Wake Forest Law Review
6Oct

Fourth Circuit Affirms Summary Judgment for School District in ADA Case

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By Anthony Biraglia

In a published opinion released on June 15, 2015, the Fourth Circuit affirmed a Maryland district court’s dismissal of a complaint for failure to state a claim and grant of summary judgment in the civil case of Adams v. Anne Arundel County Public Schools. Plaintiff Andrew Adams (“Adams”) alleged that Defendant Anne Arundel County Public Schools (“the School District”), and more specifically the Board of Education (“the Board”), violated his rights under the Family and Medical Leave Act of 1993 (“FMLA”), the Americans With Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and Maryland state law. The district court dismissed the state law and Title VII claims, and granted summary judgment to the School District on both the FMLA and ADA claims. Adams appealed the summary judgment decision. The Court found no merit to Adams’s allegations that Board (1) interfered with his medical leaves, (2) retaliated against him for those leaves, (3) discriminated and retaliated against him on the basis of his disability, and (4) failed to accommodate his condition, and thus it affirmed the district court’s ruling.

Incident with Student, Medical Leaves, and Reassignment

Adams, an assistant middle school principal in the School District, was involved in a physical altercation with a student on January 19, 2010, that resulted in investigations by both Child Protective Services (“CPS”) and the Board. Adams was temporarily reassigned until a February 24, 2010, meeting with Board investigators, after which he was placed back at his original school. Although Adams, asserting he was shown a document at the February 24 meeting clearing him of all charges, believed the Board’s investigation was over at this point, the Board denied that it had shown him such a document and continued its investigation. On April 12, The Board notified Adams of a May 6, 2010, pre-disciplinary conference, which was delayed four days to allow Adams’s attorney to attend. Two weeks later, he was issued a formal reprimand, and the Board took no further disciplinary action.

Upon reassignment to his original school on February 25, 2010, Adams went on the first of three medical leaves. This leave came at the advice of an internal medicine specialist who diagnosed Adams with stress, anxiety, and high blood pressure resulting from the January 19 incident. After returning to school on March 3, 2010, Adams again went on leave after being “berated” by the principal and suffering a panic attack. Adams claimed he was berated again, this time in front of other staff, when he returned on March 8., 2010. Two weeks later he began his third leave, when a psychiatrist diagnosed him with acute stress disorder. Both Adams’s psychiatrist and the Board’s psychiatrist recommended that Adams be assigned to a lower-stress environment when he returned to work.

After being cleared to work on July 28, 2010, Adams was reassigned to a significantly smaller school for children with behavioral issues. Pursuant to a union contract, his pay remained the same for the first two years at the new school, and was subsequently reduced by less than one percent based on his position at a smaller school. Adams was also disqualified from some discretionary bonuses for administrators at larger schools. By all accounts, Adams “excelled” at the new school.

Adams Files Suit

Adams originally filed this lawsuit in Maryland state court, and the School District removed to federal court (presumably on the basis of federal question jurisdiction). The district court, after allowing Adams to amend his original complaint, dismissed the Title VII and state law claims. After discovery, the district court granted summary judgment to the School District on both the FMLA and ADA claims.

Adams appealed the grant of summary judgment on the FMLA and ADA claims. The Fourth Circuit reviews summary judgment motions de novo, viewing all facts in the light most favorable to the non-moving party.

The Board Did Not Interfere with Adams FMLA Rights or Retaliate Against Him for Exercising Those Rights

An interference claim under the FMLA consists of three elements. The employee must demonstrate that (1) she is entitled to an FMLA benefit, (2) her employer interfered with the provision of that benefit, and (3) the interference caused harm. The Court noted that interference claims generally arise when an employee is denied FMLA benefits, which was not the case with Adams. However, discouraging an employee from taking FMLA leave through adverse employment actions can also constitute interference. The Court dismissed Adams’s contentions that unnecessary medical examinations (which were in fact authorized by the FMLA), the pre-disciplinary conference, and the verbal and written reprimands he received constituted actionable interference under the FMLA. In the Court’s view, none of these actions were adverse employment actions within the context of the statute.

The Court also found that the Board’s actions toward Adams were not retaliatory. Both actions that Adams alleged were retaliatory, namely reopening the investigation and transferring him to a smaller school, were simply not retaliatory in the Court’s view. The Court observed that the investigation was never closed, and thus could not have been reopened to retaliate against Adams, and that the transfer was actually recommended by Adams’s own doctors. In fact, the Court opined, the Board made efforts to accommodate Adams rather than retaliate against him.

