5th Circuit Panel Looks At Cat's Paw Theory

Earlier this week, the Supreme Court invited (i.e. told) the Solicitor General to submit the government's position on a 4th Circuit en banc decision discussed here earlier. Today, a panel of the 5th Circuit sets out the conditions for establishing discrimination under such a theory, but finds that plaintiff failed to meet the standard. Roberson v. Alltel Information Services (5th Cir. 6/30/04) [pdf]. The Court held:

To invoke the cat’s paw analysis, Roberson must submit evidence sufficient to establish two conditions: (1) that a co-worker exhibited discriminatory animus, and (2) that the same co-worker “possessed leverage, or exerted influence, over the titular decisionmaker.” Id. at 227; see also Laxton v. Gap Inc., 333 F.3d 572, 583 (5th Cir. 2003).

In affirming summary judgment, the Court found it was not necessary to decide whether there was any tension between McDonnell-Douglas and Desert Palace even though solicited to do so by the plaintiff. Without mentioning a separate panel's decision from last Friday, reported here which did address that issue, the Court found plaintiff had not presented sufficient proof under any conceivable standard. Additionally, the Court again rejected timing alone as the basis for making a prima facie case of retaliation.

Not A Million Dollar Verdict, But A Million+ Dollar Award

For those who need a reminder that mandatory arbitration is not necessarily always a great thing for employers, check out the Contra Costa Times story, Fired gym employee wins $2.4 million. The award, which I assume has now been paid, was actually handed down in April, 2003. The publicity more than a year later is because of Arbitrator Barbara Chvany's subsequent ruling that the award could be made public. 24 Hour Fitness, the unfortunate defendant had argued that the award as well as other aspects of the proceeding should be confidential. A California state district court decided otherwise and now at least for this particular case, the cat is out of the bag. See the law.com story, $3.5M ADR Award Against 24 Hour Fitness Unsealed about the fight to keep the record sealed. And note how by including the attorneys fee award, how differently the award can be characterized by two headline writers. Thanks to the Daily Labor Report for the tip to this story.

Mixed Motive Analysis Applicable in ADEA Cases According to 5th Cir.

Friday, the 5th Circuit addressed an issue that was a logical follow up to last summer's Desert Palace decision by the Supreme Court. Is a mixed motive analysis applicable in cases under the ADEA? Although it would have a shock if it had gone the other way, the 5th Circuit did confirm it is applicable. Rachid v. Jack In the Box, Inc. (5th Cir. 6/25/04) [pdf]. The Court punted on the issue of whether a replacement only five years younger than plaintiff was insufficient to establish a prima facie age claim, holding that because there was other sufficient evidence to establish a prima facie case, it did not need to decide that question. For a recent survey from other Circuits, see my earlier note, Ever Wonder What the Bright Line for Age Discrimination Is - A Survey By the 6th Circuit .



The Court also set out what it viewed as the post-Desert Palace burden for plaintiffs once the employer has met its burden of articulating a legitimate business reason for the discharge:

“the plaintiff must then offer sufficient evidence to create a genuine issue of material fact ‘either (1) that the defendant’s reason is not true, but is instead a pretext for discrimination (pretext alternative); or (2) that the defendant’s reason, while true, is only one of the reasons for its conduct, and another ‘motivating factor’ is the plaintiff’s protected characteristic (mixed-motive[s] alternative)."

Let's Hope They Don't Try To Outdo Each Other

Since the Phoenix Business Journal is calling the Phoenix EEOC the most active in the county in filing lawsuits against employers, let's hope it does not start a race among the other 23 offices to see who can top Phoenix. You can check out the story here.

Excluded from the FAA, But Not from Arbitration

Since the Supreme Court decided in Circuit City v. Adams that the workers excluded under the FAA was that very small group of transportation workers actually engaged in interstate commerce, we have waited for a case to outline the parameters of exactly who that would be. In Palcko v. Airborne Express, Inc. (3rd Cir. 6/18/04) [pdf] we learn it extends to a first line supervisor whose role includes "“monitoring and improving the performance of drivers under my supervision to insure [sic] timely and efficient delivery of packages.” As a second, not unexpected but important holding, the court held that even though the FAA did not apply, it did not preclude enforcement of the agreement under applicable state law. In this case, the parties had held that Washington state law was applicable in case the FAA did not apply. A nice touch, but it does not appear necessary to the basic holding.

Apologies for Lack of Posting

For any who have been wondering if there were no employment law news for this week and much of last, worth mentioning, there no doubt has been. But rather than reporting it, I have been preparing for and handling two arbitrations this week --one labor, one employment, one in New Mexico and one in Houston. Hopefully, my busy weeks will concur with weeks where the courts/boards/agencies and those involved in making employment law news will choose not to do much, but undoubtedly that will not always be the case.

Texas Supreme Court Turns Back Employee Class Action

Without hearing oral argument, the Texas Supreme Court today overturned a class certification that had been affirmed by the Corpus Christi Court of Appeals. Snyder Communications, LP v. Magana (Tex. 6/25/04). The trial court had certified a class consisting of:

All persons employed in the United States with Defendant Snyder Communications, L.P., on or after April 3, 1997 in the capacity of a sales associate (also known as a field representative position) and employed to sell the AT&T Long Distance Residential Program who submitted one or more LOAs to Defendant which Defendant did not pay.

The allegations were that Snyder had committed both fraud and breach of contract in paying (or from the plaintiffs' perspective, more aptly put, failing to pay) commissions for sales of long distance services.



Although anyone interrupted at dinner by a phone solicitor might have trouble deciding where sympathy should lie between the phone solicitor who called, or the company who hired legions of callers, fortunately that was not the basis for the court's decision. Instead the Court held that since there were as many as 5 reasons why a particular sale (LOA) could be rejected, each individual LOA would have to be considered. Under those circumstances, it was an abuse of discretion for the lower courts to find that common issues of law and fact predominated as required by the class certification rules. Although not all employee class actions will fall into this category, clearly many issues that could arise in an employment law case will.