November 2007 - General Employment Law - Fed. Ct.

Chadwick v. Wellpoint, Inc.
__F.Supp.__, 07/24/2007
HORNBY

In sex discrimination claim, female plaintiff is not precluded from proving discrimination when promotion sought was awarded to another female.

The Court holds that under discrimination law, if the employer promotes the member of one protected class over another, the passed-over member can still prove that they were discriminated against based on their protected status.

The female plaintiff had applied for a promotion at work. Female managers denied her the position, claiming that she had "too much on her plate" as she was in college and had four children at home. The employee filed a complaint of sex discrimination in which she did not allege the sex of the person given the promotion. In its motion to dismiss, the employer indicated that it had hired another woman, a mother of two children slightly older than plaintiff's. Implicitly, the employer alleged that the plaintiff's complaint was defective because she failed to include this fact. The plaintiff agreed that she knew a woman had been hired but not that she also had children, and she argued that she was not required in her pleading to indicate the sex of the person who replaced her.

The Court , following the First Circuit Court of Appeals, stated that to make a prima facie case of Title IV discrimination, a plaintiff does not have to plead that the employer hired someone outside the protected class, Cumpiano v. Banco Santander Puerto Rico (902 F.2d 148, 1st. Cir.1990). The Court then found that the plaintiff's complaint was adequately pled, including providing "sufficient detail" of statements by management.

The Court further found that it was not appropriate to convert the motion to dismiss into one for summary judgment as the plaintiff had presented enough evidence to create an inference of discrimination. The issue in a sex discrimination case is whether an equivalent person of the opposite sex would have been treated differently. Or, would the employer here have promoted a male employee with the same number and age of children as the female plaintiff?

The employer argued that the plaintiff's claim failed completely because another female with children had received the promotion. The Court stated that though it was relevant to the case that a female with older and fewer children than the plaintiff had received the promotion, it was not dispositive. There was also evidence that the employer had told the employee, who had four children, that she had "too much on her plate," while the plaintiff alleged that she had superior qualifications to the woman promoted.

The gender of the person promoted was thus not the only evidence of discrimination. As the U.S. Supreme Court stated in an age discrimination case, for example, the fact that the complainant had "lost out to another person in the protected class" did not matter as long as the complainant lost out "because of his age," O'Connor v. Consolidated Coin Caterers Corp. (517 U.S. 308, 1996).

Warren v. United Parcel Service. Inc.
__F.Supp.__, 06/15/2007
HORNBY

Disability discrimination found where employer required employee driver to obtain DOT certification for a particular route when no such certification is required.

Interest on back pay applied only from date of notice of discrimination, as otherwise it would be punitive.

A jury found the employer guilty of disability discrimination under the Maine Human Rights Act because it required the employee to have DOT certification to drive a particular route for which such certification is not required, while the employee could not obtain such certification because of a medical history of epilepsy. The jury awarded the employee $74,155.99 in back pay, and the Court proceeded to determine prejudgment interest, reinstatement, front pay and equitable relief.

The Court first affirmed the back pay amount. Judge Hornby stated that plaintiffs must prove their damages but not with "absolute precision." At trial, the employee had estimated, based on his customary number of work hours and overtime as the most senior driver, that he lost between $66,000 and $72,000 after being removed from that particular route. The jury also considered evidence of what every person at the employee's facility earned in regular and overtime hours.

The employer argued that the jury's award was speculative and excessive claiming that if the employee had received the requested route he would not make it back to the facility in time to get overtime. The Court disagreed, stating that to buttress this argument UPS should have shown what the current driver on the route makes and the amount of overtime a more senior driver like the plaintiff could have earned, but it had not.

The Court also awarded discretionary prejudgment interest but found that it should be partially waived due to the nature of the back pay award. When the employee filed his claim, he had been denied his desired route for one month, while the jury's verdict was rendered more than two years later. The Court noted that back pay is a compensatory damage to restore the plaintiff to where he would have been without the discrimination. If he had the desired job, he would have been paid weekly, not in a lump sum from the date the employer received his claim. The Court therefore held that interest only applied to compensation he had received after this notice of discrimination; otherwise, the interest would be punitive.

