Fourth Circuit affirms dismissal of age discrimination case

In Warch v. Ohio Cas. Ins. Co., No. 04-2354 (4th Cir. January 30, 2006) (PDF), the Fourth Circuit affirmed summary judgment in favor of an employer in an age discrimination claim advanced under both pretext and mixed motive approaches. The opinion, authored by Judge Traxler, is instructive on the proper application of these theories (especially the pretext theory) where the employee has a long history of documented poor performance.

The plaintiff argued that he should not be required to demonstrate in his prima facie case that he met the employer's legitimate job expectations. According to the plaintiff, he should only be required to prove that he was "qualified" for the job. He argued that inquiring whether the employee met his employer’s legitimate job expectations improperly collapses the second stage of the McDonnell Douglas framework, where the employer brings forth its legitimate, non-discriminatory reason for the termination, into the prima facie case.

The court rejected this argument, holding that "considering an employer’s legitimate expectations comports with the purpose of requiring the establishment of a prima facie case — to screen out those cases whose facts give rise to an inference of nondiscrimination, in other words, to eliminate the most common, nondiscriminatory reasons for the employer’s conduct." The Court ruled that "we find no impermeable barrier that prevents the employer’s use of such evidence at different stages
of the McDonnell Douglas framework."

The Court disagreed with the holding of Cline v. Catholic Diocese of Toledo, 206 F.3d 651 (6th Cir. 2000), which held that, "when assessing whether a plaintiff has met her employer’s legitimate expectations at the prima facie stage of a termination case, a court must examine plaintiff’s evidence independent of the nondiscriminatory reason ‘produced’ by the defense as its reason for terminating plaintiff." Id. at 660-61. The Court explained that

[B]ecause a plaintiff must show by a preponderance of the evidence that he met the employer’s legitimate job expectations to prove his prima facie case, the employer may counter with evidence defining the expectations as well as evidence that the employee was not meeting those expectations. To require otherwise would turn the plaintiff’s burden at the prima facie stage into a mere burden of production, making it "difficult to imagine a case where an employee could not satisfy the ‘qualified’ [or legitimate expectation] element as defined in Cline.

Regarding the mixed motive approach, the employee produced evidence of an age-related comment in the workplace, but was unable to present evidence showing the comment "was more than an isolated event or that it had any nexus with the decision to terminate him." He produced circumstantial evidence that his supervisor purposefully rigged a performance audit that he originally passed so that it would instead show that he failed. But, the court found that "[t]his evidence ... does not create any inference that age was a motivating factor in Warch’s termination. Furthermore, there is no evidence that the other well-documented performance problems Warch encountered were somehow linked to the failed audit score." The court also found fault with statistical evidence advanced by the plaintiff, and considered it to be non-probative circumstantial evidence of discriminatory animus.

Capitol crimes

Here in Wild Wonderful, we're putting high tech to use at the state Capitol. Okay, not good use, but use, nonetheless.

This article in the Charleston Gazette reports that "[s]tate investigators have stumbled onto a basement office in the West Virginia Capitol outfitted with computers, video and audio gear, and software used to pirate movies and music recordings."

"... [O]ne hard drive contained approximately 40 full-length motion videos .... Two other hard drives contained over 3,500 MP3 music files consuming more than 14 GB of hard drive space." The article does not reveal the pirates' names.

Apparently, someone in General Services "sidestepped state purchasing rules to buy more than $88,000 worth of computers and related equipment over the last three years, including the items discovered in the basement office."

Unfortunately, the article has been slashdotted. When the Governor said West Virginia is open for business, this isn't what he had in mind.

Fourth Circuit narrows reach of Rooker-Feldman doctrine

In Davani v. Virginia Dep't of Transp., No. 05-1432 (4th Cir. January 17, 2006) (PDF), the Fourth Circuit narrowed its previously expansive interpretation of the Rooker-Feldman doctrine in light of recent Supreme Court precedent.

The Court found that the district court incorrectly dismissed the plaintiff's claim under Rooker-Feldman. The plaintiff, an employee of the Virginia Department of Transportation, filed a grievance over disciplinary warnings given to him and his subsequent termination. A hearing officer upheld the termination, and the plaintiff appealed to the Circuit Court of Fairfax County. The circuit court dismissed the appeal, so the plaintiff filed suit in federal court alleging he was discriminated against on the basis of race, national origin, and religion. The district court dismissed the suit, citing Rooker-Feldman.

