Eighth Circuit Court of Appeals Sides with Employee in Age Discrimination Case

Kathy Baker was terminated from her position as director of an assisted living center operated by Silver Oak Senior Living Management Company, L.C. Ms. Baker sued Silver Oak alleging that she was terminated because of her age and because she opposed age discrimination, in violation of the Age Discrimination in Employment Act and Missouri Human Rights Act. The trial court entered summary judgment in favor of Silver Oak and Ms. Baker appealed. The U.S. Court of Appeals for the Eighth Circuit reversed.

Particularly relevant to the court were numerous statements the employer allegedly made evidencing a preference for younger workers over ADEA protected employees.

We conclude that Baker has presented a submissible case of age discrimination for determination by a jury. Most significant are statements of Lindsey and Thomas, who participated in the decision to terminate Baker, evincing a preference for the employment of younger workers over persons in the class protected by the ADEA. Lindsey's statement to his management team that Silver Oak was "missing the boat by not hiring more younger, vibrant people," and that employees "should start looking over applications better and try to consider hiring younger people" is evidence that a reasonable jury could take to reflect a discriminatory attitude by one who participated in Baker's termination. A jury likewise could find that Thomas's attitude about employment at Silver Oak was biased against older workers, given her directions that Baker should fire certain workers in their 50s and 60s so that Thomas could hire "younger workers" who would be "better workers, have more energy, be more enthusiastic and stimulate the residents."

Other comments by Lindsey and Thomas are open to interpretation, but on a motion for summary judgment, they must be viewed in the context of the foregoing statements. Lindsey's desire to rid the company of "dead wood" could be a legitimate preference to terminate unproductive workers regardless of age, but it could also be a manifestation of a discriminatory attitude against older workers in general. Thomas's criticism of Baker for dressing "like an old lady," and exhortations to "keep up" with younger executives like Lindsey and Upshaw might be given a benign gloss, but they also could be seen reasonably as further evidence of age-based bias. In light of statements by Lindsey and Thomas that clearly reflect a discriminatory attitude against older workers, statements that might otherwise be dismissed as harmless workplace banter assume greater probative value on a motion for summary judgment.

Concluding, the court held that

[T]here is sufficient evidence for a jury to find that Baker engaged in protected activity under the ADEA and the MHRA before she was terminated. By protesting to Thomas that it was wrong to terminate older employees, and that Silver Oak could not discharge employees "just because they are old," Thomas clearly opposed conduct that she reasonably believed to be unlawful age discrimination.

Baker v. Silver Oak Senior Living Mgmt. Co., L.C., No. 08-1036 (W.D. Mo. Oct. 15, 2008).

Plaintiff's Allegation of Asthma Attacks Sufficient to Survive Employer's Motion to Dismiss

Louise Brewer sued her employer, the Missouri Department of Corrections (“DOC”), alleging employment discrimination in violation of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act. Specifically, Ms. Brewer alleged that as the result of her asthma, she was harassed, discriminated and retaliated against in the terms and conditions of her employment. Along with the other documents Ms. Brewer provided to the court when she filed her lawsuit, Ms. Brewer filed a three page single-spaced document describing specific instances in which she believed her rights were violated by the DOC.

The DOC filed a motion to dismiss arguing that Ms. Brewer was not a “qualified individual with a disability” as defined by the ADA or the Rehabilitation Act. In support of its argument, the DOC claimed that because Ms. Brewer mentioned only eight asthma attacks in her lawsuit, the "episodic asthma attacks" could not form the basis of an actual disability. Additionally, the DOC argued that Ms. Brewer’s retaliation claim should be dismissed because she was unable to establish that she suffered an adverse employment action or that the DOC’s conduct actually violated the ADA.

The court denied the DOC’s motion to dismiss noting that to obtain relief under the ADA, a plaintiff must show that she (1) has a “disability” within the meaning of the ADA, (2) is a “qualified individual” under the ADA, and (3) “suffered an adverse employment action as a result of the disability.” The court held that Ms. Brewer was not required to specifically state in her lawsuit each and every instance that her alleged asthma affected her work or the facts surrounding each and every perceived act of harassment or retaliation.

