5th Circuit Reverses MSJ in Chronic Fatigue Syndrome Case

In a lengthy opinion, the 5th Circuit today reversed summary judgment for the employer where the district court found plaintiff's chronic fatigue syndrome was not a disability under the ADA. EEOC v. Chevron (5th Cir. 6/5/09) [pdf].

The Court also reversed the alternative holding that plaintiff's completion of the medical questionnaire without mentioning her previous diagnosis of CFS 15 years earlier justified her termination.

Although this was not based on the new amendments to the ADA, my guess is that it is a harbinger of things to come -- fewer summary judgments in ADA cases.

Arbitration Fairness Act - A Fatal Linkage for Employers

The Arbitration Fairness Act would eliminate pre-dispute arbitration agreements in consumer, franchise and employee matters. I have long argued that because everyone (including me) does not like them snuck into the fine print of consumer agreements that employers were going to be in trouble unless they could break the linkage between employment and consumer agreements.

I never really had a good short rationale as to why there was a major difference, although clearly there is. Fortunately, the true distinction is highlighted in an article by Richard M. Alderman of the University of Houston Law Center, Why We Really Need the Arbitration Fairness Act: It's All About Separation of Powers. Here's the abstract of Professor Alderman's article:

Congress is currently considering the Arbitration Fairness Act, which prohibits pre-dispute mandatory arbitration clauses in consumer contracts. This article reviews the use of consumer arbitration to demonstrate that in consumer cases arbitration is used to eliminate consumer disputes, not to provide an efficient alternative forum. More importantly, it is suggested that the widespread, in fact near universal, use of consumer arbitration conflicts with the core American belief in separation of powers. Through arbitration, business can effectively divorce itself from the civil justice system, eliminating the judicial branch from consumer disputes. The only way to reverse this dangerous trend is through the prohibition contained in the Arbitration Fairness Act.

I emphasized the sentence that points out the key difference between consumer agreements and employment situations. Whatever you might say about mandatory arbitration of employment disputes, it is not fair to say that they are designed to prevent claims from being heard.

I personally have handled more than twenty-five such matters which went all the way to hearing, and although the percentage of arbitration cases that go to hearing as opposed to lawsuits that goes to trial, is considerably higher, I have handled a lot more claims that were in arbitration that were resolved somewhere along the way before going to hearing.

I think that is an important distinction between the two, and a good rationale for why they should be treated differently. For those employers who have arbitration programs, it is time to act and start making this distinction and others to your legislators. My view is that is the only way employment arbitration is going to survive.

EFCA - The Dangers of Reporting

I, like many noticed a story that was circulating yesterday from a California radio station that Senator Feinstein D-CA had made major news in a meeting with Santa Clarita Chamber of Commerce members by announcing that she would not support EFCA in any form. For anyone following the story, that sounded suspect and it didn't take long for the "breaking news" to be squelched.

Fairly effectively in this report from Firedoglake, “Feinstein Bailing on EFCA” or “Reporter Punk’d By Chamber of Commerce”?, which includes an update with the following:

Speaking on background, a confidant of the senator went a bit further. "This must be [Shaffery's] first rodeo because the story hasn't changed much. It has been the same: She is looking for a compromise. And anyone who says otherwise is engaging in some wishful thinking."

Clearly efforts to compromise are being made. That they continue to be talked about makes me believe that organized labor is at least still debating whether to accept a compromised version of EFCA or take an all or nothing approach for the current bill. Doing the latter would delay any bill until 2011 and be dependent on not only gains in the Senate in 2010 elections, but also a change of heart on the part of a number of current Democrats who are not too keen on certain provisions.

Just to reiterate there are three key components to the bill. Here's my current view on where things stand:

• Card check as proposed in the original bill is gone. Although consensus has not been reached on exactly what will replace it, there are lots of ideas being floated. My guess is that some sort of agreement that will pass muster can be reached, probably some form of expedited election and additional access for union organizers;
• Binding arbitration to ensure an initial contract, in my view by far the most dangerous portion of the proposed EFCA, is still up in the air and could prove to be the deal breaker;
• Increased penalties for violations of the NLRA has not got a lot of attention yet. I think that is because most agree some change is necessary and there is an assumption that if a deal can be reached on the two other issues, this one can be resolved as well.
• Although possible, it seems fairly unlikely that anything could be passed until Al Franken is seated, but that seems to getting closer in time.
  

