Proximate Cause and Independent Investigations

At some point, I'll tidy up prior posts in this blog that may or may not be helpful in light of the Supreme Court's decision in Staub v. Proctor Hospital.  There, the Supreme Court rejected the "hard and fast" rule that an "independent investigation" could automatically eliminate alleged bias by a non-decision-maker who provided information that was relied upon in the adverse employment action.  To quote the decision:

As we have already acknowledged, the requirement that the biased supervisor’s action be a causal factor of the ultimate employment action incorporates the traditional tort-law concept of proximate cause. See, e.g., Anza v. Ideal Steel Supply Corp., 547 U. S. 451, 457–458 (2006); Sosa, supra, at 703. Thus, if the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action (by the terms of USERRA it is the employer’s burden to establish that),then the employer will not be liable. But the supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.

But what is meant by "the traditional tort-law concept of proximate cause?"  To be honest, its use here seems out of place as it is a doctrine meant to relieve a remote tortfeasor (the person that is alleged to have caused harm to another) from liability.  Since employers, not biased supervisors, are liable for unlawful discrimination, using proximate cause to affect an employer' liability seems backwards.  The Court was not, we must assume, addressing the "traditional" effect of a proximate cause analysis but using it to illustrate the ultimate point, that the employer needs to show (and in some cases, such as USERRA, prove) that the supervisor's bias was not "a" cause of the employer's decision.

So what is proximate cause? This discussion of proximate cause is from a court of appeals decision (not in the employment discrimination field but a suit by shareholders against a corporations directors alleging a breach of the duty of loyalty) issued today:

The term “proximate cause” is pervasive in American tort law, but that doesn’t mean it’s well understood. A common definition is that there must be proof of “some direct relation between the injury asserted and the injurious conduct alleged.” Hemi Group, LLC v. City of New York, 130 S. Ct. 983, 989 (2010), quoting Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268 (1992). But “direct” is no more illuminating than “proximate.” Both are metaphors rather than definitions. What the courts are trying to do by intoning these words is to focus attention on whether the particular contribution that the defendant made to the injury for which the plaintiff has sued him resulted from conduct that we want to deter or punish by imposing liability, as in the famous case of Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928) (Cardozo, C.J.). The plaintiff was injured when a heavy metal scale collapsed on the railroad platform on which she was standing. The scale had buckled from damage caused by fireworks dropped by a passenger trying, with the aid of a conductor, to board a moving train at some distance from the scale. She sued the railroad; it would have been unthinkable for her to sue the scale’s manufacturer, even though if heavy metal scales did not exist she would not have been injured. No one would think the scale’s manufacturer should be liable, because no one would think that tort law should try to encourage manufacturers of scales to take steps to prevent the kind of accident that befell Mrs. Palsgraf. The railroad was a more plausible defendant; its conductor had tugged the passenger aboard while the train was already moving. But how could he have foreseen that his act would have triggered an explosion, as distinct from a possible injury to the boarder? If an accident is so freakish as to be unforeseeable, liability is unlikely to have a deterrent effect.

Coming closer to our case, the defendants cite our decision in Movitz v. First National Bank of Chicago, 148 F.3d 760 (7th Cir. 1998). The plaintiff had bought a building in Houston in reliance on what he claimed was the defendant’s misrepresentation of its value. Had it not been for the misrepresentation he would not have bought it. Shortly after the purchase the Houston real estate market collapsed and his investment was wiped out. The misrepresentation had not caused that collapse but it had been a cause of the plaintiff’s buying the building and thus had contributed to his loss. Yet we ruled, without using the term “proximate cause,” that he could not recover from the defendant because (among other reasons) that would produce overdeterrence by making the defendant an insurer of conditions that he could not control. Id. at 763. That would be as futile as making the manufacturer of the scale an insurer of Mrs. Palsgraf’s loss.

