This Littler Lightbulb highlights some of the more significant employment law developments in the federal courts of appeal in the last month.
- Seventh Circuit Finds EEOC Failed to Prove Racial Harassment in Multi-Employee Case
In EEOC v. Village at Hamilton Pointe LLC, __ F.4th __, 2024 U.S. App. LEXIS 11350 (7th Cir. 2024), the Seventh Circuit upheld summary judgment for the employer in a case brought by the EEOC claiming Black employees at an assisted living facility were subjected to harassment because of their race in violation of Title VII. Citing prior Seventh Circuit precedent the appellate court stated that to prevail on a racial harassment claim "[a] plaintiff must show that the alleged harassment was so severe or pervasive that it altered the conditions of his employment.... The subjective beliefs of an employee are not sufficient alone to meet this standard."
Applying these principles, the Seventh Circuit examined the claims of 15 employees. Among other things, some of the employees complained of an assignment sheet that stated, "No African American Males to Provide Care." Noting that the assignment sheet was taken down three days after it was posted, and that Black employees continued to care for residents of the facility after the assignment sheet was posted, the court found the posting was not sufficiently severe or pervasive to alter the conditions of employment. Similarly, the court found the use of the N-word and racially inappropriate language by residents did not meet the standard required for harassment in violation of Title VII. The court stated: "Although certainly still offensive, the use of a racial slur by a resident in the nursing home context would be considered less offensive to a reasonable person than if the same slur were said by a co-worker or supervisor in that same setting. This observation is particularly true when the recipient is a professional trained to give care in a geriatric setting....This conclusion is especially true when the speaker is or could be perceived to be suffering from a medical condition."
The court also found that most of the employees failed to report the residents' racially offensive language. An employer is not liable for racial harassment, the court held, "'when a mechanism to report the harassment exists, but the victim fails to utilize it,' and the employer was not otherwise 'adequately put on notice of the prohibited harassment.'" In this case the court found that the employee handbook clearly provided procedures for reporting harassment, including avenues outside of the employees' management chain, and there was no evidence that the facility management knew or should have known that residents were using racial slurs. Thus, the Seventh Circuit concluded that "the evidence of record does not support, under established principles of law, a case of racial harassment that was so severe or pervasive as to alter the conditions of employment for any of these claimants."
- First Circuit Rejects Rehabilitation Act Discrimination and Retaliation Claims
Rivera-Velázquez v. Regan, __ F.4th __, 2024 U.S. App. LEXIS 11339 (1st Cir. 2024) involved a claim by an employee of a division of the Environmental Protection Agency (EPA), that his supervisors discriminated and retaliated against him in violation of the Rehabilitation Act and Title VII because they regarded him as having Post-Traumatic Stress Disorder (PTSD) after he returned to work following military service in Afghanistan. After filing several internal complaints and a complaint with the EPA Office of Civil Rights, the plaintiff filed suit in federal court, which granted summary judgment to the defendant on all his claims, and the plaintiff appealed.
On appeal of his Rehabilitation Act discrimination claims, the plaintiff focused on the district court's ruling that he had not met his burden to show that management "regarded him as disabled." In support of his claims, the plaintiff pointed to his supervisor's statement that "she was worried that he had reported back to work so quickly after returning from Afghanistan." In a deposition his supervisor stated that he "'demonstrate[d] that he needed [extra] attention' upon his return from Afghanistan and that she believed 'it was the result of him having come back to his family, to the work area.'" The First Circuit agreed with the district court that these statements were insufficient to show the plaintiff's supervisor regarded him as disabled: "'[A] supervisor's expression of concern for an employee's health or wellbeing does not necessarily mean that the supervisor—and by extension, the employer—regards the employee as having an impairment.'" Having failed to meet this first element of a prima facie case for violation of the Rehabilitation Act, the First Circuit upheld the district court's grant of summary judgment to the employer.
As to plaintiff's claims of retaliation in violation of the Rehabilitation Act and Title VII, the First Circuit found that plaintiff failed to establish adverse employment actions by his supervisors, or that any actions were in retaliation for his complaints of harassment and discrimination. Most notably, the court found that plaintiff's supervisors' request that the EPA's Office of Inspector General (OIG) investigate whether he had intentionally misrepresented his training and credentials was not an adverse employment action, and that there was no basis for inferring causation based on the three-year time lag between the plaintiff's complaints and the referral to the OIG. Affirming summary judgment on this claim, the court quoted a prior First Circuit decision on retaliation: "'Without some corroborating evidence suggestive of causation' even a 'gap of several months cannot alone ground an inference of a causal connection between a complaint and an allegedly retaliatory action.'"
- Seventh Circuit Upholds Summary Judgment for the Employer in Equal Pay Act, Title VII and Illinois Human Rights Act Case
After being dismissed for poor performance, the plaintiff in Rongere v. City of Rockford, __ F.4th __, 2024 U.S. App. LEXIS 10462 (7th Cir. 2024) filed suit in federal court for violation of the Equal Pay Act, Title VII, and the Illinois Human Rights Act, claiming that male colleagues worked fewer hours, did not have to perform the same administrative tasks, and earned more money than she did. The district court granted summary judgment to the employer on all claims and the plaintiff appealed.
