Protection from Pregnancy Discrimination Expands as Fifth Circuit Court of Appeals Determines Lactation Discrimination is Unlawful Sex Discrimination

In a recent opinion, the Fifth Circuit Court of Appeals has ruled that an employer’s decision to terminate a woman because she is lactating or expressing milk constitutes an actionable form of sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).

The case, EEOC v. Houston Funding, II, involved a mother who, in December of 2008, took leave from work for the birth of her child.   Before returning to work, the mother advised her supervisor that she was breastfeeding and asked whether it would be possible for her to use a breast pump at work.  The supervisor, in turn, posed the question to Harry Cagle, the company’s Limited Partner.  Mr. Cagle responded with, “No.  Maybe she needs to stay home longer.”

On February 17, 2009, the employee called Mr. Cagle to report that she had been medically cleared to return to work.  During this same conversation, she again mentioned that she was lactating and asked whether she could use a back room to pump milk.  According to the employee, Mr. Cagle paused at length before responding that her position had been filled.  On February 20, 2009, the company mailed a letter, dated February 16, 2009, to the employee stating that she had been terminated for abandoning her job.

The EEOC filed a Title VII lawsuit against Houston Funding alleging that it had discriminated against the employee, based on her sex, including her pregnancy and childbirth, by terminating her employment.  Houston Funding moved for summary judgment on grounds that Title VII does not prohibit “breast pump discrimination.”  The District Court for the Southern District of Texas granted the motion, finding that firing a person because of lactation or breast pumping is not sex discrimination.

The Fifth Circuit Court of Appeals reversed the District Court.  In so doing, the Court pointed to the Pregnancy Discrimination Act, which amended Title VII to make clear that sex discrimination includes “pregnancy, childbirth, or related medical conditions.”  The Court then concluded that lactation is a medical condition related to childbirth.  The Court also held that terminating a woman because she is lactating or expressing milk states a cognizable Title VII cause of action.  Without detailed discussion, the Court additionally concluded that ample evidence had been produced for finding the employer’s offered reason for the termination pretextual.  Consequently, the lower court ruling was vacated and the case remanded to the District Court.

The ruling sends a clear message that protection from pregnancy discrimination expands beyond the period of pregnancy and childbirth.  Women are equally protected from discrimination on the basis of medical conditions related to childbirth.

Finally, it should be noted that the Patient Protection and Affordable Care Act (“PPACA”), which was signed into law on March 23, 2010, added still additional statutory protections to breastfeeding mothers.  It did so by amending the Fair Labor Standards Act to require covered employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”  Consequently, an employer who discriminates against a woman for expressing milk in the workplace today would face potential exposure under both the FLSA and Title VII.

As the above case law and statutory developments reflect, pregnancy and its aftermath continue to present significant legal issues in the workplace.  If you are confronting uncertainty with respect to legal rights and/or obligations arising from a current or recent pregnancy, you should contact experienced legal counsel for assistance.

North Carolina Federal Court Dismisses Wrongful Discharge Claims Under Both ADEA and North Carolina Equal Employment Practices Act

In previous posts, we have discussed the exacting proof that is necessary in order for a claim of age discrimination to prevail.  A United States District Court case from the Western District of North Carolina, Darnell v. Tyson Foods, Inc., demonstrates well the proof challenges an age discrimination plaintiff faces. 

As we explained in a previous post, the Court dismissed this case short of trial in part because it determined that a company’s decision to require a 63 year-old, forty year veteran employee to change to a third shift position, immediately after his return from prostate surgery, was not an adverse employment action.  The Court therefore determined that the plaintiff could not establish the second of four essential elements of a prima facie case of age discrimination.

In its decision, the Court also found that the plaintiff failed to establish the fourth and final element of the required prima facie case of age discrimination.  Recall from our prior posts that this fourth element requires a showing that the employment position from which the plaintiff was terminated remained open or that the plaintiff was replaced by a substantially younger individual.

