Wake Forest Law Review

by: Marcia Zug

Men and women are not equal in immigration law, and the Supreme Court has long upheld these distinctions. In fact, since 1977, the Court has heard four immigration-based sex discrimination cases and sustained the challenged provision every time.[1]  The Court even upheld one provision twice, just so it could more fully articulate the basis for its decision.[2]  This summer, the Court decided a fifth immigration-based sex discrimination challenge.[3]  The case, Sessions v. Morales-Santana[4], concerned an Immigration and Nationality Act (INA) provision distinguishing between unmarried fathers and mothers with regard to the transmission of citizenship.[5]  The Court had not previously considered this particular provision.  Nevertheless, given the Court’s history of upholding similar gender distinctions, Morales-Santana seemed poised to become the fifth case affirming the constitutionality of immigration law’s gender distinctions.  Instead, the Court declared the challenged provision unconstitutional.[6]

As the cases on transmission of citizenship demonstrate, gender plays a surprisingly important, and arguably unjust, role in immigration law.  Explicit gender divisions and gender stereotypes are widespread.[7]  However, prior to Morales-Santana the Court consistently upheld these distinctions.[8]  Consequently, despite the limited scope of Morales-Santana (it only applies to a single INA provision and does not overturn the Court’s previous cases), the case is important.  It indicates that the Court is no longer willing to excuse or attempt to rationalize immigration law’s widespread gender discrimination.

Immigration law’s long history of gender bias, means the possibilities for discrimination claims are numerous.  Accordingly, it may be no coincidence that Morales-Santana, which finally confirms gender as an effective means of challenging discriminatory immigration laws, was decided only days before Trump v. International Refugee Assistance Project.[9]  International Refugee limited the scope of the government’s proposed travel ban[10] and demonstrated the Court’s concern with the current administration’s attempts to restrict immigrant rights.  Nevertheless, it is the Morales-Santana decision that provides the means to actually challenge the application of these restrictive immigration policies.[11]

The relevance of a gender discrimination claim to the travel ban is not immediately obvious.  Both the ban and its exemptions are gender neutral.[12]  However, family-based exceptions to immigration restrictions, similar to the ones applicable to the travel ban, have long been based on prejudices and stereotypes about the relative benefits of male versus female immigrants.[13]  If the State Department’s visa determinations mimic these historic practices, this could serve as the basis for a gender discrimination challenge, and there are already strong indications that gender will play an important role in the visa decision-making process.

Initially, the travel ban excluded all travelers from six countries: Yemen, Somalia, Iran, Libya, Sudan, and Syria.[14]  This blanket ban was then challenged in International Refugee, and the Court held it must include exemptions for “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”[15]  The Court then added that employment, educational, or familial relationships could all potentially meet the definition of “bona fide relationship.”[16]

After receiving the International Refugee Court’s decision, the State Department issued a memo declaring the family relationship exemption limited to “close family.”[17]  It then defined “close family” as “a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half.  This includes step relationships.”[18]  Other family relationships including “grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-laws and sisters-in-law, fiancés and any other ‘extended’ family members” were excluded.[19]  When asked where these distinctions originated, the government stated they were based on the long-standing family preference categories of the INA.[20]

The State Department’s focus on the family relationship category, as opposed to the educational or employment category, is understandable.[21]  Most U.S.-bound immigrants and refugees have at least one family member in the U.S.,[22] and it is likely that the majority of travel ban exemptions will arise under this group.[23]  Consequently, by limiting the class of qualifying relationships, the State Department can significantly reduce the number of aliens eligible for these exemptions.[24]

Critics of the ban were quick to condemn this strategy.  They objected to the government’s narrow definition of close family relationships and to the exclusion of fiancés and grandparents in particular.[25]  The State Department’s reaction to these criticisms was revealing.  Shortly after issuing the memo, the State Department revised the qualifying relationship definition to include fiancés,[26] but it refused to consider including grandparents.[27]  It then defended this distinction by arguing that the inclusion of fiancés, but not grandparents, was supported by immigration history.[28]  This is correct.[29]  However, the history the Department relied upon is highly problematic.

Historically, fiancé exemptions were limited to females and grounded in gender stereotypes that deprived women of their rights and agency.[30]  Beginning in 1855, U.S. immigration law granted foreign women married to American men automatic American citizenship.[31]  The 1855 Act was based on the doctrine of coverture, which decreed that married women had no right to a legal or political identity of their own.  According to this doctrine, a husband and wife were legally one person and that person was the man.[32]  A married woman’s identity was treated as “covered” by her husband’s; thus, when a foreign woman married an American citizen she became an American citizen as well.[33]  Similarly, because the law of coverture stated that a woman’s primary loyalty was to her husband, marriage to an American man was seen as a demonstration of her commitment to America and her worthiness to become a citizen.[34]

Tellingly, the reverse was never true.  Under the doctrine of coverture, the male identity was considered legally dominant.  As a result, marriage to an American woman could not change a foreign man’s citizenship.[35]  Foreign husbands still needed to earn their citizenship through further proof of loyalty to the U.S.[36]  In 1907, coverture’s ideas regarding marriage and female citizenship were codified in The Expatriation Act, which declared that American citizen women married to foreign men must share their husband’s alien status.[37]  The Act treated these wives as having voluntarily relinquished their citizenship through marriage, and it only permitted them to regain their citizenship if their husbands became citizens.[38]

The Expatriation Act was repealed in 1922,[39] but the belief that female patriotism and loyalty was derivative did not disappear.[40]  In fact, throughout the twentieth century, Congress repeatedly passed laws exempting foreign women, particularly those in relationships with American men, from otherwise applicable immigration restrictions.  Some of the most notable examples include the 1924 Quota Act, which imposed draconian quotas on immigration from certain countries but exempted foreign-born wives,[41] and the 1945 the War Brides Act, which allowed soldiers’ alien wives to enter as non-quota immigrants and also made exceptions for racially excludable Japanese and Korean wives.[42]  In the 1950s, the spousal and fiancé exemptions became gender neutral, but they still disproportionately benefitted female immigrants.

Women are more likely than men to immigrate through family connections.[43]  Consequently, by prioritizing family connections, gender-neutral immigration laws continued to ensure that foreign women remained the primary beneficiaries of America’s family-based immigration system.[44]  Some examples of modern female-benefitting immigration laws include the 1952 INA, which set up the current family-based immigration system;[45] the 1970 INA amendments creating the K-1 fiancé visa;[46] and the current version of the INA which continues to prioritize family-based immigration through benefits such as quota exemptions,[47] special visas,[48] and fast-tracked citizenship.[49]

Women have been the majority of arriving immigrants since the 1930s[50] and, as the above examples demonstrate, the change to gender-neutral family preferences has made little difference.[51]  Modern immigration law’s family preference remains mired in America’s long history of coverture and the belief that female immigrants are more trustworthy than foreign men.  These stereotypes benefit female immigrants, but they also make the family preference provisions constitutionally suspect.[52]  In addition, laws relying on these provisions, such as the travel ban, should also be viewed with suspicion.

The Supreme Court has long held that laws distinguishing between men and women based on outdated understandings of their “talents, capacities, or preferences” are contrary to constitutional gender principles.[53]  Immigration exemptions that benefit women based on the belief that women have no national allegiances of their own violate these constitutional principles.  Yet, despite these well-settled principles, for decades, the Court shielded immigration law from gender-based challenges.  This is finally no longer the case.  In Morales-Santana, the Court clearly held that immigration law does not exempt the government from the rule that “overbroad generalizations about the way men and women are” are unconstitutional.[54]

If the travel ban exemptions result in a highly uneven distribution of male and female visa denials, this disparity, combined with the gendered history of family-based preferences, should be enough to support a class action by the American family members of rejected aliens.  The President’s own statements[55] and policies[56] indicate that the true focus of the ban is Arab men, and consequently, there is a strong argument that the travel ban is a continuation of immigration law’s long-standing and constitutionally problematic preference for female immigrants based on their presumed greater loyalty to the U.S.

While a class action challenge to the application of the travel ban would be difficult, it could succeed because it would not focus on any individual visa denial.  Rather, it would challenge the overall visa decision-making process.  This distinction is crucial because under Supreme Court case law, once the State Department has made a visa determination, it is almost impossible to contest.  As recently as 2015, the Court reaffirmed the doctrine of consular non-reviewability, which bars judicial review of visa denials.  The case, Kerry v. Din[57], concerned an Afghani husband denied a visa to join his American citizen wife. According to the government, the husband presented a national security risk.  Din and her husband disagreed with this assessment, and they requested access to the information upon which it was based.  The government refused, and the couple then brought suit challenging the husband’s visa denial.  The district court held the doctrine of consular non-reviewability prevented review of their case, and the Supreme Court agreed.  According to the Court, visa determinations, even ones that are potentially unjust or incorrect, are unreviewable.

Without more information, it is impossible to know if the visa decision in Din was reasonable.  However, similar cases have shown how the doctrine of consular non-reviewability can shield erroneous or biased decisions from review. One of the most famous visa denial cases is Knauff v. Shaughnessy.[58]  In this case, the foreign-born wife of a returning American citizen soldier was denied the right to view the evidence used to bar her entry into the U.S.[59]  According to the government, Knauff had been a Nazi collaborator and provided the German military with classified information.[60] Knauff denied these claims, but without access to the government’s information, she was unable to effectively refute the charges.[61]  Luckily, Knauff’s case garnered national attention, and Congress eventually conducted a hearing to review the claims against her.[62]  This review revealed that the source of the information was a spurned girlfriend of Knauff’s husband who desired revenge.[63]  After obtaining this information, Knauff was able to demonstrate the falsity of the accusation, and she was then granted permission to enter the U.S.[64]

Knauff’s case has a happy ending, but it reveals how easily visas can be unjustly denied and how difficult it is for aliens to contest these decisions.  Knauff involved a single unfair visa denial; the travel ban creates the possibility of hundreds or thousands.  Kerry v. Din confirms that these individual decisions are shielded from judicial review, but it does not prevent them from being challenged as a group.  Consequently, the best, and perhaps only, means of challenging the application of the travel ban will be through a class action based on gender discrimination.

Initial travel ban lawsuits focused on racial and religious discrimination, but changes to the current ban weaken these arguments. Moreover, if the ban goes into effect, such arguments will be entirely inapplicable.  The newest version of the travel ban, which was released after the previous version expired, attempts to avoid charges of race and nationality discrimination by including two non-Muslim majority countries, Venezuela and North Korea.[65]  Opponents argue that the addition of these two countries does not solve the ban’s constitutional problems.  They argue that the ban’s primary purpose remains the prohibition of Muslim immigrants,[66] and they further add that the inclusion of Venezuela and North Korea does nothing to alleviate concerns that the ban discriminates based on national origin.[67]  For the moment, these challenges are succeeding, but many experts believe the ban will ultimately be upheld.[68]  Once that happens, arguments based on religious or national origin discrimination will be ineffective.

The majority of people affected by the ban will be both Arab and Muslim, making it difficult—or maybe impossible—to demonstrate religious or racial discrimination in the pattern of visa denials.[69]  Gender discrimination claims do not have this problem.  Significant numbers of both men and women are likely to apply for visas. Consequently, a substantial gender difference in the issuance of visas, combined with the history of discriminatory female preferences and the government’s acknowledged focus on Arab men, provides a strong basis for a gender discrimination challenge.

Whether such a challenge would ultimately succeed is unclear, but the possibility of such a suit demonstrates the new opportunities created by the Morales-Santana decision.  For too long, the Court has allowed stereotypes about the relative desirability of male and female immigrants to influence immigration law.  The result is an immigration system that favors women and can be manipulated and exploited to exclude men.  The State Department’s implementation of the travel ban is likely to proceed in this fashion.  However, Morales-Santana suggests that the Court might find such actions unconstitutional.  This is heartening.  As U.S. immigration becomes increasingly restricted, it is encouraging to realize the tools to fight these restrictions are expanding.

