National Litigation Hotline

Prima Facie Reverse Discrimination Elements Unchanged

Holding that recent Supreme Court authority did not change the elements of a reverse discrimination claim, the Tenth Circuit has held that a white former Army chemist could not pursue a Title VII reverse race discrimination claim in the Army because he could not show that the Army has historically discriminated against whites. Mattioda v. White, 2003 U.S. App. LEXIS 6283 (10th Cir. April 1).

Thomas Mattioda began working as one of two chemists in the Army's Tulsa, OK, Engineering & Construction Division in the fall of 1995 under a series of 1-year appointments. In early 1998, Mattioda was informed that his future involvement in Army projects was uncertain and, in October of that year, was informed that some of his responsibilities were being transferred to others. Later, the Army determined that only one chemist was needed in the Tulsa division due to a decrease in work and, upon the recommendation of the Branch Chief, refused to extend Mattioda's appointment for another year. After filing EEO complaints with the Army's Equal Employment Opportunity office, Mattioda sued Thomas E. White, the Secretary of the Department of the Army, alleging that he suffered discrimination because he was white. The district court granted summary judgment to the Army.

The Tenth Circuit affirmed. The court noted that under its precedent in Notari v. Denver Water Dep't, 971 F.2d 585, the prima facie elements of a claim of Title VII discrimination had been modified slightly in reverse discrimination cases, such as to require a plaintiff claiming reverse discrimination to establish 'background circumstances supporting an inference that the defendant is one of those unusual employers who discriminates against the majority.' Mattioda argued that the decisions of the U.S. Supreme Court in Oncale v. Sundowner Offshore Servs, Inc., 523 U.S. 75 (1998) and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) had overruled Notari. The Tenth Circuit disagreed. In Oncale, the Tenth Circuit noted, the Supreme Court had merely rejected the 'conclusive presumption' that an employer would not discriminate against the majority. Thus, Oncale did not prevent the Tenth Circuit from requiring Mattioda to meet the additional burden of showing that his former employer had a history of discriminating against the group of which Mattioda was a member. Reeves, Mattioda had argued, required that Mattioda only demonstrate that he was a member of a protected class to satisfy the first element of a prima facie case of discrimination ' not show more, as Notari appeared to require. The Tenth Circuit rejected this argument as well, holding that the 'protected class' language of Reeves (an age discrimination case) had no application in the context of a reverse race discrimination case brought under Title VII. The Tenth Circuit therefore affirmed the grant of summary judgment to the Army by the district court.

Plaintiff's Financial Burden Does Not Preclude Costs and Fees to Defendant

The Fourth Circuit has affirmed a district court order awarding costs and attorneys' fees to E. I. du Pont de Nemours & Co. by an employee who lost her discrimination suit against the company, even though the order would impose a 'substantial financial burden' on the plaintiff. Bass v. E. I. du Pont de Nemours & Co., 2003 U.S. App. LEXIS 5788 (4th Cir. March 26).

In 1998, du Pont changed plaintiff Portia Bass's job duties, and her former job was given to a white woman less than 40 years of age. Although Bass complained about her reassignment, du Pont concluded, following an investigation, that the reassignment was proper because of Bass' alleged inability to complete work quickly enough and because of her doubtful 'business judgment.' Bass received no reduction in pay as a result of the change in her duties. Du Pont, however, did not inform Bass of these reasons at the time of her reassignment. Prior to her reassignment, Bass had been consistently promoted, given increasing responsibilities, and told that her performance was satisfactory. Following her reassignment, Bass' relationship with her employer increasingly deteriorated. Bass ultimately filed suit in federal court, alleging violations of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, and state conspiracy law. The district court dismissed some counts and later granted summary judgment to du Pont on Bass' remaining discrimination claims. The district court also awarded du Pont $10,968 in attorneys' fees and $3627 in costs, and imposed $1000 on Bass in Rule 11 sanctions for her conspiracy claims, which, according to the court, 'lacked any evidentiary support.'

