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Of Interest: A Win For Dr. Seuss, Ruling On ‘Empire,’ Tax Cut Repercussions

Members of the Sports & Entertainment Law Section found the following recent third-party articles to be of potential interest to the Section.

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Recent Fourth Circuit Decisions

By Sean F. Herrmann

The 4th U.S. District Court of Appeals has been relatively quiet as of late, at least with respect to employment law, but there are two fairly recent decisions worth flagging. On Nov. 28, 2017, in a published decision, the Fourth Circuit affirmed the Western District’s grant of summary judgment in Penley v. McDowell County Board of Ed., No. 16-2034 (http://www.ca4.uscourts.gov/opinions/162034.P.pdf). Penley, the plaintiff below, was a teacher at McDowell County High School (“MHS”). After Penley allegedly made an inappropriate comment to his students, MHS suspended him in April 2013. MHS investigated the allegation and recommended that Penley be dismissed. Penley, in turn, brought action against MHS’ principal, superintendent, and board of education, alleging that MHS’ decisions were in retaliation for Penley’s political speech, which was his participation in political campaigns. Judge Cogburn found no credible evidence connecting Penley’s participation in political campaigns to his termination and granted summary judgment. Circuit Judges Wilkinson, Duncan, and Thacker affirmed the decision.

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Documents Do Not ‘Speak for Themselves’: Defeat Your Opponent’s Meaningless Objections to Requests for Admission

By Isaac Thorp

You served the following request for admission and got this response:

Request: Admit that the second paragraph of the contract attached as Exhibit A states: “… (verbatim quote).”
Answer:  The document speaks for itself.

Is this an appropriate objection?

Numerous federal courts have held that asserting that a document “speaks for itself” is not a proper objection to a request to admit that a document contains quoted language. In Miller v. Holzmann, 240 F.R.D. 1, 66 Fed. R. Serv. 3d 977 (D.C. Cir. 2006), plaintiff served a request for admission that a document contained language quoted in the request. The defendant objected on the grounds that the document “speaks for itself.” The court held that the objection was improper:

“It is astonishing that the objection that a document speaks for itself, repeated every day in courtrooms across America, has no support whatsoever in the law of evidence. . . . The tautological ‘objection’ that the finder of fact can read the document for itself to see if the quote is accurate is not a legitimate objection but an evasion of the responsibility to either admit or deny a request for admission, unless a legitimate objection can be made or the responding party explains in detail why it can neither admit nor deny the request.” Id. at 4.

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Recent Court Opinions

By Joseph S. Murray IV

A roundup of notable labor and employment law opinions from the past several weeks:

