{"id":41,"date":"2019-12-09T18:16:15","date_gmt":"2019-12-09T18:16:15","guid":{"rendered":"https:\/\/www.fedbar.org\/labor-employment-law-section\/\/april-2018\/"},"modified":"2019-12-09T18:16:15","modified_gmt":"2019-12-09T18:16:15","slug":"april-2018","status":"publish","type":"page","link":"https:\/\/www.fedbar.org\/labor-employment-law-section\/le\/circuit-updates\/2018-2\/april-2018\/","title":{"rendered":"April 2018"},"content":{"rendered":"

Second Circuit<\/span><\/strong><\/p>\n

\nDuplan v. City of New York<\/em>, ___ F.3d ___, 2018 WL 1996613 (2d Cir. Apr. 30, 2018).<\/strong>\n<\/p>\n

Government employees cannot sue their employers under 42 U.S.C. \u00a7 1981 and may only do so under 42 U.S.C. \u00a7 1983. The U.S. Supreme Court reached this holding in Jett v. Dallas Indep. Sch. Dist<\/em>., 491 U.S. 701 (1989), and while the Ninth Circuit has since held that the Civil Rights Act of 1991 allows government employees to proceed under Section 1981, the other federal circuits continue to apply Jett<\/em>, and the Second Circuit joins those circuits in reaffirming the continued viability of Jett\u2019s<\/em> holding.<\/p>\n

\nIn addition, the Court of Appeals provides gloss under the \u201creasonably related\u201d doctrine that holds that retaliation claims that were not formally brought to the EEOC but which would have been reasonably related to the EEOC charge may form the basis for a subsequent federal lawsuit. However, in this case, the first EEOC charge did not lead to a federal lawsuit. Although plaintiff suffered retaliation following the first EEOC charge, that retaliation cannot predicate a subsequent federal action arising from a second EEOC charge. The Court states:<\/p>\n

No administrative or judicial proceeding is still pending, and the employee who suffers further discrimination or retaliation, like any other employee with a potential Title VII claims, therefore remains subject to that statute\u2019s administrative \texhaustion requirement. There is no reason to expand the judicially created waiver of the statutory exhaustion requirement to permit unexhausted retaliation claims to be held open indefinitely into the future, or litigated without going through a new administrative \tprocess, simply because, if the plaintiff had timely filed suit, policy considerations would have weighed in favor of waiving the exhaustion requirement so that the retaliation claim could have been joined with that hypothetical lawsuit.\n<\/p>\n

\nAlthough we have not previously had occasion to make clear that \u201creasonably related\u201d retaliation claims are excused from the exhaustion requirement only if they arise during the pendency of an EEOC investigation or a timely filed federal case, that outcome is \tconsistent with Title VII\u2019s statutory scheme and our existing case law.\n<\/p>\n

\nAs for the retaliation claims that plaintiff was able to properly plead in his Title VII action, he alleges plausible claims. The Court of Appeals reasons that \u201ca series of adverse actions occurred against a backdrop of continuing antagonism and frustration of his professional ambitions. Following his 2011 complaints, his supervisors collectively and persistently discouraged him from remaining at the Department by ostracizing him, giving him insufficient work, and making clear to him that his career would not advance further by denying him every promotion and raise. Those allegations establish a drumbeat of retaliatory animus from which a plausible inference of causation can be drawn\u201d.\n<\/p>\n


\n<\/span><\/strong><\/p>\n

Neary v. Gruenberg<\/em>, ___ Fed. Appx. ___, No. 17-2470-cv, 2018 WL 1612234 (2d Cir. Apr. 4, 2018) as amended (Apr. 5, 2018).<\/strong><\/p>\n

\nNeary was a 41 year old applicant for a position at the FDIC. He claims he was denied the position because of his age, in part, because 53 of the FDIC\u2019s 54 new hires were under the age of 40, as per a directive to focus on hiring recent college graduates. Apart from the fact that the directive was not yet in effect when Neary was denied the position, his constitutional claim fails for another reason: the government had a rational basis to focus on younger hires. As the Supreme Court has never held that age is a suspect class, the government can avoid liability upon a showing that its age-related decision making has a rational basis. The government\u2019s proffered justification for the program is \u201cto replenish a workforce containing an ever growing number of Federal employees near[ing] retirement age with students and recent graduates.\u201d Neary may be correct that the government could have adopted a different selection process to identify qualified applicants who would likely become long\u2010serving federal employees, and it may be true that the selection criteria the program used failed to account for the work preferences of Millennials, but that is not the relevant inquiry. \u201c[W]here rationality is the test,\u201d the government does not violate equal protection \u201cmerely because the classifications made by its laws are imperfect.\u201d<\/p>\n

