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SCOTUS Grants Writ of Certiorari for Three LGBT Employment Discrimination Cases

On April 22, 2019, the Supreme Court granted petitions for writs of certiorari in three LGBT employment cases. Each of the three cases addresses whether Title VII of the Civil Rights Act of 1964 offers protection against discrimination in employment on the basis of sexual orientation or gender identity.

In Bostock v. Clayton County, Georgia, the Plaintiff, Gerald Lynn Bostock, claims his sexual orientation as a gay man was the reason for his termination from Clayton County as a Child Welfare Services Coordinator. The District Court ruled that he had no viable claim because Title VII does not prohibit discrimination on the basis of sexual orientation. The Eleventh Circuit established the precedent that discrimination on the basis of sexual orientation is not a form of sex discrimination protected by Title VII.

In contrast, the Second Circuit Court of Appeals held in Zarda v. Altitude Express, Inc., that sexual orientation is protected under Title VII, because the Supreme Court has ruled previously that gender stereotyping violates the statute. The Second Circuit held discrimination based on sexual orientation was an “actionable subset of sex discrimination” because you cannot address sexual orientation without consideration of the individual’s gender and the related stereotypes.

In R.G. & G.R. Harris Funeral Homes v. EEOC, et al., the Sixth Circuit also held that Title VII protects employees who are transgender. Employee Aimee Stephens was terminated when she informed her coworkers that “she was undergoing a gender transition from male to female and intended to dress in appropriate business attire to work as a woman.” Two weeks later she was terminated because the funeral home owner thought he would be “violating God’s commands” by allowing Stephens to dress in women’s clothing. The federal Equal Employment Opportunity Commission (EEOC) filed a lawsuit on Stephens’ behalf, and the U.S. Court of Appeals for the 6th Circuit ruled for the EEOC and Stephens.

8th Circuit Reverses Summary Judgment on FMLA Claims

The Eighth Circuit reversed summary judgment on an FMLA entitlement and discrimination claim.  In Hudson v. Tyson Fresh Meats, Inc., the Court found that sufficient evidence of FMLA discrimination and interference existed to allow the matter to proceed to trial.   ___ F.3d. ___, 2015 U.S. App. LEXIS 8479 (8th Cir. May 28, 2015).  

Plaintiff Delbert Hudson was fired after taking a short leave for back problems and depression.  Hudson’s girlfriend, also an employee at Tyson, told Hudson’s supervisor that he would be absent for a few days, and Plaintiff texted his supervisor about being out. When he returned to work, Hudson was fired for failing to call in each day pursuant to company policy.  Hudson sued for FMLA interference and discrimination.

The district court granted summary judgment on both claims, and the Court of Appeals reversed.  First, the Court held that Tyson failed to restore Hudson to the same or similar position after his leave, as required by the FMLA.  Tyson argued that it “returned Hudson to his normal job duties for a person Human Resources was investigating,” but the Court rejected that argument because Tyson failed to cite any authority to support its legal theory.

Next, the Court held that Hudson FMLA discrimination claim should go to trial.  Specifically, the Court held that Tyson’s shifting reason for termination (first for failing to provide notice, then for not providing notice in the appropriate manner), and evidence suggesting Tyson did not consistently enforce the call-in policy could convince a jury that its alleged reason for termination was a pretext to discrimination.

The decision can be found here.  The FMLA entitles employees to take legally-protected leave, and protects employees from discrimination and retaliation for excercising rights under the FMLA. In addition, many states (including Minnesota) have passed their own versions of leave laws that may afford even more protections than the FMLA. If you have questions about the FMLA, or any other employment law issue, contact Teske Katz Kitzer & Rochel

Kitzer & Rochel Publish Article in FBA Labor & Employment Magazine

Teske Katz Kitzer & Rochel partners Brian Rochel and Phillip Kitzer co-authored an article in the Spring issue of The Labouring Oar, published by the Federal Bar Association’s (FBA) Labor and Employment Law Section. Phillip and Brian wrote the article along with Frances Baillon, partner at Baillon Thome. The article, titled “Is McDonnell Douglas Too Burdensome? Circuits Question the Utility of the Decades Old Burden-Shifting Model,” analyzes recent court decisions calling into question the usefulness of the McDonnell Douglas burden-shifting scheme.

