Bernabei & Wachtel Blog

In a dispute over the attorney-client privilege, arising from employment litigation in Georgia, the Supreme Court agreed with the Eleventh Circuit that there was no right to an immediate appeal of orders denying a party’s assertion of the attorney-client privilege. The court’s opinion, by Justice Sotomayor, held that the collateral order doctrine should not be expanded to encompass orders relating to attorney-client privilege issues, partly because there were several other avenues by which the objecting party could seek appellate review. The Supreme Court thus effectively rejected the D.C. Circuit’s decision in the Philip Morris case, which recognized a right to an immediate appeal of such decisions.



Some excerpts follow:

http://www.supremecourtus.gov/opinions/09pdf/08-678.pdf

MOHAWK INDUSTRIES, INC. v. CARPENTER

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 08–678. Argued October 5, 2009—Decided December 8, 2009

When respondent Norman Carpenter informed the human resources department of his employer, petitioner Mohawk Industries, Inc., that the company employed undocumented immigrants, he was unaware that Mohawk stood accused in a pending class action—the Williams case—of conspiring to drive down its legal employees’ wages by knowingly hiring undocumented workers. Mohawk directed Carpenter to meet with the company’s retained counsel in Williams, who allegedly pressured Carpenter to recant his statements. When he refused, Carpenter maintains in this unlawful termination suit, Mohawk fired him under false pretenses. In granting Carpenter’s motion to compel Mohawk to produce information concerning his meeting with retained counsel and the company’s termination decision, the District Court agreed with Mohawk that the requested information was protected by the attorney-client privilege, but concluded that Mohawk had implicitly waived the privilege through its disclosures in the Williams case. The court declined to certify its order for interlocutory appeal, and the Eleventh Circuit dismissed Mohawk’s appeal for lack of jurisdiction, holding, inter alia, that the District Court’s ruling did not qualify as an immediately appealable collateral order under Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, because a discovery order implicating the attorney-client privilege can be adequately reviewed on appeal from final judgment.

Held: Disclosure orders adverse to the attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine.

JUSTICE SOTOMAYOR delivered the opinion of the Court.

Section 1291 of the Judicial Code confers on federal courts of appeals jurisdiction to review “final decisions of the district courts.” 28 U. S. C. §1291. Although “final decisions” typically are ones that trigger the entry of judgment, they also include a small set of prejudgment orders that are “collateral to” the merits of an action and “too important” to be denied immediate review. Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949). In this case, petitioner Mohawk Industries, Inc., attempted to bring a collateral order appeal after the District Court ordered it to disclose certain confidential materials on the ground that Mohawk had waived the attorney-client privilege. The Court of Appeals dismissed the appeal for want of jurisdiction.

The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Post judgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.

…. We readily acknowledge the importance of the attorney client privilege, which “is one of the oldest recognized privileges for confidential communications.” Swidler & Berlin v. United States, 524 U. S. 399, 403 (1998). By assuring confidentiality, the privilege encourages clients to make “full and frank” disclosures to their attorneys, who are then better able to provide candid advice and effective representation. Upjohn Co. v. United States, 449 U. S. 383, 389 (1981). This, in turn, serves “broader public interests in the observance of law and administration of justice.” Ibid.

The crucial question, however, is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders. We routinely require litigants to wait until after final judgment to vindicate valuable rights, including rights central to our adversarial system. . . .

We reach a similar conclusion here. In our estimation, postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege. Appellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence.

Dismissing such relief as inadequate, Mohawk emphasizes that the attorney-client privilege does not merely “prohibi[t] use of protected information at trial”; it provides a “right not to disclose the privileged information in the first place.” Brief for Petitioner 25. Mohawk is undoubtedly correct that an order to disclose privileged information intrudes on the confidentiality of attorney client communications. But deferring review until final judgment does not meaningfully reduce the ex ante incentives for full and frank consultations between clients and counsel.

One reason for the lack of a discernible chill is that, in deciding how freely to speak, clients and counsel are unlikely to focus on the remote prospect of an erroneous disclosure order, let alone on the timing of a possible appeal. Whether or not immediate collateral order appeals are available, clients and counsel must account for the possibility that they will later be required by law to disclose their communications for a variety of reasons—for example, because they misjudged the scope of the privilege, because they waived the privilege, or because their communications fell within the privilege’s crime-fraud exception. Most district court rulings on these matters involve the routine application of settled legal principles. They are unlikely to be reversed on appeal, particularly when they rest on factual determinations for which appellate deference is the norm.

Moreover, were attorneys and clients to reflect upon their appellate options, they would find that litigants confronted with a particularly injurious or novel privilege ruling have several potential avenues of review apart from collateral order appeal. First, a party may ask the district court to certify, and the court of appeals to accept, an interlocutory appeal pursuant to 28 U. S. C. §1292(b). The preconditions for §1292(b) review—“a controlling question of law,” the prompt resolution of which “may materially advance the ultimate termination of the litigation”—are most likely to be satisfied when a privilege ruling involves a new legal question or is of special consequence, and district courts should not hesitate to certify an interlocutory appeal in such cases. Second, in extraordinary circumstances—i.e., when a disclosure order “amount[s] to a judicial usurpation of power or a clear abuse of discretion,” or otherwise works a manifest injustice—a party may petition the court of appeals for a writ of mandamus. Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 390 (2004) (citation and internal quotation marks omitted); see also Firestone, 449 U. S., at 378–379, n. 13. While these discretionary review mechanisms do not provide relief in every case, they serve as useful “safety valve[s]” for promptly correcting serious errors. Digital Equipment, 511 U. S., at 883.

Another long-recognized option is for a party to defy a disclosure order and incur court-imposed sanctions. District courts have a range of sanctions from which to choose, including “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action,” “prohibiting the disobedient party from supporting or opposing designated claims or defenses,” or “striking pleadings in whole or in part.” Fed. Rule Civ. Proc. 37(b)(2)(i)–(iii). Such sanctions allow a party to obtain postjudgment review without having to reveal its privileged information. Alternatively, when the circumstances warrant it, a district court may hold a non-complying party in contempt. The party can then appeal directly from that ruling, at least when the contempt citation can be characterized as a criminal punishment. See, e.g., Church of Scientology of Cal. v. United States, 506 U. S. 9, 18, n. 11 (1992); Firestone, 449 U. S., at 377; Cobbledick v. United States, 309 U. S. 323, 328 (1940); see also Wright & Miller §3914.23, at 140–155.

[Alan R. Kabat, Bernabei & Wachtel PLLC]

D.C. Court of Appeals, Reasonable Accommodation decision

The D.C. Court of Appeals, in a DCHRA disability discrimination case brought by a non-attorney employee at Covington & Burling, holds that the continuing violation doctrine does not apply to reasonable accommodation claims brought by a disabled employee, thereby barring her older claims, and upholding summary judgment to the employer on the older claims. The court remands for consideration of the reasonable accommodation claims that do fall within the statute of limitations period.

Some excerpts follow. The decision is online at:

http://www.dcappeals.gov/dccourts/appeals/pdf/07-CV-1301_MTD.PDF

Barrett v. Covington & Burling LLP

, No. 07-CV-1301 (D.C. Sept. 10, 2009)

Appeal from the Superior Court of the District of Columbia

(CAB5478-05)

(Hon. Melvin R. Wright, Trial Judge)

(Argued March 11, 2009 Decided September 10, 2009)

Heather G. White

, with whom George M. Chuzi was on the brief, for appellant.

James E. McCollum, Jr.

, for appellee.

Before REID, FISHER, and BLACKBURNE-RIGSBY, Associate Judges.

FISHER, Associate Judge:

Appellant Kathleen Barrett sued the law firm of Covington & Burling, alleging that it had denied reasonable accommodations for her medical condition, subjected her to a hostile work environment, and terminated her employment, all in violation of the District of Columbia Human Rights Act. D.C. Code § 2-1402.11 (2001). The trial court granted summary judgment in Covington’s favor, and this appeal followed. We affirm in large part, but reverse and remand for further proceedings with respect to a portion of the reasonable accommodation claim. . . .

