Wake Forest Law Review
18Sep

Fourth Circuit Examines Duty to Inspect and Proximate Cause in FRSA Case

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By Kayleigh Butterfield

On April 30, 2015, the Fourth Circuit issued a published opinion in the civil case Harris v. Norfolk Southern Railway Co. Norfolk Southern Railway Company (“Norfolk Southern”) appealed the district court’s grant of summary judgment against it on the issue of liability in a negligence action brought by Charles Harris, who sought compensation for injuries suffered from a train derailment. Harris cross-appealed the district court’s summary judgment grant against him on a claim for punitive damages. The Fourth Circuit reversed the grant of summary judgment on the issue of liability, affirmed the grant against punitive damages, and remanded the case for further proceedings.

Factual Background

On July 21, 2009, Harris was working at a coal-loading facility (“loadout”) in Mingo County, West Virginia. Norfolk Southern employees backed an empty train of freight rail cars over an area of the railroad track running underneath the loadout where Harris was working. Both the train and track were owned and operated by Norfolk Southern. A section of the rail about 35 feet from the loadout was heavily corroded between the ball and vertical part of the rail. When the rail cars passed over the damaged portion of the track, a part of the rail separated and the cars derailed. When one of the cars crashed into the loadout’s support beams, the loadout collapsed and Harris subsequently suffered severe physical and mental injuries. The evidence showed that most of the track damage occurred months or years prior to the derailment.

Standard of Review

Summary judgment is reviewed de novo, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Summary judgment is appropriate so long as the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Federal Rail Safety Act and Track Safety Standards

Under the Federal Rail Safety Act (“FRSA”), 49 U.S.C. § 20101, et seq. Norfolk Southern has a duty to inspect the rail in accordance with the comprehensive track safety standards (“TSS”) as set forth by the Secretary of Transportation. 49 C.F.R. Part 213. The TSS sets forth minimum requirements for how inspections must be conducted and how issues should be remedied.

Norfolk Southern Breached Its Duty to Inspect

Section 213.5 of the TSS states that a track owner “who knows or has notice that the track does not comply with the requirements of this part” is responsible for remedying the problem in accordance with the TSS. The Fourth Circuit examined the plain language of the Federal Railroad Administration’s (“FRA”) commentary to the 1998 TSS amendments, and found that their reading of the phrase “knows or has notice” was reasonably interpreted to include constructive notice.

The Fourth Circuit then determined the scope of Norfolk Southern’s duty to inspect the track. While the court rejected Harris’ contention that a visual inspection requires someone to look at every part of the track structure, the court concluded that a reasonable visual inspection must be made in light of the surrounding circumstances. In this case, evidence was brought showing that Norfolk Southern knew that the obstruction of coal and debris on the tracks could cause corrosion. Despite this knowledge, Norfolk Southern failed to examine any of the embedded portion of the track over a period of months and years. Thus, the Fourth Circuit determined that any reasonable jury would find that Norfolk Southern breached its duty to inspect.

Genuine Dispute as to Proximate Cause

The Fourth Circuit concluded that a genuine dispute of material fact existed as to proximate cause. Expert testimony revealed that corrosion could have been detected through ultrasonic testing or digging out coal debris from the damaged parts of the track. However, the court noted that the testimony did not provide that the damage was consistent along the track or that it would necessarily be discovered by digging out sample areas of coal debris. Because a jury could reasonably find that Norfolk Southern’s breach was not the proximate cause of Harris’s injuries, the Fourth Circuit reversed summary judgment on the issue of liability.

Harris Did Not Meet Standard for Punitive Damages

The Fourth Circuit did not find that Norfolk Southern’s conduct met the standard of severe negligence required for an award of punitive damages. The court noted that Norfolk Southern conducted ultrasonic rail testing and visual inspections on a regular basis. While the defect remained undiscovered, the court held that Norfolk Southern’s actions simply did not rise to the near-reckless level of negligence needed to award punitive damages.

Conclusion

For the above reasons, the Fourth Circuit reversed the grant of summary judgment on the issue of Norfolk Southern’s liability, affirmed the grant of summary judgment on Harris’s claim for punitive damages, and remanded to the district court for further proceedings.

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16Sep

Fourth Circuit Affirms Summary Judgment on the Basis of Qualified Immunity

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By Malorie Letcavage

Overview

In a published opinion of a civil case issued on April 28, 2015, the Fourth Circuit affirmed the lower court’s decision to grant summary judgment on the basis of qualified immunity in the case of Raub v. Campbell. The appellant, Brandon Raub, argued that his Fourth Amendment right to be free from unreasonable seizures, and his First Amendment right to free speech were violated by the appellee, Michael Campbell. Raub also sought injunctive relief even if his constitutional claims failed. In reviewing the district court’s grant of summary judgment, the Fourth Circuit used a de novo standard. The Fourth Circuit upheld the district court’s grant of summary judgment on the basis of qualified immunity because it found that Raub’s Fourth Amendment rights were not violated, he had not pled sufficient facts for a First Amendment claim and there was no abuse of discretion in the district court’s dismissal of his injunctive claim for relief.

Factual Background

In the summer of 2012, two Marine veterans that had served with Brandon Raub contacted the FBI about Raub’s Facebook posts. Raub posted threatening messages and employed extremist language in numerous posts. The FBI and local law enforcement visited Raub to question him about his Facebook activity. The agents reported that Raub’s behavior was unusual because during the interview he was preoccupied, could not maintain eye contact and displayed extreme mood swings.

