Bernabei & Wachtel Blog

D.C. Court of Appeals, en banc workers comp decision

Sometimes employment discrimination plaintiffs will also try to bring workers compensation claims, arguing that they suffered medical/physical injuries as a result of the workplace stress. The employer may try to argue that the employee's pre-existing medical conditions caused the injuries, and that the employer should not be responsible for any aggravation of the pre-existing conditions. The D.C. Court of Appeals, in its prior decisions, has created a somewhat muddled set of precedent in this area.

Today (May 15), the D.C. Court of Appeals, sitting en banc, unanimously held that whether a workers' comp claimant had pre-existing medical conditions is not a bar to a workers comp claim based on an allegation that workplace conditions aggravated or exacerbated those pre-existing conditions.

The court applies this to both private sector and D.C. government employee workers comp claims.

Here, the claimant had, years ago, received mental health care to deal with the stress of her father's death, since he had been committed to mental institutions for a number of years. However, while working for the DC Public Schools, she did not require treatment, until after she suffered some physical injuries in the workplace upon which her mental condition significantly worsened.

Some excerpts follow:

http://www.dcappeals.gov/dccourts/appeals/pdf/04-AA-211.PDF

No. 04-AA-211

CHARLENE MCCAMEY, PETITIONER, V.

DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.

Petition for Review of a Decision of the District of Columbia Department of Employment Services (Dir. Dkt. No. 10-03)

(Argued en banc November 30, 2006 Decided May 15, 2008 )

Before WASHINGTON, Chief Judge, and FARRELL, RUIZ, REID, GLICKMAN, KRAMER, FISHER, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.

WASHINGTON, Chief Judge:

Charlene McCamey petitioned this court to review a decision of the Director of the District of Columbia Department of Employment Services (D.C. DOES) that denied her workers' compensation claim for psychological injuries she alleges resulted from an accidental physical injury suffered in the course of her employment. A three-judge division of this court affirmed the Director's decision, holding that the Director's application of an objective test to workers' compensation claims involving psychological injuries was consistent with this court's prior decisions. We granted Ms. McCamey's petition for rehearing en banc to consider whether application of an objective standard, as currently defined, to psychological injuries that are related to work-related physical injuries is consistent with the language and purpose of our workers' compensation law. We conclude that it is not and accordingly must reverse.

. . . At issue in this case is Ms. McCamey's claim for temporary total disability benefits arising from the psychological injuries that she attributes to her workplace accident. Dr. Hammill, the treating psychiatrist, was of the opinion that the workplace incident exacerbated Ms. McCamey's pre-existing psychological disorder. Dr. Bruce Smoller, a psychiatrist who examined Ms. McCamey on behalf of DCPS, and who relied in part on an MRI scan of Ms. McCamey's brain and on thyroid tests, opined that the source of Ms. McCamey's psychological injury was not her accident, but rather a pre-existing psychosis. In a "Recommended Compensation Order" entered on April 22, 2003, the ALJ denied Ms. McCamey's claim for psychological injury. . . .

. . . We are now presented with that opportunity. In light of the humanitarian nature of the statute, we hold, in cases involving physical-mental claims, that the objective test is inconsistent with the statute's principal purpose of compensating employees who prove a connection between a disability and their work. Accordingly, its use must be overturned. Further, just as the aggravation rule in purely physical claims stems from the general principle that an employer must take an employee as it finds him or her, so too should the aggravation rule apply in physical-mental claims without requiring the employee to point to a hypothetical third person - an additional, heightened burden that is necessarily speculative and unnecessary within the context of physical-mental claims where the work-related cause is distinct. Alternatively, if the psychological injury is tied not to the work-related accident, but rather a physical injury that itself arose from the work-related accident, the reviewing body could analyze it as a subsequently occurring injury that could be causally tied to the injury sustained in the workplace accident. Once complainant has established a compensable primary injury (either through the presumption or testimony), the necessary causal connection standard is enunciated in Brown, supra, 700 A.2d at 791-92.

. . . The objective test as applied cannot be reconciled with the clear language of either the WCA or the CMPA, both of which provide in straightforward language that the Acts compensate workers for injuries they suffer on the job. The WCA covers "[t]he injury or death of an employee that occurs in the District of Columbia if the employee performed work for the employer, at the time of the injury or death, while in the District of Columbia," D.C. Code § 32-1503 (a)(1), while the CMPA covers "the disability or death of an employee resulting from personal injury sustained while in the performance of his or her duty," D.C. Code § 1-623.02. Further, the test as applied fails to meet the humanitarian purpose of the statute, it neglects to award compensation in arguable cases, and it is contrary to the aggravation rule and the general principle that employers must accept employees as they find them. Moreover, as demonstrated above, it is simply unnecessary in physical-mental cases because the accident supplies the necessary objective work connection. Accordingly, the test must be overturned.

Though the workplace accident supplies the necessary and objective workplace connection, the claimant must still ultimately prove that his or her disability is causally connected to that accident. While a review of decisions from other jurisdictions reveals different terminology for defining causation in this context, those jurisdictions do not offer any particular reason for adopting any particular test (e.g., "but for," "causative factor," "directly traceable"). Thus, we hold that it is appropriate to apply the causal standards seen throughout D.C. workers' compensation cases. In cases where the statutory presumption is applicable, the claimant must show that the physical accident had the potential of resulting in or contributing to the psychological injury.

Maryland Client Wins Case, Breaks Precedent

In November of last year, the firm won an appeal to a suburban County Merit System Protection Board. And then some.

