Procedure, Evidence & Jurisdiction in EEOC Lawsuits

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1 ALI-ABA Course of Study Evidence Issues and Jury Instructions in Employment Cases Cosponsored by Georgetown CLE February 9-10, 2006 Washington, D.C. Procedure, Evidence & Jurisdiction in EEOC Lawsuits By Michael Delikat Orrick, Herrington & Sutcliffe LLP Chicago, Illinois

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3 I. INTRODUCTION The purpose of this Update is to provide a roadmap to some of the legal theories and evidentiary issues most common to employment discrimination litigation. In most cases, these theories are complex and mightily debated among the circuits with new interpretations and iterations peppering the employment litigation arena on a regular basis. The survey establishes, if anything, the thorny problem of quantifying and calculating the evidentiary value to assign certain patterns of human behavior in the workplace where ultimately one or more individuals perceives themselves as the subject of unfair treatment and turns to the court for resolution. The first area will discuss when an adverse employment action has taken place sufficient for an employee to proceed with any claim at all. Logically, the occurrence of an adverse action is a threshold requirement for most any employment discrimination lawsuit. The elements constituting an adverse action, though, are not entirely intuitive. The second area of exploration is when and how statistical evidence may be used to support a plaintiff s theory of discrimination based upon either a disparate impact or disparate treatment theory. This is an area subject to debate, constant evolution and heightened evaluation in the wrongful termination and equal employment opportunity context. The third section explains the Continuing Violations theory of recovery, which essentially acts as an exception to the applicable statute of limitations and allows a plaintiff to link time-barred actions to timely conduct to support an inference of discrimination, harassment or other wrongful treatment in the workplace. The fourth section discusses the mixed motive theory where, absent other defenses, a plaintiff can prove that his or her protected status was a motivating factor for an adverse employment action, thereby exposing a defendant employer to liability for unlawful discrimination, even though other lawful factors may have played a role in the employment decision at issue. A fifth subject common to employment discrimination lawsuits is the after-acquired evidence doctrine, which serves as a limited opportunity for an employer to show that evidence of an employee s misconduct that is discovered after an employee has been discharged, would have independently led to the employee s termination in any event. The Same Actor Doctrine occupies a sixth area warranting discussion. Under this theory, an employer typically advances the defense that, where the same decision-maker both hired and fired an employee in a relatively short period of time, the termination could not have been based upon a proscribed factor because any bias held by the decision-maker would have been revealed in the hiring stage. The weight of this inference varies depending on the particular factual scenario at issue. Finally, an examination of the Stray Remarks doctrine binds together and complicates the several other theories discussed in this paper. This subject carefully navigates the evidentiary value placed upon stray discriminatory remarks made in the workplace suggesting that the employer may have considered improper factors in terminating an employee. C

4 Needless to say, this distillation of case law and theory does not exhaust the many evidentiary issues and theories available and debatable in the employment litigation context. Most of the theories discussed in this paper are treated with varying levels of deference and continue to evolve with the human machinery of the modern workplace. In the final analysis, the application of these seven common employment discrimination theories are guided by the factors enumerated in this paper in addition to the fact-sensitive and largely discretionary determination of the particular court. II. ADVERSE ACTIONS Plaintiffs must establish that they were subject to an adverse action to make out a prima facie claim under parts of Title VII. Every court has held that certain actions are clearly adverse, such as when an employee is fired, demoted, or subject to a loss in wages or benefits. Beyond these actions, courts have split on the definition, and most tend to reject bright-line rules in favor of a case-by-case evaluation of the circumstances. This approach has led to inconsistent decisions and tension even within circuits. The Supreme Court attempted to provide some guidance on the definition of an adverse action. In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) the Supreme Court considered a case of an employer s vicarious liability, to which it applied the standards of tangible adverse employment actions. The Court did not endorse a particular circuit s definition of a tangible employment action, but noted that [a] tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Id. at 761. However, because of the narrow holding of the decision, lower courts have simply refused to integrate it into their established doctrines. See, e.g., Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) (declining to apply Ellerth test to the definition of an adverse action for Title VII retaliation claims); Fierros v. Texas Department of Health, 274 F.3d 187, 193 n.3 (5th Cir. 2001) (expressly declining to decide whether the sexual harassment "tangible employment action" standard lowers the bar on what is an "ultimate employment action" for retaliation purposes.) The circuits have split into a number of factions on the appropriate definition. The most stringent group, including the Fifth, Sixth and Eighth Circuits, has held that only ultimate employment decisions, such as firing and demotion, constitute adverse actions. More liberal circuits have held that materially adverse employment decisions constitute adverse actions. Some courts have embraced an even broader view of adverse actions that includes such factors as a severely adverse work environment. The decisions within each circuit have not been necessarily consistent. See, for example, the discussion at Wideman v. Wal- Mart Stores, 141 F.3d 1453, 1456 (11th Cir. 1998) (reviewing circuit split), and Ray v. Henderson, 217 F.3d 1234, 1241 (9th Cir. 2000) (same). The following is an overview of some major decisions on this topic, bearing in mind that most circuits do not have particularly defined standards. A. Strict Definition: Ultimate Employment Decisions. A minority of courts have held that only ultimate employment decisions constitute adverse actions. Ultimate employment decisions generally include hiring and firing decisions, promotions, and changes in wage or benefit levels. These courts have tended to reject plaintiffs claims involving DOCSSF1:

