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 14^th Amendment jurisprudence, Congress can abrogate state sovereign immunity under Section 5 only if its legislation is sufficiently “tailored” to remedy violations of the 14^th 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).

Categories: Judicial Decisions Tags: Case Commentary, FMLA, Labor and Employment, North Carolina, US Supreme 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.

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

In Trivette v. Yount the defendant, a middle school principle, had a fire extinguisher removed from a classroom after a student had removed the safety pin and discharged the extinguisher.  The fire extinguisher was brought to the front office to avoid any further incident.  The following day the defendant placed the fire extinguisher on or around the plaintiff”s desk in the front office.  The plaintiff alleged that he was joking around with the fire extinguisher and when asked to stop joking “before it went off” said to the plaintiff, “Oh, you’re being such a baby, nothing is going to happen.”  The fire extinguisher discharged and sprayed the plaintiff’s body and face aggravating her preexisting neuro-muscular condition and causing extensive injury.

At issue in this case is the plaintiff’s attempt to seek damages from the defendant directly in a personal injury action under the Pleasants exception.  The defendant contends that he was Ms. Trivette’s employer and thus her relief is limited only to the Workers’ Compensation Act.  The Court of Appeals affirmed the trial court’s decision, stating that though the defendant was Ms. Trivette’s immediate supervisor and an administrator, he is not given the authority to “employ” any person as outlined in N.C. Gen. Stat. §115C-288.  Therefore, the defendant was a co-employee and not the employer.  The Court also found sufficient evidence that he acted in a willful, wanton and recklessly negligent manner because he knew that there was a risk of the extinguisher accidentally discharging and was asked not to joke around with it, but continued to do so causing harm to the plaintiff.

Categories: Judicial Decisions Tags: Appeals, Case Commentary, Labor and Employment, NC Court of Appeals, North Carolina, Personal Injuries, Workers' Compensation

An executive order was issued on Wednesday by North Carolina Governor Beverly Perdue that will extend long-term unemployment benefits to 25,000 jobless workers in the state.  The federal government pushed back the deadline for extended unemployment benefits to the end of February, but required states to make the change to their systems of calculations and deadlines as well to be eligible to get the federal funds.  Governor Perdue could have called a special session of the General Assembly to make this change, but chose to go the quicker route and issue an executive order.  The extension provides much needed benefits to unemployed workers.  More coverage here.

Categories: General News, Legislative Action Tags: Beverly Perdue, Extended Unemployment Benefits, Labor and Employment, NC Legislature, North Carolina, Unemployment Benefits

Shortly before Christmas, House Republicans finally gave in and sensibly agreed to the two-month extension for extended unemployment benefits.  When Congress returns after recess, debate will resume on whether to further continue the vitally needed unemployment insurance programs.  For more information on North Carolina’s Extended and Emergency Unemployment benefits, see the Division of Employment Security’s site, here.

Categories: Legislative Action Tags: Congress, DES, Emergency Unemployment Benefits, Extended Benefits, Labor and Employment, North Carolina, President Obama, Unemployment Benefits

The North Carolina Court of Appeals reversed the decision of the North Carolina Industrial Commission in Ray v. NC Department of Transportation.  The case involved the death of a motorist and her passengers in 2002 when an eroded section of pavement caused her vehicle to go off the roadway, she corrected, and hit an oncoming car head on.  The plaintiff alleged that that NC DOT was negligent in maintaining the roadway and not repairing the eroded section which they knew was dangerous or should have known was a dangerous to motorists.  The Commission dismissed the case based on the public duty doctrine which can be used as a defense by the State of North Carolina from certain tort claims.  Reversing, the Court of Appeals concluded:

“ This case does not involve a failure to inspect or to police, but a failure to repair a defective section of roadway. There is no “hazard created by others” or important discretionary decision which requires the government to be protected under the public duty doctrine.”

Burton Craige wrote an amicus brief on behalf of the North Carolina Advocates for Justice for this case.  The brief can be accessed here.