In this case, the plaintiff was eventually replaced by a 57 year-old man.  In other words, the plaintiff’s replacement was only six years younger.  The Court therefore assessed whether a six year difference in age was sufficient to constitute replacement by a substantially younger individual.  After noting that the Fourth Circuit Court of Appeals (which is the Circuit that oversees North Carolina federal district courts), the Court found that sister circuits have generally found age differences of less than ten years insufficient to satisfy this prima facie case element.  The Court then determined, “[a]bsent any evidence to suggest discrimination, the six year age difference in this case is not sufficient by itself to satisfy the substantially younger requirement.”  Consequently, the plaintiff’s prima facie case failed for this further reason.

In the absence of a prima facie case of age discrimination, the plaintiff’s primary claim under the Age Discrimination in Employment Act (“ADEA”) was dismissed via summary judgment.

Finally, the plaintiff had also asserted an alternative claim for wrongful discharge under North Carolina state law.  The plaintiff based this claim on N.C. Stat.Gen § 143–422.2, a statute recognizing that it is against North Carolina public policy for an employer of 15 or more to discriminate, “on account of race, religion, color, national origin, age, sex or handicap.”  The statute is found in North Carolina’s Equal Employment Practices Act.  In its opinion, the Court made short work in dismissing this alternative claim for the same reasons cited in dismissing the federal age discrimination claim.  In this way, the Court concluded, as have other federal courts to consider the issue, that the North Carolina public policy claim is subject to the same analysis and proof standards as the analogous federal law cause of action.

Darnell demonstrates well the proof difficulties that claims of age discrimination face.  In addition, the case confirms that North Carolina public policy claims are hardly a panacea for claimants.  Although claims pursued under North Carolina’s Equal Employment Practices Act offers certain advantages, such as a longer limitations period and the option of foregoing EEOC administrative review, these claims are ultimately subject to the same substantive analysis and demanding proof requirements as claims pursued under the Age Discrimination in Employment Act.

Plaintiff in Race Discrimination Lawsuit Responds to the City's Motion for Summary Judgment

For those of you who live in the Triad area of North Carolina, you may recall that in 2005, the City of Greensboro police department was fraught with allegations of internal racial discrimination.  The police chief at the time was David Wray.  Mr. Wray ultimately resigned in the face of the racial discrimination allegations.  

Somewhat ironically, Mr. Wray then filed a discrimination lawsuit against the City of Greensboro in 2009.  Mr. Wray alleges that the City of Greensboro violated his rights under the Civil Rights Acts of 1866 and 1870, 42 U.S.C. § 1981.  In short, Mr. Wray alleges the city discriminated against him based on his race (white) in an effort to appease a segment of the African American community by publicly stripping him of his authority and forcing him out of office.  A copy of the complaint can be viewed by clicking here.

Our February 21, 2013 post discussed the City of Greensboro's motion for summary judgment in the case against it by former police chief, David Wray.  David Wray recently submitted his brief in response to the City's motion.  As promised, a discussion of Mr. Wray's response follows.

As expected, Mr. Wray contends that there are genuine issues of material fact for jury determination as to whether he was constructively discharged because of his race and, therefore, summary judgment is not appropriate.  A summary of the factual contentions he makes to support his claim of discrimination follows below.

Mr. Wray stresses that he began employment with the Greensboro Police Department ("GPD") in March of 1981 and was promoted to Chief of Police in July, 2003; the two chiefs prior to Mr. Wray were African-American.  Mitchell Johnson was the Assistant City Manager at the time Mr. Wray was promoted and allegedly led the police chief selection at that time.  Mr. Wray contends that the process of selecting him as police chief involved some discussion of his race.  Mr. Wray also points to Mr. Johnson's evaluation of him in November, 2004 when Mr. Johnson noted that "[a]s the first Caucasian Chief in many years David and his leadership teams actions are observed to the minutest detail."
 

Mr. Wray alleges that shortly thereafter, Ms. Miles and Mr. Johnson presented him with two options: 1) be terminated and lose substantial benefits that Mr. Wray had earned over the course of his career, or 2) resign and retain certain benefits in excess of what he would otherwise have received if he made certain admissions and refrained from defending himself.