  • Schilling v. Schmidt Baking Co., No. 16-2213 (4th Cir. Nov. 17, 2017): Are employees who drive assorted vehicles in a mixed fleet—a fleet with vehicles weighing more and less than 10,000 pounds—entitled to overtime? Ruling: Yes, the SAFETEA–LU Technical Corrections Act of 2008 amended the FLSA so that employees who drive “in whole or in part” motor vehicles weighing 10,000 pounds or less are entitled to overtime. Court does not decide if there is some de minimis amount of time an employee can drive a vehicle that weighs less than 10,000 pounds and still be exempt.
  • Plotnick v. Computer Sciences Corp., No. 16-1606 (4th Cir. Nov. 8, 2017): ERISA case dealing with standard of review that applies to top-hat plan administrator’s benefits decisions. Ruling: No need to decide which method to use, plaintiffs lose no matter what.
  • Munive v. Fairfax County Sch. Bd., No. 17-1692 (4th Cir. Nov. 7, 2017) (unpublished): Employer’s failure to remove a reprimand letter as promised, which allegedly led to plaintiff not receiving a promotion, may constitute retaliation. Ruling: Pro se’s Title VII retaliation claim should not have been dismissed.
  • Freedman & Sons, Inc. v. NLRB, No. 16-2066 (4th Cir. Nov. 7, 2017) (unpublished): Court finds that NLRB’s ruling that employer discriminated against employee for engaging in protected activity and interfered with employee’s exercise of NLRA rights was supported by substantial evidence.
  • Trejo v. N.C. Dep’t of State Treasurer Ret. Sys. Div., COA16-1182 (N.C. Ct. App. Nov. 7, 2017): Does the State Disability Income Plan have the right to offset benefits by the amount of hypothetical Social Security disability payments? Ruling: State law at the time said the Plan must offset the “Social Security disability benefit to which the beneficiary might be entitled,” so plaintiff loses even if she didn’t receive Social Security disability benefits.
  • Randolph v. Powercomm Construction, Inc., No. 16-2370 (4th Cir. Oct. 31, 2017) (unpublished): Parties settle FLSA collective action claim for $100,000; plaintiffs had alleged damages of up to $790,000. District court awards attorney’s fees of $183,764. Defendant appeals. Ruling: District court failed to support decision to not deduct fees for work on dismissed plaintiffs’ claims from the award and improperly calculated the reduction based on the plaintiffs’ lack of success. Vacated and remanded.
  • Borzilleri v. Mosby, No. 16-1751 (4th Cir. Oct. 17, 2017): Assistant State’s Attorney (ASA) supports incumbent State’s Attorney in a bruising primary battle. Incumbent loses and his opponent promptly terminates ASA upon taking office. ASA sues claiming violation of 1st Amendment. Ruling: ASAs are policymakers who are exempt from the First Amendment’s protection against patronage dismissals.
  • Wray v. City of Greensboro, No. 255A16 (N.C. Aug 18, 2017): City claims sovereign immunity in lawsuit by former police chief seeking reimbursement for legal costs. City has resolution stating it will provide for the defense and indemnity for police officers sued based on their actions taken within the scope and course of their employment. Ruling: The resolution is part of the employment contract, and since sovereign immunity is not a defense in a contract claim, plaintiff can proceed with claim.

 

 

 

Triple Canopy and Evolving Standards of Materiality Under the Civil False Claims Act (FCA)

By Joan H. Krause

In Universal Health Services v. United States ex rel. Escobar (UHS), the Supreme Court upheld the Civil False Claims Act (FCA) theory of “implied certification,” under which the submission of a claim for reimbursement “implies” that the claimant is in compliance with the statutes, regulations, and contract provisions necessary for that claim to be paid. Escobar was filed by the parents of a young woman who died after receiving Medicaid-covered mental health treatment from a Massachusetts clinic that violated state licensing and supervision regulations. Her parents alleged that the clinic’s claims were fraudulent because they implicitly (and falsely) represented that the facility was in compliance with the relevant provisions. A district court dismissed the suit, but the First Circuit reversed. In a unanimous opinion written by Justice Thomas, the Supreme Court held that where a defendant “makes specific representations about the goods or services provided, but knowingly fails to disclose . . . noncompliance with a statutory, regulatory, or contractual requirement[,] . . . liability may attach if the omission renders those representations misleading.”  But cautioning that such misrepresentations must be “material to the Government’s payment decision,” the Court reversed and remanded because the First Circuit had applied an impermissibly broad test.

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Fourth Circuit Court of Appeals Deals Significant Blow To Traditional Contractor-Subcontractor Relationship

  By Arty Bolick and John Ormand

On January 25, 2017, the Fourth Circuit Court of Appeals[1], dealt a significant blow to the traditional contractor-subcontractor relationship.  In finding a contractor and subcontractor could be considered “joint employers” of the subcontractor’s workers for purposes of the Fair Labor Standards Act (“FLSA”), the court’s decision has opened a pandora’s box of potential wage and hour issues, including claims for overtime pay against contractors and higher tier subcontractors from the employees of lower tier subcontractors. Read more

