Kentucky Employment Law Blog

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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[W]e must take this opportunity to make clear that retaliatory motive need not be the sole, or even primary, cause of the challenged employment action; rather, it need only be a (not 'the') but-for cause of the decision.

This causation standard for claims under the Kentucky Civil Rights Act the Kentucky Supreme Court clarified recently in Asbury University v. Powell.

The Court further advised:

The fact that other, non-retaliatory reasons may have contributed to an adverse employment action does not necessarily preclude recovery, so long as there is evidence sufficient to permit the factfinder to conclude that unlawful retaliatory motive was so integral to the adverse action that more likely than not the action would not have been taken had the employee not engaged in protected activity. 

The upshot of all this: retaliation or discrimination need not be the only factor, reason or basis for an adverse employment action to sustain a claim under the KCRA but it must be a significant factor.

Powell is an important decision for Kentucky discrimination and retaliation law and been the subject of previous posts: Retaliation Claims Under the Kentucky Civil Rights Act and But For Causation and Retaliation Claims Under the Kentucky Civil Rights Act. 

Robert L. Abell
www.RobertAbellLaw.com 

 

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Can a Nondecisionmaker Provide Circumstantial Evidence of Discrimination Through a Lay Opinion

The answer is "yes" as the Sixth Circuit reiterated recently in Denoma v Hamilton County Court of Common Pleas, No 14-4058 (September 14, 2015). The court here reversed a summary judgment as to the plaintiff's failure-to-promote gender discrimination claim.

In support of her claim, the plaintiff had cited testimony from two coworkers, Clancy and George, regarding the consistent and persistent favoritism that their supervisor showed toward male employees. The testimony was particularly important, because the Sixth Circuit when assessing the pretext element of a failure-to-promote claim; where the plaintiff's qualifications or at least equal or slightly better, he or she is required to present evidence of a discriminatory atmosphere in the workplace; conversely, a plaintiff presenting evidence of clearly superior qualifications negates the need to present other evidence of discrimination.

The Sixth Circuit observed as follows regarding Denoma's evidence of a discriminatory atmosphere in the workplace:

As discussed earlier, Clancy and George testified that they believed Appellant's opportunity for advancement was limited by her gender or by her exclusion from a gendered in-group. We have held that non-decision-makers may provide circumstantial evidence of discrimination by opining the employees membership of a protected class way role in employment decision. See Hopson v Daimler Chrysler Corp, 306 F3d 427, 437 (6th Cir 2002) (holding that a manager provide circumstantial evidence of discrimination by testifying at his deposition that he believed the plaintiff's race was a factor in the company's decision not to promote him, even though the manager was not involved in the decision); Carter v University of Toledo, 349 F3d 269, 271-72, 274-76 (6th Cir 2003) (holding that a black plaintiff had created a genuine issue of fact on the pretext issue by testifying that a university vice Provost, when asked by the plaintiff whether her contract would be renewed, so this appeared to not want to employ black professors). Here, neither Clancy nor George specifically opined that appellant's application for the [ ] position was rejected due to her gender. Their opinions' lack of specificity detracts from their probative value regarding the reasons for Appellant's non-promotion, but does not render them immaterial.

Robert L. Abell
www.RobertAbellLaw.com

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Does Kentucky Require Expert Medical or Scientific Testimony to Support A Claim for Emotional Distress Damages in an Employment Discrimination or Retaliation Case?

Following the Kentucky Supreme Court's 2012 decision in Osborne v. Keeney recognizing a cause of action for negligent infliction of emotional distress and establishing as an element of that tort that the emotional distress be serious as proved by expert medical or scientific proof, some courts ran away from the narrow and specific holding and concluded that the case established a generally applicable rule of Kentucky law requiring expert medical or scientific proof to sustain any and all claims for emotional distress damages no matter their context. This tendency was particularly pronounced in Kentucky's federal district courts. 

The Kentucky Supreme Court's recent decision in Banker v. University of Louisville Athletic Association should put to rest the defense argument that expert medical or scientific proof is necessary to sustain a plaintiff's claim for emotional distress damages in a discrimination or retaliation case. The Court reinstated a jury's award of $300,000 in damages for Banker's emotional distress caused by her wrongful termination and described her proof as follows:

In support of her claim of emotional distress damages, Banker testified that she suffered significant stress with accompanying loss of appetite, weight loss, depression, and sleep disturbance. Banker testified that she had not sought any treatment for her symptoms because she lost her health insurance and could not afford her COBRA payments. In addition to her own testimony, Banker offered testimony from her mother that Banker seemed stressed and lost weight during her time at the University and that Banker was devastated when she lost her job.

