{"id":47,"date":"2019-12-09T18:16:33","date_gmt":"2019-12-09T18:16:33","guid":{"rendered":"https:\/\/www.fedbar.org\/labor-employment-law-section\/\/july-2018\/"},"modified":"2019-12-09T18:16:33","modified_gmt":"2019-12-09T18:16:33","slug":"july-2018","status":"publish","type":"page","link":"https:\/\/www.fedbar.org\/labor-employment-law-section\/le\/circuit-updates\/2018-2\/july-2018\/","title":{"rendered":"July 2018"},"content":{"rendered":"

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

\n<\/p>


\nAcosta v. Local Union 26, UNITE HERE<\/em>, 895 F.3d 141 (1st Cir. 2018).<\/strong><\/p>\n

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

\nThe Secretary of Labor brought an action against a union, alleging it violated the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. \u00a7 104, when it refused to allow a union member to take notes while inspecting union\u2019s collective bargaining agreements (CBAs) with other employers. The court held that in conferring union members a right to \u201cinspect\u201d CBAs, under \u00a7104 of the Labor-Management Reporting and Disclosure Act, Congress did not include the right to take notes. As held by the Court, while unions are free to permit members to take notes when inspecting CBAs, they\u2019re not obligated by law to do so.\n<\/p>\n

\nSubmitted by:
<\/strong>Jos\u00e9 R. Gonz\u00e1lez-Nogueras, Esq. <\/strong><\/a>
<\/strong>Pizarro & Gonz\u00e1lez\t\t\t
\nEmail: jgonzalez@pg.legal<\/a> \u00a0\t\t\t\t\t
\nOffice: (787) 767-7777
\nP. O. Box 194302
\nSan Juan, PR 00919-4302
www.pg.legal<\/a>\u00a0\u00a0<\/p>\n

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

\u00a0Strothers v. City of Laurel, Maryland<\/em>, 895 F.3d 317 (4th Cir. 2018).<\/strong><\/p>\n

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

The manager of a city department treated her administrative assistant harshly by incorrectly marking the assistant tardy daily, requiring her to report when she went to the bathroom, and falsely claiming that she violated the dress code. On multiple occasions, the assistant complained to the director of her department and other city officials. The director admitted to the assistant, a black woman, that the manager had wanted to hire someone of a different race. The assistant also learned that the manager had disciplined the only other black employee who worked for her, but had never disciplined a white employee. After complaining orally several times, the assistant submitted an internal memorandum detailing the harassment, claiming that the manager was creating a \u201chostile environment.\u201d The department did not conduct an investigation. The assistant then told the director she wanted to file a formal grievance against the manager. The next day, the assistant was fired, purportedly for tardiness.<\/p>\n

\nThe assistant sued the city for race discrimination and Title VII retaliation. The district court dismissed the discrimination claim, and entered summary judgment for the city on the retaliation claim, concluding that the assistant failed to show a prima facie<\/em> case of retaliation. The assistant appealed the entry of summary judgment on the retaliation claim.\n<\/p>\n

\nUnder the McDonnell Douglas<\/em> burden-shifting framework, an employee must establish a prima facie<\/em> case of retaliation by showing that (1) she engaged in protected activity; (2) the employer took adverse action against her; and (3) there was a causal connection between the protected activity and the adverse action. An employee engages in protected activity under Title VII even if she complains of actions that are not actually unlawful under Title VII, as long as the employee had an objectively reasonable belief that a Title VII violation occurred. To make out a prima facie<\/em> case of causation, the employee must show that the employer took adverse action soon after becoming aware that the employee engaged in activity that the employer knew or should have known was protected under Title VII.\n<\/p>\n

\nOn appeal, adverse action was not in dispute. The assistant argued that the district court erred by granting summary judgment because the evidence was sufficient to make out a prima facie<\/em> case on the protected activity and causation elements. The Fourth Circuit agreed.\n<\/p>\n

\nThe Fourth Circuit concluded that the assistant engaged in protected activity when she complained, because she had an objectively reasonable belief that there was a hostile work environment. The Fourth Circuit examined the record in light of the elements of a hostile work environment claim: (1) unwelcome conduct; (2) based on the employee\u2019s protected status; (3) which is sufficiently severe or pervasive to alter the conditions of employment or create an abusive environment; and (4) which is imputable to the employer, either because it was committed by a supervisor, or because the employer was negligent in failing to prevent the harassment. The Fourth Circuit found sufficient evidence that the employee reasonably believed she was subjected to severe or pervasive unwelcome conduct based on her race, given that she was subjected to intense scrutiny that amounted to changing her work schedule and dress code by a manager who had wanted to hire someone of a different race and who had a history of mistreating black employees. The Fourth Circuit also ruled that the conduct was imputable to the city. Because the assistant was pursuing a retaliation claim, she was not required to show that her manager met the criteria for a \u201csupervisor\u201d under Title VII, only that she reasonably believed her manager was a supervisor, which was supported by the record. In the alternative, there was sufficient evidence that the conduct was imputable to the city because of the city\u2019s negligence, where the assistant made numerous complaints, and the city failed to take any remedial action.\n<\/p>\n

\nTurning to causation, the Fourth Circuit concluded that the assistant\u2019s complaints of \u201charassment\u201d and a \u201chostile environment,\u201d which, in context, should have been understood to mean race discrimination, put the employer on notice that the assistant engaged in protected activity. Therefore, the Fourth Circuit rejected the city\u2019s argument that it did not understand that the assistant engaged in protected activity, because she did not explicitly mention race discrimination. The Fourth Circuit concluded that temporal proximity was sufficient to establish a causal connection at the prima facie<\/em> stage because the city terminated the assistant the day after she said she intended to file a formal grievance against the manager.\n<\/p>\n