The agents contacted Michael Campbell, a certified mental health “prescreener” affiliated with the local emergency services. Campbell recommended Raub be detained for evaluation, at which point the officers took Raub to the local jail. Campbell interviewed Raub and noted the same behavior the officers had described; Raub was distracted, and had trouble answering questions. Campbell concluded Raub might be paranoid and delusional.

Campbell petitioned and was granted a temporary detention from the magistrate because Raub was displaying signs of psychosis. Four days into the temporary detention, the court ordered that Raub be admitted to the hospital for thirty days. However, a few days later Raub was released because the court found that the petition had insufficient factual allegations. Raub then filed suit under 42 U.S.C. §1983 against Campbell. The district court granted Campbell’s motion for summary judgment due to qualified immunity and denied Raub’s request for injunctive relief.

42 U.S.C. 1983

This statute provides an avenue to pursue a civil action for a deprivation of constitutional rights. It lays out that any person acting under the color of state law (which, as in this case, can include a mental health professional associated with emergency services) who subjects anyone to a “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” will be liable to the party injured.

Appellant’s Fourth Amendment Rights Were Not Violated

The court explained that qualified immunity analysis has two prongs: 1. Whether the plaintiff has established the violation of a constitutional right and 2. Whether that right was clearly established at the time of the alleged violation.

The court decided to start its evaluation with the second prong and held that Campbell’s conduct was not proscribed by clearly established law. The court noted that a seizure requires probable cause but there is a lack of clarity in the law concerning seizures for psychological evaluations. The court then went on to cite the major cases in the Fourth Circuit which all held that that seizures for psychological evaluation were upheld when the person was a threat to himself or others. The court held that due to the totality of the factors, including the content of Raub’s Facebook posts, the initial observations by the officers and Campbell’s observations of Raub, Campbell did not violate Raub’s Fourth Amendment rights because his petition to detain was reasonable based on existing precedent.

Appellant Failed to Allege Sufficient Facts for a First Amendment Claim

            Though Raub contended that Campbell only recommended detention based on Raub’s “unorthodox political statements,” the court found that Campbell had numerous other reasons for recommending detention. The court cited the content of the Facebook posts, Raub’s behavior during the interview, and the increasingly threatening nature of his posts. Even if the political statements were part of the decision, the court found Campbell had plenty of other reasons for Raub to be detained. Thus the court held that Raub did not sufficiently allege facts for a First Amendment violation and Campbell was entitled to qualified immunity.

Appellant’s Claim for Injunctive Relief Was Properly Rejected 

            The court reviewed the denial of injunctive relief for abuse of discretion, and it found none. Under §1983 when a plaintiff is seeking injunctive relief, he needs to demonstrate a real or immediate threat that he will be wronged again in a similar way. However, Raub only alleged that his political beliefs would subject him to seizures and retaliation in the future. The court found that this claim was too speculative and did not reach the level needed to grant equitable relief.

Conclusion

The court did not find that Raub’s Fourth Amendment rights were violated nor did it find that he had alleged sufficient facts for a First Amendment claim. It also found no abuse of discretion in the dismissal of the claim for injunctive relief. Therefore, the court affirmed the lower court’s grant of summary judgment.

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9Jul

Fourth Circuit Reverses District Court’s Dismissal of Free Exercise Claims

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By Cate Berenato

Da Bishop

On July 9, 2015, in the civil, published case Jehovah v. Clarke, the Fourth Circuit reversed the Eastern District of Virginia’s dismissal of inmate Jesus Emmanuel Jehovah’s free exercise and deliberate indifference claims against the Virginia Department of Corrections (“VDOC”).

First Amendment, RLUIPA, and Eighth Amendment Claims 

The issue in this case was whether VDOC violated the First Amendment and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) when it a) prohibited Mr. Jehovah from drinking wine during communion; b) required him to work on Sabbath days; and c) assigned him non-Christian cellmates. An additional issue is whether, under the Eighth Amendment, VDOC was deliberately indifferent to Mr. Jehovah’s medical needs.

Mr. Jehovah’s Experience with VDOC

Mr. Jehovah’s religion required him to take communion by drinking wine and consuming bread dipped in honey, olive oil, sugar, cinnamon, and water. While at Nottoway Correction Center (“NCC”), Mr. Jehovah was not allowed to take communion. When he was transferred to Sussex I Prison (“SIP”), Mr. Jehovah filed grievances, which went unanswered, and VDOC issued a policy prohibiting wine consumption during communion.

Mr. Jehovah’s religion also did not allow him to work from Friday at sundown until Sunday at sundown, but VDOC required inmates to work a certain number of hours per week to attain good conduct allowances and sentence credits. VDOC refused to accommodate Mr. Jehovah after he was assigned to work seven days a week. VDOC also did not approve Mr. Jehovah for jobs that would accommodate his beliefs, despite previously approving him for such jobs.

Additionally, though Mr. Jehovah’s religion did not allow him to be housed with non-Christians, several of his cellmates were not Christian and VDOC did not respond to his requests to be reassigned. Finally, Mr. Jehovah displayed various symptoms of medical illnesses, but doctors associated with VDOC failed to provide care for many of the symptoms and improperly treated others.

