Wednesday, August 24, 2016

7th Circuit Allows Ethnicity Discrimination Case to Move Forward, Addresses "Indirect" vs "Direct" Methods of Proof in Employment Law Cases

In a very important case out of the Court of Appeals for the 7th Circuit, the Court reversed and remanded an ethnic discrimination case filed under 42 U.S.C. §1981 and accompanying Illinois state law, and also took time and effort to address the "direct" and "indirect" methods of proofs courts often use in employment discrimination cases.

In granting summary judgment in favor of the employer, the 7th Circuit noted that the lower district court assigned admissions of culpability and smoking-gun evidence to the "direct" method (the judge found no such evidence in the case) and assigned suspicious circumstances that might allow an inference of discrimination to the "indirect" method.  The Court noted that the lower court, "did not try to aggregate the possibilities to find an overall likelihood of discrimination."  The 7th Circuit also noted that the district court treated each method as "having its own elements and rules, even though we have held that they are just means to consider whether one fact (here, ethnicity) caused another (here, discharge) and therefore are not 'elements' of any claim."  Instead of pursuing a unified inquiry, the district court elaborated by saying the plaintiff could prevail only by coming up with "evidence that creates a 'convincing mosaic of discrimination'".  The district court concluded that the plaintiff failed to present a "convincing mosaic" under the direct method because the racial slurs did not have anything to do with the plaintiff's discharge and that there wasn't enough of a "mosaic" under the indirect method because, by removing his name from the records and changing the rates, he fell short of the employer's expectations.

In rejecting the district court's approach, the 7th Circuit noted that looking for a "convincing mosaic" detracted attention from the sole question that matters:  Whether a reasonable juror could conclude that the plaintiff would have kept his job if he had a different ethnicity, and everything else had remained the same. "Convincing mosaic" was designed as a metaphor to illustrate why courts should not try to differentiate between direct and indirect evidence and, instead, be used to take evidence as a pattern it reveals, and not as a test.  The 7th Circuit then stated that, from now on, any decision of a district court that treats this phrase as a legal requirement in an employment discrimination case is subject to summary reversal, so that the district court can evaluate the evidence under the correct standard.  That legal standard is simply whether the evidence would permit a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action.  Evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself--or whether just the "direct" evidence does so, or the "indirect" evidence.

With this standard of proof clarified, the Court then held that the combination of racial slurs the Plaintiff was subjected to, combined with the fact he was terminated for a practice(s) held acceptable as testified to by other brokers, a reasonable juror could infer that the Plaintiff's supervisors didn't much like Hispanics, and tried to pin heavy losses on the plaintiff to force him to resign.

The case is Ortiz v. Werner Enterprises, Inc., No.15-2574 (7th Cir.  8/19/ 2016) and is definitely a case any lawyer practicing employment law in the 7th Circuit should keep handy.

Wednesday, August 17, 2016

10th Circuit Rules Truck Driver's Termination for Abandoning Trailer in Freezing Cold was in Violation of STAA Whistleblower Provision

Alphonse Maddin was employed as a truck driver for TransAm Trucking ("TransAm").  In January 2009, Maddin was transporting cargo through Illinois when, at 11pm, he pulled over to the side of the highway because he was unable to find the TransAm-mandated fuel station and his gas gauge was below empty.  When he attempted to pull back onto the road 10 minutes later, he discovered the brakes on the trailer had locked up because of the frigid temperatures.  Maddin reported the frozen brakes to TransAm and was advised that their road assist service would be sent out to him.  While waiting for the road assist, Maddin discovered that his auxiliary power unit was not working and there was no heat in the cab of the truck.  Maddie eventually fell asleep waiting for the road assist but was awakened by a phone call at 1:18am.  When Maddin sat up, his torso and feet were numb from being in the cold temperatures.  Maddie then contacted dispatch who told him to, "hang in there."