The Board Did Not Discriminate or Retaliate Against Adams Based on His Disability

Adams’s claims under the ADA arose out of the same operative facts as his claims under the FMLA. Specifically, Adams alleged that the verbal attacks by the principal, the continued investigation, the written reprimands, and the medical examinations constituted ADA violations by the Board, and the transfer to a smaller school was failure to reasonably accommodate his disability.

An element of both the discrimination and retaliation aspects of Adams’s ADA claim is that the plaintiff must have suffered an adverse employment action, which the Fourth Circuit defined as “some direct or indirect impact on an individual’s employment as opposed to harms immaterially related to them.” The Board’s actions of which Adams complained did not, in the eyes of the Court, rise to the level of adverse employment actions. As the Court pointed out in its analysis of the FMLA claim, the decision to transfer Adams to a different school (which was the Board’s only action that had any material affect on Adams’s employment), was made at the behest of Adams’s own doctors.

Affirmed

Because Adams failed to create a triable issue of fact on both his FMLA and ADA claims, the Fourth Circuit affirmed the district court’s decision to grant summary judgment to the School District.

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29Sep

Fourth Circuit Holds that Nassar Does Not Alter “McDonnell Doulgas” Test

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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.

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22Sep

Fourth Circuit Overturns District Court’s Class Decertification

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By Cate Berenato

On May 11, 2015, in the published civil case Brown v. Nucor Corp., the Fourth Circuit held that a South Carolina district court erred in decertifying a class of workers who claimed that their employer, Nucor Corporation and Nucor Steel Berkeley (“Nucor”), engaged in discriminatory job promotion practices under Title VII of the Civil Rights Act of 1964 (“Title VII”). Though the district court believed that the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes (“Wal-Mart“) allowed it to reconsider the class’s certification, the Fourth Circuit disagreed.

Workers Sue Nucor but the District Court Determined They Do Not Meet the Requirements for Class Certification

Nucor is a steel plant in South Carolina. Statistics gathered from the plant’s change-of-status forms filed between 1999 and 2003 showed that Nucor had only one black supervisor, though seventy-one of its 611 employees were black. Additionally, the workers’ evidence showed that Nucor managers failed to respond to complaints of discrimination and retaliation, ignored a promotion policy by giving supervisors discretionary promotion power, and allowed supervisors to repeatedly call black workers derogatory names and display racist symbols.

The workers sued Nucor under Title VII, which prohibits employers from discriminating against employees because of race. The workers claimed that Nucor’s supervisors disparately treated black workers when making promotion decisions. They also claimed that Nucor’s promotion practices disparately impacted black workers.

In 2007, the South Carolina district court denied the workers’ motion for class certification for their discriminatory promotion and hostile work environment claims. The Fourth Circuit reversed and remanded because the workers satisfied the requirements of Federal Rule of Civil Procedure 23.  While the district court originally recertified  the promotions class, it revoked this certification based on its reading of Wal-Mart. The district court stated that under Wal-Mart’s heightening of Federal Rule of Civil Procedure 23(a)(2)’s commonality requirement, the workers did not have “significant proof” that Nucor “operated under a general policy of discrimination” or that the class members suffered from a common injury.

Commonality and Standard of Review

The issue in this case was whether the Nucor workers presented “a common question of employment discrimination through evidence of racism in the workplace.” The standard of review was abuse of discretion.

The Class Established Commonality Under Rule 23(a)(2)

A district court can reexamine a class certification if the controlling legal authority has dramatically changed. While the Fourth Circuit stated that Wal-Mart qualified as a dramatic change, it decided that the district court abused its discretion when it decided the Nucor workers had not met  Rule 23(a)(2)’s commonality requirement. It noted that “the district court had no grounds to revisit the question of predominance” under Rule 23(b).

Rule 23(a)(2) states that a class action is valid if there are questions of law or fact common to the class. The Nucor workers established commonality based on (1) statistical evidence, (2) evidence of a general policy of discrimination and a common injury, and (3) proof that Nucor supervisors exercised discretion in a common manner.

