The Fourth Circuit Court of Appeals recently decided NLRB v. White Oak Manor, a case involving an employee’s protected concerted activity, ruling in favor of the NLRB who sought to enforce an order in favor of the employee.  The employee, who was reprimanded for wearing a hat during work in violation of the company dress code, spoke with other employees to gain support for her cause and eventually complained to management about unequal enforcement of the company dress code.  The employee took pictures of other employees who were violating the dress code at work, showing tattoos and wearing hats.  The employee enlisted other employees to help her document dress code violations as well.  The employee was subsequently terminated.  Management stated specifically that she had taken pictures of a particular employee without prior permission and in doing so she violated the company’s policy forbidding the misuse of an employee’s property.  Defendant White Oak Manor contended that the employee had acted in her own self interest by complaining about the enforcement of the dress code policy.

The Court agreed with the NLRB in their assertion that the company had violated the National Labor Relations Act because the employee had talked to other employees about the policy and gathered evidence in support of her attempt to change the enforcement of the policy.  Thus the employee was participating in protected concerted activity in an attempt to achieve equal enforcement of the policy.  Equal enforcement of this policy would benefit all employees and the employee actively pursued coworkers support and help in changing the policy.  The Court thus reached the common-sense conclusion that the employee’s actions did meet the standard in the NLRA for protected concerted activity.

Categories: Judicial Decisions Tags: Appeals, Case Commentary, Concerted Activity, Fourth Circuit, Labor and Employment, NLRA, NLRB, Retaliation

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

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

In a recent unpublished opinion, Bunting v. Town of Ocean City, the Fourth Circuit partially overturned a grant of summary judgment and allowed the plaintiff to proceed to trial on his USERRA retaliation claim.   USERRA is a federal statute that protects armed service members from being discriminated in employment because of their service.  Like other anti-discrimination laws, USERRA also protects against employer retaliation because of filing a USERRA complaint.

In this case, a police sergeant filed a USERRA complaint about service-based discrimination and was subsequently denied promotions that he applied for.  While the Fourth Circuit agreed there was not enough evidence to substantiate the initial USERRA complaint, the plaintiff had produced strong evidence of the subsequent retaliation by his employer.   Thus, summary judgment was partially reversed, allowing the retaliation claim to proceed to trial.

Categories: Judicial Decisions Tags: Case Commentary, Discrimination, Fourth Circuit, Labor and Employment, Police, Retaliation, Summary Judgment, USERRA

In Simmons v. United Mortgage and Loan Investment, LLC, the Fourth Circuit ruled for plaintiffs and reversed the district court in this wage and hour case.  The plaintiffs are Charlotte-based Junior Asset Managers for a mortgage company who were not paid overtime even though they worked more than 40 hours per week.  They brought claims under the Fair Labor Standards Act (FLSA) and North Carolina Wage and Hour Act (NCWHA) based on the failure to pay overtime.  The primary issue is whether the plaintiffs will be able to pursue their case as a collective and class action on behalf the other underpaid workers at the company.  The defendants tried to short-circuit the collective/class action process by tendering a limited settlement offer before other workers could be notified of the case.  The Fourth Circuit rejected this tactic, finding the settlement too indefinite to moot the case.  The Court remanded the case to the trial court to consider plaintiff’s motion to certify the collective action and plaintiffs’ amendments to the NCWHA claims.  Ann Groninger, Burton Craige, and Narendra Ghosh are representing the plaintiffs.

More from the opinion below:

Read more…

Categories: Judicial Decisions, News of the Firm Tags: Ann Groninger, Appeals, Burton Craige, Charlotte, Class Action, Collective Action, Fair Labor Standards Act, FLSA, Fourth Circuit, Labor and Employment, Narendra Ghosh, NCWHA, North Carolina Wage and Hour Act, Overtime, Results, Wage and Hour, Wages

The Fourth Circuit has published a couple of opinions on employment law cases in recent weeks.  The first case, Bonds v. Leavitt, concerned a federal employee’s suit against the Department of Health and Human Services, which alleged Title VII claims, retaliation claims under the Whistleblower Protection Act (WPA), and unlawful termination in violation of the Civil Service Reform Act of 1978 (CSRA).  The plaintiff is a research doctor who claims she was retaliated against for opposing discrimination against African-American donors of blood lines.

