News 2003

September 22 : August 28 : August 26 : August 25 : August 8 : July 31 : July 10 : June 24 : June 23 : June 16 : June 5 : January 14

September 22, 2003

  • Election Law
    In a particularly busy day, the Ninth Circuit entered two election frays, first derailing (and then staying its mandate regarding) the California recall vote, and then striking down Washington States' blanket primary system.

    In Southwest Voter Registration Education Project v. Shelley, No. 03-56498 (9th Cir. Sept. 15, 2003), in a 66 page per curium, the Ninth Circuit concluded that the use of Florida-like punch-card ballot machines, slated for removal before the next regular election cycle, by certain counties, would violate the equal protection rights of voters in those counties. Therefore, the Court concluded, the state is enjoined from going forward with its October 7 election. The opinion opens with a brief history of the punch-card ballot and the chad (hanging or otherwise), and stresses the California Secretary of State's decertification of the punch-card machines, which would be used in counties containing 44 percent of the total electorate. Predictably, the Court relied heavily on Bush v. Gore, concluding that the use of this voting system entailed an unacceptable risk that a large number of votes would not be counted. The court rejected the time frame mandated by the California Constitutional for a recall election as an insufficient justification for the holding of the election with such technology.

    In Democratic Party of Washington State v. Reed, 02-35455 (9th Cir. Sept. 15, 2003), the Ninth Circuit struck down Washington's blanket primary system, whereby candidates of all parties appear on the same ballot, and voters may vote for any. Candidates with a plurality of the primary votes would then proceed to the general election. The Ninth Circuit, in an opinion by Judge Kleinfeld, concluded that the system violated the associational and speech rights of each party's members - the ability to put forward the candidate of the party's choosing.

    Fair Housing Act
    In Giebler v. M&B Associates, No. 00-17508 (9th Cir. Sept. 15, 2003), the Ninth Circuit concluded that the Fair Housing Act prohibits an apartment building owner from applying an otherwise evenly-applied minimum income requirement to an HIV-infected individual who does not meet it, where the prospective tenant can produce a non-resident co-signer who does meet the requirement. The FHA tracks the ADA in requiring reasonable accommodation of disabilities impacting a major life activity. 42 U.S.C. 3602(h)(1). The Court concluded that the FHA required the landlord to reasonably accommodate Giebler's disability - not being able to work and earn an income due to his infection. The central dispute in the case was whether requiring the policy to be waived, allowing the co-signatory, was an accommodation, or an outright change in housing policy not required by the FHA. The Court was not troubled by the fact that the necessary effect of its conclusion was not equal, but preferential treatment of the HIV-positive. It dispensed with the stated purpose of the requirement, the prompt payment of rent by an identified individual. The defendant either did not proffer, or the court did not discuss another frequent purpose of such regulations - being able to guarantee tenants a certain financial quality of co-tenants - which the decision undercuts. Ultimately, the Court found the accommodation a reasonable burden on the landlord. Of note, the Court also took issue with a Second and a Seventh Circuit cases holding that the FHA did not require accommodation of an inability to generate income, which may portend a visit to the Supreme Court.

    In Oti Kaga, Inc. v. South Dakota Housing Development Authority, No. 02-1673 (8th Cir. Sept. 15, 2003), the Eighth Circuit took up a challenge brought by a corporation formed by a Native American tribe against the South Dakota housing authority over tax credit applications. Of interest, the Circuit was invited by the corporation to hold that corporations may have racial identifies within the FHA. The Court declined, rather discussing the issue in terms of the prudential standing inquiry. As the corporation had the purpose of acquiring, constructing, and operating rental housing on the tribe's reservation, it had a sufficiently particularized interest in the alleged injury to sue under the statute, representing the interests of those who individually would have a difficult time bringing the action.

August 28, 2003

  • Reverse Discrimination
    A federal district court in Massachusetts has ordered the Boston fire department to hire white applicants passed over in favor of minority applicants with worse scores. The ruling comes in the wake of the First Circuit's conclusion that Boston had achieved its goal of racial parity, and non longer needed to abide by previously ordered racial remediation practices.

    Pledge of Allegiance
    A district court in Colorado has enjoined school officials from requiring students to recite the Pledge of Allegiance. The suit, brought by the ACLU, challenged a new state law enacted on August 9. The judge concluded that the state statute discriminated against teachers by allowing student but not teachers to opt out, and also pitted reciting students against non-reciting students.

    Camera Profiling
    Tampa is phasing out its much-maligned system of using publicly located cameras to scan crowds and compare images against a database of known criminal offenders. Click HERE to read more.

