— Posts About Fourth Circuit

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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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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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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4th Circuit CoA Examines Faragher-Ellerth Defense

In Dulaney v. Packaging Corp. of America, Carla Dulaney started working for PCA in 2006 on as assembly line position.  The “lead production worker” was Bobby Mills, who had a number of supervisory powers.  In November 2006, Mills effectively promoted Dulaney from a probationary to permanent position.  The next month, he began repeatedly demanding quid pro quo sexual favors.  At first Dulaney refused, but later did engage in sexual activity with Mills.  Mills would yell at her when she refused him and on occasion would send her home without pay.  When Dulaney reported this to management she was laughed at and told she was replaceable.  Mills continued to face sexual harassment from Mills and rumors were spread by co-workers.  In September 2007, Dulaney and a co-worker complained about Mills’ conduct, which led to his dismissal.  Dulaney’s relationship with her co-workers and supervisor deteriorated after this point.  Finally, she spoke with HR about wanting to find another job and HR gave her a severance agreement three days later.  When Dulaney did not sign the agreement on the spot, she was escorted out of the building and had her keys taken.  After consulting with an attorney, she did not sign the agreement.  Later, she was sent a letter by HR stating she could return to work, but in her unemployment hearing she was still listed as terminated.  Dulaney sued PCA and Mills for gender discrimination and sexual harassment under Title VII and state law.  The district court granted summary judgment for PCA, somewhat confusingly based on the Faragher-Ellerth defense.  The Fourth Circuit unanimously reversed.

The primary issue for the Court was whether the company took a tangible employment action, which would preclude use of the Faragher-Ellerth defense.  The district court reasoned that Dulaney was not fired because she was only given a severance agreement.  However, the agreement could be read to terminate Dulaney, she was escorted off premises when she refused to sign it, and her pay was stopped.  Drawing inferences in her favor, the Court found this constitutes a termination.  The second issue is that there must be “some nexus between the harassment and the tangible employment action for the latter to be actionable.”  Here, the supervisor’s treatment of Dulaney as she sought to report Mills’s sexual harassment and his subsequent involvement in her termination suggested a nexus between Mills’s harassment and her termination.  It was at least enough for a jury to decide the issue.

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4th Circuit Rejected the ADA Claim for a Medical Student with ADHD

In Halpern v. Wake Forest University Health Sciences, Ronen Halpern was enrolled in Wake Forest’s Doctor of Medicine program from July 2004 to March 2009.  Halpern has been diagnosed with ADHD and anxiety disorder, both of which he treats with prescription medications.  Halpern’s difficulties with professionalism began almost immediately after his arrival at the Medical School and continued throughout the first two years of his enrollment.  There were incidents of abusive behavior toward staff and unexplained absences.  Halpern failed his first rotation in 2006 due to “frequent lapses in professionalism,” with poor interpersonal skills and more absences.  Shortly thereafter, Halpern went on medical leave to address the severe side effects of his medications.  Halpern returned in April 2007 and thereafter successfully completed ten clinical rotations.  However, there were several incidents of unprofessional behavior along the way, including poor interactions with staff and faculty.   Finally, in November 2008, Halpern failed to send letters of appreciation to scholarship donors, despite numerous reminders.  Although typically this would not have resulted in expulsion, because Halpern was on probation due to his failure of his first rotation, the Medical School referred his file to the Student Progress and Promotions Committee, which recommended dismissal.  In internal appeals, Halpern proposed a strict probation plan as an alternate remedy.  Concluding that the professionalism concerns would not be addressed by this plan, the Dean of the School decided to dismiss Halpern.

Halpern filed suit under the Rehabilitation Act and ADA.  The district court granted summary judgment for the defendant because Halpern was not “otherwise qualified” and his proposed accommodation was unreasonable.  The Fourth Circuit unanimously affirmed.  In the context of a student excluded from an educational program, to prove a violation of either Act, the plaintiff must establish that (1) he has a disability, (2) he is otherwise qualified to participate in the defendant’s program, and (3) he was excluded from the program on the basis of his disability.  There was no dispute that Halpern had a disability.  As to the second prong, the Court, like other circuits, gave “great deference” to the school’s professional judgments regarding necessary qualifications and the reasonableness of accommodations.  It found that professionalism was an essential requirement of the Medical School’s program and that, without an accommodation, Halpern could not satisfy this requirement.  Despite Halpern’s passing of ten rotations, the Court found there to “extensive evidence of Halpern’s unprofessional behavior.”

