{"id":42,"date":"2019-12-09T18:16:18","date_gmt":"2019-12-09T18:16:18","guid":{"rendered":"https:\/\/www.fedbar.org\/labor-employment-law-section\/\/august-2018\/"},"modified":"2019-12-09T18:16:18","modified_gmt":"2019-12-09T18:16:18","slug":"august-2018","status":"publish","type":"page","link":"https:\/\/www.fedbar.org\/labor-employment-law-section\/le\/circuit-updates\/2018-2\/august-2018\/","title":{"rendered":"August 2018"},"content":{"rendered":"

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

\n
\nCatzin v. Thank You & Good Luck<\/em>, 899 F.3d 77 (2d Cir. 2018).<\/strong>\n<\/p>\n

District court abused its discretion in declining jurisdiction without providing the plaintiffs an opportunity to be heard, after plaintiffs opted to drop their Fair Labor Standards Act claims in order to solely pursue their state-law wage and hour claims. In abandoning the FLSA claims, plaintiffs\u2019 attorneys determined that plaintiffs would get the same relief under the state labor law claims. A week before trial started, the district court, noting the pre-trial filings focused solely on the state law claims and that plaintiffs had abandoned their federal claims, sua sponte decided against exercising supplemental jurisdiction over the state law claims, effectively sending the case over to state court. The district court \u201cconcluded that while plaintiffs\u2019 \u2018motives are not entirely clear, it appears to the Court that plaintiffs may have strategically asserted FLSA claims for the purpose of manufacturing [federal] jurisdiction, when they truly intended to litigate only claims under the New York Labor Law.'\u201d The Court of Appeals reverses, stating that the district court was required to provide plaintiffs\u2019 attorneys an opportunity to be heard on this ruling, it is not \u201cunmistakably clear\u201d that the district court lacked jurisdiction over the case, and courts are supposed to weigh the factors under the supplemental jurisdiction statute, 28 USC \u00a7 1367 before declining federal jurisdiction. The Court of Appeals notes it has \u201cupheld the exercise of supplemental jurisdiction even when all federal-law claims were eliminated prior to trial, for example, in long-pending cases presenting no novel issues of state law where \u2018discovery had been completed, dispositive motions had been submitted, and the case would soon be ready for trial.'\u201d The trial court erred in not weighing the factors under 28 USC \u00a7 1367.<\/p>\n

\n
\nHealthBridge Management v. National Labor Relations Board<\/em>, 798 F.3d 1059 (2d Cir. 2018).<\/strong><\/p>\n

\nThe Second Circuit upholds a ruling from the National Labor Relations Board that found that a health services company violated the labor laws in hiring employees without seniority and other union protections after they worked for a management company affiliated with the employer, bypassing the CBA. The Court notes that \u201cIt is settled law in this circuit that an employer may not \u2018avoid the obligations of a collective bargaining agreement through a sham transaction or technical change in operations\u2019 that amounts to a \u2018disguised continuance.'\u201d In addition, \u201cother circuits have recognized that temporary shutdowns in business operations do not terminate unionized employees\u2019 rights under a CBA.\u201d Here, \u201cHealthBridge effected its scheme by temporarily loaning its employees to a third-party subcontractor.\u201d \u201cThe dominant (if not sole) purpose of HealthBridge\u2019s use of the subcontractor was to disguise what amounts to a quasi alter-ego scheme.\u201d<\/p>\n

Submitted 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<\/p>\n

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

\n
\nHenderson ex rel. NLRB v. Bluefield Hospital Co<\/em>., ___F.3d___, 2018 WL 4086864 (4th Cir. Aug. 28, 2018).<\/strong>\n<\/p>\n

A union of registered nurses at two affiliated hospitals in West Virginia filed unfair labor practice charges with the National Labor Relations Board after bargaining broke down between the union and the hospitals. The union alleged that the hospitals had engaged in unlawful surface bargaining, and therefore refused to bargain collectively and in good faith.\n<\/p>\n