Noting that all of plaintiff's claims are evaluated under the same framework, the Seventh Circuit found that the plaintiff failed to identify similarly situated male comparators who were treated better than she was. To prevail on her claims, the court stated, "the plaintiff must show a 'common core of tasks' that makes a significant portion of the jobs 'identical.'" Although plaintiff and the two male employees who she claimed were similarly situated held senior manager titles, the court found that the actual work they each performed was different.
Moreover, the court held, "[w]orking longer hours and performing more administrative tasks than male colleagues with completely different jobs does not, without more, support an objectively reasonable belief that the differential treatment stemmed from sex discrimination."
- Fourth Circuit Applies Ministerial Exception to Grant Summary Judgment to Employer in Title VII Sex Discrimination Suit by Gay Teacher
The Fourth Circuit reversed the district court in Billard v. Charlotte Catholic High Sch., No. 22-1440 (4th Cir. May 8, 2024), granting summary judgment to the employer in a case involving a Title VII suit by a Catholic high school teacher fired for making plans to marry his same-sex partner. Although the school had waived the ministerial exception to Title VII in the district court, the Fourth Circuit stated that "because the ministerial exception 'implicate[s] important institutional interests of the court,' we retain discretion to raise and consider it sua sponte – even if waived." Reviewing the history of the ministerial exception, the court emphasized the importance of the exception to "'bar the government from interfering' with ministerial employment decisions or involving itself in ecclesiastical matters."
Applying the ministerial exception, including Supreme Court decisions involving teachers at religious schools, the Fourth Circuit focused on the plaintiff's job duties. Although he was an English and drama teacher, his duties included "conforming his instruction to Christian thought and providing a classroom environment consistent with Catholicism," as well as acting as a "role model of the Catholic Faith" to his students. Noting that the "ministerial exception remains just that – an exception – and each case must be judged on its own facts to determine whether a 'particular position' falls within the exception's scope," the Fourth Circuit found that the exception applied in this case and granted summary judgment to the school.
- First Circuit Affirms Summary Judgment in WARN Act Decision
Rivera-Pina v. Luxury Hotels Int'l of P.R., No. 22-1377 (1st Cir. May. 3, 2024) involved allegations that a hotel violated the federal WARN Act by failing to give employees sufficient notice when it discharged them after the hotel closed in the wake of Hurricanes Irma and Maria. The employees also claimed the hotel violated Puerto Rico Law 80, asserting that the hotel's closure was without just cause. The district court granted summary judgment to the employer on both claims, and the plaintiffs appealed.
As to the WARN Act claim, the First Circuit cited the district court's finding that "as a matter of law, there had been no showing that the WARN Act had been violated." The appellate court went on to agree with the district court that even if there had been insufficient notice of the hotel closing under the WARN Act, the Act would not have been violated due to a provision in the Act that "[t]he amount for which an employer is liable . . . shall be reduced by any voluntary and unconditional payment by the employer to the employee that is not required by any legal obligation." In this regard, there was no dispute that the hotel had voluntarily and unconditionally paid each of the terminated employees various weekly and lump sum payments. Accordingly, the appellate court stated, the "payments [the hotel] had made to the employees would completely offset [any] monetary liability."
Regarding the employees' Puerto Rico Law 80 claim, the First Circuit agreed with the district court that the hotel's "closing constitutes just cause for [the employees'] discharge." The court rejected the employees' assertion that "the 'general rule' that a termination of employment based on a closing is for 'just cause' does not apply to this case because a reasonable trier of fact could find on this record that [the hotel] closed ... without 'just cause.'" The court held that "the text of Law 80 does not support the proposition that, even when the termination was based on the closing, the closing – rather than the termination of employment – had to be for 'just cause.'" [Emphasis in the original.]
- Eighth Circuit Affirms Summary Judgment for the Employer in Reverse Discrimination Case
After he was terminated from employment, without a reason given, the plaintiff in Meinen v. Bi-State Dev. Agency, __ F.4th __, 2024 U.S. App. LEXIS 11815 (8th Cir. 2024), a white male, sued his employer claiming race and gender discrimination, harassment, and retaliation in violation of Title VII. The district court granted summary judgment to the employer on all claims and the plaintiff appealed.
As to plaintiff's race and gender discrimination claims, the Eighth Circuit found that plaintiff's reliance on an unrelated complaint against another white male that ultimately resulted in an investigation and termination was insufficient to support his claims because there was no evidence that the situation involved similarly situated individuals or conduct.
Plaintiff's sexual harassment and retaliation claims involved allegations that a Black female employee intentionally rubbed her backside against him when she walked by him, and that she told him, "You know you look good without clothes on, (pause) I mean not in uniform." The plaintiff reported the incident to his supervisor, the female employee's supervisor, and Human Resources, who advised him to prepare a written disciplinary warning which he delivered to the female employee. Reviewing the plaintiff's claims, the Eighth Circuit found that although the alleged behavior by a co-worker made the plaintiff uncomfortable, it was not "sufficiently severe or pervasive to alter the conditions of the [plaintiff's] employment and create an abusive working environment." Noting that it was approximately one to two months after complaining of the alleged harassment that plaintiff was terminated from employment, the court stated, "no facts are ever alleged that give rise to an inference of a retaliatory motive beyond temporal proximity. Accepting [plaintiff's] allegations [as] true, he did not plead sufficient facts to give rise to an inference of causation beyond mere speculation."
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