2006-4

U.S. Supreme Court Rules: (1) Use of the Word "Boy" Might Be Evidence of Racial Bias under Some Circumstances, Even If No Racial Modifier Is Used; and (2) Disparity in Candidates' Qualifications Need Not Necessarily "Jump off the Page and Slap You in the Face" to Be Evidence of Discrimination.

In Ash v. Tyson Foods, Inc., 2006 DJDAR 2024 (U.S. Feb. 21, 2006) (per curiam), the United States Supreme Court summarily vacated an Eleventh Circuit U.S. Court of Appeals decision affirming a judgment for an employer in a lawsuit alleging race discrimination under 42 U.S.C. ? 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. ? 2000e.

Two African-American employees, Anthony Ash and John Hithon, were superintendents at a Tyson Foods poultry plant. They claimed Tyson committed race discrimination by denying their requests for promotion to two open shift manager positions and selecting two Caucasian men instead. A federal jury found for the plaintiffs and awarded compensatory and punitive damages. However, Tyson moved for judgment as a matter of law on both plaintiffs' claims under Rule 50(b) of the Federal Rules of Civil Procedure. The District Court granted the motion as to both plaintiffs. The Eleventh Circuit reversed the judgment as to Hithon, but affirmed as to Ash because his evidence was insufficient as a matter of law to establish racial pretext.

Ash petitioned to the U.S. Supreme Court, which granted the petition and summarily vacated the Eleventh Circuit's decision without holding oral argument. The Supreme Court found that although the Court of Appeals might have reached the correct result, its reasoning was wrong in two respects, and therefore it would have to reconsider its decision.

First, the Eleventh Circuit discounted evidence that one of the Tyson plant managers, who made the promotion decision, referred on several occasions to Ash and Hithon as "boy." The Eleventh Circuit held that the comment must accompany a racial modifier such as "white" or "black," before it may found to evince discriminatory intent. The Supreme Court disagreed and held that, in addition to racial modifiers, various other factors must be considered when determining whether the term "boy" reflects racial animus ? including context, inflection, tone of voice, local custom, and historical usage.

Second, the Eleventh Circuit rejected plaintiffs' argument that they were more qualified than the Caucasian applicants. According to the Eleventh Circuit, "Pretext can be established through comparing qualifications only when the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face." (Emphasis added.) The Supreme Court found that standard to be too imprecise to be useful. Although it declined to specify the appropriate standard, the Supreme Court quoted approvingly to the following language from an earlier Eleventh Circuit case: "... [D]isparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgement, could have chosen the candidate selected over the plaintiff for the job in question." Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004). The Supreme Court therefore directed the Eleventh Circuit to reconsider its decision in light of this analysis.

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U.S. Supreme Court Holds That the 15-Employee Minimum under Title VII Is an Element of the Plaintiff's Claim, but Does Not Impact a Federal Court's Jurisdiction to Decide the Case.

In Arbaugh v. Y&H Corporation, 2006 DAR E-1 (U.S. Feb. 22, 2006) (1), the United States Supreme Court ruled unanimously that the 15-employee minimum for determining whether an employer is covered by Title VII is an element of a plaintiff's claim, but not a jurisdictional issue that determines whether a federal court may even decide the case.

Plaintiff Jenifer Arbaugh worked as a bartender and waitress for Y&H Corporation, doing business as the Moonlight Caf?. She sued Y&H under Title VII and Louisiana law, alleging that she was constructively discharged as a result of a hostile work environment through sexual harassment and assault. At trial, a jury returned a verdict in Arbaugh's favor. After judgment was entered, Y&H argued for the first time that the District Court lacked subject-matter jurisdiction to even decide the case because Y&H had fewer than 15 employees, and that the judgment in Arbaugh's favor was therefore null and void. The District Court reluctantly granted Y&H's motion to dismiss. Although it decried the unfairness and wastefulness of such a result, the District Court concluded the 15-employee requirement was jurisdictional in nature, and the issue of subject-matter jurisdiction may never be waived no matter how long the defendant waits to raise it.

The Fifth Circuit affirmed the District Court's judgment of dismissal in favor of Y&H, but the Supreme Court reversed and held the 15-employee minimum is not jurisdictional. The Supreme Court reasoned that this requirement is not included in the portion of Title VII which gives federal courts jurisdiction over such claims, but instead is contained in a separate portion of the statute. Although Congress could make the 15-employee requirement jurisdictional in nature, the Court found it did not do so here. Thus, while a plaintiff must prove the employer had 15 or more employees as an element of her case under Title VII, the employer may waive this issue if it fails to raise it in a timely manner. The Supreme Court therefore reversed the Fifth Circuit's decision and remanded the case for further consideration.

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California Court of Appeal Rules: (1) Municipalities May Be Sued Directly for Damages Resulting from Deprivation of a Constitutional Right, If the Plaintiff Can Identify the Municipal Policy That Caused the Injury; but (2) Trial Court Must Reconsider Attorney Fee Award of $1.1 Million On Damage Award Of Only $30,300.

In Harman v. City & County of San Francisco, 2006 DJDAR 2165 (Cal. App. Feb. 22, 2006) (2), plaintiff Allen Harman, a white male airfield safety officer at the San Francisco International Airport, sued the City and other employer-defendants for race discrimination in violation of his constitutional rights pursuant to 42 U.S.C. section 1983. Harman specifically challenged three personnel decisions: (1) the termination of a pool of eligible candidates for a provisional appointment; (2) the appointment of an acting supervisor; and (3) the permanent appointment of airport operating supervisors through the normal civil service procedure. After lengthy state and federal proceedings, a Superior Court jury found the defendants liable for discrimination and awarded $30,300 in damages to Harman. Pursuant to 42 U.S.C. section 1988, the trial court subsequently awarded Harman nearly $1.1 million in attorneys' fees, which reflected the entire amount Harman requested.

