with Robert B. Fitzpatrick

fitzpatrick.law@verizon.net

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 DUE TO THE RAPIDLY CHANGING NATURE OF THE LAW, INFORMATION CONTAINED IN THIS PAPER MAY BECOME OUTDATED.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.

2

Robert (“Bob”) Brian Fitzpatrick is the principal in the law firm of Robert B. Fitzpatrick PLLC in Washington, D.C. where he represents clients in employment law matters. Mr. Fitzpatrick has concentrated his practice in employment law disputes for almost fifty years. He has represented clients in individual and class actions. He has represented clients in employment discrimination, workplace harassment, retaliation, age discrimination, FMLA, ADA, whistleblower, wrongful termination, non-compete, trade secrets, Computer Fraud and Abuse Act, and wage and hour claims, among others. He counsels numerous executive clients regarding employment agreements and compensation issues. He has negotiated literally thousands of severance agreements. He has represented clients in practically every industry and profession, including government employees, employees in the hospitality industry, the high tech/computer, government contractors, transportation, entertainment, sports, financial services, trade associations, academia, and others. He is also a frequent speaker on employment law topics, and has written countless articles on employment law, a few of which can be found on his website (http://www.robertbfitzpatrick.com/publishedarticles.html) and his blog, Fitzpatrick on Employment Law (http://robertfitzpatrick.blogspot.com/). In addition to his law practice, he teaches mythology and Shakespeare to elementary school students.

Prior to entering private practice, Mr. Fitzpatrick served as a staff attorney in the Jackson, Mississippi office of the Lawyers’ Committee for Civil Rights Under Law in the late 1960’s; as a staff attorney in the Office of General Counsel of the Equal Employment Opportunity Commission in the early 1970’s; and with the Washington Research Project (now the Children’s Defense Fund – see http://www.childrensdefense.org/about-us/our-history/) training minority attorneys in the Deep South to litigate employment discrimination cases. He has been in private practice in Washington, D.C. since 1970, having been born in Washington, D.C., and raised in neighboring Chevy Chase, Maryland. He attended Georgetown Preparatory School in North Bethesda, and received his undergraduate and law degrees from the George Washington University. He is the father of three and a grandfather of two. He is an avid hiker and kayaker. He is a Fellow of the College of Labor & Employment Lawyers, having been inducted as a Fellow at the first annual induction ceremony in 1996. He has been listed as one of The Best Lawyers in America® for at least 25 continuous years.

He is admitted to practice in all courts of the District of Columbia (Superior Court, D.C. Court of Appeals, and the Federal District Court of the District of Columbia), the Federal District Court for Maryland, the Federal District Court for the Northern District of Mississippi, the Supreme Court of the United States, the Federal Circuit, the Court of Federal Claims, and the United States Courts of Appeals for the District of Columbia as well as the Fourth and Sixth Circuits.

3

In Hentosh v. Old Dominion Univ., 767 F.3d 413 (4th Cir. 2014) the Court found that where a Professor had brought a Title VII case against a public university alleging discrimination and retaliation, the lower court had subject matter jurisdiction to consider the retaliation claim, but not the related discrimination claim which it held to be untimely.

Duncan, Wynn, J.J., Childs, J. (sitting by designation). Childs, J. wrote for the panel.

4

In Upshaw v. Consumer Prod. Safety Comm’n, No. PWG-12-3130, 2014 U.S. Dist. LEXIS 64787 (D. Md. May 12, 2014), Judge Grimm found that the time-limit for exhaustion of administrative remedies was tolled.

Grimm, J.

5

In Taylor v. Peninsula Reg'l Med. Ctr., 3 F. Supp. 3d 462 (D. Md. 2014) the Court recognized that an intake questionnaire could be considered a charge. Here, the EEOC had lost the intake questionnaire, and the plaintiff did not have a copy. After the date on which plaintiff alleged he had submitted a charge to EEOC it had sent a notice of filing of charge to the defendant indicating that, during the investigative process, a perfected charge would be forwarded to the defendant.

Nickerson, J.

6

In Schlottman v. Perez, 739 F.3d 21 (D.C. Cir. Jan. 3, 2014)the Court addressed the application of the Savings Clause 5 U.S.C. § 7702(f) which holds that "[i]n any case in which an employee is required to file any action...under this section and the employee files the action...with an agency other than the agency with which the action...is to be filed, the employee shall be treated as having timely filed the action...as of the date it is filed with the proper agency."

Here, Plaintiff timely filed with the wrong agency, but untimely, according to the rules of the proper agency. The Court found that the Savings Clause did not salvage Plaintiff's claim as the Court found the Savings Clause measures timeliness with respect to the deadlines for filing with the proper agency.

Tatel, J., Williams, Randolph, S.J.J. Tatel, J. wrote for the panel.

7

In Howard v. Pritzker, No. 12-5370, 2015 U.S. App. LEXIS 77 (D.C. Cir. Jan. 6, 2015), the Court held that the six year limitations period of 28 U.S.C.S. § 2401(a) did not apply to discrimination claims filed by federal employees under Title VII.

Rogers, Brown, J.J., Edwards, S.J. Rogers, J. wrote for the panel.

8

In Niskey v. Johnson, No. 13-1269, 2014 U.S. Dist. LEXIS 137061 (D.D.C. Sept. 29, 2014), reconsideration denied, 2014 U.S. Dist. LEXIS 149493 (D.D.C. Oct. 22, 2014), the Court, without taking a position, alluded to the fact that some courts have held that separate retaliation claims need not be exhausted if the scope of the original investigation would have revealed them anyway, citing Hairston v. Tapalla, 664 F. Supp. 2d 106, 115 (D.D.C. 2009) (collecting cases). The Court further stated that the Hairston rationale applies only after a formal charge is filed, not after a mere meeting with an EEO counselor, but citing as contrary authority Pierce v. Mansfield, 530 F. Supp. 2d 146, 154 n.8 (D.D.C. 2008) which explained that “[t]he plaintiff…need not exhaust his administrative remedies to bring a retaliation claim” where the failure to exhaust stemmed from an untimely EEO counseling session.

Bates, J.

9

In Niskey v. Johnson, No. 13-1269, 2014 U.S. Dist. LEXIS 137061 (D.D.C. Sept. 29, 2014), reconsideration denied, 2014 U.S. Dist. LEXIS 149493 (D.D.C. Oct. 22, 2014), the Court rejected Plaintiff’s argument that a letter to the department’s General Counsel for labor and employment was an adequate substitute for the first exhaustion requirement because the requirement of initiating contact with a Counselor is satisfied when an employee initiates contact with an agency official logically connected with the EEO process and exhibits an intent to begin the EEO process. Johnson v. Peake, 634 F. Supp. 2d 27, 31 (D.D.C. 2009), reconsideration denied, Johnson v. Shinseki, 2011 U.S. Dist. LEXIS 105520 (D.D.C. Sept. 19, 2011).

Bates, J.

10

In Wright v. Kent Cnty. Dept. of Soc. Servs., No. ELH-12-3593, 2014 U.S. Dist. LEXIS 9351 (D. Md. Jan. 24, 2014) the court found that a failure to promote claim which plaintiff argued arose from discriminatory conduct alleged in her EEOC charge (e.g. poor performance reviews) was not exhausted and could not be pursued.

Hollander, J.

11

In WhosHere, Inc. v. Orun, No. 1:13-cv-00526, 2014 U.S. Dist. LEXIS 22084 (E.D. Va. Feb. 20, 2014) the Court granted plaintiff permission to serve process on the defendant located in Turkey by e-mail and via two social networking sites - Facebook and LinkedIn.

Jones, M.J.

12

In Barot v. Embassy of Zambia, 11 F. Supp. 3d 24 (D.D.C. 2014), reconsideration denied, 11 F. Supp. 3d 33, 2014 U.S. Dist. LEXIS 74930 (D.D.C. June 2, 2014) the Court, in dismissing the complaint against the embassy, reiterated the requirement of strict adherence to the service of process rules for service on an embassy under Section 1608 of the Foreign Sovereign Immunities Act.

A. Jackson, J.

13

In Budik v. Ashley, No. 12-1949, 2014 U.S. Dist. LEXIS 51083 (D.D.C. April 14, 2014), aff’d, No. 14-5102, 2014 U.S. App. LEXIS 21460 (D.C. Cir. Nov. 12, 2014) the Court refused to consider affidavits attached to plaintiff’s memo in opposition as “[i]t is a well-established principle of law in this Circuit that [the plaintiffs] may not amend [their] complaint by making new allegations in [the] opposition brief.”

Walton, J.

14

In District of Columbia v. Bamidele, 103 A.3d 516 (D.C. 2014), the Court held that the plaintiffs gave adequate notice of their claims in accordance with D.C. Code § 12-309. Further, the Court held that the “off duty” police officers did not act within the scope of their employment.

Fisher, Mcleese, J.J., Reid, S.J. Fisher, J. wrote for the panel. Reid, S.J. concurred in part, dissented in part.

