The question arrises in many discrimination cases how far back can the plaintiff go in presenting relevant evidence? Title VII itself provides that a complainant must file his/her complaint within 300 days of the act of discrimination. Can the plaintiff present evidence of harassing conduct before that 300 days started? Yes, of course. The theory of “continuing violation” has been around a long time.In Heath v. Board of Supervisors for Southern University, 850 F.3d 731 (5th Cir. 2017), Prof. Heath was a professor at Southern University. In her lawsuit, she alleged a male supervisor had harassed her for ten years before she field her complaint. in her lawsuit, the district court refused to allow evidence of harassment older than 300 days.

The court noted that in cases alleging hostile work environment, a plaintiff can generally present evidence of harassment older than 300 days, so long as one act of harassment does fall within the 300 day window. But, the lower court refused to treat Prof. Heath’s situation as continuing. Prof. Heath left the school on a sabbatical. So, said the lower court, harassment prior to the sabbatical could not be included in her lawsuit.

In looking at continuing violation, the lower court applied a three part test: 1) whether the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation; 2) whether the alleged acts are recurring or more in the nature of an isolated work assignment or incident; and 3) whether the act has the degree of permanence which should trigger an employee’s awareness of and duty to assert his or her rights. The district court focused on the third factor when it granted the defendant’s motion for summary judgment.

But, this test was used by Fifth Circuit decisions prior to the decision in National R.R. Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Pre-Morgan caselaw noted that the third factor was the most important. The Morgan case make an important distinction. It distinguishes discrete acts of traditional discrimination from hostile work environment claims. The human dynamics of harassment by a co-worker are different from those of a supervisor. Claims based on traditional discrete acts of discrimination are not subject to the continuing violation theory. Claims based on hostile work environment are.

As the Heath court noted, a hostile work environment claim is one based on death by a thousand cuts, not by one discrete act. In a hostile work environment, no one act can be pointed to as the one “unlawful employment practice.”

More importantly, the decision in Morgan rejected the view of circuits like the Fifth Circuit that formerly held that “the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct.” So, the Fifth Circuit recognized that the Fifth Circuit’s pre-Morgan test for the continuing violation doctrine was implicitly overruled to the extent prior cases held that the continuing violation doctrine does not apply when an employee was or should have been aware earlier of a duty to assert her rights. That the employee was on notice or not that an act of harassment gave rise to a valid claim is not relevant.

See the Fifth Circuit decision here.

Well, the San Antonio court of appeals recognized same sex harassment in Alamo Heights ISD v. Clark and now the Texas Supreme Court has overruled that decision. This has long been a difficult area of law for courts. In the federal court system, the Supreme Court reached a compromise of sorts. It recognized that harassment can be based on gender stereotypes, even if the harassers are not homosexual. See the decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). The Fourth Court of Appeals in Alamo Heights ISD v. Clark reached a similar result. The Fourth Court found there could be harassment under the state version of Title VII based on gender stereotypes that did not involve apparent homosexual conduct or desire.

I previously wrote about the Fourth Court’s decision here. As I noted then, the harassment by Coach Monterrubio included non-stop comments about Coach Clark’s buttocks and breasts. Coach Monterrubio discussed sexual intercourse frequently with Coach Clark and discussed her breasts almost daily. A second coach often joined in. The appeal concerns a plea to the jurisdiction. So, the issue is not whether Coach Clark can win her case, but whether she can simply advance a claim based on gender stereotyping. The Texas Supreme Court gets the last word and they say no, she cannot advance such a claim.

During the oral argument, Justice Guzman was troubled by the lack of obvious homosexual intent by Coach Monterrubio. Justice Guzman claims the jokes and bullying were not based on Coach Clark’s gender. The judge pointed out that Monterrubio’s remarks also suggested Coach Clark should be a stay-at-home mom where she could be “smug, wealthy and snotty.” But, it is disingenuous to argue that comments like these could not be linked to the plaintiff’s gender: “Wow, Coach, I think your boobs are going to pop out of your shirt!” Telling her that her thong underwear and the dimples on her buttocks were visible. And, upon receiving a candle from Coach Clark, Coach Monterrubio said she would make love next to her candle and think about Coach Clark. To claim these sorts of comments are not linked to her gender is a big stretch. This claim concerns a plea to the jurisdiction. The issue is not who wins at trial, but whether the plaintiff advance the claim.

