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Considering Supreme Court
Nominee Neil Gorsuch’s
Record on Employment Law

On the Legal Front

Art Gutman

home

It is an honor to be writing for On the Legal Front again. I am delighted that Rich has done such outstanding work with the column, and, as expected, EEO matters continue to be of relevance to the SIOP community. During my tenure as columnist I devoted substantial space in this column to Supreme Court rulings, and the unique and varying perspectives of Supreme Court justices involved in each ruling.1 With the death of Justice Antonin Scalia in February 2016, the Court lost a stable and influential conservative judicial voice. Although we took a long and winding road to formally identify a Supreme Court nominee that will actually go through a confirmation process, Neil Gorsuch is President Trump’s candidate.

I thought it would be useful to summarize and evaluate Judge Gorsuch’s employment law record as a 10th Circuit Judge.2 In researching Judge Gorsuch’s record, I found 13 employment discrimination cases I felt warranted review. I also found some National Labor Relation (NLRA) cases, but for purposes of exposition, I will focus on the more standard employment cases (e.g., Title VII, ADA, ADEA, retaliation, etc.) that I view as more relevant to the SIOP community. By my count, nine rulings were favorable to employers and four were fully or partially favorable to employees. Sizing up a potential justice is, of course, more than a matter of wins and losses by employers and employees. The key ingredient in any case are its facts. I will briefly review the facts in each case and reach some speculative conclusions at the end of the column.

Cases Favorable to Defendants

1. Hwang v. Kansas State University (2014) [753 F.3d 1159]

This is a Rehabilitation Act case in which an associate professor claimed disability discrimination because the university refused to extend her sick leave beyond 6 months after she was diagnosed with cancer. The university contended that Hwang was unable to perform the essential functions of her job, and it was unreasonable to hold the job open for more than 6 months. Hwang’s disparate treatment argument was that similarly situated non-disabled faculty were better treated than she was, to which Gorsuch opined that she was not similarly situated to those on sabbatical because of factors such as tenure or seniority.

2. Myers v. Knight Protective Service (2014) [774 F.3d 1246] 

This was primarily an ADA case that also included a failed Title VII race claim. On the ADA claim, Myers had previously filed for Social Security Disability (SSDI), and the question in this case was whether that filing and the ADA claim were contradictory. The Supreme Court addressed the relationship between SSDI and ADA claims in Cleveland v. Policy Management Systems (1999) [526 U.S. 795] and ruled that the SSDI claim does not automatically preclude the ADA claim because the ADA has a reasonable accommodation requirement and SSDI does not. However, there is a burden on the employee to explain why the SSDI claim does not negate the ADA claim. Stated differently, a person claiming total disability has to at least facially show that there are accommodations that would permit performance of essential job functions. In this case, Gorsuch ruled that Myers failed to provide a sufficient explanation for the apparent contradiction on his written employment application and his SSDI claim regarding his physical condition. Myers had undergone a number of back and neck surgeries and on his application offered that he was not in pain and was feeling ok. This was in direct contraction to observations by his supervisors that he was in pain and was not suitable to be an armed guard, and he could not go back to work without passing a physical exam.

3. Roberts v. IBM (2013) [733 F.3d 1306] 

This is an age discrimination (ADEA) case involving termination. Roberts presented evidence from instant messages between two human resources managers mentioning his “shelf life.” Roberts presented it as direct “smoking gun” evidence of age discrimination, but IBM countered the phrase was nothing more than reference to his queue of billable work. Gorsuch ruled that Roberts failed to prove that the explanation offered was a pretext for discrimination.

4. Elwell v. Oklahoma Board of Regents (2012) [693 F.3d 1303]

The plaintiff in this case claimed failure to reasonably accommodate her disability and wrongful termination. The problem was she used Title II of the ADA, not Title I. Title I applies to employment, whereas Title II applies to services, programs, or activities of a public entity. The ruling here (as in all other courts in such cases) is failure to state a claim because the wrong statute was used. Thus, the plaintiff’s claim was decided on a technicality (albeit an important one), not on merits.

