Judge Barrett on Employment Law II

Before reading this summary, please read the overview for context.

Graham v. Arctic Zone Iceplex, LLC (2019)

James Graham, Jr. was hired as head mechanic and maintenance supervisor at the ice rink Arctic Zone. [2] He was never an ideal employee: customers complained about his attitude; the staff didn’t like it either; and he rarely completed tasks on time. Yet the real problems began when he was injured a few months later. After spending some time on worker’s compensation, Mr. Graham resumed working with some medical restrictions. Chief among these was the requirement that he work sitting down. Graham was therefore assigned to sharpen ice skates. Graham didn’t think he could do that sitting down but he never told his boss, although he did sometimes sit down to rest (when he would be told to get back to work). [2] Graham also grumbled about being asked to work night shifts and, finally, caused a Zamboni accident that cost Arctic Zone $150 and required it to shut the ring to fix. [2-3, 6] After that, Arctic Zone fired Graham, for all of the foregoing reasons. [3]

Graham sued Arctic Zone, alleging that it had violated the Americans with Disabilities Act both by failing to accommodate his disability and then by firing him because of it. Judge William Lawrence granted summary judgment for Arctic Zone. [3] Judge Barrett, writing for the Court of Appeals, agreed that Arctic Zone could not have failed to accommodate Graham’s disability because he never told it that he needed further accommodation. [4]

Graham also argued that Arctic Zone’s alleged grounds for firing him were pretextual. First, he pointed to an apparent contradiction between his supervisor’s deposition testimony and Graham’s notice of termination but Judge Barrett found that they were using different meanings of the word “position”. [4-6] Graham also argued that he had been treated worse than an employee who had caused far more expensive damage but Judge Barrett held that the other employee had a much better record before the accident and had also not posed a risk to customers. [6-7] As such, the two could not really be compared. Therefore, Judge Barrett found no evidence of pretext and affirmed summary judgment in favour of Arctic Zone.

Sansone v. Brennan (2019)

Ten years after Anthony Sansone began working for the U.S. Postal Service, he was diagnosed with multiple sclerosis. After another eight years, he developed the need to use a wheel-chair and, by extension, to use a ramp. For over a decade, the Postal Service provided him with a reserved parking space from which he could use the ramp. In 2011, however, Mr. Sansone was asked to park somewhere else (allegedly for safety reasons). Although he was offered other parking spots, including the plant manager’s own reserved space, the only ones that had space for his ramp were usually taken. [2] Over the ensuing weeks, the Postal Service discussed possible accommodations with Sansone but, eventually, it tried to enforce its request to park elsewhere. Sansone found the experience extremely stressful, was advised by a doctor to remain at home, and eventually became unable to return to work. [2-4] He requested and received disability retirement. [4]

Sansone then sued the Postal Service, alleging that it had violated the Rehabilitation Act by constructively discharging him and failing to accommodate his disability. The district court granted summary judgment to the Postal Service on the first claim but the latter went to the jury. During trial, the district court’s instructions to the jury included “Neither party can win this case solely because the other did not cooperate in that process in the way that the party believed appropriate.” [6] The trial court also admonished the Postal Service for providing inadmissible factual and legal argument to an expert witness and instructed the jury to bear this impropriety in mind when evaluating that witness’ testimony. [7-10] The jury awarded Sansone $300,000 in compensatory damages and the district court then awarded him $828,774 in lost pay from taking early retirement. [4] The Postal Service appealed.

The Postal Service argued that, because Sansone had abandoned the accommodation negotiations, it was erroneous for the trial court to instruct the jury that a party could not win because a party did not cooperate in the process to find an accommodation. Judge Barrett, writing for the Court of Appeals, held that this mischaracterised the jury instruction. In context, the instruction meant only that it had to decide whether Sansone had cooperated, not assume that he had failed to do so because the Postal Service thought he should have done more. That instruction was correct. [4-7]

The Postal Service also argued that the trial court had erred by effectively telling the jury to disregard the testimony of its expert witness. Judge Barrett interpreted Federal Rule of Evidence 703 as placing no limit on what information expert witnesses could receive but only on the information on which they could base their opinions. [10] Because the expert stated that she had not based her opinion on the factual and legal arguments but on interviews and medical records, which were presumably the kind of facts and data on which experts in her field relied, she had not violated the Rule. [10-11] If the expert was biased in favour of the Postal Service, Sansone’s lawyer could expose that through cross-examination. [11] Therefore, Judge Barrett held that this instruction was erroneous and had (at best) biased the jury. Because the witness’ testimony was only relevant to compensatory damages, however, Judge Barrett remanded for a new trial only on that issue. [11-12]

Finally, the Postal Service argued that the trial court had been wrong to award payment for early retirement. Judge Barrett, who taught civil procedure for many years at Notre Dame Law School [2020 Questionnaire at 61], stated that the Postal Service had forfeited the decision (failed to raise it by accident) rather than waiving it (intentionally failing to raise it) as Sansone argued. [13] Nevertheless, it had forfeited the issue, and therefore she did not discuss the issue further.

Therefore, a new trial was ordered solely on what damages were appropriate.

