Brian Peterson's West Virginia Legal Weblog

Lincoln's Day saves the day for defendant

2012-01-24T08:43:00.000-05:00

In Postlewait v. City of Wheeling, the West Virginia Supreme Court confirmed that legal holidays designated in W.Va. Code § 2-2-1 are "legal holidays" under Rule 6(a) of the West Virginia Rules of Civil Procedure, including "Lincoln's Day." Therefore, they are excluded in calculating deadlines of fewer than 11 days:

The question we must therefore resolve is, does the term "legal holiday" in Rule 6(a) of the Rules of Civil Procedure include "Lincoln's Day" (the Friday after Thanksgiving Day) or any other legal holiday designated by the Legislature in W.Va. Code, 2-2-1? We hold that it does.

In this case, the 18 calendar days between the November 19, 2010, judgment order and the December 7, 2010 motion for a new trial were only ten "Rule 6" days due to all of the weekends and holidays. Therefore, the motion for a new trial was timely filed.

Changes to Jurisdiction, Removal and Venue Statutes Now Effective

2012-01-12T13:44:00.001-05:00

On Wednesday, December 07, 2011, President Obama signed into law H.R. 394, the "Federal Courts Jurisdiction and Venue Clarification Act of 2011," which amends the statutes dealing with jurisdiction and venue of civil actions in U.S. district courts, including procedures for removal of cases from state courts.

For Fourth Circuit practitioners, one of the more important changes relates to the 30-day time limit for defendants to remove a case. You may recall there was a split of circuits on the so-called "last served defendant rule." The Fourth Circuit itself was even split on this issue. There were two different opinions in Barbour v. Int'l Union United Auto. Aerospace, a 2010 opinion adopting the last-served defendant rule, and a later 2011 en banc opinion adopting the "McKinney Intermediate Rule". No use going into details because this new law settles the question once and for all.

Under the newly amended 28 U.S.C. 1446(b), each defendant now has 30 days to remove from receipt or service of the initial pleadings. The new 1446(b)(2) reads:

(A) When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.

(B) Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.

(C) If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.

This avoids unfair prejudice to the later-served defendant where an earlier-served defendant blew his deadline.

The new law also has some other provisions you will want to review. It

allows removals in diversity cases beyond one year where the court “finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.”
adopts a “preponderance of the evidence” standard for proving the amount in controversy and makes some other changes to the amount in controversy proof requirements; and
allows removal of cases involving both removable and non-removable claims with required severance and remand of certain non-removable claims; and
allows venue changes by consent of all parties

This law does a lot to improve defendants' access to the federal courts.

Supreme Court recognizes "ministerial exception" to employment discrimination laws

2012-01-12T09:31:00.000-05:00

Yesterday, the Supreme Court recognized, for the first time, a “ministerial exception” to employment discrimination laws, holding that churches and other religious organizations are free to choose their ministers without government interference. Hosanna-Tabor Church v. Equal Employment Opportunity Commission, No. 10-553 (Jan. 11, 2012).

Writing for the unanimous court, Chief Justice Roberts stated that allowing anti-discrimination lawsuits against religious organizations could force churches to take religious leaders they no longer want.

"Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs ... By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments."

The Court avoided creating a set of "hard and fast" rules regarding who is a religious employee of a religious organization. "We are reluctant ... to adopt a rigid formula for deciding when an employee qualifies as a minister ... It is enough for us to conclude, in this, our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment."

Federal Judges Overturn Redistricting Plan

2012-01-03T15:29:00.000-05:00

Federal Judges Overturn Redistricting Plan: The Legislature has time to come up with a new Congressional plan before one automatically takes effect.

Jefferson County Commission v. Tennant, Civil Action No. 2:11-CV-0989 (Mem. Op. and Order dated Jan. 3, 2012):

"Upon careful consideration of the parties' written submissions and the testimony, evidence, and arguments of counsel, we conclude that West Virginia's congressional apportionment was not accomplished in conformance with the Constitution of the United States. The plaintiffs are therefore entitled to have the enactment declared null and void, and, in turn, to have the Secretary of State permanently enjoined from conducting West Virginia's elections for Congress in accordance therewith."

4th Circuit sides with Berkeley County Schools in cyberbullying case

2011-07-28T10:40:00.000-05:00

KOWALSKI v. BERKELEY COUNTY SCHOOLS

Kara KOWALSKI, Plaintiff–Appellant, v. BERKELEY COUNTY SCHOOLS, a public school district; Manny P. Arvon, II, Superintendent, in his official capacity; Ronald Stephens, Principal, in his official capacity and individually; Becky J. Harden, Vice Principal, in her official capacity and individually; Buffy Ashcraft, cheerleading coach, in her official capacity and individually; Rick Deuell, Assistant Superintendent, in his official capacity, Defendants–Appellees.

No. 10–1098.

Argued March 25, 2011. -- July 27, 2011

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.

ARGUED:Nancy A. Dalby, Charles Town, West Virginia, for Appellant. Tracey Brown Eberling, Steptoe & Johnson, LLP, Martinsburg, West Virginia, for Appellees. ON BRIEF:Jason P. Foster, Steptoe & Johnson, LLP, Martinsburg, West Virginia, for Appellees.

OPINION

When Kara Kowalski was a senior at Musselman High School in Berkeley County, West Virginia, school administrators suspended her from school for five days for creating and posting to a MySpace.com webpage called “S.A.S.H.,” which Kowalski claims stood for “Students Against Sluts Herpes” and which was largely dedicated to ridiculing a fellow student. Kowalski commenced this action, under 42 U.S.C. § 1983, against the Berkeley County School District and five of its officers, contending that in disciplining her, the defendants violated her free speech and due process rights under the First and Fourteenth Amendments. She alleges, among other things, that the School District was not justified in regulating her speech because it did not occur during a “school-related activity,” but rather was “private out-of-school speech.”

The district court entered summary judgment in favor of the defendants, concluding that they were authorized to punish Kowalski because her webpage was “created for the purpose of inviting others to indulge in disruptive and hateful conduct,” which caused an “in-school disruption.”

Reviewing the summary judgment record de novo, we conclude that in the circumstances of this case, the School District's imposition of sanctions was permissible. Kowalski used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District's recognized authority to discipline speech which “materially and substantially interfere[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others.” Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 513 (1969) (internal quotation marks omitted). Accordingly, we affirm.

* * *

http://caselaw.findlaw.com/us-4th-circuit/1575563.html

New Official Site for U.S. Code Launched in Beta

2011-07-28T10:30:00.001-05:00

From LawSites by Robert Ambrogi

New Official Site for U.S. Code Launched in Beta:
The official federal government publisher of the U.S. Code yesterday unveiled a beta version of a new U.S. Code website that features a number of enhancements for searching and working with the nation’s governing body of laws.

Fourth Circuit rules Family Dollar store managers FLSA exempt

2011-03-23T07:42:00.000-05:00

Family Dollar store managers are a hard working bunch. They are expected to perform most of the same duties as their subordinates and also manage their stores. They often work 50-65 hours per week, which makes a collective action worth an awful lot of money if they can prove they were misclassified as exempt. Yesterday, the Fourth Circuit affirmed a district court ruling that a Family Dollar store manager was an exempt executive under the FLSA and not entitled to overtime in addition to salary:

Even though the record shows that as a store manager, Grace was required to perform the full range of tasks necessary for the successful operation of a store, including nonexecutive tasks, she nonetheless remained the highest level Family Dollar employee at the store, and her income depended on the success of her performance and the profits of the store. After applying the statutory and regulatory factors under 29 U.S.C. § 213(a)(1) to determine whether Grace was exempt as an executive, we conclude that she was exempt and therefore not entitled to overtime pay. Accordingly, we affirm the judgment of the district court.

Grace v. Family Dollar Stores, Inc., No. 09-2029 (4th Cir. March 22, 2011) (published).

Artfully pleaded WPCA case gets remanded to Boone County Circuit Court

2011-02-23T08:49:00.000-05:00

Davis v. Murdock, Civil Action Nos. 2:10-cv-01332, 2:10-cv-01333 (S.D.W.Va. Feb. 9, 2011) presents an interesting jurisdictional question.
The defendant employer removed a pair of W. Va. Wage Payment & Collection Act claims. The plaintiffs did a good job of artfully pleading their case to avoid a federal question:

The plaintiffs request compensation for all "unrecorded and uncompensated work required or permitted by Defendants." (Compl. ¶ 13.) Each plaintiff states that he is "only seeking payment of his wages at normal hourly rates," and specifies that he is not requesting overtime wages. (Id. ¶ 9.) The plaintiffs seek recovery only upon a showing that defendant's conduct was wrong under state law. At no point does either Complaint reference the FLSA. To the contrary, each plaintiff explicitly limits his cause of action to relief provided by the WPCA and disclaims any attempt to collect overtime pay or enforce any right provided by federal rather than state law.

Judge Goodwin distinguished this case from Anderson v. Sara Lee Corp., 508 F.3d 181, n. 10 (4th Cir. 2007) (discussing the possibility that the FLSA conflicted with and preempted claims under North Carolina common law, and noting that "[t]here is no question that express preemption and field preemption are inapposite to this dispute") and Westfall v. Kendle Int'l, CPU, LLC,No. 1:05-cv-0118, 2007 WL 486606, at *13-14 (S.D. W. Va. Feb. 15, 2007) (discussing potential causes of action under the WPCA and the FLSA for an employer's failure to compensate employees for overtime hours), both of which relied on federal law to provide a right to compensation (overtime).

But inevitably, if the “uncompensated time” puts the employee over 40 hours in a work week, a federal question will be raised because the FLSA will automatically kick in, and entitlement to overtime cannot be waived.

Not good enough for Judge Goodwin. He found there was no federal question and sent the case back to Boone County.

The WPCA does not create a substantive right to compensation – it just governs the timing of wage payments the employee is otherwise entitled to. A plaintiff must rely on state or federal law to create the “right” to the wages (breach of contract, FLSA, etc.) Where, as here, the plaintiffs just claim they were not paid for “straight time” worked, that’s a plain old state law breach of contract claim. Then, if they prove entitlement (“I did the work but didn’t get paid”), the WPCA will be implicated, and the employer will be liable for the untimely payment of those wages.

Fourth Circuit abandons last-served defendant rule in en banc decision

2011-01-28T18:31:00.001-05:00

In Barbour v. Int'l Union United Auto. Aerospace & Agric. Implement Workers of Am., No. 08-1740 (4th Cir. Jan. 27, 2011), the Fourth Circuit sitting en banc, has finally settled the question of how to calculate the 30-day removal time period in multiple defendant cases.

Astute readers may recall that the court decided this case in February 2010. However, the decision was vacated a few months later when a petition for rehearing was granted.

Now, the Fourth Circuit has reversed course and held that the last-served defendant rule is not the correct interpretation of our removal statutes.

Instead it has adopted what is commonly referred to as the "McKinney Intermediate Rule." Senior Judge Hamilton, writing for the majority, explained that

Like the First-Served Defendant Rule, the McKinney Intermediate Rule requires a notice of removal to be filed within the first-served defendant’s thirty-day window, but gives later-served defendants thirty days from the date they were served to join the notice of removal.

Judge Hamilton, incidentally, wrote the dissent in the February 2010 decision. His new 32-page majority opinion was not, however, unanimous. In a 36-page concurring opinion authored by Judge Agee, five judges dissented to the adoption of a First-Served Defendant Rule, of which the McKinney Intermediate Rule is a variety. The minority "believe[d] the last-served defendant rule represents the more accurate and appropriate reading of the terms of 28 U.S.C. § 1446(b)." Nevertheless, they concurred in the remand of the case on jurisdictional grounds.

So much for the last-served defendant rule. We hardly new ye.

West Virginia to Elect a New Governor in 2011

2011-01-18T16:26:00.000-05:00

The West Virginia Supreme Court of Appeals ruled this afternoon that Acting Governor Earl Ray Tomblin must "to forthwith issue a proclamation fixing a time for a new statewide election for governor consistent with W. Va. Const., art. VII, § 16 and W. Va. Code § 3-10-2 (1967)." SER W. Va. Citizen Action Group v. Earl Ray Tomblin, President of the W. Va. Senate, et al. AND SER Thornton Cooper v. Earl Ray Tomblin, et al., No. 10-4004 (W.Va. Supreme Court, 1/18/2011)

The unanimous opinion, authored by Justice Benjamin, contains the following new syllabus points:

7. Pursuant to W. Va. Const., art. VII, § 16, the period of time in which the duties of the governor shall be performed by a person who was not elected to the office of governor by the people in a statewide election shall not exceed one year.

8. Pursuant to W. Va. Const., art. VII, §16, whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new statewide election shall be held as soon as practicable and in compliance with the constitutional prescription that the office be assumed by an elected successor within one year of the date when the vacancy occurred.

9. The procedure established in the second paragraph of W. Va. Code § 3-10-2 regarding the holding of a new or special election to fill the vacancy in the office of governor is within the legislative prerogative and does not violate the State Constitution.

10. The Legislature may amend the procedure for providing for a new or special election if it deems it appropriate to do so; provided, however, any new procedure may not conflict with the Constitution which requires that all acts necessary to elect a governor shall be completed within one year of the vacancy in the office.

Now, let's all move on with life.

Sovereign immunity bars FMLA claims based on the self-care provision, Fourth Circuit rules

2010-11-10T17:48:00.005-05:00

When the United States Supreme Court ruled in Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), that Congress validly abrogated state sovereign immunity under one of the FMLA's family care provisions, it left wide open the possibility that claims under the self-care provision might be barred.

Today, the Fourth Circuit joined the Fifth, Sixth, Seventh and Tenth Circuits in holding that Congress did not validly abrogate states' sovereign immunity as to the FMLA's self-care provision. Coleman v. Maryland Court of Appeals, No. 09-1582 (4th Cir. Nov. 10, 2010) (published) (PDF).

The FMLA authorizes qualified employees to take up to 12 weeks of unpaid leave annually in five circumstances. Four of these circumstances concern caring for family members, and are sometimes collectively referred to as the "family care provisions." See 29 U.S.C. § 2612(a)(1)(A) (relating to an employee's leave for bearing and caring for a child), §2612(a)(1)(B) (relating to leave for adopting or providing foster care for a child), §2612(a)(1)(C) (relating to leave for caring for a spouse, child, or parent with a serious health condition); and § 2612(a)(1)(E) (relating to leave because of an exigency arising out of an employee’s spouse, child, or parent being called to active duty, or being notified of an impending call to such duty in the armed forces).

The fifth circumstance concerns employees taking leave for their own "serious health condition that makes [them] unable to perform the functions of [their] position" Id. at 2612(a)(1)(D). This is commonly referred to as the "self-care" provision.

The Coleman case involved a suit by a former employee of the Maryland Court of Appeals alleging that he was fired for requesting sick leave and because he is black. He sued under Title VII and the FMLA. The case was dismissed for failure to state a claim, and, as to the FMLA claim, because state sovereign immunity barred the claim.

Like the other circuit courts of appeal who have addressed the issue, the Fourth Circuit found that the Hibbs ruling of no sovereign immunity did not extend to claims brought under self-care provision of § 2612(a)(1)(D).

Generally, the Eleventh Amendment bars suit in federal court against an unconsenting state (and any governmental units that are arms of the state) unless Congress has abrogated the immunity. To abrogate the immunity, Congress must do two things: (1) it must unequivocally declare its intent to abrogate, and (2) it must act pursuant to a valid exercise of its power.

The Fourth Circuit had no doubt that the first element was satisfied here. See Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 726 (2003) (explaining that "[t]he clarity of Congress’ intent" to abrogate the states’ immunity to FMLA suits "is not fairly debatable"). But the second element was not satisfied.

The Supreme Court has held that while Congress cannot validly abrogate a state’s immunity from private suit under its Article I powers, it can do so under its Fourteenth Amendment, § 5 authority. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 364 (2001).

Hibbs held that the second element was satisfied as to one of the FMLA's family care provisions because Congress had enacted that provision in response to "the States’ record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits." Hibbs, 538 U.S. at 735; see also id. at 731 (describing the gender gap in state leave policies as being the result of "the pervasive sex-role stereotype that caring for family members is women’s work").

However, the Fourth Circuit (Chief Judge Traxler, writing for the unanimous panel) held that this reasoning does not extend to the self-care provision:

The Court’s analysis, focused as it is on the gender-related nature of § 2612(a)(1)(C), does not support the validity of Congress’s abrogation of sovereign immunity for violations of § 2612(a)(1)(D). And, the legislative history accompanying the FMLA shows that preventing gender discrimination was not a significant motivation for Congress in including the self-care provision; rather, Congress included that provision to attempt to alleviate the economic effect on employees and their families of job loss due to sickness and also to protect employees from being discriminated against because of their serious health problems.

The Court also rejected the argument that it was splitting hairs (my words) by singling out the self-care provision for different treatment. It noted that "the Hibbs Court took pains throughout its opinion to make clear that the case it was deciding concerned only the family-leave portion of the FMLA."

Accordingly, the court affirmed the district court's ruling that Eleventh Amendment immunity barred the FMLA claim against the State of Maryland.

Documents do not speak for themselves

2010-10-06T08:16:00.000-05:00

Federal Bankruptcy Judge Pat E. Morgenstern-Clarren (Northern District of Ohio) is tired of hearing the objection "the document speaks for itself." In a memorandum issued October 4, 2010 to "All attorneys with bankruptcy cases on my docket," Judge Morgenstern-Clarren advises counsel not to make such an objection in answers, responses to requests for admission, or in open court when a witness is asked to read a document aloud.

View PDFs within Chrome -- Fast!

2010-09-25T13:21:00.000-05:00

Viewing PDF files online is a drag, right? They take forever to load. Skip Adobe Reader with Google's Chrome browser. Try this:

In Chrome's address bar, type

chrome://plugins

Then, under Chrome PDF Viewer, click "enable."

The next time you view a PDF, it will load up right inside Chrome without using Adobe Reader! I have no idea why this feature is not enabled by default because it's a dream come true for anyone who spends a lot of time viewing PDFs online. Once you load up a PDF, you can drag the Chrome tab with the PDF in it, move it to your other monitor and continue browsing.

If you haven't used Google's Chrome browser, you need to download it and give it a try.

No immunity for WVU-Parkersburg in wage payment case

2010-09-17T08:00:00.001-05:00

The first employment opinion of the Fall term of the West Virginia Supreme Court was issued yesterday. In Beichler v. West Va. Univ. at Parkersburg, No. 35435 (September 16, 2010) a terminated professor sued the university for unpaid wages. The circuit court dismissed the complaint for failure to exhaust available administrative remedies and also based on sovereign immunity. The state supreme court reversed and remanded on both grounds. Here are the new syllabus points:

3. Pursuant to W.Va. Code, 21-5-12(a) (1975), a person whose wages have not been paid in accord with the West Virginia Wage Payment and Collection Act may initiate a claim for the unpaid wages either through the administrative remedies provided under the Act or by filing a complaint for the unpaid wages directly in circuit court.

5. Article VI, § 35, of the Constitution of West Virginia, concerning this State’s sovereign immunity, does not bar the claim of a State employee for unpaid wages asserted under the West Virginia Wage Payment and Collection Act, W.Va. Code, 21-5-1 (1987), et seq., whether the claim is initiated through the administrative remedies provided under the Wage Payment and Collection Act or initiated by filing a complaint for the unpaid wages directly in circuit court.

Nothing too surprising in this decision.

Undisclosed MySpace "friendship" warrants reversal of conviction

2010-06-07T08:20:00.000-05:00

In State v. Dellinger, No. 3573 (W.Va. Supr. Ct. June 3, 2010), the West Virginia Supreme Court reversed a felony conviction of a Braxton County Deputy Sheriff due to a juror's "complete lack of candor" during voir dire. The juror and the defendant were MySpace "friends," but hardly knew each other. Still, the Court found that the juror should have disclosed the relationship, and also some other tenuous relationships she had with two witnesses in the case.