\nBecause the evidence was sufficient for a reasonable jury to find that the assistant engaged in protected activity, and was terminated as a result, the Fourth Circuit reversed the entry of summary judgment for the city.<\/p>\n

\n
\nSavage v. Maryland<\/em>, 896 F.3d 260 (4th Cir. 2018).<\/strong><\/p>\n

An African-American police officer at the Pocomoke City Police Department attended a trial preparation meeting with members of the State\u2019s Attorney\u2019s office. During the meeting, the State\u2019s Attorney read aloud verbatim some letters written by suspects, including reading the \u201cN\u201d word repeatedly. The police officer filed complaints with the Equal Employment Opportunity Commission (\u201cEEOC\u201d) and the Maryland Attorney Grievance Commission reporting the State\u2019s Attorney\u2019s repeated reading of the racial slur. The State\u2019s Attorney later called into question the officer\u2019s veracity, and said he would decline to prosecute cases where he did not have independent corroboration of the officer\u2019s testimony. Because testifying was part of the officer\u2019s job, the decision interfered with his work. More than one year later, the officer was fired.\n<\/p>\n

\nThe officer sued the State\u2019s Attorney in his personal capacity, alleging that he created a racially hostile work environment through his actions at the trial preparation meeting, and then retaliated against the officer by preventing him from testifying after the officer spoke out about the meeting. Although the officer was a city employee, he also sued the State of Maryland, alleging that the State interfered with his employment when the State\u2019s Attorney retaliated against him for complaining about race discrimination. The district court dismissed the claims against the State\u2019s Attorney on the prosecutorial immunity grounds, and entered partial final judgment to allow the officer to take an immediate appeal. The district court denied the State\u2019s motion to dismiss, or for summary judgment, and certified its order for immediate appeal. The officer and the State appealed.\n<\/p>\n

\nProsecutors are absolutely immune from damages liability when they act as advocates for the State. To determine whether a prosecutor is acting as an advocate, the Fourth Circuit applies a functional approach, considering the nature of the function performed, rather than the identity of the actor.\n<\/p>\n

\nThe Fourth Circuit concluded that the State\u2019s Attorney was acting as an advocate for the State by assessing evidence at the trial preparation meeting, evaluating the officer\u2019s credibility, and choosing cases to prosecute. The Fourth Circuit ruled that it was immaterial that the prosecutor may have had a retaliatory motive, or that the prosecutor\u2019s actions had negative employment consequences, interfering with the officer\u2019s ability to perform his job. Because the challenged conduct involved advocacy functions, prosecutorial immunity applied, and the Fourth Circuit affirmed the dismissal of all claims against the State\u2019s Attorney.\n<\/p>\n

\nTurning to the State\u2019s appeal, the Fourth Circuit concluded that the district court erred by denying the State\u2019s motion to dismiss the officer\u2019s Title VII retaliation claim. The Fourth Circuit ruled that the officer failed to state a claim because he could not reasonably have believed that the State\u2019s Attorney\u2019s conduct during the trial preparation meeting was unlawful under Title VII. Listening to an attorney read aloud verbatim from a work-related document at a work-related meeting was part of the ordinary terms and conditions of the officer\u2019s job. The Court acknowledged that the \u201cN\u201d word is particularly odious, and that even a single use of that word can create a hostile work environment, but relied on the context in which the prosecutor used the word\u2014reading aloud from evidence in a trial preparation meeting, as opposed to directing a slur at the officer. Because the officer could not have had an objectively reasonable belief that a Title VII violation occurred, he did not adequately allege that he had engaged in protected activity. Therefore, the Fourth Circuit reversed the district court\u2019s order denying the State\u2019s motion to dismiss the officer\u2019s retaliation claim.<\/p>\n

\n
\nHunter v. Town of Mocksville, North Carolina<\/em>, ___F.3d___, 2018 WL 3579678 (4th Cir. July 26, 2018).<\/strong><\/p>\n

\nA town manager and police chief fired three police officers after learning that the officers anonymously reported corruption within the police department. The officers sued the town, the police chief, and the town manager, alleging that they were terminated in retaliation for exercising their free speech rights under the First Amendment and the North Carolina Constitution, and claiming that they were wrongfully discharged in violation of North Carolina public policy.\n<\/p>\n

\nThe district court granted summary judgment for the town on the First Amendment claim, ruling that the terminations could not be attributed to the town, because neither the police chief nor the town manager had final policymaking authority to set employment policy for the town. A jury returned a verdict for the officers against the police chief and town manager on the First Amendment claims, and against the town on the wrongful discharge claim. The jury found all defendants liable for $1.4 million in compensatory damages, and awarded punitive damages against the police chief and town manager. The jury also returned an advisory verdict recommending that the officers receive $2.6 million in front pay. The district court allowed reinstatement for one of the officers, and awarded approximately $600,000 in front pay.\n<\/p>\n

\nThe district court concluded that the town enjoyed state law governmental immunity, except to the extent the town had purchased insurance. The town\u2019s insurer intervened in the case and argued that the town\u2019s policy limited the officers\u2019 aggregate recovery against the town to $1 million, while the officers argued that the policy provided up to $1 million in coverage per plaintiff. The district court ruled in favor of the insurer. Therefore, the district could held that the defendants were jointly and severally liable to the officers for approximately $2 million, including compensatory damages and front pay, but that the town\u2019s liability for the judgment was limited to $1 million. The district court held that the officers had an adequate state law remedy and dismissed their state constitutional claims. The officers appealed.\n<\/p>\n

