Fall 2005 Employment Law Update

By Joshua Skinner

United States Supreme Court

• Jackson v. Birmingham Bd. of Educ., 125 S.Ct. 1497, 161 L.Ed.2d 361 (March 29, 2005)

An employee may bring a private cause of action against an employer for violation of Title IX when the employer retaliates against the employee because he complained about sex discrimination perpetrated on others.

Jackson was a physical education teacher and girls’ basketball coach for the Birmingham school district.  He alleged that the girls’ team was not receiving equal funding and equal access to athletic equipment and facilities, in violation of Title IX.  He alleged that he complained about the inequalities, but that the school failed to remedy the situation.  Instead, he began to receive negative work evaluations and was ultimately removed as girls’ coach.  Jackson brought suit against the school board alleging retaliation under Title IX.  The school board moved to dismiss on the ground that Title IX’s private cause of action does not include claims of retaliation. The district court granted the motion to dismiss and the Eleventh Circuit Court of Appeals affirmed the decision.  This created a split among the Courts of Appeal because the Fourth and Fifth Circuits had previously ruled that Title IX does create a private cause of action for retaliation.

The Supreme Court overruled the Eleventh Circuit and held that retaliation constitutes intentional discrimination on the basis of sex and is therefore prohibited by the plain language of Title IX.  The Supreme Court held that retaliation is a form of intentional discrimination and that it is irrelevant that the individual retaliated against was not the individual discriminated against in the underlying complaint.

• Smith v. City of Jackson, Mississippi, 125 S.Ct. 1536, 161 L.Ed.2d 410 (March 30, 2005)

Employees may bring “disparate-impact” claims pursuant to the Age Discrimination in Employment Act (ADEA), but such claims are subject to a more deferential standard of review than in other “disparate impact” civil rights claims.

In an effort to “attract and retain qualified people,” the City of Jackson, Mississippi, adopted a pay plan that raised the salaries of employees with less than five years of experience in order to bring those salaries to a level comparable with the regional average.  The ADEA protects employees over the age of 40 from discrimination based upon age.  While there were some employees over the age of 40 who had less than five years of experience, the plan had the effect of benefiting younger officers more than older officers.  A group of older officers brought suit against the City alleging “disparate treatment” and “disparate impact.”  The district court granted summary judgment on both claims.  On appeal, the Fifth Circuit Court of Appeals reversed the decision on the “disparate treatment” claim on the grounds that the plaintiffs were entitled to more discovery.  On the “disparate impact” claim, the Fifth Circuit held that there is no “disparate impact” claim available under the ADEA, but that, if there was, this case met the standards enunciated for such a claim under the Supreme Court case Griggs v. Duke Power Co., 401 U.S. 424 (1971).

The Supreme Court overruled the Fifth Circuit and concluded that the ADEA, like Title VII, does contain a cause of action for “disparate impact.”  The Supreme Court noted, however, that the ADEA provides an exception “where the differentiation is based on reasonable factors other than age.”  As a result, the Supreme Court held that the City’s plan did not violate the ADEA.  The decision to raise salaries to that of surrounding police forces in order to help retain officers is a “reasonable factor other than age.”

Fifth Circuit

• Hockman v. Westward Communications, 407 F.2d 317 (April 13, 2005)

A plaintiff will not succeed on a claim of sexually hostile work environment simply because she suffered from boorish and offensive behavior.  The behavior must be severe and pervasive.  In addition, a plaintiff cannot show that the company failed to take prompt remedial action when she unreasonably failed to report the alleged offenses in accordance with the employee handbook..

Ladonna Hockman was employed by Westward Communications to work with Oscar Rogers at the Grand Saline Sun.  Hockman claimed that Rogers harassed her in the following ways: (1) he once made a remark to Hockman about another employee’s body; (2) he once slapped her on the behind with a newspaper; (3) he “grabbed or brushed” against Hockman’s breasts and behind; (4) he once held her cheeks and tried to kiss her; (5) he asked Hockman to come to the office early so that they could be alone; and (6) he once stood in the door of the bathroom while she was washing her hands.  Hockman also claims that she complained to Nell French, Hockman’s immediate supervisor, but nothing happened.  Hockman admits, however, that she received the employee handbook, that it directed her to report her complaint to the Director of Human Resources (Gina Fisher), but that Hockman did not report her complaint to Fisher.  Hockman contended that she did not report her complaint to Fisher because French had threatened to fire her if she took complaints “over his head.”