\nThe Board issued an administrative complaint against the hospitals, and petitioned the district court for a preliminary injunction pursuant to \u00a7 10(j) of the National Labor Relations Act, 29 U.S.C. \u00a7 160(j), to require the hospitals to bargain in good faith with the union during the pendency of the administrative proceedings. The statute allows interim injunctive relief only when reasonably necessary to preserve the ultimate remedial power of the Board. The traditional four-part test for injunctive relief applies, and the Board must show that: (1) it is likely to succeed on the merits; (2) irreparable harm is likely absent injunctive relief; (3) the balance of equities tips in its favor; and (4) an injunction is in the public interest. The district court denied the petition, concluding that the Board failed to demonstrate a likelihood of irreparable injury to the Board\u2019s ability to remedy the alleged unfair labor practices absent an injunction.\n<\/p>\n

\nOn appeal, the Board argued that the district court erred by analyzing only the irreparable harm prong of the injunctive relief standard and by refusing to infer irreparable harm from the nature of the alleged violations, and that the district court committed clear error in its fact findings that there was not substantial erosion of employee support for the union. Over Chief Judge Gregory\u2019s dissent, the Fourth Circuit affirmed.\n<\/p>\n

\nThe Fourth Circuit rejected the Board\u2019s argument that the district court erred by considering only irreparable harm; because all four factors must be present to grant preliminary injunctive relief, the absence of any factor would be sufficient to deny relief. The Court acknowledged that district courts must apply these factors in light of the underlying purpose of \u00a7 10(j)\u2014preserving the Board\u2019s remedial power pending the outcome of its administrative proceedings\u2014but rejected the Board\u2019s argument that giving effect to \u00a7 10(j) required the district court to mechanically consider all four factors when one was clearly absent.\n<\/p>\n

\nThe Fourth Circuit next concluded that, contrary to the Board\u2019s position, irreparable harm is not inherent in bad faith bargaining cases. The Board contended that, absent an injunction, the union would necessarily lose legitimacy in the eyes of employees, employees would be deprived of the non-monetary benefits of collective bargaining until the administrative complaint was resolved, and the lack of good faith bargaining would cause public harm by threatening the core purpose of the NLRA. The Court concluded that it could not assume that erosion of union support was inevitable, or that if an injunction issued, the union would reach a collective bargaining agreement before the complaint was resolved. The Fourth Circuit also rejected the Board\u2019s argument that the absence of collective bargaining itself causes irreparable harm, reasoning that the Board\u2019s argument would eviscerate the irreparable harm requirement whenever the Board established a likelihood of success on a bad faith bargaining complaint.\n<\/p>\n

\nFinally, the Fourth Circuit ruled that the district court did not clearly err by finding that there was not evidence that employee support would decline to the point that the union would be unable to negotiate effectively. While there was some evidence that registered nurses were frustrated with the progress of the union, there was no evidence that nurses were leaving due to the alleged bad faith bargaining.<\/p>\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

\n
\nMiraglia v. Board of Supervisors of the Louisiana State Museum<\/em>, ___F.3d___, 2018 WL 4042218 (5th Cir., Aug. 24, 2018).<\/strong><\/p>\n

\nMitchell Miraglia is a quadriplegic suffering from cerebral palsy and dependent on a motorized wheelchair. In 2015, he visited the Lower Pontalba Building in New Orleans\u2019 French Quarter, a historic property listed on the National Register of Historic Places and owned by the Louisiana State Museum. Upon arrival, he determined that he was unable to access the Lower Pontalba Building\u2019s retail shops due to the structure\u2019s French doors being potentially too narrow for his wheelchair when only one leaf was opened, and ramps that were too steep. Miraglia did not attempt to enter the stores and left.\n<\/p>\n

