Monthly Archives: May 2014

Supreme Court Reinforces Summary Judgment Standard in Section 1983, Qualified Immunity Context

From the United States Supreme Court this week comes a case that makes you scratch your head wondering why justice took so long to arrive for ordinary citizens. Imagine you are in your home after midnight on New Year’s Day when you hear a commotion outside your door. You open the door to find your teenage son lying on the porch and a police officer standing over him with his gun drawn. The officer tells you your son stole the car parked in front of your house, an obvious misunderstanding because you own the car. You tell the officer that the allegedly stolen car belongs to you.

Two more officers arrive on the scene. The first officer tells your wife to stand against the garage door. When she objects the officer, according to your family, grabs her arm and slams her against the garage door. When your son tells the officer to get his hands off his mother, the officer fires three shots. A bullet collapses your son’s right lung and pierces his liver, thus ending his promising professional baseball career and an injury that causes your son pain on a daily basis.

Now imagine that the trial court judge and two of three court of appeals judges decide that the officer was acting in the course of duty and is immune from being sued for his actions. How would you feel about that?

Fortunately, the United States Supreme Court breathed life back into the case and given the family its day in court. In a per curiam opinion with Justices Scalia and Alito offering a separate concurring opinion, the Court vacated the court of appeals’ decision in this Section 1983 case. The Court reiterated the legal principles that guide a court’s analysis of a state actor’s defense of qualified immunity, a doctrine that “balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 129 S.Ct. 808, 815 (2009). When evaluating the qualified immunity defense on summary judgment, courts must first determine whether there is evidence that the defendant’s conduct violated a federal constitutional right. This inquiry necessarily requires a balancing between the nature and quality of the intrusion on the plaintiff’s constitutional rights against the importance of the governmental interest justifying the intrusion. Here, the constitutional right at issue was the Fourth Amendment’s guarantee of freedom from unreasonable searches and seizures. The governmental interest was the officer’s right to protect himself. Next, courts must decide whether the right was clearly established at the time of the alleged violation. Officers cannot be liable when the right’s contours are murky or have not been defined or established by the courts.

The high Court did not decide that the officer is liable for his actions. Instead, the court decided the case based on the straightforward procedural rule that when deciding a motion for summary judgment a court must view the evidence in a light most favorable to the party opposing the motion. The Court recognized several factual disputes arising from the evidence presented by the parties, all of which focused on whether the officer acted in a reasonable manner under all of the surrounding circumstances, and whether he had a reasonable belief that he needed to protect himself. Genuine issues of material fact arose from contradictory evidence offered by the parties — whether the porch was dimly lit, whether the victim’s mother acted out of control, whether the victim rose to feet to protect his mother or whether he merely rose to his knees from off the ground. In the end, the Court decided that these and other factual disputes precluded summary judgment.

The case will now go back to the trial court for further proceedings. You can read the Supreme Court’s opinion here: Tolan v. Cotton, 572 U.S. ___ (May 5, 2014).

Seventh Circuit Rejects National Origin Discrimination Claim

Plaintiff Cung Hnin is of Chin ethnicity from the country of Myanmar. He began working for defendant TOA (USA) LLC on the production floor in 2007 at TOA’s automobile metal stamping plant . A female co-worker, Brock, reported to management that Hnin was making comments and gestures suggesting she was having a sexual relationship with a male co-worker. Although not acknowledged in the court’s opinion, the harassment was probably not severe or pervasive enough to give rise to a claim for unlawful sexual harassment. Nevertheless, whenever a co-worker complains about harassment on the basis of sex, the employer has a legal obligation to investigate and take prompt remedial action. Many companies faced with such complaints deal with it by terminating the offending employee. Such was the the case here. The company investigated by interviewing witnesses who supported her report. The company also interviewed Hnin. He denied the allegations. The company terminated his employment on the spot during the interview, perhaps because he raised his voice and became angry, which corroborated reports of other witnesses that he was a bully.

Hnin sued the company for national origin discrimination. His claim failed because he had no evidence that similarly-situated American born employees had been treated more favorably than he was. All but one of these comparators had not been accused of sex harassment. The remaining comparator was terminated one day after his interview, which did not logically equate to more favorable treatment than Hnin, who was terminated during his interview.