The Court also noted that, during the trial, the juror had posted on her MySpace page that she had "just returned from court" and was headed back there in the morning, noting that her mood was "blah." Although this incident of blogging during trial was rather benign, in footnote 11, the Court suggested that trial courts issue instructions to help deter jurors from using technology and social media for improper purposes during trial.

It recommended a model jury instruction endorsed by the Committee on Court Administration and Case Management of the Judicial Conference of the United States that tells jurors not to research the case, or blog about it, among other things.

It's clear that voir dire and jury instructions need to catch up with technology.

Privilege Trumps Company E-Mail Surveillance

2010-04-02T07:02:00.001-05:00

Privilege Trumps Company E-Mail Surveillance: "a plaintiff in an employment discrimination suit against her employer had a reasonable expectation that e-mails to and from her attorney on her personal Yahoo account would be private, although transmitted via a company-owned laptop." Stengart v. Loving Care Agency Inc., (N.J. Supreme Court, Mar. 30, 2010) (PDF). (source: Law.com)

Got milk? Lactation stations are coming to a workplace near you

2010-04-01T11:41:00.000-05:00

Over at the BR Employment Law Blog, I've posted regarding the new FLSA amendment contained in the health care bill that requires employers to provide work breaks to nursing mothers so they can express their breast milk. It also requires employers to provide, for lack of a better word, "lactation stations" outside of bathrooms to accomplish this task.

This amendment is unusual for several reasons.

It marks the first time Congress has attempted to require any sort of breaks for employees under the FLSA.
It is the first FLSA provision requiring physical modifications of workplaces; and
It introduces an "undue hardship" exception that one might expect to see in disability-related legislation.

No guidance has been offered by the DOL on how to comply with this new law. But, if you're an employer wondering how you can set up a lactation station or a lactation program, check out this article: How to Establish a Workplace Lactation Program.

Fourth Circuit holds 72 hour rule not applicable to employee's post-termination commissions

2010-03-12T18:12:00.000-05:00

Over at my firm's weblog, the BR Employment Law Blog, I posted about a recent unpublished Fourth Circuit opinion holding that the West Virginia Wage Payment and Collection Act's 72 hour rule does not apply to commissions "earned" by an employee after he is discharged. Although unpublished, the opinion provides a detailed analysis on issues that have not been directly addressed by the West Virginia Supreme Court of Appeals.

Fourth Circuit adopts "last served defendant" rule in removal cases

2010-02-07T08:59:00.002-05:00

Note: A petition for rehearing in this case was granted, and the Fourth Circuit has issued an en banc opinion that nullifies this one.

In Barbour v. Int'l Union United Auto. Aerospace & Agric. Implement Workers of Am., No. 08-1740 (4th Cir. Feb. 4, 2010), the Fourth Circuit finally settled the question of how to calculate the 30-day removal time period in multiple defendant cases. Following the holdings of the Sixth, Eighth and Eleventh Circuits, the court held that:

in cases involving multiple defendants, each defendant, once served with formal process, has thirty days to file a notice of removal pursuant to 28 U.S.C. § 1446(b) in which earlier-served defendants may join regardless of whether they have previously filed a notice of removal.

In so holding, the Court rejected as dictum footnote 3 of McKinney v. Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924 (4th Cir. 1992) which explained that where the first-served defendant "does not petition for removal within 30 days, the case may not be removed." 955 F.2d at 926 n.3. The court found the rule to be inconsistent with more recent Supreme Court precedent. In Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999) the Supreme Court was asked to determine "whether the named defendant must be officially summoned to appear in the action before the time to remove [under 28 U.S.C. § 1446(b)] begins to run." Murphy Brothers, 526 U.S. at 347. The Court held "that a named defendant’s time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, ‘through service or otherwise,’ after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service." Id. at 347-48.

Applying the new rule in this three-defendant case, the court found timely the parties' joint notice of removal, which was filed by all three defendants after two defendants were served, even though it was filed more than 30 days after the first defendant was served.

Senior Judge Hamilton disagreed, and offered in his pointed dissenting opinion that McKinney was binding precedent, and that Murphy Brothers was not applicable because it did not involve a multiple defendants.

Proof that Steve Jobs reads this blog

2010-01-28T09:27:00.000-05:00

Okay, maybe that's a little extreme, but Apple's new iPad announced yesterday comes darn close to the device I dreamed about in 2003 in this blog post.

In my 2003 post, I outlined my dream for a wireless device that lawyers could carry with them to display and share their digital documents. These were my specifications

The device would look sort of like the duty rosters on Star Trek the Next Generation except a little bigger-- about 1/8" to 1/4" in thickness and slightly larger than an 8 1/2" x 11" piece of paper (about the size of a basic clipboard without the clip). It would have a few very simple control buttons (hopefully flat) in the nature of an e-book reader (a power button, arrow buttons to turn pages, etc). Document images could be loaded onto the unit instantly and wirelessly from a notebook PC, a PDA, computer or other tablet. Tablets could be synchronized by the users, so if say four people (you, a judge, a witness and opposing counsel) wanted to look at the same document, you could do that with one person controlling the displays of the other three. The only purpose of this unit is to display and share documents.

That's pretty close to what Apple CEO Steve Jobs demonstrated yesterday. The iPad is not trying to be a full-fledged computer. It has an instant-on feature and a beautiful display. Essentially, the iPad is a big iPod Touch. It has a touch screen that will allow people to surf the web wirelessly, view their photos, videos and other documents. This device has tons of potential for legal practitioners. If it can be integrated with a document management system so that users can take their files with them (to court, to depositions and elsewhere) it would be a revolution. I would love to see an app written that handles stacks of documents like the stacks of pictures in the photo app. If PDFs could be maniupulated this easily, lawyers would flock to this device.

So my new challenge is to the app developers -- WRITE THAT APP!

W.Va. drops a spot, still the No. 2 'Judicial Hellhole'

2009-12-15T12:21:00.000-05:00

W.Va. drops a spot, still the No. 2 'Judicial Hellhole':

"WASHINGTON -- The American Tort Reform Foundation was less critical of West Virginia's legal system this year, but still ranked it as the No. 2 Judicial Hellhole in the country in its annual report released Tuesday. ...."

Judges cannot be "Facebook friends" with lawyers

2009-12-11T12:54:00.000-05:00

Facebook Friendship? It’s Complicated for Judges and Lawyers - NYTimes.com: "Judges and lawyers in Florida can no longer be Facebook friends. In a recent opinion, the state’s Judicial Ethics Advisory Committee decided it was time to set limits on judicial behavior online. ..."

W.Va. Supreme Court finds in favor of A.T. Massey Coal Co. in closely-watched case

2009-11-12T16:56:00.002-05:00

This time without the participation of Justice Brent Benjamin, the West Virginia Supreme Court of Appeals ruled again today that the Circuit Court of Boone County erred in denying A.T. Massey Coal Company's motion to dismiss, thereby nullifying the 50 million dollar jury verdict in favor of the plaintiffs. Hugh M. Caperton v. A.T. Massey Coal Company, Inc., No. 33350 (W.Va. Supreme Court, Nov. 12, 2009).

I've created a merge document comparing the new opinion with the 2008 opinion. As you can see, the res judicata issue was dropped from the new opinion, and Justice Davis rested the opinion solely on the forum selection clause. Former syllabus points 10 and 11 in the 2008 opinion have been replaced by new syllabus point 8 in the 2009 opinion.

The combined procedural and factual history section was divided out into 2 separate sections in the 2009 opinion, and a new section was added to discuss the Court's grounds for denying Capterton's motion seeking "affirmance of judgment or, in the alternative, for reconsideration and denial of the petition for appeal" on the grounds that the disqualification of Benjamin created a 2-2 tie, requiring the jury verdict to be affirmed.

Comparison of 2008 and 2009 Massey Opinions -

Filing of Sealed Documents and Plea Agreements in Northern District of West Virginia

2009-11-09T15:54:00.000-05:00

I received the below notice by e-mail today:

The U.S. District Court for the Northern District of West Virginia has made some recent changes to sealed functionality. The outline below discusses these changes:

1. Sealing a Case or a Document Requires a Court Order
Pursuant to LR Gen P 6.01, Clerks office employees will seal documents or cases only on order of the Court. Deputy Clerks will not seal a document or a case based only on the request of an attorney.

2. Consistency in Sealing Documents
For all sealed documents, both the docket text and the document will be sealed, and it will not generate a NEF. Clerks Office staff will provide copies via email or regular mail to each appropriate recipient.

3. Proposed Plea Agreements
The Court no longer requires Proposed Plea Agreements to be filed in CM/ECF. Instead, provide the Proposed Plea Agreement directly to the respective judge.

4. Plea Agreements: Sealed
Until further notice, Plea Agreements will be sealed upon filing.

5. Documents Related to Plea Agreements
All documents related to Plea Agreements, including the signed Plea Agreement, the Waiver of Article III Judge, the entries regarding the plea hearings, and the resulting minute entry, shall be sealed.

If you have any questions about these changes, please feel free to contact Bill Hinerman, Chief Deputy Clerk, at bill_hinerman@wvnd.uscourts.gov or 304-622-8565.

Amendments to Federal Rules of Civil Procedure Take Effect Next Month

2009-11-02T10:31:00.000-05:00

Hat tip to the West Virginia Business Litigation Blog:

Amendments to Federal Rules of Civil Procedure Take Effect Next Month:

Regardless of your area of specialty, if you practice in federal court, you will be affected by amendments to the Federal Rules of Civil Procedure that take effect on December 1, 2009. Of particular importance are changes to calculating deadlines under Rule 6. My thanks to Mack Sperling at the North Carolina Business Litigation Report for his thorough discussion of the amendments in this post.

House to Begin Streaming Sessions Online

2009-10-25T21:28:00.000-05:00

House to Begin Streaming Sessions Online: "CHARLESTON - House Speaker Rick Thompson said the House of Delegates will begin streaming the audio of House floor sessions and committee meetings on the Legislature’s web site during the 2010 regular session, which convenes in January."

Arbitration agreement enforceable despite being contract of adhesion, W.Va. Supreme Court rules

2009-10-15T07:52:00.000-05:00

An arbitration agreement requiring the parties to arbitrate a sexual harassment suit was found to be enforceable, despite being a contract of adhesion, the West Virginia Supreme Court ruled in State ex rel. Clites v. Clawges, No. 34887 (W.Va. Supr. Ct. Oct. 13, 2009).

First., the Court found that it was not preempted by the Federal Arbitration Act (FAA) from "giving judicial review to determine whether the Agreement at issue is valid and enforceable under our state contract law. "

Then, "having fully considered the Agreement" the Court found it to be a contract of adhesion:

The entire Agreement is boiler-plate language that was not subject to negotiation and there is no contention in the record that the Petitioner had any role or part in negotiating the terms of the Agreement. In State ex rel. Saylor v. Wilkes, 216 W.Va. 766, 773, 613 S.E.2d 914, 921 (2005), we found a similar arbitration agreement to be a contract of adhesion, noting that it was a “[s]tandardized contract form offered . . . on essentially [a] 'take it or leave it' basis . . . [leaving the] weaker party . . . no realistic choice as to its terms.”

However, the analysis does not end there:

the fact that the Agreement is a contract of adhesion does not necessarily mean that it is also invalid .... Having determined that the Agreement is a contract of adhesion, we turn to the issue of whether the Agreement is “unconscionable or was thrust upon [the Petitioner] because [she] was unwary and taken advantage of[.]” Syllabus Point 3, in part, Board of Education of the County of Berkeley v. W. Harley Miller, Inc. We have previously held that “A determination of unconscionability must focus on the relative positions of the parties, the adequacy of the bargaining position, the meaningful alternatives available to the plaintiff, and 'the existence of unfair terms in the contract.'” Syllabus Point 4, Art's Flower Shop, Inc. v. Chesapeake and Potomac Telephone Company of West Virginia, Inc., 186 W.Va. 613, 413 S.E.2d 670 (1991).

The Court ruled that the Agreement was not unconscionable. The contract, as written, stated that each “party shall bear its own fees and costs incurred in connection with the arbitration” and that the arbitrator “shall have the discretion to award fees and costs to the prevailing party in accordance with prevailing law.” However, the circuit court noted that TeleTech had “asserted and stipulated through affidavit that the arbitration will take place in Morgantown, West Virginia, and that TeleTech will pay for all costs of expenses that would not be incurred by the Plaintiff in court, including the fees of the arbitrator[,] the costs of the hearing room, and a stenographer.” This turned out to be a key stipulation for the employer. In finding that the agreement was not unconscionable, the Court noted that it required arbitration to take place where the employee worked and there was no proof in the record that the employee was exposed to exorbitant costs as a result of the agreement "as TeleTech agreed to pay all costs associated with the Arbitration in excess of what the Petitioner would have been required to pay to maintain her civil action in the circuit court."

The Court refused to issue a writ prohibiting Judge Clawges from sending the case to arbitration.

So, even if your arbitration agreement, as written, is unconscionable, there may still be hope for compelling arbitration if the employer is willing to stipulate that it will absorb most or all of the costs of arbitration.

How do you like your pepperoni roll?

2009-09-30T11:24:00.006-05:00

Let's take a break from the law for a minute. My friend Andy Blake, an Elkins native who now serves as City Attorney for the City of Ranson, knows how I love pepperoni rolls, and forwarded me this article from the New York Times called "Fast Food Even Before Fast Food." It chronicles the "role" of pepperoni rolls in North Central West Virginia, where I grew up.

The article avoids the "stick vs. slices" debate, and jumps straight into condiments. Some people like them with red sauce, some with chili, some just with cheese. I like mine sliced open with provolone cheese and Oliverio's peppers. So how do you like your pepperoni roll? Post a comment and let the world know!

Being called a "bitch" while on leave of absence does not create a hostile environment

2009-08-22T07:36:00.012-05:00

A woman who was called a "bitch" by coworkers while she was on a leave of absence could not make out a claim for hostile environment sexual harassment under Title VII, the Fourth Circuit held in Pueschel v. Peters, No. 08-1351 (4th Cir. Aug. 18, 2009) (PDF).

On April 5, 1994, while a claim Pueschel filed with the EEOC in 1992 was being processed, Pueschel alleges that she suffered a stress-related episode at work that caused her to leave work permanently. The FAA placed her on leave without pay status where she remained until her termination in January 1999 for medical inability to perform her duties.

She claims that while she was on leave, her coworkers referred to her behind her back as a "bitch," "useless bitch" and "f-ing bitch." She sued the FAA for hostile environment sexual harassment under Title VII, but the District Court dismissed the claim on summary judgment.

Without even reaching the question of whether the name-calling was severe and pervasive, the Fourth Circuit found no actionable sexual harassment:

At bottom, a claimant must show that she is subject to "an abusive working environment." Harris, 510 U.S. at 22 (emphasis added) (internal quotations omitted). Pueschel has not met this requirement because she cannot demonstrate that she was part of the working environment that she alleges was abusive. Pueschel went on LWOP in 1994. The incidents that she alleges created a hostile work environment occurred in 1997 and 1998. Thus, even if the offensive conduct was severe or pervasive, Pueschel cannot prevail because the abusive work environment, based upon her allegations, did not exist until three years after she left the workplace.

Thus, the Fourth Circuit affirmed the dismissal of her sexual harassment claim.
Pueschel v. Peters, No. 08-1351 (4th Cir. Aug. 18, 2009)

Non-party deponent's identity cannot be hidden from litigants, Fourth Circuit rules

2009-08-13T21:17:00.002-05:00

The Fourth Circuit issued an interesting opinion today affirming a protective order issued by the District of Maryland that allows the identity of an anonymous deponent to be revealed to the litigants in the case. Lefkoe v. Jos. A. Bank Clothiers, Inc., No. 08-2059 (4th Cir. Aug. 13, 2009) (PDF).

The primary suit between Lefkoe and Jos. A. Bank is a securities fraud case in which stockholders of the company claim that Jos. A. Bank and insiders issued a series of false and misleading statements about the company’s earnings, profits, and inventory and thereby allowed the insiders to profit from inflated stock prices. That's the boring part.

The interesting part involves the deposition of an anonymous tipster who, through his legal counsel, had written a letter in March 2006 to the company's auditor questioning the integrity of the company's financial statements. The complaint caused a delay in the release of the company's financial statement, which in turn caused a dip in the stock price.

The anonymous tipster was, of course, a person of interest in this suit. So, the defendant notice a Rule 30(b)(6) corporate deposition of the Massachusetts law firm that wrote the letter on his or her behalf to find out the identity of the "Doe Client." Although the suit was pending in the District of Maryland, the defendant caused a subpoena to be issued from the District of Massachusetts under Rule 45.

The Doe Client's law firm moved to quash the subpoena in the District of Massachusetts, claiming it "is punitive, seeks irrelevant information, and violates [the Doe] [C]lient’s right of anonymity as protected by the First [A]mendment and federal common law." The Massachusetts judge denied the motion to quash and allowed a two-hour deposition to be taken directly under his supervision. He also ordered that the deposition be sealed and directed counsel not to disclose the identity of the Doe Client to anyone "absent an order of the judge presiding in the lawsuit" (in the District of Maryland).

Instead of producing a corporate designee on the day of the deposition, the law firm produced the Doe Client "itself." (The opinion refers to the Doe Client as an "it," which I found a little amusing and awkward--why not say "him or her"?) Anyway, the deposition was taken and the lawyers were sworn to secrecy about Doe Client's identity.

Jos. A. Bank’s outside counsel then filed a motion in the Maryland district court to unseal the deposition of the Doe Client and permit further discovery from the Doe Client. Despite the Doe Client’s opposition to Jos. A. Bank’s motion, the Maryland district court modified the protective order by making the Doe Client’s identity "accessible to parties to this litigation." From the district court’s order, the Doe Client filed an interlocutory appeal, invoking the collateral order doctrine.

On appeal, the Doe Client argued (1) that the Maryland District Court overstepped its authority when it modified the Massachusetts District Court's protective order, and (2) that his or her anonymity should be protected under the First Amendment.

The Fourth Circuit rejected both arguments and affirmed. It held that "When the Maryland district court expanded disclosure of the Doe Client’s identity to the parties to this litigation, it did not overstep its authority under the Federal Rules of Civil Procedure, nor did it overstep anything in the Massachusetts court’s protective order."

Second, it held that because the Doe Client's speech was commercial speech as opposed to political or literary, "the Doe Client’s claimed First Amendment right to anonymity is subject to a substantial governmental interest in disclosure so long as disclosure advances that interest and goes no further than reasonably necessary."

Incidentally, Jos. A. Bank "learned that the Doe Client is a known short seller and that short selling ... as opposed to Jos. A. Bank’s fraud or malfeasance, may have been a cause of the drop in the price of Jos. A. Bank stock."

Lefkoe v. Jos. A. Bank Clothiers, Inc., No. 08-2059 (4th Cir. Aug. 13, 2009)

Thinking about a netbook?

2009-08-13T07:06:00.003-05:00

Two articles today from legal bloggers reviewing "netbooks"--those ultralight notebook computers designed to give you just what you need when you are on the road.

Brett Burney reviews the Dell Mini 9 at LLRX: Burney's Legal Tech Reviews: The Dell Mini 9 and the Averatec All-in-one PC.

Ross Kodner offers a wealth of advice at Ross Ipsa Loquitur: Debunking Netbook Myths and Misconceptions – The Straight NetScoop.

I wish someone would design a netbook that has an "instant on" feature so that you can open it up and just start typing in a word processing application within a few seconds. Most of the netbooks appear to be running Windows XP or Ubuntu, which both require a minute or so of boot-up time. There are some "instant on" or "quick boot" technologies being developed, but it appears they are all geared for quickly accessing photos, music and the web. If you don't have web access for something like Google Docs, you need to have a "notepad" type application to do any note taking.

