Kentucky Employment Law Blog

For How Long May Front Pay Be Awarded?

Front pay is awarded to compensate for future income lost due to an unlawful termination of employment. Its amount should be equal to the difference between what the employee would have earned from his or her former employer and the amount, if any, he or she could expect to earn from her new employer. The how much question regarding front pay is easy. More difficult is the how long question. Recently, a federal district court in Alabama examined the how long question in Warren v County Commission of Lawrence County, Alabama and found that front pay covering 32 years should be awarded.

Bonnie Warren was a payroll clerk for the County. For particulars that the opinion does not discuss she was discharged from employment and filed suit for overtime compensation under the Fair Labor Standards Act and for retaliation under Title VII. A jury found for her on both claims and awarded damages of $400,600. Following trial she filed a motion for equitable relief seeking front pay covering 32 years, all the way to retirement age 65.

The court awarded Warren front pay covering 32 years and totaling $650,886.40, explaining as follows along the way:

• prevailing Title VII plaintiffs are presumptively entitled to either reinstatement or front pay
• where reinstatement is not a realistic option, an award of front pay is a necessary part of the "make whole" relief mandated by Congress. Pollard v. E.I. du Pont de Nemours & Co., 532 US 843 (2001); Shore v. Federal Express, 777 F2d 1155, 1158-59 (6th Cir. 1985)
  
  
• Expert economic testimony was not necessary to support warrants calculations of either lost wages or benefits
  
  
• County employees had long stable work histories and it was not unusual for county employees to work for the county for several decades before reaching retirement age
  
  
• Numerous courts have awarded front pay covering long periods of time where the opportunities for a plaintiff to find an equivalent job were limited. Tyler v. Bethlehem Steel, 958 F2d 1176 (2d Cir. 1992)(upholding award of 17 years of front pay in age discrimination case until employee reached retirement age); Passantino v. Johnson & Johnson, 212 F3d 493 (9th Cir 2000)(upholding award of 22 years of front pay in retaliation case until employee reached age 65); Gotthardt v. National R.R. Passenger Corp., 191 F3d 1148 (9th Cir. 1999) (upholding front pay award of $603,928.37 for employee until mandatory retirement age of 70); Padilla v. Metro-North Commuter R.R., 92 F3d 117 (2d Cir. 1996)( upholding front pay award of over 20 years until retirement age of 67)
  
  
• A discounting to present value was not necessary where the front pay calculation does not factor in any future increases in pay or cost-of-living increases. This method of calculating front pay is known as the "total offset method" or the "Alaska Rule." 

Robert L. Abell
www.RobertAbellLaw.com 

Family Members and Others Closely Associated With Employee That Complains of Discrimination Are Protected From Retaliation, Supreme Court Rules Unanimously

The Supreme Court unanimously ruled today in Thompson v. North American Stainless that the anti-retaliation provisions in Title VII protect the fiancee of an employee that filed a charge of discrimination with the EEOC and the fiancee may sue the company for wrongful termination.  The Court's ruling comes nearly 8 years after the events giving rise to the lawsuit occurred.

Eric Thompson's fiancee, Miriam Regalado, filed a charge of sex discrimination against North American Stainless with the EEOC in February 2003.   Three weeks later, it fired Thompson, who was also an employee.  The United States District Court for the Eastern District of Kentucky at Frankfort dismissed Thompson's case, ruling that Title VII offered no protection for third-party retaliation.  As earlier reported on this blog, Employer's Retaliation Against Fiancee of Employee Charging Discrimination Violates Title VII, a panel of the United States Court of Appeals for the Sixth Circuit reversed and reinstated Thompson's lawsuit.  Then, as also earlier reported on this blog, Retaliation Prohibitions Narrowed by Sixth Circuit, the Sixth Circuit en banc by a 10-6 vote affirmed the district court's decision and limited Title VII's anti-retaliation protections.

The Supreme Court found "little difficulty" in concluding that Thompson's firing violated Title VII's antiretaliation provisions, reasoning "it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired."

Thompson could file suit under Title VII for his firing because he "falls within the zone of interests protected by Title VII" since its purpose "is to protect employees from their employers' unlawful actions."  