If organized labor is willing to take less than the original bill, and it seems to me that is the case, then this summer is, or at least should be, going to be a period of heightened vigilance for the employer community, regardless of what you may read about the various 'opponents' of the bill.

Driving and Talking - Not in Texas School Zones

For some reason I have been struck recently by just how many people have cell phones attached to their ears. Unfortunately, too many of them are behind the wheel of a moving vehicle.

The good folks at Workers Comp Insider have an excellent post, Cell Phones: Unsafe at Any Speed?, although it would have been nice to get it to the Texas legislature a little sooner.

Although there were several cell phone bills introduced in this year's session, the only one that seems it will make it through the laborious process is HB 55. It has passed both houses and if signed by the Governor, will prohibit speaking on a cell phone in a school zone (assuming that the city places an appropriate sign to let you know it is against the law). It also prohibits school bus drivers from using a phone at any time. (I think that was hopefully a no brainer.)

It's at least a start ....

Update (6/22/09): The bill was signed by Governor Perry last Friday and becomes effective September 1, 2009. The text of the bill is here [pdf] .

ENDA Back Into the Congressional Mix Soon

Jillian Weiss' post at Trangender Workplace Diversity, Federal Bill on Employment Non-Discrimination Moving Forward has a link to the Washington Blade's interview with Congressman Barney Frank, the sponsor of ENDA who indicates he will be introducing it into this Congress soon.

According to the article, he intends on going with the full version of the Act which would extend Title VII protection not only for sexual orientation but for gender identity. It was the latter provision which caused a breakdown in negotiations between its proponents and the business community in the last Congress, and perhaps more importantly, set off a divide int the LGBT community itself.

Although it seems the general feeling is that most workplace legislation will await a resolution EFCA, given that a compromise was almost reached on this legislation in the last Congress, it could be one that moves on a slightly different and faster track.

Some reasons:

• many states already have extended such protection, more on sexual orientation, but a substantial number on gender identity as well,
• many large employers have extended their own internal protections, and combined with the state statutes means it is not as big a cause for that group;
• the constituencies behind EFCA and ENDA are not necessarily the same, although there is considerable overlap; and
• my sense that same sex marriage, not workplace rights, now seems to be the focal point for those for whom sexual orientation is a political issue.

Gender identity is still much less understood, a point that Representative Frank seems to understand, as he is looking to Congressional hearings for purposes of education on that part of the legislation. Dr. Weiss will be doing her part at her blog as she intends a series of educational postings on the issue.

Ironically, although it is much less understood, it is individuals who can make a claim of gender identity discrimination who have fared much better under at least some circuit's view of Title VII than those with a sexual orientation claim. See 9th Circuit Joins 6th on Transgender Cases and Transgendered Workers in the Mainstream Press.

Texas Legislature Takes Care of an Irritant in Texas Arbitration Law

When the law of arbitration in Texas was relatively unsettled, it was common for state district judges to deny motions to compel. To ensure that you were protected on appeal, an employer had to both file an interlocutory appeal AND file a mandamus action under the Federal Arbitration Act.

The reason, if the Texas Arbitration Act were applicable then the proper route to the appellate court was appeal; however, there was no comparable provision for the appeal of an action governed by the Federal Arbitration Act, mandamus was the only route. Since it was often unclear which act would control, the safe course was to appeal and file mandamus.

A few applicants were felled by this oddity, but for the most part, the parties and courts just put up with duplicative filings which caused more work and expense.

With yesterday's passage of SB 1650 by both houses of the Texas legislature, that irritant has been removed. If arbitration is denied a party will be entitled to an interlocutory appeal even if the FAA controls. The bill still has to be signed by the Governor but I can't imagine that there is any reason it will not be signed. The effective date is September 1, 2009.

Although it is certainly a nice fix, now that the law on enforcement of arbitration actions is fairly well settled -- bottom line, the motion to compel should be granted in all but the most unusual circumstances -- it may get very little use.