In this case, the workers’ statistics were significant for racial discrimination. Nucor’s change-of-status forms revealed that only one black employee of Nucor’s 611 employees was in a supervisory role. This was statistically significant at 2.54 standard deviations “from what would be expected if race were a neutral factor.”

The workers demonstrated a class-wide injury. Though the district court stated that the Wal-Mart Court did not find a class-wide injury among the 12,500 class members representing 235 Wal-Mart stores, the Fourth Circuit noted that Nucor was just a single plant and the workers’ class included only 100 members. Nucor’s “centralized, circumscribed environment . . . increase[d] the uniformity of shared injuries” and the “consistency with which managerial discretion [was] exercised.”

The workers provided evidence of a general policy of discrimination. The evidence included management tolerance of “bigoted epithets and monkey noises broadcast across the plant radio system, emails with highly offensive images . . . a hangman’s noose . . . and abundant racist graffiti in locker rooms.”

The workers demonstrated that Nucor supervisors had a “common mode of exercising discretion” in promotion decisions. At Nucor, employees could bid on positions available in other departments, but managers had to approve the change of status. The workers provided substantial evidence that the department heads impeded the upward mobility of black workers and that the general manager ignored promotion discrimination complaints. One of the department heads even stated, “I don’t think we’ll ever have a black supervisor while I’m here.”

Commonality Established and Case Remanded

The workers established commonality under Rule 23(a)(2). The Fourth Circuit vacated the district court’s decertification and remanded the case. Judge Agee dissented because the majority allegedly did not afford “substantial deference” to the district court or to Wal-Mart.

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8Sep

Fourth Circuit Denies Coal Mine Operator’s Petition, Affirms Black Lung Benefits for Miner

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By Anthony Biraglia

In the civil case of Hobet Mining, LLC v. Epling, the Fourth Circuit affirmed an administrative law judge’s (“ALJ”) award of benefits to a coal miner under 30 U.S.C. 901(a), known as the Black Lung Benefits Act (“Act”). The Court agreed with the Benefits Review Board’s decision that substantial evidence supported the ALJ’s finding that the miner was entitled to the statutory fifteen-year presumption (“Presumption”) in § 921(c)(4), which provides that miners employed for more than fifteen years in an underground coal mine presumptively qualify for benefits under the Black Lung Benefits Act when they can prove existence of a totally disabling respiratory impairment. In a published opinion released on April 17, 2015, the Court denied the mine operator’s petition for review when it failed to rebut the presumption.

Facts and Procedural History

The Act aims to give benefits to those totally disabled due to pneumoconiosis, more commonly known as black lung disease. Carl Epling (“Epling”) qualified for benefits under the Act because he spent more than twenty-one years in an underground coal mine, most recently for Hobet Mining, LLC (“Hobet”) in 1999, and subsequently developed medical conditions that rendered him totally disabled for the purposes of the Act.

The ALJ reviewing Epling’s claim applied the Presumption under § 921(c)(4), and awarded benefits to Epling when Hobet was unable to overcome the Presumption. The Benefits Review Board affirmed the ALJ’s decision, and Hobet appealed to the Fourth Circuit.

Issue and Standard of Review

On appeal, Hobet argued that it did overcome the Presumption, and thus the ALJ’s decision to apply the Presumption was not supported by substantial evidence. The Presumption consists of two prongs. First, the ALJ presumes that the claimant’s pneumoconiosis arises from his coal mine employment. Hobet did not contest that prong on appeal. Instead, Hobet contested the second prong of the Presumption, which requires the ALJ to presume that a claimant’s pneumoconiosis is a cause of his disability. Hobet argued that the ALJ erred in discounting the testimony of one of Hobet’s experts, who opined that Epling’s pneumoconiosis was not a cause of his medical problems. The Fourth Circuit’s review of claims under the Act is “limited,” and the Court only considers whether the findings of the ALJ were supported by substantial evidence, legally rational, and consistent with the Act.

Holding

The ALJ’s decision to discredit the expert’s causation testimony was supported by substantial evidence because the testimony was based on an erroneous finding that the claimant did not have pneumoconiosis.

