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“Discrimination in the workplace is still a major problem,” said David B. Grinberg, a spokesman for the Equal Employment Opportunity Commission (EEOC). And a variety of employment decisions at the federal appellate court level confirm that workplace cases remain a constant presence on the federal docket. SAME-SEX HARASSMENT Professor Luis F. Mota joined the dental faculty at the University of Texas at Houston in 1993 to work with family friend and mentor Dr. Raul F. Caffesse, a well-known academic periodontist. Three years later, however, Caffesse allegedly made sexual advances to Mota while at a conference in Mexico. According to the 5th U.S. Circuit Court of Appeals, even though Mota rejected his mentor, the harassment continued. Mota v. University of Texas, 261 F.3d 512 (5th Cir. 2001). After Mota complained to university officials, there was “more evidence of retaliation in this case than in every case we’ve ever seen,” said John Zavitsanos, who represented the professor. The university discontinued a stipend, denied Mota’s request for paid leave, denied a later request for an extension of his unpaid leave and terminated his employment when he did not return to campus at the end of that leave. According to Zavitsanos, a partner at Houston’s Ahmad, Zavitsanos & Anaipakos, the school also removed Mota’s name from his office, refused to let him conduct research there while on leave, stripped his name from the school’s letterhead and barred him from serving on committees. After securing an academic position at another college, Mota sued the university and Caffesse for sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964. While Caffesse settled before trial for $290,000, the case against the university went to trial, and a Texas federal court jury awarded the professor $15,000 in compensatory damages, $104,435 in backpay and $328,565 in front pay. The trial judge initially reduced the jury’s front-pay award, but a post-trial occurrence changed the judge’s decision. According to Zavitsanos, after the verdict, University President M. David Low sent an e-mail to approximately 8,000 school employees, telling them that the court got the facts wrong and that Mota had simply failed to return to work. The judge then increased the front-pay award, saying the e-mail “attempted to present Mota in the worst professional light possible.” Mota recovered $194,989 in front pay and attorney fees of $388,367.51. The 5th Circuit affirmed all but $4,000 in costs. Although it represented the school in the case, the Texas attorney general’s office declined to comment on the ruling, referring inquiries to the university general counsel’s office. Calls to that office were not returned. HARASSMENT AND THE ADA Harrisonburg, Va., attorney Terry L. Armentrout didn’t set out to make new law when he filed an Americans with Disabilities Act case on behalf of his client, a former General Motors employee. But Armentrout not only succeeded in proving that his client had been subjected to ridicule and discrimination after returning from leave for chronic back pain, but he succeeded in proving that workplace harassment was actionable under the ADA. Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). GM first raised the issue of whether the ADA covers harassment as an affirmative defense. Although no appellate court had expressly ruled on the question, Armentrout said he “assumed from the get-go that it would be covered.” The 4th Circuit, in deciding GM’s appeal of the $207,000 verdict for the plaintiff, analogized the ADA’s statutory scheme to that of Title VII, which allows such claims and said, “We have little difficulty in concluding that the ADA, like Title VII, creates a cause of action for hostile work environment harassment.” GM was represented by Martin & Seibert of Martinsburg, W.Va. Ronald S. Rossi, an attorney in the firm, said, “the opinion speaks for itself,” and declined further comment. OUT WITH THE OLD For five years, Paul R. Yancey supervised his son, Paul Jr., while both worked on the same maintenance crew for the DeQueen and Eastern Railroad in Arkansas. But when the railroad’s corporate parent, Weyerhaeuser Co., allegedly started shifting many of the senior Yancey’s responsibilities to another, younger, manager, Yancey began to fear his job was in jeopardy, his lawyer said. On Feb. 2, 1998, a corporate vice president told Yancey, then 52, that either he or his son had to leave the company because their employment violated a never before enforced “no nepotism rule.” The company was only willing to pay severance to