Procedural Posture

The District Court dismissed Mr. Jehovah’s Sabbath, cell assignment, and deliberate indifference claims. It granted summary judgment in favor of VDOC on Mr. Jehovah’s communion claims.

The District Court Should Not Have Dismissed Mr. Jehovah’s Claims or Granted Summary Judgment in Favor of VDOC

The Fourth Circuit reviewed the district court’s dismissals and grant of summary judgment de novo. Dismissal is proper only if Mr. Jehovah did not allege facts that state a claim for which relief can be granted. In assessing the grant of summary judgment, the Fourth Circuit looked at the facts and inferences in the light most favorable to Mr. Jehovah. Summary judgment is only proper if a reasonable jury could not have returned a verdict in Mr. Jehovah’s favor.

The First Amendment protects the free exercise of religion. If a prison regulation impinges an inmate’s First Amendment right, the regulation is valid if it is reasonably related to a legitimate interest of the prison. The Fourth Circuit considered a four-pronged test to determine the validity of the prison policies: a) “is there a valid, rational connection between the prison regulation and the legitimate government interest put forward to justify it?”; b) “are there alternative means of exercising the right that remain open to prison inmates?”; c) “what is the impact accommodation of the asserted constitutional right will have” on the prison?; d) Do there exist obvious, easy alternatives, to suggesting that the regulation is an exaggerated response to prison concerns?” The prisoner must prove the regulations invalid.

RLUIPA “prohibits any government entity from imposing a substantial burden on an inmate’s religious exercise unless the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest.” While an inmate proves a substantial burden on religious exercise, the government must “establish that the burden is the least restrictive way to further a compelling governmental interest.”

The district court’s grant of summary judgment regarding the wine ban was improper because Mr. Jehovah did not have an opportunity to brief whether the wine ban substantially burdened his exercise of religion. Additionally, the wine ban was not the least restrictive means to address the government’s interest in security. The Fourth Circuit found that an interest in restricting inmate wine consumption was valid, but the wine consumption ban could have provided alternatives like dipping bread into wine during communion. The Fourth Circuit stated that the prison population would not have been endangered by one inmate consuming a small amount of wine, and VDOC did not offer any alternatives or accommodations for Mr. Jehovah. Thus, the Fourth Circuit reversed the district court’s grant of summary judgment.

The district court’s dismissal of Mr. Jehovah’s Sabbath claims was improper. VDOC’s refusal accommodate Mr. Jehovah’s Sabbath observances by allowing him to transfer jobs may have violated RLUIPA because it burdened his ability to freely exercise his religion. VDOC may have violated the First Amendment because its refusal to accommodate was not rationally related to any prison interest that the court could discern.

Mr. Jehovah’s religious practices were chilled Under RLUIPA when VDOC placed him with a cellmate who subjected him to “anti-Christian” rhetoric. VDOC’s refusal to assign Mr. Jehovah to a different cellmate was again not related to a legitimate interest of the prison’s that the Fourth Circuit could detect. In fact, the placements with non-Christians may have been deliberate on the part of VDOC.

Finally, the District Court should not have dismissed Mr. Jehovah’s deliberate indifference claims under the Eighth Amendment. To establish deliberate indifference, an inmate must prove: a) an objectively serious deprivation of a basic human need, and b) a subjectively culpable state of mind on behalf of the officials. Here, VDOC did not claim that Mr. Jehovah’s alleged symptoms were not serious health issues. Additionally, Mr. Jehovah’s doctors only treated some of his ailments, often improperly, and ignored others. Thus, the district court should not have dismissed Mr. Jehovah’s Eighth Amendment claim.

Disposition

The Fourth Circuit reversed the district court’s dismissals of Mr. Jehovah’s claims and reversed its grant of summary judgment in favor of VDOC.

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20Mar

The Fourth Circuit Adds a Knowledge Element to Arranger Liability Under CERCLA

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By David Darr

Today, in the civil case of Consolidated Coal Co. v. Georgia Power Co., a published opinion, the Fourth Circuit established that a seller of items containing hazardous materials is not liable for contribution of the cleanup of those materials under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) if its subjective intent was to sell those items as opposed to disposing of the hazardous materials. Because the Eastern District of North Carolina did not err in deciding that Georgia Power did not arrange its transformers for disposal under CERCLA, and that there were no genuine issues of material fact, the Fourth Circuit affirmed the order of the District Court granting summary judgment in favor of the Georgia Power.

Appellants Contended that Georgia Power’s Intent Was to Arrange for the Disposal of Hazardous Materials

The appellants argued that the District Court erred in granting summary judgment in favor of Georgia Power because Georgia Power had the dual intent of gaining revenue and disposing of toxic waste when they sold electrical transformers, arguing that this dual intent creates the intent necessary for arranger liability under CERCLA.

History of Georgia Power’s Sale of Transformers to Ward and the Proceedings Below

Georgia Power, appellee, sold its used electrical transformers in the early 1980’s via auctions. These electrical transformers contained polychlorinated biphenyls (“PCBs”), which are known carcinogens and have been banned since 1979. CERCLA governs the liability of parties who are disposing of PCBs. Before selling used transformers at auction, Georgia Power would inspect the oil inside the transformers for the PCB content to determine if the Toxic Substance Control Act of 1976 (“TSCA”) prevented it from selling the transformers for reuse. If the oil contained over 50 ppm, then the transformers could not be sold for reuse. For the transformers that Georgia Power sold at auction, it usually removed all of the PCB-containing oil, except for a thin coating of oil inside the transformer to prevent moisture damage that could make the transformers unfit for reuse. However, sometimes Georgia Power left the oil inside of the transformer when it was sold or left the caps off the transformers, exposing them to potential moisture damage. Georgia Power referred to this auction process as “scrapping” the transformers, but made in clear that scrapped transformers are “actually sold.”