\nSubmitted by:<\/strong>
Stephen Bergstein<\/strong><\/a>, Esq.
\nBergstein & Ullrich, LLP
\n5 Paradies Lane
\nNew Paltz, New York 12561
\n(845) 419-2250
www.TBULaw.com<\/a> \u00a0
www.secondcircuitcivilrights.blogspot.com<\/a>\u00a0\u00a0\n<\/p>\n

\nFourth Circuit<\/span><\/strong><\/p>\n

<\/strong><\/p>\n


\nBakery & Confectionary Union & Indus. Int\u2019l Pension Fund v. Just Born II, Inc<\/em>., ___ F.3d ___, 2018 WL 1956009 (4th Cir. Apr. 26, 2018).<\/strong>\n<\/p>\n

\n<\/p>

Pursuant to a collective bargaining agreement with a local union, an employer was required to contribute to a pension fund governed by ERISA. While the collective bargaining agreement was in effect, actuaries certified the fund to be in critical status, as defined by 29 U.S.C. \u00a7 1085, and the plan sponsor developed a rehabilitation plan. The employer contributed to the pension fund pursuant to the rehabilitation plan for a period of time.<\/p>\n

\nDuring the renegotiation of the collective bargaining agreement, the employer sought to remove the requirement that it contribute to the fund for newly hired employees. The union would not agree, and the employer declared a good-faith impasse. The employer then unilaterally imposed its last offer to the union and continued payment under the revised schedule for existing employees only.\n<\/p>\n

\nThe pension fund sued the employer seeking to compel payment under the rehabilitation schedule for all employees pursuant to 29 U.S.C. \u00a7 1085(e)(3)(C)(ii) (the \u201cProvision\u201d). The district court entered judgment on the pleadings for the pension fund and ordered the employer to pay the delinquent contributions. The Fourth Circuit affirmed.\n<\/p>\n

\nThe Provision is part of the Pension Protection Act of 2006, which was designed to help underfunded multiemployer pension plans recover. The Provision states that if a collective bargaining agreement expires while a rehabilitation plan is in critical status, and the bargaining parties to the collective bargaining agreement fail to adopt a contribution schedule consistent with the rehabilitation plan, then the contribution schedule under the expired collective bargaining agreement shall be implemented.\n<\/p>\n

\nThe employer argued on appeal that it was not a \u201cbargaining party\u201d under the Provision with respect to the new employees since the collective bargaining agreement had expired and a new agreement had not been reached.\n<\/p>\n

\nThe Fourth Circuit concluded that the employer was a \u201cbargaining party\u201d required to contribute to the pension fund under the rehabilitation schedule for all employees. The Court explained that the Provision only applies after a collective bargaining agreement expires, such that the expiration of the collective bargaining agreement in this case could not alter the employer\u2019s status as a bargaining party. The Court further explained that the employer conceded that it was a bargaining party to the collective bargaining agreement prior to its expiration. The Court found that the remaining criteria under the Provision also were met: The collective bargaining agreement expired while the fund was in critical status, and the bargaining parties failed to adopt a contribution schedule. The Court concluded, therefore, that the employer was required to make contributions according to the schedule in effect at the time the collective bargaining agreement expired.\n<\/p>\n

\nThe Court noted that its holding did not limit the employer\u2019s ability to withdraw from the ERISA-qualified plan, as permitted under other ERISA provisions. However, where, as here, the employer had not exercised its right to withdraw, the Provision applied and required contributions under the schedule in effect at the time the collective bargaining agreement expired. The Court concluded that to hold otherwise would permit the employer to make an end run around the critical-status contributions required by the Provision and the withdrawal penalty under 29 U.S.C. \u00a7 1381.
\nThe Fourth Circuit also agreed with the district court that the employer\u2019s affirmative defenses were subject to the particularity requirement of Federal Rule of Civil Procedure 9(b), and that the employer\u2019s defenses failed to meet that requirement. The gravamen of the defenses was fraudulent or intentional misrepresentation that the pension fund was in \u201ccritical status.\u201d The Court looked beyond each defense\u2019s label and determined that each defense sounded in fraud. Therefore, the employer\u2019s defenses pleaded as fraudulent or intentional inducement, fraudulent or intentional material misrepresentations, unjust enrichment, unclean hands, and legally defective placement into critical status had to be pleaded with particularity.\n<\/p>\n\n