IV. Most of Appellant’s Reasonable Accommodation Claim Is Barred by the Statute of Limitations

In her July 16, 2005, complaint, appellant alleges that "[b]eginning on or around April 2003 and continuing until August 2004, [appellee] denied [her] a reasonable accommodation . . . ." Ms. Barrett points to several incidents in support of her claim that Covington failed to reasonably accommodate her disability, including: a March 2003 denial of her request to work on a part-time basis and/or telecommute for part of the week; delay in providing her with a zero gravity chair and modified desk from March 2003 through June 2003; a denial of her June 2003 request that she be allowed to bring her own ergonomic equipment into the office; failure to allow her to work from home in June 2003; the denial of repeated requests between April 2003 and February 2004 for permission to telecommute and/or work on a modified schedule; and a July 2004 conversation and an August 23, 2004, letter in which Covington allegedly refused to reasonably accommodate her disability.

Appellant encourages us to consider her allegations as a whole, arguing that we should transplant the continuing violation doctrine applied to hostile work environment claims into the context of failure to accommodate claims. Unlike a hostile work environment claim, however, a reasonable accommodation claim is based on discrete acts, not on prolonged or repeated conduct. Consequently, we reject appellant’s invitation to treat failure to accommodate claims in the same way as hostile work environment claims, and instead adopt the approach taken by the United States Supreme Court in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), and applied to the context of reasonable accommodations by the First Circuit in Tobin v. Liberty Mutual Insurance Co., 553 F.3d 121 (1st Cir. 2009), and by the United States District Court in Long v. Howard University, 512 F. Supp. 2d 1 (D.D.C. 2007), aff’d, Long v. Howard University, 384 U.S. App. D.C. 21, 550 F.3d 21 (2008).

. . . In Long v. Howard University, the United States District Court for the District of Columbia held that "there is no principled basis for declining to apply Morgan to denials of requests for reasonable accommodation under the . . . [Americans with Disabilities Act]." 512 F. Supp. 2d at 16 (noting that "many courts have held that an alleged failure to provide a requested accommodation under the . . . ADA is also a ‘discrete act’ under Morgan and thus cannot rest on a continuing violation theory to make it timely" (footnote omitted)).

We adopt the rationale of Morgan, Tobin, and Long, and hold that the continuing violation doctrine does not apply to reasonable accommodation claims. See also Davidson v. America Online, Inc., 337 F.3d 1179, 1185 (10th Cir. 2003) (applying Morgan to reasonable accommodation claims and holding that "plaintiffs are now expressly precluded from establishing a continuing violation exception for alleged discrete acts of discrimination occurring prior to the limitations period, even if sufficiently related to those acts occurring within the limitations period"); Elmenayer v. ABF Freight System, Inc., 318 F.3d 130, 134-35 (2d Cir. 2003) ("The rejection of a proposed accommodation is a single completed action when taken" and the continuing violation doctrine is therefore inapplicable.); Isse v. American University, 540 F. Supp. 2d 9, 28 (D.D.C. 2008) (deciding that with respect to discrimination based on religion, "a rejection of a request for an accommodation is a ‘discrete act of discrimination’ . . . and not a ‘continuing violation’"); Blanchet v. Chevron/Texaco Corp., 368 F. Supp. 2d 589, 598 (E.D. Tex. 2004) ("In contrast to a claim alleging a hostile work environment, the continuing violation doctrine does not apply to a claim based on discrete discriminatory acts.")

Because the continuing violation doctrine does not apply to reasonable accommodation claims, a plaintiff cannot "reach back" and base a claim on otherwise time-barred incidents merely because they are connected to events which occurred within the limitations period. A one-year statute of limitations applies to claims alleging discrimination in violation of the DCHRA. See D.C. Code § 2-1403.16 (a) (2001) ("A private cause of action pursuant to this chapter shall be filed in a court of competent jurisdiction within one year of the unlawful discriminatory act . . . ."). Consequently, the statute of limitations bars any claim for relief based on denials of accommodation that occurred more than one year prior to the filing of appellant’s complaint.

According to appellant’s own pleading, the alleged discrimination did not extend beyond August 2004, and the vast majority of the actions Ms. Barrett complains of occurred more than one year before she filed her complaint. Appellant points to only two events that took place within the twelve months prior to appellant’s July 16, 2005, complaint: appellant’s July 23, 2004, conversation with Mary Ellen Carter (the content of which was described in a July 23 e-mail from Ms. Carter to Jeffrey Huvelle); and Mr. Huvelle’s August 23, 2004, letter.

. . . Based on the record before us, and the briefs filed by the parties, we are not convinced there is no genuine issue of material fact regarding the merits of Ms. Barrett’s claims based on events that occurred in July and August of 2004. Although it appears uncontested that appellant had a disability, the parties debate whether she was capable of performing the job even with a reasonable accommodation. We agree with appellant that this issue must be evaluated by focusing on her medical condition during those two months – not at some earlier or later time. Further inquiry into the essential functions of the job is also required.

We therefore remand for further consideration of whether those discrete acts constituted a failure to grant a reasonable accommodation in violation of the DCHRA. [4] The parties and the trial court should focus anew on whether, during July and August, appellant was seeking a new accommodation or merely trying to revive a time-barred claim; whether appellant was a qualified individual under the DCHRA; whether Covington unreasonably revoked an accommodation previously granted; and whether Covington failed to reasonably accommodate Ms. Barrett’s disability.

[Footnote 4] The events which occurred outside the statute of limitations are no longer actionable, but they may provide context for appellant’s timely claims. See Morgan, 536 U.S. at 113 ("Nor does the statute [of limitations] bar an employee from using the prior acts as background evidence in support of a timely claim."). . . .

[Alan R. Kabat, Bernabei & Wachtel, PLLC]

Sarbanes-Oxley whistleblower claims by in-house counsel

The U.S. Court of Appeals for the Ninth Circuit issued an interesting decision involving Sarbanes-Oxley (SOX) whistleblower claims brought by two former in-house counsel at a gaming company. The plaintiffs alleged that they were terminated after reporting that a supposed asset of the company (several patents) that the company used in its valuation during a corporate takeover was actually worthless.

The decision is worth noting on two points. First, it confirms that in-house counsel are protected under the whistleblower statutes, even though the attorney-client privilege may have to be addressed during discovery and at trial. Second, it rejects the view of some other courts that a whistleblower must prove actual fraud, since only a reasonable belief that the employer engaged in fraud is required.

Some excerpts follow.

http://www.ca9.uscourts.gov/datastore/opinions/2009/08/13/07-16597.pdf

Van Asdale v. International Game Technology, Inc., No. 07-16597 (9th Cir. Aug. 13, 2009)

Appeal from the United States District Court for the District of Nevada

Robert A. McQuaid, Magistrate Judge, Presiding

Argued and Submitted

March 12, 2009—San Francisco, California

Filed August 13, 2009

Before: J. Clifford Wallace, Sidney R. Thomas, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

COUNSEL

Margo Piscevich (argued), Mark J. Lenz, Piscevich & Fenner, Reno, Nevada, for the plaintiffs-appellants.

Richard G. Campbell Jr. (argued), Lance P. Maiss, Armstrong Teasdale LLP, Reno, Nevada, Gordon E. Krischer, Nathaniel L. Dilger, Mark W. Robertson, O’Melveny & Myers LLP, Los Angeles, California, for the defendant-appellee.

OPINION

BYBEE, Circuit Judge:

This case presents our first opportunity to examine the substantive requirements necessary to establish a claim under the whistleblower-protection provisions of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A.

Plaintiffs Shawn and Lena Van Asdale appeal from the district court’s summary judgment in favor of their former employer, International Game Technology ("IGT"), on their claim of retaliatory discharge in violation of § 1514A, as well as the district court’s dismissal of their factually-related Nevada state-law claims. We conclude that the Van Asdales raised a genuine issue of material fact regarding the cause of their terminations and that summary judgment should not have been granted. We reverse the district court’s summary judgment in favor of IGT on the Van Asdales’ Sarbanes-Oxley claim and vacate the dismissal of their state-law claims. . . .

. . . A. Attorney-Client Privilege

. . . IGT next argues that, irrespective of the specific rules applicable to Illinois-licensed attorneys, the Van Asdales should not be permitted to maintain their Sarbanes-Oxley claim because doing so requires use of attorney-client privileged information. IGT reasons that the Van Asdales’ only evidence of protected activity consists of a conversation the two had with Johnson regarding a pending litigation matter involving the company.

