Employer Granted Summary Judgment on Claims of Hostile Work Environment by Equal Opportunity Harasser

A federal district court in Alabama granted an employer’s motion for summary judgment regarding a former general manager’s hostile work environment claims.  Thrower v. Yedla Management Co. Plaintiff, a Caucasian female, alleged that during her employment, the Purchasing Manager mistreated her on the basis of gender and race, creating a hostile work environment by excessively questioning her decisions and yelling and cursing at her.  She made complaints to her superior but alleges no action was taken.  Six months into her employment, she was terminated.

Plaintiff was unable to offer any evidence that she was mistreated due to her race or gender.  The record established that her manager treated virtually all coworkers unpleasantly.  As the court noted, “Title VII was never intended to protect employees from all unpleasant and rude conduct in the workplace.”  Because Plaintiff could not establish that male or non-white employees were treated more favorably, the hostile work environment claim was dismissed.

The evidence in this case showed that the manager did not treat Plaintiff differently due to her gender or race.  However, employers should not ignore “equal opportunity harassers.”  Such behavior leads to disgruntled employees who likely will assert claims that employers necessarily have to defend at great expense.

Federal Discrimination Claim Tossed Where Plaintiff Unable to Establish Prima Facie Case

A Louisiana federal district court granted a company’s motion for summary judgment regarding a former employee’s Title VII race discrimination, harassment, and retaliation claims.  Cassimere v. Fastorq LLC. Plaintiff, an African-American male, alleged that during his employment, he was, among other things, issued disciplinary write-ups while non-African American employees were not and that the company retaliated against him for filing an EEOC charge.

The Court dismissed Plaintiff’s claim because he failed to establish a prima facie case of race discrimination.  First, Plaintiff failed to offer evidence that the disciplinary write-ups he received affected the terms and conditions of his employment and therefore failed to establish he suffered an adverse employment action.  Further, instances cited by Plaintiff in his EEOC charge to show preferential treatment of Caucasian employees involved completely different alleged violations of company policy.  Defendant also presented uncontroverted evidence that the four employees cited held different jobs than Plaintiff.  Therefore, Plaintiff was unable to establish that the comparators were similarly situated or treated differently under nearly identical circumstances.

With regard to the retaliation claim, Plaintiff offered only his own conclusory testimony that he was released for filing a complaint.  Even though plaintiff was terminated as part of a reduction in force within months of having asserted his complaint, the court ruled that mere temporal proximity “will not always be enough for a prima facie case.”

Many disgruntled former employees file claims against their former employer that have no basis in fact or law.  Nevertheless, employers must mount a legal defense to these claims — meritorious or not.  In order to be in a position to present the best possible defense it is always recommended that all personnel decisions be supported by legitimate business reasons, and, of course, be documented.


Direct Evidence of Racist Remarks Dooms Employer Motion for Summary Judgment

A federal court in Tennessee denied an employer’s motion for summary judgment on an African-American employee’s race discrimination and hostile work environment claims under Title VII and state law.  The decision was based in large part on the sheer volume of several supervisors’ alleged use of offensive, intimidating remarks.  The record included evidence of frequent use of the “N word” in jokes and stories, a statement that the company hired African Americans during Black History month and fired them for Christmas as well as a pattern of other offensive, and racially derogatory statements by supervisors.  The employee also claimed that he was: (a) denied equal pay raises and promotion opportunities by the same supervisors who made the offensive remarks, and (b) retaliated against after filing a charge with the Equal Employment Opportunity Commission.

Although the employer denied plaintiff’s allegations, the Court ruled there were genuine issues of material fact as to the frequency, content, and volume of alleged discriminatory conduct.  As a result, the Court denied the employer’s motion on the discrimination and harassment claims.

With regard to the retaliation claim, plaintiff pointed to six alleged retaliatory acts taken against him after he filed his EEOC charge, including his first written reprimand, locking him out of the timekeeping system, and harassment so extreme that he was forced to quit.  Viewing the allegations in the light most favorable to plaintiff (as courts do on summary judgment) – including the pattern of offensive supervisory conduct – the court denied the employer’s motion on the retaliation claim permitting the case to go to trial.

This case serves as a reminder that employers must train all supervisors and managers regarding workplace harassment and the liability that can be imposed on the company resulting from their remarks and conduct.