The Texas Supreme Court rightly noted that courts which follow Oncale are divided regarding whether homosexual motive by the harasser is required. But, the Texas Supreme Court found it did not matter whether Coach Monterrubio was motivated by homosexual desire or not. The majority decision finds a paragraph in Oncale to provide two different methods of proof. Although, I read the same paragraph and do not see any sort of proscriptive injunction to lower courts. It is simply the Oncale court providing two possible examples of how a plaintiff could show same sex harassment under Title VII. They are examples, not rules.

The court is then troubled by the lack of any allegation on Coach Clark’s EEOC charge or in her lawsuit that Coach Monterrubio was motivated by homosexual desire. But, really, that was the point of Oncale, that a man could harass another man even though there was no homosexual desire on the part of either man. The Court claims that Oncale says a claim of homosexuality must be “credible.” But, the Oncale court was simply providing one example of how a person could allege same sex harassment and still be protected by Title VII. Indeed, in Oncale, there was no evidence or claim that the harassing men were homosexual. There was no evidence that the male victim was homosexual. Justice Guzman has found a requirement in Oncale that simply is not present.

Yet, there is ample evidence that the female harasser in Alamo Heights ISD v. Clark was focused on the victim’s gender, which is indeed a requirement of Oncale. Justice Guzman has completely mis-interpreted the decision on Oncale. The majority decision also fails to interpret the evidence in the light most favorable to the non-movant. It explicitly looks at the evidence in ways detrimental to her case. It looks for comments that do not suggest sexual motivation. In the end, this is yet another result-oriented decision from the Texas Supreme Court.

The majority decision is quite long, some 66 pages. Any decision that requires those many pages to make a point is stretching credulity. The majority decision devotes some 15 of those 66 pages to rebutting the dissent. See the majority decision here.

The minority decision makes a good point. If a male coach had said those same things to Coach Clark, there would be no doubt he was sexually harassing the young coach. But, because the harasser was female, the employer gets a pass. The dissent also noted that the majority decision fails to construe the facts in favor of the non-movant. It pointed to an incident in which Coach Monterrubio grabbed Clark’s buttocks during a photo shoot. That sort of incident does tend to show possible lesbian behavior. Yet, the majority decision dismissed it as “horseplay.” Justice Guzman drew conclusions when she should have simply allowed this created a factual issue. See the dissent here.

 

Incredibly, it appears the settlements concerning Bill O’Reilly and his sexual harassment required his victims to lie about the evidence. According to a CNN report, a settlement agreement with Andrea Mackris, a former Fox News producer, required her to lie even under oath by referring to the allegations as “counterfeit” or as “forgeries.” According to this same CNN report, the lawyer who claimed to represent Ms. Mackris switched sides in the midst of the negotiations for the settlement agreement and then represented Bill O’Reilly.

As Ms. Mackris’ current lawyer mentions, if true, that is a profoundly unethical step for any lawyer in any state. There is no situation in which it would be proper for a lawyer to switch sides during a lawsuit or during a negotiation. The ethical rules emphasize the appearance of impropriety. Even if the lawyer, Benedict Morelli, could offer some explanation for switching sides, changing sides would simply look improper.

These are serious legal allegations, the kind any lawyer would lose his license for. I am sure all these legal problems helped persuade the judge to allow three of Mr. O”Reilly’s settlement agreements to become public. Mr. O’Reilly asked the judge to seal the settlement agreements. But, the federal judge denied his motion. See CNN news report.

One of the many challenges with every employment case involves which judge hears the lawsuit. If the wrong judge is assigned to a given lawsuit, the chances  of prevailing diminish. Lauren Browning learned this when she filed a lawsuit in 2005 alleging she was discriminated against on the basis of her gender at Southwest Research Institute here in San Antonio, Texas. Dr. Browning was a scientist, the only female scientist in her department. She complained about discrimination in general and in regard to her pay. In response, she was threatened with firing and was told her travel reimbursement requests would be looked at very closely. The SWRI Administrator pounded his fist on her desk and accused her of abusing the travel rules at the Institute. Her supervisor kept a secret file on her. Her boss warned her not to go to HR about her pay issues, again. Dr. Browning quit. She filed suit a year later.

