Bernabei & Wachtel Blog

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]

Virginia Supreme Court, employment defamation decision

In its second trip to the Supreme Court of Virginia, the plaintiff prevailed in the appeal on her employment-related defamation case. Elaine Bredehoft represented the plaintiff.

A brief procedural recap. The case went to trial (Fairfax County Circuit Court), and the plaintiff received a sizable jury verdict. However, the verdict form did not have separate entries for each of the six alleged defamatory statements, and instead allowed the jury to give one verdict based on some or all of the statements. On the first appeal, the Supreme Court held that some of the statements were not defamatory, but since the verdict form did not break down the verdict separately for each statement, there had to be a remand for a new trial as to the remaining defamatory statements alone. However, on remand Judge Vieregg granted summary judgment for the defendant, finding that the plaintiff’s responses to the requests for admission had somehow conceded that those statements were not false or defamatory. This time, plaintiff appealed to the Supreme Court, which reversed.

What is important about this decision is that it emphasizes that defamatory statements must be considered in the context, and not evaluated in isolation or in a vacuum, as defendants often want to do in defamation cases, including those arising in the employment context.

Some excerpts follow:

http://www.courts.state.va.us/opinions/opnscvwp/1080157.pdf

CYNTHIA HYLAND v. RAYTHEON TECHNICAL SERVICES COMPANY, ET AL.

Record No. 080157

OPINION BY JUSTICE BARBARA MILANO KEENAN

January 16, 2009

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Arthur B. Vieregg, Jr., Judge

In this defamation action, we consider whether the circuit court, upon our remand of the case, erred in granting summary judgment in favor of the defendants after considering isolated factual segments of two allegedly defamatory statements.

In 2003, Cynthia L. Hyland brought several claims against her former employer, Raytheon Technical Services Company (Raytheon) and its president, Bryan J. Even. In the claims involved in this appeal, Hyland asserted that her supervisor, Even, made certain defamatory statements concerning Hyland’s job performance. Raytheon and Even filed grounds of defense asserting, among other things, that Hyland was not entitled to damages because the alleged statements were true. . . .

During the trial, the circuit court denied the motions to strike raised by Raytheon and Even (collectively, Raytheon) and submitted Hyland’s defamation claim to the jury on five allegedly defamatory statements. The jury returned a verdict in favor of Hyland, and the circuit court later entered final judgment awarding Hyland $1,850,000, which included $350,000 in punitive damages.

In Raytheon’s appeal of that judgment (the first appeal), we held that only two of the five statements submitted to the jury were actionable for defamation, and that the remaining three statements were not actionable because they were statements of opinion that could not be proved true or false. Raytheon Tech. Servs. Co. v. Hyland, 273 Va. 292, 641 S.E.2d 84 (2007). We concluded that a new trial was required because the jury instructions permitted a verdict in favor of Hyland on any one of the five statements, and we were unable to determine whether the jury based its award in part or in whole on the non-actionable statements of opinion that it erroneously was permitted to consider. Id. at 306, 641 S.E.2d at 92. . . .

On remand in the circuit court, Raytheon filed a motion for summary judgment, asserting that the two statements that were the subject of our remand were not defamatory because they were true. Raytheon argued that there was no genuine issue of material fact regarding those statements, because Hyland had acknowledged the truth of the statements before the first trial in her response to Raytheon’s request for admission.

Hyland opposed the motion for summary judgment and argued that several portions of the two statements at issue were false and were sufficiently misleading to constitute defamation. She also contended that in remanding the case for a new trial, this Court necessarily had rejected Raytheon’s contention that she had admitted the truth of the statements.

The circuit court granted Raytheon’s motion for summary judgment. In a letter opinion, which was incorporated by reference in the circuit court’s final judgment order, the circuit court held that the two statements were true as a matter of law. . . .

In determining whether a statement is one of fact or opinion, a court may not isolate one portion of the statement at issue from another portion of the statement. . . . Rather, a court must consider the statement as a whole. . . .

The requirement that an allegedly defamatory statement be considered as a whole also is vital to a determination of the truth or falsity of a defamation claim, because defamatory statements may be made by implication, inference, or insinuation. . . . Thus, the factual portions of an allegedly defamatory statement may not be evaluated for truth or falsity in isolation, but must be considered in view of any accompanying opinion and other stated facts.

The circuit court improperly limited its analysis to the separate factual portions of the alleged defamatory statements and excluded the necessary consideration of each statement as a whole, including any implications, inferences, or insinuations that reasonably could be drawn from each statement. In addition, when considering the truth or falsity of the allegedly defamatory statements, the circuit court improperly removed from the statements those portions imparting an opinion.