Does anyone know of a netbook that has an "instant on" feature that can serve up a non-web based word processor?

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

2009-07-21T16:53:00.005-05:00

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)

Obama nominates Judge Irene Berger for federal bench

2009-07-09T08:04:00.003-05:00

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.

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

2009-07-07T15:03:00.004-05:00

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.

SUMMARY

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

Fourth Circuit affirms injunction to allow miners to continue working

2009-07-03T13:38:00.003-05:00

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)

W.Va. Supreme Court finds use of "n" word not "unwelcome"

2009-06-23T08:18:00.005-05:00

Recipients of workplace harassment are not always innocent of engaging in similar conduct themselves. Sometimes, they invite, and even incite the harassment. That was found to be the case in Erps v. W. Va. Human Rights Comm., No. 34262 (W.Va. Supreme Court, June 22, 2009).

The respondents, Sue J. Erps and William G. Erps, d/b/a Improvements Unlimited were found by the Human Rights Commission to be liable to their employee, Victor Peoples, for claims of hostile work environment and retaliatory discharge arising from a single June 16, 2004, workplace incident. The HRC ordered the Respondents to pay the Commission's costs in the amount of $1,854.06, and to pay Peoples $24,085.30 in lost wages, $3,813.51 in interest, and the statutory maximum $5,000.00 in incidental damages.

Factual Background

The incident occurred between Victor Peoples, a black employee, and Wayne Bragg, his white coworker. Although there had been no prior tension, arguments or problems between the two, Mr. Peoples picked on Mr. Bragg the morning of June 16, calling him names such as “white trash” and “honky.” According to Mr. Bragg, the racially-charged name calling angered him. Mr. Peoples continued his goading of Mr. Bragg by making fun of the way he talked. At some point, Mr. Peoples criticzed the work Mr. Bragg was doing, and Bragg responded by saying, "You say another word I'll cut your f***ing head off with this shovel, n*****."

The men approached their supervisor, who ordered them back to work in separate locations. Peoples was not satisfied with the response and continued to ask him what he was going to do about Bragg's comment. The supervisor replied, “That's done, over, get back to work.” When Peoples persisted in his demand for immediate action, he was told to get back to work or he was fired. Peoples would not go back to work and he was fired.

Peoples filed a complaint with the West Virginia Human Rights Commission alleging race discrimination and retaliation. After a public hearing, the ALJ entered an order finding the Erps and Improvements Unlimited liable for fostering a hostile work environment, retaliatory discharge for engaging in a protected activity, i.e., complaining about Mr. Braggs' comment which was characterized in the order as sufficiently severe to constitute racial harassment, and retaliation for filing a complaint with the Commission. The HRC ruled in favor of Mr. Peoples, and the Respondents appealed.

Supreme Court Reverses In Part

On appeal, the West Virginia Supreme Court reversed the HRC's monetary damages award, finding that the HRC erred in imposing liability for a racially hostile work environment, and for finding a retaliatory discharge. It affirmed the HRC's finding of post-discharge retaliation, but the HRC had not awarded any damages for that violation, and the Court prohibited it from doing so because the issue was not appealed by Peoples.

Clarification of "Unwelcomeness"

The Court noted that it had not previously addressed what constitutes "unwelcome" conduct in the workplace. "In light of the Commission's findings relative to Mr. Peoples' actions precipitating Mr. Bragg's comments on June 16, 2004, we find it necessary to address this element of a hostile work environment claim further."

In reviewing the racial harassment incident, the Court was careful to note that although the use of the "n" word is deplorable, it does not automatically create a hostile work enviroment. Citing with approval an Oregon Court of Appeals decision in Garcez v. Freightliner Corporation, 72 P.3d 78 (Ore. Ct. App. 2003) (Title VII), the Court noted that "'[M]ere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee would not affect the conditions of employment to [a] sufficiently significant degree to violate Title VII." The court will not assume that even use of the "n" word is unwelcome. Instead, the Court instructed trial coourts to inquire into the "totality of the circumstances, including examination of the plaintiff's own actions."

In new syllabus points 5 and 6, the Court set out a new standard to determine "unwelcomeness" of alleged harassment:

5. In order to constitute harassment and satisfy the first prong of a hostile work environment claim as set forth in syllabus point 2 of Fairmont Specialty Services v. West Virginia Human Rights Commission, 206 W. Va. 86, 522 S.E.2d 180 (1999), the subject conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.

6. When a plaintiff bringing a hostile work environment claim pursuant to the standards enunciated in syllabus point 2 of Fairmont Specialty Services v. West
Virginia Human Rights Commission, 206 W. Va. 86, 522 S.E.2d 180 (1999), has solicited, incited or participated in the subject offensive conduct, the plaintiff must introduce evidence indicating (1) that he or she ultimately informed the involved co-workers and/or supervisors that future instances of such conduct would be unwelcome, and (2) that conduct thereafter continued. Where such evidence is produced, a question of fact is created as to whether or not the conduct was unwelcome.

The Court concluded that "[u]nder the established law outlined above, the Commission's order holding the appellants liable for a racially hostile work environment cannot stand. Mr. Peoples failed, as a matter of law, to satisfy the first element of a hostile work environment claim by failing to put forth evidence from which a reasonable fact-finder could conclude that the subject conduct was unwelcome."

Retaliatory Discharge

The Court went on to conclude that the HRC was "clearly wrong" in finding that Mr. Peoples was terminated in retaliation for complaining about the harassment. Based on the evidence presented at the public hearing, the Court found that even if Mr. Peoples were able to make out a prima facie case of retaliatory discharge, he presented no evidence that the employer's proffered reason for discharging him (that he refused to get back to work) was pretextual.

Retaliation for Filing His Complaint

The HRC had also found that Improvements Unlimited subjected Mr. Peoples to retaliation for filing a complaint with the Commission through a series of actions such as following him, staring at him and offering him money to dissuade him from pursuing his complaint. (Some details of the conduct appear in footnotes 19 and 20.)

The Court concluded that "[b]ecause the findings on this issue are made upon credibility determinations in light of competing testimony, they are to be afforded deference. Accordingly, we affirm the finding that Mr. Peoples was intimidated and retaliated against for filing his complaint with the Commission." However, because Peoples was not awarded monetary damages for this alleged retaliation and intimidation and did not appeal this aspect of the order below, he was not entitled any monetary award.

The Court specifically ordered that "[t]he Commission may not, hereafter, award monetary damages for this claim because monetary damages were not previously awarded for this specific retaliation claim in the appealed orders and no exception to this lack of monetary damages being awarded on this issue was taken by Mr. Peoples." This resulted in an almost complete victory for the employer.

Justice Benjamin's well-written opinion highlights the importance of the plaintiff's own conduct in contributing to workplace harassment. The HRC and the trial courts cannot simply ignore the Plaintiff's own racially hostile conduct.

New feature: To see a word diagram of this case, click here. Wordle is a service that automatically generates a "word cloud" that gives greater prominence to words that appear more frequently in the source text. It's an interesting way to look at the importance of various issues in case authorities.

W.Va. Lawyer Disciplinary Board releases legal ethics opinion on metadata

2009-06-16T07:04:00.003-05:00

On June 10, the West Virginia Bar released its ethics opinion on What is Metadata and Why Should Lawyers Be Cautious? Legal Ethics Opinion 2009-01 (PDF).

The opinion addresses two problems: (1) whether an attorney has a duty to remove confidential metadata from documents he or she is transmitting to others, and (2) whether an attorney who receives inadvertently produced metadata has a duty not to view it. The Board concluded:

The Board finds that there is a burden on an attorney to take reasonable steps to protect metadata in transmitted documents, and there is a burden on a lawyer receiving inadvertently provided metadata to consult with the sender and abide by the sender's instructions before reviewing such metadata.

The opinion suggests a few ways to remove metadata from documents being produced to third parties, most of which involve making an image or copy of the document and faxing, scanning or mailing it. Metadata removal tools are much more efficient.

It should be noted that even PDFs contain metadata. However, because fewer attorneys work with PDFs for drafting and revising documents, they rarely contain any confidential metadata. However, as more and more attorneys use the full version of Adobe Acrobat to modify PDFs with highlighting, comments, and notes, that will change. Many metadata removal tools that automatically scrub outgoing file attachments will ignore PDF attachments. They shouldn't. If you are producing scanned PDFs that you have marked up with electronic sticky notes, be sure to use the Examine Document feature in Acrobat 8 or later to remove the notes and comments. The process can be run in batch mode to remove metadata from multiple documents at once.

The opinion is careful to place a burden on receiving lawyers to consult with opposing counsel about metadata they receive where the receiving lawyer has "actual knowledge that metadata was inadvertently sent." Short of the sender telling you he inadvertently sent the metadata, that may not always be clear. The opinion simply says that "it's always safer to notify the sender before searching electronic documents for metadata."

What is Metadata and Why Should Lawyers be Cautious? - W.Va. Legal Ethics Opinion 2009-01

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3d Circuit clarifies definition of "management-level"

2009-06-10T07:07:00.004-05:00

Sexual harassment cases often involve employees complaining of harassment to low-level supervisors. When no remedial action results, the employee claims the employer "knew or should have known" of the harassment for months, but did nothing about it.

Courts generally hold that an employer "knew or should have known" about workplace sexual harassment where management level employees had actual or constructive knowledge about the existence of a sexually hostile environment. See, e.g. Katz v. Dole, 709 F.2d 251, 255 (4th Cir. 1983). The question then becomes, who is a "management level" employee?

Yesterday, the the Third Circuit, in a well-reasoned opinion, added clarity to this issue. In Huston v. Procter & Gamble Paper Products Corp., No. 07-2799 (June 8, 2009) (PDF), the plaintiff claimed she was sexually harassed by co-workers. She argued that P&G knew about the harassment because she complained to two line supervisors who lacked the power to hire and fire employees, or discipline them. They did hold "supervisory" positions of process coach and machine leader.

The Third Circuit agreed with the district court that the two employees were not management-level employees. In doing so, it applied ordinary agency law principles from the Restatement (Third) of Agency:

For purposes of determining a principal’s legal relations with a third party, notice of a fact that an agent knows or has reason to know is imputed to the principal if knowledge of the fact is material to the agent’s duties to the principal, unless the agent (a) acts adversely to the principal as statedin § 5.04, or (b) is subject to a duty to another not to disclose the fact to the principal. Restatement (Third) of Agency § 5.03 (2006) (emphasis added).

Based on this, the court concluded that

an employee’s knowledge of allegations of coworker sexual harassment may typically be imputed to the employer in two circumstances: first, where the employee is sufficiently senior in the employer’s governing hierarchy, or otherwise in a position of administrative responsibility over employees under him, such as a departmental or plant manager, so that such knowledge is important to the employee’s general managerial duties.
* * *
Second, an employee’s knowledge of sexual harassment will be imputed to the employer where the employee is specifically employed to deal with sexual harassment. Typically such an employee will be part of the employer’s human resources, personnel, or employee relations group or department.
* * *
Thus, in requiring that a “management level” employee have knowledge of allegations of co-worker sexual harassment as a pre-requisite to imputing that knowledge to the employer, we require that this knowledge have reached an employee in the governing body of the entity, as opposed to merely a supervisory employee in the labor force. We clarify that mere supervisory authority over the performance of work assignments by other co-workers is not, by itself, sufficient to qualify an employee for management level status. It is not uncommon for non-managerial co-workers to be organized into groups where one worker is designated to oversee the performance by others of a specific task. But to the extent that such a supervisor does not have a mandate generally to regulate the workplace environment, that supervisor does not qualify as management level.

Employees often claim that their complaint of harassment to their "immediate supervisor" suffices as a complaint to "management" because that supervisor, even though he may be only a line supervisor, has a duty to report the harassment up the chain to the top-level managers. This opinion clarifies that reporting sexual harassment to "any old supervisor" is insufficient to impute liability to the company in hostile environment sexual harassment cases.

U.S. Supreme Court holds Benjamin should have recused himself

2009-06-08T21:01:00.003-05:00

The United States Supreme Court held today by a 5-4 vote in Caperton v. A.T. Massey Coal Co., No. 08-22 (U.S. Supr. Ct. June 8, 2009) that the Due Process Clause required Justice Brent Benjamin to recuse himself from the case shortly after the defendant's CEO spent millions of dollars to help Benjamin get elected to the West Virginia Supreme Court of Appeals. The court applied a "probability of actual bias" test and found that on the "extreme facts" presented by this case, "the probability of actual bias rises to an unconstitutional level."

In his dissenting opinion, the Chief Justice wrote that "[t]he Court’s new 'rule' provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case." Justices Scalia, Thomas and Alito joined in the dissent. Justice Scalia wrote his own separate dissent.

Regardless of how you might feel about the facts of this case, everyone who practices in a state with elected judges is wondering this evening whether the floodgates have just been opened for recusal motions based on campaign contributions. The "40 questions" posed by Justice Roberts in his dissenting opinion raise many good questions about the "probability of bias" standard and how far it might stretch.
Caperton v. A.T. Massey Coal Co. (S.Ct. 6.8.2009) Caperton v. A.T. Massey Coal Co. (S.Ct. 6.8.2009) byobyo

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Twombly two

2009-05-22T12:11:00.002-05:00

On May 18, the Supreme Court decided in Ashcroft v. Iqbal, 566 U.S. __, No. 07-1015 (U.S. Supr. Ct., May 18, 2009) that the pleading standard announced in Bell Atlantic v. Twombly applies not only to antitrust cases, but to all civil cases where Rule 8 governs:

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” “[D]etailed factual allegations” are not required, Twombly, 550 U. S., at 555, but the Rule does call for sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face,” id., at 570. A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556. Two working principles underlie Twombly. First, the tenet that a court must accept a complaint’s allegations as true is inapplicable to thread bare recitals of a cause of action’s elements, supported by mere conclusory statements. Id., at 555. Second, determining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense. Id., at 556. A court considering a motion to dismiss may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
So will the West Virginia Supreme Court apply the same common-sense standard? Who knows. They have avoided the question three times since Twombly was decided. (See Hoover v. Moran, 662 S.E.2d 711 at n.3 (W.Va. 2008); In Re Flood Litigation Coal River Watershed, 668 S.E.2d 203 at n.10 (W.Va. 2008); Highmark W. Va. v. Jamie, M.D. 655 S.E.2d 509 at n.4 (W.Va. 2007)).

Ashcroft v. Iqbal, 566 U.S. __, No. 07-1015 (U.S. Supr. Ct., May 18, 2009)

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PDF Exhibit Stamps - Keeping them in place

2009-05-15T07:54:00.004-05:00

If you have the full version of Adobe Acrobat (Standard or Pro), you have hopefully downloaded and installed Rick Borstein's terrific PDF Exhibit Stamp set. This is a custom PDF stamp that allows you to stamp an "exhibit sticker" on your PDFs.

But once the exhibit stamp is applied, how do you keep the stamp in place?

You must flatten your document. In other words, permanently affix the stamps to the document so that they are inseparable. Rick suggests two methods for accomplishing this. One is specific to Acrobat 9 Pro, and the other method is to "refry" the document by printing it to the AdobePDF print driver. But there is yet another way that I like better. Install this free flattener tool.

The flattener tool is a javascript that enables the flatten feature in Acrobat. I use Acrobat 8 Pro, and it works great. I believe it works with other earlier versions as well. All you have to do is copy the flatten.js file to your Acrobat JavaScripts directory and restart Acrobat. It will add to your "Document" menu two more commands: "Flatten page" (which flattens the current page) and "Flatten document" (which flattens all stamps on your document).

If you are e-filing your stamped PDFs with the Court, you will want to use the flatten tool before e-filing. Some courts will strip e-filed documents of all stamps, annotations and attachments as a security measure. The flatten tool will make the stamps a permanent part of your document.

Fourth Circuit holds motion for reconsideration filed with EEOC stays 90-day limitations period

2009-05-04T21:30:00.002-05:00

Today in Cochran v. Holder, No. 07-1888 (4th Cir., May 4, 2009) a disability discrimination case filed by a federal employee, the Fourth Circuit held that the 90-day limitations period begins to run from the date the EEOC denies the employee's motion for reconsideration, not from the date of the denial of the original appeal.

The Fourth Circuit found that this claimant-friendly result is supported by (a) Supreme Court precedent construing other similar statutes (See Stone v. INS, 514 U.S. 386 (1995); ICC v. Bhd. of Locomotive Engineers, 482 U.S. 270 (1987); (b) decades of federal precedent, all of which have concluded that a timely motion to reopen or reconsider delays the start of the limitations period; and (c) public policy.

Cochran v. Holder, No. 07-1888 (4th Cir. May 4, 2009)

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WV Bar web site hacked

2009-05-01T13:26:00.003-05:00

This article in the WV Record notes that the West Virginia State Bar's web site was recently hacked.

According to the article, "Anita Casey, executive director of the State Bar, said in a press release that whomever hacked the site gained access to information like current and former members' Social Security numbers, addresses and birthdates."

That's all the info someone needs to open up a credit account in your name.

I have submitted a 90-day fraud alert with Equifax, and advise other past and present members of the WV Bar to do the same. After a fraud alert is filed, "when you or someone else attempts to open a credit account in your name, increase the credit limit on an existing account, or obtain a new card on an existing account, the lender should takes steps to verify that you have authorized the request."

Filing with any one of the big 3 (Equifax, Experian, Trans Union) will result in filing with the other two, according to Equifax's site. This web page explains the process. It's a simple form to fill out and will take 2 minutes of your time. It costs nothing and does not affect current credit accounts you have.

Here is the link: www.fraudalerts.equifax.com

Here are links to the other two credit reporting agencies:

Experian - www.experian.com
Phone: 888-EXPERIAN (397-3742)

Trans Union - www.tuc.com
Phone: 800-680-7289

The West Virginia Attorney General's page has some more information about credit fraud and ID theft, if you are interested: http://www.wvago.gov/identitytheft.cfm

Blawgiversary

2009-04-18T09:07:00.001-05:00

This blog turned seven (7) years old today.

Fourth Circuit reinstates police officer's 1st Amendment retaliation case

2009-04-03T09:34:00.004-05:00

In Andrew v. Clark, No. 07-1184 (April 2, 2009) (PDF), the Fourth Circuit reinstated a First Amendment retaliation case brought by a police officer who claims he was fired for releasing an internal police memorandum to the newspaper.

Andrew wrote an internal memorandum requesting that an investigation be conducted to determine whether the use of deadly force by a tactical unit against a barricaded suspect was justified and properly conducted. When the memorandum was ignored, Andrew released it to the Baltimore Sun. He was later terminated, and claims that his First Amendment rights were violated.

The district court concluded that Andrew’s memorandum was not protected by the First Amendment under Garcetti v. Ceballos, 547 U.S. 410 (2006), because it was written as part of Andrew's official duties. See Garcetti, 547 U.S. at 424 ("[w]hen public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes and therefore are not insulated from ‘managerial discipline’ based on such statements.")

On appeal, the Fourth Circuit vacated the dismissal of the complaint, finding that "the question whether the Andrew Memorandum was written as part of his official duties was a disputed issue of material fact that cannot be decided on a motion to dismiss pursuant to Rule 12(b)(6)." Andrew had alleged that (1) he had not previously written similar memoranda after other officer-involved shootings; (2) that he would not have been derelict in his duties or suffered any employment consequences had he not written the memorandum; (3) that his superiors characterized the memorandum as "unauthorized"; and (4) that the task of investigating officer-involved shootings falls upon the Homicide Unit and the Internal Affairs Division, of which he was not a part.

Summary Judgment Standard

Later in the opinion, the Court discussed whether Andrew's motion for partial summary judgment was properly denied, even though it was unopposed. The Court found that under the 2007 amendment to Rule 56(e)(2), the district court did have the discretion to deny the motion:

The Advisory Committee Notes to Rule 56 highlight that the language was amended from the stricter "shall [if appropriate]" language to the more discretionary "should [if appropriate]" language. See Fed. R. Civ. P. R. 56(e) (2007 Amendments). The Advisory Committee Notes also highlight the discretion that district courts are given to deny summary judgment motions even when the standard appears to have been met.

