A $650,000 compensatory award was affirmed by the 6th Circuit recently (in an unpublished decision) where a plaintiff prevailed on a Title VII retaliation claim. Fischer v. UPS. The court rejected the defendant’s argument that the award was too high given that the plaintiff did not present expert medical proof as to emotional distress or mental harm. Acknowledging the large size of the award, the court held that the jury’s compensatory damage award did not clearly exceed the maximum that a jury could reasonably find to be compensatory for the plaintiff’s loss.

Also, the 6th Circuit reinstated an award of punitive damages to the plaintiff. The jury’s award of 1.3M in punitive damages was reduced to Title VII’s statutory cap of $300,000. In a post-trial motion, the defendant convinced the district court that the jury’s award of punitive damages was improper. The 6th Circuit reversed the district court’s decision finding that the jury could have reasonably concluded that the defendant did not engage in good faith efforts to implement its anti-discrimination/anti-retaliation policies.

This is a fantastic decision on many levels. The 6th Circuit panel hearing the case was compromised of Judges Cook, Sutton and Suhrheinrich. The panel was appropriately deferential to the jury in this case, which is a nice to see at the appellate level. Thanks to my friend Nashville attorney Wade Cowan for bringing this case to my attention.

In a case decided yesterday, a jury verdict awarding $750,000 in compensatory damages and $300,00 in punitive damages, as well as an approx. $130,000 in back pay and front pay, was upheld by the 6th Circuit Court of Appeals. Click here to read the decision: West v. Tyson

One interesting issue involved the defendant’s request that the compensatory damage award of $750,000 be remitted. (Opinion at 29-31).

At trial, the plaintiff requested that the jury award up to $500,000 in compensatory damages. Notwithstanding the plaintiff’s request, the jury proceeded to award the plaintiff $750,000 ($500,000 for past emotional distress and $250,000 for ongoing emotional distress). Now, this is my kind of jury.

On appeal, the defendant argued that an award of compensatory damages beyond that requested by the plaintiff must be remitted. This argument was rejected by the 6th Circuit.

While it acknowledged that an award in excess of that requested was a factor to be considered when entertaining a motion for remittitur, the Court disagreed that it was bound as a matter of law to reduce the award to an amount that had been requested. Instead, the Court held that the proper legal standard simply required it to determine whether the award “is beyond the maximum damages that the jury reasonably could find to be compensatory for a party’s loss.” (Op. at 30). And based on the Court’s review of the evidence, an award of $750,000 was not beyond the max a jury could have awarded.

Yesterday, Magistrate Judge Tu M. Pham from the Western District of Tennessee issued a decision granting a plaintiff’s motion for partial summary judgment in a FMLA case. The name of the case is Green v. Third Party Solutions, Inc. and a copy of the decision can be accessed by clicking here. SJ Order. There are a couple of interesting points in the decision.

First, the court found that the defendant had interfered with the plaintiff’s FMLA rights thus finding in favor of the plaintiff on her FMLA interference claim. (SJ Order at 12-19). The court found that the defendant improperly terminated the plaintiff’s employment based on its belief that the plaintiff had not submitted a properly completed health care provider certification form regarding her FMLA leave request. Specifically, the court held that the FMLA certification form completed by the healthcare provider was sufficiently complete as a matter of law even though the form did not set forth an end duration date. As a result, the court held that the defendant illegally interferred with plaintiff’s FMLA rights.

Second, the court held that the defendant had waived its right to raise and rely on an after-acquired evidence defense, which would cut off the plaintiff’s damages if successful. The defendant argued that it discovered during litigation that the plaintiff had lied on her job application; therefore, plaintiff’s damages should be cut off as of the date it learned of plaintiff’s deception.

As an initial matter, the court agreed “with the majority of the courts and conclude[d] that the after-acquired evidence defense is an affirmative defense that must be pleaded under [FRCP] Rule 8(c).” (SJ Order at 26-27). The court next found that the defendant had not raised the after-acquired evidence defense in its answer waiting to first raise the matter in its motion for summary judgment. The court then held that the plaintiff would be prejudiced if it permitted the defendant to raise the defense after the close of discovery. Thus, the court determined that the defendant had waived its right to raise and rely on the after-acquired evidence defense.

Nice win for the plaintiff in this case.

A recent decision from the Western District of Tennesee discusses and rejects an employer’s use of the “honest belief” rule in a retaliation case. The case is Turner v. Hoops, L.P. and can be accessed here: Turner v. Hoops

Here are the facts:

Riley Turner, who worked in the engineering department for Hoops, L.P. at the FedEx Forum in Memphis, alleged he was retaliated against after he complained about race discrimination against himself and about a co-worker who was subject to sexual harassment.

