Bernabei & Wachtel Blog

Supreme Court grants cert in 2 employment cases

Today (Jan. 18, 2008), the US Supreme Court granted cert in two employment discrimination cases, presumably to be heard in April.

(1) Meacham v. Knolls Atomic Power Lab, No. 06-1505. This age discrimination case, originating in the Northern District of New York, has already resulted in two Second Circuit decisions. 461 F.3d 134 (2d Cir. 2006); 381 F.3d 56 (2d Cir. 2001). Although 2 issues were presented for review, the Supreme Court only granted cert on the first issue, which asks who has the burden in disparate impact age discrimination cases, in light of Smith v. City of Jackson, 544 U.S. 228 (2005), of proving that the adverse action was taken for a valid reason other than age.

The Solicitor General, joined by the EEOC, recommended that cert be granted, but only as to the first question, and the Supreme Court agreed, thus leaving the second question for another day.

Here are the questions presented:

QUESTIONS PRESENTED

The Age Discrimination in Employment Act (ADEA) prohibits employment practices that have an unjustified disparate impact on older workers, Smith v. City of Jackson, 544 U.S. 228 (2005), but also provides that it "shall not be unlawful for an employer * * * to take any action otherwise prohibited * * * where the differentiation is based on reasonable factors other than age." 29 U.S.C. 623(f)(1). The questions presented are:

1. Whether an employee alleging disparate impact under the ADEA bears the burden of persuasion in establishing "reasonable factors other than age."

2. Whether an employer's practice of conferring broad discretionary authority upon individual managers to decide which employees to lay off during a reduction in force constitutes a "reasonable factor other than age."

(2) Crawford v. Metropolitan Govt. of Nashville, No. 06-1595. This case, originating from the Sixth Circuit, 211 Fed. Appx. 373 (6th Cir. 2006), concerns whether an employee's statements as a witness in an internal investigation can be protected conduct under the retaliation statutes. Again, the Solicitor General, joined by the EEOC, recommended that cert be granted. The Sixth Circuit had held that the plaintiff's conduct was not protected under either the opposition clause or the participation clause of the retaliation statute.

The Solicitor's brief has a good summary:

Petitioner's disclosure of discriminatory acts during respondent's internal investigation into possible sexual harassment in the workplace was protected activity under Section 704(a). The court of appeals therefore erred in holding that neither clause of Section 704(a) protected petitioner. The court of appeals' construction of Section 704(a) creates an unjustified gap in Title VII's protection against retaliation. Internal investigations are an integral aspect of Title VII and there is no reason to leave cooperating witnesses unprotected. The Sixth Circuit's rule is not only at odds with the text of Section 704(a) but with its object and the EEOC's guidance materials.

The court of appeals' decision is out of step with the precedent in other circuits, but does not squarely conflict with other circuit precedents. Nevertheless, even in the absence of a square conflict, the question presented is of sufficient importance to the effective enforcement of Title VII to warrant resolution by this Court. In particular, the court of appeals' failure to protect employees in internal investigations that precede formal complaints raises significant concerns in light of this Court's decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999), which impose an affirmative duty on employers routinely to investigate allegations of sexual harassment to avoid liability or limit damages under Title VII.

Alan Kabat

Shaking the Industry

The Nuclear Regulatory Commission’s increased scrutiny of nuclear power plant security, and the efforts of our client, Kerry Beal, that aroused that scrutiny  are described on page A1 of the Washington Post,

Friday, January 4, 2008

in: Video of Sleeping Guards Shakes Nuclear Industry

For the Post story, click here:

www.washingtonpost.com/wp-dyn/content/article/2008/01/03/AR2008010304442.html

"Conflicted Out"

This week, LEGAL TIMES reported the recently-filed case of our client, Patricia Dillman, against her former employer, the law firm of Holland & Knight (H&K).

Ms. Dillman, who was director of the litigation support group for H&K in Washington, D.C., accepted a job offer from Hughes, Hubbard & Reed in New York City.  But then H&K informed HH&R that if it hired Dillman,  H&K would move to disqualify HH&R from a large case in which the two firms represented opposing sides.  Dillman, however, had worked only a few hours on that case, searching for electronic discovery vendors, and had never been privy to any client confidences.  HH&R retracted its job offer because of H&K's threats.

New York State ethical rules put the burden on lawyers, not support staff, to ensure that client confidences are maintained.  Lynne Bernabei, lead counsel for Ms. Dillman, comments: 

I’ve never seen anything like this...The bar has an ethical concern with lawyers being stopped  from moving from one firm to another firm. But Dillman was not a lawyer.