In a decision handed down by the Board, the client's brief suspension was revoked and lost wages and benefits were restored. In addition, all performance evaluations were expunged of negative comments regarding the matter that caused the suspension. The Board didn't stop there however, addressing the issue further and ordering effectiveness assessments on the parties involved and training for the County supervisors in due process requirements in the disciplinary process. Our client did not ask for the last two directives, but the Board ordered them anyway. The Board also ordered the County to pay attorney’s fees for David Wachtel and Emily Read, who handled the appeal, breaking precedent set by another similar case. Clearly the Board recognized the ineffective management at our client's office and saw the need for a comprehensive ruling.

Justin Dreyfuss

Racial Profiling Case Gets Filed in U.S. District Court

On April 29, 2008, the firm filed suit on behalf of Kambiz Fattahi in the U.S. District Court for violation of his civil rights by Georgetown University. Fattahi, a graduate student at Georgetown, was attending a graduation ceremony for a friend last spring, but arrived late and was forced to sit in the front row without a friend he was supposed to join upon arrival. Once seated, Fattahi observed the speakers, looked for his friend, and checked his cell phone for missed calls. Someone, allegedly an audience member, reported Fattahi to security which prompted a University police officer to approach Fattahi during the ceremony and tell him to come with him because he was "making people nervous." No names of people making the allegations have been provided by the University, nor any specifics on what they said, if anything, about Fattahi.

Fattahi, who is from Iran and has dual citizenship, followed the officer outside of the gym into a very public hallway just outside the ceremony where another officer was waiting and they began interrogating him at length. At one point the officers made sarcastic remarks about the Middle East and Persia, since Fattahi works for BBC-Persia and gave them his business card saying such. They then inquired as to his national origin to which Fattahi responded they had no right to do. Even after Fattahi presented several forms of proper identification, including his student card, they refused to let him go, asking several more questions and confiscating his BBC card. Only at the very end of the interrogation, nearly 30 minutes later, did they check Fattahi's bag, in which they found only his phone and a box of cookies he was going to give to his graduating friend.

Fattahi reported the incident to the University, which said they would conduct their own investigation. In a 7-page report released several weeks later and sent to Fattahi, the University emphatically denied any wrongdoing by any of the officers and said they followed proper procedure. They also denied making any remarks about the Middle East or Persia, and that the only reason they asked about Fattahi's national origin was to see if he needed a translator. Fattahi speaks fluent English.

In the claim, Fattahi alleges breach's of his Fourth and Fourteenth Constitutional amendment rights on grounds of unlawful detainment and racial profiling.

Justin Dreyfuss

US Supreme Court, arbitration decision

In a 6-3 decision, the US Supreme Court held that an arbitration agreement cannot expand the scope of federal district review beyond that allowed in the Federal Arbitration Act. Under Sections 10 and 11 of the FAA, a district court's review of an arbitration decision is very limited; here, in a rental contract, the parties had agreed to a much broader scope of review ("erroneous" ruling). The Supreme Court said that was an impermissible end run around the FAA.

The synopsis follows:

SUPREME COURT OF THE UNITED STATES

HALL STREET ASSOCIATES, L. L. C. v. MATTEL, INC.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 06-989.

Argued November 7, 2007-Decided March 25, 2008

The Federal Arbitration Act (FAA), 9 U. S. C. §§9-11, provides expedited judicial review to confirm, vacate, or modify arbitration awards. Under §9, a court "must" confirm an award "unless" it is vacated, modified, or corrected "as prescribed" in §§10 and 11. Section 10 lists grounds for vacating an award, including where the award was procured by "corruption," "fraud," or "undue means," and where the arbitrators were "guilty of misconduct," or "exceeded their powers." Under §11, the grounds for modifying or correcting an award include "evident material miscalculation," "evident material mistake," and "imperfect[ions] in [a] matter of form not affecting the merits."

After a bench trial sustained respondent tenant's (Mattel) right to terminate its lease with petitioner landlord (Hall Street), the parties proposed to arbitrate Hall Street's claim for indemnification of the costs of cleaning up the lease site. The District Court approved, and entered as an order, the parties' arbitration agreement, which, inter alia, required the court to vacate, modify, or correct any award if the arbitrator's conclusions of law were erroneous. The arbitrator decided for Mattel, but the District Court vacated the award for legal error, expressly invoking the agreement's legal-error review standard and citing the Ninth Circuit's LaPine decision for the proposition that the FAA allows parties to draft a contract dictating an alternative review standard. On remand, the arbitrator ruled for Hall Street, and the District Court largely upheld the award, again applying the parties' stipulated review standard. The Ninth Circuit reversed, holding the case controlled by its Kyocera decision, which had overruled LaPine on the ground that arbitration-agreement terms fixing the mode of judicial review are unenforceable, given the exclusive grounds for vacatur and modification provided by FAA §§10 and 11.

Held:

1. The FAA's grounds for prompt vacatur and modification of awards are exclusive for parties seeking expedited review under the FAA. The Court rejects Hall Street's two arguments to the contrary. First, Hall Street submits that expandable judicial review has been accepted as the law since Wilko v. Swan, 346 U. S. 427. Although a Wilko statement-"the interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation," id., at 436-437 (emphasis added)-arguably favors Hall Street's position, arguable is as far as it goes. Quite apart from the leap from a supposed judicial expansion by interpretation to a private expansion by contract, Hall Street overlooks the fact that the Wilko statement expressly rejects just what Hall Street asks for here, general review for an arbitrator's legal errors. Moreover, Wilko's phrasing is too vague to support Hall Street's interpretation, since "manifest disregard" can be read as merely referring to the §10 grounds collectively, rather than adding to them, see, e.g., Mitsubishi Motors Corp. v. Soler Chrysler- Plymouth, Inc., 473 U. S. 614, 656, or as shorthand for the §10 subsections authorizing vacatur when arbitrators were "guilty of misconduct" or "exceeded their powers." Second, Hall Street says that the agreement to review for legal error ought to prevail simply because arbitration is a creature of contract, and the FAA is motivated by a congressional desire to enforce such agreements. Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 220. This argument comes up short because, although there may be a general policy favoring arbitration, the FAA has textual features at odds with enforcing a contract to expand judicial review once the arbitration is over. Even assuming §§10 and 11 could be supplemented to some extent, it would stretch basic interpretive principles to expand their uniformly narrow stated grounds to the point of legal review generally. But §9 makes evident that expanding §10's and §11's detailed categories at all would rub too much against the grain: §9 carries no hint of flexibility in unequivocally telling courts that they "must" confirm an arbitral award, "unless" it is vacated or modified "as prescribed" by §§10 and 11. Instead of fighting the text, it makes more sense to see §§9-11 as the substance of a national policy favoring arbitration with just the limited review needed to maintain arbitration's essential virtue of resolving disputes straightaway. Dean Witter, supra, at 217, 219, distinguished. Pp. 7-12.

