As the DOL’s press release succinctly says, the “FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period to care for loved ones or themselves”. (29 U.S.C. 2612; 29 C.F.R. 825.200).

What is a “son or daughter”?

The key issue was when the child fell into the definition of “son or daughter” for the employee seeking leave. When does the law recognize the child as the “son or daughter” of the employee?

Administrator’s Interpretation 2010-3 sets out the statutory language, and same-sex couples now have the necessary relationship to the child through the status of being “in loco parentis”, which more or less means someone who “stands in the place” of the parent. Here is the discussion in the Administrator’s Interpretation:

The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter,” “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and to care for a son or daughter with a serious health condition. See 29 U.S.C. § 2612(a)(1)(A) – (C); 29 C.F.R. § 825.200. The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122(c), 825.800.

(emphasis added).

“Son or daughter” applies to same-sex couples

The Administrator’s Interpretation then explains that “son or daughter” was intended in the FMLA to apply to children in non-traditional family settings:

Congress intended the definition of “son or daughter” to reflect “the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother. Increasingly, those who find themselves in need of workplace accommodation of their child care responsibilities are not the biological parent of the children they care for, but their adoptive, step, or foster parents, their guardians, or sometimes simply their grandparents or other relatives or adults.” See S. Rep. No. 103-3, at 22. Congress stated that the definition was intended to be “construed to ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to that child.” Id.

In loco parentis is commonly understood to refer to “a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties.” Niewiadomski v. U.S., 159 F.2d 683, 686 (6th Cir. 1947) (quotations omitted). Black’s Law Dictionary defines the term in loco parentis as “in the place of a parent.” Black’s Law Dictionary 803 (8th ed. 2004). “The key in determining whether the relationship of in loco parentis is established is found in the intention of the person allegedly in loco parentis to assume the status of a parent toward the child. The intent to assume such parental status can be inferred from the acts of the parties.” Dillon v. Maryland-National Capital Park and Planning Comm’n, 382 F. Supp. 2d 777, 787 (D. Md. 2005), aff’d 258 Fed. Appx. 577 (4th Cir. 2007) (citations omitted; emphasis in original).

(emphasis added). In then follows that

an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.

The press release summarizes the effect of the Administrator’s Interpretation to apply the FMLA leave rights to employees in non-traditional parental relationships, including same-sex couples:

As the interpretation makes clear, an uncle who is caring for his young niece and nephew when their single parent has been called to active military duty may exercise his right to family leave. Likewise, a grandmother who assumes responsibility for her sick grandchild when her own child is debilitated will be able to seek family and medical leave from her employer. And an employee who intends to share in the parenting of a child with his or her same sex partner will be able to exercise the right to FMLA leave to bond with that child.

(emphasis added).

Employers will obviously want to review their FMLA leave policies in light of Administrator’s Interpretation 2010-3.  Click here for the DOL’s Compliance Assistance page for the FMLA.

Prepared by Drew M. Capuder (contact information); Voice: 304-333-5261

Retaliation law in recent years has been one of those developing areas, and much more often than not the movement in the case law has been in the direction of expanding protections for employees against retaliation. The US Supreme Court especially has focused on retaliation law, and has “plugged gaps” in the law for federal employees to include protection for retaliation claims, has lowered the threshold for what is actionable retaliation, and has broadened the definition of “opposition” which entitles employees to protection.

One of the dangers for employers from retaliation claims is that, after an employee complains about alleged discrimination, the employer may be guilty of retaliation even if a jury decides there was no discrimination to support the employee’s original complaint. An employee may succeed in a retaliation claim as long as his complaint was made in good faith, even if the employee was wrong about the complaint of discrimination.

In the prior 2 years at the annual conference for WVELA, I spoke and wrote articles on awards of attorneys’ fees under employment discrimination laws, and on age discrimination.

I’ve recently added a toolbar which will appear at the bottom of your browser when you are viewing my blog. The toolbar is from a company named Wibiya.

The image above is of the left and center part of the toolbar. Some of the buttons are self-explanatory, and I have only a few explanatory notes:

• The blue circle button, with pop-up text “Photo Gallery”, shows a set of photographs that I took of the Marion County Courthouse, in Fairmont, West Virginia. When I was a kid, I wanted to be a professional photographer, and then I wanted to be an architect. So it’s still fun to take pictures of beautiful buildings. By the way, the 5 courthouse photos at the top of each page of my blog are also photos I took of the Marion County Courthouse. We then tinted the photos blue (except for the American flag) to make them look artsy.
• The YouTube button shows alternative versions of video when I was interviewed by WBOY Television in Clarksburg, West Virginia, during the lawsuit West Virginia University filed against its former coach, Rich Rodriguez. In the not-too-distant future, I hope to put additional videos on Capuder Fantasia PLLC’s web site about points of interest in employment law, and as we get those videos finished they will be available on this YouTube button.

Written by Drew M. Capuder (contact information); Voice 304-333-5261

I will be speaking (and presenting articles) on “Sexual, Racial, and Other Harassment in the Workplace” and “ADA and FMLA Update”.

Here is the full agenda, and here is the faculty information. The seminar will provide around 6-8 hours of continuing education credit for lawyers (I don’t know the exact number, but the seminar is a full day).

You can register for the the seminar online. For further information, you can contact Sterling, and their number is 715-855-0498.

Drew M. Capuder (contact information); Voice: 304-333-5261

The Facts–Sex at Work

These are the facts according to the complaint in the lawsuit: Tricia Roth was a respiratory therapist working at DeFeliceCare, Inc. in Ohio County, West Virginia, and she was about to go on vacation. She was directed by Leslie DeFelice (the male boss/owner) to come to work sometime during the weekend preceding her vacation in June 2006. She was not told a specific time to come to work during that weekend. When she came to work as ordered, she “observed Defendant [Leslie] DeFelice and/or Michelle Kelly partially clothed and in a compromising position”. Mr. DeFelice instructed Ms. Roth to go into a conference room and wait–meanwhile Mr. DeFelice and the other employee got all their clothes back on. Mr. DeFelice then talked to Ms. Roth and told her to forget about what she had just seen, and threatened Ms. Ross with the loss of her respiratory therapy license and the loss of her employment.

Ms. Roth then went on vacation. When she got back from vacation and returned to work, she had a meeting with Mr. DeFelice that didn’t go well. Ms. Roth told Mr. DeFelice that she hadn’t told anyone about his sexual encounter at work. Mr. DeFelice proceeded to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.

Ms. Roth Files Suit–Case Dismissed

Ms. Roth then filed suit on legal theories centering around sex discrimination and sexual harassment, and–bada bing!–the case promptly got dismissed.

Ms. Roth’s complaint (the document which starts the lawsuit and describes the plaintiff’s allegations) focused on the sexual incident I have described above, but also made allegations about other sexual harassment–I will discuss those details below.

Motion to Dismiss Under Rule 12(b)(6)

The important thing to understand about the appeal to the WV Supreme Court is that the defendants immediately filed a motion to dismiss (under Rule 12(b)(6)) based only on the complaint filed by Ms. Roth–there was no evidence that had been accumulated through depositions, affidavits, and the like. The basis for the motion to dismiss was that Ms. Roth had “failed to state a claim upon which relief may be granted.” That motion is based solely “on the pleadings”, and is based on no other evidence.

A motion to dismiss on the pleadings must assume the truthfulness of the allegations in the plaintiff’s complaint, and argues roughly this: even if everything the plaintiff says is true, she still can’t win, because there is nothing about those allegations that would allow her any recovery in court.

Let’s use this as an example to illustrate a motion to dismiss on the pleadings (under Rule 12(b)(6)):

• Suppose my boss fires me, and hands me a notarized resolution issued by the board of directors of my corporate employer saying: “We hereby fire Drew M. Capuder because his socks don’t match. We hate people that can’t clothe themselves with minimal competence. We infer from that characteristic that such people are incompetent employees. Furthermore, we, the board of directors and management of Drew’s employer, harbor an intense personal hatred for such people. We fire Drew with the greatest joy and abandon.” My boss hands me the board resolution and says “you’re fired, and the company security will escort you out immediately”. I say to my boss, “that’s discriminatory”. My boss replies: “Of course it is–we despise people who can’t dress themselves properly”. My boss, who recorded the termination meeting, then hands me a nicely packaged CD recording of the termination meeting as the company security guard quickly ushers me out of the building.
• I file suit for discrimination and wrongful discharge. I initiate the lawsuit by filing a document called a “complaint” which sets out a brief statement of the facts and the legal theories on which I am relying.
• My employer’s defense counsel looks at my complaint, and says to herself: “I don’t have to answer this silly-assed lawsuit. I will file a motion to dismiss, because there is nothing about Drew’s idiotic allegations that our legal system recognizes as valid legal claims”. So the defense lawyer files a motion to dismiss, based only on the allegations in my complaint, under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. This is the same kind of motion that the defendants filed against Ms. Roth.
• The trial judge reviews the motion to dismiss and my response. The trial judge then takes about 6 nanoseconds to decide that the defendant’s motion should be granted, and–bada bing!–my case is dismissed. This is the same type of decision which the judge made in Ms. Roth’s case (and the correctness of that decision was the issue on appeal).
• The trial judge in my case made the correct decision because, assuming (for purposes of the motion to dismiss) everything I said in my complaint was true, there is nothing about those allegations that establishes any sort of recognized claim for wrongful discharge. In other words, my complaint would not allow me to win in court. It’s as simple as that.
• Contrary to some popular understanding, the law does not prohibit all forms of employment discrimination. The law only prohibits employment discrimination in which the employer’s decision is based on protected characteristics. Those characteristics include race, age, gender, national origin, disability, and religion (and there are other characteristics like certain types of whistle blowing, military service, jury duty, etc.). So if my employer discriminates against me because my socks don’t match, there is nothing about being a fashion moron that constitutes a protected characteristic. My employer is free to lawfully discriminate, and make adverse employment decisions, on that basis. The point of the motion to dismiss in Ms. Roth’s case was that there was nothing about her allegations that involved discrimination based on her sex (gender)–and that was the main issue under review on appeal.