There are few federal circuit court cases addressing the right of in-house counsel to use attorney-client privileged information in a retaliation suit. In Willy v. Administrative Review Board, 423 F.3d 483 (5th Cir. 2005), an in-house attorney brought suit against his former employer, alleging retaliation as a result of a report he had written; it was undisputed that the contents of the report were covered by the attorney-client privilege. Id. at 494 n.48. The Fifth Circuit allowed the suit to go forward, rejecting the notion "that the attorney-client privilege is a per se bar to retaliation claims under the federal whistleblower statutes, i.e., that the attorney-client privilege mandates exclusion of all documents subject to the privilege." Id. at 500. However, Willy involved a claim before an administrative law judge and the Fifth Circuit expressly reserved the question of whether its holding would apply to "a suit involving a jury and public proceedings." Id. at 500-01.

Similarly, in Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173 (3d Cir. 1997), the Third Circuit held that a former in-house attorney could maintain a Title VII suit for retaliatory discharge; the Third Circuit reasoned that "concerns about the disclosure of client confidences in suits by in-house counsel" did not alone warrant dismissal of the plaintiff ’s action. Id. at 181. Rather, the Third Circuit suggested that a district court should "balanc[e] the needed protection of sensitive information with the in-house counsel’s right to maintain the suit," while considering any protective measures that might be taken at trial to safeguard confidential information. Id. at 182.

Although neither case is precisely on point, we agree with the careful analysis of the Third and Fifth Circuits and hold that confidentiality concerns alone do not warrant dismissal of the Van Asdales’ claims. As a threshold matter, it is not at all clear to us to what extent this lawsuit actually requires disclosure of IGT’s confidential information. Shawn and Lena allege that they raised claims of shareholder fraud at their November 24, 2003 meeting with Johnson and that they were terminated in retaliation for these allegations. There is no reason why the district court cannot limit any testimony regarding this meeting to these alleged disclosures, while avoiding testimony regarding any litigation-related discussions that also took place. To the extent this suit might nonetheless implicate confidentially-related concerns, we agree with the Third Circuit that the appropriate remedy is for the district court to use the many "equitable measures at its disposal" to minimize the possibility of harmful disclosures, not to dismiss the suit altogether. Id. at 182.

We also note that the text and structure of the Sarbanes-Oxley Act further counsel against IGT’s argument. Section 1514A(b) expressly authorizes any "person" alleging discrimination based on protected conduct to file a complaint with the Secretary of Labor and, thereafter, to bring suit in an appropriate district court. Nothing in this section indicates that in-house attorneys are not also protected from retaliation under this section, even though Congress plainly considered the role attorneys might play in reporting possible securities fraud. See, e.g., 15 U.S.C. § 7245. We thus agree with the district court that dismissal of the Van Asdales’ claims on grounds of attorney-client privilege is unwarranted.

B. Sarbanes-Oxley Act

. . . To be sure, Brown testified that she did not believe Shawn used the words "fraud," "fraud on shareholders," or "stock fraud" and she could only say that Shawn "may have" used the term "Sarbanes-Oxley" or "SOX"; the record similarly contains no evidence that Shawn used any such language in his conversation with Pennington. However, as the Fourth Circuit has recognized, "[a]n employee need not cite a code section he believes was violated" to trigger the protections of § 1514A. Welch, 536 F.3d at 276 (internal quotation marks omitted). It is clear to us that, taking the facts in the light most favorable to the Van Asdales, Shawn’s statements to both Brown and Pennington reported conduct that definitively and specifically related to shareholder fraud. That is all that § 1514A requires.

. . . . As noted above, § 1514A prohibits discriminating against an employee for "provid[ing] information . . . regarding any conduct which the employee reasonably believes constitutes a violation of" a listed law. The plain language of this section, as well as the statute’s legislative history and case law interpreting it, suggest that to trigger the protections of the Act, an employee must also have (1) a subjective belief that the conduct being reported violated a listed law, and (2) this belief must be objectively reasonable. See Harp v. Charter Commc’ns, Inc., 558 F.3d 722, 723 (7th Cir. 2009); Day, 555 F.3d at 54; Welch, 536 F.3d at 275; Allen, 514 F.3d at 477 ("We agree that an employee’s reasonable belief must be scrutinized under both a subjective and objective standard."); S. Rep. No. 107-146, at 19 (2002) ("[S]ubsection (a)(1) . . . is intended to impose the normal reasonable person standard used and interpreted in a wide variety of legal contexts.").

We first address whether the circumstances in which the Van Asdales found themselves permitted them to form an objectively reasonable belief that the apparent failure to disclose the Australian Flyer to IGT prior to the merger constituted shareholder fraud. We agree with the First Circuit that, "[t]o have an objectively reasonable belief there has been shareholder fraud, the complaining employee’s theory of such fraud must at least approximate the basic elements of a claim of securities fraud." Day, 555 F.3d at 55.

. . . It is not critical to the Van Asdales’ claim that they prove that Anchor officials actually engaged in fraud in connection with the merger; rather, the Van Asdales only need show that they reasonably believed that there might have been fraud and were fired for even suggesting further inquiry. To encourage disclosure, Congress chose statutory language which ensures that "an employee’s reasonable but mistaken belief that an employer engaged in conduct that constitutes a violation of one of the six enumerated categories is protected." Allen, 514 F.3d at 477. We think that the Van Asdales have met this minimal threshold requirement.

We also conclude that the Van Asdales had a subjective belief that the conduct that they were reporting violated a listed law. The legislative history of Sarbanes-Oxley makes clear that its protections were "intended to include all good faith and reasonable reporting of fraud, and [that] there should be no presumption that reporting is otherwise, absent specific evidence." 148 Cong. Rec. 57420 (daily ed. July 26, 2002) (statement of Sen. Leahy). In this case, there is no evidence that Shawn’s various complaints were made in bad faith and IGT does not suggest otherwise.

. . . . The district court’s conclusion that this testimony precluded Lena from claiming protection under the Sarbanes-Oxley Act is contrary to the language of § 1514A. Although Lena acknowledged that she "hadn’t reached a conclusion" as to whether fraud had occurred, the context of this statement was Lena’s discussion of the need for an investigation. Moreover, in passing the Sarbanes-Oxley Act, Congress noted the existence of "a culture, supported by law, that discourage[s] employees from reporting fraudulent behavior not only to the proper authorities, such as the FBI and the SEC, but even internally." S. Rep. No. 107-146, at 5 (2002). Requiring an employee to essentially prove the existence of fraud before suggesting the need for an investigation would hardly be consistent with Congress’s goal of encouraging disclosure. . . .

[Alan R. Kabat, Bernabei & Wachtel, PLLC]

Disability claims and the EEOC charge

Judge Bates issued an interesting decision in a DCHRA and ADA disability discrimination and retaliation case brought by a former office worker at Georgetown University Hospital. The plaintiff alleged that she was discriminated against on the basis of her asthma (which was triggered by a temporary transfer to the Emergency Room), and subsequently retaliated against for having made a request for accommodation that instead led to her termination.

There is good language in the opinion about how the plaintiff was not required to "check the retaliation box" or use magic words in her EEOC charge in order to exhaust her retaliation claims – and it is surprising that employers continue to invoke this defense to retaliation claims.

And, the court has to explain, yet again, that DCHRA claims are tolled while a charge is pending with the EEOC, but that did not stop this employer from asserting that defense.

Judge Bates allowed plaintiff to amend her complaint to clarify the nature of her disability claims, while also allowing Georgetown the opportunity to take limited additional discovery specifically related to those amendments.