Reasoning

The Court, citing precedent on this issue, reasoned that it is extremely difficult for a doctor that does not recognize the existence of pneumoconiosis to account for its contribution, or lack thereof, to a claimant’s medical condition. For this reason, expert opinions that do not diagnose pneumoconiosis are to be discredited unless the ALJ identify specific reasons why the causation testimony is legitimate despite the failure to diagnose pneumoconiosis, and even then may not be assigned significant weight. The Court found that Hobet’s expert did not provide separate reasons for his opinion that pneumoconiosis was not a cause of Epling’s condition, and thus his testimony was properly discredited based on his failure to diagnose pneumoconiosis at the outset. Accordingly, the Fourth Circuit affirmed the Benefits Review Board’s decision, and upheld Epling’s award.

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8Sep

Fourth Circuit Rules on Allegations of Unfair Labor Practices

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By Cate Berenato

Issues and Holdings

On September 8, 2015, in the civil case Intertape Polymer Corp. v. N.L.R.B., the Fourth Circuit granted in part and denied in part Intertape Polymer Corporation’s (“Intertape”) petition for review of a National Labor Relations Board (“the Board”) order. The Board found that Intertape violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) when it (1) interrogated an employee about his views of a union; (2) confiscated union literature from an employee break room; and (3) surveilled employees’ activities when it handed out company leaflets while union members also handed out leaflets. The Fourth Circuit considered whether Intertape violated the NLRA for the above three reasons. It decided that Intertape did not violate the NLRA when it handed out the company leaflets, but agreed that Intertape violated the NLRA when it interrogated an employee and confiscated union literature.

Factual Background

Intertape is a tape manufacturing facility in South Carolina. In December 2011, Bill Williams, an Intertape employee and supervisor, asked employee Johnnie Thames what he thought of a union and said “[the union] can hurt you.” In 2012, a union launched a campaign to organize the facility’s employees. On three occasions after the union campaign began, Williams went into the employee break room and removed union flyers from the room. Intertape supervisors had not removed literature before the union campaign began. Finally, two days before the election, Intertape handed out leaflets to Intertape employees at the gate of the plant at the same time that union members handed out leaflets.

Intertape Violated the NLRA When it Interrogated Thames

Under the NLRA, an employer may question an employee about his or her union sentiments unless the questioning is coercive. The Fourth Circuit stated that Williams’ questioning of Thames was coercive and threatening because he was Thames’ direct supervisor. The Court also considered Williams’ remark to Thames, “[the union] can hurt you,” to be threatening and coercive. The Court accepted the Board’s determination that Thames was credible in his recounting of the conversation with Williams.

Intertape Violated the NLRA When it Removed Union Flyers from the Employee Break Room

Section 7 of the NLRA protects concerted employee activity, including soliciting support for a union and distributing union literature. An employer may not remove union materials from nonwork areas. It is not a violation of the NLRA if an employer’s housekeeping policy causes the incidental removal of union material from such areas. In this case, Williams removed union literature from the break room on three occasions after the campaign began, though he had not done so beforehand. The break room is not a work area. Additionally, the Court did not find that Williams was performing housekeeping duties when he removed the literature.

Intertape Did Not Violate the NLRA When It Distributed Its Own Flyers While the Union Distributed Its Flyers

An employer may, in close proximity, observe employees on company premises during union activities without violating the NLRA. An employer may not observe union activities if the observation chills the exercise of employees’ rights under the NLRA. The test for whether such observation chills employees’ right is whether or not it coerces employees or interferes with their rights. Additionally, the First Amendment and the NLRA protects an employer’s right to distribute literature to its employees during a campaign.

Here, the Board stated that Intertape’s behavior was unlawful because it was “out-of-the-ordinary” and because supervisors could see employees collecting literature from union members. However, the Fourth Circuit suggested that Intertape’s actions of handing out leaflets was not out-of-the-ordinary in light of the election. Additionally, while the supervisors could see employees interacting with union supporters, the supervisors observed this only briefly and there is no evidence of excessive surveillance or “watching” at all. The Court did not find that Intertape went to the gates of the facility to hand out leaflets with the purpose of spying on the Intertape employees.

The Fourth Circuit Granted In Part and Denied In Part the Board’s Order

The Fourth Circuit agreed with the Board that Intertape violated the NLRA when it questioned Mr. Thames and removed flyers from the break room. It did not agree that Intertape violated the NLRA when it handed out its own flyers while union supporters did the same. The Court remanded to the Board to alter its order to comply with this decision.

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20Feb

Fourth Circuit Affirms Summary Judgment Grant in Employer’s Favor

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By Evelyn Norton

Today in a published opinion, EEOC v. Freeman, the Fourth Circuit affirmed the decision of the United States District Court for the District of Maryland to grant summary judgment to the national employer Freeman. 

