Fifth Circuit: Wright v. Un Pac RR

 

Although a plaintiff alleging a discriminatory retaliation need not provide evidence at the pleading stage, the facts described in the pleadings must allow an inference that the conduct alleged resulted from the protected conduct.

As the termination resulted from a situation that was a matter of past practice, the deviation from that practice concerned an implied term of the existing CBA, and was therefore appropriately categorized as a minor dispute subject to arbitration.

State law antidiscrimination provisions preempted by federal labor law requiring arbitration.

Wright v. Un Pac RR

Fourth Circuit: Colette Wilcox v. Nathan Lyons

 

Generic claim of retaliation actionable as gender discrimination under Title VII does not sound as a cause of action under S1983; Section VII explicitly includes retaliation as an actionable harm, and this would be surplussage if inherent in the right.

Circuit split flagged.

Colette Wilcox v. Nathan Lyons

Seventh Circuit: Todd Kurtzhals v. County of Dunn

 

Loss of reasonably expected overtime pay is sufficiently materially adverse to present an issue for trial on an ADA claim by an employee placed on paid leave.

Insufficient evidence of pretext to present an issue for trial where the employee's action facially violated workplace rules, but the employee claims that the supervisor's knowledge of employee's PTSD was a but-for cause of the adverse action.

Subsequent fitness for duty evaluation was not proscribed by statute or inconsistent with business necessity, given responsibilities of police officers.

Todd Kurtzhals v. County of Dunn

Tenth Circuit: Frappied v. Affinity Gaming Black Hawk

Mixed claims sounding in both gender and age are cognizable under Title VII.

Clam sufficiently states the age and gender claim by reciting the gender of the plaintiffs and that they are older than 40.

~96% chance of firings being non-random across age and gender suffices to create a plausible inference of discrimination.

Even given the statistical possibility of discrimination, no facts raising an inference of discrimination on the basis of gender were pleaded, so the non-random employment actions are susceptible of other explanations.

Given statistical analysis of terminations and the demographics of the new employees hired, the suit states a claim for disparate impact under the ADEA.

Median ages of terminated and new employees suffice to state a claim for disparate treatment under the ADEA, but employer met the burden of producing a nondiscriminatory basis.  Sufficient issue for trial on whether these post-hoc rationales were pretextual.

Frappied v. Affinity Gaming Black Hawk

Fourth Circuit: Eugene Baten v. Henry McMaster

Plaintiffs challenging state's allocation of Presidential Electors en bloc have Article III standing, as they allege sufficient injury and causation; although political gerrymandering is nonjusticeable, racial gerrymandering and vote dilution claims are substantially different.

No vote dilution, as the state is a unit, and each vote within it is equally counted; this structure is baked into the Constitution, and reflected in the tiebreaking procedure in the House, where each state gets a single vote.

Freedom of Association right derives from the right to associate with the party of one's choice, not from the party's chances, or the expectation that the national party will pay much attention to you.

VRA S2 and Gingles challenge falls short, since there is not prospect of a minority majority district, the poll is for electors, not the ultimate candidates, and minority voters have equal opportunity to select candidates of their choice.

Eugene Baten v. Henry McMaster 

Ninth Circuit: John Heineke v. Santa Clara University

Receipt of federal funds and consequent statutory nondiscrimination mandates does not make a private university into a state actor for purposes of S1983.

John Heineke v. Santa Clara University

Seventh Circuit: Angela Tonyan v. Dunham's Athleisure

Given empirical practice and the business model of the company, the employer's two documented lists of essential qualifications for the job suffice to deny the ADA claim.  Even if the employee were to delegate those tasks, it would amount is substantial enough that it would amount to a delegation of the job itself.

Angela Tonyan v.  Dunham's Athleisure 

Fourth Circuit: Douglas Fauconier v. Harold Clarke

Prisoner ADA complaint appropriately equitably tolled during exhaustion of administrative remedies required by federal statute.

Prison officials' reliance on a medical classification in the stated denial of all prospects of work states a claim under the ADA.

Prisoner pro se complaint asserting unequal treatment of comparators and lack of administrative explanation for informal denying the chance to work based on a medical classification states an Equal Protection claim.

Eleventh Amendment bars Equal Protection action for damages against prison administrators, but not the ADA action for damages, as an actual violation of the 14th amendment is alleged.

Claims against individuals barred under Qualified Immunity, since a clearly established right would be plain to every reasonable official, and such is not the case here.

Inmate transfer moots all claims for equitable relief except those against Director of agency.

Douglas Fauconier v. Harold Clarke 

Seventh Circuit: Janet Kotaska v. Federal Express Corporation

Where an essential qualification for employment specifies a range of weight up to a certain amount, a showing of the genuine issue for trial on the maximum amount does not mean that there isn't a genuine issue of fact about whether the plaintiff's capabilities in the range beneath the maximum amount were insufficient.

A showing of capable engagement in the task for three weeks is insufficient to establish that all essential qualifications were met.

Where an employer unknowingly rehires after a year, the initial termination is sufficient nondiscriminatory reason for a second termination.

Dissent: ADA plaintiffs shouldn't have the burden of production for the essential qualifications for the task.  Circuit split flagged.  Summary judgment inappropriate where plaintiff has dispelled initial defense theory.   Second termination letter actually discussed protected conduct.

Janet Kotaska v.  Federal Express Corporation

Sixth Circuit: John George v. Youngstown State Univ.