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     [1] See Flores-Villar v. United States, 564 U.S. 210 (2011) (splitting 4-4 and refusing to recognize an equal protection challenge to former provisions of the Immigration and Nationality Act (INA) which imposed an additional residence requirement for an unwed citizen-father to confer U.S. citizenship on a child born abroad); Nguyen v. INS, 533 U.S. 53, 70–71 (2001) (finding the paternity obligations were “minimal” and that the governmental interest in these distinctions served “important objectives.”); Miller v. Albright, 523 U.S. 420, 441 (1998) (finding the different treatment of unwed citizen mothers and unwed citizen fathers was “eminently reasonable” and “justified by important Government interests”); Fiallo v. Bell, 430 U.S. 787, 798 (1977) (reasoning that since these distinctions were “policy questions entrusted exclusively to the political branches of our Government,” the Court had “no judicial authority to substitute [its] political judgment for that of Congress”).

     [2] Nguyen concerned the same statutory provision as Miller.  See Michelle L. Sudano, Note, Crossing the Final Border: Securing Equal Gender Protection in Immigration Cases, 21 Wm. & Mary Bill Rts. J. 957, 968 (2013) (“[B]oth cases addressed the constitutionality of the same statute and the Nguyen court did not specify which issue was novel to the Nguyen case; it is more likely that the Court chose to hear Nguyen three terms after hearing Miller because it meant that the Court would have a chance to clarify the Miller ruling and eliminate the circuit split caused by the fractured opinion therein.”).

     [3] In Kerry v. Din, 135 S. Ct. 2128 (2015), Justice Scalia did hint that future gender discrimination challenges might be different.  Specifically, while discussing the history of the different treatment of male and female citizens, he wrote, “Modern equal-protection doctrine casts substantial doubt on the permissibility of such a symmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order.”  Id. at 2136.

     [4] 137 S. Ct. 1678 (2017).

     [5] The statute in effect at Luis Morales-Santana’s birth in 1962 required that an out-of-wedlock father have ten years of physical presence in the U.S., five years of which had to be after the father’s fourteenth birthday.  Id. at 1686-87.  In contrast, an out-of-wedlock mother had to have continuous physical presence in the U.S. for only one year at any time prior to the child’s birth.  Id. at 1687.

     [6] To reach its decision, the Court did not overrule the previous line of cases upholding these gender distinctions.  Instead, it carved out an exception for the challenged provisions.  As the Court noted, there were two ways it could fix the provision’s discriminatory result: either have the more lenient residency requirements apply to American citizen fathers or apply the more stringent one to mothers.  See id. at 1698.  The Court chose the latter, leading a number of commentators to dub the decision the “mean remedy.”  See, e.g., Will Baude, The Judgment in ‘Morales-Santana’ (and a Supreme Court Symposium), Wash. Post (June 13, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/13/the-judgment-in-morales-santana-and-a-supreme-court-symposium/?utm_term=.8dfecf900579. See also Ian Samuel, Morales-Santana and the “Mean Remedy,” PrawfsBlawg (June 12, 2017, 5:04 PM), http://prawfsblawg.blogs.com/prawfsblawg/2017/06/scotus-symposium-morales-santana-and-the-mean-remedy.html.

     [7] See, e.g., Charles Roth, Immigration Symposium: Prelude to a Turning Point, SCOTUSblog (June 29, 2017, 12:25 PM), http://www.scotusblog.com/2017/06/immigration-symposium-prelude-turning-point/ (“The INA allows a citizen parent to convey American citizenship automatically, under technical rules that have shifted over the years.  One consistent rule for the past 70 years is that it has been easier for an unmarried U.S.-citizen mother to convey automatic citizenship to her child than for an unmarried father or married parent.  The difference is the length of time that the parent must have been present in the U.S. before having the child.”).

     [8] In these cases, the Court upheld the distinctions as justified by the biological differences between men and women or as part of Congress’s plenary power over immigration.  Both justifications have been subject to significant criticism, particularly plenary power, which is seen as judicial permission for the government to violate constitutional norms.  Scholarly criticism of the doctrine is significant. See, e.g., T. Alexander Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship 151 (2002); Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law 189 (1996); Kif Augustine-Adams, The Plenary Power Doctrine after September 11, 38 U.C. Davis L. Rev. 701, 705 (2005); Nora V. Demleitner, How Much Do Western Democracies Value Family and Marriage?: Immigration Law’s Conflicted Answers, 32 Hofstra L. Rev. 273, 299–300 (2003); Linda Kelly, Preserving the Fundamental Right to Family Unity: Championing Notions of Social Contract and Community Ties in the Battle of Plenary Power Versus Aliens’ Rights, 41 Vill. L. Rev. 725, 734 (1996).

     [9] 137 S.Ct. 2080 (2017).

     [10] Given the closeness of the two decisions, it may also be significant that the Morales-Santana Court refused to accept a quasi-national security justification for the different treatment of men and women.  The government argued that the distinctions between mothers and fathers were justified based on legitimate concerns regarding foreign influence over American citizens.  Specifically, the government argued the distinctions are justified because if a child has only one parent and that parent is a U.S. citizen, the child will be influenced only by a person with U.S. citizenship.  But if the child has two parents, one of whom is not a U.S. citizen, the child will be subject to the parental influence of a person with the interests of a “foreign citizenship.”  Presuming that mothers have greater influence over their children than fathers, the government argued that the different treatment was justified.  Brief for Petitioner at 10, Lynch v. Morales-Santana, 136 S. Ct. 2545 (2016) (No. 15-1191), 2016 WL 4436132, at *5.

     [11] In addition to instituting the travel ban, the President has also increased the arrest of undocumented immigrants.  See Aria Bendix, Immigration Arrests Are Up, but Deportations Are Down, The Atlantic (May 17, 2017), https://www.theatlantic.com/news/archive/2017/05/under-trump-immigrants-arrests-are-up-but-deportation-is-down/527103/.  He has also announced his intention to reduce legal immigration by half.  See Andrew Soergel, Report: Trump Pushing to Cut Annual Immigration by Half, U.S. News, (July 13, 2017, 11:35 AM), https://www.usnews.com/news/national-news/articles/2017-07-13/report-trump-pushing-to-cut-annual-immigration-by-half.

     [12] See Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Feb. 1, 2017).

     [13] See generally Patricia Hatch, U.S. Immigration Policy: Family Reunification, League of Women Voters, http://lwv.org/files/ImmigrationStudy_FamilyReunification_Hatch.pdf (ranking the family based exceptions by preference to award visas).

     [14] Initially, Iraq was also included but was removed in the revised version of the order.  See Kevin Liptak, Why Iraq Was Removed from the Revised Travel Ban, CNN.com (Mar. 16, 2017, 5:06 PM), http://www.cnn.com/2017/03/06/politics/iraq-travel-ban/index.html.

     [15] Trump v. International Refugee Assistance Project, 137 S.Ct. 2080, 2088 (2017).

     [16] Id.

     [17] See Gardiner Harris & Ron Nixon, Stepsister, Yes; Grandma, No: U.S. Sets Guidelines for Revised Travel Ban, N.Y Times (June 28, 2017), https://nyti.ms/2uk1M2w.

     [18] Id.

     [19] Id.

     [20] Carol Morello, Travel Ban Takes Effect as State Department Defines “Close Family”, Wash. Post (June 29, 2017), http://wapo.st/2toCVxB?tid=ss_mail&utm_term=.f88bd8519383 (“Senior administration officials said they drew up the list of close relationships based on the definition of family in the Immigration and Nationality Act of 1965.”).

     [21] See Jessica Feinberg, The Plus One Policy: An Autonomous Model of Family Reunification, 11 Nev. L.J. 629, 630 (2011) (“The majority of individuals able to immigrate can do so because they share relationships with U.S citizens or lawful permanent residents (LPRs) that render them eligible under the ‘family reunification’ admission category.”); William L. Pham, Comment, Section 633 of IIRIRA: Immunizing Discrimination in Immigrant Visa Processing, 45 UCLA L. Rev. 1461, 1466 (1998) (“Family-sponsored immigration is by and large the most significant category of visa issuance: It comprises over 70% of all immigration to the United States.”).

     [22] Morello, supra note 20 (“More than half of all U.S.-bound refugees typically have some family members in the United States, although in some cases the relatives may be in the excluded category.”).

     [23] Some scholars have even suggested these exceptions could encompass the majority of travelers. Most travelers entering the U.S. do so for work, school, or to visit family.  See id.

     [24] See id.

     [25] See S.M., The Grandma Ban: The Travel Order Rules Face a Court Challenge, The Economist (June 30, 2017), https://www.economist.com/blogs/democracyinamerica/2017/06/grandma-ban.

     [26] Explaining the change, a state department official simply stated, “Upon further review, fiancé will now be included as close family members.”  Melanie Zanona, White House Reverses Course on Including Fiancés in Travel Ban, The Hill (June 29, 2017, 9:39 PM), http://thehill.com/policy/transportation/340193-white-house-reverses-course-on-including-fiances-in-trump-travel-ban.

     [27] This decision was eventually appealed to the Supreme Court, which held that the travel ban exemptions must be broader than the INA categories and could include grandparents.  Trump v. International Refugee Assistance Project, 137 S.Ct. 2080, 2088­–89 (2017).

     [28] See generally Naturalization Act, ch. 71, § 2, 10 Stat. 604 (1855) (securing U.S. citizenship for any alien woman who is lawfully married to a man of U.S. citizenship).

     [29] Id.

     [30] Cf. Sabrina Balgamwalla, Bride and Prejudice: How U.S. Immigration Law Discriminates Against Spousal Visa Holders, 29 Berkeley J. Gender, L. & Just. 25, 65 (2014) (acknowledging that mail-order brides lack information about their future spouse, the U.S. legal system, and their rights).  See generally Marcia Zug, Buying A Bride: An Engaging History of Mail-Order Marriage (2016) (describing the history of mail-order marriage in the United States and the laws encouraging foreign wives and fiancées).

     [31] Naturalization Act, ch.71, § 2, 10 Stat. 604, 604 (1855).

     [32] See generally Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1873) (“[I]t became a maxim of [the common law] that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state . . . .”).

     [33] “One congressional sponsor of the 1855 Act, Francis Cutting of New York, asserted that ‘by the act of marriage itself the political character of the wife shall at once conform to the political character of the husband.’”  Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage, 53 UCLA L. Rev. 405, 421 (2005). “[M]arriage to a U.S. citizen husband was considered an act of political consent to the U.S. nation state” and, in fact, it was considered the only way a married woman could “relate to the state.” Id. at 421–22.

     [34] See Linda K. Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship 33-38 (1998).

     [35] Balgamwalla, supra note 30, at 31–32.

     [36] Tanya Ballard Brown, That time American Women Lost Their Citizenship Because They Married Foreigners, NPR: Code Switch (Mar. 17, 2017), http://www.npr.org/sections/codeswitch/2017/03/17/520517665/that-time-american-women-lost-their-citizenship-because-they-married-foreigners.

     [37] The law required women to submit to their husbands’ authority and adopt his political allegiances.  Consequently, foreign women married to citizen men were considered incapable of presenting a national security risk because, regardless of their previous loyalties, once married, they would naturally adopt their husbands’ views and loyalties.  See, e.g., Brief for Professors of History, Political Science and Law as Amici Curiae for Respondents at 14, Morales-Santana v. Lynch, 136 S. Ct. 2545 (2016) (No. 15-1191), 2016 WL 5800340 (stating, “In the very design of the derivative citizenship statute, as it applied to mixed-nationality married couples, one can see the imprint of the male headship principle and the corresponding belief that the wife and children derived their political and cultural character from the husband-father”).

