Wednesday Federal Employment Law Update-Multiple Theories of Discrimination

Welcome back for your Wednesday Federal Employment Law Update!  One of my favorite parts of doing the blog, particularly the last few weeks since I have added some visuals, is to find an appropriate picture for the post.   Google Image searches can be surprisingly funny.  Today we are going to discuss what appears from the opinion to be an extremely frivolous case.  So, I go into Google Image, type in “frivolous lawsuit,” and voila!  Page one, a fresh cup of McDonald’s coffee!!  I suppose we will be talking about that case decades from now!

Today we look at Tusing v. Des Moines Independent Community School District, 2011 WL 1364477 (8th Cir. April 12, 2011), a case in which the 8th Circuit Court of Appeal affirmed summary judgment for defendant in a case of alleged age and disability discrimination filed by a school district employee. 

Similarly to Title VII, which protects workers from discrimination on the basis of race, national origin, gender or religion, the ADA and ADEA protected disabled and older workers, respectively. 

In Tusing, Plaintiff was hired as an elementary school teacher at the age of 41.  After fulfilling several roles with the district over a six year period, she applied for other open positions.  Specifically, at one point she applied for a counselor position, and at another point, she applied for a “literacy leader” position, although in applying for that position, she expressed interest in a “half-time” literacy leader role and half-time counselor role.  She was not interviewed for either position because 1) she was not licensed or certified as a counselor; and 2) the district had no opening for a part-time literacy leader. 

Over the course of the year, the district hired 13 counselors, 8 of whom were under 40 (the cutoff for claims under the ADEA).  However, all were licensed or conditionally licensed.  The district also hired two literacy leaders, ages 31 and 40, but both applied for the open full-time positions. 

Persisting in her desire for a counseling position, Plaintiff was advised that she needed to complete 350 internship hours to obtain her masters in counseling.  She wished to keep her full-time teaching position while attending internship hours before work, after work, and during lunch.  After consulting with the district’s Head of Counseling, the Vice Principal of Plaintiff’s school determined that Plaintiff’s plan was not feasible.  In deposition, Plaintiff agreed.  However, she was offered a position at another school in the district that required only 80% of the time commitment that she had at her current position but with only 80% pay.  However, the additional time would allow Plaintiff to obtain her internship hours toward her masters.  She accepted the option voluntarily.

However, Plaintiff ultimately sued for age and disability discrimination based on 1) Defendant’s failure to interview  her for the counseling position; 2) Defendant’s failure to interview her for the literacy leader position; and 3) Defendant allegedly “forcing” her to take a transfer for less money.  For her disability, she claimed that she was depressed as a result of childhood abuse, and that she was discriminated against due to her depression.  However, she had no evidence of reporting her disability and no evidence of any of her co-workers being aware of it. 

Affirming the District Court’s grant of summary judgment, the 8th Circuit concluded that Defendant offered legitimate bases for not interviewing Plaintiff for the two open positions, and that Plaintiff’s admission that she voluntarily accepted the transfer eliminated her claim on that issue.  Plaintiff failed to elicit evidence of discriminatory animus on either age or disability grounds, and judgment was entered for the defendant.

This case is an example of a tactical error that I see made by my opponents over and over again — alleging discrimination on multiple unrelated grounds.  Plaintiffs and their attorneys tend to grossly underestimate the gravity of accusing someone of being a chauvinist, a racist, or someone that holds an animus against older workers or the disabled.  As someone who primarily represents employers, when I see a new Charge or Complaint that accuses my client of being two or more of these things, a big smile hits my face knowing that the case is probably frivolous.  You believe a corporation hates both women and folks with disabilities?  Or hates older workers and Japanese workers?  Doubtful.  Very doubtful.  And a funny thing happens when you are caught bringing one frivolous claim — your credibility is vanished, and even if may have one valid claim, factfinders look at your position and think, “if they are willing to bring a disingenuous claim, why should I believe a word they say?”   So please, keep bringing charges on three or four different theories of discrimination! 



THE COMMENTS ON THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE.  NOR DO THEY CREATE AN ATTORNEY-CLIENT RELATIONSHIP.  They are provided for informational purposes only.  Actual legal advice can only be provided after consultation with an attorney licensed in your jurisdiction. 
Explore posts in the same categories: Federal Employment Law Updates

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