2. In holding the §10 and §11 grounds exclusive with regard to enforcement under the FAA's expedited judicial review mechanisms, this Court decides nothing about other possible avenues for judicial enforcement of awards. Accordingly, this case must be remanded for consideration of independent issues. Because the arbitration agreement was entered into during litigation, was submitted to the District Court as a request to deviate from the standard sequence of litigation procedure, and was adopted by the court as an order, there is some question whether it should be treated as an exercise of the District Court's authority to manage its cases under Federal Rule of Civil Procedure 16. This Court ordered supplemental briefing on the issue, but the parties' supplemental arguments implicate issues that have not been considered previously in this litigation and could not be well addressed for the first time here. Thus, the Court expresses no opinion on these matters beyond leaving them open for Hall Street to press on remand. Pp. 13-15.

196 Fed. Appx. 476, vacated and remanded.

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, GINSBURG, and ALITO, JJ., joined, and in which SCALIA, J., joined as to all but footnote 7.

STEVENS, J., filed a dissenting opinion, in which KENNEDY, J., joined. BREYER, J., filed a dissenting opinion.

(Alan R. Kabat, Bernabei & Wachtel, PLLC)

Supreme Court decision on EEOC charge filing requirements

The Supreme Court issued a good 7-2 decision in Fed Ex v. Holowecki. In short, at least as to ADEA complaints, the court holds that an EEOC charge or complaint is to be broadly construed, and technical problems with the EEOC's treatment of that charge should not be held against the complainant, since the employment statutes are designed to be remedial. This decision will be useful in representing clients who initially filed their EEOC charge on a pro se basis, and subsequently retained counsel.

The key phrase is:

"We conclude as follows: In addition to the information required by the regulations, i.e., an allegation and the name of the charged party, if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee."

Some excerpts follow:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined.

THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined.

JUSTICE KENNEDY delivered the opinion of the Court.

This case arises under the Age Discrimination in Employment Act of 1967 (ADEA or Act), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq. When an employee files "a charge alleging unlawful [age] discrimination" with the Equal Employment Opportunity Commission (EEOC), the charge sets the Act's enforcement mechanisms in motion, commencing a waiting period during which the employee cannot file suit. The phrase, "a charge alleging unlawful discrimination," is used in the statute, §626(d), and "charge" appears in the agency's implementing regulations; but it has no statutory definition. In deciding what constitutes a charge under the Act the Courts of Appeals have adopted different definitions. As a result, difficulties have arisen in determining when employees may seek relief under the ADEA in courts of competent jurisdiction.

As a cautionary preface, we note that the EEOC enforcement mechanisms and statutory waiting periods for ADEA claims differ in some respects from those pertaining to other statutes the EEOC enforces, such as Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., and the Americans with Disabilities Act of 1990, 104 Stat. 327, as amended, 42 U. S. C. §12101 et seq. While there may be areas of common definition, employees and their counsel must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination. Cf. General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 586-587 (2004). This is so even if the EEOC forms and the same definition of charge apply in more than one type of discrimination case.

. . . The immediate question before us is the timeliness of the suit filed by one of the plaintiffs below, Patricia Kennedy, referred to here as "respondent." Petitioner moved to dismiss respondent's action, contending respondent had not filed her charge with the EEOC at least 60 days before filing suit, as required by 29 U. S. C. §626(d). Respondent countered that she filed a valid charge on December 11, 2001, by submitting EEOC Form 283.

The agency labels Form 283 an "Intake Questionnaire." Respondent attached to the questionnaire a signed affidavit describing the alleged discriminatory employment practices in greater detail. The District Court determined these documents were not a charge and granted the motion to dismiss. No. 02 Civ. 3355(LMM) (SDNY, Oct. 9, 2002), App. to Pet. for Cert. 39a. An appeal followed, and the Court of Appeals for the Second Circuit reversed. See 440 F. 3d 558, 570 (2006). We granted certiorari to consider whether respondent's filing was a charge, 551 U. S. ___ (2007), and we now affirm.

. . . For efficient operations, and to effect congressional intent, the agency requires some mechanism to separate information requests from enforcement requests. Respondent's proposed standard, that a charge need contain only an allegation of discrimination and the name of the employer, falls short in this regard. Were that stripped-down standard to prevail, individuals who approach the agency with questions could end up divulging enough information to create a charge. This likely would be the case for anyone who completes an Intake Questionnaire-which provides space to indicate the name and address of the offending employer and asks the individual to answer the question, "What action was taken against you that you believe to be discrimination?" App. to Pet. for Cert. 43a. If an individual knows that reporting this minimal information to the agency will mandate the agency to notify her employer, she may be discouraged from consulting the agency or wait until her employment situation has become so untenable that conciliation efforts would be futile. The result would be contrary to Congress' expressed desire that the EEOC act as an information provider and try to settle employment disputes through informal means.