Still if for no reason other than it just didn't make sense, it is nice to see it cleaned up.

First Obama Supreme Court Nominee - Sonia Sotomayor

President Obama makes the first of what is expected to be multiple Supreme Court nominations by going to a jurist with a long history, Judge Sonia Sotomayor from the 2nd Circuit Court of Appeals. Although he had talked of selecting someone who had not been a judge, instead his choice has a long track record. She was initially appointed to the district bench in 1991 by the first President Bush and then elevated to the appellate court in 1997 by President Clinton.

She fills the 'singles' seat being vacated by Justice Souter, although unlike Souter she is divorced. Although I have not checked all the biographies, I believe if confirmed she will be the only current justice who has served on the trial bench. (Justice Souter had also served on a state trial bench).

Given her long judicial history, her confirmation hearings will no doubt be full of talk about various decisions. A quick search of the BNA labor and employment library shows more than 100 labor and employment opinions in cases heard by Justice Sotomayor.

Although Judge Sotomayor was part of the 3 judge panel that affirmed the district court's opinion in the New Haven police department case which will be decided this term by the Supreme Court, she did not author an opinion. She also voted against hearing the case en banc.

Here is a first quick list of opinions that Judge Sotomayor has authored in employment law cases on the 2nd Circuit.

2nd Circuit opinions:

1. Singh v. City of New York, 524 F.3d 361 ( 4/29/08) - An FLSA case where the Court affirmed a district court opinion denying a claim for commuting time. There is a discussion of de minimis time. Relying on 2nd Circuit precedent that requires three factors to be considered: "(1) the practical administrative difficulty of recording additional time; (2) the size of the claim in the aggregate; and (3) whether the claimants performed the work on a regular basis." Although it is not always a winner for the employer, this time it was.
2. Rolon v. Henneman, 517 F.3d 140 (2nd Cir. 2/25/08). Affirmed a finding that a police chief had absolute immunity for his testimony in a disciplinary proceeding even if it was perjury.
3. *Hankins v. Lyght, 483 F3d 163 ( 2/16/06). Judge Sotomayor dissented from a decision sending an age discrimination case back to the district court to consider the effect of the Religious Freedom and Restoration Act. She would have found the plaintiff waived raising the RFRA and affirmed the district court's dismissal of the age discrimination claim under the ministerial exception.
   
4. Moore v. Consolidated Edison Co., 409 F. 3d 506 (6/2/05) - Affirmed denial of a temporary injunction in a case brought by a terminated employee.
5. *Washington v. County of Rockland, 373 F.3d 310 (6/24/04). Affirmed summary judgment in a racial discrimination and retaliation case brought by corrections officers.
   
6. Clarett v. National Football League, 369 F.3d 124 (5/24/04). Reversed a district court holding that would have allowed Ohio State football player Maurice Clarett to enter the NFL draft early.
7. Williams v. R.H. Donnelley Corp. 368 F.3d 123 (5/13/04). Affirmed district court summary judgment in discrimination case.
8. EEOC v. J.B. Hunt Transport, Inc., 331 F.3d 69 (2/5/03). Dissented to the upholding of a summary judgment for a defendant in an ADA perceived as case.
9. Higgins v. Metro-North R.R. Co., 318 F.3d 422 (1/28/03). Concurred in upholding an FELA summary judgment motion for the defendant employer. She would have applied a different test from the majority, but reached the same result.
10. Brown v. Parkchester South Condominiums, 287 F.3d 58 (4/12/02). Reversed a district court dismissal of a discrimination claim and remanded for an evidentiary hearing on whether or not the filing deadline should be equitably tolled.
11. Martens v. Thomann, 273 F.3d 159 (11/20/01). Appeal in a class action case sorting out a number of procedural issues, including a motion to reassign the case to a different district judge which was denied.
12. Leventhal v. Knapek, 266 F.3d 64 (9/26/01). Upheld summary judgment ruling against a government employee's claim that his privacy rights were violated during a search of his computer.
13. Raniola v. Bratton, 243 F.3d 610 (3/19/01). Reversed a trial court's grant of a judgment as a matter of law in a discrimination case.
14. White v. White Rose Food, 237 F.3d 174 (1/10/01). Reversed a trial court's ruling against an employer after a bench trial in a §301 case.
15. Parker v. Columbia Pictures Industries, 204 F.3d 326 (1/28/00). Reversed trial court's summary judgment for employer in ADA case.
16. Cruz v. Coach Stores, 202 F.3d 560 (1/20/00). Reversed summary judgment for employer on harassment claim, but affirmed summary judgment for discrimination and retaliation claims.
17. Neilson v. Colgate-Palmolive Co. , 199 F.3d 642 (12/2/99). Dissented from opinion affirming a trial court's appointment of a guardian ad litem and approving settlement of case. Would have found trial court did not give due process before appointing guardian ad litem.
18. Norville v. Staten Island University Hospital, 196 F.3d 89 (11/2/99). Affirmed summary judgment for employer on race and age claims, but reversed jury verdict in favor of employer on ADA claim because court improperly charged jury on that issue.