Unlike the determination whether an allegedly defamatory statement is one of fact or opinion, which presents a legal question to be decided by a trial judge, the determination whether an allegedly defamatory statement is false ordinarily presents a factual question to be resolved by a jury. Thus, once a trial judge has determined that an allegedly defamatory statement is capable of being proved false, the jury’s function is to evaluate the evidence presented and to determine whether the plaintiff has met her burden of proving that the allegedly defamatory statement is false. Only if a plaintiff unequivocally has admitted the truth of an allegedly defamatory statement, including the fair inferences, implications, and insinuations that can be drawn from that statement, may the trial judge award summary judgment to the defendant on the basis that the statement is true. . . .

In the present case, however, Hyland did not admit the truth of the two allegedly defamatory statements. As we observed in our opinion in the first appeal in this case, the stated and implied import of the first statement in Hyland’s job performance evaluation is that Hyland was responsible for the losses of the two contract bids, and that those losses created gaps in the company’s plans and in the business units that she directed. Raytheon Tech. Servs., 273 Va. at 304-05, 641 S.E.2d at 91. Hyland did not concede in her responses to Raytheon’s request for admission that this was true. She also did not concede in those responses that she failed to meet her team’s financial targets by the percentages stated in the second allegedly defamatory statement.

By awarding summary judgment to Raytheon in the absence of such admissions, the circuit court deprived Hyland of the opportunity to present evidence to a jury to establish the falsity of the allegedly defamatory statements. The circuit court’s judgment also denied Hyland the right to have a jury consider each allegedly defamatory statement as a whole. Therefore, we hold that the circuit court erred in awarding Raytheon summary judgment, and that Hyland is entitled to a jury trial on the two allegedly defamatory statements discussed in this opinion.

For these reasons, we will reverse the circuit court’s judgment and remand the case for a jury trial consistent with the principles expressed in this opinion.

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

D.C. Court of Appeals decision, expert witness issues

On January 15, 2009, the D.C. Court of Appeals upheld a $1.65 million jury verdict in favor of the plaintiff, a former UDC faculty member, who proved at trial that while he was attempting to negotiate a settlement of his employment situation with UDC's General Counsel, the UDC Provost (contrary to the General Counsel's recommendation) ordered that the contents of his office and research laboratory be evicted in order to make way for another program. Indeed, the General Counsel had written to plaintiff's attorney to advise him that the eviction would be stayed while they were doing the negotiations, upon which the plaintiff left town to attend a scientific meeting. Instead, during his absence, his office contents were trashed in the "eviction."

The plaintiff presented his own testimony, and that of two professional colleagues as expert witness, as to the valuation of the destroyed equipment, his detailed lecture notes, unpublished manuscripts and research in progress.

The Court of Appeals squarely rejected all of UDC's challenges to the sufficiency of the evidence, including the expert witnesses, and to the jury instructions.

This decision is useful in that it allows professional colleagues of a plaintiff to serve as expert witnesses in their common area of expertise, so that a plaintiff can put a value on the economic losses caused by defendant's interference with his future earning opportunities.

Some excerpts follow:

http://www.dcappeals.gov/dccourts/appeals/pdf/05-CV-1165.PDF

TRUSTEES OF THE UNIVERSITY OF THE DISTRICT OF COLUMBIA, APPELLANTS, v.

JAFAR VOSSOUGHI, APPELLEE.

Appeal from the Superior Court of the District of Columbia (No. CAB-3280-03)

(Hon. Geoffrey M. Alprin, Trial Judge)

(Argued May 23, 2007 Decided January 15, 2009)

Mary T. Connelly, Assistant Attorney General, with whom Robert J. Spagnoletti, Attorney General for the District of Columbia at the time the brief was filed, Linda Singer, Attorney General for the District of Columbia at the time, Todd S. Kim, Solicitor General, and Edward E. Schwab, Deputy Solicitor General at the time, were on the briefs, for appellants.

Jonathan C. Dailey, with whom Robert C. Kostecka was on the brief, for appellee.

Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and FARRELL, Associate Judge, Retired.*

GLICKMAN, Associate Judge:

Dr. Jafar Vossoughi sued the University of the District of Columbia ("UDC") for destroying his personal property - unique scientific instruments and other equipment, voluminous teaching materials, unpublished research data, and other items - when it cleaned out his biomechanical research laboratory without his knowledge in order to devote the space to other uses. The case was tried to a jury, which found UDC liable to Dr. Vossoughi for trespass to chattel, conversion, and negligence, and awarded him compensatory damages in the amount of $1,650,000. The trial court entered judgment on that verdict and denied UDC's post-judgment motion for partial judgment as a matter of law, a new trial, and/or a remittitur.

