Retailer
 

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The Express Lane

August 10, 2007

By Toby Dykes
and Tamula Yelling
Birmingham, AL

Retailer’s Recap

Increase in Minimum Wage. President Bush signed into law a phased-in increase in the federal minimum wage. The first increase took effect July 24. Click here for the full story.

Donnybrook Results From Supreme Court Ledbetter Decision. In Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court held that the statute of limitations on a discrimination claim under Title VII ran from the date that the discriminatory decision was made, not from every date on which the plaintiff received a smaller paycheck because of the decision. Click here for the full story about the Supreme Court decision. As of the date of this publication, the U.S. House of Representatives has passed a “Ledbetter” bill that would legislatively overrule the Supreme Court’s decision and would apply not only to Title VII but also to the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act. Sen. Edward M. Kennedy, D-Mass., has introduced a similar measure in the Senate. Retailers are encouraged to contact their Senators and oppose Sen. Kennedy’s bill. Meanwhile, Goodyear is seeking to collect court costs from the Plaintiff in the amount of $3,200.

Subway Franchise Hit for Punitive Damages in ADA Case. The EEOC recently won a verdict against a Dallas-area Subway franchise for discriminating against a manager with a hearing impairment. The EEOC alleged that the manager was taunted about her impairment by the franchise owner and another manager, and was ultimately forced to resign. The jury awarded her back wages of $66,500, plus $100,000 in punitive damages. This case illustrates the need for retailers to make sure that their disabled employees are treated with respect. For more on this topic, click here.

Walgreen, EEOC Reach $20MM Agreement. The drug retailer Walgreen has entered a proposed Consent Decree with the EEOC in a class action alleging race discrimination against African-American pharmacy employees and retail management employees. In EEOC v. Walgreen Co. and Tucker v. Walgreen Co., both filed in U.S. District Court in the Southern District of Illinois, the EEOC alleged that the chain discriminated with respect to promotion, compensation, and assignments. In addition to agreeing to pay $20 million, Walgreen has also agreed that it will not make work assignments based on race.

EEOC Issues “Family-Friendly” Guidelines. The EEOC has recently issued guidelines for employers seeking to deal with pregnant employees, and those with child-care and elder-care responsibilities. For more, click here.      

Judge Grants Class Status in A&P Wage Suit

A New York Supreme Court has granted class status to a group of hourly employees at the A&P supermarket chain, who allege that they were denied overtime pay and docked time when they took lunch breaks.  Specifically, the employees claim that managers were encouraged to understaff their stores, to force their employees to work off the clock without pay, and to take “meal deductions” from their paychecks in a concerted effort to lower payroll costs. The judge rejected A&P's argument that the plaintiffs did not satisfy class certification requirements, particularly the commonality and typicality prerequisites.  Instead, the judge was persuaded by the plaintiffs’ argument that A&P’s stores are run and managed in the same way and that this created a “company pandemic of uncompensated work.” The trial date has not been set, but plans are being made to notify all potential class members.

Noteworthy Numbers

SOURCE: “High End Department Stores: Their Access to and Use of Diverse Labor Markets: Technical Report,” U.S. Equal Employment Opportunity Commission.

Supreme Court to Hear Cases on Co-Worker Testimony,
What Constitutes a “Charge”

Co-Worker Testimony. The U.S. Supreme Court has agreed to determine whether an employee suing in connection with a reduction in force should have been allowed to present testimony of co-workers’ experiences.

In Sprint/United Mgmt. Co. v. Mendelsohn, the plaintiff contended that her termination violated the Age Discrimination in Employment Act. The trial court had refused to admit testimony from co-worker witnesses unless they reported to the same supervisor as the plaintiff and were discharged about the same time as the plaintiff. As a result, five witnesses who reported to different supervisors were not allowed to testify, and a jury found in favor of Sprint.

The U.S. Court of Appeals for the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) reversed, finding that the reduction in force was not about individual conduct but about a company-wide policy of which all Sprint supervisors were aware.  Moreover, because the plaintiff and her prospective witnesses were all terminated within a year as part of an on-going RIF with similar selection criteria, the appeals court found that the witnesses’ testimony should have been admitted. 

The Supreme Court decision is expected to resolve this once and for all. Courts routinely refuse the introduction of “me too” evidence at trial.  If allowed to stand, the Tenth Circuit ruling would expand the admission of this type of testimony and could require individual “mini-trials.” 

What Is a “Charge”? The Supreme Court has also agreed to consider whether submitting an intake questionnaire along with an affidavit to the EEOC is equivalent to filing a charge of discrimination. 

In Holowecki v. Federal Express Corp., another age discrimination case under the ADEA,11 plaintiffs piggy-backed onto an intake questionnaire with affidavit submitted to the EEOC by another plaintiff. The trial court dismissed the lawsuit entirely, finding among other things that the questionnaire-plus-affidavit was not a “charge” and therefore that the one plaintiff and the 11 piggy-backers had failed to satisfy their administrative prerequisites for bringing an ADEA lawsuit.

The U.S. Court of Appeals for the Second Circuit (Connecticut, New York, and Vermont) reversed, finding that the questionnaire-plus-affidavit was adequate because it (1) demonstrated the nature of the complaint; (2) described the alleged discriminatory acts; (3) was in writing; and (4) provided the contact information for the plaintiff, her employer, pertinent dates, the approximate number of employees at the work place, and indicated no other charges had been filed.  Additionally, the court determined that the forceful tone and content of the affidavit “should have alerted” the EEOC that it was meant to be a charge. Therefore, the court held, the plaintiff (and the 11 piggy-backers) should not have been penalized for the EEOC’s failure to act. 

Typically, the EEOC does not treat letters or intake questionnaires as charges. If the Supreme Court upholds the Second Circuit decision, we can expect to see an increase in “charges” leading to lawsuits as the charge-filing process becomes less formal.