Mr. Wray maintains that he resigned without the enhanced benefits.  Mr. Bellamy was officially promoted to the position of Police Chief shortly thereafter.  As previously discussed, in 2005, the City of Greensboro police department, under Mr. Wray's leadership, was fraught with allegations of internal racial discrimination.  Allegedly, Mr. Wray used an internal affairs unit to secretly investigate numerous black officers for alleged misconduct.  Furthermore, it was reported that a binder known as the “Black Book” allegedly contained photographs of black police officers.  As reported by NPR, there were rumors that crime suspects were sometimes promised more lenient treatment if they could identify black officers in the “Black Book” for misconduct.  Mr. Johnson became the City Manager in July, 2005, during the height of the "Black Book" controversy. 

Mr. Wray maintains that his actions were appropriate.  However, Mr. Wray alleges that Mr. Johnson succumbed to pressure from the African-American community insisting that Mr. Wray be replaced.  Mr. Wray contends that Mr. Johnson held a meeting with an attorney representing several African-American officers, the then City Attorney, Linda Miles, and the then Assistant Police Chief, Tim Bellamy.  Mr. Wray alleges that at that meeting, Ms. Miles and Mr. Johnson actively solicited information adverse to Mr. Wray.  Thereafter, Ms. Miles' office conducted an investigation of Mr. Wray and engaged an outside investigation firm to conduct its own independent investigation.

Mr. Wray contends that Mr. Johnson disregarded both the internal staff report that found no irregularities or discrimination in connection with the issues raised by the African American officers and the report ordered by the city and conducted by nationally recognized law enforcement professional Gil Klienlmecht that did not find irregularities in the department.  

Thereafter, Mr. Wray alleges that Mr. Johnson removed certain personnel duties from him, immediately reporting same in the local media.  Shortly thereafter, Mr. Wray contends that Mr. Johnson suspended him and took the "unprecedented step" of locking him out of his office.  Mr. Johnson then promoted Tim Bellamy, an African-American, to the position of acting Police Chief.
 
Mr. Wray also contends that a number of African-American officers complained that they were discriminated against because of their race during Chief White's and Chief Bellamy's respective tenures.  Mr. Wray contends that despite such complaints against those African-American chiefs, they were not stripped of any personnel duties, nor were they locked out of their offices.  In short, Mr. Wray alleges that he was treated differently than African-American police chiefs under similar circumstances.   

Mr. Wray also alleges that during the process for selection of his successor many publicly made comments explicitly or impliedly recognized race as a significant or qualifying factor to the position.  He also maintains that the City advertised the position in the National Organization of Black Law Enforcement Executives and the National Forum of Black Public Administrators.

Both the City and Mr. Wray's legal briefs correctly note that the ultimate question in every employment discrimination action involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.  Mr. Wray, however, stresses that unless no rational fact finder could conclude that the employer's action was discriminatory, then his prima facie case together with his presented evidence of pretext is sufficient to defeat the City's motion for summary judgment.  

The City of Greensboro will have an opportunity to reply to Mr. Wray's brief, so it will still be some time before the Court rules on the City's motion for summary judgment.  We will discuss the City's reply once it is filed, so please check back.  

The complex factual and legal issues presented by this case are typical of employment discrimination matters, which is why it is of the utmost importance to engage experienced counsel to prosecute or defend employment litigation matters.  Please feel free to contact me directly at (336) 333-6375 to discuss this post or other North Carolina employment law matters. For more information about my Greensboro law firm of Sharpless &Stavola, please visit our website at www.sharpless-stavola.com.

 

North Carolina Federal Court Dismisses Age Discrimination Case Finding that Reassignment of 40 year Veteran Employee to Night shift Duty Does Not Constitute Adverse Employment Action

Our last post discussed the growing frequency with which age discrimination cases are being filed and the basic frameworks under which an age discrimination case are analyzed.  As explained, age discrimination cases are frequently difficult cases for an employee to win, in part because of exacting proof standards that the federal courts have imposed through an extensive body of case law.

One such case from the Western District of North Carolina demonstrates the proof difficulties well.  Darnell v. Tyson Foods, Inc. was an age discrimination suit brought by a longtime employee of the Tyson Foods processing plant in Monroe, North Carolina.  Plaintiff James Darnell had worked at this plant since 1969. He was 63 at the time of the events at issue.

For years, Mr. Darnell had worked as a maintenance supervisor during the plant’s 6am to 5pm shift.  As part of costs reduction measures, the plant eliminated a third shift maintenance supervisor position.  This, in turn, lead to an increased rate of equipment failures and decreased plant productivity.  