After detailing the extreme facts necessary to establish a claim for sexually hostile work environment, the Fifth Circuit held that Hockman had not stated facts sufficient to create a question of fact as to whether a sexually hostile work environment existed.  The Fifth Circuit also noted that in order to bring a sexually hostile work environment claim, the plaintiff must prove that the company failed to take prompt remedial action.  The Fifth Circuit held that Hockman cannot prove that Westward failed to take prompt remedial action where she unreasonably failed to take advantage of corrective opportunities provided by Westward.

• Bellum v. PCE Constructors, Inc., 407 F.3d 734 (April 26, 2005)

The Family Medical Leave Act (FMLA) provides an exception denying protection to otherwise eligible employees if the employer employs less than 50 employees within 75 miles of the worksite.  The 75-mile distance is calculated according to the public roadways.

PCE hired Bellum to manage a project at what was called the FPI site.  The PCE had a staff of 14 at its headquarters in Baton Rouge and 41 at the FPI site.  The distance between PCE’s headquarters and FPI is between 66.5 and 69.5 linear miles, but 88.5 miles over public roadways. PCE fired Bellum after he recovered from surgery.

Bellum brought suit alleging that he was fired in violation of the FMLA.  The FMLA only applies, however, to “eligible employees.”  While Bellum normally would have been an eligible employee, PCE contended that one of the exceptions applied and thus, Bellum did not qualify.  The applicable exception states that an employee is not eligible if the employer employs less than 50 employees within 75 miles of the worksite.  PCE contended that, pursuant to the administrative regulations, the 75 miles should be calculated based on the distance on the public roadways.  The Fifth Circuit concluded that the administrative regulations were a permissible interpretation of the FMLA and were entitled to deference from the courts.

Texas Supreme Court

• Garza v. Exel Logistics, Inc., 161 S.W.3d 473 (April 8, 2005)

An employer has the burden of proving that it has workers’ compensation insurance coverage in order to receive the benefit of the exclusive remedy provision of the Texas Workers’ Compensation Act.  In addition, an employer’s payment of the workers’ compensation premiums for a temporary agency providing staffing assistance does not mean it receives the benefit of the workers’ compensation coverage.

Interim Services, a temporary employment agency, employed Jose Garza as a laborer and assigned him to perform general labor at Exel Logistics, one of Interim’s clients.  Garza sued Interim and Exel after he was injured while crossing over a moving conveyor belt to turn off a machine at the request of an Exel supervisor.  Interim sought and received summary judgment on the grounds that it was Garza’s employer and had workers’ compensation insurance.  Exel sought summary judgment on the grounds that Interim’s workers’ compensation policy inured to Exel’s benefit.  Garza contended that Exel was not his employer and/or that there was insufficient proof that Exel was covered by workers’ compensation insurance.

The Texas Supreme Court held that Exel was Garza’s employer within the meaning of the Texas Workers’ Compensation Act. In addition, the Court held that Interim’s workers’ compensation policy could not benefit Exel under the Act, even though Exel paid the premiums on Interim’s policy.

• Van Indep. Sch. Dist. v. McCarty, 205 Tex. LEXIS 425, 48 Tex. Sup. J. 776 (May 27, 2005)

A school district does not waive time deadlines for grievances merely because it hears and responds to the substance of a complaint.

McCarty was fired from his job with Van ISD.  McCarty alleged that he was fired in retaliation for filing a workers’ compensation claim, while the District alleged that he was fired for falsifying records and making false statements to his supervisor.  The District filed a plea to the jurisdiction alleging that the trial court did not have jurisdiction because McCarty did not exhaust his administrative remedies.  In particular, McCarty was required to file a notice of appeal to the District’s Board of Trustee within seven days of his termination.  He filed the notice two weeks late.  Two months later, McCarty brought his grievance before the Board and the Board denied McCarty’s grievance on the grounds that it was untimely requested and also based on the evidence presented in the hearing.  The district court denied the plea to the jurisdiction.  On appeal, the Court of Appeals that the District waived the untimeliness of the grievance because it heard the substance of the complaint.

The Texas Supreme Court overruled the Court of Appeals because the decision conflicted with the Supreme Court’s earlier decision Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293 (Tex. 2001).  The Supreme Court held that a school district does not automatically waive the issue of untimeliness by hearing a grievance.  In this case, the Court noted that the Board had expressly refused to waive the issue of timeliness.

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