The employer moved for summary judgment. Magistrate Judge Primomo recommended granting the motion. In his Recommendation, he consistently construed the evidence in favor of the employer, not the employee. For example, he mentioned that Dr,. Browning’s supposed written complaints about discrimination did not clearly invoke discrimination. He never mentioned that she also complained verbally. His recommendation disregarded Plaintiff’s affidavit that she wrote on the back of one of her evaluations that she felt she was the victim of wage disparities based on her gender. Yet, the Magistrate did accept affidavit testimony from her superior. The magistrate was expecting a higher level of evidence from the plaintiff than from the defendant.

The Magistrate Judge discussed the plaintiff’s allegation that she was not promoted, while men with inferior qualifications were promoted. The Magistrate Judge concluded that the plaintiff claimed no supervisor “approached” her about seeking a promotion. The Magistrate was suggesting the plaintiff expected management to come to her about possible promotions, an obviously unrealistic expectation. But, the plaintiff’s claims involved much more than that. The plaintiff actually said there was no way for a scientist to learn of any promotion opportunity because the openings were not posted. Even if they were posted, there was no mechanism by which an employee could apply for given position. Again, the Magistrate Judge construed the available evidence against the employee.

The Magistrate Judge claimed the secret file on her could not have upset her, because it was secret. The Magistrate Judge never mentioned that keeping a secret file suggests illicit motive on the part of the supervisor. He was viewing the evidence in the light most favorable to the movant, not to the non-movant.

It did not help Dr. Browning’s case that she quit. After years of abusive treatment, Dr. Browning quit. That means in a lawsuit for Title VII discrimination, she must show she was forced to quit. Mag. Judge Primomo found the conditions were not so bad that she truly had to quit. In finding the conditions were not so bad, the Magistrate Judge relied on testimony from the management witnesses while disregarding Dr. Browning’s testimony.

The Magistrate even found an argument not advanced by the employer. The Magistrate claimed that having Dr. Browning interview her replacement was not humiliating because she did not yet know she would resign. Yet, there was no evidence in the record regarding when the plaintiff decided to resign. The Magistrate Judge was looking for evidence to help the employer, not the employee. Mag. Judge Primomo did the same thing in Heinsohn v. Carabin and Shaw, No. 14-CV-00094 (W.D.Tex.). In Heinsohn, Mag. Judge Primomo again came up with an argument that helped the employer which had not been advanced by the employer. A court should not enter a summary judgment for an employer based upon a reason not articulated by the employer but identified sua sponte by the district court. Thomas v. Eastman Kodak Co., 183 F.3d 38, 62 (1st Cir. 1999). The Magistrate Judge was trying to help the employer. Yet, at the summary judgment stage, his task was to construe evidence in favor of the employee.

Regarding summary judgment, the court must view the evidence in favor of the non-movant. The point of summary judgment is not to arrive at the truth, but to test the evidence and see whether there is enough evidence to justify a trial. A tie ought to go to the plaintiff. The Browning v. Southwest Research Institute case was complicated. The briefs for both sides exceeded 40 pages each. The plaintiff appealed to the appointed judge, Fred Biery. But, Judge Biery accepted the Magistrate’s finding with a very brief three page opinion. Judge Biery’s decision accepted the Recommendation with little discussion of the very complicated evidence.

The plaintiff then appealed to the Fifth Circuit in New Orleans. Dr. Browning drew a generally pro-employer judge, Edith Jones. Judge Jones issued a decision that does not discuss the evidence in any detail. Instead, the opinion simply refers to the plaintiffs’ “broad conclusory” allegations. The decision nitpicks the evidence to find objective facts supporting a failure to promote while disregarding the subjective use made of those apparent facts. For example, Dr. Browning is accused of making gratuitous negative comments about co-workers, as if that alone would justify a low evaluation. But, the better question is how were comparable male workers evaluated for same or similar offenses? Did male co-workers receive the same poor evaluations for a similar offense? That is the critical question. Judge Jones never asked that question. The Fifth Circuit decision looks at the incident in which her boss threatened her with termination when she complained about unequal pay and concludes they were simply discussing pay issues. Judge Jones minimized her evidence. Again, the judge construed the evidence not in favor of the employee, but in favor of the employer.

