Articles Posted in Discrimination

A former employee of the Arlington County Sheriff’s Office failed to produce sufficient evidence of race discrimination to survive summary judgment. Such was the determination of Judge O’Grady of the Eastern District of Virginia, who entered summary judgment in favor of Arlington Sheriff Beth Arthur.

The case had been brought by former Inmate Services Counsel Robert Currie. Currie, an African-American male, alleged that he was racially discriminated against in 2009, when: (1) a watermelon was left on his desk by an African-American co-worker; (2) a Caucasian deputy made the statement “[t]here goes the neighborhood” on several occasions when Currie approached him; and (3) a Latino supply assistant referred to Currie as “boy” when addressing him.

Currie filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), claiming that he was discriminated against and was placed on probation in 2009 in retaliation for the fact that his lawyer had written to the Sherriff’s Office after the watermelon incident. The EEOC issued a Notice of Right to Sue in 2011. Two months later, Currie was watermelon.jpgterminated by Sheriff Arthur, allegedly as a result of an investigation that found that Currie violated policy, made false statements, treated an inmate unprofessionally, and retaliated against inmates.

A Lincoln-Mercury dealer in the Virginia Beach area has settled a lawsuit filed earlier this year by a former employee who claimed that she was subjected to a campaign of sexual harassment by the dealership’s general manager.

On March 4, 2011, Carla Mercado, who worked as a car saleswoman until she was fired in March 2009, sued Lynnhaven Lincoln-Mercury Inc. for sexual harassment, discrimination and retaliation, asserting that Juan Lewis, the general manager, repeatedly groped her and made unwanted sexual advances and suggestions. On October 21, 2011, U.S. District Judge Raymond A. Jackson denied Lynnhaven’s motion for summary judgment and its partial motion to dismiss the complaint. Faced with having a jury decide the merits of Ms. Mercado’s claims, the parties mutually decided to settle the case on the courthouse steps, the day the trial was scheduled to begin.

According to the complaint, Lewis repeatedly made remarks of a sexual nature to Mercado on the job and asked her to have oral sex with him. On one occasion, according to the complaint, he told her that the only way she would get a promotion is if she performed that sexual act on him. At one time, the complaint reads, he forcibly kissed her. These comments and actions,Dance or Fight.jpg the complaint says, “were an integral part of Juan Lewis’s custom, business practice, and course of dealing with certain women at Lincoln-Mercury, while fulfilling his role as General Manager at the dealership.”

Virginia is a “deferral state” for Title VII purposes, meaning that it has a state law prohibiting discriminatory employment practices and has a state or local agency (e.g., the Virginia Council on Human Rights) authorized to grant relief from such practices. To allege discriminatory employment practices in deferral states like Virginia, prior to filing any lawsuit, an aggrieved employee must exhaust administrative remedies by initiating an EEOC charge within 300 days. Otherwise, the claim will be forever barred. (See 42 U.S.C. § 2000e-5(e)(1)). In a case decided recently by Judge Spencer of the Eastern District of Virginia, a plaintiff found this out the hard way.

In McKelvy v. Capital One Services, LLC, the plaintiff was an African-American Director of IT services, over 40 years of age. After obtaining a “right-to-sue” letter from the EEOC, he sued Capital One, claiming that the removal of his supervisory responsibilities and the failure to promote him was based on his race or his age, and thus violated Title VII’s prohibitions against unlawful discrimination in employment. Finding that the alleged discrimination took place more than 300 days before the plaintiff filed his EEOC charge, the court granted summary judgment in Capital One’s favor and dismissed the plaintiff’s claims with prejudice.

The court also observed that, even if the plaintiff had not failed to exhaust administrative remedies, he could not prevail on his claim because he failed to present supportive facts (beyond his personal belief), to rebut Capital One’s assertion that his direct reports were taken away because other associates complained about his leadership time.jpgstyle and because of some poor performance appraisals. To survive a motion for summary judgment, a plaintiff must come forward with supportive evidence.

To survive the early stages of litigation in federal court, you need to ensure your complaint not only alleges facts that, if proven true, would support a legal cause of action, but that present a plausible claim for relief. While you are far more likely to win your case at trial if you are represented by an attorney, one of the few situations in which your task may be easier without a lawyer is surviving an initial motion to dismiss. This is because the United States Supreme Court has held expressly that a “pro se” plaintiff (i.e., a litigant not represented by a lawyer) must be held to less stringent standards than those who have legal representation and are more familiar with the rules of formal pleadings.

