Election of remedies clause in union contract does not violate Title VII

The collective bargaining agreement for unionized employees is the first place to look when their rights are violated. When an aggrieved employee in Connecticut looked at the CBA, she saw that it contained a provision that required her to forego arbitration in the event she brought a charge of discrimination with the EEOC. That provision is legal, the Second Circuit held this week.

The case is Richardson v. Commission on Human Rights and Opportunities, decided on July 7. The Second Circuit (Walker and Katzmann) noted that Title VII makes it quite difficult for an employer to require its employees to waive their rights under that law. "Courts have inferred from the purpose and structure of Title VII a requirement -- what we will call the 'Gardner-Denver doctrine' -- that any release or waiver of Title VII meet certain requirements, including that a collective bargaining agreement, as opposed to an individually bargained employment contract] not waive covered workers’ rights to a judicial forum for causes of action created by Congress. . . . Moreover, even with respect to individually bargained agreements, courts require that any such release or waiver be knowing and voluntary."

But the above legal principles do not help the plaintiff here. Judge Walker concludes, "The Gardner-Denver doctrine does not preclude a union and an employer from agreeing that employees must forego their right to arbitrate a grievance if they bring a lawsuit in federal court arising out of the same facts." As "Richardson remained free to file a charge with the EEOC, as she did, and to pursue a Title VII action in federal court, as she has," the CBA's provision disallowing her to bring a simultaneous arbitration does not violate Title VII. This is also sensible policy for the employer and the union as both entities may want to allocate their scarce resources carefully: "the election-of-remedies provision seems to qualify as a “reasonable defensive measure” utilized by Richardson’s employer to litigate discrimination claims brought against it effectively and efficiently."

$600k in compensatory damages for disability discrimination

There are two ways to evaluate a damages award under state law. In a recent case, the Court of Appeals had to figure out what to do about a large jury award for a case of disability discrimination. It appears there is a fork in the road when it comes to reviewing a damages award, and, as Yogi Berra would say, the Court of Appeals did not take it.


The case is Brady v. Wal-Mart Stores, decided on July 2. I write about the liability findings here. After finding that Wal-Mart discriminated against an employee because of his Cerebral Palsy, the jury awarded the plaintiff $2.5 million in compensatory damages, $9,114 in economic damages, $5 million in punitive damages, and $2 in nominal damages. As the Second Circuit noted, "The district court apportioned all of the compensatory damages to the state law claim and all of the punitive damages to the ADA claim. The court struck the economic damages award because Brady did not prevail on his constructive discharge claim. And . . . the punitive damages award was reduced to the statutory cap of $300,000." The plaintiff then accepted a remittitur of the compensatory damages award from $2.5 million to $600,000." In other words, the trial court held the compensatory damages were too much and that plaintiff had to accept $600,000.


Wal-Mart appeals, arguing that the trial court should have reduced the compensatory damages even further and that the court used the wrong legal standard in assessing the damages at $600,000. The Second Circuit identifies two ways to assess whether the trial court did the right thing under state law.


First, under the state law governing damages awards, "a compensatory damages award is excessive 'if it deviates materially from what would be reasonable compensation.'" That law is CPLR § 5501(c). But under the state court decisions dealing with these matters, the standard is:

"whether the relief was reasonably related to the wrongdoing, whether the award was supported by evidence before the Commissioner, and how it compared with other awards for similar injuries.” The Second Circuit thinks the three-part test is more favorable to plaintiffs.


The problem is not only that it's not clear which standard the trial court used in this case, but that the plaintiff did not "protest" this issue on appeal, according to the Second Circuit: "either the district court correctly applied the Transit Authority standard, or it erred in a way that harmed Appellee—by applying the “deviates materially” standard—but Appellee has not protested. Either way, there is no cause for remand. Therefore, the judgment of the district court is affirmed."