Failure to Accommodate Religious Belief Claim to Move Forward

Religious discrimination claims by a delivery driver for a catering company who was terminated the day after being sent home for wearing a religious head covering survived summary judgment due to the temporal proximity between the events.  In EEOC v. Triangle Catering, LLC, the Western District of North Carolina held that the temporal proximity between the employer telling the driver to remove his religious head covering and his termination the following day created a reasonable inference that the driver’s need for a religious accommodation was a motivating factor in his termination.  Likely, the employer felt blindsides by the worker because the driver, a Rastafarian male, did not wear his religious head covering to his interview.  On his second day of work, he wore the head covering and the co-owner of the employer abruptly asked him to remove it.  The driver advised the co-owner of its religious purpose.  Nevertheless, the co-owner sent the driver home and said she would discuss next steps with the other owner.  The following day, the employer terminated the driver.  The termination notice referred to the “hat situation.”


The Court held that genuine issues of material fact existed regarding the sincerity of the driver’s religious beliefs, as he did not wear the head covering to the interview.  Further, the termination notice described “the confrontational and disrespectful way in which [the driver] handled the hat situation,” but the co-owner testified nothing confrontational or disrespectful occurred.  In addition, the employer argued that accommodating the driver’s religious practice would be an undue hardship because the head covering violated applicable health codes and regulations.  However, in presenting the argument, the employer failed to cite to any health codes or regulations that would be violated.  Thus, the Court found the employer’s argument unavailing. 


This case serves as a reminder that adverse action taken on the heels of protected activity is likely to result in a meritorious retaliation claim.  In addition, documentation should accurately reflect the events as they occurred. 




Second Circuit Holds “Hispanic” Is a Race Under Section 1981 and Title VII

On February 16, 2016, the Second Circuit issued an opinion holding that “Hispanic” is a race for the purposes of both Section 1981[1] and Title VII.[2] Village of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016).  Judge José A. Cabranes, writing for the panel, began by stating that the case “asks us to resolve a vexed and recurring question:  what does it mean to be Hispanic?” Id. at 598.

The facts are these:  Andrew Hardwick was the first black mayor in the Village of Freeport.  As part of his “vision for Freeport,” he wanted to replace the Freeport Police Department’s all-white command staff.  The Freeport Chief of Police position is a civil service position, and to apply, one must take a promotional examination.  Those with the three highest scores were eligible for selection by Mayor Hardwick, who had sole control over the appointment.  The eligible candidates were:  Christopher Barrella, a white Italian-American born in the United States, who had the highest score; Lieutenant Wayne Giglio, also white, who received the second-highest score; and Lieutenant Miguel Bermudez, born in Cuba and self-identified as white, who earned the third-highest score.  Chief Hardwick identified Bermudez as his preferred candidate; the two had known each other for over 25 years.

Barrella believed that he was best qualified, having received a master’s degree in criminal justice and a law degree.  He also had longer “time in rank” as a lieutenant than Bermudez, who had not completed college.  As noted, Barrella was the high scorer on the promotional examination.

Chief Hardwick promoted Bermudez to chief.  He never interviewed Barrella or reviewed Barrella’s application, resume, or personnel file.  Barrella filed a charge with the EEOC, alleging he had not been promoted because of his race (non-Hispanic white) and national origin (American).  After receiving a right-to-sue letter from the EEOC, he sued Hardwick and the Village of Freeport in federal court, alleging, inter alia, violations of section 1981 and Title VII.  The district court denied summary judgment as to all claims except the national-origin discrimination claim.  The case proceeded to a jury trial, and the jury’s verdict was in favor of Barrella, finding that Hardwick had intentionally discriminated against Barrella on the basis of race.  An appeal to the Second Circuit followed.

The Second Circuit rejected the federal government’s position that “Hispanic or Latino” is an ethnicity that could belong to any race.  The Court found this was at odds with both Hispanics themselves and with mainstream media.  Despite this confusion, the Court held that with respect to Section 1981, the existence of “Hispanic” as a race has been well established since the Supreme Court’s decision in Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609 (1987).  Indeed, the Court pointed to its own precedent holding as much, Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (en banc).

Despite this “longstanding clarity,” the Court noted that whether “Hispanic” is a race for purposes of Title VII was a question of first impression.  It also noted that although Title VII and Section 1981 overlap in many ways, they differ significantly in others, such as “statutes of limitations, employers’ respondeat superior liability, the cognizability of claims against individuals (as opposed to organizations), and whether a plaintiff must show that discrimination was intentional.”  814 F.3d at 606 n.37.  The Court identified the question whether “Hispanic” was a race as a question of law inasmuch as it is a question of statutory interpretation.  Despite the differences between the statutes, the Court noted that it analyzes claims of racial discrimination identically under Title VII and Section 1981 and saw no reason to change that analysis with respect to how it defines race in the context of those statutes.  Accordingly, it held that, as with Section 1981, “Hispanic” is a race for purposes of Title VII.

