Appellate Update

By Joe Murray

The court opinions have been sparse lately, and none of them are earth shattering. But here they are:

Davis v. NC Dep’t of Health & Hum. Servs., No. COA19-449 (N.C. App. Dec. 17, 2019) (unpublished) (Human Resources Act): DHHS terminated Davis for manually lifting a patient from his wheelchair to his bed in violation of specific medical orders. While Davis’s actions provide the just cause needed for discipline, DHHS previously suspended a similarly situated employee for the same conduct. Due to the different treatment of similarly situated employees, the court of appeals upheld the ALJ’s ruling to reinstate Davis and suspend her for two days.

Brown v. Fayetteville State Univ., No. COA19-13 (N.C. App. Jan. 7, 2020) (Human Resources Act): The court of appeals holds that the after-acquired-evidence doctrine first announced in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), may be used in contested cases under the Human Resources Act. The McKennon rule does not eliminate liability; it only limits the remedy of an employee who was wrongfully discharged.

Wojcicki v. SCANA/SCE&G, No. 17-2045 (4th Cir. Jan. 14, 2020) (False Claims Act): Rejoice, attorneys: we’re necessary! Pro se plaintiffs cannot maintain qui tam actions under the False Claims Act because a pro se plaintiff cannot represent the government’s interest.

Maness v. The Vill. of Pinehurst, No. 19-157 (N.C. App. Jan. 21, 2020) (unemployment): Employee leaves work believing he is suspended. Employer believes employee quit. How to determine if an employee “left work for a reason other than good cause attributable to the employer” when the parties dispute if the employee actually quit? The court of appeals holds “that when there is a fact dispute concerning whether an employee’s statements or conduct amounted to ‘leaving work’ under the statute, the dispute must be resolved by determining whether a reasonable person would have believed the employee left work.”

Davis v. American Airlines, Inc., No. 19-1739 (4th Cir. Jan. 31, 2020) (unpublished) (ADA): The 4th Circuit again makes clear that employees must allege that a discriminatory act occurred within 180 days prior to filing a charge with the EEOC. The court also found that an employee cannot bootstrap the untimely claim by pointing to actions taken after the charge was filed.

Carrington v. Carolina Day Sch., Inc., No. 19-666 (N.C. App. Feb. 4, 2020) (unpublished) (employment contract): Carrington, a former CDS coach, alleged that he had an implied contract with CDS for the 2018–2019 season because he performed off-season tasks (which he had done in prior years). CDS did not renew his contract (and fired him), and he sued CDS for breach of contract and several other claims. The court of appeals easily upheld dismissal of the case because there was no implied contract for the 2018–2019 season based on prior dealings, and even if there was an implied contract, it was for at-will employment.

Bonus: The 2nd Circuit has issued two interesting FLSA opinions in the past couple of months. In Yu v. Hasaki Restaurant, Inc., No. 17-3388 (2nd Cir. Dec. 6, 2019), the court held that FLSA cases resolved through Rule 68 offers of judgment do not require judicial approval. And in Fisher v. SD Protection Inc., No. 18‐2504 (2nd Cir. Feb. 4, 2020), the 2nd Circuit held that district courts cannot rewrite the terms of FLSA settlement agreements—they must either approve or reject them—and there is not a proportionality limit on recoverable attorneysʹ fees (e.g., attorneys’ fees are not limited to 33% of the total recovery).

Bonus 2: Regardless of which side you represent, I recommend reading the opinion in Abernathy v. DoorDash, Inc., No. C 19-07545 (N.D. Ca. Feb. 10, 2020). DoorDash required its “independent contractors” to agree to mandatory arbitration that prohibited class actions as part of the click-through terms of becoming a courier. Doordash then balked at arbitration when over 6,000 of the couriers filed individual arbitration actions alleging they were improperly classified, which required DoorDash to pay $12 million in administrative fees. The judge wasn’t impressed with DoorDash’s actions:

For decades, the employer-side bar and their employer clients have forced arbitration clauses upon workers, thus taking away their right to go to court, and forced class-action waivers upon them too, thus taking away their ability to join collectively to vindicate common rights. The employer-side bar has succeeded in the United States Supreme Court to sustain such provisions. The irony, in this case, is that the workers wish to enforce the very provisions forced on them by seeking, even if by the thousands, individual arbitrations, the remnant of procedural rights left to them. The employer here, DoorDash, faced with having to actually honor its side of the bargain, now blanches at the cost of the filing fees it agreed to pay in the arbitration clause. No doubt, DoorDash never expected that so many would actually seek arbitration. Instead, in irony upon irony, DoorDash now wishes to resort to a class-wide lawsuit, the very device it denied to the workers, to avoid its duty to arbitrate. This hypocrisy will not be blessed, at least by this order.