National Litigation Hotline

The court initially denied summary judgment to Joliet Junior College, but later reconsidered and granted summary judgment. It held that even though Prater alleged direct evidence of age discrimination (ie, her supervisor allegedly said, “I'm getting rid of older people so that I can hire in younger people. I can mold them the way I want and pay them less”), there were two motives sufficient to account for her termination. The fact that one of the motives was illegal and improper did not support a remedy given that Joliet Junior College would have made the same decision on the legitimate ground alone. Prater's statement to her supervisor showed her understanding that her job was in jeopardy if she did not assume different responsibilities. This established a legitimate ground for Prater's termination, and the Court held she would have been fired by Joliet Junior College on those grounds irrespective of age discrimination.

Five Months Too Long to Support Claim for Retaliation

The Tenth Circuit has held that a 5-month delay between filing a charge with the EEOC and a termination is too long to support a claim of retaliation. Guevara v. Best Western Stevens Inn, Inc., 2003 WL 22407428 (10th Cir. Oct. 22).

Plaintiff Jane Guevara's position was as an evening head waitress. In 2000, she filed a charge with the EEOC asserting age and national origin discrimination dating back to 1974. Four months later, Guevara was placed on administrative leave with pay, and she was fired a month later. The employer claimed that she had violated instructions and created problems with other employees.

Guevara brought suit in federal court under Title VII and the ADEA. The district court granted summary judgment to the employer, determining that all of her claims were untimely except for her retaliation claim; however, the district court held that she failed to establish a prima facie case of retaliation.

On appeal, the Tenth Circuit affirmed. It held that no causal connection existed between Guevara's filing an EEOC charge and her ultimate termination, given the time elapsed between the two events (ie, 5 months).

Remand for Consideration of State Choice of Law Principles Required

The issue of whether New York law should be applied to a California-based employee's discrimination claim, as called for by the employment agreement between the parties, has been remanded by the Second Circuit for consideration of New York's choice of law principles. Cap Gemini Ernst & Young v. Nackel, 2003 WL 22331670 (2d Cir. Oct. 14).

Plaintiff John Nackel and Cap Gemini Ernst & Young (Cap Gemini) signed an employment agreement that required any discrimination claims to be settled by arbitration, which was to be governed by and construed in accordance with New York law. Nackel filed a lawsuit in a California court under the FEHA, claiming that he had been dismissed for protesting the discriminatory conduct of an executive. Cap Gemini responded by commencing an arbitration, and filing a lawsuit in federal district court in New York seeking to compel arbitration. The New York court granted Cap Gemini's motion to compel arbitration and stayed Nackel from pursuing the California litigation.

On appeal, Nackel argued that he worked and lived in California, that he was asserting claims under California law, and that the events giving rise to his claim occurred in California. He also claimed that California law would invalidate the arbitration agreement. The Second Circuit remanded the case to the federal district court, directing it to answer two questions: 1) did the parties enter into a contractually valid arbitration agreement, and 2) if so, does the parties' dispute fall within the scope of the agreement? The court noted that the choice of law provisions in the agreement were not the end of the matter, because New York law permits a court to disregard the choice when the most significant contacts with the matter in dispute occur in another state.

Collective Action Needs Plaintiff with Actual Claim to Survive

Ruling on an issue of first impression, the Eleventh Circuit has held that a named plaintiff in a Fair Labor Standards Act (FLSA) class action cannot remain in the action and notify potential class members of the lawsuit once his own claims have been settled. Grant v. Maxim Healthcare Servs. Inc., (11th Cir. Oct. 20).

Ross Basil, a nurse, and three of his co-workers at Maxim Healthcare Services (Maxim) filed an FLSA action on behalf of both themselves and other similarly situated employees seeking unpaid back wages and overtime compensation, as well as attorneys' fees, for Maxim's failure to pay overtime. Specifically, the nurses claimed that Maxim had violated Section 207 of the FLSA by failing to pay them for time worked in excess of 40 hours per week at a rate of one and one-half times the regular rate. The plaintiffs also alleged they were not paid the proper minimum rate and experience retaliation after complaining. Although the action was initially pursued as a class claim, three of the four plaintiffs voluntarily dismissed their claims. Maxim also paid Basil claimed unpaid wages and overtime pay.

