First Circuit
Vilamarie Caraballo-Caraballo v. Correctional Administration, 892 F.3d 53 (1st Cir. 2018).
Plaintiff, a female Correctional Officer, was assigned to a personnel unit that handled the Corrections Department’s radio communications equipment, the Radio Communications Area. Plaintiff was assigned to this unit in 2003. In this capacity, Plaintiff was tasked with the following: inspecting and replacing radio equipment at Department facilities, ensuring that the Department complied with FCC guidelines, logging inventory, transporting radio equipment, drafting various documents, teaching cadets to use radio equipment, and making minor repairs. In 2009 a male employee was assigned to the same personnel unit. Two months later, Plaintiff was transferred out of the radio unit and into the inmate purchases department, the commissary. Despite plaintiff’s request, she was not provided with a reason for this transfer. Soon after, a second male employee was also assigned to the Department. Shortly thereafter, the first newly-assigned male employee was transferred out of the radio department due to disagreements with his supervisor. The supervisor requested that plaintiff be returned to the department, but this request was denied. Once again, another male employee was assigned to the position.
Subsequently, plaintiff filed a charge of discrimination and eventually a gender discrimination suit pursuant to Title VII of the Civil Rights Act of 1964, alleging that her transfer was due to gender discrimination. In her complaint, Plaintiff asserted claims for gender discrimination, retaliation, and a hostile work environment. The US District Court granted summary judgment on each claim.
After review, the First Circuit Court of Appeals held that plaintiff had sufficiently alleged that she was similarly qualified to male employees who replaced her and, thus, established prima facie case of disparate treatment under Title VII. In addition, the court also held that the transfer was an adverse employment action because it left plaintiff with significantly different responsibilities, and plaintiff’s previously acquired experience and knowledge in field of radio communications were rendered useless by her transfer to commissary, a job that consisted of handling inmate purchases
Dimanche v. Mass. Bay Transp. Auth., 893 F.3d 1 (1st Cir. 2018).
Plaintiff, an African-American female, and a former Massachusetts Bay Transportation Authority employee, filed suit against her employer alleging that her supervisors conspired to terminate her employment because of her race in violation of 42 U.S.C. § 1981 and Massachusetts state law. At the conclusion of the trial, the jury awarded her $1.3 million in compensatory damages on her discrimination claim and $1.3 million in punitive damages.
The employer made three arguments at appeal. First, it argued that the evidence produced at trial was insufficient to support either the compensatory or the punitive damages award. Second, it argued that the trial judge committed two types of reversible error when it imposed a draconian sanction as the price for removing the entry of default, and when it allowed a hostile work environment theory not explicitly pled in the complaint to go to the jury. Third, the MBTA argued that that it should be able to take advantage of Buntin v. City of Boston, 857 F.3d 69 (1st Cir. 2017), decided while this case was on appeal, to vacate the judgment and to dismiss this action.
The First Circuit Court of Appeals held that the evidence was more than sufficient to support the compensatory damages award and to justify the punitive damages award. Second, the Court held that the employer was not prejudiced by either imposing the default order or by the allowance of the hostile work environment claim. Lastly, the Court held that all arguments related to the Buntin case were raised belatedly and consequently waived.
Submitted by:
Ali Khorsand
Akhorsand@apslaw.com
One Citizens Plaza, 8th Floor, Providence RI 02903
401.274.7200 | Fax 401.751.0604
Adler Pollock & Sheehan P.C.
Fifth Circuit
Davis v. Fort Bend County, 893 F.3d 300 (5th Cir. 2018).
Lois Davis worked as an information technology supervisor for Ford Bend County. After she complained that her Director sexually harassed and assaulted her, Fort Bend’s investigation led to the Director’s eventual resignation. Davis contends that her supervisor was friends with the Director and began to retaliate against her because of the complaint.
Davis informed her supervisor that she could not work one specific Sunday due to a previous religious commitment, but her supervisor did not approve the absence. Davis failed to report to work because she attended the church serve, after which Fort Bend terminated her employment.
Davis filed a charge of discrimination and completed an intake questionnaire in which she alleged sexual harassment and retaliation. She later amended her intake questionnaire to include religious discrimination by adding the word “religion” in the box labeled “Employment Harms or Actions,” but she did not amend her charge. After issuance of the right-to-sue letter, Davis filed suit alleging retaliation and religious discrimination as well as intentional infliction of emotional distress.
