CUTTING-EDGE EMPLOYMENT LAW ISSUES

by

Robert B. Fitzpatrick, Esq.

Robert B. Fitzpatrick, PLLC

Universal Building South

1825 Connecticut Avenue, N.W.

Suite 640

Washington, D.C. 20009-5728

(202) 588-5300

(202) 588-5023 (fax)

fitzpatrick.law@verizon.net (e-mail)

http://www.robertbfitzpatrick.com (website)

DISCLAIMER OF ALL LIABILITY AND RESPONSIBILITY

 THE INFORMATION CONTAINED HEREIN IS BASED UPON SOURCES BELIEVED TO BE ACCURATE AND RELIABLE – INCLUDING SECONDARY SOURCES.  DILIGENT EFFORT WAS MADE TO ENSURE THE ACCURACY OF THESE MATERIALS, BUT THE AUTHOR ASSUMES NO RESPONSIBILITY FOR ANY READER’S RELIANCE ON THEM AND ENCOURAGES READERS TO VERIFY ALL ITEMS BY REVIEWING PRIMARY SOURCES WHERE APPROPRIATE AND BY USING TRADITIONAL LEGAL RESEARCH TECHNIQUES TO ENSURE THAT THE INFORMATION HAS NOT BEEN AFFECTED OR CHANGED BY RECENT DEVELOPMENTS. 

THIS PAPER IS PRESENTED AS AN INFORMATIONAL SOURCE ONLY. IT IS INTENDED TO ASSIST READERS AS A LEARNING AID; IT DOES NOT CONSTITUTE LEGAL, ACCOUNTING, OR OTHER PROFESSIONAL ADVICE. IT IS NOT WRITTEN (NOR IS IT INTENDED TO BE USED) FOR PURPOSES OF ASSISTING CLIENTS, NOR TO PROMOTE, MARKET, OR RECOMMEND ANY TRANSACTION OR MATTER ADDRESSED; AND, GIVEN THE PURPOSE OF THE PAPER, IT MAY OMIT DISCUSSION OF EXCEPTIONS, QUALIFICATIONS, OR OTHER RELEVANT INFORMATION THAT MAY AFFECT ITS UTILITY IN ANY LEGAL SITUATION. THIS PAPER DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY READER. DUE TO THE RAPIDLY CHANGING NATURE OF THE LAW, INFORMATION CONTAINED IN THIS PAPER MAY BECOME OUTDATED.  IN NO EVENT WILL THE AUTHOR BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, OR OTHER DAMAGES RESULTING FROM AND/OR RELATED TO THE USE OF THIS MATERIAL.

Law Firm Shareholder Not an Employee

• Kirleis v. Dickie, McCamey & Chilcote, P.C., 2010 U.S. App. LEXIS 14530 (3d Cir. 2010) Kirleis v. Dickie, McCamey & Chilcote, P.C., 2010 U.S. App. LEXIS 14530 (3d Cir. 2010) (applying the Clackamas Gastroenterology factors, the Court found that the plaintiff-class A shareholder/director was not “a mere employee,” relying on the fact that she had the ability to participate in the lawfirm’s governance, the right not to be terminated without a three fourth’s vote of the Board for cause, and an entitlement to a percentage of the firm’s profits, losses, and liabilities. • See also Solon v. Kaplan, 398 F.3d 629, 633 (7th Cir. 2005);

Schmidt v. Ottawa Med. Ctr., C.P., 322 F.3d 461, 467-68 (7th Cir. 2003))

• Lewis v. Humboldt Acquisition Corp., Inc.,634 F.3d 879 (6th Cir. 2011), vacated by, reh’g granted en banc, 2011 U.S. App. LEXIS 11941 (6th Cir. June 2, 2011) (current law of 6th Circuit is that plaintiff must prove that his disability was the “sole reason” for the adverse employment action.) – See also Fitzgerald v. Carr Corp. of Am., 403 F.3d 1134,

1144 (10th Cir. 2005)• Eight circuits apply a “motivating factor” (or a

“substantial cause”) test. Pinkerton v. Spellings, 529 F.3d 513, 518-19 & n.30 (5th Cir. 2008) (collecting cases)

