EEOC loses Equal Pay Act claim against the Port Authority

The EEOC sued the Port Authority of New York under the Equal Pay Act, claiming that it was denying female attorneys equal pay. The Court of Appeals issues a resounding victory for the Port Authority, finding that the EEOC is merely arguing that "an attorney is an attorney is an attorney" without showing that Port Authority is unequally paying lawyers handing similar responsibilities.

The case is EEOC v. Port Authority of New York and New Jersey, decided on September 29. The Equal Pay Act codifies "equal pay for equal work." But EPA case are hard to win. You have to show that the men and women have similar responsibilities.The EEOC, though, did not highlight "the actual content of the work done by the dozens of attorneys either within or across practice areas at the Port Authority." Rather, the EEOC "alleged, in conclusory fashion, that all of the non-supervisory attorney jobs in the Port Authority's law department are substantially equivalent and require the same skill, effort, and responsibility."

The EEOC was not specific enough in suing Port Authority. The Court of Appeals (Livingston, Droney and Chen [D.J.]), says, "While the equal work inquiry does not demand evidence that a plaintiff's job is 'identical' to a higher-paid position, the standard is nonetheless demanding, requiring evidence that the jobs compared are 'substantially equal.'" We don't look at job classifications or titles or broad generalizations but actual job requirements and performance. The Court explains:

the EEOC alleged that the Port Authority required all of its nonsupervisory attorneys to have similar “experience, training, education, or ability,” bar admission, and the capacity to call upon “problem‐solving and analytical skills” as well as “professional judgment.” However, such bland abstractions – untethered from allegations regarding Port Authority attorneys’ actual job duties – say nothing about whether the attorneys were required to perform “substantially equal” work. Thus, the EEOC’s complaint provides no guidance as  to whether the attorneys handled complex commercial matters or minor slip‐and falls, negotiated sophisticated lease and financing arrangements or responded to employee complaints, conducted research for briefs or drafted multimillion‐dollar contracts. The EEOC asserts that such allegations are unnecessary because “all lawyers perform the same or similar function(s)” and that “most legal jobs involve the same ‘skill.’” Appellant’s Br. at 29. But accepting such a sweeping generalization as adequate to state a claim under the EPA might permit lawsuits against any law firm – or, conceivably, any type of employer – that does not employ a lockstep pay model. Without more, these facts cannot be read to raise the EEOC’s “substantially equal” work claim “above the speculative level.”

Along the way, the Court of Appeals reconciles recent Supreme Court rulings on Rule 12 pleading standards. In 2002, the Supreme Court said in the Swierkiewicz case that the federal rules do not require heightened pleading standards for employment discrimination cases, i.e., the plaintiff does not have to articulate a prima facie case in the complaint. But in 2007 and 2009, the Supreme Court said all plaintiffs (in any civil action) have to allege a plausible claim in the complaint, not merely a possible claim. We now call this Iqbal pleading, named after the 2009 case. The Court of Appeals states, "we recognize that Swierkiewicz has continuing viability, as modified by Twombly and Iqbal. Swierkiewicz held only that discrimination complaints are subject to the requirements of Rule 8, a rule now guided by the Court’s more recent holdings on the pleading standard." But, the Court adds, "we conclude that, while a discrimination complaint need not allege facts establishing each element of a prima facie case of discrimination to survive a motion to dismiss, it must at a minimum assert nonconclusory factual matter sufficient to 'nudge[] [its] claims’ ... ‘across the line from conceivable to plausible’ to proceed."

Get out of the house

What do you do when the police come to the house? Ask for a warrant. In this case, the police showed up at someone else's house without a warrant and searched plaintiff. Does she have any rights? Yes.

The case is Payne v. Galie, a summary order decided on September 10. The Fourth Amendment says the police need a warrant to search the house. The Supreme Court has said a non-resident has Fourth Amendment rights "if she is an overnight guest in that home or otherwise enjoys a similar degree of acceptance into the household." But those rights fall away if you are in the house for a business transaction and only remain there for "a matter of hours."

