Wake Forest Law Review


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.


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.


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.


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.


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.


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.



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.




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.


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.


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.”

The Coming Crisis in Law Enforcement and How Federal Intervention Could Promote Police Accountability in a Post-Ferguson United States[1]

Kami Chavis Simmons*


Officer Darren Wilson’s fatal shooting of Michael Brown has reignited a fierce debate about the issue of racial bias in law enforcement.[2] Although tensions between racial minorities and police officers have long existed in our nation, the civil unrest in Ferguson, Missouri following Michael Brown’s death has catapulted the issue to the forefront of the criminal justice reform agenda. The small St. Louis suburb has become synonymous with tanks, tear gas, and rubber bullets after many people gathered in the street and marched to express outrage at the shooting of the unarmed teen.[3] In the days that followed, supporters of Michael Brown, and even the journalists covering the unfolding events, experienced first hand the aggressive police tactics that many inner city urban residents have complained about for years.[4] The proliferation of aggressive, and sometimes militarized, police tactics represents the “coming crisis” in law enforcement, although many residents of these communities might argue that the crisis arrived long ago. Even more disturbing is that these heavy-handed police strategies are employed almost exclusively against racial and ethnic minorities.[5]

This crisis in policing will not only negatively impact police departments and hinder their efforts to keep the public safe, but this crisis will also have negative and lasting effects on the communities experiencing these tactics.[6] After decades of discussion devoted to “community policing,” the events surrounding Michael Brown’s shooting and the police treatment of supporters in the initial days following the shooting are symptoms of a larger endemic within local police departments in the United States.[7] Criminal justice advocates would agree that police brutality, racial profiling, and over-militarization of police forces represent core civil rights issues of the twenty-first century and deserve immediate attention.[8] Aggressive police strategies are typically reserved for marginalized members of society, and there is a consensus that minorities experience a greater rate of police brutality and misconduct than their white counterparts.[9] For example, one expert explains that “police are more likely to engage in force when dealing with members of outgroups (those who are poor or minority or gender non-conforming) than when dealing with members of ingroups.”[10] The existence and severity of biased policing and its detrimental impact on racial minorities are well documented.[11]

The recalcitrance of local police departments and municipalities to implement meaningful changes is equally well documented, and many jurisdictions with serious police accountability issues have required federal intervention.[12] Policing experts have identified several characteristics of organizational police culture, including group loyalty, aggressive police tactics, and ineffective supervision and discipline of police officers, that lead to a lack of accountability and exacerbate police-community tensions.[13] These institutional factors make it difficult to properly investigate allegations of wrongdoing, including racial profiling and police brutality.

This Essay argues that in order to alleviate racial bias in policing and gain the trust and legitimacy of police officers in racially and ethnically diverse communities, local police departments must not only ensure that they are hiring police officers capable of implementing community policing, but must also focus on institutional reforms of the larger police organization. Increased transparency and accountability, as well as meaningful involvement of community members, will be hallmarks of any reform agenda aimed at curing the coming crisis in law enforcement. This Essay also addresses the important role that the federal government can and should play in achieving these goals.

I. The Importance of Addressing Bias in the Criminal Justice System

A.     Perceptions of Biased Policing Create Distrust

Given the history that our nation’s racial and ethnic communities have had with law enforcement, it is not surprising that there is widespread distrust among racial minorities when it comes to law enforcement.[14] Nearly every major moment of civil unrest in the last sixty years—including those in the Watts section of Los Angeles in 1965, Los Angeles in 1992, Cincinnati in 2001, Oakland in 2009, and most recently Ferguson, Missouri—can be linked to an incident sparked by allegation of police misconduct. Even more sobering is that each of the victims of the purported misconduct has invariably been a black male.[15] These historical events live alongside the countless anecdotal experiences with police officers that many blacks share with each other.[16] These experiences undoubtedly contribute to the negative views that blacks have regarding law enforcement. For example, a 2014 study showed that seventy percent of blacks say that police officers do a poor job of treating racial and ethnic groups equally.[17] An identical percentage of blacks say police departments around the country do a poor job in holding officers accountable for misconduct.[18] Unfortunately, even police officers themselves have acknowledged some degree of racial bias among their colleagues. For example, the Christopher Commission found that in Los Angeles, 24.5% of the 650 officers surveyed believed that “racial bias on the part of officers toward minority citizens currently exists and contributes to a negative interaction between police and the community.”[19] There is also empirical evidence to suggest that these biases are not merely perceptions, given that racial minorities are disproportionately the victims of police brutality.[20]