Proximate cause does not mean "but for."  Each of the examples the court of appeals gave could be "but for" causes of the perils described.  It means too remote

There is a lot to be said about the decision in Staub but for now, employers should continue to investigate allegations of employee misconduct only they should be sure to establish that information from an allegedly  biased (assuming that fact is asserted to begin with) should be independently corroborated so that the supervisor's alleged bias is as remote to the decision as possible.

Sixth Circuit Affirms DOL Dismissal of Pilot's Retaliation Claim

Over the years (beginning in the 1970's) Congress has added a number of retaliation provision that are enforced by the Department of Labor.  Complaints are filed with OSHA (which has a special team of whistleblower investigators), a hearing is held before a DOL ALJ (there is no jury trial) who issues written findings which the losing party can appeal to a body called the Administrative Review Board (ARB), and from there, to one of the federal courts of appeals.

The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S.C. § 42121, added a retaliation provision that protects certain pilots who make safety-related complaints (I'm not being exact).  Today, the Sixth Circuit issued a decision involving a pilot ("Hoffman") who filed an AIR21 complaint against his employer (NetJets) alleging he was not promoted because he had made safety complaints about several aircraft he piloted.

There are some irrelevant procedural quirks to the decision. The only one that matters here is that this was not a summary judgment decision.  The question for the Sixth Circuit was whether the evidence supported the DOL ARB's ruling in favor of the employer.  The legal challenge came down to why others were promoted to an "initial operating experience (IOE) instructor."  The vacancy announcement for the position was pretty general.  It did not say anything about having international flight experience.  The employer, however, was having trouble recruiting pilots who could fly internationally so it wanted the instructor to have the ability to train the existing pilots.   This was a preferred, but not required, qualification.  The pilot, of course, lacked international flight experience and was not promoted. 

Normally, the absence of a crucial qualification from the position vacancy doesn't bode well for the employer when there is a challenged to a promotion decision.  It didn't hurt the employer here, however.  The court explained why:

even though international experience was not listed in the May 2004 IOE instructor position announcement, there was evidence that NetJets was indeed interested in promoting pilots who possessed such experience. This evidence included the following: Decker [Director of Flight Standards] testified that NetJets was having trouble qualifying pilots to fly their international routes and thus needed instructors who could train pilots in this area; the documentation shows that every candidate was individually evaluated in his or her amount of international experience; five of the seven successful candidates possessed such experience, and of these five, four received three points in the international experience category, the highest-possible score for the category; and Hoffman was questioned about his international experience during his interview. This undercuts Hoffman’s argument that the international-experience category, like the point system in general, was only a pretext to deny him a  promotion. Hoffman points out that two pilots received zero scores for international experience and were promoted nonetheless.  However, NetJets never contended that international experience was required for the promotion, only that it was preferred. Moreover, there is a stark comparison between these two successful candidates and Hoffman: even without any international-experience points, these two candidates received total scores of five and six, respectively, whereas Hoffman received a total score of only one.

 So while the better practice is to include all important criteria in the position vacancy announcement or the job description, it is not automatically fatal where the employer consistently evaluated every candidate using the criteria it failed to include in the position vacancy announcement and the promotion decision(s) reflect the fact that the criteria was in fact important to the selection decision.

Obesity and the EEOC's ADA Final Regulations

A running debate in ADA case law is whether or not obesity is a covered impairment.  Decisions have gone both ways under the ADA as it was originally enacted.  Older EEOC guidance on what is a disability said that severe obesity was itself an impairment but that being overweight without a physiological disorder was not itself an impairment.  (The leading case on morbid obesity, Cook v. Rhode Island, 10 F.3d 17, 24 (1st Cir. 1993), actually turned on the “regarded as” definition of a disability and if an impairment is not a disability for actual disability purposes, it is also not a disability for perceived disability purposes. See 29 C.F.R. § 1630.2(i).)