Some negative performance reviews are "adverse employment actions"

You can't sue over just any negative decision at work. If you want to sue for employment discrimination, the courts require that you identify an "adverse employment action." That's a legal term of art. Termination from employment or a demotion certainly qualifies as adverse employment actions. The closer calls are the job transfers or other decisions which may or may not have legal consequence, at least in the eyes of the courts ruling on employment discrimination claims.


In a recent case, Judge Rakoff ruled that negative employment ratings were enough to qualify as adverse employment actions. The case is Shapiro v. N.Y. City Dep't of Educ., 2008 U.S. Dist. LEXIS 46327 (S.D.N.Y. June 13, 2008). My office co-represented the plaintiffs in this case.


Normally, negative performance reviews are not enough to bring a lawsuit. In other words, they are not adverse employment actions. But you can sue over them by showing that the reviews have consequences down the road. In Shapiro, the plaintiffs were public school teachers who received "U" ratings. The U stands for unsatisfactory. As Judge Rakoff noted in summarizing the law in this area:

a plaintiff suffers an adverse employment action if he or she undergoes a "materially adverse change" in the terms and conditions of employment. To be "materially adverse," however, a change must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Instead, a materially adverse change must be of the order of "a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or [the like]."

In this case, the U ratings were sufficiently detrimental to allow the lawsuit to go to trial:

those plaintiffs who received end-of-year U ratings have created a genuine issue of amterial fact as to whether such a rating constitutes an adverse employment action. Plaintiffs have adduced evidence that the consequences of a U rating include: (a) being removed from "per session" (i.e. extracurricular) paid positions; (b) being barred from applying for per session positions for five years; (c) inability to work in summer school; (d) lost income, including inability to move up a salary step; (e) reduced pension benefits; (f) inability to transfer within the school district; and (g) damaged professional reputations and stymied careers.

Circuit upholds disability discrimination verdict

It's tough to appeal from a jury award. Wal-Mart learned that the hard way in the context of a disability discrimination case, where the trial court ordered that Wal-Mart pay out $600,000 in compensatory damages after the jury found that the company improperly transferred a disabled employee from the pharmacy to the parking lot and subjected him to a hostile work environment.

The case is Brady v. Wal-Mart Stores, decided on July 2. The plaintiff has cerebral palsy. He got the job at Wal-Mart working in the pharmacy but his manager immediately disliked him, playing games with his schedule, expressing unreasonable impatience with his job performance and transferring him to work out in the parking lot, cleaning up garbage and pushing shopping carts. Here's what the Court of Appeals (Calabresi, Kearse and Katzmann) did:

1. It affirmed that plaintiff was disabled and, more significantly, that management perceived him as disabled. The perception claim is available under the Americans with Disabilities Act, but it rarely surfaces in the Court of Appeals, which held that Brady's superior "testified that she regarded Brady to be slow and that she “knew there was something wrong” with him [and] Brady’s father testified that the store manager told him that Chin said that Brady “wasn’t fit for the job.”

2. The parking lot transfer was an "adverse employment action" under the ADA even though Brady did not lose any salary. Since the job "resulted in a 'less distinguished title' and 'significantly diminished material responsibilities,'” the transfer is worth suing over, despite the short time period Brady spent in the parking lot. While Brady was then brought back into the building, it was not the pharmacy but the food section, which the jury could have found was worse than the pharmacy.

3. While "'[G]enerally, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed,'” that's not always the case. The Second Circuit thus sets out a wrinkle on that rule, holding that "that an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled." Since Brady's disability was obvious to all (Cerebral Palsy), management had a duty to accommodate it. Since Wal-Mart failed to engage Brady in any dialogue on ways to accommodate his disability, the jury properly ruled in Brady's favor on the accommodation claim.

Circuit rejects Syrian rendition/torture claim

The War on Terror continues to produce contentious but interesting rulings from the Second Circuit. Today, over a lengthy dissent by Judge Sack, the Court of Appeals holds that a dual citizen of Syria and Canada cannot sue American officials for constitutional violations flowing from their decision to remove him to Syria after denying him entry to this country because of his alleged ties to al Qaeda.

