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 ( 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.

On November 28, 2017, the Fourth Circuit also issued an unpublished, per curiam, opinion in Tillery v. Piedmont Airlines, Inc., No. 16-2225 (, affirming summary judgment for the company. There, the plaintiff/appellant brought age discrimination claims under the Age Discrimination in Employment Act and race discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The Fourth Circuit affirmed the race discrimination holding because the plaintiff/appellant, it said, could not make out a prima facie case of discrimination. Tillery, an African American, was replaced by other African American employees. The Fourth Circuit affirmed the retaliation holding largely because the protected activity took place more than a year and a half before the termination. Finally, the Fourth Circuit affirmed the district court’s dismissal of the age discrimination claim because the plaintiff/appellant failed to establish pretext.