Standards for Dismissal Under Rule 12(b)(6); Iqbal is Rejected

When an employer (or any other defendant) is trying to dismiss a lawsuit under Rule 12(b)(6), the deck is stacked in favor of the employee in the sense that this will be a decision based on only the sufficiency of the allegations in the complaint. The WV Supreme Court has applied these rules in scrutinizing the adequacy of the complaint:

• “liberally construe the complaint so as to do substantial justice”;
• keep in mind that “the preference is to decide cases on their merits”;
• “construe the complaint in the light most favorable to the plaintiff, taking all the allegations as true”;
• dismiss the complaint only if it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”, and
• the rules concerning pleadings require that the complaint  merely give “fair notice” of the allegations, and the complaint itself is “not required to set out facts upon which the claim is based”.  (This principle arises out of Rule 8(a) which states that a complaint shall contain a “short and plain statement of the claim showing that the pleader is entitled to relief”. Rule 9(b) then states that allegations of “fraud or mistake” shall be stated “with particularity”, but that “[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally.” The comparable federal Rule 8(a) was the basis for the US Supreme Court in 1957 formulating the “notice” concept for pleadings in Conley v. Gibson, 355 U.S. 41 (1957).)

This last item, the “fair notice” requirement, is key to understanding this case and dismissal motions under Rule 12(b)(6). The point of the complaint in West Virginia is to give “fair notice” of the allegations, and it is not required to set out the allegations in more detail. The “more detail” is something that the parties explore under the “discovery phase” of the lawsuit when documents are requested, depositions are taken, etc.

The US Supreme Court has recently adopted a more stringent system for evaluating complaints in the Rule 12(b)(6) context (the feds have the same rule), with the decisions being Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007). In Iqbal, the US Supreme Court held:

[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to state a claim to relief that is plausible on its face.

The US Supreme Court held that “bare assertions” are not entitled to be accepted as true in evaluating a motion to dismiss under Rule 12(b)(6).

The WV Supreme Court in Roth v. DeFeliceCare, Inc., on the other hand, rejected the “more stringent” federal requirement, and stuck with the “fair notice” principles.

The Iqbal decision was a 5-4 split, and has generated a good bit of controversy. Members of Congress have taken steps toward legislatively overturning it. The US House bill (H.R. 4115), called the Open Access to Courts Act of 2009, is in committee, and hearings have been conducted by the House Judiciary Committee. The Bill has not emerged from the Judiciary Committee. In the Senate, a comparable bill called the “Notice of Pleadings Restoration Act of 2009” (S. 1504) has been introduced, and it has not emerged from the Senate Judiciary Committee. Both of these bills would return federal law to the “notice pleading” principles formulated in Conley v. Gibson, 355 U.S. 41 (1957).

Roth’s Hostile Work Environment Claim

The trial court dismissed Ms. Roth’s claim for hostile work environment, which includes claims for sexual harassment.

To “establish a claim for sexual harassment based upon a hostile or abusive work environment” under WV Human Rights Act, the plaintiff must prove

• 1. The subject conduct was unwelcome,
• 2. It was based on the sex of the plaintiff,
• 3. It was sufficiently severe or pervasive to alter the [plaintiff's] conditions of employment and create an abusive work environment, and
• 4. It was imputable on some factual basis to the employer.

The key element for this appeal was the second element. The trial court determined that the weird circumstance described by Ms. Roth in her complaint, when she allegedly stumbled into an area where her boss and another female employee were in some sort of sexual activity, was not any sort of hostile work environment that was “based on the sex of the plaintiff” (element 2 above). (For this purpose, the courts use “sex” and “gender” interchangeably.)

The WV Supreme Court’s opinion discussed whether these allegations could form the basis for a hostile work environment “based on sex“, and Justice Ketchum’s dissent discusses that as well. I am a bit confused by the Court’s opinions (the majority and the dissent) because some of the analysis seems to assume that the only the facts alleged in support of a hostile work environment are the facts relating to the episode of the boss allegedly being in sexual activity with a female coworker. However, the Supreme Court’s opinion makes it clear that there were significant other allegations that supported a claim for hostile work environment:

Defendant DeFeliceCare authorized, directed and acquiesced in the allowance of pervasive, explicit and habitual harassment which included but is not limited to: subjecting [Ms. Roth] to such sexually explicit conduct, threats of loss of license, loss of employment and termination for unwanted sexually explicit conduct she observed.

The key language in that portion is a “pervasive, explicit and habitual harassment which included but is not limited to” the boss’s alleged sexual activity with the coworker described in the complaint. Based on notice pleading requirements, and if the issue is whether the complaint puts the defendant on notice concerning a claim of hostile work environment or sexual harassment, that allegation alone should end the argument. In other words, there were allegations that there were sexual activities creating a hostile work environment above and beyond the episode involving the boss and coworker.

Another allegation in the complaint that is relevant to this issue is:

Ms. Roth was “subjected to improper and sexually explicit conduct by her superiors including the president and CEO Defendant DeFelice… thereby creating a hostile and abusive environment for employment”.

Again, that is clearly making allegations of a hostile work environment that involve superiors other than Mr. DeFelice. So the complaint’s allegations of hostile work environment were not limited to the boss/co-worker-being-partially-undressed episode.

Ultimately,  the WV Supreme Court concluded that Ms. Roth’s allegations in her complaint were sufficient to satisfy the pleadings requirements for a hostile work environment claim.

Ms. Roth’s Claim for “Quid Pro Quo” Sexual Harassment

Ms. Roth also alleged that she was terminated because of the sexual harassment. This is a claim under the WV Human Rights Act for what is generally known as “quid pro quo sexual harassment”, which involves an allegation that a tangible employment decision—here, termination—was related to the sexual harassment. For such a claim, the plaintiff must prove that she was a member of a protected class (here, female), that there was an adverse employment decision (here, termination), and that “but for the plaintiff’s protected status, the adverse decision would not have been made.”

The trial court also dismissed this claim, again on the theory that the complaint did not present any allegation that the termination was based on Ms. Roth’s sex. The WV Supreme Court disagreed and reversed this decision.

The WV Supreme Court discussed whether Ms. Roth’s encounter with her boss and coworker, and the subsequent termination, could be considered “based on the sex” of Ms. Roth, and described a statement made at oral argument by the plaintiff’s attorney, to the effect that a woman might have been fired, and a man might have been retained under the circumstances, because men might view such sexual activity as something to be “admired” (so by inference, there would be no termination), but a woman employee might be disadvantaged under comparable circumstances. The Court described that theory as “speculative at best”, and then focused on what was the real issue: “whether the appellants’ complaint was “sufficiently pleaded”.

For Ms. Roth’s discrimination claim over her discharge, on the issue of whether her discharge was based on her sex, a relevant allegation was that Mr. DeFelice fired Ms. Roth stating that “he did not like how she dressed” and “he did not like the style/color of her hair”. That seems to me to be a pretty gender-based reason for termination (again, that is Ms. Roth’s allegation, and it must be accepted as true in this procedural context).

Ms. Roth’s Claim Discharge in Violation of a Substantial Public Policy

Ms. Roth also alleged wrongful termination under the doctrine first announced by the WV Supreme Court in Harless v. First National Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978), where termination will be actionable if the “motivation” of the employer “is to contravene some substantial public policy principle.” That doctrine has been applied in a number of settings, including whistleblower circumstances, situations where an employee invokes a right such as self defense (in the setting of a store robbery), privacy rights under some circumstances to refuse drug tests, and situations where the employee is terminated because of some testimony in a legal proceeding.

The trial judge decided that the facts did not support any conclusion that there was a “substantial public policy” that the employer was trying to “contravene”.  The WV Supreme Court disagreed and reversed on this decision as well.

Ms. Roth submitted the following three alleged “substantial public policies” at issue which she claimed made the termination unlawful, and the trial court rejected all of them. The WV Supreme Court concluded that the second and third policies could be viable, so that it reversed the decision to dismiss this wrongful discharge claim under the Harless doctrine:

• First: the plaintiff invoked West Virginia statutes concerning public nudity, and the trial court dismissed that as a relevant substantial public policy; and the West Virginia Supreme Court agreed.
• Second: Ms. Roth contended that the sex discrimination and sexual harassment laws under the WV Human Rights Act created substantial public policies, and the West Virginia Supreme Court has previously made it clear under the Harless doctrine that those statutes in fact established substantial public policies which could form the basis of a wrongful discharge claim. However, the trial court implicitly rejected that theory—the trial court didn’t expressly discuss it. The West Virginia Supreme Court disagreed, based on the analysis that I have described above in discussing the hostile work environment claim. This policy and the next (third) policy were raised by Ms. Roth’s counsel in her opposition to the motion to dismiss, and the WV Supreme Court said the trial court should have addressed them in reaching its decision. In other words, the trial court should not have limited its consideration of potential public policies to those described in the complaint.
• Third: Ms. Roth alleged that there was another lawsuit by another female employee for sexual harassment that preceded her own, and in that lawsuit, there had been allegations of a sexual relationship between Mr. DeFelice and the co-worker that was in a state of partial undress with Mr. DeFelice when Ms. Roth walked in right before her vacation. In that other lawsuit, there had been testimony denying the relationship between Mr. DeFelice and the (partially clothed) co-worker. Thus, Ms. Roth had the potential for having testimony in that other lawsuit that could have contradicted the testimony that Mr. DeFelice and the other co-worker were not involved in any sort of relationship. Ms. Roth’s lawyer alleged that DeFeliceCare was violating a substantial public policy in potentially terminating Ms. Roth for her possible testimony in that other lawsuit. The trial court rejected this theory, but the West Virginia Supreme Court disagreed, and concluded that this was a viable theory for a “substantial public policy” being violated. In other words, Ms. Roth’s theory was that she was fired because her observation of the sexual encounter between Mr. DeFelice and the coworker could have been damaging to Mr. DeFelice and his company in that other lawsuit, such that Mr. DeFelice was motivated to terminate Ms. Roth.