Accordingly, given: (1) the discretion accorded district courts in deciding whether or not to grant motions for summary judgment; (2) the apparent disputed facts regarding the nature of Andrew’s speech, highlighted in the above discussion; and (3) the lack of a developed record at this stage in proceedings, we conclude that the district court did not abuse its discretion in denying Andrew’s motion for partial summary judgment.

How many of you are still stating the mandatory language in your motions?

Judge Wilkinson's Concurrence

Judge Wilkinson's concurring opinion is also worth a read. He discusses how the tanking economy is causing investigative journalism to wither, and how critically important inside sources like Michael Andrew are in exposing "the inner workings of massive public bureaucracies charged with major public responsibilities."

071184p
071184p scribd999

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W.Va. Supreme Court affirms $1 milion punitive award in retaliation case

2009-03-31T12:56:00.003-05:00

A one million dollar punitive damages award was affirmed by the West Virginia Supreme Court of Appeals in Peters v. Rivers Edge Mining, Inc., No. 34272 (W.Va. Supr. Ct. March 27, 2009). The plaintiff was fired from his job as a coal miner a few months after he filed a worker's compensation claim. A Boone County jury found that he had been retaliated against in violation of W.Va. Code § 23-5A-1, et seq., and awarded him $1,855,107, including one million dollars in punitive damages. The defendant employer appealed.

On appeal, the defendant argued (1) that his retaliation claims were preempted by federal labor law; (2) that collateral estoppel barred the claims; (3) that the front pay claim should not have been permitted to go to a jury, and (4) punitive damages should not have been awarded. The West Virginia Supreme Court disagreed and affirmed the judgement.

Preemption

The employer claims the plaintiff, who was a member of the union, was fired for missing two consecutive days with no proof of sickness. Pursuant to the CBA, his case was arbitrated, and the employer prevailed. The employer argued that the retaliation claims later filed in circuit court were preempted by federal labor laws.

Hearkening back to its prior ruling in Yoho v. Triangle PWC, Inc., 175 W. Va. 556, 336 S.E.2d 204 (1985), the court held that worker's compensation retaliation claims are not preempted because such claims do not require the interpretation of a collective bargaining agreement for their resolution. See Syl. pt. 2, Yoho, 175 W. Va. 556, 336 S.E.2d 204 (“An action for wrongful termination under W. Va. Code § 23-5A-1 (1981) is not pre-empted by federal labor law.”).

New syllabus point:

"8. An action for wrongful termination under W. Va. Code § 23-5A-3 (1990) (Repl. Vol. 2005) is not pre-empted by federal labor law."

Collateral Estoppel

Next, the employer argued that because the arbitrator resolved factual issues pertaining to whether the plaintiff had violated the collective bargaining agreement's “two-day rule,” such rulings constituted a final determination on the merits, and the circuit court should not have allowed such issues to be relitigated during the trial in this case.

The Court, however, found that the two cases did not involve the same issue. "[I]t is clear that the two litigations involve different central issues: the arbitration sought to resolve, under the collective bargaining agreement, whether Rivers Edge terminated Mr. Peters because he had violated the 'two-day rule' while the circuit court litigation sought to resolve, under our workers' compensation discrimination statutes, whether Rivers Edge's termination of Mr. Peters based upon his violation of the 'two-day rule' was pretextual."

Front Pay

The defendant first argued that the front pay award was improper because front pay is paid in lieu of reinstatement, and reinstatement was not an available remedy under our common law. (The statute does not provide any particular remedy).

The Court found that reinstatement is indeed an available remedy, and so too is front pay:

11. An employee who asserts a claim alleging workers’ compensation discrimination in accordance with W. Va. Code § 23-5A-1, et seq., may recover damages for front pay in lieu of reinstatement. Whether the facts of a particular case warrant an award of front pay in lieu of reinstatement is a decision committed to the circuit court, and such a determination will be reviewed for an abuse of discretion.

The court found that the award of front pay was supported by the evidence.

Punitive Damages

The remainder of the opinion reviewed the evidence supporting the punitive damages award. The Supreme Court found there was ample evidence to support the award. The jury was apparently not happy with the employer's decision to use surveillance to determine whether the employee was able to work.

Actual damages required for statutory damages award under Stored Communications Act, Fourth Circuit rules

2009-03-18T16:47:00.004-05:00

In Van Alstyne v. Electric Scriptorium, Ltd., No. 07-1892 (4th Cir. Mar. 18, 2009) (PDF), the Fourth Circuit held that a plaintiff who proved her personal e-mail account was unlawfully accessed by her former employer was required to prove actual damages under the Stored Communications Act (SCA) in order to sustain her statutory damages award.

After the Plaintiff left employment with the Defendant, she learned that her employer had accessed her personal America Online e-mail account and copied a number of e-mails. She brought suit under the Stored Communications Act, 18 U.S.C.A. § 2707(a) (West 2000) ("SCA"), alleging that the employer illegally accessed her account.

Following trial, a jury awarded her $150,000 in statutory damages and $75,000 in punitive damages against an individual defendant, and an additional $25,000 in statutory damages and $25,000 in punitive damages against the corporate defendant. The district court also awarded her $135,723.56 in attorney’s fees and costs.

On appeal, the defendants claimed that the district court erred in permitting the jury to award: (1) statutory damages of $1,000 per violation of the SCA; (2) punitive damages; and (3) attorney’s fees, without first finding that the plaintiff suffered actual damages.

Employing a "straightforward textual analysis" of the SCA, the Fourth Circuit agreed in part, concluding that plaintiffs pursuing claims under the SCA must prove actual damages in order to be eligible for an award of statutory damages. It disagreed, however, that this requirement holds for punitive damages or attorney’s fees.

Fourth Circuit affirms big FMLA verdict against Pfizer

2009-03-06T17:42:00.004-05:00

In Dotson v. Pfizer, Inc., No. 07-1920 (4th Cir. March 4, 2009) (PDF), the Fourth Circuit affirmed in part, reversed in part, vacated in part, and remanded (in whole) a million dollar award in an FMLA interference and retaliation case.

The jury awarded compensatory damages of $333,305.25, and the District Judge added a like amount in liquidated damages, plus $389,264.88 in attorney fees and costs. Both parties appealed various rulings of the district court, and the Fourth Circuit gave some guidance in a number of areas on appeal.

Judge Cacheris, sitting by designation on a panel with Judge Motz and Judge Agee authored the unanimous opinion.

Facts

The plaintiff, Dotson, was Regional Manager for Pfizer who was terminated shortly after he and his wife returned from Russia with their newly-adopted child. Pfizer argued it fired Dotson for violating a company policy regarding distribution of drug “starter” packets of antibiotics, which Dotson delivered to the Russian orphanage as a gift. The jury found in favor of the Plaintiff.

Arguments

The Court sorted through a number of FMLA issues in affirming the jury’s verdict. Below are the arguments raised by Pfizer on appeal, and how the Court dealt with each:

Argument #1: The FMLA does not provide for the type of intermittent adoption-related leave that Dotson took.

Response: Adoption-related leave can be taken intermittently in some cases. The FMLA states that an employee cannot take adoption-related leave such leave intermittently "unless the employee and the employer . . . agree otherwise." 29 U.S.C. § 2612(b)(1).

There was no dispute Dotson requested leave for the purpose of going to Russia to adopt the child. There is also no dispute that Pfizer did not formally “agree” to allow him to take intermittent FMLA leave. However, Pfizer dropped the ball by not responding to the request and denying intermittent FMLA leave. “the FMLA does not require Dotson to specifically invoke its protections in order to benefit from it. … the requirement that employer and employee must ‘agree’ on intermittent leave does not clash with the generally-accepted position that no ‘magic words’ are necessary to invoke the protections of the FMLA. Pfizer could not point to any evidence showing that it refused to allow Dotson to take adoption-related leave intermittently.”

Argument #2: Because Dotson did not request FMLA leave, Pfizer can’t be liable for retaliation. (Essentially, Pfizer argued “how could we have retaliated against him for using FMLA leave when he never requested it, and we didn’t consider him to be using it?” -- A pretty good argument, I thought.)

Response: Not so fast. “Pfizer has not shown that it made any inquiry into whether his adoption-related leave should have been classified as protected under the FMLA. Pfizer’s legal argument would allow it to use its own failure to determine whether leave should be designated
as FMLA-protected to block liability for retaliation. We decline to allow an employer to take advantage of its own lapse in such a way.”

Argument #3: Dotson could not show retaliatory animus by the “higher-ups” who decided to
fire him.

Response: The record contained sufficient evidence of pretext: (1) Pfizer’s policies regarding starters were not so clearly drawn that Dotson’s handling of starters was obviously wrongful; (2) none of the Pfizer employees who knew in advance about Dotson’s plan to donate the starters— including his direct supervisor and a member of the executive group that fired Dotson— took any action to stop him from donating the starters; (3) the other two persons directly involved in obtaining the starters for Dotson were not disciplined.

Argument #4: Dotson’s FMLA interference claim should have been dismissed because he had no evidence of damages.

Response: Dotson incurred actual damages when he was asked to work while traveling to Russia on leave that should have been FMLA-protected — work for which Pfizer did not give him a full day’s credit. Had Pfizer treated the day Dotson spent working as a work day, rather than as paid vacation, Dotson would have been paid for an additional day of accrued vacation when he was terminated. A day’s paid vacation is not valueless.

Argument #5: Dotson was properly denied front pay.

Response: “[W]e do not believe the district court abused its discretion in denying Dotson front pay. At the time the court ruled on Dotson’s request for front pay, Dotson had secured full-time employment in the pharmaceutical services industry, making approximately $65,000 less than the approximately $232,000 in salary and benefits he made prior to his termination. Thus, he had secured comparable, if not precisely equivalent, work at another major drug company. … Considering that (1) the determination of front pay is inherently speculative; (2) Dotson was of a relatively young age when terminated; (3) he is highly educated and experienced; and (4) he sought front pay from the date of his termination until the date he claims he would have retired, fifteen years in the future, we cannot say that the district court abused its discretion in denying front pay.”

Also, “the [district] court’s consideration of liquidated damages in making Dotson whole was not an abuse of discretion.”

Argument #6: The District Court’s refusal to award pre-judgment interest was not error.

Response: “[P]rejudgment interest on FMLA damages is mandatory rather than discretionary. … Regardless of whether a court believes that a plaintiff is made whole by a jury award alone, the FMLA requires the award of pre-judgment interest.” The District Court erred in refusing to calculate it, even if the Plaintiff did not specifically request it in his post-trial motions.

Moral to the Story

Juries don’t like employers who fire employees who just adopted cute little Russian babies.

And if your reason for firing such employees is that they “improperly” delivered life-saving antibiotics to other cute little Russian babies, that's not going to help you out, either.

And, if you absolutely have to fire such employees, make sure there is no way the FMLA can possibly be construed to cover them--even if they never asked for FMLA leave.

More evidence that our legislators are just out of their minds

2009-03-03T16:11:00.003-05:00

Bill takes Barbie to task

Legislation would make it unlawful to sell Barbie and similar dolls that promote or influence girls to place an undue importance on physical beauty to the detriment of their intellectual and emotional development.

Here's the link to HB 2918, in case you would like to read it yourself.

And of course, Delegate Blair wants everyone seeking public assistance to pee in a cup before they can get their food stamps.

West Virginia to adopt Virginia Code

2009-03-03T15:49:00.003-05:00

Now here's a bill that the Chamber of Commerce can get behind:

H. B. 2424

(By Delegates Overington, J. Miller, Blair
Lane and Andes)
[Introduced February 16, 2009; referred to the
Committee on the Judiciary.]

A BILL to repeal the Code of West Virginia, 1931, as amended, and to adopt in lieu thereof, the Code of the Commonwealth of Virginia; and, providing that constitutional conflicts that may arise by the adoption of said code shall be addressed at the time they are identified.

Be it enacted by the Legislature of West Virginia:
THE CODE OF WEST VIRGINIA, 1931, AS AMENDED.
§1. Repeal of the Code of West Virginia, 1931, as amended.
The Code of West Virginia, 1931, as amended is hereby repealed and the Code of the Commonwealth of Virginia is hereby adopted in lieu thereof. In the event of conflicts with this State's Constitution that may arise with statutory provisions of the Commonwealth of Virginia, such conflicts shall be addressed as they may arise.

NOTE: The purpose of this bill is to repeal the Code of West Virginia, 1931, as amended, and to adopt in lieu thereof, the Code of the Commonwealth of Virginia. It also provides that constitutional conflicts that may arise by the adoption of said code shall be addressed at the time they are identified.

Should PACER be making millions of dollars in profits?

2009-02-13T18:06:00.002-05:00

From "An Effort to Upgrade a Court Archive System to Free and Easy":

"[T]he [PACER] system runs a budget surplus of some $150 million, according to recent court reports."

Third Circuit finds "gross up" of back pay award appropriate

2009-02-04T08:31:00.003-05:00

Tax Needs May Require Additional Award in Employment Cases:

Deepening a split in the federal circuits, the 3rd U.S. Circuit Court of Appeals has ruled that winning plaintiffs in employment discrimination cases may be entitled to an additional award to compensate for the tax consequences of receiving a backpay award in one lump sum.
* * *The ruling sharpens a split in the circuits, with the 3rd Circuit opting to follow a 1984 decision from the 10th Circuit and rejecting a 1994 decision from the D.C. Circuit.

W.Va. Supreme Court holds ERISA subrogation claims belong in federal court

2008-12-19T08:42:00.003-05:00

In a rare opinion on an ERISA matter, the West Virginia Supreme Court of Appeals ruled on Monday that state courts do not have jurisdiction to determine whether ERISA plan fiduciaries or administrators can assert subrogation rights against plan participants and beneficiaries. Turner v. Turner, No. 33892 (Dec. 15, 2008).

The suit began as an ordinary infant settlement proceeding brought on behalf of the Turner children pursuant to W.Va. Code § 44-10-14 (2002), for approval of proposed minor settlements reached with the defendants. The children were injured in an auto accident. The children's mother worked for City Hospital, Inc., and the minors were all covered under City Hospital's ERISA health insurance plan. City Hospital intervened in the case to assert subrogation rights to the settlement proceeds. The circuit court ruled that it had no jurisdiction under ERISA to decide City Hospital's subrogation rights under the proposed settlement. The West Virginia Supreme Court of Appeals affirmed.

In a new syllabus point, the Court held:

3. An action by a fiduciary or administrator of a plan under the Employment Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., to obtain appropriate equitable relief to enforce the terms of the ERISA plan pursuant to 29 U.S.C. § 1132(a)(3), must be brought in the federal district courts of the United States as provided for in 29 U.S.C. § 1132(e)(1).

In the final footnote, the court noted that "[w]e wish to emphasize that even though we find any action by City Hospital to enforce its subrogation rights to be completely preempted, the Circuit Court of Berkeley County clearly retains jurisdiction to approve or disapprove the proposed infant settlements set forth in the petitions for approval of minor settlements." But City Hospital will need to file suit in federal court to have its ERISA rights determined.

U.S. Supreme Court will hear Massey-Caperton Case

2008-11-14T22:50:00.001-05:00

The U.S. Supreme Court announced today that it has accepted the Caperton vs. A.T. Massey Coal Company case. The court will decide whether Justice Brent Benjamin's refusal to recuse himself violated Caperton's due process rights.

The West Virginia Business Litigation Blog has a good post about the case with links to more news reports.

Title VII is Not a Whistleblower Law, Fourth Circuit Rules

2008-11-05T17:36:00.000-05:00

A white police officer who claimed his employer suspended him in an attempt to cover up its own wrongdoing "pleaded himself right out of court" on his Title VII race and sex discrimination claims, the Fourth Circuit held on Monday. Lightner v. City of Wilmington, No. 07-1442 (4th Cir. November 3, 2008) (PDF).

The plaintiff's argument that he was treated more harshly than a black female officer who committed a similar offense did not save his claim because the plaintiff stated several times during the litigation that "the real reason" for his suspension was to halt his internal investigation of wrongdoing by other officers.

Judge Wilkinson, writing for the unanimous three-judge panel, reasoned that "[i]n offering this explanation as to the real reason for the employer’s action, the plaintiff has undone his case. He has tried to take a statute aimed at discrete forms of discrimination and turn it into a general whistleblower statute, which of course Title VII is not."

The court further explained that

Title VII was enacted to prohibit discrimination on the basis of race, gender, and other legislatively enumerated grounds. It is not a statute intended to police standards of general fairness in the workplace, or even to protect against the firing of an employee in order to cover up wrongdoing by an employer. If it were interpreted in such an omnibus fashion, it would dilute the noble purposes for which Congress enacted it.

The court also found that no prima facie case was created because the black female officer who was treated less harshly was not similarly situated to the plaintiff.

Supreme Court denies cert in Long John Silvers case

2008-10-07T07:26:00.000-05:00

Yesterday, the U.S. Supreme Court refused (PDF) Long John Silver's petition to review a ruling by the Fourth Circuit that its former managers could proceed with a Rule 23-style opt-out class arbitration of their Fair Labor Standards Act claims.

The Fourth Circuit's ruling rejected LJS's argument that the FLSA's opt-in requirement (29 U.S.C. § 216(b)) is nonwaivable. In a 3-0 decision, the Fourth Circuit held that "[b]ecause there is a debatable contention that the FLSA's § 16(b) provision did not explicitly overrule the 'opt-out' feature of the arbitration agreement, the arbitrator did not ignore the FLSA or any other applicable legal principles when he certified an 'opt-out' class."

Class certification denied in C-8 case

2008-10-01T14:00:00.000-05:00

I learned from Steve Minor's SW Virginia Law Blog that Judge Goodwin has denied class certification in the C-8 water contamination case against DuPont. The first paragraph of the 32-page Memorandum Opinion and Order reads:

Pending before the court is the plaintiffs’ Motion for Class Certification [Docket 188]. The plaintiffs seek certification of a class of people allegedly harmed by C-8 contamination of their drinking water supply. The plaintiffs have presented compelling evidence that exposure to C-8 may be harmful to human health, and the evidence certainly justifies the concerns expressed by the plaintiffs in this case. What the plaintiffs misunderstand, however, is what they must show in order for me to certify the class. I cannot certify a class based on some potential harm to the general public, rather, there must be specific injuries to each member of the proposed class. The fact that a public health risk may exist is more than enough to raise concern in the community and call government agencies to action, but it does not show the common individual injuries needed to certify a class action. For the reasons set forth below, this court FINDS that the proposed class does not satisfy Rule 23 of the Federal Rules of Civil Procedure. The motion is DENIED.

Fourth Circuit grants new trial to DEA agent in Title VII case

2008-08-21T07:51:00.000-05:00

A former DEA special agent denied a promotion will receive a new trial on her Title VII race, sex and retaliation claims because the district court improperly restricted the introduction of evidence regarding a separate, ongoing race discrimination action against the DEA in which the plaintiff was class member, the Fourth Circuit held yesterday in Buckley v. Mukasey, No. 07-1195 (4th Cir., August 20, 2008) (PDF).

In 1977, the DEA was sued for discrimination in hiring and promoting African-Americans, resulting in a 1982 injunction order prohibiting future discrimination and requiring the DEA to institute a new hiring system. (Referred to as the Segar litigation).

In 2001, the Plaintiff, Mary Buckley, who was a member of the Segar class, was temporarily assigned to a position where she was required to assist with a GAO audit. On June 11, 2001, a GAO representative contacted the DEA about conducting a study of the DEA's hiring, promotion, and discipline systems at the request of Congresswoman Eddie Bernice Johnson, a member of the Congressional Black Caucus. An in-house attorney for the DEA commented that the plaintiff's involvement in the audit process was a conflict of interest due to her participation in the Segar case. In July 2001, the DEA posted two positions, and the plaintiff applied for each. She was turned down, and claimed that her participation in the Segar litigation was the motivating factor, along with her sex and race.