Submitted by:<\/strong>
Paul Sun<\/strong><\/a>
Emily Erixson<\/strong><\/a>
\nELLIS & WINTERS LLP
Paul.sun@elliswinters.com<\/a>
\nPost Office Box 33550
\nRaleigh, North Carolina 27636
\nTelephone: 919.865-7000
www.elliswinters.com<\/a> <\/p>\n

\nFifth Circuit<\/span><\/strong><\/p>\n

\nHerster v. Board of Supervisors of LSU<\/em>, 887 F.3d 177 (5th Cir. 2018).<\/strong>\n<\/p>\n

Plaintiffs Margaret Herster (\u201cHerster\u201d) and Scott Sullivan (\u201cSullivan\u201d) were employed by Louisiana State University (\u201cLSU\u201d). Herster, a part time instructor of digital art and later a full time professional in residence, brought the principal claims for Title VII gender discrimination in her pay and retaliation under the Louisiana whistleblower statute. Her husband, a law professor, brought a claim for loss of consortium. The Fifth Circuit considered three issues on appeal: (1) whether the district court properly granted LSU\u2019s motion for judgment as a matter of law for Herster\u2019s Title VII gender discrimination in pay claim; (2) whether the district court properly granted LSU\u2019s motion for judgment as a matter of law for Herster\u2019s Louisiana whistleblower statute claim; and (3) whether the district court properly granted LSU\u2019s motion for summary judgment for Herster\u2019s Louisiana state law spoliation. This brief addresses the first two issues on appeal.<\/p>\n

\nThe Court affirmed the trial court holding that Herster could not prevail on her Title VII gender discrimination in pay claim, because she did not show that she was paid less than a proffered comparator, not in her protected class, for work requiring substantially the same responsibility. Herster proffered three comparitors whose job responsibilities and qualifications differed from hers. Two of her comparitors were assistant professors requiring research as a condition of employment, while Herster\u2019s position did not require research. The other comparator had greater educational qualifications and a larger course load than Herster. To determine whether a comparator is similarly situated, the Court considered factors including job responsibility, experience, and qualifications and found that LSU negated one of the crucial elements in Herster\u2019s prima facie case\u201d of discrimination by showing a significant difference in job responsibilities.\n<\/p>\n

\nThe Court then addressed whether Herster provided direct evidence of discrimination. Herster proffered evidence that the male Director of the School of Art called Herster a \u201ctrailing spouse\u201d, \u201ca princess\u201d, and stated that he thought she was \u201cgoing to have children and be happy\u201d. The Court ruled that the trailing spouse term does not refer to gender and Parker\u2019s comments, at most, implied that gender was a factor in the decision concerning Herster\u2019s compensation. The Court also held that Parker\u2019s comments were stray remarks that failed to provide direct evidence of discrimination for Herster\u2019s gender discrimination in pay claim.\n<\/p>\n

\nThe Court then addressed Herster\u2019s Louisiana whistleblower statute claim, restating the elements of a violation: (1) LSU must have violated Louisiana law through a prohibited workplace practice; (2) Herster must have advised LSU of the violation; (3) Herster threatened to disclose or disclosed the prohibited practice; and (4) Herster was terminated as a result of her threat to disclose or because of the disclosure of the prohibited practice. Herster believed that the School of Art was imposing illegal course fees on students and advised LSU of her belief of the violation. An internal audit ensued and determined that the course fees were not approved by the legislature. The Court, however, determined that the term \u201cfee\u201d was not defined in the Louisiana Constitution and that Herster failed to show that LSU actually violated the Louisiana Constitution and that there was no actual violation of Louisiana law. Because the first element was not met \u2013 there was no showing of a violation, the whistleblower statute claim also failed.\n<\/p>\n\n

Submitted by:<\/strong>
Susan Cone Kilgore <\/strong><\/a>
\nLesser Law Firm
\n9800 Lorene Lee
\nSan Antonio, Texas 78216
\nPhone: 210-904-8477
\nFax: 210-504-4486
susan@leeserlaw.com<\/a> \u00a0<\/p>\n

\nSixth Circuit<\/span><\/strong><\/p>\n

\nEEOC v. R.G. &. G.R. Harris Funeral Homes, Inc<\/em>., 884 F.3d 560 (6th Cir. 2018).<\/strong>\n<\/p>\n