So the WV Supreme Court thought the second and third theories above constituted substantial public policies so the dismiss of the Harless claim was inappropriate.

Ms. Roth’s Claim for Retaliation

Ms. Roth also alleged retaliation under the West Virginia Human Rights Act. Retaliation under that Act required that Ms. Roth engaged in some “protected activity” either in the form of (a) opposition to discriminatory behavior, or (b) in the form of participating in connection with some proceeding under the Act. As far as I can tell, the only protected activity alleged by Ms. Roth was the “opposition”, so that was the only type of  protected activity discussed in the WV Supreme Court’s opinion.

The “opposition” protected activity includes “opposition to a practice that the plaintiff reasonably and in good faith believes violated the provisions” of the WV Human Rights Act. The opposition

“must be reasonable in the sense that it must be based on a set of facts and a legal theory that are plausible. Further, the view must be honestly held and must be more than a cover for troublemaking. Thus, even if there was no actionable sexual harassment, the plaintiff could still have engaged in a protected activity if she complained about being sexually harassed.”

The trial court dismissed this claim, and the WV Supreme Court agreed because Ms. Roth had never “engaged in any protected activity”. She had simply never done anything to express any opposition to any of the sexual conduct she claims to have experienced or heard about.

Ms. Roth’s Claim for Intentional Infliction of Emotional Distress

Ms. Roth also alleged a claim for “intentional infliction of emotional distress“, which is an extremely hard claim to prevail upon in an employment setting. The WV Supreme Court described the claim this way:

One who by extreme or outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for bodily harm.

The conduct must be

so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.

Wow, that sounds tough to satisfy, especially in the workplace, and there are relatively few cases in which plaintiffs have succeeded on that theory. But keep in mind that the issue for purposes of the Supreme Court’s decision was whether Ms. Roth’s pleadings were sufficient to support this claim. The trial court had focused on the fact that there was no allegation that the employer had terminated Ms. Roth in an “outrageous manner”.

But the West Virginia Supreme Court disagreed, and said that the following allegations in the complaint were sufficient::

• 1. Mr. DeFelice called Ms. Roth and asked her to come to the office, and when she complied with that request she was placed “by her employer into unwantedly observing Mr. DeFelice Ms. Kelly in a sexually compromising position.”
• 2. Because of that observation, Mr. DeFelice “threatened” Ms. Roth “not only with termination from her employment, but with possibly losing her respiratory therapist license, which was her means of making a living.”
• 3. Ms. Roth was then terminated “within the same week”, allegedly because Mr. DeFelice “did not like how she dressed or the style and color of her hair.” (The Court thought it was significant that there was a close proximity in time for these allegations.)

Again, this is not the same thing as saying these allegations alone, without any other evidence, would satisfy the requirements for intentional infliction of emotional distress at trial. but it is to say that, with these allegations in the complaint, the Court could not conclude “beyond doubt” that Mr. Roth “can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Thus, the WV Supreme Court reversed the trial court’s decision to dismiss the claim for intentional infliction of emotional distress.

Written by Drew M. Capuder (contact information); Voice: 304-333-5261

The Fourth Circuit Court of Appeals addressed this issue in Pueschel v. Peters, 577 F.3d 558 (4th Cir. 2009), in a unanimous decision written by Judge Roger Gregory in which Judges M. Blane Michael and Robert Bruce King joined.

The Fourth Circuit didn’t have much difficulty reaching the conclusion that, for any claim alleging a hostile work environment (including sexual harassment), you can’t succeed if all of the misconduct about which you complain occurred at work when you were not at work.

Twenty Eight Years of Litigation!!!

This case grows out of an incredibly long history of litigation (including several different lawsuits and appeals (some of which were successful)) filed by Ms. Pueschel against her employer, the Federal Aviation Administration ("FAA"). The litigation started in 1981 and ended with this Fourth Circuit decision in 2009 (I am not kidding, and I am not sure this decision marks the end of all of her litigation).

I’ll fast-forward past the first decade or so of litigation. In 1994, Ms. Pueschel went on leave without pay ("LWOP") from her job at the FAA after she claimed to suffer a "stress-related episode at work". She claimed that this required her to leave work permanently. She remained on LWOP until she was terminated in 1999 because of her inability to work, and she never returned to work at the FAA.

Ms. Pueschel filed a number of discrimination administrative charges between 1997 and 1999, and the key allegation that I will focus on in this article was that she was subjected to a hostile work environment in 1997 and 1998 (keeping in mind that she was not at work after 1994). Ms. Pueschel claimed that the hostile work environment was based on her gender and disability, and based on the fact that she had filed charges of discrimination against the FAA. These charges led to a lawsuit in which the trial judge granted the FAA’s motion for summary judgment on Ms. Pueschel’s hostile work environment claim under Title VII of the Civil Rights of 1964.

So the Fourth Circuit had to decide whether Ms. Pueschel had a viable hostile work environment claim based on her gender and her disability and her prior charges of discrimination.

I described Ms. Pueschel’s claim at the beginning of this article as "sexual harassment" for the sake of convenience to describe the issue, but her hostile work environment claim was more complicated than that. She alleged that co-workers were making ugly, profane, and degrading comments about her, and the comments were not "sexual" in a conventional sense. The insults were that she was a "fucking bitch", "nothing but a bitch", a "useless bitch", and other similar statements.

Fourth Circuit’s Analysis

The first important thing about the Fourth Circuit’s analysis is that it assumed that a hostile work environment claim can be predicated on any protected characteristic under the employment discrimination laws. It described the basic requirements (prima facie case) of a hostile work environment claim, and said the plaintiff must demonstrate that the alleged conduct:

• was unwelcome;
• resulted because of her gender, disability, or other protected activity;
• was "sufficiently severe or pervasive" to alter the conditions of her employment; and
• was imputable to her employer.

(my emphasis is added). Some courts have questioned whether hostile work environment claims can be based on any characteristics other than gender and race. But the Fourth Circuit’s language in element 2 above ("based on gender, disability, or other protected activity") clearly recognizes that a hostile work environment may be motivated by most or all of the protected characteristics under the employment discrimination laws. That means that hostile work environment claims in principle may be based on gender (conventional sexual harassment), race (racist comments), disability, age, national origin, and religion.

The second important thing about the Fourth Circuit’s analysis is that it concluded–perhaps stating the obvious–that Ms. Pueschel could not prevail on her hostile work environment claim because she left her FAA employment permanently starting in 1994, and all of the abusive conduct occurred at work in 1997 and 1998 after her employment ended. In other words, she was not present at work, so the insulting statements at work could not create a hostile or abusive work environment for her.

Lingering Issues

The holding in this case does not mean that the plaintiff-employee must always be physically present while offensive workplace behavior is occurring. Abusive conduct may be relevant and admissible in various settings where the plaintiff is not physically present, but these circumstances will generally require that the plaintiff still be employed at the time of the events. Here are the scenarios where the conduct may still support a hostile work environment claim (and I’ll use sexual harassment conduct as the example):

• Boss makes sexually offensive statements about female employee (plaintiff) while plaintiff is not present, but another employee later tells the plaintiff about the statements. Courts don’t have a lot of trouble concluding that this sort of after-the-fact knowledge about the harassing statements contributes to a hostile work environment.
• Boss makes sexually offensive statements about plaintiff, no one ever tells plaintiff, and boss denies ever making other sexually offensive remarks directly to the plaintiff. Under those circumstances, even though the boss’s statements did not contribute to a hostile work environment for the plaintiff, the statements outside of the presence of the plaintiff are likely to be admissible on the disputed issue of whether the boss ever made sexually offensive statements directly to the plaintiff.
• Boss sexually harasses other women (other than the plaintiff) outside the presence of the plaintiff. That harassment may be admissible in plaintiff’s case under 2 circumstances: (a) plaintiff claims to have been told about that harassment while she was still working for employer, and she credibly claims her after-the-fact knowledge contributed to the hostile work environment, and (b) even if plaintiff did not learn about it after the fact, the harassment of other women may be admissible on the disputed issue of whether the boss sexually harassed the plaintiff.

Prepared by Drew M. Capuder (contact information); Voice: 304-333-5261

Mr. Rice was represented by Mark Atkinson and Paul Frampton at Atkinson & Polak, PLLC, and the defendants were represented by Roger Wolfe at Jackson & Kelly PLLC in Charleston, and Kevin Hyde at Foley & Lardner, LLP in Jacksonville, Florida.

Here is a quick run-down of what was awarded in the case:

• Back pay: $142,659 awarded by jury.
• Pre-judgment interest: $11,791.84 from date of termination through trial.
• Front pay: $1,991,332.00 awarded by jury (from roughly age 48 through retirement age at 67).
• Emotional distress: $0.
• Punitive damages: Jury did not answer question affirmatively which would have allowed award of punitive damages.
• Total judgment based on jury’s verdict: $2,145,782.84, plus post-judgment interest on that amount at 7% per annum.
• Attorneys’ fees: $117,235 awarded by judge (based on $450 an hour for Mark Atkinson and $300 per hour for Paul Frampton).
• Litigation expenses: $20,324.16 awarded by judge.
• Total award: $2,283,342.00 (based on jury verdict, pre-judgment interest, attorneys’ fees and expenses) plus post-judgment interest at 7% per annum.

