Tuesday, July 21, 2009

Fourth Circuit vacates summary judgment for employer in Title VII race and sex harassment case

In EEOC v. Central Wholesalers, Incorporated, No. 08-1181 (4th Cir. July 21, 2009), the Fourth Circuit held that a jury must decide whether a black female employee at a Maryland company was racially and sexually harassed in violation of Title VII, reversing summary judgment in favor of the employer.

The Plaintiff, who was the only black woman in the department, claimed that her coworkers viewed pornography in the cubicle next to her, and used racist and sexist language in her presence on a "daily basis." She claimed the harassment was so severe and pervasive that she was forced to quit.

Although the employer maintained an anti-harassment handbook policy and took some steps in response to the Plaintiff's complaints, the court found that the steps were ineffective. “There was a clear pattern in this case of complaints by Medley and then responses by Central that consistently failed to end the harassment.”

The Court noted that the defendant could have "demoted the four primary offenders, suspended them from work, reduced their pay, or issued them written reprimands," but did not. The Court added
We want to emphasize, however, that we are not attempting to create an exhaustive list of remedial measures an employer could employ, nor do we intend our opinion to be read as suggesting that Central could have prevailed on summary judgment if it employed a particular combination of the remedial steps we identified above. Instead, we list these measures to illustrate the types of remedial actions that Central did not take and that a rational jury could find would have been reasonably calculated to end the harassment.

The Court clearly was not impressed with the employer's attempts to stop the harassment in this case, and found summary judgment to be inappropriate.

EEOC v. Central Wholesalers, Incorporated, No. 081181 (4th Cir. July 21, 2009)

Thursday, July 09, 2009

Obama nominates Judge Irene Berger for federal bench

West Virginia Headline News and Talk Radio reports that President Obama has nominated Circuit Judge Irene Berger to the United States District Court for the Southern District of West Virginia. If confirmed, she would be West Virginia's first black federal judge.

Tuesday, July 07, 2009

Attorney Filing Manual released by N.D.W.Va.

A friend pointed out to me today that the United States District Court for the Northern District of West Virginia has created an Attorney Filing Manual that is now posted on the Court's web site.

The 20-page manual provides guidance on how to e-file certain types of documents such as proposed orders, sealed documents, voluminous documents, etc., and explains when documents should be filed in the traditional (paper) format.

For those too busy or lazy to read the whole thing, I've created sort of an unofficial summary of the items that I thought were most significant to civil practitioners.


To commence a civil action, filers must deliver, in paper format, a Civil Cover Sheet, Notice of Filing, and payment for the filing fee to the clerk’s office. The clerk will then open the case and send an electronic notice to the filer. Once the electronic notice is received, the filer must electronically file the complaint (all before the statute of limitations expires). (Rule 3.E and Rule 8).

To effectuate service of process, the summonses must be prepared in paper form by the plaintiff and provided to the clerk’s office to sign and seal before service. (Rule 9.1.A).

For pro hac vice attorneys, they must register as users of the CM/ECF system. They will have a read-only access. The local attorney must file all documents, per LR Gen P 83.02. (Rule 6).

Don't combine cross-motions with responses to opponents' motions. Never file a combined response and cross-motion for summary judgment. It is critical that the cross-motion be filed separately so that it will appear on the court’s pending motions report. (Rule 10.1).

Do not file multiple motions as a single document. If you must, be sure to register in CM/ECF that you are requesting multiple forms of relief. (Rule 10.2).

File a memorandum of law as an attachment instead of as a single document with the motion. (Rule 10.2).

Exhibits should be attached to motions, not to the memoranda of law in support of the motions. (Rule 10.3).

Exhibits already on file should not be attached again. Instead, merely refer to the document by its document number. (Rule 10.3).

Attach proposed amended pleadings as exhibits to the motion for leave to amend. (Rule 11.A).

Proposed orders should not include the word “proposed” in the document text. Put the word “proposed” in the CM/ECF description box. (Rule 11.B). Proposed orders that are submitted with motions should be filed as attachments to the motion. Proposed orders that do not need motions should be filed under the proposed order event category. (Rule 17.3).