On a first appeal after issuance of summary judgment, the Fifth Circuit affirmed the dismissal of the retaliation claim but reversed the dismissal of the religious discrimination claim, holding that a material fact existed as to whether Davis held a bona fide religious belief that she needed to attend Sunday service, and whether Fort Bend would have suffered an undue hardship in accommodating her religious observance. 765 F.3d 480, 479, 489, 491 (5th Cir. 2014). On remand, Fort Bend argued — for the first time – that Davis had failed to exhaust her administrative remedies on the religious discrimination claim. The district court agreed and rejected the waiver argument, holding that administrative exhaustion is a jurisdictional prerequisite in Title VII cases.
On appeal, the Fifth Circuit disagreed with the district court, counseling lower courts to take care to distinguish between jurisdictional requirements that bear on the court’s power to adjudicate a claim and nonjurisdictional requirements. In its ruling, the court noted three lines of cases within the circuit: (1) cases characterizing Title VII’s administrative exhaustion requirement as jurisdictional; (2) cases treating Title VII’s administrative exhaustion requirement as merely a prerequisite to suit; and (3) cases noting the intra-circuit split but avoiding the issue. Invoking the rule of orderliness, the court held that Title VII’s exhaustion requirement is merely a prerequisite to suit. The court cited to Arbaugh v. Y&H Corp., 546 U.S. 500 (2006), which stated: “[W]hen Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” Id. at 151-16 (citations omitted). Because Congress did not make Title VII’s administrative exhaustion requirement jurisdictional, that requirement must be treated as nonjurisdictional in character.
As a nonjurisdictional requirement, the failure to exhaust remedies constitutes an affirmative defense that must be raised in a timely manner. Fort Bend neither raised that defense in its answer nor in its original summary judgment motion. Likewise, Fort Bend did not raise that on the first appeal, its petition for rehearing en banc or its application for certiorari to the Supreme Court. On those facts, the Fifth Circuit held that Fort Bend had waived its exhaustion argument. Accordingly, the court reversed the district court’s summary judgment and remanded for further proceedings.
Gardner v. CLC of Pascagoula, L.L.C.,___F.3d___, 2018 WL 3212309 (5th Cir. June 29, 2018).
Kymberli Gardner worked as a certified nursing assistant (“CNA”) for the Plaza Community Living Facility from 2012 until her termination in 2015. She was an experienced CNA and had worked with mentally disabled patients, including patients who were either physically combative or sexually aggressive. Gardner also had training in defensive and de-escalation tactics for aggressive patients.
While employed at Plaza Community, Gardner worked with an elderly patient who suffered from dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson ’s disease. This patient had a long history of violent and sexual behavior, both toward patients and staff. Gardner claimed that the patient would physically grab her and make repeated sexual comments and requests “every day.” She and other employees documented his behavior by recording it in his medical chart and complaining to supervisors. Gardner’s former supervisor (later Director of Nursing) had received complaints from nurses about the patient’s conduct and had also witnessed him behaving in a sexually inappropriate manner. Although Plaza Community transferred the patient to a new wing, Gardner complained that they did not respond promptly to the complaints. Plaintiff claimed that when she tried to discuss her concerns with her supervisor, the supervisor laughed and the Administrator told her to “put on her big girl panties and get back to work.”
Gardner continued to care for the patient until an incident which ultimately led to her termination. While helping the patient get out of bed, the patient tried to grope her and then tried to touch her left breast while she was bent over. When she tried to move out of the way, he punched her on the side of her breast. Gardner got another CNA to help, and the patient again punched Gardner and he then began to grab the other CNA’s “private area.” Gardner sought help from a nurse (Judy Toche), who was able to get the patient into the wheelchair. Gardner then went to make the bed, and the patient punched her again.
The facts surrounding what happened next were in dispute. The Director of Nursing and Nurse Toche testified that Gardener swung her fist over the patient’s head and her arm brushed the top of his head. The other CNA stated that Gardner raised up her hand as if she was going to hit the patient, but she did not hit him. Gardner said that she did not swing at the patient but made two statements as she left the room: (1) “I am not doing shit else for [the patient] at all”; and (2) “I guess I’m not the right color,” presumably because a white nurse was able to calm the patient down while Gardner is African American. Gardner then requested that she be re-assigned because of the patient’s continued harassment, but her request was denied. Gardner left work, went to an emergency room, and did not return to work for three months. The parties also disputed whether Gardner was suspended during her three month absence or out on workers’ compensation. When she returned to work, Plaza Community fired Gardner for three reasons: (1) insubordination (refusing to care for the patient); (2) violating the patient’s rights (by swearing in front of him and making a racist statement); and (3) attacking the patient (by swinging over his head). Plaza Community did not take any action against the patient for his conduct, but after another altercation later that same day, it moved him to an all-male lockdown unit in Biloxi.
