— Judicial Decisions

Voucher victory as Court of Appeals permits preliminary injunction to remain in place

Advocates for private school vouchers suffered another defeat today, as the North Carolina Court of Appeals left in place Judge Hobgood’s order enjoining the state’s private school voucher scheme.

The North Carolina General Assembly enacted the scheme in 2013.  If implemented, it would divert money from North Carolina’s public schools to subsidize private school students’ tuition.  Together with attorneys from the Justice Center, Patterson Harkavy attorneys Burton Craige and Narendra Ghosh represent twenty five plaintiffs who claim the scheme violates various provisions of the North Carolina Constitution.  On February 28, Superior Court Judge Robert Hobgood agreed, finding that it likely violated the requirement that money allocated for public education be used “exclusively” for free public schools.  He therefore issued a preliminary injunction preventing the state from taking any steps to implement the program.

On March 18, proponents of private school vouchers asked the North Carolina Court of Appeals to delay the implementation of Judge Hobgood’s injunction until an appeal could be heard.  Today’s order denies that petition.  The favorable ruling is the first time an appellate court has addressed any issue in this litigation.

The brief order from the Court of Appeals can be found here.

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Judge Hobgood issues written order enjoining voucher scheme

Judge Hobgood issued an order yesterday afternoon putting into effect his prior ruling enjoining North Carolina’s private school voucher scheme.

Patterson Harkavy’s Burton Craige, attorney for the plaintiffs, explained, “Judge Hobgood enforced the plain language of the North Carolina Constitution.  Public funds for education must be used ‘exclusively’ for establishing and maintaining a uniform system of free public schools. Judge Hobgood recognizes that ‘exclusively’ means exclusively.”

Judge Hobgood’s order likewise found that the specific manner in which the voucher scheme was financed violated the North Carolina Constitution.  The voucher scheme would have diverted $10 million from public schools to private schools, and would have required local school districts to return already allotted public funds to the state in order to fund private school students’ tuition.

Alice Hart, lead plaintiff, commented, “The 25 plaintiffs are gratified by today’s decision. It would have been a terrible mistake to divert public funds to private schools when we urgently need to devote our attention to all of our children in our public schools, raise the pay for our teachers and provide more resources to our classrooms.”

The order prevents the State from taking any further steps to implement the program, stating that “Defendants are ENJOINED until further order of this Court from implementing the challenged legislation, including the acceptance of additional voucher applications, the processing of voucher applications, the selection of voucher recipients, and the expenditure or disbursement of any public funds in furtherance of the challenged legislation.”

Click here for the full text of Judge Hobgood’s opinion.  Click here for an article by the North Carolina Association of Educators further discussing the order.

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Judge Hobgood rules in favor of Patterson Harkavy’s clients, halting private school voucher scheme

At a hearing today in downtown Raleigh, Superior Court Judge Robert Hobgood enjoined the State from implementing its private school voucher scheme.  If not for Judge Hobgood’s landmark ruling the scheme would have taken millions of dollars from North Carolina’s public schools in order to pay private school students’ tuition.  Private schools receiving taxpayer funds would not have been required to meet any educational standards, would not have been subject to any public accountability, and would not have been prohibited from discriminating against students on the basis of disability, gender, or religion.

Patterson Harkavy attorneys Burton Craige and Narendra Ghosh, working with attorneys from the North Carolina Justice Center and the North Carolina Association of Educators, represent the case’s 25 plaintiffs.  They have alleged that the voucher scheme violates various provisions of the North Carolina Constitution.  The State School Board Association, together with more than half of North Carolina’s local school boards, is also challenging the constitutionality of the scheme.

Burton and Narendra have argued that the Voucher Legislation provides taxpayer funds for public education to private schools, in violation of Article IX, Section 6 of the North Carolina Constitution, which requires that those funds be “used exclusively for establishing and maintaining a uniform system of free public schools.”   Plaintiffs also claim that providing taxpayer funds to private schools with no standards or accountability does not accomplish a public purpose, in violation of Article V, section 2.