B.     Negative Implications of Distrust

The recent unrest in Ferguson underscores the need to address the underlying issues that sparked the community’s outrage. Unfortunately, the issues surrounding the Michael Brown shooting are not unique to Ferguson, and many residents of racially diverse communities have perceptions of racial bias in policing. For example, in New York, the stop-and-frisk policy has faced fierce criticism with many arguing that the policy is implemented in a racially discriminatory manner.[21] The full impact that this practice has had on police-community interactions is yet to be seen, but there is evidence that stop-and-frisk, as implemented by the New York Police Department, has alienated many residents of neighborhoods where it has been enforced.[22] A recent study by the Vera Institute for Justice found that young people who have been stopped more than once are less willing to report crimes to police, even when they are the victims.[23] Also, only four in ten people surveyed for the study said that they would be comfortable seeking help from the police if they were in trouble.[24] These troubling findings show that the people in communities where stop-and-frisk policies have been implemented not only distrust police when they are the subjects of stops or investigations, but they also do not even trust police to adequately help them when they are in need.

Furthermore, numerous studies demonstrate how poor police-community relations may negatively impact a community. In order to engage in effective crime detection and prevention, police officers need the trust and cooperation of residents.[25] It can be difficult to form those helpful partnerships if residents have no faith in the legitimacy of the law enforcement institution.[26] In addition to the negative implications for the communities as a whole, perceptions of racial bias in policing negatively impact individuals as well. The stigma and marginalization of the victims of racial bias exact a heavy psychological toll.[27] Despite many studies and the findings of several independent commissions charged with examining and addressing the issues of racial disparity in law enforcement,[28] the realities and perceptions of racial bias in policing persist. However, there are several concrete policy solutions the federal government could use to alleviate police-community tension and increase the transparency that is often lacking in law enforcement agencies.

II. The Federal Government’s Critical Role in Police Reform

In the wake of the Michael Brown shooting in Ferguson, there were calls for the federal government to initiate an investigation. The symbolism of a federal investigation into allegations of police misconduct and civil rights abuses should not be underestimated.   Criminal justice issues are typically viewed as “local issues,” but federal intervention is sometimes necessary where the local government has neither the resources, nor the resolve to ensure a fair proceeding or the implementation of sustainable reforms.[29] Furthermore, federal intervention can be particularly symbolic where the local community does not trust the local officials to conduct a complete investigation.[30]

While federal intervention can have a powerful symbolic impact in restoring faith and trust, there are several tangible solutions the federal government could offer to alleviate racial bias and increase transparency. The federal government could be a powerful engine to encourage reform by offering technical assistance to local jurisdictions, ensuring they meet minimum standards of accountability, and by providing monetary support to local communities, incentivizing innovation in the development of effective and sustainable reforms.

A.     Federal Dollars Should Incentivize Local Police Departments to Improve Hiring Practices and Promote Diversity

Community policing requires more than just investigating and responding to crime. This form of policing requires police officers to engage the community to set criminal justice priorities and to form partnerships that serve public-safety goals.[31] One of the primary tenets of community policing is for the community and police to work alongside each other toward the mutual goal of improving public safety.[32] Therefore, local police departments should pay attention to the types of officers they hire, and should focus on whether these officers have the “soft” skills necessary to engage with the community, while still providing effective law enforcement. This model of policing requires a different skill set than just effectuating arrests and arming someone with paramilitary equipment. Effective community policing requires good communication, interpersonal skills, and the ability to engage in problem solving.[33]