the older Yancey. When he waited a day before announcing that he wanted to stay, he was told to clean out his desk and leave the premises under escort. Yancey v. Weyerhaeuser Co., 277 F. 3d 1021 (8th Cir. 2002). Yancey sued Weyerhaeuser for violating the Age Discrimination in Employment Act, winning $169,625. His attorney, C. Burt Newell of Bachelor & Newell in Hot Springs National Park, Ark., attributed part of his success to a document obtained in discovery that noted that severance was available for the four oldest members of the railroad’s management team. Newell also credits his client with bringing the age discrimination issue to his attention. But Weyerhaeuser attorney Kathlyn G. Graves of Wright, Lindsey & Jennings of Little Rock, Ark., still disputes that Yancey’s age precipitated his termination. Graves said the DeQueen railroad had an “old management team,” noting that the executives responsible for firing Yancey were also in their 50s. Conceding that the company’s anti-nepotism policy had not previously been enforced, she added that the Yanceys’ situation also predated the arrival of the new executives at the company. In addition to damages that included back pay and attorney fees, the trial court ordered Yancey reinstated. The 8th Circuit affirmed, but Weyerhaeuser has sought a rehearing, and Yancey has not returned to work. WHEN DOES EMPLOYMENT END? Arthur L. Smith worked at BellSouth Telecommunications Corp. for 20 years. During his tenure he suffered from a chronic illness that caused him to take leave under the Family and Medical Leave Act of 1993. Eventually, he resigned, but three months later he reapplied, and was rejected for, the same job. Smith later learned from a friend in the company’s human resources department that his file was marked “Do not rehire,” with the notation that Smith “took a lot of FMLA leave.” He sued BellSouth for discrimination under the act. Smith v. BellSouth Telecommunications, 273 F.3d 1303 (2001). A lower court granted summary judgment to BellSouth, ruling that because Smith had resigned, he was not covered by the act and had no standing to sue. But the 11th Circuit reversed. Heather E. Newsom, a fourth-year associate at the Stewart Law Group in Birmingham, Ala., represented Smith. She persuaded the 11th Circuit panel to follow the 1st Circuit, the only other court to consider the issue. That court had allowed a post-employment suit under the FMLA in Duckworth v. Pratt & Whitney Inc., 152 F.3d 1 (1998). Writing for the 11th Circuit, Judge Charles R. Wilson said, “we cannot say that the ‘eligible employee’ language unmistakably indicates congressional intent to allow only those individuals who suffer adverse employment action while presently employed to bring suit.” Citing Duckworth, he noted the act offered three equitable remedies: employment, reinstatement and promotion, and said each referred to employees in different temporal circumstances. The court reinstated Smith’s claim, and his trial is scheduled for May 22. Because the suit is pending, BellSouth’s in-house lead counsel, Leon H. Lee Jr., declined to comment on the FMLA ruling. WHAT MIGHT CAST LIGHT Charging that the Roadway Express Inc. trucking company failed to hire women for some jobs and failed to promote blacks into sales and upper management positions, the EEOC in 1994 filed a charge against the company. Two years later, the agency issued a subpoena asking Roadway to produce records showing its hiring of minorities and promoting of women. The trucking firm balked about disclosing current practices and the EEOC sued. EEOC v. Roadway Express Inc., 261 F.3d 634 (6th Cir. 2001). Roadway said that the disputed materials were irrelevant. An Ohio federal district court disagreed and ordered the trucker to produce the records. Roadway appealed. The 6th Circuit said courts have broadly construed the word “relevant” and have afforded the EEOC access to virtually any material that might cast light on the allegations, including information compiled by the company after the EEOC charge was filed. Because the Roadway investigation is ongoing, EEOC Assistant General Counsel Lorraine Davis would not comment. But, echoing the 6th Circuit, she said, “it may be important to look at the broader context … to compare what they’re doing in other jobs in other categories.” If the agency found a pattern of discrimination, it would first attempt conciliation with an offending employer, Davis said. If conciliation failed, however, the agency can file suit seeking injunctive relief to stop the discriminatory practices.

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