The Rice case illustrates the risk employers face when they terminate an older, good, long-standing employee, and replace him or her with a much younger person with little or no experience for the employer.

What Happened?

Mr. Rice at the time of his termination (in 2009) was age 47 and had worked for Burke-Parsons-Bowlby Corporation for 24 years. When Mr. Rice was terminated he was the corporate controller.

In the year or so preceding Mr. Rice’s termination, in 2008, Burke-Parsons-Bowlby Corporation was acquired by Stella-Jones, Inc.  Then on February 16, 2009, the company hired Jeremy Stover, age 27-28, as the "assistant controller" under Mr. Rice. There was testimony that Mr. Rice was instructed to teach Mr. Stover "everything you do". There was also evidence that, between the time of the decision to terminate Mr. Rice and the actual termination, there was a significant company audit which required Mr. Rice’s expertise.

The kicker for the defendants was that apparently the company made the decision to terminate Mr. Rice’s employment before hiring younger Mr. Stover. So the sequence of events, according to evidence presented by Mr. Rice,  was: purchase of the old company by Stella-Jones, decision to terminate 47-year-old Mr. Rice (with 24 years of experience), hiring of Mr. Stover at age 27 or 28 (with no experience with the company), getting Mr. Rice to train Mr. Stover, completing the company audit with Mr. Rice’s help, then firing 47-year-old Mr. Rice, and then getting 28 year old Mr. Stover to take over the bulk of Mr. Rice’s job.

Evidence of Discrimination: Conflicting Explanations for the Termination

For proving an age discrimination claim (or, for that matter, any other kind of discrimination claim), one of the standard threads of evidence which supports an inference of discrimination is proof of conflicting explanations by the employer for the reason for the employment decision.

In Mr. Rice’s case, there were allegations that the company had conflicting versions of why it terminated Mr. Rice. The company originally claimed that part of the reason for terminating Mr. Rice was his inadequate performance quality. Then later, the company apparently shifted to the explanation that it simply eliminated Mr. Rice’s position.

Evidence of Discrimination: Replacing an Older Worker with a Substantially Younger One

Another type of evidence which is considered to be supportive of a finding of discrimination is the replacement of the plaintiff-employee in the "protected class" with an employee outside the protected class.

For his age discrimination claim, Mr. Rice was age 47, which meant that he satisfied the statutory requirement for being protected on the basis of age — he was 40 years or older. Mr. Rice was replaced by an employee substantially younger than him, Mr. Stover at age 27 or 28.

The courts have concluded that, for age discrimination, the inference of discrimination arises if the replacement employee is "substantially younger" than the plaintiff, even if the replacement employee is over 40 years of age. In Mr. Rice’s case there were no complications on that issue — Mr. Stover was both under age 40 and substantially younger than Mr. Rice (about 20 years younger).

There was a dispute over whether Mr. Stover in fact "replaced" Mr. Rice, but the following facts were in the record which could have supported the conclusion that the younger Mr. Stover replaced the older Mr. Rice: Mr. Rice was the corporate controller, a decision was made to terminate Mr. Rice, Mr. Stover was hired as "assistant controller", management instructed Mr. Rice to teach Mr. Stover "everything you do", the company then conducted a significant audit (with Mr. Rice’s assistance) to a successful conclusion, the company then terminated Mr. Rice, and Mr. Stover took over most of Mr. Rice’s job responsibilities.

Evidence of Discrimination: Contradicting the Employer’s Explanation

There is a third type of evidence which supports a finding of discrimination: the contradicting of the company’s stated legitimate, non-discriminatory reason for terminating the plaintiff.

The defendants’ initial description of the reason for termination was inadequate job performance. Mr. Rice presented evidence that he had an excellent work history with the company that was free of any disciplinary action.

Damages

The awarded damages in this case are interesting. First, the jury awarded $142,659 in "back pay", which is essentially lost income and lost benefits from the point of termination through the date of trial.

The jury also awarded $1,991,332 for “front pay", which is future (from date of trial) lost income through some point in the future. An expert witness for Mr. Rice calculated future lost income through a projected retirement age of 67. The expert’s calculation of front pay was as I understand it, nearly exactly what the jury awarded: $1,991,332.

So the jury awarded Mr. Rice front pay from his age at trial, which appears to me to have been age 48 or 49, through retirement at age 67 — a total of about 19 years.

An important facet of the jury’s decision on front pay is that it did not reduce its award of front pay by the amount of any income Mr. Rice would be receiving in the future from employment after termination by the defendants. West Virginia has a somewhat unusual characteristic on awards of lost income, both past and future. Ordinarily, and this is also true in West Virginia, the jury would be instructed to take its prediction of lost income in the future (which is calculated by projecting the annual salary and benefits for the plaintiff’s last position with the defendant), and then subtract what the jury believes will be income to be earned by the plaintiff during that same time future time period.

For example, let’s assume that the jury knows that the plaintiff was making $100,000 a year in the last position for the defendant-employer that terminated the plaintiff. In awarding front pay, the jury would first project out that $100,000 each of the next 10 years. Let’s also assume that at time of trial the plaintiff is making $50,000 year at a new job (after his termination), and that job is likely to continue into the future. (For these calculations, I am ignoring the prospects of pay raises, I am ignoring benefits, and I am ignoring any effort to apply a “discount rate” to the future income amounts.) Under this scenario, the jury would subtract the $50,000 of annual wage from the $100,000 figure, for a yearly front pay damage amount of $50,000, and a total front pay award of $500,000 (10 years at $50,000 per year).

Under West Virginia law, however, the jury is instructed that if it concludes termination of the plaintiff was "malicious", then the jury should not subtract the subsequent replacement  income (in my example, $50,000 a year), and should instead award  a “flat” amount for front pay consisting solely of the calculation of the annual wage from the employee’s income with the defendant (in my example, $100,000 per year). That would mean an award of $100,000 per year, and a total award of $1,000,000 (10 years times $100,000).

Obviously, the "malice" rule makes a big difference. In the example I provided above, with 10 years of future lost income, wages of $100,000 per year at the defendant, and wages of $50,000 per year in a subsequent job:  the plaintiff would receive $500,000 in front pay damages if the termination was not malicious. However, the plaintiff would receive $1,000,000 in front pay if the jury concludes that the termination was malicious and does not subtract any of the replacement (post-defendant) job income.

In Mr. Rice’s case, my understanding is the jury awarded the $1,991,332 in front pay based on a conclusion of malice, so the jury did not subtract any income Mr. Rice might receive in the future from any subsequent employment.

The West Virginia Supreme Court most recently reiterated this "malicious termination rule" for back and front pay awards in Peters v. Rivers Edge Mining, Inc., 224 W. Va. 160, 680 S.E.2d 791, 814-815 (2009).

Interestingly, the jury did not award any compensation for emotional distress.

The jury also did not award any punitive damages.

Thus, when you add prejudgment interest to the award of back pay (and the prejudgment interest was $11,791.84), the total amount of damages that the judge awarded based on the jury’s verdict was $2,145,782.84

Attorney’s Fees and Expenses

Because Mr. Rice was the prevailing party in an age discrimination claim under the West Virginia Human Rights Act, he also received from the trial judge after the jury’s verdict an award of reasonable attorney’s  fees and expenses. The lead lawyer for Mr. Rice was Mark Atkinson, who has been practicing about 27 years. Mr. Atkinson has tried several employment discrimination and other wrongful discharge cases in West Virginia to jury verdicts of roughly $1-$3 million each. The trial court approved an hourly rate for Mr. Atkinson of $450. Paul Frampton also tried the case with Mr. Atkinson, has been practicing law for about 7 years, and the trial judge approved an hourly rate for Mr. Frampton of $300. The trial court also approved an hourly rate of $125 for paralegal time.

The trial court then multiplied those hourly rates by the number of hours expended by the lawyers and their legal assistants, and awarded attorneys’ fees of $117,235. The trial court also awarded expenses incurred by counsel for Mr. Rice in the amount of $20,324.16.

Post-Judgment Interest

Under West Virginia law "post-judgment interest" would then be applied to all of those awarded amounts at the rate of 7% per year.

Appeal?

The defendants have filed a motion for new trial, and I don’t have significant information on that motion (it has not been ruled upon as of this date). Given the size of the verdict, it seems likely that an appeal will follow, assuming the trial court does not grant the motion for new trial.

Prepared by Drew M. Capuder (contact information)

Doctor on Doctor Harassment at Fairbrook Medical Clinic

Dr. John Kessel was the owner of Fairbrook Medical Clinic in South Carolina, and was accused by a former female doctor at the clinic, Dr. Deborah Waechter, of sexually harassing her. Dr. Kessel was Dr. Waechter’s supervisor. Dr. Waechter worked for him for 3 years and quit, allegedly over a broad range of sexually explicit statements made during most of those 3 years (I’ll discuss the specifics below).

Dr. Waechter’s Lawsuit

Dr. Waechter then filed a charge of discrimination with the EEOC, alleging that Dr. Kessel’s behavior created a "hostile work environment", and the EEOC then filed suit on behalf of Dr. Waechter against Dr. Kessel’s clinic under Title VII of the Civil Rights Act of 1964.

