Bernabei & Wachtel Blog

Supreme Court, use of racial epithets

(1) One year ago, the Supreme Court issued its interesting decision in Ash v. Tyson Foods, Inc., which remanded to the U.S. Court of Appeals for the 11th Circuit for a determination of whether the use of racial epithets, such as "boy" (when directed to an older African-American male), was discriminatory conduct. 126 S. Ct. 1195 (2006).

(2) Since that time, the Eleventh Circuit upon remand, ruled in the employer’s favor, for the second time. 190 Fed. Appx. 924 (11th Cir. Aug. 2, 2006). The Eleventh Circuit stated that:

The Supreme Court held that the word "boy" used without modification was "not always benign" and could be evidence of racially discriminatory intent. The Court listed five non-exclusive factors which may indicate whether the word is evidence of racial animus - "context, inflection, tone of voice, local custom and historical usage."  Ash, 126 S. Ct. at 1197.

After reviewing the record, we conclude once again that the use of "boy" by Hatley was not sufficient, either alone or with the other evidence, to provide a basis for a jury reasonably to find that Tyson's stated reasons for not promoting the plaintiffs was racial discrimination. The usages were conversational and as found by the district court were non-racial in context. But even if somehow construed as racial, we conclude that the comments were ambiguous stray remarks not uttered in the context of the decisions at issue and are not sufficient circumstantial evidence of bias to provide a reasonable basis for a finding of racial discrimination in the denial of the promotions. The lack of a modifier in the context of the use of the word "boy" in this case was not essential to the finding that it was not used racially, or in such a context as to evidence racial bias, in the decisions at issue, even if "boy" is considered to have general racial implications. The statements were remote in time to the employment decision, totally unrelated to the promotions at issue, and showed no indication of general racial bias in the decision making process at the plant or by Hatley. Moreover, there is nothing in the record about the remaining factors to support an inference of racial animus in the use of the term "boy."

(3) The employee (Ash) appealed anew to the Supreme Court, but the petition for certiorari was denied on January 22, 2007. Ash v. Tyson Foods, Inc., No. 06-706 (Jan. 22, 2007). In essence, the employee won the battle but lost the war.

Alan R. Kabat, Esquire, The Bernabei Law Firm PLLC, 1775 T Street N.W., Washington, D.C. 20009-7124 / tel. (202) 745-1942, fax (202) 745-2627

Supreme Court, attorney fee-shifting case

Today, the U.S. Supreme Court granted certiorari in an attorney fee-shifting case on a First Amendment claim, Struhs [Secretary, Florida Dept. of Environmental Protection] v. Wyner, No. 06-531.

This is not an employment case, but it addresses the question of whether a preliminary injunction, by itself, is sufficient to allow the prevailing party to obtain attorney's fees and costs, even if that party then failed to get a permanent injunction after a hearing on the merits.

Here, the Eleventh Circuit, Wyner v. Struhs, 179 Fed. Appx. 566 (11th Cir. 2006) affirmed the ruling of the U.S. District Court for the Southern District of Florida, 254 F. Supp. 2d 1297 (S.D. Fla. 2003), that the plaintiffs could get attorneys' fees and costs (just under $26,000), based on their obtaining a preliminary injunction, even though they did not succeed at getting a permanent injunction. The Florida state government argued that the Eleventh Circuit's ruling was in conflict with the Fourth Circuit's decision in Smyth v. Rivero, 282 F.2d 268 (4th Cir. 2002), which held that a preliminary injunction alone does not create prevailing party status.

That's the legal issue. Here's the factual background. Plaintiffs Wyner and Simon, as part of a group of nudists, wanted to have a public demonstration at MacArthur State Park (which is somewhere near Palm Beach), in which several or many nudists would form a peace symbol on the beach. They brought a First Amendment challenge to a Florida state regulation that required a minimum amount of clothing on the beach. Evidently this regulation must be somewhat skimpy in its coverage, given Miami beach attire, but it was not skimpy enough for the plaintiffs...

Alan R. Kabat

The Bernabei Law Firm, PLLC

1775 T Street, N.W.

Washington, D.C. 20009-7124

tel. (202) 745-1942 (ext. 242)

fax (202) 745-2627

email: Kabat@BernabeiPLLC.com

Joint Employer Doctrine

Judge Collyer just issued a useful decision on the joint employer doctrine, which addresses issues that arise when a staffing agency (here, Kelly Services) assigns a person to work on a short-term basis in the office of one of its clients (here, the U.S. Army). If the person alleges that she was discriminated or harassed in the workplace, can she sue not only the staffing agency (her official employer), but also the staffing agency’s client? Here, Judge Collyer allowed the plaintiff’s retaliation claims against the U.S. Army to go forward.