Some excerpts follow:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1174-39

Ellis v. Georgetown Univ. Hosp., No. 08-1174 (JDB) (D.D.C. June 6, 2009)

Plaintiff Lakeisha Ellis brings this action against her former employer, Georgetown University Hospital ("Georgetown" or the "Hospital"), alleging disability discrimination and retaliation in violation of federal anti-discrimination laws and the District of Columbia Human Rights Act ("DCHRA"). Now before the Court are Georgetown's motion for partial dismissal of plaintiff's amended complaint or, in the alternative, for summary judgment and Ellis's motion for leave to file a second amended complaint. In its motion, Georgetown contends that Ellis's retaliation claims should be dismissed because she failed to exhaust her administrative remedies. Georgetown also asserts that Ellis's retaliation claim under the DCHRA is barred by the relevant statute of limitations. Ellis opposes Georgetown's motion, arguing that her retaliation claims are not defective and should be allowed to proceed. With respect to her own motion, Ellis portrays her proposed second amended complaint as simply a clarification of her existing claims. . . .

. . . In responding to the [EEOC] questionnaire, Ellis checked the box indicating her belief that she had been discriminated against because of her disability. Pl.'s Ex. 1 at 3. She did not, however, check the box indicating that she had been subject to retaliation. Id. On December 13, 2006, Ellis filed a formal Charge of Discrimination against the Hospital with the EEOC. Pl.'s Ex. 3 (Dec. 13, 2006 EEOC Charge of Discrimination). Once again, Ellis marked the box alleging that the Hospital had discriminated against her based on her disability, but she did not mark the box alleging that she had been the victim of retaliation. . . .

A. Exhaustion of Administrative Remedies.

. . . As an initial matter, "[w]hile the boxes aid a claimant in identifying the nature of her charge, a claimant is not necessarily limited to the boxes she selected if she provides the basis for her claim in her written explanation." Robinson-Reeder v. Am. Council Educ., 532 F. Supp. 2d 6, 13 (D.D.C. 2008); see also Maryland v. Sodexho, Inc., 474 F. Supp. 2d 160, 162 (D.D.C. 2007) (explaining that while the EEOC charge form makes it easy to identify the nature of the charge "with its boxes that an employee can merely check," an employee "need only describe it in the text of the charge form" if he is unsure which box applies). Because Ellis failed to select the "Retaliation" box in her formal EEOC charge, the Court must examine her written explanation. See Pl.'s Ex. 3. Although Ellis does not specifically mention "retaliation," the Court's task is not to search for magic words -- it must parse the substance of the allegations to determine whether they "fairly embrace" a retaliation claim. Marshall, 130 F. 3d at 1098. . . .

. . . Although she was not required to allege facts sufficient to make out a prima facie case of retaliation in her EEOC charge -- and, indeed, is under no such pleading obligation even with respect to her complaint in this case, see Swierkiewicz, 534 U.S. at 510-11 (rejecting the creation of a heightened pleading standard in discrimination cases that would require plaintiffs to plead the elements of a prima facie case) -- careful examination of her charge reveals that Ellis did allege facts sufficient to do so.

First, following her illness in late July 2006, Ellis alleges that she spoke to her supervisor, Fannice Beckett, and informed her that, after consulting with her doctor, she "would not be able to work in the Emergency Department because of how it affects the symptoms of [her] disability." Pl.'s Ex. 3. She further alleges that just days later, on July 31, 2006, she "was called into a meeting with Fannice Beckett and the Department Director, Cindy Hecker, to discuss if they had chosen to make accommodations" for her with respect to her asthma and her request to work outside of the Emergency Department. Id. Hence, as alleged in her EEOC charge, Ellis made a request for an accommodation -- not to work in the Emergency Department -- based on her putative disability. . . . Second, Ellis plainly alleges that she was subjected to an adverse employment action because she was "terminated from [her] position" soon after requesting an accommodation. Pl.'s Ex. 3. Finally, the temporal proximity of Ellis's termination to her accommodation request -- just two days later -- is sufficient to establish the necessary causal link between the adverse employment action and the protected activity. See, e.g., Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir. 2007) (stating that temporal proximity can support an inference of causation where the two events are "very close" in time).

In view of these allegations, the Court concludes that the facts set forth in Ellis's December 13, 2006 EEOC charge, while not labeled as such, were nevertheless sufficient to raise a retaliation claim. Consequently, the Court rejects Georgetown's contention that Ellis failed to exhaust her administrative remedies with respect to her retaliation claim because the allegations contained in her EEOC charge "fairly embrace" such a claim. . . .

B. Statute of Limitations -- DCHRA Retaliation Claim

. . . When a charge of discrimination is filed with the EEOC in the District of Columbia, a claim is automatically cross-filed with the D.C. Office of Human Rights ("DCOHR") pursuant to a "worksharing agreement" between the two agencies. 29 C.F.R. § 1601.13(a)(4)(ii)(A); see Carter v. George Washington Univ., 387 F.3d 872, 879 (D.C. Cir. 2004). Pursuant to D.C. Code § 2-1403.16(a), "[t]he timely filing of a complaint with the [DCOHR] . . . shall toll the running of the statute of limitations while the complaint is pending." Cases interpreting this provision have established that the timely filing of a charge with the EEOC, and the automatic cross-filing of a claim with the DCOHR that follows, is sufficient to toll the one-year statute of limitations for filing a claim under the DCHRA. See Zelaya v. UNICCO Serv. Co., 587 F. Supp. 2d 277, 283 (D.D.C. 2008); Ibrahim v. Unisys Corp., 582 F. Supp. 2d 41, 45 (D.D.C. 2008); Ware v. Nicklin Assocs., Inc., 580 F. Supp. 2d 158, 164 (D.D.C. 2008); Estenos v. PAHO/WHO Fed. Credit Union, 952 A.2d 878, 886 (D.C. 2008).

Ellis filed her EEOC charge on December 13, 2006, just over four months after the alleged retaliatory act (her termination) occurred. Her charge was pending with the EEOC – and the DCHRA statute of limitations was tolled by virtue of the cross-filing of a claim with the DCOHR -- until April 4, 2008 when the EEOC issued a Right to Sue Letter. A little over three months later, on July 7, 2008, this action was commenced. Hence, by the time Ellis filed suit, less than eight months had elapsed for statute of limitations purposes and, accordingly, her DCHRA retaliation claim appears to have been timely filed. . . .

Discovery sanctions decision

In a whistleblower and disability discrimination case brought by a social worker, Judge Sullivan issued an interesting electronic discovery decision, finding that the District of Columbia government willfully destroyed emails several months after being put on notice of the need to preserve the emails, and failed to produce backup emails that were in offsite storage, so that monetary sanctions, as well as additional depositions of D.C. employees at D.C.’s expense, were warranted.

Some excerpts follow:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2006cv1705-62

Ripley v. District of Columbia, et al.,

No. 2006-CV-1705 (EGS) (D.D.C. July 2, 2009)

. . . On January 18, 2008, the District admitted that it destroyed evidence – e-mails from Stowe and Ahluwalia. Defendants were on notice of the nature of this litigation at least eight months before Stowe’s e-mails were destroyed and at least eighteen months before Ahluwalia’s e-mails were destroyed. A party has an obligation to preserve material "when a party should have known that the evidence might be relevant to future litigation." Mazloum v. D.C. Metro. Police Dep’t, 530 F. Supp. 2d 282, 291 (D.D.C. 2008). In August 2008, defendants told plaintiff that e-mails from back-up tapes could not be recovered. Defendants’ duty to preserve material evidence first arose before litigation, as the duty arises "when a party reasonably should know that the evidence may be relevant to anticipated litigation." Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001); see also Leon v. IDX Systems Corp., 464 F.3d 951, 959 (9th Cir. 2006) ("A party’s destruction of evidence qualifies as willful spoliation if the party has ‘some notice that the documents were potentially relevant to the litigation before they were destroyed.’" (quoting United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002))). Defendant had notice of the litigation, yet failed to properly protect material evidence from destruction.

In defendants’ original opposition, they claimed to have produced all available e-mails in their possession that were non-privileged and responsive to plaintiff’s discovery requests. Defendants asserted that Stowe’s e-mails were archived and her computer was wiped clean and recycled, per agency practice, before the District had notice of plaintiff’s lawsuit. Defendants also argued that they had repeatedly searched for e-mails and that they did not find anything else that would be responsive to plaintiff’s request. Based on these contentions, defendants opposed the motion to compel, arguing that plaintiff sought the production of documents that the District was unable to produce. Plaintiff challenged defendants on these contentions in her reply.

