Thursday, February 9, 2012

Mixed Motive Analysis Applies to Massachusetts State Age Discrimination Claims

In yet another case that underscores the admonition that federal anti-discrimination jurisprudence will not necessarily be transported to the state courts, the First Circuit, on February 7, 2012, in Diaz v. Jiten Hotel Mgmt., Inc., Nos. 11-1505, 11-1575, 2012 U.S. App. LEXIS 2386 (1st Cir. Feb. 7, 2012) held that, even after the Supreme Court’s decision in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S. Ct. 2343 (2009), rejecting mixed-motive analysis in federal age discrimination cases in favor of a “but-for” analysis, Massachusetts, under its state anti-discrimination law, was held to continue to adhere to mixed-motive analysis.  Interestingly, the court noted that the Supreme Judicial Court of Massachusetts “frequently do[es] not follow the reasoning of Federal Appellate Decisions applying Title VII”, citing Cuddyer v. Stop & Shop Supermarket Co., 750 N.E.2d 928, 939 (Mass. 2001).  Further, the court noted that, in Wynn & Wynn, P.C. v. Mass. Comm’n Against Discrimination, 729 N.E.2d 1068 (Mass. 2002), a gender discrimination case, the Court had adopted the Price Waterhouse burden-shifting analysis, stating that “the plaintiff, armed with some strong (direct) evidence of discriminatory bias, demonstrates that at least one factor motivating the employer’s decision is illegitimate.”  729 N.E.2d at 1078.  And, after the Supreme Court’s Gross decision, the Massachusetts Supreme Judicial Court revisited the mixed-motive issue in Haddad v. Wal-Mart Stores, Inc., 914 N.E.2d 59 (Mass. 2009), once again, a gender discrimination case, and affirmed the lower court’s use of a mixed-motive instruction.  Finally, the First Circuit noted that, unlike in the federal scheme, where the Gross decision emanated from an analysis of the ADEA and mixed-motive analysis emanates from Title VII, Massachusetts has but one anti-discrimination law, Chapter 151B, which prohibits both age and gender discrimination.  Thus, the Court was comfortable in predicting that the holdings in Wynn & Wynn, and Haddad, gender discrimination cases, would apply with equal force in a Chapter 151B age discrimination case like the claim asserted in Diaz.  

Of further interest is the First Circuit’s recognition that Massachusetts, unlike the federal courts, continues to embrace the continuing violation doctrine, where a plaintiff alleges a pattern of discriminatory conduct.  See Pelletier v. Town of Somerset, 939 N.E.2d 717, 731 (Mass. 2010).  

Again, the Diaz decision underscores the fact that plaintiffs will continue to argue for different interpretations of state anti-discrimination statutes, where the federal jurisprudence is not favorable to plaintiffs. 
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Even Though Not Yet Eligible for FMLA Leave, Employee Is Protected

In Pereda v. Brookdale Senior Living Cmtys., Inc., No. 10-14723, 2012 U.S. App. LEXIS 492, (11th Cir. Jan. 10, 2012), the Court was confronted with the question left open by Walker v. Elmore Cnty., Bd. of Educ., 379 F.3d 1249, 1253 (11th Cir. 2004), that is whether the FMLA protects a pre-eligibility request for post-eligibility maternity leave.  The 11th Circuit, Judge Fay writing for the panel, held that the pregnant employee in such circumstances pled both a FMLA interference and a FMLA retaliation claim.  

First, with respect to Pereda’s FMLA interference claim, the Court held that “because the statute contemplates notice of leave in advance of becoming eligible, i.e., giving birth to a child, the FMLA regulatory scheme must necessarily protect pre-eligible employees, such as Pereda, who put their employers on notice of a post-eligibility leave request.”  Pereda, 2012 U.S. App. LEXIS 492 at *14.  Further, the Court stated: “an expectant mother who is along in her pregnancy cannot hide that, in due time, she will give birth to a child.  By the very nature of the fact that a full-term pregnancy takes nine months to complete, not affording pre-eligible expecting parents any protection would leave them exposed to adverse action by the employer.”  Id. at *14-*15.  The Court thus concluded that a pre-eligible employee has a cause of action if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.  