Ward Transformer Company (“Ward”) purchased 101 used Georgia Power transformers that needed repair from 1983 to 1984. Ward ran a business reconditioning damaged or used transformers and reselling them. Ward stored and repaired the transformers it purchased to customer specifications at its facility in Raleigh (“Ward Site”). Ward made a profit off of these sales. Ward Site is now on the Environmental Protection Agency’s (“EPA’s”) National Priorities List due to PCB contamination from the oil in Ward’s transformers, and in 2004, the EPA ordered a removal action, which resulted in the removal of over 400,000 tons of contaminated soil. Consolidated Coal Company (“Consol”), PCS Phosphate Company (“PCS”), and Duke Energy Progress (“Duke”), appellants, have been required to bear the brunt of the removal costs, costing Consol and PCS more than $17 million.

In 2008 and 2009, Consol and Duke filed complaints against from Georgia Power, PCS, and other defendants in the Eastern District of North Carolina for contribution costs under CERCLA. The district court consolidated these actions. PCS counterclaimed against Consol and Duke, and cross-claimed for CERCLA contribution against the other defendants, including Georgia Power. Consol, PCS, and Duke all claimed that Georgia Power “arranged for disposal” of PCBs and thus it was liable for contribution under CERCLA at 42 U.S.C. § 9607(a)(3). The parties agreed to use the actions against Georgia Power as a test case and stayed the actions against all the other defendants. Georgia Power moved for summary judgment, and the District Court granted the motion. The court found that there was not intent to create arranger liability under CERCLA because the transformers were still useful when sold, as evidenced by Ward’s ability to make money out of reselling them. PCS and Consol appealed.

CERCLA and Arranger Liability

CERCLA allows for contribution liability when an entity arranges hazardous materials, one of which is PCB, for disposal. The question of whether a seller arranges hazardous material for disposal is a question to be decided on a case-by-case basis. In the absence of direct evidence of the intent to sell hazardous materials for disposal, the Fourth Circuit uses a four factor test formed in Pneumo Abex Corp. v. High Point, Thomasville & Denton Railroad Co. that weighs (1) whether the intent of the buyer was to reuse the hazardous materials or to dispose of the hazardous materials before reuse; (2) the value that the hazardous materials sold for; (3) the usefulness of the hazardous materials in the condition they were sold in; and (4) whether the hazardous materials were leaking or loose at the time of transferral. The Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. United States also caused to court to add another element to this test requiring that the seller has to have something more than mere knowledge that some disposal may occur as a collateral consequence of the sale. This “something more” includes intentional steps to dispose of the hazardous material beyond what is inherent to the sale, and it is a fact-intensive inquiry. Because this is an appeal from a summary judgment, the standard of review is de novo, and there has be a genuine issue of material fact that could cause a reasonable finder of fact to decide for the nonmoving party.

Georgia Power Did Not Have Arranger Liability Under CERCLA

The Fourth Circuit first decided that there was no direct evidence that Georgia Power intended the sale of its transformers to be a disposal of PCBs under CERCLA. The court dismissed the appellants’ argument that Georgia Power’s references to auctioning transformers as “scrapping” them meant that Georgia Power intended to dispose of the transformers. The court noted that Georgia Power specified in one document that “scrapping” meant “actually sold.” The court also dismissed the appellants’ argument that Georgia Power testing the concentration of PCBs in the transformers before sale was direct evidence that the sale was intended to dispose of PCBs. The Fourth Circuit saw this as merely complying with the TSCA and having nothing to do with disposing of PCBs via sale.

Deciding that there was no direct evidence of intent to sell the transformers for disposal of PCBs, the Fourth Circuit turned to circumstantial evidence and its Pneumo Abex four-factor test, as modified by Burlington. The court found that the first Pneumo Abex factor (reuse of the hazardous material versus the hazardous material being necessary to dispose of before reuse) weighed against the appellants. The appellants claimed this factor weighed in their favor because the transformer shells were what Ward wanted, not the oil containing PCBs contained within the shells. The court did not buy this argument because there was no evidence that showed that Ward ever intended to separate the oil from the transformers, and that separation of the oil from the transformers was likely impracticable. The court also noted that Ward resold entire transformers, not merely scrapping them, and that there was no evidence that showed that Georgia Power thought that Ward would do anything other than reuse the entire transformers after it bought them.

The Fourth Circuit also found that the second Pneumo Abex factor, considering the value of the materials sold, weighed against the appellants. The appellants argued that Ward sold the transformers in spite of the PCBs, not because of them. However, the court found that Ward was able to sell the transformers at a profit as particularly important to this factor. Additionally, the court reasoned that without the oil the transformers would have lost value because they could be damaged by moisture.