The District Court Found the EEOC Could Not Establish a Prima Facie Case of Discrimination

In 2001, Freeman began conducting criminal background checks and credit history checks for job applicants.  If these histories revealed certain prohibited criteria, Freeman excluded the applicant. In 2006, Freeman modified its criteria and, later in 2011, stopped conducting credit history checks.

In response to an applicant’s filing of a charge of discrimination against Freeman in 2008, the EEOC began its investigation of Freeman’s background and credit check policy. In 2009, the EEOC issued a letter of determination announcing its finding that Freeman’s background and credit checks violated Title VII. Subsequent to a failed conciliation, the EEOC filed suit against Freeman.  The EEOC alleged that Freeman’s background checks had a disparate impact on black and male job applicants and Freeman’s credit checks had a disparate impact on black job applicants.

Eight days after the discovery disclosure deadline, the EEOC filed an amended report by its expert witness, Kevin Murphy.  The report included slightly altered calculations.  In response, Freeman moved to exclude all of the EEOC’s witness reports and moved for summary judgment.  The district court granted Freeman’s motion to exclude  Kevin Murphy’s testimony, finding the report unreliable under the Federal Rule of Evidence 702. The EEOC was unable to establish a prima facie case of discrimination without the testimony.  As a result, the district court also granted Freeman’s motion for  summary judgment.

The District Court Did Not Abuse Its Discretion in Excluding the Expert Testimony

The Fourth Circuit reviewed the district court’s decision to exclude the expert testimony for an abuse of discretion.  The Court observed that pursuant to Federal Rule of Evidence 702, expert testimony is only admissible if it “rests on a reliable foundation and is relevant.” However, the Court found that the expert testimony’s “mind-boggling” errors supported the district court’s conclusion that the testimony was unreliable.

The Expert Testimony Included Numerous Errors

The Fourth Circuit observed that the district court identified an “alarming” number of errors and analytical fallacies in the expert’s reports.  For example, the reports neglected to include hundreds of applicant background check logs that Freeman had submitted to the EEOC.  The expert also failed to utilize a sample size from the relevant time period and omitted data from half of Freeman’s branch offices.  Thus, the Court found that the “sheer number of mistakes and omissions” in the reports rendered it beyond a range where experts could reasonably differ.  Therefore, the Court concluded that the district court did not abuse its discretion in excluding the expert testimony.

The Court affirmed the grant of Freeman’s motion for summary judgment solely on the basis that the district court did not abuse its discretion  in granting Freeman’s motion to exclude the EEOC’s expert testimony.

 Summary Judgment Affirmed

The Fourth Circuit affirmed the grant of summary judgment in Freeman’s favor.

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9Feb

Poor Job Performance Derails Age Discrimination Claim

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Empty-Milk-Bottles

By Ashley Escoe Sims

In Arthur v. Pet Dairy, an unpublished civil opinion released on February 9, 2015, the Fourth Circuit affirmed a district court’s order of summary judgment for the appellee, Pet Dairy, because the appellant, Ralph Arthur, failed to prove his employment was terminated because of his age.

Arthur Claims He was Terminated Due to His Age

Arthur was a milk delivery driver and salesman for Pet Dairy from January 2003 through December 2009, when he was terminated. He claimed that his supervisor, Mike Reynolds, fired him due to his age, which violates the Age Discrimination in Employment Act (“ADEA”). Arthur testified before the district court that Reynolds told him on more than one occasion that Arthur was too old to do his job. However, Pet Dairy alleged Arthur was fired due to his continued poor work performance, including traffic accidents and customer complaints. Reynolds, as well as Pet Dairy’s assistant manager confronted Arthur about his poor performance on several occasions and warned Arthur that he would be fired if he did not improve.

This district court granted summary judgment for Pet Dairy. It held that Arthur’s evidence did raise a genuine dispute as to whether he could establish a prima facie case of age discrimination nor prove his age was the but-for cause of his termination by direct or circumstantial evidence.

Establishing Age Discrimination

Under ADEA, it is “unlawful for an employer . . . to discharge any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). To prove age discrimination a plaintiff must prove that his age was the but-for cause of his termination. A plaintiff may accomplish this in one of two ways: by proving a “prima facie case,” which establishes a rebuttable presumption of discrimination, or by offering direct or circumstantial evidence of discrimination.