Turner was subsequently terminated by Hoops, L.P. because its investigation into the sexual harassment charges brought by Turner’s co-worker allegedly revealed that Turner had viewed pornographic images on his work computer. Turner denied that he ever viewed such images on his work computer.

Hoops argued that it didn’t matter whether Turner actually viewed such images since it performed a good faith investigation and had an “honest belief” that Turner viewed such images.

Judge McCalla rejected this argument permitting a jury to decide whether Hoops’ decision to Turner for allegedly viewing porn was a pretext for retaliation. (Order at 18-20).

Judge McCalla noted that in addition to Turner’s denial that he viewed these images, Hoops admitted to losing the computer hard drive, which would have potentially exonerated Turner. Accordingly, Judge McCalla held that “the loss of the hard drive containing the information relating to Plaintiff’s viewing of pornography precludes Defendant’s reliance on the honest belief rule as a matter of law.” (Order at 19).

In an opinion issued today, the 6th Circuit reversed summary judgment in favor of the defendants in a First Amendment retaliation case. The case is styled Kindle et al. v. City of Jefferstown et al. Click on the following link to read the opinion. 10a0159n-06.

Here are the facts: The plaintiffs, who worked for the Jeffersontown, KY police department, wrote a report particularly critical of a supervisor and were terminated shortly thereafter. The district court dismissed the plaintiff’s First Amendment retaliation claim holding that the plaintiffs’ speech did not address a matter of public concern.

On appeal, the 6th Circuit noted that in determining whether a public employer has violated an employee’s First Amendment rights of free speech, the U.S. Supreme Court has instructed courts to engage in a three-step inquiry. First, a court must determine whether the relevant speech addressed a matter of public concern. Second, if the answer is yes, the court must balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. Third, the court must ascertain whether the employee’s speech was a substantial or motivating factor in the employer’s decision to take the adverse employment action against the employee.

Citing various U.S. Supreme Court cases, the 6th Circuit also noted that “statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors.”

According to the 6th Circuit, whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement. Matters of public concern include speech that relates to any matter of political, social, or other concern to the community. But speech dealing with matters only of personal interest to a public employee is generally not afforded constitutional protection.

Analyzing the content of the report submitted by the plaintiffs, the 6th Circuit noted that it had consistently held that speech on the same topics as the report–the efficacy and operations of public agencies and allegations of misconduct by public
officials–addressed matters of public concern. Thus, the 6th Circuit held that the district court erred in granting summary judgment to the defendants and found that the plaintiffs’ speech was protected by the First Amendment because it touched on a matter of public concern. The case was remanded for the district court to address the remaining prongs of the Pickering balancing test.

I am presently representing a client claiming national origin discrimination. My client, who is originally from Asia and for whom English is his second language, alleges he was demoted from a position in part because his superiors believed his accent would make it difficult for him to deal with customers.

In researching this matter, I have learned that the 6th Circuit has recognized that linguistic discrimination constitutes national origin discrimination. In re Rodriguez, 487 F.3d 1001, 1008 (6th Cir. 2007). In this case, the 6th Circuit held that an employer’s comments concerning the plaintiff’s accent constituted direct evidence of national-origin discrimination. Id. at 1009.

The Rodriguez case also tracks the EEOC’s position, which “defines national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group.” See 29 C.F.R. § 1606.1. 29cfr1606.1

Click here for additional guidance on national origin discrimination from the EEOC.

Under the FMLA, any eligible employee who takes FMLA leave shall be entitled – on return from such leave -to be restored by the employer to the position of employment held by the employee when the leave commenced, or to be restored to an equivalent position. 29 U.S.C. § 2614(a)(1). This right is qualified however by 29 U.S.C. § 2614(a)(3)(B), which essentially provides than an employee returning from FMLA leave is not entitled to restoration unless he would have continued to be employed if he had not taken FMLA leave. A recently decided case from the 6th Circuit Court of Appeals addresses the interplay between these statutory provisions.

In Cutcher v. Kmart Corp., 2010 WL 346131 (6th Cir. Feb. 1, 2010), the plaintiff returned from FMLA to learn that her employment had been terminated allegedly because of a reduction in force. Cutcher v. Kmart Corp. Invoking 29 U.S.C. § 2614(a)(3)(B), the defendant argued that the plaintiff would have been terminated even had she not taken FMLA leave. The plaintiff, however, challenged her termination arguing that the defendant negatively considered her use of FMLA when it made the decision to terminate her employment and that the defendant retaliated against her by she used FMLA leave.

