Employment Law
Law Alerts
Employment
Federal
By Lee C. Durivage, Esq. (lcdurivage@mdwcg.com or 215-575-2584)
The United States Supreme Court Holds That Employers Bear The Burden Of Proving That Employment Decisions Are Based On "Reasonable Factors Other Than Age."
Meacham v. Knolls Atomic Power Lab., 128 S. Ct. 2395 (June 19, 2008)
The United States Supreme Court levied a blow against employers litigating age discrimination lawsuits by holding that the employer bears the ultimate burden of proving that the employment decision was based on "reasonable factors other than age." This reversed the Second Circuit's decision which held that the employee bears the burden of proving that the employment decision was "unreasonable." There, several employees filed suit after being terminated during an involuntary reduction in force under a disparate impact theory of discrimination under the Age Discrimination in Employment Act (ADEA), alleging that 30 out of 31 employees discharged were over the age of 40. The employer, in defense, stated that the subjective factors they used, including ranking of employees by managers in terms of performance, flexibility and criticality of their skills and then having a review panel oversee the decision "to assure adherence to downsizing principles as well as minimal impact on the business and employees," was reasonable and precluded liability under the ADEA. The Supreme Court, however, reasoned that, while it understands that "persuading the fact finders that their choices are reasonable makes [ADEA claims] harder and costlier to defend" for employers, Congress drafted the "reasonable factors other than age" exemption "in the orthodox format of an affirmative defense" and, therefore, it must "read in the way Congress wrote it."
The United States Supreme Court Holds That The Civil Rights Act Of 1991 Provides A Retaliation Cause Of Act For Employees Pursuant To § 1981.
Kentucky Ret. Sys. v. Equal Employment Opportunity Comm'n, 128 S. Ct. 2361 (June 19, 2008)
The United States Supreme Court held that Kentucky's disability retirement benefit plan, which treats some disabled individuals more generously than it treats other disabled individuals if they became disabled after they were eligible for retirement based on age, did not violate the ADEA. There, the employee became disabled only after he had reached the "age retirement" criteria and filed suit, alleging that the pension plan was discriminatory, in violation of the ADEA. The Supreme Court disagreed, reasoning that "pension status" and "age" are analytically distinct and the employee had failed to demonstrate that the differences in the pension plans were "actually motivated" by age, as required by the ADEA.
The Third Circuit Holds That The Employer Did Not "Regard" Employee As Disabled When It Refused To Reinstate Employee To Previous Job Following An Injury.
Hershgordon v. Pathmark Stores, Inc., 2008 U.S. App. LEXIS 14240 (3d. Cir. July 7, 2008)
The Third Circuit Court of Appeals affirmed the District Court decision which held that the employer did not "regard" the employee as disabled for simply refusing to reinstate him to his previous job after back surgery. There, the employee was injured at work and needed two back surgeries. After an extended period of recovery, the employee sought to return to his previous job as night manager. The employer, after review by its ADA committee, denied his request, reasoning that no reasonable accommodation could be made to allow the employee to function in that job. The employee then filed suit, alleging that the employer "regarded" him as being disabled, in violation of the Americans with Disabilities Act (ADA). In holding that the employer did not "regard" the employee as disabled, the court stated that the employee failed to demonstrate that the employer believed he "was unable to perform any job in the supermarket" and that the employer merely considered the employee to be temporarily incapable from performing the job as a night store manager.
The Third Circuit Holds That A Mixed-Motive Plaintiff Cannot Establish A Title VII Prima Facie Case If There Is Unchallenged And Objective Evidence That He Is Unqualified For The Position He Seeks To Retain.
Makky v. Chertoff, 2008 U.S. App. LEXIS 16687 (3d. Cir. Aug. 7, 2008)
The plaintiff filed a Title VII lawsuit against the Transportation Security Administration (TSA) on the basis of national origin (the plaintiff was born in Egypt) and religion (Muslim) after he was suspended with pay and later terminated when his security clearance was not renewed by the TSA following the terrorist attacks on 9/11. In holding that the plaintiff's employment discrimination claims failed as a matter of law, the court stated that "a mixed-motive plaintiff has failed to establish a prima facie case of a Title VII employment discrimination claim if there is unchallenged objective evidence that s/he did not possess the minimal qualifications for the position plaintiff sought to seek or retain." In so holding, the court reasoned that the plaintiff's lack of a security clearance was akin to a doctor practicing without a medical license and was dispositive in a Title VII mixed-motive claim. In addition, the court determined that it had no jurisdiction to review the merits of the security clearance denial and such decisions are exclusively within the province of the executive.