ADA-Motivating Factor Test for Causation

Paycheck Accrual Rule Applies in §1983 Cases

• District Court, applying Supreme Court’s rejection of paycheck accrual rule in Ledbetter, finds plaintiffs’ claims untimely

• In Groesch v. Springfield, Ill., 635 F.3d 1020, 1026 (7th Cir. 2011), the 7th Circuit reversed, holding “that there is no principled reason for applying the paycheck accrual theory to claims arising under Title VII, but not to those under 42 U.S.C. § 1983

FMLA-Burden of Proof on Interference Claim

• Sanders v. Newport, Or., 2011 U.S. App. LEXIS 5263 (9th Cir. Mar. 17, 2011) (holding, in agreement with 8th, 10th and 11th Circuits, that employer carries the burden of proof when defending against denial of reinstatement by asserting a legitimate reason not to reinstate)

• Thornberry v. Mcgehee Desha County Hospital, 403 F.3d 972, 979 (8th Cir. 2005); Smith v. Diffee Ford-Lincoln-Mercury, Inc. 298 F.3d 955, 963 (10th Cir. 2002); Strickland v. Waterworks & Sewer Board of Birmingham, 239 F.3d 1199, 1208 (11th Cir. 2001)

Bankruptcy Discrimination Statute

• 11 U.S.C. § 525(a) applies to government employers and (b) applies to private employers

• Myers v. TooJay’s Mgmt. Corp., 640 F.3d 1278 (11th Cir. 2011) (holding that § 525(b) does not prohibit private employers from denying employment to persons because of their status as a bankruptcy debtor); In re Burnett, 635 F.3d 169 (5th Cir. 2011) (same); Rea v. Federated Investors, 627 F.3d 937 (3d Cir. 2010), petition for cert. filed (April 14, 2011), Docket No. 10-1507 (same)

Title VII Retaliation Claims: Application of Gross

• Smith v. Xerox Corp., 602 F.3d 320 (5th Cir. 2010) (majority holds that Gross but-for causation rule does not apply to Title VII retaliation cases over a vigorous dissent by Judge Jolly.)

Burlington Northern Retaliation Test Satisfied by Aggregation of Events

• Johnson v. The Advertiser Co., No. 2:09-CV-924-MEF, 2011 U.S. Dist. LEXIS 33236 (M.D. Ala. Mar 28, 2011)

• Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998); Leatherwood v. Anna’s Linens Co., 384 Fed. Appx. 853 (11th Cir. 2010)

Where Employer Articulates Multiple Legitimate Reasons For Adverse Action,

Must Plaintiff Present Sufficient Evidence That All of Those Reasons are Pretextual?• Phillips v. Aaron Rents, Inc., 262 Fed.

Appx. 202, 208 (11th Cir. 2008) (“if an employer articulates multiple legitimate reasons for the adverse action, the plaintiff must present sufficient evidence that all of those reasons are pretextual.”)– Accord Ash v. Tyson Foods, Inc., 392 Fed.

Appx. 817, 825 (11th Cir. 2010); Suchite v. Kleppin, 2011 U.S. Dist. LEXIS 48211 (S.D. Fla. May 5, 2011)

Retaliation After Initial Filing with EEOC: Is a New Charge Required?

• Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003); Noland v. Albuquerque, 2011 U.S. Dist. LEXIS 43974 (D.N.M. Apr. 2, 2011) (subsequent filing required)

• Swearnigen-El v. Cook Cnty. Sheriff’s Dept., 602 F.3d 852, 864 n.9 (7th Cir. 2010); Edlebeck v. Trondent Dev. Corp., 2011 U.S. Dist. LEXIS 24711 (N.D. Ill. Mar. 8, 2011) (subsequent filing not required)

Can the Conduct of a Lawyer be Actionable Retaliation?

• Suchite v. Kleppin, No. 10-21166, 2011 U.S. Dist. LEXIS 48211 (S.D. Fla. May 5, 2011) (requesting, in open court, that a judge refer a plaintiff for criminal investigation and possible prosecution or deportation out of retaliatory animus may be unlawful).

WARN Act: Right to Jury Trial?