Payne alleges in her complaint that the police "entered her host's apartment without a warrant in order to arrest her." But her complaint does not allege that she had a reasonable expectation of privacy in the apartment. The Court of Appeals (Lynch, Katzmann and Sack) gives her a break. She can replead the case and start again. Normally, the Court does not give people this relief when they did not ask for it in the district court, but plaintiff did not have a lawyer at that time and probably didn't know what she was doing.

Finally, while defendants say that plaintiff has to affirmatively allege that she did not consent to the officers' warrantless entry into the apartment, the Second Circuit notes that plaintiff is not required to plead facts to negate an affirmative defense. That argument will have to await defendants' summary judgment motion, when discovery is complete.

2d Circuit gives district court a primer on summary judgment motions

In this case, the Court of Appeals "write[s] to clarify a district court's obligations in granting summary judgment where a motion for such judgment is fully or partially unopposed." While this ruling is meant for district judges, if you handle cases in federal court and summary judgment motions are a part of your life, you should also read it.

The case is Jackson v. Federal Express, decided on September 9. In this employment discrimination case, FedEx moved for summary judgment at the close of discovery, filing a Rule 56.1 statement of undisputed facts that it claimed entitled them to summary judgment. Plaintiff's lawyer filed a brief that said fact issues warranted a trial on the retaliation, but said nothing about plaintiff's other claims. The district court dismissed the retaliation claim, finding that no jury would find in her favor. It also dismissed the remaining claims "in the absence of opposition."

This sequence provides the vehicle for the Second Circuit to remind us that the district court cannot simply enter default judgment if the plaintiff fails to respond to a summary judgment motion. The court still has to review the Rule 56.1 statements and decide for itself if the plaintiff has a case. Of course, if plaintiff does not respond to the motion, that sends a bad signal to the district court. But the court still has to follow the process. It is conceivable that an unopposed motion can still be denied if the district court thinks the plaintiff has a case.

Here is the general rule for district courts to follow:

when a party, whether pro se or counseled, fails to respond to an opponent's motion for summary judgment, a district court may not enter a default judgment. Rather, it must examine the movant's statement of undisputed facts and the proferred record support and determine whether the movant is entitled to summary judgment. Where a partial response to a motion is made -- i.e., referencing some claims or defenses but not others -- a distinction between pro se and counseled responses is appropriate. In the case of a pro se, the district court should examine every claim or defense with a view to determining whether summary judgment is legally and factually appropriate. In contrast, in the case of a counseled party, a court may, when appropriate, infer from a party's partial opposition that relevant claims or defenses that are not defended have been abandoned. In all cases in which summary judgment is granted, the district court must provide an explanation sufficient to allow appellate review. This explanation should, where appropriate, include a finding of abandonment of undefended claims or defenses.

The Second Circuit (Winter, Hall and Straub) says the district court did its job here and did not simply grant default judgment on plaintiff's claims. Rather, the Court of Appeals notes that summary judgment is a good time for plaintiff's counsel to decide which claims to pursue and which to abandon. Abandonment may be implied if counsel does not respond to defendant's arguments about those claims. "Where abandonment by a counseled party is not explicit but such an inference may be fairly drawn from the papers and circumstances viewed as a whole, district courts may conclude that abandonment was intended." That inference was proper in this case because plaintiff's lawyer expressly focused on the retaliation claim only, not the others.

The Second Circuit further states that district courts are not required to issue lengthy rulings on summary judgment motions. All that is required is enough analysis to permit meaningful appellate review. In this case, the district court satisfied its obligations. The case was relatively simple to decide in that plaintiff's retaliation claim "collapsed with her deposition" as she contradicted allegations in her complaint and made certain admissions that killed the case. "In such a case, there is no need for a district court to robotically replicate the defendant-movant's statement of undisputed facts and references to the record or otherwise serve as an assistant to our law clerks."