On appeal, the Fourth Circuit affirmed the district court's award of attorneys' fees and costs, but it reversed the lower court's imposition of Rule 11 sanctions. The Court of Appeals agreed with du Pont that Bass' claims had been properly dismissed because her complaint merely contained allegations of her difficulties with her co-workers, which did not 'describe the type of severe or pervasive gender, race, or age-based activity necessary' to state a Title VII claim. The Court further held that, despite the fact that the award of fees 'will impose a substantial financial burden on Bass,' Federal Rule of Civil Procedure 54(d)(1) created a presumption that the prevailing party in a lawsuit should be awarded costs. Thus, the district court did not abuse its discretion in awarding du Pont costs, which amounted to more than half of Bass' disposable income. The Fourth Circuit also held, however, that the district court failed to comply with the procedural requirements of Rule 11, and overturned the impositions of sanctions against Bass on that ground. Although 'the district court did not abuse its discretion in determining that Bass' conspiracy claims warranted sanctions,' long after the resolution of Bass' claims on the merits, Dupont made a renewed motion for sanctions relating to the conspiracy charges in Bass' complaint. In ruling on du Pont's motion for sanctions, the district court noted that du Pont's motion 'was not served and filed before the conspiracy claims were disposed of' but proceeded, in the same order, to order sanctions sua sponte. Accordingly, the Fourth Circuit overturned the district court's imposition of Rule 11 sanctions.

Pancreatic Condition Not 'Substantially Limiting' under ADA

The Fifth Circuit has held that a heavy machine operator who was allegedly fired by General Electric Co. because he could not operate machinery while taking medication for his pancreatitis was not 'substantially limited' in the major life activity of eating, and therefore could not maintain a claim against GE under the Americans with Disabilities Act. Waldrip v. General Elec. Co., 2003 U.S. App. LEXIS 6303 (5th Cir. April 1).

William Waldrip, a 16-year employee of General Electric, was diagnosed with pancreatitis in 1996, and began taking pain medication. This medication, which was designed to suppress Waldrip's central nervous system, carried with it a typical warning that heavy equipment and machinery not be used while under its influence. For 3 years, Waldrip continued to work while taking the medication, and never informed GE that he was using it. In 1999, Waldrip mentioned to a company nurse that he took medication, and the nurse asked him to bring the prescription bottles to work for her to examine. When the nurse saw the medication, she told Waldrip that he could not work while using it. GE contended that it told Waldrip only that he would have to either switch medications or avoid taking them the evening before a scheduled shift. Waldrip, on the other hand, contended that GE fired him and ejected him from the premises. In any event, he never returned to work, and filed suit under the ADA. In the district court, Waldrip claimed that he had an ADA-defined disability because his pancreatitis substantially limited him in a major life activity: eating. The district court granted summary judgment for GE, holding that Waldrip was not disabled.

On review, the Fifth Circuit affirmed the decision of the district court. To be protected by the ADA, an employee must demonstrate that he or she 1) has an impairment; 2) has had one or more major life activities limited by the impairment; and 3) has experienced substantial limitation. While the Fifth Circuit agreed that Waldrip's pancreatitis qualified as an 'impairment' according to its own precedents, and that eating is a major life activity of 'central importance to daily life,' the court disagreed that his limitation was substantial in nature. At most, Waldrip's illness caused him to be occasionally absent from work, but this consequence was insufficiently severe to demonstrate a substantial limitation. The court also held that Waldrip was not 'regarded as' disabled under the ADA. Waldrip's contention that GE regarded him as disabled fell flat in the face of uncontroverted record evidence that he routinely took sick leave without protest from GE, and by the fact that GE took action against him only when it learned that he had been operating heavy machinery while under the influence of medication.