The Fifth Circuit decision never mentioned the incident in which the Administrator pounded his fist on Dr. Browning’s desk and said he would scrutinize Dr. Browning’s travel reimbursement requests. In the end, the Fifth Circuit opinion found nothing occurred other than the normal “petty annoyances” in any job. The Fifth Circuit and Judge Jones issued a result-oriented decision. Dr. Browning lost, again. See the Fifth Circuit opinion here.

So, in a case in which a woman complained about discrimination and was met with fist pounding and threats of termination, she could not even get a trial. The plaintiff appealed to the U.S. Supreme court. But, the Supreme Court accepts less than 1% of the appeal filed. Hers was not one of the lucky few.

Recently, Dr, Browning spoke with the Medium about her lawsuit experience. See Medium report here. Needless to say, she found the legal experience to be result oriented. Facts were less important than the fact that she was an employee and her case appeared in front of the wrong judges. Dr. Browning no longer works in her field. She was not able to find employment in the field she loved. The employer offered to settle her case, despite winning at the district court. Dr. Browning, however, declined to settle, since any settlement would require her to agree to a confidentiality clause. She insisted on her right to discuss what happened to her, both at her place of employment and in our civil justice system.

The Equal Employment Opportunity Commission has field suit agains Zachry Industrial for discriminating against persons with disabilities. According to the San Antonio Express News, Zachry Industrial operates a refinery in Pascagoula, Mississippi and it has fired workers after they notified their employer of a disability. Zachry Industrial is headquartered here in San Antonio. See San Antonio Express News report. Zachry Industrial employs 900 employees here in San Antonio and some 22,000 employees world wide.

At least three workers were fired after notifying their employer they suffered from some impairment. Of course, the employer should not fire persons who report a new impairment. Instead, the employer is required to engage in a discussion about accommodations the person might need and what accommodations the employer can provide. The lawsuit was filed in the Southern District of Mississippi.

Zachry Industrial was previously sued for discrimination based on gender. See EEOC press release here. In that lawsuit, the EEOC said the employer fired a woman after she complained about discrimination. Zachry Industrial was formerly known as Zachary Construction Corporation.

In a recent decision, the Texas Supreme Court found in favor of an employee. And, as far as I know it did not snow last July. In Green v. Dallas County Schools, No. 16-0214 (Tex. 5/12/2017), Paul Green a bus monitor, urinated on himself while on the bus. He was fired and sued. The jury awarded him $41,000 in lost pay and $125,000 in compensatory (emotional suffering) damages. He had been battling congestive heart failure and was taking medications which made him incontinent. Mr. Green had told the bus driver he needed to use a restroom but the driver ignored him. There were no students on the bus. Yet, the driver would not stop a a restroom. He eventually urinated into a bottle and got his pants wet. Three weeks later, he took a week off from work and was fired when he returned. The school said he put the safety of students at risk by peeing into a bottle and was unprofessional.

At trial, the parties agreed the plaintiff suffered from a disability. The only question at trial was whether he was fired because of his disability. The jury found he was. The Court of Appeals reversed and issued a take-nothing judgment, saying there was no evidence the disability caused the incontinence. The Texas Supreme Court, however, found  that the urinary incontinence itself was a disability, because it was a side effect of the underlying condition. The Court noted that at trial, the Plaintiff might not have argued that clearly to the court of appeals, that the incontinence itself was an impairment. But, the plaintiff certainly did mention to the court of appeals that the incontinence was part of his disability.

Dallas County Schools then argued that there was no evidence that the supervisors knew Green suffered from incontinence. But, noted the Supreme Court, Green himself testified that he told the decision-maker that he was taking a “fluid pill” that made him incontinent and that he suffered from a condition that made him urinate involuntarily. In reading the Fifth District’s opinion, the court did seem concerned that there was no “undisputed” evidence connecting the medication to incontinence. It seemed overly concerned about whether the evidence was disputed at trial – as if the evidence might not be disputed at trial. The court of appeals seems more concerned about re-weighing the evidence than in allowing the jury to draw an inference. This appeal strikes me as almost frivolous. It should have been an easy decision to uphold the jury. Some courts of appeals just seem determined to undermine a jury finding. See the Texas Supreme Court decision here.

