Kentucky Employment Law Blog

Proof of Pretext - How Much Is Needed?

Employment discrimination, retaliation and wrongful termination cases often come down to the issue of pretext -- is the employer's explanation for doing whatever adverse was done not more than a lie, a lie offered to try and coverup something unlawful? Being caught in a lie creates all sorts of problems for employers and parties in all sorts of cases. 

The Sixth Circuit recently examined the question of pretext in Kirilenko-Ison v. Bd. of Ed. of Danville, Ky. The plaintiffs were two school nurses who voiced their concerns about the medical assistance that was being offered to two students. For their efforts, they claimed, one was suspended and the other was not hired when later a full-time opening came open. The district court, Hon. Danny C. Reeves of the Eastern District of Kentucky, granted the school board a summary judgment on all claims. The Sixth Circuit reversed.

The court found that both the plaintiffs had presented triable issues of fact on the issue of pretext. The court's discussion and examples are helpful.  First, "[a]ll that a plaintiff must show in order to overcome a defendant's motion for summary judgment at this stage is that a reasonable juror could find that the defendant's reasons were pretextual. The plaintiff does not need to prove pretext, she only needs to show that the question of pretext is a genuine factual dispute." So the proof at the summary judgment stage need not knock down the Great Wall of China, and the following was sufficient:

• the school principal screamed at them and told them to do what the parent of a child with serious health problems wanted, notwithstanding the negative impacts on the child and on their nursing licenses
  
  
• a threat that one's continued advocacy could cost her her job
  
  
• allegations in a third party's resignation letter that the school board was pressuring the nurses to go along and shut up
  
  
• one's long work history for the school board and the absence of prior disciplinary measures
  
  
• the temporal proximity between one's most strenuous advocacy and her suspension.

Here, as in all things, context is important. Consider first the supposed sins of the plaintiffs: advocating for proper and necessary medical care for students, not refusing, advocating, which would seem exactly what they were hired to do and what the Kentucky Board of Nursing requires them to do. Second, there is bullying and threatening followed by action that is at best disproportionate. That doesn't make sense; reasonable jurors could easily view this type of scenario as retaliatory and the school board's explanations unworthy of credence. 

This case is the topic of an earlier post: Causation and Lapse of Time In Retaliation Cases.

Robert L. Abell
www.RobertAbellLaw.com

 

Tender-Back Doctrine Inapplicable to Title VII and Pregnancy Discrimination Claims, Sixth Circuit Rules

The common law tender-back doctrine does not apply to Title VII and pregnancy discrimination claims the Sixth Circuit ruled recently in McClellan v. Midwest Machining Inc.

Jena McClellan had established herself pretty well as a telemarketer at Midwest Machining until she had to report that she was pregnant. Her supervisor commenced a litany of negative comments and, about three months later, she was fired. When McClellan was fired she was made to meet with the company president, Philip Allor, who, McClellan claimed, pressured her into signing an agreement releasing all her claim in exchange for $4,000.  McClellan did sign the agreement.

McClellan was paid the severance money and later filed a pregnancy and sex discrimination lawsuit. About three weeks after the suit was filed and before any answer was due, McClellan paid back the $4000 she'd been paid to release her claims. The district court allowed limited discovery  as to whether McClellan had entered the severance agreement knowingly and voluntarily. The corporation moved for summary judgment; although the district court observed that there were disputed issues of fact regarding whether McClellan had entered the agreement knowingly and voluntarily, it gave the corporation a summary judgment because McClellan didn't pay the $4000 back before she filed suit.

The "tender-back doctrine" is from contract law and holds that "contracts tainted by mistake, duress, or even fraud are voidable at the option of the innocent party" but "before the innocent party can elect avoidance, she must first tender back any benefits received under the contract." But if the innocent party fails to do so within a reasonable time of learning that she can rescind the contract, she ratifies the contract and makes in binding.

The Sixth Circuit reversed, explaining that "requiring recently-discharged employees to return their severance before they can bring claims under Title VII ... would serve only to protect malfeasant employers at the expense of employees' statutory protections at the very time that those employees are most economically vulnerable" and held that "the tender-back doctrine does not apply to claims" brought under Title VII.