Furthermore, it is important that police departments make efforts to diversify their ranks such that the department reflects the diversity of the community it serves. During the unrest in Ferguson, many commentators focused on the fact that while the city was sixty-seven percent black, there were only three nonwhite members of the police force.[34] Such lack of racial diversity unsurprisingly sends the wrong message to residents. For example, as Paul Frymer and John D. Skrentny have noted, “to police a minority community with only white police officers can be misinterpreted as an attempt to maintain an unpopular status quo rather than to maintain the civil peace.”[35]

Thus, there has been much focus on increasing the diversity of local police departments. The view is that “minority officers can break down prejudice and stereotypes in the minds of majority officers, and . . . minority officers are better able to police a minority community because of their familiarity with the culture.”[36] Moreover, studies show that black officers “get more cooperation than white officers from black citizens and that black officers are less prejudiced against blacks and know more about the black community.”[37]

The federal government has provided funding to local law enforcement agencies for developing innovative programs designed to recruit and retain police officers to implement community policing, and many of these efforts have specifically funded projects that engage community members in the hiring process. Hiring in the Spirit of Service (“HSS”) was a federally funded project in which police departments recruited community residents to assist the department in the hiring process.[38] Participating agencies included: Burlington, Vermont; Sacramento, California; Detroit, Michigan; Hillsborough County, Florida; and King County, Washington.[39] The HSS program should be reevaluated and present in other jurisdictions to encourage police departments to involve community members in the hiring process. Involving the community at this early stage might encourage strong partnerships and help rebuild trust and legitimacy where it is lacking.

However, it is important to note that there is also conflicting evidence on whether more diverse police forces actually improve police-community relations. For example, there are studies finding that

black officers shoot just as often as white officers; that black officers arrest just as often as white officers; that black officers are often prejudiced against black citizens; that black officers get less cooperation than white officers from black citizens; and that black officers are just as likely, or even more likely, to elicit citizen complaints and to be the subject of disciplinary actions.[40]

This evidence suggests that black officers are subject to the same strong institutional factors that other officers experience. Therefore, it is important to ensure that the police organizational culture reflects standards of integrity and accountability regardless of the level of diversity within a police department.[41]

B.     The Federal Government Must Vigorously Enforce Its Pattern or Practice Authority to Require Reform of Local Law Enforcement Agencies

There is widespread consensus among police experts that police officers are operating within a larger organization, and that the organizational culture of a local police department can have a powerful impact upon individual officers.[42] Prior to 1994, it was not legally possible for the government to require a local police department to institute reforms directed at the organizational culture.[43] However, with the enactment of 42 U.S.C. § 14141, the federal government now has the authority to address the institutional factors that lead to distrust and a lack of public accountability. The “pattern or practice” authority of the U.S. Department of Justice (“DOJ”) has been used to implement organizational reforms in several jurisdictions, and the government currently has an investigation pending in Ferguson.[44] DOJ has reached agreements with several local police departments, and many of these agreements specifically include provisions to develop and implement written policies against discrimination in policing, including: nondiscrimination in traffic stops; documentation of all traffic stops by recording the driver’s race, ethnic origin, and gender; the reason for the stop and the nature of any post-stop actions; improved supervisory review of traffic stops; implementation of early warning tracking systems to identify officers who receive multiple complaints; and development and review of “use of force” policies.[45] These reforms are all aimed at increasing transparency and accountability within the department. In addition to training and developing policies to increase transparency, future agreements should squarely address issues related to promoting a diverse police department, as well as to implementing community policing.

One critique of this legislation, because it is enforced at the discretion of the Attorney General, is that enforcement may vary based upon changes in political whims, enforcement priorities within DOJ, or resource allocations.[46] Similarly, it is practically impossible for the small group of attorneys at DOJ to investigate, sue, or negotiate agreements with all of the departments nationwide that might warrant this intervention. Typically, the government has initiated investigations after a high-profile case brings attention to underlying problems. For example, the Michael Brown shooting death, although perhaps the most serious allegation of police misconduct, was not the first in Ferguson. Prior to the shooting, there had been evidence that the department disproportionately stopped black residents.[47] However, it was not until the public outcry that the federal government initiated the investigation.