Courts need to carefully consider whether to dismiss cases for failure to prosecute

Pro se plaintiffs often do not know what they are doing. In this case, the pro se inmate sued jail personnel for deliberate indifferent to his serious medical needs. The case was dismissed for failure to prosecute. The Court of Appeals gives plaintiff a break and reinstates the case.

The case is Baptiste v. Somers, decided on September 24. Plaintiff filed the case in February 2009. The district court threw out some of the claims in August 2010. Plaintiff filed a proposed amended complaint in January 2011. But his proposed amended complaint was not really a complaint but a legal brief that plaintiff intended to rebut the Answer. The Court told plaintiff to file a proper complaint. Plaintiff did not comply with this directive for 23 months, At that point, the Court issued an Order to Show Cause why the case should not be dismissed for failure to prosecute. Plaintiff then found a lawyer who filed two responses: (1) a letter in December 2012 explaining that plaintiff had just recently hired a lawyer and that plaintiff had been ill and unable to pursue his claims, (2) and a response in February 2013 stating the basis for plaintiff's claims and further claiming that, contrary to the district court's directive, discovery could not be completed in 60 days.

The district court dismissed despite these two submissions, stating that plaintiff did not offer a plan to complete proceedings within 60 days. The Court also said that plaintiff did not explain the nearly two-year delay in prosecuting the case. The Court did not make reference to the new lawyer's December 2012 letter explaining why the case lay dormant for so long.

The correct way to determine if plaintiff failed to prosecute the case is by considering the duration of the delay, whether plaintiff knew his failure to proceed would result in dismissal, whether defendants would be prejudiced by further delay, the court's interest in managing its docket, the plaintiff's interest in pursuing the case and whether a less-adequate sanction is appropriate. The judge in this case did not appear to consider those factors. And the plaintiff did provide a good reason for the delay: he was ill and did not have a lawyer. Once the Court threatened to dismiss the case, plaintiff hired a lawyer who mad ethe appropriate filings. In all, the district court blew it. The case is revived.  

Do not blow the gift of time

Lawsuits under Title VII and the Americans with Disabilities Act carry a short statute of limitations, 300 days to be exact. You can extend the 300 day period under the "continuing violations" theory, but that's unpredictable.

The case is Cohen v. City of New York, a summary order decided on September 10. Cohen was a corrections officer. He accepted defendants' retirement offer on July 16, 2008. Cohen then filed an EEOC charge on September 3, 2009, more than 300 days later. Cohen says his claim actually accrued on November 16, 2008, the date his retirement became effective, which would bring him within the 300 days. The Court of Appeals (Katzmann, Sack and Lynch) is not buying it.

Cohen invokes "continuing violations" because Department of Corrections ignored his requests for a reasonable accommodation. "He argues that ... the statute of limitations should run from his last day of work, which was the point at which (1) it became clear that DOC was not going to grant his request for a reasonable accommodation, and (2) the disciplinary charges [against him] were no longer pending." But even if the employer blew off plaintiff's reasonable accommodation request, it should have been apparent to him on the day the parties agreed he would retire, July 16, 2008, that the accommodation would never happen. That means the claim accrued at least on that date, more than 300 days from the EEOC charge. That claim is therefore time-barred.

As for the disciplinary charges against him, Cohen argues that the date to challenge them accrued on the date his retirement became effective, because DOCS refused to dismiss the charges against him once he agreed to retire. "These acts, in Cohen's view, are related because they functioned to prevent Cohen from objecting to unfairly-lodged disciplinary charges and ultimately force him out of the DOC workforce." The Court of Appeals is not buying this. "Even if the decision to leave the disciplinary proceedings pending was a separate act of discrimination, Cohen knew or should have known of this decision by July16, 2008, as well."

What do we learn from this? Don't blow the gift of time. Title VII and ADA do not give us a lot of time to ready a discrimination lawsuit, true, but 300 days should give you enough time to know you are the victim of discrimination and for a lawyer to put together an EEOC charge. Creative arguments in support of a continuing violation argument aside, it's best to get the charge filed now.