\nOn appeal, all three officers argued that the district court misinterpreted the insurance policy, and that the district court erred by dismissing their First Amendment claims against the town. One of the officers also argued that the district court erred by denying his request for reinstatement, or in the alternative, an increase in front pay.\n<\/p>\n

\nThe Fourth Circuit first analyzed the town\u2019s employment-practices insurance policy, and agreed with the officers that the policy provided $1 million in coverage per officer, up to the annual aggregate policy limit of $3 million.\n<\/p>\n

\nNext, the Fourth Circuit considered the officers\u2019 argument that the police chief and town manager were final policymakers for the town with respect to the conduct at issue, making the town liable for damages under 28 U.S.C. \u00a7 1983 on the officers\u2019 First Amendment claims. For a municipality to be held liable under \u00a7 1983, the plaintiff must show that the execution of the municipality\u2019s official policy or custom inflicted the plaintiff\u2019s injury. A municipality may create an official policy by making a single decision; if the decisionmaker had final authority to make the decision, her actions may be considered official municipal policy and attributed to the town. Based on its analysis of North Carolina law and local ordinances, the Fourth Circuit concluded that the town had delegated to the town manager unfettered policymaking authority with respect to almost all personnel matters, including termination. While the Fourth Circuit agreed that the police chief was not a final policymaker, the town manager\u2019s status was sufficient to attribute the terminations to the town. Therefore, the Fourth Circuit reversed the dismissal of the First Amendment claims against the town, and remanded with instructions to enter judgment in favor of the officers.\n<\/p>\n

\nFinally, the Fourth Circuit concluded that there was no abuse of discretion in the district court\u2019s denial of reinstatement, where the employee-employer relationship had deteriorated, or in the decision to award 1.75 years of front pay, where the district court considered all of the circumstances, including the officer\u2019s positive prospects for re-employment, in fashioning the award.\n<\/p>\n\n

Griffin v. Hartford Life & Accident Insurance Co., ___F.3d___, 2018 WL 3624872 (4th Cir. July 31, 2018).
\n
\nAfter a medical transcriptionist stopped working because of forearm and wrist pain that interfered with his typing, he received long-term disability benefits under his employer\u2019s plan. The plan administrator, Hartford Life, periodically monitored the employee\u2019s disability status. After receiving some information from a physician suggesting that the employee\u2019s condition had improved, Hartford Life investigated whether the employee remained disabled, including obtaining a peer-review assessment of the employee\u2019s medical records, observing the employee\u2019s activities, and conducting an in-person interview with the employee. Based on this information, Hartford Life conducted an employability analysis, and found that there were several available jobs that the employee could perform. Therefore, Hartford Life advised the employee that he was no longer considered disabled, and terminated his benefits. Hartford Life then denied the employee\u2019s appeal.<\/p>\n

\nThe employee sued Hartford Life under the Employee Retirement Income Security Act (\u201cERISA\u201d). The district court granted Hartford Life\u2019s motion for summary judgment, and the employee appealed.\n<\/p>\n

\nWhen an employee challenges the denial or termination of benefits under an ERISA plan, the reviewing court applies a de novo<\/em> standard of review, unless the plan gives the administrator discretion to determine eligibility for benefits. When the plan confers discretion on the administrator, the court reviews only whether the administrator exceeded its power or abused its discretion. There is no abuse of discretion if the administrator\u2019s decision results from a deliberate, principled reasoning process, and it is supported by substantial evidence.\n<\/p>\n

\n<\/p>


\nAcosta v. Local Union 26, UNITE HERE<\/em>, 895 F.3d 141 (1st Cir. 2018).<\/strong><\/p>\n

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

The Secretary of Labor brought an action against a union, alleging it violated the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. \u00a7 104, when it refused to allow a union member to take notes while inspecting union\u2019s collective bargaining agreements (CBAs) with other employers. The court held that in conferring union members a right to \u201cinspect\u201d CBAs, under \u00a7104 of the Labor-Management Reporting and Disclosure Act, Congress did not include the right to take notes. As held by the Court, while unions are free to permit members to take notes when inspecting CBAs, they\u2019re not obligated by law to do so.<\/p>\n

\n
\nStrothers v. City of Laurel, Maryland<\/em>, 895 F.3d 317 (4th Cir. 2018).<\/strong><\/p>\n

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

The manager of a city department treated her administrative assistant harshly by incorrectly marking the assistant tardy daily, requiring her to report when she went to the bathroom, and falsely claiming that she violated the dress code. On multiple occasions, the assistant complained to the director of her department and other city officials. The director admitted to the assistant, a black woman, that the manager had wanted to hire someone of a different race. The assistant also learned that the manager had disciplined the only other black employee who worked for her, but had never disciplined a white employee. After complaining orally several times, the assistant submitted an internal memorandum detailing the harassment, claiming that the manager was creating a \u201chostile environment.\u201d The department did not conduct an investigation. The assistant then told the director she wanted to file a formal grievance against the manager. The next day, the assistant was fired, purportedly for tardiness.<\/p>\n

\nThe assistant sued the city for race discrimination and Title VII retaliation. The district court dismissed the discrimination claim, and entered summary judgment for the city on the retaliation claim, concluding that the assistant failed to show a prima facie<\/em> case of retaliation. The assistant appealed the entry of summary judgment on the retaliation claim.\n<\/p>\n

\nUnder the McDonnell Douglas<\/em> burden-shifting framework, an employee must establish a prima facie<\/em> case of retaliation by showing that (1) she engaged in protected activity; (2) the employer took adverse action against her; and (3) there was a causal connection between the protected activity and the adverse action. An employee engages in protected activity under Title VII even if she complains of actions that are not actually unlawful under Title VII, as long as the employee had an objectively reasonable belief that a Title VII violation occurred. To make out a prima facie<\/em> case of causation, the employee must show that the employer took adverse action soon after becoming aware that the employee engaged in activity that the employer knew or should have known was protected under Title VII.\n<\/p>\n