At trial, the Plaintiff sought to introduce evidence of the Segar litigation. The district judge limited the evidence that could be presented to the jury with respect to the litigation, invoking Rules 401, 402, 403, 404(a) and 404(b) of the Federal Rules of Evidence. The court found that that Buckley sought to introduce evidence regarding the prior litigation in order to establish "an environment of discrimination" within the DEA. On appeal, the Fourth Circuit held that the district court's ruling on the Segar litigation evidence "constituted an error of law and, thus, an abuse of discretion," and that "the trial court's error in restricting the Segar litigation evidence affected Buckley's substantial rights by rendering her unable to cogently demonstrate Segar litigation-related retaliatory animus." The court held that

[v]iewed in the light of its real purpose of establishing retaliatory animus, the Segar litigation evidence is unquestionably "relevant" within the meaning of Rule 401. Moreover, such evidence of other wrongs or acts is admissible under Rule 404(b), "which allows evidence of other wrongs for purposes such as proof of motive and intent."
***
Although Rule 404(b) evidence is subject to the balancing analysis of Rule 403, "the potential importance of evidence showing state of mind is properly weighed in the balance." . . . Clearly, the critical importance of the Segar litigation evidence to Buckley's proof of retaliatory animus is not outweighed (much less substantially outweighed) by any danger of unfair prejudice. ... To the extent there is any danger of confusion of the issues, a limiting instruction could be utilized to caution the jury that the Segar litigation evidence is to be considered only as evidence of retaliatory animus.

Adverse inference instruction

Buckley also argued on appeal that the district court wrongly refused her request for an adverse inference instruction against the government for spoliation of evidence. Apparently, the DEA destroyed electronic documents, pursuant to routine internal procedures, after receiving notice of her claims. The district court denied the instruction because (1) Buckley failed to demonstrate willful or intentional conduct, rather than mere negligence, on the part of the government, and (2) she did not pursue a preservation order. The Fourth Circuit noted the error:

In its analysis of Buckley's request for an adverse inference instruction, the district court appears to have committed an error of law by equating the intentional conduct necessary for such an instruction with bad faith, thereby deeming non-bad faith conduct to be negligent conduct. The court did not acknowledge that the DEA's document destruction, though not conducted in bad faith, could yet be "intentional," "willful," or "deliberate." See Vodusek, 71 F.3d at 156. Nevertheless, because we already are remanding for a new trial on other grounds, we simply leave it to the district court to consider on remand - consistent with our discussion herein - Buckley's request for an adverse inference instruction.

The court added that, "even absent a court order," "'[t]he duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.' Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001)."

Fourth Circuit affirms dismissal of suit under W.Va. Equestrian Activities Responsibility Act

2008-08-19T21:14:00.000-05:00

In an unpublished per curiam opinion, the Fourth Circuit today affirmed summary judgment in favor of the Greebrier Resort in a horseback riding injury case prosecuted by a Florida attorney as plaintiff.

In Rutecki v. CSX Hotels, Inc., No. 071144 (4th Cir., Aug. 19, 2008) (PDF), Heather Rutecki brought suit against CSX Hotels, Inc., d/b/a The Greenbrier Resort for injuries she sustained during a guided horseback ride at the resort. The basic facts of the case were (and I'm simplifying) that the guide's horse became uncooperative and left the trail, causing Rutecki's horse to throw her to the ground. Her complaint alleged violation of the West Virginia Equestrian Activities Responsibilities Act, W. Va. Code § 20-4-1 et seq., gross negligence and ordinary negligence. The district court granted Greenbrier’s motion for summary judgment on all three counts.

Even though Rutecki showed that the Greenbrier violated its statutory duty to "[m]ake reasonable and prudent efforts to determine the ability of a participant to safely engage in equestrian activity" under the EARA, the Fourth Circuit found that the district court properly dismissed the claim because she could not demonstrate that the violation proximately caused her injuries. "For Greenbrier to be liable, its failure to ascertain Rutecki’s riding ability and her ability to control [her horse] must be 'causally related' to the injuries she sustained," the Fourth Circuit ruled. Interestingly, the Greenbrier did not cite lack of causal connection as grounds for summary judgment. However, because "district courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence," the Court found Judge Johnston's entry of summary judgment appropriate.

The court made fast work of the gross negligence and negligence counts. It found no evidence that the guide was grossly negligent. It also found, in what I believe is an issue of first impression, that the EARA preempted simple negligence claims:

We agree with the district court that the West Virginia Equestrian Activities Responsibility Act displaces actions for ordinary negligence. The Act states that “there are inherent risks in equestrian activities . . . which are essentially impossible for the operators of equestrian businesses to eliminate.” W. Va. Code § 20-4-1. To permit an action for ordinary negligence against a horseman operating under the Act would contravene its purpose.

Justice Thomas B. Miller

2008-08-12T13:28:00.000-05:00

This article in today's Daily Mail notes the passing of retired West Virginia Supreme Court of Appeals Justice Thomas B. Miller. In the words of former W.Va. Supreme Court Clerk Ancil Ramey, Justice Miller was "a very hard worker, very intelligent, had great passion for the law, had great compassion for the litigants and the lawyers." Justice Miller was 79.

Marital communications in an electronic age

2008-08-11T12:22:00.000-05:00

From Mealey's Online

ROANOKE, Va. - E-mails sent by a man to his wife from his work computer about her lawsuit against her former employer did not waive the marital communications privilege because the defendant failed to show that the man's employer made him aware of its electronic communications policy and whether the policy entitled him to a reasonable expectation of privacy, a federal magistrate judge ruled June 17 in granting the plaintiffs' motion to quash a subpoena served on the man's employer (Cristin L. Sprenger v. The Rector and Board of Visitors of Virginia Tech, et al., No. 07cv502, W.D. Va.; 2008 U.S. Dist. LEXIS 47115).

Study Finds Settling Is Better Than Going to Trial - NYTimes.com

2008-08-08T09:31:00.000-05:00

Study Finds Settling Is Better Than Going to Trial - NYTimes.com

Not a surprise to most of us, I don't think.

Justice Albright recovering from surgery

2008-08-05T10:00:00.000-05:00

Best wishes for a speedy recovery to Justice Albright, who underwent surgery on his esophagus last week.

Fourth Circuit "reluctantly" affirms dismissal of suit where plaintiffs challenged their own assertions of jurisdiction

2008-07-30T18:31:00.001-05:00

Now here's something you don't see every day.

Today, the Fourth Circuit held that a set of plaintiffs who filed suit in federal court alleging diversity jurisdiction who lost on summary judgment were entitled to vacation of the judgment because they were not "citizens" for diversity purposes.

In S. Carolina Dept. of Disabilities & Special Needs v. Hoover Universal, Inc., Nos. 07-1190, 07-1202 (4th Cir. July 30, 2008) (PDF) the South Carolina Department of Mental Health, the South Carolina Department of Disabilities and Special Needs, and the South Carolina State Budget and Control Board-Insurance Reserve Fund commenced product liability actions against Hoover Universal, Inc., invoking diversity jurisdiction and alleging damages resulting from Hoover’s sale to the plaintiffs of defective trusses and sheathing, which were incorporated into public buildings constructed in the 1970s.

Relying mainly on South Carolina’s statute of repose and statutes of limitations, the district court entered summary judgments in favor of Hoover. While appeals were pending, the plaintiffs filed a motion to vacate the judgments in the district court under Federal Rule of Civil Procedure 60(b), asserting that under 28 U.S.C. § 1332(a)(1), they were not "citizens" for diversity purposes and therefore the district court never had subject matter jurisdiction. After granting a limited remand for consideration of the jurisdiction issue, the district court granted the plaintiffs’ motion.
The Fourth Circuit affirmed, "albeit reluctantly in view of the plaintiffs’ original invocation of diversity jurisdiction and their late recognition of the lack of subject matter jurisdiction."

The following passage from the opinion best summarizes the Court's holding and reasoning:

An undoubtedly inequitable hardship results from allowing the plaintiffs to prosecute actions in federal court and, after they lose on motions for summary judgment, granting their motions to vacate the judgments because of a lack of subject matter jurisdiction. As Hoover laments, "Plaintiffs have presented the federal courts with a procedural morass of their own making, and should not be rewarded at this late stage of the proceedings with a ‘do over’ in state court." In most situations, this argument would be persuasive. But subject matter jurisdiction goes to the very power of the court to act, and regardless of the waste resulting from having completed proceedings later vacated by a late-discovered jurisdictional defect, an order or judgment entered by a court without subject matter jurisdiction is a nullity.

Of course, you could also say shame on the defendant for not raising the issue in a 12(b)(1) motion at the outset. But you can imagine they might have preferred to litigate this claim in federal court. Who knows, they might have been holding on to the jurisdictional defect as their ace in the hole if things went south for them. At any rate, this is certainly an odd outcome to a case.

E-filing in the Fourth Circuit

2008-07-13T14:49:00.000-05:00

You probably received an e-mail a couple of months ago telling you that e-filing became mandatory in the Fourth Circuit effective June 1, 2008. If you were like me, you did not immediately go through the registration process. However, last week, I had to make my first e-filing (a motion), so I had to register.

Here's some advice: Don't wait until the last minute to register. The process takes several hours.

First, if you don't participate in live training, you'll need to go through a few electronic learning modules. I know what you're thinking: "I already know how to use CM/ECF because I file things all the time in federal district court." But, no. The Fourth Circuit's CM/ECF process is not the same. It uses completely different software. You'll need some training. The Court requires you to take at least the module on "Filing an Appearance of Counsel Form," and "Filing a Motion to Seal." You'll be glad you took them.

Next, you have to complete the Policies and Procedures Review, which is an online QUIZ. You must answer 9 out of 10 questions correctly to successfully complete the review. Don't panic, it's an open book test. The "book" is actually a PDF (of course) called the CM/ECF User Manual. And, the site says you can take the review as many times as necessary to successfully complete it.

After completing the on-line training and Policies and Procedures Review, submit the On-line Training Certification form.

Then, you must register through PACER for a new username and password. If you've registered in other circuits, you might be able to use your preexisting Appellate CM/ECF login. If not, here is a direct link to the registration page. For some reason, they didn't make it easy to find.

The first time you try to e-file, you will probably have to download Java Runtime Environment (JRE) 6: Java6 is required for CM/ECF to operate on your computer. When you go to log in, if it seems like it's taking forever, that's because your computer is downloading the software. If you want to get a head start, go ahead and download it now and get that part out of the way. (It is available at http://www.java.com/)

Once you get logged in to CM/ECF, you see that the menu system is completely different from the CM/ECF system used by the district courts. I found the JAVA-based system to be much SLOWER.

So, there you go. It's that easy.

Also, be sure your pop-up blocker is turned off, if you have one installed (i.e. Google toolbar, etc.)

The bottom line is, don't procrastinate.

AT&T gets "roadside assistance" from the Fourth Circuit

2008-07-02T07:23:00.002-05:00

AT&T properly removed a class action lawsuit filed in West Virginia over automoatic "Roadside Assistance" charges under the Class Action Fairness Act of 2005 (CAFA), the Fourth Circuit held yesterday in Strawn v. AT&T Mobility LLC, No. 07-2084 (PDF).

After AT&T removed the suit from the Circuit Court of Kanawha County under CAFA, the district court remanded the case, finding that AT&T failed to show that the matter in controversy exceeded the sum or value of $5 million, exclusive of interest and costs, the jurisdictional threshold established by CAFA.

On the plaintiffs’ motion to remand, the district court read the complaint as defining a narrower class consisting of only those customers who paid the $2.99/mo. "roadside assistance" fee "unwillingly." When AT&T could not provide an estimate of how many customers paid the fee but did so unwillingly, the court held that AT&T had failed to carry its burden of demonstrating the basis for its allegation that the amount in controversy exceeded $5 million and remanded this case to state court.

AT&T appealed, and the Fourth Circuit reversed, concluding that the district court either "misread or construed too broadly the issues raised by the complaint and the definition of the putative class."

Stipulations issue not reached

In an effort to thwart removal, the Plaintiffs attached to their complaint three stipulations, two signed by the named plaintiffs Strawn and Staton and one signed by counsel for the named plaintiffs and purported class members. Each of the named plaintiffs stipulated that he is not seeking damages in excess of$75,000, and counsel stipulated that their law firm does not seek damages, including attorneys fees and costs, exceeding $75,000 for each class member and that the law firm "will not accept an aggregate award for attorneys fees and costs exceeding $5 million inclusive ofany other damages awarded to each named Plaintiff and Class member."

In remanding the case, the district court rejected as ineffective the plaintiffs’ effort to limit the amount in controversy through the stipulations attached to the complaint. Strawn v. AT&T Mobility, Inc., 513 F.Supp. 2d 599, 602 (S.D. W. Va. 2007) ("Although courts have recognized binding stipulations under certain circumstances can amount to an agreement not to seek damages equal to or in excess of the jurisdictional amount, the stipulations in this case do not rise to that level.") . The plaintiffs did not cross-appeal this ruling.

U.S. Supreme Court rules that employers have the burden of persuasion on ADEA's reasonable factors other than age defense

2008-06-26T07:58:00.000-05:00

Employers arguing in ADEA disparate impact cases that their employment decisions were based on "reasonable factors other than age" bear the burden of persuasion, ruled the U.S. Supreme Court on June 19. Meacham v. Knolls Atomic Power Lab., No. 06-1505 (June 19, 2008) (PDF).

The RFOA defense provides that "[i]t shall not be unlawful for an employer … to take any action otherwise prohibited under [the ADEA's operative anti-discrimination subsections] where the differentiation is based on reasonable factors other than age." 29 U.S.C. § 623(f)(1).

The upshot of this ruling for employers is that defending ADEA disparate impact claims will be a little more difficult. If the plaintiff can show a particular employment practice disproportionately hurt older workers, the onus will be on the employer to prove (not just articulate) the reasonableness of a non-age related factor. Disparate impact cases are rare, and this decision will not likely cause problems for too many employers.

West Virginia: Where Freedom Rings

2008-06-19T23:22:00.002-05:00

June 20 is West Virginia Day. Today, I join a number of other West Virginia Bloggers taking part in a challenge to create "A Better West Virginia Day" by defining West Virginia "from the inside out" and to create "new stereotypes" of the state.

The only way to eradicate a stereotype is to create a new one. We all know the old stereotype of the toothless, inbred, racist, ignorant hillbilly that persists to this day. The truth is, the vast majority of West Virginians are nothing like the stereotype. It's time we redefined ourselves.

If I had to choose one word that truly sums up West Virginia and its people, that word would be FREEDOM.

Our state was founded on the ideal of freedom. The Latin motto Montani semper liberi ("Mountaineers are always free"), adopted in 1863, expresses the state's steadfast devotion to the principles of the Declaration of Independence and the Union.

The motto rings true today. We are a rural people who love our freedom. In the Eastern Panhandle, where I live now, throngs of Marylanders and Virginians have moved to West Virginia to escape the congestion and stress of big city life. They want to raise their children in safe, clean and peaceful communities surrounded by the natural beauty that only West Virginia can offer. By the thousands, they're finding freedom here in our state.

Perhaps most importantly, West Virginians are willing to fight for their freedom. It has been said that per capita, more West Virginians have served in America’s armed forces than the residents of any other state. West Virginia's Army National Guard has been selected as the very best state Army National Guard in the nation. Since the attacks of September the 11th, 2001, every operational unit of the West Virginia National Guard has been deployed -- and some are on their second and third deployments. When freedom rings, West Virginians answer the call.

It's no coincidence George W. Bush has celebrated Independence Day in West Virginia four times since becoming President. (2002, Ripley; 2004, Charleston; 2005, Morgantown; and 2007, Martinsburg). West Virginians exemplify freedom. The President always comments that he loves coming to this state "because it's a state full of decent, hardworking, patriotic Americans," and whether you agree with most of what he says or not, he's right about that.

So on this West Virginia Day, let us not focus on outdated stereotypes from the past, and instead focus on a common thread that truly binds us as West Virginians--the freedom in our hearts.

Fourth Circuit Makes E-Filing Mandatory Effective June 1

2008-05-28T08:52:00.001-05:00

From: Terry_Cox@ca4.uscourts.gov
Sent: Tuesday, May 27, 2008 4:35 PM
To: undisclosed-recipients
Subject: Mandatory Electronic Filing By Counsel Effective June 1, 2008

TO: Fourth Circuit Bar Members

FROM: Patricia Connor, Clerk of Court

SUBJ: Mandatory Electronic Filing By Counsel Effective June 1, 2008

Beginning June 1, 2008, attorneys are required to file documents electronically in all Fourth Circuit cases. Appendices, vouchers, and case-initiating documents (petitions for review, mandamus, permission to appeal) are excepted from electronic filing and are to be filed in paper format. Formal briefs must be filed in both electronic and paper format. Registration for electronic filing requires (1) completing this Court's required training and submitting the training certification form if training was taken on-line at http://www.ca4.uscourts.gov/cmecftop.htm; (2) obtaining a PACER account at http://www.pacer.psc.uscourts.gov if you do not have an account; and (3) registering for a Fourth Circuit ECF Filer account at http://www.pacer.psc.uscourts.gov.

If you already have an active ECF filer account with the Fourth Circuit, please disregard this message.

For complete information, visit http://www.ca4.uscourts.gov/cmecftop.htm.

Supreme Court Finds Retaliation Causes of Action

2008-05-28T07:40:00.000-05:00

In two discrimination cases decided yesterday, the Supreme Court interpreted two federal civil rights statutes to support causes of action for retaliation, even though the statutes do not expressly include such rights.

In CBOCS West Inc. v. Humphries, No. 06-1431 (U.S. Supr. Ct. May 27, 2008), the Court ruled 7-2 that although 42 U.S.C. § 1981 does not expressly prohibit retaliation, stare decisis required the Court to find an implied right:

"[C]onsiderations of stare decisis support our adherence to Sullivan [v. Little Hunting Park Inc., 396 U.S. 229 (1969)] and the long line of related cases where we interpret §§ 1981 and 1982 similarly .... We consequently hold that 42 U.S.C. § 1981 encompasses claims of retaliation."

Justices Scalia and Thomas dissented, accusing the majority of ignoring the plain text of the statute, which does not explicitly prohibit retaliation. They believed the majority's ruling only serves to compound the error represented by Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 95 FEP Cases 669 (2005), which found an implied retaliation cause of action under Title IX.

In Gomez-Perez v. Potter, No. 06-1321 (U.S. Supr. Ct. May 27, 2008), the Court ruled that the Age Discrimination in Employment Act (ADEA) prohibits retaliation against federal employees, even though the statute does not expressly include a prohibition against retaliation. The staute does, however, prohibit retaliation in the private sector.

In the 6-3 ruling, Chief Justice Roberts, and Justices Scalia and Thomas dissented. They reasoned that "the statutory language and structure, as well as the fact that Congress has always protected federal employees from retaliation through the established civil service process, confirm that Congress did not intend those employees to have a separate judicial remedy for retaliation under the ADEA."

South-Western Legal's Case Updates

2008-05-02T07:58:00.001-05:00

If you are a "generalist," or just generally interested in different areas of the law, check out the South-Western Legal Studies in Business' Case Updates (loads slowly). Each month, this page features 20 or so case summaries of interesting cases in various disciplines. It is intended as a resource for legal studies classes. I usually find at least one case every month that touches on an issue I or one of my colleagues is dealing with.