On appeal, UDC takes no issue with the jury's finding of liability and seeks a new trial only on the question of Dr. Vossoughi's damages. To prove the value of his lost property at trial, Dr. Vossoughi relied on his own testimony and that of two expert witnesses. UDC, which introduced no contrary valuation evidence, challenges both the admissibility of the experts' testimony and the overall sufficiency of Dr. Vossoughi's proof of value. In addition, UDC claims that the trial court improperly refused to instruct the jury on mitigation of damages and erroneously allowed the jury to award damages to Dr. Vossoughi for property that belonged not to him, but to UDC.

UDC's contentions do not persuade us to grant it relief. We conclude that the valuation testimony of Dr. Vossoughi and his two expert witnesses was admissible and sufficient to support the jury's award. We further conclude that UDC was not entitled to an instruction on mitigation. Finally, we reject UDC's charge that the trial court erroneously allowed the jury to compensate Dr. Vossoughi for the loss of property he did not own.

Dr. Vossoughi is an expert in applied mechanics and experimental biomechanics - an area of study that encompasses the testing of mechanical theories and the creation and development of novel experimental devices for biomechanical research. Over the course of his career, Dr. Vossoughi has written or edited 17 books and over 150 other publications. According to the undisputed testimony of two fellow scientists, Dr. Vossoughi has made significant discoveries and contributions and is well-known and respected in his academic field. . . .

. . . In 1999, Dr. Vossoughi filed a lawsuit against UDC for breach of contract, in which he claimed that university officials had reneged on a promise to give him tenure. In the summer of 1999, while settlement negotiations were taking place, acting UDC provost Beverly Anderson directed Dr. Vossoughi in writing to vacate his laboratory, because the space was needed for other university programs. In early September, however, UDC counsel Robin Alexander advised Dr. Vossoughi's attorney that Dr. Vossoughi's eviction had been stayed in view of the on-going efforts to resolve the employment litigation. Provost Anderson testified at trial that Alexander had asked her not to evict Dr. Vossoughi. Nonetheless, in November 1999, Provost Anderson wrote another letter demanding that Dr. Vossoughi vacate his laboratory.

In January 2000, unbeknownst to Dr. Vossoughi, a decision was made to clear out the contents of his laboratory to make room for a practical nursing program. . . .

On February 11, 2000, Dr. Vossoughi returned to his laboratory, found the door open, and discovered that "[m]ost of the lab was empty except some big pieces there." He testified at trial that he saw "a lot of [his] stuff in the trash dumpsters" around the building, but approximately "80, 90 percent of [his] things were gone." Dr. Vossoughi immediately telephoned his attorney, who instructed him to take photographs to document the condition of his laboratory. The photographs, which were in evidence at trial, show a laboratory stripped of virtually all its contents, surrounded by piles of trash and stacked boxes. Dr. Vossoughi testified that a trash bin in one photograph contained "mostly [his] experiments, which were broken, dismantled." When asked at trial whether he did anything to try to retrieve property from the trash, Dr. Vossoughi responded that "if 80, 90 percent of your belongings are gone, you don't care at that time about 10 percent trash left over." Later, Dr. Vossoughi did seek to retrieve or inventory his stored belongings, but UDC initially did not permit him to do so. Eventually, Dr. Vossoughi was allowed to inventory the property and take what was his. He testified at trial that he did not include any recovered property in his claim for damages. . . .

Dr. Vossoughi sought compensation from UDC for the destruction of four main types of personal property: (1) course materials; (2) unpublished research data; (3) scientific instruments that he had fabricated; and (4) equipment and other items that he had purchased from commercial vendors. The value of this property was a principal, though not the sole, component of Dr. Vossoughi's damages claim. Because most of the lost property was unique or had no fair market value, Dr. Vossoughi asked the jury to award him its replacement value. In order to establish the value of his lost property, Dr. Vossoughi relied on his own testimony and, with respect to all but the commercially available items, the testimony of two expert witnesses, Dr. Ted Conway and Dr. Subrata Saha. Dr. Conway, a biomedical engineering researcher at the University of Central Florida, was "on loan" at the time of trial to the National Science Foundation, where he was in charge of its funding program for research and disabilities education. In connection with that assignment, Dr. Conway had earned a "master's certificate" in project management at George Washington University. Dr. Saha was a professor at Alfred University, where he taught courses in bioengineering, biomechanics and related fields, as well as a course in engineering economic analysis. Both Dr. Conway and Dr. Saha had collaborated with Dr. Vossoughi on research projects, and they were generally familiar with his work, the courses he taught, and his publications and scientific reputation. . . .

III. Admissibility of the Experts' Valuation Testimony

UDC contends that the trial court erred in permitting Dr. Conway and Dr. Saha to testify as to the value of Dr. Vossoughi's course materials, unpublished research, and fabricated devices. UDC asserts that the witnesses lacked the qualifications necessary to testify as experts on valuation and "merely rubber-stamped Vossoughi's speculative and erroneous valuations without providing any reasonable basis for their opinions." We disagree.

