CASE NAME COURT AND CASE NUMBER
DATE FILED STATUTES BASIS/ISSUE/RESULT COMMENTARY
Adams v. Festival Fun Parks
U.S. Court of Appeals 2d Circuit No. 13-1183
8/21/2013 ADA, Title VII Disability and Sexual Harassment
Constructive Discharge Pending
Background: Plaintiff claims he was constructively discharged after co-workers repeatedly harassed him on the basis of his learning disability and made sexually crude comments to him.
Additionally, plaintiff claims that the employer paid him less than his peers due to his alleged disability. The district court granted summary judgment for the defendant, holding that plaintiff was not disabled under the ADA, the alleged harassment was not sufficiently severe or pervasive, and plaintiff was not constructively discharged.
Issue EEOC is Addressing as Amicus: (1) Whether plaintiff’s learning disability qualified as a disability under the ADA; (2) Whether the alleged harassment was severe or pervasive; (3) If the employer knew or should have known about the harassment;
and (4) Whether there was sufficient evidence for a jury to find the employer had constructively discharged the plaintiff.
EEOC’s Amicus Brief: First, the Commission argued the district court made an error of law when it relied on case law defining a “disability” under the pre-2008 amendments to the ADA. The Commission also argued that plaintiff had a record of disability with his special education records and that the employer treated him as disabled when it paid him less than his co-workers. Second, the Commission contended that plaintiff’s claims that co-workers would throw objects at him, call him stupid, ridicule his work product, and joke about his sexuality was sufficient evidence of severe or pervasive harassment. Third, the Commission argued the employer either knew or should have known about this harassment and negligently failed to respond since plaintiff alleged that he complained to his supervisor and human resources, and the employer had no clear process for reporting harassment. Fourth, the Commission argued that plaintiff’s allegations of harassment, ridicule, and unequal pay was sufficient for a reasonable jury to find he was constructively discharged.
Court’s Decision: The court has not yet scheduled oral arguments.
1 The information included in Appendix B, including the “FY 2013 Appellate Cases Where the EEOC Filed an Amicus Brief” and “FY 2013—Appellate Cases Where the EEOC Filed as the Appellant” were pulled from the eeoC’s publicly available database of appellate activity available at http://www1.eeoc.gov/eeoc/
litigation/briefs.cfm. Appendix B includes select cases from this database.
CASE NAME COURT AND CASE NUMBER
DATE FILED STATUTES BASIS/ISSUE/RESULT COMMENTARY
Neviaser v. Mazel Tec, Inc.
U.S. Court of Appeals 2d Circuit No. 12-3948
1/15/2013 FLSA Retaliation
Pro Employer—Appeal withdrawn
Background: The district court held that the plaintiff’s internal complaints cannot constitute protected activity under the Fair Labor Standards Act (FLSA).
Issue EEOC is Addressing as Amicus: (1) Whether an employee’s internal complaints constitute protected activity under the FLSA.
EEOC’s Amicus Brief: The EEOC argued that the district court erred in granting the defendant summary judgment holding that internal complaints regarding an employer’s wage practices are not protected under the FLSA’s anti-retaliation provisions.
Specifically, the Commission argued that the United States Supreme Court’s decision in Katsen v. Saint-Gobian Plastics, 131 S.C. 1325 (2011), which held that oral complaints are sufficient to fall under the FLSA’s anti-retaliation provision, indicates that internal complaints are protected activity. Although the Commission recognized that Katsen did not specifically discuss internal complaints, the Commission stressed that a majority of courts have held that internal complaints are protected activity under the FLSA in light of the Katsen reasoning.
Court’s Decision: On March 25, 2013 the parties stipulated a withdrawal of the appeal.
Ellis v. Ethicon, Inc.
U.S. Court of Appeals 3d Circuit Nos. 10-1919 &
12-1361 2013 U.S. App.
LEXIS 14014 (3d Cir. July 9, 2013)
12/21/12 ADA Reinstatement
Pro EEOC
Background: After a jury found the defendant liable for violating the ADA, the district court ordered the plaintiff reinstated, despite the defendant’s position that reinstatement was inappropriate given the plaintiff’s failure to mitigate her damages.
Issues on Appeal: Whether the district court erred in refusing to consider the plaintiff’s failure to mitigate damages when it ordered defendant to reinstate her to her position.
EEOC’s Amicus Brief: The EEOC argued the district court’s order for reinstatement should be affirmed. The Commission argued that a plaintiff’s failure to mitigate damages in no way interferes with the court’s statutory authority under the ADA to award reinstatement. Specifically, the Commission contended that reinstatement should be assessed on a case-by-case basis and while a failure to mitigate may limit a plaintiff’s monetary rewards it does not, in itself, preclude a plaintiff the right to reinstatement.