\nOn appeal, adverse action was not in dispute. The assistant argued that the district court erred by granting summary judgment because the evidence was sufficient to make out a prima facie<\/em> case on the protected activity and causation elements. The Fourth Circuit agreed.\n<\/p>\n

\nThe Fourth Circuit concluded that the assistant engaged in protected activity when she complained, because she had an objectively reasonable belief that there was a hostile work environment. The Fourth Circuit examined the record in light of the elements of a hostile work environment claim: (1) unwelcome conduct; (2) based on the employee\u2019s protected status; (3) which is sufficiently severe or pervasive to alter the conditions of employment or create an abusive environment; and (4) which is imputable to the employer, either because it was committed by a supervisor, or because the employer was negligent in failing to prevent the harassment. The Fourth Circuit found sufficient evidence that the employee reasonably believed she was subjected to severe or pervasive unwelcome conduct based on her race, given that she was subjected to intense scrutiny that amounted to changing her work schedule and dress code by a manager who had wanted to hire someone of a different race and who had a history of mistreating black employees. The Fourth Circuit also ruled that the conduct was imputable to the city. Because the assistant was pursuing a retaliation claim, she was not required to show that her manager met the criteria for a \u201csupervisor\u201d under Title VII, only that she reasonably believed her manager was a supervisor, which was supported by the record. In the alternative, there was sufficient evidence that the conduct was imputable to the city because of the city\u2019s negligence, where the assistant made numerous complaints, and the city failed to take any remedial action.\n<\/p>\n

\nTurning to causation, the Fourth Circuit concluded that the assistant\u2019s complaints of \u201charassment\u201d and a \u201chostile environment,\u201d which, in context, should have been understood to mean race discrimination, put the employer on notice that the assistant engaged in protected activity. Therefore, the Fourth Circuit rejected the city\u2019s argument that it did not understand that the assistant engaged in protected activity, because she did not explicitly mention race discrimination. The Fourth Circuit concluded that temporal proximity was sufficient to establish a causal connection at the prima facie<\/em> stage because the city terminated the assistant the day after she said she intended to file a formal grievance against the manager.\n<\/p>\n

\nBecause the evidence was sufficient for a reasonable jury to find that the assistant engaged in protected activity, and was terminated as a result, the Fourth Circuit reversed the entry of summary judgment for the city.<\/p>\n

\n
\nSavage v. Maryland<\/em>, 896 F.3d 260 (4th Cir. 2018).<\/strong><\/p>\n

An African-American police officer at the Pocomoke City Police Department attended a trial preparation meeting with members of the State\u2019s Attorney\u2019s office. During the meeting, the State\u2019s Attorney read aloud verbatim some letters written by suspects, including reading the \u201cN\u201d word repeatedly. The police officer filed complaints with the Equal Employment Opportunity Commission (\u201cEEOC\u201d) and the Maryland Attorney Grievance Commission reporting the State\u2019s Attorney\u2019s repeated reading of the racial slur. The State\u2019s Attorney later called into question the officer\u2019s veracity, and said he would decline to prosecute cases where he did not have independent corroboration of the officer\u2019s testimony. Because testifying was part of the officer\u2019s job, the decision interfered with his work. More than one year later, the officer was fired.\n<\/p>\n

\nThe officer sued the State\u2019s Attorney in his personal capacity, alleging that he created a racially hostile work environment through his actions at the trial preparation meeting, and then retaliated against the officer by preventing him from testifying after the officer spoke out about the meeting. Although the officer was a city employee, he also sued the State of Maryland, alleging that the State interfered with his employment when the State\u2019s Attorney retaliated against him for complaining about race discrimination. The district court dismissed the claims against the State\u2019s Attorney on the prosecutorial immunity grounds, and entered partial final judgment to allow the officer to take an immediate appeal. The district court denied the State\u2019s motion to dismiss, or for summary judgment, and certified its order for immediate appeal. The officer and the State appealed.\n<\/p>\n

\nProsecutors are absolutely immune from damages liability when they act as advocates for the State. To determine whether a prosecutor is acting as an advocate, the Fourth Circuit applies a functional approach, considering the nature of the function performed, rather than the identity of the actor.\n<\/p>\n

\nThe Fourth Circuit concluded that the State\u2019s Attorney was acting as an advocate for the State by assessing evidence at the trial preparation meeting, evaluating the officer\u2019s credibility, and choosing cases to prosecute. The Fourth Circuit ruled that it was immaterial that the prosecutor may have had a retaliatory motive, or that the prosecutor\u2019s actions had negative employment consequences, interfering with the officer\u2019s ability to perform his job. Because the challenged conduct involved advocacy functions, prosecutorial immunity applied, and the Fourth Circuit affirmed the dismissal of all claims against the State\u2019s Attorney.\n<\/p>\n

\nTurning to the State\u2019s appeal, the Fourth Circuit concluded that the district court erred by denying the State\u2019s motion to dismiss the officer\u2019s Title VII retaliation claim. The Fourth Circuit ruled that the officer failed to state a claim because he could not reasonably have believed that the State\u2019s Attorney\u2019s conduct during the trial preparation meeting was unlawful under Title VII. Listening to an attorney read aloud verbatim from a work-related document at a work-related meeting was part of the ordinary terms and conditions of the officer\u2019s job. The Court acknowledged that the \u201cN\u201d word is particularly odious, and that even a single use of that word can create a hostile work environment, but relied on the context in which the prosecutor used the word\u2014reading aloud from evidence in a trial preparation meeting, as opposed to directing a slur at the officer. Because the officer could not have had an objectively reasonable belief that a Title VII violation occurred, he did not adequately allege that he had engaged in protected activity. Therefore, the Fourth Circuit reversed the district court\u2019s order denying the State\u2019s motion to dismiss the officer\u2019s retaliation claim.<\/p>\n

