2002-12

UNITED STATES SUPREME COURT CASES

A. Supreme Court Holds That A Hostile Work Environment Claim Will Not Be Time-Barred So Long As All Acts Are Part Of The Same Unlawful Employment Practice And At Least One Falls Within The Filing Period

In National Railroad Passenger Corp. v. Morgan 2002 DJDAR 6371 (6/10/02), the United States Supreme Court unanimously ruled that the Ninth Circuit's continuing violation doctrine does not apply to employees raising claims for discrete acts of discrimination or retaliation. However, the Court decided 5-4 that the doctrine does apply to hostile environment claims. ⁽¹⁾

The plaintiff, Abner J. Morgan, filed a charge of discrimination and retaliation against National Railroad Passenger Corp. ("Amtrak") with both the EEOC and the DFEH, in which he alleged, among other things, that he was subjected to a racially hostile work environment throughout his employment with Amtrak. Morgan filed his EEOC charge in February 1995. The EEOC issued a right to sue letter on July 3, 1996. Morgan filed his lawsuit on October 2, 1996.

While some of the incidents of harassment occurred within 300 days of the time that Morgan filed his EEOC charge, many took place prior to that time period. ⁽²⁾ The district court granted Amtrak summary judgment in part, holding that the company could not be liable for conduct that occurred prior to May 1994. In so ruling, the court relied on the "reasonable knowledge" test established by the Seventh Circuit in Galloway v. General Motors Service Parts Operations (1996) 78 F.3d 1164: "[A] plaintiff may not base [the] suit on conduct that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on that conduct, as in a case in which the conduct could constitute, or be recognized, as actionable harassment only in the light of events that occurred later, within the period of the statute of limitations." The court held that because Morgan believed that he was being discriminated against at the time that the acts occurred, it would not be unreasonable to expect that Morgan should have filed an EEOC charge on these acts before the limitations period on those claims ran.

Morgan appealed. The Ninth Circuit reversed, relying on its previously articulated continuing violations doctrine, which "allows courts to consider conduct that would ordinarily be "time-barred" as long as the untimely incidents represent an ongoing unlawful employment practice." Contrary to the Seventh Circuit's approach, the Ninth Circuit held that its precedent "precludes such a notice limitation on the continuing violation doctrine."

The Ninth Circuit ruled that in order to show a continuing violation, a plaintiff must demonstrate a serial violation, a series of related acts one or more of which are within the statutory period, or a systemic policy or practice of discrimination that operated in part within the limitations period. Employing this analysis, the Ninth Circuit found an unresolved factual issue as to whether Morgan could show a continuing violation on his discrimination claim. The allegations "reveal a consistent pattern of similar employment actions over the entire five-year period of employment, perpetrated by the same core group of managers. Such incidents are not discrete or isolated," the court said.

Rejecting this reasoning, the Supreme Court formulated an approach based on the language of section 2000e-5(e)(1), Title VII's charge filing provision that "specifies with precision" the prerequisites that a plaintiff must satisfy before filing suit. For the Court's purposes, the critical sentence in the provision is: "A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred," the operative terms being: "shall," "after ... occurred" and "unlawful employment practice." The Court stated that the term "shall" makes timely filing mandatory. "Occurred" means the practice took place in the past. Taken together, the provision permits a plaintiff to file a charge with the EEOC within180 (or 300) days after the unlawful practice happened.

Based on this statutory interpretation, the Court concluded that the two critical questions to be addressed were: (1) what constitutes an "unlawful employment practice" and (2) when has that practice "occurred." The Court provided two answers to these questions: one answer applied to those claims alleging discrete discriminatory acts; and one answer applied to those claims alleging a hostile work environment.

With respect to discrete acts of discrimination or retaliation, the Court stated that the act "occurred" on the day that it happened. A party, therefore, must file a charge within 180/300 days after the date of the act or lose the ability to recover for it. The Court stated that each discrete act "starts a new clock for filing charges alleging that act" and plaintiffs cannot string together related discrete acts that fall inside and outside the limitations period.

