— Posts About Discrimination

Narendra and Paul file Amicus Brief in Support of the UNC Center for Civil Rights

Narendra Ghosh and Paul Smith have submitted an amicus brief on behalf of the North Carolina Advocates for Justice in The Royal Oak Concerned Citizens Association et. al. v. Brunswick County.  The Plaintiffs are represented in part by the UNC Center for Civil Rights.

The Plaintiffs advocate the interests of the residents of Royal Oak, a historically African American community in majority-white Brunswick County.  Plaintiffs allege in part that Brunswick County has engaged in a pattern and practice of discrimination against their community because of its racial composition.  Royal Oak has long been denied sewer and water access and has disproportionately born the burden of the county’s undesirable land uses, including the longstanding operation of a landfill and the relocation of an animal shelter to the community from a predominantly white neighborhood.  Brunswick County recently voted to rezone two properties within the community for industrial use, with express intent to expand the existing landfill.  As a result of Brunswick County’s actions, the Plaintiffs allege that the value of the Royal Oak residents’ land has declined, that residents have been forced to undertake great expense to secure drinkable water, and that some homes have been rendered uninhabitable.  Plaintiffs sued the county on a number of grounds.  On September 7, 2012, the trial court denied the majority of Brunswick County’s motion to dismiss.  The County appealed this order.

Narendra and Paul’s brief addressed the viability of the Plaintiffs’ claims under the North Carolina Fair Housing Act, which in part prohibits local governments from making land use decisions that have the intent or effect of discriminating against residents on the basis of their race.  Defendant argued that Plaintiffs’ claims under the Act were not viable because they had not first elected to pursue administrative relief, and because the County had yet to obtain a final permit for the landfill expansion.  The amicus brief discusses the extent to which imposing an administrative exhaustion requirement on claims under the North Carolina Fair Housing Act would defeat the rights the Act seeks to create.  It also argues that it would be appropriate for the court to enjoin the expansion of the landfill at this time and that, regardless, the justiciability of the entire controversy does not turn on the availability of that one form of relief.

For more information, see this news report discussing the controversy and this op-ed from the News & Observer.

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Burton and Narendra File Amicus Brief with NC Supreme Court in Defense of the Racial Justice Act

Burton Craige and Narendra Ghosh have submitted an amicus brief on behalf of the North Carolina Advocates for Justice in North Carolina v. Marcus Reymond Robinson.  The case addresses the first instance of a North Carolina death row inmate having his death sentence reduced to life in prison under the North Carolina Racial Justice Act.

The Racial Justice Act was a landmark piece of legislation enacted in 2009.  It permitted individuals on death row to use statistical analysis when arguing that race played a role in their sentencing; those death sentences found to have been sought or obtained on the basis of race under the act would be commuted to life without possibility of parole.  The Racial Justice Act was weakened in 2012, and repealed in 2013.

Marcus Robinson was the first death row inmate to have his sentence commuted to life without possibility of parole under the RJA.  In April of 2012, Judge Gregory Weeks found that Robinson had introduced “a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina” that had been largely unrebutted by the State.  Judge Weeks ultimately concluded that prosecutors had intentionally used race as a significant factor when striking potential jurors, and found that race had been a significant factor in determining when the death penalty was sought and imposed at the time of Robinson’s trial.  Judge Weeks therefore commuted Robinson’s death sentence to life without the possibility of parole.  Read this article from the New York Times for more information on Mr. Robinson’s case.

The State appealed Judge Week’s order to the North Carolina Supreme Court.  Burton and Narendra’s amicus brief discusses the nature of racial bias in jury selection, addresses the limited extent to which long-standing constitutional doctrines protect against such bias, explores the manner in which the Racial Justice Act remedied these deficiencies, and argues that Judge Weeks correctly applied the Racial Justice Act in commuting Robinson’s sentence.

 

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Court of Appeals Rejects REDA Claim by Pro Se Plaintiff

In Fatta v M & M Properties Management, Inc. the North Carolina Court of Appeals heard an appeal by a pro se plaintiff of the trial court’s granting of summary judgement.  Plaintiff worked for the company in one of their hotels as a property manager.  During Plaintiff’s training, he was injured while cleaning a room.  He reported the injury to his supervisor and said he would file workers’ compensation paperwork if the injury was more severe than a pulled muscle.  A day after he reported his injury to his supervisor, Plaintiff was given a first and final written warning; five days after the warning Plaintiff was terminated.  Plaintiff filed a Form 18 with the North Carolina Industrial Commission five days following his termination.