On Friday, the EEOC issued final regulations construing the 2008 Amendments to the ADA (which take effect on May 24, 2011).  Since one major purpose of the 2008 Amendments was to increase the coverage for individuals with a disability, I was curious what these regulations said about whether obesity is a covered impairment.  The regulations (and comments to them) do not address the issue directly.  The comments do explain, however, that

The definition of the term ‘‘impairment’’ does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘‘normal’’ range and are not the result of a physiological disorder.

So, nothing appears to have changed.  The question goes unanswered.

Of course, after the 2008 Amendments, employer are best off assuming most any impairment is a disability and acting accordingly.  There are recognizing exceptions, of course, for temporary and minor injuries, but better to be safe than act on a mistaken belief that an employee does not have a disability.

Proving Pretext: Honest Belief v Denying Underlying Facts

There is much in a discrimination/retaliation decision the Sixth Circuit issued on Friday but the part that struck me was one that most employers don't think about at the time they are making an employment decision.  It is an important point, however, especially in light of the Supreme Court's decision in Staub v. Proctor Hospital.

The plaintiff in Bahma v. Mercy Hospital, worked as a Nuclear Medicine Technologist and, after he challenged at least one failure to promote him, was fired for engaging in unsanitary work practices an inappropriate patient care.  The incidences were documented and in many cases, the patient was the one who originally complained.  In ruling for the hospital on the retaliation claim, the court providing one of the best examples of the difference between supporting an employment action with an "honest belief" and the employee's denial of the underlying facts:

The evidence indisputably shows that Mercy received several patient complaints regarding Bhama’s infection-control procedures and professionalism in the months preceding his termination, including one stating that Bhama disposed of a blood-soaked cotton ball with his bare hands and immediately afterwards tried to administer an injection without washing up. Bhama never denied that Mercy received these complaints, he simply denied the truth of the allegations and dismissed them out of hand as inadmissible hearsay.

The message for employers should be pretty clear.  Before taking action, properly investigate and make sure employment action is supported by the facts.  If the employee disputes the facts, make sure the investigation fully explains why the employee's assertions are not accepted or believable.

6th Circuit Rejects ADA Claim from Poor Performing State Employee

In a published (and therefore binding precedent) decision issued today, the Sixth Circuit upheld the poor performance-based firing of an individual with a disability by Tennessee Department of Mental Health and Developmental Disabilities.  The interesting thing about the decision is that the employee (named Whitfield) blamed some, but not all, of her performance issues on her disability and the Department's failure to "successfully" accommodate them.  The court rejected this approach saying:

Although Whitfield attributes her spelling errors to a lack of spell check in the computer program used to input complaints, she made serious spelling and grammatical errors even in programs that had a spell-check feature. In December 2007, nearly three months into her employment, Whitfield neglected to enter the required county on numerous inspection forms and, on another form, entered the wrong county. And although she had difficulties using her computer due to her disability, she also made errors in assignments that were not performed on a computer, such as organizing files alphabetically. On other occasions, she mailed letters without zip codes or complete addresses. Many of Whitfield’s errors can be attributed to nothing more than  Whitfield’s lack of attention to detail, and Whitfield admitted as much in her deposition, stating that she “just wasn’t looking that close” when addressing mailings. At bottom, Whitfield routinely made serious errors that were unrelated to her disability or to a lack of accommodations.
In this context, Whitfield must do more than point to the facts that Defendants knew she was disabled and failed to provide all of her requested accommodations. Although these facts may help Whitfield establish her prima facie case of discrimination under the ADA, in order to survive Defendants’ motion for summary judgment, she needs to show that Defendants’ explanation for her termination could be deemed pretextual. Whitfield focuses only on the problems she had entering complaints into the computer, arguing that, if she had been given all the accommodations she requested, she would have not had the same problems, and, further, other employees made similar errors or were not required to enter complaints at all. Appellant’s Br. at 18–21. Although Whitfield succeeds in creating a genuine issue as to whether she could have adequately performed that particular function with the proper accommodations, she does not address the serious errors she routinely made while performing tasks that were not at all impacted by her disabilities, such as confirming that an envelope has a zip code before dropping it in the mail. Because Whitfield does not create a genuine issue of material fact as to whether she was fired due to her disability, summary judgment in Defendants’ favor was proper.