In reaching this conclusion, the Supreme Court expressly rejected Morgan's argument that the term "practice," as used in the filing provision, connotes an ongoing violation that can endure or recur over a period of time. Again, focusing on the statute itself, the Court noted that section 2000e-2 defines in detail the sorts of actions that qualify as "unlawful employment practices," many of which are discrete acts. The Court further noted that there is no language in the statute that would indicate that the term "practice" converts related discrete acts into a single unlawful practice for timely filing purposes.

The Court did go on to state that its focus on discrete acts did not preclude an employee from relying on past actions to create a case of discrimination. The Court stated: "The existence of past acts and the employee's prior knowledge of the occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed." The Court further acknowledged that prior acts can be used as background evidence to support a timely charge and that the filing period is subject to equitable doctrines such as waiver, estoppel, tolling and laches, where appropriate.

While finding that past untimely acts could not be used to create a "practice" of discrimination in most Title VII cases, a narrower majority of the Court ruled in Part II of the decision that the holding did not apply to hostile environment cases. Saying "their very nature involves repeated acts of conduct," the 5-4 majority said that a hostile environment "occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own."

Returning again to the statute, the Court concluded that the language of Title VII supports the idea that hostile environment claims are comprised of a series of separate acts that collectively comprise one unlawful employment practice. Therefore, "it does not matter for purposes of the statute that some of the component acts of the hostile work environment fall outside the statutory time period." Rather, if one act contributing to the claim occurs within the filing period, the entire period of the hostile work environment may be considered by the court for purposes of determining liability. ⁽³⁾

The Court stated that its ruling was reinforced by the fact that Title VII does not bar an employee from recovering damages for portions of the hostile environment that fall outside of the time period. The Court reasoned, "If Congress intended to limit liability to conduct occurring in the period within which the party must file the charge, it seems unlikely that Congress would have allowed recovery for two years of backpay" under section 2000s-5(b).

Finally, the Court added that the hostile environment limitation is undermined by the different timeliness periods (180 days versus 300 days) that vary depending on whether or not the violation occurs in a state with a work-sharing agreement with the EEOC. Again, the Court reasoned that Congress could not have intended to limit liability based on where one lives or works. (According to the Court, that concern does not apply to discrete acts of discrimination because liability is not dependent upon proof of repeated conduct.)

Presumably anticipating the frustration of employers, the Court emphasized that its ruling does not leave employers "defenseless" against employees who bring hostile environment claims that extend over long periods of time. The Court noted that an employer is entitled to raise the defense of laches.

Justice Sandra Day O'Connor was joined by Chief Justice Rehnquist and Justices Scalia and Kennedy in dissenting to Part II of the decision. The dissent argued that although a hostile environment claim is a general atmosphere of discrimination not completely reducible to discrete discriminatory acts, each day the worker is exposed to a hostile environment may still be treated as a separate occurrence for purposes of calculating when a claim must be filed.

The dissent further argued that treating hostile environment claims as a single occurrence contradicts the policies behind Section 2000e-5(1) and creates statute of limitations problems when plaintiffs sleep on their rights for an extended period of time. While recognizing the two year limitation on back pay addresses some of these concerns, other liability may be assessed based on long-past occurrences.

Citing statutory limitations issues in the antitrust and RICO settings, the dissent argued that the majority would permit "bootstrapping in the Title VII context" by permitting stale hostile environment claims to be revived simply because the hostile environment continued into the charge-filing period.

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B. Supreme Court Holds That An Employer May Refuse To Hire A Worker Whose Disability On The Job Would Pose A Direct Threat To His Own Health

In Chevron U.S.A., Inc. v. Echazabal, 2002 DJDAR 6379 (6/10/02), the United States Supreme Court, reversing a Ninth Circuit opinion, unanimously held that the Americans with Disabilities Act ("ADA") permits an EEOC regulation, under the terms of which an employer may refuse to hire an individual because his performance on the job would endanger his own health due to a disability.