For these reasons, the definition of charge respondent advocates-i.e., that it need conform only to 29 CFR §1626.6-is in considerable tension with the structure and purposes of the ADEA. The agency's interpretive position- the request-to-act requirement-provides a reasonable alternative that is consistent with the statutory framework. No clearer alternatives are within our authority or expertise to adopt; and so deference to the agency is appropriate under Skidmore. We conclude as follows: In addition to the information required by the regulations, i.e., an allegation and the name of the charged party, if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee.

. . . It is true that under this permissive standard a wide range of documents might be classified as charges. But this result is consistent with the design and purpose of the ADEA. . . .

Having determined that the agency acted within its authority in formulating the rule that a filing is deemed a charge if the document reasonably can be construed to request agency action and appropriate relief on the employee's behalf, the question is whether the filing here meets this test. The agency says it does, and we agree. The agency's determination is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces. . . .

Documents filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee's rights and statutory remedies. Construing ambiguities against the drafter may be the more efficient rule to encourage precise expression in other contexts; here, however, the rule would undermine the remedial scheme Congress adopted. It would encourage individuals to avoid filing errors by retaining counsel, increasing both the cost and likelihood of litigation.

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.

Today the Court decides that a "charge" of age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA) is whatever the Equal Employment Opportunity Commission (EEOC) says it is. The filing at issue in this case did not state that it was a charge and did not include a charge form; to the contrary, it included a form that expressly stated it was for the purpose of "precharge" counseling. What is more, the EEOC did not assign it a charge number, notify the employer of the complainant's allegations, or commence enforcement proceedings. Notwithstanding these facts, the Court concludes, counterintuitively, that respondent's filing is a charge because it manifests an intent for the EEOC to take "some action."

[Alan Kabat / Bernabei & Wachtel, PLLC]

Supreme Court decision on "me too" evidence

Today (Feb. 26), the Supreme Court quickly issued an unanimous decision in the Sprint v. Mendelsohn case, on appeal from the Tenth Circuit, addressing the use of "me too" evidence, i.e., other witnesses testifying that other supervisors in the same workplace also discriminated / harassed or retaliated against them.

The Supreme Court, however, did not decide the ultimate issue, i.e., admissibility of such evidence, but instead punted back to the district court to explain its reasoning. The decision may be useful in upholding challenges to evidentiary rulings on appeal, i.e., the appellate courts should not be second-guessing evidentiary decisions under Rule 403, Fed. R. Evid., where those decisions are fact-intensive. Further, at the district court level, there is no per se rule as to the admissibility or exclusion of evidence under Rules 401 and 403, since those determinations turn on the specific factual circumstances of each case.

Some excerpts follow:

JUSTICE THOMAS delivered the opinion of the Court.

In this age discrimination case, the District Court excluded testimony by nonparties alleging discrimination at the hands of supervisors of the defendant company who played no role in the adverse employment decision challenged by the plaintiff. The Court of Appeals, having concluded that the District Court improperly applied a per se rule excluding the evidence, engaged in its own analysis of the relevant factors under Federal Rules of Evidence 401 and 403, and remanded with instructions to admit the challenged testimony. We granted certiorari on the question whether the Federal Rules of Evidence required admission of the testimony. We conclude that such evidence is neither per se admissible nor per se inadmissible. Because it is not entirely clear whether the District Court applied a per se rule, we vacate the judgment of the Court of Appeals and remand for the District Court to conduct the relevant inquiry under the appropriate standard.

. . . In a minute order, the District Court granted the motion, excluding, in relevant part, evidence of "discrimination against employees not similarly situated to plaintiff." App. to Pet. for Cert. 24a. In clarifying that Mendelsohn could only "offer evidence of discrimination against Sprint employees who are similarly situated to her," the court defined " ' [s]imilarly situated employees,' for the purpose of this ruling, [as] requir[ing] proof that (1) Paul Ruddick [sic] was the decision-maker in any adverse employment action; and (2) temporal proximity." Ibid. Beyond that, the District Court provided no explanation of the basis for its ruling. As the trial proceeded, the judge orally clarified that the minute order was meant to exclude only testimony "that Sprint treated other people unfairly on the basis of age," and would not bar testimony going to the "totally different" question "whether the [reduction in force], which is [Sprint's] stated nondiscriminatory reason, is a pretext for age discrimination." App. 295a-296a.

The Court of Appeals for the Tenth Circuit treated the minute order as the application of a per se rule that evidence from employees with other supervisors is irrelevant to proving discrimination in an ADEA case. . . . The Court of Appeals then determined that the evidence was relevant and not unduly prejudicial, and reversed and remanded for a new trial. We granted certiorari, 551 U. S. ___ (2007), to determine whether, in an employment discrimination action, the Federal Rules of Evidence require admission of testimony by nonparties alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff.

. . . The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case. Applying Rule 403 to determine if evidence is prejudicial also requires a fact intensive, context-specific inquiry. Because Rules 401 and 403 do not make such evidence per se admissible or per se inadmissible, and because the inquiry required by those Rules is within the province of the District Court in the first instance, we vacate the judgment of the Court of Appeals and remand the case with instructions to have the District Court clarify the basis for its evidentiary ruling under the applicable Rules.

[Alan Kabat / Bernabei & Wachtel, PLLC]

Supreme Court grants cert in arbitration case

The U.S. Supreme Court granted certiorari today in 14 Penn Plaza LLC v. Pyett, et al. (Feb. 19, 2008), from the Second Circuit, which addresses the question of whether a waiver of a judicial forum for employment discrimination claims in a union-negotiated collective bargaining agreement is enforceable, where the CBA provides for arbitration of such claims.É A. CABRANES, Circuit Judge:

In short, the Second Circuit held that union-negotiated waivers are unenforceable, which is contrary to the Fourth Circuit's decision in Austin v. Owens Brockway Glass Container, 78 F.3d 875 (4th Cir. 1996). This circuit conflict is presumably the reason the SCT granted cert, even though it denied cert to the Austin decision in 1996.