. . . "The trial court has broad discretion in determining whether to admit expert testimony, and its ruling admitting or excluding such evidence will not be disturbed unless manifestly erroneous." Similarly, "[w]hether a witness possesses the requisite qualifications to express an opinion on a particular subject is within the trial court's discretion, and its decision in that regard will only be reversed for an abuse." [quoting Jung v. George Washington Univ., 875 A.2d 95, 104-05 (D.C. 2005)].

It is undisputed that the valuation of Dr. Vossoughi's specialized property was a proper subject for expert opinion testimony; it is certainly a subject "distinctly related" to Dr. Vossoughi's occupation and "beyond the ken" of the average lay juror. As to the experts' qualifications, the issue is not whether Dr. Conway and Dr. Saha had formal training in property appraisal, market valuations or financial analysis, nor whether they previously had been qualified as experts on the valuation of property. The witnesses had extensive experience as experimenters, researchers and academics in Dr. Vossoughi's field, and they had considerable familiarity with Dr. Vossoughi's laboratory, research and achievements. Each witness had worked with Dr. Vossoughi, fabricated similar equipment, created and taught similar courses, performed similar research, and funded or budgeted similar projects. The trial court readily could find that the witnesses' knowledge and experience prepared them to offer informed opinions regarding the time and resources necessary to replicate Dr. Vossoughi's lost course materials, unpublished research, and specially fabricated devices. . . .

VII. Conclusion

This was an unusual case. The jury reasonably could find that UDC tortiously destroyed much of Dr. Vossoughi's life's work - intellectual property created and accumulated over decades - and ruined his professional career. While Dr. Vossoughi's lost course materials, unpublished research, and fabricated devices were difficult to value, the evidence allowed the jury to make a fair estimate of their worth. The jury's award may seem high to some (and clearly it does to UDC), but it is supported by admissible evidence and untainted by legal error. We have no grounds to overturn the verdict. The judgment of the trial court is hereby affirmed.

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

Fourth Circuit, retaliation and scope of the EEOC charge

 

The Fourth Circuit addressed the perennial question of whether retaliation claims are properly exhausted at the EEOC charge stage, when the plaintiff initially filed a retaliation charge which was exhausted, and then was terminated after the exhaustion period, but did not file a new charge (or amend her prior charge). The court held that it was reversible error to dismiss the Title VII retaliation claims based on the termination for failure to exhaust, since the termination was a continuation of the retaliation that the plaintiff alleged in her EEOC charge. In other words, there was no need to file a new charge, or amend the previous charge. It is important to emphasize that the EEOC charge described the retaliation as ongoing, not merely as past events, as complaining about ongoing discrimination will allow subsequent events to be encompassed by the EEOC charge.

This case has a particularly convoluted procedural history that defies simplification (and the Fourth Circuit upheld the dismissal of the age, race, and sex discrimination claims); only the relevant excerpt on the exhaustion issue is set forth below.

http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/071680.P.pdf  

Jones v. Calvert Group, Ltd., No. 07-1680 (4th Cir. Jan. 5, 2009)

Appeal from the United States District Court for the District of Maryland, at Greenbelt.

Deborah K. Chasanow, District Judge.

(8:06-cv-02892-DKC)

Argued: October 30, 2008

Decided: January 5, 2009

Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Vacated in part and reversed and remanded in part by published opinion. Judge Traxler wrote the opinion, in which Judge Shedd and Senior Judge Hamilton joined.

COUNSEL

Theodore Scot Allison, Washington, D.C., for Appellant.

Henry Adam Platt, SAUL EWING, L.L.P., Washington, D.C., for Appellee.

TRAXLER, Circuit Judge:

Linda Jones appeals a district court order that, as is relevant here, granted summary judgment against her on her claims that Calvert Group, Ltd. terminated her in retaliation for filing an Equal Employment Opportunity Commission ("EEOC") charge and because of her age, sex, and race. We vacate the judgment on the merits on each of these claims. Regarding the age, sex, and race claims, we remand for dismissal of the claims for lack of subject matter jurisdiction because of Jones’s failure to exhaust administrative remedies. With regard to the retaliation claim, we remand for further proceedings. . . .

. . . . Jones next contends that the district court erred in ruling that she failed to exhaust her administrative remedies with regard to the retaliation claim. We agree.