Defendants’ sur-reply acknowledged that after further supervisory review of its earlier filing pursuant to a court order issued in another case, it found back-up tapes from its storage facility that contained thousands of e-mails that were responsive to plaintiff’s request. . . .

. . . Accordingly, Plaintiff’s motion to compel is GRANTED. Defendants are ORDERED to (1) supplement their discovery responses; (2) make available Brady Birdsong, Donna Whitman, and Kevin Bell for depositions at defendants’ expense; and (3) provide competent witnesses pursuant to Rule 30(b)(6) for depositions to address e-mail destruction and preservation at defendants’ expense. The Court now turns to the issue of sanctions.

B. Motion for Sanctions

The Court notes that its April 6, 2007 Scheduling Order clearly states, "[c]ounsel are hereby notified that the party that does not prevail on the discovery dispute shall pay the costs involved, including attorney’s fees." Scheduling Order, Apr. 6, 2007, Docket Entry #8.

Defendants argue that its failure to produce certain e-mails was inadvertent and not a basis for sanctions. For all of the reasons above, and for the additional reasons below, the Court will impose sanctions on the defendants. Defendants assert that this discovery dispute involves no bad faith on their part, and that the newly discovered e-mails were not the result of plaintiff’s motions. Whether or not the newly discovered e-mails were the result of plaintiff’s motions is of no consequence. Plaintiff’s attorneys have been extremely diligent since January 2008 in requesting documents and supplemental information. While it is plausible that defendants did not intentionally hide documents, it is clear that defendants were not as meticulous as they could have been with plaintiff’s discovery requests and with their duty to supplement.

Federal Rule of Civil Procedure 37(e) prohibits a Court from imposing sanctions only if a party fails "to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." Fed. R. Civ. P. 37(e). Defendants, however, did not operate their e-mail system in a routine, good-faith manner. Deposition testimony from Wilson Ndeh, CFSA’s Technology Manager, demonstrates that defendants were unable to provide electronically stored information only because they had not searched all of the available files. Dep. of Wilson Ndeh, at 23:8. Ndeh’s testimony made clear that there are back-ups of all e-mails – a point defendants repeatedly ignored up until the filing of the instant motions.

For eight months, plaintiff asserted that defendants had more information. Defendants routinely missed production deadlines and told plaintiff that they had provided all information responsive to plaintiff’s discovery requests. At one point, in response to plaintiff’s repeated requests for back-up files that Ndeh testified existed, defendants’ counsel wrote in an e-mail, "[t]here are no more back ups. Please stop asking for them." Pl. Mot. at 11. It was only after plaintiff filed this motion, and its reply to defendants’ opposition – which pointed out the possibility that documents might be in the District’s storage facility – that defendants found other documents in the District’s storage facility. In its reply, plaintiff pointed to specific deposition testimony from the CFSA Chief Technology Officer that indicated that "every e-mail is backed up." Ndeh Dep. at 23:8. Only then did the defendants finally acknowledge that they had back-up tapes of e-mails and offer to produce the back-up tapes and make witnesses available for further deposition. Rule 37(e) does not stand in the way of relief plaintiff seeks.

Plaintiff’s motion for sanctions is GRANTED.

[Alan R. Kabat, Bernabei & Wachtel, PLLC]

Whistleblowers who provide information to Congress

The Obama Administration has resumed the previous administration’s practice of issuing “signing statements” that purport to limit the scope of Congressional bills.  Thus, yesterday’s signing statement for the $410 billion spending bill attempts to limit the provision that protects federal employees who provide information to Congress. 

In fact, although the NY Times described this as a whistleblower provision, it does not create any rights for the whistleblower; instead it instructs the agency that it cannot pay the salary of those who prevent federal employees from providing info to Congress. 

The relevant excerpts of the signing statement and the legislation are set forth below:

THE WHITE HOUSE

Office of the Press Secretary
_________________________________________________________________
For Immediate Release                                        March 11, 2009

STATEMENT BY THE PRESIDENT

Today I have signed into law H.R. 1105, the "Omnibus Appropriations Act, 2009." This bill completes the work of last year by providing the funding necessary for the smooth operation of our Nation's Government.

As I announced this past Monday, it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for Presidential signature includes provisions that are subject to well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of the bill raise constitutional concerns.

 . . .

• Executive Authority to Control Communications with the Congress. Sections 714(1) and 714(2) in Division D prohibit the use of appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress. I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.

. . .  

BARACK OBAMA

THE WHITE HOUSE,
March 11, 2009.

 

The legislation for which the DOJ and White House had concerns is as follows:

 SEC. 714. No part of any appropriation contained in this or any other Act shall be available for the payment of the salary of any officer or employee of the Federal Government, who—

 (1) prohibits or prevents, or attempts or threatens to prohibit or prevent, any other officer or employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress in connection with any matter pertaining to the employment of such other officer or employee or pertaining to the department or agency of such other officer or employee in any way, irrespective of whether such communication or contact is at the initiative of such other officer or employee or in response to the request or inquiry of such Member, committee, or subcommittee; or

 (2) removes, suspends from duty without pay, demotes, reduces in rank, seniority, status, pay, or performance or efficiency rating, denies promotion to, relocates, reassigns, transfers, disciplines, or discriminates in regard to any employment right, entitlement, or benefit, or any term or condition of employment of, any other officer or employee of the Federal Government, or attempts or threatens to commit any of the foregoing actions with respect to such other officer or employee, by reason of any communication or contact of such other officer or employee with any Member, committee, or subcommittee of the Congress as described in paragraph (1)

 [Alan R. Kabat, Bernabei & Wachtel, PLLC]

Fourth Circuit, FMLA decision

The Fourth Circuit upheld the jury’s and court’s determination on damages and attorney’s fees on a successful FMLA claim, but remanded since the district court failed to account for interest on part of the damages.  The appellate opinion is written by Senior District Judge Cacheris, sitting by designation.

 Some excerpts follow on (1) whether the employer is on notice of FMLA issues; (2) after-acquired evidence issue, which may have limited the jury’s verdict for the plaintiff; (3) denial of front pay award to plaintiff; (4) pre-judgment interest; (5) liquidated damages under FMLA; and (6) attorney’s fee award.

 http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/071920.P.pdf

 Dotson v. Pfizer, Inc., No. 07-1920 (4th Cir. Mar. 4, 2009)

 Appeals from the United States District Court for the Eastern District of North Carolina, at  Raleigh.

Argued: September 23, 2008

Decided: March 4, 2009

 Before MOTZ and AGEE, Circuit Judges, and James C. CACHERIS, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

 Affirmed in part, reversed in part, vacated in part, and remanded by published opinion. Senior Judge Cacheris wrote the opinion, in which Judge Motz and Judge Agee joined.

 This case reaches the Court after a full trial on the merits in the Eastern District of North Carolina. James Dotson ("Dotson") brought suit against his employer, Pfizer, Inc. ("Pfizer"), for violations of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. (the "FMLA"). The jury awarded Dotson $1,876.00 on his FMLA interference claim and $331,429.25 on his retaliation claim. The district court awarded Dotson $333,305.25 in statutory liquidated damages, $375,000.00 in attorneys’ fees, and $14,264.88 in costs. Each party appealed different rulings of the district court. Finding error with the district court’s decision to deny pre-judgment interest, we affirm in part, reverse in part, vacate in part, and remand.

 Pfizer terminated Dotson shortly after he and his wife returned from Russia

with their newly-adopted child. Prior to his termination, Dotson had worked at Pfizer for approximately fifteen years. He began his career there in 1988 at an entry-level sales position. In 1991 he was promoted to District Manager; seven years later he became a Regional Manager responsible for more than 100 sales representatives. . . .

 . . . A jury trial began in May 2006 and lasted eight days. The jury found that Pfizer interfered with Dotson’s rights to FMLA leave and that it discharged Dotson in retaliation for his exercise of those rights. It awarded him $1,876 on his claim of interference and $331,429.25 on his retaliation claim. Pfizer filed a Motion for Judgment as a Matter of Law ("JMOL") and an alternative Motion for a New Trial in June 2006. After the trial, Dotson filed a Proposed Findings of Fact and Conclusions of Law Regarding Front Pay and a Motion for Liquidated Damages, Attorneys’ Fees, and Costs. The Court denied Pfizer’s JMOL motion and awarded Dotson $375,000 in liquidated damages, as well as attorneys’ fees and costs. It denied Dotson’s motion for front pay and prejudgment interest. On appeal, Pfizer challenges the court’s denial of its JMOL motion, the award of liquidated damages, and the amount of attorneys’ fees awarded. Dotson appeals the court’s denial of pre-judgment interest and front pay, and contends that the award of attorneys’ fees was inadequate.