Michael Bogan is representing himself in a Title VII employment-discrimination action against The Roomstore in Richmond, Virginia. Judge Henry E. Hudson recently denied The Roomstore’s motion to dismiss for failure to state a claim, finding that Mr. Bogan alleged “scant but marginally sufficient” factual allegations to support a claim for discriminatory discipline, an employment practice prohibited by federal employment laws. Had an attorney drafted the complaint, the result might have been different.

Mr. Bogan, an African-American, alleges that his Caucasian supervisor at The Roomstore demanded that he undergo a drug test even though a similarly situated white employee was not required to submit to the test. He claimed the white employee Papers.jpgwas involved in illegal activity and had missed several days of work. The complaint alleges that The Roomstore terminated his employment for refusing to submit to the test.

Virginia employment lawyers who represent plaintiffs are often looking for creative legal theories to help their clients receive justice. Employees seeking redress for perceived wrongful termination face a steep hurdle in the employment-at-will doctrine, under which a private employer, subject to certain exceptions, is free to discharge its employees at any time, for any reason or no reason at all, without incurring civil liability. While it is usually the corporate employer who gets cast in the role of defendant, plaintiffs’ lawyers have occasionally tried to impose liability on the individual manager who terminated or discriminated against the employee, usually without much success. A recent decision from the Eastern District of Virginia’s Richmond Division, however, opens the door to possible claims of “tortious interference” against the individual bad actor.

Williams v. Autozone Stores, Inc. is a sexual harassment case brought under Title VII of the Civil Rights Act of 1964, which prohibits harassment of employees where the conduct is sufficiently severe or pervasive to create a “hostile work environment,” or where the harassing conduct results in a tangible change in an employee’s employment status or benefits (such as getting fired). Williams, a former employee of Autozone, claimed that her manager, Willie Pugh, touched her inappropriately and made sexually-charged comments toward her. After asking Pugh to stop, Williams alleges that he wrote her up for nonexistent problems and that she was consequently transferred to a different store and eventually fired. Williams sued Autozone for alleged discrimination, but also sued Pugh himself on the theory that he tortiously interfered with her employment contract with Autozone. Autozone moved to dismiss the claim, arguing that Pugh was an agent of the company and that a company cannot interfere with its own contracts, but Judge Spencer allowed the claim to go forward.

Pugh pointed out that claims for tortious interference with contract require the existence of three separate parties: the two parties to the contract, and a third party who induces one of the two contracting parties to breach the agreement. As an employee of the RippedK.jpgcompany, he argued, he and Autozone were the same entity, negating the possibility of a third party. Pugh also pointed out that Williams acknowledged in her complaint that Pugh was an employee acting within the scope of his employment with Autozone.

The Equal Employment Opportunity Commission (EEOC) claims a Kmart Super Center in Norfolk, Virginia, fired a store greeter because he used a cane, in violation of the Americans with Disabilities Act (ADA). In a lawsuit filed in the United States District Court for the Eastern District of Virginia, the EEOC alleges that the employee used a cane to walk and stand due to his spinal stenosis, a physical impairment of his back. His back problems did not prevent him from performing his duties as a greeter. Nevertheless, the suit claims, when he was observed using the cane, Kmart terminated his employment.

Prior to terminating the employee, Kmart allegedly refused to allow him to use the cane, even though his condition made it difficult to stand or walk without one, and his job required both. The EEOC filed the lawsuit only after Kmart refused to settle.

The EEOC is seeking most of the remedies permitted under the ADA, including kmart-logo.jpgreinstatement of the employee’s job (or placement into a substantially equivalent position), back pay, compensatory damages, and punitive damages for intentional discrimination. The EEOC is also seeking an injunction (as it usually does in the ADA cases it brings) prohibiting discriminatory practices and compelling Kmart to adopt and execute a variety of policies, practices, and training programs to clarify to their employees and the general public that Kmart will takes steps to ensure it does not discriminate against persons with disabilities.

Both the Americans with Disabilities Act (ADA) and the Virginians with Disabilities Act (VDA) prohibit stage agencies and public entities from discriminating against people with disabilities, or denying to them the benefits of their services, programs, or activities. On June 4, 2009, Virginia’s highest court held that the Virginia Lottery, a state agency established to generate revenue to be used for public purposes, must comply with these laws and ensure that disabled persons are not excluded from participation in the lottery.