Where the alleged retaliation under Title VII does not immediately follow the protected conduct, but there is a logical reason for the delay, a genuine issue of material fact can arise for trial.

Two contrasting theories of budgetary circumstances can offer a genuine issue for trial as to pretext for the adverse employment action.

Sufficient evidence in the record for trial on non-rehiring claim; other party's waiver of administrative exhaustion in arguing merits becomes law of the case for appeals.

Dissent: Only relevant temporal factor in stating a case for retaliation is the date the employer learns of the protected conduct; facts don't state a case for retaliation generally.

John George v. Youngstown State Univ. 

Seventh Circuit: Scott McCray v. Robert Wilkie

Employer's refusal to replace vehicle in a timely manner states a claim under the Rehabilitation Act.

Claim originating in assignment of offices not pellucid enough, will be developed on remand.

Conduct potentially violating Title VII raised in employer's motion to dismiss insulated employer from Title VII claim when plaintiff didn't make the argument in the reply brief.

Scott McCray v. Robert Wilkie

DC Circuit: Timothy Jeffries v. William Barr

Summary judgment appropriately granted for deft prior to discovery in Title VII suit, given facts in evidence, but abuse of discretion to deny non-movant's challenge as to one claim, as employer's apparent non-compliance with its policy on priority candidates might reveal facts that substantiate the claim.

Timothy Jeffries v. William Barr

Ninth Circuit: Andrea Schmitt v. Kaiser Foundation Health Plan

Statute's nondiscrimination provision's reference to other civil rights laws implicates, but does not guarantee, the protections in those laws.

Prior caselaw as to previous statutes indicating that they don't cover health plan design are superseded by the reference in the present Act.

State enactment of plan's legislation cannot abrogate federal nondiscrimination provisions.

Specific protections don't imply that they are exhaustive -- no expressio unius.

Blanket exclusion of all treatments except one for a particular condition does not state a claim for discrimination.

Allegedly discriminatory conduct towards those with a certain condition is not proxy discrimination towards those with the associated disability.

 Andrea Schmitt v. Kaiser Foundation Health Plan

Third Circuit: Holly Judge v. Shikellamy School District

Presumptively valid and willful resignation forecloses any direct claim of discriminatory duress.  Multi-factor test from 9th governs.

http://www2.ca3.uscourts.gov/opinarch/172189p.pdf

Casey Taylor v. Burlington North R.R.

Certified question & bench memo.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/17/16-35205.pdf

First Circuit: Bonilla-Ramirez v. MVM, Inc.

In establishing similarly-situated comparators for a disparate treatment claim based in misbehavior, the misbehavior of the comparators must be proved.

Retribution claim must be proven beyond proximity in time.

http://media.ca1.uscourts.gov/pdf.opinions/17-1512P-01A.pdf

Fourth Circuit: Rosy de Reyes v. Waples Mobile Home Park

Landlord's requirement that all adults establish legal residency, prompting a disparate impact on one ethnic group, states a claim under a theory of disparate impact.  At summary judgment stage, that impact is then balanced against justifications for the policy.

http://www.ca4.uscourts.gov/opinions/171723.P.pdf

Sixth Circuit: John Doe v. David Baum

Where the facts are in dispute and there are competing narratives of events, due process requires that public universities allow either the accused student of his or her representative directly to question the accuser.

A judicial proceeding in which everyone of one gender is believed and all those of the other gender are disbelieved states a claim under Title IX.

Concurrence -- Title IX violation states a claim; some grounds for the claim improperly excluded by this holding, as they're more appropriate to the summary judgment standard.

Dissent -- Due Process right to confront the witness can be vindicated by written questions.  Insufficient particularized causal connection for Title IX claims.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0200p-06.pdf

Third Circuit: Carol Vorchheimer v. Philadelphian Owners Association

To state a claim for denial of necessary housing accommodation, plaintiff must establish the necessity of the accommodation beyond alternate solutions proposed by the landlord.  Joint agency statement indicating that the tenant has a right to their suggested modification has little power to persuade, as it does not explicitly purport to interpret the statute.

http://www2.ca3.uscourts.gov/opinarch/171738p.pdf

Third Circuit: In re: Tribune Media Company

Bankruptcy Court had statutory jurisdiction to resolve discrimination claims against debtor as a matter of law, as plaintiff consented to jurisdiction, and the statutory carve-out that would usually move personal-injury tort claims to the District Court is not a jurisdictional provision.

Implicit consent to jurisdiction suffices for a Bankruptcy Court to resolve the claim; by filing and seeking judgment from the court, Plaintiff consented to jurisdiction as to constitutional concerns.  Constitutional challenges to the court's jurisdiction might have been lodged during the proceedings or in a motion challenging the denial of claim, making the present challenge untimely.

As plaintiff received notice and opportunity to be heard, there were no Due Process violations inherent in the Bankruptcy forum; consent to forum waived the jury trial right; challenge to local counsel rule waived for not being raised below.

Post-discharge, a tort liability claim that was incorporated in the bankruptcy settlement cannot be transferred or remanded.

Given absence of incidents in employee's file, employer not liable for racial animus under respondeat superior.

Employee's termination for fighting during the incident of alleged racial animus had a sufficiently non-discriminatory rationale.

http://www2.ca3.uscourts.gov/opinarch/172449p.pdf