 [Employer on notice of FMLA claims]

 . . . Case law and federal regulations make it clear, however, that employees do not need to invoke the FMLA in order to benefit from its protections. The regulations do not require the employee to "expressly assert rights under the FMLA or even mention the FMLA"; instead, the employee "may only state that leave is needed for an expected birth or adoption, for example." 29 C.F.R. § 825.302(c). After the employee makes such a statement, the responsibility falls on the employer to inquire further about whether the employee is seeking FMLA leave. Id. "In providing notice, the employee need not use any magic words." Sarnowski, 510 F.3d at 402.

 There is no question that Dotson gave Pfizert adequate notice of his need for leave during the adoption process. After he provided this information, the burden shifted to Pfizer to determine whether he was requesting FMLA leave. Pfizer has not shown that it made any inquiry into whether his adoption-related leave should have been classified as protected under the FMLA. Pfizer’s legal argument would allow it to use its own failure to determine whether leave should be designated as FMLA-protected to block liability for retaliation. We decline to allow an employer to take advantage of its own lapse in such a way. . . .

 [After-Acquired Evidence issue]

 An after-acquired evidence defense limits an employer’s liability when the employer discovers evidence of "wrongdoing . . . of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge." McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 362-63 (1995). In evaluating an after-acquired defense, a court "must look to the employer’s actual employment practices and not merely the standards articulated in its employment manuals." Sellers v. Mineta, 358 F.3d 1058, 1064 (8th Cir. 2004) (citing O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 759 (9th Cir. 1996)).

 Dotson argues that the district court should have rejected Pfizer’s after-acquired evidence defense because the evidence "acquired" was in Pfizer’s possession before his termination and, in any event, Dotson’s alleged conduct would not normally have warranted discharge. He emphasizes a note from Kennedy to McElerney pointing out a discrepancy in the timing of Dotson’s starter authorizations. Dotson contends that this note shows that Pfizer was aware of the starter problem, allegedly uncovered during the discovery process, before it fired Dotson.

 What was discovered during Dotson’s deposition, however, was that he had misled Batura, the starter compliance official, by telling him that Dr. Foster had signed a starter form prior to Dotson’s trip to Russia. This conversation, Pfizer claims, led it to refrain from contacting the FDA to report a problem with its handling of starters. Dotson’s argument that the evidence is not truly "after-acquired" is specious. His supervisors, who may have known that something was amiss with Dotson’s starter forms, directed him to call Pfizer’s compliance department. Pfizer put on evidence showing that Dotson misled a compliance official and that the extent of the purported deception did not become clear until after litigation began and Pfizer obtained a new explanation from Dotson, which it later discovered was also questionable. The evidence was "after-acquired": Dotson’s misleading of Batura was revealed only after Dotson filed suit.

 The second question, which we decide using the same standard as the trial judge, is whether a reasonable jury could have found for Pfizer on its claim that it would have terminated Dotson for his allegedly misleading conversation with Batura. Pfizer argues that it would have terminated an employee for misrepresenting material facts to a company official investigating starter misuse. At trial, Pfizer introduced the testimony of Dawn Rogers, the  Human Resources Vice President for Pfizer, who stated that Dotson would have been terminated based on what Pfizer discovered after the commencement of litigation. We conclude that this testimony would allow a reasonable jury to agree with Pfizer on this element of its after-acquired evidence defense, and so the district court correctly denied Dotson’s motion for judgment as a matter of law.

 Because we reject Dotson’s assertion that the district court should have granted his motion for judgment as a matter of law on Pfizer’s after-acquired evidence defense, it is clear that the court did not abuse its discretion in allowing Pfizer to amend its Answer or in denying Dotson’s motion in limine to exclude the evidence from trial. . . .

 [Front Pay]

 Dotson appeals the district court’s denial of his request for front pay. He asked for approximately $8 million in front pay, including lost future earnings and benefits stretching fifteen years into the future — until, as Dotson explained, a planned early retirement at age 58.

 Under the FMLA, a wronged employee is entitled to "such equitable relief as may be appropriate, including employment, reinstatement, and promotion," along with damages. 29 U.S.C. § 2617(a)(1)(B). The statute does not identify front pay as an equitable remedy, but we have recognized it as a proper form of relief that is "an alternative and complement to reinstatement." Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 307 (4th Cir. 1998). Determinations of front pay are made by the trial court sitting in equity.  Id.at 307 (citing Duke v. Uniroyal, 928 F.2d 1413, 1424 (4th Cir. 1991)). A trial court must "temper" the use of front pay by recognizing "the potential for windfall" to the plaintiff. Duke, 928 F.2d at 1424. We review the denial of an award of front pay for abuse of discretion. See Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 504 (4th Cir. 2001).

 The district court believed that front pay from the date of termination until Dotson’s planned retirement was simply too speculative to award. The court cited Peyton v. Dimario, a Title VII case which held that front pay for 26 years was unduly speculative; the Peyton Court also noted that the balance of authority suggested that courts disfavored lifetime front pay awards for plaintiffs in their forties. Peyton v. Dimario, 287 F.3d 1121, 1129-30 (D.C. Cir. 2002). The district court stated that it would have been inclined to award front pay for a more limited duration — such as the approximately three years between Dotson’s termination and the point at which he secured a similar though lesser-paying job at GlaxoSmithKline — had the jury’s award plus liquidated damages not made Dotson whole by covering his projected losses over those three years.

 Dotson objects to the district court’s characterization of what he claimed would be uninterrupted future employment with Pfizer as speculative. He also disputes its determination that liquidated damages made him whole for his future losses. Dotson suggests that, since he has not found a position as remunerative as the one he held with Pfizer, he will not be "made whole" unless he receives compensation to make up the difference, starting at the date of his termination and looking more than a decade into the future.

 Under these circumstances, we do not believe the district court abused its discretion in denying Dotson front pay. At the time the court ruled on Dotson’s request for front pay, Dotson had secured full-time employment in the pharmaceutical services industry, making approximately $65,000 less than the approximately $232,000 in salary and benefits he made prior to his termination. Thus, he had secured comparable, if not precisely equivalent, work at another major drug company. . . .

 [Pre-judgment Interest]

 We reverse the district court’s decision because prejudgment interest on FMLA damages is mandatory rather than discretionary. Pre-judgment interest also does not constitute the kind of "additional" relief that requires briefing — unlike other FMLA remedies like front pay and liquidated damages, which the district court has the discretion to reduce or deny outright. Pre-judgment interest automatically becomes part of the damages award under the plain terms of the statute. 29 U.S.C. § 2617(a)(1)(A)(i)-(ii). Given the statutory command to include pre-judgment interest as part of FMLA damages, the district court should have awarded pre-judgment interest regardless of whether Dotson reiterated his pre-trial requests for it in the post-trial motion. In this case — where prejudgment interest was requested in several documents filed before trial — Dotson was entitled to the interest, which should have been awarded at the time the district court awarded him liquidated damages and other costs and fees.

 [Liquidated Damages]

 The FMLA entitles a wronged employee to an additional award of liquidated damages equal to the sum of the amount awarded for damages and the interest on that amount. 29 U.S.C. § 2617(a)(1)(A)(iii). Normally, liquidated damages are awarded automatically under the statute. If, however, the employer "proves to the satisfaction of the court" that the violation of § 2615 "was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation," the court, in its discretion, may choose not to award liquidated damages. Id.