    Sex Discrimination
    In Rowland v. American General Finance, No. 01-2481 (4th Cir. Aug. 12, 2003), the Fourth Circuit applied the Supreme Court's recent decision in Desert Palace v. Costa and sent a Title VII sex discrimination failure-to-promote claim back for retrial after the district court had failed to instruct the jury as to mixed motives.

    In Holly D. v. California Institute of Technology, No. 01-56050 (9th Cir. Aug. 15, 2003), the Ninth Circuit concluded that a suit may be maintained under Title VII where an employee alleges that unwanted sex was coerced by a supervisor by threats of discharge. The plaintiff alleged that for over a year she was forced to engage in unwanted sex by a professor for whom she worked, due to unstated, but rather implied, threats of adverse employment action should she refuse. (In an unfortunate side-note, the Court recounted that the plaintiff preserved proof of the relationship in a manner inspired by "then-current events in the nation's capital.") The Court concluded that a "tangible employment action" occurs when a supervisor conditions continued employment on participation in unwanted sexual activity. However, while concluding that a sufficient hostile work environment claim could be carried, the Court concluded that she failed to create a material question as to the existence of a tangible employment action. Accordingly, Caltech was not strictly liable, and then sufficiently plead a "reasonable care" defense.

    Disabilities Discrimination
    In White v. Ascension Parish School Board, No. 02-30845 (5th Cir. Aug. 13, 2003), the Fifth Circuit concluded that under the IDEA, a school system may elect to offer special education services at a central location not withstanding parents' desire that the services be offered at a neighborhood school. Involvement in a child's IEP does not constitute a right to determine where the IEP will be delivered.

    In Burchett v. Target Corp., No. 02-3902 (8th Cir. Aug. 13, 2003), the Court affirmed a grant of summary judgment where the plaintiff failed to demonstrate that the accommodations offered her were unreasonable. The plaintiff suffered depression, and the employer honored her doctor's recommendations for decreased and flexible work time. The court also held that a negative review, by itself, cannot constitute an adverse employment action.

    Section 1983 & Due Process Rights
    In Galdikas v. Fagan, No. 02-2210 (7th Cir. Aug. 15, 2003), the Seventh Circuit rejected an appeal by a class of graduate students in a social work masters program, who alleged that the Governor's State University had deprived them of a constitutionally protected right to luring them to matriculate in an unaccredited program. The Court rejected the students' substantive due process claim as insufficiently established in the nation's history, under Glucksberg. However, the Court found a claim for deprivation of procedural due process rights sufficiently pled, if indeed the university represented that it was, or would be, accredited.

    Race Discrimination
    In Lampley v. Onyx Acceptance Corp., No. 02-3201 (7th Cir. Aug. 18, 2003), the Seventh Circuit sustained a jury finding of and award of compensatory and punitive damages for racially motivated discrimination and retaliatory discharge in violation of Title VII. It concluded that the punitive damages award was reasonable as the employer did not engage in good faith efforts to implement an anti-discrimination policy. The existence of such a policy will not void a punitive damages award where investigations conducted pursuant to it are demonstrably a sham. The Court also affirmed the size of the award based on emotion distress to the plaintiff and his pregnant wife.

August 26, 2003

  • Voting Rights
    In Schwier v. Cox, No. 02-13214 (11th Cir. Aug. 11, 2003), the Eleventh Circuit concluded that Section 1983, 42 U.S.C. 1983, can be used to allege a violation of Section 7 of the Privacy Act, and Section 1971 of the Voting Rights Act. The plaintiffs registration attempts were rejected for failure or refusal to provide their social security numbers. The court held that Section 7 of the Privacy Act, which prohibits State agencies from denying a citizen a right or privilege for refusal to provide a social security number, but which lacks any remedial scheme, may be enforced by a private Section 1983 action. Use of Section 1983 was appropriate as the Privacy Act creates a clear, individual right. The State challenged the statute as an unconstitutional use of the commerce clause powers, but the court sustained it as a use of both the "general welfare clause" and the "necessary and proper" clause - Congress created social security numbers, and can regulate their use. The court remanded a grandfather defense under Section 7(a)(2) of the Privacy Act, pertaining to records systems established prior to 1975, and also a challenge to the voter registration form. Section 1971 of the Voting Rights Act prohibits denial of the franchise for failure to provide information unrelated to voting eligibility. The court rejected the argument that a 1957 Amendment allowing the Attorney General to enforce the Act barred private suits under Section 1983, and concluded that Section 1971 also secured a specific, individual right. The court remanded the question of materiality to eligibility.