Regarding reinstatement to a particular route, UPS admitted that this relief was not impracticable or impossible but should be denied for safety reasons because of the patient's epilepsy. The Court stated that under disability discrimination law, the employee must be restored to his position unless the employer has "legal reasons to take him off the job." Maine law does not prohibit individuals with seizure disorders from operating motor vehicles, while federal laws apply only to vehicles above the weight of those which the plaintiff would be driving. The employer did not find that the employee failed any existing safety standards and the Court would not permit it to apply special standards to the plaintiff.

The Court thus held that the employer cannot impose certification requirements that do not exist in law upon the employee. It added that this decision accords with current laws only and does not address whether or not it is safe for the employee to drive. The Court also denied the plaintiff's request to have the employer create written protocols to deal with similar employees who are disabled under Maine law and cannot obtain DOT certification. The Court noted that UPS operates in many jurisdictions and its actions here were not so egregious as to warrant such judicial intervention.

The Court added that plaintiff is one of those employees whose claim was made easier by Whitney v. Wal-Mart Stores, Inc. (895 A.2d 309, Me.2006), which held that to prove a disability under the MHRA one does not need to show a substantial limitation on a major life activity. In response to this successful lawsuit, the Court expected that the employer would voluntarily take remedial steps to avoid such claims in the future.

The Court also awarded front pay from the date of the jury award until the date of reinstatement.

Harding v. Cianbro Corp.
__F.Supp.__, 05/02/2007
WOODCOCK

Following jury verdict that included back pay and reinstatement, Court had authority to award lost wages from the date of the jury's verdict to the date of reinstatement.

A jury returned a verdict for the employee, including $563,000 in back pay to the date of the verdict, in a disability termination suit on August 22, 2006. The employee then petitioned the Court for front pay or reinstatement. The Court ordered reinstatement on January 1, 2007 and the employee returned to work on February 20, 2007. The employee then filed for reconsideration of lost wages between the August 2006 date of the jury verdict and his February 2007 return to work.

The Court agreed that there is occasionally a significant time lag between a verdict and the judgment. It found that since the plaintiff was awarded back pay to the date of the verdict and the Court then ordered reinstatement, and he had not shown full recovery or higher post injury wages in this interim, he was entitled to lost wages from the verdict to the date of reinstatement.

The Court denied the employer's four objections to this award. It first held that the employee did not have to rely on newly discovered evidence or a manifest error of law by the court to move for reconsideration, because the denial of a remedy here would contradict a court's obligation to make the employee whole.

The Court also rejected the employer's arguments that: (1) the employee was requesting relief for a period prior to the date of judgment, and thus it should be considered as back pay and not front pay; (2) the Court has no authority to grant back pay or alter the amount of back pay awarded by the jury; and (3) the employee failed to move to set aside the verdict so must accept the jury's back pay award.

As the First Circuit has indicated, juries decide back pay issues when deciding liability and compensatory damages, while district judges determine front pay awards. The Court stated that front and back pay distinctions "are not as precise" as the employer believes, with the First Circuit indicating that back pay is the period between the time of discharge and court judgment and front pay the period between judgment and reinstatement, with the possibility of a gap between the verdict and judgment. Judge Woodcock stated that if the distinction were as fine as the employer wished, "courts would become hopelessly entangled in definitional subtleties at the expense of their overriding obligation to make the employee whole." It was good sense for the parties here to leave front pay and reinstatement issues until after the verdict, since front pay may not be an issue if a back pay award is finite or there is no verdict for the plaintiff. It also allows counsel to concentrate on the case before the jury, leaving front pay and reinstatement to be considered afterwards "in the dispassionate light of time."

Judge Woodcock stated that the Court has the authority to order recovery, whether it is deemed back or front pay, for periods of time that the jury could not anticipate. Thus, it pro-rated the award here to compensate for wages lost from the date of the verdict to the employee's reinstatement, approximately six months later. The Court then computed the award on a per diem basis.