The holding let the court avoid addressing whether the Department had failed to reasonably accommodate the employee.  The Department had made several attempts to accommodate her but there were technological limitations that the IT employees could not overcome relating to placement of her monitor and the use of a one-handed  keyboard.

Employers must still make reasonable accommodations, of course, but this decision provides reassurance that an employer may terminate a disabled employee for poor performance, especially where the performance issues are not caused by the disability.  Terminations for performance issues that are caused by a disability require more thought but even the EEOC acknowledges that employees with a disability may be held to the same performance standards as other employees so long as the employee is provided the reasonable accommodations "required to assist an employee in meeting a specific production standard."

Another aspect of the decision is worth mentioning.  The court expressly rejected the employee's argument that all she needed to do to get to a jury was to establish a prima facie case.  Given it is very easy to establish a prima facie case, that provides employer with greater security when dealing with employee performance problems.

Separating Protected Complaints from Misconduct

An Air Tran employee in Dayton convinced the Sixth Circuit to reverse summary judgment for his employer in a Title VII retaliation claim.  The employee had complained to his station manager that his immediate supervisor was racially biased.  The employee, in the supervisor's mind, was a poor performer and caused problems.  In a meeting where the employee was suspended for misconduct, the station manager told him (allegedly)  "I'm tired of your complaints" against the supervisor.  While there were other reasons the court reversed summary judgment, the station manager's alleged statement was a major factor.

Perhaps the station manager did not mean to include the racial complaints in the set of complaints she was "tired" of receiving but the lesson is that employers should always be careful not to make comments that could be taken as criticizing protected activity.  That includes being careful not to make broad and ambiguous comments of the type allegedly made here.

The name and link to the unpublished decision is Hill v. Air Tran Airways (6th Cir. 3/23/2011).

FIfth Circuit Rejects USERRA Hostile Work Environmennt Claim

Several Air Force and Air National Guard Reserve pilots for Continental Airlines filed a lawsuit under USERRA (Uniformed Services Employment and Reemployment Rights Act) alleging that comments made by their managers created a hostile work environment. The comments, the court decision said, were:

“If you guys take more than three or four days a month in military leave, you’re just taking advantage of the system.”; “I used to be a guard guy, so I know the scams you guys are running.”; “Your commander can wait. You work full time for me. Part-time for him. I need to speak with you, in person, to discuss your responsibilities here at Continental Airlines.”; “Continental is your big boss, the Guard is your little boss.”; “It’s getting really difficult to hire you military guys because you’re taking so much military leave.”; “You need to choose between
CAL and the Navy."

 Assuming these comments were made, the court nevertheless held that USERRA did not provide the pilots with any relief.  Discrimination under USERRA, the court reasoned, includes

the denial of any “benefit of employment.” The language . . . defining the word “benefit” and the phrase “benefit of employment”  includes the long list of terms “advantage, profit, privilege, gain, status, account, or interest.” But [USERRA] does not refer to harassment, hostility, insults, derision, derogatory comments, or any other similar words.

The decision is precedent for Texas, Louisiana and Mississippi.  There is contract precedent so Tennessee employers should exercise caution in relying upon it.  It also serves as a reminder that employers should not make tolerate negative comments about military service, or the disruption absences caused by military service.

Carder v. Continental Airlines,  (5th Cir. 3/22/2011).