15

In Williams v. Johnson, No. 12-7074, 2015 U.S. App. LEXIS 690 (D.C. Cir. Jan. 16, 2015), the Court found that the repeal of the § 12-309 notice requirement as to D.C. WPA claims was retroactive.

Kavanaugh, J., Ginsburg, Edwards, S.J.J. Ginsburg, S.J. wrote for the panel.

16

The Human Rights Amendments Act of 2014, Bill No. 20-803, was enacted by the City Council December 2, 2014. The bill was transmitted to the Mayor on January 12, 2015, whose response is due by January 27, 2015. This legislation clarifies that the municipal notice requirement does not apply to claims under the D.C. Human Rights Act against D.C. government agencies. In light of the D.C. Circuit’s decision in Williams v. Johnson, No. 12-7074, 2015 U.S. App. LEXIS 690 (D.C. Cir. Jan. 16, 2015) the issue of retroactivity may be resolved in favor of employees.

17

In Morgan v. City of Rockville, No. 13-1394, 2014 U.S. Dist. LEXIS 151828 (D. Md. Oct. 28, 2014) the Court in an employment discrimination case, denied the plaintiff’s motion to compel the employer to produce an investigative report prepared by an outside law firm.

Schulze, M.J.

18

In In re Kellogg, Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. June 27, 2014), the D.C. Circuit issued a writ of mandamus effectively reversing United States ex rel. Barko v. Halliburton Co., No. 1:05-cv-1276, 2014 U.S. Dist. LEXIS 36490 (D.D.C. March 11, 2014) (Gwin, J.), petition for writ of certiorari filedNovember 25, 2014.

Griffith, Kavanaugh, Srinivasan, J.J. Kavanaugh, J. wrote for the panel.

19

In Burke v. Doe, 91 A.3d 1031 (D.C. 2014), the D.C. Court of Appeals addressed the D.C. Anti-SLAPP Act for the first time. The plaintiff, an attorney, filed a subpoena seeking the identifying information of an anonymous speaker who had posted information about her on Wikipedia. The anonymous speaker filed a motion to quash, which the D.C. Superior Court denied. The anonymous speaker appealed. The Court of Appeals held that denial of a special motion to quash under the statute may be immediately appealed to the Court of Appeals. The Court ultimately held that the Superior Court incorrectly denied the special motion to quash, as the speech in question established a prima facie showing of protection under the statute, which the attorney, a limited-purpose public figure, could not rebut via a showing of sufficient likelihood of success on her underlying claim of defamation.

Easterly, J., Schwelb, Farrell, S.J.J. Easterly, J. wrote for the panel.

20

C4ADS v. Kaalbye, No. 14-2273 (D.C. Super. Ct.) (not yet decided). The instant dispute between the parties centers around information which the Center for Advanced Defense Studies (C4ADS) published about Kaalbye Shipping International’s purported wrongdoing with regards to its shipment of military equipment, as well as its safety and business practices. Kaalbye brought a claim for defamation, which C4ADS is seeking to dismiss under the D.C. Anti-SLAPP statute.

Motley, J.

21

In Forras v. Rauf, No. 12-00282, 2014 U.S. Dist. LEXIS 53960 (D.D.C. April 18, 2014), the plaintiffs sued for defamation, false light, assault, and intentional infliction of emotional distress against defendants seeking to construct an Islamic community center near Ground Zero in New York City. The court held that statements by the defendants in their motion to dismiss, which, among other things, called the lead plaintiff a bigot and his attorney a “publicity hound”, were protected by the judicial proceedings privilege. The Court also held that the defendants were entitled to dismissal under the D.C. Anti-SLAPP Act, as the defendants were acting in furtherance of the right of advocacy on issues of public interest, and the plaintiffs failed to demonstrate a likelihood of success on his claims.

Rothstein, J.

22

In Boley v. Atl. Monthly Group, 950 F. Supp. 2d 249 (D.D.C. 2013), a Liberian official sued a writer for defamation, in connection with magazine articles written about the official’s arrest, investigation, and charging. The Court held (a) that the D.C. Anti-SLAPP Act’s special motion to dismiss provisions applied in federal proceedings where jurisdiction is based on diversity; (b) that the statements were protected by the fair report privilege; (c) the writer’s characterization of the official as “evil” was protected by the First Amendment as imaginative expression and hyperbole; and (d) the official was a limited purpose public figure, and there was no indication that a statement calling him a “warlord” was false or made with actual malice.

Walton, J.

23

In Abbas v. Foreign Policy Group, 975 F. Supp. 2d 1 (D.D.C. 2013), an author of a magazine article wrote about whether the sons of the Palestinian president had enriched themselves at the expense of Palestinians and U.S. taxpayers. A Palestinian business owner sued the writer for defamation. The court granted the defendant’s motion to dismiss under the D.C. Anti-SLAPP Act, on the grounds that (a) the subject matter of the article was fundamentally a matter of public interest; (b) the business owner failed to show likelihood of prevailing on the merits of his claim, because the questions posed by the article were opinions and protected by the First Amendment; and (c) the article’s statements about the Palestinian president did not concern the plaintiff, and were not actionable by him.

Argued before the D.C. Circuit on October 20, 2014. See Abbas v. Foreign Policy Group, LLC, No. 13-7171 (D.C. Cir. 2014).

24

In Song Fi, Inc. v. Google, Inc., No. 14-1283, 2014 U.S. Dist. LEXIS 153436 (D.D.C. October 29, 2014) the Court enforced the forum selection clause set forth in YouTube.com’s Terms of Service.

Collyer, J.

25

In Sharp v. Wash. Hosp. Ctr. Corp., 2013 CA 006216, 2014 D.C. Super. LEXIS 10 (D.C. Super. Ct. Jan. 29, 2014) the Court permitted informal ex-parte communications between plaintiff’s treating physicians and defense counsel, and to divulge health information relevant to the plaintiff’s alleged injuries that would otherwise be protected by the physician-patient privilege and/or HIPAA.

Nash, J.

26

In United States ex rel. Barko v. Halliburton Co., No. 1:05-cv-1276, 2014 U.S. Dist. LEXIS 162680 (D.D.C. Nov. 20, 2014) the Court held that litigation hold notices sent by the CEO to “large groups of employees.” The Court found that “[the notices] can fairly be said to merely describe KBR’s document retention practices, rather than relate any attorney preparations for litigation” and “[t]his is simply not the type of [attorney work product] that is intended to be protected by the privilege…where companies have a duty to preserve electronic documents.” The Court held that “[a]n attorney cannot complain that his preparations for trial have been unfairly affected by his opponent receiving information about document retention practices to which he is entitled.”

Gwin, J.

27

In Oguntoye v. Medstar Georgetown Univ. Hosp., No. 2013 CA 005054 B (D.C. Super. May 6, 2014) (unpub.) the Court found that a alleging discrimination and defamation could not gain discovery regarding written and oral statements made by her former employer to a potential employer because those statements were protected by the “Peer Review” privilege in D.C. Code § 44-801 et seq. While noting that plaintiff “has a right to the minutes and reports of a peer review body…for the limited purpose of adjudicating the appropriateness of an adverse action” the court nevertheless denied discovery because “[p]laintiff seeks this evidence for the broader purposes of adjudicating her claims of defamation…and race discrimination under the D.C. Human Rights Act.”

Mott, J. Contact me at fitzpatrick.law@verizon.net if you want a copy of

this unpublished decision.

28

In Hosch v. BAE Sys. Information Solutions, Inc., No. 1:13-cv-00825, 2014 U.S. Dist. LEXIS 57398 (E.D. Va. April 24, 2014), the Court found that plaintiff, after he decided to sue the employer, engaged in the willful and intentional spoliation of evidence, leading to dismissal with prejudice. This decision adopted the sanctions proposed by Magistrate Judge Buchanan in Hosch v. BAE Sys. Information Solutions, Inc., No. 1:13-cv-825, 2014 U.S. Dist. LEXIS 57574 (E.D. Va. Jan. 22, 2014).

Trenga, J.

29

In Ward v. McDonald, 762 F.3d 24 (D.C. Cir. 2014) the majority found that the plaintiff could not maintain a suit for disability discrimination after determining that she had resigned and failed to provide her employer with information it had requested as part off the interactive process. The dissent split sharply, criticizing the employer for “needlessly prolonging” the interactive process with irrelevant inquiries, and finding that plaintiff had no obligation to tolerate further delays, especially in light of the fact that further delay “was literally endangering her life.”

Henderson, Millett, J.J., Randolph, S.J. Henderson, J. wrote for the panel. Millett, J., dissented.

30

In Solomon v. Vilsack, 763 F.3d 1 (D.C. Cir. 2014) the Court also noted that the plaintiff, who had taken a disability-related retirement, was not prevented from pursuing a disability discrimination claim because her retirement application “never stated that she would have been unable to work if she had been afforded the accommodations she sought.”