    Sex Discrimination
    In Crumpacker v. Kansas, No. 02-3197 (10th Cir. Aug. 8, 2003), the Tenth Circuit rejected an interlocutory appeal by the State of Kansas asserting Eleventh Amendment immunity from a Title VII suit alleging sex discrimination and retaliation. The court concluded that Congress had before it a sufficient record of gender discrimination when in 1972 it extended Title VII to state and local governments as "employers." It rejected the State's argument that this history did not specifically address a problem of retaliation. Rather, findings regarding a pattern of discrimination were sufficient. In concluding that the Eleventh Amendment did not shield the State, the court also concluded that a plaintiff may maintain a retaliation claim based solely on her reasonable good faith belief that the initial conduct complained of violated Title VII, regardless of whether it is adjudicated to do so.

    In Lawrence v. CNF Transportation, No. 02-1520 (8th Cir. Aug. 11, 2003), the plaintiff appealed a trial court-reduced jury award for Title VII sex discrimination, and a violation of the Equal Pay Act. The Court sustained the jury's verdict, but reversed the award of punitive damages because the employer did not act with "malice and reckless indifference" to the plaintiff's federally protected rights.

    Fair Housing Act
    In Lincoln v. Case, No. 02-30333 (5th Cir. Aug. 7, 2003), the defendant appealed a jury verdict awarding compensatory and punitive damages for refusing to rent an apartment to plaintiffs, a bi-racial (African American and Japanese) couple, on the basis of race. Before trial, the plaintiffs voluntarily dismissed their Section 1981 and 1982 claims, and state law claims, against the defendant, proceeding only with their Fair Housing Act claims. The court rejected the appellant's argument that the FHA did not apply to him, as his property was not a "single family house." It also rejected appellant's argument that plaintiff had no standing because, unlike testers who confirmed his motive, plaintiff was not actually lied to. Of interest, the court concluded that for an award of punitive damages under the FHA, the defendant must have "acted with malice or reckless indifference that his actions might violate a federal statute of which he was aware." Based on this standard, the court affirmed an award of punitive damages, but based on an application of the Gore factors, reduced it from $100,000 to $55,000.

    Disability Discrimination
    In Wood v. Crown Redi-Mix, Inc., No. 02-3506 (8th Cir. Aug. 7, 2003), the court affirmed the district court's award of summary judgment against plaintiff's ADA claim. Plaintiff, a concrete truck driver, had suffered nerve damages when falling into a hole at a concrete plant. His doctor limited his work, and prohibited him from driving a truck. His employer terminated him because it did not have another position in which it could accommodate his work restrictions. Appellant claimed that he was substantially limited in the major life activities of walking, standing, turning, bending, lifting, working, and procreation. As to all but the last, the court agreed with the district court that the plaintiff was moderately limited, but not so substantially as to create an ADA-cognizable injury. As for procreation, assuming arguendo that the plaintiff was so limited, the court held that a limitation (procreation) that is entirely unrelated to the requested accommodation (some job other than driving a cement truck) cannot carry an ADA suit.

August 25, 2003

  • School Desegregation - Unitary Status
    In a big week for local control over local school systems, federal district courts declared an end to two large, long-running school desegregation cases this week. On Wednesday, in Missouri v. Jenkins, the Western District of Missouri found the Kansas City School System to be unitary. This is not the first time the Court has set Kansas City free, only to have the 8th Circuit reverse. The plaintiffs in this 26 year old case have vowed to appeal. Click HERE to read the story.

    Also brought to a close on Thursday was Davis v. East Baton Rouge Parish School System, the nation's longest running active desegregation case, filed in 1956 by Thurgood Marshall. The Middle District of Louisiana's unitary status order came after the parties entered a settlement agreement, in which the plaintiffs agreed to a finding of unitary status in exchange for a four year commitment to a modest magnet program. An appeal in Davis is highly unlikely.

August 8, 2003

  • The Independent Women's Forum has two job opportunities. Please click to find out more infromation about each of the positions. (PDF)

    Please contact IWF directly regarding these positions.

  • Age Discrimination
    In Zaccagnini v. Chas. Levy Circulating Co., No. 02-3484 (7th Cir. July 29, 2003), the Court reversed a grant of summary judgment, remanding for trail a claim of age discrimination under the ADEA. The Plaintiff had been layed off in a Reduction-in-Force, and not rehired when other, younger applicants were later hired. The Court concluded that the plaintiff raised a jury question whether the employer's non-discriminatory basis for its action was pretextual. On summary judgment, the employer claimed that it had a policy of hiring only through union recommendations. However, in earlier papers and in its interrogatories, the employer claimed that it had a policy of not rehiring laid-off workers. The Court suggested that this change of excuse alone was sufficient to create a question of pretext, but also pointed to other evidence supporting that conclusion.