\nMirgalia subsequently sued the Museum\u2019s Board of Supervisors as well as its Deputy Assistant Secretary, alleging violations of Title II of the American with Disabilities Act (\u201cADA\u201d) and the Rehabilitation (\u201cRA\u201d), based on the Museum\u2019s alleged failure to rectify architectural features that barred his entry to the Lower Pontalba Building\u2019s retail shops. The parties did not dispute that the entrances to the retail shops were inaccessible to Miraglia, but disputed what accommodations, if any, the Museum should make. The Museum admitted it had previously done \u201cnothing\u201d to check for ADA compliance.\n<\/p>\n

\nExperts retained by both sides to opine on appropriate accommodations ultimately agreed that five-foot portable ramps for each store would suffice without unduly impairing the historic nature of the building. They also agreed that installing buzzers at each door would reasonably accommodate the narrow door width by alerting employees to open the second leaf of each pair of French doors for patrons in need of a wider entry. But, the parties were unable reach a settlement. On the eve of a bench trial, the Museum purchased the ramps, buzzers, and buzzer-related signage, and at the beginning of trial, submitted evidence of the purchase and its intent to implement the equipment to the district court. Following a short bench trial, the district court dismissed Miraglia\u2019s claims for declaratory and injunctive relief as moot, based on the Museum\u2019s purchase of the ramps and buzzers and intent to implement, but retained jurisdiction to enforce in the event of default, and awarded Miraglia $500 in damages for emotional injury. It also awarded Miraglia just over $30,000 in attorney\u2019s fees. Both sides appealed.\n<\/p>\n

\nOn appeal, the Fifth Circuit dismissed Miraglia\u2019s appeal as moot, finding that the Museum\u2019s lease requirement of its tenants to comply with applicable laws and its assurances of its own continued compliance with its representations to the district court at trial was sufficient to moot the plaintiff\u2019s request for declaratory and injunctive relief, and that the voluntary cessation doctrine did not apply to revive the claims.\n<\/p>\n

\nAs to the district court\u2019s award of monetary damages, the Fifth Circuit reversed the award, observing that intent is a necessary element of a monetary damages award under the ADA and RA and finding that Miraglia had failed to prove that the Museum\u2019s violations of either statute were intentional. In this regard, the Court opined that intent requires that the defendant at least have actual notice of a violation before intent will be imputed, but stopped short of delineating what is specifically required beyond actual notice. The Court held that Miraglia failed to identify any evidence in the record of actual notice, and that merely showing that the Museum failed to check its compliance or otherwise lacked knowledge and understanding about compliance requirements was not sufficient to show intent.\n<\/p>\n

\nFinally, the Fifth Circuit affirmed the district court\u2019s award of attorney\u2019s fees, finding that the district court\u2019s retention of jurisdiction to ensure compliance made the Musuem\u2019s modifications sufficiently judicially-sanctioned to make Miraglia the prevailing party and thus entitled to attorney\u2019s fees.\n<\/p>\n\n


\nProvidence Behavioral Health, et al. v. Grant Road Public Utility District, et al<\/em>., ___F.3d___, 2018 WL 4099682 (5th Cir., Aug. 28, 2018).<\/strong> <\/p>\n

The plaintiffs intended to construct a for-profit mental health treatment facility, providing outpatient and inpatient services, on property located just outside the defendant utility district\u2019s district boundaries. The plaintiffs sought annexation of the property by the district for purposes of providing utility services to the property. The district\u2019s Board initially granted preliminary approval, but various financial and other troubles caused the plaintiffs to subsequently delay and terminate the annexation process. When the plaintiffs later re-applied with slightly modified plans, the district\u2019s Board denied approval. The Board did not give specific reasons for denying annexation, but at trial, Board members cited revenue and financial concerns, as such a facility would contribute relatively less revenue to the district\u2019s coffers. The plaintiffs filed suit, alleging that the district\u2019s decision denying annexation amounted to discrimination under the Americans with Disability Act (\u201cADA\u201d), Fair Housing Act (\u201cFHA\u201d), and Texas Fair Housing Act (\u201cTFHA\u201d), and failure to make reasonable accommodations under the ADA and FHA. In support, the plaintiffs pointed to questions asked by the Board during the plaintiffs\u2019 presentation about the individuals anticipated to receive treatment at the plaintiffs\u2019 facility, and possible community pressure driven by a local real estate developer urging the district to deny annexation. The plaintiffs further alleged that the community had raised concerns that the facility would create a negative public perception and decrease property values, and cited the district\u2019s counsel as indicating that the Board was sensitive to public scrutiny given a recent contested election and upcoming bond election.<\/p>\n