On Monday, Judge Hobgood denied the State’s motion to dismiss the plaintiffs’ claims.  Today, in issuing his injunction, Judge Hobgood found that that the plaintiffs were likely to succeed on the merits and that they would suffer irreparable harm if the State was permitted to continue implementing the program.

Burton’s arguments from Monday’s hearing can be found here; his arguments from today’s hearing can be found here.  The historic victory has been covered by news outlets across the state, including the Raleigh News & Observer, the Greensboro News & Record, the Charlotte Observer.

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Win for Burton and Narendra: Court of Appeals Affirms Dismissal of District Attorney Tracey Cline

The North Carolina Court of Appeals has affirmed a trial court order removing Durham District Attorney Tracey Cline from her office.  In re Cline, __ N.C. App. ___, 749 S.E.2d 91 (2013).  Patterson Harkavy attorney Burton Craige acted as court appointed counsel responding to Cline’s appeal of her dismissal.

The controversy has its roots in late 2011, when Cline began making numerous false and outrageous accusations against Durham Superior Court Judge Orlando Hudson, Jr. in public pleadings.  Cline’s behavior lead attorney Kerstin Sutton to petition for Cline’s removal under N.C. Gen. Stat. § 7A-66, which establishes a number of grounds on which a district attorney can be removed from office.  Sutton was appointed to present evidence against Cline at a hearing before Superior Court Judge Robert Hobgood.  On March 2, 2012, Judge Hobgood found that Cline had engaged in conduct “prejudicial to the administration of justice which brings the office into disrepute” under N.C. Gen. Stat. § 7A-66(6), and removed her from office.  Cline appealed.

The court appointed Burton Craige to manage the response to Cline’s appeal.  Burton worked with Sutton and Patterson Harkavy attorney Narendra Ghosh to defend Judge Hobgood’s removal order.  On October 1, a unanimous panel of the North Carolina Court of Appeals published an opinion affirming Judge Hobgood’s order removing Cline from her office.

The News and Observer has engaged in extensive coverage of the controversy, including an investigative series entitled “Twisted Truth: a Prosecutor Under Attack.”  More recent articles explore Burton’s role as court appointed independent counsel and discuss Monday’s Court of Appeals decision.

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Burton and Narendra Secure Court of Appeals Win in Medical Malpractice Discovery Dispute

In Hammond v. Saini, __ N.C. App. ___, 748 S.E.2d 585 (2013), the Court of Appeals ruled in favor of Patterson Harkavy’s client, Plaintiff Judy Hammond.  Ms. Hammond suffered severe injuries from an operating room fire while undergoing surgery to remove a possible basal cell carcinoma from her face.  In her subsequent medical malpractice suit, the Defendants refused to produce certain documents addressing the fire and notes made by the hospital’s risk manager following the fire.  The trial court rejected the Defendants’ argument that these items were privileged and granted Ms. Hammond’s motion to compel discovery.  Burton Craige and Narendra Ghosh represented Ms. Hammond on Defendants’ appeal of that decision.

On September 3, a Court of Appeals panel published a unanimous opinion in favor of Ms. Hammond, affirming the order compelling production of the Defendants’ reports, and remanding the issue of whether the risk manager’s notes were protected by the Work Product Doctrine to the trial court.  For more information, read Burton and Narendra’s brief to the Court of Appeals.

 

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Mike and Narendra Secure Fourth Circuit Victory for Union

The Fourth Circuit Court of Appeals ruled in favor of Patterson Harkavy’s client in Int’l Bhd. of Elec. Workers, AFL-CIO, Local Union No. 289 v. Verizon S., Inc., No. 12-2013, 2013 WL 3770706 (4th Cir. July 19, 2013).