Plaintiff contends that the company violated the Retaliatory Employment Discrimination Act (REDA) by firing him while he was engaged in protected activity, namely threatening to file a workers’ compensation claim.  The Court of Appeals agreed that threatening to file a workers’ compensation claim is protected activity.  However, the Court affirmed the trial court’s order because Plaintiff could not show a causal relationship between his termination and threatening to file a claim.  Plaintiff argued that the close proximity in time between when he reported his injury and was terminated showed that Defendant had unfairly retaliated against him for threatening to file a workers’ compensation claim.  However the Court stated that the proximity of the date of injury to the termination date is not enough, standing alone, to show a causal connection.

Given the really close timing here, the Court’s decision seems incorrect.  But, it appears that because the plaintiff was not represented by an attorney, he did not develop the facts in his case as well as he could have. There well could have been more incriminating facts that were not put before the court.

Categories: Judicial Decisions Tags: , , , , , , , , , , ,

The 4th Circuit CoA Holds that Discrimination in the Offers of Severance Agreements can be Actionable Under Title VII

In Gerner v. County of Chesterfield, Karla Gerner was a twenty-five employee of the county whose position was eliminated in a reorganization.  She was offered a severance agreement that included three months of pay, which she rejected.  The county then terminated her without any severance.  She filed suit under Title VII, alleging sex discrimination in that male counterparts received better severance offers than she did, citing four examples.  The district court granted the defendant’s motion to dismiss based on there being no adverse employment action.

The Fourth Circuit unanimously reversed.  In Hishon v. King & Spalding, 467 U.S. 69 (1984), the Supreme Court held that any “benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all.”  Id. at 75.  In situations like that at hand, in which an employee did not volunteer for a change in employment benefits or retain a job in lieu of a new benefit, courts have consistently recognized that the discriminatory denial of a non-contractual employment benefit constitutes an adverse employment action.  The district court thus erred in concluding a discriminatory denial of a favorable severance offer – a non-required benefit – could not be an adverse employment action.  The district court also erred in concluding that any discriminatory action took place after the employment ended.  First, Gerner alleged that she was still employed when she got the poor severance offer.  Second, even if she were not, “Title VII protects both current and former employees from discriminatory adverse employment actions.”  The Court thus reversed and remanded for the district court to determine if the severance offer was “part and parcel of the employment relationship.”

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The 4th Circuit CoA Reversed the Granting of Summary Judgment to the employer, Finding Merit in a Claim of Discriminatory Discharge

In Burgess v. Bowen, Denise Burgess, an African American female, worked as an executive for the Special Inspector General for Iraq Reconstruction (“SIGIR”).  Burgess had requested an administrative assistant be hired for her and another African American woman, Patricia Redmon, was hired.  Ginger Cruz a former employee of SIGIR came back to the agency and was installed in a director position directly supervising Burgess in June 2007.  Cruz immediately took a disliking towards Burgess and made comments like “people who file discrimination complaints are weak links in the chain . . . looking to excuse their own personal failing.”  In July 2007, Cruz fired Redmon.  Burgess sent an email to Cruz questioning the “fairness and equality” of the termination.  Later that day Cruz called Burgess into a meeting and announced that her position was being eliminated because of budget constraints.  Cruz put Burgess on administrative leave.  Separately, she began the process of drafting a job description for a new, but very similar job.  This job was given to a white woman who had previously worked at SIGIR, but was terminated in part for performance.  It is typical for terminated or laid off employees of SIGIR to receive other jobs within the agency.  Despite records of Burgess’s laudable performance, she was not given another position.  Burgess was the only African American member of SIGIR’s senior management at the time, the only member of senior management to be involuntarily terminated, and the only SIGIR employee terminated as part of the agency’s reorganization.

Burgess claimed Title VII violations of discriminatory discharge, failure to transfer, and retaliation.  The district court granted summary judgment to the defendant on all claims.  The Fourth Circuit unanimously reversed as to all claims.  Burgess first argued that she suffered racial discrimination when her position was terminated and when a less qualified white woman was selected for the new position created in its place.  Unlike the district court, the Court found Burgess had made out her prima facie case because she had presented sufficient evidence that the new position was functionally equivalent to her old one.  The Court also found “significant inconsistencies” in the purported rationale that budget cuts necessitated Burgess’s termination, and held that “such evidence standing alone was sufficient to show pretext after SIGIR proffered its nondiscriminatory explanation.”

With regard to the denial of transfer claim, the defendant’s purported rationale was that Burgess “was not the person for the job,” and was unwilling to do low-level tasks.  On this point, Burgess pointed to evidence showing that she was awarded a bonus for exemplary performance and that she routinely worked late hours to execute the functions of the Public Affairs office.  Also, her replacement had previously been fired for poor performance.  And, SIGIR’s rationale was so vague that it could conceal racial animus.  Crediting this evidence, the Court found it showed “inconsistencies undermining the credibility of SIGIR’s proffered explanation,” and under Reeves, Burgess was required to do no more to survive a motion for summary judgment.