Brewer v. Mo. Dpt. of Corrections, No. 4:08CV1883 (E.D.Mo. June 24, 2009).

Employee Terminated After Disclosing Cancer Diagnosis Survives Employer’s Motion to Dismiss

Wava A. Gunderson was employed by St. Louis Connectcare as a claims adjudicator in January of 2006 when she was diagnosed with cancer. Ms. Gunderson was terminated in July of 2006. In her recently filed lawsuit, Ms. Gunderson claims that when she notified her employer of the diagnosis, she was advised that she should resign. Ms. Gunderson further alleges that she refused to resign because she was able to perform her job with reasonable accommodations.

In response to Ms. Gunderson’s lawsuit, Connectcare filed a motion to dismiss. Connectcare argued that Ms. Gunderson’s claims under the Employee Retirement Security Act (“ERISA”) sections 502 and 510 failed to state claims upon which relief could be granted. The court agreed with Connectcare that Ms. Gunderson failed to state a claim under ERISA section 502 because that section provides remedies only against a defendant who has failed to comply with the terms of a benefits plan. The court recognized that Ms. Gunderson was not claiming in her lawsuit that Connectcare interfered with her ability to become eligible for further benefits, did not specify any particular benefits that were purportedly denied, and dismissed her claim under section 502.

However, the court held that Ms. Gunderson’s allegations that she was a participant under the terms of an employee benefit plan provided by the employer, and that she was fired for exercising her rights under that plan, properly pled all the elements of a claim under ERISA section 510. Although the court allowed Ms. Gunderson’s section 510 claim to proceed, it struck her claim for punitive damages finding that ERISA does not authorize the award of punitive damages.

Gunderson v. St. Louis Connectcare, No. 4:08CV01553 (E.D.Mo. Mar. 26, 2009).

Employer's Anti-Harassment Policies Provide No Protection If Not Properly Implemented

Lori Herndon was a police officer with the City of Manchester’s police department from October 8, 2001, until February 3, 2005. On several occasions between February and June of 2004, Sergeant Epps sexually harassed Ms. Herndon while acting as her relief supervisor. Sergeant Epps’s harassment involved making sexually suggestive comments, grabbing Ms. Herndon and pressing himself against her, and forcing Ms. Herndon to kiss him. Eventually, Ms. Herndon filed an action under the MHRA against the City of Manchester and Sergeant Epps based on Epps's conduct.

Prior to his employment with the City of Manchester, Sergeant Epps had been employed by the Northwoods police department and worked part-time as a security guard at a Schuncks Grocery Store. During that time, a female employee at Schnucks filed a sexual misconduct complaint against Epps with the St. Louis County police department. Although Manchester requested documentation of Epps’s employment, including his disciplinary record, from the Northwoods department when he applied to the Manchester department, the Northwoods department only provided Epps’s dates of employment and identifying information. After Epps became employed by the Manchester department, a citizen’s complaint was made against Epps by a husband who alleged Epps was inappropriately pursing his wife.

At the time Ms. Herndon filed her charge, the City of Manchester had a policy and procedure in place for dealing with allegations of sexual harassment. The policy forbade sexual harassment in the workplace and also contained a policy on how the police department was to deal with complaints lodged against officers by private citizens as well as other officers. With respect to complaints made by officers against fellow officers, the department’s policy provided that

Upon becoming aware of or receiving notification of potential rules violations by an officer under his command, a supervisor shall begin an immediate investigation of such allegations. The investigation must include questioning the officer, witnesses and complainants, and securing all relevant evidence. The supervisor must then forward a report of the alleged violations, all documents and evidence relating to the investigation, and recommendations for further investigation or other disposition of the matter through appropriate channels.

