All posts by Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 30 years of experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261.
Federal Courts, Vacancies

Fourth Circuit Vacancies; President Obama Will Have 4 of 15 Judicial Positions to Fill

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Lewis F Powell Jr. Courthouse, Richmond, Virginia 2/1/09: The US Fourth Cir­cuit Court of Appeals hears appeals from fed­er­al dis­trict courts in West Vir­ginia, Vir­ginia, Mary­land, North Car­oli­na, and South Car­oli­na. The Fourth Cir­cuit has 15 judges when all of the judi­cial posi­tions are occu­pied. How­ev­er, 4 of the 15 judge posi­tions are cur­rent­ly vacant. That means that Pres­i­dent Oba­ma will be able to appoint those 4 judges.

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).

Fourth Circuit MapOf 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.

Labor Unions, Vacancies

NLRB Vacancies: The Potential for Big Changes in Labor Union Law

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NLRB Logo 2/1/09: The Nation­al Labor Rela­tions Board (NLRB) con­sists of 5 mem­bers, and the NLRB issues impor­tant deci­sions on a broad range of labor union issues.

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.

Result for Employee, Retaliation claims, Sexual harassment, US Supreme Court

US Supreme Court Broadens Definition of “Opposition”; for Retaliation Claims; Crawford v Metropolitan Government of Nashville, 1–26-09

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1/26/09: In Craw­ford v. Met­ro­pol­i­tan Gov­ern­ment of Nashville and David­son Coun­ty, Ten­nessee, 129 S. Ct. 846 (2009), the US Supreme Court unan­i­mous­ly ruled that an employ­ee engaged in pro­tect­ed activ­i­ty under Title VII’s retal­i­a­tion pro­vi­sion by answer­ing an employ­er’s ques­tions in con­nec­tion with a sex­u­al harass­ment inves­ti­ga­tion start­ed by com­pa­ny rumors about a male super­vi­sor. Jus­tice Souter wrote the major­i­ty opin­ion, joined by Roberts, Stevens, Scalia, Kennedy, Gins­burg, and Brey­er. Jus­tice Ali­to wrote an opin­ion, con­cur­ring in the judg­ment, joined by Jus­tice Thomas.

Ms. Crawford Responds to an Investigation into Sexual Harassment

USSupremeCourt 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.

Con­tin­ue read­ing US Supreme Court Broad­ens Def­i­n­i­tion of “Oppo­si­tion”; for Retal­i­a­tion Claims; Craw­ford v Met­ro­pol­i­tan Gov­ern­ment of Nashville, 1–26–09 →
Drew Capuder

Drew Capuder’s Employment Law News

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Drew Capuder This blog by Drew Capud­er will be the loca­tion on Capud­er Fan­ta­sia PLLC’s web site for news on employ­ment law. We will cov­er impor­tant court deci­sions, espe­cial­ly from the West Vir­ginia Supreme Court and the Unit­ed States Supreme Court.

The link to this blog is: www.dcemploymentlawblog.com

If you want to sub­scribe to my blog via email, a brows­er, a news read­er, or oth­er method, here is the link that you will need: https://dcemploymentlawblog.com/feed/

Age Discrimination, Result for Employee, Retaliation claims, US Supreme Court

Supreme Court “fills in the blank” to recognize retaliation claims for federal employees under ADEA; Gomez-Perez v. Potter, 2008

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USPS Logo 5–27-08: The US Supreme Court in Gomez-Perez v. Pot­ter, 128 S. Ct. 1931 (2008) ruled that the Age Dis­crim­i­na­tion in Employ­ment Act of 1967, 29 U.S.C. § 621 et seq., pro­hib­it­ed retal­i­a­tion against fed­er­al employ­ees who had com­plained about age dis­crim­i­na­tion, even though the fed­er­al employ­ee sec­tion of the ADEA did not express­ly pro­hib­it retal­i­a­tion. This was a 6–3 deci­sion. The major­i­ty opin­ion was writ­ten by Jus­tice Ali­to, in which Jus­tices Stevens, Kennedy, Souter, Gins­burg, and Brey­er joined. Jus­tices Roberts, Scalia, and Thomas dis­sent­ed, with dis­sent­ing opin­ions being writ­ten by Jus­tices Roberts and Thomas.

