By Joseph S. Murray IV

The courts have been busy so far this year with employment law decisions. Here are some of the latest:

Digital Realty Trust, Inc. v. Somers, No. 16-1276 (U.S. Feb. 21, 2018): If you want whistleblower protections under the Dodd-Frank Wall Street Reform and Consumer Protection Act, then you’d better blow your whistle at the Securities and Exchange Commission.

Balabed v. Eden Park Guest House, LLC, No. 17-1187 (4th Cir. Jan. 25, 2018): How much was Balabed’s bed worth? The 4th Circuit deep dives into the FLSA’s regulations on credit for lodging as wages.

Hernandez v. Fairfax County, No. 17-1152 (4th Cir. Jan. 30, 2018) (unpublished): Physical invasion of space, sexually suggestive comments, rumors of an inappropriate sexual relationship, stalking, inadequate remedial action, disproportionate discipline following report of sexual harassment, oh my! Summary judgment inappropriately granted on Hernandez’s Title VII sexual harassment and retaliation claims.

Fleming v. Spencer, No. 16-2316 (4th Cir. Feb. 7, 2018) (unpublished): Should a federal employee appeal to the Merit Systems Protection Board or the Office of Special Counsel when he is unhappy with an agency’s personnel action? Pick the wrong one and you’ve failed to exhaust statutory remedies under the Civil Service Reform Act, which results in a dismissal for lack of jurisdiction.

Waters v. Logistics Management Inst., Nos. 16-2353 & 17-1056 (4th Cir. Feb. 9, 2018) (unpublished): 10 years of written criticism of Waters’ management skills makes it difficult for him to prove his termination was based on age, even if the CEO made a comment about “[p]eople with grey hair.” Summary judgment on Waters’ ADEA discrimination and retaliation claims upheld.

Rayyan v. Virginia DOT, No. 17-1132 (4th Cir. Feb. 13, 2018) (unpublished): Supervisor (allegedly) makes repeated comments that Rayyan was a “‘dumb’ or ‘stupid’ ‘Arab’” contemporaneously with other remarks that she wanted Rayyan gone. But since the supervisor managed Rayyan for less than two months after he was already on a last chance performance improvement plan, these comments are insufficient to overcome the strong connection between Rayyan’s performance and termination. Summary judgment upheld on Rayyan’s Title VII race and religion claims.

Norfolk S. Ry. Co. v. Sprint Communications Co., No. 16-2107 (4th Cir. Feb. 22, 2018): This is a Federal Arbitration Act (FAA) case. Arbitrator who reserves the right to change his decision without prejudice or time limit subject to two extraordinary assumptions has not issued a final arbitration award; therefore, a court cannot enforce the award under the FAA. The 4th Circuit reversed the district court’s decision and instructed the parties to obtain a final, FAA-compliant award.

Butler v. Scotland County Bd. of Educ., No. COA17-501 (N.C. Ct. App. Feb. 6, 2018): Ignorance of which provisions of the Administrative Procedure Act (APA) the court may “borrow” to fill in the procedural gaps of N.C. Gen. Stat. § 115C-325.8[i] is no excuse. Former teacher’s appeal was properly dismissed for failing to adhere to the (previously never ruled on) APA requirements.

Norman v. N.C. Dept. of Admin., No. COA17-328 (N.C. Ct. App. Feb. 6, 2018): Waiting until your pre-dismissal conference to first report your manager’s sexual harassment rarely saves your job or creates Title VII liability for the employer. This case isn’t the exception; summary judgment upheld on Norman’s Title VII sexual harassment and retaliation claims because she failed to timely report the harassment.[ii]

Whitehurst v. East Carolina Univ., No. COA17-629 (N.C. Ct. App. Feb. 6, 2018): Negative media coverage of Whitehurst’s actions doesn’t allow ECU to bootstrap Whitehurst’s one “unacceptable personal conduct” and one “not unacceptable personal conduct” into just cause for termination. ALJ’s decision to reverse ECU’s dismissal and reinstate Whitehurst, but with a demotion, upheld.

[i] This statute deals with a teacher’s right to appeal final decisions of a local board of education to the superior court.

[ii] Her quid pro quo claim was also dismissed, in part, because the manager’s alleged pro quid quo comments were not sexual in nature.