Henderson, Millett, J.J., Ginsburg, S.J. Millett, J. wrote for the panel.

31

In Summers v. Altarum Inst., 740 F.3d 325 (4th Cir. 2014) the Fourth Circuit held that Congress intended to cover temporary disabilities under the ADA, thus permitting the plaintiff, who had been injured while exiting a commuter train on the way to work, to proceed with his ADA case.

Motz, Agee, Diaz, J.J. Motz, J. wrote for the panel.

32

In Solomon v. Vilsack, 763 F.3d 1 (D.C. Cir. 2014) the Court rejected defendant’s argument that a flexible work schedule was not, as a matter of law, a reasonable accommodation.

Henderson, Millett, J.J., Ginsburg, S.J. Millett, J. wrote for the panel.

33

In Bellofatto v. Red Robin Int'l, Inc., No. 7:14-cv-00167, 2014 U.S. Dist. LEXIS 177341 (W.D. Va. Dec. 24, 2014) the Court found that a restaurant server with type one diabetes had properly alleged failure to accommodate and retaliation claims under the ADA where she had alleged that the restaurant failed to keep its commitment to allow her to take short breaks to eat or drink something to regulate her blood-sugar levels. She alleged that such breaks were frequently denied and that when she complained to HR, her hours were reduced.

Conrad, C.J.

34

In Hancock v. Wash. Hosp. Ctr., 13 F. Supp. 3d 1 (D.D.C. 2014), the plaintiff, a medical assistant, alleged that Washington Hospital Center (WHC) failed to accommodate her disabling nerve conditions. The Court held that she was not entitled to judgment as a matter of law, as she was medically restricted from performing triage, and therefore a reasonably jury could find that she is not a qualified individual and that the requested accommodation of no triage was unreasonable. The parties stipulated that triage was an essential function of the job. But, the plaintiff argued that WHC had “waived” the essential function argument by allowing her to work on modified duty with no triage responsibilities for a period of time. The Court disagreed, reasoning that an employer temporarily allowing an employee to not perform an essential job function does not irrevocably waive that issue forever.

Wilkins, J.

35

In EEOC v. Howard Univ., No. 12-1186, 2014 U.S. Dist. LEXIS 138036 (D.D.C. Sept. 30, 2014) the Court addressed a claim by the defense that a job applicant for a security guard position was unable, due to dialysis treatments, to work a flexible three-shift schedule which, it claimed, was an essential function. Here, the written vacancy announcement stated that a "minimum requirement" was than an applicant "be able to work nights, weekends, and holidays" as well as rotating day and evening shifts, as assigned. When the applicant stated during an interview that he received dialysis treatment every Monday, Wednesday and Friday before noon, the employer abruptly concluded the job interview. Judge Jackson addressed whether the employer had met its burden to establish an essential function, and whether the record reflected, in a summary judgment context, that the job applicant was unable to perform the essential function. Upon analysis, Judge Jackson denied summary judgment.

A. Jackson, J.

36

In McNair v. District of Columbia, 11 F. Supp. 3d 10 (D.D.C. 2014) the Court held that, upon an employer’s receipt of a request for accommodation “[t]he interactive process begins” and “both the employer and the employee have a duty to act in good faith” to “identify the precise limitations resulting from the disability and potential reasonable accommodations which could overcome those limitations.”

Boasberg, J.

37

In Hill v. Associates for Renewal in Educ., Inc., No. 12-0823, 2014 U.S. Dist. LEXIS 137054 (D.D.C. Sept. 29, 2014) the Court, on cross-motions for summary judgment, found that whether plaintiff actually made a request for an accommodation was a credibility question that was not appropriate for decision on summary judgment.

Bates, J.

38

In Cruz v. Maypa, 773 F.3d 138 (4th Cir. 2014) the Court held that that the failure to post the required FLSA notice tolled the statute of limitations. The plaintiff was from the Philippines and spoke Tagalog. The defense argued that posting of the notice would have been futile because the poster provided by the Wage and Hour division is not available in Tagalog. In response, the Court stated "Besides being offensive, this argument turned on a factual issue which must be construed in Cruz's favor...Cruz has not alleged that she speaks no English, only that her English is limited. Furthermore, this argument would lead to the absurd result of affording fewer protections to non-English speaking employees.“

Gregory, Agee, Keenan, J.J. Gregory, J. wrote for the panel.

39

In Martin v. Wood, 772 F.3d 192 (4th Cir. Nov. 18, 2014), the Fourth Circuit dismissed, on Eleventh Amendment grounds, an FLSA suit brought by an employee against supervisors in their individual capacities of a state-operated hospital for allegedly improperly refusing to authorize overtime for hours worked in excess of a forty-hour week.

Niemeyer, Duncan, Thacker, J.J. Niemeyer, J. wrote for the panel.

40

In Barton v. House of Raeford Farms, 745 F.3d 95 (4th Cir. 2014), the Court held that the plaintiff’s claims under a state wage law were preempted by the Labor Management Relations Act, because their disputes about pay were essentially a disagreement as to how to calculate their “hours worked” under a collective bargaining agreement.

Niemeyer, King, Agee, J.J. Niemeyer, J. wrote for the panel. King, J. concurred in part, dissented in part.

41

In Mock v. Fed. Home Loan Mortg. Corp., No. 1:13-cv-01292, 2014 U.S. Dist. LEXIS 97259 (E.D. Va. July 15, 2014), aff’d, No. 14-1782, 2014 U.S. App. LEXIS 24569 (4th Cir. Dec. 30, 2014), the plaintiff, an Engineering Senior and Engineering Tech Lead, claimed that he had been improperly and willfully classified as exempt under the FLSA. The Court granted the employer’s motion for summary judgment, on the bases that the plaintiff is a highly compensated employee who performs non-manual work, and that he also qualified for the administrative employee and computer professional exemptions under the FLSA.

Brinkema, J.

42

In Hughes-Smith v. Crown Linen Serv., Inc., No. 1:13-cv-1048, 2014 U.S. Dist. LEXIS 28415 (E.D. Va. March 5, 2014) the Court approved the employer's policy whereby it rounded down employee time from one to seven minutes and rounded up employee time from eight to fourteen minutes. The employer tracked hours in fifteen minute intervals.

Cacheris, J.

43

In Dixon v. Prospect Mrtg., LLC, 11 F. Supp. 3d 605 (E.D. Va. 2014), plaintiff, a mortgage loan officer, claimed that she had been misclassified as an exempt employee under the FLSA. The court granted the employer’s motion for summary judgment, on the grounds that the plaintiff was exempt under the “outside sales exemption”, which applies to employees engaged “in the capacity of outside salesman.”

Cacheris, J.

44

In Martin v. U.S., 117 Fed. Cl. 611 (2014) the Court addressed the Federal Government's partial shutdown which lasted from October 1 through October 16, 2013, resulting in a five-day delay in paying some federal workers. The issue before the Court was whether such a short delay in the payment of wages could nonetheless give rise to an FLSA claim for failure to timely pay non-exempt employees. The Court, applying the Supreme Court's "On Time" mandate found in Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 707 (1945) declined to adopt the government's proposed "totality of the circumstances" test and instead held that "timely payment was the usual rule."

Campbell-Smith, C.J.

45

In Abbey v. United States, 745 F.3d 1363 (Fed. Cir. 2014) the plaintiffs pursued an FLSA claim in the Court of Federal Claims, invoking the Court's jurisdiction under the Tucker Act.

Taranto, O’Malley, Wallach, J.J. Taranto, J. wrote for the panel. O’Malley, J. concurred in part, dissented in part.

46

In Lafleur v. Dollar Tree Stores, Inc., No. 2:12-cv-00363, 2014 U.S. Dist. LEXIS 69886 (E.D. Va. May 20, 2014) the Court reaffirmed its denial of defendant’s motion to decertify the collective action which it had certified under the FLSA. Among other reasons, the Court indicated that the decision of the Fourth Circuit in Monahan v. Cnty. of Chesterfield, 95 F.3d 1263 (4th Cir. 1996) was distinguishable because Monahandoes not deal with the similarly situated standard for collective action certification.

R. Jackson, J.

47

In Marshall v. Safeway, Inc., 88 A.3d 735 (Md. 2014), the Court held that where an employer made an unauthorized deduction to employees’ pay, it was not paying all the compensation that was due to the employees, which constituted a violation of the Maryland Wage Payment and Collection Law.

Wilner, J. (ret., specially assigned) wrote for the Court. McDonald, J. concurred separately. Adkins, J. concurred in part, dissented in part.

48

On September 19, 2014 the Mayor signed the D.C. Wage Theft Prevention Act, B20-0671, which is projected to go into effect, following congressional review, on February 26, 2015.

Among its provisions, the Act requires employer notices (and allows for tolling of the SoL in their absence), permits class actions, amends the D.C. Wage Payment & Collection law to cover white collar, executive, and professional employees previously excluded, and provides that fee awards “shall” be made using adjusted Laffeyrates.

