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Whittington filed suit in the United States District Court for the Northern District of Oklahoma, alleging his employer's violation of the ADEA. During both the discovery process and the trial itself, Nordam's purported reasons for including Whittington in the RIF remained unclear, ranging from the assertion that Whittington's supervisory position was being eliminated entirely to allegations that he had performance issues. The first trial resulted in a hung jury. The retrial resulted in a verdict in favor of Whittington. Nordam appealed, arguing, among other things, that given the fact that Overbey, an employee only 5 years Whittington's junior and the only other employee similarly situated to Whittington, was retained during the RIF, Whittington could not establish a prima facie case of age discrimination. Nordam urged the court to establish a bright-line rule finding that a 5-year age difference is insignificant as a matter of law in age-discrimination cases.

Dismissing Nordam's argument and upholding the district court's determination, the Tenth Circuit held that “a definitive 5-year rule is unjustified,” and that a jury should be left to evaluate and weigh the evidence, including circumstantial evidence, as to the age of employees included and not included in an RIF, as a factual matter. In so finding, the court pointed to two flaws in Nordam's argument. First, the Tenth Circuit found that there were other supervisory employees considered for termination during the RIF who could be seen as similarly situated to Nordam, and that “[i]t is not contestable that several of them would be considered significantly younger than Mr. Whittington.” Second, the court found that even if Overbey was considered the only similarly situated employee to whom to compare Whittington, the 5-year age difference should not be dispositive. While acknowledging that “the extent of the age difference between comparable employees is obviously relevant to the ultimate question of age discrimination,” the Tenth Circuit found that this fact “should be but one factor weighed by the jury.” Furthermore, the court stated that it was “not convinced that all 5-year age differences are the same.” For example, “[t]he replacement of a 45-year-old by a 40-year-old would be less suspicious than the replacement of a 62-year-old by a 57-year-old.” Likewise, acknowledging that there are other circuits which establish a direct-evidence requirement when the age-difference is less than 5 years, the Tenth Circuit declined to follow them and maintained that “[t]he authorities are legion that circumstantial evidence can be every bit as compelling as direct evidence.”

Ninth Circuit Finds Former Em-ployee's FLSA and FMLA Claims Barred by Res Judicata Based on Prior Racial Discrimination Lawsuit

The Ninth Circuit has held that a former employee who pursued a Title VII racial discrimination action against his former employer was barred from asserting Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) claims against the same employer by the doctrine of res judicata. Mpoyo v. Litton Electro-Optical Systems, 2005 WL 3299816 (9th Cir., Dec. 5).

Kolela Mpoyo initially filed claims of racial discrimination and retaliation in violation of Title VII against his former employer, Litton Electro-Optical Systems (Litton) in the United States District Court for the District of Arizona. After the completion of discovery and expert witness disclosures and the submission of briefs on summary judgment motions, a full 2 years later, Mpoyo sought leave to amend his original complaint to include FMLA and FLSA claims. After the district court and this court denied leave to amend and granted summary judgment in favor of Litton, Mpoyo filed a new action in district court alleging the same FMLA and FLSA claims that he had attempted to add to his initial Title VII action. The district court dismissed these claims based on res judicata, and Mpoyo appealed.

In holding that Mpoyo's FMLA and FLSA claims were barred by the doctrine of res judicata, the Ninth Circuit began by setting forth the following “well-established res judicata test”: “Res judicata applies when 'the earlier suit … 1) involved the same 'claim' or cause of action as the later suit; 2) reached a final judgment on the merits; and 3) involved identical parties or privies.'” Under the first res judicata factor, courts look to four criteria: “1) whether the two suits arise out of the same transactional nucleus of facts; 2) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; 3) whether the two suits involve infringement of the same right; and 4) whether substantially the same evidence is presented in the two actions.” In evaluating the first criterion, the Ninth Circuit found that “[b]ecause both sets of Mpoyo's claims arise from Litton's conduct while Mpoyo was an employee and specifically from the events leading to his termination, his claims relate to the same set of facts.” Likewise, the court found that “the Title VII, FLSA, and FMLA claims form a convenient trial unit that discloses a cohesive narrative of an employee-employer relationship and a controversial termination.” In looking to the other three criteria, the court acknowledged that the argument for res judicata was not as clear-cut. Under the second and third criteria, the court found that while the two suits involved the same overall claims and rights, the three different statutes on which Mpoyo based his claims, Title VII, the FLSA, and the FMLA, “arguably address different rights and therefore criteria two and three are not conclusive.” Likewise, under the fourth criterion, while there was certain evidential overlap between the two suits, the Ninth Circuit found that because of the way Mpoyo would need to establish his prima facie case under each of the statutes, “[o]ther evidence supporting the two actions would likely be distinct.” However, reasserting that the two actions clearly shared a common nucleus of operative fact,” the court “held the common nucleus criterion to be outcome determinative under the first res judicata element.”