After discovery was conducted. Fairbrook Medical Clinic filed a motion for summary judgment, and the federal trial judge granted it. The trial judge reasoned that the offensive conduct was "not particularly frequent," mostly involved "the type of crude jokes that do not run afoul of Title VII," did not cause Dr. Waechter to miss work or feel "severe psychological stress," and did not include inappropriate touching or physical threats.

The Fourth Circuit reversed and sent the case back for trial, concluding that the EEOC on behalf of Dr. Waechter had presented evidence from which a jury could have reasonably concluded that Dr. Kessel’s behavior was severe or pervasive enough to create a hostile work environment.

Issues on Appeal

The central issues for the Fourth Circuit to address on appeal were whether Dr. Kessel’s conduct (a) was based on Dr. Waechter’s gender and (b) was "sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment."

Fairbrook Medical Clinic made two familiar arguments that arise frequently in sexual harassment claims: (a) Kr. Kessel was just a "rude & crude" kind of guy who wasn’t really making expressly sexual comments aimed at Dr. Waechter’s gender, and (b) even if the behavior was expressly sexual,  Dr. Kessel’s comments weren’t frequent and severe enough to create a hostile work environment.

Dr. Kessel’s Comments Were  "Based On" Dr. Waechter’s Gender

Since sexual harassment law requires that the behavior be based on the plaintiff’s gender, sometimes these claims fail because the comments consist of profanity or crude behavior that doesn’t really target someone’s gender. For example, statements or jokes that include profanity are sometimes not viewed as sexual harassment by the courts, because they are not "sexual comments" targeting someone’s gender.

But the Fourth Circuit "easily dismissed" Dr. Kessel’s characterization of his behavior. The Fourth Circuit made a number of observations about Dr. Kessel’s conduct that helped define his behavior as ‘sexual" and targeted at Dr. Waechter’s gender:

• Dr. Kessel used "sex-specific and derogatory terms" intended to "demean women";
• He used "cunt" and "slut" to refer to women at the clinic;
• He talked about "female body parts" in graphic terms;
• Several times he made "explicit or implicit proposals of sexual activity";
• He asked Dr. Waechter if she "had a better libido while she was pumping her breasts" (she had had her second child and was breast feeding);
• He said he thought she was probably a "wild thing" in bed; and
• He asked to "view and pump her breasts".

So the Fourth Circuit concluded that a reasonable jury could have concluded that Dr. Kessel’s comments were "based on sex" and that their intimate nature was intended make women in his employ feel "acutely embarrassed and uncomfortable".

Dr. Kessel’s Comments Were "Severe or Pervasive"

So the next issue was whether Dr. Kessel’s comments were "severe or pervasive" enough to create a hostile work environment. That is an important requirement, and many sexual harassment claims fail on it. For example, even if the defendant’s conduct was clearly "based on sex", it may not be actionable if it fairly infrequent, or if it is not terribly severe.

The Courts have said that "not all workplace conduct that may be described as "harassment" is severe enough to constitute a hostile work environment.  The conduct must be both (1) "objectively hostile or abusive", and (2) the victim must "subjectively perceive it as such". Because Fairbrook Medical Clinic did not dispute the fact that Dr. Waechter subjectively perceived the conduct as abusive (the second requirement), the Fourth Circuit focused on the first requirement: where the conduct was "objectively hostile or abusive".

On this "objective prong" ("objectively hostile or abusive"), the Fourth Circuit noted there is no "mathematically precise test" for figuring out whether the conduct was "objectively hostile or abusive", and you look at the harassment from the "perspective of a reasonable person in the plaintiff’s position, considering all the circumstances".

The "circumstances" include the "frequency of the discriminatory conduct"; its severity; whether it is physically threatening or humiliating, or a merely offensive utterance; and whether it unreasonable interferes with an employee’s work performance." The Court should consider the "social context in which particular behavior occurs and is experienced by its target". The courts should also keep in mind that Title VII does not impose a "general civility code", and "merely crude behavior" does not constitute sexual harassment.

On that line between "sexual harassment" and "merely crude behavior," the Fourth Circuit said there is a difference between "generalized" statements that "pollute the work environment" and "personal gender-based remarks" that "single out individuals for ridicule". Activities like "simple teasing, offhand comments, and off-color jokes, while often regrettable, do not cross the line into actionable misconduct".

Fairbrook Medical Clinic argued that Dr. Kessel’s behavior was not "severe", that Kessel was merely "crude", other employees and patients told off-color jokes, employees in a medical setting deal with "human bodies" every day, and Dr. Waechter sometimes engaged in off-color comments.

The Fourth Circuit concluded that Dr. Kessel’s behavior was "objectively hostile or abusive". Dr. Kessel’s remarks were "highly personal", such as a broad range of comments about the size of Dr. Waechter’s breasts, wanting to see and pump her breasts, asking about her sex drive, speculating that she was a "wild thing" in bed, and comments about his genitals and his wife’s genitals.

The Fourth Circuit rejected the assertion that the context of a medical clinic somehow negates the "severity" of Dr. Kessel’s behavior.

The Fourth Circuit also rejected the argument that Dr. Kessel’s conduct was "not particularly frequent". Dr. Kessel’s conduct was "at least a regular occurrence"; he told "foul jokes" 2 or 3 times a month; Dr. Kessel displayed an "image of his penis" 25-30 times with 5 to 10 descriptions of his penis as "Mr. Happy"; and he made comments about Dr. Waechter’s breasts at least 1-2 times a week from December 2005 to January 2006.

Under those circumstances, a "reasonable person" in Dr. Waechter’s position" could have concluded that the "harassment had become a persistent feature of her work environment."

The Fourth Circuit also rejected the argument that the harassment did not cause Dr. Waechter to miss work and did not adversely affect her performance (Dr. Kessel acknowledged that she was a very good doctor).

Conclusion

The Fourth Circuit’s decision is a good resource for looking at that imprecise line between "merely crude behavior" and actionable sexual harassment.

The federal trial judge concluded that there was simply no way a reasonable jury could have concluded this was unlawful sexual harassment, so he dismissed the case. The Fourth Circuit reversed, and the case will go back to the trial judge to head towards trial.

Prepared by Drew M. Capuder (contact information); Voice: 304-333-5261

I wanted to set out some additional thoughts about Burlington Northern, because it addresses an issue that has troubled the courts in interpreting the federal anti-discrimination laws: When is an employer’s conduct serious enough in disadvantaging an employee so that the employee has a claim under the employment discrimination laws? The answer is easy when the employer’s decision affects the employee’s pocket book, like with termination, failure to hire, demotions, and the like. The answer has been much harder when the employer’s conduct didn’t directly affect the employee’s pocket book.

NBA referees struggle with a similar issue: where is there enough physical contact on the court to justify calling a foul on a player. So let’s explore some parallels between these employment discrimination issues and the NBA’s "no blood no foul" rule.

The NBA’s "No Blood No Foul" Rule

If you watch National Basketball Association games, you might be struck by how much physical contact there is on the court and how rarely the referees call personal fouls over that physical contact. Fans of the NBA have only a partially kidding way to refer to the "standard" by which the referees decide how much contact will result in a personal foul being called. It’s the "no blood no foul" rule. In other words, the referees will allow a lot of physical contact, and will only call a foul when someone gets bloodied as a result of the contact.

Let’s assume, with our tongues in our cheeks, that there is such a rule (no blood no foul) that NBA referees apply, regardless of what is written in the Official Rules. The idea behind the "no blood no foul" rule is this: there is so much fast-paced hurley-burly contact on the basketball court, much of which makes it more exciting for the fans, that calling a foul for any physical contact (or a lower defined level of physical contact) would slow down the game for fans and make the game less enjoyable, unreasonably impede the skill of the players, and makes it impossibly hard for officials to identify "contact". So the appearance of blood is a more "objective" indication that the contact really mattered and really constituted an unfair interference with the other player.

The Supreme Court Struggles With "When is There a Foul"?

Courts for years have struggled with the employment discrimination equivalent of the "no blood no foul" rule. For the courts, assuming unlawful discrimination occurred: when is the consequence of the discrimination serious enough and objectively discernible so that courts will recognize a claim and intervene by activating the court’s process and potentially awarding damages.

Except for situations involving hostile work environment, the courts have translated the NBA’s blood requirement into a tangible economic consequence. Thus, much in the spirit of the NBA, the courts have said economic harm must be demonstrable as a result of discrimination, or else the courts won’t entertain the claim no economic consequence, no legal violation, case dismissed.

Three Approaches on Whether There is a Discrimination Foul

Before the supreme court’s decision in Burlington Northern, the courts had struggled over, in effect, how much blood to require, or even whether to require any blood at all.

We need to put aside, for the moment, claims involving a hostile work environment. In such claims, there is no “blood” requirement. The courts recognize claims for hostile work environment, and will award damages, even where there is no economic consequence, as long as the plaintiff proves that the environment issue was severe or pervasive enough so as to interfere with what he an employee’s work environment. That situation, where the courts do not require any economic consequence, is the exception rather than the rule.

So for retaliation claims, the courts have historically adopted three different tests for determining the minimal level of severity required before the court will recognize a claim for the employee. The following options start with the most severe level of misconduct the rough equivalent of blood veritably gushing out of the NBA player:

First, some courts have only recognized a claim if there had been an "ultimate employment decision" in retaliation for an employee’s opposition to discriminatory conduct. "Ultimate employment decisions" are things like hiring, granting leave, discharging, promoting, and compensating.