Beginning in 1972, the plaintiff, Mario Echazabal, worked for independent maintenance contractors at a refinery owned by defendant, Chevron U.S.A., Inc. ("Chevron"). In 1992 and then again in 1995, he applied for a job directly with Chevron, which offered to hire him if he could pass the company's physical examination. Each time, the examination showed liver abnormality or damage, the cause of which was Hepatitis C, which Chevron's doctors said would be aggravated by continued exposure to toxins at Chevron's refinery. In each instance, Chevron withdrew its job offer and the second time it requested that the independent contractor reassign Echazabal to a job without exposure to harmful chemicals or to remove him from the refinery altogether. Echazabal was laid off in 1996.

Echazabal filed suit, claiming that Chevron violated the ADA in refusing to hire him or even to let him continue working in the plant because of his liver condition. Relying on an EEOC regulation which allowed an employer to assert the threat-to-self defense (29 C.F.R. Û 1630.15(b)(2) (2001)), Chevron argued that Echazabal's own health would be at risk if it hired him. Although two of Echazabal's medical witnesses disputed Chevron's judgment that Echazabal's liver function was impaired, the district court granted summary judgment in favor of Chevron. It held that Chevron acted reasonably in relying on its own doctors' medical advice, regardless of the accuracy of the advice.

On appeal, the Ninth Circuit asked for briefs on a threshold question not raised before: namely, whether the threat-to-self regulation exceeded the scope of permissible rule making under the ADA. The Ninth Circuit concluded that it did, reasoning that while the text of the ADA allows employers to refuse to hire those who pose a threat to others, the laws says nothing about the risk to the disabled employee. By specifying only threats to others, the Ninth Circuit reasoned, Congress was furthering a policy against paternalism in the workplace. The Ninth Circuit also rejected Chevron's argument that Echazabal was not "otherwise qualified" based on his disability, holding that the ability to perform a job without risk to one's own health was not an "essential function" of the job.

Because the Ninth Circuit's decision conflicted with an Eleventh Circuit decision, Moses v. American Nonwovens, Inc. (11^th Cir. 1996) 97 F.3d 446, and "raised tension" with a Seventh Circuit decision, Koshinski v. Decatur Foundry, Inc. (7^th Cir. 1999) 177 F.3d 599, 603, the Supreme Court granted certiorari.

Writing for the Court, Justice Souter reversed the Ninth Circuit's decision striking down the EEOC regulation, explaining that the ADA prohibits employers from discriminating against disabled persons by using qualification standards that screen them out. Nevertheless, the ADA does create an affirmative defense in cases where a qualification standard is shown to be "job related" and "consistent with business necessity." Such a qualification standard, under the statute, may include "a requirement that an individual shall not pose a direct threat to the health of safety of other individuals in the workplace."

According to the Court, by regulation, the EEOC carries this defense one step further, allowing an employer to screen out a potential worker with a disability not only for risks that he would pose to others in the workplace but for risks to his own health and safety as well. ⁽⁴⁾

Echazabal's argued that the ADA defense provision excluded threats to the worker himself by not specifying it as a qualification standard. Disagreeing, the Court said that under the ADA, legitimate qualifications that are job-related and consistent with business necessity "may include" a threat to others. The Court stated: "Far from supporting Echazabal's position, the expansive phrasing of "may include" points directly away from the sort of exclusive specification he claims."

In addition, the Court found no indication that Congress deliberately chose to exclude the threat-to-self defense. Earlier EEOC regulations interpreting the Rehabilitation Act of 1973, a precursor to the ADA, recognized an employer's right to consider threats to self and others, even though the statute did not address threats to self. The Court pointed out that in enacting the ADA, Congress deliberately used identical language as contained in the Rehabilitation Act, knowing full well that the EEOC had interpreted that language to include a threat to self. Omitting the EEOC's reference to self-harm while using the very language that the EEOC had read as consistent with recognizing self-harm is, according to the Court, "equivocal at best."

The Court agreed with Chevron, which had argued that the regulation was reasonable because a company had an interest in avoiding time lost to sickness, excessive turnover from medical retirement or death, litigation under state tort law and the risk of violating OSHA. According to the Court, an employer's interest in avoiding the risk of violating OSHA was, alone, enough to show the regulation was entitled to survive.

