for not promoting him: "his unsatisfactory performance evaluations and client complaints regarding his performance." Both Brown's co-workers and clients regarded his behavior and work performance as problematic. Moreover, the court explains "that a plaintiff's own opinions about [his] work performance or qualifications do not sufficiently cast doubt on the legitimacy of [his] employer's proffered reasons for its employment actions."
With respect to his retaliation claim, he argues that in retaliation for filing an EEOC charge in February 2000 that he was subjected to increasingly negative performance reviews that resulted in him being placed on probation and the employer continued to deny him promotions. The court affirms the grant of summary judgment on the retaliation claim because timing alone is insufficient to establish a genuine issue of material fact.
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3. When pursuing an ADEA claim, a federal employee can bypass the administrative process by giving the EEOC a "notice of intent to sue" letter and then waiting 30 days before filing suit. In this case, the plaintiffs did not wait 30 days, but are entitled to equitable tolling.
Forester v. Chertoff, - F.3d - (9th Cir. August 29, 2007)
Facts: This is an ADEA action against the Department of Homeland Security. Federal employees have the option of bypassing the administrative process and filing an ADEA action in the federal district court. However, they are required to give the EEOC notice of their intent to file suit within 180 days of the alleged discriminatory act. They are then required to wait at least 30 days before filing suit. The three plaintiffs in this case gave notice to the EEOC within 180 days, but they did not wait at least 30 days before filing suit.
District court: The district court granted summary judgment on the basis that it lacked jurisdiction over the ADEA claims because the complaint was filed prematurely.
Appeal: In a split decision, the majority vacates and remands. Neither the 180 day notice requirement (which is not at issue) nor the 30 day waiting requirement (which is at issue) are jurisdictional. Therefore, the failure to comply with the 30 day waiting requirement is subject to waiver, estoppel, and equitable tolling. The question presented is whether the plaintiffs are entitled to equitable tolling. The court explains when equitable tolling applies:
In Naton, we explained that equitable tolling "often focuses on the plaintiff's excusable ignorance of the limitations period and on lack of prejudice to the defendant." Naton, 649 F.2d at 696. We have subsequently noted that "[w]here the danger of prejudice to the defendant is absent, and the interests of justice so require, equitable tolling of the limitations period may be appropriate." Azer v. Connell, 306 F.3d 930, 936 (9th Cir. 2002).
The court holds that the plaintiffs' mistake was not excusable because they were represented by counsel. But the court stills holds that equitable tolling applies because there is no evidence of prejudice to the defendant and the interests of justice require the application of equitable tolling. In concluding that the "interests of justice so require," the court notes that "it would be contrary to the remedial and humanitarian purposes of the ADEA . . . to allow the premature filing of a complaint, that in no way prejudiced the defendant, to deprive the Plaintiffs of their day in court." If the plaintiffs had waited 30 days, they could have filed suit on June 23, 2001. But the EEOC did not inform the defendant of the plaintiffs' notices of intent to sue until July 5, 2001. In other words, the EEOC waited more than 30 days to let the defendant know of the intent to sue. Furthermore, the court says that even though suit had been filed, the EEOC could still have negotiated with the parties and sought a resolution. Circuit Judge Bea dissents.
4. Postal Service employee who was diagnosed with PTSD was a direct threat to the health or safety of others.
Jarvis v. Potter, - F.3d - (10th Cir. August 30, 2007)
Facts: This is a Rehabilitation Act action. Lanny Jarvis is a decorated Vietnam War veteran who has been diagnosed with post-traumatic-stress disorder ("PTSD"). The disorder would cause him to strike an employee who startled him. On two separate occasions he struck Cindy Frazier, a co-worker, when she startled him. In another incident, Jarvis was vacuuming the office of LesLee Bishop early one morning before her scheduled arrival time. She arrived a few minutes early and came right up behind him and said "good morning." He turned with clinched fists to defend himself.
Finally, on June 16, 2003, Al Nielsen grabbed Jarvis from behind and Jarvis instinctively turned and swung at Nielsen. Nielsen reported the incident. On July 2, 2003, a postal inspector investigated the incident. That same day, Jarvis was placed on administrative leave with pay effective July 3. The next day, he received another letter (also dated July 2) placing him on leave without pay beginning July 5. Jarvis appealed the decision and on July 8 a due process hearing was held. Jarvis said that if he hit someone in the right place, he could kill that person. He said his PTSD was getting worse and that he could no longer stop at the first blow. He said he could not safely return to the workplace. At the hearing, Jarvis asked the Postal Service to begin the paperwork for a medical-disability retirement so that he could avoid being fired. He also volunteered to provide a letter from his health care practitioner explaining his PTSD symptoms. A letter was faxed to the Postal Service the next day and the letter did not minimize the risk that Jarvis posed.
In a letter dated July 17, 2003, the Postal Service advised Jarvis that in no sooner than 30 days he would be removed from the Postal Service as unfit for duty. On July 17 Jarvis filed an EEO complaint alleging disability discrimination. Shortly thereafter, he filed a second EEO complaint alleging retaliation. On August 12, 2003, he received a "letter of decision" advising him that he would be removed from the Postal Service as of August 18.
In the meantime, on July 25 Jarvis requested that he be allowed to access his accrued vacation and sick leave while he applied for disability retirement. In response, the Postal Service offered him the opportunity to resign, rather than be terminated, if he would agree to do so before February 1, 2004, regardless of whether his application for medical-disability retirement had been granted. Jarvis rejected the offer and he was terminated. He was eventually awarded disability retirement benefits.
District court: The district court granted summary judgment for the Postal Service.
Appeal: With respect to his discrimination claim, the court finds that Jarvis was not "otherwise qualified" under the Rehabilitation Act because he was a direct threat to the health or safety of others. The employer's assessment of a direct threat must be "objectively reasonable" and the court holds that the Postal Service's assessment met this standard.
Next, with respect to his retaliation claims, the court affirms the grant of summary judgment as to the claims that were addressed below on the basis that there is no evidence of retaliation. However, the Postal Service, in its motion for summary judgment, failed to address the following claims of retaliation: (1) his placement on leave without pay on July 3, 2003; (2) the denial of his July 8 request not to be terminated, but to be allowed to retire on disability; and (3) the denial of his July 25 request to access his vacation and sick leave. These claims do not challenge the direct threat determination. The court reverses and remands as to these claims for further proceedings.
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