CalEmployeeRights

Study Evaluates Litigants Performance in Valuing a Case for Settlement

    Ever wonder how well plaintiffs and defendants judge possible outcomes in their cases when evaluating settlement?  Well the recent article, “Let’s Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations,” which appears in Journal of Empirical Legal Studies, discusses this topic. 

More Schroer Information

     As promised, here are some additional links and some additional information on the ruling in Schroer v. Library of Congress.

     A very full analysis of the opinion and the course the case took on its path to finally reaching a verdict can be found here.  Additionally, this blog entry contains an analysis of the ruling and how Judge James Robertson carefully crafted and supported his opinion in this case.  The full text of the Court's opinion is available here.  The interesting thing to note is how the Court found for Schroer both on the sex stereotypes theory discussed below, and even more importantly found that discrimination on the basis of gender identity is sex discrimination.

     A more general overview can be found in this CNN story or in this story.     

     Finally, if you are interested in this topic or the general topic of how 9th Circuit Courts view the "because of sex" language in Title VII sex stereotyping cases, I recommend reading two cases cited by Schroer in support of her position: Rene v. MGM Grand Hotel, Inc., (9th Cir. 2002) 305 F.3d 1061 and Nichols v. Azteca Rest. Enters., Inc., (9th Cir. 2001) 256 F.3d 864.  Both cases find that the Title VII's "because of sex" language protected homosexual male plaintiff's who were harassed because they failed to fit into gender stereotypes. 

     Based on these prior Ninth Circuit rulings, it's my gut feeling that even prior to the ruling in Schorer, the Ninth Circuit would have found that Title VII protected transgender plaintiffs under sex stereotyping theories as the Sixth Circuit did in Smith v. Salem (6th Cir. 2004) 378 F.3d 566.

    I'm quite sure that the government will appeal the ruling in Schroer so this issue is far from closed, but at least in the meantime, this gives plaintiffs more ammunition under Title VII.

     --Michael Sachs

Court Finds For Plaintiff In Transgender Discrimination Case

     Just in time for your weekend.  The Court in the Schroer v. Liabrary of Congress finally reached a verdict, finding for the plaintiff.  The court ruled that the Library of Congress illegally discriminated against Schroer when she was denied a job after disclosing her intention to transition from male to female. 

     As it had with the Library's previous motion to dismiss, the Court found that discriminating against someone for changing gender is "sex discrimination" under Title VII.  Interestingly, the Court analogized this to religious discrimination, saying, "Imagine that an employee is fired because she converts from Christianity to Judaism.  Imagine too that her employer testified that he harbors no bias toward either Christians or Jews but only 'converts.' That would be a clear case of discrimination 'because of religion.' No Court would take seriously the notion that 'converts' are not covered by the statute."

     The ACLU's press release is available here.  I'm sure there will be a large amount of coverage on this case, so I'll follow up with some links as they become available and I'll include a discussion of how California has treated cases under Title VII. 

     My previous blog entries about this case are available here and here and here. 

     --Michael Sachs

Jury Awards Plaintiff $1.3 Million Total Damages In Retaliation Claim

     A California jury awarded Jane Mootz $800,000 in non-economic damages for retaliation she suffered at the hands of her employer the California Department of Corrections and Rehabilitation.  

Congress Expands ADA’s Coverage, Overriding U.S. Supreme Court Decisions

       Congress passed a bill, S. 3406, amending the Americans with Disabilities Act (“ADA”), reversing several U.S. Supreme Court decisions and enhancing anti-discrimination laws in employment for individuals with disabilities. The bill was a two-year bipartisan effort in response to a litany of federal cases that precluded many disabled employees from the protections intended by Congress in enacting the ADA.

       Due to several federal courts' narrow construction of what an individual with a disability entails, many employees with conditions like diabetes, epilepsy or other illnesses that can be controlled by medication or other means were denied coverage under the ADA. One of the major changes to the ADA now prevents mitigating cirumstances like medication, prosthesis or other measures from being considered in determining whether an individual may be categorized as disabled. This amendment reverses the Supreme Court decision in Sutton v. United Air Lines, Inc. (1999) 527 U.S. 471.

Independent Contractor vs. Employee- At-Will Agreement Not Determinative

     An important preliminary question in employment cases is: Is the plaintiff an employee or an independent contractor?  This question is important because it determines what rights the plaintiff has.  For example, an independent contractor cannot bring a cause of action for wrongful termination in violation of public policy, while an employee can. 

     The primary way to differentiate between an employee and an independent contractor is based upon control.  An employer has the right to control the manner and means by which an employee accomplishes the result desired.  On the other hand, the independent contractor follows the employer’s desires as to the work to be accomplished, but can accomplish this work in whatever manner he or she desires. 