Categories: Judicial Decisions, Results Tags: Appeals, Briefs, Burton Craige, Case Commentary, Industrial Commission, NC Court of Appeals, NCAJ, North Carolina, Personal Injuries, public duty doctrine, Results

The North Carolina Court of Appeals published a decision in a free-speech retaliation case in  Ginsberg v. Board of Governors of the University of North Carolina.  The plaintiff, who worked at NC State University as a teaching assistant professor, contended that the University had violated her First Amendment free speech rights by punishing her in a hiring decision in retaliation for her protected speech.  On November 9, 2007, the plaintiff was reprimand by professors for purportedly showing bias during her introductory statements on a film that was being presented on the Israeli-Palestinian conflict.  Just weeks later, the plaintiff was de-listed as a first-tier candidate for an open tenure track position, and some of the professors who had reprimanded her were on the search committee.  Nonetheless, affirming the trial court’s grant of summary judgment, the Court concluded that the plaintiff had failed to present sufficient evidence of causation between her protected speech and the university’s hiring decision.  The Court held that she had not supported her claim “beyond mere speculation.”

Categories: Judicial Decisions Tags: Appeals, Case Commentary, Civil Rights, Constitutional Law, First Amendment, Labor and Employment, NC Court of Appeals, North Carolina, Retaliation, Summary Judgment

Burton Craige authored a paper this month titled “Billed v. Paid: Present, Past, Future”.  Burton presented his paper this month at the North Carolina Advocates for Justice CLE, “Bill v. Paid: Counting the True Cost.”  His paper discusses the way the “Billed v. Paid” issue is handled in other states and how North Carolina’s law has changed over the years.

Introduction:

In June 2011, the North Carolina General Assembly enacted HB 542, titled “Tort Reform for Citizens and Businesses.”  Section 1.1 of HB 542 creates a new rule of evidence (Rule 414) that limits evidence of past medical expenses to “the amounts actually paid to satisfy the bills” and “the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied.”  Section 1.2 amends G.S. § 8-58.1, limiting the plaintiff’s testimony about reasonable medical expenses to the amount “paid or required to be paid in full satisfaction” of the charges. In combination, the new provisions, commonly referred to as “billed v. paid,” will significantly reduce the amount that injured plaintiffs can recover for their medical expenses.  The billed v. paid provisions are effective for all actions “arising on or after” October 1, 2011.

In the past decade, many states have confronted the billed v. paid issue in their appellate courts.  A handful of states have addressed the issue legislatively.  This paper reviews the experience in other jurisdictions, traces the evolution of billed v. paid in North Carolina, and identifies a potential constitutional challenge to the new legislation.

Categories: News of the Firm Tags: Articles, Burton Craige, CLE, Constitutional Law, Damages, Medical Bills, NC Legislature, NCAJ, North Carolina, Personal Injuries, Presentation

Burton Craige recently submitted an amicus brief with attorney Andrew J. Schwaba on behalf of the North Carolina Advocates for Justice in Jenkins v. Hearn Vascular Surgery P.A., addressing the question: “Is a child injured by prenatal medical malpractice barred from bringing a cause of action if the negligence occurred early in the pregnancy?”  A copy of the brief may be viewed here.

Summary of the Brief:  “Decades ago, North Carolina joined nearly every other state in recognizing that survivors of prenatal medical malpractice can bring negligence claims against the doctors responsible for their injuries and birth defects. … Our courts did not make recovery dependent on a fetus’s gestational age at the time of the negligence.

The question of whether North Carolina’s Wrongful Death Act, N.C.G.S. § 28A-18-2 creates a cause of action for the wrongful death of a nonviable fetus has no relation to claims of common law negligence.  When it is reasonably foreseeable that negligent care could injure a woman’s future child, doctors have the duty to avoid negligently placing the future child at risk of injury.  This duty does not depend on whether a fetus has reached the stage of viability.  Accepting a contrary rule would run counter to North Carolina law, break ranks with every other state, and deny a remedy to injured children who will suffer their entire lives because of avoidable medical negligence.”

Categories: News of the Firm Tags: amicus brief, Briefs, Burton Craige, Medical Malpractice, NC Court of Appeals, NCAJ, Negligence, North Carolina, Personal Injuries

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