New Jersey
By Lawrence Berg, Esq. (856-414-6031 or lbberg@mdwcg.com)
Given The Purpose And Public Policy Underlying The New Jersey Conscientious Employee Protection Act (CEPA), An Offer Of Judgment Filed By An Employer Is Ineffective And Will Not Limit A Claimant's Ability To Seek Recovery Of Counsel Fees, Nor Will It Allow An Employer To Seek A Recovery After Defeating A Frivolous Claim.
Best v. C & M Door Controls, Docket No. A-3801-06T2 (App. Div. Aug. 19, 2008)
The plaintiff instituted suit against his former employer and certain employees alleging violations of the New Jersey Prevailing Wage Act and of CEPA. Following the completion of discovery, the defendants filed an Offer of Judgment for $25,000, which was rejected. The matter proceeded to trial, and the plaintiff received an award of $2,600 on the PWA claim, but the jury found no cause for action on the CEPA claims. The plaintiff sought an award of fees under the PWA, and the defendants sought an award of fees based upon the provisions of the Offer of Judgment Rule and under the CEPA statute based upon a contention that the action was frivolous at its inception. The court concluded that the public policy underlying CEPA would be thwarted by allowing an Offer of Judgment to be effective, especially since the damages sought in a CEPA claim are generally unliquidated.
Notwithstanding The Absence Of Any Language In The CEPA Statute, Supervisors May Be Individually Liable For Violations.
Zane v. Fairfield Communities, Inc., 2008 U.S. DIST LEXIS 54513
The plaintiff instituted a retaliatory discharge suit against his employer and his former supervisor after he was transferred and then fired for allegedly complaining about racially discriminatory marketing practices. Unlike the New Jersey Law Against Discrimination, which allows individual liability for aiding and abetting, the CEPA statute, on its face, only creates a cause of action against the employer. Nevertheless, the District Court concluded that individual supervisors may be liable for their role in the adverse employment action. The decision rejects a prior state trial court decision, Ecker v. Dana Transport Systems, which had held to the contrary.
In A Disability Discrimination Claim, A Claimant Must Offer Proof Of A Specific Adverse Employment Action. The Mere Refusal To Provide Accommodation Is Not Sufficient.
Victor v. State Of New Jersey, Docket No. A-6001-05T1 (App. Div. July 24, 2008)
The plaintiff, a state police officer, alleged that due to a back problem, he was unable to go on road patrol and requested administrative assignment. This request was refused, and the plaintiff worked part of a day and then took sick leave. No disciplinary action or change in the terms or conditions of employment ensued. In overruling the trial court determination, the Appellate Division panel concluded that the mere failure to provide accommodation, without more, is insufficient to establish a claim of discrimination. A claimant must show some adverse employment action which materially altered the terms and conditions of continued employment.
A Single Comment Which Is Capable Of Contaminating The Workplace Is Sufficient To Maintain A Claim Of A Hostile Work Environment.
Kwiatkowski v. Merrill Lynch, Docket No. A-2270-06T1 (App. Div. Aug. 13, 2008)
The claimant filed a claim of wrongful termination and harassment based upon sexual orientation and for intentional infliction of emotional distress. The hostile work environment claim was premised upon a single comment by a supervisor, who denied making the comment, and in which it was alleged that the plaintiff was called a "stupid fag." The Appellate Division concluded that this single comment was sufficiently egregious to create a hostile work environment.
Ohio
By Alan E. Johnson, Esquire (412-803-1196 or aejohnson@mdwcg.com)
"Get Grants or Perish": Third Appellate District Upholds Academic Tenure Denial.