Before being appointed to the 2nd Circuit, Judge Sotomayor served as a district court judge on the Southern District of New York. In her six years she had a number of employment law cases with written decisions. BNA's Labor and Employment Law Library alone has approximately 30 such decisions. A good number, but not all, have also been reported in the official reporter systems.

District court decisions (all FEP, AD, WH and LRRM Case citations require a BNA subscription $) and are from the Southern District of New York.

1. Greenbaum v. Svenska Handelsbanken, 979 FSupp 973, 75 FEP Cases 265 (9/23/97). Jury trial of gender discriminination under Title VII and New York state law. The jury awarded plaintiff $320,000.00 in back pay and $1,250,000.00 in punitive damages. Court order entering judgment for those amounts but denying pre-judgment interest, reinstatement and front pay were denied.
2. Greenbaum v. Svenska Handelsbanken, 998 FSupp 301, 79 FEP Cases 635 (3/6/98). Attorneys' fee award in case with large punitive damages award. Reduced hourly rate of one attorney from $325 to $250 and disallowed certain travel expenses noting, "there is no reasonable explanation, other than nepotism, for Ronald Sapir to have chosen his brother, whose office is so distant from Manhattan, when equally experienced employment discrimination lawyers are available in New York City." Did not grant lodestar enhancement as requested by plaintiffs.
3. Greenbaum v. Svenska Handelsbanken, 26 F.Supp. 649, 78 FEP Cases 1198 (11/12/98). On motion to re-consider reverses earlier holding that damages under Title VII were limited to $50,000 and increased to $500,000. Turned on how employees are counted and was based on 2nd Circuit decision subsequent to original opinion. In the opinion, Court noted that it had earlier affirmed a punitive damage award of $1,250,000 under the New York state discrimination statute.
4. Bartlett v. NYS Board of Law Examiners, 970 F.Supp 1094, 6 AD Cases 1766 (7/3/97). Suit by individual seeking accommodation under the ADA to take the New York Bar. In the opinion the Court noted:

   This case, tried to the bench in 21 days of testimony accompanied by exhibits and briefs aggregating to more than 5000 pages, principally devolves to the meaning of a single word-- substantially--as used in the Americans with Disabilities Act (the “ADA“), 42 U.S.C. §§12101-12213 (1995) and the Rehabilitation Act, 29 U.S.C. §§701-796 (1985) (“Section 504“ or the “Rehabilitation Act“). Both Acts define a disability as “a physical or mental impairment that substantially limits one or more of“ an individual's “major life activities.“ 42 U.S.C. §12102(2)(A) (1995 Supp.); 29 U.S.C. §706(8)(B) (1996 Supp.) (emphasis added).

   At the conclusion, the Court ordered the following accommodations if Bartlett took the bar again:

   (1) double time over four days;

   (2) the use of a computer;

   (3) permission to circle multiple choice answers in the examination booklet; and

   (4) large print on both the New York State and Multistate Bar Examinations.

