Federal Cases (but not US Supreme Court), Fourth Circuit, Medical Industry Litigation, Result for Employee, Sexual harassment, Summary Judgment

Was the boss “merely crude”, or was he sexually harassing her?

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Sex­u­al harass­ment claims fre­quent­ly require judges and juries to dis­tin­guish between “mere­ly crude” behav­ior, which does­n’t vio­late the employ­ee’s rights, and “sex­u­al harass­ment”, which does. The Fourth Cir­cuit Court of Appeals addressed that issue in EEOC v. Fair­brook Med­ical Clin­ic, PA, 609 F.3d 320 (4th Cir. 2010) (opin­ion at Fourth Cir­cuit’s site), and did­n’t have a lot of trou­ble con­clud­ing that the con­duct in issue could rea­son­ably be viewed by a jury as sex­u­al harass­ment, rul­ing in favor of the employ­ee. One of the key issues was whether the con­duct was “severe or per­va­sive” enough to con­sti­tute a “hos­tile work envi­ron­ment”.  The unan­i­mous opin­ion was writ­ten Judge J. Harvie Wilkin­son III, joined by Judges Andre M. Davis and C. Arlen Beam (from the Eighth Cir­cuit).

Doctor on Doctor Harassment at Fairbrook Medical Clinic

Stethoscope 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.

Con­tin­ue read­ing Was the boss “mere­ly crude”, or was he sex­u­al­ly harass­ing her? →
Result for Employee, Retaliation claims, Title VII of the Civil Rights Act of 1964, US Supreme Court

Analysis: The “No Blood No Foul” Rule. When is an Employer’s Conduct Severe Enough to Constitute Retaliation?

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I pre­vi­ous­ly wrote about the Supreme Court’s retal­i­a­tion deci­sion in Burling­ton North­ern & Sante Fe Rail­way Co. v. White, 548 U.S. 53 (2006) (“Burling­ton North­ern v. White”), in which 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.

National Basketball Association 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.

Con­tin­ue read­ing Analy­sis: The “No Blood No Foul” Rule. When is an Employer’s Con­duct Severe Enough to Con­sti­tute Retal­i­a­tion? →
Arbitration, Result for Employer, WV Human Rights Act, WV Supreme Court

WV Supreme Court Enforces Employment Arbitration Agreement in Clites v. Clawges, 10–13-09

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10–13-09: The West Vir­ginia Supreme Court addressed the enforce­abil­i­ty of employ­ment arbi­tra­tion agree­ments in State ex rel. Clites v. Clawges, 224 W. Va. 299, 685 S.E.2d 693 (2009) (opin­ion at Find­law’s web site). This Clites deci­sion is dis­cussed in my chart of West Vir­ginia Supreme Court deci­sions.

Clites Goes to Work for TeleTech and Signs an Arbitration Agreement

WV Capitol Building 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.

Con­tin­ue read­ing WV Supreme Court Enforces Employ­ment Arbi­tra­tion Agree­ment in Clites v. Clawges, 10–13–09 →
WV Human Rights Act, WV Supreme Court

Chart of West Virginia Supreme Court Decisions on Employment Issues

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WV Supreme Court Justices, click here to open chart of employment decisions

 

 

I have pre­pared a chart con­tain­ing a sum­ma­ry of West Virginia Supreme Court deci­sions sig­nif­i­cant­ly affect­ing employ­ment law. The chart starts on Jan­u­ary 1, 2009, with deci­sions issued after that date. The chart con­tains hyper­links to the opin­ions, both on the West Vir­ginia Supreme Court’s web site, and on Find­law or on Google Schol­ar. If you click on the pho­tos of each Jus­tice (in the chart, not on the image above), that will take you to the biog­ra­phy page for that Jus­tice on the Supreme Court’s web site. Final­ly, the chart con­tains hyper­links to this blog.

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.

US Supreme Court, Vacancies

President Obama Nominates Sonia Sotomayor for Supreme Court

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Sonia Sotomayor Pres­i­dent Oba­ma today announced (CNN sto­ry and video) his nom­i­na­tion of Sonia Sotomay­or, cur­rent­ly a Judge on the Sec­ond Cir­cuit, to fill the posi­tion on the US Supreme Court to be vacat­ed by the res­ig­na­tion of Jus­tice David Souter.

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):

Con­tin­ue read­ing Pres­i­dent Oba­ma Nom­i­nates Sonia Sotomay­or for Supreme Court →
Age Discrimination, Arbitration, Labor Unions, Pending legislation, Result for Employer, US Supreme Court

Arbitration Agreements in Union Contacts are Enforceable; US Supreme Court in Penn Plaza v. Pyett

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4/1/09: The US Supreme Court ruled that “pre-dis­pute arbi­tra­tion agree­ments” in col­lec­tive bar­gain­ing agree­ments (union con­tracts) are enforce­able, in Penn Plaza PLLC v. Pyett, 129 S. Ct. 1456 (2009) (5–4 decision).

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.

Con­tin­ue read­ing Arbi­tra­tion Agree­ments in Union Con­tacts are Enforce­able; US Supreme Court in Penn Plaza v. Pyett →
Pending legislation, WV Legislation

West Virginia Legislature May Force Employers to Give Employees Access to Their Personnel Files

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WVLegislature 3/10/09: In the West Vir­ginia Leg­is­la­ture, HB 3032, intro­duced on March 10, 2009, would give employ­ees the right to review their per­son­nel files.  The leg­is­la­tion has not been passed, and in pri­or leg­isla­tive ses­sions, essen­tial­ly the same bill was intro­duced with­out hav­ing been passed.

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.

Update 8/1/10: As of this date, the West Vir­ginia Leg­is­la­ture has not passed this bill. There is still no gen­er­al require­ment forc­ing employ­ers to show employ­ees their per­son­nel files.

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 →

Employment Law News and Analysis