Before getting started on the blog entry for the week, I do want to note that the Supreme Court just granted certiorari in a case, Loper Bright Enterprises v. Raimondo, asking the question of whether Chevron deference should be overruled. I read the appellate decision yesterday, the Supreme Court does not necessarily have to visit that question. They could for example say that the rulemaking was defective. They also could say that the rulemaking unambiguously exceeded the terms of the statute. That said, we do know that at least four Justices on the current court will not hesitate to get rid of Chevron deference. The appellate decision does a nice job of explaining in its application of the doctrine why you could see members of this court wanting to get rid of Chevron. As the appellate court makes clear, if a statute is ambiguous with respect to the legislative authority, it only takes a rational reason from the regulatory agency to support the regulation to grant Chevron deference. I can’t see this Court going that route. The only question remains as to how they will narrow Chevron. Will they throw it out? Doing that, would be a disaster for both sides of the aisle as it would remove a high degree of probability from legal advising (which might be an issue for Chief Justice Roberts as corporations like the certainty regulations afford). Might they adopt a Kisor approach, which we discussed here, to final regulations. The case definitely bears following, and I will undoubtedly blog on it when it comes down and perhaps blog on the oral argument as well.
Turning to the case of the day, it is Mauritz v. Lynn, here, a per curiam decision decided by the Fifth Circuit on April 27, 2023. It deals with statute of limitations, hostile work environment based upon disability, and the consequences of an employer not taking prompt action to remedy the hostile environment. As usual, the blog entry is divided into categories and they are: facts taken directly from the opinion; court’s reasoning that hostile work environment claim was timely and summary judgment should be reversed; court’s reasoning that plaintiff adequately demonstrated that the clinic failed to take prompt remediate action and summary judgment should be reversed; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.
Facts Taken Directly from the Opinion
Nena Mauritz has worked at the Clinic since 2009. From 2010 until 2019, she worked in the Clinic’s neurology department; she transferred to the endocrinology department in 2019. Nena also suffers from multiple sclerosis, and has been a patient at the Clinic since 2007. During her time working in the neurology department, Nena was harassed and discriminated against by a doctor in the department, Dr. Scott Lynn.
Beginning around 2012 or 2013, Dr. Lynn started calling Nena “Swiss-cheese brain,” referencing her disability. This comment continued throughout her employment in the neurology department, and eventually Dr. Lynn called Nena “Swiss-cheese brain” whenever she made a mistake. In spring 2015, Dr. Lynn said that Nena was “prostituting herself out” in front of two pharmaceutical representatives. Dr. Lynn told another employee to tell Nena “[f]*** you” when that employee next saw Nena.
On May 8, 2015, Nena met with Joy Yates, a Clinic administrator, about Dr. Lynn’s conduct. On May 26, 2015, Dr. Lynn remarked to Nena that Nena’s daughter would “get pregnant when she is 17 or 18 and then 1 Because Nena and her husband share the same last name, we refer to Nena Mauritz as “Nena” and Matthew Mauritz as “Matthew.” 2 Scott Lynn and the Clinic subsequently appealed the district court’s decision to decline to exercise supplemental jurisdiction over the state law claims. That appeal is not before us. Case: 22-60371 Document: 00516729857 Page: 2 Date Filed: 04/27/2023 No. 22-60371 3 [Nena would] have a baby to love,” which Nena stated was a reference to her inability to have more biological children. Following the May 26, 2015, comment, Nena met with Yates and the Clinic’s executive director, Tommy Thornton, on May 27, 2015. Nena told Thornton “about names [she] was called and things [ ] Dr. Lynn had said about [Nena’s] daughter.” Nena expressed some trepidation with Dr. Lynn “knowing anything about [her] talking with the administration,” but she asked for assistance to be transferred out of the neurology department, because she did not think that Dr. Lynn would “let her leave.” Thornton stated that Dr. Lynn would not be allowed to retaliate, and asked if Nena would be willing to stay for six to eight weeks in the neurology lab.