• Bledsoe v. Emery Worldwide Airlines, Inc., 635 F.3d 836 (6th Cir. 2011), reh’g denied by Bledsoe v. Emery Worldwide Airlines, 2011 U.S. App. LEXIS 5008 (6th Cir. Mar. 9, 2011), petition for cert filed (June 7, 2011), Docket No. 10-1497 (no right to jury trial)

• Bentley v. Arlee Home Fashions, Inc., 861 F. Supp. 65 (E.D. Ark. 1994) (right to jury trial)

Combined Class and Collective Actions Approved

• Ervin v. OS Restaurant Servs., Inc., 632 F.3d 971, 973 (7th Cir. 2011) (Court holds that there is “no categorical rule against certifying a Rule 23(b)(3) state-law class action in a proceeding that also includes a collective action brought under the FLSA.”)

• Wang v. Chinese Daily News, Inc., 623 F.3d 743, 753-55, 760-62 (9th Cir. 2010); Lindsay v. GEICO, 448 F.3d 416, 420-25 (D.C. Cir. 2006)

• De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 307-12 (3rd Cir. 2003) (holding that the District Court presiding over an FLSA collective action should not have exercised supplemental jurisdiction over parallel state-law claims)

Selection of Class Counsel: Court Takes Race and Gender into Account

• In re: Gildan Activewear Inc. Sec. Litig., 2010 U.S. Dist. LEXIS 140619 (S.D.N.Y. Sept. 20, 2010) (ordering Co-Lead Counsel to “make every effort to assign to this matter at least one minority lawyer and one woman lawyer with requisite experience…”)

• In re: JP Morgan Chase Cash Balance Litigation, 242 F.R.D. 265, 277 (S.D.N.Y. 2007) (finding that Co-lead counsel met the Court’s diversity requirement that “at least one minority lawyer and one woman lawyer with requisite experience at the firm be assigned to this matter.”)

Foreign Corrupt Practices Act: “Foreign Official”

• U.S. v. Carson, No. 8:09-cr-00077-JVS-1 (C.D.Cal. May 18, 2011)(denial of motion to dismiss) (holding that, “whether employees of state-owned companies could be ‘foreign officials’ within the meaning of the FCPA turns on whether state-owned companies” are considered instrumentalities. Business entities may be instrumentalities under the FCPA, depending on the outcome of a fact-based inquiry.)

• U.S. v. Lindsey Mfg. Co., No. CR10-01031-AHM, 2011 U.S. Dist. LEXIS 43895 (C.D. Cal. Apr. 20, 2011) (a.k.a. U.S. v. Aguilar) (electrical utility company wholly owned by Mexican government may be an “instrumentality” of a foreign government within meaning of FCPA and officers of same may be “foreign officials” within meaning of FCPA)

Attorneys’ Fees: Application of Buckhannon

• Singer Mgmt. Consultants, Inc. v. Milgram, No. 09-2238, 2011 U.S. App. LEXIS 12106 (3rd Cir. June 15, 2011)(en banc) (over an elegant dissent by Judge Aldisert, as well as another dissent, the majority held that “[b]ecause no enforceable judgment on the merits issued in this case and the State’s actions that mooted the case were voluntary, Buckhannon tells us that [the plaintiff who obtained a TRO] was not a prevailing party.”)

Attorneys’ Fees: Application of Buckhannon Continued

• Nat’l Rifle Ass’n of Am., Inc. v. Chicago, Nos. 10-3957, 10-3965 & 11-1016, 2011 U.S. App. LEXIS 11055 (7th Cir. June 2, 2011) (after the Supreme Court’s Second Amendment Heller decision, Chicago repealed its ordinance banning operable handguns in the home, and plaintiffs requested an award of attorney’s fees. The lower court concluded that plaintiffs were not “prevailing parties,” relying on Buckhannon. The Court of Appeals reversed in a brief opinion, stating: “If a favorable decision of the Supreme Court does not count as ‘the necessary judicial imprimatur’ on the plaintiffs’ position…, what would?” (citation omitted))

Employment Application Shortens Statute of Limitations

• Dunn v. Gordon Food Servs., Inc., No. 3:10-CV-00335-R, 2011 U.S. Dist. LEXIS 13387 (W.D. Ky. Feb 10, 2011) (Court, collecting cases for the same proposition, held that the federal and state courts have repeatedly upheld a predetermined limitations period for bringing legal action against an employer contained in an employment application so long as the limitations period is reasonable.)