In Hill v. Lockheed Martin Logistics Mgmt., Inc., the Fourth Circuit laid out the four elements required to establish a prima facie case. The plaintiff must show (1) he was a member of the protected class, here, 40 years old or older; (2) he was performing his job duties to his employer’s legitimate expectations at the time of termination; (3) he was terminated; and (4) he was replaced by a younger person.

According to the Supreme Court opinion Gross v. FBL Financial Services, for a plaintiff to meet the burden of establishing a but-for cause by direct or circumstantial evidence, he must also present evidence that the employer did not have other legitimate motivations that were the reasons for the adverse employment action.

Arthur Was Not Able to Meet His Burden of Proof

Arthur was not able to establish a prima facie case because he was not able to prove the second element–that he satisfied his employer’s legitimate expectations at the time of his termination. Pet Dairy provided ample evidence that Arthur consistently failed to sufficiently perform his job duties. Most notably were the numerous customer complaints and that Pet Dairy’s largest customer refused delivery from Arthur because of his poor performance.

Additionally, while Arthur’s testimony of Reynolds’ comments concerning his age were evidence that age may have been a motivating factor for his termination, Arthur was not able to show it was the but-for cause. Pet Dairy had other, lawful reasons to terminate him. One reason was his poor job performance. Another reason was the business decision to increase the sales of other sales routes by eliminating Arthur’s route. Arthur acknowledged that he was reprimanded on numerous occasions because of his poor performance; he also admitted that Pet Dairy’s decision to eliminate his sales route was one reason he was fired.

District Court’s Ruling Affirmed

Because Arthur did not offer sufficient evidence for a reasonable jury to find that he met his employers legitimate expectations nor did he offer sufficient evidence for a reasonable jury to find that there was no other explainable basis for his termination other than age, the Fourth Circuit affirmed the district court’s order of summary judgment for Pet Dairy.

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9Feb

No Due Process Violation in Employment Termination Case

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By Dan Menken

Today, in Skinner v. Loudoun County, an unpublished opinion, the Fourth Circuit affirmed the district court’s order granting summary judgment to Loudon County on Skinner’s 42 U.S.C. § 1983 (2012) complaint. The complaint alleged federal and state due process claims as well as a related state claim of defamation.

Skinner Argues that Due Process Rights were Violated by Job Termination

Skinner’s claims arose from his termination from his position as an emergency medical services training officer with the Loudon County Department of Fire Rescue and Emergency Management. He was terminated for striking a student in the head.

As a public employee, Skinner had a constitutionally protected property interest in his continued employment and could not be fired without due process. Although Skinner did have an opportunity to present his side of the story, he argued that Defendants failed to provide him with the evidence used to support his termination, including names of eyewitnesses, names and details of corroborating witnesses, and corroborating documents. The Fourth Circuit noted, however, that “[d]ue process does not mandate that all evidence on a charge or even the documentary evidence be provided, only that such descriptive explanation be afforded as to permit [the employee] to identify the conduct giving rise to the dismissal and thereby to enable him to make a response.” Linton v. Frederick County. Here, Skinner was informed that he was charged, on a specific date, with harassing, hitting, and kicking the student. He was also told that there was another witness to the altercation. The Fourth Circuit held that Skinner understood the charges sufficiently to prepare a detailed response, and therefore there was no due process violation.

Skinner further argued that he was deprived of his right to confront the student under the Fifth and Fourteenth Amendment. The Court held that there is no absolute due process right to confront and cross-examine an accuser in this type of situation and instead used the balancing test laid out in Mathews v. Eldridge. The test looks at (1) the private interest affected; (2) the risk of an erroneous deprivation and the probable value of additional procedural safeguards; and (3) the Government’s interest. Here, Skinner was informed of the charges against him. He was able to testify on his behalf and call corroborating witnesses. The Court reasoned that the remaining procedural safeguards, the lack of any evidence of prejudice, and the fact that the student was deployed in Afghanistan, warranted a conclusion that Skinner was not unconstitutionally deprived of an opportunity to challenge his termination.

Defamation Claim Not Preserved

Finally, Skinner agued that his defamation claims were improperly dismissed for failure to produce evidence of malice. However, Skinner did not address the defamation claim in his response to the Defendants’ summary judgment motion. He objected, for the first time, in his motion for reconsideration. Thus, his arguments against dismissal were waived.