     [38] Expatriation Act, ch. 2534, § 3, 34 Stat. 1228, 1228 (1907) (providing that “any American woman who marries a foreigner shall take the nationality of her husband”).  See also Mackenzie v. Hare, 239 U.S. 299, 311 (1915) (upholding the constitutionality of the Expatriation Act).

     [39] Cable Act, ch. 411, § 3, 42 Stat. 1021, 1022 (1922).  This Act did not apply to women who married men unable to naturalize; these women still lost their citizenship.  Volpp, supra note 33, at 433 (noting this group was primarily Asian men).

     [40] Tied up in nineteenth-century notions about female loyalty and duty was the view that women were a civilizing influence and that they could help alleviate the threat of lawless or shiftless men.  In the immigration context, wives were also seen as reducing the perceived racial purity threat posed by unmarried foreign-born men.  Female immigrants tended to marry men of the same ethnic backgrounds while foreign-born men often did not.  Consequently, foreign wives and fiancées reduced the number of foreign men marrying American-born women (particularly those of a different ethnic background) and were viewed as a solution to an immigration threat rather than contributing to it.  For example, one study on German immigration between 1870 and 1910 noted “among immigrants who were single at migration, endogamy registered around 95% for German women, while it fluctuated closer to 50% for German men.”  Donna Gabaccia, Seeking Common Ground 71–72 (1992).

     [41] Under the Quota Act, immigrant wives were considered non-quota immigrants while immigrant husbands only received preferential status.  Quota Act, ch. 190, §§ 4(a), (d), 13(c), 43 Stat. 153, 155, 162 (1924) (exempting wives and fiancées from race-based and national-origin immigration restrictions).

     [42] The initial act was passed in 1945 and was amended in 1947 to make exceptions for racially excludable wives.  In addition, in 1946, the Act was amended to include fiancées of war veterans.  See GI Fiancées Act of June 29, 1946, ch. 520, 60 Stat. 339 (1946); War Brides Act of Dec. 28, 1945, ch. 591, 59 Stat. 659 (1945).  See also Act of June 28, 1947, ch. 160, 61 Stat. 190 (1947) (extending the Attorney General’s authority to admit the fiancées of members of the American armed forces as temporary visitors); and see Act of July 22, 1947, ch. 289, 61 Stat. 401 (1947) (amending the War Brides Act).

     [43] See e.g., Janet M. Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 San Diego L. Rev. 593, 614 (1991) (citing Marion F. Houstoun et al., Female Predominance of Immigr. to the United States Since 1930: A First Look, 18 Int’l Migration Rev. 908, 909 (1984)); Nancy Root & Sharyn Tejani, Undocumented: The Roles of Women in Immigration Law, 83 Geo. L.J. 605, 613 (1994) (noting that “women account for the majority of spouse-based immigration”); Katherine Donato & Donna Gabaccia, Gender and Internal Migration 26 (2015) (noting that “heavily female migrations to the United States are from countries with major U.S. military bases, suggesting that family formation and unification…offer a powerful explanation for feminization”); and Ariel G. Ruiz et al., Immigrant Women in the United States, Migration Pol’y Inst. (Mar. 20, 2015), http://www.migrationpolicy.org/article/immigrant-women-united-states (noting men tend to immigrate for work and are a higher percentage of the undocumented population).

     [44] See, e.g., Congr. Budget Office, Immigration Policy in the United States: An Update (2010) (demonstrating that the majority of immigration is family based).

     [45] See, e.g., Stephen H. Legomsky, Immigration and Refugee Law and Policy 131 (2d ed. 1997) (stating that immigration laws enacted in 1952 promoted, for the first time, a comprehensive group of preferences in support of family unity).

     [46] Immigration and Nationality Act § 101(a)(15)(K)(i), 8 U.S.C. § 1101 (2012).

     [47] Spouses of citizen are non-quota immigrants while spouse of LPRs receive preference.  See 8 U.S.C. § 1151(b) (2012) (noting the aliens not subject to numerical limitations).  See also Peter H. Schuck, The Re-Evaluation of American Citizenship in Challenge to the Nation-State: Immigration in Western Europe and the United States 191, 205 (Christian Joppke ed., 1997) (“‘[I]mmediate relatives’ of citizens receive a preferred immigration status without regard to numerical quotas, and citizens’ siblings and adult children have a preferred status under the numerical quota system. In contrast, the spouses and unmarried children of resident aliens qualify for a numerically limited preference, and their siblings receive no preference at all.”).

     [48] Some of these include the K-1 fiancé visa, 8 U.S.C. § 1101(a)(15)(K) (2012); U visas, 8 U.S.C. § 1101(a)(15)(U) (2012), for spouses that have been subject to domestic violence by a U.S. citizen or permanent resident; and the V visa, 8 U.S.C. § 1101(a)(15)(V) (2012), for spouses and minor children of permanent residents who have been waiting more than three years for admission (these spouses are not normally exempt from the yearly quotas).

     [49] Spouses of U.S. citizens need only wait three years after receiving a green card before applying for citizenship rather than the normal five.  INA § 319(a), 8 U.S.C § 1430(a) (2012).

     [50] The feminization of immigration is not universal.  As immigration scholar Donna Gabaccia has noted, “In none of the other major receiving nations, for example Canada, Australia, New Zealand, and Israel, does this pattern prevail.”  Gabaccia, supra note 40, at 25.

     [51] See, e.g., Balgamwalla, supra note 30, at 32 (2014) (“[A]lthough the INA provisions are now gender-neutral on their face, most family-based immigrants are still women.”). See also Silvia Pedraza, Women and Migration: The Social Consequences of Gender, 17 Ann. Rev. Soc. 303, 306 (1991) (summarizing literature attributing global female migration, including to the U.S., to family relationships).

     [52] See, e.g., Martha L. A. Fineman, Masking Dependency: The Political Role of Family Rhetoric, 81 Va. L. Rev. 2181, 2182 (1995) (suggesting that immigration law replicates the antiquated gender norms of coverture by recreating the traditional conception of the family; one that is headed by a husband who “performs as the head of the household, providing economic support and discipline for the dependent wife and children, who correspondingly owe him duties of obedience and respect).” See also Balgamwalla, supra note 30, at 31 (arguing “that the rights of immigrant women, including dependent spouses, are still limited by regulations that uphold antiquated gender norms”).

     [53] United States v. Virginia, 518 U.S. 515, 533 (1996).  Since the 1970s, the Court has repeatedly held sex-based distinctions based on presumed societal roles are highly suspect.  See, e.g., Frontiero v. Richardson, 411 U.S. 677, 682–83 (1977); Craig v. Boren, 429 U.S. 190, 198–99 (1976); Reed v. Reed, 404 U.S. 71, 76–77 (1971).

     [54] 137 S. Ct. at 1700-01.

     [55] In a 2016 interview Bill O’Reilly asked Trump, “You want to profile Arab or Muslim men.  How would that work?”  To which Trump replied, “Well, we have no choice.”  See Aaron Blake, Donald Trump Doesn’t Call his Position Racial Profiling. It is., Wash. Post: The Fix (Sept. 20, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/09/20/donald-trump-doesnt-call-his-position-racial-profiling-it-is/?utm_term=.8bfa614cb43a.

     [56] The focus on Arab men, particularly in relation to women, can be seen in the fact that the travel ban contains a provision for the study and publication of information about honor killings in the U.S. The purpose of this provision is not a concern about domestic violence.  The administration has slashed the budgets of other domestic violence programs, ones that affect far more women.  According to a 2014 study, there are fewer than thirty honor killings a year while more than 1,500 women are murdered as a result of general domestic violence.  Given these numbers, the administration’s focus on honor killings is clearly an attempt to cast Muslim men, particularly those in close family relationships, as especially dangerous.  See Jesse Singal, Here’s What the Research Says About Honor Killings in the U.S., N.Y. Mag.: Daily Intelligencer (Mar. 6, 2017), http://nymag.com/daily/intelligencer/2017/03/heres-what-the-research-says-about-american-honor-killings.html.

     [57] 135 S. Ct. 2128, 2132 (2015).

     [58] 338 U.S. 537 (1950).

     [59] Id. at 551 (Jackson, J., dissenting)

     [60] Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 960–64 (1995).

     [61] Id. at 550 (Jackson, J., dissenting)

     [62] Weisselberg, supra note 60, at 958–59.

     [63] See generally Ellen Raphael Knauff, The Ellen Knauff Story (1952).

     [64] Weisselberg, supra note 60, at 962–64.

     [65] Chad, which is Muslim majority, was also added to the list, while Sudan was dropped.  In addition, unlike earlier versions of the ban, this one has no set expiration date although it must be reviewed every 180 days.  See Peter Margulies, Travel Ban 3.0: The Hawaii TRO is Right on the Statute, Lawfare, (Oct. 17, 2017, 8:20 PM), https://www.lawfareblog.com/travel-ban-30-hawaii-tro-right-statute.

     [66] Judge Theodore Chang of the Maryland District Court issued a nationwide TRO of the ban based on a finding that it violated the Establishment clause. Steven Dinan, Judge Theodore D. Chang Rules Against Donald Trump’s Muslim Ban, Wash. Times (Oct. 18, 2017) https://www.washingtontimes.com/news/2017/oct/18/judge-theodore-d-chang-rules-against-donald-trumps/.  See also Marjorie Cohen, Trump’s Muslim Ban 3.0 is Still Unconstitutional, Salon (Oct. 2, 2017, 3:58 AM) https://www.salon.com/2017/10/02/trumps-muslim-ban-3-0-is-still-unconstitutional_partner/ (quoting Becca Heller, director of the International Refugee Assistance Project, stating “‘Of [the newly added] countries, Chad is majority Muslim, travel from North Korea is already basically frozen, and the restrictions on Venezuela only affect government officials on certain visas.’  She added, ‘You can’t get any more transparent than that.’”).

     [67] Judge Derrick Watson of the Hawaii Federal District Court found the ban “plainly discriminates based on nationality” and as a result, violates 8 U.S.C. § 1152(a)(1)(A) which prohibits discrimination based on national origins in the issuance of immigrant visas.  See Dahlia Lithwick, Trump’s Travel Ban Gets Blocked Again (Again), Slate (Oct. 17, 2017, 5:37 PM) http://www.slate.com/blogs/the_slatest/2017/10/17/federal_judge_temporarily_blocks_trump_s_latest_travel_ban.html.

     [68] The ban also includes a number of other changes from the previous version including providing reasons for banning entrants from certain countries and treating different countries differently. Together these changes may make the ban constitutionally permissible.  See Elie Mystal, Travel Ban 3.0 Could Work, Slate (Sept. 26, 2017, 3:01 PM) http://www.slate.com/articles/news_and_politics/jurisprudence/2017/09/trump_finally_achieved_a_patina_of_legalism_in_his_new_travel_ban_to_cover.html (explaining why this version of the ban is “probably going to be considered legally fine”).

     [69] The inclusion of North Korea and Venezuela is unlikely to change this fact.  Regardless of the ban, travel from North Korea was already exceedingly rare and the restrictions on travel from Venezuela are limited to a small group of governmental officials traveling on specific visas.  See Cohen supra note 66.

homeless-1254833-1280x960

By Ali Fenno

On November 8, 2016, the Fourth Circuit issued a published opinion in the civil case of Thomas v. Salvation Army.  In Thomas, the Fourth Circuit addressed whether the Western District of North Carolina properly dismissed Sharon Thomas’s (“Thomas”) various claims against three charitable organizations that allegedly refused to admit her to homeless shelters because of her mental disability. The Fourth Circuit held that Thomas did not allege sufficient facts to support her claims and affirmed the lower court’s dismissal of the case.