Family Dollar Store Manager Found Exempt under FLSA

A Family Dollar Store manager has lost an appeal of an FLSA exemption lawsuit.  The employee, Irene Grace, claimed she was not exempt because she performed a high percentage of non-managerial, manual tasks.  The court, applying the DOL Wage Hour Division regulations as they existed before the 2004 changes, disagreed, saying:

In this case, Grace was in charge of a separate retail store, seeking to make it profitable. While she catalogs the nonmanagerial jobs that she had to do, claiming that they occupied most of her time, she does so without recognizing that during 100% of the time, even while doing those jobs, she was also the person responsible for running the store. Indeed, there was no one else to do so, and it cannot be rationally assumed, nor does the record support a claim, that the store went without management 99% of the time. Grace also fails to acknowledge the importance of performing nonmanagerial tasks in a manner that could make the store profitable, the goal of her managerial responsibility.

The decision, Grace v. Family Dollar Store, from the Fourth Circuit, can be read at http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/092029.P.pdf

US Supreme Court Says Oral FLSA Complaints are Protected

Resolving a split in the federal courts of appeals, the Supreme Court today held that an oral complaint of a violation of the Fair Labor Standards Act is protected conduct under the FLSA's anti-retaliation provision.  Here is the interesting part:

[T]he statute requires fair notice. Although the dictionary definitions, statutes,regulations, and judicial opinions we considered . . . do not distinguish between writings and oral statements, they do suggest that a “filing” is a serious occasion, rather than a triviality. As such, the phrase “filed any complaint” contemplates some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns.

Moreover, the statute prohibits employers from discriminating against an employee “because such employee has filed any complaint.” [29 U.S.C.] §215(a)(3) (emphasis added).And it is difficult to see how an employer who does not (or should not) know an employee has made a complaint could discriminate because of that complaint. But we also believe that a fair notice requirement does not necessarily mean that notice must be in writing.

* * *

To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection. This standard can be met, however, by oral complaints, as well as by written ones.

The full decision in Kasten v. Saint-Gobain Performance Plastics Corp. can be read at http://www.supremecourt.gov/opinions/10pdf/09-834.pdf

A New Approach and An Old Subject

I've been silent for a long while - too long - largely because of the press of work, the holidays, and the feeling that blog posts were repeating topics already addressed.   It has become obvious that I simply do not have the time to post lengthy blog posts along the lines I have previously done.   What I hope to do is put up shorter posts on more basic subjects but also post, as the issue arise, links to decisions that impact Tennessee employers. I welcome your comments on the new approach.

There was, as  a matter of fact, a rather interesting racial harassment appeal arising out of Maine.  It touches on the issue of when discipline for harassing conduct was adequate even if not fully effective in preventing future harassing conduct.  Employer encounter this a good bit. 

Two of the black plaintiff's co-workers made overtly racial remarks (not the kind I will repeat here though they are set forth in the decision).  He complained and the company owner "became irate and berated the men, making clear that such misconduct unacceptable" and that a repeat performance would result in their termination. The warning wasn't entirely successful but the plaintiff never again complained to the company owner, choosing to file a lawsuit after leaving employment due to a work related injury.

Siding with the employer, the court's decision has several good statements about the duty an employer has when an employee complains about harassing conduct:

• there is no legal rule that requires treating hateful speech as the workplace equivalent of a capital
  offense
• the imposition of employee discipline is not a rote exercise, and an employer must be accorded some flexibility in selecting condign sanctions for particular instances of employee misconduct.
• The plaintiff's argument that the sanction must have been inadequate because it was ineffective to stop the harassment is nothing more than a post hoc rationalization.  An employer's disciplinary decision must be evaluated in real time; it cannot be evaluated in hindsight.

You can read the full decision at http://www.ca1.uscourts.gov/pdf.opinions/10-1387P-01A.pdf

Get Your Story Straight Before Taking Action

A decision released today from the Sixth Circuit illustrates that Tennessee employers need to get their story straight before firing an employee. 

Brookdale Senior Living, Inc. is, its website says, the nation’s largest owner and operator of senior living communities throughout the United States and a leading national provider of senior-related services. The plaintiff, David Eades was a Regional Director of Start-up Operations.  Eads thought his new supervisor harassed and degraded him because of his age (he was in his early 40s).  Eads complained about it to HR and later to the company president.  Eads and the company discussed a severance package and Eads was sent home with the assurance that he was not fired.  Eads later learned his supervisor was telling folks he had been fired and he could no longer access his email from outside of work.  