The Court held that, because plaintiff’s CSRA claim was based on her EEO charge, the district court’s dismissal of the CSRA claim was improper.  The Court also held that the district court erred in granting summary judgment against plaintiff on her WPA claim as she created genuine issues of material fact regarding whether her whistle-blowing was properly reported and known by the supervisor who terminated her.  However, the Court held that the district court was correct to grant summary judgment against plaintiff on her Title VII claims because plaintiff was not whistle-blowing about an employment practice, which is necessary for a Title VII retaliation claim.

In Coleman v. Maryland Court of Appeals, the Court upheld the dismissal of the plaintiff’s Title VII claims on the pleadings.  Applying the misguided heightened pleading standard recently created by the Supreme Court, the Fourth Circuit held the plaintiff did not sufficiently allege discrimination because he did not establish a plausible basis for believing white co-employees were similarly situated to him or that race was the true basis for his termination.  The Court also upheld the dismissal of his FMLA claims, holding that under the Eleventh Amendment, Congress has not properly allowed FMLA claims against a State where the FMLA claim is based on the need for leave for one’s own medical condition.

Categories: Judicial Decisions Tags: Case Commentary, Eleventh Amendment, Federal Employees, FMLA, Fourth Circuit, Labor and Employment, Medical Leave, Pleading, Racial Discrimination, Retaliation, Sovereign Immunity, Title VII, Whistle-blowing, Whistleblower Protection Act

Ending two ridiculously long waits, the Senate has finally confirmed Charlotte Judge Albert Diaz to the Fourth Circuit Court of Appeals and Greensboro Judge Catherine Eagles to the Middle District of North Carolina.  Both will be excellent judges, and their confirmations have been long overdue.  Other North Carolina nominations are still pending though.  Former Magistrate Judge Max Cogburn was unanimously approved by Senate Judiciary Committee a couple of weeks ago for a seat on the Western District of North Carolina federal court, but has not gotten a confirmation vote in the full Senate yet.

Categories: Legislative Action Tags: Appeals, Fourth Circuit, Judge Albert Diaz, Judge Catherine Eagles, Judge Max Cogburn, Judiciary Committee, Middle District of North Carolina, North Carolina, Senate, Western District of North Carolina

Judge Jim Wynn was finally confirmed to the Fourth Circuit Court of Appeals last week.  Judge Wynn was first nominated for the court in 1999. His confirmation comes after months of being held up in the Senate by Republican obstruction after President Obama re-nominated him last year.  (Republicans, however, are still holding up the confirmation of North Carolina Judge Albert Diaz to another seat on the Fourth Circuit.)  Judge Wynn was sworn in on Tuesday, and officially resigned from his seat on the North Carolina Court of Appeals.  Judge Wynn’s former seat on the Court of Appeals will now be up for election in November.

Categories: General News Tags: Fourth Circuit, Judge Diaz, Judge Wynn, NC Court of Appeals, North Carolina, President Obama, Senate

The Fourth Circuit has issued another good decision in favor of employees who are sexually harassed in EEOC v. Fairbrook Medical Clinic. This case involves a family medicine practice in Hickory, North Carolina.  Here’s the summary: “The Equal Employment Opportunity Commission brought this suit on behalf of Dr. Deborah Waechter against her former employer, Fairbrook Medical Clinic. The agency alleges that Dr. John Kessel, the sole owner of the clinic, subjected Waechter to a hostile work environment because of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court held that Kessel’s conduct was not sufficiently severe or pervasive to constitute a hostile work environment. What happened here, however, was not merely general crudity but a series of graphic remarks of a highly personal nature directed at a female employee by the sole owner of an establishment. After carefully considering these circumstances, we conclude that the EEOC has presented an issue of triable fact and accordingly reverse.” Here’s more from the opinion: Read more…

Categories: Judicial Decisions Tags: Case Commentary, Discrimination, EEOC, Fourth Circuit, Hostile Work Environment, Labor and Employment, North Carolina, Severe and Pervasive Conduct, Sexual Harassment