Summary Judgment

• Pye v. Nu Aire, Inc., 641 F.3d 1011 (8th Cir. 2011) (internal quotations and citations omitted) (“There is no ‘discrimination case exception’ to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial. Although employment discrimination cases are ‘often fact intensive and dependant on nuance in the workplace, they are not immune from summary judgment.’ If there is no dispute of material fact and reasonable fact finders could not find in favor of the nonmoving party, summary judgment is appropriate.”)

Summary Judgment: New Factual Allegations in Opposition

• Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003) (employee’s allegations in response to employer’s summary judgment motion could not proceed because they were not like or reasonably related to his complaint)

• Viernow v. Euripides Dev. Corp. 157 F.3d 785, 790 n.9 (10th Cir. 1998) (“Issues raised for the first time in a plaintiff’s response to a motion for summary judgment may be considered a request to amend the complaint, pursuant to Fed. R. Civ. P. 15.”)

Oral Notice of Right to Sue

• DeTata v. Rollprint, 632 F.3d 962 (7th Cir. 2011) (Court, based upon the particular facts before it, rejected the defense argument that plaintiff’s receipt of oral notification of its right to sue started the 90-day time period to sue. The Court recognized that there might be circumstances where oral notice can suffice to start the 90-day period. – See, e.g. Ebbert v. Daimler Chrysler Corp., 319 F.3d

103, 116 (3rd Cir. 2003); Kerr v. McDonald’s Corp., 427 F.3d 947, 948-53 (11th Cir. 2005); Ball v. Abbott Advertising, Inc., 864 F.2d 419 (6th cir. 1988))

False Syllogism

• Ochei v. The Mary Manning Walsh Nursing Home Co., Inc., No. 10 Civ. 2548 (CM)(RLE), 2011 U.S. Dist. LEXIS 20542 (S.D.N.Y. Mar. 1, 2011)

• Zucker v. Five Towns Coll., No. 09-CV-4884 (JS)(AKT), 2010 U.S. Dist. LEXIS 85441 (E.D.N.Y. Aug. 18, 2010)

Iqbal and Twombly Plausibility Standard Rejected by State Supreme

Court• McCurry v. Chevy Chase, 233 P.3d 861

(Wash. 2010)(en banc) (the Washington State Supreme Court, sitting en banc, unanimously rejected the Iqbal and Twombly plausibility standard)

Computer Fraud and Abuse Act

• Oil States Skagit Smatco, LLC v. Dupre, 2010 U.S. Dist. LEXIS 126660 (E.D. La. Dec. 1, 2010) (dismissing CFAA claim, because plaintiff did not establish “loss” where economic losses were caused by misappropriation of proprietary information rather than interruption of service, and data restoration costs did not meet jurisdictional threshold.)

• Dedalus Found. v. Banach, 2009 U.S. Dist. LEXIS 98606 (S.D.N.Y. Oct 16, 2009) (holding that employer sufficiently stated claim without alleging “transmission,” because employee’s “‘irretrievabl[e] wiping’ and ‘destruction’ of files from her employer’s computer involved more than merely hit[ting] the delete button.”)

Computer Fraud and Abuse Act Continued

• Lee v. PMSI, Inc., 2011 U.S. Dist. LEXIS 52828 (M.D.Fla. May 6, 2011) (Court held that counterclaim asserting a CFAA violation based on plaintiff’s “excessive internet usage” failed to allege damage to defendant’s computer system and thus failed to state a claim. The counterclaim’s second CFAA claim based on the allegation that plaintiff “visit[ed] personal websites such as Facebook and monitor[ed] and [sent] personal e-mail through her Verizon webmail account” likewise failed to state a claim.)