One wrinkle is that here, while the union initially submitted the members' age discrimination claims to arbitration, it then withdrew those claims. After the members obtained an EEOC right to sue letter and filed a lawsuit in federal district court, the union then ultimately agreed to allow the members to have the ADEA claims heard by the arbitrator, albeit at their own expense (which they declined to do). The plaintiffs were night watchmen at an office building, and the union is the SEIU.

Some language from the Second Circuit's opinion follows, so you can see what the dispute entails:

498 F.3d 88 (2d Cir. 2007)

Before: CABRANES and RAGGI, Circuit Judges, and KORMAN, District Judge.

Defendants in an employment discrimination suit appeal from an order of the United States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge) denying their motion to compel arbitration to resolve plaintiffs' age discrimination claims in accordance with the collective bargaining agreement between plaintiffs' union and their employer. The District Court concluded that the arbitration clause in the collective bargaining agreement was unenforceable under Rogers v. New York University, 220 F.3d 73 (2d Cir. 2000).

Affirmed.

In this appeal, defendants challenge an order of the United States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge) denying their motion to compel arbitration of plaintiffs' age discrimination claims in accordance with the collective bargaining agreement between plaintiffs' union and their employer. Defendants argue that the District Court, which relied on the Supreme Court's decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), and our Court's decision in Rogers v. New York University, 220 F.3d 73 (2d Cir. 2000), failed to take into account the Supreme Court's decisions in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), and Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998). We disagree, and reaffirm our decision in Rogers that mandatory arbitration clauses in collective bargaining agreements are unenforceable to the extent they waive the rights of covered workers to a judicial forum for federal statutory causes of action.

. . . While conceding that in Gilmer the Supreme Court dealt only with contracts signed by individuals and not CBAs, defendants claim, see Appellants' Br. 12, that in Wright the Supreme Court made clear its abandonment of Gardner-Denver's rule that a union may only "waive certain statutory rights related to collective activity, such as the right to strike," Gardner-Denver, 415 U.S. at 51. We disagree. Our Court in Rogers squarely decided that a union-negotiated mandatory arbitration agreement purporting to waive a covered worker's right to a federal forum with respect to statutory rights is unenforceable. We took full account of both Gilmer and Wright and concluded that the Supreme Court's decision in Gardner-Denver remains good law. Our conclusion in Rogers was an alternative holding, not dicta, and continues to bind our Court. In any event, none of the cases relied upon by defendants persuades us that this holding in Rogers was incorrect.

. . . None of the other Supreme Court cases on which defendants rely casts doubt on our holding in Rogers. For example, they draw our attention to Metropolitan Edison Co. v.. N.L.R.B., 460 U.S. 693 (1983), and Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001). Metropolitan Edison held that union officials may be bound by union-negotiated agreements to enforce no-strike agreements, and thus waive their right, guaranteed by the National Labor Relations Act § 8(a)(3), 29 U.S.C. § 158(a)(3), to be free of anti-union discrimination. Metropolitan Edison, 460 U.S at 708. However, rather than supporting the notion that individual rights may be waived by CBAs, as defendants claim, that holding is in line with the Supreme Court's observation in Gardner-Denver that unions "may waive certain statutory rights related to collective activity, such as the right to strike." Gardner-Denver, 415 U.S. at 51 (emphasis added). Circuit City addressed an individual's employment contract, rather than a CBA, and therefore likewise does not address the issue before us now.

In short, there is nothing that has changed in the nine years since Wright or the seven years since Rogers that compels us to reverse our ruling in Rogers that arbitration provisions contained in a CBA, which purport to waive employees' rights to a federal forum with respect to statutory claims, are unenforceable.

(Alan R. Kabat / Bernabei & Wachtel, PLLC)

Federal Circuit, whistleblower decision

The US Court of Appeals for the Federal Circuit, in a high-profile Whistleblower Protection Act decision involving the former head of the US Park Police, who was terminated for speaking to a Washington Post reporter about safety problems due to budget cuts, gave a partial victory to the plaintiff.  Chambers v. Dept. of the Interior, No. 2007-3050 (Fed. Cir. Feb. 14, 2008). 

The Federal Circuit found that the MSPB improperly applied the "gross misconduct" standard of the WPA, and not the "public health or safety" standard, in analyzing whether the plaintiff's disclosures were protected under the WPA.  The court remanded to the MSPB for further determination under the correct standard.  However, the dissenting opinion (Judge Mayer) suggests that the result would still be the same under the correct standard, which may foreshadow the result on remand.

The opinion is online at:

http://www.cafc.uscourts.gov/opinions/07-3050.pdf

Some excerpts follow:

United States Court of Appeals for the Federal Circuit 2007-3050

TERESA C. CHAMBERS, Petitioner, v. DEPARTMENT OF THE INTERIOR, Respondent.

Before MAYER, DYK, and PROST, Circuit Judges.

PROST, Circuit Judge.

      Teresa Chambers petitions for review of an adverse decision of the Merit Systems Protection Board ("MSPB" or "Board"). Chambers v. Dep't of the Interior, DC1221040616-W-1, DC0752040642-I-1 (M.S.P.B. Sept. 21, 2006) ("Board Decision"). We find no error with the portion of Board's decision affirming the administrative judge's findings and conclusions on the charges of misconduct and the penalty imposed, and therefore we affirm-in-part. Because the Board, however, applied an incorrect standard to determine if Chambers made a protected disclosure under the Whistleblower Protection Act, we remand for reconsideration under the correct standard.