So, some 8 years after he was fired, Eric Thompson may now go forward to trial on his wrongful termination claim.  

Robert L. Abell
www.RobertAbellLaw.com 

"Similarly Situated" Employees Need Not Have the Same Supervisor

Although the court affirmed a summary judgment on a sex discrimination claim, the Ninth Circuit did set forth and reject the oft-repeated notion that "similarly situated" employees should have the same supervisor in Hawn v Executive Jet Management, No 08-15903 (9th Circuit, August 16, 2010).

The court began its analysis by observing as follows: 

• Whether two employees are similarly situated is ordinarily a question of fact. The employees' roles need not be identical; they must only be similar "in all material respects." Materiality will depend on context and the facts of the case.
• Generally, individuals are similarly situated when they have similar jobs and display similar conduct.

The court then rejected any requirement that similarly situated employees have the same supervisor, explaining as follows:

We do not exclude the possibility that the presence or absence of a shared supervisor might be relevant in some cases. But here, the undisputed facts demonstrate that whether plaintiffs and the female flight attendants shared the same direct supervisor should not have been determinative of whether they were similarly situated, because plaintiffs direct supervisor, Chakerian, was excluded from the decision to terminate them. Instead, the decision to terminate plaintiffs was made directly by Executive Jet's president, Albert Pod. The fact that plaintiffs and the female flight attendants had different direct supervisors did not render them dissimilar in a material respect, because the relevant decision-maker, Albert Pod, was aware of both the allegations against plaintiffs and the allegations plaintiffs had made against the female flight attendants. Similarity between two persons or groups of people is a question of fact that cannot be mechanically resolved by determining whether they had the same supervisor without attention to the underlying issues.

Robert L. Abell
www.RobertAbellLaw.com

 

 

Supreme Court To Decide Whether Retaliation Ban Applies to Family Members and Others Closely Associated With An Employee that Complains of Discrimination

The United States Supreme Court announced Tuesday, June 29, 2010, that it would review a case, Thompson v. North American Stainless, No. 09-291, to decide whether the anti-retaliation provision in Title VII extends protection to family members and others closely associated with an employee that engages in protecting activity by reporting or opposing discrimination in the workplace. 

The questions framed in the petition for certiorari are as follows:

Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. The questions presented are:

(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity?

(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?

This case has previously been discussed in earlier postings: "Retaliation Prohibitions Narrowed by Sixth Circuit" and "Employer's Retaliation Against Fiancee of Employee Charging Discrimination Violates Title VII."

SCOTUSBLOG has the petition for certiorari at its site here.

Robert L. Abell
www.RobertAbellLaw.com

Retaliation Prohibitions Narrowed By Sixth Circuit

The anti-retaliation prohibitions in Title VII have been narrowed by the Sixth Circuit sitting en banc in Thompson v. North American Stainless, LP, No 07-5040 (June 5, 2009), reversing and vacating a earlier panel decision of the Court discussed in an earlier posting at Employer's Retaliation Against Fiancee of Employee Charging Discrimination Violates Title VII.

By a vote of 10-6 the Court ruled that the firing of the fiancee of an employee who had formally and officially charged the employer with discrimination could not sue under Title VII for retaliation.  

This case and the Supreme Court's decision last week in Gross v. FBL Financial Services, Inc., No. 08-441 (June 18, 2009), illustrate the continuing need for Congress to amend employee protection, anti-discrimination and anti-retaliation laws in the face of judicial decisions that practically eliminate the protections the laws are intended to provide. 

Robert L. Abell
www.RobertAbellLaw.com 

Earlier Discriminatory Acts of Supervisor Admissible In Support of Failure to Promote Claim

The discriminatory acts of a prior supervisor marred the work record of an employee when he later sought promotion. The employee sought to present evidence on these past discriminatory acts to support his failure to promote claim based on race. The trial judge excluded this evidence and, in doing so, committed reversible error the Sixth Circuit has ruled in Cobbins v. Tennessee Dept. of Transportation, No 07-6491 (April 2, 2009). 

