Federal trials have become as rare as hen’s teeth. In the appeal of a jury verdict in Phillips v. Leggett & Platt, Inc., we see part of the reason why. A Mississippi jury found that the defendant had discriminated against Jean Phillips on the basis of her age. Ms. Philips was 66 years old when Leggett & Platt closed a manufacturing facility in one town and told Ms. Phillips she alone could not transfer to a neighboring community. The accounts payable clerk was thus out of a job after 24 years with the defendant. Within four days, her managers called her back to work saying they would need her for a temporary job at the nearby facility. The temporary job would would have no end date. The job included the same pay and benefits and the same job duties. Ms. Phillips hoped now she would essentially have her old job back.
A younger woman was allowed to transfer to the nearby facility and she would perform the accounts payable clerk duties formerly performed by Ms. Phillips. That woman left and another younger woman was hired to fill the position. Still, Ms. Phillips continued in her temporary position hoping she would be awarded a permanent position. After six months, her temporary position came to an end. She then filed a complaint with the EEOC alleging age discrimination.
At trial, the employee won and was awarded $48,000 in lost pay and benefits. The employer appealed. An age complaint must be filed within 180 days of the act of discrimination. Leggett & Platt argued that the plaintiff should have filed her EEOC complaint within six months of first being notified that she would not have a position at the other plant, not within six months of the end of her temporary position. The Fifth Circuit agreed with the employer and overturned the jury verdict. The two judge majority found that equitable tolling did not apply. That is, the court rejected the employee’s argument that the employer’s actions mis-lead her into postponing any complaint of age bias.
The dissent points out that the two judge majority ignores Fifth Circuit precedent that whether to apply the doctrine of equitable tolling should be left up to the trial judge’s discretion. The trial judge is in a much better position to assess credibility issues. Indeed, as the dissent adds, the facts supporting employer deception are much stronger in this Phillips case than the 1991 case relied on by the court. Legget & Platt coincedentally, let Ms. Phillips go the second time within days of her 180 day deadline to file an EEOC complaint. Ms. Phillips was called back to work for an indefinite job just as any at-will employee at the same pay as her old job. She did not file a complaint earlier because she thought and hoped she now had her old job back.
The majority opinion finds that the employer’s actions ere not deceptive. Their actions ere not intended to mis-lead the plaintiff. The majority’s fact conclusion might be appropriate, says the dissent. But, it is simply a decision better left to the trier of fact. "The bite of such inconsistencies – and the cld fact that the indefinite period of the recall lastd just over 180 days – is better entrusted to the better-informed discretion of the district [trial] judge."
And, that is part of the reason why trials in US district court have become so rare. As I mentioned here, federal appeal rates heavily favor employers. Employers succesfully obtain reversal of jury verdicts about 41% of the time they seek such reversals. While, employees only succeed 9% of the time. And, among the 11 federal appellate courts, the Fifth Circuit is one of the circuits most likely to overturn a jury verdict. Federal appeals courts as a whole simply do not respect jury verdicts.