The Court also rejected Halpern’s proposed accommodation – psychiatric treatment, participation in a program for distressed physicians, and continuing on strict probation – because it was untimely, had an indefinite duration, and had an uncertain likelihood of success.  Halpern’s expert conceded the last two points.  Finally, the Court rejected the claim that Wake Forest failed to engage in an interactive process.

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The 4th Circuit CoA Reversed the Granting of Summary Judgment to the employer, Finding Merit in a Claim of Discriminatory Discharge

In Burgess v. Bowen, Denise Burgess, an African American female, worked as an executive for the Special Inspector General for Iraq Reconstruction (“SIGIR”).  Burgess had requested an administrative assistant be hired for her and another African American woman, Patricia Redmon, was hired.  Ginger Cruz a former employee of SIGIR came back to the agency and was installed in a director position directly supervising Burgess in June 2007.  Cruz immediately took a disliking towards Burgess and made comments like “people who file discrimination complaints are weak links in the chain . . . looking to excuse their own personal failing.”  In July 2007, Cruz fired Redmon.  Burgess sent an email to Cruz questioning the “fairness and equality” of the termination.  Later that day Cruz called Burgess into a meeting and announced that her position was being eliminated because of budget constraints.  Cruz put Burgess on administrative leave.  Separately, she began the process of drafting a job description for a new, but very similar job.  This job was given to a white woman who had previously worked at SIGIR, but was terminated in part for performance.  It is typical for terminated or laid off employees of SIGIR to receive other jobs within the agency.  Despite records of Burgess’s laudable performance, she was not given another position.  Burgess was the only African American member of SIGIR’s senior management at the time, the only member of senior management to be involuntarily terminated, and the only SIGIR employee terminated as part of the agency’s reorganization.

Burgess claimed Title VII violations of discriminatory discharge, failure to transfer, and retaliation.  The district court granted summary judgment to the defendant on all claims.  The Fourth Circuit unanimously reversed as to all claims.  Burgess first argued that she suffered racial discrimination when her position was terminated and when a less qualified white woman was selected for the new position created in its place.  Unlike the district court, the Court found Burgess had made out her prima facie case because she had presented sufficient evidence that the new position was functionally equivalent to her old one.  The Court also found “significant inconsistencies” in the purported rationale that budget cuts necessitated Burgess’s termination, and held that “such evidence standing alone was sufficient to show pretext after SIGIR proffered its nondiscriminatory explanation.”

With regard to the denial of transfer claim, the defendant’s purported rationale was that Burgess “was not the person for the job,” and was unwilling to do low-level tasks.  On this point, Burgess pointed to evidence showing that she was awarded a bonus for exemplary performance and that she routinely worked late hours to execute the functions of the Public Affairs office.  Also, her replacement had previously been fired for poor performance.  And, SIGIR’s rationale was so vague that it could conceal racial animus.  Crediting this evidence, the Court found it showed “inconsistencies undermining the credibility of SIGIR’s proffered explanation,” and under Reeves, Burgess was required to do no more to survive a motion for summary judgment.

On the retaliation claim, the Court found that Burgess’s complaint regarding Redmon, namely the email to Cruz, constituted protected activity.  With causation, as in Okoli, the Court found it “deeply suspicious” that Cruz took all of her actions against Burgess only after Burgess challenged the fairness and equality of the decision to terminate Redmon.  Notably, Cruz admitted that she would have considered offering Burgess another position had the conversation during Burgess’s termination meeting gone differently.  And, as with the discrimination claims, the evidence of pretext was sufficient to overcome summary judgment.

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4th Circuit Rules that Internal Complaints are Protected Activities Under FLSA’s Anti-Retaliation Provision

In Minor v. Bostwick Laboratories, Inc., Kathy Minor was hired by Bostwick Laboratories as a medical technologist on December 24, 2007.  She received satisfactory or above average ratings at her only performance review on April 30, 2008, just twelve days before her firing.  On May 6, 2008, Minor and several co-workers met with Bostwick’s chief operating officer, Bill Miller.  The employees called the meeting to report overtime violations to Miller.  Specifically, Minor informed Miller that her supervisor, Dawn Webber, routinely altered employees’ time sheets to eliminate overtime pay.  Miller told the group that he would look into the allegations.  The following Monday, May 12, Bostwick terminated Minor’s employment.  Miller and the HR manager claimed that the reason for Minor’s firing was that there was “too much conflict with [her] supervisors and the relationship just [was not] working.”  Minor filed suit for FLSA retaliation, but the district court granted the defendant’s motion to dismiss.