After learning of Epps's harassment, Epps's schedule was changed so that he would have no further contact with Ms. Herndon. After Ms. Herndon filed a formal complaint, the City of Manchester asked the Missouri State Highway Patrol to conduct an investigation of Sergeant Epps’s conduct. The City of Manchester police department also conducted an internal investigation. Upon completion of the investigation, Sergeant Epps was terminated from employment because of his conduct.

The City of Manchester filed a motion for summary judgment on Ms. Herndon’s claims arguing that it met the United States Supreme Court's requirements set forth in the Ellerth and Faragher cases for asserting an affirmative defense to vicarious liability which arises when an employee's supervisor sexually harasses the employee. The affirmative defense requires an employer to prove that (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. The City argued that it demonstrated that it met the Ellerth/Faragher criteria as a matter of law. The trial court agreed and granted the City’s motion for summary judgment.

The Appellate Court reversed and remanded finding that the City of Manchester was unable to establish the “prevention prong” of the defense by merely demonstrating the existence of a facially valid anti-harassment policy. The court was particularly troubled by the fact that Northwoods department had direct knowledge of Sergeant Epps’s misconduct that it could have passed on to Manchester if the Manchester department took additional steps to acquire the information. The court also found that Manchester did not act reasonably to prevent Sergeant Epps’s harassment in light of the citizen couple's prior complaint. The court noted that although the citizen was not a co-worker, Sergeant Epps either harassed her while on the job or used his position as a police officer to gain access to her for the purpose of harassment.

Lori Herndon v. The City of Manchester, No. ED91175 (Mo. Ct. App. 2009)

Plaintiff in Sexual Harassment Case Entitled to $3.75 Million in Punitive Damages

Kendra Lynn worked as an assembly line scanner for TNT at its Kansas City automobile parts warehouse. In August 2003, Michael Gill was hired as a supervisor for Lynn's shift. Beginning in October 2003, Gill made a number of sexually charged and otherwise inappropriate comments to Lynn. For example, when passing out paychecks, Gill told Lynn she was not going to get paid "until you bounce your ass." While passing her workstation, Gill commented on Lynn’s anatomy and made offensive remarks about his own anatomy and his plans for performing sex acts on her. Another supervisor witnessed Gill "dancing provocatively" behind Lynn while she worked at her station, and reported Gill's actions to a superior.

In late October 2003, in front of another supervisor, Gill hit Lynn on the buttocks with a belt and told her to "get your fat ass out of here." The supervisor who witnessed the incident reported it to his immediate superior, who later denied he was given the information.

Lynn complained about Gill's behavior to another shift supervisor. Her complaints were forwarded to the facility manager. When the facility manger failed to take any action, Lynn transferred to another shift to avoid Gill. After she was terminated, Lynn sued TNT alleging sexual harassment and wrongful termination. After a five day trial, the jury returned a verdict for Lynn on her sexual harassment claim and for TNT on her wrongful termination claim.

On appeal, TNT claimed that the jury's verdict should be "reversed outright" because Missouri law and federal anti-discrimination statutes are "not designed to purge the workplace of vulgarity" or "punish for boorish or even vulgar workplace conduct." TNT concluded that Lynn’s sexual harassment claim was of the type that should be "filtered out of the court system."

The Missouri Court of Appeals disagreed and found that Gill’s conduct went beyond the harmless comments or boorish conduct of a supervisor directed at a female employee. The court also noted that TNT seemingly disregarded its own egregious behavior in ignoring Gill’s behavior and doing absolutely nothing to curb or punish Gill’s conduct, even though TNT supervisors and others in TNT’s chain of command knew of the conduct.

With respect to damages, the appellate court affirmed the award of $50,000 in compensatory damages, plus interest, and reversed the trial court’s judgment reducing Lynn’s punitive damage award. Substituting its own award for that of the trial court, the appellate court held that if Lynn would agree to a reduction in the amount of punitive damages from $6.75 million to $3.75 million, the case would be remanded to the trial court for entry of a judgment in that amount, plus interest, on one-half that amount. Otherwise, the court held that the judgment for punitive damages would be reversed for a new trial.