The Gap in the Federal Employee Section of the ADEA

This was the prob­lem under the ADEA: The ADEA’s main sec­tion, in pro­hibit­ing dis­crim­i­na­tion against employ­ees 40 and old­er, only deals with pri­vate indus­try employ­ees and state gov­ern­ment employ­ees. I will call this sec­tion of the ADEA, the “pri­vate and state employ­ee sections”.

Con­tin­ue read­ing Supreme Court “fills in the blank” to rec­og­nize retal­i­a­tion claims for fed­er­al employ­ees under ADEA; Gomez-Perez v. Pot­ter, 2008 →
Age Discrimination, Evidence issues, Result for Employee, US Supreme Court

US Supreme Court broadens scope of permissible evidence for proving discrimination; Sprint/United Management v. Mendelsohn; 2/26/08

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US Supreme Court Feb­ru­ary 26, 2008: The Unit­ed States Supreme Court hand­ed down its opin­ion in Sprint/United Man­age­ment Co. v. Mendel­sohn, 128 S. Ct. 1140 (2008) (Find­Law site opin­ion). The issue in this fed­er­al age dis­crim­i­na­tion case (ADEA) was whether the plain­tiff could present evi­dence to the jury about oth­er alleged old­er dis­crim­i­na­tion vic­tims, where the deci­sion made to ter­mi­nate the oth­er indi­vid­u­als was not made by the same deci­sion-mak­er that ter­mi­nat­ed the plaintiff.

The employ­er (Sprint) con­tend­ed that evi­dence of oth­er alleged age dis­crim­i­na­tion vic­tims was not admis­si­ble where the deci­sion-mak­ers for those oth­er vic­tims were dif­fer­ent from the deci­sion-mak­ers who took action against the plaintiff.

The Supreme Court reject­ed the employ­er’s argu­ment and said that the evi­dence of oth­er vic­tims might be admis­si­ble, even if dif­fer­ent deci­sion-mak­ers were involved. The tri­al court should con­duct a “bal­anc­ing test” for admis­si­bil­i­ty of dis­crim­i­na­tion against oth­er employ­ees by dif­fer­ent super­vi­sors, where the rel­e­vance of the oth­er employ­ees’ sit­u­a­tion is bal­anced against unfair prej­u­dice to the employer.

Employment policies, Hostile work environment, National origin discrimination, Prompt remedial action, Religious discrimination, Result for Employer, WV Human Rights Act, WV Supreme Court

WV Supreme Court rules that employer’s policy and prompt action protected it against liability; Colgan Air v. WV HRC; 10/25/07

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West Virginia Capitol Building at Night Octo­ber 25, 2007: In Col­gan Air, Inc. v. West Vir­ginia Human Rights Com­mis­sion, 221 W. Va. 588, 656 S.E.2d 33 (1977) the West Vir­ginia Supreme Court addressed claims of harass­ment (based on reli­gion and nation­al ori­gin) and retal­i­a­tion under the WV Human Rights Act, W. Va. Code § 5–11‑1 et seq.

The plain­tiff was a pilot, Rao Zahid Khan, who alleged that his co-work­ers sub­ject­ed him to fre­quent deroga­to­ry and insult­ing com­ments about his nation­al ori­gin and reli­gion (he was Ara­bic). The West Vir­ginia Supreme Court ruled that Col­gan Air (a) was not liable for harass­ment because it had poli­cies and pro­ce­dures pro­hibit­ing harass­ment and took swift and deci­sive action after learn­ing about the harass­ment, and (b) was not liable for retal­i­a­tion because Col­gan Air ter­mi­nat­ed the employ­ee (Mr. Khan) for a legit­i­mate and non-dis­crim­i­na­to­ry reason–he failed to pass a manda­to­ry FAA pro­fi­cien­cy test for pilots.

