Category Archives: Result for Employer

Federal Cases (but not US Supreme Court), Fourth Circuit, Hostile work environment, Medical Industry Litigation, Result for Employer, Sexual harassment, Summary Judgment, Title VII of the Civil Rights Act of 1964

Can you be sexually harassed behind your back?

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It might be obvi­ous, but it seems a bit dif­fi­cult to win on a claim for sex­u­al harass­ment where all of the harass­ment occurs behind your back (and by “behind your back”, I mean sit­u­a­tions where the harass­ing behav­ior occurs when the com­plain­ing employ­ee is not phys­i­cal­ly present to expe­ri­ence or hear what is happening).

The Fourth Cir­cuit Court of Appeals addressed this issue in Pueschel v. Peters, 577 F.3d 558 (4th Cir. 2009), in a unan­i­mous deci­sion writ­ten by Judge Roger Gre­go­ry in which Judges M. Blane Michael and Robert Bruce King joined.

The Fourth Cir­cuit did­n’t have much dif­fi­cul­ty reach­ing the con­clu­sion that, for any claim alleg­ing a hos­tile work envi­ron­ment (includ­ing sex­u­al harass­ment), you can’t suc­ceed if all of the mis­con­duct about which you com­plain occurred at work when you were not at work.

Twenty-Eight Years of Litigation!!!

This case grows out of an incred­i­bly long his­to­ry of lit­i­ga­tion (includ­ing sev­er­al dif­fer­ent law­suits and appeals (some of which were suc­cess­ful)) filed by Ms. Pueschel against her employ­er, the Fed­er­al Avi­a­tion Admin­is­tra­tion (“FAA”). The lit­i­ga­tion start­ed in 1981 and end­ed with this Fourth Cir­cuit deci­sion in 2009 (I am not kid­ding, and I am not sure this deci­sion marks the end of all of her litigation).

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Arbitration, Result for Employer, WV Human Rights Act, WV Supreme Court

WV Supreme Court Enforces Employment Arbitration Agreement in Clites v. Clawges, 10–13-09

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10–13-09: The West Vir­ginia Supreme Court addressed the enforce­abil­i­ty of employ­ment arbi­tra­tion agree­ments in State ex rel. Clites v. Clawges, 224 W. Va. 299, 685 S.E.2d 693 (2009) (opin­ion at Find­law’s web site). This Clites deci­sion is dis­cussed in my chart of West Vir­ginia Supreme Court deci­sions.

Clites Goes to Work for TeleTech and Signs an Arbitration Agreement

WV Capitol Building The plain­tiff, Jill Clites, went to work for TeleTech in Octo­ber 2004 as a Cus­tomer Ser­vice Rep­re­sen­ta­tive. Dur­ing new employ­ee ori­en­ta­tion, Clites met with a human resources rep­re­sen­ta­tive for about 90 to 120 min­utes, dur­ing which time Clites reviewed and signed a large num­ber of doc­u­ments relat­ed to the ori­en­ta­tion. In the record before the West Vir­ginia Supreme Court, there were dis­putes over whether indi­vid­ual doc­u­ments were dis­cussed with Clites and whether she was required to sing all the doc­u­ments dur­ing the ori­en­ta­tion ses­sion, but it appears that dur­ing that ses­sion Clites signed an arbi­tra­tion agree­ment which TeleTech required of most or all new employees.

Clites remained employed at TeleTech until July 12, 2007, when she was ter­mi­nat­ed. She then filed suit for sex­u­al harass­ment and retal­i­a­tion. Clites alleged she com­plained about the sex­u­al harass­ment, that TeleTech failed to take appro­pri­ate cor­rec­tive action, and that TeleTech retal­i­at­ed against her for the com­plaint by fir­ing her.

Clites Files Suit In West Virginia Circuit Court

Clites filed suit in West Vir­ginia Cir­cuit Court in Mor­gan­town. TeleTech then invoked the arbi­tra­tion agree­ment by fil­ing a motion to dis­miss the law­suit and by fil­ing a sep­a­rate law­suit in fed­er­al court argu­ing that Clites waived her rights to a jury tri­al by sign­ing the arbi­tra­tion agree­ment. In essence, TeleTech argued that Clites gave up her rights to file suit and to a jury tri­al by sign­ing the arbi­tra­tion agree­ment, and that her only rem­e­dy was to file an arbi­tra­tion pro­ceed­ing (with the Amer­i­can Arbi­tra­tion Asso­ci­a­tion) pur­suant to the arbi­tra­tion agreement.

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Age Discrimination, Arbitration, Labor Unions, Pending legislation, Result for Employer, US Supreme Court

Arbitration Agreements in Union Contacts are Enforceable; US Supreme Court in Penn Plaza v. Pyett

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4/1/09: The US Supreme Court ruled that “pre-dis­pute arbi­tra­tion agree­ments” in col­lec­tive bar­gain­ing agree­ments (union con­tracts) are enforce­able, in Penn Plaza PLLC v. Pyett, 129 S. Ct. 1456 (2009) (5–4 decision).