Jones specifically argues that the district court’s ruling is at odds with our decision in Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992). . . . On appeal from the district court’s dismissal of the retaliation claim for failure to exhaust administrative remedies, we explained that our circuit had previously left open the question of "whether a plaintiff asserting a Title VII claim of retaliation for filing a previous EEOC charge must exhaust administrative remedies before suing in federal court." See Nealon, 958 F.2d at 590 (citing Aronberg v. Walters, 755 F.2d 1114, 1115 n.1 (4th Cir. 1985)). Noting that "[a]ll other circuits that have considered the issue have determined that a plaintiff may raise the retaliation claim for the first time in federal court," and "find[ing] these rationales persuasive," we "adopt[ed] th[at] position." Id. Justifying our adoption of the rule, we explained that it "is the inevitable corollary of our generally accepted principle that the scope of a Title VII lawsuit may extend to any kind of discrimination like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the Commission." Id. (internal quotation marks omitted). We reasoned that a claim of "retaliation for the filing of an EEOC charge as discrimination" is indeed "like or reasonably related to and growing out of such allegations." Id. (internal quotation marks & alteration omitted). And, we noted that "practical concerns" also supported the rule in that a plaintiff that has already been retaliated against one time for filing an EEOC charge will naturally be reluctant to file a separate charge, possibly bringing about further retaliation. See id.

. . . Calvert contends that the Nealon rule applies only to cases in which the alleged retaliatory act occurred during the pendency of the administrative investigation of the prior EEOC charge. . . .

We are not persuaded, however. Regardless of whether Calvert presents persuasive arguments that the rule we adopted in Nealon should have included a pendency requirement, the language of the opinion is clear that the rule we actually adopted in fact included no such requirement. Nor would such a requirement have fit within our reasoning in that case, in which we explained that a plaintiff should be excused from exhausting claims alleging retaliation for the filing of a previous EEOC charge largely because such a plaintiff would be expected to be gun shy about incurring further retaliation after an additional EEOC charge and because a second conciliation could not be expected to be any more fruitful than the first. See Nealon, 958 F.3d at 590.

. . . Calvert further maintains that even if our precedent at one time allowed a claim to relate back to an EEOC charge even when the claim arose after the charge was no longer pending, that precedent has been overruled, at least as it applies to discrete unlawful employment acts, by National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), and its progeny. . . . Although Calvert asserts that Morgan required Jones to file a new EEOC charge alleging that she was terminated in retaliation for her first charge, we do not read Morgan that broadly. Morgan addresses only the issue of when the limitations clock for filing an EEOC charge begins ticking with regard to discrete unlawful employment practices. In this respect, it concerns only Congress’s clear preference as expressed in Title VII for "prompt processing of all charges of employment discrimination." Morgan, 536 U.S. at 109. It does not purport to address the extent to which an EEOC charge satisfies exhaustion requirements for claims of related, post-charge events. See Wedow v. City of Kansas City, Mo., 442 F.3d 661, 673-75 (8th Cir. 2006). But see Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir. 2003) (holding that after Morgan claims of discrete employment actions are not exhausted by virtue of earlier EEOC charge even when the claim is reasonably related to the EEOC charge). Nealon therefore remains binding precedent.

. . . The critical question therefore is whether Jones’s retaliation claim relates back to the charge that is properly before us, the second charge. We conclude that it does. Jones’s second charge alleged a pattern of conduct by her employer in retaliation for her filing the first charge that included denying her mentoring opportunities, unduly scrutinizing her performance, and giving her a negative performance review. The charge also indicated that the retaliatory behavior was ongoing. See J.A. 18 ("I am being forced to work in a hostile environment and subjected to differential treatment in retaliation for filing [the earlier EEOC charge]." (emphasis added)). Particularly in light of the indication in the second charge that Calvert’s retaliatory conduct was continuing, we conclude that the alleged retaliatory termination was merely the predictable culmination of Calvert’s alleged retaliatory conduct, and, accordingly, we conclude that the claim of retaliatory termination was reasonably related to the allegations of the second charge. Cf. Smith v. First Union Nat’l Bank, 202 F.3d 234, 248 (4th Cir. 2000) (holding that claim that because plaintiff consulted with counsel regarding alleged harassment, she was forced to work on her alleged harasser’s floor and not offered other positions was reasonably related to EEOC charge that she was chastised and threatened with termination based on the same retaliatory motive); Wedow, 442 F.3d at 673-75 (holding that EEOC charge served to exhaust retaliation claims arising after the charge was filed when charge alleged ongoing retaliatory denial of work opportunities and opportunities for promotion and post-charge claims were based on allegations that plaintiff continued to suffer similar retaliatory denials).