After being informed that Nena planned to transfer departments, Dr. Lynn created an assistant manager position within the neurology department. Clinic administration informed Nena that the new position would involve less contact with Dr. Lynn. Although Nena interviewed for four different jobs within the Clinic, she either was not offered a position or removed herself from consideration for the job. During this time, Nena felt that she was being “manipulated” by Clinic administrators, because there had been “no effort” to “assist in transferring [her] out of the [neurology] department.” In October 2015, Nena took the assistant manager position within the neurology department.
On November 3, 2015, Dr. Lynn texted Nena a picture of Nena from college, where Nena’s midriff was showing; Dr. Lynn also showed the picture to other employees within the department, “taunt[ed]” Nena with it, and refused to delete it after Nena asked him to. On other occasions, Dr. Lynn would call Nena “out in front of people when [she] was not wearing heels to work,” because “Dr. Lynn knew [Nena] had balance and gait issues from MS.” In May 2016, Dr. Lynn touched a button on Nena’s shirt and pressed on her left breast. At one point in July 2017, Dr. Lynn commented Case: 22-60371 Document: 00516729857 Page: 3 Date Filed: 04/27/2023 No. 22-60371 4 that Nena’s “high-cost drugs” were increasing the Clinic’s healthcare costs; on a different occasion, Dr. Lynn handed Nena a plastic bag and told her to put the bag over her head and to take a deep breath. The next month, after Nena got her words mixed up while talking to Dr. Lynn, he asked Nena “[W]hat’s wrong with you?” and then stated, “[N]ever mind, we all know you have something wrong with your brain.” During this time, Nena met with Yates monthly, and brought up her issues with Dr. Lynn’s behavior, although she told Yates not to directly confront Dr. Lynn. However, Nena believed that Dr. Farrell, another Clinic doctor, would speak to Dr. Lynn about his behavior, and keep Nena out of the spotlight by focusing on Dr. Lynn’s treatment of a former employee, Kristen Fischer.
On July 16, 2019, when Nena was standing in the doorway of another employee’s office, with her back to the door, Dr. Lynn pushed her. Nena was able to catch herself on a chair. When she turned to her right, she saw Dr. Lynn walking past her, putting his arms out, and saying, “I’d love to see lopsided Nena fall.” Nena told her co-worker Julia Starrett about the incident. On July 25, Kristy Gould spoke with Nena. Nena said that she was “not interested in pursuing anything because [she] had no faith in [the] administration[.]” However, in August 2019, after Starrett reported Dr. Lynn’s conduct to Clinic administration through a third-party survey, the Clinic investigated the July 16, 2019, pushing incident. The Clinic Board of Directors suspended Dr. Lynn for a week, withheld one month of his salary, required him to complete an independent, professional behavioral counseling program, and required him to participate in ongoing outpatient therapy. After furtherinvestigation, the Clinic imposed additional penalties, including moving Dr. Lynn’s practice away from the main Clinic building and requiring him to pay the costs of the investigation and any monetary settlement paid. Nena was placed on administrative leave with pay, and she interviewed for and accepted a manager position in the endocrinology department. After the Case: 22-60371 Document: 00516729857 Page: 4 Date Filed: 04/27/2023 No. 22-60371 5 July 16, 2019, pushing incident, Nena did not suffer any further harassment
Plaintiff filed a charge with the EEOC and then brought suit. The District Court granted the clinic’s motion for summary judgment as to plaintiff’s ADA and title VII claims. It also granted summary judgment on her title VII claim as well. The appellate court throws out the title VII claim as not timely, but we are just going to focus on the ADA part of the opinion in this blog entry.
Court’s Reasoning That Hostile Work Environment Claim Was Timely and Summary Judgment Should Be Reversed.
- Hostile environment claims arise from the cumulative effect of individual acts, some of which may not be actionable on their own.
- The statute of limitations cannot begin running with the first act in hostile environment claims because at that point the plaintiff has no claim. For that matter, a claim cannot expire after that first act because the full course of conduct is the actionable infringement. Thus, if an act contributing to the claims occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.
- The continuing violation doctrine applies here because plaintiff has alleged a pattern of conduct related to her disability beginning in 2012 and continuing until the July 16, 2019, pushing incident. Since the pushing incident occurred within the period for filing a claim, her hostile work environment claim is timely.
- The clinic does not point to any evidence of an intervening cause, nor does it meaningfully contests plaintiff’s version of events. Accordingly, plaintiff adequately demonstrated that the continuing violation doctrine applies to ADA hostile work environment claim.