District Court Ruling Affirmed

Thus, the Fourth Circuit affirmed the district court’s ruling granting summary judgment in favor of the Defendants.

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13Jan

Public Policy Claim Against Wrongful Discharge Sufficient For Trial

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By Dan Menken

Last Thursday, January 8th, in Weidman v. Exxon Mobil Corp., the Fourth Circuit affirmed the district court’s denial of Plaintiff’s motion to remand and also affirmed the dismissal of all but one of his tort claims. Because the dismissal of one of Plaintiff’s claims was reversed, the Circuit Court remanded the case for further proceedings.

Plaintiff Stated Four Claims Based on Employer’s Conduct

In March 2013, Weidman filed suit against his former employer, ExxonMobil, and ten ExxonMobil employees. Plaintiff alleged that the Medical Department of ExxonMobil committed violations of the law by operating illegal pharmacies and illegally stockpiling large quantities of medication. He further alleged that after he reported the violations to ExxonMobil, an employee of the Medical Department initiated a campaign of retaliation against him. After reporting his colleague’s conduct, Plaintiff stated that ExxonMobil conducted a “sham” investigation concluding that Weidman had not been harassed and that the pharmacies were legal. During a second investigation, Plaintiff reported that one of the investigators admitted to him that ExxonMobil had been operating an illegal pharmacies for years.

Plaintiff then alleged that he was required to participate in a performance improvement plan, which lasted for over a year. Plaintiff contended that the purpose of the meetings was not to improve his performance, but to overburden him with the creation of new tasks meant to cause his failure to perform. He stated that during one of these performance meetings on October 24, 2012, he suffered a heart attack which was a direct result of the stress maliciously inflicted upon him. In mid-December 2012, ExxonMobil extended Plaintiff’s performance plan. ExxonMobil subsequently terminated Weidman’s employment at his next meeting in January 2013 for failing to cooperate with the plan.

Weidman then filed suit asserting four causes of action: (1) fraud based on Appellees alleged retaliation against him despite contrary assurance in the employee handbook and the CEO’s yearly videos; (2) intentional infliction of emotional distress; (3) personal injury based on damage to his heart; and (4) wrongful discharge. Defendant removed the case to the Eastern District of Virginia and moved to dismiss the case. Plaintiff moved to remand the case to state court. The district court dismissed all of Plaintiff’s claims and denied his motion to remand.

First Three Claims Fail to State a Claim

The district court denied Plaintiff’s motion to remand based on the “fraudulent joinder” doctrine, despite the fact that Weidman had named three non-diverse defendants in his complaint. The fraudulent joinder doctrine provides that diversity jurisdiction is not automatically defeated by naming non-diverse defendants. The district court may retain jurisdiction if the non-moving party shows that the plaintiff committed outright fraud in pleading jurisdictional facts, or that “there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court.” Mayes v. Rapoport, 198 F.3d 457, 464 (4th Cir. 1999). The Fourth Circuit agreed that Weidman’s claims against the non-diverse defendants had no possibility of succeeding, and thus affirmed the district court’s denial of Weidman’s motion to remand.

The Circuit Court then performed a de novo review of the district court’s dismissal for failure to state a claim. According to Bell Atl. Corp. v. Twombly, a complaint “must contain sufficient facts to state a claim that is plausible on its face.” The Fourth Circuit held that Weidman failed to sufficiently plead his fraud claim by making vague referrals to statements from ExxonMobil’s CEO and members of the Human Resources Department. Moreover, the facts stated in his claim for intentional infliction of emotional distress did not reach the level of “outrageous and intolerable” conduct, and was therefore properly dismissed. The claim for personal injury was also properly dismissed because it only stated a “naked assertion devoid of further factual enhancement,” and thus failed to meet the requirement laid out in Ashcroft v. Iqbal.

Plaintiff Sufficiently Stated Claim For Wrongful Discharge Based on Public Policy

Finally, in regards to Plaintiff’s wrongful discharge claim, Virginia law recognizes three situations in which a litigant may show her discharge violated public policy: (1) where an employer fired an employee for exercising a statutorily created right; (2) when the public policy is “explicitly expressed in the statute and the employee was clearly a member of that class of persons directly entitled to the protection enunciated by the public policy”; and (3) “where the discharge was based on the employee’s refusal to engage in a criminal act.”