49

In Peters v. Early Healthcare Giver, Inc., 97 A.3d 621 (Md. 2014) the Court address enhanced damages where the Employer failed to pay overtime, which the Court characterized as "Wage Theft". First, the Court rejected the employee's argument that there should be a presumption in favor of granting enhanced damages. Next, the Court addressed whether there was a basis for a legitimate, bona fide, dispute, stating that an incorrect legal belief may form the basis for a legitimate, bona fide, dispute. When asked to establish guiding principals that the trial courts should follow when exercising their discretion as to whether, and in what amount, to award enhanced damages, the court's solution was to simply say that "the trial courts are encouraged to consider the remedial purpose of the MWPCL when deciding whether to award enhanced damages to employees.” Finally, the Court affirmed that the WPCL contemplates a maximum award of three times the unpaid wage, not three times the unpaid wage in addition to recovery the unpaid wages.

Adkins, J., wrote for the Court.

50

In Hamden v. Total Car Franchising Corp., 548 Fed. Appx. 842 (4th Cir. 2013) the Court held that contractual language, looking at the contract as a whole, did not encompass the "expiration" of the contract, that is, its natural ending, and thus the non-compete provision was not enforceable, whereas the non-disclosure provision was applicable in perpetuity.

Niemeyer, Gregory, Floyd, J.J. Gregory, J. wrote for the panel.

51

In Telogis, Inc. v. Insight Mobile Data, Inc., No. PWG-14-563, 2014 U.S. Dist. LEXIS 175270 (D. Md. Dec. 19, 2014), the plaintiff and the lead defendant are competing companies. The plaintiff claimed that the lead defendant targeted several of the plaintiff’s employees who were privy to sensitive, confidential, and proprietary information, and who were subject to non-compete agreements. The plaintiff further claimed that those former employees, with encouragement from the lead defendant, violated their non-compete agreements. The Court denied the defendants’ motion to dismiss, on the grounds that the plaintff had stated plausible claims for misappropriation, tortious interference with contractual relations, and unfair competition.

Grimm, J.

52

In Atwood v. CertainTeed Corp., No. 1:13-cv-1006, 2014 U.S. Dist. LEXIS 29183 (E.D. Va. March 5, 2014), aff’d No. 14-1407, 2014 U.S. App. LEXIS 23134 (4th Cir. Dec. 9, 2014) (per curiam), the plaintiff, a roofer, entered into a non-disclosure agreement with a manufacturer of roofs and other building products, in connection with a roofing concept that the plaintiff had developed. When the company later applied for a patent which the plaintiff claimed was based on his concept, and allegedly used the concept to use, develop, and sell new roofing projects, the Plaintiff sued, claiming a violation of the Virginia Uniform Trade Secrets Act. The Court granted the defendants’ motion for summary judgment, on the grounds that the concept had previously been disclosed, and thus was not secret or confidential when disclosed to the company, and not a protectable trade secret.

Hilton, J.

53

In Nicklas Assocs. v. Zimet, No. GJH-14-3777, 2014 U.S. Dist. LEXIS 170071 (D. Md. Dec. 9, 2014) the plaintiff-employer sued the defendant-employee for violating a non-compete requiring that the employee not place employees in creative and marketing communications. The competitive activity was the employee’s decision to update a LinkedIn profile to state that she was a “creative recruiter”. Here, the Court dismissed the employer’s suit because it found that it had failed to show that it had lost any business as a result of the employee’s allegedly competitive activity and, therefore, could not demonstrate irreparable harm. The Court did not determine whether updating a LinkedIn profile was competitive activity.

Hazel, J.

54

In LaPointe v. Sigma Tau Pharms., Inc., 2013 Md. Cir. Ct. LEXIS 9 (Md. Cir. Ct. Sept. 11, 2013) the Court found that, although the “unity of interest” doctrine applies to prevent a parent corporation from being sued for tortiously interfering in a contract between a subsidiary and an employee, that this privilege was “not absolute”. The privilege did not apply where the parent acted against the interests of its subsidiary, or interfered using wrongful means. Here, a fact issue on the latter of these prongs prevented summary judgment in favor of the defendant.

Mason, J.

55

In Endosurg Med., Inc. v. Endomaster Med., Inc., No. GJH-14-2827, 2014 U.S. Dist. LEXIS 175442 (D. Md. Dec. 19, 2014), one of the plaintiff company’s employees resigned, started a competing business, and hired several of the plaintiff’s employees. The company sued the competing company and the former employees, asserting breach of contract, tortious interference, and a number of other claims. The Court granted in part and denied in part the defendants’ motion to dismiss, dismissing some claims but allowing others to proceed. The breach of contract claim, based upon purported violation of a confidentiality agreement through use of plaintiff’s customer information, was dismissed. The court reasoned that “[c]ontacting or advertising to a former employer’s customers, without more, fails to demonstrate the use of confidential information,” that the pool of potential clients in this particular context was well known, and that the evidence demonstrated that the customers contacted were identified and reached through independent means.

Hazel, J.

56

In Higbie v. U.S. No. 2014-5042, 2015 U.S. App. LEXIS 541 (Fed. Cir. Jan. 14, 2015) the Court addressed whether a claim for breach of a confidentiality clause in an ADR agreement was a "money-mandating" claim cognizable under the Tucker Act and, if for more than $10,000.00, properly in the Court of Federal Claims. The majority held that the confidentiality clause at issue here could not give rise to a claim for damages. Judge Taranto, dissenting, cited a litany of cases holding that such clauses can give rise to claims for damages.

Reyna & Lourie, Taranto, J.J. Reyna, J. wrote for the panel. Taranto, J. dissented.

57

In White v. Am. Inst. of CPAs, No. 2013 CA 002623 B (D.C. Super. Ct. April 7, 2014) (unreported) the employer and plaintiff's supervisor, now in retirement, had entered into a confidentiality agreement which penalized the former supervisor for speaking about matters related to his termination from the defendant-employer. When defendant-employer sought to enforce the confidentiality clause to prevent the former supervisor from testifying in plaintiff's age discrimination and retaliation case, the Court enjoined the employer from enforcing the confidentiality agreement with the former supervisor in the event that the former supervisor chose to speak with and provide relevant information to counsel regarding plaintiff's claims.

Dixon, J. E-mail me at fitzpatrick.law@verizon.net for a copy of

this unreported opinion.

58

In Bereston v. United Health Servs., Inc., No. 2014 CA 000416 B (D.C. Super. Aug. 21, 2014) (unpub.) the Court found that the plaintiff could not maintain a cause of action for wrongful termination when she attempted to bring the defendant-employer into compliance with its legal obligations because “none of [the requirements] imposed a distinct legal obligation on her to institute such changes.” (emphasis in original).

Mott, J. Contact me at fitzpatrick.law@verizon.net if you

want a copy of this unpublished decision.

59

In Freeman v. Dal-Tile Corp., 750 F.3d 413 (4th Cir. 2014), the court denied the employer’s motion for summary judgment in a Title VII and Section 1981 race and gender hostile work environment case, because there was a triable issue of fact as to whether the employee was repeatedly subjected to unwelcome statements and conduct that created an abusive atmosphere, of which the employer should have known, but to which the employer failed to adequately respond.

Shedd, Traxler, Niemeyer, J.J. Shedd, J. wrote for the panel. Niemeyer, J., concurred in part, dissented in part.

60

In Boyer-Liberto v. Fontainebleau, 752 F.3d 350 (4th Cir. 2014) (petition for review en banc granted No. 13-1473, 2014 U.S. App. LEXIS 12711 (4th Cir. July 1, 2014)), the Court held that a co-worker’s use of the epithet “Porch Monkey” was not so severe or pervasive as to amount to a racially hostile work environment. The Court also held, adhering to Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006) that Plaintiff could not have reasonably believed that Defendant’s conduct was unlawful and thus the plaintiff did not engage in protected activity, thus not fulfilling that element of a retaliation claim. The latter issue is pending en banc.

Traxler, C.J., Niemeyer, Shedd, J.J. Niemeyer, J. wrote for the panel. Shedd, J. concurred separately. Traxler, C.J. concurred in part, dissented in part.

61

In Brooks v. Grundmann, 748 F.3d 1273 (D.C. Cir. 2014), the Court held that the employee failed to establish a hostile work environment claim under Title VII, because she was unable to show that her supervisors’ actions were sufficiently severe or pervasive. The Court held that selective enforcement of a time and attendance policy did not necessarily rise to a hostile work environment, and the plaintiff’s performance reviews were not uniformly negative.

Brown, Srinivasan, J.J., Wiliams, S.J. Brown, J. wrote for the panel.

62

In District of Columbia v. DOL, Nos. 13-0730, 0737, 2014 U.S. Dist. LEXIS 43194 (D.D.C. March 31, 2014) the Court held that the Davis-Bacon Act did not apply to a privately-funded development of privately-maintained buildings to be occupied by private citizens and businesses. In so holding, the Court reversed the decision of DOL’s Administrative Review Board (“ARB”).