Thomas Mattioda began working as one of two chemists in the Army's Tulsa, OK, Engineering & Construction Division in the fall of 1995 under a series of 1-year appointments. In early 1998, Mattioda was informed that his future involvement in Army projects was uncertain and, in October of that year, was informed that some of his responsibilities were being transferred to others. Later, the Army determined that only one chemist was needed in the Tulsa division due to a decrease in work and, upon the recommendation of the Branch Chief, refused to extend Mattioda's appointment for another year. After filing EEO complaints with the Army's Equal Employment Opportunity office, Mattioda sued Thomas E. White, the Secretary of the Department of the Army, alleging that he suffered discrimination because he was white. The district court granted summary judgment to the Army.

The Tenth Circuit affirmed. The court noted that under its precedent in Notari v. Denver Water Dep't, 971 F.2d 585, the prima facie elements of a claim of Title VII discrimination had been modified slightly in reverse discrimination cases, such as to require a plaintiff claiming reverse discrimination to establish 'background circumstances supporting an inference that the defendant is one of those unusual employers who discriminates against the majority.' Mattioda argued that the decisions of the U.S. Supreme Court in Oncale v. Sundowner Offshore Servs, Inc., 523 U.S. 75 (1998) and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) had overruled Notari. The Tenth Circuit disagreed. In Oncale, the Tenth Circuit noted, the Supreme Court had merely rejected the 'conclusive presumption' that an employer would not discriminate against the majority. Thus, Oncale did not prevent the Tenth Circuit from requiring Mattioda to meet the additional burden of showing that his former employer had a history of discriminating against the group of which Mattioda was a member. Reeves, Mattioda had argued, required that Mattioda only demonstrate that he was a member of a protected class to satisfy the first element of a prima facie case of discrimination ' not show more, as Notari appeared to require. The Tenth Circuit rejected this argument as well, holding that the 'protected class' language of Reeves (an age discrimination case) had no application in the context of a reverse race discrimination case brought under Title VII. The Tenth Circuit therefore affirmed the grant of summary judgment to the Army by the district court.The Fourth Circuit has affirmed a district court order awarding costs and attorneys' fees to E. I. du Pont de Nemours & Co. by an employee who lost her discrimination suit against the company, even though the order would impose a 'substantial financial burden' on the plaintiff. Bass v. E. I. du Pont de Nemours & Co., 2003 U.S. App. LEXIS 5788 (4th Cir. March 26).

In 1998, du Pont changed plaintiff Portia Bass' job duties, and her former job was given to a white woman less than 40 years of age. Although Bass complained about her reassignment, du Pont concluded, following an investigation, that the reassignment was proper because of Bass' alleged inability to complete work quickly enough and because of her doubtful 'business judgment.' Bass received no reduction in pay as a result of the change in her duties. Du Pont, however, did not inform Bass of these reasons at the time of her reassignment. Prior to her reassignment, Bass had been consistently promoted, given increasing responsibilities, and told that her performance was satisfactory. Following her reassignment, Bass' relationship with her employer increasingly deteriorated. Bass ultimately filed suit in federal court, alleging violations of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, and state conspiracy law. The district court dismissed some counts and later granted summary judgment to du Pont on Bass' remaining discrimination claims. The district court also awarded du Pont $10,968 in attorneys' fees and $3627 in costs, and imposed $1000 on Bass in Rule 11 sanctions for her conspiracy claims, which, according to the court, 'lacked any evidentiary support.'

On appeal, the Fourth Circuit affirmed the district court's award of attorneys' fees and costs, but it reversed the lower court's imposition of Rule 11 sanctions. The Court of Appeals agreed with du Pont that Bass' claims had been properly dismissed because her complaint merely contained allegations of her difficulties with her co-workers, which did not 'describe the type of severe or pervasive gender, race, or age-based activity necessary' to state a Title VII claim. The Court further held that, despite the fact that the award of fees 'will impose a substantial financial burden on Bass,' Federal Rule of Civil Procedure 54(d)(1) created a presumption that the prevailing party in a lawsuit should be awarded costs. Thus, the district court did not abuse its discretion in awarding du Pont costs, which amounted to more than half of Bass' disposable income. The Fourth Circuit also held, however, that the district court failed to comply with the procedural requirements of Rule 11, and overturned the impositions of sanctions against Bass on that ground. Although 'the district court did not abuse its discretion in determining that Bass' conspiracy claims warranted sanctions,' long after the resolution of Bass' claims on the merits, Dupont made a renewed motion for sanctions relating to the conspiracy charges in Bass' complaint. In ruling on du Pont's motion for sanctions, the district court noted that du Pont's motion 'was not served and filed before the conspiracy claims were disposed of' but proceeded, in the same order, to order sanctions sua sponte. Accordingly, the Fourth Circuit overturned the district court's imposition of Rule 11 sanctions.The Fifth Circuit has held that a heavy machine operator who was allegedly fired by General Electric Co. because he could not operate machinery while taking medication for his pancreatitis was not 'substantially limited' in the major life activity of eating, and therefore could not maintain a claim against GE under the Americans with Disabilities Act. Waldrip v. General Elec. Co., 2003 U.S. App. LEXIS 6303 (5th Cir. April 1).