The U.S. District Court for the Southern District of Florida resolved most of Basil's claims and declined to allow him to notify potential opt-in plaintiffs because, the court found, there was no evidence that other plaintiffs sought to join the lawsuit. Maxim and Basil then settled the remaining claims. However, Basil asked that he be allowed to remain in the case in order to appeal the district court's ruling with regard to notifying potential opt-in plaintiffs.

On appeal, the Eleventh Circuit affirmed the district court's ruling. In FLSA collective actions, the court explained, there is no role for a “private attorney general,” that is, an individual filing a suit to vindicate a public legal interest rather than his or her own. Unlike in a traditional Rule 23 class action, in an FLSA class action a claimant should not be permitted to generate liability in favor of uninvolved class members. In other words, allowing Basil to press on with the collective action despite the lack of his own personal economic interest in the suit would permit a person who could obtain no economic gain to pursue an action where no other class members might exist. “The existence of a class under Rule 23,” the court explained further, “does not depend in theory on the participation of other class members … Irrespective of whether other class members take any or no role in the action, they are bound by the judgment, whether favorable or unfavorable, unless they affirmatively 'opt out' of the suit.” The Rule 23 opt-out approach is markedly different from an FLSA collective action, which proceeds by way of “opt-in” provisions limiting the aggrieved class to those seeking a decision on liability, and eliminating those only seeking judgment on damages.

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

Employee Terminated for Proper and Improper Motives Was Legally Fired

A federal district court has ruled that an administrator was legally fired when a grant funding her pay ended, despite direct evidence of age discrimination. Prater v. Joliet Junior College, 2003 WL 22251395 (N.D. Ill. Oct. 2).

Plaintiff Gwendolyn Prater worked in outreach recruitment at Joliet Junior College, a position funded by an annual grant of $50,000 from the Illinois Board of Education. In 1998, Prater's supervisor informed her that there might not be sufficient funding for her job the following year, and that she would have to begin working with nonpublic aid clients. Prater's response was that she did not want to do so without additional compensation. In 1999, the grant was reduced, and Prater was told again that she had to work with the nonpublic aid clients. Prater refused to do so, and replied that the supervisor should “do what she has to do.” Prater was terminated, and brought suit under the ADEA.

The court initially denied summary judgment to Joliet Junior College, but later reconsidered and granted summary judgment. It held that even though Prater alleged direct evidence of age discrimination (ie, her supervisor allegedly said, “I'm getting rid of older people so that I can hire in younger people. I can mold them the way I want and pay them less”), there were two motives sufficient to account for her termination. The fact that one of the motives was illegal and improper did not support a remedy given that Joliet Junior College would have made the same decision on the legitimate ground alone. Prater's statement to her supervisor showed her understanding that her job was in jeopardy if she did not assume different responsibilities. This established a legitimate ground for Prater's termination, and the Court held she would have been fired by Joliet Junior College on those grounds irrespective of age discrimination.

Five Months Too Long to Support Claim for Retaliation

The Tenth Circuit has held that a 5-month delay between filing a charge with the EEOC and a termination is too long to support a claim of retaliation. Guevara v. Best Western Stevens Inn, Inc., 2003 WL 22407428 (10th Cir. Oct. 22).

Plaintiff Jane Guevara's position was as an evening head waitress. In 2000, she filed a charge with the EEOC asserting age and national origin discrimination dating back to 1974. Four months later, Guevara was placed on administrative leave with pay, and she was fired a month later. The employer claimed that she had violated instructions and created problems with other employees.

Guevara brought suit in federal court under Title VII and the ADEA. The district court granted summary judgment to the employer, determining that all of her claims were untimely except for her retaliation claim; however, the district court held that she failed to establish a prima facie case of retaliation.