The Fourth Circuit also found that the third Pneumo Abex factor, concerning the usefulness of the materials as sold, weighed against the appellants. The appellants argued that the PCB content in the transformers was not useful and was undesirable. The court did not buy this argument because the transformers continued to be used after Ward reconditioned them and there was nothing in the record that showed that their use was affected negatively by PCBs.

The Fourth Circuit also found the fourth Pneumo Abex factor, concerning whether hazardous materials were leaking at the time of the transaction, to weigh against the appellants. The appellants argued that, while the transformers were not leaking when transferred, they were equivalent to a leaking transformer because of Ward’s intended use. The court disagreed and required actual leaking for this factor.

Finally, due to Burlington, the court added an additional element, which required something more than knowledge that some disposal would occur as a result of the transaction, to its test. The court also found this element to weigh against the appellants. The appellants argued that Georgia power knew that Ward could spill PCBs while rebuilding the transformers. The court did not buy this argument because there was no evidence that showed that Georgia Power would think that Ward would spill the oil in the process of reconditioning the transformers, and there was no evidence of something more than knowledge either. Due to all these factors weighing in Georgia Power’s favor, the Fourth Circuit found that there was no circumstantial evidence pointing to Georgia Power’s intent to dispose of PCBs, as opposed to selling of its used transformers. Therefore, the Fourth Circuit ruled that Georgia Power did not have arranger liability under CERCLA.

Fourth Circuit Affirmed Summary Judgment in Favor of Georgia Power

The Fourth Circuit affirmed, holding that there was no genuine issue of material fact that could cause a reasonable finder of fact to determine that Georgia Power had arranger liability under CERCLA.

Dissent Argued that Intent Was an Issue for a Trier of Fact

Judge Wynn dissented, arguing that the case should have been sent back to the District Court to determine what Georgia Power’s intent was when it the sold the transformers. Judge Wynn thought that CERCLA should have been given a broad interpretation because it was a remedial statute. The definition of “arrange” in CERCLA should therefore be looked at broadly. He also distinguished the Supreme Court’s decision in Burlington from this case because Burlington was the result of a lengthy trial not a summary judgment. Judge Wynn then looked at United States v. Cello-Foil Products, Inc., which the Supreme Court used to reach their decision in Burlington. Cello-Foil overturned an arranger liability decision because the district court used summary judgment, as opposed to a trial, to decide intent. Judge Wynn then cited Fourth Circuit precedent saying that intent is an issue that is typically left up to the trier of fact. Judge Wynn disagreed with the majority that no reasonable finder of fact could infer that Georgia Power intended to dispose of PCB-containing oil when it sold its transformers to Ward. Therefore, viewing the facts in the light most favorable to the appellant, Judge Wynn would have reversed and sent this case back to the district court for trial.

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16Mar

Fourth Circuit Holds that Second Termination Did Not Violate Arbitration Award

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By Ashley Escoe

In Fraternal Order of Police v. WMATA, a published civil opinion released on March 10, 2015, the Fourth Circuit reversed a district court’s order of summary judgment for the appellee, the Fraternal Order of Police (FOP), holding that the appellant, the Washington Metropolitan Area Transit Authority (WMATA), complied with the arbitration award.

Officers Allege That Termination Violates Arbitration Award

This labor dispute arose when the WMATA fired two of its police officers for a second time, after an arbitration award required WMATA to rehire them. WMATA fired Mark Spencer and Sherman Benton initially for making untruthful statements during investigations into their alleged improper conduct. The FOP, the bargaining agent for officers, filed grievances for the two officers culminating in arbitration. The Board of Arbitration determined that a lengthy suspension was more appropriate than termination and ordered WMATA to rehire the officers.

When the two officers were fired, they lost their Maryland certification to work as police officers. Once reinstated, they had to apply for recertification with the Maryland Commission before resuming their police duties. The Maryland Commission denied the officers recertification. Because the two officers were not recertified, WMATA fired them a second time. The FOP filed this action in federal court, contending that WMATA violated the decision of the Arbitration Board. The district court held that WMATA failed to comply with the arbitration order and instructed WMATA to rehire Benton and Spencer.

Fourth Circuit Follows Seventh and Third Circuits

The decision in this case turns on whether firing the two officers the second time, when they were denied recertification, constitutes a violation of the arbitration order. There is no Fourth Circuit authority that addresses this issue directly. Therefore, the Court looked to the Seventh and Third Circuits, which had decided cases with similar facts. The Seventh Circuit in Chrysler Motors Corp. v. International Union, Allied Industrial Workers and the Third Circuit in United Food & Commercial Workers Union Local 1776 v. Excel Corp. held that an employee cannot challenge a second termination by seeking to enforce an arbitration award where an employee was terminated, ordered to be reinstated after arbitration, then fired again for independent reasons.

Second Termination was Based on Independent Grounds

The Fourth Circuit Found that that WMATA fired the officers the second time on independent grounds not related to the first termination. The reasons for the second termination, that the Maryland Commission denied recertification, was distinct from firing the officers for disciplinary infractions and was also never before the Arbitration Board.

The Court noted that WMATA provided the Maryland Commission with derogatory information seeking to discourage the officers’ recertification. While the Court does not condone that behavior, it concluded that it did not have jurisdiction to consider if WMATA’s actions violated the “just cause” provision of the collective bargaining agreement between the officers and WMATA. That issue, according to the agreement, must be settled by arbitration.