\n
\nHunter v. Town of Mocksville, North Carolina<\/em>, ___F.3d___, 2018 WL 3579678 (4th Cir. July 26, 2018).<\/strong><\/p>\n

\nA town manager and police chief fired three police officers after learning that the officers anonymously reported corruption within the police department. The officers sued the town, the police chief, and the town manager, alleging that they were terminated in retaliation for exercising their free speech rights under the First Amendment and the North Carolina Constitution, and claiming that they were wrongfully discharged in violation of North Carolina public policy.\n<\/p>\n

\nThe district court granted summary judgment for the town on the First Amendment claim, ruling that the terminations could not be attributed to the town, because neither the police chief nor the town manager had final policymaking authority to set employment policy for the town. A jury returned a verdict for the officers against the police chief and town manager on the First Amendment claims, and against the town on the wrongful discharge claim. The jury found all defendants liable for $1.4 million in compensatory damages, and awarded punitive damages against the police chief and town manager. The jury also returned an advisory verdict recommending that the officers receive $2.6 million in front pay. The district court allowed reinstatement for one of the officers, and awarded approximately $600,000 in front pay.\n<\/p>\n

\nThe district court concluded that the town enjoyed state law governmental immunity, except to the extent the town had purchased insurance. The town\u2019s insurer intervened in the case and argued that the town\u2019s policy limited the officers\u2019 aggregate recovery against the town to $1 million, while the officers argued that the policy provided up to $1 million in coverage per plaintiff. The district court ruled in favor of the insurer. Therefore, the district could held that the defendants were jointly and severally liable to the officers for approximately $2 million, including compensatory damages and front pay, but that the town\u2019s liability for the judgment was limited to $1 million. The district court held that the officers had an adequate state law remedy and dismissed their state constitutional claims. The officers appealed.\n<\/p>\n

\nOn appeal, all three officers argued that the district court misinterpreted the insurance policy, and that the district court erred by dismissing their First Amendment claims against the town. One of the officers also argued that the district court erred by denying his request for reinstatement, or in the alternative, an increase in front pay.\n<\/p>\n

\nThe Fourth Circuit first analyzed the town\u2019s employment-practices insurance policy, and agreed with the officers that the policy provided $1 million in coverage per officer, up to the annual aggregate policy limit of $3 million.\n<\/p>\n

\nNext, the Fourth Circuit considered the officers\u2019 argument that the police chief and town manager were final policymakers for the town with respect to the conduct at issue, making the town liable for damages under 28 U.S.C. \u00a7 1983 on the officers\u2019 First Amendment claims. For a municipality to be held liable under \u00a7 1983, the plaintiff must show that the execution of the municipality\u2019s official policy or custom inflicted the plaintiff\u2019s injury. A municipality may create an official policy by making a single decision; if the decisionmaker had final authority to make the decision, her actions may be considered official municipal policy and attributed to the town. Based on its analysis of North Carolina law and local ordinances, the Fourth Circuit concluded that the town had delegated to the town manager unfettered policymaking authority with respect to almost all personnel matters, including termination. While the Fourth Circuit agreed that the police chief was not a final policymaker, the town manager\u2019s status was sufficient to attribute the terminations to the town. Therefore, the Fourth Circuit reversed the dismissal of the First Amendment claims against the town, and remanded with instructions to enter judgment in favor of the officers.\n<\/p>\n

\nFinally, the Fourth Circuit concluded that there was no abuse of discretion in the district court\u2019s denial of reinstatement, where the employee-employer relationship had deteriorated, or in the decision to award 1.75 years of front pay, where the district court considered all of the circumstances, including the officer\u2019s positive prospects for re-employment, in fashioning the award.\n<\/p>\n\n

\nGriffin v. Hartford Life & Accident Insurance Co<\/em>., ___F.3d___, 2018 WL 3624872 (4th Cir. July 31, 2018).<\/strong><\/p>\n

\nAfter a medical transcriptionist stopped working because of forearm and wrist pain that interfered with his typing, he received long-term disability benefits under his employer\u2019s plan. The plan administrator, Hartford Life, periodically monitored the employee\u2019s disability status. After receiving some information from a physician suggesting that the employee\u2019s condition had improved, Hartford Life investigated whether the employee remained disabled, including obtaining a peer-review assessment of the employee\u2019s medical records, observing the employee\u2019s activities, and conducting an in-person interview with the employee. Based on this information, Hartford Life conducted an employability analysis, and found that there were several available jobs that the employee could perform. Therefore, Hartford Life advised the employee that he was no longer considered disabled, and terminated his benefits. Hartford Life then denied the employee\u2019s appeal.\n<\/p>\n

\nThe employee sued Hartford Life under the Employee Retirement Income Security Act (\u201cERISA\u201d). The district court granted Hartford Life\u2019s motion for summary judgment, and the employee appealed.\n<\/p>\n

\nWhen an employee challenges the denial or termination of benefits under an ERISA plan, the reviewing court applies a de novo<\/em> standard of review, unless the plan gives the administrator discretion to determine eligibility for benefits. When the plan confers discretion on the administrator, the court reviews only whether the administrator exceeded its power or abused its discretion. There is no abuse of discretion if the administrator\u2019s decision results from a deliberate, principled reasoning process, and it is supported by substantial evidence.\n<\/p>\n