5. Bartlett v. NYS Board of Law Examiners, 2 F.Supp2d 388, 8 AD Cases 996 (9/14/98). On motion for reconsideration by defendant, explains her consideration of reliance on the major life activity of "working" under the ADA. With respect to motion for sanctions, Judge Sotomayor wrote: "Because I find that defendant's motion, while perhaps in poor judgment, is not frivolous, I hereby deny plaintiff's motion for sanctions under Rule 11."
6. Seepersad v. D.A.O.R. Security Inc., 83 FEP Cases 1056 (8/12/98). Finds factual issue exists as to whether employer reasonably responded to sexual harassment complaints and thus denies employer's motion for summary judgment.
7. Lanahan v. The Mutual Life Ins. Co., 15 F.Supp2d 381, 77 FEP Cases 1289. Grants summary judgment for employer in age discrimination case. Age related comment by manager who terminated employee did not evidence corporate policy of termination at 55.
8. Realite v. Ark Restaurants, 7 FSupp2d 303, 4 WH Cases 2d 1207 (5/19/98). Reaffirms order granting conditional class certification and sending of notice in FLSA collective action.
9. Bloomingdale's v. SEIU Local 32E, 158 LRRM 2379 (5/7/98). Found arbitrator exceeded his authority in determining arbitrability.
10. A. Terzi Productions v. Local One, 2 FSupp2d 485, 158 LRRM 2550 (4/20/98). Detailed opinion considering viability of causes of action brought by non-union company arising out of picket line misconduct.
11. Archie v. Grand Central Partnership, 997 FSupp 504, 4 WH Cases 2d 783 (3/19/98). Applies FLSA to a drop-in center for homeless. Found liability in a bench trial. The judge wrote:

    The work the plaintiffs performed competed with other business enterprises paying minimum wages. Despite the attractive nature of the defendants’ program in serving the needs of the homeless, the question of whether such a program should be exempted from the minimum wage laws is a policy decision either Congress or the Executive Branch should make. The defendants had the right to apply for an exemption from the minimum wage requirements of the FLSA and the New York Minimum Wage Act, and should have done so. The Court, however, cannot grant an exemption where one does not exist in law.

12. Cartagena v. Ogden Services Corp. , 995 FSupp 459, 83 FEP Cases 357 (3/11/98). Denies motion for summary judgment in national origin discrimination case. Discusses concept of "direct evidence" in the context of prima facie case.
13. Schepis v. Carpenters Local 17, 989 FSupp 511, 157 LRRM 2871 (1/9/98). A case brought by a convicted union official against his union for indemnity for his expenses in his criminal trial was removed to federal court arguing federal question jurisdiction. Court remanded to state court and awarded fees against the Union:

    This case is an appropriate one for the granting of fees and costs. The Union removed the case solely on the basis of LMRDA §501, despite the Second Circuit's recent and unambiguous determination in Doyle v. Kamen-kowitz that §501 provides union officials with no federal cause of action for reimbursement of their criminal defense costs. 114 F.3d at 375. Moreover, both the Court's holding in Doyle and the disclaimer in LMRDA §603(a) made it crystal clear that plaintiffs are free to pursue such claims on alternative state law grounds. Most charitably, the Union failed to consult Doyle before filing its removal notice. More likely, however, is that defendant understood that Schepis had no federal claim to reimbursement under §501(b), and for that very reason tried to recast Schepis’ state law claims as federal ones, to set them up for dismissal. The Union's argument under LMRA §301 was equally contrived and raised only as an afterthought in opposing remand. Under these circumstances, Schepis is entitled to costs and reasonable attorney's fees in connection with this motion.