Facts and Procedural History

On July 22, 2012, Thomas was admitted to defendant Salvation Army’s homeless shelter after being referred there by an organization that provided her with behavioral mental health services. Shortly thereafter, Salvation Army transferred Thomas to defendant Church in the City, a stricter shelter run by the final defendant, Victory Christian Center, because Salvation Army’s shelter had become too crowded.

Thomas disclosed her mental health issues immediately upon arriving at Church in the City. While living there, she returned to Salvation Army for two separate visits, at which she disclosed that she was receiving behavioral mental health services, authorized the release of some of her medical records to Salvation Army, and was referred to a behavioral health center.

On August 12, 2012, Church in the City evicted Thomas. Thomas was given no reason for her eviction and alleged that she had never missed curfew. She tried to be readmitted to the Salvation Army shelter but was turned down because she was evicted from Church in the City. Thomas made numerous other attempts to return over the next few days, but was still denied re-entrance on the grounds that she had violated Church in the City’s curfew and was not a good fit for the shelter. One staff member told her that she would likely be admitted after getting a mental health evaluation, but the shelter later refused Thomas admission when she returned with psychiatric discharge papers.

Thomas did not attempt to return to the shelter after this last attempt, but she continued to try to discover why she was denied admission. In September, a Salvation Army caseworker that had investigated her case informed her that her dismissal had been justified because she had been disrespectful and hostile towards the shelter staff. He offered her admission to the shelter if she submitted a mental health evaluation and received behavioral mental health services. Thomas instead requested records of her stay at the shelter and of the relationship between Salvation Army and Church in the City. This request was denied.

Nearly two years later, Thomas filed this action in the Western District of North Carolina, moving to proceed in forma pauperis. Although the district court granted the motion, in the very same order it dismissed all of her claims under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief could be granted. The court also warned Thomas that it would require her to show cause as to why it should not enter a pre-filing injunction against her if she continued to file meritless lawsuits.

Thomas then appealed to the Fourth Circuit, challenging her appeals under 42 U.S.C. § 1983 (“§ 1983”), 42 U.S.C. § 1985 (“§ 1985”), the Americans with Disabilities Act (“ADA”), the Fair Housing Act (“FHA”), and the Rehabilitation Act.

§ 1915(e)(2)(B)(ii) Standard of Review

The Fourth Circuit established that the standard for reviewing a dismissal under § 1915(e)(2)(B)(ii) is the same as that for a dismissal under Federal Rule of Civil Procedure 12(b)(6). It therefore reviewed the district court’s dismissal de novo and accepted Thomas’s pleaded facts as true. Because Thomas was a pro se plaintiff, the court liberally construed the allegations in her complaint, but it maintained that her claims for relief must still be plausible on their face.

Lack of State Action Invalidates § 1983 Claim

The Fourth Circuit first determined that Thomas’s § 1983 claim was correctly dismissed because the defendants were not state actors. It recognized that § 1983’s color of law requirement does not cover private conduct, and private conduct can only be converted to state action when the state dominates the private activity. Here, because all three defendants were private organizations and Thomas did not allege any facts attributing their actions to the state, the Fourth Circuit held that Thomas had not plead a valid § 1983 claim.

Lack of a Conspiracy Invalidates § 1985 Claim

The court next approved the dismissal of Thomas’s § 1985 claim, holding that she did not allege any facts supporting the existence of a conspiracy between Salvation Army and Church in the City. Although Thomas alleged that her Salvation Army badge included a mention of Church in the City and that her inability to return to Salvation Army was due to her ejection from Church in the City, the court concluded that these facts only showed that the charities worked together to help Charlotte’s homeless population. Thomas’s remaining allegation that Salvation Army conspired with Church in the City was merely conclusory, which is not enough to proceed on a § 1985 claim.

No Standing for an ADA Claim

The Fourth Circuit then addressed Thomas’s ADA claim. The district court dismissed the claim on the grounds that Title I of the ADA requires a plaintiff to exhaust her administrative remedies before pursuing civil litigation. But the Fourth Circuit rejected this reasoning, noting that Title I of the ADA only applies to claims concerning employment, and here, Thomas’s claim did not concern employment.

However, the Fourth Circuit still found that that Thomas lacked standing to bring an ADA claim pursuant to both Title II and Title III of the ADA. Title II did not apply because it only applies to actions against public entities, and in this case, none of the defendants were public entities. Title III, though applying to places of public accommodation like the shelters in Thomas, still did not give the plaintiff standing because it only provides a private right of action for injunctive relief. The court noted that injunctive relief is only available to plaintiffs that show they have suffered irreparable injury, which requires a showing of a real or immediate threat that the plaintiff will be harmed again. Here, the court concluded that Thomas did not show a real or immediate threat that she would be harmed again because all the alleged harms occurred over two years before the action was filed. Furthermore, Thomas admitted that she filed the relief not to prevent future discrimination, but because of her “persistent and distressing memories” of the past discrimination. Accordingly, the court concluded that the ADA claim was invalid because the facts alleged in Thomas’s complaint did not establish irreparable harm entitling her to injunctive relief.

 Lack of Discrimination Invalidates FHA Claim

The Fourth Circuit approved the dismissal of Thomas’s FHA claim because her complaint did not contain a plausible allegation of discrimination. The court first noted that the FHA prohibits “mak[ing] unavailable or deny[ing] . . . a dwelling to any buyer or renter because of a handicap,” and that a handicap is “a physical or mental impairment which substantially limits one or more of such person’s major life activities.” Here, Thomas did not adequately identify a mental impairment for the purpose of the FHA: she identified her mental illness as a mood disorder, but then alleged that she was “mentally stable” and that the mental evaluation requested by Salvation Army was not necessary.

Even if Thomas had identified a valid mental illness, the court concluded that she did not allege facts establishing a nexus of causation between that illness and the defendants’ actions. The complaint listed multiple reasons besides Thomas’s mental disability for her eviction from the shelters, and the court further found that Thomas’s behavior with staff members gave Salvation Army valid grounds for requesting mental health examinations and records. Accordingly, the Fourth Circuit held that Thomas’s FHA claim must be dismissed because her factual allegations did not amount to a plausible showing of a mental impairment and causation, which are both essential to proving the discrimination element of a FHA claim.

Failure to Meet the Rehabilitation Act’s Heightened Causation Standard

The Fourth Circuit last concluded that Thomas failed to meet the Rehabilitation Act’s heightened causation standard. Like the ADA and FHA, the Rehabilitation Act forbids discrimination based on a disability. However, the court noted that it is different in two ways: (1) it applies only to programs receiving federal assistance, and (2) the plaintiff must show that the discrimination was solely by reason of her disability. The court first recognized that the Plaintiff only alleged that the Salvation Army received federal funding; there was no mention in the complaint of such funding for Church in the City or Victory Christian Center. It then reasoned that the second causation element must fail for the same reasons the FHA claim failed: (1) the complaint failed to allege a mental illness qualifying as a disability under the Act, and (2) it did not establish a nexus of causation between Salvation Army’s refusal to admit her and that disability. Accordingly, the court affirmed the district court’s dismissal of the claim.

Conclusion

Because the Fourth Circuit approved the dismissal of all five of Thomas’s claims, it also affirmed the district court’s decision to not exercise supplement jurisdiction over Thomas’s state law claims and to dismiss them without prejudice. However, the court noted that Thomas was not given an opportunity to respond before the district court dismissed her complaint sua sponte or to amend her complaint. Thus, the Fourth Circuit affirmed the decision of district court but modified it so that the dismissal would be without prejudice.

By Sarah Saint

On April 8, 2016, the Fourth Circuit released its published opinion in the civil case of S.B. v. Board of Education of Harford. S.B., a student with disabilities who attend Aberdeen High School in Harford County, Maryland, by and through his mother, A.L., sued the Harford County Board of Education (the “Board”), alleging that the Board violated § 504 of the Rehabilitation Act by allowing other students to bully and harass S.B. because of his disability. S.B.’s stepfather, T.L., who is a teacher and athletic director at Aberdeen High School, sued in his own right, alleging that the Board violated § 504 by retaliating against him for advocating for S.B. The Fourth Circuit affirmed the district court’s grant of summary judgment to the Board, ruling that neither S.B. nor T.L. provided evidence for their claims.

Facts Presented in the Light Most Favorable to S.B. and T.L.

S.B.’s disabilities included Attention Deficit Hyperactivity Disorder, weak visual-spatial ability, and a nonverbal learning disability. During high school, S.B.’s classmates severely bullied him, insulting him with homophobic slurs, sexually harassing him, physically threatening him, and calling him racist names. S.B.’s parents reported these incidents to the school, which investigated each incident. The school regularly disciplined the offenders and assigned a paraeducator to follow S.B. during school to monitor his safety. Nevertheless, this was not to A.L. and T.L.’s liking, and S.B.’s parents eventually began publicly criticizing the school’s efforts to protect S.B in November 2012.

Around the same time, the school denied T.L. the opportunity to complete a practicum for his master’s degree program at Aberdeen High School. Then, in the spring 2013, the school did not give T.L. tickets to a scholarship banquet for student-athletes and informed him that he would not be teaching the summer physical education classes that year, though he had taught it the previous years.

In April 2013, A.L. and T.L. filed the original complaint. In October 2013, T.L. raised concerns at a parents’ forum about the lack of harassment reporting forms available at the high school.

Despite the bullying, S.B. graduated Aberdeen High School on time in June 2014. He consistently achieved passing grades throughout high school and began taking classes at Harford Community College after graduation.

Procedural History

In June 2013, S.B. and his parents amended their complaints to allege violations of § 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq.; Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; and 42 U.S.C. §§ 1983 and 1985. The claims were premised on the fact that the defendants had discriminated against S.B. on his disability by failing to prevent student-on-student bullying and harassment and had retaliated against S.B.’s parents when they advocated for S.B.

In September 2013, the district court dismissed all the individual defendants and S.B.’s claims under §§ 1983 and 1985. A.L. also voluntarily dismissed her retaliation claim. Before the district court at trial and before the Fourth Circuit on appeal were S.B.’s claim of disability-based discrimination in violation of § 504 and the ADA and T.L.’s claim of retaliation under § 504.

After substantial discovery, in April 2015, the district court granted summary judgment to the Board because there was not evidence to support S.B.’s and T.L.’s claims. For one, there was no evidence in the record that the Board had acted with bad faith, gross misjudgment or deliberate indifference in responding to the harassment. Additionally, there was no evidence of a causal link between T.L. advocating for S.B. and any action taken by the Board.

Standard of Review

The Fourth Circuit reviewed the district court’s decision de novo. Summary judgment is proper when there is no genuine dispute to any material fact and the movant is entitled to a judgment as a matter of law. Fact are viewed and inferences are drawn in the light most favorable to the non-moving party, here S.B. and T.L. If no reasonably jury could find for the non-moving party, the appellate court will affirm a grant for a motion for summary judgment.

Fourth Circuit Adopted Davis Standard of Deliberate Indifference for § 504 Claims

Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). S.B. claimed that he was subjected to years of sustained and pervasive student-on-student harassment and bullying based on his disability. By the Board failing to prevent the harassment, S.B. alleged that the Board engaged in disability-based discrimination prohibited by § 504.

In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court addressed a similar claim under Title IX, which provides for similar protections as § 504 but for gender instead of disability. The Court held in Davis that a school could only be liable for student-on-student harassment when it was “deliberately indifferent” to known acts of such harassment. A negligent failure to learn of or react to student-on-student harassment does not subject a school to liability–only “deliberate indifference to known acts of harassment.” Id. at 642–43.

The Fourth Circuit, in alignment with most other federal courts who have reached this issue, decided that the same reasoning the Davis Court applied to Title IX also applies to § 504 claims arising from student-on-student harassment or bullying because of the statutory parallels. Schools must be on notice of the student-on-student harassment and act with deliberate indifference in order to be held liable for it.