Notwithstanding its legal holding, the Court vacated the district court’s judgment and remanded for a new trial because the district court erred in admitting lay opinion testimony that impermissibly speculated about Mayor Hardwick’s reasons for promoting Bermudez.  Because “[t]he line between legitimate politics and illegitimate racial discrimination can be difficult to draw in practice,” id. at 615, the Court assessed this case as factually close, such that admission of the lay opinion testimony prejudiced defendants, necessitating a new trial.

In sum, the Court rejected defendants’ argument that an employer who promotes a white Hispanic candidate over a white non-Hispanic candidate cannot have engaged in racial discrimination.  This is so regardless of whether the claim is brought under Section 1981 or Title VII.

[1] 42 U.S.C. § 1981.

[2] Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

Employer Commits Willful Violation of Fair Credit Reporting Act By Including Waiver In Statutorily Mandated Disclosure

In Syed v. M-I, LLC, the Ninth Circuit held that including waiver of potential claims language in the same document as the statutorily required Fair Credit and Reporting Act disclosure was a violation of FCRA.  In sum, the Court ruled that the FCRA rights notice cannot be combined with any other notice or agreement.  It must be a stand-alone document. In determining that the violation was “willful,” the Court held that the “ordinary meaning of ‘solely’ is alone; singly or entirely; exclusively.”  As such, the employer’s violation of the Act was willful because “where a party’s action violates an unambiguous statutory requirement, that fact alone may be sufficient to conclude that its violation is reckless, and therefore willful.”  A willful finding is significant because under FCRA, willful violations allow for the recovery of fines, punitive damages, and attorney’s fees, while negligent violations permit only actual damages

In this instance, an applicant applied for a position and, as part of the application process, he completed a document entitled “Pre-Employment Disclosure Release.” Unlike the “sample” form, this one incorporated language simultaneously authorizing the employer to obtain a consumer report and also releasing potential claims under FCRA.  Soon after signing it, the applicant commenced a putative class action alleging that inclusion of the liability waiver in the same document as the disclosure statement violated FCRA which requires, among other things, that the disclosure document consist “solely” of the disclosure.

Although this case is controlling only in the Ninth Circuit (covering Alaska, Arizona, California and Hawaii), all employers who perform background checks should carefully review their FCRA disclosure forms to ensure they include only the statutorily required disclosure and permitted authorization form.  Inclusion of any other language, as held in Syed, could be deemed a willful violation of FCRA.

Age Discrimination Claims Valid When Both Candidates Over 40

In Irvin v. Ascension Parish School Board, the United States District Court for the Middle District of Louisiana denied Defendant’s motion for summary dismissal of a claim under the Age Discrimination in Employment Act (“ADEA”).  In Irvin, Plaintiff alleged that her employer failed to promote her on account of her age (58) and instead selected a younger candidate for the position (50 years of age). The employer contended that the other candidate was better qualified and that age was not a factor in its decision.  The employer also argued that age discrimination was not possible since both candidates were nearly the same age and both were protected class members under the ADEA.

The ADEA prohibits age discrimination against people who are 40 years of age or older. To establish a prima facie age discrimination claim, Plaintiff must show: (1) she was at least 40 years old; (2) she was not selected for a position; (3) she was qualified for the position; and (4) either someone “substantially younger” was hired or she was otherwise turned down because of her age.  Satisfied that Plaintiff easily met the first three categories, the Court analyzed the third, ultimately finding that the candidate selected was “substantially younger” than Plaintiff.  While the Court did not set a bright-line rule defining “substantially younger,” a difference of 8.25 years met the threshold for this Court when considering a motion for summary judgment.  The Court found it non-determinative that both candidates were over 40 and therefore both protected class members under the ADEA.

This decision highlights that a plaintiff can sustain an age discrimination claim even when both candidates are over 40 years old. While courts are split on the issue, employers should ensure that they rely on objective factors unrelated to age when making personnel decisions.

