Seventh Circuit: Warren Johnson v. Advocate Health and Hospitals

Reported statement of partially anonymous comparator as to their pay is neither hearsay nor sufficient to establish the validity of the comparator.

Descriptions of comaparators on unfair promotion claim, unfair assignments claim, and termination claim were not specific enough to establish them as legitimate.

Sworn statements and depositions averring discriminatory language suffice to present an issue for trial.

Even where a contractor performs many supervisory duties, a supervening agent who retains the ability to hire, fire, and discipline workers (beyond "rubber stamp" approval) can be liable for a claim of workplace discrimination.

Concur/Diss:  Reported workplace speech was too sporadic to present an issue of a hostile work environment.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-08/C:16-3848:J:Rovner:aut:T:fnOp:N:2168250:S:0

Seventh Circuit: EEOC v. CVS Pharmacy, Incorporated

Award of fees against the Commission was an abuse of discretion, as there was a colorable argument that neither the Commission's own conciliation requirement nor the statutory requirement for same was a prerequisite to suit.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-08/C:17-1828:J:Wood:aut:T:fnOp:N:2168314:S:0

First Circuit: Caraballo-Caraballo v. Administracion de Correccion

In assessing comparators for a claim of workplace discrimination, the plaintiff's demonstrated ability in performing the present job should be taken into account.

Transfer to the Commissary, even absent diminution in rank or pay, was a sufficiently adverse employment action.

http://media.ca1.uscourts.gov/pdf.opinions/16-1597P-01A.pdf

First Circuit: Doe v. Trustees of Boston College

State contractual guarantees of good faith and fair dealing apply to a student's relationship with their university; where procedures are published, this duty is displaced by a contractual guarantee of compliance with the stated procedures.

While the school's procedures were generally in accord with the published rule, possibly prejudicial ex parte communications during the tribunal's deliberations present a genuine issue of material fact for trial.

Despite plaintiff's indications of intent to file a lawsuit, an email from an officer of the deft promising an independent investigation did not create a binding contract, as plaintiff never evinced a willingness to strike a deal -- there was no consideration.

Statistics alone can't establish a Title IX claim on the outcome or for deliberate indifference; the specific mechanism of discriminatory action needed to be identified.

Procedural unfairness in student disciplinary decisions sounds in contract, not tort.

http://media.ca1.uscourts.gov/pdf.opinions/16-2290P-01A.pdf

Ninth Circuit: White v. Square, Inc.

Visiting a website with the intent to use its services and then declining to advance past a user agreement that incorporated an allegedly discriminatory bar on the use of its services constitutes a sufficiently concrete and particularized Article III injury.

Questions certified to California: whether a patron must use a business services to qualify for the statutory antidiscrimination provisions at issue, or if merely presenting themselves is sufficient.  Also -- what the internet correlative to this standard might be.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16-17137.pdf

Ninth Circuit: Ellis v. Harrison

State court's holding that Habeas petitioner must establish prejudice from his counsel's racial animus by a preponderance was an unreasonable application of federal constitutional law.

To establish prejudice from counsel's racial animus, petitioner must establish either his or her knowledge of the animus at a critical phase of the proceedings, resulting in a communications breakdown, or another adverse effect of the animus.

Concurrence to per curiam: prejudice should be the presumption in strategic decisions once animus is established.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16-56188.pdf

Eighth Circuit: Mahn v. Jefferson County

In First Amendment retaliation case, once the plaintiff produces substantive proof from which the finder of fact can infer that the protected conduct was a motivating factor, the full burden of proof to establish a nondiscriminatory motive for the action passes to the deft.

At summary judgment, this nondiscriminatory explanation must be indisputable.

Reinstatement is an equitable remedy permitted against a state official under Ex Parte Young.

Allegations against second official and municipality too speculative to present issue for trial.

http://media.ca8.uscourts.gov/opndir/18/06/161731P.pdf

Seventh Circuit: Thomas Wilson v. Warren County, Illinois

FHA, S1983, Discrimination



Deliberate photographing of property, conduct that triggered psychological hospitalization, would have been done regardless of the plaintiff's condition, and therefore cannot be the basis for a claim of discrimination under the FHA.

Personal and and municipal S1983 claims barred, as officials were unaware that the repossession was unlawful.

