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 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

Late last month, in Thompson v. North American Stainless, the Supreme Court  unanimously concluded that firing a worker’s fiancé in retaliation for a sex discrimination claim filed by the worker is itself unlawful retaliation under Title VII.  The anti-retaliation provision of Title VII prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  The Court had little trouble concluding that “a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”  The Court also concluded that the plaintiff had the ability to sue under Title VII even though she herself was not fired.  This case is a good demonstration of the broad anti-retaliation protection provided by Title VII and similar employment laws.  (More coverage here.)

Categories: Judicial Decisions Tags: Associational Retaliation, Case Commentary, Labor and Employment, Retaliation, Sex Discrimination, Title VII, US Supreme Court

In the past year, the Equal Employment Opportunity Commission (EEOC) has seen 7.2 % in discrimination claims being filed with agency.  Coverage here.  The EEOC handles charges under Title VII, the ADA, the ADEA, the Equal Pay Act, and GINA.  EEOC Chair Jacqueline A. Berrien stated, “Discrimination continues to be a substantial problem for too many job seekers and workers, and we must continue to build our capacity to enforce the laws that ensure that workplaces are free of unlawful bias.”  Detailed statistics on the charges filed with the EEOC are available on its website.  The numbers show marked increases in charges involving disability discrimination and all types of retaliation.

And, in other interesting EEOC news, the EEOC recently brought a lawsuit against Kaplan Higher Education Corporation, accusing it of discriminating against black job applicants through the way it uses credit histories in its hiring process.  The EEOC alleges that Kaplan’s rejection of job applicants based on their credit history has “disparate impact” on black applicants.

Categories: General News Tags: ADA, ADEA, Credit History, Disability Discrimination, Disparate Impact, EEOC, Equal Pay Act, GINA, Labor and Employment, Retaliation, Title VII

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

On May 24, the Supreme Court issued two employment-related opinions.  The first, Lewis v. Chicago, concerned the filing deadline for disparate impact discrimination cases under Title VII.  The black firefighter plaintiffs in the case sought to challenge a written test used for determining promotions.  The question is whether their statute of limitations began running when the test was scored, or when the test results were actually used to determine promotion decisions.  Reversing the Seventh Circuit, the Court unanimously held (Scalia writing) that it was the latter because it was the use of the test results that could constitute an “employment practice” challengable under Title VII.  The case likely will return to the trial court, where the plaintiffs had originally won before the appeals.  Additional coverage is here.

The second case, Hardt v. Reliance Standard Life Insurance Co., concerns when plaintiffs in ERISA actions can receive attorneys’ fees for succeeding in their case.  ERISA (Employee Retirement Income Security Act) is the statue that governs employee benefits plans.  In this case, the plaintiff challenged the insurance company’s denial of her long-term disability benefits, and after a court found she would likely prevail, the insurance company awarded her the benefits.

In a nearly unanimous opinion (Thomas writing) reversing the Fourth Circuit, the Court held that a party who seeks to recover attorney’s fees in an ERISA case does not need to be a “prevailing party.”  Instead, a court may award fees and costs under the statute if the claimant has achieved “some degree of success on the merits.”  Thus, the trial court here was correct in awarding the plaintiff attorneys’ fees for basically succeeding in obtaining her benefits.  More coverage here and here.

Categories: Judicial Decisions Tags: Attorney Fees, Case Commentary, Disparate Impact, ERISA, Fourth Circuit, Labor and Employment, Long-term Disability Benefits, Racial Discrimination, Statute of Limitations, Title VII, US Supreme Court

The Fourth Circuit Court of Appeals recently issued a ringing opinion for employees in Merritt v. Old Dominion Freight Lines, a gender discrimination case until Title VII.  The Court’s discussion of gender discrimination, sex stereotyping, and a corporate culture of discrimination is excellent and will make very useful precedent.  A long-ish discussion is therefore in order.  As the Court stated though, the quick summary is that plaintiff “Deborah Merritt’s story is one of a certain grit and perseverance.”

Old Dominion is a nationwide trucking firm that employs thousands as “line haul” drivers and “pickup and delivery” drivers.  Line haul drivers travel across state lines and often spend nights and weekends away from home, while pickup and delivery drivers work locally and rarely work nights or weekends.  The pickup and delivery job requires more lifting and therefore is more physically demanding than line haul driver.

Merritt worked for Old Dominion for six years as a line haul driver based in Greensboro, North Carolina, before she sought a travel and pickup delivery driver job so she could spend more time at home. Beginning in 2002, Merritt applied for several open pickup and delivery positions at Old Dominion’s Lynchburg, Va., facility, but initially was turned down for jobs that went to less-experienced male drivers.  Various managers alleged stated that women were not suited to be pickup drivers.

Read more…

Categories: Judicial Decisions Tags: Case Commentary, Discrimination, Fourth Circuit, Gender, Greensboro, Labor and Employment, Pretext, Sex Stereotyping, Title VII, Trucking

In Whitten v. Fred’s, Inc., the Fourth Circuit issued an important ruling in a sexual harassment case.  The Court concluded that the company-defendant could held liable for sexual harassment by its manager, even if the manager did not have the authority to fire the harassed worker.   Although the Court was addressing state law claims, South Carolina anti-discrimination law mirrors federal law, and the Court based its decision on federal case law.  So, it seems that its decision would apply to federal Title VII claims as well.

The plaintiff Clara Whitten was an assistant manager at Fred’s, a department store.  Matt Green worked with Whitten as the store’s manager.  After being transferred to Green’s store, Whitten only worked two days at the store before she felt compelled to quit because of sexual harassment from Green.  Whitten alleged that Green rubbed his genitals against Whitten on two separate occasions, that Green punished her by changing her schedule and giving her undesirable tasks because Whitten did not want to spend any time alone with Green, and that Green was verbally abusive. Read more…

Categories: Judicial Decisions Tags: Bankruptcy, Case Commentary, Constructive Discharge, Fourth Circuit, Labor and Employment, Sexual Harassment, Title VII