The case is Arar v. Ashcroft, decided on June 30. As Judge Cabranes writes for the majority, "Arar alleges that [defendants] mistreated him while he was in the United States and then removed him to Syria with the knowledge or intention that he would be detained and tortured there."

The claim under the Torture Victims Protection Act fails because, while he alleges that defendants removed him to Syria with the knowledge or intention that Syrian authorities would interrogate him under torture and that defendants also gave Syrian authorities information about him and suggested subjects for Syrian authorities to interrogate him about, the plaintiff does not contend "that defendants possessed any power under Syrian law, that their allegedly culpable actions resulted from the exercise of power under Syrian law, or that they would have been unable to undertake these culpable actions had they not possessed such power."

The plaintiff also cannot maintain a Bivens action against U.S. officials. A Bivens claim allows the victims of a civil rights violation to sue federal officials. But Bivens remedies are quite limited, as any experienced civil rights lawyer can tell you. One reason for this is that the Supreme Court instructs that Bivens claims must fail if there is another way for the plaintiff to gain relief, even if that relief is relatively limited. Here, the Immigration and Nationalization Act offers the plaintiff some relief. That kills the Bivens claim, which normally would provide for the full range of damages. While the plaintiff argues that federal officials interfered with his right to pursue relief under the INA, the Second Circuit adopts the reasoning of the Eighth Circuit in holding that, at best, the plaintiff can sue for a due process violation arising from that interference. But, the Court of Appeals is "reluctant to permit litigants to avoid congressionally mandated remedial schemes on the basis of mere allegations of official interference."

Another reason the plaintiff can't win is that a ruling in his favor would interfere with U.S. foreign policy and national security. Time and time again the courts have declined to entertain such claims for that reason. The Second Circuit reminds us: "The Supreme Court has observed on numerous occasions that determinations relating to national security fall within 'an area of executive action in which courts have long been hesitant to intrude.'” The crux of the Second Circuit's reasoning follows:

this suit arises from the Executive Branch’s alleged determination that (a) Arar was affiliated with Al Qaeda, and therefore a threat to national security, and (b) his removal to Syria was appropriate in light of U.S. diplomatic and national security interests. There can be no doubt that for Arar’s claims to proceed, he must probe deeply into the inner workings of the national security apparatus of at least three foreign countries, as well as that of the United States, in order to determine the basis for his alleged designation as an Al Qaeda affiliate and his removal to Syria via Jordan despite his request to be removed to Canada.

As any judicial inquiry into the plaintiff's claims would require the court to delve into national security issues and potentially disrupt the effective functioning of U.S. foreign policy, his claim must be dismissed.

Age discrimination can violate Section 1983

The rules of the game if you want to file an age discrimination case in Federal court include filing a discrimination complaint with the Equal Employment Opportunity Commission. Then you have to wait two months before you can bring the lawsuit, giving the EEOC an opportunity to investigate and possibly resolve the claim. But there is another way: Section 1983.

The Supreme Court has never taken up this issue, but in the Second Circuit, the district courts for the most part are allowing plaintiffs to litigate their age discrimination claims under the Equal Protection Clause of the Constitution, enforceable through Section 1983. Other Circuits have held that you can't do this, because the Age Discrimination in Employment Act is sufficiently comprehensive to preeempt Section 1983 (the general civil rights law which allows you to enforce your federal rights in court). See, e.g., Zombro v. Baltimore City Police Dep't, 868 F.2d 1364, 1366-67 (4th Cir. 1989) (availability of the ADEA's detailed procedures forecloses age discrimination claim brought under § 1983 because a plaintiff may not "cavalierly bypass the comprehensive process fashioned by Congress in the ADEA"). But for the time being, in the Second Circuit, you can litigate both under the ADEA and Section 1983.

