Technical Knock Outs Don't Always Stay Out

In today's world where employment arrangements are not always straight forward and simple, who you sue can be a somewhat technical question. Michael Flowers, a counselor hired by Columbia College Chicago, was assigned to a public high school, which had contracted with Columbia College to provide guidance counseling services. The principal of the school refused to allow Flowers to wear a headcovering which he claimed was required for religious reasons. He filed a complaint with the EEOC naming the school system as his employer. The school system objected to the College, which in turn ended Flowers employment.



Following the EEOC investigation of his retalition charge, Flowers, acting pro se, filed a lawsuit against the school system. The federal district judge dismissed the case as frivolous before service was made, because on its face it was clear that the college was his employer not the school district. Accepting that knock down, Flowers sued again, this time against the College. The result? The second case was knocked out when the Court found he had failed to state a claim on which relief can be granted, a ruling the 7th Circuit construed as holding, "Title VII allows an employer to sack a person who complains about discrimination elsewhere." Getting off the canvas a second time, Flowers appealed to the 7th Circuit, which has (at least from his point of view) set things right, by making it clear that the case can go forward and be heard on the merits. Flowers v. Columbia College Chicago (7th Cir. 2/8/05) [pdf].



The Court did not come close to buying the College's argument (accepted by the trial court) that since the complaint was made against someone that did not employ him, it was not protected activity. To do that would, in the Court's view, completely dismantle Title VII retaliation protection based on corporate structuring.



It also dismantled the College's argument that the action was not protected because it was frivolous:

[T}he College insists that Flowers’s original charge was baseless because made against the Chicago school system, which did not employ him. Yet identifying the “employer” in a borrowed-servant situation can be difficult. Flowers was in a bind: had he charged the College with failing to accommodate his religion, the College could have blamed the high school and insisted that it was in no position to do anything; had Flowers filed the charge against the school system (as he did), it could have replied (as it did) that the College was his only employer. Perhaps both entities usefully could be deemed employers in such a situation, [cites omitted] but even if the College was the only statutory “employer” it hardly seems a firing offense for Flowers to have thought otherwise. If a gaffe on a technical issue allowed the employer to show the worker the door, the anti-retaliation provision would be diluted to the point of uselessness. ... Technical mistakes in pursuing charges that may well have a good substantive footing do not render those charges so unfounded that the employer may reply with a discharge. It is not as if Flowers had filed his initial charge against Verizon or Boeing. The high school was, if not his “employer,” at least using his labor.

When speaking, I have been known to say (somewhat tongue in cheek), "anyone can win on the facts, but it takes a good lawyer to win on a technicality." Flowers is a good reminder that pursuit of a victory on a technicality may end up being not much more than an expensive detour, because as the 7th Circuit clearly showed, not all cases thrown out on TKO's, stay out.

St. Louis Blues

Besides being a song and my current (today) location, is also how I am feeling about my lack of blogging recently. Too much road (make that air) time in the last 10 days, hopefully will be back in more normal stride in the next couple of days.

3rd Circuit Breaks Tie - Narrow Reading of Pre-emption Under Airline Deregulation Act

Can an employee of an air carrier sue under a state whistleblower act, or are they limited to the provisions under the Airline Deregulation Act and its Whistleblower Protection Program? As a general rule, plaintiffs would prefer the state court action, and the 3rd Circuit has joined the 11th in finding that the state action is not pre-empted. Gary v. The Air Group, Inc. (3rd Cir. 2/3/05) [pdf].



The 8th Circuit has taken a different view, but the district court's reliance on that decision is disapproved by the 3rd Circuit as it allowed a pilot's complaint that he was terminated for complaining that another pilot was unsafe, to proceed under the New Jersey Conscientious Employee Act. This may just fall in that category of decisions I have long called, "judges fly too," as it seems courts often take the most favorable view of whatever side is arguing for the safest course of action. And having lived on airplanes for the last week, I can't say that I disagree with them.

A $300,000 Loss Turns Into $2.3 Million From Santa Clara Jury

The Memphis Business Journal headline tells the tale of the latest MDV, Jury orders FedEx to pay $2M in its follow up story on what a Santa Clara, California jury did in the punitive damage phase of a sexual harassment case brought by 2 employees. The jury had earlier awarded $300,000 and $30,000 to the two for compensatory damages.



In Texas state court, the defendant controls whether to ask for bifurcation of liability and punitive damages. Most defendants quickly came to the conclusion that given the choice, you were better with a jury that was mad at you (which if they get around to awarding punitive damages they almost certainly are) only having one bite at the apple.