The pro se plaintiff, a former receptionist, worked for Kelly Services as a receptionist at the Walter Reed Army Medical Center. In 2003, Judge Collyer dismissed her first lawsuit, which brought sexual harassment claims against Kelly Services, on the grounds that Ms. Coles simply quit the job after the alleged incident, thus giving Kelly Services no opportunity to remedy the harassment. Coles v. Kelly Servs., Inc., 287 F. Supp. 2d 25 (D.D.C. 2003). Plaintiff then filed a second lawsuit, against the U.S. Army, alleging both harassment and retaliation. Judge Collyer dismissed the harassment claims for the same reason as in the first lawsuit, but allowed the retaliation claims to go forward.

What is of broader interest is the court’s discussion of whether the plaintiff could bring Title VII claims against both Kelly Services (the employment agency) and the U.S. Army (where the plaintiff was assigned). The joint employer issue is often important in cases involving temporary employees or others who are detailed on work assignments to work away from their employer’s office, or other situations involving staffing agencies and others who provide contract services.

Coles v. Harvey [Secretary, Dept. of the Army], No. 2006-cv-223 (D.D.C. Jan. 11, 2007).

http://www.dcd.uscourts.gov/opinions/2007/2006CV223-10116-1112007a.pdf

The excerpts relating to the joint employer issue follow:

Pending before the Court is Defendant Francis J. Harvey’s motion to dismiss or, in the alternative, for summary judgment. Plaintiff Elena Coles, who is proceeding pro se, opposes the motion. Ms. Coles alleges that Defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), by subjecting her to sexual harassment and then retaliating against her after she complained. Having considered the parties’ briefs and accompanying materials, the Court will grant Defendant’s motion in part and deny it in part. . . .

Ms. Coles sued Kelly Services on September 19, 2002, alleging sexual harassment and retaliation in violation of Title VII. On October 17, 2003, this Court granted Kelly Service’s motion for summary judgment and dismissed Ms. Coles’s complaint. See Coles, 287. F. Supp. 2d at 25. The Court of Appeals for the District of Columbia Circuit affirmed that ruling on July 20, 2004. See Coles v. Kelly Services, 105 Fed. Appx. 275 (D.C. Cir. 2004). On February 8, 2006, Ms. Coles filed the instant action against Defendant based on the same factual and legal allegations. . . .

Defendant relies on Redd v. Summers, 232 F.3d 933 (D.C. Cir. 2000) to establish that Ms. Coles was not a federal employee. Def.’s Mem. at 10. In that case, the D.C. Circuit applied an 11-factor test to determine that a contract tour guide at the Bureau of Engraving and Printing was not jointly employed by a federal agency for purposes of the Rehabilitation Act. See Redd, 232 F.3d at 938. The court noted that the 11-factor test, which it first announced in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979), had never been invoked to resolve an issue of joint employment. Id. Nevertheless, the court employed the Spirides factors because the parties did not argue the point. Id.

It now appears that this Court is faced with the question that the D.C. Circuit passed over in Redd: Does Spirides control in cases involving alleged joint employment, or should some other test inform that analysis? Reading between the lines in Redd, the Court concludes that Spirides does not control; rather, the joint-employment test laid out in NLRB v. Browning-Ferris Indus. of Penn., Inc., 691 F.2d 117, 123 (3d Cir. 1982) is the applicable test for determining whether a plaintiff is a joint employee. See Redd, 232 F.3d at 938 (noting that "[d]espite the parties’ agreement, we doubt whether the Spirides test is suited to this case" and citing Browning-Ferris as a "fairly standard formulation" of the joint-employment test).

In Browning-Ferris, the Third Circuit, relying on the Supreme Court’s decision in Boire v. Greyhound Corp., 376 U.S. 473 (1964), held that two or more businesses are "joint employers" when "it can be shown that they share or co-determine those matters governing essential terms and conditions of employment . . . ." 691 F.2d at 1124. Whether one of the alleged joint employers "has retained for itself sufficient control [over] the terms and conditions of employment of the employees who are employed by the other [alleged joint] employer . . . ‘is essentially a factual issue’" and does not turn on whether there is an independent-contractor relationship between them. Id. at 1123 (quoting Boire, 376 U.S. at 481). . . .

Assuming these allegations to be true and taking them in the light most favorable to Plaintiff, the Court finds that Ms. Coles has sufficiently pled that she was a joint employee of Defendant and Kelly Services. Defendant’s factual assertions do not establish the contrary as a matter of law. There is clearly a genuine dispute about who supervised Ms. Coles, and the fact that Kelly Services paid Ms. Coles and determined her salary, while relevant, does not conclusively establish that Kelly Services retained exclusive control over the essential terms and conditions of her employment.

Alan R. Kabat The Bernabei Law Firm, PLLC 1775 T Street, N.W. Washington, D.C. 20009-7124 tel. (202) 745-1942 fax (202) 745-2627