The Fourth Circuit began its analysis by reviewing last year’s Kasten v. Saint-Gobain Performance Plastics Corp., 131S. Ct. 1325 (2011), in which the Supreme Court held that oral complaints could constitute protected activity under FLSA.  Because FLSA’s purpose required a broad interpretation of the anti-retaliation provision, and because it gave some weight to the positions of the Secretary of Labor and EEOC, the Supreme Court concluded that oral complaints could qualify as protected activity.  The Supreme Court, though, expressly declined to address the question of whether an internal complaint could qualify as protected activity.  This issue had not been previously addressed by the Fourth Circuit.

The Court looked at the language of Section 215(a)(3), specifically its coverage when an employee “filed any complaint,” and found it to be ambiguous here.  Functionally, the Court recognized that failing to protect internal complaints would discourage the use of workplace grievance procedures to secure compliance with FLSA.  And, it could have the perverse result of encouraging employers to fire employees who believe they have been treated illegally before they file a formal complaint.  Thus, the EEOC and Department of Labor consistently advanced the plaintiff’s position.  Accordingly, the Court concluded that the purpose of FLSA required internal complaints to be protected by Section 215(a)(3), joining most of the other circuits.  To guarantee that internal complaints provide sufficient notice to employers, the Court held that an internal complaint must be “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”  Minor’s complaint met that test, so the Court reversed.

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4th Circuit CoA Rules on Attorneys Fees in Unsuccessful Title VII Suit

The EEOC v. Great Steaks, Inc., EEOC accused Great Steaks of subjecting female employees to a sexually hostile work environment.  Although at the start of the case the EEOC asserted its claim on behalf of seven or eight claimants, that number diminished to just one by trial.  After a three-day trial, the jury rendered a verdict in Great Steaks’ favor.  Great Steaks subsequently moved for an award of attorneys’ fees under three provisions: Title VII’s fee-shifting provision, 42 U.S.C. § 2000e-5(k); the Equal Access to Justice Act’s (EAJA) mandatory fee provision, 28 U.S.C. § 2412(d), and 28 U.S.C. § 1927.  The district court denied the motion for fees in its entirety.  The Fourth Circuit unanimously affirmed.

Under Title VII, defendants can obtain attorneys’ fees only if the suit was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.  Such fees are to be applied “sparingly.”  That the EEOC survived all dispositive motions before the jury verdict was relevant to the inquiry, but not determinative.  Looking at the merits, the Court found that although only one plaintiff was left by trial, that plaintiff’s testimony was sufficient for the claim to be non-frivolous, even if not ultimately credited by the jury.  Thus, no fees could be awarded under Title VII.  The Court then held that because a more specific statutory provision applied to the case, the fee-shifting provisions in the EAJA are unavailable to the defendant.  28 U.S.C. § 1927 permits fees against attorneys who abuse court processes in bad faith, apart from the ultimate outcome of the case.  Here, there was no such abuse.

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4th Circuit CoA Ruled that Federal Employees are Barred from Bringing Title VII Suits in State Court

In Bullock v. Napolitano, Willie Bullock was a former employee in the federal air marshal program and sued the Department of Homeland Security for racial discrimination under Title VII.  He filed suit in North Carolina superior court and the defendant removed to federal court.  The district court then granted the defendant’s motion to dismiss on sovereign immunity grounds.  In a 2-1 decision (Niemeyer and Agree in the majority), the Fourth Circuit affirmed.

In 1972, Congress amended Title VII to provide that a federal employee, who has exhausted his administrative remedies, “may file a civil action as provided in section 2000e-5” against a federal department or agency.  42 U.S.C. § 2000e-16(c).  This provision is a clear waiver of federal sovereign immunity.  Section 2000e-5, however, only explicitly states that Title VII suits may be brought in federal court.  In Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820 (1990), the Supreme Court permitted Title VII suits against private employers in state court because concurrent jurisdiction was presumed.  No circuit court had addressed whether the same holds true for suits against federal agencies.  The majority concluded that it did not.  Because waivers of sovereign immunity have to be explicit, and section 2000e-5 only refers to federal courts, there was no waiver for suits in state court.  Because the North Carolina court did not have jurisdiction, the federal court did not have jurisdiction upon removal.

In dissent, Judge Gregory argued that because Title VII waived sovereign immunity, and the Supreme Court interpreted section 2000e-5 to permit state court jurisdiction, then the waiver encompasses state court jurisdiction.  Nothing in Yellow Freight limited the opinion to private employers.  This logic is convincing, but Bullock is now the law of the circuit, so federal employee suits must be brought in federal court.

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Fourth Circuit Affirms Protected Concerted Activity Claim

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.

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