The court of appeals held Eads was entitled to a jury trial.  The problem for Brookdale was that, as the court said it was "advancing different reasons in its brief on appeal than it represented to the district court."  Even worse, Brookdale's assertions in the litigation were not the same as those it made in response to Eads EEOC charge.  Brookdale's in house counsel said in the response that Eads had been terminated for "lack of any performance in any position."  This answer was so far wrong that Brookdale's brief on appeal "explicitly denies having terminated Eades for performance issues" saying its counsel had made a mistake. As the court said, however, "Brookdale offers no evidence that either one suggested that the response was erroneous, nor does it explain how its Senior Vice President for Legal Services made such a 'mistake.'"

The inconsistency with the EEOC response was not the only problem. Brookdale's lawyers appear to have put to much "spin" on the severance discussions. They asserted that Eads said "he could not work with [his supervisor] and that he wanted a severance package, but this position is inconsistent with the record testimony of the attendees of that meeting."

The problem with Brookdale's case wasn't simply that it gave unsupported reasons for firing Eads.  Any one of the reasons Brookdale advance might have valid ones (had the facts been in support).  But when employer  and employer asserts different and inconsistent reasons for a decision, that is itself evidence of pretext, as the court said: “An employer’s changing rationale for making an adverse employment decision can be evidence of pretext.”  

In practice, there will be some debate as to what amounts to a "changing rationale."  Courts rightly look to whether the changing reasons are inconsistent, not merely changing.  For example, courts recognize that expanding on a reason already advanced does not ordinarily amount to taking an inconsistent position.  Here, however, Brookdale's assertion to the EEOC that performance was the sole reason for firing Eads could not be reconciled with its position in the litigation.  

By now, the lesson is obvious.  Before taking any employment action, employers need to investigate the  facts and make sure the explanation given at the start is something the employer can live with if litigation ensues.

Tennessee Employers, Get thee to Federal Court - 5/25/2011 Update

The General Assembly has passed a bill that has the effect of overruling the Gossett decision. The legislation is discussed in this post.

Yesterday, the Tennessee Supreme Court issued two decisions in employment retaliation claims that sent a chilling message to Tennessee employers.  The decisions impose new and troubling procedural requirements on employers who try to get retaliation (and perhaps discrimination) claims dismissed prior to trial.  If there ever was a reason not to remove a case to federal court when a Tennessee employer is sued, the Tennessee Supreme Court just removed it.

The primary decision is Gossett v. Tractor Supply where a 3 to 2 majority of the court held that the McDonnell Douglas analysis does not apply when an employer seeks summary judgment in a retaliation claim.

McDonnell Douglas v. Green  is a U.S. Supreme Court decision, early on in the history of Title VII, which set forth the procedure for analyzing discrimination claims. It is not a procedure (unlike the rules governing summary judgment), but a method of analyzing claims where there is not an admission of discrimination.  Later U.S. Supreme Court decisions (a case called Burdine is the most significant among them) refined the  analysis by saying the employee must prove the employer's illegal motive.  The pretext analysis I'm so fond of discussing here is one aspect of the McDonnell Douglas/Burdine analysis, as it has come to be known.

Summary judgment is a way for employers (among others) to get a discrimination/retaliation claim dismissed without a trial.  Trials are expensive.  To obtain summary judgment, the employers needs to show that there is no disputed fact that is material to the outcome.  In practice, this usually boils down to showing that the employee cannot prove that the employer's reason for the action is a pretext for discrimination/retaliation.  Pretext, of course, means a lie, a phony reason given to hide a real reason.