BACKGROUND

      Chambers served as Chief of the United States Park Police, a component of the National Park Service ("NPS"), from February 10, 2002, until she was removed on July 9, 2004. The NPS acts as a sub-agency of the Department of the Interior ("DOI" or "the agency"). In 2003, the Office of Management and Budget ("OMB") decided not to seek increases in the Park Police budget. Dissatisfied with that decision, Chambers spoke with a reporter from The Washington Post and also with a United States House of Representatives ("House") Interior Appropriations Subcommittee staffer about the budget and its implications for the Park Police. The newspaper then published an article attributing several statements regarding the budget to Chambers, prompting Chambers's supervisor, Donald Murphy, to first restrict Chambers from further communication with the press and then to place her on administrative leave pending review.

      On December 17, 2003, Murphy proposed to remove Chambers from service based on six charges of misconduct. Chambers, in response, filed a complaint with the Office of Special Counsel ("OSC"), claiming reprisal for a protected disclosure, and also appealed the proposed removal and her administrative leave. After the deciding official sustained all six charges of misconduct and effectuated the removal, Chambers filed another appeal with the Board. . . .

      

      On appeal, Chambers argues that the Board erred by denying her claim that, by removing her from service, the agency acted in retaliation for a protected disclosure by Chambers. Specifically, she alleges that a number of her actions constitute disclosure of substantial and specific dangers to public safety under the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) ("WPA"). Further, the National Treasury Employees Union, as amicus curiae, argues that the Board applied an incorrect and overly narrow standard for what constitutes a protected disclosure of a risk to public health or safety. . . .

      

      To prevail on a claim under the WPA, an employee must show that she disclosed information she reasonably believed "evidences (i) a violation of law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety." 5 U.S.C. § 2302(b)(8)(A); see Reid v. Merit Sys. Prot. Bd., 508 F.3d 674, 678 (Fed. Cir. 2007) (concluding that, to make a protected disclosure, a whistleblower need only disclose what he reasonably believes is an imminent-not actual-violation of law, rule, or regulation).

      With respect to the denial of her claims under the WPA, Chambers only challenges the Board's conclusion regarding her alleged disclosure of a danger to public safety. Specifically, she and the amicus point to the disclosures to the Washington Post reporter and the House staffer. According to Chambers, she disclosed information she reasonably believed identified substantial and specific dangers to public safety, and the agency removed her in response. She argues that the Board applied an erroneous standard when reviewing the administrative judge's decision, and therefore reached the wrong conclusion with respect to her disclosures.

      We agree with Chambers and the amicus that the Board applied an incorrect standard when evaluating her WPA claim relating to disclosure of a risk to public safety. In our view, the Board improperly blended the concepts of gross mismanagement and risk to public safety.

      The Board considered Chambers's disclosures under the standard from White, 391 F.3d at 1382. Board Decision, slip op. at 12-14. Where the Board considered whether Chambers's disclosures evidenced gross mismanagement, White does provide the applicable standard. As discussed in White, a lawful but problematic policy constitutes gross mismanagement when reasonable people could not debate the error in the policy. 391 F.3d at 1382. But White concerned only gross mismanagement, not a danger to public health or safety. Id. at 1381.

      The Board failed to distinguish disclosures of a danger to public health or safety from allegations of gross mismanagement. In particular, it applied the White standard to "a statement that a particular policy choice raises risks to the citizenry." Board Decision, slip op. at 13. While Chambers certainly expressed a disagreement with a policy decision, she also potentially disclosed a danger to public safety that may have resulted from that decision. The Board classified "[t]he personal opinions that [Chambers] shared with the newspaper reporter and congressional staffer regarding the funding level and priorities consciously set by policymakers for her agency," as different from disclosures of a danger to public safety, id., slip op. at 15; but Chambers's opinions about the consequences of the policy decisions could have disclosed a danger to public safety. The Board should have considered those aspects of Chambers's disclosures directed to public safety and determined if she disclosed information she reasonably believed evidenced a substantial and specific danger to public safety.

      

      

CONCLUSION

      Because the Board applied an incorrect standard when evaluating Chambers's claim that the agency removed her in reprisal for a protected disclosure under the WPA, we vacate and remand for application of the correct standard, as explained above. As to all other aspects of the Board's decision, however, we affirm.

[Alan R. Kabat, Bernabei & Wachtel PLLC]

Fourth Circuit, decision on retaliatory lawsuits

The Fourth Circuit issued a good FLSA retaliation decision, addressing whether a lawsuit filed by the employer against the employee after the employee asserted his statutory rights (here, for overtime pay), could constitute retaliation. Although the Fourth Circuit found that plaintiff's underlying FLSA claim was properly dismissed since he fell into the administrative exception under the statute, the court squarely rejected the employer's assertion that a lawsuit filed against a former employee could not constitute retaliation. The Fourth Circuit found that it was an adverse employment action, in part because it affected the former employee's ability to obtain job references from his former employer, and that the lawsuit would otherwise be a black mark on him. The Fourth Circuit also explains that case law under Title VII's anti-retaliation statute is equally applicable to the FLSA anti-retaliation statute.

The decision is online at the link below, and some excerpts follow:

http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/062092.P.pdf 

Darveau v. Detecon, Inc., No. 06-2092 (4th Cir. Jan. 31, 2008)

Before MOTZ and GREGORY, Circuit Judges, and Henry F. FLOYD, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed in part and reversed and remanded in part by published opinion. Judge Motz wrote the opinion, in which Judge Gregory and Judge Floyd joined.