Of course, the nature of the retaliation alleged in the present case is slightly different from the retaliation alleged in Nealon—in Nealon, the plaintiff claimed she suffered retaliation for filing the charge before the court, whereas Jones claims she suffered a continuation of the retaliation she alleged in the charge. Nevertheless, we see no reason why that distinction should make any difference; the "practical concerns" that we cited in Nealon as justifying excusing the plaintiff from filing an additional EEOC charge apply with equal force when the claimed retaliation is a continuation of the treatment alleged in the charge before the court. See Clockedile, 245 F.3d at 5-6. Thus, we hold that the Jones’s retaliation claim related back to her second charge and the district court erred in ruling otherwise. We therefore vacate the judgment against Jones on this claim and remand to the district court for further proceedings.

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

D.C. Court of Appeals, wrongful termination in violation of public policy

On Dec. 31, 2008, the D.C. Court of Appeals issued a decision that addresses an issue of first impression in D.C. – may an employee with an employment contract or otherwise protected through a union CBA from at-will employment nonetheless state a claim for wrongful termination in violation of public policy?  MWELA, through Jonathan Gould, submitted an amicus brief on the employee’s behalf.  Although the D.C. Court of Appeals remands for further determination of whether the union grievance procedure should have been used by two of the three plaintiffs, it appears that the court did adopt plaintiffs’ and MWELA’s reasoning that a CBA is not a per se bar to this common-law claim.

Some excerpts follow:

http://www.dcappeals.gov/dccourts/appeals/pdf/05-CV-778+.PDF  

KATHIE BYRD and LISHA QUARLES, APPELLANTS, v. VOCA CORPORATION OF WASHINGTON, D.C., APPELLEE.

MICHELLE MONROE, APPELLANT, v. VOCA CORPORATION OF WASHINGTON, D.C., APPELLEE.

Appeals from the Superior Court of the District of Columbia

(CA-4412-04)

(CA-713-04)

(Hon. Frederick H. Weisberg, Trial Judge)

(Argued June 22, 2006 Decided December 31, 2008)

Leslie D. Alderman III

, with whom T. Cary Devorsetz and Sundeep Hora were on the brief, for appellants.

Steven Sarfatti

for appellees.

Jonathan L. Gould

filed a brief amicus curiae for the Metropolitan Washington Employment Lawyers Association in support of appellants.

Before FISHER, Associate Judge, and WAGNER and SCHWELB,* Senior Judges.

WAGNER, Senior Judge: Appellants, Kathie Byrd, Lisha Quarles, and Michelle Monroe, sued their former employer, appellee, VOCA Corporation of Washington, D.C., for wrongful termination of employment based on public policy grounds. The trial court granted appellee summary judgment, having concluded that appellants’ remedy for wrongful discharge was preempted by § 301 (a) of the National Labor Relations Act of 1947 (NLRA), 29 U.S.C. § 185 (a) (2001). The trial court also dismissed appellants’ cases on the separate ground of failure to exhaust administrative remedies. Appellants argue that the trial court erred in its rulings because: (1) their causes of action are independent of the applicable collective bargaining agreement, and therefore, not preempted by § 301 (a) of the NLRA; and (2) exhaustion of administrative remedies is not required because their claims involve rights independent of the contractual rights protected by the collective bargaining agreement. We affirm the trial court’s dismissal of appellant Monroe’s claim on preemption grounds. We remand the cases of appellants Byrd and Quarles for further proceedings consistent with this opinion.

Factual and Procedural Background

Appellants were employed by VOCA in separate group homes for developmentally disabled individuals in the District. They were members of Service Employees International Union (the Union) which had a collective bargaining agreement (CBA) with VOCA governing the terms of their employment. Under the terms of the CBA, Union members could be disciplined or terminated only for "just cause" and "commensurate with the offense." The CBA also established a procedure for arbitration of grievances and terminations contested by the Union on an employee’s behalf.

Each of the appellants complained to their supervisors about deficiencies in the conditions of the respective group homes where they worked. In addition, appellants Byrd and Quarles complained to members of the Council of the District of Columbia and officials in the Mayor’s office. Shortly thereafter, appellants were terminated from their employment. The Union initiated arbitration proceedings on appellants’ behalf, but appellants elected not to pursue arbitration. Each of them filed a complaint in the trial court alleging wrongful termination of employment.

The trial court granted VOCA’s motion for summary judgment, holding that the appellants’ claims were "inextricably bound up in the collective bargaining agreement between [their] union and [their] employer and that [the] local law wrongful termination claim is therefore preempted by § 301 (a) of the National Labor Relations Act of 1947, 29 U.S.C. § 185 (a) [NLRA]." . . .

B. Preemption Analysis

Appellants argue that their state law claims are not preempted by § 301 because their wrongful termination causes of action are independent of the collective bargaining agreement. Appellee responds that the pre-emptive effect of § 301 of the NLRA precludes the action. However, preliminarily, appellee argues that appellants have no viable state law claim against which the primacy of national labor laws can be analyzed. Appellee contends that the cause of action that appellants seek to assert, wrongful discharge in violation of public policy, is based upon a narrow exception to the at-will employment doctrine which is not applicable to employees, like appellants, whose job tenure is protected by contract.