I will cut to the fundamental point, the Tennessee Supreme Court's reason for abandoning McDonnell Douglas/Burdine in when ruling on a motion for summary judgment is based upon the legally flawed premise that courts misinterpret precedent.  The court said, "[i]n addressing the issue of pretext, a court may fail to consider the facts alleged by the employee to show a prima facie case."  But for the justice system to work, courts have to presume other courts will follow precedent.

The belief that courts do not consider evidence that supports a prima facie case is contrary to a 10-year old decision of the U.S. Supreme Court.  In Reeves v. Sanderson Plumbing, the Court held that the pretext analysis includes the evidence from the prima facie case: "the trier of fact may still consider the evidence establishing the plaintiff’s prima facie case 'and inferences properly drawn therefrom … on the issue of whether the defendant’s explanation is pretextual.'"

Justifying a major departure from federal precedent on a flawed premise is bad enough.  But the reason for it is equally inconsequential.  The prima facie case raises a presumption that the employer can rebut.  The evidence it takes to establish a prima facie case is exceptionally minimal.  Basing this kind of a decision on a  concern that a court might ignore evidence used to support the prima facie case is like a football coach complaining about a referee's blown call after losing the game 41 to 3.

The Tennessee Supreme Court also said applying McDonnell Douglas at the summary judgment stage is confusing and "can result in the grant of a summary judgment despite the presence of genuine issues of material fact."  It is wrong about the first point.  Federal courts have for decades applied McDonnell Douglas to summary judgment motions without confusion.  The decisions the court cited as evidence of confusion generally involved "mixed motive" claims.  Mixed motive claims are confusing because they do not apply the McDonnell Douglas analysis.

The court's explanation for its second conclusion is sparse and deeply flawed.  To start with, as one federal court of appeals recently said, McDonnell Douglas is "designed to make it easier for plaintiffs to withstand summary judgment in discrimination cases, in the belief that a discrimination suit (unlike, for instance, an action for negligence or breach of contract), puts the plaintiff in the difficult position of having to prove the state of mind of the person making the employment decision."  Gacek v. American Airlines, ___ F.3d ___ (7th Cir. 2010) (emphasis added). 

The court cited only one decision where McDonnell Douglas supposedly resulting in summary judgment being granted inappropriately.  That was, remarkably, a 2007 decision from the Tennessee Supreme Court which held that timing alone could not establish a pretext for retaliation. The court now seems to be saying timing alone can defeat summary judgment in a retaliation claim. If so, that is a significant departure from its own recent precedent and inconsistent with federal court precedent.  (My views on how courts ignore logic in saying timing can be evidence of motive are pretty clear.)

Perhaps worst of all, the court provides no guidance for lower courts on the rule that now apply to retaliation claims on a summary judgment motion.  (Saying the summary judgment rules apply is not guidance.)  Is the employee still required to establish the employer's reason for the adverse action is a pretext (in a case where there is no admission of bias by the employer)?  The decision leaves it open for employees' lawyers to argue that summary judgment can never be granted in a retaliation claim were the employee can establish a prima facie case.

Another point needs to be made (or else I'll be misquoted).  As best I can tell, both decisions were common law retaliatory discharge claims.  The court never says its decision applies to discrimination claims under the Tennessee Human Rights Act (THRA).  It is implied but since neither appeal concerned a THRA claim, the issue is still open.  Suppose, for a moment, this ruling applies to a THRA claim.  It is common for an employee to bring a THRA claim and a federal discrimination claim in the same lawsuit.  Gacek held that McDonnell Douglas is substantive law, not a procedural rule.  That means state courts hearing federal discrimination claims must follow McDonnell Douglas even in ruling on motions for summary judgment.  Nothing in Tennessee's summary judgment procedures permits a state court to refuse to apply U.S. Supreme Court precedent on federal claims.  So, on the same facts, summary judgment could be granted on the federal claim but not on the state claim not because of any difference in federal or state discrimination laws, but solely because of the way the Tennessee Supreme Court has said to apply summary judgment.