The Fourth Circuit rejected S.B.’s argument that the Fourth Circuit had already adopted a different standard for § 504 liability in 1998: that a school can be liable if the school acted with bad faith or gross misjudgment. The 1998 case that S.B. cited in support of this theory–Sellers v. School Board of City of Manassas, 141 F.3d 524 (4th Cir. 1998)–did not involve school liability for student-on-student misconduct but a school’s own direct conduct. When a school allegedly violates § 504 through it’s own conduct, such as failing to provide a free appropriate public education, the bad faith or gross misjudgment standard applies. However, Sellers said nothing about school liability for student-on-student harassment. Accordingly, the Fourth Circuit found that it is guided by Davis and not Sellers.

S.B.’s Claim of Disability Discrimination in Violation of § 504

To succeed on a § 504 student-on-student harassment claim, a plaintiff must show that he was an individual with a disability; that he was harassed by other students because of his disability; that the disability-based harassment was sufficiently severe, pervasive, and objective offensive that it effectively deprived him of access to educational benefits and opportunities at school; and that the school knew about the disability-based student-on-student harassment and was deliberately indifferent to it.

The Fourth Circuit agreed with the district court that S.B. could not establish that the student-on-student harassment was based on his disability. It was more likely that S.B. was bullied because of his race, which is not actionable conduct under § 504. Further, the Fourth Circuit agreed with the district court that S.B. and his parents never informed the Board that he was being bullied because of his disability, only that he was being bullied. S.B. alleged that the school should have known that the harassment was based on his disability, but the Supreme Court expressly rejected such a standard in Davis.

Finally, the Fourth Circuit agreed with the district court that the Board was not deliberately indifferent under Davis, which is a high standard that requires an official decision by the school no to remedy the student-on-student harassment. The response to the harassment must be clearly unreasonable in light of the known circumstances. Because the school investigated every single incident of harassment of which it was informed, disciplined the offenders, and assigned a paraeducator to accompany S.B., the school acted reasonably. School administrators are entitled to substantial deference when they execute a disciplinary response to student-on-student bullying or harassment, so requests from parents for stronger discipline is not enough to make the school’s chosen actions clearly unreasonable. The Fourth Circuit decided that no reasonable juror could find that the school was less than fully responsive to S.B.’s situation.

T.L.’s Claim of Retaliation in Violation of § 504

Because there was no direct evidence of retaliation, T.L. had to use the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), burden-shifting framework to make a prima facie case of retaliation by showing (1) that he engaged in protected activity, (2) that the Board took an adverse action against him, and (3) that the adverse action was causally connected to his protected activity. The Board did not dispute that T.L. engaged in a protected activity, advocating for S.B., a student with disabilities. The Fourth Circuit found that the Board’s decision not to rehire T.L. to teach the summer physical education class was a materially adverse action. Nevertheless, the Fourth Circuit agreed with the district court that no reasonable jury could find the necessary causal connection between the Board’s adverse action and T.L.’s protected activity. The Board proffered the legitimate, non-retaliatory reason for its decision that they needed one male and one female physical education teacher for the summer, and that another male had more experience than T.L. T.L. attempted to rely on the temporal proximity between the reassignment and the protected activity to show the causal connection, but timing alone cannot defeat summary judgment once an employer offered a legitimate, non-retaliatory reason.

Conclusion

Because the Fourth Circuit agreed with the district court that no reasonable juror could find that the school was deliberately indifferent to the student-on-student harassment of S.B. and no reasonable juror could find that there was a causal connection between T.L.’s protected activity and the adverse action against him, the Fourth Circuit affirmed the judgment of the district court granting the Board’s motion for summary judgment.

By Sarah Saint

On March 4, 2016, the Fourth Circuit issued a publish opinion in Gentry v. East West Partners Club Management Company, Inc., a civil case in which Plaintiff Judith Gentry (“Gentry”) sued her former employer East West Partners Club Management Company, Inc. (“East West”) and manager Jay Manner (“Manner”) for wrongful termination in violation of the Americans with Disability Act (“ADA”) in addition to other state and federal law claims. On appeal, Gentry challenges the district court’s jury instructions and the damages award. The Fourth Circuit found no reversible error, and thus affirmed the district court’s judgment.

Gentry’s Injury and Termination

Prior to termination, Gentry was an executive housekeeper at the Maggie Valley Club and Resort (“the Club”). East West managed the Club through Manner. In July 2007, Gentry fell at work and injured her left foot and ankle. She received treatment and surgery, and eventually returned to work in January 2009, though still experiencing pain. In January 2010, her doctor determined that, under North Carolina workers’ compensation guidelines, Gentry had a 30 percent permanent physical impairment and may need further surgery.

When the Club’s insurance carrier offered to settle Gentry’s workers’ compensation claim, Gentry declined and expressed concerns that she would be terminated if she accepted. According to the insurance adjuster, Manner was surprised to learn of these fears, describing Gentry as a “great worker” who did “a great job,” and that he intended to make layoffs due to financial difficulties. Manner denied making these statements. Manner, on the other hand, stated that the insurance adjuster felt extorted by Gentry and that she expected Gentry to make another claim against the Club. The insurance adjuster also denied these statements. Nevertheless, Manner relayed his version of the conversation to the officers of the Club and East West. Gentry’s workers’ compensation claim was settled at mediation in November 2010.

In December 2010, Gentry was terminated. The Defendants claim that the termination was part of a restructuring plan to consolidate management positions due to financial difficulties. Gentry was fired along with two other department heads. All but three housekeeping employees had been terminated. Gentry, on the other hand, alleged that one of the executives told her Manner terminated Gentry because of the “issues with [her] ankle.” The Equal Employment Opportunity Commission (“EEOC”) investigator also confirmed that the executive thought Manner terminated Gentry due to her disability. The executive denied ever making such statements.

Procedural History

Gentry sued the Club and East West for (1) disability discrimination under the ADA and North Carolina common law; (2) sex discrimination under Title VII and North Carolina common law; and (3) retaliation against Gentry for pursuing a workers’ compensation claim, in violation of North Carolina common law. Gentry also sued East West and Manner for tortiously interfering with her employment contract with the Club. The jury found for Gentry on the workers’ compensation retaliation claim and the tortious interference claim. The jury found for the Defendants on all other claims.

On appeal, first, Gentry argued that the district court incorrectly instructed the jury on the causation standard and the definition of disability under the ADA. Second, she argued that the district court erred in refusing to admit certain evidence. Third, Gentry argued that she is entitled to a new trial on damages for claims on which she prevailed.

Standard of Review for Jury Instructions

Challenges to jury instructions are reviewed for abuse of discretion. Jury instructions are viewed in their totality to determine if they adequately informed the jury without misleading or confusing the jury or prejudicing one of the parties. Whether jury instructions were correct statements of law are reviewed de novo. Jury instructions will not be set aside unless they seriously prejudice the objecting party.

ADA Causation Standard

Title I of the ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees.” 42 U.S.C. § 12112(a). The district court instructed that Gentry had to prove that her disability was the but-for cause of her termination. Gentry argued that this was in error and that the district court should have instructed that Gentry had to prove that her disability was a motivating factor for her termination. The Fourth Circuit determined that the ADA’s text requires a “but-for” causation standard, and thus the district court did not err in applying a “but-for” causation standard to Gentry’s ADA claim.

Title VII allows for employees to establish actionable disability discrimination under the motivating factor causation standard. The Fourth Circuit pointed to the 1991 amendment to the Civil Rights Act of 1964 providing for this, codifying the Price Waterhouse v. Hopkins decision that first established the motivating factor standard for Title VII cases. However, in Gross v. FBL Financial Services, Inc., the Supreme Court determined that the motivating factor causation standard does not apply to the Age Discrimination in Employment Act (“ADEA”) because Congress did not amend the ADEA when it amended Title VII. The Fourth Circuit determined that the ADA, too, does not allow employees to establish actionable disability discrimination under the motivating factor causation standard, following the reasoning in Gross and joining the Sixth and Seventh Circuits. The few cross-references in the ADA to Title VII do not incorporate the motivating factor standard, contrary to Gentry’s contentions. Using the legislative history and the plain language of the ADA, the Fourth Circuit determined that the language of the ADA requires that “on the basis of” unequivocally means but-for causation.

ADA Definition of Disability

The ADA defines disability as “(A) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1).

The district court instructed the jury that an impairment substantially limits a major life activity “if it prevents or significantly restricts a person from performing the activity.” However, EEOC regulations now provide that an impairment does not need to prevent or significantly restrict a major life activity in order to be substantially limiting.

Because Gentry did not initially object to the district court’s instruction, the standard of review is plain error, which requires Gentry to establish that the district court erred, that the error was plain, and that the error probably affected the outcome of the trial. The Fourth Circuit determined that Gentry failed to establish that the error probably affected the outcome of the trial, and thus affirmed the district court’s definition of disability jury instructions. Gentry could not prove that the jury believed her injury was less severe than the jury instruction required. Instead, there was substantial evidence Gentry was terminated for other reasons. In so concluding, the Fourth Circuit considered that Gentry was terminated more than three years after her injury, that no one complained of her ability to do her job, and that her only evidence that she was terminated due to her disability was the disputed statements of Manner.

The district court also instructed the jury that a “regarded as” disability is actionable if “a perception that [Gentry] was disabled, was the ‘but for’ reason that [Defendants] . . . terminate[d] her employment.” The Fourth Circuit  could not see how Gentry was prejudiced by the jury instruction because the jury would have been instructed to find for Gentry if they believed Manner’s alleged statements. Accordingly, the Fourth Circuit found no abuse of discretion and no serious prejudice to Gentry that would warrant vacating the verdict.

Finally, the district court instructed the jury regarding the “record of” disability, to which Gentry also objected. However, because Gentry did not object to the instructions at trial and did not explain how the language affected her case, the Fourth Circuit could not find that the district court erred or otherwise abused its discretion.

State Law Claims and Damages Awards

For the state law claims, the district court instructed the jury that it could award damages for back pay, front pay, emotional pain and suffering, and nominal damages; and that Gentry had to mitigate her damages by seeking and accepting similar employment and that it could reduce the damages award based on what she could have earned. The jury awarded Gentry $10,000 against East West for workers compensation retaliation and $5,000 against East West and Manner each for tortious interference. Gentry argued on appeal that the trial court erred in denying her motion to introduce evidence of East West’s insurance coverage and indemnification and in denying her motion for a new trial on damages.

Gentry argued that the damages award was minimized by the Defendants’ belaboring of their poor financial conditions and the impression that a large award would be overly burdensome. Further, she argued that she should have been allowed to dispel this impression by presenting evidence of East West’s liability insurance and its indemnification agreement with the Club.

Evidentiary rulings are reviewed for abuse of discretion. Rulings will only be overturned if they are arbitrary and irrational. The Fourth Circuit found no such basis for overturning the district court’s decision.

The Defendants’ evidence of their financial status was relevant in their defense that they did not terminate Gentry because of her disability but rather because of their financial situation. Further, Gentry did not sufficiently show how the evidence of the financial troubles would show that the Defendants could not pay a damages award. Finally, the district court instructed the jury to award Gentry “fair compensation” and did not reference the Defendants’ ability to pay.

Gentry also argued that she is entitled to a new trial on damages because the damage award was inadequate and that the jury found that Gentry failed to mitigate her damages against the clear weight of the evidence.

Motions for new trial are reviewed for abuse of discretion, which is a high standard because the district court is in the position to hear from the witnesses and has a perspective an appellate court can not match. The crucial inquiry is whether an error occurred in the conduct of the trial that was so grievous as to have rendered the trial unfair. Gentry did not meet this substantial burden because she could not assert with certainty the reasons for the jury’s decision on damages. Further, she could not assert that the clear weight of the evidence showed that she properly mitigated her damages. Accordingly, the Fourth Circuit affirmed the district court’s denial of Gentry’s motion for a new trial.