A Handful of Gender-Neutral Harassment and A Pinch of Gender-Based Harassment And What Do You Have?

A trial, according to the 10th Circuit. In a lawsuit brought by several female employees of the New Mexico Boys' School, the 10th Circuit affirmed the summary judgment on most claims, but salvaged a portion of the sexual harassment claims of some of the plaintiffs. It found itself faced with the following question, "[Can] Plaintiffs use a substantial amount of arguably gender-neutral harassment to bolster a smaller amount of gender-based conduct in opposing summary judgment? And the answer:

Our precedents say that they can. "Facially neutral abusive conduct can support a finding of gender animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly gender-discriminatory conduct." O'Shea, 185 F.3d at 1097. This is because what is important in a hostile environment claim is the environment, and gender-neutral harassment makes up an important part of the relevant work environment. Conduct that appears gender-neutral in isolation may in fact be gender-based, but may appear so only when viewed in the context of other gender-based behavior.

Chavez v. State of New Mexico (2/2/05) [pdf]. Reading the opinion gives you several examples of how what someone no doubt thought was "cute behavior" in the workplace, sounds much more sinister in the context of the court room.

Using "Motivating Factor" Not "But For" Instruction - Plain Error According to 5th Circuit

When a party fails to object in the trial court, the appellate court is limited to reviewing a mistake for "plain error." In the 5th Circuit that means they must show:

1) that an error occurred; 2) that the error was plain, which means clear or obvious; 3) the plain error must affect substantial rights; and 4) not correcting the error would seriously impact the fairness, integrity, or public reputation of judicial proceedings. The plain error exception is designed to prevent a miscarriage of justice where the error is clear under current law.

What that usually means is -- you lose. But not always. And today's decision in Septimus v. University of Houston (5th Cir. 2/2/05) [pdf] is such a case.



Refereeing a dispute that erupted within the UH's General Counsel's office, the 5th Circuit reversed a jury verdict in favor of a former in house attorney who claimed she had been retaliated against for engaging in protected conduct. The reason for the reversal? The Court utilized a "motivating factor" rather than a "but for" standard in the jury instruction on retaliation. If anyone doubted that "motivating factor" was an easier test for plaintiffs, today's decision puts that to rest, at least as viewed from the 5th Circuit's perspective:

This court has consistently required a “but for” standard for proving causation on a Title VII retaliation claim brought under the pretext framework. Thus, the disputed jury instruction amounts to plain error that should have been clear or obvious. Even when the jury instructions are viewed in their entirety, the substitution of the phrase “motivating factor” for “but for” causation causes us to doubt substantially whether the jury was properly guided in its deliberations. Septimus was held to a lower standard in proving the causation element of her retaliation claims – the ultimate question in this case – and therefore substantial rights of the University were prejudiced.

And to just really ruin Septimus' day, the Court also affirmed the trial court's grant of summary judgment on her non-retaliation claims.

EEOC Suit Binding on Named Individuals, And A Poke in the Eye to the Louisiana State Courts

Federal courts are, at least in theory, often times deferential to the state courts, but last week the 5th Circuit was less than, when it remanded a case to the trial court with instructions to enter a permanent injunction enjoining two attempted perpetual plaintiffs from proceeding with their state court age discrimination suit. Vines v. University of Louisiana at Monroe (5th Cir. 1/28/05) [pdf]. The case dealt with an unusual legal issue -- is the EEOC in privity with the individual charging parties on whose behalf it files a lawsuit? Answering that yes, the Court went on to untrack the 2 former professors state court lawsuit against the university.



An earlier federal suit, brought on their behalf by the EEOC, challenging a university policy prohibiting re-employment of retirees on a regular full time basis had ended in summary judgment for the university. Although the EEOC initially appealed, it voluntarily dismissed the case. At that point, the 2 retired (and apparently with time on their hands) professors, filed in state court. The challenge to the suit on the grounds of res judicata/collateral estoppel was successful in the state trial court, but reversed on appeal. When the appeals court refused an en banc hearing, as did the state Supreme Court, the University turned again to the federal courts, filing a motion to enjoin the individuals.

Although the district court denied the motion, the 5th Circuit did not. Winding its way through both the perils of the Anti-Injunction Action and the arguments against privity, the Court found that the Louisiana appeals court decisions were not on the merits and thus not entitled to full faith and credit, and that the arguments against privity were not valid. The EEOC had represented the professors' interests, and the end of that case, should have been the end of it. And now it is.