Reduction-in-force termination was not age discrimination

Plaintiff sues his former employer for age discrimination. He was fired in a reduction-in-force (RIF) after management thinned the herd by selecting underperforming employees. While plaintiff (56 years-old) was the oldest person in his sales group to be fired, the Second Circuit paints a dismal picture of his performance, noting that he ranked 136th among sales personnel at Bank of America in 2010. The case is dismissed on summary judgment, and the Second Circuit affirms.

The case is Delaney v. Bank of America, decided on September 5. RIF cases are hard to win because under a RIF, many employees are usually fired at once, and it is therefore hard to prove that employees were let go because of their age. These cases can be won, but my sense is that courts presume that RIF's are legitimate and require the plaintiff to overcome that presumption. Delaney cannot do so here. The Court (Winter, Wesley and Hall) says that plaintiff cannot show that the articulated reasons for his termination -- that management merely got rid of its underperforming employes in the RIF -- are not false or pretext for discrimination. Delaney was among 418 employees who were terminated "and had the worst performance of employees in his group at his level."

A few points of interest here for employment lawyers. First, the Court of Appeals applies the "but for" test articulated by the Supreme Court a few years ago in interpreting the ADEA. Citing an EDNY case for this proposition, the Second Circuit says that, under this new rule, "the condition that a plaintiff's age must be the 'but for' cause of the adverse employment action is not equivalent to a requirement that age was the employer's only consideration, but rather that the adverse employment action would not have occurred without it."

Second, plaintiff's age-related evidence in support of his claim is a draft EEOC charge by an older co-worker, which says he was fired six months after plaintiff was. The draft charge "alleges that he was terminated on the basis of his age and that colleagues and managers made repeated comments concerning his age." This will not cut it. The Court of Appeals says the draft charge is hearsay and therefore inadmissible. "Even assuming, however, that Delaney could present the evidence from the EEOC charge in admissible form at trial by calling C.G. as a witness, the evidence would not call into doubt the nondiscriminatory reason BoA has proffered for Delaney’s termination. Comments about another employee’s age, removed from any context suggesting that they influenced decisions regarding Delaney’s own employment, do not suffice to create a genuine issue of fact as to whether age was the but-for cause of Delaney’s termination."

Corporations have free speech rights, too

The State of Connecticut passed a law that prevented insurance adjusters from telling broken auto glass customers where to repair their glass. The Court of Appeals holds that this law violates the First Amendment.

The case is Safelite Group v. Jepsen, decided on September 4. The plaintiffs are an insurance claims management company and its affiliate, which operates an auto-glass repair and replacement business in Connecticut. Safelite recommends its affiliate for the repair jobs. This was improper under Connecticut law. The Second Circuit (Winter, Walker and Cabranes) says this law is improper under the First Amendment.

The national dialogue has focused on the First Amendment rights of corporations to give money to political candidates. But corporate speech rights are not a new concept. The Supreme Court has held that corporations have some rights to speak in the non-political context. "Commercial speech that is not false or deceptive and does not concern unlawful activities ... may be restricted only through means that directly advance that interest." In other words, the government needs a good reason to prohibit honest commercial speech.

There is some confusion about the standard of review in cases like this, and a case can be made that the government can win if it advances a rational basis (or any reason at all) for the restriction. After some analysis, the Second Circuit, though, says intermediate-level review applies because this case involves speech that "compels speech that goes beyond the speaker's own product or service." This case does not involve the government's efforts to restrict dishonest speech. Instead, the challenged law requires companies to either stay silent or to give a free advertisement to a competitor who might fix the auto glass. The state's justification for this law -- "protecting consumer choice, preventing steering, and combating the undue influence of self-interested insurance claims adjusters" -- is not good enough to save the law. This justification seems post hoc to the Court of Appeals, and upon careful scrutiny it does not appear that the law would save customers any money since insurance companies pay everything over a deductible. The Second Circuit therefore orders the district court to enter a preliminary injunction against enforcement of the law.