Posts

Fourth Circuit Reaffirms Scope of Retaliation Protections in Title VII Opinion

By Andrew Henson

In the recent opinion Strothers v. City of Laurel, Maryland, 895 F.3d 317, (4th Cir. 2018), the Fourth Circuit gave further articulation to the type of facts which can permit a retaliation claim under Title VII to survive summary judgment, particularly what can pass under the “severe or pervasive” prong of a complaint of hostile work environment which caused the subsequent retaliation. In that case, Strothers, a black woman, was hired as an administrative assistant to work for the City of Laurel, Maryland. Soon after her hiring, Strothers found herself subjected to meticulous scrutiny by Koubek, her white supervisor, who chided her about aspects of the dress code (including an allegation that she grabbed at Strothers’ pants), required reporting of bathroom breaks, and changed the time that Strothers needed to report to work from 9:05 a.m. to 8:55 a.m. and reported on Strothers for minor instances of tardiness. After Strothers made a complaint about the foregoing “harassment” she received from Koubek, she was terminated the following day.

Read more

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.

Read more

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.

 

 

 

4th Circuit: Alleged Sexist Remarks Insufficient To Support Employee’s Title VII Claims

,

By Zachary Anstett

A recent Fourth Circuit decision held that alleged statements from a supervisor that included, “We don’t want women working in the morning” and “I don’t want three women on my schedule,” were not sufficient to support a plaintiff’s claims of discrimination or harassment in violation of Title VII. In the unpublished opinion issued October 10, 2017, the Fourth Circuit also stated that placing the plaintiff on a Performance Improvement Process (“PIP”) did not constitute an adverse action that could support her discrimination or retaliation claims. The panel, consisting of Judges Niemeyer, Traxler, and Keenan, affirmed the District Court’s grant of summary judgment for the employer.

Read more

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.

Read more

4th Circuit Jumps To Conclusion That Sham Affidavit Rule Applies To Unsworn Statements

By Joseph S. Murray IV

Does a pre-litigation, unsworn statement constitute “testimony” sufficient to invoke the sham affidavit rule when a party subsequently testifies in an inconsistent manner? Instead of addressing this important question, both the majority and dissent in Wilson v. Gaston County, No. 15-2522 (4th Cir. April 13, 2017) (unpublished), assume that prior written statements of the plaintiff can be considered “testimony” for purposes of invoking the sham affidavit rule. By failing to make this initial inquiry, the court used the sham affidavit rule to sweep away a party’s deposition testimony in favor of two written statements that were not given under oath.

The 4th Circuit first invoked the sham affidavit rule[1] when it stated “[a] genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the [party’s] testimony is correct.” Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (emphasis added). The use of the word “testimony” is not by accident and has a specific meaning: “evidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition.” Black’s Law Dictionary 1485 (7th ed. 1999). In fact, the 4th Circuit has specifically stated that statements not given under oath and not subject to cross-examination are not equivalent to deposition testimony, and as such, that applying the sham affidavit rule in such contexts is inappropriate. Shockley v. City of Newport News, 997 F.2d 18 (4th Cir. 1993); see also Leslie v. Grupo ICA, 198 F.3d 1152 (9th Cir. 1999). Heeding these principles, virtually all courts have required both versions of the facts to take the form of “testimony,” such as depositions versus affidavits[2], contradictions within sworn statements[3], testimony versus sworn EEOC charge[4], and affidavit versus verified document[5]. But see McDevitt & St. Co. v. Seaboard Sur. Co., 1995 U.S. App. LEXIS 15076 (4th Cir. June 19, 1995) (misquoting Barwick while invoking sham affidavit rule when an affidavit directly contradicted the language in letters between the parties); Williams v. Genex Servs., LLC, 809 F.3d 103 (4th Cir. 2015) (sham affidavit rule invoked when plaintiff’s testimony conflicted with her resume).

Read more

Fourth Circuit Announces New Standard Assessing Joint and Several Liability for Joint Employers

By Jennifer Cotner

On January 25, 2017, the 4th Circuit U.S. Court of Appeals issued two game-changing companion decisions impacting the test for determining joint and several liability under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§201, et seq., for joint employers.

Salinas, et al. v. Commercial Interiors, Inc., et al., No. 15-1915

In Salinas, the plaintiffs were employees of J.I. General Contractors, Inc. (“J.I.”), a drywall installation contractor.  Plaintiff sued J.I. and Commercial Interiors, Inc. – a company offering general contracting and interior finishing services, including drywall installation – in this putative collective action as joint employers, alleging violations of the FLSA and Maryland law.  The U.S. District Court of Maryland granted summary judgment to Commercial, holding that it did not jointly employ plaintiffs because J.I. and Commercial Interiors were in a traditional contractor-subcontractor relationship not intended to evade compliance with the FLSA.

Read more