Sunday, June 30, 2013

540-pound blackjack dealer not disabled under WV law

A blackjack dealer with morbid obesity, who was fired after being disciplined twice for violating Mardi Gras Casino and Resort's break policy and dress code, could not show that he was disabled under the West Virginia Human Rights Act (WVHRA).  The court affirmed summary judgment in favor of the employer. Andrew O. v. Racing Corporation of West Virginia, No. 12-1255 (Memorandum Decision) (June 24, 2013).


This memorandum decision is the first case to address whether morbid obesity is a disability under the West Virginia Human Rights Act. In late 2011, the U.S. District Court for the Eastern District of Louisiana bucked a long line of state and federal courts that held obesity (absent some underlying physiological cause) was not a disability.  The E.D.La. denied summary judgment to an employer, holding that the 2008 amendments to the ADA (called the "ADAAA") broadened the ADA's definition of "disability" such that severe obesity, even absent an underlying physiological cause, could be considered a disability. EEOC v. Resources for Human Dev., Inc., 827 F.Supp.2d 688, 694 (E.D.La. 2011)

In 2012, the Montana Supreme Court looked to the ADAAA for guidance in interpreting its own state law (the Montana Human Rights Act), and held that "[o]besity that is not the symptom of a physiological disorder or condition may constitute a 'physical or mental impairment' within the meaning of Montana Code Annotated § 49-2-101(19)(a) if the individual's weight is outside 'normal range' and affects 'one or more body systems' as defined in 29 C.F.R. § 1630.2(h)(1) (2011). BNSF Ry. Co. v. Feit, 281 P.3d 255 (Montana 2012)

The WV Supreme Court, however, refused to apply the ADAAA in interpreting the West Virginia Human Rights Act, holding that "the circuit court did not err in choosing not to apply federal cases interpreting the ADA or ADAAA to petitioner's WVHRA-based lawsuit."  As the court held in Stone v. St. Joseph's Hospital of Parkersburg, 208 W.Va. 91, 106, 538 S.E.2d 389, 404 (2000) (footnote omitted) the WVHRA "as created by our Legislature and as applied by our courts and administrative agencies, represents an independent approach to the law of disability discrimination that is not mechanically tied to federal disability discrimination jurisprudence."

This is also the first time I've seen the court refer to a disability discrimination plaintiff by first name and last initial.  The court, in footnote 1, wrote that "[t]he Court will address petitioner by his first name and last initial because his medical history is discussed herein."  I'm not sure if this signals a new trend or not in disability discrimination cases.

Monday, June 24, 2013

Supreme Court applies heightened causation standard to Title VII retaliation claims

In University of Tex. Southwestern Med. Ctr. v. Nassar, No. 12-484 (decided June 24, 2013) (PDF), the Supreme Court held that "Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action."

This is a significant victory for employers in this country, who are defending more and more Title VII retaliation claims.

The Court rejected the "mixed motives" standard, applicable to status-based Title VII claims, that imposes liability where an employer uses race, color, religion, national origin or sex as "a motivating factor for any employment practice, even though other factors also motivated the practice."  The mixed motive test is much easier for employees to prove.

Supreme Court chooses narrow definition of supervisor in Title VII cases, resolving circuit split

In Vance v.  Ball State University, No.  11-556 (decided June 24, 2013) (PDF), the United States Supreme Court decided a question left open in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v.  Boca Raton, 524 U. S. 775 (1998), namely, who qualifies as a “supervisor” in a case in which an employee asserts any Title IV claim for workplace harassment?

The answer to this question is important because employers may be strictly liable for harassment by supervisors.  Harassment by coworkers who are not supervisors will only lead to liability for employers who are negligent in failing to take action calculated to end the harassing behavior, once they learn of it.

Some courts have taken the view that a supervisor must be empowered to take “tangible employment actions.”  A tangible employment action is an action that effects “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, supra, at 761.

Other courts, including the Fourth Circuit in Whitten v. Fred’s, Inc., 601 F. 3d 231, 245–247 (4th Cir. 2010), have followed the more expansive definition of supervisor advocated by the EEOC’s Enforcement Guidance, which ties supervisor status to the ability to exercise significant direction over another’s daily work.

In its 5-4 decision, the Court “reject[ed] the nebulous definition of a ‘supervisor’ advocated in the EEOC Guidance[.]”  The Court ruled as follows:

We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” 
Justice Alito wrote the opinion for the majority, which consisted of  justices Alito, Roberts, Scalia, Thomas and Kennedy.