Lynn v. TNT Logistics North America, Inc., Nos. WD 68096, WD 68135 (Mo. Ct. App. 2008)

Missouri Supreme Court Finds in Favor of Employee in Sexual Harassment and Retaliation Case

Shortly after filing a charge of discrimination and receiving a “right to sue letter,” Cynthia Hill was reassigned to another job in Ford’s Hazelwood plant. In her new position, Ms. Hill was supervised by Ken Hune. Mr. Hune frequently asked Ms. Hill for details about her underwear and made sexually suggestive comments to her. Ms. Hill told Mr. Hune she was offended by his comments and asked him to stop.

Eventually, Ms. Hill and another female employee spoke with their group leader about Mr. Hune’s inappropriate behavior and sexually suggestive comments. The group leader took Ms. Hill’s concerns to Mr. Hune’s supervisor, Mr. Woods. Mr. Woods agreed to speak with Mr. Hune about the situation. Shortly thereafter, Ms. Woods and Mr. Hune had an argument that resulted in two union representatives and a labor relations supervisor, Paul Edds, convening a meeting to discuss the situation with Ms. Hill. By the time the meeting was over, Mr. Edds had ordered Ms. Hill not to return to work until she had gotten psychiatric help. Mr. Edds subsequently phoned Ms. Hill at home and suspended her for three days for “disrespecting” Mr. Hune during her argument with him. Mr. Hune was fired following an investigation by Mr. Edds into another female employee’s allegations of sexual harassment against him.

Ms. Hill filed charges of discrimination with the EEOC and MCHR against Ford alleging sexual harassment discrimination resulting in a hostile work environment and retaliation. However, Ms. Hill did not name Mr. Edds as a party to the charges she filed with either agency. Ms. Hill then sued Ford, Mr. Hune, and Mr. Edds. The trial court entered summary judgment in favor of Ford and Mr. Edds. Ms. Hill appealed.

Reversing the trial and appellate courts, the Missouri Supreme Court first noted that “. . . Missouri has adopted a different definition of ‘discrimination’ that in some respects offers greater protection to workers than does federal law.” Citing its earlier decision in Daugherty v. City of Maryland Heights, 231 S.W.3d 814 (Mo. banc 2007), the Supreme Court also reaffirmed that nothing in the Missouri Human Rights Act required a plaintiff to prove that discrimination was a “substantial” or “determining” factor in the employment decision; rather, plaintiff need only show that some protected characteristic contributed to the unfair treatment.

Citing evidence adduced by Ms. Hill, the court concluded that “A reasonable fact-finder could accept Ms. Hill’s evidence and conclude that her referral for psychiatric treatment and her suspension constituted tangible employment actions that were caused or contributed to by the sexual harassment.” Likewise, with respect to her retaliation claim, the court found that “Viewing the evidence in the light most favorable to [Ms. Hill], Ms. Hill has adduced sufficient evidence that her rejection of and opposition to Mr. Hune’s sexual harassment was a contributing factor in her referral for psychiatric treatment and suspension.”

The court also rejected Mr. Edds’ argument that he could not be individually liable under the Missouri Human Rights Act. Citing two 2006 decisions from the Missouri Appellate Court for the Eastern District of Missouri, and the text of the statute itself, the court concluded that “The statute is clear that the MHRA is intended to reach not just the corporate or public employer but any person acting directly in the interest of the employer. A supervisory employee clearly falls into that category.”

Cynthia Hill v. Ford Motor Company, et al., No. SC 88981 (Mo. banc Feb. 24, 2009).

Temporary Employee Can Sue For Retaliatory Discharge

On September 13, 2006, under threat of subpoena, Carrie Hester gave testimony in the workers compensation case of another employee at Gilster Mary-Lee Corp. The next day, September 14, 2006, Gilster informed Ms. Hester that it would no longer be using her services and that if she wanted other employment she would have to return to Manpower, Inc., the employment agency through which Ms. Hester was placed with Gilster.