Finally, with respect to Pereda’s FMLA retaliation claim, the Court held that she could also state a cause of action for FMLA retaliation, holding “that a pre-eligible request for post-eligible leave is protected activity because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave.”  See also Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001) ("The right to actually take [FMLA] leave . . . includes the right to declare an intention to take such leave in the future."); Beffert v. Penn. Dept. of Public Welfare, 2005 U.S. Dist. LEXIS 6681 (E.D. Pa. April 18, 2005) (holding a pregnant employee who provided notice of post-eligible FMLA leave could bring a retaliation claim even though she was not eligible at the time of her request); Reynolds v. Inter-Indust. Conf. on Auto Collision Repair, 594 F. Supp. 2d 925, 928 (finding an employer "has no legitimate interest in being able to terminate an eleventh month-employee for simply requesting foreseeable leave for which he is eligible" especially when the same decision would be prohibited a month later); Walker v. Elmore Cnty. Bd. of Educ., 223 F. Supp. 2d 1255, 1260 (finding it "absurd" to interpret the FMLA to allow a employer to retaliate against an employee who gives pre-eligible notice of post-eligible leave).  The Court concluded by stating: “Our decision today simply means that pre-eligible discussion of post-eligible FMLA leave is protected activity under the FMLA.”

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Enhancement of Fee Awards in New Jersey

After the Supreme Court’s decision in Purdue v. Kenny A., __ U.S. __, 130 S. Ct. 1662, 176 L. Ed. 2d 494 (2010), one would have thought that enhancements of the lodestar would come almost to a screeching halt and only be rarely awarded in fee-shifting litigation.  Not so in New Jersey under state law.  

On January 25, 2012, the New Jersey Supreme Court handed down its decision in two consolidated appeals.  Walker v. Guiffre, Nos. A-72, A-100, Sept. Term 2010, 066969, 067267, 2012 N.J. LEXIS 15 (Jan. 25, 2012).  Walker was consolidated on appeal from two lower court decisions, Walker v. Giuffre, 2 A.3d 1165 (N.J. Super. Ct. App. Div. 2010) and Humphries v. Powder Mill Shopping Plaza, No. A-6083-08T1, 2010 N.J. Super. Unpub. LEXIS 2664 (N.J. Super. Ct. App. Div. Oct. 5, 2010).

 In Walker, a consumer protection case, the trial court awarded walker $654.50 in total damages, and a lodestar fee of $68,450.  The trial court then enhanced the lodestar fee by 45% for a total fee award of $99,252.50.  The intermediate New Jersey Appeals Court reversed the 45% contingency enhancement, relying upon Purdue.  2 A.3d 1165 (N.J. Super. Ct. App. Div. 2010).

In Humphries, a New Jersey Law Against Discrimination case, the parties entered into a partial settlement agreement which required modifications to the shopping center’s parking area and awarded the plaintiff $2,500 in damages.  The Plaintiff, as a “prevailing party”, then sought an award of legal fees.  The trial court awarded a lodestar fee with a 20% contingency enhancement, rejecting plaintiff’s request for a 50% contingency enhancement.  Again, the intermediate Appeals Court reversed, holding that Purdue permits contingency enhancements only in “rare and exceptional circumstances.”  Humphries, 2010 N.J. Super. Unpub. LEXIS 2664 at *25.  

The New Jersey Supreme Court, in a unanimous decision, rejected the intermediate appellate court’s reliance on Purdue, opining that its 1995 decision in Rendine v. Pantzer, 661 A.2d 1202 (N.J. 1995) had rejected the 1992 decision of the United States Supreme Court in City of Burlington v. Dague, 505 U.S. 557 (1992), in which the Court had addressed the propriety of contingency enhancements.  The New Jersey Supreme Court further explained that the U.S. Supreme Court’s decision in Purdue was merely a reaffirmation of Dague, and “the opinion made it abundantly clear that, for federal fee-shifting purposes, this issue had been settled in Dague…Simply put, the Court’s decision in Purdue reiterates the framework that applies to fee awards in federal courts arising from federal statutes and does not represent any new approach on the subject.”  In short, New Jersey considered and rejected the “rare circumstance” rule respecting contingency fee enhancements in Rendine, and merely reaffirmed that in Walker.  

