Appellate Update

By Joe Murray

It’s our semi-regular roundup of appellate decisions, with two non-appellate highlights at the end.

McCaffery v. Chapman, No. 17-2198 (4th Cir. April 9, 2019) (1st Amendment): Why does anyone want to be a sheriff’s deputy? It seems to have all the negatives of being a government employee with even fewer benefits. McCaffrey supported Sheriff Chapman’s political opponent during an election campaign. After Sheriff Chapman won, he did not reappoint McCaffrey as a deputy sheriff. McCaffrey sued, alleging that Sheriff Chapman’s failure to reappoint him violated his First Amendment rights to freedom of political association and speech. The 4th Circuit upheld the dismissal of McCaffrey’s political association claim based on the Elrod-Branti doctrine, which allows public officials to terminate public employees who meet certain criteria for supporting a political opponent. The court easily dismissed McCaffery’s Pickering-Connick retaliation (political speech) claim since once the Elrod-Branti doctrine applied “the Pickering balance generally tips in favor of the government because of its overriding interest in ensuring an elected official’s ability to implement his policies through his subordinates.”

Irani v. Palmetto Health, No. 16-2439 (4th Cir. April 10, 2019) (unpublished) (1981, Title VII): Why write 55 pages and then release the opinion per curiam? The 4th Circuit moves in mysterious ways. In his 18 short months as a resident at Palmetto Health, Dr. Irani racked up at least eight patient care incidents—one of which resulted in the patient requesting to be transferred to a different hospital, was placed on two suspensions, and was placed on two separate academic remediations. Oh, and his supervisor made two discriminatory comments. After Palmetto Health terminated Dr. Irani, he filed suit, asserting claims of disparate treatment and hostile work environment pursuant to Title VII and retaliation pursuant to 42 U.S.C. § 1981 and Title VII. As for the hostile work environment claim, the court concluded that the supervisor’s comments were odious, but not severe or pervasive, the statements did not relate to the work—they were like “simple teasing,” and Dr. Irani could not link the comments to the hostile environment. On the disparate impact claim, the court found Dr. Irani could not meet his prima facie burden since he could not show he was meeting expectations, notwithstanding his expert’s opinion, nor could Dr. Irani identify any comparator employees. Finally, on the retaliation claim, the court found that Dr. Irani’s reliance on temporal proximity was misplaced because the timing of the adverse action was due to deadlines set by Palmetto’s policies.

Haynes v. Waste Connections, Inc., No. 17-2431 (4th Cir. April 23, 2019) (Title VII): I wrote about this case here.

Lamps Plus, Inc. v. Varela, No. 17-988 (U.S. April 24, 2019) (Federal Arbitration Act): While not an employment case, the Supreme Court’s decision will affect arbitration agreements between employers and employees. If the agreement to arbitrate is “ambiguous” on the issue of class arbitration, then the parties have not agreed to class arbitration.

Cochise Consultancy, Inc. v. United States ex rel. Hunt, No. 18-315 (U.S. May 13, 2019) (False Claims Act): The False Claims Act has two statutes of limitations: (1) an action must be brought within six years of the statutory violation, or (2) an action must be brought within three years after the appropriate United States official knew or should have known the relevant facts of the violation. There was a circuit split on how these statutes of limitations applied to qui tam suits in which the United States does not intervene (so called nonintervened suits). The 4th Circuit took the interpretation that such actions must be filed within six years after the violation and the second statute of limitation did not apply to nonintervened suits. The Supreme Court clarified the issue by holding that both statutes of limitations apply to nonintervened suits, and whichever period provides the later date serves as the limitations period.

Chin-Young, v. USA, No. 17-2013 (4th Cir. May 14. 2019) (unpublished) (MSPB): Federal employees can challenge certain employment actions to the Merit Systems Protection Board (“MSPB”). If the employee wants to challenge procedural defects in the MSPB’s hearings or decision or to enforce a settlement, then the employee must seek review before the Federal Circuit. If the employee wants to make such a challenge and also alleges that discrimination caused the adverse action (a “mixed case”), then the employee can seek judicial review by a district court with jurisdiction under the relevant antidiscrimination statute. But how do you determine if a case is mixed? The 4th Circuit analyzed two recent Supreme Court cases to find that a court must review the allegations in the complaint to determine if the case is mixed.

Layton v. Dep’t of State Treasurer, No. COA18-921 (N.C. App. May 21, 2019) (unpublished) (TSERS): You’ll be shocked to learn that a 180-day statutory deadline to file for long-term disability benefits under the Teachers’ and State Employees’ Retirement System is constitutional as it is rational and has a legitimate purpose.

Westmoreland v. TWC Administration LLC, No. 18-1600 (4th Cir. May 22, 2019) (ADEA): Sean Herrmann wrote a good post on this case. I will croak back a little on behalf of employers. This decision, along with some other recent decisions, shows the 4th Circuit is slowly rolling back the DeJarnette v. Corning, Inc., 133 F.3d 293 (4th Cir. 1998), limitation on second-guessing employment decisions. In fact, the 4th Circuit explicitly states that this is the new norm: “the jury could reasonably have questioned whether firing Westmoreland for one infraction that did not require termination ‘was such an extreme overreaction as to be pretextual.’” This quote will be used repeatedly to justify allowing a jury to sit as a “super-personnel department weighing the prudence of employment decisions.”

Fort Bend County v. Davis, No. 18–525 (U.S. June 3, 2019) (Title VII): Did you get the “breaking news” emails stating that the Supreme Court had eliminated the need for claimants to file a charge with the EEOC prior to filing suit? Unsurprisingly, those clickbait emails were wrong. Claimants still need to file their charges. Employers, however, need to raise defenses based on defects in the EEOC charge or the claimant’s failure to file with the EEOC in a timely fashion or they will be waived.

Bonus 1: Former Labor and Employment Section member [1] Geraldine Sumter won a jury verdict against the City of Charlotte (Charlotte-Mecklenburg Police Department) recently. The award is currently at $1,796,376, which includes the jury’s verdict, as well as back pay, front pay, and federal income tax adjustment; the motion for attorney’s fees is pending. Tinsley v. City of Charlotte, No. 3:16-CV-00656-GCM, 2019 U.S. Dist. LEXIS 70892 (W.D.N.C. Apr. 26, 2019).  In addition to the monetary award, Judge Mullen ordered that CMPD is required to place a copy of the jury’s verdict in the plaintiff’s personnel file and that it be disclosed anytime CMPD provides information regarding the plaintiff’s disciplinary history or termination. Judge Mullen’s summary judgment opinion is worth a read, especially his determination that the Internal Affairs investigator was a common decision maker for purposes of finding that plaintiff identified a comparator employee. Tinsley v. City of Charlotte, 2018 U.S. Dist. LEXIS 188922 (W.D.N.C. 2018).

Bonus 2: The New York Times had an article last week about age discrimination, New Evidence of Age Bias in Hiring, and a Push to Fight It, that is worth reading.


[1] Did you hear that starting with the new fiscal year (July 1) you can select one NCBA section for free? If you like our blog and practice (or want to practice) employment law, please join the Labor and Employment Section.