Conclusion

The Fourth Circuit affirmed the judgment of the district court on all the issues Gentry raised on appeal.

By Elizabeth DeFrance

On December 9, 2015 the Fourth Circuit Court of Appeals issued a published opinion in the civil case, Goode v. Central Virginia Legal Aid Society. The plaintiff, Freddie L. Goode (“Goode”), appealed the district court’s dismissal without prejudice of his complaint against Central Virginia Legal Aid Society (“CVLAS”) for race and age discrimination. The Fourth Circuit Court of Appeals determined that it lacked jurisdiction because the order of dismissal was not final and appealable.

Complaint for Race and Age Discrimination Dismissed Under 12(b)(6)

Goode is an African-American male, who was seventy-two years old when he was terminated from his position as one of two Senior Managing Attorneys at CVLAS. The Board of Directors made the decision to eliminate Goode’s position during a meeting where it discussed the loss of funding and the need for reorganization. Goode subsequently filed a complaint against CVLAS for race discrimination under Title VII of the Civil Rights Act of 1964 and for age discrimination under the Age Discrimination in Employment Act. The district court granted CVLAS’s motion to dismiss for failure to state a claim under12(b)(6), determining that Goode “failed either to present direct or circumstantial evidence of discrimination or to make out a prima facie case of discrimination.” The district court held that Goode failed to allege sufficient facts to show his job performance was satisfactory at the time of his termination, that he was treated differently than similarly situated employees outside the protected class, and that he was replaced by someone outside the protected class with comparable qualifications. Accordingly, Goode’s case was dismissed without prejudice, and he filed a timely appeal.

When A Complaint Is Dismissed Without Prejudice, It Is Not Appealable

Under 28 U.S.C. § 1291, the Court may only exercise jurisdiction over final orders (and certain interlocutory and collateral orders not at issue in this case). When a complaint is dismissed without prejudice, it is not a final order “unless the grounds for dismissal clearly indicate that no amendment in the complaint could cure the defects in the plaintiff’s case.”

Defects in The Complaint Were Curable

The Court concluded that Goode could cure the defects in his complaint by amending it to plead specific facts supporting his contentions that his job performance was satisfactory at the time he was terminated, that he was treated differently than similarly situated employees outside the protected class, and that his job duties were dispersed to remaining, younger employees. Nothing in the district court’s order indicated Goode would not have the opportunity to amend his complaint to include such facts. Therefore, the order of dismissal was not final because the district court’s order did not clearly indicate that no amendment could cure the defects in the complaint.

In his appeal, Goode alleged that the district court used an erroneous legal standard to dismiss his case. However, the Court declined to take up this issue because the “district court maintains authority over a case until it issues a final and appealable order.”

Dismissed for Lack of Jurisdiction

Because the district court’s order did not clearly indicate that no amendment could cure the defects in the complaint, the order of dismissal was not final and appealable. Therefore, the Court dismissed the appeal for lack of jurisdiction and remanded the case with instructions to allow Goode to amend his complaint.

POLICE 10

By Sarah Saint

On June 15, 2015, the Fourth Circuit issued a published opinion in the civil case of Hunter v. Town of Mocksville, North Carolina. Plaintiffs Keith L. Hunter (“Hunter”), Rick A. Donathan (“Donathan”), and Jerry D. Medlin (“Medlin”)—officers of the Mocksville Police Department (“MPD”) in Mocksville, North Carolina—were concerned about corruption in the MPD and reached out to the North Carolina Governor’s Office as public citizens. Public employees still have First Amendment rights when they speak as “citizen[s] on a matter of public concern.” Lane v. Franks, 134 S. Ct. 2369, 2378 (2014) (quotation marks and citation omitted). Accordingly, Plaintiffs enjoy First Amendment protection in their outreach. The Fourth Circuit affirmed the district court’s denial of summary judgment to Defendants Robert W. Cook (“Cook”), Administrative Chief of Police of the MPD, and Christine W. Bralley (“Bralley”), Town Manager of the Town of Mocksville.

Misconduct in the MPD

Plaintiffs Hunter, Donathan, and Medlin became concerned with Defendant Cook’s behavior and leadership as police chief. Plaintiffs saw him excessively drink alcohol in public and in uniform, which they felt reflected poorly on the police department. They also believed Cook drove a police car with blue lights flashing and behaving as a law enforcement officer when he had never been certified, in violation of the law. Further, Plaintiffs suspected Cook misused public funds for personal gain, racially discriminated, and “fixed” tickets for his friends.

Plaintiffs reported their concerns to Defendant Bralley but saw no improvement and worried about retaliation. Deputy police chief Daniel Matthews (“Matthews”) criticized Donathan regarding his concerns he raised with Bralley, and Cook demoted Medlin.

In November 2011, Cook reorganized the department, giving Matthews a promotion to second-in-command and demoting Hunter, one of only two African-Americans in the MPD. Hunter subsequently filed a grievance but his concerns were dismissed. Donathan was promoted and instructed to “adhere to the ‘politics’ of the MPD.” The next month, the three Plaintiffs and two other officers met privately to discuss their concerns and decided to seek outside investigation as private citizens.

Plaintiffs met with the National Association for the Advancement of Colored People (“NAACP)”, which advised them to contact a state agency. Hunter purchased a disposable phone so they could report their citizen complaints separately from their affiliation with the MPD. They then contacted the North Carolina Attorney General with the disposable phone. The Attorney General referred them to local individuals closely aligned with Cook, and the Plaintiffs felt they could not contact them. Plaintiffs called the North Carolina Governor’s Office with the disposable phone and expressed their concerns with no identifying details. Donathan later identified the MPD to the Governor’s Office, and the Governor’s Office offered to report their concerns to the State Bureau of Investigation (“SBI”).

The next week Medlin saw a local SBI agent at the MPD and noted the SBI agent had a close relationship with Cook and Mathews. The agent called the disposable phone, but the Plaintiffs did not return the call and disposed of the disposable phone because they felt they could not trust the agent. The phone was found, and the agent contacted the Davie County Sheriff’s Office to see if the phone belonged to anyone at the Sheriff’s Office. The Sheriff’s Office contacted the MPD and asked to run the number through MPD records. Bralley set up an online Sprint account and saw that both Donathan and Medlin had called and received calls from the disposable phone using their MPD-issued mobile phones.

MPD Fired Plaintiffs in Retaliation

Cook fired all three Plaintiffs for “conduct unbecoming a Officer” at the end of December 2011, the first time he had fired anyone at MPD, even though officers had used illegal drugs and engaged in criminal activity during his tenure. Later, in a memo to the town attorney, Cook mentioned Plaintiff’s call to the Governor and SBI and claimed the Plaintiffs conspired to discredit Cook, Bralley and others.

District Court Denied Summary Judgment to Defendants

In April 2012, Plaintiffs brought suit against Cook, Bralley, and the Town of Mocksville alleging their First Amendment rights were violated because they were fired for speaking out about corruption at the MPD. After filing an answer and engaging in discovery, Defendants moved for summary judgment. In October 2013, the district court granted summary judgment to all Defendants on the Section 1983 claims but denied summary judgment on the state law wrongful discharge and constitutional claims. The district court granted a motion for reconsideration and reversed course as to Cook and Bralley, holding that they were not entitled to qualified immunity.

District Court Rightfully Rejected Defendants’ Motion for Summary Judgment on Qualified Immunity Grounds

Qualified immunity shields government officials “who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).

The Fourth Circuit rejected the Defendants’ argument that Cook and Bralley are entitled to qualified immunity—arguing that no constitutional violation occurred because Plaintiffs spoke as public employees and not citizens, so the First Amendment does not protect Plaintiffs from retaliation. Courts must balance the interests of the public employee as a citizen with the right to speak out with the state’s interest in controlling the operation of the agencies. This balancing test has two steps. The first step asks whether the public employee spoke as a citizen on a matter of public concern. If the answer is no, the employee does not have First Amendment protections. If the answer is yes, the next step asks whether the public employee’s interest in speaking out about the matter of public concern outweighs the government’s interest. The first step is the primary concern of this appeal. To determine whether the public employee spoke as a citizen, the court must consider the employee’s daily professional activities.

The Defendants contend that reporting crimes is the daily professional activities of police officers like the Plaintiffs. However, the Court found calling the Governor’s Office and reporting concerns about the MPD are not part of officers’ daily professional activities. Accordingly, the Fourth Circuit found that the Plaintiffs were acting as private citizens, not public employees, speaking out on matters of public concern. Defendants asserted no countervailing state interest.

The Fourth Circuit also rejected the Defendants’ argument that Cook and Bralley are entitled to qualified immunity because the rights were not clearly established at the time. The dispositive inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful. Here, it was clearly established in the Fourth Circuit that an employee’s speech about serious government misconduct is protected under the First Amendment. Therefore, the district court rightfully denied qualified immunity to Cook and Bralley on the bases that no violation occurred and that the law was not clearly established. Accordingly, the Fourth Circuit affirmed the judgments of the district court.

Dissent

Judge Niemeyer dissented because he would grant qualified immunity to Cook and Bralley. It was not clear to Cook and Bralley at the time the officers were fired that they had complained as citizens and not as employees. It was not clear as a matter of law that police officers complaining to the Governor’s Office about departmental corruption is speech by a citizen and not an employee. Had they complained as employees, they would not have First Amendment protections and retaliatory firing would have been lawful. Officials should not be held liable for “bad guesses in grey areas.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). To the dissent, Cook and Bralley made a bad guess in a grey area and accordingly should not be held liable.

 

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By Sarah Walton

On June 15, 2015, the Fourth Circuit issued a published opinion in the civil case of Reyazuddin v. Montgomery Cnty., Maryland. The Fourth Circuit held that genuine disputes of material fact precluded summary judgment for Montgomery County on the plaintiff’s failure to accommodate and disparate treatment claims. The court affirmed the district court’s grant of summary judgment to Montgomery County on the plaintiff’s Title II claim.

Origins of the Dispute

Plaintiff Yasmin Reyazuddin (“Reyazuddin”) worked for Montgomery County’s Department of Health and Human Services. Reyazuddin, who is blind, assisted individuals who were looking for information about the department’s services. In October 2009, Montgomery County informed Reyazuddin’s unit that they would be moving to a new worksite. The new worksite did not have the technology necessary for Reyazuddin to perform all aspects of her job. Reyazuddin expressed this concern to her supervisor and subsequently left for vacation. When Reyazuddin returned, her coworkers had already transferred to the new location. Reyazuddin was eventually transferred to the Montgomery County Aging and Disability Unit, but her managers were unable to give her steady work. Ultimately, Reyazuddin’s manager informed her that she would not receive a transfer to the new worksite because the required software was too expensive. When Montgomery County announced that it was hiring an employee at the new worksite, Reyazuddin submitted her application. Ultimately, Montgomery County hired another applicant.

The District Court Granted Summary Judgment for Montgomery County

Reyazuddin filed a complaint against Montgomery County, which alleged that Montgomery County violated Section 504 of the Rehabilitation Act when it: (1) failed to accommodate her disability at the new worksite, and (2) discriminated against her when it refused to transfer her to the new worksite. Reyazuddin also alleged that Montgomery County violated Title II of the Americans with Disabilities Act (“ADA”) by failing to hire her for the vacant position. On the parties’ cross-motions for summary judgment, the district court granted Montgomery County’s motion on all of Reyazuddin’s claims.

The Fourth Circuit Reversed on the Failure to Accommodate Claim

The parties disagreed about the following aspects of Reyazuddin’s failure to accommodate claim: (1) whether Reyazuddin proposed a reasonable accommodation that would allow her to perform the essential functions of her job, (2) whether Reyazuddin’s current employment at the Aging and Disability Unit was comparable to her prior responsibilities, and (3) whether the proposed accommodation constituted an undue hardship on Montgomery County.

