The North Carolina Court of Appeals recently issued an interesting decision in Wang v. UNC-CH School of Medicine.  The majority agreed with the trial court in finding that employees who are excluded from the State Personnel Act are still entitled to protections under the North Carolina Whistleblower Act.  The plaintiff was an EPA Non-Faculty employee whose research grant funding from the NIH was rejected by her superior, thus eliminating funding for her position.  She filed a lawsuit under the Whistleblower Act and claimed that her termination was retaliation for a letter the employee sent to administrators that discussed errors in the grant proposals sent to the NIH for her superior’s research.  The Court of Appeals concluded that the plaintiff was covered by the Whistleblower Act because it covers “all State employees, public school employees, and community college employees.”  N.C. Gen. Stat. § 126-5(c1).  The Court, however, upheld the rejection of the plaintiff’s discrimination and constitutional claims.  Accordingly, the Court sent the case back to the University’s Board of Governors in order to permit the BOG to make adequate findings of fact addressing the Whistleblower Act claim.

Categories: Judicial Decisions Tags: Appeals, Case Commentary, Labor and Employment, NC Court of Appeals, State Employee, UNC, Whistleblower Act

In International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 289 v. Verizon South, Inc., the Union has filed suit in federal court (Middle District of North Carolina) to compel the company to engage in arbitration regarding the termination of an employee.  On behalf of the Union, Patterson Harkavy has filed this response brief and this reply brief.  Mike Okun and Narendra Ghosh are representing the Union.

This is a summary of the Union’s argument:  Because national labor policy strongly favors arbitration as the means for resolving labor disputes, courts must apply a presumption of arbitrability to collective bargaining agreements that contain arbitration provisions, and direct the parties to arbitrate unless the parties have expressly agreed not to arbitrate a particular matter.  Any doubt or ambiguity regarding arbitrability is to be resolved in favor of arbitration. 

Here, the parties’ collective bargaining agreement and separate settlement agreement for grievant Brian Pollard require arbitration of the grievance regarding Pollard’s termination because Pollard was not a “new employee” when he was rehired in 2010.  Moreover, to the extent the settlement agreement is ambiguous about permitting Pollard’s grievance to be arbitrated, that ambiguity must be construed in favor of arbitration.  Therefore, defendant’s motion to dismiss should be denied, and plaintiff’s motion to compel arbitration – filed this same day – should be granted.

Categories: News of the Firm Tags: Briefs, Compel Arbitration, IBEW, Labor and Employment, Labor Arbitration, MDNC, Michael Okun, Narendra Ghosh, Unions

In, Cape Fear Public Transit Authority v. Amalgamated Transit Union (ATU) Local 1328, the Wilmington transit authority is challenging a labor arbitration in favor of the Union, which ordered a terminated employee be put back to work.  This case is before federal Judge Boyle in the Eastern District of North Carolina.  Yesterday, Judge Boyle ruled for the Union, concluding that there were no grounds to reverse the arbitration decision.  Finding the city’s lawsuit to be “without justification,” Judge Boyle also awarded the Union its attorneys’ fees for defending this case.  Here is the opinion.  Mike Okun and Narendra Ghosh are representing the Union.

Categories: News of the Firm, Results Tags: ATU, EDNC, Judge Boyle, Labor and Employment, Michael Okun, Narendra Ghosh, Results, Unions

The Fourth Circuit recently issued a troubling 2-1 decision in Dellinger v. Science Applications International Corp.  The majority (Judges Niemeyer and Keenan) held that under the anti-retaliation provision for the Fair Labor Standards Act (FLSA, the federal wage and hour law), a job applicant cannot sue an employer that refused to hire her solely because she had sued her former employer for wage and hour violations.  Although this conclusion seems contrary to the spirit of FLSA’s protections, the majority reasoned that FLSA only allows suits by an individual against their employer, not prospective employer.  The dissent by Judge King is much more persuasive, arguing that FLSA can be read to cover this situation and that such a reading is in keeping with the recognized need to eliminate retaliation against those who assert their rights under FLSA, Title VII, or other employment laws.