\nOn appeal, the employee argued that the district court erred by reviewing the plan administrator\u2019s decision for abuse of discretion, rather than de novo<\/em>, and by concluding that the employee failed to provide sufficient evidence that the administrator\u2019s decision was unreasonable under the abuse of discretion standard.\n<\/p>\n

\nThe employee acknowledged that the plan gave Hartford Life discretion to determine eligibility for benefits, but argued that Hartford Life did not make the decision that he was ineligible, because the employees involved in reviewing and denying the benefits claim were paid by an affiliated company, Hartford Fire. The Fourth Circuit disagreed, and affirmed the district court\u2019s conclusion that Hartford Life, not Hartford Fire, determined that the employee was ineligible for continued benefits. Therefore, the Fourth Circuit ruled that the district court properly reviewed the decision for abuse of discretion.\n<\/p>\n

\nThe employee next argued that, even if Hartford Life made the benefits decision, the decision was an unreasonable exercise of Hartford Life\u2019s discretion. The Fourth Circuit rejected this argument, concluding that the employee received fair and thorough consideration of his claim, and the denial was reasonably supported by available evidence. The Fourth Circuit also ruled that the fact that a single company is responsible for determining eligibility for benefits and also paying benefits does not make the decision making process unreasonable, and there was no evidence that such a conflict had an impact on Hartford Life\u2019s decision in this case. Therefore, the Fourth Circuit affirmed the district court\u2019s entry of summary judgment for Hartford Life.<\/p>\n

Submitted by:<\/strong>
Paul Sun<\/strong><\/a>
Kelly Margolis Dagger<\/strong><\/a>
\nELLIS & WINTERS LLP
Paul.sun@elliswinters.com
\nkelly.dagger@elliswinters.com<\/a><\/p>\n

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

\n<\/p>

\n
\nStroy v. Gibson<\/em>, ___F.3d___, 2018 WL 3454826 (5th Cir. July 17, 2018).<\/strong>\n<\/p>\n

Stroy, an African-American male physician employee of the Department of Veterans Affairs (VA) brought Title VII action against Secretary of the VA alleging racial discrimination and retaliation. The district court dismissed the retaliation claim for lack of subject matter jurisdiction and granted summary judgment in favor of the Secretary. This appeal ensued.\n<\/p>\n

\nStroy was subjected to peer review of his patient care. In this case, Stroy\u2019s patient\u2019s abnormal lab results were not reviewed by a physician and Stroy\u2019s patient was admitted to the hospital within three days of an ambulatory care visit. Under the VA\u2019s policies, these are among the specific events that may trigger peer review of a doctor\u2019s patient care. VA policy provides that the peer review process is meant to improve patient care, and the information gathered during the process \u201cmay not be used for personnel actions, disciplinary action, to affect privileges, or to affect employment.\u201d
\nA peer review committee examined Stroy\u2019s medical care and determined that \u201c[m]ost experienced competent practitioners would have managed the case differently.\u201d A second peer review committee examined Story\u2019s medical care. That committee revised the finding and determined that \u201cmost experienced competent practitioners would have managed the case in a similar manner.\u201d\n<\/p>\n

\nStroy sought to amend his administrative complaint to include a claim of retaliation. The EEO administrative judge denied the motion to amend to add this retaliation claim. Stroy submitted a separate EEO complaint alleging retaliation, but then filed suit in federal court prematurely, two days shy of the statutorily-mandated 180 days.\n<\/p>\n

\nThe district court dismissed his action for lack of subject matter jurisdiction. The Fifth Circuit held that Title VII\u2019s administrative exhaustion requirement is not a jurisdictional requirement. Rather, it is only a precondition to filing suit, subject to waiver or estoppel defenses. The Court held the district court\u2019s error made no difference in this case, because Stroy offered no waiver or estoppel argument to excuse his failure to exhaust, but insisted that his \u201cgood faith effort\u201d to comply with the regulations was enough to save his claim. While not a jurisdictional requirement, administrative exhaustion is still a requirement. The Court affirmed the dismissal of Stroy\u2019s retaliation claim.\n<\/p>\n

\nThe Fifth Circuit then held that Stroy failed to raise a genuine issue of material fact as to the third element of the prima facie case of racial discrimination. The VA\u2019s peer review process is not an \u201cadverse employment action under Title VII. Adverse employment actions are ultimate employment decisions such as hiring, firing, demoting, promoting, granting leave, and compensating. Because Stroy offered no evidence that he suffered a reduction in privileges, job responsibilities, or pay as a result of the peer review process, he suffered no adverse employment action. Accordingly, the Court upheld the VA\u2019s motion for summary judgment on Stroy\u2019s racial discrimination claim.\n<\/p>\n

\nIn-N-Out Burger, Incorporated v. National Labor Relations Board, 894 F.3d 707 (5th Cir. 2018).
\n: Employees at an In-N-Out Burger in Austin, Texas wore buttons demonstrating solidarity with the \u201cFight for $15\u201d campaign, a national campaign advocating a $15\/hour minimum wage and the right to form a union without intimidation, among other elements. Managers invoked a company rule that prohibits employees from \u201cwearing any type of pin or stickers\u201d on their uniforms and the employees desisted. In a particular instance, an employee inquired about wearing a \u201cFight for $15\u201d button and the manager stated that the button was not a part of the uniform. Depite the \u201cno pins or stickers\u201d rule, In-N-Out requires its employees to wear company-issued buttons twice a year: during the Christmas season and during the month of April, to advertise the In-N-Out Foundation. The National Labor Relations Board (NLRB) found the company\u2019s rule unlawful under the National Labor Relations Act (NLRA). The Fifth Circuit denied In-N-Out\u2019s petition for review and granted the Board\u2019s cross-application for enforcement.\n<\/p>\n