Here is the case list for May:

Seller of Property May Still Be Liable for Torts (Real and Personal Property)

Majority Partner Can, Given Partnership Terms, Force Sale of Partnership (Business Organization)

Intentional Torts Not Covered by Umbrella Liability Policies (Insurance)

Congress Has Ability to Cancel Trademarks (Intellectual Property)

Trial Judge May Use Discretion to Order New Trial (Court Procedure)

Lost Profits, Not Lost Revenue, Are Proper Measure of Damage for Breach (Contracts)

Physician Qualified to Be Expert Witness about Procedure by Nurse (Court Procedure)

Courts Defer To Agency Expertise in Absence of Conflict with Legislative Meaning (Administrative Law)

Clock Begins to Run When Notice of Arbitration Award Mailed (Alternate Dispute Resolution)

No Privacy Right for Criminal Suspects for Certain Public Disclosures (Constitutional Law)

Landlord Not Responsible for Attack by Tenant’s Vicious Dog (Real and Personal Property)

Groups Cannot Sue for Libel or Emotional Distress (Torts)

Vacation Days that Occur During FMLA Leave Are Part of the Leave (Employment Law)

Employer Imposed Arbitration Program Agreed to by Continuing Employment (Alternate Dispute Resolution)

Parody of Famous Mark Allowed (Intellectual Property)

ISP Not Liable for Discriminatory Content in Ad Postings (Cyberlaw)

It would be nice if they had an RSS feed. But until the get one, you can use WatchThatPage to give you updates.

Fourth Circuit affirms denial of qualified immunity to police officer using taser on unruly arrestee

2008-04-28T15:48:00.000-05:00

A 280 pound sheriff's deputy who used his taser (twice) on a 100 pound female arrestee during her transport to jail was properly denied qualified immunity, the Fourth Circuit held today in Orem v. Rephann, No. 07-1696 (4th Cir. Apr. 28, 2008).

The Plaintiff, Sonja Orem, was arrested for disrupting and assaulting an officer. Three officers restrained Orem, placed her in handcuffs, a foot restraint device, and put her in a police car.

During her transport to the regional jail, she became disorderly, kicking and thrashing about in the back seat and cursing at the officer. The driver pulled over, as did Defendant Rephann who was driving in a separate car behind them. Rephann approached with his taser drawn. The transporting officer opened the front passenger side door and attempted to tighten Orem's foot restraint. Rephann opened the rear door. Orem cursed at him and Rephann shocked her twice with the taser, hitting her below the breast and inside one of her thighs. The incident was recorded by Rephann's dashboard camera. The taser left a sunburn-like scar on Orem's thigh.

The district court denied Rephann's motion for summary judgment asserting qualified immunity. The Fourth Circuit affirmed:

While we recognize that "not every push or shove, even if it may later seem unnecessary" is serious enough to entail a deprivation of a constitutional right, ... the facts, here, when viewed in a light most favorable to Orem, evidence that Deputy Rephann’s use of the taser gun was wanton, sadistic, and not a good faith effort to restore discipline. Orem’s behavior without question was reprehensible, but Deputy Rephann’s use of the taser was an "unnecessary and wanton infliction of pain."

The parties had briefed the case as a Fourth Amendment case rather than Fourteenth Amendment case. The court found that to be erroneous, and applied a Fourteenth Amendment analysis:

The point at which Fourth Amendment protections end and Fourteenth Amendment protections begin is often murky. But here, Orem’s excessive force claim arises during her transport to EJR, after she was arrested. While she had not been formally charged, her status as an arrestee requires application of the Fourteenth Amendment to her claim. The district court erred in applying the Fourth Amendment. We, nevertheless, affirm its denial of summary judgment on alternative grounds.

In his concurring opinion, Judge Shedd was a bit more pointed in his criticism:

Throughout this litigation, the parties have pled and argued this case as one involving a Fourth Amendment excessive force claim. Even after the district court noted the potential applicability of the Fourteenth Amendment in its summary judgment order, and after we requested supplemental briefing and specifically cited circuit precedent that indicates the applicability of the Fourteenth Amendment ... the parties continued to maintain that the Fourth Amendment applies. However, as the majority correctly holds, this is unquestionably a Fourteenth Amendment case because at the time Deputy Rephann used his taser on Ms. Orem, she had been placed under arrest; consequently, the act of seizing her was complete, ... and the Fourth Amendment was no longer applicable.... Despite the parties’ refusal to recognize this rather obvious conclusion, we are not bound by their erroneous characterization of the law ... and we may affirm on any ground appearing in the record, including theories not relied upon by the district court ....

Judge Shedd agreed that a sufficient jury question exists on the record concerning whether Deputy Rephann used his taser in a good-faith effort to maintain order, or "maliciously and sadistically" used it to inflict harm. Judge Shedd found the following facts persuasive:

(1) Ms. Orem, while unruly, was mostly restrained in the back of the patrol car;

(2) Deputy Rephann used the taser immediately in response to Ms. Orem’s use of profanity toward him;

(3) Deputy Rephann’s taser twice made contact with Ms. Orem, and both times the contact was in a sensitive body area (i.e., just below her breast and on her thigh); and

(4) Deputy Rephann told Ms. Orem that she needed to "respect" the officers immediately after he used his taser.

The majority opinion cited the following additional facts in support of its holding:

Deputy Rephann did not follow the Sheriff’s Department’s Taser policy, which requires use of open hand measures before application of the taser.
Orem was handcuffed, weighed about 100 pounds, was in the process of having her foot restraint tightened, and was locked in the back seat cage of police car at the time she was tasered;
The transporting deputy, who was bearing the brunt of Orem's rage, did not request assistance and saw fit to first try to secure her foot restraints — not use electric shock to restore order; and
Another officer standing directly behind Deputy Rephann, did not attempt to restrain Orem or assist the deputy tightening the restraints — let alone use a taser gun.

One last note--really a question. In the final footnote of the concurring opinion, Judge Shedd mentioned that "After the district court orally denied Deputy Rephann’s summary judgment motion, he unsuccessfully moved under Fed. R. Civ. P. 52(b) for the district court to make additional findings and change its ruling, and he apparently submitted for the first time several affidavits (including his own) with that motion. Rule 52(b) is a trial rule that is not applicable in a summary judgment proceeding; however, a motion erroneously filed under Rule 52(b) may be treated as a Rule 59(e) motion to alter or amend."

Your trivia question is, is Rule 59(e) the correct rule? My understanding was that Rule 59(e) only applied to final judgments. A denial of summary judgment is not a final judgment, although it is nevertheless an appealable order under Henry v. Purnell, 501 F.3d 374, 376 (4th Cir. 2007) (citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). In the past, the Fourth Circuit has held that motions to revise such orders should not be treated under Rules 59 or 60 of the Federal Rules of Civil Procedure, both of which apply only to final orders. See Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1472 (4th Cir. 1991). So what rule does it fall under?

My answer has always been Rule 54(b) ("any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.") But don't ask me what the standard is for a Rule 54(b) motion because I really don't have an answer for that. If you do, leave me a comment.

W.Va. Supreme Court holds plainitff's lawyer entitled to attorney fees in addition to accepted offer of judgment

2008-03-30T16:20:00.000-05:00

In Croft v. TBR, Inc., No. 33504 (W.Va. Supr. Ct., Mar. 18, 2008), the West Virginia Supreme Court again held that a plaintiff's lawyer who accepted three offers of judgment to settle a case was entitled to his reasonable attorney fees, as well.

In Croft, the defendant made the following offer of judgment:

Pursuant to the provisions of Rule 68 of the West Virginia Rules of Civil Procedure (2006), the defendants, TBR, Inc., d/b/a TJ’s Sports Garden and Restaurant, and Tashe Jovanni Radevski, and Shane Kulpa, hereby allow judgment to be taken against them by the plaintiff, [Plaintiff’s Name], for full satisfaction and dismissal of all claims which have been and/or could have been asserted by plaintiff and any other person or entity in this civil action, including any subrogation claims/liens had by any person or entity for payments made to or on behalf of plaintiff, in the total amount of Thirteen Thousand Dollars and No Cents ($13,000.00), to be paid on defendants’ behalf by Erie Insurance Property and Casualty Company.

This offer of judgment is made for the purposes specified in Rule 68 and is not to be construed either as an admission that the defendants are liable in this action, or that plaintiff has sustained any damages. According to Rule 68(c), if this offer is not accepted within ten days after the service of the offer, it shall be deemed withdrawn. Should plaintiff not accept defendants’ offer herein within the expiration of the ten day period, and should the judgment finally obtained by plaintiff against defendants not exceed Thirteen Thousand Dollars and No Cents ($13,000.00), defendants will, pursuant to Rule 68(c), seek an Order from the Court requiring plaintiff to pay all costs incurred in the defense of this case subsequent to the date of this offer.

So, what's wrong with that, you might ask? It doesn't explicitly address attorney fees.

The Plaintiffs in this case accepted the offer of judgment, then promptly filed a motion for attorney fees and costs in circuit court. The circuit court denied the motion on the basis that the language in the offers of judgment specifically referring to “[a]ll claims that have been or could be asserted,” is broad enough to include attorney’s fees and costs.

On appeal, the Supreme Court reversed. It referred back to footnote 8 of its opinion in Shafer v. Kings Tire Service, Inc., 215 W.Va. 169, 597 S.E.2d 302(2004) in which it noted that "unless the [Rule 68] offer [of judgment] explicitly includes attorney's fees, the courts construe the offer to be silent as to attorney's fees if fees are not explicitly included, thereby necessitating an attorney's fee award beyond the sum included in the offer."

A trap for the unwary.

The Court remanded the case for the imposition of attorney's fees and costs.

Thus, if you are a defendant, make darn certain your offer of judgment under Rule 68(a) explicitly provides that the amount of the offer is inclusive of costs and attorney fees.

Fourth Circuit knocks plaintiff's SOX off

2008-03-30T15:21:00.002-05:00

In 2-1 decision, the Fourth Circuit ruled that a Wyeth Inc. employee who claimed he was discharged for complaining that Wyeth was behind schedule on training required by FDA regulations failed to present sufficent evidence to support a Sarbanes-Oxley Act ("SOX") whistleblower suit. Livingston v. Wyeth Inc., No. 06-1939 (4th Cir. Mar. 24, 2008).

Livingston complained to Wyeth’s management about Wyeth’s inability to implement on schedule a training program, supposing therefore that local employees would likely misrepresent or cover up the deficiencies in progress to internal compliance auditors and to the FDA. The training program was designed to train employees in good manufacturing practices, and its implementation was required by FDA regulations.

Livingston asserted that in making his complaints, he reasonably believed that Wyeth’s potential conduct in misrepresenting or covering up the deficiencies in timely implementation of the program would constitute violations of the Securities Exchange Act of 1934, and therefore that his conduct was protected under the Sarbanes-Oxley Act.

Affirming summary judgment in favor of Wyeth, the majority concluded that the plaintiff had no evidence that any Wyeth employee intended to misrepresent or conceal information, and no basis for a reasonable belief that the company was violating federal securities laws.

Under SOX, a plaintiff is required to show a subjectively and objectivly reasonable belief that company actions were presently violating the law. According to the majority, he could not do so. Judge Niemyer called Livingston's evidence a "chain of speculation" that was "simply too long to support a claim that Wyeth in fact covered up anything and made misrepresentations to the FDA or was in the process of doing so, as is required to support a violation of the securities laws."

Judge Michael, who dissented, found that Livingston had stated a claim. He wrote that although "an employee’s belief is unreasonable (and unprotected) if it is based entirely on unsupported conjecture about hypothetical future events" it is reasonable if it "relate[s] to activity that a reasonable person could conclude is or is about to become a violation." He believed Livingston was entitled to a trial because he claimed that he had been threatened with retaliation if he refused to join in a cover up of Wyeth's failure to comply with federal law.

Fourth Circuit rules removal petitions need not be more specific than complaints in alleging grounds for diversity jurisdiction

2008-03-10T16:44:00.000-05:00

In Ellenburg v. Spartan Motors Chassis, Inc., No. 06-1864 (4th Cir. Mar. 10, 2008) (PDF), a three judge panel of the Fourth Circuit held unanimously that a district court should not have remanded a case sua sponte where the removal petition failed to allege facts supporting diversity jurisdiction.

The basic facts of the case were that the defendant filed a notice of removal alleging diversity jurisdiction in the following manner:

The value of the matter in dispute in this case, upon information and belief, exceeds the sum of Seventy Five Thousand and No/100 ($75,000.00) Dollars, exclusive of interest and costs, as it appears from the allegations contained in Plaintiff’s Complaint. Defendants’ counsel believes in good faith that the amount in controversy in this case meets and exceeds the $75,000 limit required for diversity jurisdiction.

In addition, the Plaintiff claims entitlement to punitive damages. Consequently, this action is one over which the District Court of the United States has original jurisdiction pursuant to 28 U.S.C. § 1332.

Pretty typical, right? Six days later, the district court sua sponte entered an order remanding the case to state court, concluding that the notice of removal’s allegation that the value of the matter in controversy exceeded the sum of $75,000 was "inadequate to establish" the jurisdictional amount, because it failed to "allege facts adequate to establish" the amount.

The defendant filed a Rule 59(e) motion, and attached an affidavit supporting that the case was worth well over $300,000, but the district court refused to consider the evidence and denied the motion. Defendant appealed.

On appeal, the Fourth Circuit reversed, holding:

(1) that a court of appeals can review such an order despite 28 U.S.C. § 1447 where the remand order is based on a procedural defect in the removal petition that was never raised by the plaintiff and not on lack of subject matter jurisdiction;

(2) that "a district court is prohibited from remanding a case sua sponte
based on a procedural defect absent a motion to do so from a party"; and

(3) that it was inappropriate for the district court to have required a removing party’s notice of removal to meet a higher pleading standard than the one imposed on a plaintiff in drafting an initial complaint:

[J]ust as a plaintiff’s complaint sufficiently establishes diversity jurisdiction if it alleges that the parties are of diverse citizenship and that "[t]he matter in controversy exceeds, exclusive of interest and costs, the sum specified by 28 U.S.C. § 1332," see Fed. R. Civ. P. 84; Fed. R. Civ. P. app. Form 2(a), so too does a removing party’s notice of removal sufficiently establish jurisdictional grounds for removal by making jurisdictional allegations in the same manner.

The Court added that, "[o]f course, on a challenge of jurisdictional allegations, '[t]he party seeking removal bears the burden of demonstrating that removal jurisdiction is proper.' Blackwater, 460 F.3d at 583. But this burden is no greater than is required to establish federal jurisdiction as alleged in a complaint."

EEOC may treat intake questionnaires as charges, Supreme Court rules

2008-02-28T08:23:00.001-05:00

In 7-2 decision, U.S. Supreme Court ruled yesterday in Federal Express Corp. v. Holowecki, No. 06-1322 (U.S. Supr. Ct. Feb. 27, 2008) (PDF) that an intake questionnaire or other informal document filed with the Equal Employment Opportunity Commission that can reasonably be construed as a request for action constitutes a "charge" of discrimination within the meaning of the Age Discrimination in Employment Act.

The Court found that although the EEOC's regulations are not a picture of clarity in defining the statutory term "charge," they reasonably interpret statute and are therefore entitled to deference. To be considered a "charge," the document must embody a request by the employee for the agency to take whatever action is necessary to vindicate her rights.

The Court rejected the argument that the EEOC's failure to act on a filing meant it was not a charge. The Court did, however, admonish the EEOC to consider revising its forms and procedures to "reduce the risk of further misunderstandings."

Interestingly, Justice Thomas, who used to head the EEOC, dissented. In his dissent, joined by Justice Scalia, Thomas said the majority is essentially considering a charge to be "whatever [the EEOC] says it is." He said the standard is too "malleable" and that it "effectively absolves the EEOC of its obligation to administer the ADEA according to discernible standards."

Admission of "me too" evidence is within trial court's discretion, Supreme Court rules

2008-02-27T09:34:00.001-05:00

Yesterday in Sprint/United Mgmt. Co. v. Mendelsohn, No. 06-1221, (Feb. 26, 2008) (PDF), a unanimous Supreme Court ruled that so-called "me too" evidence--testimony, by nonparties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff--is neither per se admissible nor per se inadmissible under the Age Discrimination in Employment Act (ADEA). Instead, the trial court judge must engage in a "fact-intensive, context-specific inquiry" to determine admissibility.

The district court granted the defendant's motion in limine to exclude evidence of "discrimination against employees not similarly situated to" the plaintiff. It defined "similarly situated employees" as those selected for RIF by the same manager who chose Mendelsohn and during the same time frame. The jury rendered a defense verdict.

The Tenth Circuit reversed, finding that the district court had improperly applied a per se rule excluding "me too" evidence. The Supreme Court was not so sure that a per se rule was applied, but it opined that if such a rule were applied, it would have been incorrect. However, it decided more information was needed about the reasoning of the district court, and it vacated and remanded the Tenth Circuit's decision with instructions to have the district court clarify the basis for its evidentiary ruling under the applicable Rules.

The Supreme Court's decision is not really a victory for employers or employees. It reserves to the district court the discretion to review "me too" evidence for relevance, probative value and danger of unfair prejudice.

The West Virginia Supreme Court reached a similar result in McKenzie v. Carroll Int'l Corp. in 2004.

FMLA Poster Addendum

2008-02-18T13:36:00.002-05:00

For those of you trying to get in compliance with the newly revised FMLA, the US Department of Labor has released an FMLA Poster Insert for Military Family Leave Amendments (PDF).

As this page explains, technically, item number 1 does not take effect until the DOL issues its final regulations defining "any qualifying exigency."

NDAAAmndmnts

Fourth Circuit holds religious accommodation need not be complete to be reasonable

2008-02-16T10:50:00.002-05:00

Here's an opinion employers are sure to like.

In EEOC v. Firestone Fibers & Textiles Co., No. 06-2203 (4th Cir. Feb. 11, 2008) (PDF), the Fourth Circuit found an employer's accommodations of a lab employee's religious needs to be reasonable where the employer provided several ways for the employee not to work during his religious holidays and weekly Sabbath.

In this Title VII action, the employee alleged Firestone Fibers & Textiles discriminated against him based on his religion by refusing to relax its attendance policies to allow him to be absent for religious holidays and observances, including a weekly Sabbath beginning Friday at sundown and ending Saturday at sundown.

The EEOC argued that an employer provides a reasonable accommodation only when it "eliminate[s] the conflict between the religious practice and the work requirement." "Put another way," the court explained, the EEOC argues "that Title VII requires an employer, absent undue hardship, to totally accommodate an employee’s religious observances." The court disagreed with such an interpretation:

The problem with appellants’ "total" accommodation interpretation is that such a construction ignores the plain text of the statute, namely the inclusion of the word "reasonably" as a modifier of accommodate. If Congress had wanted to require employers to provide complete accommodation absent undue hardship, it could easily have done so.
* * *
Religion does not exist in a vacuum in the workplace. Rather, it coexists, both with intensely secular arrangements such as collective bargaining agreements and with the intensely secular pressures of the marketplace.
* * *
A duty of "reasonableness" cannot be read as an invariable duty to eliminate the conflict between workplace rules and religious practice.

The court found that the following accommodations, taken together, were reasonable:

(1) Firestone’s use of a seniority-based bidding system for working shifts. The court found this to be a reasonable accommodation even though the employee lacked sufficient seniority to change his shift. ("The fact that [the employee] does not currently benefit from the seniority system does not negate the reasonableness of the accommodation.")

(2) The governing collective bargaining agreement provided the employee with 15 eight-hour vacation days and three floating days, all of which could be taken without restrictions. ("Indeed, the EEOC Guidelines on Discrimination Because of Religion highlights the use of 'flexible scheduling' such as 'floating or optional holidays,' as 'one means of providing reasonable accommodation.' 28 C.F.R. § 1605.2(d)(1)(ii) (2007).")

(3) Firestone allowed shift swaps among employees up to twice per quarter, for a total of eight times per year. (See 29 C.F.R. § 1605.2(d)(1)(i) (stating that "voluntary swap[s]" constitute "[r]easonable accommodation")).