Gregory Cobbins, an African-American male, was a ten year employee of the Tennessee Department of Transportation and sought promotion to a supervisor position. He was unsuccessful and one of the explanations for the decision was that the successful candidate had no record of disciplinary action, while Cobbins "had several oral and written warnings in his work file."  The warnings were all received between 1998 and 2002 by a former supervisor, Yocum. Cobbins claimed in a prior lawsuit that these warnings were the product of race discrimination by Yocum. The prior lawsuit was dismissed without a judgment on the merits of Cobbins' claim. In this case, he claimed that these earlier discriminatory acts by Yocum deprived him of the opportunity to compete fairly for the promotion to the supervisor position.

The "cat's paw" theory in employment discrimination litigation refers to a situation in which a biased subordinate, who lacks decisionmaking power, influences the unbiased decisionmaker to make an adverse hiring decision, thereby obscuring the subordinate's discriminatory intent. See Arendale v. City of Memphis, 519 F3d 587, 604 n.13 (6th Cir 2008)("When an adverse hiring decision is made by a supervisor who lacks impermissible bias, but that supervisor was influenced by another individual who was motivated by such bias, this Court has held that the employer may be held liable under a 'rubber-stamp' or 'cat's paw' theory of liability.").  Here, Cobbins sought to show that Yocum's past discriminatory acts, which resulted in warnings in his file, influenced the decisionmaking process that resulted in Cobbins' being passed over for promotion unfairly:

Plaintiff seeks only to demonstrate that certain conduct and actions of his supervisor at that time impacted his work record and promotion chances; and such evidence is, therefore, relevant in this case.

This case represents an often-encountered scenario: the discriminatory bias of a supervisor inflicts permanent damage to an employee's career by packing his or her file with unfounded or unfair warnings.

Robert L. Abell
www.RobertAbellLaw.com

Discrimination Based On Advocacy For or Association With Co-Worker

Discrimination against an employee based on his or her advocacy for or association with a co-worker of a different race is a violation of Title VII of the 1964 Civil Rights Act. This is because a white employee discriminated against because of his or her association with an African-American co-worker is discriminated on the basis of his or her race, because the discrimination stems from disapproval of the interracial association and therefore on the employee’s own race. The Sixth Circuit recently held in Barrett v. Whirlpool Corporation, No. 08-5307 (February 23, 2009), that the degree of association or advocacy was immaterial to the employee's claims.  

A violation could be shown if an employee shows that (1) she was discriminated against at work, (2) because she was associated with members of a protected class, regardless of the degree of association. Similarly, the degree of advocacy is irrelevant to such a claim. While the court acknowledged that “as with association, severe or pervasive discriminatory harassment [is] more likely to correlate with more vigorous advocacy, it is unnecessary as long as a plaintiff offers proof that she was, in fact, discriminated against because she advocated for protected employees."  Furthermore, the court added that in assessing the proof of whether an actionable hostile work environment existed “both types of impermissible harassment are considered in the aggregate to determine whether they were so severe or pervasive as to be actionable under the established hostile work environment standard.” However, the court cautioned that this does not include evidence of incidents of harassment directed at African-Americans but “only harassment that specifically targeted those who associated with and advocated for African-Americans would result in actionable hostile work environment claims for such individuals.”

The court ruled that a jury could find that one plaintiff, Nickens, was subjected to a severe or pervasive hostile work environment based on the following: she received a threat of physical violence for reporting racist language, she was subjected to a regular stream of offensive comments about her relationship with an African-American co-worker, and the same relationship was allegedly used as a reason to prevent her from applying for improved job positions. Furthermore, she had reported nearly all the relevant incidents to one of two supervisors, who failed to take corrective action, while both participating in harassment of her directly. The court took care in this case to specify that a white employee discriminated against because of his or her association with an African-American is discriminated on the basis of his race, because the facts support a finding that the discrimination was based on disapproval of the interracial association and therefore on the employee’s own race.

Robert L. Abell
www.RobertAbellLaw.com

Stereotyping and "Sex Plus" Discrimination; Mother of Four Denied Promotion Based on Presumed Childcare Responsibilities

"Sex plus" discrimination occurs where an employer classifies employees on the basis of sex plus another characteristic. In a "sex plus" case not all members of a disfavored class are discriminated against; rather, a “sex plus” case arises where an employer discriminates against a subclass of men or women instead of the entire class. An example of “sex plus” discrimination is presented by the recent decision of the United States Court of Appeals for the First Circuit in Chadwick v. Wellpoint, Inc., where the plaintiff, a mother of four, was passed over for promotion, despite having better qualifications, and alleged that the subclass being discriminated against based on sex was women with children, particularly young children.