. . . As appellee points out, this jurisdiction has never recognized the availability of a cause of action for wrongful discharge in violation of public policy for non-at-will employees. It contends that this court should not expand the doctrine to include employees whose rights are protected by contract and enforceable in grievance and arbitration proceedings. Further, appellee argues that this court has refrained from pronouncing alterations to common law rules until a clear national consensus has developed, which has not occurred here. Appellants argue that a cause of action for wrongful termination in violation of public policy should not be limited to at-will employees. They contend that such a limitation would frustrate the purpose of the "public policy tort."

Some courts have held that a claim for wrongful discharge in violation of public policy is available to non-at-will employees, while others have held the contrary. [collecting cases] . . .

Maryland has recognized a cause of action for abusive discharge in favor of at-will employees as well as those who work under a contract. See Ewing, supra note 9, 537 A.2d at 1175. In Ewing, Maryland’s highest court had to decide whether a "cause of action exists under Maryland law for abusive discharge of an employee whose rights are protected by contract," and whether "the pre-emptive effect of § 301 of the Labor Management Relations Act foreclosed the bringing of the action, or in the alternative, its successful prosecution." Id. at 1174. Just as in this jurisdiction, the Maryland Court of Appeals had recognized previously only the applicability of the tort to "an at will" employee when the motivation for the discharge contravenes some clear mandate of public policy." Id. (quoting Adler v. Am. Standard Corp., 291 Md. 31, 47, 432 A.2d 464, 473 (1981)). With respect to the viability of such a claim for contract workers, the Maryland court held that "[a] cause of action for abusive discharge is available to contractual employees as well as to at will employees." Id. at 1179. The court reasoned that recognition of the tort action for all employees "will foster the State’s interest in deterring particularly reprehensible conduct." Id. at 1175. The court cautioned that the action "is applicable only where the discharge contravenes some clear mandate of public policy." Id. The Maryland court’s reasoning is persuasive. Denying contract workers the public policy wrongful discharge remedy tends to "ignore[ ] the fundamental distinction between tort and contract actions." Smith, supra note 9, 991 P.2d at 1141. The duty giving rise to the tort remedy is not derived from the covenants of contract, but rather from the employer’s obligation to conduct its affairs in conformity with fundamental public policy. See id. (citing Koehrer v. Superior Court, 181 Cal. App.3d 1145, 1165, 226 Cal. Rptr. 820, 825 (1986)) (quoting WILLIAM L. PROSSER, THE LAW OF TORTS 613 (4th ed. 1971)). Recognition of the cause of action will, as the Maryland court observed, "foster the State’s interest in deterring particularly reprehensible conduct." Ewing, 537 A.2d at 1175. We have held that a cause of action for wrongful discharge is available to at-will employees under the Adams-Carl line of cases, consistent with its strict requirements. Specifically, a plaintiff must show that the employer-defendant acted in contravention of an "identifiable policy that has been ‘officially declared’ in a statute or municipal regulation, or in the Constitution . . . . " Fingerhut, supra, 738 A.2d at 806 (quoting Carl, ain supra note 1, 702 A.2d at 164). "[T]here must be a close fit between the policy thus declared and the conduct at issue in the allegedly wrongful termination." Id. at 803 n.7 (quoting the majority in Carl, supra note 1, 702 A.2d at 164). . . .

Exhaustion of Administrative Remedies

The trial court ruled that appellants’ claims must be dismissed for the separate and independent reason of failure to exhaust the grievance and arbitration remedies under the CBA. Appellants argue that the grievance policy in their CBA does not apply to disputes for wrongful and retaliatory termination in violation of public policy. They contend that the plain language of the CBA imposes the grievance/arbitration process only on those disputes that arise out of the agreement and that their independent public policy tort claims do not. Similarly, amicus argues that arbitration clauses in CBAs generally do not preclude an employee from pursuing an action for wrongful termination. Amicus contends that, absent an individual arbitration agreement as opposed to a CBA, an employee cannot be held to have bargained away his rights to sue.

. . . Appellants rely upon a case where the Maryland Court of Appeals specifically addressed the question: "Do the strictures of federal preemption require that we impose an exhaustion requirement in the context of a state tort action for abusive discharge?" See Finch v. Holladay-Tyler Printing, Inc., 322 Md. 197, 586 A.2d 1275, 1278 (1991). In Finch, the court interpreted Lingle, supra, to mean that an employee need not resort to arbitration "when there is no need to construe the CBA or when the issue of whether or not the CBA was violated is irrelevant to the abusive discharge action." Id. at 1279. More recently, the Maryland Court of Appeals clarified the Finch holding, stating it "interpret[s] Finch as standing for the proposition that the exhaustion of remedies under a collective bargaining agreement is not required when the issues raised by the plaintiff’s wrongful discharge claim are not dependent upon an interpretation of the collective bargaining agreement." Gazunis v. Foster, 400 Md. 541, 929 A.2d 531, 544 (Md. 2007).