A. Jackson, J.

George C. Leef, “Prevailing Wage Laws: Public Interest or Special Interest Legislation?” Cato Journal, Vol. 30, No. 1 (Winter 2010)

63

In Castro v. Fid. and Deposit Co. of Md., No. 13-818, 2014 U.S. Dist. LEXIS 50904 (D.D.C. 2014), the Court held that the plaintiffs, laborers for a sub-subcontractor, in the construction of a District of Columbia building stated a claim under the Davis-Bacon Act in an effort to collect against the prime contractor’s construction bond, which was secured pursuant to the District of Columbia’s “Little Miller” Act. Defendant insurance companies, who had guaranteed the bond as co-sureties, argued that the plaintiffs were ineligible to sue on the bond and, in any event, had failed to comply with the one-year statute of limitations.

Boasberg, J.

64

In McCaskill v. Gallaudet Univ., No. 13-1498, 2014 U.S. Dist. LEXIS 50934 (D.D.C. April 14, 2014), the Court granted Gallaudet’s motion to dismiss the plaintiff’s intentional discrimination claim under the D.C. Human Rights Act. The plaintiff had alleged that her employer, Gallaudet, had discriminated against her because of her signing a Maryland petition to place a constitutional amendment banning same sex marriage on the ballot, and not based on her membership in any group. The court ruled that the employee’s signing of the petition was not protected activity under the Human Rights Act.

Boasberg, J.

65

In United States ex rel. Badr v. Triple Canopy, Inc., Nos. 13-2190, 2191, 2015 U.S. App. LEXIS 277 (4th Cir. Jan. 8, 2015) the Court reiterated its acceptance of the implied certification theory of FCA, finding that an allegation of non-compliance with a requirement that security guards in Iraq meet certain marksmanship requirements, pled a FCA claim, even though the task-order/contract did not specifically condition payment on compliance with that requirement.

Shedd, Agee, Wynne, J.J. Shedd, J. wrote for the panel.

66

In United States ex rel. Folliard v. Gov't Acquisitions, Inc. & Govplace, 764 F.3d 19 (D.C. Cir. 2014) the Court rejected an FCA claim where the contractor relied on assurances of its suppliers of compliance.

Kavanaugh, Wilkins, J.J., Silberman, S.J. Wilkins, J. wrote for the panel.

67

In United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131 (4th Cir. 2014), the relator claimed that student loan corporations violated the FCA. The Court held that the relator had alleged sufficient facts to demonstrate that the Pennsylvania Higher Education Assistance Agency was not a arm of the state, in part due to the fact that state law expressly provided that obligations of that organization would not be binding on the state.

Traxler, C.J., Motz, Keenan, J.J. Motz, J. wrote for the panel. Traxler, C.J. concurred in part, dissented in part.

68

In Pitts v. Howard Univ., 13 F. Supp. 3d 14 (D.D.C. 2014) the plaintiff, who had worked for Howard University in various finance-related roles, claims that he had complained about various tax and fraud issues, and that the university transferred him to a lesser position with significantly diminished responsibilities. The Court denied Howard’s motion to dismiss, which had argued that the plaintiff had not sufficiently pled either a protected activity nor an adverse employment action under the FCA’s discrimination and retaliation counts.

Boasberg, J.

69

In United States ex rel. Saunders v. Unisys Corp., No.1:12-cv-00379, 2014 U.S. Dist. LEXIS 37830 (E.D. Va. March 21, 2014), the Court held that the relator’s FCA claim was not barred by the public disclosure bar, because the defendant contractor’s reports to the DOD IG’s office were not made public, and while they revealed improper time-billing practices, they did not disclose instances of fraud.

Lee, J.

70

In Jackson v. Nattrass, No. 3:13-cv-535, 2014 U.S. Dist. LEXIS 100567 (E.D. Va. June 25, 2014) , adopted by, objection overruled by, summary judgment granted by, case dismissed by, 2014 U.S. Dist. LEXIS 100491 (E.D. Va. July 22, 2014), the Court granted summary judgment in favor of the employer. The Court found that the plaintiff had not engaged in protected activity, as her alleged opposition was based on a single allegedly sexually explicit conversation in her presence, and where the evidence did not establish that the employee ever affirmatively complained about that conversation to either the defendant or to the person who allegedly made the inappropriate statement.

Novak, M.J.

71

In Kearns v. Northrop Grumman Sys. Corp., No. ELH-11-1736, 2014 U.S. Dist. LEXIS 70881 (D. Md. May 23, 2014), the Court granted Northrop’s motion for summary judgment, thus dismissing the plaintiff’s claims of age discrimination, hostile work environment, and retaliation. The alleged protected activity was based upon an email exchange in which the plaintiff participated, and which discussed matters relevant to the execution and direction of server log monitoring, and when discussions about that topic had taken place. The Court found that the plaintiff could not have had an objectively reasonable belief that he was opposing unlawful activity in that email exchange.

Hollander, J.

72

In Davis v. Billington, No. 10-00036, 2014 U.S. Dist. LEXIS 86271 (D.D.C. June 25, 2014), the plaintiff claimed that the Librarian of Congress had violated his First and Fifth Amendment constitutional rights, by terminating him in connection with an opinion piece that he caused to be published in the Wall Street Journal. In considering, and granting in part and denying in part the defendants’ motion to dismiss on jurisdictional grounds, the Court considered jurisdictional questions, such as whether the Civil Service Reform Act of 1978 precludes judicial review of the plaintiff’s constitutional claims, and what damages the Court had jurisdiction to award.

Walton, J.

73

In Hardy v. Hamburg, No. 11-1739, 2014 U.S. Dist. LEXIS 133274 (D.D.C. Sept. 23, 2014), the plaintiff’s, current and former employees of the FDA, claimed that the FDA and other government agencies and officials had violated their First, Fourth, and Fifth Amendment rights. On consideration of the defendants’ motion to dismiss for lack of subject matter jurisdiction, the court dismissed all of the claims without prejudice, after a consideration of whether the Civil Service Reform Act of 1978 precluded the claims.

Walton, J.

74

In Anthony v. Verizon Va., Inc., No. 130681, 758 S.E.2d 527 (Va. 2014), a divided Virginia Supreme Court held that the lower court erred In holding that the employees’ claims were completely preempted by § 301 of the LMRA.

Lemons, J. wrote for the panel. McClanahan, J. concurred in part, dissented in part. Powell, J., concurred in part, dissented in part.

75

In Shell v. Rock Creek Nursing Ctr., Inc., No. 12 CA 8632, 2014 D.C. Super. LEXIS 3 (D.C. Super. Ct. Feb. 6, 2014) the Superior Court included that the Collateral Source Rule permits the Plaintiff to seek damages for the full amount billed by the hospital, including the amount written off by the hospital “pursuant to the Medicare reimbursement formula.” The Court explained that the collateral source rule permits the plaintiff to seek damages for the full amount billed because “the Medicare program is administered by the Federal Government and is wholly independent of the defendants in this case.”

In so holding, the Court stated that it was not expressing any view concerning the related evidentiary question of whether the defendants will be permitted to challenge the fairness and reasonableness of the initial bills through the presentation of evidence of the actual amount accepted by the hospital as payment in full.

Kravitz, J.

76

In Providence Hosp., Inc. v. Willis, 103 A.3d 533 (D.C. 2014), a tort / negligence case brought by a patient against a hospital, the court rejected the plaintiff’s claim that the judge’s refusal to give a “special susceptibility” instruction was error, and that the damages award was inadequate as a result of that error.

Blackburne-Rigsby, Easterly, J.J., Farrell, S.J.

77

In Chucker v. Berger, [CITE] (Jan. 6/7 2015) (D.C. 2015), the Court rejected a challenge to Colston in which the doctor-defendant requested the Court to overrule it. A panel of the Court summarily affirmed, and quite recently denied a petition for rehearing en banc. The Colston argument is a rhetorical device used by plaintiffs’ counsel in summation on the issue of pain and suffering. In Colston, the Court held that this argument was “not improper” – the argument being as follows: “how much is a healthy eye worth? You cannot restore his vision, but you can compensate him for the loss. Is an eye worth five hundred thousand? Eight hundred thousand? A million? That is for you to say. That is for you to decide.”

78

In Taylor, the Court also stated that it does not believe that Nassar significantly "impacted the analysis where plaintiff asserted a causal connection based on close temporal proximity between the protected conduct and the adverse employment act." In saying so, the Court recognized that post-Nassar courts have not come to agreement as to whether it factors into the analysis only with regard to the prima facie case or also with respect to pretext, citing a District of Maryland decision stating that it was difficult to understand how Nassar's heightened standard of causation could apply at the pretext stage and an Eastern District of New York decision stating that temporal proximity alone was not sufficient at the pretext stage after Nassar.