Smith v. Illinois Department of Transportation (2019)

Terry Smith began working for the Illinois Department of Transportation in late 2013 and was fired on January 30, 2014. [1,5] There is no way to reconcile Mr. Smith’s account of this period with the DOT’s. According to the DOT, Smith was hopelessly incompetent. One of his supervisors, Lloyd Colbert, stated that if Smith continued in his job then “someone else [would] pay the ultimate price.” [2-3, 5] According to Smith, he was constantly mistreated because he was Black and then fired in retaliation for complaining about this. [3-5] Many of his supervisors constantly swore at him. [10] Mr. Colbert referred to Smith as a “stupid a— n—r,” although Colbert was also Black. [5] Smith sued the DOT, alleging that it had created a hostile work environment and fired him in retaliation for his complaint, but Judge Edmond Chang held that Smith had introduced insufficient evidence of both claims and granted summary judgment for the DOT. [5]

Smith argued that the district court should not have excluded the evidence of his expert witness. The witness had read Smith’s evaluations and various DOT policy documents but had not spoken with, or read the depositions of, Smith or any DOT staff. [6] She had also observed that Smith’s reviews had deteriorated after he complained about racial harassment but had not provided any evidence that Smith’s supervisors knew of these complaints. [7] The district court excluded her testimony on the grounds that it was based on insufficient facts and Judge Barrett, writing for the Court of Appeals, agreed. [6-7]

Smith also argued that the district court had been wrong to exclude the affidavit of one of Smith’s former supervisors, Marvin Harrison, who swore that he had seen Smith “being discriminated against on many different occasions.” The district court had found this too imprecise: who had done what, when, and why? Without answering those questions, the affidavit was of no help. The only specific allegation was that Colbert “frequently” referred to Smith as “n—r” but Mr. Harrison did not explain how he knew this, which rendered the statement inadmissible. Judge Barrett agreed that the district court had been within its discretion to disregard this affidavit. [8]

Smith then argued that a reasonable jury could find evidence that he had been fired in retaliation for complaining about racial discrimination. Specifically, he argued that the district court had ignored positive feedback from some of his supervisors. [9] Given the overwhelming documentary evidence of inadequate and dangerous performance, however, Judge Barrett held (citing Anderson v. Baxter Healthcare Corp.) that some evidence of adequate performance would not permit a jury to find that Smith was fired in retaliation rather than for his poor performance. [9-10]

Finally, Judge Barrett rejected his arguments that the DOT had created a hostile work environment. While his supervisors were undeniably crude, even abusive, Smith did not indicate that their hostility towards him was because of his race. [10-11] The sole exception to that was Colbert’s reference to him as a “n—r” but, thanks to the exclusion of Harrison’s affidavit, the only evidence of such language was at the very end of Smith’s employment. Smith was required to demonstrate not only racism but that this racism subjectively and objectively created a hostile work environment. In other words, Smith had to show that Colbert’s remark hypothetically would ruin the workplace for a reasonable person and actually did ruin the workplace for Smith himself. Judge Barrett held that Smith failed the latter test, because Smith already hated his workplace for reasons that had not been proved to be connected to his race, so this one comment did not make things significantly worse. [12-13]

Smith v. Rosebud Farm, Inc. (2018)

Rosebud Farm is a still grocery store on the South side of Chicago. Robert Smith worked there as a butcher. [2] Rosebud’s employees would make sexual gestures and fondle other male employees, whether or not those employees consented, as Mr. Smith did not. [3] They did not treat female employees the same way. [8-9] They would also mock Smith (who was Black) for his race. [3] After Smith filed a complaint with the Equal Employment Opportunities Committee, they began to threaten Smith with sharp knives and even smashed his car. [3] Smith quit his job because of “intolerable” working conditions. [3] Smith then sued Rosebud and individual employees on several grounds. The jury found for Smith on all counts. Judge Robert Dow, Jr. ordered Rosebud to pay Smith $462,500 (a significant reduction of the amount awarded by the jury) as well as back pay and pre-judgment interest. [4 and note 3 on the same page]

Rosebud’s main argument on appeal was that Smith introduced no evidence of discrimination on the basis of sex. The employees’ behaviour had been inappropriate, perhaps even actionable on other grounds, but that did not render it sex discrimination. Judge Barrett, writing for the Court of Appeals, found otherwise. Smith had introduced evidence that men were harassed but that, under equivalent circumstances, women were not. This was sufficient for a jury to find that Rosebud had discriminated on the basis of Smith’s sex. [5-9]

Rosebud made two more arguments. First, Rosebud argued that its employees could not have retaliated against Smith for complaining to the EEOC because those employees did not know about his complaint to the EEOC. Judge Barrett held that Smith had forfeited this argument by failing to raise it before the district court. [9-10] Rosebud then argued that Smith’s closing remarks (which compared Rosebud to terrorists) had been unfairly prejudicial, justifying a new trial. Judge Barrett held that Rosebud had forfeited this argument, because its objections to the closing statement had not included that it was prejudicial, but that the remarks would not have warranted a new trial anyway (and had probably done more harm to Smith than to Rosebud). [10-11]

Therefore, Smith’s victory stood.