Summary Judgment Reversed

The Fourth Circuit held that the WMATA’s choice to fire the two officers after their recertification was denied, did not violate the arbitration award, reversing the district court’s order of summary judgment for the FOP.

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4Mar

Fourth Circuit Doesn’t Buy Retail Tenant’s Argument, Affirms Decision Allowing Mall Redevelopment to Move Forward

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By Patrick Southern

Today, in a published opinion in the civil case of Lord & Taylor, LLC v. White Flint, L.P.,  the Fourth Circuit affirmed a ruling from the District of Maryland which refused to stop plans for redevelopment of a now-vacant shopping mall. It did so over the objections of the plaintiff, Lord & Taylor, which had argued the plans were barred by an existing Reciprocal Easement Agreement (“REA”) between the parties.

The Parties Had a Long-Standing Relationship

In 1975, White Flint began discussions with Lord & Taylor about developing a store at a new mall in Maryland. The parties ultimately agreed Lord & Taylor would serve as an anchor tenant in a building detached from the mall itself.

As part of their agreement, they entered into the REA, which bound White Flint to operating a three-story mall on the site. Any changes to the mall were to be approved by Lord & Taylor. The REA was to remain operative until at least 2042, and Lord & Taylor had an option to extend it until 2057 by exercising its final option to renew its lease.

The relationship was initially positive, but business at the mall steadily declined. By 2013, 75 percent of the mall’s tenants had left, and the mall was ultimately shuttered permanently early in 2015.

In October 2012, the local county government approved plans to tear down the mall and redevelop the site into a mixed-use development with apartments, parks, a hotel, and high-rise office buildings. The Lord & Taylor store was to remain in place.

Lord & Taylor Sought Declaratory Judgment and Injunctive Relief

Lord & Taylor filed an action to stop White Flint from going forward with the redevelopment plan, saying the REA promised Lord & Taylor’s store would have a “first class high fashion shopping center” adjacent to it for the duration of its lease. It said the new plans violated the terms of the REA and would negatively affect the store’s business.

Lord & Taylor sought declaratory judgment that the REA barred the plans and a permanent injunction that would prohibit White Flint from replacing the mall with the proposed “town center” development.

White Flint moved for partial summary judgment, arguing it would be infeasible for the courts to enforce an injunction requiring what was, by then, a mostly empty mall to resume operations and then to maintain status as a “first class high fashion shopping center” until 2057. White Flint further argued that halting the redevelopment project was against the public interest given the time and expense already devoted to the project.

The District Court granted White Flint’s motion, concluding an injunction would be unworkable in light of the advanced stage of the project.

Lord & Taylor Appealed On Two Grounds

On appeal to the Fourth Circuit, Lord & Taylor argued two separate issues: (1) that the district court erred by failing to apply the correct Maryland law to its request for injunctive relief, and (2) that the district court erred in judging the injunctive relief it sought would not be feasible.

The Fourth Circuit rejected both arguments, adopting similar reasoning to that of the District of Maryland in choosing to affirm the lower court’s decision.

The District Court Applied the Proper Legal Standards in Rendering Judgment

Lord & Taylor argued a proper application of Maryland law would necessarily mean an injunction should be granted. It indicated Maryland law strongly favors injunctive relief for breaches of restrictive covenants, to the point that other factors such as the public interest or the availability of monetary damages to compensate for a breach aren’t to be considered.

But the Fourth Circuit disagreed. It noted that even the cases cited by Lord & Taylor said that injunctive relief is subject to “sound judicial discretion.” Further, Maryland law makes clear that trial courts may take account of feasibility concerns, such as those cited by the District Court in this case, in considering injunctive relief for breach of a restrictive covenant.

The Fourth Circuit indicated Maryland courts have made clear that injunctions may be denied if they would cause courts to have to engage in “long-continued supervision” or “enforcement of the injunction would be ‘unreasonably difficult.'” Thus, it rejected Lord & Taylor’s argument.

The District Court Correctly Ruled Injunctive Relief Was Infeasible

Lord & Taylor further argued that the District Court incorrectly ruled that injunctive relief in this case would be infeasible. The Fourth Circuit reviewed that decision under an abuse of discretion standard and affirmed the lower court ruling. In making its decision, the Fourth Circuit noted that the practical realities of the situation didn’t weigh in favor of an injunction.

Much of the mall was vacant, so enforcing the REA would have necessitated an affirmative injunction ordering White Flint to transform the mall back into a “first class high fashion shopping center.” Such an order is difficult to draft with specificity, and also difficult to enforce. The court would be left to enforce detailed provisions involving parking and interior access roads, potentially for a protracted period of time, and such enforcement is beyond the level of judicial involvement that is practical.

While Lord & Taylor had indicated a “negative injunction” (which would merely bar the redevelopment plans from going forward) would be acceptable, the Fourth Circuit said that, too, was unrealistic. Such an injunction would freeze in place a vacant mall, and would essentially be a judicially-mandated blight on the area. The court was not prepared to take such a step, doing so would be against the public interest.

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2Mar

Child’s Statement Secures Qualified Immunity for Police Officer

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By Marcus Fields

Today, in Pleasants v. Rigsby, an unpublished decision, the Fourth Circuit affirmed the District Court for the Western District of Virginia’s grant of summary judgment in favor or Officer Robert Rigsby and the Town of Louisa on Sloan Pleasants’ claim that Rigsby falsely arrested her.