Ms. Hester sued Gilster for retaliatory discharge, alleging that she had only been assigned to work at Gilster by Manpower and that Gilster was her real employer. Ms. Hester alleged that while she was assigned to work at Gilster, Gilster set her daily hours, her work schedule, her hourly wage, and her job assignments. Ms. Hester also alleged that while she was assigned to work at Gilster, no one from Manpower supervised her work and that she worked “side-by-side” with regular Gilster employees with no distinction between them and herself or other workers provided by Manpower to Gilster.

Gilster filed a motion to dismiss Ms. Hester’s lawsuit which included an affidavit signed by Gilster's Risk Manager who stated that Ms. Hester was never an employee of Gilster, that Gilster did not pay Ms. Hester, that she was not on Gilster's payroll list, that Gilster did not maintain personnel records for her, and that Ms. Hester was not entitled to pension or other employee benefits through Gilster. Additionally, Gilster’s Risk Manager stated that Manpower paid Ms. Hester for the work she had performed at Gilster and that Gilster did not set her hourly rate but had merely paid a flat fee to Manpower for her services. The trial court granted Gilster’s motion to dismiss finding that Ms. Hester was not employed by Gilster and that Gilster therefore could not have discharged her. Ms. Hester appealed.

The appellate court framed the issue as “. . . whether a cause of action for retaliatory discharge extends to a borrowed employee whose employment with the borrowing employer is terminated for testifying in a coworker's workers' compensation claim.” Resolving the issue in Ms. Hester’s favor, the court held that, as a matter of first impression, “. . . a borrowed employee may maintain a cause of action for retaliatory discharge against a borrowing employer based upon an allegation that the employee has been discharged for engaging in activities protected by the Workers' Compensation Act.”

Hester v. Gilster-Mary Lee Corp., No. 5-07-0283 (Ill. App. Ct. Dec. 18, 2008).

Age and Gender Discrimination Case Rejected Due to Plaintiff's Poor Work Performance and Misconduct

The U.S. District Court for the Southern District of Illinois recently held in Lesicko v. Conoco Phillips Pipe Line Co. that the plaintiff was precluded from pursuing her claims of gender and age discrimination against her former employer due to her own misconduct at work and failure to meet the employer’s job performance expectations.

The plaintiff in the case, Julie Lesicko, was one of 18 employees working at Conoco Phillip’s (“CP’s”) East St. Louis terminal. Her employment began in June of 1995 and ended in March of 2007. Although Lesicko’s performance was initially good, she began experiencing problems in early 2001 when her position’s shift structure changed and a new supervisor was hired.

Lesicko received verbal and written warnings for misusing sick time, and in 2002, Lesicko made derogatory remarks about her supervisor in front of other employees and became aggressive and confrontational with co-workers. This behavior apparently continued into 2003 and 2004 and negatively impacted the relationships between employees and customers at CP. In September of 2006, CP received a call to its “AlertLine” by an employee complaining that Lesicko’s conduct was creating a hostile workplace. Specifically, it was reported that Lesicko “threatened her co-workers with lawsuits, screamed and cursed at them, cussed and used the ‘f word’ at co-workers and drivers, was abusive to them, was volatile, created turmoil in the building, threatened to get them fired and created a stressful working environment.”

Following an investigation, Lesicko was issued a one day suspension and given a “Final Warning” letter. However, six months later, trouble arose again when Lesicko threatened to beat up a co-worker. Lesicko’s schedule had her off work for eight days following the incident during which time CP conduced an investigation of the incident. Lesicko refused to participate in the investigation, and ultimately delivered a written resignation when she returned to work.

After receiving her Notice of Right to Sue from the EEOC, Lesicko filed a lawsuit against CP claiming that she had been discriminated against based on her gender and age in violation of Title VII and the ADEA. Specifically, Lesicko claimed CP unfairly denied her vacation requests, denied her training and unfairly disciplined her all of which created a hostile working environment and ultimately resulted in her constructive discharge. Lesicko also claimed that she had been harassed with sexually suggestive comments which were made toward or in front of her and by sexually oriented materials she claimed were left in her locker and on desks.