Court’s Decision: On August 1, 2013 the U.S. Court of Appeals for the 3d Circuit affirmed the district court’s reinstatement order without discussion.
CASE NAME COURT AND
Background: District court dismissed the plaintiff’s ADEA claim for failing to plead sufficient facts showing that he had exhausted his administrative remedies. Additionally, the district court held that the plaintiff’s amended complaint was also insufficient because it failed to demonstrate he filed his claim within 300 days of the alleged discrimination.
Issue EEOC is Addressing as Amicus: (1) Whether the district court erred in holding plaintiff’s complaint failed to sufficiently allege he exhausted his administrative remedies; and (2) Whether the district court erred in dismissing plaintiff’s complaint for failing to show he timely filed a charge when he submitted his timely-filed intake questionnaire.
EEOC’s Amicus Brief: The EEOC argued that the district court erred in holding the plaintiff needed to plead the actual dates of his administrative charge in order to satisfy the pleading requirements under Iqbal2 and Twonbly.3 The Commission also contended that the district court erred in holding that the plaintiff needed to plead the specific date he received his right-to-sue notice, verifying that he filed suit within 90 days. Specifically, the Commission argued that the plaintiff’s pleadings of conditions precedent are allowed to be pled generally. Additionally, the Commission argued that the district court erred when it did not consider the plaintiff’s intake questionnaire form attached to his Amended Complaint, which constituted a charge and was timely filed.
Court’s Decision: The court has not yet scheduled oral arguments.
4/26/13 Title VII Race Discrimination/
After Acquired Evidence Pending
Background: The district court granted the defendant’s motion for summary judgment on the grounds that the plaintiff failed to establish a prima facie case of racial discrimination. The district court also allowed after-acquired evidence of misconduct in refuting the plaintiff’s prima facie case.
Issue EEOC is Addressing as Amicus: (1) Whether the district court erred in holding the plaintiff had to prove she was
“qualified” to establish her prima facie case; and (2) Whether the district court erred in relying on evidence of the plaintiff’s alleged dishonesty in assessing her prima facie case.
EEOC’s Amicus Brief: The EEOC argued that the district court erred in granting the defendant summary judgment because the McDonnell Douglas framework did not require plaintiff to prove she was “qualified” for her position in order to establish a prima facie case. Specifically, the Commission argued the district court erred when requiring the plaintiff at the prima facie stage to prove she was qualified as an assistant manager, stressing Title VII affords protections against race discrimination for all employees and applicants, not merely those who are “qualified” for a particular position. The Commission also argued that the district court relied on the after-acquired-evidence doctrine, which should apply only to assessing back pay awards, when deciding whether the plaintiff was qualified for the position.
Court’s Decision: Oral argument was held on December 4, 2013.
2 Ashcroft v. Iqbal, 556 U.s. 662 (2009).
3 Bell Atlantic Corp. v. Twombly, 550 U.s. 544 (2007).
CASE NAME COURT AND CASE NUMBER
DATE FILED STATUTES BASIS/ISSUE/RESULT COMMENTARY
Bailey v. Real Time Staffing Services, Inc.
U.S. Court of Appeals 6th Circuit No. 13-5221 2013 U.S. App.
LEXIS 22294; 2013 FED App. 0927N (6th Cir. Oct. 29, 2013)
2/20/2013 ADA Disability
Pro Employer
Background: The employee was an HIV positive male who took medication which may have caused a false positive workplace drug test. The district court granted summary judgment in favor of the employer because it did not know the employee was HIV positive.
Issue EEOC is Addressing as Amicus: whether the termination of the employee was in violation of the ADAAA when the employee was HIV positive and took medications which could create false positives on a workplace drug test.
EEOC’s Amicus Brief: The EEOC argued that discriminating against an employee for the consequences, manifestations, or symptoms of a disability known to be caused by a disability is discrimination under the ADA. The EEOC argued that the ADAAA’s new definition of “regarded as” coverage now proscribes discrimination because of an impairment (including any physiological disorder or condition) is also prohibited. The EEOC’s position was that, because the false positive was caused by a medication for HIV, a reasonable jury could conclude that the employer violated the ADAAA.
Court’s Decision: In an unpublished opinion, the 6th Circuit affirmed the district court’s decision.