Officer Rigsby’s Arrest of Sloan Pleasants

On December 13, 2009, at the request of Sloan Pleasants’ ex-husband Kevin, Officer Rigsby went to the house of Sloan Pleasants in order to perform a “welfare check” on Kevin’s eleven-year-old daughter. During the visit the child was visibly frightened and Sloan Pleasants initially refused to let the child speak with either Kevin or Officer Rigsby. Upon questioning, the child told Officer Rigsby that Sloan had slapped her on her thigh and pulled her by her wrists. Officer Rigsby could see no visible marks or bruises. Officer Rigsby then proceeded to arrest Sloan Pleasants for assault and battery against a family member, a charge that was later dropped.

Pleasants’ Claims on Appeal

Pursuant to 42 U.S.C. § 1983, Pleasants originally claimed unlawful entry, false arrest, malicious prosecution, and failure to train on the part of the Town of Louisa, as well as other related state law claims. These claims were dismissed by the district court, and all but one of these dismissals were affirmed by the Fourth Circuit in an earlier appeal. The false arrest claim was remanded to the District Court for further proceedings. After further developing the factual record the District Court granted summary judgment for Officer Rigsby after finding that he was entitled to qualified immunity. Pleasants appealed, claiming the District Court erroneously based this finding on “disputed facts and inferences drawn in favor of Officer Rigsby.”

Officer Rigsby Entitled to Qualified Immunity

The Fourth Circuit, reviewing the district court’s grant of summary judgment de novo, determined that the district court was correct in granting Rigsby qualified immunity. Government officials are protected by the doctrine of qualified immunity “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” In order to find that qualified immunity is not present, a court must conclude that “a constitutional violation occurred and … the right violated was clearly established.” Both the district court and the Fourth Circuit focused analysis on the second prong. The Fourth Circuit ultimately concluded that based on the frightened state of the eleven-year-old girl, the girl’s statements to Officer Rigsby, and Sloan Pleasants’ demeanor towards Officer Rigsby, “a reasonable officer could have believed that Officer Rigsby’s arrest of Pleasants was lawful.”

Grant of Summary Judgment Affirmed

For the above reasons, the Fourth Circuit affirmed the grant of summary judgment to Officer Rigsby on the false-arrest claim.

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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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6Nov

Summary Judgment on Business Conspiracy and Breach of Contract Claims Affirmed

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By Evelyn Norton

Did the District Court Err in Granting Summary Judgment in Defendants’ Favor?

Today, in Rogers v. Deane, the Fourth Circuit affirmed the decision of the District Court for the Eastern District of Virginia granting summary judgment in the Defendant’s favor.  Plaintiff-Appellant Edwina Rogers argued that the district court erred in granting summary judgment to Defendants Jon Deane and Gaffey Deane Talley, PLLC on Rogers’ claims for breach of contract and statutory business conspiracy.  Further, Rogers’ alleged that the district court should have granted her request for the opportunity to conduct discovery before granting summary judgment to Defendants.

  1. The District Court Did Not Err in Granting Summary Judgment to Defendants on Rogers’ Claim for Breach of Contract.

In reviewing the evidence in the record, the Fourth Circuit concluded that the district court properly granted summary judgment to Defendants on the claim for breach of contract.  The evidence clearly showed Rogers’ alleged damages were not caused by Defendant’s breach of contract.

  1. The District Court Did Not Err in Granting Summary Judgment to Defendants on Rogers’ Claim for Statutory Business Conspiracy.

The Fourth Circuit also concluded that the district court properly granted summary judgment in Defendants’ favor on the statutory business conspiracy claim.  To prevail on a business conspiracy claim under Va. Code Ann. §§ 18.2-499 and 18.2-500, a plaintiff must establish by clear and convincing evidence that a defendant acted with legal malice.  However, the Fourth Circuit found no evidence in the record that Defendants acted with legal malice toward Rogers’ business.  Thus, summary judgment in Defendants’ favor was proper.

  1. The District Court Did Not Err in Granting Summary Judgment to Defendants Without Granting Rogers’ Request for Discovery.

Finally, the Fourth Circuit concluded that granting summary judgment without allowing discovery was proper.  Under Rule 56(d) of the Federal Rules of Civil Procedure, summary judgment should be refused if the nonmovant has not had the opportunity to discover information essential to the nonmovant’s opposition.  However, the request should be denied if if the additional evidence to be obtained through discovery would not create a genuine dispute of material fact sufficient to defeat summary judgment.  In this case, the Fourth Circuit found no basis in the record for concluding that discovery would produce evidence creating a genuine dispute of material fact.  Accordingly, the Fourth Circuit affirmed the district court’s grant of summary judgment in Defendant’s favor without first granting Rogers’ request to conduct discovery.

Decision Affirmed

The Fourth Circuit affirmed summary judgment in favor of Defendants on both the breach of contract and statutory business conspiracy claims.

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9Oct

Truck Driver’s Termination not Racially Motivated

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By: Steven Franklin

Today, in Perry v. Mail Contractors of America, Inc., the Fourth Circuit affirmed the Western District of North Carolina’s Order granting the Defendant’s Motion for Summary Judgment against a Title VII claim for wrongful termination. The Plaintiff, Craig Perry, a person of color, claimed that Mail Contractors of America, Inc. (MCA) terminated him from his position as a truck driver because of his race.