William Waldrip, a 16-year employee of General Electric, was diagnosed with pancreatitis in 1996, and began taking pain medication. This medication, which was designed to suppress Waldrip's central nervous system, carried with it a typical warning that heavy equipment and machinery not be used while under its influence. For 3 years, Waldrip continued to work while taking the medication, and never informed GE that he was using it. In 1999, Waldrip mentioned to a company nurse that he took medication, and the nurse asked him to bring the prescription bottles to work for her to examine. When the nurse saw the medication, she told Waldrip that he could not work while using it. GE contended that it told Waldrip only that he would have to either switch medications or avoid taking them the evening before a scheduled shift. Waldrip, on the other hand, contended that GE fired him and ejected him from the premises. In any event, he never returned to work, and filed suit under the ADA. In the district court, Waldrip claimed that he had an ADA-defined disability because his pancreatitis substantially limited him in a major life activity: eating. The district court granted summary judgment for GE, holding that Waldrip was not disabled under the law.

On review, the Fifth Circuit affirmed the decision of the district court. To be protected by the ADA, an employee must demonstrate that he or she 1) has an impairment; 2) has had one or more major life activities limited by the impairment; and 3) has experienced substantial limitation. While the Fifth Circuit agreed that Waldrip's pancreatitis qualified as an 'impairment' according to its own precedents, and that eating is a major life activity of 'central importance to daily life,' the court disagreed that his limitation was substantial in nature. At most, Waldrip's illness caused him to be occasionally absent from work, but this consequence was insufficiently severe to demonstrate a substantial limitation.

The court also held that Waldrip was not 'regarded as' disabled under the ADA. Waldrip's contention that GE regarded him as disabled fell flat in the face of uncontroverted record evidence that he routinely took sick leave without protest from GE, and by the fact that GE took action against him only when it learned that he had been operating heavy machinery while under the influence of medication.

The National Litigation Hotline was prepared by the labor and employment department of Winston & Strawn's New York office.

Adopting a broader definition of 'supervisor' than other Courts of Appeals have done for purposes of establishing an employer's vicarious liability in a sexual harassment suit, the Second Circuit recently held that a male employee who did not have authority to hire, fire, reassign, promote, or change the benefits of a female co-worker was nonetheless her supervisor for Title VII purposes. Mack v. Otis Elevator Co., 2003 U.S. App. LEXIS 6948 (2d Cir. April 11).

Yasharay Mack started working for Otis Elevator Company in 1999 as an elevator mechanic's helper. In her position, she assisted six elevator mechanics. From the time of her hire, Mack claimed, mechanic James Connolly made lascivious comments regarding her appearance, regularly changed out of his uniform in front of her, and on at least one occasion, tried to force her to sit on his lap and kiss him. He also commented that 'spics' and 'niggers' were not meant to do elevator work. Mack repeatedly complained to Connolly's supervisor about him, but the company took no action. Mack ultimately filed suit in district court, alleging a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. Under Burlington Industries, Inc. v. Ellerth , 524 U.S. 742 (1998) and Faragher v. City of Boca Raton , 524 U.S. 775 (1998), an employer is vicariously liable for the harassment of an employee only when 'a 'supervisor with immediate (or successively higher) authority over the employee' has engaged in the complained of conduct.' ' The company argued that it should not be held liable for Connolly's harassment of Mack because Connolly was her co-worker, not her supervisor. The company noted that Connolly could not have hired or fired Mack, could not reassign her to different duties or significantly change her benefits, and had no power to promote her ' in other words, that he could not cause Mack to suffer an adverse employment action. The district court granted summary judgment to Otis Elevator.