USERRA: Hostile Work Environment Claim Rejected

• Carder v. Continental Airlines, 636 F.3d 172 (5th Cir. 2011), petition for cert. filed (June 17, 2011), Docket No. 10-1546 (USERRA does not create a cause of action for hostile work environment )

Loss of Consortium Rejected in Title VII

• Barker v. Halliburton, No. 10-20638, 2011 U.S. App. LEXIS 12696 (5th Cir. June 23, 2011) (“an individual’s right to recover under Title VII cannot support a spouse’s loss of consortium claim.”)

One Biased Member of Seven Member Panel Deprives Employee of

Due Process• Sullivan v. Elsmere, No. 467, 2011 Del.

LEXIS 307 (Del. June 17, 2011) (holding that the plaintiff’s unrebutted testimony that a panelist was biased, and the panel’s failure to disqualify the allegedly biased panelist, deprived the employee of due process)

EEOC’s Refusal to Identify the Charging Party

• EEOC o/b/o Serrano, et al v. Cintas Corp., No. 04-40132, 2010 U.S. Dist. LEXIS 18130 (E.D. Mich. Mar. 2, 2010)

• EEOC v. CRST Van Expedited, Inc., 257 F.R.D. 513 (N.D. Iowa 2008)

EEOC Sanctioned for Failure to Conciliate: Sanction is Dismissal

with Prejudice• EEOC v. Bloomberg L.P., No. 07 Civ. 8383

(LAP), 2010 U.S. Dist. LEXIS 92511 (S.D.N.Y. Aug 31, 2010), summary judgment granted in part and denied in part by EEOC v. Bloomberg L.P., 751 F. Supp. 2d 628 (S.D.N.Y. 2010)

Third Circuit Fines EEOC on a “Fishing Expedition”

• EEOC v. Kronos, Inc., 620 F.3d 287 (3d Cir. 2010)

Proposed Expert Testimony by Sociologist on Gender Stereotyping is Excluded

• EEOC v. Wal-Mart Stores, Inc., No. 6:01-CV-339-KKC, 2010 U.S. Dist. LEXIS 13192 (E.D. Ky. Feb. 16, 2010)

Pregnancy Discrimination Encompasses Fertility Treatment

• Govori v. Goat Fifty, L.L.C., No. 10 Civ. 8982 (DLC), 2011 U.S. Dist. LEXIS 33708 (S.D.N.Y. Mar. 30, 2011) (recognizing a claim for sex-based discrimination under Title VII where the plaintiff was terminated after announcing her plans to undergo in vitro fertilization.)

Application of Gross to Two Unlawful Reasons

• Cross v. Clough, No. 04-1253 (RMC), 2010 U.S. Dist. LEXIS 22415 (D.D.C. Mar. 2010).

Application of Gross to Federal Sector ADEA

• Ford v. Mabus, 629 F.3d 198 (D.C. Cir. 2010).

Application of Gross in Title VII Retaliation Cases

• Hayes v. Sebelius, 762 F.Supp.2d 90 (D.D.C. 2011).

Retaliation: Does Accusing a Former Employee of Stealing Trade Secrets

Constitute Retaliation?• Hertz v. Luzanec Am., Inc., No. 04-cv-

01961-LTB-CBS, 2010 U.S. Dist. LEXIS 125351 (D. Colo. Nov. 29, 2010).

Constructive Discharge: Is Deliberateness/Intent an Element Necessary to Establish Constructive

Discharge?

• Lisdahl v. Mayo Found., 633 F.3d 712 (8th Cir. 2011).

• Trierweiler v. Wells Fargo Bank, 639 F.3d 456 (8th Cir. 2011).

• Miller v. Praxair, Inc., 408 Fed. Appx. 408 (2d Cir. 2010), cert. denied 2011 U.S. LEXIS 4890 (June 27, 2011).

• Whitten v. Fred’s, Inc., 601 F.3d 231 (4th Cir. 2010).

Offer of Judgment (Rule 68)

• Lima v. Newark Police Dept., 2011 U.S. App. LEXIS 14741 (3rd Cir. July 19th, 2011)

• (Rule 68 offers of judgment necessarily include “costs and attorneys fees either explicitly or implicitly. When the costs are stated explicitly… the offeror is not subjec to any additional liability. When, however, the offer of judgment is silent as to fees and costs, they must be fixed by the court after the offer of judgment is accepted.”)