Rejecting all of Lesicko’s claims, the court noted that the sexually oriented comments were made nearly seven years prior to Lesicko’s alleged constructive discharge and were therefore time barred. The court further noted that, even if the comments were not time barred, there was no evidence connecting the comments to Lesicko’s constructive discharge. Consequently, the court determined that Lesicko was unable to prevail under the “direct proof” model.

The court further found that Lesicko’s age and gender discrimination claims failed under the “indirect proof” model because Lesicko could not establish that she was meeting CP’s legitimate performance expectations at the time of her alleged discharge and because Lesicko failed to identify any similarly situated male employees or younger employees who were engaged in similar misconduct but received less severe consequences. The court also rejected Lesicko’s claim that she had been constructively discharged noting that “. . . the record before this Court is replete with uncontroverted evidence that it was Lesicko who made the working conditions difficult to bear for her co-workers—creating stress, stirring up turmoil, verbally intimidating them and damaging morale.”

Read the Madison County Record's article about the lawsuit here.

Lesicko v. Conoco Phillips Pipe Line Co., No. 07-cv-0826 (S.D.Ill. Feb. 5, 2009)

Plaintiff’s “Mosaic of Evidence” Sufficient to Survive Summary Judgment in Title VII Case

In Hasan v. Foley & Lardner, the Court of Appeals for the Seventh Circuit reversed a District Court’s grant of summary judgment in favor of the law firm Foley & Lardner, finding that a genuine issue of material fact existed as to Foley’s true reason for firing Mr. Hasan.

The plaintiff, Zafar Hasan, is a Muslim of Indian descent and was an associate at the law firm of Foley & Lardner. Mr. Hasan joined Foley in October of 2000 and initially received positive performance evaluations. However, after September 11, 2001, matters changed for Mr. Hasan. On the day of the attacks, another Foley attorney overheard a partner on the firm’s Management and Compensation Committee state that “those people don’t belong here . . . they should kick them all out.” Mr. Foley responded by posting articles on his office door describing Islam as a peaceful religion. In response to the articles, another Foley attorney commented to Hasan that he should be careful “not to upset any sacred cows.” Mr. Hasan’s fortunes continued to worsen and he began to receive negative evaluations in 2002. His billable hours – which had been among the highest in the firm – also dropped off precipitously. In October of 2002, a meeting was held to evaluate the department’s associates. During the meeting, the partner who made the “kicked out” comment was critical of Mr. Hasan’s work (although the attorney had never actually worked with Mr. Hasan). There was testimony that other attorneys at the meeting were influenced by these critical comments. There was also evidence that one of the attorneys who attended the meeting later commented to Mr. Hasan that it was “too bad that those guys took out their religious dispute in Israel on you and had you fired.”

Mr. Hasan sued Foley claiming that he was fired after the September 11, 2001 terrorist attacks because of his religion, race, national origin, and color. Finding in favor of Foley, the trial court concluded that Mr. Hasan “failed to create a ‘convincing mosaic’ of direct or circumstantial evidence that could permit a jury to conclude that Foley intentionally discriminated against him” and entered summary judgment in Foley’s favor. Mr. Hasan appealed.

Reversing the trial court, the Court of Appeals for the Seventh Circuit concluded that Mr. Hasan had in fact presented a sufficient “mosaic” of circumstantial evidence to permit a jury to conclude that Foley terminated Mr. Hasan because of his religion and national origin. In arriving at this conclusion, the appellate court noted that discriminatory comments made by someone who provided input into or influenced the employment decision (as opposed the employee’s direct supervisor) may be relevant. The court also noted that the recency of discriminatory comments to the adverse employment action is relevant to the “total picture of discrimination” but that recency alone may not be viewed as a decisive factor. Finally, the court concluded that “behavior toward or comments directed at other employees in the protected group” (also known as “me too” evidence) is relevant and can support an inference of discrimination.