On appeal, the Second Circuit reversed the decision of the district court. The Court held that although the issue of whether Connolly could take an adverse employment action over Mack is relevant to the availability of an affirmative defense under Ellerth and Faragher, 'it does not affect the preliminary assessment of whether the employer may be vicariously liable.' That assessment, the Court held, 'depends on whether the power ' economic or otherwise, of the harassing employee over the subordinate victim given by the employer to the harasser ' enabled the harasser, or materially augmented his or her ability' to create a hostile work environment. The Second Circuit thus concluded that the authority over Mack given to Connolly by Otis Elevator led to the conclusion that the company should be held vicariously liable for Connolly's harassment of Mack.

Prima Facie Reverse Discrimination Elements Unchanged

Holding that recent Supreme Court authority did not change the elements of a reverse discrimination claim, the Tenth Circuit has held that a white former Army chemist could not pursue a Title VII reverse race discrimination claim in the Army because he could not show that the Army has historically discriminated against whites. Mattioda v. White, 2003 U.S. App. LEXIS 6283 (10th Cir. April 1).

Thomas Mattioda began working as one of two chemists in the Army's Tulsa, OK, Engineering & Construction Division in the fall of 1995 under a series of 1-year appointments. In early 1998, Mattioda was informed that his future involvement in Army projects was uncertain and, in October of that year, was informed that some of his responsibilities were being transferred to others. Later, the Army determined that only one chemist was needed in the Tulsa division due to a decrease in work and, upon the recommendation of the Branch Chief, refused to extend Mattioda's appointment for another year. After filing EEO complaints with the Army's Equal Employment Opportunity office, Mattioda sued Thomas E. White, the Secretary of the Department of the Army, alleging that he suffered discrimination because he was white. The district court granted summary judgment to the Army.

The Tenth Circuit affirmed. The court noted that under its precedent in Notari v. Denver Water Dep't , 971 F.2d 585, the prima facie elements of a claim of Title VII discrimination had been modified slightly in reverse discrimination cases, such as to require a plaintiff claiming reverse discrimination to establish 'background circumstances supporting an inference that the defendant is one of those unusual employers who discriminates against the majority.' Mattioda argued that the decisions of the U.S. Supreme Court in Oncale v. Sundowner Offshore Servs, Inc. , 523 U.S. 75 (1998) and Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133 (2000) had overruled Notari . The Tenth Circuit disagreed. In Oncale, the Tenth Circuit noted, the Supreme Court had merely rejected the 'conclusive presumption' that an employer would not discriminate against the majority. Thus, Oncale did not prevent the Tenth Circuit from requiring Mattioda to meet the additional burden of showing that his former employer had a history of discriminating against the group of which Mattioda was a member. Reeves, Mattioda had argued, required that Mattioda only demonstrate that he was a member of a protected class to satisfy the first element of a prima facie case of discrimination ' not show more, as Notari appeared to require. The Tenth Circuit rejected this argument as well, holding that the 'protected class' language of Reeves (an age discrimination case) had no application in the context of a reverse race discrimination case brought under Title VII. The Tenth Circuit therefore affirmed the grant of summary judgment to the Army by the district court.

Plaintiff's Financial Burden Does Not Preclude Costs and Fees to Defendant

The Fourth Circuit has affirmed a district court order awarding costs and attorneys' fees to E. I. du Pont de Nemours & Co. by an employee who lost her discrimination suit against the company, even though the order would impose a 'substantial financial burden' on the plaintiff. Bass v. E. I. du Pont de Nemours & Co., 2003 U.S. App. LEXIS 5788 (4th Cir. March 26).