The decision in Osborne v Keeney, although it obviously did not establish a generally applicable rule that emotional distress damages must be supported by expert medical or scientific proof, was an important decision for Kentucky law, as we've discussed in our other blog ... and Justice for All: Kentucky Legal Malpractice: The Case-Within-A-Case Approach; Kentucky Legal Malpractice: Lost Punitive Damages Not Recoverable Kentucky Supreme Court Rules; and Kentucky Abandons The Physical Impact Requirement for Recovery of Emotional Distress Damages. 

Banker's lawyer was Bryan Cassis from Louisville, who deserves kudos for his fine work on his client's behalf. 

We've also discussed the Banker decision on a post on our website: Retaliation & Discrimination - Proving Emotional Distress.

Post Script:

In a later case, Indiana Insurance Company v. Demetre, the Kentucky Supreme Court made explicit what the Banker case suggests: "Osborne's requirement of expert medical or scientific proof is limited to claims of intentional or negligent infliction of emotional distress."

Robert L. Abell
www.RobertAbellLaw.com

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Witness Changed Her Testimony Because "She Wanted Her Testimony to Reflect the Correct Answer" District Judge Explains

Can a district judge, while considering a motion for summary judgment, provide an explanation and/or rationale for the changing testimony of one of the defendant's managing agents? Well, actually, that's not the question, because the answer is known to be yes. The real qusetion is can they do it and always get away with it? The answer is "no" it appears from the Fifth Circuit's recent opinion in Burton v. Freescale Semiconductor. 

Burton was a disability discrimination and retaliation case.  The employer was granted summary judgment by District Judge David A. Ezra of the Western District of Texas.  Judge Ezra was particularly solicitous of the employer's management, going so far as to offer on his own a rationale and explanation for the changing testimony of one of the employer's management personnel.

Here's what happened:  Bruce Akroyd, the employer's decision-maker, explained that he elected in part to terminate Burton because Burton's supervisor, Patricia Alvarez, had told him that Burton had used the Internet at work without authorization.  So, naturally, Alvarez was asked at her deposition about what she had told Akroyd about Burton's Internet use. The Fifth Circuit summarized her deposition testimony as follows:

Alvarez, however, testified she never talked to Akroyd about Burton's performance. She also testified she did not know who made the recommendation to terminate Burton and did not participate in any conversation about terminating Burton's assignment. Following a break in the deposition, Alvarez then changed her testimony to say she in fact recommended Burton's termination -- but that she believed she did so "slightly before" the ... Internet incident, and it was not to Akroyd at all but rather to one "Shawn Stroud," her "section manager."

So, after a break in her deposition during which time Alvarez' had an epiphany, was counseled by defense counsel as to the unhelpfulness of her testimony or something else perhaps happened, the employer's agent came up with something very different and much more helpful to the employer.

Supposedly the whys and wherefores in such changes to a witness's testimony are for a jury to figure out. Too often, though, trial court judges take the task upon themself, as did U.S. District Judge David A. Ezra in this case as the Fifth Circuit explained:

The district court [leapt to the defense of the company's witnesses], reasoning that "a person cannot be expected to be able to recall every single detail from two-and-one-half years prior" and rejecting Burton's "attempts to pick apart each person's deposition testimony line by line." Similarly, the district court reconciled Alvarez's changing testimony by concluding that she changed it because "she wanted her testimony to reflect the correct answer."

Perhaps doubly disappointing is that Judge Ezra, while supplying the company with what he regarded as a winning explanation, did not bother or see the need to characterize Alvarez's evolving testimony as reaching ultimately the true answer, as opposed to the merely correct. Perhaps Judge Ezra had read Stanley Fish's blog posting for the New York Times a while back, The True Answer and the Right Answer, and was taken particularly by this observation by Mr. Fish: "The right answer is the answer a system invested in its own machinery will recognize no matter what the true facts may be." Judge Ezra invested as he appeared to be granted summary judgment to Freescale.

That, however, was the most basic of errors as the Fifth Circuit explained in reversing Judge Ezra:

This approach is inconsistent with fundamental rules governing summary judgment. By choosing which testimony to credit and which to discard, "the court improperly weighed the evidence and resolved disputed issues in favor of the nonmoving party.

