Maryland’s top court has unanimously reinstated a $644,000 award in damages and another $545,000 in attorneys’ fees and costs to a female supermarket-truck driver who was fired after refusing to undergo a medical exam not required of “similarly situated” male drivers and filing a gender discrimination complaint.
The Court of Appeals’ reversed a ruling that Julia M. Taylor, who suffers from a debilitating menstrual condition, had failed as a matter of law to show that Giant Food LLC had acted out of bias.
While the amount of the verdict could be reduced on remand to the Court of Special Appeals, the high court said Giant’s lawyers had waived their challenge to the fees and costs by failing to appeal within 30 days of the award in Prince George’s County Circuit Court.
At trial in 2007, Taylor presented evidence that four male colleagues with diabetes, Parkinson’s disease or dizzy spells were not required to take any medical tests beyond those required by the U.S. Department of Transportation. However, Landover-based Giant ordered Taylor to see an independent physician after her own doctor diagnosed her with excessive menstrual bleeding and fibroid cysts.
The jury awarded Taylor $644,751 in compensatory and nominal damages.
The Court of Special Appeals had reversed, holding that the men’s situation was not comparable to Taylor’s because their conditions were being adequately monitored by the required medical tests.
Last week, though, the Court of Appeals said the men’s medical conditions were sufficiently similar to Taylor’s gender-specific affliction to serve as valid “comparators.”
“[T]he single most relevant fact [is] that each of the male drivers used as comparators had significant health conditions but were not required to submit to an independent medical examination,” Judge Lynne A. Battaglia wrote for the court.
The case was remanded for the Court of Special Appeals to consider Giant’s unresolved argument that the verdict should be reduced based on Taylor’s alleged failure to mitigate her damages.
Attorney Cynthia E. Young, who argued Taylor’s high-court appeal, said the decision sets “a reasonable standard by which sex discrimination claimants can prove their claim” by showing how a company handled similar situations involving colleagues of the opposite sex.
In Taylor’s case, the ailment involved a menstrual problem questioned by her employer.
“Translate that to a prostate problem” if a man were alleging gender discrimination, said Young, an Annapolis solo practitioner. “It’s not the ailment itself, but the treatment or supervision that might be needed for that ailment” which determines comparability, she added.
The court’s decision to reinstate the belatedly appealed attorney’s fee award was more clear-cut.
“They missed the time period,” Young said of Giant’s attorneys. “End of issue.”
Giant spokesman Jamie Miller said, “This case is still pending on appeal and we do not comment on pending litigation.”
Connie M. Bertram, the company’s appellate attorney, did not respond to telephone and email messages seeking comment last week. Bertram is with Cooley LLP in Washington, D.C.
Taylor had been a Giant truck driver for about seven years when her gynecologist in 1995 diagnosed her with menorrhagia, or heavy, prolonged menstrual bleeding. The condition, which can strike without warning, often rendered Taylor unable to comply with the company’s requirement that drivers call no later than 90 minutes before their shift if they will be late or absent, according to her lawsuit.
Taylor requested, and received from Giant, personal leave to compensate for her condition-related inability to meet the 90-minute deadline. But in 2002, the company began issuing Taylor disciplinary notices whenever she failed to call in time, the lawsuit stated.
Taylor, after receiving several notices, submitted a report from gynecologist Jill Ladd explaining that the suddenness of the condition’s onset made it “impossible” for the driver to consistently comply with the 90-minute rule.
Giant, however, required Taylor to submit to an independent medical examination in January 2003 or risk being denied future leave requests, according to the lawsuit.
Taylor filed a discrimination complaint with the Prince George’s County Human Relations Commission on Feb. 3, 2003.
She continued to work for about three weeks, until she was called into a meeting at which Josie Smith, a Giant human resources manager, told her she was being taken off the road and would not be assigned until she had the independent medical examination and underwent any recommended procedure, according to the lawsuit.
Taylor regarded this as a constructive termination and added a retaliation claim to her discrimination allegation.
After a seven-day trial, the Prince George’s County Circuit Court jury found Giant liable for sex discrimination and retaliation, but not race discrimination, which Taylor, who is black, had also alleged.
The trial court awarded Taylor attorneys fees and costs.
The Court of Special Appeals overturned the awards in a reported opinion in 2009. Taylor then sought review by the high court, which heard argument in the case 15 months ago.
What the court held
Julia M. Taylor v. Giant of Maryland LLC, CA Nos. 9 and 10 Sept. Term 2010. Reported. Opinion by Battaglia, J. Argued Sept. 8, 2010. Filed Dec. 6, 2011.
Do male workers with debilitating medical conditions qualify as “similarly situated” to a female colleague with a gender-specific condition for purposes of showing disparate treatment in a sex discrimination case?
Yes: the men serve as valid “comparators” for determining if discrimination had occurred.
Cynthia E. Young and Jo Ann P. Myles for petitioner; Connie N. Bertram for respondent.
RecordFax # 11-1206-20.