Robert L. Abell
www.RobertAbellLaw.com

Pregnancy Discrimination in the American Workplace; A Rampant Problem the New York Times Finds

"Throughout the American workplace, pregnancy discrimination remains widespread." This the New York Times concludes in an excellent analysis: Pregnancy Discrimination Is Rampant Inside America's Biggest Companies.

There are legal protections and remedies under both federal and Kentucky state law. A reasonable person can ask how effective they are if the problem they aim to eliminate is and remains widespread. The conclusion is obvious: not good enough.

This employment discrimination lawyer says the best solution is found in better laws that offer greater remedies. What I'm talking about is real damages: when companies pay through the nose, they may change their conduct, more or less like individuals do.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

 

The Cat's Paw; Proximate Cause and the Kentucky Civil Rights Act

For reasons beyond explaining employment discrimination law has incorporated the "cat's paw doctrine" to dress up what is a proximate cause analysis. The "cat's paw doctrine" appeared in the Court of Appeals recent decision, Lindsey v. Bd. of Trustees of the University of Kentucky.

Tonya Lindsey, an African-American woman, began working in healthcare for UK in 1990. She claimed that she was passed over for a promotion on three separate occasions on account of her race and gender. She later added a retaliation claim as well, one arising, as Lindsey pleaded her complaint, from the actions of her supervisor, Lisa Turner. Turner actually became Lindsey's supervisor after Lindsey had filed the discrimination suit.

The Fayette Circuit Court granted a summary judgment to the defendants, a decision that appeared to leave Lindsey's case in the shallows at best. Turner, a couple of months later, filed a cross-claim against UK and claimed, among other things, that "she was pressured by her superiors to closely scrutinize Lindsey so that Lindsey could be fired" and that he succumbed to this pressure out of fear for her own job. This caused the circuit court to vacate the summary judgment. To shorten the story, Turner later dismissed her cross-claim, and the circuit court granted summary judgment again to the defendants and this time on all claims.

The Court of Appeals reversed as to the retaliation claim, and invoked the "cat's paw" in so doing. Turner had not known of Lindsey's discrimination suit, but her assertion that she had been directed to dig up dirt, so to speak, on Lindsey and her further assertion that she feared for her job if she did not do so created a fact issue as to whether Turner was simply the unwitting and proximate cause of an unlawful retaliatory intent by the higher-ups at UK. The Court explained as follows:

This is known as the "cat's paw" theory of liability. A plaintiff alleging liability under the cat's paw theory seeks "to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision." Thus, even if Turner herself lacked discriminatory intent, UK many nonetheless be liable if Turner's decision to recommend Lindsey's termination was caused by one of its agents acting with a discriminatory intent.

Lindsey was represented by the now-late William C. Jacobs. Bill Jacobs was one of Kentucky's great lawyers; he represented the plaintiff in the landmark Kentucky sexual harassment case, Meyers v. Chapman Printing, 840 S.W.2d 814 (Ky. 1992), and represented the plaintiff in a case that changed the way public library systems are funded in Kentucky, LFUCG v. Hayse, 684 S.W.3d 301 (Ky. App. 1984).

Robert L. Abell
www.RobertAbellLaw.com

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Backpay; What Does a Discrimination Plaintiff Have to Prove?

A successful plaintiff on a discrimination claim is presumptively entitled to back pay in an amount to make them whole, "that is, to place [them] in the position [they] would have been in but for discrimination." Rasimas v. Michigan Dept. of Mental  Health, 714 F.2d 614, 626 (6th Cir. 1983). Ok, but what is it that a plaintiff has to prove regarding the amount of backpay owed? The Sixth Circuit provided some guidance in its recent decision in Pittington v. Great Smoky Mountain Lumberjack Feud. 

Pittington prevailed at trial against his former employer on claims that he was retaliated against for his involvement with his wife's sexual harassment complaint in violation of both Title VII and Tennessee law. The jury wasn't too generous though; it did not award Pittington any compensatory or punitive damages and only $10,000 in back pay, which was only about 25% of what Pittington requested. After the district court refused his motion to order a new trial on damages, Pittington appealed. The Sixth Circuit reversed and ordered the district court to revisit or retry the damages issue.