While the federal government can wield a powerful weapon in the battle against police misconduct, it should not bear the sole responsibility for holding local police departments accountable. States should be encouraged to enact pattern or practice legislation based upon the federal pattern or practice legislation. In the absence of such legislation at the state level, the federal government can still play a vital role in encouraging reform and experimentation at the local level. Since 1994, the Office of Community Oriented Policing Services (“COPS”) has distributed over $12 billion of federal money to states.[48] Similarly, the federal government can also use its spending power to withhold federal funds from departments that consistently demonstrate patterns of unconstitutional conduct. Furthermore, COPS funding can be used to incentivize local police departments to create innovative training, recruitment, and reform agendas.[49]


While it is important to increase diversity within local police departments, it is perhaps more important to have officers who demonstrate the skills necessary to implement a policing model that engages rather than alienates the community. Police departments must focus on the types of officers they hire. It is logical that psychological testing of police department candidates should include tests that seek to determine the level of implicit biases an officer may harbor against particular groups. Police departments should also focus on the interpersonal skills of their officers. For example, can the officer communicate effectively with residents? Will the officer develop, or at least attempt to implement, creative solutions for crime detection and prevention? Most importantly, regardless of the officers a department hires, it is imperative that these officers are working in an organizational culture that does not tolerate or cultivate police misconduct.

            *Professor of Law and Director of the Criminal Justice Program at Wake Forest University School of Law. J.D., Harvard Law School. B.A., The University of North Carolina at Chapel Hill. The Author would like to thank Ashley Brompton and Kelsey Kolb for their invaluable research assistance.

[1].   I have borrowed a portion of my title from the 1998 essay by Dan M. Kahan and Tracey L. Meares published in the Georgetown Law Journal entitled The Coming Crisis of Criminal Procedure. Dan M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure, 86 Geo. L.J. 1153, 1153 (1998). In this essay, Kahan and Meares argued that the continued adherence to antiquated rules of criminal procedure that initially were developed to protect previously disenfranchised groups represented the “coming crisis in criminal procedure.” Id. Kahan and Meares argued that it was no longer necessary to adhere strictly to certain rules in criminal procedure because these groups had achieved an increased level of political power and now could determine the scope of their own rights. Id. at 1154. Nearly fifteen years later, I contend, instead, that the crisis in criminal procedure has arrived and it can be characterized by aggressive police tactics, racial bias in policing, and a lack of accountability of law enforcement officers, all of which are largely due to a continued lack of political power of underrepresented groups.

      [2].   On August 9, 2014, Officer Darren Wilson fatally shot an unarmed teen, Michael Brown, in Ferguson, Missouri, sparking several vigorous protests and clashes with police. See Julie Bosman & Emma G. Fitzsimmons, Grief and Protests Follow Shooting of a Teenager, N.Y. Times, Aug. 11, 2014, at A11; Adeel Hassan, Your Friday Briefing, N.Y. Times (Aug. 15, 2014), http://www.nytimes.com/2014/08/15/us/your-friday-briefing.html (identifying the officer responsible for the shooting).

      [3].   Monica Davey et al., Missouri Tries Another Idea: Call in Guard, N.Y. Times, Aug. 19, 2014, at A1.

      [4].   Abby Phillip, Police in Ferguson Arrest and Threaten More Journalists, Wash. Post (Aug. 18, 2014), http://www.washingtonpost.com/news/post-nation/wp/2014/08/18/police-in-ferguson-arrest-and-threaten-more-journalists/.

      [5].   For example, it is widely known that “[r]esidents of poor neighborhoods are more frequently subject to searches of their person in the form of overly aggressive stop and frisk tactics.” Amelia L. Diedrich, Secure in Their Yards? Curtilage, Technology, and the Aggravation of the Poverty Exception to the Fourth Amendment, 39 Hastings Const. L.Q., 297, 317 (2011).

      [6].   See Kami Chavis Simmons, Beginning to End Racial Profiling: Definitive Solutions to an Elusive Problem, 18 Wash. & Lee J. Civil Rts. & Soc. Just. 25, 41–43 (2011) (detailing the harms of racially biased policing and aggressive law enforcement tactics).