\nIn-N-Out invoked the special circumstances defense, attempting to demonstrate special circumstances sufficient to outweigh its employees\u2019 interests under the NLRA to display buttons, pins, and stickers relating to terms and conditions of employment, including wages and hours, unionization, and other protected matters, and legitimize the regulation of such insignia, then the right of employees to wear these items may give way. NLRB has developed a framework that guides the special circumstances inquiry and reinforces its limited scope. National Labor Relations Act \u00a7 7, 29 U.S.C.A. \u00a7 157.\n<\/p>\n

\nThe Fifth Circuit held that while In-N-Out need not show \u201cactual harm\u201d in order to establish \u201cspecial circumstances,\u201d it must put forth specific, non-speculative evidence of the adverse effects it claims justify its restriction. In-N-Out argued that it demonstrated \u201cspecial circumstances\u201d based on its concern with maintaining food safety by claiming the \u201cFight for $15\u201d buttons threatened to compromise food safety as compared to its company-issued button. The Board rejected this food safety argument, because In-N-Out\u2019s \u201cno pins or stickers\u201d rule banned all buttons other than its own, \u201cwithout regard to their safety.\u201d In-N-Out it failed to show that its rule was \u201cnarrowly tailored\u201d to food safety. The Fifth Circuit upheld the Board\u2019s findings that the company violated Section 8(a)(1) of the Act by maintaining and enforcing the \u201cno pins or stickers\u201d rule.\n<\/p>\n

\nThe Court then upheld the Board\u2019s finding that In-N-Out violated Section 8(a)(1) when a manger responded to an employee\u2019s question about wearing a \u201cFight for $15\u201d button. The manager stated that the button was not a part of the uniform. The Board held that an employee would reasonably infer from that statement that he was being told he could not wear the button.\n<\/p>\n

\nIn-N-Out also invoked the \u201cpublic image\u201d defense, claiming the approved buttons are part of the uniform. The Board observed that the Christmas and In-N-Out Foundation buttons are appreciably larger and \u201csignificantly more conspicuous\u201d than the \u201cFight for $15\u201d buttons. The Fifth Circuit held that the addition of larger, more noticeable buttons to employee uniforms did not interfere with In-N-Out\u2019s public image, the Board permissibly concluded that allowing employees to wear smaller buttons protected by Section 7, such as the \u201cFight for $15\u201d buttons, would not unreasonably interfere with the company\u2019s public image.\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

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

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


\nAsalde v. First Class Parking Systems<\/em> LLC, ___F.3d___, 2018 WL 3687862 (11th Cir. August 3, 2018).<\/strong><\/p>\n

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

Valet company moved for summary judgment arguing in part that valets could not show that any handled any qualifying \u201cgoods or materials\u201d under the \u201chandling clause\u201d of the FLSA. That provision states that an entity is subject to \u201centerprise\u201d coverage under the FLSA if it \u201chas employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for [interstate or international] commerce by any person.\u201d 29 U.S.C. \u00a7 203(s)(1)(A)(i). The district court granted summary judgment.<\/p>\n

\nThe Court held in Rodriguez v. Gold Star, Inc., 858 F.3d 1368, 1371 (2017), that cars parked by employees of a valet parking company were not \u201cmaterials\u201d because they are an item on which a service is performed rather than the means of performing the service. \u201cMaterials\u201d is not defined in the Act. Here, the Court held that a jury could find: (1) valet tickets are \u201carticles necessary for doing . . . something\u201d, i.e. providing the commercial service of parking cars; and (2) the valet tickets have a \u201csignificant connection\u201d with the company\u2019s commercial activity. There was sufficient evidence for a jury to find that the valet tickets moved in or were produced for interstate commerce.\n<\/p>\n

\nGarcia-Celestino v. Ruiz Harvesting, Inc<\/em>., ___F.3d___, 2018 WL 3652010 (11th Cir. August 2, 2018).<\/strong><\/p>\n

Ruiz Harvesting, the contractor, and Ruiz settled early on against claims that migrant workers\u2019 wages were subject to kickbacks, among other claims. After a bench trial the district court determined that Consolidated Citrus, the grove owner, was a joint employer for purposes of both the breach of contract and the FLSA claims, and held against Consolidated Citrus on both claims. In a prior appeal the Eleventh Circuit affirmed in part and reversed in part, finding that Consolidated Citrus was a joint employer under the FLSA, the Court concluded that the definition of \u201cemployer\u201d found in the common law of agency should have been applied rather than the FLSA\u2019s \u201ceconomic dependency\u201d test. On remand, the district court again held that Consolidated Citrus was a joint employer for purposes of the breach of contract claim. On appeal, the Eleventh Circuit reversed.<\/p>\n

\nThe Court noted that the FLSA defines \u201cemploy\u201d as \u201csuffer or permit to work\u201d, and the question under the FLSA is whether as a matter of economic reality the hired person is economically dependent upon the hiring entity. The Court, citing its earlier opinion, noted that this standard \u201cwas developed to assign responsibility to businesses that did not directly supervise putative employees\u201d and was \u201cone of the broadest possible delineations of the employer-employee relationship.\u201d\n<\/p>\n

\nIn contrast, the common law test \u201cmay be reduced to identifying who has the right to control workers\u2019 \u2018physical conduct in the performance of\u2019 their work.\u201d In a thirty-seven page opinion, the Court went through the factors which applied and which did not apply in reaching their opinion that Consolidated Citrus was not a common law \u201cemployer\u201d exhibiting significant control over the migrant workers. Consolidated Citrus was not liable under the breach of contract claim.\n<\/p>\n