\nFollowing a bench trial, the district court entered judgment in favor of the utility district, finding that the plaintiffs had failed to prove their ADA, FHA, and TFHA claims, and denying the plaintiffs\u2019 request for injunctive relief. The plaintiffs appealed.\n<\/p>\n

\nOn appeal, the Fifth Circuit found that the district\u2019s Board did not enjoy Eleventh Amendment sovereign immunity because it is a local governmental entity, not an instrumentality of the State of Texas; but, applying a clearly erroneous standard to the district court\u2019s findings of fact, affirmed the district court\u2019s ruling that the plaintiffs had failed to carry their burden of showing intentional discrimination under the ADA, FHA, and TFHA, specifically that any such discrimination was \u201cby reason of\u201d the disabilities of the plaintiffs\u2019 potential patients. In this regard, the Fifth Circuit noted the testimony of Board members regarding the tax abatements potentially available to the facility, and thus the facility\u2019s limited ability to add to the value of the utility district, as well as the demand on the current system and the plaintiffs\u2019 relative lack of experience with developing land. Notwithstanding the plaintiffs\u2019 submission of evidence regarding community pressure, politics, and the Board\u2019s questioning, the Fifth Circuit found that the district court did not commit reversible error in dismissing the intentional discrimination claims.\n<\/p>\n

\nRegarding the failure to accommodate claims, the Fifth Circuit likewise affirmed the district court\u2019s dismissal of the claims, finding that the provision of water, drainage, and septic services had no relation to accommodating the expected disabilities of the plaintiffs\u2019 patients because the need for such services is not unique to the fact that the facility would be a psychiatric facility. In other words, the denial of annexation and services did not create a situation where disabled individuals had an unequal ability to use and enjoy the facility compared to individuals who were not disabled. Thus, the denial of services did not amount to a reasonable accommodation claim.\n<\/p>\n

\nFinally, the Fifth Circuit affirmed the district court\u2019s denial of attorney\u2019s fees to the utility district, finding that the plaintiffs\u2019 lawsuit was not frivolous, unreasonable, or groundless, and that the district court had not otherwise abused its discretion in denying the defendant\u2019s request for fees.\n<\/p>\n

\nSubmitted by:<\/strong>

\nLaura E Carlisle<\/strong>
\nBaker, Donelson, Bearman,
\nCaldwell & Berkowitz, PC
\n201 St. Charles Avenue, Suite 3600
\nNew Orleans, Louisiana 70170
\nDirect: (504) 566-8643
\nEmail: lcarlisle@bakerdonelson.com<\/a> \u00a0<\/p>\n

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

\n<\/p>

\n
\nCooley, et al. v. HMR of Alabama, Inc<\/em>., ___Fed. Appx. ___, 2018 WL 4232041 (11th Cir., Sept. 6, 2018).<\/strong><\/p>\n

\nThe case of Cooley, et al. v. HMR of Alabama, Inc<\/em>. involved 44 employees\u2019 claims against their employer for unpaid overtime wages. The Plaintiffs worked for the Defendant at its Robert L. Howard Veterans Home. Among the Plaintiffs were 33 certified nursing assistants (\u201cCNA\u2019s\u201d), three licensed practical nurses (\u201cLPN\u2019s\u201d), and 8 employees who held dual positions such as \u201cCNA\/Concierge\u201d and \u201cDriver\/Driver Coordinator\u201d. The Plaintiffs alleged that over the last six years, they had worked overtime and had regularly worked through their meal breaks, without being properly compensated, despite the Defendant\u2019s policy of automatically deducting 30 minutes from their pay for those breaks. The Plaintiffs filed a joint complaint alleging unpaid overtime wages pursuant to the FLSA, along with quasi-contract\/quantum meruit state law claims. The state law claims were ultimately dismissed and the dismissal was upheld by the Eleventh Circuit due to procedural\/pleading deficiencies.\n<\/p>\n