Court’s Reasoning That Plaintiff Adequately Demonstrated That the Clinic Failed to Take Prompt Remedial Action and Summary Judgment Should Be Reversed.
- In a hostile work environment claim, the plaintiff has to show that she: 1) belonged to a protected group; 2) was subject to unwelcome harassment; 3) based on her disability; 4) which affected a term, condition, or privilege of employment; and 5) the clinic knew or should have known of the harassment and failed to take prompt remedial action.
- In determining whether harassment is sufficiently pervasive or severe, the court considers: 1) the frequency of the discriminatory conduct; 2) its severity; 3) whether it is physically threatening or humiliating or a mere offensive utterance; and 4) whether it unreasonably interferes with an employee’s work performance.
- A defendant can avoid liability when harassment occurred, but the defendant took prompt remedial action to protect the claimant.
- Whether an employer’s response to discriminatory conduct is sufficient, necessarily depends on the particular facts of the case, the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.
- An employer may be liable despite having taken remedial steps if the plaintiff can establish that the employer’s response was not reasonably calculated to halt their harassment.
- In order to demonstrate that an employer has failed to take prompt remedial action, the employee must first show that he or she or they took advantage of corrective opportunities provided by the employer.
- If an employee believes that bringing a subsequent harassment complaint would be futile, or it becomes objectively obvious that the employer had no real intention of stopping harassment, the harassed employee is not obligated to go through the wasted motion of reporting the harassment.
- The evidence is not so weak or tenuous to say that the clinic took prompt remedial action to protect the plaintiff before the July pushing incident. Accordingly, summary judgment was not warranted in the clinic’s favor.
- A factual dispute exists over whether the plaintiff directed the administration to not act, or if she merely wanted her name to be left out of the conversation.
- The district court did not view the facts and inferences in the light most favorable to the plaintiff because she stated on several occasions, including in evidence submitted by the clinic itself, that she was primarily concerned about the harasser knowing anything about her talking with the administration. She had also endorsed a plan to have the harasser confronted about his behavior without relating the complaints back to her. Finally, plaintiff’s reluctance to explicitly pursue corrective opportunities may have been due to a justified fear of retaliation by the harasser.
- In light of the facts presented (see §I of this blog entry), it is quite reasonable to infer that plaintiff believed that bringing a direct complaint against the harasser would be futile, because the clinic had no real intention of stopping the harassment. In a footnote, the court also notes that it is possible that plaintiff’s complaint never even made it up the administrative ladder of the clinic.
- In a footnote, the court notes that they agree with the district court that the clinic took prompt remedial action after the pushing incident. The court further noted that the plaintiff did not meaningfully contests that issue on appeal.
- In a footnote, the court remanded to the district court to determine whether the conduct was sufficiently severe or pervasive.
- The facts in this case are really egregious. It is extremely hard for me to believe that a jury in 2023 would not believe that the conduct described in section I of this blog entry was not sufficiently severe or pervasive to constitute harassment based upon a disability. I will be flabbergasted if this case doesn’t settle.
- I read several labor and employment management side blogs. Every one of them will tell you that when faced with a harassment situation, it must be promptly investigated and remediated. The clinic simply did not do that here and likely will literally pay the price for that.
- Hostile work environment based upon disability is a viable claim.
- Federal courts absolutely hate the continuing violation doctrine, but it makes perfect sense that in a hostile work environment claim, the continuing violation doctrine has to be the doctrine for figuring out the statute of limitations.
- Not having a plan to promptly investigate claims of harassment, sets up the employer for the employee successfully claiming that subsequent action on their part would be futile. It also creates a lousy environment for other employees.
- On a summary judgment motion, courts need to look at the facts and inferences in the light most favorable to the plaintiff. Defense lawyers would probably disagree with me on this (I am not a plaintiff site lawyer), but I too often see courts simply not do this. It is great to see a court calling out a lower court by explicitly stating that facts and inferences when it comes to summary judgment motions must be construed in the light most favorable to the plaintiff.
- Have policies and procedures in place for allowing employees to report harassment without fear of repercussions, and make sure you promptly investigate those claims.