To file a document under seal, the party must first electronically file a motion for leave to file the document under seal. Along with the motion, present the sensitive information in a sealed envelope marked “sealed” to the clerk’s office. Once the court grants the motion to seal, the judge will electronically enter an order authorizing the filing of the documents under seal. The clerk’s office will then file the sealed documents in the appropriate manner. Filers must effect service of sealed documents through traditional means. (Rule 12.2).

Redact the following types of information: social security numbers, names of minors, birth dates, financial account numbers, and home addresses in criminal cases. (Rule 12.2.D).

File excerpts of lengthy exhibits. Filers who file excerpts do so without prejudice to their right to timely file additional excerpts or the complete document. (Rule 14.1.A).

Lengthy attachments of 20 pages or more must be filed with the judge in paper format (courtesy copy) indexed and tabbed, within three days of electronic filing or not less than two working days before any hearing on the filing. (Rule 14.1.B).

7 megabytes is the limit for document size. If larger than 7MB, docs must be split into segments of 7 megabytes or smaller. (Rule 14.2).

Retain documents with original signatures for 60 days after all dates for appellate review in the case have expired. (Rule 14.5).

Upon obtaining permission to exceed the page limit for a filing, the filing party must file a paper copy of the document with the judge or magistrate. (Rule 14.6).

Multiple signature documents may be signed in paper format, scanned and filed, OR, the filer may convert the document into PDF text format and submit using "/s/" for the signatures of all signatories. (Rule 15.3).

Hyperlinks are allowed in PDFs filed with the court to link to other portions of the same document or to internet sites that contain source documents for citation. (Rule 22).

Attorney Filing Manual 7-2-2009

Friday, July 03, 2009

Fourth Circuit affirms injunction to allow miners to continue working

Massey Energy and its subsidiary must offer interim jobs to 85 miners pending the NLRB's decision on unfair labor practice claims, the Fourth Circuit ruled on July 1 in Muffley v. Spartan Mining Co., d/b/a Mammoth Coal Co., No. 08-1973 (4th Cir. July 1, 2009) (PDF).

After an administrative law judge found that Mammoth Coal Company had systematically discriminated against union members, the National Labor Relations Board sought injunctive relief in federal district court pursuant to § 10(j) of the National Labor Relations Act.

Following an evidentiary hearing, the district court issued a detailed written opinion, explaining its order granting this relief in part and denying it in part. The court ordered Mammoth to offer employment to persons that it had refused to hire because of union affiliation but denied substantial additional injunctive relief sought by the Board.

In an issue of first impression for the Fourth Circuit, the court held that the proper legal standard for deciding whether to grant a Section 10(j) injunction is the traditional four-part equitable test. See Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 195–96 (4th Cir. 1977).

Section 10(j) allows the district court to award such temporary injunctive relief “as it deems just and proper.”

The 3d, 5th, 6th, 10th and 11th circuits have adopted a two-step approach, determining whether (1) "reasonable cause" exists to believe a violation of the NLRA has occurred, and (2) injunctive relief is "just and proper."

The 8th and 9th circuits have applied the "traditional equitable standard," like the Fourth Circuit's Blackwelder standard, under which a district court determines whether to grant § 10(j) relief by weighing the following four factors: (1) the possibility of irreparable injury to the moving party if relief is not granted; (2) the possible harm to the nonmoving party if relief is granted; (3) the likelihood of the moving party’ssuccess on the merits; and (4) the public interest.

The 1st and 2d Circuits have developed a "hybrid standard” that uses the four-part equitable standard as well as the reasonable cause step.

The Fourth Circuit ultimately concluded 8th and 9th Circuits were correct. "[I]n determining if a § 10(j) injunction should issue, the traditional four-part equitable test should govern what relief is 'just and proper.' Therefore, district courts are to utilize the Blackwelder factors in conducting the 'just and proper' analysis and need not undertake a separate 'reasonable cause' inquiry to determine whether to issue a § 10(j) injunction."

Even though the District Court applied the hybrid standard used by 1st and 2d Circuits, the Court found the error harmless and affirmed.

Muffley v. Spartan Mining Co., d/b/a Mammoth Coal Co., No. 08-1973 (4th Cir. 7/1/09)