ADA accommodations do not have to relate to essential job functions

The Fifth Circuit has clarified an important Disabilities Act issue in a case vacating summary judgment against an employee. Feist v. Louisiana, CA No. 12-31065 (9/16/13). The district court held the employee failed to establish a nexus between the requested accommodation and any essential function of her job. In the district court's view that was fatal to her claim she was denied a reasonable accommodation. In vacating and remanding, the Fifth Circuit panel (Davis, Jones, Benavidies) relied upon the statute and DoL regulations to conclude a request for a "free on-site parking space" to accommodate her osteoarthritis of the knee could be a reasonable accommodation because it could make existing facilities readily accessible. The case was remanded to determine whether the request was reasonable.

Fifth Circuit reverses SJ in employers favor

A Fifth Circuit panel (Davis, Graves and Higginson) in a per curium opinion, EEOC v. DynMcDermott Petroleum Operations Co., No. 12-40424 (July 26, 2013)  has reversed a Texas federal district court's grant of summary judgement to New Orleans based DynMcDermott. The case involved the decision not to rehire a former employee into a position he had previous experience related to performance. Plaintiff's evidence of age and disability discrimination included statements about needing a younger candidate and the plaintiff's wife's cancer. The appeals court parses the evidence and does a good job of explaining the existence of material fact disputes sufficient to compel reversal.

Firing Momma

A recent panel opinion of the Fifth Circuit, EEOC v. Houston Funding II, Ltd, No. 12-20220, reversed summary judgment in an employer's favor where the employer discharged a lactating mother. The holding, on the facts presented, found the EEOC, in representing the plaintiff had met its McDonnell-Douglass burden of presenting a prima facie case that the employer had terminated the plaintiff's employment on account of a pregnancy related condition. Of note, Judge Jones' concurring opinion reminds practitioners there is no duty to accommodate lactating mothers under Title VII. But it does not address the fact that:

[t]he Patient Protection and Affordable Care Act (“Affordable Care Act”) amended section 7 of the Fair Labor Standards Act (“FLSA”) to require employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk. Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. The break time requirement became effective when the Affordable Care Act was signed into law on March 23, 2010.

http://www.dol.gov/whd/nursingmothers/ 

Arbitration rejected

In Carey v. 24 Hour Fitness USA, Inc., the Fifth Circuit affirmed a trial court refusal to order arbitration of a FLSA claim because the employer retained the right to modify the arbitration agreement retroactively.

Age based hostile environment claim in Fifth Circuit

In Dediol v. Best Chevrolet, the Fifth Circuit has for the first time held a hostile environment claim under the ADEA is actionable. The Court reversed summary judgment for the employer both on the ADEA hostile environment claim as well as on a religious discrimination hostile environment claim.

SCOTUS Reverses Fee Award to Defendant

The Supreme Court has unanimously reversed and remanded an attorney fee award to defendant under 42 U.S.C. § 1988. The district court had dismissed meritless federal claims and remanded non-frivolous state law claims to state court. Defendant asked the federal court for attorney’s fees under §1988, for time spent on the entire suit, without differentiating between time spent on the dismissed federal claims and on the remaining state claims. After finding the federal claims were frivolous the district court awarded defendant for all work the attorneys had performed in the suit. The Fifth Circuit affirmed (2-1, Southwick, J. dissenting). The High Court opinion written by Justice Kagan holds:

In a suit of this kind, involving both frivolous and non-frivolous claims, a defendant may re- cover the reasonable attorney’s fees he expended solely because of the frivolous allegations. And that is all. Consistent with the policy underlying §1988, the defendant may not receive compensation for any fees that he would have paid in the absence of the frivolous claims.

Bankrupt and rejected

In Burnett v. Stewart Title, Inc., the federal Fifth Circuit Court of Appeals has joined the Third Circuit in holding that Section 525 of the Bankruptcy Code does not provide a cause of action against private employers who engage in discriminatory hiring practices against debtors in bankruptcy.

Rejected!

A 69 year old male who was terminated for allegedly engaging in sexual harassment did not survive summary judgment on his age discrimination claim in this Fifth Circuit case. Plaintiff claimed he was treated differently than younger workers, presented his own affidavit denying he engaged in the alleged harassment, presented a co-worker's affidavit that she did not "perceive his alleged comments as sexual harassment," and a statement from another worker that the person who fired plaintiff had called him an “old, gray-haired fart.” The later remark occurred more than a year before the termination and was deemed a stray remark. Because the issue is whether the company's articulated reason is a pretext for discrimination, not whether it is true or not, the Court found both the co-worker's perception and the plaintiff's denial insufficient to create a material issue of fact on the issue of pretext. As to the dissimilarity of treatment of the younger workers, plaintiff had failed to argue that below in opposing summary judgment, so the court did not consider that argument.

Mixed Motive retaliation lives

A divided Fifth Circuit panel has ruled that a mixed motive instruction in a Title VII retaliation case is appropriate, does not require direct evidence to support it, and is not inconsistent with the Supreme Court's decision in Gross v. FBL Financial Services, Inc., 129 S. Ct. 23 43 (2009). The majority opinion (Reavely and Wiener) is a must read for practitioners in the Fifth Circuit. It presents the past and present law of the Circuit in a straightforward, understandable opinion. The dissent (Jolly) notes the decision conflicts with the Seventh Circuit's ruling in Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961 (7th Cir. 2010).