The employer has a "plain and substantial burden" to persuade the court that its failure was in good faith and that it would be unfair to impose liquidated damages. Mayhew v. Wells, 125 F.3d 216, 220 (4th Cir. 1997) (quotation omitted) (interpreting liquidated damages provision of the Fair Labor Standards Act). The employer must show objective good faith. See id. (citing Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, 661-62 (4th Cir. 1969)). Pfizer’s decision-makers, the company contends, did not know that Dotson had inquired about FMLA leave, and so the district court punished Pfizer for not knowing the statutory implications of Dotson’s adoption-related leave. This argument ignores Pfizer’s statutory burden of seeking out further information and complying with the FMLA when an employee indicates that he or she is seeking leave for a protected reason. See 29 C.F.R. § 825.303(b). Pfizer had affirmative obligations it did not meet. The district court was well within its discretion to find that Pfizer did not make a showing of good faith.

 Our decision that Dotson is entitled to pre-judgment interest, however, requires that we vacate the award of liquidated damages and return it to the district court for recalculation after the addition of pre-judgment interest. See supra at subsection III.B; 29 U.S.C. § 2617(a)(1)(A)(ii)-(iii) (prescribing liquidated damages equal to the sum of damages and prejudgment interest).

 [Attorney’s Fees]

 Both parties contest the attorneys’ fees awarded to Dotson’s counsel. Pfizer claims that the amount of attorneys’ fees awarded — $375,000 — was excessive considering that Dotson recovered $666,610.50 on his claims.

 . . . Pfizer claims that, because it prevailed on its after-acquired evidence defense, Dotson won only a limited victory. Thus, the Court should reduce the attorneys’ fees awarded, because "the most critical factor is the degree of success obtained." Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). "Even when an award of attorneys’ fees is mandatory, the district court may decrease the amount of fees that might otherwise be awarded in order to account for the plaintiff’s limited success." McDonnell, 134 F.3d at 641. Here, the district court reduced the amount claimed by Dotson’s attorneys from $550,000 to $375,000. Even if Pfizer prevailed, or partially prevailed, on the after-acquired evidence defense it raised, we do not find the district court’s attorneys’ fee award "clearly wrong." Martin, 48 F.3d at 1359. The court properly took into account Dotson’s limited recovery and reduced the fee award accordingly.

 The district court limited Dotson’s attorneys’ fees because he did not obtain all the relief requested in his complaint. Dotson claims he is entitled to higher attorneys’ fees, since the district court wrongfully denied Dotson the full relief he requested. Because we hold that the district court did not abuse its discretion in denying front pay, it is clear that the court also did not err by limiting Dotson’s fees based on his failure to recover front pay.

. . . To recapitulate, we hold that Dotson is entitled to prejudgment interest under 29 U.S.C. § 2617(a)(1)(A)(i)-(ii). For that reason, the attorneys’ fees and liquidated damages must be recalculated after pre-judgment interest is added to Dotson’s award. We affirm the district court’s judgment in all other respects.

Virginia SCT, arbitration of employment disputes

In an employment-related decision, the Supreme Court of Virginia held last week that while the Virginia arbitration statute does allow for appeals of orders denying motions to compel arbitration, the statute does not comparably provide for an appeal of an order granting a motion to compel arbitration. In other words, if one party (here, the employer) successfully moves to compel arbitration, the other party has to go forward with the arbitration and then if the outcome is adverse, petition for review by the circuit court after the completion of the arbitration.

Some excerpts follow:

http://www.courts.state.va.us/opinions/opnscvwp/1080217.pdf

Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and Millette, JJ., and Carrico, S.J.

CRISELL SEGUIN v. NORTHROP GRUMMAN SYSTEMS CORPORATION, ET AL.

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.

Record No. 080217

February 27, 2009

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

This appeal arises from the circuit court’s order compelling arbitration pursuant to the provisions of the Virginia Uniform Arbitration Act, Code § 8.01-581.01 et seq. The dispositive issue in this case is whether the Act provides a right to appeal from an order that compels arbitration.

BACKGROUND

During the course of Crisell Seguin’s employment, Northrop Grumman Systems Corporation sent unilateral e-mails and memoranda advising its employees that continued employment signified agreement to the new arbitration requirements of the company’s Dispute Resolution Process. After receiving these emails and memoranda, Seguin continued in her employment at Northrop Grumman, but never signed an arbitration agreement. Seguin subsequently filed a complaint in the Circuit Court of Fairfax County alleging that Northrop Grumman, and her supervisor, John C. Gage, (collectively, "Northrop Grumman") had defamed her by making false statements in her work performance evaluation. Northrop Grumman filed a motion to compel arbitration, contending that Seguin’s claim was covered by the company’s dispute resolution procedure requiring binding arbitration.

. . . Pursuant to Code § 8.01-581.016:

An appeal may be taken from: (1) An order denying an application to compel arbitration . . . (2) An order granting an application to stay arbitration . . . (3) An order confirming or denying an award; (4) An order modifying or correcting an award; (5) An order vacating an award without directing a rehearing; or (6) A judgment or decree entered pursuant to the provisions of this article.

Code § 8.01-581.016 does not grant a right to appeal an order granting an application to compel arbitration. The language of the statute is clear and unambiguous.

. . . Seguin’s reliance on Amchem to support her contention that there is a right to appeal from an order that compels arbitration is misplaced. That case involved an appeal from a circuit court’s order denying an application to compel arbitration. Under Code § 8.01-581.016, the General Assembly expressly created a right to appeal from such an order. The Court’s statement in Amchem that "Code § 8.01-581.016 confers upon this Court jurisdiction to review a circuit court’s order that denies or compels arbitration" is dictum in so far as the statement includes the phrase "or compels." Id. at 96, 563 S.E.2d at 742-43. In no way does the Court’s prior decision in Amchem circumvent the lack of an express right under Code § 8.01-581.016 to an appeal from an order compelling arbitration.

[Alan R. Kabat, Bernabei & Wachtel, PLLC]

Supreme Court, Title VII retaliation decision

The Supreme Court today held that Title VII’s opposition clause extends to those who protest discrimination during an employer’s internal investigation of another employee’s complaint, thereby reversing the Sixth Circuit’s ruling to the contrary. Justice Alito’s separate concurrence would not extend oppositional activity beyond that relating to internal investigations.

Some excerpts follow:

http://www.supremecourtus.gov/opinions/08pdf/06-1595.pdf

CRAWFORD v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 06–1595. Argued October 8, 2008—Decided January 26, 2009

…

211 Fed. Appx. 373, reversed and remanded.

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, GINSBURG, and BREYER, JJ., joined. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined.

JUSTICE SOUTER delivered the opinion of the Court.

Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. (2000 ed. and Supp.V), forbids retaliation by employers against employees who report workplace race or gender discrimination. The question here is whether this protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. We hold that it does.

The Court of Appeals affirmed on the same grounds, holding that the opposition clause "‘demands active, consistent "opposing" activities to warrant . . . protection against retaliation,’" 211 Fed. Appx., at 376 (quoting Bell v. Safety Grooving & Grinding, LP, 107 Fed. Appx. 607,610 (CA6 2004)), whereas Crawford did "not claim to have instigated or initiated any complaint prior to her participation in the investigation, nor did she take any further action following the investigation and prior to her firing." 211 Fed. Appx., at 376. Again like the trial judge, the Court of Appeals understood that Crawford could show no violation of the participation clause because her "‘employer’s internal investigation’" was not conducted "‘pursuant to a pending EEOC charge.’ " Ibid. (quoting Abbott, supra, at 543).

Because the Sixth Circuit’s decision conflicts with those of other Circuits, particularly as to the opposition clause, see, e.g., McDonnell v. Cisneros, 84 F. 3d 256, 262 (CA71996), we granted Crawford’s petition for certiorari. 552 U. S. ___ (2008). We now reverse and remand for further proceedings.

II.     The opposition clause makes it "unlawful . . . for an employer to discriminate against any . . . employe[e] . . . because he has opposed any practice made . . . unlawful. . . by this subchapter." §2000e–3(a). The term "oppose," being left undefined by the statute, carries its ordinary meaning, Perrin v. United States, 444 U. S. 37, 42 (1979): "to resist or antagonize . . . ; to contend against; to confront; resist; withstand," Webster’s New International Dictionary 1710 (2d ed. 1958). Although these actions entail varying expenditures of energy, "RESIST frequently implies more active striving than OPPOSE." Ibid.; see also Random House Dictionary of the English Language 1359 (2d ed. 1987) (defining "oppose" as "to be hostile or adverse to, as in opinion").