    In Brown v. Packaging Corporation of America, No. 01-5864 (6th Cir. July 29, 2003), the Sixth Circuit concluded that it is not reversible error for a trial court to instruct the jury in an ADEA case in the McDonnell Douglas burden shifting approach, even where direct evidence of discrimination was introduced. The panel divided over the question whether juries should ever be instructed as to the burden-shifting approach, which may entail some risk of confusing a jury with technical legalisms.

    In Rivera-Aponte v. Restaurant Metropol #3, No. 02-1923 (1st Cir. July 28, 2003), the Court sustained a grant of summary judgment on an ADEA claim. The plaintiff, a fired waiter, had started a fight with, and injured, a busboy. The Court found this to be a sufficient non-discriminatory reason for the firing, which was not demonstrated to be pre-textual.

  • Race Discrimination
    In Manatt v. Bank of America, No. 01-35847 (9th Cir. July 28, 2003), the Circuit affirmed a grant of summary judgment to the defendant bank over plaintiffs' hostile work environment and retaliation claims. As a threshold matter, the Court concluded that these claims, usually litigated under Title VII, could be raised under 42 U.S.C. section 1981, as an infringement on contracting ability. Having made that finding, the Court went on to reject the various claims. The plaintiff, a Chinese woman, alleged several incidents involving reference to her national origin, race, and accent, spread over a 2 1/2 year period. The Court found the allegations not sufficiently pervasive to create a hostile work environment. The Court also rejected her retaliation claims, where the bank substantiated each employment action, and where plaintiff failed to prove causation. Also, the bank rejected a constructive discharge claim, where the plaintiff continued to work at the bank for two years after the challenged conduct ceased.

  • State Immunity and Section 1981
    In Manders v. Lee, No. 01-13606 (6th Cir. July 28, 2003), the Eleventh Circuit, en banc, concluded that a Georgia Sheriff is an "arm of the state" deserving of Eleventh Amendment immunity for purposes of a Section 1981 suit alleging excessive use of force. The lengthy opinion and dissents reviewed the Sheriff's office and authority under Georgia state law, as required by the governing authorities. Of particular interest, the en banc majority tailored its conclusion only as to the Sheriff's authority to set "use of force" policy for the county jail, thus creating the possibility that the same officer may be an "arm of the state" with regard to some aspects of his official duties, but not with regard to others.

  • Immigration & Due Process
    In Dipeppe v. Quarantillo, Nos. 01-4043 & 01-4096 (3d Cir. July 28, 2003), the Court sustained against an equal protection challenge the disparate treatment afforded legal permanent resident aliens, and non-legal permanent resident aliens, by section 212(h) of the Immigration and Naturalization Act. The statute affords the latter (non-legal) the ability to seek a discretionary waiver of deportability from the Attorney General, while the former (legal) cannot. Although troubled, the Court sustained the statute on rational basis review.

  • Sex Discrimination
    In Cullen v. Indiana University Board of Trustees, No. 02-3043 (7th Cir. July 29, 2003), the Court affirmed a grant of summary judgment to the university on claims under the Equal Pay Act, and Title VII. The plaintiff, a professor and program head (respiratory therapy), alleged a pay disparity between herself and the mail head of a similar program (physical therapy). She relied heavily on a study the University itself had performed which concluded that she was an "outlier" as her salary was more than one standard deviation below the salary norm. On the Equal Pay Act claim, the Court concluded that the male professor's position entailed substantially more responsibility. His position required him to start a new program, resuscitate an existing program from probation, manage many more students and faculty member, and generate many times more revenue for the university. The plaintiff was therefore unable to establish that the positions were similar, a requirement for a prima facie case of discrimination. As for the study, the Court declined to decide whether statistics alone can sustain a prima facie case of discriminatory pay disparity, but did conclude that this study by itself did not do so. For good measure, the Court also discussed several affirmative defenses, including the fact that the male professor held more degrees, that his hiring had reflected market forces, that his field generally commanded higher pay, and that his department generated substantially more revenue. The plaintiff's Title VII claim foundered on similar facts, as she was unable to prove that a "similarly situated male" was treated preferentially over her.