The New Jersey Supreme Court went on to state that it “fixed the ordinary range for a contingency enhancement as being between five and fifty percent and we also identified the typical range as being between twenty and thirty-five percent of the lodestar.”  The New Jersey Supreme Court’s “rare and exceptional case” rule is a 100% enhancement.  Further, it did preclude an award of a contingency enhancement in excess of 100%.  

The Court sent Walker back to the trial court for further proceedings, and then proceeded to reverse the trial court’s twenty-percent fee-enhancement, and instead found that “the requested fifty percent was eminently reasonable…”

The decision in the consolidated cases will undoubtedly be a catalyst to plaintiff’s counsel arguing that the rationale of Rendine and Walker ought to be applied to their state anti-discrimination statute.

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Friday, February 3, 2012

Home Alone, Telecommuting, and Man’s Best Friend

            For years, employers have fretted over a host of issues surrounding the increased desire on the part of some employees to telecommute and now pressure from government and environmental groups to ramp up with an extensive telecommute program.  Over and above obvious issues like time and attendance, management counsel have raised concerns about worker compensation claims.  For example, last year a New Jersey court awarded worker compensation survivor benefits to an AT&T manager’s family who had died of a blood clot attributed to sitting for long periods of time at her home work computer.  Renner v. AT&T, No. A-2393-10T3, 2011 N.J. Super. Unpub. LEXIS 1668 (N.J. Super. Ct. App. Div. June 27, 2011).

            Shortly prior to this decision, an Oregon appellate court awarded worker compensation benefits to a home-based worker who tripped over her small dog as she walked from her home to her nearby garage to retrieve some work-related supplies.  Initially, the State workers’ compensation board denied the claim on the ground that the injury did not arise out of her employment because (1) she was not exposed to the risk by virtue of her employment, but encountered the same risk anytime she stepped outside the door of her home and (2) because the risk arose from her home environment, which was outside of the employer’s control.  The appellate court found that the employer’s lack of control over the conditions of the workers premises was not material.  While the employer might not have had control over the worker’s dog, it had control over whether the worker worked away from the employer’s premises.  The moral of the story being that once the home premises become the work premises, the hazards of the home premises encountered in connection with the performance of work become also hazards of the employment. In re Sandberg, 243 Ore. App. 342, 260 P.3d 495 (Or. Ct. App. June 1, 2011).

            The trend toward telecommuting seems likely to continue for both environmental and efficiency reasons.  See Max Chafkin, “Telecommuting by the Numbers”, Inc. Online (April 1, 2010) (cite online at, accessed Feb. 3, 2012) (describing the substantial efficiency and environmental benefits of telecommuting); Agence-France Presse, “As Fuel Surges, Telecommuting Grows in U.S.” (June 1, 2008) (cite online at, accessed Feb. 3, 2012) (noting that some 48% of employers offer telework at least once per week and that 40% of IBM’s global workforce have an option to work from a remote location).  So, if the Oregon case represents the future of worker compensation law for the increasing numbers of employees working either occasionally or full-time from home, how should the Company’s loss-prevention department address these issues proactively?  Should man’s best friend be banned from the home workplace?  Should loss-prevention personnel conduct an initial and periodic audit of home work premises for hazards?  What effect will the increased percentage of an employer’s work-force telecommuting have on insurance premiums?  See The Hartford Loss Control Department, “Loss Control TIPS”, TIPS S 520.375 (2002) (online at, accessed Feb. 3, 2012) (addressing potential concerns of telecommuting, including planning for potential workers compensation issues).

            The times, they are a-changin’.

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