Kentucky Employment Law Blog

Can an Employer Accused of Discrimination Limit Discovery Simply by Restricting During Litigation Its Stated Reasons for an Adverse Action?

No; this is not the law.  

The Seventh Circuit's decision in Brunker v. Schwan's Home Service, Inc., 483 F3d 1004 (7th Cir. 2009) shows why.

The plaintiff, Brunker, was a route manager for Schwan's, a home-delivery food service. Brunker began experiencing medical problems, which led to a diagnosis of multiple sclerosis, and was fired for alleged "unsatisfactory performance" and being "unable to perform essential job functions."  He brought claims under the Americans With Disabilities Act (ADA) for disability discrimination and failure to accommodate. 

Brunker sought production of the personnel files of other route managers who had been accused of performance deficiencies similar or like his own.  Schwan's opposed these efforts and stated that it "would rely only on Brunker's failure to service customers as the reason it fired him," a position rendering, it claimed, irrelevant any other discipline that Brunker and/or his co-workers received.  A magistrate judge accepted the employer's position and with prejudice, imposing $4,423 in sanctions on Brunker for seeking the discovery.  The Seventh Circuit reversed not only the denial of discovery and the sanctions order explaining:

An employer accused of discrimination cannot limit discovery simply by restricting during litigation its stated reasons for an adverse action. After all, the true reason behind the action is the very heart of the case, and Brunker presented evidence that Schwan's may have asserted reasons for firing him other than the one it relied on during litigation. An employer's shifting explanations are evidence that its stated reasons did not truly motivate the adverse action and that an impermissible one actually did.

The Court's analysis brings to mind the Sixth Circuit's in its case, Bobo v. UPS, discussed at Similarly-Situated In All Relevant Respects; The Sixth Circuit Reverses Based on the District Court's Limiting Plaintiff's Discovery.  

Robert L. Abell
www.RobertAbellLaw.com

 

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Front Pay in Discrimination Cases for the Younger Plaintiff

"Front pay" or future economic damages ("lost future wages" being another way to put it) is an available remedy in employment discrimination and retaliation cases.  Their determination is more complicated when the plaintiff is younger, has a long working career ahead and may not yet have a much-developed work history.  But a plaintiff's "young age" does not preclude "front page" as the Sixth Circuit ruled recently in Varlesi v. Wayne State University, a pregnancy discrimination and retaliation case.

The plaintiff, Tina Varlesi, an excellent student working on her M.S. in Social Work at Wayne State, was subjected to pregnancy discrimination and eventually ejected from the graduate program rendering her unable to complete the requirements for her degree. Her dismissal from the program not only kept her from getting her degree, but she was unable to enroll in another graduate program and a previous job offer contingent upon her completion of the program evaporated. A jury awarded her $848,890 in damages including $200,000 in future economic losses or "front pay."

On appeal, Wayne State University argued, among many other things, that "any award of future damages would be too speculative as a matter of law due to Varlesi's young age." This argument, along with all the others advanced by the employer, was most emphatically rejected by the Sixth Circuit:

The defendant cites several cases of support for the proposition that Varlesi's young age necessarily rendered any future damages unavailable as a matter of law, but none of those cases actually holds (or even suggest) that her "young age" is determinative. And that is not the law. The law requires that, because future damages (a.k.a. front pay) are "often speculative," the District Court must have "flexibility and wide discretion" in crafting such a remedy. Shore v. Federal Express, 42 F3d 373, 378 (6th Cir 1994). And there are certain factors that must guide the award of future damages, including mitigation of damages, "the availability of employment opportunities, the period within which one by reasonable efforts may be reemployed, the employees working life expectancy, [and] the discount tables to determine the present value of future damages," among others. Roush v. KFC, 10 F3d 392, 399 (6th Cir 1993). Varlesi provided evidence about, and the District Court considered, these factors, including her mitigation efforts, her inability to enroll in other graduate programs after her failure at WSU, her job search and the prior job offer, and Bureau of Labor statistics.