COUNSEL

ARGUED: Harris D. Butler, III, BUTLER, WILLIAMS & SKILLING, P.C., Richmond, Virginia, for Appellant. John Francis Scalia, GREENBERG & TRAURIG, L.L.P., McLean, Virginia, for Appellee.

ON BRIEF: William C. Tucker, BUTLER, WILLIAMS & SKILLING, P.C., Richmond, Virginia, for Appellant. Matthew H. Sorensen, GREENBERG & TRAURIG, L.L.P., McLean, Virginia, for Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

After Detecon, Inc., a small wireless telecommunications consulting company, discharged one of its officers, Larry Darveau, he brought this action, alleging that Detecon had not paid him overtime in violation of the Fair Labor Standards Act of 1938 ("FLSA" or the "Act"), 29 U.S.C. § 207 (2000). Fifteen days later, Detecon filed a fraud suit in state court against Darveau. Darveau then amended his complaint in this case to allege that Detecon's lawsuit constituted an illegal retaliatory action under 29 U.S.C. § 215(a)(3) (2000) of the FLSA. The district court dismissed Darveau's retaliation claim for failure to state a cause of action, and the court granted summary judgment to Detecon on Darveau's remaining claims. We affirm in part and reverse and remand in part.

. . . . Darveau notes that the Supreme Court has expressly held that a lawsuit filed by an employer against an employee can constitute an act of unlawful retaliation under another federal statute governing employment rights when the lawsuit is filed with a retaliatory motive and lacking a reasonable basis in fact or law. See Bill Johnson's Rests. v. NLRB, 461 U.S. 731, 744 (1983); see also BE & K Constr. Co. v. NLRB, 536 U.S. 516, 528-37 (2002) (affirming Bill Johnson's holding, stressing that only those lawsuits that are retaliatory in intent and baseless in fact or law do not implicate First Amendment and federalism concerns). Darveau's complaint alleges Detecon filed its lawsuit with retaliatory motive and without any reasonable basis in fact or law.

. . . But we find no significant differences in either the language or intent of the two statutes [[Title VII and FLSA]] regarding the type of adverse action their retaliation provisions prohibit. The FLSA and Title VII contain identical general definitions of "employee." Compare 29 U.S.C. § 203(e)(1) (2000) (FLSA) with 42 U.S.C. § 2000e(f) (2000) (Title VII); see also United States v. Rosenwasser, 323 U.S. 360, 362 (1945) (declaring with regard to the FLSA that "[a] broader or more comprehensive coverage of employees within the stated categories would be difficult to frame."). Moreover, both statutes provide the same broad definition of a prohibited retaliatory act; each statute renders it unlawful to "discriminate against" any employee who has engaged in the described protected activities. Compare 29 U.S.C. § 215(a)(3) (FLSA) with 42 U.S.C. § 2000e-3(a) (2000) (Title VII). The similar statutory language suggests that the Supreme Court's interpretation of "employee" in Robinson - to include former as well as current employees - and definition of retaliatory acts in Burlington Northern similarly apply in the FLSA context.

. . . Somewhat surprisingly, Detecon contends that looking to the Supreme Court's Title VII jurisprudence in this FLSA case will generate the "anomalous result" of extending protection from retaliation to former employees who no longer enjoy the substantive protections of the FLSA. Br. of Appellee at 50. Yet in Burlington Northern, the Court rejected this very argument in the Title VII context, observing that Title VII's anti-retaliation provision serves a different purpose than its substantive provisions and that such "differences in . . . purpose . . . remove any perceived 'anomaly.'" 126 S. Ct. at 2414. The more unfortunate anomaly would be if an employee's underlying FLSA claim could be brought after he quit, but the employee's protection from retaliation ended when the employee stepped beyond the employer's doorstep.

Our conclusion accords with that reached by our sister circuits. The Tenth Circuit has held that an employer's third-party complaint for indemnity against four former employers could, as a matter of law, qualify as unlawful retaliation under the FLSA. Martin v. Gingerbread House, Inc., 977 F.2d 1405, 1406-08 (10th Cir. 1992). Similarly, the Sixth Circuit has concluded that the FLSA retaliation provision should extend to former employees: "There is nothing in the language or history of [the FLSA] to indicate that Congress intended to penalize dissatisfied employees who voluntarily leave an employer by thereafter denying them the protections of [the Act]. There is every reason to conclude precisely the contrary." Dunlop v. Carriage Carpet Co., 548 F.2d 139, 147 (6th Cir. 1977). The Fifth Circuit has likewise recognized that the FLSA protects former employees from retaliation, and not merely current ones. Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 306 (5th Cir. 1972). Former employees require such protection because they often need references from past employers, they may face retaliation from new employers who learn they have challenged the labor practices of previous employers, and they sometimes must return to past employers for a variety of reasons, putting them once more at risk of retaliation. Id.

For all these reasons, we hold that the district court clearly erred in requiring Darveau to allege that his employer retaliated against him with a "materially adverse employment action." Rather, a plaintiff asserting a retaliation claim under the FLSA need only allege that his employer retaliated against him by engaging in an action "that would have been materially adverse to a reasonable employee" because the "employer's actions . . . could well dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington Northern, 126 S. Ct. at 2409. Darveau has alleged such an action here, i.e., that his employer filed a lawsuit against him alleging fraud with a retaliatory motive and without a reasonable basis in fact or law. We therefore must reverse the judgment of the district court dismissing Darveau's retaliation claim and remand for further proceedings consistent with this opinion.

Alan R. Kabat (Bernabei & Wachtel, PLLC)

D.C. Circuit, wrongful discharge decision

The D.C. Circuit issued an opinion today in an employment whistleblower case. The district court had dismissed the plaintiff's wrongful discharge in violation of public policy claim and intentional infliction of emotional distress (IIED) claim under Rule 12(b)(6), but the D.C. Circuit reinstated the latter claim.