Hasan v. Foley & Lardner, LLP, No. 07-3025 (7th Cir. Jan. 21, 2009).

Court Conditionally Certifies Multi-State Class in Overtime Action Against Commonwealth

In Jost v. Commonwealth Land Title Insurance Company, 2009 WL 211943, No. 4:08CV734 (E.D.Mo. Jan. 27, 2009), four former St. Louis area escrow officers sued Commonwealth under the Fair Labor Standards Act claiming that they were encouraged to work, but not report, overtime. The plaintiffs sought conditional certification of their case as a nationwide collective action so that they could notify other past and present Commonwealth employees of the opportunity to “opt in” as plaintiffs in the litigation.

In support of their request, the plaintiffs submitted affidavits alleging that managers of Commonwealth’s St. Louis offices actively encouraged unpaid, unreported overtime. Plaintiffs also submitted evidence of similar practices in Commonwealth offices outside of Missouri.

The court declined to certify a nationwide class primarily because Commonwealth had a written policy requiring employees to accurately report all hours worked and barring management from requiring any employee from working off the clock. Additionally, the court found that plaintiffs failed to present any evidence suggesting that supervisors nationwide disregarded the written overtime policy.

However, the court concluded that the plaintiffs’ affidavits and deposition testimony were sufficient to support conditional certification of a class of all residential escrow officers (or those whose job it was to close residential loans or prepare loan paperwork for residential closings) who worked in Commonwealth’s offices in Missouri, Michigan, Kansas, Wisconsin, and Nebraska from May 21, 2005 to the present.

Court Awards Attorney's Fees in Excess of Damages in FLSA Case

In Urnikis-Negro v. American Family Property Services, Inc., No. 06 C 6014, Jan. 26, 2009 (N.D. Ill. 2009), Ms. Urnikis-Negro sued her former employer and two of its principals for $90,000.00 in unpaid overtime wages under the Fair Labor Standards Act. In addition to the unpaid overtime, Ms. Urnikis-Negro asked that her damages be doubled under the FLSA’s liquidated damages provision. The court found in Urnikis-Negro’s favor on the question of liability, but concluded that she worked far fewer hours of overtime than she claimed at trial. Pursuant to the “fluctuating hours” method set forth in the Department of Labor regulations, the court awarded Urnikis-Negro $12,233.00 in unpaid overtime, and doubled the amount to $24,466.00.

Urnikis-Negro then petitioned the court for an award of attorney’s fees and expenses which are also recoverable under the FLSA. Although the court rejected American Family’s argument that the fee award should not exceed the damage award, it acknowledged that it would consider “the degree of success Urnikis-Negro achieved” in determining an appropriate fee award. The court ultimately awarded Urnikis-Negro nearly $60,000.00 less in fees and costs than she was seeking and refused to reduce the award further in light of Urnikis-Negro’s relatively modest recovery. In support of its decision, the court noted that

Recoveries in individual FLSA suits like this one typically are modest; they involve cases in which a law-flouting employer has, in essence, tried to nickel-and-dime his employee. With that backdrop, limiting recoverable fees when a plaintiff recovers relatively modest damages in a FLSA case would create a significant disincentive for lawyers to take on such litigation, which, in turn, would undermine Congress’ intent in creating the statute and authorizing private enforcement actions.

Age Related Comment Made Shortly After Hiring Decision Could be Evidence of Discrimination

In King v. United States of America, et al., the U.S. Court of Appeals for the Eighth Circuit decided that a potentially ageist comment made shortly after an allegedly discriminatory hiring decision could be direct evidence of discrimination.

In early 2005, Ms. King and Ms. Evans both applied for a position with the U.S. Department of Agriculture. King was 54 years old when she submitted her application and Evans was 25. After interviewing both women, the Department's employment selection committee offered the position to Evans "based upon her undergraduate and graduate degrees, experience, 'go-getter' attitude, computer skills, and familiarity with the Department's operations." King sued alleging that the Department discriminated against her on the basis of her age when it offered the position to Evans.