The 6th Circuit reviewed the evidence presented by the plaintiff, which included the defendant’s consideration of the plaintiff’s use of leave on her appraisal score, and determined that a reasonable jury could conclude that the plaintiff’s termination was based in part on the plaintiff’s use of FMLA protected leave. Notably, the 6th Circuit held that the proof amassed by the plaintiff established a jury issue on plaintiff’s FMLA interference claim under 29 U.S.C. § 2615(a)(1) and plaintiff’s FMLA retaliation claim under 29 U.S.C. § 2615(a)(2).

On November 14, 2006, the 6th Circuit issued an under the radar per curiam decision dismissing Vicky Crawford’s Title VII retaliation case against Metropolitan Government of Nashville and Davidson County. See 211 Fed. Appx. 373 (6th Cir. 2006). That had to be an incredibly difficult day for Ms. Crawford.

Fortunately, Ms. Crawford’s petition for cert was accepted by the U.S. Supreme Court, which unanimously reversed the 6th Circuit’s decision on January 26, 2009. See Crawford v. Metropolitan Government of Nashville and Davidson County, 129 S.Ct. 846 (2009). The case was remanded for a jury trial on Ms. Crawford’s retaliation claim.

And yesterday, after a week long trial in Nashville federal court, the jury returned a verdict in favor of Ms. Crawford on her retaliation claim. Ms. Crawford was awarded over 1.5M in damages (420k in compensatory damages; 408k back pay; and 727k front pay). Crawford Verdict Form

If punitive damages were permitted against governmental entities under Title VII, which they are not according to 42 U.S.C. 1981a(b)(1) (click here), I can only imagine that the verdict would have been even bigger.

Congrats to Ms. Crawford and her trial attorney, Ann Buntin Steiner of Nashville, as well as Professor Eric Schnapper of Seattle, who handled Ms. Crawford’s appeal at the U.S. Supreme Court.

An argument that I see from time to time is the contention by employers that position statements submitted to the EEOC are not admissible at trial. Often, inartfully drafted position statements contain evidence supporting a plaintiff’s claim of discrimination or retaliation.

The two primary bases for this argument is that position statement is inadmissible because it constitutes a settlement communication under Rule 408 of the Federal Rules of Evidence or it is hearsay. In an order issued today, Judge Donald, of the W.D. of Tenn., rejected these arguments. Order Denying Mot in Limine

In a short, to-the-point order, Judge Donald addressed the specifc position statement at issue and held that the position statement did not constitute a settlement communication under Fed. R. Evid. 408.

In addition, addressing the hearsay challenge, Judge Donald held that “position statements cannot be excluded as hearsay as an ‘employer’s position statement in an EEOC proceeding may be admissible to the extent it constitutes an admission, or to show the employer has given inconsistent statements in justifying its challenged decision, which may tend to prove that its stated reasons are pretexts.” (Order at 1-2).

Notably, a position statement submitted by an employer is generally not considered hearsay, but instead is considered an admission by a party opponent, which is admissble at trial under Fed. R. Evid. 801(d)(2)(A) because it is the party’s own statement or Fed. R. Evid. 801(d)(2)(D) because it is a statement by the party’s agent, e.g., attorney. See, e.g., Mugavero v. Arms Acres, Inc., 2009 WL 1904548, *4 (S.D. N.Y. July 1, 2009).

On December 21, 2009, Senior Judge John Nixon (from the Middle District of Tennessee) issued the attached opinion in EEOC and Freeman v. Whirlpool, Case No. 3:06-cv-0593, which involved racial and sexual harassment claims brought under Title VII and 42 U.S.C. 1981. EEOC – Freeman v Whirlpool Mem Order 12-21-09

After determining that the defendant was liable for the racial/sexual hostile work environment experienced by the intervening plaintiff, Judge Nixon awarded the intervening plaintiff total damages in the amount of $1,073,261. Judge Nixon awarded $773,261 in back pay and front pay. He also awarded $300,000 for compensatory damages. Judge Nixon declined to award punitive damages.

Interestingly, with respect to the award of front pay, Judge Nixon found the intervening plaintiff, as a result of the harassment she experienced, suffered from chronic post-traumatic stress disorder rendering the intervening plaintiff unable able to work. Thus, Judge Nixon awarded the intervening plaintiff front pay to her normal retirement age.