The statement Crawford says she gave to Frazier is thus covered by the opposition clause, as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense. Crawford’s description of the louche goings-on would certainly qualify in the minds of reasonable jurors as "resist[ant]" or "antagoni[stic]" to Hughes’s treatment, if for no other reason than the point argued by the Government and explained by an EEOC guideline: "When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication" virtually always "constitutes the employee’s opposition to the activity." Brief for United States as Amicus Curiae 9 (citing 2 EEOC Compliance Manual §§8–II–B(1), (2), p. 614:0003 (Mar. 2003)); see also Federal Express Corp. v. Holowecki, 552 U. S. ___, ___ (2008) (slip op., at 8) (explaining that EEOC compliance manuals "reflect ‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance’" (quoting Bragdon v. Abbott, 524 U. S. 624, 642 (1998))). It is true that one can imagine exceptions, like an employee’s description of a supervisor’s racist joke as hilarious, but these will be eccentric cases, and this is not one of them.

. . . "Oppose" goes beyond "active, consistent" behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. Countless people were known to "oppose" slavery before Emancipation, or are said to "oppose" capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it "opposition" if an employee took a stand against an employer’s discriminatory practices not by "instigating" action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons. Cf. McDonnell, supra, at 262 (finding employee covered by Title VII of the Civil Rights Act of 1964 where his employer retaliated against him for failing to prevent his subordinate from filing an EEOC charge). There is, then, 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 the statute requires a freakish rule 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.

. . . The possibility that an employer might someday want to fire someone who might charge discrimination traceable to an internal investigation does not strike us as likely to diminish the attraction of an Ellerth-Faragher affirmative defense.

That aside, we find it hard to see why the Sixth Circuit’s rule would not itself largely undermine the Ellerth-Faragher scheme, along with the statute’s "‘primary objective’" of "avoid[ing] harm" to employees. Faragher, supra, at 806 (quoting Albemarle Paper Co. v. Moody, 422 U. S. 405, 417 (1975)). If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others. This is no imaginary horrible given the documented indications that "[f]ear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination." Brake, Retaliation, 90 Minn. L. Rev. 18, 20 (2005); see also id., at 37, and n. 58 (compiling studies). The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it "exercised reasonable care to prevent and correct [any discrimination] promptly" but "the plaintiff employee unreasonably failed to take advantage of . . .preventive or corrective opportunities provided by the employer." Ellerth, supra, at 765. Nothing in the statute’s text or our precedent supports this catch-22.

Because Crawford’s conduct is covered by the opposition clause, we do not reach her argument that the Sixth Circuit misread the participation clause as well. But that does not mean the end of this case, for Metro’s motion for summary judgment raised several defenses to the retaliation charge besides the scope of the two clauses; the District Court never reached these others owing to its ruling on the elements of retaliation, and they remain open on remand.

III.     The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

JUSTICE ALITO, with whom JUSTICE THOMAS joins, concurring in the judgment.

The question in this case is whether Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. (2000 ed. and Supp. V), prohibits retaliation against an employee who testifies in an internal investigation of alleged sexual harassment. I agree with the Court that the "opposition clause" of §2000e–3(a)(2000 ed.) prohibits retaliation for such conduct. I also agree with the Court’s primary reasoning, which is based on "the point argued by the Government and explained by an EEOC guideline: ‘When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication’ virtually always ‘constitutes the employee’s opposition to the activity.’" Ante, at 4. I write separately to emphasize my understanding that the Court’s holding does not and should not extend beyond employees who testify in internal investigations or engage in analogous purposive conduct. . . .

[Alan R. Kabat, Bernabei & Wachtel, PLLC]

Supreme Court, cert grant on discovery issue

If the district court orders a party to turn over attorney-client privileged documents in discovery because the party has waived the privilege by putting its attorney’s communications at stake as its defense, or denies a party’s motion for return of privileged documents that were inadvertently produced, can the party immediately appeal that discovery-related order, or must the party wait for a final judgment before taking an appeal?

The Eleventh Circuit held that there was no right to an immediate appeal. Carpenter v. Mohawk Industries, 541 F.3d 1048 (11th Cir. 2008) (per curiam). This concerned a former employee of Mohawk, who alleged that he was terminated after refusing to go along with the employer’s assertions in another lawsuit against Mohawk, alleging RICO claims arising from the hiring of illegal immigrants. Carpenter then brought his own wrongful termination lawsuit against Mohawk, bring Section 1985(2) conspiracy claims and Georgia state-law claims.

Carpenter then sought discovery relating to the decision to terminate him, including the communications relating to the employer’s attorney’s communications in terminating him. The employer objected on the grounds of privilege, but the district court found that since the employer asserted as a defense in the other lawsuit that its conduct was legally proper, that it had waived the privilege in this lawsuit.

The Eleventh Circuit then found that there was no right to an immediate appeal or a mandamus. The Eleventh Circuit did recognize a circuit split, with the D.C. and Ninth Circuits allowing the right to an immediate appeal, with several other circuits reaching the opposite result. The Supreme Court granted certiorari to the employer’s petition.

Some excerpts from the Eleventh Circuit’s opinion follow, to indicate the underlying issues:

Plaintiff/Appellee Norman Carpenter ( Appellee ) initiated this action on March 15, 2007 in the United States District Court for the Northern District of Georgia against Defendant/Appellant Mohawk Industries, Inc. ( Mohawk or Appellant ), and also against various employees of Mohawk Industries, Inc., alleging that he was terminated in violation of 42 U.S.C. § 1985(2) and various Georgia laws. Specifically, Appellee contends in his complaint that he reported to Mohawk's human resources department that several temporary employees, hired by Mohawk through a temporary employment agency, were illegal aliens. After making his report, Appellee was required to meet with attorney Juan P. Morillo, who represents Mohawk in a separate lawsuit, Williams v. Mohawk Industries, Inc., Civil Action File No. 4:04-cv-0003-HLM.^FN1

FN1.

In the Williams lawsuit, a group of current and former Mohawk employees filed a class action lawsuit against Mohawk in the District Court for the Northern District of Georgia, alleging that Mohawk conspired to place illegal aliens to work, in violation of federal and state RICO laws.

Appellee alleges that the meeting between him and attorney Juan P. Morillo was designed to coerce him into recanting his report, which Appellant knew would be damaging to its defense in the Williams action. Appellee refused to recant his report, and he was terminated the day after the meeting. Appellant's stated reason for terminating Appellee was because it had discovered that Appellee was committing immigration crimes by harboring illegal aliens.

. . .

After engaging in some initial discovery exchanges in the instant case, Appellee filed a motion to compel responses to both his interrogatories and document requests, seeking information Appellant contended was protected by the attorney-client privilege. Specifically, Appellee sought information related to his communications with Attorney Juan P. Morillo and information related to Appellant's decision to terminate Appellee. The district court found that the communications at issue were protected by the attorney-client privilege, but it went on to conclude that Appellant had implicitly waived the attorney-client privilege due to the response Appellant filed in the Williams action. The district court stated that:

By making those representations, Defendant Mohawk placed the actions of Attorney Morillo in issue. In fairness, evaluation of those representations will require an examination of otherwise-protected communications between Attorney Morillo and Plaintiff and between Attorney Morillo and Defendant Mohawk's personnel. Consequently, the Court must conclude that Defendant Mohawk has waived the attorney-client privilege with respect to the communications relating to the interview of Plaintiff and the decision to terminate Plaintiff's employment.

The district court then ordered Appellant to respond to Appellee's interrogatories and document production requests, but it stayed that portion of its order if Appellant chose to appeal.

Appellant, believing that it had not waived the attorney-client privilege and not wanting to turn over the information at issue, challenges the district court's order in this appeal. Appellee has moved to dismiss the appeal on the basis that this Court lacks jurisdiction to consider the appeal of a non-final discovery order. Appellant has also filed a petition for a writ of mandamus, seeking to compel the district court judge to vacate the order as it relates to Appellee's motion to compel. We consolidated the appeal, motion to dismiss, and petition for a writ of mandamus and will, therefore, consider them together.

[Alan R. Kabat, Bernabei & Wachtel, PLLC]