\nThe Defendant moved to dismiss the Plaintiffs\u2019 initial complaint on the grounds that it failed to state a cause of action. The district court granted the Defendant\u2019s motion. In dismissing the FLSA claims, the court found that the Plaintiffs had not sufficiently shown that they worked over 40 hours in any work week, and additionally, had not sufficiently identified the type of work performed during the subject meal periods which they claimed to be compensable. Thereafter, the Plaintiffs filed an amended complaint, along with an itemized list of over 2,000 weeks for which they claimed overtime. In the amended complaint, the Plaintiffs specified that during the subject meal periods, they performed work by \u201ccaring for patient needs\u201d and \u201ctending to patients.\u201d Additionally, they alleged that the Defendant\u2019s policy was to automatically deduct 30 minutes from their pay for meal breaks regardless of whether they actually took those breaks. Despite those amendments, the district court dismissed the amended complaint with prejudice, finding that the employees failed to adequately identify the type of work performed during their meal breaks. The Plaintiffs appealed.\n<\/p>\n

\nThe Eleventh Circuit reversed, holding that the Plaintiffs did adequately identify the type of work performed during meal breaks for purposes of their FLSA claims. The Eleventh Circuit noted that the Plaintiffs provided each employee\u2019s specific job title, a list of weeks which each employee claimed to have worked overtime, and identified that during meal periods each employee worked by \u201ccaring for patient needs\u201d and \u201ctending to patients.\u201d According to the court, that was sufficient to \u201cplausibly suggest\u201d that they were entitled to damages under the FLSA, and because the amended complaint adequately stated those claims, the district court erred in dismissing the FLSA count.\n<\/p>\n

\nIn making its conclusion, the Eleventh Circuit was not persuaded by either of the Defendant\u2019s arguments. First, the Defendant claimed that the Plaintiffs\u2019 general descriptions of the work performed made it impossible for the Defendant to determine whether such work was compensable. The Eleventh Circuit reasoned that because the FLSA makes compensable any work that is either a \u201cprincipal activity\u201d or \u201cintegral and indispensable to the principal activities that an employee is employed to perform,\u201d it was reasonable to assume that caring for patients and tending to patient needs during a workday was a compensable principal activity of a nursing home employee, especially when such employee is employed as a nurse. Second, the Defendant argued that the general job descriptions were insufficient to state a claim under Bell Atl. Corp. v. Twombly<\/em>, 550 U.S. 544 (2007). The Eleventh Circuit stated that although Twombly<\/em> requires a complaint to include more than simple labels and conclusions, it specifically does not require \u201ca detailed description of the exact acts each plaintiff performed during meal times.\u201d Accordingly, the court held that the Plaintiffs\u2019 allegations along with their specific job titles were sufficient to give the Defendant fair notice of the Plaintiffs\u2019 FLSA claims.\n<\/p>\n\n

\n
\nMorgan v. Kalka Baer, LLC<\/em>, ___Fed. Appx. ___, 2018 WL 4275867 (11th Cir., Sept. 7, 2018).<\/strong><\/p>\n