      [7].   Community policing has been defined as a form of policing that “emphasizes problem-solving and partnerships between police and the communities they serve.” Kami Chavis Simmons, Stakeholder Participation in the Selection and Recruitment of Police: Democracy in Action, 32 St. Louis U. Pub. L. Rev. 7, 8 (2012).

      [8].   See, e.g., Michael R. Smith, Depoliticizing Racial Profiling: Suggestions for the Limited Use and Management of Race in Police Decision-Making, 15 Geo. Mason U. C.R. L.J. 219, 219 (2005) (arguing that “racial profiling, a term virtually unheard of five years ago, is now part of the national lexicon” being that “[t]he last several years have seen a growing crescendo of voices concerned over racial discrimination by America’s law enforcement agencies”); Sheila A. Bedi, Seeking Transformative Justice in Ferguson, Dearborn, and Beyond, Huffington Post (Sept. 3, 2014, 12:07 PM), http://www.huffingtonpost.com/sheila-a-bedi/seeking-transformative_b_5755076.html#HuffingtonPost (finding that both “the over-militarization of our police,” and “cops around the country behav[ing] with impunity, despite national movement-based efforts to integrate transparency and accountability into policing” are to blame for the events in Ferguson); Kara Dansky, The Real Reason Ferguson has Military Weapons, CNN (Aug. 19, 2014, 6:03 PM), http://www.cnn.com/2014/08/19/opinion/dansky-militarization-police/index.html (“What we’re witnessing is the militarization of policing,” which “has become commonplace in towns across America.”). Another related issue is the school-to-prison pipeline, which represents a phenomenon where students go directly from school into the prison system, as well as the vast racial disparities in the U.S. education and criminal justice systems. Chauncee D. Smith, Deconstructing the Pipeline: Evaluating School-to-Prison Pipeline Equal Protection Cases Through a Structural Racism Framework, 36 Fordham Urb. L.J. 1009, 1018–20 (2009).

      [9].   See, e.g., Human Rights Watch, Race as a Factor, in Shielded from Justice: Police Brutality and Accountability in the United States (1998), available at http://www.hrw.org/legacy/reports98/police/uspo17.htm; Charles J. Ogletree, Jr. et al., Beyond the Rodney King Story: An Investigation of Police Conduct in Minority Communities 6–7, 16–17 (1995) (discussing police officers’ disproportionate use of excessive force against inner city residents and minorities, which has become “commonplace” and is often caused by “the forces of racism and police militarism”); Ronald Weitzer & Steven A. Tuch, Race and Policing in America: Conflict and Reform 71–72 (2006) (finding that “blacks and Hispanics are at heightened risk of mistreatment by police,” with “[y]oung minority males [being] significantly more likely” to report having experienced mistreatment by police than their older minority male, same-age minority female, and white male counterparts); Clifford L. Broman et al., The Experience and Consequences of Perceived Racial Discrimination: A Study of African Americans, 26 J. Black Psychol. 165, 174–75 (2000) (examining data that suggests younger blacks are more likely to experience discrimination from the police than older blacks, and black males are more likely than black women to perceive discrimination from the police); Craig B. Futterman et al., The Use of Statistical Evidence to Address Police Supervisory and Disciplinary Practices: The Chicago Police Department’s Broken System, 1 DePaul J. for Soc. Just. 251, 283 (2008) (finding that among a sample of police officers from the Chicago Police Department, abuse against civilians was more prevalent with those who were working in “certain parts of the City—generally lower-income African American and Latino communities”); Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333, 388–90 (1998) (providing an example of the New York City police force, which claims to be “the nation’s most professional and well-trained police force,” and yet “deadly force, brutality, and abuse of power by officers remains a problem in [the city’s] minority communities”).

    [10].   I. Bennett Capers, Crime, Surveillance, and Communities, 40 Fordham Urb. L.J. 959, 982 (2013) (citing statistical evidence presented in Tennessee v. Garner, 471 U.S. 1 (1985), that showed “significant disparities in the use of deadly force based on the race of the shooting victim/suspect and that virtually all of this disparity occurs as a result of the Memphis policy that allows officers to exercise their discretion to shoot fleeing property crime suspects”).