Categories: Judicial Decisions Tags: Appeals, Case Commentary, FLSA, Fourth Circuit, Labor and Employment, Retaliation, Title VII

The Fourth Circuit recently issued an excellent decision in Okoli v. City of Baltimore.  This case presents claims under Title VII action for sexual harassment and retaliation (termination) for reporting the harassment.  Amazingly, the trial court dismissed the case.  The Fourth Circuit reversed, concluding that the plaintiff’s allegations that her boss forcibly kissed her, fondled her leg, propositioned her, asked sexually explicit questions, described sexual activities he wished to perform, and then, after she spurned the advances and filed a harassment complaint, fired her are sufficient to support claims of hostile work environment, quid pro quo sex harassment, and retaliation.

Categories: Judicial Decisions Tags: Appeals, Articles, Case Commentary, Discrimination, Fourth Circuit, Labor and Employment, Retaliation, Sexual Harassment, Title VII

In, Cape Fear Public Transit Authority v. Amalgamated Transit Union (ATU) Local 1328, the Wilmington transit authority is challenging a labor arbitration that was in favor of the Union, and which ordered a terminated employee be put back to work.  This case is before Judge Boyle in federal court (EDNC).  On behalf of the Union, Patterson Harkavy has filed the following brief, response brief, and reply brief.  Mike Okun and Narendra Ghosh are representing the Union.

Here is a summary of the Union’s position: 

First, plaintiff’s claim should be dismissed for failure to timely effect service because plaintiff did not properly serve defendant before the 120-day deadline elapsed, and had no good cause for its failure to do so.  Second, plaintiff’s claim should be dismissed because plaintiff CFPTA was not a party to the arbitration decision that it seeks to vacate, has no standing to challenge the decision, and has provided no relevant authority to demonstrate that it is permitted to bring this suit under 28 U.S.C. § 185. 

Third, plaintiff’s claim should be dismissed for failure to state a valid claim to vacate the arbitration decision.  The arbitrator correctly determined that Professional Transit Management of Wilmington, Inc. (“PTM”) violated the controlling collective bargain agreement (“CBA”) in terminating the grievant, and to the extent there was ambiguity in the operative language of the CBA, the arbitrator’s interpretation cannot be disturbed by the Court.  Under the standard enunciated by the Supreme Court, plaintiff has also failed to show how the arbitrator’s decision to reinstate the grievant violates any clearly established public policy.  For all these reasons, the Court should award defendant its reasonable attorneys’ fees incurred in this litigation because plaintiff’s motion to vacate the arbitration award has no arguable basis in the law.

Categories: News of the Firm Tags: ATU, Briefs, EDNC, Judge Boyle, Labor and Employment, Labor Arbitration, Michael Okun, Narendra Ghosh, Unions

The Supreme Court of the United States ruled in favor of an employee last week in Kasten V. Saint-Gobain Performance Plastics Corp, which involves a retaliation claim based on verbal complaints of wage and hour violations.

The plaintiff, an employee at Saint-Gobain, complained verbally several times about the placement of the time clock at Saint-Gobain being unlawful.  The time clock was placed beyond the area where workers were required to dress in protective clothing thus they were not paid for the time they donned and doffed their protective work gear.  A lower court ruled in a related case that the placement of the time clock was indeed a violation of the Fair Labor Standards Act.  In this case, the Court considered the use of the phrase “filed any complaint” and whether it allowed for a complaint about a violation to be filed orally or if it strictly limited complaints to be filed in writing.  Justice Breyer thoroughly defined the word “file” and “filed” only to conclude that what really mattered was the spirit of the text.  Breyer found that the intended purpose of the FLSA was to protect employees many of which, at the time the law was written, were illiterate and incapable of filing complaints in writing.  The Court concluded that employees may file complaints orally if the complaint is “sufficiently clear and detailed [enough] for a reasonable employer to understand it.”  The Court, however, did not address an equally important issue about whether a complaint must be filed with a government agency, not simply an employer, to fall within the standards of the FLSA anti-retaliation provision.