At trial, King put on evidence that between 2003 and 2005 members of the selection committee were heard commenting that they "wanted to bring educated, young blood" into the Department and that the Department "had just hired a young, skinny blonde with a master's degree." King also elicited testimony from a co-worker, Ms. Triplett, who testified that she had a conversation with one of the committee members after Evans was offered the position about the member's "philosophy of hiring younger, educated people." In addition to this direct evidence of discrimination, King elicited indirect evidence of what she believed was an atmosphere of discrimination against older employees in the Department. The Department put on evidence, through the testimony of the committee members, that age was not a consideration in its decision to hire Evans.

The trial court found in favor of the Department, concluding that statements made by the committee members were not direct evidence of discrimination because they did not "demonstrate a specific link between the alleged discriminatory animus and the committee's decision to select Ms. Evans." The court failed to mention Triplett's testimony regarding the committee's "hiring philosophy." The trial court did, however, conclude that "statements made after the hiring decision was implemented, explaining why the decision maker chose one candidate over another, may be relevant." The trial court also concluded that King failed to overcome the Department's professed "legitimate, non-discriminatory reasons for the employment decision."

The appellate court remanded the case for further proceedings. Although the court determined that the earlier comments were not direct evidence of discrimination because they were made long before the hiring decision, the court was unable to conclude that the comment made shortly after the hiring decision - that it was one of the committee member's philosophy to hire "younger, educated people" - constituted direct evidence of discriminatory animus.

Failure-to-Promote Claim Fails Without Evidence of an Open Position

In Jones v. City of Springfield, Illinois, the Seventh Circuit Court of Appeals affirmed summary judgment in favor of the City on Mr. Jones' failure-to-promote claim. Mr. Jones, a Springfield, Illinois police officer, claimed that the City failed to promote him because he is white. On appeal, Mr. Jones argued that he presented sufficient evidence under both the direct and indirect proof models to survive summary judgment.

With respect to his direct proof, the court found that Mr. Jones failed to present evidence that any similarly situated officers received more favorable treatment. The court also found that Mr. Jones failed to present evidence that the City would have acted differently toward him had he not been white.

The court found Mr. Jones' indirect proof case (and the District Court's analysis of the indirect proof case) was also fatally flawed. Specifically, the court noted that ". . . the district court should have considered the availability of an open position under the prima facie case because in a failure-to-promote claim, a prima facie case presupposes the existence of an open position."

For an interesting article on Mr. Jones' exploits with the Springfield Police Department, see Dusty Rhodes, "Out of the Blue, Alan Jones, the new head of the Springfield Police Union, isn't a member of the old guard." Illinois Times, November 2, 2006.

Hostile Work Environment Not Necessarily Actionable Under Missouri Human Rights Act

In Gilliland v. Missouri Athletic Club, the Supreme Court of Missouri recently held that a hostile work environment is not actionable under the Missouri Human Rights Act unless the hostility is directed at the victim because of his or her race, color, religion, national origin, sex, ancestry, age or disability.

The plaintiff in the case, Tracy Gilliland, sued the Missouri Athletic Club for sexual harassment, race discrimination, and constructive discharge among other things. At trial, the jury found in favor of Mr. Gilliland on his constructive discharge claim and found the club liable for punitive damages. The jury rejected Mr. Gilliland's claims of race and sex discrimination. Mr. Gilliland appealed.

Affirming the trial court's judgment, the Supreme Court concluded that the jury's rejection of Mr. Gilliland's race and sex discrimination claims - and the fact that his jury instruction on constructive discharge made no mention of any category protected by the human rights act or other public policy - was fatal to his appeal.

For additional background on the case, see Kristen Hinman, "Taking it to the MAC," Riverfront Times, January 12, 2005, which was published while the case was pending.

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