    [11].   For example, in 1968, The National Advisory Commission on Civil Disorders (also known as the Kerner Commission), found that “[a]lmost invariably the incident that ignites disorder arises from police action. Harlem, Watts, Newark and Detroit—all the major outbursts of recent years—were precipitated by arrests of Negroes by white officers for minor offenses.” Otto Kerner et al., Report of the National Advisory Commission on Civil Disorders 93 (1968). As a result, “to many Negroes police have come to symbolize white power, white racism, and white repression.” Id. Yet, “many police do reflect and express these white attitudes. The atmosphere of hostility and cynicism is reinforced by a widespread perception among Negroes of the existence of police brutality and corruption and of a ‘double standard’ of justice and protection—one for Negroes and one for whites.” Id.

    [12].   The U.S. Department of Justice has intervened in Seattle, New Orleans, Los Angeles, and Oakland, among others. Justin Worland, These 4 Cities Show What Federal Intervention Could Look Like in Ferguson, Time (Aug. 15, 2014), available at http://time.com/3114010/ferguson-st-louis-missouri-obama/.

    [13].   See Kami Chavis Simmons, New Governance and the “New Paradigm” of Police Accountability: A Democratic Approach to Police Reform, 59 Cath. U. L. Rev. 373, 381–89 (2010) (describing police organizational culture).

    [14].   I. Bennett Capers, Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle, 46 Harv. C.R.-C.L. L. Rev. 1, 2 (2011) (noting that underenforcement, overenforcement, and “testilying” in cases involving minority defendants is pervasive and that these methods of policing contribute to racial tension and continuing high levels of distrust between minorities and police).

    [15].   See Cynthia Lee, “But I Thought He Had a Gun”: Race and Police Use of Deadly Force, 2 Hastings Race & Poverty L.J. 1, 23 (2004) (noting that the 2001 riots in Cincinnati were incited by citizen indignation of perceived brutality against African American males after six years of police shootings killed fifteen African American males); Bryce Clayton Newell, Crossing Lenses: Policing’s New Visibility and the Role of “Smartphone Journalism” as a Form of Freedom-Preserving Reciprocal Surveillance, 2014 U. Ill. J.L. Tech. & Pol’y 59, 66–67 (noting that riots in Oakland, California started after a white officer was convicted of involuntary manslaughter, rather than murder, in the shooting death of Oscar Grant, a young, black man, who was shot for “resisting restraint”); L. Darnell Weeden, Johnnie Cochran Challenged America’s New Age Officially Unintentional Black Code; A Constitutionally Permissible Racial Profiling Policy, 33 T. Marshall L. Rev. 135, 148 (2007) (noting that the Watts Riots started after eye witnesses reported that white police officers used excessive force in arresting two African American suspects).

    [16].   See, e.g., Michaela Angela Davis, Black Moms Shouldn’t Have to Have ‘The Talk,’ CNN (Aug. 25, 2014, 10:03 AM), http://www.cnn.com/2014/08/20/opinion/davis-michael-brown-mother/index.html?iref=allsearch.

    [17].   Pew Research Ctr., Few Say Police Forces Nationally Do Well in Treating Races Equally 2 (2014), available at http://www.people-press.org/files/2014/08/8-25-14-Police-and-Race-Release.pdf.

    [18].   Id.

    [19].   See Indep. Comm’n on the L.A. Police Dep’t, Report of the Independent Commission on the Los Angeles Police Department 69 (1991) [hereinafter The Christopher Commission], available at http://www.parc.info/client_files/special%20reports/1%20-%20chistopher%20commision.pdf.

    [20].   See I. Bennett Capers, Crime, Legitimacy, and Testilying, 83 Ind. L.J. 835, 846 (2008) (citing statistical information that blacks and Hispanics are disproportionately victims of police violence); see also Amnesty Int’l, United States of America: Police Brutality and Excessive Force in the New York City Police Department 27 (1996), available at http://www.amnesty.org/en/library/asset/AMR51/036/1996/en/7b6bf842-eb05-11dd-aad1-ed57e7e5470b/amr510361996en.pdf (reporting that nearly all victims who died in New York City police custody between 1988 and 1995 were racial minorities).