Ohio University v. Ohio Civil Rights Commission, Ohio court of Appeals, Third Appellate District (Athens County), 175 Ohio App.3d 414, 2008 Ohio 1034, 887 N.E.2d 403 (2008)
Observing that "Get Grants or Perish" has replaced "Publish or Perish" as the desideratum for academic promotion and tenure decisions, the court of Appeals for Athens County affirmed a trial court's reversal of the Ohio Civil Rights Commission's finding of unlawful age discrimination under Ohio Revised Code § 4112.02(A) with regard to a 51-year-old assistant professor, Dr. Robert Lipset, who was denied promotion and tenure at Ohio University. The Court of Appeals reached its conclusion by emphasizing that courts are to tread lightly when reviewing faculty employment decisions and by holding that (a) comparisons could not be made to other tenure decisions made by other tenure committees applying subjective professional judgment; (b) "stray remarks" suggesting age prejudice were not admissible where they did not relate to the subject tenure decision and occurred at an earlier time; and (3) the trial court could review the entire record in the course of determining that the record did not contain reliable, probative, and substantive evidence to support a finding of age discrimination. Although Dr. Lipset had generally good credentials, his tenure committee faulted him for not seeking and obtaining enough research grants. Quoting a letter to the editor of the Columbus Dispatch, the Court of Appeals observed that one of the major ways university administrators and trustees balance their budgets is by deducting 40 percent from research grants for overhead.
Seventh Appellate District Finds Genuine Issues of Material Fact Regarding a Workers' Compensation Statutory Retaliatory Discharge Claim.
Cunningham v. Steubenville Orthopedics & Sports Medicine, Inc., Ohio court of Appeals, Seventh Appellate District (Jefferson County), 175 Ohio App.3d 627, 2008 Ohio 1172, 888 N.E.2d 499 (2008)
A physician operated his practice by way of a corporation named Steubenville Orthopedics & Sports Medicine, Inc. (Steubenville Orthopedics) but had another entity, Health Management Resources, Inc. (HMRI), handle certain administrative tasks relating to employees. The Court of Appeals held that genuine issues of material fact existed as to whether Steubenville Orthopedics was the plaintiff's employer under the circumstances of this case, notwithstanding the fact that the Ohio Industrial Commission had found HMRI to be the plaintiff's employer. Genuine issues of material fact were also found regarding the employee's statutory workers' compensation retaliation claim where conflicting evidence could lead the trier of fact to different conclusions. However, the trial court's summary judgment on the employee's disability discrimination claim was affirmed on the basis that no evidence existed that Steubenville Orthopedics perceived the employee as being disabled within the meaning of Ohio statutory and decisional law.
Arbitration Agreements May Not Be Invalidated Absent Specific Facts Showing Substantive Unconscionability.
Roe v. Rent-A-Center, Inc., Ohio court of Appeals, Twelfth Appellate District (Butler County), 2008 Ohio 4307, 2008 Ohio App. LEXIS 3609 (August 25, 2008)
An employer moved to dismiss an employment action filed in the Court of Common Pleas on the basis of arbitration agreements that the plaintiffs had signed with the employer. The trial court denied the motion, holding that the arbitration agreements were void and unenforceable. The Court of Appeals for Butler County reversed, holding that the Court of Common Pleas did not set forth specific findings of fact showing the substantive unconscionability of the agreements. The evidence adduced by the trial court established procedural but not substantive unconscionability, and the Court of Appeals held that an arbitration agreement cannot be invalidated unless both substantive and procedural unconscionability are supported with specific findings of fact.
Sixth Circuit Court Of Appeals Affirms Summary Judgment For University Defendants In A Racial Discrimination Case Where The Plaintiff Failed To Establish Pretext.
Russell v. University of Toledo, 537 F.3d 596 (6th Cir. 2008)
The plaintiff, a registered nurse employed by the University of Toledo Medical Center, was terminated after a history of discipline involving insubordination or bad judgment. In affirming summary judgment for the University defendants on her Title VII and Ohio statutory disparate treatment racial discrimination claims, the Court of Appeals applied the Sixth Circuit's "modified honest-belief doctrine" in holding that the plaintiff failed to create genuine issues of material fact on the pretext and "similarly situated" comparables requirements. Summary judgment was also affirmed on the plaintiff's hostile work environment claim, where remarks by co-workers about affirmative action were made many years before the plaintiff's termination. The plaintiff's retaliation claim was also inadequate because she had presented no evidence that the defendants were aware of the plaintiff's presence at a public rally and because the record contained no evidence to refute the claim that the defendants would still have fired her for the stated, justifiable reasons of "failure of good behavior, gross insubordination, and neglect of duty."