Autism is becoming more and more common. Folks disagree about why, but all agree we see more and more of the diagnosis. The remarkable thing about persons with autism is they can display brilliance in a wide variety of subjects. Yet, many employers resist hiring persons with autism. The employer who do hire them really appreciate them. Microsoft is one. They hired Christopher with a degree in computer science. They wanted to hire persons with a diagnosis of autism. As one of the hiring managers mentioned, persons with autism are one of the great un-tapped niches in hiring. But, Jenny Lay-Lurie herself also has an impairment. She is deaf.

Ms. Lay-Lurie helped create a different sort of hiring process, one that relies less on the traditional job interview. Job interviews are hard for persons with autism. One symptom of autism is a lack of social skills. For a orson with limited social skills, job interviews reveal little about the person. So, she helped create a hiring program that relies on team building exercises and a vetting process that lasts weeks.

Christopher was hired soon after going through that process. He was not self-concious while performing a set of tasks, rather than the traditional interview. Christopher’s manager was soon impressed with his ability to think outside the box. That is no small skill in the software world.

In April, 2017, 50 large corporations came together to determine how to bring more persons with autism into the work force. The meeting was hosted at SAP in Silicon Valley, California. SAP started its Autism at Work program five years ago and has hired some 128 persons on the spectrum since then. SAP has experienced a 90% retention rate for its employees with autism. One technique that worked for SAP was to assign a onsite mentor for each person on the spectrum. That person has provided the one-on-one coaching persons with autism need. Microsoft also employs mentors for each person on the spectrum.

See CBS news report.

We see more and more service animals. Setvice animals have become a critical tool in dealing with the PTSD suffered by many soldiers. Many public places do not understand the rules regarding service animals. In one recent instance, American Airlines refused to allow a veteran on board with her service dog. Lisa McCombs of Mississippi filed suit in 2016 and just recently settled her case. A veteran of both Iraq and Afghanistan, Ms. McCombs, like most veterans with PTSDS, relies on the service dog to provide trained skills. Those skills include shielding Ms. McCombs from other persons when she is feeling trauma and to moving closer to the veteran when she is feeling stress. Those are not small skills when a person suffers from PTSD.

Ms. MCombs was not allowed to board with her service dog, despite having documentation that her dog, Jake, was a trained animal. The AA clerk upon seeing the dog, said, “Ummmmm are you trying to fly with that?”

Ms. McCombs apparently sued under the Air Carrier Access Act. American Airlines argued that the ACA Act does not allow a private right of action. See Task & Purpose report.

Regulations define a service animal as one that has received specialized training to perform skills it would not otherwise possess. It helps that the service animal display some rig or vest to indicate it is a service animal.

The district judge in Gulfport, Mississippi rejected the Airlines’ motion to dismiss. It also allowed the Plaintiff to amend the complaint to add other veterans who were also denied boarding by American Airlines with their service animals. See Miami Herald report. One of the other female veterans had a full blown panic attack after some American Airlines employees surrounded her and asked her why she needed a dog since she was not blind.

The requirements of the ADA are not well known,. But, in each the instances mentioned in the lawsuit, the veteran called ahead and had his/her papers with them. They did their part to educate AA employees. The Airline needs to do its part. On a personal level, if that happened while I was about, I would find it very difficult to not get in someone’s face.

There are a few law firms that specialize in representing employers in employment cases. A very few of those firms operate nationally. One such law firm is Ogletree, Deakins, Nash, Smoak and Stewart, PC. Ogletree Deakins represents employers everyday regarding employment matters. They have offices across the country. Yet, that firm is the defendant in a $300 million claiming the law firm discriminates against female partners in regard to pay. Shareholder Dawn Knepper, once a resident of San Antonio, accused the law firm of substantial pay disparities when she moved to California and found herself paid considerably less than her male counterparts.

According to the lawsuit, the firm does not give female partners credit for the business they bring in, does not give them the same opportunities to develop, and does not select women to represent the firm at business meetings as much as the firm chooses male partners. The lawsuit notes that pay is based on a vote of the equity shareholders, 80% of whom are male. The suit seeks $100 million in lost pay, $100 million in compensatory damages and $100 million in punitive damages. See ABA Bar Journal report.