Monday, May 20, 2013

Fourth Circuit rules Chapter 13 bankruptcy debtor has standing to sue

In Wilson v. Dollar General Corp., No. 12-1573 (4th Cir. May 17, 2013) (PDF), an employee filed a charge of discrimination with the EEOC against his employer, Dollar General Corporation, alleging Dollar General failed to provide a reasonable accommodation for his disability.  While the claim was pending, he filed for Chapter 13 bankruptcy and properly listed his ADA claim as an asset. He then filed suit in district court, and Dollar General moved for summary judgment. The district court ruled  that the Chapter 13 bankruptcy did not deprive the employee of standing, but ruled against him on the merits.

In a case of first impression on the bankruptcy standing issue, the Fourth Circuit affirmed, joining five other circuits in ruling that, "unlike a Chapter 7 debtor, a Chapter 13 debtor possesses standing — concurrent with that of the trustee — to maintain a non-bankruptcy cause of action on behalf of the estate."

Regarding the merits, the court ruled that because the employee could not identify a possible reasonable accommodation that could have been discovered during the interactive process that would have allowed him to perform the essential functions of the job, his ADA claim was properly dismissed on summary judgment.

Wednesday, September 12, 2012

West Virginia's New Business Court

West Virginia's court system repeatedly ranks dead last in surveys about the fairness of states' litigation environments.  Yesterday, the West Virginia Supreme Court took a significant step toward changing that perception by creating a new business court division.

The Business Court Division is governed by Rule 29 of the West Virginia Trial Court Rules. It is not really a new "court," per se.  It is comprised of a panel of current and senior status circuit judges across the state.  It will only handle cases between business entities (business vs. business litigation), so its benefits for businesses in the state will be limited.  Expressly excluded from the court are cases involving personal injury claims, product liability claims, just about all types of consumer claims, insurance coverage disputes, employment claims, and landlord-tenant disputes.  Without such carve-outs, the plaintiff's lawyer lobby would have killed this idea right away.

According to the State Supreme Court, the goal was to design a Court that focuses on the complex issues that arise in commercial litigation.  Parties can file a motion to have their case transferred to the business division, and the Chief Justice of the West Virginia Supreme Court will rule on the transfer motion.  Cases handled by the business division will receive expedited treatment, and the presiding judge is charged with making sure "all reasonable efforts" are undertaken to conclude the case within ten months.

I'm not sure how much this will help our business climate, but it certainly can't hurt.

Thursday, March 15, 2012

U.S. Senate confirms Groh to U.S. District Court

Congratulations to Berkeley County Circuit Judge Gina Groh who was just confirmed to the federal bench by a 95-2 vote of the United States Senate.  Judge Groh will replace the late Judge W. Craig Broadwater who passed away in 2006.  Judge Groh will sit in the Martinsburg Division of the U.S. District Court for the Northern District of West Virginia.

Tuesday, February 28, 2012

W.Va. Supreme Court adopts apex deposition rule

High-ranking corporate officials with little or no personal knowledge of the facts of a civil case can be protected from deposition until after less-intrusive discovery options are exhausted, ruled the West Virginia Supreme Court of Appeals in  State ex rel. Massachusetts Mutual Life Ins. Co. v. Sanders, No. 11-1514 (Feb. 24, 2012).

In a case of first impression, the Court was asked to consider whether a high-ranking corporate official of Massachusetts Mutual Life Insurance Company, who was without any personal or unique knowledge of the facts and circumstances of the case, could be compelled to be deposed, despite the availability of other corporate witnesses and other means of discovery.  The Court held that the trial court should have applied the so-called "apex deposition rule" to determine whether a protective order should have been entered.

In Syllabus Point 3, the court adopted the "apex deposition rule" as follows:

3. When a party seeks to depose a high-ranking corporate official and that official (or the corporation) files a motion for protective order to prohibit the deposition accompanied by the official’s affidavit denying any knowledge of relevant facts, the circuit court should first determine whether the party seeking the deposition has demonstrated that the official has any unique or personal knowledge of discoverable information. If the party seeking the deposition cannot show that the official has any unique or personal knowledge of discoverable information, the circuit court should grant the motion for protective order and first require the party seeking the deposition to attempt to obtain the discovery through less intrusive methods. Depending upon the circumstances of the particular case, these methods could include the depositions of lower level corporate employees, as well as interrogatories and requests for production of documents directed to the corporation. After making a good faith effort to obtain the discovery through less intrusive methods, the party seeking the deposition may attempt to show (1) that there is a reasonable indication that the official’s deposition is calculated to lead to the discovery of admissible evidence, and (2) that the less intrusive methods of discovery are unsatisfactory, insufficient or inadequate. If the party seeking the deposition makes this showing, the circuit court should modify or vacate the protective order as appropriate. As with any deponent, the circuit court retains discretion to restrict the duration, scope and location of the deposition. If the party seeking the deposition fails to make this showing, the trial court should leave the protective order in place.

The Court was quick to add that this rule is not blanket prohibition of depositions of high-ranking corporate officials.  However, it is a means of ordering discovery to avoid undue burden and harassment of such officials.