  • Disability Discrimination
    In R.R. v. Fairfax County School Board, No. 02-2235 (4th Cir. July 29, 2003), the Court concluded that the IDEA does not require educational agencies to provide explicit notice that parents in Virginia have a two-year period to request a due process hearing, and to indicate when that period begins to run. When the plaintiff's parents were dissatisfied with his proposed IEP, they withdrew him from the public schools. The school system informed them of their procedural rights, but did not mention the limitations period. The parents requested a hearing 29 months later. The IDEA borrows the most analogous state statute of limitations. The statute and its implementing regulations require parents to be informed of applicable procedural safeguards, but only those contained in Section 1415 or promulgated by the Secretary. The statute therefore did not require notice of a state statute of limitations. The Court rejected an alternate basis for affirming the District Court's contrary conclusion, holding that an IDEA claim accrues when the parent knows of the claim, or the facts that form its base. The claim did not run from the time the parents paid private school tuition.

  • Voting Rights
    In Farrakhan v. Washington, No. 01-35032 (9th Cir. July 25, 2003), the Court reversed a grant of summary judgment to the state on plaintiffs' Voting Rights Act challenge to Washington's felon disenfranchisement statute. The Court concluded that the "totality of the circumstances" test for determining whether the right to vote has been diminished on account of race requires consideration of how the challenged statute interacts with external factors such as social and historical conditions, and discrimination elsewhere in the state's system. The Court concluded that the district court erred in failing to consider the plaintiffs' evidence concerning racial bias in Washington's criminal justice system, where it concluded that the felon disenfranchisement statute itself lacked racial animus. The Court concluded that to the extent that racial bias in the criminal justice system disproportionately convicted minorities of crimes of moral turpitude, that was a relevant consideration for purposes of the Voting Rights Act. The Court affirmed dismissal of plaintiffs' challenge to Washington's voting rights restoration scheme.

    In Georgia v. Ashcroft, No. 02-182 (U.S. June 26, 2003), the Supreme Court handed down the latest installment of the ongoing saga of Georgia's redistricting efforts. The Court reversed the district court's conclusion that Georgia's newly drawn state senate districts required Section 5 pre-clearance because they were retrogressive, i.e. they diminished minority voting power over the previous plan. The Court first rejected the argument that a plan satisfied Section 5 if it satisfied Section 2. The Court second fleshed out the relevant inquiry under Section 5. Specifically, the district court should look at the totality of the effect of the redistricting to determine whether exercise of the franchise has been retrogressively impacted. This includes overall percentages of minorities in specific districts, but also the creation of more districts in which a minority candidate may (rather than will) be elected, and also the creation of "influence" districts, where minorities make up a significant percentage, although not a majority, of the voters. The Court concluded that Section 5 gives States considerable flexibility in settling on the best course of action to maximize minorities' franchise. The Court gave substantial weight to the testimony of the minority elected representatives who supported the scheme.

July 31, 2003

  • Constitutional Torts
    In Dubbs v. Head Start, Inc., Nos. 01-5098 & 01-5177 (July 21, 10th Cir. 2003), the Tenth Circuit reversed and remanded Fourteenth and Fourth Amendment, battery and invasion of privacy claims against the Tulsa Community Action Project, which operates the Head Start program in Tulsa public schools. The parents brought suit after the program, without parental consent or notification, subjected students to an semi-public, extremely invasive physical examination which included disrobing, genital exams, and blood tests. The Circuit first took up the plaintiffs' constitutional tort claims, applying the "shocks the conscience" test. The Children's claim, it concluded, was better treated as a tortuous violation of the Fourth Amendment. As to the parents' claim for violation of their right to guide their children's upbringing, the Court reversed the district court, but without expanding on the standards necessary to sustain the claim. As to the Fourth Amendment claims, the Circuit concluded that the examinations were "searches" within the Amendment. The Court rejected the argument that the searches were not for "law enforcement purposes," noting that the plaintiffs alleged (and the Schools denied) that one purpose of the exam was to look for evidence of child abuse, which under state law would have been reported to the police. The Court also concluded that a tortuous violation of the Fourth Amendment can occur whether or not the state is acting in a law enforcement capacity. The core issue in the case was whether the defendants reasonably believed that parental consent had been given. The program had provided parents with a three forms: (1) a general consent form for eight medical procedures to be performed "if necessary"-none of these covered the examination; (2) a form covering general diagnosis or treatment and transportation to an emergency facility; and (3) a physical examination checklist form, which did show the blood test, but which no where required parental approval. This last form was not provided to all parents. The Court concluded that consent to the exam could not be deduced from these forms. The Court also concluded that the "special needs" exception to the strictures of the Fourth Amendment did not save the program's conduct. The Court the program's argument that it could not be held vicariously liable for the actions of its agents, as the actions here were direct and not vicarious. The Court did sustain dismissal of claims as to the separate contractor who provided the Head Start educational component, and the nurses who had carried out the exams, who had been told by the program that consent had been secured.