Arbitration nixed

Over the weekend President Obama signed into law a provision of the defense spending bill which prohibits military contractors from enforcing arbitration clauses in employment contracts. In significant part the amendment is in reaction to a situation so bad even the Fifth Circuit refused to compel arbitration of all claims.

Fifth Circuit affirms SJ in same sex harassment case

Ho hum, the Fifth Circuit affirmed a district court's grant of summary judgement in a same sex harassment case. In Love v. Motiva Enterprises L.L.C. a divided court found Ms. Love (really, thats the plaintiff's name) failed to establish, with credible evidence, that the harasser was homosexual, an element of a same sex harassment claim in the Fifth Circuit. Much more after the jump.
Citing La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir. 2002). The court noted

A plaintiff in a same-sex sexual harassment case may establish discrimination because of sex by showing: (1) “the alleged harasser made ‘explicit or implicit proposals of sexual activity’ and provid[ing] ‘credible evidence that the harasser was homosexual;’” (2) “the harasser was ‘motivated by general hostility to the presence of [members of the same sex] in the workplace;’” or (3) “‘direct, comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.’”  Id. (quoting Oncale, 523 U.S. at 80, 118 S. Ct. at 1002).  It is the claim that this case involves the first type of evidence.

The court's majority (Smith and Reavely) wrote:

evidence shows that Sirey derided Love, frequently calling her a “stupid bitch,” “fat cow,” and “disgusting.”  She allegedly told Love that she was a “sorry excuse for a woman because she did not make the coker conducive for women to work in;” that she was a “failure as a woman;” and that “You think that’s a body you have?  You should be ashamed.”  Sirey also allegedly touched Love with her hands on two occasions.  On the first, Sirey confronted Love in the changing room and ran her finger under Love’s bra strap and her underwear near her hip while at the same time calling Love “fat” and “disgusting.”  On another occasion, Sirey began rubbing Love’s shoulders and back while Love was at the lunch table.  When Love protested, Sirey said she was “just being friendly.”  Love testified that Sirey also would seek her out at company functions, stand next to her, and touch her arm to let her know Sirey was present.  We agree with the district court, that these incidents, while offensive and inappropriate, do not support an inference of sexual attraction and implicit proposals for sex in light of Sirey’s consistent insults toward Love and demonstrated negative feelings about Love and her appearance.  Sirey’s conduct is more indicative of humiliating or bullying behavior.

And this is a not so remarkable opinion on those allegations. The majority opinion goes on to note that Love alleged that after she has weight loss surgery

and return to work from surgery she was obviously more attractive to Sirey, and that Sirey’s inappropriate conduct was no longer accompanied by negative remarks. According to Love, Sirey tried to hug her on her first day back at work while giving Love a ride in a company truck.  She also argues that on at least twenty occasions, Sirey rubbed her breasts against Love while reaching for a log book located in Love’s work area.  Sirey also locked Love in the women’s changing area and bathroom, stating that she would not free Love unless Love were nice to her and did favors for her.

The majority found the negative remarks continued after Love's return to work and that the pervasive pejorative remarks precluded a finding that any implicit proposals for sexual activity had occurred.

The majority also noted Love failed to establish her tormentor was homosexual either by her deposition, or by a declaration by a coworker who "heard Sirey state loudly several times that the reason the men did not like her was because she was gay or female.” The majority dismisses this evidence

But we do not find the statement to be clear and credible proof that Sirey is homosexual sufficient to defeat summary judgment. It is not clear whether the co-worker was uncertain which of the two conditions Sirey allegedly asserted as the reason for the men’s feelings or whether the co- worker heard Sirey express one or both conditions.  But at most, the statement indicates Sirey’s assessment of what her male co-workers think about her and does not affirmatively show Sirey is homosexual.

That sure seems to be a failure to see the evidence in the light most favorable to the non-moving party. The dissenting Judge (Dennis) takes the majority to task for that and other reasons.

The summary judgment record reflects that, over a period of a year-and-a- half when Love and Sirey were co-workers at Motiva’s Norco refinery, Sirey repeatedly rubbed her breasts and groin area against Love’s legs and upper body; touched Love under her bra and underwear straps while she was otherwise undressed; requested sexually-charged “favors” from Love on numerous occasions while, at times, fondling her own body; attempted to kiss and hug Love; complimented Love on her good looks; and stalked and touched Love at company functions and at Love’s work station.  Separately, Sirey was seen intimately kissing another woman and overheard referring to herself as “gay.” Yet the majority concludes that Love’s claim for same-sex sexual harassment does not survive summary judgment because Sirey’s alleged advances were canceled out “when considered in the context of Sirey’s rude and obnoxious persona . . . and her overall insulting and intimidating attitude toward Love,” maj. op. at 4, and because Love did not “show . . . that Sirey is homosexual[,]” id. at 5.

The entire dissent in this unpublished opinion is worth the read.