In 2010, the company arranged for Dennis Joy, a Maintenance Specialist, to conduct a plant inspection and to develop a performance improvement plan.  Mr. Joy concluded, in part, that a third shift maintenance supervisor was needed and that Mr. Darnell was the best candidate for the position.  Coincidentally, Mr. Darnell went out for prostate surgery on April 14, 2010, and returned eight days later.  Upon Mr. Darnell’s return, Mr. Joy, the Plant Manager, and the Human Resources Manager met with Mr. Darnell and asked him to accept the third shift position.  Mr. Darnell refused, saying, “There ain’t no way in hell you are going to kill me the last couple of years that I plan on working here.”  Mr. Darnell later requested two weeks of vacation to consider his options.

On May 10, 2012, Mr. Darnell again declined the move.  He was then given two alternative options of working a hybrid shift from 3:00am to 1:00pm or of continuing his existing schedule at a lower hourly rate of pay.  Mr. Darnell refused these options as well.  The parties discussed the same three options two days later and, again, Mr. Darnell refused each.  Mr. Darnell, concluding that a stalemate existed, left the plant and never returned.  He was eventually replaced by a 57 year-old replacement.

Mr. Darnell filed an EEOC Charge of Discrimination and, later, a lawsuit alleging age discrimination. 

As our last post explained, Mr. Darnell, in order to make a prima facie showing of discrimination, had to demonstrate that: (1) he is a member of a protected class; (2) he suffered adverse employment action; (3) he was performing his job duties at a level that met his employer's legitimate expectations at the time of the adverse employment action; and (4) the position remained open or he was replaced by a substantially younger individual.  The parties did not dispute the Plaintiff’s satisfaction of the first and third elements.  The Defendant did contest the remaining elements and moved for a summary judgment on the basis that these elements could not be established as a matter of law.

In most discrimination cases, there is usually no dispute about whether adverse employment action occurred.  Usually, it is the occurrence of adverse employment action that triggers the case in the first place.  The Court in this case, however, demonstrated how even this element requires exacting proof.

In addressing the question of whether the reassignment to a night shift position constituted an adverse employment action, the Court explained that “An adverse employment action is a discriminatory act which adversely affects the terms, conditions or benefits of the plaintiff's employment.”  In this case, the Defendant emphasized that the reassignment would not result in a decrease in pay or benefits, not did it constitute a demotion or reduction in job responsibilities.  The Plaintiff, however, cited two principle objections to the shift change:  (1) that he has difficulty sleeping during the day and (2) that the Defendant ignored his seniority in assigning him the overnight shift.  

The Court, while recognizing that working an overnight shift can constitute a legitimate burden to a person accustomed to working normal hours did not find the shift change to constitute a significant change in employment status, which is necessary to establish the adverse employment action element.  In further support of its conclusion, the Court cited to Fourth Circuit precedent for the proposition that “a person's subjective evaluation of an employer's decision is not sufficient, standing alone, to constitute an adverse action.”

In the end, the Court determined that the Plaintiff failed to offer evidence to support a finding that the move was adverse on any objective level.  Consequently, the Court agreed that the Plaintiff failed to establish the second required element of the prima facie case of age discrimination.

The ruling on this initial issue seems harsh.  Requiring a 63 year old man, who has worked day shift hours for some forty consecutive years, to suddenly convert to third shift hours probably would strike the average, reasonable person as a significant, adverse change in employment status.  Indeed, such a dramatic change in work conditions arguably turns a person’s life upside down in several respects.  It requires adaptation and shifts in lifestyle that a 63 year old person recovering from serious health conditions is arguably not situated to make.  Nevertheless, the Court determined, without the assistance of a jury, that such a marked change in employment status was not an objectively adverse employment action.

Because this one element of the prima facie case was, in the opinion of the Court, unsatisfied, the entire case failed as a matter of law.  Note, however, that the Court’s opinion provided additional analysis, which further demonstrates the proof difficulties posed by age discrimination cases.  We will discuss these additional aspects of the ruling in our next post.  Please contact us if you have questions about the ruling in the meantime.