    Click HERE to read Dubbs v. Head Start, Inc.

    In McCann v.Mangialardi, Nos. 02-2409 & 02-3021 (7th Cir. July 22, 2003), the Seventh Circuit upset a tub of bad apples. The plaintiff, McCann, was a lieutenant in a cocaine distribution ring lead by Otis Moore. The defendant, Mangialardi, was a former deputy chief of police, who was also on the take with the cocaine ring. At some point, ringleader Moore, and crooked cop Mangialardi, suspected that McCann was a federal informant, and conspired to get rid of him. This was accomplished by Moore planting cocaine in McCann's car, which Mangialardi then had the police stop and search. (The police were initially unable to find the planted drugs; Moore had to telephone the station to tell them where to look). McCann pleaded guilty to possession with intent to distribute. When McCann got out of prison, he discovered that Mangialardi had been prosecuted, and that Moore had testified against him. His testimony included revealing the planted evidence, but was unclear whether the Mangialardi knew the drugs were planted, or just that the drug dealer McCann was driving a car with drugs in it. With his newfound respect for the law, McCann sued Mangialardi for false arrest, and a violation of his due process rights. The Court first concluded that the Fourteenth Amendment substantive due process claim was more appropriately treated under the Fourth Amendment, or as a state law for malicious prosecution. A substantive due process claim may not be maintained where parallel specific causes of action exist. But, as for his allegation of a Brady violation in that the corrupt officer failed to turn over evidence (i.e. his own knowledge and involvement) that the defendant was innocent, the Court held that a violation of the Fourteenth Amendment could be maintained. However, fatal to this claim was McCann's failure to answer, and therefore default admission of, a request for admission asserting that Mangialardi had no such knowledge. Moreover, McCann failed to point to any evidence that Mangialardi did actually know that Moore had planted the drugs. This also proved doubly fatal to his already time-barred Fourth Amendment claim.

    Click HERE to read McCann v.Mangialardi. (PDF)

  • Disability Rights
    In Anderson v. Rochester-Genesee Regional Transportation Authority, No. 01-9105 (2d Cir. July 23, 2003), plaintiffs - a group of disabled individuals and disability rights organizations - sued a paratransit system for non-compliance with the ADA. The plaintiffs alleged the system had violated the ADA by not providing next-day service for transportation requests made by eligible beneficiaries; had engaged in a "pattern or practice" significantly limiting available paratransportation; and non-compliance with a plan submitted to the Secretary of Transportation. The Court first resolved a conflict between two regulations: 49 CFR 34.131(b), which requires satisfaction of all next-day transportation requests; and 49 CFR 37.131(f)(i), which prohibits a system only from denying "substantial numbers" of ride requests. As to the specific claims, the Court sustained a grant of summary judgment against the system on the first two. The Court read the regulations to require a plan to meet 100 percent of requests, but allowing some leeway for actual execution. The Court concluded that, as the system had denied some 50 percent of next day ride requests, this number was substantial, and violated the statute. On the same figures, the Court sustained the "pattern or practice" charge as well. As to the third claim, the Court reversed the district court's conclusion that a violation of other substantive provisions of law necessarily constituted a failure to comply with a submitted plan. Rather, a plaintiff must identify a specific obligation in the plan that was not carried out.

    Click HERE to read Anderson v. Rochester-Genesee Regional Transportation Authority. (PDF)

    In Echazabal v. Chevron USA, No 98-55551 (9th Cir. July 23, 2003), the Ninth Circuit revisited this case after reversal and remand from the Supreme Court in Chevron USA v. Echazabal, 122 S. Ct. 2045 (2002), There, Supreme Court concluded that the "direct threat" exception to the ADA, 42 U.S.C. 12113 includes not just threats to other workers, but threats to the employee's own health. The question on remand was whether Chevron had met the elements of the defense. The Circuit (Reinhardt & Tashima) reversed a grant of summary judgment for Chevron. Judge Trott dissented. Chevron had twice withdrawn an offer to Echazabal of employment as a "coker" because it concluded that, given various health conditions, chemicals in the coker unit would be harmful to him. First, the Circuit addressed the standards required for an "individualized assessment" of anyone to whom the direct threat test will be applied. The Circuit concluded that the standards set out in 29 C.F.R. 1630.2(r) present a rigid, mandatory matrix, which must be applied. The Court questioned the competence of Chevron's doctors, and whether they had ever considered "the severity, imminence, and potential likelihood of harm" to Echazabal. Next, the Court concluded that Echazabal had raised questions of fact regarding three of the four Airline factors governing assessment of an alleged condition. The Court concluded that an assessment of direct harm must be based on more than the opinion of a generalist or expert in another field - it requires the opinion of an expert in the relevant field. The Court did not consider Echazabal's claim for accommodation, as he had not raised it below. Judge Trott filed a lengthy dissent reviewing the evidence submitted, and concluding that the Court should not rely on plaintiffs' experts opinions, filed after the termination decision, and contrary to the plaintiffs' own doctors' conclusions at the time, where Chevron had relied on those treating doctors' opinions in making its own employment decision.