I. A
CASE NAME COURT AND CASE NUMBER
DATE FILED STATUTES BASIS/ISSUE/RESULT COMMENTARY
Bates, et al v.
Dura Automotive Systems, Inc.
U.S Court of Appeals 6th Circuit No. 11-6088
9/29/2011 ADA Disability
Pending
Background: The employer in this matter initially required employees to undergo testing for illegal drug use upon their initial hiring and after their involvement in a workplace accident that resulted in an injury. Following a series of drug-related incidents, the employer adopted a new substance abuse policy, and tested all of its employees. If an employee tested positive on an initial test, the employee was placed on a 30 day leave of absence and not allowed to return unless the employee passed a retest.
Employees involved in the suit all tested positive due to the lawful use of prescription medication and were not allowed to return to their positions. At trial, the district court determined, as a matter of law, that the employer’s testing regime was a medical examination, and the jury had to determine whether it was job-related and consistent with business necessity. The court rejected the employer’s renewed motions for judgment as a matter of law and for a new trial, and the employer’s contention that because the employees were not individuals with disabilities, they could not recover under the ADA.
Issue EEOC is Addressing as Amicus: Whether the district court correctly concluded that the employer’s testing was a medical exam under the ADA and that plaintiffs were protected by the ADA’s medical examination/inquiries provisions, whether or not they are disabled.
EEOC’s Amicus Brief: The EEOC argued that for purposes of the ADA, a disability-related medical examination is a procedure or test that seeks information about an individual’s physical or mental impairments or health and, though Congress excluded testing for illegal drug use from the definition of medical exams, this exception was intentionally made small. The EEOC argued that the district court correctly determined that the employer’s testing was a medical exam, in part because it was intended to uncover employees’ lawful use of prescription drugs. The EEOC also argued that the ADA allows non-disabled individuals to recover for violations of the ADA’s medical examination limitation.
The EEOC noted that the protection from improper medical exams is not limited to qualified individuals with disabilities. Moreover, the EEOC argued that the ADA’s remedial provision states that the remedies are available to “any person,” not qualified individuals with disabilities.
Court’s Decision: Oral argument was held on March 7, 2013, but no decision has been issued to date.
CASE NAME COURT AND CASE NUMBER
DATE FILED STATUTES BASIS/ISSUE/RESULT COMMENTARY
Latowski v.
Northwoods Nursing Center
U.S. Court of Appeals 6th Circuit No. 12-2408 2013 U.S. App.
LEXIS 25738 (6th Cir. Dec. 23, 2013)
10/25/2012 Title VII, Pregnancy Discrimination Act
Sex, Pregnancy Pro EEOC—summary judgment with respect to pregnancy discrimination claim reversed
Pro Employer—
summary judgment with respect to ADA and FMLA interference claims affirmed
Background: The employee filed a lawsuit alleging that the employer’s policy of requiring employees who had a non-work related condition, including pregnancy, to receive a full release from a doctor before returning to work was discrimination on the basis of pregnancy in violation of Title VII. On September 27, 2012, the district court granted the employer’s motion for summary judgment holding, in part, that the policy in question was pregnancy blind and was not direct evidence of discrimination.
Issue EEOC is Addressing as Amicus: (1) Whether a reasonable juror could find the employer’s policy of requiring pregnant certified nurses’ aides to obtain a doctor’s clearance to work without restrictions in order to avoid termination constitutes discrimination on the basis of sex and pregnancy; and (2) Whether a reasonable juror could find that the employer’s assertion for a
“no restrictions policy” for certified nursing assistants (CNAs) to work was a pretext for pregnancy discrimination in violation of Title VII.
EEOC’s Amicus Brief: The EEOC argued that the employer’s unwritten policy in question is not “pregnancy blind” and, in fact, singles out pregnant women by requiring them to obtain a note stating that they could work free from restrictions in order to continue their jobs. The EEOC further argued that a reasonable juror could determine it was discriminatory because it was applied to pregnant employees but not to other employees, unless they had a medical condition that required a leave or an accommodation. As applied, the policy led to the termination of each and every employee who did not receive this clearance. The EEOC further argued that the “no restrictions” policy was pretext for discrimination.
Court’s Decision: In an unpublished decision issued on December 23, 2013, the 6th Circuit reversed the district court’s grant of summary judgment in the employer’s favor with respect to the pregnancy discrimination claims. The court affirmed the lower court’s grant of summary judgment in the employer’s favor as to the employee’s ADA and FMLA interference claims.
CASE NAME COURT AND CASE NUMBER
DATE FILED STATUTES BASIS/ISSUE/RESULT COMMENTARY
McKinley v.