Of Interest: Redskins Name, Aggies Call Audible, Supremes Hear Betting Case

Sports & Entertainment Law

Members of the Sports & Entertainment Law Section found the following, recent third-party articles to be of potential interest to the section:

Why the Redskins Scored a Victory In the Supreme Court’s Ruling In Favor Of The Slants 

“12th Man” Suit Forces Aggies To Call an Audible On Traditional Copyright Defenses 

U.S. Supreme Court To Hear Major Sports Betting Case 

Sports Teams Can Deduct Full Cost Of Pre-Game Meals for Traveling Employees At Hotels At Away Games

Can’t Say “I Ain’t Mad At Cha” For Copying Me

Jordan-Benel v. Universal City Studios, Inc.

The (Exempt) Boys of Summer: 9th Circuit Upholds Minor League Baseball Antitrust Exemption In Wage Suit

SEC Confirms Sales of NFL Fan Memberships Fall Outside of Securities Act

Gene Simmons Claims Gesture

Indiana’s Slow Implementation of Fantasy Sports Law

Chris Spielman’s Lawsuit Against Ohio State Could Set Monumental Precedent

Overview of Changes To Nevada Gaming Law

Celebrity Influencers Continue to Flout FTC Disclosure Rules

 

The Devil and the Details: Constructive Discharge, Punitive Damages and the Mark Of the Beast

By Kevin P. Murphy

According to Revelation, the wild beast will seduce mankind to follow its evil ways and will cause everyone, small and great, wealthy and poor, free and servant, to have the Mark of the Beast imprinted on their right hand or on their foreheads. Revelation 13:11-18. According to the 4th Circuit, career coal miner Beverly Butcher Jr. had the right to opt out of a new biometric hand scanner policy implemented by Consol Energy, Inc. in light of his sincerely held religious belief that placing his hand in this scanner would mark him as a follower of the antichrist, to be tormented with fire and brimstone for all eternity. U.S. EEOC v. Consol Energy, Inc., No. 16-1230 (4th Cir. June 12, 2017).

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Section 1557 Of the ACA, Association Discrimination, and Health Insurance Coverage For an Employee’s Dependent With Gender Dysphoria

By Joseph S. Murray IV

The regulations implementing Section 1557 of the Affordable Care Act (“ACA”) prohibit covered health insurance providers from discriminating against individuals based on gender identity (which is defined as sex discrimination) and require covered entities to treat individuals in accordance with their gender identity. 42 U.S.C. § 18116 & 45 C.F.R. § 92 et seq. Based on these requirements, covered health benefit plans cannot limit or exclude medical services related to gender dysphoria and gender transition. Employees and their covered dependents can directly sue employers and benefit plans to enforce the Section 1557 non-discrimination provisions.[1]

But what if Section 1557 does not apply to an employee’s health benefit plan? Can employees use association discrimination claims to require their employers’ health benefit plans to cover gender transition surgery and related medical treatments for the employees’ dependents?[2] In a recent case, the 8th Circuit Court of Appeals upheld the dismissal of an employee’s Title VII association discrimination claim since such claims are based on the employee’s own protected status.

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Fourth Circuit Provides Guidance On Return to Work Pursuant to FMLA

By Sabrina Presnell Rockoff

On May 16, 2017, the 4th Circuit issued an opinion in Waag v. Sotera Def. Solutions, Inc., 2017 U.S. App. LEXIS 8587, providing further guidance regarding an employer’s responsibilities to return an employee to work following FMLA leave.

Mr. Waag brought the action against his former employer, Sotera Defense Solutions, Inc., a federal defense contractor, alleging a violation of the Family Medical Leave Act by not restoring him to his position when he returned from a medical leave; by placing him in a job that was not equivalent to the one he held before the leave; and by terminating him from the new job because he took medical leave.  The District Court for the Eastern District of Virginia granted summary judgment to the employer.  The 4th Circuit affirmed.

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