Echazabel argued that there was no known instance of OSHA enforcement or even threatened enforcement against an employer who relied on the ADA to hire a worker who was willing to accept a risk to himself from his disability on the job. The Court rejected this argument, finding that even if an employer was not liable under OSHA for hiring an individual who consented to the particular dangers posed by his job, there is no denying that the employer would be "asking for trouble" by placing the ADA's interest in providing a disabled individual with the right to operate on equal terms within the workplace at odds with the policy of OSHA, which is to ensure the safety of each and every worker.

Finally, the Supreme Court rejected the argument that the EEOC regulation fosters the type of workplace paternalism that the law was meant to prevent. According to the Court, the "paternalism" that Congress aimed to eliminate with the enactment of the ADA was those instances where an employee refused to hire a disabled individual, while claiming to act for his/her own good based on an untested and pretextual stereotype. By requiring that the direct threat defense be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence, and upon an expressly individualized assessment of the individual's present ability to safely perform the essential functions of the job, the employer is precluded from illegally seeking to avoid hiring disabled persons on the pretense of preventing their harm. ⁽⁵⁾

The Court sent the case back to the Ninth Circuit, noting that on remand, the appeals court could consider whether or not Chevron engaged in the type of individualized medical assessment required by the regulation.

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CALIFORNIA CASES

A. Workers' Compensation Benefits Are Not Available For Psychiatric Injuries Caused By Workplace Gossip About Personal Life

In Atascadero Unified School District v. Workers' Compensation Appeals Board, 2002 DJDAR 5841 (May 30, 2002) (opinion filed 5/28/2002), the California Court of Appeal, Second Appellate District, held that as a matter of law an injury caused by workplace gossip about an employee's personal life does not arise out of employment.

Carrie Geredes was employed by Atascadero Unified School District ("District") as a bus driver/instructor. She and a coworker, both of whom were married, had an extramarital affair.

After the affair ended, Geredes was told by a coworker that other employees were gossiping about the affair. The gossip purportedly included name calling, including "tramp," and "husband stealer."

After becoming aware of the gossip, Geredes asked her supervisor to take steps to stop it. Both her supervisor and the assistant superintendent of human resources held meetings with the employees. After these meetings, the gossip stopped.

Geredes filed a workers' compensation claim alleging psychiatric injury from February 1999 to October 1999 from a hostile work environment and sexual harassment. The workers' compensation judge found that no compensable psychiatric injury occurred because the gossip concerned a personal matter unrelated to Geredes' employment. The Workers Compensation Appeals Board overruled the judge, finding that the injury did arise out of and in the course of employment because Geredes' coworkers were the source of the gossip and the gossip took place in the workplace.

The Court of Appeal disagreed, concluding that a finding of industrial injury is proper only where the employment plays an "active" or "positive" role in the development of the psychological condition. An injury that grows out of a personal grievance between the employee and a third party does not arise out of the employment if it occurred merely by chance during working hours in the workplace. There must be some work connection to establish compensability.

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B. Court Approves Decision To Grant Restraining Orders Against Former Employee Who Was Alleged To Have Harassed Her Co-Workers

In Chubb & Son v. McDermott, Cal.Ct. App. No. A094658 (unpublished 6/3/02), the California Court of Appeal affirmed a trial court's decision to grant four restraining orders against Kathleen McDermott, based on testimony from Chubb employees that she harassed her co-workers. The restraining orders were sought pursuant to the Workplace Violence Safety Act (Code of Civil Procedure Û 527.8.) ⁽⁶⁾

At the hearing on Chubb's petition, Connie Risser, an employee in Chubb's Denver office, testified. Ms. Risser stated that she met Ms. McDermott, a Chubb employee in the Pleasanton, California office, at a seminar. Risser introduced McDermott, who was single, to her husband's best friend, Doug Elwood. At Elwood's request, McDermott transferred from the Pleasanton office to Chubb's Denver office and began working with Risser.

As her relationship with Elwood deteriorated, McDermott became confrontational and made threats against Ms. Risser. She called Risser at home, accusing her of being a "backstabber." Thereafter, McDermott came to Risser's cubicle and told her in "very profane language" to keep her mouth shut. On at least three occasions, McDermott stated that she would "get" Risser.