79

In Jernagin v. McHugh, 1:12-cv-1285, 2014 U.S. Dist. LEXIS 20702 (E.D. Va. Feb. 18, 2014), a non-jury trial, the Court considered whether alleged age bias by a second-line supervisor was the but-for cause of a first-line supervisor giving the plaintiff employee a low performance rating. The Court found that the plaintiff had failed to establish such causation by a preponderance of the evidence.

Lee, J.

80

In Battle v. Truland Sys. Corp., No. 12-106, 2014 U.S. Dist. LEXIS 35534 (D.D.C. March 19, 2014) the Court in footnote eight noted that the D.C. courts have yet to address whether the Nassar causation standard applies in Section 1981 retaliation cases, and the Court declined to resolve that issue in this case because the plaintiff could not satisfy even a “motivating factor” standard, much less a “but-for” standard.

Kollar Cotelly, J.

81

In Love v. D.C. Office of Employee Appeals, 90 A.3d 412 (D.C. 2014) the Court held that the discharged employees’ mere defense of their conduct (the negligent screening of two prisoners who escaped from the D.C. Jail) against a charge of employee misconduct could not be equated with a lack of remorse. Thus, the termination was arbitrary & capricious because the D.C. Government Agency misapplied Douglas-factor ten: whether or not the employee lacked the potential for rehabilitation.

Ferren, S.J., Glickman, Easterly, JJ. Ferren, S.J. wrote for the panel.

82

In D.C. Metropolitan Police Dept. v. D.C. OEA, 88 A.3d 724 (D.C. 2014) the Court reversed the Superior Court’s affirmance of an OEA order which had overturned Plaintiff’s termination from the D.C. Police Department. In so doing, the Court held that OEA had erredin vacating the termination on the ground that his unpaid suspension was an authorized interim administrative suspension rather than a final adverse action and thus employee’s subsequent termination did not constitute “double punishment”. Additionally, the Court held that OEA erred in its Douglas-factor analysis, holding that termination was consistent with the range of penalties permitted for being arrested with a blood-alcohol content over three times the legal limit, serving ten days in jail, and having one’s driver’s license suspended.

Pryor, Fisher, and Thompson, J.J. Pryor, J. wrote for the panel.

83

In Priests For Life v. United States HHS, No. 13-5368, 2013 U.S. App. LEXIS 26035 (D.C. Cir. Dec. 31, 2013) (granting emergency motion for injunction pending appeal); cert. denied 134 S. Ct. 1785 (March 31, 2014).

Per Curiam: Henderson, Tatel, Brown, J.J. Tatel, J. wrote separately.

The Court later found that the plaintiff’s rights had not been infringed. See Priests for Life v. United States HHS, 772 F.3d 229 (D.C. Cir. 2014).

Pillard, Rogers, Wilkins, J.J. Pillard, J. wrote for the panel.

84

In Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013), a sheriff refused to reappoint one of his deputies because the Deputy had “liked” his opponent on Facebook. The Fourth Circuit found that the Facebook “like” constituted “pure speech” and a form of “symbolic expression” which was protected under the First Amendment.

Traxler, C.J., Thacker, J., Hollander, J. (sitting by designation). Traxler, C.J. wrote for the panel. Hollander, J. concurred in part, dissented in part.

85

In Durham v. Jones, 737 F.3d 291 (4th Cir. 2013), a deputy sheriff alerted the press of unlawful activity in the Sheriff’s office after increasing pressure to alter an incident report. The Fourth Circuit held that, under §1983, the deputy had engaged in speech on a matter of public concern, and that the Sheriff was not entitled to qualified immunity in firing the deputy for that conduct.

Motz, Gregory, Davis, J.J. Davis, J. wrote for the panel.

86

In Fonville v. District of Columbia, No. 1:02-cv-02353, 2014 U.S. Dist. LEXIS 51162 (D.D.C. April 14, 2014), the plaintiff, a command member of the police chief’s staff, was demoted after the police chief determined that the plaintiff’s conduct was not consistent with the chief’s exepctations of a person of the plaintiff’s position. The Court found that the plaintiff had not shown falsehoold for the purposes of the plaintiff’s reputation-plus due process claim under the Fifth Amendment.

Sullivan, J.

87

In Yelp, Inc. v. Hadeed Carpet Cleaing, Inc., 752 S.E.2d 554 (Va. Ct. App. 2014), cert. granted, No. 140242, 2014 Va. LEXIS 84 (Va. May 29, 2014), the Virginia Court of Appeals held that the trial court did not abuse its discretion by enforcing a subpoena seeking the identities of anonymous internet communicators who left purported reviews of a company.

Frank, Petty, J.J., Haley, S.J. Petty, J. wrote for the panel.

88

On July 14, 2014, the EEOC by a 3-2 vote, issued new enforcement guidance under the Pregnancy Discrimination Act updating its Compliance Manual's guidance on the PDA. The new guidance covers, among other matters, workplace accommodation requirements in pregnancy cases.

89

On March 6, 2014 EEOC issued the "Religious Garb and Grooming in the Workplace: Rights and Responsibilities" Guidance.

90

In Home Care Ass'n of Am. v. Weil, No. 14-cv-967, 2014 U.S. Dist. LEXIS 176307 (D.D.C. Dec. 22, 2014) the Court addressed a DOL regulation of October 1, 2013 which removed the exemption third party providers of home-care services have had for over forty years from having to pay either minimum or overtime wages to their employees who provide domestic companionship services to seniors and individuals with disabilities or to pay overtime wages to live-in domestic service employees.

Leon, J.

91

In Home Care Ass'n of Am. v. Weil, No. 14-cv-967, 2015 U.S. Dist. LEXIS 4401 (D.D.C. Jan. 14, 2015) the Court found that the association had standing and had successfully challenged DOL's narrowed definition of "companionship services", holding that DOL was attempting to do by regulation what had to be done by legislation.

Leon, J.

92

On July 21, 2014, in EO 13672 the administration required the DOL, DOL to update the rules that implement EO 11246, requiring it to add gender identity and sexual orientation to the categories that EO 11246protects. On December 3, 2014, DOL issued its final rule implementing EO 13672, which should become effective on or about the first week of March, 2015.

93

In Associated Builders & Contractors v. Shiu, No. 13-1806, 2014 U.S. Dist. LEXIS 37106 (D.D.C. March 21, 2014), aff’d No. 2014 U.S. App. LEXIS 23358 (D.C. Cir. Dec. 12, 2014), the Court found that the OFCCP’s rule implementing new regulations under § 593 of the Rehabilitation Act can go into effect on March 24, 2014.

These regulations require that government contractors “take affirmative action to employ and advance in employment qualified individuals with disabilities.”

Sullivan, J.

94

In Assoc. Builders & Contractors, Inc. v. Shiu, No. 13-1806, 2014 U.S. Dist. LEXIS 37106, (D.D.C. March 21, 2014) the association unsuccessfully challenged a final rule issued by DOL's OFCCP called affirmative action and non-discrimination obligations of contractors and subcontractors regarding individuals with disabilities, 78 Fed. Reg. 58,682 (Sept. 24, 2013).

Sullivan, J.

95

In Braddock v. Perez, 584 Fed. Appx. 1 (D.C. 2014) aff’g934 F. Supp. 2d 238 (D.D.C. 2013), the panel entered judgment for DOL, finding that the appeal did not warrant a published opinion. In this matter, three hospitals disputed their classification as subcontractors by DOL’s OFCCP, a classification which requires adherence to the affirmative action requirements of VEVRAA, the Rehabilitation Act, and E.O. No. 11246. The Court found the matter to be moot, in large part because DOL had announced a five-year moratorium on enforcement of these requirements for subcontractors which were carrying out the government’s Tricare program for military personnel and their families.

Per Curiam before Kavanaugh, J. Edwards, and Ginsburg, S.J.J.

96

On December 17, 2014, the congressional review period for the Fair Criminal Record Screening Act, D.C. Bill 20-642, A20-0422 (2014) ended, at which time the Act became an official law.

97

Effective January 1, 2015, Montgomery County Bill 36-14 became effective. This act prohibits private employers from making criminal inquiries on the initial employment application. The new law applies to employers with fifteen or more full-time employees in the county. The law covers applicants seeking paid employment or vocational or educational training regardless of compensation in the county. Current employees seeking promotion with an employer in the county also qualify as applicants.

98

Baltimore City Bill 13-0301 “banned the box”. The legislation became effective on August 5, 2014.

99

On December 4, 2014, Prince George’s County passed Bill No. CB-78-2014 and “banned the box”, effective January 20, 2015.

10

0

Arlington County, while not exactly banning the box, did remove it from its application for county employment. This action of the County Executive does not require board approval.

10

1

In the D.C. Human Rights Amendments Act, Bill No. 20-803, the city council overruled the so-called Armstrong Law.

10

2

The City Council is currently considering the Human Rights Act Notice Requirement Amendment Act, Bill No. 20-321.