\nBatson v. The Salvation Army<\/em>, ___F.3d___, 2018 WL 3628184 (11th Cir. July 31, 2018).<\/strong><\/p>\n

A ten year employee auditor with The Salvation Army (TSA) had her employment terminated after seeking accommodation for Multiple Sclerosis.<\/p>\n

\nThe Eleventh Circuit affirmed a grant of summary judgment on the ADA failure to accommodate claim. Batson asked TSA, through an ADA questionnaire completed by her physician, to adjust her travel schedule and allow her to telecommute occasionally. Batson found out her request had been denied. She took FMLA leave, and her employment was terminated upon her return. The Court found Batson offered no evidence that before her FMLA leave and termination, she needed either of the accommodations she previously had requested generally.\n<\/p>\n

\nAs to ADA retaliation, the Court first held that though she did not mark the retaliation box on her EEOC Charge, information she included in the Charge, prepared without counsel \u201cand under the liberal EEOC charge strictures\u201d, was sufficiently related to a retaliation claim to satisfy the administrative exhaustion requirement. As to ADA and FMLA retaliation, Batson had not proven that TSA\u2019s reasons were pretextual, but she cast sufficient doubt that TSA\u2019s reasons were pretextual such that a jury could infer that TSA\u2019s proffered legitimate reasons were not what actually motivated its conduct. As to FMLA interference in a termination case, an employee must show she was entitled to an FMLA benefit that was denied, and in general, the employer\u2019s motives are irrelevant. Once that is shown, an employer\u2019s affirmative defense is that it would have terminated the employee regardless of her request for or use of FMLA leave. The Court found she raised a genuine issue of fact as to whether she would have been terminated regardless of her request for FMLA leave.\n<\/p>\n

\nLewis v. Governor of Alabama<\/em>, ___F.3d___, 2018 WL 3552408 (11th Cir. July 25, 2018).<\/strong>\n<\/p>\n

In February of 2016, Alabama Governor Bentley signed the Act into law, nullifying Birmingham Ordinance 16-28 which had become effective the day before. Birmingham\u2019s Ordinance guaranteed wage earners in the city $10.10 per hour. Alabama\u2019s Act preempted all local labor and employment regulation, including Birmingham\u2019s, and mandated a uniform minimum wage, which then and now is $7.25 per hour.<\/p>\n

\nThe Court reversed the district court\u2019s holding that Plaintiffs lack Article III standing to assert their claims against the Alabama Attorney General and the State of Alabama. The Court found the Attorney General was sufficiently connected to the enforcement of the Act so that suit was not prohibited by the Eleventh Amendment. The Court held that \u00a7 2 of the Voting Rights Act abrogated the states\u2019 Eleventh Amendment immunity from suit.\n<\/p>\n

\nThe Court discussed Birmingham\u2019s demographics and the circumstances leading to the Act, and found it plausible that the Act burdens black citizens more than white ones. The Court found Plaintiffs alleged facts plausibly supporting a conclusion that the Act was enacted with a discriminatory purpose. The Court found that Plaintiffs have plausibly stated a claim against the Attorney General of Alabama of disparate impact and discriminatory intent in violation of the Equal Protection Clause of the Fourteenth Amendment. The Court affirmed the dismissal of all claims against all other Defendants.\n<\/p>\n

\nBostock v. Clayton Cty. Bd. of Commissioners<\/em>, 894 F.3d 1335 (11th Cir. 2018) (Denying Rehearing en Banc).<\/strong><\/p>\n

In Bostock v. Clayton Cty. Bd. of Commissioners,<\/em> 723 Fed. Appx. 964 (11th Cir. 5\/10\/18) (unpublished), a panel of the Court refused to overrule a prior panel\u2019s holding in Evans v. Ga. Reg\u2019l Hosp., 850 F.3d 1248, cert. denied, __ U.S. __ (2017), that Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) establishes in this Circuit that \u201c[d]ischarge for homosexuality is not prohibited by Title VII.\u201d In the current decision, two Judges dissented from the denial of rehearing en banc, to argue that legitimacy of the law demands that the Court explain why gender nonconformity claims are cognizable except when a person fails to conform to the gender stereotype by being attracted to the \u201cwrong\u201d gender.<\/p>\n

\nFernandez v. School Bd. of Miami-Dade Cty<\/em>.,___F.3d___, 2018 WL 3801616 (11th Cir. August 10, 2018).<\/strong>\n<\/p>\n

\nThe principal and asst. principal of a public school with severe physical and intellectual disabilities became interested in converting their school into a charter school. The School Board placed them under investigation, and they were eventually subject to discipline. Plaintiffs initiated an administrative proceeding and claimed that the reassignments and gag orders prohibiting them with interacting with potential witnesses during the investigations amounted to unlawful reprisal. A state ALJ concluded that the School Board committed an unlawful reprisal against them, and also found they acted pursuant to their official duties. The Fl. Dept. of Educ. adopted the ALJ\u2019s recommendation and awarded damages. They were not reinstated to their former positions. They sued under 42 U.S.C. \u00a7 1983 alleging the School Board infringed their rights to freedom of speech and association by subjecting them to adverse employment action. The district court granted the School Board\u2019s motion for summary judgment.\n<\/p>\n

\nSubmitted by:
<\/strong>Patricia T. Paul <\/strong><\/a>
\nAttorney at Law
\nOliver Maner LLP
\n218 W. State Street
\nP. O. Box 10186
\nSavannah, Georgia 31412
(912) 236-3311<\/font><\/font>
\n
\n(912) 429-3639 (cell)
ppaul@olivermaner.com
www.olivermaner.com<\/font><\/span><\/a><\/span><\/font><\/span><\/a><\/span><\/font><\/span><\/font><\/p>\n

\u00a0<\/font><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

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