(4) Under its attendance policy, Firestone provided all employees with sixty hours of unpaid leave.

(5) Firestone allowed the employee to take more half-day vacations than allowed under the CBA.

(6) On a weekly basis, a supervisor reviewed the shift schedules to see if he could move the employee to a day shift to allow him to observe his Sabbath without taking any leave time.

Despite all of this, the EEOC contended that Firestone should have allowed the employee to take more unpaid leave time than permitted by the company's attendance policy. Again, the court disagreed for reasons that will make perfect sense to any employer who has been caught in this situation:

It is well established that Title VII does not require an employer to violate the terms of a collective bargaining agreement, especially provisions pertaining to seniority-based scheduling.
* * *
Likewise, an employer is not required to adversely impact or infringe on the rights of other employees when accommodating religious observances.
* * *
[W]hen determining the reasonableness of a possible accommodation, it is perfectly permissible for an employer to consider the impact it would have on a seniority-based scheduling system as well as on other employees. While such considerations may not be based on mere speculation or conjecture, an employer is not required "to wait until it [feels] the effects" of the proposed accommodation before determining its reasonableness. Indeed, employers must be given leeway to plan their business operations and possible accommodative options in advance, relying on an accommodation’s predictable consequences along the way. If an employer reasonably believes that an accommodation would entail a violation of the applicable CBA or impose "more than a de minimis impact on coworkers," then it is not required to offer the accommodation under Title VII. (emphasis added) (citations omitted).

In its brief, the EEOC actually argued that "providing a reasonable accommodation for one employee's religious beliefs or practices does not adversely affect other employees, for those employees are not denied any term, condition, or privilege of employment to which they are otherwise entitled." Sure. Tell that to the co-worker who has to work every Friday night and Saturday morning so his colleague can be accommodated. The Fourth Circuit correctly recognized the argument as unsound.

Finally, the court rejected the EEOC's argument that Firestone was required to grant the employee an unpaid leave of absence of 11 days to observe two religious holidays. The employer denied the request because traditionally, it had only granted such requests for one-time, non-recurring events. "If Firestone were to grant a special exception for Wise for recurring obligations, it would have imposed the same type of burdens on the seniority-based scheduling system and Wise's fellow employees as if it had excused him from the attendance policy altogether." Then comes the following quotable quote: "As discussed earlier, evenhandedness and fairness are of paramount importance to the functionings of any workplace. Co-workers have their rights, too." (emphasis added).

One of the biggest frustrations employers deal with is the balancing of the rights of protected employees against the rights of non-protected coworkers (such as the right to fair and evenhanded treatment). The reality of the workplace is that resentment abounds when certain workers receive special treatment--regardless of the reason. While some of that is unavoidable, the court has clearly recognized that the employer need not impose more than a de minimis burden on its other employees to accommodate an employee's religious needs. The court is exactly right that evenhandedness is of paramount importance in the workplace, and that "co-workers have their rights too."

Justice Starcher steps aside in Massey case

2008-02-15T16:44:00.000-05:00

A press release from the West Virginia Supreme Court of Appeals:

CHARLESTON, W.Va. – West Virginia Supreme Court Justice Larry Starcher announced today that he is disqualifying himself from participating in the rehearing of the Harman Mining Corporation v. A. T. Massey Coal Company case. Oral arguments on the rehearing are set for March 12 at the Supreme Court.

Justice Starcher said, "I am stepping aside, hoping that Justice Benjamin does the same, so we can end the public controversy about the case and restore confidence in our Court by having five totally impartial justices hear the appeal."

The full text of Justice Starcher’s statement filed in the case can be viewed here.

Fourth Circuit affirms dismissal of former employee's FLSA claim, but revives his retaliation claim

2008-02-02T16:03:00.000-05:00

In Darveau v. Detecon, Inc., No. 06-2092 (4th Cir., Jan. 31, 2008) (PDF), the Fourth Circuit held that an employee did not have show a "materially adverse" employment action in order to make out a retaliation claim under the FLSA.

After Detecon, Inc., a small wireless telecommunications consulting company, discharged one of its officers, Larry Darveau, he sued, alleging that Detecon had not paid him overtime in violation of the Fair Labor Standards Act. Fifteen days later, Detecon filed a fraud suit in state court against Darveau. Darveau then amended his complaint in the federal court case to allege that Detecon’s lawsuit constituted an illegal retaliatory action under 29 U.S.C. § 215(a)(3) (2000) of the FLSA.

The cases were eventually consolidated, and the district court dismissed Darveau’s retaliation claim for failure to state a claim under Rule 12(b)(6), and granted summary judgment to Detecon on Darveau’s remaining claims. The Fourth Circuit affirmed the summary judgment of the overtime claim, but reversed the dismissal of the retaliation claim.

The retaliation claim was dismissed because the district court, relying on older Title VII cases (which Detecon had cited to the court), ruled that in order to establish an FLSA retaliation claim, Darveau had to demonstrate that he suffered a materially adverse employment action involving an ultimate employment decision related to hiring, leave, discharge, promotion, or compensation.

This standard was rejected by the Supreme Court in the 2006 decision in Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2414 (2006). In that case, the Court held that a Title VII retaliation plaintiff need not allege or prove an ultimate adverse employment action, because "[t]he scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm." The Supreme Court ruled that Title VII’s retaliation provision requires a plaintiff simply to allege and prove "that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 2415 (citations and internal quotation marks omitted).

Following its tradition of applying Title VII retaliation cases in the FLSA context (unless reasons exist not to do so), the Fourth Circuit found that Darveau had alleged a prima facie case of FLSA retaliation:

a plaintiff asserting a retaliation claim under the FLSA need only allege that his employer retaliated against him by engaging in an action "that would have been materially adverse to a reasonable employee" because the "employer’s actions . . . could well dissuade a reasonable worker from making or supporting a charge of discrimination."... Darveau has alleged such an action here, i.e., that his employer filed a lawsuit against him alleging fraud with a retaliatory motive and without a reasonable basis in fact or law. We therefore must reverse the judgment of the district court dismissing Darveau’s retaliation claim and remand for further proceedings consistent with this opinion.

The lesson from this case is, resist the urge to file that lawsuit against an employee who just sued you under the FLSA (or Title VII, or the FMLA, ADA, ADEA or any other civil rights statute that has a retaliation provision). It just isn't worth getting sued.

Long John Silver's Says Arrrbitrator Disregarrrrded the Law

2008-02-02T15:17:00.000-05:00

The Fourth Circuit left Long John Silver's reachin' for its noggin of rum on January 28 when it ruled that an arbitrator properly allowed three former restaurant managers and managerial assistants to proceed with a Rule 23-style opt-out class arbitration of their Fair Labor Standards Act claims. Long John Silver's Rests. Inc. v. Cole, No. 06-1259 (4th Cir., Jan. 28, 2008) (PDF). (And yes, I'm aware that Talk Like A Pirate Day is not until September 19, but I couldn't resist).

Three former LJS employees alleged that the restaurant violated the FLSA by subjecting them to payroll deductions and salary givebacks to cover losses in restaurant operations. All three had signed an arbitration agreement requiring them arbitrate the dispute under the commercial rules of the American Arbitration Association. Although the FLSA permits only opt-in "collective actions," the AAA rules permit opt-out class actions.

The employees sought class certification under the AAA rules, and the arbitrator ruled that the three employees could serve as representative plaintiffs in an opt-out class arbitration on behalf of current and former restaurant managers and managerial assistants. LJS sued in federal court, and the U.S. Department of Labor filed an amicus brief supporting its argument that the FLSA's opt-in requirement (29 U.S.C. § 216(b)) is nonwaivable. Both the district court and the Fourth Circuit disagreed. In a 3-0 decision, the Fourth Circuit held that "[b]ecause there is a debatable contention that the FLSA's § 16(b) provision did not explicitly overrule the 'opt-out' feature of the arbitration agreement, the arbitrator did not ignore the FLSA or any other applicable legal principles when he certified an 'opt-out' class."

Arrrgh.

Fourth Circuit affirms jury verdict for employee perceived as disabled

2008-02-02T13:01:00.000-05:00

In Wilson v. Phoenix Specialty Mfg. Co., No. 06-1818 (4th Cir. Jan. 23, 2008) (PDF), the Fourth Circuit affirmed a $197,783 jury verdict against a South Carolina manufacturer for terminating, in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the employment of a shipping supervisor it "regarded as disabled" by Parkinson’s disease.

This case is a good example of the role e-mail can play in a "perceived as disabled" claim. The company's president stated in an e-mail to an assistant that Wilson "qualifies for ADA designation." Even though the e-mail was sent more than a year before Wilson was terminated, the court found that it was an early example of how the company erroneously believed Wilson was disabled--"a perception that continued ... until his termination[.]"

The defendant also was found to have perceived Wilson as disabled because it ignored a doctor's note releasing him to work without restrictions, avoided him whenever possible, and expressed belief that he was substantially limited in his ability to see, use a computer, and perform manual tasks.

The case also contains an interesting "non ruling." Although the district court found that the Defendant owed (and breached) a duty of reasonable accommodation to Wilson even though he was not actually disabled, the Fourth Circuit refused to affirm on that ground:

As a threshold matter, Phoenix argues that an employer does not have a duty to provide accommodation to an employee it simply regards as disabled. There is a pronounced circuit split on this issue. Compare Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1232-33 (9th Cir. 2003) (concluding that there is no duty to accommodate an individual who is regarded as having a disability); Weber v. Strippet, Inc., 186 F.3d 907, 916-17 (8th Cir. 1999) (same); Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir. 1999) (reaching same conclusion without analysis); Newberry v. E. Tex. State Univ., 161 F.3d 276, 280 (5th Cir. 1998) (same); with D’Angelo v. Conagra Foods, Inc., 422 F.3d 1220, 1240 (11th Cir. 2005) (concluding that there is a duty to accommodate an individual who is regarded as having a disability); Kelly v. Metallics West, Inc., 410 F.3d 670, 675 (10th Cir. 2005) (same); Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 772-76 (3d Cir. 2004) (same); Katz v. City Metal Co., 87 F.3d 26, 33 (1st Cir. 1996) (same). We are not required to choose a side on this issue because the damages awarded to Wilson are tied directly to his discriminatory termination and not to Phoenix’s failure to accommodate.

That argument will have to be settled another day.

Fourth Circuit affirms $108,000 jruy verdict against FedEx

2008-01-25T09:08:00.000-05:00

In EEOC v. Federal Express Corporation, No. 06-1724 (4th Cir., Jan. 23, 2008) (PDF), the Fourth Circuit unanimously affirmed a $108,000 judgment against FedEx in a disability discrimination case. The EEOC filed suit on behalf of Ronald Lockhart, a former package handler who is deaf. The jury awarded $8,000 in compensatory damages and $100,000 in punitive damages for FedEx's failure to reasonably accommodate Lockhart under the Americans with Disabilities Act (ADA).

FedEx's arguments on appeal were twofold: (1) that there was insufficient evidence on which to submit the question of punitive damages to the jury; and (2) that the punitive damages award was constitutionally excessive.

On the first issue, the Court found that the evidence supported a punitive award. The EEOC established that Lockhart's supervisors were aware of his disability, familiar with the ADA and FedEx's obligations thereunder, but nevertheless failed to provide sign language interpreters or other accommodations to Lockhart at employee meetings and training sessions. Since 1991, FedEx has maintained an internal ADA compliance manual called the "People Manual." However, the Senior Operations Manager acknowledged at trial that although he knew about the policy, he never utilized the People Manual to ascertain how to accommodate Lockhart's deafness disability. He also failed to train Lockhart's direct supervisor.

Regarding the second issue, the Court held that the 12.5 to 1 ratio of punitive to compensatory damages did not render the award unconstitutional. It noted that although the punitive damages award "should bear some reasonable relationship to the corresponding award of compensatory damages," the relationship is "only one factor in an excessiveness analysis. ... Indeed, the [Supreme] Court has specifically declined to draw some mathematical bright line between constitutionally acceptable and unacceptable ratios." Because FedEx's conduct was sufficiently reprehensible, the award was reasonably proportional, and the total award was within the $300,000 statutory cap, the Court found the award not to be unconstitutionally excessive.

Uniform Rules Relating to the Discovery of Electronically Stored Information

2008-01-17T12:21:00.000-05:00

This post at K&L Gates Electronic Discovery Law Blog notes that the National Conference of Commissioners on Uniform State Laws has approved its Uniform Rules Relating to the Discovery of Electronically Stored Information and recommended them for enactment in all the states.

The NCCUSL notes that it borrowed heavily from the 2006 e-discovery amendments to the Federal Rules of Civil Procedure.

The NCCUSL Drafting Committee held its initial meeting on April 21-22, 2006 in Detroit, Michigan. At that time, the Drafting Committee decided not to reinvent the wheel. It was the Drafting Committee’s judgment that the significant issues relating to the discovery of information in electronic form had been vetted during the Federal Rules amendment process. Accordingly, this draft mirrors the spirit and direction of the recently adopted amendments to the Federal Rules of Civil Procedure. The Drafting Committee has freely adopted, often verbatim, language from both the Federal Rules and comments that it deemed valuable. The rules are modified, where necessary, to accommodate the varying state procedures and are presented in a form that permits their adoption as a discrete set of rules applicable to discovery of electronically stored information.

Although West Virginia's rules of civil procedure are very similar to the federal rules, West Virginia has not been quick to adopt changes to the federal rules--even the more useful ones such as the mandatory Rule 26(a) initial disclosure requirements added in 2000. Perhaps the NCCUSL's recommendations will help prod things along and West Virginia can catch up a bit. Practitioners in this state greatly benefit from uniformity between the state and federal rules. I've been able to resolve numerous discovery disputes by referring to federal case law construing identical federal rules. Discovery compromises can lift a great burden off our trial judges. E-discovery is complex and expensive enough WITH clear rules. Our Supreme Court of Appeals can head off a lot of headaches by adopting e-discovery rules similar to these without delay.

Update: An article appears today at Law.com called "Mining E-Discovery Stateside" noting that 7 states have adopted E-discovery amendments, and another 14 are considering them. West Virginia is not on either list. Maybe Rory could give us an update on where we stand.

Interest rate set for 2008 judgments

2008-01-07T22:29:00.000-05:00

According to this press release from the West Virginia Supreme Court of Appeals, the court's Administrative Office has set the interest rate at 8.25 percent for judgments and decrees entered during the 2008 calendar year.

Keeping Up With the Times (New Roman)?

2007-12-03T22:30:00.000-05:00

Steve, at the SW Virginia Law Blog notes that the Virginia Supreme Court is considering requiring lawyers to use Courier, Arial or Verdana in all filings with the court.

What do they have against Times New Roman? And I'm with Steve ... Why in the world would they accept Courier? Personally, I think Comic Sans should be used for all briefs. That would help keep things in perspective. Okay, maybe not for capital cases. For those, Chiller should be the required font.

Fourth Circuit rules employer did not violate WARN Act

2007-10-29T19:43:00.000-05:00

Today, in Long v. Dunlop Sports Group Ams., Inc., No. 06-2143 (4th Cir. Oct. 29, 2007) (PDF), the Fourth Circuit held that a golf ball manufacturer that ceased all production without the required 60 days notice to its employees did not violate the WARN Act where it continued to pay the employees for 60 days or until they took jobs with the successor entity, whichever occurred sooner.

The Worker Adjustment and Retraining Notification Act ("WARN Act"), 29 U.S.C.A. §§ 2101-2109, requires that certain employers provide their employees with written notice 60 days before a plant shutdown causes the employees an employment loss, including an employment termination other than discharge for cause, voluntary departure, or retirement.

In this case, the employer, provided notice of the shutdown at the time of shutdown and for the next 60 days continued to pay full wages and benefits to all but 22 employees. The employer stopped payments to those 22 employees when they began full-time employment with the successor entity.

Those 22 employees sued, asserting that the employer violated the WARN Act and should pay their wages and benefits for the entire 60-day notice period. They raised two arguments.

Argument #1. Plaintiffs suffered an employment termination at the time of the plant shutdown, and Dunlop violated the WARN act by failing to provide them with 60 days notice.

Not so, said the court:

The ordinary meaning of "employment termination" does not encompass a situation in which an employer continues to pay its employees full wages and benefits. Rather, "employment termination" is a "permanent cessation of the employment relationship." . . . When an employer commits to continue payment of wages and benefits to its employees, the employment relationship has not ended.
* * *
in the regulations promulgated pursuant to the WARN Act, the Department of Labor noted that "neither WARN nor the regulations dictate the nature of work to be performed — or whether work must be performed — during a period of employment after notice of an impending plant closing or mass layoff has been given." Worker Adjustment and Retraining Notification, 54 Fed. Reg. at 16,048 (emphasis added).
* * *
Dunlop’s decision to continue paying all benefits and wages for 60 days without requiring work in exchange entirely accords with the language, purpose, and structure of the WARN Act, as well as the Department of Labor’s authoritative interpretation of it. That decision did not constitute an "employment termination" under the Act.

Argument #2. (Alternatively) the Plaintiffs did not voluntarily depart the company when they were "kicked off the rolls" after they accepted new employment with the successor, but rather Dunlop constructively discharged them and thus caused them an "employment loss" at that time.

Again, the courts disagreed:

Although we agree that an "employment termination" occurred at this point, no "employment loss" occurred because the termination resulted from a voluntary departure. See 29 U.S.C.A. § 2101(a)(6).
* * *
the WARN Act requires that covered employers, like Dunlop, provide notice 60 days prior to termination resulting from a plant shutdown. If this notice of termination would make workplace conditions "intolerable," then every employer that adhered to the WARN Act notice requirement would constructively discharge its employees at the moment of notice and so violate the WARN Act. Obviously, Congress did not pass legislation in which an employer’s very compliance with the statute constitutes a statutory violation.

And again, the regulations promulgated pursuant to the WARN Act fatally undermine the employees’ position. In these regulations, the Department of Labor states that it "does not . . . agree that a worker who, after the announcement of a plant closing or mass layoff, decides to leave early has necessarily been constructively discharged or quit ‘involuntarily’." Worker Adjustment and Retraining Notification, 54 Fed. Reg. at 16,048.

The only problem I see with this opinion is that the analysis under argument #1 could be construed to apply outside the WARN Act context. For instance, if an employee who is discharged on August 1 and is given a letter that says it is "effective August 1," but is given two weeks of additional pay and benefits to "soften the blow," would the date of his "adverse employment action" (i.e. his termination) for statute of limitations purposes be August 1 or August 14? I can see employees suing under Title VII using this to try to extend their limitations period.

W.Va. Supreme Court Forces Jefferson County to Approve Annexations

2007-10-26T10:47:00.000-05:00

In State ex rel. City of Charles Town v. County Commission of Jefferson Co., etc., No. 33454 (Oct. 26, 2007), the West Virginia Supreme Court granted a writ of mandamus forcing the Jefferson County Commission to enter the annexation orders of the City of Charles Town. In a nutshell, here is the ruling:

We reject the Commission's argument that it has a duty to determine whether ornot the annexation complies with the applicable statutes. As we explained in City of Morgantown, “Article six sufficiently identifies those who have an interest in annexations as including the governing body of the municipality and the qualified voters and freeholders of the municipality and of the territory to be annexed.” 159 W.Va. at 794, 226 S.E.2d at 904. “A county commission . . . has no interest, personal or official, in the municipal annexation matters which come before it other than to administer the law[.]” Syllabus Point 5, in part, City of Morgantown. Thus, the County Commission of Jefferson County should have entered the Annexation Orders presented to it by the City of Charles Town.

The Jefferson County Commission has been searching for ways to stop growth in the county, and they have rejected annexations from both Charles Town and the City of Ranson, which filed an amicus brief supporting Charles Town's suit. This case confirms they have no right to reject annexation orders.