    [21].   See Steven Zeidman, Whither the Criminal Court: Confronting Stops-and-Frisks, 76 Alb. L. Rev. 1187, 1195, 1197 (2012–2013) (“[T]he NYPD brazenly uses Terry to defend, and perpetuate, vast numbers of stops-and-frisks and enormous racial disparities in who gets stopped.”).

    [22].   See Jennifer Fratello et al., Coming of Age with Stop and Frisk: Experiences, Self-Perceptions, and Public Safety Implications 16 (Vera Inst. for Justice 2013), available at http://www.vera.org/sites/default/files/resources/downloads/stop-and-frisk-summary-report.pdf (discussing public perceptions of New York City police, in light of the stop-and-frisk policy wherein only fifteen percent of those polled believed that the police were honest and only twelve percent believe that residents of their neighborhood trust the police).

    [23].   Id. at 17.

    [24].   Id. at 15–16.

    [25].   Tom R. Tyler & Jeffery Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities, 6 Ohio St. J. Crim. L. 231, 233 (2008).

    [26].   Id. at 238–39.

    [27].   See, e.g., Fratello et al., supra note 22, at 19 (citing two studies that found an increase in “deviant persona and behavior” by individuals who were frequently stopped by police officers).

    [28].   See, e.g., William J. Bratton, Neighborhood Policing: A Plan of Action for the Boston Police Department 29 (1992), http://www.popcenter.org/library/unpublished/OrganizationalPlans/17_Neighborhood_Policing.pdf (examining the Boston Police Department and its relation to racial tensions in the community); The Christopher Commission, supra note 19, at 3–4 (explaining that the Christopher Commission was formed in 1991 to study the Los Angeles Police Department in the wake of the Rodney King beating); Milton Mollen et al., Report of the Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department 1 (1994), http://www.parc.info/client_files/special%20Reports/4%20-%20Mollen%20Commission%20-%20NYPD.pdf (explaining how the Mollen Commission was formed in 1992 to study the New York City Police Department and racial tensions that had been a major issue).

    [29].   See 42 U.S.C. § 14141 (2006) (authorizing the Attorney General to conduct investigations and, if warranted, file civil litigation to eliminate a “pattern or practice of conduct by law enforcement officers . . . that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States”); see also Special Litigation Section Cases and Matters, U.S. Dep’t of Just., http://www.justice.gov/crt/about/spl/findsettle.php#police (last visited Sept. 25, 2014) (linking to cases and matters in Los Angeles, the District of Columbia, Portland, East Haven, and several other cities that have experienced federal intervention into criminal justice issues).

    [30].   Robert N. Driscoll, Don’t Expect the Feds to Find Much in Ferguson, Nat’l Rev. Online (Aug. 16, 2014, 4:00 AM), http://www.nationalreview.com/article/385538/dont-expect-feds-find-much-ferguson-robert-n-driscoll (“The community in Ferguson . . .  demand[s] ‘justice,’ including the prosecution of the officer for murder, or in the alternative, prosecution by the United States Department of Justice Civil Rights Division for violation of Brown’s civil rights.”).

    [31].   Simmons, supra note 7.

    [32].   Id.

    [33].   David L. Carter, Human Resource Issues for Community Policing, Mich. St. U. Sch. Crim. Just. 1, 1 available at http://cj.msu.edu/assets/Outreach-NCCP-ES3.pdf (last visited Sept. 28, 2014) (describing some of the characteristics necessary for police officers doing community policing); Ellen Scrivner, Innovations in Police Recruitment and Hiring: Hiring in the Spirit of Service, U.S. Dep’t of Just. 81, 87–96 app. A, available at http://www.cops.usdoj.gov/Publications/innovationpolicerecruitmenthiring.pdf (last visited Sept. 28, 2014) (explaining the various competencies that should be evaluated during the hiring process within police departments, as well as positive and counterproductive behaviors of potential officers, as outlined by the California Commission on Patrol Officer Psychological Screening Dimensions).