On summary judgment, the district court concluded that a hostile work environment did not exist because “it was not clear . . . that the harassing comments and attempts to grope and hit are beyond what a person in Gardner’s position should expect of patients in a nursing home.” The Fifth Circuit disagreed and reversed the summary judgment. The court noted that Gardner did not need to “make it clear” that she was subject to actionable harassment on summary judgment; she need only establish that a jury could reach that conclusion based on its review of the evidence. The Fifth Circuit observed that multiple years of unwanted sexual grabbing and explicit comments could be deemed severe or pervasive “if the harasser were someone without any mental impairments,” but the complication in this case arose from the fact that the source of the harassment is a patient who suffers from dementia.
Comparing Cain v. Blackwell, 246 F.3d 758, 760–61 (5th Cir. 2001) (repeated propositioning for sex and disparaging names not severe or pervasive), and E.E.O.C. v. Nexion Health at Broadway, Inc., 199 F. App’x 351, 353 (5th Cir. 2006) (repeated racial slurs not severe or pervasive), with Crist v. Focus Homes, Inc., 122 F.3d 1107, 1108 (8th Cir. 1997) (mentally handicapped, teenage resident pushed caregiver against a door, forced her right hand above her head, pulled open her jeans and her blouse, grabbed her left breast, and pushed his weight and erect penis against her stomach”), and Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1242–43 (10th Cir. 2001) (patient knocked victim to the ground, undressed her and digitally penetrated her, bit and choked her, and repeatedly threatened to kill her), the court held that there is no categorical bar to hostile environment claims based on harassment by patients. Id. at *4-*5 (citation omitted). Instead, a court must take into account the “’specific circumstances’” . . . to determine whether a reasonable person would find the work environment hostile or abusive” taking due account of the “unique circumstances involved in caring for mentally diseased elderly patients.” Id. at *4. While an objectively reasonable health care provider would expect inappropriate comments and incidental contact from patients with reduced cognitive abilities, a facility must take steps to protect an employee when there is physical contact that progresses from occasional inappropriate touching or minor slapping to persistent sexual harassment or violence with the risk of significant physical harm. The court concluded that, based on these facts, a jury could find that an objectively reasonable caregiver could consider the frequency and nature of the conduct sufficiently severe or pervasive even given the medical condition of the harasser. Because the facility did not take steps to remedy the harassment, Gardner is entitled to have her Title VII hostile work environment claim proceed to trial.
Huckaba v. Ref-Chem, L.P., 892 F.3d 686 (5th Cir. 2018).
Kimberly Huckaba sued her former employer Ref-Chem, L.P., for sexual harassment, discrimination and retaliation in violation of Title VII. Ref-Chem moved to compel arbitration and submitted an arbitration agreement.
The arbitration agreement stated: “By signing this agreement the parties are giving up any right they may have to sue each other” and that the agreement “may not be changed, except in writing and signed by all parties.” Id. at *1. Although Ref-Chem did not sign the agreement, it submitted an Affidavit stating that Ref-Chem voluntarily agreed to arbitrate any disputes with Huckaba. Huckaba submitted a counter-affidavit stating that it was her “intention that in order to be bound by the agreement to arbitrate, Ref-Chem would also have to sign the agreement and agree in writing to be bound by its terms.”
The district court held that Huckaba’s continued employment constituted acceptable of the arbitration agreement by both Huckaba and Ref-Chem. Looking to state law to determine whether there was a valid agreement to arbitrate, the Fifth Circuit noted that the arbitration agreement at issue here contains: (1) a statement that “[b]y signing this agreement the parties are giving up any right they may have to sue each other;” (2) a clause prohibiting modifications unless they are “in writing and signed by all parties;” and (3) a signature block for the employer, Ref–Chem. The court concluded that this express language clearly indicates an intent to be bound to the arbitration agreement upon signing, and that Ref-Chem did not provide sufficient evidence that it intended to be bound without signing the agreement. Id. at *2 and *3. Accordingly, the court reversed the order compelling arbitration and remanded the case for further proceedings.