The Fourth Circuit rejected Montgomery County’s argument that Reyazuddin’s proposed accommodation would not allow her to perform the essential functions of her job. The court relied on testimony indicating that Reyazuddin could perform the position’s essential functions with an accommodation. Further, the Fourth Circuit determined that Reyazuddin’s current employment arrangements did not provide enough work for a full-time position, which made it incomparable to Reyazuddin’s prior position. As a result, the court determined that there were genuine issues of material fact regarding Reyazuddin’s proposed accommodation and Montgomery County’s comparable accommodations.

The Fourth Circuit also rejected the district court’s reasoning that the cost of installing the necessary computer software created an undue hardship on Montgomery County. The court reasoned that the cost of alternate computer software should have been balanced against other factors to determine whether it constituted an undue hardship. Consequently, the Fourth Circuit reversed the district court’s grant of summary judgment to Montgomery County on the failure to accommodate claim.

The Fourth Circuit Reversed on the Disparate Treatment Claim

The district court concluded that because Reyazuddin’s accommodation was an undue hardship on Montgomery County, they had a nondiscriminatory reason for failing to transfer her to the new worksite. The Fourth Circuit reasoned that because the district court did not properly balance the factors for the undue hardship test, it could not rely upon the undue hardship analysis for the disparate treatment claim. As a result, the Fourth Circuit held that there were genuine issues of material fact on this claim and reversed the district court’s ruling.

The Fourth Circuit Affirmed the District Court’s Determination on the Title II Claim

The Fourth Circuit noted that there was a circuit split on whether plaintiffs could bring a claim under Title II for discrimination in public employment. Ultimately, the Fourth Circuit adopted the majority view and held that Title II applied to an entity’s services to the public, rather than to its interactions with employees. As a result, plaintiffs who work in the public sector cannot bring a claim for discrimination under Title II. Consequently, the Fourth Circuit affirmed the district court’s holding on the Title II claim.

The Fourth Circuit Affirmed in Part, Reverses in Part, and Remands for Further Proceedings

The Fourth Circuit reversed the district court’s grant of summary judgment to Montgomery County on the failure to accommodate and disparate treatment claims and affirmed the district court’s decision on the Title II claim.

 

 

airplane-870364_1280

By: Mikhail Petrov

On July 1, 2015, in the civil case of Pryor v. United Air Lines, Inc., the Fourth Circuit issued a published opinion vacating the decision of the United States District Court for the Eastern District of Virginia and remanding the case for further proceedings. The case concerned the question of when an employer may be held liable for a hostile work environment created by an anonymous actor. The Fourth Circuit determined that Plaintiff, United Airlines Employee Renee Pryor (“Pryor”), presented enough evidence that a reasonable jury could find that her Employer, Defendant United Airlines, Inc. (“United”), had not done enough to protect her from racially motivated death threats. The Fourth Circuit found that the District Court failed to view the evidence of the case in light most favorable to Pryor.

The Racial Threats

Pryor, an African-American employee of United Airlines was stationed at Dulles International Airport. In January 2011, Pryor discovered a note in her company mailbox declaring that the holder was “licensed to hunt and kill N***** during the open search thereof in the US.” The note was titled “N***** Tag – Federal N***** Hunting License.” There was also a hand drawn image of a person hanging from a pole. The mailbox was located in a secure area only accessible to United employees and others with company authorization.

Pryor was shaken and afraid. She went to her supervisor, but he said he was “sorry” and there was “not much” United could do as there were no security cameras in the mail room. He gave Pryor a form to fill out and said he would alert security and the base manager. He did not, however, file with United’s Employee Service Center (“ESC”) as prescribed in United’s Harassment and Discrimination (“H&D”) policy. Pryor’s supervisor went on to notify the base manager, who notified another manager, who in turn, notified the next one. No United manager filed with the ESC as prescribed by the H&D policy. Management also knew that this was not the first racist incident that happened at United. A year before the note in Pryor’s mailbox, rumors surfaced that African-American flight attendants moonlighted as prostitutes during layovers in Kuwait. Additionally, racist apartment advertisements were left in the flight attendants’ break room. Management never fully investigated who was behind these incidents.

Later, Pryor herself reported a complaint to the ESC. Additionally, she contacted the police, something no one at United had done. When the police did arrive, Pryor’s managers were reluctant to speak about the incident, even after the police explained that a racial note was a race crime in Virginia. It took United management two and a half months to send out a must read email regarding the racial harassment.

On October 21, 2011, Pryor and many other African-American employees at Dulles received a nearly identical racist note in their mailboxes. Pryor went to a supervisor, who in turn ignored her. Pryor then went to the police and filed a report. Additionally, Pryor herself notified the ESC and corporate security. Afterwards, the director of human resources at Dulles agreed to conduct an investigation. Although the director was aided in his investigation by the police, the anonymous harasser was not found.

On March 9, 2012, Pryor filed with the EEOC alleging that United failed to investigate the prostitution rumors and racist notes left in the mailboxes, and that the failure constituted discrimination. Pryor alleged that United created a hostile work environment based on the speculation regarding the prostitution ring and the two notes received. The district court granted summary judgment in favor of United because, although the racist notes were sufficiently severe, the conduct could not be imputed to United.

The Rule of the Case

Pryor alleged that she was subject to a racially hostile work environment in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. The elements an employee must prove are the same under either provision. To survive summary judgment, Pryor must show that a reasonable jury could find the conduct alleged was (1) unwelcome; (2) based on her race; (3) sufficiently severe or pervasive to alter the condition of her employment and to create an abusive work environment; and (4) imputable to her employer. Okoli v. City of Baltimore, 648 F.3d 216, 220. (4th Cir. 2011). Elements (1) and (2) are not in dispute. The Fourth Circuit agreed with the district court that element (3) is met. Therefore, the Fourth Circuit re-examined the district court’s decision on element (4) of whether the harassment is imputable on the employer.

The Reasoning of the Fourth Circuit

The question in this case is whether United is liable for the anonymous harassing conduct. On one hand, employers are not strictly liable for acts of harassment that occur in the workplace. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986) (employer not strictly liable for workplace harassment). On the other hand, the employer maintains a responsibility to reasonably carry out those dual duties of investigation and protection. Thus, the rule is that an employer may be liable for a hostile environment created by third parties “if it knew or should have known about the harassment and failed to take effective action to stop it … by responding with remedial action reasonably calculated to end the harassment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008) (employer charged with investigation of harassment and protection of employee). In a case of an anonymous harasser, the threats may heighten what is required of the employer, particularly when the harassment occurs in a closed space accessible only to those that the company authorizes.

Here, Pryor agrees that United’s response to the second threat was adequate. However, it is the first threat that is in question here. United agreed that the threat to Pryor was death, and therefore very serious. The only question is whether United’s response to the first threat was reasonably calculated to end the harassment. A reasonable jury could find that United was neither prompt nor reasonably calculated to end the harassment. In answering the first threat, United did not call the police, report the matter to the ESC, inform corporate security, install cameras, provide Pryor with additional security, or conduct forensics on the note. In short, the Fourth Circuit concluded that a reasonable jury could find that United did little to deter future acts of harassment, particularly because additional acts of harassment did happen. The district court erred by granting summary judgement on this element.

The Fourth Circuit Remanded for Further Proceedings

The Fourth Circuit vacated the district court’s grant of summary judgment to United and remanded it for further proceeding consistent with this opinion. The Court found that a reasonable jury could conclude that the response United chose was neither prompt nor reasonably calculated. Therefore, the creation of an abusive work environment could be imputable to the employer, United Airlines.

file000704919536

By Eric Benedict

On May 21, 2015, the Fourth Circuit issued its published opinion in the civil case Foster v. University of Maryland-Eastern Shore. In Foster, the court set out to determine the impact of the Supreme Court’s University of Texas Southwestern Medical Center v. Nassar opinion on Title VII retaliation analysis. Iris Foster claimed that the University of Maryland-Eastern Shore (“the University”) discriminated against her based on gender, created a hostile work environment, and retaliated unlawfully. Although the court affirmed the district court’s grant of summary judgment against Foster on her hostile work environment and gender discrimination claims, it reversed the district court’s grant as to the retaliation claim.  Despite disagreement among the circuits, the Fourth Circuit concluded that the Nassar case did not alter the McDonnell Douglas burden shifting framework.

Foster’s Claims at the United States District Court for the District of Maryland

The University hired Foster in March of 2007 as a campus police officer. Foster alleged that before and during her employment at the University, one of her co-workers sexually harassed her repeatedly. After the University was informed of the harassment, it took action in an attempt to remedy Foster’s concerns and the behavior of her co-worker. However, Foster claimed that the University also took action against her as a result of her complaints. According to Foster, the University retaliated by, among other things, extending her probationary period, changing her schedule, and ultimately terminating her employment.  In her original suit, Foster asserted three claims under Title VII: gender discrimination, hostile work environment, and retaliatory termination.

The University filed its motion for summary judgment as to each claim. The District Court originally granted the University’s motions as to the gender and hostile work environment claims, but refused to grant summary judgment as to the retaliation claim. The United States Supreme Court then issued its decision in Nassar. In light of the decision in Nassar, the University filed a motion for reconsideration, asserting that Foster should be held to a higher causation standard. The District Court reviewed the Supreme Court’s holding in Nassar and concluded that both the motion for reconsideration and the motion for summary judgment  should be granted. Foster appealed the District Court’s decision on all three claims to the Fourth Circuit.

Title VII and the Supreme Court’s Holding in Nassar

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits covered employers from discriminating against covered employees and applicants on the basis of sex and other protected traits. 42 U.S.C. §2000e-2 (2012). An employee who attempts to assert a claim under Title VII may do so in two ways. First, the employee may offer direct or indirect evidence of discrimination. Alternatively, the employee may employ a burden shifting framework known as the “McDonnell Douglas framework.”

Judge Floyd explained that in order to prevail under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case by showing: (i) “that [she] engaged in protected activity,” (ii) “that [her employer] took adverse action against [her],” and (iii) “that a causal relationship existed between the protected activity and the adverse employment activity.”  The burden then shifts to the employer to show that the adverse employment action was due to a legitimate reason. The burden then shifts back to the employee to prove that the employers proffered reason is mere pretext.

In Nassar, the Supreme Court explained that discrimination claims under Title VII differ from retaliation claims. The Supreme Court explained that it was permissible for discrimination claims to take advantage of a “mixed-motive” theory. Under this theory the plaintiff must show that discrimination was at least a part of the reason for the adverse employment action. However, the Supreme Court held that such a theory does not extend to retaliation claims, instead the Court required ”but-for” causation.  Therefore, a plaintiff must show that “the unlawful retaliation would not have occurred  in the absence of the alleged wrongful action or actions of the employer.”

The Supreme Court’s Holding in Nassar Does Not Apply to the McDonnell Douglas Analysis

The Fourth Circuit determined that the District Court erroneously applied the Nassar holding to the McDonnell Douglas or ‘pretext’ framework. Judge Floyd reiterated that a plaintiff who files suit under Title VII may proceed by either ‘direct evidence’ or under a ‘pretext’ framework. The Fourth Circuit determined that the Nassar Court’s decision only applied to ‘direct evidence’ claims.

Nassar Does Not Alter Either Portion of the McDonnell Douglas Analysis

The Fourth Circuit concluded that Nassar does not alter the prima facie case portion nor the burden shifting portion of the McDonnell Douglas test.  The court reasoned that the ‘causal relationship’ prong of the prima facie case demands a lower standard than the ‘pretext’ prong because otherwise the pretext prong would be redundant. Further, the court concluded that if the Supreme Court had meant to eliminate the McDonnell Douglas framework, they would have done so explicitly, given its significance to Title VII jurisprudence.