Several months later, Risser was hospitalized after a serious accident. McDermott called Risser after she went home and called her names, accused her of being in love with Elwood and said she was glad that Risser was hurt. Within the hour, McDermott called Risser back, threatening suicide. Risser told McDermott that she was calling the police and their supervisor because McDermott needed help.

Several months later, McDermott called Risser at home and apologized. She told Risser that she had taken overdoses of prescription medication and was in Wyoming. Risser kept her on the telephone and enlisted the aid of her supervisors and police to try to locate McDermott. A couple of days later, Risser learned that McDermott had been in Denver when she called Risser, but lied to Risser because she knew Risser would send out a "posse."

McDermott then began leaving voice mail messages threatening Risser and her stepdaughter. In the messages, which were left in a badly disguised voice, McDermott said: "You should never have messed with your friend. We are going to get you. We are going to go after that love child that you and your husband had with another woman. You messed with the wrong person." A second message said: "You are such an idiot. How dare you mess with our friend. You are now going to pay for it. You will know what it is like to be tormented by her friends. We know where that little love child between you and your husband and mistress goes to school. How do you like to have your life messed with? You made a big mistake you fat bitch."

Risser's testimony was confirmed by the testimony of McDermott's supervisor. The supervisor testified that after McDermott returned to the Pleasanton office, she began to notice that McDermott's behavior was erratic. McDermott called her supervisor and told her that she was contemplating suicide. On another occasion, McDermott told her supervisor that she wanted to die and it was Risser's fault. The supervisor also testified that McDermott began involving other employees in her personal situation. She particularly focused on Maria Torrano and Sara Gigliati.

Eventually, McDermott went out on disability leave for one month. When she returned, her supervisor, along with the company manager and the human resources manager, met with her. McDermott was advised that she was not to involve her coworkers in her personal affairs, not to make personal telephone calls or use the company email system for personal reasons. Although McDermott agreed, her supervisor discovered that two days later, McDermott had sent an email from work to coworkers regarding her suicide attempt. These emails were disturbing to coworkers.

Her supervisor testified that McDermott continued to make negative comments about Risser to Torrano and Gigliati. She repeatedly tried to get them to call Elwood. Finally, Chubb issued a first and final warning to McDermott, informing her that she would be discharged if she continued to contact Risser or involve other employees in her personal problems. In response, McDermott demanded to know who complained about her behavior. Her supervisor testified that she was concerned about the safety of Torrano and Gigliati, as she was likely to realize they were the ones who had complained about her.

McDermott's supervisor then learned of McDermott's threatening voicemail messages to Risser. She heard the tapes and recognized McDermott's voice. When the decision was made to fire McDermott, the supervisor requested that she be absent from the meeting because she was afraid of McDermott.

Torrano and Gigliati also testified at the hearing. Both testified as to McDermott's disturbing behavior. Both testified that they were afraid of McDermott.

The court issued separate injunctions concerning each of the four employees. The orders The orders prohibited McDermott from approaching any Chubb office or contacting any Chubb employee. McDermott appealed.

On appeal, McDermott argued that the lower court wrongly considered hearsay and unreliable evidence in determining that a threat may be carried out in the workplace. ⁽⁷⁾ The Court of Appeal disagreed, holding that the testimony of McDermott's four co-workers was largely "evidence of a person's conduct" and not hearsay. Furthermore, the court stated, many of the statements objected to were offered as background or to show a pattern of harassment and not for the truth of the matter asserted.

On the probability of future violence, the Court held that there was "substantial" evidence that McDermott was a threat to former co-workers, despite her discharge. Even after she was fired, she telephoned co-workers repeatedly. Chubb employees testified that they were still afraid of McDermott.

McDermott also challenged the orders on the ground that the court had failed to set the date of the hearing on defendant's petition within 15 days from the date of filing. The Court disagreed, finding that section 527.8(e) gives the court discretion to modify the time of the hearing. Furthermore, even if this provision is construed to require a hearing on the petition within 15 days, as McDermott contends, there is no indication that the Legislature intended noncompliance to divest the court of jurisdiction. Specifically, the Court stated that where, as here, the statute does not specify a consequence or penalty for noncompliance with a time limit, the provision is "directory" and not jurisdictional.

