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.)

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.

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.

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.

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.

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.

Finally, Old Dominion hired Merritt to fill a permanent pickup position in Lynchburg.  However, Merritt was placed on a ninety-day probationary period and told she could lose her job if any performance problems arose.  Male drivers were not subject to similar probationary terms.  For the next two years, Merritt performed her pickup duties without a problem.  Unfortunately, she then suffered an ankle injury at work.  She was put on light duty work by her doctor for a couple of months later, and then he gave her a clean bill of health.

When Merritt attempted to return to her regular duties, Brian Stoddard, Vice President of Safety and Personnel, required her to take a physical ability test (“PAT”), a full-body test divided into six components that evaluates the test taker’s general strength, agility, and cardiovascular endurance.  The test was graded on a pass/fail basis.  The PAT was created for Old Dominion to be used in the hiring process and had been used to evaluate potential hires, but only on a variable basis.  Male employees who had previously returned to work from injuries were not required to take the test.  When Merritt failed this test, she was fired.

Merritt sued under Title VII, alleging sex discrimination, but the federal trial court dismissed Merritt’s claim, saying she failed to prove her boss “harbored any discriminatory animus” or that Old Dominion’s use of the gender-neutral PAT test was a pretext for bias.  The Fourth Circuit reversed, holding instead that Merritt presented a genuine issue of material fact about whether the company fired her because of sex.  The Court found both that Merritt successfully undermined the company’s use of the PAT to deny her return to work and that there was circumstantial evidence of sex bias.

According to the Court, Merritt produced plenty of evidence that Old Dominion’s explanation for her discharge was “unworthy of credence.” For example, Merritt’s doctor stated that there was nothing about Merritt’s medical condition which would have prevented her from returning to work. As the Court explained: “Old Dominion terminated a good employee who, pre-injury, performed her job ably and without complaint and who, post-injury was both willing and able to report to this same job for work. These facts, if believed, would allow a jury to think Old Dominion was simply looking for a reason to get rid of Merritt.”

Merritt further cast doubt on the legitimacy of the PAT test by showing that injured male employees did not have to take the PAT and that use of the PAT for injured workers was not a genuine company policy.  “While a neutral policy serving Old Dominion’s legitimate business interests in public and employee safety could certainly be put in place, a trier of fact could reasonably find that Old Dominion’s selective application and ever-changing rationales for the PAT were designed to conceal intent to reserve the plum Pickup and Delivery positions for male drivers.”

The Court also pointed to Merritt’s evidence of a corporate culture of discrimination at Old Dominion: “It is not unfair to observe that the corporate culture evinced a very specific yet pervasive aversion to the idea of a female Pickup and Delivery Drivers. Old Dominion employees, of all ranks, seemed to share a view that women were unfit for that position.”

The panel artfully summarized:

Our holding is not about setting tripwires whenever an employer fails to dot its ‘i’s’ or cross its ‘t’s’ in following a policy. It is not about taking a fine-toothed comb to the record in the hopes of unearthing some minor discrepancy in an employer’s story. And it is certainly not about infusing fear and trembling into a company’s every employment decision.

But the alleged facts here are too problematic to overlook. Evidence of a good employee record combines with evidence of an impermissible company attitude to form a lethal concoction. Old Dominion fired an employee who was, according to the district court, ‘able to do her job without assistance and in a satisfactory manner,’ due to a treatable ankle injury, while hiding behind the results of a selectively administered physical fitness test that did not even purport to test the injury, and while dubiously claiming that its decision was compelled by a late-blooming policy, all in the context of, to put it mildly, a sexually stereotyped work environment. In this case, it is not any single piece of evidence but rather the evidence taken in its entirety that leads us to believe Merritt deserves a trial.

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.Whitten contacted the district manager, who was Green’s supervisor, and told the district manager of Green’s actions.   The district manager responded by telling Whitten that she was over-reacting.  Believing that the district manager would not rectify the situation, Whitten felt no choice but to quit.  After Whitten quit, she filed a sexual harassment complaint with the EEOC, which forwarded the complaint to the the South Carolina Human Affairs Commission.

As an initial matter, the Court considered whether Whitten’s sexual harassment claims were filed in time.  The Court held that the EEOC forwarding of Whitten’s complaint was sufficient to have it filed there, and that her state law claim was timely filed within one year of the discrimination.  Whitten also sufficiently disclosed the existence of her sexual harassment claim in her bankruptcy case.  (This is another important reason why bankruptcy law is important for employment lawyers to be aware of.)

In a sexual harassment case, a key issue is whether the company can held responsible for the harasser’s actions.  Key to that determination is whether the harasser is the plaintiff’s manager, or just a co-worker.  Fred’s argued that Green was not Whitten’s supervisor because Green did not have the power to hire, fire, or alter the terms of Whitten’s employment.  The Court rejected this bright line rule as to what constitutes a supervisor.  Examining the entire relationship between Green and Whitten, the Court noted that Green had the power to assign tasks to Whitten, had the power to alter Whitten’s schedule, and that their relationship was described as manager and assistant manager.  The Court noted that the issue was not even close and, as a matter of law, Green was Whitten’s supervisor.

The Court then remanded the case for trial.  Because there was no tangible employment action and no official act precipitating the asserted constructive discharge, Fred’s will be entitled to assert the affirmative defense to liability and damages as set forth by the Supreme Court in Faragher and Ellerth.