This case is a partial win for employees, granting them further protection against employment discrimination under the FLSA.  (More coverage here.)

UPDATE: Jonathan Harkavy’s commentary on this case can be found here from his overview of the Supreme Court’s employment law decisions during their 2010 session.

Categories: Judicial Decisions Tags: Case Commentary, FLSA, Jonathan Harkavy, Labor and Employment, Retaliation, US Supreme Court, Wage and Hour

In Staub v. Proctor Hospital, the US Supreme Court just issued an important unanimous decision in this military-service-based discrimination case.  This case concerns the so-called “cat’s paw” theory of liability, under which one supervisor acts with discriminatory intent against the plaintiff, but the plaintiff is actually fired by another supervisor.  The case arose under the Uniformed Services Employment and Reemployment Rights Act (USERRA), which protects members of the military from workplace discrimination based on their military position or service.  The Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”

Because the language of USERRA is very similar to Title VII, this principal likely also applies to cases of race and sex discrimination at least.  (More coverage here, here.)

Categories: Judicial Decisions Tags: Case Commentary, Cat's Paw, Discrimination, Labor and Employment, Military Discrimination, Race Discrimination, Sex Discrimination, Title VII, US Supreme Court, USERRA

In the case of Pascoe v. Furniture Brands International, Judge Frank Whitney in the Western District of North Carolina denied the defendants’ motion for summary judgment on plaintiff’s claims of sexual harassment today.  The case will now proceed to trial, which is scheduled for later this month.  Ann Groninger and Joshua Van Kampen represent the plaintiffs, Pam Pascoe and Margaret Tambling, against their former employers in this case.

Judge Whitney did not issue a written decision, but plaintiff’s memorandum in opposition to summary judgment well describes this case:

This case raises a very poignant and present question, which is the extent of an employer’s liability under state and federal law for the conduct of a seemingly mentally unstable supervisor who tormented his female employees with threats of violence, including gun violence, surveillance of their homes, and numerous bizarre sexual comments. Regrettably, the conduct at issue in this case is a cautionary tale of an employer that flubbed the handling of a potentially dangerous situation by initially ignoring glaring warning signs, subsequently severely under-reacting to them, and which ultimately chose to circle the wagons around the proverbial outlaw, rather than act as a responsible member of our corporate community. Thankfully, Spicer did not turn his guns on these women as he said he might, but plaintiffs feared that he was fully capable of physically harming them. They have carried emotional scars left by Mr. Spicer’s conduct; injuries made worse by their employer’s betrayal of them. Defendants may aim to use their summary judgment motions to establish a low water mark of the protections afforded women in the workplace in North Carolina; however, plaintiffs respectfully submit that they have marshaled sufficient facts to permit a jury to answer that question.

Categories: Judicial Decisions, News of the Firm Tags: Ann Groninger, Briefs, Discrimination, Joshua Van Kampen, Judge Whitney, Labor and Employment, Results, Sexual Harassment, Summary Judgment, Title VII, Western District of North Carolina

The Fourth Circuit published an opinion in National Labor Relations Board v. Interbake Foods concerning the proper procedure for the Board in evaluating claims of privilege.  The Court held that the Labor Board can itself evaluate claims of privilege for documents, and order in camera review in that process.  But, if a party refuses to produce documents to the Board, a subpoena for the documents must be enforced by a federal district court, which will have to evaluate the claims of privilege in deciding whether to enforce the subpoena.

Categories: Judicial Decisions Tags: Case Commentary, Fourth Circuit, Labor and Employment, National Labor Relations Board, Privilege, Subpoena