Wednesday, November 30, 2005

$300,000 judgment reversed for failure to exhaust administrative remedies

In Chacko v. Patuxent Institution, No. 04-1577 (4th Cir. Nov. 29, 2005) (PDF), the Fourth Circuit held that "a plaintiff fails to exhaust his administrative remedies where, as here, his administrative charges reference different time frames, actors, and discriminatory conduct than the central factual allegations in his formal suit."

In a general verdict, the jury found that Patuxent created a hostile work environment for Chacko and awarded him $1,160,000. (Based on Title VII’s damages cap, the district court reduced the damages to $300,000.) His case at trial encompassed harassment over his two decades at Patuxent, relying heavily on testimony that primarily coworkers (and not supervisors) called him national-origin epithets.

However, his EEOC charge alleged "specific episodes of harassment," and did not mention "coworker harassment" or national-origin epithets. "The administrative charges thus dealt with different time frames, actors, and conduct than the central evidence at trial," the Fourth Circuit held, and it reversed the $300,000 judgment in Plaintiff's favor.

Thus, if a Plaintiff intends to rely on evidence of ongoing coworker harassment at trial to support a verdict against his employer, he must allege more than a few specific instances of supervisor harassment in his EEOC charge. "Here ... a reasonable investigation of discrete instances of supervisor misconduct not
involving name calling could not be expected to lead to a continuous pattern of nonsupervisory misconduct which did involve name calling."

Tuesday, November 29, 2005

C-8 Lawsuit Settled

The State Journal reports that the Environmental Protection Agency has reached an agreement with DuPont to settle the ongoing C-8 lawsuit.

Rep. Rahal off the hook

Steve Minor notes at the SW Virginia Law Blog that Judge Conrad of the Western District of Virginia has ruled (PDF) that the United States was the sole proper defendant for claims against Congressman Nick Joe Rahall for televised statements about the plaintiff, under the Federal Tort Claims Act as amended by the Westfall Act.

The complaint alleges that the defendant called the plaintiff a “bigoted, right wing, redneck, racist wacko.” The remarks were made in response to the reporter’s allegations that Rahall’s support of the Council on American-Islamic Relations (CAIR) aided terrorism.

Wednesday, November 23, 2005

"Dude, you're gettin' a trial."

In Miles v. Dell, Inc. No. 04-2500 (4th Cir. Nov. 22, 2005) (PDF)
the Fourth Circuit made summary judgment a little more difficult in Title VII cases by holding that "in cases where the plaintiff can show that the firing and replacement hiring decisions were made by different decisionmakers, the plaintiff can make out a prima facie case without showing replacement by someone outside the protected class."

The opinion reviews some of the mysterious history of the "fourth prong" of the prima facie case under which plaintiffs in the Fourth Circuit (and many others) must show that after they were terminated, "the position remained open or was filled by similarly qualified applicants outside the protected class." Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277 (4th Cir. 2004) (en banc). The court recognized that this requirement is not dictated by Supreme Court precedent, and "[i]ndeed, the Supreme Court has never addressed the question whether a Title VII plaintiff must show that she was replaced by someone outside her protected class in order to make out a prima facie case."

In this case, the Plaintiff, a former account manager at Dell, Inc., sued Dell for sex discrimination, pregnancy discrimination and retaliation under Title VII. The district court granted Dell’s motion for summary judgment as to both discrimination claims, concluding that, under governing circuit precedent, the plaintiff failed to make out a prima facie case of sex or pregnancy discrimination because she was replaced by another female. On appeal, the Fourth Circuit reversed, explaining that "when one individual makes the decision to fire the plaintiff and another makes the replacement hiring decision, the second individual's hiring decision has no probative value whatsoever as to whether the first individual's firing decision was motivated by the plaintiff's protected status."

If all of that makes you feel as dumb as that "dude from Dell" looks, rest assured. It all makes more sense when the role of the prima facie case is viewed in its proper light. The court takes the opportunity to "clarify" (and I use that term loosely) the role of the prima facie case as follows:
At times by way of shorthand but frequently out of misunderstanding,it is often said that satisfaction of the prima facie case gives rise to an actual inference of discrimination. However, this is incorrect. The prima facie case serves as a screen for cases whose facts give rise to an inference of non-discrimination — screening those cases out — rather than as a test the satisfaction of which affirmatively establishes an actual inference of discrimination. The Supreme Court could not have been any clearer in Texas Department of Community Affairs v. Burdine: "The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection." 450 U.S. 248, 253-54 (1981).
So in other words, the prima facie case does not create an inference of discrimination, but instead, it "paves the way" for such an inference by dispelling negative inferences (i.e. inferences of non-discrimination). An established prima facie case will steal the defendant's thunder.

The upshot of this opinion is that courts will now be looking more closely at who the decisionmakers are to discover whether different decisionmakers are doing the hiring and firing. Simply showing that the defendant, as an organization, replaced a woman with a woman may not be enough. The court was careful to note that ordinarily, the fourth prong will need to be established. The "different decisionmaker" analysis is an exception to the rule.

The court did affirm the dismissal of the Plaintiff's retaliation claim because the EEOC charge of discrimination did not allege retaliation. The Plaintiff did not check the retaliation box, nor did she allege facts that would have put Dell or the EEOC on notice that she was charging Dell with retaliation.