The case arose from a dispute surrounding Verizon’s termination of employee Brian Pollard.  Verizon sought to avoid arbitration of the controversy, claiming that Mr. Pollard was only a probationary employee without the right to arbitrate his discharge under the Union’s collective bargaining agreement.  Representing the Union in the Middle District of North Carolina, attorneys Narendra Ghosh and Mike Okun filed a motion to compel arbitration.  In January of 2012, Magistrate Judge Trevor Sharp recommended that the Union’s motion to compel arbitration be granted.  Following the Recommendation’s adoption by Judge William Osteen, Jr., Verizon South appealed to the Fourth Circuit.

In an opinion issued last week, the Fourth Circuit unanimously affirmed the District Court’s ruling, finding that both the Collective Bargaining Agreement and a separate agreement were “at minimum, reasonably susceptible to the interpretation that the Union advances.”  Since doubts as to whether an arbitration clause covers a given dispute are resolved in favor of coverage, the Fourth Circuit found it appropriate to compel arbitration of the dispute.

Congratulations to Mike and Narendra on the win!

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Court of Appeals Rejects REDA Claim by Pro Se Plaintiff

In Fatta v M & M Properties Management, Inc. the North Carolina Court of Appeals heard an appeal by a pro se plaintiff of the trial court’s granting of summary judgement.  Plaintiff worked for the company in one of their hotels as a property manager.  During Plaintiff’s training, he was injured while cleaning a room.  He reported the injury to his supervisor and said he would file workers’ compensation paperwork if the injury was more severe than a pulled muscle.  A day after he reported his injury to his supervisor, Plaintiff was given a first and final written warning; five days after the warning Plaintiff was terminated.  Plaintiff filed a Form 18 with the North Carolina Industrial Commission five days following his termination.

Plaintiff contends that the company violated the Retaliatory Employment Discrimination Act (REDA) by firing him while he was engaged in protected activity, namely threatening to file a workers’ compensation claim.  The Court of Appeals agreed that threatening to file a workers’ compensation claim is protected activity.  However, the Court affirmed the trial court’s order because Plaintiff could not show a causal relationship between his termination and threatening to file a claim.  Plaintiff argued that the close proximity in time between when he reported his injury and was terminated showed that Defendant had unfairly retaliated against him for threatening to file a workers’ compensation claim.  However the Court stated that the proximity of the date of injury to the termination date is not enough, standing alone, to show a causal connection.

Given the really close timing here, the Court’s decision seems incorrect.  But, it appears that because the plaintiff was not represented by an attorney, he did not develop the facts in his case as well as he could have. There well could have been more incriminating facts that were not put before the court.

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The 4th Circuit CoA Ruled that the EEOC could be Estopped in an ADA Enforcement Action

In EEOC v. Greater Baltimore Medical Center, Inc., Michael Turner was a unit secretary at GBMC who suffered multiple serious health conditions in 2005 that first required hospitalization in January 2005.  He was out of the work for most of the year and then suffered a stroke in December 2005.  That month he filed an application for SSDI benefits, stating that he had been unable to work since January.  The application stated that he would notify the SSA if his condition improved.  Turner was granted SSDI benefits in January 2006, retroactive to January 2005.  He has continued to receive the benefits.  But, in January 2006, Turner notified GMBC that he wanted to return to work, and his physician indicated that the could return in a part-time position such as a file clerk.  On June 1, 2006, Turner was cleared for full-time file clerk work, but was not given a position.  On June 30, having not obtained any new position with GMBC, Turner was formally terminated.  The EEOC filed suit on his behalf under the ADA claiming disability discrimination after Turner was able to return to work.  The district court granted summary judgment for GBMC on the basis that the ADA claim was incompatible with Turner’s application for and acceptance of SSDI benefits.  The Fourth Circuit affirmed in a split decision.