Pittington's proof at trial regarding backpay was not too specific. The defense attorney suggested to Pittington at trial that he had received a pay raise in defendant's employ to $10.50 per hour, although Pittington himself was not too sure about that. In any event, Pittington's lawyer argued to the jury using an hourly rate of $10.50 multiplied by 40 hours per week (the defense attorney, in addition to suggesting to Pittington that he got a pay raise, also solicited testimony that Pittington sometimes worked more than 40 hours per week) while deducting lesser wages that Pittington earned at other jobs between the time of his firing and trial for a total of $40,632.50. This was enough, the Sixth Circuit ruled, to establish Pigginton's backpay damages with sufficient reasonable certainty, which is all that is required.

The mistake made by the district court, the Court explained, was to assert that it was Pigginton's burden to show that he had acted diligently to mitigate his damages sustained by reason of the former employer's wrongdoing. The Court explained: "Such critiques were unfounded, as Pittington, did not bear the burden of producing evidence as to his efforts at mitigation." So the district court, Hon. Pamela Lynn Reeves of the Eastern District of Tennessee, blew the issue, going at it from exactly the wrong direction.

The defendant-employer failed, the Court explained further, to offer, as was its burden, "evidence indicating that substantially equivalent positions ... were available and that [Pigginton] failed to use reasonable care and diligence in seeking such positions." So it was the employer's burden to show Pigginton had unreasonably failed to mitigate the damage done by its wrongdoing, and merely suggesting criticisms by way of cross-examination was not enough.

Judge Karen Nelson Moore authored the Sixth Circuit's opinion and was joined by Judge Martha Daughtrey; Judge Jeffrey Sutton dissented.

Notwithstanding the Sixth Circuit's ruling, plaintiffs would be well-advised to present themselves evidence of how they labored to mitigate the harm done by the defendant's wrongdoing. Doing so, as a general matter, presents them as a hard-worker and serves to buttress a claim for compensatory damages for emotional distress and mental anguish. Pigginton's proof as to backpay was barely sufficient and only because the defendant's was nonexistent did Pigginton prevail in the Sixth Circuit. Notably, the jury awarded him no emotional distress damages.

Robert L. Abell
www.RobertAbellLaw.com

 

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Direct & Indirect Evidence in Employment Discrimination Cases; All Just a Single Pile

Evidence is evidence. That unremarkable observation is at the heart of the 7th Circuit's remarkable opinion in Ortiz v. Werner Enterprises in which it endeavors to simplify the evidence doctrines that "has complicated and sidetracked employment discrimination litigation for many years." 

The case is a run-of-the-mill national origin discrimination case; the plaintiff claimed he was fired, because of his Mexican ethnicity.  The district court, Judge John Darrah of the Northern District of Illinois, granted the employer summary judgment. One of the district judge's errors was the "effort to shoehorn all evidence into two 'methods,' and its insistence that either method be implemented by looking for a 'convincing mosaic,' detracted attention from the sole question that matters: Whether a reasonable juror could conclude that Ortiz would have kept his job if he had a different ethnicity, and everything else had stayed the same." 

After reviewing and overruling a number of its own sloppily-written opinions that had added to the complications and observing the inefficacy of its efforts to get understood what an evidentiary mosaic is (a metaphor for evidence making a persuasive case), the 7th Circuit got to this point:

Evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself - or whether just the "direct" evidence does so, or the "indirect" evidence. Evidence is evidence. Relevant evidence must be considered and irrelevant evidence disregarded, but no evidence should be treated differently from other evidence because it can be labeled "direct" or "indirect."

Try the argument: "Judge, evidence is evidence." It's a good one, right.

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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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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Must a Plaintiff Sue Over the First Act of Discrimination or Forfeit Her Right to Sue Over Any Act of Discrimination?

After awhile, enough is enough and even the most tolerant and forgiving person can take no more. But does a plaintiff forfeit her right to sue for any act of discrimination within the limitation period, if she let the first one pass and it was beyond the limitation period? This issue came before the Seventh Circuit recently in Stuart v. Local 227, 14-1710 (November 14, 2014).

The plaintiff, Stuart, is a professional driver, and she wanted union referrals for driving jobs related to movie and TV productions, because those driving jobs paid the most. The local never in its 70 year history had referred a female driver for any of the TV or movie jobs. At the end of 2009, the local adopted a rule that anyone who wanted one of the movie/TV jobs had to complete and submit an application for referral, which Stuart did in March 2010. Months later, after receiving no referrals, Stuart called the local's business agent "a number of times"; the business agent, in essence, said "don't call me, I'll call you." In the four and a half years since, Stuart has received no referrals, although there has been no lack of work.