In 1998, du Pont changed plaintiff Portia Bass's job duties, and her former job was given to a white woman less than 40 years of age. Although Bass complained about her reassignment, du Pont concluded, following an investigation, that the reassignment was proper because of Bass' alleged inability to complete work quickly enough and because of her doubtful 'business judgment.' Bass received no reduction in pay as a result of the change in her duties. Du Pont, however, did not inform Bass of these reasons at the time of her reassignment. Prior to her reassignment, Bass had been consistently promoted, given increasing responsibilities, and told that her performance was satisfactory. Following her reassignment, Bass' relationship with her employer increasingly deteriorated. Bass ultimately filed suit in federal court, alleging violations of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, and state conspiracy law. The district court dismissed some counts and later granted summary judgment to du Pont on Bass' remaining discrimination claims. The district court also awarded du Pont $10,968 in attorneys' fees and $3627 in costs, and imposed $1000 on Bass in Rule 11 sanctions for her conspiracy claims, which, according to the court, 'lacked any evidentiary support.'

On appeal, the Fourth Circuit affirmed the district court's award of attorneys' fees and costs, but it reversed the lower court's imposition of Rule 11 sanctions. The Court of Appeals agreed with du Pont that Bass' claims had been properly dismissed because her complaint merely contained allegations of her difficulties with her co-workers, which did not 'describe the type of severe or pervasive gender, race, or age-based activity necessary' to state a Title VII claim. The Court further held that, despite the fact that the award of fees 'will impose a substantial financial burden on Bass,' Federal Rule of Civil Procedure 54(d)(1) created a presumption that the prevailing party in a lawsuit should be awarded costs. Thus, the district court did not abuse its discretion in awarding du Pont costs, which amounted to more than half of Bass' disposable income. The Fourth Circuit also held, however, that the district court failed to comply with the procedural requirements of Rule 11, and overturned the impositions of sanctions against Bass on that ground. Although 'the district court did not abuse its discretion in determining that Bass' conspiracy claims warranted sanctions,' long after the resolution of Bass' claims on the merits, Dupont made a renewed motion for sanctions relating to the conspiracy charges in Bass' complaint. In ruling on du Pont's motion for sanctions, the district court noted that du Pont's motion 'was not served and filed before the conspiracy claims were disposed of' but proceeded, in the same order, to order sanctions sua sponte. Accordingly, the Fourth Circuit overturned the district court's imposition of Rule 11 sanctions.

Pancreatic Condition Not 'Substantially Limiting' under ADA

The Fifth Circuit has held that a heavy machine operator who was allegedly fired by General Electric Co. because he could not operate machinery while taking medication for his pancreatitis was not 'substantially limited' in the major life activity of eating, and therefore could not maintain a claim against GE under the Americans with Disabilities Act. Waldrip v. General Elec. Co., 2003 U.S. App. LEXIS 6303 (5th Cir. April 1).

William Waldrip, a 16-year employee of General Electric, was diagnosed with pancreatitis in 1996, and began taking pain medication. This medication, which was designed to suppress Waldrip's central nervous system, carried with it a typical warning that heavy equipment and machinery not be used while under its influence. For 3 years, Waldrip continued to work while taking the medication, and never informed GE that he was using it. In 1999, Waldrip mentioned to a company nurse that he took medication, and the nurse asked him to bring the prescription bottles to work for her to examine. When the nurse saw the medication, she told Waldrip that he could not work while using it. GE contended that it told Waldrip only that he would have to either switch medications or avoid taking them the evening before a scheduled shift. Waldrip, on the other hand, contended that GE fired him and ejected him from the premises. In any event, he never returned to work, and filed suit under the ADA. In the district court, Waldrip claimed that he had an ADA-defined disability because his pancreatitis substantially limited him in a major life activity: eating. The district court granted summary judgment for GE, holding that Waldrip was not disabled.