The employee accused of sexual harassment often faces the cruel reality that if terminated there is little that can be done to reverse the decision. It should have been apparent to Hnin’s lawyer that rather than litigating through the summary judgment stage the best course of action was to negotiate improvement to Hnin’s personnel file, such as treatment of his separation from employment as a resignation, agreement to a neutral (or positive) reference when prospective employers made contact, a non-disparagement provision, and then perhaps a severance payment. This outcome is far better than litigating a weak case and seeing it dismissed on summary judgment.

Boston Police Department’s Use of Hair Samples to Drug-Test Might Discriminate Against African-Americans

This week we get a “hairy” case from the United States Court of Appeals for the First Circuit. African-American former Boston police officers, a former cadet and others who tested positive for cocaine use claimed that the department’s use of hair samples to test for drug use had a disparate impact on blacks. The plaintiffs denied any use of illegal drugs and argued that hair common to many blacks resulted in false-positives. The trial court granted summary judgment to the department, but the court of appeals reinstated the case.

Disparate impact cases do not require a showing that the employer intentionally discriminated. The legal theory underlying disparate impact is that a specific employment practice has greater impact on the protected class. Statistical analysis is usually required to establish these claims. The plaintiffs presented statistical evidence that the results of hair sample testing over an 8-year period were not due to random chance, meaning that the use of hair samples could be the factor that caused more blacks than whites to appear to be using illegal drugs.

The court of appeals ultimately sent the case back to the trial court to finish what remained of the legal analysis. All the court of appeals did was decide that plaintiffs had presented a prima facie case of disparate impact discrimination. On remand, the trial court will have to determine whether the department’s drug-testing program advances its legitimate goal of weeding out illegal drug users, and then whether plaintiffs have proved the department’s failure to adopt an available alternative method of testing that advances the legitimate goal and reduces the disparate impact on blacks. Jones v. City of Boston, Case No. 12-2280 (1st Cir., May 7, 2014).

Walgreens Assistant Store Manager, 58, Loses Age Discrimination Case

In a rather straightforward application of employment law analysis, the United States First Circuit Court of Appeals decided that a former Walgreens manager had not presented sufficient evidence of age discrimination for his case to proceed to trial. Manager Adamson was written up for poor customer service on two occasions. For the prior three years on the job his record was clean. The first write-up resulted from a customer complaint that no one was available to take a product return. Adamson was in the stockroom, knew he was needed up front but decided to finish what he was doing in the back of the store. In response to the write-up he acknowledged that he used poor judgment. Moral of that short story, if you’re a manager and a customer needs you up front, go up front and take care of the customer. The customer always comes first. Adamson momentarily at least forgot that golden rule. He received a final written warning.

Not quite four months later, Adamson forgot that rule again. He was in the back office trying to contact an employee who did not show up for work. No one was up front just after the store opened. Another customer entered the store to make a return. Adamson appeared shortly after the disgruntled customer left the store. Video recordings confirmed the event. Adamson’s second lapse resulted in his termination. The district court (the first level trial court) granted Walgreens summary judgment.

The appeals court’s decision is a study in applying the proper legal framework to a discrimination claim. When a plaintiff lacks direct evidence of discrimination (e.g., a supervisor’s comment such as “We’re letting you go because you’re too old to do the job,” which is rare), courts use the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In an age discrimination case, the first stage of this framework requires the employee to establish a “prima facie” case by producing evidence that shows: (1) he was at least forty years old when he was fired; (2) his job performance met the employer’s legitimate expectations; (3) he suffered an adverse employment action such as a firing; and (4) the employer filled the position, thereby showing a continuing need for the services that he had been rendering.” [Note: The fourth step of the prima facie case differs among the federal circuit courts somewhat, as well in state courts. In Ohio’s state and federal courts, the replacement prong requires a showing that a substantially younger employee replaced the plaintiff, not just that the plaintiff was replaced.] Presenting evidence for all four steps gives rise to a rebuttable presumption of discrimination and shifts the burden of production — but not the burden of persuasion — to the employer to articulate a legitimate, non-discriminatory reason for its decision. If the employer meets this burden, the focus shifts back to the plaintiff, who must then show, by a preponderance of the evidence, that the employer’s articulated reason for the adverse employment action is pretextual and that the true reason for the adverse action is discriminatory.