Northern District of West Virginia to Realign its Divisions

2007-10-26T08:44:00.000-05:00

The following announcement came through the Northern District's CM/ECF system today:

United States District Court
Northern District of West
Virginia
Divisional Realignment

Effective November 1, 2007

Due to numerous changes in the thirty-two counties of the
Northern District, the Court is realigning four counties in the Divisions as
follows:

1) Tyler County will move from the Clarksburg Division and
become part of the Wheeling Division;

2) Preston County will move from the Elkins Division and
become part of the Clarksburg Division;

3) Lewis County will move from the Clarksburg Division and
become part of the Elkins Division; and

4) Mineral County will move from the Elkins Division and
become part of the Martinsburg Division.

I'm not sure what the "numerous changes" are in the 32 counties that comprise the Northern District, but I think the realignment makes sense.

W.Va. Supreme Court finds employer not liable for discrimination, retaliation

2007-10-26T08:38:00.000-05:00

In the first employment decision of the Fall 2007 term, the West Virginia Supreme Court overturned a Human Rights Commission decision that found Colgan Air liable for discrimination against a Muslim Pakistani pilot. Colgan Air v. West Virginia Human Rights, No. 33355 (October 25, 2007). As you may have seen, the case garnered some attention because Justice Starcher commented from the bench during oral argument on the presence of a Pakistani defense lawyer, and later called her "window dressing" and an "argument prop" in his written response to the defendant's motion to recuse.

The per curiam opinion does not blaze any new ground. The Court found that although the plaintiff was subject to harassment due to his national origin and religion, the employer took swift and decisive remedial action against the harassers once it learned of the harassment. A later decision to terminate the plaintiff was due to his failure of a proficiency test, and not because he complained, the court held.

Blankship drops suit against democrats

2007-10-24T12:55:00.000-05:00

This article in today's Charleston Daily Mail notes that Massey CEO Don Blankenship is withdrawing his defamation suit against the West Virginia Democratic Party and its chairperson.

The suit alleged that a democratic TV ad misrepresented a comment he made after 14 miners were killed in the Sago disaster in 2006. Blankenship's attorneys said he felt he made his point, according to the article.

How to create an index of files in the blink of an eye

2007-10-19T16:16:00.000-05:00

Occasionally, lawyers need to send large batches of files to a client or other counsel on CD. Creating an index of those documents in Excel can be a time-consuming endeavor, even if you already have descriptive filenames. Wouldn't it be nice if you could automate the processs?

Enter a free application called DirHTML. This program will automatically generate an index of files from any windows folder on your computer. As an added bonus, the filenames in the index are automatically hyperlinked to the actual files. So, when you click on the filename in the index, the file loads in its native application on your PC.

The program has a number of settings allowing you to sort the index by filenames, dates, extensions or (everyone's favorite) random. It has all sorts of settings that allow you to customize the index to look just the way you want it.

I have used this program to create indexes of hundreds of discovery documents saved as separate PDFs. You simply put the PDFs to be indexed into a folder on your desktop, run DirHTML to create the index, and the index by default will be saved in the same folder as your documents. (The index opens in your web browser.) Then, simply burn a copy of the folder to CD. The program does in one second what would take a secretary or paralegal hours to accomplish. The program works so fast, you'll ask yourself, "Could it possibly have indexed all those files already?"

Obviously, if your files are all named "XR1001," or something similar, your index would be meaningless. But, for those of you in the habit of giving your files meaningful file names such as "10-19-07 Letter to Dr. Smith," this program works great.

The application can be downloaded free from c|net.

W.Va. Supreme Court Releases First 6 Opinions of the Fall Term

2007-10-12T22:04:00.000-05:00

The West Virginia Supreme Court of Appeals released six new opinions today, the first of the new term.

Amanda A. Frymier v. Higher Education Policy Commission, Nos. 32163, 33296, is a "bumping rights" case under W. Va. Code § 18B-7-1. Ms. Frymier, a Glenville State College employee argued unsuccessfully that she was entitled to bump a less senior employee, and that GSC committed favoritism in the treatment of its employees and the decisions made regarding their respective status. The court affirmed.

Christopher Lee Davis v. Thomas McBride, No. 33199, is a criminal case in which the court upheld the State's exercise of a peremptory strike to remove the only African-American juror from the jury panel where the juror announced that she could not be impartial because she had a close relationship with two of the defense witnesses.

Donna Joan Blankenship v. Ethicon, Inc., No. 33224, is a class action arising from defective surgical sutures. The trial court dismissed the case for noncompliance with the Medical Professional Liability Act. The court found that the MPLA did apply, but that dismissal was unduly harsh. In footnote 1, Justice Davis, author of the majority opinion, again invited someone (anyone) to challenge the constitutionality of the pre-suit notice and certificate of merit requirements of the MPLA. Two new syllabus points were announced.

4. The failure to plead a claim as governed by the Medical Professional Liability Act, W. Va. Code § 55-7B-1, et seq., does not preclude application of the Act. Where the alleged tortious acts or omissions are committed by a health care provider within the context of the rendering of “health care” as defined by W. Va. Code § 55-7B-2(e) (2006) (Supp. 2007), the Act applies regardless of how the claims have been pled.

5. Pursuant to W. Va. Code § 55-7B-2(e) (2006) (Supp. 2007), “health care” is defined as “any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to or on behalf of a patient during the patient's medical care, treatment or confinement.”

In Debbie Plumley v. WVDHHR/Office of Health Facility, No. 33287, the court affirmed an order issued by the Department of Health and Human Resources requiring Ms. Plumley to close her “legally unlicensed health care home” because she is prohibited by law from operating such a facility due to her prior conviction for felony incest.

In State of West Virginia v. Thomas Joseph MacPhee, No. 33297, the court affirmed the sentencing of the defendant to the penitentiary for murder of the first degree and conspiracy to commit murder. The court reviewed the evidence and found the sentencing was adequately supported.

And finally, in State of West Virginia v. Richard Allen Haines, No. 33304, the court affirmed the trial court's order amending an indictment to alter the type of controlled substance at issue from one that falls within Schedule I to more accurately reflect that the substance at issue is set forth in Schedule II. The court found that the grand jury did not have the exclusive authority to amend the indictment.

Man with case of beer strapped to mower charged with DUI

2007-10-03T08:25:00.000-05:00

Okay, this case of MUI (mowing under the influence) is almost certain to make the national headlines ... or at least Leno.

Video lottery parlors win injunction

2007-10-01T13:27:00.000-05:00

Video lottery parlors in West Virginia will be allowed to advertise their games openly if Judge Goodwin's decision in WV Association of Club Owners and Fraternal Services, Inc. v. John C. Musgrave (PDF) stands.

In a 40-page opinion, the Court held:

The issue presented is whether the ban on limited video lottery advertising imposed by the Limited Video Lottery Act violates the plaintiff’s First Amendment right to freedom of speech. As a doctrinal matter, the advertising ban does not directly and materially advance a substantial government interest, and is therefore an impermissible restriction on commercial speech under the First Amendment. The advertising ban infringes upon the limited video lottery retailers’ right to speak and impedes the public’s ability to engage in informed political discourse.

I predicted back in November 2003 that we would be seeing litigation on this one, though I was off by about 3 years in the time frame.

This article in the Gazette notes that the suit was filed by the ACLU on behalf of the WV Association of Club Owners.

U.S. Supreme Court to Decide 7 Employment Cases

2007-10-01T13:24:00.000-05:00

The BNA Daily Labor Report (subscription required) notes that the U.S. Supreme Court will open its 2007-2008 term with seven employment cases. Here is a quick overview of the docket:

1. In Federal Express Corp. v. Holowecki, No. 06-1322, the Court will consider whether the submission of an “intake questionnaire” and a notarized affidavit to the EEOC is equivalent to filing a charge of discrimination under the ADEA.

2. In Sprint/United Management Co. v. Mendelsohn, No. 06-1221, the Court will consider a recurring question of proof in employment discrimination cases: whether a district court must admit “me, too” evidence - testimony, by nonparties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff. (In West Virginia, we call them "McKenzie witnesses.")

3. In LaRue v. DeWolff, Boberg & Associates, Inc., No. 06-856, the Court will decide whether under ERISA an employee can recover losses allegedly caused by his employer’s failure to carry out his investment instruction for his 401(k) retirement savings plan. The Fourth Circuit held that Section 502(a)(2) does not permit a 401(k) plan participant to sue for plan losses caused by a breach of fiduciary duty when the losses only affected the individual participant.

4. In Kentucky Retirement Systems v. EEOC, No. 06-1037, the Court will review whether the EEOC showed a prima facie case of age discrimination where a disability retirement plan disqualified employees from receiving benefits where (a) they became disabled after reaching age 55 (b) they held hazardous jobs such as Deputy Sheriff, or (c) they reached age 65, but worked in nonhazardous jobs.

5. In Gomez-Perez v. Potter, No. 06-1321, the Court will consider whether the ADEA prohibits federal government employers from retaliating against employees who file complaints of age discrimination. The Fourth Circuit decided that the ADEA does not include or imply a prohibition against retaliation in federal sector cases as it does private sector cases.

6. In CBOCS West, Inc. v. Humphries, No. 06-1431, the Court will consider whether Section 1981, as amended, allows an employee alleging race discrimination to also bring a retaliation claim.

7. In Preston vs. Ferrer, No. 06-1463, the Court will consider whether the Federal Arbitration Act and Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204 (2006) preempt the holding in this case, voiding an interstate arbitration agreement under the California Talent Agencies Act. If he loses, the defendant, former Florida Judge Alex Ferrer, stands to lose 12% of his compensation gained from his television reality show, Judge Alex, to his manager pursuant to their contract. The appeal is from a California Court of Appeals decision (the state supreme court refused the case) in 2006 that Ferrer did not have to arbitrate the dispute under an arbitration clause in the contract because the California Talent Agency Act gives the state labor commissioner exclusive original jurisdictioneen to determine the legality of contracts between “artists” and their agents. Does the FAA preempt the state law administrative procedure? Tune in and see how the judges rule.

CMS loosens restrictions on restrictive covenants in physician employment agreements

2007-08-28T16:52:00.000-05:00

Bob Coffield notes at the Health Care Law Blog that the Centers for Medicare and Medicaid services released their final Stark III Physician Self-Referral Rule (PDF), which will be published in the September 5 Federal Register.

I was glad to see some clarification of one provision that appeared to ban all sorts of restrictive covenants in physician contracts. Under the existing regulation, 42 CFR §411.357(e)(4)(vi), a physician practice that receives remuneration from a hospital to assist with recruiting a new physician to the area is prohibited from imposing "additional practice restrictions on the recruited physician other than conditions related to quality of care."

The only specific example of a practice restriction that the CMS gave in its previous commentary to the Phase II rules was a noncompete agreement. While this gave clear guidance that covenants not to compete were no longer permitted in employment or other agreements between the physician practices and new physicians (where the hospitals were providing financial recruitment support), there was considerable uncertainty as to what other types of practice restrictions were impermissible. Physicians practices argued that the provision made them less likely to hire new physicians and, as a result, hospitals would be hindered in their abilities to attract new physicians to meet the their communities health care needs.

CMS listened, and is revising §411.357(e)(4)(vi) to read: "(vi) The physician practice may not impose on the recruited physician practice restrictions that unreasonably restrict the recruited physician’s ability to practice medicine in the geographic area served by the hospital." The latest round of commentary (see pages 245-249 of the PDF) provides some much-needed clarity:

Comment: We received many comments concerning the requirement in §411.357(e)(4)(vi) that a physician practice may not impose additional practice restrictions on the recruited physician other than conditions related to quality of care. Commenters (including hospital associations) that addressed the issue of the allowability of non-compete agreements were uniformly opposed to prohibitions on them. They also stated that the restriction limited the utility of the exception and was contrary to State laws permitting such restrictions.

Several commenters suggested that § 411.357(e)(4)(vi) be revised to prohibit only restrictions that prohibit the physician from practicing in the hospital’s geographic service area. The commenters asserted that non-compete agreements are a standard business practice between physician groups and physicians. They stated that, without the ability to enter into non-compete agreements, physician practices would be less likely to take on new physicians and, as a result, hospitals may be unable to attract new physicians, and certain health care needs of the surrounding communities could go unmet. Other commenters questioned whether the following were permitted--

● Restrictions on moonlighting;
● Prohibitions on soliciting patients and/or employees of the physician practice;
● Requiring that the recruited physician treat Medicaid and indigent patients;
● Requiring that a recruited physician not use confidential or proprietary information of the physician practice;
● Requiring the recruited physician to repay losses of his or her practice that are absorbed by the physician practice in excess of any hospital recruitment payments; and
● Requiring the recruited physician to pay a predetermined amount of reasonable damages (that is, liquidated damages) if the physician leaves the physician practice and remains in the community.

Response: We indicated in Phase II that we considered a non-compete clause to be a practice restriction and not a condition related to quality of care (69 FR 16096-16097). Although we did not list other examples of such practice restrictions, we intended to include only such restrictions placed on the recruited physician by a physician practice that would have a substantial effect on the recruited physician’s ability to remain and practice medicine in the hospital’s geographic service area after leaving the physician practice or group practice. We do not consider the restrictions, prohibitions, and requirements that are specifically mentioned in the bulleted points above as falling into the category of having a substantial effect on the recruited physician’s ability to remain in the hospital’s geographic service area. (We note that we may consider a liquidated damages clause requiring a significant or unreasonable payment by the physician leaving the physician practice to have a substantial effect on the recruited physician’s ability to remain in the recruiting hospital’s geographic service area.) Our purpose in prohibiting practice restrictions such as noncompete clauses was to avoid frustrating the purpose of the exception. That is, we intended to discourage physician practices that recruit physicians using hospital funding from making it difficult for a recruited physician to remain in the community and fulfill his or her commitments under the recruitment agreement with the hospital. Allowing a physician to remain in the community not only furthers the health care needs of the community, but also obviates the need for the hospital to enter into a new recruitment agreement to replace the physician.

Upon review of the comments, however, we are persuaded that categorically prohibiting physician practices from imposing non-compete provisions may have the unintended effect of making it more difficult for hospitals to recruit physicians. We are concerned that physician practices and individual physicians may be unable or reluctant to hire additional physicians, regardless of the receipt of financial assistance from hospitals, unless they are able to impose a limited, reasonable non-compete clause. Therefore, we are amending §411.357(e)(4)(vi) to state that physicians and physician practices, may not impose on the recruited physician any practice restrictions that unreasonably restrict the recruited physician’s ability to practice medicine in the geographic area served by the hospital. Although we are not per se conditioning payment for DHS on compliance with State and local laws regarding non-compete agreements, we believe that any practice restrictions or conditions that do not comply with applicable State and local law run a significant risk of being considered unreasonable. (Nothing in §411.357(e)(4)(vi) should be construed, however, as prohibiting a hospital that provides financial assistance to the hiring physician practice from entering into an agreement with the practice that prohibits the hiring physician practice from imposing a non-compete agreement or other practice restriction.)

Thus, under the new rule (assuming it becomes effective), physicians practices will be permitted to bargain for confidentiality agreements, non-solicitation provisions, and reasonable liquidated damages clauses in their employment contracts with new physicians.

Green tech initiatives for law firms

2007-08-10T07:24:00.000-05:00

Brett Burney has a great article at Law.com today, Getting Law Firms to Boot Up Green, that doles out practical advice for reducing power and paper consumption in your law office. His tips include:

Replace your CRT monitor with an LCD. LCDs consume 1/2 to 2/3 less energy, and they look much cooler on your desk.

Turn off that screen saver. "Burn-in" is no longer an issue with modern monitors, and running the screen saver consumes just as much power as full use of the computer.

Adjust your power settings to turn off your monitor, then your hard drive after a set period of inactivity.

Print double-sided. This is a big one. Most people don't know their printers can even print double-sided. Try setting your printer driver to print duplex by default. If you're just printing a draft, a case, a law review article, or an e-mail for your paper file, then why print single-sided? Printing duplex cuts your paper consumption by half.

Use print preview. How many web pages have you printed with one line on the last page?

Brett mentions a couple of applications that will automate some of these settings for you.

Although he doesn't mention it in this article, the ABA has introduced a green tech initiative for law firms called the ABA-EPA Law Office Climate Challenge. This program encourages firms to reduce paper consumption, recycle waste paper, replace incandescent bulbs with compact fluorescents, purchase Energy Star compliant equipment, and more.

A lot of these tips are money saving as well as environmentally beneficial. Larger firms could save thousands of dollars per year "going green." It's just a matter of changing some of our habits.

No Sanctions for Peeking at Jurors Notes, Fourth Circuit Rules

2007-08-08T16:01:00.000-05:00

Two attorneys who copied notes left by jurors in the jury room after the verdict should not have been sanctioned, the Fourth Circuit ruled yesterday in an unpublished opinion, reversing an award of $14,655.40 in sanctions. Thomas v. Shatz, No. 06-1175 (4th Cir. Aug. 7, 2007) (unpublished) (PDF).

Following a defense verdict in a civil jury trial, the courtroom clerk asked counsel for both parties to assist in removing exhibits from the jury room. (Mistake #1)

Apparently, the bailiff broke the cardinal rule to always empty the trash from the jury room after the trial is over. (Mistake #2)

On an easel in the jury room in plain view was a flip chart reflecting the jurors’ views on the evidence presented in the case. One of the defense attorneys asked the other to copy the notes from the flip chart for assistance in future cases. (Who could resist, right?)

Three days later, U.S. District Judge Frederick Stamp was advised by his law clerk that she saw someone copying notes from the jury’s flip chart in the jury room after trial, but that she did not know who he was. Judge Stamp was not pleased. He issued an order directing the parties to identify the person in the jury room and his affiliation with the parties, and scheduled a hearing “to determine what action, if any, should be taken.”

After a hearing, the judge reprimanded and censured the two attorneys for improper conduct in the jury room after the jury had been discharged, and ordered them to pay the fees and costs incurred by plaintiffs in responding to the court’s order and attending the hearing, $14,655.40.

The district court found that the attorneys had committed three violations:

(1) the attorneys had violated "the spirit, if not the letter, of Local Rule 47.01," which prohibits an attorney from “communicat[ing] or attempt[ing] to communicate with any member of the jury regarding the jury’s deliberations or verdict without obtaining an order allowing such communication.” N.D. W. Va. Local R. Gen. P. 47.01.

(2) by reading and copying the jury’s notes on the easel, the attorneys violated Federal Rule of Evidence 606(b), which generally prohibits the use of juror testimony about matters occurring during deliberations to challenge a verdict; and

(3) by intentionally copying the notes, the two acted in "bad faith," engaged in professional misconduct, and breached their professional responsibilities, which he found sanctionable under his inherent authority and 28 U.S.C.A. § 1927 (West 2006).

The attorneys appealed the order, and the Fourth Circuit reversed. The attorneys did not violate Rule 47.01 or FRE 606(b) because no juror was contacted or harassed, nor did the attorneys attempt to challenge the verdict on the basis of what the jurors wrote. The court also found no bad faith motive on the part of the attorneys:

"The notes were left where anyone coming into the jury room could have seen and read them. We have found no rule or law that makes sanctionable the viewing or copying of jurors’ notes after the case has ended, nor are we aware of any authority that confers per se confidentiality upon discussions in a jury room."
* * *
"We cannot fault the lawyers for seeing what was in front of them and remembering what they had seen. Any error, therefore, would have to be in peeking under the top sheet and in copying that information, and in this we simply can find no grievous harm."
* * *
"... the evidence is uncontradicted that the lawyers were motivated by a desire for general professional development rather than any purpose related to this particular case. Consequently, the district court committed clear error..."

In closing, the Court noted that the whole episode could have been avoided "had the clerk of court properly performed his responsibility of retrieving the evidence and exhibits from the jury room and returning them to the attorneys in the courtroom."