10

3

Protecting Pregnant Workers Fairness Act of 2014, D.C. Act 20-458 (2014).

Projected Effective Date: January 21, 2015

Covers all employers, regardless of size.

Requires posting of notice, reasonable accommodation.

10

4

The “Earned Sick and Safe Leave Amendment Act of 2013”, B20-0480, L20-0089, was enacted on January 2, 2014.

Effective as of February 22, 2014, but will not “apply” until included in an approved budget plan. This may not occur until 2017 or 2018.

Leave starts to accrue on date of hire, and may be used after ninety days.

Appears to remove indefinite accrual of sick/safe leave.

Private right of action, strengthens anti-retaliation provisions.

10

5

On October 1, 2014, the D.C. Fair Leave Act of 2014, B20-0734, became effective. This new law allows D.C. Government employees to request up to eight weeks of paid leave for the birth or adoption of a child or to care for a parent, child, or spouse with a “serious health condition.”

10

6

The Maryland Parental Leave Act, S.B. 737, H.B. 1026 (2014) was passed in March of f2014. The Act became effective October 1, 2014.

It covers employers who employ at least 15 but not more than 49 employees in Maryland.

Regional and national employers who employ 15 to 49 employees in Maryland, and more than 50 employees in total, are covered by both the MPLA and the FMLA.

The MPLA provides six workweeks of unpaid parental leave during the 12 months following birth or adoption.

Leave may be denied only to prevent “substantial and grievous economic injury”.

It also allows substitution of paid leave and requires job restoration in most circumstances.

10

7

In Williams v. Johnson, No. 12-7074, 2015 U.S. App. LEXIS 690 (D.C. Cir. Jan. 16, 2015), the Court found that evidence that the city "essentially locked [the employee] into a position that did not allow for career advancement is sufficient to support a finding of constructive discharge."

10

8

In Wilson v. Cox, 753 F.3d 244 (D.C. Cir. 2014), the Court reversed the lower court, finding that two statements constituted direct evidence of age discrimination. Both statements were made by the individual who had made the decision to terminate the resident employee program. The first statement was that the residents were there to “retire” rather than to work, and was found by the Court to be indicative of an inaccurate and discriminatory assumption that older residents would prefer not to work. The second statement was that the supervisor assumed that all older guards, as a class, were “sleepy”. This comment also was found to reflect a discriminatory assumption about older individuals. Finally, the Court held that, on remand, the District Court should consider the employee’s due process claim.

Srinivasan, Kavanaugh, and Edwards, J.J. Srinivasan, J. wrote for the panel.

10

9

In Tatum v. RJR Pension Investment Committee, 761 F.3d 346 (4th Cir. 2014) the Court affirmed the District Court’s holding that the employer had breached its fiduciary duties of procedural prudence when it liquidated two funds held by a retirement plan on an arbitrary timeline without conducting a thorough investigation, and thereby causing substantial loss to the plan. The Court went on to establish that the breach did not cause loss to the plan participants, and found that the District Court erred when it applied the standard that a reasonably prudent fiduciary “could have” made the same decision after performing a proper investigation, holding that the correct standard was to determine whether the fiduciary “would have” made the same decision. Judge Wilkinson dissented.

Motz, Diaz, Wilkinson, J.J. Motz, J. wrote for the majority. Wilkinson, J. dissented.

11

0

In Clark v. Feder, Semo, & Bard, P.C., No. 07-470, 2014 U.S. Dist. LEXIS 99677 (D.D.C. July 23, 2014), the Court denied the defense motion for an award of attorneys' fees, finding that the plaintiff did not act in bad faith in suing her former firm for unpaid retirement benefits and further finding that an award of fees would potentially deter other ERISA plaintiffs from bringing claims for fear of having to pay a large fee award if they were unsuccessful.

Bates, J.

11

1

In Cherry v. Mayor & Baltimore City, 762 F.3d 366 (4th Cir. 2014)plaintiffs, active and retired Baltimore police officers and firefighters who participated in a public pension plan sponsored by Baltimore City mounted constitutional challenges related to the City’s decision to change the manner in which annual increases to pension benefits are calculated, claiming that the changes violated the employees’ rights under the Contract Clause and the Takings Clause of the constitution. The Court affirmed the District Court’s holding that the ordinance did not impair the employees’ rights under the Contract Clause because the ordinance did not prevent them from pursuing a state-law breach of contract claim, nor did it immunize the city from its obligation to pay damages should it be found in breach of contract. In contrast, the Court remanded the Takings Clause claim, directing the District Court to address the substance of that claim.

Keenan, Traxler, and Floyd, J.J. Keenan, J. wrote for the panel.

11

2

In Nyambal v. Int’l Monetary, 772 F.3d 277 (D.C. Cir. 2014) the Court reversed the district court's grant of jurisdictional discovery, finding that the grant of discovery against an immune defendant allowed the Court collateral review. The Court declined to revisit and narrow the scope of the International Organization's Immunity Act, 22 U.S.C. § 288 in its earlier opinion in Atkinson v. Inter-Am. Dev. Bank, 156 F.3d 1335 (D.C. Cir. 1998), reiterating Atkinson's specific ruling that organizations share the same immunity as foreign sovereigns unless it is waived.

Tatel, Brown, J.J., Silberman, S.J. Brown, J. wrote for the panel.

11

3

Wash. Alliance of Technology Workers v. U.S. Dept. of Homeland Sec., No. 14-529, 2014 U.S. Dist. LEXIS 163285 (D.D.C. Nov. 2014)

Huvelle, J.

11

4

In Green v. Zachry Indus., Inc., No. 7:11-cv-00405, 2014 U.S. Dist. LEXIS 40452 (W.D. Va. March 25, 2014)the court discussed, and collects cases, as to whether a district court should retain jurisdiction or dismiss the case when it compels arbitration, noting that the Fourth Circuit has, in Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 376 n.18 (4th Cir. 2012) acknowledged tension between its decision in Hooters, Inc. v. Phillips, 173 F.3d 143 (4th Cir. 1999) where it indicated that a stay is required with Choice Hotels Int'l, Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707, 709-10 (4th Cir. 2001) where it approved dismissal when "all the issues presented are arbitrable".

The Court also rejected the NLRB's decision in Horton. Conrad, J.

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In Case New Holland, Inc. v. EEOC, 2014 U.S. Dist. LEXIS 166439 (D.D.C. Oct. 17, 2014) the National Association of Manufacturers contended that EEOC violated the administrative procedure act when it e-mailed to over 1,000 business e-mail addresses commencing a nationwide review of the businesses under the ADEA. the Court found that NAM lacked standing to pursue the claim.

Walton, J.

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In Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) the Court found that individuals working as open-range herders had Article III standing to challenge a Department of Labor rule which led to an increased supply of labor, and thus competition, under the “competitor standing doctrine”. This doctrine provides that parties suffer an “injury in fact” when agencies take actions which permit increased competition.

Tatel, Brown, Millett, J.J. Brown, J. wrote for the panel.

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In Macy v. Holder, Appeal No. 0120120821 (April 20, 2012) the EEOC stated that Gender encompasses both a person's biological sex, and the cultural and social aspects associated with masculinity and femininity. Accordingly, EEOC has held that discrimination against an individual because they are transgendered is sex discrimination.

Bernadette B. Wilson, Acting Executive Officer.

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In Jones v. D.C., 879 F. Supp. 2d 69 (D.D.C. 2012) the OHR dismissed plaintiffs' administrative complaints for administrative convenience after OHR had found probable cause. The Court stated: "the best that can be said is that DCOHR decided to not allocate its resources to a matter that both parties seemed to prefer litigating in federal court. Such a dismissal was unrelated to the plaintiffs' claims or the availability of agency resources to litigate plaintiffs' complaints administratively...this court will leave to another day or, preferably, the D.C. Court of Appeals, to determine whether, having found probable cause, D.C. OHR can claim administrative convenience to decline to proceed to a merits hearing merely because both parties prefer to move the litigation to a court."

Collyer, J.

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In EEOC v. Propak Logistics, Inc., 746 F.3d 145 (4th Cir. 2014) the panel affirmed an award of over $100,000.00 in fees to the employer based upon a finding that EEOC was objectively aware that teh accused division of the company had closed, barring injunctive relief, and that EEOC had failed to identify an aggrieved class, thus preventing an award of damages.

Keenan, Diaz, Wilkinson, J.J. Keenan, J. wrote for the panel. Wilkinson, J. concurred separately.

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In McAfee v. Boczar, 738 F.3d 81 (4th Cir. 2014), the Court considered the reasonableness of an attorneys’ fees award to a prevailing party in a case brought under Section 1983, vacated the fee award of $322,340.50, and remanded for an award of $100,000, exclusive of costs.

Niemeyer, King, Duncan, J.J. King, J. wrote for the panel.