Walgreens disputed the second element, arguing that Adamson failed to meet the company’s legitimate expectations. The courts of appeals assumed that Adamson had satisfied this element because the main dispute was whether Walgreens’ stated reason for its termination decision was the real reason or whether it was a pretext for discrimination. As is almost always the case, the court found that Walgreens had stated a legitimate basis for termination. The court then analyzed plaintiff’s evidence of pretext and rejected all of it. Adamson pointed a factual dispute about how long the second customer was kept waiting. The important point for the court was not the amount of time the customer waited, but that Adamson left the front of the store after the doors had opened with no coverage up front. Adamson presented no evidence that the length of time he was in the back of the store played a part in the termination decision.

Sometimes the best evidence of pretext is that the employer did not uniformly apply its policies and procedures between members and non-members of the protected class. Adamson pointed to younger employees who had not been fired for poor customer service, but the evidence failed to show pretext because they had not had two occurrences whereas Adamson was fired for his second occurrence of poor customer service.

This case serves as a reminder that discrimination cases are often won or lost at the pretext stage. I have learned over the years that the critical junction of the case is when the decision-makers — the persons involved in the termination or other adverse employment action — are interrogated at deposition. This is the best and perhaps only opportunity to gather evidence to establish a question of fact regarding pretext. If such evidence is obtained and presented to the court in response to the employer’s motion for summary judgment, the court should deny the motion. And that’s when good things can happen, because the employer then knows that it will have to go to trial where it can actually lose the case. Case values rise after denial of summary judgment and settlement becomes a real possibility. This is not to say that trial should be avoided. Rather, it’s recognition that trials present lots of uncertainty and that yes, you as the plaintiff can lose too. Of course, I think I can win any case at trial, which is a trait to be valued in a lawyer. But I have learned over the course of four decades of litigation and trial work that a client needs to understand the realities of a courtroom foray. Sometimes settling for less than everything you want is the best course. In the end, though, the client makes the decision based on the advice of counsel.

You can read the full case decision here.

Law Firm Discrimination Study Finds Confirmation Bias.

According to a just released study, law partners graded the same writing sample based at least in part on the race of the writer. The study published by the consulting firm Nextions, “Written in Black and White: Exploring Confirmation Bias in Racialized Perception of Writing Skills,” used perhaps a somewhat flawed methodology. and does not purport to have statistical significance. On its face, though, the study does seem to confirm “confirmation bias,” which it describes as “[a] mental shortcut – a bias – engaged by the brain that makes one actively seek information, interpretation and memory to only observe and absorb that which affirms established beliefs while missing data that contradicts established beliefs.”

Five partners from five different law firms wrote a legal research paper supposedly prepared by two, third year litigation department associates. To it were added spelling or grammar mistakes and substantive technical writing errors. The memo was distributed to sixty law firm partners at twenty-two different law firms who had been told they were part of a writing analysis study. Twenty-one were members of a racial/ethnic minority and thirty-nine were Caucasian. Everyone received the exact same memorandum to analyze

This is where it gets interesting. Fifty percent of the partners received a memo written by a “Thomas Meyer,” a white graduate of New York University. The other half were informed that the author was “Thomas Meyer,” a black graduate from the same school. The reviewers also received identical research material supporting the memorandum.

The black Thomas Meyer averaged a 3.2/5.0 rating whereas the white Thomas Meyer averaged a 4.1/5.0 rating. Reviewer comments were consistently more positive for the white Thomas Meyer. For example, reviewers of the supposedly white=written memorandum made comments like “generally good writer,” “has potential” and “good analytic skills.” Comments for the black Mr. Meyer included “needs lots of work,” “average at best” and “can’t believe he went to NYU.”

Sure, the methodology of the study can be criticized, but the results are reality based. Racism exists. The results might not confirm outright racial animus. They do highlight confirmation bias in writing skills; in other words, a bias that makes one look for information that affirms established beliefs while glossing over data that contradicts them — confirmation bias.

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