    Click HERE to read Echazabal v. Chevron USA. (PDF)

    In Fick v. Sioux Falls, No. 02-3176 (8th Cir. July 23, 2003), the Court concluded that the IDEA does not require transportation to a day care center, rather than home, where the request for transportation departing from the facially neutral and equally applied transportation policy is made for personal reasons, rather than reasons related to implementation of the child's Individualized Educational Plan (IEP).

  • Employment Discrimination
    In Goldmeier v. Allstate Insurance Co., No. 01-3888 (6th Cir. July 24, 2003), the Sixth Circuit sustained summary judgment to the defendant against a claim of religious discrimination. Allstate had announced plans to keep its offices open on Friday evening and Saturday mornings. Plaintiff insurance agents, both Orthodox Jews, resigned upon announcement of the policy prior to its effective date. The Court agreed that because the plaintiffs could have hired an agent to operate the office while they could not, the rule did not directly require them to work on the Sabbath. Nevertheless, the rule affected them in a manner cognizable under 42 U.S.C. 2000e-2(a)(1), because it denied them a benefit enjoyed by all other workers. However, a prima facie case for religious discrimination requires proof that the plaintiff was disciplined or discharged for non-compliance with the rule. Here, neither plaintiff suffered discipline or discharge over the policy, but rather quit claiming constructive discharge. All agreed this came as a surprise to Allstate; the plaintiffs worked in their own office with their own staff, and the regulations did not take effect until 53 days later. The plaintiffs did not demonstrate that their employment conditions were sufficiently unbearable as to constitute constructive discharge. The Court rejected the argument that the "discipline or discharge" requirement was a vestige of law predating the 1991 Civil Rights Act, which that act did away with. Accordingly, the Court affirmed the district court's grant of summary judgment for failure to establish a prima facie case of employment discrimination.

    Click HERE to read Goldmeier v. Allstate Insurance Co.

    In Leibforth v. Belvidere Nat'l Bank, No. 02-3190 (7th Cir. July 25, 2003), the Circuit affirmed a grant of summary judgment against plaintiffs' Title VII age discrimination claim. The bank believed the plaintiff to be planning on retiring imminently. She claimed to have said that she was thinking about doing so. Nevertheless, acting on its belief, the bank hired replacement officers, demoted plaintiff to assistant manger, inquired when she would be retiring, and set as an alternative a termination date. She declined to set a date, but rather said she would retire when she sold her house. The bank fired her on its set termination date. The Court took up her discriminatory demotion and discriminatory discharge claims, and dismissed both due to her failure to establish pretext. The bank acted because it believed she was going to retire. Whether or not she was actually going to retire, she failed to prove that the bank's reason for acting was pretextual. Nor did she prove that the replacement assistant manager was similarly situated.

    Click HERE to read Leibforth v. Belvidere Nat'l Bank (PDF)

    In Hall v. Consolidated Freightways Corp., Nos. 00-4316/4431 (6th Cir. July 25, 2003), the Court took up the propriety of a punitive damages award made in a case raising both Title VII race discrimination charges, and parallel state law claims raised under Ohio law. The same evidence sustained both claims. The jury awarded punitive damages exceeding the federal statutory cap, but that were permissible under the state law. The Court held that the award was not capped by the federal statute.

    In Girten v. McRentals, Inc., No. 02-3444 (8th Cir. July 25, 2003), the Eighth Circuit affirmed dismissal of age discrimination claims brought under the ADEA and Missouri Human Rights Act. The married plaintiffs were manager and assistant manager of a rent-to-own store. After employees complained that the manager was under-reporting their hours, the store owners inquired into the matter, and the manger was forced to resign. His wife then also resigned; the Court assumed she that this was also compelled. The plaintiffs were 62 and 61 years old. They were replaced with a 53 year-old manger and a 30-something year old assistant manger. The replacement manager himself then quit two days later after deciding that he was not constituted for repossession work. The Court found a prima facie case to be established based on the age of the replacement workers. The company provided a non-discriminatory basis for the firings, namely the under-reporting, willful disregard of complaints, and lying about the matter. Plaintiffs then failed to demonstrate pretext, as the replacement manager was within the protected class, and the only other evidence pointing to age discrimination was not attributable to the person who made the termination decision.