At issue was whether the lottery operation constitutes a “program, service, or activity” within the meaning of the ADA and VDA.  A group of disabled plaintiffs, all of whom use wheelchairs, sued the Lottery in Richmond, claiming that several retail outlets lacked accessible parking spaces, ramps, and paths of travel for disabled persons.  The Lottery argued that it was exempt from the ADA and VDA because it did not offer a program, service, or activity within the meaning of those statutes.  While the Circuit Court agreed with that argument, the Supreme Court reversed, finding that the Virginia Lottery does operate a “program, service, or activity” and therefore must conduct its operations in compliance with the ADA and the VDA.


The tricky part is determining how, exactly, accessibility is to be achieved. The only party responsible for complying with the ADA with respect to a particular challenged government program is the party with control over that program. (See Bacon v. City of Richmond, 475 F.3d 633 (4th Cir. 2007)).

In a lawsuit brought last year by the Equal Employment Opportunity Commission against Compare Foods in North Carolina, the EEOC claimed the supermarket fired a white, non-Hispanic meat cutter due to its preference for employing Latino workers.  Compare Foods has now agreed to settle the action, which alleges national-origin and race discrimination, for $30,000 as well as by agreeing to take certain preventative measures such as distributing a written anti-discrimination policy, providing its employees with Title VII anti-discrimination training, and informing its existing employees of the lawsuit and settlement.

According to the allegations of the Complaint, Compare Foods fired Robert Bruce not because of his job performance, but because of his race (white) and national origin (non-Hispanic), and replaced him with a Hispanic worker.

Title VII of the Civil Rights Act of 1964 prohibits harassment of employees on the basis of race or national origin where the conduct is sufficiently severe or pervasive to create a “hostile work environment,” or where the harassing conduct results in a tangible change in an employee’s employment status or benefits (such as getting fired).  The law protects not just minorities but members of all races.

Like it or not, if you are 40 years old or older, your employer or coworkers may consider you downright geriatric and mistakenly assume that you are no longer able to perform the requirements of your position as well as a younger person.  When you turn 40, you officially join the ranks of “old people” against whom discrimination is prohibited by law.  The Age Discrimination in Employment Act of 1967 (ADEA) protects employees and job applicants aged 40 and older from discrimination in employment.  The ADEA makes it unlawful for employers with 20 or more employees to discriminate on the basis of age with respect to any term, condition, or privilege of employment.  This includes hiring, termination, promotions, salary, benefits, job assignments, and training.

According to a new class-action lawsuit filed in federal court in California against 3M Company, 3M engaged in a pattern of discrimination against employees older than 46 by giving them negative performance reviews, inferior training, lower pay, and fewer opportunities for promotion. The suit claims 3M discriminates against older workers throughout the entire United States, effectively shutting them out of top management positions.  The Plaintiffs estimate over 2000 workers have been the victims of 3M’s discriminatory employment practices.

The crux of the allegations apears to be that 3M singled out younger workers for inclusion in their intentsive “Six Sigma” management training program, virtually assuring that 3MADEA_woman.jpg leadership would be comprised entirely of younger workers.  The suit also claims that workers were asked to sign releases upon departing the company that contained misrepresentations of their legal rights.  The plaintiffs are asking the court to declare the releases unenforceable as a matter of law.

Qualified individuals with disabilities are entitled to an equal opportunity to benefit from the full range of employment-related opportunities available to others.  The Americans with Disabilities Act (ADA) prohibits discrimination in the workplace (as well as in government and other contexts) on the basis of disability.  It applies to employers with 15 or more employees and covers recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment.  The ADA also restricts the questions that can be asked about an applicant’s disability before a job offer is made, and it requires that employers make reasonable accommodations to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless doing so would result in undue hardship.

To be protected by the ADA, one must qualify as having a “disability” (or as having a close relationship with a disabled person) as that term is defined in the Act.  Under the ADA, a disabled person is: (1) one having a physical or mental impairment that substantially limits one or more major life activities, (2) a person who has a history or record of such an impairment, or (3) a person who is perceived by others as having such an impairment. See 42 U.S.C. § 12102(2).  The ADA does not specifically list or identify all possible impairments that would be considered disabilities.

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