The plaintiff reported what he believed to be violations of Nuclear Regulatory Commission regulations in the workplace. The employer then conducted what he alleged was a trumped-up internal investigation, upon which the employer (Washington Hospital Center) made false reports to the NRC in an attempt to get the NRC to investigate the plaintiff, not the employer! The district court dismissed both claims.

While the D.C. Circuit reinstated the IIED claim, on the grounds that a false report to the government is far more severe than an false report in an internal investigation (the situation that the court, in Kerrigan v. Britches of Georgetown (D.C. 1997) held insufficient for an IIED claim), the D.C. Circuit upheld the dismissal of the wrongful discharge claim on the grounds that the nuclear whistleblower statute, 42 U.S.C. 5851, provides an exclusive remedy. The court said that since the D.C. Court of Appeals, in Nolting v. National Capital Group, Inc., 621 A.2d 1387 (D.C. 1993), held that the wrongful discharge claim was not available where there was a statutory remedy, the plaintiff here was limited to a Section 5851 claim, and could not bring a common-law claim.

I am not certain that the D.C. Circuit reached the right result, since the Supreme Court had held that the nuclear whistleblower statute does not pre-empt an employee's state common-law wrongful discharge claim. English v. General Electric Co., 496 U.S. 72 (1992). I do not know whether this Supreme Court decision was argued by the plaintiff in this D.C. Circuit appeal, although it seems on point. (It seems that the plaintiff here was unable to comply with the tight filing deadlines for a Section 5851 claim, since he lost his USA work visa and had to leave the country, hence the need to try the common law claim).

Some excerpts follow:

http://pacer.cadc.uscourts.gov/docs/common/opinions/200801/06-7161a.pdf

 

No. 06-7161

FADY KASSEM, APPELLANT v. WASHINGTON HOSPITAL CENTER, APPELLEE

Appeal from the United States District Court for the District of Columbia (No. 05cv02352)

Brian W. Shaughnessy argued the cause and filed the briefs for appellant.

Keith J. Harrison argued the cause for appellee. With him on the brief was Daniel M. Creekman.

Before: ROGERS, GARLAND, and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

. . . Kassem, however, refused to cooperate with the investigation. "Recognizing that he himself as well as the Washington Hospital Center had a duty to inform the NRC accurately of the violations, [Kassem] declined to participate in [WHC's] cover-up of its regulatory infractions." Id. The "consequence[] of his refusal [was] the termination of his employment," id., which took place on August 15, 2003, id. ¶ 26. Ten days later, on August 25, WHC "made false statements about [Kassem] to the NRC with the intent of inducing the NRC to initiate disciplinary action against" him. Id. ¶ 48. In early January 2005, the NRC completed its own investigation and hearing. The Commission dismissed the charges against Kassem for insufficient evidence and initiated proceedings against WHC. Id. ¶ 27.

. . . Like the D.C. statute at issue in Nolting, ERA § 5851 provides a "specific and significant remedy for the party aggrieved by its violation." Nolting, 621 A.2d at 1390. Although Kassem insists that "he was not required" to pursue the § 5851 remedy, Appellant's Br. 13, Nolting holds that a plaintiff cannot "eschew the administrative remedy and instead obtain recovery against the employer on a tort theory of wrongful discharge under the narrow 'public policy' exception to the employment-at-will doctrine." Nolting, 621 A.2d at 1387.

Finally, Kassem asserts that the remedy provided by § 5851 cannot displace his wrongful discharge claim because it contains a "nonpreemption" provision. That provision states that § 5851 "may not be construed to expand, diminish, or otherwise affect any right otherwise available to an employee under Federal or State law to redress the employee's discharge. . . ." 42 U.S.C. § 5851(h). But the deficiency in Kassem's wrongful discharge claim is not that § 5851 preempts it, but that the District's own common law extinguishes it when the statute giving rise to the public policy at issue contains an alternative remedy -- as § 5851 does here. The district court was therefore correct in dismissing Kassem's wrongful discharge claim.

[IIED claim]

In granting WHC's motion to dismiss Kassem's IIED claim, the district court relied upon the D.C. Court of Appeals' decision in Kerrigan v. Britches of Georgetowne, Inc., 705 A.2d 624 (D.C. 1997). In Kerrigan, the plaintiff alleged that his employer "targeted him for a sexual harassment investigation, manufactured evidence against him in order to establish a false claim of sexual harassment, leaked information from the investigation to other employees, and unjustifiably demoted him to the position of store manager in order to promote a woman to his position." 705 A.2d at 628. Finding that the employer's actions fell within the category of "employer-employee conflicts [that] do not . . . rise to the level of outrageous conduct," the Court of Appeals held the plaintiff's allegations insufficient to state a claim of IIED. Id. (alteration in original) (internal quotation marks omitted).

But Kerrigan does not decide this case. Kerrigan did not involve a false report to government authorities. Rather, all of the allegations involved acts that took place within the workplace and that had no consequence other than an adverse employment action (the plaintiff's demotion). Kassem, by contrast, does not merely plead intra-workplace mistreatment. He further alleges that, after WHC fired him from his position, it intentionally filed a false charge against him with the NRC -- a charge that could have prevented him from working as a nuclear technologist and subjected him to criminal penalties. See Compl. ¶¶ 48, 50; see also 10 C.F.R. § 30.64 (providing that violations of § 30 are subject to criminal penalties). WHC did so knowing that the charge was false, and with the intention of "avoid[ing] NRC regulatory action against" the hospital itself. Compl. ¶ 51. There is nothing in Kerrigan that limits the applicability of Carter in such circumstances. Accordingly, Kassem's complaint cannot be dismissed at the pleading stage.

Alan Kabat (Bernabei & Wachtel, PLLC)