Second, moving down in terms of the level of severity, some courts had recognized a claim where there had been an "adverse effect" on the "terms, conditions, or benefits" of employment. That is a broader test because it encompasses conduct by the employer that is on a lower level than the "ultimate employment decisions." For example, suppose an employer negatively evaluates an employee so that the negative evaluation results in a lower raise. Under the "ultimate employment decision" standard, a performance evaluation does not ring the bell. But under the standard of an adverse affect on the "terms, conditions, or benefits" of employment, the negative evaluation would be included, potentially providing the support for the claim of retaliation.

Third, some courts have abandoned any blood requirement at all. The Supreme Court recognized that there was a different rule in terms of the requirement for a specific level of severity between the substantive discrimination provision of Title VII and the retaliation provision. Economic consequence was required under the substantive discrimination provisions, but not under the retaliation provision. This distinction was tied closely to the different language in the prohibition sections on discrimination and retaliation.

Substantive Prohibitions Versus Retaliation Prohibitions

Since this third approach is tied closely to a carefully reading of Title VII’s retaliation provision, let’s look at the difference between the substantive and retaliation provisions in Title VII (and a good but of the Supreme Court’s analysis in Burlington Northern v. White was based on the difference between these provisions).

Section 703(a) of Title VII contains the substantive anti-discrimination provision: "it shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a).

The anti-retaliation provision of title VII, in section 704(a), has a different prohibition provision: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).

The Supreme Court in Burlington Northern v. White noted that the key words in the substantive provision "hire," "discharge," "compensation, terms, conditions, or privileges of employment," employment opportunities," and "status as an employee" "explicitly limit the scope of that provision to actions that affect employment or alter the conditions of the workplace. No such limiting words appear in the anti-retaliation provision." This is at pages 2411-2412.

"The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provisions seek to prevent harm to individuals based on what they do, i.e., their conduct."

The Supreme Court recognized that the language in the retaliation provision was not limited to conduct in the workplace. "An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace." Examples that the court noted, from earlier decisions, were: an employee of the FBI complained, and the FBI retaliated by refusing to investigate death threats a federal prisoner had made against the employee. Another example: the employer filed false criminal charges against a former employee who complained about discrimination.

"A provision limited to employment-related actions would not deter the many forms of effective retaliation can take. Hence, such a limited construction would fail to fully achieve the anti-retaliation provision’s "primary purpose", namely, "[m]aintaining unfettered access to statutory remedial mechanisms."

Thus, "the purpose reinforces what language already indicates", that the "anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment."

Key Ruling: "Materially Adverse" Action

The Supreme Court posed the issue as addressing "the level of seriousness to which this harm must rise before it becomes actionable retaliation." The Supreme Court agreed with the Seventh and District of Columbia Circuits. The Supreme Court concluded that "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination"".

The Supreme Court said that it described the rule in terms of "material adversity" to separate "significant from trivial harms." There is no "general civility code for the American workplace." The "ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing" must be filtered out of the universe of claims that the courts will recognize. The law will not "immunize" the employee from those "petty slights or minor annoyances that often take place at work and that all employees experience." "Personality conflicts at work that generate antipathy and snubbing by supervisors and coworkers are not actionable" under Title VII. So "normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence."

The rule was stated in terms of a "reasonable employee" because the "standard for judging harm" must be "objective." An objective standard is "judicially administrable." That standard avoids the "uncertainties and unfair discrepancies" that can "plague a judicial effort to determine a plaintiff’s unusual subjective feelings."

"Materially Adverse" Action versus "Petty Slights"

The court gave further examples of how to distinguish between "petty slights" and "material" changes that might deter a reasonable employee from complaining about discrimination. For example, while a "schedule change in an employee’s work schedule may make little difference to many workers, it may matter enormously to a young mother with school age children." The court cited one example of an employee with a disabled child needing flex-time scheduling.

The supervisor’s refusal to invite an employee to lunch is normally trivial. But to retaliate by "excluding an employee from the weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination." The court noted that whether action is significantly adverse "will often depend upon the particular circumstances. Context matters." An act that would be "immaterial in some situations is material in others."

The standard is tied to the "challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint."

The key in examining the employer’s challenged retaliatory action is to "screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination."

In the case, the employee had been assigned from forklift duty, which was considered desirable, to standard track labor tasks.

"Common sense suggests that one good way to discourage an employee such as White from bringing discrimination charges would be to insist that she spent more time performing the more arduous duties and less time performing those that are easier or more agreeable." Thus, one of the categories of adverse retaliatory action that did not require financial consequence was "unpleasant work assignments."

However, reassignment of job duties is not "automatically actionable." Whether a particular reassignment is "materially adverse" "depends upon the circumstances of the particular case" and should be judged from the "perspective of a reasonable employee in the plaintiff’s position, considering all the circumstances."

The court also found that the fact that the employer suspended White for 37 days with no pay was a materially adverse action, even though the lost income was later paid to the employee. An "indefinite suspension without pay could well act as a deterrent, even if the suspended employee eventually received back pay."

Justice Alito’s Concurring Opinion

Justice Alito wrote a concurring opinion in which he concurred in the judgment. He would have applied the conventional requirement that the adverse employment action must constitute a "tangible employment action", and he thought the reassignment to the substantially less desirable position and duties constituted such an "adverse employment action."

He was concerned about part II-D of the Court’s opinion, in which the court concluded that the only threshold requirement was materially adverse action that would dissuade a reasonable employee from complaining about discrimination. He thought that test was unnecessary, and that the court should have employed the test requiring some tangible effect on the compensation, terms, conditions, or privileges of employment.

Justice Alito describes a number of policies (“purposes”) behind the anti-retaliation provision in Title VII: (1) preventing employers from engaging in retaliatory measures which will dissuade employees from engaging in protected activity, and (2) prevent harm to individuals that assert their rights.

The Take-Away Rules in Burlington Northern v. White

The Supreme Court broadened retaliation claims in 2 ways:

First: Retaliatory conduct is not limited to an employer’s action at the workplace, and it is not limited to action taken while the plaintiff is still working for the employer.

Second: Action by the employer may violate the anti-retaliation provision even if it does not cause a tangible loss, such as pay, for the plaintiff. The conduct may violate the law if it is "materially adverse" (as opposed to "trivial") to the employee, and might dissuade a "reasonable worker" from "making or supporting a charge of discrimination". So, for example, transfers to different positions, even though they involve no loss in pay or benefits or promotional opportunities, might constitute unlawful action because, if the transfer is to what a reasonable worker would view as a less attractive job, that might dissuade a reasonable worker from complaining of discrimination.

Finally, Back to the NBA

After all of this legal stuff, grab a beer and watch the NBA’s play of the day:

Finally, but only if you are hardcore NBA fan, read the NBA’s Rule 12, Part B on "Personal Foul", under Section I "Types". This will give you the NBA’s real rule on personal fouls:

Prepared by Drew M. Capuder (contact information)

This was an age discrimination case under the Age Discrimination in Employment Act of 1967 (ADEA). The plaintiff was a member of a union, and the collective bargaining agreement (union contract) required submitting age discrimination claims to binding arbitration.

The US Supreme Court had previously ruled, but not in a labor union setting, that arbitration agreements for ADEA claims were enforceable under the Federal Arbitration Act, 9 U.S.C. sections 3-4 (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-33 (1991)). So the real issue in Penn Plaza was whether there would be a different result because of the union contract setting and the National Labor Relations Act.

The Supreme Court in Penn Plaza, in a divided decision (5-4), held that the arbitration agreement contained in the union contract was enforceable.

The enforceability of arbitration agreements for employment disputes has been a political hot potato, and The Arbitration Fairness Act of 2009 (H.R. 1020) was introduced in the US House on February 12, 2009. The bill has 36 co-sponsors, and has been referred to the House Committee on the Judiciary. If it passes, it would essentially overrule Penn Plaza and other cases which have held that employment dispute arbitration agreements are enforceable.

Written by Drew M. Capuder (contact information)

Clites Goes To Work For TeleTech And Signs An Arbitration Agreement

The plaintiff, Jill Clites, went to work for TeleTech in October 2004 as a Customer Service Representative. During new employee orientation, Clites met with a human resources representative for about 90 to 120 minutes, during which time Clites reviewed and signed a large number of documents related to the orientation. In the record before the West Virginia Supreme Court, there were disputes over whether individual documents were discussed with Clites and whether she was required to sing all the documents during the orientation session, but it appears that during that session Clites signed an arbitration agreement which TeleTech required of most or all new employees.

Clites remained employed at TeleTech until July 12, 2007, when she was terminated. She then filed suit for sexual harassment and retaliation. Clites alleged she complained about the sexual harassment, that TeleTech failed to take appropriate corrective action, and that TeleTech retaliated against her for the complaint by firing her.

Clites Files Suit In West Virginia Circuit Court

Clites filed suit in West Virginia Circuit Court in Morgantown. TeleTech then invoked the arbitration agreement by filing a motion to dismiss the lawsuit and by filing a separate lawsuit in federal court arguing that Clites waived her rights to a jury trial by signing the arbitration agreement. In essence, TeleTech argued that Clites gave up her rights to file suit and to a jury trial by signing the arbitration agreement, and that her only remedy was to file an arbitration proceeding (with the American Arbitration Association) pursuant to the arbitration agreement.

Judge Russell Clawges ruled that the arbitration agreement was a "contract of adhesion", which simply means that it was a "standardized form, containing no individual terms, offered [by the employer] on essentially a take it or leave it basis." Contracts of adhesion are usually described as contracts offered by the substantially more powerful party in a transaction as allowing for now negotiation–offered on a "take it or leave it" basis. Courts sometimes but not always scrutinize "adhesion contracts" more carefully, especially where they do in fact reflect substantial disparities in negotiation power.