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In Friolo v. Frankel, 438 Md. 304 (Md. 2014), the Court held that when awarding plaintiff employee attorneys’ fees under Maryland wage laws, it was error to bar any award for time reasonably expended in pursuing two appeals because it was reasonable to pursue the appeals, which the employee won and which established precedents.

Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Wilner, Alan M. (retired, specially assigned), J.J. Wilner, J. wrote for the panel.

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In Howard v. Pritzker, Nos. 12-5370, 5392, 2015 U.S. App. LEXIS 77 (D.C. Cir. Jan. 6, 2015) the government argued that the six-year statute of limitations for suits agains the United States, contained in 28 U.S.C. 2401(a)applies to claims filed pursuant to Title VII regardless of the status of the administrative proceedings. The Court rejected the argument, holding that the limitation does not apply to Title VII actions brought by federal employees.

Rogers, Brown, J.J., Edwards, S.J. Rogers, J. wrote for the panel.

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In Rice v. Alpha Sec., Inc., 556 Fed. Appx. 257 (4th Cir. 2014) the Court addressed the Virginia state court non-suit rule. Here, plaintiff initially filed in state court, and did not effect service on the defendant, but instead filed a non-suit which plaintiff then had the state-court vacate. Whereupon, the defendant removed the case to federal court and moved to dismiss, arguing that plaintiff had failed to effect service under state law on a timely basis. Initially, the district judge agreed with the defense and dismissed the case. On reconsideration, the Court reversed itself and reinstated the case. The Fourth Circuit affirmed finding that, given the non-suit rule, plaintiff had not failed to make timely service and the court afforded plaintiff, on remand, the full federal time limit to effect service.

Per Curiam

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In Osei v. Coastal Int'l Sec., Inc., No. 1:13-cv-1204, 2014 U.S. Dist. LEXIS 162289 (E.D. Va. Nov. 19, 2014) the Court found that a government contractor taking over a prior contractor's business for the agency was a successor-in-interest and thus, for eligibility purposes under the FMLA, the employee could "tack on" time worked with the predecessor.

O'Grady, J.

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The Virginia State Bar has sought comments on additions to two ethics rules highlighting the need for a minimum level of technical sophistication in the digital age. One change would add to rule 1.1 addressing the competence of lawyers stating that lawyers should engage in continuing study and education in pleading the benefits and risks associated with technology relevant to the lawyer's practice. The other change would add a new paragraph to Rule 1.6, governing confidentiality, which states as follows: "A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information protected under this rule."

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Pro Concepts, LLC v. Resh, No. 2:12-cv-573, 2014 U.S. Dist. LEXIS 18416 (E.D. Va. Feb. 11, 2014)

Davis, J.

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Mohammed v. Central Driving Mini Storage, No. 2:13-cv-469, 2014 U.S. Dist. LEXIS 73431 (E.D. Va. May 28, 2014)

R. Jackson, J.

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Bauer v. Holder, 25 F. Supp. 3d 842 (E.D. Va. 2014)

Ellis, J.

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Patel v. Barot, No. 4:13-cv-59, 2014 U.S. Dist. LEXIS 81265 (E.D. Va. June 13, 2014)

Morgan, J.

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Nucor Corp. v. Brown, 760 F.3d 341 (4th Cir. 2014)

Gregory, J. directed entry of the order, with which King, J. and Agee, J. concurred.

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Williamson v. Bon Secours Richmond Health Sys., Inc., 3:13-cv-704, 2014 U.S. Dist. LEXIS 102602 (E.D. Va. July 28, 2014)

Gibney, J.

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In Budik v. Ashley, No. 12-1949, 2014 U.S. Dist. LEXIS 51083 (D.D.C. April 14, 2014) the Court found that it lacked subject matter jurisdiction over tort claims stemming from allegedly false statements made by the plaintiff's supervisor on the grounds that the United States had not waived sovereign immunity as to such tort claims, that is, libel, slander, misrepresentation, and deceit claims.

Walton, J.

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In McBeth v. Shearer's Foods, Inc., 1:12-cv-00086, 2014 U.S. Dist. LEXIS 29085 (W.D. Va. March 6, 2014) the Court held that a simple allegation of pattern and practice discrimination did not, without more, open discovery to information related to individuals outside the normal realm of comparators, discussing Lowery v. Circuit City Stores, Inc., 158 F.3d 742 (4th Cir. 1998).

Sargent, M.J.

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In Peart v. Latham & Watkins, LLP, 985 F. Supp. 2d 72 (D.D.C. 2013) the Court, without deciding, stated that "[t]he D.C. Court of Appeals has avoided addressing this issue on at least two occasions." Here, according to the Court, the plaintiff did not file a charge with OHR but instead filed her charge with EEOC, which administratively transferred it to OHR, under the agencies' work-sharing agreement. The Court stated "[t]he unnoticed issue is whether Ms. Peart's EEOC filing constituted a filing with OHR under the meaning of D.C. Code § 2-1403.16(a)."

Collyer, J.

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In White v. Golden Corral of Hampton, LLC, No. 4:13-cv-27, 2014 U.S. Dist. LEXIS 33795 (E.D. Va. March 14, 2014) the Court denied the defense motion for summary judgment even though plaintiff failed to comply with local rule 56(b), which requires that briefs in opposition to summary judgment must contain a specifically captioned section listing all material facts contended to be in dispute with citations to the record which support the existence of the dispute. In deciding not to grant the defense motion despite the non-compliance, the Court stated that it "will not elevate form over substance."

Jackson, J.

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In Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013) where the plaintiff's attorney had directed his paralegal to instruct the client to delete content from his Facebook page that depicted him as something less than a grieving widower in a wrongful death case the Court award sanctions.

Powell, J. wrote for the court. McClanahan, J. concurred in part, dissented in part.

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In Scott v. Family Dollar Stores, Inc., 733 F.3d 105 (4th Cir. 2013) the the majority distinguished Wal-Mart Stores, Inc. v. Dukeson the ground that it was merely permitting access to court by allowing the amended complaint. Judge Wilkinson, dissenting, stated “The majority acts as a cheerleader for the amended complaint, glossing over its gross incompatibility with the original and casually dismissing the threat of prejudice as ‘overstated.’”

Wilkinson, Gregory, Keenan, J.J. Gregory, J. wrote for the panel. Keenan, J. concurred separately. Wilkinson, J. dissented.

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In In re Johnson, 760 F.3d 66 (D.C. Cir. 2014) the Court rejected the secret service's argument that the district court's class certification decision merited interlocutory review under Civil Rule 23(f). The Court distinguished Wal-Mart Stores, Inc. v. Dukeson the grounds that plaintiffs were pursuing an "issue class", that is, every class member was allegedly evaluated under the same criteria and scored under the same numerical system.

Garland, C.J., Wilkins, J., Ginsburg, S.J. Ginsburg, S.J. wrote for the panel.

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In Sissel v. United States HHS, 760 F.3d 1 (D.C. Cir. 2014) the Court rejected the plaintiff's claim that the mandate was unconstitutional because the legislation originated in the House of Representatives.

Rogers, Pillard, Wilkins, J.J. Rogers, J. wrote for the panel.

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In Spacesaver Sys. v. Adam, 98 A.3d 264 (Md. 2014), the Court found that the employee’s employment with a company was properly found to not be at-will, as her employment agreement was a formal written employment contract executed by each of the company’s shareholders, was clear in its terms, and had a for-cause termination clause.

Adkins, J. wrote for the Court.

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In Antonio v. SSA Sec., Inc., 749 F.3d 227 (4th Cir. 2014), a panel of the Fourth Circuit certified the following question to the Maryland Court of Appeals:

Does the Maryland Security Guards’ Act (Md. Code Ann., Bus. Occ. & Prof. § 19-501) impose liability beyond common-law principles of respondeat superior such that an employer may be responsible for off-duty criminal acts of an employee if the employee planned any part of the off-duty criminal acts while he or she was on duty?

King, Wynn, Floyd, J.J. Floyd, J. directed entry of the order.

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In Mulrain v. Castro, 760 F.3d 77 (D.C. Cir. 2014), the Court held that an African-American attorney at HUD had failed to show that racial discrimination resulted in the promotion of a white attorney who had not applied for the job. Here, HUD offered as its explanation its contention that a senior HUD official who was unaware of plaintiff's application, had feared that the white attorney, deemed a "superstar", was about to leave the agency and desired to retain the white attorney by offering her an unsought promotion. The Court declined to compare the two attorneys because the HUD senior official had not even known of plaintiff's candidacy and her allegedly significant superior qualifications.

Griffith, Kavanaugh, Pillard, J.J.

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Self-Storage Mgmt. Masterson v. AAAA up, LLC, No. 2:12-cv-697, 2014 U.S. Dist. LEXIS 6476 (E.D. Va. Jan. 14, 2014) the Court found that two age-related statements made by the manager responsible for terminating plaintiff did not provide evidence of discriminatory animus because they were “unrelated to the decision process itself[.]”

Leonard, M.J.

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