On appeal, the Tenth Circuit affirmed. It held that no causal connection existed between Guevara's filing an EEOC charge and her ultimate termination, given the time elapsed between the two events (ie, 5 months).

Remand for Consideration of State Choice of Law Principles Required

The issue of whether New York law should be applied to a California-based employee's discrimination claim, as called for by the employment agreement between the parties, has been remanded by the Second Circuit for consideration of New York's choice of law principles. Cap Gemini Ernst & Young v. Nackel, 2003 WL 22331670 (2d Cir. Oct. 14).

Plaintiff John Nackel and Cap Gemini Ernst & Young (Cap Gemini) signed an employment agreement that required any discrimination claims to be settled by arbitration, which was to be governed by and construed in accordance with New York law. Nackel filed a lawsuit in a California court under the FEHA, claiming that he had been dismissed for protesting the discriminatory conduct of an executive. Cap Gemini responded by commencing an arbitration, and filing a lawsuit in federal district court in New York seeking to compel arbitration. The New York court granted Cap Gemini's motion to compel arbitration and stayed Nackel from pursuing the California litigation.

On appeal, Nackel argued that he worked and lived in California, that he was asserting claims under California law, and that the events giving rise to his claim occurred in California. He also claimed that California law would invalidate the arbitration agreement. The Second Circuit remanded the case to the federal district court, directing it to answer two questions: 1) did the parties enter into a contractually valid arbitration agreement, and 2) if so, does the parties' dispute fall within the scope of the agreement? The court noted that the choice of law provisions in the agreement were not the end of the matter, because New York law permits a court to disregard the choice when the most significant contacts with the matter in dispute occur in another state.

Collective Action Needs Plaintiff with Actual Claim to Survive

Ruling on an issue of first impression, the Eleventh Circuit has held that a named plaintiff in a Fair Labor Standards Act (FLSA) class action cannot remain in the action and notify potential class members of the lawsuit once his own claims have been settled. Grant v. Maxim Healthcare Servs. Inc., (11th Cir. Oct. 20).

Ross Basil, a nurse, and three of his co-workers at Maxim Healthcare Services (Maxim) filed an FLSA action on behalf of both themselves and other similarly situated employees seeking unpaid back wages and overtime compensation, as well as attorneys' fees, for Maxim's failure to pay overtime. Specifically, the nurses claimed that Maxim had violated Section 207 of the FLSA by failing to pay them for time worked in excess of 40 hours per week at a rate of one and one-half times the regular rate. The plaintiffs also alleged they were not paid the proper minimum rate and experience retaliation after complaining. Although the action was initially pursued as a class claim, three of the four plaintiffs voluntarily dismissed their claims. Maxim also paid Basil claimed unpaid wages and overtime pay.

The U.S. District Court for the Southern District of Florida resolved most of Basil's claims and declined to allow him to notify potential opt-in plaintiffs because, the court found, there was no evidence that other plaintiffs sought to join the lawsuit. Maxim and Basil then settled the remaining claims. However, Basil asked that he be allowed to remain in the case in order to appeal the district court's ruling with regard to notifying potential opt-in plaintiffs.

On appeal, the Eleventh Circuit affirmed the district court's ruling. In FLSA collective actions, the court explained, there is no role for a “private attorney general,” that is, an individual filing a suit to vindicate a public legal interest rather than his or her own. Unlike in a traditional Rule 23 class action, in an FLSA class action a claimant should not be permitted to generate liability in favor of uninvolved class members. In other words, allowing Basil to press on with the collective action despite the lack of his own personal economic interest in the suit would permit a person who could obtain no economic gain to pursue an action where no other class members might exist. “The existence of a class under Rule 23,” the court explained further, “does not depend in theory on the participation of other class members … Irrespective of whether other class members take any or no role in the action, they are bound by the judgment, whether favorable or unfavorable, unless they affirmatively 'opt out' of the suit.” The Rule 23 opt-out approach is markedly different from an FLSA collective action, which proceeds by way of “opt-in” provisions limiting the aggrieved class to those seeking a decision on liability, and eliminating those only seeking judgment on damages.

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