Skyline Chili, Inc.
U.S. Court of Appeals 6th Circuit No. 12-4064 2013 U.S. App.
LEXIS 17641; 2013 FED App. 0776N (6th Cir. Aug. 21, 2013)
9/6/2012 Title VII and ADEA
Sex, Age Pro Employer—
Affirmed Grant of Summary Judgment
Background: The employee in this matter was provided with negative performance reviews. The employee complained that she was being discriminated against and treated differently.
The employee was eventually fired for “ongoing performance problems.” The district court granted summary judgment and held that the employee’s complaint was too vague to constitute protected opposition to employer conduct and concluded that the employer showed that there was not a genuine dispute whether the employee was terminated for engaging in protected activity.
Issue EEOC is Addressing as Amicus: (1) Whether the district court erred in holding the employee did not engage in protected activity; (2) Whether the district court erred in not submitting the employee’s retaliation claim to the jury; and (3) Whether the district court erred in holding the employee did not create a triable issue of pretext.
EEOC’s Amicus Brief: The EEOC argued that the 6th Circuit should reverse the district court’s grant of summary judgment because the employee’s complaint was sufficiently specific to fall within Title VII and the ADEA’s anti-retaliation provisions and that the district court erred in determining that the employee did not present a triable issue of pretext. With respect to the issue of the employee’s complaint, the EEOC argued that it was sufficiently specific under Title VII and the ADEA because complaints are protected where they identify a discriminatory practice and implicate the protected category on which it is based. With respect to pretext, the EEOC argued that the facts presented sufficient evidence that a reasonable fact-finder could deduce a causal connection between the employee’s complaint and termination.
Court’s Decision: On August 21, 2013, the 6th Circuit affirmed the district court’s decision, holding that the employee did not show a genuine dispute of a material fact (rather, the employee only showed differing opinions regarding her performance and, as a result, she was unable to show pretext).
CASE NAME COURT AND
Background: The employee in this matter was awarded
$400,000 in compensatory damages and $7.5 million in punitive damages (though this was reduced to $300,000 via the statutory cap). The employer appealed and argues, in relevant part, that the district court erred because the employee failed to provide sufficient evidence to establish that the harassment was severe or pervasive.
Issue EEOC is Addressing as Amicus: Whether a plaintiff alleging a hostile work environment under Title VII has to prove that the harassment unreasonably interfered with her work.
EEOC’s Amicus Brief: The EEOC argued that a plaintiff alleging a hostile work environment under Title VII does not have to prove that the harassment unreasonably interfered with the employee’s work performance. Rather, the EEOC argued, the employee need only demonstrate that the harassing conduct has the purpose or effect of unreasonably interfering with the individual’s work performance, or creating an intimidating, hostile or offensive working environment. The EEOC went on to argue that in the past, the 6th Circuit inconsistently, and incorrectly, required an employee to demonstrate unreasonable interference. As a result, though the court may not have been required to address this issue in this matter, the EEOC urged the court to clarify its law on this point.
Court’s Decision: On August 9, 2013, the court filed its final opinion and affirmed the judgment of the district court on all grounds. In doing so, the court noted that whether the conduct is sufficiently severe or pervasive to establish a hostile work environment requires a court to look at all of the circumstances, including whether it unreasonably interferes with an employee’s work performance.
Background: The district court granted summary judgment for the defendant after finding that no reasonable jury could find evidence of sex discrimination and alternatively, that the plaintiff resigned and was not subject to an adverse employment action.
Issue EEOC is Addressing as Amicus: (1) Whether the district court erred in finding no direct evidence of sex discrimination and (2) Whether the district court erred in finding no evidence of constructive discharge.
EEOC’s Amicus Brief: The EEOC argued that the district court erred in granting the defendant summary judgment because a reasonable jury could find in the employee’s favor. Specifically, the Commission argued allegations that the plaintiff’s supervisor stated “I think it’s best that you just go home to be with your babies” shortly before the plaintiff’s resignation is direct evidence of sexual discrimination. The Commission also argued that there were sufficient allegations that defendant intentionally shortened the plaintiff’s maternity leave and did not afford access to a lactation room. Moreover, the Commission contended that these allegations were sufficient evidence of constructive discharge to survive summary judgment.
Court’s Decision: Oral arguments were held on November 19, 2013.
CASE NAME COURT AND
Background: The employee filed a lawsuit against his employer alleging various wage and hour violations, as well as retaliation
Background: The employee filed a lawsuit against his employer alleging various wage and hour violations, as well as retaliation