For the LEGAL TIMES story, see:

http://legaltimes.typepad.com/blt/2008/01/holland-tortiou.html

The Fastest Employment Lawyer in America

At the June 2007 National Employment Lawyers Association (NELA) convention in San Juan Puerto Rico, David Wachtel tied for first place in the annual Tobias run. The run on the beach -- advertised as a 5K -- seemed to be about half that distance.  Mr. Wachtel led the race for most of the way, but his shoes filled with water and sand, allowing a much younger, and less sandy, competitor to catch up.  At the finish line, NELA founder Paul Tobias pronounced the race a "dead heat."

[Editors Note:  For those of you who read an earlier edition of this post, Justin Dreyfuss still works here, has not been harmed, and should have his blogging privileges back sometime early in 2009]

NRC SEEKS INFORMATION ON NUCLEAR PLANT SECURITY POLICIES AND

NRC News Release, December 13, 2007:

As a result of recent reports of inattentive security guards at some nuclear power plants, the Nuclear Regulatory Commission today told operators of commercial nuclear power plants and certain fuel cycle facilities they must provide specific information to the agency on their security programs and practices.

The information sought includes what actions licensees have taken to ensure security officer attentiveness. The NRC will review the information to determine if additional regulatory actions are warranted.

Specifically, the licensees must provide such information as their actions and management controls to detect and correct behavioral problems; details on how the licensees are ensuring their employees report potential safety and security concerns; information on physical conditions at security posts; and results of any recent self assessments associated with these issues.

Licensees have 60 days to provide the information requested in the bulletin.  If they cannot meet this deadline, licensees can file a request for an extension within 15 days of receiving the bulletin.

“Several of our licensees have had instances of inattentive security officers,” said Roy Zimmerman, director of the Office of Nuclear Security and Incident Response. “While multiple layers of defense at each site maintained its security, the NRC is concerned that, collectively, these incidents are a sign that some licensees are not giving appropriate attention to the effectiveness of this portion of their security programs.”

A copy of the bulletin will be available through the NRC’s Agencywide Documents Access and Management System at this page: http://www.nrc.gov/reading-rm/adams.html . The locator number of the document is: ML073400150.

Fourth Circuit, hostile work environment decision

In Moser v. MCC Outdoor, the Fourth Circuit finds the hostile work environment to be even more egregious than that in the Ocheltree case, because while in Ocheltree the harassment was mostly not directed specifically at the plaintiff, in this case (Moser), the plaintiff bore the brunt of the incredibly crude harassment.  The Fourth Circuit found it reversible error to grant summary judgment on her hostile work environment claims, but not for her remaining claims. The case was on appeal from North Carolina. Some excerpts follow:

http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/061960.U.pdf

 

Moser v. MCC Outdoor, LLC, No. 06-1960 (4th Cir. Dec. 5, 2007).

Before TRAXLER, Circuit Judge, HAMILTON, Senior Circuit Judge, and Robert J. CONRAD, Jr., Chief United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.

ARGUED: Stephen Ashley Boyce, Winston-Salem, North Carolina, for Appellant. Mason Gardner Alexander, Jr., FISHER & PHILLIPS, L.L.P., Charlotte, North Carolina, for Appellees. ON BRIEF: Shannon Sumerell Spainhour, FISHER & PHILLIPS, L.L.P., Charlotte, North Carolina, for Appellees.

PER CURIAM:

Serena Moser appeals a district court order granting summary judgment against her in her action against MCC Outdoor, L.L.C. and Shivers Trading & Operating Company, alleging claims of hostile work environment and quid pro quo sexual harassment, termination in retaliation for her opposition to Title VII violations, and wrongful termination in violation of North Carolina public policy. We affirm in part, reverse in part, and remand for further proceedings. . . .

. . . In this case, Moser clearly forecasted sufficient evidence that she perceived her work environment to be abusive. The issue on which we focus is whether this evidence created a genuine issue of material fact regarding whether Moser's perception was reasonable.

We have recognized "that the line between a merely unpleasant working environment and a hostile or deeply repugnant one" is sometimes difficult to locate. Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996) (internal quotation marks & alteration omitted). While this case demonstrates just how difficult placing that line can be, we nonetheless conclude that the district court erred in granting summary judgment on Moser's hostile environment claim.