Fifth Circuit Permits Emotional Distress Damages for FLSA Retaliation Claim

Employees asserting a claim for retaliation under the FLSA are entitled to seek emotional distress damages, according to a recent decision by the United States Court of Appeals for the Fifth Circuit.

In Pineda v. JTCH Apartment, LLC, Plaintiff claimed that he was retaliated against by his former employer after he filed a lawsuit seeking allegedly unpaid overtime wages.  Although Pineda put on evidence of his purported emotional distress (including testimony about marital discord, sleepless nights and anxiety), the District Court refused to instruct the jury that they could award emotional distress damages for Pineda’s FLSA retaliation claim.  Pineda ultimately prevailed on his retaliation claim.

On appeal, the Fifth Circuit held that emotional distress damages are available in FLSA retaliation cases, and that the District Court erred by not instructing the jury to consider whether Pineda was entitled to such relief.  While the Court acknowledged that the FLSA does not provide explicitly for emotional distress damages, it noted that the statute’s anti-retaliation provision allows for “such legal or equitable relief as may be appropriate” and that this “expansive language . . . should be read to include the compensation for emotional distress . . .”

The Fifth Circuit is now the third Circuit Court (joining both the Sixth and the Seventh Circuits) to hold that emotional distress damages are available in FLSA retaliation cases.  The issue is unresolved in other circuits, although the First, Eighth, Ninth and Eleventh Circuits have all maintained awards of emotional distress damages in FLSA retaliation cases, without deciding whether such damages were appropriate.

This case illustrates the courts’ readiness to award appropriate damages for acts of retaliation. Employers are encouraged to train managers to be cautious in taking action against employees who have asserted statutory rights.

Evidence That Younger Employees Violated Company Policy Without Consequences Results in Denial of Summary Judgment

In light of evidence that younger employees committed similar infractions as the plaintiff, and did not suffer significant disciplinary action, an Illinois federal district court denied an employer’s summary judgment motion. The Court ruled that evidence of disparate treatment plus age-based comments by management was sufficient to create a fact issue as to whether the plaintiff’s age was the but-for cause of termination. Wyman v. Evgeros, Inc. (N.D. Ill. Jan. 27, 2017).


In Wyman, the plaintiff, worked morning shifts prior to undergoing surgery. Following post-surgery recovery, she asked to resume morning shift. Her request was denied by the employer which, citing business needs, placed her on an afternoon schedule. Although the parties disputed whether the plaintiff knew she had to work these shifts, it was undisputed that the plaintiff missed three afternoon shifts – a violation of company policy. As a result, the employer terminated her employment.


Although compliance with Company policy ordinarily is a nondiscriminatory reason for termination, the court found that similarly situated younger employees committed different but seemingly similar infractions but were not terminated. Specifically, younger employees allegedly arrived at work intoxicated; arrived late for work; and exposed their tattoos, all in violation of company policy. None failed to report for work on three days. Despite that significant difference, and finding that a reasonable fact-finder could conclude that the employer’s “legitimate expectations were disparately applied,” the court found this evidence sufficient to permit an inference of discriminatory intent. Furthermore, the plaintiff presented evidence that the restaurant’s shareholder and her son made disparaging comments about elderly people. After considering these statements in conjunction with the employer’s alleged differential treatment of younger employees, the court reserved for trial whether age was the but-for cause of her termination.


This decision serves as a reminder to employers of the importance of ensuring consistent application of the spirit of company work rules. Distinctions based upon factual differences may not be enough where the seriousness of the violations are similar, at least says this court. Regularly scheduled management training can help reduce such incidents that create liability to the company.


Kansas City Region Offices: Kansas City, Missouri and Overland Park, Kansas

Jackson Lewis’ maintains two offices in the Kansas City Region, with a total of nine attorneys. The Overland Park, Kansas office opened in 2014. The Kansas City, Missouri offices opened in 2017. The offices are led by Office Managing Principal Brian J. Christensen. The nine attorney team includes members of the firm’s class action and complex litigation practice group, as well as corporate diversity counseling, disability, leave and health management, employee benefits, general employment litigation, labor and preventive practices, and wage hour practice groups.

Attorneys in Kansas City area offices are included on the 2017 Best Lawyers list and are rated in Martindale-Hubbell as well as Super Lawyers. Our Kansas City region offices recently received high honors when they were recognized by U.S. News and World Report and Best Lawyers in America as Tier 1 National 2017 Law Firm of the Year in three practice areas: Employment Law – Management; Labor Law – Management; and Litigation – Labor and Employment.

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