I've carried on with this quasi-rant too long.  The best advice for any Tennessee employer is to insist that your attorney remove to federal court all claims that can be removed (the rules on this are complex but a discussion of them is beyond the point I want to make here).  The Tennessee Supreme Court's decision only affects summary judgment motions in state court.  (State courts will continue to apply the McDonnell Douglas analysis as a matter of substantive law (such as at trial or on post-trial motions)).  Federal courts apply federal rules applicable to summary judgment even when ruling on state law claims.

It may be that in any one case, summary judgment isn't appropriate.  Federal courts, however, have developed and apply rules that give the employer a fair shot at obtaining summary judgment (and do so in a way that does not trod on employees, either). Unfortunately, that is no longer true in state court.

When What Happens in Vegas Won't Stay in Vegas

Prospect Airport Services has some 4000 employees nationwide, some of these provide gate services (such as wheelchair assistance) at the Las Vegas airport. Prospect found itself on the wrong end of a sexual harassment lawsuit by the EEOC when a female co-worker began propositioning a male employee. Today, the Ninth Circuit Court of Appeals held the female's harassment was severe enough to warrant a trial even though the female touched the male only once.

The female attempted to begin the relationship with a note which said she was “turned on” and wanted to “go out" with the male but the male told her he was not interested. She continued with several more notes, including a photograph of herself, "a head and shoulders-type shot with a pressing together of the breasts. . . . no clothing on that portion . . . . the cleavage of the breasts sort of together." She persisted, telling him she "gave a “very good bath wash and body massage" adding, “I do want you sexually and romantically.”

The male made several complaints to his supervisor who promised to address it but did not. He later complained to her supervisor who supposedly told the male he "did not want to get involved in personal matters" but did tell the female co-worker to stop. Instead of stopping she increased the frequency of her suggestive comments and enlisted co-workers to pressure the male. Some asked him if he was gay (he wasn't). The male was finally fired for poor performance which he attributed to the constant harassment.

Female to male harassment claims are rare, of course, though we can speculate that if they are going to happen, they are as likely to happen in Las Vegas as anywhere. The court rejected any suggestion that a different standard applied because the victim was male:

It cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome. [The male] suggested this might be true of other men (the district court decision noted that [the male] "admits that most men in his circumstances would have 'welcomed'" her advances). But that is a stereotype and welcomeness is inherently subjective, (since the interest two individuals might have in a romantic relationship is inherently individual to them), so it does not matter to welcomeness whether other men might have welcomed [the female's] sexual propositions.

But perhaps more interesting, and equally applicable regardless of whether the male is the harasser or victim, is the holding that the conduct was severe or pervasive enough to amount to actionable harassment even though the only contact by the female was a kiss on the cheek.  This was not "severe" harassment but it was pervasive because the female's: 

pursuit of [[the male] was relentless. She would not leave him alone, despite his repeated clear rejections of her overtures. She recruited other co-workers to deliver messages to him; the campaign broadened to include the whole workplace. Other workers began mocking [the male] for his failure to respond to [the female's] sexual advances. [The male] described over six months of constant (and often daily) sexual pressure and humiliation from [the female] and other co-workers.

This being co-worker harassment, the male also had to show the employer's response to his complaints was inadequate.  Here, the court said, there was no contest:

His immediate supervisor . . . failed even to tell [the female]  to stop. He repeatedly brought his concerns to others in management, and a manager told [the female]  to stop, but management did nothing about it when [the female]  did not stop, and management knew she had not. Instead the assistant general manager told [the male] Lamas to sing to himself “I’m too sexy for my shirt.”

While the moral of the story is probably obvious, employers who rely on a stereotyped view of any harassment complaint are asking for costly litigation.  Any employee who complains about harassment should be taken seriously and the complaint investigated.  The complaint may ultimately be proven to be meritless  for any number of reasons but that should not be assumed at the start based upon stereotyped beliefs.  And, of course, supervisors and managers should be trained how to deal with (or report) harassment complaints.