Even without taking into account the conduct of Moser's fellow sales representatives, a reasonable jury could determine that Jones constantly made Moser reasonably feel that she was his sexual prey. By telling Moser that she was a hottie, that he would like to see her in a bikini, or that he "would do [her] in a heartbeat," J.A. 300, Jones communicated to Moser that he wanted to have sex with her. Furthermore, the record, viewed in the light most favorable to Moser, showed that Jones regularly took opportunities to treat her in a sexual way. He slipped his arm around her waist, hugged her, repeatedly placed his hand on her thigh during a car trip, and "eyeball[ed] [Moser] up and down constantly." J.A. 268 (emphasis added). He also repeatedly sought to look down her blouse.

Although not quite as severe, many of Jones's other actions could be found by a reasonable jury to have contributed to the pervasiveness of the unwanted sexual conduct. Such a jury could find that many statements or actions that Moser otherwise might have perceived as simply boorish or inappropriate under other circumstances reasonably were humiliating to her in light of the sexually predatory relationship Jones had developed with her. For example, Jones's subjecting Moser to his general comments about what parts of the female anatomy he enjoyed and what sex acts he would like to perform on other women could reasonably be expected to make Moser much more uncomfortable because she knew that he was interested in her body specifically and would like to perform the same acts on her. See Jennings, 482 F.3d at 698 (concluding that a jury could reasonably find that two incidents of direct harassment of the plaintiff "were more abusive in light of the general, sexually charged environment" created by other inappropriate sexual conduct); see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) ("Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. . . . Such claims are based on the cumulative effect of individual acts."). Similarly, Jones's showing Moser a pornographic picture, talking about male sex organs, noting that Moser did not have anyone to have sex with, and saying that he and another employee needed to talk to Moser about sexual techniques could reasonably have made Moser extremely uncomfortable for the same reason. And, Jones's telling Moser that he cared for her or loved her and suggesting that he would like to come over to her house also reasonably could be viewed as reiterations of the sexual desire for Moser that Jones had already expressed.

Indeed, the fact that Moser was a specific object of Jones's sexual attention and not just a witness to inappropriate sexual behavior concerning other women makes much of the conduct that Moser allegedly endured arguably more severe--more humiliating in an objective sense--than the conduct we found sufficient to support a plaintiff's verdict in Ocheltree. In Ocheltree, a female employee was subjected every day to graphic sexual talk from her male coworkers, including descriptions that often portrayed women in a "sexually subservient and demeaning light." Ocheltree, 335 F.3d at 333. She was once sung a vulgar song that arguably used her as the subject, and "something sexual" was done to a mannequin anytime Ocheltree walked by. Id. at 328, 332 (internal quotation marks omitted). Here, in contrast, it was Moser's own body that her supervisor was "constantly" "eyeballing" "up and down"-- particularly when Jones was able to look down her blouse. And while the coworkers in Ocheltree discussed having sex with their wives and girlfriends, Jones told Moser that he wanted to have sex with her and stated that he and another employee should talk to her about different sexual techniques. While the male employees at Ocheltree touched a mannequin in sexual ways in front of the plaintiff, Jones actually touched Moser--in the most egregious examples, by placing his hand on her thigh several times during a car trip as she squirmed away to avoid his touch and by pushing her behind a door in his office and looking down her blouse. . . .

In sum, a jury could reasonably conclude from the evidence forecasted that Jones was unyielding in his sexual treatment of Moser, crippling her ability to have a healthy working relationship with him, and causing her significant personal anguish as she attempted to avoid his sexual behavior and deal with the antagonism he directed toward her. On this basis, a rational jury could conclude that Moser reasonably found her working environment to be both hostile and abusive such that the terms of her employment were altered. We therefore reverse the grant of summary judgment on Moser's hostile environment claim.

Washington's Top Lawyers

WASHINGTONIAN Magazine named Lynne Bernabei and David Wachtel as among the top lawyers in Washington, D.C. in employment law and civil rights law, respectively. According to WASHINGTONIAN, the list was created primarily by peer recommendation -- asking attorneys 'who would you hire if you needed a lawyer?'

US Court of Appeals Rules on EEOC vs V&J Foods Inc.

The US Court of Appeals for the Seventh Circuit decided EEOC vs V&J Foods Inc., Wednesday, November 7th. The EEOC had filed on behalf of Samekiea Merriweather, a 16 year old fast food worker who had been continually sexually harassed and given no help in reporting it. The Judge in the District Court who originally heard the case had ruled against Merriweather on the basis that she had not properly gone through the process of reporting the harassment.  Judges Posner, Flaum and Williams were "astonished" when V&J lawyers argued the conduct of Merriweather's manager whom she had complained about was not sexual harassment. They were further astounded when the same lawyers attempted to argue Merriweather's age did not matter and that if a 40 year old college graduate could understand the procedure, so should a 16 year old in her first paying job.