Laurie Chadwick, after nearly ten years employment at Wellpoint, applied for promotion to a management position. Chadwick had been performing for some time several of the position’s responsibilities, was encouraged by her supervisor to apply for the promotion, and possessed a seeming very important credential: a recent performance evaluation scoring her 4.40 out of a possible 5.00 points. Chadwick and another female were the two finalists. Chadwick had about six years more pertinent experience and her most recent performance review was superior (the other finalist received a 3.84 out of a possible 5.00 points on her review compared with Chadwick’s 4.4 out of a possible 5). Interviews of the finalists was the final step in the process. The final decision maker was a female, Nancy Miller, who graded the other finalist higher than Chadwick on the interview and subsequently offered the promotion to the other finalist.

At the time of the promotion decision, Chadwick was the mother of four children: an 11 year old son and 6 year old triplets in kindergarten. Despite the burdens that four children necessarily carry, the court noted that there was “no allegation, insinuation, or for that matter evidence that Chadwick’s work performance was negatively impacted by any child care responsibilities she may have had.”

After she was passed over for the promotion, Chadwick filed suit claiming that Wellpoint had denied her the promotion “based on the sex-based stereotype that mothers, particularly those with young children, neglect their work duties in favor of their presumed childcare obligations.” The district court granted WellPoint a summary judgment.

The principal evidence supporting Chadwick's claim was as follows: (a) she was significantly better qualified for the promotion than the other finalist who was selected; and, (b) statements made by management around the time of the promotion decision indicated that sexual stereotyping was a factor including the following: 

• Two months before the decision was made, Miller, the decisionmaker, upon learning of Chadwick’s four children, sent an e-mail to Chadwick stating, “Oh my – I did not know you had triplets. Bless you!”

• A manager that interviewed Chadwick during the promotion process, in response to her answer to a question replied, “Laurie, you are a mother[.] [W]ould you let your kids off the hook that easy if they made a mess in [their] room[?] [W]ould you clean it or hold them accountable?”

• Miller, after informing Chadwick that she had been passed over, told her: “It was nothing you did or didn’t do. It was just that you’re going to school, you have the kids, and you just have a lot on your plate right now.”

• Miller also told Chadwick that “if [the three interviewers] were in your position, they would feel overwhelmed.”

• Miller also advised Chadwick that, “there would be something better down the road,” and that Chadwick would look back and say, “It’s a good thing that the opportunity didn’t work out because I’m happier with this down the road.”

In defense, Miller on behalf of Wellpoint, claimed that she passed Chadwick over for a promotion because she had “interviewed poorly” and that she had only told Chadwick that she had “too much on her plate” in an attempt to “soften the blow.” Wellpoint also asserted that the other finalist was the mother of two children, an argument that the court disregarded, observing that “discrimination against one employee cannot be remedied solely by non-discrimination against another employee in that same group.”

The Court noted that the United States Supreme Court had identified sex-based stereotypes as an impermissible form of discrimination in the Price Waterhouse case, where a woman was denied partnership in an accounting firm for which she worked and was told by the partnership that she was too aggressive and macho, should attend a charm school, and should dress and behave more femininely. There, the Supreme Court pointedly observed, “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group.”

A number of decisions applied Price Waterhouse’s central holding, standing for the the proposition that unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibility. An employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. The essence of anti-discrimination laws in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities. Examples include the following:

• Sex-stereotyping shown where employers stated that a woman could not “be a good mother” and work long hours, and that a “woman would not show the same level of commitment ...because [she] had little ones at home.” Back v. Hastings on Hudson Union Free School District, 36 F.3d 107 (2^nd Cir. 2004).

• Sex stereotyping found where decision maker admitted he did not promote plaintiff “because she had children and he did not think she would want to relocate her family, though she hadn’t told him that.” Lust v. Sealy, Inc., 383 F.3d 580 (7^th Cir. 2004).