Robert L. Abell
www.RobertAbellLaw.com

 

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The Business-Judgment Instruction in Discrimination and Retaliation Cases

The business-judgment jury instruction used in discrimination and retaliation cases is to the effect that an employer has discretion over business judgments even if exercised wrongly. It is a means by which employers seek to obfuscate issues (such as by jurors confusedly equating exercised wrongly with exercised unlawfully) and escape liability for discriminatory and/or retaliatory employment practices. But are employers entitled to the business-judgment instruction as a matter of course? "No" answered the Sixth Circuit recently in Varlesi v. Wayne State University, a pregnancy discrimination and retaliation case in which a jury awarded the plaintiff $848,690 in damages.

The plaintiff, Tina Varlesi, was working on her M.S. in Social Work at Wayne State University, a two-year graduate degree program consisting of both classroom and "field" work at an agency. Varlesi was a star student in her first year. She received "excellent grades in her classes" and perform so well and her fieldwork that "one agency even offered her a job, to commence after she obtained her degree." arlesi became pregnant following her first year, "although she was not married, and during her placement in the fall semester of her second year, the trouble started (though her classroom grades remained excellent)."

The "trouble," despite Varlesi's repeated complaints and despite her continued excellence in her class work, resulted eventually in her being dismissed from the program. She filed suit claiming pregnancy discrimination and retaliation in violation of Title IX and Michigan's Elliott-Larsen Civil Rights Act. The jury awarded her damages of $898,690 ($148,690 economic; $200,000 future; and $500,000 non-economic).

On appeal, the employer, Wayne State University, argued, among other things, that the District Court erred in rejecting its request for a "business-judgment instruction, i.e., Wayne State had discretion over its business judgments, even if they are wrong." This argument was summarily rejected by the Sixth Circuit which explained:

But the decision to discriminate and retaliate against a student and then cover it up, is not a business judgment.

The Sixth Circuit's opinion was authored by Circuit Judge Alice Batchelder, who is not known as generally receptive to plaintiffs in employment discrimination cases, joined by Circuit Judges David McKeague and Jane Stranch.

Robert L. Abell
www.RobertAbellLaw.com

 

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Employer Not Entitled to Employment-At-Will Jury Instruction in Retaliation Case

Most employees in Kentucky are at-will employees, meaning their employment can be terminated at any time and for about any reason - no matter its moral indefensibility - except for the limited few statutory, constitutional and other legally-protected reasons.  Put another way, the employment-at-will doctrine means an employee can be fired for any reason except an illegal one.  Retaliation against an employee is an illegal reason to fire an employee in Kentucky, one that is specifically prohibited by the Kentucky Civil Rights Act, KRS 344.280. 

In its important recent decision in Powell v. Asbury University, the Kentucky Supreme Court considered whether the trial court should have given an employment-at-will jury instruction as requested by the employer.  The Court found this argument to have "no merit" and explained as follows:

The instructions given ... were sufficient to convey the applicable law to the jury. They required the jury to find that Powell engaged in protected activity in complaining about perceived sex discrimination; that she had a good-faith, reasonable basis for her complaints; that she suffered adverse employment action; that Asbury officials responsible for the action against her were aware of her complaints; (unnecessarily) that her complaining about sex discrimination was a substantial and motivating factor in the adverse employment action; and that but for her complaining about sex discrimination, the adverse employment action  would not have been taken.  In other words, the instructions properly directed the jury to find in Powell's favor if they believed from the evidence that Asbury's retaliatory animus against Powell's protected activity was a but-for cause of the non-renewal of her employment.  No more was required. That Powell was an at-will employee is no defense to illegal retaliation. 

Powell is an important decision regarding claims under the Kentucky Civil Rights Act and particularly retaliation claims, as has been noted in numerous prior posts: Retaliation Claims Under the Kentucky Civil Rights Act, But For Causation and Retaliation Claims Under the Kentucky Civil Rights Act, Retaliation Need Only Be A Factor Not the Only Factor to Violate the Kentucky Civil Rights Act, and Retaliation, the Temporal Proximity Doctrine and an Employee's Continuing Complaints about Discrimination.

Robert L. Abell
www.RobertAbellLaw.com

 

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