14. Baba v. Japan Travel Bureau, 75 FEP Cases 1283 (12/30/97). Re-affirms order dismissing pro se plaintiff's Title VII case because of "repeated refusal to comply with the Court's discovery orders."
15. Baba v. Japan Travel Bureau, 67 FEP Cases 276 (1/30/95). Dismisses suit by pro seplaintiff against the EEOC.
16. Baba v. Japan Travel Bureau, 67 FEP Cases 278 (1/30/94). Dismisses case against New York State Division of Human Rights brought by pro se plaintiff.
17. Hoffman v. Sbarro, Inc., 982 FSupp 249, 4 WHCases2d 335 (10/23/97). Grants motion for notice in FLSA collective action and denies defendant's motion for summary judgment as premature.
18. Taylor v. NYC Transit Authority, 75 FEP Cases 366 (10/7/97). Grants summary judgment in same-sex sexual harassment case against a pro se plaintiff.
19. Gorwin v. Local 282, 156 LRRM 2896 (4/1/97). Motions for summary judgment filed by both parties in a fair representation case were denied.
20. Heaning v. NYNEX, 945 F.Supp. 640, 154 LRRM 2336 (11/13/96). Plaintiff's claim that his termination for placing offensive advertisement in "Swinging Times" was pre-empted by §301 of the Labor Management Relations Act.
21. Black v. NYU Medical Center, 71 FEP Cases 266 (5/24/96). Case for pay equity brought by medical center faculty member. Dismissed Equal Pay Act claim but found Title VII claim was timely brought.
22. EEOC v. Doremus Co., 921 F.Supp 1048, 69 FEP Cases 449 (10/26/95). Denied employer's motion for summary judgment in age discrimination case. Holds that where factual evidence of pretext is shown, no requirement to show acts were based on discriminatory animus.
23. Silverman v. MLBPRC, 880 F.Supp 246, 148 LRRM 2922 (4/3/95). The major league baseball case referred to in President Obama's introduction of Judge Sotomayor.
24. Local 300 v. U.S. Postal Service, 149 LRRM 2634 (11/21/94). Found that court lacked jurisdiction over complaint by union because of its failure to resort to grievance-arbitration procedure of national bargaining agreement.
25. Corporate Printing Co. v. Union No. 6, 147 LRRM 2918 (7/14/94). Court affirms arbitration award against employer.
26. Modeste v. Local 1199, 850 F.Supp 1156, 147 LRRM 2596 (1/25/94). Case brought by non-strikers who alleged they were abused by other members of Local 1199 during a strike. Certain claims were dismissed and others remanded to the state court.
27. Zveiter v. Brazilian Superintendency, 833 F.Supp 1089, 68 FEP Cases 1429 (10/14/93). Court denies employer's motion for summary judgment in sexual harassment case. Also has issues on validity of release and Foreign Sovereign Immunities Act.
28. McNeil v. Augilos, 831 F.Supp 1079, 66 FEP Cases 789 (831 F.Supp. 1079). An interesting case brought by an English speaking nurse because her fellow nurses spoke in Tagalog. As introduced by Judge Sotomayor:

    At the heart of this action are the allegations by pro se plaintiff Juanita McNeil, an English-speaking African-American, that Filipina-American nurses spoke Tagalog in her hospital workplace in order to isolate and harass her, and that their communication in Tagalog impeded her ability to perform her job effectively. The questions in this case are troubling, and the issues and problems are likely to become more pervasive as our society grows increasingly multiracial and polyglot. There is no simple solution, for just as a workplace English-only policy potentially violates the rights of non-English speakers, plaintiff here contends that allowing co-workers to communicate in a foreign language violates her rights, as a native English speaker.

    The pro-se plaintiff's motion for summary judgment was denied, but she was permitted to move for appointment of pro bono counsel.
29. Fisher Scientific Co. v. New York City, 812 F.Supp 22, 147 LRRM 2892 (1/29/93). Court refused to enjoin city counsel from considering a resolution that expressed a negative view about the company's labor negotiations with Teamsters Local 810.
30. James v. NYS Office of Mental Health, 63 FEP Cases 672 (1/13/93), dismissed pro se plaintiff's case because his failure to file with state FEP agency within 300 days deprived the court of jurisdiction to hear his claim.
    

My first read indicates a judge who does seem to merit the comments that have been made so far about her intelligence.

Although I have only skimmed the large majority of these opinions, nothing jumps out as markedly out of the mainstream. I welcome comments about that conclusion from readers of the blog.

One thing that is interesting is the rather large number of traditional labor decisions which Judge Sotomayor has written in her time on the bench. Perhaps not all that unusual for the jurisdictions in which she sits, but it at least indicates a familiarity with the subject matter that would not be true of all with similar experience in less organized parts of the country.

*Update: As I find other opinions by Judge Sotomayor that fit within the labor and employment law field I will add them to the above list, but do so in bold for anyone who comes back for a 2nd look at the list.