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C. Court Reversed Summary Judgment In Favor Of Defendant Where Trial Court's Ruling Was Based On Evidence Submitted In The Reply Papers

In San Diego Watercrafts, Inc. V. Wells Fargo Bank, N.A., 2002 DJDAR 6133 (Cal. Ct. App. 5/31/2002), the California Court of Appeal reversed a summary judgment in favor of the defendant. The Court held that the trial court erred in considering evidence submitted with the moving party's reply.

The case involved a real property dispute. The defendant Wells Fargo Bank leased property to a company, who then assigned the lease to the plaintiff. The plaintiff contended that defendant breached the lease, which contained a right of first refusal in favor of the tenant (and hence the plaintiff assignee), by selling the property to another entity without first consulting the plaintiff.

In its motion for summary judgment, the defendant contended that it had satisfied its duty to offer the property to the plaintiff when, before the assignment of the lease, the tenant declined to purchase the property. The defendant contended that the right of first refusal was a "one time right." The defendant supported the motion with the lease itself, as well as the declaration of the tenant's agent, who acknowledged that the property had been offered to the tenant before the assignment and that the tenant had declined the offer.

In opposition to the motion, the plaintiff submitted evidence that four months before giving notice to tenant, the defendant had begun discussing the sale of the property with brokers. The plaintiff also provided evidence that the notice to tenant stated a purchase price that exceeded that which the defendant had presented to other prospective buyers. The plaintiff contended that by failing to disclose these facts to the tenant, the defendant had procured the tenant's waiver of the right of first refusal by fraud.

In its reply to the opposition, the defendant submitted a supplemental declaration of the tenant's agent. This declaration contained new facts and was designed to rebut the evidence filed by the plaintiff in opposition to the motion. The plaintiff's objection to the supplemental declaration were overruled by the court.

The Court of Appeal held that the trial court erred when it considered the agent's supplemental declaration. Focusing on the language of C.C.P. Û 437c(b), the Court noted that although the statute provides for reply papers, it makes no allowance for submitting additional evidence or filing a supplemental separate statement. The Court reasoned that the absence of such language in the provision was entirely consistent with the requirement that supporting papers and a separate statement be served with the original motion.

Reiterating the "Golden Rule of Summary Adjudication," the Court stated: "if it is not set forth in the separate statement, it does not exist." The Court concluded that except in a very limited circumstance, the same procedures apply to both motions for summary judgment and motions for summary adjudication. (The "limited circumstance" was not identified. The court merely stated that it did not apply to this case.) Because the evidence in the supplemental declaration was not contained in the separate statement, it was not admissible.

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CIRCUIT COURT CASES

A. Ninth Circuit Finds No Pretext Where White Employee Is Selected For Lay Off Based On Poor Performance

In Aragon v. Republic Silver State Disposal, Inc., 2002 DJDAR 6223 (9^th Cir. 4/12/2002) (opinion filed 6/5/02) the Ninth Circuit found that a white employee had failed to present substantial and specific evidence of pretext, thereby warranting summary judgment in favor of the employer on a race discrimination claim.

Plaintiff Mark Aragon ("Aragon") had worked approximately nine shifts as a casual "pitcher" ⁽⁸⁾ for Republic Silver State Disposal, Inc. ("Republic") when he was laid off due to a seasonal downturn in trash volume. The criteria used to select Aragon as a candidate for layoff was his poor performance, a subject which had been addressed with him on prior occasions by his supervisor. Aragon's poor performance was stated as a basis for his layoff in the formal layoff letter he received.

Aragon, who is Caucasian, sued Republic contending that he was discharged because of his race. In support of this claim, he contended that of the 50 casual employees who reported to work on the night in question, only the ten "white" or "white-looking" employees were laid off. The district court granted summary judgment in favor of Republic, finding that Aragon had failed to make out a prima facie case of race discrimination.