• Sex-based discriminatory animus shown where direct supervisor questioned “whether [the plaintiff] would be able to manage her work and family responsibilities.” Santiago-Ramus v. Centinnial P.R. Wireless Corp., 217 F.3d 46 (1^st Cir. 2000).

• In a Pregnancy Discrimination Act case evidence of discrimination shown where supervisor told employee that she was being fired so that she could “spend more time at home with her children” because that statement “invoked widely understood stereotypes the meaning of which is hard to mistake.” Sheehan v. Donlan Corp., 173 F.3^d 1039 (7^th Cir. 1999)

The Court observed that Miller’s explanation to Chadwick that, “it was nothing you did or didn’t do. It was just that you’re going to school, you have the kids, and you just have a lot on your plate right now” was particularly telling, observing as follows:

 

After all, the essence of employment discrimination is penalizing a worker not for something she did but for something she simply is.

The Court also emphasized a jury’s prerogative to find facts. First, the Court noted that Miller had explained the non-promotion in one way to Chadwick: that she had too much on her plate with her kids and school and then later in a very different way, that Chadwick had performed poorly on her interviews. A jury’s prerogative, the Court emphasized, would be to question the veracity of Miller’s second explanation “given that Chadwick was an in-house, long-time employee who had worked closely with her interviewers, had received stellar performance reviews, and was already performing some of the key tasks of the team lead position.” This jury prerogative could “rightly question whether brief interviews would actually trump Chadwick’s apparently weighty qualifications [.] The case was remanded for trial.

 

Robert L. Abell

www.RobertAbellLaw.com

Sex Discrimination Claim Does Not Fail Simply Because An Employer Does Not Discriminate Against Every Member of Plaintiff's Sex

Does a sex discrimination claim fail simply because an employer does not discriminate against every member of the plaintiff's sex. "No," the United States Court of Appeals for the Tenth Circuit answered recently in Strickland v UPS, No 07-1082 (February 24, 2009). The court's ruling indicates how widely misunderstood this simple point is among judges and some lawyers.

Strickland was a sales representative for UPS. Her supervisor, Roten, suggested that she take leave to deal with personal issues, a suggestion that she took. However, when she returned to work she was chastised for having "let down the company," compelled to attend numerous and frequent meetings with her supervisor and district manager, Donnell, which interrupted her sales work, compelled to draw up sales plans that other salespeople were not even though she had higher sales figures, and subjected to constant performance evaluations. She had five male co-workers and one female co-worker, Harper. All testified that Strickland was treated differently than they were, although Harper testified that she was not treated differently than the men. She was compelled eventually to leave her employment and filed suit charging sex discrimination.

The court ruled that Strickland's sex discrimination claim "does not fail simply because an employer does not discriminate against every member of the plaintiff's sex." Such evidence may weaken the claim, the court ruled, but does not defeat it. 

Robert L. Abell

www.RobertAbellLaw.com

Retaliation Shown By Increased Scrutiny of Employee That Filed EEO Charge

An employee that filed a charge of age discrimination with the Equal Employment Opportunity Commission claimed that he was subjected, after he filed the charge, to an increased degree of scrutiny by his supervisors. This increased degree of scrutiny could be properly considered evidence of the employer's intent to retaliate against the employee for filing the charge the United States Court of Appeals for the Sixth Circuit has ruled in Hamilton v. General Electric Company, No. 08-5023 (February 12, 2009). The court explained its reasoning as follows:

Hamilton does not argue that his work had not been scrutinized before, but he states that the level of scrutiny increased greatly after he filed the EEOC complaint. The fact that the scrutiny increased is critical. The district court also emphasized Hamilton’s prior disciplinary history. Though this case includes information about the pre-existing relationship between Hamilton and GE, we must decide what made GE fire Hamilton when it did. GE did not terminate Hamilton until after he filed an EEOC complaint alleging age discrimination. We hold that this temporal proximity of less than three months combined with the assertion that GE increased its scrutiny of Hamilton’s work only after the EEOC complaint was filed are sufficient to establish the causation element of a prima facie case of retaliatory termination.

Robert L. Abell
www.RobertAbellLaw.com