Judge Floyd also explained that the pretext prong of the analysis already required a ‘but-for’ test and was therefore undisturbed by Nassar. Citing Fourth Circuit precedent, the court noted that an employee “must establish ‘both that the [employer’s] reason was false and that [retaliation] was the real reason for the challenged conduct.’” Therefore, Judge Floyd concluded that the pretext prong was not altered by Nassar and that the District Court’s initial judgment was correct.

The Fourth Circuit Remands the Title VII Retaliation Claim

The Court affirmed summary judgment as to the gender discrimination and hostile environment claims. However, it found that Foster’s retaliation claims must survive the summary judgment stage because the holding in Nassar did not alter the causation standard for a Title VII plaintiff who employs the McDonnell Douglas framework.

railroad

By Elissa Hachmeister

Today, in a published opinion in the civil case of Lee v. Norfolk Southern Railway Co., the Fourth Circuit established that the “Election of Remedies” provision of the Federal Railroad Safety Act (FRSA) is to be narrowly applied to bar duplicative claims brought under statutes aimed at preventing retaliation for workplace health and safety whistleblowing.

Lee’s Suspension and Subsequent Lawsuits

Charles Lee works as a carman for Northern Southern Railway Company (NS), where his responsibilities include inspecting railcars to identify potential defects. According to Lee, NS’s management capped the number of railcars that Lee could tag for repair. Lee refused to comply with the quotas because he believed federal law required him to identify and tag all defective railcars.

Lee, an African-American, further alleged that NS denied African-American carmen the training and advancement opportunities provided to white carmen. Lee described racial harassment by co-workers, who allegedly threatened his children, called him racial slurs, and hung a noose in his locker.

In July 2011, Lee was suspended for six months without pay. NS claimed it suspended Lee for drinking on the job in violation of company policy. Lee claimed that the suspension was really motivated by racial and retaliatory animus. He alleged that his white supervisor drank beer on duty and was never disciplined.

Lee filed two lawsuits against NS. In the first, Lee claimed racial discrimination in violation of 42 U.S.C. § 1981. The district court granted summary judgment for NS.

In the second lawsuit, Lee claimed retaliation in violation of the whistleblower protection provision of FRSA. Lee did not bring this claim in his first lawsuit because he was required to exhaust his administrative remedies first. The district court held that the second lawsuit was barred by FRSA’s Election of Remedies provision, which forbids an employee from “seek[ing] protection under both this section and another provision of law for the same allegedly unlawful act of the railroad carrier.” 49 U.S.C. § 20109(f).

FRSA’s Election of Remedies Provision Does Not Require a Choice Between FRSA and Federal Antidiscrimination Laws

While the district court had focused on whether Lee’s first lawsuit under § 1981 was an attempt to seek protection under “another provision of law,” the Fourth Circuit clarified that the issue was whether the two lawsuits, which both challenge the same suspension, concerned “the same allegedly unlawful act.” A question of statutory interpretation is reviewed de novo.

The court first looked at the plain language of the Election of Remedies provision and concluded that that the phrase “the same unlawful act” ordinarily means that the act is unlawful for the same reasons. The court explained that the “same act” may be implicated in more than one claim yet is “allegedly unlawful” for fundamentally different reasons depending on the claim. The provision is not triggered by merely the “same act” but by “the same allegedly unlawful act.”

Looking beyond the meaning of the words, the court reasoned that accepted grammatical rules also support its interpretation of the phrase. There is no comma between “same” and “allegedly unlawful act,” suggesting that “same” modifies the entire phrase and “unlawful act” should be read as a unit. If “same” and “allegedly unlawful” both independently modify “act,” then the adjectives should be separated by a comma per several widely respected style guides.

While the court found the provision unambiguous—that is, capable of only one reasonable interpretation—it noted that the result would have been the same even if it had found the provision ambiguous: the legislative history and context of the statute showed that the Election of Remedies provision was “only intended to bar railroad employees from seeking duplicative relief under overlapping anti-retaliation or whistleblower statutes that provide protections similar to the protections in FRSA.” Thus, the Election of Remedies provision would apply to potential claims under the Occupational Health and Safety Act (OSH Act) and various state versions of the OSH Act since those statutes, like FRSA, are aimed at preventing retaliation for engaging in protected whistleblowing activities regarding safety and health in the workplace.

The court also pointed to a 2007 amendment to FRSA that states that nothing in the FRSA’s retaliation provision is to “diminish” other rights of employees under “any” law. 49 U.S.C. § 20109(h). Quoting approvingly from a Sixth Circuit opinion, the Fourth Circuit explained that the Election of Remedies provision, if construed as NS suggested, would dilute an employee’s rights since“[r]estricting an employee to only one of the numerous arrows in his quiver obviously reduces the number of options available to him.” Norfolk S. Ry. Co. v. Perez (6th Cir. 2015).

FRSA’s Election of Remedies Provision Does Not Bar Lee’s Suit

Although both of Lee’s lawsuits challenge the same “act”— his suspension by NS—the Fourth Circuit agreed with Lee that a suspension on the basis of race is not “the same allegedly unlawful act” as a suspension in retaliation for railway safety whistleblowing. The court explained that a suspension in itself is not unlawful. An “unlawful act” must have a basis in the law. Since Lee’s claims were based in different laws they did not concern the “same allegedly unlawful act.”

The court emphasized that the laws implicated here, § 1981 and FRSA, have different aims and give rise to distinct causes of action with different elements and burdens of proof. FRSA seeks to prevent retaliation for engaging in protected whistleblowing activities regarding railway safety while § 1981 aims to halt racial discrimination. FRSA’s Election of Remedies provision therefore does not apply to bar Lee’s second lawsuit.

The Fourth Circuit Vacated and Remanded for Further Proceedings

By Evelyn Norton

Did the District Court Abuse its Discretion in Denying Appellant’s Motions?

In Pitrolo v. County of Buncombe, NC, Plaintiff-Appellant Melanie Pitrolo claimed that the district court abused its discretion in denying each of her post-trial motions.  In its October 1, 2012 order the district court denied Appellant’s motion for attorney’s fees and declaratory relief.  Similarly, in its February 13, 2013 order the district court denied Appellant’s motion to recuse, first motion to vacate, and supplemental motion to vacate.

Appellant’s Title VII Claim

In 2006, Appellant sued the County of Buncombe, North Carolina, the Western North Carolina Regional Air Quality Agency (“Agency”), the Agency’s Board of Directors, and its members in their individual capacities.  Appellant alleged that the Agency violated Title VII when it considered Appellant’s gender as a motivating factor in deciding to deny Appellant a promotion to Interim Director of the Agency’s Board.

Defendant-Appellees moved for summary judgment on all claims.  On October 10, 2007, the district court granted the motion for summary judgment and dismissed Appellant’s case.

On appeal on March 11, 2009, the Fourth Circuit vacated the district court’s summary judgment grant dismissing Appellant’s gender discrimination claim and remanded for trial.  On July 22, 2009, a jury found that while Appellees did unlawfully consider Appellant’s gender as a motivating factor in its decision, Appellant would have been denied the promotion regardless of her gender.  As a result, the district court did not award any damages.

In response, Appellant moved for attorney’s fees and declaratory judgment on August 7, 2009, but the district court declined to rule on the motion and entered judgment in favor of Appellees notwithstanding the verdict.  On appeal, the Fourth Circuit held that Appellant was entitled to seek attorney’s fees and declaratory relief, but did not consider whether such relief should be granted.

During the following month, the case was reassigned to district court Judge Reidinger.  On October 1, 2012, the district court denied Appellant’s Motion for attorney’s fees and declaratory relief.  On October 19, 2012, Appellant filed a motion demanding Judge Reidinger recuse himself, a motion to vacate the October 1 order, and a supplemental motion to vacate.

Following denial of each motion, Appellant appealed once again to the Fourth Circuit alleging that the district court abused its discretion in denying all post-trial motions.

1. The Fourth Circuit Lacked Jurisdiction to Review Appellant’s Motions for Recusal and Vacatur.

The Fourth Circuit dismissed Appellant’s claim that the district court abused its discretion in denying Appellant’s motions for recusal and vacatur in the February 13, 2013 order.  Appellant first filed her Third Notice of Appeal on October 31, 2012.  However, the district court’s February 13, 2013 order was entered more than thirty days after its October 1, 2012 order.  Thus, Appellant was required to file a separate notice of appeal to challenge the later order, but failed to do so.  Accordingly, the Fourth Circuit lacked jurisdiction.

2. The District Court Did Not Abuse its Discretion in the October 1, 2012 Order.

The Fourth Circuit affirmed the district court’s denial of Appellant’s motion for attorney’s fees and declaratory relief.

First, the Fourth Circuited noted that the district court denied Appellant declaratory judgment because it believed declaratory judgment would “do little more than simply affirm the jury’s verdict,” primarily because Appellant had not been in Appellees’ employment for several years.  However, the Fourth Circuit stated that the district court should have considered factors articulated in Aetna Casualty & Surety Co. v. Ind-Com Electric Co.

Yet, in applying these factors, the Fourth Circuit still concluded that they weighed against declaratory judgment.  Specifically, under factor one, the Fourth Circuit found declaratory relief would not clarify any issue of law.  Considering factor two, the Fourth Circuit also found declaratory relief would not resolve any uncertainties.

Second, in examining the issue of attorney fees, the Fourth Circuit considered the extent of relief sought versus that obtained, whether the legal issues were significant, and whether the litigation served a public purpose.  The Fourth Circuit first noted that Appellant did not request declaratory relief until after the jury verdict.  The Court concluded that “[t]he core of Appellant’s case had little to no precedential value to the body of Title VII case law” and that Appellant did not “accomplish some public goal other than occupying the time and energy of counsel, court, and client.”  Thus, the Fourth Circuit found that the district court did not abuse its discretion in denying Appellant’s motion for attorney’s fees and declaratory relief.

Dismissed in Part and Affirmed in Part

The Fourth Circuit dismissed Appellant’s claim that the district court abused its discretion in denying Appellant’s motions for recusal and vacatur.  However, the Fourth Circuit affirmed the district court’s denial of Appellant’s motion for attorney’s fees and declaratory relief.

By Michael Mitchell

Can the Central Intelligence Agency Be Held Liable for Discrimination in Hiring Decisions when the Plaintiff Has Exhausted His Administrative Options?

In Doe v. Brennan, the Fourth Circuit considered whether the district court’s grant of summary judgment in favor of the Central Intelligence Agency (“CIA”) was reasonable in an employment discrimination claim.

CIA Allegedly Refuses to Hire Based on Disability

John Doe brought suit against the CIA after his conditional offer of employment was rejected and he was not allowed to reapply for employment with the agency.  Doe alleged that the CIA discriminated against him based on a disability, Diabetes, Type I, in violation of the Rehabilitation Act of 1973, which was later amended by the Workforce Innovation and Opportunity Act in 2014.  The district court granted summary judgment in favor of the CIA primarily because the plaintiff failed to exhaust his remedies as well as “fail[ing] to establish an adverse employment action.”

No Genuine Issue of Material Fact

Summary judgment is only appropriate when “there is no genuine issue as to any material fact . . . and the movant is entitled to judgment as a matter of law.”  In order to determine whether there is a genuine issue of material fact, the court reasonably considers the facts of the case “in the light most favorable to the nonmoving party.”

No Reversible Error

In an unpublished per curiam decision under de novo review, the court found that there was no reversible error, as the plaintiff alleged in his complaint.  Summary judgment was appropriate in this case because there was no genuine issue of material fact, and therefore, the CIA was entitled to judgment as a matter of law.

Fourth Circuit Affirmed Summary Judgment for CIA

The Fourth Circuit affirmed summary judgment in favor of the CIA, rejecting the Plaintiff’s employment discrimination claim.  After considering the standard for summary judgment, the court found that “there [wa]s no genuine issue as to any material fact.”