Noting the varying approaches in the federal circuits of applying the McDonnell Douglas test to employment claims, at least two judges have advocated for doing away with burden shifting, otherwise called the indirect method, altogether because of the confusion caused by its application.  District Judge Paul Magnuson, sitting on the Eighth Circuit panel by designation, provided a lengthy exposition of McDonnell Douglas in Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir. 2004), calling the direct/indirect evidence distinction a “legal fiction,” and opined that it “should have fallen into disuse after Congress amended the Civil Rights Act in 1991.”  Likewise, Seventh Circuit Chief Judge Diane Wood provided a well-reasoned critique of the indirect method in Coleman v. Donahoe, 667 F.3d 835 (7th Cir. 2012).  Judge Wood wrote, “Courts manage tort litigation every day without the ins and outs of these methods of proof, and I see no reason why employment discrimination litigation (including cases alleging retaliation) could not be handled in the same straight-forward way.” The article concluded by suggesting the United States Supreme Court may ultimately take the issue to resolve the confusion within the circuits.

Click here to view the full article.

Teske Katz Kitzer & Rochel Defeats Summary Judgment in MHRA Disability Claims

In Oliver v. MCTC, Teske Katz Kitzer & Rochel attorney Brian Rochel, along with co-counsel Michelle Dye Neumann, successfully argued against the employer’s motion to dismiss Ms. Oliver’s Minnesota Human Rights Act claims. Ms. Oliver suffered a disabling injury at work and alleged that she was terminated because of her disability, and because she requested reasonable accommodation for her disability. The Minnesota District Court denied the motion, ruling that a jury could find in Ms. Oliver’s favor on her claims. The case will now proceed to a jury trial.

The court’s opinion is important because it held that Karst v. F.C. Hayer Co, 447 N.W.2d 180 (Minn. 1989), a case long used by employers to fend off liability for disability discrimination, did not apply to Ms. Oliver’s claims. In doing so, the court narrowed the application of Karst and called into question whether it is still good law.

Kitzer & Rochel Defeat Summary Judgment in Federal Court

In Jason Lindner v. Donatelli Bros. of White Bear Lake d/b/a Donatelli’sBrian Rochel and Phillip Kitzer defeated summary judgment in U.S. District Court. Lindner’s claims involved FMLA interference and retaliation as well as for seeking time off from work related to his disability. After 18 years of employment, Jason Lindner was fired while on FMLA leave stemming from a recently-developed respiratory airway disease (RADs).  The person who decided to terminate Lindner, Trish Appleby, testified that she relied on video footage to disprove that Lindner fell in the parking lot, justifying her decision to terminate him for falsifying a workers’ compensation claim.

The Court held that summary judgment was not appropriate because there was sufficient evidence for a jury to find that Donatelli’s proffered reasons for termination were pretext for retaliation. First, Appleby admitted she was skeptical of the injury even though Lindner’s account of the fall was “pretty much the same” to the account he gave her.  Second, the Court stated that the video was unclear and could reasonably discredit Appleby’s “adamant testimony” that she could “clearly” tell from the tape that he did not fall.  Likewise, Appleby adamantly claimed that Lindner’s doctor’s note did not contain “one objective” indication of injury, yet the doctor’s note did contain indications that Lindner was injured. Third, the Court found that the timing of Appleby’s investigation into the alleged fall could be considered suspicious.  Appleby did not take it upon herself to investigate the injury until after Lindner suffered the RADs injury and requested time off from work.  Fourth, Appleby testified that Lindner’s previous requests for time off constituted “performance problems” that could have led to his termination.  Finally, Appleby did not provide Lindner the same opportunities to remedy alleged behavioral problems that it provided other employees, even those who committed offenses she considered “flagrant.” The Court held, “This evidence of hostility combined with the timing of his termination and the shaky foundation of her professed belief could lead a reasonable jury to discredit Appleby and conclude her decision was in fact motivated by Lindner’s medical leave.”

Likewise, the Court denied Donatelli’s summary judgment motion on Lindner’s FMLA entitlement claim.  Although Donatelli’s argued that Lindner “never” made an FMLA request, the Court found that the argument is “clearly contradicted by the record.” Lindner submitted a complete FMLA request for the day before he was terminated, and Donatelli’s was “clearly on notice of his potential need for FMLA leave because Appleby raised the issue with him and sent him FMLA paperwork, which stated he was eligible for leave[]”. Accordingly, the Court held that Lindner’s FMLA entitlement claim could proceed to jury trial along with his retaliation claim under state and federal law.

The full opinion, issued by U.S. Judge Richard J. Kyle, is available here.