\nThe case of Morgan v. Kalka Baer, LLC<\/em>, involved pro se Plaintiff\u2019s, Melanie Morgan, claims for race discrimination and retaliation under 42 U.S.C. \u00a7 1981 and unpaid overtime and retaliation claims under 29 U.S.C. \u00a7\u00a7 207(a)(1) and 215(a)(3). The Plaintiff began working for the Defendant-law firm as a case clerk in September of 2013. The law firm was comprised of two attorney-partners and five staff members. Two of the staff members, including the Plaintiff, were African American. In February of 2014, the partners told the staff members that they would be terminated if they did not return to work without \u201cthe drama.\u201d The Plaintiff did not return to work on the following work day and did not contact the Defendant again, until several months later, when she filed the subject complaint in May of 2015. Thereafter, the Defendant responded with a motion for summary judgment in November of 2015, and the Plaintiff filed a response in December. The district court ultimately granted summary judgment on behalf of the Defendant and the Plaintiff appealed. On her appeal, the Plaintiff argued that she had presented evidence demonstrating a genuine dispute over whether she was terminated, whether that termination was motivated by discrimination or retaliation, and whether she was owed overtime wages.\n<\/p>\n

\nOn appeal, the Eleventh Circuit affirmed the grant of summary judgment in its entirety. The court began by recognizing that employees are permitted to bring claims of intentional race discrimination under section 1981, and that such claims require the same showing as those brought pursuant to Title VII, i.e., the proof of discriminatory treatment by a preponderance of the evidence by either direct or circumstantial evidence. The Plaintiff offered direct evidence in the form of an unsworn declaration of a co-worker, stating among other things, that one of the partners called her his \u201cBlack Work Wife\u201d and that she heard the other partner tell an employee that he did not like \u201cBlack people\u201d and \u201cthat\u2019s why they\u2019re in the back office.\u201d According to the court, this evidence was not related to the decision-making process regarding hiring and firing, and thus, was not direct evidence of discrimination. With that, the court determined that this was a circumstantial case and needed to be analyzed under the McDonnell Douglas<\/em> framework. That framework requires that an employee first make a prima facie case of discrimination by showing that she is a member of a protected class, was qualified to perform the subject job, was subjected to an adverse employment action, and that her employer treated similarly situated employees outside of her protected class more favorably. After that, the employer must offer a legitimate, non-discriminatory reason for the subject employment action. If the employer does so, the employee must successfully rebut the offered reason by showing that it is pre-textual.\n<\/p>\n

\nThe Eleventh Circuit, like the district court, found that the Plaintiff did not establish a prima facie case of discrimination because she did not show that she suffered an adverse action, specifically, that she did not show that she was actually terminated. The court went on to state that even if the Plaintiff did establish a prima facie case, the Defendant offered a legitimate, non-discriminatory reason for her termination. According to the court, the undisputed evidence showed that the Defendant called an all-staff meeting on February 21, 2014 to address issues of professionalism. The Plaintiff was the only employee who did not return to work after that meeting, and further, did not contact the Defendant to ask about her job status. Thus, the reason for any termination was job abandonment, and was not discriminatory. Regarding the Plaintiff\u2019s claims of retaliation, the court found that there was no direct or circumstantial evidence supporting either claim, and affirmed the district court\u2019s holding.\n<\/p>\n

\nThe Eleventh Circuit likewise affirmed that district court\u2019s grant of summary judgment for the Defendant on the Plaintiff\u2019s unpaid overtime claims. The Plaintiff argued that she provided evidence of hours that she worked overtime without being properly compensated in the form of several of her time sheets and a pay stub. According to the Plaintiff, if she submitted a time sheet with over eight hours worked on a work day the Defendant would only approve eight hours, resulting in her not being paid for 140 hours. However, the Plaintiff was not able to identify any specific work day that she worked over eight hours. According to the Eleventh Circuit, the Plaintiff failed to establish that there was a genuine issue about whether she worked unpaid overtime, and although she claimed that the Defendant\u2019s records were inaccurate, she failed to provide any specific evidence showing that she did actually work over 40 hours in any week.<\/p>\n


\nLewis, et al. v. Governor of Alabama, et al<\/em>., 896 F. 3d 1282 (11th Cir. 2018).<\/strong><\/p>\n