This was an age dis­crim­i­na­tion case under the Age Dis­crim­i­na­tion in Employ­ment Act of 1967 (ADEA). The plain­tiff was a mem­ber of a union, and the col­lec­tive bar­gain­ing agree­ment (union con­tract) required sub­mit­ting age dis­crim­i­na­tion claims to bind­ing arbi­tra­tion.

The US Supreme Court had pre­vi­ous­ly ruled, but not in a labor union set­ting, that arbi­tra­tion agree­ments for ADEA claims were enforce­able under the Fed­er­al Arbi­tra­tion Act, 9 U.S.C. § 1 et seq. (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26–33 (1991)). So the real issue in Penn Plaza was whether there would be a dif­fer­ent result because of the union con­tract set­ting and the Nation­al Labor Rela­tions Act.

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Employment policies, Hostile work environment, National origin discrimination, Prompt remedial action, Religious discrimination, Result for Employer, WV Human Rights Act, WV Supreme Court

WV Supreme Court rules that employer’s policy and prompt action protected it against liability; Colgan Air v. WV HRC; 10/25/07

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West Virginia Capitol Building at Night Octo­ber 25, 2007: In Col­gan Air, Inc. v. West Vir­ginia Human Rights Com­mis­sion, 221 W. Va. 588, 656 S.E.2d 33 (1977) the West Vir­ginia Supreme Court addressed claims of harass­ment (based on reli­gion and nation­al ori­gin) and retal­i­a­tion under the WV Human Rights Act, W. Va. Code § 5–11‑1 et seq.

The plain­tiff was a pilot, Rao Zahid Khan, who alleged that his co-work­ers sub­ject­ed him to fre­quent deroga­to­ry and insult­ing com­ments about his nation­al ori­gin and reli­gion (he was Ara­bic). The West Vir­ginia Supreme Court ruled that Col­gan Air (a) was not liable for harass­ment because it had poli­cies and pro­ce­dures pro­hibit­ing harass­ment and took swift and deci­sive action after learn­ing about the harass­ment, and (b) was not liable for retal­i­a­tion because Col­gan Air ter­mi­nat­ed the employ­ee (Mr. Khan) for a legit­i­mate and non-dis­crim­i­na­to­ry reason–he failed to pass a manda­to­ry FAA pro­fi­cien­cy test for pilots.

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Disparate Impact, Equal Pay, Limitations periods, Result for Employer, Sex Discrimination, Title VII of the Civil Rights Act of 1964, US Legislation, US Supreme Court

US Supreme Court rules pay claims must be filed shortly after discriminatory decision; Ledbetter v Goodyear, 5/29/07

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May 29, 2007: In Led­bet­ter v. Goodyear Tire & Rub­ber Com­pa­ny, 550 U.S. 618, 128 S. Ct. 2162 (2007) (Find­Law site opin­ion), the Unit­ed States Supreme Court, in a 5–4 deci­sion, issued an impor­tant deci­sion in a sex dis­crim­i­na­tion case under Title VII of the Civ­il Rights Act of 1964, which sub­stan­tial­ly lim­it­ed the time peri­od avail­able to assert a claim for pay dis­crim­i­na­tion. The Supreme Court affirmed the deci­sion of the Eleventh Cir­cuit in Led­bet­ter v. Goodyear Tire and Rub­ber Com­pa­ny, Inc., 421 F.3d 1169 (11th Cir. 2005).

Ledbetter’s Claims of Sex Discrimination and Lower Pay, and the Trial Result

LillyLedbetter Led­bet­ter filed a charge of sex dis­crim­i­na­tion with the EEOC in 1998 and then lat­er in the year retired. She claimed that, years ear­li­er in her career at Goodyear, male super­vi­sors gave her bad per­for­mance reviews com­pared to what men received. She claimed that Goodyear award­ed rais­es based on those per­for­mance reviews, so that her pay rais­es were reduced as a result of the dis­crim­i­na­to­ry per­for­mance reviews.

Led­bet­ter went to tri­al and per­suad­ed the jury that the per­for­mance reviews, years before she filed her EEOC charge, were dis­crim­i­na­to­ry based on her sex, and the jury found her rights had been vio­lat­ed and award­ed her dam­ages based on her low­er pay­checks through­out her career. The tri­al judge entered a “judg­ment” in Led­bet­ter’s favor based on the jury’s ver­dict. So Led­bet­ter won at tri­al on her sex dis­crim­i­na­tion claim under Title VII. The Eleventh Cir­cuit Court of Appeals threw out the jury ver­dict and tri­al court judg­ment for Led­bet­ter, and entered a judg­ment in favor of Goodyear, based on her fail­ure to file her EEOC charge with­in 180 days of when the per­for­mance reviews had been con­duct­ed. The Unit­ed States Supreme Court affirmed, mean­ing that Goodyear won.

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