Contrary to the findings of the trial court, the Ninth Circuit concluded that Aragon had, in fact, presented sufficient evidence to meet his minimal burden of establishing that he was qualified for the casual pitcher position. In particular, the Court noted that Aragon's self-assessment of the quality of his performance was relevant, as was the fact that (1) there had been no formal write-ups or disciplinary notices issued to Aragon; and (2) he was told that he could check back in December to see about being rehired.

The Court nevertheless affirmed summary judgment on the ground that Aragon was unable to demonstrate that Republic's legitimate, nondiscriminatory reason for firing him was a pretext for illegal discrimination.

To establish pretext, Aragon had asserted the following three arguments, none of which the Court found to be supported by specific and substantial evidence. The Court found that none of these contentions were supported by specific and substantial evidence.

First, Aragaon argued that the two reasons given for his layoff - seasonal downturn and poor performance - were inconsistent. The Court noted that while fundamentally different justifications for an employer's action could give rise to a genuine issue of fact with respect to pretext, this legal principle did not apply here because these two reasons were not inconsistent. The seasonal downturn explained why Republic had to reduce the number of casual employees it employed. Poor performance was simply the criteria used by Republic in selecting candidates for layoff.

Second, Aragon argued that the Court should infer pretext from the fact that the white and white-looking casuals laid off had more seniority. This time, the Court rejected Aragon's contention on the ground that is was factually incorrect. The most senior casual pitcher laid off that night was African American. Although Aragon argues that this employee "looked white," it was undisputed that the supervisor knew he was African-American. In contrast, a less senior white casual pitcher was not laid off. ⁽⁹⁾

Finally, Aragon contended that three of the four casuals that were laid off were white. Without disputing the accuracy of this fact, the Court nevertheless rejected it as insufficient evidence of discrimination to avoid summary judgment. Specifically, the Court found the sample size to be too small to enable it to infer discrimination based on this evidence. The Court stated: "Statistical evidence derived from an extremely small universe ... has little predictive value and must be disregarded." Furthermore, the statistical evidence "must show a stark pattern of discrimination unexplainable on grounds other than race." The Court concluded that Aragon's evidence presented no stark pattern, nor did it account for possible nondiscriminatory variables such as job performance.

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B. Third Circuit Holds That Pneumonia is Temporary and Nonchronic and, Therefore Is Not A "Disability" Under The ADA. Nor Was The Employee "Regarded As" Disabled

In Rinehimer v. Cemcolift, Inc., 2002 U.S.App LEXIS (3^rd Cir. 5/30/02) (opinion filed on 5/30/02), the Third Circuit held that pneumonia is not a disability under the Americans with Disabilities Act ("ADA") because it is temporary and nonchronic. The Court further held that the plaintiff could not rely on his status as an asthmatic because there was no evidence that his employer knew he had asthma.

Plaintiff Gary Rinehimer worked for Cemcolift, a manufacturer of residential elevators as a plant foreman. The area of the plant to which he was assigned exposed him to paint fumes and sawdust. In late 1995, he developed pneumonia and spent 22 days in the hospital and nine days in a rehabilitation center.

When Rinehimer advised his employer that he wanted to return to work, he presented a doctor's statement that he could work part-time for two weeks and full-time after that, as long as he was not exposed to dust and fumes. His supervisor told him there were no part-time jobs available.

Rinehimer returned to work in a filing job and later in a job assembling machinery. Although neither job was equivalent to his previous job as foreman, he received the same salary. He asked to return to his foreman's position and took a pulmonary test to determine whether he could wear a respirator.

Because Rinehimer could not wear a respirator, a vice president of the company told him that he could not return to a foreman's job unless he provided a doctor's permission to work around dust and fumes or signed a statement that he would take "responsibility" for his presence in that work environment.

Rinehimer did neither and the company fired him. He sued in 1998, claiming violations of the ADA, the Family Medical Leave Act, and Pennsylvania law. The trial court granted summary judgment to the company on the ADA and state law claims. A jury found for the company on the FMLA claim.