The decision hinged on the muddled steps employees were supposed to follow when reporting such an incident. There was only a line in the employee handbook regarding reporting sexual harassment, no name and no contact number. Merriweather was never given a proper number to call, and even if she had reached the correct number to call at the company headquarters, she had no idea who to ask for, since she was told to talk to the district manager, a vague title not easily identified within the company.

Altogether, the path she was supposed to follow to report this constant sexual harassment was far too confusing, even for an adult. The judges ruled she should not be held accountable for V&J Foods' failure to provide a clear complaint process. It is perfectly reasonable, the court concluded, to assume the company should include a direct number to call in the event of sexual harassment and steps outlining how to handle the situation.

The case was reversed and remanded and sent back to District Court for further proceedings.

Justin Dreyfuss

NRC Inattentiveness Concerns Union of Concerned Scientists

In a letter to Samuel Collins, Nuclear Regulatory Commission Region I Administrator, David Lochbaum of the Union of Concerned Scientists called Collins' November 5th, 2007, letter to Exelon a lie. "I am truly amazed, move over David Copperfield, Sam Collins is here." Lochbaum pointed out that Collins completely ignored the 6 months between the time the inattentive security officer problem was brought to light, and the time Collins claims Exelon found out. "[David Copperfield] made an elephant disappear. Poof! You wiped 6 months off the calendar...The period between March 12, 2007, and September 10, 2007, may be missing from your calendar, but November 5th, 2007, is marked on my calendar and burned in my memory as the day you lied to the American public."

http://www.ucsusa.org

Justin Dreyfuss

D.C. Circuit, hostile work environment decision

In Greer v. Paulson, No. 06-5155 (D.C. Cir. Nov. 2, 2007), involving events at the IRS in the mid 1990's, the D.C. Circuit affirmed the grant of summary judgment on the plaintiff's hostile work environment claims. However, the court decision has useful language explaining that acts in the workplace while the plaintiff is away from work (e.g., on leave), can still constitute a hostile work environment, particularly if they discourage the plaintiff from returning to work.

http://pacer.cadc.uscourts.gov/docs/common/opinions/200711/06-5155a.pdf

Before: SENTELLE, ROGERS and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

. . . This court has not spoken on whether an employee's absence bars consideration of work-related incidents for purposes of exhausting a hostile work environment claim. But in Morgan, the Supreme Court recently reaffirmed that "[t]he phrase 'terms, conditions, or privileges of employment' [of 42 U.S.C. § 2000e-2(a)(1)] evinces a congressional intent 'to strike at the entire spectrum of disparate treatment of men and women' in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment." 536 U.S. at 116 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations omitted)). Given this context, the Supreme Court explained that it is appropriate to consider any timely incident, even where there is a significant time gap between that incident and prior allegations, "so long as each act is part of the whole." Id. at 118. The five courts of appeals that have considered this issue agree that employee absence does not bar consideration of work-related incidents as part of a hostile environment claim. As the Eighth Circuit held in Jensen v. Henderson, 315 F.3d 854, 861-62 (8th Cir. 2002), a hostile work environment "can be a continuing violation even though the employee is not working" where the employee claims her employer drove her out of the workplace due to harassment and "she has received no indication that the environment of harassment has changed."

We join our sister circuits in rejecting a per se rule against considering incidents alleged to have occurred while an employee was physically absent from the workplace. There are various ways in which a hostile environment may extend beyond the physical workplace, and thus contribute to and form part of a hostile environment claim. For example, harassment and hostile incidents may occur by telephone or in person during an employee's communication with her employer while she is not working or away from the office. See, e.g., Richards v. Dep't of the Army, 2007 WL 579549, at *3 (6th Cir. Feb. 15, 2007) (unpublished per curiam). When an employee claims that her "inability to return to work resulted from the [employer's] ill treatment of her," the Eighth Circuit observed, communications while on leave may form an essential part of a hostile environment claim. Jensen, 315 F.3d at 861-62. A per se rule barring consideration of incidents during a workplace absence would provide an employer with a perverse incentive to place on leave an employee for whom it had created a hostile environment in order to insulate itself from liability. As the Second Circuit observed, there should be no reward for an employer "who sought to rid [the worksite]" of certain employees on the basis of sex or race, by driving them to take leave, or otherwise escape from the workplace. Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). Just as an employer's positive attempts to cure a hostile environment during an employee's absence may protect the employer from liability, any negative actions the employer takes during the absence should be considered. See, e.g., Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1049 (7th Cir. 2000). . . .