McDonnell Douglas Corp. v. Green, sets the Fourth Circuit’s framework for a claim of discriminatory discipline. To establish a prima facie case, the plaintiff must demonstrate that (1) he engaged in prohibited conduct similar to that of a person of another race, and (2) disciplinary measures enforced against him were more severe than those enforced against the other person.

First, Mr. Perry was unable to provide evidence of a truck driver receiving less punishment for an accident similar to his. Mr. Perry was terminated because he failed to reduce his speed despite having visibly hazardous road conditions directly ahead of him. Although he did show evidence of numerous other drivers in accidents that involved other vehicles, caused property damage, or resulted in traffic citations, they did not involve the kind of culpable conduct evident in Mr. Perry’s accident.

Second, there was evidence that MCA terminated an individual who was not a member of a protected class, but was involved in a similar accident shortly after Mr. Perry’s. The employees who terminated Mr. Perry were the same ones who terminated this subsequent individual. For these reasons, Mr. Perry was unable to establish a prima facie case, and the Fourth Circuit affirmed the District Court’s Order granting MCA’s Motion for Summary Judgment.

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8Oct

Fourth Circuit Denies Retaliation Claim Under Title VII

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By Joshua P. Bussen

Today, in Rome v. Development Alternatives, Inc., the Fourth Circuit affirmed the grant of summary judgment on a retaliation claim brought under Title VII. The plaintiff claimed, in the District Court of Maryland, that she had been constructively discharged by Development Alternatives, Inc., (“DAI”) after complaining about improper conduct by another employee. In granting summary judgment for the defendant, the district court held that the plaintiff, Heather Rome, had failed to present sufficient evidence to establish a prima facie case of retaliation.

Rome worked for DAI in its Venezuelan office attempting to promote democracy. While in the United States in 2008 Rome complained about one of her coworkers to DAI management. DAI responded by: issuing the coworker a warning, sponsoring team-building exercises, and sending a mentor to the Venezuelan office. Later that year Rome left work on approved leave; she would not return. Rome complained that she had to undergo surgery and was unable to come back to work. DAI told Rome that it would help her to find a position at any office she liked in the company once she was able. Eventually Rome stopped answering DAI’s calls. DAI allowed her to retain her benefits until March 2009, at which time it finally concluded that she had abandoned her employment.

Title VII of the Civil Rights act prohibits “employer retaliation on account of an employee’s having opposed, complained of, or sought remedies for, unlawful workplace discrimination.” 42 U.S.C. § 2000e–3(a). In the lower court, Rome did not present direct evidence of retaliation, therefore the district court reviewed her claim under the well know “burden-shifting framework.” Under this framework, if the plaintiff shows that “(1) she engaged in a protected activity; (2) her employer acted adversely against her; and (3) the protected activity was causally connected to the adverse action,” the burden shifts to the employer to “present a legitimate non-retaliatory reason for the alleged adverse action.” If the employer is then successful in meeting its burden, the employee has a chance to show that the proffered reason is a mere pretext. Further, “constructive discharge” takes place when a defendant employer, motivated by unlawful bias, subjects an employee to intolerable working conditions.

Rome was successful in arguing that she had engaged in a protected activity by reporting her coworker, however, the circuit court found that she had not suffered an adverse action. It further found that she had failed to produce evidence tending to prove pretext. DAI was very accommodating in offering to help Rome, she just never came back to work. On this basis, the Fourth Circuit affirmed the lower court’s grant of summary judgment for DAI.

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3Oct

To Prove Damages, Plaintiff Had To Prove Benefits

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By Rolf Garcia-Gallont

The Fourth Circuit, in Projects Management Co. v. Dyncorp International LLC, affirmed summary judgment in favor of the Defendant in a breach of contract action because the Plaintiff did not offer sufficient proof of the benefits it had received from Defendant’s deficient performance.

Projects Management Co. (“PMC”) sued DynCorp International LLC (“DynCorp”) for breach of contract after DynCorp mistakenly made payments totaling approximately 1.2 million dollars to the personal bank account of PMC’s Managing Director, Hussein Fawaz, rather than to PMC.

The evidence indicated that Fawaz had used at least some of the money that DynCorp deposited in his account to benefit PMC (by paying subcontractor and supplier expenses related to the contract). Still, PMC sought damages for the full amount it had deposited in Fawaz’s account, and refused to provide information that could have established how much of the money had been used to benefit PMC.

After DynCorp moved for summary judgment based in part on PMC’s failure to provide a proper measure of actual damages, PMC changed their demand for damages to $ 103,000. PMC claimed that this new amount took into account the money that Fawaz had used to PMC’s benefit. The only support for this assertion was a “conclusory affidavit” from the same PMC representative who had initially insisted that the proper measure of damages was the full 1.2 million dollars.

Applying Virginia law, the Fourth Circuit reiterated that the plaintiff in a breach of contract action has the burden to establish damages “with reasonable certainty.” To meet this burden, PMC would have had to offer evidence of the benefit it received, so that it could have been subtracted from the total amount deposited in Fawaz’s account to establish actual damages. At trial, PMC failed to offer evidence of the amount of benefit, relying instead on a “conclusory affidavit” that simply presented a final number. The Fourth Circuit did not consider this sufficient to establish damages to a reasonable certainty, and it affirmed the district court’s decisions to grant summary judgment and to deny reconsideration.

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