Similarly, virtually all federal circuits have held that an employee covered by a CBA has a right to sue to vindicate certain statutory rights or rights independent of the CBA without having to resort first to the collectively bargained grievance-arbitration procedures. [collecting cases] . . .

Addressing analogous issues, state courts have also held that exhaustion of contract arbitration remedies in a collective bargaining agreement is not required before an aggrieved party seeks redress in court for alleged violations of independent rights created by statute or based on violation of public policy. [collecting cases]

. . . We see no reason in principle why the common law claim at issue here could not be subject to arbitration, just as a statutory claim may be. The issue is whether the employees have in fact agreed to arbitrate that claim. Gilmer and Klieforth are distinguishable from our case because they involved agreements to arbitrate signed by the individual employee and enforceable under the Federal Arbitration Act or its District of Columbia counterpart. There is no similar agreement to arbitrate signed by the individual employees in this case, and courts currently are divided on whether a broadly-worded arbitration clause in a CBA waives an employee’s right to a judicial forum for a claim that does not arise out of the CBA. Compare Pryner, supra, 109 F.3d at 363-65 ("the union cannot consent for the employee by signing a collective bargaining agreement that consigns the enforcement of statutory rights to the union-controlled grievance and arbitration machinery created by the agreement") with Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 215 (4th Cir. 2007) (union-negotiated collective bargaining agreements that require the arbitration of statutory discrimination claims are valid and binding on unionized employees). The Supreme Court recently heard argument in a case which may resolve the issue. 14 Penn Plaza LLC v. Pyett, No. 07-581 (argued Dec. 1, 2008). We need not await that ruling, however. We will assume, without deciding, that an arbitration clause in a collective bargaining agreement that waived the right to a judicial forum for an independent claim would be enforceable.

In a case cited by amicus in support of its position, the Supreme Court held that a general arbitration clause in a CBA did not require the employee to use the arbitration procedure before seeking redress in court for an alleged violation of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq. Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 72, 82 (1998). The Supreme Court held that absent a "clear and unmistakable waiver of the covered employees’ rights to a judicial forum for federal claims of employment discrimination," which was not present, the employee could assert his claims in court without resorting to arbitration. Id. at 82. . . .

. . .To the extent that appellants can show that they are asserting rights that do not arise under the CBA, but rather ones that are distinctly separate and independent of it, their CBA does not by its terms restrict their right to a judicial forum. See, e.g., Finch, supra, 586 A.2d at 1278; Smith, supra note 9, 991 P.2d at 1143; Conaway, supra, 431 N.W.2d at 800. In its brief alternative ruling dismissing on the grounds of failure to exhaust grievance and arbitration remedies, the trial court did not focus on whether the claims asserted arise under the CBA or are independent of it and the significance of that distinction to its disposition. With respect to appellants Byrd and Quarles, whose claims must be remanded for further consideration under the preemption analysis, we cannot determine on the present record whether they are asserting claims that are, in fact, independent of the CBA. Therefore, upon remand, the trial court should make the necessary determination and consider, in light of the principles enunciated in this opinion, whether Byrd and Quarles must exhaust administrative remedies before proceeding. . . .

[Alan Kabat, Bernabei & Wachtel, PLLC]

DCOHR Finds Probable Cause in Age Discrimination Suit

The District of Columbia Office of Human Rights recently issued a probable cause finding on the age discrimination complaint brought by one of our clients against Potomac Apartment Group, LLC. Steven Leckar of Shainis & Peltzman and Dave Wachtel of Bernabei & Wachtel represent Our Client.                                                    

Our Client, 56 years old at the time of his termination in Spring 2007, worked for Potomac for four years before Potomac replaced him with a man in his twenties.

OHR based its finding on the disparity between Our Client’s age and his replacement’s, and the inconsistency of management’s explanations. Documents showed Potomac claimed the position was eliminated, but when Our Client returned two weeks after his last day to retrieve some belongings, he saw a younger man at his position doing the identical job he had just left. The General Manager then referred to the man behind the desk as “young blood.” Our Client never had a bad performance review, and although Potomac also claims he resigned, there is no resignation letter or evidence to support such a claim and Our Client had no desire or reason to quit since it was a relatively low stress job which suited Our Client.

The parties will convene for conciliation under the auspices of DCOHR. If the conciliation effort is unsuccessful, the District of Columbia Commission on Human Rights will hear the case.

Justin Dreyfuss