Aimee Stephens was terminated from her employment two weeks after she notified her employer that she was undergoing a gender transition from male to female and intended to begin dressing as a female. Her employer terminated Ms. Stephens because it disagreed with her decision to transition. The EEOC filed a lawsuit on Ms. Stephens\u2019 behalf, contending that her termination violated Title VII of the Civil Rights Act of 1964. Judge Sean F. Cox from the U.S. District Court for the Eastern District of Michigan ruled that transgender status is not a protected class under Title VII, but because the EEOC complaint also stated that Ms. Stephens was fired because she did not conform to sex- or gender-based preferences, expectations or stereotypes, Sixth Circuit precedent establishes that the EEOC properly stated a claim for relief under Title VII.<\/p>\n

\nOn appeal, the three-judge panel reversed Judge Cox\u2019s ruling that transgender status is not a protected class under Title VII, finding that discrimination on the basis of transgender and transitioning status is discrimination on the basis of sex. The appeals court also found that the Funeral Home did not qualify for the ministerial exception to Title VII because its religious exercise would not be substantially burdened by continuing to employ Ms. Stephens without discriminating against her on the basis of sex stereotypes, the EEOC established that it has a compelling interest in ensuring the Funeral Home complies with Title VII and the enforcement of Title VII is the least restrictive way to achieve that compelling interest.\n<\/p>\n


\nSubmitted by:<\/strong>
Jacob M. Hogg<\/a>
\nMiller, Canfield, Paddock & Stone, P.L.C.
\n150 W. Jefferson, Suite 2500
\nDetroit, MI 48226
hogg@millercanfield.com<\/a> \u00a0<\/p>\n

\nSeventh Circuit<\/span><\/strong><\/p>\n

\nSampra v. United States Dep\u2019t of Transp<\/em>., 888 F.3d 330 (7th Cir. 2018).<\/strong>\n<\/p>\n\n

\nThe plaintiff sued her employer for interference with Family and Medical Leave Act rights by reassigning her to a different position after she returned from childbirth leave. The district court had granted summary judgment to the employer on the merits. However, the Court of Appeals ruled that the plaintiff failed to file her complaint within the applicable two year statute of limitations under the FMLA, and she had not shown evidence that the Department willfully violated her FMLA rights in order to extend the statute of limitations to three years. In so holding, the Seventh Circuit agreed with other circuits in holding that the willfulness standard for Fair Labor Standards Act claims, expressed in McLaughlin v. Richland Shoes Co., 486 U.S. 128 (1988) applies to the FMLA as well. Under that standard, the plaintiff had failed to show that the supervisor either knew his conduct would violate the FMLA or showed reckless disregard.\n<\/p>\n

\nKleber v. CareFusion Corp<\/em>., ___ F.3d ___, 2018 WL 1959662 (7th Cir. Apr. 26, 2018).<\/strong><\/p>\n

<\/strong><\/p>\n

The defendant had posted a job opening for a lawyer with \u201c3 to 7 years (no more than 7 years) of relevant legal experience.\u201d The plaintiff, a 58 year old with extensive experience, applied for the position, but was not selected for an interview. The position was filled with a 29-year old applicant. The plaintiff filed a charge with the EEOC and then sued the prospective employer. The district court dismissed the claim on a Rule 12(b)(6) motion.<\/p>\n

\nReversing the dismissal, the Seventh Circuit held that the disparate impact provision of the Age Discrimination in Employment Act of 1967 protects both current employees and outside job applicants. The court reasoned that though the applicable section of the ADEA does not explicitly say it protects outside job applicants, protection of both categories of individuals was a better reading of the statutory text and more consistent with the purpose of the ADEA and case law interpreting it since its enactment.<\/p>\n

\n
\nSubmitted by:<\/strong>
\nCate Lindemann
\nLittler Mendelson P.C.
\n321 North Clark Street, Suite 1000
\nChicago, IL 60654
\n(312) 795-3283
CLindemann@littler.com<\/a> \u00a0<\/p>\n

Ninth Circuit<\/span><\/strong><\/p>\n

\nRizo v. Yovino, 887 F.3d 453<\/em> (9th Cir. 2018) (en banc).<\/strong>\n<\/p>\n\n

Plaintiff, a math consultant with the Fresno County Office of Education, brought an Equal Pay Act claim against the County after learning that her starting salary was lower than that of male math consultants. The County set her initial salary in accordance with its standard procedure of adding five percent to an individual\u2019s prior salary. As a result, plaintiff\u2019s salary with Fresno County was based entirely on her prior salary as a secondary school teacher in Maricopa County, Arizona.<\/p>\n

\nThe County argued that its use of prior salary alone fell within the Equal Pay Act\u2019s catchall exception, which permits wage differentials for equal work based on \u201cany other factor other than sex.\u201d 29 U.S.C. \u00a7 206(d)(1). A three-judge panel of the Ninth Circuit initially determined that the case was controlled by Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982), which allowed consideration of prior salary as a \u201cfactor other than sex,\u201d and held that use of prior salary alone was permissible as long as use of that factor \u201cwas reasonable and effectuated some business policy.\u201d\n<\/p>\n