Turning to the other res judicata elements, the Ninth Circuit held that even though two of Mpoyo's several claims in the Title VII suit were dismissed without prejudice for failure to exhaust his administrative remedies, because those claims arose out of the same transaction as the remainder of the claims that were dismissed on summary judgment, and because a dismissal on summary judgment “is considered a decision on the merits for res judicata purposes,” the second element was satisfied. Likewise, noting that the plaintiff and defendant were identical in both actions, the court held that the third element of the res judicata test, requiring identical parties or privies, was satisfied as well.

State University's Policy Granting Paid Disability Leave to Biological Mothers Does Not Discriminate Against Biological Fathers

The Eighth Circuit has held that a state university's parental leave policy, allowing new biological mothers and adoptive parents of both genders a 6-week period of paid temporary disability leave charged against accumulated sick leave, does not discriminate against biological fathers in violation of equal protection. Johnson v. University of Iowa, 2005 WL 3436596 (8th Cir., Dec. 15).

David Johnson, then a full-time employee of the Office of the Registrar at defendant University of Iowa (the University), filed suit against his employer alleging that the University's Parental Leave Policy violated both the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, the Equal Protection Clause of the Iowa Constitution, Title VII of the Civil Rights Act of 1964, and the Iowa Civil Rights Act.

Tenth Circuit Finds 5-Year Age Difference Not Insignificant As a Matter of Law in Age Discrimination Cases

The Tenth Circuit has held that for purposes of proving a claim under the Age Discrimination in Employment Act (ADEA), an age difference of 5 years or less between the terminated employee and his or her replacement does not bar a finding of age discrimination as a matter of law. Whittington v. The Nordam Group , Inc. , 429 F.3d 986 (10th Cir., Nov. 29).

Plaintiff Milton Whittington, Sr., a former supervisor in Nordam Group Inc., an FAA-certified repair and manufacturing station, was terminated as part of a reduction-in-force (RIF) brought to bear by a severe downturn in airline industry business following 9/11. After determining that business conditions mandated an RIF, Gregg Miner, the General Manager of the Transparency Division, the division for which Whittington worked, asked his management team to determine criteria for selecting 15 to 20 employees to be terminated in the RIF. The team developed a list of 15 or 16 individuals, and 17, including Whittington, were ultimately selected. Whittington was the only supervisor terminated in the RIF. In the prior 8 years, only two supervisors had been terminated, both for reasons related to their competency at their jobs. Another supervisor in the Transparency Division, 57-year old Herb Overbey, was not terminated during the RIF. Whittington, at 62- years old, was the oldest employee fired in the RIF.

Whittington filed suit in the United States District Court for the Northern District of Oklahoma, alleging his employer's violation of the ADEA. During both the discovery process and the trial itself, Nordam's purported reasons for including Whittington in the RIF remained unclear, ranging from the assertion that Whittington's supervisory position was being eliminated entirely to allegations that he had performance issues. The first trial resulted in a hung jury. The retrial resulted in a verdict in favor of Whittington. Nordam appealed, arguing, among other things, that given the fact that Overbey, an employee only 5 years Whittington's junior and the only other employee similarly situated to Whittington, was retained during the RIF, Whittington could not establish a prima facie case of age discrimination. Nordam urged the court to establish a bright-line rule finding that a 5-year age difference is insignificant as a matter of law in age-discrimination cases.

Dismissing Nordam's argument and upholding the district court's determination, the Tenth Circuit held that “a definitive 5-year rule is unjustified,” and that a jury should be left to evaluate and weigh the evidence, including circumstantial evidence, as to the age of employees included and not included in an RIF, as a factual matter. In so finding, the court pointed to two flaws in Nordam's argument. First, the Tenth Circuit found that there were other supervisory employees considered for termination during the RIF who could be seen as similarly situated to Nordam, and that “[i]t is not contestable that several of them would be considered significantly younger than Mr. Whittington.” Second, the court found that even if Overbey was considered the only similarly situated employee to whom to compare Whittington, the 5-year age difference should not be dispositive. While acknowledging that “the extent of the age difference between comparable employees is obviously relevant to the ultimate question of age discrimination,” the Tenth Circuit found that this fact “should be but one factor weighed by the jury.” Furthermore, the court stated that it was “not convinced that all 5-year age differences are the same.” For example, “[t]he replacement of a 45-year-old by a 40-year-old would be less suspicious than the replacement of a 62-year-old by a 57-year-old.” Likewise, acknowledging that there are other circuits which establish a direct-evidence requirement when the age-difference is less than 5 years, the Tenth Circuit declined to follow them and maintained that “[t]he authorities are legion that circumstantial evidence can be every bit as compelling as direct evidence.”