About 30 minutes after Maddin's second phone call to road assist, Maddin became worried about continuing to wait in the freezing cold without heat and decided to unhitch his trailer from the truck.  Maddie called his supervisor and informed him he was leaving to seek help but was told to either drag the trailer with its frozen brakes, or remain with the trailer until the road assist arrived.  Maddin followed neither instruction and drove off, leaving the trailer unattended.  Maddie was then terminated for abandoning his trailer.

After his termination, Maddin filed a complaint with OSHA, asserting TransAm violated the whistle-blower provisions of the Surface Transportation Assistance Act ("STAA") when they fired him.  OSHA dismissed Maddin's complaint and Maddin then requested a hearing in front of a Department of Labor ALJ.  The ALJ issued a decision ruling Maddin was terminated in violation of the STAA, finding Maddin engaged in protected activity when he reported the frozen brake issue to TransAm and again when he refused to obey his supervisor's instruction to drive the truck while dragging the trailer with frozen brakes.  The ALJ then awarded Maddin backpay from the date of his discharge to the date of his reinstatement, along with Maddin's per diem travel allowances, which the ALJ concluded were part of his compensation.

TransAm appealed the ALJ's decision to the Administrative Review Board ("ARB") who affirmed the ALJ's decision.  TransAm then appealed ARB's decision to the Court of Appeals for the 10th Circuit.

The STAA Claim

The STAA prohibits an employer from discharging an employee because the employee "has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order."  TransAm challenged the ARB's conclusion that "uncorrected vehicle defects, such as faulty brakes, violate safety regulations and reporting a defective vehicle falls squarely within the definition of protected activity under STAA."  TransAm argued that Maddin's report of frozen brakes is not a complaint of the type the STAA seeks to protect because Maddin was simply communicating a concern about defective brakes, a condition that in and of itself does not constitute a violation of any statute or regulation.  The 10th Circuit held that this issue can be affirmed under an alternative provision of the STAA which makes it unlawful for an employer to discharge an employee who "refuses to operate a vehicle because ... the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's hazardous safety or security condition."

TransAm next argued that because Maddin drove the truck after being instructed to "stay put," that he actually operated his vehicle and the ARB erred in concluding his conduct fell within the "refusal to operate" provision of the STAA.  The term "operate" is not defined by statute and so the 10th Circuit gave "Chevron deference" to ARB's interpretation of the term "operate" to not be coextensive with the term "drive."

Finding ARB's interpretation of "operate" to be a permissible construction of the statute, the 10th Circuit also concluded ARB's finding that Maddin engaged in STAA-protected activity when he unhitched the trailer and drove off in the truck is supported by substantial evidence.

The 10th Circuit also upheld the backpay award.

The case is TransAm Trucking, Inc. v. Department of Labor, No. 15-9504 (Tenth Circuit August 8, 2016).

Monday, August 15, 2016

7th Circuit Again Holds Title VII Does Not Cover Sexual Orientation Discrimination

The Court of Appeals for the 7th Circuit, faced yet again with a claim arguing that sexual orientation discrimination is actionable under Title VII, granted summary judgment in favor of the defendant holding that the law and precedent is clear that Title VII does not allow for claims of sexual orientation discrimination.  While the 7th Circuit in their 42-page decision seem reluctant to make this ruling upholding the lower district court, they do take care to provide much commentary on how such claims may be actionable and also suggest that the times may be ripe for Title VII--or another law such as ENDA--to cover such claims, noting how several states, have laws protecting sexual orientation status in employment and how the Supreme Court has struck down almost every ban on gay marriage.  In noting the issue of gay marriage in the Supreme Court, the 7th Circuit noted the paradox in which "...a person can be married on Saturday and then fired on Monday for just that act.”  The 7th Circuit also opined that perhaps it is time for the Supreme Court to weigh in on this issue, which may be a reason they heard this appeal, despite their seemingly easy decision to make.

Luckily for employees in Wisconsin, the Wisconsin Fair Employment Act ("WFEA") does provide protection against discrimination in the workplace against individuals based on their sexual orientation.  Sexual orientation under the WFEA is defined as having a preference for heterosexuality, homosexuality or bisexuality, having a history of such a preference or being identified with such a preference.

The case is Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. July 28, 2016).