Submitted by:
Donna Phillips Currault
Gordon, Arata, Montgomery, Barnett,
McCollam, Duplantis & Eagan, LLC
201 St. Charles Ave. 40th Floor
New Orleans, Louisiana 70170-4000
Direct: (504) 569-1862
Email: dcurrault@gamb.law
Seventh Circuit
Flanagan v. Office of the Chief Judge, 893 F.3d 372 (7th Cir. 2018).
Plaintiff, a probation officer with the Cook County Adult Probation Department, alleged that two coworkers threatened her life because she had previously sued their employer. She brought suit in the Northern District of Illinois for retaliation under Title VII, claiming the threatening statements created a hostile work environment. The district court rejected Plaintiff’s argument and granted summary judgment for Defendants, finding that some of the threatening statements were inadmissible hearsay, and that the admissible statements did not rise to the level of retaliatory conduct. The Seventh Circuit clarified on appeal that the statements made by the department’s Deputy Chief and Human Resources Director were “commands” and therefore admissible. One of them, however, was “too oblique” to be considered severe or pervasive harassment, and the other was insufficient to demonstrate retaliation. The Seventh Circuit affirmed summary judgment in favor of Defendants.
Part-Time Faculty Ass’n at Columbia Coll. Chi. v. Columbia Coll. Chi., 892 F.3d 860 (7th Cir. 2018).
A regional director of the NLRB ruled that “FTST” employees at Columbia College Chicago, who were both full-time staff members and part-time faculty members, were part of the Part-Time Faculty Association (“PFAC”) bargaining unit. After such determination was made, the college granted retroactive seniority to FTST employees in accordance with the PFAC collective bargaining agreement. Since FTST employees had not paid union dues, however, PFAC filed a grievance pursuant to the CBA, seeking to halt the retroactive seniority assignments and make whole any PFAC unit member who lost work as a result. During arbitration, the arbitrator went beyond the question of seniority and addressed bargaining unit representation, finding that contrary to the NLRB director’s decision, FTST employees were not properly represented by PFAC.
The district court vacated the arbitrator’s award because (1) it conflicted with a representational decision of the NLRB, (2) the arbitrator exceeded his authority under the CBA, and (3) it violated public policy. The Seventh Circuit affirmed, reiterating the broad standard in this arena and holding that an arbitration award in direct conflict with a representation decision of the Board is unenforceable.
Johnson v. Advocate Health and Hosps. Corp., 892 F.3d 887 (7th Cir. 2018).
Plaintiffs, African American employees at Advocate Christ Medical Center, filed suit alleging race-based discrimination. The district court granted summary judgment in favor of Advocate. Using the McDonnell Douglas framework, the Seventh Circuit analyzed claims of pay disparity, failure to promote, disparate terminations, discriminatory assignments, and hostile work environment/racially derogatory speech. The Court found insufficient admissible evidence for all non-hostile work environment claims and affirmed the district court accordingly. Regarding the hostile work environment claim, however, the Court found that Plaintiffs’ evidence was enough to survive summary judgment. Because Plaintiffs’ supervisors were employees of Aramark, a third party agency, the Seventh Circuit examined the relationship between Advocate, Aramark, and Plaintiffs to determine employer liability. The Court used a five-factor test and concluded that Advocate was in fact an employer for liability purposes. The Seventh Circuit reversed summary judgment and held that a jury must decide whether Advocate’s response to alleged discrimination by Aramark supervisors was inadequate.
Equal Emp’t Opportunity Comm’n v. CVS Pharmacy, Inc., 892 F.3d 307 (7th Cir. 2018).
The underlying complaint rests on procedural issues; the EEOC issued a Right to Sue Letter, but subsequently filed suit against CVS under Title VII’s section 707(a), believing they could do so without first conciliating. The EEOC’s legal argument relied on subtle textual differences between sections 707(a) and 707(e) of the statute, which was ultimately rejected by the Seventh Circuit, requiring pre-suit conciliation under both. The district court then awarded CVS attorney’s fees, noting the EEOC should have recognized its obligation to conciliate. On appeal, the Seventh Circuit examined whether the EEOC’s arguments were frivolous or unreasonable, thereby meriting the award of attorney’s fees. The Court compared the EEOC’s original arguments to then-existing statutes, regulations, and case law. The EEOC’s arguments were ultimately found to be legitimate, in part, because CVS itself claimed to have spent substantial time defending the suit, which purportedly required “deep understanding” of “novel issues.” Because the EEOC’s legal arguments were reasonable, attorney’s fees were not merited and the district court award was reversed.