5. Almond v. Unified School District (2011) [665 F.3d 1174]

This case also involved some technicalities. Two employees that learned their jobs were being eliminated were offered demotions with pay reductions. They argued that age discrimination and not budget cuts was the cause of the demotions. This one lost on a technicality because the ADEA claim was made past the 300-day statute of limitations. The lesson here is that they should have filed the ADEA claim when notified, not later on when demoted. The plaintiffs also had an Equal Pay Act (EPA) Claim, and although this one was not time barred, Gorsuch ruled that they had never claimed unequal pay for equal work. He further noted that the plaintiffs may have been discriminated against in the transfer decision, but they were not discriminated against in compensation. Thus, one claim failed on technical grounds and the other because the EPA is only concerned with unequal pay for equal work.

6. Johnson v. Weld County, Colorado (2010) [594 F.3d 1202]

This case is a combination Title VII and ADA case that has implications for both statutes. A female passed over for the position of fiscal officer in favor of a male claimed she was denied the job because of her sex and because she had multiple sclerosis. The sex discrimination claim failed because the male candidate had stronger credentials (education, experience, etc.). The ADA claim failed because the plaintiff claimed to be highly competent, and she failed to prove her muscular sclerosis substantially limited her ability to work. In other words, she was deemed not disabled within the meaning of the ADA.

7. Hinds v. Sprint United Management (2008) [523 F.3d 1187]

This case involved a claim of age discrimination and retaliation after the plaintiff was terminated in a layoff. Hinds claimed that the managers responsible for the layoff used subjective decision making and a spreadsheet in which the ages of the employees were in hidden cells. Gorsuch ruled that even if the decision makers knew the ages of the various employees, the facts failed to support a theory of age discrimination. Gorsuch also ruled that Hinds failed to establish a prima facie case of retaliation.

8. Montes et al. v. Vail Clinic (2007) [497 F.3d 1160]

The claim in this case was Title VII hostile work environment and national origin discrimination by eight former employees. The work itself was housekeeping. Five of the plaintiffs could not establish the timeliness of their claims (beyond 300-day statute of limitations). For the remaining plaintiffs, the complaint was that additional work requirement and speak-English-only rules established a hostile working environment. The work requirement was rejected by Gorsuch on grounds that the employer was short staffed and needed additional work time from all of its employees not just those who are Hispanic. The speak-English-only rule was supported on grounds that it was narrow (not at all times) and job related.

9. Young v. Dillon Companies (2006) [468 F.3d 1243]

The most important claim in this case was that Young, a retail investigator, suffered racial discrimination in termination. This ruling was pretty simple. Young stole time by leaving work early without reducing his time. The reason given for termination was accepted by Gorsuch: that Young committed a termination-worthy offense. Young could not mount a pretext argument and lost. Other charges (inconsistency with the parties’ implied contract terms and of the doctrine of promissory estoppel) were dismissed.

Cases Favorable to Plaintiffs

1. Walton v. Powell (2016) [821 F.3d 1204]

This case involved a 1st Amendment retaliation claim against a newly elected public official who claimed qualified immunity for dismissing an employee from the prior administration. The facts are that Powell, a Democrat, won an election and Walton, a Republican, was terminated. Prior to the election, the outgoing Republican appointed Walton to a senior level civil service job that, by state law, should have protected her from termination for political reasons. The lower court denied summary judgement for the defense and Gorsuch affirmed. Walton presented evidence that political affiliation was the reason she was dismissed and, according to Gorsuch, supported that her conduct was a matter of public concern and that political affiliation was a substantial or motivating factor in her dismissal. Because Walton established her 1st Amendment rights, the claim of qualified immunity was defeated. Stated differently, although public officials have qualified immunity for discretionary acts, they come to court as ordinary citizens when the claim is employment discrimination (see Hafer v. Melo (1991) [502 U.S. 21]).