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

The case of Lewis, et al. v. Governor of Alabama involved various constitutional claims, procedural issues, and the determination of multiple preliminary issues regarding the proper naming of defendants and the Plaintiffs\u2019 standing to file the subject lawsuit. Important here, is the Eleventh Circuit\u2019s reversal of the district court\u2019s dismissal of the Plaintiffs\u2019 claim that their equal protection rights were violated by the enactment of the Minimum Wage and Right-to-Work Act, and thus, only the information pertinent to that issue is included. Additionally, the Eleventh Circuit affirmed the removal of several named Defendants and the dismissal of several of the Plaintiffs\u2019 claims not related to the issue on appeal, and thus, the only information included regarding those issues is that which is needed in order to analyze the Plaintiff\u2019s appeal.<\/p>\n

\nThe heart of the subject appeal is whether the Plaintiffs have stated a plausible claim that the Act had the purpose and effect of discriminating against Birmingham\u2019s black citizens, in violation of the Equal Protection Clause of the Fourteenth Amendment. By way of background, the events resulting in this lawsuit began when the Mayor of Birmingham signed Ordinance No. 16-28, guaranteeing all wage earners in the city a minimum wage of $10.10 per hour. The next day, Alabama\u2019s Governor signed the Minimum Wage and Right-to-Work Act into law, nullifying the ordinance, and setting the minimum wage at $7.25 per hour.\n<\/p>\n

\nThe ordinance declared the need \u201cto take legislative steps to help lift working families out of poverty, decrease income inequality, and boost [Birmingham\u2019s] economy.\u201d Birmingham, the largest city in Alabama, has more total residents living in poverty (30% of its citizens) than anywhere else in the state. The city is also home to the largest black population in Alabama (72%), which is reflected in the racial composition of its city council. About one week after the ordinance was approved, a white state representative from a neighboring community where only 1.5% of the residents are black and 3% live below the poverty line, introduced a bill to quash the ordinance and establish a statewide minimum wage. Although no black member of the House Committee on State Government voted in favor of the bill, it cleared the Alabama Senate Committee on Government Affairs and was sent to the Senate floor. Meanwhile, the Mayor of Birmingham signed the ordinance into law and published the news of the increased minimum wage in the Birmingham News\u2019 Sunday edition. However, the next day, the Alabama Senate approved the Minimum Wage Act, 23-12, rendering Ordinance No. 16-28 null and void. The Act lacked support from any black senators. Governor Bentley signed it into law less than two hours later.\n<\/p>\n

\nSeveral months later, two of the Plaintiffs, who live in Birmingham and make less than $10.10 per hour, along with several public interest groups, filed a lawsuit against the Attorney General of Alabama for racial discrimination under multiple theories. They amended their complaint to include claims under the Thirteenth, Fourteenth, and Fifteenth Amendments and added the State of Alabama, the City of Birmingham, and the Mayor of Birmingham as Defendants. The Defendants moved to dismiss for lack of standing and failure to state a claim. The district court granted the motion to dismiss, finding that the Plaintiffs lacked standing, the attorney general was in improper defendant, and that the Plaintiffs failed to assert any plausible claims.\n<\/p>\n

\nThe Plaintiffs appealed, alleging that the Act denies Birmingham\u2019s black citizens economic opportunities and abridges their right to vote on the basis of race and can be redressed by enjoining the attorney general from enforcing the Act or ordering that the city start enforcing the ordinance.\n<\/p>\n

\nThe Eleventh Circuit began its analysis by stating that in order to prevail on an equal protection challenge to a facially neutral law, the Plaintiffs needed to prove both a discriminatory impact and discriminatory intent or purpose. As blatant admission of improper racial motivation is rare, determining whether invidious discriminatory motivation exists requires a \u201csensitive inquiry into the circumstantial and direct evidence of intent as may be available,\u201d including determining the racial impact of the official action, the historical background of the decision, the sequence of events leading up to the challenged law, and departures from substantive and procedural norms.\n<\/p>\n