Age Discrimination Cases on the Rise in North Carolina Even as Courts Require Exacting Proof

Claims of workplace age discrimination have steadily increased in North Carolina and the nation at large in recent years.  According to EEOC filing statistics, there were fewer than 20,000 age discrimination charges filed during each of years 1997 through 2007.  There have been more than 22,000 age discrimination charges filed in each year since 2007, with more than 23,000 age discrimination charges filed in three of those five years. 

The upward trend is likely due to several factors.  For example, the combination of an expanding number of elderly workers from the large baby boomer population and a sputtering U.S. economy, which continues to result in downsizing by employers, has resulted in a large field of displaced older workers.  A changing work environment, which is increasingly reliant on relatively new technology and associated skills, also renders younger workers more attractive than veteran employees in some instances.  For these and other reasons, the growing incidence of age discrimination claims is likely to continue in coming years.

There are two basic methods to proving a case of age discrimination.  First, a plaintiff can present direct evidence of discrimination.  Direct evidence is evidence that proves discriminatory motive without the need for inference.  A classic example would be if an employer fired an employee and said, “I am firing you because you are too old.”  A manager’s note or email stating, “Smith is too old for the job; we need someone younger,” would qualify as direct evidence.  Rarely is such direct, “smoking gun” evidence available in this day and age.

The second method for proving discrimination is called the McDonnell-Douglas burden-shifting paradigm.  It involves a three step process.  First, the plaintiff must establish what is called a prima facie case of discrimination.  If this can be done, the employer must then come forward with a legitimate, non-discriminatory reason for the decision.  In response, the plaintiff must then present evidence sufficient to find the employer’s explanation is a pretext, or false excuse, and sufficient to conclude that discrimination was the true motive.

In order to establish the opening prima facie showing of discrimination, a plaintiff, must demonstrate that: (1) he is a member of a protected class, (i.e., over age 40); (2) he suffered adverse employment action; (3) he was performing his job duties at a level that met his employer's legitimate expectations at the time of the adverse employment action; and (4) the position remained open or he was replaced by a substantially younger individual. 

In the age discrimination context, the prima facie case often times is not difficult to establish. In fact, older workers frequently meet all of the elements as a mere function of their age and experience.  A worker over 40 satisfies the protected class requirement.  An older worker who has been with an employer for many years presumably has been meeting the employer’s expectations for some time.  Additionally, the odds are that an older worker will be replaced by someone younger.  Thus, if a veteran employee suffers an adverse employment action, he or she is well on the way to satisfying the prima facie case of discrimination.

Nevertheless, successfully proving age discrimination under the McDonnell-Douglas framework is very difficult for several reasons.  For one, the vast majority of North Carolina workers are employed at-will, meaning the employer may fire the employee for any reason so long as it is not an illegal one.  The employer need only respond to the prima facie case of age discrimination by producing a single, legitimate, non-discriminatory reason for the challenged action.  Courts have repeatedly emphasized that the offered reason need not be a wise one, so long as it was a non-discriminatory reason that the employer truly believed.  The courts simply will not second guess the business wisdom of an employer’s personnel decision. 

There are other considerations that make age discrimination claims difficult to win.  The courts, for instance, have recognized that only the plaintiff’s performance at the time of the decision is relevant to assessment of the discrimination claim.  As such, an employee with twenty more years of stellar work performance could still fail to prove his case if work performance were poor at the time of the challenged decision.  Perhaps the most difficult proof aspect is that the plaintiff must ultimately prove that the employer was motivated by discriminatory intent.  Intent is a very difficult element to prove and requires skillful, experienced counsel well-versed in effective methods for proving offered excuses pretextual and developing persuasive evidence of discriminatory animus.  Overcoming the at-will employment presumption also demands skillful representation.  Frequently, we see age discrimination claims pursued by unrepresented, pro se litigants.  Such claims are almost sure to fail given the proof difficulties involved.

In fact, perhaps because of the growing number of age discrimination claims, courts have become increasingly demanding and exacting in the level of proof required of age discrimination plaintiffs.  A recent case from the Western District of North Carolina demonstrates this tendency of the courts, as well as the proof difficulties outlined above.  We will discuss this recent case in our next post as we continue our discussion of workplace age discrimination.