Applying the new, narrower view of the doctrine, the Fourth Circuit reversed and remanded the case. The court explained that

Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. 1517 (2005) ... significantly altered this circuit’s interpretation of the Rooker-Feldman doctrine. Under our prior cases, the Rooker-Feldman doctrine had been interpreted broadly to provide that the loser in a state-court adjudication was barred from bringing suit in federal court alleging the same claim or a claim that could have been brought in the state proceedings. Exxon teaches, however, that the Rooker-Feldman doctrine applies only when the loser in state court files suit in federal district court seeking redress for an injury allegedly caused by the state court’s decision itself.

The Court held that "[b]ecause Davani’s suit does not challenge the state court’s decision, and it instead seeks redress for an injury allegedly caused by Appellees, the Rooker-Feldman doctrine does not apply, and the district court’s dismissal of Davani’s complaint was in error."

The narrowing of Rooker-Feldman does not mean that the plaintiff's suit is not precluded by other doctrines such as collateral estoppel and res judicata, however. But, the Court went on to hold that "prudence counsels that, because of the undeveloped state of the record, we refrain" from addressing those arguments at this time.

Fourth Circuit reverses dismissal of Clean Air Act whistleblower claim

In Knox v. US Dep't of Labor, No. 04-2486 (4th Cir. January 17, 2006) (PDF), the plaintiff, an employee of the National Park Service Job Corps Center in Harper’s Ferry, filed an administrative complaint claiming that his employer, the Department of Interior ("DOI"), violated the whistle-blower provision of the Clean Air Act ("CAA"). The plaintiff complained to his superiors that the building in which he worked was contaminated with asbestos. The management threatened to reduce his pay and eventually terminated him.

After an ALJ granted him relief on his complaint, the Administrative Review Board ("ARB") of the U.S. Department of Labor dismissed the complaint based on its conclusion that the plaintiff did not engage in a protected activity under the CAA. The ARB reasoned that because the CAA is concerned with the pollution of "ambient air," i.e., air external to buildings, and Knox only complained of asbestos within his workplace, he did not engage in protected activity under the CAA.

The Fourth Circuit reversed the ARB and remanded the case, finding that it applied an incorrect standard:

it is apparent that the ARB altered its protected activity standard from an inquiry into Knox’s reasonable beliefs to a requirement that Knox actually conveyed his reasonable beliefs to management. Although the contents of Knox’s complaints may provide evidence of his reasonable beliefs, it does not follow that he must have necessarily conveyed a notion to have reasonably believed it, as the ARB demanded of him.

The Court therefore found that Knox engaged in protected activity under the CAA.

Fourth Circuit rules elimination of waste a major life activity

In Heiko v. Colombo Savings Bank FSB, No. 04-2046 (4th Cir. Jan. 10, 2006) (PDF), the Fourth Circuit ruled that the ability to eliminate bodily waste is a major life activity under the Americans with Disabilities Act. The ruling reversed summary judgment in favor of the employer on a Maryland bank employee's claim he was denied a promotion while undergoing treatment for end-stage renal disease.

"The elimination of bodily waste is . . . not only ‘of central importance to daily life,' … but of life-sustaining importance," the unanimous opinion stated. The court added, however, that "[t]his does not mean ... that every example of organ failure will be equated with a major life activity. ... We have no occasion to consider whether the malfunction of other organs would have a similar effect on a major life activity. ... Such questions are simply not before us." This is important to such cases as diabetes, where the pancreas stops functioning. The failure of this organ, and the halting of insulin production, may not necessarily be equated with a major life activity under the ADA. This opinion indicates that the court will look at the effect of the impairment on the individual's life to determine whether the person meets the definition of disabled.

The court went on to find that Heiko’s kidney failure substantially limited his ability to eliminate waste, and that "no reasonable jury could conclude otherwise." Heiko had to undergo dialysis three afternoons per week, for a total of twelve hours, not including travel time to and from the dialysis center, or the time required to set up the dialysis equipment. Although he could work a 40 hour work week, he was required to arrive at work by 7:00 a.m. every other day. He also suffered side-effects from dialysis, including nausea and fatigue.

The court summarized its holding: "In sum, plaintiff’s end-stage renal disease is his physical impairment, the elimination of waste is the major life activity that is limited, and the limitation was a substantial one because Heiko was required to spend at least four hours, three days a week undergoing dialysis in order to remove waste from his body. ... In short, Heiko seems just the sort of person for whom the ADA was intended. Viewed from the perspective of the forest or the trees, the Act’s coverage of him is apparent."