On appeal, Rinehimer argued that his ability to breathe, a major life activity was "significantly impaired." The Court assumed that because his pneumonia was temporary and hence not a disability under the ADA, Rinehimer's breathing problem must be related to his asthma, a condition upon which Rinehimer could not base his disability claim, given the absence of evidence to show that the company knew he had asthma.

Rinehimer attempted to persuade the Court otherwise. He argued that the company knew he had "some sort of respiratory disorder" because a letter form his doctor stated that he must avoid dust and fumes. Because sensitivity to dust and fumes is not, according to the Court, a substantial impairment of a major life activity, the physician's letter was not sufficient to put the company on notice that Rinehimer had asthma.

Nor did Rinehimer demonstrate that the company "regarded him as" disabled, despite remarks by managers that he was "sick, wheezing, and had difficulty breathing." The Court stated: "The awareness that an employee is sick combined with some change in his work assignments is not enough to satisfy the "regarded as" prong of the ADA. Citing Taylor v. Pathmark Stores, Inc., 177 F.3d 180 (3d Cir. 1999), the Court noted that a person is "regarded as" having a disability if he (1) has a physical or mental impairment that does not substantially limit major life activities but that is treated as constituting such a limitation;

(2) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such an impairment; or (3) has no such impairment but is treated as having a substantially limiting impairment. According to the Court, Rinehimer did not satisfy this test.

Finally, the Court affirmed the district court's judgment upholding the jury verdict for the company on the plaintiff's FMLA claim. The Court found that the plaintiff had failed to show that he could perform the essential functions of a foreman's job and, thus, the company's refusal to return him to that position was not actionable under the FMLA, which, according to the Court, does not require a reasonable accommodation to facilitate an employee's return to the same or an equivalent position.

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1. The Court's opinion was authored by Justice Clarence Thomas. Justice Thomas was joined in Part II of the decision by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen Breyer.

2. 42 U.S.C. Û 2000e-5(e)(1) provides that a plaintiff "shall" file an employment discrimination charge with the EEOC either 180 or 300 days after an "alleged employment practice occurred."

3. The Court expressly provided that subsequent events may still be part of the hostile environment claim and that a charge may be filed at a later date and still encompass the whole. It also held that even if no acts occurred for months, the claim still encompasses all acts, so long as they are part of the same hostile environment claim.

4. The regulation provides, in pertinent part: "The term 'qualification standard' may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace."

5. The Court distinguished Supreme Court rulings striking down employment policies excluding women from jobs seen as too risky, reasoning that those cases "were concerned with paternalistic judgments based on the broad category of gender." Here, however, the "EEOC has required that judgments based on the direct threat provision be made on the basis of individualized risk assessments."

6. Section 527.8 permits an employer "whose employee has suffered unlawful violence or a credible threat of violence from any individual that can reasonably be construed to be carried out ... at the workplace" to seek a temporary restraining order and an injunction on behalf of the threatened employee. A "credible threat of violence" is defined as "a knowing statement or course of conduct that would place a reasonable person in fear of his or her safety, or the safety of his or her immediate family." In order to obtain an injunction under this provision, the employer must provide clear and convincing evidence that the defendant engaged in unlawful violence or made a credible threat of violence.

7. California's Workplace Violence Safety Act allows an employer to seek a temporary restraining order on behalf of a threatened employee if there is evidence that the threat may be carried out in the workplace.

8. The pitcher is the person who lifts and carries trash receptacles to the waiting garbage truck. As a casual employee, Aragon was required to report to work at 3:00 a.m., although pursuant to the collective bargaining agreement, casuals are not guaranteed work every night. Instead, they are assigned on an as-needed basis. The agreement also provides that casual employees have no right to continued employment. The sole purpose of the casual position is to provide a sufficient labor force in case there are not enough regular employees to cover a workload on a given day. Republic maintains a pool of about 50 casual employees.

9. Also, the Court disputed Aragon's second argument based on its interpretation of the collective bargaining agreement. Under the terms of the collective bargaining agreement, a casual employee did not accrue seniority rights until they reached 90 days of employment. At the time of his layoff, Aragon had worked only 39 days and, thus, had no seniority whatsoever.

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