Simpkins v. DuPage Hous. Auth., ___F.3d___, 2018 WL 3045280 (7th Cir. June 20, 2018).
Plaintiff sued the DuPage County Housing Authority and DHA Management, Inc., alleging violations of the FLSA and Illinois wage laws. The district court held that Plaintiff, who performed carpentry, maintenance, and handyman work, was an independent contractor rather than an employee of DHA, and summary judgment was granted in favor of Defendants. On appeal, the Seventh Circuit found there to be factual disputes regarding the nature and degree of control exercised, Plaintiff’s investment in the tools and materials required to perform his work, the specialized skill required by the job, and the existence and nature of the parties’ contracts. Summary judgment was therefore reversed.
Goplin v. WeConnect, Inc., 893 F.3d 488 (7th Cir. 2018).
Plaintiff, an employee at WeConnect, brought collective and class actions against his employer. WeConnect filed a motion to dismiss because the plaintiff had previously signed an arbitration agreement. The agreement, however, referred to the company by a different name and Plaintiff therefore claimed WeConnect was not a party to the agreement and could not compel arbitration. The district court agreed, and WeConnect filed a motion for reconsideration, alleging that both company names were the same legal entity.
In question was Plaintiff’s use of evidence from WeConnect’s website, which referenced the two different names when describing the company’s history. After having their motion for reconsideration denied, WeConnect appealed, arguing the district court should not have taken its website into account when determining whether or not they were a party to the arbitration agreement. The Seventh Circuit discussed the use of websites and affirmed the district court’s decision because (1) the lower court would have reached the same conclusion without referencing the website, (2) the district court did not engage in its own internet search, (3) WeConnect did not address the website’s information in its reply brief, and (4) the statements on the website were WeConnect’s own assertions
Sutula-Johnson v. Office Depot, Inc., ___F.3d___, 2018 WL 3098960 (7th Cir. June 25, 2018).
A furniture sales representative sued her former employer, alleging that changes to her compensation structure constituted a breach of contract and violated the Illinois Wage Payment and Collection Act. The district court granted summary judgment in favor of the employer. On appeal, the Seventh Circuit affirmed summary judgment for the breach of contract claim, noting that Plaintiff accepted a new contract when she continued to work for the employer under the new compensation plan. In addressing the state law claim, however, the Seventh Circuit focused on a critical distinction between “bonuses” and “commissions” under the Illinois Wage Act. Without guidance from Illinois case law, the Seventh Circuit made their “best predictions” under the Erie doctrine, finding the incentive payments to be “commissions” under Illinois law. Although the Court conceded that the incentive payments could arguably fit within both definitions, they noted that the payments were mandatory rather than discretionary, paid according to a set formula, based on value of individual sales, and were a significant portion of sales employees’ pay. The Seventh Circuit reversed the district court’s order of summary judgment, declined to grant Plaintiff’s own motion for summary judgment, and remanded for further proceedings.
Jam Productions, Ltd. v. Nat’l Labor Relations Bd., ___F.3d___, 2018 WL 3149767 (7th Cir. June 28, 2018).
Jam Productions entered into a stipulated election agreement with the Theatrical Stage Employees Union to identify a potential bargaining unit for stagehands. After the election, Jam contested the results, alleging that the union unlawfully provided economic benefits to employees during the critical period preceding the election. The NLRB’s regional director conducted an investigation and certified the union as the relevant bargaining unit, and the NLRB upheld the determination without holding a hearing on Jam’s objections.
After Jam refused to recognize or engage in collective bargaining with the union, the Board filed an unfair labor practice complaint. The Seventh Circuit held that Jam presented enough evidence to obtain an evidentiary hearing because the alleged misconduct, if proven, would warrant setting aside the election. Jam submitted appropriate testimony, an offer of proof outlining multiple instances supporting their claim, and its own records from shows it produced at union venues. The Seventh Circuit found that without subpoena power, Jam produced as much evidence as it had available and is therefore entitled to a hearing.
Submitted by:
Julie Monroe
Summer Associate
Littler Mendelson
321 North Clark Street, Suite 1000
Chicago, IL 60654