Here, the Fourth Circuit reversed the district court’s ruling, stating that Weidman sufficiently stated a claim that he was fired for refusing to engage in a criminal act. Sections 54.1-3310 and 54.1-3435 of the Virginia Code make it unlawful for anyone to practice pharmacy or to engage in wholesale distribution of prescription drugs without a license. Although these sections are not part of Virginia’s criminal code, a violation of these sections lead to criminal penalties. Defendants argue that this claim cannot survive because Weidman failed to cite the statute in his complaint. The Fourth Circuit stated, however, that any deficiency in this regard is merely technical. Therefore, Plaintiff pled sufficient factual detail that he was fired for refusing to participate in “illegal pharmacy distribution activities.”

Case Remanded To Address Wrongful Discharge Claim

Thus, the Fourth Circuit reversed the dismissal of Weidman’s wrongful discharge claim against ExxonMobil and remanded the case for further proceedings.

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23Oct

Denial of Declaratory Judgment in Title VII Case Affirmed

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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.

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22Oct

City Waived Governmental Immunity in Contract with Police and Fire

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By: Andrew Kilpinen

Today in Davis v. City of Greensboro, the 4th Circuit found jurisdiction to hear an appeal, and ultimately affirmed a district court order rejecting the City of Greensboro’s governmental immunity defense in a breach of contract dispute over wage pay.

Current and retired Greensboro police officers and firefighters brought multiple suits against the City. At issue were changes to the City’s “longevity payment program,” a program through which the City provided annual lump-sum payments to police officers and firefighters based on the number of years they worked for the city. According to the complaint, the City began to reduce the amount paid and even converted some to discretionary bonuses. Additionally, these changes indirectly impacted the officer’s overtime pay-rate and contributions to their retirement funds.

As a general rule, a municipality in North Carolina waives governmental immunity when it enters into a valid contract. Thus, the central issue in this case was whether or not there existed a valid contract between the City and the police officers and firefighters.

The district court order denied the City’s motion to dismiss finding that the officer’s complaint “sufficiently alleged a contractual … obligation.” The City of Greensboro appealed.

As a preliminary matter, the Court ruled that the district court’s order rejecting the City’s governmental immunity defense was subject to interlocutory review under the collateral order doctrine, and therefore had jurisdiction to hear the City’s appeal.

On appeal, the City of Greensboro argued that:

  1. The officers were required, and failed, to allege the existence of pre-audit certificates.
  2. The officers were required, and failed, to allege that their contracts were written.

(1)

The statute only requires pre-audit certificates for contracts due the year they are formed.

N.C. Gen. Stat. §159-28 (a) provides that: “ [I]f a pre-audit certificate is necessary but lacking, there is no valid contract.” Therefore, the City argued, since the officers did not allege any pre-audit certificate in their complaint, any claim based on that contract must fail. The Court rejected this argument citing the North Carolina Court of Appeals decision in Myers v. Town of Plymouth: §159-28 (a) only applies to a “financial obligation that will come due in the year the town incurs the obligation.”

Here, the alleged contractual rights were formed years ago, and the financial obligations were due more than a year later. Therefore 159-28 (a) does not apply and the officers did not need to plead the existence of any pre-audit certificates.

 (2)

The facts alleged in the complaint are sufficient to satisfy the Greensboro Charter’s writing requirement.

Turning to the Greensboro Charter, which provides that “[a]ll contracts, except as otherwise provided for in this Charter, shall be … reduced to writing in order to be binding upon the City,” the City argued that the officer’s claims must fail because they were not reduced to writing. The Court was unimpressed.

The City cited no authority for the proposition that a plaintiff must allege that a contract be written in order to state a claim for breach of contract. Regardless, the Court pointed out that the facts contained in the complaint would have been sufficient to survive a motion to dismiss. When construed in the light most favorable to the officers, the facts alleged in the officer’s complaint satisfied the Charter’s writing requirement because their Employee Handbook listed longevity pay as a “benefit.”

In conclusion, the Court affirmed the circuit court’s order finding sufficient facts of a valid contract between the City and the officers. Thus, the City’s governmental immunity defense failed and the officer’s claims could proceed.

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16Oct

Fourth Circuit Rejects CIA Discrimination Suit

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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.”

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