A separate suit seeks a declaratory judgment that Ms. Knepper is not limited by an arbitration agreement she signed with the law firm. Ahhh yes, those pesky arbitration agreements.

Many federal judges avoid employment cases partly because they involve so much detail. But, it is in those details that a circumstantial case is won or lost. And, most employment cases depend on circumstantial evidence. in Robinson v. Jackson State, No. 16-60760 (5th Cir. 12/4/2017) (unpublished), the Fifth Circuit dived into those details and provided some helpful lessons. The lower court granted a motion JNOV (not withstanding the verdict) after the close of jury trial. That means the judge overturned the jury verdict.

Fredrick Robinson noticed a supervisor, Dr. Fuller, eyeing a secretary in a provocative way. Dr. Fuller, the new athletic director, fired the secretary. The athletic director then fired Mr. Robinson and another employee about  month after they were both interviewed by the EEOC. Robinson and the other employee were the only employees to corroborate the secretary’s allegations.

At trial, Dr. Fuller did not admit to knowing that Robinson had been interviewed by the EEOC. The school attorney who was present for the EEOC interviews denied telling Dr. Fuller about the witnesses and who they were. So, it was a classic case. The official who terminated Mr. Robinson denied she knew Mr. Robinson assisted with the EEOC investigation. If the supervisor does not know you assisted the EEOC, then that supervisor cannot be guilty of reprisal because you assisted the EEOC. So, Mr. Robinson’s case hinged on what Dr. Fuller knew and when she knew it.  The jury found in favor of Plaintiff Robinson and awarded $7,100 in lost pay, $25,000 in compensatory damages, and $75,000 in punitive damages.

The district judge then granted JNOV on that issue, finding there was no evidence that Dr. Fuller knew about the participation in the EEOC process before she decided to fire the two employees.

On appeal, the Fifth Circuit noted the timing. Robinson and the other witness were both fired one month after testifying to the EEOC. Jackson State attorneys knew about Robinson and the other worker. And, the purported reasons for firing Robinson were weak. Mr. Robinson was a trainer. The department was already below the require number of trainers when she fired Mr. Robinson. Dr. Fuller’s explanation shifted over time. And, Dr. Fuller did not comply with procedures for terminating an employee.

In reviewing the matter, the higher court noted that the McDonnell-Douglas burden shifting paradigms did not apply, once the jury heard the case. The court noted that in a relation case, it is important to show the decision maker had knowledge of the opposition to discrimination conduct. If Dr. Fuller truly did not know Mr. Robinson had spoken its the EEOC, then her action is firing the trainer could not have been retaliation. The plaintiff argued that the court should accept a “general; corporate knowledge” test as used in the Second Circuit. The Fifth Circuit, however, declined, noting that the circuit had always required “actual” knowledge by the decision maker. The court noted that the plaintiff provided some evidence of the Dr. Fuller’s knowledge. He attitude toward the trainer changed dramatically after he spoke with the EEOC. Prior to the EEOC interviews, the president of the university has explicitly threatened anyone who opposed Dr. Fuller with termination. The school’s two lawyers were aware of the interviews. Dr. Fuller met with both attorneys prior to her own interview with the EEOC and she continued to meet with them afterward. It wasps aid the court, not unreasonable for the jury to infer that Dr. Fuller knew about Robinson’s testimony.

The court noted rightly that it relied on Robinson’s testimony that Dr. Fuller started avoiding him after the interview with the EEOC. But, his testimony that he believed she was aware of his interview solely because of that change toward him was speculation. That is, his observation of her behavior was admissible. But, his conclusions about that behavior was not admissible.

The parties disputed whether the attorney’s knowledge should be imputed to the school. The court would not go there. But, it did note  in a footnote that there was sufficient evidence to infer knowledge on the art of Dr. Fuller from the school’s attorneys.

The court makes an important point that a change in attitude is relevant. But, for the plaintiff to infer the motive for that change is speculation on his part. When the jury makes the inference, that is traditional fact-finding. It is a shame this decision is not published, because that is an important point, rarely made. See the decision here.