Judge Clawges did not automatically conclude that the arbitration agreement was therefore not enforceable. He looked at the more controversial terms: requiring arbitration to take place in Denver, Colorado (instead of near the place of employment, Morgantown, West Virginia), and requiring the parties to pay their own expenses incurred in the arbitration (which would make the arbitration proceeding significant more expensive for the plaintiff, compared to the cost of filing suit in West Virginia Circuit Court). Those terms would make arbitration significantly more burdensome and expensive for the plaintiff, compared to filing suit and seeking a jury trial. Those results would have made it significantly more likely that a Court would decide the arbitration contract to be "unconscionable", which would make it unenforceable.

TeleTech, to address these more burdensome terms of the arbitration agreement, stipulated (agreed) before Judge Clawges that the location of the arbitration would be Morgantown and that TeleTech would pay for all arbitration costs which would exceed what Clites would have had to pay to file suit in West Virginia Circuit Court.

Judge Clawges, based on the TeleTech stipulation, concluded that the arbitration agreement was not unconscionable, and there concluded it was enforceable.

Clites then appealed to the West Virginia Supreme Court.

The Federal Arbitration Act Does Not Preclude Review

The first issue for the Supreme Court was whether the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), precluded any scrutiny at all over the arbitration agreement in question. The United States Supreme Court has held that the "FAA" established the policy of favoring arbitration of disputes. Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1, 24 (1983). The US Supreme Court also held that the FAA preempts state laws which "undercut" the enforceability of arbitration agreements. Southland Corporation v. Keating, 465 U.S. 1, 11 (1984); Perry v. Thomas, 482 U.S. 483 (1987). This rule also applies to claims specifically created by state legislatures, such as the discrimination claims under the West Virginia Human Rights Act. Mitsubishi Motors Corporation v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985).

While the West Virginia Supreme Court in Clites recognized the fact that the FAA preempts state laws which would undercut the enforceability of arbitration agreement, it held that the "issue of whether an arbitration agreement is a valid contract if a matter of state contract law" and is "capable of state judicial review."

The Arbitration Agreement In Issue Was Not Unconscionable

So the West Virginia Supreme Court proceeded to review TeleTech’s arbitration agreement to determine whether it was enforceable under West Virginia law.

The standard for reviewing arbitration agreements was set out by the West Virginia Supreme Court as follows: An arbitration clause is "presumed" to be "bargained for" and is presumed to intend that the arbitration proceeding is the "exclusive means of resolving disputes arising under the contract". However, where a party alleges that the arbitration agreement was "unconscionable or was thrust upon him because he was unwary and taken advantage of, or that the contract was one of adhesion", then the question is whether the arbitration agreement was "bargained for and valid", and that question is a "matter of law for the court to determine by reference to the entire contract, the nature of the contracting parties, and the nature of the undertakings covered by the contract." (quoting Board of Education of the County of Berkeley v. W. Harley Miller, Inc., 160 W. Va. 473, 236 S.E.2d 439 (1977) (Syllabus Point 3).

The West Virginia Supreme Court, like Judge Clawges at trial, concluded TeleTech’s arbitration agreement was a "contract of adhesion". But that did not "necessarily means that it is invalid, and to determine its validity we look to other factors"

The next step was to determine "whether the Agreement is unconscionable or was thrust upon [the plaintiff] because [she] was unwary and taken advantage of." An analysis of unconscionability "must focus on the relative positions of the parties, the adequacy of the bargaining position, the meaningful alternatives available to the plaintiff, and the existence of unfair terms in the contract." (quoting Art’s Flower Shop, Inc. v. Chesapeake and Potomac Telephone Company of West Virginia, Inc., 186 W. Va. 613, 413 S.E.2d 670 (1991)).

The Supreme Court then focused on the fact that TeleTech’s human resources employee had a meeting of substantial length (90 to 120 minutes) with Clites, and Clites was required, like all other new employees, to sign an arbitration agreement. Furthermore, apparently because of TeleTech’s stipulation, the arbitration agreement required arbitration in Morgantown instead of Denver, and TeleTech agreed to pay the costs of arbitration beyond the costs of filing suit in Circuit Court.

The Court therefore held that TeleTech’s arbitration agreement was not unconscionable and was therefore enforceable. The result of the decision is therefore that Clites will be required to pursue her claim before the American Arbitration Association, and will not be allowed to proceed to a jury trial in West Virginia Circuit Court.

Importance Of The Clites Decision

The first important aspect of the Clites decision is that the reasonableness of an arbitration agreement should be examined in terms of the agreement itself plus any stipulations (agreements) by the employer that might soften the burdensome effects on the employee/plaintiff. The fact that TeleTech’s arbitration agreement required the arbitration to take place in Denver, and required the employee to bear the substantially higher cost of arbitration, would likely have created problems for the enforceability of the agreement. But TeleTech’s stipulations essentially removed those issues.

Therefore, employers faced with troubling terms in an arbitration agreement, from the standpoint of enforcing it in court, may stipulate after the employee files suit to modify the arbitration agreement to make it more likely to pass judicial scrutiny concerning its enforceability.

The second important aspect of Clites is that the Supreme Court carefully limited its ruling to the facts of that case, and indicated that under other circumstances it would carefully scrutinize the arbitration agreements:

• There may be questions of whether "sufficient consideration was given in exchange for the" arbitration agreement. The Court noted that it had previously ruled that an employer’s "promise merely to review an employment application in exchange for a job applicant’s promise to submit employment-related disputes not associated with the application process to arbitration does not represent consideration sufficient to create an enforceable contract to arbitrate such employment disputes." (quoting State ex rel. Saylor v. Wilkes, 216 W. Va. 766, 613 S.E.2d 914 (2005)).
• The Court notes that its precedent has "historically given close scrutiny to adhesion contracts that abrogate a party’s constitutional entitlement to access to the courts."
• The court would be "troubl[ed]" by forum selection clauses, contained in contracts of adhesion, which would require an employee to arbitrate disputes "in far-away jurisdictions, remotely removed from the employee’s actual place of employment or residence."
• It would be "troubling" for an arbitration agreement to require the employee to be "subject to the substantive law of a far-away jurisdiction".

This Clites decision is discussed in my chart of West Virginia Supreme Court decisions.

Prepared by Drew M. Capuder (contact information); Voice: 304-333-5261

Click the line below to open the chart, which is an Adobe Acrobat PDF:

WV Supreme Court Employment Decisions

(click here to download the free Acrobat Reader, if you don’t already have it installed on your computer).

This chart is copyright protected by Drew M. Capuder and Capuder Fantasia PLLC. You have permission to distribute this chart only if you distribute the chart unedited by anyone other than Drew Capuder. In other words, you may distribute this chart only in its original form as downloaded from Drew Capuder’s Employment Law Blog.

Prepared by Drew M. Capuder (contact information); Voice 304-333-5261

That verdict consists of:

• $200,450 for past lost wages and benefits,

• $900,000 for future lost wages and benefits,

• $150,000 for humiliation,

• $150,000 for emotional distress, and

• $350,000 in punitive damages.

Under the West Virginia Human Rights Act (which prohibits age and other forms of discrimination in the workplace), Nagy’s counsel will file a motion additionally requesting attorneys’ fees and expenses.

James Nagy filed suit in Charleston in March 2008 against West Virginia American Water Company, alleging that he was fired in March 2007 because of his age at 53, after 23 years of employment.

James Nagy was represented by Maria W. Hughes and Stephen Weber at Kay Casto & Chaney PLLC. West Virginia American Water Company was represented by Mychal Schulz at Dinsmore & Shohl LLC.

The case is pending in Circuit Court in Kanawha County, West Virginia, before Judge Jennifer Bailey-Walker.

Prepared by Drew M. Capuder (contact information)

Within a few hours of President Obama‘s announcement, the CATO Institute and The Heritage Foundation had significant articles devoted to attacking the nomination. Rush Limbaugh this afternoon called Judge Sotomayor a "racist". Sean Hannity called her a "radical" who had made "outrageous" and "amazing" statements. The liberal sites raced out articles attacking the attackers and defending Judge Sotomayor (Talking Points Memo and The Huffington Post).

The first item that has been circulating about Judge Sotomayor is a statement she made about appellate courts making "policy" during a panel discussion at Duke University in 2005 (note: this clip is lengthier, and provides much more context, than the clips played on most news sites):

This statement is being used to characterize Sotomayor as an "activist" judge who doesn’t recognize that judges "interpret" (but do not "create") law. Personally, I think that argument is nonsense. Judges all the time analyze statutory and constitutional issues by considering the impact in the real world of their potential decisions. Those are "policy" considerations. For example:

• If an employee has to file a charge of discrimination with the EEOC within 300 days of the "unlawful employment practice", does that mean 300 days of the negative performance review that results in lower pay for the employee, or within 300 days of each pay check the employee receives pursuant to the negative performance review? That was the issue in Ledbetter v. Goodyear Tire & Rubber Company, 550 U.S. 618, 128 S. Ct. 2162 (2007).The Supreme Court in Ledbetter made a number of policy-based arguments in favor of its limitation rule, including discussion of a "policy of repose" which makes it "unfair" for the wronged party not to put the employer on notice of a claim within a specific period of time. See my discussion in this blog of the decision.
• If employment discrimination law prohibits retaliation against an employee who opposes discriminatory conduct, what is the level of severity of the employer’s action that is necessary for the courts to recognize a retaliation claim? That was the issue in Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53 (2006).  The Supreme Court examined a broad range of policy considerations that focused on the burdens on employers of various possible rulings, and whether employee complaints would be encouraged or discouraged by possible rulings. See my discussion in this blog on the decision.

There is simply no bright (or muddy) line between "law" and "policy", and judges routinely formulate the most appropriate rule of law by examining how the various options are consistent with or promote various policy considerations.