Substantive due process not implicated, as a verbal statement of the law was insufficient to create a state-sponsored danger of inaction during the subsequent repossession.


Thomas Wilson v.   Warren County, Illinois

Fifth Circuit: Helen Nicholson v. Securitas Security Svc USA

Employment, Discrimination


Right to control the work of an employee is not relevant under the federal age discrimination statute where there is an admission of employment.

Staffing services agreement to end employment at the request of the client company can create a genuine issue of material fact as to complicity in discrimination where the usual inquiries are not made.


Helen Nicholson v. Securitas Security Svc USA

Seventh Circuit: Laura Hatcher v. Board of Trustees

Employment, Discrimination, Title VII


Employee's mistaken belief that statute compelled reporting of misconduct did not transform the speech in the context of employment to protected speech.

No genuine issue of fact over pretextual nature of nondiscriminatory motive, given decisions of impartial committee and subjective judgement of decisionmaker. 


Laura Hatcher v.   Board of Trustees

Eighth Circuit: Lovelle Banks v. John Deere and Company

FRCP, Discrimination, Title VII


Unsworn testimony and a party's own interrogatories provided  insufficient evidence that the employment action and work environment were inappropriately race-based.

Lovelle Banks  v.  John Deere and Company

Seventh Circuit: Gilbert Knowles v. Randy Pfister

Discrimination, Religion, Injunctions


Given statutory rights to religious expression, prison inmate demonstrates the possibility of irreparable harm and likely success on the merits in claim seeking to wear a Wiccan pendant.


Gilbert Knowles v.   Randy Pfister

Eighth Circuit: Gary Smith v. United Parcel Service

Discrimination (Title VII?)


Plaintiff did not establish pretextual nature of claim that conduct presented a nondiscriminatory reason for the employment action.



Gary Smith  v.  United Parcel Service

Seventh Circuit: Susan Shott v. Robert Katz

FRCP, S1981, Discrimination


Where a claim is dismissed without prejudice, an appeal filed prior to the final date for amendment becomes timely after that date has passed.

Under S1981, the claimed retaliation need not be employment-related.  It suffices that the claim arise from contract or employment-related events.

Implied retaliation by co-workers theory implies some level of agency with the employer.

Susan Shott v. Robert Katz 

First Circuit: Burns v. Johnson

Discrimination, Title VII, Employment


Circumstantial evidence can suffice to establish a claim under a mixed-motive theory of discrimination.

Discrimination need not be both severe and pervasive.

Fear of retaliation presents a genuine issue of material fact as to employer liability, despite reporting procedures.


Burns v. Johnson

Sixth Circuit: Carrie Braun v. Ultimate Jetcharters

JMOL, FRCP, Discrimination


Given proximacy of protected conduct to the ending of employment and refutation of the nondiscriminatory bases for the action, court properly declined to issue JMOL.  Some question as to whether the grounds for the motion were properly preserved.

Proper to amend the judgment from Inc. to LLC corporate form, given representations by the corporation at trial and subsequent refusal to recognize the judgment as valid against the LLC.



Carrie Braun v. Ultimate Jetcharters

Seventh Circuit: Eileen Felix v. Wisconsin Department of Transportation

Discrimination, FMLA, Employment


Medical inquiry that considered the prospective behavior of the employee did not therefore have to establish a direct threat in order to justify the ending of employment.


Eileen Felix v.   Wisconsin Department of Transportation

Fourth Circuit: Monica Guessous v. Fairview Property Investments

Discrimination, S1981, Statute of Limitations


As the proof of nondiscriminatory motive followed the protected activity, there's sufficient evidence to go to trial on pretext.

The distinction between inappropriate comments and comments indicating animus is one for the finder of fact.

Individually time-barred discriminatory acts can still serve as basis for a timely hostile environment claim.

Broad ethnic aspersions can also suggest specific racial animus.

Totality shoudl be considered in hostile environment claims.


Monica Guessous v. Fairview Property Investments

Second Circuit: Walsh v. NYCHA

Title VII, Discrimination

Evidence as to whether the hiring decision was discriminatory must be considered holistically.

Dissent -- Totality analysis problematic when asserting pretext.


Walsh v. NYCHA

Seventh Circuit: Arlene Simpson v. St. James Hospital

Discrimination, Title VII

Anecdotal evidence insufficient to establish valid comparators.


Arlene Simpson v. St. James Hospital