2. Barrett v. Salt Lake County (2014) [754 F.3d 864]

Although Gorsuch did not cite it, this case is like the Supreme Court ruling in Crawford v. Metro (2009) [555 U.S. 271] in which the termination of an employee for helping a coworker who testified on behalf of another employee on a harassment charge was unlawfully terminated. The circumstances in this case were analogous to those in Crawford in that Barrett also helped a coworker pursue her sexual harassment claim. Gorsuch ruled it is a “rational” inference that unlawful retaliation took place. I find it interesting that Crawford was not cited. Nevertheless, the opinion is clearly consistent with that ruling.

3. Orr v. City of Albuquerque (2008) [531 F.3d 1210]

This is a classic example of pretext. Female police officers that took maternity leave were negatively affected in terms of eligibility for early retirement. The City argued it was pursuing a uniform policy applicable to all employees. The plaintiffs claimed they were forced to use sick leave whereas other (non-pregnant) employees were permitted to use vacation for leave under the Family Medical Leave Act (FMLA) and compensatory time. This rendered the “uniform policy” defense a pretext.

4. Williams v. W.D. Sports (2007) [497 F.3d 1079]

In this case, female employees of a hockey team claimed sex discrimination and harassment. There were 30 rulings in this case, but only one of them, an important one, favored the plaintiffs. The claim was retaliation against an employee who applied for unemployment benefits. The ruling favoring the employee was based on threats by the employer to oppose her claim for the benefits. Although she had no support for her contention that benefits were withheld, Gorsuch ruled that the threat itself was sufficient to dissuade a reasonable employee from filing a Title VII claim.

Conclusion

There are probably other cases that may be worth reviewing. But, NLRA cases aside, these were the only matters involving traditional employment discrimination claims. I would be very surprised if he isn’t confirmed. What do the facts in these cases say for what to expect from Gorsuch when he ascends to the Supreme Court? To me it looks like he’s a stickler for the letter and literal interpretation of the law. In other words, he impresses me as being much like Scalia was, and how Alito and Thomas continue to be.

Given the current makeup of the court, I think it is reasonable to assume that Gorsuch will align with Alito, Thomas, and Roberts on many issues similar to how Justice Scalia did. I also think it is reasonable to assume that Justices Sotomayor, Ginsberg, Breyer, and Kagan will continue to align on many issues, once again leaving Justice Kennedy as a likely “swing vote.” Obviously the direction of the court could shift dramatically should President Trump get the opportunity to nominate another judicially conservative Justice in the event that Justice Ginsburg (who is 84), Kennedy (who is 81) or Breyer (who is 79) step down. That would seem to be a game changer. Stay tuned.

Notes

1 Examples include:
http://www.siop.org/tip/oct09/08gutman.aspx
http://www.siop.org/tip/july12/18gutman.aspx
http://www.siop.org/tip/Apr13/20_Gutman.aspx
2 Much of this article was originally written as a blog for DCI Consulting Group, and Rich felt that it was worth expanding for TIP. The original blog can be found here: http://dciconsult.com/judge-neil-gorsuchs-record-employment-law-10th-circuit-court-judge/.

Gorsuch Cases Cited

Almond v. Unified School District (2011) [665 F.3d 1174]
Barrett v. Salt Lake County (2014) [754 F.3d 864]
Elwell v. Oklahoma Board of Regents (2012) [693 F.3d 1303]
Hinds v. Sprint United Management (2008) [523 F.3d 1187]
Hwang v. Kansas State University (2014) [753 F.3d 1159]
Johnson v. Weld County, Colorado (2010) [554 F.3d 1202]
Montes et al v. Vail Clinic (2007) [497 F.3d 1160]
Myers v. Knight Protective Service (2014) [774 F.3d 1246]
Orr v. City of Albuquerque (2008) [531 F.3d 1210]
Roberts v. IBM (2013) [733 F.3d 1306]
Walton v. Powell (2016) [821 F.3d 1204]
Williams v. W.D. Sports (2007) [497 F.3d 1079]
Young v. Dillon Companies (2006) [468 F.3d 1243]

Other Cases Cited

Cleveland v. Policy Management Systems (1999) [526 U.S. 795]
Crawford v. Metro (2009) [555 U.S. 271]
Hafer v. Melo (1991) [502 U.S. 21]