The ADA requires the plaintiff to be an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position.  This requirement may be incompatible with the assertion for SSDI purposes that the claimant is totally disabled, and the plaintiff may be estopped from contradicting the SSDI statements.  Under Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), a court should require an explanation of any apparent inconsistency between the SSDI standard and the necessary elements of an ADA claim.  In previous cases, the Fourth Circuit had not found any inconsistency between ADA claims and SSDI or workers’ compensation benefits, but the analysis is fact-specific.  Here, the majority found Turner’s ADA claim to be in direct conflict with his SSDI statements that he was disabled continually since 2005.  Turner’s ADA claim that he could work in 2006 after improvement in his condition conflicts with his continued receipt of SSDI benefits and failure to report to SSA any change in condition.  Nor could the conflict be squared by the absence of accommodations; Turner never claimed to need any.

In dissent, Judge Gregory argued that the EEOC should never be estopped by the statements of a claimant because it did not make the statements.  Estoppel against the government is disfavored and is contrary to the purpose of EEOC enforcement of the ADA.  Judge Gregory also argued that Turner’s SSDI benefits and ADA claim were compatible.  For example, a jury could find that Turner had a good-faith belief in his SSDI assertion of disability because that is how GBMC treated him when it refused to give him his job back or to hire him for a new position despite his dozens of applications and superb work history.

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SCOTUS Rules that Self-Care Provision of the FMLA does not Apply to the States: North Carolina Not Affected

In Coleman v. Court Of Appeals Of Maryland, Daniel Coleman was employed by the Court of Appeals of the State of Maryland.  When he requested sick leave, he was informed he would be terminated if he did not resign.  He then filed an FMLA suit, which was dismissed on sovereign immunity grounds.  Breaking along the familiar 5-4 line, the Supreme Court affirmed the dismissal.  Under the Court’s recent 14th Amendment jurisprudence, Congress can abrogate state sovereign immunity under Section 5 only if its legislation is sufficiently “tailored” to remedy violations of the 14th Amendment’s substantive provisions, such as the Equal Protection Clause.  In Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003), the Court held this standard was met by the family-member-care provision of the FMLA because it addressed gender discrimination related to family leave.  The majority here, however, found no “widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave,” and thus no Equal Protection basis for the provision.

Justice Ginsberg, in dissent, discussed the entire history of the FMLA and its focus on addressing gender discrimination in employee leave policies.  One of the primary motivations for the self-care provision was to provide leave for women suffering from pregnancy-related illness and those recovering from pregnancy.  Also important was mandating personal leave in addition to family leave so that employers would not have a new reason to discriminate against female employees.  She thus found a sufficient basis for Congress to apply the FMLA to the states.

State employees in North Carolina are not hurt by this decision, however, because North Carolinahas waived its sovereign immunity for FMLA suits brought by state employees.  See N.C. Gen. Stat. § 143-300.35(a)(3).

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The 4th Circuit CoA Holds that Discrimination in the Offers of Severance Agreements can be Actionable Under Title VII

In Gerner v. County of Chesterfield, Karla Gerner was a twenty-five employee of the county whose position was eliminated in a reorganization.  She was offered a severance agreement that included three months of pay, which she rejected.  The county then terminated her without any severance.  She filed suit under Title VII, alleging sex discrimination in that male counterparts received better severance offers than she did, citing four examples.  The district court granted the defendant’s motion to dismiss based on there being no adverse employment action.

The Fourth Circuit unanimously reversed.  In Hishon v. King & Spalding, 467 U.S. 69 (1984), the Supreme Court held that any “benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all.”  Id. at 75.  In situations like that at hand, in which an employee did not volunteer for a change in employment benefits or retain a job in lieu of a new benefit, courts have consistently recognized that the discriminatory denial of a non-contractual employment benefit constitutes an adverse employment action.  The district court thus erred in concluding a discriminatory denial of a favorable severance offer – a non-required benefit – could not be an adverse employment action.  The district court also erred in concluding that any discriminatory action took place after the employment ended.  First, Gerner alleged that she was still employed when she got the poor severance offer.  Second, even if she were not, “Title VII protects both current and former employees from discriminatory adverse employment actions.”  The Court thus reversed and remanded for the district court to determine if the severance offer was “part and parcel of the employment relationship.”

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