    [34].   Glenn E. Rice & Tony Rizzo, Like Ferguson, Area Police Departments Lack Racial Diversity, The Kansas City Star (Aug. 25, 2014, 1:46 PM), http://www.kansascity.com/news/local/crime/article1282013.html.

    [35].   Paul Frymer & John D. Skrentny, The Rise of Instrumental Affirmative Action: Law and the New Significance of Race in America, 36 Conn. L. Rev. 677, 691 (2004).

    [36].   Id.

    [37].   David Alan Sklansky, Not Your Father’s Police Department: Making Sense of the New Demographics of Law Enforcement, 96 J. Crim. L. & Criminology 1209, 1224–25 (2006).

    [38].   See Ellen Scrivner, U.S. Dep’t of Just. Off. of Cmty. Oriented Policing Servs., Innovations in Police Recruitment and Hiring: Hiring in the Spirit of Service 16 (2006), available at http://www.cops.usdoj.gov/pdf/vets-to-cops/innovationpolicerecruitmenthiring.pdf.

    [39].   Id. at 11.

    [40].   Sklansky, supra note 37, at 1124.

    [41].   See Simmons, supra note 6, at 46–47.

    [42].   See Simmons, supra note 13, at 381 (noting that the basis of police misconduct is the organizational culture of police departments); see also Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453, 455 (2004) (asserting that it is a mistake to view misconduct as the result of the flawed judgments of individual officers rather than as induced by an organizational culture); Samuel Walker, The New Paradigm of Police Accountability: The U.S. Justice Department “Pattern or Practice” Suits in Context, 22 St. Louis U. Pub. L. Rev. 3, 24 (2003) (noting that it is the organizational culture of law enforcement agencies and not the conduct of individual officers that breeds police misconduct).

    [43].   See 42 U.S.C. § 14141 (2006).

    [44].   Pete Williams, Justice Department to Investigate Ferguson, Missouri, Police, NBC News (Sept. 3, 2014, 8:32 PM), http://www.nbcnews.com/storyline/michael-brown-shooting/justice-department-investigate-ferguson-missouri-police-n195271.

    [45].   See, e.g., Memorandum of Understanding Between, The Montana Attorney General, The Missoula County Attorney’s Office, Missoula County, and The United States Department of Justice (June 10, 2014), available at http://www.justice.gov/crt/about/spl/documents/missoula_settle_6-10-14.pdf (listing the different procedures the police department was required to implement pursuant to the written policy).

    [46].   See Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the Federal Reform of Local Law Enforcement Agencies, 98 J. Crim. L. & Criminology 489, 515–19 (2008) (citing lengthy investigation periods, lack of aggressive enforcement, and lack of political will among critiques of § 14141).

    [47].   In 2013, the Ferguson Police Department stopped 686 whites compared to 4632 blacks. Mo. Att’y Gen.’s Office, Racial Profiling data: Ferguson Police Department 1 (2013), available at http://ago.mo.gov/VehicleStops
/2013/reports/161.pdf. According to the Missouri Attorney General’s Office, the disparity index (the proportion of stops divided by the proportion of the population) is .38 for whites and 1.37 for African-Americans. Id. A disparity index value greater than 1 indicates over-representation and a disparity index value less than 1 indicates under-representation. Id.

    [48].   See Drew Diamond & Deirdre Mead Weiss, Dep’t of Cmty. Oriented Policing Servs. U.S. Dep’t of Just., Community Policy: Looking to Tomorrow 38 (2009), available at https://www.ncjrs.gov/pdffiles1/Archive

    [49].   See generally Kami Chavis Simmons, Cooperative Federalism and Police Reform: Using Congressional Spending Power to Promote Police Accountability, 62 Ala. L. Rev. 349 (2011) (explaining of how the federal spending power might be used to encourage police reform at the local level).

PDF, Coming Crisis in Law Enforcement, Kami Chavis Simmons