CA1: the use of timebarred discrimination and remedies for mixed motive discrimination in the US Marshal’s office

DeCaire v. Mukasey, No. 07-1539.  I thought this was an immigration case.  But it is far more interesting.  A deputy US Marshal claims that she was discriminated against on the basis of “gender and retaliated against her after she filed complaints with the Equal Employment Opportunity office.”  The District Court found that yes, she was discriminated against (and the government’s neutral reasons were not credible) but the Marshal’s “hostility was motivated by his perception that DeCaire was disloyal to him personally, and not by gender animus or retaliation.”

Most of the events happen in the various courthouses in the District of Massachusetts, and I am sure that a good 7 of my 9 readers will consider this case to be juicy gossip.  However, I don’t really care about that stuff, so I skipped over most of the facts.  (Note: I do not know any of the parties personally.)

Starting with the last issue, which is of the most general import, the Fist says “We have great concern over the district court's utilization of a theory not advanced by either party to the case.”  And, in this case “Both sides to this litigation were prejudiced by the court's spontaneous introduction of a new theory of justification.”  So, you hear that: when the judge raises a new theory at the end of the case, it hurts all parties.  The result is that the “...theory on which the court resolved the case is speculation not grounded in the evidence.”

However, what matters is that 42 U.S.C. § 2000e-5(g)(2)(B)(i), (ii) means that monetary relief (but injunctive and declaratory relief) are available in mixed-motive discrimination cases, and “A discriminatory action for which a claim was not timely filed cannot be used as a basis to award relief but can be used as background in support of later claims of gender discrimination.”  Further, regarding retaliation claims, “Instead, our law is that temporal proximity alone can suffice to "meet the relatively light burden of establishing a prima facie case of retaliation."”

The First does some nice work explaining that “discretion” (of employers) doesn’t mean “do what you want” but requires that their actions not be “discriminatory or retaliatory.”