Stuart filed an EEOC charge of sex discrimination in October 2011, and received her right to sue letter in September 2013. She filed suit timely within the 90 day period in December 2013. The local, in its answer, pleaded the affirmative defense that the administrative statute of limitations had expired, because Stuart did not allege in her complaint any discriminatory actions within the 300 day period proceeding filing of her EEOC charge.

The district court, Judge Milton Shadur, without motion from the local ordered Stuart to respond to the statute of limitations defense. Stuart explained in response that the local had not referred her any of the numerous movie and TV project jobs in the 300-day period. The district court ruled that Stuart's suit was untimely, and that she had known since 2005 that the local discriminated based on gender, noting that her complaint had alleged that she had not been referred any jobs going all the way back to 2005. The Seventh Circuit, in a rather stinging opinion authored by Judge Richard Posner, reversed, making two essential points:

1. "A plaintiff is not required to negate an affirmative defense in his or her complaint."
   
   
2. "There is no rule that a plaintiff who has been repeatedly discriminated against by her employer cannot challenge any of the discriminatory acts under Title VII unless she files her EEOC charge within 300 days after the first such act. ... That would be an absurd rule. It would require employee to infuriate her employer or union by complaining about what might be an inconsequential act of discrimination that she did not expect to be repeated."

So the case was remanded for further proceedings, although before a different district judge based on the "abruptness and irregularity of the district judge’s handling of this case (we can’t understand his deciding to dismiss the complaint with prejudice, thereby preventing the plaintiff from amending the complaint, or his instructing his law clerk to request the plaintiff’s EEOC charge from the plaintiff’s lawyer, without telling the defendant, even though the charge was not part of the record), and the unmistakable (and to us incomprehensible) tone of derision that pervades his opinion, we have decided that further proceedings in the district court should be before a different district judge."

 Judge Posner also took pains to explain the idiom, "hoist by her own petard":

“Hoist with his own petard,” famously spoken in Hamlet, means “lifted” by the explosion of one’s own little bomb—a “petard” is a small bomb.

Robert L. Abell
www.RobertAbellLaw.com

 

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"Pretext" In "Substantial Factor" and "Mixed-Motive" Cases

Kentucky law uses a "substantial" factor or "mixed-motive" proof approach to all employment discrimination claims under the Kentucky Civil Rights Act, KRS Chapter 344, and in other employment cases as well, such as claims under section 342.197 of the workers compensation law. This proof standard stems from the now long ago rulings of the Kentucky Supreme Court in Meyers v. Chapman Printing, 840 S.W.2d 814 (Ky. 1992)(sex discrimination need only be substantial factor to violate KRS Chapter 344) and First Property v. Zarebidacki, 867 S.W.2d 185 (Ky. 1994)(employee only had to show that lawfully impermissible reason for discharge was substantial and motivating factor in 342.197 claim).

Pretext -- that the employer's proffered reason(s) for the adverse employment action is somehow suspect -- is, of course, a commonly litigated issue in discrimination cases.  The Sixth Circuit recently in Wallner v. Hilliard Lyons, 13-6548 (October 31, 2014), discussed the imperfect application of pretext analysis to mixed-motive cases:

... we note that the typical examination of pretext, which is geared toward single-motive claims, is only imperfectly applicable to mixed-motive cases. In a mixed-motive case, even if the employer's FMLA-neutral reason did have a basis in fact, did motivate the employer's action, and was sufficient on its own to motivate the employer's action, a mixed-motive FMLA plaintiff may still withstand summary judgment so long as her exercise of her FMLA rights also contributed to the employer's action. Because a mixed-motive plaintiff does not need to disprove the employer's stated reason for the adverse employment action but must show only that it was not the only reason for the employer's conduct, the traditional pretext analysis can be grafted only imperfectly upon a mixed-motive claim. (citations omitted).

The Wallner decision was discussed in a previous post: FMLA - Measuring the Temporal Proximity Between the Exercise of FMLA Rights and Retaliation.

Robert L. Abell
www.RobertAbellLaw.com