This issue was brought to life once again recently in Shapiro v. New York City Department of Education, 2008 U.S. Dist. LEXIS 46327 (S.D.N.Y. 2008), decided on June 16. My office co-represented the plaintiffs in Shapiro. In that case, some of the plaintiffs did not file EEOC complaints. Their only remedy for the age discrimination against their government employer, then, was Section 1983. This statute holds that state actors who violate your civil rights can be sued in court for damages. There is no damages cap under Section 1983, which also offers punitive damages and attorneys' fees. It also has a longer statute of limitations than the ADEA: three years to 300 days.

Why can plaintiffs sue both under the ADEA and Section 1983? Because the Second Circuit held in 1993 that race and gender discrimination, normally litigated under Title VII of the Civil Rights Act of 1963, may also violate the Equal Protection Clause. That case was Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134 (2d Cir. 1993), which held that Title VII did not preempt a § 1983 claim for gender discrimination in violation of the Equal Protection Clause of the Constitution. As the district courts in the Second Circuit have held that age discrimination claims against the government may be litigated under the Constitution, see, e.g., Purdy v. Town of Greenburgh, 166 F. Supp. 2d 850 (S.D.N.Y. 2001), Judge Rakoff adopts the reasoning in those cases and allows the plaintiffs' Section 1983 claims in this case to go forward.

A discrimination complaint can take on a life of its own

In retaliation cases filed under the employment discrimination laws, the plaintiff can win the case by showing that management punished him for complaining about discrimination. In that sense, the cover-up can be worse than the crime, and the retaliation itself gives the plaintiff two cases: one for the initial discrimination and another for the retaliation. The tricky part for the plaintiff is sometimes proving that the right people knew about the initial discrimination complaint. If the decisionmaker was not unaware of the complaint, he can't be responsible for retaliation.

The Second Circuit, however, holds that "general corporate knowledge" is enough to prove that the right people knew about the initial discrimination complaint. The idea is that a complaint to one member of management will become known to others in the management hierarchy. In other words, the discrimination complaint can take on a life of its own. This makes sense. When someone in the workplace complains about discrimination, anyone of importance in the workplace will likely find out about it. Discrimination complaints are not like other complaints. Discrimination complaints represent fighting words, and management not only takes them seriously, they may take it personally.

This played out in a case that went to trial in the Eastern District of New York, where the judge dismissed one of the claims because certain decisionmakers were not aware of the plaintiff's discrimination complaint, which got them off the hook for retaliation. The Second Circuit reversed, in an unpublished summary ruling.

The case is Triola v. Snow, decided on June 26. Summarizing the reasoning of the trial court, the Court of Appeals (Straub, Sack and Kravitz) noted:

The district court found that there was "no evidence that Joseph King, Mr. Triola's immediate supervisor, was aware of the informal complaint that [Mr. Triola] filed on May 8, 1998 or of his meeting with the EEO counselor on that date." Rather, the court, relying on Mr. King's affidavit, found that Mr. King first became aware of Mr. Triola's complaint on November 25, 1998. Accordingly, on the ground that Mr. Triola had failed to establish the knowledge requirement of a prima facie case of retaliation, the court dismissed Mr. Triola's claims of retaliation prior to November 25, 1998.

However, the Court reiterated its longstanding rule that "neither this nor any other circuit has ever held that, to satisfy the knowledge requirement, anything more is necessary than general corporate knowledge that the plaintiff has engaged in a protected activity. Rather, the knowledge element is satisfied when a plaintiff has complained directly to another employee whose job it was to investigate and resolve such complaints."

Since the plaintiff in this case met with an in-house Equal Employment Opportunity officer to complain informally about discrimination, we may assume that the complaint made its way to the decisionmakers -- in particular a Mr. King -- who subjected the plaintiff to an adverse employment action. Since the district court ignored the Second Circuit's rule about "general corporate knowledge" governing discrimination complaints, the case returns to the trial court to "consider whether Mr. Triola proved a causal connection between his protected activity and the adverse action, and whether retaliation played a motivating role in Mr. King's action."