By the time a case gets to the level of a court of appeals, the judges are frequently presented with competing policy considerations which the parties will argue undergird a proposed interpretation of a statute or a constitutional provision. For example, in Ledbetter v. Goodyear Tire & Rubber Company, 550 U.S. 618, 128 S. Ct. 2162 (2007), the Supreme Court had to interpret a provision of Title VII of the Civil Rights Act of 1964 which dealt with when a person has to file a charge of discrimination with the EEOC. Within 300 days of a discriminatory performance review in (for example) 2001 which suppressed a woman’s pay checks compared to her male peers, or within 300 days of a discriminatory pay check she received in 2008 as a consequence of that performance review? It would be intellectually dishonest to suggest that the answer was crystal clear from the language of the statute. So the Courts, routinely, examine the policy consideration behind the statute in question. In Ledbetter, here is an incomplete list of the competing policy considerations that were relevant to the Court’s decision, and all of these policies are unarguably reflected in the statute (Title VII) and relevant legal principles:

• The policy that Title VII should provide a remedy to the employee for discriminatory decisions by employers.
• The policy that Title VII should act as a deterrent to prevent future discrimination by employers.
• The policy that claims should be presented with reasonable promptness to give defendants fair notice of the claims.
• The policy that claims should be presented with reasonable promptness because claims can be adjudicated more competently before witnesses, memories, documents, or other evidence fade or disappear.

The Supreme Court in Ledbetter focused on the policies relating to prompt presentation of claims, and ruled that Ledbetter was required to file her charge with the EEOC within 300 days of the discriminatory performance review. The dissent in Ledbetter focused on the remedial and preventive policies in Title VII. Congress then overruled the Ledbetter decision and concluded that the Supreme Court had misinterpreted the relevant provisions in and policies of Title VII. The Supreme court, in its decision, by any reasonable definition, "made policy" in the result it reached. So did Congress.

Stay tuned, and I’ll discuss the Sotomayor nomination in coming days and weeks.

Prepared by Drew M. Capuder (contact information)

This was an age discrimination case under the Age Discrimination in Employment Act of 1967 (ADEA). The plaintiff was a member of a union, and the collective bargaining agreement (union contract) required submitting age discrimination claims to binding arbitration.

The US Supreme Court had previously ruled, but not in a labor union setting, that arbitration agreements for ADEA claims were enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-33 (1991)). So the real issue in Penn Plaza was whether there would be a different result because of the union contract setting and the National Labor Relations Act.

The Supreme Court in Penn Plaza, in a divided decision (5-4), held that the arbitration agreement contained in the union contract was enforceable.

The enforceability of arbitration agreements for employment disputes has been a political hot potato, and The Arbitration Fairness Act of 2009 (H.R. 1020) was introduced in the US House on February 12, 2009. The bill has 36 co-sponsors, and has been referred to the House Committee on the Judiciary. If it passes, it would essentially overrule Penn Plaza and other cases which have held that employment pre-dispute arbitration agreements are enforceable.

Prepared by Drew M. Capuder (contact information)

Many people have the incorrect understanding that, in West Virginia, an employer is legally required to allow an employee to review the employee’s personnel file. There is currently no such legal requirement, but the pending HB 3032 will change that if it is passed.

You can review the full text of the bill, and monitor its status on the Legislature’s site.

Prepared by Drew M. Capuder (contact information)

Appointments to these federal judicial positions require the confirmation by the US Senate. The Democrats control at this time 58 votes in the Senate, through 56 Democrats and 2 Independents (Joe Lieberman, CT; Bernie Sanders VT) who caucus with the Democrats. If Al Franken eventually is declared the winner in Minnesota, which is expected, the democrats will have 59 votes. President Obama only needs 51 votes to confirm one of his judicial nominations. If the Republicans chose to filibuster any of President Obama‘s nominations, the Democrats need 60 votes for cloture to cut off the filibuster and force a vote (cloture requires a three-fifths vote of the voting Senators). If the Democrats will be starting with 59 votes, they will likely frequently be able to “peel off” a Republican or two to break the filibuster.

Federal court of appeals nominations are usually made from lawyers with significant prior judicial experience. So the pool of lawyers to be considered will likely by the current federal district judges, and, less likely, current state court judges.

Given Presidential history since 1980, the substantial majority of federal judges are appointees of Republican Presidents (20 years of Republican presidency versus 8 years of Democrat presidency).

Of the current 11 judges on the Fourth Circuit, 6 were Republican appointees and 5 were Democratic appointees (although Judge Gregory was a "hybrid" having originally been appointed by President Clinton and then re-appointed by President George W. Bush). You can view a chart on Wikipedia that sets out the lineup of current judges and the Presidents who appointed them

Assuming President Obama fills all 4 current vacancies, then we will have a realignment on the Fourth Circuit to: 9 Democrat appointees, and 6 Republican appointees.

Prepared by Drew M. Capuder (contact information)

There are currently only 2 members, so there are 3 vacancies. Wilma Liebman is considered liberal and pro-union. Peter Carey Schaumber is considered conservative and pro-management.

President Obama will be able to fill the 3 vacancies, with a likely significant shift in labor law in the United States.

Prepared by Drew M. Capuder (contact information)

Ms. Crawford Responds to an Investigation into Sexual Harassment

Here is what happened: Rumors started circulating about sexually inappropriate behavior by a male supervisor, Gene Hughes, at "Metropolitan Government of Nashville and Davidson County" ("Metro"). A human resources employee started investigating, and asked Vicky Crawford whether she had seen any inappropriate behavior by Mr. Hughes. Crawford responded yes, and described several instances of sexually inappropriate behavior. For example, Ms. Crawford had asked Mr. Hughes "what’s up", and he responded by grabbing his crotch and saying "you know what’s up". On another occasion, Mr. Hughes grabbed Ms. Crawford’s head and pulled it toward his crotch. The human resources employee talked to two other employees who similarly reported sexually harassing behavior from Mr. Hughes.

Although all 3 of those employees reported, in response to questions by Metro’s human resources investigator, sexually offensive behavior by Mr. Hughes, none of them initiated any sexual harassment complaint themselves.

As a result of its investigation, Metro took no action against Mr. Hughes, the harasser. On the other hand, Metro fired Ms. Crawford and the other two employees who answered the HR employee’s questions–all 3 were fired shortly after the investigation into Mr. Hughes was concluded. Ms. Crawford had been employed at Metro for 30 years.

Case Dismissed: Ms. Crawford Didn’t "Oppose" Sexual Harassment

Ms. Crawford then filed a charge of discrimination with the Equal Employment Opportunity Commission, and then filed suit in federal court in Tennessee, claiming she had been fired in retaliation for her reporting of Mr. Hughes’ sexual harassment.

The Trial Court dismissed her lawsuit, and the US Court of Appeals for the Sixth Circuit affirmed the trial court’s decision. The Sixth Circuit agreed that the lawsuit should be dismissed because Ms. Crawford did not initiate her own sexual harassment complaint, but instead simply responded to questions initiated by Metro in Metro’s investigation into the rumors about Mr. Hughes.

Supreme Court Reinstates Ms. Crawford’s Case, Defining "Opposition"

The US Supreme Court concluded that Mr. Crawford satisfied the retaliation provision of Title VII and reinstated her case. This is why.

Title VII‘s retaliation provision, 42 U.S.C. § 2000e-3(a), makes it "an unlawful employment practice for an employer to discriminate against" an employee because:

• the employee has "opposed any practice made an unlawful employment practice " by Title VII (this is called the "opposition clause"), or
• the employee has "made a charge, testified, assisted, or participated" in any "investigation, proceeding, or hearing" under Title VII (this is called the "participation clause").

In addressing the "opposition clause": The Sixth Circuit concluded Ms. Crawford didn’t "oppose" any discriminatory practice because she didn’t file any complaint herself, and because "opposition" requires "active, consistent" opposition activities. Merely responding to the HR employee’s questions, according to the Sixth Circuit, was not "opposition", so the employer was free to take adverse or retaliatory action against Ms. Crawford. The US Supreme Court rejected this reasoning, as I will discuss below.

The Sixth Circuit also addressed the "participation clause" and concluded Ms. Crawford had no protection against retaliation because she had not "participated" in any complaint proceeding under Title VII. The US Supreme Court did not address this ruling.

The US Supreme Court rejected the Sixth Circuit‘s reasoning on the "opposition clause" and reinstated Ms. Crawford’s case.  The US Supreme Court said the word "oppose" in Title VII should be given its "ordinary meaning", in part based on a dictionary definition, to "resist or antagonize", or to "contend against; to confront; resist; withstand".

The US Supreme Court easily found that Ms. Crawford’s responses to the HR employee’s questions constituted "opposition" to Mr. Hughes’ sexually inappropriate behavior. There was "no reason to doubt" that a person can "oppose" by "responding to someone else’s question just as surely" as by "provoking the discussion", and nothing in Title VII requires a "freakish rule" ("ouch!!" says the Sixth Circuit) protecting an employee who "reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question".

Because the US Supreme Court found Ms. Crawford’s case should be reinstated because she satisfied the "opposition clause," the US Supreme Court did not address the question of whether her statements satisfied the "participation clause".

Justices Alito and Thomas, in their opinion concurring in the result, agreed with the "primary" rationale in Justice Souter‘s majority opinion, but were concerned that some of the language in the majority opinion (referencing part of a dictionary definition) could protect an employee who "silently" opposed discriminatory behavior. They thought there would have to be some public manifestation of the opposition, and they thought Ms. Crawford did so.

Prepared by Drew M. Capuder (contact information)