Expert Costs do not have to be Claimed within 15 days in a FEHA case

     When a plaintiff succeeds on a claim under the Fair Employment Housing Act (FEHA) , the court in its discretion may award the plaintiff attorneys fees and expert costs.  (Government Code § 12965(b)).  The question that was put to the Court in Anthony v. City of Los Angeles (2008) ___ Cal.App.4th ___ (B202457) was: Must the plaintiff claim expert costs within 15 days of the entry of judgment?  There, the Court said no.
    
     In Anthony, the Court held that because these costs are discretionary, it make no sense for the plaintiff to claim them as part of its standard costs memorandum under California Rules of Court, rule 3.1700, which makes the granting of certain trial costs obligatory.

     Instead, the Court held that expert costs should be claimed at the same time attorneys’ fees are claimed.  That way, the Court can address both of these discretionary ideas at the same time.  Thus, the Court in Anthony held that a claim of expert costs made 25 days after the entry of judgment, was timely.

    The second issue discussed in Anthony was the defendant’s claim that a court only had discretion to award expert costs for experts the court itself appointed, not for experts the plaintiff retained on his own.  The Court quickly dispatched this argument relying on Government Code § 12965(b) and Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, for the position that the Court does in fact have discretion to award expert costs for experts not appointed by the Court. 

     --Michael Sachs

Direct Evidence of Age Animus Not Enough To Show Decision Makers Were Influenced

       In a 2-1 unpublished decision, in Adam v. Kempthorne (9th Cir. 2008) 04-17458, the Ninth Circuit upheld the lower court's decision rejecting plaintiff scientists' Age Discrimination in Employment Act ("ADEA") and other federal claims against the U.S. Geological Survey ("USGS") where direct evidence of age-based animus permeated the work environment.  Some of the evidence from the record included the following:

* The Director of the USGS, Dr. Gordon Eaton, asking an audience, "What is the difference between Jurassic Park and the Geological Division of the Geologic Survey?"and responding with the answer, "One is an amusement park filled with dinosaurs and the other is a movie."

* A poster about a meeting to discuss the USGS' workforce reduction with a cartoon caption stating "You gotta help me, Mom...This assignment is due tomorrow, and Gramps doesn't understand the new tricks." Click on the graphic to the right to see this poster.

* A 1993 official report explaining the USGS' "Vision for the 21st Century" describing that "[s]ome segments of the USGS currently are suffering from an aging, high-grade workforce", which is "a critical problem that must be addressed...."

EEOC can Continue to Investigate after Issuing a "Right-to-Sue" Letter

     In EEOC v. Federal Express Corporation (9th Cir. 2008) ___F.3d_____ (06-16864), the 9th Circuit held that even after the EEOC issues a right to sue letter and the individual commences a civil action, the EEOC retains the right to perform an investigation, including the issuing of subpoenas. 

     Briefly, Tyrone Merritt, a minority employee of FedEx, discovered that a cognitive test FedEx required its employees to pass prior to promotion, had a statistically significant adverse impact on African Americans and Latinos.  Merritt than filed a charge with the EEOC on behalf of himself and other similarly situated African American and Latino employees.  Upon Merritt’s request, the EEOC issued him a right-to-sue letter.  Merritt then joined a class of plaintiffs suing FedEx.

     Despite issuing the right-to-sue letter, the EEOC continued to investigate the matter.  Almost five months after Merritt joined the class action, the EEOC issued and served a subpoena on FedEx requesting information about the computer files it maintains.  FedEx refused to comply and the EEOC filed an action in district court.  FedEx argued that because Merritt had already instigated an action, the EEOC was divested of authority to investigate and issue subpoenas.  The district court disagreed, finding that the EEOC still had jurisdiction to conduct an investigation.  FedEx appealed.

   The 9th Circuit agreed with the district court and found the subpoena enforceable.  Title VII, 42 U.S.C. § 2000e-5(b), grants the EEOC the authority to investigate and remedy complaints of discrimination.  The Court reasoned that while the EEOC usually stops its investigation when it issues a right-to-sue letter, it is not required to, especially when rights of others are involved.  In fact the EEOC’s own polices state that it should ordinarily continue to investigate when the charge covers people other than just the requester. 

   This was the first time this issue had been addressed before the 9th Circuit.  But, the 5th Circuit had previously addressed this issue in the case of EEOC v. Hearst Corp., (5th Circ. 1997) 103 F.3d 462.  In that case, the 5th Circuit ruled that when the requesting party receives a right-to-sue letter and is engaged in a civil action, that charge no longer provides a basis for EEOC investigation. 

   Thus, there is now a conflict between the two circuits, with the 9th Circuit taking the view more beneficial to the EEOC and therefore the employee as well.

     --Michael Sachs

Still Waiting on Verdict in Schroer- Some Additional Information

     While we are still waiting to hear the verdict in the Diane Schroer case (discussed previously in this blog here and here), here is the plaintiff’s post-trial brief.  This brief walks step by step through the plaintiff’s argument of why the court should find her discrimination actionable.  Its well written statement of the law and lays out some of the facts that were presented during the trial.

     --Michael Sachs