July 10, 2003

June 24, 2003

  • U.S. Supreme Court Opinions in Grutter and Gratz
    In Grutter v. Bollinger, the Supreme Court sustained the University of Michigan Law School's admissions process against an equal protection challenge. The policy allows admissions officers to consider an applicant's race as a "plus factor," among a range of factors, in making admissions decisions. The Court deferred the University's expertise in determining whether an applicant's race would contribute to a diverse exchange of ideas and improve the University's learning environment. The Court also suggested that such a policy should not last more than 25 years.

    Click to read the opinion in Grutter v. Bollinger. (PDF)

    In Gratz v. Bollinger the Supreme Court struck down the University of Michigan's undergraduate admissions process in so far as it gave black, Hispanic and Native American applicants an automatic 20 point head start, not received by applicants of other races, on the 100 point admissions scale. This differed from the Law School policy in that it objectively rather than subjectively considered race. The Court held that doing so violated the Equal Protection Clause because it was insufficiently tailored to its purpose.

    Click to read the opinion in Gratz v. Bollinger. (PDF)
  • DOJ Issues Racial Profiling Guidelines
    On June 17, 2003, the Department of Justice, Civil Rights Division, issued guidelines to regulate the use of racial profiling by federal law enforcement officers. The guidelines bifurcate law enforcement activities between "Traditional Law Enforcement Activities" and "National Security and Border Integrity" activities. As to the former, the guidelines prohibit the use of race in making law enforcement decisions, absent credible evidence that is time, location or activity specific that individuals of a specific race are engaged in a specific activity. As to the latter, given the enormous stakes in a post-9/11 world, the guidelines permit the use of all constitutional means of employing race in law enforcement decision-making. The guidelines unambiguously prohibit the use of racial stereotypes, such as propensity to commit crimes, as a determining factor in making law enforcement decisions.

    The guidelines can be viewed by clicking HERE. (PDF)

June 16, 2003

  • Title VII Suits
    In Desert Palace v. Costa, No. 02-679 (June 9, 2003), the Supreme Court held that a Title VII sex discrimination plaintiff need not adduce direct evidence of discrimination in order to obtain a mixed motive instruction. The Court affirmed the Ninth Circuit's ruling on a plain reading of 42 U.S.C. 2000e-2(m). The statute's requirement that a plaintiff "demonstrate" use of an illegal consideration in action extended only to the statutorily defined burdens of production and persuasion, and did not impose a requirement that evidence be direct. The Court concluded that circumstantial evidence both was useful and could be dispositive in mixed motive cases. Justice Thomas wrote for a unanimous court. Justice O'Conner wrote separately to explain development in the law since her concurrence in Price Waterhouse v. Hopkins. Click HERE to read the opinion. (PDF)

    In Hamm v. Weyauwega Milk Products, No. 00-C-1283 (June 13, 2003), the Seventh Circuit affirmed a grant of summary judgment against plaintiffs allegation of male-on-male discrimination in violation of Title VII's prohibition of discrimination on the basis of "sex." Plaintiff, a heterosexual, alleged that co-workers abused him in large part out of a perception that he was gay, and having a homosexual relationship with another employee. The conduct alleged included verbal abuse and threats of physical abuse. The court noted that while Title VII applies to male-on-male discrimination due to "sex," it does not extend to discrimination because of sexual orientation. Plaintiff cast the conduct as arising from his co-worker's belief that he did not "fit the sexual stereotype of a male." The Court concluded, however, that the evidence at best indicated dissatisfaction with plaintiff's work performance and/or his perceived sexual orientation, and was also consistent with workplace horseplay. Click HERE to read this decision. (PDF)

June 5, 2003

  • On May 27, 2003, the Supreme Court denied certiorari in an appeal from the Second Circuit's decision refusing to order deportation hearings be opened to the public. Click HERE to read more.

    The Society previously published a white paper addressing this topic, which can be found by clicking HERE. (PDF)

January 14, 2003

  • Affirmative Action & Government Employment
    The Federalist Society's Civil Rights Practice Group will host a panel on affirmative action and government employment on February 6, 2003 at the National Press Club. The panel will begin at 12:00 p.m. and conclude at 2:00 p.m. Please click HERE for details and registration.

2003 The Federalist Society