Medical Marijauna and the ADA

• Roe v. Teletech Customer Care Mgmt., LLC, 2011 WASH. LEXIS 393 (June 9, 2011)

• Casias v. Wal-Mart Stores, Inc., 764 F.Supp.2d 914 (W.D. Mich. Feb. 11, 2011)

Do the Time Limitations of § 706(e)(1) Apply to Pattern or Practice Suits

Under § 707?• EEOC v. Kaplan Higher Educ. Corp., 2011

U.S. Dist. LEXIS 50035 (N.D. Ohio May 10, 2011) (Holding that time limitations apply to § 707).

• EEOC v. L.A. Weight Loss, 509 F.Supp. 2d 527 (D.Md. 2007) (Holding time limitations do not apply to § 707); EEOC v. Sterling Jewelers, Inc., 2010 U.S. Dist. LEXIS 649 (W.D.N.Y. Jan 6, 2010) (same).

§1985 and §1986 Conspiracy Claims Against D.C.

• Bowie v. Maddox, 2011 U.S. App. LEXIS 12472 (D.C. Cir. 2011) (the Court permitted plaintiff’s section 1985(2) and 1986 conspiracy claims, based upon an alleged conspiracy to prevent him from testifying in support of a former FBI colleague who had initiated a class action on behalf of African-American agents, to go forward.)

Abercrombie “Look Policy” Must Accommodate Muslim Employee

Wearing Head Scarf• EEOC v. Abercrombie & Fitch Stores, Inc.,

2011 U.S. Dist. LEXIS 77181 (M.D.Okla. 2011) (the District Court found an Abercrombie Kids store liable for religious discrimination because the store did not hire a Muslim applicant who wore a head scarf during a job interview)

Must a New Charge Be Filed When Retaliation Occurs After Filing With

EEOC?• Edlebeck v. Trondent Dev. Corp., 2011

U.S. Dist. LEXIS 24711 (N.D.Ill. Mar. 8, 2011) (holding no new charge need be filed); – Accord Swearnigen-El v. Cook Cnty. Sheriff’s

Dept., 602 F.3d 852, 864 n.9 (7th Cir. 2010)

Faragher/Ellerth Defense is Case-Specific, Fact-Intensive Analysis Best

Left to Jury• Aponte-Rivera v. DHL Solutions, Inc., 2011

U.S. App. LEXIS 10507 (1st Cir. May 25, 2011) (the Court held that the Faragher/Ellerth affirmative defense should normally be decided by the jury.)

FLSA Preemption

• Walker v. Serv. Corp. Int’l, 2011 U.S. Dist. LEXIS 39856 (W.D.Va. April 12, 2011) (holding that employees may not bring “state law wage claims where the state law or contract upon which they rely is merely as generous as the FLSA,” but that the FLSA does not preempt claims based on state laws or contracts that are more generous that the FLSA.)

Customer Preference Not Justification for Discrimination

• Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908 (7th Cir. July 20, 2010) (the Court held that anti-discrimination laws trump patient preference regarding the race of healthcare providers.)

Retaliation: Knowledge Requirement Not Satisfied by General Corporate

Knowledge• Henry v. Wyeth Pharmaceuticals, Inc., 616

F.3d 134 (2d Cir. Aug. 4, 2010) (the Court reaffirmed its holding in Gordon v. N.Y. City Board of Ed. 232 F.3d 111, 116 (2d Cir. 2000) that general corporate knowledge that the plaintiff has engaged in a protected activity does not satisfy the knowledge requirement.)

“Due Process” for Accused in Harassment Cases

• “To push employers to immediate and draconian actions is to dispense with any semblance of due process – to require disciplining the accused upon mere accusation… no entity – public or private – should be denied the leeway to sort out right from wrong.”– EEOC v. Xerxes Corp., 639 F.3d 658 (4th Cir. 2011), Wilkinson, J.

Concurring• “I am still asking myself how so many editorialists, so many

great consciences, and, by the way, so many feminists could take it as a given that the word of this woman – of whom we knew only what filtered through the incomplete language of justice – was necessarily infallible.”– Bernard-Henri Levy, “5 Lessons of the DSK Affair”, The Daily Beast,

July 2, 2011