Ninth Circuit Finds Former Em-ployee's FLSA and FMLA Claims Barred by Res Judicata Based on Prior Racial Discrimination Lawsuit

The Ninth Circuit has held that a former employee who pursued a Title VII racial discrimination action against his former employer was barred from asserting Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) claims against the same employer by the doctrine of res judicata. Mpoyo v. Litton Electro-Optical Systems, 2005 WL 3299816 (9th Cir., Dec. 5).

Kolela Mpoyo initially filed claims of racial discrimination and retaliation in violation of Title VII against his former employer, Litton Electro-Optical Systems (Litton) in the United States District Court for the District of Arizona. After the completion of discovery and expert witness disclosures and the submission of briefs on summary judgment motions, a full 2 years later, Mpoyo sought leave to amend his original complaint to include FMLA and FLSA claims. After the district court and this court denied leave to amend and granted summary judgment in favor of Litton, Mpoyo filed a new action in district court alleging the same FMLA and FLSA claims that he had attempted to add to his initial Title VII action. The district court dismissed these claims based on res judicata, and Mpoyo appealed.

In holding that Mpoyo's FMLA and FLSA claims were barred by the doctrine of res judicata, the Ninth Circuit began by setting forth the following “well-established res judicata test”: “Res judicata applies when 'the earlier suit … 1) involved the same 'claim' or cause of action as the later suit; 2) reached a final judgment on the merits; and 3) involved identical parties or privies.'” Under the first res judicata factor, courts look to four criteria: “1) whether the two suits arise out of the same transactional nucleus of facts; 2) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; 3) whether the two suits involve infringement of the same right; and 4) whether substantially the same evidence is presented in the two actions.” In evaluating the first criterion, the Ninth Circuit found that “[b]ecause both sets of Mpoyo's claims arise from Litton's conduct while Mpoyo was an employee and specifically from the events leading to his termination, his claims relate to the same set of facts.” Likewise, the court found that “the Title VII, FLSA, and FMLA claims form a convenient trial unit that discloses a cohesive narrative of an employee-employer relationship and a controversial termination.” In looking to the other three criteria, the court acknowledged that the argument for res judicata was not as clear-cut. Under the second and third criteria, the court found that while the two suits involved the same overall claims and rights, the three different statutes on which Mpoyo based his claims, Title VII, the FLSA, and the FMLA, “arguably address different rights and therefore criteria two and three are not conclusive.” Likewise, under the fourth criterion, while there was certain evidential overlap between the two suits, the Ninth Circuit found that because of the way Mpoyo would need to establish his prima facie case under each of the statutes, “[o]ther evidence supporting the two actions would likely be distinct.” However, reasserting that the two actions clearly shared a common nucleus of operative fact,” the court “held the common nucleus criterion to be outcome determinative under the first res judicata element.”

Turning to the other res judicata elements, the Ninth Circuit held that even though two of Mpoyo's several claims in the Title VII suit were dismissed without prejudice for failure to exhaust his administrative remedies, because those claims arose out of the same transaction as the remainder of the claims that were dismissed on summary judgment, and because a dismissal on summary judgment “is considered a decision on the merits for res judicata purposes,” the second element was satisfied. Likewise, noting that the plaintiff and defendant were identical in both actions, the court held that the third element of the res judicata test, requiring identical parties or privies, was satisfied as well.

State University's Policy Granting Paid Disability Leave to Biological Mothers Does Not Discriminate Against Biological Fathers

The Eighth Circuit has held that a state university's parental leave policy, allowing new biological mothers and adoptive parents of both genders a 6-week period of paid temporary disability leave charged against accumulated sick leave, does not discriminate against biological fathers in violation of equal protection. Johnson v. University of Iowa, 2005 WL 3436596 (8th Cir., Dec. 15).

David Johnson, then a full-time employee of the Office of the Registrar at defendant University of Iowa (the University), filed suit against his employer alleging that the University's Parental Leave Policy violated both the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, the Equal Protection Clause of the Iowa Constitution, Title VII of the Civil Rights Act of 1964, and the Iowa Civil Rights Act.