Judge Ezra was appointed to the U.S. District Court in 1988 by President Reagan. He surely knows better than this. Any yet found himself so invested in the summary judgment machinery to which the U.S. district courts have devolved that he could not wait for resolution of the true facts.For a further discussion on the decline of the nation's federal district courts: Arthur Miller, Simplified Pleading, Meaningful Days in Court and Trials on the Merits: The Deformation of Federal Civil Procedure in the New York University Law Review.

Robert L. Abell
www.RobertAbellLaw.com

 

 

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The Kentucky Civil Rights Act and the Intracorporate Conspiracy Doctrine; Will this Alien Doctrine Arising from the Sherman Act Invade the Commonwealth and Frustrate Its Anti-Discrimination Goals?

The Kentucky Civil Rights Act is very ambitious and aims to cure or deter many wrongs and wrongful practices. The General Assembly stated some of its goals and aims as follows:

to safeguard all individuals with in the state from discrimination … Thereby to protect their interest and personal dignity and freedom from humiliation, to make available to the state therefore productive capacities, to secure the state against domestic strife and unrest which would menace its democratic institutions, to preserve the public safety, health, and general welfare, and to further the interests, rights and privileges of individuals with in the state

Nevertheless, some of the esteemed district judges in the west have determined that the intracorporate conspiracy doctrine, a statutory construction tool invented to make sense of the Sherman Antitrust Act, should be applied to trim the reach of the Kentucky Civil Rights Act. But no Kentucky appellate court has ever considered or applied the intracorporate conspiracy doctrine in any case in any context.  

I argue it should not be applied to an aiding and abetting an unlawful employment practice claim under KRS 344.280(2) in a Court of Appeals brief in Cowing v Commere. 

25 other states and the District of Columbia have civil rights laws similar to Kentucky providing causes of action for aiding and abetting unlawful discrimination.

Robert L. Abell
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Retaliation: What Is Protected Activity?

Title VII prohibits retaliation against an individual or employee that reports, protest or opposes a discriminatory practice (or at least what is reasonably and in good faith believed to be a discriminatory practice) directed at herself or others. But in the real world individually is rarely craft their statements knowingly within legal confines, so one issue can arise  in retaliation cases regarding whether or not discrimination was truly protested or if the statement(s) were simply more of a general nature.

The Sixth Circuit had cause recently to consider in Yazdian v. ConMed Endoscopic Technologies Inc. whether the plaintiff's statements amounted to protected activity. In the course of reversing a summary judgment granted by the district court, the court cited the following as "individually and together qualify[ing] As Title-VII protected activity":

• "I'm going to respond with counsel."
• "I'm going to bring you up on charges before ..."
• "Bring a lawsuit against [the supervisor]"
• "Hostile work environment."
• "I will have an attorney respond."
• "I will be responding with charges."

More generally, the court explained that "an employee who complains that an employer is creating a 'hostile work environment' engages in Title-VII-protected activity when the context objectively reveals that the employee is using the expression to complain about repeated abusive discriminatory comments or treatment."

The Sixth Circuit's opinion was authored by Circuit Judge Karen Nelson Moore, and joined by Chief Judge Guy Cole and Circuit Judge Eric L. Clay.

We have addressed other questions about retaliation on the website:

Is Telling a Supervisor To Stop His Sexual Harassment Protected Activity?

Can my employer fire me because I filed a charge of discrimination with the Equal Employment Opportunity Commission?

Can I be fired if I testify in court in a co-worker's discrimination lawsuit and my testimony supports the case against our employer?

Robert L. Abell
thiswww.RobertAbellLaw.com

 

 

 

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Pregnancy Discrimination in the Supreme Court

Linda Greenhouse for the New York Times offers an excellent essay on the evolution of pregnancy discrimination law, the Pregnancy Discrimination Act and the case, Young v. UPS, recently argued in the Supreme Court: Heavy Lifting: The Supreme Court and Rights of Pregnant Workers.

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Back in the 1970's Justice Ruth Bader Ginsburg (the "Notorious RBG") litigated and lost pregnancy discrimination cases in the Supreme Court; then skillfully advocated for Congress to pass what became the Pregnancy Discrimination Act. Now, in a new case, Young v. UPS, the Pregnancy Discrimination Act is again before the Court. Dorothy Samuels discusses this interesting confluence of history in the New York Times: Deja Vu Pregnancy Discrimination. 

Robert L. Abell
www.RobertAbellLaw.com

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