\nThe court determined that, at the outset, the Plaintiffs showed that there was a discriminatory impact. The Act denied 37% of Birmingham\u2019s black wage earners the higher hourly rate provided by the ordinance, compared to only 27% of white wage earners, and furthermore, that black wage earners in Birmingham make an average of $1.41 less per hour than white wage earners, and $2.12 less per hour statewide. According to the court, in light of those numbers, it was plausible that the Act bears more heavily on one race than another. Thus, the court moved onto the more difficult question of whether the Plaintiffs alleged facts that could plausibly support a conclusion that the Act was enacted with a discriminatory purpose. The court considered the detailed factual allegations of the amended complaint, which illustrated the disproportionate effect of the Act on Birmingham\u2019s poorest black residents; the rushed, reactionary, and racially polarized nature of the legislative process; and, Alabama\u2019s historical use of state power to deny local black majorities authority over economic decision-making. The court found that the Act was made in direct response to the ordinance in attempt to quickly nullify any efforts by Birmingham\u2019s Mayor or City Council to benefit their majority-black constituents, despite the fact that the state\u2019s legislature had previously been indifferent to efforts to establish such a law. The Act was introduced by a white representative from Alabama\u2019s least diverse area, with the help of fifty-two other white sponsors, and was objected to by all black members of the House and Senate, and was accelerated through the legislative process in sixteen days with little or no opportunity for public comment or debate. These facts plausibly imply discriminatory motivations were at play. Furthermore, the Plaintiffs provided extensive evidence suggesting that the Act reflected Alabama\u2019s longstanding history \u201cof official actions taken for invidious purposes.\u201d According to the court, the Plaintiffs\u2019 allegations entitle them to make good on their claim, and in reversing the district court\u2019s dismissal of their claim, stated that the Plaintiffs had asserted a plausible claim that the Act had the purpose and effect of depriving Birmingham\u2019s black citizens equal economic opportunities on the basis of race, in violation of the Equal Protection Clause of the Fourteenth Amendment. In so reversing, the court took particular issue with the district court\u2019s \u201cso-called \u2018clearest proof\u2019 standard.\u201d The Eleventh Circuit found that the district court had \u201crecklessly plucked [the standard] from an unrelated line of precedent and that it runs contrary to decades of established equal protection jurisprudence\u2026[and] that the standard has no place in equal protection law\u2026[as it] ignores the history of the equal protection law and turns a blind eye to the realities of modern discrimination.\u201d Finally, the court made it clear that the only issue before it was whether the Plaintiffs had plausibly stated a claim for disparate impact and discriminatory intent, and thus, did not entertain the Defendants\u2019 arguments purporting \u201clegitimate reasons\u201d for the Act.<\/p>\n


\nSubmitted by:<\/strong>

\n<\/strong>James C. Solomon <\/strong><\/a>
\nAttorney
\nScott Wagner and Associates, P.A.
\n(561) 653-0008
\n250 S. Central Blvd #104A
\nJupiter, FL 33458
JCSolomon@scottwagnerlaw.com<\/a> \u00a0
\nwww.scottwagnerlaw.com <\/p>\n","protected":false},"excerpt":{"rendered":"

Second Circuit Catzin v. Thank You & Good Luck, 899 F.3d 77 (2d Cir. 2018). District court abused its discretion…<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":40,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"kp-content-permissions":[],"class_list":["post-42","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages\/42","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/comments?post=42"}],"version-history":[{"count":2,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages\/42\/revisions"}],"predecessor-version":[{"id":445,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages\/42\/revisions\/445"}],"up":[{"embeddable":true,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/pages\/40"}],"wp:attachment":[{"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/media?parent=42"}],"wp:term":[{"taxonomy":"kp-content-permissions","embeddable":true,"href":"https:\/\/www.fedbar.org\/labor-employment-law-section\/wp-json\/wp\/v2\/kp-content-permissions?post=42"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}