On the retaliation claim, the Court found that Burgess’s complaint regarding Redmon, namely the email to Cruz, constituted protected activity.  With causation, as in Okoli, the Court found it “deeply suspicious” that Cruz took all of her actions against Burgess only after Burgess challenged the fairness and equality of the decision to terminate Redmon.  Notably, Cruz admitted that she would have considered offering Burgess another position had the conversation during Burgess’s termination meeting gone differently.  And, as with the discrimination claims, the evidence of pretext was sufficient to overcome summary judgment.

Categories: Judicial Decisions Tags: , , , ,

Fourth Circuit Supports Sex Harassment and Retaliation Claims

The Fourth Circuit recently issued an excellent decision in Okoli v. City of Baltimore.  This case presents claims under Title VII action for sexual harassment and retaliation (termination) for reporting the harassment.  Amazingly, the trial court dismissed the case.  The Fourth Circuit reversed, concluding that the plaintiff’s allegations that her boss forcibly kissed her, fondled her leg, propositioned her, asked sexually explicit questions, described sexual activities he wished to perform, and then, after she spurned the advances and filed a harassment complaint, fired her are sufficient to support claims of hostile work environment, quid pro quo sex harassment, and retaliation.

Categories: Judicial Decisions Tags: , , , , , , , ,

Supreme Court Issues Important Decision in Discrimination Case

In Staub v. Proctor Hospital, the US Supreme Court just issued an important unanimous decision in this military-service-based discrimination case.  This case concerns the so-called “cat’s paw” theory of liability, under which one supervisor acts with discriminatory intent against the plaintiff, but the plaintiff is actually fired by another supervisor.  The case arose under the Uniformed Services Employment and Reemployment Rights Act (USERRA), which protects members of the military from workplace discrimination based on their military position or service.  The Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”

Because the language of USERRA is very similar to Title VII, this principal likely also applies to cases of race and sex discrimination at least.  (More coverage here, here.)

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Patterson Harkavy Defeats Summary Jugment in Sexual Harassment Case

In the case of Pascoe v. Furniture Brands International, Judge Frank Whitney in the Western District of North Carolina denied the defendants’ motion for summary judgment on plaintiff’s claims of sexual harassment today.  The case will now proceed to trial, which is scheduled for later this month.  Ann Groninger and Joshua Van Kampen represent the plaintiffs, Pam Pascoe and Margaret Tambling, against their former employers in this case.

Judge Whitney did not issue a written decision, but plaintiff’s memorandum in opposition to summary judgment well describes this case:

This case raises a very poignant and present question, which is the extent of an employer’s liability under state and federal law for the conduct of a seemingly mentally unstable supervisor who tormented his female employees with threats of violence, including gun violence, surveillance of their homes, and numerous bizarre sexual comments. Regrettably, the conduct at issue in this case is a cautionary tale of an employer that flubbed the handling of a potentially dangerous situation by initially ignoring glaring warning signs, subsequently severely under-reacting to them, and which ultimately chose to circle the wagons around the proverbial outlaw, rather than act as a responsible member of our corporate community. Thankfully, Spicer did not turn his guns on these women as he said he might, but plaintiffs feared that he was fully capable of physically harming them. They have carried emotional scars left by Mr. Spicer’s conduct; injuries made worse by their employer’s betrayal of them. Defendants may aim to use their summary judgment motions to establish a low water mark of the protections afforded women in the workplace in North Carolina; however, plaintiffs respectfully submit that they have marshaled sufficient facts to permit a jury to answer that question.

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Fourth Circuit Rules USERRA Retaliation Claim Can Go To Trial

In a recent unpublished opinion, Bunting v. Town of Ocean City, the Fourth Circuit partially overturned a grant of summary judgment and allowed the plaintiff to proceed to trial on his USERRA retaliation claim.   USERRA is a federal statute that protects armed service members from being discriminated in employment because of their service.  Like other anti-discrimination laws, USERRA also protects against employer retaliation because of filing a USERRA complaint.

In this case, a police sergeant filed a USERRA complaint about service-based discrimination and was subsequently denied promotions that he applied for.  While the Fourth Circuit agreed there was not enough evidence to substantiate the initial USERRA complaint, the plaintiff had produced strong evidence of the subsequent retaliation by his employer.   Thus, summary judgment was partially reversed, allowing the retaliation claim to proceed to trial.

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EEOC Issues New GINA Regulations

On November 9, 2010, the Equal Employment Opportunity Commission (EEOC) issued its final regulations implementing the employment-related provisions in Title II of the Genetic Information Non-Discrimination Act of 2008 (GINA).  Details on the new regulations can be found at the Federal Register and at the EEOC.

Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts employers and other entities from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.  More details on GINA can be found at the EEOC.

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