On review, the Fifth Circuit affirmed the decision of the district court. To be protected by the ADA, an employee must demonstrate that he or she 1) has an impairment; 2) has had one or more major life activities limited by the impairment; and 3) has experienced substantial limitation. While the Fifth Circuit agreed that Waldrip's pancreatitis qualified as an 'impairment' according to its own precedents, and that eating is a major life activity of 'central importance to daily life,' the court disagreed that his limitation was substantial in nature. At most, Waldrip's illness caused him to be occasionally absent from work, but this consequence was insufficiently severe to demonstrate a substantial limitation. The court also held that Waldrip was not 'regarded as' disabled under the ADA. Waldrip's contention that GE regarded him as disabled fell flat in the face of uncontroverted record evidence that he routinely took sick leave without protest from GE, and by the fact that GE took action against him only when it learned that he had been operating heavy machinery while under the influence of medication.

Thomas Mattioda began working as one of two chemists in the Army's Tulsa, OK, Engineering & Construction Division in the fall of 1995 under a series of 1-year appointments. In early 1998, Mattioda was informed that his future involvement in Army projects was uncertain and, in October of that year, was informed that some of his responsibilities were being transferred to others. Later, the Army determined that only one chemist was needed in the Tulsa division due to a decrease in work and, upon the recommendation of the Branch Chief, refused to extend Mattioda's appointment for another year. After filing EEO complaints with the Army's Equal Employment Opportunity office, Mattioda sued Thomas E. White, the Secretary of the Department of the Army, alleging that he suffered discrimination because he was white. The district court granted summary judgment to the Army.

The Tenth Circuit affirmed. The court noted that under its precedent in Notari v. Denver Water Dep't, 971 F.2d 585, the prima facie elements of a claim of Title VII discrimination had been modified slightly in reverse discrimination cases, such as to require a plaintiff claiming reverse discrimination to establish 'background circumstances supporting an inference that the defendant is one of those unusual employers who discriminates against the majority.' Mattioda argued that the decisions of the U.S. Supreme Court in Oncale v. Sundowner Offshore Servs, Inc., 523 U.S. 75 (1998) and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) had overruled Notari. The Tenth Circuit disagreed. In Oncale, the Tenth Circuit noted, the Supreme Court had merely rejected the 'conclusive presumption' that an employer would not discriminate against the majority. Thus, Oncale did not prevent the Tenth Circuit from requiring Mattioda to meet the additional burden of showing that his former employer had a history of discriminating against the group of which Mattioda was a member. Reeves, Mattioda had argued, required that Mattioda only demonstrate that he was a member of a protected class to satisfy the first element of a prima facie case of discrimination ' not show more, as Notari appeared to require. The Tenth Circuit rejected this argument as well, holding that the 'protected class' language of Reeves (an age discrimination case) had no application in the context of a reverse race discrimination case brought under Title VII. The Tenth Circuit therefore affirmed the grant of summary judgment to the Army by the district court.The Fourth Circuit has affirmed a district court order awarding costs and attorneys' fees to E. I. du Pont de Nemours & Co. by an employee who lost her discrimination suit against the company, even though the order would impose a 'substantial financial burden' on the plaintiff. Bass v. E. I. du Pont de Nemours & Co., 2003 U.S. App. LEXIS 5788 (4th Cir. March 26).

In 1998, du Pont changed plaintiff Portia Bass' job duties, and her former job was given to a white woman less than 40 years of age. Although Bass complained about her reassignment, du Pont concluded, following an investigation, that the reassignment was proper because of Bass' alleged inability to complete work quickly enough and because of her doubtful 'business judgment.' Bass received no reduction in pay as a result of the change in her duties. Du Pont, however, did not inform Bass of these reasons at the time of her reassignment. Prior to her reassignment, Bass had been consistently promoted, given increasing responsibilities, and told that her performance was satisfactory. Following her reassignment, Bass' relationship with her employer increasingly deteriorated. Bass ultimately filed suit in federal court, alleging violations of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, and state conspiracy law. The district court dismissed some counts and later granted summary judgment to du Pont on Bass' remaining discrimination claims. The district court also awarded du Pont $10,968 in attorneys' fees and $3627 in costs, and imposed $1000 on Bass in Rule 11 sanctions for her conspiracy claims, which, according to the court, 'lacked any evidentiary support.'