Con­tin­ue read­ing WV Supreme Court rules that employer’s pol­i­cy and prompt action pro­tect­ed it against lia­bil­i­ty; Col­gan Air v. WV HRC; 10/25/07 →
Disparate Impact, Equal Pay, Limitations periods, Result for Employer, Sex Discrimination, Title VII of the Civil Rights Act of 1964, US Legislation, US Supreme Court

US Supreme Court rules pay claims must be filed shortly after discriminatory decision; Ledbetter v Goodyear, 5/29/07

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May 29, 2007: In Led­bet­ter v. Goodyear Tire & Rub­ber Com­pa­ny, 550 U.S. 618, 128 S. Ct. 2162 (2007) (Find­Law site opin­ion), the Unit­ed States Supreme Court, in a 5–4 deci­sion, issued an impor­tant deci­sion in a sex dis­crim­i­na­tion case under Title VII of the Civ­il Rights Act of 1964, which sub­stan­tial­ly lim­it­ed the time peri­od avail­able to assert a claim for pay dis­crim­i­na­tion. The Supreme Court affirmed the deci­sion of the Eleventh Cir­cuit in Led­bet­ter v. Goodyear Tire and Rub­ber Com­pa­ny, Inc., 421 F.3d 1169 (11th Cir. 2005).

Ledbetter’s Claims of Sex Discrimination and Lower Pay, and the Trial Result

LillyLedbetter Led­bet­ter filed a charge of sex dis­crim­i­na­tion with the EEOC in 1998 and then lat­er in the year retired. She claimed that, years ear­li­er in her career at Goodyear, male super­vi­sors gave her bad per­for­mance reviews com­pared to what men received. She claimed that Goodyear award­ed rais­es based on those per­for­mance reviews, so that her pay rais­es were reduced as a result of the dis­crim­i­na­to­ry per­for­mance reviews.

Led­bet­ter went to tri­al and per­suad­ed the jury that the per­for­mance reviews, years before she filed her EEOC charge, were dis­crim­i­na­to­ry based on her sex, and the jury found her rights had been vio­lat­ed and award­ed her dam­ages based on her low­er pay­checks through­out her career. The tri­al judge entered a “judg­ment” in Led­bet­ter’s favor based on the jury’s ver­dict. So Led­bet­ter won at tri­al on her sex dis­crim­i­na­tion claim under Title VII. The Eleventh Cir­cuit Court of Appeals threw out the jury ver­dict and tri­al court judg­ment for Led­bet­ter, and entered a judg­ment in favor of Goodyear, based on her fail­ure to file her EEOC charge with­in 180 days of when the per­for­mance reviews had been con­duct­ed. The Unit­ed States Supreme Court affirmed, mean­ing that Goodyear won.

Con­tin­ue read­ing US Supreme Court rules pay claims must be filed short­ly after dis­crim­i­na­to­ry deci­sion; Led­bet­ter v Goodyear, 5/29/07 →
Result for Employee, Retaliation claims, US Supreme Court

US Supreme Court Makes it Easier to Prove Retaliation Claims, in Burlington Northern v. White, 2006

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June 22, 2006: In Burling­ton North­ern & Sante Fe Rail­way Co. v. White, 548 U.S. 53 (2006) (“Burling­ton North­ern v. White”), the US Supreme Court sub­stan­tial­ly broad­ened the abil­i­ty of employ­ees to file retal­i­a­tion claims under Title VII of the Civ­il Rights Act of 1964. It was a unan­i­mous (9–0) decision.

US Supreme Court The Supreme Court broad­ened retal­i­a­tion claims in 2 ways:

First: Retal­ia­to­ry con­duct is not lim­it­ed to 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.