Thursday, November 17, 2005

Fourth Circuit holds man with 30 lb. lifting restriction not disabled

In Taylor v. Federal Express, No. 04-2056 (4th Cir. Nov. 16, 2005) (PDF), summary judgment in favor of Fed Ex was affirmed where the plaintiff was found not to be disabled under the ADA since he retained the ability to engage in a wide range of daily activity and to work in numerous jobs.

The plaintiff, who suffered from a back injury, showed through a vocational expert that his impairment precluded him from 1,871 kinds of jobs and "locked him out of the job market." However, the vocational evidence also showed that "he qualified for over 1,400 different types of jobs and over 130,000 actual jobs in the Baltimore-Washington region."

The Fourth Circuit wrote that
To hold that in the face of such evidence a factfinder could conclude that Taylor was substantially limited in the major life activity of working would be to ignore the Supreme Court’s recent directive in Toyota [Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 200 (2002). There the Court emphasized that the terms "substantially limits" and "major life activity" "need to be interpreted strictly to create a demanding standard for qualifying as disabled."Toyota, 534 U.S. at 197; see also Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2002) (holding that evidence that plaintiff’s impairment caused a 47 percent loss of access to the job market was insufficient to establish a disability). Given that Taylor admittedly retains the ability to engage in a wide range of daily activity and to work in over 100,000 jobs in his geographic region, a reasonable juror could not find that his impairment substantially limits his ability to work, or for that reason renders him disabled for purposes of the ADA.
Interestingly, the Court also noted that "The district court assumed without deciding that working is a major life activity under the ADA. The Supreme Court has expressly declined to resolve this question. See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 200 (2002); Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999). Because this case does not require us to decide the issue, we too will simply assume that working is a major life activity."

Someone really needs to challenge that point. Nearly every ADA case we see uses "working" as the major life activity that is "substantially impaired."

Saturday, November 12, 2005

Doff law

The case of IBP, Inc v. Alvarez, No. 03-1283 (Nov. 8, 2005), raised questions concerning the coverage of the Fair Labor Standards Act (FLSA) with respect to activities of employees who must "don and doff" (i.e., "put on" and "take off") protective clothing on the employer’s premises before and after they engage in the productive labor for which they are primarily hired.

The principal question was whether the time employees spent walking between the changing area and the production area was compensable under the FLSA. The Supreme Court answered "yes." The second question was whether the time employees spent waiting to put on the protective gear was compensable. The Supreme Court answered "no."

To summarize, employees who are required to wear protective clothing as part of their jobs must be paid for donning and doffing, but they need not be compensated for their time spent "waiting to don."

Wednesday, November 09, 2005

Bar fight

What else would members of "the bar" fight with but beer? This article in the Daily Mail reports that "[a] Charleston lawyer is accused of throwing a can of beer at another Charleston lawyer on the West Virginia University law school steps just before last Wednesday's football game, according to a criminal complaint in Monongalia Magistrate Court."

Thursday, November 03, 2005

Recusal unnecessary, DEP says

The papers are concerned about recusal again today. This time, the Charleston Gazette has an article noting that "State regulators say that they saw no reason to ask Supreme Court Justice Brent Benjamin to recuse himself from the company’s fight to block the temporary closure of a Massey Energy operation for repeated environmental violations."

Last year, Massey CEO Don Blankenship spent more than $3 million to help Benjamin unseat Justice Warren McGraw, according to the article.

Wednesday, November 02, 2005

A Recusal Refusal

This article in the Daily Mail notes that "[a] tort reform advocate said State Supreme Court Justice Larry Starcher's refusal to step aside in a case involving Massey Energy 'is a great example of why West Virginia has earned our label of "Judicial Hellhole."'"

Massey subsidiary Marfork Coal Co. on Monday said Starcher should remove himself from a case involving the company because Starcher called Massey Chief Executive Officer Don Blankenship "a clown" and said he was "stupid." Starcher also "wrote in June that it was true he had said that in his opinion, 'Massey has not been a good corporate citizen.'"

According to the article, Starcher stated, "Despite any public statements I may have made, I can fairly sit on this matter and correctly and fairly apply the law, whichever way it goes. I respectfully decline to step aside."

State Supreme Court To Take on Charleston's User Fee

This AP article in the State Journal notes that "[a] fight over Charleston's dollar-a-week service fee reached the state Supreme Court Tuesday." The Court will consider whether it is appropriate for cities like Charleston, Huntington and Weirton to extract weekly fee from everyone who works in those cities.

To view the briefs filed by the parties, check out the Court's argument docket page (Item No. 2).

Tuesday, November 01, 2005

Fired worker sues Allegheny Energy over suit seeking his identity

The AP ran an interesting story yesterday about a lawsuit filed by a former employee of Allegheny Energy, Inc. alleging that the company wrongfully used the courts to unmask him after he posted a racial slur on the Internet about the company's policies. "Clifton G. Swiger, of Fairview, W.Va., was wrongfully fired and had his privacy violated because he posted the message on his own time from his home computer, the lawsuit contends."

The company filed suit against a "John Doe" who posted the message, then subpoenaed Yahoo! Inc. to discover Swiger's identity. The company then dropped the suit less than a month after it learned Swiger's identity and it terminated him.

According to the article, "Swiger's message used a slur for blacks in referring to the company's diversity policy, sarcastically calling it 'Yet another brainstorm that was going to bring on tremendous growth, high dividends and astronomical profits!'"