On appeal, the Fourth Circuit affirmed the district court's award of attorneys' fees and costs, but it reversed the lower court's imposition of Rule 11 sanctions. The Court of Appeals agreed with du Pont that Bass' claims had been properly dismissed because her complaint merely contained allegations of her difficulties with her co-workers, which did not 'describe the type of severe or pervasive gender, race, or age-based activity necessary' to state a Title VII claim. The Court further held that, despite the fact that the award of fees 'will impose a substantial financial burden on Bass,' Federal Rule of Civil Procedure 54(d)(1) created a presumption that the prevailing party in a lawsuit should be awarded costs. Thus, the district court did not abuse its discretion in awarding du Pont costs, which amounted to more than half of Bass' disposable income. The Fourth Circuit also held, however, that the district court failed to comply with the procedural requirements of Rule 11, and overturned the impositions of sanctions against Bass on that ground. Although 'the district court did not abuse its discretion in determining that Bass' conspiracy claims warranted sanctions,' long after the resolution of Bass' claims on the merits, Dupont made a renewed motion for sanctions relating to the conspiracy charges in Bass' complaint. In ruling on du Pont's motion for sanctions, the district court noted that du Pont's motion 'was not served and filed before the conspiracy claims were disposed of' but proceeded, in the same order, to order sanctions sua sponte. Accordingly, the Fourth Circuit overturned the district court's imposition of Rule 11 sanctions.The Fifth Circuit has held that a heavy machine operator who was allegedly fired by General Electric Co. because he could not operate machinery while taking medication for his pancreatitis was not 'substantially limited' in the major life activity of eating, and therefore could not maintain a claim against GE under the Americans with Disabilities Act. Waldrip v. General Elec. Co., 2003 U.S. App. LEXIS 6303 (5th Cir. April 1).

William Waldrip, a 16-year employee of General Electric, was diagnosed with pancreatitis in 1996, and began taking pain medication. This medication, which was designed to suppress Waldrip's central nervous system, carried with it a typical warning that heavy equipment and machinery not be used while under its influence. For 3 years, Waldrip continued to work while taking the medication, and never informed GE that he was using it. In 1999, Waldrip mentioned to a company nurse that he took medication, and the nurse asked him to bring the prescription bottles to work for her to examine. When the nurse saw the medication, she told Waldrip that he could not work while using it. GE contended that it told Waldrip only that he would have to either switch medications or avoid taking them the evening before a scheduled shift. Waldrip, on the other hand, contended that GE fired him and ejected him from the premises. In any event, he never returned to work, and filed suit under the ADA. In the district court, Waldrip claimed that he had an ADA-defined disability because his pancreatitis substantially limited him in a major life activity: eating. The district court granted summary judgment for GE, holding that Waldrip was not disabled under the law.

On review, the Fifth Circuit affirmed the decision of the district court. To be protected by the ADA, an employee must demonstrate that he or she 1) has an impairment; 2) has had one or more major life activities limited by the impairment; and 3) has experienced substantial limitation. While the Fifth Circuit agreed that Waldrip's pancreatitis qualified as an 'impairment' according to its own precedents, and that eating is a major life activity of 'central importance to daily life,' the court disagreed that his limitation was substantial in nature. At most, Waldrip's illness caused him to be occasionally absent from work, but this consequence was insufficiently severe to demonstrate a substantial limitation.

The court also held that Waldrip was not 'regarded as' disabled under the ADA. Waldrip's contention that GE regarded him as disabled fell flat in the face of uncontroverted record evidence that he routinely took sick leave without protest from GE, and by the fact that GE took action against him only when it learned that he had been operating heavy machinery while under the influence of medication.

The National Litigation Hotline was prepared by the labor and employment department of Winston & Strawn's New York office.