On January 5, 2010, United States District Court Judge Bernice B. Donald denied, on all counts, defendant Hilton Hotels’ motion for summary judgment of state and federal claims of discrimination and retaliation, allowing Kumar v. Hilton Hotels Corp. to proceed to trial.  Mr. Manoj Kumar, an Indian native and former information technology department employee, alleges that he was denied a promotion due to alienage, retaliated against, and ultimately terminated in violation of Title VII of the Civil Rights Act, Section 1981, and the Tennessee Human Rights Act. 

Also included in Mr. Kumar’s complaint are allegations that he was told to start a business selling statues of a Hindu god and ridiculed over his accent.  After attempting to assert his rights, Mr. Kumar was retaliated against and ultimately terminated.  Hilton Hotels claims that the adverse employment actions suffered by Mr. Kumar were related to performance and in no way related to his national origin or alienage.  They also claim that continued poor performance and behavioral issues were to blame for his termination and not his engagement in the protected behavior of asserting his rights.  Finding that genuine issues of material fact exist surrounding all claims, Judge Donald appropriately denied the motion on all counts.  Importantly, Judge Donald also found direct evidence of alienage discrimination, prohibiting summary judgment from being granted.  A copy of the opinion is available here.  A jury trial is scheduled to begin January 19, 2010.

Mr. Kumar is represented by Adam Augustine Carter and R. Scott Oswald, Principals at The Employment Law Group® law firm.  For more information on the firm’s Discrimination Law Practice, click here.

In the first seven days of this month, the United States Court of Appeals for the Fourth Circuit reversed two lower court rulings in favor of employee-plaintiffs.  In Wesley v. Arlington County, the Court held that the district court erred in its application of the McDonnell Douglas burden shifting framework when it granted a motion for summary judgment for the employer. 

Wesley, a firefighter in Arlington County, Virginia, claimed that she was discriminated against and refused a requested promotion due to her race and sex.  For years she met all of the department’s published and formal objective requirements for promotion to Captain but she was continually passed up by the Chief during a final “roundtable,” where unpublished subjective criteria are discussed. 

The McDonnell Douglas framework requires an employee to present a prima facie case of discrimination which the employer may then rebut by showing an alternative cause for the allegedly discriminatory act.  To be victorious, an employee must then prove that the employer’s cause was merely pretextual.  To survive a motion for summary judgment, an employee need only present a prima facie case.  The Court found that the trial judge wrongly applied the second and third prongs of the McDonnell Douglas frame work when it granted a motion for summary judgment for the County. 

In the second case, Harman v. Unisys Corp., the court granted a motion to dismiss an employee’s numerous discrimination and Fair Labor Standards Act allegations.  The Court agreed with the trial judge’s dismissal of several counts and even stated that the complaint was “cumbersome and voluminous and contains numerous irrelevant allegations.”  However, the Court found that the district court should have allowed the employee an opportunity to refine her pleading and cure formal defects, even if the court doubted her ability to do so.

While these decisions are unpublished and therefore non-binding authority, they nonetheless show an increased willingness of the Court of Appeals of the Fourth Circuit to give employee-plaintiffs an opportunity to properly present their case. 

 For information on The Employment Law Group® law firm’s Discrimination Law Practice, click here.

On November 3, 2009, the 5th Circuit Court of Appeals held that a Sarbanes-Oxley Act (SOX) claim can be precluded by a failed Title VII discrimination suit.  The per curium decision came in Thanedar v. Time Warner, Inc..  To determine whether the SOX claim was barred, the Court used a transactional test and found that “the two claims rest on ‘the same nucleus of operative facts.’”  Accordingly, the preclusive effect of the prior Title VII judgment “extends to all rights the original plaintiff had ‘with respect to all or any part of the transaction, or series of connected transactions, out of which the [original] action arose.’”

For information on The Employment Law Group® law firm’s Sarbanes-Oxley Practice, click here.

On October 9, 2009, the California Court of Appeals issued a decision in Nazir v. United Airlines, Inc. In a case which cautions defendants against over-burdening a plaintiff in the employment context, the Court reviewed “what well may be the most oppressive motion ever presented to a superior court.”  In this opinion, the Court took on the growing problem of abuse of the summary judgment procedure, particularly in employment litigation, “especially by deep pocket defendants,” seeking “to overwhelm less well funded defendants.”

Defendants filed an astounding 1,056 page motion for summary judgment, an 1,150 page further reply, and hundreds of evidentiary objections to plaintiff’s response.  Regarding the numerous objections made by the defendants, the Court asked, “Can this be serious?  Can counsel see themselves rising at trial with those objections while plaintiff is testifying before a jury?”  Given the quality of the objections, the Court reasoned that apparently the defendants “assign[ed] the most junior lawyer to ‘do the objections,’” and suggested that “[p]erhaps a wiser practice would be to have the most experienced lawyer, presumably with a better understanding of the law of evidence, deal with the objections.”

The motion was harshly criticized by the Court both for its length and frivolity.  The Court reversed the trial court’s granting of the defendants’ motion and awarded costs to the plaintiff.

For information on The Employment Law Group® Law Firm’s Employment Discrimination Law practice, click here

The Fourth Circuit has reversed summary judgment in a case brought by the EEOC, thereby allowing an African-American female to pursue her Title VII hostile work environment claim against her former employer, Central Wholesaler’s Inc.  In EEOC v. Central Wholesaler’s Inc., the EEOC alleged that the company subjected LaTonya Medley to a hostile work environment because of her gender and race.  According to the complaint, Medley was subject to multiple instances of harassment, including, among other things:  (1) hearing her co-workers use the word “b***h” on a daily basis when referring to women, (2) being referred to as a “black stupid n****r”; and (3) having to hear sounds of people having sex because her co-worker watched pornography on his work computer. 
 
Central moved for summary judgment on all of the EEOC’s claims and the district granted its motion.  In its decision the district court held that the alleged conduct was not gender-specific, “not sufficiently severe or pervasive to create a sexually hostile working environment,” and that the company conducted a “reasonable investigation under the circumstances,” with regards to Medley’s complaints that co-workers repeatedly called her n****r.  The Fourth Circuit reversed, finding that the evidence, viewed in the light most favorable to the EEOC, could allow a reasonable jury to conclude that the harassment was:  (1) unwelcome; (2) based on Medley’s gender or race; (3) sufficiently severe or pervasive to alter conditions of Medley’s employment and create an abusive environment; and (4) imputable to Central.  Additionally, the Fourth Circuit held that a jury could find that Central’s actions were not “reasonably calculated to end the [alleged] harassment.”  In reaching its decision, the Fourth Circuit relied on the fact that Central failed to take remedial actions that “a rational jury could find would have been reasonably calculated to end the harassment,” i.e., demoting the four primary offenders, suspending them from work, reducing their pay, or issuing them written reprimands.  In sum, the Court concluded that “Central’s response was not sufficient [] to warrant summary judgment,” and thus, remanded the case to the lower court. 
 
This decision is significant because it reminds employers that remedial action and not just words, is necessary to combat harassment.  For information on race and gender-based discrimination, visit The Employment Law Group® Law Firm’s Discrimination Practice at http://employmentlawgroup.net/PracticeAreas/Discrimination-Law.asp.