\nIn an opinion authored by Judge Reinhardt published after his death, an en banc panel of the Ninth Circuit overruled Kouba and held that \u201cany other factor other than sex\u201d is limited to legitimate, job-related factors such as a prospective employee\u2019s experience, educational background, ability, or prior job performance. Because prior salary is not job-related, whether considered alone or with other factors, it cannot be used to account for disparate pay for equal work. In so concluding, the Court relied on the broad remedial intent and purpose of the Equal Pay Act, reasoning that Congress could not possibly have meant for legislation intended to eliminate long-standing sex-based wage disparities to include an exception for prior salaries, which would commonly reflect those disparities. The Court also construed the text of the catchall exception\u2014\u201cany other factor other than sex\u201d\u2014as consistent with the job-related qualities of the statute\u2019s three other permissible bases for wage differentials: seniority, merit, and productivity. The Ninth Circuit expressly declined to follow the approach adopted by some other circuits, which allow for consideration of prior salary when combined with other, job-related factors while prohibiting wage differentials on the basis of prior salary alone. The Court noted, however, that it was announcing a \u201cgeneral rule,\u201d and did not endeavor to resolve that rule\u2019s application under all circumstances, such as whether and under what circumstances prior salary permissibly may play a role in individualized salary negotiations.\n<\/p>\n

\nFour concurring judges expressed their view that the majority opinion went too far in holding that any consideration of prior salary is \u201cimpermissible\u201d under the Equal Pay Act. Those judges would have found, consistent with some other circuits, that prior salary, when combined with other valid job-related factors such as education or training, can provide a lawful benchmark for starting salary in appropriate cases\n<\/p>\n

\nSubmitted by:<\/strong>
Andrew Narus<\/a>
\nBarran Liebman LLP
\n601 SW 2nd Avenue, Suite 2300
\nPortland, OR 97204
\n(503) 276-2104
anarus@barran.com<\/a> \u00a0<\/p>\n

\nD.C. Circuit<\/span><\/strong><\/p>\n

\nOncor Elec. Delivery Co. v. NLRB,<\/em> 887 F.3d 488 (D.C. Cir. 2018).<\/strong>\n<\/p>\n

In Oncor Electric Delivery Co. v. National Labor Relations Board<\/em>, the D.C. Circuit reviewed the circumstances under which an employee\u2019s criticism of the employer qualifies as protected, concerted activity under the National Labor Relations Act (\u201cNLRA\u201d), and remanded the case to the National Labor Relations Board (\u201cNLRB\u201d) for additional findings.<\/p>\n

\nIn the case, a union representative had threatened his employer that if collective bargaining negotiations were not favorably resolved, he would testify the next day before the Texas senate regarding \u201csmart\u201d electrical meters installed by the employer. The employee ultimately did testify and criticized the meters, claiming that they caused fires in customers\u2019 homes. After an investigation, the employer concluded that the employee\u2019s testimony had been false and terminated his employment.\n<\/p>\n

\nUnder the NLRA, employees are protected when they engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and under some circumstances those activities can include appeals to third parties outside of the employment relationship. This protection, however, is balanced against the right of employers to dismiss employees for cause, including disloyalty. Disparaging statements enjoy the NLRA\u2019s protection only where (1) the communication indicates it is related to an ongoing labor dispute, and (2) the communication is not so disloyal, reckless, or maliciously untrue as to lose protection.
\nThe D.C. Circuit remanded the case to the NLRB because it was not clear from the record what facts the NLRB had relied upon to find the first prong of the test \u2013 connection to a labor dispute \u2013 satisfied. The rationale for this test is that if a third party listener knows the statement is a partisan one designed to advance a labor cause, the listener can use that context to give appropriate weight to the statement. The court noted that while the employee had indicated that his testimony was on behalf of a union, there was no public disclosure of the ongoing collective bargaining negotiation. In addition, the content of the employee\u2019s testimony itself did not bear a clear nexus to the subject of the labor dispute as smart meters were not at issue in the collective bargaining negotiations.\n<\/p>\n

Submitted by:
<\/strong>Jack Blum<\/a>
<\/strong>Paley Rothman
\n4800 Hampden Lane 6th Floor
\nBethesda, MD 20814
\n301-968-3415
<\/strong>jblum@paleyrothman.com<\/strong><\/a> <\/strong><\/p>\n

<\/strong><\/strong><\/p>\n

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