On appeal, the City did not dispute the sufficiency of the evidence of discriminatory motive. Instead, it argued that Harman failed to show that the personnel decisions arose from the execution of an official City policy or custom, as required under 42 U.S.C. section 1983 and Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). The Monell Court stated: "Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor ...." (Italics in original.)

In Harman, the First District Court of Appeal, Division One, held that the evidence before the trial court showed that the Equal Employment Opportunity manager of the City's central human resources department acted as the final arbiter of municipal policy. The appellate court found sufficient evidence that Harman suffered harm as a result of that policy, albeit only with respect to the termination of the provisional pool. The court also found sufficient evidence that the policy was racially discriminatory. Thus, the court affirmed the $30,300 damage award.

However, the Court of Appeal vacated the $1.1 million award of attorneys' fees, and concluded that the trial court did not properly consider the standards governing the calculation of a reasonable fee under 42 U.S.C. section 1988. The Court of Appeal directed the trial court to: (1) recalculate the "lodestar" fee amount and exclude any hours "expended on claims that are unrelated to the claim of damages on which Harman succeeded at trial"; and (2) "reduce the award to reflect the limited nature of Harman's relief in comparison with the scope of the litigation as a whole." The trial court also was instructed to "articulate a clear explanation of its reasoning in light of the authority surveyed in this opinion so as to facilitate meaningful appellate review." The appellate court expressed no opinion as to the amount of fees the trial court should award.

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California Employers May Be Sued for Violations of Civil Rights under Civil Code Sections 51.7 and 52.1, Which Technically Are Not Part of the Unruh Act.

In Stamps v. Superior Court, 2006 DJDAR 2316 (Cal. App. Feb. 27, 2006) (3), plaintiff Robert Stamps, an African-American tunnel miner, alleged he was subjected during his employment to discrimination, retaliation, violence, and intimidation by threat of violence. The causes of action in his lawsuit included wrongful termination and retaliation in violation of public policy, and violation of the statutory prohibitions against discriminatory violence and intimidation (Civil Code section 51.7) and denial of civil rights by means of threats and intimidation (section 52.1).

The defendants (Stamps's former employer and supervisor) filed a demurrer and a motion to strike, arguing that sections 51.7 and 52.1 are part of the Unruh Civil Rights Act (Civil Code section 51) and, as such, do not apply to employment cases. See Rojo v. Kliger, 52 Cal. 3d 65 (1990). The trial court sustained the demurrer and granted the motion to strike, but the Second District Court of Appeal, Division Eight, granted Stamps's petition for a writ of mandate to overturn the trial court's ruling.

After reviewing the legislative history and prior case law, the Court of Appeal concluded that sections 51.7 and 52.1 are not part of the Unruh Act, and even if they were, nothing in Rojo suggests that claims under sections 51.7 or 52.1 may not be brought in employment cases. These statutes were designed to deter hate crimes within society in general, and the employment setting is no exception. Thus, a plaintiff may base a claim of employment discrimination on sections 51.7 and 52.1, even though such a claim may not be based on the Unruh Act (section 51).

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Employees' Optional Travel from Parking Lot to Job Site Is Not Compensable Time.

In Overton v. Walt Disney Co., 2006 DJDAR 1402 (Cal. App. Feb. 1, 2006) (4), the Second District Court of Appeal, Division Three, held that an employer who does not require employees to travel to a work site on employer-provided buses is not obligated to pay employees' travel time spent on the buses.

Plaintiff Bobby Overton was a security guard at Disneyland. In 1998, employee parking was relocated because of the addition of a second theme park. Overton was assigned to a lot that was not within walking distance of the employee entrance. Disney provided a free shuttle for employees parking in this lot. Although 90% of Disney employees drove, the remaining 10% used alternative transportation such as bicycles and public buses. Financial incentives also were provided to these employees for each day of a "clean air commute." Overton filed a class action seeking compensation for the time spent on the shuttle buses from the parking lot. The trial court granted summary judgment for Disney, and the Court of Appeal affirmed.

The appellate court found that this case falls outside the mandate of the California Supreme Court's opinion in Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2002). Morillion held that an employer who requires employees to meet for work at a specified parking lot or assembly area, and to be transported in buses provided by the employer and taken to the fields where they worked, was required to pay employees wages for the time spent on the employer mandated transportation, during which the employee is "subject to the control of an employer."

The court in Overton found the evidence was undisputed that Disneyland employees were not required to use employer-provided transportation, and in fact were encouraged to use alternative, "clean air" transportation such as public transportation, van pools, bicycles, or walking. Unlike the Morillion case, Disney did not require its employees to meet at a designated place to take the employer's buses to work, nor did it prohibit them from taking their own transportation or control the employees' means of commuting to work. The court noted that it did not wish to discourage employers who provide optional free transportation to employees, as long as the employers do not require the employees to use that transportation.

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1. Opinion by Ginsburg, J., for a unanimous Court. Alito, J., did not participate.

2. Opinion by Swager, J., joined by Marchiano, P.J. and Margulies, J.

3. Opinion by Rubin, J., joined by Cooper, P.J. and Flier, J.

4. Opinion by Croskey, J., joined by Klein, P.J. and Kitching, J.