5 uncomfortable or hostile work environments, and lateral job transfers with no change in wages or benefits. In Burger v. Central Apartment Management, Inc., 168 F.3d 875 (5th Cir. 1999) (per curiam), the Fifth Circuit affirmed its adherence to the ultimate employment decision standard. The court noted that Title VII was only designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions. Id. At 875. Therefore, the court held that purely lateral transfers with same job title, benefits, duties, and responsibilities were not adverse actions. It also concluded that plaintiff s desire for a shorter commute time was not relevant to the analysis. See, also, Banks v. East Baton Rouge Paris School Board, 320 F.3d 570, (5th Cir. 2003) (reaffirming the stricter ultimate employment decisions and holding that implementation of stricter requirements for promotion did not constitute an adverse employment action); Soledad v. United States Department of Treasury, 304 F.3d 500, 507 (5th Cir. 2002) (affirming lower court decision that lateral transfer with no change in pay is not the type of ultimate employment action necessary for an adverse employment action in a retaliation claim. ); Pegram v. Honeywell, 361 F.3d 272, 283 (5th Cir. 2004)(affirming lower court decision that less prestigious or desirable transfer, without more, would not lift [claim] over the hurdle of summary judgment for the purpose of an adverse employment action. ). The court s narrow definition in Burger may be limited to retaliation claims, rather than all discrimination claims arising under Title VII. Although ostensibly the Eighth Circuit has adopted the ultimate decision standard, the appellate court s holding in Moisant v. Air Midwest, Inc., 291 F.3d 1028 (8th Cir. 2002) demonstrates that in practice it applies a broader standard. For example, the appellate court defined adverse actions as including ultimate employment decisions such as termination, demotion, and reassignment or tangible changes in duties or working conditions that constitute a material employment disadvantage or a material change in the terms and conditions of employment. Nevertheless, the court concluded that plaintiff s suspension with pay was not an adverse employment action because there was no change in her position. The court also held that poor treatment by the employee s co-workers could not be characterized as an adverse action. The Eight Circuit s approach also recognizes that actions that disadvantage or interfere with an employee's ability to do his or her job, as well as papering an employee's file with negative reports or reprimands may sometimes be sufficiently adverse, but only those disciplinary measures that detrimentally alter the terms and conditions of the recipient s employment will rise to this level. Tademe v. St. Cloud State Univ., 328 F.3d 982 (8th Cir. 2003) (quoting Cross v. Cleaver, 142 F.3d 1059, 1073 (8th Cir. 1998)); see also Singletary v. Missouri Dept. of Corrections, 423 F.3d 886, 892 (8th Cir. 2005) (plaintiff did not suffer adverse employment action by being placed on administrative leave during which he "maintained his pay, grade, and benefits. In addition, once the investigation concluded, [plaintiff] was promptly returned to his original position"). B. Materially Adverse Employment Actions. Other circuits have been less strict in defining adverse actions. Many courts have defined adverse actions as those actions that materially change the terms, conditions, or privileges of employment. Generally, these courts have held that job transfers that objectively change the DOCSSF1:

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